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HomeMy WebLinkAboutURA Resolution 2003-06 WHEAT RIDGE URBAN RENEWAL AUTHORITY RESOLUTION NO. ~-2003 Series of 2003 A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE WHEAT RIDGE URBAN RENEWAL AUTHORITY APPROVING AMENDMENTS TO THE DISPOSITION AND DEVELOPMENT AGREEMENT BE IT RESOLVED by the Wheat Ridge Urban Renewal Authority that: The four amendments to the Disposition and Development Agreement with Cornerstone for the Walgreen's Redevelopment Project, three of which include extensions of time requirements for certain activities and the fourth pertaining to extension of the Public Improvements Fee for remediation of contamination, are hereby approved, and/or prior approvals are hereby ratified, in essentially the same form as the documents accompanying this Resolution. % DONE AND RESOLVED the r;C; day of November 2003. Ijc.""1 R M.tJ~ Chair ATTEST: .~~~ Secretary FOURTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT November 25,2003 The parties to the Disposition and Development Agreement, effective May 1,2003, as amended (DDA), hereby agree to the following amendment of the DDA: WHEREAS, the parties have entered into an Agreement For Imposition ("PIP Agreement") and Utilization Of Public Improvements Fee (PIP) effective November 25, 2003, which PIP Agreement is incorporated herein and made part hereof; and WHEREAS, the PIP is a 1 % fee on all commercial, retail sales at the Walgreen's store only at the 38th A venue and Sheridan Boulevard location within the City of Wheat Ridge, Colorado (City); and WHEREAS, the PIP is imposed and utilized to pay some of the Authority's financial obligations related to costs for public improvements associated with the redevelopment of the site for the Walgreen's store; and WHEREAS, such public improvements include, by illustration, extraordinary costs to remediate contamination of the soils and/or improvements at the site, upon which the Walgreen's store will be located; and WHEREAS, in accordance with the DDA, the Authority has agreed to share equally with the Developer such remediation costs to a maximum sum of $50,000.00; and WHEREAS, because the parties have been unable to access and inspect the entire site, it is possible that said remediation costs may exceed the total anticipated costs of $100,000.00; and WHEREAS, the parties are desirous of providing for the revenues to help pay the Authority's share of the potential extraordinary costs of public improvements, including said remediation; and WHEREAS, the Authority and the City have entered into an Intergovernmental Agreement dated October 28, 2003 to, among other matters, collect and pay to the Authority the PIP to pay the Authority's financial obligations for public improvements related to the Walgreen's project; and WHEREAS, the Authority and Developer are desirous of amending the DDA to provide that the costs of remediation of contamination in excess of $100,000.00 shall be an obligation of the Authority; however, payable solely and exclusively from the PIP and no other source of money, revenue, property or assets of the Authority or the City whatsoever; and 1297636v2 WHEREAS, to effect this modification, the parties amend the DDA in the following respects: 1. All capitalized terms, not otherwise defined herein, shall have the same meanings provided in the DDA or applicable agreement. 2. The costs of remediation of contamination at the Walgreen's Redevelopment project in excess of $100,000.00 shall be the financial obligation of the Authority; subject however, to payment therefore solely and exclusively from the 1 % PIP imposed upon all corru;nercial retail sales at the Walgreen's store only. No other monies, revenues, properties or assets of the Authority or the City whatsoever shall be pledged or utilized for this financial obligation. 3. The revenues from such PIP shall be used for such remediation costs only after all financial obligations of the Authority under the Loan Agreement and Note between the Authority and the Developer, dated November 25,2003, which instruments are incorporated herein and made part hereof. 4. The Developer shall provide the Authority with a detailed accounting, including receipts and supporting data, of the costs of such remediation upon completion thereof by the Developer. 5. Consistent with the said PIP Agreement, Loan Agreement and Note, the PIP revenues shall be used to pay the Authority's financial debt for costs related to the Walgreen's Redevelopment project. 6. Upon full payment and satisfaction of the financial obligations described in the Loan Agreement, Note and this Amendment to the DDA, and as subject to determination by the Authority, and verified in writing by the Developer of full payment for all such financial obligations, the PIP Agreement shall terminate. 7. The collection, utilization and payment of PIP revenues for the purposes described herein are specifically subject to written approval by Walgreen's to the sole satisfaction of the Authority. . 8. Until all remediation costs have been reimbursed to Developer in accordance with this Fourth Amendment, the DDA shall remain in full force and effect. All other provisions of the DDA, as amended, and except as amended hereby, shall be in full force and effect. 2 +3032209134 WIIIu Ifdae UrItim ......,... ..~ B~~;~;J..4.- ! ATI'EST: cZ..; ~~~ SecrBtaIy ~ STATEOFCOLORADo I) : )as. CO'Ulll"'1Y OF ~~ON I J wrtNBS5 my hlllll1 mi'officla1l1Ol11. My ~ssion 1lI~: o/.'h f /,;1 ~ , 673 P02 DEe 03 '03 10:11 The Ct.._.m..... DIIt L.L.c. Gtaap lac. By. N IIfJ ....- 3 i i i STATBOFTtY~ffiISdJ0l1ifh) I I i ! I I I . ) 55 i I I COUNTYOFOO~?~altY) I I i I h I 1, a~ot.ary Public, ~ hereby certify l:haI4~/,10'_ it/I{ ~Nh pm ally knorn to me to be the "''';Iiel,,>>''; : of TIlE CO~T~~ GR,OUP II INC., llIl lllinois cetpora.tion, the sole M~ooer of lBE CORNERSTONE GROUI1 XXII, 4.L..c., II Dela.watelimilcd liability cWnp8lly, and petSOnal1~ known to llle (0 be the peraoo wh(>lj~ name is subscribed in the fareg~ing instruInent, ~~ befon! me this l!lay in ~ and acknowledged that tte signed and deliveted the said insll:Um.elJt as J'/lr",r/Mf , of The . i I Cornerstone Group 1, Tnc.,: the sole Manager Of The Come.l5l1l!le GriJup XXII, L.L.C., puxsuant to authority, as bis lIce and voluntllt'y act! and as the free and voljmtlly aet r' d deed of said corporation and Iimi~ liability company, t the pllIposes therein forth. Given under my hand mld notarial seal the ~ day 0 . 2003'1 ' i I ~I 4 THIRD AMENDMENT TO nDA EFFECTIVE OCTOBER 15, 2003 The parties to the Disposition and Development Agreement ("DDA"), Effective May 1,2003, hereby agree to the amendment of Exhibit B (Schedule of Performance) of the DDA extending the time requirement for the Authority's Financing and the Closing as provided in the revised Exhibit B document attached hereto. Wheat Ridge Urban Renewal Authority The Cornerstone Group, xxn, L.L.c. By: '7:'~ ~ fLA.. Chai By: The Cornerstone Group I, Inc. Manager By: ATTEST: aMU~~ Secretary STATE OF COLORADO ) )ss. COUNTY OF JEFFERSON ) The foregoing instrument was acknowledged before me the ..5 'fA.. day of AltJYi€11'1 b.f!4' , 2003, by ;t1 C1rf i3. ';';;'1zR-Jr1 as Chair, and I/-n-h U;:':l.. <'-r , . as Secretary of the WHEAT RIDGE URBAN RENEWAL AUTHORITY. WITNESS my hand and official seal. My commission expires: l' /; re It;) ((:> MyCommisSlOll Expires 04/16/2006 EXHIBIT B Schedule ofPerlormauce EVENT 1, Execution Of Agreement And Deposit Of Earnest Money (Effective Date) 2, Conclusion Of Due Diligence CONDITIONS PRECEDENT TO CLOSING: 1. Securing Of Developer's Project Financing 2. Securing Of Authority's Financing 3, Preliminary Description and Boundary Survey to Developer 4. Inspection Of Property Regarding Contamination 5, Determination Regarding Contamination Remediation, If Necessary 6. Developer's Securing of Vehicular Access To Property Including Traffic Study to CDOT 7. Completion Of Due Diligence By Developer 8, Title Commitment And Survey To Developer By Authority 9, AcceptancelRejection Of Titlel Survey By Developer TIME May 1,2003 July 31, 2003 July 31, 2003 November 14, 2003 August 15, 2003 July 18, 2003 August 15,2003 September 19,2003 July 31, 2003 Upon Acquisition of Property by Authority Fourteen (14) After Receipt of Title Commitment/Survey from Authority 10. Satisfaction ofTitle/Survey By Authority Fourteen (14) Days After Notice of Defect from Developer 11. City Approvals Of Land Use Matters/Permits Granted Five (5) Days before Closing 12. Binding Written Commitment From Walgreen's May 27,2003 13. Completion Of Acquisition Of Property I Relocation Of TenantslBusinesses By Authority Twenty (20) Days before Closing 14. CLOSING May 5, 2004 15. Commencement Of Construction Of Improvements By Developer Ninety (90) Days after Closing 16. Completion Of Construction (Subject To Force Majeur) Eight (8) months after City Approves building plans and issues building permit 17. Certificate Of Occupancy For Walgreen's Two (2) months after completion of Construction 18. Commencement Of Business Operations by Walgreen's Sixty (60) Days after Certificate of Occupancy 19, Issuance Of Certificate Of Completion By Authority Five (5) Days after Commencement of business by Walgreen's ALL TIME REQUIREMENTS ARE SUBJECT TO REASONABLE EXTENSIONS BY WRITTEN AGREEMENT(S) BETWEEN THE PARTIES. I SECOND EXTENSION AGREEMENT TO DDA EFFECTIVE SEPTEMBER 1, 2003 The parties to the Disposition and Development Agreement ("DDA"), Effective May 1, 2003, hereby agree to the amendment of Exhibit B (Schedule of Performance) of the DDA extending the time requirement for the Authority's Financing as provided in the revised Exhibit B document attached hereto. Wheat Ridge Urban Renewal Authority The Cornerstone Group, XXII, L.L.C. By: I-/~.B. ~--- Chair By: The Cornerstone Group I, Inc. Manager By: ATTEST: ~~~/ Secretary STATE OF COLORADO ) )ss. COUNTY OF JEFFERSON ) The foregoing instrument was acknowledged before me the 6\6/k. day of ~pf~ , 2003, by MCc<~ 'b. \tZl.:'o'rluv<.. as Chair, and .4n 11 L a Lz.. €-r " as Secretary of the WHEAT RIDGE URBAN RENEWAL AUTHORITY. My commission expires: ,///(f/O(P , ~ (/), J> . ~ . .-\:7., Vaue ,'8 W~O.~J'l/0"6i co\.~,,?' Notary Public My commisSioIl Ex_ 04/16/2006 WITNESS my hand and official seal. EXHIBIT B Schedule of Performance EVENT 1. Execution Of Agreement And Deposit Of Earnest Money (Effective Date) 2. Conclusion Of Due Diligence CONDITIONS PRECEDENT TO CLOSING: 1. Securing Of Developer's Project Financing 2, Securing Of Authority's Financing 3. Preliminary Description and Boundary Survey to Developer 4. Inspection Of Property Regarding Contamination 5. Determination Regarding Contamination Remediation, If Necessary 6. Developer's Securing of Vehicular Access To Property Including Traffic Study to CDOT 7, Completion Of Due Diligence By Developer 8, Title Commitment And Survey To Developer By Authority 9, Acceptance/Rejection Of Title/ Survey By Developer 10. Satisfaction of Title/Survey By TIME May 1, 2003 July 31,2003 July 31,2003 October 15, 2003 August 15, 2003 July 18, 2003 August 15,2003 September 19, 2003 July 31, 2003 Upon Acquisition of Property by Authority Fourteen (14) After Receipt of Title Commitment/Survey from Authority Fourteen (14) Days Authority After Notice of Defect from Developer 11. City Approvals Of Land Use Matters/Permits Granted Five (5) Days before Closing 12. Binding Written Commitment From Walgreen's May 27, 2003 13. Completion Of Acquisition Of Propertyl Relocation Of Tenants/Businesses By Authority Twenty (20) Days before Closing 14. CLOSING October 28, 2003 15. Commencement Of Construction Of Improvements By Developer Ninety (90) Days after Closing 16. Completion Of Construction (Subject To Force Majeur) Eight (8) months after City Approves building plans and issues building permit 17. Certificate Of Occupancy For Walgreen's Two (2) months after completion of Construction 18. Commencement Of Business Operations by Walgreen's Sixty (60) Days after Certificate of Occupancy 19. Issuance Of Certificate Of Completion By Authority Five (5) Days after Commencement of business by Walgreen's ALL TIME REQUIREMENTS ARE SUBJECT TO REASONABLE EXTENSIONS BY WRITTEN AGREEMENT(S) BETWEEN THE PARTIES, EXTENSION AGREEMENT TO DDA EFFECTIVE AUGUST 1, 2003 The parties to the Disposition and Development Agreement ("DDA"), Effective May 1,2003, hereby agree to the amendment of Exhibit B (Schedule of Performance) of the DDA extending certain time requirements as provided in the revised Exhibit B document attached hereto, Wheat Ridge Urban Renewal Authority The Cornerstone Group, xxn, L.L.C. By: 1-(0.:1 B ~ Chair By: The Cornerstone Group I, Inc. lli-r~ By: 7. ~ ( ATTEST: ~~ ' Secretary ~ STATE OF COLORADO ) !'o )ss, COUNTY OFc::Y~tYY7 ) gThe foregoing instrument~~ acknowledged before me the rh f#-day of ~ 2003, by -:I-Li ~ ~,~ as Chair, and :(S r' .J as Secretai)Uofthe WHEAT RIDGE URBAN RENEWAL AUTHORITY. WITNESS my hand and official seal. (~dJ/ ;J /0 STATE OF ILLINOIS) ;#iJtOp iJt2I ) ss COUNTY OF Get7K ) I, a Notary Public, do hereby certifY that7;i?J;V'~6.. Qtlll,IJ1f1 , personally known to me to be the~PPf;d.Jnf/)/O(M;..J( of THE CORNERS ONE GROUP I, INe., an lllinois corporation, the sole M'anager of THE CORNERSTONE GROUP XXII, L.L.c., a Delaware limited liability company, and personally known to me to be the person whose name is subscribed in the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as M/?t?,'.// of The Cornerstone Group I, Inc" the sole Manager of The Cornerstone GrouJ!' XXII, L.L.C" pursuant to authority, as his free and voluntary act, and as the free and voluntary act and deed of said corporation and limited liability company, for the purposes therein set forth, Given under my hand and notarial seal the ~/^- day of dVMrl ,2003. If' d- Y;//'.I~-c !~? Notary Public ~ b/f1Io//JJ,M 6;;1'./.1,' J?h7/0p 2 EXHmIT B Schedule of Performance EVENT 1. Execution Of Agreement And Deposit Of Earnest Money (Effective Date) 2, Conclusion Of Due Diligence CONDITIONS PRECEDENT TO CLOSING: 1. Securing Of Developer' s Project Financing 2, Securing Of Authority's Financing 3. Preliminary Description and Boundary Survey to Developer 4, Inspection Of Property Regarding Contamination 5, Determination Regarding Contamination Remediation, If Necessary 6, Developer's Securing of Vehicular Access To Property Including Traffic Study to CDOT 7, Completion Of Due Diligence By Developer 8, Title Commitment And Survey To Developer By Authority 9, Acceptance!Rejection Of Title I Survey By Developer 10. Satisfaction ofTitlelSurvey By TIME May 1, 2003 July 31, 2003 July 31, 2003 August 15, 2003 August 15,2003 July 18, 2003 August 15, 2003 September 19, 2003 July 31, 2003 Upon Acquisition of Property by Authority Fourteen (14) After Receipt of Title Commitment/Survey from Authority Fourteen (14) Days Authority After Notice of Defect from Developer 11. City Approvals Of Land Use MatterslPerrnits Granted Five (5) Days before Closing 12, Binding Written Commitment From Walgreen's May 27, 2003 13, Completion Of Acquisition Of Property I Relocation Of Ten ants /Businesses By Authority Twenty (20) Days before Closing 14, CLOSING October 28, 2003 15, Commencement Of Construction Of Improvements By Developer Ninety (90) Days after Closing 16, Completion Of Construction (Subject To Force Majeur) Eight (8) months after City Approves building plans and issues building permit 17, Certificate Of Occupancy For Walgreen's Two (2) months after completion of Construction 18, Commencement Of Business Operations by Walgreen's Sixty (60) Days after Certificate of Occupancy 19, Issuance Of Certificate Of Completion By Authority Five (5) Days after Commencement of business by Walgreen's ALL TIME REQUIREMENTS ARE SUBJECT TO REASONABLE EXTENSIONS BY WRITTEN AGREEMENT(S) BETWEEN THE PARTIES, DISPOSITION AND DEVELOPMENT AGREEMENT WHEAT RIDGE URBAN RENEWAL AUTHORITY AND THE CORNERSTONE GROUP XXII, L.L.C., a Delaware limited liability company Effective May 1, 2003 Table of Contents SECTION 1. DEFINITIONS AND PURPOSE ....................................................2 SECTION 2. DESCRIPTION OF PROJECT ......................................................8 SECTION 3. PURCHASE OF THE PROPERTYIDEPOSIT ............................8 SECTION 4. ACCESS TO THE PROPERTY..................................................... 9 SECTION 5. CONDITIONS PRECEDENT TO CLOSING ............................10 SECTION 6. FINANCING/HOLDERffAXES ..................................................13 SECTION 7. DEEDfI'ITLE MA TTERS.............................................................14 SECTION 8. OBLIGATIONS OF DEVELOPER AFTER CLOSING ...........16 SECTION 9. PROPERTY RELATED MATTERS ...........................................16 SECTION 10. CERTIFICATE OF COMPLETION/OPERATION OF BUSINESS.......................................................................................17 SECTION 11. REPRESENTATIONS AND WARRANTIES ............................17 SECTION 12. GENERAL COVENANTS ............................................................19 SECTION 13. SAFETYIINDEMNIFICA TIONIINSURANCE ..........................19 SECTION 14. DEFAULTIEVENT OF DEFAULT .............................................22 SECTION 15. EVENTS OF DEFAULT/NOTICES OF DEFAULT; OPPORTUNITY TO CURE DEFAULT/REMEDIES...............23 SECTION 16. TERMINATIONIEXPIRATION OF AGREEMENT ................24 SECTION 17. AUTHORITY'S OPTION TO REPURCHASE..........................25 SECTION 18. RESTRICTIONS ON ASSIGNMENT AND TRANSFER.........26 SECTION 19. GENERAL PROVISIONS ............................................................28 1 Table of Exhibits Exhibit A..... .Description of Property Exhibit AI... .Proposed Site Plan Submitted By Developer In Response To Request For Proposals Exhibit B,. . . . . Schedule Of Performance Exhibit C..... . Site Plan Approved By City 11 DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT (the "Agreement") is made and entered into effective May 1, 2003, (the "Effective Date") by and between the WHEAT RIDGE URBAN RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado (the "Authority") and THE CORNERSTONE GROUP XXII, L.L.C., a Delaware limited liability company (the "Developer"). WHEREAS, the Authority is a body corporate and politic and has been duly created, organized, established and authorized to transact business and exercise its powers as an urban renewal authority within the City of Wheat Ridge, Jefferson County, Colorado (the "City"), under and pursuant to the Colorado Urban Renewal Law, Sections 31-25-101 et seq., C.R.S. (the "Urban Renewal Law"); and WHEREAS, the City Council of the City has determined that blighted conditions exist within certain areas of the 38th A venue Corridor of the City, and that the redevelopment or development of some of the area for a municipal sales tax generating retail businesses is necessary and in the best interest of the public health, safety and welfare of the residents of the City; and WHEREAS, an urban renewal plan, known as the "38th Avenue Corridor Redevelopment Plan" (the "Redevelopment Plan"), has been approved by the City Council of the City by Resolution 25-2001 for urban renewal projects under the Urban Renewal Law; and WHEREAS, the Redevelopment Plan may hereafter be modified by the City Council of the City as provided by the Urban Renewal Law; and WHEREAS, the City Council of the City has determined that development and/or redevelopment of the area generally located at the southwest corner of 38th Avenue and Sheridan Boulevard (the "Redevelopment Project") as a municipal sales tax generating retail development is consistent with the Redevelopment Plan, will eliminate blight, prevent the spread of blight and generate public benefits for the City; and WHEREAS, in response to requests for proposals, the Authority has selected the proposal of-the Developer for development of a portion of the 38th Avenue Corridor (illustrated and described on Exhibit A hereto) as one of the proposals which serves the goals and objectives of the City and complies with the Redevelopment Plan and the Urban Renewal Law; and WHEREAS, Developer has the experience, legal ability, expertise and financial resources to construct and operate or cause the construction and operation of the improvements constituting a portion of the Redevelopment Project; and 1 WHEREAS, Developer has agreed to construct, or effect the construction of certain Improvements, in furtherance of the Redevelopment Plan (as illustrated on Exhibit Al hereto); and WHEREAS, the Improvements to be constructed or effected by the Developer will eliminate and prevent the spread of blight, comply with the Redevelopment Plan and serve the economic, social and financial interests and needs of the City and community; and WHEREAS, such Improvements and the business that is to be an integral part of the Property will enhance the sales tax base and property tax base of the City; and WHEREAS, in order to provide funds to meet obligations with respect to public purposes, activities and operations of the Authority in accordance with the Redevelopment Plan and the Urban Renewal Law, the City has the authority to utilize property and sales tax incremental financing/funding within the Redevelopment Area; and WHEREAS, in accordance with the Redevelopment Plan, the Authority has the power of eminent domain and the authority to relocate certain business tenants and residents displaced by the Redevelopment Project; and WHEREAS, with such legal processes the Authority has the power to acquire properties, relocate eligible residents and business tenants, assemble the redevelopment site and convey unencumbered title to the site to the Developer for fair value; and WHEREAS, Developer desires to acquire unencumbered title to the real property (hereafter the "Property") within the site and construct improvements thereon constituting a Walgreen's retail sales and drugstore; and WHEREAS, the Authority is willing to sell and convey title to the assembled site (Property) to the Developer upon the terms and provisions in this Agreement. SECTION 1. DEFINITIONS AND PURPOSE 1.1 DEFINITIONS "Act" or "Urban Renewal Law" means the Colorado Urban Renewal Law, article 25 of title 31, C.R.S., as amended. "Certificate of Completion" means the certificate described in Section 10, "Certificate of Occupancy" means a document issued by the Cornmunity Development Department of the City allowing the occupancy or use of a building or improvement and certifying that the structure or use has been constructed and will be used in compliance with all applicable codes and ordinances. 2 "City" means the City of Wheat Ridge, Colorado, "City Council" means the City Council of the City of Wheat Ridge, Colorado. "Closing" means the date of satisfaction of all of the conditions precedent in Section 5 and the purchase of the Property by the Developer from the Authority. "Commencement of Construction" means the visible commencement by the Developer of actual physical operations on the Property for the erection of the Improvements, including without limitation, obtaining a foundation permit for the Improvements and excavation of the Property for footings, foundations or caissons, "Completion of Construction" means the issuance by the City of a Certificate of Occupancy for all of the Improvements that the Developer is required to construct or effect such construction. "Consolidation Plat" means a plat, which aggregates two or more parcels or portions of land into a single lot, development or building site, "Deed" means the special warranty deed. "Default" and "Event of Default" means those events specified in Section 14. "Developer" means The Cornerstone Group XXII, L.L.c., a Delaware limited liability company, its nominee, and its successors and assigns that conform to the requirements of Section 18. "Eminent Domain" means the legal process for the acquisition of any/all interests in the Property, or portions thereof, or other properties within the Redevelopment Area, by the Authority. "Environmental Laws" mean any international, federal, state or local statute, law, regulation, order, consent, decree, judgment, permit, license, code, covenant, deed restriction, common law, treaty, convention, ordinance or other requirement relating to public health, safety or the environment, including, without limitation, those relating to releases, discharges or emissions to air, water, land or groundwater, to the withdrawal or use of groundwater, to the use and handling of polychlorinated biphenyls or asbestos, to the disposal, treatment, storage or management of hazardous or solid waste, materials, to the handling, transportation, discharge or release of gaseous or liquid Hazardous Substances and any regulation, order, notice or demand issued pursuant to such law, statute or ordinance, if any, applicable to the Property, including without limitation the following: the Comprehensive Environmental Response, Compensation and Liability Act, the Superfund Recovery Act, the Hazardous and Solid Waste Act, the Hazardous Substances TranspOltation Act, the Federal Water Pollution Control Act, the Clean Water Act, the Safe Drinking Water Act, the Clean Air Act, the Toxic Substances Control Act, 3 the Occupational Safety and Health Act, the Emergency Planning and Community Right- to-Know Act, the Federal Insecticide, Fungicide and Rodentcide Act, the Rivers and Harbors Appropriation Act, the Endangered Species Act, the National Environmental Policy Act, the Oil Pollution Act, and any state or local law, and any state statute or local ordinance implementing the same, and any further amendments thereto and all rules and regulations promulgated thereunder. "Environmental Liabilities" has the meaning set forth in Section 13.5. "Hazardous Substance" means any hazardous or toxic material, substance or waste, pollutant or contaminant which is defined, prohibited, limited or regulated under any statute, law, ordinance, rule or regulation of any local, state, regional or Federal Authority having jurisdiction over the Property, or its use, including but not limited to any material, substance or waste that is (a) defined, listed or otherwise classified as a hazardous substance, hazardous material, hazardous waste or other words of similar meaning under any Environmental Laws; (b) petroleum, petroleum hydrocarbons, and all petroleum products; (c) polychlorinated biphenols; (d) lead; (e) urea formaldehyde; (1) asbestos and asbestos containing materials; (g) flammables and explosives; (h) infectious materials; (i) atmospheric radon at levels over 4 picocuries per cubic liter, (j) radioactive materials; or (k) defined, prohibited, limited. or regulated as a hazardous substance or hazardous waste under any rules or regulations promulgated under any Environmental Laws. "Holder" means the owner of a Mortgage. "Improvements" or "Site Improvements" or "Walgreen's Improvements" mean the improvements (such as by illustration only, a Walgreen's drive through retail sales establishment and drugstore and other related site improvements) to be constructed by or at the direction of the Developer on the Property as specified in the Site Plan as a business for the retail sales of goods, commodities and drugs and a municipal sales tax producing project. "Incremental Property Taxes" means, for each Fiscal Year subsequent to the creation of the Property Tax Increment Area (including the Property), all Property Tax Revenues in excess of the Property Tax Base Amount. "Incremental Sales Taxes" mean, for each Fiscal Year subsequent to the creation of the Sales Tax Increment Area (including the Property), all Sales Tax Revenues in excess of the Sales Tax Base Amount. "Mortgage" means any mortgage or deed of trust conveying an interest in the Property for the purpose of securing a debt or other obligation. "Notice Address" or "Notices" means the address for notice set forth below, as amended from time to time: 4 City: Authority: With a copy to: Developer: With a copy to: The City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, Colorado 80215 Telephone: 303-234-5900 Fax: 303-235-2857 Attention: City Manager The Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, Colorado 80215 Telephone: 303-234-5900 Fax: 303-235-2857 Attention: Executive Director James A. Windholz Windholz & Associates 1650 38th Street, Suite 103W Boulder, Colorado 80301 Telephone: 303-443-3100 Fax: 303-443-7835 jwindholz@windholzlaw.com The Cornerstone Group XXII, L.L.c. c/o The Cornerstone Group I, Inc., Jeffrey W. Bailey 6500 S. Quebec Street, Suite 300 Englewood, CO 80111 Telephone: 303-740-8500 Fax: 303-220-9134 dadbailey@aol.com Tim Sullivan 225 West Wacker, #2800 Chicago, IL 60606 Telephone: 312-201-2545 Fax: 312-201-2549 TCGIITS@aol.com Alan B. Roth, Esq, Wildman, Harrold, Allen & Dixon 225 West Wacker, #2800 Chicago, IL 60606 Telephone: 312-201-2633 Fax: 312-201-2555 roth@wildmanharrold.com 5 "Party" or "Parties" means a Party or the Parties to this Agreement. "Permitted Exceptions" mean those exceptions to the title to the Property that are permitted pursuant to Section 7.3. "Pollutant(s)" means any substance that is now or may become regulated or governed by any Environmental Laws, or the presence of which requires investigation under any Environmental Laws, or any flammable, explosive, corrosive, reactive, carcinogenic, radioactive material, hazardous waste, toxic substance defined or designated as a hazardous or toxic substance, material or waste by any Environmental Laws and shall include, without limitation: (i) any substance included within the definitions of "hazardous substance" as the term is defined in CERCLA; and "hazardous waste" as that term is defined in RCRA; and any "hazardous material" as the term is defined in the Hazardous Materials Transportation Act (49 U,S.C. ~~ 1801 et seq) as amended (including as those terms are further defined, construed, or otherwise used in rules, regulations or standards issued pursuant to the Environmental Laws); and (ii) any substance listed in the United States Department of Transportation Table (49 c.R.R. 172.101 and amendments thereto) or by the Environmental Protection Authority (or any successor) as a hazardous substance (40 C,F.R. Part 302 and amendments thereto); and (iii) any material, waste or substance which is or contains any petroleum product or by-product, flammable or explosive material, radioactive material, asbestos, PCBs, dioxins, heavy metals, mine tailings, waste or slag, radon gas or any material designated as a "hazardous substance" pursuant to Section 311 of the CWA (33 U.S,C, ~ 1317). "Property" means the real property to be redeveloped as provided herein, located in the vicinity of the southwest corner area of 38th A venue and Sheridan Boulevard or any portion thereof, (Exhibit A). "Redevelopment Area" or "Project Area" means the land area described III Exhibit A. "Redevelopment Plan" means the urban renewal plan approved by the City for the area, which is the subject of this Agreement, as amended. The Redevelopment Plan is entitled "The 38th Avenue Corridor Redevelopment Plan". "Redevelopment Project" or "Project" means the undertakings and activities of the Developer with regard to the construction and use of Improvements pursuant to this Agreement in the Redevelopment Area for the development of the Property as a municipal sales tax generating retail sales business facility, in accordance with Urban 6 Renewal Law and the Redevelopment Plan and in substantial compliance with the Site Plan. "Relocation Costs" means all costs related to the relocation of business tenants and residents in the Project Area in accordance with the Wheat Ridge Urban Renewal Authority Relocation Polices for this Project. "Schedule of Performance" means, the schedule that governs the times for development/redevelopment performances, obligations and requirements of and by the Parties (described in Exhibit B hereto). "Site Plan" means the plans for development of the Property submitted by the Developer, and that has been approved by the City as the Site Plan for the Property incident to the City's approval of the special use permit and building permit, a copy of which Plan is to be attached hereto as Exhibit C and made a part hereof. The Site Plan may include, by illustration only, the documents, drawings, plans, specifications and other data which illustrate, explain and provide details of (but not limited to) grading, erosion controls, storm water retention facilities, landscaping, roads, vehicular/pedestrian facilities, utilities, elevations for the Improvements and narrative and drawings for development of the Property, and which addresses building fa<;ade, building architecture, building colors and materials, life safety and similar details, streetscape, methods for maintaining safety of pedestrians and vehicles, parking, circulation and access, lighting, signage and other matters required by the City, "Special Use Permit" means a permit granted by the City Council for a discretionary use, which use is clearly shown to be void or deficient in an area and which, if properly designed, developed, operated and maintained, may be approved for any specific location within a zone district wherein the special use is enumerated. "The Cornerstone Group XXII, L.L.C." means Developer. "Title Company" means Chicago Title Insurance Company unless otherwise agreed in writing by the Parties. 1.2 PURPOSE The public purpose of this Agreement is to further the goals and objectives of the Urban Renewal Law by providing for the elimination, control and prevention of the spread of blight by and with the redevelopment of a portion of the 38th Avenue Redevelopment Area Corridor pursuant to the Redevelopment Plan. The Authority has determined that the redevelopment of the Property in accordance with this Agreement conforms to the Redevelopment Plan and the Urban Renewal Law and is in the best interests of the community. 7 SECTION 2. DESCRIPTION OF PROJECT The Developer agrees to acquire and develop/redevelop the Property described in Exhibit A in accordance with the Site Plan by constructing the Improvements described herein. All construction required of the Developer by this Agreement shall be undertaken and completed in accordance with the Schedule of Performance (Exhibit B), the Special Use Permit, the Consolidation Plat, vacation of right-of way, Environmental Laws, the Site Plan, all applicable laws and regulations, including City codes and ordinances, the Redevelopment Plan, and shall be performed in accordance with and subject to the terms and conditions of this Agreement. SECTION 3. PURCHASE OF THE PROPERTYIDEPOSIT 3.1 AGREEMENT TO PURCHASE On the terms and conditions of this Agreement and at the Closing, the Authority agrees to sell the Property described in Exhibit A and the Developer agrees to purchase such Property from the Authority. 3.2 PURCHASE PRICE FOR THE PROPERTY The price to be paid by the Developer for the Property at Closing (the "Purchase Price") is $1,412,000.00 in immediately available funds. 3.3 EARNEST MONEY-DEFAULT PRIOR TO CLOSING A. Upon execution of this Agreement by the Parties, the Developer shall deposit with the Title Company a check for $100,000.00 as Earnest Money to pay the Purchase Price for the Property and as security for its performance of other pre-closing requirements in this Agreement. The Title Company shall hold the check in an interest bearing account and apply same and interest as follows in paragraph B. B. The Earnest Money and interest shall be applied to the Purchase Price at Closing of the Property and the Developer shall be credited therefore, Upon Default of the terms and conditions of this Agreement by the Developer prior to Closing, the Developer shall forfeit the Earnest Money and interest to the Authority as the Authority's sole and exclusive remedy for breach of this Agreement and compensate the Authority for its legal fees, costs and delay in other opportunities to sell the Property for development to another Party. Developer agrees that forfeiture of the Earnest Money is reasonable. 8 SECTION 4. ACCESS TO THE PROPERTY 4.1. ACCESS TO THE PROPERTY BY THE DEVELOPER PRIOR TO CLOSING Prior to Closing and as of the date of possession, title to the Property, agreements with property owners, or orders of court (whichever date is earliest) by the Authority, the Authority hereby grants to the Developer and its employees, agents, servants, representatives and contractors, a license to enter the Property at reasonable times as the Developer deems necessary, and in a reasonable manner, for the purposes of making or performing, at the Developer's expense, such inspections, borings, surveys, engineering studies, soil tests and studies, environmental sampling and/or tests, as the Authority and Developer deem necessary or advisable. All such inspections, tests and reviews conducted on the Property by the Developer shall be undertaken in a safe, workmanlike and reasonable manner. No compensation shall be payable to the Authority, nor shall any charge be made in any form, by any Party for the license provided in this Section. The Parties hereby acknowledge that adequate legal consideration exists in this Agreement for the granting of such license. If required by the Authority, the Developer shall substantially restore the Property to its condition prior to any inspections, tests or reviews made by such Developer and the Developer shall defend, indemnify, protect and hold the Authority harmless from any and all liability, loss, cost, damage or expense which the Authority may sustain or incur by reason of such entry and conduct of such inspections, tests or reviews. The Developer shall employ all commercially reasonable efforts to avoid any material interference with the Authority's activities on the Property. 4.2 CLOSING ACCESS TO THE PROPERTY BY THE AUTHORITY AFTER After the Closing, the Developer hereby grants to the Authority and the City and their employees, agents, servants, representatives and contractors, a license (which license shall terminate upon Completion of Construction) to enter the Property and Improvements at all reasonable business hours except in emergencies, (as determined by the Authority or City) as they deem necessary, and in a reasonable manner, for the purpose of carrying out or determining compliance with this Agreement, the Redevelopment Plan, the Site Plan, the Consolidation Plat and any City code or ordinance including, without limitation, inspection or review of any work being conducted on the Property or Improvements, provided that the Authority shall use commercially reasonable efforts not to interfere with Developer's construction on the Property. Except in the event of an emergency, the Authority and City shall provide reasonable advance notice prior to such entry. No compensation shall be payable to the Developer, nor shall any charge be made in any form, by any Party for the license provided in this Section. The Parties hereby acknowledge that adequate legal consideration exists in this Agreement for the granting of such license. If requested by the Developer, the Authority and City shall restore the Property to its condition prior to any tests or inspections made by the Authority or City, except for inspections conducted pursuant to City codes and requirements. To the extent required by law, if at all, and 9 subject to applicable laws including without limitation the Governmental Immunity Act, the Authority hereby agrees to defend, indemnify, protect and hold the Developer harmless from any and all liability, loss, cost, damage or expense which the Developer may sustain or incur by reason of negligence related to such entry and the conduct of such tests, inspections and/or reviews. 4.3. PROGRESS REPORTS Following Closing and until Cornmencement of Construction, the Developer shall make reports in such form and detail, as may reasonably be requested by the Authority, regarding the actual progress of the Developer with respect to the Cornmencement of Construction. SECTION 5. CONDITIONS PRECEDENT TO CLOSING In addition to Sections 7.2 and 7.3, the following conditions shall be satisfied to the reasonable satisfaction of the Parties (see the Schedule of Performance regarding applicable time requirements of the conditions). Unless waived in writing by either or both Parties, as the case may be, if any condition is not realized, this Agreement may be terminated by either Party and the Earnest Money and interest returned to Developer. 5.1 AUTHORITY FINANCING A. Within the timing requirements described in the Schedule of Performance, the Authority shall use good faith efforts to secure the necessary funding (financing) to effect its obligations under this Agreement. B. The terms, conditions, requirements, performances and provisions of this Agreement pertaining to the Authority are specifically contingent upon the securing of funding, which terms and conditions of the funding, shall be at the sole discretion and determination of the Authority on or before the date provided for such purpose in the Schedule of Performance. Said financing will be by separate agreement(s), which may include the Developer and/or its lender/financier as Parties to same. Because the Developer will be incurring costs to fulfill its requirements of this Agreement, the Authority shall continuously and frequent! y advise the Developer of the progress/status of its securing of financing. C. If the Authority determines that the funding is not satisfactory, it shall give written notice thereof to the Developer and this Agreement shall be deemed terminated, null and void as of the date of such notice. The Earnest Money and interest shall be refunded to the Developer. 5.2 DEVELOPER'S FINANCING Prior to the Commencement of Construction of Improvements, Developer shall deliver to the Authority for the Authority's review and written approval a copy of a loan 10 commitment obtained by Developer for the construction financing necessary to construct all Improvements and fulfill its requirements under this Agreement. The scope of the Authority's right to approve such loan commitment for Developer's financing will be limited to confirming that: (a) the committing lender has sufficient financial capacity to provide the committed funds; (b) the proceeds of Developer's financing, when added to the Developer's equity investment, will be sufficient to fund the design and construction of all Improvements and perform its obligations under this Agreement; and (c) the lender has not imposed any conditions that will materially impair Developer's ability to perform its obligations under this Agreement. From and after approval by the Authority of such loan commitment, Developer shall keep the Authority advised of any material changes to the terms of Developer's financing, In addition to the foregoing, in the event the Holder provides a notice of Event of Default or claimed default to the Developer, the Holder shall also agree to/and shall provide written notice to the Authority of such default notice immediately upon providing such notice to the Developer. 5.3 ACOUlSITION OF THE SITE Prior to Closing, the Authority shall, at its expense, have acquired title to the Project Area and the Property, including the use of eminent domain, if necessary, subject to easements on the Consolidation Plat. 5.4 BUSINESSES AND/OR TENANTS RELOCATION Prior to Closing the Authority shall, at its expense, have taken all actions, including by illustration, relocation to ensure that all businesses and other tenants formerly occupying the Project Area are no longer in possession of and/or occupying any portion of the Project Area. 5,5 VEIDCULAR ACCESSfTRAFFIC STUDY Prior to Closing, the Developer shall have obtained access approvals/agreements to its reasonable satisfaction with the Colorado Department of Transportation ("CDOT") related to access ont%ff of Sheridan Boulevard. In relation thereto, Developer shall provide CDOT with the required traffic study within the time requirements described in the Schedule of Performance. 5.6 EVIDENCE OF COMMITMENT BY WALGREEN'S Prior to Closing and within the requirement of the Schedule of Performance, Developer shall provide the Authority with a copy and/or evidence of a binding letter of intent and irrevocable commitment from Walgreen's to operate a Walgreen's DruglRetail Store of not less than 14,000 square feet of Improvements and for a lease period of not less than 25 years, which document is subject to the reasonable satisfaction of the Authority. 11 5.7 APPROVAL OF LAND USE MATTERS BY CITY The Property is zoned C-l (Commercial-One) and as such is eligible for the use described in this Agreement except the drive-through pharmacy, which requires approval of a Special Use Permit by City Council. Prior to Closing, the City must have approved the Consolidation Plat, vacation of the alley right-of-way, Special Use Permit and Site Plan in substantially the same form as that in Exhibit C hereto for the Property, The City shall approve such matters prior to Closing as provided in the Schedule of Performance. The construction of the Improvements shall conform substantially with the approved Site Plan and building permit. 5.8 PERMITS Prior to Closing the Developer shall have obtained all permits required by the City for construction of the Improvements, including the permits described in Section 5.7. 5.9 ENVIRONMENTAL ASSESSMENT Within the time requirements of the Schedule of Performance and immediately after the Effective Date of this Agreement, the Parties shall conduct an environmental assessment of the Property, The Authority shall pay a portion of the costs therefore, not to exceed $3,500.00. Dependent upon such assessment, the Parties shall either agree as to environmental remediation, if any is required, or terminate this Agreement, as the case may be. If the parties agree to remediate environmental contamination, if any, the Authority shall be responsible for paying a portion of the costs therefore, not to exceed $50,000.00. The Authority shall provide to Developer copies of any existing studies and assessments in the Authority's possession. 5.10 DUE DILIGENCE. As provided in the Schedule of Performance, the Developer shall commence performance of due diligence on all matters related to the Property and the requirements of this Agreement. 5.11 CLOSING Subject to satisfaction of all conditions prior to Closing in this Agreement, the Closing shall occur on or before October 28, 2003. Closing may be extended by agreement of the Parties. 12 SECTION 6. FINANCING/HOLDERffAXES 6.1 HOLDER NOT OBLIGATED TO CONSTRUCT Notwithstanding the provisions of this Agreement, a Holder (including a Holder or other person or entity who obtains title to all or part of the Property as a result of foreclosure proceedings, or deed in lieu thereof and including any other Party who thereafter obtains title to the Property or such part from or through such Holder or other person or entity) will not be obligated by this Agreement to construct or complete the Improvements, or any of them, or to guarantee such construction or completion. A Holder and such other persons specified above and their successors in interest may, at their option, construct the Improvements required under this Agreement in accordance with Section 6.3. 6.2 COPY OF NOTICE OF DEFAULT TO HOLDER In the event that the Authority delivers to Developer a demand or notice of any claimed Default or Event of Default by Developer under this Agreement, the Authority will at the same time transmit a copy of such demand or notice to the Holder at the last address of such Holder shown in the records of the Authority. All notices under this Section will be given in accordance with the. provisions of Section 19.3. 6.3 HOLDER'S OPTION TO CURE DEFAULTS After any Default or Event of Default under this Agreement any Holder will have the right, at its option, to cure or remedy or to cornmence to cure or remedy any such Default or Event of Default (or such Default or Event of Default to the extent that it relates to the part of the Property covered by its Mortgage) within the period for cure in Section 15.1 after receipt of such notice (or so long as cure has been commenced within such period, for so long as the Holder is diligently and continuously prosecuting such cure), and to add the cost therefore to the indebtedness secured by the Mortgage; provided, that such cure or remedy is undertaken in accordance with the terms and provisions of this Section. Nothing contained in this Agreement will be deemed to permit or authorize a Holder to undertake or continue the construction of the Improvements, except to the extent such Holder reasonably deems the same necessary to conserve or protect the Improvements or construction completed, without first having expressly assumed Developer's obligations with respect to the portion of the Property and Improvements which Holder elects to construct and/or complete by written agreement reasonably satisfactory to the Authority. The Holder, in that event, must agree to construct/complete in the manner provided in this Agreement, such portion of the Improvements, or such other improvements as the Authority may approve in writing, which the Holder has agreed to construct and/or complete. The Holder shall submit evidence satisfactory to the Authority that it has the qualifications, legal ability and financial responsibility necessary to perform such obligations. 13 6.4 TAXES AND FEES Developer shall be responsible for and pay all taxes and fees related to the construction of the Improvements and the development of the Property, including, by illustration only, plat review fees, site plan review fees, sales and use taxes, building permit fees, utility tap fees, demolition permit fees, fence permit fees, sign permit fees, street cut permit fees, right-of-way permit fees, grading permit fees, right-of-way vacation fees and NPDES permit fees. The Authority acknowledges that none of the Property depicted on the Site Plan is subject to any valuation or assessment agreement establishing minimum valuations or assessments for tax purposes. SECTION 7. DEEDffITLE MATTERS 7.1 FORM OF DEED; RECORDING At Closing, the conveyance of the Property will be accomplished by execution and delivery of a Special Warranty Deed. The Deed shall be subject to the Permitted Exceptions in Section 7.3. Such Deed shall be subject to all the terms, conditions and requirements of the Agreement. After delivery by the Authority, the Developer shall promptly record the Deed with the Clerk and Recorder of Jefferson County, Colorado and pay the costs therefore. 7.2 TITLE REVIEW-SURVEY The Authority shall provide Developer, in accordance with the Schedule of Performance, a title insurance commitment (the "Commitment") for an owner's title insurance policy (the "Title Policy") for the Property, In addition, the Authority shall provide to Developer survey of the Property prepared in accordance with 1992 ALT N ALSM Land Title Survey Standards ("Survey"), A. Commencing on the date the Commitment and related documents, including any subsequent endorsements that add any exceptions to title, (the "Title Documents") and the Survey are delivered to the Developer, the Developer shall have not more than 14 days thereafter to review the Title Documents and the Survey and approve or disapprove any matter that does not conform with Section 7.3. If the Developer disapproves any matter, other than those in Section 7.3, affecting title to the Property or matters disclosed by the Survey, the Developer, within said 14-day period, shall notify the Authority in writing of such defect; provided, however, no such matter shall be considered a defect unless, in Developer's reasonable judgment, it materially affects the Site Plan. The Authority shall have 14 days from the date of such notice to use good faith efforts to correct such defect. If, upon the expiration of said 14 day period, the Authority has not corrected any such title defect to the Developer's reasonable satisfaction, or, if such defect cannot be corrected in such time or the Authority has not commenced and is not pursuing reasonable action to cure or correct such defect and such cure or correction is not completed at least 14 days thereafter, which 14 curative action may include affirmative protection against such defect provided by the Title Company, the Developer may terminate the Agreement, and the Earnest Money and interest shall be returned to the Developer. B. If the Developer fails to notify the Authority of any defect in title or in the Survey as herein required, title shall be deemed acceptable to the Developer and the Agreement shall remain in full force and effect. The Title Company shall provide to both Parties prior to the Closing, updated Title Documents and a written agreement assuring the Developer that the Title Company will insure against matters affecting title in violation of this Agreement, which have not been previously waived by Developer, and that carne of record or are otherwise discovered, and which are not due to the activities of Developer, since the date of the last Commitment and the 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. C. If necessary, the Authority shall provide non-disturbance agreements with any lenders or underlying fee owners with respect to any easement areas, in a form reasonably acceptable to the Developer and the Authority within 10 days of written request by Developer. 7.3 CONDITION OF TITLE Any Title Policy issued by the Title Company insuring title to the Property shall not include the standard preprinted exceptions 1 through 5. Title to the Property shall be free and clear of all liens, defects and encumbrances, except the following Permitted Exceptions: (a) this Agreement, including those terms included in the Deed; (b) the Redevelopment Plan; (c) the Site Plan; (d) the Consolidation Plat; (e) those matters, including easements and rights of way that are part of the Site Plan or Consolidation Plat, or are approved, accepted, or waived by the Developer; (f) easements for existing utilities that will continue in use; and (g) taxes and assessments not yet due and payable. 7.4 TITLE INSURANCE POLICIES Promptly after recordation of the Deed, the Title Company shall issue the Title Policy in accordance with the Commitment(s) described in Section 7.3. The Authority shall be responsible for all costs of the Title Policy (including extended coverage over the general exceptions) and any title insurance commitments, policies or endorsements required by the Developer. Upon written request, the Developer shall provide the Authority with a copy of all title insurance policies and endorsements issued to the Developer. 15 SECTION 8. OBLIGATIONS OF DEVELOPER AFTER CLOSING 8.1 CONSTRUCTION OF IMPROVEMENTS, A. Developer shall, at its expense, and in accordance with the Schedule of Performance, construct or cause the construction of the Walgreen's DruglRetail Store, containing at least 14,000 square feet. B. Developer shall construct, or cause to be constructed, all of the Improvements in substantial compliance with the Site Plan. C. Developer shall commence, or cause the commencement of, Walgreen's Improvements within the time periods required in the Schedule of Performance, Completion of Construction shall, subject to Force Majeure, occur as provided in the Schedule of Performance SECTION 9. PROPERTY RELATED MATTERS 9.1 NO REPRESENTATIONS OR WARRANTIES Except as specifically provided herein, the Authority has not made, does not make and specifically negates and disclaims any representations, warranties, covenants or guarantees of any kind, whether express or implied, (a) concerning or with respect to the presence of Hazardous Substances on the Property or compliance of the Property with any and all applicable Environmental Laws and (b) the value, nature, quality or condition of the water, soil and geology of the Property. 9.2 UPDATED SURVEY. After any platting of the Property and, if required by the Title Company, the Authority agrees to deliver to the Developer an updated Survey of the Property in form and substance required to satisfy the reasonable requirements of such Title Company, including the issuance of extended coverage over the general exceptions and the issuance of a survey endorsement. 9.3 VACATIONS. Within the time specified in the Schedule of Performance, the Developer will assist the Authority in securing the City's approval of vacation of the alley adjoining the Property or of any utility vacations necessary to construct the Improvements. 9.4 DEDICATIONS: DEVELOPER NOT TO CONSTRUCT OVER UTILITY EASEMENTS. The Developer and (if appropriate) the Authority shall dedicate, as appropriate, all easements, public streets, alleys and rights of way required by the Site Plan and applicable City requirements. The Developer shall not construct any building or other permanent structure other than planters, landscaped areas, surface parking and public 16 plazas, on or over such easements and rights-of-way, except for roof or canopy overhangs with written explanation of the reasons therefore, 9.5 CONFORMANCE OF IMPROVEMENTS. All work with respect to the construction of the Improvements shall conform to the approved Site Plan and all applicable laws, codes and ordinances. SECTION 10. CERTIFICATE OF COMPLETION/OPERATION OF BUSINESS 10.1 ISSUANCE AUTHORITY In compliance with the Schedule of Performance, following Completion of Construction of the Improvements, the Authority will furnish the Developer with a Certificate of Completion certifying completion, The Certificate of Completion shall be a conclusive determination of satisfaction and termination of the agreements and covenants recited therein. 10.2 COMMENCEMENT OF BUSINESS As required in the Schedule of Performance, Walgreen's shall commence operation of its drug/retail business following issuance of the Certificate of Completion. SECTION 11. REPRESENTATIONS AND WARRANTffiS 11.1 REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER Developer represents and warrants to the Authority that: A. The Cornerstone Group XXII, L.L.C. is a Delaware limited liability company, duly organized and validly existing under the laws of the State of Delaware is not in violation of any provisions of its organizational or operating agreements or the laws of the State of Colorado, has the power and legal right to enter into this Agreement and has fully authorized the execution, delivery and performance of this Agreement by proper action. B. The consummation of the transaction contemplated by this Agreement will not violate any provisions of the governing documents of Developer or constitute a default or result in the breach of any term or provision of any contract or agreement to which Developer is a Party or by which it is bound. C. Developer will cooperate with the Authority and City with respect to any litigation brought by a third Party concerning the Redevelopment Plan, the Site Plan, the Property, the Walgreen's Improvements, the Improvements, this Agreement or any other matter related to this Project. 17 D. As of the date of this Agreement, Developer is not aware of any litigation, proceeding or investigation contesting the power or authority of the Developer or its officers with respect to the Site Plan, this Agreement and the Walgreen's Improvements or Site Improvements. Developer is unaware of any such litigation, proceeding, or investigation that has been threatened. E. The construction of the Walgreen's Improvements and the contemplated uses and occupancies thereof shall comply substantially with all applicable federal, state and City laws, rules and regulations, including, but not limited to, building, zoning and other applicable land use codes, subject to modifications reasonably approved by the City pursuant to the planning, subdivision, zoning, environmental and other applicable ordinances and regulations. F. Developer shall construct, install, maintain and operate, or cause the construction, installation, maintenance and operation of the Walgreen's Improvements and the Site Improvements (subject to Force Majeure) in substantial compliance with this Agreement, the Redevelopment Plan and the Site Plan. G. Developer has the necessary financial and legal ability, as required by the Urban Renewal Law, to perform the Agreement and to construct the Walgreen's Improvements and the Site Improvements. 11,2 REPRESENTATIONS AND WARRANTIES OF THE AUTHORITY The Authority represents and warrants to the Developer that A. The Authority is a body corporate and politic and has been duly created, organized, established and authorized to transact business and exercise its powers as an urban renewal authority within the City of Wheat Ridge, Jefferson County, Colorado, under and pursuant to the Urban Renewal Law of Colorado. B. The Authority has the power and legal right to enter into this Agreement and has fully authorized the execution and performance of this Agreement by proper action. C. The consummation of the transactions contemplated by this Agreement will not violate the Urban Renewal Law or any provisions of the Authority's governing documents and will not constitute a default or result in the breach of any term or provision of any contract or agreement to which the Authority is a Party or by which it is bound. 18 D. The activities of the Authority in the Project Area are undertaken for the public purpose of eliminating blight and preventing the development or spread of blight and effecting the redevelopment of Property. E. The Authority is a tax-exempt entity, so that no general real estate or ad valorem taxes are due by the Authority with respect to the Property, or any portions thereof, for periods of time during which the Authority owns the Property. F. The Authority shall use diligent and good faith efforts to secure the financial resources to finance its obligations under this Agreement. SECTION 12. GENERAL COVENANTS 12,1 FINANCIAL INFORMATION Developer agrees to provide to the Authority, during the existence of this Agreement, copies of annual financial statements, certified by an officer of the Developer, prepared in accordance with Developer's accounting practices and relating to the Project. The Authority agrees to keep such information confidential and, to the extent legally permissible, to treat it as proprietary cornmercial and financial information not subject to disclosure under any applicable law. In the event that the Authority is compelled by a court of competent jurisdiction to disclose such information, it shall provide prompt notice to Developer and provide reasonable assistance, at Developer's expense, including the Authority's reasonable attorneys' fees, to Developer in seeking a protective order. 12.2 COOPERATION REGARDING LITIGATION The Developer and the Authority shall cooperate with each other with respect to any litigation brought by a third Party concerning the Urban Renewal Law, the Redevelopment Plan; the Development Plan; the Property; the Improvements; any action in eminent domain; relocation; or this Agreement. SECTION 13. SAFETY IINDEMNIFICA TIONIINSURANCE 13.1 NON-LIABILITY The Developer acknowledges and agrees that the City's review and approval of the plans for the development of the Property is one in furtherance of the general public health, safety and welfare and that no specific relationship with, or duty of care to, the Developer or third Parties is assumed by such review approval, or irnmunity waived, as is more specifically set forth in the Colorado Governmental Immunity Act. 19 13.2 PROTECTION OF PERSONS AND PROPERTY At all times prior to Completion of Construction of the Improvements, the Developer shall take reasonable precautions for safety and protection to prevent damage, injury or loss, as a direct result of Developer's design, inspection and construction activities on the Property to persons and property in the area. The Developer shall comply with all applicable safety laws, regulations and building codes, and shall post signs and other warnings notifying employees and members of the public of all construction hazards. The Developer shall promptly remedy physical damage to the Improvements caused in whole or in part by the Developer, its contractors and subcontractors or anyone employed directly or indirectly by any of them, or by anyone for whose acts they may be liable and for which the Developer is responsible, except for damage or loss attributable to acts or omissions of the Authority. 13.3 DEVELOPER INDEMNIFICATION; INSURANCE Developer shall defend, indemnify, and hold the Authority, its commissioners, officers, attorneys, consultants, director and employees harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys' fees and costs), which may be caused by any of the Developer's design, inspection and construction activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone directly or indirectly employed or contracted with or by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement, except for damage or loss attributable to acts or omissions of the Authority. At all times while the Developer is engaged in preliminary work with respect to the Project and during the period from the Commencement of Construction until Completion of Construction, 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 in an amount equal to 100% of the replacement value of the Improvements at the date of Completion of Construction; and (b) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations, and contractual liability insurance), automobile and umbrella liability insurance with a combined single limit for both bodily injury and property damage reasonably acceptable to the Authority; and (c) Worker's compensation insurance, with statutory coverage, including the amount of deductible permitted by statute. The policies of insurance required under paragraphs (a) through (c) above shall be reasonably satisfactory to the Authority, placed with financially sound and reputable 20 insurers, require the insurer to give at least 30 days advance written notice to the Authority in the event of cancellation or change in coverage and shall name the Authority as an additional insured. 13.4 REPAIR OR RECONSTRUCTION During construction of the Improvements, Developer shall immediately notify the Authority 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 Completion of Construction, and subject to the rights, obligations and limitations imposed by any Holder, 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 Developer, or whoever receives the proceeds, 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. 13.5 ENVIRONMENTAL INDEMNITY Following Closing and without limiting the foregoing, Developer hereby agrees to indemnify, defend and hold harmless the Authority, its commissioners, attorneys, consultants, officers, director and employees from and against any and all Environmental Liabilities, whenever and by whomever asserted, with respect to the Property, unless caused by acts or omissions of the Authority, or its contractors or subcontractors, or anyone directly or indirectly employed by the Authority, or its contractors or subcontractors. As used in this Section "Environmental Liabilities" shall mean any obligations or liabilities (including any claims, demands, actions, suites, judgments, orders, writs, decrees, permits or injunctions imposed by any court, administrative Authority, obligations and liabilities) that are: (a) related to protection of the environment or human health or safety and involving the Property (including, but not limited to, on-site or off-site contamination by Pollutants and occupational safety and health); and (b) involving the Property and arising out of, based upon or related to (i) the Environmental Laws, or (ii) any judgment, order, writ, decree, permit or injunction imposed by any court, administrative Authority, tribunal or otherwise, The term "Environmental Liabilities" shall also include, but not be limited to: (a) fines, penalties, judgments, awards, settlements, losses, damages (including foreseeable and unforeseeable consequential damages), costs, fees (including reasonable attorneys' and consultants' fees), expenses and disbursements; (b) defense and other responses to any administrative or judicial action (including claims, notice letters, complaints, and other assertions of liability); and (c) financial responsibility for (i) cleanup costs and injunctive relief, including any removal, remedial or other response actions and natural 21 resources damages, (ii) any other compliance or remedial measures, and (iii) bodily injury, wrongful death and property damage, The terms "removal", "remedial" and "response" action shall include the types of activities covered by CERCLA, as amended, and whether the activities are those which might be taken by a governmental entity or those which a government entity might seek to require of waste generators, storers, treaters, owners, operators, transporters, disposers or other persons under "removal", "remedial" or other "response" actions. SECTION 14. DEFAULT/EVENT OF DEFAULT 14.1 DEFAULT BY DEVELOPER Subject to an Event of Default by the Authority, default by the Developer shall mean one or more of the following events: (a) Developer fails to purchase the Property from the Authority, subject, however, to the satisfaction of the Conditions Precedent to Closing in Section 5, and, the performance by the Authority of all of its obligations hereunder prior to Closing; or (b) Developer does not cornmence, and thereafter complete, construction of the Improvements within the time periods required in the Schedule of Performance, or abandons construction of the Improvements once begun, For purposes of this subparagraph (b) and without limiting the preceding sentence, the cessation of construction activities for 30 consecutive days prior to substantial completion shall be deemed an abandonment; provided, however, that a temporary cessation of construction activities resulting from Force Majeure shall not be deemed to be abandonment for the duration of such Force Majeure; or (c) Developer fails to promptly pay any uncontested cost or expense required to be paid by the Developer to a person or entity, including the Authority and City under the terms of this Agreement; or (d) Subject to cure provisions, the Developer is subject to or involved in foreclosure, or a deed in lieu of foreclosure, by the Holder for default of mortgage obligations; or (e) Subject to Section 18, Developer transfers or assigns its interest in this Agreement in the Property or the Improvements, or any interest in Developer is transferred or assigned without the written consent of the Authority; or (f) Developer commences a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in affect, or is the subject of an involuntary case of such nature not dismissed within 90 days after it is filed, or consents to the appointment of or taking possession by 22 a receiver, liquidator, assignee, custodian, trustee or sequestrator (or other similar official) of Developer or of the Property, or Developer makes any general assignment for the benefit of creditors or fails to pay its debts as they become due or takes any action in furtherance of such action; or (g) 'Subject to the cure provisions in Section 15.1, Developer fails to comply, observe or perform any material covenant, obligation, provision, requirement or agreement of Developer in this Agreement; or (h) Any representation or warranty made in this Agreement by Developer was materially inaccurate when made, or shall prove to be materially inaccurate during the terms of this Agreement. 14.2 DEFAULT BY THE AUTHORITY Subject to an Event of Default by the Developer, default by the Authority shall be the failure to comply with the applicable provisions of this Agreement, In any such Default is not cured within the time provided in Section 15.1, then, subject to Force Majeure, an Event of Default shall be deemed to have occurred and the Developer may exercise any remedy available to it in this Agreement. SECTION 15. EVENTS OF DEFAULT/NOTlCES OF DEFAULT! OPPORTUNITY TO CURE DEFAULT/REMEDIES. 15.1 NOTICE OF DEFAULTS: OPPORTUNITY TO CURE DEFAULTS Anything hereunder to the contrary notwithstanding, no Default under this Agreement shall constitute an Event of Default until actual notice of such Default shall be given to the Party in Default by the other Party or Parties hereto, and the Holder or by the Holder to the Authority, and the Party in Default shall have had 30 days (60 days for failure to meet the dates for Completion of Construction set forth in the Schedule of Performance) after receipt of such notice to correct said Default or cause said Default to be corrected, and shall not have corrected said Default or cause said Default to be corrected within the applicable time period for same. If said Default is of a nature that it cannot be corrected within the applicable correction period, it shall not constitute an Event of Default if corrective action is instituted within the applicable correction period and diligently pursued until the Default is corrected within a reasonable period of time thereafter. 15.2 DEVELOPER'S REMEDIES If any Event of Default by the Authority occurs hereunder, and the Developer is not at such time in Default of any provision of this Agreement, the Developer may, upon written notice thereof to the Authority, (a) seek enforcement of the Authority's performance obligations under this Agreement by specific performance or injunction; or (b) seek any available remedy at law, provided, however, the Authority shall not be liable 23 for indirect, special, consequential or punitive damages, nor shall the Authority be liable for exemplary damages or lost profits; or (c) cure such Event of Default by performing any or all of the Authority's obligations that are within such Developer's power to so perform, and the amounts reasonably expended by said Developer in performing such obligations, together with interest thereon at the then current rate for construction financing or at the highest rate allowed by law, whichever is lower, for each day that elapses from the expenditure by the Developer until payment by the Authority, shall be paid to the Developer by the Authority. Under no circumstances may the Developer suspend its own performance hereunder or seek or elect to terminate this Agreement if the Event of Default by the Authority occurs hereunder following Closing, but prior to the Completion of Construction of the Improvements, unless the Developer determines in its reasonable judgment, that such Event of Default materially affects its ability to properly and timely perform its obligations hereunder and in accordance with the Schedule of Performance. 15.3 AUTHORITY REMEDlliS If any Event of Default by the Developer occurs, and the Authority is not at such time in Default of this Agreement, the Authority may, upon written notice thereof to the Developer, in addition to the remedy in Section 17, (a) seek contract enforcement of the Developer's obligations under this Agreement by specific performance or injunction; cure such Event of Default by performing any or all of the Developer's obligations and the amounts reasonably expended by the Authority in performing such obligations, together with interest thereon at the then current rate for construction financing or at the highest rate allowed by law, whichever is lower, for each day that elapses from the expenditure by the Authority until the payment by the Developer, shall be paid to the Authority by the Developer and shall be a lien on the Developer's Property until the Authority is paid in full; (b) cause to withhold a building permit or certificate of occupancy with respect to the Improvements; (c) cause to withhold from the Developer provision of new utilities, services or fixtures to buildings for which the City has not already issued certificates of occupancy; or (d) terminate this Agreement in accordance with Section 16. 15.4 FORCE MAJEURE For the purposes of any of the provisions of this Agreement, neither the Authority nor the Developer,.nor any successor in interest or permitted assigns, shall be considered in breach of or Default in its obligations under this Agreement, nor shall this Agreement be terminated, in the event Force Majeure delays the Party from discharging its respective obligations hereunder. SECTION 16. TERMINATIONIEXPIRATION OF AGREEMENT 16,1 DEVELOPER'S OPTION TO TERMINATE PRIOR TO CLOSING Subject to Section 15, the Developer may terminate this Agreement by written notice to the Authority prior to Closing if the Conditions Precedent to Closing are not 24 satisfied or waived so as to allow the Closing to take place on or before the time designated in the Schedule of Performance. 16.2 THE AUTHORITY'S OPTION TO TERMINATE PRIOR TO CLOSING Subject to Section 15, the Authority may terminate this Agreement by written notice to the Developer prior to Closing if any of the Conditions Precedent to Closing are not satisfied or waived so as to allow the Closing to take place on or before the time designated in the Schedule of Performance. 16.3 NOTICE TO TERMINATE Termination of this Agreement under this Section, or any other provision hereof allowing a Party or Parties to terminate this Agreement must be accomplished by written notification delivered by the Party terminating this Agreement. Termination shall be effective on the date received by the recipient or specified in such notice, whichever is later. 16.4 EFFECT OF TERMINATION PRIOR TO CLOSING If this Agreement is terminated prior to Closing, then this Agreement shall be null and void and of no further effect and the Earnest Money and interest shall be returned to the Developer. No action, claim or demand may be based on any term or provision of this Agreement, except for an action, claim or demand based upon a Default of the Agreement, which occurred prior to the effective date of termination. 16.5 EXPIRATION Except for the provisions of this Agreement which, by their terms, survive such expiration, this Agreement shall expire by its terms as to the Developer, upon the date Developer completes the construction of the Improvements and a Certificate of Completion is issued by the Authority. The Authority shall provide to the Developer, as appropriate, for recording, written verification of the expiration of this Agreement by its terms, subject to the surviving provisions. SECTION 17. AUTHORITY'S OPTION TO REPURCHASE In addition to any other remedies in Section 15.3, upon the occurrence of an Event of Default by the Developer after Closing, but prior to the Completion of Construction, and subject to Section 15.1, the Authority shall, for a period of 180 calendar days after the occurrence of such Event of Default, have an exclusive option to repurchase the Property and any Improvements constructed or under construction at such time on the Property, in exchange for a payment in an amount equal to the Purchase Price and the actual costs of any Improvements constructed or under construction at such time the Property; subject however, to any encumbrances incurred by the Developer and reasonably approved by the Authority. In the event the Authority notifies Developer of its exercise of the option to repurchase, Developer shall deliver to the Authority, within 25 10 business days of receipt by Developer of the exercise notice, a warranty deed reconveying the Property and the Improvements to the Authority. If Developer fails to provide such deed, the Authority may seek a court ordered deed and Developer shall pay all costs and expenses, plus attorney and expert fees, associated with obtaining same. SECTION 18. RESTRICTIONS ON ASSIGNMENT AND TRANSFER 18,1 REPRESENTATIONS AS TO REDEVELOPMENT The Developer represents and agrees that its purchase and ownership of the Property, and its undertakings under this Agreement, is for the purpose of development and/or redevelopment of the Property and not for speculation and land holding. The Developer further recognizes that: (a) The development of the Property is important to the general welfare of the Authority, the City and the community and is consistent with the Redevelopment Plan. (b) Substantial financial expenditures and cooperation have been made available by the Authority to make such development possible. (c) It is because of the qualifications and identity of the Developer that the Authority is entering into this Agreement with the Developer and the Authority is willing to accept and rely on the obligations of the Developer for the faithful performance of all of its undertakings and covenants under this Agreement. 18.2 NO SALE OR TRANSFER WITHOUT CONSENT In consideration of this Section, the Developer agrees and consents to the following restrictions on assignment and transfer: Prior to the Completion of Construction, the Developer shall not make, erect, create or suffer to be made or created, any total or partial sale or transfer in any form of the Agreement, the Property, the Improvements, or any interest therein, or any agreement to do the same, all as applicable, without the prior written approval of the Authority. Notwithstanding any other provision of this Section, the Authority acknowledges that the Developer may assign its interests in this Agreement to an affiliated entity for the purpose of constructing and operating the Project. The Authority will consent to such assignment upon submission by the Developer of all documents related to the assignment and approval by the Authority indicating that all applicable provisions of this Agreement, as determined by the Authority, have been satisfied to the reasonable satisfaction of the Authority. 18.3 CONDITIONS TO THE AUTHORITY'S CONSENT The Authority may require as a condition to its approval any or all of the following: 26 (a) Any transferee shall have the qualifications and financial capacity and legal responsibility, as reasonably determined by the Authority, necessary to fulfill the obligations of the Developer, or to function as co-developer with the Developer. (b) Any transferee, by legal instrument satisfactory to the Authority, shall assume all of the obligations of the Developer under this Agreement, and agree to be subject to the conditions and restrictions to which the Developer is subject or such different obligations approved by the Authority. The fact that any such transferee or successor has not assumed such obligations or so agreed, shall not relieve such transferee or successor from such obligations, conditions or restrictions, or limit any rights or remedies of the Authority with respect to the Property or the construction of the Improvements. No transfer of ownership of all or any part of the Property or any interest therein, however occurring and whether voluntary or involuntary, shall limit the Authority's rights, remedies or controls provided in this Agreement. (c) The transferring Developer shall submit to the Authority for review all legal instruments and documents involved in effecting transfer. If approved by the Authority, such approval shall be indicated to the Developer in writing. (d) The transferring Developer and its transferee(s) shall comply with such other reasonable conditions as the Authority may reasonably require to safeguard the purposes of the Urban Renewal Law and the Redevelopment Plan. 18.4 NO SALE OR TRANSFER WITHOUT CONSENT In the absence of specific written agreement by the Authority, no sale or transfer of the Property prior to the Completion of Construction, as applicable, shall relieve the selling or transferring Developer, or any Party bound by the Agreement or otherwise, from any of its obligations, With such a written agreement, the selling or transferring Developer shall be relieved of its obligations under this Agreement. 18,5 TRANSFER FOLLOWING COMMENCEMENT OF OPERATION OF WALGREEN'S Notwithstanding the foregoing, following commencement of business operations on the Property by Walgreen's, the Developer may transfer the Property and Improvements without authorization of the Authority. 27 SECTION 19. GENERAL PROVISIONS 19.1 LIMITATIONS OF RIGHTS With the exception of rights herein expressly conferred, nothing expressed or implied by this Agreement is intended or shall be construed to give to any person other than the Parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement or any covenants, conditions and provisions hereof, 19.2 NO VESTING The Agreement shall not vest any property rights in the Developer as provided in 24-68-101 et. seq. C.R.S. or any applicable laws 19.3 NOTICES All notices, certificates or other communications shall be sufficiently given and shall be deemed given when given by hand delivery, overnight delivery, mailed by certified or registered mail, postage prepaid, (notice deemed given three days after deposit in U.S. Mail) or dispatched by telegram or telecopy (if confirmed promptly telephonically), addressed to the appropriate Notice Address or at such other address or addresses as any Party hereto shall designate in writing to the other Parties hereto and the Agency. The addresses of the Parties are as provided in Section 1.1. 19.4 WAIVER No failure by either Party hereto to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement, or to exercise any right or remedy consequent upon a breach of this Agreement, shall constitute a waiver of any such breach or of such or any other covenant, agreement, term or condition. Either Party, by giving notice to the other Party may, but shall not be required to, waive any of its rights to any conditions or any of its obligations hereunder. No waiver shall affect or alter the remainder of this Agreement. Each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach. 19,5 ATTORNEYS' FEES-COSTS In any legal proceeding brought to enforce the provisions of this Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys' fees, actual court costs, costs of suit, expert witness fees and costs, consultant's costs and fees and other expenses incurred, 28 19.6 CONFLICTS OF INTEREST The Authority shall not allow, and except as disclosed in writing to the Authority, the Developer shall not knowingly permit, any of the following persons to have any interest, direct or indirect, in this Agreement: A member of the governing body of the Authority; an employee of the Authority who exercises responsibility concerning the urban renewal project, or an individual or firm retained by the Authority who has performed legal, professional or consulting services in connection with the Project. None of the foregoing persons or entities shall participate in any decision relating to the Agreement that affects his/her personal interests or the interests of any entity in which he/she is directly or indirectly interested. 19.7 SURVIVAL No representations or warranties whatsoever 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 before Closing shall be deemed to be continuing and shall survive the Closing. 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 are required to be performed in whole or in part after the Closing. 19.8 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. 19.9 AUTHORITY NOT A PARTNER; DEVELOPER NOT AUTHORITY'S AGENT Notwithstanding any language in this Agreement or any other agreement, representation or warranty to the contrary, the Authority shall not be deemed or constituted a partner or joint venturer of the Developer. . The Developer shall not be the agent of the Authority and the Authority shall not be responsible for any debt or liability of the Developer or any operator or manager of the Improvements. 19.10 APPLICABLE LAW The laws of the State of Colorado shall govern the interpretation and enforcement of this Agreement without giving effect to choice of law principles. 29 19.11 BINDING EFFECT This Agreement shall be binding on and injure to the benefit of the Parties hereto, and their successors and assigns, subject to the limitations on assignability of this Agreement by the Developer as described in this. Agreement. 19.12 FURTHER ASSURANCES The Parties hereto agree to execute such documents, and take such action, as shall be reasonably requested by the other Party hereto to conform or clarify the intent of the provisions hereof and to effectuate the agreements herein contained and the intent hereof. 19,13 TIME OF ESSENCE Time is important to the Authority and the Developer, in the performance of this Agreement and such Parties agree that strict compliance is required as to any date or time requirements set forth herein. If the final date in any provision of this Agreement is on a Saturday, Sunday or legal holiday (when national banks are closed), then in such event, the duration of such period shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sunday or legal holiday. 19.14 SEVERABILITY If any provision, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants or portions of this Agreement and, to that end, any provisions, covenants, agreements or portions of this Agreement are declared to be severable. 19.15 GOOD FAITH: CONSENT OR APPROVAL In performance of this Agreement or in considering any requested extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily or capriciously, or unreasonably withhold or delay any approval required by this Agreement. Except as otherwise provided in this Agreement, whenever consent or approval of either Party is required, such consent or approval shall not be unreasonably withheld, conditioned or delayed. The Developer agrees and acknowledges that in each instance in this Agreement or elsewhere where the Authority or the City is required or has the right to review or give its approval or consent, no such review, approval or consent shall imply or be deemed to constitute an opinion by the Authority or the City, or impose upon the Authority or the City, any responsibility for the design or construction of building elements, including the structural integrity or life/safety requirements or adequacy of budgets or financing or compliance with any applicable federal or state law, or local ordinance or regulation, including the Environmental Laws. 30 19.16 AUTHORITY COOPERATION The Authority will cooperate with the Developer to obtain the City's expeditious approval of the Site Plan, any amendment to the Site Plan and the City's issuance of any permits, licenses, or commitments necessary for the Project so that such approvals are not unreasonably withheld; provided, however, that such approvals or issuances of such permits, licenses or commitments is subject to the sole and exclusive discretion of the City. 19.17 COUNTERPARTS This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument. 19.18 NON-LIABILITY OF OFFICIALS AND EMPLOYEES No board member, commissioner, official, employee, consultant, attorney or agent of the Authority shall be personally liable to the Developer in the Event of Default, or breach of the Agreement by the Authority, or for any amount that may become due to the Developer under the terms of this Agreement. 19.19 INCORPORATION OF EXHIBITS All exhibits, documents and appendices attached to this Agreement are incorporated into and made a party of this Agreement. 19.20 MEMORANDUM OF AGREEMENT A memorandum of this Agreement shall be recorded by the Authority in the records of the County of Jefferson under the legal description of the Property, describing the material terms of this Agreement except the financial terms. The Authority agrees, upon Completion of Construction, to cause said memorandum to be released of record, subject to al provisions in this Agreement, which continue in effect. 19.21 RIGHTS OF LENDERS AND INTERESTED PARTIES The Authority is aware that financing for acquisition, development and/or construction of the Improvements may be provided, in whole or in part, from time to time, by one or more third parties, including, without limitation, lenders, major tenants, equity partners and purchasers or developers of portions of the Property (collectively "Interested Parties"). In the event of an Event of Default by the Developer hereunder, the Authority shall provide notice of such Event of Default, at the same time notice is provided to any Interested Parties previously identified to the Authority. If any Interested Parties are permitted under the terms of its agreement with the Developer to cure the Event of Default and/or to assume Developer's position with respect to this Agreement, the Authority agrees to recognize such rights of any Interested Parties and to otherwise 31 permit such Interested Parties to assume all of the rights and obligations of the Developer under this Agreement, subject, however, to the Authority's reasonable determination in writing that applicable provisions of the Urban Renewal Law, Redevelopment Project, Redevelopment Plan, Site Plan and this Agreement shall be complied with by such Interested Parties. The Authority shall, at any time upon reasonable request by the Developer, provide to any Interested Party an estoppel certificate or other document evidencing that this Agreement is in full force and effect and that no Event of Default by Developer exits hereunder (or, if appropriate, specifying the nature and duration of any existing Event of Default). Upon request by any Interested Party, the Authority will enter into a separate assumption or similar agreement with such Interested Party, consistent with the provisions of this Section. 19.22 ENTIRE AGREEMENT: AMENDMENTS This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces in their entirety any agreements, understandings, warranties, or representations between the Parties. This Agreement shall not be amended except in writing. Each amendment, which is in writing, signed and delivered by the Parties, shall be effective to amend this Agreement. 19.23 ESTOPPEL CERTIPICATE The Parties agree to execute such documents as the other Party shall reasonably request to verify or confirm the status of this Agreement and of the performance of the respective obligations of the Parties and such other matters as the requesting Party shall reasonably request. 19.24 TIME EXTENSIONS All time requirements in this Agreement and the Schedule of Performance may be adjusted by the Parties in writing. Signed by the Parties effective May 1, 2003. WHEAT RIDGE URBAN RENEWAL AUTHORITY THE CORNERSTONE GROUP , XXII, L.L.C. By: The Cornerstone Group I, Inc., Manager By: Ij~R~ Chair By: Its: 32 ATTEST: ~-ri;J51~ tfr7-- ~~~ . Secretary STATEOFCOLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me the .;( fl d day of ~...- , 2003, by ptarV IftlSA.ern as Chair, and ~ lAy ,..dd -liYr /flirt L,,-=.er,'as Secretary of the WHEAT RIDGE URBAN RENEWAL AUTHORITY. WITNESS my hand and official seal. My commission expires: My Commission Expires 1-24-2006 STATE OF ILLINOIS ) ) ss COUNTY OF COOK ) I, a Notary Public, do hereby certify that , personally known to me to be the of THE CORNERSTONE GROUP I, INC., an llIinois corporation, the sole Manager of THE CORNERSTONE GROUP XXII, L.L.C., a Delaware limited liability company, and personally known to me to be the person whose name is subscribed in the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as of The Cornerstone Group I, Inc., the sole Manager of The Cornerstone Group XXII, L.L.C" pursuant to authority, as his free and voluntary act, and as the free and voluntary act and deed of said corporation and limited liability company, for the purposes therein set forth. Given under my hand and notarial seal the _ day of ,2003. Notary Public 33 06/121200a 14:18 FAX 312 201 ~649 t;UHNJ<I!S'I'ONJ< ~002 permit such Interested Parties to assume all of the rights and obligations of the Developer under this Agrelllllent, subject, however, to the Authority'.s reasonable detenninatioll in writing that applicable provisions of \:he Urban Renewal Law, Redevelopment Project, Redevelopment Plan, Site Plan atld this Agreement shall be complied with by suob Interested Parties. The Authority shall, at any time UPOIl reasonable request by the Developer, provide to any Interested Party an estoppel certificate or other document evidencing that this Agreement is in tw1 force and effect and that no Event of Default by Developer exits hereunder (or, if appropriate, specifying the nature and duration of any existing Event of Default). Upon request by any Interested Party, the Authority will enter into a separate assumption or similar agreement with lluch Interested Party, consistent with the provisions of this Section. 19.22 ENTIRE AGREEMENT: AMENDMENTS This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces in thair entirety any agreements, understandings, warranties, or t'Cpresentations between the Parties. This Agreement shall not be amended except in writing. Each amendment, which is in writing, signed and delivered by the Parties, shall be effective to amend this Agreement, 1923 ESTOPPEL CERTJFICATE The Parties agree to execute such docmnents as the other Party shall =onably request to verifY or confum the status of this Agreement and of the performance of the rllspective obligations of the Parties and such other matters as the requesting Party shall reasonably request. 1924 TIME EXTENSIONS All time requirements in this Agreement and the Schedule of Performance may be adjusted by the Partieli in writing. Signed by the Parties effective May 1, 2003. WHEAT RIDGE URBAN RENEWAL AUTHORITY THE CORNERSTONE GROUP . XXII, L.L.C. By; The Cornerstone Group I, IDe,. By: Chair By: Its: 32 Ugr~~~~V~~ L~;L~ rAA ~~~ ~UL ~nQ~ l"UI(Nt;lCb'll.1Nli ATTEST: Secretary STATE OF COLORADO ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me the . 2003, by day of as Chair, and of the WHEAT RIDGE URBAN as Secretary RENEWAL AUTHORITY, WITNESS my hand and official seal. My commission expires: Notary Public STATE OF ILLlNOIS ) ) ss ) , COUNTY OF COOK I, a NotaIy Public, do hereby certify tha:'llli fJl J!/JIo~lmown to me to be the lfrlflO ?1~l2.. of THE CORNERS NE GROUP I, INC., an illinois corporation, the so Manager of THE CORNERSTONE GROUP XXU, L.L.C" a Delaware limited liability company, and pel'Sonally known to me to be the person whose IllIID.e is subscribed in the foregoing instrument, appeared before me this day in person and aclmowledged that he signed and delivered the said instrument as ~lAJdl.tr' of The Cornerstone Group I, mc., the sole Manager of The Cornerstone Group XXII, L.L.C., pursuant to authority, as his free and voluntary act, and as the free and voluntaty act and deed of said COIporation and limited liability company, for the purposes therein set forth. Given wuler my hand and notarial seal the -L day 0 2003. "(lFFIJ:W, SEAL" JdSEPHIt$S, SIMON NotaIY Public. Slats Qf illinois My Camml 'ApIlt17, 28Il8 33 il!I003 Wheat Ridge Urban Renewal Authority Legal Description A tract of land in the Northeasl1!4 of Section 25, Township 3 South, Range 69 West of the 6th Principal Meridian and also being a pan of Block 1, Pearson - Woodside Addition as record~d in Book 6, Page 8 of the official records ofth~ County of Jefferson, Stale of Colorado, and being more particularly described as fullows: Commencing at the Northeast Carner of said Northeast y.;; thence SOD. 15' 49M W along the East line of said Northeast V., said Hne also being the centerline of Sheridan Boulevard, 65.00 feet; thence S 89. 59' 58~ W, 30.00 feet to a point on the East line of said Block 1 and the West line of Sheridan Boulevard, said point being the POINT OF BEGINNING; thence N 45. OT 56" W along the Southerly line of that tract of land described at Reception Numbe!' 91056588, said line also being the Southerly line of West 38th Avenue, 28.35 feet; thence continuing along said Sourherly line S 89. 59' 58" W, 115.45 feel; thence N 00. 15' 49" W along said Southerly line, 5.00 feel to a point on the North line of said Block 1, said point also being a point on the Southerly line of Wesr38,h Avenue; thence S 89. 59' 58" W along said Northerly line of Block ], 135.45 feel to the Northwest corner of said Block I; thence SOD. 15' 49" E aloog the West line afsaid Block I, 167.20 feel to the beginning ofa curve; thence Southerly along a cwve to the left and along the West line of said Block I, 89,27 feet, which curve bas a rndius of 523.00 feet, a central angle of9. 46' 48" and whose chord bears S 5' 09' 13" E, 89.16 feet, to Ih~ Southwesterly comer ofLo121 of said Block I; thence N 89.59' 58" E along the Southerly line of said Lot 21, 127.85 feetto the Southeast corner of said Lot 21; thence N 00' IS' 49" W along the East line of said Lot 21,25.00 fel:t; thence N 89' 59' 58" E along a line parallelrolhe North line Qf said Block I, 135.45 feet to a point an the East ]ille of said Block I and the West line of Sheridan Boulevard; thence NOD' 15' 49" W along said East line of said Block I and the West- line of Sheridan Boulevard, 206.00 feet to the POINT OF BEGINNING, County of Jefferson, Slate of Colorado. Said lraCl contains 64,861.93 square feel f 1.4890 acres more or less. The bearings described herein are based on the East line of the Norrheast !4 of Section 25, T3S, R69W, said line bears N 00. IS' 49" W as established by the City of Wheat Ridge. The Drafter of this descriplion is Paul A. Lenzini, P .L.S., prepared on behalf of the Wheat Ridge Urban Renewal Authority, 7500 West 29"' Avenue, Wheat Ridge, Colorado 30033 and is not to be construed as being a monumented land survey. EXHIBIT A WEST 38TH AVENUE 8 ,.; ~, !!! 51N'r1r6t/W 136AS' tiJ w a:: ~ ffi ij ~ ~ <( - !o! ~ 1 2. 3 ''\.i'''',"", .rL., 1,~,.;i'J /i.,I::I"'i, '{.r"'~~'~' ;'*'''''';';)1' '..,.~""'.w"'/"""'l . ,,,r. .. ~ 25,00' I ~ ~ 8. ! ~ ~ ~ ~ \ 4 1 . _", .,L- ~:', '\~8';' '( jo i" ,~:; '/ . '1' 5 6 I 25.cll' I 30.45' J 35,45' , ALLEY 22 ... ,\' I'~ "~... .. >~." -,' ".';, 21 s~~>,,~':. ~~\l:t;"'f:':.r 8 ~ ;?; N89'59'58'E 127,/16' .,. ; 20 SCALE: l'~50' Exhibit A NORTHEAST CORNER SECTION 25, T3S. R69W ~ 8 ~ ~ ." 30' ~ 789 I 'I I \ 1..:M.1" .t.j\,". ," ,1-" '--..I 10 Cl 0:::: ~ ::) o al Z ~ 5: w J: CI) I 25,00' I 25m El i3 ~ ~ ~ ~ 11 ,.;..' '"~.:.: ; ~.,~\ ~~~,' . ... ~'. .r, ,,' ".1", :":'C. 12 N!l9"W'SS'E 130,"0' 13 ~~(~~(~~~~ ~~:~~ 6829577546 REECE ANGELL ROWE PAGE: 32 T T as", AVENUE CORNEll PU CFT STQEETSCAPE . ""lS -. """ . []."",,,,- - I &. CW 5280 :i25t1Cm) S20S " ~ to ;; ~ " ,.. << . :> " '" II;; ;: ~ rr.~u~' ~ .. ... " ... ".1 sr I3Il!I M.(b!I,. ~ .. I ... ....:..'~"~~i1~ ~ ~ '"' .. " 7It*...~~.. ~ A~\.E" ~ " 11..- 1"'~' ~ "-4' ," S;:sGCbl 3?9<., - .. a!. ...... 0 ,. I ~ V' ~ 0> ~. ~ " ; '" .. "ff Q tl ,]719 I I 3749Cb> -..-"", --___.J PftEIJMINAl1y ~8 ....", I....... EXHIBIT A-I EXHIBIT B Schedule of Performance EVENT 1. Execution Of Agreement And Deposit Of Earnest Money (Effective Date) 2. Conclusion Of Due Diligence CONDITIONS PRECEDENT TO CLOSING: 1. Securing Of Developer's Project Financing 2. Securing Of Authority's Financing 3. Preliminary Description and Boundary Survey to Developer 4. Inspection Of Property Regarding Contamination 5. Determination Regarding Contamination Remediation, If Necessary 6. Developer's Securing of Vehicular Access To Property Including Traffic Study to CDOT 7. Completion Of Due Diligence By Developer 8. Title Commitment And Survey To Developer By Authority 9. Acceptance/Rejection Of Title/ Survey By Developer 1 TIME May 1,2003 July 31, 2003 July 31,2003 July 31,2003 July 31,2003 July 18, 2003 July 23, 2003 July 23, 2003 July 31, 2003 Upon Acquisition of Property by Authority Fourteen (14) After Receipt of Title Commitment/Survey from Authority 10. Satisfaction of Title/Survey By Authority Fourteen (14) Days After Notice of Defect from Developer 11. City Approvals Of Land Use MattersIPermits Granted Five (5) Days before Closing 12. Binding Written Commitment From Walgreen's May 27,2003 13. Completion Of Acquisition Of Property/ Relocation Of TenlUlts/Businesses By Authority Twenty (20) Days before Closing 14. CLOSING October 28, 2003 15. Commencement Of Construction Of Improvements By Developer Ninety (90) Days after Closing 16. Completion Of Construction (Subject To Force Majeur) Eight (8) months after City Approves building plans and issues building permit 17. Certificate Of Occupancy For Walgreen's Two (2) months after completion of Construction 18, Commencement Of Business Operations by Walgreen's Sixty (60) Days after Certificate of Occupancy 19. Issuance Of Certificate Of Completion By Authority Five (5) Days after Commencement of business by Walgreen's ALL TIME REQUIREMENTS ARE SUBJECT TO REASONABLE EXTENSIONS BY WRITTEN AGREEMENT(S) BETWEEN THE PARTIES, 2