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HomeMy WebLinkAbout2488Y c. AND PRIOR TAXES PAID / TAXPAYER SERVICES TRANSFER ENTERED NOV 9 110 AGREEMENT o IAN (Conditions to Parking Variance) jp THIS AGREE ENT, Made and entered into this z' day of �d U 2 Y 1995, by and between CSM INVESTORS, INC., a Minnesota corporation ( "Grantee ") and CITY OF EDINA, a Minnesota municipal corporation (the "City "); A. Grantee is the fee owner of certain real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and 6499718 B. Grantee proposes to construct on tine Property an approximately 4,200 square foot freestanding building to be used as a restaurant and to remodel the existing building located on the Property to reduce the size of the building to approximately 16,700 square feet and to provide a 14 foot wide drive through in the center of the building (together, the "Project "), which is to include parking and landscaping to be used in connection therewith (the Project, said parking and landscaping and the stacking spaces for the drive through being hereinafter called the "Improvements "); and C. Based upon the present proposed uses of the Improvements, the Property would need one hundred forty -six (146) parking spaces, following completion of the proposed Project, to comply with the City's zoning ordinances; and D. Grantee has submitted to the City a development plan for the Project which provides for a total of one hundred twenty -five (125) parking spaces to be constructed on the Property; and E. Grantee is further of the opinion that one hundred forty -six (146) parking spaces are not required for the operation of the Project and Improvements based on the present proposed uses, and it requested of the City Council a parking variance allowing the construction of the proposed Project; and F. Grantee is further of the opinion that the stacking spaces included in the Improvements are sufficient for the operation of the drive through, and that the operation of the drive through will not result in stacking of vehicles in a manner that disrupts traffic flow and parking on the Property or adjacent streets; and G. The City did, on February 6, 1995, in Case No. P -95 -1, approve the final development plan for the Project and grant the requested variance because strict enforcement of the City ordinances would, in this case, cause undue hardship because of circumstances unique to the Property, and the grant of such variances has t. been determined by the City to be in keeping with the spirit and intent of the applicable ordinances, but the parking variance was conditioned upon the execution, delivery, and recording of this Agreement, and upon the conditions hereinafter set out in this Agreement, which the City deems necessary to impose to ensure compliance with the applicable City ordinances and to protect adjacent properties; and H. Grantee is agreeable to the granting of the parking variance subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement; and NOW, THEREFORE, in consideration of the granting by the City of the above requested variance, and of the mutual covenants and agreements hereinafter contained, it is hereby agreed by and between the parties hereto as follows: 1. The City hereby confirms that it did, as above stated, approve the final development plan for the Project and grant a variance from its applicable ordinances whereby no additional parking spaces need be constructed on the Property, subject, however, to the terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine that additional parking spaces are required to serve the Property, Grantee will, at its sole cost and expense, promptly institute the following measures related to the operation of the Property and Improvements: Stage One: Grantee will restripe the parking lot so that the existing 125 stalls become 132 stalls, which will provide an additional 7 stalls. If the City Manager and City Planner determine, in their sole and absolute discretion, that the restriping of the parking lot does not alleviate the parking problem, the Grantee will promptly implement Stage Two described below. Stage Two: Grantee will prepare, submit and implement a parking management plan which will propose additional solutions to address parking problems, including, without limitation, provisions for off -site parking of employees during the periods where parking demands exceed the supply of parking. The Grantee will include language in its leases requiring participation by tenants in a parking management plan. Stage Three: In the event that the City Manager and City Planner determine that Stage One and Stage Two described above do not alleviate the parking problems, the City may deny new building permits or certificates of occupancy for or relating to new tenants or any expansion by existing tenants if the City Manager and City Planner determine such uses would cause an increase in the parking problems. -2- Notwithstanding anything herein to the contrary, Grantee shall not be required to provide on and off site parking for the Property in excess of the maximum number of spaces required by applicable City ordinances. The City Manager and the City Planner shall give written notice to Grantee of their determination that additional parking spaces are then required, setting forth in said notice the basis for their determination. Grantee, within thirty (30) days after such notice is given, shall institute the measures related to operation of the Improvements on a staged basis, as set forth above. The 30 -day period shall be extended for delays due to weather, labor disputes, material shortages or unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes beyond the reasonable control of Grantee, in which case the 30 -day period Shall be extended by a period of time equal to any such delays; provided, that no extension shall be given for any such delay unless written notice of such delay is given to the City within ten (10) days after the commencement of the delay. Once commenced, the staged measures shall be completed with all due diligence as soon as possible thereafter. The City shall be the sole judge of whether Grantee is using due diligence in completing such staged measures. 3. If the operation of the Improvements results in stacking of automobiles waiting to enter the drive through in a manner that disrupts the traffic flow or parking on the Property or on adjacent streets the Grantee agrees that it will, at its sole cost and expense, promptly institute such measures related to operation of the Improvements or to construct improvements to the Improvements that are reasonably acceptable to the City Manager and City Planner, in their sole and reasonable discretion, to eliminate such traffic flow and parking disruption. 4. If any term, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. 5. In the event that Grantee fails or refuses to fully comply with all of its obligations under the Agreement, or violates any of the provisions hereof, and such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Grantee, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City shall have the right to obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief. -3- All of the foregoing remedies shall be usable and enforceable by the City separately or concurrently as the City shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder in the event of a failure or refusal by Grantee, shall not preclude the City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantee agrees to pay to the City any and all costs and expenses incurred by the City in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the City at law or in equity, including attorneys' fees whether suit be brought or not, and with interest on all such costs and expenses at the rate of the lesser of twelve percent (12 %) per annum or the highest rate then allowed by law from the dates incurred by the City until paid. Grantee also agrees to pay all costs of collection of any monies due to the City from Grantee pursuant hereto, and of such costs and expenses incurred in enforcing this Agreement, with interest thereon, again including attorneys' fees and whether suit be brought or not, with interest at the rate of the lesser of twelve percent (12 %) per annum or the highest rate then allowed by law from the dates such costs of collection were incurred until paid. 6. All notices, reports, or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when personally delivered to any officer of the party to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To the City: 4801 West 50th Street Edina, Minnesota 55424 Attn: City Manager To the Grantee: 2575 University Avenue West Suite 150 St. Paul, Minnesota 55114 -1024 Attn: David Carland Such addresses may be changed by any party upon notice to the other party given as herein provided. 7. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, and shall run with the title to the Property and be binding upon all present and future owners of the Property. If there be at any future time more than one owner -4- of the Property, all of such then owners, while they are such owners, shall be jointly and severally liable for all obligations under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. CSM INVESTORS, INC. By L� -- Its k) -5- CITY OF EDINA By Its Mayor �, in STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoinginstrumenj was ackrjowledged before me this �d y of 1995, by C�e� . , the of CSM Investors, Inc., a Minnesota corporation, on behalf of said corporation. FPVICKI S. STAFFORD NOTARY PUBLIC - MINNESOTA RAMSEY COUNTY 44 Aga�� my Comm. Expires Jan. 31, 2000 wwwww ' V 7 Not Public STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The forego' instrument as acknowledge before met i may ,1995, the Mayor Mayor and Manager, respectively, of t e ity of Edina, a Minnesota municipal corporation, on behalf of said municipal corporation. This instrument drafted by: DORSEY & WHITNEY P.L.L.P. Pillsbury Center South 220 South Sixth Street Minneapolis, Minnesota 55402 IVA 1777ii EXHIBIT A LEGAL DESCRIPTION Lots 1 and the East 90 feet of Lots 20, 21 and 22, "GRAND VIEW HEIGHTS "; Lots 3 to 7 inclusive, Block 8, "TINGDALE BROS' BROOKSIDE "; That part of Hopkins Road, vacated, lying between lines drawn across it from the Southeast corner of Lot 7, Block 8, "Tingdale Bros' Brookside ", to the Northeast corner of Lot 1, Block 2, "Grand View Heights" and from the Southwest corner of Lot 5 in said Block 8 to the Northwest corner of the East 90 feet of Lot 22, in said Block 2, according to the recorded plats thereof. AND All of Lot 1 and Lot 2 except that part of said Lot 2 lying Northerly of the following described line: Beginning at a point on the East line of Lot 2 distant 20 feet South of the Northeast corner thereof; thence running Southwesterly to a point on the West line of said Lot 2 distant 40 feet South of the Northwest corner thereof, Block 8, "Tingdale Bros' Brookside ", according to the plat thereof on file or of record in the office of the Register of Deeds in and for said County. Hennepin County, Minnesota Being Registered land as evidenced by Certificate of Title No. 705092 AND That .part of ifopkins Road, vacated, and that part of Government Lot 5, Section 28, Township 117 North, Range 21 West and that part of Lots 20, 21, and 22, Block 2, Grand View Heights described as follows: Beginning at the Southwest corner of Lot 5, Block 8, Tingdale Bros' Brookside; thence South 23 Degrees 48 minutes 29 seconds West, assumed bearing, a distance of 66.27 feet to the Northwest corner of the East 90 feet of Lot 22, Block 2, Grand View Heights; thence South 00 degrees 15 minutes 00 seconds West along the West line of the East 90 feet of said Lots 20, 21 and 22, Block 2, a distance of 177.68 feet to the South line of said LOt 20, Block 2; thence North. 90 degrees 00 minutes 00 seconds West along the South line of said Lot 20, Block 2, a distance of 2.00 feet; thence North 00 degrees 15 minutes 00 seconds East, parallel with said West line of the East 90 --feet ..of-;Lots 20, 21 and 22, Block 2, a distance of 376.34 feet; thence South 89 degrees 45 minutes 00 seconds East, a distance 28.12 feet to the West line of Block 8, Tingdale Bros' Brookside; thence South 00 degrees 05 minutes 50 seconds West along West line of Block 8, a distance of 137.90 feet to the point of beginning, according to the recorded plats thereof. Hennepin County, Minnesota. 4`4 aq88 6499718 :O $4 OL M'kNLSOI A ',ND OR Fs. C u P;, rt N 95 NCV -9 Pami 3: 34 r� - , t PoZ I.. 7P! y