RES 2021-103 Approving Revised SIPA for AGCC Dacotah, Inc.CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTION NO: 2021-103
APPROVING A REVISED 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, 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, site and building plans, a conditional use permit, and a Site Improvement Performance Agreement
for the development were approved on 24 August 2020 by the City Council; and
WHEREAS, an amendment to the conditional use permit and revisions to the site and building plans were
approved on 13 December 2021 by the City Council, which necessitates revision of the Site Improvement
Performance Agreement; and
WHEREAS, those obligations required by the Zoning Ordinance are outlined and memorialized the attached
revised 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, LLC is hereby approved inform subject to modification of fees, charges, and securities
as approved by City staff.
2. The Mayor and City Clerk are hereby authorized to execute the Site Improvement Performance
Agreement on behalf of the City of Otsego.
ADOPTED by the Otsego City Council this 13th day of December, 2021.
MOTION BY:MOORES
SECONDED BY: DAHL
IN FAVOR: STOCKAMP,
OPPOSED: NONE
DARKENWALD,
GOEDE, MOORES, DAHL
CITY OF OTSEGO
Jessica L. Stockamp, Ma or
ATTEST:
jac ` �.'
Audra Etz , City Clerk
(reserved for recording information)
AMENDED AND RESTATED SITE IMPROVEMENT PERFORMANCE
AGREEMENT
GCC DACOTAH, INC.
THIS AMENDED AND RESTATED SITE IMPROVEMENT PERFORMANCE AGREEMENT
("Agreement") dated
2021, by and between the CITY OF OTSEGO, a Minnesota
municipal corporation ("City") and GCC DACOTAH, INC., a South Dakota corporation ("Developer").
RECITALS
A. Developer and the City of Otsego entered into a Site Improvement Performance Agreement
dated December 23, 2020 ("Original Agreement") for the property legally described as Lot 1, Block 1, Otsego
Industrial Park 6th Addition, Wright County, Minnesota, according to the recorded plat thereof ("Original
Property Description");
B. Following the execution of the Original Agreement, the Developer submitted revised site and
building plans necessitating amendments to the approved site and building plans and conditional use permit.
C. The parties desire to amend and restate the Original Agreement to reflect the changes in the
site and building plans and the amendment to the conditional use permit. This Amended and Restated Site
Improvement Performance Agreement supersedes the previous Site Improvement Performance Agreement.
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1. BACKGROUND.
A. The Developer has submitted to the City a site plan application and conditional use permit for
improvements on the property in the City of Otsego, Minnesota, legally described as Lot 1, Block 1, Otsego
Industrial Park 0 Addition (hereinafter referred to as the "Subject Property").
B. The proposed site plan improvements to the above -described property includes the
construction of a 768 square foot one story office building, a future 22,500 square foot storage building, two
storage silos, future installation of four additional storage silos, with proposed use as a storage and transfer
site involving the transport, loading, unloading, trans -loading, storage and transfer of building materials and
other personal property useful for the operation of the cement transfer station and plant; including without
limitationI cement, sand, and fly ash, from a rail spur to be constructed off the abutting BNSF rail line, and
the transport of materials off -site by truck. Access to the property will be maintained at the permanent cul-
de-sac terminus of Jansen Avenue NE within Lot 1, Block 1, Otsego Industrial Park 6th Addition
("Improvements")
C. The Developer shall install and complete the Improvements by October 31, 2022. For
purposes of this agreement, the Improvements are the site improvements required by the Agreement,
specifically the erosion control, storm sewer facilities, grading, wetland buffer signage, and streets within the
Plat, the cul-de-sac at the terminus of Jansen Avenue, street light installation, landscaping and similar
improvements; provided, however, that the Developer and the City acknowledge the construction of a 768
square foot one story office building, a 22,500 square foot storage building, and storage silos as further
detailed in the first sentence of Section 1(B) is expressly excluded from the definition of Improvements under
this Agreement.
D. The Developer may phase construction of the office building and warehouse building shown
on the approved site plan. Erection of the silo structures, which are defined as accessory structures by the
Zoning Ordinance, upon the Subject Property shall occur concurrently with either the office building or
warehouse pursuant to Section 11-18-2.A of the Zoning Ordinance. Completion of any structure upon the
Subject property shall be in compliance with Section 9-1-2 of the City Code,
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2. CONDITIONS OF APPROVAL, This Agreement is a condition of City site plan approval and
will be recorded against the subject property.
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 %J this Agreement, the written terms shall control. The plans are:
Plan A —Site Plan
Plan B —Final Grading, 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
4. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan B, shall
be implemented by the Developer and inspected and approved by the City, which shall not be unreasonably
denied, withheld, or delayed. The City may impose reasonable additional erosion control requirements if the
existing erosion control plan is not effective. All areas disturbed by the grading operations shall be stabilized
per the MPCA Stormwater Permit for Construction Activity. Seed shall be in accordance with the City's
current seeding specification which may include temporary seed to provide ground cover as rapidly as
possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed retention.
The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply
with the MPCA Stormwater Permit for Construction Activity or with the erosion control plan and schedule or
supplementary instructions received from the City, the City, after a 48 hours' written notice to the Developer,
may take such action as it deems appropriate to control erosion. If the Developer does not reimburse the
City for any reasonable cost the City incurred for such work within ten (10) days, the City may draw down the
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letter of credit or the cash escrow, as the case may be, to pay any costs. No development, utility or street
construction will be allowed and no building permits will be issued unless the plat is in full compliance with
the approved erosion control plan.
The Developer is responsible for obtaining Cl" 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 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 $58,305.00 for the Storm Water Impact
Fee which is calculated as follows: 16.25 Net Acres X $3,588.00 = $58,305.00
Final locations and sizes of all storm sewer facilities will be reviewed by City staff with the
building permit plans.
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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,
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 $7,598.50.
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.
posted.
All other amounts listed as flat fees are non-refundable and available immediately for City use when
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
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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 he, verified elevations of the following: a) cross sections
of storm water treatment/infiltration basins; b) location and elevations along all swales, wetlands, wetland
gation 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
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.
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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 idened 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. WETLAND REPLACEMENT AND MITIGATION. 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 post a $359,608.11 security for wetland mitigation. This security may be in the
form of a letter of credit separate from the primary development security or in the form of anon -interest
bearing cash escrow with the City. If the mitigation area is found to be unsuccessful after the mandatory
five-year warranty period, the City may elect to keep the security to be used for this mitigation project or for
wetland mitigation/restoration elsewhere within the City. In addition, the City may draw down the security at
any time during the warranty period if the Developer fails to take corrective measures as directed by the City
to perform the work recommended. Security for wetland obligations will be released when the City receives
proof that Developer has ownership of the required wetland credits.
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:
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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 streets) 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 ()) years the streets
have been 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 two (2) 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 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.
12. 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.
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13. LANDSCAPING. Landscaping shall be installed in accordance with the approved landscape
plan. The Developer shall post a $83,335.87 landscaping security upon issuance of a building permit to
ensure that the landscaping is installed in accordance with the approved plan.
14. DEWATERING. Due to the variable nature of groundwater levels and stormwater flows, it
will be the 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 perform
dewatering and storm flow routing operations. All dewatering shall be in accordance with all applicable
county, state, and federal rules and regulations. DNR regulations regarding appropriations permits shall also
be strictly followed.
15. SPECIAL PROVISIONS. The following special provisions shall apply to this Agreement:
A. Implementation of the conditions listed in the Findings of Fact approved by the City
Council on December 13, 2021.
B. The site plans and building construction shall be developed in accordance with plans
approved by the City Council.
C. The conditional use permit approved by the City Council on August 24, 2020 remains
in full force and effect except as modified herein.
D. The site and buildings shall be developed in accordance with the plans on file with the
City except as modified herein or approved by City staff.
E. The Developer shall complete the installation of six (6) storage silos by January 31,
2027 or request an extension of the conditional use permit approval as provided for
by Chapter 4 of the Zoning Ordinance.
F. The temporary gravel drive shall be removed when the temporary load out facility is
removed upon completion of the permanent site improvements.
G. The landscape plan shall be revised to incorporate deciduous trees at the south end
of the rail storage area and increase the height of proposed coniferous trees shown
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on the landscape plan to a minimum height of eight (8) feet, subject to review and
approval of the Zoning Administrator.
H. Installation of any fencing shall comply with Section 11-19.4 H and requires a fence
permit, subject to review and approval of the Zoning Administrator.
The Developer shall submit a revised exterior lighting plan demonstrating compliance
with Section 11-16-6 of the Zoning Ordinance, subject to review and approval of the
Zoning Administrator.
J. All signs shall comply with Chapter 37 of the Zoning Ordinance and a sign permit shall
be required prior to installation of any signs upon the property, sign permit be issued,
subject to review and approval of the Zoning Administrator.
K. All grading, drainage, erosion control, and wetland impacts are subject to review and
approval of the City Engineer,
L. 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.
M. No direct lot access to 65th Street (CSAH 37) shall be allowed as determined by
Wright County.
E. 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.
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,
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J. The property stored shall not include any waste, except as provided in section 11-18-
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.
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 65th 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.
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
under this Agreement. The issuer and form of the security (other than cash escrow) shall be subject to City
approvaI 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.
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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. Site Grading, Erosion &Sediment Control &Wetland Protection, $40,020.00
B. Landscaping 83,335687
C. Wetland Replacement $3594608.11
TOTAL SUBTOTAL: $4821963.98
TOTAL IRREVOCABLE LETTER OF CREDIT OR CASH ESCROW
FOR SECURITY (125% OF SUBTOTAL) $603,704.98
ADDITIONAL ESCROW
A. Legal Service (1.0%) ($1,500.00 minimum) $1,500.00
B. Existing Outstanding Escrow Balance for Application Review $1,765.95
C. City Construction Administration and Utility & Street Inspection
(8%) or ($10,000.00 minimum) $5,000'00
TOTAL ESCROW
This breakdown is not a restriction on the use of the security.
DEVELOPMENT WARRANTY LETTER OF CREDIT
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A. Erosion & Sedimentation Control
TOTAL WARRANTY LETTER OF CREDIT
This breakdown is not a restriction on the use of the security.
$2;001.00
$2,001.00
18. SUMMARY OF CASH REQUIREMENTS. The followingsummary 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 & Traffic Control Signs 4,500.00
D. Storm Water Impact Fee $58,305.00
SUBTOTAL CASH REQUIREMENTS $645805.00
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 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.
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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.
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 orwaivers shall be in writing, signed by the parties
and approved by written resolution of the City Council
enforce this Agreement shall not be a waiver or release.
The City's failure to promptly take legal action to
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.
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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.
I. 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.
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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 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
foI 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: GCC Dacotah, Inc. C/O Cristopher Munoz, 600 S. Cherry St., Suite 1000, Glendale, CO
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.]
GCC Dacotah, Inc.
219543v1
CITY OF OTSEGO
BY:
(SEAL)
AND
STATE OF MINNESOTA
COUNTY OF WRIGHT
Jessica L. Stockamp, Mayor
Audra Etzel, City Clerk
The foregoing instrument was acknowledged before me t
2020) by Jessica L. Stockamp and by Audra Etzel, the Mayor
Minnesota municipal corporation, on behalf of the corporation and
City Council.
NOTARY PUBLIC
I7
is day of ,
and City Clerk of the City of Otsego, a
pursuant to the authority granted by its
219543v1
GCC Dacotah, Inc.
DEVELOPER:
GCC DACOTAH, INC.
By:
STATE OF )
)ss.
COUNTY OF )
Cristopher Munoz
Its:
Secretary
The foregoing instrument was acknowledged before me this day of ,
2021) 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: 651452-5000
DSK/smt
219543v1
GCC Dacotah, Inc.
[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,
2
This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45)
Jays 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
19
GCC Dacotah, Inc.
207246v3
(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
amendedI 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
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
20
207246v3
GCC Dacotah, Inc.
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 than firnhlp requirements of Minnesota Rules 8420.0526;
(b) Shall, at Declarant's cost, establish and maintain permanent vegetative cover on areas
specified in the replacement plan for native vegetative cover, including any necessary planting and
replanting thereof, and other conservation practices, in accordance with the replacement plan;
(c) Shall not produce agricultural crops on the areas specified in the replacement plan;
21
207246v3
GCC Dacotah, Inc.
(d) Shall not graze livestock on the areas specified in the replacement plan or;
(e) Shall not place any materials, substances, or other objects, nor erect or construct any type of
structure, temporary or permanent, on the areas specified in the replacement plan, except as
provided in the replacement plan;
(f) Shall, at Declarant's cost, be responsible for weed control by complying with noxious weed control
laws and emergency control of pests necessary to protect the public health on the areas specified in
the replacement plan; and
(g) Shall comply with any other requirements or restrictions specified in the replacement plan,
including, but not limited to, haying, mowing, timber management or other vegetative alterations
that do not enhance or would degrade the ecological functions and values of the replacement site.
8. This Declaration may be modified only by the joint written approval of the LGU and the State
of Minnesota through the Minnesota Board of Water and Soil Resources. If the 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 release of land contained in the legal description above, if it is determined that non -wetland
areas have been encumbered by this Declaration, unless the approved replacement plan designates these
non -wetland areas for establishment of permanent vegetative cover.
9. This Declaration may be enforced, at law or in equity, by the LGU, or by the State of
Minnesota. The LGU and the State of Minnesota shall be entitled to recover an award of reasonable
attorneys fees from Declarant in any action to enforce this Declaration. The right to enforce the terms of
this Declaration is not waived or forfeited by any forbearance or failure to act on 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 Pollution Control Act or a federal farm program, then the provisions of this Declaration
that run to the State or the LGU may also be enforced by the United States of America in a court of
competent jurisdiction.
10. This Declaration must be recorded and proof of recording submitted to the LGU or other
regulatory authority in order to be valid.
Signature of Declarant
Signature of Declarant
STATE OF MINNESOTA )
ss.
COUNTY OF )
This instrument was acknowledged before me on
(date) by (name(s) of person(s).
22
207246v3
GCC Dacotah, Inc.
(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:
23
207246v3
GCC Dacotah, Inc.
MINNESOTA WETLAND CONSERVATION ACT
AFFIDAVIT OF LANDOWNER(S)
STATE OF MINNESOTA )
(ss.
COUNTY OF )
the Affiant herein, being first duly
swornI deposes and says:
1. 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 , 2
Notary Public
AG:962 v1
24
207246v3
GCC Dacotah, Inc.
CONSENT TO REPLACEMENT WETLAND
lands:
WHEREAS,
[Insert same legal description from Replacement Wetland
Declaration]
AND WHEREAS, the undersigned,
pursuant to:
Mortgage
is the fee owners) of the following
has an interest in the land
Utility Easement for utility line or pipeline
which runs through the Replacement Wetland
Drainage Easement for ditch, the line or other
drainage system which runs through the
Replacement Wetland
Contract for Deed
Lien
Other (specify)
which document is dated
the Office of the County Recorder for Wright County,
and
and was recorded on
in Book ,Page , as Document No.
u�
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.
GCC of America,
Inc.
207246v3
IN TESTIMONY WHEREOF,
of
STATE OF MINNESOTA )
( ss.
COUNTY OF )
the
of the undersigned, has executed this document this
Title
ACKNOWLEDGEMENT
day
The foregoing instrument was acknowledged before me this day of , by
Notary Public
Notary Stamp or Seal
THIS INSTRUMENT WAS DRAFTED BY:
Board of Water and Soil Resources
520 Lafayette Road
St. Paul, Minnesota 55155
26
GCC of America,
Inc.
207246v3