Loading...
1998-11-17 Draft # 2 DA`+ DRAFT #2 November 17,1998 DEVELOPER'S~PLANNED ITNIT DEVELOPMENT AGREEMENT Minneapolis Factory Shoppes THIS AGREEMENT, entered into this day of , 1998 by and between Albertville Factory Outlets, LLC, a Michigan Limited Liability Company. (hereinafter `Developer') and the CITY OF ALBERTVII.,LE, a municipal corporation organized under the laws of the State of Minnesota (hereinafter `City'), all of which are collectively referred to herein as `the Parties'; WI1'NESSETH: WHEREAS, Developer is the fee owner and developer of a parcel or parcels of land described in Exhibit "A", attached hereto and incorporated herein by reference, a portion of which parcels of land are proposed to be subdivided and platted for development', and which subdivision plat, which is the subject of this agreement, is intended to bear the name "Minneapolis Factory Shoppes" and may sometimes hereinafter be referred to as the "Subject Property' or "Said Plat"; and WHEREAS, Developer has applied for a Planned Unit Development ("PUD") to be established on Said Plat; and WHEREAS, the City has given final approval of Developer's plat and Developer's PUD request of Minneapolis Factory Shoppes contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain public improvements including, but not limited to, municipal water and street improvements, including the installation of a semaphore traffic signal (hereafter "Municipal Improvements") be installed to serve the Subject Property and other properties affected by the development of Developer's land, to be installed and financed by Developer; WHEREAS, the City fiuther requires that certain on- and off-site improvements be installed by the Developer within the Subject Property, which improvements consist of landscaping, grading, sanitary sewer, private drive, storm water ponding and storm sewer, wetland mitigation, street signs, street cleanup during project development, erosion control, and other site-related items; and 1 • WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the Parties and subsequent owners, the understandings and agreements of the parties concerning the development of the Subject Property, including the rights and obligations of the respective parties; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and covenants herein set forth, as follows: 1. Construction of Municipal Improvements. A. The Developer shall construct those Municipal Improvements located on Said Plat as detailed in the Feasibility Study for Minneapolis Factory Shoppes, as prepared by ,dated and attached hereto as Exhibit ,said improvements to include installation of water mains, semaphore stop lights, turn lanes, acceleration lanes. All such required street improvements shall be constructed in accordance with Wright County Highway standards and shall be consistent with the improvements described in that letter from the Wright County Highway Department to ,dated The watermain shall be constructed in accordance with the plans and specifications attached hereto as Exhibit .The City Engineer shall inspect all said Municipal Improvements on regular basis. Said improvements shall be installed by , 2000.. B. The Developer warrants to the City for a period of two years from the date the City accepts the project that all such improvements have been constructed to City standards and shall suffer no significant impairments, either to the structure or to the surface or other usable areas due to improper construction, said warranty to apply both to poor materials and faulty workmanship. C. Prior to the commencement of construction, Developer shall provide the City with evidence of good and marketable title to all of Subject Property. Evidence of good and marketable title shall consist of a Title Insurance Policy or Commitment from a national title insurance company, or an abstract of title updated by an abstract company registered under the laws of the State of Minnesota. D. Developer shall provide the City with lien waivers from all contractors and subcontractors engaged to construct said Municipal Improvements. E. Developer shall acquire all necessary permits required for the improvements • 2 • contemplated herein. The costs of the said permits shall be the responsibility of the Developer. 2. Construction of On- and Off-Site Improvements. A. Developer shall construct all on- and off-site improvements including installation of boulevards, top soil and sod, trees, grading control, bituminous or concrete parking lot and loading areas, curbing surrounding the ponds abutting the parking lot, drainage swales, ponding, berming, street cleanup, wetland mitigation, and like items as necessary, during project development, and erosion control, all as detailed in attached Exhibits and Said on- and off-site improvements shall be installed by , 2000 with the exception of erosion control, which shall be installed upon initial grading of the Plat. Developer shall also comply with the landscaping plan attached hereto as Exhibit B. Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground, accessible to all lots and in compliance with all applicable state and local regulations: i. Electrical power supply, to be provided by Northern States Power or other such carrier; ii. Natural gas supply, to be provided by Minnegasco or other such carrier; iii. Telephone service, to be provided by United Telephone Company or other such carrier; C. Developer has submitted a utility plan for Said Plat showing all existing and proposed utility lines and easements, Said utility plan is attached and as Exhibit hereto. Developer agrees to install all utilities according to this plan. D. Street lights shall be owned, installed, operated and maintained by the electric utility company, at Developer's expense if the electric utility company charges for said installation. The Developer is responsible for the placement of said street lights at those locations designated by the City Engineer. E. Developer shall install semaphore traffic signals at the intersection of Wright County Highway No. 19 and the private drive entrance to Said Plat at such time as the Wright County Highway Department or the Wright County Board r1 l__I 3 determines that traffic levels warrant the installation of said traffic signals. Said installation shall be at Developer's sole cost, and shall be of a type of semaphore and installed in the manner as prescribed by the Wright County Highway Engineer and the City Engineer. F. Developer shall provide an on site storm water holding pond as shown on the attached Exhibit .Developer shall be responsible for maintaining said storm water holding pond at all times. 3. Intended Use of Property. It is the Developer's and City's intent that up to three buildings containing retail "factory outlet" shops be constructed on Lot 1, Block 1 in Said Plat. Developer agrees that it shall not construct any units other than said outlet shops on Lot 1, Block 1, and also agrees that said construction shall be subject to the following restrictions: A. The City hereby establishes a Planned Unit Development (PUD) on Said Plat, subject to the terms and conditions contained in this Agreement. B. Developer shall construct only those buildings as shown on the attached Exhibit on said Lot 1, Blcokl. Said buildings shall be constructed in substantially the same size, shape and location as shown on the attached Exhibit .The buildings shall be constructed in substantial conformity to the Building elevations prepared by dated 1998 and on file with the City Clerk. C. The uses permitted on Lot 1, Block 1 shall be that of retail sales, restaurants and related retail uses generally found in retail factory outlet developments. D. Lot 1, Block 1 shall be landscaped in accordance with the attached landscape plan attached and incorporated herein as Exhibit .All outlots shall be seeded to prevent soil erosion, except areas previously delineated as wetlands, which shall be addressed in accordance with that wetland plan approved by the Wright County Soil and Water Conservation District on , 1998. E. The main entrance driveway connecting to Wright County Highway No. 19 shall remain a private driveway. Developer shall maintain said driveway in a "reasonably commercial manner" such that the driveway is paved and plowed at all times. The Developer shall pay all costs of all such maintenance. As part 4 of its covenants and restrictions, Developer shall record a reciprocal easement running in favor of all current and future lots in Said Plat allowing reasonable ingress and egress from said private drive to said lots. Said reciprocal easement must meet the approval of the City Attorney. F. Outlots B, C, D, and E shall remain non-buildable until said lots are replatted into lots and blocks, and shall be the subject of separate developer's agreements governing their development. Upon replatting into lots and blocks, Developer shall be allowed to use said outlots for the following uses: i. Drive-in convenience food store; ii. Truck stop; iii. Convenience store with gasoline sales; iv. Fast-food restaurant; v. Sit-down restaurant; vi. Any retail establishment permitted in the City's B-3 zoning district; G. Developer agrees that it shall, upon platting of each outlot into a numbered lot and block, provide to each re-platted lot an easement for ingress and egress purposes over and across the private driveway, said easement to allow for access in a reasonably commercial manner. Developer shall also provide each re-platted lot with sufficient utility easements to allow for the reasonable installation of electric, gas, telephone, cable television, sanitary sewer, municipal water and storm sewer utilities to each such re-platted lot. All such easements shall be recorded on the properly records of both the dominant and subservient estates at the time of re-platting of each such outlot. 4. Surety Requirements. A. Developer will provide the City with cash or an irrevocable letter of credit as security that the obligations of the Developer under this contract shall be performed. Said letter of credit must meet the approval of the City attorney as to form and issuing bank. Said cash or letter of credit shall be in the amount of ,representing the sum of 100% of the estimated cost of installing the Municipal Improvements ($ )and the on- and off- site improvements ($ ). B. The City may draw on said letter of credit to complete work not performed by Developer, to pay liens on property to be dedicated to the City, to reimburse itself for costs incurred in the enforcement of this Agreement, to otherwise • 5 fiilfill the obligations of Developer under this Agreement, or as otherwise specified herein. 5. Surety Release. A. The developer may request of the City a reduction or release of any surety as follows: i. When another acceptable letter of credit is furnished to the City to replace a prior letter of credit. ii. When all or a portion of the on and off-site improvements have been installed, the letter of credit may be reduced by the dollaz amount attributable to that portion of improvements so installed. iii. The surety shall be reduced dollaz-for-dollaz (but not below the warranty amounts described in SB below) for all Municipal Improvements and on- and off-site items for which the Developer provides the City both invoices from contractors detailing the completed work and lien waivers in the dollaz amounts invoiced from the contractors performing said work, and for which the City Engineer has inspected said Municipal Improvements and/or on- and off-site items and certified the work as satisfactory. iii. As to all requests brought under this paragraph A, the City Council shall have complete discretion whether to reduce or not reduce said letter of credit. B. Notwithstanding the provisions of paragraph SA, during the first yeaz after completion of the Municipal Improvements the surety posted by the Developer shall not be reduced below 10% of the original amount required for Municipal Improvements. During the second yeaz after completion of the Municipal Improvements the surety posted by the Developer shall not be reduced below 5% of the original amount required for Municipal Improvements. The above-described 10% and 5% shall be retained during the first and second years respectively for warranty purposes. 6. Surety Deficiency. In the event that any cash, irrevocable letter of credit, or other surety referred to herein is ever utilized and found to be deficient in amount to pay or reimburse the City in total as required herein, the Developer agrees that upon being 6 billed by the City, Developer will pay within thirty (30) days of the mailing of said billing, the said deficient amount. If there should be an overage in the amount of utilized security, the City will, upon malting said determination, refund to the Developer any monies which the City has in its possession which are in excess of the actual costs of the project as paid by the City. 7. Payment of Fees. Developer acknowledges and agrees that it normally would be required to pay park dedication fees, sewer trunk line fees, water trunk line fees, sewer access charges, storm water access fees, plan processing fees, and water access charges, all totaling approximately $600,000. Developer also acknowledges and agrees that its development will require the City participate in the cost of installing semaphore traffic lights at the intersection of Wright County Highways 19 and 37, and at the intersection of Wright County Highway 37 and the west bound exit ramp of Interstate 94. Developer acknowledges and agrees that City policy typically requires the Developer to pay the City's costs of installing said semaphore traffic lights. In lieu of the payment of all of said fees and costs, Developer shall deed to the City of Albertville, via warranty deed, property legally described as follows: • Developer shall deliver marketable title to said property to the City within 30 days of the date of execution of this agreement, and said property shall be free of all liens and encumbrances, including special assessments levied as of the date of this document. Within 10 days after the execution of this agreement, Developer shall provide the City with title insurance from a title insurer licensed to do business in the State of Minnesota in the amount of $ .Real estate taxes due and payable in the year of the property transfer shall be prorated between Developer and the City to the date of closing. Developer shall pay all back taxes and all taxes resulting from the removal of the property from "green acres" tax classification. 8. Abandonment of Proiect -Costs and Expenses. In the event Developer should abandon the proposed development of the Subject Property, the City's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, preparation of the plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, ceases substantial field work for more than nine (9) months, or fails to provide sufficient ground-cover to prevent continuing soil erosion from the Plat, Developer agrees to pay all costs the ~1 l~l t City may incur in taking whatever action is reasonably necessary to provide ground- cover and otherwise restore Said Plat to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from the Platted properties. In the event that said costs are not paid, the City may withdraw funds from the above-mentioned surety for the purpose of paying the costs referred to in this paragraph. 9. Developer To Pay City's Costs and Expenses of Enforcement. It is understood and agreed... that the Developer will reimburse the City for all administrative, legal, planning, engineering and other professional costs incurred in the enforcement of this Agreement should developer default on any of the terms of this agreement. 10. Erosion and Siltation Control. Before any grading is started on any site, all erosion control measures as shown on the approved erosion control plan attached hereto as Exhibit shall be installed, and Developer agrees to comply with additional erosion control measures recommended by the City Engineer should the erosion control plan prove inadequate. 11. Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub- base, base, .bituminous • surface, curb, utility systems, water main, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer fiuther agrees to pay all costs required to repair the streets and/or utility systems damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. In the event the Developer fails to clean up, maintain or repair the damaged public property mentioned above, the City shall provide the Developer with a Notice of its intent to clean up, repair, or maintain such public property. Developer shall have ten (10) days from the date of mailing (via certified mail) of such notice to effect such clean up, repair or maintenance of said public property to the satisfaction of the City Council, unless an emergency repair is required, in which case the City shall use best efforts to inform the Developer of the emergency before the City effects necessary repairs. The City shall also notice the Developer of any such repair, maintenance or cleanup by facsimile. In the event that Developer fails to so cleanup, repair or maintain said public properly, or in the event that an emergency repair is necessary, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. If the Developer fails to pay said bill within thirty (30) days, funds sufficient to pay the bill may be withdrawn by the City from the surety described above and/or assessed against any or all of Said Plat. r~ 12. Temporary Access Rights. Developer shall provide access to the Subject Property at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. The City will use reasonable efforts to coordinate such inspections with Developer's general contractor. 13. Miscellaneous. A. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Contract. B. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the Parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. C. This Contract shall run with the land and shall be recorded against the title to the property. Developer agrees to record Said Plat in the Wright County Recorder's Office within three (3) business days of the execution of this agreement by the City. Developer shall secure the subordination of all liens recorded against the Subject Property to the terms this Agreement. After the Developer has completed all work and obligations required of it under this Contract; at the Developer's request, the City will execute and deliver to the Developer a release of those portions of this agreement which have been completely fulfilled and require no further action by Developer, but all portions of this agreement governing the use of the land shall remain in effect. D. All municipal water concerns will be handled by the Joint Powers Water Board. No connections to the water system will be permitted until the Board has given final approval. E. The Developer represents to the City that, to the best of its knowledge, the Plat complies with all City, county and state laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the plat does not so comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer so complies. Upon the City's demand, the Developer shall cease work until there is compliance with said laws and regulations. • 9 F. Developer shall comply with all water, ponding and wetland related restrictions as contained in the letter dated from the Wright County Soil and Water Conservation District (said letter is on file with the City Clerk). G. Prior to the execution of this Agreement and prior to the start of any construction on the Subject Property, Developer shall provide the City with evidence of good and marketable title to all of Subject Property. Evidence of .good and marketable title shall consist of a Title Insurance Policy or Commitment from a national title insurance company, or an abstract of title updated by an abstract company registered under the laws of the State of Minnesota 14. Draw on Expiring Letter of Credit. In the event a surety referred to herein is in the form of an irrevocable letter of credit, which by its terms may become null and void prior to the time at which all monetary or other obligations of the Developer are paid or completed, it is agreed that the Developer shall provide the City with a new letter of credit or other surety, acceptable to the City, at least forty-five (45) days prior to the expiration of the expiring letter of credit. If a new letter of credit is not received as required above, the City may declare a default in the terms of this Agreement and • thence draw in part or in total, at the City's discretion, upon the expiring letter of credit to avoid the loss of surety for the continued obligation. The form of said irrevocable letter of credit must be approved by the City Attorney prior to its issuance. 15. Violation of Agreement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days notice via certified mail and facsimile transmission thereof, and if the Developer fails to commence a cure within 30 days of the notice and fails to prosecute said cure diligently to completion, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail and the transmission of the facsimile. Upon failure of Developer to cure or commence cure and diligently prosecute to completion, the City may thence immediately and without notice or consent of the Developer use all of the deposited cash, irrevocable letter of credit or other surety funds to complete the Developer's obligations under this agreement, and to bring legal action against the Developer to collect any sutras due to the City pursuant to this Agreement, plus L~ to all costs and attorney's fees incurred in enforcing this Agreement. B. Paragraph 15 shall not apply to any acts or rights of the City under paragraph 14 above, and no notice need be given to the Developer as a condition precedent to the City declaring a default or drawing upon the expiring irrevocable letter of credit as therein authorized. The City may elect to give notice to Developer of the City's intent to draw upon the surety without waiving the City's right to draw upon the surety at a future time without notice to the Developer. C. Breach of any of the teams of this Contract by the Developer shall be grounds for denial of occupancy permits. 16. Dedications to the City. A. The Developer, upon presentation to the City of evidence of good and marketable title to Subject Property, and upon completion of all construction work and certification of completion by the City Engineer, shall dedicate the water main (as shown on Exhibit ~ to the City, and the Developer . shall provide the City with drainage easements over all ponds, wetlands and ditches. Prior to dedication, Developer shall provide to the City "As-Builts" of all sewers, roads and water main. Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City Council. B. The City hereby deems the Developer's park dedication requirements have been satisfied with the obligations undertaken by Developer in this agreement. C. The Developer shall dedicate trails feet in width in .the following locations as shown on the attached Exhibit D. The Developer agrees that in the event the City, Wright County, and/or State of Minnesota undertakes to construct awest-bound exit ramp from Interstate 94 to Wright County Highway No. 19, Developer shall dedicate to the City, Wright County and/or State of Minnesota, free of charge, sufficient right-of-way to construct said exit ramp and a corresponding entrance ramp from Wright County Highway No. 19 to the Interstate 94 west-bound lane, provided, however, that Developer shall have no obligation to dedicate right-of-way from any lot other than Outlot A of Said Plat. • 11 • 17. Phased Development. A. This agreement shall govern Lot 1, Block 1 of Said Plat as a final phase development, and shall govern the permitted uses for outlots Replatting and development of any of the outlots shall be considered "future phases" to be governed by a separate developer's agreement. B. The City may refuse to approve final plats of subsequent phases until public .improvements for all prior phases have been satisfactorily completed Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Approval of this phase of the Development shall not be construed as approval of future phases nor shall approval of this phase bind the City to approve future Development phases. C. Only those buildings depicted on Lot 1, Block 1 of Said Plat, including the building designated as "future construction," and as shown on the attached Exhibit are approved by virtue of this agreement. 18. Indemnity. Developer shall hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from plat approval and development. The Developer shall i indemnify the City and its officers and employees for all costs or expenses which the City may pay or incur in consequence of such claims, including reasonable attorney's fees. The Developer shall also indemnify the City and its officers and employees for all damages which the City may pay as a result of adverse judgments or awards of Court. Third parties shall have no recourse against the City under this contract. 19. Assignment. The obligations of the Developer under this Contract cannot be assigned without the express written consent of the City Council through Council resolution. 20. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are incorporated into this Agreement by reference as they appear. Unless otherwise specified in this Agreement, Developer is bound by said plans and responsible for implementation of said plans as herein incorporated. 21. Integration Clause, Modification by Written Agreement Only. This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 12 • 22. Professional Fees. The Developer will pay all reasonable professional fees incurred by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a bond or letter of credit furnished by the Developer as provided herein. In the event the Developer disputes the City's fees incurred under this paragraph, the parties agree to submit said dispute to arbitration by the American Arbitration Association. 23. Notification Information. Any notices given to the Parties as herein required shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville c/o City Clerk P.O. Box 131 Albertville, MN 55301 Telephone: (612) 497-3384 r1 U Albertville Factory Outlets, LLC c/o JMJ Properties, Inc. 107 Sinclair Drive Muskegon, Michigan 49441 Telephone: (616) 798-4670 Facsimile: (616) With a copy to Mike Knowlton Culver, Sheridan, Knowlton, Even & Franks 250 Terrace Plaza P.O. Box 629 Muskegon, Michigan 49443 Telephone: (616) 724-4320 Fax: (616) 724-4330 24. Assignment of Contract. The obligations of the Developer under this Contract cannot be assigned without the express written consent of the City Council through 13 • Council resolution. • 25. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) CITY OF ALBERTVII,LE, By Its Mayor By Its Clerk DEVELOPER, ALBERTVII,LE FACTORY OUTLETS, LLC. By James Morse Its The foregoing instrument was acknowledged before me this day of 1998, by as Mayor of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. Notary Public • 14 • STATE OF 11~IINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 1998, by Linda Goeb, as Clerk of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. Notary Public STATE OF ) ss. COUNTY OF ) • The foregoing instrument was acknowledged before me this day of 1998, by James Morse, as of Albertville Factory Outlets, LLC. Notary Public This agreement drafted by: Court & MacArthur Law Office P.O. Box 369 St. Michael, MN 55376 • 15