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1998 Draft # 1 DA~ ~ j A DRAFT #1 r~ ~DEVELOPER'S~Pi,ANNED UNIT DEVELOPMENT AGREEMENT Minneapolis Factory Shopper THIS AGREEMENT, entered into this day of , 1998 by and between JMJ Properties, Inc. (hereinafter `Developer') and the CITY OF ALBERTVILLE, a municipal corporation organized under the laws of the State of Minnesota (hereinafter `City'), all of which are collective~y referred to herein as `the Parties'; WIINESSEI',H: 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, which is the subject of this agreement, is intended to bear the name "Minneapolis Factory Shopper" 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 preliminary 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, grading, sanitary sewer, water, storm sewer and streets (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 finance by Developer; WHEREAS, the City further requires that certain on and off-site improvements be installed by the Developer within the Subject Property, which improvements consist of boulevazds, top soil and sod, trees planted in the front yards of those lots abutting the boulevards, grading control per lot, bituminous or concrete driveway approaches, drainage swales, berming, street signs, street cleanup during project development, erosion control, and other site-related items; and 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; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, inconsideration of each parry'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, sanitary and storm sewers, curb and gutter, streets, semaphore stop lights, turn lanes, acceleration lanes, and medians. All such improvements shall be constructed according to the standards required by the City Engineer, and the City Engineer shall inspect the project on regular basis. Said improvements shall be installed by B. The Developer warrants to the City for a period of two years from the date the M 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 worlananship. 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 improvements. E. Developer shall acquire all necessary permits required for the improvements contemplated herein. The costs of the said permits shall be the responsibility of the Developer. 2. Construction of On- and Off-Site Improvements. • 2 .~ ., . 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, beaming, street cleanup, wetland mitigatio and like items as necessary, during project development; and erosion contro~ all as detailed in attached Exhibits and Said on- and off-site improvements shall be installed by ,with the exception of erosion control, which shall be installed upon initial grading of Subject Property. 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 incompliance 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 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. Said semaphore shall be installed at such time as prescribed by the Wright County Highway Engineer or the City Engineer. • 3 f ~ F. Developer shall construct all street improvements as required in that certain letter dated August 7, 1998 from the Wright County Highway Department and attached as Exhibit Said street improvements shall be at Developer's sole cost and shall be constructed prior to the issuance of any occupancy permits for any buildings to be located on Said Plat. F. Developer is required to 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 a series of retail "factory outlet" shops and restaurants be constructed on the lots in Said Plat. Developer agrees that it shall not construct any units other than said outlet shops and restaurants, and also agrees that said construction shall be subject to the following restrictions: A. The City hereby establishes a PUD on Said Plat, subject to the terms and conditions contained in the agreement. Unless specifically excepted within this document, the requirements of the City's B-3 (?) zoning district (including future amendments) shall apply to all development occurring on Said Plat. B. Developer shall construct only those buildings as shown on the attached Exhibit 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. All buildings shall be setback feet from the main private drive which serves as the entrance to Said Plat. All buildings shall observe a side yard setback of no less than feet from the side lot line and a back yard setback of no less than feet from the rear lot line. D. All lots shall be sodded in the front yards upon completion of construction of the primary building for said lot, and all lots shall be landscaped in accordance with the attached landscape plan attached and incorporated herein as Exhibit "F". Side and back yards shall be sodded or seeded with grass seed. • 4 E. For each lot in Said Plat, Developer shall record on the property records of the Wright County Recorder's office the restrictive covenants and reciprocal easements attached and incorporated herein as Exhibit F. The main entrance street connecting to Wright County Highway No. 19 shall remain a private street. Developer shall maintain said street at all times in a manner substantially similar to the maintenance provided by the City to dedicated City streets. The Developer shall pay all costs of all such .maintenance. As part 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. 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 unprovements ($ ). 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 drafting, execution, administration or enforcement of this Agreement, to otherwise fulfill the obligations of Developer under this Agreement, or as otherwise specified herein. S. 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 dollar amount attributable to that portion of improvements so installed. 5 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. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within thirty (30) days of billing. 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 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 making 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. All monies deposited with the City shall be used by the City at the City's discretion to defray the City's costs and expenses related to the project(s) referred to herein. 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 said fees and costs, Developer shall: A. Deed to the City of Albertville, via warranty deed, property legally described as follows: and B. Agree to be have special assessments levied against any or all property in Said Plat by the City of Albertville in an amount not to exceed $ , provided said special assessments are spread over a period of 5 years or more, at an interest rate not to exceed 6%. C. Developer hereby waives its right under Minnesota Statutes § 429.81 to appeal said special assessments in the amounts and under the terms as described 6 above. 8. Abandonment of Project -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 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 Pav Citv's Costs and Expenses. 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 creation, administration, enforcement or execution of this Agreement and the approval of Said Plat, as well as all engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amounts, Developer agrees to allow the City to reimburse itself from said surety and/or specially assess the amount owed against any or all of the Said Plat without objection. 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 PropertyDamaged 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 system, 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 further agrees to pay all costs required to repair the streets 7 and/or utility systems damaged or cluttered with det~s en occurring as a direct or indirect result of the construction that takes place in 'd Plat. In the event the Developer fails to clean up, maintain or repair the damag public property mentioned above, the City shall provide the Developer with a No of its intent to clean up, repair, or maintain such public property. Developers have ten (10) days from the date of mailing of such notice to effect such clean up, repair or maintenance of said public properly to the satisfaction of the City Council. In the event that Developer fails to so clean up, repair or maintain said public property, 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. 12. Temporar~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. 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. Developer agrees that all construction items required under this Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. C. If building pemuts are issued prior to the completion and acceptance of public improvements, the Developer assumes all liability and the costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, materiahnen, employees, agents, or third parties. D. 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. s E. 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. 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 fiilfilled and require no fiu ther action . by Developer. F. All municipal water concerns will 1~ handled by the Joint Powers Water Board. No connections to the water system will be permitted until the Board has given final approval. ~ ~ G. The Developers represent to the City that the Plat complies with all City, county, state and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the plat does not 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. H. 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). I. 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 forni 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 9 r • 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 6pntained, the City shall give Developer thirty (30) days mailed notice thereof, and if such default is not cured within said thirty (30) day period, 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. Upon failure to cure by Developer, 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 sums due to the City pursuant to this Agreement, plus 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 t1F 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 terms of this Contract by the Developer shall be grounds for denial of building 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, gas pipelines, electrical, cable and phone supplies. C7 10 Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City Council. B. The Developer agrees to pay a park dedication fee in the amount of $ (calculated on the basis of 10% of the value of the land as platted). Payment of said fee shall occur prior to release of the final plat. 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. . 17. Phased Development. A. If Said Plat is a phase of amulti-phased preliminary plat, 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 Developm Contracts for such phases are approved by the City. Approval of this phase o e Development shall not be construed as approval of future phases nor s approval of this phase bind the City to approve future Development phase All future Development phases shall be governed by the City's Comprehensive Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. B. Only those buildings as shown on the attached Exhibit are approved by virtue of this agreement. In the event Developer desires to construct other buildings on any of the lots in Said Plat, Developer must receive approval of the City of Albertville regarding the site plan for said building. 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 C. 11 • incurred resulting from plat approval and development. The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may pay or incur in consequence of such claims, including attorney's fees. 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. 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. 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 JMJ Properties, Inc. c/o James Morse I~ L.J 12 • 107 Sinclair Drive Muskegon, Michigan 49441 Telephone: (616) 798-4670 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 Council resolution. 25. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. ..~ CITY OF ALBERTVILLE, n LJ DEVELOPER, t PROPERTIES, INC. By James Morse Its STATE OF NIINNESOTA ) s~. COUNTY OF WRIGHT ) 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. • 13 By Its Mayor By Its Clerk Notary Public STATE OF MINNESOTA ) 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 JMJ Properties, Inc. Notary Public • 14 • • • Legal Description E~~IT A 15