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HomeMy WebLinkAbout21304 J1:.11-1CS- _6 0 2 \s AGREEMENT THIS AGREEMENT, made and entered into this � day of November, 1979, by and between One Corporate Center III, Edina, a Minnesota limited partnership, ( "Partnership ") of which Ryan Properties, Inc., ( "Ryan ") is the sole general partner, and the CITY OF EDINA, a municipal corporation, ( "City"); WITNESSETH: WHEREAS, Partnership 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 WHEREAS, Partnership proposes to construct on said Property an approximately 116,928 square foot office building ( "Building ") and parking to be used in connection therewith; and WHEREAS, Partnership has submitted to City a parking plan prepared by Ryan dated September 20, 1979, ( "Plan "), which Plan provides for 560 parking stalls as required by City ordinances, a copy of which Plan is on file with the City and in the office of the Partnership and which Plan is incorporated herein be reference; and WHEREAS, Partnership is of the opinion that 560 parking stalls are not required for the operation of the Building and requested on September 20, 1979, of the Board of Appeals and Adjustments, a temporary parking variance allowing the construction pursuant to a parking plan dated September 20 , 1979, ('the "Variance Plan ") of 508 parking stalls rather than the required 560, a copy of which Variance Plan is on file with the City and in the office of Ryan and which Variance Plan is incorporated herein by reference; and 0 WHEREAS, the Board of Appeals and Adjustments granted on September 20, 1979, in Case No. B- 79 -29, the temporary 52 -stall parking variance as shown on the Variance Plan, conditioned upon the execution of an agreement between the parties hereto providing for the construction of up to 52 additional parking stalls upon the conditions and upon the terms hereinafter provided, which conditions the City deems necessary to impose to ensure compliance with applicable City ordinances and to protect adjacent properties. NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter contained, it is hereby agreed by and between the parties as follows: 1. The 52 -stall temporary parking variance granted by the Board of Appeals and Adjustments on September 20, 1979, is hereby conditioned upon the requirements that, upon the determination by the City Planner or City Manager that additional parking stalls are required on the Property, the Partnership will, at its sole cost and expense, construct such additional parking stalls up to a maximum of 52. The additional parking stalls shall be built in accordance with the Plan or, at the option of Partnership, pursuant to a new parking plan to be approved by the City, which parking plan shall comply with the then applicable ordinances of the City. 2. The City Manager or City Planner shall notify Partnership in writing, by registered or certified mail, in the event the City determines the parking on the Property to be inadequate and specifying in such notice the required number of additional parking stalls, up to a maximum of 52, which are required to be built. Partnership shall, within thirty (30) days after the receipt of such notice, indicate in writing to the City whether or not it will construct such additional parking stalls in accordance with the original Plan or will submit a new plan to the City for its approval covering such additional parking stalls and complying with the then applicable parking ordinances of the City. In the event Partnership elects to submit -2- J a new plan, a copy of such plan shall accompany the notification from Partnership to the City. If Partnership gives no such written indication to the City within said thirty (30) day period, it shall be deemed to have elected to construct such additional parking stalls pursuant to the original Plan. 3. Partnership shall construct such additional parking stalls in accordance with the original Plan within ninety (90) days after written notice from Partnership to City, or within one hundred twenty (120) days after receipt of the notice given by City as provided in Paragraph 2 if no written indication is given by Partnership within the thirty (30) day period specified in Paragraph 2, unless Partnership elects to proceed under a new parking plan, in which case such additional stalls shall be completed within ninety (90) days after the approval or rejection of the new parking plan by City. If the new plan is rejected by the City, the additional stalls shall be constructed pursuant to the original Plan. The construction period provided herein shall be extended by reason of delays due to weather, labor disputes, material shortages or unavailability, unavoidable casualties, acts of God, the public enemy or other eaosesr beyond the control of Part- nership. 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 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 completed with to the full extent permitted by law. -3- 5. In the event that Partnership 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 it, then, in that event, in addition to any other remedies then available to the City atlaw or in equity, the City may (i) revoke the said variance, in which case Partnership shall immediately construct all parking stalls required by the original Plan, in full compliance with the original 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 Partnership hereunder that it has then failed or refused to perform, or, at the City's discretion, of constructing all such additional parking stalls, up to a maximum of 52, as shown on and pursuant to the original 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 forirespass or damage to the Property or improvements thereon, (iii) obtain enforcement of this Agreement by court order for mandatory injunction or other appro- priate 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 on the Property, until such failure or refusal ends and the obligations of Partnership are fully complied with. All of the foregoing 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, 103 any remedy hereunder in the event of a failure or refusal by Partnership, shall not preclude the City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Partnership agrees to pay to the City any and all costs and expenses incurred by the City in enforcing this Agreement by use of the remedies above set out or by other remedy or means available to the City at law or in equity, including attorney's fees, whether suit be brought or not, and with interest on all such costs and expenses at eight percent (80) per annum from the dates incurred by the City until paid, and Partnership also agrees to pay all costs of collection of such costs and expenses, with interest thereon, again including attorney's fees, and whether suit be brought or not, with interest at eight percent (80) per annum on such costs of collection 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. 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 executed this Agreement the day and year first above written. ONE CORPORATE CENTER, III, Edina ated Partnership PROPERTIEe?— Partner ice President -5- CITY OF EDINA STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this f� day of 1979, by/e, Vice President of Ryan Properties, Inc., a general partner of ONE CORPORATE CENTER III, Edina, a Minnesota limited partnership, on behalf of said limited partnership. STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) Notary Public NOTARY PUC;iJC � Et'F4i COU'�.1Y � MY Commissio FxPisf'an. eC, n Xi The foregoing instrument was acknowledged before me this f f Kt�K, day of 9Qtn1 , 1979, by ( )U j(,,i 1 c and &11 /` respectively the Mayor and Ele� of the CITY OF EDINA, a municipal corporation, Al An�;A- j * tz_ on behalf of said corporation. t i dNS1°'FttJMENT WAS DRAFTED By y (name and address) J No-CIFy Pub a ' � .ac.:. �.. CRAIG L. !_ 17 - V NOTAR" (' —0TA � C c .�y •' �.:'r My -�e N{. 15, 1984 M CONSENT AND SUBORDINATION The undersigned, being the holder of a mortgage on the Property as described in the Agreement to which this Consent and Subordination is attached, which mortgage is dated e_4 -0foe t-- _, , 19 17?, -mn reeer4e4 as - eettftQnt- Ne. 3 17A the effiee Qf- the , 14eiineqla Gaianty, Minneseta, does hereby agree and consent to all of the terms and conditions of the Agreement to which this Consent and Subordination is attached, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, the Partnership, as defined in the Agreement, in the event it becomes the owner of the property. NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY By Its And Its STATE OF MINNESOTA ) ) SS. COUNTY of HENNEPIN ) The foregoing Consent and Subordination was acknowledged before me this 167-t'fV day of November , 1979, by B.M. Foster ^ and V.M. Keen on behalf of NORTHWESTERN NATIONAL LIFE INSURANCE COM ..+.. •. PATRICIA J. VAN OVERT CHCELDz 3�s ,' NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY `�1.. My Commission Expires Dec. 6, 1965 �. (J Notary Public =` -7- FXHTRTT "A" All that part of the east 23.36 acres of Government Lot 2, Section 9, Township 116, Range 21, and that part of Outlot A, Edina Interchange Center Third Addition, according to the recorded plat thereof, Hennepin County, Minnesota which lies south of a line drawn parallel with and 488.00 feet north of (as measured at right angles to) the south line of said Government Lot 2; and lying east of a line drawn parallel with and 27.64 feet east of (as measured at right angles to) the most easterly line of Block 1, Edina Interchange Center Third Addition: Except that part thereof which lies easterly of a line run parallel with and distant 35 feet westerly of the following described line: Commencing at a point on the east and west quarter line of Section 31, Township 28, Range 24, distant 3.68 feet east of the west quarter corner thereof, run northerly at an angle of 91 degrees 47 minutes 32 seconds from said east and west quarter line (measured from east to north) for 392 feet; thence deflect to the left at an angle of 90 degrees 00 minutes for 216.82 feet; thence deflect to the right at an angle of 89 degrees 40 minutes 03.5 seconds for 150 feet to the point of beginning of the line to be described; thence run southerly on the last described course for 348.09 feet; thence deflect to the right on a 2 degree 00 minutes curve (delta angle 2 degrees 45 minutes) for 137.5 feet; thence on tangent to said curve for 16.24 feet; thence deflect to the right on a curve having a radius of 300 feet (delta angle 58 degrees 01 minutes 03 seconds) for 303.79 feet and there terminating. r , F • '� Z 1 3 0 79 5 B? 6 S 003.5090 u OFFICE OF HENNEPIN 1979 MO's 30 AM t I x Ott ; r"UV;.. T ,. 4,52581.6 RECORLE.R ,f ., TY PEC FEE COPY FE 50 /ii \ AGREEMENT THIS AGREEMENT, made and entered into this tA day of November, 1979, by and between One Corporate Center III, Edina, a Minnesota limited partnership, ( "Partnership ") of which Ryan Properties, Inc., ("Ryan") is the sole general partner, and the CITY OF EDINA, a municipal corporation, ( "City "); WITNESSETH: WHEREAS, Partnership 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 WHEREAS, Partnership proposes to construct on said Property an approximately 116,928 square foot office building ( "Building ") and parking to be used in connection therewith; and WHEREAS, Partnership has submitted to City a parking plan prepared by Ryan dated September 20, 1979, ( "Plan "), which Plan provides for 560 parking stalls as required by City ordinances, a copy of which Plan is on file with the City and in the office of the Pattiership and which Plan is incorporated herein be reference; and WHEREAS, Partnership is of the opinion that 560 parking stalls are not required for the operation of the Building and requested on September 20, 1979, of the Board of Appeals and Adjustments, a temporary parking variance allowing �-e construction pursuant tc a parking plan dated September 20 , 1979, (the "Variance Plan ") of 508 parking stalls rather than the required 560, a copy of which Variance Plan is on file with the City and in the office of Ryan and which Variance Plan is incorporated herein by reference; and i WHERLAS, the Board of Appeals and Adjustments granted on September 20, 1979, in Case No. B- 79 -29, the temporary 52 -stall parking variance as shown on the Variance Plan, conditioned upon the execution of an agreement between the parties hereto providing for the construction of up to 52 additional parking stalls upon the conditions and upon the terms hereinafter provided, which conditions the City deems necessary to impose to ensure compliance with applicable City ordinances and to protect adjacent properties. NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter contained, it is hereby agreed by and between the parties as follows: 1. The 52 -stall temporary parking variance granted by the Board of Appeals and Adjustments on September 20, 1979, is hereby conditioned upon the requirements that, upon the determination by the City Planner or City Manager that additional parking stalls are required on the Property, the Partnership will, at its sole cost and expense, construct such additional parking stalls up to a maximum of 52. The additional parking stalls shall be built in accordance with the Plan or, at the option of Partnership, pursuant to a new parking plan to be approved by the City, which parking plan shall comply with the then applicable ordinances of the City. 2. The City Manager or City Planner shall notify Partnership in writing, by registered or certified mail, in the event the City determines the parking on the Property to be inadequate and specifying in such notice the required number of additional parking stalls, up to a maximum of 52, which are required to be built. Partnership shall, within thirty (30) days after the receipt of such notice, indicate in writing to the City whether or not it will construct such additional parking stalls in accordance with the original Plan or will submit a new plan to the City for its approval covering such additional parking stalls and complying with the then applicable parking ordinances of the City. In the event Partnership elects to submit -2- a new plan, a copy c= such plan shall accompany the notification from Partnership to the City. If Par= .ership gives no such written indication to the City within said thirty ( =�) day period, it shall be deemed to have elected to construct such additional parking stalls pursuant to the original Plan. 3. Partnership shall construct such additional parking stalls in accordance with t.: original Plan within ninety (90) days after written notice from Partnership to City, or within one hundred twenty (120) days after receipt of the notice given by City as provided in Paragraph 2 if no written indication is given by Partnership within the thirty (30) day period specified in =aragraph 2, unless Partnership elects to proceed under a new parking plan, in which case such additional stalls shall be completed within ninety (90) days after the approval or rejection of the new parking plan by City. If the new plan is rejected by the City, the additional stalls shall be constructed pursuant to the original Plan. The construction period provided herein shall be extended by reason of delays due to weather, labor disputes, material s}z)rtages or unavailability, unavoidable casualties, acts of God, the public enemy or other causes beyond the control of Part- nership. 4. If any .erm, condition, or provision of this Agreement, or the application there--f, 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 unenforceable shall not be affected thereby, an",' :his Agreement, and all the terms, provisions, and conditions hereof, s -:mil, in all other respects, continue to be effective and to be completed w- -th to the full extent permitted by law. -3- 5. In event that Partnership fails or refuses to fully comply with all c= _ =s obligations under this Agreement, and such failure or refusal continues for a period of thirty (30) days after notice thereof is given to it, then, in that event, in addition to any other remedies then available to the City atlaw or in equity, the City may (i) revoke the said variance, in which case Partnership shall immediately construct all parking stalls requiredbv the original Plan, in full compliance with the original Plan and all them 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 Partnership hereunder that it has then failed or refused to perform, or, at the City's discretion, of constructing all such additional parking stalls, up to a maximum of 52, as shcwn on and pursuant to the original 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 or improvements thereon, (iii) obtain enforcement of this Agreement by court order for mandatory injunction or other appro- priate 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 on the Property, until such failure o_ refusal ends and the obligations of Partnership are fully complied with. All of the foregoing remedies shall be usable and enforceable by the City separately cr concurrently as the City shall determine, and the use of one remedy sha_1 not waive or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, -4- any remedy hereunder in the event of a failure or refusal by Partnership, shall not preclude the City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Partnership agrees to pay to the City any and all costs and expenses incurred by the City in enforcing this Agreement by use of the remedies above set out or by other remedy or means available to the City at law or in equity, including attorney's fees, whether suit be brought or not, and with interest on all such costs and expenses at eight percent (80) per annum from the dates incurred by the City until paid, and Partnership also agrees to pay all costs of collection of such costs and expenses, with interest thereon, again including attorney's fees, and whether suit be brought or not, with interest at eight percent (8 %) per annum on such costs of collection 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. If there beat 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 executed this Agreement the day and year first above written. ONE CORPORATE CENTER, III, Edina a Li ' e Partnership b RYAN P PERTIES, INC. eneral artner By: ce President -5- STATE OF MINN SOTr ) ) SS. COUNTY OF HENI:EPI:, ) The foregoing instrument was acknowledged before me this 4 tK oV ' day of blX, 1972, by j Vice President of Ryan Properties, Inc., a general pa ---ner of ONE CORPORATE CENTER III, Edina, a Minnesota limited partnership, on behalf of said limited partnership. f N b r. 1��n.c y ruD11C XAAAAAAAAAMA,AA STATE OF MINNESOTA) JOLENE WiTHOELTER =y IsOTARY PUBLIC - MINNESOTA COUNTY OF HENNEPIN) SS. �. HENNEPIN COUNTY My ^ormnission Expires Jan. 20, 1981 }CYYYYYVYMVTVVI "YYV®IVIr Y VI'V�r vvvvm4 The foregoing instrument was acknowledged before me this �9 day of 1979, by and respectively the Mayor and Gleak of the CITY OF EDINA, a municipal corporation, A1A eP- on behalf of said corporation. THIS INSTRUMENT WAS DRAFTED BY (n me and address) tary CRAIG L. LARSEN NOTARY PuBUC -I 1,NNESOtA MY Co miss on Expires Sept 15, 193,4 CONSENT AND SUBORDINATION The undersgned, being the holder of a mortgage on the Property as described in the rgreement to which this Consent and Subordination is attached, which mortgage is dated Oc:i -obey 5 , 19 '77, and reeerded as DQLMUMex -Ne. 1 - }n the- effiee e9 the T. lian e ; n Gganty, ''; ;;;: `Ge_*_ , does hereby agree and consent to all of the terms and conditions of the Agreement to which this Consent and Subordination is attached, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, the Partnership, as defined in the Agreement, in the event it becomes the owner of the property. NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY By a P_"rl - Its L_ And Its STATE OF MINNFSOTA ) SS. COUNTY OF HENNEPIN ) The foregoing Consent and Subordination was acknowledged before me this /(o 7W day of November 1979, by B.M. Foster and V.M. Keen eespe ti +ely-s -e€ on behalf of NORTHWESTERN NATIONAL A LIFE INSURANCE COMPANY VAN OVERSCNFIO ;. PATRICtAJ. Lr_-M NE NOTARY PVBNotary Publi �� HENNEP.S ?. •, hqy Commisslnn -7- PPPP'-PP' EXHIBIT "A" All that part cf the east 23.36 acres of Government Lot 2, Section 9, Township 116, Range 21, and that part of Outlot A, Edina Interchange Center Third Addition, according to the recorded plat thereof, Hennepin County, Minnesota which lies south of a line drawn parallel with and 488.00 feet north of (as measured at right angles to) the south line of said Government Lot 2; and lying east of a line drawn parallel with and 27.64 feet east of X, s measured at right angles to) the most easterly line of Block 1, Edina Interchange Center Third Addition: Except that part thereof which lies easterly of a line run parallel with an;d distant 35 feet westerly of the following described line: Commencing at a point on the east and west quarter line of Section 31, To,,--iship 28, Range 24, distant 3.68 feet east of the west quarter corner thereof, run northerly at an angle of 91 degress 47 minutes 32 seconds from said east and west quarter line (measured from east to north) for 392 feet; thence deflect to the left at an angle of 90 degrees 00 minutes for 216.82 feet; thence deflect to the right at an angle of 89 degrees 40 rinutes 03.5 seconds for 150 feet to the point of beginning of the line to be described; thence run southerly on the last described course for 348.09 feet; thence deflect to the right on a 2 degree 00 minutes curve (delta angle 2 degrees 45 minutes) for 137.5 feet; thence on tangent to said curve for 16.24 feet; thence deflect to the right on a curve having a radius of 300 feet (delta angle 58 degrees 01 minutes 03 seconds) for 303.79 feet and there terminating. we f. 4525816 OFFICE OF c,U% -. ;,.. , C, , R HENNEPIN 5N, "Y' M;j.y - Tj 1979NOV30 4X11:00 ;'r f�,yrNr CO. RE COR[j. EPUTY Duplicate Filing Cortif ic&t* 25 Cents scP