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AGREEMENT
(Conditions to Parking Variance)
THIS AGREEMENT, made and entered into this
day of 1982, by and between Jurchisin, Harding
& Edwards, Inc., a Minnesota corporation, ( "Owner "), and the
City of Edina, a Minnesota municipal corporation ("City").
WHEREAS, Owner is the fee owner of certaiT, real
property (the "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 an office /commercial building and parking to be used
in connection therewith, all being hereinafter called the
"Improvements "; and
WHEREAS, the present construction will have parking
for 477 automobiles as shown upon the site plan attached hereto
as Exhibit B; and
WHEREAS, Edina Ordinance No. 811 would presently
require parking for 530 automoblies; and
WHEREAS, Owner is of the opinion that not more than
477 parking spaces are required for the efficient and proper use
and operation of the Improvements, and has requested of the City
a variance allowing the construction of only 477 parking spaces
rather than the 530 parking spaces required by the present City
ordinances; and
WHEREAS, the City did, on January 7, 1982, in Case No.
B -82 -2, 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 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 Agree-
ment, and only upon the conditions hereinafter set out in this
Agreement, which the City deems necessary to impose to ensure
TRANSFER ENTERED
DEPARTMENT OF PROPERTY TAXATION
HEN
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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 an additional
53 parking spaces which are otherwise required by City ordinances.
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 :% sz;retion, 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 on the Property as the City
Planner and City Manager shall then require, up to the
maximum of 530 parking spaces; provided, however, that
this additional parking shall be constructed on the Property
pursuant.to the plan attached hereto as Exhibit C, and
nothing herein shall be construed to obligate Owner to
acquire additional property upon which to build such
additional parking. 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 additional parking spaces to be constructed from
time to time as they deem them necessary, until the
maximum number of 530 parking spaces have been constructed.
The additional parking spaces from time to time required
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by the City Manager and the City Planner shall be
built in full compliance with the then applicable City
ordinances except no more than 530 parking spaces shall
be required and the Exhibit C plan shall be followed.
Should any subsequent city ordinances require less than
530 parking spaces for the Property, as then developed,
then the maximum number required under the then applicable
city ordinances shall be the maximum number required here-
under for the then development, and any parking spaces (in
addition to the number of parking spaces then on the
Property) to be constructed on the Property pursuant hereto,
shall be constructed pursuant to said Exhibit C; provided,
however, that the number of parking spaces on the Property
at the time of adoption of any such ordinance requiring
less than 530 parking spaces shall remain and the number
of parking spaces then on the Property shall not be
decreased, nor any of such spaces removed, by virtue of
any Ouch ordinance.
b. The City Manager and the City Planner shall
give written notice to Owner and to any mortgagees of
record holding a first lien on all or any part of the
Property ( "Mortgagee ") of their determination that
additional parking spaces are then required, setting forth
in said notice the number of spaces then required to be
constructed on the Property, 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 Exhibit C or will submit a new
or revised plan for City approval. 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
on the Property pursuant to Exhibit C.
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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
rejected by the City, such additional parking spaces
shall be constructed pursuant to Exhibit C. The
90 -day commencement period above provided shall be
subject to extension by reason of delays due to weather,
labor disputes, material shortages or unavailability 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; t•_ ;j,,iued, that ni
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 construction shall be
completed with all due diligence as soon at possible
thereafter. The City shall be the sole judge of
whether Owner is using due diligence in completing
such construction.
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 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
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that Mortgagee complies with the following requirements:
a. Mortgagee shall (i) either begin construction
of the additional parking spaces which Owner was to have
constructed pursuant hereto, or begin efforts to acquire
possession of the Property by commencing a court action
to foreclose or a mortgage foreclosure 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 acquired 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 construction
with all due diligence. The City shall be the sole judge
of whether Mortgagee is using due diligence ir. 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 require-
ments for Mortgagee's undertaking in this Paragraph 3.
4. If Owner fails to commence the construction of
additional parking spaces pursuant to Subparagraph 2c hereof,
and if Mortgagee satisfies the requirement of Subparagraph 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, how -
ever, 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 ,
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hereof, and if Mortgagee fails to comply with all of the require-
ments 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 the variance described in this Agree-
ment, in which case Owner shall immediately construct
all parking spaces required by the then applicable
Ordinances;
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 here-
under which Owner and Mortgagee have failed or refused
to perform, or, at the City's discretion, for the purpose
of constructing all parking spaces shown on and pursuant
to Exhibit C whether or not then required hereunder 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
appropriate 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 there-
after 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 en-
forceable 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 hold
City harmless from and indemnify it against any loss, cost,
damage or expense including reasonable attorneys' fees, whether
suit be brought or not, arising out of any claims or demands
made by any person due to, or as a result of, Entry upon the
Property by City pursuant to Paragraph 5b hereof. Owner also
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 in equity, including attorneys' fees, whether suit be
brought or not, and with interest on all such costs and expenses
from the date 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 on such costs of collection
from the dates incurred until paid. Interest under this Agree -
ment shall be computed at the lesser of the following two rates:
(i) the highest rate which, from time to time, may legally be
charged, and (ii) two (2) percentage points over the prime rate
as the prime rate may from time to time change during the period
interest hereunder is being computed. For the purpose of this
Agreement, "prime rate" shall mean that rate of interest publicly
announced from time to time by First National Bank of
Minneapolis, or any successor thereto, as its prime rate,
or, if First National Bank of Minneapolis, or any successor
thereto, discontinues the practice of publicly announcing its
prime rate, then "prime rate" shall mean that rate of interest
then charged by the First National Bank of Minneapolis, or
any successor thereto, to its most creditworthy customers on
90 -day unsecured loans.
6. If any term, condition or provision of this
Agreement, or the application thereof to any person or
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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 wit, 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: Jurchisin, Harding & Edwards, Inc.
7900 West 78th Street
Suite 190
Edina, Minnesota 55435
To first lien To their addresses shown of
mortgagees of record, to their Minnesota
record: 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 an in-
clude all parties designated herein as Owner and, if more than
one, their liability hereunder shall be joint and several.
IN WITNESS WHEREOF, the parties hereto have caused
this instrument to be duly executed the day and year first
abcve written.
JURCHISIN, HARDING & EDWARDS,
INC.
By
Its /i,�(1 ✓� %
CITY OF EDINA
B c� U
Y
Its Mayor
And ,-
Its Manager
STATE OF MINNESOTA )
SS.
COUNTY OF HENNEPIN )
The for ox instrument was ackr�aled a be ore me
thi j41- day of � 1982, by �. w�
F�,� of Jurchisin, Harding & Edwards, Inc., a'�
Minnesota corporation.
STATE OF MINNESOTA
COUNTY OF HENNEPIN
A 964��
A1�Ea
WILLIAM E. BOWEN
"r tiA. NOTARY PUCLIC — MINNESOTA
HEINNt 'iN .'OUN i Y
SS. ••.: My Commission Expires Feb. 1, 1936
The fo goin instrument was acknowledged before me
this /a day of 0Qy� � 1982, by G L2)'n -44 �,: ` A , , , a
and l�.L_,_,_ 2 7 � J , Mayor andManager, - �j
respectively, of The City of Edina, a Minnesota municipal
corporation,-on behalf of the City.
THIS INSTRUMENT WAS DRAFTED BY:
William E. Bowen
40 Park Lane
Minneapolis, Minnesota 55416
Telephone: (612) 925 -1775
Notary Public
FLORENCE
B. HAL LBERG�
'
E;illl 1�
�N0L UuLIC — '6ilialv�SUTA
EPIN COUNI "YMy
Coon Expires Dec. 31, 1985
EXHIBIT A
Legal Description
Lot 3, Block 1, and the Easterly ninety -five (95) feet
of Lot 2, Braewood Park, Hennepin County, Minnesota,
according to the plat thereof on file and of record in
the Office of the Registrar of Titles in and for said
County.
EXHIBIT B
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' EXHIBIT C
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CONSENT AND SUBORDINATION
The undersigned, being the holder of the mortgage
on the Property as described in the-.Agreement (Conditions to
Parking Variance) to which this Consent and Subordination is
attached, which mortgage is dated Q� �, /9�`�
iv 101
and recorded as Document No. in the office of
the Registrar of Titles, Henne0in County, Minnesota, does hereby
subordinate its rights in the Property to, and agrees and consents
to, all of the terms and cond
this Consent and Subordinati
ns of, the Agreement to which
is attached, and agrees, for
itself and all future holders of the above - referenced mortgage
And all purchasers at foreclo:
lieu of foreclosure thereof, t
of, and subject to all of the
as defined in said Agreement.
STATE
SS
COUNTY OF k)Q,c0 ypr_V,
sale thereof and assignees in
be bound by all of the obligations
Iremedies available against, Owner,
MONY MORTGAGE INVESTORS
By
Its ViC_C fe^slbGUT-
r
The foregoing Consent and Subordination was acknowledged
efore me this day of 1982, by
bL':0F7- of MONY Mortgage Investors, a Massachusetts
Business Trust, on behalf of the.Trust.
Notary Publ�.c
PATRICIA DONAHOE .
NOTARY PUBLIC, State of New Yom
N'o. 31- 4515825 , '
Qualified In New York County
Term Expires March 30. 1984
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CONSENT AND SUBORDINATION
The undersigned, being the proposed Purchaser of the
Property as described in the Agreement (Conditions to Parking
Variance) to which this Consent and Subordination is attached,
and being the Purchaser pursuant to Agreement of Sale and Purchase
dated November 12, 1981, with
and Sale dated
Document No.
rt Form Agreement of Purchase
and being recorded as
the Office of .the Registrar of
Titles, Hennepin County, Minnesota, does hereby subordinate its
rights in the Property to, and agrees and consents to all of the
terms and conditions of the Agreement to which this Consent and
Subordination is attached, and agrees, for itself and all future
holders of the Purchaser's interest in the above-referred Agreement
of Sale and Purchase, to be bound by all,of the obligations of,
and subject to all of the remedies available against Owner, as
defined in saiO Agreement, in the event it becomes the owner of
the Property.
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK
By _
Its teti L�s,"De U
STATE OF W%,) Of-k )
) SS.
COUNTY OF y0e4--- )
The foregoing Consent and Subordination was acknowledged
before Re this _� day of 1982, byT-P wp i-,s J
VLY,c ���,`�cr.3T of The Mutual Life Insurance Company of
New York, a New York corporation, on behalf of the corporation.
Notary Public
PATRICIA DONAHUE
NOTARY PU81 -IC, State of New York
No. 31- 4515825 l
Qualified In New York County
Term Expires March 301 1984
tj _x - b ��
COQ y
e
OFFICE OF THE REGISTRAFt
OF TITLES
HENNEPIN COUNTY, M!I4NESOTI4
CERTIFIED FILED ON
00T 14 1982 9
REGISTRAR OF TITLES
BY DEPUTY,
Y. 1
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