HomeMy WebLinkAbout19- Improvements Agreement - Baxter Meadows Land Partners, LLC - Sundance Minor Subdivision Phase A and C - Subdivision Pathway Improvements, Park Improvements, and Landscaping MINOR 509
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City of Bozeman
Department of Community Development
P.O. Box 1230
Bozeman,MT 59771
PLATTED /�
2670321
Page: 1 of 15 01/16/2020 08:44:19 AM Fee $105.00
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IMPROVEMENTS AGREEMENT
FOR SUNDANCE MINOR SUBDIVISION, PHASE A AND C
(SUBDIVISION PATHWAY MPROVEMENTS,
PARK IMPROVEMENTS, AND LANDSCAPING)
THIS AGREEMENT is made and entered into this r 1-- day of December 2019, by
and between the Baxter Meadows Land Partners, LLC, hereinafter called the "Subdivider", and
the City of Bozeman, a self-governing municipal corporation and political subdivision of the State
of Montana, with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT
59771-1230,hereinafter called the "City".
WHEREAS, the Subdivider desires to meet the conditions of preliminary plat approval,
Planning Application No. 19-307,to obtain approval to file a final plat for a subdivision known as
Sundance Minor Subdivision (P14052), a subdivision on 28.210 acres that would create five (5)
commercial lots with the remaining areas as public streets; and
WHEREAS,the Subdivider desires to obtain final plat approval for SUNDANCE MINOR
SUBDIVISION, PHASE A & C, and to record the same prior to the installation of all required
subdivision improvements; as such, the Subdivider desires to enter into an improvements
agreement with the City and provide financial security guaranteeing the completion of certain
improvements; and
WHEREAS, it is the intent and purpose of both the Subdivider and the City to hereby
enter into this Agreement to memorialize the terms and conditions for which final plat may be
granted.
i!
Sundance Mhor Subdivision,Phase A &C—Improvements Agreement Page 1 of 9
NOW,THEREFORE,in consideration of the mutual covenants and conditions contained
herein, it is hereby agreed as follows:
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
LOT R1 OF THE AMENDED PLAT OF BAXTER MEADOWS SUBDIVISION,
PHASE 2B,AND LOT 1 OF MINOR SUBDIVISION NO 400 AS FILED IN BOOK J
ON PAGE 506A, LOCATED IN THE SOUTHEAST ONE-QUARTER(SE1/4) OF
SECTION 34, TOWNSHIP ONE SOUTH(T1 S), RANGE FIVE EAST (R5E), P.M.M.,
CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements for the
Sundance Minor Subdivision(the"Subdivision"): subdivision street improvements,street frontage
landscaping, and recreation pathway improvements (the above are referred to as the
"Improvements").
The estimated cost of the Improvements has been estimated by the Subdivider's agent,
WGM Group, 109 East Main Street, Suite B, Bozeman,MT 59715, at Four Hundred Seventy Two
Thousand Six Hundred Thirty Four and Zero Cents ($472,634.00). The estimate is attached and
hereby made a part of this Agreement, as Exhibit`B".
3. Financial Guarantee, Time for Completion of Improvements, Additional
Restrictions
A. The Subdivider represents and agrees it will complete all Improvements as required by
Findings of Fact and Order for the Subdivision within ten (10) months of the date of
recording of the final plat. In reliance on such representation, the City consents to the
Subdivider filing the final plat prior to completion of the required Improvements. The
Subdivider must maintain adequate financial security guaranteeing the completion of the
Sundance Minor Subdivision,Phase A& C—Improvements Agreement Page 2 of 9
Improvements until such Improvements are accepted by the City. The Subdivider's
performance under this Agreement is specifically guaranteed and secured by an irrevocable
standby letters of credit: Letter of Credit No. 894 for an amount not to exceed$708,951.00
from First Interstate Bank, Boise Plaza 121, 401 W Front Street, Boise, ID 83702. These
letters of credit constitute the "Financial Security."
B. Notwithstanding the time frame for completion of the Improvements stated in subsection A of this
section,the City agrees the Subdivider may defer completion of the following Improvements to not
later than thirty-six(36) months of the filing of the final plat for the Subdivision: sidewalks along
all private lots.
C. Subdivider acknowledges and agrees the Financial Security is specifically provided for the benefit
of the City to guarantee and secure completion of the Improvements within the timeframes
specified above and that the Financial Security may be drawn upon by the City without notice to
the Subdivider and used by the City for completion of the Improvements in its sole discretion but
only if the Subdivider fails to comply with the terms and conditions of this Agreement.
D. Subdivider acknowledges the Financial Security lapses on January 15, 2021. Subdivider
also acknowledges the issuer of the Financial Security may give notice to the City of its
intent to not renew the Financial Security but must do so no less than thirty(30) days prior
to the expiration of the Financial Security or the Financial Security is extended for an
additional year. As a result of the above, the Subdivider agrees that if the issuer of the
Financial Security provides notice to the City of non-renewal of the Financial Security
prior to the completion of all of the Improvements such non-renewal may place the
Subdivider in breach of this Agreement. In such a case, the Subdivider must, within ten
(10) days of the Subdivider acquiring information of the issuer's intent not to renew the
Financial Security or the City's notice to the Subdivider that the City received a notice
from the issuer of the Financial Security that the issuer intends to not renew the Financial
Security, whichever is earlier, provide the City alternative financial security in a form
acceptable to the City. Subdivider agrees that failure to provide such alternative financial
security within 10 days of the City's notice or the Subdivider acquiring knowledge of the
issuer's non-renewal shall be deemed a material breach of this Agreement and the City
may,without any further notice to the Subdivider,draw upon the Financial Security for the
Sundance Minor Subdivision,Phase A&C—Improvements Agreement Page 3 of 9
costs of any outstanding Improvements at 150% of the City's estimate cost of such
Improvements regardless of the costs estimates included in Exhibit A and regardless of
whether the timeframe for completion of such improvements has passed.
E. The Subdivider agrees that no delegation of performance required by this agreement shall relieve
the Subdivider of any duty to perform or any liability for the breach of that duty to complete said
subdivision improvements required for the Subdivision.
F. Upon submission of fully documented invoices.for the work performed, said work to be inspected
and certified for payment by Subdivider's professional engineers and the City and or its agents as
necessary, the City may release a portion of the Financial Security for the work completed by the
referenced invoices.
4. Inspection
Representatives of the City shall have the right to enter upon the Subdivision at any
reasonable time in order to inspect it and to determine if the Subdivider is in compliance with this
Agreement, and the Subdivider shall permit the City and its representatives to enter upon and
inspect the Subdivision at any reasonable time.
5. Default
Time is of the essence of this Agreement. If the Subdivider shall default in or fail to fully
perform any of its obligations in conformance with the time schedule under this Agreement, and
such default or failure shall continue for a period of ten (10) days after written notice specifying
the default is deposited in the United States mail addressed to the Subdivider at Baxter Meadows
Land Partners, LLC, 1356 North Chancy Lane, Midway, UT 84049 or such other address as the
Subdivider shall provide to the City from time to time, without being completely remedied,
satisfied, and discharged,the City may elect to enforce any of the following specified remedies:
A) The City may, at its option, declare the Financial Security to be forfeited, take
possession of funds secured by the Financial Security pursuant to any lawful means,
and secure the complete construction and inspection of the Improvements. The
City's representative, contractors, and engineers shall have the right to enter upon
the Subdivision and perform such work and inspection, and the Subdivider shall
permit and secure any additional permission required to enable them to do so. In
Sundance Minor Subdivision, Pliase A& C—Improvements Agreement Page 4 of 9
the event that any funds remain from the financial guarantee upon completion of
all Improvements, such funds shall be promptly returned to the Subdivider.
B) The City may enforce any other remedy provided by law.
6. Indemnification
To the fullest extent permitted by law, Subdivider agrees to release,defend, indemnify,and
hold harmless the City, its agents, representatives, employees, and officers (collectively referred
to for purposes of this Section as the City) from and against any and all claims, demands, actions,
fees and costs (including attorney's fees and the costs and fees of and expert witness and
consultants), losses, expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any parry or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Subdivider in regards to the Subdivision; (ii) any negligent, reckless, or
intentional misconduct of any of the Subdivider' s agents in regards to the Subdivision. Such
obligations shall not be construed to negate, abridge, or reduce other rights or obligations of
indemnity that would otherwise exist. The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s)
which would otherwise exist as to such indemnitee(s). Subdivider's indemnity under this Section
shall be without regard to and without any right to contribution from any insurance maintained by
City. Should any indemnitee described herein be required to bring an action against the Subdivider
to assert its right to defense or indemnification under this Agreement or under the Subdivider's
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Subdivider was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s) or any portion(s)thereof.
In the event of an action filed against City or any of the indemnitee(s) resulting from the
City's performance under this Agreement, the City or an indemnitee may elect to represent itself
and incur all costs and expenses of suit.
Subdivider also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except"responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA.
Sundance Minor Subdivision,Phase A & C—Improvements Agreement Page 5 of 9
These obligations shall survive termination of this Agreement and the services performed
hereunder.
7. Attorney Fees
In the event it becomes necessary for either party to this Agreement to retain an attorney
to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be
entitled to reasonable attorney's fees and costs,including fees,salary,and costs of in-house counsel
including City Attorney.
8. Warranty
The Subdivider shall warrant against defects of all Improvements and that these
Improvements are made in a good and workman-like manner for a period of two (2) years from
the date of their written acceptance by the City.
9. Governing Law
This Agreement shall be construed according to the laws of the State of Montana. In the
event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court,
Gallatin County, State of Montana.
10. Modification or Alterations
No modifications or amendment of this Agreement shall be valid, unless evidenced by a
writing signed by the parties hereto.
11. Invalid Provision
The invalidity or unenforceability of any provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
12. No Assignment
It is expressly agreed that the Subdivider shall not assign this Agreement in whole, or in
part,without prior written consent to City.
Sundance Hinor Subdivision, Phase A & C—Improvements Agreement Page 6 of 9
13. Successors
Except as provided in paragraph twelve(12),this Agreement shall be binding upon, ensure
to the benefit of,and be enforceable by the parties hereto and their respective heirs, successors and
assigns.
14. Filing
The Subdivider shall have this Agreement recorded in the Office of the Gallatin County
Clerk and Recorder within ten(10)business days of the signature of the Community Development
Director.
Sundance Minor Subdivision,Pliase A&C—Improvements Agreement Page 7 of 9
SUBDIVIDER
2�.P�la
BY: ilE �tn►T
BAXTER MEADOWS LAND PARTNERS, LLC
TITLE: MANAGE).-
STATE OF UTA 14 )
:SS
County of 2) L�W-r— )
On this r' day of December 2019, before me, a Notary Public of the State of
—,personally appeared�j� ar„e�e c T, known to me to be the subdivider that
executed the foregoing Improvements Agreement, and acknowledged to me that (s)he executed
the foregoing instrument as M of Baxter Meadows Land Partners,
LLC, and acknowledged to me that(s)he executed the same for and on behalf of Baxter Meadows
Land Partners,LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
(Print e Here)
RUSSELL 6 POULSI N Notary Public for the State of
Notary Public-State of Utah
Comm.No,6961/l Residing at 2 V
My Commission Expires on
Aug 18,2021 My Commission Expires: jAy& ( Zoz 1
(Use 4 digits for expiration year)
Sundance Minor Subdivision,Phase A& C-Improvements Agreement Page 8 of 9 !
4
THE CITY OF BOZEMAN
BY: NTARTIN MA SEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this L3 day of�M�2019, before me, a Notary Public for the State
of Montana, personally appeared Martin Matsen, known to me to be the person described in and
who executed the foregoing instrument as Director of Community Development for the City of
Bozeman, whose name is subscribed to the within instrument and acknowledged to me that he
executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day
and year first written above.
(SEAL) ,
PwFM KATHESINE MAINES (P�Name Here)
Notary Public blic for the State of Montana
yY.No7AR/q4.�N' for the State of Montana
j.SEAL ,',= Belgrade,Residing ntana Residing at
My Commission Expires: My Commission Expires:
"• July 22,2020 (Use 4 digits for expiration year)
Sundance Nlinor Subdivision,Phase A & C—Improvements Agreement Page 9 of 9
Sundance Minor Subdivision Improvements Agreement Estimate of Costs
Summary
item Description Amount Estimated Completion
1 Subdivision Sidewalks- Condtion 23 $ 132,300.00 Fall of 2021
2 Sundance Park Improvements $ 207,736.00 Summer 2020
3 Davis Street Frontage Landscape Imp. $ 56,147.00 Summer 2020
4 Phase A Recreation Pathway Improvements $ 153,920.00 Fall of 2021
5 Phase C Recreation Pathway Improvements $ 54,831.00 Fall of 2021
Total $ 604,934.00
150%of estimated costs $ 907,401.00
Sundance Apartments Park
Park Master Plan
Appendix B: Opinion of Probable Cost
opinion of Probable Costs �WGM GROUP
lenciecepe erohltecture
www,wgmgroup.com
Sundance Park 406.728.4611
Project No.160417 log E.Main St.Ste B
Prepared By:LRR Bozeman,MT 59715
July 13,2018
Pleaaa Note.' This Opinion ofprobable COstis based on anticipated installation costs.The Opinion is only that:it
represents the Consultant's bestjudgmentas a design professional.Consultantdoes notguarantee the accuracy of
the Opinlon as compared to actual bids or cost to the Client This is provided for general project budgeting purposes
and will not be a guarantee of actual installation costs If the Client desires a higherlevel of confidence in predicting
anticipated construction cost than that provided in the Opinion,the Client should retain the services Ora professional
costestimator,orsend the documents to bid for this purpose
Phase 1 LandscapkV Probable Costs
tltllt aloft PTk>i; Total
Earthwork 132936 g 0.40 S 53,174
1 Soil Pr aratlon Subtotal 1$ 5,%174
Hardsc E 1500 SF $ 11.00 $ 16,S00
2 Trail:Natural Fires.6'Wide 50o ; 11.00 $
5,500
3 Pavillion Placehoider:Natural Fines Subtotal $ 14500
Landsc a Plantinas 4]E
90 SF 4 0.07 $ 8,210
4 Turf:Lawn Seed 3O EA S 200.00 $ 6'�
5 Trees:Deciduous,Z"Cal B&B of Grow Bag Subtohl S 74,210
Irrigation 1n290 1.00 117,290
SF s
6 Automatic Irrigation System l s iT1,290
Other Material 338 LF 8.45 856
7 E in :Milled Steel to R st 4 EA $ 100.00 400
8 ElecGica1:50-AMP Weather Proof Outlet 15 CY 80.00 $ 1200
9 Muldn:Or anlc C ost Mul 3"D t Gravel 120.00 S 600
10 M :1-1 2"Waslne R 5 CY 3
3" t 30 EA $ 42.00 $ 1260
11 Tree Stage wit:YPakres ofesskx�a 201 Sy $ 1.22 $ 245
12 Fabric t6.561
All
JTotal -207,756
Page 1 of 7
7/13flMS
W:\Prvi�U80a17Wxt\Cost E%&Omei\380417 OPC 100%F Isx
B
Preliminary Opinion of Probable Costs AM J� WGM GROUP
landscape architecture
Sundance Minor Subdivision www.wgmgroup.com
Project No. 180418 406.728.4611
Prepared By: SAM / LRR 109 E. Main St. Ste B
October 11, 2019 Bozeman, MT 59715
Please Note: This Opinion of Probable Cost is based on anticipated installation costs. The Opinion is only that;it
represents the Consultant's best judgment as a design professional. Consultant does not guarantee the accuracy of the
Opinion as compared to actual bids or cost to the Client. This is provided for general project budgeting purposes and will
not be a guarantee of actual installation costs. if the Client desires a higher level of confidence in predicting anticipated
construction cost than that provided in the Opinion, the Client should retain the services of a professional cost estimator,
or send the documents to bid, for this purpose.
Exhibit A: Davis Street Frontage (Phase A &C)
Item
No Description Qty. Unit Unit Price Total
Earthwork
1 JSoil Preparation 1 78301 SF 1 $ 0.50 1 $ 3,915
Subtotal 1 $ 3,915
Hardsca e
2 Sidewalk 5' width (9561f) 4779 SF 1 $ 7.00 $ 33,453
Subtotal 1 $ 33,453
Landscape Plantin s
3 Turf: Lawn Sod (7.5'wide boulevard) 7830 SF $ 0.60 $ 4,698
4 Trees: Deciduous, 2" Cal, B&B or Grow Bag (50'O.C.) 21 EA $ 240.00 $ 5,040
Subtotal $ 9,738
Irrigation
5 Automatic Irrigation System 7830 SF 1 $ 1.00 $ 7,830
6 Well - See Exhibit C $ _ I $ _
Subtotal $ 7,830
Other Material
7 Mulch: Organic Compost Mulch, 3" Depth 1.5 CY $ 100.00 $ 150
8 Tree Stake Kit: Stakes &Straps 21 EA $ 50.50 $ 1,061
9 Weed Barrier: Typar Professional Landscape 21 SY $ 1.50 $ 32
Fabric
Subtotal $ 1,211
ExhibitA Total $ 56,147
Pagel of 3
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W:\Projects\l80418\Docs\Cost Estimates\2019-10-11 180418 Preliminary OPC Revl.xlsx
Exhibit B: Phase A Recreation Pathway Easement
Item Description Qty. I Unit Unit Price Total
No,
Earthwork
1 Isoil Preparation 23516 SF $ 0.50 $ 11,758
Subtotal $ 11,758
Hardscape
2 Class II A Trail: 6' wide, 3" depth natural fines, 1" 7606 SF $ 13.00 $ 98,878
road base
Subtotal $ 98,878
Landscape Plantings
3 Turf: Lawn Seed 23516 SF $ 0.07 $ 1,646
4 Trees: Deciduous, 2" Cal, B&B or Grow Bag (50' 25 EA $ 240.00 $ 6,000
O.C.)
Subtotal $ 7,646
Irrigation
5 lAutomatic Irrigation System 1 235161 SF 1 $ 1.00 $ 23,516
6 lWell 11 LS 1 $ 10,000.00 $ 10,000
Subtotal $ 33,516
Other Material
7 Mulch: Organic Compost Mulch, 3" Depth 2.5 CY $ 100.00 $ 250
8 Tree Stake Kit: Stakes&Straps 36 EA $ 50.50 $ 1,818
9 Weed Barrier: Typar Professional Landscape 36 SY $ 1.50 $ 54
Fabric
Subtotal $ Z 122
Exhibit B Total $ 153 920
Page 2 of 3
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Exhibit C: Phase C Recreation Pathway Easement
Item Description Qty. I Unit I Unit Price Total
No.
Earthwork
1 ISoil Preparation 1 74601 SF 1 $ 0.50 1 $ 3,730
Subtotal 1 $ 3,730
Hardsca e
2 Class II A Trail: 6'wide, 3" depth natural fines, 1" 2365 SF $ 13.00 $ 30,745
road base F
Subtotal $ 30,745
Landscape Plantings
3 Turf: Lawn Seed (7.5' wide boulevard) 7460 SF $ 0.07 $ 522
4 Trees: Deciduous, 2" Cal, B&B or Grow Bag (50' 8 EA $ 240.00 $ 1,920
O.C.
Subtotal $ Z442
Irrigation
5 jAutornatic Irrigation System 1 74601 SF 1 $ 1.00 $ 7,460
6 lWell 11 LS 1 $ 10,000.00 $ 10,000
Subtotal $ 17,460
Other Material
7 Mulch: Organic Compost Mulch, 3" Depth 0.5 CY $ 100.00 $ 50
8 Tree Stake Kit: Stakes &Straps 8 EA $ 50.50 $ 404
9 Weed Barrier: Typar Professional Landscape 8 SY $ 1.50 $ 12
Fabric
Subtotal $ 454
Exhibit C Total 1 $ 54,831 6D
Summary Total
Exhibit A $ 56,147
Exhibit 8 $ 153,920
Exhibit C $ 54,831
Grand Total $ 264,898
Page 3 of 3
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IRREVOCABLE LETTER OF CREDIT
Borrower: Baxter Meadows Land Partners,LLC Lender: First Interstate Bank
2929 W Navigator Drive,Suite 400 Boise Plaza 121
Meridian,ID 83642 401 W Front St
Boise,ID 83702
Beneficiary: CITY OF BOZEMAN
121 N ROUSE AVE
BOZEMAN,MT 59715
NO.:894
EXPIRATION DATE. This letter of credit shall expire upon the close of business on 01-15-2021 and all drafts and accompanying statements or
documents must be presented to Lender on or before that time(the"Expiration Date").
AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower,an Irrevocable Letter of Credit in favor of
Beneficiary for a sum of Seven Hundred Eight Thousand Nine Hundred Fifty-one&00/100 Dollars($708,951.00)(the"Letter of Credit"). 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 other such address that Lender may provide Beneficiary in writing)during regular business hours and accompanied by the
signed written statements or documents indicated below.
WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS
REQUIREMENTS,EITHER SINGLY OR TOGETHER,YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT
CAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY
WITH ITS TERMS AS WRITTEN.
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 Lender's 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.
Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other
document which complies strictly with this Letter 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.
USE RESTRICTIONS. All drafts must be marked"DRAWN UNDER First Interstate Bank IRREVOCABLE LETTER OF CREDIT NO.894 DATED
11-25-2019,"and the amount of each draft shall be marked on the draft. Only Beneficiary 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 are not permitted under this Letter of Credit.
PERMITTED TRANSFEREES. 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 administrator,executor, bankruptcy trustee, receiver,
liquidator,successor,or other representative at law of the original Beneficiary;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 Qudicial,administrative,or executive).
TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee(i)by operation of law or(ii)a third party receiving
transfer from a legal representative,as described above,the documents required for a draw shall include 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.
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.
NONSEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body
having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and
Beneficiary shall be restored to the posi0on 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.
GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and,to the extent not preempted by federal law,the
laws of the State of Idaho without regard to its conflicts of law provisions,and except to the extent such laws are inconsistent with the 2007
Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce,ICC Publication No.600.
This Agreement has been accepted by Lender In the State of Idaho.
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 Lender on or before the Expiration Date unless otherwise provided for above.
Dated:November 25,2019 it
LENDER:
I
FIRST INTERSTATE BANK
II
i
By:
lak itchre,Commer al Relations p Manager 11
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