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2002 Draft # 5 Development AgreementDRAFT #5, November 26, 2002 DEVELOPER'S~PLANNED UNIT DEVELOPMENT AGREEMENT Outlets at Albertville Second Addition THIS AGREEMENT, entered into this day of , 2002 by and between LAKEVIEW OUTLETS, LLC, a Michigan Limited Liability Company, (hereinafter `Developer') and the CITY OF ALBERTVII.,LE, a municipal corporation organized under the laws of the State of Minnesota (hereinafter `City'), all of which are collectively referred to herein as `the Parties'; 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, 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 "Outlets at Albertville Second Addition" and may sometimes hereinafter be referred to as the "Subject Property" or "Said Plat"; and WI~REAS, 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 Outlets at Albertville 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 Subject Property, said improvements to be installed and/or financed by Developer; WHEREAS, the City further requires that certain on- and off-site improvements be 1 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 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, sanitary sewer, and highway improvements as described below: A. Water Main. The Developer shall construct a 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 June 30, 2004. Said 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 in accordance with Paragraph 16 hereof, 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 worlananship. 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. Sewer Main. The Developer shall construct a sanitary sewer on and off Said Plat in accordance with the plans and specifications attached hereto as Exhibit 2. The City Engineer shall inspect the installation of said sanitary sewer on a regular basis. Said sanitary sewer shall be installed no later than June 30, 2004. Said sanitary 2 sewer 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 in accordance with Paragraph 16 hereof, that the sanitary sewer 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 sanitary sewer, Developer shall provide the City with lien waivers from all contractors and subcontractors engaged to construct said sanitary sewer. 3. Developer shall acquire all necessary permits required for the installation of the sanitary sewer. C. Highway Improvements. Subject to approval from the Wright County Highway Department, the City shall construct highway improvements to Wright County State Aid Highway No. 19 ("CSAH 19") at the intersection the Outlets of Albertville private drive and CSAH 19 consisting of a CSAH 19 northbound right turn lane into Said Plat, a CSAH 19 southbound left turn lane into Said Plat, extension of the CSAH 19 median north of said intersection to the northerly entrance to Said Plat, the northerly CSAH 19 entrance into Said Plat and accompanying turn lane, and the fourth "leg" of the traffic signal (red, yellow and green) to be installed at the intersection of CSAH. 19 and the private drive located on Said Plat (collectively, "Highway Improvements"). All such required Highway Improvements shall be constructed in accordance with Wright County Highway standards and applicable City standards. The City Engineer and/or County Engineer shall inspect all Highway Improvements on a regular basis. Provided there are no delays beyond the City's control, said improvements shall be substantially completed no later than October 3 1, 2003. 1. 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. 2. The City shall specially 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 3 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 to Developer. Developer understands that the cost of said improvements is not calculable at this time and that Developer's project would be delayed if the City and Developer waited for said costs to be calculable before entering into this Developer's Agreement. Developer requests that the City proceed with the final approval of Said Plat and enter into this Developer's Agreement prior to the time said costs are calculable. Consequently, Developer specifically waives any assessment appeal rights which may arise from the fact that said costs have not been calculated prior to the execution of this Developer's Agreement. Developer hereby waives its right to appeal said special assessment to the District Court 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. 4. In the event the City has not completed the Highway Improvements by June 30, 2004, the City shall provide reasonable access to Said Plat for Developer's business purposes after said date and such incomplete road improvements shall not be a basis for denying Developer an occupancy permit. 2. Construction of On- and Off-Site Improvements. A. Developer shall construct all on- and off-site improvements as detailed in attached Exhibit 3. Said on- and off-site improvements shall be installed no later than June 30, 2004 with the exception of erosion control, which shall be installed pursuant to Paragraph 11 hereof. B. Developer shall install at Developer's expense all landscaping as shown on the attached Exhibit 4. Developer warrants that all trees, bushes, shrubs and other landscaping plantings shall survive for two years from the date of planting, and Developer shall replace any trees, bushes, shrubs or other landscape plantings that die within said two-year period. C. Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground where commercially practicable, accessible to all lots and in compliance with all 4 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; D. Developer agrees to install all utilities substantially according to the Utility Plan attached as Exhibit 2. E. Developer shall provide 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. Planned Unit Development and Intended Use of Property. The City hereby establishes a Planned Unit Development (PUD) on Said Plat, subject to the terms and conditions contained in this Agreement. It is the Developer's and City's intent that up to four buildings containing retail "factory outlet" shops be constructed on Lot 1, Block 1 of 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. Developer shall construct only those buildings and other structures as shown on the attached Exhibits 3 and 6. Said buildings shall be constructed in substantially the same size, shape and location as shown on the attached Exhibits 3 and 6. All buildings shall be constructed in substantial conformity to and of substantially the same materials as shown on the attached Exhibit 6. All trash receptacles shall be located exclusively within the trash enclosure areas shown on the attached Exhibit 3. B. 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. C. Developer shall be allowed to install and maintain signage related to the uses permitted on Said Plat in the following manner: 5 1. Developer may erect aback-lit "Mall Center" pylon sign that complies with City signage ordinances in effect at the time said sign is to be erected, but in no circumstances shall said sign be greater than 30 feet in height. Said sign shall be placed in a location to be approved by the City. 2. The Developer may attach single-faced, lighted individual business signs to the buildings identified in pazagraph 3.A. above. Said individual business signs shall not exceed three feet in height, and shall be installed below the pazapet of each building. The total squaze footage of all said individual business signs shall not exceed 15% of the total square footage of the building frontage of all buildings erected on Lot 1, Block 1 of Said Plat. Total building frontage shall be calculated to include all building area on the front side of the building from the top of the sidewalk to the top of the parapet, including window glass and doors. 3. Said business signage and pylon sign shall be turned off at the earlier of 11 p.m. or 2 hours after business hours and shall remain off until the earlier of daylight or opening of business the next day. D. Developer shall install parking lot lighting, exterior building lighting and security lighting in substantially the same form, type and location as shown on the attached Exhibit 8. Said lighting shall be dimmed to an illumination of not more than 1.5 foot candles (as measured at the source) the eazlier of 11 p.m. or 2 hours after business hours and shall not be restored to full intensity until the earlier of daylight or opening of business the next day. E. Developer shall perform all necessary maintenance, and shall keep the private drive and all sidewalks located on said plat clear of snow in a timely, reasonably commercial manner, all at Developer's expense. 4. Suret~Requirements. Developer will provide the City with cash or an irrevocable letter of credit as security that the obligations of the Developer under this Agreement 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 $2,035,708.00, representing the sum of 100% of the estimated cost of installing the Municipal Improvements ($1,858,000.00) and 150% of the estimated cost of installing the landscaping $118,472.00). Developer shall provide said surety to the City prior to the issuance of any building permits for any structures on Said Plat. 5. Suretv Release. 6 A. Developer may request and receive 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 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 Suretv. A. In the event the Developer fails to cure a default after proper notice by the City in accordance with paragraph 6 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 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 7 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 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 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 8 prosecute said cure to completion. B. Paragraph 7A shall not apply to any acts or rights of the City under pazagraph 6.C. above, and only the notice specified in pazagraph 6.C need be given to the Developer as a condition precedent to the City declaring a default or drawing upon the expiring irrevocable letter of credit as therein authorized. The City may elect to give notice to Developer of the City's intent to draw upon the surety without waiving the City's right to draw upon the surety at a future time without notice to the Developer. C. Breach of any of the 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. Shared Private Drive and Access to Wright Count~ighway No 19 Subject to approval from the Wright County Highway Department, the Developer shall be allowed two access points to Wright County State Aid Highway No. 19 (CSAH 19). A. The north access point shall be a restricted access point in which traffic may only enter Said Plat from the northbound lane of CSAH 19. No traffic shall be allowed to exit Said Plat from the north access. The north access shall be a private driveway and 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 unless the driveway becomes a shazed driveway pursuant to this pazagraph, in which case Developer and the landowner which will shaze in such driveway shall share maintenance costs as set out below. B. The main entrance driveway (the south entrance) connecting to Wright County Highway No. 19 shall remain a private driveway. Developer shall construct said driveway at Developer's 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 unless the driveway becomes a shazed driveway pursuant to this pazagraph, in which case Developer and the landowner which shaze such driveway shall share maintenance costs as set out below. C. Developer shall permit the owner of the property immediately to and abutting on the north property line of Said Plat ("North Property") to use the north access for ingress to the North Property at the locations shown on the attached Exhibit 3, provided that: 1. The City requires that Developer provide access to the North Property 9 via said private driveways located on the North Property; 2. The owner of the North Property agrees to construct those portions of the private driveways located on the North Property to the same weight and width specifications as required by this agreement, unless other specifications are required by the City; 3. The owner of the North Property agrees that the costs of maintenance and repair of those portions of the shared private driveways which are located on the North Property shall be borne by the owner of the North Property (in which case, Developer shall be responsible for the cost of maintenance and repair of that portion of the shared private driveways which are located on Developer's property), unless otherwise agreed by Developer and the owner of the North Property; 4. The owner of the North Property agrees that except for temporary and reasonable activities required in connection with construction, maintenance, repair and replacement, no obstruction which would prevent, restrict or otherwise inhibit the passage of pedestrians or vehicles over any portion of the private driveway shall be erected, condoned or permitted by the owner of any property benefited with the private driveway, its tenants, invitees or licensees, nor shall any other conduct, passive or affirmative, including but not limited to the parking or storage of vehicles, be permitted which would in any manner restrict the rights of the respective owners of any of the benefited property, their tenants, invitees and licensees to fully utilize the shared private driveway for the purposes permitted herein. However, in no .event shall any owner allow any construction-related traffic that will cause damage to the shared driveway to utilize the shared driveway, nor shall any owner allow traffic to use said shared driveway which has a weight rating which exceeds the weight rating for which said shared driveway was designed and constructed. 5. The owner of the North Property agrees that should it fail to repair or maintain said shared private driveway, that Developer may undertake making or causing any defective condition existing on said private shared drive to be cleaned up, repaired or maintained as outlined below: a. For all conditions not arising from the accumulation or deposit of snow on the shared drive, Developer shall give the defaulting owner of the North Property fifteen (15) days notice via certified mail and facsimile transmission thereof, and if the 10 defaulting owner of the North Property fails to cure within 15 days of the notice (or fails to prosecute said cure diligently to completion if it cannot reasonably be finished within said 15 day period), Developer will be granted the right and the privilege to complete the defaulting owner's obligations and to bring legal action against the defaulting owner of the North Property to collect any sums due for the cost of the work performed, plus all costs and attorney's fees incurred in enforcing this Agreement. b. The fifteen day notice period shall be deemed to run from the date of deposit in the United States Mail and the transmission of the facsimile. c. For all conditions arising from the accumulation or deposit of snow on the shared drive, Developer shall give the defaulting owner of the North Property twenty-four hours notice via telephone and facsimile transmission thereof, and if the defaulting owner of the North Property fails to cure within said twenty-four hour period, Developer will be granted the right and the privilege to complete the defaulting owner's obligations and to bring legal action against the defaulting owner of the North Property to collect any sums due for the cost of the work performed, plus all costs and attorney's fees incurred in enforcing this Agreement. 6. Developer shall enter into an easement agreement with the owner of the North Property in substantially the same form and substantially the same terms as shown on the attached Exhibit 9, provided the owner of the North Property agrees to enter into said easement. 7. Developer may construct said shared private driveway as a joint driveway entrance from CSAH 19 located on the common property line of the North Property and Said Plat (subject to approval by the City Engineer and the Wright County Highway Engineer) or Developer may construct said shared private driveway with the entrance from CSAH 19 entirely on Said Plat as shown on the attached Exhibit 3, provided however that: i. In the event that the Owner of the North Property meets the conditions of Paragraph 8.C.1-6 and notifies Developer before March 15, 2003 that it desires a joint driveway entrance from CSAH 19 and that the Owner of the North 11 Property intends to construct its portion of said joint driveway entrance prior to October 31, 2003, Developer shall construct said private driveway as a joint driveway entrance from CSAH 19 located on said common property line, subject to approval by the City Engineer and the Wright County Highway Engineer. ii. In the event that Developer constructs said shared private driveway as shown on the attached Exhibit 3, and the Owner of the North Property meets the conditions of Paragraph 8.C.1-6 and notifies Developer after March 15, 2003 that it desires a joint driveway entrance from CSAH 19, Developer shall permit the Owner of the North Property to construct said joint driveway entrance (subject to approval by the City Engineer and the Wright County Highway Engineer) at the sole expense of the Owner of the North Property, except that Developer shall pay for the cost of relocating the trash compactor, its concrete pad and the accompanying screening to a location acceptable to the City. In such event, the Owner of the North Property shall coordinate the timing of all such construction with Developer and shall proceed with construction in a manner reasonably calculated to minimize the disruption to Developer's activities on Said Plat. iii. Written approval of the City Engineer as to the location of the joint driveway entrance shall be sufficient to meet the requirements of this paragraph 8.C.7. Delays on the part of the Owner of the North Property in constructing a joint driveway entrance shall not be grounds for the City to deny the issuance of building permits or occupancy permits. 8. Notwithstanding anything contained in Paragraph 8 of this Agreement, Developer shall be allowed to use the easement area shown on attached Exhibit 3 for parking, drive lane, and other permissible mall-related uses until such time as the conditions of Paragraph 8.C.1-6 are met. D. Developer shall permit the owner of the property immediately to and abutting on the south property line of Said Plat ("South Property") to use the south access for ingress to the South Property at the location shown on the attached Exhibit 3, provided that: 1. The City requires that Developer provide access to the South Property 12 via said private driveway located on the South Property. 2. The owner of the South Property agrees to construct that portion of the private driveway located on the South Property to the same weight and width specifications as required by this agreement, unless other specifications aze required by the City. 3. The owner of the South Property agrees that the costs of maintenance and repair of that portion of the shared private driveway which is located on the South Property shall be borne by the owner of the South Property. The owner of the South Property shall be responsible for 25% of the maintenance cost of that portion of the shared private driveway located on Said Plat. For purposes of snow removal, costs attributable to the shared private drive on Said Plat shall be apportioned proportionate to the amount of square footage of shared private drive on Said Plat to the total square footage of pazking lot and total private drive on Said Plat. Other maintenance costs shall be apportioned based on actual maintenance costs incurred for work on the shared portion of the private drive located on Said Plat. Developer and the owner of the South Property may alter this cost sharing formula by mutual agreement. 4. The owner of the South Property agrees that except for temporary and reasonable activities required in connection with construction, maintenance, repair and replacement, no obstruction which would prevent, restrict or otherwise inhibit the passage of pedestrians or vehicles over any portion of the private driveway shall be erected, condoned or permitted by the owner of any property benefited with the private driveway, its tenants, invitees or licensees, nor shall any other conduct, passive or affirmative, including but not limited to the pazking or storage of vehicles, be permitted which would in any manner restrict the rights of the respective owners of any of the benefited property, their tenants, invitees and licensees to fully utilize the shared private driveway for the purposes permitted herein. However, in no event shall any owner allow any construction-related traffic that will cause damage to the shared driveway to utilize the shared driveway, nor shall any owner allow traffic to use said shared driveway which has a weight rating which exceeds the weight rating for which said shared driveway was designed and constructed. 5. The owner of the South Property agrees that should it fail to repair or maintain said shared private driveway, that Developer may undertake making or causing any defective condition existing on said private 13 shared drive to be cleaned up, repaired or maintained as outlined below: a. For all conditions not arising from the accumulation or deposit of snow on the shared drive, Developer shall give the defaulting owner of the South Property fifteen (15) days notice via certified mail and facsimile transmission thereof, and if the defaulting owner of the South Property fails to cure within 15 days of the notice (or fails to prosecute said cure diligently to completion if it cannot reasonably be fuiished within said 15 day period), Developer will be granted the right and the privilege to complete the defaulting owner's obligations and to bring legal action against the defaulting owner of the South Property to collect any sums due for the cost of the work performed, plus all costs and attorney's fees incurred in enforcing this Agreement. b. The fifteen day notice period shall be deemed to run from the date of deposit in the United States Mail and the transmission of the facsimile. c. For all conditions arising from the accumulation or deposit of snow on the shared drive, Developer shall give the defaulting owner of the South Property twenty-four hours notice via telephone and facsimile transmission thereof, and if the defaulting owner of the South Property fails to cure within said twenty-four hour period, Developer will be granted the right and the privilege to complete the defaulting owner's obligations and to bring legal action against the defaulting owner of the South Property to collect any sums due for the cost of the work performed, plus all costs and attorney's fees incurred in enforcing this Agreement. 6. Developer shall enter into an easement agreement with the owner of the South Property in substantially the same form and substantially the same terms as shown on the attached Exhibit 10, provided the owner of the South Property agrees to enter into said easement. 7. Notwithstanding anything contained in Paragraph 8 of this Agreement, Developer shall be allowed to use the easement area shown on attached Exhibit 3 for parking, drive lane, and other permissible mall-related uses until such time as the conditions of Paragraph 8.D.1-6 are met. 14 9. Sanitary Sewer and Water Trunk Line Fees. A. Developer agrees that the City's Sanitary Sewer Trunk Line Fee Ordinance requires the Developer to pay $1,100.00 per acre in sanitary sewer trunk line fees. There are 16.46 acres in Said Plat. Therefore, the Sanitary Sewer Trunk Line Fees for this plat would be $18,106.00 ($1,100.00 x 16.46 acres). Developer will pay said fee prior to the release of the final plat by the City. B. Developer shall be required to pay trunk water line fees of $1,400.00 per acre. There are 16.46 acres in Said Plat. Therefore the water trunk line fee for Said Plat is $23,044.00 ($1,400.00 x 16.46 acres). Developer will pay said fee prior to the release of the final plat by the City. 10. 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 . 11. 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. 12. Ditch Cleaning. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from Subject Property may drain, and shall make any necessary improvements or go through any necessary procedures to ensure 15 compliance with any federal, state, county or city requirements, all at Developer's expense. 13. Maintain Public Property -Costs and Expenses. During the development of Said Plat, Developer agrees to repair any damage caused by Developer, its contractors, sub-contractors or agents 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. Developer further agrees to repair or clean the streets and/or utility systems damaged or cluttered by Developer, its contractors, sub-contractors or agents during the development of Said Plat. In the event Developer fails to clean-up, maintain or repair the public property as provided above, the City shall provide the Developer with a Notice of its intent to clean-up, repair or maintain such public property, as the case may be, said notice to be sent to Developer by facsimile and U.S. Mail. Thereafter, Developer shall have ten (10) days form the date of receipt of such Notice to commence and diligently complete such clean-up, repair or maintenance of said public property as provided herein within said ten (10) day period, or in the event that an emergency repair is necessary, the City may undertake making or causing said public property to be cleaned-up, repaired or maintained, and the Developer shall reimburse the City for all such reasonable expenses related thereto 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 maybe withdrawn by the City from the surety described above and/or assessed against any or all of Said Plat. 14. 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. 15. Miscellaneous. A. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Agreement 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 Agreement. B. The action or inaction of the City or Developer shall not constitute a waiver or amendment to the provisions of this Agreement. 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 Agreement shall constitute a waiver or release. 16 C. This Agreement 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 Agreement 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 Agreement, 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, subject to the provisions of this Section, the Developer shall cease work until there is compliance with said laws and regulations. F. Prior to the execution of this Agreement and prior to the start of any construction on the Subject Property, Developer shall provide the City with evidence of good and marketable title to all of Subject Property. Evidence of good and marketable title shall consist of a Title Insurance Policy or Commitment from Chicago Title Insurance Company, or an abstract of title updated by an abstract company registered under the laws of the State of Minnesota. G. Developer shall pay any and all fees pursuant to any State, County or City ordinance or statute related to Said Plat or the Subject Property. H. Developer agrees that all construction items required under this Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. 17 I. If building permits are issued prior to the completion and acceptance of public improvements, the Developer assumes all liability and the costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, material, men, employees, agents, or third parties. J. Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the Wright County Soil and Water Conservation District and/or the City and any applicable provisions of State law. K. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety and welfare. Developer aclaiowledges and agrees that the City is currently in the process of expanding its wastewater treatment plant capacity. Developer further acknowledges and agrees that delay in the availability of wastewater treatment plant capacity may occur for some portions of Said Plat. Provided that the City's wastewater treatment capacity is not reduced by conditions beyond the City's control or by order of a Court or a Minnesota state agency with jurisdiction over said wastewater treatment plant, the City shall reserve adequate capacity for Developer's uses for which occupancy permits are issued prior to July 1, 2004. In no event shall such reservation exceed 13,500 gallons per day of treatment capacity. L. .Developer shall not place any structure at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinary high water level or less than one foot above the 100-year flood level of any adjacent water body or wetland. If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the property has been approved by the Building Inspector or a professional soils engineer. M. Developer shall obtain all required driveway, utility and other permits as required by either the City Engineer and/or Wright County. N. Developer shall, at Developer's expense, cause to be installed a sidewalk on the Outlets at Albertville Plat as shown on Exhibit 11. 16. Dedications to the Citv. 18 A. Municipal Improvement Dedications. The Developer, upon presentation to the City of evidence of good and marketable title to Subject Properly, and upon completion of all construction work and certification of completion by the City Engineer, shall dedicate all sanitary sewer mains and water mains to the City. Upon acceptance of dedication, Developer shall provide to the City "As-Builts" of all sanitary sewers and water mains. Acceptance by City of any dedication shall occur upon passage of a resolution to such effect by the City Council. B. Park Dedications Developer acknowledges and agrees that in order to satisfy the City's park dedication requirements for the commercially zoned land in Said Plat, Developer shall pay $5,000 per acre. Said commercially zoned land in Said Plat consists of 16.46 acres. Therefore, Developer shall pay the City a cash payment totaling $82,300.00 (16.46 acres x $5,000 per acre) which shall satisfy the park dedication requirement for this property arising from the approval of Said Plat. C. Easements 1. The Developer shall dedicate to the City drainage easements over all ponds, wetlands and ditches. Developer shall remain responsible for the maintenance of the ponds and wetlands. 2. Developer shall dedicate 10 feet of right-of--way abutting CSAH 19 for trail, utility and highway purposes as shown on Exhibit 12. 3. Upon performance by Developer as required under this paragraph 16, the City shall take all reasonable steps necessary to accept the dedications by Developer to the City which are required pursuant to this Agreement. 17. Indemnitv. 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 be required to 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 Agreement. 19 18. 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. 19. Integration Clause, Modification ~ 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. 20. 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 binding arbitration by the American Arbitration Association. 21. Notification Information. Any notices given to the Parties as herein required shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following Parties: City of Albertville c/o City Clerk P.O. BOX 9 Albertville, MN 55301 Telephone: (612) 497-3384 Lakeview Outlets, LLC C/o JMJ Properties, Inc. 107 Sinclair Drive Muskegon, Michigan 49441 Telephone (231) 798-4670 Facsimile (231) 798-4611 With a copy to 20 Michael Knowlton Pamenter O'Toole 175 West Apple Avenue P.O. Box 786 Muskegon, Michigan 49443-0786 Telephone: (231) 722-5428 Fax: (231) 728-2206 22. Assignment of Agreement. The obligations of the Developer under this Agreement cannot be assigned without the express written consent of the City Council through Council resolution, except that Developer may assign its rights and obligations under this agreement without further consent to CPG Partners, L.P., a Delaware Limited Partnership, provided that the surety provided by Developer shall not be released by virtue of such assignment unless and until an acceptable substitute security is provided by the assignee. 23. Time of the Essence. Time is of the essence in regard to the undertakings of the Parties in this Agreement. 24. 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 Its Clerk DEVELOPER, LAKEVIEW OUTLETS, LLC. By Shane Bullock Its Manager 21 STATE OF l~~INNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2002, by Scott Wallace 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 A~IINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2002, by Linda Goeb, as Clerk of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. Notary Public STATE OF ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _ 2002, by as Manager of LLC, a Michigan Limited Liability Company. day of Lakeview Outlets, 22 Notary Public This Agreement drafted by: Couri & MacArthur Law Office P.O. Box 369 St. Michael, MN 55376 (763) 497-1930 23 EXHIBIT 1 The legal description of the property to which this Agreement applies is described as follows: Lot 1, Block 1, Outlets at Albertville Second Addition, Wright County, Minnesota.