Loading...
Item 3.15 GCC of America401 TY OF Ot�eLro MINNESOTA. < 7 DEPARTMENT INFORMATION Request for City Council Action IRA Planning City Planner Licht 14 December 2020 r r Consent City Administrator/Finance Director Flaherty 3.15 — GCC of America City Engineer Wagner City Attorney Kendall STRATEGIC VISION /, Is a strong organization that is committed to leading the community through innovative communication. Has proactively expanded infrastructure to responsibly provide core services. Is committed to delivery of quality emergency service responsive to community needs and expectations in a cost-effective manner. X Is a social community with diverse housing, service options, and employment opportunities. Is a distinctive, connected community known for its beauty and natural surroundings. AGENDA ITEM DETAILS City staff recommends approval of a Site Improvement Performance Agreement for Lot 1, Block 1, Otsego Industrial Park 6th Addition. E` � SEE(C ��AP O� /O A C0�(T ACT ' � � � PC(BL C F(EA NCB' E UI ED / // ,, ✓ �'ir� / r �/ r rrr%/�� //i � r,�ri // //pia �,/'� Yes No / ,//,,,,i/, , ,/ r, , i D r G s C ;0 /, r / B �iJ T //, /r//�.�i/�//!%/i�/��/i/ii��,//, � //� , // err „ „,// /r , /� ,i/��>�a///,,��,�% �/✓i r/i/ ,/r � ,, r1J�1 „A7�� rN,u,�ii,� �r/rrr/r/,,1��%/�r/��/r���i/,/�%r�//��//�,/,�� The City Council approved applications submitted by GCC of America (d/b/a GCC Dacotah, Inc.) for site/building plan review and a conditional use permit for structure height for Lot 1, Block 1, Otsego Industrial Park Addition 6th Addition at their meeting on 14 September 2020. Section 11-9-7 of the Zoning Ordinance requires that the developer execute a Site Improvement Performance Agreement (SIPA) with the City to provide for construction of the project, completion of all public improvements, establishment of required securities, and payment of applicable fees. The City Attorney has drafted a SIPA related to the proposed development, which is to be adopted by resolution of the City Council and executed by the developer and recorded with the property. �/i, of , / //, ,,/✓/// /, / , / / „ // , /, /i f o o ,)y► ■ Resolution 2020-84 approving a SIPA ■ SIPA POSSIBLE MOTION Motion to adopt Resolution 2020-84 approving a Site Improvement Performance Agreement for Lot 1, Block 1, Otsego Industrial Park 6 th Addition. BUDGET INFORMATION j�gg,%Mf?/ �WRWW, aw/ NA CITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO: 2020-84 APPROVING A SITE IMPROVEMENT PERFORMANCE AGREEMENT FOR GCC DACOTAH, INC. WHEREAS, GCC Dacotah, Inc. (the "developer") is proposing development of Lot 1, Block 1, Otsego Industrial Park Sixth Addition; and WHEREAS, site and building plans and a conditional use permit the development was approved on 14 September 2020 by the City Council; and WHEREAS, Section 11-9-7 of the Zoning Ordinance requires the developer to enter into a Site Improvement Performance Agreement to provide the City construction and warranty securities for the public and private improvements and to provide the City various remedies in the event that the developer breaches the terms and conditions of said agreement; and WHEREAS, those obligations are outlined and memorialized in the attached Site Improvement Performance Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OTSEGO, MINNESOTA THAT: 1. The Site Improvement Performance Agreement attached hereto between the City of Otsego and GCC Dacotah, Inc. is hereby approved in form subject to modification of fees, charges, and securities as approved by City staff. 2. The Mayor and Deputy City Clerk are hereby authorized to execute the Development Agreement on behalf of the City of Otsego. ADOPTED bvthe Otsego City Council this 14mday ofDecember, 2UZU. MOTION BY: SECONDED BY: IN FAVOR: OPPOSED: CITY OF OTSEGO Jessica L. Stockamp, Mayor ATTEST: Bethany Benting, Deputy City Clerk (reserved for recording information) SITE IMPROVEMENT PERFORMANCE AGREEMENT (GCC DA COTAH, INC.) THIS SITE IMPROVEMENT PERFORMANCE AGREEMENT ("Agreement") dated , 2020, by and between the CITY OF OTSEGO, a Minnesota municipal corporation ("City") and GCC DACOTAH, INC., a South Dakota corporation (the "Developer") 1. BACKGROUND. A. The Developer has submitted to the City a site plan application and conditional use permit on property in the City of Otsego, Minnesota, legally described as Lot 1, Block 1, Otsego Industrial Park 6th Addition, Wright County, Minnesota according to the recorded plat thereof (hereinafter referred to as the "Subject Property") B. The development of the above described Subject Property includes the construction of a 2,184 square foot, two story office building, a 20,000 square foot storage building, and storage silos, with proposed use as a storage and transfer site involving the transport, loading, unloading, transloading, storage and transfer of building materials and other personal property useful for the operation of the plant, including without limitation, cement, sand, fly ash, from a rail spur to be constructed off of the abutting BNSF rail line, and transport of materials off- site by truck. Access to the property will be maintained at the permanent cul- 1 GCC Dacotah, Inc. 210642v6 de -sac be00inUS of Jansen /\VeDUe NE within Lot 1, Block 1. Otsego Industrial P@[h Oth Addition ("Improvements"). C. The Developer shall install and complete the Improvements bvJune 3O.2O22. FOFpU[pOSG Ofthis agreement, the Improvements are the site improvements required by the Agreement, specifically the enDSiOO CoOtnO|. StVrDl sewer facilities, grading, VVet|8Dd bUffe[SigO8ge. any streets within the Plat, the cul- de-sac at the tH[O0inUS of Jansen /\veOUe. street light iDSt8||@tioD. |8DdSC8piOg and SiO0i|G[ iOlpPOVe[DeDtS; provided, however, that the Developer and the City acknowledge that the construction Of82.184square foot, two story office building, @ 20.000 square foot storage building, and storage GiliS, @Gfurther detailed in the first GeOt8OCe Of Section 1(B) is expressly excluded from the definition Of |[DpFOVeOleDtS under this Agreement. D. The Developer may phase construction Ofthe office building and warehouse building shown 0Othe approved site plan. Erection Ofthe silo structures, which are defined @Gaccessory structures bvthe Zoning OndiO8ODe. UpOO the 8UbieC[ Property Sh8U OCcU[ concurrently with either the OffiQB building or warehouse pursuant tOSection 11-1O-2.AOfthe Zoning Ordinance. Completion Vfany 5t[UCtiODupon the Subject property shall be in compliance with Section 9-1-2 of the City Code. 2. CONDITIONS OF APPROVAL. This Agreement is a condition of City site plan approval and will berecorded against the Subject Property. 3. PLANS. The Subject Property shall be developed in accordance with the following plans which are oOfile with the City. The plans shall not bHattached t0this Agreement. If the plans vary from the written terms of this Agreement, the written terms shall control. The plans are: Plan — Site Plan P|8D B — Final Grading, Drainage and Erosion Control P|@O Plan — Utility Plan Plan — Landscape Plan F»|@D E — New Building Floor Plan P|gO F — New Building BeV3tiODG Plan � GCCDuonuah^Inc. Plan G—Lighting Photometric Plan Plan H — Traffic Control Plan No work can occur outside of the areas indicated on the plans without modifying this Agreement O[obtaining aseparate grading permit. 4. EROSION CONTROL. Prior to initiating site g[oding. the erosion control plan, Plan B. shall beimplemented bvthe Developer and inspected and approved bythe City, which shall not be unreasonably denied, withheld, or delayed. The City may impose reasonable additional erosion control requirements ifthe existing erosion CDOt[0l p|8O is not effective. All 8Fe@G disturbed by the grading Op8F@tiODS Shg|| be stabilized per the W1PCA Gto[DlVV8te[ Permit for Construction Activity. Seed Sh8|| be in @ccoPd@OCH with the City'8 current seeding specification which may include temporary seed t0 provide ground cover as rapidly as possible. All seeded 8Fe88 shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in COOtnU||iOg enDSi0O. If the [)eVe|0p8[ does not comply with the W1PCA 8tVrDlVV8t8[ Permit for {}ODSt[uCtiOD Activity or with the e[OGiVD COnt[V| p|@O and schedule or SUpp|eDleOtG[V instructions received from the City. the City, after G4O hOUnG' written notice to the [)eVe|ope[. may take such G(ti0O as it deems appropriate to :oOtPD| e[VSiOO. If the Developer does not reiDlbUnSH the City for any reasonable cost the City incurred for such work within ten (10) days, the City may draw down the letter of credit or the C8Sh eG:nDVV' as the CGs8 may be, to pay any costs. NO development, utility or street C0O8truCtiOD will be 8||OVved and DO building permits will be issued UD|eGG the plat is in fU|| CODOp|i8Oce with the approved erosion control plan. The [}eVe|Op8r is responsible for obtaining an MPCA C0OSt[UCtiOD Permit for the site as well as developing a SWPPP for the site priorbJisSUaDCBOfGbUi|diDgp8[DliL The permit requires that all erosion and sediment 0K8PG beclearly outlined in @ GVVPPP. Changes made throughout construction DlUSt be documented in the S\80PPP. All basin S|Op8S and G|Op8S adjacent b}wetlands must have 8nOSioO CODtFU| blanket installed. Additional erosion control measures may berequired during construction @8deemed necessary by City staff. Any additional DlegGUFeG required Sh8|| be installed and maintained by the Developer. 3 8CCDucomhInc. 5. LICENSE. Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the Subject Property to perform all work and inspections deemed appropriate by the City in conjunction with site development. 6. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public utility construction, and public street construction is restricted to access the subdivision as approved by the City Engineer. 7. STORM SEWER. The Developer shall construct private storm sewer to convey the stormwater runoff from the proposed improvements to the stormwater management basin. The Developer shall install a privately owned and maintained 24 inch culvert from the south side of Jansen Avenue NE to the wetland area southwest of the subject site. Prior to the issuance of a building permit, the Developer shall enter into a private maintenance agreement for the private storm sewer and stormwater management system. The Developer shall pay a cash fee in the amount of $61,713.60 for the Storm Water Impact Fee which is calculated as follows: 15.3 Net Acres X $3,588.00 = $54,896.40 Final locations and sizes of all storm sewer facilities will be reviewed by City staff with the building permit plans. 8. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The Developer shall pay a fee for consulting engineering administration following approval of the Plat. City engineering administration will include consultation with Developer and its engineer on status or problems regarding the project, monitoring during the warranty period, general administration and processing of requests for reduction in security. Fees for this service shall be the actual amount billed for those services, which are estimated to be no more than three percent (3%) of the estimated construction cost of the Improvements to be inspected, assuming normal construction and project scheduling. The Developer shall pay for construction observation performed by the City Engineer. Construction observation shall include part or full time observation, as reasonably determined by the City Engineer, of proposed street, sanitary sewer, 4 GCC Dacotah, Inc. 210642v6 water and storm drainage construction and will be billed on hourly rates estimated to be six and one half (6.5) percent of the estimated construction cost The escrow amount shall be submitted to the City prior to the City executing this Agreement. All administrative and legal fees related to plan review, drafting of this Agreement and any other necessary items shall be paid to the City prior to execution of this Agreement, which are in the aggregate amount of $ Any amounts for legal and engineering not utilized from this escrow fund shall be returned to the Developer when all improvements have been completed, all financial obligations to the City satisfied, and the required "as constructed" plans have been received by the City. All other amounts listed as flat fees are non-refundable and available immediately for City use when posted. 9. DRAINAGE AND GRADING. The proposed rail spur includes installation of rail track for rail car storage that will require filling of wetlands in the southern portion of the subject site. All grading, drainage, erosion control, and wetland impacts are subject to review and approval of the City Engineer, which shall not be unreasonably denied, withheld, or delayed. The plat shall be graded in accordance with the approved grading development and erosion control plan, Plan "B". The plan shall conform to City of Otsego specifications. Within thirty (30) days after completion of the grading and final establishment of ground cover or temporary stabilization reasonably approved by the City, which shall not be unreasonably denied, withheld, or delayed, the Developer shall provide the City with an "as constructed" grading plan certified by a registered land surveyor or engineer that all storm water treatment/infiltration basins and swales, have been constructed on public easements or land owned by the City. The "as constructed" plan shall include field verified elevations of the following: a) cross sections of storm water treatment/infiltration basins; b) location and elevations along all swales, wetlands, wetland mitigation areas if any, locations and dimensions of borrow areas/stockpiles, and installed "conservation area" posts; and c) lot corner elevations and building pads. The City will withhold issuance of a Certificate of Occupancy until the approved certified grading plan is on file with the City and all erosion control 5 GCC Dacotah, Inc. 210642v6 measures are in place as reasonably determined by the City Engineer.. The soils observation and testing report, including referenced development phases and lot descriptions, shall be submitted to the Building Official for review prior to the issuance of the Certificate of Occupancy. Prior to the release of the grading and erosion control security, the "as constructed" plan for the lot must be submitted to verify that the final as -built grades and elevations of the specific lot are consistent with the approved grading plan for the development, and amendments thereto as reasonably approved by the City Engineer, which shall not be unreasonably denied, withheld, or delayed, and that all required property monuments are in place. If the final grading, erosion control and "as constructed" grading plan is not timely completed, after fifteen (15) days' written notice to Developer, the City may enter the lot, perform the work, and draw on the letter of credit or the cash escrow, as the case may be. Upon satisfactory completion of the grading, erosion control and "as constructed" grading plan, the security, less any draw made by the City, shall be released. A certified as -built building pad survey must be submitted and approved for commercial, industrial or institutional developments prior to issuance of a building permit. The site plan improvements contain more than one (1) acre of site disturbance. Therefore, a National Pollution Discharge Elimination System General Stormwater Permit for construction activity is required from the Minnesota Pollution Control Agency. A copy of the Notice of Stormwater Permit Coverage must be submitted to the City upon receipt from the MPCA. H. Retaining walls over four feet in height shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the Building Official evidencing that the retaining wall was constructed in accordance with the approved plans and specifications. All retaining walls identified on the development plans and by special conditions referred to in this Agreement shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. All retaining walls must comply with the City's engineering manual and the City's zoning ordinance. GCC Dacotah, Inc. 210642v6 10. WETLANDS. The wetland delineation conducted by Wenck Associates for the site was approved on June 9, 2020 by the City of Otsego. Wenck Associates has suggested additional areas will be delineated for the project. All wetland impacts will need to abide by the rules as stated in the Wetland Conservation Act and as approved in a future Notice of Decision for any replacement plan. Any wetland buffer areas that are disturbed, shall be seeded by the Developer with an appropriate wetland buffer mix and managed by the Developer for two years or until the wetland buffer areas are fully established, as determined by the City. The Developer shall install eighteen (18) Wetland Buffer signs at the edge of the wetland buffer. The Developer shall pay a cash fee in the amount of $4,500.00 to ensure installation of signs. The fee is calculated as follows: 18 signs X 250.00 per sign = $4,500.00 11. STREETS. The Developer agrees to maintain the streets within the Plat until the base course bituminous surfacing has been reasonably accepted by the City, which shall not be unreasonably denied, withheld, or delayed. Should the City be required to grade the street prior to paving, the cost of such grading shall be paid by the Developer and may be drawn from the Developer's letter of credit or cash escrow.. Should snowplowing be necessary prior to street paving, the City may plow the street prior to acceptance, and the Developer will hold harmless and indemnify the City from any and all liability claims related to such work and pay all costs associated with that work. Any plowing undertaken by the City will constitute no acceptance or evidence of acceptance of the street(s) in question. The final wear course shall not be constructed until at least one construction season after the base construction is completed and shall be delayed one more construction season if at least 75% build out is not achieved. However, the final wear course shall not be delayed for a period longer than two years after the base course is paved, regardless of build out; in which case, the Developer shall provide and escrow for fog sealing the streets in the event the final wear course is placed prior to 75% build out. Upon final completion of streets and acceptance by the City as a City street rather than a private drive, the Developer shall guarantee to the City for a period of two (2) years the streets GCC Dacotah, Inc. 210642v6 have been constructed to City standards. The warranty period shall not commence until such time as street construction iScompleted and the streets are accepted Gs City streets bvthe City. The two CDyear warranty period set forth above CO[DDleOQeG upon the date on which the City accepts the streets by FeSO|UtiOO.. The vVG[[8Dty period for UOde[gFOUOd utilities is two years and Gh8|| CO[DO08DCe fO||OVViOg COOOp|8tiDO and @CCept8OCe by City COUOCi| by FeGO|UtiOD.. A O0iDiDlUO0 Of 10% Of the total S8CUritv [8qUiFHd under this Contract shall be retained as warranty security as specified in the section of this Contract. 12' STREET LIGHT OPERATION COSTS. The Developer shall b8responsible for the cost nf street light iDGtG||8tiOO consistent with @ street lighting p|@O FH8sOD3b|y approved by the City. The Developer shall pay to the City a cash fee in the amount of $500.00 for street light installation at the terminus of Jansen /\V8OUe. The fee iacalculated amfollows: one (1)street light at$5OO.0Oper street light. 13. CLEAN UP' The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, subcontractors, their agents or assigns. Prior t0any construction 0Othe Subject Property, the Developer shall identify in writing a responsible party and schedule for erosion control, street cleaning, and street sweeping. 14. LANDSCAPING. Landscaping shall be installed in accordance with the approved landscape plan. The Developer shall post 8 $50.000.00 |GDdSC8piOg security UpOO iSSU8Dce of building permit to ensure that the landscaping is installed in accordance with the approved plan. 15. DEVVATER|NG Due tOthe variable nature Ofgroundwater levels and StO[nUvV8t8rflows, itwill bethe Developer's and the Developer's contractors and subcontractors responsibility to satisfy themselves with regard to the elevation of groundwater in the area and the level of effort needed to pedb0O deVV8teriOg and gtO0O MovV routing operations. All deVV8t8hOgshall bBiDaccordance with all applicable county, state, and federal rules and [8gUl8tiOOG. [lNR regulations regarding appropriations permits shall also be strictly followed. 16' SPECIAL PROVISIONS. The following special provisions shall apply tothis Agreement: A. |Dlp|e[DeOt@tiOO of the conditions listed in the Findings Of Fact approved by the City Council on September14.2O2O. 8 GCCDn,ouah.Inc. B. The site plans and building construction shall be developed in accordance with plans approved by the City Council. C. A building permit is required prior to commencing construction. The construction shall be completed in accordance with the approval of the Building Official and Fire Marshal. D. No direct lot access to 65 th Street (CSAH 37) shall be allowed as determined by Wright County. E. All signage on the property shall comply with Zoning Ordinance requirements. The Developer must obtain a sign permit prior to installation of any signs on the property or buildings. F. Exterior lights shall be directed downward or shielded in compliance with Zoning Ordinance requirements. G. Trash containers shall be stored inside the building or in a gated enclosure in compliance with Zoning Ordinance Requirements. H. Any outdoor storage of trash or recycling containers will require construction of an enclosure meeting the requirements of Section 11-18-4.0 of the Zoning Ordinance and shall be subject to the approval of the Zoning Administrator. I. Any outdoor storage of trash or recycling containers shall not encroach upon required parking spaces or required loading space as required by the Zoning Ordinance. J. The property stored shall not include any waste, except as provided in section I 1 -18- 4.0 of the Zoning Ordinance. K. The Developer shall install on -site and off street parking in compliance with Zoning Ordinance requirements subject to the review of the Zoning Administrator. L. The Developer shall submit as -built record drawings following the completion of this project. GCC Dacotah, Inc. 210642v6 M. The Developer shall install a permanent cul-de-sac at the east property line where the current temporary turnaround is located at the terminus of Jansen Avenue. N. The City shall not be responsible for any costs associated with improving railroad crossings at Labeaux Avenue (CSAH 19) and 651h Street (CSAH 37) as may be required of the Developer by Wright County or any other agency as a condition of plat approval and development of the Subject Property. 17. SECURITY. To ensure compliance with the terms of this Agreement, and construction of all public improvements, and satisfaction of all other obligations, the Developer shall furnish the City with a cash escrow or Irrevocable Standby Letter of Credit with automatic renewal provisions in the amount as required under this Agreement. The issuer and form of the security (other than cash escrow) shall be subject to City approval in its reasonable discretion. The security shall be issued by a banking institution in good standing as determined by the City and approved by the City Administrator. The City shall have the ability to draw on the security at a bank or branch bank located within fifty (50) miles of the City Hall. The security shall contain an automatic renewal provision and shall not expire until all the Development is complete and fully and finally accepted by the City, and all terms of this Agreement are satisfied. The City may draw down the security, on five (5) business days written notice to the Developer, for any violation of the terms of this Agreement or without notice if the security is allowed to lapse prior to the end of the required term. If the required public improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may also draw it down without notice. If the security is drawn down, the proceeds shall be used to cure the default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval not to be unreasonably withheld or delayed, the security shall be reduced from time to time in proportion to the work completed, but not below ten (10) percent which is the amount of the warranty security. For purposes of this Section, the warranty period shall be a twelve (12) month period after the applicable work has been completed, except with respect to streets, for which the warranty period shall be two years as addressed elsewhere in this Agreement. 10 GCC Dacotah, Inc. 210642v6 This security amount shall be submitted to the City prior to execution of the Agreement. All administrative and legal fees related to plan review, drafting of this Agreement and any other necessary items shall be paid to the City prior to execution of the Agreement, which are in the aggregate amount of $ Upon completion of the work contemplated hereunder and expiration of the warranty period, the remaining security shall be promptly released to Developer. 18. SUMMARY OF SECURITY REQUIREMENTS. The amount of the security described above is calculated as follows: CONSTRUCTION COSTS: A. Site Grading, Erosion & Sediment Control & Wetland Protection, $40,020.00 B. Engineering & Surveying Construction Services (8.0) $5,851.30 C. Landscaping $50,000.00 TOTAL SUBTOTAL: $95,871.30 TOTAL IRREVOCABLE LETTER OF CREDIT OR CASH ESCROW FOR SECURITY (125% OF SUBTOTAL) $119,839.13 ADDITIONAL ESCROW A. Legal Service (1.0%) ($1,500.00 minimum) $1,500.00 B. GIS Data Entry Fee $250.00 C. Outstanding Escrow Balance for Application Review $5,661.50 D. City Construction Administration and Utility & Street Inspection (8%) or ($10,000.00 minimum) .00 TOTAL ESCROW $17,411.50 This breakdown is not a restriction on the use of the security. 19. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Agreement which must be furnished by the Developer prior to issuance of a building permit. A. Wetland Signs $4,500.00 B. City Administrative (1.0 %) or ($1,500.00 minimum) $1,500.00 C. Street Light Operation Costs $500.00 11 GCC Dacotah, Inc. 210642v6 D. Storm Water Impact Fee $54,896.40 SUBTOTAL CASH REQUIREMENTS $61,396.40 20. ACKNOWLEDGEMENT. The Developer acknowledges that approval of installation of the Improvements does not constitute a guarantee by the City of any future subdivision approvals and that the Developer performs the work on the Subject Property at its own risk. 21. RESPONSIBILITY FOR COSTS. A. The Developer shall pay all costs incurred by it or the City in conjunction with the development of the Property, including but not limited to legal, planning, engineering and inspection expenses incurred in connection with approval of the site plan, the preparation of this Agreement, review of any other plans and documents. B. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from site approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Agreement, including engineering and attorneys' fees. D. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Agreement within thirty (30) days after receipt. Bills not paid within thirty (30) days shall accrue interest at the rate of eighteen percent (18%) per year. 22. MISCELLANEOUS. A. Third parties shall have no recourse against the City under this Agreement. B. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Agreement is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Agreement. 12 GCC Dacotah, Inc. 210642v6 C. The action or inaction of the City 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. The City's failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. D. This Agreement shall run with the land and may be recorded against the title to the Subject Property. The Developer covenants with the City, its successors and assigns, that the Developer has fee title to the Subject Property and/or has obtained consents to this Agreement, in the form attached hereto, from all parties who have an interest in the Subject Property; that there are no unrecorded interests in the Subject Property; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. E. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. F. Breach of the terms of this Agreement by the Developer, including nonpayment of billings from the City, shall be grounds for denial of building permits and certificates of occupancy, and the halting of all work on the Subject Property. G. The Developer represents to the City that the development complies with all City, county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the development does not comply, the City may, at its option, refuse to allow construction or development work in the development until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. 13 GCC Dacotah, Inc. 210642v6 Grading, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of a permanent or temporary Certificate of Occupancy. J. If building permits are issued prior to the acceptance of public improvements, the Developer assumes all liability and 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. No sewer and water connections or inspections may be conducted and no one may occupy a building for which a building permit is issued on either a temporary or permanent basis until the streets needed for access have been paved with a bituminous surface and the utilities are reasonably accepted by the City Engineer. K. Should the Developer convey any lot or lots in the Development to a third party, the City and the owner of that lot or those lots may amend this Development Contract or other city approvals or agreements for development or use of those lots without the approval or consent of the Developer or other lot owners in the Development. Private agreements between the owners of lots within the Development for shared service or access and related matters necessary for the efficient use of the Development shall be the responsibility of the lot owners and shall not bind or restrict City authority to approve applications from any lot owner in the Development. 23. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than ten (10) days in advance. This Agreement is a license for the City to act, and it shall not be necessary for the City to seek a Court order for permission to enter the Subject Property. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part. 24. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: GCC Dacotah, Inc. C/O Cristopher Munoz, 600 S. Cherry St., Suite 1000, Glendale, CO 14 GCC Dacotah, Inc. 210642v6 80246. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Otsego City Hall, 13400 90th Street NE, Otsego, Minnesota 55330. [The remainder of this page has been intentionally left blank. Signature pages follow.] 15 GCC Dacotah, Inc. 210642v6 CITY OF OTSEGO xW (SEAL) USN STATE OF MINNESOTA )ss. COUNTY OF WRIGHT Jessica L. Stockamp, Mayor Bethany Benting, Deputy City Clerk The foregoing instrument was acknowledged before me this day of 1 2020, by Jessica L. Stockamp and by Bethany Benting, the Mayor and Deputy City Clerk of the City of Otsego, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. NOTARY PUBLIC 16 GCC Dacotah, Inc. 210642v6 DEVELOPER: GCC DACOTAH, INC. In STATE OF )ss. COUNTY OF Cristopher Munoz Its: Secretary The foregoing instrument was acknowledged before me this day of 7 2020, by Cristopher Munoz, the Secretary of GCC Dacotah, Inc., a South Dakota corporation, on behalf of said corporation. NOTARY PUBLIC DRAFTED BY: CAMPBELL, KNUTSON Professional Association 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: 651-452-5000 DSK/smt 17 GCC Dacotah, Inc. 210642v6 [BANK LETTERHEAD] IRREVOCABLE LETTER OF CREDIT TO: City of Otsego City Hall 13400 90th Street NE Otsego, Minnesota 55330 Dear Sir or Madam: No. _ Date: We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable Letter of Credit in the amount of $ available to you by your draft drawn on sight on the undersigned bank. The draft must: a) Bear the clause, "Drawn under Letter of Credit No. dated 2 , of (Name of Bank) "• b) Be signed by the City Administrator or Finance Director of the City of Otsego. c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on November 30, 2 This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written notice to the Otsego Finance Director that it intends to modify the terms of, or cancel, this Letter of Credit. Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail, at least forty-five (45) days prior to the next annual renewal date addressed as follows: Otsego Finance Director, Otsego City Hall, 13400 90th Street NE, Otsego, MN 55330, and is actually received by the Finance Director at least thirty (30) days prior to the renewal date. This Letter of Credit sets forth in full our understanding which shall not in any way be modified, amended, amplified, or limited by reference to any document, instrument, or agreement, whether or not referred to herein. This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be made under this Letter of Credit. This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600. We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation. [NAME OF BANK] 19 18 GCC Dacotah, Inc. 210642v6 Its (Above Space is Reserved for Recording Information) Minnesota Wetland Conservation Act Declaration of Restrictions and Covenants for Project -Specific Wetland Replacement Replacement Wetland Declarant: General Location of Replacement: Sec. , Twp. , Rge. County of This Declaration of Restrictions and Covenants for Project -Specific Wetland Replacement Wetland (Declaration) is made this day of by the undersigned Declarant: RECITALS A. The Declarant holds the fee title or perpetual easement on the real property described in Exhibit A, attached hereto. B. This real property is the site of a Replacement Wetland, as defined in Minnesota Rules 8420.0111, subp. 60. Exhibit B, attached hereto, is a map or survey of the subject Replacement Wetland. C. The Declarant is seeking approval of (1) a replacement plan under Minnesota Statutes section 103G.222. D. The Replacement Wetland is subject to the Wetland Conservation Act of 1991, as amended, Minnesota Statutes section 103G.222 et seq., and all other provisions of law that apply to wetlands, except that the exemptions in Minnesota Statutes section 103G.2241 do not apply to the Replacement Wetland, pursuant to Minnesota Rules 8420.0420. E. The Local Government Unit (LGU) charged with approval of the Replacement Plan is whose address is 19 GCC Dacotah, Inc. 210642v6 F. All references in this instrument to Minnesota Statutes and Rules are to the Statutes and Rules currently in effect and as amended or renumbered in the future RESTRICTIONS AND COVENANTS The Declarant makes the following declaration of restrictions and covenants for the Replacement Wetland. These restrictions and covenants shall run with the land, and bind Declarant, and Declarant's heirs, successors, and assigns: 1. The Declarant shall maintain a Replacement Wetland of the size and type specified in the replacement plan approved by the LGU and on file at the offices of the LGU. Declarant shall not make any use of the Replacement Wetland that would adversely affect the functions or values of the wetland as determined by Minnesota Rules 8420.0522, and as specified in the replacement plan. 2. Declarant shall pay the costs of maintenance, repairs, reconstruction, and replacement of the Replacement Wetland, which the LGU or the State of Minnesota through the Minnesota Board of Water and Soil Resources may deem necessary to comply with the specifications for the Replacement Wetland in the approved replacement plan. 3. Declarant grants to the LGU, the State of Minnesota, and the agents and employees of the LGU and the State of Minnesota, reasonable access to the Replacement Wetland for inspection, monitoring, and enforcement purposes. This Declaration grants no access to or entry on the lands described to the general public. 4. Declarant represents that he or she has a fee simple or easement interest in the land on which the Replacement Wetland is or will be located. Declarant represents that he or she has obtained the consent of all other parties who may have an interest in the land on which the Replacement Wetland is or will be located to the creation of the restrictions and covenants herein, and that, all such parties have agreed in writing to subordinate their interests to these restrictions and covenants, pursuant to the attached Consent and Subordination Agreement(s). 5. Declarant shall record or file this Declaration, pay all costs associated with recording or filing, and provide proof of recording or filing to the LGU. If this Declaration is given pursuant to a replacement plan, such proof shall be provided to the LGU before proceeding with construction of the Replacement Wetland. 6. Acknowledge that this Easement shall be unlimited in duration, without being re- recorded. This Easement shall be deemed to be a perpetual conservation easement pursuant to Minn. Stat. ch. 84C. 7. If the replacement plan approved by the LGU and on file at its offices requires the establishment of areas of native vegetative cover, the term "Replacement Wetland" as used in this Declaration shall also include the required areas of permanent vegetative cover, even if such areas are not wetlands. All provisions of this Declaration that apply to the Replacement Wetland shall apply equally to the required areas of native vegetative cover. In addition, the Declarant: (a) Shall comply with the applicable requirements of Minnesota Rules 8420.0526; 20 GCC Dacotah, Inc. 210642v6 /h\ Shall, at Ued@r8Dt's COSt. establish and [O8iOt8iO permanent vegetative COV8[ OD areas SpeChjod in the n5p|8CeDlent plan for native vegetative COVe[. including any necessary planting and replanting thereof, and other conservation practices, in accordance with the replacement (c) Shall not produce agricultural crops on the areas specified in the replacement plan; b0 Shall not graze livestock OOthe areas specified iOthe replacement plan or; (e) Gh8U not place any Dl@teh8|G, SUbSt@OCB8. or other objects, nor erect or construct any type Of StnUCtU[e. temporary or permanent, OO the 2Re@G specified in the Fep|8C8OleOt p|@O. except as provided in the replacement plan; Ul Shall, atDed@[GDt'Scost, beresponsible for weed control bvcomplying VVithOOXOusVVeedCODt[V| laws and emergency control of pests necessary to protect the public health on the areas specified in the replacement plan; and bd Shall comply with any other requirements O[restrictions specified iDthe replacement plaO, including, but not limited to, haying, mowing, timber management or other vegetative alterations that dDnot enhance O[would degrade the ecological functions and values Ofthe replacement 8. This Declaration may bemodified only bvthe joint written approval Ufthe UGLjand the State OfMinnesota through the Minnesota Board OfWater and Soil Resources. |fthe Replacement Wetland has been used to mitigate wetland losses under the Federal Water Pollution Control Act, the U.S. Army Corps of Engineers (or successor agency) must also agree to the modification in writing. Such modification may include the [8|B8Se of land contained in the legal description GbOVe, if it is determined that non -wetland 8ne88 have been encumbered by this OeC|@radiDO. unless the approved replacement plan designates these non -wetland areas for establishment of permanent vegetative cover. 8. This DeC@[@UOD may be enforced, at |aVV Or in equhv, by the LGU' or by the State Of K8iOOeGOtG. The LGi]and the State OfMinnesota shall be entitled b}recover @Daward Ofreasonable attorneys fees from Declarant iDany action tOenforce this Declaration. The right tOenforce the terms Of this [}8C|G[atiOO is not waived or forfeited by any fn[beG[aDC8 or failure to act OO the part of the State or LGU. If the subject replacement area is to be Used partially or wholly to fulfill permit requirements under the Federal Water PO||UtiOD CVOƒ[O| Act or 8 federal farm p[Ug[aO0, then the p[OViGiVDS of this OeC|@[8tiOn that run t0the State o[the LGUmay also be enforced bythe United States OfAmerica iO8court Of competent jurisdiction. 10. This Declaration must berecorded and proof Ofrecording submitted b}the LGU or other regulatory authority in order to be valid. Signature of D8C@ngnt 21 GCC Dacothh.bnc. Signature of Declarant STATE OF MINNESOTA ss. COUNTY OF This instrument was acknowledged before me on (date) by (name(s) of person(s). (Signature of Notarial Officer) (Title) My commission expires: Attachments: Exhibit A (legal description) Exhibit B (map or survey of Replacement Wetland) This instrument drafted by: 22 GCC Dacotah, Inc. 210642v6 MINNESOTA WETLAND CONSERVATION ACT AFFIDAVIT OF LANDOWNER(S) STATE OF MINNESOTA (ss. COUNTY OF the Affiant herein, being first duly sworn, deposes and says: Affiant is the owner of land described as follows, to -wit: (see attached legal description in Declaration) 2. Affiant is well-acquainted with the above -described land. 3. As of 2_, no persons were in possession of or claiming title to said land other than Affiant. 4. There have been no improvements made during the one hundred twenty (120) days prior to the above date for which any mechanics' liens might have arisen. 5. All taxes and assessments levied against the property have been paid when due, and such property is free and clear of any tax lien except for current taxes not yet due or not yet delinquent. 6. No lien for unpaid income taxes has been filed or is outstanding against the property. 7. The land described above is free of all mortgages, easements, liens and other encumbrances except as specified on the attached Form A-2 (Consent to Replacement Wetland). 8. No judgment or decree has been entered against Affiant that remains unsatisfied. 9. Affiant has not filed a bankruptcy petition nor had one filed against him under Title 11 of the United States Code. Further your Affiant sayeth not. Subscribed and sworn to before me this _ day of Notary Public AG:962 v1 23 GCC Dacotah, Inc. 210642v6 CONSENT TO REPLACEMENT WETLAND lands: WHEREAS, [Insert same legal description from Replacement Wetland Declaration] AND WHEREAS, the undersigned, pursuant to: Mortgage Utility Easement for utility line or pipeline which runs through the Replacement Wetland Drainage Easement for ditch, tile line or other drainage system which runs through the Replacement Wetland Contract for Deed Lien Other (specify)_ is the fee owner(s) of the following has an interest in the land which document is dated , and was recorded on the Office of the County Recorder for Wright County, in Book , Page _, as Document No. and in WHEREAS, the fee owner or Landowner as defined in Minn. Rules part 8420.0110, subp. 29 intends to restore or create a Replacement Wetland under Minn. Stat. sec. 103G.222 and Minn. Rules part 8420.0530 or Minn. Rules part 8420.0740, upon the land described above. NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the undersigned hereby consents to the creation or restoration of the Replacement Wetland. The undersigned acknowledges that its interest in the land on which the Replacement Wetland is located shall be subject to all federal, state and local laws and regulations regarding wetlands, including the Declaration of Restrictions and Covenants for Replacement Wetland that is attached hereto. 24 210642v6 GCC of America, Inc. IN TESTIMONY WHEREOF, Of STATE [)FK8|NNEGOTA \ (oa. COUNTY OF \ the Ofthe undersigned, has executed this document this day ACKNOWLEDGEMENT The foregoing instrument was acknowledged beforemethis___.dayof by Notary Public Notary Stamp or Seal THIS INSTRUMENT WAS DRAFTED BY: Board ofWater and Soil Resources 52OLafayette Road St. Paul, yWiDneoote55155 25 GC%of America, Inc.