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HomeMy WebLinkAbout09491ORDINANCE NO. 9491 AN ORDINANCE APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE AND A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO TX HOTELS, LLC, A TEXAS LIMITED LIABILITY COMPANY, RELATING TO THE DEVELOPMENT OF HOTEL ADJACENT TO THE EXPANDED PUEBLO CONVENTION CENTER AND AUTHORIZING THE MAYOR TO EXECUTE SAID CONTRACT AND AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Contract to Buy and Sell Real Estate and the Development Agreement between the City of Pueblo and Pueblo TX Hotels, LLC, a Texas limited liability company (“Company”) both dated June 24, 2019 copies of which are attached hereto, having been approved as to form by the City Attorney are hereby approved. The Mayor is hereby authorized and directed to execute said contractual documents for and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized and directed to perform any and all acts consistent with this Ordinance and the attached contractual agreements to effectuate the purposes of same. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Introduced and initial adoption of Ordinance by City Council on June 10, 2019 . Final adoption of Ordinance by City Council on June 24, 2019 . President of City Council Action by the Mayor: ☒ Approved on June 26, 2019 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-6 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: June 10, 2019 TO: President Dennis E. Flores and Members of City Council VIA: Brenda Armijo, Acting City Clerk FROM: Mayor Nicholas A. Gradisar SUBJECT: AN ORDINANCE APPROVING A CONTRACT TO BUY AND SELL REAL ESTATE AND A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO TX HOTELS, LLC, A TEXAS LIMITED LIABILITY COMPANY, RELATING TO THE DEVELOPMENT OF HOTEL ADJACENT TO THE EXPANDED PUEBLO CONVENTION CENTER AND AUTHORIZING THE MAYOR TO EXECUTE SAID CONTRACT AND AGREEMENT SUMMARY: Attached is a proposed Ordinance approving and authorizing the Mayor to sign a Contract to Buy and Sell Real Estate and a Development Agreement between the City of Pueblo and Pueblo TX Hotels, LLC, a Texas limited liability company (“Company”) relating to the development of a new hotel adjacent to the expanded Pueblo Convention Center. PREVIOUS COUNCIL ACTION: On May 28, 2019, City Council passed an Ordinance approving and authorizing the Mayor to sign a Declaration of Protective Covenants for Lot 4, Historic Arkansas Riverwalk Project Filing No. 3, as amended by Rearrangement of Property Boundaries No. RPB-19-04, County of Pueblo, State of Colorado (“Hotel Site”). BACKGROUND: The Hotel Site consists of an approximately 15,760 square foot parcel of unimproved land located adjacent to the PBR Sports Performance Center and the expanded Pueblo Convention Center. By RFP No. 19-030, the City requested proposals for the purchase of the Hotel Site to be developed as a hotel and/or mixed commercial use. The hotel is required to have a minimum of 100 rooms and to be oriented toward a business / family clientele. Two bids were received in response to the RFP and Company was selected as the successful bidder. Company agrees to complete construction and have the hotel available for occupancy, within three (3) years of the date of the closing of the sale of the property by City to the Company. If Company fails to meet this deadline, Company agrees to pay the City liquidated damages in the amount of $104,000.00. This obligation is secured by a first deed of trust (mortgage) against the property. FINANCIAL IMPLICATIONS: The Hotel Site has an appraised value of $256,000.00. Company has agreed to pay the City $315,000.00 for the property. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, the new hotel property will not be developed. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance and proposed Contract to Buy and Sell Real Estate and proposed Development Agreement. CONTRACT TO BUY AND SELL REAL ESTATE THIS CONTRACT ("Agreement") is made the 24th day of June, 2019, between the City of Pueblo, a Colorado municipal corporation (hereinafter called the "Seller"), and Pueblo TX Hotels, LLC, a Texas limited liability company (hereinafter called the "Purchaser"). 1. Property Defined. The Seller agrees to sell and convey to the Purchaser, and the Purchaser agrees to purchase from the Seller, all that certain plat,piece, and unimproved parcel of land having the following legal description: Lot 4, Historic Arkansas Riverwalk Project Filing No. 3, as amended by Rearrangement of Property Boundaries No. RPB-19-04 dated April 26, 2019, and recorded in the records of the Pueblo County Clerk and Recorder on April 26, 2019, at Reception No. 2137387, Pueblo County, State of Colorado, according to the recorded plat thereof filed in the records of the Pueblo County Clerk and Recorder. also known by street and number as 150 Central Main Street, Pueblo, CO 81003 (the "Property"). The Property shall be conveyed by Special Warranty Deed ("Deed") a form of which, marked as Exhibit A-1, is attached hereto and incorporated herein by reference. The Property shall be conveyed subject to and subordinate to all easements, reservations, restrictions, covenants, limitations, rights-of-way and conditions of record and zoning and subdivision regulations and resolutions of the City of Pueblo and the Permitted Exceptions (as hereinafter defined), which shall be listed as exceptions in Exhibit A-2 to the Special Warranty Deed, subject to satisfaction of the conditions listed in Section 3 of this Agreement. 2. Purchase Price. Seller and Purchaser agree that the total purchase price shall be Three Hundred Fifteen Thousand Dollars ($315,000.00) to be paid as provided in, and subject to, Section 3 below(the "Purchase Price"). 3. Payment of Purchase Price. The Purchase Price for the Property shall be payable as follows: (a) Three Hundred Fifteen Thousand Dollars ($315,000.00) in cash or certified funds payable on the Closing Date (as defined in Section 6 below); (b) As agreed to in that certain Development Agreement between Seller and Purchaser of even date herewith("Development Agreement"), at Closing(as hereinafter defined), Purchaser shall deliver to Seller a duly executed(i)Development Agreement and(ii)Deed of Trust to the Property in the principal amount of One Hundred Four Thousand Dollars ($104,000.00) a form of which, marked as Exhibit A-3, is attached hereto and incorporated herein by reference. Purchaser covenants with and warrants to the Seller that the Deed of Trust shall constitute a first priority lien or encumbrance and that there are and will be no senior liens or encumbrances against the Property. 4. Real Property Taxes. General real property taxes and assessments for tax year 2019, if any, shall be prorated and paid at Closing to the Purchaser on the basis of the 2018 tax year. 5. Title Commitment and Policy. Within ten (10) days of the date hereof and, in any event, at least twenty (20) days prior to the Closing Date, Seller shall order and obtain, and deliver to Purchaser, at Seller's expense, a current commitment for extended coverage title insurance in the amount of the Purchase Price,together with legible copies of all documents listed as exceptions therein, and a current certificate of taxes due with respect to the Property, from a title company selected by Seller, and reasonably acceptable to Purchaser, authorized to issue title insurance in the state of Colorado (the "Title Company"), on the current standard form of extended ALTA Owners Policy(collectively,the"Title Commitment"). The Title Company shall promptly provide copies of any amendments or modifications of the Title Commitment to Purchaser. Purchaser shall have the right to review the Title Commitment and the title documents and notify Seller in writing of any title objections to the title exceptions set forth in the Title Commitment. Seller shall have five (5) days from receipt of notice of such objections within which to eliminate or modify (or agree in writing to so eliminate or modify) any such unacceptable exceptions to the reasonable satisfaction of Purchaser, but Seller shall have no obligation whatsoever to so eliminate or modify any such unacceptable exceptions. In the event that Seller is unable or unwilling to eliminate or modify (or agree in writing to so eliminate or modify) such unacceptable exceptions to the reasonable satisfaction of Purchaser on or before the expiration of said five (5) day period, Seller shall notify Purchaser in writing of such fact within said five (5) day period or be deemed to have so notified Purchaser with respect to all such unacceptable exceptions not theretofore cured upon the fifth (5th) day of said period. In such event, Purchaser shall, prior to the Closing Date either (i) waive such objections and accept title to the Property subject to title exceptions set forth in the Title Commitment(the"Permitted Exceptions"),or(ii)terminate this Agreement by written notice to Seller,whereupon this Agreement shall automatically be terminated and of no further force and effect, except as otherwise expressly set forth herein. At Closing or as soon as reasonably practicable after Closing, the Title Company shall issue and deliver to Purchaser the owner's title insurance policy referred to above (the "Title Policy"), issued by the Title Company insuring Purchaser's title to the Property consistent with the Title Commitment subject only to taxes and assessments for the year of Closing and subsequent years, and the Permitted Exceptions. At Closing, Seller shall pay the premium for the Title Policy. Purchaser may obtain such other endorsements to the Title Policy as Purchaser desires, at the expense of Purchaser, except for endorsements obtained at Seller's cost. Seller shall provide such affidavits or certificates, and pay such expenses, as may be required by the Title Company to remove all liens, including, without limitation, mechanics' or materialmen's liens, as exceptions to the Title Policy. 6. Closing Time and Place. Closing of the transaction contemplated hereby ("Closing") shall occur within 150 days after the execution of this Agreement or as subsequently agreed to by the Parties. Such Closing shall be held at the offices of Stewart Title, 1307 Fortino Blvd., Pueblo, CO 81008 at a date and time as agreed by Seller and Purchaser. Each of the parties hereby authorizes Stewart Title to close this transaction and each agrees to be responsible for one- 2 half(1/2) of the closing fee charged by Stewart Title. 7. Closing Costs. All other costs and expenses incident to this transaction and the Closing thereof shall be paid by the party incurring same. 8. Leases or other Contracts. Seller warrants that there are no leases, contracts or agreements applicable to or affecting the Property, entered into by Seller, and that to the best of Seller's actual knowledge there are no other leases, contracts or agreements entered into by any third party applicable to or affecting the Property, which are or will be in force and effect on the date of Closing. 9. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILTY, FITNESS FOR A PARTICULAR PURPOSE, TITLE(OTHER THAN SELLER'S SPECIAL WARRANTY OF TITLE TO BE SET FORTH IN THE SPECIAL WARRANTY DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION (INCLUDING, BUT NOT LIMITED TO, HAZARDOUS MATERIALS CONTAMINATION), UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE SPECIAL WARRANTY OF TITLE TO BE SET FORTH IN THE SPECIAL WARRANTY DEED, UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS."PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS PARAGRAPH 9 SHALL SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE RECORDING OF THE SPECIAL WARRANTY DEED HEREUNDER. 10. Seller and Purchaser agree that the provisions of this Agreement shall survive Closing and the recording of the Deed. 11. All understandings and agreements heretofore had between the parties hereto are merged into this Agreement and the Development Agreement, which alone fully and completely express their agreement, and this Agreement and the Development Agreement are entered into after full investigation, neither party relying upon any statement or representation, not embodied in this Agreement or the Development Agreement, made by the other. 12. This Agreement may not be changed or terminated orally. 13. The provisions in this Agreement are to apply to and bind, and inure to the benefit of, the heirs, executors, administrators, successors, and assigns of the respective parties. 14. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect. 15. Applicable Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE PERSONAL AND SUBJECT MATTER JURISDICTION OF THE DISTRICT COURT, PUEBLO COUNTY, STATE OF COLORADO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN THE DISTRICT COURT OF PUEBLO COUNTY, STATE OF COLORADO. PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS PARAGRAPH 15 SHALL SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE RECORDING OF THE SPECIAL WARRANTY DEED HEREUNDER. TO THE FULL EXTENT PERMITTED BY LAW, PURCHASER AND SELLER HEREBY WAIVE THEIR RIGHTS TO A TRIAL BY JURY. 16. The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser, and their respective heirs,executors,administrators, successors and assigns only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing. 17. The following schedules or exhibits attached hereto shall be deemed to be an integral part of this Agreement: Exhibit A-1 —Form of Special Warranty Deed Exhibit A-2—Permitted Exceptions Exhibit A-3 —Form of Deed of Trust 18. The section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof. 19. The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto. 20. The failure to enforce any provision of this Agreement shall not operate as a waiver of any preceding or future breach of any such provision or any other provision hereof. 4 21. Neither party shall record this Agreement or any short form memorandum of this Agreement. Executed at Pueblo, Colorado, the day and year first above written. SELLER: City of Pueblo, CO a Colorado municipal corporation ft By: Nicholas . isar • Mayor ATTESTED BY_I_sLiThr U CITY CLERK PURCHASER: Pueblo TX Hotels, LLC a Texas limite• '.►i ility company By: �� Name Suren•ar Singh Title: anaging Member gaidirdIrdliamariadhAllAbollidlidhadIP /` ( SCOTT C NADEL Art ? an y ) A „,-,. r STATE OF �� e, Notary Public-Arizona Mancopa County ) SS. 1 i � !' .tr Notary Id#175427 COUNTY OF`�J I 1 t Cc C, ) 1 • ,9�°• My Comm.Ex.9/1612022 The foregoing instrument was acknowledged before me this day of , 2019 by Surendar Singh as Managing Member of Pueblo TX Hotels,LLC,a Texas limited liability company. Witness my hand and official seal.My commission expires: 9/l a /go P9 ' / [ SEAL] _ _ 11 lt PA N�' ublic DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Development Agreement") is made this 24th day of June,2019 between the City of Pueblo,a Colorado municipal corporation(hereinafter called the "Seller") and Pueblo TX Hotels, LLC, a Texas limited liability company (hereinafter called the"Purchaser"). Recitals WHEREAS,the Seller and Purchaser have entered into that certain contract to buy and sell real estate, of even date herewith, for the purchase and sale of that certain unimproved parcel of land having the following legal description: Lot 4, Historic Arkansas Riverwalk Project Filing No. 3, as amended by Rearrangement of Property Boundaries No. RPB-19-04 dated April 26, 2019, and recorded in the records of the Pueblo County Clerk and Recorder on April 26, 2019, at Reception No. 2137387, Pueblo County, State of Colorado, according to the recorded plat thereof filed in the records of the Pueblo County Clerk and Recorder. also known by street and number as 150 Central Main Street, Pueblo, CO 81003; and WHEREAS, the Seller's Regional Tourism Act ("RTA") Project has facilitated the construction of the Professional Bull Riders("PBR")Sports Performance Center and the expanded Pueblo Convention Center; and WHEREAS, the Property consists of an approximately 15,760 square foot parcel of unimproved land located adjacent to the PBR Sports Performance Center and the expanded Pueblo Convention Center; and WHEREAS,the Seller's RTA Project provided for the construction of a 449-space parking structure which will be available to provide parking for the development of the Property; and WHEREAS, Purchaser has agreed to develop the property as a hotel/mixed use project to help increase the number of visitor overnight stays in the Seller's emerging downtown area. NOW THEREFOR, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Seller and Purchaser agree as follows: 1. Construction of Hotel. Purchaser agrees, at its own expense,to furnish and provide all labor, materials, permits, utility service, tools and equipment to construct a first-class hotel on the Property, in compliance with all applicable laws, codes and regulations. Said hotel shall, at all times after completion of construction,contain of a minimum of one hundred(100)first-class hotel rooms available for occupancy. Purchaser agrees that it shall diligently construct same in an expeditious manner through qualified workers and contractors and shall fully complete all said construction and provide the hotel ready for occupancy, in a broom clean condition, within three (3) years of the date of the closing of the sale of the Property by Seller to Purchaser. Time is of the essence hereof. The aforesaid three-year deadline shall not be extended for any reason, including but not limited to inclement weather, strikes, material shortages, acts of God or the inability of the Purchaser to procure sufficient workers or materials. Any failure by Purchaser to timely commence, prosecute or complete said construction in a timely manner shall be deemed a material default hereunder. This Section 1 of this Development Agreement shall hereinafter be referred to as the "Construction Covenant." 2. Liquidated damages. Seller and Purchaser stipulate and agree as follows: A. A major component of Seller's economic development plan is to make the City of Pueblo a tourist destination and thereby create jobs for local residents in the hospitality industry. As a part of that effort, the Seller's RTA Project has facilitated the construction of the PBR Sports Performance Center and the expanded Pueblo Convention Center. The primary purpose of Seller in entering into this Development Agreement is to reduce the shortage of first class hotel rooms in Seller's downtown area, near the RTA Project. If Purchaser breaches the Construction Covenant, Purchaser and Seller agree that Seller will suffer substantial actual damages in the form of lost or delayed sales and use tax and lodger's tax revenues to the Seller. Such actual damages would accrue over a number of years. B. The parties hereto likewise stipulate that, as of the date of this Development Agreement, it is difficult to ascertain the amount of actual damages that would result from Purchaser's breach of the Construction Covenant to construct the hotel within the three (3) year time frame agreed to in Section 1. Therefore, in the event of such breach, the parties intend to liquidate damages in the amount of One Hundred Four Thousand Dollars ($104,000.00) to be immediately paid by Purchaser to Seller. C. Seller and Purchaser further agree that, as of the date of this Development Agreement, $104,000.00 is a fair and reasonable estimate of the presumed actual damages that the Purchaser's breach of the Construction Covenant would cause Seller. The parties stipulate that said sum is a good faith estimate of actual damages and in no way constitutes a penalty. D. Purchaser and Seller hereby declare their intent to liquidate damages for two reasons. First,electing liquidated damages provides certainty of result should Purchaser fail to timely build a yet-to-be-constructed hotel. Second,the parties wish to forgo the possibility of lengthy and costly litigation over the issue of actual damages. 3. Deed of Trust. The Purchaser's performance of the Construction Covenant, including the payment of One Hundred Four Thousand Dollars ($104,000.00) in liquidated damages, shall be secured by a Deed of Trust encumbering the Property. A form of the Deed of Trust, marked as Exhibit A-3, is attached hereto and incorporated herein by reference. Purchaser covenants with and warrants to the Seller that the Deed of Trust shall constitute a first priority lien or encumbrances and that there are and will be no senior liens or encumbrances against the Property. Seller agrees that upon Purchaser's timely compliance with the Construction Covenant, Seller shall cause said Deed of Trust to be released. 4. Cooperation with the Historic Arkansas Riverwalk Project Authority ("HARP") and the Pueblo Urban Renewal Authority ("PURA"). The Property is located within the boundaries of the Historic Arkansas Riverwalk Project and is also located within a designated urban renewal area created by the Seller. Purchaser hereby agrees to cooperate, in good faith, with HARP and PURA in the development and operation the Property as a hotel/mixed use project, as follows: A. HARP. Purchaser agrees to comply with all covenants governing the construction and use of the hotel/mixed use project, including but not limited to, the timely payment of all Common Area Maintenance ("CAM") fees. B. PURA. Purchaser hereby agrees to negotiate,in good faith,appropriate agreements with PURA, as follows: (i) A parking lease for the use of an agreed upon number of parking spaces located in the adjacent 449-space parking structure constructed by PURA; and (ii) A room blocking agreement to accommodate conventions at the expanded Pueblo Convention Center. 5. Seller and Purchaser agree that the provisions of this Development Agreement shall survive the Closing of the sale of the Property by Seller to Purchaser and the recording of the Special Warranty Deed to the Property. 6. All understandings and agreements heretofore had between the parties hereto are merged into this Development Agreement and the Contract to Buy and Sell Real Estate, which alone fully and completely express their agreement, and this Development Agreement and the Contract to Buy and Sell Real Estate are entered into after full investigation, neither party relying upon any statement or representation, not embodied in this Development Agreement or the Contract to Buy and Sell Real Estate, made by the other. 7. This Development Agreement may not be changed or terminated orally. 8. The provisions in this Development Agreement are to apply to and bind, and inure to the benefit of, the heirs, executors, administrators, successors, and assigns of the respective parties. 9. If any provision of this Development Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Development Agreement shall nonetheless remain in full force and effect. 10. Applicable Law. THIS DEVELOPMENT AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY,AND CONSTRUED IN ACCORDANCE WITH,THE LAWS OF THE STATE OF COLORADO. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE PERSONAL AND SUBJECT MATTER JURISDICTION OF THE DISTRICT COURT, PUEBLO COUNTY, STATE OF COLORADO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS DEVELOPMENT AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN THE DISTRICT COURT OF PUEBLO COUNTY, STATE OF COLORADO. PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS SECTION 10 SHALL SURVIVE THE CLOSING OF THE SALE OF THE PROPERTY BY SELLER TO PURCHASER AND THE SUBSEQUENT RECORDING OF THE SPECIAL WARRANTY DEED. TO THE FULL EXTENT PERMITTED BY LAW, PURCHASER AND SELLER HEREBY WAIVE THEIR RIGHTS TO A TRIAL BY JURY. 11. The provisions of this Development Agreement are and will be for the benefit of Seller and Purchaser, and their respective heirs, executors, administrators, successors and assigns only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Development Agreement. 12. The following exhibit attached hereto shall be deemed to be an integral part of this Development Agreement: Exhibit A-3 —Form of Deed of Trust 13. The section headings appearing in this Development Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof. 14. The parties acknowledge that the parties and their counsel have reviewed and revised this Development Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Development Agreement or any exhibit or amendments hereto. 15. The failure to enforce any provision of this Development Agreement shall not operate as a waiver of any preceding or future breach of any such provision or any other provision hereof. 16. Neither party shall record this Development Agreement or any short form memorandum of this Development Agreement. Executed at Pueblo, Colorado, the day and year first above written. SELLER: City of Pueblo, CO a Colorado municipal corporation By: Nicholas A. radisar Mayor ATTESTED B'& CITY CLERK PURCHASER: Pueblo TX Hotels LC a Texas lim' • . ility company By: �.- Name: urend.r Singh Title: a : :'ng Member lowdeisdrambgandbialloodwaNibdit �,u..,,P SCOTT C NADEL NotaryPublic-Arizona STATE OF ('i 2 a{ q ) 1 z v � c Maricopa County I i Notary Id#175427 SS. 1 ' '9"• My Comm.Ex.9/16/2022 COUNTY OF fru\( t Co e ct ) •The foregoing instrument was acknowledged before me this t� day of J U(1 e , 2019 by Surendar Singh as Managing Member of Pueblo TX Hotels,LLC,a Texas limited liability company. Witness my hand and official seal. 'I My commission expires: 9/i 6(pa Q a r J [ SEAL] A _ `11 It A Notary Public