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RES 2017-14 Adopted RESOLUTION NO. 2017-14 A RESOLUTION TO AUTHORIZE THE CITY TO ENTER INTO A MASTER PARKING FACILITIES OPERATING AND EASEMENT AGREEMENT WITH GREENSTONE HAMMOND'S FERRY, LLC WHEREAS, pursuant to the Master Development Agreement dated March 15, 2017 (the "Master Development Agreement"), by and among the City of North Augusta, South Carolina (the "City"), GreenJackets Baseball, LLC, Ackerman Greenstone North Augusta, LLC and Greenstone Hammond's Ferry, LLC ("Greenstone"), entered into by such parties for the development of Project Jackson, the City has certain responsibilities related to parking facilities within such development; and WHEREAS, the City has been involved with negotiations related to its responsibilities relative to the matter of parking facilities and has negotiated a contract with Greenstone, as developer, related to such responsibilities; and WHEREAS, the City intends to enter into a Master Parking Facilities Operating and Easement Agreement, by and between the City and Greenstone (the "Master Parking Agreement"); and, WHEREAS, the City Council has received and reviewed the Master Parking Agreement as negotiated, which is attached hereto, marked "Exhibit A" and incorporated by reference; and, WHEREAS, pursuant to the requirements of the Master Development Agreement, the Mayor and the City Administrator have reviewed the Master Parking Agreement specifically in relation to any terms set forth in Exhibit F attached to the Master Development Agreement and have determined that any deviations from details and material terms as set forth in such Exhibit F are satisfactory and they recommend the approval of any such deviations; and, WHEREAS, the City has determined that the Master Parking Agreement will allow the City to fulfill obligations under the terms of the Master Development Agreement and that it is in the best interest of the City to enter into the Master Parking Agreement. NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of the City of North Augusta, in meeting duly assembled and by the authority thereof, that: 1. The City approves the Master Parking Agreement attached hereto. 2. That the Master Parking Agreement is a "Parking Deck Agreement" as that term is defined in the Master Development Agreement and, except as specifically provided therein, is consistent with the details and material terms set forth in Exhibit F attached to the Master Development Agreement, but it is specifically acknowledged and confirmed by this resolution that any deviations from such details and material terms have been reviewed and approved by the Mayor and the City Administrator. 3. That the City Administrator is authorized to execute the Master Parking Agreement on behalf of the City. DONE, RATIFIED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA, ON THIS THE 24114 DAY OF APRIL,2017. Lark W. aes, Mayor ATTEST: Donna B. Young, ity Cled it MASTER PARKING FACILITIES OPERATING AND EASEMENT AGREEMENT BY GREENSTONE HAMMONDS FERRY,LLC AND THE CITY OF NORTH AUGUSTA,SOUTH CAROLINA DATED APRIL 25,2017 2017012080 AGREEMENT RECORDING FEES $34 00 �'� PRESENTED&RECORDED 05-16-2017 01:08 PM JUDITH WARNER _`. REGISTER OF 4¢SNE CONVEYANCE AMEN COUNTY,SC BY:JULIE STUTTS DEPUTY RMC BK: RB 4662 PG: 837 - 864 RETURN TO: 30495623 R.E.IIanna, 111 Hull Barrett,PC 111 Park Avenue,S.W. A ken.SC 29801 C 0 py TABLE OF CONTENTS Page 1. Definitions 1 2. Term 7 3. Use and Management of Parking Facilities Generally 7 3.1 Use 7 3.2 Management 8 4. Special Rights of Developer 9 4.1 Dedicated Parking Spaces 9 4.2 Available Office Parking Spaces 10 4.3 Short-Term Parking 10 4.4 Valet Parking 11 4.5 Conflicts with GreenJackets Baseball 11 4.6 Joinder 12 4.7 Applicable Laws 13 5. Developer's Share of Operating Expenses 13 5.1 Annual Statements 13 5.2 Monthly Payments 13 5.3 Adjustment for Taxes 13 5.4 Audit Rights 14 6. Default and Remedies 14 6.1 Default Notices 14 6.2 Enforcement 14 6.3 Self-Help 15 7. Dispute Resolution 15 7.1 Negotiated Settlement 15 7.2 Mediation 16 7.3 No Prejudice 16 8. Estoppel Certificates 16 9. Notices 16 10. No Partnership 17 11. Governing Law 17 12. Jurisdiction 17 30495623 _i_ TABLE OF CONTENTS (continued) Page 13. Severability 17 14. Diligent Performance 17 15. Entirety of Agreement.. 18 16. Successors and Assigns 18 17. Captions 18 18. Exhibits 18 19. No Waiver 18 20. Construction 18 21. Multiple Counterparts 18 22. Third Party Beneficiaries 18 23. Release from Liability 18 Exhibit"A"—BallPark Village Master Plan Exhibit "B"—Parking Space Allocations 30495623 -11- MASTER PARKING FACILITIES OPERATING AND EASEMENT AGREEMENT THIS MASTER PARKING FACILITIES OPERATING AND EASEMENT AGREEMENT (this "Agreement") is made as of the 25th day of April, 2017, by CITY OF NORTH AUGUSTA, SOUTH CAROLINA ("City"), and GREENSTONE HAMMOND'S FERRY,LLC ("Master Developer"). Recitals A. WHEREAS, on March 13, 2017, the City, Master Developer and certain other parties entered into a Master Development Agreement (the "Master Development Agreement"), pursuant to which, among other things, the City has designated Master Developer as master developer for a mixed use project in North Augusta, South Carolina, known as `Ballpark Village", which project is generally as shown on Exhibit "A", attached hereto and by this reference incorporated herein. B. WHEREAS, in connection with and as a part of the Master Development Agreement, Master Developer (as to the "Stadium Deck" as herein defined) the City and North Augusta Public Facilities Corporation ("NAPFC"), as issuer of the hereinafter defined "Bonds" (as to the "Medac Deck" and the "hotel Deck" as herein defined) own or, upon completion of development and construction, will own, all or portions of the structured parking facilities that will be a part of"Ballpark Village," and will provide parking for the users of such development, and for others, as more specifically set forth herein. C. WHEREAS, each of Master Developer and the City desire to set forth in this Agreement certain rights which parties will have to access parking spaces in the respective Parking Facilities owned, in whole or in part, by Master Developer and the City, certain rights which Master Developer and the City will retain with respect to and in connection with such "Parking Facilities" (as herein defined), and certain responsibilities and duties they each will have with respect to said Parking Facilities, upon and from and after the completion of construction thereof. D. WHEREAS, in conjunction with the Master Development Agreement, the City and Master Developer desire to enter into (1) this Agreement regarding the use, operation care and maintenance of the Parking Facilities; and (2) the "NAPFC Parking Joinder Agreement"(as herein defined), pursuant to which NAPFC shall become subject to, and entitled to the benefit of, this Agreement. Statement of Agreement For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the City and Master Developer hereby agree as follows: 1. Definitions. As used in this Agreement, the following terms have the meanings given below- 3049s623 "Agreement" means this Master Parking Facilities Operating and Easement Agreement, including all exhibits hereto, as amended, restated, replaced, modified or supplemented from time to time. "Applicable Laws" means any laws, ordinances, rules, or regulations of any nature or kind which would apply to,govern or limit the Parking Facilities or the use thereof "Available Office Parking Spaces"means (a)the parking spaces in the Stadium Deck that must be made available at certain times for the Office Space, which parking spaces are further described in Exhibit "B", attached hereto and by this reference incorporated herein, and the amount may be modified, up or down, by 5% or less, by Master Developer; and, (b) the parking spaces which must be made available at certain times for the current user of the office building adjacent to the Medac Deck. "Bonds" means the Installment Purchase Revenue Bonds, Series 2017B, to be issued by NAPFC to finance the lintel Deck and certain other projects in Ballpark Village and to refinance the Medac Deck and City Hall. "City"has the meaning given in recital paragraph A. "Dedicated Parking Spaces" means certain parking spaces in the Parking Facilities, which may or may not be marked, in one of two classes of parking spaces, as further described herein. Such parking spaces are shown on Exhibit "B", and those parking spaces identified as "Dedicated"on Exhibit"B" will be dedicated for use by the owners or occupants of certain uses in Ballpark Village on a 24 hour per day, 7 day per week basis: specifically, 55 parking spaces in the Stadium Deck (shown as 18 parking spaces for residents of Parcel Al; 5 parking spaces for use by the GreenJackets; 32 parking spaces for the Party which owns the Office Space shown as Parcel "C"; and 412 parking spaces (shown as 47 spaces for Retail/Restaurant Spaces [35 for valet parking use and 12 for use by staff of Retail/Restaurant Space]; 84 parking spaces for residents of Multi-Family Space on Parcels D and G; 1 parking space for the City and 280 parking spaces for the Hotel (subject to Section 4.1 of this Agreement), all located in the Hotel Deck, and 8 on-street parking spaces, next to the area shown as Parcel "G"on Exhibit"A", for the residents who own dwellings on said Parcel "G". The use of 100 Dedicated Parking Spaces in the Hotel Deck which are not required for use in connection with a convention at the Hotel for the next week will be potentially made available by the Hotel, for possible use by or for the benefit of the City or the GreenJackets during an event at the Ballpark or which is sponsored by the City. With the exception of Hotel and Residents Dedicated Spaces, the parties agree to coordinate hours and uses of the remaining Dedicated Spaces for possible use for other purposes, in whole or in part, for parking demands. The other parking spaces shown for individual Parking Facilities on Exhibit"B"must be made available for the users and purposes described therein, on a reasonable basis, in the respective Parking Facilities whenever there is an event in the Stadium (whether it is a GreenJackets baseball game, a concert, or another activity where the general public or a discrete portion of the general public is permitted to attend),as further set forth in the Stadium. License Agreement."llesignated Office Parking Spaces" means that portion of the 2 30495623 Available Office Parking Spaces (shown as "Office" on Exhibit "B") which are designated by Master Developer for the exclusive use of the users of the Office Space, if any. "Developer" means, in respect of a Development Parcel, the owner of the fee simple interest in a Development Parcel.Notwithstanding the foregoing: (a) any Mortgagee shall not be deemed a Developer with respect to a Development Parcel encumbered by the Mortgage held by such Mortgagee unless such Mortgagee shall have excluded the mortgagor from possession by appropriate Iegal proceedings following a default under such Mortgage or shall have acquired the interest encumbered by such Mortgage through Foreclosure; (b) a tenant or lessee of space in a Development Parcel shall not be deemed a Developer; (c) if'a Development Parcel is owned under the condominium or cooperative form of ownership,the association of the condominium or the cooperative entity, as the case may be, shall be deemed the sole Developer; (d) any Person holding or owning any easements, rights-of-way or licenses that pertain to or affect any portion of a Development Parcel shall not be deemed the Developer solely by virtue of such easements,rights-of-way or licenses; and (e) if Developer consists of more than one Person (other than owners of individual condominium units or cooperative ownership interests), such Persons shall, within 30 days after the date of their acquisition of a Development Parcel, execute and deliver to the City and Master Developer a written instrument, including a power of attorney, appointing and authorizing one of such Persons comprising the Developer as their designated agent to receive all notices and demands to be given to the Developer pursuant to this Agreement and to take any and all actions required or permitted to be taken by the Developer under this Agreement. Until such instrument is executed and delivered,it shall be deemed that there is no Developer for the purposes of exercising any rights of the Developer under this Agreement. Such Persons comprising the Developer may change their designated agent by written notice to the City and Master Developer, but such change shall be effective only after actual receipt by the City and Master Developer of such written notice and a replacement instrument or instruments, including a power of attorney from all Persons comprising the Developer appointing and authorizing one of such Persons comprising the Developer to act as attorney-in-fact pursuant to such power of attorney. "Development Parcel" means a lot which is shown as a separate, lawfully created parcel on Exhibit"A". "Existing Third Parties" means the parties to the Third Party Agreements other than the City,together with their respective successors and assigns. 3 30495623 "Greenstone Entity"shall mean any entity or Person in which Master Developer, or any party related to or affiliated with Master Developer,has an ownership interest in, direct or indirect. "GreenJackets"shall mean GreenJackets Baseball, LLC, a minor league baseball franchise, and any assignee of or successor to the interests of the GreenJackets, under the Stadium License Agreement. "Hotel/Convention Center" shall mean that certain hotel and convention center to be constructed in Ballpark Village, on the Parcel labeled as Parcel "F"on Exhibit"A". "Hotel Deck" shall mean that certain parking deck, which contains 432 parking spaces, more or less, on the Parcel labeled as Parcel"E"on Exhibit"A". "Installment Purchase and Use Agreement" means that certain agreement by and between the City and NAPFC, to be dated on the date of delivery of the Bonds, which provides for, among other matters the terms, the transfer of title from NAPFC to the City of the parking Facilities, over time, based upon certain payments being made by the City to NAPFC or its assigns. "Master Developer" has the meaning given in the introductory paragraph of this Agreement, and includes any subsequent assignee of the Master Developer which assumes the rights and obligations of the Master Developer under the Master Development Agreement. "Master Development Agreement" has the meaning given in recital paragraph D. "Medac Deck" shall mean that certain parking deck which contains 601 parking spaces,more or less,on the Parcel labeled as "Medac Deck"on Exhibit"A". "Mortgage" means (a) any encumbrance of a Development Parcel as security for any indebtedness or other obligation of a Developer or its successors and assigns, whether by mortgage, deed of trust, sale/leaseback,pledge, financing statement, security agreement, or other security instrument, and (b) any encumbrance of a Parking Facility as security for any indebtedness or other obligation of the owner thereof or its successors and assigns, whether by mortgage, deed of trust, sale/leaseback, pledge, financing statement, security agreement, or other security instrument. However, a mortgage or deed of trust for an individual condominium unit or cooperative ownership interest shall not constitute a Mortgage for the purposes of this Declaration. "Mortgagee" means the holder of any Mortgage and the indebtedness or other obligation secured thereby, whether the initial holder thereof or the heirs, legal representatives, successors, transferees and assigns of such initial holder. "Multi-Family Space" means any improvements constructed or developed in Ballpark Village as a residential development used by parties who rent space in such development for discrete periods of time (as opposed to, on one hand, fee simple title and ownership, and, on the other hand, transient, short-term use). Parcel "Al" on Exhibit "A" 4 30495623 (initially only a portion of the Parcel) will be used for such purpose. Parcel "J" on Exhibit"A" has an anticipated requirement for 53 on-street parking spaces paying a monthly fee to the City for non-weekday parking privileges via hang tag or applied sticker identification. "NAPFC"has the meaning given in recital paragraph A. "Office Space" means any improvements constructed or developed in Ballpark Village for the purpose of providing general or commercial office space. Initially a portion of the Parcel labeled as Parcel "C"on Exhibit"A"will be used for such purpose. "Operating Expenses" means all commercially reasonable out-of pocket costs and expenses paid or incurred by NAPFC,the City or Master Developer, as applicable (including such costs and expenses reimbursable by NAPFC,the City or Master Developer, as applicable to any operator(s) of the Parking Facilities) in connection with managing, operating, maintaining and repairing the component of the Parking Facilities which such Person owns, computed in accordance with generally accepted accounting principles applied on a consistent basis. Operating Expenses include, by way of illustration, but are not limited to: (a) costs of maintaining and repairing the Parking Facilities; (b) costs of insuring the Parking Facilities and all operations conducted therein with such policies, coverages and companies and in such limits as may be selected by the City, NAPFC or Master Developer, as applicable; (c) Taxes (except with respect to the City's Share of Operating Expenses); (d) costs of providing janitorial service to, and removing trash from, the Parking Facilities; (e) flood or storm cleanup costs; (f) costs for utility services furnished to the Parking Facilities; (g) costs for police details and other security services at the Parking Facilities; (h) costs of restriping the Parking Facilities; (i) costs of licenses, permits and inspection fees with respect to the Parking Facilities; (j) legal, accounting, inspection and consulting fees payable with respect to the Parking Facilities; (k) wages, salaries and benefits of personnel employed at or directly related to the Parking Facilities, to the extent reasonably allocable to the Parking Facilities; (1) the amount of any insurance deductibles paid in connection with an insured loss to the Parking Facilities; (m) fees and expenses paid to a third party management company to manage the Parking Facilities or any portion thereof, if applicable; and (n) costs of capital repairs and replacements made to the Parking Facilities, amortized over their expected useful life based upon and including a market rate of interest. However, notwithstanding the above, the following shall not be included in Operating Expenses: (i) the costs of designing and constructing the Parking Facilities; (ii) interest on debt or amortization payments on any mortgage/deed of trust, or rent on any ground lease or other underlying lease; (iii) costs for which the City, NAPFC or Master Developer, as applicable, is reimbursed or has a right to reimbursement (either by an insurer, condemnor, or other person or entity); (iv)costs for which the City, NAPFC or Master Developer, as applicable, is reimbursed or has a right to reimbursement under warranties provided to the City, NAPFC or Master Developer, as applicable, by contractors who have warranty obligations; (v) costs for which the City, NAPFC or Master Developer, as applicable, is reimbursed or has a right to reimbursement pursuant to any of the Third Party Agreements; (vi) expenses which are billed directly to any user of the Parking Facilities; (vii) the City's, NAPFC's or Master Developer's (as applicable), general overhead and administrative expenses; (viii) depreciation of the Parking Facilities; (ix) incremental costs attributable to the operation of the Parking Facilities as a public 5 304Q5623 parking facility, including, without limitation, gate attendant and security costs associated with public access, that would not reasonably be incurred if the Parking Facilities were operated as a private parking facility; (x)costs and expenses which are attributable to the Third Party Rights or to the use of the Parking Facilities for parking for special events; (xi) mark-ups of any kind on any Operating Expenses; (xii) costs (including attorneys' fees and costs) related to any sale, financing or refinancing of the Parking Facilities or incurred in connection with negotiations or disputes with purchasers, prospective purchasers, lenders and prospective lenders; (xiii) capital expenditures, except to the extent of the amortized portion of costs of capital repairs and replacements included pursuant to clause (n) above; (xiv) federal and state taxes on income, death, estate or inheritance; or franchise taxes; (xv) costs to bring the Parking Facilities into full compliance with all federal, state or local legal requirements, including the federal Americans with Disabilities Act; (xvi) costs (including attorneys' fees and costs) of enforcing any Third Party Agreements or incurred in connection with negotiations or disputes with Developers or prospective Developers; (xvii) the cost of curing any construction defects in the Parking Facilities; (xviii) insurance deductibles that exceed commercially reasonable deductibles; (xix) costs incurred due to the uninsured negligence or willful misconduct of the City, NAPFC or Master Developer, as applicable, or the violation by the City, NAPFC or Master Developer, as applicable, of any applicable legal requirements; (xx) costs of renting equipment for which the purchase cost(including any amortized portion of the purchase cost), if purchased, would not be included in Operating Expenses; and (xxi) costs paid or incurred in connection with any hazardous materials or hazardous substances present on or otherwise affecting the Parking Facilities as of the date of the completion of the subject portion of the Parking Facilities, including the costs any investigation or remediation thereof. "Parking Facilities" means, collectively, the Medac Deck, the Hotel Deck and the Stadium Deck. "Parking Facility" means an individual one of such Parking Facilities, as the context suggests. "Parking Rate Terms"means the rates and charges and terms set forth in Exhibit "B", which shall set forth applicable charges and potential periods of use initially for the Parking Facilities, and for other on-street parking in Ballpark Village, unless and until such terms are otherwise agreed to by the City and Master Developer, which Parties shall, on a reasonable basis, review such terms to determine whether any of them, as agreed upon by both Parties, should be adjusted or modified. "Party"means each of Master Developer and each Developer, as this Agreement relates to the Development Parcel owned by such Developer, the City and NAPFC. "Parties" means all of Master Developer and each Developer, as this Agreement relates to the Development Parcel owned by such Developer, unless the context indicates otherwise. "Person" means any individual, sole proprietorship, partnership, joint venture, limited liability company, corporation, joint stock company, trust, unincorporated association, institution,entity or governmental authority. 6 30495623 "Phase" means the Office Space, Retail/Restaurant Space, Multi-Family Space, or any other Development Parcel in Ballpark Village where Master Developer or a Greenstone Entity is the initial owner/developer. "Residential Space" means any improvements which are contracted for, developed or owned in Ballpark Village as a residential use, as part of Parcels D, G, H, or I. These occupants of Residential Space will have the right to pay a monthly fee to (and as established by) the City for non-weekday parking privileges via hang tag or applied sticker identification, if such parking capacity is available. "Retail/Restaurant Space" means any improvements constructed or developed in. Ballpark Village for the purpose of providing space for parties selling goods, materials, products or services from the location (or by readily accessible inventory) to the general public or distinct portions of the general public, or places offering meals, beverages and/or entertainment or a dining experience, for all or only certain meals during the day, for the general public or distinct portions of the general public. Initially a portion of the Parcels labeled as « " Parcels "A", "A2", "C", "D" ,"F", "0", and "01" on Exhibit "A" will be used for such purpose (with such Parcels also potentially having or offering other uses). "Short-Term Parking"means parking for not longer than three hours. "Short-Term Parking Spaces"has the meaning given in Section 4.3(a). "Square Feet" means: (a) with respect to the Office Space, square feet of rentable area according to the Standard Method for Measuring Floor Area in Office Buildings, ANSI/BOMA 7,65.1-2006; and (b) with respect to Retail/Restaurant Space, square feet of interior floor area designed for tenant occupancy and exclusive use, including"selling"basement space (but excluding "non-selling" basement space), "selling" mezzanine space (but excluding "non-selling" mezzanine space), and "selling" upper floor space (but excluding "non-selling" upper floor space), and excluding outdoor patio/sidewalk space ("selling" space referring to space used for the sale of goods or merchandise directly to customers, for the rendering of services directly to customers, and for any other intended use directly by customers; and "non- selling"space referring to space not intended for such uses, such as storage space). "Stadium" means the venue used by, among others, the GreenJackets under the Stadium License Agreement. "Stadium Deck" shall mean that certain parking deck which will contain, upon its completion, 572 parking spaces, more or less, on the Parcel labeled as Parcel "B" on Exhibit «A» "Stadium License Agreement" means that certain Stadium License Agreement, dated February 22, 2017, as amended from time to time, by and between the City and GreenJackets Baseball Club, LLC, under which certain parking rights are to be provided by the City, to and for the benefit of said GreenJackets. 7 30495623 "Taxes" means all real estate taxes, service payments in lieu of taxes, and assessments payable with respect to the Parking Facilities, including the land on which the Parking Facilities are located. "Third Party Agreements" means the agreements by the City with or for the benefit of third parties affecting the use of any portion of the Parking Facilities, as may be entered into from time to time by the City and such third parties. "Third Party Rights" means, collectively, the rights of Existing Third Parties under the Third Party Agreements, as the Third Party Agreements may be modified in accordance with Section 3.1, and (b) the rights of any other third parties in the Parking Facilities granted by the City in accordance with Section 3.1. 2. Term. The term of this Agreement shall be 30 years commencing on the date of this Agreement, subject to the following provisions of this Section 2, with two consecutive renewal periods of 20 years, each,which renewals shall automatically be in force,subject only to a meeting by the Parties hereto prior to any such automatic renewal, to assess and discuss on a reasonable basis, the proper use of the Parking Facilities, with any necessary modifications to such use to be made at that time, so long as no party which has vested rights to Dedicated Parking Spaces or to any Parking Facility is divested of such rights. Thereafter, there shall only be renewal of this Agreement with the consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed, so long as the respective facilities for which parking is allocable hereunder are still in use for such purpose. The easements granted pursuant to this Agreement shall survive expiration of the term of this Agreement. This Agreement, and the easements granted pursuant to this Agreement, shall not independently obligate any party to construct any Parking Facilities or to reconstruct any Parking Facilities which, after construction, are destroyed by casualty or otherwise demolished, which obligations shall be governed by the Master Development Agreement and any other Third Party Agreements. 3. Use and Management of Parking Facilities Generally. 3.1 Use. The Parking Facilities shall be used as public parking facilities, generally for the benefit of Ballpark Village and the occupants therein and the users thereof, subject to Applicable Laws and the Third Party Rights and subject to the Parking Rate Terms, the rights of the City and the Master Developer under this Agreement, and the rights of the Developers under the easements granted pursuant to this Agreement. The City may modify the rights of Existing Third Parties under the Third Party Agreements with respect to the Hotel Deck, and grant rights to other third parties with respect to the Parking Facilities;provided that the City shall give written notice to Master Developer of any such modifications or new rights which are materials, and Master Developer shall have the right to consent to such material modifications or new rights, which consent shall not be unreasonably withheld; and provided, further, that the City shall not, other than with the prior written consent of Master Developer and NAPFC, which consent shall not be unreasonably withheld, modify the rights of Existing Third Parties under the Third Party Agreements, or grant rights to other third parties with respect to the Parking Facilities (including, without limitation, modifications or grants that would (a) materially increase the number of parking spaces in the Parking Facilities that the City must commit to Existing Third Parties and other third parties beyond the number presently required by the Third Party Agreements, or (b) materially increase the hours and/or frequency that the City must 8 30495623 commit parking spaces in the Parking Facilities to Existing Third Parties and other third parties beyond those presently required by the Third Party Agreements) in a manner that would(i)affect in any respect the Dedicated Parking Spaces, (ii) materially adversely affect the availability of parking spaces in the Parking Facilities for users of the Office Project, (iii) materially adversely affect any rights with respect to the Parking Facilities granted by the City to Master Developer as provided in Section 4, or (iv) materially adversely affect any easements granted by the City to a Developer in the Parking Facilities pursuant to Section 4. Additionally, the City and Master Developer acknowledge and agree that Master Developer shall only have rights to grant privileges to the Stadium Deck, and the City shall only have rights to grant privileges to the Medac Deck and the Hotel Deck. 3.2 Management. (a) Generally. The Parking Facilities shall be subject to the exclusive control and management of the Master Developer(as the agent of the City, as to the Medac Deck and the Hotel Deck, such agency to be established and described under a written agreement to be entered into by the City and Master Developer, after the date hereof, which will include, among other matters, a market parking management fee), subject to (i) Applicable Laws, (ii)the Third Party Rights, and (iii)the rights of Master Developer under this Agreement and the rights of any Developer under any easement granted pursuant to this Agreement. The Master Developer shall manage and operate, or cause to be managed and operated, the Parking Facilities in a manner consistent with the standards generally applicable to structured parking improvements located first class mixed use developments, and in a manner to best create utility and promote the success of Ballpark Village. The Master Developer's obligations with respect to the management and operation of the Parking Facilities include, but are not limited to, the maintenance and repair of the Parking Facilities, and Master Developer may in its sole discretion sub-contract out all or any of such functions or duties of Master Developer to manage said Parking Facilities, as described below, subject to the consent of the City, wh consent shall no, t be unreasonably withheld. The Master Developer may from time to time adopt and modify non-discriminatory rules and regulations governing the use of the Parking Facilitiesich ,and the City an y Developer and those using the Parking Facilities by virtue of the rights granted pursuant to this Agreement shall be bound by such rules and regulations so long as such rules and regulations are not inconsistent with this Agreement or any easement granted pursuant to this Agreement. The Master Developer reserves the right to modify and alter the Parking Facilities subject to the approval of such modifications and alterations by the City, which approval shall not be unreasonably withheld, subject to NAPFC's rights in the Medac Deck and Hotel Deck and the requirements of the Installment Purchase and Use Agreement. The scope of the City's review of any proposed modification or alteration of the Parking Facilities shall be limited to those matters within the scope of a Developer's review of the plans and specifications for the initial construction of Parking Facilities. (b) Fees. Without limiting the generality of Section 3.2(a), the fees to be charged for parking spaces in the Parking Facilities during times or for parking spaces which are not already allocated and designated in Exhibit.__`B", or are later allocated by Master Developer whether hourly, monthly or otherwise,shall be determined by the City from time to time (but only with notice to and the prior written consent of the Master Developer, which consent shall not be unreasonably withheld), but fees generated by any Parking Facility shall be 9 30495623 the revenue of and shall be, if collected by Master Developer,promptly delivered to the owner of that Parking Facility; and provided further, that the hourly rates shall be competitive with the hourly rates charged by comparable parking facilities in the area of the Parking Facilities. The "Public Parking Rate Terms" set forth on Exhibit "B" are subject to review and modification at any time, upon the consent of the City and Master Developer and, in any event, the City and Master Developer must meet on a biennial basis, to discuss and potentially adjust the "Public Parking Rate Terms." Master Developer shall establish monthly rates for the use of the Parking Facilities (other than the Short-Term Parking Spaces) from time to time, which shall be competitive with the monthly rates charged by comparable parking facilities in the area of the Parking Facilities. (c) Validation System. The City shall work with Master Developer and Developers of Retail/Restaurant Space and Office Space in good faith to establish a validation system for parking in the Parking Facilities by visitors to Retail/Restaurant Space and Office Space, under which the occupant of the Retail/Restaurant Space or Office Space would pay all of a portion of the parking fees charged for such visitors. (d) Card Readers. The City shall work with Master Developer and Developers of Office Space in good faith in connection with the establishment by Master Developer of a compatible card reader system or similar access and use system to permit controlled and monitored access to the Parking Facilities by monthly parkers. (e) Third Party Management. Master Developer may, at Master Developer's option and in Master Developer's sole discretion, engage a third party management company or absolutely assign to another party its agency as manager, to manage and operate the Parking Facilities or any portion thereof, which management arrangement may be accomplished through a management agreement, an operating license, a lease, an assignment and assumption of rights, or another document agreed to by the Master Developer and the third party management company; provided that such management agreement, lease, license, assignment and assumption or other document shall be subject and subordinate in all respects to this Agreement. 4. Special Rights of Developer. Master Developer and the Developers shall have special rights with respect to the Parking Facilities as provided below in this Section 4. 4.1 Potential Additional Dedicated Parking Spaces. (a) Generally. Master Developer may at any point create additional Dedicated Parking Spaces to and among the Development Parcels containing Multi-Family Space, Retail/Restaurant Space and Office Space, in a manner that does not in any way interfere with or disrupt the rights granted and set forth on Exhibit"B". Also, at any time that the Party that owns the Hotel/Convention Center does not have a convention scheduled or has a convention scheduled for the Hotel/Convention Center that will require less than 100 parking spaces, the party that owns the Hotel/Convention Center (i) shall release 100 Dedicated Parking Spaces if there is no convention scheduled, or (ii) shall release the number of excess parking spaces not needed for the scheduled conference (depending on the size of the convention in question) in the Hotel Deck, with the exact location of such Dedicated Parking Spaces within the Hotel Deck to be agreed upon by City, Master Developer and the Party that owns the 10 30495623 Hotel/Convention Center, in their respective, reasonable judgment. If Dedicated Parking Spaces are created by Master Developer for any Multi-Family Space, which Master Developer may do in Master Developer's reasonable discretion, each Developer shall have the exclusive right to the use of the Dedicated Parking Spaces allocated by Master Developer to such Developer's Development Parcel for users of Multi-Family Space within such Development Parcel, and each such Developer may designate such allocated Dedicated Parking Spaces as reserved for particular users of Multi-Family Space within such Development Parcel. The Dedicated Parking Spaces may be separately designated from the Parking Facilities as reasonably necessary to prevent access to the Dedicated Parking Spaces by the general public. However, access to the Dedicated Parking Spaces may be through other portions of the Parking Facilities, and each Parking Facility shall be a single integrated parking facility. (b) Reduction of Dedicated Parking Spaces in a Parking Facility. The number of Dedicated Parking Spaces shown on Exhibit "B" (including those not available on a 24/7 basis, but rather to users as those users are engaged at Ballpark Village), is based on assumptions, as set forth in the Master Development Agreement, as to the property which is to be developed within the Development Parcels. If the number of Dedicated Parking Spaces in any such Parking Facility is reduced by Master Developer below the number indicated in this Agreement, then the City, Master Developer and the applicable Developer(s), if any, shall enter into a supplement to this Agreement, in recordable form, amending Exhibit "B" hereto accordingly; provided, however, that no such supplement shall violate the terms of the Stadium License Agreement. (c) Parking Charges.Each Developer shall pay the Developer's share of Operating Expenses to the City, as to the Hotel Deck and the Medac Deck, and Master DeveIoper, as to the Stadium Deck, with respect to the Dedicated Parking Spaces allocated to the applicable Development Parcel owned by such Developer,in accordance with Section 5. 4.2 Available Office Parking Spaces. (a) Generally. The Parties shall make available the required number of Available Office Parking Spaces, including the Designated Office Parking Spaces,for users of Office Space, subject only to any inconsistent Third Party Rights and to interruption by casualty and force majeure events. Those of the Available Office Parking Spaces which are Designated Office Parking Spaces shall be available to users of Office Space on a designated (reserved) basis for monthly parking, and shall be in locations designated by Master Developer in the vicinity of the subject Office Space, but the rights of such users of Office Space to Designated Office Parking Spaces shall be subject to any existing Third Party Rights. Those of the Available Office Parking Spaces which are not Designated Office Parking Spaces shall be available to users of Office Space on an undesignated (unreserved) basis for monthly parking, subject to any existing Third Party Rights. The rights of Master DeveIoper under this Section 4.2(a) shall be subject to Sections 4.5 and 4.6. At the request of the City or Master Developer from time to time, the City and Master Developer shall confirm in writing the Square Feet of Office Space within the office project in question. (b) Parking Charges. Users of the Available Office Parking Spaces shall pay the monthly rates established by the City from time to time pursuant to Section 3.2(b). 11 30495623 4.3 Short-Term Parking. (a) Generally. The City shall, subject to any existing Third Party Rights and to interruption by casualty and force majeure events, designate for Short-Term Parking such number of parking spaces within the Parking Facilities which, taking into account the on-street metered parking within or adjacent to Ballpark Village and public transit use, are reasonably sufficient to accommodate the demand from time to time for Short-Term Parking by customers of the Retail/Restaurant Space (such parking spaces being called the "Short-Term Parking Spaces"), provided that in no event shall the City be required to designate a number of Short-Term Parking Spaces greater than (i) three (10) per 1,000 Square Feet of Retail/Restaurant Space, less (ii)the number of on-street metered parking spaces within Ballpark Village. The City may, in its reasonable discretion, but only with prior notice to and consultation with and the written consent of the Master Developer, change the number of Short-Term Parking Spaces from time to time based on changes in the amount of Retail/Restaurant Space and the demand for Short-Term Parking in the Parking Facilities. The Short-Term Parking Spaces shall be in locations reasonably convenient to Retail/Restaurant Space. Subject to the requirement that the Short-Term Parking Spaces be in locations reasonably convenient to the Retail/Restaurant Space, the Short-Term Parking Spaces may be located at various places in the Parking Facilities, and the City may change the locations of the Short-Term Parking Spaces from time to time, so long as the rights that parties have as set forth in Exhibit "B" are not impacted in any material manner. The Short-Term Parking Spaces shall be available to the public for Short-Term Parking, including but not limited to Short-Term Parking by customers of the Retail/Restaurant Space, and the City shall not intentionally sell the Short-Term Parking Spaces on a monthly or daily basis or otherwise intentionally sell the Short-Term Parking Spaces other than for Short-Term Parking. The above provisions of this Section 4.3(a) shall be subject to Sections 4.5 and 4.6. At the request of the City or Master Developer from time to time, the City and Master Developer shall confirm in writing the Square Feet of Retail/Restaurant Space within the Phase and the number of Short-Term Parking Spaces (subject to adjustment pursuant to this Section 4.3(a)) on the basis thereof. (b) Parking Charges. Users of the Short-Term Parking Spaces shall pay the hourly charges established by the City from time to time pursuant to Section 3.2(b). 4.4 Valet Parking. (a) Generall . If requested by the operator of any restaurant within the Office Project, the City shall make a reasonable number of parking spaces within the Parking Facilities available to such restaurant operator for valet parking. If the Parking Facilities contain sufficient parking spaces in excess of the Available Office Parking Spaces and the Short- Term Parking Spaces that, in the City's reasonable judgment taking into account other demands on the Parking Facilities, it is not necessary to use the Short-Term Parking Spaces for the valet parking, the City will designate parking spaces in the Parking Facilities other than Short-Term Parking Spaces for valet parking. Otherwise, the valet parking will be within the Short-Term Parking Spaces. The above provisions of this Section 4.4(a) shall be subject to Sections 4.5 and 4.6. (b) Parking Charges. Users of valet parking spaces shall pay the hourly charges established by the City from time to time pursuant to Section 3.2(b). 12 30495623 4.5 Conflicts with GreenJackets Baseball. Subject to the terms of this Section 4.5, Master Developer and the City recognize and agree that, pursuant to the Stadium License Agreement, Master Developer and the City will set aside certain portions of the Stadium Deck (but not any Dedicated Parking Spaces) for the GreenJackets for parking for GreenJackets home games and other events held at or within the Stadium, and that, during periods that such portions of the Parking Facilities are set aside for the GreenJackets in accordance with the Stadium License Agreement, the parking spaces within such portions of the Parking Facilities will be unavailable for use by users of Office Space, for Short-Term Parking or for valet parking. Without limiting the generality of the immediately preceding sentence, Master Developer recognizes that, on days on which the GreenJackets have daytime home games, the parking spaces within portions of the Parking Facilities set aside for the GreenJackets will be unavailable during daytime hours for use by users of Office Space, for Short-Term Parking or for valet parking. During periods that portions of the Parking Facilities are set aside for the GreenJackets pursuant to the Stadium License Agreement, including but not limited to all daytime hours on weekdays on which the GreenJackets have daytime games, the Available Office Parking Spaces, including the Designated Office Parking Spaces, shall be limited to those portions of the Parking Facilities outside of the portions set aside for the GreenJackets, on an undesignated(unreserved) basis. If,on weekdays on which the GreenJackets have daytime home games, there are not sufficient available parking spaces in the Parking Facilities (outside of the portions set aside for the GreenJackets) to reasonably accommodate use of the Available Office Parking Spaces within the Parking Facilities for users of Office Space, the City will use commercially reasonable efforts, but without any guaranty or assurances of success in such efforts, to provide overflow parking within reasonable proximity to the Parking Facilities to address the shortage of Available Office Parking Spaces within the Parking Facilities. 4.6 Joinder. (a) General. On the date of execution of this Agreement, the Master Developer, the City and. NAPFC have entered into a Master Parking Facilities and Easement Agreement Joinder (the "NAPFC Parking Joinder Agreement"), pursuant to which the Corporation becomes subject to, and entitled to, the benefit of this Agreement, subject to the terms and conditions set forth therein. Upon the conveyance by the City to a Developer of any Development Parcel, the City, Master Developer and such Developer shall enter into a Joinder Agreement (a "Joinder Agreement"). Pursuant to each Joinder Agreement, (i) the subject Developer shall become subject to, and entitled to the benefit of, this Agreement with respect to the subject Development Parcel, shall assume the obligations of Master Developer under this Agreement with respect to the subject Development Parcel, and shall be substituted for Master Developer under this Agreement as this Agreement relates to the subject Development Parcel, and (ii) if the subject Development Parcel includes Multi-Family Space, Master Developer shall allocate to the subject Developer such of the Dedicated Parking Spaces, if any, as are to be allocated to such Development Parcel. (b) Easements for Dedicated Parking Spaces. Under each Joinder Agreement for a Development Parcel within which Multi-Family Space is to be constructed, the City shall grant to the Developer: (i) an exclusive, perpetual easement, for the benefit of such Development Parcel, to use the Dedicated Parking Spaces in the Parking Facilities(excluding the Ivledac Deck) constructed or to be constructed below such Development Parcel and which are I3 30495623 allocated to the Multi-Family Space in such Development Parcel pursuant to this Agreement,for parking by users of such Multi-Family Space; and (ii) a non-exclusive, perpetual easement, for the benefit of such Development Parcel, in, on, over and across portions of the Parking Facilities (excluding the Medac Deck) designed therefor for vehicular and pedestrian access to and from such Dedicated Parking Spaces by those entitled to use such Dedicated Parking Spaces. Such easements shall be subject to the terms and conditions set forth in Section 4.1 and other applicable provisions of this Agreement. (c) Easements for Available Office Parking Spaces. Under each Developer Joinder Agreement for a Development Parcel within which Office Space is to be developed, the City shall grant to the Developer: (i) a non-exclusive,perpetual easement, for the benefit of such Development Parcel, to use Designated Office Parking Spaces for parking by users of Office Space to be constructed on such Development Parcel; (ii) a non-exclusive, perpetual easement, for the benefit of such Development Parcel, to use Available Office Parking Spaces, other than Designated Office Parking Spaces,for parking by users of Office Space to be constructed on such Development Parcel; and (iii) a non-exclusive, perpetual easement, for the benefit of the Development Parcel, in, on, over and across portions of the Parking Facilities designed therefor for vehicular and pedestrian access to and from such Available Office Parking Spaces (including Designated Office Parking Spaces) by those entitled to use such Available Office Parking Spaces. Such easements shall be subject to the terms and conditions set forth in Sections 4.2, 4.5 and 4.6 and other applicable provisions of this Agreement. (d) Easements for Short-Term Parking. Under each Developer Joinder Agreement for a Development Parcel within which Retail/Restaurant Space is to be developed, the City shall grant to the Developer: (i) a non-exclusive,perpetual easement, for the benefit of such Development Parcel, to use the Short-Term Parking Spaces for Short-Term Parking; and (ii) a non-exclusive, perpetual easement, for the benefit of such Development Parcel, in, on, over and across portions of the Parking Facilities designed therefor for vehicular and pedestrian access to and from the Short-Term Parking Spaces by those entitled to use the Short-Term Parking Spaces. Such easements shall be subject to the terms and conditions set forth in Sections 4.3, 4.5 and 4.6 and other applicable provisions of this Agreement. 4.7 Applicable Laws. The City represents to Master Developer that the Applicable Laws are not inconsistent with the rights granted to Master Developer and Developers under the above provisions of this Section 4. The City will, upon written request of Master Developer, consider taking action to create and/or modify any Applicable Laws within the control of the City, to the extent such create interference with or an impediment to the intended uses contemplated in this Agreement, but the City shall be under no obligation to take any such action. 5. Developer's Share of Operating Expenses. Each Developer of a Development Parcel in which Multi-Family Space, or Retail/Restaurant Space, respectively, is located and to which any Dedicated Parking Spaces are allocated shall be responsible for the Developer's applicable share of Operating Expenses allocated to such Dedicated Parking Spaces in accordance with the following provisions of this Section 5. 5.1 Annual Statements. With reasonable promptness after the end of each calendar year during the term of this Agreement, Master Developer shall submit to the City and 14 30495623 any applicable Developer a statement of the Operating Expenses,and the City's and Developer's share of Operating Expenses, for such year, setting forth in reasonable detail an accounting of the Operating Expenses for the year. Shares of Operating Expenses for the Parking Facilities shall be determined on a reasonable basis by Master Developer, based upon the periods any Party has exclusive rights, or as applicable, shared rights, to use portions of the Parking Facility for which such allocation of Operating Expenses is being made. What the exact allocations were and how those allocations were determined by Master Developer shall be a part of the statement of Operating Expenses provided by Master Developer. Within 30 days after submission of such statement, such Developer and the City, as applicable, shall pay to Master Developer its respective share of Operating Expenses for such year according to the statement;provided that if Master Developer has exercised its right to require monthly payments in respect of such share of Operating Expenses as provided in Section 5.2, then, within 30 days after submission of such annual statement, the payments by such Developer or the City to Master Developer in respect of its respective share of Operating Expenses for the year shall be reconciled, and payments or refunds made,on the basis of the annual statement. 5.2 Monthly Payments. At the option of Master Developer, Master Developer may require such Developer and the City to pay its share of Operating Expenses to Master Developer on a monthly basis as provided in this Section 5.2. Such monthly payments, if required by Master Developer, shall, at the election of Master Developer, either be (a) based on monthly statements of Operating Expenses and the Developer's and City's Share of Operating Expenses to be submitted by the Master Developer to such Developer or City after the end of each calendar month, setting forth in reasonable detail an accounting of the Operating Expenses for the month, in which case such statements shall be due 30 days after submission, or(b)based on the Master Developer's good faith estimate of Operating Expenses and the City's and the Developer's Share of Operating Expenses for the year, in which case such Developer and the City shall pay 1112th of its estimated City's and Developer's Share of Operating Expenses for the year on the first day of each month during the year. 5.3 Adjustment for Taxes. If portions of the Parking Facilities other than the Dedicated Parking Spaces receive exemptions from or abatements of Taxes that are not available for the Dedicated Parking Spaces, then, for purposes of determining the Developer's or City's Share of Operating Expenses for all Developers, the Taxes shall be equitably adjusted in order that such Developer's Share of Operating Expenses include all Taxes, if any, assessed with respect to the Dedicated Parking Spaces allocated to such Developer. 5.4 Audit Rights. Each Developer required to pay its Developer's share of Operating Expenses and the City shall have the right from time to time, on a reasonable basis, to audit the books and records of Master Developer, and of any third party management company, relating to the operation of the Parking Facilities. Such audit shall be carried out only by such Developer and the City or by an independent firm of certified public accountants engaged by them, and shall be subject to Master Developer's and any third party management company's reasonable audit procedures. No party conducting such an audit shall be compensated on a contingency or other incentive basis. If any such audit establishes that Master Developer has misstated the Operating Expenses, corrective entries shall be made on the basis of such audit, and a reconciling payment shall be made promptly by Master Developer to such Developer or the City, or by such Developer to the City, as applicable. The cost of any audit perfoiuled 15 30495623 pursuant to this Section 5.4 shall be borne by such Developer or the City, unless the audit establishes an overstatement of Operating Expenses by more than 3%, in which event Master Developer shall reimburse such Developer or the City for the reasonable cost of the audit. 6. Default and Remedies. 6.1 Default Notices. At any time as of which there exists a default by Master Developer in the due and punctual payment, performance or observance of any obligation of Master Developer under this Agreement, the City may give Master Developer a written notice, indicated as being a "Default Notice" under this Section 6.1, identifying such default and specifying a period of time reasonable under the circumstances for the cure of such default; provided that if the City has received written notice of the name and address of a Mortgagee of any Development Parcel and/or the improvements thereto, then the City shall also give a copy of such notice to such Mortgagee. At any time as of which there exists a default by the City in the due and punctual payment, performance or observance of any obligation of the City under this Agreement, Master Developer may give the City a written notice, indicated as being a "Default Notice" under this Section 6.1, identifying such default and specifying a period of time reasonable under the circumstances for the cure of such default; provided that if Master Developer has received written notice of the name and address of a Mortgagee of any applicable Parking Facility and/or the improvements thereto, then Master Developer shall also give a copy of such notice to such Mortgagee. Any notice given in accordance with this Section 6.1 is called a"Default Notice." The period of time for cure to be set forth in any Default Notice shall be not shorter than such period of time as is reasonable in light of the nature of the default and the time reasonably required to cure the default. 6.2 Enforcement. Each Party shall have the right to enforce this Agreement in any manner provided by law or equity;provided that neither the City nor Master Developer shall have any right to terminate this Agreement or any right or easement granted pursuant to this Agreement by reason of any default by or through Master Developer or any Developer, or the City. As the remedy at law for the breach of any of the terms of this Agreement may be inadequate, each enforcing Party shall have a right of temporary and permanent injunction, specific performance and other equitable relief that may be granted in any proceeding brought to enforce any provision hereof, without the necessity of proof of actual damage or inadequacy of any legal remedy. Default under any of the terms of this Agreement which is not cured within the reasonable cure period as specified in the applicable Default Notice shall give a non-defaulting Party a right of action in any court of competent jurisdiction to compel compliance and/or to prevent the default, and the expenses of such litigation shall be borne by the defaulting Party, provided such proceeding confirms the alleged default. Expenses of litigation shall include reasonable attorneys' fees and expenses incurred by the non-defaulting Party in enforcing this Agreement. The above provisions of this Section 6.2 shall be subject to the dispute resolution provisions set forth in Section 7. 6.3 Self-Help. Without limiting the provisions of Section 6.2, (a) should any defaulting Party fail to remedy any default identified in a Default Notice within the reasonable cure period specified in such Default Notice, or (b) should any default under this Agreement exist which (i) constitutes or creates an immediate threat to health or safety, (ii) constitutes or creates an immediate threat of damage to or destruction of property or (iii) is of the same nature as defaults or violations with respect to which two or more Default Notices have been given 16 30495623 within the immediately preceding 24 months, then, in any such event, the non-defaulting Party shall have the right, but not the obligation, to take such steps as such non-defaulting Party may elect to cure, or cause to be cured, such default or violation. If a non-defaulting Party cures, or causes to be cured, a default as provided above in this Section 6.3, then there shall be due and payable by the defaulting Party to the non-defaulting Party upon demand the amount of the reasonable costs and expenses incurred by the non-defaulting Party in pursuing such cure, plus interest thereon from the date of demand at the rate of 15%per annum,payable on a daily. 7. Restoration and/or Replacement of Damaged Parking Facilities. The Parties recognize that access to and the use of all of the Parking Facilities are necessary for the proper operation, use and enjoyment of Ballpark Village, and the tenants therein and users thereof. Therefore, if there is at any time an event or circumstance which impairs the use of all or a portion of any of the Parking Facilities, other than a de minimus amount, all of the Parties shall, on a prompt and reasonable basis, work together to (i) allocate or reallocate parking privileges and rights to the Parking Facilities under this Agreement on a temporary basis, until the restoration of the Parking Facility in question is accomplished, to best facilitate the continued operation and use of Ballpark Village, and (ii) ensure the prompt restoration and/or replacement of the Parking Facility which is suffering an impaired use (but nothing contained herein shall create or imply that there is an obligation or duty of one party hereto to pay for or contribute to the restoration or replacement of a Parking Facility in which such Party does not have an ownership interest). The Parties shall cause such insurance or other facilities to be in place to provide on a reasonable basis a source of funds for any such restoration and/or replacement. 8. Estoppel Certificates. Each Party (a "Responding Party") shall, from time to time, within ten business days after written request by another Party (a "Requesting Party"), execute and deliver to the Requesting Party and/or such third party designated by the Requesting Party, a statement in writing certifying (a) that (except as may be otherwise specified by the Responding Party) (i) this Agreement is in full force and effect and unmodified, (ii) the Responding Party is not in default in the performance or observance of its obligations under this Agreement, and (iii) to the Responding Party's actual knowledge, the Requesting Party is not in default in the performance or observance of the Requesting Party's obligations under this Agreement, and (b) as to such other factual matters as the Requesting Party may reasonably request about this Agreement, the status of any matter relevant to this Agreement, or the performance or observance of the provisions of this Agreement. 9. Notices. Any notice to be given under this Agreement shall be in writing, shall be addressed to the Party to be notified at the address set forth below or at such other address as each Party may designate for itself from time to time by notice hereunder,and shall be deemed to have been given upon the earlier of (a) the next business day after delivery to a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement, satisfactory with such carrier, made for the payment of such fees, or (b) receipt of notice given by e-mail or personal delivery(provided that any e-mail received after 5:00 p.m.on any day shall be deemed to be received on the next business day): 17 30495623 If to the City: City of North Augusta, South Carolina Municipal Center 100 Georgia Avenue North Augusta, South Carolina 29841 Attn: Todd Glover TGlover @northaugusta.net With a copy to: Kelly Zier,Esq. 602 West Avenue North Augusta, SC 29841 kzier @zierlawfirm.com If to Master Developer: Greenstone Hammonds Ferry, LLC 3301 Windy Ridge Parkway—Suite 320 Atlanta,GA 30337 Attn: Chris Schoen and James Dean cschoen @greenstone-properties.com jdean @ greenstone-properties.com With a copy to: Mark Elliott,Esq. Bank of America Plaza, Suite 5200 600 Peachtree Road Atlanta, Georgia 30308 mark.elliott@troutmansanders.com 10. No Partnership_ This Agreement shall not be construed to create a partnership or joint venture between the Parties. 11. Governing Law_ The internal laws of the State of South Carolina shall govern as to the interpretation, validity and effect of this Agreement,without regard to such state's conflict of law principles. 12. Jurisdiction. The Parties submit to jurisdiction in the State of South Carolina and agree that any judicial proceeding brought by or against a Party with respect to this Agreement shall be brought in any state or federal court located in Aiken County, South Carolina, which shall have exclusive jurisdiction of controversies arising under this Agreement (subject to Section 7). 13. Severabilit . If any provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it is invalid or unenforceable, shall not be affected thereby, and shall be valid and enforceable to the fullest extent permitted by law, but only if and to the extent such enforcement would not materially and adversely frustrate the Parties' essential objectives as expressed herein. 18 30495623 14. Diligent Performance. With respect to any duty or obligation imposed on a Party by this Agreement, unless a time limit is specified for the performance of such duty or obligation, it shall be the duty or obligation of such Party to commence and perform the same in a diligent and workmanlike manner and to complete the performance of such duty or obligation as soon as reasonably practicable after commencement of performance. 15. Entirety of Agreement. This Agreement and each Joinder Agreement embody the entire agreement and understanding of the Parties with respect to the use and operation of the Parking Facilities, and supersede all prior agreements, correspondence, arrangements and understandings relating thereto other than the Third Party Agreements. This Agreement may be amended or modified only by a written instrument signed by the City and Master Developer; provided that no amendment or modification to this Agreement which materially adversely affects the rights of any Developer under a Joinder Agreement executed prior to such amendment or modification shall be binding on such Developer without its written consent thereto or approval or ratification thereof. 16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, successors in title and assigns (including but not limited to each Developer,as this Agreement relates to such Developer's Development Parcel), and shall run with the land;provided that the Master Developer or other Developer may only assign its rights hereunder in connection with a conveyance of the Developer's Development Parcel or otherwise only with the written consent of the City. 17. Captions. The captions in this Agreement are included for purposes of convenience only and shall not be considered a part of this Agreement or used in construing or interpreting any provision hereof. 18. Exhibits. All exhibits to this Agreement are incorporated herein by reference and made a part hereof,to the same extent as if set out in full herein. 19. No Waiver. No waiver of any condition or covenant of this Agreement to be satisfied or performed by a Party shall be deemed to imply or constitute a further waiver of the same or any like condition or covenant,and nothing contained in this Agreement nor any act of a Party, except a written waiver signed by such Party, shall be construed to be a waiver of any condition or covenant to be performed by the other Party. 20. Construction.No provisions of this Agreement shall be construed against a Party by reason of such Party having drafted such provisions. 21. Multiple Counterparts. This Agreement may be executed in multiple counterparts,each of which shall constitute an original document. 22. Third Party Beneficiaries. This Agreement may be enforced only by the Parties, their successors, successors in title and assigns, and Mortgagees. Except as set forth in the immediately preceding sentence, there shall be no third party beneficiaries of this Agreement. 23. Release from Liability. Each of the City, as owner of all or any portion of the Hotel Deck and the Medac Deck, and Developer, as owner of the Stadium Deck, and each 19 30495623 subsequent owner of an interest in all or any portion of any Parking Facility or any Development Parcel, shall be bound by this Agreement only during the period of its ownership of an interest therein, shall be liable only for the obligations, liabilities or responsibilities under this Agreement that accrue during such period with respect to such Parking Facility or Development Parcel, and, upon the conveyance or transfer (other than as security) of its interest therein, shall be released from any and all liabilities and obligations under this Agreement with respect to the Parking Facility (or portion thereof) accruing after the date the instrument of transfer is recorded in the Office of the Recorder of Aiken County, South Carolina.Nothing contained herein shall be or be construed as a guaranty from one Party to the other that any Party will construct the Parking Facilities. [EXECUTION ON FOLLOWING PAGE] 20 30495623 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. WITNESSES: CITY OF NORTH AUGUSTA, SOUTH CAROLINA 1 . By: - i B. Tod(tGl r, City Administrator STATE OF SOUTH CAROLINA ) COUNTY OF AIKEN ) I, the undersigned Notary Public for the State of South Carolina, do hereby certify that B. Todd Glover, the City Administrator of City of North Augusta, South Carolina, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and official seal this 94' day of / ;1 I , 2017. 'ice---' ~ (SEAL) Notary Public, State of South eakolinaj Notary Name Printed: Dory-A. [fir — YOI.J My Commission Expires: <-4-1/01 J 1 21 WITNESSES: GREENSTONE HAMMONDS FERRY, LLC, a South Carolina limited liability company r, T Name: Christian B. Schoen _ Title: Manager STATE OF Geor -to-- ) COUNTY OF Cobb ) I, the undersigned Notary Public for the State of 6e0 v" do hereby certify that Christian B. Schoen, the Manager of Greenstone Hammonds Fe , LLC, a South Carolina limited liability company, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and official seal this .4 day of A ! I , 2017. I -ID a (SEAL) Notary Publ al_tate of GGeor '*.-- Notary Name Printed: f * -P 1 o wl't c My Commission Expires: Fe b r u a r Pit r 201 41 f t [SIGNATURES CONTINUE ON NEXT PAGE] :• NOTARY •: My Comm.Expires =0; February+192019: �z © ••• PUBLIC i•o. 11 1 1%00 22 EXHIBIT"A" BALLPARK VILLAGE MASTER PLAN a.f '' l MEDAC ,„ ` C ` .',,, ,c t� z OFFiC£ CITY HALL # , C = MEDAL z i ma'; p ; Q 4. y , afir' . ' ' '"" ' ,".'•14 '...:, BRICK POD a " PARK p t i b 'a POTENTLAL it FUTti [s WEST'AVE qO,N `• ,4 ^'" ,' „, k-rr it s � 'gym'"y =Ua Sr w { a -"L` .` ." .,«.mh '- ' "2 . ' . r m' x 1[ `-”V, »w^s #, t.!€ K SE OR r # °.`:':1:1,!-:.*` - -. f` ur . RESIO€NTIA! se , ' a IsM CONFERENCE rte; 57EkDFUM ft7FFiCE/ f ; z RL7A It. r ,yy,s�."�#d� CLUBHOUSE i A Ak114�€N 's 't, a' * ' 2 n ,' . :',STADIUM I x€ �a x .4; ,,, , RESIDENCES .._,.,, ' a+ saw€ Z � .,[ss sw..� :. �" � ��.�„ Y RESIDENCES 7.; a a .„: ,'*+ d a� :.. .. a. , SAVANNAH RIVER A:,., `4 F , 30495623 EXHIBIT"B" PARKING SPACE ALLOCATIONS EIQ/IBFE B-PACKING SPACE ALLOCATIONS SJB/17 woman.DEMAND GAME EVENT T1Mw7x 24.7,771271%II t 2gtracstcA 1422711G7IS 9 a Dort NET �.Z ISSZ OGIte E.-276rmtlAs wasur.m. 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'""''> ''""C.a' E.anr-''''-.�a-z' *Smut taeu.^,*crf xxe�rar x u,17,22r P--71,1,C'£'1l.0.21W ipm norsg nanA7.281 =MIIIIIINIMIIIIIII . 11111 ---- MIN z4 �eaMod. 8 .A.At .,,i ,. ... �1� ..mat ,xmfaatatauamrfaoa 1.11.1EMININE1111.1.1 Mill .. I_. 1 9 _ ! 6D9 — f 7-90 Mil 11.11111. _.. ?SexvaREtA4T OEMAd6t 19at1B1XH'ci mrifExcm - .... EMa1Ks7,. l3aNiSGRF� fYam.FfAaS _ OFFICE WEEKDAY/N Yra CONFERENCE PARKING =rat iiaact Gt.=a fua"'-'46.'' anent n=! ptFaa[PEiE 7no,d CdT3.-um� BnsvamxrC OEi0.aAaD p_iliAE£c" SUMMARY mores xaiac xa 1MEDAC DEEKKAA1at 56cctb• —._.. 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EMI = 1.1111111111 111111111111111111.111111= MIMI ME 1111111111 a ltw,L vii�e PeI.ate striae/-^ !eC a6m9 11111111131111.111111111=111 1011111111.1111111M MININIONIN an= _ ,; PV&t V:;Paaw, PLiBIiGt+"CI$(A7{ F1aml aard'P swam ara suaic.t 1m rea1W"e mta to tiestaert ararN9nNaaatizta1n- 30495623 EXHIBIT B — PARKING SPACE ALLOCATIONS PUBLIC PARKING RATE TERMS BALLPARK VILLAGE—Initial Phase 5/8/17 Standard Parkin.Rates Parking Decks: Hourly—Decks 1St 2 hours @$2 +$1/hour; max$10/day; Monthly$50 non- reserved. >Project Startup Phase (@6 mo): charge only 6-IOpm and Event periods +/- 1 hour; 2 hour limit. Reserved—Monthly @$35. On-street parking: Non-reserved-$.50/30 minutes; Residents eligible for monthly tags for overnight parking. Office - Medac. Parcel Al.&Parcel C a. Staff—per lease terms;otherwise,standard rates. b. Guests—standard rates. Stadium a. Staff—standard rates; Medac deck if space available, per Medac Lease Employee Terms. b. Guest Parking(during Home Baseball Games and Licensee Special Events)— GreenJackets Games—general public$5 maximum game rate Concert/Special Event rate—$10 maximum rate [City Share: 1st 125 spaces $1; 2nd 125 spaces $2; additional spaces$3.] Retail/Restaurant Guests a. 2 hours free with vendor validation;Standard Daily Rate charges otherwise apply. b. Restaurant Valet(non-Event times)$2/space. RetaiURestaurant Staff Per lease terms; otherwise, standard rates;monthly spaces available. Hotel Guests (Hotel Deck) 180 space dedicated area. Daily Rate + $2(in/out privileges; $12 total);40%to City ConferenceiHotel Deck 100 space dedicated area, except when released during Stadium events; at Daily Rate ($10); 40% to City. Residential —Parcels Al, D. G. & G1 a. Standard rates—monthly spaces available for purchase annually or longer terms. b. On-Street Parcel G—8 dedicated spaces. 30495623