2002-11-26 Draft #5 Development AgreementDRAFT #5, November 26, 2002
DEVELOPER'S~PLANNED UNIT DEVELOPMENT AGREEMENT
Outlets at Albertville Phase Three
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 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, 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 Phase Three" 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 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
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basis. Said sanitary sewer shall be installed no later than June 30, 2004. Said
sanitary 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 installed no later than October 31, 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
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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;
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 In ended of Pronerty~
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.
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5. S ~r . Releac~e.
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 surety.
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
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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
6.C. above, and only the notice specified in paragraph 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 Accec o Wright County Hig1~y 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 shared driveway pursuant to this paragraph, in which case Developer
and the landowner which will share 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 shared driveway pursuant to this paragraph, in which case
Developer and the landowner which share 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
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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
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:
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private driveway located on the South 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 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 parking 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 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 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
shared drive to be cleaned up, repaired or maintained as outlined below:
a. For all conditions not arising from the accumulation or
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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. Alzandonment of Project -Costs and F.x nc c 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 ('ontrol 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. iitch 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
compliance with any federal, state, county or city requirements, all at Developer's
expense.
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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.
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A. Municipal Improvement Dedications.
The Developer, upon presentation to the City of evidence of good and
marketable title to Subject Property, and upon completion of all construction
work and certification of completion by the City Engineer, shall dedicate all
roads, road and trail right-of--ways, curbs, gutters, ponds, sewers and water
mains to the City. Upon acceptance of dedication, Developer shall provide to
the City "As-Builts" of all sewers, water mains, and roads. 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.
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. 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 be required to pay as a result of adverse
judgments or awards of Court resulting from plat approval and development. Third
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With a copy to
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. A~gnment 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
Notary Public
This Agreement drafted by:
Court & MacArthur Law Office
P.O. Box 369
St. Michael, MN 55376
(763) 497-1930
\\Bobnrype\bob's c\HObWbertville\Outla Mall\Oiulds at Albatvilte Phaee 3 Pi1D Draft 2.doc
23
EXI~IT 2
Utility Plan
EXHIBIT 3
Site Plan
EXHIBIT 4
Landscape Plan
EXHIBIT 5
Grading and Erosion Control. Plan
EXHIBIT 6
Building Elevations and Floor Plans
25
No overnight storage or display shall be allowed outside any building for any of the
uses listed on this exhibit.
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EXHIBIT 9
ACCESS EASEMENT
Lakeview Outlets, LLC, a Michigan Limited Liability Company ("Developer") and
("North Property Owner"), hereby grant perpetual, reciprocal
easements of access according to the following terms:
Developer owns Lot 1, Block 1 of Outlets at Albertville Phase Three, Wright County,
Minnesota ("Outlet Property").
2. North Property Owner owns property described as
("North Property").
3. Developer shall permit ingress and egress to and from the North Property over the
Outlet Property at the locations shown on the attached Exhibit A ("Shared Private
Driveways").
4. North Property Owner shall permit ingress and egress to and from the Outlet Property
over the North Property at the Shared Private Driveways.
5. The benefited and burdened properties under this Agreement are the Outlet Property
and the North Property.
6. The cost of maintenance and repair of those portions of the Shared Private Driveways
which are located on the North Property shall be borne by the North Property Owner.
7. The cost of maintenance and repair of those portions of the Shared Private Driveways
which are located on the Outlet Property shall be borne by the Developer.
8. 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 Shared Private Driveways shall be erected, condoned or permitted by
the owner of any property benefited by the Shared 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
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EXHIBIT 10
ACCESS EASEMENT
Lakeview Outlets, LLC, a Michigan Limited Liability Company ("Developer") and
("South Property Owner"), hereby grant perpetual, reciprocal
easements of access according to the following terms:
1. Developer owns Lot 1, Block 1 of Outlets at Albertville Phase Three, Wright County,
Minnesota ("Outlet Property").
2. South Property Owner owns property described as
("South Property").
3. Developer shall permit ingress and egress to and from the South Property over the
Outlet Property at the location shown on the attached Exhibit A ("Shared Private
Driveway").
4. South Property Owner shall permit ingress and egress to and from the Outlet Property
over the South Property at the Shared Private Driveway.
5. The benefited and burdened properties under this Agreement are the Outlet Property
and the South Property.
6. 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 parking 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 Private Drive located on Said Plat.
7. 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 Shared Private Driveway shall be erected, condoned or permitted by the
owner of any property benefited by the Shared Private Driveway, its tenants, invitees
or licensees, nor shall any other conduct, passive or affirmative, including but not
31
[Signature Blocks]
[Notary Blocks]
["Drafted by" Statement}
33
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 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. 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
2
basis. Said sanitary sewer shall be installed no later than June 30, 2004. Said
sanitary 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 installed no later than October 31, 2003.
I. 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
3
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 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
4
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;
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 a 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.
5
C. Developer shall be allowed to install and maintain signage related to the uses
permitted on Said Plat in the following manner:
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 paragraph 3.A. above. Said individual
business signs shall not exceed three feet in height, and shall be installed
below the parapet of each building. The total square 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 earlier 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. Sure Renuirements. 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
$ ,representing the sum of 100% of the estimated cost of installing the
Municipal Improvements ($ )and 150% of the estimated cost of
installing the landscaping $ ). Developer shall provide said surety to
the City prior to the issuance of any building permits for any structures on Said Plat.
6
5. Sure Release.
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. ce of ~rety.
P-
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
7
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 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
8
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
6.C. above, and only the notice specified in paragraph 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 Accecc to Wrig Co ~n HiglLw~y No 19 Subject to
approval from the Wright County Highway Deparhnent, 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 shared driveway pursuant to this paragraph, in which case Developer
and the landowner which will share 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 shared driveway pursuant to this paragraph, in which case
Developer and the landowner which share 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
9
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
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:
10
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
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:
11
i. In the event that the Owner of the North Property meets the
conditions of Paragraph 8.C.1-6 and notifies Developer before
April 30, 2003 that it desires a joint driveway entrance from
CSAH 19 and that the Owner of the North 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 191ocated
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 April 30, 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.
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
via said private driveway located on the South Property.
2. The owner of the South Property agrees to construct that portion of the
12
private driveway located on the South 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 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 parking 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 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 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
shared drive to be cleaned up, repaired or maintained as outlined below:
a. For all conditions not arising from the accumulation or
13
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 1 S
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 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.
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.
9. Sanitary Sewer and Water Trunk Line Fees.
14
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 - oct and .xnen~ 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. Frosion 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
compliance with any federal, state, county or city requirements, all at Developer's
expense.
15
13. Maintain Public Proper -Costs and Exnence .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 maybe, 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 may be withdrawn by the City from the surety
described above and/or assessed against any or all of Said Plat.
14. Te~.porary Access Rig ts. 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 acknowledges 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 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. I?edications to the City.
18
A. Municipal Improvement Dedications.
The Developer, upon presentation to the City of evidence of good and
marketable title to Subject Property, and upon completion of all construction
work and certification of completion by the City Engineer, shall dedicate all
roads, road and trail right-of--ways, curbs, gutters, ponds, sewers and water
mains to the City. Upon acceptance of dedication, Developer shall provide to
the City "As-Builts" of all sewers, water mains, and roads. 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.
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. Indemnit~_ 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
19
parties shall have no recourse against the City under this Agreement.
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 b~ 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
20
With a copy to
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 MINNESOTA )
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 MINNESOTA )
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 day of
2002, by
LLC, a Michigan Limited Liability Company.
as Manager 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
\\Hobmppe\bob's c\HobWbatville\Outla Mall\Outlels at Albertville Phase 3 P[1D Draft 2.doc
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 Phase Three, Wright County, Minnesota.
24
EXHIBIT 2
Utility Plan
EXHIBIT 3
Site Plan
EXIIIBIT 4
Landscape Plan
EXHIBIT 5
Grading and Erosion Control. Plan
EXIIIBIT 6
Building Elevations and Floor Plans
25
EXHIBIT 7
PERMITTED USES FOR LOT 1, BLOCK 1
OUTLETS AT ALBERTVILLE PHASE THREE
The following uses shall be allowed on Lot 1, Block 1 of the Outlets at Albertville Phase
Three Plat:
1. Antique or gift shop.
2. Art and school supplies.
3. Auto accessory store.
4. Bakery goods and baking of goods for retail sales on the premises.
5. Bath and bedding sales.
6. Books, office supplies or stationary stores.
7. Camera and photographic materials.
8. Candy, ice cream, popcorn, nuts, frozen desserts and soft drinks.
9. Carpet, rugs and tile.
10. Coin and philatelic stores.
11. Computers and computer accessories sales and service.
12. Convenience store without gasoline sales.
13. Costume, clothes rental.
14. Delicatessen.
15. Department and discount stores.
16. Drug store.
17. Florist shop.
18. Furniture stores.
19. Furriers when conducted only for retail trade on premises.
20. Garden supply stores.
21. Gift or novelty store.
22. Hobby store.
23. Household appliance sales and repair.
24. Jewelry stores.
25. Kitchenware sales.
26. Leather goods and luggage stores.
27. Paint and wallpaper sales.
28. Record-music shops.
29. Restaurants and on and off-sale liquor.
30. Sewing machine sales and service.
31. Shoe stores.
32. Sports and exercise equipment sales.
33. Wearing apparel and clothing stores.
26
No overnight storage or display shall be allowed outside any building for any of the
uses listed on this exhibit.
27
EXHIBIT 8
Lighting Plan
28
EXHIBIT 9
ACCESS EASEMENT
Lakeview Outlets, LLC, a Michigan Limited Liability Company ("Developer") and
("North Property Owner"), hereby grant perpetual, reciprocal
easements of access according to the following terms:
Developer owns Lot 1, Block 1 of Outlets at Albertville Phase Three, Wright County,
Minnesota ("Outlet Property").
2. North Property Owner owns property described as
("North Property").
3. Developer shall permit ingress and egress to and from the North Property over the
Outlet Property at the locations shown on the attached Exhibit A ("Shared Private
Driveways").
4. North Property Owner shall permit ingress and egress to and from the Outlet Property
over the North Property at the Shared Private Driveways.
5. The benefited and burdened properties under this Agreement are the Outlet Property
and the North Property.
6. The cost of maintenance and repair of those portions of the Shared Private Driveways
which are located on the North Property shall be borne by the North Property Owner.
7. The cost of maintenance and repair of those portions of the Shared Private Driveways
which are located on the Outlet Property shall be borne by the Developer.
8. 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 Shared Private Driveways shall be erected, condoned or permitted by
the owner of any property benefited by the Shared 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
29
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.
9. Should an owner fail to repair or maintain that portion of said Shared Private
Driveway located on said owner's property, the other owner may undertake making or
causing any defective condition existing on said Shared Private 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, the other owner shall
give the defaulting owner fifteen (15) days notice via certified
mail and facsimile transmission thereof, and if the defaulting
owner 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), the other
owner will be granted the right and the privilege to complete
the defaulting owner's obligations and to bring legal action
against the defaulting owner 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, the other owner shall give the
defaulting owner twenty-four hours notice via telephone and
facsimile transmission thereof, and if the defaulting owner fails
to cure within said twenty-four hour period, the other owner
will be granted the right and the privilege to complete the
defaulting owner's obligations and to bring legal action against
the defaulting owner to collect any sums due for the cost of the
work performed, plus all costs and attorney's fees incurred in
enforcing this Agreement.
Dated:
[Signature Blocks]
[Notary Blocks]
["Drafted by" Statement}
30
EXHIBIT 10
ACCESS EASEMENT
Lakeview Outlets, LLC, a Michigan Limited Liability Company ("Developer") and
("South Property Owner"), hereby grant perpetual, reciprocal
easements of access according to the following terms:
Developer owns Lot 1, Block 1 of Outlets at Albertville Phase Three, Wright County,
Minnesota ("Outlet Property").
2. South Property Owner owns property described as
("South Property").
3. Developer shall permit ingress and egress to and from the South Property over the
Outlet Property at the location shown on the attached Exhibit A ("Shared Private
Driveway")
4. South Property Owner shall permit ingress and egress to and from the Outlet Property
over the South Property at the Shared Private Driveway.
5. The benefited and burdened properties under this Agreement are the Outlet Property
and the South Property.
6. 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 parking 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 Private Drive located on Said Plat.
7. 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 Shared Private Driveway shall be erected, condoned or permitted by the
owner of any property benefited by the Shared Private Driveway, its tenants, invitees
or licensees, nor shall any other conduct, passive or affirmative, including but not
31
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 Private Driveway to
utilize the Shared Private Driveway, nor shall any owner allow traffic to use said
Shared Private Driveway which has a weight rating which exceeds the weight rating
for which said Shared Private Driveway was designed and constructed.
8. Should an owner fail to repair or maintain that portion of said Shared Private
Driveway located on said owner's property, the other owner may undertake making or
causing any defective condition existing on said Shared Private 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, the other owner shall give the
defaulting owner fifteen (15) days notice via certified mail and
facsimile transmission thereof, and if the defaulting owner 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), the other owner will be granted the right and
the privilege to complete the defaulting owner's obligations and to
bring legal action against the defaulting owner 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, the other owner shall give the
defaulting owner twenty-four hours notice via telephone and
facsimile transmission thereof, and if the defaulting owner fails to
cure within said twenty-four hour period, the other owner will be
granted the right and the privilege to complete the defaulting
owner's obligations and to bring legal action against the defaulting
owner to collect any sums due for the cost of the work performed,
plus all costs and attorney's fees incurred in enforcing this
Agreement.
Dated:
32
[Signature Blocks]
[Notary Blocks]
["Drafted by" Statement}
33
EXIIIBIT 11
Sidewalk from Old Navy to Intersection
34
EXHIBIT 12
PERPETUAL TRAIL, UTILITY AND HIGHWAY EASEMENT
Lakeview Outlets, LLC, a Michigan Limited Liability Company, Grantor, for valuable
consideration, receipt of which is hereby acknowledged, does hereby convey and warrant to
the City of Albertville, Grantee, a perpetual easement for trail, utility and highway
purposes, together with the unrestricted right to improve the same, free and clear of all
encumbrances, over, across, under and through the following described property located in
the County of Wright in the State of Minnesota:
The west ten feet of Lot 1, Block 1, Outlets at Albertville Phase Three,
Wright County, Minnesota.
Dated:
STATE OF )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
200 by as Manager of
Outlets, LLC, a Michigan Limited Liability Company.
day of
Lakeview
Notary Public
This Document Drafted by:
Couri & MacArthur Law Office
P.O. Box 369
St. Michael, MN 55376
(763) 497-1930
35