HomeMy WebLinkAbout2360AGREEMENT
(Special Assessment for Traffic Signal)
-Z3 4e
THIS AGREEMENT is made this day of
19_ff by and between FAIRVIEW HOSPITAL AN HEALTHCARE SERVICES, a
Minnesota non- profit corporation, ( "Owner ") and CITY OF ED NA, 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 hereto and hereby made a part hereof.
SECOND: City on June 15, 1987, in case no. P -86 -5 did approve a
Final Development Plan for the Property, including a
variance relative to parking setbacks, subject to a
number of conditions, one of which related to the
obtaining from Owner of an agreement to pay part of the
costs of constructing the Traffic Signal (defined
below).
THIRD: Owner is agreeable to the payment of a share of the
cost of constructing the Traffic Signal on the terms
and conditions herein set out.
NOW, THEREFORE, in consideration of the granting by
City of the Final Development Plan approval and parking setback
variance in the above - referenced case, and in consideration of
the mutual covenants and agreements of the parties herein, it is
hereby agreed as follows:
1. If City shall hereafter decide to construct or
install, or have constructed or installed, the Traffic Signal, it
shall be constructed and /or installed by City pursuant to then
applicable City standards, and then normal City procedures, and
may be assessed, in whole or in part, by City pursuant to then
applicable Minnesota Statutes and City procedures, and Owner
agrees that City may levy an assessment against the Property in
an amount equal to not more than 25% of the total cost of the
Traffic Signal. For purposes hereof, "Traffic Signal" shall mean
one fully activated traffic signal located at West 65th Street
and Drew Avenue South. A fully activated traffic signal shall
include, but not be limited to, poles, mast arms, signal heads
for all traffic movements and directions, cabinets, power
sources, loop detectors,
with all of the foregoing.
cost of the Traffic Signal
the cost of constructing
then normally charged by
services and other costs
connection with projects
including interest at the
and all electrical wiring associated
Also, for purposes hereof, the total
shall include, but not be limited to,
and /or installing the same, the cost
City for its own engineering staff
then normally included by City in
.or which assessments are levied, and
rate then charged by City on such
costs, including such engineering costs, from the date the costs
were incurred up to the date of the levy of the assessment.
2. If such an assessment is levied against the
Property, the Owner shall not object to such assessment or levy
in any way, or as to any particular, including, without
limitation, the amount of the assessment, the allocation of the
assessment among benefitted properties (it being agreed that the
Property shall be benefitted by the Traffic Signal, and it being
understood and agreed that some benefitted properties may not be
assessed at all for the Traffic Signal), or the hearing process,
and shall and hereby does, waive any and all objections to such
assessments and the levy thereof and the process to determine the
same, including, without limitation, waiver of any and all
notices and hearings required by then applicable statutes in
connection with the making of such Traffic Signal improvement or
the levying or such assessments.
3. 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
Attn: City Manager
To Owner: Fairview Hospital and Healthcare
Services,
6401 France Avenue South
Edina, MN 55435
Attn: Administrator
Such addresses may be changed by any party upon notice to the
other party as herein provided.
- 2 -
4. 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 all or any part of the Property.
5. The undersigned warrants and represents that Owner
has full power and authority to enter into this Agreement and
that the undersigned can act for and bind Owner to the provisions
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed the day and year first above
written.
OWNER:
FAIRVIEW HOSPITAL AND HEALTHCARE
SERVICES
its:
CITY:
CITY OF EDINA
By: >-
Fr erick S. Richar
Its May r
And:
Kenneth E. Rcjsland
Its Manager
- 3 -
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknoWledge bore me
this day of , l9c8q, by �u� t� , the
of 0 Fairview Hospi (f-al and Healthcare
Services, a Minnesota non - profit corporation, on behalf of the
corporation.
Notary Public
`.Patzicia oq Buzirxratrr
HENNEPIN COUNTy
STATE OF MINNESOTA) NpTmmisi nexpiB4Nfc249-
'" My commies +on expires 2 -19 -92
ss.
COUNTY OF HENNEPIN)
�.,t.�The fo eg ing i stru nt was acknowledged before me
this / �- day o 19,D by Frederick S. Richards and
Kenneth E. Rosland, the ayor a d Manager, respectively, of the
City of Edina, a Minne' to municipal corporation, on behalf of
said municipal corporation.
Notary Public
J. SKARE
�iG n� �OTA
h0
y
My cc....... , ,. -
This instrument was drafted by:
Dorsey & Whitney (JES )�L�zi-� !v ZNdQ ARK`S
2200 First Bank Place East �7Z
Minneapolis, MN 55402
==
r
EXHIBIT A
Legal Description
Lot 1, Block 1, Fairview Southdale Addition, according to
the plat thereof on file and of record in the office of the
Registrar of Titles, Hennepin County, Minnesota.
20142GG
'REGISTERED VOLea�&- PAGE��/
eZ —s 4v
COPY
OFFICE OF THE REGISTRAR
OF TITLES
HENNEPIN COUNTY, MINNESOTA
CERTIFIED FILED ON
MAY 2 21989
'4-� G-4, REGISTRAR
OF TITLES
L DEPUTY
Igoe S e—/ -t- w HH ru & `(
A-"-&)'. c- c N D k
j
"0000007 .Z 3 L o
!- DECLARATION OF EASEMENTS AND COVENANTS
u
0
THIS DECLARATION, Made and entered into this
day of 11
1.';;:.- °::. } , 1989, by and between FAIRVIEW HOSPITAL AND
HEALTHCARE SERVICES, a Minnesota nonprofit corporation (herein-
` after referred to as "Fairview "), and FAIRVIEW SOUTHDALE
PHYSICIANS BUILDING LIMITED PARTNERSHIP, a Minnesota limited
� partnership (hereinafter referred to as "Partnership ");
CNy
WITNESSETH, THAT:
WHEREAS, Fairview is the fee owner of the tract of
land (hereinafter referred to as the "Fairview Land ") and the
hospital building constructed thereon (hereinafter referred
to as the "Hospital ") which is located in the City of Edina,
County of Hennepin and State of Minnesota and is legally
described in Exhibit A attached hereto; and
WHEREAS, pursuant to a Ground Lease of even date
herewith (hereinafter referred to as the "Ground Lease "),
Fairview has leased to Partnership the tract of land (herein-
after referred to as the "Partnership Land "), adjoining the
Fairview Land, which is legally described in Exhibit B attached
hereto; and
WHEREAS, pursuant to the Ground Lease, Partnership
has agreed to construct a medical office building (hereinafter
referred to as the "Office Building ") on the Partnership Land,
a parking ramp structure (hereinafter, together,,w the
( AND F F at-';.' 7 N:1,E
A
existing parking ramp structure attached thereto and located
on the Fairview Land, referred to as the "Parking Ramp ") in
the Northeasterly portion of the Fairview Land, a tunnel
(hereinafter referred to as the "Tunnel ") located in part
beneath the surface of the Partnership Land and in part beneath
the surface of the Fairview Land and connecting the Office
Building and the Hospital, and various other site improvements
to the Fairview Land and the Partnership Land; and
WHEREAS, Fairview and Partnership desire to enter
into this Declaration for the purpose of granting to each other
various easements necessary for the construction, use and
operation of the Office Building, the Parking Ramp, the
Hospital and the Tunnel, and setting forth various agreements,
covenants and restrictions with respect thereto.
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, Fairview and Partnership do hereby
agree as follows:
1. Temporary Construction Easement. Fairview hereby
grants to Partnership an easement to use that portion of the
Fairview Land which is located within the area shown cross-
hatched on the site plan attached hereto as Exhibit C, together
with such additional portions of the Fairview Land as are
reasonably necessary for construction of the site improvements
to the Fairview Land, for the purpose of constructing the
improvements described in the plans and specifications which
- 2 -
{
are listed on Exhibit B to the Ground Lease (hereinafter
referred to as the "Plans "). Partnership shall use only so
much of said premises and for such periods of time as are
reasonably necessary for such purposes. This easement shall
terminate upon the completion of construction of such improve-
ments, but in no event later than September 30, 1990.
Partnership shall at its expense procure and maintain liability
insurance in the amount of at least $1,000,000 covering the
risk of death or injury to persons and damage to property
incident to such construction activities, which policy shall
name Fairview as an additional insured party. Partnership
further covenants and agrees to defend, indemnify and hold
Fairview harmless, and Fairview is hereby expressly relieved,
from any and all claims, liability, loss or damage arising by
reason of any death, injury, loss or damage to any person or
property in connection with such construction activities,
except as may result from the negligent or intentional acts
of Fairview or its agents.
2. Access. Fairview hereby grants to Partnership,
for the benefit of the Partnership and the future owners and
tenants of the Office Building and its and their agents,
employees and invitees, a perpetual, non - exclusive easement
to use the roadway which now exists and is to be widened by
the Partnership over and across those portions of the Fairview
Land which are shown crosshatched on the site plan attached
- 3 -
s
hereto as Exhibit D, for the purpose of ingress and egress of
vehicles between the Partnership Land and West 65th Street.
Upon completion of such widening, the Partnership shall cause
such easement areas to be surveyed and the parties shall
execute and record a supplement to this Declaration for the
purpose of setting forth the legal descriptions thereof.
Fairview shall have the right to from time to time relocate
such easement areas provided that such relocated easement areas
shall provide a reasonable means of vehicular access between
the Partnership Land and West 65th Street, and provided further
that Fairview shall at its expense relocate the roadway entire-
ly within such relocated easement areas. Partnership hereby
grants to Fairview, for the benefit of Fairview and the future
owners and tenants of the Hospital and their agents, employees
and invitees, a perpetual, non - exclusive easement to use the
roadways which are to be constructed over and across that
portion of the Partnership Land which is shown crosshatched
on the site plan attached hereto as Exhibit E, for the purpose
of ingress and egress of vehicles to and from the Parking Ramp
and between the segments of the roadway located on the premises
shown crosshatched on Exhibit D. Upon completion of such
roadways, the Partnership shall cause such easement area to
be surveyed and the parties shall execute and record a supple-
ment to this Declaration for the purpose of setting forth the
legal description thereof. Fairview shall keep and maintain
- 4 -
I j
all of the roadways referred to herein, including those located
on the Partnership Land, in good condition and state of repair
and reasonably clear of accumulations of ice and snow.
3. Tunnel. Notwithstanding anything to the contrary
contained in the Ground Lease, title to the Tunnel shall vest
in Fairview. Fairview shall at all times keep the Tunnel
insured against loss or damage by fire and extended coverage
risks for the full replacement cost thereof. In the event that
the Tunnel shall be damaged or destroyed, Fairview shall, at
its sole cost and expense and as expeditiously as is reasonably
possible, repair and restore the Tunnel to substantially the
same condition as existed prior to such damage or destruction,
and Partnership grants to Fairview an easement to enter upon
and utilize so much of the Partnership Land and for such period
as may be reasonably necessary for such purpose; provided,
however, that Fairview shall have no obligation to repair or
restore the Tunnel if the Hospital shall no longer exist.
Notwithstanding the preceding sentence, if the Tunnel is
damaged or destroyed by an occurrence which is not insured
under the standard form of all -risk casualty insurance policy,
the Partnership shall be responsible for 50% of the cost
incurred for repair and restoration thereof. Fairview grants
to Partnership, for the benefit of the Partnership and the
future owners and tenants of the Office Building and its and
their agents, employees and invitees, a non - exclusive easement
- 5 -
to use the Tunnel for the purpose of ingress and egress between
the Office Building and the Hospital, which easement shall
continue in effect for so long as the Hospital shall continue
to exist. Fairview shall have the right to reasonably regulate
use of the Tunnel, provided that use thereof between the hours
of 7:00 A.M. to 6:00 P.M., Monday through Friday, and 7:00 A.M.
to 1:00 P.M. on Saturday shall always be allowed. Partnership
shall, at its sole cost and expense, furnish all necessary
heat, ventilation, air conditioning and electricity to the
Tunnel. Fairview shall keep and maintain the Tunnel in good
and clean condition and state of repair, and Partnership shall
reimburse Fairview for 50% of all direct costs incurred by
Fairview for such maintenance, as reasonably determined by
Fairview. Such reimbursement shall be made within 10 days
after Fairview's submission to Partnership of statements
therefor. Fairview covenants and agrees to defend, indemnify
and hold Partnership harmless from any and all claims,
liability, loss or damage arising by reason of any death,
injury, loss or damage to any person or property within the
Tunnel, except as may result from the negligent or intentional
acts of the Partnership or its agents.
4. Access to Tunnel. Partnership grants to
Fairview, for the benefit of Fairview and the future owners
and tenants of the Hospital and their agents, employees and
invitees, a non - exclusive easement to use the walkways to be
- 6 -
C 1
constructed between the Parking Ramp and the Office Building
and to use the hallways, elevators and stairways located on
the basement and first floor levels of the Office Building
which are shown crosshatched on the floor plans attached hereto
as Exhibits F -1 and F -2, for the purpose of ingress and egress
between the Tunnel and the Parking Ramp, which easement shall
continue in effect for so long as the Hospital shall continue
to exist. Partnership shall have the right to reasonably
regulate the use of such hallways, elevators and stairways,
provided that use thereof between the hours of 7:00 A.M. to
6:00 P.M., Monday through Friday, and 7:00 A.M. to 1:00 P.M.
on Saturday shall always be allowed. Partnership shall, at
its sole cost and expense, operate, keep and maintain such
walkways, hallways, elevators and stairways in good and clean
condition and state of repair. Partnership covenants and
agrees to defend, indemnify and hold Fairview harmless from
any and all claims, liability, loss or damage arising by reason
of any death, injury, loss or damage to any person or property
occurring at such walkways, hallways, elevators and stairways,
except as may result from the negligent or intentional acts
of Fairview or its agents.
5. Utilities. Fairview grants to Partnership, for
the benefit of the Partnership Land, an easement for the
installation, use, maintenance and repair of the underground
utility lines and facilities shown and described in the Plans,
- 7 -
including the right to connect to Fairview's existing utility
lines, across and beneath the surface of those portions of the
Fairview Land which are shown shaded on the utilities plan
attached hereto as Exhibit G. Upon completion of installation
of-such utility lines and facilities, the Partnership shall
cause such easement areas to be surveyed and the parties shall
execute and record a supplement to this Declaration for the
purpose of setting forth the legal descriptions thereof.
Partnership shall, at its expense, promptly repair and restore
any damage to improvements or landscaping resulting from the
installation, use, maintenance or repair of such utility lines
and facilities. Partnership further covenants and agrees to
defend, indemnify and hold Fairview harmless, and Fairview is
expressly released, from any and all claims, liability, loss
or damage arising by reason of any death, injury, loss or
damage to any person or property in connection with such
utility lines and facilities.
6. Use of Office Building. (a) The Office Building
shall be used primarily for medical office purposes, but
portions thereof may also be used for medically- related
commercial purposes and services ancillary thereto, including
but not limited to a pharmacy and optical store. For a period
of 30 years from and after the date hereof, no space in the
Office Building shall be leased or used for any of the
following purposes ( "Prohibited Uses "):
2
(i) abortion clinic;
(ii) surgicenter or surgical clinic or center; or
(iii) primarily for laboratory, radiology,
diagnostic or other services which are at any
time and from time to time offered in
Minneapolis -St. Paul metropolitan area
hospitals providing hospital services similar
to those provided at the Hospital; provided,
however, that in no event shall this
subparagraph (iii) be construed to restrict
the use and /or leasing of space in the Office
Building to physicians and /or surgeons for
purposes of general medical office space.
In the event that the Partnership in good faith proposes to
lease space in the Office Building to a bonafide tenant for
any use other than a Prohibited Use, then within 10 days
following the receipt by Fairview from the Partnership of said
proposed lease, time being of the essence, Fairview shall
either (i) approve said lease, or (ii) notify the Partnership
of its election to lease such space upon the same terms and
conditions as contained in the proposed lease, except as
otherwise provided herein, whereupon Fairview and the Partner-
ship shall promptly enter into such lease. If Fairview fails
to so notify the Partnership within such 10 -day period, then
it shall be deemed to have approved the proposed lease. If
Fairview exercises its right to lease such space as provided
in clause (ii) above, no further space elsewhere in the Office
Building shall be proposed for leasing to said proposed
tenant. If Fairview approves or is deemed to have approved
a proposed lease, then the Partnership shall be free to lease
such space to the proposed tenant notwithstanding the use
authorized by the lease provided it is not a Prohibited Use.
Notwithstanding anything to the contrary contained in the
proposed lease, if Fairview exercises its right to lease space
in the Office Building as provided in clause (ii) above, the
lease shall provide that the lessor may not unreasonably with-
hold or delay its consent to any assignment of the lease or
subletting of all or any part of the space, but that Fairview
shall in no event be released from liability under the lease.
(b) Fairview shall defend, indemnify and hold the
Partnership harmless from any loss, liability and expense
(including reasonable attorneys' fees) arising out of any claim
of restraint of trade or any other claim of unlawful restric-
tion asserted by any party by reason of subparagraph (a)
hereof, provided that the Partnership shall give reasonable
notice to Fairview of any such asserted claims, permit Fairview
to select counsel to defend the same, and authorize Fairview
to determine all defenses, legal procedures, strategy and other
aspects of all litigation pertaining to such asserted claim.
(c) If the Partnership shall enter into, or propose
to enter into, any lease of space in the Office Building in
- 10 -
violation of the restrictions and covenants contained in
subparagraph (a) hereof, then Fairview shall have any one or
more of the following remedies: (i) a claim for damages;
(ii) a claim for injunctive relief; and (iii) any other remedy
provided at law or in equity.
7. Parking Ramp and Facilities. Fairview hereby
grants to Partnership, for the benefit of the Partnership and
the future owners and tenants of the Office Building and its
and their agents, employees and invitees, a perpetual,
non - exclusive easement to use the Parking Ramp for automobile
parking purposes in accordance with the provisions. hereof.
Fairview shall at all times keep the Parking Ramp insured
against loss or damage by fire and extended coverage risks for
the full replacement cost thereof. In the event that the
Parking Ramp shall be damaged or destroyed, Fairview shall,
at its sole cost and expense and as expeditiously as is reason-
ably possible, repair and restore the Parking Ramp to
substantially the same condition as existed prior to such
damage or destruction. Fairview may at any time, at its sole
cost and expense, enlarge or otherwise alter the Parking Ramp
provided that such alterations do not reduce the number of
parking spaces therein and are consistent with the archi-
tectural design of the Parking Ramp.
For purposes hereof, the following terms shall have
the following meanings:
- 11 -
"Total Parking Facilities" shall mean the Parking
Ramp (including any future expansions thereof) and all
surface parking lots now or hereafter located on the
Fairview Land (except the two parking areas, containing
a total of approximately 20 parking spaces, located
adjacent to the Hospital receiving dock and the power
plant located on the Fairview Land), including all equip-
ment and lighting used in the operation thereof, together
with all roadways now or hereafter located on the Fairview
Land and /or the Partnership Land. Fairview may at any
time remove, add to or otherwise alter the surface parking
lots located on the Fairview Land, provided that at least
the minimum number of parking spaces required by the City
of Edina for all buildings located on the Fairview Land
and the Partnership Land shall at all times be provided
thereon.
"Parking Facilities Expenses" shall mean all costs
and expenses incurred by Fairview in connection with the
operation and maintenance of the Total Parking Facilities,
including but not limited to the following:
(i) All real estate taxes and special assessments
payable with respect to the Parking Ramp.
(ii) The cost of all maintenance (including snow
removal) and repairs.
(iii) Wages, salaries and benefits paid to all
employees engaged in the operation or
- 12 -
management of the Total Parking Facilities.
Such wages, salaries and benefits paid to
employees who are not exclusively so engaged
shall be prorated based upon relative time
devoted thereto.
(iv) Utility costs.
(v) The cost of all supplies and materials used
in the operation of the Total Parking
Facilities.
(vi) The premiums for all casualty and liability
insurance maintained with respect to the
Parking Ramp.
(vii) Management fees paid to parties not affili-
ated with Fairview.
(viii) All taxes, excises and other charges of any
kind which may be imposed by any governmental
authority on revenues generated from the
operation of the Total Parking Facilities.
The cost of all capital improvements to and replacements
of the Total Parking Facilities (including resurfacing
of paved areas) shall not be included in Parking
Facilities Expenses, and all necessary capital improve-
ments and replacements shall be made by Fairview at its
sole cost and expense. If the Partnership and Fairview
disagree as to the need for any capital improvement or
- 13 -
replacement, then the matter shall be resolved by
arbitration in accordance with subparagraph 8(b) hereof.
If Fairview fails to commence any such capital improvement
or replacement so determined to be necessary within
30 days after the issuance of the arbitrators' decision,
or to diligently pursue such work to completion, then the
Partnership may make or complete such capital improvement
or replacement and Fairview shall pay to the Partnership
upon demand all costs incurred by the Partnership in
connection therewith.
"Partnership's Proportionate Share" shall mean the
ratio of 420 divided by the total number of parking spaces
from time to time provided by the Total Parking Facili-
ties, which shall be determined annually as of
January lst.
Fairview shall keep and maintain the Total Parking
Facilities in good, clean and operable condition and state of
repair. The Total Parking Facilities shall be operated so as
to provide paid parking, on an unreserved, hourly /daily fee
basis, for the agents, employees and invitees of Fairview and
for the tenants of the Office Building and their agents,
employees and invitees; provided, however, that (a) subject
to the following provisions, Fairview shall have the right to
lease parking spaces in the Total Parking Facilities to
individuals designated by it on an unreserved, monthly basis,
and (b) Fairview shall lease to individuals designated by
- 14 -
Partnership from time to time, on an unreserved, monthly basis,
up to 200 parking spaces in the Parking Ramp; provided further,
however, that at all times at least 240 parking spaces in the
Parking Ramp shall be available for parking on an hourly /daily
fee basis. Uniform rates shall be charged for monthly parking
in the Parking Ramp, but a lower rate may be charged for
monthly parking elsewhere in the Total Parking Facilities.
Such parking fees and monthly parking rates shall be determined
from time to time by Fairview, after consultation with the
Partnership, but shall be set so as to attempt to generate
total revenues from the operation of the Total Parking
Facilities ( "Parking Revenues ") sufficient (but not substan-
tially in excess of that necessary) to pay on a monthly basis
all Parking Facilities Expenses, plus (i) the amount provided
in subparagraph (b) hereof, (ii) $3,250 and (iii) 1% of the
Ramp Addition Cost (as such term is hereinafter defined). If
the Parking Revenues for any three consecutive months are
insufficient to pay such total monthly amount, then the parking
fees and rates shall be increased accordingly.
Fairview shall keep and maintain (for at least
4 years) complete and accurate books and records of all Parking
Revenues and Parking Facilities Expenses, which books and
records shall be open to inspection by Partnership at all
reasonable times. From and after the first day of the month
following substantial completion of the addition to the Parking
Ramp to be constructed by the Partnership (excluding the
-'15 -
pouring of the concrete floor on the ground level thereof) and
the installation by the Partnership of all necessary Total
Parking Facilities equipment, and thereafter until December 31,
2019, all Parking Revenues arising during each month of such
term shall be paid and applied as follows and in the following
order of priority:
(a) First to Fairview in payment of all Parking
Facilities Expenses incurred by Fairview. The
monthly amount retained by Fairview hereunder
shall be equal to 1 /12th of the total Parking
Facilities Expenses for the current year, as
reasonably estimated by Fairivew; and at the
end of each year the actual Parking Facilities
Expenses for such year shall be determined and
any underpayment or overpayment shall be applied
to the amount retained by Fairview hereunder
for the first month of the following year.
However, if at any time there are insufficient
Parking Revenues to pay current Parking
Facilities Expenses, Fairview may notify
Partnership of such deficit and Partnership
shall pay to Fairview the Partnership's Pro-
portionate Share of such deficit within 10 days
after such notice from Fairview.
- 16 -
e
(b) Second to Fairview in an amount equal to
1 /378ths of the Ramp Addition Cost.
(c) Third to the Partnership in an amount equal to
the lesser of (i) 59 /10,000ths of the Ramp
Addition Cost, or (ii) $16,800.
(d) Fourth to the Partnership to the extent of
(i) any sums paid by the Partnership to Fairview
pursuant to the third sentence of subpara-
graph (a) hereof, together with interest thereon
at the rate of 10% per annum, and (ii) any
difference between the amount payable and the
amount actually paid to the Partnership pursuant
to subparagraph (c) hereof for each previous
month, together with interest thereon at the
rate of 10% per annum.
(e) All remaining Parking Revenues for each month
shall be the property of Fairview.
For purposes hereof, the term "Ramp Addition Cost" shall mean
the Total Cost of the addition to the Parking Ramp, as
determined in accordance with paragraph (a) of Section 5.02
of the Ground Lease, but not more than $2,864,000. When the
Ramp Addition Cost has been determined, the parties shall
execute and record a supplement to this Declaration for the
purpose of specifying the amounts provided in subparagraphs
(b) and (c) hereof.
- 17 -
! 1
The sums payable to the Partnership pursuant to
subparagraphs (c) and (d) hereof shall, if there are sufficient
Parking Revenues to pay the same, be paid within 30 days after
the end of each month, and at such times Fairview shall furnish
to Partnership a written accounting of all Parking Revenues
and Parking Facilities Expenses during such month. The
Partnership may assign its rights to receive such payments and
upon being furnished with any such written assignment, Fairview
shall thereafter pay the same to the assignee therein named,
its successors and assigns, unless and until it shall be
notified otherwise in writing by such assignee. Partnership
agrees that, to the extent such payments are paid to the
assignee, Fairview shall have no further liability to the
Partnership therefor.
Any mortgagee of the Partnership Land or of the
lessee's interest therein under the Ground Lease who acquires
title thereto by foreclosure of such mortgage or conveyance
in lieu thereof may at any time by written notice to Fairview
elect not to be entitled to receive the sums thereafter payable
to the Partnership pursuant to subparagraphs (c) and (d)
hereof, in which event it shall have no further obligation to
contribute to any deficit between Parking Revenues and Parking
Facilities Expenses as provided in subparagraph (a) hereof.
Any such election shall remain in effect for so long as such
mortgagee is the owner of the Partnership Land or of the
lessee's interest therein under the Ground Lease.
- 18 -
e
From and after January 1, 2020, all Parking Revenues
shall be the exclusive property of Fairview and Fairview shall
have sole authority to establish parking fees and rates
(including the right to dispense therewith), and the Partner-
ship shall have no further obligation to contribute to any
deficit between Parking Revenues and Parking Facilities
Expenses.
8. Miscellaneous.
(a) Any sums payable by either party pursuant to
this Declaration which are not paid when due shall bear
interest from the date due until paid at the rate of twelve
percent (12 %) per annum, or such lesser rate as may be the
maximum allowed by law, and the defaulting party shall also
be liable for all costs of collection thereof, including
reasonable attorneys' fees.
(b) Any dispute which may arise concerning this
Declaration shall be resolved by arbitration in accordance with
the Minnesota Uniform Arbitration Act, Minnesota Statutes
Chapter 572, as the same may hereafter be amended or pursuant
to any replacement statute hereafter adopted. The issue shall
be determined by a board of three (3) reputable and disinter-
ested arbitrators, each of whom shall be a person experienced
in the ownership and operation of commercial real estate and
shall have no disqualifying interest. one arbitrator shall
be appointed by each party and a third arbitrator shall be
- 19 -
appointed by the first two. If the first two arbitrators are
unable to agree on a third within thirty (30) days after the
appointment of the second arbitrator, or if either party fails
to appoint an arbitrator as herein provided, then such
arbitrator shall be appointed by a judge of the highest state
trial court then sitting in Hennepin County, Minnesota.
(c) All notices, demands or other writings in this
Declaration provided to be given or made shall be deemed to
have been fully given or made when deposited in the United
States mail, certified or registered mail, postage prepaid,
and addressed as follows:
To Fairview: Fairview Hospital and Healthcare
Services
2312 South Sixth Street
Minneapolis, Minnesota 55454
Attention: Director of Property
Management
To Partnership: Fairview Southdale Physicians
Building Limited Partnership
c/o BTO Development Corporation
1000 Shelard Parkway
Suite 500
Minneapolis, Minnesota 55426
or to such other address as either party may notify the other
party of by not less than 10 days' prior written notice.
(d) This Declaration shall run with fee title to
the Fairview Land and with title to the leasehold estate in
the Partnership Land created by the Ground Lease or any new
ground lease entered into pursuant to Section 17.02 of the
Ground Lease (and, in the event of termination of the Ground
- 20 -
Lease or any such new ground lease, with fee title to the
Partnership Land), and shall be binding upon and inure to the
benefit of Fairview and Partnership and their respective
successors in interest thereto. However, a party shall only
be liable hereunder for the obligations which arise hereunder
during the period of its ownership of such real estate.
(e) This Declaration may not be modified or amended
without the written approval of the holder of each recorded
mortgage now or hereafter covering all or any part of or
interest in the Partnership Land or the Fairview Land.
(f) The access easement granted to Partnership
pursuant to paragraph 2 hereof shall neither be terminated or
narrowed to less than 30 feet at any point nor shall the use
thereof by Partnership and the future owners and tenants of
the Office Building and its and their agents, employees and
invitees be restricted, without the prior written consent of
the City of Edina. The parking easement granted to Partnership
pursuant to paragraph 7 hereof shall neither be terminated nor
shall either the number of parking spaces in the Parking Ramp
to be available for monthly leasing to individuals designated
by Partnership (i.e. 200) or the minimum number of parking
spaces in the Parking Ramp to be available for parking on an
hourly /daily fee basis (i.e. 240) be reduced, without the prior
written consent of the City of Edina.
- 21 -
IN WITNESS WHEREOF, Fairview and Partnership have
caused this Declaration to be duly executed as of the date
first above written.
FAIRVIEW HOSPITAL AND HEALTHCARE
SERVICES
By:
And: 72-?
It sT 1
FAIRVIEW SOUTHDALE PHYSICIANS
BUILDING LIMITED PARTNERSHIP
By: BTO Development Corporation,
Its General Partner
By:
its:
And:
Its:
STATE OF MINNESOTA }
ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me
this Z ?*, day of FE&4,hz j , 1989, by
and ..]'R,-in P, Fu< , the UiLz- ��, =s,� ,- and
jKc7�s�� respectively, of FAIRVIEW HOSPITAL
AND HEALTHCARE SERVICES, a Minnesota nonprofit corporation,
on behalf of the corporation.
1
Notary Public-
:,-...,.,.., ,
- 22 -
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The fo oing instrument was acknowledged before me
this day of �,q , 1989, b���lfi��� }{,�►1�G�
--eTfd , the a
, respectively, of BTO Development
Corporation, a Minnesota corporation, the General Partner of
FAIRVIEW SOUTHDALE PHYSICIANS BUILDING LIMITED PARTNERSHIP,
a Minnesota limited partnership, on behalf of said corporation
and said limited partnership.
LORI J.
1� NOTAftPUN C tary Pub is
RAMSEY COUNTY
t. :7 CJmmiss On Expires Apr. 136 ISM
Pop
This Instrument Was Drafted By:
DORSEY & WHITNEY (DB)
2200 First Bank Place East
Minneapolis, Minnesota 55402
- 23 -
Exhibit A
Fairview Land
Parcel 1: The North 1,328.73 feet of Lot 2, "Cassin's Outlots ",
according to the plat thereof on file or of record in the office
of the County Recorder in and for Hennepin County, Minnesota,
except that part thereof platted as Evans Addition, and also
except that part thereof which lies westerly of the following
described Line "X" and southerly of the southerly line of the
highway easement described in Registrar of Titles Document
Numbers 576247, 576767 and 1972506, and also except that part
thereof which lies easterly of said Line "X", southerly of the
southerly.line of said highway easement and northwesterly of a
90.00 foot radius curve concave to the southeast and tangent to
both said southerly line of said highway easement and said
Line "X ".
Line "X" is a line drawn parallel with and distant 48.00 feet
easterly of the following described line:
Also except that part thereof described as follows:
Commencing at a point on the West line of Section 29, Township 28
North, Range 24 West, distant 1,107.10 feet North of the West
Quarter corner thereof (the West line of said Section 29 is
assumed to bear North 0 000'30" West); thence run easterly at an
angle of 74 024100" (as measured from North to East) for a
distance of 124.10 feet; thence deflect left along a tangential
curve having a radius of 1,527.89 feet (delta angle 18 02615511)
for a distance of 491.96 feet; thence South 34 003'25" East along
a radial line away from the center of said curve a distance of
50.00 feet to the point of intersection with the following
described Line "A" and the point of beginning; thence South
Commencing at the southwest corner of the Northwest Quarter
of Section 29, Township 28, Range 24; thence run northerly
along the west line of said Northwest Quarter for a distance
of 630.6 feet; thence deflect right at an angle of
90 degrees for a distance of 10 feet to the actual point
of beginning of the line being described; thence deflect
left at an angle of 90 degrees for a distance of 100 feet;
thence deflect right along a tangential curve having a
radius of 5,729.58 feet (delta angle 1 degree 09 minutes
00 seconds) for a distance of 115.0 feet; thence tangent
to said curve for a distance of 84.30 feet; thence deflect
left along a tangential curve having a radius of 5,729.58
U
feet (delta angle 1 degree 09 minutes 00 seconds) for a
�.
distance of 115.0 feet; thence tangent to said curve for
a distance of 100 feet and there terminating.
Also except that part thereof described as follows:
Commencing at a point on the West line of Section 29, Township 28
North, Range 24 West, distant 1,107.10 feet North of the West
Quarter corner thereof (the West line of said Section 29 is
assumed to bear North 0 000'30" West); thence run easterly at an
angle of 74 024100" (as measured from North to East) for a
distance of 124.10 feet; thence deflect left along a tangential
curve having a radius of 1,527.89 feet (delta angle 18 02615511)
for a distance of 491.96 feet; thence South 34 003'25" East along
a radial line away from the center of said curve a distance of
50.00 feet to the point of intersection with the following
described Line "A" and the point of beginning; thence South
Y
N
G
0 001'10" West a distance of 188.77 feet; thence South 58 1109'16"
East a distance of 144.69 feet; thence North 30 040'40" East a
distance of 62.39 feet; thence North 0 001'10" East a distance
of 335.85 feet to a point of intersection with said Line "A ";
thence southwesterly along said Line "A" to the point of
beginning.
Line "A" is a line drawn parallel with and distant 50 feet
Southeasterly of the following described line:
Beginning at a point on the West line of Section 29,
Township 28 North, Range 24 West, distant 1,107.10 feet
North of the West Quarter corner thereof; thence run
easterly at an angle of 74 024' (as measured from North to
East) for a distance of 124.1 feet; thence deflect left
along a tangential curve having a radius of 1,527.89 feet
(delta angle 19 0231) for a distance of 516.9 feet; thence
tangent to said curve for a distance of 30 feet; thence
deflect left along a tangential curve having a radius of
716.2 feet (delta angle 16 0591) for a distance of 212.3 feet
and there terminating.
Parcel 2: The West 280.5 feet of that part of Lot 3 lying North
of the South 654.78 feet thereof; except that part of the East
45.50 feet thereof lying South of the Southeasterly right -of -way
line of County Highway No. 62, and except that part thereof
platted as "Evans Addition ", "Cassin's Outlots ", according to
the plat thereof on file or of record in the office of the County
Recorder in and for said County.
- 2 -
That part of the North
Outlots ", according to
the office of the Coun
Minnesota, except that
described as follows:
F.xhi hi t. R
Partnership Land
1,328.73 feet of Lot 2, "Cassin's
the plat thereof on file or of record in
ty Recorder in and for Hennepin County,
part thereof platted as Evans Addition,
Commencing at a point on the West line of Section 29, Township 28
North, Range 24 West, distant 1,107.10 feet North of the West
Quarter corner thereof (the West line of said Section 29 is
assumed to bear North 0 000130" West); thence run easterly at an
angle of 74 024100" (as measured from North to East) for a
distance of 124.10 feet; thence deflect left along a tangential
curve having a radius of 1,527.89 feet (delta angle 18 °26'5511)
for a distance of 491.96 feet; thence South 34 003125" East along
a radial line away from the center of said curve a distance of
50.00 feet to the point of intersection with the following
described Line "A" and the point of beginning; thence South
0 001110" West a distance of 188.77 feet; thence South 58 009'16"
East a distance of 144.69 feet; thence North 30 040140" East a
distance of 62.39 feet; thence ,North 0 001110" East a distance
of 335.85 feet to the following described Line "A "; thence
southwesterly along said Line "A" to the point of beginning.
Line "A" is a line drawn parallel with and distant 50 feet
Southeasterly of the following described line:
Beginning at a point on the West line of Section 29,
Township 28 North, Range 24 West, distant 1,107.10 feet
North of the West Quarter corner thereof; thence run
easterly at an angle of 74 124' (as measured from North to
East) for a distance of 124.1 feet; thence deflect left
along a tangential curve having a radius of 1,527.89 feet
(delta angle 19 0231) for a distance of 516.9 feet; thence
tangent to said curve for a distance of 30 feet; thence
deflect left along a tangential curve having a radius of
716.2 feet (delta angle 16 0591) for a distance of 212.3 feet
and there terminating.
ro
aj
4j
U �
C O
H
W �
U
t-4
4J
to
C
O
U
r
mom colnomolow"
1 I `
L taw .. �AEEr EXWTDOU F*JW.q R
OEVEL,OPIiEW
II :'r
Ia =P
r
r
I
•
/,
t
S!
1"OMED RM1(
Rate MDdIK MIICT I /
WVAL
IIJIMING WALOM AMA *%M Will -
!
r
/
it
L
'[T\ \ .
�•
IUD.ODID NEW tliJf.O Palm dA
�w�yrw � � f
VIAL t1t<PY AMA UU.1 EM
.�
ti��•
3
r
.�'��
RII.Md fEdAltEa
ILLDE'K PM @MAM .�.� w •t. \ IMO1CAL Of SULOM
Fwwwm
.O/1(N NI
tD(K ql
A^W &A.QMN( LEM t..
Iw.( Era "I
.ECO.ID tEV6 1M ,
tMl► IOIN If1.
t1111AC. /MEAD tN
w . ti ��ra rrr
WIAL Itltllt 11wvElm Yq
II :'r
Ia =P
r
1~il
S!
w
[WiI0 0 MbfffAL
3
W
g
--
AILV u
•_� tuur-w'-•
Ali
U)
v
E
Q)
Ul
w
Q �
JJ U)
A U
.c
I
S-4
v
i-1
P4
IC00N4
mo a �wlcr
.00..1. I'*.@ in
U�r,/N M
y►YIN.f I.M. N
r00OM VAl, rI
NJW~ &ALAlY MU rKiM Ylw
r...rww
11100/m Mw OOAIO MAU W^
1001 BUL . MU N.M A.
IOifx Grp= OULAM ww w •M
How-aw NI
W111 1N1
rM00 1r11DngY
IDOL 1t0 rRorwa su
7
WALL -r
-P
E
Q)
Ln
fyj
(L4
IRA -1
COLONIV Comoommum
Ali
ww PORM RAW
GEVEUX%W.NT
•ollom
IOWL an
IIAAIOIIM F.AA To bL
FAA TV •
wo --.w
Ilo n am •LILAMW Pam VA
Taft WILMONS AMA OILM oft
SOON" orcumm
NNNW^ OPP•• Wass,.— n
PKMPML 041
09AL COST
ftlr 6.441olow tam me
socaho tam so
FkAw VMAL on
M
WOW.OL
EXISrlm P&MOM RMW
SCR
CKIRFM HDOMAL
pow" ft ANT
z
W
If
JLLV "M
at.
•CALL r - .• - W Al
F14
4-)
H
X'
14
►ARKIIq RAMP
SIAM
Z— 0
SMWCF D=$(
jIL' ERMANCt FPCIA PIAW
Me
lo� slay"
41E &VEm WORM
TO
"Ol
oftv ic
BASEMENT FLOOR PLAN
i . • . . .
SCALE 0 PUT
Z ■
W
rl
4-)
X
W
a
PARKING RAMP
SIAM
LA
a-TRANCE FROM RAW -t- _ r-
-�_- _- - _
tLfv--
Lomv
ma
� � i •/� I I I i��
-YIJ-
AUTO oa. OFF
FIRST FLOOR PLAN =L==f==l
NOIIM R A 0 ■ Is n TIE
KALE 0 FEET,
Lu
IE I— — z
JALLV
--RIM
MNW
AS
n�
i
•, � w .rw
M•n a•
NIMOSSO PMNM s11Yr
eu ,
I
� wrL.,•..a .
n1OPOM
f•Y Y.N •V•. ••. a•� wi
MOCK �.... M........... ««
CWP C! r r. •w «
sukows
...
_— . _� �._.. ..a. r_ _ •v ..r: �T exnrfa MIIIISIO 11111/
I it
�'� l y`q `II [nnlra no.r •t+fa
/ l I / �'� •r •Yb•O•a0 Larlt•at men
MY•Ow0 Mar Yrfa
�J wwouf rLnarwr
ncstalo MovtrlLL.
7 \ a.,l1Y• Y...aY•YY.
` •Ir.nwna ••Y, ,x•.• • r•rt
1` ►OWM KASl 'I YKnMn aY al wrw YmnrL 1
l ! §U DMO ww n te.Yrwcns
r
1
rMf• IYPYML/A tY1N9t •ffY1Mf st
iMaYLLOr. Met. ilUrY. • LNf6 1111. �� ��!�� � IY wa '
------- Sul _ sYl M01 s0. f000s -OA
I
r
i
r
I
ro
�
A
X
W
N
41
4
�
•,�
0
n�
i
•, � w .rw
M•n a•
NIMOSSO PMNM s11Yr
eu ,
I
� wrL.,•..a .
n1OPOM
f•Y Y.N •V•. ••. a•� wi
MOCK �.... M........... ««
CWP C! r r. •w «
sukows
...
_— . _� �._.. ..a. r_ _ •v ..r: �T exnrfa MIIIISIO 11111/
I it
�'� l y`q `II [nnlra no.r •t+fa
/ l I / �'� •r •Yb•O•a0 Larlt•at men
MY•Ow0 Mar Yrfa
�J wwouf rLnarwr
ncstalo MovtrlLL.
7 \ a.,l1Y• Y...aY•YY.
` •Ir.nwna ••Y, ,x•.• • r•rt
1` ►OWM KASl 'I YKnMn aY al wrw YmnrL 1
l ! §U DMO ww n te.Yrwcns
r
1
rMf• IYPYML/A tY1N9t •ffY1Mf st
iMaYLLOr. Met. ilUrY. • LNf6 1111. �� ��!�� � IY wa '
------- Sul _ sYl M01 s0. f000s -OA
I
r
i
r
I
Z 3�a
2000007
ausl uED VOL •`'(,` PAGE • : �; � ` -
OFFICE OF THE REGISTRAR !d U
OF TITLES
HENNEPIN COUNTY, MINNESOTA
CERTIFIED FILED ON
MAR 151989
so;LafW\
6Y OEPIi
i'