ARC 6282012 Parking Deck Agenda Items

Commission Meeting Agenda 6/28/2012 5:00 PM Approve agreements for Parking Decks
Department: Caption:
Administrator / Finance Motion to approve the Reynolds Street Parking Deck Construction, Operating and Reciprocal Easement Agreement, Reynolds Street Parking Deck Management Agreement, Conference Center Parking Lease and Assignment of Parking Deck Management Agreement, and to authorize the Mayor and Clerk of Commission to execute same. The approval of the Reynolds Street Parking Deck Construction, Operating and Reciprocal Easement Agreement, Reynolds Street Parking Deck Management Agreement and Conference Center Parking Lease were approved by the Commission on February 7, 2012. The approval of the Reynolds Street Parking Deck Construction, Operating and Reciprocal Easement Agreement, Reynolds Street Parking Deck Management Agreement and Conference Center Parking Lease were approved by the Commission on February 7, 2012, subject to a change in the term of the Management Agreement and the conveyance by 933 Broad, LLC of its surface rights beneath the parking deck to the Augusta, Georgia Land Bank Authority. 933 Broad, LLCs lender has requested slight modifications and for Augusta to consent to an Assignment of Parking Deck Management Agreement. Attached are copies of the Deed to Augusta, Deed to the Augusta, Georgia Land Bank Authority and the Quitclaim Deed and Partial Release that will be executed and recorded upon finalization of these documents No funding is necessary N/A Approve the execution of the documents
Cover Memo
Background:
Analysis:
Financial Impact: Alternatives: Recommendation: Funds are Available
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in the Following Accounts:
n/a
REVIEWED AND APPROVED BY: Finance. Law. Administrator. Clerk of Commission
Cover Memo
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Attachment number 1 \nPage 1
Seyfarth Shaw Revisions 5/4/12 Version 10
_____________________________________________________________________________________ Space above this line for recorders use REYNOLDS STREET PARKING DECK CONSTRUCTION, OPERATING AND RECIPROCAL EASEMENT AGREEMENT
THIS REYNOLDS STREET PARKING DECK CONSTRUCTION, OPERATING AND RECIPROCAL EASEMENT AGREEMENT (this Agreement) is made this ___ day of _________, 2012, by and between AUGUSTA, GEORGIA (City) and 933 BROAD INVESTMENT CO., LLC, a Georgia limited liability company (Developer). RECITALS A. Developer is the owner of that certain improved parcels of land described on Exhibit A attached hereto and by this reference made a part hereof, together with all improvements located thereon (the Developer Property). City is the owner of (i) that certain tract of land described on Exhibit B attached hereto and by this reference made a part hereof together with all improvements located thereon (the WAGT Tract); (ii) that certain tract of land described on Exhibit C attached hereto and by this reference made a part hereof, together with all improvements located thereon (the Jackson Tract); and (iii) that certain improved parcel of property described on Exhibit D attached hereto and by this reference made a part hereof, together with all improvements located thereon (the Air Rights Parcel and together with the WAGT Tract and the Jackson Tract, referred to as the City Property) . The Air Rights Parcel is generally the block of space occupied by the Parking Deck, extending vertically from the roof of the first floor of the Parking Deck to eight feet above the finished floor elevation of the six (6th) floor of the Parking Deck. City has constructed on the Air Rights Parcel and the portion of the Developer Property located directly underneath the Air Rights Parcel a six (6) story parking deck (the Parking Deck). The Developer Property contains additional surface parking (the Developer Surface Parking Areas) not located within the Parking Deck. In connection with transactions related to the Augusta Convention Center, but for no monetary consideration, Developer conveyed the Air Rights Parcel to City. Both before and after the construction of the Parking Deck, the general functionality and utility to Developer of the
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Developer Property are for surface parking for its tenants. The Parking Deck was constructed by City for the benefit of City, and the benefits of the Parking Deck to Developer are small and incidental (i.e., additional security, covered parking, and better aesthetics). Automated gates and a staffed toll booth are solely for the benefit of City in the management of its portion of the Parking Deck and provide only an incidental benefit to Developer. In connection with the Management Agreement, Developers affiliate has agreed to certain cost sharing and has agreed that City may use parking spaces located on the Developer Property without charge after business hours. Such agreements are part of a bargained for exchange made in connection with the Management Agreement but have no applicability outside of the Management Agreement. Accordingly, the Parties acknowledge that Developer should have no responsibility for maintaining the Parking Deck structure or sharing of costs for operation of the Parking Deck and should have no obligation to allow City to use the parking spaces located on Developer Property after hours, unless provision for the same is made in the Management Agreement. E. City and Developer desire to set forth their respective obligations and rights with respect to the Developer Property, the City Property, and the Parking Deck, including but not limited to those rights and obligations related to operation, maintenance, support, access, and insurance as set forth in this Agreement. AGREEMENT In consideration of the premises and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and Developer, intending to be legally bound, agree as follows. ARTICLE I DEFINITIONS Section 1.1. following meanings. Definitions. As used in this Agreement, the following terms shall have the
Access Easement Areas shall mean those areas located on the City Property and the Developer Property shown as cross-hatched on Exhibit E attached to this Agreement. Air Rights Parcel shall have the meaning set forth in the recitals of this Agreement. Agreement shall have the meaning set forth in the opening paragraph of this Agreement. City shall have the meaning set forth in the opening paragraph of this Agreement and its successors in title to the City Property. City Property shall have the meaning set forth in the recitals of this Agreement. Developer shall have the meaning set forth in the opening paragraph of this Agreement, and its successors in title to the Developer Property or any part thereof. Developer Property shall have the meaning set forth in the recitals of this Agreement.
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Developer Surface Parking Areas shall have the meaning set forth in the recitals of this Agreement. Ground Floor Ramp shall mean that ramp connecting the ground floor of the Parking Deck to the second floor of the Parking Deck and labeled as such on the schematic Plans and Specification attached as Exhibit H to this Agreement. The Ground Floor Ramp is also shown on the Plat of the Reynolds Street Parking Deck referenced on Exhibit A to this Agreement and is depicted as the area on the ramp where the parking spaces are portrayed with dashed lines. Jackson Tract shall have the meaning set forth in the recitals of this Agreement. Landscape Areas shall mean those areas located on the Developer Property upon which City has landscaped and shown as cross-hatched on Exhibit G attached to this Agreement. Manager shall mean any person or entity managing the City Property. Management Agreement shall mean the agreement whereby a Developer, its affiliate, or a third party manages the portion of the Parking Deck located on the City Property. Parking Deck shall have the meaning set forth in the recitals of this Agreement and shall include all structural portions thereof and the surfaces of the ground floor and all floors thereof. Party shall mean City or Developer individually, and Parties shall mean City and Developer collectively. Plans and Specifications shall mean the final plans and specification for the Parking Deck, full copies of which are on file with City and Developer. Schematics of the Plans and Specifications are attached as Exhibit H to this Agreement. In the event reconstruction is necessary and the original full Plans and Specifications cannot be located, the Parties shall work together in good faith to engage an engineering firm to produce a new set of Plans and Specifications for re-construction of the Parking Deck in a first-class manner, in compliance with all applicable building codes and standards, in substantial accordance with the schematic plans and specifications attached to this Agreement, whereupon such plans and specifications shall become the Plans and Specifications. Property or Properties shall mean the Developer Property and the City Property, combined. Security Deed shall mean, collectively, that Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement from Developer to Wachovia Bank, N.A. (n/k/a Wells Fargo Bank, National Association) recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia on October 14, 2005, in Book 1019, page 1326, and the related Assignments of Leases and Rents, all related UCC financing statements, and all amendments and modifications thereto. Standard shall mean the first-class standards of construction, operation, maintenance and repair of Marriott Corporation, reasonably interpreted to take into account differences between a hotel and a Parking Deck. Term of this Agreement shall mean the period of time commencing on the date of this Agreement and continuing in perpetuity for so long as the Parking Deck is in existence and shall include the period of time following any casualty with respect to the Parking Deck for so long as either Party has
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the right to rebuild the Parking Deck or the right to require the other Party or any person or entity to rebuild the Parking Deck. Traffic Control Areas shall mean those areas located on the Developer Property shown as cross-hatched on Exhibit F attached to this Agreement. WAGT Tract shall have the meaning set forth in the recitals of this Agreement. Wells Fargo shall mean Wells Fargo Bank, National Association, successor to Wachovia Bank, National Association, the holder of the Security Deed and the loans secured thereby.
ARTICLE II EASEMENTS Section 2.1. Access Easements. Developer hereby grants to City non-exclusive easements in perpetuity over the Access Easement Areas located on the Developer Property for vehicular and pedestrian ingress and egress to and from the public streets and sidewalks to the City Property. Developer retains the right to relocate or modify the Access Easement Areas existing on the Surface Parking Areas so long as such relocation or modification does not unreasonably hinder Citys access to the City Property and Parking Deck. City hereby grants to Developer non-exclusive easements in perpetuity over the Access Easement Areas located on the City Property for vehicular and pedestrian ingress and egress to and from the public streets and sidewalks to the Developer Property. City retains the right to relocate or modify the Access Easement Areas existing on the City Property so long as such relocation or modification does not unreasonably hinder Developers access to the Developer Property. Section 2.2. Landscaping Easements. Developer hereby grants to City non-exclusive easements in perpetuity over the Landscape Areas located on the Developer Property for the installation, use, replacement, and maintenance of grass, shrubs, flowers, trees, and other landscaping material, together with a non-exclusive easement in perpetuity over the driveways on the Developer Property for vehicular and pedestrian access to the Landscaping Areas. With the prior written approval of City, which shall not be unreasonably withheld or conditioned, Developer retains the right to relocate or modify the Landscape Areas in the modification or development of the Developer Property so long as such modification or development does not materially decrease the general aesthetics of the site. Section 2.3. Support and Utility Easements. The Parties acknowledge that the improvements on the Developer Property and the Air Rights Parcel share common footings and supports and that utility lines serving the Property may cross the City Property and the Developer Property. Each of the Parties hereby grants to the other Party a non-exclusive and perpetual easement over and under its respective Property for the construction, use, repair, and maintenance of supports and utility lines (electric, communication, water, sewer, storm water, and gas, to the extent now or hereafter desirable in connection the use of the respective Properties) in accordance with the Plans and Specifications, provided that the manner of construction, use, repair, and maintenance of such supports and utilities shall be in accordance with generally accepted engineering and construction practice for improvements of such type and so as not to impair the structural integrity of the other Partys improvements. The exercise of easement rights under this section by either Party shall be conducted in such a manner as will minimize interference with the conduct of business by the other Party. In the event either Party shall in the future desire to install additional utilities for the benefit of its Property and such installation impacts the other Partys Property,
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the Party desiring to install said utilities shall install the same at its sole cost with the advance written approval and cooperation of the other Party, such cooperation and approval not to be unreasonably withheld or delayed, and the requesting Party shall return all disturbed Property to its substantially predisturbed condition promptly in a first-class manner. Section 2.4. Easements in favor of City for Toll Booth and Traffic Control Equipment. Developer hereby grants to City non-exclusive easements in perpetuity over the Traffic Control Areas for occupancy, use, maintenance, and repair of a toll booth and traffic control equipment in order to control access to the Parking Deck. The use of the toll booth and traffic control equipment is subject to other provisions of this Agreement and the Management Agreement. Section 2.5. Easements in favor of Developer for Parking. City hereby grants to Developer an exclusive easement in perpetuity over the WAGT Tract for parking of passenger and commercial vehicles and a non-exclusive easement in perpetuity over the WAGT Tract for pedestrian and vehicular ingress and egress to and from the public streets and sidewalks to the Developer Property. Developer shall have the right to maintain, repair, and upgrade the WAGT Tract for the parking and access purposes set forth in this section. City acknowledges and agrees that its obligation to provide WAGT Television, Inc. with a permanent easement for parking pursuant to that Parking Easement Agreement dated November 15, 2010, and recorded with the Office of the Clerk of Superior Court for Augusta Richmond County, Georgia on May 18, 2011, in Book 1301, page 2188, shall be met by the use of parking spaces in the Parking Deck located on the City Property and not on the WAGT Tract or any Developer Property. Section 2.6. Easements in favor of Developer for Parking on Ground Floor Ramp. City and Developer intend that Developer have fee simple title to and exclusive use of the parking spaces located on the Ground Floor Ramp. Because City owns the structure of the Parking Deck and because a portion of the Ground Floor Ramp is situated above the earth and is considered part of the structure, City hereby grants to Developer an exclusive easement in perpetuity over any portion of the Ground Floor Ramp outside of the Access Easement Areas for parking of passenger and commercial vehicles. Because of the configuration of the Parking Deck, it is possible that a portion of the Ground Floor Ramp may extend into the Air Rights Parcel owned by City. Accordingly, City hereby grants to Developer an exclusive easement in perpetuity over any portion of the Ground Floor Ramp consisting of parking spaces and extending into the Air Rights Parcel for parking of passenger and commercial vehicles. City hereby grants to Developer a non-exclusive easement in perpetuity over the access drive located on Ground Floor Ramp for pedestrian and vehicular ingress and egress to and from the Developer Property and said parking spaces located on the Ground Floor Ramp. City hereby grants to Developer non-exclusive easements in perpetuity over all ramps and drives within the City Property necessary to allow ingress and egress to and from the parking spaces on the Ground Floor Ramp pursuant to the designed traffic flow patterns within the Parking Deck. Section 2.7. Binding Effect; Extension of Easements to Invitees. The Parties shall have the right to extend to their tenants, customers, business guests and invitees the benefit of the rights and easements established in this Agreement, but no such tenant, customer, business guest or invitee shall by virtue thereof be deemed to have acquired any interest whatsoever in the City Property or the Developer Property or any part thereof. The benefits and burdens of the easements and restrictions created in this Agreement shall run with the land and shall be binding upon and inure to the benefit of the owners of the City Property and the Developer Property (and all subdivided portions thereof) and their respective heirs, executors, successors-in-title, tenants, and assigns, and all those holding under any of them. The easements, restrictions and obligations contained in this Agreement shall be unaffected by any change in the ownership of any property covered by this Agreement or by any change of use, demolition,
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reconstruction, expansion or other circumstances, except as specified herein. Each of the rights created hereunder may be enforceable in a court of equity by the owner of any property covered by this Agreement or by Developer pursuant to retained rights and obligations under this Agreement in the event of a conveyance of all or any part of the Developer Property as contemplated in Section 6.10 below. All easements and other rights conveyed by City to Developer within this Agreement shall be for the benefit of the Developer Property. It is the express intent of the parties hereto that the easements granted herein shall not, at any time, merge by operation of law into any owners title or interest in any parcel, but that the easements granted herein shall remain separate and distinct rights and estates in land unless the owner(s) of all affected parcels specifically evidence their intent by mutual agreement in writing to extinguish any such easement. It is further expressly provided that the acquisition hereafter by any other party (including, without limitation, a present or future mortgagee of any parcel or any portion thereof) of an ownership interest (in fee, leasehold, or otherwise) shall not operate, by merger or otherwise, to extinguish, diminish, impair, or otherwise affect any easement granted herein, which easements shall remain separate and distinct and estates in land. Section 2.8. Perpetual Easements. The easements granted under this Section shall continue so long as the Parking Deck continues to exist or is rebuilt following a casualty. The Parties expressly acknowledge and agree that the purpose of this Agreement is the grant, conveyance and establishment of the easements, rights and privileges set forth herein, and none of the terms or provisions of this Agreement shall be or be deemed to be covenants restricting land to certain uses for purposes of O.C.G.A. 44-5-60, or any similar law or statute, and each Party (knowingly, willingly and upon the advice of legal counsel) expressly forever waives, releases and discharges any right that either Party now has or ever may have to claim or assert in any legal or other circumstances that any of the easements or other terms or provisions of this Agreement are in any way covered or limited by said section or any similar law or statute. Section 2.9. Reservation of Rights. Developer, as the owner of the Developer Property, hereby expressly reserves for itself, its successors and assigns, all rights and privileges incident to the ownership of the fee simple estate of the Developer Property which are not inconsistent with the rights and privileges herein granted. Specifically, Developer shall have the right to make non-structural alterations or modifications to the portion of the Parking Deck located on the Developer Property, including its faade (e.g., attaching signage, painting, or striping of the floor); provided, however, Developer shall not materially alter or modify the exterior of the Parking Deck without the prior written approval by City of the plans for such alteration or modification, which approval shall not be unreasonably withheld. Notwithstanding the preceding provision, Developer may develop the first floor of the Parking Deck into retail spaces without the approval of City, so long as the modifications do not materially impede traffic flow to the City Property or affect the structural integrity of the Parking Deck. In the event that Developers alterations or modifications to the Parking Deck cause damage to the Parking Deck, Developer shall be responsible to repair the same to the substantially pre-damaged condition. Furthermore, Developer retains the right to develop or modify the Developer Property (and to modify the location of the Access Easement Areas, the Traffic Control Areas, and the Landscape Areas), subject to the prior written approval of City, which approval shall not be withheld so long as such development or modification does not materially decrease the general aesthetics of the site, does not unreasonably hinder Citys access to the City Property and Parking Deck, and does not impair the structural integrity of the Parking Deck.
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ARTICLE III CONSTRUCTION AND TITLE
Section 3.1. Construction of the Parking Deck. Pursuant to prior agreements, City has constructed the Parking Deck in substantial accordance with the Plans and Specifications. The Parking Deck is acceptable to City and Developer in all respects. Section 3.2. City. Section 3.3. Expansion of the Parking Deck. Developer and City have agreed that City may expand the Parking Deck to the south of the existing Parking Deck (i.e., between the existing Parking Deck and Jones Street). In the event City so desires to expand the Parking Deck, Developer shall convey to City property necessary for expansion of the Parking Deck (or shall modify its easements under this Agreement with respect to the WAGT Tract) and shall amend this Agreement to provide for necessary support, access, operation and maintenance of the expanded parking deck, subject to the following conditions: (i) Developer shall retain title to the surface parking underneath of the expanded parking deck and shall only convey air rights in a similar manner to the rights existing under the current property ownership and this Agreement, (ii) the construction shall be of equal quality and aesthetics to the current Parking Deck, and the plans and specifications therefor shall be acceptable to Developer and any mortgagee, in their reasonable discretion, (iii) construction shall be made under the joint supervision of City and Developer in a manner similar to the management of construction of the existing Parking Deck (i.e., Developer shall have the right to inspect and review and object to draw requests prior to payment of the same), (iv) access to and functionality of Developers remaining property or easement rights shall not be unreasonably impaired, and agreements with respect to the expanded parking deck shall be substantially similar to the agreements in this Agreement, and (v) Developer shall retain sufficient property or easements, whether on the ground or upper levels of the expanded parking deck, so that Developer shall not suffer reduction in the number of parking spaces owned, or to which Developer has rights via easements, by Developer. Title to the Parking Deck. The structure of the Parking Deck shall be owned by
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ARTICLE IV OPERATION AND MAINTENANCE OF PARKING DECK
Section 4.1. Maintenance and Repair of the Property. City shall, at its sole cost and expense, repair, maintain, and clean the structure of the Parking Deck (including all parking surfaces located within the Parking Deck) and the Landscape Areas to the Standard. Otherwise, each Party shall, at its sole cost and expense, maintain its respective Property to the Standard. Notwithstanding the foregoing, during any period when both Developer and City consent to a different cost sharing arrangement pursuant to a Management Agreement, the maintenance and repair of the Parking Deck shall be made in accordance with the Management Agreement. Given that each Party has a significant investment in the Parking Deck and the property upon which the Parking Deck is located, the Parties acknowledge that each Party has an important interest in insuring that the Parking Deck is maintained in accordance with the Standard in perpetuity. Accordingly, this Agreement, and particularly this section of this Agreement, may be enforced by either Party by specific performance or otherwise. Section 4.2. Operation of Parking Deck. No barricades, curbs, gates, or other obstacles shall be erected which block or prohibit the free flow of traffic through the entrances, exits, ramps and driveways within the Property. However, City, in its sole discretion and for its benefit, may staff and operate a toll booth and/or automated traffic control devices in connection with the operation of its portion of the Parking Deck (either directly or through a Management Agreement). In the absence of a Management Agreement approved by Developer providing for a contrary agreement, Developer shall have no obligation to share in the costs of operating the Parking Deck, and Developer shall have the right to prohibit the unauthorized parking of vehicles on its Property, and the easement areas granted hereunder, and the WAGT Tract by all means allowed by law (including towing of unauthorized vehicles). In the event Developer or its affiliate manages the Parking Deck pursuant to a Management Agreement, the manager under the Management Agreement shall be responsible for all vehicle towing. In the event City elects to control access to the Parking Deck, City shall provide Developer with key cards or other acceptable devices to allow Developers tenants, licensees and invitees efficient access to the Developer Property, and the easement areas granted hereunder, and shall provide a reasonable and efficient method for Developers tenants, licensees and invitees to access the Developer Property, and the easement areas granted hereunder, through the toll booth system, all at no cost to Developer. Nothing herein shall prohibit temporary closing of the Parking Deck or Property as may be necessary for the cleaning, repair and maintenance of the same as required from time to time, so long as such activities are conducted at reasonable times and in a reasonable manner with prior coordination with the other Party. Each Party shall have the exclusive right to set or cause to be set the rents for use of the parking spaces within its respective Property. Each Party shall operate its respective improvements in compliance with the Standard and with all applicable governmental requirements, laws, statutes, regulations and/or ordinances and shall keep in full force and effect at all times all governmental permits and licenses required for the use and operation of such improvements. Section 4.3. Taxes. Developer shall be responsible for all ad-valorem taxes levied against the Developer Property. City shall be responsible for all ad-valorem taxes levied against the City Property. Section 4.4. Insurance by City. City shall either self-insure, self-fund or provide the following insurance meeting the following requirements:
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General Liability Insurance. During the Term of this Agreement, City shall, at its sole cost and expense, carry comprehensive general liability property insurance, including contractual liability, personal and bodily injury, and property damage insurance, covering activities relating to the Parking Deck, with a combined single limit in an amount sufficient to protect City and Developer, but in no event will such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. Such insurance may contain a loss deductible provision of not more than $100,000.00, which loss deductible amount may be adjusted upward annually by the percentage increase in the Consumer Price Index for all urban consumers (CPI-U) (All Items 1982-84=100) for the preceding calendar year. Developer and, if requested, Developers mortgage lender, shall be named as an additional insured under such insurance. City shall provide Developer with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of operation of the Parking Deck. Citys insurance shall contain a clause stating that there shall be no reduction, cancellation, or non-renewal of coverage without giving Developer and Developers mortgage lender thirty (30) days prior written notice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and not contributory to any similar insurance carried by Developer, and shall contain a severability of interest clause. Property Insurance. During the Term of this Agreement, City shall, at its sole cost and expense, procure and keep in effect fire and extended coverage for the Parking Deck and all personal property located thereon, including rent loss or business interruption coverage for periods of no less than twelve (12) months, written on an All-Risk Endorsement and Replacement Cost basis, in amounts at no time less than the total replacement cost therefor. Such policy referred to above shall name City and Developer as loss payee and additional insureds, as their interest may appear. During any period of construction, such property insurance shall be provided, at Citys sole cost and expense, through a builders risk policy. City shall provide Developer with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of the Term of this Agreement. Upon completion of construction, City shall provide Developer with such a certificate of permanent fire and extended property insurance. Section 4.5. Insurance by Developer. Developer shall either self-insure, self-fund or provide the following insurance meeting the following requirements: General Liability Insurance. During the Term of this Agreement, Developer shall, at its sole cost and expense, carry comprehensive general liability property insurance, including contractual liability, personal and bodily injury, and property damage insurance, covering activities relating to the Parking Deck, with a combined single limit in an amount sufficient to protect Developer and City, but in no event will such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. City shall be named as an additional insured under such insurance. Developer shall provide City with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of operation of the Parking Deck. Developers insurance shall contain a clause stating that there shall be no reduction, cancellation, or non-renewal of coverage without giving City thirty (30) days prior written notice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and not contributory to any similar insurance carried by City, and shall contain a severability of interest clause. Property Insurance. In recognition of the fact that the Parking Deck structure was built for the sole purpose of supporting and housing the upper decks for the benefit of City and that Developers interest in the Developer Property is merely a surface parking lot requiring no vertical improvements, Developer shall be under no obligation to insure any portion of the Parking Deck for casualty. Section 4.6. Policies and Endorsements. All insurance described in this Article may be obtained by endorsement or equivalent means under blanket insurance policies, provided that such
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blanket policies substantially fulfill the requirements specified herein. Where permitted, all insurance provided under this Article shall be carried in the name of Developer, City, the owner of any fee or leasehold interest in the Parking Deck or any portion thereof, and the holder of any security deeds covering the Parking Deck or any portion thereof, if any; and any losses thereunder shall be payable to the parties as their respective interests may appear. The party procuring such insurance shall deliver to the other party certificates of insurance with respect to all policies so procured, including existing, additional and renewal policies and, in the case of insurance about to expire, shall deliver certificates of insurance with respect to the renewal policies not less than ten (10) days prior to the respective dates of expiration. All policies of insurance provided under this Article shall, to the extent obtainable, have attached thereto an endorsement that such policy shall not be canceled or materially changed without at least thirty (30) days prior notice to Developer, City, any other fee or leasehold owner of any portion of the Parking Deck, and any holder of indebtedness secured by any portion the Parking Deck. Section 4.7. Waiver of Subrogation. City and Developer agree that with respect to any loss or claim which is covered by insurance then being carried or required to be carried by them under this Agreement, the party suffering such loss or claim and carrying or required to carry such insurance releases the other of and from any and all claims, defense costs and expenses with respect to such loss or claim, to the extent of available insurance proceeds. City and Developer further agree that each of their insurance policies shall provide for an appropriate waiver of subrogation reflecting this release. Section 4.8. Indemnification. Subject to the waiver of subrogation provisions in this Agreement, each Party shall indemnify and hold harmless the other Party, its subsidiaries, its affiliates, and their respective officers, directors, agents, and employees from and against any and all claims, liabilities, losses, damages to persons or property, costs, and expenses of any kind or character, including without limitation reimbursement of court costs, reasonable attorneys fees, interest, fees, and penalties, to the extent such liabilities are finally determined by a court of competent jurisdiction to have been the result of the acts, omissions, negligence, or misconduct of such indemnifying Party or its employees, contractors, agents, lessees, or invitees, in the use, operation, or maintenance of the Property. This section shall survive termination of this Agreement. ARTICLE V DAMAGE AND DESTRUCTION Section 5.1. Damage or Destruction of Parking Deck. In the event of damage to or destruction of all or any part of the Parking Deck, City shall, at its election, either (i) rebuild, replace and repair such damaged or destroyed improvements to the same condition and usefulness and to the same general appearance as existed immediately prior to such damage or destruction, or (ii) clear debris and raze the improvements as outlined below. Upon such damage or destruction, City shall notify Developer of its election within ninety (90) days. In the event City elects to rebuild, replace, or repair the Parking Deck, such reconstruction shall be completed as expeditiously as reasonably possible but no later than twelve (12) months following such damage and shall be performed in compliance with the requirements set forth with respect to the initial construction of such improvements. In the event City elects to clear the debris and raze the improvements, such work shall be completed as expeditiously as reasonably possible but no later than three (3) months following such damage and shall be performed in a first-class and workmanlike manner. Section 5.2. Clearing Debris from Razed Improvements. To the extent City does not elect to restore the Parking Deck destroyed or damaged by casualty, City shall promptly raze the entirety of the
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Parking Deck, clear away all debris and take all other action (including repaving) required by good constructions practice so that the area which had been occupied by the razed improvements will be compatible with the surrounding property and shall be aesthetically appropriate in accordance with the Standard. Section 5.3. Termination of this Agreement; Option to Re-Acquire the City Property. In the event City fails to rebuild after damage to the Parking Deck, this Agreement shall terminate upon the completion by City of its obligation to clear debris and raze the improvements as outline above. Upon such termination, Developer may develop the Developer Property in accordance with applicable laws. In such event, Developer shall have a perpetual option to acquire the City Property for its fair market value, as determined by an appraisal complying with the laws of Georgia with respect to the sale of government owned property. City shall reasonably cooperate with Developer in obtaining such appraisal and all necessary approvals for such conveyance of the City Property. ARTICLE VI MISCELLANEOUS Section 6.1. Breach. In the event of a breach or threatened breach of this Agreement, the parties shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach (including, without limitation, the right to obtain injunctive relief or specific performance). In the event such proceedings are instituted, the non-prevailing litigant shall pay the reasonable attorneys fees of the prevailing litigant. It is expressly agreed that no breach of this Agreement shall result in a cancellation, rescission or termination of this Agreement or the easements and other rights and obligations created hereby. Section 6.2. Amendments. The terms, covenants, conditions, and provisions of this Agreement cannot be modified or added to except in writing signed by all Parties. Section 6.3. Time of Essence. Time is of the essence.
Section 6.4. Notices. All notices hereunder or required by law will be sent (a) via US Mail, postage prepaid, certified or registered mail, return receipt requested; or (b) via any nationally recognized commercial overnight carrier with provisions for a receipt, in either case addressed to the parties hereto at their respective addresses or numbers set forth below or as they will have theretofore specified by notice delivered in accordance herewith:
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In case of the City to: Augusta, Georgia City County Municipal Building 530 Greene Street Augusta, Georgia 30901 Attn: City Administrator In the case of Developer to: 933 Broad Investment Co., LLC One 10th Street, Riverfront Center Suite 340 Augusta, Georgia 30901 Attn: Mr. Paul S. Simon
With a copy to: Augusta, Georgia Legal Department 530 Greene Street Augusta, Georgia 30901 Attn: General Counsel With a copy to: Hull Barrett, PC 801 Broad Street, 7th Floor Augusta, Georgia 30901 Attn: Rand Hanna
Section 6.5. Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by the parties hereto. Section 6.6. Severability. If any provision of this Agreement or its application to any party or circumstances will be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, will not be affected thereby, and each provision hereof will be valid and will be enforced to the fullest extent permitted by law. Section 6.7. Computation of Time. The time in which any act under this Agreement is to be done shall be computed by excluding the first day and including the last day. If the last day of any time period stated herein shall fall on a Saturday, Sunday or legal holiday, then the duration of such time period shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sunday or legal holiday. Unless preceded by the word business, the word day shall mean a calendar day. The phrase business day or business days shall mean those days on which the Superior Court of Augusta-Richmond County, Georgia is located is open for business. Section 6.8. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia. Section 6.9. Waiver. The failure of either party to insist upon a strict performance of any of the terms or provisions of this Agreement or to exercise any option, right or remedy herein contained, shall not be construed as a waiver or as a relinquishment for the future of such term, provision, option, right or remedy, but the same shall continue and remain in full force and effect. No waiver by either party of any term or provision hereof shall be deemed to have been made unless expressed in writing and signed by such party. Section 6.10. Successors and Assigns. The provisions of this Agreement shall apply to, inure to the benefit of and bind the Parties and the respective successors and assigns thereof, including, without
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limitation, any mortgagee acquiring an interest in any portion of the Developer Property or the City Property or any improvements thereon by reason of foreclosure, deed or assignment in lieu of foreclosure or purchase at foreclosure sale; but any such mortgagee shall not incur or be required to assume any obligation under this Agreement unless and until such mortgagee has so acquired an interest in any portion of the Developer Property or the City Property or any improvements thereon, and then only such as may arise by operation of law by reason or privity of estate as limited by the provisions of this Agreement. Subject to the above, whenever in this Agreement a reference to any Party is made, such reference shall be deemed to include a reference to the heirs, executors, legal representatives, successors and assigns of such Party. It is expressly acknowledged and agreed by the Parties hereto that Developer may convey all or any portion of the Developer Property and retain from such conveyance the rights and obligations of Developer under this Agreement. Such retained rights and obligations of Developer may be further transferred, assigned or conveyed by Developer or financed and assigned by Developer as set forth in Section 6.16 below. Section 6.11. Force Majeure. Any partys performance under this Agreement shall be suspended to the extent such partys performance shall be delayed or hindered in or prevented from the performance of any act required by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, riots, terrorism, insurrection, war or other reason of a like nature not the fault of such party. Section 6.12. Third Party Beneficiaries. This Agreement shall not inure to the benefit of any third party except that this Agreement may be enforced by Wells Fargo as holder of the Security Deed. Section 6.13. Relationship of the Parties. Nothing contained herein shall be construed or interpreted as creating a partnership, joint enterprise or joint venture between or among the Parties. It is understood that the relationship between the parties is an arms-length one that shall at all times be and remain separate with respect to their interests in each tract. No Party shall have the right to act for or on behalf of another Party, as agent or otherwise, unless expressly authorized to do so by separate written instrument signed by the Party to be charged or bound. Section 6.14. Interpretation. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or other governmental or judicial authority by reason of such Party having or being deemed to have structured or dictated such provision. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular. Titles of Articles and Sections of this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement, and all references in this Agreement to Articles, Sections or Subsections thereof shall refer to the corresponding Article, Section or Subsection of this Agreement unless specific reference is made to the articles, sections or subdivisions of another document or instrument. Section 6.15. Management Agreement. The Parties acknowledge that the Management Agreement in effect on the date of this Agreement may shift responsibility for costs, operation, insurance, etc. between Developer (or its affiliate) and City. In the event the Parties agree to the terms of a Management Agreement with respect to the management of the Parking Deck (and such agreement shall be assumed if the Parties or their affiliates are parties to the Management Agreement), any conflicting terms of the Management Agreement shall control over this Agreement. Section 6.16. Financing - Limitations of Mortgagee Liability. Any Party may finance its Property subject to this Agreement, and, in conjunction therewith, may convey and/or assign (either absolutely or conditionally) all of its rights and interests under this Agreement to any mortgagee or lessee. This Agreement and the rights, interests and easements created hereunder shall be prior and superior to
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any such mortgage or lease of any portion of the Property. Any such mortgagee or lessee shall be liable for the performance of the mortgagors or lessees covenants and obligations hereunder only if and for so long as such mortgagee or lessee comes into and holds possession (or has a right to possession) of such mortgagees or lessees property, but upon any such transfer or further lease the transferee shall be subject to the terms of this Agreement. Except as specifically provided in this Agreement, no mortgagee shall have any personal or corporate liability with regard to any provision of this Agreement during the period of such mortgagees ownership or possession of any property encumbered hereby, any such mortgagees liability hereunder being limited to its interest in the property covered by such mortgage, any improvements erected thereon, and the rents and other income derived therefrom. Section 6.17. Status Reports. Recognizing that any Party may find it necessary from time to time to establish to third parties such as accountants, banks, mortgagees or the like, the then current status of performance hereunder, the Parties each agree, upon the written request of the other Party, made from time to time by notice as provided in this Agreement, to furnish promptly a written statement (in recordable form, if requested) on the status of any matter pertaining to this Agreement to the best of the knowledge and belief of the Party making such statement.
[EXECUTION ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed under seal effective the date and year first above written. Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal) Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal) 933 Broad Investment Co., LLC, a Georgia limited liability company By:________________________ Paul S. Simon As its President (Seal) Augusta, Georgia By:________________________ Its Mayor Attest:______________________ Its Clerk of Commission (Seal)
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CONSENT AND SUBORDINATION Wells Fargo Bank, National Association (Wells Fargo), the holder of the Security Deed and the indebtedness secured thereby, hereby consents to the foregoing Agreement and subordinates the Security Deed to the foregoing Agreement. Otherwise, the Security Deed shall remain in full force and effect. Executed under seal this ____ day of ___________, 2012.
Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal)
Wells Fargo Bank, National Association (Seal)
By:__________________________ Print Name: ___________________ Title: ________________________
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Schedule of Exhibits Exhibit A Developer Property Exhibit B WAGT Tract Exhibit C Jackson Tract Exhibit D Air Rights Parcel Exhibit E Access Easement Areas Exhibit F Traffic Control Areas Exhibit G Landscape Areas Exhibit H Schematic Plans and Specifications
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Exhibit A Developer Property All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. AND All those lots, tracts, or parcels of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 4 containing 0.41 acre, more or less, and Tract 4A containing 0.01 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. LESS AND EXCEPT the Air Rights Parcel, as defined on Exhibit D of this Agreement.
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Exhibit B WAGT Tract
All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 1 containing 0.32 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.
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Exhibit C Jackson Tract
All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 2 containing 0.07 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.
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Exhibit D Air Rights Parcel
The exclusive and perpetual right of possession and occupancy of, the exclusive and perpetual right to floor and to cover over and to build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 151.05 feet above mean sea level and below a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described as follows: All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.
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Hull Barrett 5/16/12 Version 14
REYNOLDS STREET PARKING DECK MANAGEMENT AGREEMENT

THIS REYNOLDS STREET PARKING DECK MANAGEMENT AGREEMENT (Agreement) is made effective the ___ day of ________, 2012, by and between AUGUSTA, GEORGIA (Owner) and AUGUSTA RIVERFRONT, LLC, a Georgia limited liability company (Manager). RECITALS A. Owner is a political subdivision of the State of Georgia and a consolidated city-county government pursuant to the laws of the State of Georgia. B. Owner intends to construct and own the Reynolds Street Parking Deck (the RSPD) which is generally defined as all elevated parking areas and specifically excluding the ground level or surface parking areas owned by Augusta, Georgia Land Bank Authority, on which easements for parking and other rights are held by 933 Broad, LLC. The RSPD is to be located at the northwestern intersection of Reynolds Street and James Brown Boulevard in Augusta, Georgia, and Owner intends to acquire certain air rights relating to, or fee simple and/or leasehold title, to the land upon which such building is located, and the furniture, fixtures, equipment, and supplies located therein. C. Owner has determined that significant public benefits will ensue to the citizens of Owner when the RSPD is continuously operated at a high standard of quality, in order to positively affect the quality of life on the City of Augusta and its environs, and in such a way so as to maximize its long-term utilization at rates at or above the nonfixed costs of operation. D. Owner has further determined that the RSPD be made available to all persons and groups on such basis, without any preference for business entities or associations, and that Owners objectives may best be achieved through a management agreement with a private company with expertise in such matters. E. Through its prior and current operation of the Conference Center, the Augusta Marriott and the Augusta Marriott Suites (the Hotels), which are situated adjacent to the Conference Center, Manager has sufficient knowledge as to local conditions and possesses the resources to efficiently operate facilities of a character and location comparable to the RSPD, and agrees to provide such time, expertise, and knowledge to Manager as necessary to operate the facilities as required under this Agreement. Item # 15
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F. Owner desires to have Manager manage and operate the RSPD, and Manager is willing to perform such services for the account of Owner on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Defined Terms. All capital terms herein and not otherwise defined shall have the meaning as defined in the CORE Agreement or TEE Center CORE Agreement or the RSPD CORE Agreement, as the context requires. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings assigned to them herein, unless the context otherwise indicates: Annual Plan shall have the meaning set forth in Section 7.1. Approving Tax Opinion shall mean the opinion of tax counsel experienced in federal income tax matters related to state and local bonds, within the meaning of Section 103 of the Internal Revenue Code of 1986, as amended (the Code), and qualified bonds, within the meaning of Section 141 of the Code, to the effect that a proposed action or amendment will not, without more, impair any exclusion of the interest on any outstanding issues of obligations that were issued to finance the RSPD, or result in the disallowance of any credit against federal income tax or payable to the issuer of such obligations by the U.S. Treasury Department. Capital Account shall have the meaning set forth in Section 6.1. Capital Expenses shall mean all expenditures for Capital Improvements. Capital Improvements shall mean one or more items or project(s) - i) the cost of each of which totals $5,000.00 or more, ii) that becomes part of the RSPD, and iii) the cost of which is required or allowed to be capitalized under the accounting guidelines of Augusta, Georgia and GAAP. Examples of Capital Improvements include but are not limited to, traffic/parking/access control equipment, furniture, fixtures, roofing, and striping, including the cost of repair or replacement thereof. Conference Center shall mean the Expanded Conference Center, as defined in the CORE Agreement. Convention Center shall mean the Conference Center, the TEE Center, the RSPD and the existing parking deck associated with the Conference Center. CORE Agreement shall mean that Amended and Restated Construction, Operating and Reciprocal Easement Agreement dated June 1, 1999, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia at Realty Reel 648, Item # 15
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page 45, and all amendments thereto, including an amendment on or about the date of this Agreement whereby the Conference Center is expanded to include Conference Center Annex. Effective Date shall mean the date on which construction of the RSPD has been completed, a certificate of occupancy for the RSPD has been issued, and the RSPD has been fully furnished and delivered to Manager for operation. Financial Statement shall have the meaning set forth in Section 7.6. Fiscal Year shall mean the twelve (12) month period ending December 31 of each year during the Operating Term of this Agreement. The first Fiscal Year shall be the period commencing on the Effective Date and ending on December 31 of the same year. A partial Fiscal Year after the end of the last full Fiscal Year and ending with the expiration or earlier termination of the Operating Term shall constitute a Fiscal Year. GAAP shall mean Generally Accepted Accounting Principles based on the accrual method of accounting. Management Fee shall have the meaning set forth in Section 3.1. Managers Other Businesses shall have the meaning set forth in Section 5.1. Net Operating Revenues shall mean for any period the excess, if any, of Operating Revenues over Operating Expenses, as determined using GAAP. Operating Account shall have the meaning set forth in Section 6.1. Operating Expenses shall mean all expenses required to be incurred in order to operate and manage the RSPD to the extent the same are authorized under the applicable Annual Plan, including, but not limited to the following: (a) Salary Costs of RSPD Employees and Shared Employees; (b) operating supplies; (c) utility and telephone charges; (d) repair and maintenance costs; (e) equipment rental costs; (f) insurance costs related to RSPD operations, including insurance premiums paid by Manager on behalf of the Owner (but not performance or fidelity bonds); (g) security costs; (h) cleaning expenses; (i) cost of reimbursable event expenses; (j) the cost of obtaining an audited financial statement of Manager; (k) pre- and post-opening marketing, promotional and advertising expenses; (l) sales commissions; (m) maintenance agreements; and (n) any other expenses incurred in the operation of the RSPD that would be considered operating expenses under GAAP. Operating Expenses shall not include debt service on any borrowing to finance the acquisition, construction, installation, and equipping of the RSPD. Operating Revenues shall mean the gross revenues generated from the operation of the RSPD including, but not limited to, the following: (a) sums collected by the Operator from the rental of space for the parking and storage of motor vehicles whether on an hourly, daily, weekly, or monthly basis, less all refunds, credit card fee discounts, and other discounts as authorized by Owner (sales tax, use tax, excise tax, Item # 15
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occupancy tax, gross receipts tax, or other taxes assessed upon or attributable to said receipts shall be held by the Operator and paid directly to the taxing entity involved); (c) on-site advertising revenues; (d) interest income, if any, from the Operating Account; (e) reimbursable event expenses; (f) all other RSPD miscellaneous revenue; (g) any and all revenues generated by or associated with RSPD marquee advertising; and (h) revenue derived from naming rights. Operating Term shall have the meaning set forth in Section 2.4. RSPD CORE Agreement shall mean the agreement executed in connection with this Agreement which provides for the construction and operation of the RSPD and provides any necessary easements with respect construction or operation of the RSPD. Salary Costs shall mean the gross amount payable by an employer to secure the services of an employee including, without limitation, employees accrued and vested wages, salaries, employee medical/disability/life insurance and other health benefits incurred by Manager, vacation pay and sick leave, severance costs, 401(k), profit sharing, pension or similar retirement benefits or other accrued and vested fringe benefits, business travel expenses, and other compensation of whatever nature, including any applicable federal, state and local taxes. For the avoidance of doubt, Salary Costs may also include bonuses for employees or commissions for sales staff. Shared Employees shall have the meaning ascribed thereto by Section 5.3(f) and may include officers, managers or members of Manager. Standard shall mean the first-class standard of operation, maintenance and repair of the TEE Center, adjusted to take into account the differences between a parking deck and a trade, exhibit, and event center. TEE Center shall mean the trade, event and exhibit hall to be constructed adjacent to the existing Conference Center. TEE Center CORE Agreement shall mean the agreement executed in connection with this Agreement, which provides for the construction and operation of the TEE Center and provides any necessary easements with respect construction or operation of the TEE Center. RSPD Employees shall have the meaning set forth in Section 5.3(a) but shall not include any officer or member of Manager or any person who, directly or indirectly, otherwise owns an interest in Manger or any affiliate thereof. ARTICLE II APPOINTMENT OF MANAGER AND OPERATING TERM 2.1 Appointment of Manager; Powers and Duties Generally. Subject to Managers covenants set forth in 5.1, Owner hereby appoints, authorizes, and engages Manager, and Manager hereby accepts appointment on the terms and conditions Item # 15
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hereinafter provided as agent to: (a) manage, operate, control, license, and rent the RSPD on Owners behalf during the Operating Term; (b) collect all fees, pay all expenses, and pay or cause to be paid all Capital Expenses with respect to the RSPD in accordance with the Annual Plan; (c) render Financial Statements to Owner as set forth in this Agreement; (d) remit to the Owner on a quarterly basis Net Operating Revenues for the immediately preceding quarter, less permitted reserves as authorized by 6.2 of this Agreement; (e) execute, renew and cancel rental and license agreements for the RSPD or any part thereof at rates and on such terms as may be approved by Owner in accordance with the Annual Plan; and (f) sue and recover for rent and for loss of or damage to any part of the RSPD and, when expedient, compromise, settle and release any such legal proceedings or lawsuits; provided, however, that Manager shall not settle any lawsuit or other claim relating to the RSPD without the prior consent of Owner. Concerning the RSPD, Manager shall have the exclusive right to enter into any lease, license or other agreement granting any party the right to use any portion of the RSPD except as provided in the Annual Plan. RSPD operations shall be under the exclusive supervision and control of Manager subject to the terms of this Agreement. Manager shall have discretion and control, free from interference, interruption or disturbance, in all matters relating to management and operation of the RSPD, including, without limitation, charges for license and rental, other RSPD services, employment policies, granting of concessions or renting of space within the RSPD, receipt, holding and disbursement of funds, maintenance of bank accounts, procurement of supplies and services, promotion and publicity and, in general, all activities necessary for operation of the RSPD. 2.2 Restriction on RSPD Licenses and Rentals. Except as otherwise additionally limited hereby, Manager shall have the discretion to prescribe the terms of the rental or licensing of space at the RSPD based on generally applicable and uniformly applied rates or that are negotiated with the user in arms-length bargaining, in either case, that is consistent with the applicable Annual Plan. Notwithstanding the foregoing, Manager shall not be prohibited by this Section 2.2 from entering into a lease or licensing of space at the RSPD if Manager and Owner have received an Approving Tax Opinion. 2.3 Relationship of Parties. Neither this Agreement nor any agreements, instruments, documents or transactions contemplated hereby shall in any respect be interpreted, deemed or construed as making Manager a partner or joint venturer with Owner or as creating any similar relationship or entity, and Owner and Manager agree that they will not make any contrary assertion, contention, claim or counterclaim in any action, suit or other legal proceeding. 2.4 Operating Term. Subject to Article IV, the initial Operating Term of this Agreement shall be for a period commencing on the Effective Date and terminating on the fifth (5) year anniversary of the Effective Date. The initial Operating Term may be renewed or extended as provided in Section 2.5, 2.6, and 2.7. Notwithstanding the foregoing, this Agreement shall be binding on the date it is signed by Owner and Manager and provisions of this Agreement shall survive the Operating Term to the extent specifically set forth in this Agreement. During the term of this Agreement and any extension thereof, Owner shall have the right to use the parking spaces located on Developers Property and the WAGT Tract after normal business hours and all hourly Item # 15
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parking revenues generated or collected from the use of such parking spaces shall be the property of Owner. 2.5 First Option of Owner to Extend Operating Term. Owner, in its sole discretion, may elect, by written notice to Manager, within 60 days from the expiration of the initial Operating Term of this Agreement, to renew the initial Operating Term of this Agreement, for a period equal to the remaining term of the bond financing used for construction of the RSPD or any refinancing with respect thereto, but in no event for a term exceeding the lesser of 5 years or 80% of the remaining useful life of the RSPD (the First Renewal Option). In the event Owner so elects to extend the Operating Term of this Agreement, all of the other terms and conditions of this Agreement shall remain unchanged during such extended Operating Term. In the event Owner elects not to renew this Agreement, Owner shall not be liable for any penalties or other costs of any kind whatsoever by reason of such non-renewal. 2.6 Second Option of Owner to Extend Operating Term. In the event Owner exercises the First Renewal Option, Owner, in its sole discretion, may elect, by written notice to Manager within 60 days from the expiration of the extended Operating Term of this Agreement, to renew the Operating Term of this Agreement for a period equal to the remaining term of the bond financing used for construction of the RSPD or any refinancing with respect thereto, but in no event for a term exceeding the lesser of 5 years or 80% of the remaining useful life of the RSPD (the Second Renewal Option). In the event Owner so elects to extend the Operating Term of this Agreement, all of the other terms and conditions of this Agreement shall remain unchanged during such extended Operating Term. In the event Owner elects not to renew this Agreement, Owner shall not be liable for any penalties or other costs of any kind whatsoever by reason of such non-renewal. 2.7 Right of First Refusal. In the event that Owner does not elect to exercise its first or second option to extend, and solicits requests for proposals (RFP) for the operation of the RSPD, then in such event Manager shall have the right to meet the terms and conditions of the RFP of the entity that is deemed to be most qualified to operate the RSPD. If Manager agrees to the terms and conditions contained in such RFP, then this Agreement shall be renewed, subject to modification to incorporate any terms and conditions consistent with accepted RFP, and right of first refusal shall be continue in effect, provided however, that the total length of the primary term and all extensions shall not exceed fifteen (15) years. Should Manager not elect to operate the RSPD pursuant to the terms and conditions of the accepted RFP, then in such event Manager shall have no further right to operate the RSPD, notwithstanding any prior vote of the Augusta, Georgia Commission to designate Augusta Riverfront, LLC as the operator of the RSPD. ARTICLE III COMPENSATION OF MANAGER 3.1 RSPD Management Fee. Commencing on the Effective Date, Owner shall, pay to Manager a Management Fee in the amount of $25,000.00 per year, payable Item # 15
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in equal monthly installments, adjusted upward annually, but not downward, by the percentage increase in the Consumer Price Index for all urban consumers (CPI-U) (All Items 1982-84=100) for the preceding calendar year for performing its services under this Agreement in managing the RSPD. The parties acknowledge that certain property and services paid for by Owner and required for the operation of the RSPD will also benefit Managers easement for ground level parking facilities located underneath and adjacent to the RSPD. Such property and services include, but are not limited to, traffic control gates and related equipment, sweepers, lighting, and services of a toll both operator (the Incidental Services). The Incidental Services would be required for the operation of the RSPD whether or not Manager maintained easements for the ground level parking facilities, and allowing Manager to benefit from these Incidental Services does not materially increase the costs to Owner. Accordingly, in further consideration of the granting of air rights and easements to Owner for the construction and operation of the RSPD, Manager shall have the right to utilize the Incidental Services for Managers ground level parking facilities (whether held in fee simple or easement) located underneath and adjacent to the RSPD, so long as such use does not materially increase the cost to Owner. 3.2 Payment of Fee. The Management Fees shall be due and payable no later than the fifteenth (15th) day after the end of the month for which the Management Fee is owed and may be remitted by Manager directly to Manager from the Operating Account. 3.3 Agreement. Survival. The provisions of this Article shall survive termination of this
ARTICLE IV TERMINATION 4.1 Termination. Should either party materially fail to comply with any of the terms of this Agreement, the non-defaulting party may cancel this Agreement upon ninety (90) days written notice to the other party of the alleged breach and failure by such other party to cure such breach within such ninety (90) day period; provided, however, that in the event the default is not curable within such ninety (90) day period, but the defaulting party has commenced within the ninety (90) day period efforts to cure the default, the time to cure the default shall be extended for a reasonable period of time in order to allow such cure. In the event the party alleged to be in material default of this Agreement disputes the existence of such material default, this Agreement shall continue in full force until a court of competent jurisdiction finds such party to be in material default, after written notice and expiration of the applicable cure period, and all time periods for appeal of such finding have expired. 4.2 Rights and Obligations Following Termination. In addition to the rights and remedies otherwise available to the parties at law or in equity, the following provisions will apply following termination pursuant to this Article or the expiration of the Operating Term.
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(a) Manager shall quit, vacate, surrender, and deliver to Owner peacefully and promptly the RSPD, together with all books, records, accounts, contracts, keys, all cash in the Operating Account, less any fees due Manager, and in the Capital Account, and all other pertinent and necessary documents and records pertaining to the RSPD and the operation thereof. After termination of this Agreement, Owner shall, without right of offset against Manager, timely pay all unpaid Operating Expenses incurred by Manager prior to the date of such termination, including without limitation, Salary Costs; (b) Manager shall do all acts and execute and deliver all documents reasonably requested by Owner and otherwise reasonably cooperate with Owner and any successor manager to insure or facilitate orderly continuation of the business of the RSPD. Manager shall take such actions at Owners cost, in which case the costs of such action shall be an Operating Expense; (c) The rights and liabilities of the parties having accrued prior to termination shall continue; and (d) All provisions hereof identified herein as surviving termination of this Agreement shall survive. ARTICLE V SERVICES OF MANAGER 5.1 Managers General Covenants.
(a) Manager shall use commercially reasonable efforts to manage and operate the RSPD in accordance with industry standards for first class parking decks affiliated with trade, exhibit, and event centers of similar size and quality. (b) Manager acknowledges that a conflict of interest could arise between Managers duties hereunder with respect to the RSPD and the interests of Manager in the Hotel, the Conference Center and the RSPD and any other businesses owned or operated (directly or through one or more affiliates) by Manager (Managers Other Businesses). Manager covenants to use its best efforts to cause the RSPD to be operated to fulfill Owners objectives. Without limiting the generality of the foregoing, Manager shall never reduce or discount fees or charges for the license or rental of the RSPD or for goods or services provided at the RSPD, which comprise part of Operating Revenues, from the fees or charges authorized to be charged in such circumstances pursuant to the applicable Annual Plan, in consideration for the use, or promise to use, goods or services provided by Managers Other Businesses. The parties recognize and acknowledge that an affiliated business of Manager maintains easement rights for the surface parking below the RSPD, said affiliated business operates and leases the same for profit, and that such activity is not deemed to be a conflict of interest for purposes of this paragraph.
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(c) Manager shall maintain a separate set of books and records and prepare financial statements reflecting its activities hereunder that are sufficient to enable an auditor to audit the same on the same basis as if such activities were conducted by a separate accounting unit or single purpose entity. 5.2 Policies and Practices. Manager shall adopt and implement administrative, accounting, budgeting, marketing, personnel, and operational policies and practices consistent with industry standards for trade, exhibit, and event centers of similar size and quality. 5.3 Personnel.
(a) Employment. Subject to the terms of this Agreement, Manager shall select, employ, promote, terminate where appropriate, supervise, direct, train, and assign the duties of all personnel which Manager reasonably determines to be necessary or appropriate for the operation of the RSPD (collectively, the RSPD Employees). All RSPD Employees shall be employed by Manager. Owner may at any time consult or communicate with Manager regarding any of the RSPD Employees, but Owner shall not give orders to or otherwise interfere in the day-to-day activities of RSPD Employees including for this purpose Shared Employees. (b) Selection. Manager agrees to use reasonable and prudent judgment in the training and supervision of RSPD employees to ensure that they are courteous and efficient, and do not use improper language or act in a loud or boisterous manner while performing duties at the RSPD. Manager agrees that it will not discriminate against any RSPD Employee or applicant for employment for work under this Agreement because of race, religion, color, sex, disability, national origin, ancestry, physical handicap, or age. (c) Appearance and Training. Manager shall ensure that nonmanagement RSPD Employees performing the duties at the RSPD shall be neatly attired in clean, commercially attractive uniforms. Manager shall train all such employees that they are aware of the high standards for cleanliness, courtesy and service required. (d) Compensation. Manager shall set the salaries and fringe benefits of all RSPD Employees consistent with industry standards and the Annual Plan. Cost-ofliving increases shall not exceed those given by Owner to its employees. Unless otherwise provided in the Annual Plan, no bonuses or merit raises shall be given without the approval of Owner. (e) Salary Costs for Full Time RSPD Employees. Although all RSPD Employees shall be employed by Manager, Owner shall be responsible for all Salary Costs of RSPD Employees. (f) Salary Costs of Shared Employees. In order to provide the most cost-effective services, the parties specifically contemplate that Manager may provide certain of the services under this Agreement through employees and agents of Managers Other Businesses (Shared Employees). To the extent Manager (a) incurs Salary Costs of its Shared Employees that are allocable to operation of the RSPD and (b) Manager Item # 15
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shall not mark-up or otherwise add any profit or administrative charge to such Salary Costs, then, such Salary Costs shall be deemed to be Operating Expenses and shall be remitted to Manager from the Operating Account the same as any other Operating Expense. Salary Costs of a Shared Employee shall be deemed to have been fairly allocable to RSPD operations if the proportion of the Shared Employees aggregate Salary Costs for the period in question so allocated is the same the proportion of the amount of time the Shared Employee exclusively devoted to operation of the RSPD in relation to the total amount of time worked for the period in question. (g) Recordkeeping. The books and records required to be maintained by Manager pursuant to Section 7.5 hereof shall be sufficient to establish the amount of time that any RSPD Employee spends providing services to Managers Other Businesses, and the amount of time any Shared Employee expends providing services for the RSPD, in each case as a percentage of their periodic work schedules. 5.4 Maintenance.
(a) RSPD. Manager shall (i) maintain the RSPD in good condition and repair, and (ii) maintain, repair, and replace when necessary, furniture, fixtures and equipment for the RSPD. Subject to the limitation of 5.4(b), if applicable, Manager may withdraw funds from the Capital Account to pay for Capital Expenses. Manager shall obtain Owners approval prior to making any non-emergency expenditure of more than $10,000.00 on a single maintenance item or category of Capital Expenses not otherwise authorized by the Annual Plan. (b) General Limitation. Except as otherwise expressly authorized herein, any Capital Expense exceeding the budgeted amount(s) set forth in the Annual Plan for such category of expenditure by more than 15% or the payment of which would cause the amount then held in the Capital Account to be reduced by more than 95% of the amount held therein as of the beginning of the Fiscal Year shall require Owners prior approval. 5.5 Marketing. Marketing of the RSPD shall be the obligation of the Manager, subject to the terms of the Annual Plan. 5.6 Legal Services. Manager is authorized to engage such legal counsel as Manager deems reasonably necessary for the ordinary operational legal matters for the RSPD, the reasonable costs and expenses of which shall be an Operating Expense. With the advice and consent of Owner, Manager shall institute any necessary or desirable legal actions or proceedings to collect charges or other income of the RSPD or to enforce the right to cancel or terminate or sue for damages under any agreement relating to the operation of the RSPD. 5.7 Compliance with Government Rules and Regulations. Manager shall operate the RSPD in compliance with all applicable federal, state and local laws and insure that no activity or condition occurs on or about the RSPD in violation of any laws; provided, however, that Manager shall have no liability nor be subject to any allegation of default with respect to non-compliance by the RSPD with any applicable federal, state Item # 15
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and local laws regarding the condition or use of the RSPD and the surrounding property, including without limitation, the Americans with Disabilities Act, zoning regulations and hazardous waste laws. 5.8 Limitation Upon Obligations. In the event that the performance of any of Managers duties requiring expenditure of Owners funds shall be impeded by reason of unavailability of such funds, then, Managers performance of such obligations shall be excused to the extent so impeded and until such funds become available. Manager shall be under no obligation to provide such funds from any source other than amounts then held in the Operating Account or the Capital Account. Managers obligations also shall be excused to the extent performance would be contrary to express written instructions of Owner. Owner shall indemnify, defend, and hold Manager harmless from and against any and all liabilities, claims, suits, fines, penalties, damages, judgments, fees, costs and expenses (including, but not limited to attorneys fees and disbursements) related to the performance of any of Managers duties requiring expenditure of Owners funds, if and when such funds are not available to Manager. 5.9 Contracts. (a) In General. Manager is hereby authorized, without Owners prior approval, to enter into contracts, in its own name or as Owners agent, with vendors or service providers of its choice, provided, in addition, that the contract in question: (i) does not have a term exceeding the lesser of one year and the then remaining Operating Term, (ii) the aggregate annual Operating Expense attributable to the contract does not exceed $5,000, (iii) does not authorize the vendor or service provider to use any portion of the RSPD unless the compensation therefor is not based on the net profits arising from such service or activity, and (iv) is not inconsistent with the applicable Annual Plan. Manager shall promptly notify Owner of the execution of such contracts. (b) Special Indemnity. In the event Manager, in its own name or as agent of Owner, enters into a contract for or related to the RSPD, Owner shall indemnify, defend, and hold Manager harmless from and against any and all liabilities, claims, suits, fines, penalties, damages, judgments, fees, costs and expenses (including, but not limited to attorneys fees and disbursements) related to the payment of, or obligations related to such contract. This right of indemnification shall survive termination of this Agreement. 5.10 Costs of Compliance. Unless otherwise set forth in this Agreement to the contrary, any costs related to duties imposed on Manager shall, except to the extent incurred as a result of Managers gross negligence, willful misconduct or breach of this Agreement, be at Owners cost, in which case the costs of such action shall be an Operating Expense and may be paid from the Operating Account. ARTICLE VI BANK ACCOUNTS, PAYMENTS AND DISTRIBUTIONS 6.1 Bank Accounts. Manager shall open, at one or more banks in Augusta, Georgia selected by Manager, a bank account for the benefit of Owner, which will serve as an operating account for the RSPD (the Operating Account). and (b) a bank Item # 15
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account for the benefit of Owner, which shall serve as a capital account for the RSPD (the Capital Account), as the source of funds for Capital Expenses. 6.2 Operating Account; Payment to Owner. Manager shall deposit all Operating Revenues into the Operating Account. All Operating Revenues, whether or not deposited into such account, shall be solely the property of Owner. All Operating Expenses shall be borne exclusively by Owner. Manager shall have authority to execute checks, drafts and other items on the Operating Account to pay the Operating Expenses, including the Management Fee. In the event the amount held in Operating Account at the end of any quarter exceeds the amount reasonably anticipated to be necessary for the operation of the RSPD for the succeeding quater, Manager shall distribute such excess amount to Owner not later than fifteen days of the close of the quarter.. If at any time the Operating Account contains less than the reasonably anticipated Operating Expenses for a period of time not longer than the ensuing 90 days, Manager shall so advise Owner in writing, accompanied by an (pro-forma) operating budget, that was submitted as part of the Annual Plan or, if the Annual Plan has not yet been adopted, in Managers proposed budget for the Annual Plan, and Owner shall cause such amount to be deposited into the Operating Account within ten (10) business days of receipt of such notice. The intent of this section is that the Operating Account shall, at all times, contain a permitted reserve sufficient to cover Operating Expenses for the next 90 days, without regard to the future receipt of any Operating Revenues. In the event of a deficiency in the Operating Account, Manager may, but shall not be required to, in its sole discretion, advance funds to meet Operating Expenses and such advances shall become immediately due from Owner. Manager may, but shall not be required to, in its sole discretion, advance funds for pre-opening expenses approved by Owner. Such advances shall be reimbursed to Manager from the first receipts from the operation of the RSPD. 6.3 Capital Improvements and Capital Account. Owner agrees to provide all necessary funding for Capital Expenses that are reasonably necessary to maintain the RSPD to the Standard in accordance with the Annual Plan. Fifteen percent of all net operating revenues shall be earmarked annually by Owner for Captial Expenses until the balance of earmarked funds is the lesser of $250,000.00 and the capital reserve approved in the Annual Plan. Upon Manager notifying Owner in writing that a portion of such earmarked funds are needed for payment of Capital Expenses, then Owner will within fifteen (15) day deliver funds to Manager as necessary for the payment of Capital Expenses and Manager will deposit such funds into the Captial Account. Such funds shall be used for Capital Improvements for any parking decks associated or located in the immediate proximity of the Convention Center. In the event that funds in the Capital Account are used for capital expenditures, then in such event Manager shall resume depositing fifteen (15%) percent of Net Operating Revenues, if any, into the Capital Account until such time as the balance in such account is restored. Manager shall have the right to execute checks, drafts, and other items on the Capital Account to pay Capital Expenses in accordance with Section 5.4 of this Agreement. To the extent funds are not available in the Capital Account which are reasonably necessary to maintain the RSPD, Manager shall so notify Owner in writing and within thirty (30) days of such notification, Item # 15
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Owner shall cause to be deposited into the Capital Account a sufficient amount to fund Capital Improvements in accordance with the Standard and the Annual Plan. In the event that performance of any of Manager's obligations requiring expenditure of Owner's funds related to the Capital Expenses shall be impeded by reason of unavailability of such funds, then, Manager's performance of such obligations shall be excused to the extent so impeded and until such funds become available. Manager shall be under no obligation to provide such funds from any source other than Net Operating Revenue or other sources of funds provided by Owner. Manager's obligations shall also be excused to the extent performance would be contrary to express written instructions of Owner. In the event Owner fails to make such money available to Manager, Owner shall indemnify, defend, and hold Manager harmless from and against any and all liabilities, claims, suits, fines, penalties, damages, judgments, fees, costs and expenses (including, but not limited to attorneys' fees and disbursements) related to the performance of any of Manager's duties hereunder requiring expenditure of funds for Capital Improvements. In the event of a deficiency in the Capital Account necessary to maintain the RSPD to the Standard and in accordance with the Annual Plan, Manager may, but shall not be required to, in its sole discretion, to advance funds to maintain the RSPD to the Standard and such advance shall be immediately due and payable from Owner. 6.4 Indemnity. Debts, obligations, and other liabilities incurred by Manager that are part of the Annual Plan or are otherwise authorized hereunder and are incurred in the performance of its duties under this Agreement shall be deemed to be incurred on behalf of Owner. Owner shall indemnify, defend, and hold Manager harmless from and against any and all liabilities, claims, suits, fines, penalties, damages, judgments, fees, costs and expenses (including, but not limited to attorneys fees and disbursements) related to the payment of, or obligations related to, the Management Fee, other Operating Expenses, and Capital Expenses. Expenses arising from the fraud or gross negligence of Managers corporate office senior management personnel in the management, operation, or maintenance of the RSPD shall not be authorized expenditures and shall not be subject to indemnification from the Owner. 6.5 Tax Authority Audits. If, during the Operating Term or thereafter, any applicable taxing authority assesses additional taxes of any kind with respect to the RSPD, such additional taxes or assessments, together with any interest, penalties, fees, or other amounts assessed related thereto, shall be Operating Expenses, together with all costs, accounting fees, and legal fees incurred by Manager on behalf of the RSPD in reviewing and, if necessary, challenging or negotiating such determinations. Manager shall be authorized to pay from the Operating Account all such costs, fees, and tax amounts determined to be due but shall otherwise have no liability therefor. This provision shall survive any termination of this Agreement. ARTICLE VII BUDGETS AND ACCOUNTING 7.1 Annual Plan. Manager shall submit to Owner, for Owner's approval as a part of Owners budget process, not later than ninety (90) days subsequent to the Item # 15
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Effective Date, and at least ninety (90) days prior to the beginning of each Fiscal Year thereafter, an annual plan for the RSPD (the Annual Plan), which shall include for the ensuing Fiscal Year, the following proposed budgets and programs setting forth: (a) Expenses; (b) Manager's best estimate of Capital Expenses for RSPD; Managers best estimate of Operating Revenues and Operating
(c) a proposed schedule of rental rates for the use of the RSPD (including hourly, daily and monthly fee rates), and objective criteria for deviating from such rates and fees; (d) marketing expenses; and
(e) a summary of the prior years operations and such other information Manager deems beneficial to Owner. Following adoption of the Annual Plan, Manager covenants not to make RSPD available for rates and fees that differ from the approved schedule of rates and fees without prior consent of Owner. The Annual Plan attached to this Agreement covers Fiscal Year 2012. Operating Expenses set forth in said Annual Plan shall constitute the approved Operating Expenses, on a pro-rata basis, for the period from the date of this Agreement through December 31, 2011. The parties acknowledge that the first Annual Plan is based on estimates made without the benefit of operating experience. Manager may submit a revised first Annual Plan if operating experience from the opening of the RSPD through December 31, 2011, indicates that the first Annual Plan does not accurately reflect anticipated revenues and expenses. 7.2 Information Sharing. [intentionally deleted].
7.3 Approval of Annual Plan. Owner shall notify Manager within thirty (30) days of its receipt of the proposed Annual Plan if Owner has any objections to the Annual Plan. Otherwise, the Annual Plan shall be deemed approved. If the Annual Plan is disapproved by Owner, Manager and Owner shall enter into discussions in an attempt to determine mutually satisfactory budgets and programs. Until the Annual Plan is approved or deemed approved by Owner, the parties agree that Manager shall operate the RSPD in accordance with the last previously approved or deemed approved Annual Plan. Manager shall operate the RSPD in substantial accordance with the Annual Plan; provided, however, Owner acknowledges and agrees with Manager that during the first three Fiscal Years of the Operating Term, when Net Operating Revenues will be especially difficult to predict, the Annual Plan will be only a planning tool. Furthermore, expenses related to the RSPD vary in proportion to business volume, making budgeting imprecise and unpredictable. During the initial three Fiscal Years, Owner authorizes Manager to deviate from the Operating Expenses or Capital Expenses as set forth in the Annual Plan, following notice to Owner and without any prior approval of Owner if, in the reasonable judgment of Manager, such deviation is necessary to achieve Owners objectives to operate RSPD in accordance with the Standard, but only if such change Item # 15
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does not result in the expenditure of funds in excess of the lesser of: (i) fifteen percent (15%) of the budgeted amount of Operating Expenses or Capital Expenses, as the case may be in the Annual Plan and (ii) ninety-five percent (95%) of the amount then held in the Capital Account or the Operating Account as the case may be. 7.4 Amendments of Annual Plan. Manager may notify Owner of a proposed change to the Annual Plan. Owner shall notify Manager within thirty (30) days of its receipt of the requested modification of any objections to the modified Annual Plan. Otherwise, the modified Annual Plan shall be deemed approved. Owner agrees to consider, in its reasonable judgment, modification of the Annual Plan to enable the RSPD to be operated in accordance with the Standard. 7.5 Obligation to Provide Funding to Operate and Maintain the RSPD to the Standard. Notwithstanding anything in this Agreement to the contrary, Owner agrees to provide funding to Manager, whether through approval and funding of the Annual Plan or through approval and funding of amendments to the Annual Plan, in an amount sufficient to operate and maintain (whether such maintenance be categorized as Capital Expenses or Operating Expenses) the RSPD. In the event Owner fails to provide funding as required in this Section, Managers sole remedy shall be to terminate this Agreement whereupon Manager shall have the rights and obligations set forth in Section 4.2 of this Agreement. After such termination, neither Manager nor Owner shall have any further obligations to the others under this Agreement. 7.6 Books and Records. Manager shall establish and maintain for the benefit of Owner complete, current, and accurate records and books of account reflecting all transactions of the RSPD and of Manager with respect to the RSPD that are separate from Managers Other Businesses. Manager shall make such books and records available during normal business hours and at all other reasonable hours at the RSPD for inspection, copying, and audit upon reasonable notice by Owner and its agents. 7.7 Financial Statements.
(a) Annual Statements. Manager shall prepare and deliver to Owner by the 90th day after the end of each Fiscal Year the following financial statements and reports (the Financial Statements) using GAAP, which are in reasonable detail covering RSPD operations for such previous Fiscal Year: (i) balance sheet as of the last day of such Fiscal Year, which shall reflect the balances of the Operating Account and Capital Account as of the last day of such Fiscal Year, (ii) cash flow statement, and (iii) profit and loss statement. The profit and loss statement will include a comparison of the budgeted and actual revenues and expenses as well as a comparison to the prior Fiscal Year. (b) Quarterly Statements. On or before 30 days after the end of each calendar quarter, Manager shall prepare and deliver to Owner a statement showing Operating Revenue and Operating Expenses for the previous calendar quarter and Statement of Capital Expenditures.
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7.8 Annual Audit. On or prior to 120 days after the end of each Fiscal Year, Manager shall provide, at Owners cost and expense, a financial audit with respect to RSPD operations to be made by an independent certified accounting firm selected by Manager and designated in the Annual Plan. 7.9 Survival Following End of Term. Managers obligations under this Article shall continue as to all Fiscal Years occurring within the Operating Term notwithstanding that such performance may be due following the end of such term. ARTICLE VIII ASSIGNMENT 8.1 Assignment by Manager.
(a) Manager shall have the right, without the prior written consent of Owner (but only upon not less than five (5) business days prior notice to Owner), to assign this Agreement or any duties arising hereunder to any entity controlled by, or under common control with, Manager, provided that (i) such case such transferee shall have, in the reasonable judgment of Owner, expertise, personnel and other resources sufficient to discharge its duties hereunder no less favorably than Manager has performed the same, (ii) the assignee or transferee agrees directly with Owner to be bound by all of Managers obligations under this Agreement, and (iii) Owner shall have received an Approving Tax Opinion. (b) In the event Manager, including for this purpose any affiliate thereof, sells the Hotels to a third party, Owner shall elect one of the following: (i) allow transferee to assume this Agreement and release Manager from its obligations under this Agreement but only if Owner shall have received an Approving Tax Opinion, or (ii) allow Manager to terminate this Agreement, without penalty. 8.2 Assignment by Owner. Owners obligations under this Agreement shall not be assigned, and any purported assignment shall be void, without the prior written consent of Manager, which consent shall not be unreasonably withheld. ARTICLE IX INSURANCE Owner shall either self-insure or self-fund or provide insurance equal or greater the following insurance requirements 9.1 General Liability Insurance. Owner shall carry comprehensive general liability insurance, including contractual liability, personal and bodily injury, and property damage insurance, on the RSPD, with a combined single limit in an amount sufficient to protect Owner and Manager, but in no event will such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. Manager shall be named as an additional insured under such insurance. Owner shall provide Manager Item # 15
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with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of the Operating Term. Owners insurance shall contain a clause stating that there shall be no reduction, cancellation, or non-renewal of coverage without giving Manager thirty (30) days prior written notice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and not contributory to any similar insurance carried by Manager, and shall contain a severability of interest clause. 9.2 Property Insurance. Owner shall procure and keep in effect during the Operating Term fire and extended coverage for the RSPD and all personal property in the RSPD, including rent loss or business interruption coverage for periods of no less than twelve (12) months, written on an All-Risk Endorsement and Replacement Cost basis, with the replacement cost value reasonably acceptable to Manager. Such policy shall name Owner and Manager as loss payee, mortgagee, as their interest may appear. Owner shall provide Manager with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of the Operating Term. 9.3 Operational Insurance. following insurance: Manager shall procure and maintain the
(a) Workers Compensation and employers liability insurance as may be required under applicable laws covering all RSPD Employees, including Shared Employees, with such deductible limits as determined by Manager; (b) Garage Keepers legal liability insurance to insure against theft, loss and damage to patrons vehicles. (c) Such other insurance and/or additional coverage in amounts as Manager in its reasonable judgment deems advisable for its protection against claims, liabilities and losses arising out of or connected with its performance under this Agreement. 9.4 Cost and Expense. Except with respect to insurance premiums that are paid by Owner other than with funds held in the Operating Account, insurance premiums and any costs or expenses with respect to the insurance described in this Article shall be an Operating Expense of the RSPD. Any reserves, losses, costs, damages or expenses which are uninsured, or fall within deductible limits or self-insured retentions, shall be treated as a cost of insurance and shall be an Operating Expense. 9.5 Coverage. All insurance described in this Article may be obtained by endorsement or equivalent means under Managers or Owners blanket insurance policies, provided that such blanket policies substantially fulfill the requirements specified herein. 9.6 Policies and Endorsements.
(a) Where permitted, all insurance provided under this Article shall be carried in the name of Owner, with additional insureds being Manager, the owner of any fee or leasehold interest in the RSPD other than Owner, and the holder of the security Item # 15
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deeds covering the RSPD, if any; any losses thereunder shall be payable to the parties as their respective interests may appear. The party procuring such insurance shall deliver to the other party certificates of insurance with respect to all policies so procured, including existing, additional and renewal policies and, in the case of insurance about to expire, shall deliver certificates of insurance with respect to the renewal policies not less than ten (10) days prior to the respective dates of expiration. (b) All policies of insurance provided under this Article shall, to the extent obtainable, have attached thereto an endorsement that such policy shall not be canceled without at least ten (10) days prior notice to Owner, Manager, any other fee or leasehold owner of any portion of the RSPD, and any holder of indebtedness secured by the RSPD. (c) Owner and Manager agree that with respect to any loss or claim which is covered by insurance then being carried or required to be carried by them under this Agreement, the party suffering such loss or claim and carrying or required to carry such insurance releases the other of and from any and all claims, defense costs and expenses with respect to such loss or claim. Owner and Manager further agree that each of their insurance policies shall provide for an appropriate waiver of subrogation reflecting this release. 9.7 Indemnification.
(a) Indemnification by Owner. Owner shall indemnify, defend, and hold harmless Manager, its parent, its subsidiaries, and its affiliates and their respective officers, directors, agents, and employees, from and against any and all claims, liabilities, losses, damages, costs, and expenses of any kind or character, including without limitation indemnity claims , court costs, reasonable attorneys fees, interest, fees, and penalties, arising from or related to the management, operation, or maintenance of the RSPD, in all cases to the fullest extent permitted by law, except to the extent such liabilities are finally determined by a court of competent jurisdiction to have been the result of the fraud or gross negligence of Managers corporate office senior management personnel in the management, operation, or maintenance of the RSPD. (b) Indemnification by Manager. Manager shall indemnify and hold harmless Owner, its subsidiaries, and its affiliates, and their respective officers, directors, agents, and employees from and against any and all claims, liabilities, losses, damages, costs, and expenses of any kind or character, including without limitation reimbursement of court costs, reasonable attorneys fees, interest, fees, and penalties charged to the RSPD, to the extent such liabilities are finally determined by a court of competent jurisdiction to have been the result of the fraud or gross negligence of Managers corporate office personnel in the management, operation, or maintenance of the RSPD. (c) Defense Costs. All costs and expenses, including without limitation reasonable attorneys fees, of any legal proceeding that is instituted against the RSPD, Manager, or both related to the operation, management, or maintenance of the RSPD, including without limitation any employment-related claims of any nature, shall Item # 15
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be charged as Operating Expenses or paid directly by Owner; provided, however, that Manager shall reimburse Owner on demand to the extent the fraud or gross negligence of the Managers corporate office senior management personnel in the management, operation, or maintenance of the RSPD is established in such proceeding. Owner specifically acknowledges and agrees that any partys mere allegation or claim of a negligent or intentional act by Manager or any officer, director, agent, or employee thereof does not trigger any obligation of Manager under this Section and that, pending the determination of any question as to whether Manager or any of its officers, directors, agents, or employees are entitled to indemnification under this Section, Manager shall be entitled to charge as Operating Expenses and pay from Operating Account all expenses of defending or otherwise handling any claim or litigation under this Agreement. (d) Good-faith Judgment. Notwithstanding any other provision of this Agreement, Owner shall not make any claim against Manager based on any alleged error of judgment if such judgment was made by Manager in good faith or based on any action taken by Manager at the express direction of Owner. (e) Survival. This Section shall survive Termination. ARTICLE X GENERAL PROVISIONS 10.1 Actions of a Party. Except for any amendment of this Agreement or approval of an Annual Plan pursuant to Article VII hereof, each the Owner and the Manager shall designate an individual in the Annual Plan to serve as the authorized designee of a party, with respect to all other matters hereunder, who is authorized to take any other actions for that party, as may be required from time to time hereunder; provided, however, that a party may change its designee at any time by a written notice to the other party. Unless the authorization conferred by a designation is expressly limited by its terms, such authorization may be presumed to authorize designee to act in behalf of a party for all other purposes of this Agreement. 10.2 Inspection of RSPD. Owner and its agents, employees, and designees may go anywhere in the RSPD upon reasonable advance written notice to the Manager for the purposes of inspecting the RSPD and inspecting the performance by Manager of the terms and conditions hereof. Manager shall facilitate the access permitted under this Section upon request. 10.3 Amendments. The terms, covenants, conditions, and provisions of this Agreement may be modified or added to only in a writing signed by the parties hereto provided, in addition, there shall have been delivered to Owner an Approving Tax Opinion. 10.4 Time of the Essence. Time is of the essence.
10.5 Notices. All notices hereunder or required by law shall be sent (a) via US Mail, postage prepaid, certified or registered mail, return receipt requested; or (b) via any Item # 15
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nationally recognized commercial overnight carrier with provisions for a receipt, in either case addressed to the parties hereto at their respective addresses or numbers set forth below or as they will have theretofore specified by notice delivered in accordance herewith: In case of the City to: Augusta-Richmond County City County Municipal Building 530 Greene Street Augusta, Georgia 30901 Attn: City Administrator In the case of Manager to: Augusta Riverfront, LLC One 10th Street, Riverfront Center Suite 340 Augusta, Georgia 30901 Attn: Mr. Paul S. Simon With a copy to: Augusta-Richmond County Legal Department 530 Greene Street Augusta, Georgia 30901 Attn: General Counsel With a copy to: Hull Barrett, PC 801 Broad Street, 7th Floor Augusta, Georgia 30901 Attn: Rand Hanna
10.6 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by the parties hereto. In the event of a conflict between any provision in this Agreement and in the TEE Center RSPD CORE Agreement, this Agreement shall control. 10.7 Severability. If any provision of this Agreement or its application to any party or circumstances will be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, will not be affected thereby, and each provision hereof will be valid and will be enforced to the fullest extent permitted by law. 10.8 Computation of Time. The time in which any act under this Agreement is to be done shall be computed by excluding the first day and including the last day. If the last day of any time period stated herein shall fall on a Saturday, Sunday or legal holiday, then the duration of such time period shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sunday or legal holiday. Unless preceded by the word business, the word day shall mean a calendar day. The phrase business day or business days shall mean those days on which the Superior Court of AugustaRichmond County, Georgia is located is open for business. 10.9 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia. 10.10 Waiver. The failure of either party to insist upon a strict performance of any of the terms or provisions of this Agreement or to exercise any option, right or Item # 15
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remedy herein contained, shall not be construed as a waiver or as a relinquishment for the future of such term, provision, option, right or remedy, but the same shall continue and remain in full force and effect. No waiver by either party of any term or provision hereof shall be deemed to have been made unless expressed in writing and signed by such party and an Approving Tax Opinion shall have been delivered to Owner. 10.11 Force Majeure. At Managers option, Managers performance under this Agreement shall be suspended to the extent Manager shall be delayed or hindered in or prevented from the performance of any act required by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, terrorism, insurrection, war or other reason of a like nature not the fault of Manager. 10.12 Headings. Headings of Articles and Sections are inserted only for convenience and are in no way to be construed as a limitation on the scope of the particular Articles or Sections to which they refer. 10.13 Third Party Beneficiaries. Except with respect to Caterer, this Agreement shall not inure to the benefit of any third parties. [EXECUTION ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the day and year first above written.
Augusta, Georgia By:________________________ Its Mayor Attest:______________________ Its Clerk of Commission (Seal)
Augusta Riverfront, LLC, a Georgia limited liability company By:________________________ Paul S. Simon As its President (Seal)
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ASSIGNMENT OF PARKING DECK MANAGEMENT AGREEMENT THIS ASSIGNMENT OF PARKING DECK MANAGEMENT AGREEMENT (this Assignment) is made as of the __ day of ______________________, 2012, by AUGUSTA RIVERFRONT, LLC, a Georgia limited liability company (Borrower), to and for the benefit of WELLS FARGO BANK, N.A., a national banking association (Lender), and consented and agreed to by THE CITY OF AUGUSTA, GEORGIA (City). RECITALS: A. Lender (as successor-by-merger to Wachovia Bank, National Association, a national banking association) has heretofore made certain loans (collectively referred to herein as the Loans) to Borrower, which Loans are governed by, among other things, that certain Loan Agreement dated September 27, 2005 entered into by and among Lender, Borrower and Guarantor (as defined in the Loan Agreement [defined below]), as said Loan Agreement has been amended by that certain First Modification of Loan Agreement by and among Lender, Borrower and Guarantor dated February 17, 2006, and as said Loan Agreement has been further amended by that certain Second Modification of Loan Agreement by and among Lender, Borrower and Guarantors dated August 23, 2007 (said Loan Agreement, as so amended, is hereinafter referred to as the Loan Agreement). B. The Loans are evidenced by (i) that certain Promissory Note dated September 27, 2005 made by Borrower payable to the order of Lender in the original principal amount of $78,500,000.00 and (ii) that certain Promissory Note dated February 17, 2006 made by Borrower payable to the order of Lender in the original principal amount of $13,500,000.00 (collectively, the Note). The Loans previously included a revolving loan evidenced by a Second Amended and Restated Promissory Note from Borrower payable to the order of Lender dated August 23, 2007 in the maximum principal amount of $7,000,000.00, which revolving loan has since matured and has been satisfied and cancelled, with Borrower having no further right to reborrow thereunder. C. The Note and Borrowers obligations under the Loans are secured, in part, by that certain Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement dated September 27, 2005 made by Borrower to Lender, recorded in the real estate records of Richmond County, Georgia (the Official Records), at Book 01019, Page 1272, as the same has been amended by that certain First Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and First Modification of Assignment of Rents and Leases dated February 17, 2006 between Borrower and Lender and recorded in the Official Records at Book 01041, Page 2150, and as further amended by that certain Second Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and Second Modification of Assignment of Rents and Leases dated August 23, 2007 between Borrower and Lender and recorded in the Official Records at Book 01141, Page 2129 (said Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement, as so amended, and as the same may hereafter be amended, hereinafter collectively referred to as the Borrower Security Instrument), which Borrower Security Instrument encumbers certain real and personal property owned by Borrower as more particularly described therein, including, but not limited to, the Augusta Mariott and the Augusta Marriott Suites hotels (the Hotels) (such real and personal property owned by Borrower hereinafter referred to collectively as the Borrowers Property). D. Borrowers obligations under the Loans are also secured by, among other things, a Guaranty Agreement from 933 Broad Investment Co, LLC, a Georgia limited liability company (933 Broad Guarantor), which is an affiliate of Borrower. The Guaranty Agreement from 933 Broad is secured by 1
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that certain Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing dated as of September 27, 2005, made by 933 Broad Guarantor for the benefit of Lender (as successor-by-merger to Wachovia Bank, National Association, a national banking association) and recorded October 14, 2005 in the Official Records in Book 01019, Page 1326, as modified and amended by that certain First Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and First Modification of Assignment of Rents and Leases dated February 17, 2006 and recorded in the Official Records on March 2, 2006 in Book 0104, Page 2155, as modified and amended by that certain Second Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and Second Modification of Assignment of Rents and Leases dated August 23, 2007 and recorded in the Official Records on September 7, 2007 in Book 01141, Page 2119 (Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, as so amended, and as the same may hereafter be amended, hereinafter collectively referred to as the 933 Broad Security Deed). E. The 933 Broad Security Deed encumbers certain real and personal property owned by 933 Broad Guarantor (the 933 Broad Property) which is in the vicinity of the Hotels, including, but not limited to, an office building and certain adjacent property, on some of which adjacent property a parking garage commonly referred to as the Reynolds Street Parking Deck (the RSPD) is now located. F. Contemporaneously with the execution and delivery of this Assignment, Borrower and 933 Broad Guarantor are entering into certain transactions and agreements relating to the RSPD (collectively, the Parking Garage Transactions), and in connection therewith, Borrower and Guarantor have requested that Lender (i) release certain of the 933 Broad Property from the encumbrances of the Loan in return for appurtenant easement rights with respect to the RSPD and (ii) make certain other modifications and amendments to the terms of the Loans (collectively, the Loan Modification), such Parking Garage Transactions and Loan Modification being more particularly described in and evidenced by that certain Omnibus Agreement (933 Broad Parking Lot Matters) of even date herewith entered into by and among Borrower, Guarantor and Lender. G. As a part of the Parking Garage Transactions, Borrower, as manager, and City, as owner, are entering into that certain Reynolds Street Parking Deck Management Agreement of even date herewith (the Management Agreement), pursuant to which the City has engaged Borrower to manage the RSPD pursuant to the terms and conditions of the Management Agreement. H. As one of the conditions to Lenders consent to the Loan Modification, Lender has required that Borrower enter into this Assignment with respect to the Management Agreement, with the consent and agreement of the City. I. Borrower desires to enter into this Assigment for the purpose of inducing Lender to consent to the Loan Modification, and the City has executed this Assigment for the purpose of (i) evidencing its consent to the assignment by Borrower to Lender of the Management Agreement pursuant to the terms of this Assignment and (ii) agreeing to be bound by the terms and provisions of Section 10 of this Assignment. AGREEMENT NOW, THEREFORE, in consideration of the Loan and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower agrees as follows: 1. Definitions. Capitalized terms used but not defined in this Assignment are defined in the Loan Agreement.
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2. Assignment. As security for the Note and all other obligations and agreements of Borrower with respect to the Loans (the Obligations), Borrower assigns to Lender and grants Lender a security interest in and to all of Borrowers right, title and interest in and to the Management Agreement, including the right to collect and retain all sums that may become payable to Borrower under the Management Agreement. 3. Performance by Borrower. Notwithstanding such assignment, Borrower shall continue to be obligated to perform its obligations under the Management Agreement to the same extent as though this Assignment had not been made. By acceptance of this Assignment, Lender is not assuming any obligation of Borrower under the Management Agreement. 4. Authority of Lender. Upon the occurrence of an Event of Default under the Loan Documents, Borrower does hereby authorize and empower Lender to enforce the Management Agreement, to exercise any and all rights of Borrower thereunder, and to collect and retain all sums that may become payable to Borrower under the Management Agreement and Borrower does hereby direct and authorize each and all of the contractual obligors of Borrower under the Management Agreement to (i) pay to Lender all amounts that may become payable under the Management Agreement and (ii) to perform any obligations on its or their part to be performed under the Managmeent Agreement, upon demand for performance thereof by Lender. Borrower shall have no claim against the City for any amounts paid by the City to Lender following demand by Lender. 5. Power. The sole signature of Lender shall be sufficient for the exercise of any rights under this Assignment. 6. Representations. Borrower hereby covenants and warrants that it has not executed any prior assignment or pledge of the Management Agreement, nor performed any act or executed any other instrument which might prevent Lender from operating under any of the terms and conditions of this Assignment, or which would limit Lender in such operation. 7. Restrictions. Borrower hereby agrees that so long as any of the Obligations remain outstanding, without the prior written consent and approval of Lender in each instance, Borrower will not assign, pledge, hypothecate or otherwise encumber any of its rights under the Management Agreement. 8. Other Obligations. Borrower agrees that at its sole cost and expense it (i) will duly and punctually perform and comply in all material respects with any and all representations, warranties, covenants, terms and provisions to be performed or complied with by it under the Management Agreement; (ii) will not terminate or amend any material terms or provisions of the Management Agreement without the prior written consent of Lender; (iii) will give notice to Lender of any notice received by Borrower of any default by Borrower under the terms of the Management Agreement or which indicates that the City is terminating the Management Agreement. 9. No Obligation of Lender; Liability of Lender; Indemnification. Lender shall not, by reason of this Assignment or the exercise of its rights or remedies hereunder, (a) be obligated to perform or discharge, or be liable or responsible for, any obligation, duty or liability of Borrower under the Management Agreement; or (b) be liable to governmental authorities, contractors or any parties under the Management Agreement by reason of any default by any party under the Management Agreement; or (c) be obligated to take any action under or with respect to the Management Agreement or to incur any expense with respect to the Management Agreement or the RSPD; or (d) be obligated to appear in or defend any action or proceeding relating to the Management Agreement or the RSPD; or (e) be, or be construed to be, a mortgagee in possession of the RSPD or any part thereof; or (f) be liable in any way for 3
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any injury or damage to person or property sustained by any person in or about the RSPD; or (g) be responsible or liable for the control, care, management or repair of the RSPD or any waste committed on the RPSD by contractors or any other parties under the Management Agreement or any other parties or for any dangerous or defective condition of the RSPD, or for any negligence in the management, upkeep, repair or control of the RSPD resulting in loss, injury or death to any party under the Management Agreement or any tenant, licensee, employee, or stranger with respect to the RSPD. Except to the extent of any Claims (defined below) directly resulting from Lender's gross negligence or willful misconduct, Borrower hereby agrees to indemnify and hold Lender harmless from and against, and reimburse Lender for, all claims, demands, liabilities, losses, damages, causes of action, judgments, penalties, costs, and expenses (including without limitation, reasonable attorneys fees) ("Claims") which may be imposed upon, asserted against or incurred or paid by Lender by reason of this Assignment or the exercise of its rights or remedies hereunder. For purposes of this Section, the term Lender shall include the directors, officers, partners, employees and agents of Lender and any persons or entities owned or controlled by, owning or controlling, or under common control or affiliated with Lender. The foregoing releases and indemnities shall not terminate upon release or other termination of this Assignment. Any amount to be paid under this Section by Borrower to Lender shall be a demand obligation owing by Borrower to Lender, shall bear interest from the date such amount becomes due until paid at the Default Rate (as defined in the Note) and shall be secured by the Borrower Security Instrument, the 933 Broad Security Instrument and by any other instrument securing the Note. 10. Agreement of Borrower and the City Regarding the RSPD. Borrower and the City agree that, in the event, for any reason, Lender or any other party acquires the Borrowers Property and/or the 933 Broad Property pursuant to a foreclosure of any or all of the Borrowers Property and/or the 933 Broad Property, either judicially or by power of sale or by deed-in-lieu of foreclosure or by any other means (any of the foregoing hereinafter referred to as a Succession; and Lender or any other party succeeding to the interest of Borrower or 933 Broad Guarantor (or either of them) pursuant to a Succession being hereinafter referred to as a Successor), all of the easements, rights and obligations of Borrower created pursuant to the Management Agreement (collectively, the Management Rights) shall, if foreclosed by Lender and elected by Successor (it being understood that Successor shall have no obligation to so elect) as evidenced by written notice from Successor to the City of such election delivered within ten (10) business days following such Succession, be binding upon and shall inure to the benefit of Successor; provided, however, that the consent of the City shall be required prior to Successors succession to the Management Rights, which consent shall not be withheld, conditioned or delayed so long as such Successor, or its designee, shall have, in the reasonable discretion of the City, expertise, personnel and other resources sufficient to discharge the Management Rights no less favorably than Borrower has performed same. Borrower, and the City further agree that in the event that the City does not consent to Successors succession to the Management Rights within fifteen (15) Business Days (defined below) following receipt by the City of Successors election to assume the Management Rights (the Outside Date), then, effective as of the Outside Date, the Management Agreement and the Management Rights created pursuant to the Management Agreement shall terminate and be of no further force and effect, and the City and Borrower agree that neither Borrower nor any affiliate of Borrower will thereafter be engaged to manage or otherwise operate or control the RSPD until all Obligations under the Loans have been paid and satisfied in full. 11. Further Assurances. Borrower agrees from time to time to execute, acknowledge and deliver all such instruments and to take all such action for the purpose of further effectuating this Assignment and the carrying out of the terms hereof as may be requested by Lender. 12. No Release. Neither the execution of this Assignment nor any action or inaction on the part of Lender under this Assignment shall release Borrower from any of its obligations under the 4
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Management Agreement or constitute an assumption of any such obligations on the part of the Lender. No action or failure to act on the part of Borrower shall adversely affect or limit, in any way, the rights of Lender under this Assignment or, through this Assignment, under the Management Agreement. Neither the existence of this Assignment nor the exercise of Lenders privilege to collect or enforce the Management Agreement hereunder shall be construed as a waiver by Lender or its successors and assigns of the right to enforce payment of the Obligations in strict accordance with the terms and provisions of the Note and other Loan Documents. 13. Notices. All notices or other written communications hereunder shall be deemed to have been properly given (i) upon delivery, if delivered in person or by facsimile transmission with receipt acknowledged by the recipient thereof, (ii) one (1) Business Day (hereinafter defined) after having been deposited for overnight delivery with any reputable overnight courier service, or (iii) three (3) Business Days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
In case of the City to: Augusta-Richmond County City County Municipal Building 530 Greene Street Augusta, Georgia 30901 Attn: City Administrator In the case of Borrower to: Augusta Riverfront, LLC One 10th Street, Riverfront Center Suite 340 Augusta, Georgia 30901 Attn: Mr. Paul S. Simon In the case of Lender to: Wells Fargo, Bank, N.A. 2030 Main Street, Suite 800 Irvine, California 92614 Attention: Kim Taylor, Loan Administrator
With a copy to: Augusta-Richmond County Legal Department 530 Greene Street Augusta, Georgia 30901 Attn: General Counsel With a copy to: Hull Barrett, PC 801 Broad Street, 7th Floor Augusta, Georgia 30901 Attn: Rand Hanna
With a copy to: Seyfarth Shaw LLP 1075 Peachtree Street, N.E. Suite 2500 Atlanta, Georgia 30309 Attention: Paul M. Baisier, Esq.
or addressed as such party may from time to time designate by written notice to the other parties. For purposes of this Assignment, the term Business Day shall mean a day on which commercial banks are not authorized or required by law to close in New York, New York. Any party by notice to the others may designate additional or different addresses for subsequent notices or communications. 14. General Provisions.
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(a) (b)
This Assignment shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. This Assignment is a Loan Document as defined in the Loan Agreement.
(c) This Assignment shall be deemed to be a contract entered into pursuant to the laws of the State of Georgia and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of Georgia.
15. WAIVER OF JURY TRIAL. BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM FILED BY BORROWER OR LENDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS ASSIGNMENT, THE LOAN EVIDENCED BY THE NOTE, THE LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER IN CONNECTION THEREWITH.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Borrower caused this Assignment to be executed as of the day and year first above written. BORROWER:
AUGUSTA RIVERFRONT, LLC, a Georgia limited liability company
By: ______________________________ Name: ______________________________ Title: ______________________________
[CONSENT AND AGREEMENT OF CITY SIGNATURE PAGE FOLLOWS]
Borrower Signature Page Augusta Riverfront, LLC Assignment of Parking Deck Management Agreement
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CONSENT AND AGREEMENT OF CITY
By its execution below, the City of Augusta, Georgia joins in the execution of this Assignment for the purpose of evidencing its consent to the foregoing Assignment of Parking Deck Management Agreement (Assignment) by Augusta Riverfront, LLC to and for the benefit of Wells Fargo Bank, N.A., and to evidence its agreement to be bound by the the provisions of Section 10 of the foregoing Assignment.
CITY:
AUGUSTA, GEORGIA
By: Its Mayor
Attest: Its Clerk of Commission [SEAL]
City Signature Page Augusta Riverfront, LLC Assignment of Parking Deck Management Agreement
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Hull Barrett Draft 5/16/12 Version 4
___________________________________________________________________________________ Space above this line for recorders use
DEED TO AIR RIGHTS PARCEL THIS INDENTURE, made this ___ day of ____________, 2012, by and between 933 BROAD INVESTMENT CO., LLC, a Georgia limited liability company, as party of the first part (herein called Grantor), and AUGUSTA, GEORGIA, a public body corporate and politic of the State of Georgia, as party of the second part (herein called Grantee) (the words Grantor and Grantee shall include their respective heirs, successors and assigns where the context requires or permits); W I T N E S S E T H: GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien, convey and confirm unto said Grantee, all those property rights lying and being in Augusta, Richmond County, Georgia, and being more particularly described on Exhibit A attached hereto and by this reference made a part hereof, together with any and all improvements, and fixtures located thereon or attached thereto, and all rights, easements and benefits appurtenant thereto (hereinafter referred to as the Property), subject to current taxes and assessments not yet due and payable, all easements, rights of way, covenants, conditions, restrictions, and other matters of record, zoning ordinances, rights of tenants and parties in possession and any state of facts that would be disclosed by a current accurate survey of the Property ("Permitted Encumbrances"). TO HAVE AND TO HOLD the Property to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE.
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EXECUTED under seal the day and year first above written. 933 BROAD INVESTMENT CO., LLC, a Georgia limited liability company
By:________________________ Paul S. Simon As its President (Seal)
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Exhibit A
The exclusive and perpetual right of possession and occupancy of, the exclusive and perpetual right to floor and to cover over and to build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 151.05 feet above mean sea level and below a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described as follows: All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. Grantor reserves title to all portions of said Tract 3 not contained within the air space described above. Portion of TMP Nos. 037-3-066-01-0; 037-3-066-00-0; 037-3-177-00-0; 037-3-069-00-0; and 037-3070-00-0.
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Version 10 Hull Barrett Comments 1-6-12
CONFERENCE CENTER PARKING LEASE BETWEEN AUGUSTA, GEORGIA a political subdivision of Georgia, AS LANDLORD AND AUGUSTA RIVERFRONT, LLC a Georgia limited liability company, AS TENANT
DATED AS OF _________________, 2012
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CONFERENCE CENTER PARKING LEASE THIS CONFERENCE CENTER PARKING LEASE (this Lease) is entered into as of the ____ day of ____________, ___________ (the Effective Date), by and between Augusta, Georgia, a political subdivision of Georgia, as landlord (Landlord), and Augusta Riverfront, LLC, a Georgia limited liability company, as tenant (Tenant). 1. LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby takes from Landlord in consideration of the covenants and agreements in this Lease, the premises (the Demised Premises) located north of Reynolds Street, between 9th and 10th Streets in Augusta, Georgia, and consisting of (i) the surface parking lot located on Parcel N containing 1.89 acres, more or less, on that Compiled Map for Augusta Riverfront Limited Partnership by John Thomas Attaway, Georgia RLS No. 2512, dated January 19, 1999, revised June 1, 1999, and recorded in the Office of the Clerk of Superior Court of Augusta-Richmond County, Georgia on June 22, 1999, in Reel 648, pages 39-44, and (ii) that parking deck containing approximately _____ parking spaces and being located on a portion of Parcels P and P-1 on said Compiled Map, together with all improvements located thereon. 2. OPERATING TERM AND USE. The initial term of this Agreement (the Operating Term) shall be for a period commencing on the Effective Date and terminating on the five (5) year anniversary of the Effective Date. Notwithstanding the foregoing, this Agreement shall be binding on the date it is signed by Landlord and Tenant and provisions of this Agreement shall survive the Operating Term to the extent specifically set forth in this Agreement. Landlord, in its sole discretion, may elect, by written notice to Tenant, within 60 days from the expiration of the initial Operating Term of this Agreement, to renew the initial Operating Term of this Agreement, for an additional term of five (5) years. In the event that Landlord does not elect to renew the term of this Agreement and solicits requests for proposals (RFP) for the operation of the Demised Premises, then in such event Tenant has have the right to meet the terms and conditions of the RFP of the entity that is deemed to be most qualified to operate the Demised Premises, If Tenant agrees to the terms and conditions contained in such RFP, then this Agreement shall be renewed, subject to modification to incorporate any terms and conditions consistent with accepted RFP, and right of first refusal shall be continue in effect. Should Tenant not elect to operate the Demised Premises pursuant to the terms and conditions of the accepted RFP, then in such event Tenant shall have no further right to operate the Demised Premises or the parking deck owned by Landlord and located at the northwestern intersection of Reynolds Street and James Brown Boulevard in Augusta, Georgia (the RSPD) [upon expiration of the Reynolds Street Parking Deck Management Agreement of even date entered into by and between Landlord and Augusta Riverfront, LLC (the RSPD Agreement)], notwithstanding any prior vote of the Augusta, Georgia Commission to designate Augusta Riverfront, LLC as the operator of the Demised Premises or the RSPD. Tenant may use the Demised Premises as parking deck open to the public and/or exclusively for the use of Convention Center guests and its hotel patrons, and no other (the Permitted Uses).
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3.
RENT AND ACCEPTANCE OF DEMISED PREMISES.
For purposes of this section Operating Income shall mean the gross revenues generated from the operation of the Demised Premises including, but not limited to, the following: (a) sums collected by the Tenant from the rental of space for the parking and storage of motor vehicles whether on an hourly, daily, weekly, or monthly basis, less all refunds, and credit card fee discounts (sales tax, use tax, excise tax, occupancy tax, gross receipts tax, or other taxes assessed upon or attributable to said receipts shall be paid directly to the taxing entity involved and are not be included in the definition of gross revenues); (b) on-site advertising revenues; (c) reimbursable event expenses; (d) all other miscellaneous revenue from the operation of the Demised Premises; and (e) any and all revenues generated by or associated with any marquee advertising (if such advertising is permitted by Landlord). For purposes of this section Operating Expenses shall mean all expenses required to be incurred in order to operate and manage the Demised Premises, including, but not limited to the following: (a) salary costs of employees of Tenant (so long as such salary costs are commensurate with the salary costs (as such term as defined in that certain RSPD Agreement) associated with the operation of the RSPD and Shared Employees (as such term is defined in the RSPD Agreement); (b) operating supplies; (c) utility and telephone charges; (d) repair and maintenance costs; (e) equipment rental costs; (f) insurance costs related to the operation of the Demised Premises (but not performance or fidelity bonds); (g) security costs; (h) cleaning expenses; (i) cost of reimbursable event expenses; (j) the cost of obtaining an audited financial statements required hereunder; (k) maintenance agreements; and (l) any other expenses incurred in the operation of the Demised Premises that would be considered operating expenses under GAAP. Operating Expenses shall not include debt service on any borrowing. For purposes of this section Net Income shall be calculated as Operating Income less Operating Expenses. A. Base Rent. During the term of this Agreement and any extensions, Tenant shall pay to Landlord an annual rental of $50,000.00, payable in equal monthly installments the first of such installments being due and payable on the Effective Date. Such annual rent shall be adjusted annually on the anniversary of the Effective Date, upward but not downward, by the lesser of (i) one half (1/2) of the cumulative percentage increase in the Consumer Price Index for all urban consumers (CPI-U) (All Items 1982-84=100) since the last rate increase at the RSPD, or (ii) the percentage increase in maximum daily parking rates during such year for parking spaces in the RSPD. B. Tenant Income. After payment of Base Rent and Operating Expenses, Tenant shall be entitled to receive the lesser of all of the Net Income from the operation of the Demised Premises or $25,000.00. C. Additional Rent. In addition to the Base Rent and after payment of the Operating Expenses and the Tenant Income, Tenant shall pay to Landlord as additional rent an amount equal to the lesser of (i) the operating loss from the operation of the RSPD, if any, or (ii) Net Income in excess of Base Rent and Tenant Income.
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D. Surplus Income. In the event that there remains Net Income after payment of the Base Rent, Operating Expenses, Tenant Income, and Additional Rent, such remaining Net Income will be divided equally between Landlord and Tenant. E. Financial Statements.
(a) In order to determine Net Income, Tenant shall prepare and deliver to Landlord by the 90th day after the end of each calendar year during the term of this Agreement the following financial statements and reports for the operation of the Demised Premises for the previous calendar year, which shall be in reasonable detail and shall be prepared in accordance with GAAP: (i) balance sheet as of the last day of such calendar year (ii) cash flow statement, and (iii) profit and loss statement. The profit and loss statement will include a comparison to the prior calendar year and a comparison to the budgeted amounts for the prior calendar year. (b) On or prior to 120 days after the end of each calendar year, Tenant shall provide, at Tenants cost and expense, a financial audit with respect to the operations of the Demised Premises for the previous calendar year to be made by an independent certified accounting firm selected by Tenant and approved by Landlord, with such approval not to be unreasonably withheld. 4. DEMISED PREMISES REPAIRS AND MAINTENANCE.
A. Landlord represents and warrants that during the Term, Landlord shall maintain the structure of the Demised Premises, at its sole cost and expense, in good condition and shall perform all necessary maintenance, repair, and replacement to the Demised Premises including, but not limited to: (i) maintaining the integrity of the structure and surface of all paved areas such that there are no pot holes or other conditions that may compromise its utility or safety of the Demised Premises; (ii) maintaining the foundation, floors, walls, all exterior utility lines and pipes to the point of entry into the Demised Premises; (iii) maintaining all other structural portions of the Demised Premises; and (iv) making any other repair or replacement that is considered to be capital in nature under Generally Accepted Accounting Principles. All repairs, restorations, or payments which are obligations of Landlord, shall be completed or made within a reasonable time. Landlord has the right but not responsibility to enter the Demised Premises periodically, at any reasonable time during Tenants normal business hours, and upon reasonable advance notice to Tenant, to inspect the condition of the Demised Premises and to make repairs. Any repairs or other work done by Landlord shall be performed so as to cause the least interference possible with Tenants operation. B. Tenant shall be responsible for re-striping of the deck and surface parking areas, maintenance and repair of traffic control devices, cleaning of the parking areas, landscaping of grassed and unpaved areas, and routine maintenance and repair of a non-capital nature under Generally Accepted Accounting Principles. All repairs, restorations, maintenance or payments which are obligations of Tenant shall be completed or made within a reasonable time. For purposes of this paragraph, pro-rata share means the proportion of (i) the number of parking spaces in the parking deck on Demised Premises to (ii) the total number of parking spaces in the RSPD plus the number of parking spaces in the parking deck on the Demised Item # 15
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Premises combined. With respect to software costs for traffic control devices, Landlord shall pay the same in connection with the RSPD, and Tenant shall reimburse the pro-rata share of such costs. With respect to any leased equipment used for the Demised Premises and the RSPD, Tenant shall pay the pro-rata share of such lease payments. With respect to any equipment owned by Landlord but used for both the RSPD and the Demised Premises, Tenant shall pay a fair rental rate for the use of said equipment, as set forth in the Annual Plan in effect for the RSPD Management Agreement. 5. FIXTURES AND EQUIPMENT. Landlord shall deliver the Demised Premises with lighting, electrical and traffic control equipment in good working condition. 6. INSURANCE AND INDEMNIFICATION
6.1 General Liability Insurance. Tenant shall carry comprehensive general liability insurance, including contractual liability, personal and bodily injury, and property damage insurance, on the Demised Premises, with a combined single limit in an amount sufficient to protect Landlord and Tenant, but in no event will such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. Landlord shall be named as an additional insured under such insurance. Tenant shall provide Landlord with a certificate of insurance evidencing such coverage no later than 10 days prior to the commencement of the Operating Term. Tenants insurance shall contain a clause stating that there shall be no reduction, cancellation, or non-renewal of coverage without giving Landlord thirty (30) days prior written notice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and not contributory to any similar insurance carried by Landlord, and shall contain a severability of interest clause. 6.2 Property Insurance. Landlord shall maintain property insurance with respect to the Demised Premises in accordance with Section 4.5 of the Amended and Restated Construction, Operating and Reciprocal Easement Agreement dated June 1, 1999, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia at Realty Reel 648, page 45, as amended by that First Amendment to Amended and Restated Construction, Operating and Reciprocal Easement Agreement dated December 20, 1999, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia at Book 673, page 711 (the CORE Agreement) . 6.3 insurance: Operational Insurance. Tenant shall procure and maintain the following
6.3.1 Workers Compensation and employers liability insurance as may be required under applicable laws covering all Tenants Employees, including Shared Employees, with such deductible limits as allowed by law; 6.3.2 Garage keepers legal liability insurance to insure against theft, loss and damage to patrons vehicles. 6.3.3 Such other insurance and/or additional coverage in amounts as Tenant in its reasonable judgment deems advisable for its protection against Item # 15
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claims, liabilities and losses arising out of or connected with its performance under this Agreement. 6.3.4 Tenant, at Tenants sole cost and expense, may, but shall not be obligated to, carry insurance insuring its trade fixtures, equipment, inventory and such other items as Tenant, from time to time, deems necessary or appropriate. 6.4 Cost and Expense. Each party will be responsible for the payment of insurance premiums it is required to obtain under the terms of the this agreement. In addition, Landlord shall have the right to self-insure or self-fund for any requirements provided herein. 6.5 Coverage. All insurance described in this Article may be obtained by endorsement or equivalent means under Landlords or Tenants blanket insurance policies, provided that such blanket policies substantially fulfill the requirements specified herein. 6.6 Policies and Endorsements.
6.6.1 Where permitted, all general liability and operational insurance provided under this Article shall be carried in the name of Tenant, with additional insureds being Landlord, the owner of any fee or leasehold interest in the Demised Premises other than Landlord, and the holder of the security deeds covering the Demised Premises, if any; any losses thereunder shall be payable to the parties as their respective interests may appear. The party procuring such insurance shall deliver to the other party certificates of insurance with respect to all policies so procured, including existing, additional and renewal policies and, in the case of insurance about to expire, shall deliver certificates of insurance with respect to the renewal policies not less than ten (10) days prior to the respective dates of expiration. 6.6.2 All policies of insurance provided under this Article shall, to the extent obtainable, have attached thereto an endorsement that such policy shall not be canceled without at least ten (10) days prior notice to Landlord, Tenant, any other fee or leasehold owner of any portion of the Demised Premises, and any holder of indebtedness secured by the Demised Premises. 6.6.3 Landlord and Tenant further agree that each of their insurance policies shall provide for an appropriate waiver of subrogation reflecting the mutual waiver of subrogation rights set forth in Section 20 of this Lease. 6.7 Indemnification. 6.7.1 Indemnification by Tenant. Tenant shall indemnify, defend, and hold harmless Landlord, its Mayor, Commissioners, administrators, agents, and employees, and successors from and against any and all claims, liabilities, losses, damages, costs, and expenses of any kind or character, including without limitation indemnity claims, court costs, reasonable attorneys fees, interest, fees, Item # 15
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and penalties, arising from or related to the management, operation, or maintenance of the Demised Premises, in all cases to the fullest extent permitted by law, except to the extent such liabilities are finally determined by a court of competent jurisdiction to have been the result of the fraud or gross negligence of Landlords Mayor, Commissioners, or senior management personnel in the management, operation, or maintenance of the Demised Premises. 6.7.2 Indemnification by Landlord. Landlord shall indemnify and hold harmless Tenant, its subsidiaries, and its affiliates, and their respective officers, directors, agents, and employees from and against any and all claims, liabilities, losses, damages, costs, and expenses of any kind or character, including without limitation reimbursement of court costs, reasonable attorneys fees, interest, fees, and penalties charged to the Demised Premises, to the extent such liabilities are finally determined by a court of competent jurisdiction to have been the result of the failure of Landlord to fulfill its obligations under this Lease or the fraud or gross negligence of Landlords Mayor, Commissioners or senior management personnel in the management, operation, or maintenance of the Demised Premises. 6.7.3 Defense Costs. All costs and expenses, including without limitation reasonable attorneys fees, of any legal proceeding that is instituted against the Demised Premises, Landlord, or both related to the operation, management, or maintenance of the Demised Premises, including without limitation any employment-related claims of any nature, shall be paid directly by Tenant; provided, however, that Landlord shall reimburse Tenant on demand to the extent the fraud or gross negligence of the Landlords Mayor, Commissioners or senior management personnel in the management, operation, or maintenance of the Demised Premises is established in such proceeding. Tenant specifically acknowledges and agrees that any partys mere allegation or claim of a negligent or intentional act by Landlord or any officer, director, agent, or employee thereof does not trigger any obligation of Landlord. 6.7.4 Good-faith Judgment. Notwithstanding any other provision of this Agreement, Landlord shall not make any claim against Tenant based on any alleged error of judgment if such judgment was made by Tenant in good faith or based on any action taken by Tenant at the express direction of Landlord. 6.7.5 Survival. This Section shall survive Termination.
7. ENTRANCES. Tenant shall have unrestricted use and access to all entrances, passageways, and access lanes to the Demised Premises and easements adjacent thereto. Landlord shall not permit or allow any changes to easements, the entrances, passageways, curb cuts and delivery lanes on or benefiting the Demised Premises without the prior written consent of Tenant.
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8. UTILITIES. Tenant shall pay for all utilities used by it in the Demised Premises during the Term of this Lease. 9. TAXES. The parties anticipate that ad-valorem property taxes will not be assessed with respect to the Demised Premises. In the event of such assessment, Tenant shall be responsible for payment of the same. Tenant shall be responsible for all taxes arising from Tenants use of the Demised Premises. 10. ASSIGNMENT AND SUBLETTING. This Agreement is not assignable by Tenant without the prior written consent of Landlord, except that Tenant shall have the right, without any prior written consent (but only upon not less than five (5) business days prior notice to Landlord), to assign this Agreement or any duties arising hereunder to any entity controlled by, or under common control with, Tenant, provided that in such case such transferee shall have, in the reasonable judgment of Landlord, expertise, personnel and other resources sufficient to discharge its duties hereunder no less favorably than Tenant has performed the same. Such assignment shall be effective only if the assignee or transferee agrees to be bound by all of Tenants obligations under this Agreement. In the event Tenant, including for this purpose any affiliate thereof, sells the hotels located adjacent to the Demised Premises to a third party, Landlord shall either (a) allow transferee to assume this Agreement and release Landlord from its obligations under this Agreement, or (b) terminate this Agreement. 11. SIGNS. No signs (other than directional or parking related signs) shall be affixed to the Demised Premises without the prior written consent of Landlord. 12. CONDITION OF PREMISES: COMPLIANCE WITH LAWS.
A. Tenant shall comply in all material respects with all Laws, as such term is defined below, related to Tenants particular use of the Demised Premises and with which only the occupant can comply, such as laws governing maximum occupancy, workplace smoking, and illegal business operations; the obligation to comply in every other case and also those cases where such Laws require repairs, alterations, changes or additions to the Demised Premises, or any part thereof, not caused by Tenants particular use thereof, is expressly assumed by Landlord. Notwithstanding anything to the contrary set forth in this Lease, Tenant shall not be required to construct or pay the cost of complying with any requirements resulting from Laws requiring construction of improvements in the Demised Premises which are properly capitalized under general accounting principles, unless such compliance is necessitated solely because of Tenants particular use of the Demised Premises. The term Laws shall mean all laws, statutes, governmental ordinances, rules and regulations and orders with respect to the use and occupancy of the Demised Premises of any municipal, county, state, federal, or other government agency or authority have jurisdiction over the parties to this Lease or the Demised Premises, or both, in effect either at the Effective Date of this Lease or any time during the Term. B. Landlord represents and warrants that at the commencement of the Term, the Demised Premises shall conform to all requirements of encumbrances to Landlords title, and all Laws applicable thereto.
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13. DAMAGE TO DEMISED PREMISES. Section 8.2 of the CORE Agreement is incorporated in this Lease by reference and shall govern issues of damage to the Demised Premises. 14. ALTERATIONS. Tenant agrees not to make any structural alterations or additions to the Demised Premises without first obtaining the Landlords written consent, which consent shall not be unreasonably withheld. 15. MECHANICS LIENS. Tenant shall not allow, and Landlord shall not be responsible for, any mechanics liens filed against the Demised Premises arising from work performed, or materials supplied to the Demised Premises by Tenant or Tenants agents, employees, contractors, subcontractors or materialmen. 16. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT. Tenant covenants that the Demised Premises will at all times, at Tenants sole cost and expense, conform to the applicable provisions of the Americans with Disabilities Act of 1990 (ADA) (Pub. L 101-36), and the ADA Accessibility Guidelines for Buildings and facilities as issued and amended by the U.S. Architectural and Transportation Barriers Compliance Board (56 F.R. 35455 et. seq.). Provided however, that changes, improvements or installations that would be considered capital in nature and not operational shall be paid by Landlord. By way of example, a change in the width of parking spaces or the number of handicap accessible spaces would be operational and the responsibility of Tenant, but the addition of ramps or changes in the width of doorways would be capital in nature and the responsibility of Landlord. 17. CONDEMNATION. In the event the Demised Premises are taken in Condemnation Proceedings, Tenant may cancel the Lease without further liability to Landlord. In the event any part of the Demised Premises, including all or part of rights-of-way adjoining the Demised Premises, or approaches to the Demised Premises, are taken in Condemnation Proceedings so that in the reasonable business judgment of Tenant the Demised Premises remaining would be unsatisfactory for Tenants business operation, Tenant may cancel this Lease or, at its option, retain that portion of the Demised Premises not taken. In the event Tenant retains the Demised Premises, Landlord will promptly and with due diligence restore the remaining premises to proper tenantable condition. Until the Demised Premises are restored to proper tenantable condition rent shall abate. Thereafter, rent shall be reduced in proportion to the amount of land and building area lost, or, if Tenant shall elect, in proportion to the effect of the loss of such area on Tenants business. In the event that the laws governing the Condemnation Proceedings provide separate compensation/benefits for lessees, Tenant shall be entitled to such compensation and/or benefits provided that it does not diminish any award or right to which Landlord is entitled. For purposes of this Lease, the term Condemnation Proceedings shall mean a governmental taking of all or any part of the Demised Premises, and shall include conveyances and grants made in anticipation of or in lieu of Condemnation Proceedings. 18. TENANTS DEFAULT. If Tenant defaults in the performance of any obligation under this Lease, Landlord shall give notice to Tenant specifying the nature of the default.
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A. If Tenant does not, within thirty (30) days after receipt of the notice, cure the default, or, if the default is of a nature that it cannot reasonably be cured within a period of thirty (30) days, and Tenant does not commence the cure within the thirty (30) day period and proceed thereafter with reasonable diligence and in good faith to cure the default, then after the expiration of the thirty (30) day period Landlord shall have the right to pursue its legal remedies. B. If Tenant does not, within fifteen (15) days after receipt of the notice, cure a default in the payment of rent or other charges properly due to Landlord, then after the expiration of the fifteen (15) day period Landlord shall give a second notice to Tenant, and if Tenant does not, within five (5) days after receipt of the second notice, cure the default, then after the expiration of the second five (5) day period Landlord shall have the right to pursue its legal remedies. 19. LANDLORDS DEFAULT. If Landlord shall be in default hereunder, Tenant, after thirty (30) days notice that Tenant intends to cure the default (or without notice if in Tenants reasonable judgment an emergency shall exist), Tenant shall have the right, but not the obligation, to cure the default, and Landlord shall pay to Tenant upon demand the cost thereof within ten (10) days. If Landlord does not make such payments to Tenant within ten (10) days, Tenant may offset the amount due from Landlord against any payments for rent or other payments due Landlord, if any, and pursue its legal remedies. Except when in Tenants reasonable judgment an emergency shall exist, Tenant shall not commence to cure any default of a nature that could not reasonably be cured within a period of thirty (30) days, provided Landlord shall have commenced to cure the default within the cure period and so long as Landlord proceeds with reasonable diligence and in good faith to cure the default. 20. MUTUAL WAIVER OF SUBROGATION RIGHTS. Landlord and Tenant and all parties claiming under them mutually waive, release and discharge each other from all rights of recovery, causes of action, claims and liabilities arising from or caused by any cause, casualty or hazard covered or required hereunder to be covered in whole or in part by insurance on the Demised Premises and waive any right of subrogation which might otherwise exist in or accrue to any person on account thereof. The foregoing waiver shall apply regardless of the cause or origin of the claim, including but not limited to, the negligence of a party or that partys agents, officers, employees or contractors. Each party to the extent possible shall obtain, for each policy of insurance, provisions permitting waiver of any claim against the other party for loss or damage within the scope of the insurance and each party to the extent permitted, for itself and its insurer, waives all such insured claims against the other party. 21. QUIET POSSESSION. Landlord covenants that it will put Tenant into complete and exclusive possession of the Demised Premises, free from all orders, restrictions and notices of any public or quasi-public authority, and that if Tenant shall pay the rental and perform all the covenants and provisions of this Lease to be performed by Tenant, the Tenant shall, during the Term, freely, peaceably and quietly occupy and enjoy the full possession of the Demised Premises, and the tenements and appurtenances thereto belonging, and the rights and privileges granted without hindrance. In addition, Landlord agrees to indemnify, defend, and hold Tenant harmless from any and all claims seeking to prevent Tenant from quiet and complete possession of the Demised Premises. If at any time during the term demised the title of the Landlord shall Item # 15
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fail or for any reason it shall appear that Landlord is unable to make this Lease for the term on the conditions set forth, the Tenant shall, in addition to all remedies available at law or in equity, have the right at Landlords expense to correct any default and offset such amount against rent, or terminate this Lease. 22. RENT PAYMENT. Tenant shall make rent checks payable to Augusta, Georgia, and mail them to the address set forth in paragraph 31 or as otherwise directed by Landlord. 23. TENANTS BUSINESS OPERATION. Landlord and Tenant agree that nothing in this Lease shall be construed to imply that Tenant is required to conduct its business in any particular manner or for any specified number of hours per day or week, or to limit the number of hours per day or week that Tenant may operate in the Demised Premises, or as creating an implied or expressed obligation upon Tenant to continuously occupy or operate a business in the Demised Premises. 24. SURRENDER OF DEMISED PREMISES. Upon the expiration of this Lease, Tenant shall peaceably surrender the Demised Premises to Landlord in the same condition in which they were received from Landlord at the commencement of this Lease, except: (i) as altered as permitted or required by this Lease; (ii) for repairs, replacements and maintenance required to be performed by Landlord; (iii) for items covered by Landlords insurance; and (iv) except for ordinary wear and tear. This Section 24 shall not apply to cancellation or termination of this Lease pursuant to Section 13, DAMAGE TO DEMISED PREMISES, or pursuant to Section 18, CONDEMNATION, pursuant to which Tenant shall have no obligation or liability to Landlord. Tenant shall remove its property from the Premises within a reasonable time after the Lease expiration (not to exceed thirty (30) days), without additional rent obligation. 25. LANDLORDS CONSENTS AND APPROVALS. Whenever it is stated in this Lease that Landlords consent or approval is required, Landlord agrees that such consent or approval will not be unreasonably withheld or delayed. If, in any instance, Landlord refuses to grant its consent or approval, Landlord agrees to simultaneously give Tenant written notice of the reason(s) for such refusal. If Landlords consent or approval is not given or refused within ten (10) days after Tenants written request therefore, such consent or approval shall be deemed automatically granted. 26. ATTORNEYS FEES. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys fees and costs of suit, including, but not limited to, fees and costs of appeal. 27. RECORDING. In the event either party desires to record the existence of this Lease, the parties agree to execute a Memorandum of Lease setting forth the Operating Term, number of renewal option periods and length, if any, the description of the Demised Premises, and any other terms and conditions of the Lease the parties wish to make of public record. 28. NO WAIVER. The failure of the Landlord or Tenant to insist upon the strict performance of this Lease, or the failure of Landlord or Tenant to exercise any right, option or remedy contained in this Lease shall not be construed as a waiver for the future of any such Item # 15
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provision, right, option, or remedy, or as a waiver of any subsequent breach. No provision of this Lease shall be deemed to have been waived unless such waiver shall be in writing signed by the party to be charged. 29. TRUE LEASE. This Lease is intended as, and shall constitute, an agreement of lease, and nothing herein shall be construed as conveying to the Tenant any right, title or interest in or to the Demised Premises nor to any remainder or reversionary estates in the Demised Premises held by any person, except, in each instance, as a Tenant. Under no circumstances shall this Lease be regarded as an assignment of all of Landlords interests in and to the Demised Premises. Instead Landlord and Tenant shall have the relationship between them of Landlord and Tenant, pursuant to the provisions of this Lease. 30. HOLD OVER. Any holding over by Tenant beyond the original term of this Lease shall be on the same terms and conditions as contained herein, and shall be a periodic tenancy terminable by either party upon thirty (30) days prior written notice to the other party. 31. NOTICES. All notices required under this Lease shall be given and deemed to have been properly served if delivered in writing personally, by certified mail, or by a nationally recognized overnight carrier with signed proof of delivery to: In case of the Landlord to: Augusta-Richmond County City County Municipal Building 530 Greene Street Augusta, Georgia 30901 Attn: City Administrator In the case of Tenant to: Augusta Riverfront, LLC One 10th Street, Riverfront Center Suite 340 Augusta, Georgia 30901 Attn: Mr. Paul S. Simon With a copy to: Augusta-Richmond County Legal Department 530 Greene Street Augusta, Georgia 30901 Attn: General Counsel With a copy to: Hull Barrett, PC 801 Broad Street, 7th Floor Augusta, Georgia 30901 Attn: Rand Hanna
or such other place or places as either of them may designate in writing to the other from time to time in accordance with the provisions of this Section. Date of service of a notice served by mail shall be the date on which such notice is received by the addressee. Date of service by any other method shall be the date of receipt. 32. ESTOPPEL CERTIFICATES. Upon the reasonable request of either party, Landlord and Tenant agree to execute and deliver to the other within ten (10) business days after receipt of the request, a written instrument, (a) certifying that this Lease has not been modified and is in full force and effect or, if there has been a modification of this Lease, that this Lease is in full force and effect as modified, stating such modifications; (b) stating that the fixed monthly rent has not been paid more than thirty (30) days in advance, or if so, the date to which it has been paid; (c) stating whether or not, to the knowledge of the party executing the instrument, the
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other party hereto is in default and, if the party is in default, stating the nature of the default; and (d) stating the date of this Lease. 33. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. Tenant agrees that this Lease shall, at Landlords request, be subject and subordinate to any first mortgage or deed of trust hereafter placed upon the Demised Premises upon the condition that the mortgagee or holder of a deed of trust enter into a Subordination, Non-Disturbance and Attornment Agreement in a form mutually acceptable to Landlord, Tenant and the mortgagee or holder. 34. TENANT PROPERTY. All Tenants personal property, furniture, furnishings, signs, equipment, machinery, trade fixtures and trade uses located at the Demised Premises shall remain the property of Tenant and may be removed from the Demised Premises at any time. Landlord shall have no lien or other interest whatsoever in any such items and within ten (10) days following Tenants request, Landlord shall execute documents in reasonable form to evidence Landlords waiver of any right, title, lien, or interest in or to same. 35. INVALIDITY OF CERTAIN PROVISIONS. If any provisions of this Lease shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be affected and every other provision of this Lease shall be enforceable to the fullest extent permitted by law. 36. FORCE MAJEURE. If either party shall be prevented or delayed from punctually performing any obligation or satisfying any condition under this Lease by: (a) any strike, lockout, or labor dispute not caused by the negligence non-performing party or breach of a labor contract by the non-performing party; (b) the inability to obtain labor or materials not resulting in any way from the negligence or any act or omission of the non-performing party; (c) and Act of God; (d) governmental restrictions; regulations or controls not existing as of the date of this Lease; (e), enemy or hostile governmental action; (f) civil commotion, insurrection, sabotage, fire or other casualty not resulting from the non-performing partys negligence or other actions; or, (g) any other condition beyond the reasonable control of the responsible party, then the time to perform the obligation or satisfy the condition shall be extended for a period of time equal in length to the length of the event. 37. GOVERNING LAW. This Lease shall be construed in accordance with the laws of the state Georgia, with venue being in Augusta-Richmond County, Georgia without giving regard to its conflict of laws. 38. SUBMISSION TO VENUE AND JURISDICTION. Any legal action or proceeding with respect to this Lease shall be brought in the appropriate federal or state court located in the state where the Demised Premises are located. By execution and delivery each party hereto accepts for itself and in respect of its property, generally and the jurisdiction of the above-reference courts. 39. CAPTIONS. All captions and headings are for convenience of reference only and in no way shall be used to construe or modify the provisions set forth in this Lease.
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40. ENTIRE AGREEMENT. This Lease, its attachments, any duly executed amendments, the documents incorporated into the Lease by reference, any written agreements which are duly executed pursuant to the terms and provisions of this Lease, if any, and the CORE Agreement contain the entire agreement between the parties and there are no covenants, express or implied except as contained herein. No statement, promise or inducement made by either party or agent of either party that is not contained in this written agreement shall be valid or binding. No waiver of any condition or covenant of this Lease by either party shall be deemed to imply or constitute a further waiver of the same or any other condition or covenant of the Lease. During the term of this Lease, Article VI of the CORE Agreement shall be suspended, but said Article VI shall revive and remain in full force and effect upon any expiration of this Lease. 41. BINDING EFFECT. This Lease, as of the Effective Date, shall bind and inure to the benefit of the parties hereto, their heirs, successors, executors, administrators, and assigns. [EXECUTION ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal in multiple counterparts, each of original document, on the day and year first above written.
Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal) Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal)
Augusta, Georgia By:________________________ Its Mayor Attest:______________________ Its Clerk of Commission (Seal)
Augusta Riverfront, LLC, a Georgia limited liability company By:________________________ Paul S. Simon As its President (Seal)
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STATE OF GEORGIA COUNTY OF RICHMOND
LIMITED WARRANTY DEED THIS INDENTURE, made this ___ day of ____________, 2011, by and between 933 BROAD INVESTMENT CO., LLC, a Georgia limited liability company, as party of the first part (herein called Grantor), and AUGUSTA, GEORGIA, a public body corporate and politic of the State of Georgia, as party of the second part (herein called Grantee) (the words Grantor and Grantee shall include their respective heirs, successors and assigns where the context requires or permits); W I T N E S S E T H: GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien, convey and confirm unto said Grantee, all those property rights lying and being in Augusta, Richmond County, Georgia, and being more particularly described on Exhibit A attached hereto and by this reference made a part hereof, together with any and all improvements, and fixtures located thereon or attached thereto, and all rights, easements and benefits appurtenant thereto (hereinafter referred to as the Property), subject to current taxes and assessments not yet due and payable, all easements, rights of way, covenants, conditions, restrictions, and other matters of record, zoning ordinances, rights of tenants and parties in possession and any state of facts that would be disclosed by a current accurate survey of the Property ("Permitted Encumbrances"). TO HAVE AND TO HOLD the Property to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE. AND Grantor shall and will warrant and forever defend by virtue of these presents, the Property unto Grantee against Grantor and all persons owning, holding or claiming by, through or under Grantor, except for claims arising under or by virtue of the Permitted Encumbrances.
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EXECUTED under seal the day and year first above written. 933 BROAD INVESTMENT CO., LLC, a Georgia limited liability company
By:________________________ Paul S. Simon As its President (Seal)
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Exhibit A The exclusive and perpetual right of possession and occupancy of, the exclusive and perpetual right to floor and to cover over and to build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 149.25 feet above mean sea level and below a horizontal plane of 199.25 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 135.748 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described as follows: All that lot, tract or parcel of land situate, lying and being in Richmond County, Georgia, being depicted as N/F 933 Broad Investment Co. LLC containing 1.25 acres, more or less (the Land), on that certain Compiled Map of Proposed Reynolds Street Parking Deck for Augusta, Georgia by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated November 1, 2010, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____ (Plat). Reference is hereby made to said Plat for a more complete and accurate description as to the metes, bounds, courses, distances and location of said property. The above described air rights parcel is less and except and subject to the rights of others to the exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to, floor and cover over and build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 199.25 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 135.748 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described above. The above described air rights parcel is less and except and subject to the rights of others to the exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to, floor and cover over and build and construct over, in or upon the entire space or area situate at a height below a horizontal plane of 149.25 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 135.748 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described above.
TOGETHER WITH a perpetual, non-exclusive access easement for vehicular and pedestrian access to the Property over all entrance driveway(s) and access ramp(s) currently existing on the Land, as such may be relocated from time to time. The easement granted herein shall continue so long as the parking facilities continue to exist. TOGETHER WITH a non-exclusive, perpetual easement for support for all columns, walls and other support structures located on the Land. The easement granted herein shall continue so long as the parking facilities continue to exist.
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Prepared by and after recording, please return to: Seyfarth Shaw LLP 1075 Peachtree Street, N.E., Suite 2500 Atlanta, Georgia 30309 Attn: Lori H. Whitfield, Esq.
Cross Reference to instruments recorded at: Deed Book 01019, Page 1326 Deed Book 01019, Page 1367 Deed Book 01041, Page 2155 Deed Book 01141, Page 2119 Deed Book 01019, Page 1440 Deed Book 01264, Page 1045 Richmond County, Georgia records
STATE OF GEORGIA COUNTY OF RICHMOND QUITCLAIM DEED AND PARTIAL RELEASE
THIS QUITCLAIM DEED AND PARTIAL RELEASE (this Partial Release) is effective as of this ___ day of _______________, 2012, between WELLS FARGO BANK, N.A., a national banking association, successor by merger to WACHOVIA BANK, NATIONAL ASSOCIATION (Lender), having a mailing address of 2030 Main Street, Suite 800, Irvine, California 92614, Attention: Kim Taylor, Loan Administrator, and 933 BROAD INVESTMENT CO, LLC, a Georgia limited liability company (Guarantor), with the mailing address of c/o Azalea Development, LLC, 725 Broad Street, Augusta, Georgia 30901, Attention: William S. Morris IV (Lender and Guarantor to include the plural as well as the singular, and heirs, legal representatives, successors and assigns, where the context so requires or admits). WITNESSETH WHEREAS, Lender has made certain loans (the Loans) to Augusta Riverfront, LLC (Borrower), which Loans are unpaid and are currently evidenced by (i) that certain Promissory Note made by Borrower in the original principal amount of $78,500,000 dated September 27, 2005 and (ii) that certain Promissory Note made by Borrower in the original principal amount of $13,500,000 dated February 17, 2006 (collectively, the Notes). WHEREAS, Guarantor has guaranteed Borrowers indebtedness and obligations under the Notes and the Loans pursuant to that certain Guaranty Agreement dated September 27, 2005 (as the same has been heretofore amended and reaffirmed, the Guaranty). WHEREAS, Guarantor has secured its obligations under the Guaranty with the following instruments:
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(i) that Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement dated as of September 27, 2005 made by Guarantor for the benefit of Lender and recorded October 14, 2005 in Office of the Clerk of the Superior Court, Richmond County, Georgia (the Official Records) in Deed Book 01019, Page 1326, as the same has been modified and amended by that certain First Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and First Modification of Assignment of Rents and Leases dated February 17, 2006 and recorded in the Official Records on March 2, 2006 in Deed Book 01041, Page 2155 (the First Modification), as further modified and amended by that certain Second Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and Second Modification of Assignment of Rents and Leases dated August 23, 2007 and recorded in the Official Records on September 7, 2007 in Deed Book 01141, Page 2119 (the Second Modification; said deed to secure debt, as modified by the First Modification and the Second Modification is hereinafter collectively referred to as the Security Deed); (ii) that certain Assignment of Rents and Leases dated as of September 27, 2005 made by Guarantor for the benefit of Lender and recorded in the Official Records on October 14, 2005 in Deed Book 01019, Page 1367, as the same has been modified by the First Modification and Second Modification (said assignment of rents and leases as modified by the First Modification and the Second Modification is hereinafter collectively referred to as the ALR); and (iii) that UCC Financing Statement recorded in the Official Records on September 27, 2005, in Deed Book 01019, Page 1440, as continued by that UCC Financing Statement Amendment recorded in the Official Records on June 22, 2010, in Deed Book 01264, Page 1045 (as continued, the UCC). The foregoing documents, instruments and agreements, together will all other documents, instruments and agreements evidencing, securing or otherwise relating to the Loans, as any of same may have been amended, modified, supplemented, restated, extended, spread, renewed and/or consolidated, are hereinafter collectively referred to as the Loan Documents. WHEREAS, Lender is the current holder of the Loan Documents and all indebtedness secured thereby. WHEREAS, at Guarantors request, Lender has agreed to release the Release Parcel (as defined hereinbelow), BUT ONLY THE RELEASE PARCEL, from the lien, security interests, operation and effect created under and by virtue of the Loan Documents, and desires to evidence and confirm said agreement by executing and delivering this Partial Release. WHEREAS, except for the Release Parcel (which is being released from the lien of the Loan Documents), the Loans are outstanding and unpaid, the Loan Documents remain in full force and effect, with all property, land, easements, improvements, fixtures and personal property described in the Loan Documents (collectively, the Mortgaged Property) continuing to secure the Guaranty and the Loans and subject to the lien(s) of the Loan Documents. THIS IS ONLY A PARTIAL RELEASE OF LIEN AND RELEASES ONLY PART OF THE MORTGAGED PROPERTY COVERED BY THE LOAN DOCUMENTS. NOW THEREFORE, in consideration of the premises and TEN DOLLARS in-hand paid to Lender, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lender does hereby remise, release, quitclaim and set over unto Guarantor and its heirs, successors and assigns forever the following property (the Release Parcel):
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The exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to, floor and cover over and build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 151.05 feet above mean sea level and below a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described as follows: All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. Portion of TMP Nos. 037-3-066-01-0; 037-3-066-00-0; 037-3-177-00-0; 037-3-069-00-0; and 037-3070-00-0. but only the Release Parcel, together with all hereditaments and appurtenances thereunto belonging, and all right, title and interest of Lender in and to the same, BUT WITHOUT, HOWEVER, in any manner releasing or relinquishing the lien, security interests, operation or effect of the Loan Documents on the Mortgaged Property (other than the Release Parcel) and all other property, land, easements, improvements, fixtures and personal property described therein. THIS IS A PARTIAL RELEASE OF LIEN, and except for the Release Parcel, the liens and obligations of the Loan Documents continue in full force and effect on the Mortgaged Property as described in the Loan Documents. Lender reaffirms, and by its acceptance hereof Guarantor reaffirms, that the indebtedness under the Loan Documents has not been paid and remains outstanding and ratify and affirm the liens held by Lender under the Loan Documents (other than for the Release Parcel, which is released by this Partial Release). All terms covenants, conditions and provisions of the Partial Release are binding upon Lender and its heirs, legal representatives, successors and assigns, and all other parties in interest. This Partial Release is governed by, and shall be construed and enforced in accordance with, the laws of the State of Georgia. TO HAVE AND TO HOLD the Release Parcel to Guarantor, so that neither Lender nor any person or persons claiming under Lender, shall at any time, by any means or ways, have, claim or demand any right to title to the Property or its appurtenances. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Lender has executed this instrument the day and year first above written. Lender: Signed, sealed and delivered in the presence of: WELLS FARGO BANK, N.A., a national banking association, successor by merger to WACHOVIA BANK, NATIONAL ASSOCIATION
Unofficial Witness
By: ______________________________ Name: Brandon Cox Title: Senior Vice President
Notary Public [BANK SEAL] My Commission Expires:
[Notarial Seal]
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Seyfarth Shaw Revision 6/3/12 Version 6
___________________________________________________________________________________ Space above this line for recorders use
DEED WITH RESERVATION OF EASEMENTS AND OTHER RIGHTS THIS INDENTURE (this Deed), made this ___ day of ____________, 2012, by and between 933 BROAD INVESTMENT CO, LLC, a Georgia limited liability company, as party of the first part (herein called Developer), and AUGUSTA, GEORGIA LAND BANK AUTHORITY, as party of the second part (herein called the Authority) (the words Developer and Authority shall include their respective heirs, successors and assigns where the context requires or permits); W I T N E S S E T H: DEVELOPER, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien, convey and confirm unto the Authority, all that tract and parcel of land being in Augusta, Richmond County, Georgia, and being more particularly described on Exhibit A attached hereto and by this reference made a part hereof (hereinafter referred to as the Property), subject to current taxes and assessments not yet due and payable, that certain Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement from Developer to Wachovia Bank, N.A., dated September 27, 2005 and recorded in the real estate records of Richmond County, Georgia at Book 01019, Page 1326, as the same has been amended, and that certain Assignment of Rents and Leases from Developer to Wachovia Bank, N.A. dated September 27, 2005 and recorded in the real estate records of Richmond County, Georgia at Book 01019, Page 1367, as the same has been amended, all easements, rights of way, covenants, conditions, restrictions, and other matters of record, zoning ordinances, rights of tenants and parties in possession, that certain Reynolds Street Parking Deck Construction, Operating, and Reciprocal Easement Agreement (the CORE Agreement) of even date, the easements and rights reserved herein, and any state of facts that would be disclosed by a current accurate survey of the Property (Permitted Encumbrances). TO HAVE AND TO HOLD the Property to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of the Authority forever in FEE SIMPLE.
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EXECUTED under seal the day and year first above written. 933 BROAD INVESTMENT CO, LLC, a Georgia limited liability company By:________________________ Paul S. Simon As its President (Seal)
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The Authority accepts this Deed and agrees to the easements, rights, terms and conditions contained in this Deed under seal the day and year first above written.
Augusta, Georgia Land Bank Authority By:________________________ As its Chairman
Attest:______________________ As its Land Bank Coordinator (Seal)
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Exhibit A All that lot, tract or parcel of land (the Land) situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____ (Plat). LESS AND EXCEPT and subject to the rights of others to exclusive and perpetual right of possession and occupancy of, the exclusive and perpetual right to floor and to cover over and to build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 151.05 feet above mean sea level and below a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the Land. Said air rights parcel was conveyed to Augusta, Georgia by deed of Grantor of even date and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia, prior to the recordation of this Deed (the City Air Rights Property). LESS AND EXCEPT and subject to the rights of others to the exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to, floor and cover over and build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the Land. Title to said air rights parcel is hereby reserved to Grantor. Portion of TMP Nos. 037-3-066-01-0; 037-3-066-00-0; 037-3-177-00-0; 037-3-069-00-0; and 037-3070-00-0.
SUBJECT TO AND RESERVING THEREFROM THE FOLLOWING EASEMENTS AND RIGHTS: Easements Reserved in Favor of Developer. The parties intend that Developer, as the owner of the land described in Exhibit B hereto (the Developer Property), retains, at no rental or other charge, the perpetual right of possession, use and occupancy of the Property in the broadest sense for parking, access, commercial and residential use and occupancy, and all other lawful purposes, subject only to the agreements and restrictions set forth in the CORE Agreement. Accordingly, Developer reserves easements in perpetuity for the use and benefit of the owner of the Developer Property over all portions of the Property, subject to the CORE Agreement, for (i) the parking of passenger and commercial vehicles on all parking spaces now or hereafter located on the Property, on an exclusive basis; (ii) pedestrian and vehicular ingress and egress to and from the public streets and sidewalks over all portions of the Property; (iii) the possession, use, and occupancy of the Property; (iv) the re-configuration, demolition of improvements, erection of new improvements, modification, construction, use, occupancy, leasing, operation, and maintenance of retail or office space or any other type of commercial or residential use not prohibited by law; (v) the construction, use, repair, and
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maintenance of footings, supports and utility lines (electric, communication, water, sewer, storm water, and gas, to the extent now or hereafter desirable by Developer); (vi) all other uses of the Property not prohibited by law; and (vii) all rights, benefits and easements of Developer under the CORE Agreement. Neither the Authority nor any person or entity acting through the Authority shall enter into or make any use of the Property or any portion thereof in a manner that would impact or interfere with Developers, or any successor owner of the Developer Property, exercise of its rights and easements reserved in this Deed, without the express and prior written consent of Developer. Developer shall not be required to obtain any consent of the Authority or provide any notice to the Authority prior to the exercise of its rights reserved in this Deed. The foregoing rights and easements shall run with the land for the benefit of the owner of the Developer Property and burden the Property, such being intended to be rights and easements appurtenant to the Developer Property and not in gross. Binding Effect; Etc. Developer, or any successor owner of the Developer Property, shall have the right to extend to its tenants, customers, business guests and invitees the benefit of the rights and easements established in this Deed, but no such tenant, customer, business guest or invitee shall by virtue thereof be deemed to have acquired any interest whatsoever in the Property or any part thereof. The benefits and burdens of the easements and restrictions created in this Deed shall run with the land and shall be binding upon and inure to the benefit of the owners of all interests in the Property (and all subdivided portions thereof) and the Developer Property and their respective heirs, executors, successors-in-title, tenants, and assigns, and all those holding under any of them. The easements, restrictions and obligations contained in this Deed shall be unaffected by any change in the ownership of any property covered by this Deed or the Developer Property or by any change of use, demolition, reconstruction, expansion or other circumstances, except as specified in this Deed. Each of the rights created hereunder may be enforceable in a court of equity by the owner of any property covered by this Deed. It is the express intent of the parties hereto that the easements reserved in this Deed shall not, at any time, merge by operation of law into any owners title or interest in any parcel, but that the easements reserved in this Deed shall remain separate and distinct rights and estates in land unless the owner(s) of all affected parcels specifically evidence their intent by mutual agreement in writing to extinguish any such easement. It is further expressly provided that the acquisition hereafter by any other party (including, without limitation, a present or future mortgagee of any parcel or any portion thereof) of an ownership interest (in fee, leasehold, or otherwise) shall not operate, by merger or otherwise, to extinguish, diminish, impair, or otherwise affect any easement granted herein, which easements shall remain separate and distinct estates in land. Developer shall have the right to encumber, pledge, mortgage, grant security title to, grant a security interest in, convey, transfer, assign, and subdivide and convey to one or multiple parties, all or any portion of the easements and rights reserved in this Deed. Perpetual Easements. The easements reserved in this Deed shall continue in perpetuity. The parties expressly acknowledge and agree that the purpose of this Deed is the reservation and establishment of the easements, rights and privileges set forth herein, and none of the terms or provisions of this Deed shall be or be deemed to be covenants restricting land to certain uses for purposes of O.C.G.A. 44-5-60, or any similar law or statute, and each party (knowingly, willingly and upon the advice of legal counsel) expressly forever waives, releases and discharges any right that either party now has or ever may have to claim or assert in any legal or other circumstances that any of the easements or other terms or provisions of this Deed are in any way covered or limited by said section or any similar law or statute. Option to Re-Acquire the Property. In the event Augusta, Georgia fails to rebuild after damage to the parking deck located on the City Air Rights Property, above the Property and the CORE Agreement terminates pursuant to Section 5.3 thereof, Developer, together with its successors and assigns as owners of the Developer Property, shall have a perpetual option to acquire fee simple title to the Property for its fair market value, as
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determined by an appraisal complying with the laws of Georgia with respect to the sale of government owned property and taking into account the diminution in value of the Property on account of the easements reserved by Developer in this Deed. In the event Developer exercises its option to acquire the Property, the Authority shall reasonably cooperate with Developer in obtaining such appraisal and all necessary approvals for such conveyance of the Property to Developer. Furthermore, Developer, for itself and its successors and assigns as owners of the Developer Property, reserves for itself and its successors and assigns, and expressly does not transfer to the Authority, the option to acquire the City Air Rights Property after a casualty pursuant to Section 5.3 of the CORE Agreement. Amendment and Waiver. No amendment of any provision of this Deed shall be valid unless the same shall be in writing and signed by Developer and the Authority (or their successors in title to the Property) and duly indexed and recorded in the Office of the Clerk of Superior Court of Augusta, Richmond County, Georgia. No waiver by any party of any provision of this Deed, whether intentional or not, shall be valid unless the same shall be in writing and signed by the party making such waiver nor shall such waiver be deemed to extend to any subsequent default, misrepresentation, or breach of warranty or covenant under this Deed or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
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Exhibit B Developer Property All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. AND All those lots, tracts, or parcels of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 4 containing 0.41 acre, more or less, and Tract 4A containing 0.01 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. LESS AND EXCEPT: The exclusive and perpetual right of possession and occupancy of, the exclusive and perpetual right to floor and to cover over and to build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 151.05 feet above mean sea level and below a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described as follows: All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.
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Commission Meeting Agenda 6/28/2012 5:00 PM Approve agreements for Parking Decks

Financial Impact: Alternatives: Recommendation: Funds are Available

in the Following Accounts:

REVIEWED AND APPROVED BY: Finance. Law. Administrator. Clerk of Commission

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Seyfarth Shaw Revisions 5/4/12 Version 10

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ARTICLE III CONSTRUCTION AND TITLE

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ARTICLE IV OPERATION AND MAINTENANCE OF PARKING DECK

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[EXECUTION ON FOLLOWING PAGE]

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Wells Fargo Bank, National Association (Seal)

By:__________________________ Print Name: ___________________ Title: ________________________

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Exhibit B WAGT Tract

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Exhibit C Jackson Tract

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Exhibit D Air Rights Parcel

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Hull Barrett 5/16/12 Version 14

REYNOLDS STREET PARKING DECK MANAGEMENT AGREEMENT

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By:________________ Print Name: _ Title: ________________

By: Name: Title: __