1999-05-04 Recorded Development AgreementD
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RETURN TO: CHICAGO TITLE INSURANCE CO 677246
45 S SEVENTH ST #2200
MINNEAPOLIS MN 55402COtfItTYRFC4RDEF
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DEVELOPER'SIPLANNED UNIT DEVELOPMENT AGREEMENT
Outlets at Albertville
TMS AGREEMENT, entered into this day of dal 1999 by and between
ALBERTVILLE FACTORY OUTLETS, LLC, a Michigan Limited Liability Company.
(hereinafter `Developer') and the CITY OF ALBERTVILLE, a municipal corporation
organized under the laws of the State of Minnesota (hereinafter `City'), all of which are
collectively referred to herein as `the Parties';
WITNESSETH:
WHEREAS, Developer is the fee owner and developer of a parcel or parcels of land
described in Exhibit 1, attached hereto and incorporated herein by reference, a portion of
which parcels of land are proposed to be subdivided and platted for development, and which
subdivision plat, which is the subject of this Agreement, is intended to bear the name "Outlets
at Albertville" 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;
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WHEREAS, the City further requires that certain on- and off -site improvements be
installed by the Developer within the Subject Property, which improvements consist of
landscaping, grading, sanitary sewer, private drive, storm water ponding and storm sewer,
wetland mitigation, street signs, street cleanup during project development, erosion control,
and other site -related items; and
WHEREAS, this Agreement is entered into for the purpose of setting forth and
memorializing for the Parties and subsequent owners, the understandings and Agreements of
the parties concerning the development of the Subject Property, including the rights and
obligations of the respective parties;
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED,
in consideration of each party's promises and covenants herein set forth, as follows:
1. Construction of Municipal improvements.
Municipal Improvements shall consist of watermain and highway improvements as
described below:
A. Water Main. The Developer shall construct 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 October 31, 2000. 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 Section 14 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. Highway Improvements. The City shall construct highway improvements
consisting of turn lanes, acceleration lanes and median ("Highway
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Improvements"). All such required Highway Improvements shall be
constructed in accordance with Wright County Highway standards and shall be
constructed in accordance with the plans as shown on the attached Exhibit 3.
The City Engineer and/or County Engineer shall inspect all Highway
Improvements on a regular basis. Said improvements shall be installed no later
than February 1, 2000.
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 Inprovements 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 hereby waives its right of 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 N nnesota Statutes Chapter 429.
3. The City shall obtain a permit from the Wright County Highway
Department allowing construction of the Highway Improvements.
C. Future Installation of Signal Lights.
1. The City shall install traffic signals (red, green and yellow) at the
intersection of Wright County Highway No. 19 and the private drive
entrance to Said Plat at such time as the Wright County Highway
Department or the Wright County Board determines that traffic levels
warrant the installation of said traffic signals; provided said
determination is made within three years of the date of the opening of
the proposed outlet mall to the public for retail business. If said
determination is made within said three year period, the cost of said
traffic signal and its installation (including engineering fees, land
acquisition, construction costs and financing costs) shall be at
Developer's sole expense. Said traffic signal shall be of a type of
traffic signal and installed in the manner as prescribed by the Wright
County Highway Engineer and the City Engineer. Upon such time as
all costs related to the installation of said traffic signals are
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determinable, the City shall notify the Developer of the amount of said
costs via written notice. Developer shall either reimburse the City for
all expenses incurred in installing said traffic signals pursuant to this
paragraph 1. C.1. within 60 days of said written notification, or notify
the City within 30 days of said written notification that the Developer
elects to have said costs specially assessed against Lot 1, Block 1 of
Said Plat. Developer hereby waives any objection to the special
assessment of 100% of the cost of said traffic signals against Said Plat in
lieu of a direct billing of said costs to Developer. Developer hereby
waives its right to appeal said special assessment to the District Court
pursuant to Minnesota Statute 429.081. In the event the City specially
assesses 100% of the costs of said traffic signals to Lot 1, Block 1 of Said
Plata said assessments shall be payable over a period of years to be
determined by the City but not exceeding ten years, at an annual interest
rate not exceeding the rate of any bond issued to finance said traffic signals
plus 2%.
2. if traffic signals are not required to be installed pursuant to paragraph
1.C. L, provided the Wright County Highway Department or the Wright
County Board has determined that traffic levels warrant the installation
of said traffic signal within 10 years of the date the outlet mall opens
for business, the City may install said traffic signal after the expiration
of said three year period referred to in paragraph 1.C.1. and specially
assess Lot 1, Block 1 of Said Plat for 25% of the cost of said traffic
signal and its installation (including engineering fees, land acquisition,
construction costs and financing costs) or the amount as determined in
paragraph 1.C.3, below, whichever is less. Provided the special
assessment referred to above is levied within ten';years of the date the
outlet mall opens for business to the public, the Developer shall not
contest the special assessment and Developer waives its right to appeal
said special assessment pursuant to Minnesota Statute § 429.081.
3. The amount of said assessment shall be $123,000, adjusted for inflation
annually with the base year being the twelve month period immediately
prior to the date the outlet mall opened for business to the public.
Inflation adjustments shall be made at the end of each calendar year,
and the first adjustment shall be made at the end of the first calendar
year. The inflation adjustment rate shall be the Consumer Price Index
as reported by the United States Department of Commerce or its
successor agency for the year in question.
2. Construction of On- and Off -Site Improvements.
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A. Developer shall construct all on and off -site improvements as detailed in
attached Exhibits 4 and 5. Said on- and off -site improvements shall be installed
no later than October 31, 2000 with the exception of erosion control, which
shall be installed pursuant to Section 10 hereof. Developer shall also comply
with the landscaping plan attached hereto as Exhibit 6.
B. Developer shall, at its own expense, cause the following items to be installed
within the development, all such items to be installed under ground where
commercially practicable, accessible to all lots and in compliance with all
applicable state and local regulations:
i. Electrical power supply, to be provided by Northern States Power or
other such carrier;
ii. Natural gas supply, to be provided by Minnegasco or other such carrier;
iii. Telephone service, to be provided by United Telephone Company or
other such carrier;
C. Developer has submitted a utility plan (Sanitary Sewer and Watermain Plan)
for Said Plat showing all existing and proposed utility lines and easements.
Said utility plan is attached as Exhibit 2 hereto. Developer agrees to install all
utilities substantially according to this plan.
D. 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. Intended Use of Property.
It is the Developer's and City's intent that up to three buildings containing retail
"factory outlet" shops be constructed on Lot 1, Block 1 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. The City hereby establishes a Planned Unit Development (PUD) on Said Plat,
subject to the terms and conditions contained in this Agreement.
B. Developer shall construct only those buildings as shown on the attached
Exhibit 4 on said Lot 1, Block 1. Said buildings, including the building labeled
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"future" shall be constructed in substantially the same size, shape and location
as shown on the attached Exhibit 4. All buildings except the building labeled
"future" shall be constructed in substantial conformity to the Building
Elevations prepared by The Collaborative, Inc. of Toledo, Ohio, received by
the City on March 5, 1999 and on file with the City Clerk. Prior to
construction of that building labeled "future," Developer shall submit a site
plan to the City containing proposed traffic flow, landscaping detail and
building elevation detail. Said landscaping detail and building elevation detail
shall, where possible, be consistent with and similar to that shown on said
Building Elevations. Construction of said "future" building shall not begin
prior to approval of said site plan by the City.
C. The uses pemutted on Lot 1, Block 1 shall be those listed on the attached
Exhibit 7. Developer may petition the City to amend the potential uses listed
on Exhibit 7 at such time as Developer proposes a use not currently listed on
said Exhibit 7. The City shall hear said petition as an amendment to the PUD
and shall use the same standard as a rezoning to evaluate and consider said
petition.
D. Lot 1, Block 1 shall be landscaped in accordance with the attached landscape
plan attached and incorporated herein as Exhibit 6. All outlots shall be seeded
to prevent soil erosion, except areas previously delineated as wetlands, which
shall be addressed in accordance with that wetland plan approved by the
Wright County Soil and Water Conservation District on March 8, 1999.
E. The main entrance driveway connecting to Wright County Highway No. 19
shall remain a private driveway. Developer shall construct said driveway at
Developer's sole expense. Developer shall maintain said driveway in a
"reasonably commercial manner" such that the driveway is paved and plowed
at all times. The Developer shall pay all costs of all such maintenance.
F. Outlots B, C, D and E shall remain non -buildable until said outlots are replatted
into numbered lots and blocks, and shall be the subject of separate developer's
Agreements at the time of their development. Upon replatting into numbered
lots and blocks, Developer shall be allowed to use said outlots for the uses
described on Exhibit 8. Outlot A shall remain unbuildable indefuutely.
G. Developer agrees that it shall, upon platting of outlots B, C, and D into
numbered lots and blocks, provide to each re -platted lot an easement for ingress
and egress purposes over and across the private driveway, said easement to
allow for access in a reasonably commercial manner. Developer shall also
provide each re -platted lot with sufficient utility easements to allow for the
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reasonable installation of electric, gas, telephone, cable television, sanitary
sewer, municipal water and storm sewer utilities to each such re -platted lot. All
such easements shall be recorded on the property records of both the dominant
and subservient estates at the time of re -platting of each such outlot. The City
may refuse to approve final plats of said outlots until the Municipal
Improvements and on and off -site improvements required by this Agreement
have been satisfactorily completed.
H. Developer and City agree that this Agreement shallnot apply to outlot E upon
its conveyance to the City of Albertville, except that the following restrictions
shall continue to apply after said conveyance as follows:
Restrictions related to future drainage contained in paragraph 14B shall
apply to said outlot E until Developer and City explicitly release said outlot
from the restrictions of said paragraph 14B (via a written release) or until
the City acquires the right to modify the drainage through an eminent
domain action brought in District Court.
2. The provisions of paragraph 8.A.2. relating to wetland mitigation
construction shall apply to said outlot E until Developer and City explicitly
release said outlot from the restrictions of said paragraph 8.A.2. (via a
written release) or until five years after the date of the warranty deed
described in subparagraph 8.A. I of this Agreement, at which time the right
of Developer to construct wetlands upon outlot E shall expire.
I. 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 a 55 foot tall back -lit "Mall Center" pylon sign in the
location shown on the attached Exhibit 4. Said sign may be double faced,
but each face shall not exceed 375 square feet of sign area.
2. Developer may erect a 30 foot tall back -lit "Mall Entrance" pylon sign in
the location shown on the attached Exhibit 4. Said sign may be double
faced, but each face shall not exceed 228 square feet of sign. area.
3. Developer may attach single -faced, lighted individual business signs to the
buildings identified in paragraph 3.B. above. Said individual business signs
shall not exceed 4 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
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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.
4. Surety Re uirements. 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 approvatirpf the City attorney as
to form and issuing bank. Said cash or letter of credit shall be in the amount of
$1,189,564.00, representing the sum of 1001/o of the estimated cost of installing the
Municipal Improvements ($371,125.00), and the on- and off -site improvements
($818,439.00). Developer shall provide said surety to the City prior to the issuance of
any building permits for any structures on Said Plat.
5. Surety Release.
A. 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 5B below) for all Municipal
Improvements, on- and off -site items and traffic signals for which the
Developer provides the City both invoices from contractors detailing the
completed work and lien waivers in the dollar 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 5A, 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.
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6. Use of Surety.
A. In the event the Developer fails to cure a default after proper notice by the City
in accordance with paragraph 7 below, the City may draw on said letter of
credit to complete work not performed by Developer, to pay liens on property
to be dedicated to the City, to reimburse itself for costs and expenses incurred
by the City under this Agreement for which Developer is obligated to
reimburse the City, to reimburse itself for costs incurred in the enforcement of
this Agreement, to otherwise fulfill the obligations of Developer under this
Agreement, or as otherwise specified herein.
B. In the event that any cash, irrevocable letter of credit, or other surety referred to
herein is ever utilized and found to be deficient in amount to pay or reimburse
the City as required herein, the Developer agrees that upon being billed by the
City, Developer will pay within thirty (30) days of the mailing of said billing,
the said deficient amount. If there should be an overage in the amount of
utilized security, the City will, upon making said determination, refund to the
Developer any monies which the City has in its possession which are in excess
of the actual costs of the project as paid by the City.
C. In the event a surety referred to herein is in the form of an irrevocable letter of
credit, which by its terms may become null and void prior to the time at which
all monetary or other obligations of the Developer are paid or completed, it is
agreed that the Developer shall provide the City with a new letter of credit or
other surety, acceptable to the City, at least forty-five ,(45) days prior to the
expiration of the expiring letter of credit. If a new letter of credit is not
received as required above, the City may declare a default in the teams 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
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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 fi irther failed to diligently
prosecute said cure to completion.
B. Paragraph 7A shall not apply to any acts or rights of the City under paragraph
6C above, and no notice need be given to the Developer as a condition
precedent to the City declaring a default or drawing upon the expiring
irrevocable letter of credit as therein authorized. The City may elect to give
notice to Developer of the City's intent to draw upon the surety without waiving
the City's right to draw upon the surety at a future time without notice to the
Developer.
C. Breach of any of the terms of this Contract by the Developer shall be grounds
for denial of occupancy permits, provided the City has given notice of default
to Developer pursuant to this Agreement.
8. Payment of Fees.
A. Waiver of Fees.
1, Current Development. Developer acknowledges and agrees that it
normally would be required to pay park dedication fees, sewer trunk line
fees, water trunk line fees, sewer access charges, storm water access fees,
plan processing fees, and water access charges, Developer also
acknowledges and agrees that its development may require the City to
participate in the cost of installing traffic signal lights (red, yellow and
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green) at the intersection of Wright County Highways 19 and 37, and at the
�- intersection of Wright County Highway 37 and the west -bound exit ramp of
Interstate 94. Developer acknowledges and agrees that City policy typically
requires the Developer to pay the City's costs of installing said traffic signal
lights. In lieu of the payment of all of said fees and costs (except those
described below), Developer shall deed to the City of Albertville, via
warranty deed, property legally described as follows:
Outlot E, according to the plat to be recorded bearing the name
Outlets at Albertville, in the City of Albertville, Wright County,
Minnesota.
Developer shall deliver marketable title to said property to the City within
30 days of the date of execution of this Agreement, and said property shall
be free of all liens and encumbrances, including special assessments levied
as of the date of this document (including "contract charges" due the Joint
Powers Water Board upon the platting of the Subject Property). Within 10
days after the execution of this Agreement, Developer shall provide the City
with a title commitment from Chicago Title Insurance Company in an
amount not less than $300,000. Real estate taxes due and payable in the
year of the property transfer shall be prorated between Developer and the
City to the date of closing. Developer shall pay all back taxes and all taxes
resulting from the removal of the property from "green acres" tax
classification.
2. Future Wetlands Mitigation. The City agrees that Developer shall have
the right, at any time within the first five years after the date of the
Warranty Deed mentioned in subparagraph 8.A.1. above, to create up to
three acres of wetlands mitigation upon Outlot E, at Developer's expense
and at a location or locations designated by the City Engineer. Said right
shall be exercised by Developer only if the Wright County Soil and Water
Conservation District determines that additional wetland mitigation areas
need to be created as a result of certain monitoring activities that may be
conducted as a requirement of Developer's construction activities following
construction of the improvements to be completed by Developer on Lot 1,
Block 1 of Said Plat.
B. Building Inspection Fees. Developer shall pay to the City building permit fees
due as a result of said development, but only to the extent that said fees must be
forwarded to the State of Minnesota or to the City's Building Inspector as
independent contractor fees. The City shall waive that portion of the building
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permit fee which it would normally keep.
C. SAC Charges. Developer acknowledges that the above -described waiver of fees
shall act to waive any Sewer Access Charges based upon the water usage up to an
average daily usage of 19,200 gallons of all users on Said Plat (including outlots B,
C, and D which may subsequently be replatted). At such time as the average daily
water usage for a given year exceeds 19,200 gallons, Developer shall pay the
Sewer Access Charges then in effect calculated upon the difference between said
average daily water usage and 19,200 gallons. Sewer Access Charges shall be paid
on any building or addition to existing building constructed after said average daily
water usage exceeds 19,200 gallons, said charges to be in an amount as specified in
the then -existing Sewer Access Charge ordinance.
D. Water Fees.
1. Current Development. Developer acknowledges that prior to January 1,
1999, the Joint Powers Water Board required payment of a hook -on fee of
$ t07,900.00 in order for Developer to receive water service. OnSeptember
28, 1998, the Joint Powers Water Board, at Developer's, request, agreed to
extend the payment of hook -on fees over a 10 year period via special
assessments accruing 6.5% annual interest, with equal principal payments
due annually over the course of said 10 year period. Developer
acknowledges that the Joint Powers Water Board and the City have, as of
January 1, 1999, modified the duties and responsibilities of each entity as to
water concerns, and that the City will now be the entity responsible for
maintaining water lines and collecting water hook -on fees. Accordingly,
Developer agrees and understands that the City will specially assess
Developer in the amount of $107,900.00 accruing interest at 6.5% and
payable over a 10-year period in equal principal payments (plus interest
annually) in lieu of Developer paying $107,900.00 to Joint Powers Water
Board prior to connection to municipal water service. Developer hereby
waives any objection to the special assessment of $107,900.00 against Said
Plat in lieu of a water connection charge. Developer hereby waives its right
to appeal said special assessment to the District Court pursuant to
Minnesota Statute 429.081. Developer further acknowledges that under the
City/joint Powers Board Agreement, the City will receive and retain
approximately $33,200.00 of said $107,900.00 special assessment as
payment, in part, for the City assuming responsibility for significant
portions of the municipal water distribution system from Joint Powers.
Developer shall also make arrangements directly with the Joint Powers
Board for the payment of the Joint Powers Board's "contract charges" due
as a result of Said Plat being removed from agricultural use designation.
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2. Future Development. Developer acknowledges that the above -described
$107,900.00 municipal water hook -on fee to be paid by Developer satisfies
the required hook -on fee only for the two buildings to be constructed with
the initial development of Lot 1, Block 1, and does not satisfy hook -on fees
that may be due in the future prior to the issuance of a building permit for
that building described as the "future" building in paragraph 3.B., nor does
it satisfy hook -on fees required with the development of any of the outlots
on Said Plat.
9. Abandonment of Project - Costs and Expenses. In the event Developer should
abandon the proposed development of the Subject Property, the City's costs and
expenses related to attorneys 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.
10. Erosion and Siltation Control. Before any grading is started on any site, all erosion
control measures as shown on the approved erosion control plan attached hereto as
Exhibit 5 shall be installed, and Developer agrees to comply with additional erosion
control measures recommended by the City Engineer should the erosion control plan
prove inadequate.
11. Maintain Public Property — Costs and Expense 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 fiuther 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
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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 may be withdrawn by the City from the surety
described above and/or assessed against any or all of Said Plat.
12. Temporary Access Rights. Developer shall provide access to Elie Subject Property at
all reasonable times to the City or its representatives for purposes of inspection or to
accomplish any necessary work pursuant to this Agreement. The City will use
reasonable efforts to coordinate such inspections with Developer's general contractor.
13. Miscellaneous.
A. If any portion, section, subsection, sentence, clause, paragraph or phrase of this
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.
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 Aich have been
completely firlfilled and require no further action by Developer, but all portions
of this Agreement governing the use of the land shall remain in effect.
14
67"7Yy=j1;
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. Developer shall comply with all water, ponding and wetland related restrictions
required by the Wright County Soil and Water Conservation District as a
condition of its March 8, 1999 approval of Developer's wetland replacement
plan.
G. Prior to the execution of this Agreement and prior to the start of any
construction on the Subject Property, Developer shall provide the City with
evidence of good and marketable title to all of Subject Property. Evidence of
good and marketable title shall consist of a Title Insurance Policy or
Commitment from Chicago Title Insurance Company, or an abstract of title
updated by an abstract company registered under the laws of the State of
Minnesota.
14. Dedications to the Gly.
A. The Developer, upon presentation to the City of evidence of good and
marketable title to Subject Property, and upon completion of all construction
work and upon the issuance of a certification of completion by the City
Engineer, shall dedicate the water main (as shown on Exhibit 2) to the City,
along with a 20-foot permanent easement for the watermain, said easement
centered upon said watermain. To the extent allowed by the Minnesota
Department of Health, Developer may locate sanitary sewer lines in a portion
of said permanent easement, provided said sanitary sewer lines do not interfere
with or otherwise hinder the City's ability to access, service or use said
15
G772V196
watermain.
B. The Developer shall dedicate to the City drainage easements over all ponds,
wetlands and ditches. Said easements shall be in the form and shall cover the
items as specified on the attached Exhibit 9. Prior to dedication, Developer
shall provide to the City "As-Builts" of all sanitary sewer mains, storm sewer
mains, storm water ponds, private drive, and water mains. Acceptance by City
of any dedication shall occur upon passage of a resolution to such effect by the
City Council.
C. The City hereby deems the Developer's park dedication requirements have
been satisfied with the obligations undertaken by Developer in this Agreement.
D. The Developer shall reserve an easement for future dedication for a pedestrian
trail ten feet in width along the easterly property line of Lot 1, Block 1 at the
western right-of-way line of Wright County Highway 19 along the entire length
of Lot 1, Block 1 of Said Plat, and along the easterly property line of Outlot A
at the western right-of-way line of Wright County Highway 19 along the entire
length of Outlot A. Developer shall dedicate said easement to the City free of
charge at such time as the City designs said trail.
E. The Developer shall reserve for future dedication to the City, Wright County,
and/or State of Minnesota, sufficient land for the construction of a west -bound
exit ramp from Interstate 94 to Wright County Highway No. 19. In the event
said west -bound exit ramp is to be constructed, Developer shall dedicate to the
City, Wright County and/or State of Minnesota, free of charge, sufficient right-
of-way to construct said exit ramp and a corresponding entrance ramp from
Wright County Highway No. 19 to the Interstate 94 west -bound lane, provided,
however, that Developer shall have no obligation to dedicate right-of-way from
any lot other than Outlot A of Said Plat.
F. Upon performance by Developer as required under this paragraph 14, the City
shall take all reasonable steps necessary to accept the dedications by Developer
to the City which are required pursuant to this Agreement.
15. Indemnily. 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
16
6 77�c�
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.
16. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are
incorporated into this Agreement by reference as they appear. Unless otherwise
specified in this Agreement, Developer is bound by said plans and responsible for
implementation of said plans as herein incorporated.
17. Integration Clause, Modification by Written Agreement Ony_This Agreement
represents the full and complete understanding of the Parties and neither Party is
relying on any prior Agreement or statement(s), whether oral or written. Modification
of this Agreement may occur only if in writing and signed by a duly authorized agent
of both Parties.
18. Professional Fees. The Developer will pay all reasonable professional fees incurred
by the City as a result of City efforts to enforce the terms of this Agreement. Said fees
include attorney's fees, engineer's fees, planner's fees, and any other professional fees
incurred by the City in attempting to enforce the terms of this Agreement, The
Developer will also pay all reasonable attorney's and professional fees incurred by the
City in the event an action is brought upon a bond or letter of credit furnished by the
Developer as provided herein. In the event the Developer disputes the City's fees
incurred under this paragraph, the Parties agree to submit said dispute to binding
arbitration by the American Arbitration Association.
19. Notification Information. Any notices given to the Parties as herein required shall be
in writing, delivered by hand (to the City Clerk for the City) or registered mail
addressed as follows to the following Parties:
City of Albertville
c/o City Clerk
P.O. sox 9
Albertville, MN 55301
Telephone: (612) 497-3384
17
677�', o"
Albertville Factory Outlets, LLC
c/o JMJ Properties, Inc.
107 Sinclair Drive
Muskegon, Michigan 49441
Telephone: (616) 798-4670
Facsimile: (616) 798-4611
With a copy to :
Michael Knowlton
Culver, Sheridan, Knowlton, Even & Franks
250 Terrace Plaza
P.O. Box 629
Muskegon, Michigan 49443
Telephone: (616) 724-4320
Fax: (616) 724-4330
20. Assignment of Agreement. The obligations of the Developer under this Agreement
cannot be assigned without the express written consent of the City Council through
Council resolution.
21. Time of the Essence. Time is of the essence in regard to the undertakings of the
Parties in this Agreement.
22. Agreement Effect. This Agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the Parties hereto.
CITY OF ALBERTVILLE,
18
6772il0'
DEVELOPER,
ALBERTVILLE FACTORY
OUTLETS, LLC.
flyJames A. Morse, J .
Its Manager
STATE OF MQNNESOTA )
) ss.
COUNTY OF WRIGHT )
Th foregoing instrument was acknowledged before me this ��h day of
" , 1999, by �4n Ofs 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.
��,' •, MICHAEL C. COURI
NOTARY PUBLIC-MINNESOTA
o HENNEPIN COUNTY
" �•� My Commisslon Expires Jan. 31, 2000
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
_C'A �-_ c'...
Notary Public
e foregoing instrument was acknowledged before me this ;�e day of
1999, by Linda Goeb, as Clerk of the City of Albertville, a Minnesota
municipal corporation, on behalf of the city and pursuant to the authority of the City Council.
_ Notary Public
• MICHAEL C. COLiRI"
r,. NOTARY PUBLIC MINNESOTA
HENNEPIN COUNTY
W mmisslon Expires Jan.31, 2000
r-
19
677`'`0418
STATE OFn�aF
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this �3 day of
1999, by James A. Morse, Jr. as Manager of Albertville Factory
Outlets, LLC, a Michigan Limited Liability Company.
This Agreement drafted by:
Court & MacArthur Law Office
P.O. Box 369
St. Michael, MN 55376
Notary Public
20
s
BARBARA E.LANEY
NOTARY PUBLIC MINNESOTA
W Commission Expi�ss Jan. 31.20M
W9
677` 18
�. 0W
LEGAL DESCRIPTION FOR NIINNEAPOLIS OUTLET CENTER
The Legal description for the Minneapolis Outlet Center, after the recording of the
Minneapolis Outlet Center Plat is as follows:
Lot 1,- Block
Outlot A
Outlot B
Outlot C
Outlot D
Outlot E
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EXHIBIT 7
PERMUTTED USES FOR LOT 19 BLOCK 1
M 4NEAPOLIS OUTLET CENTER
The following uses shall be allowed on Lot 1, Block 1 of the Minneapolis Outlet
Center 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.
g. 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.
29. Record -music shops.
29. Restaurants and on and off -sale liquor.
0. Sewing machine sales and service.
31. Shoe stores.
32. Sports and exercise equipment sales.
33. Wearing apparel and clothing stores.
No overnight storage or display shall be allowed outside any building for any
of the uses listed on this exhibit.
6772j16
EXHIBIT S
pERNUTTED USES FOR OUTLOTS B, C AND D
NUNNFAPOLIS OUTLET CENTER
The following uses shall be allowed on outlots B, C andD of
and bMinneapolis Outlet
Center Plat upon replatting of said outlots into numbered
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.
29. 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.
34. Convenience store with gasoline sales.
1 of 2
6771�
35. Motels, motor hotels and hotels, provided that the lot area contains not less than
five hundred (500) square feet of lot area per unit.
36. Drive-in, convenience or drive -through type restaurants.
No overnight storage or display shall be allowed outside any building for any of the
uses listed on this exhibit.
2of2
677;M8
DRAINAGE EASEMENT
Albertville Factory Outlets, LLC, Grantor, hereby dedicates to the City of
Albertville a permanent easement for drainage and drainage utility purposes over, under,
across and under the land described below. Said easement shall be limited by the
following parameters:
All drainage passing through said easement area shall be restricted to the rate
of water runoff as of the date of this Agreement from properties currently
draining through said easement area.
2. The City shall be permitted to improve said drainage easement area provided
said drainage improvements do not materially affect the capacity or the
functioning of the then -existing drainage system on Grantor's property.
The legal description of said drainage easement is as follows:
Said drainage and utility easement being 15.00 feet to the right of the
following described line, hereinafter referred to as LINE A:
Commencing at the southeast corner of Lot 1, Block 1, OUTLETS AT
ALBERTVILLE, according to the plat thereof on file and of record in the
office of the County Recorder, Wright County, Minnesota; thence North 01
degrees 02 minutes 33 seconds East along the east line of said Lot 1, a
distance of 29.34 feet to the point of beginning of the line to be described;
thence North 89 degrees 10 minutes 12 seconds West, a distance of 159.90
feet to a point hereinafter referred to as POINT A; thence continue North 89
degrees 10 minutes 12 seconds West, a distance of 97.83 feet to a point
hereinafter referred to as POINT B; thence continue North 89 degrees 10
minutes 12 seconds West, a distance of 275.41 feet; thence North 70
degrees 37 minutes 02 seconds West, a distance of 109.37 feet; thence
North 36 degrees 49 minutes 11 seconds West, a distance of 98.17 feet to a
67724I8
point hereinafter referred to as POINT C; thence continue North 36 degrees
49 minutes i i seconds West, a distance of 164.69 feet; thence North 00
degrees 39 minutes 04 seconds West, a distance of 45.00 feet to a point
hereinafter referred to as POINT D and there terminating said LINE A.
Together with a drainage and utility easement over, under and across the
first above described property lying southerly, southwesterly and westerly
of the above described LINE A, lying northerly and northeasterly of the
south line of said Lot 1 and lying southerly and easterly of the following
described line:
Beginning at the above described POINT D; thence South 89 degrees 20
minutes 56 seconds West, a distance of 33.00 feet; thence South 00 degrees
3 9 minutes 04 seconds East to the south line of said Lot 1 and there
terminating.
Together with a 30.00 foot drainage and utility easement over, under and
across the first above described property. The center line of said easement
is described as follows:
Beginning at the above described POINT D; thence North 00 degrees 39
minutes 04 seconds West, a distance of 307.25 feet to a point hereinafter
referred to as POINT E; thence North 47 degrees 54 minutes 19 seconds
West, a distance of 43.23 feet to a point hereinafter referred to as POINT F;
thence continue North 47 degrees 54 minutes 19 seconds West, a distance
of 142.44 feet to a point hereinafter referred to as POINT G; thence
continue North 47 degrees 54 minutes 19 seconds West, a distance of 94.43
feet to a point hereinafter referred to as POINT H; thence continue North 47
degrees 54 minutes 19 seconds West, a distance of 122.77 feet to a point
hereinafter referred to as POINT I; thence North 89 degrees 20 minutes 56
seconds West, a distance of 198.03 feet to a point hereinafter referred to as
POINT J; thence continue North 89 degrees 20 minutes 56 seconds West, a
distance of 160.59 feet to a point hereinafter referred to as POINT K;
thence continue North 89 degrees 20 minutes 56 seconds West, a distance
of 162.86 feet to a point hereinafter referred to as POINT L; thence
continue North 89 degrees 20 minutes 56 seconds West, a distance of
189.40 feet to a point hereinafter referred to as POINT M; thence South 49
degrees 10 minutes 47 seconds West, a distance of 125.95 feet to a point
hereinafter referred to as POINT N; thence continue South 49 degrees 10
minutes 47 seconds West, a distance of 100.20 feet to a point hereinafter
referred to as POINT O; thence continue South 49 degrees 10 minutes 47
seconds West, a distance of 137.46 feet to a point hereinafter referred to as
Pa
6772f ill 8
POINT P; thence continue South 49 degrees 10 minutes 47 seconds West, a
distance of 41.37 feet to a point hereinafter referred to as POINT Q and
there terminating.
Together with 20.00 foot drainage and utility easements over, under and
across the first above described property. The center line of said easements
are described as follows:
'Beginning at the above described POINT A; thence North 00 degrees 49
minutes 48 seconds East; a distance of 55.00 feet and there terminating.
Beginning at the above described POINT B; thence North 00 degrees 49
minutes 48 seconds East, a distance of 55.00 feet and there terminating.
Beginning at the above described POINT C; thence North 53 degrees 10
minutes 49 seconds East, a distance of 56.63 feet and there terminating.
Beginning at the above described POINT E; thence North 89 degrees 39
minutes 04 seconds East, a distance of 30.00 feet and there terminating.
Beginning at the above described POINT F; thence North 42 degrees 05
minutes 41 seconds East, a distance of 30.00 feet and there terminating.
Beginning at the above described POINT G; thence North 42 degrees 05
minutes 41 seconds East, a distance of 173.50 feet and there terminating.
Beginning at the above described POINT H; thence North 42 degrees 05
minutes 41 seconds East, a distance of 60.94 feet and there terminating.
Beginning at the above described POINT I; thence North 00 degrees 20
minutes 56 seconds West, a distance of 30.00 feet and there terminating.
Beginning at the above described POINT J; thence South 00 degrees 39
minutes 04 seconds West, a distance of 30.00 feet and there terminating.
Beginning at the above described POINT L; thence South 00 degrees 39
minutes 04 seconds West, a distance of 3 0. 00 feet and there terminating.
Beginning at the above described POINT M; thence North 00 degrees 39
minutes 04 seconds East, a distance of 30.00 feet and there terminating.
3
677218
Beginning at the above described POINT N; thence North 40 degrees 49
minutes 13 seconds West, a distance of 66.27 feet and there terminating.
Beginning at the above described POINT O; thence North 40 degrees 49
minutes 13 seconds West, a distance of 177.97 feet and there terminating.
Beginning at the above described POINT P; thence North 40 degrees 49
minutes 13 seconds West, a distance of 33.95 feet and there terminating.
Beginning at the above described POINT Q; thence North 89 degrees 56
minutes 53 seconds West, a distance of 35.00 feet and there terminating.
Beginning at the above described POINT Q; thence South 00 degrees 39
minutes 04 seconds West, a distance of 317.13 feet; thence South 89
degrees 20 minutes 56 seconds East, a distance of 30.00 feet and there
terminating.
Together with a 28.00 foot drainage and utility easement over, under and
across the first above described property. The center line of said easement
is described as follows:
Beginning at the above described POINT K; thence South 00 degrees 35
minutes 34 seconds West, a distance of 646.52 feet to the south line of said
Lot 1 and there terminating.
Together with a 58.00 foot drainage and utility easement over, under and
across the first above described property. Said easement being 14.00 feet to
the right and 44.00 feet to the left of the following described line to be
hereinafter referred to as LINE B:
Beginning at the above described POINT K; thence North 00 degrees 35
minutes 34 seconds East, a distance of 166.85 feet and said LINE B there
terminating.
Together with a 70.00 foot drainage and utility easement over, under and
across the first above described property. Said easement being 14.00 feet to
the right and 56.00 feet to the left of the following described line:
Beginning at the terminus of said LINE B; thence North 00 degrees 35
minutes 34 seconds East, a distance of 38.00 feet to the north line of said
Lot 1 and there terminating.
4
G77`?4'G
Dated:
ALBERTVILLE FACTORY OUTLETS, LLC
By: James A. Morse, Jr.
Its: Manager
STATE OF
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
1999, by James A. Morse, Jr., manager of Albertville Factory
Outlets, LLC, Grantor.
DRAFTED BY:
Couri & MacArthur Law
Office
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(612)497-1934
Notary Public
5
24 116