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HomeMy WebLinkAbout09952ORDINANCE NO. 9952 AN ORDINANCE APPROVING AN AFFORDABLE HOUSING DEVELOPMENT AGREEMENT BETWEEN FUEL & IRON RESIDENTIAL, LLC, A COLORADO LIMITED LIABILITY COMPANY, AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, there exists a need for affordable housing in the City of Pueblo; and WHEREAS, there exists a need to construct affordable housing in the City of Pueblo; and WHEREAS, the City of Pueblo receives HOME Investment Partnership Grant funds from the U.S. Department of Housing and Urban Development for the creation and retention of affordable housing; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The City of Pueblo Affordable Housing Development Agreement between Fuel & Iron Residential, LLC, a Colorado limited liability company, and the City of Pueblo, a Municipal Corporation, (the “Agreement”) for the development of affordable housing, a copy of which is attached and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. SECTION 2 The $536,680.00 in loan funds are available in Fund 251 and will be dedicated to this Agreement and the associated project in accordance therewith. SECTION 3 The Mayor is hereby authorized, but not required, to execute the Agreement and all associated documents in the name and on behalf of the City of Pueblo, where the Mayor may execute the documents by electronic signature and such electronic signature shall be attributable to the Mayor and the City of Pueblo. SECTION 4 The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance to implement the policies and procedures described herein. SECTION 5 If any section, paragraph, clause, or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the remaining provisions of this Ordinance. SECTION 6. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on June 14, 2021 . Final adoption of Ordinance by City Council on June 28, 2021 . President of City Council Action by the Mayor: ☒ Approved on June 30, 2021 . □ 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-2 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: June 14, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Bryan Gallagher, Director, Housing and Citizen Services SUBJECT: AN ORDINANCE APPROVING AN AFFORDABLE HOUSING DEVELOPMENT AGREEMENT BETWEEN FUEL & IRON RESIDENTIAL, LLC, A COLORADO LIMITED LIABILITY COMPANY, AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: This Ordinance approves the City of Pueblo’s Affordable Housing Development Agreement with Fuel & Iron Residential, LLC for the development of a twenty-eight (28) unit affordable housing rental project known as the Fuel & Iron Development. PREVIOUS COUNCIL ACTION: The City Council has not taken any previous action on this matter. BACKGROUND: In September of 2020, the Department of Housing and Citizen Services issued a Notice of Funding Availability (NOFA) under the HOME Program. Full Plate Management, LLC applied for HOME funds for the development of a 28-unit rental project to be known as Fuel & Iron Development. HOME funds will assist five (5) of the units. This Project is part of a multi-use facility located in the former Holmes Hardware building. The Project will serve households at 30- 60% of the area median income (AMI). The development of the affordable housing is in partnership with the State Division of Housing. Project costs of the residential units are approximately $6.3 million, and are being funded through multiple sources: Total Project Sources - Permanent Financing: Perm Loan Funds (DOH CHIF) $ 3,000,000.00 Loan Funds (DOH HDG) $ 560,000.00 IDF Loan $ 250,000.00 State Historic Tax Credit Equity $ 849,267.00 Federal Historic Tax Credit Equity $ 682,782.00 City of Pueblo HOME Funds $ 536,680.00 Deferred Developer Fee $ 220,000.00 HDG Loan Interest $ 1,849.00 Owner Equity $ 239,498.00 $ 6,340,076.00 FINANCIAL IMPLICATIONS: The City HOME contribution is available in the 251 Fund, and is comprised of HOME grant funds, program income, and City match contributions. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: Not applicable to this Ordinance. RECOMMENDATION: The Department of Housing and Citizen Services recommends approval of the Ordinance. ATTACHMENTS: Attachment 1: City of Pueblo Affordable Housing Development Agreement Attachment 2: Deed of Trust Attachment 3: Promissory Note CITY OF PUEBLO AFFORDABLE HOUSING DEVELOPMENT AGREEMENT (RENTAL DEVELOPM END • This Agreement is made and entered into this /45 day of , 2021 ("Effective Date") by and between the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City"), Full Plate Management, LLC, a Colorado limited liability company (hereinafter referred to as "Developer"), and Fuel and Iron Residential, LLC, a Colorado limited liability company (hereinafter referred to as"Owner"). WITNESSETH, that: WHEREAS, the City has entered into agreements with the U.S. Department of Housing and Urban Development("I IUD"),whereby federal financial assistance may be made available to City on behalf of the Pueblo Consortium ("Consortium"), established under Agreements between City and Pueblo County, Colorado ("County"), as a Participating Jurisdiction for the purpose of expanding the availability of affordable housing pursuant to the HOME Investment Partnerships Act("the Act")at Title II of the Cranston-Gonzalez National Affordable Housing Act,as amended (42 U.S.C. 12701 et seq.), and implementing regulations, including but not limited to those at 24 CFR Part 92; and WHEREAS,in accordance with the provisions of the Act and 24 CFR Sections 92.200 and 92.205,a portion of such financial assistance,subject to de-obligation(and subject to appropriation with respect to any assistance payable out of future fiscal year allotments), may be made available to qualifying entities for the purpose of carrying out specific elements of the participating jurisdiction's housing strategy, including new construction of affordable rental housing; and WHEREAS, Developer has submitted a project proposal for redevelopment and rehabilitation of the second and third floors of a multi-use building located at 400 S. Union Avenue, Pueblo, Colorado. The proposed project provides for the development of rental housing on the second and third floors of the building to create affordable housing in fulfillment of a portion of the City's and Consortium's housing strategy and has been selected to receive a loan for such project; and WHEREAS, Developer has represented to City arid the Consortium that it is a duly qualified for-profit developer which is eligible and willing to undertake its proposed affordable housing project, as set forth in its application, as further amended by this Agreement and the attachments hereto;and WHEREAS, Developer has formed Owner to assemble the financing, acquire a portion of the Property (defined in Section 4(b) below) on which the Project will be constructed, and implement the development plan with Developer's assistance; and 1 COR E/3 522 1 5g.0002:166978652 I WHEREAS,based upon'Developer's representations,the Consortium and the City believe Developer and Owner are capable or can reasonably be expected to become capable of carrying out said project, and City is willing to allocate federal funds as a loan to Owner for investment in housing to be developed, sponsored, or assisted by Developer which will comply with and fulfill said approved elements of City's housing strategy; and WHEREAS, Developer's (and its affiliates) renovation and rehabilitation of the building is expected to generate federal historic Tax Credits in the approximate amount of$2 082,81 I;and WHEREAS, Developer has applied with the State of Colorado for a preliminary reservation of State Historic Tax Credits in the amount of 52,000,000.00 for allocation to Developer's project upon components of the Project being placed in service; and WHEREAS, Developer warrants and guarantees that as of the date of execution of this Agreement, all necessary financing has been secured,a budget and schedule has been established, underwriting has been completed, and construction is scheduled to start within twelve months of the agreement date in accordance with the definition of"commit to a specific local project," 24 C F.R § 92.2; and WHEREAS, the City is duly authorized to enter into this Agreement for and on behalf of the Consortium and to undertake all actions required by this instrument. NOW, THEREFORE, in consideration of the foregoing recitals and the covenants, terms and conditions set forth herein,the parties agree as follows: 1. DEVELOPER SERVICES. (a) Developer shall, directly or indirectly, in accordance with all applicable federal, state, and local laws and regulations, undertake the construction of a twenty-eight (28) unit affordable housing project for low to moderate income households, with five (5) of the housing units being assisted hereunder (the "HOME Units"), in furtherance of the Consortium's housing strategy and as approved by the City. The affordable housing project,as described herein,may be referred to as the "Fuel and Iron Project" or the "Project." Ownership of the Project is to be held by either the Developer or by a limited liability partnership in which Developer or its affiliate acts as the managing member, or by a limited liability company in which Developer is the managing member. Developer shall satisfactorily perform and complete, or cause to be performed and completed, all services and items of work, and the furnishing of all labor and materials encompassed within or reasonably necessary to construct all of the improvements for the Project, and accomplish the tasks and functions described in the Scope of Services attached hereto as Exhibit"A" and incorporated herein by reference, in full compliance with all of the provisions of this Agreement. Before proceeding with the Project, Developer shall furnish City with all reasonable information which City may request concerning the Project, execute all certifications, security instruments required by this Agreement and applicable laws and regulations,demonstrate eligibility of the Project for assistance under this Agreement and the Act, and obtain the written 2 coRE/1522 I 58 0002/166978652 I approval of City's authorized representatives as to the Project, which approval will not be unreasonably withheld. Upon project completion, housing must meet or exceed the minimum property standards required by 24 CFR 92.251. Owner must continue to maintain the housing in compliance with 24 CFR 92.251 during the period of affordability. (b) Developer warrants and represents that(i)it has the requisite authority and capacity to perform all terms and conditions on Developer's part to be performed hereunder; (ii) that it is duly organized as a for-profit limited liability company under the laws of the State of Colorado; (iii)that it is aware of and understands its duty to perform all functions and services in accordance with the regulatory requirements of 24 CFR Part 92 and those identified in the exhibits hereto;and (iv) that it is accepting federal financial assistance hereunder subject to certain mandatory repayment provisions. (c) Time is of the essence hereof. Developer agrees that it shall meet the following deadlines with respect to the Project: (i) Developer shall obtain satisfactory evidence that the Owner has the financial ability to undertake and construct the Project, including proof that it has secured approval for tax credits and obtained loan commitments for a construction loan and the primary loan permanently financing the Project, and furnish such evidence to City, on or before October 15, 2021. (ii) Developer shall obtain commitments for all required loans on or before October 15, 2021 (iii) Developer shall commence construction of the Project not later than November 1, 2021; (iv) Developer shall substantially complete construction of the Project not later than November 1,2072; and (v) Lease-up of the Project shall be accomplished by not later than November 1, 1, 2023. 2. ROLE AND RESPONS[IIILITIES OF THE CITY. Under this Agreement,the City is acting on behalf of the Consortium. Notwithstanding the foregoing,all obligations of Developer under this Agreement shall run directly to City and be-billy enforceable by City and in the name of the City. The City shall designate a representative of the City who will be authorized to make all necessary decisions required of the City on behalf of the City in connection with the performance of this Agreement, approval of the Project to be undertaken by Developer hereunder and the disbursement of funds in connection therewith. In the absence of such a designation,the Mayor shall he deemed as City's authorized representative. 3. FINANCIAL ASSISTANCE AND METHOD OF PAYMENT. 3 C0REJ3522158,0002/166978652 (a) Upon execution of all documents required by City, the City will loan to Owner an amount up to that specified in paragraph(c) of this section as the public investment in the Project assisted under this Agreement. Disbursement of funds to Owner is subject to all of the following requirements, which shall be conditions precedent to payment: (i)that Owner has expended funds after October 15, 2021 for eligible approved expenditures with respect to the Project, (ii) that neither Developer nor Owner are in default of any material provision of this Agreement nor applicable law or regulation,(iii)that either Developer or Owner has timely submitted requests for disbursement detailing the eligible draw-down items in a format approved by City, (iv)that either Developer or Owner has certified with each payment or loan draw-down request compliance with the requirements identified in Exhibit"D"and that all expenditures for which draw-down is sought were made for and in furtherance of the Project and are an eligible use of federal assistance under the Act, and (v) that City has timely received from HUD sufficient federal assistance under the Act to pay the disbursement hereunder. Neither Developer nor Owner may request disbursement of funds under the Agreement until the funds are needed for payment or reimbursement of eligible costs, and the amount of each request must be limited to the amount needed. (b) Payment hereunder is also subject to and may only be disbursed in accordance with HUD regulations including but not limited to those at 24 CFR Part 92, as presently promulgated and as the same may be revised from time to time in the future. All payments received by Owner hereunder arc subject to repayment by Owner, where Owner shall repay all funds that City as a participating jurisdiction would be required to repay as provided in 24 CFR Part 92. If the HOME Units do not meet the affordability requirements or have not been rented to eligible tenants in accordance with Exhibit "A", such failures shall be a default of this Agreement, any related Promissory Note,and the Deed of Trust, and all HOME funds must be returned to City. In case of such default, City may pursue remedies through this Agreement, the Promissory Note, and/or the Deed of Trust. Funds provided hereunder for Project may only be used for development costs, as provided in 24 CFR 92.205(d) and 92.206(a), (c) and(d), where such costs can be separated, and funds are only applied to the units designated for the affordable housing project. Funds committed hereunder meet the requirements of"commit to a specific local project"under 24 CFR 92.504 and 24 CFR 92.2. (c) The aggregate of all payments made hereunder shall not exceed Five Hundred Thirty-Six Thousand Six Hundred. Eighty and No/10t) Dollars (U.S. 5536,680.00). (d) Upon expiration of the term of this Agreement or upon any prior termination, Developer shall transfer to City any funds provided hereunder which are on hand at the time of expiration or termination together with any accounts receivable attributable to the use of funds provided hereunder. 4. TERM OF AGREEMENT; SECURITY. (a) Unless sooner terminated, the term of this Agreement, for purposes of making the loan and undertaking the construction and completion of the Project, shall be the Effective Date through the period of affordability, which is estimated to end November 1, 2042; provided 4 CORE/3522158.0002/!66978M2.1 however, that with the respect to the Project for which Developer and Owner have received financial assistance under and during the tenn of this Agreement, Developer and Owner shall have continuing responsibility to comply with the performance, certifications, repayment, nondiscrimination, affirmative marketing, displacement, relocation, acquisition, labor, conflict of interest, housing affordability compliance, recordkeeping, and other requirements of this Agreement and 24 CFR Part 92 (including without limitation 24 CFR Sections 92.251, 92.252, 92.350, 92.351, 92.353, 92.354, 92.356, 92.359, and 92,508) which shall survive expiration or termination and remain in effect throughout the required full period of affordability, notwithstanding any prior termination or expiration of this Agreement. As used herein,"period of affordability" shall mean twenty (20) years from the completion of the Project, except that if the assistance provided hereunder is used in connection with other financing insured by HUD under Chapter II of Title 24, Code of Federal Regulations, the period of affordability shall he the full original term of said mortgage or twenty(20) years, whichever is longer. (b) (i) The full amount of loan assistance provided to Developer and Owner for the Project pursuant to this Agreement shall constitute an indebtedness of the Owner to City which shall be evidenced by a promissory note (hereinafter referred to as the "Promissory Note" or "Note") which shall be due and payable with interest as provided therein and which shall be secured by the following described real property, also the legal description of the property where Project will be constructed, situate in the County of Pueblo, State of Colorado (the "Property"): LEGAL DESCRIPTION UNIT, FUEL AND IRON, ACCORDING TO THE DECLARATION OF COVENANTS, CONDITIONS AND REsTRICTIONS FOR FUEL AND IRON, RECORDED ON ,2021 AT RECEPTION NO, ,AND THE CONDOMINIUM MAP SEPARA'M,Y RECORDFD ON 2021 Al RECEPTION NO. , PUEBLO COUNTY, COLORADO. as evidenced by a Deed of Trust to be executed contemporaneously with said Promissory Note (together the "loan instruments") and this Agreement. The address of the Project is: 400 South Union Avenue, Pueblo, Colorado. The loan instruments shall require the Owner to pay to City or holder the indebtedness as and to the extent same becomes due under the provisions of the Promissory Note and this Agreement. Owner shall include terms in said Promissory Note and Deed of Trust stating that the amount of the assistance shall continue as an indebtedness until paid in full or the completion of the period of affordability, whichever comes first. And, notwithstanding such payment in full, the affordability restrictions described in this Agreement shall continue in effect and be enforceable for the full period of affordability without regard to the term specified in the Note or Deed of Trust for repayment. (ii) In order to secure the affordability provisions and other requirements of this Agreement, City may, at any time, require an assignment and transfer of said Note and Deed of Trust. (c) During the full Term of this Agreement and for the period of affordability, (i) any 5 ('()R ( ??1 0002116697W 2,1 failure by the Owner to perform any obligation,covenant, or provision of the Note, Deed of Trust, or this Agreement required to be performed by the Owner, or(ii)any breach of any warranty made by Developer in this Agreement, or (iii) any other violation of any term of this Agreement, the Promissory Note, or the Deed of Trust given to secure the Note, shall constitute a default under this Agreement. Upon any such default, the City may demand via a written notice that Owner repay to City the full amount of assistance provided hereunder, plus interest at the rate of four percent (4%) per annum from and after the date of such default. Owner further agrees that no release of any security for the indebtedness or extension of time for payment of same, or any installment thereof, andno alteration, amendment, or waiver of any provision of the Note or the Deed of Trust securing same shall in any manner, release, discharge, modify, or affect the obligations of Developer or Owner under this Agreement. (d) City will provide Owner, through notice to Full Plate Management, EEC (the managing member of Fuel and iron Managing Member, I.L�C, which is the managing member of Owner), a copy of any written notice at 3273 South Tulare Circle, Denver, Colorado 80231. City will allow the Owner thirty (30) days after receipt of such notice to cure or cause the cure of any default under this Agreement or the Loan Documents (as hereinafter defined), or such longer period as is reasonably necessary for the Owner to cure non-monetary defaults provided that Owner commences to cure and continues with due diligence. Copies orally and all notices required to be given to the Owner pursuant to this Agreement shall also be sent,in the same manner as such notice is given to the Owner, to the Owner's indirect investor member(the "Equity Investor") at the following address: Fuel and Iron Master Tenant, L:LC, c/o First SouthWest Bank, 600 E. 2°`r Avenue, Durango, Colorado 81301, Attention: Mike Coltharp. The Equity Investor may change its address for receipt of copies of notices by giving notice in writing stating its new address to the City. Commencing on the tenth (10th) day after the giving of such notice, the newly designated address shall be effective for purposes of all such copies of notices required to be sent by the City to the Equity Investor. (e) Notwithstanding anything to the contrary contained in this Agreement, the Equity Investor shall have the right,but not the obligation, to cure defaults of Owner. 5. TERMINATION OF AGREEMENT. (a) For Cause. This Agreement may he terminated by City for cause, including any nonperformance by Developer or Owner, if after written notice to Developer or Owner said party fails to cure the default within thirty (30) days of the notice. If the party fails to cure the default within the thirty (30) day period, the City may terminate this Agreement upon written notice to Developer or Owner, as applicable, including a statement of the reasons therefor, and after an opportunity for a hearing has been afforded. If a hearing is requested, it shall he held before the City's Director of Housing and Citizen Services whose decision as to both the grounds for termination and the appropriateness thereof shall be final and binding upon both City and Developer. In accordance with 2 CFR 200.340, cause for termination shall include any material failure by Developer or Owner to comply with any term of this Agreement. (b) For Convenience. This Agreement may be terminated by City for convenience 6 CORE/3522158.0002/166978652.1 upon sixty(60) days prior written notice to Owner. This Agreement shall terminate immediately upon any non-appropriation of funds, or upon any suspension or non-receipt of federal assistance provided to City under the Act, regardless of cause. (c) Post Termination Procedures. In the event of termination, Developer and Owner shall continue to be responsible for those matters which survive termination identified in Section 4 above, unless City takes over the Project and, in connection therewith, prospectively releases Developer and Owner from one or more specific responsibilities in writing. Additionally,at City's sole option,all property acquired by Developer and Owner with loan funds,all loan funds,program income, and mortgage loans originated with loan funds or by payments therefrom, and payments received under such mortgage loans, held, owned, or retained by Developer or Owner shall be subject to recapture in accordance with the default provisions of the Deed of Trust. All finished or unfinished documents,data, studies, reports, and work product prepared by Developer, Owner, or their agents and assigns under this Agreement or with loan funds shall, at the option of the City, become its property, and Developer or Owner, as applicable, shall be entitled to receive just and equitable compensation only for satisfactory work completed and eligible costs for which compensation has not previously been paid nor reimbursement made. 6. ASSIGNABILITY. This Agreement shall not be assigned or transferred by Developer or Owner without the prior written consent of the City; provided however, that this limitation shall not be construed to prohibit Developer from undertaking activities under this Agreement with the Owner meeting the requirements of Section 1(a)of this Agreement. Any assignment or attempted assignment made in violation of this provision shall, at City's election, be deemed void and of no effect whatsoever. 7. CONFLICT OF INTEREST. HOME Regulation 24 CFR Part 92.356 is incorporated herein by reference, and sets forth applicable laws and regulations that apply to Conflict of Interest. Developer shall avoid all conflicts prohibited by applicable regulations, including but not limited to those set forth in 24 CFR Part 92 as presently promulgated and as same may be revised from time to time in the future. 8. DEVELOPER RECORDKEEPI NG. Developer shall maintain records as to the Project work and activities undertaken with assistance hereunder, services provided, reimbursable expenses incurred in connection with the Project, and complete accounting records. Accounting records shall be kept on a generally recognized accounting basis and as requested by the City's auditor. Developer agrees to comply with all applicable uniform administrative requirements described or referenced in 24 CFR Part 92. The compliance provisions attached as Exhibit"B"hereto are made a part of this Agreement, and Developer agrees to perform and comply with same. The City, HUD, the Comptroller General of the United States, the Inspector General of FLU D, and any of their authorized representatives, shall have the right to inspect and copy, during reasonable business hours, all books, documents, papers,and records of Developer and the Owner which relate to this Agreement for the purpose of 7 COP ErW2!5A 00021166975652 I making an audit or examination. Upon completion of the work and end of the term of this Agreement, the City may, at any time during the period of affordability or within five (5) years thereafter, require all of Developer's and the Owner's financial records relating to this Agreement be turned over to the City. 9. MONITORING AND EVALUATION. The City shall have the right to monitor and evaluate the progress and performance of Developer to assure that the terms of this Agreement are being satisfactorily fulfilled in accordance with IIUD's, City's, and other applicable monitoring and evaluation criteria and standards. The City shall at least quarterly review Developer's performance using on-site visits, progress reports required to be submitted by Developer,audit findings,disbursement transactions,and contact with Developer as necessary. Developer shall furnish to the City monthly or quarterly program and financial reports of its activities in such form and manner as may be requested by the City. Developer shall fully cooperate with City relating to such monitoring and evaluation. 10. DEVELOPER FILES AND INFORMATION REPORTS. Developer shall maintain files containing information which shall clearly document all activities performed in conjunction with this Agreement, including, but not limited to, financial transactions, conformance with assurances, activity reports, and program income. These records shall be retained by Developer for a period of five(5)years,except that with respect to the Project undertaken with assistance provided hereunder,, such records shall be maintained fir the full required period of affordability and for the five (5) years thereafter. Activity reports shall be submitted monthly or quarterly no later than the ninth (91h) day of the month following the end of month or quarter for which the report is submitted. 11. INDEPENDENCE OF DEVELOPER. Nothing herein contained nor the relationship of Developer and Owner to the City, which relationships are expressly declared to be that of an independent contractors, shall make or be construed to make Developer or the Owner, or any of Developer's or Owner's agents or employees, the agents or employees of the City. Both Developer and Owner shall he solely and entirely responsible for their acts and the acts of their agents, employees, and subcontractors. 12. LIABILITY & INSURANCE. (a) As to the City, Developer and Owner agrees to assume the risk of all personal injury, including death and bodily injury, and damage to and destruction of property, including loss of use therefrom, caused by or sustained, in whole or in part, in conjunction with or arising out of the performance or nonperformance of this Agreement by Developer or Owner or by the conditions created thereby. Developer and Owner are joint and severally liable for all terms under this Agreement. Developer and Owner further agree to indemnify and save harmless the City, its officers, agents, and employees, from and against any and all claims, liabilities, costs, expenses, penalties, and attorney fees arising from such injuries to persons or damages to property, or based 8 CORE/3522158.0002'166978652.1 upon or arising out of the performance,nonperformance,or breach of this Agreement by Developer or Owner, or out of any violation by Developer or Owner of any statute, ordinance, rule, or regulation. Notwithstanding the foregoing, the Owner and Developer shall not be obligated to indemnify the City, its officers, agents, or employees with respect to any intentional tort, act of gross negligence, or willful misconduct which the City, its officers, agents, or employees, respectively, has committed as determined by the final, non-appealable, judgment of a court of competent jurisdiction. (b) Owner agrees that it shall procure and will maintain during the term of this Agreement,such insurance as will protect it from claims under workers' compensation acts,claims for damages because of personal injury including bodily injury, sickness, disease, or death of any of its employees or of any person other than its employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom;and such insurance will provide for coverage in such amounts as set forth in subparagraph(c). (c) The minimum insurance coverage which Owner shall obtain and keep in force is as follows: (i) Workers' Compensation Insurance complying with statutory requirements in Colorado. (ii) Comprehensive General and Automobile Liability Insurance with limits not less than One Million and No/100 Dollars(S1,000,000.00)per person and occurrence for personal injury, including but not limited to death and bodily injury, and One Million and No/100 Dollars ($1,000,000.00)per occurrence for property damage. (d) Owner further agrees that it shall procure and maintain,at Owner's expense,hazard and fire insurance upon the property described in the Deed of Trust on an "all risk" form in such amounts as City's Department of Housing and Citizen Services may require, but in any event, for not less than the amount of all liens against the Property and the amount of funds provided to Owner by City pursuant to this Agreement. Owner shall furnish a certificate of insurance certifying such coverage to City's Director of Finance prior to disbursement of any funds to Owner. Both said certificate of insurance and the policy procured by the Owner shall name the City as an additional loss payee. 13. CERTIFICATIONS. Developer agrees to execute and abide by the certifications contained in Exhibit "1)" hereto,which are hereby expressly made a part of this Agreement. 14. PROGRAM INCOME; REVERSION OF ASSETS, (a) Unless otherwise authorized by City in writing in a separate instrument executed after date of this Agreement, all program income shall be returned to City within thirty (30) days of receipt by Developer. In the event City authorizes Developer to retain any portion of program 9 coRE/3522158.0002/166978652.1 income, it shall only be used to accomplish the work set forth in the Scope of Services, and the amount of loan funds payable by City to Developer shall be adjusted as provided by 24 CFR 92.503. (b) Upon expiration of the term of this Agreement, or upon any prior termination, Developer shall transfer to City any funds provided hereunder which are on hand at the time of expiration or termination together with any accounts receivable attributable to the use of funds provided hereunder. (c) The Project, the Property, and any other real property acquired, constructed, or improved in whole or in part with funds provided pursuant to this Agreement shall be used as affordable rental housing within the meaning of 24 CFR 92.252 for the full period of affordability as defined in Section 4 hereof. In the event the Project,the Property,or such other property ceases to be so used, Owner shall be in default under the Deed of Trust and Note, and Owner shall immediately pay to City the greater of: (i) an amount equal to the current market value of the Project and Property less any portion of the value attributable to expenditures of funds not provided under this Agreement for the construction of the Project or acquisition of, or improvement to, the Property (that is, the calculation of the portion of value attributable to expenditures not provided by City under this agreement shall be the market value multiplied by a fraction whose numerator is the total Project cost or costs of acquisition determined as of the date of Project completion less the amount of assistance provided by City and whose denominator is the total Project cost or cost of acquisition determined as of the date of Project completion) or, (ii) the remaining principal balance and accrued interest owing under the Note. The affordability requirements apply without regard to the term of any loan or mortgage, repayment of the HOME investment, or transfer of ownership. The use restrictions and repayment obligations set forth in this subparagraph shall survive termination or expiration of this Agreement and shall be fully enforceable and subject to collection by City or HUD in accordance with applicable laws. Owner and any transferee shall comply with the requirements of this paragraph and execute a Deed of Trust which shall be and constitute a lien upon the Property and all other real property acquired or improved with funds provided hereunder, and which shall secure the affordability requirements hereunder. City shall have the right of first refusal to purchase the housing before foreclosure or deed in lieu of foreclosure in order to preserve affordability. City will have the authority to and may require specific performance to enforce the terms of this Agreement and any affordability requirements. (d) In the event City incurs any cost or expense in enforcing the requirements of this Agreement, including but not limited to the requirements of this Section 14, or in bringing any action to recover the amount of any repayment obligation,or, upon assignment of the Note and the Deed of Trust, to foreclose or obtain sale under the Deed of Trust or mortgage instrument, City shall be entitled to recover its costs and expenses, including reasonable attorney's fees. (e) To further ensure that the funds provided hereunder do not constitute an investment of more HOME funds than are necessary to provide affordable housing (as required by 24 CFR 92.250(b)), Owner shall retain ownership of the Project for a period of not less than 20 years from and after the completion of the Project.Consequently,in the event the Owner should sell or transfer title to the Project, the Property, or other real property or improvements constructed or improved 10 CC RE 3522158_OOO2/1669?86522.1 with funds provided pursuant to this Agreement, within 20 years after substantial completion of the Project or said improvements, any loan agreement, Note, and Deed of Trust shall provide that the entire indebtedness under the Note shall immediately become due and payable and shall be collected and repaid to City, together with interest thereon at the rate of four percent (4%) per annum from the time of substantial completion until said repayment is made; provided, however, such repayment shall not be required to the extent permitted by federal law,if the City has granted prior written approval of the sale or transfer, and the acquirer of the property becomes subject to this Agreement, all HOME affordability restrictions, and the obligations of the Owner under this Agreement, the Note, and Deed of Trust have been assigned to and assumed by the Project purchaser, then Owner shall no longer be indebted to City and the City shall look to the Project purchaser for performance of any remaining obligations hereunder. If Owner is a limited partnership or limited liability company, nothing in this subparagraph (e), nor in subparagraph(f) of this Section 14, is intended to prohibit a transfer of ownership From Owner to any direct or indirect member in Owner as long as the transferee remains subject to this Agreement, all HOME affordability restrictions, and the obligations of the Owner under this Agreement, the Note, and Deed of Trust. (f) It is the intent of the parties that C.R.S. §38-30-165 and any similar statute hereafter enacted, be preempted under federal law and regulations in order to maintain affordability of the rental units within the Property. Consequently, any loan agreement between City and the Owner and the Note and Deed of Trust executed by the Owner(collectively,the"I man Documents")shall not be assumable,and the indebtedness shall be due and payable upon sale,transfer,or assignment, or any attempted sale or transfer of the Property by the Owner, unless all of the following circumstances are demonstrated to exist: (i) more than 20 years have elapsed since the substantial completion of the Project, (ii) the senior lien holders also consent to assumption of the mortgage or obligation to which the Deed of Trust is subordinate, (iii) the sale of the Property is to a subsequent purchaser who agrees in writing to comply with the affordability requirements of this Agreement and applicable requirements, including those set forth at 24 CFR, 92.252, (iv) the sale price and payment of principal,interest,property taxes,and insurance by the subsequent purchaser must permit the rental units to remain affordable for the remaining period of affordability specified in this Agreement, with affordability determined by applicable regulations and requirements, and (v) both the City and the holder of the Note expressly consent to assumption of the Owner's obligations under any loan agreement and the Note by the subsequent purchaser prior to sale or transfer, which consent shall be granted only upon the Owner's showing circumstances(i)through (iv) have or will be satisfied. (g) Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the Owner may transfer its interest in the Project and the Property to Developer without prior consent from the City. IS, SPECIAL REQUIREMENTS APPLICABLE TO IMPROVEMENTS TO PROPERTY, (a) In addition to all procurement requirements otherwise applicable to the Project pursuant to any other provision of this Agreement or pursuant to any requirement of law or 11 COR E13 52 2 1 5 8 000 2/1 66197865 2. regulation incorporated in this Agreement by reference, Developer and Owner shall comply with all requirements of this Section 15. (b) No improvements shall be undertaken to the Property or other real property with funds(or reimbursement)provided hereunder unless and until: (i)plans and specifications therefor have been prepared by either a registered Professional Engineer in good standing and duly licensed to practice in the State of Colorado or an Architect duly licensed and authorized to conduct a practice of architecture in the State of Colorado; (ii) such plans and specifications have been filed with the City and approved by both the City's designated representative and the City's Director of Public Works; and (iii) all construction contracts for improvements for which funds are provided from City shall have been awarded only after an open,competitive bidding process which has been approved by City's Director of Purchasing and which allows qualified contractors to reasonably participate in the competitive bidding procedures; provided, however, that the open competitive bidding process required herein need not follow the City's procurement requirements for City improvements. Developer or Owner may submit its proposed bidding process to the City for review and approval or disapproval prior to receipt of any funds hereunder, (c) No disbursement of funds to Developer or Owner shall he made by City hereunder unless and until all conditions precedent to payment specified elsewhere in this Agreement have been satisfied and Developer or Owner files with City's Director of Housing and Citizen Services a written request for payment signed by an officer of Developer that certifies: (i)that the amounts included in the request for payment have not been included in any prior request for payment, (ii) that the improvements listed therein for which payment is sought have been completed in accordance with the approved plans and specifications therefor,and(iii)that the improvements for which payment is sought have been constructed so as to comply with City of Pueblo building codes and Section 8 Housing Quality Standards. (d) [Reserved] (e) Every contract for construction of improvements, and all lower tier covered transactions, shall include a requirement, that the contractor, subcontractor, or vendor certify that neither it nor its principal is debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any federally funded project. (f) Developer and Owner shall, at Developer's and Owner's sole expense, provide for relocation assistance to persons displaced as a result of the Project, if any, in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, and applicable implementing regulations, and in accordance with 24 CFR 92.353. 16. RlCOGNITION OF HUD, CITY. In all printed materials, Project descriptions, and other activities undertaken with funds provided under this Agreement, Developer and Owner shall provide recognition that funds have been provided by the U.S. Department of!lousing and Urban Development and the City of Pueblo. Recognition shall be accomplished by prominent disclosure of the role of HUD and the City in all 12 CORE/3522158.00021166978652.1 such printed materials and Project signage, if any. 17. AFFIRMATIVE FAIR HOUSING MARKETING PLAN. For all programs assisting five or more households, Developer has established procedures and will take steps necessary to affirmatively further Fair Housing in accordance with City policies, attached hereto in Exhibit "G", and federal regulations codified at 24 CFR 570.487(b) and 24 CFR 92.351, respective of CDBGIHOME funding. Developer has submitted to the City HUD Form 92243, Affirmative Fair Housing Marketing Plan, outlining its strategy to encourage those who are least likely to apply for the services funded by this Agreement. 18. ENTIRE AGREEMENT,AMENDMENTS. The provisions set forth in this Agreement, and all Exhibits and attachments to this Agreement, constitute the entire and complete agreement of the parties hereto with respect to the Project and supersede all prior written and oral agreements, understandings, or representations related thereto. No amendment or modification of this Agreement,and no waiver of any provision of this Agreement, shall he binding unless made in writing and executed by the duly authorized officers of the Developer, Owner, and City. 19. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Colorado. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado. 20. SIGNATURES. The persons signing this Agreement on behalf of Developer and Owner respectively represent and warrant that such persons and Developer and Owner have the requisite power and authority to enter into, execute, and deliver this Agreement and that this Agreement is a valid and legally binding obligation of Developer and Owner enforceable against Developer and Owner, as applicable, in accordance with its terms, [Remainder of page intentionally left blank; signature pages follow] 13 CC)Rf113522I 58.0002/166978452.1 IN WITNESS WHEREOF, Developer, Owner, and the City have executed this Agreement as of the date first above written and under the laws of the State of Colorado. CITY OF PUEBLO, ATTEST: A Municipal Corporation-� By: j • City 1c. rk Nicholas A. Gradisa , Mayor [ S t, :144°' Date:Date: , d�t 9/ /44.' „ ` Fri A, DEVELOPER: \ • � 7� '4. FULL PLATE MANAGEMENT, LLC, a e�� pw Colorado limited liability company By: Nathan Stern, Manager By: Zachary Cytryn, Manager Date: OWNER: FUEL AND IRON RESIDENTIAL, LLC, a Colorado limited liability company By: Nathan Stern, Authorized Representative Date: 14 CORE/3522158 0002/166978652.1 IN WITNESS WHEREOF, Developer, Owner, and the City have executed this Agreement as of the date first above written and under the laws of the State of Colorado. CITY OF PUEBLO, ATTEST: A Municipal Corporation By: City Clerk Nicholas A. Gradisar, Mayor [ SEAL ] Date: DEVELOPER: FULL PLATE MANAGEMENT, LLC, a Colorado limited liability company By: Nathan Stern, Manager By: Zachar Cytryn, Manager Date: OWNER: FUEL AND IRON RESIDENTIAL, LLC, a Colorado limited liability company By: Nathan Stern, Authorized Representative Date: 14 CURT:/3522158.0002/1W 978652.I Reception 2248198 10/15/2021 02:25:26 PM DEED OF TRUST THIS DEED OF TRUST, made this /3 day of b.j 2021,between Fuel and Iron Residential, LLC. a Colorado limited liability company, with an address of 3273 South Tulare Circle, Denver, Colorado 80231, hereinafter referred to as "Grantor," and the Public Tntstee of the County of Pueblo, in the State of Colorado. hereinafter referred to as "Trnstee," WITNESSETH: WHEREAS, Grantor has entered into the City of Pueblo Affordable Housing Development Agreement dated as of even date herewith with the City of Pueblo, a Municipal Corporation. hereinafter referred to as the "Agreement;"and WHEREAS, the Grantor has executed a Promissory Note, hereinafter referred to as the "Note."dated as of even date herewith for the principal stun of Five Hundred Thirty-Six Thousand Six Hundred Eighty and No/100 Dollars (U.S. $536,680.00), payable'to the order of the City of Pueblo, a Municipal Corporation. located at I City Hall Place, Pueblo, Colorado 81003, which amount is an indebtedness of Grantor payable with interest in accordance with the terms of said Note;and, WHEREAS, the Grantor is desirous of securing performance of all obligations of Grantor under said Agreement and Note and payment of the indebtedness as specified therein. NOW. THEREFORE, the Grantor, in consideration of the premises and for the purposes aforesaid, does hereby grant, bargain, sell and convey unto Tntstee in trust forever. for the use and benefit of the City of Pueblo,a Municipal Corporation(the"Beneficiary"), the following described property. situated in the County of Pueblo, State of Colorado to wit: See Exhibit A Also known as 100 South Union Avenue, Pueblo, Colorado 81003. TO HAVE AND TO HOLD the sante, together with all and singular the privileges and appurtenances thereunto belonging: In Trust Nevertheless. That in case of default in the Note or am. part thereof or payment as specified therein, according to the tenor and effect of said Note. or in the payment of an prior encumbrances. principal,or interest, if any, or in case of a breach of any term of the Agreement, or in case default shall be made in or in case of violation or breach of any of the terms, conditions, covenants, or agreements herein contained. the Beneficiary hereunder may declare a violation of an of the covenants herein contained and elect to advertise said property for sale and demand such sale, then, upon filing notice of such election and demand for sale with the Tntstee, who shall upon receipt of such notice of election and demand for sale cause a copy of the sante to be recorded in the recorder's office of the county in which said real estate is situated, it shall and may be lawful for said Tntstee to sell and dispose of the same(en masse or in separate parcels, as the said Trustee may think best), and all the right, title, and interest of Grantor, its successors or assigns therein, at public auction at the south front door of the Court House. in the County of Pueblo, State of Colorado, or on said premises. or any part thereof as may be specified in the notice of said sale, for the highest and best price the sante will bring in cash, four weeks' public notice having been previously given of the time and place of such sale, by advertisement, weekly. in some newspaper of general circulation at that time published in said County of Pueblo, a copy of which notice shall be mailed within ten days from the date of the first publication thereof to the Grantor at the address herein given and to such person or persons appearing to have acquired a subsequent record interest in said real estate at the address given in the recorded instrument; where only the county and state is given as the address then such notice shall be mailed to the county seat, and to make and give to the purchaser or purchasers of such property at such sale, a certificate or certificates in writing describing such property purchased, and the sunt or sums paid therefor, and the time when the purchaser or purchasers(or other person entitled thereto) shall be entitled to a deed or deeds therefor, unless the same shall be redeemed as is provided by law; and said Tntstee shall. upon demand by the person or persons holding the same certificate of purchase,when said demand is made,or upon demand by the person entitled to a deed to and for the property purchased, at the time such demand is made, the time for redemption haying cORL/3522158.0002/166386009.1 . AWA Land Title w.kk,NrLE COMPANY 2248198 10/15/2021 02:25:26 PM Page. 2 of 8 R 48 00 0 0.00 T 48.00 Gilbert Ortiz Clerk/Recorder, Pu�lbl'o r_u .,' Co 1111 M r I �Tlif !4 1i � ��1�r�:�����,Ms� Ih�'�Mi�i��Y���� 11111 expired, make and execute to such person or persons a deed or deeds to the said property purchased,which said deed or deeds shall be in the ordinary form of a conveyance, and shall be signed, acknowledged and delivered by the said Tnistee. as grantor,and shall convey and quit-claim► to such person or persons entitled to such deed, as grantee, the said property purchased as aforesaid and all the right, title, interest,benefit and equity of redemption of the Grantor, its successors and assigns therein, and shall recite the sum or sums for which the said property was sold and shall refer to the power of sale therein contained, and to the sale or sales made by virtue thereof: and in case of an assignment of such certificate or certificates of purchase. or in case of the redemption of such property, by a subsequent encumbrancer, such assignment or redemption shall also be referred to in such deed or deeds; but the notice of sale need not be set out in such deed or deeds and the said Public Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges. and costs of making said sale, pay to the Beneficiary hereunder or the legal holder of the indebtedness, all moneys and amounts due, according to the tenor and effect thereof, and all moneys advanced by such Beneficiary or legal holder of said indebtedness for insurance, taxes, and assessments, with interest thereon at twelve percent per annum, rendering the oycrplus, if any, unto the said Grantor, his legal representatives or assigns; which sale or sales and said deed or deeds so made shall be a perpetual bar,both in law and equity,against the Grantor, its successors, and assigns. and all other persons claiming the said property', or any part thereof,by,from, through, or under said Grantor, or any of them. The Beneficiary or holders of the indebtedness may purchase said property or any part thereof; and it shall not be obligatory upon the purchaser or purchasers at such sale to see to the application of the purchase money. If a release deed be required, it is agreed that Grantor. its successors,and assigns,will pay the expense thereof. And the Grantor, for itself and for its successors and assigns covenants to and agrees with the Trustee, that at the time of the ensealing of and delivery of these presents he is well seized of the said land and tenements in fee simple, and has good right, full power, and lawful authority to grant, bargain, sell, and convey the same in the manner and form as aforesaid; hereby fully and absolutely waiving and releasing all rights and claims he may have in or to said lands, tenements, and property as a Homestead Exemption, or other exemption, now existing or which may hereafter be enacted in relation thereto and that, subject to the stated title exceptions attached hereto in Exhibit B, the same are free and clear of all hens and encumbrances whatsoever, and the above bargained property shall be in the quiet and peaceable possession of said Tnrstee, his successors, and assigns, against all and every person or persons lawfully claiming or to claim the whole or any part thereof, the said Grantor shall and will Warrant and Forever Defend. And that during the continuance of said Note or the indebtedness arising thereunder, the said Grantor will in due season pay all taxes and assessments levied on said property; all amounts due on account of principal and interest on prior encumbrances, if any: and will keep all buildings that may at any time be on said lands, insured against loss by fire with extended coverage endorsements in a company authorized to issue such insurance in the State of Colorado, for such sums or sums as such company'or companies will insure for, not to exceed the amount of said indebtedness and any prior encumbrances,except at the option of said Grantor, with loss, if any, payable to the Beneficiary hereunder, as its interest may appear, and will deliver the policy or policies of insurance to the Beneficiary hereunder, as further security for the indebtedness aforesaid. And in case of the failure of Grantor to thus insure and deliver the policies of insurance, or to pay such taxes or assessments, or amounts due or to become due on any prior encumbrances, if any, then the Beneficiary or Note Holder(as such term is defined in the Note) may procure such insurance, or pay such taxes or assessments or amount due upon prior encumbrances, if any.and all moneys thus paid, with interest thereon at twelve percent per annum, shall become so much additional indebtedness, secured by this Deed of Tmst, and shall be paid out of the proceeds of the sale of the property aforesaid, if not otherwise paid by Grantor,and Beneficiary or Note Holder may for such failure declare a violation of this Deed of Tmst,the Note,and the Agreement. If all or any part of the property or an interest therein is sold or transferred by Grantor without Beneficiary's prior written consent, excluding the creation of a lien or encumbrance subordinate to this Deed of Trust, Beneficiary may,at Beneficiary's option.declare all the sums secured by this Deed of Trust to be immediately due and payable. together with interest thereon at the rate of four percent (4%) per annum from the time of default or of substantial completion of the Project, as defined by the Agreement, until said repayment is made; provided, however, and notwithstanding anything herein to the contrary, Beneficiary hereby acknowledges and agrees that Grantor has, on or about the date hereof, entered into other financing arrangements and created other liens in connection with obtaining financing for the Project, and, accordingly, Beneficiary may enter into a reasonable subordination and/or 2 CORE/3522 158.0002/166386009.I 2248198 10/15/2021 02.25:26 PM Page: 3 cf 8 R 48.00 D 0.00 T 48.00 Gilbert Ortiz C1erk/Recnrde•' Pueblo Gcur'ty "o r W7./Prii rh"I '!d4^ is",41G0,1414.111461i'A 111111 intercreditor agreement discussing the relative priorities of lienholders and lenders in connection with the financing for the Project and,except as otherwise in accordance with law,be bound only by the terms thereof as to the priority of the liens. AND THAT IN CASE OF ANY DEFAULT, Including but not limited to any breach of the affordability requirements detailed in the Agreement, Note, or as otherwise may be required pursuant to 24 C.F.R. Part 92, whereby the right of foreclosure occurs hereunder,the Trustee or the Beneficiary or holder of certificate of purchase, shall at once become entitled to the possession,use,and enjoyment of the property aforesaid.and to the rents, issues, and profits thereof. from the accruing of such right and during the pendency of foreclosure proceedings and through the period of redemption, if any there be: and such possession shall at once be delivered to the Trustee or the Beneficiary or the holder of the certificate of purchase on request, and on refusal, the deliver of such possession may be enforced by the Trustee or the Beneficiary or holder of the certificate of purchase by any appropriate civil suit or proceeding,and the Trustee or Beneficiary or the holder of the certificate of purchase,or any thereof. shall be entitled to a Receiver for said property,and of the rents, issues, and profits thereof, after such default, including the time covered by foreclosure proceedings and the period of redemption, if any there be, and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of the Grantor or of the then owner of said property and without regard to the value thereof,and such Receiver may be appointed by am court of competent jurisdiction upon ex parte application and without notice--notice being hereby expressly waived--and all rents, issues and profits. income and revenue therefrom shall be applied by such Receiver to the payment of the indebtedness hereby secured, according to the law and the orders and directions of the Court. AND, That in case of default in any of said payments of principal or interest, according to the tenor and effect of said Note aforesaid, or any part thereof, or a breach of any term of the Agreement, or of a breach or violation of any of the covenants or agreements herein, by the Grantor, its successors, or assigns, then and in that case the whole of the indebtedness hereby secured, and the interest thereon to the time of the sale, may at once, at the option of the Beneficiary or the legal holder of the indebtedness,become due and payable, and the said property be sold in the manner and with the same effect as if said indebtedness had matured. and that if foreclosure be made by the Public Tnistee,a reasonable attorney's fee for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as part of the cost of foreclosure, and if foreclosure be made through the courts a reasonable attorney's fee shall be taxed by the court as a part of the costs of such foreclosure proceedings. The final payment of the Note and performance of the Agreement and other obligations secured by this Deed of Trust are due on November 1,2042. Notwithstanding anything to the contrary contained in this Deed of Trust or the Note being secured hereby, Equity Investor(as defined below)shall have the right,but not the obligation, to cure defaults of Grantor. ARV notice from the Beneficiary to the Grantor under this Deed of Trust shall be deemed to have been received by the Grantor three(3)days after being mailed by certified mail, return receipt requested, to the Grantor at 3273 South Tulare Circle, Denver, Colorado 80231, Attention: Nathan Stern, or at such other address as Grantor may designate in writing to Beneficiary. Copies of any and all notices given by Beneficiary to the Grantor shall be sent. ill the same manner as such notice is given to the Grantor. to the Grantor's indirect investor member (the "Equity Investor")at the following address: Fuel and Iron Master Tenant. LLC,c/o First SouthWest Bank,600 E.2°° Ave.,Durango, CO 81301,Attention: Mike Coltharp. Equity Investor may change its address for receipt of copies of notices by giving notice in writing stating its new address to the Beneficiary. Commencing on the tenth (I11th) day after the giving of such notice, such newly designated address shall be effective for purposes of all such copies of notices required to be sent by the Beneficiary to the Equity Investor. Nothing in this Deed of Trust is intended, nor shall it be construed, to grant any rights whatsoever to Grantor or create any condition precedent to the exercise of any right or remedy by the Beneficiary: nor shall any noncompliance with the requirements of this Deed of Trust constitute am defense against enforcement of the Note or this Deed of Trust, including without limitation. Beneficiary's right to accelerate maturity of the entire indebtedness and demand sale of the said property. 3 CORE/3522 I 5g.0002/166386009_ 2248198 10/15/2021 02:25:26 PM Pagge: 40 of 8 R 48.00 D 0.00 T 48.00 Gilbe:t Ortiz Glerb/kecorder. Pueolc °cunty Cn ■1111 illsrrVirli Inii+LkTill!II:lilIhRitihilliti 11111 Should any provisions of this Deed of Trust be found to violate the statutes or court decisions of the State of Colorado,or of the United States,such provision shall be deemed to be amended to comply with and conform to such statutes and decisions. REFERENCE IS MADE TO THAT CERTAIN INTERCREDITOR AGREEMENT DATED AS OF[, 13 . 2021, BY AND AMONG PB&T BANK, CHF REVOLVING LOAN FUND, LEGACY BANK, FIRST SOUTHWEST COMMUNITY FUND, THE HOUSING AUTHORITY OF THE CITY OF PUEBLO, STATE OF COLORADO, IMPACT DEVELOPMENT FUND AND CITY OF PUEBLO (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"). ANYTHING CONTAINED HEREIN TO THE CONTRARY NOTWITHSTANDING, THE LIENS AND SECURITY INTERESTS GRANTED TO LENDER HEREUNDER AND THE EXERCISE OF CERTAIN RIGHTS OR REMEDIES BY LENDER HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN WITNESS, WHEREOF,the Grantor has hereunto set its hand and seal the day and year first above written. GRANTOR: FUEL AND IRON RESIDENTIAL, LLC, a Colorado limited liability company By: ldce....,--z_•- Q4--.=.--.. Nathan Stern,Stern, Authorized Representative STATE OF COL RADO ) ss. COUNTY OF --4--- ) The foregoing instrument was acknowledged before me in /A.4... ..--- County, Colorado, this ig.‘,..41 day of le 4.-- , 2021 by Nathan Stern, as Authorized Representative,on behalf of Fuel and Iron Residential, LLC, A Colorado Limited Liability Company. Witness my hand and official seal. My commission expires: gf i 7.1-6— _ • THOMAS J BLAKE [ SEAL]/ / NOTARY PUBLIC --- Com- -' '#10.10 - STATE OF COLORADO Notary Public NOTARY ID 19874017388 My Commission Expires:August 29,2025 4 COR I:/3522 158.0002/166386(109.1 Exhibit A Escrow No.35055336 RESIDENTIAL UNIT,FUEL AND IRON CONDOMINIUM,ACCORDING TO THE DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS FOR FUEL AND IRON CONDOMINIUM,RECORDED ON SEPTEMBER 30,2021 AT RECEPTION NO. 2246093,AND THE CONDOMINIUM MAP OF FUEL AND IRON CONDOMINIUM RECORDED ON SEPTEMBER 30,2021 AT RECEPTION NO.2246092,COUNTY OF PUEBLO,STATE OF COLORADO. Page1958 ofg//1a/2027 0.7.25.26 PM Gilbert Ortiz C1 Rk4p .., C 0.00 T48 00 �rit I I'ir 'Mil IA"LIS i ■{PI�! f'� � eN�f�Il, �IIII EXHIBIT B TO DEED OF TRUST TITLE EXCEPTIONS pt1 'll' 2.5'•z' g8.0`n Co 1. ` 2�h81g8 a{Oat5R �R �O�`eMq 0e1,�11cco-rtr 1� �+ e �Y'� trt, a�e• t�Ori ? 1`rk.,� \g,4 ,1drii "" 6 CORE/3522158.0003/166386009.1 22481.98 10/15/2021 02.25:26 PM Page: 7 of 8 R 48.00 0 0.00 T 48.00 Cilbert Ortiz ClerkiRecord r. Puebla -.ounty Co P1 rithil'ilifi i : irMr W1;1,144111,1011111 ATTACHMENT B PERMITTED EXCEPTIONS Property Address:400 S UNION AVE,PUEBLO,CO 81003 1. EXISTING LEASES AND TENANCIES. 2. RESERVATIONS AS CONTAINED IN PATENT OF THE UNITED STATES RECORDED APRIL 19,1875 IN BOOK 10 AT PAGE 557. 3. EASEMENTS,CONDITIONS,COVENANTS,RESTRICTIONS,RESERVATIONS AND NOTES ON THE PLAT OF SOUTH PUEBLO RECORDED DECEMBER 13,1872 UNDER RECEPTION NO.245. 4. TERMS,CONDITIONS,PROVISIONS,BURDENS AND OBLIGATIONS AS SET FORTH IN AGREEMENT FOR REVOCABLE PERMIT RECORDED JANUARY 16,1992 IN BOOK 2574 AT PAGE 265. 5. TERMS,CONDITIONS, PROVISIONS,BURDENS AND OBLIGATIONS SET FORTH ON THE UNION AVENUE HISTORIC BUSINESS ZONE DISTRICT MAP RECORDED FEBRUARY 22, 1994 IN BOOK 2713 AT PAGE 989. 6. TERMS,CONDITIONS, PROVISIONS,BURDENS AND OBLIGATIONS AS SET FORTH IN NOTICE OF ZONING RESTRICTIONS RECORDED FEBRUARY 22,1994 IN BOOK 2713 AT PAGE 990. 7. TERMS,CONDITIONS,PROVISIONS,BURDENS,OBLIGATIONS AND EASEMENTS AS SET FORTH AND GRANTED IN PUBLIC SERVICE COMPANY OF COLORADO UTILITY EASEMENT RECORDED SEPTEMBER 01,1995 IN BOOK 2828 AT PAGE 261. 8. TERMS,CONDITIONS,PROVISIONS,BURDENS,OBLIGATIONS AND EASEMENTS AS SET FORTH AND GRANTED IN EASEMENT RECORDED NOVEMBER 01,1995 IN BOOK 2842 AT PAGE 908. 9. TERMS,CONDITIONS, PROVISIONS,BURDENS,OBLIGATIONS AND EASEMENTS AS SET FORTH AND GRANTED IN PRIVATE SEWER EASEMENT AGREEMENT AND COVENANTS RECORDED JANUARY 22,2001 UNDER RECEPTION NO.1366608. 10. TERMS,CONDITIONS, PROVISIONS,BURDENS,OBLIGATIONS AND EASEMENTS AS SET FORTH AND GRANTED IN EASEMENT AND RIGHT-OF-WAY RECORDED JANUARY 22,2001 UNDER RECEPTION NO.1366609. 11. TERMS,CONDITIONS, PROVISIONS,BURDENS,OBLIGATIONS AND EASEMENTS AS SET FORTH AND GRANTED IN EASEMENT AND RIGH-OF-WAY RECORDED JANUARY 22,2001 UNDER RECEPTION NO. 1366610. 12. THE EFFECT OF INCLUSION OF SUBJECT PROPERTY IN THE PUEBLO CONSERVANCY DISTRICT,AS EVIDENCED BY INSTRUMENT RECORDED AUGUST 01,2007,UNDER RECEPTION NO.1736292 AND RECORDED FEBRUARY 15, 2013 UNDER RECEPTION NO.1934215 AND PUEBLO CONSERVANCY DISTRICT MAP RECORDED DECEMBER 11, 2009 UNDER RECEPTION NO.1829096. 13. MINERALS AS RESERVED IN DEED RECORDED SEPTEMBER 03,1996 IN BOOK 2925 AT PAGE 698,OR A SEVERANCE OF MINERALS EVIDENCED THEREBY,AND ANY AND ALL ASSIGNMENTS THEREOF OR INTERESTS THEREIN.NOTE:GRANTOR OR ITS SUCCESSORS AND ASSIGNS,SHALL NOT HAVE THE RIGHT FOR ANY PURPOSE WHATSOEVER TO ENTER UPON,INTO,OF THROUGH THE SURFACE OF THE PROPERTY IN CONNECTION THEREWITH. 14. TERMS,CONDITIONS, PROVISIONS,OBLIGATIONS AND THE RESERVATION OF ALL OIL,GAS,MINERALS AND OTHER MINERAL RIGHTS AS CONTAINED IN INSTRUMENT RECORDED AUGUST 11,1999, UNDER RECEPTION NO. 1293427,AND ANY AND ALL ASSIGNMENTS THEREOF OR INTERESTS THEREIN. 15. TERMS,CONDITIONS, PROVISIONS,OBLIGATIONS,RESERVATION OF WATER RIGHTS AND THE RESERVATION OF ALL OIL,GAS,MINERALS AND OTHER MINERAL RIGHTS AS CONTAINED IN INSTRUMENT RECORDED APRIL 25, 2002,UNDER RECEPTION NO.1436422,AND ANY AND ALL ASSIGNMENTS THEREOF OR INTERESTS THEREIN. 16. THE EFFECT OF ANY FAILURE TO COMPLY WITH THE TERMS,COVENANTS AND CONDITIONS OF LEASE OR LEASES DESCRIBED OR REFERRED TO IN SCHEDULE A.(AFFECTS LEASEHOLD INTEREST TWO) 17. TERMS,CONDITIONS AND PROVISIONS OF MASTER LEASE BY AND BETWEEN FUEL AND IRON COMMERCIAL, LLC,A COLORADO LIMITED LIABILITY COMPANY,AS LANDLORD,AND FUEL AND IRON MASTER TENANT,LLC,A COLORADO LIMITED LIABILITY COMPANY,AS TENANT,RECORDED dais 2021 UNDER RECEPTION NO. 1.3_1g0,0y(AFFECTS PARCEL 1) 18. TERMS,CONDITIONS AND PROVISIONS OF MASTER LEASE BY AND BETWEEN FUEL AND IRON RESIDENTIAL,LLC, A COLORADO LIMITED LIABILITY COMPANY,AS LANDLORD,AND FUEL ANDIrIRON MASTER TENANT,LLC,A COLORADO LIMITED LIABILITY COMPANY,AS TENANT,RECORDED a u ,2021 UNDER RECEPTION NO. ��y91$7.(AFFECTS PARCEL 2) 19. TERMS,CONDITIONS, PROVISIONS,BURDENS AND OBLIGATIONS AS SET FORTH IN COLOADO DEPARTMENT OF LOCAL AFFAIRS USE COVENANT AND REGULATORY AGREEMENT RECORDEDDC,f(S 2021 UNDER RECEPTION NO. 2.-R s(( T3 Form 1010 SPark.b2exhibit escrow.html 35055336 (100181278) NOTE:THE FOLLOWING NOTE WILL BE ADDED TO THE PB&T BANK LOAN POLICY:THERE ARE NO AMOUNTS DUE AND PAYABLE AS OF THE DATE OF POLICY 20. ANY FACTS,RIGHTS, INTERESTS OR CLAIMS WHICH MAY EXIST OR ARISE BY REASON OF THE FOLLOWING FACTS SHOWN ON ALTA/NSPS LAND TITLE SURVEY CERTIFIED OCTOBER 4,2021,PREPARED BY MICHAEL LELAND GUPPY FOR AND ON BEHALF OF NORTHSTAR ENGINEERING AND SURVEYING INC.,JOB NO.2001500: (SAID SURVEY IS STORED AS OUR ESI 39967018)A)FENCE LINES ARE NOT COINCIDENT WITH PROPERTY BOUNDARY LINES;B)CONCRETE ENCROACHES INTO EASEMENT;C)OVERHEAD ELECTRIC LINES TRAVERSE THROUGH PROPERTY WITHOUT APPARENT BENEFIT OF RECORDED EASEMENT;D)ELECTRICAL TRANSFORMERS WITHOUT APPARENT BENEFIT OF RECORDED EASEMENT. 21. RESTRICTIVE COVENANTS,WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE,BUT OMITTING ANY COVENANTS OR RESTRICTIONS,IF ANY,BASED UPON RACE,COLOR,RELIGION,SEX,SEXUAL ORIENTATION, FAMILIAL STATUS,MARITAL STATUS,DISABILITY,HANDICAP,NATIONAL ORIGIN,ANCESTRY,OR SOURCE OF INCOME,AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS,EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW,AS CONTAINED IN DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS FOR FUEL AND IRON CONDOMINIUM RECORDED SEPTEMBER 30, 2021 UNDER RECEPTION NO.2246093. 2248198 10/15/2021 02:25:26 PM Page: 8 of 8 R 48.00 D 0 00 T 48. n t Gilbert Ortiz Cl -loRecartde' t Putebla'Count, u ■lil�t��1F'�+t ,t� 0���1#�,It����ha�Pttt�!#�� i��1� 1 V�lt�t 111111 Form 1010 SPark.b2exhibit.escrow.html 35055336 (100181278)