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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 0 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 7 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. r7 '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. 10 '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. 11 (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. 12 '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. 15 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. 16 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 17 '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 18 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 19 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: 20 (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 21 '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. 22 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. 23 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 25 (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. 29 1111 h ! 1 1 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. G -1 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: G -2 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: G -2 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