Attachment C - 2121 Broadway Community Benefit Covenant

Important Notice to Subsequent Purchasers & Interest-Holders This Community Benefit Covenant (this “Covenant”) contains important covenants and restrictions made for the benefit of the City of Boulder, Colorado (“City”) and its constituents. These covenants and restrictions “run with the land.” Subsequent purchasers and interest-holders are on notice of the City’s intent to enforce this Covenant and to promote the public’s receipt of the Community Benefits hereunder, subject to the rights of subsequent owners of the Property as set forth herein. Subsequent purchasers should not purchase the Property, and creditors and other stakeholders should not take interest therein, unless they intend to be fully bound by its terms (and understanding their rights hereunder).

COMMUNITY BENEFIT COVENANT The Parties agree that a significant benefit of the bargain for the City of Boulder Central Area General Improvement District’s (“Seller”) sale is that MA-LR Boulder, LLC (“Buyer”) and subsequent owners, of whatever form, will adhere to certain, continuing requirements on the real property legally described on Exhibit A (“Property”) that promote community welfare, vitality, and productivity on the Property. These continuing community benefits are detailed in this Covenant. This Covenant is made and entered into as of _________________ (“Effective Date”) by and between Seller and Buyer for the benefit of the City. Accordingly, on behalf of itself, along with any subsequent owner, purchaser, assignee, or transferee of the Property (collectively, “Subsequent Owners”), Buyer agrees as follows: I.

GENERAL.

The Community Benefits, individually and collectively, unless Buy-Out is exercised, run with the land in accordance with, and subject to, the following terms and conditions: A. Covenant Running with the Land. The covenants, obligations, and community benefit requirements set forth in this Covenant (collectively, the “Community Benefits”), including without limitation the payment obligations and the Buy-Out Clause, are intended to, and shall, constitute covenants running with the land pursuant to Colorado law. The Community Benefits shall be binding upon and enforceable against Buyer and all subsequent owners of any estate or interest in the Property, including without limitation any successors, assigns, transferees, and subsequent purchasers (collectively, together with Buyer, “Owner”), for the duration of the Community Benefit Period, and shall constitute real covenants and equitable servitudes running with the land pursuant to Colorado law. The following terms further govern: 1. Each Owner, by acceptance of a deed or other instrument conveying any interest in the Property, shall be deemed to have actual and constructive notice of, and to have agreed to be bound by, the Community Benefits and this Covenant. The Community Benefits touch and concern the Property and are intended to benefit the Property and the surrounding community. 2. Subject to the duration limitation (see below), the obligations of an Owner under this Covenant shall apply only for so long as such Owner holds record title to any fee interest in the Property, whether in whole or in part. Upon conveyance of such Owner’s entire fee interest, such Owner shall be released from prospective obligations hereunder, and the succeeding Owner shall thereafter be solely responsible for compliance. 3. For purposes of this Covenant, the term “Owner” shall be deemed to include the plural where the Property is held by more than one fee owner, and all such Owners shall be jointly 1

and severally liable for performance of the Community Benefits during their period of ownership. B. Duration – 30 Years. The duration over which these benefits shall run with the land shall commence on the Effective Date, which shall coincide with the closing and recording of the deed of the Property from Seller to Buyer, and shall thereafter run for a period of thirty (30) years, ending at 11:59 PM on the 364th day of the 29th year (the “Expiration Date”). The period between the Effective Date and the Expiration Date is hereafter called the “Community Benefit Period.” Owner(s) shall be subject to and bound by these terms and conditions during the Community Benefit Period. C. Written Confirmations. This Covenant references various written confirmations to be made by the City (hereafter, “Written Confirmation”). To be valid for purposes of this Covenant, a Written Confirmation shall consist of a written letter, appearing on City of Boulder, Colorado, letterhead, that is signed by the City Manager. Written Confirmations are designed to prevent or minimize the risk of dispute. 1. Effect. Upon issuance, Written Confirmations shall constitute affirmative proof for Buyer upon which Buyer may rely, along with any Subsequent Owner, that a decision, act, approach, or development of Owner will not violate a requirement, subject to the limitations herein. Written Confirmations shall otherwise not constitute a waiver and release of any rights of the City or public benefits described herein. 2. Narrowly Construed. Written Confirmations shall be narrowly construed, implicating only the narrow Community Benefit requirements that are explicitly addressed in the Written Confirmation. 3. City’s Sole Discretion. Unless stated otherwise herein, Written Confirmations, including any decisions made therein or statements contained in such Written Confirmations, are in the sole discretion of the City. D. Initial Development. Upon completion of the project’s schematic design plans, Buyer agrees to provide the City with drawings that depict the approximate areas, locations, and spacing designated to satisfy the requirements herein (the “Initial Development Drawings”). The Initial Development Drawings shall be overlayed on the Property site and shall be of sufficient detail to allow the City to understand the nature and location of dedicated Community Benefit locations in relation to Property and other development decisions of the Buyer. The Initial Development Drawings shall include such other information and details, including narrative form, as is needed to ensure the City understands how the Community Benefit requirements will be met. Buyer agrees to, thereafter, work in good faith to revise and adjust the Initial Development Drawings based upon City comments, which shall be delivered to Buyer within forty-five (45) days of receipt of the Initial Development Drawings. While the City understands the commitments of Buyer (and, indeed, any Owner) are limited to what is described herein, the Parties agree this process will avoid risk of misunderstandings early in the planning process and before construction. Thereafter, Buyer agrees to, in good faith, pursue planning and construction finalization that results in an as-built project that substantially aligns with the Initial Development Drawings approved by the City. 1. Upon development of plan documents, Buyer may request Written Confirmation from the City as to the adequacy of the plan documents. If provided by the City, and provided Buyer then completes construction in material compliance with such approved plans, the Written Confirmation shall constitute a presumption that the as-built Property meets the Community Benefit requirements contained herein (though it shall not be relevant for purposes of ongoing compliance and use of the space; e.g., recurring art exhibitions). 2. The terms in this section are independent of the City’s standard development, planning, and review processes. E. Subsequent Developments. For subsequent renovation or construction activities that may materially impact one or more of the Community Benefits, Owner agrees to go through the same 2

process as detailed in the “Initial Development” section immediately above. Owner shall not be required to undertake this process for construction or renovations which will not materially impact a Community Benefit, nor for any design schemes, aesthetic, improvements, fixtures, or other elements of the Property which, even if in areas designated for Community Benefit, the decisions concerning of which would not impact Owner’s compliance hereunder. F. Buy-Out Clause. Each Community Benefit is supported by, and guaranteed under, an individual “Buy-Out Clause.” The Buy-Out Clause contains the fixed dollar amount that Owner(s) shall pay to the City in the event that Owner materially fails to comply with a given Community Benefit and fails to cure within the “Cure Period,” as defined below. As a fixed amount, the Buy-Out Clause constitutes both a right and a restriction on each Party. The City is entitled to, though it cannot recover beyond, the fixed amount of each Buy-Out Clause. As a fixed amount, it also: 1. Annual Adjustment. The amount of each Buy-Out Clause shall adjust upwards by an amount of three percent (3%) per year until the Expiration Date. Such 3% shall first accrue beginning on the date the Property receives its Certificate of Occupancy, and shall compound, in simple form, annually on such date thereafter for the duration of the Community Benefit Period. 2. Subsequent Purchasers and Assignees. For purposes of this Covenant, the rights and responsibilities of Buyer, as described herein, shall run with the land, applying to the thencurrent owner of the Property. 3. Terms and Conditions. a. Mutual Waiver and Release – No Damages. With respect to this Covenant and the Community Benefits set forth herein, each Party, on behalf of itself, and its assigns, heirs, successors in interest, hereby expressly forever waives and releases the right to claim any damage, whether in type or amount, that is different from the Buy-Out amount of each Community Benefit that is stated herein. The Parties mutually agree that this waiver and release provides a benefit to both Parties by limiting Buyer and any Subsequent Owner’s liability for failing to adhere to any given Community Benefit and setting a floor on the amount to which the City is entitled upon a failure by Buyer or any Subsequent Owner. The Buy-Out amounts constitute the fixed and total compensation available to the City by virtue of any failure by Owner to adhere to the terms and conditions of any particular Community Benefit. No Party, including any Subsequent Owner, shall attempt to prove, or require the proof of, any damage amount beyond the amount stated in a Community Benefit’s Buy-Out Clause. Each Party agrees and represents that the Buy-Out Clause amounts below are reasonable given the nature of their benefit and the consideration and exchange of promises hereunder. b. Obligations and Rights Run with the Land. All subsequent purchasers of the Property take title under and subject to this Covenant, including, without limitation, the Community Benefit duties and Buy-Out Clauses described herein. Purchasers of the Property are on notice of this continuing covenant on the land. 4. Owner’s Right to Exercise Buy-Out. Beginning on the 1st day of the fifth (5th) year after the Effective Date, and throughout the Duration Period thereafter, Owner may, at any time, exercise one or more Buy-Out Clauses. a. Procedure. To exercise this right, Owner shall remit to the City Manager’s Office a letter stating, plainly, the Community Benefit it is seeking to have released, the amount owed, and the date of release. Owner shall remit payment to the City of the Buy-Out Amount associated with the Community Benefit(s) released. Thereafter, the City agrees to execute a Release of Community Benefit in 3

substantially the form set forth in Exhibit B and to remit a copy of such document to Owner. Owner may then record the executed document, thereby releasing the Community Benefit identified therein. The City shall have no obligation to sign the release where payment is not received, or it is unclear or uncertain as to which Community Benefits are sought for release. b. Effect. Upon Buy-Out, such Community Benefit shall no longer be in effect for purposes of this Covenant, and shall not, thereafter, be binding upon any Owner. The exercise of any Buy-Out Clause shall not relieve Owner of any independent contractual or legal obligations it may have concerning the use of the Property, such as existing leases or event usage contracts. G. Limited Exception – Renovations and New Construction. Owner shall not be required to satisfy the requirements of a Community Benefit to the extent it is conducting active renovation or active construction on the Property that temporarily prohibits or impedes full satisfaction of a Community Benefit’s requirements. To qualify for the exception in the prior sentence, (a) the temporary inability to meet all requirements cannot exceed 6-months in any given 24-month period, and (b) Owner must still attempt in good faith to meet all requirements to the extent feasible, including be phasing of construction activities or re-organization of project areas, as feasible. The City Manager or Director of the City’s Department of Facilities and Fleet may, in their sole discretion, by Written Confirmation, agree to a written extension of exception to one or more Community Benefit requirements. H. Deadline. Buyer warrants and guarantees that it will meet each of the Community Benefits no later than three (3) years after the Effective Date. II.

COMMUNITY BENEFITS.

The Community Benefits are as follows: A. COMMUNITY BENEFIT NO. 1 – AFFORDABLE COMMERCIAL SPACE AVAILABILITY. 1. Requirements. Upon development, and in no event beyond three (3) years from the Effective Date, Buyer shall continuously maintain no less than 2,000 square feet of leasable commercial space (the “Affordable Space”) that is dedicated to providing below-market rental rates to qualifying local and independent businesses engaged in the retail sale of goods, including food and drink, to the public. a. Rental Rate Discounts and Allocation. The Affordable Space shall be leased to commercial tenants at a discount of no less than twenty-five percent (25%) below the current market rate, as reasonably determined by Owner based on the depth of the discount and the size/location of the space allocated to the tenant. i. At any time, Owner may provide information about a particular lessee and proposed market rate to the City Manager for Written Confirmation. b. Designation. Within sixty (60) days of Owner’s receipt of approvals or permits issued by the City for (i) the initial development of the Property, and (ii) any construction project or renovation affecting the Affordable Space which requires a new building permit or Certificate of Occupancy, Owner shall furnish to the City Manager’s Office a drawing, plan, or map that clearly identifies the exact areas designated for Affordable Space. If units within a larger leasing space will serve as Affordable Space – e.g., the exact locations are unknown but a larger floor or space is will be available to accommodate Affordable Space lessees – then Owner shall designate such larger space in the same manner as 4

the prior sentence, whilst also providing to the City a written explanation of its plan to use portions of the space to meet this Community Benefit. c. Diligent Marketing Requirement. Should any portion of the Affordable Space remain vacant for more than six (6) cumulative months during any eighteen (18) month period, Buyer shall provide documentation to the Seller (or the City of Boulder, if designated) detailing all marketing, outreach, and tenanting efforts undertaken during the vacancy period. Buyer shall demonstrate continuous, diligent, and active marketing, which shall include, at minimum, outreach to City economic development agencies and local real estate brokers. 2. Buy-Out Amount. $250,000. B. COMMUNITY BENEFIT NO. 2 – PUBLICLY ACCESSIBLE SPACE AND COMMUNITY EVENTS. 1. Requirements. Buyer, and in the event of renovations or new construction, any other Owner, shall develop the Property in a manner that includes designated, no-charge, publicly accessible spaces to promote community gathering and cultural exchange. These must include: a. Food and Beverage Establishments: Dedicated areas for food and beverage establishments that will be fully open to the public during standard operating hours, except for special events; b. Public Rooftop Access: A publicly accessible rooftop component (e.g., a terrace, garden, or viewing area) that shall be open to the public without a required purchase for a minimum of twenty (20) hours per week during standard operating days/times, subject to capacity, weather, private event bookings (not to exceed 30% of operating hours in any given month), and necessary security restrictions. Language regarding public access shall be detailed in any development project’s operating plan and prominently displayed on-site; and c. Operational Discretion: Nothing herein constitutes a retention of rights in the Property or any portion of the space by the City. Though Owner shall provide general access as prescribed hereunder, Owner shall retain full discretion to manage access to the Property and its spaces in accordance with standard hospitality operating practices. Nothing herein shall be construed to require the Property to operate as a shelter, refuge, or unsupervised public gathering space. Owner reserves the right to deny, limit, or revoke access to any individual or group whose conduct is inconsistent with the safe and orderly operation of a hospitality establishment. 2. Buy-Out Amount. $200,000. C. COMMUNITY BENEFIT NO. 3 – ART AND CULTURAL COMMUNITY BENEFIT. 1. Requirements. Owner agrees to integrate art and cultural benefits into its development. The purpose of this is to promote art and cultural elements at and near the Property, including the enrichment of the public realm and to further support for local artists. This Community Benefit includes the following requirements: a. On-Site Commissioned Artwork: Separate from the buy-out amount in Section (C), Owner shall make a one-time donation to the Boulder Arts Foundation (“Boulder Arts Foundation”) in the amount of $100,000 for the commissioning of on-site public art to be included in the project development. Owner will comply with the City’s existing public art policies and processes applicable at the time of construction. The Foundation will maintain ownership 5

of all public art unless as may be expressly agreed in a contract between Owner and the Foundation. The City agrees that the above is limited to a single, onetime $100,000 donation. b. Rotating Exhibitions and Infrastructure: Owner shall host or facilitate rotating exhibitions and/or activations featuring the work of local artists for a minimum of three (3) exhibition cycles per year. Exhibitions shall be prominently featured and publicly-communicated and accessible exhibitions. c. Local Artist Installations: Owner shall commission at least thirty-five (35%) of all initial interior art installations (e.g., paintings, sculptures, wall treatments) for the project’s common areas and public spaces from local artists (residing within the seven-county Denver-Boulder Metropolitan Statistical Area). 2. Buy-Out Amount. $250,000. D. COMMUNITY BENEFIT NO. 4 – MODEL BUSINESS PRACTICES – DIVERSITY AND INCLUSION. 1. Requirements. Owner shall adopt and maintain model business practices regarding procurement, labor, and energy efficiency that applies to all major construction activities and renovations at the Property. Such practices shall include: a. Supplier Diversity Commitment: Owner shall implement a commercially reasonable supplier diversity program and commit to using good faith efforts to ensure that at least twenty percent (20%) of the total contract value for construction is awarded to certified Women-Owned Business Enterprises (WBEs) and Minority-Owned Business Enterprises (MBEs) based in the Colorado Front Range region. Owner shall provide the City with an annual report detailing progress toward this goal. b. Energy Performance: Beyond compliance with current City of Boulder Energy Conservation Codes, the as-built development shall target a minimum of ten percent (10%) better energy performance than the current code requires, as measured by a third-party certified energy model. Calculations shall be based on the project’s permit-set construction documents. Furthermore, Owner shall incorporate infrastructure to facilitate the future installation of on-site solar photovoltaic generation (e.g., adequate roofing support, conduit pathways) with a capacity sufficient to offset at least five percent (5%) of the as-built development’s projected annual energy consumption. 2. Buy-Out Amount. $200,000. E. COMMUNITY BENEFIT NO. 5 – HISTORIC PARKING LOT USERS ALLOWANCE. 1. Requirements. Owner agrees that, if Seller or the City require Owner as part of the initial development of the Property to construct and/or maintain any parking on or under the Property or require the payment or imposition of any fee, assessment or other amount in substitution or in lieu of having parking on the Property (“Parking Requirements”), and Seller pays all costs and expenses relating to the construction, maintenance, and management thereof, then Owner will not interfere with Seller’s efforts to accommodate historic institutional users of the parking lot on the Property (e.g., First Congregational Church). a. Alley Access and Facilitation: After construction of the project is complete, Owner shall cooperate in good faith with the First Congregational Church to maintain reasonable and safe access through the public alley adjacent to the Property to facilitate necessary church operations, including, but not limited to, deliveries, emergency access, and temporary, designated staging/drop-off areas 6

during non-peak hours of the project's operation, consistent with public rightof-way regulations. After construction of the project is complete, Owner shall not permanently obstruct the alley or take any action that materially degrades the Church’s historic vehicular or pedestrian access to its property from said alley. 2. Buy-Out Amount. N/A. This obligation shall continue as a covenant of the Property. F. COMMUNITY BENEFIT NO. 6 – TOURISM AND CULTURAL COLLABORATION. 1. Requirements. Owner acknowledges the importance of the local cultural and tourism economy and commits to collaborating with key community partners. This includes meeting the following requirements: a. Collaboration with Visit Boulder and Sundance Institute: Owner agrees to collaborate with Visit Boulder and organizations facilitating major cultural events, such as the Sundance Film Festival, regarding the availability, capacity, and rate structure of the project’s event spaces, Affordable Community Spaces, and, if applicable, lodging accommodations. The Parties agree that “collaborate” means that Owner shall use commercially reasonable efforts to collaborate with Visit Boulder and organizations supporting major cultural events, including the Sundance Film Festival, regarding the availability, capacity, and rate structure of the project’s event spaces, Affordable Community Spaces, and, if applicable, lodging accommodations. 2. Buy-Out Amount. N/A. This obligation shall continue as a covenant of the Property. III.

ADDITIONAL AND ADMINISTRATIVE TERMS. A. Breach and Cure Period. 1.

Declaration of Breach. In the event of any breach of this Covenant by a Party, the nonbreaching Party shall provide written notice specifying the breach. 2. Cure Period. The breaching Party shall have thirty (30) days from receipt of such notice to cure the breach; provided, however, that if the breach is not reasonably susceptible of cure within such thirty (30)-day period, the breaching Party shall have such additional time as is reasonably necessary to cure the breach, so long as the breaching Party promptly commences and thereafter diligently and continuously pursues such cure (the “Cure Period”). In no event shall the cure period extend beyond ninety (90) days from receipt of the notice of breach. a. This Cure Period may be extended in writing by Owner or by Written Confirmation. 3. Remedies. If the Owner fails to timely perform any Community Benefit and such failure continues beyond the Cure Period, the Owner shall be required to pay to the City the BuyOut amount specified in this Covenant for the specific Community Benefit violated, adjusted annually pursuant to the Buy-Out Clause above (Section I. F.) (the “Mandatory Buy-Out Payment”) within thirty (30) days (the “Mandatory Buy-Out Date”). To this end, the Parties acknowledge and agree that: (i) at the time of execution of this Covenant, the actual damages that the City would suffer as a result of such nonperformance would be difficult or impracticable to ascertain with reasonable certainty; (ii) the Mandatory BuyOut Payment represents a reasonable estimate of the anticipated harm to the City and the public arising from such nonperformance, including the benefit to the public, and a 7

reasonable offset amount from the original purchase price; and (iii) to the extent necessary to achieve enforcement, the Mandatory Buy-Out Payment is intended to constitute liquidated damages and not a penalty. Accordingly, the Mandatory Buy-Out Payment obligation shall be self-executing, shall arise automatically upon the occurrence of an uncured violation, and shall be immediately due and payable without the necessity of further action, demand, or approval by the City. If, for any reason, a Mandatory Buy-Out Payment is prohibited or not allowed, the City shall have the right to prove damages, including, by way of specific authorization and not limitation, damages associated with the discounted amount of the market value of the Property as of the Effective Date. a. Payment of the Mandatory Buy-Out Payment for a given Community Benefit shall relieve Owner of all requirements of that Community Benefit, but shall not relieve the Owner of responsibility for all remaining effective Community Benefits. b. Upon the triggering of the Mandatory Buy-Out Payment, to secure the timely payment of the Buy-Out Payment and all related amounts, Owner hereby grants to the City a continuing contractual lien and security interest against the Property (the “Lien”). The Lien shall secure the Buy-Out Payment, together with accrued interest, default interest, costs of collection, and reasonable attorneys’ fees (collectively, the “Secured Obligations”). The Lien shall attach automatically upon the occurrence of a continuing uncured violation and nonpayment of a Mandatory Buy-Out Payment and shall remain in effect until the Secured Obligations are paid in full or released by the City in writing. c. The City may, at its election, and in accordance with Colorado law: i. Beginning on the Mandatory Buy-Out Date, record a notice of lien, or a memorandum thereof in the real property records; ii. Enforce the Lien through judicial foreclosure or other lawful means; iii. Obtain a money judgment against the Owner and exercise all rights of a judgment creditor, including execution, levy, and garnishment; and iv. Exercise any other remedy available at law or in equity, subject to the Buy-Out Clauses’ limitations of amounts owed. d. The City’s rights and remedies are cumulative, and the exercise of one remedy shall not preclude the exercise of any other remedy. e. Beginning on the Mandatory Buy-Out Date, if not paid in full, the Mandatory Buy-Out Payment shall accrue interest at a rate equal to the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum rate permitted under Colorado law. f. Once the Mandatory Buy-Out Payment accrues, neither payment of the BuyOut Amount nor the Mandatory Buy-Out Payment shall relieve Owner of any obligation it has concerning attorney fees and costs, and the City shall not be precluded from seeking such fees and costs despite such payment. B. Applicable Law; Jurisdiction; Venue. This Covenant shall be construed in accordance with the laws of the state of Colorado. Any action or proceeding brought to interpret or enforce the provisions of this Covenant shall be brought before the state court situated in Boulder County or federal court situated in the City and County of Denver, Colorado and each Party consents to jurisdiction and venue before such courts. Each Owner shall be deemed to have consented to such jurisdiction and venue by virtue of their purchase of the Property. C. Subsequent Conveyances of the Property. For any conveyance, transfer, assignment, or other disposition of the Property, or fee portions thereof, or easement or access easements therein, Owner shall obtain a written acceptance of all new Owners (e.g., the subsequent purchasers to which they 8

have privity of contract) and shall deliver such written acceptance to the City. Notwithstanding this duty on Owners, the obligations under this Covenant of new Owners are self-executing, and the City is not required to obtain independent consent to be bound by these terms or to otherwise prove a new Owner is bound by these terms for any Owner of record. City agrees to execute such additional documents, including any estoppel certificates and take any such actions as may be reasonably requested by Owner in order to fulfill the purposes of this Covenant and a conveyance of the Property. D. Right to Reasonable Documentation and Evidence. Owner agrees to provide the City with such documentation, receipts, or other evidence of adherence to the Community Benefit requirements as may be reasonably requested by the City. Owner agrees to, in good faith, and where feasible, maintain and provide to the City such documentation, receipts, or other evidence of adherence within thirty (30) days of a written request by the City. E. Rights to Record. The City shall have the right to record this Covenant in the records of the Boulder County, State of Colorado. Owner shall have the right to record any Release of Community Benefit duly executed by the City Manager under this Covenant. F. No Partnership or Joint Venture. Nothing in this Covenant, nor in any subsequent document published or exchanged between the Parties, shall constitute a “partnership,” “joint venture,” or other arrangement of legal significance under the law beyond what is stated herein. G. Consideration Adequate. The parties acknowledge and agree that this Covenant and the covenants, obligations, and restrictions set forth herein are supported by good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. Such consideration includes, without limitation, the City’s sale, approvals, authorizations, forbearances, and other governmental actions relating to the Property. The Parties further acknowledge that such consideration is bargained for, substantial, and adequate to support the enforceability of this Covenant and each of its provisions, including those intended to run with the land, including by and among any Owners, who knowingly and willfully take title subject to this Covenant. H. City Powers Preserved. Nothing herein modifies, diminishes, or preempts the City’s ordinary powers and authority. Owner understands and agrees that the City will pursue its ordinary authority and control, regardless of any terms, conditions, or statements in this Covenant. By this Covenant, the City makes no promises, warranties, or guarantees concerning its exercise of powers afforded under the law. I.

Attorney Fees and Costs. Notwithstanding any conflicting terms and conditions of this Covenant, nothing in this Covenant precludes any Party, along with any Owner, from recovering their reasonable attorney fees and costs associated with enforcing its rights under this Covenant.

J. Governmental Immunity. Notwithstanding any other provision of this Covenant to the contrary, no term or condition of this Covenant shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, Sections 24-10-101, et seq., C.R.S., as now or hereafter amended. The Parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the City, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of Sections 24-10-101 et seq., C.R.S., as now or hereafter amended. 9

K. No Multi-Fiscal Year Obligation. The Parties understand and acknowledge that the City is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by this Covenant. It is understood and agreed that this Covenant remains in all respects subject to TABOR. L. Force Majeure. No delay, failure, or default will constitute a breach of this Covenant to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control (collectively, “Force Majeure”). In such event, however, the delayed Party must promptly provide the other Party notice of the Force Majeure. Owner shall not be excused from liability for delays or non-performance caused by events or conditions within its control nor for delays or non-performance which it could have foreseen and avoided, prevented or significantly ameliorated by exercising reasonable prudence or diligence, nor for any delays or non-performance caused in whole or in part by Owner itself. M. No Assignment. The obligations of Owner hereunder may not be assigned or transferred except to the extent such occurs by conveyance of the Property to one or more new Owners. N. Complete Agreement. This Covenant is intended as the complete integration of all understandings between the Parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein in writing. O. Amendment Via Signed Writing. No amendment or modification shall be made to this Covenant unless it is in writing and signed by the authorized representatives of both Parties. Neither the course of conduct, the course of performance, nor any trade practice between the Parties nor shall act to modify the provisions of this Covenant. Each amendment shall be recorded. P. Severability. If any provision of this Covenant shall be held or made invalid by a court decision, statute, or rule, or shall otherwise be rendered invalid, such provision shall be fully severable from this Covenant and the remainder of this Covenant shall be construed and enforced as if the illegal or invalid provision had never been included herein.

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Exhibit A Legal Description of the Property Lots 10, 11, 12, Block 119, original Town of Boulder, according to the recorded plat thereof, located in the City of Boulder, County of Boulder, State of Colorado

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Exhibit B Form of Release of Community Benefit

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Release of Community Benefit 1. This Release of Community Benefit (this “Release”) concerns the Community Benefit Covenant (the “Covenant”), Recorded at Rec. No. __________ . 2. By letter dated ______________, the Owner (as defined in the Covenant) has exercised its right to release one or more Community Benefit’s described in the Covenant. 3. The Community Benefit(s) released hereby are the following: [INSERT COMMUNITY BENEFITS] 4. The amount due and owing to the City for the release of the Community Benefit’s described herein total: $________. The City acknowledges receipt of these funds. 5. Accordingly, the Community Benefits described above are hereby released. Such obligations from the Covenant shall be of no further effect with respect to any subsequent purchaser or assignee of the property. 6. Except for the Community Benefits identified above, and except with respect to any Community Benefits that may have been previously released, the Covenant and its Community Benefit obligations remain intact.

SELLER: CITY OF BOULDER CENTRAL AREA GENERAL IMPROVEMENT DISTRICT, a general improvement district formed pursuant to Chapter 8-4, Boulder Revised Code 1981 By: _____________________________________________ Nuria Rivera-Vandermyde, City Manager of the City of Boulder as ex-officio general manager ATTEST: _________________________________ City Clerk APPROVED AS TO FORM ________________________________ City Attorney’s Office

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