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4E633
AGREEMENT
(Conditions to Setback, Floor Area Ratios,
and Lot Coverage Variances
for One Corporate Center Phase 6)
THIS AGREEMENT, made and entered into this
day of 1981, by and between RYAN CONSTRUCTION
COMPANY OF MINNESOTA, INC., a Minnesota corporation
( "Owner ") with the CITY OF EDINA, a Minnesota municipal
corporation ( "City ");
WHEREAS, Owner is the fee owner of Lot 1, Block
1, Lot 1, Block 2, Lot 1, Block 3, Lot 1, Block 4, Lot 1,
Block 5, Lot 1, Block 6, Lot 1, Block 7, Lot 1, Block 8
all in One Corporate Center Phase 6, according to the
recorded plat thereof, Hennepin County, Minnesota (the
"Lots "), and also the fee owner of Outlot A of said plat
(the "Property "); all located in the City of Edina; County
of Hennepin, State of Minnesota; and
WHEREAS, the Lots and.Property are presently
undeveloped land; and
WHEREAS, Owner proposes to construct upon the
Lots an eight building office complex with parking on the
Property to be used in connection with said buildings (all
being hereinafter called the "Improvements "); and
WHEREAS, Owner has proposed that tre Improvements
be built as a townhouse type subdivision with each office
building situated upon a separate Lot and all parking
areas, walkways, and amenities to be located upon the
Property which Property would be owned and maintained
jointly by the owners of the eight buildings through their
association; and
WHEREAS, Owner has submitted to the City a set of
architectural plans and specifications for the
Improvements, which plans and specifications are entitled
"One Corporate Center Phase 6, Metro Boulevard, Edina,
Minnesota ", were prepared by Owner, are dated June 2,
1981, and are on file with the City (the "Plans and
Specifications "), and which Plans and Specifications set
forth the exterior architecture and design, location, and
construction specifications of the Improvements; and
WHEREAS, City does not presently have a "Planned
Office District" ordinance pursuant to which floor area
ratios, lot coverages, and setbacks for each of the eight
Lots would otherwise be determined; and
WHEREAS, Owner has requested of the City
variances for floor area ratio, lot coverage, and setbacks
for each of the eight Lots; and
WHEREAS, City did on June 1B, 1981, in Case No.
B -81 -22 (the "Variance Grant "), grant the requested _
variances for floor area ratio, lot coverage, and setbacks
because the strict enforcement of the City ordinances
would, in this case, cause undue hardship because of
circumstances unique to the property, the grant of such
variances would preserve a substantial property right
possessed by other property in the vicinity and zoning
district, would not be materially detrimental to the
public welfare or injurious to other property in the
vicinity or zoning district, and the grant of such
variances has been determined by the City to be in keeping
with the spirit and intent of the applicable ordinances,
but subject to the execution, delivery, and recording of
this Agreement, and only upon the conditions hereinafter
set out in this Agreement, which the City deems necessary
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to impose to ensure compliance with the applicable City
ordinances and to protect adjacent properties; and
WHEREAS, Owner is agreeable to the granting of
the variances subject to the conditions hereinafter set
out, and is willing, and represents that it has the power
and authority, to enter into this Agreement.
NOW, THEREFORE, in consiaeration of the granting
by the City of the above requested variances, and of the
mutual covenants and agreements hereinafter contained, it
is hereby agreed by and between the parties hereto as
follows:
1. The City hereby confirms that it did, as
above stated, grant variances from its applicable
ordinances whereby the floor area ratios, lot coverage,
and setbacks for the Improvements shall be as designated
in the Variance Grant, subject, however, to the following
terms and conditions of this Agreement.
2. Each of the aforesaid eight Lots, and each of
the separate buildings thereon, shall be released and
discharged from the terms and conditions hereof upon
issuance from the City of a recordable Certificate of
Occupancy for the whole of the separate buildincT. Those
Lots and Buildings for which no such Certificate of
Occupancy has been issued (the "Remaining Subject Lots ")
shall continue to be bound to the terms and conditions
hereof.
3. The variances granted by the City are
conditioned on the following requirements:
A. That all Improvements shall be built and
completed by owner, its successors or
assigns, in accord with said Plans and
Specifications.
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B. If any Building is not constructed in accord
with the Plans and Specifications, and if
said Certificate of Occupancy has not then
been issued for such Building, then the City
Manager and the City Planner may give
written notice of such fact to Owner and to
mortgagees of record holding a first lien
( "Mortgagee ") upon the lot upon which the
Building is situated. Owner, within thirty
(30) days after such notice is given, shall
give written notice to City as to whether or
not it will renovate or reconstruct such
exterior design and architecture of the
Building to bring it into conformity with
said Plans and specifications.
C. Owner shall commence such renovation or `
construction within ninety (90) days after
said notice is given by the City Manager and
the City Planner, unless within said 90 -day
period, Owner elects to submit a new or
revised plan for exterior architecture and
design, in which case renovation or
reconstruction shall commence within ninety
(90) days after approval or rejection by the
City of the proposed new or revised plan.
If the proposed new or revised plan is
rejected by City, renovation or
reconstruction shall be completed pursuant
to Plans and Specifications. The ninety
( 90 ) day period of co- nrnencement of
construction above provided shall be subject
IM
to extension by reason of delays due to
weather, labor disputes, material shortages
or unavailability of materials, unavoidable
casualty, acts of God, or other causes
beyond the reasonable control of Owner, in
which case the ninety (90) day period shall
be extended by a period of time equal to any
such delays; provided, that no extension
shall be given for any such delay unless
written notice of such delay is given to the
City within ten (10) days after the
commencement of the delay. Once commenced,
the construction shall be completed with all
due diligence as soon as possible
thereafter. The City shall be the sole
judge of whether Owner is using due
diligence in completing such construction.
4. In the event that Owner fails or refuses to
comply with all of the obligations of Owner under this
Agreement, the City shall send Owner and mortgagee written
notice of Owner's failure or refusal. If such failure or
refusal continues for a period of thirty (30) days after
notice thereof is given to Owner and mortgagee, mortgagee
may, but shall not be obligated to, perform Owner's
obligations hereunder. The City agrees to accept such
performance by mortgagee as performance by Owner, provided
that mortgagee complies with the following requirements:
A. Mortgagee shall (i) either begin renovation
or construction which Owner was to have
undertaken pursuant hereto, or begin efforts
to acquire possession of the pertinent Lot
or Lots by cc=encing a court action or a
mortgage fcreclos•_re by _fvertisement within
ninety (90) days of the date mortgagee
received such notice; and (ii) if mortgagee
decides to accu,ire possession of the
pertinent Lot or lots, cc:nmence renovation
or construction by the earlier of the
following dates: (1) the date which is
sixty (60) days after the date when
mortgagee acquire=_ possession of the
pertinent lo=w r " cr hi
o �o � .._ ( 2 ) �.... date w c:,
is eighteen (16) months after the date when
mortgagee received notice from the City of
Owner's failure or refusal.
B. Once begun, mortgagee shall complete
renovation or construction with all due
diligence. The City shall be the sole judge
of whether mortgagee is using due diligence
in completing such renovation or corstruc-
tion. The City ag ~ees not to exercise any
of the remedies available to it for Owner's
failure or refusal unless and until
mortgagee fails to comply with all of the
requirements for mortgagee's undertaking in
this Paragraph 4.
5. 15 Owner fails to commences any cons trticti on
pursuant to Subparagraph 3C hereof, and if mortgagee
satisfies the requirement of Subparagraph 4y(i) hereof,
then the City agrees to permit mortgagee to submi_ a new
exterior architectural design pursuant to Subparagraph 3C
for review and approval by the City, and if approved by
the City, the renovation or construction may take place
pursuant to such new or revised plans; provided, however,
that the submission of such plan or plans shall in no
event postpone the date by which mortgagee shall commence
renovation or construction pursuant to Subparagraph 4A(ii)
hereof.
6. If Owner fails or refuses to comply with all
of the obligations and requirements of Owner in Paragraphs
3 and 4 hereof, and if mortgagee fails to comply with all
of the requirements set forth in Paragraph 4 hereof for
mortgagee's undertaking, then in addition to any other
remedies available to the City at law or in equity, the
City shall have the right to:
A.' Revoke as to the Remaining Subject Lots any
of the variances described in this
Agreement, in whicr case Owner shall =-
immediately renovate or reconstruct
Remaining Subject Lots and the Improvements
thereon, in full compliance with the Plans
and Specifications and then applicable
ordinances, and without variance (except
those variances not revoked by the City);
B. Enter upon the Remaining Subject Lots with
such men, equipment. and materials as the
City deems necessary for the purposes of
performing the obligations of owner
hereunder which owner and mortgagee have
failed or refused to perform, or, at the
City's discretion, of constructing all or
anv of the Improvements upon the Remaining
Subject Lots in full compliance with the
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Plans and Specifications and then applicable
ordinances and without, variance (except
those variances not revoked by City),
whether or not then required hereunder to be
constructed, without liability or obligation
of any kind to any owner or occupant of any
of the Remaining Subject Lots for trespass
or damage to the Property, the Improvements,
or other property or improvements thereon;
C. Obtain enforcement of this Agreement as to
the Remaining Subject Lots against Owner by
court order for mandatory injunction or
other appropriate relief; and
D.' Withhold and deny, as to the Remaining
Subject Lots any building permits,
certificates of occupancy, utility --
connection permits and any other permits and
approvals then or thereafter to be granted,
issued or given by the City, for the
construction or occupancy of the Remaining
Subject Lots, until such failure or refusal
ends and the obligations of Owner are fully
complied with.
All of the foregoing remedies shall be usable and
enforceable by the City separately or concurrently as the
City shall determine, and the use of one remedy shall not
waive or preclude the use of one or more of the remedies.
Also, the failure to exercise, or delay in exercising, any
remedy hereunder in the event of a failure or refusal by
Owner shall not preclude the City from thereafter
exercising any of its remedies for the same or a
Mem
subsequent failure or refusal. owner agrees to pay to the
City any and all costs and expenses incurred by City in
enforcing this Agreement by use of the remedies set out
above or by other remedy or means available to City at law
or in equity, including attorneys' fees, whether suit be
brought or not, and with interest on all such costs and
expenses at the highest rate then allowed by law, or, if
no maximum rate is applicable, then at the rate of
interest from time to time publicly announced by First
National Bank of Minneapolis as its prime rate plus two
percent (2 %), per annum from the dates incurred by City
until paid, and owner also agrees to pay all costs of
collection of such costs and expenses, with interest
thereon, again including attorneys' fees and whether suit
be brought or not, with interest at the highest rate then
allowed by law, or, if no maximum rate is applicable,
then at the rate of interest from time to time publicly
announced by First National Bank of Minneapolis as its
prime rate plus two percent (2 %), per annum on such costs
of collection from the dates incurred until paid.
7. If any term, condition, or provision of this
Agreement., or the application thereof to any person or
circumstance, shall, to any extent, be held to be invalid
or unenforceable, the remainder hereof and the application
of such term, provision, and condition to persons or
circumstances other thart those as to whom it shall be held
invalid or not enforceable shall not be affected thereby, .
and this Agreement, and all the terms, provisions, and
conditions hereof, shall, in all other respects, continue
to be et_ecti ve and to be co-nplied with to the tu' 1 extent
permitted by law.
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8. All notices, reports, or demands required or
permitted to be given under this Agreement shall be in
writing and shall be deemed to be given when delivered
personally to any officer of the party to which notice is
being given, or when deposited in the United States mail
in a sealed envelope, with registered or certified mail,
postage prepaid thereon, addressed to the parties at the
following addresses:
To City: City of Edina
4801 West 50th Street
Edina, Minnesota 55424
Attention: City Manager
To Owner: Ryan Construction Company of
Minnesota, Inc.
One Corporate Center
7401 Metro Boulevard, Suite 500
Edina, Minnesota 55435
To first lien
mortgagees of
record: To their address shown of
record, to their Minnesota -
address, or to the address
given to the City, as selected
by the City.
The address of City and Owner may be changed by either
party upon notice to the other party given as herein
provided.
9. The terms and provisions hereof shall be
binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, and
shall run with the title to the Lots but shall be binding
upon the owners from time to time of the Lots only during
the period of their ownership. References herein to Owner
shall mean and include all parties designated herein as
Owner and their liability hereunder shall be joint and
several, and if there be at any future time more than one
owner of the Lot or Lots, all of such then owners, while
they are such owners, shall be jointly and severally
liable for all obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have
caused this instrument to be duly executed the day and
year first above written.
n
r�. 6s ':
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
RYAN C _ TRUCTION COMPANY OF
MI ESO A, INC.
By
Its Presiden
CITY OF EDINA
WA
Ar.
The foregoing instrument was acknowledged before
me this day of ,,,Q, -� 1981, by James R. Ryan,
the President of RYAN CONSTRUCTION COMP ANY OF MINNESOTA,
INC., a Minnesota corporation, on behalf of the
corporation.
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
Notary Public
J"OLIN, tiVtTWOEl.TER ♦`j
MIUNISOTA
NENNCFjA COUNty ++
Mf C"FANIre" •At;l►is id A, 18, 198$ S
The foregoing instrument was acknowledged before
me this �`�day of C,E herg 1981, by 61%wje %awY�
and 71ir�if y. Zs(q-� _ , Mayor and Manager, respectively __c3f
the CITY OF EDINA, a Minnesota municipal corporation, on
behalf of the city.
T'_^.is Instrument Was Drafted
Dorsev, Windhorst, Whitney
Hannaford & Halladay
by -880 First National Bank
St. Paul, Minnesota 55101
oy V 67ub
I A �
By: CRNG L. LA 1E—N
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