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Home My WebLink About11924RESOLUTION NO. 11924 A RESOLUTION APPROVING THE AGREEMENT FOR DISPOSITION AND DEVELOPMENT DATED MAY 12, 2009 BETWEEN THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO AND LOT 4 LLC AND AMENDMENT NO. 1 THERETO DATED JUNE 8, 2010 BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Pursuant to requirements set forth in section 3.2 of the Construction Covenants and section 5.4 of the Protective Covenants binding upon and applicable to Lot 4, Block 1, Historic Arkansas Riverwalk Project, Filing One, Pueblo County, Colorado (the "Property"), the City Council hereby approves the Agreement for Disposition and Development dated May 12, 2009 by and between the Urban Renewal Authority of Pueblo, Colorado ("URAP") and Lot 4 LLC, and further approves Amendment No. 1 to Agreement for Disposition and Development dated June 8, 2010 by and between URAP and Lot 4 LLC, copies of each instrument being attached hereto and incorporated herein by reference. SECTION 2. This Resolution shall become effective immediately upon passage and approval. INTRODUCED: June 28, 2010 BY: Vera Ortegon /COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # M-5 June 28, 2010 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION APPROVING THE AGREEMENT FOR DISPOSITION AND DEVELOPMENT DATED MAY 12, 2009 BETWEEN THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO AND LOT 4 LLC AND AMENDMENT NO. 1 THERETO DATED JUNE 8, 2010 ISSUE Should City Council approve the development plan proposed for HARP Lot 4? RECOMMENDATION The Urban Renewal Authority recommends approval. BACKGROUND As the City has sold lots in the HARP subdivision (Filing One), it has imposed Construction Covenants and Protective Covenants which require City approval of all development. Lot 4, Block 1 was sold to the Urban Renewal Authority of Pueblo, Colorado ("URAP") with such covenants. URAP has entered into a development agreement and an amendment thereto with Lot 4 LLC to develop Lot 4 by constructing a three-story commercial building on the property with 12,717 square feet, except that if URAP purchases office space, a fourth floor will be constructed for a total size of approximately 17,342 square feet. The building may be marketed as commercial condominiums. URAP has approved this development plan and has requested City Council approval of the development pursuant to the covenants. FINANCIAL IMPACT Unknown. AGREEMENT FOR DISPOSITION AND DEVELOPMENT (Lot 4) THIS AGREEMENT (the Agreement) is made and entered into as ofA'i ( , 2009, by and between the URI3AN;RFNEWAL.AUTHORITY OF PUEBLO, COLORADO, a body corporate and politme of the State ofColomado (Authority) and 1,ot 4, LLC, a Colorado Limited Liability Corporation (Developer). RECITALS A. Initialized or capitalized, phrases, terms, and words are defined in Section 1.01 of this Agreement. B. On March 22, 2004, by Ordinance No. 7113, as modified on August 23, 2004, by Ordinance No. 7186, the City Council of the City of Pueblo, Colorado (City) approved the urban renewal plan (Plan) for the Pueblo Expanded Urban Renewal Project (Project), which Plan is being carried out by the Authority in cooperation with the City and in furtherance of the objectives of the Colorado Urban Renewal Law (Act). C. On November 14, 2008, the Authority issued a Request for Proposals seeking proposals for redevelopment of certain property in the Urban Renewal Area, including the Property. D. On January 16, 2009, the Developer submitted a response to the request for proposals, which response is hereby accepted by the Authority subject to the terms and conditions of this Agreement. AGREEMENT NOW, TIIEREFORE, in consideration of the premises and the mutual obligations of the Parties and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, each covenants and agrees with the other as follows: SECTION 1. DEFINITIONS; PRELIMINARY MATTERS 1.01 Definitions. In this Agreement, unless a different meaning clearly appears from the context: Act means the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31 of the Colorado Revised. Statutes. Agreement means this Agreement, as it may be amended or supplemented in writing. References to sections or exhibits are to this Agreement unless otherwise qualified. Approve, Approval or Approved means the following: by the Developer - written approval signed by the manager thereof; by the Authority - approval by the Board of Commissioners of the Authority acting by resolution (unless the Authority, by resolution, authorizes an officer or employee to deliver such approval in writing); by the City - approval by City Council acting by resolution (unless the City authorizes an officer or employee to deliver such approval in writing or where the City charter or existing code or ordinance authorizes a City employee or other official to provide such approval); by the HARP Authority - approval by the Board of the HARP Authority acting by resolution (unless the HARP Authority, by resolution, authorizes an officer or employee to deliver such approval in writing). Authority Financing means the financing required to be obtained by the Authority in accordance with Section 8.01. Authority Representative means the person that the Authority authorizes in writing to act as liaison and contact person in administering and implementing the provisions of this Agreement or any successor representative. Certificate of Completion means the certificate described in Section 9 and attached as Exhibit E. Certificate of Occupancy shall have the same meaning as set forth in the Pueblo Municipal Code. City means the City of Pueblo, Colorado. Commence Construction and Commencement of Construction mean the obtaining by the Developer of a building, excavation, grading or similar permit for the construction of any portion of the Improvements and the commencement and diligent prosecution of physical construction operations on the Property in a manner necessary to Complete Construction of the Improvements. Complete Construction and Completion of Construction mean the issuance of a Certificate of Occupancy by the City so that the Improvements described in such certificate may open for permanent occupancy and utilization for their intended purpose. Construction Covenants means the covenants attached as Exhibit F. Construction Documents means the following documents prepared by the Developer and approved by the Authority, the HARP Authority, and the City: Building construction plans, final site plans, detailed landscape plans, and construction plans for the Improvements, including all water and sewer utilities, grading and drainage plans, soils reports, construction plans for all street improvements and construction plans for all other structures proposed for the Property. The Construction Documents will include all signs, fences, berms, enclosures, and lights required by all applicable codes, ordinances, and policies of the City and the Authority. 2 Cooperation Agreement means the Amended and Restated Phase One Cooperation Agreement between the Authority and the City dated March 26, 2007, and any other supplement or amendment thereto. Covenants means the Construction Covenants, the Protective Covenants, and the Tax Revenue, Antidiscrimination, and Elevator Covenants. Default means a default or breach of this Agreement as set forth in Section 13. Developer means Lot 4, LLC, a Colorado Limited Liability Corporation and its successors and assigns as may be permitted hereunder. Developer Financing means the financing for construction of the Improvements described in Section 7.01. Developer Representative means the person that the Developer authorizes in writing to act as liaison and contact person in administering and implementing the provisions of this Agreement or any successor representative. Development Plan means the concept for redevelopment of the Property and construction of the Improvements described in Exhibit B. Effective Date means the earlier of (i) the date upon which this Agreement has been approved and executed by the Board of Commissioners of the Authority; or (ii) Approval of the Agreement by the City. If the Effective Date has not occurred on or before the date specified in the Schedule of Performance, this Agreement shall become null and void in accordance with Section 1.3. Environmental Laws means any and all statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, grants, franchises, licenses or agreements relating to the environment or the Release (as defined in any such Environmental Law) of any Hazardous Substance into the environment. HARP Authority means the Historic Arkansas Riverwalk of Pueblo Authority, an agency and instrumentality of the State of Colorado. Hazardous Substance means any substance, material or waste that is included within the definitions of hazardous substances, hazardous materials, hazardous waste, toxic substances, toxic materials, toxic waste or words of similar import in any Environmental Law. Improvements means all of the improvements that the Developer is required to construct under this Agreement. 3 Letter of Credit means an irrevocable and unconditional bank letter of credit in form and substance reasonably acceptable to the Authority and from a bank acceptable to the Authority. Mortgage means and includes a deed of trust or other instrument creating an encumbrance or lien upon the Property and the Private Improvements as part of the Developer Financing. Origination Fee means the fee described in Section 6.01 payable to the Authority at the time of delivery of the Deed. Parking Agreement means the Agreement between the City and the Developer containing the terms and conditions governing use of parking spaces in the Parking Structure by the Developer. Parking Structure means the parking structure located at Main and D Streets in which approximately thirty (30) parking spaces will be available for use by the Developer pursuant to the Parking Agreement. Party or Parties means the Authority or the Developer or both and their successors and assigns. Plan and Urban Renewal Plan mean the urban renewal plan for the Pueblo Expanded Urban Renewal Project approved by the City Council of the City on March 22, 2004, by Ordinance No. 7113, as modified on August 23, 2004 by Ordinance No. 7186. Project and Urban Renewal Project means the Pueblo Expanded Urban Renewal Project described in the Plan. Property means the real property described in Exhibit A. Protective Covenants means the covenants attached as Exhibit G. Schedule of Performance means Exhibit C, the schedule that governs the times for performance by the Parties. Tax Revenue Antidiscrimination, and Elevator Covenants means the covenants described in Section 7.05 and Exhibit H. Title Company means the title insurance company selected by the Authority. Urban Renewal Area means all of the area of real property, including public rights of way within the boundaries of the Urban Renewal Project as described and delineated in the Plan. 1.02 Representatives. On or before the date specified in the Schedule of Performance the Authority and the Developer shall appoint an Authority Representative and a Developer 4 Representative, respectively, to act as the principal liaison and contact person for each Party in administering and implementing the provisions of this Agreement. Each Party shall give notice of such appointment to the other and of the appointment of any successor representative. 1.03 Effective Date. This Agreement is subject to Approval by the City, the Authority, and the HARP Authority. If the Effective Date has not occurred on or before the date specified in the Schedule of Performance, notwithstanding anything in the Agreement to the contrary, this Agreement shall become null and void and the Parties will have no further rights or duties under the Agreement. SECTION 2. PURPOSE The purpose of this Agreement is to: (a) combat, prevent, and eliminate conditions of blight in the Urban Renewal Area and otherwise implement and further the purposes of the Plan; (b) further the policy of the City to provide or preserve gainful employment for citizens of the City; (c) prevent and combat community deterioration; (d) develop, construct, preserve, and improve the aesthetic quality of public and private improvements in the Urban Renewal Area; (e) afford maximum opportunity, consistent with the sound needs of the City as a whole, for the rehabilitation or redevelopment of the Urban Renewal Area by private enterprise; and (f) redevelopment of the Property by facilitating the construction of the Improvements. Such Improvements are expected to further the purposes and goals of the Plan, and provide extraordinary public benefits for the City and the Authority. SECTION 3. CONDITIONS PRECEDENT 3.01 .Conditions Precedent. The respective obligations of the Parties under this Agreement are conditioned upon the following events, which, unless a different date is specified for a particular condition, must be satisfied or waived by the date for each event set forth in the Schedule of Performance. It is the understanding of the Parties that the Agreement may be terminated by the Party identified in the parentheses if such conditions are not satisfied or waived. a. The City, the Authority, and the HARP Authority Approve this Agreement in accordance with Section 1.03 and the Development Plan (either Party may terminate the Agreement). b. The City and, the Harp Authority Approve this Agreement in accordance with Section 5.01 (either Party may terminate this Agreement). c. The Developer obtains the Developer Financing (either Party may terminate the Agreement). d. The Authority Approves the Developer Financing (either Party may terminate the Agreement). 5 e. The Authority obtains the Authority Financing (either Party may terminate the Agreement). f. The Parties, the HARP Authority, and the City Approve the Construction Documents (either Party may terminate the Agreement). g. The Parties determine, pursuant to soils or environmental tests secured by the Developer, that soils or environmental conditions on the Property are satisfactory to carry out the Development Plan (either Party may terminate the Agreement). h. Title to the Property conforms with the requirements of Section 6.04 (the Developer may terminate the Agreement). i. The Developer obtains title to the Property in accordance with this Agreement (either Party may terminate the Agreement). 3.02 Failure of Conditions. If all of the foregoing conditions precedent have not been satisfied or waived in writing on or before the respective dates listed for each event in the Schedule of Performance, the Party or Parties designated within the parentheses in Section 3.01 may terminate this Agreement by giving written notice to the other. Thereafter this Agreement will terminate and become null and void within thirty (30) days after receipt of such notice of termination unless the Parties have otherwise agreed in writing. 3.03 Effect of Termination. If this Agreement is terminated pursuant to this Section, the Deposit shall be promptly returned to the Developer (if the Authority has obtained return of the Deposit from the City); each Party shall pay its own costs and expenses related to this Agreement; and this Agreement shall be null and void and of no effect; and no action, claim or demand may be based on any term or provision of this Agreement. In addition, the Parties agree to execute a mutual release or other instruments reasonably required to effectuate and give notice of such termination. SECTION 4. DEPOSIT 4.01 Deposit. In accordance with the Schedule of Performance, the Developer shall deliver to the Authority and shall maintain in accordance with the Agreement, a good faith deposit (the Deposit) in the form of a Letter of Credit or a certified check (at the option of the Authority and the City). The Deposit shall be used by the Authority as (a) earnest money for acquisition of the Property from the City, (b) to secure both the performance of the Agreement by the Developer and (c) to pay, in part, the damages to be incurred by the Authority in the event of default by the Developer, including, without limitation, administrative and Project costs incurred in connection with this Agreement. The amount of the Deposit is Five Thousand Dollars ($5,000.00). The Authority's interest in the full amount of the Deposit shall be a security interest, superior to the claims of all other parties, including, without limitation, any lienholder, assignee, trustee in bankruptcy or any other creditor or person claiming by, through or under the 6 Developer. If the Deposit is in the form of a Letter of Credit and the Developer fails to provide a satisfactory substitute Letter of Credit at least thirty (30) days prior to the expiration date (if any) of any Letter of Credit previously delivered, the Authority or the City may draw the full amount of the Letter of Credit and hold the proceeds thereof as the Deposit. The proceeds of such draw shall be deposited in a federally- insured interest - bearing account, and all interest earned thereon shall be added to and become part of the Deposit. 4.02 Return of Deposit. Provided (a) the Deposit is returned to the Authority by the City and (b) the Developer first achieves Completion of Construction of all of the Improvements and obtains a Certificate of Completion from the Authority in accordance with Section 9, the Deposit will be returned to the Developer, and the Developer shall have no further obligation to provide any further deposits to the Authority. If the City retains the Deposit pursuant to the agreement by the Authority to acquire title to the Property, the Deposit shall become the sole and exclusive property of the City and the Developer shall not be entitled to return of the Deposit under any circumstance, including, without limitation, upon Completion of Construction of the Improvements. SECTION 5. ACQUISITION; PREPARATION OF PROPERTY 5.01 Acquisition; Temporary Use of Property. The Authority will acquire title to the Property from the City on or before the dates specified for each in the Schedule of Performance. a. The Authority shall assign the Deposit to the City as earnest money for the purchase of the Property and shall negotiate in good faith for return of the Deposit to the Developer in accordance with Section 4.02 upon Completion of Construction of the Improvements. b. The Authority may temporarily rent or lease the Property, or any part thereof, to third parties pending disposition of the Property pursuant to the terms of the Agreement; provided, that any such temporary use shall not unreasonably interfere with any tests, surveys and other pre - Closing work that the Developer may need to perform on the Property. Any rentals, fees, or other income from such interim use shall be the sole and exclusive property of the Authority. 5.02 Condition of Property; "As -Is" Nature of Sale. The buildings that formerly existed on the Property have been demolished and no demolition and clearance shall be required of the Authority. The Authority is not responsible for the surface or subsurface condition (including fill material) of the Property. The Authority makes no representation or warranty with respect to the deposit or existence of any Hazardous Substance in or upon the Property. The Developer further acknowledges and agrees that to the maximum extent permitted by law, the sale and transfer of the Property is made on an "AS IS" condition and basis with all faults. The Developer and anyone claiming by, through, or under Developer hereby fully and irrevocably releases the Authority, the City; the HARP Authority, their Commissioners, Councilpersons, employees, representatives, and agents from any and all claims that the Developer may now have 7 or hereafter acquire against any of the foregoing parties for any cost, loss, liability, damage, expense, claim, demand, action, or cause of action arising from or related to any defects, errors, omissions or other conditions, including environmental matters, affecting the Property or any portion thereof. It is understood and agreed that the Purchase Price set forth in this Agreement has been adjusted by prior negotiation to reflect that all of the Property is sold and conveyed by the Authority and purchased by the Developer subject to the foregoing provisions. 5.03 Zoning; Replatting, and Dedications. The Property is currently zoned to accommodate the development and construction of the Improvements and uses contemplated hereunder in accordance with the Schedule of Performance. The Parties covenant and agree that they will not seek any zoning changes that interfere with such construction or otherwise preclude construction of the Improvements. The Authority is not requiring the Developer to replat or resubdivide the Property, but if the City requires such action, the Developer with the support and cooperation of the Authority, shall replat and resubdivide all or a portion of the Property, as determined by the City. The Developer shall dedicate, as appropriate, all easements and rights of way required to properly carry out the Development Plan. The Authority shall dedicate as appropriate all easements and rights of way for the above stated purposes with respect to any property owned by the Authority. 5.04 Utility Service. The Developer shall have responsibility for designing, relocating and constructing all utility facilities and lines within the Property or to otherwise provide or to assume responsibility for securing from public utilities all utility service required to construct and service the Improvements. The Authority believes that utilities are present in streets and rights of way adjacent to the Property and are adequate to accommodate the Improvements. The Developer will request, receive and tender to the Authority written confirmations from the City and all appropriate public utility companies including, without limitation, water, sewer, gas, electric, telephone and storm sewer, that such facilities are available within the time provided in the Schedule of Performance for Commencement of Construction of the Improvements. 5.05 Access to Property. The Authority shall permit representatives of the Developer to have access to any part of the Property at all reasonable times for the purpose of obtaining data and making tests or surveys necessary for Developer to carry out the Agreement. After the Closing and prior to issuance of the Certificate of Completion, the Developer shall permit representatives of the Authority, the HARP Authority, and the City access to the Property and the Improvements at all reasonable times that they deem necessary for the purpose of carrying out or determining compliance with the Agreement, the Urban Renewal Plan, or any City code or ordinance, including, without limitation, inspection of any work being conducted on thereon. No compensation shall be payable to the Parties, nor shall any charge be made in any form by any Party for the access provided in this section. A Party entering upon the Property pursuant to this section shall restore the Property to its condition prior to any tests or inspections made by such Party and shall indemnify and hold harmless the Party owning the affected part of the Property for any loss or damage or claim for loss or damage (including reasonable legal fees) resulting from any such entrance, tests and surveys. 5.06 Soils and Environmental Tests. As between the Parties, the Developer is responsible for compliance with all Environmental Laws as they apply to the Property. Within the times specified in the Schedule of Performance, the Developer shall complete all soils and environmental tests on the Property as it or its lenders may require in connection with the Agreement. Copies of all soils reports and environmental surveys obtained on the Property shall be provided without charge to the Authority by the Developer. 5.07 Temporary Signage. The Authority will allow the Developer to place a temporary sign or signs (as approved by the City) on appropriate parts of the Property for marketing purposes. SECTION 6. DISPOSITION; PURCHASE PRICE 6.01 Disposition of the Property. At the time specified for the closing (the Closing) in the Schedule of Performance and subject to the terms, covenants and conditions of the Agreement, the Authority shall convey the Property to the Developer in consideration of the uses, restrictions, covenants, conditions, and obligations assumed by the Developer and no additional monetary consideration, which constitutes the fair value of the Property as hereby determined by the Authority in accordance with the Act; provided, however, at the Closing and as a condition precedent to delivery of the Deed, the Developer shall pay to the Authority an Origination Fee of Four Thousand Two Hundred Seventy Dollars ($4,270.00). 6.02 Form of Deed. At the Closing, title to the Property will be conveyed by the Authority to the Developer by special warranty deed in the form attached as Exhibit D (the Deed). Such conveyance shall be subject to all the terms, conditions and requirements of the Agreement, the Covenants, and title to the Property shall be in the condition required by Section 6.04. Such conveyance shall be subject to the condition subsequent required by Section 13.05, and to all other conditions, covenants and restrictions set forth or referred to elsewhere in the Agreement. 6.03 Title Insurance. In accordance with the Schedule of Performance, the Authority shall provide Developer with a standard ALTA form commitment for owner's title insurance (the Commitment) for the Property in the amount of the Purchase Price issued by the Title Company and certificates of taxes due issued by the Treasurer of Pueblo County showing the current status of all taxes and assessments due or accruing on the Property, together with legible copies of all recorded title exceptions referred to in the Commitment. The Title Company shall promptly deliver copies of the Commitment, Commitment updates and title documents adverted to within the Commitments to the Developer and the Authority. a. Commencing on the date the Commitments and related documents (including any subsequent endorsements that add any exceptions to title) are delivered to the Developer, the Developer shall have thirty (30) days to review the Commitment and any endorsements thereto and approve or disapprove any matter that does not conform with Section 6.04. If the Developer disapproves any such matter affecting title to the Property, the Developer, 9 within said 30 -day period, shall notify the Authority in writing of such defect. The Authority shall have thirty (30) days from the date of such notice to correct such defect. If, upon the expiration of said 30 -day period, the Authority has not corrected any such title defect to the Developer's reasonable satisfaction, or, in the case of a defect unacceptable to the Developer, if such defect cannot be corrected in such time, and the Authority has not commenced and is not pursuing reasonable action to cure or correct such defect, the Developer may terminate the Agreement, and the Deposit and interest earned thereon, if any, shall forthwith be returned to Developer by the Authority. b. If the Developer fails to notify the Authority of any defect in title as herein required, title shall be deemed acceptable, and the Agreement shall remain in full force and effect. c. The Title Company shall provide to both parties, at least five (5) days prior to the Closing, an updated Commitment and a written agreement assuring the Developer that the Title Company will insure against matters affecting title in violation of the Agreement (which have not been previously waived by Developer) and that came of record or are otherwise discovered (and which are not due to the activities of Developer) since the date of the last Commitment and the date upon which the Authority delivers the Deed and the time of the recording of the Deed. It shall not be necessary for the Developer to object to any title matters to which the Developer has previously objected that appear on any subsequent Commitment update. Such items shall be deemed to be a violation of this Agreement and subject to the cure provisions of this Agreement as of the date of the original objection by the Developer. 6.04 Condition of Title. The Authority shall convey to the Developer fee simple marketable title to the Property, subject to the following provisions. Title to the Property shall be free and clear of all liens, defects and encumbrances, except those arising by reason of: (a) the Agreement, (b) the Urban. Renewal Plan, (c) restrictions, reservations, defects and rights of way of record that do not unreasonably interfere with the Development Plan, (d) those defects approved or accepted by the Developer, (e) easements for existing utilities that will continue in use under, and do not unreasonably interfere with, the Development Plan, (f) the Authority Financing, unless such provisions render title to the Property unacceptable to Developer, (g) the Covenants, and (h) the Parking Agreement, if applicable. 6.05 Time and Place of Closing. The Closing shall take place at the time specified in the Schedule of Performance or upon such earlier date as the parties may agree in writing. The Closing shall take place at the office of the Title Company, unless the parties agree otherwise in writing. 6.06 Recordation of Deed and Covenants. After delivery by the Authority, the Developer shall promptly record the Deed with the Clerk and Recorder for Pueblo County, Colorado. The Developer shall pay all recording costs, including the state documentary fee. The Authority shall pay the cost of recording the Parking Agreement and those Covenants that are not yet recorded, all of which shall be recorded prior to the Deed. 10 6.07 Title Insurance Policies. Promptly after recordation of the Deed, the Title Company shall issue the title insurance policy in accordance with the Commitment. The Authority shall be responsible only for payment of costs associated with the issuance of the Commitment. The Developer shall be responsible for all costs of title insurance commitments, policies or endorsements required by the Developer (including any owner's policy) or its mortgagee in connection with the Developer Financing. The Developer shall provide the Authority with a copy of all title insurance policies and endorsements issued to the Developer and its mortgagees. 6.08 Special District, Disclosure (Required by statute). SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. SECTION 7. OBLIGATIONS OF THE DEVELOPER 7.01 Developer Financing. In accordance with this Agreement, including Exhibit C, the Developer agrees to provide and obtain Approval of the Developer Financing by the Authority. The terms of the Developer Financing must be consistent with the requirements of this Agreement and adequate to Complete Construction of the Improvements in accordance with this Agreement. Subject to obtaining Developer Financing, the Developer represents and agrees that it has the financial and legal ability and can bear the economic risk of financing and achieving Completion of Construction of the Improvements, the costs of which are to be paid in accordance with the terms and conditions of this Agreement. 7.02 Design and Construction of the Improvements. The Developer agrees to assume the responsibility for obtaining and reviewing all information that the Developer deems necessary or desirable in connection with its obligations under this Agreement. The Developer agrees to construct the Improvements in accordance with this Agreement. The Developer, subject to the Approval of the Authority, shall have sole responsibility for the design, development and construction of the Improvements, including without limitation, design, construction, supervision, selection and supervision of any architects, engineers, and consultants. a. In accordance with the Schedule of Performance, the Developer shall prepare and obtain the Approval of the Authority, the HARP Authority, and the City of the 11 Development Plan and all Construction Documents related to construction of the Improvements. b. The Developer shall Commence Construction and Complete Construction of the Improvements on or before the dates specified for each in the Schedule of Performance. All such construction requirements shall conform with all applicable laws, codes, ordinances, policies, and this Agreement, including, without limitation, Section 7.07. 7.03 Restrictions on Assignment and Transfer. The Developer shall not assign all or any part of or any interest in this Agreement or the Property without the prior written Approval of the Authority and the HARP Authority, which Approval shall not be unreasonably withheld, conditioned or delayed. Leases of retail space in the Improvements in the ordinary course of the business of the Developer shall not be deemed to be a transfer for the purposes hereof. For the purposes of this Agreement, transfer shall include a change in the identity of the parties in control of the Developer. The Developer shall promptly notify the Authority of any and all changes whatsoever in the identity of the parties in control of the Developer, or the degree thereof. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. The provisions of this Section shall terminate upon issuance of a Certificate of Completion by the Authority. Approval of a transfer by the Authority shall not relieve the Developer of its obligations hereunder unless the Authority agrees in writing. 7.04 Parking Agreement. On or before the date specified in the Schedule of Performance, the Developer shall prepare and secure the Approval of the Authority and the City of the Parking Agreement. The Parking Agreement will provide for the use of approximately thirty (30) parking spaces in the Parking Structure by the Developer on terms mutually agreeable to the Parties and the City. Subject to concurrence of the City, the Developer shall pay for such parking spaces in accordance with the following schedule: until the first anniversary of the recording of the Certificate of Completion: no charge. Thereafter, commencing on the first anniversary of the recording of the Certificate of Completion, the charge shall be 15% of the full standard annual rate for parking in the Parking Structure as may be imposed by the City, the Authority, or any successor entity of either the City or the Authority; thereafter, commencing on the second anniversary of the recording of the Certificate of Completion, the charge shall be 30% of the full standard annual rate for parking in the Parking Structure as may be imposed by the City, the Authority, or any successor entity of either the City or the Authority. Thereafter the charge that Developer will be required to pay for the 30 parking spaces shall be increased on each such anniversary date by an additional 15% of such full standard annual rate until the Developer is paying 100% of such full standard annual rate. The forgoing rates shall apply only to the original 30 parking spaces allocated to the Developer by this Agreement. If the Developer desires to lease or rent more than 30 parking spaces in the Parking Structure, it shall pay the full standard annual rate for such additional parking spaces, subject to availability and approval of the Authority. The Authority agrees that the Developer may fulfill any additional parking requirements required by City Code by using parking spaces in the Parking Structure in addition 12 to the 30 parking spaces described above on the same basis and subject to the same requirements as members of the general public. 7.05 Tax Revenue, Antidiscrimination, and Elevator Covenants. The Developer covenants and agrees that it will pay all ad valorem property taxes when and as they come due on the Property and the taxable Improvements thereon and will provide the Authority with a report of the amount of such taxes and the date of payment within ten (10) days of such payment. The Developer shall insert a similar requirement in all sale, lease, or transfer documents affecting the Property and the Improvements. The Developer further agrees that, based on the projected use of the Property contemplated by this Agreement, the Authority is relying upon receipt of not less than Fifteen Thousand Dollars ($ 15,000) each year in property tax increment revenue from the Property and the taxable Improvements constructed thereon (the Minimum Annual Authority Tax Receipts). The Tax Revenue, Antidiscrimination, and Elevator Covenants shall contain a provision that until the fourteenth (14th) anniversary after Completion of Construction of the Private Improvements, the Authority will calculate the actual amount of allocated property tax increment revenues received by the Authority each year from the Property and the taxable Improvements. In any year that the total of such receipts is less than the Minimum Annual Authority Tax Receipts as calculated by the Authority, the Authority shall notify the Developer in writing of the difference in amount between the Minimum Annual Authority Tax Receipts and the amount actually received by the Authority (the Deficiency), and, unless the Authority otherwise agrees in writing, within ninety (90) days after receipt of notice of the Deficiency, the Developer shall pay an amount equal to the Deficiency to the Authority. 7.06 Approval of Plans; Progress Reports. The Improvements shall be constructed in accordance with all applicable laws, ordinances, standards and policies. The Developer shall prepare, submit to, and secure Approval of the Construction Documents from the Authority, the HARP Authority, and the City within the time specified in the Schedule of Performance. Until Completion of Construction of the Improvements, the Developer shall make reports in such detail and at such times as may reasonably be requested by the Authority, the HARP Authority, or the City, as to actual progress of the Developer with respect to the Commencement of Construction, the progress of construction and the Completion of Construction of the Improvements. 7.07 Damage Repair. Notwithstanding any language in any agreement to the contrary, prior to Completion of Construction of the Improvements, the Developer shall repair any damage to improvements, including public improvements located outside of the boundary lines of the Property, caused by the Developer (or contractors, agents, employees, or other parties acting for or on behalf of the Developer) during construction of the Improvements, including, without limitation, damage to public streets and rights of way and to any improvements installed or owned and /or maintained by the HARP Authority. Developer shall not be deemed to have achieved Completion of Construction and the Authority shall not deliver a Certificate of Completion to the Developer unless and until all such repairs have been completed and Approved by the City, the HARP Authority, and the Authority. 13 SECTION 8. OBLIGATIONS OF THE AUTHORITY 8.01 Authority Financing. Within the time specified in the Schedule of Performance, the Authority shall make reasonable good faith efforts to obtain the Authority Financing in such amounts and on such terms and conditions as determined and Approved by the Authority in its sole discretion. 8.02 Reimbursement for Elevator. The Developer's obligation to construct the Improvements includes construction of an elevator (the Elevator) on the interior of the principal building described in the Development Plan. Detailed plans and specifications for the Elevator shall be included in the Construction Documents and subject to all Approvals required for Commencement of Construction and Completion of Construction of the Improvements. a. Subject to such Approval and to receipt of funds as part of the Authority Financing, in an amount up to, but not more than Forty Thousand Dollars ($40,000.00) for construction of the Elevator will be reimbursed by the Authority to the Developer upon receipt of documentation from the City approving the elevator for use by the public. The Elevator shall be owned, operated, and maintained in good working order at all times by the Developer and its successors in interest in accordance with Exhibit H. b. To the fullest extent permitted by law, the Developer for itself and for its successors in interest agree to indemnify, protect, defend, and hold harmless the Authority, the City, the HARP Authority, their Commissioners, Councilpersons, employees, representatives, and agents (the Indemnified Parties) from and against any and all liabilities, causes of action, suits, damages, losses, costs (including, without limitation, attorney fees), and any and all claims therefore, arising out of injury to or death of any person whatsoever or damage to property of any kind that may arise from the design, construction, ownership, operation, or maintenance of the Elevator. This indemnification shall not be construed to eliminate or reduce any other indemnification or right the Indemnified Parties may have at law or in equity. SECTION 9. CERTIFICATE OF COMPLETION 9.01 Completion of Construction of Improvements. Promptly after Completion of Construction of the Improvements and compliance with the provisions of Section 7.07 in accordance with the Agreement, the Authority will furnish the Developer a Certificate of Completion in the form attached as Exhibit G. The Certificate of Completion shall be a conclusive determination of satisfaction and termination of the agreements and covenants in the Agreement and the Deed with respect to the obligations of the Developer to construct the Improvements and the dates for the beginning and completion thereof. The Developer shall be entitled to return of the Deposit when it has achieved Completion of Construction of all of the Improvements, if the Deposit has been returned to the Authority by the City. 9.02 Recordation and Notice. The Certificate of Completion shall be in such form as will enable it to be recorded among the real estate records of Pueblo County, Colorado. If the 14 Authority shall refuse or fail to provide the certification in accordance with the provision of this section, the Authority shall, within thirty (30) days after written request by the Developer, provide the Developer with a written statement, indicating in what respect the Developer has failed to Complete Construction of the Improvements in accordance with the Agreement or is otherwise in Default, and what measures or acts will be necessary, in the reasonable opinion of the Authority, for the Developer to take or perform in order to obtain such certification. Approval for delivery of the Certificate of Completion shall not be unreasonably withheld. SECTION 10. INSURANCE At all times while the Developer is engaged in preliminary work on the Property or adjacent streets and during the period from the Commencement of Construction until Completion, of Construction of the Improvements, the Developer shall carry and, upon request, will provide the Authority with proof of payment of premiums and certificates of insurance as set forth in the Construction Covenants. All such insurance policies shall be issued by responsible companies selected by the Developer, subject to the reasonable Approval of the Authority, the HARP Authority, and the City. The Developer shall deliver to the Authority, the HARP Authority, and the City policies or certificates evidencing or stating that such insurance is in force and effect. Each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to the Developer and to the Authority, the HARP Authority, and the City at least thirty (30) days before the date the cancellation or modification becomes effective and shall name the Authority, the HARP Authority, and the City as additional insureds, specifying that the insurance shall be treated as primary insurance. SECTION 11. REPRESENTATIONS AND WARRANTIES 11.01 Representations and Warranties by the Authority. The Authority represents and warrants as follows: a. The Authority is an urban renewal authority duly organized and existing under applicable law and has the right, power, legal capacity, and the authority to enter into the Agreement and has authorized the execution, delivery and performance of this Agreement by proper action of its Board of Commissioners. b. The Authority knows of no litigation or threatened litigation, proceeding or investigation contesting the powers of the Authority or its officials with respect to the Project, this Agreement, or the Improvements that has not been disclosed to the Developer. c. The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (1) conflict with or contravene any law, order, rule or regulation applicable to the Authority or to its governing documents, (2) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Authority is a party or by which it 15 may be bound or affected, or (3) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority; d. This Agreement constitutes a valid and binding obligation of the Authority, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. The Authority will defend the validity of this Agreement in the event of any litigation arising hereunder that names the Authority as a party or which challenges the authority of the Authority to enter into or perform its obligations hereunder. 11.02 Representations and Warranties by the Developer. The Developer represents and warrants as follows: a. The Developer is a l.tc+rrJ) LI/Olurt' Cn organized, validly existing and is in good standing under the laws of the State of Colorado. The Developer has the right, power, legal capacity, and authority and has duly authorized the execution, delivery and performance of this Agreement by proper action of its managers. b. The execution and delivery of this Agreement and such documents and the performance and observance of their terms, conditions and obligations have been duly and validly authorized by all necessary action on its part to make this Agreement and such documents and such performance and observance are valid and binding upon the Developer; c. The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (1) conflict with or contravene any law, order, rule or regulation applicable to the Developer or to its governing documents, (2) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Developer is a party or by which it may be bound or affected, or (3) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Developer; d. The Developer knows of no litigation, proceeding, initiative, referendum, or investigation or threat or any of the same contesting the powers of the Authority, the City, the Developer or any of its principals or officials with respect to this Agreement that has not been disclosed in writing to the Authority; and e. The Developer has the necessary legal ability to perform its obligations under this Agreement and has the necessary financial ability, through borrowing or otherwise, to construct the Improvements subject to the terms and conditions of this Agreement. This Agreement constitutes a valid and binding obligation of the Developer, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. 16 SECTION 12. MORTGAGE FINANCING; RIGHTS OF MORTGAGEES 12.01 Limitation Upon Encumbrance of Property. Prior to the Completion of Construction, neither the Developer nor any successor in interest to the Property or any part thereof shall engage in any financing or any other transaction creating any Mortgage or other encumbrance or lien upon the Property, or the Improvements, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attached thereto, except for the purposes of obtaining funds only to the extent necessary for constructing the Improvements on the Property. Until Completion of Construction, the Developer (or any successor in interest) shall notify the Authority in writing in advance of any financing and the terms and conditions it proposes to enter into with respect to the Agreement. The Developer Financing shall be subject to the written Approval of the Authority after review for compliance with this Agreement. Additionally, the Developer shall promptly notify the Authority of any encumbrance or lien that has been created on or attached to the Property or the Improvements, whether by voluntary act of the Developer or otherwise. 12.02 Mortgagee Not Obligated to Construct. Notwithstanding any of the provisions of the Agreement, prior to Completion of Construction the holder or beneficiary (Holder) of any Mortgage authorized by the Agreement (including any such Holder who obtains title to the Property or the Improvements as a result of foreclosure proceedings, or action in lieu thereof, but not including any other party who thereafter obtains such title from or through such Holder or any other purchaser at foreclosure sale) shall not be obligated by the provisions of the Agreement to construct or complete the Improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in the Deed be construed to so obligate such Holder; provided, that nothing in the Agreement shall be deemed or construed to permit or authorize any such Holder to devote the Property to any other use or to construct any improvements thereon, other than those approved as part of the Development Plan. 12.03 Copy of Notice of Default to Mortgagee. The Authority shall deliver a copy of any notice or demand to the Developer with respect to any claimed breach or default by the Developer under the Agreement. The Authority shall at the same time forward a copy of such notice or demand to the Holder at the last address of such Holder shown in the records of the Authority. 12.04 Mortgagee's Option to Cure Defaults. Prior to Completion of Construction, after any Default referred to in Section 12.03, the Holder shall (insofar as the rights of the Authority are concerned) have the right to cure or remedy such Default and to add the cost thereof to the Mortgage debt and the lien of its Mortgage; provided, that if the Default is with respect to construction of the Improvements, nothing contained in the Agreement shall be deemed to permit or authorize such Holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or complete construction of the Improvements (beyond the extent necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed the obligation to the Authority as follows: Not later than sixty (60) days after expiration of the time given the Developer by the Agreement to cure said Default, the 17 Holder shall give written notice to the Authority of its intention to undertake or continue the construction or Completion of Construction of the Improvements in accordance with the Agreement and shall undertake such work within ninety (90) days after obtaining possession of the Property through foreclosure proceedings or through a deed in lieu of foreclosure; provided, further, nothing herein shall preclude the Authority from exercising its right of re -entry pursuant to Section 13.05 if the Holder fails to diligently proceed with foreclosure proceedings or Completion of Construction of the Improvements. Any such Holder who shall properly Complete Construction of the Improvements shall be entitled, upon written request by such Holder, to a Certificate of Completion from the Authority, but not return of the Deposit, which shall be retained by the Authority. 12.05 Authority's Option to Pay Mortgage Debt or Purchase Property. In any case, where, subsequent to Default by the Developer (or any successor in interest) under the Agreement, the Holder of any Mortgage on the Property: a. Has, but does not exercise, the option to construct or complete the Improvements covered by its Mortgage or to which it has obtained title, and has not acted to protect its right to cure such Defaults in accordance herewith; or b. Undertakes construction or Completion of Construction of the Improvements but does not complete such construction within the period agreed upon by the Authority and such Holder (which period shall in any event be at least as long as the period prescribed for Completion of Construction of the Improvements in the Agreement), and such default shall not have been cured within sixty (60) days after written demand by the Authority to do so (or if such Default cannot be cured in said period, the Holder has failed to commence to cure such Default within such period), the Authority shall have (and every Mortgage instrument made prior to Completion of Construction of the Improvements by the Developer or successor in interest shall so provide) the option of paying to the Holder the amount of the Mortgage debt and securing an assignment of the Mortgage and the debt secured thereby, or, in the event ownership of the Property has vested in such Holder by way of foreclosure or action in lieu thereof, the Authority shall be entitled, at its option, to conveyance to it of the Property upon payment to such. Holder of an amount equal to the sum of: (1) The secured debt at the time of foreclosure or action in lieu thereof plus accrued interest to the date of conveyance (less all appropriate credits, including those resulting from collection, application of rental and other income received during foreclosure proceedings); (2) All expenses with respect to the foreclosure; and (3) The costs (if any) of the Improvements approved by the Authority and made by such Holder following Default, but not including any funds advanced toward construction of that portion of the Improvements related to the Property by the Authority or the City, including those described in Section 8.03. 18 12.06 Authority's Option to Cure Mortgage Default. In the event of a default or breach of the Mortgage debt prior to Completion of Construction of the Improvements by the Developer or any successor in interest, or in any obligations to any Holder, the Authority may at its option cure such default or breach within sixty (60) days after the time provided in any loan document, note, or deed of trust or by law for the Developer to remedy or cure (or if such default cannot be cured in said period, the Authority shall commence to cure such default within such period), in which case the Authority shall be entitled, in addition to and without limitation upon any other rights or remedies to which it shall be entitled by the Agreement, operation of law or otherwise, to reimbursements from the Developer or successor in interest of all costs and expenses incurred by the Authority in curing such default or breach and to a lien upon the Property for such reimbursements; provided, that any such lien shall be subject always to the lien (including liens contemplated because of advances yet to be made) of any Mortgage on the Property authorized by the Agreement. SECTION 13. DEFAULT; REMEDIES 13.01 Default by Developer. Default by Developer under the Agreement shall mean one or more of the following events: a. Failure by the Developer to provide and maintain the Deposit; or b. The Developer, in violation of this Agreement, assigns or attempts to assign this Agreement, the Improvements or any part of the Property, or any rights in the same; or c. There is any change in either the majority ownership of the Developer or in the identity of the parties in control of the Developer that violates this Agreement; or d. The Developer fails to Commence Construction, diligently pursue and Complete Construction of the Improvements as required by the Agreement; or e. The Developer suffers or permits any lien, uncured Default or encumbrance on the Property, or the Improvements, but a lien shall not constitute a Default if Developer deposits in escrow with the Authority sufficient funds to discharge the lien; or f. A Holder exercises any remedy provided by loan documents, law, or equity that creates a materially adverse effect on the Property or the Improvements; or g. The Developer fails to materially observe or perform any other covenant, obligation or agreement required of it under this Agreement or to make good faith efforts to obtain the Developer Financing; and if any Default is not cured within the time provided in Section 13.03 then the Authority may exercise any remedy available under this Agreement. 19 13.02 Default by the Authority. Default by the Authority under the Agreement shall mean the failure of the Authority to materially observe or perform any covenant, obligation or agreement required of it under the Agreement or to make good faith efforts to obtain the Authority Financing. If any such Default is not cured within the time provided in Section 13.03 then the Developer may exercise any remedy available under this Agreement. 13.03 Grace Periods. Upon a Default by either Party, such Party shall, upon written notice from the other, proceed immediately to cure or remedy such Default and, in any event, such Default shall be cured within thirty (30) days (ninety (90) days if the Default relates to the date for Completion of Construction of Improvements) after receipt of such notice, or such cure shall be commenced and diligently pursued to completion within a reasonable time if curing cannot be reasonably accomplished within thirty (30) days, or ninety (90) days if the Default relates to the date for Completion of Construction of the Improvements. 13.04 Remedies on Default. Whenever any Default occurs and is not cured under Section 13.03, the nondefaulting Party may take any one or more of the following actions: a. Suspend performance under this Agreement until it receives assurances from the defaulting Party, deemed adequate by the nondefaulting Party, that the defaulting Party will cure its Default and continue its performance under this Agreement; b. Cancel and rescind the Agreement; c. In the case of the Authority, collect the full amount of the Deposit it is holding and apply it to repay in part its damages, it being agreed by the Parties that such damages shall total not less than the full amount of the Deposit; d. In the case of the Developer, return of the Deposit when and if returned to the Authority by the City; e. In the case of the Authority, withhold the Certificate of Completion; f. Take whatever legal or administrative action or institute such proceedings as may be necessary or desirable in its opinion to enforce observance or performance of this Agreement, including, without limitation, specific performance or to seek any other right or remedy at law or in equity, including damages. 13.05 Revesting Title in the Authority. If subsequent to conveyance of the Property to the Developer and prior to Completion of Construction of the Improvements as certified by the Authority, the Developer suffers or permits a Default that is not cured pursuant to Section 13.03, then, in addition to any other right or remedy under the Agreement, the Authority shall have the right to terminate and re -enter and take possession of the Property and to revest in the Authority any estate conveyed or transferred to the Developer, it being the intent of this provision, together 20 with other provisions of the Agreement, that the conveyance of the Property to the Developer shall be made upon, and the Deed shall contain a condition subsequent to the effect that, in the event of any such uncured Default, the Authority, at this option, may declare a termination in favor of the Authority of the title, and of all rights and interest in and to the Property conveyed by the Deed to the Developer, and that such title, and all rights and interests in and to the Property, shall revest in the Authority; provided, that, notwithstanding anything herein to the contrary, such condition subsequent and any revesting of title as a result, shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way (a) the lien of a Mortgage authorized and permitted by the Agreement, and (b) any rights or interests provided in the Agreement for the protection of the Holder of such Mortgage. 13.06 Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting in the Authority of title to the Property pursuant to Section 13.05, the Authority shall, consistent with its responsibilities under law, use its good faith efforts to resell the Property (subject to the rights of the Holder), as soon and in such manner as the Authority shall find feasible and consistent with the objectives of the Act and the Urban Renewal Plan, to a qualified and responsible party or parties (as determined by the Authority), and subject to approval of the HARP Authority and the City, who will assume the obligations of making or completing improvements to the Property as shall be satisfactory to the Authority, the HARP Authority, and the City, in accordance with the Act and the Urban Renewal Plan. Upon such resale of the Property, the proceeds thereof shall be applied: a. First, to reimburse the Authority for all costs and expenses of any nature whatsoever (including, but not limited to, legal fees and salaries of personnel) incurred in connection with the recapture, repair, management and resale of the Property; an amount equal to such taxes, assessments and water and sewer charges (as determined by the Authority) as would have been payable if the Property were not exempt therefrom because of its ownership by the Authority; the amount of any funds expended by the City and the Authority in discharging or removing any liens or encumbrances levied against the Improvements or the Property due to acts, obligations or Defaults of the Developer or its successors, transferees or contractors, whether such liens are legally enforceable after such re -entry (and nothing in the Agreement shall be construed as a waiver of any statutory or common law exemptions against execution and levy); and any and all expenditures made or obligations incurred by the Authority with respect to the foregoing; and any amounts otherwise owing to the Authority by the Developer or its successors or transferees; and b. Second, to reimburse the Developer up to the amount equal to: (1) Any actual out -of- pocket costs and expenses incurred by it in making any of the Improvements, less the Fair Market Value of the Property, any gains or income withdrawn or made by the Developer from the Agreement, the Property, or the Improvements. 21 (2) Any balance remaining after such reimbursement shall be retained by the Authority as its property. 13.07 Other Rights and Remedies. The Authority and Developer shall have the right to institute such actions or proceedings as either may deem desirable for effectuating the purposes of this Section 13, including the right to execute and record or file among the public land records in the office in which the Deed or other transfer document is recorded a written declaration of the termination of all the right, title and interest of the Developer, and its successors in interest and assigns in the Property. Notwithstanding any language herein to the contrary, the City and /or the HARP Authority may also enforce any of the rights and remedies of the Authority under this Agreement. 13.08 Delays; Waivers. Any delay by either Party in instituting or prosecuting any actions or proceedings or otherwise asserting its right under the Agreement shall not operate as a waiver of such rights or deprive it of or limit such rights in any way; nor shall any waiver in fact made by such Party with respect to any specific Default by the other Party under the Agreement be considered or treated as a waiver of the rights with respect to any other Defaults by the other Party under the Agreement or with respect to the particular Default except to the extent specifically waived in writing. It is the intent of the Parties that this provision will enable each Party to avoid the risk of being limited in the exercise of the remedy provided in the Agreement by waiver, laches or otherwise in the exercise of such remedy at a time when it may still hope to resolve the problems created by the Default involved. 13.09 Enforced Delay in Performance for Causes Beyond Control of Party. Anything in the Agreement to the contrary notwithstanding, for purposes of any of the provisions of the Agreement, neither the Authority nor the Developer, as the case may be, nor any successor in interest, shall be considered in Default of, its obligations with respect to the Agreement or the preparation of the Property for redevelopment, or the Commencement of Construction or Completion of Construction of the Improvements, or progress with respect thereto, in the event of enforced delay in the performance of such obligations due to causes beyond its control and without its fault of negligence, including, but not restricted to, acts of God, acts of the public enemy, acts of the Federal, State or local government, acts of the other Party, acts of third parties (including the effect of any petitions for initiative or referendum), the effect of any condition precedent to any obligation of either Party over which such Party has no control, the effect of litigation, acts of courts, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors or materialmen due to such causes, it being the purpose and intent of this provision that in the event of the occurrence of any such enforced delay, the time or times for performance of the obligations of the Authority or of the Developer with respect to the terms of the Agreement, as the case may be, shall be extended for a period of the enforced delay; provided, that the Party seeking the benefit of the provisions of this section shall, within thirty (30) days after such Party knows of, or should have known by the exercise of reasonable diligence of any such enforced delay, first notify the other Party thereof in writing in the manner provided for herein of the cause or causes thereof, and claim the right to an extension for the period of the enforced delay. 22 13.10 Rights and Remedies Cumulative. The rights and remedies of the Parties to the Agreement are cumulative, and the exercise by either Party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for any other Default by any other Party. SECTION 14. MISCELLANEOUS 14.01 Cooperation Regarding Financing. The Parties agree to cooperate with one another and to provide such reasonable assistance and information as may be required in connection with the Developer Financing and the Authority Financing. Each Party agrees to give favorable consideration to reasonable changes in this Agreement or in related documents that may be requested by prospective lenders, equity investors, bond underwriters or bond counsel. 14.02 Conflicts,, of Interest. None of the following shall have any personal interest, direct or indirect, in the Agreement: A member of the governing body of the Authority, the HARP Authority, or of the City; an employee of the Authority, the HARP Authority, or of the City who exercises responsibility concerning the Project, or an individual or firm retained by the City, the HARP Authority, or the Authority who has performed consulting services in connection with the Project, this Agreement, or the Authority Financing. None of the above persons or entities shall participate in any decision relating to the Agreement that affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. 14.03 Antidiscrimination. The Developer, for itself and its successors and assigns, agrees that in the construction of the Improvements provided for in the Agreement and in the use and occupancy of the Property and the Private Improvements, the Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, disability, marital status, ancestry, or national origin. 14.04 Provisions Not Merged with Deed. None of the provisions of the Agreement are intended to or shall be merged by reason of any Deed transferring possession or title to the Property from the Authority to the Developer or any successor in interest, and such Deed shall not be deemed to affect or impair the provisions and covenants of the Agreement. 14.05 Title of Sections. Any titles of the several parts and sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 14.06 No Third -Party Beneficiaries. Except for the City, the HARP Authority, and specific rights in favor of mortgagees, no third -party beneficiary rights are created in favor of any person not a party to the Agreement. 23 14.07 Venue and Applicable Law. Any action arising out of the Agreement shall be brought in the Pueblo County District Court and the laws of the State of Colorado shall govern the interpretation and enforcement of the Agreement. 14.08 Nonliability of Authority Officials, Agents and Employees. No council member, board member, commissioner, official, employee, consultant, attorney or agent of the Authority, the HARP Authority, or the City shall be personally liable to the Developer under the Agreement or in the event of any default or breach by the City, the HARP Authority, or Authority or for any amount that may become due to the Developer under the Agreement. 14.09 Authority, the HARP Authority, or City Not a Partner. Notwithstanding any language in this Agreement or any other agreement, representation, or warranty to the contrary, neither the Authority, the HARP Authority, nor the City shall be deemed or constituted a partner or joint venturer of the Developer or any contractor or subcontractor performing work on the Property and neither the Authority, the HARP Authority, nor the City shall be responsible for any debt or liability of the Developer, or its managers or members, or such contractor or subcontractor. 14.10 Integrated Contract. It is intended by the parties that the Agreement is an integrated contract and that invalidation of any of its provisions by judgment or court order shall in no way affect any of the other provisions, which shall remain in full force and effect unless the parties otherwise agree to an amendment. 14.11 Counterparts. The Agreement is executed in counterparts, each of which shall constitute one and the same instrument. 14.12 Notices. A notice, demand, or other communication under the Agreement by any party to the other shall be in writing and sufficiently given if delivered in person or if it is delivered by overnight courier service with guaranteed next -day delivery or by certified mail, return receipt requested, postage prepaid, and a. in the case of the Developer, is addressed to or delivered to the Developer as follows: Len- k t t .- t + C u 24 with a copy to: b. in the case of the Authority, is addressed to or delivered to the Authority as follows: Urban Renewal Authority of Pueblo Attention: Michael Tedesco 126'N. Mechanic Street Pueblo, Colorado 81003 with copies to: Paul C. Benedetti 2730 Iliff Street Boulder, Colorado 80305 c. in the case of the IIARP Authority, is addressed to or delivered to the HARP Authority as follows Jack Johnston Executive Director, HARP Authority 200 W. 1 Street, Suite 303 Pueblo, Colorado 81003 with a copy to: Gus Sandstrom Board President, HARP Authority 200 W. 1 s Street, Suite 303 Pueblo, Colorado 81003 or at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the others as provided in this section. 14.13 Good Faith of Parties. In performance of the Agreement or in considering any requested extension of time or in the giving of any approval, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously or unreasonably withhold any approval required by the Agreement. 25 14.14 Exhibits Merged. All Exhibits annexed to the Agreement shall be deemed to be expressly integrated herein. 14.15 Approval of Bond Counsel. The Agreement and each of the other agreements and documents required in connection with the transactions contemplated in the Agreement shall be subject to the approval of the Authority's bond counsel, if required by the Authority. 14.16 Days. If the day for any performance or event provided for herein is a Saturday, Sunday or other day on which either national banks or the office of the Clerk and Recorder of Pueblo County, Colorado, is not open for the regular transaction of business, such day therefor shall be extended until the next day on which said banks or said office are open for the transaction of business. 14.17 Further Assurances. Each Party agrees to execute such documents and take such action as shall be reasonably requested by the other Party to confirm, clarify or effectuate the provisions of this Agreement. 14.18 Certifications. Each Party agrees to execute such documents as the other Party may reasonably request to verify or confirm the status of this Agreement and of the performance of the obligations hereunder and such other matters as the requesting Party may reasonably request. 14.19 Amendments. This Agreement shall not be amended except by written instrument. Each amendment, which shall be in writing and signed and delivered by the Parties, shall be effective to amend the provisions hereof. 14.20 Survival of Representations, Warranties and Covenants. No representations or warranties whatever are made by any Party except as specifically set forth in this Agreement. The representations, warranties and indemnities made by the Parties and the covenants and agreements to be performed or complied with by the respective Parties shall be deemed to be continuing. Nothing in this section shall affect the obligations and indemnities of the Parties with respect to covenants and agreements contained in this Agreement that are permitted or required to be performed in whole or in part after issuance of a Certificate of Completion. 14.21 Minor Changes. This Agreement has been approved in substantially the form submitted to the governing bodies of the Parties. The officers executing the Agreement have been authorized to make, and may have made, minor changes in the Agreement and the attached exhibits as they have considered necessary. So long as such changes were consistent with the intent and understanding of the Parties at the time of Approval by the governing bodies, the execution of the Agreement shall constitute conclusive evidence of the Approval of such changes by the respective Parties. [The rest of this page intentionally left blank] 26 IN WITNESS WHEREOF the Parties lave caused the Agreement to be duly executed as of tile, day first above written, AUTHORITY: THE URBAN RENEWAL AUTFI.OIRITY"OF I'tIEBLO COLORADO ATTEST 1 .r DEVELOPER: By. 27 EXHIBIT A Description of Property! Lot 4, Historic Arkansas Riverwalk Project, Filing One, City of Pueblo, County of Pueblo, State of Colorado A -1 EXHIBIT B Development Plan The Developer shall construct the Improvements which consist of the following: A four story, approximately 20,000 square foot commercial structure located on Lot 4 of the Historic Arkansas Riverwalk of Pueblo. The Improvements shall be constructed in accordance with the requirements set forth in the Agreement and all applicable laws, ordinances, standards and policies. EXHIBIT C Schedule of Performance Number Item or Event Date or Time 1. Effective Date May 15, 2009 2. City Approves Development Proposal 30 days after Item 1 3. Parties appoint Authority Representative and Developer 30 days after Item 1 Representative 4. Developer determines that all utilities are available to 30 days after Item 1 construct and serve Improvements 5. Title Company delivers Commitment to Developer Aug. 15, 2009 6. Developer completes all surveys, studies, and June 10, 2009 environmental tests on the Property 7 Developer submits Schematic Design Drawings to May 15„ 2009 Authority, HARP Authority, and City 8. Developer prepares and secures Approval of Authority, the HARP Authority, and City of the Schematic Design Aug 15, 2009 Drawings and the Construction Documents 9. Developer obtains Authority Approval of Developer Aug 15, 2009 Financing 10. Authority obtains Authority Financing; Closing Sept. 15, 2009 11. Developer undertakes Commencement of Construction Oct. 01, 2009 of the Improvements 12. Developer achieves Completion of Construction of the June 15, 2010 Improvements C -1 EXHIBIT D Special Warranty Deed THE URBAN RENEWAL AUTHORITY OF PUEBLO COLORADO (Grantor), a body corporate and politic of the State of Colorado, whose address is 221 E. "D" Street, Pueblo, Colorado 81003, for the consideration of Dollars ($ .00) and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged, sells and conveys by this deed (the Deed) to a (Grantee), whose address is , Pueblo, Colorado 81003, the real property (the Property) described in Exhibit A, attached to and made a part hereof, with all of its appurtenances and warrants the title to the same against all and every person or persons lawfully claiming or to claim the whole or any part thereof, by, through or under the Grantor, but if: 1. the Grantor records a Demand to Commence Construction of Improvements and the Property shall remain totally unimproved thirty (30) days after the date of such recording; or 2. the Grantor records a Demand to Cure Defects and the Improvements on the Property do not, at the end of thirty (30) days after the date of such recording, comply with the provision of said demand; or 3. the Grantor records a Demand to Diligently Go Forward with Construction of Improvements and thirty (30) days after the date of such recording there has not been compliance with the provisions of said demand; or 4. the Grantor records a Demand to Complete Construction of Improvements and ninety (90) days after the date of such recording there has not been compliance with the provisions of said demand; or 5. the Property shall remain encumbered in any manner whatsoever other than by a mortgage or other security given by the Grantee for the purposes of financing the purchase of the Property and construction of the Improvements thereon at a date thirty (30) days after the date of recording of a written Demand for Removal of Encumbrance by the Grantor (unless the Grantee has recorded written evidence, bearing the Grantor's approval of a procedure for removal of such encumbrance); or 6. the Grantor records Demand to Cure Change in ownership and thirty (30) days after the date of such recording there has not been compliance with the provisions of said demand; then the Grantor shall have the right to re- enter and take possession of the Property and to revest in the Grantor the estate conveyed by this Deed subject only to any mortgage or other security D -1. given by the Grantee for the purposes of financing the purchase of the Property and construction of the Improvements thereon. The Grantee expressly agrees for itself and its successors in interest that the interest so reserved to the Grantor is a right of re -entry for condition broken (the Right of Re- Entry). Such condition subsequent shall be satisfied and the Right of Re -Entry shall be deemed to have been renounced only upon the delivery of a Certificate of Completion in the form of Exhibit B, attached to and made a part hereof, duly executed and acknowledged by the Grantor and filed for record. Such renunciation shall apply only to the property therein described and shall operate to free the designated property from the above condition subsequent and to divest the Grantor of the Right of Re- Entry. Signed and delivered this day of , 200... TIIE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO ATTEST: By Chairman Secretary Accepted and agreed to this _day of , 200 . By: STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200 , b , as Chairman, and , as Secretary of the Urban Renewal Authority of Pueblo, Colorado, a body corporate and politic. My commission expires: WITNESS my hand and official seal.____ Notary Public D -2 EXHIBIT E Certificate of Completion, THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO, a body corporate and politic of the State of Colorado (the Authority), of 126 N. Mechanic Street, Pueblo, Colorado 81003, hereby certifies that all of the improvements (the Improvements) constructed on the real property described in Exhibit A, attached to and made a part hereof, have been satisfactorily completed, and all of the Improvements conform with the uses specified in the Urban Renewal Plan for the Pueblo Expanded Urban Renewal Project, as amended, which was approved and adopted by the City Council of the City of Pueblo, Colorado. This Certificate of Completion shall be a conclusive satisfaction of the obligation of, (the Developer), to construct the Improvements on the real property described in Exhibit A, as required by the special warranty deed (the Deed) dated recorded , at reception no , in the office of the County Clerk and Recorder, Pueblo County, Colorado. The Authority's Right of Re -entry for Condition Broken as reserved in the Deed is hereby terminated as to the real property described in Exhibit A. The condition recited in the Deed has been fulfilled as to such real property. The Authority renounces said right of Re -entry in favor of the Developer, its successors and assigns, to have and to hold the real property described in Exhibit A forever, so that neither the Authority nor any of its successors in interest shall at any time hereafter have, claim or demand any right, title or interest in or to the property described in Exhibit A, or any part thereof, by virtue of the Right of Re -entry for Condition Broken reserved to the Authority in the Deed. Signed and delivered this , day of ,; 200.. THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO ATTEST: By: Chairman Secretary E -2 STATE OF COLOR/WO ) ) COUNTY OF The foregoing instrument was acknowledged before me this day of , 200 by , as Chairman, and , as Secretary of the Urban Renewal Authority or Pueblo, Colorado, a body corporate and politic. My commission expires: WI'FNESS my hand and official seal, Notary Public [-2 EXHIBIT H TAX REVENUE, ANTIDISCRIMINATION, AND ELEVATOR COVENANTS These covenants (the Covenants) are made and entered into this day of 2009, by and between the URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO, a body corporate and politic of the state of Colorado (the Authority) and a (the Developer). Recitals A. On March 22, 2004, by Ordinance No. 7113, as modified on August 23, 2004, by Ordinance No. 7186, the City Council of the City of Pueblo, Colorado (the City) approved the urban renewal plan (the Plan) for the Pueblo Expanded Urban Renewal Project (the Project), which Plan is being carried out by the Authority in cooperation with the City and in furtherance of the objectives of the Colorado Urban Renewal Law (the Act). B. In furtherance of the Act and the Plan, the Developer is undertaking redevelopment of the real property described in Section 1, below (the Property) by constructing thereon certain taxable improvements (the Improvements). The Authority is providing substantial legal and financial support to the Developer to aid in the redevelopment of the Property. Agreement NOW, THEREFORE, in consideration of the premises and the legal and financial support of the Authority related to redevelopment of the Property and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Developer, for itself and its successors and assigns having an interest in the Property for so long as these Covenants are in effect, covenants and agrees with the other as follows: Section 1. Property. The Covenants apply to and run with the title to the following described real property and the Improvements constructed thereon: Lot 4, Historic Arkansas Riverwalk Project, Filing One, City of Pueblo, County of Pueblo, State of Colorado Section 2. Ad Valorem Property Taxes; Payment in Lieu of Taxes. Commencing upon the date that the Certificate of Completion attached to and made a part hereof is recorded H -1 among the land records of the Clerk and Recorder of Pueblo County, Colorado, and continuing for a period of fourteen (14) years thereafter (the Term) the Developer agrees as follows: a. The Developer shall not protest or otherwise contest in any form or manner and at any time the value assigned to the Property and the Improvements by the Assessor of Pueblo County. b. The Developer will pay all ad valorem property taxes when and as they come due on the Property and the Improvements constructed on the Property and will provide the Authority with a report of the amount of such taxes and the date of payment within ten (10) days of such payment. The Developer shall insert a similar requirement in all sale, lease, or transfer documents affecting the Property or such Improvements. c. If, during the Term, the amount of ad valorem property tax revenues received by the Authority in any year falls below Fifteen Thousand Dollars ($15,000) (the Minimum Tax Revenue), as calculated by the Authority, the Authority shall give the Developer (or any such successor owner of the Property and the Improvements) notice of the difference between the Minimum Tax Revenue and the amount actually received by the Authority in any such year that there is a deficiency in the Minimum Tax Revenue (such difference is hereinafter called the Tax Revenue Deficiency). Within ninety (90) days after such notice, unless the Authority otherwise agrees in writing, the Developer (or any such successor or owner) shall pay the Tax Revenue Deficiency to the Authority. Section 3. Antidiscrimination; Elevator. The following covenants shall apply to the Property and Improvements without limitation as to time. a. The Developer, for itself and its successors and assigns, agrees that in the construction and use and occupancy of the Property and the Improvements, the Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, sexual preference, disability, marital status, ancestry, or national origin. b. The Developer's obligation to construct the Improvements include construction of an elevator (the Elevator) in the Improvements. The Authority has provided substantial public funds for design and construction of the Elevator. At all times during regular business hours (as such hours are approved in writing by the Authority) the Elevator shall be open and available for use by the general public. The Elevator shall be owned, operated, and maintained in good working order at all times by the Developer and its successors in interest. c. To the fullest extent permitted by law, the Developer for itself and for its successors in interest agree to indemnify, protect, defend, and hold harmless the Authority, the City, the HARP Authority, their Commissioners, Councilpersons, employees, representatives, and agents (the Indemnified Parties) from and against any and all liabilities, causes of action, suits, damages, losses, costs (including, without limitation, attorney fees), and any and all claims therefor, arising out of injury to or death of any person whatsoever or damage to property of any II -2 kind that may arise from the design, construction, ownership, operation, or maintenance of the Elevator. This indemnification shall not be construed to eliminate or reduce any other indemnification or right the Indemnified Parties may have at law or in equity. IN WITNESS WHEREOF, the Authority and the Developer have caused the Tax Revenue Covenants to be duly executed as of the date first above written. THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO ATTEST: By: Chairman Secretary DEVELOPER: By: 11-3 Certificate of Completion THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO, a body corporate and politic of the State of Colorado (the Authority), of 126 N. Mechanic Street, Pueblo, Colorado 81003, hereby certifies that all of the improvements (the Improvements) constructed on the real property described in Exhibit A, attached to and made a part hereof, have been satisfactorily completed, and all of the Improvements conform with the uses specified in the Urban Renewal Plan for the Pueblo Expanded Urban Renewal Project, as amended, which was approved and adopted by the City Council of the City of Pueblo, Colorado. This Certificate of Completion shall he a conclusive satisfaction of the obligation of (the Developer), to construct the Improvements on the real property described in Exhibit A, as required by the special warranty deed (the Deed) dated recorded at reception no. in the office of the County Clerk and Recorder, Pueblo County, Colorado (the Covenants). The Authority's Right of Re -entry for Condition Broken as reserved in the Deed is hereby terminated as to the real property described in Exhibit A. The condition recited in the Deed has been fulfilled as to such real property. The Authority renounces said right of Re -entry in favor of the Developer, its successors and assigns, to have and to hold the real property described in Exhibit A forever, so that neither the Authority nor any of its successors in interest shall at any time hereafter have, claim or demand any right, title or interest in or to the property described in Exhibit A, or any part thereof, by virtue of the Right of Re -entry for Condition Broken reserved to the Authority in the Deed. Signed and delivered this day of 20 THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO ATTEST: By: Chairman Secretary H -4 STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 200_, by , as Chairman, and as Secretary of the Urban Renewal Authority of Pueblo, Colorado, a body corporate and politic. My commission expires: WITNESS my hand and official seal. Notary Public H -5 1 RESOLUTION NOS D1C)' \3 AUTHORIZING EXECUTION OF AMENDMENT NO. 1 TO THE AGREEMENT FOR DISPOSITION AND DEVELOPMENT WITH LOT 4 LLC WHEREAS, the Urban Renewal Authority of Pueblo, Colorado (the "Authority ") entered into an Agreement for Disposition and Development dated May 12, 2009 (the "Agreement "), with Lot 4 LLC (the "Developer ") in the Pueblo Expanded Urban Renewal Project; and WHEREAS, the Authority and the Developer have agreed to modifications of the Agreement; } and such changes have been incorporated in Amendment No. 1 to the Agreement, attached to and made a part of this Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO THAT: Section 1. The Chairman is authorized to execute Amendment No. 1 to the Agreement for Disposition and Development by and between the Authority and Lot 4 LLC in the form attached to this Resolution. Section 2. This resolution is effective upon its approval by the Authority. ADOPTED this day of June, 2010. —� f t/ j / ?ary L. r •ujillo, Chairs n Se tar iX ➢.Y srt AMENDMENT NO. 1 TO AGREEMENT FOR DISPOSITION AND DEVELOPMENT 2010, b This Agreement ( "Amendment No. 1") is made as of : -lam � y and between the URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO, a body corporate and politic of the State of Colorado (the "Authority ") and LOT 4 LLC, a Colorado limited liability company (the "Developer") (collectively, the "Parties" or individually, a "Party"). Y P Y( " " P )( " Y Y Y )• RECITAL The Authority and the Developer entered into a Redevelopment and Reimbursement Agreement dated as of May 12, 2009 (the "Agreement "). The Parties have determined it is necessary to modify the Agreement in accordance with this Amendment No. 1. AGREEMENT NOW THEREFORE, in consideration of the foregoing the Parties agree as follows: 1. Developer. The name of the Developer in the first paragraph of the Agreement and in the definition of "Developer" on page 3 of the Agreement is changed from "LOT 4, LLC, a Colorado Limited Liability Corporation" to "LOT 4 LLC, a Colorado limited liability company ". This change is not a transfer pursuant to Section 7.03 of the Agreement. 2. Development Plan. Exhibit B to the Agreement, the Development Plan, is deleted in its entirety and replaced by the new Exhibit B, the Development Plan, attached to and made a part of this Amendment No. 1 and the Agreement by this reference. 3. Schedule of Performance. Exhibit C to the Agreement, the Schedule of Performance, is deleted in its entirety and replaced by the new Exhibit C, the Schedule of Performance, attached to and made a part of this Amendment No. 1 and the Agreement by this reference. 4. Effect of Amendment. Except as modified by this Amendment No. 1, the provisions of the Agreement shall remain unchanged and in full force and effect and fully binding on the Parties, their successors and assigns, and the Agreement and this Amendment No. 1 shall be construed together as a single integrated document. The person signing this • Amendment No. 1 on behalf of the Developer represents and warrants that he is fully authorized to execute and bind the Developer to this Amendment No. 1. 1 IN WITNESS WI4EREOF, the Parties hereto have caused this.Arnendment No. 1 to be duly executed and delivered .by theiriespective duly authorized officers.its of the date first above A written. THE URBAN RENEWAL AUTHORITY OF Chd ` ^ 4 41111 , ma LOT 4LIE � . ' - @Y; _ 2 ~ ~~~~~~_~~~�~_-_'~~_�� rX t,. EXHIBIT B Development Plan The Developer shall construct the Improvements which consist of the following: A four -story commercial building containing approximately 17,342 square feet of floor area, provided the Parties enter into an A reement for the Authority to purchase office on the space P g Y p fourth floor. If the Authority does not purchase office space on the fourth floor, the Developer may reduce the building to a minimum of three stories containing approximately 12,717 square feet of floor area. The Improvements shall be constructed in accordance with the requirements set forth in the Agreement and all applicable laws, ordinances, standards and policies. f �ff ti B -1 { ei 0 t 1 r a ip EXHII3IT C Schedule of Performance Number Item or Event Date or Time N. 1. Effective Date May 15, 2009 r4 ti 2. City Approves Agreement June 15, 2009 ti i 3. Parties appoint Authority Representative and Developer June 15, 2009 oi Representative ki 4. Developer determines that all utilities are available to June 15, 2009 construct and serve Improvements 5. Title Company delivers Commitment to Developer August 17, 2009 6. Developer completes all surveys, studies, and June 10, 2010 environmental tests on the Property 7. Developer submits Schematic Design Drawings to November 16, 2009 Authority, HARP Authority, and City 11 8. Developer prepares and secures Approval of Authority, February 22, 2010 the HARP Authority, and City of the Schematic Design I Drawings and the Construction Documents 9. Authority obtains Authority Financing; Closing June 29, 2010 `j 10. Developer obtains Authority Approval of Developer July 13, 2010 Financing I 11. Developer undertakes Commencement of Construction August 13, 2010 of the Improvements 12. Developer achieves Completion of Construction of the May 2, 2011 • Improvements C- 1