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HomeMy WebLinkAbout2163AGREEMENT (Conditions to Parking Variance for One Corporate Center Phase 4) THIS AGREEMENT, made and entered into this day. of r' 1981, by and between RYAN PROPERTIES, INC., a Minnesota corporation ( "Owner ") and the CITY OF EDINA, a Minnesota municipal corporation ( "City "); WHEREAS, Owner is the fee owner of Lot 1, Block 1, One Corporate Center Phase 4, according to the recorded plat thereof, Hennepin County, Minnesota (the "Property "), all located in the City of Edina, County of Hennepin, State of Minnesota; and WHEREAS, the Property is presently undeveloped land; and WHEREAS, Owner proposes to construct upon the Property a six story office building with a gross floor area of approximately 117,000 S.F. and with parking on the Property to be used in connection with said building (all being hereinafter called the "Improvements "); and WHEREAS, Owner has submitted to the City a parking plan ( "Plan ") which Plan is on file with the City Planner of the City, is labeled "One Corporate Center Phase 4, Edina, Minnesota, Proof of Parking Plan ", was prepared by Owner, is dated March 18, 1981 and signed by the City, and which Plan provides for five hundred sixty (560) parking spaces upon the Property, and otherwise meets the requirements of the applicable City ordinances relative to parking of motor vehicles; and WHEREAS, Owner has requested a variance for parking; and WHEREAS, City did on April 16, 1981, in Case No. B -81 -11 (the "Variance Grant "), grant the requested variance for parking because the strict enforcement of the City ordinances would, in this case, cause undue hardship because of circumstances unique to the property, the grant of the variance will provide a substantial benefit in the design and landscaping of the Property, the variance will not be detrimental to the public welfare or other property in the vicinity, and the grant of such parking 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 parking 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 parking 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 the parking variance from its applicable ordinances whereby.there need not now be constructed on the Property six (6) parking spaces which are otherwise required by City ordinances, and whereby if the additional parking is hereafter constructed pursuant to the Plan, the removal of certain additional landscaping will occur as shown upon the Plan. -2- 2. That the parking variance granted by the City is conditioned upon the following requirements: A. That if the City Manager and the City Planner, in their sole discretion, 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 as the City Planner and City Manager shall then require, up to the maximum of parking spaces shown on the Plan. Without limitation upon said sole discretion of the City Manager and City Planner, one cause for requiring the Owner to construct such additional parking spaces may be the closing of circulation access between the Property and the lands platted as One Corporate Center Phase 3 lying westerly of the Property. 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 parking spaces as shown on the Plan have been constructed. 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 Plan and the then applicable City ordinances except as such ordinances have been varied by the -3- Variance Grant in regard to parking setbacks which shall be as indicated on the Plan; 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 approved by the City, such additional parking spaces may then be constructed pursuant to said new or revised parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may then be waived by variances, if any, then granted. B. The City Manager and the City Planner shall give written notice to Owner and to mortgagees of record holding a first lien on all or any part of the Property 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 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 the Plan or will submit a new or revised plan as above allowed. 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 -4- construct such additional parking spaces pursuant to the Plan. 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 the Plan. The ninety (90) day construction period above provided shall be subject to extension by reason of delays due to weather, labor disputes, material shortages or unava. lability 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 construction shall be completed with all due diligence as soon as possible -5- thereafter. The City shall be the sole judge of whether Owner is using due diligence is 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 all mortgagees of record holding a first lien on all or any part of the Property ( "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 agees to accept such performance by mortgagee as performance by Owner, provided that mortgagee complies with the following requirements: A. Mortgagee shall (i) either begin construction which Owner was to have undertaken pursuant hereto, or begin efforts to acquire possession of the Property by commencing a court action 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, commence construction by the earlier of the following dates: (1) the date which is sixty (60) days after the date when mortgagee acquires 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. -6- 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 in 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 requirements for mortgagee's undertaking in this Paragraph 3. 4. If Owner fails to commence any construction 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 pursuant to Subparagraph 2C for review and approval by the City, and if approved by the City, the construction may take place pursuant to such new or revised plan; provided, however, 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 hereof, and if mortgagee fails to comply with all of the requirements 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 parking variance described in this Agreement, in which case Owner shall immediately renovate or reconstruct all -7- parking spaces pursuant to the Plan and without variance (except those not revoked by City), in full compliance with the Plan and the then applicable ordinances of the City; B. Enter upon the Property with such men, equipment and materials as the City deems necessary for the purposes of performing the obligations of Owner hereunder which Owner and mortgagee have failed or refused to perform, or, at the City's discretion, of constructing all parking spaces in full compliance with the Plan and ordinances and without parking variance (except those not revoked by City), 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. Withhold and deny, any building permits, certificates of occupancy, utility connection permits and any other permits and approvals then or thereafter 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 hereunder of owner 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 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 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 at the highest rate then allowed by law, or, if no maximum rate is applicable, then at the rate of interest from time to time publicly announced by First National Bank of Minneapolis as its prime rate plus two percent (2%), 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 the highest rate then allowed by law, or, if no maximum rate is applicable, then at the rate of interest from time to time publicly announced by First National Bank of Minneapolis as its prime rate plus two percent (2 %), per annum on such costs of collection from the dates incurred until paid. -9- 6. 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 not enforceable 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. 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: Ryan Properties, Inc. One Corporate Center 7401 Metro Boulevard, Suite 500 Edina, Minnesota 55435 To first lien mortgagees of record: To their address shown of record, to their Minnesota 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. -10- 8. The parties hereby agree that in the event either party at any time or from time to time shall determine that through traffic traveling across the Property from Ohms Lane to Metro Boulevard shall constitute a traffic or safety hazard, then upon request by either party the City and the Owner shall in good faith and with due diligence seek mutual agreement upon a reasonable solution to such problem, including such possible solutions as the erection of signage prohibiting through traffic, relocating islands, adding or rearranging landscaping, realigning aisles, or building a fence or barrier along the access points in the common boundary between the east line of the Property and the west line of One Corporate Center Phase 3. 9. 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 but shall be binding upon the owners from time to time of the Property only during the period of their ownership. 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 oweners, 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. RYZuN P P RTIES, INC. By Its Vice President -11- CITY OF' EDINA By An STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this �-- day of , 1981 by James R. Ryan, the Vice President of RYAN PROPERTIES, INC., a Minnesota corporation, on behalf of the corporation. Notary Public JOUM WITN©ELT>'R STATE OF MINNESOTA) +rctAt�CwMMN/iOtA COUNTY OF HENNEP I N ) S S • My ` �'"'" ° "�' �+°^' +w� e The foregoin instrument was ac owledged efor � me this fda of d 1981 by 1ti1 �cJ� and f �% Mayor and Manager, respectively of the CITY F EDINA, a Minnesota municipal corporation, on behalf of the city. 1-1 This Instrument Was Drafted By: Dorsey, Windhorst, Hannaford, Whitney & Halladay W -880 First National Bank Building St. Paul, Minnesota 55101 -12- lic so,o1• CRAIG L. e'4w�14P a±3: NOTARY FU3j_!C ,`ate • My Covnr;!3siorn Expire's Sort. 15,193 ����� �s�tewa�rfew.ar, ca>maa>rcati ocr�:,aJ`' Zl(v3 r�. 7w VCF CD#JN'Y N-EC6RDU RN Ct?1ta171'.�li 4d CPRi►F1ED FliE^ „ND Gn 1981 NOV 10 MIf: 50 08366�- AS nocurrENT CO. RECORDER BY --- -- — DEputY i >t i► -r� �; a � Y 6 ]j► + ^ t sn i .. i } �a F� • No delinnuent 4.4 7 Joe, y1 4 t71.7y O! ray Wl' nc -;"d