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RECEPTION NO. F :I. 'I ',"n 0;.:' ':)
5/29/2002 11:30::1.6 PG: 001-016
PAGE FEE: 80,,00 DOC"FEE: 0,,00
RECORDED IN JEFFERSON COUNTY, COLORADO
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SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT made this 26h day of April 2002, by and between the CITY OF
WHEAT RIDGE, COLORADO, a home rule municipal corporation (the "City"), and Lou-
Mar Entities LLC, (the "Developer"), together referred to as the "Parties"
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RECITALS.
1/ /0
The Developer is the owner of certain real property located in the City of Wheat
Ridge, which is more particularly described in Exhibit A, if applicable, and made a part
hereof (the "Property"), commonly known as 9737 W. 32nd Avenue
On August 13. 2001, the City Council of the City of Wheat Ridge, after holding all
required public hearings, approved the final plat for the Property titled Applewood
Preserve Subdivison A copy of the Final Plat is attached hereto as Exhibit Band
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 05/01
5 Breach bv 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 'l-
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 C if applicable 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
(a) That the title conveyed shall be marketable and its transfer rightful,
SUBDIVISION IMPROVEMENT AGREEMENT 05/01 -2-
(b) Any and all facilities conveyed shall be free from any security interest or
other lien or encumbrance, and J
(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 Siqnal 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
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
SUBDIVISION IMPROVEMENT AGREEMENT 05/01 -3-
'.
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
v
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 April 30. 2003, 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.
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
SUBDIVISION IMPROVEMENT AGREEMENT 05101 -4-
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 orderto 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 C, if applicable, to secure the performance and completion of the Public
Improvements as required by Section 26-413 of the Wheat Ridge Subdivision Regulations
The Developer 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 D, if applicable, and shall be
subject to the review and approval of the City Attorney The Developer shall not start any
SUBDIVISION IMPROVEMENT AGREEMENT 05/01 -)-
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 I
otherwise, until the City has received and approved the irrevocable letter of credit. to
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 C if
applicable 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 of these 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
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,
SUBDIVISION IMPROVEMENT AGREEMENT 05101 -6-
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 ofthe 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 liabilitv 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
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
SUBDIVISION IMPROVEMENT AGREEMENT 05/01 -7-
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 jurisd iction finds in favor of the City, the Developer shall pay the City's attorney's
fees and court costs
y
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'
Lou-Mar Entities LLC
3650 Vance, Suite #1
Wheat Ridqe. Colorado 80033
Notice to City.
Robert 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 Recording 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 order to
put prospective purchases or other interested parties on notice as to the terms and
provisions hereof
29 Title and Authoritv The Developer, Lou-Mar Entities LLC, 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.
SUBDIVISION IMPROVEMENT AGREEMENT 05/01 -8-
WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above written.
By'
CITY OF WHEAT RIDG~;COLORADO
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ATTEST (
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Wanda Sang, City Cler~
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DEVELOPER
By'
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Louis J Ficco, Manager
COUNTY OF
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STATE OF COLORADO
The foregoing instrument was acknowledged before me this
, 2002, by
of
day of
, as
Witness my hand and official seal
My commission expires
Notary Public
(SEAL)
SUBDIVISION IMPROVEMENT AGREEMENT 05/01 -9-
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EXHIBIT B
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illtVB 81JlDD!VIIIIO.
N 27, T3S, 'R69W OF THE 6th P.M.
IN COUNTY, STATE OF COLORADO
1 OF 2
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Ascent Engineering
7910 Ralston Road, Suite 4
Arvada. Colorado 80002
Voice 303-456-6518
Fax: 303-463,2965
Engineer's Estimate
Project: 9737 West 32nd Avenue
For' Lou Ficco Jr.
EXHIBIT C
ESTIMATED (labor Included)
) l{
ITEM # DESCRIPTION OF WORK
UNIT
QUANT
UNIT COST TOTAL COST
001 ASPHALT PAVING sy 2,260,00 $14,85 $33.561.00
002 SIDEWALK 15 FEET WIDE) L,F 994 $1500 $14,910.00
003 CURB & GUTTER L.F 1,162 $20.00 $23,240.00
004 HANDI-CAP RAMPS EACH 2 $1.500.00 $3,00000
005 18" FLARED END SECTION EACH 1 $225,00 $225.00
006 TYPE "C" INLET EACH 1 $1,45000 $1,450,00
007 5' TYPE "R" INLET EACH 1 $3.050.00 $3,050 00
008 WR CURB INLET EACH 2 $1.260 00 $2.520 00
009 MANHOLE 4',6' EACH 3 $1,350.00 $4,050.00
010 MANHOLE 6'-8' EACH 2 $1,50000 $3,000.00
011 DETENTION POND RELEASE STRUCTURE EACH 1 $2,50000 $2,500,00
012 15" STORM PIPE L.F 798 $35 00 $27,930 00
013 OVERlOT / ROADWAY GRADING CY 625 $12.50 $7,812,50
014 STACKED BLOCK RETAINING WALL SF 700 $20.00 $14,000.00
TOTAL
$141,248,50
Scope Public Improvements / 34th Avenue
ESTIMATED (Labor Included)
ITEM # DESCRIPTION OF WORK
UNIT
QUANT
UNIT COST TOTAL COST
001 15" STORM PIPE L.F 767 $35.00 $26,84500
002 MANHOLE 4'-6' EACH 1 $1,350,00 $1,350,00
003 MANHOLE 6',8' EACH 1 $1,50000 $1.500 00
004 MANHOLE 8'-10' EACH 1 $1,75000 $1,750,00
005 MANHOLE 10'-12' EACH 1 $2.00000 $2,000.00
006 TIE INTO STORM SEWER IN KIPLING l.S 1 $2,250.00 $2,25000
007 60 L.F DITCH BORING L,S, 1 $19,500,00 $19,50000
008 ASPHALT PATCHBACK SY 225 $16,50 $3,712.50
009 TRAFFIC CONTROL L.S 1 $2,500,00 $2.500 00
TOTAL
$61,407.50
Total Public Improvements Estimated Cost + 25% Contingency
$253,320.00
i~BAN{
BtNErlCIAI1Y.
City 0f Wheat Ridys
7500 West 29Th Avenue
EXHIBIT D
IRREVOCABLE
LETTER OF
CREDIT /~
FirstBank or Wheat Ridge
4350 Wadsworth Boulevard
Wheat Ridge CO 80033
(303) 423-1400 "LENDER"
ADpRESS
Wheat Ridge, CO
TElEi'HOtjE NO,
80033
iPI'NTif'lCATlbI'INO.
NO.: 8940Jl35
CUSTOMER
EXPIRAtlONOATE
Louis J" Ficco
11315 West 38Th
Wheat Ridge, CO
TELEPHbNE .No.
ADDRESS
Avenue
80033
iDENTIFICATION NO:
This Letter of Credit shall expire upon the earlier of'
1. the close of business on
April 25, 2003
and all drafts and accompanying statements or documents
must be presented to Lender on or before that time; or
2. the day that Le.n~er honors a draw under which the full
amount of this Letter of Credit has been drawn.
Lender hereby establishes at the request and for the account of Customer, an Irrevocable Letter of Credit in favor of Beneficiary for a
sumof Two Hundred Fifty Three Thousand Three Hundred Twenty and nO/100
Dollars ($ 253,320.00 )
These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's
address indicated above (or such other address that Lender may provide Beneficiary in writing) during regular business hours and
accompanied by the signed written statements or documents indicated below
WARNINGTO BENEFICIARY:PLEASEEXAMINETHIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS
REQUIREMENTS,EITHER SINGLY OR TOGETHER,YOU SHOULD CONT ACT THE CUSTOMER IMMEDIATEL YTO SEE IF THE LETTER
OF CREDITCAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTEROF CREDIT FOR FAILURETO
COMPLY STRICTLY WITH ITS TERMS AS WRITTEN.
1. DRAFT TERMS AND CONDITIONS
Lender shall honor drafts submitted by Beneficiary under the following terms and conditions:
Upon Lender's honor of such drafts, Lender shall be fully discharged of its obligations under this Letter of Credit and shall not be
obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has
been drawn. If a non-conforming demand is made, Lender shall notify Beneficiary of its dishonor on or before the time specified in
Paragraph 5 below
Beneficiary shall have no recourse against Lender for any amount paid under this Letterof Credit once Lender has honored any draft or
other document which complies strictly with this Leller of Credit, and which on its face appears otherwise in order but which is signed,
issued, or presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or
posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender
makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary,or any other person,
for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by
Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not
and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds
received by Beneficiary in excess of the Letter of Credit's maximum drawing amount.
2. USE RESTRICTIONS
All drafts must be marked "DRAWN UNDER FirstBank Of Wheat Ridqe
IRREVOCABLE LETTER OF CREDlL6M0835
JM:>ri 1 25, 2002 ," and the amount of each draft shall be marked on the draft. Only Beneficiary or Beneficiary's
Transferee (if this Letlerof Credit is transferable) may complete a draft and accompanying statements or documents required by this
Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder
Partial draws 0 are permitted [Xl are not permitted under this Letter of Credit. Lender's honor of a partial draw shall
correspondingly reduce the amount of credit available under this Letter of Credit. Following a partial draw, Lender shall return this
original Letter of Credit to Beneficiarywith the partial draw noted hereon; in the alternative,and in its sole discretion, Lender may
issue a substitute Letter of Credit to BenefiCiary in the amount shown above, less any partial draw(s).
3. PERMITTED TRANSFEREES
o If checked, this Letterof Credit may be transferred by Beneflciaryupon prior written notice to Lender of the transfer The Transferee
shall be deemed the new Beneficiary of this Letter of Credit and the documents of the Transferee, including drafts required under
this Letter of Credit, will be processed by Lender (or any intermediary) without the original Beneficiary's intervention and without any
further obligation of Lender to the original Beneficiary
00 If checked, the right to draw under this Letter of Credit shall be nontransferable; except for:
A. A transfer (in its entirety, but not in part) by direct operation of law to the original Beneficiary's administrator, executor, bankruptcy
trustee, receiver, liquidator, successor, or other representative at law; and
B. The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a
governmental body (judicial, administrative, or executive)
MAST6(\;>(f)ForrnAlion T,." ')"Oil'!<;, Inc:, (,113/9G) (800) 937-3799
4. TRANSFEREE'S REQUIRED DOCUMENTS
When the presenter is a permitted Transferee under paragraph 3 above, the documents required for a draw shall include:
A. All documents required elsewherein this letterof Credit, except that such documents may be in the name of and executed by either
the original Beneficiary or the presenter permitted by paragraph 3; and
B. When the presenter is a permitted Transfereeunder paragraph 3.A. or a third party under paragraph 3.B., a certified copy of the one
or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary / /_
5. TIMING OF DISHONOR /lP
lender may rely upon any reason for dishonor which it communicates to Beneficiaryor the presenterwithin three (3) Banking Days after
lender has received the last document forming Beneficiary's presentment (the 'Three-DayPeriod"). lender shall be entitled to rely upon
such reason without regard to either (i) the timing of any presentment made before the Expiration Date, or (ii) the timing inside the
Three-DayPeriod of any preliminary communication(s) from lender concerning the dishonor decision or any reason for dishonor For
any reason for dishonor given during the Three-Day Period, lender shall be conclusively deemed to have met the 'reasonable time",
"without delay', and other timing requirements as the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC
Publication No 500, as most recently published by the International Chamber of Commerce (the "UCP") may impose. The Expiration
Date shall not be extended to accommodate a presentment made less than three (3) Banking Days before the Expiration Date, and
Beneficiary shall not be entitled to submit a draw request or provide lender with any documents in support of a draw allerthe Expiration
Date. lender shall not be required to communicate a dishonor decision or its reasons within a time less than the Three-Day Period.
"Banking Day' means any day, except Saturday, on which commercial banks located in Colorado are open.
6. COMPLIANCE BURDEN
lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this letter of
Credit precisely as written. Beneficiary understands and acknowledges: (I) that unless and until the present wording of this letter of
Credit is amended with lender's prior written consent, the burden of complying strictly with such wording remains solely upon
Beneficiary; and (ii) that lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval
of such wording.
7. NON-SEVERABILITY
If any aspect of this Letterof Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction,
lender's entire engagement under this letterof Credit shall be deemed null and void ab initio, and both lender and Beneficiaryshall be
restored to the position each would have occupied with all rights available as though this letter of Credit had never occurred. This
non-severability provision shall override all other provisions in this letter of Credit, no matter where such provision appears within this
letter of Credit.
8. CHOICE OF LAW/JURISDICTION
This Letter of Credit is subject to the UCP This Letter of Credit shall be governed by and construed in accordance with the laws of the
State of Colorado , United States of America, except to the extent such laws are inconsistent with the UCP lender
and BenefiCiary consent to the jurisdiction and venue of any court selected by lender in its discretion located in the State of
Colorado in the event of any legal proceeding under this letterof Credit.
9. EXPIRATION
lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this letter of Credit will be duly
honored if presented to the lender on or before the Expiration Date.
Dated: April 25, 2002
B :
Thomas W.
President
ENDORSEMENT OF DRAFTS DRAWN:
Date
Negotiated By
Amount
In Words
Amount
In Figures
, }
,f,
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/
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MAST602B @ FormAtion Technologies, Inc. (9/3/96) (800) 937-3799