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AGREEMENT
(CONDITIONS TO PARKING VARIANCE)
THIS AGREEMENT is made this 13n� day of ,
1987 by and between VERNON WOODS OF EDINA, au Minnesota
limited partnership ("Owner") and CITY OF EDINA, a Minnesota
municipal corporation ( "City").
RECITALS:
FIRST: Owner is the fee owner of certain real property
( "Property") located in the City of Edina, Hennepin
County, Minnesota, legally described on Exhibit A
attached.
SECOND: Owner desires to construct a 135 unit three story
apartment building ( "Building") on the Property
.under the terms and conditions of that certain
Developer's Agreement dated APL ,_, 1987
between Owner and City. The apartment building is
to be built with an underground garage and surface
parking for residents and guests.
THIRD: Under existing Edina Zoning Ordinance 825, a 135
unit multi - dwelling building must provide 169 under-
ground garage parking spaces and 101 surface park-
ing spaces for residents and guests, and have a lot
area of 2,182 square feet per apartment unit.
FOURTH: Due to the age composition and other characteris-
tics of the projected residents of the Building, a
surplus of surface parking spaces is anticipated.
Owner and City agree that the current best estimate
of this surplus is 33 parking spaces. As a result,
the construction plans for the Building specify an
underground garage with 169 parking spaces and 68
surface parking spaces. It is uncertain, however,
whether a shortage of parking at the Building will
develop in the future. Until additional parking is
actually needed, it is in the best interest of the
community to maintain green open space rather than
constructing additional parking.
FIFTH: The City on September 8, 1986, in cases no. Z -86 -2
and S -86 -4, did preliminarily approve re- zoning the
Property to the PRD -4 classification, conditioned,'
with respect to this contemplated parking variance,
upon execution, delivery and recording of this
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Agreement, and upon the conditions set out in this
Agreement, which City deems necessary to ensure
compliance with the applicable City ordinances and
to protect adjacent property.
SIXTH: Owner is agreeable to the granting of the parking
requirements variance subject to the terms and
conditions of this Agreement and is willing and
represents that Owner has the power and authority
to enter into this Agreement.
NOW, THEREFORE, in consideration of the granting by City
of the above - requested variance, and of the mutual covenants
of the parties, it is agreed:
1. City confirms that it did, as above - stated, grant a vari-
ance from its applicable ordinances, subject, however,
to the terms and conditions of this Agreement.
2. If the City Manager and the City Planner shall hereafter
determine, in their sole and absolute discretion, that
additional parking spaces are required on the Property,
Owner will, at Owner's sole cost and expense, construct
such additional parking spaces as the City Planner and
City Manager shall then require, up to a maximum of
thirty -three (33) additional spaces. The locations of
the additional spaces shall be as set forth on the site.
plan for the Property attached as Exhibit B. The City
Planner and 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 according to the schedule set forth on
Exhibit B attached from time to time as they deem them
necessary, again in their sole and absolute discretion,
until the maximum of thirty-three (33) additional park-
ing spaces have been constructed. The additional park-
ing spaces from time to time required by the City
Manager and the City Planner shall be built in full
compliance with the then applicable City ordinances.
(a) The City Manager and the City Planner shall give
written notice to Owner of their determination that
additional parking spaces are then required, set-
ting forth in said notice the scheduled number of
spaces then required to be constructed according to
Exhibit B, up to a maximum of thirty -three (33)
additional spaces.
(b) Owner shall commence construction of such addition-
al parking spaces as are then required by the City
Manager and the City Planner within sixty (60) days
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after said notice is given by the City Planner and
the City Manager. The 60 -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 Owner, in which case the 60 -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 City within ten (10) days
after the commencement of the delay. Once com-
menced, the construction shall be completed with
all due diligence as soon as possible thereafter.
City shall be the sole judge of whether Owner is
using due diligence in completing such
construction.
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
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, provi-
sions, 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. In the event that Owner fails or refuses to fully comply
with all Owner's 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 Owner, then,
in that event, in addition to any other remedies then
available to City at law or in equity, City shall have
the right to:
(a) Revoke the variance described in this Agreement, in
which case the Owner shall construct all parking
spaces required on Exhibit B in full compliance
with all the applicable ordinances of the City;
(b) Enter upon the Property with such personnel, equip-
ment, and materials as City deems necessary for the
purpose of constructing some or all of the
thirty -three (33) additional parking spaces in
accordance with the Exhibit B site plan without
liability or obligation of any kind to Owner or any
occupant of the Property for trespass or damage to
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the Property, or other property or improvements or
any other cause, all of which liability and obliga-
tion is hereby waived by Owner, and if any person
makes any claim against City for loss or damage due
to such entry, Owner agrees to hold City harmless
from and indemnified against any loss, cost, damage
or expense, including reasonable attorney's fees
whether suit be brought or not, arising out of such
claim, and to pay to City, upon demand of City, any
such loss, costs, damage or expense, including
reasonable attorney's fees, suffered or incurred by
City, with interest at eight percent (8 %) per annum
from the date demanded until paid;
(c) Obtain enforcement of this Agreement by court order
for mandatory injunction or other appropriate
relief, and
(d) Withhold, deny, or revoke any certificates of occu-
pancy, utility connection permits, and any other
permits and approvals, issued or granted by the
City for the occupancy or construction of all or
any part of the Building, until such failure or
refusal ends and Owner fully complies with its
obligations hereunder.
All of the foregoing remedies shall be usable and
enforceable by City separately or concurrently as 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 City any and all costs and expenses incurred
by City in enforcing this Agreement by the use of the
remedies above set out or by other remedies or means
available to City at law or in equity, including reason-
able attorney's fees whether suit be brought or not, and
with interest on all such costs and expenses at the rate
of eight percent (8 %) per annum from the dates incurred
by City until paid.
Owner also agrees to pay all costs of collection of any
monies due to City from Owner pursuant hereto, and of
such costs and expenses incurred in enforcing this Agree-
ment, with interest thereon, again including reasonable
attorneys' fees and whether suit be. brought or not, with
interest at the rate of eight percent (8%) per annum
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from the dates such costs of collection were incurred
until paid.
5. All notices or demands required or permitted to be given
under this Agreement 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, MN 55424
Attention: City Manager
To Owner: Norman P. Bjornnes, Jr.
Vernon Woods of Edina
401 Groveland Avenue
Minneapolis, MN 55403
Such addresses may be changed by any party upon notice
to the other party as herein provided.
6. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties 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. If, for any
reason, the provisions of this Agreement should be
determined by the legal counsel for City, or by a court
of competent jurisdiction, not to be fully binding upon
and fully enforceable against any owner of the Property,
then the variance granted by City in Cases No. ,Z -86 -2
and S -86 -4 shall wholly cease and terminate and the
Property shall be used and usable only in full compli-
ance with all then applicable ordinances of the City.
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
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instrument to be duly executed the day and year first
above- written.
OWNER: CITY:
VERNON WOODS OF EDINA CITY OF EDINA
,
By 6.V�- ,
No an P. BjoiWnes, Jr
General Partner
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
By
C. Wayne Cour 'ney
Its Mayor
Kenneth E.
Its Manager
The for egoi g i rument was acknowledged before me this
-- day of 2 , 1987 by Norman P. Bjornnes, Jr.,
General Partne Ve non Woods of Edina, a Minnesota limited
partnership, on behalf of the partnership.
MARY E. McDOWEM
-v.. NOTARY PVBLIC. 610MEAWA
`a /l HENNEPIN COUNTY
MY C X""%i"bn ExpNim Sam. ZS tEt7
v�sNVysrnr� otary bl C
Seal
STATE OF MINNESOTAi)
) ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this
day of ge-el 01 1987 by C. Wayne Courtney and
Kenneth E. Ros and, respectively, the Mayor and Manager of
6
n1p248
the CITY OF EDINA, a Minnesota municipal corporation, on
behalf of said municipal corporation. (City)
toy CRAIG L. LARSEN
NOTggy PUBLIC MINNESOTA /, HENNEPIN COUNTY K/ CO mm'3$1on ExP11es Aug 2t jW
No ry Pu
Seal YI
This instrument was drafted by:
Norman P. Bjornnes, Jr.
Mulligan & Bjornnes
401 Groveland Avenue
Minneapolis, MN 55403
7
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EXHIBIT A
TO AGREMM'14T
(Conditions to Parking Variance)
between
VERNON WOODS OF EDINA
and
CITY OF EDINA
Parcel 1:
That part of the following described part of Government Lot 7, Section 28,
Township 117, Range 21, lying West of a line running South parallel with the East
line of said Government Lot 7 from a point on the North line of said Government
Lot 7, distant 845 feet West of the Northeast corner thereof to the
Northwesterly right of way line of U.S. Biahway No. 1691 commencing at a point on
the North line of said Government Lot 7 distant 845 feet West of the Northeast
corner thereof; tbenoe South parallel to the East line of said Government Lot 7
a distance of lob feet to the point of beginning; tbenoe South parallel to said
East line 190 feet; tbence West parallel to the North line of said Government
Lot 7 to the West line thereof; tbenoe South to the Southwest ooroer of acid
Government Lot 7; tbenoe "at along the South line thereof to the Northwesterly
right -of -way line of U.S. Highway No. 169; thence Northeasterly along said
Northwesterly right- of-way line to its intersection with a line drawn East,
parallel to the North line of said Government Lot 7, from the point of begin-
ning; thence West to the point of beginning, according to the Government Survey
thereof.
Parcel 2:
That part of the North 1/2 of Government Lot 2, Section 33, Township 117 North,
Range 21 West of the Fifth Principal Meridian lying Northwesterly of the right -
of -ray of State Highway Kos. 169 and 212, all according to the United States
Survey thereof.
CONSENT
The undersigned, as the holder of that certain
Easement for private roadway purposes over and across the East
30 feet of the property described on Exhibit A to the foregoing
Agreement (Conditions to Parking Variance), which Easement is
dated June 27, 1967, filed August 9, 1967, in the office of the
Registrar of Titles, Hennepin County, Minnesota, as Document
No. 883520; which Easement was conveyed to the undersigned in
the Deed dated July 10, 1967, filed September 13, 1967, as
Document No. 887198, in the office of the Registrar of Titles,
Hennepin County, Minnesota;
That the undersigned hereby consents to the execution,
deliver and filing for registration of the foregoing Agreement
dated �l� 1987; by and between VERNON WOODS OF
EDINA, Minnesota limited partnership and CITY OF EDINA, a
Minnesota municipal corporation; and acknowledges that the
provisions of said Agreement shall'be prior and superior to the
undersigned's Easement.
Dated this day of 7�'k��ch 7�
Mark Z. Jones,,/II \
STATE OF MINNESOTA
ss.
COUNTY OF HENNEPIN
The foregoing . strument was acknowledged before me
this day of 1987, by Mark Z. Jones II.
&M. Alf A.^_ AAaru!
EEYE.._l' J
'j C, AL V D:J]LI( f..." E3pTA Nd a ry Public
14. !C92
� OYYYVYVY— ��o'ri �
This Instrument Was Drafted By:
Dorsey & Whitney
2200 First Bank Place East
Minneapolis, Minnesota 55402
CONSENT
The undersigned, as the holders of that certain
mortgage dated September 26, 1967, filed September 28, 1967, in
the office of the Registrar of Titles, Hennepin County,
Minnesota, as Document No. 888836; which mortgage is secured by
that certain Easement running in favor of Mark Z. Jones II
A
ated June 27, 1967, filed August 9, 1967 in the office of the
Registrar of Titles, Hennepin County, Minnesota, which Easement
was conveyed to Mark Z. Jones II by that certain deed dated
July 10, 1967, filed September 13, 1967, as Document No.
887198, in the office of the Registrar of Titles, Hennepin
County, Minnesota, and which Easement encumbers that certain
property described on Exhibit A to the foregoing Agreement
(Conditions to Parking Variance);
That the undersigned hereby consent to the execution,
delivery and filing for registration of the foregoing Agreement
dated +JA50 13 1987; by and between VERNON WOODS OF
EDINA, a Minnesota limited partnership and CITY OF EDINA, a
Minnesota municipal corporation; and acknowledge that the
provisions of said Agreement shall be prior and superior to the
lien of the undersigneds' mortgage on the above - described
property. Dated this -2,0+h day of , 1987.
By signing this consent, TCF in
no way assumes any financial
obligation for the construction
of the 33 parking spaces.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
TCF Banking and Savings, F.A., f.k.a.
TWIN CITY FEDERAL SAVINGS AND
LOAN ASSOCIATION
By Z-.
Its f ti Virv- k
The foreg ing instrument was know edge b10vo'cl
ore me
this d y o t- , 1987, by ov
the f Twin City Federal SavirYgs and Loan
Association; a federally chartered jjavings and loan
association, on behalf of said a ocia io� A
A
�,: '•�. �T�G'r f ,i S^ -Tip \
re. i Notary Publ
toa;
* n.k.a. TCF Banking and Savings, F.A.
MIDWEST FEDERAL SAVINGS
AND LOAN ASSOCIATION
By
Its
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me
this day of IF 1987, by
the of Midwest Federal Savings and Loan
Association, a on behalf of the
association.
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
Notary Public
FIRST MINNESOTA SAVINGS BANK,
f.k.a. First Federal Savings
& Loan Association
The foregoing instrument was acknowledged before me
this 13th day of April , 1987, by David V. Nelson__
the First Vice Presidemf First Minnesota Savings Bank,
known as First Federal Savings & Loan Association,
Corporation , on behalf of the Corporation
formerly
a United States of America
Notary ublic
This Instrument Was Drafted By:; t. JUDITH A. JAC08SON ■
Dorsey & Whitney
2200 First Bank Place East
Minneapolis, Minnesota 55402
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HE "JNEPIN COUNTY
MY Comm Expires Oct 20, 1992
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OFFICE OF THE REGISTP,AR
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HENNEPIN COUMT . Iv11'4%4FSGTA
CERTIFIED FILED ON
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REGISTRAR OF TITLES
BY_ DEPUTY
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