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HomeMy WebLinkAbout2096AGREEMENT (Conditions to Parking Variance) [West Part of Lot 2, Block 1, Yorktown Second Addition] THIS AGREEMENT, Made and entered into this 26th day of April 1979, by and between YORK CONDO, INC., a Minnesota corporation [ "York "], and CITY OF EDINA, a Minnesota municipal corporation [ "City "]; WHEREAS, York 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 WHEREAS, York proposes to construct upon the Prop- erty a multifamily building and accessory buildings, and parking to be used in connection with said buildings [all being hereinafter called the "Improvements ".]; and WHEREAS, there has been submitted to the City a parking plan [ "Plan "], which Plan is attached hereto as Exhibit B and hereby made a part hereof, and which Plan provides for Two Hundred Seventy -six (276 ) parking spaces upon the Property, 175 of which are enclosed,and 101 of which are exposed, parking spaces,and which Plan meets the requirements of the applicable City ordinances; and WHEREAS, York [hereinafter sometimes called "Owner "] is of the opinion that not all of the exposed parking spaces, as shown on the Plan, 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 seventy- five (75) exposed parking spaces rather than the one hundred one (101) exposed parking spaces as shown on the Plan and re- quired by the City ordinances; and WHEREAS, the City did, on February 15 , 19 79 , in case No. B -79 -1, 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 variance 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 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. 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, grant a variance from its applicable ordinances whereby there need not now be constructed on the Property twenty -six (26) exposed parking spaces, which are otherwise required by City ordinances, subject, however, to the following terms and con- ditions of this Agreement. 2. The variance granted by the City is conditioned on the following requirements: a. That if the City Manager and the City Planner, in their sole discretion, shall hereafter determine that additional exposed parking spaces are required on the Property, then Owner will, at its sole cost and expense, -2- construct such additional exposed parking spaces as the City Planner and City Manager shall then require, up to the maxi- mum number of exposed parking spaces shown on the Plan. The City Planner and the City Manager need not require that all of the additional exposed parking spaces be constructed at any one time, but may require additional parking spaces to be con- structed from time to time as they deem them necessary, until the maximum number of exposed parking spaces as shown on the Plan have been constructed. The additional exposed 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; I provided, 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 ap proved by the City, such additional exposed parking spaces may then-.be constructed pursuant to said new parking plan, as approved, and subject to the then applicable ordinances of the City. (i) The City Manager and City Planner shall give written notice to Owner of their determination that additional exposed parking spaces are then required, setting forth in said notice the number of spaces then required to be constructed, 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 addi- tional exposed parking spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new 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 spaces pursuant to the Plan. -3- (ii) Owner shall commence construction of such additional exposed parking spaces as are then required by the City Manager and City Planner within ninety (90) days after said notice is given by the City Planner or City Manager unless Owner elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after ap- proval or rejection by the City of the proposed new plan, subject, however, to extensions. of said 90 -day period 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; 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 con- struction shall be completed with all due diligence as soon as possible thereafter. b. That Owner shall construct, or cause to be constructed, on or before September 1, 1979, upon the real property [" Condominium Property "] adjoining the Property and described on Exhibit C attached hereto and hereby made a part hereof, fifty (50) exposed parking spaces additional to those presently on the Condominium Property, in full compliance with the plan [ "Condominium Plan "] attached hereto as Exhibit D and hereby made a part hereof, and in full compliance with applicable City ordinances I and without cost to City or to any owners, occupiers, or encumbrancer.s of the Condominium Prop- erty (other than Owner, if Owner has an _interest in the Condominium Property). Owner shall receive an extension of time for construction beyond September 1, 1979, only because of reason of delays' due to weather, labor disputes, material -4- shortgages or unavailability of material, unavoidable casualty, acts of God, or other causes beyond the reasonable control of Owner,, in which case the September 1, 1979, deadline 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 City within ten (10) days after the commencement of the delay. 3. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unenforce- able, 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 unenforce- able 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. 4. All notices, reports, or demands required or per- mitted 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: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager. To Owner: York Condo Inc. 5215 Edina Industrial Blvd. Attention: V. Bernardi Such addresses may be changed by either party upon notice to the other party given as herein provided. -5- 5. In the event that Owner fails or refuses to fully comply with all of its obligations under this Agreement, and such failure or refusal continues for a period of thirty (30) days after notice thereof is given to Owner, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City may (i) revoke the said variance, in which case Owner shall immediately construct all exposed parking spaces required by the Plan, in full compliance with the Plan and all then applicable ordinances of the City, or (ii) enter upon the Property with such men, equipment, and materials as the City deems necessary for the purpose of performing the obligations of Owner hereunder that it has then failed or refused to perform, or, at City's discretion, of constructing all exposed parking spaces shown on and pursuant to the Plan, 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, (iii) obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief, or (iv) 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 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 con- currently 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 Owner shall not preclude 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 above set out or by other remedy or means available to City at law or in equity, in- cluding attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at ten (10 %). percent 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 ten (100) percent per annum on such costs of col- lection from the dates incurred until paid. 6. 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 their liability hereunder shall be joint and several, and if there be at any future time more than one owner 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. -7- �F IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. YOE by and CITY OF EDINA by Its Maybr and -71ts Manage This instrument drafted by: DORSEY, WINDHORST, HANNAFORD, WHITNEY & HALLADAY [TSE] 2500 First National Bank Building Minneapolis, Minnesota 55402 STATE OF MINNESOTA ] ] COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this 26th day of April , 1979, by V. Bernardi and J. Klungness , President and Secretary , respectively, of YORK CONDO, INC., a Minnesota corporation, on behalf of the corporation. 1 9my WILLIAM G. BALE NOTARY PUBLIC — MINNESOTA HENNEPIN COUNTY Commission Expires Dec. 13, 1981 STATE OF MINNESOTA ] ] COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this ► 2- day of I�r{ZCi� , 1979, by C , W Ayae- C ou IeTN E ra le'" MiEIS Pd hi . and KENNETH E. ROSLAND, Mayog and Manager, respectively, of CITY OF EDINA, a Minnesota municipal corpora -` tion, on behalf of the City. CPA (', L LARsr -N :'1`Yr I1QA4F: N071 11Y F!"KiC rNscra My Cor".MisSior. Expircs Sep,. 1�, 1034 EXHIBIT A To Agreement (Conditions to Parking Variance) between YORK CONDO,.INC., and CITY OF EDINA That part of Lot 2, Block 1, lying Westerly of the following described line, and its Northerly extension: Commencing at the Northeast corner of said Lot 2; thence South 89 degrees 46 minutes 22 seconds West, assumed basis for bearings, along the north line thereof, 547.26 feet, to the point of beginning; thence South 00 degrees 05 minutes 10 seconds East, 352.02 feet to the South line of,said Lot 2 and there terminating, Yorktown Second Addition, according to the plat thereof on file or of record in the office of the Registrar of Titles in and for said. County, -- 1 t`"' . F�►�f'� SHEET comm. No. KOOSUNSKY • KRANK ARCMITECTS. INC. / N121 54"251 DRAWN 00 SO. COUNTY RD. is / WNNEAPOLIS, MINN. 55428 . . OF EXHIBIT C To Agreement (Conditions to Parking Variance) between YORK CONDO, INC., and CITY OF EDINA [Condominium Property] That part of Lot 2, Block 1, lying Easterly of the following described line, and its Northerly exten- sion: Commencing at the Northeast corner of said Lot 2; thence South 89 degrees 46 minutes 22 seconds West, assumed basis for bearings, along the north line thereof, 547.26 feet, to the point of begin - ning; thence South 00 degrees 05 minutes 10 seconds East, 352.02 feet to the South line of said Lot 2 and there terminating, Yorktown Second Addition, according to the plat thereof on file or of record in the office of the Registrar of Titles in and for said County. _ ......�...- ".......___.- +►....__...:ter ..t. -.. -.. `--- �- .- .� -�.._ ._..- _.._...� �. �.. -.,.r i►,GK _. _. lvr � •.1 i+y _ _ . � 2jt� - 111 ' L'•. 5 T l u I L 1 �. N 0 T E : 5HP.oiN 1 K D I C AT CS I4 E 7,4 PAV f i IdE 0 ENGLosto sTAG RA ; 161 i, EAT EPloFZ- EYEIST �2 i ez t E7-,TERIDR —NE Gjp t (PROPOSED) -- - TOTAL STS. LL5 244 0 5 ARE H AN Dl6kPPea) S TE PLkNl ♦ RE 145 E P PROOF OP PARKIN ®k4�0RK PLAZ#�, CONDOM N1 LIMS e DATE SHEET COMM. NO. 1 Cf Y 7$ ° 8� KORSUNSKY • KRANK ARCHITECTS, INC. 1 1612) 648.6381 DRAWN NO SO. COUNTY RD. 19 / MINNEAPOLIS, MINN. 55428 OF AGREEMENT (Conditions to Parking Variance) [West Part of Lot 2, Block 1, Yorktown Second Addition] THIS AGREEMENT, Made and entered into this 26th day of April , 1979, by and between YORK CONDO, INC., a Minnesota corporation [ "York "], and CITY OF EDINA, a Minnesota municipal corporation [ "City WHEREAS, York is the fee owner of certain real property [ "Property "] located iri the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, York proposes to construct upon the Prop- erty a multifamily building and accessory buildings, and parking to be used in connection with said buildings [all being hereinafter called the "Improvements "]; and III WHEREAS, there has been submitted to the City a parking plan ["Plan"], which Plan is attached hereto as Exhibit B and hereby made a part hereof, and which Plan provides for Two Hundred Seventy -Six ( 276 ) parking spaces upon the Property, 175 of which are enclosed,and 101 of which are exposed, parking spaces and which Plan: meets the requirements of the applicable City ordinances; and WHEREAS, York [hereinafter sometimes called "Owner "] is of the opinion that not all of the exposed parking spaces, as shown on the Plan, 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 seventy - five (75) exposed parking spaces rather than the one hundred one (101) exposed parking spaces as shown on the`Plan and re- quired by the City ordinances; and i -. a11� aGdYiY� �Waetsah WHEREAS, the City did, on February 15 , 19 79 , in case No. B -79 -11 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 variance 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 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. 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, grant a variance from its applicable ordinances whereby there need not now be constructed on the Property twenty -six (26) exposed parking spaces, which are otherwise required by-City ordinances, subject, however, to the following terms and con- ditions of this Agreement. 2. The variance granted by the City is conditioned on the following requirements: a. That if the City Manager and the City Planner, in their sole discretion, shall hereafter determine that additional exposed parking spaces are - required on the Property, then Owner will, at its sole cost and expense, �2- r.� construct such additional exposed parking spaces as the City Planner and City Manager shall then require, up to the maxi- mum number of exposed parking spaces shown on the Plan. The City Planner and the City Manager need not require that all of the additional exposed parking spaces be constructed at any one time, but may require additional parking spaces to be con- structed from time to time as they deem them necessary, until the maximum number of exposed parking spaces as shown on the Plan have been constructed. The additional exposed 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; provided, 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 ap -' proved by the City, such additional exposed parking spaces may then --be constructed pursuant to said new parking plan, as approved, and subject to the then applicable ordinances of the City. (i) The City Manager and City Planner shall give written notice to Owner of their determination that additional exposed parking spaces are then required, setting forth in said notice the number of spaces then required to be constructed, 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 addi- tional exposed parking spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new 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 spaces pursuant to the Plan. -3- (ii) Owner shall commence construction of such t. additional exposed parking spaces as are then required by the City Manager and City Planner within ninety (90) days after said notice is given by the City Planner or City Manager unless Owner elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after ap- proval or rejection by the City of the proposed new plan, subject, however, to extensions of said 90-day period 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; provided, that no extension shall be given for any such delay unless written notice of such delay is given to the City within ten (1.0) days after the commencement of the delay. Once commenced, the con- struction shall be completed with all due diligence as soon as possible thereafter. b. That Owner shall construct, or cause to be constructed, on or before September 1, 1979, upon the real property [ "Condominium Property "] adjoining the Property and described on Exhibit C attached hereto and hereby made a part hereof, fifty (50) exposed parking spaces additional to those- presently on the Condominium Property, in full compliance with the plan [ "Condominium Plan "] attached hereto as Exhibit D and hereby made a part hereof, and in full compliance with applicable City ordinancesland without cost to City or to any owners, occupiers, or encumbrancers of the Condominium Prop- erty (other than Owner, if Owner has an interest in the Condominium Property). Owner shall receive an extension of time for construction beyond September 1, 1979, only because of reason of delays due to weather, labor disputes, material -4- t E shortgages or unavailability of material, unavoidable casualty, acts of God, or other causes beyond the reasonable control of Owner, in which case the September 1, 1979, deadline 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 City within ten (10 ) days after the commencement of the delay. 3. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall., to any extent, be held to be invalid or unenforce- able, 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 unenforce- able 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. 4. All notices, reports, or demands required or per- mitted 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: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager. To Owner: York Condo Inc. 5215 Edina Indt?stria Blvd- Attention: V. Bernardi Such addresses may be changed by either party upon notice.to the other party given as herein provided. -5- shortgages or unavailability of material, unavoidable casualty, acts of God, or other causes beyond the reasonable control of Owner, in which case the September 1, 1979, deadline 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 City within ten (10 ) days after the commencement of the delay. 3. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall., to any extent, be held to be invalid or unenforce- able, 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 unenforce- able 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. 4. All notices, reports, or demands required or per- mitted 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: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager. To Owner: York Condo Inc. 5215 Edina Indt?stria Blvd- Attention: V. Bernardi Such addresses may be changed by either party upon notice.to the other party given as herein provided. -5- fully comply with all of its obligations under this Agreement, and such failure or refusal continues for a period of thirty (30) days after notice thereof is given to Owner, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City may (i) revoke the said variance, in which case Owner shall immediately construct all exposed parking spaces required by the Plan, in full compliance with the Plan and all then applicable ordinances of the City, or (ii) enter upon the Property with such men, equipment, and materials as the City deems necessary for the purpose of performing the obligations of Owner hereunder that it has then failed or refused to perform, or, at City's discretion, of constructing all exposed parking spaces shown on and pursuant to the Plan, 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,. (iii) obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief, or (iv) 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 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 con- currently 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 Owner shall not preclude 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 above set out or by other remedy or means available to City at law or in equity, in- cluding attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at ten (10 %). percent 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 ten (100) percent per annum on such costs of col- lection from the dates incurred until paid. 6. 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 e n and include all parties designated herein as Owner and their liability hereunder shall be joint and several, and if there be at any future time more than one owner 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. YORK CONDO INC. r by Its I S14 hT and Its _ w This instrument drafted by: DORSEY, WINDHORST, HANNAFORD' WHITNEY & HALLADAY [TSE] 2500 First National Bank Building Minneapolis, Minnesota 55402 -8- STATE OF MINNESOTA COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this 26th day of April 1979, by V. Bernardi and J. Klungness President and Secretary respectively, of YORK CONDO, INC., a Minnesota corporation, on behalf of the corporation. '0 WILLIAM G. BALE NOTARY PUBLIC — MINNESOTA HENNEPIN COUNTY my commission Expiros Dec. 13,1981 9�1 STATE OF MINNESOTA COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me i7r(4- 11 Al2,a this day of 1979, by C. (QAYA).C- c-'0,xe.1r,-JjrV .,. -i- - lag M" VAb!WsN94RG and KENNETH E. ROSLAND, Mayor-and Manager, respectively, of CITY OF EDINA, a Minnesota municipal corpora- tion, on behalf of the City. -*0' -9- CRAIG L. LARSEN. -4 HENN7,1,",i C W'�'iY My Com m�s3;3n Em i, es Sept. 15, 1984 EXHIBIT A To Agreement (Conditions to Parking Variance) between YORK CONDO,.INC., and CITY OF EDINA That part of Lot 2, Block 1, lying Westerly of the following described line, and.its Northerly extension: Commencing at the Northeast corner of said Lot 2; thence South 89 degrees 46 minutes 22 seconds West, assumed basis for bearings, along the north line thereof, 547.26 feet, to the point of beginning; thence South 00 degrees 05 minutes 10 seconds East, 352.02 feet to the South line of,said Lot 2 and there terminating, Yorktown Second Addition, according to the plat thereof on file or of record in the office of the Registrar of Titles in and for said - County. — n , EXHIBIT C To Agreement (Conditions to Parking Variance) between YORK CONDO, INC., and CITY OF EDINA [Condominium Property] That part of Lot 2, Block 1, lying Easterly of the following described line, and its Northerly exten- sion: Commencing at the Northeast corner of said Lot 2; thence South 89 degrees 46 minutes 22 seconds West, assumed basis for bearings, along the north line thereof, 547.26 feet, to the point of begin- ning; thence South 00 degrees 05 minutes 10 seconds East, 352.02 feet to the South line of said Lot 2 and there terminating, Yorktown Second Addition, according to the plat thereof on file or of record in the office of the Registrar of Titles in and for said County. 4vpk* ! I t Val I -- . . — Im ion p- Et r-T f "wjpvm;j*= dL 6pf . �-T,( EYLT t Fi 0 fz- E--f- ST (PROPOSED) ca T 50 To-rA-L ST,&,LLS 1144 5 #,RE H 1%1N D4AIppeD) PROOF NO-rt: T i I E�u I I—DI qq m- 0 I ) 6el 351 tr DATE SHEET -AfmLo VAI 19*15 COMM. NO. Cf T5 61 KORSUNSKY • KRANK ARCHITECTS, INC. (612164"381 DRAWN 600 SO. COUNTY RD. 18 / MINNEAPOLIS. MINN. 55426 OF 209d, •` 1339353 .3 + RFGtSfewe , • i� oulm Of -MF- RSVS--TR OF Taus MMMEPIN COUNTY, Ik1INfwsDTX CEWIF W HLED ON Do � Z o 96 AGREEMENT (Conditions to Parking Variance) [East Part of Lot 2, Block 1, Yorktown Second Addition) THIS AGREEMENT, Made and entered into this /Z day of MA , 198$, by and between YORK CONDO, INC., a Minnesota corporation [ "York "], CITY OF EDINA, a Minnesota municipal municipal corporation [ "City "), and YORK CONDO ASSOCIATION, INC., a Minnesota non - profit corporation [ "Association "]; WHEREAS, York and the City entered into an Agreement (Conditions to Parking Variance) dated April 26, 1979, and filed July 20, 1979, in the office of the Registrar of Titles, Hennepin County, Minnesota, as Document No. 1339353 [the "Parking Agreement "]; and WHEREAS, by the terms of said Parking Agreement, York was to construct upon the property described in Exhibit A at- tached hereto and hereby made a part hereof [the "Condominium Property "], on or before September 1, 1979, fifty (50) exposed Narking spaces additional to those then on the Condominium Pro- perty in full compliance with a plan [the "Condominium Plan "] attached to the Parking Agreement as Exhibit D and in full compliance with applicable City ordinances and without cost to the City or to any owners, occupiers or encumbrancers of the Condominium Property (other than York, if York has an interest in the Condominium Property); and WHEREAS, twenty -two (22) of the fifty (50) parking spaces have been constructed and the Association has requested that the balance of the parking spaces to be constructed be reduced from twenty -eight (28) to twenty -six (26) parking spaces, being the twenty -six (26) spaces shown on the Condominium Plan as lying East of the East line of the building on the Con- dominium Property [the "Deferred Parking Spaces "], and that the requirement to construct the same be deferred; and r° WHEREAS, York is agreeable to such reduction and deferment, but desires to be released from its obligations to construct the additional parking spaces pursuant to the Condominium Plan, and City and the Association are willing to so release York on'the terms and conditions hereinafter set out; and WHEREAS, City is agreeable to such reduction and deferment, all on the terms and conditions hereinafter set out; and WHEREAS, the City did, on November 17, 1980, in Case No. B- 80 -47, grant the requested variance reducing the number of parking spaces to be constructed from twenty -eight (28) to twenty -six (26) and deferring their construction for a six (6) month period, because the strict enforcement of the City ordinances would, in this case, cause undue hardship be- cause of circumstances unique to the Condominium Property, and the grant of such variance has been determined by the City to be in keeping with the spirit and intent of the appli- cable ordinances, but subject to execution, delivery and re- cording of this Agreement, and only upon the conditions herein- after set out in this Agreement, which the City deems necessary to impose to insure compliance with the applicable City ordi- nances and to protect adjacent properties. NOW, THEREFORE, in consideration of the granting by the City of the above requested parking variance and deferment of the prior variance, and of the mutual covenants and agree- ments hereinafter contained, it is hereby agreed by and between the parties hereto as follows: 1. City hereby confirms that it did grant a vari- ance from its applicable ordinances and from the Parking Agree- ment whereby there need not now be constructed on the Condo- minium Property the Deferred Parking Spaces pursuant to the terms and conditions of the Parking Agreement, subject, how- ever, to the following terms.and conditions of this Agreement. -2- a 2. If the City Manager and the City Planner, in their sole discretion, shall hereafter determine that addi= tional exposed parking spaces are required on the Condominium Property, then Association will, at its sole cost and expense, construct, pursuant to the Condominium Plan, such additional exposed parking spaces as the City Planner and City Manager shall then recuire, up to the maximum number of twenty -six (26) exposed parking spaces, such construction to be in the location of the Deferred Parking Spaces shown on the Condo- minium Plan. The City Planner and City Manager need not re- quire that all of the additional exposed 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, util all of the Deferred Parking Spaces as shown on the Condominium Plan have been constructed. The additional exposed parking spaces from time to time required by the City Manager and the City Planner shall be built in full compliance with the Condominium Plan and the then applicable City ordi- nances; provided, however, that Association 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 exposed parking spaces may then be constructed pur- suant to said new parking plan, as approved, and subject to the then applicable ordinances of the City. (i) The City Manager and City Planner shall give written notice to Association of their determination that additional exposed parking spaces are then required, setting forth in said Notice the number of spaces then required to be constructed, up to the maximum of the Deferred Parking Spaces. Association, within thirty (34) days after such notice is given, shall give written notice to the City as to whether or not it will construct such additional exposed parking spaces -3- s pursuant to the Condominium Plan or will submit a new plan — as above allowed. In the event a new 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, Asso- ciation shall be deemed to have agreed to construct such ad- ditional spaces pursuant to the Condominium Plan. (ii) Association shall commence construction of such additional exposed parking spaces as are then required by the City Manager and City Planner within ninety (90) days after said notice is given by the City Planner or City Manager unless Association elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after approval or rejection by the City of the proposed new plan, subject, however, to extensions of said 90 -day period 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 Association, in which case the 90 -day period shall be extended by a period of time equal to any such delays; pro- vided, that no extension shall be given for any such delay unless written notice of such delay is given to the City with- in ten (10) days after the commencement of the delay. Once commenced, the construction shall be completed with all due diligence as soon as possible thereafter. 3. The City and the Association do hereby acknowl- edge receipt from York of the sum of Twenty Thousand and no /100 Dollars ($20,000.00) in full pal -men` and performance of all of York's obligations under the Parking Agreement to construct parking spaces on the Condominium Property. Association and City agree that said Twenty Thousand and no /100 Dollars ($20,000.00) shall be placed in an interest bearing account or deposit of a -4- kind and with a depository to be mutually agreed upon and to be withdrawn only upon the joint signatures of the Asso- ciation and City. When withdrawn, said sum, with all accrued interest, shall be used only for the construction of the Deferred Parking Spaces as required to be constructed by City pursuant hereto. If the City does not require the De- ferred Parking Spaces to be constructed pursuant to this Agreement or if said sum, with interest, exceeds the cost of such construction, then said sum, or the balance thereof, shall be paid over to the Association to be used by the Asso- ciation as it shall determine. 4. City and Association agree that the variance granted as to the Deferred Parking Spaces shall be reconsidered by the City, on its own motion or upon request of the Associa- tion, on or about June 1, 1981, at which time, upon reconsidera- tion, the City may extend the variance for an additional period, require some or all of the Deferred Parking Spaces to be constructed pursuant hereto, or determine that the Deferred Parking Spaces need not be constructed and release the Twenty Thousand and no /100 Dollars ($20,000.00), with accrued interest, to the Association. 5. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unenforce- able, 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 unenforce- able 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- N Y l 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 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: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Association: 7200 York Avenue South Edina, Minnesota Attention: Marilynn Everett Such addresses may be changed by either party upon notice to the other party given as herein provided. 7. In the event that Association fails or refuses to fully comply with all of its obligations under this Agree- ment, and such failure or refusal continues for a period of thirty (30) days after notice thereof is given to Association, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City may (i) revoke the said variance, in which case Association shall imme- diately construct all Deferred Parking Spaces required by the Condominium Plan, in full compliance with the Condominium Plan and all then applicable ordinances of the City, or (ii) enter upon the Condominium Property with such men, equipment and materials as the City deems necessary for the purpose of per- forming the obligations of Association hereunder that it has then failed or refused to perform, or, at City's discretion, of construction all of the Deferred Parking Spaces pursuant to the Condominium Plan, whether or not then required hereunder to be constructed, without liability or obligation of any kind to any owner or occupant of the Condominium Property for trespass or damage to the Condominium Property or improvements thereon am J� from which liability and obligation and all cost, damage and expense resulting therefrom, including attorneys' fees, the Association hereby agrees to indemnify City and hold City harmless, (iii) obtain enforcement, of this Agreement by court order for mandatory injunction or other appropriate relief, or (iv) 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 to be granted, issued, or given by the City, for the construction or occupancy of any or all of the improvements then or thereafter on the Condomimium Property, until such failure or refusal ends and the obliga- tions of Association are fully complied with. All of the fore- going 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 Association shall not pre- clude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Association agrees to pay to the City any and all costs and expenses in- curred by City,in enforcing this Agreement by use of the reme- dies above set out 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 at ten percent (10 %) per annum from the dates incurred by City until paid, and Association 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 ten percent (10 %) per annum on such costs of collection from the dates incurred until -7- i paid. Association further agrees, the provisions of para- graph 3 hereof to the contrary notwithstanding, that if Asso- ciation becomes indebted to City pursuant to this paragraph 7, City may draw on said sum of Twenty Thousand and no /100 Dollars ($20,000.00), and the interest thereon, to pay any and all such indebtedness to the City, without further consent or signature by Association, but Association shall remain liable - for any deficiency. Association agrees said Twenty Thousand and no /100 Dollars upon a written statement from City that from the Association under this Agreeme liability to Association for payment to statement. that the holder of ($20,000.00) may rely monies are due to City nt,, and shall have no City pursuant to such 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 Condominium Property and be binding upon all pre- sent and future owners of the Condominium Property. 9. The Parking Agreement is hereby amended and modi- fied to the extent inconsistent herewith, but as hereby amended and modified shall be and remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. YORK CO 0, INC. ' CI By V� By Its And An Its YORK, O ASSOCIATION? IN By Its ' And,:" its .v1thJI.N >i.�Y.� N1 tl ' T w k. STATE OF MINNESOTA SS COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this !1rfclay of �- � �_, 1980, by and respectively the and of YORK CONaQa.. 7 -tr: - - -- bT- nn sota corporat on, on behalf of said corporation =<• DIANE L JOHIW40y � rte, Norary ,n COMM k-44 W C fairs t JUNE 10,1&3 *►� Notary Public / STATE OF MINNESOTA SS COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this 13— day of , 1981, by and t _ U) o�� respectively the and a �,a of CIT OF EDINA, a Minnesota municipal cor- poration, on behalf of said municipal corporation. STATE OF MINNESOTA SS COUNTY OF HENNEPIN Notary Public .. f+`@• ^? i'do :�p a. M.e,•- �7�e- p.�'�•.3 ��ArLCm•a�.e+�aaq FLCREPvCE Q. HALLBERG „ESUTA rY ?y iornrn;ssioa x iris Da;,. 31, 2985 i��6.'•.a`L` r5`.`�'. Iev vtitbviiscf'4^s1J.i�+v\PIi� W'.Pa The foregoing instrumen was acknowledged before me this day of -/'� Lic�c.�- 198 by and —�( - resp ctively the and of YORK CONDO ASSOCIATION, INC., a Minne- sota non - profit corporation, on behalf of said non - profit corpo- ration. Notary -blic THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2300 First National Bank Building Minneapolis, Minnesota 55402 JOAN A. N,* �eAr. $ WARY PUBIC - ti', =TA §JENNEPIN COUNTY voccramiula Uptros Aug. 23, 1981 EXHIBIT A To Agreement (Conditions to Parking Variance) between YORK CONDO, INC., CITY OF EDINA, and YORK CONDO ASSOCIATION, INC. (Condominium Property) That part of Lot 2, Block 1, lying Easterly of the following described line, and its Northerly exten- sion: Commencing at the Northeast corner of said Lot 2; thence South 89 degrees 46 minutes 22 seconds West, assumed basis for bearings, along the north line th -2reof, 547.26 feet, to the point of begin- ning; thence South 00 degrees 05 minutes 10 seconds East, 352.02 feet to the South line of said Lot 2 and there terminating, Yorktown Second Addition, according to the plat thereof on file or of record in the office.of the. Registrar of Titles in and for said County.