ARC 6282012 Parking Deck Agenda Items

7/31/2019 ARC 6282012 Parking Deck Agenda Items

1/91

Commission Meeting Agenda

6/28/2012 5:00 PMApprove agreements for Parking Decks

Department: Administrator / Finance

Caption: Motion to approve the Reynolds Street Parking DeckConstruction, Operating and Reciprocal Easement Agreement,Reynolds Street Parking Deck Management Agreement,Conference Center Parking Lease and Assignment of ParkingDeck Management Agreement, and to authorize the Mayor and

Clerk of Commission to execute same.

Background: The approval of the Reynolds Street Parking Deck Construction,Operating and Reciprocal Easement Agreement, Reynolds StreetParking Deck Management Agreement and Conference CenterParking Lease were approved by the Commission on February 7,2012.

Analysis: The approval of the Reynolds Street Parking Deck Construction,Operating and Reciprocal Easement Agreement, Reynolds StreetParking Deck Management Agreement and Conference CenterParking Lease were approved by the Commission on February 7,2012, subject to a change in the term of the ManagementAgreement and the conveyance by 933 Broad, LLC of its surfacerights beneath the parking deck to the Augusta, Georgia LandBank Authority. 933 Broad, LLCs lender has requested slightmodifications and for Augusta to consent to an Assignment ofParking Deck Management Agreement. Attached are copies of theDeed to Augusta, Deed to the Augusta, Georgia Land BankAuthority and the Quitclaim Deed and Partial Release that will beexecuted and recorded upon finalization of these documents

Financial Impact: No funding is necessary

Alternatives: N/A

Recommendation: Approve the execution of the documents

Funds are Available Cover Memo

Item # 15


2/91

in the FollowingAccounts:

n/a

REVIEWED AND APPROVED BY:

Finance.Law.Administrator.Clerk of Commission

Cover Memo

Item # 15


3/91

100455906-10

Seyfarth Shaw Revisions 5/4/12Version 10

_____________________________________________________________________________________Space above this line for recorders use

REYNOLDS STREET PARKING DECKCONSTRUCTION, OPERATING

AND RECIPROCAL EASEMENT AGREEMENT

THIS REYNOLDS STREET PARKING DECK CONSTRUCTION, OPERATING ANDRECIPROCAL EASEMENT AGREEMENT (this Agreement) is made this ___ day of _________,2012, by and between AUGUSTA, GEORGIA (City) and 933 BROAD INVESTMENT CO., LLC, aGeorgia limited liability company (Developer).

RECITALS

A. Developer is the owner of that certain improved parcels of land described on Exhibit Aattached hereto and by this reference made a part hereof, together with all improvements locatedthereon (the Developer Property).

B. City is the owner of (i) that certain tract of land described on Exhibit B attached hereto and bythis reference made a part hereof together with all improvements located thereon (the WAGTTract); (ii) that certain tract of land described on Exhibit C attached hereto and by thisreference made a part hereof, together with all improvements located thereon (the JacksonTract); and (iii) that certain improved parcel of property described on Exhibit D attachedhereto 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 asthe City Property) . The Air Rights Parcel is generally the block of space occupied by theParking Deck, extending vertically from the roof of the first floor of the Parking Deck to eightfeet above the finished floor elevation of the six (6th) floor of the Parking Deck.

C. 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). TheDeveloper Property contains additional surface parking (the Developer Surface Parking Areas)not located within the Parking Deck.

D. In connection with transactions related to the Augusta Convention Center, but for no monetaryconsideration, Developer conveyed the Air Rights Parcel to City. Both before and after theconstruction of the Parking Deck, the general functionality and utility to Developer of the

Attachment number

Item # 15


4/91

200455906-10

Developer Property are for surface parking for its tenants. The Parking Deck was constructed byCity for the benefit of City, and the benefits of the Parking Deck to Developer are small andincidental (i.e., additional security, covered parking, and better aesthetics). Automated gates anda staffed toll booth are solely for the benefit of City in the management of its portion of theParking Deck and provide only an incidental benefit to Developer. In connection with theManagement 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 businesshours. Such agreements are part of a bargained for exchange made in connection with theManagement Agreement but have no applicability outside of the Management Agreement.Accordingly, the Parties acknowledge that Developer should have no responsibility formaintaining the Parking Deck structure or sharing of costs for operation of the Parking Deck andshould have no obligation to allow City to use the parking spaces located on Developer Propertyafter 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 theDeveloper Property, the City Property, and the Parking Deck, including but not limited to thoserights and obligations related to operation, maintenance, support, access, and insurance as setforth in this Agreement.

AGREEMENT

In consideration of the premises and the mutual agreements and covenants contained herein, andfor 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. Definitions. As used in this Agreement, the following terms shall have the

following meanings.

Access Easement Areas shall mean those areas located on the City Property and the DeveloperProperty 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 itssuccessors 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 itssuccessors in title to the Developer Property or any part thereof.

Developer Property shall have the meaning set forth in the recitals of this Agreement.

Attachment number

Item # 15


5/91

300455906-10

Developer Surface Parking Areas shall have the meaning set forth in the recitals of thisAgreement.

Ground Floor Ramp shall mean that ramp connecting the ground floor of the Parking Deck tothe second floor of the Parking Deck and labeled as such on the schematic Plans and Specificationattached 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 onthe 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 Cityhas 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 thirdparty 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 shallinclude 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 Developercollectively.

Plans and Specifications shall mean the final plans and specification for the Parking Deck, fullcopies of which are on file with City and Developer. Schematics of the Plans and Specifications areattached as Exhibit H to this Agreement. In the event reconstruction is necessary and the original fullPlans and Specifications cannot be located, the Parties shall work together in good faith to engage anengineering 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 substantialaccordance with the schematic plans and specifications attached to this Agreement, whereupon such plansand 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 andLeases, 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, Georgiaon October 14, 2005, in Book 1019, page 1326, and the related Assignments of Leases and Rents, allrelated UCC financing statements, and all amendments and modifications thereto.

Standard shall mean the first-class standards of construction, operation, maintenance and repairof Marriott Corporation, reasonably interpreted to take into account differences between a hotel and aParking Deck.

Term of this Agreement shall mean the period of time commencing on the date of thisAgreement and continuing in perpetuity for so long as the Parking Deck is in existence and shall includethe period of time following any casualty with respect to the Parking Deck for so long as either Party has

Attachment number

Item # 15


6/91

400455906-10

the right to rebuild the Parking Deck or the right to require the other Party or any person or entity to re-build the Parking Deck.

Traffic Control Areas shall mean those areas located on the Developer Property shown ascross-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 inperpetuity 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 SurfaceParking Areas so long as such relocation or modification does not unreasonably hinder Citys access tothe City Property and Parking Deck. City hereby grants to Developer non-exclusive easements inperpetuity over the Access Easement Areas located on the City Property for vehicular and pedestrianingress and egress to and from the public streets and sidewalks to the Developer Property. City retainsthe right to relocate or modify the Access Easement Areas existing on the City Property so long as suchrelocation or modification does not unreasonably hinder Developers access to the Developer Property.

Section 2.2. Landscaping Easements. Developer hereby grants to City non-exclusiveeasements 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 forvehicular and pedestrian access to the Landscaping Areas. With the prior written approval of City, whichshall not be unreasonably withheld or conditioned, Developer retains the right to relocate or modify theLandscape Areas in the modification or development of the Developer Property so long as suchmodification or development does not materially decrease the general aesthetics of the site.

Section 2.3. Support and Utility Easements. The Parties acknowledge that the improvementson the Developer Property and the Air Rights Parcel share common footings and supports and that utilitylines serving the Property may cross the City Property and the Developer Property. Each of the Partieshereby grants to the other Party a non-exclusive and perpetual easement over and under its respectiveProperty 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 themanner of construction, use, repair, and maintenance of such supports and utilities shall be in accordancewith generally accepted engineering and construction practice for improvements of such type and so asnot to impair the structural integrity of the other Partys improvements. The exercise of easement rightsunder this section by either Party shall be conducted in such a manner as will minimize interference withthe conduct of business by the other Party. In the event either Party shall in the future desire to installadditional utilities for the benefit of its Property and such installation impacts the other Partys Property,

Attachment number

Item # 15


7/91

500455906-10

the Party desiring to install said utilities shall install the same at its sole cost with the advance writtenapproval and cooperation of the other Party, such cooperation and approval not to be unreasonablywithheld or delayed, and the requesting Party shall return all disturbed Property to its substantially pre-disturbed 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 foroccupancy, use, maintenance, and repair of a toll booth and traffic control equipment in order to controlaccess to the Parking Deck. The use of the toll booth and traffic control equipment is subject to otherprovisions of this Agreement and the Management Agreement.

Section 2.5. Easements in favor of Developer for Parking. City hereby grants to Developeran exclusive easement in perpetuity over the WAGT Tract for parking of passenger and commercialvehicles and a non-exclusive easement in perpetuity over the WAGT Tract for pedestrian and vehicularingress and egress to and from the public streets and sidewalks to the Developer Property. Developershall have the right to maintain, repair, and upgrade the WAGT Tract for the parking and access purposesset 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 RichmondCounty, Georgia on May 18, 2011, in Book 1301, page 2188, shall be met by the use of parking spaces inthe 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 andDeveloper intend that Developer have fee simple title to and exclusive use of the parking spaces locatedon the Ground Floor Ramp. Because City owns the structure of the Parking Deck and because a portionof the Ground Floor Ramp is situated above the earth and is considered part of the structure, City herebygrants to Developer an exclusive easement in perpetuity over any portion of the Ground Floor Rampoutside of the Access Easement Areas for parking of passenger and commercial vehicles. Because of theconfiguration of the Parking Deck, it is possible that a portion of the Ground Floor Ramp may extend intothe 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 andextending into the Air Rights Parcel for parking of passenger and commercial vehicles. City herebygrants to Developer a non-exclusive easement in perpetuity over the access drive located on Ground FloorRamp for pedestrian and vehicular ingress and egress to and from the Developer Property and saidparking spaces located on the Ground Floor Ramp. City hereby grants to Developer non-exclusiveeasements in perpetuity over all ramps and drives within the City Property necessary to allow ingress andegress to and from the parking spaces on the Ground Floor Ramp pursuant to the designed traffic flowpatterns within the Parking Deck.

Section 2.7. Binding Effect; Extension of Easements to Invitees. The Parties shall have theright to extend to their tenants, customers, business guests and invitees the benefit of the rights andeasements 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 DeveloperProperty or any part thereof. The benefits and burdens of the easements and restrictions created in thisAgreement shall run with the land and shall be binding upon and inure to the benefit of the owners of theCity 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. Theeasements, restrictions and obligations contained in this Agreement shall be unaffected by any change inthe ownership of any property covered by this Agreement or by any change of use, demolition,

Attachment number

Item # 15


8/91

600455906-10

reconstruction, expansion or other circumstances, except as specified herein. Each of the rights createdhereunder may be enforceable in a court of equity by the owner of any property covered by thisAgreement or by Developer pursuant to retained rights and obligations under this Agreement in the eventof a conveyance of all or any part of the Developer Property as contemplated in Section 6.10 below. Alleasements and other rights conveyed by City to Developer within this Agreement shall be for the benefitof 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 thatthe easements granted herein shall remain separate and distinct rights and estates in land unless theowner(s) of all affected parcels specifically evidence their intent by mutual agreement in writing toextinguish any such easement. It is further expressly provided that the acquisition hereafter by any otherparty (including, without limitation, a present or future mortgagee of any parcel or any portion thereof) ofan ownership interest (in fee, leasehold, or otherwise) shall not operate, by merger or otherwise, toextinguish, diminish, impair, or otherwise affect any easement granted herein, which easements shallremain separate and distinct and estates in land.

Section 2.8. Perpetual Easements. The easements granted under this Section shall continue solong as the Parking Deck continues to exist or is rebuilt following a casualty. The Parties expresslyacknowledge 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 thisAgreement shall be or be deemed to be covenants restricting land to certain uses for purposes ofO.C.G.A. 44-5-60, or any similar law or statute, and each Party (knowingly, willingly and upon theadvice of legal counsel) expressly forever waives, releases and discharges any right that either Party nowhas or ever may have to claim or assert in any legal or other circumstances that any of the easements orother terms or provisions of this Agreement are in any way covered or limited by said section or anysimilar 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 theownership of the fee simple estate of the Developer Property which are not inconsistent with the rightsand 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 writtenapproval by City of the plans for such alteration or modification, which approval shall not beunreasonably withheld. Notwithstanding the preceding provision, Developer may develop the first floorof the Parking Deck into retail spaces without the approval of City, so long as the modifications do notmaterially 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 theParking Deck, Developer shall be responsible to repair the same to the substantially pre-damagedcondition. Furthermore, Developer retains the right to develop or modify the Developer Property (and tomodify 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 notunreasonably hinder Citys access to the City Property and Parking Deck, and does not impair thestructural integrity of the Parking Deck.

Attachment number

Item # 15


9/91

700455906-10

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 ParkingDeck is acceptable to City and Developer in all respects.

Section 3.2. Title to the Parking Deck. The structure of the Parking Deck shall be owned byCity.

Section 3.3. Expansion of the Parking Deck. Developer and City have agreed that City mayexpand the Parking Deck to the south of the existing Parking Deck ( i.e., between the existing ParkingDeck and Jones Street). In the event City so desires to expand the Parking Deck, Developer shall conveyto City property necessary for expansion of the Parking Deck (or shall modify its easements under thisAgreement with respect to the WAGT Tract) and shall amend this Agreement to provide for necessarysupport, 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 deckand shall only convey air rights in a similar manner to the rights existing under the current propertyownership and this Agreement, (ii) the construction shall be of equal quality and aesthetics to the currentParking Deck, and the plans and specifications therefor shall be acceptable to Developer and anymortgagee, in their reasonable discretion, (iii) construction shall be made under the joint supervision ofCity 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 ofthe same), (iv) access to and functionality of Developers remaining property or easement rights shall notbe unreasonably impaired, and agreements with respect to the expanded parking deck shall besubstantially similar to the agreements in this Agreement, and (v) Developer shall retain sufficientproperty or easements, whether on the ground or upper levels of the expanded parking deck, so thatDeveloper shall not suffer reduction in the number of parking spaces owned, or to which Developer has

rights via easements, by Developer.

Attachment number

Item # 15


10/91

800455906-10

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 withinthe Parking Deck) and the Landscape Areas to the Standard. Otherwise, each Party shall, at its sole costand expense, maintain its respective Property to the Standard. Notwithstanding the foregoing, during anyperiod when both Developer and City consent to a different cost sharing arrangement pursuant to aManagement Agreement, the maintenance and repair of the Parking Deck shall be made in accordancewith the Management Agreement. Given that each Party has a significant investment in the Parking Deckand the property upon which the Parking Deck is located, the Parties acknowledge that each Party has animportant interest in insuring that the Parking Deck is maintained in accordance with the Standard inperpetuity. Accordingly, this Agreement, and particularly this section of this Agreement, may beenforced 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 anddriveways within the Property. However, City, in its sole discretion and for its benefit, may staff andoperate a toll booth and/or automated traffic control devices in connection with the operation of itsportion of the Parking Deck (either directly or through a Management Agreement). In the absence of aManagement Agreement approved by Developer providing for a contrary agreement, Developer shallhave no obligation to share in the costs of operating the Parking Deck, and Developer shall have the rightto prohibit the unauthorized parking of vehicles on its Property, and the easement areas grantedhereunder, and the WAGT Tract by all means allowed by law (including towing of unauthorizedvehicles). In the event Developer or its affiliate manages the Parking Deck pursuant to a ManagementAgreement, 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 cardsor 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 andefficient method for Developers tenants, licensees and invitees to access the Developer Property, and theeasement areas granted hereunder, through the toll booth system, all at no cost to Developer. Nothingherein shall prohibit temporary closing of the Parking Deck or Property as may be necessary for thecleaning, repair and maintenance of the same as required from time to time, so long as such activities areconducted 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 spaceswithin its respective Property. Each Party shall operate its respective improvements in compliance withthe Standard and with all applicable governmental requirements, laws, statutes, regulations and/orordinances and shall keep in full force and effect at all times all governmental permits and licensesrequired for the use and operation of such improvements.

Section 4.3. Taxes. Developer shall be responsible for all ad-valorem taxes levied against theDeveloper 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 thefollowing insurance meeting the following requirements:

Attachment number

Item # 15


11/91

900455906-10

General Liability Insurance. During the Term of this Agreement, City shall, at its sole cost andexpense, carry comprehensive general liability property insurance, including contractual liability,personal and bodily injury, and property damage insurance, covering activities relating to the ParkingDeck, with a combined single limit in an amount sufficient to protect City and Developer, but in no eventwill such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. Suchinsurance 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 allurban consumers (CPI-U) (All Items 1982-84=100) for the preceding calendar year. Developer and, ifrequested, 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 thirtydays prior to the commencement of operation of the Parking Deck. Citys insurance shall contain a clausestating that there shall be no reduction, cancellation, or non-renewal of coverage without givingDeveloper and Developers mortgage lender thirty (30) days prior written notice. Such insurance shallalso be endorsed to provide that the insurance shall be primary to and not contributory to any similarinsurance 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 lessthan the total replacement cost therefor. Such policy referred to above shall name City and Developer asloss 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 thirtydays prior to the commencement of the Term of this Agreement. Upon completion of construction, Cityshall 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 providethe following insurance meeting the following requirements:

General Liability Insurance. During the Term of this Agreement, Developer shall, at its sole costand expense, carry comprehensive general liability property insurance, including contractual liability,personal and bodily injury, and property damage insurance, covering activities relating to the ParkingDeck, with a combined single limit in an amount sufficient to protect Developer and City, but in no eventwill such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. Cityshall be named as an additional insured under such insurance. Developer shall provide City with acertificate of insurance evidencing such coverage no later than thirty days prior to the commencement ofoperation of the Parking Deck. Developers insurance shall contain a clause stating that there shall be noreduction, cancellation, or non-renewal of coverage without giving City thirty (30) days prior writtennotice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and notcontributory 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 thesole purpose of supporting and housing the upper decks for the benefit of City and that Developersinterest 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 beobtained by endorsement or equivalent means under blanket insurance policies, provided that such

Attachment number

Item # 15


12/91

1000455906-10

blanket policies substantially fulfill the requirements specified herein. Where permitted, all insuranceprovided under this Article shall be carried in the name of Developer, City, the owner of any fee orleasehold interest in the Parking Deck or any portion thereof, and the holder of any security deedscovering the Parking Deck or any portion thereof, if any; and any losses thereunder shall be payable to theparties as their respective interests may appear. The party procuring such insurance shall deliver to theother 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 insurancewith 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 theretoan 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 orclaim which is covered by insurance then being carried or required to be carried by them under thisAgreement, the party suffering such loss or claim and carrying or required to carry such insurancereleases the other of and from any and all claims, defense costs and expenses with respect to such loss orclaim, 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 thisAgreement, 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, includingwithout limitation reimbursement of court costs, reasonable attorneys fees, interest, fees, and penalties, tothe extent such liabilities are finally determined by a court of competent jurisdiction to have been theresult 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. Thissection 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 ordestruction of all or any part of the Parking Deck, City shall, at its election, either (i) rebuild, replace andrepair such damaged or destroyed improvements to the same condition and usefulness and to the samegeneral appearance as existed immediately prior to such damage or destruction, or (ii) clear debris andraze the improvements as outlined below. Upon such damage or destruction, City shall notify Developerof its election within ninety (90) days. In the event City elects to rebuild, replace, or repair the ParkingDeck, such reconstruction shall be completed as expeditiously as reasonably possible but no later thantwelve (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 thedebris and raze the improvements, such work shall be completed as expeditiously as reasonably possiblebut no later than three (3) months following such damage and shall be performed in a first-class andworkmanlike manner.

Section 5.2. Clearing Debris from Razed Improvements. To the extent City does not elect torestore the Parking Deck destroyed or damaged by casualty, City shall promptly raze the entirety of the

Attachment number

Item # 15


13/91

1100455906-10

Parking Deck, clear away all debris and take all other action (including repaving) required by goodconstructions practice so that the area which had been occupied by the razed improvements will becompatible with the surrounding property and shall be aesthetically appropriate in accordance with theStandard.

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 thecompletion by City of its obligation to clear debris and raze the improvements as outline above. Uponsuch termination, Developer may develop the Developer Property in accordance with applicable laws. Insuch 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 governmentowned property. City shall reasonably cooperate with Developer in obtaining such appraisal and allnecessary 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, theparties shall be entitled to institute proceedings for full and adequate relief from the consequences of saidbreach or threatened breach (including, without limitation, the right to obtain injunctive relief or specificperformance). In the event such proceedings are instituted, the non-prevailing litigant shall pay thereasonable attorneys fees of the prevailing litigant. It is expressly agreed that no breach of thisAgreement shall result in a cancellation, rescission or termination of this Agreement or the easements andother rights and obligations created hereby.

Section 6.2. Amendments. The terms, covenants, conditions, and provisions of thisAgreement 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 recognizedcommercial overnight carrier with provisions for a receipt, in either case addressed to the parties hereto attheir respective addresses or numbers set forth below or as they will have theretofore specified by noticedelivered in accordance herewith:

Attachment number

Item # 15


14/91

1200455906-10

In case of the City to:

Augusta, GeorgiaCity County Municipal Building530 Greene Street

Augusta, Georgia 30901Attn: City Administrator

With a copy to:

Augusta, GeorgiaLegal Department530 Greene Street

Augusta, Georgia 30901Attn: General Counsel

In the case of Developer to:

933 Broad Investment Co., LLCOne 10th Street, Riverfront CenterSuite 340Augusta, Georgia 30901Attn: Mr. Paul S. Simon

With a copy to:

Hull Barrett, PC801 Broad Street, 7th FloorAugusta, Georgia 30901Attn: Rand Hanna

Section 6.5. Entire Agreement. This Agreement is the entire agreement between the partieswith respect to the subject matter hereof and no alteration, modification or interpretation hereof shall bebinding 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 orcircumstances will be determined by any court of competent jurisdiction to be invalid and unenforceableto any extent, the remainder of this Agreement or the application of such provision to such person orcircumstances, other than those as to which it is so determined invalid or unenforceable, will not beaffected thereby, and each provision hereof will be valid and will be enforced to the fullest extentpermitted 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 timeperiod stated herein shall fall on a Saturday, Sunday or legal holiday, then the duration of such timeperiod shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sundayor 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 ofAugusta-Richmond County, Georgia is located is open for business.

Section 6.8. Applicable Law. This Agreement shall be construed and enforced in accordancewith the laws of the State of Georgia.

Section 6.9. Waiver. The failure of either party to insist upon a strict performance of any ofthe 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 partyof any term or provision hereof shall be deemed to have been made unless expressed in writing andsigned by such party.

Section 6.10. Successors and Assigns. The provisions of this Agreement shall apply to, inureto the benefit of and bind the Parties and the respective successors and assigns thereof, including, without

Attachment number

Item # 15


15/91

1300455906-10

limitation, any mortgagee acquiring an interest in any portion of the Developer Property or the CityProperty or any improvements thereon by reason of foreclosure, deed or assignment in lieu of foreclosureor purchase at foreclosure sale; but any such mortgagee shall not incur or be required to assume anyobligation under this Agreement unless and until such mortgagee has so acquired an interest in anyportion of the Developer Property or the City Property or any improvements thereon, and then only suchas 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, suchreference shall be deemed to include a reference to the heirs, executors, legal representatives, successorsand assigns of such Party. It is expressly acknowledged and agreed by the Parties hereto that Developermay convey all or any portion of the Developer Property and retain from such conveyance the rights andobligations of Developer under this Agreement. Such retained rights and obligations of Developer maybe further transferred, assigned or conveyed by Developer or financed and assigned by Developer as setforth in Section 6.16 below.

Section 6.11. Force Majeure. Any partys performance under this Agreement shall besuspended 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 procurematerials, 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 anythird 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 orinterpreted as creating a partnership, joint enterprise or joint venture between or among the Parties. It isunderstood that the relationship between the parties is an arms-length one that shall at all times be andremain separate with respect to their interests in each tract. No Party shall have the right to act for or onbehalf of another Party, as agent or otherwise, unless expressly authorized to do so by separate writteninstrument signed by the Party to be charged or bound.

Section 6.14. Interpretation. No provision of this Agreement shall be construed against orinterpreted to the disadvantage of any Party by any court or other governmental or judicial authority byreason of such Party having or being deemed to have structured or dictated such provision. All personalpronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall includeall other genders; the singular shall include the plural; and the plural shall include the singular. Titles ofArticles and Sections of this Agreement are for convenience only, and neither limit nor amplify theprovisions of this Agreement, and all references in this Agreement to Articles, Sections or Subsectionsthereof shall refer to the corresponding Article, Section or Subsection of this Agreement unless specificreference is made to the articles, sections or subdivisions of another document or instrument.

Section 6.15. Management Agreement. The Parties acknowledge that the ManagementAgreement 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 shallbe assumed if the Parties or their affiliates are parties to the Management Agreement), any conflictingterms of the Management Agreement shall control over this Agreement.

Section 6.16. Financing - Limitations of Mortgagee Liability. Any Party may finance itsProperty subject to this Agreement, and, in conjunction therewith, may convey and/or assign (eitherabsolutely 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

Attachment number

Item # 15


16/91

1400455906-10

any such mortgage or lease of any portion of the Property. Any such mortgagee or lessee shall be liablefor the performance of the mortgagors or lessees covenants and obligations hereunder only if and for solong as such mortgagee or lessee comes into and holds possession (or has a right to possession) of suchmortgagees or lessees property, but upon any such transfer or further lease the transferee shall be subjectto the terms of this Agreement. Except as specifically provided in this Agreement, no mortgagee shallhave 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 mortgageesliability hereunder being limited to its interest in the property covered by such mortgage, anyimprovements 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 totime to establish to third parties such as accountants, banks, mortgagees or the like, the then current statusof performance hereunder, the Parties each agree, upon the written request of the other Party, made fromtime to time by notice as provided in this Agreement, to furnish promptly a written statement (inrecordable form, if requested) on the status of any matter pertaining to this Agreement to the best of theknowledge and belief of the Party making such statement.

[EXECUTION ON FOLLOWING PAGE]

Attachment number

Item # 15


17/91

1500455906-10

IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed underseal effective the date and year first above written.

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)

Signed, sealed and delivered in thepresence of:


________________________Notary Public

(Notary Seal)

933 Broad Investment Co., LLC, a Georgialimited liability company

By:________________________Paul S. SimonAs its President

(Seal)

Attachment number

Item # 15


18/91

1600455906-10

CONSENT AND SUBORDINATION

Wells Fargo Bank, National Association (Wells Fargo), the holder of the Security Deed and theindebtedness secured thereby, hereby consents to the foregoing Agreement and subordinates the SecurityDeed 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 thepresence of:


________________________Notary Public

(Notary Seal)

Wells Fargo Bank, National Association (Seal)

By:__________________________

Print Name: ___________________

Title: ________________________

Attachment number

Item # 15


19/91

1700455906-10

Schedule of Exhibits

Exhibit ADeveloper 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

Attachment number

Item # 15


20/91

1800455906-10

Exhibit ADeveloper 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 EngineeringGroup, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court ofRichmond 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, RichmondCounty, Georgia, being depicted as Tract 4 containing 0.41 acre, more or less, and Tract 4Acontaining 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 ThomasAttaway, 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.

Attachment number

Item # 15


21/91

1900455906-10

Exhibit BWAGT Tract

All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, RichmondCounty, 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 EngineeringGroup, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court ofRichmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.

Attachment number

Item # 15


22/91

2000455906-10

Exhibit CJackson 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 ofthe 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 EngineeringGroup, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court ofRichmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.

Attachment number

Item # 15


23/91

2100455906-10

Exhibit DAir Rights Parcel

The exclusive and perpetual right of possession and occupancy of, the exclusive and perpetualright 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 planeof 216.10 feet above mean sea level as determined by reference to the United States Coast and GeodeticSurvey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia GeodeticMonument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourthand Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the landdescribed as follows:

All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, RichmondCounty, Georgia, being depicted as Tract 3 containing 0.83 acre, more or less, on that certain Plat ofthe 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 EngineeringGroup, 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 _____ # ____.

Attachment number

Item # 15


24/91

00412263-14

Hull Barrett 5/16/12Version 14

REYNOLDS STREET PARKING DECK MANAGEMENTAGREEMENT

THIS REYNOLDS STREET PARKING DECK MANAGEMENTAGREEMENT (Agreement) is made effective the ___ day of ________, 2012, by andbetween AUGUSTA, GEORGIA (Owner) and AUGUSTA RIVERFRONT, LLC, aGeorgia limited liability company (Manager).

RECITALS

A. Owner is a political subdivision of the State of Georgia and a consolidatedcity-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 LandBank 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 andJames Brown Boulevard in Augusta, Georgia, and Owner intends to acquire certain airrights 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 thecitizens 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, andin such a way so as to maximize its long-term utilization at rates at or above the non-fixed costs of operation.

D. Owner has further determined that the RSPD be made available to allpersons and groups on such basis, without any preference for business entities orassociations, 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, theAugusta Marriott and the Augusta Marriott Suites (the Hotels), which are situated

adjacent to the Conference Center, Manager has sufficient knowledge as to localconditions and possesses the resources to efficiently operate facilities of a character andlocation comparable to the RSPD, and agrees to provide such time, expertise, andknowledge to Manager as necessary to operate the facilities as required under thisAgreement.

Attachment number 2

Item # 15


25/91

00412263-14

F. Owner desires to have Manager manage and operate the RSPD, andManager is willing to perform such services for the account of Owner on the terms andconditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutualcovenants contained herein, the parties hereto agree as follows:

ARTICLE IDEFINITIONS

1.1 Defined Terms. All capital terms herein and not otherwise defined shallhave the meaning as defined in the CORE Agreement or TEE Center CORE Agreementor the RSPD CORE Agreement, as the context requires. In addition to the terms definedelsewhere in this Agreement, the following terms shall have the meanings assigned tothem 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 Section103 of the Internal Revenue Code of 1986, as amended (the Code), and qualifiedbonds, within the meaning of Section 141 of the Code, to the effect that a proposed actionor amendment will not, without more, impair any exclusion of the interest on anyoutstanding issues of obligations that were issued to finance the RSPD, or result in thedisallowance of any credit against federal income tax or payable to the issuer of suchobligations 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 costof each of which totals $5,000.00 or more, ii) that becomes part of the RSPD, and iii) thecost of which is required or allowed to be capitalized under the accounting guidelines ofAugusta, Georgia and GAAP. Examples of Capital Improvements include but are notlimited to, traffic/parking/access control equipment, furniture, fixtures, roofing, andstriping, 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, theRSPD 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 theOffice of the Clerk of Superior Court of Richmond County, Georgia at Realty Reel 648,

Attachment number 2

Item # 15


26/91


27/91

00412263-14

occupancy tax, gross receipts tax, or other taxes assessed upon or attributable to saidreceipts 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 allrevenues 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 connectionwith this Agreement which provides for the construction and operation of the RSPD andprovides any necessary easements with respect construction or operation of the RSPD.

Salary Costs shall mean the gross amount payable by an employer to securethe services of an employee including, without limitation, employees accrued and vested

wages, salaries, employee medical/disability/life insurance and other health benefitsincurred 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 anyapplicable federal, state and local taxes. For the avoidance of doubt, Salary Costs mayalso 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 andrepair of the TEE Center, adjusted to take into account the differences between a parkingdeck 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 theTEE Center and provides any necessary easements with respect construction or operationof the TEE Center.

RSPD Employees shall have the meaning set forth in Section 5.3(a) b ut shallnot 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 IIAPPOINTMENT OF MANAGER AND OPERATING TERM

2.1 Appointment of Manager; Powers and Duties Generally. Subject toManagers covenants set forth in 5.1, Owner hereby appoints, authorizes, and engages

Manager, and Manager hereby accepts appointment on the terms and conditions

Attachment number 2

Item # 15


28/91

00412263-14

hereinafter provided as agent to: (a) manage, operate, control, license, and rent the RSPDon 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 withthe 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 thereofat rates and on such terms as may be approved by Owner in accordance with the AnnualPlan; and (f) sue and recover for rent and for loss of or damage to any part of the RSPDand, when expedient, compromise, settle and release any such legal proceedings orlawsuits; provided, however, that Manager shall not settle any lawsuit or other claimrelating 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 agreementgranting any party the right to use any portion of the RSPD except as provided in theAnnual Plan. RSPD operations shall be under the exclusive supervision and control ofManager subject to the terms of this Agreement. Manager shall have discretion and

control, free from interference, interruption or disturbance, in all matters relating tomanagement and operation of the RSPD, including, without limitation, charges forlicense and rental, other RSPD services, employment policies, granting of concessions orrenting of space within the RSPD, receipt, holding and disbursement of funds,maintenance of bank accounts, procurement of supplies and services, promotion andpublicity and, in general, all activities necessary for operation of the RSPD.

2.2 Restriction on RSPD Licenses and Rentals. Except as otherwiseadditionally limited hereby, Manager shall have the discretion to prescribe the terms ofthe rental or licensing of space at the RSPD based on generally applicable and uniformlyapplied 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 licensingof 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 beinterpreted, deemed or construed as making Manager a partner or joint venturer withOwner or as creating any similar relationship or entity, and Owner and Manager agreethat they will not make any contrary assertion, contention, claim or counterclaim in anyaction, suit or other legal proceeding.

2.4 Operating Term. Subject to Article IV, the initial Operating Term of thisAgreement shall be for a period commencing on the Effective Date and terminating onthe fifth (5) year anniversary of the Effective Date. The initial Operating Term may berenewed or extended as provided in Section 2.5, 2.6, and 2.7. Notwithstanding theforegoing, this Agreement shall be binding on the date it is signed by Owner andManager and provisions of this Agreement shall survive the Operating Term to the extentspecifically set forth in this Agreement. During the term of this Agreement and anyextension thereof, Owner shall have the right to use the parking spaces located onDevelopers Property and the WAGT Tract after normal business hours and all hourly

Attachment number 2

Item # 15


29/91

00412263-14

parking revenues generated or collected from the use of such parking spaces shall be theproperty of Owner.

2.5 First Option of Owner to Extend Operating Term. Owner, in its solediscretion, may elect, by written notice to Manager, within 60 days from the expiration ofthe initial Operating Term of this Agreement, to renew the initial Operating Term of thisAgreement, for a period equal to the remaining term of the bond financing used forconstruction of the RSPD or any refinancing with respect thereto, but in no event for aterm exceeding the lesser of 5 years or 80% of the remaining useful life of the RSPD (theFirst 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 remainunchanged during such extended Operating Term. In the event Owner elects not torenew this Agreement, Owner shall not be liable for any penalties or other costs of anykind whatsoever by reason of such non-renewal.

2.6 Second Option of Owner to Extend Operating Term. In the eventOwner 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 OperatingTerm of this Agreement, to renew the Operating Term of this Agreement for a periodequal to the remaining term of the bond financing used for construction of the RSPD orany refinancing with respect thereto, but in no event for a term exceeding the lesser of 5years 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 theother terms and conditions of this Agreement shall remain unchanged during suchextended 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 byreason of such non-renewal.

2.7 Right of First Refusal. In the event that Owner does not elect to exerciseits first or second option to extend, and solicits requests for proposals (RFP) for theoperation of the RSPD, then in such event Manager shall have the right to meet the termsand conditions of the RFP of the entity that is deemed to be most qualified to operate theRSPD. If Manager agrees to the terms and conditions contained in such RFP, then thisAgreement shall be renewed, subject to modification to incorporate any terms andconditions consistent with accepted RFP, and right of first refusal shall be continue ineffect, provided however, that the total length of the primary term and all extensions shallnot exceed fifteen (15) years. Should Manager not elect to operate the RSPD pursuant tothe terms and conditions of the accepted RFP, then in such event Manager shall have nofurther 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 IIICOMPENSATION OF MANAGER

3.1 RSPD Management Fee. Commencing on the Effective Date, Ownershall, pay to Manager a Management Fee in the amount of $25,000.00 per year, payable

Attachment number 2

Item # 15


30/91

00412263-14

in equal monthly installments, adjusted upward annually, but not downward, by thepercentage increase in the Consumer Price Index for all urban consumers (CPI-U) (AllItems 1982-84=100) for the preceding calendar year for performing its services under thisAgreement in managing the RSPD. The parties acknowledge that certain property andservices 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 adjacentto the RSPD. Such property and services include, but are not limited to, traffic controlgates and related equipment, sweepers, lighting, and services of a toll both operator (theIncidental Services). The Incidental Services would be required for the operation of

the RSPD whether or not Manager maintained easements for the ground level parkingfacilities, and allowing Manager to benefit from these Incidental Services does notmaterially increase the costs to Owner. Accordingly, in further consideration of thegranting of air rights and easements to Owner for the construction and operation of theRSPD, Manager shall have the right to utilize the Incidental Services for Managersground level parking facilities (whether held in fee simple or easement) locatedunderneath 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 laterthan the fifteenth (15th) day after the end of the month for which the Management Fee isowed and may be remitted by Manager directly to Manager from the Operating Account.

3.3 Survival. The provisions of this Article shall survive termination of thisAgreement.

ARTICLE IVTERMINATION

4.1 Termination. Should either party materially fail to comply with any ofthe terms of this Agreement, the non-defaulting party may cancel this Agreement uponninety (90) days written notice to the other party of the alleged breach and failure bysuch 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 curethe default, the time to cure the default shall be extended for a reasonable period of timein order to allow such cure. In the event the party alleged to be in material default of thisAgreement disputes the existence of such material default, this Agreement shall continuein 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 timeperiods for appeal of such finding have expired.

4.2 Rights and Obligations Following Termination. In addition to therights and remedies otherwise available to the parties at law or in equity, the followingprovisions will apply following termination pursuant to this Article or the expiration ofthe Operating Term.

Attachment number 2

Item # 15


31/91

00412263-14

(a) Manager shall quit, vacate, surrender, and deliver to Ownerpeacefully 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 CapitalAccount, and all other pertinent and necessary documents and records pertaining to theRSPD and the operation thereof. After termination of this Agreement, Owner shall,

without right of offset against Manager, timely pay all unpaid Operating Expensesincurred 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 documentsreasonably requested by Owner and otherwise reasonably cooperate with Owner and anysuccessor manager to insure or facilitate orderly continuation of the business of theRSPD. 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 totermination shall continue; and

(d) All provisions hereof identified herein as surviving termination ofthis Agreement shall survive.

ARTICLE VSERVICES 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 decksaffiliated with trade, exhibit, and event centers of similar size and quality.

(b) Manager acknowledges that a conflict of interest could arisebetween 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 businessesowned or operated (directly or through one or more affiliates) by Manager (ManagersOther 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 theRSPD or for goods or services provided at the RSPD, which comprise part of OperatingRevenues, from the fees or charges authorized to be charged in such circumstancespursuant 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 andacknowledge that an affiliated business of Manager maintains easement rights for thesurface parking below the RSPD, said affiliated business operates and leases the same forprofit, and that such activity is not deemed to be a conflict of interest for purposes of thisparagraph.

Attachment number 2

Item # 15


32/91

00412263-14

(c) Manager shall maintain a separate set of books and records andprepare financial statements reflecting its activities hereunder that are sufficient to enablean auditor to audit the same on the same basis as if such activities were conducted by aseparate accounting unit or single purpose entity.

5.2 Policies and Practices. Manager shall adopt and implementadministrative, accounting, budgeting, marketing, personnel, and operational policies andpractices consistent with industry standards for trade, exhibit, and event centers of similarsize 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, andassign the duties of all personnel which Manager reasonably determines to be necessaryor 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 notgive orders to or otherwise interfere in the day-to-day activities of RSPD Employeesincluding for this purpose Shared Employees.

(b) Selection. Manager agrees to use reasonable and prudent judgmentin the training and supervision of RSPD employees to ensure that they are courteous andefficient, and do not use improper language or act in a loud or boisterous manner whileperforming duties at the RSPD. Manager agrees that it will not discriminate against anyRSPD Employee or applicant for employment for work under this Agreement because ofrace, religion, color, sex, disability, national origin, ancestry, physical handicap, or age.

(c) Appearance and Training. Manager shall ensure that non-management RSPD Employees performing the duties at the RSPD shall be neatly attiredin clean, commercially attractive uniforms. Manager shall train all such employees thatthey are aware of the high standards for cleanliness, courtesy and service required.

(d) Compensation. Manager shall set the salaries and fringe benefitsof all RSPD Employees consistent with industry standards and the Annual Plan. Cost-of-living increases shall not exceed those given by Owner to its employees. Unlessotherwise provided in the Annual Plan, no bonuses or merit raises shall be given withoutthe approval of Owner.

(e) Salary Costs for Full Time RSPD Employees. Although all RSPDEmployees shall be employed by Manager, Owner shall be responsible for all SalaryCosts of RSPD Employees.

(f) Salary Costs of Shared Employees. In order to provide the mostcost-effective services, the parties specifically contemplate that Manager may providecertain 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

Attachment number 2

Item # 15


33/91

00412263-14

shall not mark-up or otherwise add any profit or administrative charge to such SalaryCosts, then, such Salary Costs shall be deemed to be Operating Expenses and shall beremitted to Manager from the Operating Account the same as any other OperatingExpense. Salary Costs of a Shared Employee shall be deemed to have been fairlyallocable 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 theamount of time the Shared Employee exclusively devoted to operation of the RSPD inrelation to the total amount of time worked for the period in question.

(g) Recordkeeping. The books and records required to be maintainedby Manager pursuant to Section 7.5 hereof shall be sufficient to establish the amount oftime 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 equipmentfor the RSPD. Subject to the limitation of 5.4(b), if applicable, Manager may withdrawfunds from the Capital Account to pay for Capital Expenses. Manager shall obtainOwners 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 otherwiseauthorized by the Annual Plan.

(b) General Limitation. Except as otherwise expressly authorized herein, anyCapital Expense exceeding the budgeted amount(s) set forth in the Annual Plan for suchcategory 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 amountheld 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 theManager, subject to the terms of the Annual Plan.

5.6 Legal Services. Manager is authorized to engage such legal counsel asManager deems reasonably necessary for the ordinary operational legal matters for theRSPD, the reasonable costs and expenses of which shall be an Operating Expense. Withthe advice and consent of Owner, Manager shall institute any necessary or desirable legalactions 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 theoperation of the RSPD.

5.7 Compliance with Government Rules and Regulations. Manager shalloperate the RSPD in compliance with all applicable federal, state and local laws andinsure 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 allegationof default with respect to non-compliance by the RSPD with any applicable federal, state

Attachment number 2

Item # 15


34/91

00412263-14

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 andhazardous waste laws.

5.8 Limitation Upon Obligations. In the event that the performance of anyof 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 shallbe under no obligation to provide such funds from any source other than amounts thenheld 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 ofOwner. Owner shall indemnify, defend, and hold Manager harmless from and againstany and all liabilities, claims, suits, fines, penalties, damages, judgments, fees, costs andexpenses (including, but not limited to attorneys fees and disbursements) related to theperformance 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, withoutOwners 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 inquestion: (i) does not have a term exceeding the lesser of one year and the then remainingOperating Term, (ii) the aggregate annual Operating Expense attributable to the contractdoes not exceed $5,000, (iii) does not authorize the vendor or service provider to use anyportion of the RSPD unless the compensation therefor is not based on the net profitsarising from such service or activity, and (iv) is not inconsistent with the applicableAnnual Plan. Manager shall promptly notify Owner of the execution of such contracts.

(b) Special Indemnity. In the event Manager, in its own name or asagent 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 limitedto 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 thecontrary, any costs related to duties imposed on Manager shall, except to the extentincurred as a result of Managers gross negligence, willful misconduct or breach of thisAgreement, be at Owners cost, in which case the costs of such action shall be anOperating Expense and may be paid from the Operating Account.

ARTICLE VIBANK 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 serveas an operating account for the RSPD (the Operating Account). and (b) a bank

Attachment number 2

Item # 15


35/91

00412263-14

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 allOperating Revenues into the Operating Account. All Operating Revenues, whether ornot deposited into such account, shall be solely the property of Owner. All OperatingExpenses shall be borne exclusively by Owner. Manager shall have authority to executechecks, 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 theend of any quarter exceeds the amount reasonably anticipated to be necessary for theoperation of the RSPD for the succeeding quater, Manager shall distribute such excessamount to Owner not later than fifteen days of the close of the quarter.. If at any time theOperating Account contains less than the reasonably anticipated Operating Expenses fora period of time not longer than the ensuing 90 days, Manager shall so advise Owner inwriting, accompanied by an (pro-forma) operating budget, that was submitted as part ofthe 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 theOperating Account within ten (10) business days of receipt of such notice. The intent ofthis section is that the Operating Account shall, at all times, contain a permitted reservesufficient to cover Operating Expenses for the next 90 days, without regard to the futurereceipt of any Operati

Documents

ARC 6282012 Parking Deck Agenda Items