HomeMy WebLinkAbout7547RESOLUTION NO. 7547
A RESOLUTION APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE URBAN
RENEWAL AUTHORITY OF PUEBLO, COLORADO AND
INTRA FINANCIAL CORPORATION RELATING TO THE
PUEBLO HOTEL CONVENTION CENTER COMPLEX AND
DELEGATING TO THE PUEBLO HOTEL CONVENTION
CENTER COMPLEX NEGOTIATING COMMITTEE THE
AUTHORITY TO APPROVE DOCUMENTS REQUIRED TO BE
APPROVED BY THE CITY UNDER THE DISPOSITION AND
DEVELOPMENT AGREEMENT
WHEREAS, the Pueblo Hotel Convention Center Complex Negotiating Committee has
approved a Disposition and Development Agreement and Amendment No. 1 dated as of January 17,
1995 (the "Agreement ") between Intra Financial Corporation and the Urban Renewal Authority of
Pueblo, Colorado, and
WHEREAS, said Agreement has been approved by the Urban Renewal Authority of Pueblo,
Colorado (the "Authority "), and
WHEREAS, the Agreement requires certain documents to be approved by the Authority and
the City. NOW THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Disposition and Development Agreement and Amendment No. 1 dated as of January 17,
1995 between the Urban Renewal Authority of Pueblo, Colorado and Intra Financial Corporation
(the "Disposition and Development Agreement "), copies of which are on file in the office of the City
Clerk, are hereby approved.
SECTION 2.
The City Council does hereby delegate to the Pueblo Hotel Convention Center Complex
Negotiating Committee the authority to approve the documents (except any document that imposes
any financial or other obligation on the City) required to be approved by the City under the
Disposition and Development Agreement, together with the authority to approve minor
modifications to the Disposition and Development Agreement.
ATTEST:
C'4 Clerk
INTRODUCED January 17, 1995
By SAMUEL CORSENTINO
Councilperson
APPROVED:
President of the City Council
J AC1TY \URA\H0TEL\RESO -DDA. W PD
AMENDMENT NO 1
DISPOS AND DEVELOPMENT AGREEMENT
THIS AGREEMENT ( "Amendment No. 1 ") is made and entered into as of the 17th day of
January, 1995, by and between the URBAN RENEWAL AUTHORITY OF PUEBLO,
COLORADO, a body corporate and politic of the State of Colorado (the "Authority "), and
INTRA FINANCIAL CORPORATION, a Minnesota corporation (the "Developer ").
Reci
The parties entered into an Agreement for Disposition and Development dated as of January 17,
1995 (the "Agreement "), and desire to amend the Agreement in accordance with this
Amendment No, 1.
Agreement
In consideration of the following mutual promises and covenants and other good and valuable
consideration, the receipt and adequacy of which are herehy acknowledged, the parties agree as
follows:
Section 1. Administrative and Development Fees. The Agreement is amended by deleting
section 6.2klb) of the Agreement and substituting the following new section 6.2(b).
(b) The Authority shall pay to the Developer the following administrative and
development fees related to the Convention Center Facility:
(1) $10,000 upon exccut.ion of this A.grxnicnt by the Authority;
(2) $25,000 upon approval by the parties of the following agreements:
the Design and Construction Agreement; the Convention Center
Management Agreement; the Reciprocal Easement Agreement; the
Parking Management Agreement; the Hotel Management
Agreement;
(3) $25,000 upon approval of the Schematic Design Documents;
(4) $25,000 upon the approval of the Design Development Documents
by the Authority;
(5) $25,000 upon approval of the Construction Documents by the
Authority;
(6) $ 2 6,000 when the construction contract for all of the
Improvements is awarded in accordance with the competitive
bidding procedure described in section 6.11.
The above fees will be included in more detail in the Design and Construction Agreement. No
other administration and developer fees will be paid by the Authority.
Section 2. Exhibit C. Exhibit C is amended by substituting the words "recommend changes"
for Uir, word "reject" in each instance where the Authority is required to review documents
submitted by the Developer.
Section 3. Effect of Modification. Except as expressly modified by this Amendment No. 1, the
Agreement shall remain unchanged and in fuU force and effect and the Agreement and this
Amendment No. 1 shall be construed as one contract and the context of each shall be determined
from consideration of the other.
IN WITNESS WHEREOF, the Authority and the Developer have caused this Amendment
No. 1 to be duly executed as of the day first above written.
AUTHORITY:
THE URBAN RENEWAL AUTHOWTY OF
PUEBLO
COLORADO
ATTEST:
By: - .
Secretary
DEVELOPER:
AT"T"EST:
Secretary
CORPORATION
N
e
URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO
the Authority
AND
INTRA FINANCIAL CORPORATION
the Developer
DISPOSITION AND DEVELOPMENT AGREEMENT
Dated as of January 17, 1995
TABLE OF CONTENTS
SECTION 1 GENERAL MATTERS AND CERTAIN DEFINITIONS
1.1 Certain Definitions . . . . . . . . . . . . . . . . 1
1.2 Purpose . . . . . . . . . . . . . . . . . . . . 3
SECTION 2 DEVELOPER'S DEPOSIT
2.1 Deposit . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Disposition of Deposit . . . . . . . . . . . . . . . 4
SECTION 3 DISPOSITION; PURCHASE PRICE
3.1
Sale and Purchase of Hotel Parcel; Purchase Price 4
3.2
Form of Deed . . . . . . . . . . . . . . . . . . . . 4
3.3
Title Insurance . . . . . . . . . . . . . . . . . . 4
3.4
Condition of Title . . . . . . . . . . . . . . . . . 5
3.5
Time and Place of Closing . . . . . . . . . . . . . 6
3.6
Recordation of Deed . . . . . . . . . . . . . . . . 6
3.7
Title Insurance Policies . . . . . . . . . . . . . . 6
SECTION 4.
ACQUISITION; PREPARATION OF PROPERTY FOR
Covenants . . . . . . . . . . . . . . . . . .
REDEVELOPMENT
4.1
Current Status . . . . . . . . . . . . . . . . . . . 6
4.2
Acquisition . . . . . . . . . . . . . . . . . . . . 6
4.3
Demolition and Clearance . . . . . . . . . . . . . . 6
4.4
Zoning . . . . . . . . . . . . . . . . . . . . . . . 7
4.5
Utility Service . . . . . . . . . . . . . . . . . . 7
4.6
Developer Not to Construct Over Utility Easements 7
4.7
Service Connections . . . . . . . . . . . . . . . . 7
4.8
Access to Property . . . . . . . . . . . . . . . . . 8
4.9
Survey . . . . . . . . . . . . . . . . . . . . . . . 8
4.10
Cooperation Agreement; Vacation of Streets and
Alleys . . . . . . . . . . . . . . . . . . . . . . 8
4.11
Replat and Dedications . . . . . . . . . . . . . . . 8
4.12
Soils and Environmental Tests . . . . . . . . . . . 9
4.13
Temporary Signage . . . . . . . . . . . . . . . . . 9
4.14
Hazardous Waste . . . . . . . . . . . . . . . . . . 9
SECTION 5
PUBLIC INFRASTRUCTURE
5.1
Construction . . . . . . . . . . . . . . . . . . . . 9
5.2
Maintenance . . . . . . . . . . . . . . . . . . . . 9
SECTION 6 COMMENCEMENT AND COMPLETION OF CONSTRUCTION AND
i
FACILITIES OPERATION
6.1
Developer Obligations . . . . . . . . . . . .
. . . 10
6.2
Design and Control of Facilities . . . . . . .
. . . 10
6.3
Operation of Convention Center Facility . . .
. . . 11
6.4
Hotel Management Agreement . . . . . . . . . .
. . . 11
6.5
Covenants . . . . . . . . . . . . . . . . . .
. . . 11
6.6
Allocation of Costs . . . . . . . . . . . . .
. . . 11
6.7
Funds Pooling Arrangement . . . . . . . . . .
. . . 12
6.8
Progress Reports . . . . . . . . . . . . . . .
. . . 12
6.9
Budget . . . . . . . . . . . . . . . . . . . .
. . . 12
6.10
City's Approval . . . . . . . . . . . . . . .
. . . 13
i
6.11
Competitive Bidding . . . . . . . . . . . . . . . .
13
SECTION 7
PROJECT FINANCING
23
7.1
Developer's Financing . . . . . . . . . . . . .
13
7.2
Authority's Financing . . . . . . . . . . . . . .
14
7.3
Cooperation Regarding Financing . . . . . . .
15
SECTION 8
DEVELOPMENT PLAN AND REVIEW PROCEDURE
24
8.1
Development Plan . . . . . . . . . . . . .
15
8.2
Design Development Documents . . . . . . . . . . . .
16
8.3
Construction Documents . . . . . . . . . . . . . . .
16
8.4
Approval, Changes . . . . . . . . . . . . . . . . .
16
SECTION 9
CERTIFICATE OF COMPLETION
27
9.1
Completion of Construction of Improvements . . . . .
17
9.2
Recordation and Notice . . . . . . . . . . . . . .
17
SECTION 10
INSURANCE
10.1
Prior to Completion of Construction . . . . . . . .
17
10.2
After Completion of Construction . . . . . . . . . .
18
10.3
Repair or Reconstruction of Improvements . . . . . .
18
SECTION 11.
REPRESENTATIONS AND WARRANTIES
11.1
Representations and Warranties by the Authority
19
11.2
Representations and Warranties by the Developer
19
SECTION 12
PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER
12.1
Representations as to Redevelopment . . . . . . . .
20
12.2
Prohibition Against Transfer of Property and
Assignment of Agreement . . . . . . . . . . . . . .
20
12.3
Information as to Interest Holders . . . . . . . . .
21
12.4
Method of Taking Title; Limited Partnership
Provisions . . . . . . . . . . . . . . . . . . . .
22
SECTION 13 MORTGAGE FINANCING; RIGHTS OF MORTGAGEES
13.1
Limitation Upon Encumbrance of Property . . . . . .
23
13.2
Mortgagee Not Obligated to Construct . . . . . . . .
23
13.3
Copy of Notice of Default to Mortgagee . . . . . . .
23
13.4
Mortgagee's Option to Cure Defaults . . . . . . . .
24
13.5
Authority's Option to Pay Mortgage Debt or Purchase
Property . . . . . . . . . . . . . . . . . . . . .
24
13.6
Authority's Option to Cure Mortgage Default . . . .
25
SECTION 14
TERMINATION
14.1
Termination by Developer Prior to Conveyance . . . .
25
14.2
Termination by Authority Prior to Conveyance . . . .
26
14.3
Action to Terminate . . . . . . . . . . . . . . . .
27
14.4
Effect of Termination . . . . . . . . . . . . . . .
27
SECTION 15 DEFAULT; REMEDIES
15.1 Default by Developer . . . . . . . . . . . . . . . . 27
15.2 Default by the Authority . . . . . . . . . . . . . . 28
15.3 Grace Periods . . . . . . . . . . . . . . . . . . . 28
15.4 Remedies on Default . . . . . . . . . . . . . . . . 28
ii
15.5
Revesting Title in the Authority . . . . . . . . . .
29
15.6
Resale of Reacquired Property; Disposition of
Proceeds . . . . . . . . . . . . . . . . . . .
30
15.7
Other Rights and Remedies . . . . . . . . . . . . .
30
15.8
Delays; Waivers . . . . . . . . . . . . . . . . . .
31
15.9
Enforced Delay in Performance for Causes Beyond
Control of Party . . . . . . . . . . . . . . . .
31
15.10
Rights and Remedies Cumulative . . . . . . . . . . .
31
SECTION 16
MISCELLANEOUS
16.1
Assignment to Trustee; Pledge of Payments . . . . .
32
16.2
Conflicts of Interest . . . . . . . . . . . . . . .
32
16.3
Antidiscrimination . . . . . . . . . . . . . . . . .
32
16.4
Provisions Not Merged with Deed . . . . . . . . . .
32
16.5
Title of Sections . . . . . . . . . . . . . . . .
32
16.6
No Third -Party Beneficiaries . . . . . . . . . . . .
32
16.7
Venue and Applicable Law . . o . . . . . . . . .
33
16.8
Nonliability of Authority Officials, Agents and
Employees . . . . . . . . . . . . . . . . . . . .
33
16.9
Authority or City Not a Partner . . . . . . . . . .
33
16.10
Integrated Contract . . . . . . . . . . . . . . . .
33
16.11
Counterparts . . . . . . . . . . . . . . . . . .
33
16.12
Notices . . . . . . . . . . . . . . . . . . . . . .
33
16.13
Good Faith of Parties . . . . . . . . . . . . . . .
34
16.14
Exhibits Merged . . . . . . . . . . . . . . . . . .
34
16.15
Approval of Bond Counsel . . . . . . . . . . . . . .
34
16.16
Days . . . . . . . . . . . . . . . . . . . . . . . .
34
16.17
Further Assurances . . . . . . . . . . . . . . . . .
34
16.18
Certifications . . . . . . . . . . . . . . . . . . .
34
16.19
Amendments . . . . . . . . . . . . . . . . . . .
35
16.20
Survival of Representations, Warranties and
Covenants . . . . . . . . . . . . . . . . . . . .
35
16.21
Minor Changes . . . . . . . . . . . . . . . . . . .
35
EXHIBIT A
Legal Description of the Property . . . . . . . . . . . . A -1
Legal Description of the Convention Center Parcel . . . . A -2
Legal Description of the Hotel Parcel . . . . . . . . . . A -3
EXHIBIT B
Development Plan . . . . . . . . . . . . . . . . . . . . . B -1
Design Development Documents . . . . . . . . . . . . . . . B -1
EXHIBIT C
Schedule of Performance . . . . . . . . . . . . . . . . . C -1
EXHIBIT D
Special Warranty Deed . . . . . . . . . . . . . . . . . . D -1
EXHIBIT E
Public Infrastructure and Cost Allocation
of Shared or Joint Use Facilities . . . . . . E -1
iii
EXHIBIT F
Certificate of Completion . . . . . . . . . . . . . . . . F -1
EXHIBIT G
Covenants . . . . . . . . . . . . . . . . . . . . . . . G -1
EXHIBIT H
Developer Information . . . . . . . . . . . . . . . . . . H -1
iv
AGREEMENT FOR DISPOSITION AND DEVELOPMENT
THIS AGREEMENT (the "Agreement ") is made and entered into as of
this 17th day of January, 1995, by and between the URBAN RENEWAL
AUTHORITY OF PUEBLO, COLORADO, a body corporate and politic of the State
of Colorado (the "Authority ") and INTRA FINANCIAL CORPORATION, a
Minnesota corporation (the "Developer ").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, each
covenants and agrees with the other as follows:
SECTION 1 GENERAL MATTERS AND CERTAIN DEFINITIONS
1.1 Certain Definitions
(a) "Bonds" means, collectively, the Authority's Series
1994A Bonds and it's Series 1994B Bonds. "Bonds" shall also include any
bonds or other obligations issued to refund or refinance any Bonds,
including, without limitation, costs of issuance and any related
reserves.
(b) "City" means the City of Pueblo, Colorado.
(c) "Commencement of Construction" means the undertaking
by the Developer of a continuous course of action to begin and complete
construction of the Improvements depicted in the approved Construction
Documents as defined in section 8.3, including, without limitation, the
following: obtaining all necessary permits and licenses, including
payment of all associated fees and costs; completion of earthwork of any
type including cut or fill; excavation for footings, foundations and /or
caissons as shown on the approved Construction Documents and any other
reasonable evidence that the work being performed is that required by
the Construction Documents for actual construction of the Improvements.
Actions such as assembly and move -in of equipment or mere delivery of
construction materials to the Property shall not constitute
"Commencement of Construction ".
(d) "Completion of Construction" means the complete and
entire construction of all of the Improvements as certified by the
Authority in accordance with the Agreement. The Developer may post a
bond, cash or other form of deposit with either the Authority or the
City in an amount and form reasonably satisfactory to the Authority and
the City to adequately assure completion of any uncompleted work items
up to ten percent (10 %) of the cost of the Improvements.
(e) "Conditional Grant" means the grant made to the
Developer by the Authority in accordance with section 7.1.
(f) "Convention Center Facility" means an approximately
42,000 square foot convention center structure and related improvements,
including an 8,000 square foot event plaza, to be constructed by the
Developer in accordance with this Agreement.
(g) "Convention Center Parcel" means that portion of the
Property described in Exhibit A -2.
(h) "Covenants" mean the covenants attached as Exhibit G
and described in section 6.5.
(i) "Development Plan" means the Developer's concept and
cost estimates for redevelopment of the Property and construction of the
Improvements as described in Exhibit B.
(j) "Hard Costs" means (for the purposes of this Agreement
and not for the Design and Construction Agreement) costs and expenses
actually incurred by the Developer for labor, excavating, grading,
landscaping, construction, materials, furniture, fixtures, equipment,
reports, testing, inspections or otherwise constructing the Hotel
Facility and physically converting the Hotel Parcel to a finished state
as contemplated by the Agreement. Hard Costs may include, without
limitation (1) provision of utility services and other public
improvements related to the Hotel Facility, whether on or off site,
(2) the gross cost of any general or special construction contract for
the Hotel Facility reduced to writing and the additional charges for
change orders, discharge of mechanic's liens and similar contract
extras, (3) any utility tap or other hook -up fees, and (4) permit
charges; provided, however, notwithstanding any language in this
Agreement to the contrary, Hard Costs incurred by the Developer shall
not include any costs that are paid from or are required to be paid from
the proceeds of the Bonds.
(k) "Hotel Facility" means a first class hotel containing
178 or more rooms (including 33 suites) with food and beverage
facilities and related improvements to be constructed and operated by
the Developer in accordance with this Agreement.
(1) "Hotel Parcel" means that portion of the Property
described in Exhibit A -3.
(m) "Improvements" means all of the improvements,
including, without limitation, the Hotel Facility, the Convention Center
Facility and the Public Infrastructure (described in section 5) that the
Developer is required to construct under this Agreement.
(n) "Letter of Credit" means an irrevocable and
unconditional bank letter of credit in a form and substance reasonably
acceptable to the Authority and from a bank acceptable to the Authority,
which bank shall be a bank with a long -term rating of " A " or better (or
its equivalent) from Moody's Investors Service, Standard & Poor's
Corporation or other rating agency reasonably acceptable to the
Authority.
(o) "Maturity Date" means the date when the principal of,
premium (if any) and interest on the Bonds are paid in full.
(p) "Mortgage" means and includes a deed of trust or other
instrument creating an encumbrance or lien upon the Hotel Parcel and the
Hotel Facility as part of the Developer's Financing in accordance with
section 13.
(q) "Property" means the real property described in Exhibit
A -1.
(r) "Project" means the Amended Phase One Urban Renewal
Project for Downtown Pueblo.
(s) "Project Area" means all of the area of real property,
including public rights of way within the boundaries of the Project as
described and delineated in the Urban Renewal Plan.
(t) "Schedule of Performance" means Exhibit C, the schedule
that governs the times for performance by the parties.
(u) "Series 1994A Bonds" means the $7,275,000 aggregate
principal amount of the Authority's Revenue Refunding Bonds (Phase One
Urban Renewal Project) Series 1994A.
(v) "Series 1994B Bonds" means the $2,225,000 aggregate
principal amount of the Authority's Subordinate Revenue Refunding Bonds
(Phase One Urban Renewal Project) Series 1994B.
(w) "Soft Costs" means (for the purposes of this Agreement
and not for the Design and Construction Agreement) reasonable fees and
expenses of architects, surveyors, engineers, accountants, attorneys,
construction managers or other professional consultants; real property
taxes and assessments; direct salary and overhead expenses; development,
administration and overhead charges not to exceed three percent (3 %) of
the Hard Costs of the Hotel Facility; all interest, loan fees and other
costs of obtaining and maintaining the Developer's Financing; and other
commercially recognized costs that are incurred in connection with the
ownership and development of the Hotel Facility.
(x) "Urban Renewal Plan" means the Urban Renewal Plan for
the Amended Phase One Urban Renewal Project for Downtown Pueblo dated
January 28, 1988, as it may be amended from time to time.
1.2 Purpose The purpose of this Agreement is to further the
goals and objectives of the Colorado Urban Renewal Law (the "Act ") by
providing for the redevelopment of the Property pursuant to the Urban
Renewal Plan as it may be amended. The Authority has determined that
the redevelopment of the Property in accordance with the Agreement
conforms with the Urban Renewal Plan and with the Act.
SECTION 2 DEVELOPER'S DEPOSIT
2.1 Deposit In accordance with the Schedule of Performance,
the Developer shall deliver to the Authority and shall maintain in
accordance with the Agreement, a good faith deposit (the "Deposit ") in
C
the form of one or more Letters of Credit to secure both the performance
of the Agreement by the Developer and to pay, in part, the damages to be
incurred by the Authority in the event of default by the Developer,
including, without limitation, the cost of refinancing or refunding the
Bonds and legal, administrative and Project costs incurred in connection
with this Agreement. The amount of the Deposit is Fifty Thousand
Dollars ($50,000.00). The Authority's interest in the full amount of
the Deposit shall be a security interest, superior to the claims of all
other parties, including, without limitation, any lienholder, assignee,
trustee in bankruptcy or any other creditor or person claiming by,
through or under the Developer.
(a) If the Developer fails to provide a satisfactory
substitute Letter of Credit at least thirty (30) days prior to the
expiration date (if any) of any Letter of Credit previously delivered,
the Authority may draw the full amount of the Letter of Credit and hold
such draw as the Deposit for the purposes of the Agreement. The
proceeds of such draw shall be deposited in a federally- insured
interest - bearing account, and all interest earned thereon shall be added
to and become part of the Deposit.
(b) Subject to section 14.4 and section 15.4(c), at the
time the Developer obtains a Certificate of Completion from the
Authority in accordance with section 9, the Deposit will be returned to
the Developer, and the Developer shall have no further obligation to
provide any further deposits to the Authority.
2.2 Disposition of Deposit The disposition of the Deposit, and
all accrued interest thereon, if any, shall be governed by sections 2.1,
14.4 and 15.4(c).
SECTION 3 DISPOSITION; PURCHASE PRICE
3.1 Sale and Purchase of Hotel Parcel: Purchase Price At the
time specified for the closing (the "Closing ") in the Schedule of
Performance and subject to the terms, covenants and conditions of the
Agreement, the Authority shall sell and the Developer shall purchase the
Hotel Parcel. The purchase price (the "Purchase Price ") of the Hotel
Parcel shall be Ten Dollars ($10.00), subject, however, to increase in
accordance with the provisions of section 7.1(d).
3.2 Form of Deed At the Closing, title to the Hotel Parcel
will be conveyed by the Authority to the Developer by special warranty
deed in the form attached as Exhibit D (the "Deed "). Such conveyance
shall be subject to all the terms, conditions and requirements of the
Agreement, and title to the Hotel Parcel shall be in the condition
required by section 3.4. Such conveyance shall be subject to the
condition subsequent required by section 15.5, and to all other
conditions, covenants and restrictions set forth or referred to
elsewhere in the Agreement.
3.3 Title Insurance In accordance with the Schedule of
Performance, the Authority shall provide Developer with standard ALTA
form commitments for owner's title insurance (the "Commitments ") for the
Hotel Parcel and the Convention Center Parcel in the amount of the
Purchase Price issued by Lawyers Title Insurance Company (the "Title
Insurance Company ") . The Title Insurance Company shall promptly deliver
copies of the Commitments, Commitment updates and title documents
adverted to within the Commitments to the Developer and the Authority.
(a) Commencing on the date the Commitments and related
documents (including any subsequent endorsements that add any exceptions
to title) are delivered to the Developer and to the Authority, the
Developer and the Authority shall have fourteen (14) days to review the
Commitments and any endorsements thereto and approve or disapprove any
matter that does not conform with section 3.4. If the Developer
disapproves any such matter affecting title to the Hotel Parcel or if
the Authority disapproves any such matter affecting title to the
Convention Center Parcel, either party, within said fourteen (14) day
period, shall notify the other in writing of such defect. The Authority
shall have thirty (30) days from the date of such notice to correct such
defect. If, upon the expiration of said thirty (30) day period, the
Authority has not corrected any such title defect to the Developer's or
to the Authority's (as the case may be) reasonable satisfaction, or, (1)
in the case of a defect unacceptable to the Developer, if such defect
cannot be corrected in such time, the Authority has not commenced and is
not pursuing reasonable action to cure or correct such defect, the
Developer may terminate the Agreement, or (2) if the Authority elects to
terminate this Agreement after the expiration of such thirty (30) day
period, it shall give notice of such election to the Developer. If
either party terminates the Agreement pursuant to this section, the
Deposit and any interest earned thereon shall forthwith be returned to
Developer.
(b) If either party fails to notify the other of any defect
in title as herein required, title shall be deemed acceptable and the
Agreement shall remain in full force and effect.
The Title Insurance Company shall provide to both parties, at least five
(5) days prior to the Closing, updated Commitments and a written
agreement assuring the Developer that the Title Insurance Company will
insure against matters affecting title in violation of the Agreement
(which have not been previously waived by Developer) and that came of
record or are otherwise discovered (and which are not due to the
activities of Developer) since the date of the last Commitments and the
date upon which the Authority delivers the Deed and the time of the
recording of the Deed. It shall not be necessary for the Developer to
object to any title matters to which the Developer has previously
objected that appear on any subsequent Commitment or Commitment update.
Such items shall be deemed to be a violation of this Agreement and
subject to the cure provisions of this Agreement as of the date of the
original objection by the Developer.
3.4 Condition of Title The Authority shall convey to the
Developer fee simple marketable title to the Hotel Parcel, subject to
the provisions of this section 3.4. Title to the Hotel Parcel and the
Convention Center Parcel shall be free and clear of all liens, defects
and encumbrances, except those arising by reason of: (a) the Agreement,
k,
(b) the Urban Renewal Plan, (c) restrictions, reservations, defects and
rights of way of record that do not unreasonably interfere with the
Development Plan, (d) those defects approved or accepted by the
Developer or the Authority and (e) easements for existing utilities that
will continue in use under, and do not unreasonably interfere with, the
Development Plan.
3.5 Time and Place of Closing The Closing shall take place at
the time specified in the Schedule of Performance or upon such earlier
date as the parties may agree in writing. The Closing shall take place
at the office of the Authority at 1 City Hall Place, Pueblo, Colorado
81003, unless the parties agree otherwise in writing.
3.6 Recordation of Deed After delivery by the Authority, the
Developer shall promptly record the Deed with the Clerk and Recorder for
Pueblo County, Colorado. The Developer shall pay all recording costs,
including the state documentary fee.
3.7 Title Insurance Policies Promptly after recordation of the
Deed, the Title Insurance Company shall issue the title insurance policy
in accordance with the Commitment(s) described in section 3.3. The
Authority shall be responsible only for payment of costs associated with
the issuance of the Commitments. The Developer shall be responsible for
all costs of title insurance commitments, policies or endorsements
required by the Developer or its mortgagees. The Developer shall
provide the Authority with a copy of all title insurance policies and
endorsements issued to the Developer and its mortgagees; provided,
however, the Developer shall not be responsible for any title insurance
policies required in connection with the Convention Center Parcel, the
Convention Center Facility or the Bonds.
SECTION 4. ACQUISITION; PREPARATION OF PROPERTY FOR REDEVELOPMENT
4.1 Current Status The Authority owns or will acquire title
to the Property prior to the date of any conveyance to the Developer.
Exhibit A -1 contains a legal description of the Property. The exact
legal description of the Hotel Parcel and the Convention Center Parcel
have not yet been finalized. The legal descriptions of such parcels
shall be provided by the Developer in accordance with the Schedule of
Performance.
4.2 Acquisition The Authority agrees to complete acquisition
of the Property in accordance with the Schedule of Performance. The
Authority may temporarily rent or lease the Property, or any part
hereof, to third parties pending disposition of the Property pursuant to
the terms of the Agreement; provided, that any such temporary use shall
not unreasonably interfere with any tests, surveys and other pre- Closing
work that the Developer may need to perform on the Property. Any
rentals, fees, or other income from such interim use shall be the sole
and exclusive property of the Authority.
4.3 Demolition and Clearance Except as may be provided in
section 5 of this Agreement, the Authority is not responsible for the
surface or subsurface condition (including fill material) of the
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Property. The Authority has heretofore demolished existing buildings on
the Property, and with respect thereto, no further demolition and
clearance shall be required of the Authority.
4.4 Zoning The Authority represents that the Property is
currently zoned or the Authority shall promptly and diligently cause
appropriate zoning to accommodate the development and construction of
the Improvements and uses contemplated hereunder in accordance with the
Schedule of Performance. The parties covenant and agree that they will
not seek any zoning changes that interfere with such construction or
otherwise preclude the parties' compliance with the Agreement.
4.5 Utility Service Responsibility for designing, relocating
and constructing all utility facilities and lines within the Property or
to otherwise provide or to assume responsibility for securing from
public utilities all utility service required to construct and service
the Improvements shall be determined by the parties in accordance with
section 5.1. The Authority believes that utilities are present in
streets and rights of way adjacent to the Property and are adequate to
accommodate the Improvements. The Developer will request, receive and
tender to the Authority written confirmations from the City and all
appropriate public utility companies including, without limitation,
water, sewer, gas, electric, telephone and storm sewer, that such
facilities are available within the time provided in the Schedule of
Performance. It will be the responsibility of the Authority (payable
from the Bond proceeds) to install sufficient utilities if the required
utilities are currently undersized or unavailable adjacent to the
Property. The Authority shall seek the cooperation of the City pursuant
to section 4.10 to assist the Developer in obtaining vacation of any
utility easements or relocation of utility lines and facilities that are
no longer required to service the Improvements or to carry out the
Development Plan, provided that such easements are not otherwise
required for the benefit of third parties or other property. The
Authority, in the Deed or other document to be recorded, may reserve for
the City and any public utility, the right to enter upon the Property,
or any part thereof, at all reasonable times for the purpose of
constructing, reconstructing, maintaining, repairing or servicing the
public utilities located thereon and provided for in the easement
related thereto.
4.6 Developer Not to Construct Over Utility Easements The
Developer shall not construct any building or other permanent structure
other than planters, landscaped areas, surface parking and public
plazas, on, over (except for roof or canopy overhangs approved by the
City and the Authority) or within the boundary lines of any easement for
public utilities unless such construction is provided for in such
easement or has been approved by the Authority and the City.
4.7 Service Connections If water service connections ( "Water
Taps ") have been issued to service the Property, all assignable
interests in such Water Taps shall be transferred to the Developer at
the time of issuance of a building permit by the City with respect to
Commencement of Construction. All other utility service connections and
fees shall be apportioned between the Authority and the Developer in
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accordance with section 5.1 and based on the prorated costs attributable
to the Hotel Facility and the Convention Center Facility, respectively.
4.8 Access to Property The Authority shall permit
representatives of the Developer to have access to any part of the
Property at all reasonable times for the purpose of obtaining data and
making tests or surveys necessary for Developer to carry out the
Agreement. After the Closing and prior to issuance of the Certificate
of Completion, the Developer shall permit representatives of the
Authority and the City access to the Property at all reasonable times
that they deem necessary for the purpose of carrying out or determining
compliance with the Agreement, the Urban Renewal Plan or any City code
or ordinance, including, without limitation, inspection of any work
being conducted on the Property. No compensation shall be payable to
the parties, nor shall any charge be made in any form by any party for
the access provided in this section. A party entering upon the Property
pursuant to this section shall restore the Property to its condition
prior to any tests or inspections made by such party and shall indemnify
and hold harmless the party owning the affected part of the Property for
any loss or damage or claim for loss or damage (including reasonable
legal fees) resulting from any such entrance, tests and surveys.
4.9 Survey The Authority has delivered to the Developer, and
the Developer acknowledges receipt of, a copy of a boundary survey (the
"Survey ") of the Property.
4.10 Cooperation Agreement; Vacation of Streets and Alleys On
or before the date specified in the Schedule of Performance, the
Authority shall prepare and use good faith efforts to secure the City's
approval of such modifications of the Cooperation Agreement between the
Authority and the City dated August 25, 1986, (as so modified, the
"Cooperation Agreement ") as the Authority determines are required by
this Agreement (including without limitation any street, alley or
utility easement vacations required by this section), the Bonds, the
Maintenance Contribution described in section 6.6(d) or otherwise to
accomplish the proper construction and operation of the Improvements.
The Authority believes that all streets and alleys necessary to carry
out the Development Plan have been vacated. If the approved Development
Plan requires any additional street or alley vacations by the City or
vacation of any utility easements, the Developer shall submit to the
City and the Authority a detailed site plan as part of the Development
Plan, including a detour analysis that is satisfactory to the City and
the Authority. The City has agreed that, in accordance with the
Schedule of Performance, and to the extent permissible under its
Charter, the Constitution and the laws of the State of Colorado, the
City will begin and complete any necessary street and alley vacations
within the boundaries of the Property and to assist with the vacation of
any utility easements it determines are no longer required to serve the
Property or any other property or third parties.
4.11 Replat and Dedications The Authority is not requiring the
Developer to replat or resubdivide the Property, but if the City
requires such action, the Developer with the support and cooperation of
the Authority, shall replat and resubdivide all or a portion of the
Ej
'Property, as determined by the City. The Developer shall dedicate, as
appropriate, all easements, public streets, alleys and rights of way
required to properly carry out the Development Plan and construction and
maintenance of the Improvements and the Public Infrastructure described
in section 5.1. The Authority shall dedicate as appropriate all
easements, public streets, alleys and rights of way for the above stated
purposes with respect to any property owned by the Authority.
4.12 Soils and Environmental Tests Within the times specified
in the Schedule of Performance the Developer shall complete all soils
and environmental tests on the Property as it may require in connection
with the Agreement. Copies of all soils reports obtained on the
Property shall be provided without charge to the Authority by the
Developer. The Authority and the City shall deliver to the Developer,
without charge, copies of any surveys or soils test results on the
Property that are in their possession.
4.13 Temporary Signa!e The Authority will allow the Developer
to place a temporary sign or signs (as approved by the City) on
appropriate parts of the Property for marketing purposes.
4.14 Hazardous Waste The Authority makes no representation or
warranty with respect to the deposit or existence of toxic waste or
hazardous materials in or upon the Property. The Developer agrees to
accept the Hotel Parcel, in its "as is" condition at the time of the
Closing.
SECTION 5 PUBLIC INFRASTRUCTURE
5.1 Construction Within the time period set forth in the
Schedule of Performance, the Developer shall notify the Authority of the
public infrastructure and improvements reasonably required for the
construction and operation of the Improvements. The Developer and the
Authority shall use their good faith efforts to agree upon the public
infrastructure to be constructed and installed by the Developer within
the time period set forth in the Schedule of Performance, and upon such
agreement, such agreed upon on -site public improvements (the "Public
Infrastructure ") shall be set forth in Exhibit E. The cost of any
Public Infrastructure required (including the plans therefor) in
connection with the Hotel Facility shall be the responsibility of the
Developer. The cost of Public Infrastructure required (including the
plans therefor) in connection with the Convention Center Facility shall
be the responsibility of the Authority. The cost of any joint -use or
non - public shared facilities shall be allocated between the parties in
accordance with section 6.6.
5.2 Maintenance All Public Infrastructure dedicated by the
Authority or Developer and accepted for maintenance by the City shall be
maintained by the City.
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'SECTION 6 COMMENCEMENT AND COMPLETION OF CONSTRUCTION AND FACILITIES
OPERATION
6.1 Developer Obligations In accordance with this Agreement
the Developer shall commence and complete the construction of the
Improvements within the time periods specified in the Schedule of
Performance. The covenants regarding such construction and completion
shall run with the land until Completion of Construction and are binding
for the benefit of the Authority and the City, and enforceable by the
Authority and the City against the Developer and its successors and
assigns.
6.2 Design and Control of Facilities It is acknowledged and
agreed that the Hotel Facility and the Convention Center Facility are to
be designed and constructed by the Developer as adjoining facilities but
as a single project for purposes of architectural, construction and
usage compatibility. The Developer shall design and construct the
Convention Center Facility in accordance with this Agreement and in
accordance with the terms and conditions of a design and construction
agreement (the "Design and Construction Agreement ") . The parties shall
use their good faith efforts to agree upon the terms of and to execute
the Design and Construction Agreement within the time period set forth
in the Schedule of Performance.
(a) The architect retained by the Developer to design the
Convention Center Facility shall be subject to the approval, direction
and control of the Authority as to the design, inspection and
construction of the Convention Center Facility and fees therefor.
(b) The Authority shall pay to the Developer the following
administrative and development fees related to the Convention Center
Facility:
(1) $10,000 upon approval of the Program Plan
(described in Exhibit B) by the Authority;
(2) $25,000 upon approval and execution of all of the
following agreements: the Design and
Construction Agreement; the Convention Center
Management Agreement; the Reciprocal Easement
Agreement; the Parking Management Agreement; the
Hotel Management Agreement;
(3) $25,000 upon the successful long -term remarketing
of the 1994 Series B Bonds;
(4) $25,000 upon the closing of permanent financing
for the Hotel Facility;
(5) $50,000 when the construction contract for all of
the Improvements is awarded in accordance with
the competitive bidding procedure described in
section 6.11.
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'The 'above fees will be included in more detail in the Design and
Construction Agreement. No other administration and developer fees will
be paid by the Authority.
6.3 Operation of Convention Center Facility Upon the
Completion of Construction of the Hotel Facility and the Convention
Center Facility, the Developer shall operate and maintain the Convention
Center Facility pursuant to the terms and conditions of a management
agreement (the "Convention Center Management Agreement "). The parking
areas shown on the Development Plan shall be maintained and operated in
accordance with the terms and conditions of a reciprocal easement
agreement (the "Reciprocal Easement Agreement ") and a parking management
agreement ( "the Parking Management Agreement "). The parties shall use
their good faith efforts to agree upon the terms of and to execute the
Convention Center Management Agreement, the Reciprocal Easement
Agreement and the Parking Management Agreement within the times for each
set forth in the Schedule of Performance.
6.4 Hotel Management Agreement On or before the date specified
in the Schedule of Performance, the Developer shall deliver to the
Authority and the City a management agreement (the "Hotel Management
Agreement ") with a hotel operator (the "Hotel operator ") agreeing to
manage and operate the Hotel Facility after the Completion of
Construction. The Hotel Management Agreement and the Hotel Operator
shall be subject to the reasonable approval of the Authority and the
City. The Hotel Operator shall agree to manage and operate the Hotel
Improvements after the Completion of Construction. The Developer shall
not terminate or assign (in whole or in part) the Hotel Management
Agreement without the prior written consent of the Authority and the
City, which consent shall not be unreasonably withheld. If the Hotel
Operator shall elect to terminate the Hotel Management Agreement, the
Developer shall immediately give notice of such election to the
Authority and the City, and the Developer shall immediately thereafter
enter into a Hotel Management Agreement with a substitute Hotel Operator
approved by the Authority and the City in accordance with this section
6.4 or the Developer shall make such other arrangements to manage and
operate the Hotel Facility as shall be reasonably acceptable to the
Authority and the City, including management of the Hotel Facility by
the Developer.
6.5 Covenants The Developer and Authority covenant that until
the Maturity Date of the Bonds, the Convention Center Facility and the
Hotel Facility shall be maintained and operated in accordance with the
Covenants set forth in Exhibit G.
6.6 Allocation of Costs If permitted by the Authority's
Financing and to the extent the parties and the City mutually agree that
design considerations require that facilities (e.g., entrance, parking
or kitchen facilities) be used jointly by the Convention Center Facility
and Hotel Facility, the allocation of costs relative to the design,
construction, operation, maintenance, repair and replacement shall be
agreed upon by the parties in accordance with the Schedule of
Performance.
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(a) Subject to the terms of the Convention Center
Management Agreement and except for the annual maintenance and operation
contribution of One Hundred Thousand ($100,000) (the "Maintenance and
Operation Contribution ") that the City has agreed to contribute in
accordance with the Indenture governing the Series 1994A Bonds to the
ongoing maintenance of the Convention Center Facility, the Developer
shall be responsible for the cost of operations, repair, maintenance and
replacement of all of the facilities of the Convention Center Facility
and related amenities, including, without limitation, fixtures,
furniture, equipment, all parking areas, common areas and all common and
joint -use facilities. All management and related agreements, including
without limitation, the Hotel Management Agreement, the Convention
Center Management Agreement and the Parking Management Agreement, shall
contain provisions implementing this covenant. Subject to the terms and
conditions of the Convention Center Management Agreement and the
approval of the Authority's bond counsel, unused portions of the annual
Maintenance and Operation Contribution shall accrue in a segregated fund
dedicated to the same uses.
(b) Notwithstanding any language to the contrary, all
construction costs of common or joint -use facilities shall be reasonable
and necessary for the operation and use of the Convention Center
Facility and shall not lessen the quality or size of the Convention
Center Facility.
6.7 Funds Pooling Arrangement The Developer and the Authority
shall cooperate to the extent that the Authority Financing and the
Developer Financing may be efficiently coordinated and applied to permit
the construction of the Hotel Facility and the Convention Center
Facility as separate facilities but as a single project; provided, that
no part of the Authority's Financing will be used for any Developer
obligations hereunder or in a manner that will cause the Bonds to be
considered "private activity bonds" within the meaning of the Internal
Revenue Code; and provided further, notwithstanding any language in this
Agreement to the contrary, there shall be a separate accounting of all
Bond proceeds expended in accordance with this Agreement. Such
accounting procedure shall be subject to the approval of the Authority
and the trustee for the Bonds.
6.8 Progress Reports Until Completion of Construction of the
Improvements, the Developer shall make reports in such detail and at
such times as may reasonably be requested by the Authority and the City,
as to actual progress of the Developer with respect to the Commencement
of Construction, the progress of construction and the Completion of
Construction of the Improvements.
6.9 Budget Within the time periods specified in the Schedule
of Performance, the parties and the City shall agree upon a preliminary
budget (the "Preliminary Budget ") and a final budget (the "Final
Budget ") for the allocation and use of the net proceeds of the Bonds in
accordance with this Agreement; provided, however, any and all
obligations of the Authority and the City under this Agreement, or any
other agreement incidental to or required by this Agreement, shall be
funded by and paid from the net proceeds of the Bonds.
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'6.10 City's Approval All allocation and use of the proceeds of
the Bonds and all agreements governing or implementing such use,
including, without limitation, this Agreement, are subject to the
reasonable approval of the City Council; provided, that the terms and
conditions of such approval do not violate any trust indenture,
including, without limitation, the separate Indentures dated August 15,
1994, governing respectively the Series 1994A Bonds and the Series 1994B
Bonds (collectively, the "Indentures ").
6.11 Competitive Bidding All contracts for the construction of
all or any part of the Improvements shall be procured in accordance with
City Ordinance No. 5853 and Resolution No. 7486 that require all
construction work to be awarded through competitive bidding and that the
general contractor will act as the construction manager.
SECTION 7 PROJECT FINANCING
7.1 Developer's Financing On or before the time specified in
the Schedule of Performance, the Developer shall submit to the Authority
evidence reasonably satisfactory to the Authority and the City that the
Developer has obtained Developer's Financing in an amount and on terms
that the Developer reasonably determines to be sufficient to construct,
complete and open the Hotel Facility for permanent operation in
accordance with this Agreement. To the extent funds are available
pursuant to section 7.2 and under and in accordance with the terms of
the Indentures including, without limitation, the requirements of the
Indentures applicable to the remarketing of the Series 1994B Bonds, the
Developer's Financing may include a proposal for use of a portion of the
proceeds of the Bonds (the "Conditional Grant ") to finance (in part) the
Hotel Facility. The Conditional Grant shall be subject to the following
terms and conditions:
(a) After Completion of Construction and prior to the
Maturity Date, the Developer shall devote the Property and the Hotel
Facility to the uses specified in the Agreement and the Plan.
(b) After Completion of Construction and prior to the
Maturity Date, the Developer shall continuously maintain and operate the
Hotel Facility as a first -class hotel in accordance with the Hotel
Management Agreement and to take no action to or to permit any change in
the uses on the Property or in any way impair or adversely affect the
Authority's ability to pay the principal of and interest on the Bonds.
(c) After Completion of Construction and prior to the
Maturity Date, the total liens on the Hotel Facility and the Hotel
Parcel shall not exceed a loan to value ratio of Sixty -Five (65 %)
Percent as confirmed by an MAI appraiser selected jointly by the
Developer and the Authority and provided and paid for by the Developer
at the time the Developer obtains its original permanent financing and
upon any refinancing or sale of the Hotel Facility or the Hotel Parcel;
provided, that the principal balance of any such debt or obligation may
be increased by an amount not to exceed the actual cost of any future
expansion of the Hotel Facility; provided, further, if the loan -to -value
ratio does not exceed 65% at the time a particular debt or obligation is
13
placed against the Hotel Facility and Hotel Parcel, the ratio will not
be deemed exceeded solely by reason of a subsequent decrease in value of
the Hotel Facility and Hotel Parcel, unless such decrease is due to an
uninsured casualty.
(d) The Developer shall not sell, refinance in violation
of section 7.1(c) or otherwise transfer, voluntarily or involuntarily,
all or any part of its interest in the Hotel Facility or the Hotel
Parcel to any entity or third party within ten (10) years after
Completion of Construction. If the Developer shall violate the covenant
specified in either section 7.1(c) or section 7.1(d) within five (5)
years of the date of the Closing, the Developer shall immediately pay to
the Authority the full amount of the Conditional Grant and shall also
immediately pay to the Authority an increase in the Purchase Price for
the Hotel Parcel in the amount of $6.50 multiplied by the actual number
of square feet in the Hotel Parcel (to be established in accordance with
the Schedule of Performance) as confirmed by a survey reasonably
acceptable to the Authority, such increase being the amount agreed by
the parties to be the fair market value (the "Fair Market Value ") of the
Hotel Parcel. If such default or violation occurs during the sixth to
tenth year after the date of the Closing, the Conditional Grant and the
Purchase Price for the Hotel Parcel, as increased in accordance with
this section 7.1(d), less one fifth of each such amount for each full
year (prorated to the date of such payment by the Developer for any
period of less than one year) after the fifth anniversary of the
Closing, shall be immediately paid by the Developer to the Authority in
cash. Any part of the Conditional Grant and the Fair Market Value that
are so returned shall be retained by the Authority in a special account
dedicated entirely to modifications to or expansion of the Convention
Center Facility or other Project uses as are consistent with maintaining
the tax - exempt status of the Bonds. The final structure for effecting
such return and use of the returned Conditional Grant and the Fair
Market Value shall not jeopardize the tax - exempt status of the Bonds.
(e) After Completion of Construction and prior to the
Maturity Date, the consent of the Authority shall be required in the
event of any sale, transfer or refinancing of the Hotel Facility and /or
the Hotel Parcel or for any change in the party managing the Hotel
Facility pursuant to the Hotel Management Agreement.
7.2 Authority's Financing The Authority believes it has
obtained the Authority's Financing necessary to carry out this
Agreement, subject to the remarketing provisions of the Indenture
governing the Series 1994B Bonds confirmation of the cost of the
Convention Center Facility pursuant to the preparation and approval of
the Preliminary Budget, the Design Development Documents, the Final
Budget and the Construction Documents. Notwithstanding any language
herein to the contrary, the Authority may terminate this Agreement
pursuant to section 14.2 if the Authority determines, in its sole
discretion, that the Authority's Financing will not be adequate to
properly construct and equip the Convention Center Facility and provide
funds required to be spent by the Authority (and, if applicable, by the
City) under this Agreement after review of the final Construction
14
Documents, the Final Budget and related cost estimates described in
section 8.3 and Exhibit B.
(a) The Authority's Financing consists of the net proceeds
of the Bonds, which is approximately Six Million Seven Hundred Thousand
Dollars ($6,700,000) available from the Series 1994A Bonds and
approximately Two Million Dollars ($2,000,000) that may become available
from the Series 1994B Bonds, provided that the remarketing provisions of
the Indenture applicable to the Series 1994B Bonds are met. The first
priority for expenditure of the Authority's Financing shall be the
Convention Center Facility and the required public amenities and
services to assure its completion and operation, including, without
limitation, the Maintenance and Operation Contribution and any funds
required to be spent by the Authority and the City under this Agreement
and the Cooperation Agreement for Public Infrastructure, utilities,
landscaping, demolition, clearance, site preparation, common or joint
use facilities, off site costs and any other items related to the
Conference Facility, all as determined by the Authority.
(b) Any amount remaining after payment of the amounts
specified in section 7.2(a), but not to exceed Two Million ($2,000,000)
Dollars or twenty -five (25 %) percent of the net proceeds of the Bonds,
whichever is lesser, shall be available to the Developer as the
Conditional Grant. The Conditional Grant shall be disbursed to or for
the benefit of the Developer pursuant to such reasonable terms and
conditions as are consistent with the Indentures and the other
contractual documents governing the Bonds and to the reasonable
requirements of the Authority's bond counsel and bond underwriter.
Whether the Authority's Financing is adequate to meet its obligations
under this Agreement shall be determined by the Authority in its
reasonable discretion. Notwithstanding any language herein to the
contrary, the Authority's ability to obtain the Authority's Financing
shall be subject to the terms and conditions of the Indentures, and all
other agreements and related documents governing the Bonds. Such terms
and conditions include, without limitation, restrictions governing the
remarketing of the Series 1994B Bonds that may adversely affect the
ability of the Authority to provide funds for the Conditional Grant.
7.3 Cooperation Regarding Financing The parties agree to
cooperate with one another and to provide such reasonable assistance and
information as may be required in connection with the Developer's
Financing and the Authority's Financing. Each party agrees to give
favorable consideration to reasonable changes in this Agreement or in
related documents that may be requested by prospective lenders or bond
underwriters or bond counsel, provided that the rights of such party are
not adversely affected by such changes.
SECTION 8 DEVELOPMENT PLAN AND REVIEW PROCEDURE
8.1 Development Plan The Developer shall construct the
Improvements on the Property according to the Development Plan to be
submitted by the Developer in accordance with Exhibit B.
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8.2 Design Development Documents In accordance with the
Schedule of Performance, the Developer shall prepare and submit to the
Authority and the City, Design Development Documents described in
Exhibit B. Unless deviations are specifically approved in writing by
the Authority, the Design Development Documents shall conform with and
be a logical development of the Development Plan and shall meet the
requirements of all applicable laws, codes and ordinances and laws and
regulations governing the tax exempt status of the Bonds.
8.3 Construction Documents In accordance with the Schedule of
Performance, the Developer shall prepare and submit to the Authority and
the City the Construction Documents described in Exhibit B. Unless
deviations are specifically approved in writing by the Authority, the
Construction Documents shall conform with and be a logical development
of the Development Plan and the Design Development Documents as approved
by the Authority and the City and shall meet the requirements of all
applicable laws, codes and ordinances and laws and regulations governing
the tax exempt status of the Bonds. Nothing in this Agreement shall
require the Authority to issue a final Certificate of Completion, as
hereinafter defined, until Completion of Construction of all of the
Improvements has occurred in accordance with the Agreement.
8.4 Approval, Changes If the Development Plan (and each of its
components, including, without limitation, the Schematic Design
Documents described in Exhibit B), the Design Development Documents and
the Construction Documents originally submitted conform with the
requirements of sections 8.1, 8.2 and 8.3 respectively and Exhibit B,
the Authority shall approve them in writing in accordance with the
Schedule of Performance. No further approval by the Authority shall be
required except with respect to any substantial change in the
Development Plan (or any component thereof) , the Design Development
Documents or the Construction Documents. Whether a change is
substantial shall be reasonably determined by the Authority. If the
Authority or the City rejects the Development Plan (or any of its
components) , the Design Development Documents or Construction Documents
in whole or in part, the Developer may submit a new or corrected
Development Plan (or applicable component thereof), or new or corrected
Design Development Documents or Construction Documents that are in
conformance with the requirements of the Agreement within the times
provided for each in the Schedule of Performance. If the Developer
desires to make any substantial change in the Development Plan, the
Design Development Documents or the Construction Documents after their
approval, the Developer shall submit the proposed change to the
Authority and City for approval; provided, however, no such change shall
impair the Authority's Financing or the tax - exempt status of the Bonds.
Approvals or rejections of proposed changes shall be made by the
Authority in accordance with the Schedule of Performance. All work with
respect to the construction of Improvements shall conform with the final
Construction Documents and the Final Budget as approved by the City and
the Authority.
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SECTION 9 CERTIFICATE OF COMPLETION
9.1 Completion of Construction of Improvements Promptly after
Completion of Construction of the Improvements in accordance with the
Agreement, the Authority will furnish the Developer with an appropriate
instrument so certifying in the form attached as Exhibit F (the
"Certificate of Completion "). The Certificate of Completion shall be
(and it shall be so provided in the Deed and in the certification
itself) a conclusive determination of satisfaction and termination of
the agreements and covenants in the Agreement and the Deed with respect
to the obligations of the Developer to construct the Improvements and
the dates for the beginning and completion thereof.
9.2 Recordation and Notice The Certificate of Completion shall
be in such form as will enable it to be recorded among the real estate
records of Pueblo County, Colorado. If the Authority shall refuse of
fail to provide the certification in accordance with the provision of
this section, the Authority shall, within thirty (30) days after written
request by the Developer, provide the Developer with a written
statement, indicating in what respect the Developer has failed to
complete construction of the Improvements in accordance with the
Agreement or is otherwise in default, and what measures or acts will be
necessary, in the reasonable opinion of the Authority, for the Developer
to take or perform in order to obtain such certification. Approval for
delivery of the Certificate of Completion shall not be unreasonably
withheld.
SECTION 10 INSURANCE
10.1 Prior to Completion of Construction At all times while the
Developer is engaged in preliminary work on the Property or adjacent
streets and during the period from the Commencement of Construction
until Completion of Construction, the Developer shall carry and, upon
request, will provide the Authority with proof of payment of premiums
and certificates of insurance as follows:
(a) Builder's risk insurance (with a deductible not to
exceed $25,000.00) in an amount equal to 100% of the replacement value
of the Improvements at the date of Completion of Construction;
(b) comprehensive general liability insurance (including
operations, contingent liability, operations of subcontractors,
completed operations, and contractual liability insurance) and umbrella
liability insurance with a combined single limit for both bodily injury
and property damage of not less than $3,000,000.00. Such insurance may
carry a deductible in an amount not to exceed $2,500.00 per claim for
property damage and $2,500.00 per claim for employee benefits;
(c) worker's compensation insurance, with statutory
coverage, including the amount of deductible permitted by statute.
The policies of insurance required under subparagraphs (a) through (c)
above shall be reasonably satisfactory to the Authority and the City,
placed with financially sound and reputable insurers, require the
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'insurer to give at least thirty (30) days advance written notice to the
Authority and the City in the event of cancellation or change in
coverage and shall name the Authority and the City as additional
insureds, specifying that the insurance shall be treated as primary
insurance in each case.
10.2 After Completion of Construction After the Closing and
until the Maturity Date of the Bonds, the Developer shall maintain, and
upon request of the Authority or the City, shall furnish proof of the
payment of the premiums for:
(a) "All Risk" insurance (including without limitation,
flood and earthquake coverage to the extent available) for not less than
one hundred percent (100 %) of the full replacement value of the Hotel
Facility;
(b) boiler and machinery insurance (including use and
occupancy /loss of income) for all direct loss or damage to property
caused by an accident as defined under a standard Boiler and Machinery
policy including boilers, pressure vessels and mechanical or electrical
equipment, in limits reasonably acceptable to the Authority and the
City;
(c) general liability insurance in the amount and coverages
required by the Hotel Management Agreement and the Convention Center
Management Agreement and otherwise reasonably acceptable to the
Authority and the City;
(d) such other additional insurance of the types and in the
amounts generally carried by similar hotels (including hotels with
facilities similar to the Convention Center Facility) and reasonably
acceptable to the Authority and the City.
All such insurance policies shall be issued by responsible companies
selected by the Developer, subject to the reasonable approval of the
Authority and the City. The Developer shall deliver to the Authority
and the City policies or certificates evidencing or stating that such
insurance is in force and effect. Each policy shall contain a provision
that the insurer shall not cancel or modify it without giving written
notice to the Developer and to the Authority and the City at least
thirty (30) days before the date the cancellation or modification
becomes effective and, unless the Authority's bond counsel advises
otherwise, shall name the Authority and the City as additional insureds,
specifying that the insurance shall be treated as primary insurance.
10.3 Repair or Reconstruction of Improvements The Developer
shall immediately notify the Authority and the City of any damage to the
Hotel Facility exceeding $50,000.00. If the Improvements are damaged or
destroyed by fire or other casualty prior to the Maturity Date, the
Developer shall proceed forthwith to repair, reconstruct and restore the
damaged Improvements to substantially the same condition or value as
existed prior to the damage or destruction, and the Developer, or
whoever receives the proceeds, shall apply the proceeds of any insurance
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relating to such damage or destruction to the payment or reimbursement
of the costs of such repair, reconstruction and restoration.
SECTION 11. REPRESENTATIONS AND WARRANTIES
11.1 Representations and Warranties by the Authority The
Authority represents and warrants as follows:
(a) The authority is an urban renewal authority duly
organized and existing under applicable law and has the right, power,
legal capacity and the authority to enter into the Agreement and has
authorized the execution, delivery and performance of this Agreement by
proper action of its Board of Commissioners.
(b) The Authority knows of no litigation or threatened
litigation, proceeding or investigation contesting the powers of the
Authority or its officials with respect to the Project, the Bonds, this
Agreement or the Improvements that has not been disclosed to the
Developer.
11.2 Representations and Warranties by the Developer The
Developer represents and warrants as follows:
(a) The Developer is a corporation duly organized, validly
existing and is in good standing under the laws of the State of
Minnesota Ge . The Developer is in good standing and qualified to
do business in the State of Colorado (to the extent required by the laws
of Colorado) and has the right, power, legal capacity and authority and
has duly authorized the execution, delivery and performance of this
Agreement by proper action of its Board of Directors.
(b) The execution and delivery of this Agreement and the
documents required hereunder and the consummation of the transactions
contemplated by the Agreement will not (i) violate any law, rule, order
or regulation applicable to the Developer or to the Developer's
governing documents; (ii) result in the breach or default under any
agreement or other instrument to which the Developer is a party or by
which it may be bound or affected; or (iii) permit any party to
terminate any such agreement or instrument or to accelerate the maturity
of any indebtedness or other obligation of the Developer.
(c) The Developer knows of no action, suit, proceeding or
investigation that is threatened or pending against the Developer or its
principals that has not been disclosed to the Authority. The filing or
service of any such suit prior to the delivery of a Certificate of
Completion for Completion of Construction of all of the Improvements
shall be disclosed immediately to the Authority by the Developer.
(d) Subject to obtaining the Developer's Financing (and in
the case of the Convention Center Facility, the ability of the Authority
to obtain the Authority's Financing) , the Developer has the necessary
financial and legal ability to construct the Improvements, perform the
Agreement and the other agreements incidental to such performance and to
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operate and manage the Hotel Facility and the Convention Center Facility
as contemplated by this Agreement.
SECTION 12 PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER
12.1 Representations as to Redevelopment The Developer
represents and agrees that its purchase of the Property and its other
undertakings pursuant to the Agreement are, and will be used for, the
purpose of redevelopment in accordance with this Agreement and not for
speculation, fee generation or land holding. The Developer further
recognizes that, in view of:
(a) The importance of the redevelopment of the Property to
the general welfare of the Authority and the City; and
(b) the substantial financing and other public aids that
have been made available pursuant to law by the City and the Authority
for the purposes of making such redevelopment possible; and
(c) the fact that a transfer of interest in the Developer
or of a part thereof, or any other act or transaction involving or
resulting in a significant change in the ownership or evidence of
ownership interest or with respect to the identity of the parties in
control of the Developer or the degree thereof, is for practical
purposes a transfer or disposition of the Property or the Improvements.
Therefore, the identity and qualifications of the Developer
and its principals as set forth in Exhibit H are of particular concern
to the City and the Authority. The Developer further recognizes that it
is because of such qualifications and identity of the Developer that the
Authority is entering into the Agreement with the Developer and, in so
doing, is further willing to accept and rely on the obligations of the
Developer for the faithful performance of all undertakings and covenants
hereby by it to be performed.
12.2 Prohibition Against Transfer of Property and Assignment of
Agreement The Developer further represents and agrees for itself and
its successors and assigns that prior to Completion of Construction as
certified by the Authority:
(a) Except by way of security for, and only for, the
purpose of obtaining the Developer's Financing, the Developer (except as
so authorized) has not made or created, and that it will not, prior to
the Completion of Construction, as certified by the Authority make or
create, or suffer to be made or created, any total or partial sale,
assignment, conveyance, or any trust or power or transfer in any other
mode or form of or with respect to the Agreement, the Improvements, or
the Property or any interest therein, or any contract or agreement to do
any of the same, without prior written approval of the Authority.
(b) The Authority shall be entitled to require as
conditions to any such approval that:
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(1) Any proposed transferee shall have the
qualifications and financial responsibility, as reasonably
determined by the Authority, necessary and adequate to fulfill the
obligations undertaken in the Agreement by the Developer.
(2) Any proposed transferee, by instrument in writing
satisfactory to the Authority and in form recordable among the real
estate records of Pueblo County shall have, for itself and its
successors and assigns, and for the benefit of the Authority,
expressly assumed all of the obligations of the Developer under the
Agreement and agreed to be subject to all the conditions and
restrictions to which the Developer is subject.
(3) There shall be submitted to the Authority for
review all instruments and other legal documents involved in
effecting transfer; and, if approved by the Authority, its approval
shall be indicated to the Developer in writing.
(4) The consideration payable for the transfer by the
transferee or on its behalf shall not exceed an amount representing
the Purchase Price and the actual unreimbursed Hard Costs and Soft
Costs (and other verifiable expenses paid by the Developer)
theretofore incurred by the Developer in construction of the
Improvements (the "Authorized Amount ") , it being the intent of this
provision to preclude assignment of the Agreement in whole or in
part for profit prior to the Completion of Construction.
Thereafter, any transfer by the Redeveloper shall be governed by
the applicable provisions of section 7.1. In the event that any
such assignment or transfer is made (and not cancelled) , the
Authority shall be entitled to increase the Purchase Price for the
Property by the amount that the consideration payable for the
assignment or transfer is in excess of the Authorized Amount, but
in no event less than the total amount specified in section 7. 1 (d) ,
which excess shall belong to and be forthwith paid to the Authority
by the Developer.
(5) The Developer and its transferee shall comply with
such other reasonable conditions as the Authority may find
desirable in order to achieve and safeguard the purposes of the
Act, the Urban Renewal Plan and the Bonds; provided, that in the
absence of specific written agreement by the Authority no such
transfer or approval by the Authority shall be deemed to relieve
the Developer or any other party bound in any way by the Agreement
or otherwise from any of its obligations with respect thereto.
12.3 Information as to Interest Holders In order to assure
compliance with this Agreement, the Developer agrees that during the
period between execution of the Agreement and the Maturity Date, the
Developer will promptly notify the Authority and the City of any and all
changes whatsoever in the ownership of interests, legal or beneficial,
or of any other act or transaction involving or resulting in any change
in the ownership of such interests or in the relative distribution
thereof; or with respect to the identity of the parties in control of
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'the Developer or the degree thereof, of which it or any of its parties
have been notified or otherwise have knowledge or information.
12.4 Method of Taking Title; Limited Partnership Provisions The
Developer may take title to the Hotel Parcel in a limited partnership,
or in a limited liability company. References in this section to
"general partner ", "limited partners" and "limited partnership" may also
be read, respectively, as "manager ", "member" and "limited liability
company ". With respect to any transfer of the Hotel Parcel or the Hotel
Facility to a limited partnership, the Developer agrees as follows:
(a) The Developer will act as general partner in the
limited partnership.
(b) Prior to the issuance of a Certificate of Completion
and without the prior written approval of the Authority:
(1) No person other than the general partner
identified under subparagraph (a) above shall have any
responsibility or authority for the conduct and control of the
business or the management of the affairs of the Developer;
(2) no person shall be admitted as a new general
partner in full substitution of such general partner;
(3) limited partners may be admitted to, withdrawn
from or substituted in such limited partnership of the Developer,
notwithstanding any other provision of the Agreement, provided that
such limited partnership is expressly bound by the provisions of
the Agreement and all limited partners so admitted have notice
thereof;
(4) there shall not be any voluntary dissolution of
such limited partnership or merger or consolidation with any other
entity;
(5) upon any dissolution of such limited partnership,
the general partner or any successor in interest shall remain bound
by the Agreement.
(c) The Developer's limited partnership agreement (and
certificates of limited partnership) shall not conflict with any of the
covenants, conditions, restrictions and limitations contained in the
Agreement, the Covenants, the Indentures or the Deed and shall not be
amended with respect thereto without the prior written approval of the
Authority.
(d) The term "person ", as used in this section, includes
any individual, partnership, corporation, limited liability company or
association.
(e) Nothing herein shall be deemed to relieve Developer
from its obligations hereunder without the prior written consent of the
Authority, which consent shall not be unreasonably withheld.
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SECTION 13 MORTGAGE FINANCING; RIGHTS OF MORTGAGEES
13.1 Limitation Upon Encumbrance of Property Prior to the
Completion of Construction, neither the Developer nor any successor in
interest to the Property or any part thereof shall engage in any
financing or any other transaction creating any mortgage or other
encumbrance or lien upon the Property, whether by express agreement or
operation of law, or suffer any encumbrance or lien to be made on or
attached to the Property (and then only to that portion of the Property
identified as part of and relating solely to the Hotel Facility) , except
for the purposes of obtaining:
(a) Funds only to the extent necessary for constructing the
Hotel Facility (including Hard Costs and Soft Costs), and
(b) such additional funds, if any, in an amount not to
exceed the Purchase Price paid by the Developer to the Authority.
After Completion of Construction, the applicable provisions of section
7.1 shall govern any financing, transfer or liens placed on the Hotel
Parcel or with respect to the Hotel Facility.
Until the Maturity Date, the Developer (or any successor in interest)
shall notify the Authority in writing in advance of any financing and
the terms and conditions it proposes to enter into with respect to the
Agreement. The Developer's Financing shall be subject to the written
approval of the Authority after review for compliance with this
Agreement. Additionally, the Developer shall promptly notify the
Authority of any encumbrance or lien that has been created on or
attached to the Property or the Improvements, whether by voluntary act
of the Developer or otherwise.
13.2 Mortgagee Not Obligated to Construct Notwithstanding any
of the provisions of the Agreement, prior to Completion of Construction
the holder or beneficiary ( "Holder ") of any Mortgage authorized by the
Agreement (including any such Holder who obtains title to the Hotel
Facility as a result of foreclosure proceedings, or action in lieu
thereof, but not including any other party who thereafter obtains title
to the Hotel Facility from or through such Holder or any other purchaser
at foreclosure sale) shall not be obligated by the provisions of the
Agreement to construct or complete the Hotel Facility or to guarantee
such construction or completion; nor shall any covenant or any other
provision in the Deed be construed to so obligate such Holder; provided,
that nothing in the Agreement shall be deemed or construed to permit or
authorize any such Holder to devote the Hotel Parcel to any other use or
to construct any improvements thereon, other than the Hotel Facility.
13.3 COPY of Notice of Default to Mortgagee The Authority shall
deliver a copy of any notice or demand to the Developer with respect to
any claimed breach or default by the Developer under the Agreement. The
Authority shall at the same time forward a copy of such notice or demand
to the Holder at the last address of such Holder shown in the records of
the Authority.
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13.4 Mortaaaee's Option to Cure Defaults Prior to Completion
of Construction, after any breach or default referred to in section
13.3, the Holder shall (insofar as the rights of the Authority are
concerned) have the right to cure or remedy such breach or default and
to add the cost thereof to the Mortgage debt and the lien of its
Mortgage; provided, that if the breach or default is with respect to
construction of the Hotel Facility, nothing contained in the Agreement
shall be deemed to permit or authorize such Holder, either before or
after foreclosure or action in lieu thereof, to undertake or continue
the construction or complete construction of the Hotel Facility (beyond
the extent necessary to conserve or protect the Hotel Facility or
construction already made) without first having expressly assumed the
obligation to the Authority as follows: Not later than thirty (30) days
after expiration of the time given the Developer by the Agreement to
cure said breach or default, the Holder shall give written notice to the
Authority of its intention to undertake or continue the construction or
Completion of Construction of the Hotel Facility in accordance with the
Agreement and shall undertake such work within thirty (30) days after
obtaining possession of the Hotel Parcel through foreclosure proceedings
or through a deed in lieu of foreclosure; provided, further, nothing
herein shall preclude the Authority from exercising its right of re-
entry pursuant to section 15.5 if the Holder fails to diligently proceed
with foreclosure proceedings or Completion of Construction of the Hotel
Facility. Any such Holder who shall properly complete the Hotel
Facility shall be entitled, upon written request by such Holder, to a
certification by the Authority to such effect in the manner provided in
section 9 of the Agreement.
13.5 Authority's Option to Pay Mortgage Debt or Purchase
Property In any case, where, subsequent to default or breach by the
Developer (or any successor in interest) under the Agreement, the Holder
of any Mortgage on the Hotel Parcel:
(a) Has, but does not exercise, the option to construct or
complete the Hotel Facility covered by its mortgage or deed of trust or
to which it has obtained title, and has not acted to protect its right
to cure such defaults in accordance with section 13.4; or
(b) undertakes construction or Completion of Construction
of the Hotel Facility but does not complete such construction within the
period agreed upon by the Authority and such Holder (which period shall
in any event be at least as long as the period prescribed for Completion
of Construction of the Improvements in the Agreement), and such default
shall not have been cured within thirty (30) days after written demand
by the Authority to do so (or if such default cannot be cured in said
period, the Holder has failed to commence to cure such default within
such period) , the Authority shall have (and every Mortgage instrument
made prior to Completion of Construction of the Improvements by the
Developer or successor in interest shall so provide)the option of paying
to the Holder the amount of the Mortgage debt and securing an assignment
of the Mortgage and the debt secured thereby, or, in the event ownership
of the Hotel Parcel has vested in such Holder by way of foreclosure or
action in lieu thereof, the Authority shall be entitled, at its option,
24
I ! 1 111! 1 �'I1!
'to conveyance to it of the Hotel Parcel upon payment to such Holder of
an amount equal to the sum of:
(1) The secured debt at the time of foreclosure or action
in lieu thereof (less all appropriate credits, including those
resulting from collection, application of rental and other income
received during foreclosure proceedings);
(2) all expenses with respect to the foreclosure; and
(3) the costs of the Hotel Facility approved by the
Authority and made by such Holder following default, but not
including any funds advanced toward construction of the Hotel
Facility by the Authority or the City, including, without
limitation, the Conditional Grant.
13.6 Authority's Option to Cure Mortgage Default In the event
of a default or breach of the mortgage debt prior to Completion of
Construction of the Improvements by the Developer or any successor in
interest, or in any obligations to any Holder, the Authority may at its
option cure such default or breach within thirty (30) days after the
time provided by the Agreement or by law for the Developer to remedy or
cure (or if such default cannot be cured in said period, the Authority
shall commence to cure such default within such period), in which case
the Authority shall be entitled, in addition to and without limitation
upon any other rights or remedies to which it shall be entitled by the
Agreement, operation of law or otherwise, to reimbursements from the
Developer or successor in interest of all costs and expenses incurred by
the Authority in curing such default or breach and to a lien upon the
Hotel Parcel for such reimbursements; provided, that any such lien shall
be subject always to the lien (including liens contemplated because of
advances yet to be made) of any Mortgage on the Hotel Parcel authorized
by the Agreement.
SECTION 14 TERMINATION
14.1 Termination by Developer Prior to Conveyance The Developer
shall have the right to terminate the Agreement if:
(a) Prior to the date specified in the Schedule of
Performance the Developer, after good faith efforts, fails to obtain
Developer's Financing or the parties are unable to agree upon a
procedure for disbursement of the Conditional Grant; or
(b) prior to the date specified in the Schedule of
Performance, the Authority fails to confirm that it has obtained the
Authority's Financing in accordance with section 7.2; or
(c) the City fails to provide the approvals required by
section 6.10 or approve any plat or similar subdivision of the Property
or fails to amend the Cooperation Agreement in accordance with section
4.10 or to amend the Urban Renewal Plan as may be required to permit the
construction of the Improvements or to accept dedications in accordance
with section 5.2; or
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(d) the City fails to vacate streets and alleys and to
otherwise alter traffic patterns in accordance with the Urban Renewal
Plan (as it may be amended to facilitate construction of the
Improvements) and the approved final Development Plan (or any component
thereof) within the times established in the Schedule of Performance; or
(e) despite the good faith efforts of both parties, they
fail to agree on any items requiring mutual agreement including, without
limitation, the Exhibits to this Agreement, the Preliminary Budget, the
Final Budget, the Convention Center Management Agreement, the Hotel
Management Agreement, the Parking Management Agreement, the Reciprocal
Easement Agreement and the Design and Construction Agreement, within the
times established in the Schedule of Performance; or
(f) the Developer reasonably and in good faith determines,
based upon the results of soils or environmental tests and within the
time periods set forth in the Schedule of Performance, that the soils or
environmental conditions are not satisfactory to carry out the
Development Plan or that public utilities are not available to carry out
the Development Plan; or
(g) the Developer is not in default under the Agreement and
the Authority does not tender the Deed as required hereunder; or
(h) unless waived by the Developer, title to the Hotel
Parcel does not conform with the requirements of section 3.4 at the time
of Closing;
(i) despite good faith and timely submittals in accordance
with the Agreement, the City or the Authority fails to approve the
Development Plan, the Design Development Documents or the Construction
Documents.
14.2 Termination by Authority Prior to Conveyance The Authority
shall have the right to terminate the Agreement if:
(a) Within the time specified in the Schedule of
Performance the Authority determines that it is unable to confirm that
it has obtained the Authority's Financing in accordance with section 7.2
on terms and conditions acceptable to the Authority, in its sole
discretion; or prior to the date specified in the Schedule of
Performance the Authority is unable to acquire all of the Property; or
(b) the City fails to approve any plat or similar
subdivision of the Property required to permit the construction of the
Improvements or to accept dedications in accordance with section 5.2; or
(c) the City fails provide the approvals required by
section 6.10 or to vacate streets and alleys and to otherwise alter
traffic patterns in accordance with the approved Construction Documents
or amend the Cooperation Agreement in accordance with section 4.10 or to
amend the Urban Renewal Plan as may be required to permit the
construction of the Improvements or to accept dedications in accordance
with section 5.2 and the approved final Development Plan (or any
26
"components thereof) within the times established in the Schedule of
Performance; or
(d) prior to the date specified in the Schedule of
Performance, the Developer fails to obtain the Developer's Financing or
the parties are unable to agree upon a procedure for disbursement of the
Conditional Grant; or
(e) despite the good faith efforts of both parties, they
fail to agree on any items requiring mutual agreement including, without
limitation, the Exhibits to this Agreement, the Preliminary Budget, the
Final Budget, the Convention Center Management Agreement, the Hotel
Management Agreement, the Parking Management Agreement, the Reciprocal
Easement Agreement and the Design and Construction Agreement, within the
times established in the Schedule of Performance; or
(f) the Developer determines, based upon the results of
soils or environmental tests and within the time periods set forth in
the Schedule of Performance that the soils or environmental conditions
are not satisfactory to carry out the Development Plan or that public
utilities are not available to carry out the Development Plan.
14.3 Action to Terminate Termination must occur within twenty
(20) days of the date the right to terminate accrues as described in
sections 14.1 and 14.2, and must be accomplished by written notification
to the other party in accordance with section 16.12. Failure to
terminate this Agreement for any such failure constitutes a waiver of
the right to terminate this Agreement for that particular failure only
and shall not constitute a waiver of the right to terminate the
Agreement for any other failure under such sections.
14.4 Effect of Termination If this Agreement is terminated
pursuant to section 14, the Deposit shall be promptly returned to the
Developer; each party shall pay its own costs and expenses related to
this Agreement; all plans, studies, surveys and documents relating to
the Convention Center Facility and /or paid for from the proceeds of the
Bonds shall be the exclusive property of and shall be delivered
forthwith to the Authority and this Agreement shall be null and void and
of no effect, and no action, claim or demand may be based on any term or
provision of this Agreement. In addition, the parties agree to execute
a mutual release or other instruments reasonably required to effectuate
and give notice of such termination.
SECTION 15 DEFAULT; REMEDIES
15.1 Default by Developer Default by Developer under the
Agreement shall mean one or more of the following events:
(a) Failure by the Developer to provide and maintain the
Deposit in accordance with section 2; or
(b) the Developer, in violation of this Agreement or the
Covenants, assigns or attempts to assign this Agreement, the
Improvements or any part of the Property, or any rights in the same; or
27
(c) there is any change in either the majority ownership
of the Developer or in the identity of the parties in control of the
Developer that violates this Agreement; or
(d) the Developer fails to provide the Development Plan,
the Design Development Documents, the Construction Documents or the
Hotel Management Agreement in accordance with this Agreement.
(e) the Developer fails to commence, diligently pursue and
complete construction of the Improvements as required by the Agreement;
or
(f) the Developer suffers or permits any lien, uncured
default or encumbrance on the Property or the Improvements, but a lien
shall not constitute a Default if Developer deposits in escrow with the
Authority sufficient funds to discharge the lien; or
(g) a Holder exercises any remedy provided by loan
documents, law or equity that creates a materially adverse effect on the
Property or the Improvements; or
(h) the Developer fails to materially observe or perform
any other covenant, obligation or agreement required of it under this
Agreement or the Covenants or to make good faith efforts to obtain
Developer's Financing;
and if any Default is not cured within the time provided in section 15.3
then the Authority may exercise any remedy available under sections
15.4, 15.5 and 15.7.
15.2 Default by the Authority Default by the Authority under
the Agreement shall mean one or more of the following events:
(a) the Authority fails to reasonably observe or perform
any covenant, obligation or agreement required of it under the Agreement
or to make good faith efforts to obtain the Authority's Financing;
and if any such Default is not cured within the time provided in section
15.3 then the Developer may exercise any remedy available under section
15.4 and 15.7.
15.3 Grace Periods Upon a Default by either party, such party
shall, upon written notice from the other, proceed immediately to cure
or remedy such Default and, in any event, such Default shall be cured
within thirty (30) days, ninety (90) days if the Default relates to the
date for Completion of Construction of Improvements, after receipt of
such notice, or such cure shall be commenced and diligently pursued to
completion within a reasonable time if curing cannot be reasonably
accomplished within thirty (30) days, or ninety (90) days if the Default
relates to the date for Completion of Construction of the Improvements.
15.4 Remedies on Default Whenever any Default occurs and is not
cured under section 15.3 of this Agreement, the nondefaulting party may
take any one or more of the following actions:
28
(a) Suspend performance under this Agreement until it
receives assurances from the defaulting party, deemed adequate by the
nondefaulting party, that the defaulting party will cure its default and
continue its performance under this Agreement;
(b) cancel and rescind the Agreement;
(c) in the case of the Authority, collect the full amount
of the Deposit it is holding and apply it to repay in part its damages,
it being agreed by the parties that the Authority's damages shall total
not less than the full amount of the Deposit;
(d) in the case of the Developer, return of the Deposit;
of Completion;
(e) in the case of the Authority, withhold the Certificate
(f) in the case of the Authority, collect the Conditional
Grant and the Fair Market value of the Hotel Parcel and to apply the
proceeds in accordance with section 7.1(d);
(g) in the case of the Authority, terminate the right of
the Developer or its successors or assigns to use and /or manage the
Convention Center Facility, notwithstanding the provisions of any other
agreement to the contrary;
(h) take whatever legal or administrative action or
institute such proceedings as may be necessary or desirable in its
opinion to enforce observance or performance of this Agreement,
including, without limitation, specific performance or to seek any
other right or remedy at law or in equity, including damages.
15.5 Revestina Title in the Authority If subsequent to
conveyance of the Hotel Parcel to the Developer and prior to Completion
of Construction of the Hotel Facility as certified by the Authority, the
Developer suffers or permits a Default that is not cured pursuant to
section 15.3, then, in addition to any other right or remedy under the
Agreement, the Authority shall have the right to terminate and re -enter
and take possession of the Hotel Parcel and to revest in the Authority
any estate conveyed or transferred to the Developer, it being the intent
of this provision, together with other provisions of the Agreement, that
the conveyance of the Hotel Parcel to the Developer shall be made upon,
and the Deed shall contain a condition subsequent to the effect that, in
the event of any such uncured Default, the Authority, at this option,
may declare a termination in favor of the Authority of the title, and of
all rights and interest in and to the Hotel Parcel conveyed by the Deed
to the Developer, and that such title, and all rights and interests in
and to the Hotel Parcel, shall revest in the Authority; provided, that,
notwithstanding anything herein to the contrary, such condition
subsequent and any revesting of title as a result, shall always be
subject to and limited by, and shall not defeat, render invalid or limit
in any way (i) the lien of a Mortgage authorized and permitted by the
Agreement, and (ii) any rights or interests provided in the Agreement
for the protection of the Holder of such Mortgage.
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15.6 Resale of Reacquired Property: Disposition of Proceeds
Upon the revesting in the Authority of title to the Hotel Parcel as
provided in section 15.5 the Authority shall, pursuant to its
responsibilities under law, use its good faith efforts to resell the
Hotel Parcel (subject to the rights of the Holder of such Mortgage) , as
soon and in such manner as the Authority shall find feasible and
consistent with the objectives of applicable law and of the Urban
Renewal Plan, to a qualified and responsible party or parties (as
determined by the Authority) who will assume the obligations of making
or completing the Hotel Facility as shall be satisfactory to the
Authority in accordance with the uses specified for the Hotel Parcel in
the Urban Renewal Plan, the Covenants and other applicable regulations.
Upon such resale of the Hotel Parcel, the proceeds thereof shall be
applied:
(a) First, to reimburse the Authority for all costs and
expenses of any nature whatsoever (including, but not limited to, legal
fees and salaries of personnel) incurred in connection with the
recapture, repair, management and resale of the Hotel Parcel; an amount
equal to such taxes, assessments and water and sewer charges (as
determined by appropriate City officials) as would have been payable if
the Hotel Parcel were not exempt therefrom because of its ownership by
the Authority; the amount of any funds expended by the City and the
Authority in discharging or removing any liens or encumbrances levied
against the Hotel Parcel due to acts, obligations or defaults of the
Developer or its successors, transferees or contractors, whether such
liens are legally enforceable against the Hotel Parcel after such re-
entry (and nothing in the Agreement shall be construed as a waiver of
any statutory or common law exemptions against execution and levy) ; and
any and all expenditures made or obligations incurred by the Authority
with respect to the Hotel Facility or any part thereof or the Hotel
Parcel or any part thereof; and any amounts otherwise owing to the
Authority by the Developer or its successors or transferees; and
(b) second, to reimburse the Developer, its successor or
transferee, up to the amount equal to:
(1) the sum of the Purchase Price actually paid by
Developer for the Hotel Parcel, if any, and any actual out -of-
pocket costs and expenses incurred by it in making any of the Hotel
Facility Improvements on the Hotel Parcel, less
(2) the Conditional Grant, the Fair Market Value of
the Hotel Parcel, any gains or income withdrawn or made by the
Developer from the Agreement, the Hotel Parcel or the Hotel
Facility.
Any balance remaining after such reimbursement shall be retained by the
Authority as its property.
15.7 Other Rights and Remedies The Authority and Developer
shall have the right to institute such actions or proceedings as either
may deem desirable for effectuating the purposes of this section 15,
including the right to execute and record or file among the public land
W
records in the office in which the Deed or other transfer document is
recorded a written declaration of the termination of all the right,
title and interest of the Developer, and its successors in interest and
assigns in the Hotel Parcel. Notwithstanding any language herein to the
contrary, the City may also enforce any of the rights and remedies of
the Authority under this Agreement.
15.8 Delays; Waivers Any delay by either party in instituting
or prosecuting any actions or proceedings or otherwise asserting its
right under the Agreement shall not operate as a waiver of such rights
or deprive it of or limit such rights in any way; nor shall any waiver
in fact made by such party with respect to any specific default by the
other party under the Agreement be considered or treated as a waiver of
the rights with respect to any other defaults by the other party under
the Agreement or with respect to the particular default except to the
extent specifically waived in writing. It is the intent of the parties
that this provision will enable each party to avoid the risk of being
limited in the exercise of the remedy provided in the Agreement by
waiver, laches or otherwise in the exercise of such remedy at a time
when it may still hope to resolve the problems created by the default
involved.
15.9 Enforced Delay in Performance for Causes Beyond Control of
Party Anything in the Agreement to the contrary notwithstanding, for
purposes of any of the provisions of the Agreement, neither the
Authority nor the Developer, as the case may be, nor any successor in
interest, shall be considered in breach of, or in default of, its
obligations with respect to the Agreement or the preparation of the
Property for redevelopment, or the Commencement of Construction of
Completion of Construction of the Improvements, or progress with respect
thereto, in the event of enforced delay in the performance of such
obligations due to causes beyond its control and without its fault of
negligence, including, but not restricted to, acts of God, acts of the
public enemy, acts of the Federal, State or local government, acts of
the other party, acts of third parties (including the effect of any
petitions for initiative or referendum), the effect of any condition
precedent to any obligation of either party over which such party has no
control, the effect of litigation, acts of courts, fires, floods,
epidemics, quarantine restrictions, strikes, freight embargoes, and
unusually severe weather or delays of subcontractors or materialmen due
to such causes, it being the purpose and intent of this provision that
in the event of the occurrence of any such enforced delay, the time or
times for performance of the obligations of the Authority or of the
Developer with respect to the terms of the Agreement, as the case may
be, shall be extended for a period of the enforced delay; provided, that
the party seeking the benefit of the provisions of this section shall,
within fourteen (14) days after such party knows of, or should have
known by the exercise of reasonable diligence of any such enforced
delay, first notify the other party thereof in writing in the manner
provided for herein of the cause or causes thereof, and claim the right
to an extension for the period of the enforced delay.
15.10 Rights and Remedies Cumulative The rights and remedies of
the parties to the Agreement are cumulative, and the exercise by either
31
'party of any one or more of such remedies shall not preclude the
exercise by it, at the same or different times, of any other such
remedies for any other default or breach by any other party.
SECTION 16 MISCELLANEOUS
16.1 Assignment to Trustee; Pledge of Payments The Authority
represents and Developer acknowledges, that the Authority may have
assigned its rights and remedies including its right to receive any and
all payments from the Developer under the Agreement to a trustee as part
of the Authority's Financing. The Developer further acknowledges that
as a result, any and all monies payable by the Developer to the
Authority under the Agreement are pledged to the payment of the
principal of, premium, if any, and interest on the Bonds. The Developer
agrees that the Agreement may be enforced by the trustee on behalf of
Authority, noteholder or bondholder (as defined in the Indentures) to
the extent and in the manner set forth in Indentures.
16.2 Conflicts of Interest None of the following shall have any
personal interest, direct or indirect, in the Agreement: A member of
the governing body of the Authority or of the City; an employee of the
Authority or of the City who exercises responsibility concerning the
Project, or an individual or firm retained by the City or the Authority
who has performed consulting services in connection with the Project.
None of the above persons or entities shall participate in any decision
relating to the Agreement that effects his or her personal interests or
the interests of any corporation, partnership or association in which he
or she is directly or indirectly interested.
16.3 Antidiscrimination The Developer, for itself and its
successors and assigns, agrees that in the construction of the
Improvements provided for in the Agreement and in the use and occupancy
of the Property and the Improvements, the Developer will not
discriminate against any employee or applicant for employment because of
race, color, creed, religion, sex, disability, marital status, ancestry
or national origin.
16.4 Provisions Not Merged with Deed None of the provisions of
the Agreement are intended to or shall be merged by reason of any deed
transferring possession or title to the Hotel Parcel from the Authority
to the Developer or any successor in interest, and such deed shall not
be deemed to affect or impair the provisions and covenants of the
Agreement.
16.5 Title of Sections Any titles of the several parts and
sections of the Agreement are inserted for convenience of reference only
and shall be disregarded in construing or interpreting any of its
provisions.
16.6 No Third -Party Beneficiaries Except for the City and
specific rights in favor of Mortgagees or of a trustee for the Bonds, no
third -party beneficiary rights are created in favor of any person not a
party to the Agreement.
32
- 16.7 Venue and Applicable Law Any action arising out of the
Agreement or the Covenants shall be brought in the Pueblo County
District Court and the laws of the State of Colorado shall govern the
interpretation and enforcement of the Agreement.
16.8 Nonliability of Authority Officials Agents and Employees
No council member, board member, commissioner, official, employee,
consultant, attorney or agent of the Authority or the City shall be
personally liable to the Developer under the Agreement or in the event
of any default or breach by the City or Authority or for any amount that
may become due to the Developer under the Agreement.
16.9 Authority or City Not a Partner Notwithstanding any
language in this Agreement or any other agreement, representation or
warranty to the contrary, neither the authority nor the City shall be
deemed or constituted a partner or joint venturer of the Developer, the
Hotel Operator or any operator or manger of the Convention Center
Facility, and neither the Authority nor the City shall be responsible
for any debt or liability of the Developer or such operator or manager.
16.10 Integrated Contract It is intended by the parties that the
Agreement is an integrated contract and that invalidation of any of its
provisions by judgment or court order shall in no way affect any of the
other provisions, which shall remain in full force and effect unless the
parties otherwise agree to an amendment.
16.11 Counterparts The Agreement is executed in five (5)
counterparts, each of which shall constitute one and the same
instrument.
16.12 Notices A notice, demand, or other communication under the
Agreement by any party to the other shall be in writing and sufficiently
given if delivered in person or if it is delivered by overnight courier
service with guaranteed next -day delivery or by certified mail, return
receipt requested, postage prepaid, and
(a) in the case of the Developer, is addressed to or
delivered to the Developer as follows:
Intra Financial Corporation
14 South 5th Avenue, Suite 300
St. Cloud Minnesota 56301
with a copy to:
N. Walter Graff, Esq.
Best & Flanagan
4000 First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402
33
(b) in the case of the Authority, is addressed to or
delivered to the Authority as follows:
1 City Hall Place
Pueblo, Colorado 81003
with copies to:
Thomas E. Jagger, Esq.
127 Thatcher Building
Pueblo, Colorado 81003
and
Joseph A. Fortino, Esq.
Pueblo Urban Renewal Authority
c/o City Manager's Office
1 City Hall Place
Pueblo, Colorado 81003
or at such other address with respect to any such party as that party
may, from time to time, designate in writing and forward to the other as
provided in this section.
16.13 Good Faith of Parties In performance of the Agreement or
in considering any requested extension of time or in the giving of any
approval, the parties agree that each will act in good faith and will
not act unreasonably, arbitrarily, capriciously or unreasonably withhold
any approval required by the Agreement.
16.14 Exhibits Merged All Exhibits annexed to the Agreement
shall be deemed to be expressly integrated herein.
16.15 Approval of Bond Counsel The Agreement and each of the
other agreements and documents required in connection with the
transactions contemplated in the Agreement shall be subject to the
approval of the Authority's bond counsel.
16.16 Days If the day for any performance or event provided for
herein is a Saturday, Sunday or other day on which either national banks
or the office of the Clerk and Recorder of Pueblo County, Colorado, is
not open for the regular transaction of business, such day therefor
shall be extended until the next day on which said banks or said office
are open for the transaction of business.
16.17 Further Assurances Each party agrees to execute such
documents and take such action as shall be reasonably requested by the
other party to confirm, clarify or effectuate the provisions of this
Agreement.
16.18 Certifications Each party agrees to execute such documents
as the other party may reasonably request to verify or confirm the
status of this Agreement and of the performance of the obligations
34
hereunder and such other matters as the requesting party may reasonably
request.
16.19 Amendments This Agreement shall not be amended except by
written instrument. Each amendment, which shall be in wiring and signed
and delivered by the parties, shall be effective to amend the provisions
hereof.
16.20 Survival of Representations, Warranties and Covenants No
representations or warranties whatever are made by any party to this
Agreement except as specifically set forth in this Agreement. The
representations, warranties and indemnities made by the parties to this
Agreement and the covenants and agreements to be performed or complied
with by the respective parties under this Agreement shall be deemed to
be continuing. Nothing in this section shall affect the obligations and
indemnities of the parties with respect to covenants and agreements
contained in this Agreement that are permitted or required to be
performed in whole or in part after issuance of a Certificate of
Completion, including, without limitation the Covenants.
16.21 Minor Changes This Agreement has been approved in
substantially the form submitted to the governing bodies of the parties.
The officers executing the Agreement have been authorized to make, and
may have made, minor changes in the Agreement and the attached exhibits
as they have considered necessary. So long as such changes were
consistent with the intent and understanding of the parties at the time
of approval by the governing bodies, the execution of the Agreement
shall constitute conclusive evidence of the approval of such changes by
the respective parties.
IN WITNESS WHEREOF, the Authority and the Developer have caused the
Agreement to be duly executed as of the day first above written.
AUTHORITY:
THE URBAN RENEWAL AUTHORITY OF PUEBLO
COLORADO
By:
DEVELOPER:
ATTEST:
Secretary
.s 5
EXHIBIT A -1
Legal Description of the Property
All of PUEBLO CENTER SUBDIVISION, FILING NO. 3,
according to the recorded plat thereof,
City of Pueblo,
County of Pueblo,
State of Colorado.
A -1
EXHIBIT A -2
Legal Description of the Convention Center Parcel
All of that part of PUEBLO CENTER SUBDIVISION, FILING NO. 3,
described as follows:
(To be completed in accordance with the
Schedule of Performance)
City of Pueblo,
County of Pueblo,
State of Colorado.
A -2
EXHIBIT A -3
Legal Description of the Hotel Parcel
All of that part of PUEBLO CENTER SUBDIVISION, FILING NO. 3,
described as follows:
(To be completed in accordance with the
Schedule of Performance)
City of Pueblo,
County of Pueblo,
State of Colorado.
A -3
EXHIBIT B
Development Plan
The Development Plan shall consist of the following documents and drawings.
a. The Program Plan In accordance with the Schedule of Performance, and after
consultation with the Authority and the City, the Developer shall prepare and submit to
the City and the Authority a Program Plan showing and describing the boundaries, size,
use and location of the Improvements, including common facilities, furniture, fixtures,
equipment and the Preliminary Budget described in section 6.9. The Program Plan shall
be reviewed and approved or disapproved by the Authority and the City in accordance
with the Schedule of Performance. If disapproved by either the Authority or the City,
the Developer shall submit a corrected Program Plan acceptable to the Authority and the
City on or before the date specified in the Schedule of Performance.
b. Schematic Design Documents Based upon the Program Plan approved by the City and
the Authority and in accordance with the Schedule of Performance, the Developer shall
prepare and submit to the Authority and the City Schematic Design Documents consisting
of the following:
A Site Analysis and Use Plan to be developed in accordance with the Urban
Renewal Plan, the City's Comprehensive Development Plan, the Central Pueblo
Framework Plan and the City's Transportation Plan showing adjacent structures
and streets and dimensions of each structure to be erected on Property.
2. A Site Plan based upon topography, drainage and a pedestrian/vehicular
circulation study showing in outline: proposed lot lines with dimensions; building
outlines, pavements, steps, ramps, parking spaces and adjacent streets with
dimensions; any additional street, alley and utility vacations (and detour analysis)
in accordance with section 4.10; recreation areas; trash containment areas;
available utility locations; existing and proposed drainage concepts; significant
topography (delineated); handicap accessible routes and designated parking and
circulation design.
3. A Building Floor Plan showing typical hotel room design; conference facilities;
a common use plan; and other plans illustrating the scale and relationship of
project components.
4. Exterior Building Elevations showing typical building sides for all building types,
proposed materials and roof pitches.
5. A Typical Wall Section showing foundation -to -ridge view of all structures,
proposed materials and roof pitches.
6. A Landscape Plan showing property lines and dimensions; outlines and
dimensions of each proposed structure; outlines of streets, walks, parking areas,
patios and any other paved areas; location of trees and shrubs to be planted in
relation to the proposed buildings; outline of lawn areas and planting beds.
7. Cost Estimates updating the Preliminary Budget based upon current areas, volume
or other unit costs with a breakdown to include, without limitation, separate line
items for: the Convention Center Facility, the Hotel Facility; all joint -use
facilities, grading, utilities, landscaping; circulation /parking and drainage.
Unless deviations have been specifically approved by the Authority and the City in
accordance with section 8.4, all components of the Development Plan shall conform with
and shall be a logical development of the Submittal Documents and the components
previously approved by the Authority and the City and with the requirements of section
8.1
Design Development Documents
In accordance with the Schedule of Performance and the requirements of section 8.2, the
Developer shall prepare and submit to the Authority and the City the Design Development
Documents consisting of drawings and other documents more fully describing the size and
character of the Improvements, including landscaping, architectural, civil, structural, mechanical
and electrical systems, materials and related elements as follows:
a. A Site Plan addressing any unusual site conditions revealed by site engineering reports
showing property lines and dimensions; an outline of adjacent structures and streets; an
outline and dimensions of each structure proposed for the Property; contours indicating
original and final grades; proposed drainage; location and dimensions of any rights -of-
way or easements; location and dimensions of parking areas, including the number of
parking spaces, location and dimensions (square feet) of other land uses such as patios,
recreation areas, and lawn areas; placement of trees and shrubs; proposed layout and size
of utilities (water, sewerage, gas, electric and telephone) and distance to utility lead -ins
and service connections and all required off -site work.
b. Building Floor Plans showing overall building dimensions; wall thicknesses; handicap
accessibility; complete building plan; Hotel Facility Plan; Convention Center Facility
Plan; joint -use facility plan with labeling; roof overhangs, dimensioned; adjacent
pavements and other structures; section cut lines.
C. Hotel Floor Plans showing overall floor and room or suite dimensions; wall thicknesses;
typical rooms; and handicap accessible /adaptable unit labeling.
d. Exterior Building Elevations showing typical building sides, for all building types;
proposed materials labeling and roof pitches.
e. Exterior Building Perspective showing main entrance view and others as may be mutually
agreed upon.
f. Wall Sections showing typical wall, roof, floor and foundation systems, unique
conditions, if any; proposed material labeling; full vertical dimensioning and roof pitches.
g. Foundation Plans showing overall building dimensions; wall thickness; complete typical
building designs and section cut lines.
h. Mechanical Plans
i. Plumbing Plans
j. Electrical Plans
k. Landscape Plans showing list of plant materials, including the common plant name, and
an identification number with cross reference to the landscaping plan.
1. Outline Specifications showing proposed site, architectural, structural, mechanical and
electrical systems and materials; utilization of a trade - divided format; a 16- division
C.S.I. format or other format acceptable to the City and the Authority.
m. Utility Selection Analysis for heating and cooling utility rates for available utilities and
life cycle cost justification for the selected utilities.
n. A Cost Estimate that updates the Preliminary Budget. Estimates shall be based upon
construction costs as of the Design Development Document submission date and shall
reflect the Developer's project cost estimates with a breakdown per the 16- division C.S.I.
format by Hotel Facility, Convention Center Facility and all joint -use facilities.
The Design Development Documents shall be reviewed and approved or disapproved by the
Authority and the City in accordance with section 8.4. After approval, any and all changes in
the approved Design Development Documents shall be governed by the requirements of section
8.4
Construction Documents
In accordance with the Schedule of Performance and the requirements of section 8.3, the
Developer shall prepare and submit to the Authority and the City, the Construction Documents
consisting of drawings and specifications setting forth in detail the requirements for the
construction of the Improvements:
a. Site plans, including a separate plot plan, grading plan, and landscaping plan for the
Improvements;
b. basements and foundation plans;
C. building floor plans;
d. a joint use facility floor plan;
e. Hotel Facility floor plan (including typical room or suite floor plans);
f. roof plan;
g. building elevations;
h. wall sections;
i. detail and finish schedules;
j. reflected coiling plans;
k. structural plans;
1. mechanical plans, including heating system, air- conditioning system and plumbing plans;
m. electrical system plans, including, without limitation, the Convention Center Facility
sound system;
n. construction specifications defining the scope of construction and establishing the quality
of materials and workmanship, which specifications shall be consistent with the approved
Development Design Documents;
o. building procedures and bid documents acceptable to the Authority and the City as
required by section 6.11
P_ final and complete costs estimates per each of the sixteen (16) divisions in conformance
with the Uniform System of Construction Specification and the Final Budget, as
confirmed by bid secured in connection with the competitive bidding procedure described
in section 6.11.
The Construction Documents shall be reviewed and approved by the Authority and the City in
accordance with section 8.4. After approval, any and all changes in the approved Design
Development Documents shall be governed by the requirements of section 8.4.
.,
EXHIBIT C
Schedule of Performance
Event Date or Time
1. Effective date of the Agreement, January 17,
including Exhibits A -1, B, C, D, F, G, 1995
and H
2. Developer delivers Deposit to Authority January 17,
1995
3. Authority causes delivery of Commitments January 17,
to Developer 1995
4. Developer submits Architect's January 17,
agreements, Program Plan and Preliminary 1995
Budget to Authority and City
5. Authority and City approve or reject January 30,
Architect's agreement, Program Plan and 1995
Preliminary Budget
6. Final date for Developer to submit
corrected Architect's agreement, Program
Plan and Preliminary Budget to Authority
and City
7. Authority and City approve corrected
Architect's agreement, Program Plan
and Preliminary Budget
8. Developer completes tests, surveys and
confirms availability of utilities
9. Date for agreement on Design and
Construction Agreement
10. Date for agreement on Public
Infrastructure and allocation of costs
re shared or joint facilities
Febuary 6, 1995
February 20,
1995
February 20,
1995
March 6, 1995
March 6, 1995
C -1
11. Developer submits name of Hotel Operator March 6, 1995
and Hotel Management Agreement to
Authority and City
12. Date for agreement on Convention Center March 6, 1995
Management Agreement, the Reciprocal
Easement Agreement and the Parking
Management Agreement
13. Authority and City approve Hotel March 6, 1995
Operator and Hotel Management Agreement
14. Developer submits Schematic Design March 13, 1995
Documents to Authority and City
15. Authority and City approve or reject March 27, 1995
Schematic Design Documents
16. Final date for Developer to submit April 3, 1995
corrected Schematic Design Documents to
Authority and City
17. Authority and City approve corrected April 17, 1995
Schematic Design Documents
18. Developer and Authority agree on legal April 17, 1995
descriptions and dimensions of
Convention Center Parcel and Hotel
Parcel
19. City begins necessary street, alley and April 24, 1995
utility vacations
20. Developer submits Design Development May 1, 1995
Documents to Authority and the City
21. Authority and City approve or reject May 15, 1995
Design Development Documents
22. Final date for Developer to submit May 22, 1995
corrected Design Development Documents
to Authority and City
23. Authority obtains modification of May 29, 1995
Cooperation Agreement
24. Developer submits evidence of June 12, 1995
Developer's Financing to Authority
25. Authority approves Developer's Financing June 26, 1995
C -2
26.
City completes necessary street, alley
June 26, 1995
and utility vacations and any necessary
zoning or rezoning of the Property
27.
Developer submits Construction Documents
July 3, 1995
and Final Budget to Authority and City
28.
Authority and City approve or reject
July 17, 1995
Construction Documents and Final Budget
29.
Final date for Developer to submit
July 24, 1995
Construction Documents and Final Budget
that meet all applicable requirements
30.
Final date for Developer to comply with
August 7, 1995
City bid requirements
31.
Final date for Authority to determine
August 14, 1995
adequacy of Authority's Financing
32.
Authority completes acquisition of
August 21, 1995
Property
33.
Date of Closing on Hotel Parcel
August 21, 1995
34. Date for Commencement of Construction of August 28, 1995
Improvements by Developer
35. Date for Completions of Construction of May 7, 1996
Improvements by Developer
C -3
Pill 011$1101��
EXHIBIT D
SPECIAL WARRANTY DEED
THE URBAN RENEWAL AUTHORITY OF PUEBLO COLORADO ( "Grantor ") , a
body corporate and politic of the State of Colorado, whose address
is 1 City Hall Place, Pueblo, Colorado 81003, for the
consideration of Ten Dollars ($10.00) and other good and valuable
consideration, receipt and adequacy of which are hereby
acknowledged, sells and conveys by this deed (the "Deed ") to INTRA
FINANCIAL CORPORATION, a Minnesota corporation ( "Grantee "), whose
address is 14 South 5th Avenue, Suite 300, St. Cloud Minnesota
56301, the real property (the "Property ") described in Exhibit A,
attached to and made a part hereof, with all of its appurtenances
and warrants the title to the same against all and every person or
persons lawfully claiming or to claim the whole or any part
thereof, by, through or under the Grantor, but if:
1. the Grantor records a "Demand to Commence Construction ":
and the Property shall remain totally unimproved thirty (30) days
after the date of such recording; or
2. the Grantor records a "Demand to Cure Defects" and the
Improvements on the Property do not, at the end of thirty (30) days
after the date of such recording, comply with the provision of said
demand; or
3. the Grantor records a "Demand to Diligently Go Forward
with Construction" and thirty (30) days after the date of such
recording there has not been compliance with the provisions of said
demand; or
4. the Grantor records a "Demand to Complete Construction"
and ninety (90) days after the date of such recording there has not
been compliance with the provisions of said demand; or
5. the Property shall remain encumbered in any manner
whatsoever other than by a mortgage or other security given by the
Grantee for the purposes of financing the purchase of the Property
and construction of the Improvements thereon at a date thirty (30)
days after the date of recording of a written "Demand for Removal
of Encumbrance" by the Grantor (unless the Grantee has recorded
written evidence, bearing the Grantor's approval of a procedure for
removal of such encumbrance); or
6. the Grantor records "Demand to Cure Change in Ownership"
and thirty (30) days after the date of such recording there has not
been compliance with the provisions of said demand;
then, subject to and in accordance with the provisions of the
Disposition and Development Agreement (the "DDA") by and between
D -1
MMI 11:1111111
the Authority and, the Covenants by and between the Grantor and
Grantee dated ,199 , and recorded , 199 , in Book
at page of the records of the Clerk and Recorder of Pueblo
County, and within twenty (20) years from and after the date of
this Deed, the Grantor shall have the right to re -enter and take
possession of the Property and to revest in the Grantor the estate
conveyed by this Deed subject only to any mortgage or other
security given by the Grantee for the purposes of financing the
purchase of the Property and construction of the Improvements
thereon. The Grantee expressly agrees for itself and its
successors in interest that the interest so reserved to the Grantor
is a right of re -entry for condition broken (the "Right of Re-
Entry").
Such condition subsequent shall be satisfied and the Right of
Re -Entry shall be deemed to have been renounced only upon the
delivery of a Certificate of Completion in the form of Exhibit B,
attached to and made a part hereof, duly executed and acknowledged
by the Grantor and filed for record. Such renunciation shall
apply only to the property therein described and shall operate to
free the designated property from the above condition subsequent
and to divest the Grantor of the Right of Re- Entry.
Signed and delivered this day of
ATTEST:
Secretary
Accepted and agreed to this
199
ATTEST:
Secretary
, 199
URBAN RENEWAL AUTHORITY OF PUEBLO
By:
Chairman
day of
By:
D -2
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day
of 19_, by
as Chairman,
and , as Secretary of the Urban Renewal
Authority of Pueblo, Colorado, a body corporate and politic.
My commission expires:
WITNESS my hand and official seal.
Notary Public
g:131364510071dda.x -e D-3
EXHIBIT E
PUBLIC INFRASTRUCTURE AND COST ALLOCATION
OF SHARED OR JOINT USE FACILITIES
(To be completed in accordance with the
Schedule of Performance)
EXHIBIT F
CERTIFICATE OF COMPLETION OF CONSTRUCTION
AND RENUNCIATION OF RIGHT OF RE -ENTRY
FOR CONDITION BROKEN
THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO, a body
corporate and politic of the State of Colorado (the "Authority "),
Of 1 City Hall Place, Pueblo, Colorado 81003, hereby certifies
that all of the improvements (the "Improvements ") constructed on
the real property described in Exhibit A, attached to and made a
part hereof, have been satisfactorily completed, and all of the
Improvements conform with the uses specified in the Urban Renewal
Plan, as amended, which was approved and adopted by the City
Council of the City of Pueblo, Colorado.
This Certificate of Completion shall be a conclusive
satisfaction of the obligation of INTRA FINANCIAL CORPORATION, a
Minnesota corporation (the "Developer "), to construct the
Improvements on the real property described in Exhibit A, as
evidenced by the special warranty deed (the "Deed ") dated
recorded at
reception no. , in the office of the County Clerk and
Recorder, Pueblo County, Colorado.
The Authority's Right of Re -entry for Condition Broken as
reserved in the Deed is hereby terminated as to the real property
described in Exhibit A. The condition recited in the Deed has been
fulfilled as to such real property. The Authority renounces said
right of Re -entry in favor of INTRA FINANCIAL CORPORATION, a
Minnesota corporation, its successors and assigns, to have and to
hold the real property described in Exhibit A forever, so that
neither the Authority nor any of its successors in interest shall
at any time hereafter have, claim or demand any right, title or
interest in or to the property described in Exhibit A, or any part
thereof, by virtue of the Right of Re -entry for Condition Broken
reserved to the Authority in the Deed.
Signed and delivered this day of
, 199
URBAN RENEWAL AUTHORITY OF PUEBLO,
COLORADO
ATTEST:
Secretary
By:
F -1
Chairman
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day
of , 19 , by
_ as Chairman,
and , as Secretary of the Urban Renewal
Authority of Pueblo, Colorado, a body corporate and politic.
My commission expires:
WITNESS my hand and official seal.
Notary Public
F -2
Exhibit G
COVENANTS
(Subject to modification to conform with amendments to the
Agreement prior to Closing)
These covenants (the "Covenants ") are made and entered into
this day of , 1995, by and between the URBAN RENEWAL
AUTHORITY OF PUEBLO, COLORADO, a body corporate and politic of the
State of Colorado (the "Authority ") and INTRA FINANCIAL
CORPORATION, a Minnesota corporation (the "Developer ").
RECITALS
A. The Authority is carrying out the Amended Phase One Urban
Renewal Project for Downtown Pueblo (the "Project ") in accordance
with the Urban Renewal Plan dated January 28, 1988 (the "Plan ") , as
the Plan may be amended from time to time. Pursuant to the
Agreement for Disposition and Development by and between the
parties dated January 9, 1995 (the "DDA"), the Developer is
constructing the Improvements on the property.
B. Pursuant to applicable law, the City of Pueblo, Colorado (the
"City ") and the Authority have provided public support and
financing to assist in the development and construction of the
Improvements.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
mutual obligations of the parties and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties covenant and agree as follows:
1. Definitions
a. "Bonds" means the $7,275,000 aggregate principal amount
of the Series 1994A Urban Renewal Authority of Pueblo, Colorado,
Revenue Refunding Bonds (Phase One Urban Renewal Project) and the
$2,225,000 aggregate principal amount of the Authority's Series
1994B Subordinate Revenue Refunding Bonds (Phase One Urban Renewal
Project). "Bonds" shall also include any bonds or other
obligations issued to refund or refinance any Bonds, including,
without limitation, costs of issuance and any reserves.
b. "Conditional Grant" means the grant of approximately
$2,000,000 made to the Developer by the Authority in accordance
with section 3.
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C. "Completion of Construction" means the complete and
entire construction of all of the Improvements as certified by the
Authority in accordance with the DDA.
d. "Convention Center Facility" means an approximately
42,000 square foot convention center structure and related
improvements, including an 8,000 square foot event plaza, to be
constructed by the Developer in accordance with the DDA.
e. "Convention Center Management Agreement" means the
agreement by and among the Authority, the City and the Developer
dated 199_, as such agreement may be amended from
time to time.
f. "Convention Center Parcel" means that portion of the
Property described in Exhibit A -2.
g. "Hotel Facility" means a first class hotel containing 1:83
178 or more rooms (including 33 suites) with food and beverage
facilities and related improvements to be constructed and operated
by the Developer in accordance with the DDA.
h. "Hotel Management Agreement" means the agreement by and
between and dated
as such agreement may be amended
to the reasonable approval of the City
, 199 ,
assigned or replaced subject
and the Authority.
i. "Hotel Parcel" means that portion of the Property
described in Exhibit A -3.
j. "Improvements" means all of the improvements, including,
without limitation, the Hotel Facility and the Convention Center
Facility and Public Infrastructure that the Developer is required
to construct pursuant to the DDA.
k. "Maturity Date" means the date when the principal of,
premium (if any), and interest on the Bonds are paid in full.
1. "Mortgage" means and includes a deed of trust or other
instrument creating an encumbrance or lien upon the Hotel Parcel
and the Hotel Facility.
M. "Parking Management Agreement" means the agreement by and
among the Developer, the Authority and the City dated
1995. '
n. "Property" means the real property described in Exhibit
A -1.
2. Use and Operation of Hotel Facility The Developer covenants
and agrees as follows:
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C. "Completion of Construction" means the complete and
entire construction of all of the Improvements as certified by the
Authority in accordance with the DDA.
d. "Convention Center Facility" means an approximately
42,000 square foot convention center structure and related
improvements, including an 8,000 square foot event plaza, to be
constructed by the Developer in accordance with the DDA.
e. "Convention Center Management Agreement" means the
agreement by and among the Authority, the City and the Developer
dated 199_, as such agreement may be amended from
time to time.
f. "Convention Center Parcel" means that portion of the
Property described in Exhibit A -2.
g. "Hotel Facility" means a first class hotel containing 178
or more rooms (including 33 suites) with food and beverage
facilities and related improvements to be constructed and operated
by the Developer in accordance with the DDA.
h. "Hotel Management Agreement" means the agreement by and
between and dated
as such agreement may be amended
to the reasonable approval of the City
, 199 ,
assigned or replaced subject
and the Authority.
i. "Hotel Parcel" means that portion of the Property
described in Exhibit A -3.
j. "Improvements" means all of the improvements, including,
without limitation, the Hotel Facility and the Convention Center
Facility and Public Infrastructure that the Developer is required
to construct pursuant to the DDA.
k. "Maturity Date" means the date when the principal of,
premium (if any), and interest on the Bonds are paid in full.
1. "Mortgage" means and includes a deed of trust or other
instrument creating an encumbrance or lien upon the Hotel Parcel
and the Hotel Facility.
M. "Parking Management Agreement" means the agreement by and
among the Developer, the Authority and the City dated ,
1995.
A -1. n. "Property" means the real property described in Exhibit
2. Use and Operation of Hotel Facility The Developer covenants
and agrees as follows:
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a. After Completion of Construction and prior to the
Maturity Date to devote the Property and the Hotel Facility to the
uses specified in the DDA and the Plan;
b. After Completion of Construction and prior to the
Maturity Date to continuously maintain and operate the Hotel
Facility as a first -class hotel in accordance with the Hotel
Management Agreement and to take no action to or to permit any
change in the uses on the Property or in any way impair or
adversely affect the Authority's ability to pay the principal of
and interest on the Bonds;
3. Conditional Grant The Authority agrees to deliver to the
Developer the Conditional Grant described in the DDA as follows:
a. After Completion of Construction and prior to the
Maturity Date, the total liens on the Hotel Facility and the Hotel
Parcel shall not exceed a loan to value ratio of Sixty -Five Percent
(65 %) as confirmed by an MAI appraiser selected jointly by the
Developer and the Authority and provided and paid for by the
Developer at the time the Developer obtains its original permanent
financing and upon any refinancing or sale of the Hotel Facility or
the Hotel Parcel; provided, that the principal balance of any such
debt or obligation may be increased by an amount not to exceed the
actual cost of any future expansion of the Hotel Facility;
provided, further, if the loan -to -value ratio does not exceed 65%
at the time a particular debt or obligation is placed against the
Hotel Facility and Hotel Parcel, the ratio will not be deemed
exceeded solely by reason of a subsequent decrease in value of the
Hotel Facility and Hotel Parcel, unless such decrease is due to an
uninsured casualty.
b. The Developer shall not sell, refinance or otherwise
transfer, voluntarily or involuntarily, all or any part of its
interest in the Hotel Facility or the Hotel Parcel to any entity or
third party within ten (10) years after Completion of Construction.
In addition to any other right, remedy or action available to the
Authority under this Agreement, if the Developer shall violate the
covenant specified in either section 3a or 3b within five ( 5 ) years
of the date of the Closing, the Developer shall immediately return
to the Authority in cash or certified funds, the full amount of the
Conditional Grant and shall also immediately pay to the Authority
an increase in the Purchase Price for the Hotel Parcel in the
amount of $6.50 multiplied by the actual number of square feet in
the Hotel Parcel (to be established in accordance with the Schedule
of Performance) as confirmed by a survey reasonably acceptable to
the Authority, such increase being the amount agreed by the parties
to be the fair market value (the "Fair Market Value ") of the Hotel
Facility. If such default or violation occurs during the sixth to
tenth year after the date of the Closing, the Conditional Grant and
the Purchase Price for the Hotel Parcel, as increased in accordance
with this section 3b, less one fifth of each such payment for each
G -3
full year (prorated to the date of such payment by the Developer
for any period less than one year) after the fifth anniversary of
the Closing, shall be paid immediately by the Developer to the
Authority in cash or certified funds. Any part of the Conditional
Grant and the Fair Market Value that is so returned shall be
retained by the Authority in a special account dedicated entirely
to modifications to or expansion of the Convention Center Facility
or other Project uses as are consistent with maintaining the tax
exempt status of the Bonds. The final structure for effecting such
return and use of the returned Conditional Grant and the Fair
Market Value shall not jeopardize the tax - exempt status of the
Bonds.
4. Restriction on Sale or Transfe After Completion of
Construction and prior to the Maturity Date, the consent of the
Authority shall be required in the event of any sale, transfer or
refinancing of the Hotel Facility and /or the Hotel Parcel or for
any change in the party managing the Hotel Facility pursuant to the
Hotel Management Agreement.
5. Compliance with Other Agreements Until the Maturity Date,
the Developer covenants and agrees that it shall not knowingly
terminate or commit or suffer any default or breach of the Hotel
Management Agreement, the Convention Center Management Agreement,
the Parking Management Agreement or any other agreement, guaranty
or indemnity given or entered into as part or related to the
construction, financing or operation of the Improvements or in
connection with the issuance of and payment of debt service on the
Bonds.
6. Insurance The Developer covenants and agrees as follows:
a. Prior to Completion of Construction At all times while
the Developer is engaged in preliminary work on the Property or
adjacent streets until Completion of Construction, the Developer
shall carry and, upon request, will provide the Authority with
proof of payment of premiums and certificates of insurance as
follows:
i. Builder's risk insurance (with a deductible not to
exceed $25,000.00) in an amount equal to 100% of the replacement
value of the Improvements at the date of Completion of
Construction;
ii. comprehensive general liability insurance (including
operations, contingent liability, operations of subcontractors,
completed operations, and contractual liability insurance) and
umbrella liability insurance with a combined single limit for both
bodily injury and property damage of not less than $3,000,000.00.
Such insurance may carry a deductible in an amount not to exceed
$2,500.00 per claim for property damage and $2,500.00 per claim for
employee benefits;
G -4
iii. worker's compensation insurance, with statutory
coverage, including the amount of deductible permitted by statute.
The policies of insurance required under subparagraphs (i) through
(iii) above shall be reasonably satisfactory to the Authority and
the City, placed with financially sound and reputable insurers,
require the insurer to give at least thirty (30) days advance
written notice to the Authority and the City in the event of
cancellation or change in coverage and shall name the Authority and
the City as additional insureds, specifying that the insurance
shall be treated as primary insurance in each case.
b. After Completion of Construction Until the Maturity
Date of the Bonds, the Developer shall maintain, and upon request
of the Authority or the City, shall furnish proof of the payment of
the premiums for:
i. "All Risk" insurance (including without limitation,
flood and earthquake coverage to the extent available) for not less
than one hundred percent (100 %) of the full replacement value of
the Hotel Facility;
ii. boiler and machinery insurance (including use and
occupancy /loss of income) for all direct loss or damage to property
caused by an accident as defined under a standard Boiler and
Machinery policy including boilers, pressure vessels and mechanical
or electrical equipment, in limits reasonably acceptable to the
Authority and the City;
iii. general liability insurance in the amount and
coverages required by the Hotel Management Agreement and the
Convention Center Management Agreement and otherwise reasonably
acceptable to the Authority and the City;
iv. such other additional insurance of the types and in
the amounts generally carried by similar hotels (including hotels
with facilities similar to the Convention Center Facility) and
reasonably acceptable to the Authority and the City.
All such insurance policies shall be issued by responsible
companies selected by the Developer, subject to the reasonable
approval of the Authority and the City. The Developer shall
deliver to the Authority and the City policies or certificates
evidencing or stating that such insurance is in force and effect.
Each policy shall contain a provision that the insurer shall not
cancel or modify it without giving written notice to the Developer
and to the Authority and the City at least thirty (30) days before
the date the cancellation or modification becomes effective and
shall name the Authority and the City as additional insureds,
specifying that the insurance shall be treated as primary
insurance.
G -5
7. Repair or Reconstruction of Improvements The Developer shall
immediately notify the Authority and the City of any damage to the
Improvements exceeding $50,000.00. If the Improvements are damaged
or destroyed by fire or other casualty prior to the Maturity Date,
the Developer shall proceed forthwith to repair, reconstruct and
restore the damaged Improvements to substantially the same
condition or value as existed prior to the damage or destruction,
and the Developer shall apply the proceeds of any insurance
relating to such damage or destruction to the payment or
reimbursement of the costs of such repair, reconstruction and
restoration.
8. Nondiscrimination The Developer shall not discriminate on
the basis of race, creed, color, sex, religion, sex, marital
status, ancestry or national origin in the sale, lease, rental, use
or occupancy of the Property or of the Improvements.
9. Use Until the Maturity Date, the Property and the
Improvements thereon shall conform with the uses specified in these
Covenants and the Urban Renewal Plan.
10. Default If the Developer fails to substantially observe or
perform any of the foregoing covenants or agreements, the Authority
shall give written notice of such default to the Developer.
Developer shall proceed immediately to cure or remedy such default
and, in any event, such Default shall be cured within thirty (30)
days after receipt of such notice or such cure shall be commenced
within such thirty (30) day period and diligently pursued to
completion within a reasonable time If curing cannot be reasonably
accomplished within thirty (30) days. If any such Default is not
cured as provided above, the Authority may take whatever legal or
administrative action or institute such proceedings as may be
necessary or desirable in its opinion to enforce observance or
performance of these covenants, including, without limitation,
specific performance or to seek any other right or remedy at law or
in equity including damages.
11. Other Rights and Remedies The Authority shall have the right
to institute such actions or proceedings as it may deem desirable
for effectuating the purposes of these Covenants.
12. Notices A notice, demand, or other communication by. any
party to the other shall be in writing and sufficiently given if
delivered in person or if it is delivered by overnight courier
service with guaranteed next -day delivery or by certified mail,
return receipt requested, postage prepaid, and
a. in the case of the Developer, is addressed to or
delivered to the Developer as follows:
Intra Financial Corporation
14 South 5th Avenue, Suite 300
G -6
St. Cloud Minnesota 56301
with a copy to:
N. Walter Graff, Esq.
Best & Flanagan
4000 First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402
b. in the case of the Authority, is addressed to or
delivered to the Authority as follows:
1 City Hall Place
Pueblo, Colorado 81003
with copies to:
Thomas E. Jagger, Esq.
127 Thatcher Building
Pueblo, Colorado 81003
and
Joseph A. Fortino, Esq.
Pueblo Urban Renewal Authority
c/o City Managers Office
1 City Hall Place
Pueblo, Colorado 81003
or at such other address with respect to any such party as that
party may, from time to time, designate in writing and forward to
the other as provided in this section.
13. Provisions Not Merged with Deed None of the provisions of
the Covenants are intended to or shall be merged by reason of any
deed transferring possession or title to the Hotel Parcel from the
Authority to the Developer or any successor in interest, and such
deed shall not be deemed to affect or impair the provisions and
covenants of these Covenants.
14. Title of Sections Any titles of the several parts and
sections of the Covenants are inserted for convenience of reference
only and shall be disregarded in construing or interpreting any of
its provisions.
15. No Third -Party Beneficiaries Except for specific rights in
favor of Mortgagees or of a trustee for the Bonds, no third -party
beneficiary rights are created in favor of any person not a party
to these Covenants.
G -7
16. Venue and Applicable Law Any action arising out of these
Covenants shall be brought in the Pueblo County District Court and
the laws of the State of Colorado shall govern the interpretation
and enforcement of the Covenants.
17. Authority or City Not a Partner Notwithstanding any language
in the Covenants or any other agreement, representation or warranty
to the contrary, neither the Authority nor the City shall be deemed
or constituted a partner or joint venturer of the Developer or any
operator or manger of the Hotel Facility or of the Convention
Center Facility, and neither the Authority nor the City shall be
responsible for any debt or liability of the Developer or such
operator or manager.
18. Exhibits Merged All Exhibits annexed to the Covenants shall
be deemed to be expressly integrated herein.
IN WITNESS WHEREOF, the Authority and the Developer have
caused the Covenants to be duly executed as of the day first above
written.
AUTHORITY:
THE URBAN RENEWAL AUTHORITY OF PUEBLO,
COLORADO
ATTEST:
By:
Secretary
DEVELOPER
INTRA FINANCIAL CORPORATION
ATTEST:
By:
Secretary
G -8
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before me this day
of 19 , by as
COLORADO. for THE URBAN RENEWAL AUTHORITY OF PUEBLO,
My commission expires:
WITNESS my hand and official seal.
Notary Public
STATE OF )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day
of , 19 , by as
corporation. for of INTRA FINANCIAL CORPORATION, a Minnesota
My commission expires:
WITNESS my hand and official seal.
Notary Public
G -9
r
EXHIBIT H
DEVELOPER INFORMATION
1. Name, address, telephone and fax number of Developer:
Intra Financial Corporation
14 South 5th Avenue, Suite 300
St. Cloud, Minnesota 56301
Phone: (612) 252 -6034
Fax: (612) 252 -3029
2. IRS Number of Developer: 41- 1350539
3. The Developer is a Minnesota corporation in good standing and
authorized to do business in Minnesota and is qualified as a
foreign corporation and authorized to do business in Colorado.
a. Date of organization of Developer:
Peril 11, 19.79
b. Date Developer qualified in Colorado:
Application pending.
4. Names, addresses, phone numbers, title, and nature and extent
of interest of the officers, directors and each stockholder of
the Developer (please attach additional pages if more space is
required):
James J. Graves
Suite 300
14 South Fifth Avenue
St. Cloud, MN 56301
(612) 252 -6034
President. Treasurer. Se.reta ;-1`_rector
and Sole Stockhclo.Fr
T Wendel
Suite 300.
14 South Fifth Avenue
St. Cloud, DV 56301
(612)_ 252 6034
Julie Graves
Suite 300
14 South Fifth Street
St. Cloud, 14N 56301
(612) 252 -6034
Vice President
Director
H -1
5. Name, address and telephone number of principal members of
Developer's consultants and advisors (attorneys, architects,
contractors, accountants, etc.):
Allen C. Wells Best & Flanacran
Suite 900 Professional Limited Liability
800 LaSalle Avenue Partnership
Pli.nneapolis, M 55402 =(N: 67alter Graff, Partner)
(612) 871 -0445 4000 First Ban]; Place
601 Second Avenue South
BRE Elness Architects, Inc. Minneapolis, M 55402
(lark Swenson, President) (612) 33-
Thresher Square
700 Third Street South
17inneapolis, IV 55415
(612) 339 -5508
6. I, James J. Graves certify that the information
contained in the foregoing document is true and correct to the
best of my knowledge and belief.
111 .LGI
H -2