HomeMy WebLinkAboutResolutions - No. 2019-66RESOLUTION NO. 2019-66
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING
THE CITY MANAGER TO EXECUTE AN IMPROVEMENT
AGREEMENT FOR GATEWAY NORTH SUBDIVISION,
UNIT NO. 1, TRACT NO. 3940
WHEREAS, Gateway North Subdivision, Unit No. 1, is located west of
Lower Sacramento Road and south of Lodi Shopping Center; and
WHEREAS, Unit No. 1 consists of 98 single-family residential lots; and
WHEREAS, the developer, Blossom Land Company (Developer), will present the final
map for approval at a later date; and
WHEREAS, the project includes the installation of all interior subdivision public
improvements and street improvements on Lower Sacramento Road from the southerly
Lodi Shopping Center Driveway to its southerly boundary of the single-family home
development (270 linear feet); and
WHEREAS, Developer has furnished the City with improvement plans, necessary
agreements, guarantees, insurance certificates, and the required fees for the proposed
subdivision; and
WHEREAS, Development Impact Fees will be collected as part of the building permit
process prior to issuing a certificate of occupancy for each single-family residence, in
accordance with Lodi Municipal Code Section 15.64.040.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
authorize the City Manager to execute the Improvement Agreement for the Public
Improvements of Gateway North, Unit No. 1, Tract No. 3940, attached hereto as Exhibit A, and
made a part hereof.
Dated: April 17, 2019
I hereby certify that Resolution No. 2019-66 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held April 17, 2019, by the following vote:
AYES: COUNCIL MEMBERS — Johnson, Kuehne, Mounce, Nakanishi, and
Mayor Chandler
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
2019-66
WHEN RECORDED, RETURN TO:
City Clerk
City of Lodi
221 West Pine Street
Lodi, CA 95240
IMPROVEMENT AGREEMENT
for the
PUBLIC IMPROVEMENTS
of
GATEWAY NORTH, UNIT NO.1
TRACT NO. 3940
EY Y i iBITA1
THIS AGREEMENT is made and entered into by and between the CITY OF LODI, a California
municipal corporation, hereinafter referred to as "City", and Blossom Land Company, a California
corporation, hereinafter referred to as "Developer".
RECITALS:
Developer is the developer of that certain real property situated in the City of Lodi, County of San
Joaquin, commonly known as Parcels 2 and 3 (A.P.Ns.: 058-03-016 AND 058-03-040) and more
particularly described in Exhibit A, attached hereto and incorporated herein. Developer will
present to City for approval the final subdivision maps based on the Tentative Map approved by
the Lodi Planning Commission on December 13, 2017, pursuant to Planning Commission
Resolution No. 17-20, entitled "Gateway North". Subsequent to the issuance of the subdivision
map in favor of FCB Homes, title to the property was transferred to Blossom Land Company, a
California corporation. Developer will present a final subdivision map titled "Gateway North, Unit
No. 1" for a portion of the Gateway North subdivision, hereinafter called "Map," the Map will be
filed with the Public Works Director for presentation to the City Council for approval at a later date
and is therefore not attached;
Developer has requested approval of the improvement plans (Plan Set D181) prior to the final
approval of the Map. The public improvement plans include all streets, highways or public ways,
and public utilities and facilities which are a part of, or appurtenant to, the Gateway North, Unit No.
1 Subdivision, hereinafter called "Project," all in accordance with, and as required by, the plans
and specifications for all or any of said improvements in, appurtenant to, or outside the limits of
Project, which plans and specifications are now on file in the office of and endorsed with the
approval of the Public Works Director or his designee;
Developer acknowledges that a subsequent improvement agreement will be required for the
Lower Sacramento Road improvements prior to final approval of the Map;
City Council will adopt a resolution to approve the Map and accept the dedications therein offered
at a later date on the condition that Developer will first enter into and execute this Agreement with
City and meet the requirements of the Resolution; and
This Agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of
California and Titles 15 and 17 of the Lodi Municipal Code ("LMC").
NOW THEREFORE, for and in consideration of the acceptance of the dedications offered, and in
order to insure satisfactory performance by Developer of Developer's obligations under State law
and City Code, the parties agree as follows:
1. Performance of Work by Developer
Developer will do and perform, or cause to be done and performed at Developer's own
expense, in a good and workmanlike manner, and furnish all required materials, all under
the direction and to the satisfaction of City's Public Works Director, all of the work and
improvements as shown on the approved improvement plans for the Project, Plan Set
D181, which is on file in the Public Works Department.
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The Developer shall also perform or cause to be performed the following items which are
not shown on the improvement plans:
A. Street Tight installation and connection to City system;
B. Street frontage improvements on Lower Sacramento Road (by separate
agreement);
C. Natural gas line installation;
D. Telephone line installation;
E. Electrical system;
F. Cable television system.
2. Development Changes
Developer shall also perform all work and furnish all materials necessary to comply with
any changes required by the Public Works Director, which, in his opinion, are necessary
or required to complete the work in conformance with City Standards or are the result of
changed conditions.
3. Performance of Work by City
Prior to the approval of the final map by the City, it is agreed that the Developer shall
deposit with the City the amount of money shown as the "Developer Cost" on the Billing
Schedule, attached hereto as Exhibit B, attached hereto and incorporated herein.
From payments made under the Billing Schedule, Developer elects to have the City
perform or install or cause the installation of the following items:
A. Street seal coat;
B. Televideo inspection of the public sewer and storm drain lines. The fee shown on
the Billing Schedule is based on the linear footage of sewer and storm drain pipe,
including laterals, shown on the improvement plans. The fee will be adjusted, if
necessary, when the televideo inspection is complete. Any additional fee must be
paid prior to Project acceptance;
C. Storm Water Permit Compliance Inspections. The fee shown on the Billing
Schedule is based on one (1) inspection per month for construction activities
covering twelve months period. The fee will be adjusted, if necessary, when the
improvements are complete and ready for acceptance by the City. Any additional
fee must be paid prior to Project acceptance.
Developer shall also pay all additional costs for work performed by City deemed by the
Public Works Director necessary to complete the work under this Agreement in
conformance with City Standards.
Unless Developer pays all costs allocated to Developer in RA -18-01, in accordance with
LMC Section 17.62.060, developer shall be responsible for purchasing the real property
and easement underlying the City's pipeline easement through a portion of the property,
as shown on Exhibit A, upon final map approval from the City of Lodi at a price set by a
mutually agreed appraiser. The vacation of this property shall be in accordance with the
appropriate provisions of the Streets and Highways Code of the State of California.
4. Development Impact Mitigation Fees
Development Impact Mitigation Fees for water, wastewater capacity, street
improvements, storm drain, police, fire, parks and recreation, general City facilities, and
art in public places are required for this Project. Payment of the Development Impact
Mitigation Fees shall be collected prior to issuance of the Certificate of Occupancy for
each dwelling. The amounts shown in this Agreement for the Development Impact
Mitigation Fees are those in effect at the time of execution of this Agreement. In
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conformance with LMC Section 15.64.050, the fees are automatically adjusted on January
1st of each year. Fees may also be adjusted at other times by separate City Council
action. The actual fees to be paid will be those in effect at the time of payment. This
Agreement shall in no way limit City's ability to charge Developer the fees in effect at the
time Developer pays the fees.
The Gateway North Unit No. 1 Subdivision (Tract No. 3940) is located in Zone 2 of the
City's Storm Drain Impact Fee Program. In accordance with Resolution 2013-184, the
appropriate storm drain impact fee shall be collected for each development in Zone 2 that
does not construct its fair share of permanent storm drain improvements. This
development has not constructed its fair share of storm drain improvements and is
subject to the actual storm drain fee in effect at the time of payment unless developer
pays all costs allocated to Developer in RA -18-01 in accordance with LMC Section
17.62.060.
5. Reimbursement to Others
Developer acknowledges that the City Council adopted RA 18-01 at a public hearing held
on April 17, 2019 (Resolution No. 2019-66). Developer agrees to pay all costs allocated
to Developer in RA 18-01 in accordance with LMC §17.62.060.
Developer may be eligible for reimbursement from others for the cost of certain off-site
public improvements that benefit other properties. It is Developer's responsibility to
request reimbursement and submit the appropriate information per LMC Section 17.62.
6. Work; Time for Commencement and Performance
Developer shall, within 365 calendar days from the date of this Agreement, perform or
cause to be performed, all work and/or improvements described in this Agreement. At
least 15 calendar days prior to the commencement of work hereunder, Developer shall
notify the Public Works Director of the date fixed by Developer for commencement
thereof, so that City can provide inspection services.
7. Time Extension
Time is of the essence of this Agreement. City may extend the time for completion of the
improvements hereunder, under the terms of an addendum to this Agreement, which
shall be approved and executed by the City Manager. Any such extension may be
granted without notice to Developer's surety, and extensions so granted, shall not relieve
the surety's liability on the bond to secure the faithful performance of Developer under this
Agreement. The City Manager shall make the sole and final determination as to whether
or not good cause has been shown to entitle Developer to an extension.
8. Record Drawings and Certifications
Prior to acceptance of the Project improvements, Developer shall have installed and put
in place, all survey monuments as shown on the Map and provide record drawings and
certifications as described in the City of Lodi Public Improvement Design Standards.
9. Permits; Compliance with Law
Developer shall, at Developer's expense, obtain all necessary permits and licenses for the
construction of the improvements described in this Agreement, give all necessary notices,
and pay all fees and taxes required by law.
10. Superintendence by Developer
Developer shall give personal superintendence to the Project, or have a competent agent,
foreman or superintendent, satisfactory to the Public Works Director, on the Project work
site at all times during construction, with authority to act for Developer.
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11. Inspection by City
Developer, shall at all times, maintain proper facilities and provide safe access for
inspection by City to all parts of the work site. Inspections will be provided during normal
working hours of City staff. Developer will be billed for inspections on work performed on
weekends, holidays and overtime. Developer shall also pay all additional costs incurred
by City for soils and materials testing and/or inspection services, including storm water
compliance inspections, required as a part of City inspection activities.
12. Contract Security
Concurrently with the execution of this Agreement, Developer shall furnish Improvement
Security of at least 100 percent of the estimated cost of the public improvements required
to be constructed, or have already been constructed, plus deferred fees and engineering
costs of surveying, record drawings and certifications as security for the faithful
performance of this Agreement; and an amount equal to at least 100 percent of the above
costs, excluding deferred fees, as security for the payment of all persons performing labor
and furnishing materials in connection with this Agreement as more fully described in the
State Subdivision Map Act.
The City has determined these security amounts to be as follows:
Faithful Performance:
Labor and Materials:
$ 2,728,100.00
$ 2,728,100.00
13. Warranty Security
Prior to acceptance of the Project improvements by City, Developer shall furnish warranty
security of at least 10 percent of the total cost of the public improvements required to be
constructed, as security for repair or replacement of defective work as provided under
Paragraph 17 of this Agreement. The warranty period shall be two years following the
date of acceptance of the improvements by City. If any portion of the Project receives
partial acceptance during the course of construction, the warranty period for all required
Project improvements shall commence upon the date of final acceptance for the entire
Project.
14. Indemnity and Hold -Harmless Agreement
Except for the gross negligence or willful misconduct of an Indemnitee (as hereinafter
defined), the Developer hereby assumes liability for and agrees to defend (at
Indemnitees' option), indemnify, protect and hold harmless City and its elected and
appointed boards, commissions, officers, agents, volunteers, and employees
("Indemnitees") from and against any and all claims, charges, damages, demands,
actions, proceedings, losses, stop notices, costs, expenses (including attorney fees),
judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may
be sustained or suffered by or secured against the Indemnitees arising out of or
encountered in connection with this Agreement or the performance of the Project
including, but not limited to, death of or bodily or personal injury to persons or damage to
property, including owned by or under the care and custody of City, and for civil fines and
penalties, that may arise from or be caused, in whole or in part, by any negligent or other
act or omission of Developer, its officers, agents, employees, contractors or
subcontractors including, but not limited to, liability arising from:
A. Any dangerous, hazardous, unsafe or defective condition of, in or on the
premises, of any nature whatsoever, which may exist by reason of any act,
omission, neglect, or any use or occupation of the Project site by Developer, its
officers, agents, employees, contractors or subcontractors;
B. Any operation conducted upon or any use or occupation of the premises by
Developer, its officers, agents, employees, contractors or subcontractors under or
pursuant to the provisions of this Agreement or otherwise;
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C. Any act, omission, or negligence of Developer, its officers, agents, employees,
contractors or subcontractors.
D. Any failure of Developer, its officers, agents or employees to comply with any of
the terms or conditions of this Agreement or any applicable federal, state,
regional, or municipal law, ordinance, rule or regulation; and
E. The conditions, operations, uses, occupations, acts, omissions or negligence
referred to in sub -sections A, B, C, D, E, and F of this paragraph, existing or
conducted upon or arising from the use or occupation by Developer on any other
premises in the care, custody and control of City.
F. Any and all costs incurred by or imposed upon the City of Lodi associated with the
construction of any and all public infrastructure (including but not limited to
industrial and domestic wastewater mains, and storm drain) not otherwise
covered by the Storm Impact Fee Program, that benefit or serve the Gateway
North Unit No. 1 Subdivision (Tract 3940).
In the event Developer does not reimburse City for the above improvements, Developer
shall have no right to hook into the public infrastructure and will be required to submit a
revised Tentative Map showing an alternative design to provide for public infrastructure
necessary to serve the Project.
The Developer also agrees to indemnify City and pay for all damage or loss suffered by
City including but not limited to damage to or loss of City property, to the extent not
insured by City and loss of City revenue from any source, caused by or arising out of the
conditions, operations, uses, occupations, acts, omissions or negligence referred to in
sub -sections A, B, C, D, E, and F of this paragraph.
Developer's obligations under this Section apply regardless of whether or not such claim,
charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment,
civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee.
However, without affecting the rights of City under any provision of this Agreement,
Developer shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where
City's active negligence accounts for only a percentage of the liability involved, the
obligation of Developer will be for that entire portion or percentage of liability not
attributable to the active negligence of City.
Developer agrees to obtain executed indemnity agreements with provisions identical to
those set forth in this paragraph from each and every contractor or subcontractor or any
other person or entity involved by, for, with or on behalf of Developer in the performance
of this Agreement. In the event Developer fails to obtain such indemnity obligations from
others as required here, Developer agrees to be fully responsible according to the terms
of this paragraph.
Failure of City to monitor compliance with these requirements of this paragraph imposes
no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Developer and shall survive the termination of this
Agreement or this paragraph.
This Indemnity shall survive termination of the Agreement. This Indemnity is in addition to
any other rights or remedies that the Indemnitees may have under the law or under any
other contract or agreements. In the event of any claim or demand made against any
party which is entitled to be indemnified hereunder, City may, in its sole discretion,
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reserve, retrain or apply any monies owing to the Developer under this Agreement, if any,
for the purpose of resolving such claims; provided, however, City may release such funds
if the Developer provides City with reasonable assurance of protection of the Indemnitees'
interests. City shall, in its sole discretion, determine whether such assurances are
reasonable.
15. Developer's Insurance
Developer shall not commence work under this Agreement until Developer shall have
obtained all insurance required under this paragraph, nor shall Developer allow any
contractor or subcontractor to commence work on Developer's behalf or request until all
similar insurance required of the contractor or subcontractor shall have been so obtained
and approved by the City's Risk Manager. All requirements herein provided shall appear
either in the body of the insurance policies or as endorsements and shall specifically bind
the insurance carrier.
Insurance requirements are set forth in Exhibit C, attached hereto and incorporated
herein.
16. Title to Improvements
Title to, and ownership of, all public improvements constructed hereunder by Developer
shall vest absolutely in City upon completion and acceptance of such public
improvements by City.
17. Repair or Reconstruction of Defective Work
If, within a period of two (2) years after final acceptance by City of the work performed
under this Agreement, any structure or part of any structure furnished and/or installed or
constructed, or caused to be installed or constructed by Developer, or any of the work
done under this Agreement, including the mitigation measures for dust and erosion
control, fails to fulfill any of the requirements of this Agreement plans and specifications
referred to herein, Developer and Developer's surety shall, without delay and without cost
to City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or
parts of the work or structure. Should Developer or Developer's surety fail to act promptly
or in accordance with this requirement, or should the exigencies of the case require
repairs or replacements to be made before Developer can be notified, City may, at its
option, make the necessary repairs or replacements or perform the necessary work, and
Developer shall pay to City the actual cost of such repairs plus 15 -percent for
administration and overhead costs.
18. Landscape Maintenance
Developer shall perform regular maintenance on landscape elements, including plants
and irrigation systems installed with the Project for a period of two (2) years after the final
acceptance by City. Should Developer or Developer's surety fail to act promptly or in
accordance with this requirement, or should the exigencies of the case require
maintenance to be performed before Developer can be notified, City may, at its option,
perform the necessary maintenance work, and Developer shall pay to City the actual cost
of such repairs plus 15 -percent for administration and overhead costs.
19. Repair or Replacement of City -Owned Bypass Meter Assemblies
Developer is required by City to install bypass meter assemblies in conjunction with the
installation of water mains in the City of Lodi. City will supply these assemblies upon
receipt of a deposit in the amount of $5,263 for each assembly required. The purpose of
the deposit is to guarantee the return of the assembly in good condition and fulfillment of
the other obligations shown in the City's Policies and Procedures entitled "Metering Water
Usage of New Water Mains Requiring Temporary Bypasses."
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20. Mud, Debris, Dust and Erosion
Developer agrees and covenants not to permit mud or other debris to be tracked from the
Project site or elsewhere onto City or County streets or onto private property without
express permission. Developer further agrees not to cause damage to City or County
streets.
Should any mud or debris be deposited in City or County streets or any damage is caused
to City or County streets, Developer shall have the same removed or repaired forthwith,
and if not removed or repaired upon notice within a specified time, City shall cause the
same to be removed or repaired and Developer shall be charged for the cost of said
removal or repairs.
Developer, Developer's contractor, subcontractors, and/or agents shall be responsible for
dust and erosion problems created during construction, including installation of telephone,
electrical, cable television and gas facilities. Developer's responsibility for dust and
erosion control shall extend to include a period of two years from the date of final
acceptance by City of the work performed under this Agreement.
If a dust or erosion problem arises during Project construction or within a period of two (2)
years from the date of final acceptance by City of the work performed under this
Agreement, including but not limited to installation of telephone, electrical, cable
television, and/or gas facilities, and has not, after notice, been abated by Developer within
a specified period of time, City shall cause the same to be controlled, and Developer shall
be charged with the cost of said control.
21. Fire Protection During Construction
Fire protection facilities approved by City's Fire Chief, including all-weather access road
and an approved water supply capable of supplying the required fire flow, shall be
installed and made serviceable in accordance with the City Fire Code (as set forth in the
Lodi Municipal Code) prior to and during the time of Project construction. The above may
be modified when alternate methods of protection approved by the Fire Chief are
provided.
22. Protection of Existing Improvements
Damage to any existing improvements, private or public utility lines installed or
undergoing installation in which damage occurs during the onsite and offsite construction
required of Developer under this Agreement, shall be the absolute responsibility and
liability of Developer. In other words, it shall be Developer's responsibility to pay for
damage to existing improvements and public or private utilities within the Project property.
Damage to any existing facilities outside the limits of the Project damaged as part of the
construction of the required Project improvements is also Developer's responsibility.
23. Dwelling Occupancy
City will not allow occupancy of any building or structure within the area of the Map until all
deferred fees have been paid, public improvements have been approved and accepted by
the Public Works Department per established City policy and other requirements of City
codes have been met. If building is started prior to acceptance of the improvements, it is
Developer's responsibility to inform all prospective purchasers that occupancy will not be
permitted until said deferred fees are paid and public improvements are so accepted by
City.
24. Developer Not Agent of City
Neither Developer nor any of Developer's agents, contractors, or subcontractors are or
shall be considered to be agents of City in connection with the performance of
Developer's obligations under this Agreement.
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25. Notice of Breach and Default
If Developer refuses or fails to obtain prosecution of the work, or any severable part
thereof, with such diligence as will insure its completion within the time specified, or any
extensions thereof, or fails to obtain completion of said work within such time, or if
Developer should be adjudged bankrupt, or Developer should make a general
assignment for the benefit of Developer's creditors, or if a receiver should be appointed in
the event of Developer's insolvency, or if Developer or any of Developer's contractors,
subcontractors, agents, or employees, should violate any of the provisions of this
Agreement, the Public Works Director or City Council may serve written notice upon
Developer and Developer's surety of breach of this Agreement, or any portion thereof,
and the default of Developer.
26. Breach of Agreement; Performance by Surety or City
In the event of any breach of this Agreement, Developer's surety shall have the duty to
take over and complete the work and the improvements as herein specified; provided
however, that if the surety, within five (5) days after the serving upon it of such notice of
breach, does not give City written notice of its intention to take over the performance of
this Agreement, and does not commence performance thereof within five (5) days after
notice to City of such election, City may take over the work and prosecute the same to
completion, by contract or by any other method City may deem advisable, for the account
and at the expense of Developer, and Developer's surety shall be liable to City for any
excess cost or damage occasioned City thereby; and, in such event, City, without liability
for so doing, may take possession of, and utilize in completing the work, such materials,
appliances, plant and other property belonging to Developer as may be on the site of the
work and necessary therefor.
27. This Agreement shall run with the land and be binding on the Developer, its heirs,
successors and assigns.
28. No Vesting.
Nothing is this Agreement will vest Developer against conditions or requirements being added
to the Map at the time of its approval.
29. Notices.
All notices herein required shall be in writing, signed by the authorized representative of
the sender and shall be deemed to have been given when the same is personally served
or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from
the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the
respective parties.
Notices required to be given to City shall be addressed as follows:
Charles E. Swimley, Jr.
Public Works Director
City of Lodi
221 West Pine Street
P. 0. Box 3006
Lodi, CA 95241-1910
Notices required to be given to Developer shall be addressed as follows:
Thomas P. Doucette
President
Blossom Land Company
10100 Trinity Parkway, Suite 420
Stockton, CA 95219
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Notices required to be given to Surety shall be addressed as follows:
Provided that either party or the surety may change such address by notice in writing in
the manner set forth above, to the other party and thereafter notices shall be addressed
and transmitted to the new address.
30. Authority
The undersigned hereby represent and warrant that they are authorized by the party they
purport to represent to execute this Agreement.
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31. Execution
In Witness Whereof, Developer and City have caused their names and corporate seals to
be hereunto affixed.
ATTEST:
JENNIFER M. FERRAIOLO
City Clerk
APPROVED AS TO FORM:
JANICE D. MAGDICH
City Attorney
BLOSSOM LAND COMPANY, a California
corporation
Dated'
By:
THOMAS P. DOUCETTE
President
(CORPORATE SEAL)
CITY OF LODI,
a California municipal corporation
Dated:
By:
STEPHEN SCHWABAUER
City Manager
(CORPORATE SEAL)
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