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AGREEMENT
(Conditions to Parking Variance)
THIS AGREEMENT, Made and entered into this �_ day of
1988, by and between PLITT THEATRES, INC., a
_Dela are corporation ( "Corporation ") and CITY OF EDINA, a
Minnesota municipal corporation (the "City ");
WITNESSETH, THAT:
WHEREAS, The Corporation is the 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 Corporation proposes to reconstruct
( "Reconstruction ") the building of approximately 23,840 square
feet currently existing on the Property ( "Building "), which
Reconstruction is to accommodate an expansion of the current
use of the Building as and for a theatre or theatres for the
showing of motion picture films; and
WHEREAS, the Building would need an additional
ninety -three (93) parking spaces, following completion of the
proposed Reconstruction, to comply with the City's zoning
ordinances; and
WHEREAS, the Property, after completion of the
proposed Reconstruction to the Building will not be of
sufficient size to accommodate more parking spaces as required
by the zoning ordinances; and
WHEREAS, the City proposes to construct an addition to
the municipal parking ramp located adjacent to the Property and
the Corporation has agreed to pay a portion of the cost of
construction, pursuant to a Special Assessment Agreement
between the City and the Corporation of even date herewith
( "Assessment Agreement "); and
WHEREAS, the City, in consideration of the execution
of the Assessment Agreement and for other considerations, on
September 14, 1987, in Case No. P -87 -3, did grant the requested
variance (the "1987 Variance ") 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
TRANSFER ENTERED
DEPT, QF PROPERTY TAX & PUBLIC RECORDS
By
keeping with the spirit and intent of the applicable
ordinances, but the 1987 Variance 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, The Corporation is agreeable to the granting
of the 1987 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 1987 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 the 1987 Variance from its applicable ordinances
whereby no additional parking spaces need be constructed on the
Property, subject, however, to the terms and conditions of this
Agreement.
2. All of the portion of the Building which is
currently utilized for theatre purposes (being the southernmost
8700 square feet, more or less, of the ground level of the
Building), and all of the Reconstruction, shall be used
exclusively as and for a theatre or theatres for the showing of
motion picture films, or for a use which, under the then
applicable City ordinances, requires no more than 74 parking
spaces be available to the Property.
3. The Corporation, its successors and assigns, shall
fully comply with the terms and conditions of the Assessment
Agreement, including without limitation, complying with all
payment obligations of the assessment made pursuant to the
Assessment Agreement. If the Assessment Agreement becomes null
and void pursuant to its terms, or for any other reason
whatsoever, the 1987 Variance shall automatically terminate and
thereafter the Property shall only be used in full compliance
with all then applicable ordinances of the City.
4. The Corporation, as an additional condition to the
granting of the 1987 Variance and in connection with and
contemporaneous with the construction of the proposed
Reconstruction, shall promptly and diligently remove the paint
from portions of the Building pursuant to the plans prepared by
Kofman Engineering Services Limited, dated May 14, 1987 and
revised February 17, 1988 ( "Plans "). The Corporation shall
remove the paint by a method which is first approved in writing
by the City, which approval shall not be unreasonably withheld.
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0 '
5. If any term, condition, or provision of this
Agreement, or the application thereof to any person or
circumstance, shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of such
term, provision, and condition to persons or circumstances
other than those as to whom 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.
6. In the event that the Corporation, its successors
or assigns, fails or refuses to fully comply with all of its
obligations under this Agreement and under the Assessment
Agreement, 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 the Corporation, its
successors or assigns, 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 revoke the 1987 Variance, in
which case the Property shall be used only in full compliance
with all then applicable ordinances of the City.
The Corporation acknowledges that there are currently
74 parking spaces available to the Property and that this
number of spaces, but for the granting of the 1987 Variance,
would not comply with the applicable City ordinances following -
completion of the Reconstruction. Accordingly, and as further
consideration for the granting of the 1987 Variance, the
Corporation, for itself, its successors and assigns, hereby
waives and relinquishes any and all claims it will or may have
against the City by reason of the City's revocation of the 1987
Variance due to the Corporation's, or its successors' or
assigns', failure or refusal to comply with the obligations
contained in this Agreement, including, but not limited to,
claims arising from the inability to use the Property as now
improved and to be improved by the Reconstruction following the
revocation of the 1987 Variance because the number of parking
spaces available to the Property, based upon the then proposed
use, may not comply with the then applicable City ordinances.
Any 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 the
Corporation, shall not preclude City from thereafter exercising
any of its remedies for the same or a subsequent failure or
refusal. The Corporation, its successors and assigns, 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
-3-
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 interest on all such costs and
expenses at the rate of twelve percent (12 %) per annum from the
dates incurred by the City until paid.
The Corporation, its successors and assigns, also
agrees to pay all costs of collection of any monies due to the
City from the Corporation, its successors and assigns, pursuant
hereto, and of such costs and expenses incurred in enforcing
this Agreement, with interest thereon, again including
attorneys' fees and whether suit be brought or not, with
interest at the rate of twelve percent (12 %) per annum from the
dates such costs of collection were incurred until paid.
7. All notices, reports, or demands required or
permitted to be given under this Agreement shall be in writing
and shall be deemed to be given when personally delivered to
any officer of the party to which notice is being given, or
five (5) business days after it is deposited in the United
States or Canada mail in a sealed envelope, with registered or
certified mail postage prepaid thereon, addressed to the
parties at the following addresses:
To City:
To the Corporation:
4801 West 50th Street
Edina, Minnesota 55424
Attn: City Manager
Plitt Theatres, Inc.
1303 Yonge Street
Toronto, Ontario M4T2Y9
Attn: General Counsel
Such addresses may be changed by any party upon notice to the
other party given as herein provided.
8. The terms and provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and shall run with the title
to the Property and be binding upon all present and future
owners of the Property. If, for any reason, the provisions
hereof should be determined by the legal counsel for City, or
by a court of competent jurisdiction, not to be binding upon
and fully enforceable against any owner of all or any part of
the Property, then the 1987 Variance shall wholly cease and
terminate and the Property shall be used and useable only in
full compliance with all then applicable ordinances of the
City. If there be at any 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.
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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.
PLITT THEATRES, INC.
Bar..._
Its enior ice President
By
Its Sen -ef Vice President
CITY OF EDINA
By .
Its Mayor
is Manager
PROVINCE OF ONTARIO )
)SS.
JUDICIAL DISTRICT OF YORK)
The foregoing instrument was acknowledged before me
this '911H day of _hAI , 1988, by Peter H. Mandell and
David M. Allen, Senior Vice President i Theatres, Inc
a Delaware corporation, on behalf o -crzo ation. r
Notary Public
-5-
/Py
STATE OF MINNESOTA)
)SS.
COUNTY OF HENNEPIN)
The foregoin ' nstrument was acknowledged before me
t is = day of 1988, by4 � riFT and
,L' W',� -z- ?�5t � the Mayor and Manager, respectively, of the
City of Edina, a Minnesota municipal corporation, on behalf of
said munic '
G3 al
This instrument drafted by:
Dorsey & Whitney
2200 First Bank Place East
Minneapolis, Minnesota 55402
EXHIBIT A
All that part of Lot 45, Auditor's Subdivision Number 172,
described as follows:
Commencing at the Northwest corner of Lot 47, thence
South to the Southwest corner thereof; thence West
13.90,feet; thence South 1.10 feet; thence West 36.10
feet; thence South 2.40 feet; thence West to a point
7.00 feet East from the West line of Lot 45; thence
North 134.75 feet; thence West 4 feet; thence North to
the South line of West 50th Street; thence East 87
feet; thence South to beginning.
1
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EXHIBIT A
All that part of Lot 45, Auditor's Subdivision Number 172,
described as follows:
Commencing at the Northwest corner of Lot 47, thence
South to the Southwest corner thereof; thence West
13.90,feet; thence South 1.10 feet; thence West 36.10
feet; thence South 2.40 feet; thence West to a point
7.00 feet East from the West line of Lot 45; thence
North 134.75 feet; thence West 4 feet; thence North to
the South line of West 50th Street; thence East 87
feet; thence South to beginning.
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SPECIAL ASSESSMENT AGREEMENT
THIS AGREEMENT, Made and entered into this A day
of , 1988, by and between the CITY OF EDINA, a
Minnesota municipal corporation (the "City ") and PLITT
THEATRES, INC., a Delaware corporation (the "Corporation ").
It is hereby agreed by and between the parties hereto
as follows:
1. Corporation hereby petitions for construction of,
and in consideration of the undertaking by the City to
construct or cause to be constructed, an additional level, (the
"Addition ") resulting in approximately 111 new parking spaces,
to the municipal parking ramp on the south side of West 50th
Street between France and Halifax Avenues (the "South Side
Ramp "), Corporation agrees to an assessment against the
property of Corporation (the "Property ") described on Exhibit A
attached hereto and made a part hereof, pursuant to Minnesota
Statutes, Chapter 429, in an amount equal to the lesser of
i) thirty percent (30 %) of the actual cost of construction of
the Addition as determined by the City or ii) $240,000 (the
"Assessment Amount "). The Assessment Amount, with interest
thereon at 9% per annum, shall be assessed and be payable over
a period of 20 years commencing in 1989 or 1990 as the City
shall determine. Corporation waives and releases any and all
objections of every kind to such assessment, including without
limitation, waiver of notices and hearings required by
applicable statutes, and waiver of objections resulting from
failure to comply with any applicable statute, including,
without limitation, the failure to comply with any provision of
Minnesota Statutes, Chapter 429. Corporation also waives and
releases the right to appeal, pursuant to Minnesota Statutes,
Section 429.081, from such assessment. For purposes of this
Agreement, actual costs of construction of the Addition shall
include all cost items normally included by the City in
determining the cost of an improvement for the purpose of
levying a special assessment, including, without limitation,
architect's and engineer's fees (including the City Engineer's
Fee) and interest.
2. Once the Addition is constructed, the City intends
to operate the South Side Ramp, or cause it to be operated, as
and for a public parking facility. However, City makes no
agreement or representation concerning the time of completion
of the Addition or that the Addition or the South Side Ramp
TRANSFU ENTERED
OFPT. OF PROPERTY TAX & PUBLIC RECORDS
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will be maintained for public use or in public ownership.
Notwithstanding any such cessation of public use or ownership,
the assessment levied by City pursuant hereto shall remain a
valid and enforceable lien against the property of Corporation.
3. This Agreement is contingent upon Corporation
obtaining a building permit from the City no later than June 3,
1988 which allows Corporation to construct the Reconstruction,
as defined in the Agreement (Conditions to Parking Variance) of
even date herewith between the City and Corporation. If this
contingency is not satisfied on or before June 3, 1988, this
Agreement shall be null and void and thereafter neither party
shall have any further obligation or liability hereunder. The
City agrees not to unreasonably delay issuance of such building
permit once application for such permit is duly and fully made
by Corporation.
4. The provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. This Agreement may be filed or
recorded against the real property described in Exhibit A
attached with the party who chooses to file or record the
document bearing the cost of filing or recording.
CITY OF EDINA
By _�_ Lif
Its Mayor
And
Its Manager
PLITT ATRES, INC.
By
Its nior V' a President
And A
Its 5 ft+0-f Vice President
-2-
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregging instrument was ac nowledged before me
this day of j , 1988, by and
as Mayor and Manager of the CITY OF fI—NA,
Minne ota municipal corporation, on behalf of the corporation. a
6 3'ri l
PROVINCE OF ONTARIO )
JUDICIAL DISTRICT OF YORK) ss
The foregoing instrument was acknowledged before me
this 9-TH day of _ YIA'1 1 1988, by Peter H. Mandell and
David M. Allen, Senior Vice Presidents o TT EATRES, INC., '
a Delaware corporation, on behalf of t r o t on.
DRAFTED BY:
Dorsey & Whitney
2200 First Bank Place East
Minneapolis, Minnesota 55402
Notary Public
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�
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EXHIBIT A
All that part of Lot 45, Auditor's Subdivision Number 172,
described as follows:
Commencing at the Northwest dorner of Lot 47, thence
South to the Southwest corner thereof; thence West
13.90 feet; thence South 1.10 feet; thence West 36.10
feet; thence South 2.40 feet; thence West to a point
7.00 feet East from the West line of Lot 45; thence
North 134.75 feet; thence West 4 feet; thence North to
the South line of West 50th Street; thence East 87
feet; thence South to beginning.
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541
Z 3.3 J
PERMIT FOR
STREET ENCROACHMENT
THIS PERMIT, is made and given by the City of Edina, a
Minnesota municipal corporation ( "City ") to Plitt Theatres,
Inc., a Delaware corporation ( "Permittee ") and is effective as
of the date of execution by the City as indicated below.
WHEREAS, Permittee is the 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 made a part hereof; and
WHEREAS, Permittee proposes to reconstruct
( "Reconstruction ") the building currently existing on the
Property ( "Building ") (the Building and Reconstruction
hereinafter collectively shall be referred to as
"Improvements "), which Reconstruction is to accomodate an
expansion of the current use of the Building as and for a
theatre or theatres for the showing of motion picture films; and
WHEREAS, the Improvements encroach onto the City's
right of way for West 50th Street ( "Street "); and
WHEREAS, the City's approval of the Reconstruction,
subject to the terms and conditions,of the Agreement
(conditions to parking variance) ( "Parking Variance Agreement ")
and the Special Assessment Agreement, both of even date
herewith, between the City and Permittee is conditioned upon
the execution and delivery of this Permit.
NOW, THEREFORE, in consideration of the covenants and
agreements herein made by Permittee, and subject to the terms
and conditions.herein, the City hereby authorizes and permits
the Improvements to encroach upon the portion of the Street
described on Exhibit B attached hereto and made a part hereof
(that portion of the Improvements which is hereby authorized to
encroach upon the Street is hereinafter referred to as
"Encroachment "), subject to the following:
1. This Permit shall automatically terminate upon the
earliest of (a) all of the portion of the Building which is
currently utilized for theatre purposes (being the southernmost
8700 square feet, more or less, of the-ground level of the
Building), and all of the Reconstruction, ceasing to be used
exclusively as and for a theatre or theatres for the showing of
motion picture films, or for a use which, under the then
applicable City ordinances requires no more than 74 parking
spaces be available to the Property; or (b) the voluntary or
involuntary demolition, destruction or removal of the
Improvements; (c) termination pursuant to paragraph 4 hereof;
or (d) the Parking Variance Agreement and /or the Special
Assessment Agreement becoming null and void. Upon termination
of this Permit pursuant to (a), (c) or (d), the Encroachment
shall be removed from the Street within thirty (30) days after
written notice is given to Permittee by the City.
2. Permittee shall be solely responsible for
repairing the Encroachment and maintaining the same at all
times in a good and safe condition, and in a manner which is
reasonably acceptable to the City.
3. Permittee, its successors and assigns shall
indemnify and hold the City, the Housing and Redevelopment
Authority of Edina, Minnesota ( "H.R.A. ") and their respective
officers, officials, commissioners, agents; employees and
representatives, harmless from any and all claims, demands,
damages, costs and expenses, including, without limitation,
reasonable attorney's fees for the defense thereof, arising out
of or in connection with the Encroachment, or repair,
maintenance, or removal thereof, and Permittee, its successors
and assigns, agrees to pay to the City and the H.R.A., and any
of their respective officers, officials, commissioners, agents,
employees and representatives, upon demand, any such cost,
damage or expense, including reasonable attorney's fees,
suffered or incurred by the City, the H.R.A., and any of their
respective officers, officials, commissioners, agents,
employees or representatives, with interest at the rate of
twelve percent (12 %) per annum from the date demanded until
paid. Permittee also agrees to pay all costs of collection of
any monies due to the City, the H.R.A. or any of their
respective officers, officials, commissioners, agents,
employees and representatives )t.uLzuant hereto, including
attorney's fees whether suit be brought or not, with interest
at the rate of twelve percent (12 %) per annum from the dates
such costs of collection were incurred until paid.
4. If Permittee fails or refuses to fully comply with
all of its obligations herein, 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 Permittee, 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) Terminate this Permit upon written notice given
to Permittee, in which case the Encroachment shall be removed
from the Street within thirty (30) days after the giving of
such notice by the City;
(b) Enter upon the Property with such personnel,
equipment, and materials as the City deems necessary for the
purpose of performing the obligations of Permittee hereunder
-2-
that it has failed or refused to perform, or, at the City's
discretion, for the purpose of repairing, maintaining, or
removing the Encroachment, without liability or obligation of
any kind to Permittee 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 Permittee, and if
any person makes any claim against City for loss or damage to
property or business due to such entry, Permittee agrees to
hold City harmless from and indemnified against any loss, cost,
damage or expense, including attorneys' fees whether suit be
brought or not, arising out of such claim, and to pay to City,
upon demand of City, any such loss, cost, damage or expense,
including attorneys' fees, suffered or incurred by City, with
interest at twelve percent (12 %) per annum from the date
demanded until paid.
(c) Obtain enforcement of the obligations herein 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 or to be 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 Permittee fully 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
remedv hereunder in the event of a failure or refusal by
Permittee, shall not preclude City from thereafter exercising
any of its remedies for the same or a subsequent failure or
refusal. Permittee agrees to pay to City any and all costs and
expenses incurred by City in enforcing this Permit 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 interest on all
such costs and expenses at the rate of twelve percent (12 %) per
annum from the dates incurred by the City until paid.
Permittee also agrees to pay all costs of collection
of any monies,due to the City from Permittee pursuant hereto,
and of such costs and expenses incurred in enforcing this
Permit, with interest thereon, again including attorneys' fees
-3-
and whether suit be brought or not, with interest at the rate
of twelve percent (12 %) per annum from the dates such costs of
collection were incurred until paid.
5. All notices, reports, or demands required or
permitted to be given under this Permit 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 five
(5) business days after it is deposited in the United States or
Canada 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 Permittee: Plitt Theatres, Inc.
1303 Yonge Street
Toronto, Ontario M4T2Y9
Attention: General Counsel
Such addresses may be changed by any 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.
PLITT_TAE)ATRES, INC.
By r
Its gnior)Vice President
By ( V !2s aV
Its 'Svf-i-&t ice President
CITY OF EDINA
By:
By:
-4-
PROVINCE OF ONTARIO )
) ss.
JUDICIAL DISTRICT OF YORK)
The foregoing instrument was acknowledged before me
this �Ly_ day of Mali , 1988, by Peter H. Mandell and
David M. Allen, Senior Vice Presidents of,Plitt Theatres, Inc,.,
a Delaware corporation, on behalf of said cc -r ora-Elon. a ��u^ ► ''
ary'Public
STATE OF MINNESOTA )' k ����
s s .'
COUNTY OF HENNEPIN ) ;,, .
The foreg i g instrument was a knoaled ed before me
this i; day of ����. 1988, by �-g,
and �o Jfy7 �= ,L�c cr�i� the Mayor and Manage,-,'' ` ITY
OF EDINA, a municipal corporation, on behalf of..
Edina. <,
JARLENE J. SKA E f
;RY PUBLIC - MIR'NE ., f,�' ;"�,�'', , ' ` •rf ,: .
COLINTY No ary,�
This Instrument Drafted By:
Dorsey & Whitney(JES)
2200 First Bank Place East
Minneapolis, MN 55402
(612) 340 -2600
-5-
r
PROVINCE OF ONTARIO )
) ss.
JUDICIAL DISTRICT OF YORK)
The foregoing instrument was acknowledged before me
this �Ly_ day of Mali , 1988, by Peter H. Mandell and
David M. Allen, Senior Vice Presidents of,Plitt Theatres, Inc,.,
a Delaware corporation, on behalf of said cc -r ora-Elon. a ��u^ ► ''
ary'Public
STATE OF MINNESOTA )' k ����
s s .'
COUNTY OF HENNEPIN ) ;,, .
The foreg i g instrument was a knoaled ed before me
this i; day of ����. 1988, by �-g,
and �o Jfy7 �= ,L�c cr�i� the Mayor and Manage,-,'' ` ITY
OF EDINA, a municipal corporation, on behalf of..
Edina. <,
JARLENE J. SKA E f
;RY PUBLIC - MIR'NE ., f,�' ;"�,�'', , ' ` •rf ,: .
COLINTY No ary,�
This Instrument Drafted By:
Dorsey & Whitney(JES)
2200 First Bank Place East
Minneapolis, MN 55402
(612) 340 -2600
-5-
EXHIBIT A
All that part of Lot 45, Auditor's Subdivision Number 172,
described as follows:
Commencing at the Northwest corner of Lot 47, thence
South to the Southwest corner thereof; thence West
13.90 feet; thence South 1.10 feet; thence West 36.10
feet; thence South 2.40 feet; thence West to a point
7.00 feet East from the West line of Lot 45; thence
North 134.75 feet; thence West 4 feet; thence North to
the South line of West 50th Street; thence East 87
feet; thence South to beginning.
� 0
EXHIBIT A
All that part of Lot 45, Auditor's Subdivision Number 172,
described as follows:
Commencing at the Northwest corner of Lot 47, thence
South to the Southwest corner thereof; thence West
13.90 feet; thence South 1.10 feet; thence West 36.10
feet; thence South 2.40 feet; thence West to a point
7.00 feet East from the West line of Lot 45; thence
North 134.75 feet; thence West 4 feet; thence North to
the South line of West 50th Street; thence East 87
feet; thence South to beginning.
EXHIBIT B
Description of Encroachment
That part of West 50th Street described as commencing at the intersection of
the northerly extension of the east line of the west 3.00 feet of Lot 45,
AUDITORS SUBDIVISION NO. 172, according to the recorded plat thereof, Hennepin
County, Minnesota, with a line 33.00 feet southerly of and parallel with the
north line of the Northeast Quarter of the Southeast Quarter of Section 18,
Township 28, Range 24, Hennepin County, Minnesota; thence easterly, parallel
with said north line of the Northeast Quarter of the Southeast Quarter of
Section 18, a distance of 8.58 feet to the point of beginning of the land to
be described; thence easterly, deflecting to the left 0 degrees 12 minutes
21 seconds,a distance of 19.36 feet; thence northerly, deflecting to the left
90 degrees 00 minutes 00 seconds, a distance of 0.22 feet; thence easterly,
deflecting to the right 90 degrees 00 minutes 00 seconds,a distance of 2.90
feet; thence southerly,deflecting to the right 90 degrees 00 minutes 00 seconds,
a distance of 0.30 feet to said line distant 33.00 feet southerly of and
parallel with the north line of the Northeast Quarter of the Southeast Quarter
of Section 18, said point hereinafter referred to as "Point A "; thence westerly
a distance of 22.26 feet to the point of beginning.
And
That part of said West 50th Street described as commencing at said "Point A ";
thence easterly, parallel with said north line of the Northeast Quarter of
the Southeast Quarter of Section 16, a distance of 25.45 feet to the point
of beginning of the land to be described; thence northerly, deflecting to the
left 90 degrees 17 minutes 52 seconds,a distance of 0.45 feet; thence easterly,
deflecting to the right 90 degrees 00 minutes 00 seconds,a distance of 3.15
feet; thence southerly, deflecting to the right 90 degrees 00 minutes 00 seconds
a distance of 0.24 feet; thence easterly, deflecting to the left 90 degrees
00 minutes 00 seconds,a distance of 27.65 feet; thence southerly, deflecting
to the right 90 degrees 00 minutes 00 seconds,a distance of 0.37 feet to said
line distant 33.00 feet southerly of and parallel with the north line of the
Northeast Quarter of the Southeast Quarter of Section 18; thence westerly a
distance of 30.80 feet to the point of beginning.
2
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f23MAY8815: 11
$10.50
FTF
CF COON i Y RE CDI ROE
I Ht % SL ) cc u s I Y, m %Svso T"
CERTIFIEC FILED ANO OR
RECGRVEO ON
1988 MAY 23 PM 3: 5,8
5412156
REC FEE
COPY FEE.
&?q 45WX -N 6
U
5414216
PERMIT FOR
WALKWAY ENCROACHMENT
THIS PERMIT, is made and given by the City of Edina, a
Minnesota municipal corporation ( "City ") to Plitt Theatres,
Inc., a Delaware corporation ( "Permittee ") and is effective as
of the date of execution by the City as indicated below.
WHEREAS, Permittee is the 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 made a part hereof; and
WHEREAS, Permittee proposes to reconstruct
( "Reconstruction ") the building currently existing on the
Property ( "Building ") (the Building and Reconstruction
hereinafter collectively shall be referred to as
"Improvements "), which Reconstruction is to accomodate an
expansion of the current use of the Building as and for a
theatre or theatres for the showing of motion picture films; and
WHEREAS, when completed, the Improvements will
encroach onto a walkway easement created by an instrument dated
June 20, 1977, recorded June 23, 1977 in the office of the
County Recorder, Hennepin County, Minnesota, as Document No.
4294177 ( "Walkway Easement ") which runs to the benefit of the
City and which is described on Exhibit B attached hereto and
made a part hereof; and
WHEREAS, the City's approval of the Reconstruction,
subject to the terms and conditions of the Agreement
(conditions to parking variance) ( "Parking Variance Agreement ")
and the Special Assessment Agreement, both of even date
herewith, between the City and Permittee is conditioned upon
the execution and delivery of this Permit.
NOW, THEREFORE, in consideration of the covenants and
agreements herein made by Permittee, and subject to the terms
and conditions herein, the City hereby authorizes and permits
the Improvements to encroach upon the portion of the Walkway
Easement described on Exhibit C attached hereto and made a part
hereof (that portion of the Improvements which is hereby
authorized to encroach upon the Walkway Easement is hereinafter
referred to as "Encroachment "), subject to the following:
1. This Permit shall automatically terminate upon the
earliest of (a) all of the portion of the Building which is
currently utilized for theatre purposes (being the southernmost
8700 square feet, more or less, of the ground level of the
Building), and all of the Reconstruction, ceasing to be used
TRANSFER ENTERED
DEPT. Of PROPERTY TAX & PUBLIC RECORDS
'i
COUNTY MINN.
Y DEPUTY
K
exclusively as and for a theatre or theatres for the showing of
motion picture films, or for a use which, under the then
applicable City ordinances, requires no more than 74 parking
spaces be available to the Property; or (b) the voluntary or
involuntary demolition, destruction or removal of the
Improvements; (c) termination pursuant to paragraph 4 hereof;
or (d) the Parking Variance Agreement and /or the Special
Assessment Agreement becoming null and void. Upon termination
of this Permit pursuant to (a), (c) or (d), the Encroachment
shall be removed from the Walkway Easement within thirty (30)
days after written notice is given to Permittee by the City.
2. Permittee shall be solely responsible for
repairing the Encroachment and maintaining the same at all
times in a good and safe condition, and in such manner as not
to interfere with the use of the Walkway Easement and which is
reasonably acceptable to the City.
3. Permittee, its successors and assigns shall
indemnify and hold the City, the Housing and Redevelopment
Authority of Edina, Minnesota ( "H.R.A. ") and their respective
officers, officials, commissioners, agents, employees and
representatives, harmless from any and all claims, demands,
damages, costs and expenses, including, without limitation,
reasonable attorney's fees for the defense thereof, arising out
of or in connection with the Encroachment, or the construction,
repair, maintenance, or removal thereof, and Permittee, its
successors and assigns, agrees to pay to the City and the
H.R.A., and any -,f, their respective officerF, officials,
commissioners, agents, employees and representatives, upon
demand, any such cost, damage or expense, including reasonable
attorney's fees, suffered or incurred by the City, the H.R.A.,
and any of their respective officers, officials, commissioners,
agents, employees or representatives, with interest at the rate
of twelve percent (12 %) per annum from the date demanded until
paid. Permittee also agrees to pay all costs of collection of
any monies due to the City, the H.R.A. or any of their
respective officers, officials, commissioners, agents,
employees and representatives pursuant hereto, including
attorney's fees whether suit be brought or not, with interest
at the rate of twelve percent (12 %) per annum from the dates
such costs of collection were incurred until paid.
4. If Permittee fails or refuses to fully comply with
all of its obligations herein, 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 Permittee, 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:
-2-
(a) Terminate this Permit upon written notice given
to Permittee, in which case the Encroachment shall be removed
from the Walkway Easement within thirty (30) days after the
giving of such notice by the City;
(b) Enter upon the Property with such personnel,
equipment, and materials as the City deems necessary for the
purpose of performing the obligations of Permittee hereunder
that it has failed or refused to perform, or, at the City's
discretion, for the purpose of repairing, maintaining, or
removing the Encroachment, without liability or obligation of
any kind to Permittee 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 Permittee, and if
any person makes any claim against City for loss or damage to
property or business due to such entry, Permittee agrees to
hold City harmless from and indemnified against any loss, cost,
damage or expense, including attorneys' fees whether suit be
brought or not, arising out of such claim, and to pay to City,
upon demand of City, any such loss, cost, damage or expense,
including attorneys' fees, suffered or incurred by City, with
interest at twelve percent (12 %) per annum from the date
demanded until paid.
(c) Obtain enforcement of the obligations herein 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 or to be 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 Permittee fully 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
Permittee, shall not preclude City from thereafter exercising
any of its remedies for the same or a subsequent fail
refusal. Permittee agrees t o
expenses incurred by City in
of the remedies above set out
available to the City at law
fees whether suit be brought
%A W&
pay to City any and all costs and
enforcing this Permit by the use
or by other remedies or means
or in equity, including attorneys'
or not, and with interest on all
-3-
such costs and expenses at the rate of twelve percent (12 %) per
annum from the dates incurred by the City until paid.
Permittee also agrees to pay all costs of collection
of any monies due to the City from Permittee pursuant hereto,
and of such costs and expenses incurred in enforcing this
Permit, with interest thereon, again including attorneys' fees
and whether suit be brought or not, with interest at the rate
of twelve percent (12 %) per annum from the dates such costs of
collection were incurred until paid.
5. All notices, reports, or demands required or
permitted to be given under this Permit 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 five
(5) business days after it is deposited in the United States or
Canada 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
Attn: City Manager
To Permittee: Plitt Theatres, Inc.
1303 Yonge Street
Toronto, Ontario M4T2Y9'
Such addresses may be changed by any party upon notice to the
other party given as herein provivad.
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.
Date: Mee q 8 A000 PLITT =RES, INC.
By
Its nior V e President
By VV\J
Its Sen' ice President
-4-
Date:
y �- � 5 gY
CITY OF EDINA
By L. * /
Its Mayo
By
PROVINCE OF ONTARIO
) ss.
JUDICIAL DISTRICT OF YORK)
The foregoing instrument was acknowledged before me
this
-118- day of - hAl 1988, by Peter H. Mandell and
David M. Allen, Senior Vice Presidents of P1 tt Thea res,.Inc.,,',
a Delaware corporation, on behalf of said cbr aorntone
NAar Public
STATE OF MINNESOTA
ss.
CjUNTY OF HENNEPIN
The for Minstrument was a:knowled ed before me
this -5 day of 1988, by
and the Mayor and Manager of the CITY OF
EDINA, a municipal corporation, on behalf of fh- City of Edina.
z 1 771"71
DARLENE J. S P
NOTe',RV OLIC - MIN�A
COUNTY
This Instrument Drafted By:
Dorsey & Whitney(JES)
2200 First Bank Place East
Minneapolis, MN 55402
(612) 340-2600
-5-
Notarf Public
EXHIBIT A
All that part of Lot 45, Auditor's Subdivision Number 172,
described as follows:
Commencing at the Northwest corner of Lot 47, thence
South to the Southwest corner thereof; thence West
13.90 feet; thence South 1.10 feet; thence West 36.10
feet; thence South 2.40 feet; thence West to a point
7.00 feet East from the West line of Lot 45; thence
North 134.75 feet; thence West 4 feet; thence North to
the South line of West 50th Street; thence East 87
feet; thence South to beginning.
r'
EXHIBIT B
That part of Lot 45, Auditor's Subdivision No. 172, Hennepin
County, Minnesota, described as follows:
Commencing at the northwest corner of Lot 47, said Auditor's
Subdivision, thence southerly along the west line of said Lot
47 to a point 5.38 feet north from the southwest corner of said
Lot 47, said point being the point of beginning of the land
herein described; thence southerly to the southwest corner of
said Lot 47, thence west 13.90 feet parallel with the north
line of said Lot 45; thence south 1.10 feet parallel with the
east line of said Lot 45; thence west 2.84 feet parallel with
said north line; thence northeasterly to the point of beginning,
• 'V,
EXHIBIT C
Description of Encroachment
That part of Lot 45, Auditor's Subdivision No. 172, Hennepin
County, Minnesota; described as follows:
Commencing at the northwest corner of Lot 47, said
Auditor's Subdivision; thence southerly along the west
line of said Lot 47 to a point 5.38 feet north from the
southwest corner of said Lot 47, said point being the
point of beginning of the land herein described; thence
southerly to the southwest corner of said Lot 47;
thence west 13.90 feet parallel with the north line of
said Lot 45; thence south 1.10 feet parallel with the
east line of said Lot 45; thence west 2.84 feet
parallel with said north line; thence northeasterly to
the point of beginning
which lies westerly of a line distant 0.85 feet westerly of and
parallel with said west line of Lot 47 and which lies above
elevation 887.48 National Geodetic Vertical Datum, 1929
Adjustment.
5414216
z 13,3 7
27MAY8810:42 C5414216 DOC $10.50
jFf iCi, '-f C�US! Y �L=470E�
PIN COUNT Y. MtN%
�
CERNIIEC FILED •40 OR
RECORDED ON
1988 MAY AM 10:45
A k".: #5414216
COPY FEE
S6, , ry) C (. L r - ra r 2e �c .34S