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HomeMy WebLinkAbout2132Z 13z AGREEMENT (Conditions to Parking Variance) THIS AGREEMENT, made and entered into this 2L_� day of 1980, by and between GABBERT AND GABBERT COMPANY, a Minnesota' limited partnership ( "Owner ") with war r'rn L - (3 <<tc , General ?partner, and CITY OF EDINA, a Minnesota municipal corporation ( "City "); WHEREAS, Owner is the fee owner of certain real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described in Exhibit A attached hereto and hereby made a part hereof; and WHEREAS,-there is presently constructed on the property a shopping center and three commercial buildings and parking to be used in connection with said buildings, all being hereinafter called the "Improvements "; and WHEREAS, Owner proposes to construct upon the Property an addition to the shopping center building, and parking to be used in connection with said building (all also being hereinafter called the "Improvements "); and WHEREAS, there has been submitted to the City a parking plan ( "Plan ") , which Plan is on file with the City Planner of the City and is labeled "Galleria Proof of Parking" and is dated June 1, 1977, last revised April 2, 1980, by BRW. The Plan provides for two thousand seventy -six (2,076) parking spaces upon the Property, and which Plan meets the requirements of the applicable City ordinances except for certain setback variances; and iv'F-'REAS , Owner is of the opinion that not all of the oarkin c• spaces, as shown on the Plan, are require: for the effi cent and proper use and operation of the Inp ove- men , and" has requested of the Cite a variance 1 ar ance a. ow_nc :he construction only of fifteen hundred eighty (1,580) parking spaces rather than the two thousand seventy six (2,076) parking spaces shown on the Plan and required by the City ordinances, and a variance allowing the setbacks as shown in the Plan rather than the greater setbacks required by City ordinances; and WHEREAS, the City did, on March 15, 1979, in Case No. B -79 -6, grant the requested variances because strict enforcement of the City ordinances would, in this case, cause undue hardship because of circumstances unique to the Pro- perty, and the grant of such variances has been determined by the .City to be in keeping with the spirit and intent of the applicable ordinances, but subject to the execution, delivery, and recording of this Agreement, and only 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 .WHEREAS, Owner is agreeable to the granting of the variances subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement. NOW, THEREFORE, in consideration of the granting by the City of the above requested variances, 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, grant variances from its applicable ordinances whereby there need not now be constructed on the Property four hundred ninety six (496) parking spaces which are otherwise required. by City ordinances, and whereby if the additional parking is hereafter constructed pursuant to the Plan, the setback shall be as shown on the Plan, subject, however, to the following terms and conditions of this Agreement. -2- 2. The variances granted by the City are conditioned on the following requirements: a. That if the City Manager and the City Planner, in their sole discretion, shall hereafter determine that additional parking spaces are required on the Property, then Owner shall, at its sole cost and expense, construct such additional parking spaces as the City Planner and City Manager shall then require, up to the maximum of parking spaces shown on the Plan. The City Planner and the City Manager need not require that all of the additional parking spaces be constructed at any one time, but may require addi- tional parking spaces to be constructed from time to time as they deem them necessary, until the maximum number of parking spaces as shown on the Plan have been constructed. The addi- tional parking spaces from time to time required by the City Manager and the City Planner shall be built in full compliance with the Plan and the then applicable City ordinances except as such ordinances have been varied by the variance granted by the City on March 15, 1979, Case No. B -79 -6, in regard to parking setbacks which shall be as indicated on the Plan; pro- vided, however, that Owner may prepare and present to the City a new or revised parking plan for review and approval by the City, and if approved by the City, such additional parking spaces may then be constructed pursuant to said new or revised parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may then be waived by variances, if.any, then granted. b. The City Manager and the City Planner shall give written notice to Owner and to mortgagees of record holding a first lien on all or any part of the Property of their deter- mination that additional parking spaces are then required, setting -3- forth in said notice the number of spaces then required to be con- structed, up to the maximum shown in said Plan. Owner, within thirty (30) days after such notice is given, shall give written notice to the City as to whether or not it will construct such additional parking spaces pursuant to the Plan or will submit a new or revised plan as above allowed. In the event a new or revised plan is to be submitted, it shall accompany the notice given to the City. If no notice is given to the City within said 30 -day period, Owner shall be deemed to have agreed to construct such additional parking spaces pursuant to the Plan. c. Owner shall commence construction of such additional parking spaces as are then required by the City Manager and the City Planner within ninety (90) days after said notice is given by the City Planner and the City Manager unless Owner elects to submit a new or revised parking plan, in which case such construction shall commence within ninety (90) days after approval or rejection by the City of the proposed new or revised plan. If the new or revised plan is re- jected by the City, such additional parking spaces shall be con- structed pursuant to the Plan. The ninety (90) day construction period above provided shall be subject to extension by reason of delays due to weather, labor disputes, material shortages or un- availability of material, unavoidable casualty, acts of God, or other causes beyond the reasonable control of Owner, in which case the 90 -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 com- menced, the construction shall be completed with all due dili- gence as soon as possible thereafter. The City shall be the sole judge of whether Owner is using due diligence in completing. such construction. -4- 3. In the event that Owner fails or refuses to comply with all of the obligations of Owner under this Agreement, the City shall send Owner and all mortgagees of record holding a first lien on all or any part of the Property ( "mortgagee ") written notice of Owner's failure or refusal. If such failure or refusal continues for a period of thirty (30) days after notice thereof is given to Owner and mortgagee, mortgagee may, but shall not be obligated to, perform Owner's obligations hereunder. The City agrees to accept such performance by mortgagee as performance by Owner, provided that mortgagee complies with the following requirements: 0 a. Mortgagee shall (i) either begin construction of the additional parking spaces which Owner was to have con- structed pursuant hereto, or begin efforts to acquire possession of the Property by commencing a court action or a mortgage fore- closure by advertisement within ninety (90) days of the date mortgagee received such notice; and (ii) if mortgagee decides to acquire possession of the Property by mortgage foreclosure, commence construction by the earlier of the following dates: (1) the date which is sixty (60) days after the date when mortgagee acquires possession of the Property; or (2) the date which is eighteen (18) months after the date when mortgagee received notice from the City of Owner's failure or refusal. b. Once begun, mortgagee shall complete con- struction with all due diligence. The City shall be the sole judge of whether mortgagee is using due diligence in completing such construction. The City agrees not to exercise any of the remedies available to it for Owner's failure or refusal unless and until mortgagee fails to comply with all of the requirements for mortgagee's undertaking in this Paragraph 3. 4. If Owner fails to commence the construction of additional parkinc spaces pursuant to Subparagraph 2c hereof, and if mortgaaee _=_=tisfies the requirement of Subparagraph -5- 3a(i) hereof, then the City agrees to permit mortgagee to submit a new or revised parking plan for review and approval by the City, and if approved by the City, the additional parking spaces may be constructed pursuant to the new or revised plan; provided, however, that the submission of such plan shall in no event postpone the date by which mortgagee shall commence construction pursuant to Subparagraph 3a(ii) hereof. 5. If Owner fails or refuses to comply with all of the obligations and requirements of Owner in Paragraphs 2 and 3 hereof, and if mortgagee fails to comply with all of the requirements set forth in Paragraph 3 hereof for mortgagee's undertaking, then in addition to any other remedies available to the City at law or in equity, the City shall have the right to: a. revoke either or both of the variances described in this, Agreement, in which- case-, Owner shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan (without the setback variance, if that variance is revoked by the City) and all then applicable ordinances of the City; b. enter upon the Property with such men, equip- ment and materials as the City deems necessary for the purposes of performing the obligations of Owner hereunder which Owner and mortgagee have failed or - refused to perform, or, at the City's discretion, of constructing all parking spaces shown on and pursuant to the Plan, whether or not then required here- under to be constructed, without liability or obligation of any kind to any owner or occupant of the Property for trespass or damage to the Property, the Improvements, or other property or improvements thereon; C. obtain enforcement of this Agreement against Owner by court order for mandatory injunction or other appro- priate relief; and d. revoke, or withhold and deny., any building permits, certificates of occupancy, utility connection permits and any other permits and approvals previously granted, issued or given by the City, or then or thereafter to be granted, issued or given by the City, for the construction or occupancy of any or all of the Improvements, until such failure or refusal ends and the obligations of Owner are fully complied with. 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 one or more of the remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder in the event of a failure or refusal by Owner shall not preclude the City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Owner agrees to pay to the City any and all costs and expenses incurred by City in enforcing this Agreement by use of the remedies set out above or by other remedy or means available to City at law or inequity, including attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at eight percent (8%) per annum from the dates incurred by City until paid, and Owner also agrees to pay all costs of collection of such costs and expenses, with interest thereon, again including attorneys' fees and whether suit be brought or not, with interest at eight percent (8 %) per annum on such costs of collection from the dates incurred until paid. 6. If any term, condition, or provision of this Agreement, or the application thereof to any person or cir- cuunstance, 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 circum- stances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this 'Ic_eement, and a"! the terms, provisions, and conditions -7- hereof, shall, in all other respects, continue to be effective and to.be complied with to the full extent permitted by law. 7. 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 delivered personally 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 City: City of Edina 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Owner: Gabbert and Gabbert Company 3510 West 70th Street Edina, Minnesota 55435 Attention: Warren Beck To first lien mort- gagees of record: To their address shown of re- cord, to their Minnesota address, or to the address given to the City, as selected by.-the City. The address of City and Owner may be changed by either party upon notice to the other party given as herein provided. 8. 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. References herein to Owner shall mean and include all parties designated herein as Owner and, if more than one, their liability hereunder shall be joint and several. -8- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. GAB ERT AND GAB RT COMPANY By A A A s General VP&rtfiiir CITY W ED By STATE OF MINNESOTA) SS. COUNTY OF HENNEPIN) Manager R� The foregoing instrument was acknowledged before me this;3 V day of Apo. \ , 19819, by LJ Pte -erg L, 8,,F—CK , General Partner of GABBERT AND GABBERT COMPANY, a Minnesota limited partnership on behalf of said limited partnership. Not Public STATE OF MINNESOTA) DIANA L GILBERTSON „m NOTARY 4UBM — MINNESM COUNTY OF HENNEPIN) RW The fore g oing instrument was acknowled ed b fore me t�iIJ604$-9'4A sjay f Flu, 19$B, by.� y and [r$� , Mayor•and Manager, respectively of nhe CITY -OF EDINA, a Minnesota municipal corporation, on behalf of the city. tary CRAIG L. LARSEN Z NOTARY PUBLIC • MINNESOTA HENNEPIN COUNTY �•`•s—S! My Commission Expires Sept. 15, 1984 CONSENT AND SUBORDINATION The undersigned, being the holder of one mortgage on the Property as described in the Agreement (Conditions to Park- ing Variance) to which this Consent and Subordination is attached, which mortgage is ' dated S 14, , 4 /170 , and recorded as Document No. 974922 in the office of the Registrar of Titles, Hennepin County, Minnesota, does hereby agree and consent to all of the terms and conditions of the Agreement to which this Consent and Subordination is attached, and agrees, subject to the proviso below,-to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Agreement, in the event it becomes the owner of the Property; provided, how- ever, that'is understood that the aforesaid mortgage does not extend to all of the property subject to said agreement, and the under- signed agrees to be bound by obligations relating to and remedies available with respect to the property subject to its mortgage. MINNESOTA FEDERAL SAVINGS AND LOAN ASS CIATION BY Its I is m C11o. STATE OF MINNESOTA) )SS COUNTY OF,i%t Z •/ ) The foregoing Consent nd Subordination was cknowledge before me this oZ/ day of `Q�; 1980, by c ,`` and Cyy-dau r! lii �,,,t re p tively, of Minnesota Feder Savings and Loan Association, a;;,, orporation, on behalf of the corporation. ROBERT A. Nc1INSTRY z�ui �.t NOTARY PUBLIC - MINNESOTA � � HENNEPIN COUNTY Notary Publ ' G ' M rORim. Expires Mar. 20, xvwwwwvvvvvvvvvvvvrvwvvyy� -yv r. CONSENT AND SUBORDINATION The undersigned, being the holder of two mortgages on the Property as described in the Agreement (Conditions to Parking Variance) to which this Consent and Subordination is attached, which mortgages are dated February 20, 1974 and August 3, 1977, and recorded as Document Nos. 1099555 and 1230789, respectively, in the office of the Registrar of Titles, Hennepin County, Minnesota, does hereby agree and consent to all of the terms and conditions of the Agreement to which this Consent and Subordination is attached, and agrees to be bound by eL11 of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Agreement, in the event it becomes the owner of the Property. �T Cl�m•�,cNlv4ALrN cr r%7,95Sgc,/dsirrs -STATE -O•F ) SS. COUNTY OF NEW ENGLAND MUTUAL LIFE The foregoing Consent and Subordination was acknowl- edged before me this G 4�- day of oto, ,qX , by KEVIN M. MAHONY and � A I �,' ;° i 1 t'I.. i i i 1 �i r respectively, of New England Mutual 1ife'7Insurance CCo.;T& Massachusetts corporation, on behalf of the corporation. Notary Public Brenda Ellen Pepe NOTARY PUBLIC Commonweai:h of h ";y Commissicr. Expires '. arc'n 12, 1 87 -10- I J OFFICE OF THE REGISTRAR 33 OF TITLES HENNEPIN COUtITY, MINNESOTA CERTIFIED FILED ON JUL 3 11980 7 At GISTRAR �f, I OF TITLES ,DEPUTY V it 6 � ' ? � ; 981 EXHIBIT A TRACTS A, C AND D, REGISTERED LAND SURVEY 1171, FILES OF THE REGISTRAR OF TITLES, HENNEPIN COUNTY, STATE OF MINNESOTA. TRACTS A AND B, REGISTERED LAND SURVEY 1366, FILES OF THE REGISTRAR OF TITLES, HENNEPIN COUNTY, STATE OF MINNESOTA, EXCEPT THAT PART OF SAID TRACT B EMBRACED WITHIN REGISTERED LAND SURVEY 1466. TRACTS A, B AND C, REGISTERED LAND SURVEY 1466, FILES OF THE REGISTRAR OF TITLES, HENNEPIN COUNTY, STATE OF MINNESOTA. Vr EXHIBIT A TRACTS A, C AND D, REGISTERED LAND SURVEY 1171, FILES OF THE REGISTRAR OF TITLES, HENNEPIN COUNTY, STATE OF MINNESOTA. TRACTS A AND B, REGISTERED LAND SURVEY 1366, FILES OF THE REGISTRAR OF TITLES, HENNEPIN COUNTY, STATE OF MINNESOTA, EXCEPT THAT PART OF SAID TRACT B EMBRACED WITHIN REGISTERED LAND SURVEY 1466. TRACTS A, B AND C, REGISTERED LAND SURVEY 1466, FILES OF THE REGISTRAR OF TITLES, HENNEPIN COUNTY, STATE OF MINNESOTA.