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HomeMy WebLinkAbout2443350 PARE AVENUE NEW YORE, NEW YORE 10022 (212) 415 -9200 1330 CONNECTICUT AVENUE, X. W. WASHINGTON, D. C. 20036 (202) 857 -0700 3 ORACECHURCH STREET LONDON EC3V OAT, ENGLAND 44 -71 -929 -3334 36, RUE TRONCHET T5009 PARIS, FRANCE 33- 1- 42- 66 -59 -49 48, HUE DE TREVES B -1040 BRUSSELS, BELGIUM 32 -2- 238 -78 -11 Mr. Fran Hoffman City of Edina 4801 West 50th Street Edina, Minnesota 55424 DOBSEY & WHITNEY A PAHTNE -- T.-U.- P- 1 ... I -L CO--. 2200 FIRST BANK PLACE EAST MINNEAPOLIS, MINNESOTA 55402 -1498 (612) 340 -2600 Re: Galleria Expansion Dear Fran: TELEX 29 -0605 FAX (612) 340 -2868 THOMAS S. ERICKWN (612) 340 -2659 March 4, 1991 201 FIRST AVENUE, S. W., SUITE 340 ROCHESTER, MINNESOTA 55902 (507) 288 -3156 1200 FIRST INTERSTATE CENTER BILLINGS, MONTANA 59103 (406) 252-3800 201 DAVIDSON BUILDING GREAT FALLS, MONTANA 59401 (406) 727-3632 127 EAST FRONT STREET MISSOULA,MONTANA 59802 (406) 721 -6025 I do not believe I have previously sent to you the various documents involved in connection with the Galleria expansion. Therefore, I enclose herewith for your file the following: A fully executed copy of the Development Agreement ( Galleria Expansion) dated October 8, 1990, between the City and Gabbert & Gabbert Company. 2. Transit Easement dated October 8,1990, between Gabbert & Gabbert Company and the City. You will note that this has been duly recorded in the office of the Registrar of Titles, Hennepin County, Minnesota, as Document No. 2130282. 3. A copy of the Agreement (Conditions to Parking Variance) dated October 8,1990, between Gabbert & Gabbert Company and the City. You will note that this document has been duly recorded in the office of the Registrar of Titles, Hennepin County, Minnesota, as Document No. 2130284. 4. Easement for Storm Sewer dated October 8,1990, between Gabbert & Gabbert Company and the City. You will note that this document has DORSEY & WHITNEY March 4, 1991 Page 2 been duly recorded in the office of the Registrar of Titles, Hennepin County, Minnesota, as Document No. 2130283. 5. Consent and Subordination signed by Northwestern Mutual Life Insurance Company dated February 1, 1991, recorded in the office of the Registrar of Titles, Hennepin County, Minnesota, as Document No. 2153316. This document was requested by me because the Consent and Subordination attached to each of the above documents was not complete when the document was recorded. I send these documents to be kept in your file. This should now complete your file relative to the documentation involved in the expansion. If you have any questions, please advise. Very truly yours, Thomas S. Erickson TSE:jd Enclosures cc: Mr. Gordon L. Hughes (PARKING AGREEMENT) f AGREEMENT (Conditions to Parking Variance) 09 12 IV) THIS AGREEMENT, made and entered into this g day of Ocl, 1990, by and between GABBERT AND GABBERT COMPANY, a Minnesota limited partnership ( "Owner ") and CITY OF EDINA, a Minnesota municipal corporation ("City"); WHEREAS, Owner is the fee owner of certain real property ("Property") located in the City of Edina, County of Hennepin, Minnesota, Iegally described in Exhibit 1 attached hereto and hereby made a part hereof; and WHEREAS, there is presently constructed on the property a shopping center and three commercial buildings and parking to be used in connection with said buildings; and WHEREAS, Owner proposes to demolish some of the existing improvements and to construct upon the Property new improvements, and parking to be used in connection with the remaining existing and new improvements, all as shown on the Final Development Plan approved by the City Council on April 16, 1990, and designated as P -90-3 (said remaining and new improvements being hereinafter called the "Improvements "); and WHEREAS, there has been submitted to the City a parking plan ( "Plan"), which Plan is on file with the City Planner of the City, is labeled "Galleria III Proof of Parking," is comprised of Sheets 5W and 5E, is dated March 15, 1990, and was prepared by BRW, Inc., and which Plan provides for one thousand eight hundred thirteen (1,813) parking spaces upon the Property, and which Plan meets the requirements of the applicable City ordinances except for a building setback variance of 10 feet (from 50 feet to 40 feet) along West 69th Street; and WHEREAS, Owner is of the opinion that not all of the parking spaces, as shown on the Plan, are required for the efficient and proper use and operation of the Improvements, and has requested the City a variance allowing the construction only of one thousand six hundred eighty-three (1,683) parking spaces rather than the one thousand seven hundred ninety -eight (1,798) required by the City ordinances, and a variance allowing the building setbacks as shown in the Final Development Plan rather than the greater setbacks required by City ordinances; and WHEREAS, the City did, on April 16, 1990, in Case No. P -90 -3, grant the requested variances because strict enforcement of the City ordinances would, in this case, cause undue hardship because of circumstances unique to the Property, and the grant of such variances 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 variances 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 variances, 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 variances from its applicable ordinances whereby there need not now be constructed on the Property the number of parking spaces which are now required by City ordinances, subject, however, to the following terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole discretion, that additional parking spaces are required on the Property, then Owner, at its sole cost and expense, shall 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. 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; 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. The additional parking spaces shall be constructed pursuant to the following procedures: (a) The City Manager and the City Planner shall give written notice to Owner and to the then mortgagees of record holding a first lien on all or any part of the Property (the "mortgagees ") 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 P 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 construct such additional parking spaces pursuant to the Plan. (b) 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 unavailability 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 thereafter. The City shall be the sole judge of whether Owner is using due diligence in completing such construction. 3. In the event that Owner fails or refuses to comply with all of the obligations of Owner under this Agreement, or violates any of the provisions hereof, the City shall send Owner and the then mortgagees written notice of Owner's failure, refusal or violation. If such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Owner and mortgagees, mortgagees may, but shall not be obligated to, perform Owner's obligations hereunder. The City agrees to accept such performance by mortgagees as performance by Owner, provided that mortgagees comply with the following requirements: (a) Mortgagees shall (i) either begin construction of the additional parking spaces which Owner was to have constructed 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 mortgagees were given such notice, and (ii) if mortgagees decide to acquire possession of the Property by mortgage foreclosure, commence construction by the earlier of the following dates: (1) the date which is sixty (60) days after the date when mortgagees acquire possession of the Property; and (2) 3 the date which is eighteen (18) months after the date when mortgagees were given notice from the City of Owner's failure, refusal or violation. (b) Once begun, mortgagee shall complete construction with all due diligence. The City shall be the sole judge of whether mortgagees are using due diligence in completing such construction. The City agrees not to exercise any of the remedies available to it for Owner's failure, refusal or violation unless and until mortgagees fail to comply with all of the requirements for mortgagees' undertaking in this Paragraph 3. 4. If Owner fails to commence the construction of additional parking spaces pursuant to Subparagraph 2(b) hereof, and if mortgagees satisfy the requirement of Subparagraph 3(a)(i) hereof, then the City agrees to permit mortgagees to submit a new or revised parking plan for review and approval by the City, and if approved by the City, the additional parking spaces may be constructed pursuant to the new or revised plan; provided, however, that the submission of such plan shall in no event postpone the date by which mortgagees shall commence construction pursuant to Subparagraph 3(a)(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 mortgagees fail to comply with all of the requirements set forth in Paragraph 3 hereof for mortgagees' 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 (but not the building setback variance) described in this Agreement in which case Owner shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan and all applicable ordinances of the City; (b) enter upon the Property by itself or through its agents, employees or contractors, and with such personnel, equipment and materials as the City deems necessary for the purposes of performing the obligations of Owner hereunder which Owner and mortgagees have failed or refused to perform or, at the City's discretion, for the purpose of constructing some or all of the parking spaces shown on the pursuant to the Plan, whether or not then required hereunder to be constructed, without liability or obligation of any kind to Owner, or any owner or occupant of the Property, for trespass or damage to the Property, the Improvements, or other property or improvements thereon, or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Owner, and if any person makes any claim against City, or its officers, agents, 4 employees, representatives or contractors for loss or damage to property or business due to such entry, Owner agrees to hold City, and its officers, agents, employees, representatives or contractors harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City, upon demand of City, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by City, or its officers, agents, employees, representatives or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing hold harmless and indemnity shall not apply to intentional wrongful acts or negligence of the City, or its officers, agents, employees, representatives or contractors. (c) obtain enforcement of this Agreement against Owner by court order for mandatory injunction or other appropriate relief; and (d) revoke, or 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 additions to or replacements of any or all of the Improvements, until such failure or refusal ends and the obligations of Owner hereunder 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 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 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 twelve percent (12 %) per annum from the dates incurred by the City until paid. Owner also agrees to pay all costs of collection of any monies, including interest, due to the City from Owner pursuant hereto, again including attorneys' fees and whether suit be brought or not, with interest at twelve percent (12 %) per annum on such costs of collection from the dates incurred until paid. b. 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 or which it shall be held invalid or unenforceable shall not be affected thereby, and this Agreement, and all of 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 in accordance with this Agreement 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, sent by registered or certified mail, postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Owner: 3510 West 70th Street Edina, Minnesota 55435 Attention: Warren Beck To first lien mort- To their address shown of record, gagees of record: to their Minnesota address, or to the address given to the City, as selected by the City. Notices shall be effective upon personal delivery or, if mailed, one business day after mailing or depositing in the above manner. The address of City and Owner may be changed by either party upon notice to the other party given as herein provided ten (10) days prior to the effective date of such change. 8. 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, for any reason, the provisions hereof should be determined by a court of competent jurisdiction, not to be binding upon and fully enforceable against any owner of the Property, the parking variance granted by City in Case No. P -90-3 shall wholly cease and terminate and the Parking on the Property shall be used and usable only in full compliance with all applicable ordinances of the City. 9. The Agreement (Conditions to Parking Variances) between Gabbert and Gabbert Company, a Minnesota limited partnership, and City of Edina, dated April 21, 1980, and filed July 31, 1980, as Document No. 1389800, in the office of the Registrar of Titles, Hennepin County, Minnesota, shall be released and terminated in its entirety upon the filing of this Agreement in the office of the Registrar of Titles, Hennepin County, Minnesota. 2 10. Each party hereby agrees that upon written request, from time to time, of the other party, it will issue an Estoppel Certificate stating: (a) whether the party to whom the request has been directed knows of any default by the requesting party under this Agreement, and if there are known defaults, specifying the nature thereof; (b) whether, to the party's knowledge, this Agreement has been modified or amended in any way (and if it has, then stating the nature thereof); (c) that, to the party's knowledge, this Agreement as of that date is in full force and effect, or if not, so stating; (d) the nature and extend of any setoffs, claims or defenses then being asserted or otherwise known by the party against enforcement of such party's obligations hereunder; and (e) such other matters as may reasonably be required by the requesting Pty Such statement shall act as a waiver of any claim by the party furnishing it to the extend such claim is based upon facts contrary to those asserted in the statement and to the extend the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts contrary to those contained in the statement, and who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such party to disclose correct and /or relevant information. 11. Owner, and any successor owner of all or any part of the Property, shall be liable under this Agreement only for obligations and liabilities which accrue while the record owner of all or any part of the Property, and once Owner, and each such successor owner, is no longer the record owner of any part of the Property, the liability hereunder of Owner, and such successor owner, shall cease and terminate except for obligations which accrued during such record ownership. The foregoing provision shall not prevent exercise by City of the remedies at paragraphs 5(a), 5(b), 5(c) or 5(d) hereof as to the record owners of the Property, even if for the failure of a then prior record owner of all or any part of the Property. If there is, at any time, more than one record owner of the Property, their liability hereunder shall be joint and several. In addition, the foregoing notwithstanding, if the Property is hereafter divided into separate parcels with different owners, then the obligations hereunder of Owner shall apply only to the owners of the separate parcel or parcels on which the additional parking spaces are to be constructed, and if there be more than one such owner, their liability hereunder shall be joint and several. 7 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By �,J -L ��, A General Partner CITY OF EDINA C C By--41" / ayor 3 And Manager STATE OF MINNESOTA) C,ux'e"-, ) ss. COUNTY OF' ) The foregoing instrument was acknowledged before me this day of O c- -o o -e-P_ 01191(:�,, by L-- [� e-c * , a general partner of Gabbert and Gabbert Company, a Minnesota limited partnership, on behalf of the partnership. clw- Notary Public DIANA L. GILBE J to NOTARY PUBLIC - A CARVER COUNTY My Camntwbn EvhS MV-18.1W l STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowled ed before me this �� day of y-^'1 19-x, by �F �y �aA1 /-h r X40 / and :60 huh L 0^,D Mayor and Manager respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. Wo W'00� Notary Public E J -�}� CANDICE L. FIEDLER F1fl���•e NOTARY PUBLIC - MINNESOTA 1 HENNEPIN COUNTY ,7JS�F My Commission Expires Dec. 9, 1991 E CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests in the Property as described in the Agreement (Conditions to Parking Variance) to which this Consent and Subordination is attached: All in the office of the Registrar of Titles, Hennepin County, Minnesota; does hereby agree and consent to all of the terms and conditions of said Agreement, and agrees that the liens and interests above described and all renewals, modifications and extensions thereof, are and shall be subordinate to the rights granted to, and created in favor of, City by said Agreement, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Agreement, in the event it becomes the owner of the Property. THE NORTHWESTERNUTUAL LIFE INSURANCE COMP AN V 1C � And STATE OF WISCONSIN ) ) ss. COUN'T'Y OF MILWAUIEE ) Its M. Hewitt The foregoing Consent and Subordination was acknowledged before me this 1st day of October , 1990, by Eugene R. Skaggs and Gary M. Hewitt J theVice President and Secretary respectively, of THE NORTHWESTERN MUTUAL LIFE INSU C COMPANY, in corporation, on behalf of said corporation. eoza�o�r�a�r BERNICE BUSS NOTARY PUBLIC STATE OF WISCONSIN a f Notary Public Bernice Buse My Commission Expires: 10 January 26, 1992. E)GUBTT 1 (Property) Tracts A, C and D, Registered Land Survey No. 1171, Files of the Registrar of Titles, Hennepin County, State of Minnesota. Tracts A and B, Registered Land Survey No. 1355, Files of the Registrar of Titles, Hennepin County, State of Minnesota, except that part of said Tract B embraced within Registered Land Survey No. 1466. Tracts A, B and C, Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, State of Minnesota. (y) IN, 2130284 KUSTERED VO !-G-!5---TERID, VOU-77d COPY, PAG OFFICE OFTHE RAP, OF TITLES .L HENNEPIN COUNTY, MININTESOTh CERTIFIED FILED ON Az' 2� 1�7-1141 r rEG!',3TR,',',R OF TITLES DEPUTY 0 A 1 Loan No. 331467 CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests (i) in the Easement Area as described in the Easement for Storm Sewer recorded as Document No. 2130283, (ii) in the Property as p��m�nt1No.12�130284 Agreement (Conditions to Parking Variance) and (iii) in the Owner Parcel as described in the Transit Easement Titles, r eorded aCount}', Document No. 2130282, all in the office of the Registrar of Minnesota: Mortgage and Security Agreement dated October 8, 1990, filed October 16,1990 as Document No. 2130279; Absolute Assignment of Leases and Rents dated October 8, 1990, filed October 16, 1990 as Document No, 2130280; All in the office of the Registrar. of Titles, Hennepin County, Minnesota; and Financing Statement filed with the Secretary of State on October -15, 1990 as Document No. 1 365014 does hereby, for $1.00 and other good and valuable consideration to it in hand paid, the receipt and sufficiency of which is hereby acknowledged by the undersigned, agree and consent to all of the terms and conditions of said Easement for Storm Sewer, Agreement (Conditions to Parking Variance) and Transit Easement, (herein together called the "Agreements"), and agrees that ns the liens interest a above be described and all renewals modifications and e subordinate to the rights granted to, and created in favor of, City by said Agreements, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Grantor and Owner, as defined in said Agreements, in the event it becomes the owner of the Easement Area or Property as described in said Agreements. IN - WITNESS WHEREOF, the undersigned has caused this Consent and Subordination to be duly executed as of the —14�61ay of Fphrijarg 11991'. THE NORTHWEST MUTUAL LIFE MCT��MFANY V Tie uaene R. Ska s Vice President APPIiC4IA ■w Attest: X Its Have Mes Asst. Secretary .1. -.' 1_r II, r. STATE OF WISCONSIN ) COUNTY OF NOLWAUKEE ) The foregoing Consent and Subordination was acknowledged before me this 1 st day of February, 15 fl 1, by and , Ke I V Hi'lY�.y F G the and - A. s y sbc etary ,respectively, of THE NORT"f WESTERN MUTUAL LIFE INSU COMPANY, a Wisconsin corporation, on behalf of the corporation. i PU`BBERNICE BUSE NOTARY TIC STATE OF WISCONSIN ..oxo� �se�o•w.�o•�rr+ Drafted by: Title Insurance Company of Minnesota 400 Second Avenue South Minneapolis, Minnesota 55401 Attention: Ms. Judy A. Hermanson Notary Public My commission expires: January. 26, 1992 2153319 jTM Wt__ _EFT'rf VOL _I 14) PM-CE OFF-TH E RMSTRARI OFTIT.QES KN'N`Ft:Po':N AIMAIESUTA kpE lf�If_D FILED 0:`,�' ,l E ?'T - REGISTRAR OF TITLES DEPUTY N A 1: 3# DEVELOPMENT AGREEMENT ( Galleria Expansion) 4-h THIS AGREEMENT made and entered into as of the day of +U b n L 1990, between the City of Edina, a Minnesota municipal corporation e "City "), and Gabbert and Gabbert Company, a Minnesota limited partnership ( "Developer "). RECITALS: A. Developer is the owner of the property situated in the City as described on Exhibit A attached hereto and hereby made a part hereof (the "Development Property "). B. Developer proposes to improve the property by construction of certain buildings thereon as shown on the Final Development Plan, designated.by the City as P -90 -3, approved by the Council of the City on April 16, 1990 (the " Galleria Expansion "). C. In connection with the Galleria Expansion it is necessary to construct a storm sewer line designated by the City as Storm Sewer Project No. STS -207, from the Development Property southerly to tie into the Centennial Lakes storm water system (the "Storm Sewer "). D. In connection with the Galleria Expansion the City also desires to obtain an easement for mass transit vehicles to be owned or operated by or for this City or the Housing and Redevelopment Authority of Edina, Minnesota, a body politic and corporate under the laws of the State of Minnesota (the "HRA "), and to provide for construction of the transit easement on the Development Property. E. In connection with the Galleria Expansion, and as a condition to the approval of the Final Development Plan, the City also has required that the Developer execute and deliver an agreement relating to the parking spaces on the Development Property. F. To accomplish the foregoing the parties hereto desire to enter into this Agreement. NOW, THEREFORE, for and in consideration of the terms and conditions herein set out, the City and Developer agree as follows: Y iA 1. Storm Sewer. (a) The City shall construct the Storm Sewer from the north right -of -way line of West 70th Street southerly to its terminus in the area known as Centennial Lakes (the "City Portion ") all pursuant to plans and specifications to be prepared by or for the City, and to be approved by the City. (b) Developer shall construct the Storm Sewer from the North right -of -way line of West 70th Street into the Development Property to serve the Development Property (the "Developer Portion "), all pursuant to plans and specifications to be approved by the City, which approval shall not be unreasonably withheld or delayed. (c) The City shall pay the cost of constructing the City Portion, up to a total amount of One Hundred Seventy -five Thousand and No /100 Dollars ($175,000.00). Such cost shall include the actual amounts paid by the City for constructing the City Portion of the Storm Sewer, but shall not include any other costs incurred by the City in connection with the City Portion, including any costs for the plans and specifications for the City Portion, any fees and charges normally made by the City for its engineering services, including staking and inspection, or any capitalized interest. (d) If the cost of construction (as determined pursuant to paragraph 1(c)) is in excess of One Hundred Seventy -five Thousand and No /100 Dollars ($175,000.00), such excess shall be paid by Developer to City within thirty (30) days after written notice of the amount of such excess is given to Developer by the City. If such excess amount is not paid to City within said thirty (30) day period, interest shall accrue from and after the end of said thirty (30) day period, on the portion thereof from time to time unpaid, at the rate of twelve percent (12 %) per annum. City shall have, and may use, all remedies then available to it at law or in equity to collect such excess, with interest thereon, and Developer shall pay all costs of collection thereof, including reasonable attorneys' fees whether suit be brought or not, with interest on such costs of collection at twelve percent (12 %) per annum from the dates such costs are incurred, until paid by Developer. (e) The cost of constructing the Developer Portion, including the cost of plans and specifications therefor, and all other costs, fees and charges in connection with the Developer Portion, shall be paid by Developer, and the City shall have no obligation or liability therefor. 2. Transit Easement; Construction. (a) City and Developer agree to execute and deliver, concurrently with the execution and delivery of this Agreement, the Transit Easement (the "Transit Easement ") attached hereto as Exhibit B and hereby made a part hereof. Developer also agrees to obtain execution and delivery of the Consents and Subordination to such Transit Easement by the lienholders named in such Consents and Subordinations. Execution and delivery by all such parties shall be a condition precedent to issuance by the City of any building permits for any of the improvements to be constructed as a part of the Galleria Expansion. The Transit Easement when executed and delivered, shall be filed and recorded at the expense of the City. (b) Developer agrees to construct, without cost or charge to City or the HRA (i) the transit drive aisle, including retaining walls, over and across the Development Property, (ii) the curb cuts on West 69th Street and West 70th Street giving access to such drive aisle, and (iii) the Passenger Areas described in the Transit Easement, all in the easement locations granted by and described in the Transit Easement. Such construction shall be done in substantial compliance with the plans and specifications identified on Exhibit C attached hereto and hereby made a part hereof. The foregoing notwithstanding, it is agreed (x) that Developer shall not construct at this time the curb cut on the south side of West 69th Street, nor the transit drive aisle from West 69th Street south to the parking lot area on the Development Property and the construction referred to in this clause (x) is not subject to the construction deadlines set forth below; (y) that, in lieu thereof, Developer shall now construct a sidewalk, on the Transit Easement, from the north edge of the parking lot northerly to the south curb line of West 69th Street, such sidewalk to be constructed in substantial compliance with the plans and specification for public sidewalks then used by the City. Once commenced, Developer shall diligently pursue such construction so as to complete the same at approximately the time of completion of the Galleria Expansion; provided, however, in any event, such construction shall be completed by not later than December 31,1992. (c) If, for any reason, Developer does not complete construction of the drive aisle, curb cut, sidewalk, and Passenger Areas as required by paragraph 2(b) hereof, by December 31, 1992, then the City may levy an assessment against the Property in an amount equal to the amount paid by the City for the construction of the City Portion of the Storm 3 Sewer determined pursuant to paragraph 1(c) hereof, but including in such amount such costs and charges as are then normally calculated and charged by the City in connection with special assessments, including, without limitation, capitalized interest and fees for City engineering services. The assessment so levied shall bear interest in the amount then charged by the City on special assessments, and shall include interest for the periods of time for which interest is then normally charged by the City in connection with special assessments. Such assessments shall be made payable over a period of at least 10 years. Such assessment may be levied by City without any notice or hearing of any kind, and Developer hereby agrees not to contest such levy and assessment and hereby waives any and all objections to such levy and assessment, including, without limitation, the amount thereof, the hearing process or lack thereof (including the giving of, or failure to give, or error in giving, any notice required by applicable statutes in connection with the construction of the Storm Sewer or the levying of such assessment), and including all rights of appeal from such levy. The installments of such assessment shall be collected with the real estate taxes against the Development Property, and if any such installment is not paid when due and before it becomes delinquent, the Development Property may be sold and conveyed in the same manner, and with the same effect, as lands forfeited for nonpayment of real estate taxes are sold and conveyed. 3. Proof of Parking _ Agreemen . City and Developer agree to execute and deliver, concurrently with the execution and delivery of this Agreement, the Agreement (Conditions to Parking Variance) attached hereto as Exhibit D and hereby made a part hereof (the "Parking Agreement "). Developer also agrees to obtain execution and delivery of the Consents and Subordinations to such Parking Agreement by the lienholders named in such Consents and Subordinations. Execution and delivery by all such parties shall be a condition precedent to issuance by City of any building permits for any of the improvements to be constructed as a part of the Galleria Expansion. The Parking Agreement, once executed and delivered, shall be recorded at the expense of Developer. 4. Storm Sewer Easement. City and Developer also agree to execute and deliver, concurrently with the execution and delivery of this Agreement, the Easement for Storm Sewer attached hereto as Exhibit E and hereby made a part hereof (the "Storm Sewer Easement "). Developer also agrees to obtain execution and delivery of the Consent and Subordination to such Storm Sewer Easement by the lienholder named in such- Consent and Subordination. Execution and delivery by all such parties shall be a condition precedent to issuance by City of any building permits for any of the improvements to be constructed as a part of the Galleria Expansion. The Storm Sewer Easement, once executed and delivered, shall be recorded at the expense of Developer. 2 5. Recording. The Transit Easement and Parking Agreement shall be recorded in the Office of the Registrar of Titles, Hennepin County, Minnesota, at the cost and expense of Developer, and Developer shall make available for such purpose all necessary owner's duplicate certificates of title. 6. Notices. Any notice, demand, request or other communication required or permitted to be given to the City or the Developer shall be sufficiently given and served, and shall be effective and deemed properly given and served, upon receipt by the addressee when deposited in the United States mail and sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: City: c/o City Manager 4801 West 50th Street Edina, Minnesota 55424 Developer: c/o Warren L. Beck 3510 West 70th Street Edina, Minnesota 55435 or at such other address (or to the attention of such other person) with respect to either party as that party may, from time to time, designate by at least fifteen (15) days prior notice given to the others as provided in this Section; provided, however, anything herein contained to the contrary notwithstanding, in order for notice of address change to be effective, it must actually be received by the addressee. Except as provided in the immediately preceding sentence, notice, demand, request, or other communication shall be deemed given, received and served if mailed or delivered as above provided even if rejected or refused, or if the notice could not be delivered because no one was present or available at the place of delivery or because of changed address of which no effective notice was given. Any party may give notice as above provided in this Section of other additional persons to whom a copy of any notice, demand or request or other communication is to be given, but failure of any party to give such a copy to any such additional persons shall not invalidate or affect in any way the notice, demand, request or other communication otherwise properly given or served to or on a party pursuant to this Section. The return receipt date stamp of the United States Post Office shall be conclusive proof of the receipt of any notice given as above provided, and the date of such receipt. 7. Severability. If any provision of this Agreement is for any reason held to be invalid or unenforceable as to all or any part of the Development Property or any improvement now or hereafter located thereon, or any person or circumstance, the application of such provision to any portion of the Development Property, or to any such improvement, or to persons or circumstances, other than 5 those as to which it shall be held invalid and unenforceable, shall not be affected thereby, and all provisions of this Agreement is all other respects shall remain in full force and effect and be valid and enforceable. 8. Remedies. If either party shall default in its agreements, obligations or duties hereunder, or if Developer fails to pay any installment of any assessment levied pursuant to paragraph 2(c) hereof, the other party shall have available, and may use and enforce, any remedies set out in this Agreement, or otherwise available at law or in equity, either separately or concurrently as such party shall determine, and the use of one remedy shall not waive or preclude the use of one or more remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder shall not preclude either party from thereafter exercising any of that party's remedies for the same or a subsequent failure or refusal. Also each party hereto agrees to pay to the other all costs and expenses incurred by the other in exercising any remedies due to default by a party, including reasonable attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at 12% (12 %) per annum from the dates incurred until paid. Each party also agrees to pay all costs of collection of any monies, including interest, due from it pursuant to this Agreement, again including reasonable attorneys' fees, whether suit be brought or not, with interest at 12% (12 %) per annum on such costs of collection from the dates incurred until paid. The foregoing provisions of this paragraph notwithstanding, it is agreed that the only remedy of the City for failure of Developer to complete construction pursuant to paragraph 2(b) hereof, shall be to levy the assessment pursuant to paragraph 2(c) hereof. 9. Binding Effect. ffect. 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 Development Property and be binding upon all present and future owners of the Development Property. 10. Authority. Each of the parties hereto represents that (i) it has the legal power, capacity and authority to enter into and carry out the terms and provisions of this Agreement and of the exhibits hereto, (ii) this Agreement and the exhibits hereto, are valid, binding and legally effective acts of such party, and not in contravention of any contract or agreement of such party, and (iii) the execution, delivery and performance of this Agreement and of the exhibits has been duly authorized by all necessary action of such party and its governing body. 11. Governing Law. This Agreement shall be governed by and enforced according to the laws of the State of Minnesota. 12. Amendments. This Agreement may be amended and modified only by written agreement signed by City and Developer with the same formality as I I ( I I this Agreement, and no amendment or modification shall be binding on the parties hereto or have any affect unless so made. 13. Estovvel Certificate. Each party hereby agrees that upon written request, from time to time, of the other party, it will issue an Estoppel Certificate stating: (a) whether the party to whom the request has been directed knows of any default by the requesting party under this Agreement, and if there are known defaults, specifying the nature thereof; (b) whether, to the party's knowledge, this Agreement has been modified or amended in any way (and if it has, then stating the nature thereof); (c) that, to the party's knowledge, this Agreement as of that date is in full force and effect, or if not, so stating; (d) the nature and extent of any setoffs, claims or defenses then being asserted or otherwise known by the party against enforcement of such party's obligations hereunder; and (e) such other matters as may reasonably be required by the requesting party. Such statement shall act as a waiver of any claim by the party furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts contrary to those contained in the statement, and who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such party to disclose correct and /or relevant information. 7 I I I t � IN WITNESS WHEREOF, City and Developer have caused this Agreement to be duly executed as of the day and year first above written. CITY OF EDINA By Its Mayor An Its Manager GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By 1; A General Partner STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowled ed before me this �_ day of 19 by -.� � S_ E Audv and the Mayor and Manager, respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. Not�� Public CANDICE L. FIEDLER mss- ► NOTARY PUBLIC - MINNESOTA My Commission NIVEPINPCODUcs, 1991 STATE OF MINNESOTA ) CA-kA� ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 19-2o by a general partner of Gabbert and Gabbert Company, a Minnesota limited partnership, on behalf of the partnership. 0 Notary Public NOTARY PUBLIC • IfA CARVER COUNTY M j bn E*W MW.18.1W '4 EXHIBIT A (Development Property) Tracts A, C and D, Registered Land Survey No. 1171, Files of the Registrar of Titles, Hennepin County, Minnesota. Tracts A and B, Registered Land Survey No. 1366, Files of the Registrar of Titles, Hennepin County, Minnesota, except that part of said Tract B embraced within Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, Minnesota. Tracts A, B and C, Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, Minnesota. I , I EXHIBIT B TRANSIT EASEMENT THIS AGREEMENT, made as of this � day of 11- 1990, by GABBERT AND GABBERT COMPANY, a Minnesota limited partnership (the "Owner ") and CITY OF EDINA (the "City "), a Minnesota municipal corporation. WITNESSETH: WHEREAS, Owner is the owner of certain property located in the City of Edina, Hennepin County, Minnesota, described on Exhibit I attached hereto and hereby made a part hereof (the "Owner Parcel "); and WHEREAS, the City desires to obtain certain easements over and across the Owner Parcel for use by mass transit vehicles (the "Vehicles ") to be owned or operated by or for the City or the Housing and Redevelopment Authority of Edina, Minnesota, a body politic and corporate under the laws of the State of Minnesota (the "HRA "). NOW, THEREFORE, Owner and City for One Dollar ($1.00) and other good and valuable consideration to each in hand paid, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, do hereby agree as follows: 1. Grant of Easements. Owner hereby grants and warrants to the City without cost or charge to the City or the BRA, a non - exclusive easement (the "Transit Easement ") over and across that portion of the Owner Parcel described in Exhibit II attached hereto and hereby made a part hereof, for use by said Vehicles for passage through the Owner Parcel and from and to the public streets adjoining the Owner Parcel, and for loading and unloading passengers at the Passenger Areas (as defined pursuant to paragraph 2 hereof). 2. Passenger Area Owner hereby grants and warrants to the City, without cost or charge to the City or the BRA, a non - exclusive easement over and on those portions of the Owner Parcel described in Exhibit III attached hereto and hereby made a part hereof (the "Passenger Areas ") for use as a place for the gathering of passengers for the Vehicles, and as a place to load and unload such passengers. 3. Traffic Rules: Signs. (a) The Vehicles shall be subject to all rules and regulations established, from time to time, by Owner for the control and regulation of traffic and motor vehicles on the Owner Parcel; but Owner shall not impose any rules and regulations on the Vehicles which are more b , I ' 4 onerous or restrictive than those imposed generally on other traffic and motor vehicles on the Owner Parcel. (b) The City and BRA may post on the Owner Parcel and the improvements thereon, at their expense, such signs at such locations as they or either of them deem necessary or desirable to advise passengers of the routes and time schedules of the Vehicles, and the location of the Passenger Areas; the location and design of such signs shall be approved by the Owner prior to posting. Owner agrees not to unreasonably withhold or delay such approval. 4. Maintenance. Owner shall do all repair and maintenance, including snow and debris removal, of said Transit Easement and Passenger Areas as shall be necessary to keep them in good repair and condition, and the City and the HRA shall have no obligation of any kind to make or do any such repairs or any such maintenance. 5. Hold Harmless by Owner. The City and the BRA shall have no liability or obligation of any kind for any claim or demand arising out of, or alleged to arise out of, the design, construction, maintenance, repair, reconstruction or replacement or all or any part of such Transit Easement or Passenger Areas, and Owner shall hold the City and the BRA, and their respective officers, agents, employees and representatives, harmless from and indemnified against any loss, cost, damage or expense, including reasonable attorneys' fees, arising out of, or claimed to arise out of, any of the matters above set out in this paragraph, or out of the failure, or alleged failure, of Owner to have fulfilled its obligations as set out in paragraph 4 hereof, or out of the act or neglect, or alleged act or neglect, of Owner, or the tenants of Owner, or their respective officers, agents, employees, representatives, guests or invitees. All such loss, cost, damage and expense shall be paid by Owner within thirty (30) days of demand made by the City or HRA, and if not so paid shall bear interest at 12% per annum from the date demanded until paid. 6. Hold Harmless By City. The City hereby agrees to hold Owner, and its officers, agents, employees and representatives harmless from and indemnified against any loss, cost, damage or expense, including reasonable attorneys' fees, arising out of the operation of such Vehicles on the Owner's Property, except for such loss, cost, damage, expenses or fees as may arise out of the failure or alleged failure of Owner to have fulfilled its obligations as set out in paragraph 4 hereof, or out of the act or neglect or alleged act or neglect of Owner, or the tenants of Owner, or their respective officers, agents, employees, representatives, guests or invitees. All such loss, cost, damage and expense shall be paid by City or HRA upon demand made by Owner, and if not so paid shall bear interest at 12% per annum from the date demanded until paid. 2 7. Remedies. (a) If Owner fails to do the repair and maintenance required by paragraph 4 hereof, City or BRA, at their options, may enter upon the Owner Parcel by itself or themselves, or through its or their agents, employees or contractors, and with such personnel, equipment and materials as the City or HRA deems necessary for the purpose of doing such repair or maintenance. The City and BRA, and their respective officers, agents, employees, representatives and contractors shall have no obligation or liability to Owner or any owner or occupant of the Owner Parcel for trespass or damage to the Owner Parcel or any improvements thereon, for loss of business or business interruption or any other cause, all of which liability and obligation is hereby waived by Owner, and if any person makes any claim against City or BRA, or their respective officers, agents, employees, representatives or contractors for loss or damage to property or business due to such entry, Owner agrees to hold the City and HRA, and their respective officers, agents, employees, representatives and contractors harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City or HRA, upon demand of the City or HRA, as the case may be, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by the City or the BRA, or their respective officers, agents, employees, representatives or contractors, with interest at 12% per annum from the date demanded until paid; provided, however, that the foregoing hold harmless and indemnity shall not apply to intentional wrongful acts or negligence of the City or HRA, or their respective officers, agents, employees, representatives or contractors. (b) The City, BRA and Owner shall also have available all other remedies then allowed at law or in equity, including mandatory injunction, to enforce any of the obligations and duties of any party hereto, or to recover damages for default therein. (c) All of the remedies available to City, HRA and Owner shall be usable and enforceable separately or concurrently, and the use of one remedy shall not waive or preclude the use of one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy shall not preclude any party from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Owner agrees to pay to the City and BRA, and the City and HRA agree to pay to Owner, any and all costs and expenses incurred by the other in 4 enforcing this Agreement by use of the remedies set out herein or by other remedy or means available at law or in equity, including attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at twelve percent (12 %) per annum from the dates incurred until paid. (d) Owner and City also agree to pay all costs of collection of any monies, including interest, due from or by it pursuant hereto, again including attorneys' fees and whether suit be brought or not, with interest at twelve percent (12 %) per annum on such costs of collection from the dates incurred until paid. 8. Notice. Any notice, report or demand required or permitted to be given by -any party hereof upon or to any other party hereto shall be in writing and shall be deemed given in accordance with this Agreement 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, sent by registered or certified mail, postage prepaid thereon, addressed to the parties at the following addresses: If to Owner: 3510 West 70th Street Edina, Minnesota 55435 Attn: Warren Beck If to City or HRA: City of Edina 4801 West 50th Street Edina, Minnesota 55424 Attn: City Manager Notices shall be effective upon personal delivery, or if mailed, one business day after mailing or depositing in the above manner. Any party may change its address for the service of notice by giving written notice of such change to the other party, in the manner above specified, ten days prior to the effective date of such change. 9. No Gift or Dedication. Nothing herein contained shall be deemed to be a gift or dedication of the easements hereby created, or any portion thereof, to the general public, even though some of the easements hereby created may be used for or by the general public. 10. Amendments. This Agreement may be amended by, and only by, a written agreement executed by the Owner and by the City. All amendments to be effective, once duly signed, shall be recorded or filed in Hennepin County, Minnesota, in the same office in which this agreement is recorded or filed to give constructive notice thereof. 4 } 11. Run With Title; Successors and Assign. The easements hereby granted, declared and created, and the provisions hereof, shall run with the Owner Parcel and every part thereof without regard to technical classification and designation, legal or otherwise, and will be binding upon, to the fullest extent permitted by law and in equity, and shall inure to the benefit of, and be enforceable by, the parties hereto, and the BRA, and their respective successors and assigns, and all present and future owners of the Owner Parcel. 12. Estoppel Certificate. Each party hereby agrees that upon written request, from time to time, of the other party, it will issue an Estoppel Certificate stating: (a) whether the party to whom the request has been directed knows of any default by the requesting party under this Agreement, and if there are known defaults, specifying the nature thereof; (b) whether, to the party's knowledge, this Agreement has been modified or amended in any way (and if it has, then stating the nature thereof); (c) that, to the party's knowledge, this Agreement as of that date is in full force and effect, or if not, so stating; (d) the nature and extent of any setoffs, claims or defenses then being asserted or otherwise known by the party against enforcement of such party's obligations hereunder; and (e) such other matters as may reasonably be required by the requesting party. Such statement shall act as a waiver of any claim by the party furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts contrary to those contained in the statement, and who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such party to disclose correct and /or relevant information. 13. Liability Limitation. Owner, and every successor owner of all or any part of the Transit Easement area or Passenger Areas, shall be liable under this Agreement only for obligations and liabilities which accrue while a record owner of 5 I 1 � all or any part of the Transit Easement area or the Passenger Areas, and once Owner, and each successor owner, is no longer the record owner of any part of the Transit Easement Area and Passenger Areas, the liability hereunder of Owner and such successor owner shall cease and terminate except for obligations which accrued during such record ownership. The foregoing provision shall not prevent exercise of the remedy at paragraphs 7(a) or 7(b) hereof (except damages) as to the then record owners of the Transit Easement area and Passenger Areas even if for the failure of a then prior record owner of all or any part of the Transit Easement area or Passenger Areas. If there is, at any time, more than one record owner of the Transit Easement area or Passenger Areas, their liability hereunder shall be joint and several. 14. Construction and Assessment. (a) By paragraph 2(b) of a Development Agreement ('Development Agreement ") dated as of , 1990, between Owner and the City, Owner has agreed to construct, without cost or charge to the City, portions of the Transit Easement area and all of the Passenger Areas, all as provided in the Development Agreement. Said Development Agreement also provides that if such construction is not completed by December 31, 1992, then the City may levy an assessment against the Owner Parcel for certain costs incurred and paid by the City pursuant to the Development Agreement without notice or hearing, and Owner has agreed not to contest such assessment and waives all objections to the assessment, including all rights of appeal from such levy. Said Development Agreement also provides that if any installment of such assessment is not paid when due, the Owner Parcel may be sold and conveyed in the same manner, and with the same effect, as lands forfeited for nonpayment of real estate taxes are sold and conveyed. This reference to the Development Agreement is made to put future owners and encumbrancers on notice of such assessment right of the City. (b) Owner also agrees that if, for any reason, the portions of the Transit Easement area, and the Passenger Areas, are not constructed by Owner pursuant to, and as required by, paragraph 2(b) of the Development Agreement, then the City and the HRA shall have the same rights to enter upon the Owner Parcel, by itself or themselves, or through its or their agents, employees or contractors, as are granted to City and HRA by said paragraph 7(a) hereof, and the provisions of paragraph 7(a) hereof shall apply, but, in this case, for the purpose of constructing the portions of the Transit Easement area, and Passenger Areas (or so much or such parts thereof as the City or HRA determines to construct), as are not constructed by Owner pursuant to, and as required by, paragraph 2(b) of the Development Agreement; except, 21 t ,Y however, that the cost of such construction shall not be charged to or be an obligation of Owner. (c) Owner also agrees, upon request of the City, and without cost or charge to City or the HRA, to construct the curb cut on the South side of West 69th Street giving access to the Transit Easement area on the Owner Parcel, remove the sidewalk constructed pursuant to part (y) of paragraph 2(b) of the Development Agreement, construct the transit drive aisle along the Transit Easement area from West 69th Street south to the parking lot area on the Owner Parcel in substantial compliance with the plans and specifications for the Transit Easement area as set out in the Development Agreement, and, as a part of completing such drive aisle, remove the sidewalk along the south side of West 69th Street within the Transit Easement area and reconstruct such portion of said sidewalk in substantial compliance with the plans and specifications for the Transit Easement area itself. It is understood that City does not intent to give such notice until such time as it anticipates that the Transit Easement area will be needed for actual use by the transit system to be owned or operated by the City or the HRA. Said notice from the City shall set forth a date for completion of the work to be done by Developer pursuant to this paragraph (c), which shall not be less than ninety (90) days after the date of the notice. If, for any reason, Developer does not complete such work by such completion date, the City may exercise the same remedies as are given to it by paragraph 7 hereof for a failure by Owner to repair and maintain the Transit Easement and Passenger Areas. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of the date and year first above written. GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By A General Partner CITY OF EDINA By Mayor And 7 Manager I ,' I 1 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of ,19 , by , a General Partner of Gabbert and Gabbert Company, a Minnesota limited partnership, on behalf of the partnership. Notary Public STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of 19___, by and the Mayor and Manager respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. THIS INSTRUMENT DRAFTED BY: DORSEY & WHITNEY (TSE) 2200 First Bank Place East Minneapolis, Minnesota 55402 91 Notary Public CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests in the Owner Parcel as described in the Transit Agreement to which this Consent and Subordination is attached: All in the office of the Registrar of Titles, Hennepin County, Minnesota; does hereby agree and consent to all of the terms and conditions of the Transit Easement to which this Consent and Subordination is attached, and agrees that the liens and interests above described and all renewals, modifications and extensions thereof, are and shall be subordinate to the easements and interests granted and created by the Transit Easement, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Transit Agreement, in the event it becomes the owner of the Property. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY By Its ene R. SkayJsJJice President Its Patricia A, Zim6glrmann, Asst Secretary STATE OF WISCONSIN ) ) ss. COUNTY OF MILWAUKEE ) The foregoing Consent and Subordination was acknowledged before me this 3rd day of October 1990, bv Eugene R. Skaggs and Patricia A. Zimmermann the Vice Presidenf and Ass" t secretary respectively, of THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, on behalf of said corporation. ' BERNICE BUSS NOTARY PUBLIC STATE OF WISCONSIN Notary Public 0 My commission expires January 26, 1992 z EXHIBIT I (OWNER PARCEL) Tracts A, C and D, Registered Land Survey No. 1171, Files of the Registrar of Titles, Hennepin County, Minnesota. Tracts A and B, Registered Land Survey No. 1366, Files of the Registrar of Titles, Hennepin County, Minnesota, except that part of said Tract B embraced within Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, Minnesota. Tracts A, B and C, Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, Minnesota. EXHIBIT II (TRANSIT EASEMENT) All those parts of TRACT B, REGISTERED LAND SURVEY N0. 1366 and TRACT C, REGISTERED LAND SURVEY N0. 1171, files of the Registrar of Titles, Hennepin County Minnesota; described as follows: Commencing at the southwest corner of said TRACT B, REGISTERED LAND SURVEY N0. 1366; thence North 89 degrees 45 minutes 00 seconds East, assumed bearing, along the southerly line of said TRACT B for 596.06 feet to the actual point of beginning; thence North 00 degrees 17 minutes 33 seconds West for 23.72 feet; thence North 14 degrees 42 minutes 27 seconds East for 98.53 feet; thence northerly along a tangential curve, concave to the west, having a radius of 43.64 feet and a central angle of 15 degrees 00 minutes 00 seconds, for 11.42 feet; thence North 00 degrees 17 minutes 33 seconds West for 192.75 feet;,thence northerly and northwesterly along a tangential curve concave to the west and southwest having a radius of 15.00 feet and a central angle of 35 degrees 05 minutes 48 seconds for 9.19 feet; thence northwesterly and northerly along a reverse curve concave to the northeast and east having a radius of 29.00 feet and a central angle of 35 degrees 05 minutes 48 seconds for 17.76 feet; thence North 00 degrees 17 minutes 33 seconds West, tangent to said reverse curve, for 215.06 feet to the northerly line of said TRACT B; thence North 89 degrees 48 minutes 54 seconds East along said northerly line for 24.00 feet; thence South 00 degrees 17 minutes 33 seconds East for 215.95 feet; thence South 21 degrees 32 minutes 03 seconds East for 22.08 feet; thence South 00 degrees 17 minu- tes 33 seconds East for 195.44 feet; thence South 14 degrees 42 minutes 27 seconds West for 50.18 feet; thence South 00 degrees 17 minutes 33 seconds East for 72.84 feet to the southerly line of said TRACT B; thence South 89 degrees 45 minutes 00 seconds West along said southerly line for 38.00 feet to the point of beginning. EXHIBIT III (PASSENGER AREAS) All those parts of TRACT B, REGISTERED LAND SURVEY N0. 1366 and TRACT C, REGISTERED LAND SURVEY N0. 1171, files of the Registrar of Titles, Hennepin County, Minnesota; described as follows: AND: Commencing at the southwest corner of said TRACT B, REGISTERED LAND SURVEY N0. 1366; thence North 89 degrees 45 minutes 00 seconds East, assumed bearing, along the southerly line of said TRACT B for 596.06 feet; thence North 00 degrees 17 minutes 33 seconds West for 23.72 feet; thence North 14 degrees 42 minutes 27 seconds East for 98.53 feet; thence northerly along a tangential curve, concave to the west, having a radius of 43.64 and a central angle of 15 degrees 00 minutes 00 seconds for 11.42 feet; thence North 00 degrees 17 minutes 33 seconds East for 17.00 feet to the actual point of beginning; thence continuing North 00 degrees 17 minutes 33 seconds West for 50.00 feet; thence South 89 degrees 42 minutes 27 seconds West for 14.00 feet; thence South 00 degrees 17 minutes 33 seconds East for 50.00 feet; thence North 89 degrees 42 minutes 27 seconds East for 14.00 feet to the point of beginning. Commencing at the southwest corner of said TRACT B, REGISTERED LAND SURVEY N0. 1366; thence North 89 degrees 45 minutes 00 seconds East, assumed bearing,along the southerly line of said TRACT B for 624.06 feet; thence North 00 degrees 17 minutes 33 seconds West for 72.84 feet; thence North 14 degrees 42 minutes 27 seconds East for 50.18 feet; thence North 00 degrees 17 minutes 33 seconds west for 71.90 feet to the actual point of beginning; thence continuing North 00 degrees 17 minutes 33 seconds West for 50.00 feet; thence North 89 degrees 42 minutes 27 seconds East for 10.00 feet; thence South 00 degrees 17 minutes 33 seconds East for 50.00 feet; thence South 89 degrees 42 minutes 27 seconds West for 10.00 feet to the point of beginning. a 1 EXHIBIT C (PLANS AND SPECIFICATIONS FOR TRANSIT EASEMENT AND PASSENGER AREA) Plans and specifications for the Galleria expansion prepared by HRMA, Heise, Reinen, Macrae, Associates and dated July 26, 1990, including: AO.1 TITLE SHEET CIVIL Cl EXISTING CONDITIONS/REMOVALS WEST 1/2 C2 EXISTING CONDITIONS/MSMOVALS EAST 1/2 C3 SITE LAYOUT PLAN WEST 1/2 C4 SITE LAYOUT PLAN EAST 1/2 CS PARKING LAYOUT PLAN WEST 1/2 C6 PARKING LAYOUT PLAN EAST 1/2 C7 GRADING, DRAINAGE, AND EROSION CONTROL A2.6 WEST 1/2 CS GRADING, DRAINAGE, AND EROSION CONTROL A2.8 EAST 1/2 C9 UTILITIES WEST 1/2 CIO UTILITIES EAST 1/2 C11 CIVIL DETAILS C12 CIVIL DETAILS ARCHITECTURAL A1.1 LANDSCAPE PLANS A1.2 LANDSCAPE PLANS A2.1 REFERENCE PLAN A2.2 LOWER LEVEL FLOOR PLAN - ZONE 1 A2.3 LOWER LEVEL FLOOR PLAN - ZONE 2 A2.4 LOWER LEVEL FLOOR PLAN - ZONE 3 A2.5 UPPER LEVEL FLOOR PLAN - ZONE 1 A2.6 UPPER LEVEL FLOOR PLAN - ZONE 2 A2.7 UPPER LEVEL FLOOR PLAN - ZONE 3 A2.8 ROOF PLAN A3.1 EXTERIOR ELEVATIONS /BUILDING SECTIONS A3.2 EXTERIOR ELEVATIONS /BUILDING SECTIONS A3.3 EXTERIOR ELEVATIONS /BUILDING SECTIONS A3.4 EXTERIOR ELEVATIONS /BUILDING SECTIONS A4.1 ENLARGED FLOOR PLANS A4.2 ENLARGED FLOOR PLANS A4.3 - ENLARGED FLOOR PLANS A4.4 ENLARGED FLOOR PLANS A4.5 ENLARGED FLOOR PLANS A4.6 ENLARGED FLOOR PLANS /EXISTING TOILET ROOM PLANS A5.1 INTERIOR ELEVATIONS A.5.2 ATRIUM SECTIONS A5.3 ATRIUM SECTIONS I *t Z PAGE 2 A6.1 REFLECTED CEILING PLANS - ZONE 2 LOWER A6.2 REFLECTED CEILING PLANS - ZONE 3 LOWER A6.3 REFLECTED CEILING PLANS - ZONE 1 UPPER A6.4 REFLECTED CEILING PLANS - ZONE 2 UPPER A6.5 REFLECTED CEILING PLANS - ZONE 3 UPPER A6.6 ENLARGED REFLECTED CEILING PLANS A7.1 ELEVATOR & STAIR SECTIONS A7.2 ELEVATOR & STAIR SECTIONS A8.1 WALL SECTIONS A8.2 WALL SECTIONS A8.3 WALL SECTIONS A8.4 WALL SECTIONS A8.5 WALL SECTIONS A9.1 FRAME ELEVATIONS 4 1 EXHIBIT D (PARKING AGREEMENT) AGREEMENT (Conditions to Parking Variance) THIS AGREEMENT, made and entered into this day of W - , 1990, by and between GABBERT AND GABBERT COMPANY, a Minnesota limited partnership ( "Owner ") and CITY OF EDINA, a Minnesota municipal corporation ( "City "); WHEREAS, Owner is the fee owner of certain real property ( "Property ") located in the City of Edina, County of Hennepin, Minnesota, legally described in Exhibit 1 attached hereto and hereby made a part hereof; and WHEREAS, there is presently constructed on the property a shopping center and three commercial buildings and parking to be used in connection with said buildings; and WHEREAS, Owner proposes to demolish some of the existing improvements and to construct upon the Property new improvements, and parking to be used in connection with the remaining existing and new improvements, all as shown on the Final Development Plan approved by the City Council on April 16, 1990, and designated as P -90-3 (said remaining and new improvements being hereinafter called the "Improvements "); and WHEREAS, there has been submitted to the City a parking plan ( "Plan "), which Plan is on file with the City Planner of the City, is labeled "Galleria III Proof of Parking," is comprised of Sheets 5W and 5E, is dated March 15, 1990, and was prepared by BRW, Inc., and which Plan provides for one thousand eight hundred thirteen (1,813) parking spaces upon the Property, and which Plan meets the requirements of the applicable City ordinances except for a building setback variance of 10 feet (from 50 feet to 40 feet) along West 69th Street; and WHEREAS, Owner is of the opinion that not all of the parking spaces, as shown on the Plan, are required for the efficient and proper use and operation of the Improvements, and has requested the City a variance allowing the construction only of one thousand six hundred eighty -three (1,683) parking spaces rather than the one thousand seven hundred ninety -eight (1,798) required by the City ordinances, and a variance allowing the building setbacks as shown in the Final Development Plan rather than the greater setbacks required by City ordinances; and WHEREAS, the City did, on April 16, 1990, in Case No. P -90 -3, grant the requested variances because strict enforcement of the City ordinances would, in this .? case, cause undue hardship because of circumstances unique to the Property, and the grant of such variances 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 variances 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 variances, 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 variances from its applicable ordinances whereby there need not now be constructed on the Property the number of parking spaces which are now required by City ordinances, subject, however, to the following terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole discretion, that additional parking spaces are required on the Property, then Owner, at its sole cost and expense, shall 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. 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; 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. The additional parking spaces shall be constructed pursuant to the following procedures: (a) The City Manager and the City Planner shall give written notice to Owner and to the then mortgagees of record holding a first lien on all or any part of the Property (the "mortgagees ") 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 7 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 construct such additional parking spaces pursuant to the Plan. (b) 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 unavailability 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 thereafter. The City shall be the sole judge of whether Owner is using due diligence in completing such construction. 3. In the event that Owner fails or refuses to comply with all of the obligations of Owner under this Agreement, or violates any of the provisions hereof, the City shall send Owner and the then mortgagees written notice of Owner's failure, refusal or violation. If such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Owner and mortgagees, mortgagees may, but shall not be obligated to, perform Owner's obligations hereunder. The City agrees to accept such performance by mortgagees as performance by Owner, provided that mortgagees comply with the following requirements: (a) Mortgagees shall (i) either begin construction of the additional parking spaces which Owner was to have constructed 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 mortgagees were given such notice; and (ii) if mortgagees decide to acquire possession of the Property by mortgage foreclosure, commence construction by the earlier of the following dates: (1) the date which is sixty (60) days after the date when mortgagees acquire possession of the Property; and (2) K the date which is eighteen (18) months after the date when mortgagees were given notice from the City of Owner's failure, refusal or violation. (b) Once begun, mortgagee shall complete construction with all due diligence. The City shall be the sole judge of whether mortgagees are using due diligence in completing such construction. The City agrees not to exercise any of the remedies available to it for Owner's failure, refusal or violation unless and until mortgagees fail to comply with all of the requirements for mortgagees' undertaking in this Paragraph 3. 4. If Owner fails to commence the construction of additional parking spaces pursuant to Subparagraph 2(b) hereof, and if mortgagees satisfy the requirement of Subparagraph 3(a)(i) hereof, then the City agrees to permit mortgagees to submit a new or revised parking plan for review and approval by the City, and if approved by the City, the additional parking spaces may be constructed pursuant to the new or revised plan; provided, however, that the submission of such plan shall in no event postpone the date by which mortgagees shall commence construction pursuant to Subparagraph 3(a)(ii) hereof. S. If Owner fails or refuses to comply with all of the obligations and requirements of Owner in Paragraphs 2 and 3 hereof, and if mortgagees fail to comply with all of the requirements set forth in Paragraph 3 hereof for mortgagees' 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 (but not the building setback variance) described in this Agreement in which case Owner shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan and all applicable ordinances of the City, (b) enter upon the Property by itself or through its agents, employees or contractors, and with such personnel, equipment and materials as the City deems necessary for the purposes of performing the obligations of Owner hereunder which Owner and mortgagees have failed or refused to perform or, at the City's discretion, for the purpose of constructing some or all of the parking spaces shown on the pursuant to the Plan, whether or not then required hereunder to be constructed, without liability or obligation of any kind to Owner, or any owner or occupant of the Property, for trespass or damage to the Property, the Improvements, or other property or improvements thereon, or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Owner, and if any person makes any claim against City, or its officers, agents, 4 � f employees, representatives or contractors for loss or damage to property or business due to such entry, Owner agrees to hold City, and its officers, agents, employees, representatives or contractors harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City, upon demand of City, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by City, or its officers, agents, employees, representatives or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing hold harmless and indemnity shall not apply to intentional wrongful acts or negligence of the City, or its officers, agents, employees, representatives or contractors. (c) obtain enforcement of this Agreement against Owner by court order for mandatory injunction or other appropriate relief; and (d) revoke, or 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 additions to or replacements of any or all of the Improvements, until such failure or refusal ends and the obligations of Owner hereunder 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 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 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 twelve percent (12 %) per annum from the dates incurred by the City until paid. Owner also agrees to pay all costs of collection of any monies, including interest, due to the City from Owner pursuant hereto, again including attorneys' fees and whether suit be brought or not, with interest at twelve percent (12 %) per annum on such costs of collection from the dates incurred until paid. 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 5 v1 or which it shall be held invalid or unenforceable shall not be affected thereby, and this Agreement, and all of 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 in accordance with this Agreement 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, sent by registered or certified mail, postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Owner: 3510 West 70th Street Edina, Minnesota 55435 Attention: Warren Beck To first lien mort- To their address shown of record, gagees of record: to their Minnesota address, or to the address given to the City, as selected by the City. Notices shall be effective upon personal delivery or, if mailed, one business day after mailing or depositing in the above manner. The address of City and Owner may be changed by either party upon notice to the other party given as herein provided ten (10) days prior to the effective date of such change. 8. 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, for any reason, the provisions hereof should be determined by a court of competent jurisdiction, not to be binding upon and fully enforceable against any owner of the Property, the parking variance granted by City in Case No. P -90-3 shall wholly cease and terminate and the Parking on the Property shall be used and usable only in full compliance with all applicable ordinances of the City. 9. The Agreement (Conditions to Parking Variances) between Gabbert and Gabbert Company, a Minnesota limited partnership, and City of Edina, dated April 21, 1980, and filed July 31, 1980, as Document No. 1389800, in the office of the Registrar of Titles, Hennepin County, Minnesota, shall be released and terminated in its entirety upon the filing of this Agreement in the office of the Registrar of Titles, Hennepin County, Minnesota. R 10. Each party hereby agrees that upon written request, from time to time, of the other party, it will issue an Estoppel Certificate stating: (a) whether the party to whom the request has been directed knows of any default by the requesting party under this Agreement, and if there are known defaults, specifying the nature thereof; (b) whether, to the party's knowledge, this Agreement has been modified or amended in any way (and if it has, then stating the nature thereof); (c) that, to the party's knowledge, this Agreement as of that date is in full force and effect, or if not, so stating; (d) the nature and extend of any setoffs, claims or defenses then being asserted or otherwise known by the party against enforcement of such party's obligations hereunder; and (e) such other matters as may reasonably be required by the requesting party- Such statement shall act as a waiver of any claim by the party furnishing it to the extend such claim is based upon facts contrary to those asserted in the statement and to the extend the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts contrary to those contained in the statement, and who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such party to disclose correct and /or relevant information. 11. Owner, and any successor owner of all or any part of the Property, shall be liable under this Agreement only for obligations and liabilities which accrue while the record owner of all or any part of the Property, and once Owner, and each such successor owner, is no longer the record owner of any part of the Property, the liability hereunder of Owner, and such successor owner, shall cease and terminate except for obligations which accrued during such record ownership. The foregoing provision shall not prevent exercise by City of the remedies at paragraphs 5(a), 5(b), 5(c) or 5(d) hereof as to the record owners of the Property, even if for the failure of a then prior record owner of all or any part of the Property. If there is, at any time, more than one record owner of the Property, their liability hereunder shall be joint and several. In addition, the foregoing notwithstanding, if the Property is hereafter divided into separate parcels with different owners, then the obligations hereunder of Owner shall apply only to the owners of the separate parcel or parcels on which the additional parking spaces are to be constructed, and if there be more than one such owner, their liability hereunder shall be joint and several. 7 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By A General Partner CITY OF EDINA By Mayor And Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of .19 , by . a general partner of Gabbert and Gabbert Company, a Minnesota limited partnership, on behalf of the partnership. E:? Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of .19 , by and , the Mayor and Manager respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. D Notary Public i R •f, CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests in the Property as described in the Agreement (Conditions to Parking Variance) to which this Consent and Subordination is attached: All in the office of the Registrar of Titles, Hennepin County, Minnesota; does hereby agree and consent to all of the terms and conditions of said Agreement, and agrees that the liens and interests above described and all renewals, modifications and extensions thereof, are and shall be subordinate to the rights granted to, and created in favor of, City by said Agreement, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Agreement, in the event it becomes the owner of the Property. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY/ Its u ene R. Ska s, V e President VIA11 Its Patricia A. $emmermann, Ass''t Secretary STATE OF WISCONSIN ) ) ss. COUNTY OF MILWAUKEE ) The foregoing Consent and Subordination was acknowledged before me this 3rd da of October 19901 b Eugene R. Skaggs and Patricia A. Zimmermann the rce resdn and S respectively, of THE NORTHWESTERN MUTUAL LIFE INSURANt COMPANY, a Wiscon corporation, on behalf of said corporation. / 7 11 § BERNICE BUSH NOTARY PUBLIC* § ST /'s TE OF WISCONSIN Notary Public My commission expires January 26, 1992 10 EXHIBIT 1 (Property) Tracts A, C and D, Registered Land Survey No. 1171, Files of the Registrar of Titles, Hennepin County, State of Minnesota. Tracts A and B, Registered Land Survey No. 1355, Files of the Registrar of Titles, Hennepin County, State of Minnesota, except that part of said Tract B embraced within Registered Land Survey No. 1466. Tracts A, B and C, Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, State of Minnesota. 6, V + EXHIBIT E P- •. •. . THIS INSTRUMENT, Made this 7 day of 0100 bZf ,19 0 by and between GABBERT AND GABBERT COMPANY, a Minnesota limited partnership, of the County of Hennepin and State of Minnesota ( "Grantor "), and the CITY OF EDINA, a municipal corporation organized under the laws of the State of Minnesota ( "City "); WITNESSETH, That Grantor, in consideration of One and no /100 ($1.00) Dollars and other good and valuable consideration to it in hand paid by the City, the receipt and sufficiency of which is hereby acknowledged, does Grant, Bargain, Sell, Convey and Warrant to the City in perpetuity for storm sewer purposes, including the right to enter with such personnel, materials and equipment as City deems necessary for the purpose of constructing, maintaining, altering, repairing and reconstructing a storm sewer system, including pipes, manholes and related equipment and materials, in, on, over, under and across the following described property (the "Easement Area ") situate in the County of Hennepin and State of Minnesota, to -wit: The Southerly 20.00 feet of the Easterly 20.00 feet of the Westerly 620.00 feet of Tract B, Registered Land Survey No. 1366, Files of the Registrar of Titles, Hennepin County, Minnesota. It is understood and agreed by City and Grantor, that Grantor, its successors and assigns, shall do all repair and maintenance of that part of said storm sewer system which is in, on, over, under or across the Easement Area, which is necessary to keep such part of said storm sewer system in good repair and condition. However, if Grantor, its successors and assigns, fails to do such repair and maintenance, the City, at its option, may enter upon the Easement Area by itself or through its agents, employees or contractors, and with such personnel, materials and equipment as the City deems necessary for the purpose of doing such repair or maintenance. The City, and its officers, agents, employees, representatives and contractors shall have no obligation or liability to Grantor, its successors or assigns, or any owner or occupant of the Easement Area for trespass or damage to the Easement Area or any improvements thereon, for loss of business or business interruption or any other cause, all of which liability and obligation is hereby waived by Grantor, for itself and its successors and assigns, and if any person makes any claim against City, or its officers, agents, employees, representatives or contractors for loss or damage to property or business due to such entry, Owner agrees to hold the City and its officers, agents, employees, representatives and contractors harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City, upon demand of the City, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by the City, or its officers, agents, employees, representatives or contractors, with interest at 12% per annum N •> from the date demanded until paid; provided, however, that the foregoing hold harmless and indemnity shall not apply to intentional wrongful acts or negligence of the City, or its officers, agents, employees, representatives or contractors. The City shall also have available all other remedies then allowed at law or in equity, including mandatory injunction, to enforce the obligations and duties of Grantor herein. All of the remedies available to City, shall be usable and enforceable separately or concurrently, and the use of one remedy shall not waive or preclude the use of one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy shall not preclude the City from thereafter exercising any of its remedies for the same or subsequent failure or refusal. Grantor agrees to pay to the City any and all costs and expenses incurred by the City in enforcing the terms and conditions of this Easement by use of the remedies set out herein or by any other remedy or means available at law or in equity, including attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at twelve percent (12 %) per annum from the dates incurred until paid. Grantor, and any successor owner of all or any part of the Easement Area, shall be liable under this Easement only for obligations and liabilities which accrue while the record owner of all or any part of the Easement Area, and once Grantor, and each such successor owner, is no longer the record owner of any part of the Easement Area, the liability hereunder of Grantor, and such successor owner, shall cease and terminate except for obligations which accrued during such record ownership. The foregoing provision shall not prevent exercise by City of the right to enter upon the Easement Area for repair and maintenance as above provided, as to the then record owners of the Easement Area, even if for the failure of a then prior record owner of all or any part of the Easement Area. If there is, at any time, more than one record owner of the Easement Area, their liability hereunder shall be joint and several. The easement hereby granted, and the provisions hereof, shall run with title to the Easement Area and shall be binding upon and inure to the benefit of Grantor and City, and their respective successors and assigns. 2 4f 1• IN WITNESS WHEREOF, Grantor and City have caused this Easement to be duly executed as of the day and year first above written. CITY OF EDINA By Its Mayor And Its Manager GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By A General Partner STATE OF ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 19___, by and , the Mayor and Manager, respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. Notary Public 1 �) STATE OF ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of .19 , by , a general partner of Gabbert and Gabbert Company, a Minnesota limited partnership, on behalf of the partnership. 4 Notary Public .l',:0 CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests in the easement area as described in the Easement for Storm Sewer to which this Consent and Subordination is attached: All in the office of the Registrar of Titles, Hennepin County, Minnesota; does hereby agree and consent to all of the terms and conditions of said Easement, and agrees that the liens and interests above described and all renewals, modifications and extensions thereof, are and shall be subordinate to the rights granted to, and created in favor of, City by said Easement, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Easement, in the event it becomes the owner of the Easement Area as described in said Easement. STATE OF WISCONSIN COUNTY OF MILWAUKEE THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPAVY ) ss. ) ItsPatricia ecretary The foregoing Consent and Subordination was acknowledged before me this 3rd day of October 19 90,by Eugene R. Skaggs d Patricia A. Zimmermann the Vice Presi ent and ss ec e respectively, of THE NORTHWESTERN MUTUAL SURANCE a Wisconsin corporation, on behalf of the corpor n, § BERNICE BUSE NOTARY PUBLIC S7 ATE OF WISCONSIN 5 --,-e- --- . an Kotary Public ' My commission expires January 26, 1992 g!m EASEMENT FOR STORM SEWER THIS INSTRUMENT, Made this day of (�)ChbtJr 19q D , by and between GABBERT AND GABBERT COMPANY, a Minnesota limited partnership, of the County of Hennepin and State of Minnesota ( "Grantor "), and the CITY OF EDINA, a municipal corporation organized under the laws of the State of Minnesota ( "City "); WrINESSETH, That Grantor, in consideration of One and no /100 ($1.00) Dollars and other good and valuable consideration to it in hand paid by the City, the receipt and sufficiency of which is hereby acknowledged, does Grant, Bargain, Sell, Convey and Warrant to the City in perpetuity for storm sewer purposes, including the right to enter with such personnel, materials and equipment as City deems necessary for the purpose of constructing, maintaining, altering, repairing and reconstructing a storm sewer system, including pipes, manholes and related equipment and materials, in, on, over, under and across the following described property (the "Easement Area ") situate in the County of Hennepin and State of Minnesota, to-wit: The Southerly 20.00 feet of the Easterly 20.00 feet of the Westerly 620.00 feet of Tract B, Registered Land Survey No. 1366, Files of the Registrar of Titles, Hennepin County, Minnesota. It is understood and agreed by City and Grantor, that Grantor, its successors and assigns, shall do all repair and maintenance of that part of said storm sewer system which is in, on, over, under or across the Easement Area, which is necessary to keep such part of said storm sewer system in good repair and condition. However, if Grantor, its successors and assigns, fails to do such repair and maintenance, the City, at its option, may enter upon the Easement Area by itself or through its agents, employees or contractors, and with such personnel, materials and equipment as the City deems necessary for the purpose of doing such repair or maintenance. The City, and its officers, agents, employees, representatives and contractors shall have no obligation or liability to Grantor, its successors or assigns, or any owner or occupant of the Easement Area for trespass or damage to the Easement,Area or any improvements thereon, for loss of business or business interruption or any other cause, all of which liability and obligation is hereby waived by Grantor, for itself and its successors and assigns, and if any person makes any claim against City, or its officers, agents, employees, representatives or contractors for loss or damage to property or business due to such entry, Owner agrees to hold the City and its officers, agents, employees, representatives and contractors harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City, upon demand of the City, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by the City, or its officers, agents, employees, representatives or contractors, with interest at 12% per annum from the date demanded until paid; provided, however, that the foregoing hold harmless and indemnity shall not apply to intentional wrongful acts or negligence of the City, or its officers, agents, employees, representatives or contractors. The City shall also have available all other remedies then allowed at law or in equity, including mandatory injunction, to enforce the obligations and duties of Grantor herein. All of the remedies available to City, shall be usable and enforceable separately or concurrently, and the use of one remedy shall not waive or preclude the use of one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy shall not preclude the City from thereafter exercising any of its remedies for the same or subsequent failure or refusal. Grantor agrees to pay to the City any and all costs and expenses incurred by the City in enforcing the terms and conditions of this Easement by use of the remedies set out herein or by any other remedy or means available at law or in equity, including attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at twelve percent (12 %) per annum from the dates incurred until paid. Grantor, and any successor owner of all or any part of the Easement Area, shall be liable under this Easement only for obligations and liabilities which accrue while the record owner of all or any part of the Easement Area, and once Grantor, and each such successor owner, is no longer the record owner of any part of the Easement Area, the liability hereunder of Grantor, and such successor owner, shall cease and terminate except for obligations which accrued during such record ownership. The foregoing provision shall not prevent exercise by City of the right to enter upon the Easement Area for repair and maintenance as above provided, as to the then record owners of the Easement Area, even if for the failure of a then prior record owner of all or any part of the Easement Area. If there is, at any time, more than one record owner of the Easement Area, their liability hereunder shall be joint and several. The easement hereby granted, and the provisions hereof, shall run with title to the Easement Area and shall be binding upon and inure to the benefit of Grantor and City, and their respective successors and assigns. 2 IN WITNESS WHEREOF, Grantor and City have caused this Easement to be duly executed as of the day and year first above written. CITY OF EDINA Its Manager GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By A General Partner STATE OF i, lTwQ � ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 193 by and the Mayor and Manager, respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. raAJ Notary Public ,:: •. �:•� �;;•t CANDIC=FIEDLER L. NOTARY PUHENNEMY Commissio 3 STATE OF mN"eSo; i ) ) ss. COUNTY OF qe h►n� � /t� ) The foregoing instrument was acknowlec 19____, by 6e of Gabbert and Gabbert Company, a Minnesota partnership. 5 ` 4 [ before me this day of a general partner Red partnership, on behalf of the limes CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests in the easement area as described in the Easement for Storm Sewer to which this Consent and Subordination is attached: All in the office of the Registrar of Titles, Hennepin County, Minnesota; does hereby agree and consent to all of the terms and conditions of said Easement, and agrees that the liens and interests above described azd all renewals, modifications and extensions thereof, are and shall be subordinate to the rights granted to, and created in favor of, City by said Easement, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Easement, in the event it becomes the owner of the Easement Area as described in said Easement. STATE OF WISCONSIN COUNTY OF MILWAUKEE THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY y_ I ) ss. ) Its Patricia A- 1,Ummermann, Asst Secretary The foregoing Consent and Subordination was acknowledged before me this 3rd day of October , 19 90, by Eugene R. Skaggs and Patricia A. Zimmermann the 'Vice President and t ecre ary respectively, of THE NORTHWESTERN MUTUAL FE INWRANCE COMP a Wisconsin corporation, on behalf of the corpora 'on. BERNICE BUSE otary Public § NOTARY PUBLIC My commission expires January 26, .1992 STATE OF WISCONSIN epa�iaOr.O • 5 O 2M _Ilnvlk-ol VLl2D-5WGE 5 �lq Sig COPY. i-.ENNEP,'N CERTMED FILL--, CA: z REGISTRnR OF TITLEq By - DEPUTY V v . r TRANSIT EASEMENT THIS AGREEMENT, made as of this 1 day of 1990, by GABBERT AND GABBERT COMPANY, a Minnesota limited partnership (the "Owner ") and CITY OF EDINA (the "City "), a Minnesota municipal corporation. WITNESSETH: WHEREAS, Owner is the owner of certain property located in the City of Edina, Hennepin County, Minnesota, described on Exhibit I attached hereto and hereby made a part hereof (the "Owner Parcel "); and WHEREAS, the City desires to obtain certain easements over and across the Owner Parcel for use by mass transit vehicles (the "Vehicles ") to be owned or operated by or for the City or the Housing and Redevelopment Authority of Edina, Minnesota, a body politic and corporate under the laws of the State of Minnesota (the "HRA "). NOW, THEREFORE, Owner and City for One Dollar ($1.00) and other good and valuable consideration to each in hand paid, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, do hereby agree as follows: 1. Grant of Easements. Owner hereby grants and warrants to the City without cost or charge to the City or the HRA, a non - exclusive easement (the "Transit Easement ") over and across that portion of the Owner Parcel described in Exhibit II attached hereto and hereby made a part hereof, for use by said Vehicles for passage through the Owner Parcel and from and to the public streets adjoining the Owner Parcel, and for loading and unloading passengers at the Passenger Areas (as defined pursuant to paragraph 2 hereof). 2. Passenger Area. Owner hereby grants and warrants to the City, without cost or charge to the City or the HRA, a non - exclusive easement over and on those portions of the Owner Parcel described in Exhibit III attached hereto and hereby made a part hereof (the 'Passenger Areas ") for use as a place for the gathering of passengers for the Vehicles, and as a place to load and unload such passengers. 3. Traffic Rules; Signs. (a) The Vehicles shall be subject to all rules and regulations established, from time to time, by Owner for the control and regulation of traffic and motor vehicles on the Owner Parcel; but Owner shall Wo impose any rules and regulations on the Vehicles which are mores / PRIOR TAXES pD DEPT. OF PROPERTY PS C RTRpNS r� : fEREDEORD OCT 12 LCOj onerous or restrictive than those imposed generally on other traffic and motor vehicles on the Owner Parcel. (b) The City and HRA may post on the Owner Parcel and the improvements thereon, at their expense, such signs at such locations as they or either of them deem necessary or desirable to advise passengers of the routes and time schedules of the Vehicles, and the location of the Passenger Areas; the location and design of such signs shall be approved by the Owner prior to posting. Owner agrees not to unreasonably withhold or delay such approval. 4. Maintenance. Owner shall do all repair and maintenance, including snow and debris removal, of said Transit Easement and Passenger Areas as shall be necessary to keep them in good repair and condition, and the City and the HRA shall have no obligation of any kind to make or do any such repairs or any such maintenance. 5. Hold Harmless by Owner. The City and the HRA shall have no liability or obligation of any kind for any claim or demand arising out of, or alleged to arise out of, the design, construction, maintenance, repair, reconstruction or replacement or all or any part of such Transit Easement or Passenger Areas, and Owner shall hold the City and the HRA, and their respective officers, agents, employees and representatives, harmless from and indemnified against any loss, cost, damage or expense, including reasonable attorneys' fees, arising out of, or claimed to arise out of, any of the matters above set out in this paragraph, or out of the failure, or alleged failure, of Owner to have fulfilled its obligations as set out in paragraph 4 hereof, or out of the act or neglect, or alleged act or neglect, of Owner, or the tenants of Owner, or their respective officers, agents, employees, representatives, guests or invitees. All such loss, cost, damage and expense shall be paid by Owner within thirty (30) days of demand made by the City or HRA, and if not so paid shall bear interest at 12% per annum from the .date demanded until paid. 6. Hold Harmless By City. The City hereby agrees to hold Owner, and its officers, agents, employees and representatives harmless from and indemnified against any loss, cost, damage or expense, including reasonable attorneys' fees, arising out of the operation of such Vehicles on the Owner's Property, except for such loss, cost, damage, expenses or fees as may arise out of the failure or alleged failure of Owner to have fulfilled its obligations as set out in paragraph 4 hereof, or out of the act or neglect or alleged act or neglect of Owner, or the tenants of Owner, or their respective officers, agents, employees, representatives, guests or invitees. All such loss, cost, damage and expense shall be paid by City or HRA upon demand made by Owner, and if not so paid shall bear interest at 12% per annum from the date demanded until paid. Oa 7. Remedies. (a) If Owner fails to do the repair and maintenance required by paragraph 4 hereof, City or HRA, at their options, may enter upon the Owner Parcel by itself or themselves, or through its or their agents, employees or contractors, and with such personnel, equipment and materials as the City or HRA deems necessary for the purpose of doing such repair or maintenance. The City and HRA, and their respective officers, agents, employees, representatives and contractors shall have no obligation or liability to Owner or any owner or occupant of the Owner Parcel for trespass or damage to the Owner Parcel or any improvements thereon, for loss of business or business interruption or any other cause, all of which liability and obligation is hereby waived by Owner, and if any person makes any claim against City or BRA, or their respective officers, agents, employees, representatives or contractors for loss or damage to property or business due to such entry, Owner agrees to hold the City and HRA, and their respective officers, agents, employees, representatives and contractors harmless from and indemnified against any loss, cost, damage or expense, including attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to City or HRA, upon demand of the City or HRA, as the case may be, any such loss, cost, damage or expense, including attorneys' fees, suffered or incurred by the City or the HRA, or their respective officers, agents, employees, representatives or contractors, with interest at 12% per annum from the date demanded until paid; provided, however, that the foregoing hold harmless and indemnity shall not apply to intentional wrongful acts or negligence of the City or HRA, or their respective officers, agents, employees, representatives or contractors. (b) The City, BRA and Owner shall also have available all other remedies then allowed at law or in equity, including mandatory injunction, to enforce any of the obligations and duties of any party hereto, or to recover damages for default therein. (c) All of the remedies available to City, HRA and Owner shall be usable and enforceable separately or concurrently, and the use of one remedy shall not waive or preclude the use of one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy shall not preclude any party from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Owner agrees to pay to the City and BRA, and the City and HRA agree to pay to Owner, any and all costs and expenses incurred by the other in 3 enforcing this Agreement by use of the remedies set out herein or by other remedy or means available at law or in equity, including attorneys' fees, whether suit be brought or not, and with interest on all such costs and expenses at twelve percent (12 %) per annum from the dates incurred until paid. (d) Owner and City also agree to pay all costs of collection of any monies, including interest, due from or by it pursuant hereto, again including attorneys' fees and whether suit be brought or not, with interest at twelve percent (12 %) per annum on such costs of collection from the dates incurred until paid. 8. Notice. Any notice, report or demand required or permitted to be given by any party hereof upon or to any other party hereto shall be in writing and shall be deemed given in accordance with this Agreement 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, sent by registered or certified mail, postage prepaid thereon, addressed to the parties at the following addresses: If to Owner: 3510 West 70th Street Edina, Minnesota 55435 Attn: Warren Beck If to City or HRA: City of Edina 4801 West 50th Street Edina, Minnesota 55424 Attn: City Manager Notices shall be effective upon personal delivery, or if mailed, one business day after mailing or depositing in the above manner. Any party may change its address for the service of notice by giving written notice of such change to the other party, in the manner above specified, ten days prior to the effective date of such change. 9. No Gift or Dedication. Nothing herein contained shall be deemed to be a gift or dedication of the easements hereby created, or any portion thereof, to the general public, even though some of the easements hereby created may be used for or by the general public. 10. Amendments. This Agreement may be amended by, and only by, a written agreement executed by the Owner and by the City. All amendments to be effective, once duly signed, shall be recorded or filed in Hennepin County, Minnesota, in the same office in which this agreement is recorded or filed to give constructive notice thereof. 11. Run With Title; Successors and Assigns. The easements hereby granted, declared and created, and the provisions hereof, shall run with the Owner Parcel and every part thereof without regard to technical classification and designation, legal or otherwise, and will be binding upon, to the fullest extent permitted by law and in equity, and shall inure to the benefit of, and be enforceable by, the parties hereto, and the HRA, and their respective successors and assigns, and all present and future owners of the Owner Parcel. 12. Estoppel Certificate. Each party hereby agrees that upon written request, from time to time, of the other party, it will issue an Estoppel Certificate stating: (a) whether the party to whom the request has been directed knows of any default by the requesting party under this Agreement, and if there are known defaults, specifying the nature thereof; (b) whether, to the party's knowledge, this Agreement has been modified or amended in any way (and if it has, then stating the nature thereof); (c) that, to the party's knowledge, this Agreement as of that date is in full force and effect, or if not, so stating; (d) the nature and extent of any setoffs, claims or defenses then being asserted or otherwise known by the party against enforcement of such party's obligations hereunder; and (e) such other matters as may reasonably be required by the requesting parry. Such statement shall act as a waiver of any claim by the party furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts contrary to those contained in the statement, and who has acted in reasonable reliance upon the statement; however, such statement shall in no event subject the party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such party to disclose correct and /or relevant information. 13. Liability Limitation. Owner, and every successor owner of all or any part of the Transit Easement area or Passenger Areas, shall be liable under this Agreement only for obligations and liabilities which accrue while a record owner of 5 all or any part of the Transit Easement area or the Passenger Areas, and once Owner, and each successor owner, is no longer the record owner of any part of the Transit Easement Area and Passenger Areas, the liability hereunder of Owner and such successor owner shall cease and terminate except for obligations which accrued, during such record ownership. The foregoing provision shall not prevent exercise of the remedy at paragraphs 7(a) or 7(b) hereof (except damages) as to the then record owners of the Transit Easement area and Passenger Areas even if for the failure of a then prior record owner of all or any part of the Transit Easement area or Passenger Areas. If there is, at any time, more than one record owner of the Transit Easement area or Passenger Areas, their liability hereunder shall be joint and several. 14. Construction and Assessment. (a) By paragraph 2(b) of a Development Agreement ( "Development Agreement ") dated as of ' 1990, between Owner and the City, Owner has agreed to construct, without cost or charge to the City, portions of the Transit Easement area and all of the Passenger Areas, all as provided in the Development Agreement. Said Development Agreement also provides that if such construction is not completed by December 31, 1992, then the City may levy an assessment against the Owner Parcel for certain costs incurred and paid by the City pursuant to the Development Agreement without notice or hearing, and Owner has agreed not to contest such assessment and waives all objections to the assessment, including all rights of appeal from such levy. Said Development Agreement also provides that if any installment of such assessment is not paid when due, the Owner Parcel may be sold and conveyed in the same manner, and with the same effect, as lands forfeited for nonpayment of real estate taxes are sold and conveyed. This reference to the Development Agreement is made to put future owners and encumbrancers on notice of such assessment right of the City. (b) Owner also agrees that if, for any reason, the portions of the Transit Easement area, and the Passenger Areas, are not constructed by Owner pursuant to, and as required by, paragraph 2(b) of the Development Agreement, then the City and the HRA shall have the same rights to enter upon the Owner Parcel, by itself or themselves, or through its or their agents, employees or contractors, as are granted to City and HRA by said paragraph 7(a) hereof, and the provisions of paragraph 7(a) hereof shall apply, but, in this case, for the purpose of constructing the portions of the Transit Easement area, and Passenger Areas (or so much or such parts thereof as the City or HRA determines to construct), as are not constructed by Owner pursuant to, and as required by, paragraph 2(b) of the Development Agreement; except, 0 however, that the cost of such construction shall not be charged to or be an obligation of Owner. (c) Owner also agrees, upon request of the City, and without cost or charge to City or the HRA, to construct the curb cut on the South side of West 69th Street giving access to the Transit Easement area on the Owner Parcel, remove the sidewalk constructed pursuant to part (y) of paragraph 2(b) of the Development Agreement, construct the transit drive aisle along the Transit Easement area from West 69th Street south to the parking lot area on the Owner Parcel in substantial compliance with the plans and specifications for the Transit Easement area as set out in the Development Agreement, and, as a part of completing such drive aisle, remove the sidewalk along the south side of West 69th Street within the Transit Easement area and reconstruct such portion of said sidewalk in substantial compliance with the plans and specifications for the Transit Easement area itself. It is understood that City does not intent to give such notice until such time'as it anticipates that the Transit Easement area will be needed for actual use by the transit system to be owned or operated by the City or the HRA. Said notice from the City shall set forth a date for completion of the work to be done by Developer pursuant to this paragraph (c), which shall not be less than ninety (90) days after the date of the notice. If, for any reason, Developer does not complete such work by such completion date, the City may exercise the same remedies as are given to it by paragraph 7 hereof for a failure by Owner to repair and maintain the Transit Easement and Passenger Areas. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of the date and year first above written. GABBERT AND GABBERT COMPANY, a Minnesota limited partnership By A General Partner CITY OF EDMA By m 7 STATE OF MINNESOTA ) Cec we-- ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of C) c--ko b --y, ,19'1 °, by W N 2 y N L- A e c -K- _, a General Partner of Gabbert and Gabbert Company, a Minnesota limited partnership, on behalf of the partnership. Notary Public STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) FV-� DIANA L. GllBEFiTSON NOTARY PUBLIC - MINNE>�J� CARVER �W NAr °" The foregoing instrument was acknowle ged before me this 8� day of �Ce^, 1920 by_r�� cS �C n Zk) and the Mayor and Manager respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. THIS INSTRUMENT DRAFTED BY: DORSEY & WHITNEY (TSE) 2200 First Bank Place East Minneapolis, Minnesota 55402 1.1 .. •;«����;;.. CANDICE L. FIEDLER .NOTARY PUBLIC - MiNNESOTA IHENNEPIN COUNTY My Commission Expire : C c, 9, 1991 CONSENT AND SUBORDINATION The undersigned, being the holder of the following described liens on and interests in the Owner Parcel as described in the Transit Agreement to which this Consent and Subordination is attached: All in the office of the Registrar of Titles, Hennepin County, Minnesota; does hereby agree and consent to all of the terms and conditions of the Transit Easement to which this Consent and Subordination is attached, and agrees that the liens and interests above described and all renewals, modifications and extensions thereof, are and shall be subordinate to the easements and interests granted and created by the Transit Easement, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, Owner, as defined in said Transit Agreement, in the event it becomes the owner of the Property. THE NOR rlsy. STATE OF WISCONSIN ) ) ss. COUNTY OF MILWAUKEE ) R. Patricia A. N MUTUAL LIFE ANY aly The foregoing Consent and Subordination was acknowledged before me this 3rd day of October ,1990, by Eugene R. Skaggs and Patricia A. Zimmermann , the Vice President and ASS t 5ecrerarr- respectively, of THE NORTHWESTERN MUTUAL LIFE INSU CE COMPANY, a Wisconsin corporation, on behalf of said corporation. -1 BERNICE BUSE NOTARY PUBLIC E)Q HBff II (TRANSIT EASEMENT) All those parts of TRACT B, REGISTERED LAND SURVEY N0. 1366 and TRACT C, REGISTERED LAND SURVEY N0. 1171, files of the Registrar of Titles, Hennepin County Minnesota; described as follows: Commencing at the southwest corner of said TRACT B, REGISTERED LAND SURVEY N0. 1366; thence North 89 degrees 45 minutes 00 seconds East, assumed bearing, along the southerly line of said TRACT B for 596.06 feet to the actual point of beginning; thence North 00 degrees 17 minutes 33 seconds West for 23.72 feet; thence North 14 degrees 42 minutes 27 seconds East for 98.53 feet; thence northerly along a tangential curve, concave to the west, having a radius of 43.64 feet and a central angle of 15 degrees 00 minutes 00 seconds, for 11.42 feet; thence North 00 degrees 17 minutes 33 seconds West for 192.75 feet; thence northerly and northwesterly along a tangential curve concave to the west and southwest having a radius of 15.00 feet and a central angle of 35 degrees 05 minutes 48 seconds for 9.19 feet; thence northwesterly and northerly along a reverse curve concave to the northeast and east having a radius of 29.00 feet and a central angle of 35 degrees 05 minutes 48 seconds for 17.76 feet; thence North 00 degrees 17 minutes 33 seconds West, tangent to said reverse curve, for 215.06 feet to the northerly line of said TRACT B; thence North 89 degrees 48 minutes 54 seconds East along said northerly line for 24.00 feet; thence South 00 degrees 17 minutes 33 seconds East for 215.95 feet; thence South 21 degrees 32 minutes 03 seconds East for 22.08 feet; thence South 00 degrees 17 minu- tes 33 seconds East for 195.44 feet; thence South 14 degrees 42 minutes 27 seconds West for 50.18 feet; thence South 00 degrees 17 minutes 33 seconds East for 72.84 feet to the southerly line of said TRACT 8; thence South 89 degrees 45 minutes 00 seconds West along said southerly line for 38.00 feet to the point of beginning. EXHIBIT III (PASSENGER AREAS) All those parts of TRACT B, REGISTERED LAND SURVEY NO. 1366 and TRACT C, REGISTERED LAND SURVEY NO. 1171, files of the Registrar of Titles, Hennepin County, Minnesota; described as follows: AND: Commencing at the southwest corner of said TRACT B, REGISTERED LAND SURVEY NO. 1366; thence North 89 degrees 45 minutes 00 seconds East, assumed bearing, along the southerly line of said TRACT B for 596.06 feet; thence North 00 degrees 17 minutes 33 seconds West for 23.72 feet; thence North 14 degrees 42 minutes 27 seconds East for 98.53 feet; thence northerly along a tangential curve, concave to the west, having a radius of 43.64 and a central angle of 15 degrees 00 minutes 00 seconds for 11.42 feet; thence North 00 degrees 17 minutes 33 seconds East for 17.00 feet to the actual point of beginning; thence continuing North 00 degrees 17 minutes 33 seconds West for 50.00 feet; thence South 89 degrees 42 minutes 27 seconds West for 14.00 feet; thence South 00 degrees 17 minutes 33 seconds East for 50.00 feet; thence North 89 degrees 42 minutes 27 seconds East for 14.00 feet to the point of beginning. Commencing at the southwest corner of said TRACT B, REGISTERED LAND SURVEY NO. 1366; thence North 89 degrees 45 minutes 00 seconds East, assumed bearing,along the southerly line of said TRACT B for 624.06 feet; thence North 00 degrees 17 minutes 33 seconds West for 72.84 feet; thence North 14 degrees 42 minutes 27 seconds East for 50.18 feet; thence North 00 degrees 17 minutes 33 seconds West for 71.90 feet to the actual point of beginning; thence continuing North 00 degrees 17 minutes 33 seconds West for 50.00 feet; thence North 89 degrees 42 minutes 27 seconds East for 10.00 feet; thence South 00 degrees 17 minutes 33 seconds East for 50.00 feet; thence South 89 degrees 42 minutes 27 seconds West for 10.00 feet to the point of beginning. 3: i F . �+ - - OC, y. t 2130282 t�RL-0 Vol A., 0171 STERID ios COPY, cq Tr - - ri-,ES I 11F 'D HLEDC. OCT 2�� e; .L.. . C� REGISTRAR OF TITLES By ------- - DEPUTY BOX Ie2,I EXHIBIT I (OWNER PARCEL) Tracts A, C and D, Registered Land Survey No. 1171, Files of the Registrar of Titles, Hennepin County, Minnesota. Tracts A and B, Registered Land Survey No. 1366, Files of the Registrar of Titles, Hennepin County, Minnesota, except that part of said Tract B embraced within Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, Minnesota. Tracts A, B and C, Registered Land Survey No. 1466, Files of the Registrar of Titles, Hennepin County, Minnesota.