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AGREEMENT Z I Z 7
(Conditions to Parking Variance)
THIS AGREEMENT, Made and entered into this 15th day of Novem-
ber, 1979, by and between Radisson South Company, a Minnesota
Limited Partnership ( "Owner ") with Carlson Companies, Inc. (for-
merly C.C. Carlson Companies, Inc.), a Minnesota corporation,
General Partner, and CITY OF EDINA, a Minnesota municipal corpor-
ation ("City");
WHEREAS, Owner is the fee owner of certain real property
( "Edina Property ") located in the City of Edina, County of Hennepin,
State of Minnesota, legally described in Part I of Exhibit A
attached hereto and hereby made a part hereof; and
WHEREAS, Owner is the fee owner of certain real property
located in the City of Bloomington, County of Hennepin, State of
Minnesota, legally described in Part Il of Exhibit A attached
hereto and hereby made a part hereof; and Thomas A. Delaney and
Evelyn Mary Delaney, husband and wife, are the fee owners of cer-
tain real property located in the City of Bloomington, County of
Hennepin, State of Minnesota, legally described in Part III of
Exhibit A attached hereto and hereby made a part hereof, subject
to the interest of the Trustees of the Curtis L. Carlson Hennepin
Trust under Agreement dated October 1, 1964 as Vendees under a
certain Contract for Deed from said Thomas A. Delaney and Evelyn
Mary Delaney and the interest of Owner as Lessee under a certain
Lease from said trustees (such properties described in Parts II
and III of Exhibit A shall be collectively referred to hereinafter
as the "Bloomington Property ")
WHEREAS, Owner is the fee owner of a hotel complex now
located on the Edina Property and the Bloomington Property (the
"Existing Hotel "), which hotel complex functions as a single
entity for purposes of parking and other activities; and
WHEREAS, Owner proposes to construct upon the Edina Property
an addition to the Existing Hotel, which addition would contain
170 guest rooms and accessory facilities (all being hereinafter
called the "Addition "); and
WHEREAS, City ordinances require the provision of more than
2,000 parking spaces in total for the Existing Hotel and the
Addition in combination; and 0
1
WHEREAS, there has been submitted to the City a parking plan. ( "Plan "),
which Plan is shown as being received by the City on November 15, 1979)
and prepared by Contract Service Associates and which Plan is on file with
the City and provides for 1,547 parking spaces upon the Edina Property and
Bloomington Property; 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 Existing Hotel and Addition, and has requested of the City
a variance allowing the provision of only 1,257 parking spaces rather
than 1,547 parking spaces as shaven an the Plan and the more than 2,000
parking spaces required by City ordinances; and
WHEREAS, the City did, on July 5, 1979, in case number B- 79 -17, grant, and
on November 15, 1979, amend, the requested variance because strict enforcement
of the City ordinances would, in the case, cause undue hardship because of
circumstances unique to the Edina Property and Bloomington Property, and
the grant of such variance, as amended, 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 the conditions set out in the variance grant, as amended, and only
upon the conditions hereinafter set out in this Agreement and in the
variance grant, as amended, which the City deems necessary to impose to
ensure compliance with the applicable City ordinance and to protect adjacent
properties; and
AREAS, Owner is agreeable to the granting of the variance; as
amended, subject to the conditions hereinafter set out, and is willing,
and represents that it has the power and authority, to enter into this
Agreement.
NOVI, THEREFORE, in consideration of the granting by the City of the
above requested variance, as amended, 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, and thereafter amend, a variance from its applicable
N
ordinances whereby there need not now be constructed to serve the
Existing Hotel and Addition all of the parking spaces which are
otherwise required by City ordinances, subject, however, to the
following terms and conditions of this Agreement and to the
conditions set out in the variance grant, as amended.
2. The variance granted by the City is conditioned on the
following requirements:
a. That if the City Manager and the City Planner, in
their sole discretion, shall hereafter determine that additional
parking spaces are required on the Edina Property or the Blooming-
ton Property, or both, then Owner 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. 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 addition-
al 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 ordinances of the City and of the
City of Bloomington ( "Bloomington "); 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 revised parking plan, as approved, and subject to
the then applicable ordinances of the City and of Bloomington.
It is understood and agreed that the Plan does, and any new or'
revised Plan may, provide for construction of parking areas
(which may include, or consist wholly of, a parking ramp or
3
e
ramps) on both the Edina Property and the Bloomington Property,
and that approval of Bloomington will also be required. Therefore,
to the extent the Plan does, or any new or revised Plan may,
propose construction of additional parking spaces on the Bloomington
Property or which may be subject to the ordinances or regulations
of Bloomington, Owner agrees to use its best efforts and all due
diligence to obtain, at its sole cost and expense, all necessary
approvals and permits from Bloomington (the "Bloomington Permits "),
for the work to be done pursuant to the Plan, or any new or
revised Plan which may be approved by the City.
b. The City Manager and the City Planner shall give
written notice to Owner 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 on said Plan. Owner, within thirty (30) days after
such notice is given, shall give written notice to the City as to
whether or not it will construct such additional parking spaces
pursuant to the Plan or will submit a new or revised plan as
above allowed. In the event a new or revised plan is to be
submitted, it shall accompany the notice given to the City. If
no notice is given to the City within said 30 -day period, Owner
shall be deemed to have agreed to construct such additional
spaces pursuant to the Plan.
C. If such notice and a new or revised plan is submitted
to the City within said 30 -day period, the City shall review the
same and grant its approval of or reject the new or revised plan,
or grant approval subject to modifications or changes in the new
or revised plan.
d. If no such notice and new or revised plan is submitted
to the City within said 30 -day period, then Owner shall promptly
submit the Plan to Bloomington to obtain the Bloomington permits,
if required. If such notice and new or revised plan is submitted
to the City and rejected, Owner shall, promptly after rejection,
submit the Plan to Bloomington, or if approved, promptly after
approval shall submit the new or revised plan (with modifications
4
and changes therein required by the City) to Bloomington, to
obtain the Bloomington Permits, if required. If the Bloomington
Permits are required and, for any reason, are not obtained by
Owner within such time as the City, in its sole discretion, shall
determine is reasonable, then Owner agrees, upon written notice
from the City, to construct all such additional parking spaces as
are then required by the City as set forth in said notice, whether
they be more or less (but not in excess of the maximum shown on
the Plan) than set forth in the notice given by the City pursuant
to Paragraph l.b. hereof, on the following terms and conditions:
i) The additional parking spaces shall be constructed
wholly on the Edina Property;
ii) The City, in said notice, shall designate the
approximate location on the Edina Property
where the additional spaces shall be constructed,
and also state whether they shall be provided,
in whole or in part, by the construction of a
parking ramp or ramps on the Edina Property;
iii) Owner, within one hundred twenty (120) days
after said notice is given by the City pursuant
to this Paragraph d., shall prepare all such
drawings, plans and specifications as may be
necessary for the City to determine that the
additional parking spaces as designated by
the City, and any parking ramp or ramps to
provide the same, comply with all applicable
City ordinances and codes;
iv) Owner also shall make all revisions and changes
required by the City in any such drawings,
plans and specifications, in order to insure
such compliance within sixty (60) days after
notice of such revisions and changes is given
by the City;
v) Upon approval of such drawings, plans and
specifications by the City, Owner shall
5
construct the additional parking spaces, and
any such parking ramp or ramps, pursuant to
such drawings, plans and specifications, as
approved by the City and in compliance with
all applicable City ordinances.
e. 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 the 30 -day period set
out in Paragraph 2b., or after the approval or rejection by the
City pursuant to Paragraph 2c., whichever is applicable. If
Bloomington Permits are required, such construction shall commence
within ninety (90) days after the date all of the Bloomington
Permits are obtained, or if the Bloomington Permits are not
obtained within such time as the City shall determine is reasonable,
then within ninety (90) days after the approval given by the City
pursuant to Paragraph d.v.) hereof; subject, however, to extensions
of said 90 -day 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
reasonble 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 commencment of the delay. Once commenced, the construction
shall be completed with all due diligence as soon as possible
thereafter, subject, however, to delays caused by weather, labor
disputes, material shortages or unavailability of materials, un-
avoidable casualty, acts of God, or other causes beyond the reason-
able control of Owner.
f. That if any term, condition or provision of this
Agreement, or the application thereof to any person or circumstance,
shall, to any extent, or for any reason, be held to be invalid or
unenforceable, then the City, at its option, may exercise or
enforce any one or more of its remedies as set out in Paragraph 3
hereof; and Owner agrees to pay all costs and expenses incurred
0
by the City in so doing, including attorneys' fees, and with
interest, and also all costs of collection thereof, including
attorneys' fees, with interest thereon, all as set out in said
Paragraph 3.
3. In the event that Owner fails or refuses to fully
comply with all of its obligations under this Agreement, and such
failure or refusal continues for a period of thirty (30) days
after notice thereof is given to Owner, then, in that event, in
addition to any other remedies then available to the City at law
or in equity, the City may (i) revoke the said variance, in which
case Owner shall immediately construct all parking spaces required
by and in full compliance with all then applicable ordinances of
the City, or (ii) expend its own monies to perform the obligations
of Owner hereunder and enter upon the Edina Property and Bloomington
Property with such men, equipment, and materials as the City
deems necessary for the purpose of performing the obligations of
Owner hereunder that it has then failed or refused to perform,
or, at City's discretion, of constructing additional parking
spaces pursuant hereto, up to the maximum number shown on the
Plan or as required by the applicable City ordinances, as the
City shall then determine, whether or not then required hereunder
to be consructed, without liability or obligation of any kind to
any owner or occupant of the Edina Property or the Bloomington
Property for trespass or-damage to the Edina Property or the
Bloomington Property, the Existing Hotel, the Addition, or other
property or improvements thereon, (iii) obtain enforcement of
this Agreement by court order for mandatory injunction or other
appropriate relief, or (iv) revoke, or withhold and deny, any
building permits, certificates of occupancy, utility connection
permits, and any other permit and approvals, previously granted,
issued, or given by the City, or then or thereafter to be granted,
issued or given by the City, for the construction or occupancy of
any or all of the Existing Hotel or Addition, or both, until such
failure or refusal ends and the obligations of Owner are fully
complied with. All of the foregoing remedies shall be usable and
. 7
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 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 the
City in enforcing this Agreement by use of the remedies above set
out or by other remedy or means available to the City at law or in
equity, including attorneys' fees, whether suit be brought or
not, and with interest on all such costs and expenses at eight
percent (8%) per annum from the dates incurred by the City until
paid, and owner also agrees to pay all costs of collection of
such costs and expenses, with interest thereon, again including
attorneys' fees and whether suit be brought or not, with interest
at eight percent (8%) per annum on such costs of collection from
the dates incurred until paid.
4. If any term, condition, or provision of this Agreement,
or the application thereof to any person or circumstance, shall,
to any extent, be held to be invalid or unenforceable, the remainder
hereof and the application of such term, provision, and condition
of 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.
5. All notices, reports, or demands required or permitted
to be given under this Agreement shall be in
deemed to be given when delivered personally
the party to which notice is being given, or
the United States mail in a sealed envelope,
certified mail postage prepaid thereon, addr,
at the following addresses:
N
writing and shall be
to any officer of
when deposited in
with registered or
assed to the parties
To City: Attention: City Mangaer
4801 West 50th Street
Edina, MN 55424
To Owner: Attention: Legal Department
Carlson Companies, Inc.
12755 State Highway 55
Minneapolis, MN 55441
Such addresses may be changed by either party upon notice to the
other party given as herein provided.
6. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns, and shall run with the title to the Edina
Property and the Bloomington Property and be binding upon all
present and future owners of the Edina Property and the Bloomington
Property and any part thereof. References herein to Owner shall
mean and include all parties designated herein as Owner and, if
more than one, their liability hereunder shall be joint and
several.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed the day and year first above
written.
RADISSON SOUTH COMPANY
By Carlson Companies, Inc.
formerly C.C. Carlson Companies,
Inc.
s
And
Its
The General Partner
CITY OF EDINA -,, / ,,
Mayor
Manager Its
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
The foregoing instrument was ac Ignowledged before me this��
day of 1979, by and
:7 27,7774 respe_tively the
and of Qwc Carlson
Companies, Inc., a Minnesota corporation, ton behalf of RADISSON
SOUTH COMPANY, a Minnesota Limited Partnership, as its General
Partner.
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
7
N tary Publi
r i:C -7A J)1
The f rego'ng instrument was acknowledged me this
day of pie 1979, by -J lE'�5 VX) Vi4iQla
and &- respectively the Mayor and Manager
of the CITY OF EDINA, a Minnesota municipal corporation, on
behalf of said municipal corporation.
N is
• �cc
r� CRAIG L. Ur' Il BEN
.!! NOTARY PUBIj- f ,;N,RJFMTA
HRNNEPIr+ (;ls'��'�Y
My Commi45f9n Expires Sc4,15,1884
10
i
L \�
EXHIBIT A
TO
AGREEMENT
(Conditions to Parking Variance)
Radisson South Company and City of Edina
PART I
(Edina Property)
That part of Lot 3 lying east of the east line of Lot 2 and its
northerly extension and lying south of the south line of Lot 4 and
its westerly extension, all in Block 1, Replat of Edina Inter-
change Center, according to the plat thereof on file or of record
in the office of the Registrar of Titles in and for Hennepin
County, Minnesota, except that part thereof which lies northeasterly
of the following described line: Beginning at a point on the east
line of said Lot 3 distant 230 feet north of the southeast corner
thereof; thence run northwesterly to a point on the northeasterly
line of said Lot 3 distant 30 feet northwesterly of its intersection
with the east line of said Lot 3 and there terminating.
PART II
(Bloomington Property)
o Lot 1, Block 1, Radisson South, according to the plat thereof on
file and of record in the office of the Registrar of Titles in
and for the County of..Hennepin.
11
EXHIBIT A
(Conditions to Parking Variance
Radisson South Carpany and City of Edina
PART III
(Bloomington Property)
All that part of Government Lot 1, Section 16, Township 116, North
Range 21, Eent of the 5th Principal Meridian desc=i))ed as follow:
Co:rxncncing at the Northwest corner of said Government Lot 1; thence
South alor);t the west line of said Government lot to the center lire
of Stz:tc Highway No. 5; thence Southeasterly along center line of
caid Iiighi•:av 985 fcct; thence North parallel with thc West line of
said Go%,(:rnr c!nt- Loy: 1. to the Forth Line of said Government Lot 1;
thence Wert along the North line of said Government I.,ot 1 to the
point of beg�nning. FCT:T�T that Tart thereof described as follol c•
Al') that part of. Government Lot 1, Section 1.6, Town!, hip 116, RF�n(:r.
21, described as iolloc•.?s: Co,Lmencing at the Northwest corner of
' said Cove::nT:.ent Lct 1; thence Last along the North lino of said. -
r-vnt +. ? 37? .0 feet; thencc £cuth at riM' -:t arc*1ca to t ^e ce::t_•r
lire cf State ;:o. 5; thence North %,esterly along the center
line of .,aid highval• to the West line of said Government Lot 1; t hc•::c,
North along the West line of said Government Lot 1 to the point r:
))eginning.
._ L
CONSENT AND SUBORDINATION
The undersigned, being the fee simple owners of a portion of
the Bloomington Property described on the attached Exhibit A to
the Agreement (Conditions to Parking Variance) to which this
Consent and Subordination is attached, does hereby agree and
consent to all of the terms and conditions of the Agreement to
which this Consent and Subordination is attached, and agrees to
be bound by all of the obligations of, and subject to all of the
remedies available against, Owner, as defined in the Agreement,
in the event it becomes the owner of either the Edina Property or
the Bloomington Property, or both.
Thomas A. Delaney
Evelyn pary Dela 1 y
STATE OF I "JL )
) SS.
COUNTY OF )
The foregoing Consent and Subordination was acknowledged
before me thisk day of 1979 by �%`j�a� Q.
and
Votary Public
YH76C
13
T
CONSENT AND SUBORDINATION
The undersigned, being the assignee of the Vendee's interest
under that certain Contract for Deed dated January 24, 1973
between Thomas A. Delaney and his wife, Evelyn Mary Delaney, as
Vendors and Curtis L. Carlson, as Vendee, which Contract for Deed
was recorded on January 26, 1973, in Book 73 Hennepin County Records
at Page 3997217, and which Contract for Deed covers the Bloomington
Property described in Part III of Exhibit A to the Agreement
(Conditions to Parking Variance) to which this Consent and Sub-
ordination is attached, do hereby consent to all of the terms and
conditions of the Agreement to which this Consent and Subordination
is attached, and hereby subordinate their Vendee's interest in the
property described in Part III on the attached Exhibit A to all
of the terms and conditions of said Agreement (Conditions to
Parking Variance).
cui�\
Matthew J. Levitt,; at Trustee
under the Curtis �. Carlson
Hennepin Trust under Agreement
dated October 1, 1964
P19 It A")
Arleen M. Carlson, as Trustee
under the Curtis L. Carlson
Hennepin Trust under Agreement
dated October 1, 1964.
STATE OF MINNESOTA
) SS.
COUNTY OF HENNEPIN )
On the Vkday of Jaaua-ry, 1980, before me a Notary Public
within and for said County and State, personally appeared MATTHEW
J. LEVITT and ARLEEN M. CARLSON to me known to be the persons des-
cribed in and who executed the foregoing instrument and acknowledged
that they executed the same as their free act and deed and as Trustees.
YH7 6 C
My Corr
,otary Ptiblic
CH". "Y!. A. ROL
r�oT�„r r:-:L! ,y:, UCTA
mission expire; Au;,. _�, S ?66
4555813
Wici (IF CXN - I
NEW PIN Louki Y.!! sy
CLk I !F'f
.2:16
1980 APR 10 PM 2; fib..,.,
Co. I?.-- nz
Duplicate
Filing
Certificate
-Z/ Z 7
14377507
A&STEREO VUL...,4W
OFFICE OF THE REGISTRAft,
OF TITLES
IHENNE-PIN COUNTY. MINNESQ-M
CERTIFIED FILED -QN
APR
FWG[Slma UF ILTiza
ZI zI
yiu=_,� SW 46Q499
a� 0 469499
DISTRICT COURT N9 16560
State of Minnesota
OKrger.
IMPORTANT
In dealing with the land
described in this certificate, the
names of the parties and descrip-
tion of property should be ex-
actly the same as written herein.
�� f fJ ►,f If f
QUIT, fYf f [ (�
...
jw
ATTENTION
DELAY and EXPENSE
will be caused by the loss of this
certificate.
E®
CONTINUED
DOCUMENT
NUMBER
KIND OF
INSTRUMENT
DArEOF NSrRUMENT
DATE OF REG
/$TRATlON
AMOUNT
RUNNING IN FAVOR OF
S IGNATURE OF REGISTRAR
MONTH
DAY
YEAR
MONTH
DAY
YEAR
HOUR
RT-
S�
.•
y registered the 27th day
A. D. 196b Volume 1447 Page 437137
STME OFMPM sow,
COUNwoFHENNEPIN. S.S. J-- 40,-11
i' ' ') State of Minnesota having its principal. place of business
/�
at State Capitol in the City of St. Paul, County of Ramsey and State of Minnesota
All that part of the following described tract:
Lot 3, Block 1, Replat of Edina Interchange Center, according to the plat thereof on file or of record in the office of
the Registrar of Titles in and for said County
which lies northeasterly of the following described line:
Beginning at a point on the east line of said Lot 3 distant 230 feet north of,.tbe southeast corner thereof; thence run
northwesterly to a point on the northeasterly line of said Lot,--3 d . feet northwesterly of its intersection with
the east line of said Lot 3 and there terminates,,:
Subject to the restriction contaiAei hook. 2569 nf:Deeas- page 501, Doc 363+681 until January 25, 1976. Also
The boundaries of above land have kaen` judicially determined dare mirked by Judicial Landmarks set pursuant to
Torrens Case number 16560.
Subject to that utility easement in favor of Nortli�rn.Statesi'powe `Oompany contained in Book 68 of Hennepin County
Records, page 3730709. Also
Subject to those utility and drainage easements in favor of the Village of Edina contained in Book 68 of Hennepin County
Records, page 3738911. Also
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T - _ 71.
�Il' s�'
Fifth a�a�I October �� 71
MIEMOIRIAM By
[Jt YU i r
�aTn lAT TI->F_ (;FRTiF1r:ATF. OF TITLE HERETO ATTACHED.
OF
PjSTA7 E.5. r,A.N
,&A ,UYV I J Vli
vt/ti[ivG.7 vtv t Eiv�����
DATE OP REGISTRATION
L�..��••
AMOUNT
-. _ __ -- - - -- -
RUNNING IN FAVOR OF
SIGNATURE OF REGISTRAR
T
MIND OF
INSTRUMENT
DATEOFINSTRUMENT
MONTH DAY vEAR
MONTH DAV YEAR
�,M
r nr
July 22 l
2 1971
•20
1
Bruch and Morrow, Inc.
(a Minn corp)
On above & other land.
ri
h`s Lien
OVER
1.
z7
y AGREEMENT
(Conditions to Parking Variance)
4555813
THIS PGREEMENT, Made and entered into this 15th day of Novem-
ber, 1979, by and between Radisson South Company, a Minnesota
Limited Pax-tnership ( "Owner ") with Carlson Companies, Inc. (for-
merly C.C. Carlson Companies, Inc.), a Minnesota corporation,
General Partner, and CITY OF EDINA, a Minnesota municipal corpor-
ation ("City");
. WHEREAS, Owner is the fee owner of certain real property
( "Edina Property ") located in the City of Edina, County of Hennepin,
State of Minnesota, legally described in Part I of Exhibit A
attached hereto and hereby made a part hereof; and
WHEREAS, Owner is the fee owner of certain real property
located in the City of Bloomington, County of Hennepin, State of
Minnesota, legally described in Part II of Exhibit A attached
hereto and hereby made a part hereof; and Thomas A. Delaney and
Evelyn Mary Delaney, husband and wife, are the fee owners of cer-
tain real property located in the City of Bloomington, County of
Hennepin, State of Minnesota, legally described in Part III of
Exhibit A attached hereto and hereby made a part hereof, subject
to the interest of the Trustees of the Curtis L. Carlson Hennepin
Trust under Agreement dated October 1, 1964 as Vendees under a
certain Contract for Deed from said Thomas A. Delaney and Evelyn
Mary Delaney and the interest of Owner as Lessee under a certain
Lease from said trustees (such properties described in Parts II
and III of Exhibit A shall be collectively referred to hereinafter
as the "Bloomington Property ");
WHEREAS, Owner is the fee owner of a hotel complex now
located on the Edina Property and the Bloomington Property (the
"Existing Hotel "), which hotel complex functions as a single
entity for purposes of parking and other activities; and
WHEREAS, Owner proposes to construct upon the Edina Property
an addition to the Existing Hotel, which addition would contain
170 guest rooms and accessory facilities (all being hereinafter
called the "Addition "); and
WHEREAS, City ordinances require the provision of more than
2,000 parking spaces in total for the Existing Hotel and the
Addition in combination; and
1
}
WHEREAS, there has been submitted to the City a parking plan ("Plan"),
which Plan is shaven as being received by the City on November 15, 1979,
and prepared by Contract Service Associates and which Plan is on file with
the City and provides for 1,547 parking spaces upon the Edina Property and
Bloomington Property; 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 Existing Hotel and Addition, and has requested of the City
a variance allowing the provision of only 1,257 parking spaces rather
than 1,547 parking spaces as shown on the Plan and the more than 2,000
parking spaces required by City ordinances; and
W E REAS, the City did, on July 5, 1979, in case number B- 79 -17, grant, and
on November 15, 1979, amend, the requested variance because strict enforcement
of the City ordinances would, in the case, cause undue hardship because of
circumstances unique to the Edina Property and Bloomington Property, and
the grant of such variance, as amended, 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 the conditions set out in the variance grant, as amended, and only
upon the conditions hereinafter set out in this Agreement and in the
variance grant, as amended, which the City deems necessary to impose to
ensure conpliance with the applicable City ordinance and to protect adjacent
properties; and
WfiMEAS, Owner is agreeable to the granting of the variance, as
amended, subject to the conditions hereinafter set out, and is willing,
and represents that it has the power and authority, to enter into this
M7, TEEREFORE, in consideration of the granting by the City of the
-above requested variance, as amended, 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, and thereafter amend, a variance from its applicable
2
ordinances whereby there need not now be constructed to serve the
Existing Hotel and Addition all of the parking spaces which are
otherwise required by City ordinances, subject, however, to the
following terms and conditions of this Agreement and to the
conditions set out in the variance grant, as amended.
2. The variance granted by the City is conditioned on the
following requirements:
a. That if the City Manager and the City Planner, in
their sole discretion, shall hereafter determine that additional
parking spaces are required on the Edina Property or the Blooming-
ton Property, or both, then Owner 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. 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 addition-
al 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 ordinances of the City and of the
City of Bloomington ( "Bloomington "); 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 revised parking plan, as approved, and subject to
the then applicable ordinances of the City and of Bloomington.
It is understood and agreed that the Plan does, and any new or
revised Plan may, provide for construction of parking areas
(which may include, or consist wholly of, a parking ramp or
3
ramps) on both the Edina Property and the Bloomington Property,
and that approval of Bloomington will also be required. Therefore,
to the extent the Plan does, or any new or revised Plan may,
propose construction of additional parking spaces on the Bloomington
Property or which may be subject to the ordinances or regulations
of Bloomington, Owner agrees to use its best efforts and all due
diligence to obtain, at its sole cost and expense, all necessary
approvals and permits from Bloomington (the "Bloomington Permits "),
for the work to be done pursuant to the Plan, or any new or
revised Plan which may be approved by the City.
b. The City Manager and the City Planner shall give
written notice to Owner 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 on said Plan. Owner, within thirty (30) days after
such notice is given, shall give written notice to the City as to
whether or not it will construct such additional parking spaces
pursuant to the Plan or will submit a new or revised plan as
above allowed. In the event a new or revised plan is to be
submitted, it shall accompany the notice given to the City. If
no notice is given to the City within said 30 -day period, Owner
shall be deemed to have agreed to construct such additional
spaces pursuant to the Plan.
C. If such notice and a new or revised plan is submitted
to the City within said 30 -day period, the City shall review the
same and grant its approval of or reject the new or revised plan,
or grant approval subject to modifications or changes in the new
or revised plan.
d. If no such notice and new or revised plan is submitted
to the City within said 30 -day period, then Owner shall promptly
submit the Plan to Bloomington to obtain the Bloomington permits,
if required. If such notice and new or revised plan is submitted
to the City and rejected, owner shall, promptly after rejection,
submit the Plan to Bloomington, or if approved, promptly after
approval shall submit the new or revised plan (with modifications
4
and changes therein required by the City) to Bloomington, to
obtain the Bloomington Permits, if required. If the Bloomington
Permits are required and, for any reason, are not obtained by
Owner within such time as the City, in its sole discretion, shall
determine is reasonable, then Owner agrees, upon written notice
from the City, to construct all such additional parking spaces as
are then required by the City as set forth in said notice, whether
they be more or less (but not in excess of the maximum shown on
the Plan) than set forth in the notice given by the City pursuant
to Paragraph l.b. hereof, on the following terms and conditions:
i) The additional parking spaces shall be constructed
wholly on the Edina Property;
ii) The City, in said notice, shall designate the
approximate location on the Edina Property
where the additional spaces shall be constructed,
and also state whether they shall be provided,
in whole or in part, by the construction of a
parking ramp or ramps on the Edina Property;
iii) Owner, within one hundred twenty (120) days
after said notice is given by the City pursuant
to this Paragraph d., shall prepare all such
drawings, plans and specifications as may be
necessary for the City to determine that the
additional parking spaces as designated by
the City, and any parking ramp or ramps to
provide the same, comply with all applicable
City ordinances and codes;
iv) Owner also shall make all revisions and changes
required by the City in any such drawings,
plans and specifications, in order to insure
such compliance within sixty (60) days after
notice of such revisions and changes is given
by the City;
v) Upon approval of such drawings, plans and
specifications by the City, Owner shall
5
construct the additional parking spaces, and
any such parking ramp or ramps, pursuant to
such drawings, plans and specifications, as
approved by the City and in compliance with
all applicable City ordinances.
e. 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 the 30 -day period set
out in Paragraph 2b., or after the approval or rejection by the
City pursuant to Paragraph 2c., whichever is applicable. If
Bloomington Permits are required, such construction shall commence
within ninety (90) days after the date all of the Bloomington
Permits are obtained, or if the Bloomington Permits are not
obtained within such time as the City shall determine is reasonable,
then within ninety (90) days after the approval given by the City
Pursuant to Paragraph d.v.) hereof; subject, however, to extensions
of said 90 -day 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
reasonble 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 commencment of the delay. Once commenced, the construction
shall be completed with all due diligence as soon as possible
thereafter, subject, however, to delays caused by weather, labor
disputes, material shortages or unavailability of materials, un-
avoidable casualty, acts of God, or other causes beyond the reason-
able control of Owner.
f. That if any term, condition or provision of this
Agreement, or the application thereof to any person or circumstance,
shall, to any extent, or for any reason, be held to be invalid or
unenforceable, then the City, at its option, may exercise or
enforce any one or more of its remedies as set out in Paragraph 3
hereof; and Owner agrees to pay all costs and expenses incurred
2
by the City in so doing, including attorneys' fees, and with
interest, and also all costs of collection thereof, including
attorneys' fees, with interest thereon, all as set out in said
Paragraph 3.
3. In the event that Owner fails or refuses to fully
comply with all of its obligations under this Agreement, and such
failure or refusal continues for a period of thirty (30) days
after notice thereof is given to Owner, then, in that event, in
addition to any other remedies then available to the City at law
or in equity, the City may (i) revoke the said variance, in which
case Owner shall immediately construct all parking spaces required
by and in full compliance with all then applicable ordinances of
the City, or (ii) expend its own monies to perform the obligations
of owner hereunder and enter upon the Edina Property and Bloomington
Property with such men, equipment, and materials as the City
deems necessary for the purpose of performing the obligations of
Owner hereunder that it has then failed or refused to perform,
or, at City's discretion, of constructing additional parking
spaces pursuant hereto, up to the maximum number shown on the
Plan or as required by the applicable City ordinances, as the
City shall then determine, whether or not then required hereunder
to be consructed, without liability or obligation of any kind to
any owner or occupant of the Edina Property or the Bloomington
Property for trespass or damage to the Edina Property or the
Bloomington Property, the Existing Hotel, the Addition, or other
property or improvements thereon, (iii) obtain enforcement of
this Agreement by court order for mandatory injunction or other
appropriate relief, or (iv) revoke, or withhold and deny, any
building permits, certificates of occupancy, utility connection
permits, and any other permit and approvals, previously granted,
issued, or given by the City, or then or thereafter to be granted,
issued or given by the City, for the construction or occupancy of
any or all of the Existing Hotel or Addition, or both, until such
failure or refusal ends and the obligations of Owner are fully
complied with. All of the foregoing remedies shall be usable and
7
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 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 the
City in enforcing this Agreement by use of the remedies above set
out or by other remedy or means available to the City at law or in
equity, including attorneys' fees, whether suit be brought or
not, and with interest on all such costs and expenses at eight
percent (8%) per annum from the dates incurred by the City until
paid, and Owner also agrees to pay all costs of collection of
such costs and expenses, with interest thereon, again including
attorneys' fees and whether suit be brought or not, with interest
at eight percent (8%) per annum on such costs of collection from
the dates incurred until paid.
4. if any term, condition, or provision of this Agreement,
or the application thereof to any person or circumstance, shall,
to any extent, be held to be invalid or unenforceable, the remainder
hereof and the application of such term, provision, and condition
of 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.
5. All notices, reports, or demands required or permitted
to be given under this Agreement shall be in
deemed to be given when delivered personally
the party to which notice is being given, or
the United States mail in a sealed envelope,
certified mail postage prepaid thereon, addri
at the following addresses:
8
writing and shall be
to any officer of
when deposited in
with registered or
Bssed to the parties
To City: Attention: City Mangaer
4801 West 50th Street
Edina, MN 55424
To Owner: Attention: Legal Department
Carlson Companies, Inc.
12755 State Highway 55
Minneapolis, MN 55441
Such addresses may be changed by either party upon notice to the
other party given as herein provided.
6. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns, and shall run with the title to the Edina
Property and the Bloomington Property and be binding upon all
present and future owners of the Edina Property and the Bloomington
Property and any part thereof. References herein to Owner shall
mean and include all parties designated herein as Owner and, if
more than one, their liability hereunder shall be joint and
several.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed the day and year first above
written.
9
RADISSON SOUTH COMPANY
By Carlson Companies, Inc.
formerly C.C. Carlson Companies,
Inc.
S.
And Pt-cv+-
Its
The General Partner
CITY OF EDINA
V111 A � ®R 91 rdra: is P
"
Manager And
Ttg
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
The foregoing instrument was a9knowl
of ti':rY 1979, by
.ter! , respect.ivel
d before me this /524 -
/� „� and
and of OvC Carlson
Companies, Inc., a Minnesota corporation, behalf of RADISSON
SOUTH COMPANY, a Minnesota Limited Partnership, as its General
Partner.
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
N, ary Publi
�, ...
The foregoing instrument was acknowledged ,,bef,gre me this / /
day of o& d - 1.979, by -� 5 I ,J I146KEWW UAA� ,
and ,,V respectively the Mayor and Manager
of the CITY OF EDINA, a Minnesota municipal corporation, on
behalf of said municipal corporation.
1'his Instrument Drafted BY
-)ORgEy, WINDHORST, HANNAFORD,
WHITNEY & HALLADAY
2300 FIRST NATL. BANK BLDG.
pAJNNEAPOLIS. MINNESOTA ;5A02
10
c
CRAIG L. LARStN
±�
NOTARY PUBLIC C1N,1?F.S0TA
HENNEA3-1.1 f-' %, ! -' , ; -f
..�
My Commission Expl,,S Se;h. 15, 1984
EXHIBIT A
TO
AGREEMENT
(Conditions to Parking Variance)
Radisson South Company and City of Edina
PART I
(Edina Property)
That part of Lot 3 lying east of the east line of Lot 2 and its
northerly extension and lying south of the south line of Lot 4 and
its westerly extension, all in Block 1, Replat of Edina Inter-
change Center, according to the plat thereof on file or of record
in the office of the Registrar of Titles in and for Hennepin
County, Minnesota, except that part thereof which lies northeasterly
of the following described line: Beginning at a point on the east
line of said Lot 3 distant 230 feet north of the southeast corner
thereof; thence run northwesterly to a point on the northeasterly
line of said Lot 3 distant 30 feet northwesterly of its intersection
U`J with the east line of said Lot 3 and there terminating.
PART II
(Bloomington Property)
Lot 1, Block 1, Radisson South, according to the plat thereof on
j. file and of record in the office of the Registrar of Titles in
and for the County of Hennepin.
11
•
(Conditions to Parking Variance
Radisson South Carpany and City of Edina
PART III
(Bloanington Property)
All that :art of. ,Go :per. nmont Lot 1, Section 16, Township 11G, North
Range 21, t•;ect of the 5th Principal Meridian desc=ibeu as follm-.s:
Co:rxi!`nci.ng at. the Northwest corner of said Govern^iont Lct 1; thence
South alon:t the West line of said Government lot to the center line
of Statc Highway No. 5; thence Southeasterly along cer_tcr line of
said llirhv.,av 985 feet; thence North parallel v-ith the 1,:est lino of
said Gov(,,rnmont_ Ln '_ 1. to the North line of said Government Lot 1;
thence West along the North line of said Government Lot 1 to the
point of beginning. • FXCEPT that ar.t thereof dnscrihcu as follo -1—
All that p.,rt: of. Government Lot 1, Section 1.6, Towm,hi p 110, RF,nc:C.
21, described as ollo rs: Cor.Lnencing at the Northwest coi-r,( of
said Covoznr,.ent Lct 1; thence East along the North line of laic
*^.^::± L„ 4- , . ?? . C fcet ; thence SCL2th at 374-11t arri cs to the cen -I- -
line of State I icfllw: .y 5; thence Northi,esterly along the center:
line of :,ai_c3 Ilighv.-ay to the West line of said Government Lot 1;
North along the [lest line of said Government Lot 1 to the point c,
beginning.
12
r
'�x
CONSENT AND SUBORDINATION
The undersigned, being the fee simple owners of a portion of
the Bloomington Property described on the attached Exhibit A to
the Agreement (Conditions to Parking Variance) to which this
Consent and Subordination is attached, does hereby agree and
consent to all of the terms and conditions of the Agreement to
which this Consent and Subordination is attached, and agrees to
be bound by all of the obligations of, and subject to all of the
remedies available against, Owner, as defined in the Agreement,
in the event it becomes the owner of either the Edina Property or
the Bloomington Property, or both.
Thomas - - /.
STATE OF )
SS.
COUNTY OFp)
The foregoing Consent and Subordination was acknowledged
efore me this day of %%6zw���, 1979 by -ni
and
N tary Public
YH76C
13
{ fA
Y9�'Vr
CONSENT AND SUBORDINATION
The undersigned, being the assignee of the Vendee's interest
under that certain Contract for Deed dated January 24, 1973
between Thomas A. Delaney and his wife, Evelyn Mary Delaney, as
Vendors and Curtis L."'Carlson, as Vendee, which Contract for Deed
was recorded on.January 26, 1973, in Book 73 Hennepin County Records
at Page 3997217, and which Contract for Deed covers the Bloomington
Property described in Part III of Exhibit A to the Agreement
(Conditions to Parking Variance) to which this Consent and Sub-
ordination is attached, do hereby consent to all of the terms and
conditions of the Agreement to which this Consent and Subordination
is attached, and hereby subordinate their Vendee's interest in the
property described in Part III on the attached Exhibit A to all
of the terms and conditions of said Agreement (Conditions to
Parking Variance).
3
Matthew J. Levitt, as Trustee
under the Curtis L. Carlson
Hennepin Trust under Agreement
dated October 1, 1964
Arleen M. Carlson, as Trustee
under the Curtis L. Carlson
Hennepin Trust under Agreement
dated October 1, 1964.
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the .11,1�kday of 1980, before me a Notary Public
within and for said County and State, personally appeared MATTHEW
J. LEVITT and ARLEEN M. CARLSON to me known to be the persons des-
cribed in and who executed the foregoing instrument and acknowledged
that they executed the same as their free act and deed and as Trustees.
YH76C
N tary Public
A f1 0L
NOTk f f II C. .t'; ESOTA
My commission ex;_irss / . 25, 1 "v &6
4555
813
3 3 0
u-,
- C.
FEE REQUIRE
CT F 1: ' I OF
kit
1980 APR 10 PR 2: 16
.11: . umf ST 4555813
CO.PECOIRL- R
mom
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