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HomeMy WebLinkAbout2189r �s 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 .T ,a 1 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 -2- 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. =12 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 =0 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 , -5- 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 -7- 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 �i��"'S�{� �� � � NC7 • • �� __,_„ ►+� case+- +c�•+�'�' � •_ •l_rl 1 i 1 l,.t I ltu ,• _ =lz +.n 70121L srkL5 .N ' EXHIBIT C I Ind I ll it ii •I �•`- 1 w ' .' t �uu.a s s s II - - 519 p'c6lu -• t5. I •• I , �l 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 ti r f 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 �5G i