COMMUNITY DEVELOPMENT CONTRACT BETWEEN AUSTIN LAWRENCE PARTNERS-EAST LLC AND THE COUNTY OF DURHAM WITNESSETH:

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1 COMMUNITY DEVELOPMENT CONTRACT BETWEEN AUSTIN LAWRENCE PARTNERS-EAST LLC AND THE COUNTY OF DURHAM This Agreement (the Agreement ), is made, dated and entered into as of the day of, 2014, by and between the County of Durham ( County ), a North Carolina municipal corporation and Austin Lawrence Partners-East, L.L.C. ( ALP East, L.L.C. or Company ), a corporation organized and existing under the laws of the State of Colorado and registered to do business in the State of North Carolina. The County and the Company are also referred to individually as Party and collectively as Parties. WITNESSETH: WHEREAS, Company is the beneficial owner of property located at 202 North Corcoran Street, Durham, on which sits the historic Jack Tar Motel and parking deck. The motel and parking deck are located in the Downtown Durham National Historic District. The motel was built in 1962, modified in 1966 and is considered an example of Modernism architecture. Its simple form and use of glass, steel and concrete helps establish the unique character of the district; and WHEREAS, the motel is not subject to historic preservation restrictions and is not located in a zoning district as to require preservation of the historic building, and thus could be demolished by the Company or any subsequent owner at anytime without notice; and WHEREAS, the proposed redevelopment of the Jack Tar Motel and parking deck is essential to the development of the proposed City Center Building to be located directly across the street at 119 W. Parrish Street; and WHEREAS, the proposed City Center Building is a 25 story mixed-used building consisting of two floors of sub-grade parking (174 spaces), a five floor plinth with ground floor retail, four floors of office space, and a 20-story residential tower; and WHEREAS, the Jack Tar Motel and parking deck is needed to support the City Center Building s projected commercial demand for 360 parking spaces; and WHEREAS, the County finds that in order to aid and encourage the renovation and preservation of the historic Jack Tar Motel Property, its unique architecture and historical significance to the community, it is necessary and desirable to provide financial assistance for the Company to preserve the Property as described herein; and WHEREAS, the proposed new hotel is necessary for the support of the Durham Convention Center; and WHEREAS, the County is authorized to enter into this agreement pursuant to North Carolina General Statutes ( N.C.G.S. ) 153A-149(c)(14), and 153A-376(a)(1). NOW, THEREFORE, for valuable consideration and mutual covenants exchanged between the parties hereto, it is agreed as follows: The parties, intending to be legally bound, agree as follows: 1. DEFINITIONS

2 1.1 Certificate of Compliance, refers to the final, official document issued by the City of Durham certifying that a newly constructed or renovated building or structure consisting of approximately (a) 120,000 square feet of rentable office space, (b) 20,000 square feet of rentable retail space, (c) 132 residential units, and (d) 174 parking spaces associated with the City Center Building and (e) an operating hotel, (f) ground floor retail space and (g) approximately 260 parking spaces associated with the Jack Tar Building is in compliance with applicable building codes, regulations and laws, such that said buildings or structures may be lawfully and beneficially occupied for its intended purpose as contemplated by the Parties pursuant to this Agreement. 1.2 City Center Building, refers to the Capital Investment improvements to be made to the following property addresses and Parcel ID Numbers: (a) 119 W. Parrish St., PIN: ; (b) 113 W. Parrish St., PIN: ; (c) 118 W. Main St., PIN: ; (d) 120 W. Main St., PIN: ; and (e) 122 W. Main St., PIN: Commercial Space, refers to total square footage of rentable office, commercial, and retail space described in the Use Development Requirements planned for both the City Center Building and the Jack Tar Building. 1.4 Construction Activities, refers to activities necessary for the construction of the City Center Building and the Preservation Requirements to the Jack Tar Building evidenced by the required issuance of a building permit from the City of Durham. 1.5 Continuous Occupancy, refers to the maintenance of an average occupancy of at least 50% of the Commercial Space based upon valid lease agreement(s) and calculated by taking the total square feet of Commercial Space actually leased times the number of days leased during the three-year period immediately preceding the date of receipt by the County of the invoice for a County Payment, and divided that number by the total rentable square feet of Commercial Space times the number of days in the subject three year period. 1.6 Continuous Operation, refers to the operations of the Jack Tar Building after completion of the Preservation Requirements, such that the hotel is open and available to accept hotel room occupants at least 95% (i.e., 346 days) of the applicable year. 1.7 County Payment, refers to the payments the Company is eligible to receive from the County if the Company meets all of the conditions of this Agreement as set forth herein. 1.8 First Date of Operations, refers to the first day of the calendar month immediately following the date on which the Company demonstrates to the satisfaction of the County that the Company has fully complied with all the provisions as set forth in Section 2 herein, unless such date actually falls on the first day of any calendar month. 1.9 Jack Tar Building, refers to Capital Investment improvements to be made to current motel and parking garage structure located at 202 N. Corcoran Street, PIN: Material Obligations, refers to those obligations which Company shall fulfill under this agreement to avoid triggering the Default Provision as outlined in Section 11 herein. These material obligations include all Company Requirements and Obligations as outlined in Section 2 of this agreement Minimum Required Capital Investment, refers to a minimum expenditure of Sixty Five Page 2 of 10

3 Million Dollars ($65,000,000) in capital investment to be made to the Property Preservation Requirements, refers to the specific improvements or renovations to be made to the Jack Tar Building by the Company, which Company shall deliver a boutique hotel with no less than 70 guest rooms with ground floor retail space. Company shall also provide a renovated 260 space parking deck with 50 daytime parking spaces available for public use and 50 plus parking spaces for public use on nights and weekends Property, refers collectively to the City Center Building and the Jack Tar Building Use Development Requirements, refers collectively to the planned development uses that will result from the Capital Investment to be made to the Property. For the City Center Building, the Use Development Requirements include approximately (a) 120,000 square feet of rentable office space, (b) 20,000 square feet of rentable retail space, (c) 132 residential units, and (d) 174 parking spaces. The Use Development Requirements for the Jack Tar Building include (e) an operating hotel, (f) ground floor retail space and (g) approximately 260 parking spaces. For purposes of the definition of Use Development Requirements, the term approximately as used in this definition shall mean no less than a 10% downward deviation in any unit of use development listed above. 2. COMPANY REQUIREMENTS AND OBLIGATIONS 2.1. Company Requirements for County Payment. As a precondition to eligibility for County Payments, the Company shall comply with the following requirements: Commencement and Completion of Construction. The Company shall begin Construction Activities no later than July 1, 2015 ( Commencement Date ) and secure a final Certificate of Compliance for 100% of the improvements made to the Commercial Space, all of the Jack Tar Building, and 75% of the total residential units of the City Center Building built by July 1, 2017 (hereinafter, Completion Date ) Preservation Requirements. The Company shall cause to be invested the Minimum Required Capital Investment of Sixty Five Million Dollars ($65,000,000.00) in connection with development of the City Center Building, and the restoration of the Jack Tar Building that satisfies the North Carolina State Historic Preservation Office Standards for Rehabilitation as set out at and incorporated herein. Further, in an effort to retain the historical significance of the Jack Tar Building, Company shall maintain the historic building façade New Qualified Job Creation. The Company agrees that it will create and maintain throughout the life of this agreement a minimum of 10 new Qualified Jobs at the Jack Tar Building on or before the second anniversary of the First Date of Operations. For purposes of this Agreement, Qualified Jobs is defined as a net increase in the Company s number of full time employees at the hotel, whose wages are subject to withholding tax. Qualified Jobs shall not include temporary, contract, or construction workers. The Company agrees to provide health insurance or a health care subsidy benefit for its full time New Employees at the hotel. The average wage for Qualified Jobs must equal at least the average wage as to each category of non-tip based employee hired, as defined by the Employment Security Commission, which is currently listed at: &AreaType=04&AreaName=Durham+County. Page 3 of 10

4 So long as the Company creates and fills the Qualified Jobs to the extent required hereunder, the Company may replace any employee filling such position from time to time in the Company s discretion. It is agreed that if Company uses good faith efforts to create positions, creation of a minimum of 10 Qualified Jobs will satisfy this condition Good Faith Efforts to Contract with Durham Firms. In order to assist the County, the Company agrees to use commercially reasonable efforts to hire Durham County residents and subcontractors when appropriate and feasible Workforce Development and Hospitality Programs. The Company will make good faith efforts to work with the Hospitality and Tourism programs of North Carolina Central University and Durham Technical Community College to provide training and employment opportunities for program participants throughout the Term of this Agreement. Further, the Company will work with the City of Durham s Office of Economic and Workforce Development and its JobLink Career Center to advertise, recruit and promote job opportunities at the hotel. The Company shall provide the County a report or other evidence of the Company s workforce development activities upon request. The company shall comply with the terms and conditions relating to the Workforce Development Plan and Durham-Based Business Plan as outlined in the agreement between the Company and the City of Durham Maintenance of Continuous Operations. Following the First Date of Operations, the Company shall maintain a hotel in the Jack Tar Building in Continuous Operation throughout the Term of this Agreement. Failure to maintain Continuous Operations shall be deemed a Default, subject to section 10 below. Notwithstanding the Continuous Operations requirement, the Company shall be permitted to temporarily cease operations at the hotel for a period not to exceed 180 days one time during any consecutive five year period throughout the term of this Agreement Maintenance of Minimum Level of Continuous Occupancy. Following the First Date of Operations, and subject to Section 22 below, the Company shall maintain the Commercial Space associated with the Property in Continuous Occupancy throughout the term of this Agreement. Failure to maintain Continuous Occupancy shall be deemed a Default, subject to section 10 below. Notwithstanding the Continuous Occupancy requirement, the Company shall be permitted to exclude certain vacancy space from the Continuous Occupancy calculation for new tenant up fit requirements, but such excluded vacancy period may not exceed 180 days Rehabilitation of Parking Deck. The Company shall rehabilitate the parking deck at the Jack Tar Building to include, within a +/- 10% variance, 260 parking spaces with 50 of those parking spaces allocated to day time parking for the public and 50 plus spaces allocated to the public on nights and weekends Before receiving the first payment the Company shall certify that the Company has expended at least Ten Million Dollars ($10,000,000.00) on the acquisition and restoration of the Jack Tar Building and that all monies received from the County is partial reimbursement for those expenditures. 3. COMPENSATION County Payment. Subject to the conditions set forth in Section 2, the County agrees to pay to the Company Two Hundred Sixty Four Thousand Eight Hundred Seventy Three Dollars Page 4 of 10

5 (264,873.00) annually for a term of fifteen (15) years as a financial assistance to preserve the Jack Tar Building in a manner consistent with the Preservation Requirements as set forth herein. The total maximum possible County Payments shall not exceed Three Million Nine Hundred Seventy Three Thousand Ninety Five Dollars ($3,973,095.00) over the term of this Agreement Invoicing and Timing of Payments -- The Company shall send invoices to the County for the aforementioned County Payment amounts to be paid pursuant to this Agreement. Each invoice shall document, to the reasonable satisfaction of the County: confirmation that the Company has complied with required preconditions to be eligible for the County Payments, including documentation to show that Company is current with its payment of property taxes and such additional information as may be reasonably requested by the County. Within 60 days after the County receives a County Payment invoice, with appropriate documentation, the County shall send the Company a check for the applicable County Payment Year 1 County Payment Timing. The Company may invoice the County for the Year 1 County Payment no earlier than July 1 of the first calendar year that begins after the First Date of Operations. By way of example, if the First Date of Operations is determined to be June 1, 2017, the earliest that the Company could invoice the County for the Year 1 County Payment would be July 1, Year 2 though Year 15 County Payment Timing. The Company may invoice the County annually for each County Payments Year 2 through Year 15 beginning on the 1 st anniversary of the Year 1 County Payment. To be eligible for each annual County Payment, the invoice shall show proof of compliance with Section 2 herein. A proper request for payment must include the following: (a) name and address of the Company, (b) the Company s Federal Tax Identification Number, (c) payment amount due, (d) Certificate of Compliance for the Property (e) completed New Jobs Report form (Attachment 1), and (f) any such other information deemed necessary by the County to ensure compliance with the terms of this Agreement and specifically requested in a written notice to the Company. County shall pay said invoice within 60 days of receipt and approval. 3.2 Payment not deemed a Waiver. No County Payment made shall constitute a waiver of any of the conditions of the Company s obligations hereunder. 3.3 No additional Tax Credits or Tax Exemptions. To induce the County to enter into this Agreement, Company covenants and agrees that during the Term of this Agreement, no new or additional application for designation of any portion of the Property pursuant to N.C.G.S. 160A or any similar or successor statute, shall be submitted to the City or County which would have the effect of reducing the tax revenue of the County for all or any portion of the real estate which comprises the Property. The Company further agrees that no application for exemption from ad valorem property taxes shall be submitted to the City or County for any portion of the Property. Notwithstanding the foregoing, the Company shall not be prohibited from seeking or obtaining the continuation of the existing landmark status of the Property or from pursuing or participating in programs for credits or deductions related to state or federal income tax. Unless the County waives this Section 3.3 requirement in writing, failure of the Company to comply with this Section 3.3 shall release the County of its obligation to make any further County Payment otherwise required and shall allow the County to seek reimbursement for all County Payment made as of the date of non-compliance by the Company of this Section 3.3 in an amount Page 5 of 10

6 equal to the County Payment(s) made to the Company for the year(s) during which such ad valorem property tax exemption applied. 3.4 Minimum Room Occupancy Requirement. To ensure that the hotel is operating at a successful level, in turn assuring the need for continued jobs, and in order to retain its eligibility for ongoing Incentive Payments, beginning in year 3, Company shall maintain a minimum room occupancy of at least 60% annually throughout the term of this agreement ( Minimum Room Occupancy ). Company shall provide County, beginning with its request for incentive payment 3, twelve individual monthly STAR reports (from STR Global) from the immediately preceding twelve months which the County can use to verify the calculation of annual occupancy, which shall be the mathematical average of occupancy rates during the twelve months. Failure to achieve the Minimum Room Occupancy shall result in a reduction of the requested year s annual County Incentive Payment as set forth in section 3.5 below. 3.5 Reduction in Annual Payments. If Company fails to meet the Minimum Room Occupancy Requirements set forth in section 3.4, then up to 15% of the Annual Payment due in that year shall be reduced by 10% for each percentage point below the Minimum Room Occupancy Requirement. The maximum annual payment loss under this section shall be $39, ($264, X 15%). For Example, if Company achieves 55% annual room occupancy, then, the then current Annual Payment due would be reduced by 50% of $39,731, and an annual Room Occupancy rate of 50% would result in a 100% loss of $39, TERM OF AGREEMENT. The Effective Date of this Agreement shall be the date first written above and shall end June 30, 2033, unless terminated earlier as provided herein (hereinafter referred to as the Term ). 5. TIME OF ESSENCE. Notwithstanding any other provision contained in this Agreement, the County shall have no obligation to and shall not make any payment to the Company pursuant to this Agreement if the construction of the Property is not completed by the Completion Date as described in Section INDEMNIFICATION. To the fullest extent permitted by laws and regulations, the Company shall indemnify and hold harmless the County and its officials, agents, and employees from and against all claims, damages, losses, and expenses, direct, indirect, or consequential (including but not limited to fees and charges of attorneys, and other professionals and costs related to court action or mediation) arising out of or resulting from the Company s failure to perform its obligations under this Contract. This indemnification shall survive the termination of this Contract. 7. ADDRESS CONTACT INFORMATION. The payment by the Company pursuant to this Agreement shall be mailed to: Chief Financial Officer Austin Lawrence Partners-East, L.L.C. 532 East Hopkins Avenue Aspen, CO When a notice is required or permitted by this Agreement, it shall be given by written notice to the County by delivery to: Attn: County Manager County of Durham 200 E. Main Street Page 6 of 10

7 Durham, North Carolina CHANGE OF ADDRESS. DATE NOTICE DEEMED GIVEN. A change of address, fax number, or person to receive notice may be made by either party by notice given to the other party. Any notice or other communication under this agreement shall be deemed given at the time of actual delivery, if it is personally delivered or sent by fax. If the notice or other communication is sent by United States mail, it shall be deemed given upon the third calendar day following the day on which such notice or other communication is deposited with the United States Postal Service or upon actual delivery, whichever first occurs. 9. COORDINATION WITH CITY AGREEMENT. The Company acknowledges it has requested assistance from both the City and County governments of Durham as necessary to realize the proposed improvements and development of the Property. The Company further acknowledges that the terms of this Agreement are intended to coordinate and complement the agreement with the City, which will likely be approved and executed at a different time than this Agreement. The County enters into this agreement in reliance on the representation that the Company requires assistance from both the City and County to complete the improvements to the Property. Failure of the Company to enter into a development agreement with the City for the Property shall cause this Agreement with the County to be deemed null and void. Furthermore, if the Company breaches any terms of its agreement with the City and is found to be in default by the City (after failing to cure), the Company shall also be found in default of this Agreement with the County. 10. ASSIGNMENT, SUCCESSORS AND ASSIGNS. Without the County s written consent, the Company shall not assign (which includes to delegate) any of its rights (including the right to payment) or duties that arise out of this Agreement. Unless the County otherwise agrees in writing, the Company and all assignees shall be liable for all of the Company s duties that arise out of this Agreement and all of the County s claims that arise out of this Agreement. Without granting the Company the right to assign, it is agreed that the duties of the Company that arise out of this Agreement shall be binding upon it and its heirs, personal representatives, successors, and assigns. Notwithstanding the foregoing limitations on assignment, the County s consent shall not be required for an assignment of the Company s rights and duties hereunder if: a) the Company makes such assignment to any entity that is under majority control of Company or where ALP East is a managing member; or b) the Company makes such assignment in connection with the sale of the Property, but the Jack Tar Building continues to be operated as a hotel and parking garage and the assignee specifically assumes all of the obligations of the agreement. 11. DEFAULT AND TERMINATION. If the Company fails to fulfill any of its material obligations under the Agreement, or if any certification made by the Company is materially false, then in that event, subject to the notice and cure provisions in Section 24, the County may hold the Company in default and (a) terminate this Agreement and make no further payments to Company, and (b) in the case of a materially false certification by Company, may recover all prior payments made under this agreement. In either event, the County may recover reasonable direct expenses incurred by the County in connection with the Company s materially false certifications or failure to fulfill its obligations pursuant to this Agreement, including reasonable attorney s fees. If the Company does not deliver to the County the certification of compliance pursuant to Section 2.1, and does not seek payment under Section 3.1, the Company shall not be considered in default for failing to deliver the required certification. In the event the Company fails to provide such required certification(s) pursuant to Section 2.1 above within 18 months after the First Date of Operations, either party shall have the right to terminate this Agreement. The Parties agree that the only obligation of the County under this Agreement is to pay the company the County Payment pursuant to the terms herein under Section 3.1. Accordingly, if the County defaults on its obligation to make such incentive payment pursuant to this Agreement, the Company s sole claim or remedy at law shall be the value of the County payment(s) that the County was found obligated to pay. Page 7 of 10

8 12. NON-DISCRIMINATION. The Company shall not discriminate against any person on the grounds of race, color, national origin, sex, age, or disability in the administration of this Agreement. Nor shall any person be excluded from participation in, or be denied the benefits of any project constructed under this Agreement on the grounds of race, color, national origin, sex, age, or disability 13. CHOICE OF LAW AND FORUM. This Agreement shall be deemed made in Durham County, North Carolina. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina. The exclusive forum and venue for all actions arising out of this Agreement shall be the North Carolina General Court of Justice in Durham County. Such actions shall neither be commenced in nor removed to federal court. This subsection shall not apply to subsequent actions to enforce a judgment entered in actions heard pursuant to this section. 14. MODIFICATIONS, ENTIRE CONTRACT. A modification of this Agreement is not valid unless signed by both parties and otherwise in accordance with requirements of law. This contract contains the entire agreement between the parties pertaining to the subject matter of this Agreement. With respect to that subject matter, there are no promises, agreements, conditions, inducements, warranties, or understandings, written or oral, expressed or implied, between the parties, other than as set forth or referenced in this contract. 15. PRINCIPLES OF INTERPRETATION AND DEFINITIONS. In this Agreement, unless the context requires otherwise: (1) The singular includes the plural and the plural the singular. The pronouns it and its include the masculine and feminine. References to statutes or regulations include all statutory or regulatory provisions consolidating, amending, or replacing the statute or regulation. References to contracts and agreements shall be deemed to include all amendments to them. The words include, including, etc. mean include, including, etc. without limitation. (2) References to a Section or section shall mean a section of this contract. (3) Contract and Agreement, whether or not capitalized, refer to this instrument. (4) Titles of sections, paragraphs, and articles are for convenience only, and shall not be construed to affect the meaning of this contract. (5) Duties includes obligations. (6) The word person includes natural persons, firms, companies, associations, partnerships, trusts, corporations, governmental agencies and units, and other legal entities. (7) The word shall is mandatory. (8) The word day means calendar day. 16. WAIVER. No action or failure to act by either party shall constitute a waiver of any of its rights or remedies that arise out of this contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 17. PERFORMANCE OF GOVERNMENT FUNCTIONS. Nothing contained in this contract shall be deemed or construed so as to in any way estop, limit, or impair the County from exercising or performing any regulatory, policing, legislative, governmental, or other powers or functions. 18. SEVERABILITY. If any provision of this agreement shall be unenforceable, the remainder of this contract shall be enforceable to the extent permitted by law. 19. COMPLIANCE WITH LAW. In performing all of the Work, the Company shall comply with all applicable law. 20. NO THIRD PARTY RIGHTS CREATED. This Agreement is intended for the benefit of the County and the Company and not any other person. 21. NO JOINT VENTURE. Nothing in this Agreement is intended or shall be considered to create a Page 8 of 10

9 joint venture or partnership between the County and the Company nor be interpreted to deem either the agent of the other or to make the County in any way responsible for the duties, responsibilities, obligations, liabilities, debts or losses of the Company. 22. FORCE MAJEURE. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of the following: labor dispute, including strike and lockout; unavailability of essential materials, riot; epidemic; war, acts of God, fire; explosion; accident; delays or default of the other party, then performance of such act shall be excused for the period of the delay, and thereafter the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. However, a party may take advantage of the preceding sentence only to the extent that the event is not substantially caused by the party to this Agreement who seeks to use said event as an excuse for failure to perform. A party must use its best efforts to perform despite said events and its best efforts to prevent or cure the effects of said event insofar as it prevents performance. 23. E-VERIFY. As a condition of payment for services rendered under this agreement, Company shall comply with the requirements of Article 2 of Chapter 64 of the General Statutes. Company shall verify, by affidavit, compliance of the terms of this section upon request by the County. 24. CURE PERIOD. No default by either party hereto shall result in a termination or limitation of any rights of such party hereunder unless and until the other party shall have notified the defaulting party in writing of said default, and the defaulting party shall have failed to cure said default within thirty (30) days after the receipt of said written notice provided, however, that if the default cannot, by its nature, be cured within such thirty (30) day period, but the defaulting party commences and diligently pursues a cure of such default promptly within the initial thirty (30) day cure period, then the other party shall not exercise its remedies or limit the rights of the defaulting party unless such default remains uncured for more than ninety (90) days after the initial delivery of the other parties original default notice; provided, however, that the cure period for any default related to the making of the Capital Investment shall be one hundred eighty (180) days. [Remainder left Blank, Signatures to follow] Page 9 of 10

10 IN WITNESS WHEREOF, the County and the Company have caused this agreement to be executed under seal themselves or by their respective duly authorized agents or officers. ATTEST: COUNTY OF DURHAM Michelle Parker-Evans, Clerk to the Board By: This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. George K. Quick, Durham County Finance Officer AUSTIN LAWRENCE PARTNERS-EAST, LLC By:, President Attest: Printed Name/Title Page 10 of 10