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HomeMy WebLinkAboutA020 - Irrevocable Letter of Credit No. 11066325 dated May 26, 2005 FIRST �Iri�Y. CITY OF AIMS AMERICAN IRREVOCABLE lrin'jl� BANK 7 LETTER OF FIRST AMERICAN BANK RE: SUNSET RIDGE 1ST ADDITION CREDIT 1530 SOUTH DUFF AMES,IA 50010 (515)223-2033 "LENDER" . 'K DRE$ __. 515 CLARK AVENIIE NO.: 110663.25 . AMES, TA 50010 1'.IEPHCMI�NO. I Nfi�1CAfl(fNiJ(7 BUST.Nil ... Tl©N:1 AI ' HUNZIKER LAND DEVELOPMENT COMPANY, L.L.C. This Letter of Credit shall expire upon the earlier of: 1. the close of business on May 26, 2006 and all drafts and accompanying statementsor documents aDRR>r9Si:.: .. must be pre . sented to Lender on or before that time;or 105 S. 16TH STREET AMES, 2A 50010 2. the day that Lender honors a draw under which the full .; NTICATtON'ND 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 sum of Two Hundred Ninety Eight Thousand One Hundred and no/100 Dollars ($ 298,100.00 ). 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. WARNI NGTO BENEFICIARY:PLEASE EXAMINE THIS LETTEROF CREDITAT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUI REM ENTS,EITHER SING LYOR TOGETHER,YOU SHOULD CONTACT THE CUSTOMER I M M EDIATELYTO,SEE IF THE LETTER OF CREDITCAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDITFOR 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 Letterof Credit once the full amount of credit available under this Letterof 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. Ben ef iciary shall have no recourseagainst Lenderfor any amount paid under this Letterof 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 correctnessof 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 Beneficiaryof the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiarycertifiesthat Beneficiaryhas 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 FIRST AMERICAN BANK IRREVOCABLE LETTER OF CREDIT 0JO66325 May 26, 2005 ,"and the amount of each draft shall be marked on the draft. Only Beneficiary or Beneficiary's Transferee(if this Letterof Credit is transferable)may complete a draft and accompanying statementsor 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 permitted ❑ 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 Letterof Credit to Beneficiary with 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 ❑ If checked,this Letterof Credit may be transferredby Beneficiary upon prior written notice to Lender of the transfer. The Transferee shall be deemed the new Beneficia of this Letterof Credit and the document f the r rY s o e Transferee, drafts required under this Letterof Credit will be pro cessed by Lender der(or any intermediary)without the original Beneficiary's intervention and without any further li ob gatlon of Lender to the original Beneficiary. ® 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 lawto 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 representativeto a third party after express approval of a governmental body(judicial, administrative, or executive). MAST802©ForrrAtion Technologies,Inc. (9/3/98) (800)937-3799 4. TRANSFEREE'S REQUIRED DOCUMENTS When irrd pl..senter 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 Transf e reeunde r 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 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 afterthe 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 Iowa 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 unenforceablefor 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 Beneficiary shall 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 Letterof Credit,no matter where such provision appears within this Letter of Credit. 8. CHOICE OF LAW/JURISDICTION This Letterof Credit is subject to the UCP. This Letterof Credit shall be governed by and construed in accordance with the laws of the State of Iowa , United Statesof 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 _Iowa 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: May 26, 2005 LENDER: FIRST AMERICAN BANK By: 'v Ste e President, Ames ENDORSEMENT OF DRAFTS DRAWN: Amount Amount Date Negotiated By In Words In Figures BYAPPPR`',l -AS FORM r,"John Cfty Attomsy MAST6028©FormAtlon Technologies,Inc. (9/3/98) (800)937-3799 - Citv Clerk's Office 515 Clark Avenue,P.O.Box 811 Ames,IA 50010 =Caring People ,Programs Phone: 515-239-5105 Exceptional Service Fax: 515-239-5142 September 13, 2006 Nyemaster Law Firm 1416 Buckeye, Suite 200 Ames, Iowa 50010 Attention Deb Krauth RE: Sunset Ridge Subdivision, lst Addition Dear Ms. Krauth: At their meeting of September 12, 2006,the Ames City Council passed Resolution No. 06-367 accepting completion of public improvements and releasing the financial security for the above- named Subdivision. Enclosed is Irrevocable Letter of Credit No. 11066325,which has been released. Thank you for your assistance. If you have questions,please call. Sincerely, Diane Voss City Clerk /dry City Clerk's Office Pk 515 Clark Avenue,P.O.Box 811 QwaGry Prog9ram �s P` Ames,IA 50010 Em"°'i°"dServi" Phone:515-239-5105 Fax: 515-239-5142 May 27, 2005 TO WHOM IT MAY CONCERN: I, Jill L. Ripperger, hereby certify that I have this date received from Deborah Krauth, a Letter of Credit in the amount of$298,100.00. Said instrument has been placed on file in the Ames City Clerk's Office, 515 Clark Avenue, for the development of public improvements, specifically, streets and streetlights, in Sunset Ridge Subdivision,First Addition, City of Ames, Iowa. B Y� Jill L. Ripperger Title: DgputyCity Clerk