2010/08/04 Council Agenda Packet

and rerouting of power lines that exist on the Property at Closing and does not include other power upgrades that may be necessary for the Project, which are at Developer's sole cost; and (iii)the City is not responsible for removal of the old power vault. 4.2 Parking Light Pole. Within thirty (30) days after Closing, the City shall remove the parking lot light pole located at the east boundary line of the Property. 4.3 Overhead Power. Within thirty (30) days after Closing, the City shall take the necessary actions to relocate the overhead power that is connected to the northeast corner of the building located on the adjacent lot to the south of the Property so that it does not interfere with the construction of the Project. 4.4 Traffic Signal Support Pole. Within thirty (30) days after Closing, the City shall (i)remove the traffic signal support pole and guy pole located at the southeast corner of Colby Avenue and Wall Street and(ii)replace the traffic signal and relocate the associated traffic signal control box to a location that is situated away from the Project's frontage along Colby Street and its corner frontage at the intersection of Colby Avenue and Wall Street. The City shall commence the Initial City Work immediately after Closing and shall diligently complete the Initial City Work. Upon the completion of the Initial City Work, the City shall deliver a notice of completion to Developer(the"City Notice of Completion"). Section 5. Development and Construction. 5.1 Generally. Developer shall construct and complete the Project as specifically described and depicted in the Approved Plans and Specs and in accordance with all Legal Requirements. Developer shall construct and complete the Project so that the Project satisfies all requirements of the Marriott Franchise Agreement. The parties agree that no construction will commence prior to satisfaction of the conditions set forth in Section 5.2 below. The parties further agree that such construction shall commence not later than one (1) month after the delivery of the City Notice of Completion (the "Project Construction Start Date") and shall be substantially completed in accordance with the terms and conditions of this Covenant on or before the date that is thirty (30) months after the Project Construction Start Date (the "Project Completion Date"), subject only to Force Majeure or as extended by amendment to this Covenant. For the purposes of this Covenant, commencement of construction means commencement of site development work at the Property (e.g., grading and/or excavation). Once construction has commenced on the Project, Developer shall proceed diligently (subject only to delays for Force Majeure) with such construction until the Project has been substantially completed. 5.2 Conditions Precedent to Commencement of Construction. Before commencing construction on the Property, Developer shall be in material compliance with this Covenant, including, without limitation, obtaining all necessary permits to commence construction. 5.3 Onsite and Offsite Improvements. As a material part of the consideration for Developer entering into this Covenant, the City and Developer have agreed to the following terms and conditions related to the following onsite and offsite Improvements associated with the Project: -6- 51083924.1