RES 2021-53 Approving a Site Improvement Performance Agreement for Lot 1, Block 1 Parkview Retail 2nd AddnCITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO: 2021-53
APPROVING A SITE IMPROVEMENT PERFORMANCE AGREEMENT
FOR LOT 1, BLOCK 1 PARKVIEW RETAIL 2"D ADDITION
WHEREAS, WMG Development, LLC (the "developer") is proposing development of Lot 1, Block 1, Parkview
Retail 2"d Addition; and
WHEREAS, site and building plans and a conditional use permit for the development were approved on 12
July 2021 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
WMG Development, LLC is hereby approved in form subject to modification of fees, charges, and
securities as approved by City staff.
2. The Mayor and City Clerl< are hereby authorized to execute the Site Improvement Performance
Agreement on behalf of the City of Otsego.
ADOPTED by the City Council of the City of Otsego this 12th day of July, 2021.
MOTION BY: Moores
SECONDED BY: Dahl
INFAVOR: Stockamp, Dahl, Darkenwald, Goede, and Moores
OPPOSED: none
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CITY OF OTSEGO
ATTEST:
Audra Etzel, City Clerk
(renewed for recording information)
SITE IMPROVEMENT PERFORMANCE
AGREEMENT
(OTSEGO DENTAL OFFICE AND RESTA URANT)
THIS SITE IMPROVEMENT PERFORMANCE AGREEMENT ("Agreement") dated
12021, by and between the CITY OF OTSEGO, a Minnesota municipal corporation
("City") and WMG DEVELOPMENT, LLC, a Delaware limited liability company (the "Developer").
1. BACKGROUND.
A. The Developer has submitted to the City a site plan and conditional use permit
application for property in the City of Otsego, Minnesota, legally described as Lot 1, Block 1, Parkview
Retail 2n1 Addition, Wright County, Minnesota according to the recorded plat thereof (hereinafter
referred to as the "Subject Property").
B. The development of the above described property includes the construction of a 5,409
square foot principal building, with a medical office tenant and convenience food restaurant and drive through
tenant.
2. CONDITIONS OF APPROVAL. This Agreement is a condition of City site plan approval and
will be recorded against the Subject Property.
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3. PLANS. The Subject Property shall be developed in accordance with the following plans
which are on file with the City. The plans shall not be attached to this Agreement. If the plans vary from the
written terms of this Agreement, the written terms shall control. The plans are:
Plan A —Site Plan
Plan B —Grading and Drainage and Erosion Control Plan
Plan C —Utility Plan
Plan D —Landscape Plan
Plan E —New Building Floor Plan
Plan F —New Building Elevations Plan
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 or obtaining a separate grading permit.
4. EROSION CONTROL. The Developer is responsible for obtaining an MPCA Construction
Permit for the site as well as developing a SWPPP for the site prior to issuance of a building permit. The
permit requires that all erosion and sediment BMPs be clearly outlined in a SWPPP. Changes made
throughout construction must be documented in the SWPPP. All basin slopes and slopes adjacent to
wetlands must have erosion control blanket installed.
Additional erosion control measures may be required during construction as deemed necessary by
City staff. Any additional measures required shall be installed and maintained by the Developer.
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 Subject Property as approved by the
City Engineer.
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7. WATERMAIN. The Developer shall install new watermain with the site plan
improvements. The utility design will be reviewed with the building permit plans. The Developer shall
post a $25,102.00 security for the utility service connection to the public utilities with this agreement.
8. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The
Developer shall pay for construction observation performed by the City Engineer. Construction observation
shall include part or full time inspection of proposed public utilities as determined necessary by the City
Engineer and will be billed on hourly rates estimated to be eight percent (8%) of the estimated construction
cost of $10,000 minimum.
9. DRAINAGE AND GRADING. 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
proviAe 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 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
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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.
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.
10. 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. Upon final completion of streets and acceptance by the
City, the Developer shall guarantee to the City for a period of one (1) year that the streets have been
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constructed to City standards. The warranty period shall not commence until such time as street construction
is completed and the streets are accepted as City streets by the City. The one (1) year warranty period set
forth above commences upon the date on which the City accepts the streets by resolution. The warranty
period for underground utilities is two (2) years and shall commence following completion and acceptance
by City Council by resolution. A minimum of 10% of the total security required under this Contract shall be
retained as warranty security as specified in the section of this Contract.
11. STREET LIGHT OPERATION COSTS. The Developer shall be responsible for the cost of
street light installation consistent with a street lighting plan approved by the City. The location and type of
street lighting to be installed is to be determined by the City Engineer. The Developer shall post a cash fee
for street light installation consistent with the approved plan. The amount of this required cash payment is
$5,300.00 and consists of one (1) decorative light at $5,300.00 per light.
12. TRAILS AND SIDEWALKS. The Developer. shall provide for connection from the public
sidewalks on Parkview Avenue and 88th Street to the interior sidewalks surrounding the principal building
and to the future trail on Parrish Avenue (CSAH 42) subject to approval of the Zoning Administrator.
The Parks System Master Plan designates construction of a trail on the west side of Parrish Avenue
(CSAH 42) from 88th Street south. The Developer is responsible for grading of the trail and the Developer
shall provide a cash escrow in the amount of $6399.00 to ensure construction of the trail along the east line
of the subject site. The City will complete the trail construction between 88th Street and 87th Street at such
time as Outlot A, Parkview Retail 2nd Addition and the north commercial lot of the Parrish Meadows plat are
developed.
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 to any construction on
the 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 a $28,690.00 landscaping security upon issuance of a building permit to ensure
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that the landscaping is installed in accordance with the approved plan. All plants required as part of an
approved landscaping plan shall be maintained and kept alive and in good condition. Dead plants or plants
in poor health or condition shall be treated or replaced in accordance with the approved landscape plan as
determined by the zoning administrator. Any species substitutions for replacement trees or shrubs shall be
subject to approval by the Zoning Administrator and must be demarcated on the final approved landscape
plan submitted to the City.
15. SPECIAL PROVISIONS. The following special provisions shall apply to this Agreement:
A. Implementation of the conditions listed in the Findings of Fact and Decision
approved by the City Council on July 12, 2021.
B. The site plans and building construction shall be developed in accordance with plans
approved by the City subject to stipulations of approval as outlined herein in
accordance with Section 11-9-4 of the Zoning Ordinance.
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. A schedule specifying the exterior materials and the percentage area of the materials
useA on each elevation and the overall building shall be submitted to verify compliance
with the requirements of Section 11-17-4.D.1 of the Zoning Ordinance.
E. The Developer shall provide striping for 88th Street between Parrish Avenue (CSAH
42) and Parkview Avenue with two west bound lanes and one east bound lane,
subject to review and approval of the City Engineer.
F. The proposed accesses to Parkview Avenue and 88th Street and construction
specifications for off-street parking areas shall be subject to review and approval of
the City Engineer.
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G. An exterior lighting plan including photometric measurements of light intensity and
indicating the type, location, and height of all exterior light fixtures shall be submitted
by the Developer and is subject to review and approval of the Zoning Administrator.
H. Plans for construction of the waste storage enclosure shall be submitted by the
Developer and are subject to review and approval of the Zoning Administrator for
compliance with Section 11-18-4.0 of the Zoning Ordinance.
All signs shall comply with Section 37 of the Zoning Ordinance and require approval
of a sign permit by the Zoning Administrator prior to placement upon the property.
J. All utility plans are subject to review and approval of the City Engineer.
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.
16. 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
unAer 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
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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.
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
$499,535.14. Upon completion of the work contemplated hereunder and expiration of the warranty period,
the remaining security shall be promptly released to Developer.
17. SUMMARY OF SECURITY REQUIREMENTS. The amount of the security described above
is calculated as follows:
CONSTRUCTION COSTS:
A. Watermain -Lateral and Trunk
B. Streets
TOTAL SUBTOTAL:
OTHER COSTS:
A. Site Grading, Erosion &Sediment Control
And Wetland Protection
B. Engineering &Surveying Construction Services
C. Landscaping
OTHER COSTS SUB -TOTAL
TOTAL —SUBTOTAL
TOTAL IRREVOCABLE LETTER OF CREDIT
FOR SECURITY 112504 OF SUBTOTAL
$25,102.00
1.500.00
$26,602.00
$3, 540.00
2,080.00
28,690.00
$34,250.00
$60,852.50
$76,065.00
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ESCROW
A. City Legal Expenses (Est. 1.09/oof $31,997.50 )
B. City Construction Observation (Est. 8.0% of $31,997.50)
C. GIS Data Entry Fee
D. Trail Escrow
ESCROW TOTAL
DEVELOPMENT WARRANTY LETTER OF CREDIT
A. Watermain
B. Erosion &Sedimentation Control
TOTAL WARRANTY LETTER OF CREDIT
Minimum $1,500.00
Minimum 10,000.00
250.00
6,399.00
3,765.30
177.00
$3,942.00
This breakdown is not a restriction on the use of the security.
18. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash
requirements under this Contract which must be furnished to the City prior to the City Council signing the
final plat:
A. City Administrative (Est. 1.0% of $31,787.75) Minimum $1,500.00
B. Street Light Operating Fee 5,300.00
TOTAL CASH REQUIREMENTS $61800.00
19. 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.
20. RESPONSIBILITY FOR COSTS.
A. The Developer shall pay all costs incurred by it or the City in conjunction with the
development of the Subject 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
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for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including
attorneys' fees. Notwithstanding anything contained within this Section 41(B), Developer shall not be
obligated to indemnify or defend the City from and against claims based on any negligence or willful
misconduct by the City, its employees, agents or contractors, or the failure of the City to act in accordance
with City ordinances and other applicable laws.
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 eight percent (8%) per year.
21. 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.
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.
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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.
22. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to
be performed by it hereunder, the Cityat 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.
23. 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: 1200 network Centre Drive, Suite 2, Effingham, IL 62401. 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
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care of the City Administrator at the following address: Otsego City Hall, 13400 90th Street NE, Otsego,
Minnesota 55330.
CITY OF OTSEGO
BY:
(SEAL)
STATE OF MINNESOTA )
)ss.
COUNTY OF WRIGHT )
Jessica L. Stockamp, Mayor
Audra Etzel, City Clerk
The foregoing instrument was acknowledged before me this day of ,
20211 by Jessica L. Stockamp and by Audra Etzel, the Mayor and 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
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DEVELOPER:
WMG DEVELOPMENT, LLC
By:
STATE OF )
)ss.
COUNTY OF )
Its:
The foregoing instrument was acknowledged before me this
2021, by , the of WMG
limited liability company, on behalf of said entity.
DRAFTED BY:
CAMPBELL, KNUTSON
Professional Association
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
Telephone: 651452-5000
AMP/smt
NOTARY PUBLIC
day of
DEVELOPMENT,
LLC, a Delaware
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FEE OWNER CONSENT
TO
SITE IMPROVEMENT PERFORMANCE AGREEMENT
fee owner of all or part of the property, the development of which is
governed by the foregoing Site Improvement Performance Agreement, affirms and consents to the provisions
thereof and agrees to be bound by the provisions as the same may apply to that portion of the property
owned by it.
Dated this day of
FEE OWNER
By:
STATE OF MINNESOTA )
)ss.
COUNTY OF )
Its:
The foregoing instrument was acknowledged before me this day of , 2019, by
the of on behalf of said entity.
DRAFTED BY:
CAMPBELL, KNUTSON
Professional Association
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
Telephone: 651452-5000
AMP/smt
NOTARY PUBLIC
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MORTGAGE HOLDER CONSENT
TO
SITE IMPROVEMENT PERFORMANCE AGREEMENT
a ,which holds a mortgage on all or part of the property
more particularly described in the foregoing Site Improvement Performance Agreement, which mortgage is
dated and filed for record as Document No. with the
office of the County Recorder/Registrar of Titles for Dakota County, Minnesota, for good and valuable
consideration, agrees that the Agreement shall remain in full force and effect even if it forecloses on its
mortgage.
Dated this day of
STATE OF )
)ss.
COUNTY OF )
by
2020.
By:
Its:
The foregoing instrument was acknowledged before me this day of
the
Bank, a
DRAFTED BY:
CAMPBELL, KNUTSON
Professional Association
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
Telephone: 651452-5000
AMP/smt
on behalf of said
NOTARY PUBLIC
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[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 400 p.m. on November 30,
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]
BY:
Its
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