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SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT made this 2nd day of June, 1999 by and between the CITY OF
WHEAT RIDGE, COLORADO, a home rule municipal corporation (the "City"), and Mr.
John Sand, (the "Developer"), together referred to as the "Parties" -
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RECITALS,
The Developer is the owner of certain real property located in the City of Wheat
Ridge, commonly known as 9549 W, 49th Avenue
A copy of the Final Plat for Lot 2 of Independence Park is attached hereto as
Exhibit A and incorporated herein
The approvals cited above are contingent upon the express condition that all duties
created by this Agreement be faithfully performed by the Developer
AGREEMENT
NOW, therefore, for and in consideration of the mutual promises and covenants
contained herein, the sufficiency of which are mutually acknowledged, the parties hereto
agree as follows
1 Purpose The purpose of this Agreement is to set forth the terms, conditions,
and fees to be paid by the Developer upon subdivision of the Property All conditions
contained herein are in addition to any and all requirements of the City of Wheat Ridge
Subdivision Ordinance and Zoning Ordinance, the City of Wheat Ridge Charter, any and
all state statutes, and any other sections of the City of Wheat Ridge Municipal Code and
are not intended to supersede any requirements contained therein
2 Other Requirements NONE
3 Fees The Developer hereby agrees to pay City Development Review fees
to the City for engineering, hydrological, surveying, legal, and other services rendered in
connection with the review of the subdivision of the Property
4 Title Policy A title commitment for the Property shall be provided to the City
The title commitment shall show that all property to be dedicated to the City is or shall be,
subsequent to the execution and recording of this Agreement, free and clear of all liens
and encumbrances (other than real estate taxes which are not yet due and payable) The
City, in its sole discretion, may accept any dedication regardless of encumbrances The
title policy evidenced by the title commitment shall be provided thirty (30) days after the
recording of this Agreement
SUBDIVISION IMPROVEMENT AGREEMENT 1/98
5 Breach by the Developer; the City's Remedies In the event of a breach of
any of the terms and conditions of this Agreement by the Developer, the City Council shall
be notified immediately and the City may take such action as permitted and/or authorized
by law, this Agreement, or the ordinances and Charter of the City as the City deems
necessary to protect the public health, safety and welfare, to protect lot buyers and
builders, and to protect the citizens of the City from hardship and undue risk. These
remedies include, but are not limited to
(a) The refusal to issue any building permit or certificate of occupancy;
(b) The revocation of any building permit previously issued under which
construction directly related to such building permit has not commenced,
except a building previously issued to a third party,
(c) A demand that the security given for the completion of the Public
Improvements be paid or honored, or
(d) Any other remedy available at law or in equity
Unless necessary to protect the immediate health, safety and welfare of the City or to
protect the City's interest with regard to security given for the completion of the Public
Improvements, the City shall provide the Developer thirty (30) days written notice of its
intent to take any action under this paragraph during which thirty day period the Developer
may cure the breach described in the notice
6 Public Improvements and Warranty All storm sewer lines, drainage
structures, paved streets, including curb, gutter and sidewalk, and necessary
appurtenances as shown on the subdivision plat and the associated construction
documents (the "Public Improvements" or "Improvements") as approved by the Director of
Public Works or designee of the City, shall be installed and completed at the expense of
the Developer within the time frames set forth on Exhibit C The Public Improvements
required by this Agreement and shown on the construction documents approved by the
Director of Public Works of the City, the time frames for construction of the Improvements
and the itemized costs of these Improvements are set forth on Exhibit B attached hereto
and incorporated herein All Public Improvements covered by this Agreement shall be
made in accordance with the construction documents drawn according to regulations and
construction standards for such improvement and approved by the Director of Public
Works of the City It is understood by the Parties that the description of the Public
Improvements may be general in nature, and that reasonable modifications of the scope,
nature, costs, and similar aspects of the Public Improvements may be necessary to secure
final approval of the Public Improvements The quantities and locations for the Public
Improvements are based on information that was available at the time of approval of the
Final Plat Additional Public Improvements may be required, and Developer shall be
responsible for submitting revisions to the Final Plat approved by the City
The Developer shall warrant any and all Public Improvements which are conveyed
to the City pursuant to this Agreement for a period of two (2) years from the date the City's
Director of Public Works certifies that the same conform with specifications approved by
the City Specifically, but not by way of limitation, the Developer shall warrant the
following
SUBDIVISION IMPROVEMENT AGREEMENT 1198 -2-
(a) That the title conveyed shall be marketable and its transfer rightful,
(b) Any and all facilities conveyed shall be free from any security interest or
other lien or encumbrance, and
(c) Any and all facilities so conveyed shall be free of defects in materials or
workmanship for a period of two (2) years as stated above
(d) To the degree the Developer is required to install and maintain landscaping
on public or private property, it is the obligation of Developer to maintain the
required landscaping for two (2) growing season(s),
The City will finally accept for maintenance all Public Improvements after the
warranty period has expired provided all warranty work has been completed The City
shall accept for snow removal purposes only, all dedicated public streets after the City
issues the first certificate of occupancy
7 Installation of Traffic Signal A traffic signal may be required to serve this
development Determination of the need for the signal shall be made by the City's Public
Works Director, hereinafter "Director", prior to building permit issuance and based upon
a traffic study for this development approved by the City The Developer shall provide
collateral for the estimated cost of installation of the traffic signal prior to building permit
issuance, if the Director has determined that a signal is needed Prior to building permit
issuance, the Developer shall provide traffic signal plans for approval by the Developer
and the Colorado Department of Transportation
The Developer shall notify the City in writing, a minimum of one hundred sixty (160)
days prior to the desired time of installation/modification of the traffic signal in order to
allow the City to coordinate the timing of the traffic signal improvements If the Director
approves installation of the signal based on meeting traffic warrants, the City shall then
notify the Developer in writing of the exact amount required for the traffic signal
improvements The Developer shall then make payment to the City in cash for the
required amount within sixty (60) days of receipt of such letter The City will not
commence traffic signal improvements until the Developer has paid to the City the total
amount determined by the Director to be the total cost of improvements
8 Observation, Inspection and Testing The City shall have the right to require
reasonable engineering observations and testing at the Developer's expense Observation
and testing, acquiescence in, or approval by any engineering inspector of the construction
of physical facilities at any particular time shall not constitute the approval by the City of
any portion of the construction of such Public Improvements Such approval shall be made
by the City, only after completion of construction and in the manner hereinafter set forth
The Director is designated by the City to exercise authority on its behalf under this
Agreement and to see that this Agreement is performed according to its terms Work
under this Agreement may, without cost or claim against the City, be suspended by the
Director for substantial cause
SUBDIVISION IMPROVEMENT AGREEMENT 11gB -3-
The Director shall, within a reasonable time after presentation, make decisions in
writing on all claims of Developer and on all other matters relating to the execution and
progress of the work or the interpretation of this Agreement, the master plan and , \.
specifications All such decisions of the Director shall be final .
The Director shall make all determinations of amounts and quantities of work
performed hereunder To assist him in this work Developer shall make available for
inspection any records kept by Developer
The Director shall make all determinations of amounts and quantities of work
performed hereunder To assist him in this work Developer shall make available for
inspection any records kept by Developer
The Director and his authorized representatives shall have free access to the work
at all times, and Developer shall furnish them with facilities for ascertaining whether the
work being performed, or the work which has been completed, is in accordance with the
requirements of the Agreement.
The Director will make periodic observations of construction (sometimes commonly
referred to as "supervision") The purpose of these observations and construction
checking is to determine the progress of the work and to see if the work is being performed
in accordance with the plans and specifications. He will in no way be responsible for how
the work is performed, safety in, on, or about the job site, methods of performance, or
timeliness in the performance of the work.
Inspectors may be appointed to inspect materials used and work done Inspections
may extend to all or any part of the work and to the preparation or manufacture of the
materials to be used The inspectors will not be authorized to alter the provisions of this
Agreement or any specifications or to act as foreman for Developer The Inspector will
have authority to reject defective materials and to suspend any work that is being done
improperly, subject to the final decision of the Director
9 Completion of Public Improvements The obligations of the Developer
provided for in paragraph 6 of this Agreement, including the inspections hereof, shall be
performed on or before December 2, 1999, and proper application for acceptance of the
Public Improvements shall be made on or before such date Upon completion of
construction by the Developer of such Improvements, the City's Director of Public Works
or designee, shall inspect the Improvements and certify with specificity its conformity or
lack thereof to the City's specifications The Developer shall make all corrections
necessary to bring the Improvements into conformity with the City's specifications Once
approved by the City's Director of Public Works, the City shall accept said Improvements
upon conveyance, provided, however, the City shall not be obligated to accept the Public
Improvements until the actual costs described in this Agreement are paid in full by the
Developer
10 Protection Developer, at its expense, shall continuously maintain adequate
protection of all Improvements from damage prior to acceptance by the City and shall
protect the City's property from injury and loss arising in connection with this Agreement.
SUBDIVISION IMPROVEMENT AGREEMENT 1/98 -4-
Developer shall make good any such damage, injury or loss except such as may be
caused directly by authorized agents or employees of the City Developer shall
adequately protect adjacent property and shall provide and maintain all passageways,
guard fences, lights and other facilities for protection required by public authority or local
conditions
Developer shall be responsible for damage to any public and private property on
and adjacent to the site of Developer's Improvements caused by negligent or willful acts
of Developer, its agents or subcontractors Developer shall take all reasonable effort
necessary to prevent damage to pipes, conduits, and other underground structures and
to overhead wires, and to water quality Developer shall protect carefully from disturbance
or damage all land monuments and property marks until an authorized agent of the City
has witnessed or otherwise referenced their location, and shall not remove them until
directed When any direct or indirect damage or injury is done to public or private property
by or on account of any act, omission, neglect or misconduct in the construction of
Improvements, or in consequence of the non-execution thereof on his part, such damaged
property shall be restored by Developer at its own expense to a condition similar or equal
to that existing before such damage or injury
Developer shall at all times, whether or not so specifically directed by the Director,
take necessary precautions to insure the protection of the public Developer shall furnish,
erect and maintain, at its own expense, all necessary barricades, suitable and sufficient
red lights, construction signs, provide a sufficient number of watchmen, and take all
necessary precautions for the protection of the work and safety of the public through or
around his construction operations as Developer and the Director shall deem reasonably
necessary
11 Related Costs - Public Improvements The Developer shall provide all
necessary engineering designs, surveys, field surveys, testing and incidental services
related to the construction of the Public Improvements at its sole cost and expense,
including final drainage study letter certified accurate by a professional engineer registered
in the State of Colorado
12 Improvements to be the Property of the City All Public Improvements for
roads, concrete curb and gutters, public storm sewers and public drainage improvements
accepted by the City shall be dedicated to the City and warranted for a period of twenty-
four (24) months following acceptance by the City, as provided above
13 Performance Guarantee In order to secure the construction and installation
of the Public Improvements the Developer shall, prior to recording the Final Plat, if
applicable, in the real estate records of Jefferson County, which recording shall occur no
later than ninety (90) days after the execution of this Agreement, furnish the City, at the
Developer's expense, with the Performance Guarantee described herein The
Performance Guarantee provided by the Developer shall be an irrevocable letter of credit
in which the City is designated as beneficiary, for one hundred twenty-five percent (125%)
of the estimated costs of the Public Improvements to be constructed and installed as set
forth in Exhibit B, to secure the performance and completion of the Public Improvements
as required by Section 3 c.5 of the Wheat Ridge Subdivision Regulations The Developer
SUBDIVISION IMPROVEMENT AGREEMENT 1i98 -5-
agrees that approval of this Agreement by the City is contingent upon the Developer's
provision of an irrevocable letter of credit to the City within ninety (90) days of the
execution of this Agreement in the amount and form provided herein Failure of the
Developer to provide an irrevocable letter of credit to the City in the manner provided
herein shall negate the City's approval of this Agreement. Letters of credit shall be
substantially in the form and content set forth in Exhibit C, attached hereto and
incorporated herein, and shall be subject to the review and approval of the City Attorney
The Developer shall not start any construction of any public or private improvement on the
Property including, but not limited to, staking, earth work, overlot grading or the erection
of any structure, temporary or otherwise, until the City has received and approved the
irrevocable letter of credit.
,
The estimated costs of the Public Improvements shall be a figure mutually agreed
upon by the Developer and the City's Director of Public Works, as set forth in Exhibit B
attached hereto If, however, they are unable to agree, the Director of Public Works'
estimate shall govern after giving consideration to information provided by the Developer
including, but not limited to, construction contracts and engineering estimates The
purpose of the cost estimate is solely to determine the amount of security No
representations are made as to the accuracy ofthese estimates, and the Developer agrees
to pay the actual costs of all such Public Improvements
The estimated costs of the Public Improvements may increase in the future
Accordingly, the City reserves the right to review and adjust the cost estimate on an annual
basis If the City adjusts the cost estimate for the Public Improvements, the City shall give
written notice to the Developer The Developer shall, within thirty (30) days after receipt
of said written notice, provide the City with a new or amended letter of credit in the amount
of the adjusted cost estimates If the Developer refuses or fails to so provide the City with
a new or amended letter of credit, the City may exercise the remedies provided for in this
Agreement; provided, however, that prior to increasing the amount of additional security
required, the City shall give credit to the Developer for all required Public Improvements
which have actually been completed so that the amount of security required at all time
shall relate to the cost of required Public Improvements not yet constructed
In the event the Public Improvements are not constructed or completed within the
period of time specified by paragraph 9 of this Agreement or a written extension of time
mutually agreed upon the parties to this Agreement, the City may draw on the letter of
credit to complete the Public Improvements called for in this Agreement. In the event the
letter of credit is to expire within fourteen (14) calendar days and the Developer has not
yet provided a satisfactory replacement, the City may draw on the letter of credit and either
hold such funds as security for performance of this Agreement or spend such funds to
finish Public Improvements or correct problems with the Public Improvements as the City
deems appropriate
Upon completion of performance of such improvements, conditions and
requirements within the required time, the Developer shall issue an irrevocable letter of
credit to the City in the amount of twenty-five percent (25%) of the total cost of construction
and installation of the Public Improvements, to be held by the City during the warranty
period If the Public Improvements are not completed within the required time, the monies
SUBDIVISION IMPROVEMENT AGREEMENT 1/98 -6-
may be used to complete the improvements
14 Indemnification The Developer shall indemnify and hold harmless the City
and its officers, employees, agents or servants from any and all suits, actions, and claims
of every nature and description caused by, arising from or on account of this Agreement
any act or omission of the Developer, or of any other person or entity for whose act or
omission the Developer is liable, with respect to the Public Improvements, and the
Developer shall pay any and all judgments rendered against the City as a result of any
suit, action, or claim, together with all reasonable expenses and attorney's fees and costs
incurred by the City in defending any such suit, action or claim
The Developer shall pay all property taxes on the Property dedicated to the City and
shall indemnify and hold harmless the City for any property tax liability
15 Waiver of Defects In executing this Agreement, the Developer waives all
objections it may have concerning defects, if any, in the formalities whereby it is executed,
or concerning the power of the City to impose conditions on the Developer as set forth
herein, and concerning the procedure, substance, and form of the ordinances or
resolutions adopting this Agreement
16 Third Party Beneficiaries There are and shall be no third party beneficiaries
to this Agreement.
17 Modifications This instrument embodies the whole agreement of the Parties
There are no promises, terms, conditions, or obligations other than those contained herein,
and this Agreement shall supersede all previous communications, representations, or
agreements, either verbal or written, between the parties There shall be no modification
of this Agreement except in writing, executed with the same formalities as this instrument.
Subject to the conditions precedent herein, this Agreement may be enforced in any court
of competent jurisdiction
18 Release of Liability It is expressly understood that the City cannot be legally
bound by the representations of any of its agents or their designees except in accordance
with the City of Wheat Ridge Code of Ordinances and the laws of the State of Colorado
19 Captions The captions to this Agreement are inserted only for the purpose
of convenient reference and in no way define, limit, or prescribe the scope or intent of this
Agreement or any part thereof
20 Bindinq Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, and assigns as the
case may be
21 No Waiver No waiver of any of the provisions of this Agreement shall be
deemed or constitute a waiver of any other provisions herein, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver
of any default hereunder be deemed a waiver of any subsequent default hereunder
SUBDIVISION IMPROVEMENT AGREEMENT 1198 - 7-
22 Invalid Provision If any provision of this Agreement shall be determined to
be void by any court of competent jurisdiction, then such determination shall not affect any
other provision hereof, all of the other provisions shall remain in full force and effect. It is
the intention of the Parties that if any provision of this Agreement is capable of two
constructions, one of which would render the provision void, and the other which would
render the provision valid, then the provision shall have the meaning which renders it valid
23 Governinq Law The laws of the State of Colorado shall govern the validity,
performance and enforcement of this Agreement. Should either party institute legal suit
or action for enforcement of any obligation contained herein, venue of such suit or action
shall be in Jefferson County, Colorado
24 Attornevs Fees Should this Agreement become the subject of litigation to
resolve a claim of default of performance or payment by the Developer and a court of
competent jurisdiction finds in favor of the City, the Developer shall pay the City's
attorney's fees and court costs
25 Notice All notices required under this Agreement shall be in writing and
shall be hand delivered or sent by registered or certified mail, return receipt requested,
postage prepaid, to the addresses of the parties herein set forth All notices so given shall
be considered effective seventy-two (72) hours after deposit in the United States mail with
the proper address as set forth below Either party by notice so given may change the
address to which future notices shall be sent.
Notice to Developer'
Mr. John Sand
6540 W. 62nd Place
Arvada. CO 80003
Notice to City'
Mr. Bob Goebel
Director of Public Works
7500 West 29th Avenue
Wheat Ridge, CO 80215
26 Force Maieure Whenever the Developer is required to complete the
construction, repair, or replacement of Public Improvements by an agreed deadline, the
Developer shall be entitled to an extension of time equal to a delay in completing the
foregoing due to unforeseeable causes beyond the control and without the fault or
negligence of the Developer including, but not restricted to, acts of God, weather, fires and
strikes
27 Assiqnment or Assiqnments There shall be no transfer or assignment of any
of the rights or obligations of the Developer under this Agreement without the prior written
approval of the City
28 Recordinq of Aqreement. This Agreement shall be recorded in the real
estate records of Jefferson County and shall be a covenant running with the Property in
SUBDIVISION IMPROVEMENT AGREEMENT 1/98 -8-
order to put prospective purchases or other interested parties on notice as to the terms
and provisions hereof
29 Title and Authority The Developer, Mr. John Sand, expressly warrants and
represents to the City that it is the record owner of the property constituting the Property
and further represents and warrants, together with the undersigned individual(s) that the
undersigned individual(s) has or have full power and authority to enter into this Subdivision
Improvement Agreement The Developer and the undersigned individual(s) understand
that the City is relying on such representations and warranties in entering into this
Agreement
WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above written
CITY OF WHEAT RIDGE, COLORADO
By'
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Gretchen Cerveny, Mayor
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ATTEST
SUBDIVISION IMPROVEMENT AGREEMENT 1/98
-9-
STATE OF COLORADO
COUNTY OF \t. /..l';c"I"
By'
DEVELOPER
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The foregoing instrument was
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acknowledged before me this
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Witness my hand and official seal
My commission expires.
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SUBDIVISION IMPROVEMENT AGREEMENT 1/98 -10-
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CONSTRUCTION COST ESTIMATE FOR PUBLIC IMPROVEMENTS
r~
For
9545 W 49th Ave. Wheat Ridge, Co.
Prepared by Ed Jennings PE& PLS
PO Box 200662
Denver, Co 80220
303-388-1867
Street Improvements:
Description
Unit Quantity Unit Cost Amount
$ $
If 76 $10.50 $798,00
If 100 $400 $400.00
sqft 304 $3,00 $912.00
sqft 156 $4.00 $624.00
$283.00
Total $3,017,00
15% Contingency $453 00
--
Total public improvements $3,470.00
6" vertical curb
Asphalt cut, removal, & patch back
Sidewalk
Driveway pan
Misc
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.......
.....
NORWEST BANKS
.....
.......
NORWEST BANK COLORADO, NA
LETTER OF CREDIT DEPARTMENT
1740 BROADWAY
ONE NORWEST CENTER
DENVER, CO 80274-8685
TELEX NUMBER: 6737198 NORWEST NBC
SWIFT ADDRESS. NWNBUS55
PHONE (303)863-4654 OR (303)863-4859 FAX (303)863-4898
'L\
IRREVOCABLE STANDBY LETTER OF CREDIT
OUR REFERENCE NUMBER: S801825
MARCH 18, 1999
TO: (BENEFICIARY)
CITY OF WHEAT RIDGE
7500 WEST 29TH AVENUE
WHEAT RIDGE, CO 80215-6713
ACCOUNT PARTY:
BEAR STEAM CLEANING, INC.
6540 WEST 62ND PLACE
ARVADA, CO 80003
WE OPEN IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER S801825
WHICH IS AVAILABLE BY PAYMENT AGAINST BENEFICIARY'S DRAFT(S) AT
SIGHT, DRAWN ON NORWEST BANK COLORADO, NATIONAL ASSOCIATION.
IN FAVOR OF YOURSELVES
EXPIRES AT OUR COUNTERS AT 3:00 P.M. DENVER TIME ON SEPTEMBER
01,1999.
THIS CREDIT IS FOR AN AGGREGATE AMOUNT NOT TO EXCEED A TOTAL OF
U.S, DOLLAR 4,338.00 ( FOUR THOUSAND THREE HUNDRED THIRTY EIGHT
AND 00/100 U.S. DOLLARS). DRAFTS SUBMITTED MUST BE ACCOMPANIED
BY THE FOLLOWING DOCUMENTS:
1. BENEFICIARY'S SIGNED STATEMENT PURPORTEDLY SIGNED BY AN
AUTHORIZED SIGNER STATING: I 'THE AMOUNT DRAWN IS IN PAYMENT OF
IMPROVEMENTS COVERING THE GARAGE ADDITION AT 9545 W. 49TH
AVENUE, WHEAT RIDGE, COLORADO."
2. THIS ORIGINAL LETTER OF CREDIT FOR ENDORSEMENT.
ALL DRAFTS MUST BE MARKED: DRAWN UNDER NORWEST BANK COLORADO,
***CONTINUED ON NEXT PAGE ***
~E.:)(.H' \16 \T 'c- I
......
.....
HORWEST BANKS
.....
..'If..
OUR ~;?, K~ S801825
PAGE
2
/
\L/
NAT=C~AL ASSOCIATION, IRREVOCABLE STANDBY LETTER OF CREDIT
NUMB;? S80=-525
CANC~~LATICN OF Llc PRIOR TO EXPIRATION,
THIS LETTE~ OF CREDIT (AND AMENDMENTS) MUST BE RETURNED TO US
FOR C~~~CEL~qTION WITH A STATEMENT PURPORTEDLY SIGNED BY THE
BENE?:CIAR~ STATING THAT:
"THIS LETT~R OF CREDIT IS NO LONGER REQUIRED BY US AND IS
HEREBY RET~"-...1\!ED TO THE ISSUING BANK FOR CANCELLATION."
WE E~?EBY ~G?EE TO HONOR EACH DRAFT DRAWN AND IN COMPLIANCE WITH
THE TERMS OF THIS CREDIT IF DULY PRESENTED (TOGETHER WITH THE
DOCu~ENTS AS SPECIFIED) TO NORWEST BANK COLORADO, NA, 1740
BROADWAY, ATTN: LETTER OF CREDIT DEPARTMENT, DENVER, CO
80274-8685 ON OR BEFORE THE EXPIRY DATE.
THIS CREDIT IS ISSUED SUBJECT TO THE UNIFORM CUSTOMS AND
PRACT:CE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NO. 500.
NORWEST Bk~K COLORADO, NATIONAL ASSOCIATION
BY:
_cL^1lY ~~ - -&J\j191'Ol1~
(AUT~ORIZED SIGNATURE)
~. /)
tL _(l(_~d~ __
UTHORIZED SIGNATURE)