Loading...
3.13 O2B Kids Day Care Request for City Council Action DEPARTMENT INFORMATION ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Planning City Planner Licht 14 August 2023 PRESENTER(s) REVIEWED BY: ITEM #: Consent City Administrator/Finance Director Flaherty City Engineer Wagner City Attorney Kendall 3.13 – O2B Kids Day Care STRATEGIC VISION MEETS: THE CITY OF OTSEGO: 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 RECOMMENDATION: City staff recommends the City Council approve a Conditional Use Permit and Site Improvement Performance Agreement for O2B Kids day care. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes Yes, held by Planning Commission on 17 July 2023 BACKGROUND/JUSTIFICATION: 814 Services, LLC has submitted plans for development of a daycare use with a licensed capacity of up to 159 children upon Lot 1, Block 1, Parkview Retail 3rd Addition. The subject site is located west of Parrish Avenue (CSAH 42) south of 88th Street. Day care uses are allowed with approval of a Conditional Use Permit subject to performance standards established by Chapter 30 of the Zoning Ordinance. A public hearing to consider the application was held at the Planning Commission meeting on 17 July 2023. Mr. Daniel Harris of 814 Services, LLC was present and agreed with the staff report. There were no public comments, and the public hearing was closed. The Planning Commission discussed the landscaping and fencing for the outdoor play area. The Planning Commission is recommending that the fence be metal rods versus chain link for a more decorative appearance. The Planning Commission voted 7-0 to recommend approval of the application. Findings of fact approving the Conditional Use Permit consistent with the recommendation of the Planning Commission have been prepared for consideration by the City Council. A resolution approving a Site Improvement Performance Agreement is also provided. SUPPORTING DOCUMENTS ATTACHED: • Planning Report dated 13 July 2023 • Findings of Fact and Decision • Resolution 2023-51 • Site Improvement Performance Agreement POSSIBLE MOTION PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES: Motion to approve a Conditional Use Permit allowing a day care for Lot 1, Block 1, Parkview Retail 3rd Addition subject to the conditions as stated by the Findings of Fact and Decision as presented and adopt Resolution 2023-51 approving a Site Improvement Performance Agreement. BUDGET INFORMATION FUNDING: BUDGETED: Fund 701 – Development Escrow N/A 3601 Thurston Avenue Anoka, MN 55303 763.231.5840 TPC@PlanningCo.com 1 PLANNING REPORT TO: Otsego Planning Commission FROM: D. Daniel Licht DATE: 13 July 2023 120 DAY DATE: 19 September 2023 RE: Otsego – 814 Services, LLC/Parkview Retail 3rd Addition TPC FILE: 101.02 BACKGROUND 814 Services, LLC has submitted plans for development of a daycare use with a licensed capacity of up to 159 children upon Lot 2, Block 1, Parkview Retail 3rd Addition. The subject site is located west of Parrish Avenue (CSAH 42) south of 88th Street. Day care uses are allowed with approval of a Conditional Use Permit subject to performance standards established by Chapter 30 of the Zoning Ordinance. A public hearing to consider the application has been noticed for the Planning Commission meeting on 17 July 2023 at 7:00PM. Exhibits: Site Location Map Applicant Narrative dated May 22, 2023 Elevations Civil Plans set dated 05/22/2023 (18 sheets) ANALYSIS Use. The subject site is zoned B1, Retail Business District. The proposed daycare use is allowed as a conditional use within the B1 District. Consideration of the Conditional Use Permit is to be based upon, but not limited to, the criteria established by Section 11-4-2.F of the Zoning Ordinance: 2 1. The proposed action's consistency with the specific policies and provisions of the Otsego Comprehensive Plan. Comment: The subject site is within the area planned as the City’s primary retail, service, and office development center and the Comprehensive plan guides the property for future commercial uses. The proposed daycare use is consistent with the land uses guided by the Future Land Use Plan providing for expansion of service business in Otsego. 2. The proposed use's compatibility with present and future land uses of the area. Comment: The table below summarizes existing and planned land uses surrounding the subject site: The proposed day care is an ideal transitional use between more intensive commercial uses along Parrish Avenue (CSAH 42) to residential uses west of Parkview Avenue. Direction Land Use Plan Zoning Map Existing Use North Commercial B-1 District Dunkin East Commercial PUD District SuperTarget South Commercial B-1 District Undeveloped ALDI West HD Residential R-7 District Parkview Grand 3. The proposed use's conformity with all performance standards contained within the Zoning Ordinance and other provisions of the City Code. Comment: The proposed use will comply with all requirements of the Zoning Ordinance and Engineering Manual. 4. Traffic generation of the proposed use in relation to capabilities of streets serving the property. Comment: The area is accessed via 95th Street (CSAH 39) and Parrish Avenue (CSAH 42), which are both designated as minor arterial roadways with capacity to accommodate local and regional traffic. 5. The proposed use can be accommodated by existing public services and facilities and will not overburden the City's service capacity. Comment: The subject site is within the East Sewer District established by the Comprehensive Plan where the City has planned for delivery of services for urban development and the proposed use will not overburden the City’s capacity. 3 Building Finish. The submitted plans include elevations for the proposed building. The schedule of proposed materials included on the plans is to be revised to specify the grade of the proposed exterior finishes and percentage of materials on each elevation and the over all building in accordance with Section 11-17-4.D.1 of the Zoning Ordinance. Building Height. Principal buildings within the B1 District are allowed to be up to three stories or 35 feet in height. The proposed building is a single-story structure with a pitched roof that complies with the height limits of the B-1 District. Lot Requirements. Lots within the B1 District are required to be a minimum of one acre in area and 200 feet in width. The subject site complies with the minimum lot requirements of the B1 District. Setbacks. The table below shows the setbacks required within the B1 District. The site plan complies with applicable setback requirements. Parrish Ave. CSAH 42) Parkview Ave. North South Parking ROW Interior 30ft. 30ft. 10ft. 10ft 15ft. 5ft. Off-Street Parking. Section 11-21-8 of the Zoning Ordinance requires daycare uses provide one off-street parking stall for each 4 persons of licensed capacity. The developer states that the licensed capacity of the proposed use is to be 159 children. The proposed licensed capacity of the day care use requires 40 off-street parking stalls. The site plan provides for 40 off-street parking stalls (although the site plan is mislabeled to indicate only 37 stalls are provided). The 90 degree off-street parking stalls are designed as 10 feet wide by 18 feet in depth at perimeter of the parking area allowing for a two foot overhang and accessed by a 24 foot wide two-way drive aisle. The stalls are one foot wider than required by the Zoning Ordinance, which will improve access for children from their parents cars during peak drop-off and pick-up times. The dimensions of the off-street parking area complies with Section 11-21-7.B of the Zoning Ordinance. The parking area is shown to be surfaced with asphalt and surrounded by perimeter concrete curb as required by Section 11-21-7.C and D of the Zoning Ordinance. The construction specifications for the off-street parking area are to be subject to review and approval of the City Engineer. Landscaping. A landscape plan has been submitted that provides plantings in the perimeter yards, at the building foundation, and for screening the waste. The landscape plan is to be modified to provide additional plantings along the north lot line with a mix of shade trees, ornamental trees, shrubs, and/or grasses. 4 The sizes of proposed plantings comply with the provisions of Section 11-19-2.B of the Zoning Ordinance, except that the evergreen trees must be changed to eight feet in height. Section 5- 2-3.C.2 of the City Code requires installation of in-ground irrigation for the yards and planting areas within the property, which is indicated on the landscape plan. Fence. The outdoor play areas are surrounded by four or five foot high chain link fencing. Details for the fence are shown on Sheet C810. Fences within the B1 District are allowed to be up to eight feet in height. Section 11-19-4.H.3.a of the Zoning Ordinance requires that chain link fences within the B1 District be coated with integral color vinyl and shall not include vinyl, plastic, or metal slats within the fence. The plans must be revised to specify vinyl coating for the fence and removal of the slats indicated on the fence detail. Signs. Uses within the B-1 District are allowed the following signs: One freestanding sign in the yard abutting Parrish Avenue (CSAH 42) up to 100 square feet in area and up to a height of 20 feet. One freestanding sign in the yard abutting Parkview Avenue up to 64 square feet in area and up to a height of 15 feet. Wall signs on the east and west elevations of the building up to 15 percent of the wall area facing public streets with no individual sign larger than 100 square feet. No plans for wall signs have been submitted. The site plan indicates the location of a free standing sign in the yard along Parrish Avenue (CSAH 42) and a second sign adjacent to Parkview. Avenue. The sign adjacent to Parkview Avenue must be revised to be setback 15 feet from the right-of-way line. No plans for the height or area of the proposed free standing sign have been provided. A sign permit subject to review and approval of the Zoning Administrator is required prior to placement of any signs upon the property. Exterior Lighting. An exterior lighting plan including photometric measurements of light intensity and indicating the type, location, and height of all exterior light fixtures has been submitted and complies with Section 11-16-6 of the Zoning Ordinance. Waste Storage. The submitted plans show a location for waste storage containers. Plans for construction of the enclosure are to be submitted with application for a building permit for review by the Zoning Administrator for compliance with requirements of Section 11-18-4.C of the Zoning Ordinance. Utilities. The subject site is within the East Sewer District established by the 2012 Comprehensive Plan and services are available to the property. The developer has submitted a utility plan for connection of the proposed building to City sewer and water utilities, which are subject to review and approval of the City Engineer. 5 Grading Plan. Plans for grading, erosion control, and storm water management have been submitted for the proposed development and are subject to review and approval of the City Engineer. Site Improvement Performance Agreement. Section 11-9-7 of the Zoning Ordinance requires that the developer enter into a performance agreement with the City to provide for construction of the project improvements within the subject site, subject to review by the City Attorney and approval of the City Council. RECOMMENDATION The proposed development of Lot 1, Block 1 Parkview Retail 3rd Addition is consistent with the policies of the Comprehensive Plan and complies with the requirements of the Zoning Ordinance. Our office recommends approval of the applications as outlined below. POSSIBLE ACTIONS A. Motion to recommend approval of Conditional Use Permit and site and building plans for Lot 2, Block 1, Parkview Retail 3rd Addition, subject to the following conditions: 1. The site and building plan approval and the stipulations, limitations, and conditions therein shall be applied to the property in question. All written and graphic materials officially submitted to the City shall be treated as a formal agreement between the applicant and the City. Once approved, no changes, modifications or alterations shall be made to any plan detail, standard, or specifications without prior submission of a plan modification request to the Zoning Administrator for review and approval. 2. Any mechanical equipment mounted on the roof of the building shall be screened by the parapet or other measures so as not to be visible from Parrish Avenue (CSAH 42) and Parkview Avenue, subject to review and approval of the Zoning Administrator prior to issuance of a building permit. 3. The exterior finish materials for the principal building shall comply with Section 11-17-4.D.1 of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. 4. The construction specifications for the off-street parking area shall be subject to review and approval of the City Engineer. 5. Landscaping: 6 a. The landscape plan shall be revised to provide additional plantings along the north lot line with a mix of shade trees, ornamental trees, shrubs, and/or grasses, subject to review and approval of the Zoning Administrator. b. Proposed evergreen trees shall be specified as being a minimum of eight feet in height. c. In-ground irrigation for the yards and planting areas within the property shall be installed as required by Section 5-2-3.C.2 of the City Code. 6. The proposed chain link fence shall provide for coating integral color vinyl and shall not include vinyl, plastic, or metal slats within the fence in accordance with Section 11-19-4.H.3.a of the Zoning Ordinance. 7. All signs shall comply with Chapter 37 of the Zoning Ordinance and require issuance of a sign permit approved by the Zoning Administrator. 8. The enclosure for exterior storage of waste containers shall comply with Section 11-18-4.C of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. 9. All grading, drainage, and erosion control plans shall be subject to review and approval of the City Engineer. 10. All utility plans shall be subject to review and approval of the City Engineer. 11. The property owner shall execute a Site Improvement Performance Agreement as required by Section 11-9-7 of the Zoning Ordinance, subject to review by the City Attorney and approval of the City Council. B. Motion to recommend the application be denied based on a finding that the request is inconsistent with the Comprehensive Plan and requirements of the Zoning Ordinance. C. Motion to table. c. Adam Flaherty, City Administrator/Finance Director Audra Etzel, City Clerk Ron Wagner, City Engineer David Kendall, City Attorney Daniel Harris, 814 Services, LLC Andrea Rand, ISG SITE LOCATION MAP 460 ft Overview Legend Roads CSAHCL CTYCL MUNICL PRIVATECL TWPCL Highways Interstate State Hwy US Hwy City/Township Limits c t Parcels Torrens M A Y 22, 2 0 2 3 D. Daniel Licht Planning City of Otsego 13400 90th St NE Otsego, MN 55330 ddl@planningco.com 7900 International Drive + Suite 550 + Bloomington, MN 55425 952.426.0699 + ISGInc.com Architecture + Engineering + Environmental + Planning RE: CONDITIONAL USE PERMIT APPLICATION NARRATIVE CHILD CARE DEVELOPMENT – 8891 PARRISH AVE NE Daniel, Enclosed is a Conditional Use Permit application and the supporting documents for an child care site development. The site is vacant and identified by Parcel number 118357000010. The developer is under contract to purchase the property from the property owner Parkview Partners, LLC. The Title confirms that all 2022 taxes are paid in full. The 2023 taxes will be paid upon closing of the property and we can provide that information to you when available. Enclosed is a Title Commitment and ALTA survey. Below is a more detailed description of the proposed project with this Site Plan application. SITE + PROJECT DESCRIPTION The subject site is 2.51 acres and is located between Parrish Ave NE and Parkview Ave NE. The proposed use is a childcare facility that would be 10,960 square feet with a fenced-in play area on the north and east side of the building and the parking lot on the south side of the building. Access to the site would be from Parkview Ave NE. The required number of parking spaces is 27 and the proposed site includes 37 parking spaces. The impervious area of the site would be 64.9% and the open space comprises 35.1% of the site. The site layout conforms to the setback requirements. Thank you for taking the time to review the enclosed application and supporting documents. We look forward to working with the City on this project. Please contact me at 952.426.0699 or Andrea.Rand@ISGInc.com with any questions or if there is any additional information we can provide in support of this project. Sincerely, Andrea Rand, AICP Project Coordinator f ~ T ~ ~ f f f f 1' ASPHALT SHINGLES -· r ·-- HORIZONTAL---:::~~ LAP SIDING ----------- SIDING TRIM ----•-- 9 ~ - 0 ----- BRICK BASE WITH ROWLOCK SI LL ------ f ~f f ~ l'. ~ I l'. ~ t ~~ ~~ ~ ~ I l'. ~ ~ I ~ ~ t t f ~ f f ~ 174t"'---t ~ ~ ~ ~ ASPHALT SHINGLES ~-p ~ ~ 1: ~ 1: 1: ~ HORIZONTAL------ LAP SIDING --- SIDING TRIM ---------- 0- BRICK BASE WITH ROWLOCK SILL ------- GUTTER AND DOWNSPOUTS, REFER TO CIVIL o=:r= L f I t f 1: 4· h ~ ~ -h 12 sr-- L " - CJ f ~ I ~ t ~ ~ ~ I l'. t ~ tf ~ ~ f ~ 1: CJ ASPHALT SHINGLES -· HORIZONTAL--- LAP SIDING SIDING TRIM ---- b 0 BRICK BASE WITH ROWLOCK SILL- GUTTER AND _./ DOWNSPOUTS, REFER TO CIVIL f .-_._. PREFIN. LOUVER / PREFIN. METAL CANOPY . cf e ASPHALT SHINGLES I D HORIZONTAL--.ci-----i--t LAP SIDING SIDING TRIM --__ BRICK BASE WITH ROWLOCK SILL f ~ I ~ t ~ ~ I t ~ f ~ b 0 T I tt tt tt t t tt tt f~ f ~ ~ f ~ f ~ f f ~ l'.~ l'. ~ ~ l'. ~ l'. ~ l'. l'. ~ ~ ~ ~ f ~ ~ ~ ~: ~ f f ~ ~ f ~ ~ f ~~ ~~ ~ ~ ~~ ~~ ~ l'. l'. ~ l'. l'. ~ ~ l'. ~ __ ,-t t t f t t ' f ~ ~ f ~ ~ f f ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ , t f t ft ~f I ~ "" ~ b M le' - t tt tt f ~f f ~ l'. ~ l'. l'. ~ ~ ~ ~ f ~ ~ f l'.~ ~ l'. ~ f t t ~f f ,, ft 12 5 1- f f r I t tf ~ l'. ~ ~ f ~ T ~ Fl IJ ~ 6 12 CJ 4 \ WEST ELEVATION ~\, A_l_O_l-0: SCALE: 1 /8"=1 '-0" T r f 1- f f r I l.,i' ·"' 1.§ I/' 1 I,:< --~ ----- 5° I .... --:>=±=+---t l - l±====!===U.---IL-4l==-:===L=~ = -;;:~~===1-10F=:~~,__.,~ LJ CJ 6 3 A 101 NORTH ELEVATION SCALE: 1 /8"= 1'-0" L I ~~ ~ ca ;ct ,., _l_ _,_.; ~ cc= f f I I t f 1.-c ii= f ~ f J'. J'.f ~ -1-~ T ' I± ± I T F~ WALL MOUNTED, LIGHTED SIGN, OFCI ill-,,_ 2 1\A 101 f f ~ 1-T T-1- t-_± EAST ELEVATION SCALE: 1 /8"=1 '-0" J'.~ 12 12 ~ t ~ 3 ~ ---..........._ ~ f l ; l f" ', --------,, 1-"' "' ~ ~ ± -~ -\' -'-~ f f 1: l l -b - 4' ,;;-- 11 ,, II \ I ~ "" 'c _, i~ r::l CUSTOM ALUMINUM ' TUBES-PAINT 36" CONCRETE-~ SPHERE BOLLARDS- PAINT i/ N i' "'' '·" f' - I:" --~---,- 3,--'-- l ~ ~ ,-~ =------== I '-" KNOX BOX-COORDINATE WTIH LOCAL FIRE DEPT. -------- 1 ·. SOUTH ELEVATION 1 A 101 ! SCALE: 1 /8"= 1'-0" , CJ I -h I f . 12 12 5 5 ff· f ~ f ~ J'.f J'.f f ~ J'.f ~ f J'.f f ~ f ~ f f -f~ ~ff~ f ~ I -1-~ I ~ l'. I i I ~ t T ~ ± T ±II~±I ~ T ± I T ~ ~ ± l'. ~ ~ I l'. ~ f f ~ If f~ ~~ f~ ~ f f ~ f ~ ~ ~ ~ ~ f ~~ ~~ ~~ ~ t ±~ f ± t t~ t ± t +~ t t t ~~ ~~ ~~ t ~ ~ f ± I T± f ~ ~ f ~ ~ ± f ~ j; ~ ~ ~ ~ f ~ I T T~~IT~ I T ~ ~ I I T ~Il'.~~I t ~ ~t r~ t ~ ~ t ~ ~ r ~ f ± r t r f r t f f f t t t f ~ ~ f ~ j; f i;f f~ i;f ~ j; f f ~ ~ ± f~ ~ff~ t f ~ j; f j;~ ~~ j;~ ~ f j; ~ f ~ ~ ~ ~ ~ ± ~~ ~~ ~~ ~ ff ff ;c~ ~~ f~ f -~ f ~ ~ ~ ~ ~ ~ ~ f f f f I' If f f 1: f f 1: 1: f1: , I' l 1: 1: 1: 1: I , . '~~ ~ ~~ -~ r ; T~ ~ -~ r~ I." I:" --- C ~ "" ; ~ "" T 'i=i===~ 5'· c~~ C '" -~ 'S" ~ 'S" I CJ EXTERIOR FINISH LEGEND MATERIAL MANUFACTURER DESCRIPTION AND COLOR ROOF ASPHALT SHINGLES GAF STYLE: TIMBERLINE HDZ COLOR: BIRCHWOOD SOFFIT PAN ELS LP BUILDING STYLE: SOFFIT PANELS. VENTED SOLUTIONS COLOR: QUARRY GRAY ENTRY FASCIA GAF STYLE: METAL FASCIA COLOR: CUSTOM KYNAR COATED, PURPLE WALL HORIZONTAL LAP SIDING LP BUILDING STYLE: 8", HLP SMARTSIDE, SMOOTH TEXTURE SOLUTIONS COLOR: QUARRY GRAY SIDING TRIM LP BUILDING STYLE: 6", SMOOTH TEXTURE SOLUTIONS ACCENT COLOR: TUNDRA GRAY BRICK BASE ALABAMA BRICK STYLE: STANDARD, RUNNING BOND COLOR: CORTEZ METAL CANOPY MAPES STYLE: CANTILEVER BRACKET SUPPORT CANOPIES COLOR: CUSTOM KYNAR COATED, PURPLE WALL LOUVER STYLE: METAL COLOR: CUSTOM KYNAR COATED l'. t f DO NOT SCALE PRINTS. USE FIGURED DIMENSIONS. @2022 FSDG Project: Issued for: Subject: ELEVATIONS Project Owner: EIG "T 814 Services, LLC 1695 Twelve Mile Road Suite 100 Berkley, Ml 48072 Project Consultants: FormSurfaces Design Group 10913 Marcello Lane Whitmore Lake, Ml 48189 Job No. Sheet No. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10,960 SQ. FT.FFE = 868.00>>IT/C=864. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X X X X X X XXPROPOSEDBUILDING10, 960 SQ. FT.FFE = 868. v1-7Aug23 1 CONDITIONAL USE PERMIT SITE AND BUILDING PLANS FINDINGS OF FACT & DECISION APPLICANT: 814 Services, LLC APPLICATION: Request for approval of a Conditional Use Permit and site and building plans for a day care. CITY COUNCIL MEETING: 14 August 2023 FINDINGS: Based upon review of the application and evidence received, the Otsego City Council now makes the following findings of fact: A. The legal description of the property is: Lot 1, Block 1, Parkview Retail 3rd Addition B. The property lies within the East Sewer District and is guided for Commercial land uses by the 2012 Otsego Comprehensive Plan, as amended. C. The property is zoned B-1, Business Retail Service District. D. The applicant is proposing development of a day care use; day care uses are allowed as a conditional use within the B-1 District. E. The Planning Commission and City Council must take into consideration the possible effects of the request with their judgment based upon (but not limited to) the criteria outlined in Section 11-4-2.F of the Zoning Ordinance: 1. The proposed action's consistency with the specific policies and provisions of the Otsego Comprehensive Plan. Finding: The subject site is within the area planned as the City’s primary retail, service, and office development center and the Comprehensive plan guides the property for future commercial uses. The proposed daycare use is consistent with the land uses guided by the Future Land Use Plan providing for expansion of service business in Otsego. 2. The proposed use's compatibility with present and future land uses of the area. Finding: The table below summarizes existing and planned land uses surrounding the subject site: The proposed day care is an ideal transitional use between more intensive commercial uses along Parrish Avenue (CSAH 42) to residential uses west of Parkview Avenue. v1-7Aug23 2 Direction Land Use Plan Zoning Map Existing Use North Commercial B-1 District Dunkin East Commercial PUD District SuperTarget South Commercial B-1 District Undeveloped ALDI West HD Residential R-7 District Parkview Grand 3. The proposed use's conformity with all performance standards contained within the Zoning Ordinance and other provisions of the City Code. Finding: The proposed use will comply with all requirements of the Zoning Ordinance and Engineering Manual. 4. Traffic generation of the proposed use in relation to capabilities of streets serving the property. Finding: The area is accessed via 95th Street (CSAH 39) and Parrish Avenue (CSAH 42), which are both designated as minor arterial roadways with capacity to accommodate local and regional traffic. 5. The proposed use can be accommodated by existing public services and facilities and will not overburden the City's service capacity. Finding: The subject site is within the East Sewer District established by the Comprehensive Plan where the City has planned for delivery of services for urban development and the proposed use will not overburden the City’s capacity. F. The planning report dated 13 July 2023 prepared by the City Planner, The Planning Company LLC, is incorporated herein. G. The Otsego Planning Commission conducted a public hearing at their regular meeting on 17 July 2023 to consider the application, preceded by published and mailed notice; based upon review of the application and evidence received, the public hearing was closed and the Planning Commission recommended by a 7-0 vote that the City Council approve the request based on the aforementioned findings. DECISION: Based on the foregoing information and applicable ordinances, the request is hereby APPROVED, subject to the following stipulations: 1. The site and building plan approval and the stipulations, limitations, and conditions therein shall be applied to the property in question. All written and graphic materials officially submitted to the City shall be treated as a formal agreement between the applicant and the City. Once approved, no changes, modifications or alterations shall be made to any plan detail, standard, or specifications without prior submission of a plan modification request to the Zoning Administrator for review and approval. 2. Any mechanical equipment mounted on the roof of the building shall be screened by the parapet or other measures so as not to be visible from Parrish Avenue (CSAH 42) and Parkview Avenue, subject to review and approval of the Zoning Administrator prior to issuance of a building permit. 3. The exterior finish materials for the principal building shall comply with Section 11-17-4.D.1 of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. v1-7Aug23 3 4. The construction specifications for the off-street parking area shall be subject to review and approval of the City Engineer. 5. Landscaping: a. The landscape plan shall be revised to provide additional plantings along the north lot line with a mix of shade trees, ornamental trees, shrubs, and/or grasses, subject to review and approval of the Zoning Administrator. b. Proposed evergreen trees shall be specified as being a minimum of eight feet in height. c. In-ground irrigation for the yards and planting areas within the property shall be installed as required by Section 5-2-3.C.2 of the City Code. 6. The proposed fence shall be constructed using metal rod and comply with Section 11-19-4.H of the Zoning Ordinance. 7. All signs shall comply with Chapter 37 of the Zoning Ordinance and require issuance of a sign permit approved by the Zoning Administrator. 8. The enclosure for exterior storage of waste containers shall comply with Section 11-18-4.C of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. 9. All grading, drainage, and erosion control plans shall be subject to review and approval of the City Engineer. 10. All utility plans shall be subject to review and approval of the City Engineer. 11. The property owner shall execute a Site Improvement Performance Agreement as required by Section 11-9-7 of the Zoning Ordinance, subject to review by the City Attorney and approval of the City Council. v1-7Aug23 4 ADOPTED by the Otsego City Council this 14th day of August, 2023. MOTION BY: SECONDED BY: IN FAVOR: OPPOSED: CITY OF OTSEGO __________________________________ Jessica L. Stockamp, Mayor ATTEST: __________________________________ Audra Etzel, City Clerk 1 CITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO: 2023-51 APPROVING A SITE IMPROVEMENT PERFORMANCE AGREEMENT FOR LOT 1, BLOCK 1, PARKVIEW RETAIL 3RD ADDITION WHEREAS, 814 Services, LLC (the “developer”) is proposing development of Lot 1, Block 1, Parkview Retail 3rd Addition; and WHEREAS, a Conditional Use Permit, Conditional Use Permit and Site and Building Plans for the development were approved on 14 August 2023 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: 1. The Site Improvement Performance Agreement attached hereto between the City of Otsego and 814 Services, LLC is hereby approved in form 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. 2 ADOPTED by the Otsego City Council this 14th day of August, 2023. MOTION BY: SECONDED BY: IN FAVOR: OPPOSED: CITY OF OTSEGO __________________________________ Jessica L. Stockamp, Mayor ATTEST: __________________________________ Audra Etzel, City Clerk 1 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition (reserved for recording information) SITE IMPROVEMENT PERFORMANCE AGREEMENT (LOT 1, BLOCK 1, PARKVIEW RETAIL 3RD ADDITION) THIS SITE IMPROVEMENT PERFORMANCE AGREEMENT (“Agreement”) dated ____________________, 2023, by and between the CITY OF OTSEGO, a Minnesota municipal corporation (“City”) and EIG14T O2B MN OTSEGO LLC, a Michigan 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 3rd 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 10,960 sq. ft. childcare facility with a licensed capacity of up to 159 children. The subject site is located west of Parrish Avenue (CSAH No. 42) and south of 88th Street. 2 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 2. CONDITIONS OF APPROVAL. This Agreement is a condition of City site and building 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 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 – Plans and Specifications for Public Improvements Plan D – Utility Plan Plan E – Landscape Plan Plan F – New Building Floor Plan Plan G – New Building Elevations Plan Plan H – Lighting Photometric Plan No work can occur outside of the areas indicated on the plans without modifying this Agreement or obtaining a separate grading permit. 4. IMPROVEMENTS. The Developer shall install and pay for the following: A. Sanitary Sewer System B. Water System C. Storm Sewer System D. Concrete Curb and Gutter E. Site Grading, Stormwater Treatment/Infiltration Basins, and Erosion Control F. Underground Utilities G. Setting of Iron Monuments H. Surveying and Staking I. Sidewalks J. Retaining Walls 3 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition K. Landscaping The improvements shall be installed in accordance with the City Zoning Ordinance; City standard specifications for utility and street construction; and any other ordinances including Chapter 6 of the City Code concerning erosion and sediment control. The Developer shall submit plans and specifications which have been prepared by a competent Minnesota registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer’s engineer will be able to certify that the construction work meets the approved City standards as a condition of City acceptance. In addition, the City may, at the City’s discretion and at the Developer’s expense, have one or more City inspectors and a soil engineer inspect the work on a full or part-time basis. The Developer, its contractors and subcontractors, shall follow all instructions received from the City’s inspectors. The Developer’s engineer shall provide for on-site project management. The Developer’s engineer is responsible for design changes and contract administration between the Developer and the Developer’s contractor. The Developer or its engineer shall schedule a pre-construction meeting at a mutually agreeable time at the City with all parties concerned, including the City staff, to review the program for the construction work. Within thirty (30) days after the completion of the improvements and before the security is released, the Developer shall supply the City with a complete set of reproducible “as-constructed” plans and an electronic file of the “as-constructed” plans in an AutoCAD .DWG file or a .DXF file, all prepared in accordance with City standards. In accordance with Minnesota Statutes 505.021, the final placement of iron monuments for all lot corners must be completed before the applicable security is released. The Developer’s surveyor shall also submit a written notice to the City certifying that the monuments have been installed following site grading, utility and street construction. 5. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees, and City Planning Commission members, and corporations, partnerships, and other entities in which such individuals have greater than a 25% ownership interest or in which they are an officer or director may not act as contractors or subcontractors for the public improvements identified in Paragraph 8 above. 4 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 6. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, which may include: A. Wright County for County Road Access and Work in County Rights-of-Way B. MnDot for State Highway Access C. MnDot for Work in Right-of-Way D. Minnesota Department of Health for Watermains E. MPCA NPDES Permit for Construction Activity F. MPCA for Sanitary Sewer and Hazardous Material Removal and Disposal G. DNR for Dewatering H. City of Otsego for Building Permits, Retaining Walls, Irrigation I. MDH for water permits J. MPCA for sewer extension 7. 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. 8. TIME OF PERFORMANCE. The Developer shall install all required public improvements by October 31, 2024. 9. STREETS. The Developer agrees to maintain the streets within the Plat until the base course bituminous surfacing has been accepted by the City. Should the City be required to grade the street prior to paving, the cost of such grading shall be paid by the Developer and drawn from the Developer’s letter of credit. 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. Streets indicates any work within the public right of way that touches or impacts City streets. Developer agrees to provide proper temporary traffic control signage and maintain traffic on Parrish Avenue 5 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition (CSAH No. 42) and 95th Street (CSAH No. 39) during construction of entrances and sidewalks associated with the Development. Developer shall complete all necessary street patching and curbing replacement prior to September 1, 2024. If Developer fails to complete all necessary street patching and curbing replacement prior to September 1, 2024, the City shall have the ability to draw on the security provided by the Developer to complete this work. 10. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the plat to perform all work and inspections deemed appropriate by the City in conjunction with plat development. 11. 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. The City may impose additional erosion control requirements if they would be beneficial. 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 may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer’s and City’s rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the letter of credit 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. 12. GRADING. 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 before the City approves individual building permits (except three 6 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition (3) model home permits on lots acceptable to the Building Official), 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 house pads, and all other items listed in City Code. The City will withhold issuance of building permits until the approved certified grading plan is on file with the City and all erosion control measures are in place as 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 building permits. 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 Developer shall post a security for site grading, erosion and sediment control, and wetland protection in the amount of $3,720.00 which is due upon execution of this Site Improvement Performance Agreement. 13. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, home builders, subcontractors, their agents or assigns. Prior to any construction in the plat, the Developer shall identify in writing a responsible party and schedule for erosion control, street cleaning, and street sweeping. 14. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by this Contract and final acceptance by the City, the improvements lying within public easements shall become City property without further notice or action. 15. 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 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 16. LANDSCAPING. Landscaping shall be installed in accordance with the approved landscape plan. The Developer shall post a $16,500.00 landscaping security upon execution of this Site Improvement Performance Agreement to ensure that the landscaping is installed in accordance with the approved plan. The Developer shall install an in-ground irrigation system for all yards and planting areas within Lot 1, Block 1, in compliance with Section 5-2-3.C.2 of the City Code. 17. SPECIAL PROVISIONS. The following special provisions shall apply to this Agreement: A. All grading, drainage and erosion control plans shall be subject to review and approval by the City Engineer. B. The exterior finish materials for the principal building shall comply with Section 11-17-4.D.1 of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. C. The construction specifications for the off-street parking area shall be subject to review and approval of the City Engineer. D. All signs shall comply with Section 11-37-5. C of the Zoning Ordinance and require issuance of a sign permit approved by the Zoning Administrator prior to installation. E. Architectural details of the waste container enclosure shall comply with the requirements of Section 11-18-4.c of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. F. All grading, drainage, and erosion control plans shall be subject to review and approval of the City Engineer. G. All utility plans shall be subject to review and approval of the City Engineer. H. All drainage and utility easements shall be subject to review and approval of the City Engineer. I. The Developer shall submit an exterior lighting plan including photometric measurements of light intensity and indicating the type, location, and height of all exterior light fixtures compliant with Section 10-16-10 of the Zoning Ordinance prior to approval of a building permit, subject to review and approval of the Zoning Administrator. 8 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 18. CONSTRUCTION ADMINISTRATION AND FEES FOR CITY SERVICES. 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 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 determined by the City Engineer, of proposed street, sanitary sewer, water and storm drainage construction and will be billed on hourly rates actually required for said inspection, which are estimated to be five percent (5%) of the estimated construction cost of the Improvements to be inspected. In the event of prolonged construction or unusual problems, the City will notify the Developer of anticipated cost overruns for engineering administration and observation services. Any amounts for engineering administration 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. The escrow and fee account shall also include estimated fees for Legal expenses actually incurred (with any excess funds, if any, returned to Developer as indicated in this Contract), City Administrative Fee (a flat fee due upon execution of this Agreement and shall be as stated by the Financial Summary. This 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. 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 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 19. SECURITY. To ensure compliance with the terms of this Contract, 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 Contract. The security amount shall be one hundred twenty five percent (125%) of the City Engineer’s estimated cost of all public improvements and/or private improvements required by the Subdivision Ordinance or Zoning Ordinance. The Developer shall provide an additional security equal to six and one-half (6.5%) of the estimated cost of the required public and/or private improvements for use by the City for the purpose of assuming responsibility for design, bidding, and construction administration of the required improvement in the event of a default by the Developer as provided for by this contract. 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 Contract 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 Contract 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 Contract. 10 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition This security amount shall be submitted to the City prior to execution of the Contract. All administrative and legal fees related to plan review, drafting of this Contract and any other necessary items shall be paid to the City prior to execution of the Contract. Upon completion of the work contemplated hereunder and expiration of the warranty period, the remaining security shall be promptly released to Developer. 20. SUMMARY OF SECURITY REQUIREMENTS. The amount of the security described above is calculated as follows: CONSTRUCTION COSTS: A. Streets & ADA Pedestrian Ramps $14,845.00 CONSTRUCTION SUB-TOTAL $14,845.00 OTHER COSTS: A. Site Grading, Erosion & Sediment Control & Wetland Protection $3,720.00 B. Engineering & Surveying Construction Services (6.5%) 964.93 C. Landscaping 16,500.00 OTHER COSTS SUB-TOTAL $21,184.93 TOTAL – SUBTOTAL $36,029.93 TOTAL IRREVOCABLE LETTER OF CREDIT $45,037.41 FOR SECURITY (125% OF SUBTOTAL ESCROW A. City Legal Expenses ($1,500 Minimum) $1,500.00 B. City Construction Administration and Utility & Street Inspection 10,000.00 C. GIS Data Entry Fee 250.00 ESCROW TOTAL $11,750.00 This breakdown is not a restriction on the use of the security. 21. 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 ($1,500.00 Minimum) $1,500.00 TOTAL CASH REQUIREMENTS $1,500.00 22. WARRANTY. The Developer warrants all improvements required to be constructed by it pursuant to this Contract against poor material and faulty workmanship, other than as set forth hereafter in 11 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition this Section 22, for a period of one (1) year. The warranty period for streets is two (2) years as specified in this Contract. The warranty period for underground utilities is two (2) years and shall commence following completion and acceptance by City Council. A minimum of 10% of the total security as specified above in the portion of Section 19 of this Contract shall be retained as warranty security calculated as follows. WARRANTY RETAINAGE A. Streets $1,250.00 B. Erosion & Sedimentation Control 186.00 TOTAL WARRANTY RETAINAGE FROM LETTER OF CREDIT $3,911.00 The Developer is not required to post this amount separately but rather this amount shall be retained for warranty purposes from the total security posted according to Section 20 of this Contract until warranty obligations are satisfied. 23. ACKNOWLEDGEMENT. The Developer acknowledges that approval of installation of the Improvements does not constitute a guarantee by the City of any future approvals and that the Developer performs the work on the Subject Property at its own risk. 24. 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 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 21(B), Developer shall not be obligated to indemnify or defend the City from and against claims based on any negligence or willful 12 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 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. 25. 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. 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 13 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 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. 26. 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. 27. 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: Attn: Dan Harris, 1695 Twelve Mile Rd, Suite 100, Berkley, MI 48072. 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. 14 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition CITY OF OTSEGO BY: ___________________________________________ Jessica L. Stockamp, Mayor (SEAL) AND __________________________________________ Audra Etzel, City Clerk STATE OF MINNESOTA ) )ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this ________ day of ______________, 2023, 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 15 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition DEVELOPER: EIG14T O2B MN OTSEGO LLC By: Its: STATE OF ______________ ) )ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this ________ day of ______________, 2023, by _________________, the _______________________ of EIG14T O2B MN OTSEGO LLC, a Michigan limited liability company, on behalf of said entity. ______________________________________________ NOTARY PUBLIC DRAFTED BY: CAMPBELL, KNUTSON Professional Association 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: 651-452-5000 DSK/smt 16 227519v1 Lot 1, Block 1, Parkview Retail 3rd Addition 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 ____________, 2023. _________________________ By: Its: STATE OF ______________ ) )ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this _____ day of ________________, 2023, by _____________________________________ the _____________________________________ of _______________Bank, a ____________________, on behalf of said ____________________________. ________________________________________ NOTARY PUBLIC DRAFTED BY: CAMPBELL, KNUTSON Professional Association 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: 651-452-5000 AMP/smt 17 227519v1 Lot 1, Block 1, Otsego Developments Addition [BANK LETTERHEAD] IRREVOCABLE LETTER OF CREDIT No. ___________________ Date: _________________ TO: City of Otsego City Hall 13400 90th Street NE Otsego, Minnesota 55330 Dear Sir or Madam: 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] BY: ____________________________________ Its ______________________________