Loading...
RES 2023-56 Approving a Site Improvement Performance Agreement for Lot 2, Block 1 Parkview Retail Third AdditionCITY OF OTSEGO COUNTY OF WRIGHT STATE OF MINNESOTA RESOLUTION NO: 2023-30 APPROVING A SITE IMPROVEMENT PERFORMANCE AGREEMENT FOR LOT 2, BLOCK 1 PARKVIEW RETAIL THIRD ADDITION WHEREAS, Java Otsego Retail, LLC (the "developer") is proposing development of Lot 2, Blocl< 1, Parkview Retail Third Addition; and WHEREAS, a Conditional Use Permit and Site and Building Plans for the development were approved on 11 September 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 THAT: 1. The Site Improvement Performance Agreement attached hereto between the City of Otsego and Java Otsego Retail, LLC is hereby approved in form subject to modification of fees, charges, and securities as approved by City staff. 2. The Mayor and City Clerl<are hereby authorized to execute the Site Improvement Performance Agreement on behalf of the City of Otsego. ADOPTED by the City Council of the City of Otsego this 11th day of September, 2023. MOTION BY: Moores SECONDED BY: Goede IN FAVOR: Stockamp, Dahl, Dunlap, Goede, and Moores OPPOSED: none CITY OF OTSEGO Jessica L. Stockamp, Mayor ATTEST: a Audra Etzel, City Clerk (reserved for recording inforrnatiorr) SITE IMPROVEMENT PERFORMANCE AGREEMENT (LOT 2, BLOCK], PARKVIEW RETAIL 3RD ADDITION) MONSOON iiiiiiiiiiiiiiiiii OWN THIS SITE IMPROVEMENT PERFORMANCE AGREEMENT ("Agreement") dated , 20231 by and between the CITY OF OTSEGO, a Minnesota municipal corporation and JAVA OTSEGO RETAIL LLC, a Minnesota 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 2, Block 1, Parkview Retail 311 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 6,062 square foot multiple tenant building, which includes a drive through window and lane for a bank automated teller machine. The development requires an application for a Conditional Use Permit for a convenience food restaurant, site and building plan review, and vacation of an existing drainage and utility easement. L 227674v3 Lot 2, Block 1, Parkview Retail Third Addition 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 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 2 227674v3 Lot 2, Block 1, Parkview Retail Third 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 apre-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 259/o 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. 3 2276740 Lot 2, Block 1, Parkview Retail Third Addition 6. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain A 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 September 1, 2024. 9. STREETS. The Developer agrees to maintain the streets within the Subject Property 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. 227674v3 Lot 2, Block 1, Parkview Retail Third Addition 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 Parkview Avenue NE 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 Subject Property to perform all work and inspections deemed appropriate by the City in conjunction with site plan 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 site plan is in full compliance with the approved erosion control plan. 12. GRADING. The Subject Property 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. s 227674v3 Lot 2, Block 1, Parkview Retail Third Additio�� Within thirty (30) days after completion of the grading, the Developer shall provide the City with an "as - constructed" grading plan certified by a registered land surveyor or engineer that all storm water treatmennfiltration 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 all other items listed in City Code. Before a building permit is issued, a cash escrow shall be furnished to the City in accordance with the City's current fee schedule to guarantee compliance with the erosion control and grading requirements and the submittal of an as -built certificate of survey. Upon satisfactory completion of the grading, erosion control and as -built survey, the escrow funds, without interest, less any draw made by the City, shall be returned to the person who deposited the funds with the City. 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 $3,870.00 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. STORM SEWER. The Developer shall post a security for storm sewer in the amount of $34,513.60 which is due upon execution of this Site Improvement Performance Agreement. 6 2276740 Lot 2, Block 1, Parkview Retail Third Addition lox SANI IARy SEWER. The Developer shall post a security for lateral sanitary sewer in the amount of $10,131.00 which is due upon execution of this Site Improvement Performance Agreement. The Developer shall pay to the City the required sanitary sewer connection charges prior to issuance of a building permit based on the fee schedule in effect at the time of application for the building permit. 17. WATERMAINa The Developer shall pay to the City required water and sewer connection charges. The water and sewer connection charges shall be collected per Section 8-1-6-C of City Code for all uses and must be paid prior to the issuance of a building permit based on the fee schedule in effect at the time of application for the building permit. The Developer shall post a security in the amount of $52,537.00 for the installation of lateral watermain and connection. 18. 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. 19. LANDSCAPING. Landscaping shall be installed in accordance with the approved landscape plan. The Developer shall post a $19,660.00 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 2, Block 1, in compliance with Section 5-2-3.C.2 of the City Code. 20. SPECIAL PROVISIONS. The following special provisions shall apply to this Agreement: A. 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 Developer 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. 7 227674v3 Lot 2, Block 1, Parkview Retail Third Addition B. 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 No. 42) and Parkview Avenue, subject to review and approval of the Zoning Administrator prior to issuance of a building permit. C. The number of off-street parking stalls required shall be subject to review and approval of the Zoning Administrator based on occupancy and floor area for individual tenants in accordance with Section 11-21-8 of the Zoning Ordinance. D. The construction specifications for the off-street parking areas shall be subject to review and approval of the City Engineer. E. All grading, drainage and erosion control plans shall be subject to review and approval by the City Engineer. F. All utility plans shall be subject to review and approval of the City Engineer. G. All drainage and utility easements shall be subject to review and approval of the City Engineer. H. The Developer shall pay Utility Connection Charges at the time a building permit is issued for buildout of the tenant spaces based on the user and fee schedule then in effect. Construction specifications for the off-street parking are subject to review and approval of the City Engineer. J. 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 1Owl 6-10 of the Zoning Ordinance prior to approval of a building permit, subject to review and approval of the Zoning Administrator. K. 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, L. 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. E9 227674v3 Lot 2, Block 1, Parkview Retail Third Addition 21. 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 projectI 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, ifreturned to Developer as indicated in this Contract) and 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, 9 227674v3 Lot 2, Block 1, Parkview Retail Third Addition 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. 22. 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 percent (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 Mn 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 10 227674v3 Lot 2, Block 1, Parkview Retail Third Addition shall be reduced from time to time in proportion to the work completed, but not below ten percent (10%), 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. 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. 23. SUMMARY OF SECURITY REQUIREMENTS. The amount of the security described above is calculated as follows: CONSTRUCTION COSTS: A. Sanitary Sewer -Lateral B. Watermain —Lateral C. Streets A. ADA Pedestrian Ramps D. Storm Sewer CONSTRUCTION SUB -TOTAL OTHER COSTS: $10,131.00 52,537.00 7,500.00 34 513.60 $1041681.60 A. Site Grading, Erosion &Sediment Control &Wetland Protection $3,870.00 B. Engineering & Surveying Construction Services (6.5%) 61804,30 C. Landscaping 191660000 OTHER COSTS SUB -TOTAL TOTAL —SUBTOTAL TOTAL IRREVOCABLE LETTER OF CREDIT FOR SECURITY (125% OF SUBTOTAL ESCROW A. City Legal Expenses ($1,500 Minimum)) $30,334.30 $135,015.90 $1,500.00 B. City Construction Administration and Utility &Street Inspection 10,000.00 C. GIS Data Entry 250.00 ESCROW TOTAL $111750.00 11 227674v3 Lot 2, Block 1, Parkview Retail Third Addition This breakdown is not a restriction on the use of the security. 24. 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 25. 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 this Section 25, 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 ten percent (10%) of the total security as specified above in the portion of Section 23 of this Contract shall be retained as warranty security calculated as follows. WARRANTY RETAINAGE A. Sanitary Sewer B. Watermain C. Storm Sewer D. Streets E. Erosion & Sedimentation Control F. Landscaping TOTAL WARRANTY RETAINAGE FROM LETTER OF CREDIT $1,519.65 7,880055 5,177004 1,250000 193.50 2,475.00 $18,495.74 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. 26. ACKNOWLEDGEMENT. The Developer acknowledges that approval of installation of the Improvements does not constitute a guarantee by the City of any future zoning or subdivision approvals and that the Developer performs the work on the Subject Property at its own risk. 12 227674v3 Lot 2, Block 1, Parkview Retail Third Addition 27. 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 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 (80/6) per year. 28. 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 13 227674v3 Lot 2, Block 1, Parkview Retail Third Addition and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. D. This Agreement shall run with the land and may be recorded against the title to the Subject Property. The Developer covenants with the City, its successors and assigns, that the Developer has fee title to the Subject Property and/or has obtained consents to this Agreement, in the form attached hereto, from all parties who have an interest in the Subject Property; that there are no unrecorded interests in the Subject Property; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. E. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. F. Breach of the terms of this Agreement by the Developer, including nonpayment of billings from the City, shall be grounds for denial of building permits and certificates of occupancy, and the halting of all work on the Subject Property. G. The Developer represents to the City that the development complies with all City, county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the development does not comply, the City may, at its option, refuse to allow construction or development work in the development until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance, 29. 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 14 227674v3 Lot 2, Block 1, Parkview Retail Third Addition 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. 30. 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 fo,Jlowing address: Attn: Mark Krogh, 879 Scheffer Avenue St. Paul, MN. 55102. 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. [Remainder of page is intentionally left blank. Signature pages follow.] IS 22767�iv3 Lot 2, Block 1, Parkview Retail Third Addition CITY OF OTSEGO BY: (SEAL) STATE OF MINNESOTA ) )ss. COUNTY OF WRIGHT ) Jessica L. Stockamp, Mayor Audra Etzel, City Clerk The foregoing instrument was acknowledged before me this day of , 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 16 227674v3 Lot 2, Block 1, Parkview Retail Third Addition STATE OF MINNESOTA )ss. COUNTY OF DEVELOPER: JAVA OTSEGO RETAIL LLC By: Its: The foregoing instrument was acknowledged before me this day of , 2023, by the of JAVA OTSEGO RETAIL LLC, a Minnesota limited liability company, on behalf of said entity. DRAFTED BY: CAMPBELL, KNUTSON Professional Association 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 Telephone: 651452-5000 DSK/smt NOTARY PUBLIC 17 227674v3 Lot 2, Block 1, Parkview Retail Third Addition MORTGAGE HOLDER CONSENT TO SITE IMPROVEMENT PERFORMANCE AGREEMENT FIRST BANK &TRUST, a Minnesota banking corporation, which holds a Mortgage executed by Java Otsego Retail LLC, a Minnesota limited liability company, dated June 9, 2023, filed June 16, 2023 with the office of the County Recorder, Wright County, Minnesota, as Document Number All 532631, in the original amount of $292,500,00, on all or part of the subject property, the development of which is governed by the foregoing Site Improvement Performance Agreement, agrees that the Site Improvement Performance Agreement shall remain in full force and effect even if it forecloses on its mortgage. Dated this day of , 2023. FIRST BANK &TRUST By: STATE OF MINNESOTA [print name] Its [title] )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 120231 by the of First Bank & Trust, a Minnesota banking corporation, on behalf of said entity. NOTARY PUBLIC DRAFTED BY: CAMPBELL KNUTSON Professional Association Grand Oak Office Center 1 860 Blue Gentian Road, Suite 290 Eagan, Minnesota 55121 651452-5000 DSK/smt 227674v3 Lot 1, Block t, Otsego Developments Addition [BANK LETTERHEAD] IRREVOCABLE LETTER OF CREDIT TO: City of Otsego City Hall 13400 90t" Street NE Otsego, Minnesota 55330 Dear Sir or Madam: No. _ Date: We hereby issue, for the account of (Name of Developer) and in your favor, our Irrevocable Letter of Credit in the amount of $ available to you by your draft drawn on sight on the undersigned bank. The draft must: a) Bear the clause, "Drawn under Letter of Credit No. dated 2 , of (Name of Bank) "; b) Be signed by the City Administrator or Finance Director of the City of Otsego. c) Be presented for payment at (Address of Bank) , on or before 4:00 p.m. on November 30, 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 incompliance with this Letter of Credit shall be duly honored upon presentation. [NAME OF BANK] BY: Its 19 227674v1 Lot 2, Block 1, Parkview Retail 3rd Addition