HomeMy WebLinkAbout261501/28/2005 13:16•FAX 6123402644 DORSEY & WHITNEY LLP
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PERMIT FOR
STREET ENCROACHMENT
IS PERMIT, is made and given by the City of Edina, a
Minnesota Municipal corporation (•City ") to Plitt Theatres,
Inc., a Delaware corporation ( "penitteeo) and is effective as
Of the date of execution by the City as indicated below.
EAS, 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
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TMRF.AS, 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 aceomodate 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 w I y for fast 50th Street ( "Street'); and
WHMZ'r.S, 'the City's approval of the Reconstruction,
subject to the terms and conditiona,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.
parr ThMUr-FORE, in consideration of the covenants and
agreements Lerein 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 port on:of the Improvements which is hereby authorized to
encroach upon tha Street is hereinafter referred to as
'Encroac rat"), subject to the following:
I. 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, Blare or lass, of the ground level of the
Building), and all of the Reco:istruction, ceasing.to be used
ftzclusively 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 vai.lable to the Property; or (b) the voluntary or
involuntar 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
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of this Permit pursuant to (a), (c) or (d), the Encroachment
Shall be removed from the street Within thirty (30) days after
written no Ice is given to Permittee by the City.
2. Permittee shall be solely responsible for
repairing he 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.
I
30 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 fficers, officials, commissioners, agents,
employees 0: 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 B.R.A. or any of their
respective officers, officials, commissioners, agents,
employees a d 'reprlesertatAies jeu&,audnr 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.
g. if Permittee fails or refuses to fully comply with
all of its obligations herein, or violates any of the
provision:04elemitte6, 4eroof, and such failure, refusal or violation
continues for a period of thirty (30) days after notice thereof
is given 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 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
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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 tresp6ss 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 pers n makes any claim against City for loss or damage to
property or business due to such entry, Permittee agrees to
hold Cit 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 demanit 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 or er For mandatory injunction or other appropriate
relief; nd
(d) withhold, deny, or revoke any building permits,
certificates of occupancy, utility connection permits and any
other permits and dpp =ovals, issued or granted or to be issued
or granted by the City for the construction or occupancy of all
or any part of t ;he Improvements, until such failure or refusal
ends and Permittee fully complies with its obligations
hs ,rounder
411 of the foregoing remedies shall be usable and
enforceable by tine City separately or concurrently as the City
shall detOrmine, and the use of one remedy shall not waive or
preclude the use of any one or mote of the other remedies.
Also, the failure to exercise, or delay in exercising, any
remedy helreunder 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.$neurred by City in enforcing this Permit by the use
of the remedies above set out or by other remedies or means
availableto the.City at laic or in equity, including attorneys'
fees whether suit be brought or not, and with interest on all
such costa and expenses at the rate of twelve percent (12 %) per
annum from the dates incurred by the City until pair].
Permittee also agrees to pay all costs of collecl-ion
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
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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 n a sealed envelope, with registered or Certified
mail posta prepaid thereon, addressed to the parties at the
following addresses:
To City: 4901 West 50th Street
Edina, Minnesota 55424
Attention: City Manager
Tq Permittee: Plitt Theatres, Inc.
1303 Yonge Street
Toronto,,Onterio M4T2Y9
Attention: General Counsel
Such addreslses 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 injure to the benefit of the parties hereto and their
respective Ouccessors and assigns.
PLITT ,TR£S, INC.
Its nior ice President
Its Sice President
CITY OF EAINA
SY�i P
Its Mayo
By:
r t9 Mang
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DORSEY & WHITNEY LLP
PROVINCE OF PSTAILIO )
S.M.
JUDICIAL DI51TRICT OF YORK)
The foregoing instrument was acknowledged before me
this .9^-1W day of Al , 1988, by Peter Be Mandell and
•�• David M. Allen, senior vice Presidents of litt Theatres, In
a Delaware corporation, on behalf of said' c o on. '
IS tary'Publict
STATE OF MI NEBOTA
COUNTY OF NINEPIN ) err
The fore instrument was a knomledged before me
this 157f- day of , 1388, by ' '
and the Mayor and Managex
OF EDINA, a municipal corporation, on behalf of -g, A •
Edina.
., 'JAP.I�NE J. SKA E fG.G.'...Jr -E. -� '/ '..: • .'=
1'Cti'il.7`' hM1,UC - KjM i '
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COUNTY
,
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This Instruipent Drafted By:
Dorsey & whi.tney('JES)
2200 First D &nk Place East
Minneapo'lisx 'MN 55402
(612) 340 -2000
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DORSEY & WHITNEY LLP
EXHIBIT A
All that pars: of Lot 45, Auditor's Subdivision Number 1721
' described as follows:
Gomencing at the Northwest corner of Lot 47, thence
So th t10 the Southwest corner thereof; thence West
f t• th Ce West 36 10
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13.90 feet; thence South 1.10 ee , en
fe t; thence South 7.40 feet; thence West to a point
7, o feet East from the West line of Lot 45; thence
Voith 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 hest 50th Street described as commencing at the intersection of
the northerly lIextension of the east line of the west 3.00 feet of Lot 45,
AUDITORS SUBDI,,VISION 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, �ange 24, Hennepin County, Minnesota; thence easterly, parallel
with said north line of the Northeast Quarter of the Southeast Quarter 0
Section 18, a' distance of 8.58 feet to the point of beginning of the land to
be described; thence easterly, deflecting to tre 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
-fast; 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 16 paid 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 lard to be described; thence northerly, deflecting to the
left 90 degr es 17 winutes 52 seconds,a distance of D.45 feet; thefte easterly,
deflecting t0 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 q.24 feet; thence easterly, deflecting to the left 90 degrees
00 minutes 0 seconds,a distance of 27.66 feet; thence southerly, deflecting
to the right 90 decrees 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.
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