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AGREEMENT
(Conditions to Parking Variance)
THIS AGREEMENT, made and entered into this 27th day
of February, 1980, by and between VULCAN PROPERTIES, INC. ,
• corporation ( "Owner ") and CINEMALAND, INC.
• MN corporation ( "Lessee "), and CITY OF EDINA, a Minnesota
municipal corporation ( "City")
WHEREAS, Owner is the fee owner of, and Lessee is the
lessee of a portion of, certain real property ( "Property ") lo-
cated in the City of Edina, County of Hennepin, State of Minnesota,
legally described in Exhibit A attached hereto and hereby made a
part hereof; and
WHEREAS, there is presently constructed on the Pro-
perty a shopping center known as the Yorktown Fashion Center
(the "Center ") and parking to be used in connection with all
buildings in the Center; and
WHEREAS, the portion of the Center leased by Lessee
is shown by the lining on Exhibit B attached hereto and hereby
made a part hereof ( "Lessee Property"); and
WHEREAS, Lessee uses the Lessee Property as and for
a motion picture theatre and proposes to add a third motion pic-
ture theatre auditorium to the Lessee Property; and
WHEREAS, the Center will be required to provide 722
parking spaces if the third auditorium is constructed, but pre-
sently provides only 535 parking spaces; and
WHEREAS, the other businesses in the Center are pre-
sently open for business from 9:00 A.M. to 6:00 P.M. on Monday
through Thursday, from 9 :00 A.M. to 9:00 P.M. on Fridays, and
from 9:00 A.M. to 6:00 P.M. on Saturdays, and the restaurants,
being LeBistro with 160 seats, Taco Johns with 20 seats and the
Empress with 70 seats, are presently open for business from
10 :00 A.M., at the earliest, to 9:30 P.M., at the latest, on
Mondays through Thursdays, from 10:00 A.M., at the earliest, to
11 :00 P.M., at the latest, on Friday and Saturday, and from 10:00
c '
A.M., at the earliest, to 8:00 P.M., at 'the latest, on Sunday,
and the Lessee Property is presently open for business from 6 :00
P.M. on Monday through Friday, and all day Saturdays and Sundays,
resulting in the major period of combined use of the parking
spaces on Fridays from'and after 6:00 P.M. and on Saturdays; and
WHEREAS, because the combined use of the parking spaces
by the other businesses in the Center and by Lessee is so limited,
Owner and Lessee are of the opinion that not all of the parking
spaces required by ordinance are required for the efficient and
proper use and operation of the Center and have requested of the
City a variance allowing the construction of the third auditorium
without providing any parking additional to the 535 parking spaces
now provided; and
WHEREAS, the City did, on December 6, 1979, in Case
No. B- 79 -44, grant the requested variance because strict enfor-
cement of the City ordinances would, in this case, cause undue
hardship because of circumstances unique to the Property, and
the grant of such variance has been determined by the City to
be in keeping with the spirit and intent of the applicable ordi-
nances, but subject to the execution, delivery, and recording
of this Agreement, and only upon the conditions hereinafter set
out in this Agreement, which the City deems necessary to impose
to ensure compliance with the applicable City ordinances and to
protect adjacent properties; and
WHEREAS, Owner is agreeable to the granting of the
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 variance, 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
the third motion picture auditorium may be constructed on the
1)
Lessee Property without providing any parking additional to the
535 parking spaces now provided in the Center, subject, however,
to the following terms and conditions of this Agreement.
2. The variance granted by the City is conditioned
on the following. requirements:
a. This variance shall be restricted only to the
use of the whole of the Lessee Property as and for a motion picture
theatre. If any part of the Lessee Property should cease to be
-used as and for a motion picture theatre, then this variance
automatically shall cease and terminate; provided, however, that
this variance shall not automatically cease and terminate if (i)
the third motion picture auditorium built pursuant to this
variance (the "Third Auditorium ") should cease to be used as and
for a motion picture theatre under the terms of this Agreement
or (ii) if the Lessee Property ceases to be used as and for a
motion picture theatre temporarily for repairs and maintenance.
Upon termination of this variance, the operation and use of the
'Third Auditorium as and for a motion picture auditorium, shall
cease until such time as the parking spaces in the Center shall
be increased to 722 parking spaces in full compliance with the
then applicable ordinances of the City.
b. If, at any time, and for any reason, including,
without limitation, a change in the hours that the Lessee Property
or the other businesses in the Center, including said restaurants,
are open for business as such hours are set forth in the sixth
Whereas paragraph of this agreement, or a change in the use of
other areas in the Center, the parking in the Center becomes con-
gested or inadequate, in the sole opinion and discretion of the
City Manager and Planner, and such congestion or inadequacy can be
corrected or cured in the sole opinion and discretion of the City
Manager and Planner, in whole or in part, by (i) restricting the
hours of operation of the Third Auditorium, the location of which
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is shown by the lining on Exhibit C, attached hereof, or (ii) by
closing and not operating the Third Auditorium, then, the City Manager,
by notice to Owner and Lessee, may so restrict such hours of
operation of the Third Auditorium to such extent and time as the
City Manager shall determine, or order closing of the Third
Auditorium,
or both.
Such
notice shall
set
forth the date by
which such
hours shall
be
so restricted,
or
such auditorium
closed, or both shall be done. Provided, however, that such
notice shall give to Lessee not less than thirty (30) days after
such notice is given in which to comply with the requirements of
the notice, and shall give to Owner not less than sixty (60) days
after such notice is given in which to comply with such require-
ments if not complied with by Lessee in said 30 -day period.
3. In the event that Owner and Lessee fail or refuse
to fully comply with all of the obligations of Owner and Lessee
as set forth in paragraph 2 of this Agreement, then and 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 and Lessee shall immediately stop
use of the Third Auditorium built pursuant to this variance until
all parking spaces required by the then applicable ordinances of
the City up to a maximum of 722 are constructed in full compliance
with such ordinances, (ii) enter upon the Property and Center with
such men, equipment and materials as the City deems necessary for
the purpose of performing -the obligations of the Owner and Lessee
hereunder that it has then failed or refused to perform, or, at
City's discretion, of constructing upon the Property, all parking
spaces then required by then applicable ordinances of the City up to
a maximum of 722, without liability or obligation of any kind to
any owner, lessee, or occupant of the Property for trespass or
damage to the Property, or other property or improvements thereon,
(iii) obtain enforcement of this Agreement by court order for
-4-
mandatory injunction or other appropriate relief, or (iv) remove,
or withhold and deny, any building permits, certificates of occu-
party, utility connection permits, and any other permits and ap-
provals previously granted, issued, or given by the C:ety, or then
or thereafter to be granted, issued, or given by the City, for
the construction or occupancy of any or all of the Property or
Center, until such failure or refusal ends and the obligations of
Owner and Lessee 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 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 or Lessee shall not preclude the City from
thereafter exercising any of its remedies for the same or subse-
quent failure or refusal. Lessee and Owner agree to pay to the
City any and all costs and expenses incurred by the City in en-
forcing this Agreement by use of the remedies set out above or by
other remedy or means available to City at law or in equity, in-
cluding 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
and Lessee also agree 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
rgreement, or the application thereof to'any person or circum-
stance, shall, to any extent, be held to be invalid or unenforce-
able, the remainder thereof and the application of such term,
z_ovision, and condition to persons or circumstances other than
t:ose as to whom it shall be held invalid or unenforceable, shall
not be affected thereby, and this Agreement, and all the terms,
-5-
provisions, and conditions hereof, shall, in all other respects,
continue to be effective and to be complied with to the full ex-
tent permitted by law.
5. All notices, reports, or demands required or per-
mitted 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: Vulcan Properties, Inc.
c/o Tycon Management, Inc.
P.O. Box 270
Minneapolis, Minnesota 55440
To Lessee: Cinemaland, Inc.
704 Hennepin Avenue`
Minneapolis, Minnesota 55403
The above 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 Property and shall be binding upon all present and future
owners, lessees and occupants of all and every part of the Pro-
perty. References herein to Owner and Lessee shall mean and in-
clude all parties designated herein as Owner and Lessee and, if
more than one, their liability hereunder shall be joint and several.
Y
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed the day and year first above written.
OWNER: VULCAN PROPERTIES, INC.
By Q
Its
And
Its
LESSEE: CINEMALAND, INC.
CITY:
STATE OF MINNESOTA)
SS
COUNTY OF 1��,�,y��i, � )
The foregoing inst
this day of =�
and
and of ;
a on�Q
STATE OF MINNESOTA)
) SS
COUNTY OF HENNEPIO
By
Its
And
Its
nt was acknowledged before me
I
by Y ��S Gi �`.�► G
e ely the
G
The foregoing instrument was acknowledged before me
this 22nd day of February , 19 8O, by Marvin Mann
a414----------------- - - - - -- , respectively the president
aQ4 -------------------- of Cinemaland, Inc. ;
a MN corporation , on behalf of said corporation
—7—
X MAW
DEBB( K. BLAIR
< % — )�i NOTARY PUBLIC - MINNESOTA
5 NE'NEPIN COUNTY 3
< My Commission Expires June 12, 1986 y
X v ✓VvIV nn":vvvn ^ ✓,. r�r
STATE OF MINNESOTA)
) SS
COUNTY OF HENNEPIN)
The fore oing instrument was acknowledge before me
this day of 198-61, by �/fjyl s YA.0 �!c'4—/�
and j ,r & -rA1 E respectively the Mayor and Mana er
of the CITY OF EDINA, a Minnesota municipal corporation, on be-
half of said corporation.
This Instrument Drafted .3y
30RC7Y, WINDHORST, HANNAFORD,
WHITNEY & HALLADAY
2300 FIRST NATL. BANK BLDG.
MINNEAPOLIS, MINNESOTA 55402
n:;c::ovoe.
CRAIG L. LARSEN
'�
NCTAf Y PUBLIC MINNESOTA
HENNEPIN COUNTY
��,>
Expires Sept. 15, 1984
My Commission
ms,t^s�sw�oes,00,wa
This Instrument Drafted .3y
30RC7Y, WINDHORST, HANNAFORD,
WHITNEY & HALLADAY
2300 FIRST NATL. BANK BLDG.
MINNEAPOLIS, MINNESOTA 55402
CONSENT AND SUBORDINATION
The undersigned, being the holder of a mortgage on
the Property as described in the Agreement (Conditions to
Parking Variance) to which this Consent and Subordination is
attached, which mortgage is dated January 16 , 19 73,
and recorded as Document No. 1062196 , in the office of the
_Registrar of Titles , Hennepin County, Minnesota, does hereby
agree and consent to all of the terms and conditions of the
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 and Lessee, as
defined in said Agreement, in the event it becomes the owner
of the Property.
FIRST NAT AL B OF MINNEAPOLIS
By /11��
Its Vic resident
And
I Assistan ice Presi ent
STATE OF Mynnaanta )
SS
COUNTY OF Npnncnin )
The foregoing Consent and Subordination was acknowl-
edged before me this 24th day of March , 19 80, by
Ten ,T_ Raiicl r and James R. Spevacek , respectively, of
FL i - r, t; ional Rank oFf Rinnea [� 1_ is, a eA�WQXxftdcoz, on behalf of
the corporation. national banking association
Notary ublic
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EXHIBIT "A"
Lots 1, 2 and 3, Block. y, Ycrk town, ac -ard "
to the plat thereof on file or of record in
the office of the Registrar of Titles in and
�j for said County.
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OFFICE OF THE REGISTRAR
OF TITLES
HENNEPIN COUNTY, MINNESOTA
CERTIFIED FILED ON
MAR 2 81980
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$EGISTRAR OF TITLES
BY, DEPUTY
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