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HomeMy WebLinkAbout2060KLUISILR' 'VOL j1f PAQE� 7k LD ��� 72 0 6 a OFFICE OF THE REGISUM OF TITLES HENNEPIN COUNTY. MINNESMA CERTIFIED FILED QU KUG I I Wit R L tA 13 OF T I T L Ea BY pigfu)m 4600 Fraol-�� Y .rq - 4 ft .9 r , z. AGRP.P.MRMT (Conditions to Parking Variance; Use of Utility Easement) THIS AGREEMENT, made and entered into this 26th day of July , 1978, by and between CITY OF EDINA, a Minnesota municipal corporation [ "City "], and THE FARMERS AND MECHANICS SAVINGS BANK OF MINNEAPOLIS, a Minnesota cor- poration [ "Bank "], with its main office at 9O South Sixth Street, Minneapolis, Minnesota. WITNESSETH, THAT: WHEREAS, Bank is the owner of the property situated in Edina, Hennepin County, Minnesota, described as follows: All of Lot 4,and the easterly 56.44 feet of Lot 3, Block 2, Southdale Office Park Second Addition, according to the recorded map or plat thereof, Hennepin County, Minnesota [ "Subject Property "]; and WHEREAS, the South 55.97 feet of the Subject Property [ "Easement Area "] is subject to certain utility easements now of record in favor of the City [ "Easements "]; and WHEREAS, the Bank is proposing to convert the present improvements upon the Subject Property into a detached banking facility with four automated drive -in teller lanes on the south side of the present improvements, and in connection with that conversion the Bank desires to construct and maintain certain of its automated teller facilities upon and over the Easement Area and to remove eighteen (18) parking stalls from the Subject Property to accommodate the drive -in teller lanes; and WHEREAS, such.removal would reduce the parking stalls to fewer than the number required by City Ordinance No. 811 [ "Zoning Ordinance "], and such use of the Easement Area is not allowed without the City's consent; and WHEREAS, the Bank has applied to the City for a variance allowing the reduction of parking on the Subject Prop- erty by said 18 parking stalls, and has also requested agree- ment of the City to allow the Bank to construct and maintain certain of said teller facilities upon and over the Easement Area; and WHEREAS, the Board of Appeals and Adjustments of the City [ "Board "], on May 18, 1978 (Case No. B- 78 -15), granted to the Bank a variance allowing reduction of parking on the Subject Property by 18 parking stalls, but subject, however, to the conditions below set out, which variance was granted and such conditions were imposed pursuant to said Zoning Ordinance; and WHEREAS, the City is willing to allow the Bank to reduce said parking and to so use the Easement Area on the terms and conditions hereinafter set out. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements hereinafter set out, and, as to the Bank, in consideration of the variance and the rights in the Easement Area granted to it by the City, the parties hereto do hereby agree as follows: CONDITIONS TO VARIANCE The Bank hereby agrees as follows: I. If the City Manager, in his sole discretion, shall hereafter determine that the lack of the 18 parking stalls on the Subject Property is causing, adding to, or intensifying any parking problems or traffic congestion on the Subject Property, or on the adjoining streets, -2- U then Bank, at its own cost and expense, shall obtain and con- struct a minimum of eighteen (18) additional parking stalls to serve the Subject Property. All such additional parking stalls shall be in a location on the Subject Property, or on other property, and shall be constructed in a manner, that fully complies with all then applicable ordinances of the City, and pursuant to a plan that shall be first reviewed and approved in writing by the City Planning Director. 2. The City Manager shall notify,the Bank of the determination by the City Manager, when made, that the addi- tional parking must be obtained and constructed. Bank shall prepare and submit its plan to the City Planning Director, showing the location and layout of, and manner of construction of, the additional parking within one hundred twenty (120) days after such notice is given, and shall make such changes in its plan as the City Planning Director shall request to conform the plan to applicable ordinances of the City. The Bank shall commence construction of such additional parking stalls within thirty (30) days after the City Planning Director has given his written approval of the Bank's plan, subject to extensions of said period 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 Bank, in which case the 30 -day period shall be ex- tended 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 and as soon as possible thereafter. -3- 3 USE OF EASEMENT AREA 3. The City hereby grants to the Bank the right to construct, maintain, and use automated drive -in teller facili- ties on the Easement Area that shall consist of and be limited to (i) four (4) concrete traffic islands of a maximum size of three (31) feet wide by twenty (201) feet long by six (6 ") inches thick; (ii) four (4) freestanding mechanical tellers; (iii) a canopy over the traffic islands and mechanical tellers, and supported by two (2) frost footings near the southerly mechani- cal teller; (iv) overhead pneumatic tubes installed in said canopy; (v) overhead wiring installed in said canopy; and (vi) bituminous surfacing [all being hereinafter called "Teller Facilities "]. The equipment forming a part of the Teller Facilities shall be contained within an area that has a maxi- mum width of twelve (12') feet and, as to the underground portions thereof, a maximum depth of five (5') feet. 4. The rights hereby granted to Bank are, and always shall be, subject to all rights of the City to occupy, use, maintain, construct, reconstruct, repair, and replace any and all of its pipes, lines, utilities, and other facilities now or hereafter on, over, or under the Easement Area [ "City Facilities "]. The City shall have full access at all times on and over the Easement Area with such personnel and equipment as it deems necessary for the doing of any work it deems necessary to construct, reconstruct., maintain, repair, and replace any or all of the City Facilities [ "City Work "]. The City, in connection with City Work of a nonemergency nature, shall give at least thirty (30) days' notice to the Bank prior to entry by the City upon the Easement Area for the doing of any of the City Work, to allow Bank to protect or remove such of its Teller Facilities as it thinks necessary or desirable. But the City shall have no obligation of any kind to give any notice prior to such entry in cases where any City Work is e deemed by the City to be necessary or desirable due to an emer- gency. The Manager of the City shall determine when and if an emergency exists, and such determination of the Manager shall be conclusive and binding on the parties hereto. However, the failure of the City to give such notice, for any reason or cause, including, without limitaiton, emergencies, shall not negate or detract from any of the rights of the City relative to the Easement Area or Teller Facilities, nor impose any obli- gations or liabilities upon the City, nor relieve the Bank from any of its duties and obligations under this Agreement. 5. Prior to construction or reconstruction of, or making any alterations or additions to, any of the Teller Facil- ities, the Bank shall submit detailed construction drawings [ "Drawings "], in form and substance reasonably acceptable to the City, for written approval by the City. No construction, recon- struction, alterations, or additions shall be made or begun until the City has given its written approval of the Drawings submitted, and once approved, the Teller Facilities shall be constructed, reconstructed, altered, or added to only in strict compliance with the Drawings and in full compliance with all applicable ordinances, statutes, rules, and regulations. 6. The Bank shall use all due care in doing any construction, reconstruction, repair, or alteration of, or additions to, the Teller Facilities [ "Bank Work "] to prevent damage to any of the City Facilities and to prevent interrup- tion of service provided by any of the City Facilities. The Bank agrees to report immediately to the City any damage to or interruption of service provided by any of the City Facilities. 7. Any entry by the City upon the Easement Area for the doing of the City Work shall be done in such a manner as to do as little damage as possible to the Teller Facilities; however, it is specifically understood and agreed that the City shall not be liable for, and Bank hereby waives any claim for, damage or injury to any or all of the Teller Facilities, and -5- for damages due to loss of business or interruption of business, resulting from or caused by the City Work, and whether or not caused by the negligence of City, or any of its contractors, subcontractors, employees, agents, or representatives, in doing the City Work. It 'is also understood and agreed that the City may, if it deems necessary, remove or destroy any or all of the Teller Facilities in connection with the doing of any of the City Work, all without liability or obligation to the Bank, or to any other person having or claiming an interest in all or any of the Teller Facilities, for damage to or destruction of any or all of the Teller Facilities, or for loss of business or interruption of business caused by such removal, damage, or destruction. The Bank agrees that the repair or replacement of any of the Teller Facilities that may be damaged, destroyed, or removed by the City in connection with any City Work shall be done at the sole cost and expense of the Bank and without cost or expense of any kind to the City. 8. The Bank agrees that it will indemnify and hold harmless the City from and against any and all loss, cost, damage, and expense, including reasonable attorneys' fees, resulting from or claimed to result from any of the Bank Work or the location, existence, or use of any of the Teller Facilities, including, without limitation, all costs and expenses incurred (i) in repairing any of the City Facilities damaged by the Bank Work; (ii) as extra cost in doing any of the City Work because of the Teller Facilities being located upon or adjacent to the Easement Area, including the cost of removal or destruction of any such Teller Facilities, and such cost as the City may incur in attempting to protect any of the Teller Facilities from damage in connection with the doing of any of the City Work, and (iii) in making any extraordinary excavations or using extraordinary construction methods in attempting to protect the Teller Facilities. The Bank further agrees to pay such costs and expenses within ten (10) days after receipt of a statement from the City setting forth such extra cost, and if not paid within said 10 -day period, the amount of such statement shall bear interest at ten (10 %) percent per annum from the end of said 10 -day period until paid, and the Bank also agrees to pay all costs of collection, includ- ing reasonable attorneys' fees, whether suit be brought or not, and interest at ten (10 %) percent per annum on all such costs from the date incurred until paid. GENERAL PROVISIONS 9. If any term, condition, or provision of this agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unen- forceable, the remainder hereof and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this agreement, and all the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. 10. All notices, reports, or demands required or permitted to be given under this agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: -7- To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager. To Bank: 90 South Sixth Street Minneapolis, Minnesota 55402 Attention: President Such addresses may be changed by either party upon notice to the other party given as herein provided. 11. In the event that the Bank fails or refuses to fully comply with all of its obligations under this agreement, and such failure or refusal continues for a period of thirty (30) days from and after notice thereof is given to the Bank, then in that event, in addition to any other remedies then available to the City at law or in equity, the City may revoke the variance granted by the Board of Appeals and revoke the rights hereby granted for the use of the Easement Area, and upon such revocation, the Bank agrees to immediately remove all of the Teller Facilities from the Easement Area and to restore the Easement Area to the condition it was in immediately prior to the construction of the Teller Facilities, or to such better condition as it was thereafter placed in by the City, and to reinstall the 18 parking spaces upon the Subject Prop- erty in a location and manner in full compliance with the then applicable ordinances of the City of Edina. 12. The terms and provisions hereof shall be binding upon the parties hereto, and their respective successors and assigns, and shall run with the title to the Subject Property and Easement Area, and be binding upon all present and future owners of the Subject Property and all present and future holders of the rights of the City under the Easements and this agreement. Wz IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. SAVINGS THE FARMERS AND MECHANICS /BANK OF MINNEAPOLIS by is Voice P r"esident and 9gV,('A1l( l-Lkdc!L_' Its Banking Officer THIS INSTRUMENT IS EXEMPT FROM STATE DEED TAX. Drafted by: DORSEY, WINDHORST, HANNAFORD, WHITNEY & HALLADAY 2300 First National Bank Building Minneapolis, MN 55402 STATE OF MINNESOTA ] } COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this °7 cf- day of 1 ,, `L , 1978, by JAMES STAN VALKENBURG and KENNETH E. ROSLAND, Mayor and Manager, respec- tively, of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of the corporation. N_ ICE 8 HALL8ERG ftbll. 1SIoR kennepin Expires - � S . J�; zoGo AGREEMENT (Conditions to Parking Variance) THIS AGREEMENT, Made and entered into this day of 1981, by and between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP, a Minnesota limited partner- ship (the "Partnership ") and CITY OF EDINA, a Minnesota muni- cipal corporation (the "City "):;. WITNESSETH, THAT: WHEREAS, Partnership is the fee owner of certain . real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, the Partnership proposes to remodel on the Property an approximately 58,000 square foot office building ( "Building "), so as to include approximately 45,500 square feet of net rentable space, and parking and landscaping to e be used in connection therewith (the Building and said parking and landscaping being hereinafter called the "Improvements "); and WHEREAS, the Partnership has submitted to the City a parking plan prepared by Howard Dahlgren Associates entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proof of Parking, Concept Plan With Ramp" (the "Plan "), which Plan pro- vides for 271 parking spaces as required by City ordinances, to be constructed on the Property (part in a one level parking ramp), a copy of which Plan is on file with the City and which Plan is incorporated herein by reference; and WHEREAS, the Partnership is of the opinion that 271 parking spaces are not required for the operation of the Building, and it requested of the City Council certain setback, loading berth, lot coverage, drive aisle width, parking space depth and screening variances and a temporary parking variance allowing the construction, pursuant to a parking plan prepared a � exlnil", by Howard Dahlgren Associates, entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proposed Plan" (the "Variance Plan "), of 198 exposed parking spaces rather than the required 271, a copy of which Variance Plan is on file with the City and which Variance Plan is incorporated herein by reference; and WHEREAS, the City did, on August 31, 1981, in case No. B- 81 -18, 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 appli- cable ordinances, but the 73 space parking, variance was tempo- rary only and was conditioned upon the execution, delivery, and recording of this Agreement, and 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, Partnership is agreeable to the granting of the temporary 73 stall parking variance subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement. NOW, THEREFORE, in consideration of the granting by the City of the above requested 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 a variance from its applicable ordinances whereby there need now be constructed on the Property only one hundred ninety -eight (198) exposed parking spaces, subject, however, to the terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole and absolute discretion, that additional parking spaces are required on the Property, -2- the Partnership will, at its sole cost and expense, construct such additional parking spaces as the City Planner and City Manager shall then require, up to the maximum number of parking spaces shown on the Plan, including, if necessary or required, construction of the parking ramp shown on the Plan. The City Planner and City Manager need not require that all of the additional parking spaces be constructed at any one time, but may require additional parking spaces to be constructed from time to time as they deem them necessary, again in their sole and absolute discretion, until the maximum number of parking spaces as shown on the Plan have been constructed, again including, if necessary or required, the parking spaces in the parking ramp shown on the Plan. 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 Partnership may prepare and present to the City a new parking plan for review and approval by the City, and if approved by the City (which approval may be withheld for any reason or cause), such additional parking spaces may then be constructed pursuant to said new parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may be waived by variances, if any, then granted. As above stated, the City Manager and City Planner shall be the sole judges of whether or not additionali parking is required, from time to time, and if so, how much is to be constructed at any given time. (a) The City Manager and the City Planner shall give written notice to Partnership of their determination that additional parking spaces are then required, setting forth in said notice the number of spaces then required to be con- structed, up to the maximum shown on the Plan. Partnership, within thirty (30) days after such notice is given, shall ISIM give written notice to the City as to whether or not they will construct such additional parking spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new 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, Partnership shall be deemed to have agreed to construct such additional spaces pursuant to the Plan. (b) Partnership 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 Partnership elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after approval or rejection by the City of the proposed new plan. The 90 -day period shall be extended for delays due to weather, labor disputes, material shortages or unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes beyond the reasonable control of Partnership, in which case the 90 -day period shall be ex- tended 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 Partnership is using due diligence in completing such construction. 3. Partnership agrees that the net rentable square feet of the Building shall never exceed 45,500 square feet. For purposes hereof, net rentable square feet shall mean the gross area of the Building measured from the inside of the exterior perimeter walls, but excluding all atriums, mechanical -4- rooms, vertical ventilation and circulation spaces, corridors and restrooms. Provided, however, that City, in its sole and absolute discretion, may permit (but shall not, for any cause or reason, be required or obligation to permit) additional net rentable square feet in the Building upon written request therefor made by the then fee owner of the Property and upon delivery to City of such information as it may require in connection with such request. If such request is granted by City, in whole or in part, City may also, as a condition to such grant, require that additional parking spaces be constructed pursuant to paragraph 2 hereof. 4. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unen= forceable, the remainder hereof and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or un enforceable shall not be affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. 5. In the event that Partnership fails or refuses to fully comply with all of its obligations under this Agree- ment, or violates any of the provisions hereof, and such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Partnership, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City shall have the right to: a. Revoke said parking variance described in this Agreement, in which case Partnership shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan and all then applicable ordinances of the City; ME b. Winter upon the Property with such personnel, equipment, and materials as the City deems necessary for the purpose of performing the obligations of Partnership hereunder that it has 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 and pursuant to the Plan, whether or not then required hereunder to be constructed, with- out liability or obligation of any kind to Partnership 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 Partnership, and if any person makes any claim against City for loss or damage to property or business due to such - entry, Partnership agrees to hold City harmless from and in- demnified 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, with interest at eight percent (8 %) per annum from the date demanded until paid. C. Obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief; and d. Withhold, deny, or revoke any building permits, certificates of occupancy, utility connection permits and any other permits and approvals, issued or granted by the City for the construction or occupancy of all or any part of the Improvements, until such failure or refusal ends and Partnership full complies with its obligations hereunder. All of the foregoing remedies shall be usable and enforceable by the City separately or concurrently as the City shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder in the event of a failure or refusal by Partnership, shall not preclude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Partnership agrees to pay to City any and all costs and expenses incurred by City in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the City at law or in equity, including attorneys' fees whether suit be brought or not, and with in- terest on all such costs and expenses at the rate of eight percent (8 %) per annum from the dates incurred by the City until paid. Partnership also agrees to pay all costs of col _ lection of any monies due to City from hereto, and of such costs and expenses this Agreement, with interest thereon, neys' fees and whether suit be brought at the rate of eight percent (8 %) per such costs of collection were incurred Partnership pursuant incurred in enforcing again including attor- or not, with interest innum from the dates until paid. 6. All notices, reports, or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when personally delivered to any officer of the party to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Partnership: 5353 Wayzata Boulevard Minneapolis, MN 55416 Attention: James H. Michael Such addresses may be changed by any party upon notice to the other party given as herein provided. -7- 7. 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 provi- sions hereof should be determined by the legal counsel for City, or by a court of competent jurisdiction, not to be fully binding upon and fully enforceable against any owner of the Property, then the variances granted by City in Case No. B -81 -18 shall wholly cease and terminate and the Property shall be used and useable only in full compliance with all then applicable ordi- nances of the City. If there be at any future time more than one owner of the Property, all of such then owners, while they are such owners, shall be jointly and severally liable for all obligations under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first- above written. THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP By The Michael Partnership, the General Partner of The Michael- Northwestern Limited Partnership By James H. Michael, the General Partner of The Michael Partnership CITY OF ED NA B (. 10 Y Its Mavo�r' And .�._9 is Manager STATE OF MINNESOTA ) SS COUNTY The foregoing instrument was acknowledged before me this .s;',, day of-= _��� 1981, by JAMES H. MICHAEL, the General Partner of The Mic ael Partnership, which is the General Partner of The Michael- Northwestern Limited Partnership, a Minnesota limited Partnership, on behalf of said limited partnership. STATE OF MINNESOTA ) SS COUNTY OF Notary Public ! -? { L0L07�1 �Q95eT t NOIAkY PUSLIC MINNESOTA HFNNEPIN n31 lY eAP"e Jan. The foregoing instrument was a nowledge bef re me this , day o f -�?,e 1981, by/�G,ErUe and P# O5 , respectively the May r and Manag r of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said municipal corporation. CRAIG L. LARSEN I NOTARY PUBLIC - NIII'MSOTA s� HFNNEPIN My commission Expires Sept. 15, 1984 Httl�ttto++sa+ THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2200 First Bank Place East Minneapolis, Minnesota 55402 (TSE) '.m EXHIBIT A To Agreement (Conditions to Parking Variance) between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP and CITY OF EDINA Lot 1, Block 1, Southdale Office Park Addition, except that.part thereof which lies Easterly of a line drawn parallel with and 48 feet Westerly of the following described line: Commencing at the Southeast corner of the Northeast Quarter of Section 30, Township 28, Range 24; thence run Northerly along Easterly line of said section for a distance of 630.60 feet; thence deflect left at an angle of 90 degrees for a distance of 10 feet; thence deflect right at an angle of 90 degrees for a distance of 100 feet to the actual point of be- ginning of the line being described; thence deflect left along a tangential curve having a radius of 5729.58 feet (delta angle 1 degree 09100 ") for a distance of 115 feet; thence tangent to said curve for a distance of 84.30 feet; thence deflect right along a tangential curve having a,radius of 5729.58 feet (delta angle 0 degrees 50154 ") for a distance_ of 84.84 feet to the point of reverse curve; thence Northwesterly along said reverse curve having a radius of 123 feet a distance of 140 feet and there terminating. according to the plat thereof on file or of record in the office of the Registrar of Titles in and for Hennepin County, Minnesota. z C) AGREEMENT (Conditions to Parking Variance) THIS AGREEMENT, Made and entered into this day of 1981, by and between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP, a Minnesota limited partner- ship (the "Partnership ") and CITY OF EDINA, a Minnesota muni- cipal corporation (the "City "): ;. WITNESSETH, THAT: WHEREAS, Partnership is the fee owner of certain . real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, the Partnership proposes to remodel on the Property an approximately 58,000 square foot office building ( "Building "), so as to include approximately 45,500 square feet of net rentable space, and parking and landscaping to be used in connection therewith (the Building and said parking and landscaping being hereinafter called the "Improvements "); and WHEREAS, the Partnership has submitted-to the City a parking plan prepared by Howard Dahlgren Associates entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proof of Parking, Concept Plan With Ramp" (the "Plan "), which Plan pro- vides for 271 parking spaces as required by City ordinances, to be constructed on the Property (part in a one level parking ramp), a copy of which Plan is on file with the City and which Plan is incorporated herein by reference; and WHEREAS, the Partnership is of the opinion that 271 parking spaces are not required for the operation of the Building, and it requested of the City Council certain setback, loading berth, lot coverage, drive aisle width, parking space depth and screening variances and a temporary parking variance allowing the construction, pursuant to a parking plan prepared LU NN a by Howard Dahlgren Associates, entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proposed Plan" (the "Variance Plan "), of 198 exposed parking spaces rather than the required 271, a copy of which Variance Plan is on file with the City and which Variance Plan is incorporated herein by reference; and WHEREAS, the City did, on August 31, 1981, in case No. B- 81 -18; 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 appli- cable ordinances, but the 73 space parking variance was tempo- rary only and was conditioned upon the execution, delivery, and recording of this Agreement, and 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, Partnership is agreeable to the granting of the temporary 73 stall parking variance subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement. NOW, THEREFORE, in consideration of the granting by the City of the above requested 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 a variance from its applicable ordinances whereby there need now be constructed on the Property only one hundred ninety -eight (198) exposed parking spaces, subject, however, to the terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole and absolute discretion, that additional parking spaces are required on the Property, -2- the Partnership will, at its sole cost and expense, construct such additional parking spaces as the City Planner and City Manager shall then require, up to the maximum number of parking spaces shown on the Plan, including, if necessary or required, construction of the parking ramp shown on the Plan. The City Planner and City Manager need not require that all of the additional parking spaces be constructed at any one time, but may require additional parking spaces to be constructed from time to time as they deem them necessary, again in their sole and absolute discretion, until the maximum number of parking spaces as shown on the Plan have been constructed, again including, if necessary or required, the parking spaces in the parking ramp shown on the Plan. 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 Partnership may prepare and present to the City a new parking plan for review and approval by the City, and if approved by the City (which approval may be withheld for any reason or cause), such additional parking spaces may then be constructed pursuant to said new parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may be waived by variances, if any, then granted. As above stated, the City Manager and City Planner shall be the sole judges of whether or not additional: parking is required, from time to time, and if so, how much is to be constructed at any given time. (a) The City Manager and the City Planner shall give written notice to Partnership of their determination that additional parking spaces are then required, setting forth in said notice the number of spaces then required to be con- structed, up to the maximum shown on the Plan. Partnership, within thirty (30) days after such notice is given, shall ISIM give written notice to the City as to whether or not they will construct such additional parking spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new 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, Partnership shall be deemed to have agreed to construct such additional spaces pursuant to the Plan. (b) Partnership 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 Partnership elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after approval or rejection by the City of the proposed new plan. The 90 -day period shall be extended for delays due to weather, labor disputes, material shortages or unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes beyond the reasonable control of Partnership, in which case the 90 -day period shall be ex- tended 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 Partnership is using due diligence in completing such construction. 3. Partnership agrees that the. net rentable square feet of the Building shall never exceed 45,500 square feet. For purposes hereof, net rentable square feet shall mean the gross area of the Building measured from the inside of the exterior perimeter walls, but excluding all atriums, mechanical -4- Ark rooms, vertical ventilation and circulation spaces, corridors and restrooms. Provided, however, that City, in its sole and absolute discretion, may permit (but shall not, for any cause or reason, be required or obligation to permit) additional net rentable square feet in the Building upon written request therefor made by the then fee owner of the Property and upon delivery to City of such information as it may require in connection with such request. If such request is granted by City, in whole or in part, City may also, as a condition to such grant, require that additional parking spaces be constructed pursuant to paragraph 2 hereof. 4. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unen- forceable, the remainder hereof and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or un --- enforceable shall not be affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. 5. In the event that Partnership fails or refuses to fully comply with all of its obligations under this Agree- ment, or violates any of the provisions hereof, and such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Partnership, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City shall have the right to: a. Revoke said parking variance described in this Agreement, in which case Partnership shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan and all then applicable ordinances of the City; -5- b. Enter upon the Property with such personnel, equipment, and materials as the City deems necessary for the purpose of performing the obligations of Partnership hereunder that it has 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 and pursuant to the Plan, whether or not then required hereunder to be constructed, with- out liability or obligation of any kind to Partnership 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 Partnership, and if any person makes any claim against City for loss or damage to property or business due to such - entry, Partnership agrees to hold City harmless from and in- demnified 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, with interest at eight percent (80) per annum from the date demanded until paid. C. Obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief; and d. Withhold, deny, or revoke any building z. permits, certificates of occupancy, utility connection permits and any other permits and approvals, issued or granted by the City for the construction or occupancy of all or any part of the Improvements, until such failure or refusal ends and Partnership full complies with its obligations hereunder. 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 MDE or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder in the event of a failure or refusal by Partnership, shall not preclude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Partnership agrees to pay to City any and all costs and expenses incurred by City in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the City at law or in equity, including attorneys' fees whether suit be brought or not, and with in- terest on all such costs and expenses at the rate of eight percent (80) per annum from the dates incurred by the City until paid. Partnership also agrees to pay all costs of col- _ lection of any monies due to City from hereto, and of such costs and expenses this Agreement, with interest thereon, neys' fees and whether suit be brought at the rate of eight percent (80) per such costs of collection were incurred Partnership pursuant incurred in enforcing again including attor- or not, with interest annum from the dates until paid. 6. All notices, reports, or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when personally delivered to any officer of the party to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Partnership: 5353 Wayzata Boulevard Minneapolis, MN 55416 Attention: James H. Michael Such addresses may be changed by any party upon notice to the other party given as herein provided. -7- 7. 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 provi- sions hereof should be determined by the legal counsel for City, or by a court of competent jurisdiction, not to be fully binding upon and fully enforceable against any owner of the Property, then the variances granted by City in Case No. B -81 -18 shall wholly cease and terminate and the Property shall be used and useable only in full compliance with all then applicable ordi- nances of the City. If there be at any future time more than one owner of the Property, all of such then owners, while they are such owners, shall be jointly and severally liable for all obligations under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first- above written. THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP By The Michael Partnership, the General Partner of The Michael- Northwestern Limited Partnership By JamJds ` H .' Mic ae-1 , the General Partner of The Michael Partnership CITY OF ED NA By (? Its Mavo�` And 'W-IM ger STATE OF MINNESOTA ) �r ) SS COUNTY The foregoing instrument was acknowledged before me this ,siy -day of. ��:�_ %3 f c� 1981, by JAMES H. MICHAEL, the General Partner o'f The Michael Partnership, which is the General Partner of The Michael- Northwestern Limited Partnership, a Minnesota limited Partnership, on behalf of said limited partnership. STATE OF MINNESOTA ) SS COUNTY OF tlXe /l ) Notary Pu lic �o�ozes &,ayyezt N01AkY VUIEIC — MINNESOTA HENNEPIN COUNTY •+. _ IMISL,ci, expues J an. 31, 19 @7 I The foregoing instrument was a nowledge bef re me thi s day of �,e 1981, by �i(�B and respectively the May r and Manag r of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said municipal corporation. ,: «� o•;� CRAIG L. LARSEN 1 �! NOTARY PUBLIC i11NNcSOTA 4 HENNEPIN GO':JidfY a,...: My Commission Expires Sept. 15. 1984 THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2200 First Bank Place East Minneapolis, Minnesota 55402 (TSE) �'l EXHIBIT A To Agreement (Conditions to Parking Variance) between THE MICIiAEL- NORTHWESTERN LIMITED PARTNERSHIP and CITY OF EDINA Lot 1, Block 1, Southdale Office Park Addition, except that.part thereof which lies Easterly of a line drawn parallel with and 48 feet Westerly of the following described line: Commencing at the Southeast corner of the Northeast Quarter of Section 30, Township 28, Range 24; thence run Northerly along Easterly line of said section for a distance of 630.60 feet; thence deflect left at an angle of 90 degrees for a distance of 10 feet; thence deflect right at an angle of 90 degrees for a distance of 100 feet to the actual point of be- ginning of the line being described; thence deflect left along a tangential curve having a radius of 5729.58 feet (delta angle 1 degree 09100 ") for a distance of 115 feet; thence tangent to said curve for a distance of 84.30 feet; thence deflect right along a tangential curve having a,radius of 5729.58 feet (delta angle 0 degrees 50154 ") for a distance_ of 84.84 feet to the point of reverse curve; thence Northwesterly along said reverse curve having a radius of 123 feet a distance of 140 feet and there terminating. according to the plat thereof on file or of record in the office of the Registrar of Titles in and for Hennepin County, Minnesota. z O G C> AGREEMENT (Conditions to Parking Variance) THIS AGREEMENT, Made and entered into this P/ day of 1981, by and between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP, a Minnesota limited partner- ship (the "Partnership ") and CITY OF EDINA, a Minnesota muni- cipal corporation (the "City"}.;. WITNESSETH, THAT: WHEREAS, Partnership is the fee owner of certain real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, the Partnership proposes to remodel on the Property an approximately 58,000 square foot office bui2!n - ( "Building "), so as to include approximately 45,500 square feet of net rentable space, and parking and landscaping to be used in connection therewith (the Building and said parking and landscaping being hereinafter called the "Improvements "); and WHEREAS, the Partnership has submitted-to the City a parking plan prepared by Howard Dahlgren Associates entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proof of Parking, Concept Plan With Ramp" (the "Plan "), which Plan pro- vides for 271 parking spaces as required by City ordinances, to be constructed on the Property - 19zTrt in a 8 gel parking ramp), a copy of whicr, Plan is on file with the Ci�Y and which Plan is incorporated herein by reference; and WHEREAS, the Partnership is of the opinion that 271 parking spaces are not required for the operation of the Building, and it requested of the City Council certain setback, loading berth, lot coverage, drive aisle width, parking space depth and screening variances and a temporary parking variance allowing the construction, pursuant to a parking plan prepared i MN by Howard Dahlgren Associates, entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proposed Plan" (the "Variance Plan "), of 198 exposed parking spaces rather than the required 271, a copy of which Variance Plan is on file with the City and which Variance Plan is incorporated herein by reference; and WHEREAS, the City did, on August 31, 1981, in case No. B- 81 -18, 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 appli- cable ordinances, but the 73 space parking variance was tempo- rary only and was conditioned upon the execution, delivery, and recording of this Agreement, and 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, Partnership is agreeable to the granting of the temporary 73 stall parking variance subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement. NOW, THEREFORE, in consideration of the granting by the City of the above requested 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 a variance from its applicable ordinances whereby there need now be constructed on the Property only one hundred ninety -eight (198) exposed parking spaces, subject, however, to the terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole and absolute discretion, that additional parking spaces are required on the Property, -2- the Partnership will, at its sole cost and expense, construct such additional parking spaces as the City Planner and City Manager shall then require, up to the maximum number of parking spaces shown on the Plan, including, if necessary or required, construction of the parking ramp shown on the Plan. The City Planner and City Manager need not require that all of the additional parking spaces be constructed at any one time, but may require additional parking spaces to be constructed from time to time as they deem them necessary, again in their sole and absolute discretion, until the maximum number of parking spaces as shown on the Plan have been constructed, again including, if necessary or required, the parking spaces in the parking ramp shown on the Plan. 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 Partnership may prepare and present to the City a new parking plan for review and approval by the City, and if approved by the City (which approval may be withheld for any reason or cause), such additional parking spaces may then be constructed pursuant to said new parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may be waived by variances, if any, then granted. As above stated, the City Manager and City Planner shall be the sole judges of whether or not additional{ parking is required, from time to time, and if so, how much is to be constructed at any given time. (a) The City Manager and the City Planner shall give written notice to Partnership of their determination that additional parking spaces are then required, setting forth in said notice the number of spaces then required to be con- structed, up to the maximum shown on the Plan. Partnership, within thirty (30) days after such notice is given, shall -3- give written notice to the City as to whether or not they will construct such additional parking spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new 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, Partnership shall be deemed to have agreed to construct such additional spaces pursuant to the Plan. (b) Partnership 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 Partnership elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after approval or rejection by the City of the proposed new plan. The 90 -day period shall be extended for delays due to weather, labor disputes, material shortages or unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes beyond the reasonable control of Partnership, in which case the 90 -day period shall be ex- tended 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 Partnership is using due diligence in completing such construction. 3. Partnership agrees that the net rentable square feet of the Building shall never exceed 45,500 square feet. For purposes hereof, net rentable square feet shall mean the gross area of the Building measured from the inside of the exterior perimeter walls, but excluding all atriums, mechanical -4- rooms, vertical ventilation and circulation spaces, corridors and restrooms. Provided, however, that City, in its sole and absolute discretion, may permit (but shall not, for any cause or reason, be required or obligation to permit) additional net rentable square feet in the Building upon written request therefor made by the then fee owner of the Property and upon delivery to City of such information as it may require in connection with such request. If such request is granted by City, in whole or in part, City may also, as a condition to such grant, require that additional parking spaces be constructed pursuant to paragraph 2 hereof. 4. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unen- forceable, the remainder hereof and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid or un- enforceable shall not be affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. 5. In the event that Partnership fails or refuses to fully comply with all of its obligations under this Agree- ment, or violates any of the provisions hereof, and such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Partnership, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City shall have the right to: a. Revoke said parking variance described in this Agreement, in which case Partnership shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan and all then applicable ordinances of the City; -5- ,r b. -Enter upon the Property with such personnel, equipment, and materials as the City deems necessary for the purpose of performing the obligations of Partnership hereunder that it has 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 and pursuant to the Plan, whether or not then required hereunder to be constructed, with- out liability or obligation of any kind to Partnership 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 Partnership, and if any person makes any claim against City for loss or damage to property or business due to such - entry, Partnership agrees to hold City harmless from and in- demnified 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, with interest at eight percent (80) per annum from the date demanded until paid. C. Obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief; and d. Withhold, deny, or revoke any building permits, certificates of occupancy, utility connection permits and any other permits and approvals, issued or granted by the City for the construction or occupancy of all or any part of the Improvements, until such failure or refusal ends and Partnership full complies with its obligations hereunder. All of the foregoing remedies shall be usable and enforceable by the City separately or concurrently as the City shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder in the event of a failure or refusal by Partnership, shall not preclude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Partnership agrees to pay to City any and all costs and expenses incurred by City in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the City at law or in equity, including attorneys' fees whether suit be brought or not, and with in- terest on all such costs and expenses at the rate of eight percent (8a) per annum from the dates incurred by the City until paid. Partnership also agrees to pay all costs of col- _ lection of any monies due to City from hereto, and of such costs and expenses this Agreement, with interest thereon, neys' fees and whether suit be brought at the rate of eight percent (8a) per such costs of collection were incurred Partnership pursuant incurred in enforcing again including attor- or not, with interest annum from the dates until paid. 6. All notices, reports, or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when personally delivered to any officer of the party to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Partnership: 5353 Wayzata Boulevard Minneapolis, MN 55416 Attention: James H. Michael Such addresses may be changed by any party upon notice to the other party given as herein provided. -7- 7. 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 provi- sions hereof should be determined by the legal counsel for City, or by a court of competent jurisdiction, not to be fully binding upon and fully enforceable against any owner of the Property, then the variances granted by City in Case No. B -81 -18 shall wholly cease and terminate and the Property shall be used and useable only in full compliance with all then applicable ordi- nances of the City. If there be at any future time more than one owner of the Property, all of such then owners, while they are such owners, shall be jointly and severally liable for all obligations under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first- above written. THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP By The Michael Partnership, the General Partner of The Michael- Northwestern Limited Partnership B\ Jams ` H . - M chae1, the General Partner of The Michael Partnership CI By And 'M 3 , STATE OF MINNESOTA ) � SS COUNTY OF s`�' The forgoing instrument was acknowledged before me this c �day of =��?%i ; ✓t 1981, by JAMES H. MICHAEL, the General Partner o'f The Michael Partnership, which is the General Partner of The Michael - Northwestern Limited Partnership, a Minnesota limited Partnership, on behalf of said limited partnership. STATE OF MINNESOTA ) ' ) SS COUNTY OF Notary Public NOIAKY pU1LIG � 9J27t HENNEPIN COU EsorA n, _ iimissio,expuro Jon. 31,1Y 197 The forego ng instrument was a nowledge before me this day o f ;1? , 19 81, by , Ahi LQOAGi[Je and P ps , respectively the May 6r and Manag r of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said municipal corporation. THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2200 First Bank Place East Minneapolis, Minnesota 55402 (TSE) OVA CRAIG L. LARSEN E NOTARY PUBLIC - MIINNESOTA HENNEPIN COUi ?TY My Commission Expires Sept. 15, 1984 P pop �N++NN•rrss+ THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2200 First Bank Place East Minneapolis, Minnesota 55402 (TSE) OVA EXHIBIT A To Agreement (Conditions to Parking Variance) between THE MICIiAEL- NORTHWESTERN LIMITED PARTNERSHIP and CITY OF EDINA Lot 1, Block 1, Southdale Office Park Addition, except that.part thereof which lies Easterly of a line drawn parallel with and 48 feet Westerly of the following described line: Commencing at the Southeast corner of the Northeast Quarter of Section 30, Township 28, Range 24; thence run Northerly along Easterly line of said section for a distance of 630.60 feet; thence deflect left at an angle of 90 degrees for a distance of 10 feet; thence deflect right at an angle of 90 degrees for a distance of 100 feet to the actual point of be- ginning of the line being described; thence deflect left along a tangential curve having a radius of 5729.58 feet (delta angle 1 degree 09100 ") for a distance of 115 feet; thence tangent to said curve for a distance of 84.30 feet; thence deflect right along a tangential curve having a.radius of 5729.58 feet (delta angle 0 degrees 50154 ") for a distance_ of 84.84 feet to the point of reverse curve; thence Northwesterly along said reverse curve having a radius of 123 feet a distance of 140 feet and there terminating. according to the plat thereof on file or of record in the office of the Registrar of Titles in and for Hennepin County, Minnesota. T z© e- a AGREEMENT (Conditions to Parking Variance) THIS AGREEMENT, Made and entered into this p� , day of - , 1981, by and between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP, a Minnesota limited partner- ship-(the "Partnership ") and CITY OF EDINA, a Minnesota muni- cipal corporation (the "City ");;. WITNESSETH, THAT: WHEREAS, Partnership is the fee owner of certain real property ( "Property ") located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, the Partnership proposes to remodel on the Property an approximately 58,000 square foot office building ( "Building "), so as to include approximately 45,500 square feet of net rentable space, and parking and landscaping to be used in connection therewith (the Building and said parking and landscaping being hereinafter called the "Improvements "); and WHEREAS, the Partnership has submitted -to the City a parking plan prepared by Howard Dahlgren Associates entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proof of Parking, Concept Plan With Ramp" (the "Plan "), which Plan pro- vides for 271 parking spaces as required by City ordinances, to be constructed on the Property (part in a one level parking ramp), a copy of which Plan is on file with the City and which Plan is incorporated herein by reference; and WHEREAS, the Partnership is of the opinion that 271 parking spaces are not required for the operation of the Building, and it requested of the City Council certain setback, loading berth, lot coverage, drive aisle width, parking space depth and screening variances and a temporary parking variance allowing the construction, pursuant to a parking plan prepared �I y Mj.,r EPUTY by Howard Dahlgren Associates, entitled "Michael- Northwestern Partnership, Edina, Minnesota, Proposed Plan" (the "Variance Plan "), of 198 exposed parking spaces rather than the required 271, a copy of which Variance Plan is on file with the City and which Variance Plan is incorporated herein by reference; and WHEREAS, the City did, on August 31, 1981, in case No. B- 81 -18, 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 appli- cable ordinances, but the 73 space parking variance was tempo- rary only and was conditioned upon the execution, delivery, and recording of this Agreement, and 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, Partnership is agreeable to the granting of the temporary 73 stall parking variance subject to the conditions hereinafter set out, and is willing, and represents that it has the power and authority, to enter into this Agreement. NOW, THEREFORE, in consideration of the granting by the City of the above requested 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 a variance from its applicable ordinances whereby there need now be constructed on the Property only one hundred ninety -eight (198) exposed parking spaces, subject, however, to the terms and conditions of this Agreement. 2. If the City Manager and the City Planner shall hereafter determine, in their sole and absolute discretion, that additional parking spaces are required on the Property, -2- r the Partnership will, at its sole cost and expense, construct such additional parking spaces as the City Planner and City Manager shall then require, up to the maximum number of parking spaces shown on the Plan, including, if necessary or required, construction of the parking ramp shown on the Plan. The City Planner and City Manager need not require that all of the additional parking spaces be constructed at any one time, but may require additional parking spaces to be constructed from time to time as they deem them necessary, again in their sole and absolute discretion, until the maximum number of parking spaces as shown on the Plan have been constructed, again including, if necessary or required, the parking spaces in the parking ramp shown on the Plan. 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 Partnership may prepare and present to the City a new parking plan for review and approval by the City, and if approved by the City (which approval may be withheld for any reason or cause), such additional parking spaces may then be constructed pursuant to said new parking plan, as approved, and subject to the then applicable ordinances of the City, except as such ordinances may be waived by variances, if any, then granted. As above stated, the City Manager and City Planner shall be the sole judges of whether or not additional parking is required, from time to time, and if so, how much is to be constructed at any given time. (a) The City Manager and the City Planner shall give written notice to Partnership of their determination that additional parking spaces are then required, setting forth in said notice the number of spaces then required to be con- structed, up to the maximum shown on the Plan. Partnership, within thirty (30) days after such notice is given, shall -3- give written notice to the City as to whether or not they will construct such additional parking spaces pursuant to the Plan or will submit a new plan as above allowed. In the event a new 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, Partnership shall be deemed to have agreed to construct such additional spaces pursuant to the Plan. (b) Partnership 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 Partnership elects to submit a new parking plan, in which case such construction shall commence within ninety (90) days after approval or rejection by the City of the proposed new plan. The 90 -day period shall be extended for delays due to weather, labor disputes, material shortages or unavailability of material, unavoidable casualty, acts of God, the public enemy, or other causes beyond the reasonable control of Partnership, in which case the 90 -day period shall be ex- tended 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 Partnership is using due diligence in completing such construction. 3. Partnership agrees that the net rentable square feet of the Building shall never exceed 45,500 square feet. For purposes hereof, net rentable square feet shall mean the gross area of the Building measured from the inside of the exterior perimeter walls, but excluding all atriums, mechanical -4- rooms, vertical ventilation and circulation spaces, corridors and restrooms. Provided, however, that City, in its sole and absolute discretion, may permit (but shall not, for any cause or reason, be required or obligation to permit) additional net rentable square feet in the Building upon written request therefor made by the then fee owner of the Property and upon delivery to City of such information as it may require in connection with such request. If such request is granted by City, in whole or in part, City may also, as a condition to such grant, require that additional parking spaces be constructed pursuant to paragraph 2 hereof. 4. If any term, condition, or provision of this Agreement, or the application thereof to any person or circum- stance, shall, to any extent, be held to be invalid or unen- forceable, the remainder hereof and the application of such term, provision, and condition to persons or circumstances other than those as to whom it shall be held invalid'or un- enforceable shall not be affected thereby, and this Agreement, and all the terms, provisions, and conditions hereof, shall, in all other respects, continue to be effective and to be complied with to the full extent permitted by law. 5. In the event that Partnership fails or refuses to fully comply with all of its obligations under this Agree- ment, or violates any of the provisions hereof, and such failure, refusal or violation continues for a period of thirty (30) days after notice thereof is given to Partnership, then, in that event, in addition to any other remedies then available to the City at law or in equity, the City shall have the right to: a. Revoke said parking variance described in this Agreement, in which case Partnership shall immediately construct all parking spaces required by the Plan, in full compliance with the Plan and all then applicable ordinances of the City; -5- b. Enter upon the Property with such personnel, equipment, and materials as the City deems necessary for the purpose of performing the obligations of Partnership hereunder that it has 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 and pursuant to the Plan, whether or not then required hereunder to be constructed, with- out liability or obligation of any kind to Partnership 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 Partnership, and if any person makes any claim against City for loss or damage to property or business due to such - entry, Partnership agrees to hold City harmless from and in- demnified 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, with interest at eight percent (8 %) per annum from the date demanded until paid. C. Obtain enforcement of this Agreement by court order for mandatory injunction or other appropriate relief; and d. Withhold, deny, or revoke any building permits, certificates of occupancy, utility connection permits and any other permits and approvals, issued or granted by the City for the construction or occupancy of all or any part of the Improvements, until such failure or refusal ends and Partnership full complies with its obligations hereunder. 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 MM or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder in the event of a failure or refusal by Partnership, shall not preclude City from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Partnership agrees to pay to City any and all costs and expenses incurred by City in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the City at law or in equity, including attorneys' fees whether suit be brought or not, and with in- terest on all such costs and expenses at the rate of eight percent (8 %) per annum from the dates incurred by the City until paid. Partnership also agrees to pay all costs of col- _ lection of any monies due to City from hereto, and of such costs and expenses this Agreement, with interest thereon, neys' fees and whether suit be brought at the rate of eight percent (8 %) per such costs of collection were incurred Partnership pursuant incurred in enforcing again including attor- or not, with interest innum from the dates until paid. 6. All notices, reports, or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when personally delivered to any officer of the party to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To City: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager To Partnership: 5353 Wayzata Boulevard Minneapolis, MN 55416 Attention: James H. Michael Such addresses may be changed by any party upon notice to the other party given as herein provided. -7- 7. 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 provi- sions hereof should be determined by the legal counsel for City, or by a court of competent jurisdiction, not to be fully binding upon and fully enforceable against any owner of the Property, then the variances granted by City in Case No. B -81 -18 shall wholly cease and terminate and the Property shall be used and useable only in full compliance with all then applicable ordi- nances of the City. If there be at any future time more than one owner of the Property, all of such then owners, while they are such owners, shall be jointly and severally liable for all obligations under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed the day and year first above written. THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP By The Michael Partnership, the General Partner of The Michael- Northwestern Limited Partnership BY Ja s H. NMic"cha , the General Partner of The - Micha`v1 Partnership CI By And STATE OF MINNESOTA ) ,,//�� ) Ss COUNTY OFi"� z� "E�''`� } The fore oing instrument was acknowledged before me this.tL�_day of_� 1981, by JAMES H. MICHAEL, the General Partner erf The Michael Partnership, which is the General Partner of The Michael - Northwestern Limited Partnership, a Minnesota limited Partnership, on behalf of said limited partnership. —� • n R STATE OF MINNESOTA ) SS COUNTY OF Ne ) W c NOTARY PUILIC _ 95e7t - MINNESOTA '- HENNEPIN COUNTY expues Jon. 31, 19 #7 I, forego ng instrument was a nowledgL re me this day of � ,e 1981, by A ✓ )e and os respectively the May r ang of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said municipal corporation. THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2200 First Bank Place East Minneapolis, Minnesota 55402 (TSE) CRAIG L. LARSEN T +�� NOTARY PUBLIC MINNESOTA HENNEPIN COUNTY opoppoppof My Commission Expires Sept. 15, 1984 THIS INSTRUMENT WAS DRAFTED BY: Dorsey, Windhorst, Hannaford, Whitney & Halladay 2200 First Bank Place East Minneapolis, Minnesota 55402 (TSE) ( 1 EXHIBIT A To Agreement (Conditions to Parking Variance) between THE MICIiAEL- NORTHWESTERN LIMITED PARTNERSHIP and CITY OF EDINA Lot 1, Block 1, Southdale Office Park Addition, except that.part thereof which lies Easterly of a line drawn parallel with and 48 feet Westerly of the following described line: Commencing at the Southeast corner of the Northeast Quarter of Section 30, Township 28, Range 24; thence run Northerly along Easterly line of said section for a distance of 630.60 feet; thence deflect left at an angle of 90 degrees for a distance of 10 feet; thence deflect right at an angle of 90 degrees for a distance of 100 feet to the actual point of be- ginning of the line being described; thence deflect left along a tangential curve having a radius of 5729.58 feet (delta angle 1 degree 09100 ") for a distance of 115 feet; thence tangent to said curve for a distance of 84.30 feet; thence deflect right along a tangential curve having a,radius of 5729.58 feet (delta angle 0 degrees 50154 ") for a distance_ of 84.84 feet to the point of reverse curve; thence Northwesterly along said reverse curve having a radius of 123 feet a distance of 140 feet and there terminating. according to the plat thereof on file or of record in the office of the Registrar of Titles in and for Hennepin County, Minnesota. 1442602 aMSTEREO VOL�.�LPAGE ,moo •EGISTEREO YOLK----^- - COPY. . OFFICE OF THE REGISTRAR OF TITLES HENNEPIN COUNTY. MINNESOTA CERTIFIED FILED ON OCT 51981 �tt I RAR OF TITLES DEPUTY By a t� , y ,p 6o ADDENDUM TO AGREEMENT (Conditions to Parking Variance) THIS ADDENDUM is made and entered into this day of March, 1982, by and between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP, a Minnesota Limited Partner- ship (the "Partnership ") and CITY OF EDINA, a Minnesota Municipal Corporation (the "City "); W I T N E S S E T H: WHEREAS, the Partnership and the City executed that certain Agreement date, September 21, 1981, (the Agreement), setting forth certain conditions to a Parking FtG.ec w, 'A A e 5/5 re o � 7/.4e5 a 5 17Gc p� lq# �&o? Variance granted by the City with respect to certain real property located in the City of Edina, County of Hennepin, State of Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof; and WHEREAS, the City did, on February 1, 1982, in Case No. B- 81 -18, approve a modification to the definition of "net rentable square feet" of the Building for purposes of the Agreement, which definition is set forth in Paragraph 3 of the Agreement; and WHEREAS, the Partnership and the City desire to amend Paragraph 3 of the Agreement to reflect the modification of the definition of "net rentable square feet" approved by the City; NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: Paragraph 3 of the Agreement shall be amended by deleting it in full and in- seting in its place the following Paragraph 3: "3. Partnership agrees that the net rentable square feet of the Building shall never exceed 45,500 square feet. For purposes hereof, net rentable square feet shall mean the gross area of the Building measured from the inside of the exterior perimeter walls, but excluding all atriums, mechanical rooms including computer equipment rooms, vertical ventilation and circulation spaces, corridors and restrooms. Provided, however, that City, in its sole and absolute discretion, may permit (but shall not, for any cause or reason, be required or obligation, to permit) additional net rentable square feet in the Building upon written request therefor made by the then fee owner of the Property and upon delivery to City of such information as it may require in connect --yyon with such request. If such request is granted by City: it whole or, ipr part, City may also, as a condition to such grant, require that addiz tional parking spaces be constructed pursuant to Paragraph 2 hereof." 2.) Except as expressly and specifically provided herein, the terms and conditions of the Agreement shall remain in full force and effect. 3.) All defined terms contained in this Addendum have the same meaning as the terms as defined in the Agreement. IN WITNESS WHEREOF, the parties have executed this Addendum as of the day and year first above written. THE MICHAEL- NORTHWESTERN LIMITED PARTNERSHIP The Michael Partnership, By the General Partner of The Michael - Northwestern Limited Partnership By: James'H\ Michael, the "General Partner'of The Michael- North- western Partnership STATE OF MINNESOTA ss. COUNTY OF HENNEPIN CITY OF EDINA By: Its: Mayor c t . Manager The foregoing instrument was acknowledged before me this -2 day of March, 1982, by James H. Michael, the General Partner of The Michael Partnership, which is the General Partner of The Michael- Northwestern Limited Partnership, a Minnesota Limited Partnership, on behalf of said Limited Partnership. STATE OF MINNESOTA ss. COUNTY OF HENNEPIN SD_!1:11 9 rswa95ezt w raur.br - :u. — rnir�:��sorn (9 H ` JVc°1N COi:i11Y fYi:r, .cs:.:: sven exp ces tun. 31, 1987 The foregoing instrument was acknowledged before me thisZ day of March, 1982, by C. Wayne Courtney and Kenneth E. Rosland, respectively the Mayor and Manager of the City of Edina, a Minnesota municipal corporation, on behalf of said Municipal Corporation. riaii >� :�•, CRAIG RaN�s'�'�° L T NOTA ?Y PUGL{C . rAIN 1ESNA �•• ' My Commission Expires Scpt. 15, 1384 r sc>sb: eWv�Jaaa�.®.v,a NICS t�ZL:iit?f1 �`7 IT.'.6 ",n � ��....9,at� ?d�:0 i�.,.,_.. :F•5 • •,, . ,i i Center A�inroe :coil , `innesoto 55431 9001, ary / EXHIBIT A to ADDENDUM TO AGREEMENT (Conditions to Parking Variance) between THE MICHAEL - NORTHWESTERN LIMITED PARTNERSHIP and CITY OF EDINA Lot 1, Block 1, Southdale Office: Park Addition, except that.part thereof which lies Easterly of a line drawn parallel with and 48*feet Westerly of the following described line: Commencing at the Southeast corner of the Northeast Quarter of Section 30, Township 28, Range 24; thence run Northerly along Easterly line of said section for a distance of 630.60 feet; thence deflect left at an angle of 90 degrees for a distance of 10 feet; thence deflect right at an angle of 90 degrees for a distance of 100 feet to the actual point of be- ginning of the line being described; thence deflect left along a tangential curve having a radius of 5729.58 feet (delta angle 1 degree 09100 ") for a distance of 115 feet; thence tangent to said curve for a distance of 84.30 feet; thence deflect right along a tangential curve having a,radius of 5729.58 feet (delta angle 0 degrees 50154 ") for a distance of 84.84 feet to the point of reverse curve; thence Northwesterly along said reverse curve having a radius of 123 feet a distance of 140 feet and there terminating. according to the plat thereof on file or of record in the office of the Registrar of Titles in and for Hennepin County, Minnesota. �ios�G i � *tEfiISTERED VOL °1 daSPAGE REGI& EKED VOL °� o°?'S' PAGE z-!? o �i OFFICE OF THE REGIS, HENNEPIN OF OUNTY. MINNESOTA CERTIFIED FILED ON MAR 2 9 1982 REGISTRAR OF TI11.'_S BY DEPUfY 44� L