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remaining to be made under the ODOT Contract. <br />5. Covenants of Benefactor. Benefactor represents; covenants and warrants for the benefit of <br />City as follows: <br />5.1 As of the date of execution hereof, Benefactor has full authority to make his promises <br />and pledge herein and has the financial capacity to make all payments shown on <br />Exhibit A in a timely fashion; <br />5.2 Benefactor is without actual knowledge of any claim, lien or other threat or <br />encumbrance against his assets or property that, with the passage of time, would so <br />impair his financial condition as to make him unable to make the payments shown <br />on Exhibit A in a timely fashion; <br />5.3 The execution and delivery of this Agreement and its performance by Benefactor will <br />not conflict with or result in a violation or breach or constitute a default under, any <br />contract, agreement or other obligation to which Benefactor is bound or is a party or <br />for which Benefactor is a guarantor. <br />6. Benefactor's Pavment Obli~ationis Bindin~. City and Bet~efactor understand and intend that <br />the obligation of Benefactor to make the payments shown in Exhibit A by the dates shown <br />therein shall constitute a binding contractual obligation of Benefactor for the full term of this <br />Agreement. Benefactor understands and acknowledges that City's execution of the ODOT <br />Contract is made in reliance on Benefactors promises and pledge hereunder and that <br />Benefactor's default in any payment hereunder will constitute a substantial breach of this <br />Agreement. Benefactor's obf igatiori hereunder shall not be entitled to be diminished by any <br />off-set, counter-claim, or other defense, provided that, Benefactor's obligation to make <br />payments shall be diminished by the amount of moneys deposited by the City into the Pre's <br />Park Acquisition Account described herein from any other donation, gift or grant. <br />7. Citv's Use of Benefactor's Pavments. City makes the following representations with respect <br />-to its receipt, accounting and .use of payments made by Benefactor under this Agreement: <br />7.1 Separate Accountin~. .City will deposit all of Benefactors payments in a separate <br />subaccount (the "Pre's Park Acquisition Account") of the Parks Maintenance Trust <br />Fund ("Fund 724"), so that such payments will not be commingled with other funds <br />of City. All money on deposit in the Pre's Park Acquisition Account, together with <br />all earnings thereon, .shall be. dedicated solely to the uses permitted by this <br />Agreement. <br />7.2 Deposits to Pre's Park Acc~uisition Account. The Pre's Park Acquisition Account <br />shall receive all payments made by Benefactor hereunder and all other fiinds that <br />may, from time to time, be donated by other than Benefactor or deposited by the City <br />from other available funds for application to the purchase of the Property. <br />Agreement for Acquisition and Development of Pre's Rock Park - Pa~e 3 <br />