HomeMy WebLinkAbout2234880 WEST -FIRST NATIONAL BANK BUILDING
ST. PAUL, MINNESOTA 55101
(6 Ili) 227- 8017
P. 0. BOX 848
340 FIRST NATIONAL BANK BUILDING
ROCHESTER, MINNESOTA 55903
(507) 288-3156
312 FIRST NATIONAL BANK BUILDING
WAYZATA, MINNESOTA 55391
(612) 475 -0373
DORSEY & WHITNEY
A Partnership Including Professional Corporations
2200 FIRST BANK PLACE EAST
MINNEAPOLIS, MINNESOTA 55402
(612) 340- 2600
TELEX! 29-0605
TELECOPIER c (612) 340-2868
THOMAS S. ERICKSON, P. A.
(512) 340 -2659
July 25, 1983
Mr. Harold Sand
City of Edina
4801 West 50th Street
Edina, Minnesota 55424
Dear Harold:
201 DAVIDSON BUILDING
8 THIRD STREET NORTH
GREAT FALLS, MONTANA 59401
(406)727 -3632
SUITE 675 NORTH
1800 M STREET N. W.
WASHINGTON, D. C. 20036
(202)296 -2780
30 RUE LA BOETIE
75008 PARIS, FRANCE
TEL= (1) 562 32 50
I am enclosing, for your records, one conpletely executed
copy of the St. Peter's Evangelical Lutheran Church Agreement, with
recording data thereon. This document was filed in the Office of
the Registrar of Titles, Hennepin County, Minnesota as Document No.
1520599 on June 23, 1983, and in the Office of the County Recorder,
Hennepin County, Minnesota as Document No. 4803394 on June 23, 1983.
By copy of this letter I am also sending Mr. Utter an executed copy
of the same document with recording data thereon.
Very truly yours,
TSE: jd (�
enclosure
cc: Mr. Daniel A. Utter
ZZ34-
AGREEMENT
(Conditions to Zoning Variance)
THIS AGREEMENT, dated as of the 22nd day of May, 1983, between
ST. PETER'S EVANGELICAL LUTHERAN CHURCH (also known as St. Peter's
Lutheran Church) ( "Church "), a Minnesota religious corporation, and the
CITY OF EDINA ( "City "), a Minnesota municipal corporation.
WHEREAS, the Church operates a church and church school on
certain real estate situated in the City of Edina, County of Hennepin,
State of Minnesota, legally described on Exhibit A attached hereto and
hereby made a part hereof (the "Property "); and
WHEREAS, the Church proposes to construct a new school and
additional parking lots (the "Improvements ") on the Property in
accordance with certain plans and apecificati_ ^a (the "Flans ") prepared
by The Architectural Offices, as Architect, dated March 25, 1983,
entitled Education /Church Facility, heretofore submitted by the Church to
the City, a copy of which Plans is on file with the City and which Plans
are incorporated herein by reference; and
WHEREAS, in order to undertake the Improvements; certain
variances in the City's ordinances are required; and
WHEREAS, the City did, on September 30, 1982, in Case
No. B -82 -10 grant certain variances (the "Variances ") because strict
enforcement of the City ordinances would, in this case, cause undue
hardship beep se of the {r^.' ---sty cces unique t Property, -A t
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grant of such variances has been determined by the City to be in keeping
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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 and agreements hereinafter set out in this Agreement,
which the City deems necessary to impose to insure compliance with the
applicable City ordinances and to protect adjacent properties; and
WHEREAS, the Church agrees to the granting of the variances
subject to the conditions and agreements 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 Variances, and of the mutual covenants and agreements hereinafter
contained, it is hereby agreed, by and between the City and the Church,
as follows:
1. The foregoing recitals are hereby made a part hereof.
2. The City hereby confirms that it did, as above stated,
grant the Variances; that one of the Variances is a temporary fifty -four
(54) space parking variance whereby there need now be constructed on the
Property only one hundred two (102) exposed parking spaces, subject,
however, to the following terms and conditions:
(a) If the City Manager and City Planner shall hereafter
determine that additional parking spaces are required on
the Property, the Church will, at its sole cost and
expense, construct such additional parking spaces as the
City Planner and City Manager shall then require, up to a
maximum of fifty -four (54) parking spaces, such additional
parking spaces to be located as shown on the parking plan
(the "Parking Plan ") attached hereto as Exhibit B and
hereby made a part hereof. The City Planner and City
Manager need not require that all of the additional harking
spaces be constructed at any one time, but may require
additional parking spaces to be constructed from time to
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3357C(12) :TSE:031483
time as they deem them necessary until a maximum number of
fifty -four (54) additional parking spaces have been
constructed in the locations shown on the Parking Plan.
If, at any time, less than all fifty -four (54) parking
spaces is required to be built pursuant hereto, Church
shall decide where to locate such spaces, but such location
shall be in conformance with the Parking Plan. The
additional parking spaces from time to time required by the
City Manager and the City Planner shall be built in full
compliance with the Parking Plan and the then applicable
City ordinances; provided, however, that Church, in
connection with any additional parking spaces then required
to be constructed, may prepare and present to the City a
new parking plan for review and approval by the City, and
if approved by the City (which approval may be withheld for
any reason or cause), the additional parking spaces then
required to be constructed may then be constructed pursuant
to said new parking plan, as approved, and subject to the
then applicable ordinances of the City, except as such
ordinances may be waived by variances, if any, then granted.
(b) The City Manager and the City Planner shall give written
notice to Church of their determination that additional
parking spaces are then required, setting forth in said
notice the number of spaces then required to be
constructed, up to the maximum number of fifty -four (54).
Church, within thirty (30) days after such notice is given,
shall (i) 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 plan as above
allowed, or (ii) appeal such determination to the Board of
Appeals and Adjustments of City (the "Board "), by filing a
written appeal pursuant to the then applicable zoning
ordinances of City. 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, or appeal filed
within said 30 -day period, Church shall be deemed to have
agreed to construct such additional spaces pursuant hereto
and to the Parking Plan. Church, however, agrees, anything
herein t the contrary notwithstanding, not to appeal any
such det rmination on the grounds that construction of the
addition l parking will require removal of any homes or
improveme is now or hereafter existing, or unusual or
extraordi ary grading and /or landscaping, it being
understood by Church that the Parking Plan provides for
removal o f two dwellings and a garage now existing on the
Property and requires unusual landscaping and grading.
(c) If Church appeals to the Board, as above provided, Church,
the City Manager or City Planner may appeal the decision of
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3357C(12): TSE: 031483
the Board to the City Council by filing a written appeal
pursuant to the then applicable zoning ordinances of City.
If no such appeal is filed, the decision of the Board shall
be final and conclusive on City and Church. If so appealed
to the City Council, the decision of the City Council shall
be final and conclusive on City and Church. Church agrees
that the determination of the City Manager and City Planner
shall be presumed to be correct and that Church Uhall have
the burden of proof to rebut such presumption.
(d) Church 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
(i) Church 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, or (ii)) Church appeals such
determination to the Board, in which case construction
shall commence within ninety (90) days after decision of
the Board (if the Board decision is that additio al spaces
must be constructed) or within ninety (90) days after
decision of the City Council if the Board decisio is
appealed, as above allowed, to City Council, and f the
City Council decides that additional spaces must e
constructed. The 90 -day period shall be extended for
delays due to weather, labor disputes, material shortages
or unavailability of material, unavoidable casualty, acts
of God, the public enemy, or other causes beyond the
reasonable control of Church, 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 construction shall be
completed with all due diligence as soon as possible
thereafter. The City shall be the sole judge of whether
Church is using due diligence in completing such
construction.
3. Church agrees that the Property is and shall be deemed a
single site for purposes of application of the provisions of the zoning
ordinances of City from time to time adopted by City. Church further
understands and agrees that because of the Improvements and existing
improvements on the Property, and because of the requirements of the
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3357C(12) :TSE:042783
zoning ordinances of City, as varied by the Variances, it is necessary
that the entire Property not be used for any purposes other than school
and church purposes, and be retained, owned, used and operated by one
owner as one contiguous tract and one economic unit; provided, however,
and it is understood and agreed by City and Church, that Parcels 2 and 4
on said Exhibit A are presently rented for residential uses, that
Parcel 5 on said Exhibit A is presently being used for school purposes,
and that any two of said three parcels may, from time to time, be rented
by Church for residential uses when not used by Church for school and
church purposes. Therefore, Church hereby agrees that it shall not use
the Property for any purpose or use of any kind other than school and
church uses, except, however, as otherwise provided in the immediately
preceding sentence, and shall not sell, convey, transfer, mortgage or
encumber, in any way or by any means, less than all of the Property, in
its entirety, at one time and to one person, without receiving irk each
instance the prior written consent of City, which consent may be withheld
for any reason or cause, and Church hereby expressly and unconditionally
waives any and all provisions of applicable law which would otherwise,
but for this waiver, allow Church to sell, convey, transfer, mortgage or
encumber portions of the Property to different persons or at different
times or without the prior written consent of City.
4. If any term, condition or provision of this Agreement, or
the application thereof to any person or circumstance, shall, to any
extent, be held to be invalid or unenforceable, the remainder hereof and
the application of such term, provision and condition to persons or
circumstances other than those as to whom it shall be held invalid or
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3357C(12):TSE:033083
unenforceable, shall not be affected thereby, and this Agreement, and all
the terms, provisions and conditions hereof, shall, in all other
respects, continue to be effective and to be complied with to the full
extent permitted by law. Provided, however, the foregoing to the
contrary notwithstanding, if, for any reason, any term, condition or
provision hereof should be determined by the legal counsel for City, or
by a court of competent jurisdiction, not to be fully binding upon and
fnIly enforceable against any owner of the Property, then, City, at its
option, may determine, by resolution of the City Council, that all of the
Variances shall wholly cease and terminate and, if such determination be
made, the Property shall then and thereafter be used and useable only in
full compliance with all applicable ordinances of the City.
5. In the event that Church fails or refuses to fully comply
with all of its obligations under this Agreement, or violates any of the
provisions hereof, and such failure, refusal or violation continues for a
period of thirty (30) days after notice thereof is given to Church, then,
in that event, in addition to any other remedies then available to the
City at law or in equity, the City shall have the right to:
(a) Enter upon the Property with such personnel, equipment and
materials as the City deems necessary for the purpose of
performing the obligations of Church hereunder that it has
failed or refused to perform, or, at the City's discretion,
for the purpose of constructing some or all of the parking
spaces shown on and pursuant to the Parking Plan, whether
or not then required hereunder to be constructed, without
liability or obligation of any kind to Church or any owner
or occupant of the Property for trespass or damage to the
Property, the Improvements or other property or
improvements thereon or for loss of business or business
interruption, or any other cause, all of which liability
and obligation is hereby waived by Church, and if any
person makes any claim against City for loss or damage to
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3357C(12):TSE:033083
property or business due to such entry, Church agrees to
hold City harmless from and indemnified against any loss,
cost, damage or expense, including reasonable attorneys'
fees, whether suit be brought or not, arising out of such
claim, and to pay to City, upon demand of City, any such
loss, cost, damage or expense, including reasonable
attorneys' fees, suffered or incurred by City, with
interest at ten (10 %) percent per annum from the dates
suffered or incurred by City until paid.
(b) Obtain enforcement of this Agreement by court order for
mandatory injunction or other appropriate relief.
(c) Withhold or deny any building permits, certificates of
occupancy, utility connection permits and any other permits
and approvals, then or thereafter to be issued or granted,
by the City for the construction or occupancy of all or any
part of the Improvements or other property or improvements
on the Property, until such failure or refusal ends and
Church fully complies with its obligations hereunder.
(d) Recover damages incurred by City as a result of such
failure, refusal or violation.
All of the rights and remedies available to City shall be usable and
enforceable by the City separately or concurrently as the City shall
determine, and the use of one right or remedy shall not waive or preclude
the use of any one or more of the other rights or remedies. Also, the
failure to exercise, or delay in exercising, any right or remedy
available to City in the event of a failure, refusal or violation by
Church, shall not preclude City from thereafter exercising any of its
rights or remedies for the same or a subsequent failure, refusal or
violation. Church agrees to pay to City any and all costs and expenses
incurred by City in enforcing this Agreement by the use of the rights and
remedies above set out or by other rights, remedies or means available to
the City at law or in equity, including reasonable attorneys' fees,
whether suit be brought or not, and with interest on all such costs and
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3357C(12):TSE:033083
expenses at the rate of ten (10 %) percent per annum from the dates
incurred by the City until paid.
Church also agrees to pay all costs of collection of any moneys
due to City from Church pursuant hereto, and of such costs and expenses
incurred in enforcing this Agreement, or any of City's rights hereunder,
with interest thereon, again including reasonable attorneys' fees, and
whether suit be brought or not, with interest at the rate of ten (10 %)
percent per annum from the dates such costs of collection were incurred
until paid.
6. All notices, reports or demands required or permitted to be
given under this Agreement, including the determinations referred to in
paragraph 2 hereof, shall be in writing and shall be deemed to be given
when personally delivered to any officer of the party to which notice is
being given, or when deposited in the United States mail in a sealed
envelope, with registered or certified mail, postage prepaid thereon,
addressed to the parties at the following addresses:
To City: 4801 West 50th Street
Edina, Minnesota 55424
Attention: City Manager
To Church: 5421 France Avenue South
Edina, Minnesota 55410
Such addresses may be changed by any party upon notice to the other party
given as herein provided.
7. The terms and provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, and shall run with the title to the Property and
3357C(12):TSE :033083
be binding upon all present and future owners of the Property. 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.
8. The conditions herein contained may be released or relaxed
in whole or in part, as to all or any part of the Property, and as to any
building or structure now or hereafter located thereon, by the sole act
of the City. Any such release or relaxation shall be effective only upon
the recording of a resolution of the City Council describing the
condition or conditions released or relaxed in the same office in which
this instrument has been recorded.
IN WITNESS WHEREOF, the parties hereto have causd this Agreement
to be executed the day and year first above written.
ST. PETER'S EVANGELICAL LUTHERAN CHURCH
By.
Its
And
i <<
Its
CITY OF EDINA
By
Its Mayor
And Z,;2
Its Manager
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STATE OF MINNESOTA )
SS
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 22nd day
of May, 1983, by Ileen S. Marose, and by Donald 0. Marose, the Secretary
and the Chairman of Trustees respectively, of St. Peter's Evangelical
Lutheran Church, (also known as St. Peter's Lutheran Church), a Minnesota
religious corporation, on behalf of said corporation.
STATE OF MINNESOTA )
SS
COUNTY OF HENNEPIN )
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Notary Public
X
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DANIEL A. UTTER
NOTARY PUBLIC — MINNESOTA
HENNEPHN COUNTY
My Commission Expires June 24,1988
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The foregoing instrument was acknowledged before me this 3rd day of
June, 1983 by C. Wayne Courtney and Kenneth Rosland °the Mayor and the
Manager, respectively, of the City of Edina, a. Minnesota municipal corporation,
on behalf of said corporation.
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'l•' NOTARY PUBLIC - MINNESOTA
COUNTY
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EXHIBIT A
( the "Property ")
Parcel 1 - 5421 France Avenue:
Lots 8, 9, 10, and 11, Block 3, and Lots 9 through 16 inclusive,
Block 4, Ivandale Park near Lake Harriet, Hennepin County,
Minnesota.
Parcel 2 - 3704 West Fuller Street:
Lots 12, 13, and 14, Block 3, Ivandale Park near Lake Harriet,
Hennepin County, Minnesota.
Parcel 3 - 5425 France Avenue South:
The West 240 feet of the West 480 feet of that part of the North
1/2 of the South 1/2 of the North 1/2 of the Northwest quarter
of the Northwest quarter lying East of the East line of France
Avenue, as now laid out and traveled, in Section 20, Township 28
North, Range 24 West of the Fourth Principal Meridian, Hennepin
County, Minnesota, all according to the Government survey
thereof.
Parcel 4 - 3721 West Fuller Street:
The East 60 feet of the West 300 feet of that part of the North
1/2 of the South 1/2 of the North 1/2 of the Northwest Quarter
of Northwest Quarter lying East of the East line of France
Avenue as now laid out and traveled in Section 20, Township 28
North, Range 24 West of the Fourth Principal Meridian, Hennepin
County, Minnesota, all according to the Government Survey
thereof.
Parcel 5 - 3717 West Fuller Street:
The East 60 feet of the West 393 feet of the North half of the
South half of the North half of the Northwest quarter of the
Northwest quarter in Section 20, Township 28 North, Range 24
West of the Fourth Principal Meridian, Hennepin County,
Minnesota.
k EXHIBIT B.'�
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OFFICE DF CTUNTY RECORaErA
HENNFPIN C0 1'+TY.MINN7SiTT'
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1983 JUN 23 All 8; 08
DFFiCE OF THE REGISTRAR
OF TITLES
HENNEPIN COUNTY. MINNESOTA
AS pOLl1 Mi N J
CERTIFIED FILED ON
f ". e..... Co. RECORDER
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REGISTRAR OF TITLEES'
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Certiricate
THIS DOCUMENT IS RECOR DETf
ON BOTH ABSTEd OT
fA ND TOEMNS PROPERTY,
RETURW TO
TORRENS DEPT".
RETURNTO .
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