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Item 4.7 Boulder Pass 4th Addition Final Plat and Development Contract Request for City Council Action DEPARTMENT INFORMATION ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Planning City Planner Licht 10 March 2025 PRESENTER(s) REVIEWED BY: ITEM #: Consent City Administrator/Finance Director Flaherty City Engineer Wagner City Attorney Kendall 4.7 – Boulder Pass 4th 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 approval of a final plat and a development contract. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes No BACKGROUND/JUSTIFICATION: M/I Homes of Minneapolis/St. Paul, LLC has submitted application to final plat Boulder Pass 4th Addition, which is located at the northwest quadrant of 70th Street (CSAH 70) and Quaday Avenue. The preliminary plat for Boulder Pass was approved by the City Council on 12 October 2009 and allowed for gravel excavation for export to bring the property to the planned grades prior to final platting. ▪ Comprehensive Plan. The Comprehensive Plan guides the subject site for Medium-to-High Density Residential Land Uses. The Comprehensive Plan, based on the preference for single family neighborhoods within Otsego, allows for development of residential land uses with less density than a townhouse or multiple family land use. The final plat is consistent with the Comprehensive Plan. ▪ Zoning. The subject site is zoned R-5 Residential Single and Two Family District. A PUD-CUP was approved with the preliminary plat establishing lot requirements and provisions for common open space within the subdivision. Single family lots are a permitted use within the R-5 District. ▪ Lot Requirements. The final plat consists of 12 single family lots accessed by a public cul-de-sac street in a configuration consistent with the preliminary plat. The proposed lots within the final plat comply with the minimum lot area and width requirements of the R-5 District and the PUD-CUP setback requirements established with the preliminary plat approval, which are shown below: Min. Lot Area Min. Lot Width Setbacks Int. Cor. Front Side Rear Bldg. Garage Corner Interior Interior Quaday Ave./ CSAH 38 9,000sf. 60ft. 90ft. 25ft. 30ft. 25ft. 10 ft. house/ 5 ft. garage/ 15 ft. Bldg. 30ft. 65ft. ▪ Quaday Avenue. Otsego Township adopted a right-of-way map, which had been an approach taken by townships to establish public rights-of-way for roads that existed by prescriptive easement. The title documents for the subject site identify the existing of right-of-way in accordance with the Otsego Township map at its previous alignment. The right-of-way overlays an outlot owned by the City for stormwater purposes and a portion of the condominium base lot for The Pointe townhouse development. The right-of-way serves no public purpose and is to be vacated. The City Council held a public hearing and adopted a resolution vacating the right-of-way in 2023. ▪ Streets. The proposed lots will be accessed by 73rd Court east of Parquet Avenue. The proposed street is to be 28 feet wide with concrete curb and gutter within a 60 foot wide right-of-way. The terminus end of the permanent cul-de-sac has a radius of 60 feet for right-of-way and 50 feet for pavement as required by the Subdivision Ordinance and Engineering Manual. The street construction plans are to be subject to review and approval of the City Engineer. ▪ Street Signs. The installation of street signs will be determined by the City Engineer. The developer will pay the City a fee for the fabrication and installation of street signs with execution of the development contract. The fee for each sign is established pursuant to the City fee schedule. ▪ Street Lighting. Street lighting will be installed by the developer within the final plat in accordance with Title 8, Chapter 8 of the City Code including at the 73rd Court and Parquet Avenue intersection and at the terminus end of the permanent cul-de-sac. The developer will pay street lighting charges upon execution of the development contract as established in accordance with the City Fee Schedule, subject to review and approval of the City Engineer. ▪ Sidewalks/Trails. There is an existing sidewalk on the east side of Parquet Avenue and a trail along the west side of Quaday Avenue near the proposed final plat. City does not require construction of sidewalks on cul-de- sac streets, so no new pedestrian ways will be constructed with this addition. ▪ Landscaping. Section 11-19-2.B.1 of the Zoning Ordinance requires the developer install two shade trees within each lot of the final plat as construction of houses on each lot progresses. The security for these trees will be collected at the time of building permit for each lot. Planting of a residential buffer yard along the rear of the lots within Lots 8 and 9, Block 1 abutting Quaday Avenue is required in accordance with Section 11-19- 3.B.3 of the Zoning Ordinance. The development contract will include a security for installation of the required buffer yard. ▪ Easements. The final plat illustrates drainage and utility easements at the perimeter of each single family lot and overlaying stormwater facilities as required by Section 10-8-12.A of the Subdivision Ordinance. All drainage and utility easements are subject to approval of the City Engineer. ▪ Grading and Drainage Plans. The developer has submitted grading and drainage plans for the proposed final plat. All grading, drainage, and utility issues are subject to review and approval of the City Engineer. ▪ Utilities. The developer has submitted utility plans for the proposed final plat. All utility plans are subject to review and approval by the City Engineer. The developer will be required to pay Utility Availability Charges for the proposed single lots at the time of final plat approval. Utility Connection Charges are to be paid when a building permit is issued for each lot in accordance with the fee schedule in effect at that time. ▪ Park Dedication. The Park System Master Plan does not identify dedication of land for public parks from the subject site. As such, park dedication requirements for the proposed final plat are to be met as a cash fee in lieu of land in accordance with the City’s current fee schedule. The park dedication fee is to be paid with execution of the development contract. ▪ Outlots. The proposed final plat includes Outlot A at the northwest corner of Lot 1, Block 1 abutting Parquet Avenue. Outlot A is to be conveyed to the homeowner’s association as permanent open space. A deed conveying Outlot A to the homeowner’s association is to be recorded concurrent with the final plat. ▪ Homeowners Association. Boulder Pass has a homeowner’s association to provide for ownership and maintenance of the common property elements platted with the initial final plat. Documents incorporating the proposed 4th Addition lots within the homeowners association are to be submitted for review and approval by the City Attorney prior to recording with the final plat. ▪ Development Contract. The City Attorney has drafted a Development Contract as required by Section 10-10-4 of the Subdivision Ordinance related to the proposed final plat to provide for completion of all public improvements, establishment of required securities, and payment of applicable fees. The Development Contract is to be adopted by resolution of the City Council concurrent with the final plat approval and executed prior to recording of the final plat. ▪ Recording. Section 10-5-3-B.8 of the Subdivision Ordinance requires recording of the final plat within 100 days of City Council approval. SUPPORTING DOCUMENTS ATTACHED: ▪ Final Plat ▪ Findings of Fact and Decision ▪ Resolution 2025-12 ▪ Development Contract POSSIBLE MOTION PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES: Motion to approve the Boulder Pass 4th Addition final plat subject to the conditions stated on the findings of fact and decision as presented and adopt Resolution 2025-12 approving a development contract. BUDGET INFORMATION FUNDING: BUDGETED: Fund 701 – Development Escrows N/A VICINITY MAPBOULDER PASS 4TH ADDITIONENGINEERINGSURVEYINGENVIRONMENTAL73RDCOURT N.E. 1 FINDINGS OF FACT AND DECISION BOULDER CREEK 4th ADDITION FINAL PLAT APPLICANT: M/I Homes of Minneapolis/St. Paul, LLC APPLICATION: Request for final plat approval of Boulder Pass 4th Addition. CITY COUNCIL MEETING: 10 March 2025 FINDINGS: Based upon review of the application and evidence received, the City Council of the City of Otsego now makes the following findings of fact: A. The legal description of the property described is Outlot I, Boulder Pass. B. The property lies within the East Sewer District and is guided for Medium-to-High Density Residential land uses by the 2023 Otsego Comprehensive Plan, as amended. C. The property is zoned R-5, Single and Two Family Residential District, which allows single family dwellings as a permitted use. D. The City Council approved application for preliminary plat approval and a PUD-CUP on 12 October 2009. E. The applicant is proposing a final plat of 12 single family lots and one outlot. F. The Request for Council Action dated 10 March 2025 prepared by the City Planner, The Planning Company LLC, is incorporated herein. G. Final plat applications are processed in accordance with Section 10-3-3 of the Subdivision Ordinance and do not require a recommendation by the Planning Commission. DECISION: Based on the foregoing information and applicable ordinances, the application is hereby APPROVED, subject to the following conditions: 1. The applicant shall execute a development agreement as drafted by the City Attorney and subject to approval of the City Council. 2. All of the lots within the final plat shall comply with the following minimum lot requirements and setbacks: 2 Min. Lot Area Min. Lot Width Setbacks Int. Cor. Front Side Rear Bldg. Garage Corner Interior Interior Quaday Ave./ CSAH 38 9,000sf. 60ft. 90ft. 25ft. 30ft. 25ft. 10 ft. house/ 5 ft. garage/ 15 ft. between bldgs. 30ft. 65ft. 3. Construction plans for all streets shall be subject to review and approval by the City Engineer. 4. Street signs shall be determined by the City Engineer and the developer shall pay a fee for the fabrication and installation of all required signs with the development contract. 5. Street lighting shall be installed within the final plat in accordance with Title 8, Chapter 8 of the City Code with payment of charges as established in accordance with the City Fee Schedule, subject to review and approval of the City Engineer. 6. A landscape buffer yard as required by Section 11-19-3.B.3 of the Zoning Ordinance shall be planted in the rear yards of Lots 8 and 9, Block 1, subject to review and approval of the Zoning Administrator. 8. All drainage and utility easements shall be subject to review and approval of the City Engineer. 9. All grading, drainage, and erosion control plans shall be subject to review and approval by the City Engineer. 10. All utility plans shall be subject to review and approval of the City Engineer. 11. The developer shall pay applicable utility availability charges upon approval of the final plat. 12. Utility connection charges shall be paid at the time a building permit is issued for each lot based on the current fee in effect at that time. 13. The developer shall satisfy park and trail dedication requirements as a cash fee in lieu of land as set forth in the development agreement. 14. Outlot A shall be deeded to the Boulder Pass Homeowners Association by warranty deed, free and clear of any and all encumbrances. 15. All homeowners association documents are subject to review and approval by the City Attorney. 16. The final plat shall be recorded within 100 days of City Council approval as required by Section 10 -5- 3.B.8 of the Subdivision Ordinance. 3 ADOPTED by the Otsego City Council this 10th day of March, 2025. 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: 2025-12 APPROVING A DEVELOPMENT CONTRACT FOR BOULDER PASS 4th ADDITION WHEREAS, MI Homes of Minneapolis/St. Paul, LLC (the “developer”) is proposing development of Boulder Pass 4th Addition; and WHEREAS, a final plat for the development was approved on 10 March 2025 by the City Council; and WHEREAS, Section 10-10-4.A of the Subdivision Ordinance requires the developer to enter into a development contract 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 Development Contract. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OTSEGO, MINNESOTA THAT: 1. The Development Contract attached hereto between the City of Otsego and MI Homes of Minneapolis/St. Paul, 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 Development Contract on behalf of the City of Otsego. ADOPTED by the Otsego City Council this 10th day of March, 2025. MOTION BY: SECONDED BY: IN FAVOR: OPPOSED: CITY OF OTSEGO __________________________________ Jessica L. Stockamp, Mayor ATTEST: __________________________________ Audra Etzel, City Clerk 1 226515v2 Boulder Pass 4th Addition (reserved for recording information) DEVELOPMENT CONTRACT (Developer Installed Improvements) BOULDER PASS 4TH ADDITION CONTRACT dated ____________________, 2025, by and between the CITY OF OTSEGO, a Minnesota municipal corporation (“City”), and M/I HOMES OF MINNEAPOLIS/ST. PAUL, LLC, a Delaware limited liability company (the “Developer”). 1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve a plat for BOULDER PASS 4th ADDITION (referred to in this Contract as the "plat"). The land is situated in the County of Wright, State of Minnesota, and is legally described as: Outlot I, Boulder Pass, Wright County, Minnesota, according to the recorded plat thereof. [Platted as Boulder Pass 4th Addition, Wright County, Minnesota.] 2. CONDITIONS OF PLAT APPROVAL. The City hereby approves the plat on condition that the Developer enter into this Contract, furnish the security required by it, and record the plat with the County Recorder or Registrar of Titles within one hundred (100) days after the City Council approves the final plat. 2 226515v2 Boulder Pass 4th Addition 3. RIGHT TO PROCEED. Within the plat or land to be platted, the Developer may not grade or otherwise disturb the earth or remove trees, unless a grading permit has been approved by the City Engineer following approval of a preliminary plat by the City Council, construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings until all the following conditions have been satisfied: 1) this contract has been fully executed by both parties and filed with the City Clerk, 2) the necessary security has been received by the City, 3) the necessary insurance for the Developer and its construction contractors has been received by the City, and 4) the plat has been filed with the Wright County Recorder or Registrar of Titles’ office. 4. PHASED DEVELOPMENT. If the plat is a phase of a multi-phased preliminary plat, the City may refuse to approve final plats of subsequent phases if the Developer has breached this Contract and the breach has not been remedied. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Park dedication charges referred to in this Contract are not being imposed on outlots, if any, in the plat that are designated in an approved preliminary plat for future subdivision into lots and blocks. Such charges will be calculated and imposed when the outlots are final platted into lots and blocks. 5. PRELIMINARY PLAT STATUS. If the plat is a phase of a multi-phased preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be void unless final platted into lots and blocks and outlots, within two (2) years after preliminary plat approval. 6. CHANGES IN OFFICIAL CONTROLS. For five (5) years from the date of this Contract, no amendments to the City’s Comprehensive Plan or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the approved plat unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City’s Comprehensive Plan, official controls, platting or dedication requirements enacted after the date of this Contract. 3 226515v2 Boulder Pass 4th Addition 7. DEVELOPMENT PLANS. The plat shall be developed in accordance with the following plans. The plans shall not be attached to this Contract. The plans may be prepared, subject to the City Engineer’s approval, after entering the Contract, but before commencement of any work in the plat. The City Engineer may approve minor amendments to Plans without City Council approval. If the plans vary from the written terms of this Contract, the written terms shall control. The plans are: Plan A - Plat Plan B - Final Grading, Drainage, and Erosion Control Plan Plan D - Plans and Specifications for Public Improvements Plan E - Street Lighting Plan Plan F - Landscape Plan 8. IMPROVEMENTS. The Developer shall install and pay for the following: A. Sanitary Sewer System B. Water System C. Storm Sewer System D. Streets E. Concrete Curb and Gutter F. Street Lights G. Site Grading, Stormwater Treatment/Infiltration Basins, and Erosion Control H. Underground Utilities I. Setting of Iron Monuments J. Surveying and Staking K. Sidewalks and Trails L. Retaining Walls M. Landscaping The improvements shall be installed in accordance with the City subdivision ordinance; City standard specifications for utility and street construction; and any other ordinances including Chapter 6 of 4 226515v2 Boulder Pass 4th Addition 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. 9. 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 twenty five percent (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. 5 226515v2 Boulder Pass 4th Addition 10. 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 11. 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. 12. TIME OF PERFORMANCE. The Developer shall install all required public improvements by November 30, 2025. 13. 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 draw from the Developer’s letter of credit. Should the City determine that snowplowing is necessary prior to street paving, the City will plow the street(s) prior to acceptance of the streets. The Developer shall hold harmless and indemnify the City from any and all liability related to this snow plowing and shall pay all costs associated with this snow plowing. Any plowing undertaken by the City shall constitute no acceptance or evidence of acceptance of the street(s) in question. The final wear course shall not be constructed until at least one construction 6 226515v2 Boulder Pass 4th Addition season after the base construction is completed and shall be delayed one more construction season if at least seventy five percent (75%) build out is not achieved. However, the final wear course shall not be delayed for a period longer than two years after the base course is paved, regardless of build out; in which case, the Developer shall provide an escrow for fog sealing the streets in the event the final wear course is placed prior to 75% build out. Upon final completion of streets and acceptance by the City as a City street rather than a private drive, the Developer shall guarantee to the City for a period of two (2) years the streets have been constructed to City standards. The warranty period shall not commence until such time as street construction is completed and the streets are accepted as City streets by the City. The two (2) year warranty period set forth above commences upon the date on which the City accepts the streets by resolution. 14. 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. 15. 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, 7 226515v2 Boulder Pass 4th Addition 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. 16. 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 (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 Developer certifies to the City that all lots with house footings placed on fill have been monitored and constructed to meet or exceed FHA/HUD 79G specifications. 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. 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. Prior to the release of the required individual lot grading and erosion control security that is submitted with the building permit, an as-built certificate of survey for single family lots must be submitted to verify that the final as-built grades and elevations of the specific lot and all building setbacks are consistent with the approved grading plan for the development, and amendments thereto as approved by the City Engineer, and that all required property monuments are in place. If the final grading, erosion control and as-built survey is not timely completed, 8 226515v2 Boulder Pass 4th Addition the City may enter the lot, perform the work, and apply the cash escrow toward the cost. 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. 17. 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. 18. 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. 19. STORM SEWER. The Developer shall pay a cash fee in the amount of $13,254.13 for the Trunk Storm Water Management Impact Fee due upon final plat approval which is calculated as follows: 4.33 Gross Acres X $3,061.00/Gross Acre = $13,254.13 20. LATERAL SANITARY SEWER. The Developer shall pay to the City the required water availability charges and sanitary sewer availability charges. The water and sewer availability charges shall be collected according to Section 8-1-6-B of City Code including 9.0 RECs per gross acre for multiple family uses and 3.5 RECs per gross acre for commercial, industrial, or institutional uses. The Developer shall post a security in the amount of $78,686.75 for construction of lateral sanitary sewer which is due upon final plat approval. The Developer shall pay a cash fee in the amount of $36,588.00 for the Sewer Availability Charge (“SAC”) at the time of plat approval which is calculated as follows: 12 REC X $3,049/REC = $36,588.00 9 226515v2 Boulder Pass 4th Addition 21. LATERAL WATERMAIN. The Developer shall post a security in the amount of $72,455.00 for the construction of lateral watermain and connection. The Developer shall pay a cash fee in the amount of $45,960.00 for the Water Availability Charge (“WAC”) at the time of plat approval which is calculated as follows: 12 REC X $3,830.00/REC = $45,960.00 22. SEWER CONNECTION CHARGE AND WATER CONNECTION CHARGE. 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. 23. 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. 24. PARK DEDICATION. The Developer shall pay a cash contribution of $47,400.00 in satisfaction of the City’s park dedication requirements. The park fee in lieu of land dedication was calculated as follows: 12 Units X $3,950 /Unit = $47,400.00 25. WETLAND, STREET, AND TRAFFIC CONTROL SIGNS. The Developer shall pay a cash fee to the City in the amount of $250.00 for installation of traffic control signs. The fee is calculated as follows: one (1) traffic sign at $250.00 per street sign. 26. STREET LIGHT OPERATION COSTS. The Developer shall be responsible for the cost of street light installation consistent with a street lighting plan approved by the City. The Developer shall pay to the City a cash fee in the amount of $500.00. The fee is calculated as follows: one (1) street light at $500.00 per street light. 27. LANDSCAPING. The Developer or lot purchaser shall plant at least two (2) trees on every lot in the plat, one of which must be planted in the front yard. Trees that are chosen by the Developer or 10 226515v2 Boulder Pass 4th Addition property owner cannot cause a public nuisance, such as cotton producing trees, or trees that may become a public hazard due to insect infestation or weak bark. The minimum deciduous tree size shall be two and one-half (2½) inches caliper, balled and burlapped. Evergreen trees must be at least eight feet (8’) tall. The trees may not be planted in the right-of-way. The Developer or lot purchaser shall sod the front yard, boulevard, and side yards to the rear of the structure on every lot. Weather permitting, the trees, sod, and seed shall be planted within sixty (60) days after a home has received a certificate of occupancy. Before a building permit is issued, a cash escrow per each lot in the plat shall be furnished the City in accordance with the City’s current fee schedule to guarantee compliance with the landscaping requirements. If the landscaping is not completed in a timely manner, the City may enter the lot, perform the work, and apply the cash escrow toward the cost. Upon satisfactory completion of the landscaping 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. All trees shall be warranted to be alive, of good quality, and disease free for twelve (12) months after planting. Any replacements shall be warranted for twelve (12) months from the time of planting. The Developer or property owner is responsible for contacting the City when all the landscaping has been installed to set up an inspection. Fifty percent (50%) of the security will be released when all the landscaping has been installed and inspected by City staff and the remaining fifty percent (50%) will be released one year after the landscaping inspection and any warranty work has been completed. The Developer shall provide a landscape buffer yard in the rear yards of Lots 8 and 9, Block 1, as required by Section 11-19-3.B.3 of the Zoning Ordinance, subject to review and approval of the Zoning Administrator. Landscaping shall be installed in accordance with the approved landscape plan. 28. SPECIAL PROVISIONS. The following special provisions shall apply to plat development: A. Implementation of the conditions listed in the Findings of Fact approved by the City Council on March 10, 2025. B. Construction plans for all streets shall be subject to review and approval by the City Engineer. 11 226515v2 Boulder Pass 4th Addition C. The Developer shall convey Outlot A to the Boulder Pass Homeowners Association by warranty deed, free and clear of all encumbrances. D. Homeowners Association documents incorporating all of the lots and blocks within Boulder Pass 4th Addition are subject to review and approval by the City Attorney. E. Street lighting shall be installed within the final plat in accordance with Title 8, Chapter 8 of the City Code with payment of charges as established in accordance with the City Fee Schedule, subject to review and approval of the City Engineer. F. All drainage and utility easements shall be subject to review and approval of the City Engineer. G. All grading, drainage, and erosion control plans shall be subject to review and approval by the City Engineer. H. All utility plans shall be subject to review and approval of the City Engineer. I. The Developer shall pay applicable utility availability charges at the time of final plat approval. J. The Developer shall pay utility connection charges at the time a building permit is issued for each lot based on the current fee in effect at that time. K. The final plat shall be recorded within 100 days of City Council approval as required by Section 10-5-3.B.8 of the Subdivision Ordinance. L. Prior to City Council approval of the final plat, the Developer shall furnish a boundary survey of the proposed property to be platted with all property corner monumentation in place and marked with lath and a flag. Any encroachments on or adjacent to the property shall be noted on the survey. The Developer's land surveyor certifies that all irons have been set following site grading and utility and street construction. In addition, the certificate of survey must also include a certification that all irons for a specific lot have either been found or set prior to the issuance of a building permit for that lot. M. The Developer shall pay an escrow for the preparation of record construction drawings and City base map updating. This fee is $100.00 per acre for a total charge of $433.00. 12 226515v2 Boulder Pass 4th Addition N. The Developer is required to submit the final plat in electronic format. The electronic format shall be either AutoCAD.DWG file or a .DXF file. All construction record drawings (e.g., grading, utilities, streets) shall be in electronic format in accordance with standard City specifications. 29. 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), Trunk Water and Sewer Access Fees (a flat fee due upon execution of this Agreement), Park and Trail Dedication Fees (a flat fee due upon execution of this Agreement), and shall be as stated by the Financial Summary. 13 226515v2 Boulder Pass 4th Addition 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. 30. 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 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 14 226515v2 Boulder Pass 4th Addition 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 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. 31. SUMMARY OF SECURITY REQUIREMENTS. The amount of the security described above is calculated as follows: CONSTRUCTION COSTS: A. Lateral Sanitary Sewer $78,686.75 B. Lateral Watermain 72,455.00 C. Streets 98,016.55 CONSTRUCTION SUB-TOTAL $249,158.30 OTHER COSTS: A. Site Grading, Erosion & Sediment Control & Wetland Protection 12,990.00 B. Engineering & Surveying Construction Services (6.5%) 16,195.29 OTHER COSTS SUB-TOTAL $29,185.29 TOTAL – SUBTOTAL $278,343.59 TOTAL IRREVOCABLE LETTER OF CREDIT $347,929.49 FOR SECURITY (125% OF SUBTOTAL 15 226515v2 Boulder Pass 4th Addition ESCROW A. City Legal Expenses (Est. 1.0% of $249,158.30) $2,491.58 B. City Construction Observation (Est. 8.0% of $249,158.30) 19,932.66 C. GIS Data Entry Fee 433.00 ESCROW TOTAL $22,857.24 This breakdown is not a restriction on the use of the security. 32. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Contract which must be furnished to the City prior to the City Council signing the final plat: A. City Administrative (Est. 1.0% of $249,158.30) $2,491.58 B. Trunk Sewer Access Fee (SAC) 36,588.00 C. Trunk Water (WAC) 45,960.00 D. Trunk Storm Water Management Impact Fee 13,254.13 E. Park And Trail Dedication 47,400.00 F. Wetland, Street &Traffic Control Signs 250.00 G. Street Light Operating Fee 500.00 TOTAL CASH REQUIREMENTS $146,443.71 33. 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 33, 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 31 of this Contract shall be retained as warranty security calculated as follows. DEVELOPMENT WARRANTY LETTER OF CREDIT A. Sanitary Sewer $11,803.01 B. Watermain 10,868.25 C. Streets 8,000.00 D. Erosion & Sedimentation Control 3,000.00 16 226515v2 Boulder Pass 4th Addition TOTAL WARRANTY LETTER OF CREDIT $33,671.26 34. RESPONSIBILITY FOR COSTS. A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the development of the plat, including but not limited to Soil and Water Conservation District charges, legal, planning, engineering and construction observation inspection expenses incurred in connection with approval and acceptance of the plat, the preparation of this Contract, review of construction plans and documents, and all costs and expenses incurred by the City in monitoring and inspecting development of the plat. 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 plat approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including engineering and attorneys' fees. D. The Developer shall pay, or cause to be paid when due, and in any event before any penalty is attached, all special assessments referred to in this Contract. This is a personal obligation of the Developer and shall continue in full force and effect even if the Developer sells one or more lots, the entire plat, or any part of it. E. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may halt plat development and construction until the bills are paid in full. Bills not paid within thirty (30) days shall accrue interest at the rate of eighteen percent (18%) per year. Additionally, the Developer shall pay in full all bills submitted to it by the City prior to any reductions in the security for the development. 17 226515v2 Boulder Pass 4th Addition F. In addition to the charges and special assessments referred to herein, other charges and special assessments may be imposed such as but not limited to sewer availability charges ("SAC"), City water connection charges, City sewer connection charges, and building permit fees. 35. 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 forty-eight (48) hours in advance. This Contract 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 land. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part. 36. MISCELLANEOUS. A. The Developer represents to the City that the plat complies with all city, county, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Contract. C. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits, including lots sold to third parties. D. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Contract. E. Grading, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of any building permits. 18 226515v2 Boulder Pass 4th Addition F. If building permits are issued prior to the acceptance of public improvements, the Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, material men, employees, agents, or third parties. No sewer and water connections or inspections may be conducted and no one may occupy a building for which a building permit is issued on either a temporary or permanent basis until the streets needed for access have been paved with a bituminous surface and the utilities are accepted by the City Engineer. G. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. 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 Contract shall not be a waiver or release. H. This Contract shall run with the land and may be recorded against the title to the property. In the event this Contract is recorded, upon request by Developer, the City covenants to provide a recordable Certificate of Completion within a reasonable period of time following the request, upon the completion of the work and responsibilities required herein, payment of all costs and fees required and compliance with all terms of the Contract. A release of this Contract may be provided in the same manner and subject to the same conditions as a Certificate of Completion provided there are no outstanding or ongoing obligations of Developer under the terms of this Contract. The Developer covenants with the City, its successors and assigns, that the Developer is well seized in fee title of the property being final platted and/or has obtained consents to this Contract, in the form attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the property being final platted; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. I. Insurance. Prior to execution of the final plat, Developer and its general contractor shall furnish to the City a certificate of insurance showing proof of the required insurance required 19 226515v2 Boulder Pass 4th Addition under this Paragraph. Developer and its general contractor shall take out and maintain or cause to be taken out and maintained until six (6) months after the City has finally accepted the public improvements, such insurance as shall protect Developer and its general contractor and the City for work covered by the Contract including workers’ compensation claims and property damage, bodily and personal injury which may arise from operations under this Contract, whether such operations are by Developer and its general contractor or anyone directly or indirectly employed by either of them. The minimum amounts of insurance shall be as follows: Commercial General Liability (or in combination with an umbrella policy) $2,000,000 Each Occurrence $2,000,000 Products/Completed Operations Aggregate $2,000,000 Annual Aggregate The following coverages shall be included: Premises and Operations Bodily Injury and Property Damage Personal and Advertising Injury Blanket Contractual Liability Products and Completed Operations Liability Automobile Liability $2,000,000 Combined Single Limit – Bodily Injury & Property Damage Including Owned, Hired & Non-Owned Automobiles Workers Compensation Workers’ Compensation insurance in accordance with the statutory requirements of the State of Minnesota, including Employer’s Liability with minimum limits are as follows: • $500,000 – Bodily Injury by Disease per employee • $500,000 – Bodily Injury by Disease aggregate • $500,000 – Bodily Injury by Accident The Developer’s and general contractor’s insurance must be “Primary and Non-Contributory”. All insurance policies (or riders) required by this Contract shall be (i) taken out by and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State of Minnesota, (ii) shall name the City, its employees and agents as additional insureds (CGL and umbrella only) by endorsement which shall be filed with the City and (iii) shall identify the name of the plat. A copy of the endorsement must be submitted with the certificate of insurance. 20 226515v2 Boulder Pass 4th Addition Developer’s and general contractor’s policies and Certificate of Insurance shall contain a provision that coverage afforded under the policies shall not be cancelled without at least thirty (30) days’ advanced written notice to the City, or ten (10) days’ notice for non-payment of premium. An Umbrella or Excess Liability insurance policy may be used to supplement Developer’s or general contractor’s policy limits on a follow-form basis to satisfy the full policy limits required by this Contract. J. Indemnification. To the fullest extent permitted by law, Developer agrees to defend, indemnify and hold harmless the City, and its employees, officials, and agents from and against all claims, actions, damages, losses and expenses, including reasonable attorney fees, arising out of Developer’s negligence or its performance or failure to perform its obligations under this Contract. Developer’s indemnification obligation shall apply to Developer’s general contractor, subcontractor(s), or anyone directly or indirectly employed or hired by Developer, or anyone for whose acts Developer may be liable. Developer agrees this indemnity obligation shall survive the completion or termination of this Contract. K. 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. L. The Developer may not assign this Contract without the written permission of the City Council. The Developer's obligation hereunder shall continue in full force and effect even if the Developer sells one or more lots, the entire plat, or any part of it, until the City’s issuance of a Certificate of Completion and Release. 21 226515v2 Boulder Pass 4th Addition M. Retaining walls over four feet in height shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the Building Official evidencing that the retaining wall was constructed in accordance with the approved plans and specifications. All retaining walls identified on the development plans and by special conditions referred to in this Contract shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. All retaining walls must comply with the City’s engineering manual and the City’s zoning ordinance. N. Should the Developer convey any lot or lots in the Development to a third party, the City and the owner of that lot or those lots may amend this Development Contract or other city approvals or agreements for development or use of those lots without the approval or consent of the Developer or other lot owners in the Development. Private agreements between the owners of lots within the Development for shared service or access and related matters necessary for the efficient use of the Development shall be the responsibility of the lot owners and shall not bind or restrict City authority to approve applications from any lot owner in the Development. 37. 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: 5354 Parkdale Dr. #100, St. Louis Park, MN 55416. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Otsego City Hall, 13400 90th Street NE, Otsego, Minnesota 55330. [The remainder of this page has been intentionally left blank. Signature pages follow.] 22 226515v2 Boulder Pass 4th 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 ______________, 2025, 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 23 226515v2 Boulder Pass 4th Addition DEVELOPER: M/I HOMES OF MINNEAPOLIS/ST. PAUL, LLC BY: ___________________________________________ Gary M. White Its President STATE OF MINNESOTA ) )ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before me this ________ day of ______________, 2025, by Gary M. White, the President of M/I HOMES OF MINNEAPOLIS/ST.PAUL, LLC, a Delaware limited liability company, on behalf of said entity. ______________________________________________ NOTARY PUBLIC DRAFTED BY: CAMPBELL, KNUTSON Professional Association Grand Oak Office Center I 860 Blue Gentian Road, Suite 290 Eagan, MN 55121 Telephone: 651-452-5000 DSK/smt 24 226515v2 Boulder Pass 4th 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. DEMAND(S) FOR PAYMENT MAY ALSO BE MADE BY FACSIMILE TRANSMISSION TO ________ OR SUCH OTHER FAX NUMBER AS (NAME OF ISSUING BANK) MAY IDENTIFY IN A WRITTEN NOTICE TO YOU. TO THE EXTENT PRESENTATION IS MADE BY FACSIMILE TRANSMISSION YOU MUST PROVIDE TELEPHONE NOTIFICATION THEREOF TO (NAME OF ISSUING BANK) AT TELEPHONE NUMBER: _________ PRIOR TO OR SIMULTANEOUSLY WITH THE SENDING OF SUCH FACSIMILE TRANSMISSION. HOWEVER, THE ABSENCE OF SUCH TELEPHONE CONFIRMATION AS DESCRIBED ABOVE DOES NOT AFFECT OUR OBLIGATION TO HONOR SUCH DRAWING, IF SUCH DRAWING IS OTHERWISE IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS IRREVOCABLE LETTER OF CREDIT. IF DEMAND FOR PAYMENT IS MADE BY FAX, PRESENTATION OF ORIGINAL DOCUMENTS IS NOT REQUIRED. OR DEMAND(S) FOR PAYMENT TO BE MADE VIA EMAIL TO _______________. PRESENTATION OF ORIGINAL DOCUMENTS IS NOT REQUIRED. 25 226515v2 Boulder Pass 4th Addition 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 ______________________________