1999 Proposed Final Draft DAPROPOSED FINAL DRAFT
March 10,1999
DEVELOPER'S~PLANNED UhTIT DEVELOPMENT AGREEMENT
Minneapolis Outlet Center
THIS AGREEMENT, entered into this day of , 1999 by and
between Albertville Factory Outlets, LLC, a Michigan Limited Liability Company.
(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
collectively referred to herein as `the Parties';
WITNESSETH:
WHEREAS, Developer is the fee owner and developer of a parcel or parcels of land
described in Exhibit 1, 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 Outlet Center" 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 fmal approval of Developer's plat and Developer's
PUD request of Minneapolis Outlet Center 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 highway improvements (hereafter "Municipal
Improvements") be installed to serve the Subject Property and other properties affected by the
development of Developer's land, said improvements to be installed and/or financed 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
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
• WHEREAS, this Agreement is entered into for the purpose of setting forth and
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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.
Municipal Improvements shall consist of watermain and highway improvements as
described below:
A. Water Main. The Developer shall construct the watermain on Said Plat in
accordance with the plans and specifications attached hereto as Exhibit 2. The
City Engineer shall inspect the installation of said watermain on a regular basis.
Said watermain shall be installed no later than October 31, 2000. The
watermain shall be constructed at the Developer's sole expense.
1. The Developer warrants to the City for a period of one year from the date
the City accepts the project that the watermain has 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.
2. Upon completion of the installation of said watermain, Developer shall
provide the City with lien waivers from all contractors and subcontractors
engaged to construct said watermain.
3. Developer shall acquire all necessary permits required for the installation of
the watermain.
B. Highway Improvements. The City shall construct highway improvements
consisting of turn lanes, acceleration lanes and median ("Highway
Improvements"). All such required Highway Improvements shall be
constructed in accordance with Wright County Highway standards and shall be
constructed in accordance with the plans as shown on the attached Exhibit 3.
The City Engineer and/or County Engineer shall inspect all Highway
Improvements on a regular basis. Said improvements shall be installed no later
than February 1, 2000.
L The Developer shall pay all City costs incurred in constructing the Highway
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Improvements, including engineering costs, land acquisition costs (if any),
construction costs, permit fees (if any) and financing costs.
2. The City shall special assess 100% of the costs of said Highway
Improvements to Lot 1, Block 1 of Said Plat, payable over a period of years
to be determined by the City but not exceeding ten years, at an annual
interest rate not exceeding the rate of any bond issued to finance said
Highway Improvements plus 2%. Developer hereby waives any objection
to the special assessment of 100% of the cost of said Highway
Improvements against Said Plat in lieu of a direct billing of said costs.
Developer hereby waives its right of appeal said special assessment to the
District Court herein, pursuant to Minnesota Statute § 429.081. Developer
may prepay, in whole or in part, said special assessments at any time
pursuant to Minnesota Statutes Chapter 429.
3. The City shall obtain a permit from the Wright County Highway
Department allowing construction of the Highway Improvements.
C. Future Installation of Signal Lights.
1. The City shall install traffic signals (red, green and yellow) 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 determines that traffic levels
warrant the installation of said traffic signals, provided said
determination is made within three years of the date of the opening of
the proposed outlet mall to the public for retail business. If said
determination is made within said three year period, the cost of said
traffic signal and its installation (including engineering fees, land
acquisition, construction costs and fmancing costs) shall be at
Developer's sole expense. Said traffic signal shall be of a type of
traffic signal and installed in the manner as prescribed by the Wright
County Highway Engineer and the City Engineer. Upon such time as
all costs related to the installation of said traffic signals are
determinable, the City shall notify the Developer of the amount of said
costs via written notice. Developer shall either reimburse the City for
all expenses incurred in installing said traffic signals pursuant to this
paragraph 1.C.1. within 60 days of said written notification, or notify
the City within 30 days of said written notification that the Developer
elects to have said costs specially assessed against Lot 1, Block 1 of
Said Plat. Developer hereby waives any objection to the special
assessment of 100% of the cost of said traffic signals against Said Plat in
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lieu of a direct billing of said costs. Developer hereby waives its right to
appeal said special assessment to the District Court herein, pursuant to
Miruiesota Statute 429.081. In the event the City specially assesses 100%
of the costs of said traffic signals to Lot 1, Block 1 of Said Plat, said
assessments shall be payable over a period of years to be determined by
the City but not exceeding ten years, at an annual interest rate not
exceeding the rate of any bond issued to finance said traffic signals plus
2%.
2. If traffic signals are not required to be installed pursuant to paragraph
1.C.1., provided the Wright County Highway Department or the Wright
County Board has determined that traffic levels warrant the installation
of said traffic signal within 10 years of the date the outlet mall opens
for business, the City may install said traffic signal after the expiration
of said three year period referred to in paragraph 1.C.1. and specially
assess Lot 1, Block 1 in Said Plat for 25% of the cost of said traffic
signal and its installation (including engineering fees, land acquisition,
construction costs and fmancing costs) or the amount as determined in
paragraph 1.C.3. below, whichever is less. Provided the special
assessment referred to above is levied within ten years of the date the
outlet mall opens for business to the public, the Developer shall not
contest the special assessment and Developer waives its right to appeal
said special assessment pursuant to Minnesota Statute § 429.081.
3. The amount of said assessment shall be $123,000, adjusted for inflation
annually with the base year being the twelve month period immediately
prior to the date the outlet mall opened for business to the public.
Inflation adjustments shall be made at the end of each calendar year,
with the first adjustment made at the end of the first calendar 3year.
The inflation adjustment rate shall be the Consumer Price Index as
reported by the United States Department of Commerce or its successor
agency for the year in question.
2. Construction of On- and Off-Site Improvements.
A. Developer shall construct all on- and off-site improvements as detailed in
attached Exhibits 4 and 5. Said on- and off-site improvements shall be installed
no later than October 31, 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 6.
B. Developer shall, at its own expense, cause the following items to be installed
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within the development, all such items to be installed under ground where
commercially practicable, 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 (Sanitary Sewer and Watermain Plan)
for Said Plat showing all existing and proposed utility lines and easements.
Said utility plan is attached as Exhibit 2 hereto. Developer agrees to install all
utilities according to this plan.
D. Developer shall provide an on-site storm water holding ponds as shown on the
attached Exhibit 5. Developer shall be responsible for maintaining said storm
water holding ponds in proper working order 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 buildings 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 4 on said Lot 1, Block 1. Said buildings, including the building labeled
"future" shall be constructed in substantially the same size, shape and location
as shown on the attached Exhibit 4. All buildings except the building labeled
"future" shall be constructed in substantial conformity to the Building
Elevations prepared by The Collaborative, Inc. of Toledo, Ohio, received by
the City on March 5, 1999 and on file with the City Clerk. Prior to
construction of that building labeled "future," Developer shall submit a site
plan to the City containing proposed traffic flow, landscaping detail and
building elevation detail. Said landscaping detail and building elevation detail
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shall, where possible, be consistent with and similar to that shown on said
Building Elevations. Construction of said "future" building shall not begin
prior to approval of said site plan by the City.
C. The uses permitted on Lot 1, Block 1 shall be those listed on the attached
Exhibit 7. Developer may petition the City to amend the potential uses listed
on Exhibit 7 at such time as Developer proposes a use not currently listed on
said Exhibit 7. The City shall hear said petition as an amendment to the PUD
and shall use the same standard as a rezoning to evaluate and consider said
petition.
D. Lot 1, Block 1 shall be landscaped in accordance with 'the attached landscape
plan attached and incorporated herein as Exhibit 6. 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 ,
1999.
E. The main entrance driveway connecting to Wright County Highway No. 19
shall remain a private driveway. Developer shall construct said driveway at
Developer's sole expense. 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.
F. Outlots B, C, D and E shall remain non-buildable until said outlots are replatted
into numbered lots and blocks, and shall be the subject of separate developer's
agreements at the time of their development. Upon replatting into numbered
lots and blocks, Developer shall be allowed to use said outlots for the uses
described on Exhibit 8. Outlot A shall remain unbuildable indefinitely.
G. Developer agrees that it shall, upon platting of outlots B, C, and D into
numbered lots and blocks, 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 property records of both the dominant
and subservient estates at the time of re-platting of each such outlot. The City
may refuse to approve final plats of said outlots until the Municipal
Improvements and on- and off-site improvements required by this Agreement
have been satisfactorily completed.
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H. Developer and City agree that this agreement shall not apply to outlot E upon
its conveyance to the City of Albertville, except that the following restrictions
shall continue to apply after said conveyance as follows:
1. Restrictions related to future drainage contained in paragraph 14B shall
apply to said outlot E until Developer and City explicitly release said outlot
from the restrictions of said paragraph 14B (via a written release) or until
the City acquires the right to modify the drainage through an eminent
domain action brought in District Court.
2. The provisions of paragraph 8.A.2. relating to wetland mitigation
construction shall apply to said outlot E until Developer and City explicitly
release said outlot from the restrictions of said paragraph 8.A.2. (via a
written release) or until five years after the date of the warranty deed
described in subparagraph 8.A.1 of this agreement, at which time the right
of Developer to construct wetlands upon outlot E shall expire.
4. Surety Requirements. 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
$1,189,564.00, representing the sum of 100% of the estimated cost of installing the
Municipal Improvements ($371,125.00), and the on- and off-site improvements
($818,439.00). Developer shall provide said surety to the City prior to the issuance of
any building permits for any structures on Said Plat.
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 dollar amount
attributable to that portion of improvements so installed.
iii. The surety shall be reduced dollar-for-dollar (but not below the
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warranty amounts described in paragraph SB below) for all Municipal
Improvements, on- and off-site items and traffic signals for which the
Developer provides the City both invoices from contractors detailing the
completed work and lien waivers in the dollar 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.
B. Notwithstanding the provisions of paragraph SA, during the first year 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. The above-described 10% shall be retained during the first year for
warranty purposes.
6. Use of Surety.
A. In the event the Developer fails to cure a default after proper notice by the City
in accordance with paragraph 7 below, 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 and expenses incurred
by the City under this agreement for which Developer is obligated to reimburse
the City, to reimburse itself for costs incurred in the enforcement of this
Agreement, to otherwise fulfill the obligations of Developer under this
Agreement, or as otherwise specified herein.
B. 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.
C. 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
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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. Upon discovery by the City that said letter of
credit will expire within 45 days or less, the City shall employ reasonable
efforts to inform Developer of said expiration, and, if time allows, the City
shall forego drawing on said letter of credit for a reasonable time in order to
allow Developer to renew said letter of credit or provide a substitute letter of
credit.
7. 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
i cure within thirty days of notice of default, and to diligently prosecute to
completion thereafter, 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. If Developer has commenced a cure of
the default within thirty days of the notice and continuously proceeds with
diligence to correct said default, even if said correction extends beyond thirty
days of the notice of default, then the City shall not proceed to use said funds
until such time as Developer has abandoned or further failed to diligently
prosecute said cure to completion.
B. Paragraph 7A shall not apply to any acts or rights of the City under paragraph
6C 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.
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C. Breach of any of the terms of this Contract by the Developer shall be grounds
for denial of occupancy permits, provided the City has given notice of default
to Developer pursuant to this agreement.
8. Payment of Fees.
A. Waiver of Fees.
1. Current Development. 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, Developer also
acknowledges and agrees that its development may require the City to
participate in the cost of installing traffic signal lights (red, yellow and
green) 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 traffic signal
lights. In lieu of the payment of all of said fees and costs (except those
described below), Developer shall deed to the City of Albertville, via
• warranty deed, property legally described as follows:
Outlot E, according to the plat to be recorded bearing the name
Minneapolis Outlet Center, in the City of Albertville, Wright
County, Minnesota.
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
or pending as of the date of this document (including "contract charges" due
the Joint Powers Water Board upon the platting of the Subject Property).
Within 10 days after the execution of this agreement, Developer shall
provide the City with a title commitment from Chicago Title Insurance
Company in an amount not less than $300,000. 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.
2. Future Wetlands Mitigation. The City agrees that Developer shall have
the right, at any time within the first five years after the date of the
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Warranty Deed mentioned in subparagraph 8.A.1. above, to create up to
three acres of wetlands mitigation upon Outlot E, at Developer's expense
and at a location or locations designated by the City Engineer. Said right
shall be exercised by Developer only if the Wright County Soil and Water
Conservation District determines that additional wetland mitigation areas
need to be created as a result of certain monitoring activities that may be
conducted as a requirement of Developer's construction activities following
construction of the improvements to be completed by Developer on Lot 1,
Block 1 of Said Plat.
B. Building Inspection Fees. Developer shall pay to the City building permit fees
due as a result of said development, but only to the extent that said fees must be
forwarded to the State of Minnesota or to the City's Building Inspector as
independent contractor fees. The City shall waive that portion of the building
permit fee which it would normally keep.
C. SAC Charges. Developer acknowledges that the above-described waiver of fees
shall act to waive any Sewer Access Charges based upon the water usage up to an
average daily usage of 19,200 gallons of all users on Said Plat (including outlots B,
C, and D which may subsequently be replatted). At such time as the average daily
water usage for a given year exceeds 19,200 gallons, Developer shall pay the
Sewer Access Charges then in effect calculated upon the difference between said
average daily water usage and 19,200 gallons. Sewer Access Charges shall be paid
on any building or addition to existing building constructed after said average daily
water usage exceeds 19,200 gallons, said charges to be in an amount as specified in
the then-existing Sewer Access Charge ordinance.
D. Water Fees.
1. Current Development. Developer acknowledges that prior to January 1,
1999, the Joint Powers Water Board required payment of a hook-on fee of
$107,900.00 in order for Developer to receive water service. On September
28, 1998, the Joint Powers Water Board, at Developer's request, agreed to
extend the payment of hook-on fees over a 10 year period via special
assessments accruing 6.5% annual interest, with equal principal payments
due annually over the course of said 10 year period. Developer
acknowledges that the Joint Powers Water Board and the City have, as of
January 1, 1999, modified the duties and responsibilities of each entity as to
water concerns, and that the City will now be the entity responsible for
maintaining water lines and collecting water hook-on fees. Accordingly,
Developer agrees and understands that the City will specially assess
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Developer in the amount of $107,900.00 accruing interest at 6.5% and
payable over a 10-year period in equal principal payments (plus interest
annually) in lieu of Developer paying $107,900.00 to Joint Powers Water
Board prior to connection to municipal water service. Developer hereby
waives any objection to the special assessment of $107,900.00 against Said
Plat in lieu of a water connection charge. Developer hereby waives its right
to appeal said special assessment to the District Court herein, pursuant to
Minnesota Statute 429.081. Developer further acknowledges that under the
City/Joint Powers Board agreement, the City will receive and retain
approximately $33,200.00 of said $107,900.00 special assessment as
payment, in part, for the City assuming responsibility for significant
portions of the municipal water distribution system from Joint Powers.
Developer shall also make arrangements directly with the Joint Powers
Board for the payment of the Joint Powers Board's "contract charges" due
as a result of Said Plat being removed from agricultural use designation.
2. Future Development. Developer acknowledges that the above-described
$107,900.00 municipal water hook-on fee to be paid by Developer satisfies
the required hook-on fee only for the two buildings to be constructed with
the initial development of Lot 1, Block 1, and does not satisfy hook-on fees
that may be due in the future prior to the issuance of a building permit for
that building described as the "future" building in paragraph 3.B., nor does
it satisfy hook-on fees required with the development of any of the outlots
on Said Plat.
9. 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, provided that at least 5 business days prior to said
withdrawal, the City provides notice to the Developer of the City's intent to withdraw
said funds .
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10. Erosion and Siltation Control. Before an adin is started on any site, all erosion
Y ~' g
control measures as shown on the approved erosion control plan attached hereto as
Exhibit 5 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 further agrees to pay all costs required to repair the streets
and/or utility systems damaged or cluttered with debris when occurring as a 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, said notice to be sent to Developer by facsimile and U.S. Mail.
Developer shall have ten (10) days from the date of mailing (via certified mail) of such
notice to commence and diligently complete 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 clean up, repair or maintain said public property, 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.
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
13 ~4
Contract.
B. The action or inaction of the City or Developer 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. Neither the City's nor Developer's failure to
promptly take legal action to enforce this Contract shall constitute 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 cooperate with the City in recording this
Contract as the first item recorded after the filing of Said Plat in the Wright
County Recorder's Office. Developer shall secure the subordination of all liens
recorded against the Subject Property to the terms of 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 (i.e. water supplied from the Joint Powers Water
Board water tower) will be handled by the Joint Powers Water Board or its
successor with jurisdiction over the Subject Property. No connections to the
water system will be permitted until the Board or its successor has given final
approval.
E. The Developer and City represent to each other that, to the best of their
knowledge, as of the date of this agreement, the Plat complies with all City,
county and state laws and regulations, including but not limited to: subdivision
ordinances, sign 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.
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
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good and marketable title shall consist of a Title Insurance Policy or
Commitment from Chicago Title Insurance Company, or an abstract of title
updated by an abstract company registered under the laws of the State of
Minnesota.
14. 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 upon the issuance of a certification of completion by the City
Engineer, shall dedicate the water main (as shown on Exhibit 2) to the City,
along with a 20-foot permanent easement for the watermain, said easement
centered upon said watermain. To the extent allowed by the Minnesota
Department of Health, Developer may locate sanitary sewer lines in a portion
of said permanent easement, provided said sanitary sewer lines do not interfere
with or otherwise hinder the City's ability to access, service or use said
watermain.
B. The Developer shall dedicate to the City drainage easements over all ponds,
• wetlands and ditches. Said easements shall be in the form and shall cover the
items as specified on the attached Exhibit 9. Prior to dedication, Developer
shall provide to the City "As-Builts" of all sanitary sewer mains, storm sewer
mains, storm water ponds, private drive, and water mains. Acceptance by City
of any dedication shall occur upon passage of a resolution to such effect by the
City Council.
C. The City hereby deems the Developer's park dedication requirements have
been satisfied with the obligations undertaken by Developer in this agreement.
D. The Developer shall reserve an easement for future dedication for a pedestrian
trail ten feet in width along the easterly property line of Lot 1, Block 1 at the
western right-of--way line of Wright County Highway 19 along the entire length
of Lot 1, Block 1 of Said Plat, and along the easterly property line of Outlot A
at the western right-of--way line of Wright County Highway 19 along the entire
length of Outlot A. Developer shall dedicate said easement to the City free of
charge at such time as the City designs said trail.
E. The Developer shall reserve for future dedication to the City, Wright County,
and/or State of Minnesota, sufficient land for the construction of a west-bound
exit ramp from Interstate 94 to Wright County Highway No. 19. In the event
. said west-bound exit ramp is to be constructed, Developer shall dedicate to the
15
. 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.
15. 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
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 resulting from plat approval and development. Third parties shall have no
recourse against the City under this contract.
16. 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.
17. 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.
18. 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.
19. 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:
16
City of Albertville
c/o City Clerk
P.O. Box 9
Albertville, MN 55301
Telephone: (612) 497-3384
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
Michael Knowlton
Culver, Sheridan, Knowlton, Even & Franks
250 Terrace Plaza
P.O. Box 629
• Muskegon, Michigan 49443
Telephone: (616) 724-4320
Fax: (616) 724-4330
20. 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.
21. Time of the Essence. Time is of the essence in regard to the undertakings of the
parties in this agreement.
22. Agreement Effect. This Agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the parties hereto.
CITY OF ALBERTVILLE,
By
Its Mayor
By
17
Its Clerk
DEVELOPER,
ALBERTVILLE FACTORY
OUTLETS, LLC.
By James A. Morse, Jr.
Its Manager
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
'The foregoing instrument was acknowledged before me this day of
• , 1999, 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
STATE OF NIINNESOTA )
ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this ' day of
1999, 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
r1
U
18
•
STATE OF )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1999, by James A. Morse, Jr. as Manager of Albertville Factory
Outlets, LLC, a Michigan Limited Liability Company.
Notary Public
This agreement drafted by:
Couri & MacArthur Law Office
P.O. Box 369
• St. Michael, MN 55376
~1
L..J
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PROPOSED FINAL DRAFT
March 10, 1999
DEVELOPER'S\PLANNED UNIT DEVELOPMENT AGREEMENT
Minneapolis Outlet Center
THIS AGREEMENT, entered into this day of , 1999 by and
between Albertville Factory Outlets, LLC, a Michigan Limited Liability Company.
(hereinafter 'Developer') and the CITY OF ALBERTVILLE, a municipal corporation
organized Wlder the laws of the State of Minnesota (hereinafter 'City'), all of which are
collectively referred to herein as 'the Parties';
WITNESSETH:
WHEREAS, Developer is the fee owner and developer of a parcel or parcels of land
described in Exhibit 1, 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 Outlet Center" 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 Outlet Center 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 highway improvements (hereafter "Municipal
Improvements") be installed to serve the Subject Property and other properties affected by the
development of Developer's land, said improvements to be installed and/or financed 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
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
WHEREAS, this Agreement is entered into for the purpose of setting forth and
1
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memorializing for the Parties and subsequent owners, the Wlderstandings 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 Municioal Imorovements.
Municipal Improvements shall consist of watermain and highway improvements as
described below:
A. Water Main. The Developer shall construct the watermain on Said Plat in
accordance with the plans and specifications attached hereto as Exhibit 2. The
City Engineer shall inspect the installation of said watermain on a regular basis.
Said watermain shall be installed no later than October 31, 2000. The
watermain shall be constructed at the Developer's sole expense.
1. The Developer warrants to the City for a period of ()ne year from the date
the City accepts the project that the watermain has 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.
2. Upon completion of the installation of said watermain, Developer shall
provide the City with lien waivers from all contractors and subcontractors
engaged to construct said watermain.
3. Developer shall acquire all necessary pennits required for the installation of
the watermain.
B. Highway Improvements. The City shall construct highway improvements
consisting of turn lanes, acceleration lanes and median ("Highway
Improvements"). All such required Highway Improvements shall be
constructed in accordance with Wright COWlty Highway standards and shall be
constructed in accordance with the plans as shown on the attached Exhibit 3.
The City Engineer and/or COWlty Engineer shall inspect all Highway
Improvements on a regular basis. Said improvements shall be installed no later
than February 1,2000.
1. The Developer shall pay all City costs incurred in constructing the Highway
2
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"
.
c.
.
.
Improvements, including engineering costs, land acquisition costs (if any),
construction costs, pennit fees (if any) and financing costs.
2. The City shall special assess 100% of the costs of said Highway
Improvements to Lot 1, Block 1 of Said Plat, payable over a period of years
to be detennined by the City but not exceeding ten years, at an annual
interest rate not exceeding the rate of any bond issued to finance said
Highway Improvements plus 2%. Developer hereby waives any objection
to the special assessment of 100% of the cost of said Highway
Improvements against Said Plat in lieu of a direct billing of said costs.
Developer hereby waives its right of appeal said special assessment to the
District Court herein, pursuant to Minnesota Statute ~ 429.081. Developer
may prepay, in whole or in part, said special assessments at any time
pursuant to Minnesota Statutes Chapter 429.
3. The City shall obtain a pennit from the Wright COWlty Highway
Department allowing construction of the Highway Improvements.
Future Installation of Signal Lights.
1. The City shall install traffic signals (red, green and yellow) at the
intersection of Wright COWlty Highway No. 19 and the private drive
entrance to Said Plat at such time as the Wright County Highway
Department or the Wright COWlty Board determines that traffic levels
warrant the installation of said traffic signals, provided said
determination is made within three years of the date of the opening of
the proposed outlet mall to the public for retail business. If said
determination is made within said three year period, the cost of said
traffic signal and its installation (including engineering fees, land
acquisition, construction costs and fmancing costs) shall be at
Developer's sole expense. Said traffic signal shall be of a type of
traffic signal and installed in the manner as prescribed by the Wright
COWlty Highway Engineer and the City Engineer. Upon such time as
all costs related to the installation of said traffic signals are
determinable, the City shall notify the Developer of the amount of said
costs via written notice. Developer shall either reimburse the City for
all expenses incurred in installing said traffic signals pursuant to this
paragraph 1. c.1. within 60 days of said written notification, or notify
the City within 30 days of said written notification that the Developer
elects to have said costs specially assessed against Lot 1, Block 1 of
Said Plat. Developer hereby waives any objection to the special
assessment of 100% of the cost of said traffic signals against Said Plat in
3
lieu of a direct billing of said costs. Developer hereby waives its right to
appeal said special assessment to the District Court herein, pursuant to
Minnesota Statute 429.081. In the event the City specially assesses 100%
of the costs of said traffic signals to Lot 1, Block 1 of Said Plat, said
assessments shall be payable over a period of years to be determined by
the City but not exceeding ten years, at an an.mal interest rate not
exceeding the rate of any bond issued to finance said traffic signals plus
2%.
.
2. If traffic signals are not required to be installed pursuant to paragraph
I.e.I., provided the Wright COWlty Highway Department or the Wright
COWlty Board has determined that traffic levels warrant the installation
of said traffic signal within 10 years of the date the outlet mall opens
for business, the City may install said traffic signal after the expiration
of said three year period referred to in paragraph l.C.1. and specially
assess Lot 1, Block 1 in Said Plat for 25% of the cost of said traffic
signal and its installation (including engineering fees, land acquisition,
construction costs and fmancing costs) or the amoWlt as determined in
paragraph I.e.3. below, whichever is less. Provided the special
assessment referred to above is levied within ten years of the date the
outlet mall opens for business to the public, th<j! Developer shall not
contest the special assessment and Developer waives its right to appeal .
said special assessment pursuant to Minnesota Statute ~ 429.081.
3. The amoWlt of said assessment shall be $123,000, adjusted for inflation
annually with the base year being the twelve month period immediately
prior to the date the outlet mall opened for business to the public.
Inflation adjustments shall be made at the end of each calendar year,
with the frrst adjustment made at the end of the frrst calendar 3year.
The inflation adjustment rate shall be the Consumer Price Index as
reported by the United States Department of Commerce or its successor
agency for the year in question.
2. Construction of On- and Off-Site Improvements.
A. Developer shall construct all on- and off-site improvements as detailed in
attached Exhibits 4 and 5. Said on- and off-site improvements shall be installed
no later than October 31, 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 6.
B.
Developer shall, at its own expense, cause the following items to be installed
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within the development, all such items to be installed Wlder groWld where
commercially practicable, accessible to all lots and in compliance with all
applicable state and local regulations:
1. Electrical power supply, to be provided by Northern States Power or
other such carrier;
11. Natural gas supply, to be provided by Minnegasco or other such carrier;
m. Telephone service, to be provided by United Telephone Company or
other such carrier;
C. Developer has submitted a utility plan (SanitaIy Sewer and Watermain Plan)
for Said Plat showing all existing and proposed utility lines and easements.
Said utility plan is attached as Exhibit 2 hereto. Developer agrees to install all
utilities according to this plan.
D. Developer shall provide an on-site storm water holding ponds as shown on the
attached Exhibit 5. Developer shall be responsible for maintaining said storm
water holding ponds in proper working order at all times.
3.
Intended Use ofPronerty.
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 buildings 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 4 on said Lot I, Block 1. Said buildings, including the building labeled
"future" shall be constructed in substantially the same size, shape and location
as shown on the attached Exhibit 4. All buildings except the building labeled
"future" shall be constructed in substantial confonnity to the Building
Elevations prepared by The Collaborative, Inc. of Toledo, Ohio, received by
the City on March 5, 1999 and on file with the City Clerk. Prior to
construction of that building labeled "future," Developer shall submit a site
plan to the City containing proposed traffic flow, landscaping detail and
building elevation detail. Said landscaping detail and building elevation detail
5
'.
shall, where possible, be consistent with and similar to that shown on said .
Building Elevations. Construction of said "future" building shall not begin
prior to approval of said site plan by the City.
C. The uses pennitted on Lot 1, Block 1 shall be those listed on the attached
Exhibit 7. Developer may petition the City to amend the potential uses listed
on Exhibit 7 at such time as Developer proposes a use not currently listed on
said Exhibit 7. The City shall hear said petition as an amendment to the PUD
and shall use the same standard as a rezoning to evaluate and consider said
petition.
D. Lot 1, Block 1 shall be landscaped in accordance with the attached landscape
plan attached and incorporated herein as Exhibit 6. 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 COWlty Soil and Water Conservation District on
1999.
E.
The main entrance driveway connecting to Wright County Highway No. 19
shall remain a private driveway. Developer shall construct said driveway at
Developer's sole expense. 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.
.
F. Outlots B, C, D and E shall remain non-buildable Wltil said outlots are replatted
into numbered lots and blocks, and shall be the subject of separate developer's
agreements at the time of their development. Upon replatting into numbered
lots and blocks, Developer shall be allowed to use said outlots for the uses
described on Exhibit 8. Outlot A shall remain Wlbuildable indefinitely.
G.
Developer agrees that it shall, upon platting of outlots B, C, and D into
numbered lots and blocks, 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 property records of both the dominant
and subservient estates at the time of re-platting of each such outlot. The City
may refuse to approve final plats of said outlots Wltil the Municipal
Improvements and on- and off-site improvements required by this Agreement
have been satisfactorily completed.
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H.
Developer and City agree that this agreement shall not apply to outlot E upon
its conveyance to the City of Albertville, except that the following restrictions
shall continue to apply after said conveyance as follows:
1. Restrictions related to future drainage contained in paragraph 14B shall
apply to said outlot E Wltil Developer and City explicitly release said outlot
from the restrictions of said paragraph 14B (via a written release) or Wltil
the City acquires the right to modify the drainage through an eminent
domain action brought in District Court.
2. The provisions of paragraph 8.A.2. relating to wetland mitigation
construction shall apply to said outlot E Wltil Developer and City explicitly
release said outlot from the restrictions of said paragraph 8.A.2. (via a
written release) or Wltil five years after the date of the warranty deed
described in subparagraph 8.A.l of this agreement, at which time the right
of Developer to construct wetlands upon outlot E shaJ;l expire.
4.
Surety Reauirements. Developer will provide the City with cash or an irrevocable
letter of credit as security that the obligations of the Developer Wlderthis 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 amoWlt of
$1,189,564.00, representing the sum of 100% of the estimated cost of installing the
Municipal Improvements ($371,125.00), and the on- and off-site improvements
($818,439.00). Developer shall provide said surety to the City prior to the issuance of
any building pennits for any structures on Said Plat.
5. Surety Release.
A. The developer may request of the City a reduction or release of any surety as
follows:
1. When another acceptable letter of credit is furnished to the City to
replace a prior letter of credit.
n. 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 amoWlt
attributable to that portion of improvements so installed.
m.
The surety shall be reduced dollar-for-dollar (but not below the
7
warranty amoWlts described in paragraph 5B below) for all Municipal .
Improvements, on- and off-site items and traffic signals for which the
Developer provides the City both invoices from contractors detailing the
completed work and lien waivers in the dollar amoWlts 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.
B. Notwithstanding the provisions of paragraph 5A, during the first year after
completion of the Municipal Improvements the surety posted by the Developer
shall not be reduced below 100/0 of the original amoWlt required for Municipal
Improvements. The above-described 100-10 shall be retained during the first year for
warranty purposes.
6. Use of Surety.
c.
A.
In the event the Developer fails to cure a default after proper notice by the City
in accordance with paragraph 7 below, 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 and expenses incurred
by the City Wlder this agreement for which Developer is obligated to reimburse
the City, to reimburse itself for costs incurred in the enforcement of this
Agreement, to otherwise fulfill the obligations of Developer rmder this
Agreement, or as otherwise specified herein. )1
.
B. In the event that any cash, irrevocable letter of credit, or other surety referred to
herein is ever utilized and fOWld to be deficient in amoWlt to payor 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 amoWlt. If there should be an overage in the amoWlt
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.
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
8
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.
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.
7.
B.
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. Upon discovery by the City that said letter of
credit will expire within 45 days or less, the City shall employ reasonable
efforts to inform Developer of said expiration, and, if time allows, the City
shall forego drawing on said letter of credit for a reasonable time in order to
allow Developer to renew said letter of credit or provide a substitute letter of
credit.
Violation of Ae:reement.
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 within thirty days of notice of default, and to diligently prosecute to
completion thereafter, the City may thence immediatelyi 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
incWTed in enforcing this Agreement. If Developer has commenced a cure of
the default within thirty days of the notice and continuously proceeds with
diligence to correct said default, even if said correction extends beyond thirty
days of the notice of default, then the City shall not proceed to use said funds
Wltil such time as Developer has abandoned or further failed to diligently
prosecute said cure to completion.
Paragraph 7 A shall not apply to any acts or rights of the City Wlder paragraph
6C above, and no notice need be given to the Developer as a condition
precedent to the City declaring a default or drawin;g upon the expiring
irrevocable letter of credit as therein authorized. The €ity 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.
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c.
Breach of any of the terms of this Contract by the Developer shall be groWlds
for denial of occupancy pennits, provided the City has given notice of default
to Developer pursuant to this agreement.
.
8. Pavment of Fees.
A. Waiver of Fees.
1. Current Development. 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, Developer also
acknowledges and agrees that its development may require the City to
participate in the cost of installing traffic signal lights (red, yellow and
green) at the intersection of Wright COWlty Highways 19 and 37, and at the
intersection of Wright County Highway 37 and the west-boWld 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 traffic signal
lights. In lieu of the payment of all of said fees and costs (except those
described below), Developer shall deed to the City of Albertville, via
warranty deed, property legally described as follows: .
Outlot E, according to the plat to be recorded bearing the name
Minneapolis Outlet Center, in the City of Albertville, Wright
COWlty, Minnesota.
Developer shall deliver marketable title to said prop~rty 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
or pending as of the date of this document (including "contract charges" due
the Joint Powers Water Board upon the platting of the Subject Property).
Within 10 days after the execution of this agreement, Developer shall
provide the City with a title commitment from Chicago Title Insurance
Company in an amoWlt not less than $300,000. 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.
2. Future Wetlands Mitigation. The City agrees that Developer shall have
the right, at any time within the first five years after the date of the
10
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Warranty Deed mentioned in subparagraph 8.A.l. above, to create up to
three acres of wetlands mitigation upon Outlot E, at Developer's expense
and at a location or locations designated by the City Engineer. Said right
shall be exercised by Developer only if the Wright COWlty Soil and Water
Conservation District determines that additional wetland mitigation areas
need to be created as a result of certain monitoring activities that may be
conducted as a requirement of Developer's construction activities following
construction of the improvements to be completed by Developer on Lot 1,
Block 1 of Said Plat.
B. Building Inspection Fees. Developer shall pay to the City building permit fees
due as a result of said development, but only to the extent that said fees must be
forwarded to the State of Minnesota or to the City's Building Inspector as
independent contractor fees. The City shall waive that portion of the building
pennit fee which it would normally keep.
.
C. SAC Charges. Developer acknowledges that the above-described waiver of fees
shall act to waive any Sewer Access Charges based upon the water usage up to an
average daily usage of 19,200 gallons of all users on Said Plat (including outlots B,
C, and D which may subsequently be replatted). At such time as the average daily
water usage for a given year exceeds 19,200 gallons, Developer shall pay the
Sewer Access Charges then in effect calculated upon the difference between said
average daily water usage and 19,200 gallons. Sewer Access Charges shall be paid
on any building or addition to existing building constructed after said average daily
water usage exceeds 19,200 gallons, said charges to be in an amoWlt as specified in
the then-existing Sewer Access Charge ordinance.
D. Water Fees.
.
1. Current Development. Developer acknowledges that prior to January I,
1999, the Joint Powers Water Board required payment of a hook-on fee of
$107,900.00 in order for Developer to receive water service. On September
28, 1998, the Joint Powers Water Board, at Developer's request, agreed to
extend the payment of hook-on fees over a 10 year period via special
assessments accruing 6.5% annual interest, with equal principal payments
due annually over the course of said 10 year period. Developer
acknowledges that the Joint Powers Water Board and the City have, as of
January 1, 1999, modified the duties and responsibilities of each entity as to
water concerns, and that the City will now be the entity responsible for
maintaining water lines and collecting water hook-on fees. Accordingly,
Developer agrees and understands that the City will specially assess
11
Developer in the amoWlt of $107,900.00 accruing interest at 6.5% and
payable over a 10-year period in equal principal payments (plus interest
annually) in lieu of Developer paying $107,900.00 to Joint Powers Water
Board prior to connection to municipal water service. Developer hereby
waives any objection to the special assessment of $107,900.00 against Said
Plat in lieu of a water connection charge. Developer hereby waives its right
to appeal said special assessment to the District Court herein, pursuant to
Minnesota Statute 429.081. Developer further acknowledges that Wlder the
City/Joint Powers Board agreement, the City will receive and retain
approximately $33,200.00 of said $107,900.00 special assessment as
payment, in part, for the City assuming responsibility for significant
portions of the municipal water distribution system from Joint Powers.
Developer shall also make arrangements directly with.. the Joint Powers
Board for the payment of the Joint Powers Board's ;~'contract charges" due
as a result of Said Plat being removed from agricultural use designation.
.
2. Future Development. Developer acknowledges that the above-described
$107,900.00 municipal water hook-on fee to be paid by Developer satisfies
the required hook-on fee only for the two buildings to be constructed with
the initial development of Lot 1, Block 1, and does not satisfy hook-on fees
that may be due in the future prior to the issuance of a building pennit for
that building described as the "future" building in paragraph 3.B., nor does
it satisfy hook-on fees required with the development of any of the outlots
on Said Plat.
.
9.
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 Wldertaken 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 groWld-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 Wldeveloped groWlds 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, provided that at least 5 business days prior to said
withdrawal, the City provides notice to the Developer of the City's intent to withdraw
said funds .
.
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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 5 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 Prooertv Dama!!ed or Cluttered Durin!! 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 further agrees to pay all costs required to repair the streets
and/or utility systems damaged or cluttered with debris when occurring as a 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, said notice to be sent to Developer by facsimile and U.S. Mail.
Developer shall have ten (10) days from the date of mailing (via certified mail) of such
notice to commence and diligently complete such clean up, repair or maintenance of
said public property to the satisfaction of the City COWlcil, 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 clean up by facsimile. In the event that
Developer fails to so clean up, repair or maintain said public property, 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 Wldertakes 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. Temoorarv Access Ri!!hts. 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
13
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Contract. .
B. The action or inaction of the City or Developer 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 COWlcil. Neither the City's nor Developer's failure to
promptly take legal action to enforce this Contract shall constitute a waiver or
release.
C. This Contract shall fW1 with the land and shall be recorded against the title to
the property. Developer agrees to cooperate with the City in recording this
Contract as the first item recorded after the filing of Said Plat in the Wright
COWlty Recorder's Office. Developer shall secure the subordination of all liens
recorded against the Subject Property to the terms of this Agreement. After the
Developer has completed all work and obligations required of it Wlder 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 (i.e. water supplied from the Joint Powers Water
Board water tower) will be handled by the Joint Powers Water Board or its .
successor with jurisdiction over the Subject Property. No connections to the
water system will be pennitted Wltil the Board or its successor has given final
approval.
E. The Developer and City represent to each other that, to the best of their
knowledge, as of the date of this agreement, the Plat complies with all City,
COWlty and state laws and regulations, including but not limited to: subdivision
ordinances, sign 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.
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 .
14
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good and marketable title shall consist of a Title Insurance Policy or
Commitment from Chicago Title Insurance Company, or an abstract of title
updated by an abstract company registered Wlder the laws of the State of
Minnesota.
14.
Dedications to the Citv.
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 upon the issuance of a certification of completion by the City
Engineer, shall dedicate the water main (as shown on Exhibit 2) to the City,
along with a 20-foot permanent easement for the watermain, said easement
centered upon said watermain. To the extent allowed by the Minnesota
Department of Health, Developer may locate sanitary sewer lines in a portion
of said permanent easement, provided said sanitary sewer lines do not interfere
with or otherwise hinder the City's ability to access, service or use said
watermain.
B.
The Developer shall dedicate to the City drainage easements over all ponds,
wetlands and ditches. Said easements shall be in the form and shall cover the
items as specified on the attached Exhibit 9. Prior to dedication, Developer
shall provide to the City "As-Boots" of all sanitary sewer mains, storm sewer
mains, storm water ponds, private drive, and water mains. Acceptance by City
of any dedication shall occur upon passage of a resolution to such effect by the
City Council.
C. The City hereby deems the Developer's park dedication requirements have
been satisfied with the obligations Wldertaken by Developer in this agreement.
D. The Developer shall reserve an easement for future dedication for a pedestrian
trail ten feet in width along the easterly property line of Lot 1, Block 1 at the
western right-of-way line of Wright COWlty Highway 19 along the entire length
of Lot 1, Block I of Said Plat, and along the easterly property line of Outlot A
at the western right-of-way line of Wright County Highway 19 along the entire
length of Outlot A. Developer shall dedicate said easement to the City free of
charge at such time as the City designs said trail.
E.
The Developer shall reserve for future dedication to the City, Wright COWlty,
and/or State of Minnesota, sufficient land for the construction of a west-boWld
exit ramp from Interstate 94 to Wright COWlty Highway No. 19. In the event
said west-boWld exit ramp is to be constructed, Developer shall dedicate to the
15
')
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 COWlty Highway No. 19 to the Interstate 94 west-boWld lane, provided,
however, that Developer shall have no obligation to dedicate right-of-way from
any lot other than Outlot A of Said Plat.
.
15. Indemnitv. Developer shall hold the City and its officers and employees hannless
from claims made by Developer and third parties for damages sustained or costs
incurred resulting from plat approval and development. The Developer shall
indemnify the City and its officers and employees for all costs or expenses which the
City may payor 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 resulting from plat approval and development. Third parties shall have no
recourse against the City Wlder this contract.
16. 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 bOWld by said plans and responsible for
implementation of said plans as herein incorporated.
.
17. Intel!ration Claus~ Modification bv Written Al!reement Onlv. This Agreement
represents the full and complete Wlderstanding 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.
18. 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 Wlder this paragraph, the parties agree to submit said dispute to arbitration by
the American Arbitration Association.
19. 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:
16
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20.
21.
22.
~l~
City of Albertville
c/o City Clerk
P.O. Box 9
Albertville,~ 55301
Telephone: (612) 497-3384
Albertville FactoI)' Outlets, LLC
c/o JMJ Properties, Inc.
107 Sinclair Drive
Muskegon, Michigan 49441
Telephone: (616) 798-4670
Facsimile: (616)
With a copy to :
Michael Knowlton
Culver, Sheridan, Knowlton, Even & Franks
250 Terrace Plaza
P.O. Box 629
Muskegon, Michigan 49443
Telephone: (616) 724-4320
Fax: (616) 724-4330
Assil!nment of Contract. The obligations of the Developer Wlder this Contract
cannot be assigned without the express written consent of the City COWlcil through
COWlcil resolution.
Time of the Essence. Time is of the essence in regard to the Wldertakings of the
parties in this agreement.
Al!reement Effect. This Agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the parties hereto.
CITY OF ALBERTVILLE,
By
Its Mayor
By
17
Its Clerk
.
DEVELOPER,
ALBERTVILLE FACTORY
OUTLETS, LLC.
By James A. Morse, Jr.
Its Manager
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
, 1999, 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
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this .. day of
, 1999, 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 COWlcil.
Notary Public
18
.
( .
I
.
Miduul C. Couri*
Andrew J. MaeArthur
Marcus W. Miller
· A Lro li"rIMd jn lllin0i8
COURl & MACARTHUR
Attorneys at Law
705 Central Avenut! East
PO Box 369
St. MiduJel, MN 55376
(612) 497-1930
(612) 497-2599 (FAX)
February 28,2000
Mr. Michael M. Knowlton
Culver Sheridan Knowlton Even & Franks
250 Terrace Plaza
P.O. Box 629
Muskegon, Michigan 49443
Re: City of Albertville; Outlets at Albertville; First Amendment to
Developer's Agreement.
. Dear Mr. Knowlton:
Please find enclosed a fully-executed original of the First Amendment to
Developer's/PlannedUnit Development Agreement for the Outlets at Albertville. I will
be sending the other original of this agreement to the Wright County Recorder's Office
for recording. Please contact me if you have any questions regarding this matter. Thank
you.
;:vc~
Michael C. Courl
Couri & MacArthur
Enclos~
Cc: ""Ms. Linda Goeb
Mr. Pete Carlson
.
)
\
MicJuul C. Couri.
Andrew J. MaeArthur
MfJTtus W. Miller
.Az", IJcms<<t i111IIbtois
COURl & MACARTHUR
Alto17le)W tit Law
It15 Central Avenue East
PO Box 369
St. Michael, MN 55376-0369
(612) 497-1930
(612) 497-2599 (FAX)
couriandmacanhur@pobox.com
.
February 28,2000
Wright COWlty Recorder
Wright County Government Center
10 N.W. 2nd Street
Buffalo,~ 55313
Re: City of Albertville; Outlets at Albertville.
Dear Wright County Recorder:
Please find enclosed for recording the First Amendment to Developer's/Planned
Unit Development Agreement for Outlets at Albertville and a check in the amount of
$19.50 for the recording fee. Can you please record this docwnent? Thank you. .
s;;:;r c..
Michael C. Couri
Couri & MacArthur
Enclosure
Cc: Ms. Linda Goeb
Mr. Mike Knowlton
.
,
.~
.
.
.
...
FIRST AMENDMENT TO DEVELOPER'S\PLANNED
UNIT DEVELOPMENT AGREEMENT
Outlets at Albertville
WHEREAS, On May 4, 1999, Albertville Factory Outlets, LLC, a
Michigan Limited Liability Company (hereinafter "Developer") and the City of
Albertville, a municipal corporation organized Wlder the laws of the State of
Minnesota (hereinafter "City"), entered into an agreement titled
"DEVELOPER'S\PLANNED UNIT DEVELOPMENT AGREEMENT, Outlets at
Albertville," (hereinafter "Developer's Agreement") relating to the construction
and operation of an outlet mall; and
WHEREAS, said Developer's Agreement is on file and recorded as
document number 677246 in the office of the Wright COWlty Recorder, Wright
COWlty, Minnesota; and
WHEREAS, paragraph 1.B. of said Developer's Agreement requires the
City to complete certain improvements to Wright COWlty State Aid Highway No.
19 (hereinafter "CSAH 19") by February 1,2000; and
WHEREAS, the City anticipates that all required improvements to CSAH
19 will be completed by February 1,2000, with the exception of the final
bituminous "wear course," which the City would like to install during the summer
of 2000; and
WHEREAS, the Developer is not opposed to the installation of said "wear
course" during the summer of 2000, provided that the installation of said "wear
course" is not performed during Outlets at Albertville business hours, and
provided that the cost to the Developer of installing the "wear course" will not
increase above the current bid price accepted by the City on September 7, 1999;
and
WHEREAS, the Developer estimates that its hours of operation will be
from 9:00 a.m. until 10:00 p.m.
NOW, THEREFORE, the Developer and City agree to amend the
Developer's Agreement as follows:
I. The last sentence of paragraph 1.B. which reads "Said improvements shall be
installed no later than February 1,2000" is hereby deleted.
1
'0."
, .
2. Paragraph I.B.l. shall be modified to read as follows: "The Developer shall pay
all City costs incurred in constructing the Highway Improvements, including
engineering costs, land acquisition costs (if any), construction costs, permit fees
(if any) and financing costs, but in no event shall Developer be responsible for
costs of the Highway Improvements in excess of $387,377. In the event that the
total cost of the Highway Improvements, including any change orders, rebates
or liquidated damages, are less than $387,377, the City shall refund to
Developer the difference between the actual cost and $387,377."
.
3. Paragraph l.B.4. is hereby added to the Developer's Agreement, said
paragraph to read as follows: "The City shall install said Highway
Improvements by Febmary 1, 2000, except the finalbitwninous ~wear course,'
which shall be installed no later than JIDle 30, 2000. The City shall not install
the 'wear course' between the hours of9:00 a.m. to 10:00 p.m."
4. All other provisions of the Developer's Agreement shall remain in full force
and effect.
CITY OF ALBERTVILLE,
.
DEVELOPER,
ALBERTVlLLEF ACTORY
OUTLETS, LLC.
~~/
By: Shane H. Bullou
Its Manager
ST A IE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
.
2
I
t.
Y- r-..
. '
.
.
.
).rmJ
~g instrmnent w.J.cknowledged before me 1bis ,,-UY
day of , ., Gby John Olson as Mayor of the City of
Albertviue, a Minnesota municipal corporation, on behalf of the city and pursuant to
the authority of the City Council.
STATE OF N1INNESOTA )
) ss.
COUNTY OF WRIGHT )
~C~
Notary Public
. '.' ~~.....ee~...::;~':~2-;'~,'
MICHAEL C. COllRI I,;
NOTARY PUBLIC-MINNESOTA
HENNEPIN COUNlY
My Commission Expires Jan. 31, 2000...
2-rnr/
The regoing instrmnent ,:" ~knOWledged before me 1bis I f4
day of , by Linda Goeb, as Clerk of the City of
Albertvi , a Minne ota municipal corporation, on behalf of the city and pursuant to
the authority of the CityCoWlcil.
STATE OF lYhcl\~a.n )
) ss.
COUNTYOF~
~~
Notary Public
The foregoing instrwnent was acknowled~ed before me this --' S+
day of be6emb<< , 1999, by S~e BuJ \{)l~"~h as
Manager of Albertville Factory Outlets, LLC, a Michigan Limitea Liability
Company.
~ ~ A. FALBI! .
MyConlmJssloO ='=.~
cR~lt, 0, &~
Notary Public
3
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.,
ll-l'(-l':!':!':! 1d5: 18PM FRm1 Couri & Me.cRrthur
49732112l P. 1212
TO
Miclulel C. Couri-
Andrew J. MacArthur
Ma,rcu$ W. Milkr
COURl 4 MACARTHUR
Altomeys Qt Law
705 Central A~ &II
PO &Jc 369
SI. Michael. MN m16
(612) 491-1930
(612) 497-2$99 (FAX)
.AI4<> li~i"lUINII
November 17, 1999
VIA FACSIMILE
Mr. Michael M. Knowlton
Mr. Scott Knowlton
Culver Sheridan Knowlton Even & Franks
. 250 Terrace Plaza
, P.O. Box 629
Muskegon, Michigan 49443
. Re: City ofAlbertviUe; Outlets at Albertville.
Deai'Messrs. Knowlton:
. Please fmd Ii second revision to the First Amendment to the Developer's ~
Agreement. Please note that I have changed the "refund" language to read that we will
refund the difference between $387,377 and a lower total cost, if the cost. comes in 19wer
than $387,377. I have also included "change orders, rebates or liquidated damages" in
the descJjption of total cost, and have shortened the pavement date to June 30, 2000,.
rather than July 31,.2000 as originally proposed. .
. As we discussed, if this agreement is to be approved. it needs to be signedan~
faxed back to the City (612-497..3210 fax) as soon as possible. I have left messages with
Pete Carlson and Linda Goeb stating that we do not have an: agreement at this point.; I
expect that Pete will wait as long as possible before scheduling the job, but I do not know
how long that may be. I have asked him to check with Linda to see if your fax has
arrived before committing to the paving this fall. Thank you for your efforts in
attempting to get this matter resolved.
~~cereJ';J.I':
r~~
Michael C. Couri
Couri & MacArthur
Enclosure
Cc: Ms. Linda Goeb
Mr. Pete Carlson
11-1(-1';1';1';1 l::1~;l':jt-'M t-ROM Couri & Mac~thur
TO
497321 ~ p . 03
FIRST AMENDMENT TO DEVELOPER'S\PLANl''ED
UNIT DEVELOPMENT AGREEMENT
Outlet1 at AlbertviUe
.
\VllEREAS, On May 4, 1999, Albertville Factory Outlets, LLC, a
Michigan Limited Liability Company (hereinafter "Developer") and the City of
Albertville, a municipal cOIpOration organized under the laws of the State of
Minnesota (hereinafter "City"). entered into an agreement titled
"DEVELOPER'S\PLANNED UNIT DEVELOPMENT AGREEMENT. Outlets at
Albertville," (hereinafter "Developer's Agreement") relating to the construction
and operation of an outlet mall; and
WHEREAS, said Developer's Agreement is on tile and recorded as
. document number 677246 in the office of the Wright County Recorder, Wright
County, Minnesota; and
WHEREAS, paragraph I.B. of said Developer's Agreement requires the
City to complete certain improvements to Wright County State Aid Highway No.:
19 (hereinafter "CSAH 19") by February 1. 2000; and
WHEREAS, the City anticipates that all required improvements to CSAH .
19 will be completed by February 1.2000, with the exception of the final '
bituminous "wear course, t. which the City would like to install during the summer
of 2000; and
WHEREAS, the Developer is not opposed to the installation of said "wear
course" during the summer of 2000, provided that the installation of said "wear
course" is not perfonned during Outlets at Albertville business hours, and
provided that the cost to the Developer of installing the "wear course" will not
increase above the current bid price accepted by the City on September 7, 1999;
and
WHEREAS, the Developer estimates that its hours of operation will be
from 10:00 a.m. until ]0:00 p.m.
NOW, THEREFORE, the Developer and City agree to amend the
Develope,'s Agreement as follows:
1. The last sentence of paragraph 1.B. which reads "Said improvements shall be,
installed no later than February 1, 2000" is hereby deleted.
1
.
.
..
.
ll-l"{-l':!':!':! \::l~:l':iPM FRa1 Couri & MacArthur
TO
4'373210 P. 04
2. Paragraph I.B .1. shall be modified to read as follows: ~'The Developer shall pay
all City costs incWTed in constructing the Highway Improvements, including
engineering costs, land acquisition costs (if any), cons~tion COS~ permit fees.
(if any) and fmancing costs. but in no event shall Developer be responsible for :
costs of the Highway Improvements in excess of $387,377. In the event that the
total cost of the Highway Improvements, including any change orders, rebates:
or liquidated damages. are less than $387,377, the City shall refund to
Developer the difference between the actual cost and $387,377."
3. Paragraph I.B.4. is hereby added to the Developer's Agreement, said
paragraph to read as follows: "The City shall install said Highway
Improvements by February 1,2000, except the final bituminous 'wear course,'
which shall be installed no later than JW1e 30, 2000. The City shall not install
the 'wear course' between the hours of 10:00 a.m. to 10:00 p.m."
4. All other provisions of the Developer's Agreement shall remain in full force
and effect.
CITY OF ALBERTVILLE,
By
Its Mayor
By
Its Clerk
DEVELOPER,
ALBERTVILLE FACTORY
OUTLETS, LLC.
By:
lts Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
2
11-1'(-1 ':f:;';; ~:>; ~1Ot"IVI rt..:UIVI l.our 1 6 IVlaCf-rthur
IU
4':f(,jdt:l P"05
The foregoing instrument was acknowledged before me this _
day of , 1999, by John Olson as Mayor of the City of
Albertville, a Minnesota municipal coI]>orat.ioD, on behalf of the city and pmsU8Xlt <0
the authority of the City Council.
Notary Public
STATE OF MINNESOTA )
) 5S.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this I
day of . 1999, by Linda Goeb,as Clerk of the City ~f
I Albertville, a Minnesota municipal corporation, on behalf of the: city and pursuant to
the authority of the City Council. :
Notary Public
STATE OF
)
) 5S.
)
COUNTY OF
, The foregoing instn,lment was acknowledged before me this
day of , 1999, by
'Manager of Albertville Factory Oudets. LLC, a Michigan Limited
Company.
Notary Public
3
as
Liability
.
.
.
'r ~ ."",--(
r ,. ,
.
.
Dated:
ALBERTVILLE FACTORY OUTLETS, LLC
By: James A. Morse, Jr.
Its: Manager
STATE OF )
) ss.
COUNTY OF )
.
The foregoing instrument was acknowledged. before me this day of
, 1999, by James A. Morse, Jr., manager of Albertville Factory
Outlets, LLC, Grantor.
Notary Public
DRAFTED BY:
Couri & MacArthur Law
Office
P.O. Box 369
705 Central A venue East
St. Michael,!v1N 55376
(612)497-1930
.
5
677246
.
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