KNOWLEDGE PARK DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF ROCK HILL, SOUTH CAROLINA, AND SORA-PHELPS ROCK HILL, LLC

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1 KNOWLEDGE PARK DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF ROCK HILL, SOUTH CAROLINA, AND SORA-PHELPS ROCK HILL, LLC { } 1

2 RECITALS 1. The Property 5 2. Future Agreements..5 3 Conflicting Terms Definitions Parties Relationship of the Parties Legal Description of the Real Property Intent of the Parties Consistency with the City s Comprehensive Plan and Land Development Regulations Legislative Act Applicable Land Use Regulations Building Codes and Laws Other Than Land Use Regulations Local Development Permits and Other Permits Needed Vested Rights Governing the Development of the Real Property Funding Sources for Infrastructure Project Development City s Obligation to Complete Public Improvements Environmental Remediation Term of the Agreement Amending or Canceling the Agreement Modifying or Suspending the Agreement Periodic Review { } 2

3 23. Severability Merger Conflicts of Law Remedies Recording Third Parties City Approval of Agreement Successors and Assigns Compliance with Financing Agreement; Default General Terms and Conditions { } 3

4 EXHIBITS Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Legal Description and Boundary Depiction (To Be Attached Later) Development Plan (Color) Development Schedule, Takedown Schedule and Purchase Price Schedule Development Agreement Ordinance (To Be Attached Later) Form of Deed of Conveyance (To Be Attached Later) Necessary Infrastructure Facilities Additional Infrastructure Facilities { } 4

5 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (together with the Exhibits attached hereto, the Agreement ) is entered into effective as of the day of, 2015 (the Effective Date ), by and between THE CITY OF ROCK HILL, a political subdivision of the State of South Carolina (the "City"), and SORA-PHELPS ROCK HILL, LLC, a Delaware limited liability company (with its successors and permitted assigns, the Developer ). The City and Developer are sometimes separately referred to in this Agreement as a party or jointly referred to as the parties. BACKGROUND STATEMENT This Agreement is predicated upon the following: A. The Code of Laws of South Carolina (the "S.C. Code") Sections through , as it exists on the Effective Date of this Agreement (the "Act"), enables cities to enter into binding development agreements with entities intending to develop real property under certain conditions set forth in the Act. B. Pursuant to the Act, the City conducted public hearings regarding its consideration of this Agreement on, 2015 and, 2015, after publishing and announcing notice, in accordance with the Act and the current City Zoning Ordinance adopted December 11, 2005, as amended. C. The City Council adopted Ordinance Number on, 2015, (a) determining that this Agreement is consistent with the Act, the City Comprehensive Plan, and the Current Regulations, hereinafter defined, of the City, and (b) approving this Agreement. A copy of the Ordinance is attached hereto as Exhibit D. NOW, THEREFORE, in consideration of the premises of this Agreement and the mutual benefits to the parties, the parties agree as follows: 1. The Real Property. The Real Property subject to this Agreement currently consists of approximately acres, more or less. For purposes of the Act, the Parties confirm and agree that the entirety of the Real Property consists of highland area. A legal description of the Real Property is set forth in Exhibit A, and the boundary lines of the Real Property are shown on the depiction contained in Exhibit A. 2. Future Agreements and Bonds; Future Zoning; Purchase of Phase 1 and Phase 2. a. Notwithstanding any other terms or provisions of this Agreement, this Agreement shall automatically terminate in the event the following conditions are not satisfied during the Inspection Period (collectively, the Pre-Conditions to Development Agreement ): { } 5

6 i. The Parties must mutually agree upon and establish a Municipal Improvement District (if required by the Financing Agreement), a Financing Agreement and any other related agreements and approvals required by law. As a condition of the Financing Agreement, the Parties agree that the City will require payment and performance bonds from the Developer or its contractors, as well as any other requirements necessary to assure the City and its bondholders that: (1) Development of Phase 1 and Phase 2 shall create enough tax increment, in conjunction with the Developer Contribution, to fund debt service on any bonds that are issued to construct the Necessary Infrastructure Facilities described under Paragraph 17; and (2) Development of the remaining portion of the Real Property shall create enough tax increment, in conjunction with the Developer Contribution, to fund debt service on any additional TIF bonds that are issued to construct the Additional Infrastructure Facilities. In addition, the Parties anticipate that the Financing Agreement shall address and deal with, among other matters, (i) the timing and necessity of the creation of a Municipal Improvement District, (ii) the timing and responsibility for the completion of the Necessary Infrastructure Facilities and Additional Infrastructure Facilities and issuance of any associated TIF or Municipal Improvement District debt, (iii) the manner by which Developer shall be required to fund any shortfall on TIF debt issued to fund the completion of the Public Improvements in the event that the Project at any time does not generate tax increment sufficient to service such debt, (iv) the manner in which the required Developer Contribution shall be applied by the City towards servicing of TIF debt issued in connection with the completion of the Public Improvements or directly towards the cost of the Public Improvements, (v) any obligation of the City (out of the tax increment generated by the Project) to reimburse Developer for any TIF debt shortfall payments made by Developer or its affiliates (including by payment of any Municipal Improvement District assessments), (vi) whether or not the City shall be required to apply to the servicing of the TIF debt issued on the Project any revenues generated by the Public Improvements (such as parking fees, public transportation usage fees, and the like), and (vii) negotiation of a project management agreement. The City shall not be obligated to proceed with issuance of bonds until such time as the Developer has completed its due diligence during the Inspection Period (defined under paragraph 16(f)(v)). ii. The Parties must mutually agree upon the Planned Development Zoning for the Real Property, and the Planned Development Zoning shall be adopted by appropriate action of City s city council. Certain portions of the City of Rock Hill Zoning Ordinance normally require certain zoning and use related pre-conditions and requirements prior to enactment. Since the Development Agreement contemplates Planned Development Zoning approval at a later date, Council waived such preconditions and requirements as part of the Ordinance, except that Council will require that the Planned Development Zoning approvals contemplated under this Agreement follow a full and open public process. Therefore, Council may require, as part of the Planned Development Zoning under this Agreement, that the zoning process follow notice and other required pre-conditions as may be required by the City ( Zoning Approval Requirements ). The Parties must satisfy the Zoning Approval Requirements prior to expiration of the Inspection Period { } 6

7 The Planned Development Zoning shall include the following elements that must be mutually agreed upon during the Inspection Period: (1) a public transportation element; (2) architectural review and approval guidelines; (3) any flexibility in the Development as negotiated by the Parties; (4) Public Improvements (to include space reserved for public uses and amenities) and (5) any traffic impact analysis that may be required as well as other traffic considerations. iii. Developer shall have satisfied itself with the condition of the Real Property and of the feasibility of developing and completing the Project within the Inspection Period and as more particularly provided for in Paragraph 16(f)(v) hereafter. Should Developer not be satisfied in any respect with the condition of the Property or with the feasibility of the Project for any reason or no reason at all, it may terminate this Agreement by providing notice to City on or prior to the expiration of the Inspection Period. Upon such termination, neither party shall have any further rights nor obligations hereunder, except as otherwise expressly set forth herein. Should Developer fail to so terminate this Agreement, the foregoing Pre-Condition to Development Agreement shall be deemed to have been satisfied within the Inspection Period. b. Failure to satisfy the Pre-Conditions to Development Agreement during the Inspection Period shall render this Agreement null and void. c. The Parties shall diligently commence and continue negotiations, inspections and other activities from the Effective Date through the end of the Inspection Period. The approval of the agreements and conditions contained under this Agreement are not to be considered amendments to this Agreement but rather fulfillments of conditions to this Agreement. No further action shall be required to make this Agreement effective upon satisfaction of the above conditions. 3. Conflicting Terms; Conflicting Requirements. In the event of a conflict between the requirements of this Agreement and the requirements of any exhibits or the Financing Agreement, the more stringent requirements shall apply. 4. Definitions. In this Agreement, unless the word or phrase is non-capitalized: a. Agreement means this Development Agreement, including the recitals and exhibits attached hereto. b. Building Dimensional Standards means minimum standards for the area, width, building coverage, building setback, height and yard requirements for Lots or Development Parcels. c. City means The City of Rock Hill, South Carolina. d. Comprehensive Plan means the City Comprehensive Plan, as amended from time to time prior to the Effective Date of this Agreement, and adopted pursuant to { } 7

8 S.C. Code Section , et seq., , et seq., , et seq., or and the official map adopted pursuant to S.C. Code Section , et seq. e. Current Regulations means the Comprehensive Plan; Municipal Code, City of Rock Hill, South Carolina, adopted November 26, 2001 and as amended prior to the Effective Date of this Agreement; the City Zoning Ordinance; the Planned Development Zoning; the Development Plan attached hereto as Exhibit B; and, and to the extent not inconsistent with the Planned Development Zoning, the Land Development Regulations as in effect on the Effective Date of this Agreement, all subject to Paragraph 9 below. f. Development means the planning for or carrying out of a building activity, the making of a material change in the use or appearance of any structure or property, or the dividing of land into three or more parcels, and is intended by the Parties to include all uses of, activities upon or changes to the Real Property as are authorized by the Agreement. Development, as designed in a land or development permit, includes the planning for and all other activity customarily associated with it unless otherwise specified. When appropriate to the context, Development refers to the planning for or the act of developing or to the result of development. Reference to a specific operation is not intended to mean that the operation or activity, when part of other operations or activities, are not development. Reference to particular operations is not intended to limit the generality of this item. g. Development Parcel means any tract of land on which Development may occur, including platted Lots and unplatted parcels, but excluding street rights-ofway. h. Development Permit includes a building permit, zoning permit, subdivision approval, rezoning certification, special exception, variance, certificate of occupancy and any other official action of Local Government having the effect of permitting the Development or use of property. i. Development Plan means the master plan for the Project, attached hereto as Exhibit B. j. Facilities means major capital or community improvements including, but not limited to, transportation, sanitary sewer, solid waste, drainage, and potable water. The Developer is specifically exempted from any City requirement for the provision of facilities relating to public education, public health systems and facilities, libraries, public housing, jails and other detention sites, courts, police and trash or garbage disposal sites. Such exemptions shall not, however, exempt Developer from payment of applicable user fees for any such facilities. k. Financing Agreement means the financing agreement, approved by City Council, between Sora Phelps Rock Hill, LLC and the City of Rock Hill, South Carolina { } 8

9 l. Land Development Regulation means ordinances and regulations enacted by the City or the State of South Carolina for the regulation of any aspect of Development and includes City zoning, subdivision, building construction, occupancy or sign regulations or any other regulations controlling the Development or use of property. m. Law means all ordinances, resolutions, regulations, comprehensive plans, Land Development Regulations, policies and rules, custom and usage (formal and informal) adopted by a Local Government affecting the Development of property and includes laws governing permitted uses of the property, governing density, and governing design, improvement, and construction standards and specifications. n. Local Government means any county, municipality, special district, or governmental entity of the State, county, municipality, or region established pursuant to law which exercises regulatory authority over, and grants Development Permits for land Development or which provides public Facilities. o. Lot means any Development Parcel identified in a Subdivision Plat recorded in the York County Clerk of Court s Office. p. Open Space means undisturbed and natural areas, parks, athletic fields, landfills, that have been or will be converted for open space purposes, trails, buffers, conservation easements, plazas, court yards, and hardscape pedestrian areas, areas utilized for storm water management facilities (i.e. water quality ponds), ponds/lakes etc. and others as specified in the Current Regulations. q. Parties means the Developer and City. r. Parcel means any of those tracts of Real Property that are identified in Exhibit B, as same may be specifically identified by the filing of a subdivision application. s. Phase 1 and Phase 2 means the portion of the Real Property more particularly described in the exhibits referenced therein. t. Planned Development Zoning means the Master Planned District Zoning for the Development of the Real Property which shall be based upon the Development Plan, mutually agreed upon by the Parties and duly adopted by the City in accordance with applicable law during the Inspection Period (as defined under paragraph 16(f)(v)). u. Project is the Development that will occur within and upon the Real Property. v. Property Owner means, with respect to any Development Parcel and following the acquisition thereof, the person or entity which acquired the same from the City, together with all subsidiaries thereof, and other entities which have a legal or { } 9

10 equitable interest on the date of execution hereof in any of the Real Property, and includes Sora Phelps Rock Hill, LLC s successors in interest or successors in title and/or assigns by virtue of assignment or other instrument pursuant to Paragraph 30 hereof. For clarification, the term Property Owner shall not include the City. w. Property Owners Association means the Property Owners Association that shall be established pursuant to Paragraph 14(a). x. Public Improvements refers to those amenities or improvements which are to be owned by the City and designated for public use (subject to the terms hereof) and which are more particularly described in Paragraph 17, in the Financing Agreement and in the Planned Development Zoning. y. Real Property is the real property referred to in Paragraph 7 and includes any improvements or structures customarily regarded as part of real property. z. Reserved Property refers to property to be set aside for dedication to the City for Open Space and/or Public Improvements. aa. South Carolina Code of Laws means the code of laws currently promulgated by the State of South Carolina and referred to herein by the various code sections which may be amended from time to time by the South Carolina Legislature. bb. Subdivision Plat means a recorded graphic description of property prepared and approved in compliance with the Current Regulations, as modified in this Agreement. cc. Undeveloped Lands in existence on the date of execution of this Agreement is the Real Property indicated on Exhibit A. Undeveloped Lands shall, during the Term of this Agreement, include Real Property that (i) has not received final plat approval or (ii) has received preliminary, conditional or final plat approval but consists of five (5) or more contiguous acres of Real Property, depicted as Lots or parcels thereon, and has not been sold. The term Undeveloped Lands, for clarification and avoidance of doubt, is inclusive of those portions of the Real Property which include existing buildings that are to be renovated or reused in accordance with the Development Plan. dd. Vested Units means the new single family Lots and new non-single family Dwelling Units, commercial buildings, and industrial buildings which may be approved by the City for all Undeveloped Lands. 5. Parties. Parties to this Agreement are the Developer and the City. 6. Relationship of the Parties. This Agreement creates a contractual relationship between the Parties. This Agreement is not intended to create, and does not create, the relationship of master/servant, principal/agent, independent contractor/employer, partnership, joint venture, or any other relationship where one party may be held { } 10

11 responsible for acts of the other party. Further, this Agreement is not intended to create, nor does it create, a relationship whereby the conduct of the Property Owner constitutes state action for any purposes. 7. Legal Description of the Real Property. The Real Property which is the subject of this Agreement is described as follows: a. A legal description of the Real Property is set forth in Exhibit A. b. A boundary depiction of the Real Property is set forth in Exhibit A. The Real Property consists of the real property currently bearing York County, South Carolina, tax parcel numbers and portions of , , , and The Developer may notify the City from time to time of property proposed to be added to the legal description of Real Property by the filing of a legal description of subsequently acquired properties with the Clerk of Council and the Development Services Director; provided, however, that no other property shall be added to the Agreement unless: (1) the Development Plan is duly amended; and (2) this Agreement is duly amended to add the legal description of the subsequently acquired properties to the legal description of the Real Property, pursuant to S.C. Code Section , et seq. 8. Intent of the Parties. Subject to the terms of paragraph 30, the City and the Developer agree that the burdens of this Agreement bind, and the benefits of this Agreement shall inure, to each of them and to their successors in interest and, in the case of the City, its successors in title and/or assigns. The City and the Developer are entering into this Agreement in order to secure benefits and burdens referenced in S. C. Code Sections et seq. 9. Consistency with the City s Comprehensive Plan and Land Development Regulations. This Agreement is consistent with the City s Comprehensive Plan and Current Regulations. Whenever express or implied substantive provisions of this Agreement are inconsistent with the applicable standards set forth in the Current Regulations, the standards set forth in the Current Regulations and the standards set forth in this Agreement shall, to the extent possible, be considered in pari material to give effect to both the Current Regulations and this Agreement; provided, however, that in the event of a conflict, and subject to the provisions of S.C. Code Section , the standards set forth in the Planned Development Zoning shall govern the development of the Real Property. 10. Legislative Act. Any change in the standards established by this Agreement or to Laws pertaining to the same shall require the approval of City Council, subject to compliance with applicable statutory procedures and consistent with Paragraph 11(a). This Agreement constitutes a legislative act of City Council. City Council adopted this Agreement only after following procedures required by S.C. Code Section , et { } 11

12 seq. This Agreement shall not be construed to create a debt of the City as referenced in S.C. Code Section Applicable Land Use Regulations. a. Applicable Laws and Land Development Regulations. Except as to the Planned Development Zoning, as otherwise provided by this Agreement or by S.C. Code Section , et seq., the Laws applicable to Development of the Real Property, subject to this Agreement, are those in force at the time of execution of this Agreement, being defined herein as the Current Regulations. Except as to the Planned Development Zoning, the City shall not apply subsequently adopted Laws and Land Development Regulations to the Real Property or the Project unless the City has held a public hearing and has determined: (1) the proposed, subsequent Laws or Land Development Regulations are not in conflict with the Laws or Land Development Regulations governing the Agreement and do not prevent the Development set forth in this Agreement; (2) the proposed, subsequent Laws or Land Development Regulations are essential to the public health, safety, or welfare and the proposed, subsequent Laws or Land Development Regulations expressly state that they apply to a development that is subject to a development agreement; (3) the proposed, subsequent Laws or Land Development Regulations are specifically anticipated and provided for in this Agreement; (4) the City demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of this Agreement, which changes, if not addressed by the City, would pose a serious threat to the public health, safety, or welfare; or (5) this Agreement is based on substantially and materially inaccurate information supplied by the Developer. Nothing herein shall preclude Developer from agreeing to abide by such new Laws, regulations, or ordinances subsequently passed by the City which it, in its sole discretion, deems appropriate; and in such case the Laws, regulations, or ordinances, so agreed to by Developer shall become part of the Current Regulations. b. Vested Rights. Subject to the provisions of subparagraph (a) above and Paragraph 2, all rights and prerogatives accorded the Developer by this Agreement shall constitute vested rights for the Development of the Real Property. Subparagraph 11(a) of this Agreement does not abrogate any rights either preserved by S.C. Code Section or that may have been vested pursuant to common law and otherwise in the absence of a development agreement. Notwithstanding any other terms, conditions or provisions in this Agreement stating otherwise, this Agreement is of no force and effect until such time as detailed in Paragraph 2. Therefore, Developer shall not have vested rights until such time as detailed in Paragraph 2. c. Zoning. For clarification, and avoidance of doubt, the City agrees that, during the term of this Agreement and after adopting the Planned Development Zoning, it shall not attempt to rezone the Project, and nor shall it commit or support any act which would cause a zoning overlay district to become applicable to the Project. In the event that, during the Development of the Project, Developer determines that a desired use within the Project would not be a permitted use within the Planned Development Zoning, then the City shall cooperate with Developer to rezone the affected { } 12

13 Development Parcel or Parcels to a zoning classification which would be compatible with the prospective use, provided that the prospective use is of a type which would be compatible with the Project as a whole, as determined by City in its reasonable discretion. 12. Building Codes and Laws Other Than Land Use Regulations. The Developer, notwithstanding any provision which may be construed to the contrary in this Agreement, must comply with any building, housing, electrical, mechanical, plumbing and gas codes subsequently adopted by the City or other governmental entity, as authorized by Chapter 9 of Title 6 of the South Carolina Code. This Agreement shall not be construed to supersede or contravene the requirements of any building, housing, electrical, mechanical, plumbing and gas codes subsequently adopted by the City or other governmental entity, as authorized by Chapter 9 of Title 6 of the South Carolina Code. The provisions of this Agreement are not intended, nor should they be construed in any way, to alter or amend in any way the rights, duties and privileges of the City to exercise governmental powers and pass laws not applicable to Development of the Real Property including, but not limited to, the power of eminent domain and the power to levy and collect taxes; provided, however, that Laws applicable to the Development of the Real Property shall be subject to Paragraph 11(a). 13. Local Development Permits and Other Permits Needed. The Parties anticipate that the following local Development Permits and other regulatory permits will be needed to complete the Development of the Project: Zoning permits, plat approvals (preliminary, conditional or final), road and drainage construction plan approvals, building permits, certificates of occupancy, city water and/or sewer development contracts, and utility construction and operating permits. The failure of this Agreement to address a particular permit, condition, term, or restriction does not relieve the Developer of the necessity of complying with all laws governing permit requirements, conditions, terms, or restrictions. As to any permit or other regulatory approval needed to complete the Development of the Project over which the City has jurisdiction, the City shall work with Developer in good faith to cause such permits and approvals to be issued to and obtained by Developer. 14. Vested Rights Governing the Development of the Real Property. The permitted uses, allowed density, size limitation, and building dimensional standards which pertain to the completion of the Project and Development of the Real Property shall be as set forth in the provisions of the Planned Development Zoning. The Development of the Project shall comply with the following criteria and shall also comply with the criteria of Paragraph 16 below: a. Establishment of Property Owners Association. Prior to the sale of any Parcel within the Project to an end user, or any lease of any Parcel, or part thereof, to an end user or occupant, a Master Property Owner s Association ( MPOA ) shall be established by the Developer. Membership in the MPOA will be mandatory for all Property Owners. The MPOA will be funded by dues to be established in its recorded restricted covenants. The restrictive covenants shall be prepared by Developer and subject to approval by the City. The City shall not unreasonably withhold or delay approval of such restrictive covenants. The MPOA s responsibility will be to manage the { } 13

14 affairs of the MPOA including the enforcement of recorded documents and the maintenance of common areas within the Project. There may be individual property owner associations ( POA ) established for any Parcel which will incorporate its own common areas and be managed by its POA and governed by the MPOA and POA jointly. The POA may contract with the MPOA for maintenance and/or management services. The MPOA s documents may also establish an Architectural Review Board (ARB) to review and approve all structures and any additions or improvements such as fences, landscaped areas, detention facilities, etc. This review will be for aesthetic purposes (e.g.: height, architectural detail, materials, colors) and does not replace the architectural review, building permit and zoning review and approval by the City. Further, the City will maintain the drainage systems and any other property that is properly dedicated to and accepted by the City. Should City refuse acceptance of any common areas, detention or drainage facilities, or the like, the MPOA and/or Developer shall have the obligation to maintain the same until such time as the City accepts dedication, if at all. The City shall not unreasonably deny any request by the Developer to dedicate any detention or drainage facilities to the City. Notwithstanding the foregoing, the Parties agree that the City shall be exempted from any assessments imposed by the MPOA or any other assessment imposed on the Real Property. b. Open Space Requirements. i. Establishment of Open Space. The Planned Development Zoning shall provide the areas that shall be reserved as Open Space or Public Improvements on the Project. The City agrees the provisions of this Agreement shall satisfy all current and future obligations of the Developer to the City relating to the same for monetary exactions and/or the provision or dedication of parks, parklands, community recreational facilities, Open Spaces, public amenities and recreational areas within the Project. ii. Dedication of Open Space. The Developer may elect to convey or cause to be conveyed other portions of Open Space to the City, or may convey or cause the same to be conveyed to the MPOA. The City may, in its sole discretion, accept dedication of such Open Space by requiring the Property Owner to dedicate the Open Space with a fee simple general warranty deed free and clear of all liens and encumbrances or any lesser estate City may desire including a long term ground lease. Should City refuse acceptance of such Open Space, the MPOA and/or Developer shall have the obligation to maintain the Open Space until such time as the City accepts dedication. The Property Owner and/or the MPOA may dedicate Open Space to another entity with the written consent of the City. The Developer will at all times reserve to itself, its successors and assigns, easements for access, environmental monitoring and remediation, and infrastructure purposes (e.g.: roads, walkways, paths, utility easements and rights of way) necessary or desirable for the Development. c. Plan Review and Approval. Preliminary Plans and Final Plats for each Phase of the Development shall be submitted for review and approved pursuant to Article 2 of the Rock Hill Zoning Ordinance, and shall be reviewed for conformity with the Current Regulations and Development Plan. To the extent that any York County, State of { } 14

15 South Carolina, or federal approvals are required in connection with the Development of the Project, the City agrees to assist Developer (or, with respect to any Development Parcel, the Property Owner thereof) in obtaining such approvals in an expeditious manner. Further, to the extent that a historical designation is applicable to any component of the Project, the City agrees to help facilitate any approvals, verifications, waivers, or other similar matters which may be required in connection with the Development of the Project given such historical designation. 15. Funding Sources for Infrastructure. The Developer and the City recognize that the Real Property is located in an area of the City s urban core which has a great need for economic growth, redevelopment, expansion of tax base and creation of jobs. To this end, the City agrees to work with the Developer and other applicable governmental entities to foster and encourage infrastructure and development to support these goals. The City and Developer are negotiating a Financing Agreement simultaneously with or following the execution of this Agreement that outlines the terms and conditions for the use of TIF and municipal improvement district (MID) financing for the Project to include gap financing analysis to the extent required by the City. Other funding vehicles and/or special tax districts may also be proposed for approval by the Developer either singularly, or in combination, and the City, if it approves such proposal, agrees to take the necessary action to implement such proposals in a timely manner. Likewise, the City agrees to use reasonable efforts to assist the Developer, subject to Developer s compliance with this Agreement, in obtaining other State and Federal tax incentives, including but not limited to those associated with the Textile Communities Revitalization Act and New Market Tax Credits, to the extent available in connection with the Project. However, in no event shall the City approve any of the foregoing if it reduces ad valorem real property taxes on any portion of the Real Property Funding for the Public Improvements is more particularly provided for in the Financing Agreement. 16. Project Development. a. Commencement Date. The Project will be deemed to commence Development upon the closing of Phase 1. b. Phased Development; Development of Phase 9. The Property Owner shall develop the Project in accordance with the Development Schedule attached hereto as Exhibit C. Each phase of development referenced on the Development Schedule is referred to herein as Phase. Should Property Owner desire to deviate from the Development Schedule for any Phase beside Phase 1 and Phase 2, such deviation must be approved by the City (unless such deviation is not required to be approved by City pursuant to the terms of the Planned Development Zoning), subject to the other provisions of this Agreement. Notwithstanding the foregoing, the City acknowledges that market conditions generally may require deviation from the Development Schedule and the City shall approve deviations for any Phase other than Phase 1 and Phase 2 when the deviation is related to market conditions for up to 180 days from the dates shown on the Development Schedule. Notwithstanding the foregoing or anything else contained in this Agreement, the Parties agree that tax parcel numbers , , { } 15

16 , and are the portion of the Real Property considered to be Phase 9. City and Developer agree that Developer shall have no rights to purchase or develop Phase 9 under this Agreement unless the Parties execute an amendment to this Agreement. The Parties agree that at a future date the Parties will consider the goals of this Agreement in determining the proper development of Phase 9, if at all. In addition, in the event that the Parties have not amended this Agreement to address the development of Phase 9 within 365 days of the Effective Date, the City (or any third party chosen by the City) shall have the right to move forward with development of Phase 9 in accordance with terms and conditions as determined by the City. c. Completion Date. The Developer acknowledges that by the year 2025 the Project should be substantially completed (i.e., essentially all structures erected and/or all necessary infrastructure in place to serve the intended uses). d. Earnest Money Deposit; Purchase of Development Parcels. Within five (5) days of the Effective Date, Developer shall deposit with Moffatt Title Insurance, Inc. ( Escrow Agent ), the sum of Fifty Thousand Dollars ($50,000.00) ( Earnest Money ). Time is of the essence with respect to delivery of the Earnest Money. Upon expiration of the Inspection Period, the Earnest Money shall be non-refundable to Developer except in the case of City s default or as otherwise set forth in this Agreement. The Earnest Money shall be applied to the Purchase Price at Closing on Phase 1 and Phase 2. The Developer shall have the absolute right to purchase and acquire from the City each of the Development Parcels shown upon Exhibit B subject to Developer s compliance with the terms and conditions of this Agreement. The purchase prices for each such Development Parcel are as shown upon Exhibit C but each purchase price for each Phase shall automatically be increased by the prior year s average for the Consumer Price Index for All Urban Consumers as determined by the U.S. Bureau of Labor Statistics ( CPI-U ), compounded annually, beginning on the date that is one year from the Effective Date and for each year thereafter. Developer s rights to purchase and acquire the Development Parcels are assignable subject to the restrictions as provided for elsewhere in this Agreement. e. Takedown Schedule. Subject to the other terms and provisions of this Agreement, Developer shall purchase the Development Parcels (or cause its assignees or designees to so purchase the Development Parcels) in general accordance with the Takedown Schedule attached hereto as Exhibit C. The City shall reasonably cooperate with Developer s efforts in order to comply with the Takedown Schedule; for clarification, and avoidance of doubt, Developer shall not be required to purchase any Parcel at the time otherwise required upon the Takedown Schedule if the City is not then in compliance with its obligations under this Agreement and under the Financing Agreement. Likewise, the City shall not be required to convey any of the Real Property to Developer at the time otherwise required upon the Takedown Schedule if the Developer is not then in compliance with its obligations under this Agreement and under the Financing Agreement { } 16

17 f. General Conditions Pertaining to Purchases. i. Subdivision of Development Parcels. At such time as Developer wishes to acquire and purchase (or for its assignee or designee to acquire and purchase) any Development Parcel, it shall provide City (unless such notice is waived in writing by the City) ninety (90) days prior notice thereof. Following such notice, Developer shall cause to be prepared, at its cost, a draft Subdivision Plat creating the Development Parcel, and shall submit the same to the City for its review and approval. The City shall not unreasonably withhold, condition, or delay its approval of any draft Subdivision Plat. Following the City s review and approval of the draft Subdivision Plat for a Development Parcel (or of any revision thereto by the Developer to address any comments by the City), the Developer shall cause the same to be recorded as a part of the closing on the Development Parcel and immediately in advance of the deed of conveyance from the City for the Development Parcel. ii. Conveyance of Title. At each closing on a Development Parcel, the City shall deliver a special warranty deed for the Development Parcel to the Developer (or its assignee or designee) conveying the Parcel to the grantee thereunder free and clear of all mortgages and other monetary liens (other than ad valorem taxes not yet then payable and future obligations in connection with any TIFs or MIDs) and subject only to such easements, rights-of-ways, and restrictions as do not render the title unmarketable and the Development Parcel unsuitable for its intended use under the Development Plan. In the event that there are easements, rights-of-ways, and/or restrictions that render the title unmarketable or if the Development Parcel is unsuitable for Developer s intended use under the Development Plan, City shall have no obligation to remedy any such defects. The form of deed shall be as per the form attached hereto as Exhibit E. The City shall also deliver at each closing such standard documents as are delivered by a seller of commercial real property in South Carolina, and such documents as are reasonably required by the Developer s (or its assignee s or designee s) title insurer except that no in event shall City be required to agree to indemnify Developer or any other third party. iii. Representations and Warranties of City; As Is Sale. The representations and warranties of City as set forth in this Paragraph 16(f)(iii) shall be deemed continuing in nature, as true on the date of each closing upon a Development Parcel as when made. With respect to each Development Parcel which Developer (or its assignee or designee) may acquire and purchase hereunder, City represents and warrants as follows: A. To the City s actual knowledge, there are no persons or entities which have or claim to have any interest in the Real Property adverse to the City s; { } 17

18 B. The City shall make good faith efforts to provide all of the reports, tests, inspections and assessments with respect to the environmental condition of the Real Property on or prior to the thirtieth (30 th ) day from the Effective Date; and, C. The City has not entered into any purchase contracts, lease agreements, rights of first refusal, or options to purchase the Real Property or any part thereof. DEVELOPER ACKNOWLEDGES AND AGREES THAT: (A) DEVELOPER IS EXPERIENCED IN THE ACQUISITION, OWNERSHIP AND OPERATION OF PROPERTIES SIMILAR TO THE REAL PROPERTY; (B) PRIOR TO THE CLOSING FOR ANY PORTION OF THE REAL PROPERTY, DEVELOPER WILL HAVE INSPECTED THE REAL PROPERTY TO ITS SATISFACTION AND IS QUALIFIED TO MAKE SUCH INSPECTION; (C) DEVELOPER HAS (OR DEVELOPER'S REPRESENTATIVES HAVE), OR PRIOR TO THE CLOSING DATE WILL HAVE, THOROUGHLY INSPECTED AND EXAMINED THE REAL PROPERTY TO THE EXTENT DEEMED NECESSARY BY DEVELOPER IN ORDER TO ENABLE DEVELOPER TO EVALUATE THE CONDITION OF THE REAL PROPERTY AND ALL OTHER ASPECTS OF THE REAL PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE REAL PROPERTY); (D) IN CONSUMMATING THE PURCHASE OF THE REAL PROPERTY, DEVELOPER IS NOT RELYING ON ANY REPRESENTATIONS OR STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE BY CITY OR CITY'S RELATED PARTIES, EXCEPT FOR THOSE REPRESENTATIONS OF CITY SET FORTH HEREIN AND IS RELYING SOLELY UPON DEVELOPER'S OR ITS REPRESENTATIVES' OWN INSPECTIONS OF THE REAL PROPERTY; (E) ANY CONDITION OF THE REAL PROPERTY WHICH DEVELOPER DISCOVERS OR DESIRES TO CORRECT OR IMPROVE PRIOR TO OR AFTER THE CLOSING DATE SHALL BE AT DEVELOPER S SOLE EXPENSE; AND (F) DEVELOPER EXPRESSLY WAIVES (TO THE EXTENT ALLOWED BY APPLICABLE LAW) ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW (INCLUDING, BUT NOT LIMITED TO COMMON LAW, WHETHER SOUNDING IN CONTRACT OR TORT) THAT DEVELOPER MIGHT OTHERWISE HAVE AGAINST CITY RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE REAL PROPERTY. FOR PURPOSES OF CLARIFICATION, AND AVOIDANCE OF DOUBT, DEVELOPER EXPRESSLY ACKNOWLEDGES THAT CITY HAS MADE ABSOLUTELY NO REPRESENTATION OR WARRANTY REGARDING THE COMPLIANCE OF THE REAL PROPERTY WITH, AND CITY S USE THEREOF BEING IN COMPLIANCE WITH, ANY AND ALL APPLICABLE ENVIRONMENTAL LAWS, ORDINANCES, ANDE REGULATIONS. FURTHERMORE, AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT AND THE NEGOTIATION AND AGREEMENT AS { } 18

19 TO THE PURCHASE PRICE FOR EACH PHASE, DEVELOPER HEREBY AGREES TO ACCEPT THE REAL PROPERTY ON EACH APPLICABLE CLOSING DATE IN ITS "AS-IS, WHERE IS" CONDITION, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, EXCEPT ONLY THE LIMITED TITLE WARRANTIES EXPRESSLY SET FORTH IN THE DEED AND THOSE EXPRESS REPRESENTATIONS OF CITY SET FORTH IN THIS AGREEMENT. iv. Restrictions on Use of Real Property. The Parties intend for the City to finance construction of infrastructure on the Real Property through establishment of a Municipal Improvement District, execution of a Financing Agreement and issuance of new bonds on the presently existing TIF District. In order for the Real Property to generate the required increment to provide debt service on any bond issuance, all portions of the Real Property must be subject to ad valorem real property taxes. Therefore, except for portions of the Real Property owned or to be owned by the City, the City and Developer agree that restrictive covenants shall be imposed providing that no portion of the Real Property shall be sold or leased to any person or entity if such sale or lease will result in any portion of the Real Property being exempt from or subject to reduced ad valorem real property taxes. Developer shall not sell or lease to any person or entity if such sale or lease will result in any portion of the Real Property being exempt from or subject to reduced ad valorem real property taxes. v. Due Diligence. Developer shall have an inspection period beginning on the Effective Date and continuing until 5:00 p.m. E.S.T. on the date that is two hundred forty (240) days from the Effective Date (the Inspection Period ) with which to evaluate the suitability of the Real Property and the feasibility of the Project. During the Inspection Period and continuing after the Inspection Period for so long as this Agreement is in effect, Developer shall have the right to enter upon the Real Property to perform, at its sole cost and expense, such inspections and tests (collectively, the Inspections ) as Developer deems necessary; provided, however, none of the Inspections shall include invasive testing or result in any material change (i.e., removal of trees or brush, boring of holes, etc.) to the Real Property unless Developer first obtains City s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, City acknowledges and agrees that Developer shall have the right, without further consent from City, to perform a Phase I environmental site assessment of the Real Property and a geotechnical analysis of the Real Property performed (which shall require the boring of holes); because of the Real Property s history of use, City acknowledges that, in order to satisfy itself with the suitability of the Real Property for the completion of the Project, Developer must further perform a Phase II environmental site assessment of the Real Property (to which City hereby consents), and that Developer may be required to conduct additional invasive environmental testing (which shall be subject to City s foregoing approval rights). Furthermore, during the Inspection Period, Developer shall also have the right to satisfy itself with the state of the Real Property s title. City shall have no obligation to cure any title defects other than to satisfy any monetary liens in { } 19

20 favor of the City. Prior to entering upon the Real Property to perform any Inspections, Developer shall give at least 24 hours prior notice to City by to or any other representative designated by City from time to time. City s representative or designee shall have the right to accompany Developer and its employees, agents and contractors during any Inspections. At any time prior to the expiration of the Inspection Period, Developer may, in its sole discretion and for any reason or for no reason, terminate this Agreement by written notice to City. In the event that Developer does not terminate this Agreement prior to the end of the Inspection Period, Developer shall upon satisfaction of the Pre-Conditions to Development Agreement, be unconditionally obligated to proceed to Closing and Development on Phase 1 and Phase 2 within ten days therefrom; if Developer fails to proceed to Closing and Development on Phase 1 and Phase 2 within ten days therefrom then this Agreement shall automatically terminate and be of no further force and effect. vi. Closing Costs. At closing on any portion of the Real Property, City shall pay the fees of City s attorney to include preparation of normal and customary seller documents. Developer shall pay all other closing costs, including, without limitation, documentary stamp taxes, preparation and recordation of the subdivision plat, roll-back and other deferred taxes, the costs of having title to the Real Property examined and obtaining title insurance, the costs of Developer s inspections and the fees of Developer s attorney. Ad valorem real property taxes for the year in which closing occurs, if any, shall be Developer s responsibility because the Real Property is currently not subject to real property taxes. Developer shall be solely responsible for any roll-back or other deferred taxes. 17. City s Obligation to Complete Public Improvements. The City agrees that it is essential and necessary to the completion and viability of the Project that the Development have the benefit and use of these Public Improvements. This Paragraph 17 and the Financing Agreement are intended to address the construction, completion, financing, and use of the Public Improvements. a. Necessary Infrastructure Facilities. Water, sewer and other public infrastructure improvements described on Exhibit F are a necessary and vital component of the Project and will be completed in accordance with this Agreement and as further provided in the Financing Agreement. The City intends to finance the Necessary Infrastructure Facilities subject to the restrictions and limitations provided under Paragraph 17(f) and contained in the Financing Agreement. b. Additional Infrastructure Facilities. The public infrastructure described on Exhibit G, subject to the conditions under paragraph 17(f) and 17(h) below, is contemplated as part of the Project and as further provided under the Financing Agreement. The City intends to finance the Necessary Infrastructure Facilities subject to the restrictions and limitations provided under Paragraph 17(f) and contained in the Financing Agreement { } 20

21 c. Storm Water Management. Based upon an analysis performed by Keck & Wood, Inc., it does not appear that additional storm water facilities will need to be constructed on the Real Property to serve the Project. However, the Parties acknowledge that changed circumstances (including, without limitation, a change in law) may necessitate additional storm water facilities to be constructed on the Real Property at a future date. In the event such storm water facilities become necessary, the Parties shall negotiate in good faith regarding the responsibility for installation of such facilities. In the event the Parties are unable to agree upon the responsibility and method of payment for such additional storm water management costs, either Party may terminate this Agreement upon thirty days written notice to the other Party. Upon such termination, the Parties shall have no further rights or obligations under this Agreement. d. Impact Fees. Notwithstanding any contrary provision within this Agreement, the City agrees that the impact fees payable in connection with the Development of the Project shall be payable pursuant to the impact fee payment schedule maintained by the City on the effective date such impact fees are due and payable. Furthermore, with respect to impact fees payable hereunder, the City shall allow the Developer (or, with respect to any Development Parcel, the Property Owner) to apply for reimbursement or partial reimbursement, as applicable, of such fees by the City pursuant to the City s reimbursement procedures in place at the time the fees are payable. e. Traffic Considerations. i. Planning. Long-term planning is essential to assuring safe and convenient ingress and egress for the Project. It is equally essential that this planning may be done on a regional basis. The Developer is working and will continue to work with all appropriate planning agencies. ii. Future Road Improvements. Future onsite and project access related offsite road improvements are intended as a part of completion of the Public Improvements. Certain onsite and project access related offsite public infrastructure improvements are intended to be funded, at the City s discretion, with public financing as more fully described in paragraph 15 and this paragraph. The City and Developer will work cooperatively to identify and secure funding from federal, state, and local government sources to help secure funds for the offsite road improvements required by any traffic impact analysis. iii. Mutual Cooperation. The City agrees to use reasonable efforts to obtain federal and/or state funding to supplement fees to be assessed by the City for purposes of improving existing roads and constructing new roads identified as Necessary Infrastructure Facilities or in any traffic impact analysis, to serve the Project, such as those described above. The Property Owner will cooperate with the City in this effort. f. Completion and Construction of Public Improvements; Timing. Subject to the terms of the Financing Agreement and the terms and provisions of this Agreement { } 21

22 (including those provisions addressing the required Developer Contribution), the Public Improvements are to be planned, designed, constructed, and completed per the requirements of the City and in accordance with the terms of this Agreement and the Financing Agreement. The Public Improvements described on Exhibit F shall be constructed on the entire Project. The Public Improvements described on Exhibit G are intended to be constructed in phases, with such phases designed to be complimentary to the phased completion of the Project by Developer; the timing of the completion of the Public Improvements shall be as more particularly addressed in the Financing Agreement. The City shall not be obligated to finance any phase of the Public Improvements described on Exhibit G unless and until the City is reasonably satisfied that the Development of the Project, as it has then progressed or is in progress, will generate sufficient tax increment revenue to service, in conjunction with the Developer Contribution, bond debt on the TIF bond or bonds issued in connection with that phase of the Public Improvements. Notwithstanding the foregoing, in no event shall the City be obligated to finance or construct any parking decks or parking lots if the City determines construction or financing of such is not a reasonable use of public funds. The City agrees and acknowledges that it anticipates that the tax increment generated by the first two (2) Phases of the Project plus the Developer Contribution for Phase 1 and Phase 2 shall be sufficient to service bond debt on the TIF bond or bonds which are issued to fund the cost of constructing the Public Improvements described on Exhibit F. g. Developer s Role. Due to the intended interconnectivity of the private components of the Project and the Public Improvements, the Parties intend to work collaboratively on the design and planning of the Public Improvements. h. Financing of Public Improvements. i. Developer Contribution. At the time of each purchase of a Development Parcel from the City hereunder, the Developer (or its assignee purchaser, as applicable) shall pay to the City, in addition to the purchase price for the Development Parcel, an amount calculated as follows: the amount shown as corresponding to the Development Parcel upon the Takedown Schedule attached hereto as Exhibit C. Each such contribution is referred to as a Developer Contribution, and such contributions plus any Developer Contribution Increase are, in the aggregate, collectively referred to herein as the Developer Contribution. Beginning on the date that is one year from the Effective Date and for each year thereafter (each being a Developer Contribution Increase Date ), the Developer Contribution less any portion of the contributions made as of each Developer Contribution Increase Date shall be increased by the prior year s average for the CPI-U, compounded annually, on each Developer Contribution Increase Date (collectively, the Developer Contribution Increase ). At the last purchase of a Development Parcel from the City scheduled to take place hereunder, if the Developer Contribution which would be due in connection therewith, plus all other Developer Contributions paid previously, would not equal $3,000, plus the Developer Contribution Increase, then the Developer Contribution due and payable at the time of the last scheduled purchase shall be increased so that it, plus all other Developer Contributions paid previously, shall equal $3,000, plus the Developer Contribution { } 22

23 Increase. To avoid the City issuing TIF debt or additional TIF debt, and/or to ensure that the available tax increment from the first two (2) Phases of the Project will be sufficient to service TIF debt issued for the purpose of constructing the remainder of the Public Improvements, the Developer (or its assignee purchasers) shall have the option of accelerating all or a part of the Developer Contribution so that it may be used towards the City s costs of constructing the Public Improvements associated with the first two (2) Phases of the Project. ii. Tax Increment Financing. Subject to the Financing Agreement, the City anticipates funding the cost of constructing and completing the Public Improvements (above the amount of the Developer Contribution for Phase 1 and Phase 2) by issuing one or more tax increment financing (TIF) bonds (the TIF or, if more than one, TIFs ) solely with respect to the Project; revenue from the TIFs shall be used for the purposes set forth in the Financing Agreement. The City shall not be obligated to issue a TIF bond to fund any component of the Public Improvements until the City is reasonably satisfied that the tax increment to be generated by the Project, as it has then progressed or is progressing, will be sufficient to service the City s obligations in connection with the bond (in conjunction and combination with the Developer Contribution for Phase 1 and Phase 2). The City anticipates, based solely on the information provided by the Developer, that the tax increment generated by the first two (2) Phases of the Project (once developed) shall be sufficient to service the TIF debt necessary to finance the cost of construction of the Public Improvements described on Exhibit F (after application of the Developer Contribution on Phase 1 and Phase 2). iii. Shortfall on TIF Debt. Upon the issuance of any TIF debt by the City and subject to the terms and conditions of the Financing Agreement, the Developer shall be responsible to pay and fund any shortfall in servicing the TIF debt in the event that the tax increment generated by the Project is insufficient, at any time, to service the City s debt service obligations in connection with the TIF or TIFs. The Developer s obligation to fund such shortfall may be satisfied by (a) the Developer (or each Property Owner, on a prorata basis based upon the occupable area of its Parcel or Parcels as compared to the overall occupable area of all Parcels within the Project) paying directly to the City the amount of the shortfall within sixty (60) days notice from the City of the shortfall, accompanied by reasonable evidence thereof; (b) by causing to be issued (and the City shall authorize the Developer to issue, all as more particularly provided for in the Financing Agreement) a municipal improvement district bond or bonds (a MID, or, if more than one, MIDs ) with respect to the Project; and/or (c) any other terms and conditions as provided under the Financing Agreement. Under the MID or MIDs, Parcels within the Project (that are not still owned by the City) will be subject to special tax assessments for the purpose of paying and funding any shortfall in the City servicing the TIF debt which results from the Project failing to generate the necessary tax increment. In the event that any MID is created pursuant to the Financing Agreement, each Property Owner shall, as more particularly described in the Financing Agreement, give to the City sufficient security to secure the Developer s foregoing obligation to fund any TIF shortfall including but not limited to any liens created through the MID assessment(s) { } 23

24 iv. Developer s Option to Fund Costs. The Developer, upon execution of a separate agreement authorizing such or as more particularly provided in the Financing Agreement, may directly fund and pay for all or a portion of the costs of constructing and completing the Public Improvements. i. Use and Ownership of Public Improvements. The City shall own, operate and maintain the Public Improvements in perpetuity at its sole cost and expense. The Public Improvements shall be generally available for public use and for the benefit of the Project as a whole. With respect to all parking garages which comprise a part of the Public Improvements, the City shall have the right to collect and receive all revenues in connection therewith. j. Parking. The Parties shall work in good faith to identify parking needs and requirements. The Parties, if necessary, shall negotiate in good faith the terms and conditions of any parking license agreement that the Parties mutually agree may be necessary. It is intended that any parking garages and certain other parking facilities that are financed or constructed by the City shall be accompanied by a parking license agreement between the Parties which shall include the license fees and any other costs and expenses. Control of any public parking that is constructed or financed by the City but that does not having a parking license agreement shall be governed by rules and regulations, including fees, as set forth by the City. 18. Environmental Remediation. The City is presently the owner of all of the Real Property, all of which was at one time used for or in connection with industrial or manufacturing purposes. The City has already provided a Phase I Environmental Site Assessment and various other environmental tests, reports, inspections, and assessments of the Real Property to the Developer (the Reports ). The City has negotiated and entered into a voluntary clean-up contract (the VCC ) with South Carolina Department of Health and Environmental Control ( DHEC ). The City has provided a complete and accurate copy of the VCC to the Developer. To the extent that Developer s development plans, or Developer s proposed use, for a Development Parcel would require additional remedial action to be taken in connection therewith under the terms of the VCC, Developer may elect (i) to purchase the Development Parcel and complete the additional remedial action, (ii) to remove the Development Parcel from the Takedown Schedule by notice to the City, in which event Developer shall have no obligation to purchase the Development Parcel, or (iii) to request that the City reduce the purchase price for the Development Parcel hereunder (and, in the event that the City declines to so agree to reduce the purchase price as requested within thirty (30) days from Developer s request, then Developer may then elect (i) or (ii) foregoing). In the event that the Developer elects (i) foregoing, then the City shall, to the extent that additional grant or other monies have been or are made available to it or awarded to it to fund environmental remediation costs associated with the Real Property, make such funds available to the Developer, if allowable, to fund such additional remediation costs as are to be incurred by the Developer under the VCC in connection { } 24

25 with the Development of the Development Parcel, up to the amount of the actual cost of such additional remediation. 19. Term of the Agreement; Option to Purchase Agreement. The term of this Agreement shall commence on the Effective Date and terminate five (5) years thereafter (the Termination Date), unless terminated earlier per Paragraph 2; provided, however, that the terms of this Agreement may be renewed for two (2) successive five (5) year periods by mutual agreement of the parties, pursuant to S.C. Code Sections and In the event the Parties are unable to mutually agree upon any renewal of this Agreement as provided under this Paragraph, provided this Agreement has not already terminated per Paragraph 5 and provided Developer is not in default under this Agreement, Developer shall have the right to exercise an option based on the terms and conditions provided under this Paragraph. City hereby grants to Developer, and Developer hereby accepts from City, an exclusive option to purchase (the Option ) the Real Property in accordance with the same terms and conditions as this Agreement. Developer may exercise this Option at any time on or before expiration of the date that is 60 days after the expiration of this Agreement, by giving written notice of its election (the Exercise Notice ) to exercise this Option to City. After Developer s delivery of the Exercise Notice, this Agreement shall become the Option Agreement. The Option Agreement shall become a binding agreement of purchase and sale between City and Developer, and Developer s obligation to purchase the Real Property, and City s obligation to sell the Real Property, shall be subject to all of the terms and conditions of the Option Agreement. The term of the Option Agreement shall begin on the date of the Exercise Notice and terminate on the date that is five (5) years therefrom. 20. Amending or Canceling the Agreement. Subject to the provisions of the Act and unless otherwise provided herein, this Agreement may be amended or canceled in whole or in part only by written mutual consent of the Parties or by their successors in interest. Any amendment to this Agreement shall comply with the provisions of S.C. Code Section , et seq. Any requirement of this Agreement requiring consent or approval of one of the Parties shall not require amendment of this Agreement unless the text expressly requires amendment. Wherever said consent or approval is required, the same shall not be unreasonably withheld. A major modification of this Agreement shall occur only after public notice and a public hearing by the City. 21. Modifying or Suspending the Agreement. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, the pertinent provisions of this Agreement shall be modified or suspended as may be necessary to comply with the state or federal laws or regulations. In such event, compliance with all other provisions of this Agreement shall remain unaffected and unmodified. 22. Periodic Review. The City Manager or his designee shall review the Project and this Agreement at least once every twelve (12) months, at which time the Developer shall demonstrate good-faith compliance with the terms of this Agreement { } 25

26 If, as a result of its periodic review or at any other time, the City finds and determines that the Developer (or, as to a Development Parcel then owned by any successor or assign of the Developer) committed a material breach of the terms or conditions of this Agreement, the City shall serve notice in writing upon the Developer (or, as to a Development Parcel then owned by a successor or assign of Developer, then upon such successor or assign) setting forth with reasonable particularity the nature of the breach and the evidence supporting the finding and determination, and providing the Developer (or its successor or assign, as applicable) a reasonable time in which to cure the material breach. If the Developer (or its successor or assign, as applicable) fails to cure any material breach within the time given, then the City may unilaterally terminate or modify this Agreement; provided that the City has first given the Developer (and its successor or assign, as applicable) the opportunity: (1) to rebut the City s finding and determination; or (2) to consent to amend this Agreement to meet the concerns of the City with respect to the findings and determinations. 23. Severability. Subject to the provisions of S.C. Code Section , if any word, phrase, sentence, paragraph or provision of this Agreement shall be finally adjudicated to be invalid, void, or illegal, it shall be deleted and in no way affect, impair, or invalidate any other provision hereof. 24. Merger. This Agreement, coupled with its Exhibits, which are incorporated herein by reference, shall state the final and complete expression of the Parties intentions with respect to the subject matter hereof. In return for the respective rights, benefits, and burdens undertaken by the Parties, the Developer shall be, and is hereby, relieved of obligations imposed by future land development laws, ordinances and regulations, except those which may be specifically provided for herein. The Parties hereto agree to cooperate with each other to effectuate the provisions of this Agreement and to act reasonably and expeditiously in all performances required under the Agreement. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the Parties hereby agree to cooperate in defending such action. 25. Conflicts of Law. This Agreement shall be construed and enforced in accordance with the substantive laws of the State of South Carolina, to include S.C. Code Section , without regard to principles of conflicts of laws. 26. Limitation of Remedies. The City will look solely to the Developer, its successors and permitted assigns as to any rights it may have against the Developer under this Agreement, and hereby waives any right to assert claims against limited partners, managers, affiliates, or members of the Developer, and further agrees that no limited partner, member, manager or agent of the Property Owner has or shall have any personal { } 26

27 liability under this Agreement. Likewise, Developer agrees to look solely to the City s assets as to any rights it may have against the City under this Agreement, and hereby waives any right to assert claims for personal liability against individuals acting on behalf of the City, its City Council members, agencies, boards, or commissions. 27. Recording. Within fourteen (14) days after execution of this Agreement, the Property Owner shall record the agreement with the York County Clerk of Court. The burdens of this Agreement are binding upon, and the benefits of this Agreement shall inure to, all successors in interest and permitted assigns of the Parties to this Agreement. 28. Third Parties. Notwithstanding any provision herein to the contrary, this Agreement shall not be binding and shall have no force or effect as to persons or entities not Parties or successors and assigns to this Agreement (including successors in title to all or any part of the Real Property). 29. City Approval of Agreement. The City Council has approved the Project under the process set forth in S.C. Code Section of the Act on the terms and conditions set forth in this Development Agreement. 30. Successors and Assigns. a. Binding Effect. Subject to the terms of this Paragraph 30, this Agreement shall be binding on the successors and assigns of the Developer in the ownership and/or Development of any portion of the Real Property or the Project. Upon satisfaction of the approval provisions contained under paragraph 30(b), Developer shall have the right to assigns its right to acquire any such Development Parcel from the City to any entity under substantially similar ownership or control as Developer, or to any entity in which any person which is a beneficial owner of Developer, directly, or indirectly, has a beneficial interest or controlling interest. Except as otherwise agreed by and between the City, Developer, and any such third party in writing, a purchaser, assignee, lessee or other successor in interest of any portion of the Real Property shall be solely responsible for performance of Developer s obligations hereunder as to the portion or portions of the Real Property so transferred. Assignees of Developer hereunder as to any Development Parcel shall be required to execute a written acknowledgment accepting and agreeing to the Developer s obligations in this Agreement which pertain to that portion of the Real Property to which the assignment applies, said document to be in recordable form and provided to the City at the time of the recording of any deed transferring a Development Parcel. Following delivery of such documents and except as otherwise provided in any written agreement between the City, Developer, and such assignee, Developer shall be released of any further liability or obligation with respect to said tract but only for such period after the conveyance. This paragraph shall not be construed to prevent Developer from obtaining indemnification of liability to the City from third parties. Further, so long as such consent is not required pursuant to the Financing Agreement and/or the City s bond requirements, Property Owner shall not be required to notify the City or obtain the City s { } 27

28 consent with regard to the sale of Lots in residential condominiums or Lots that have been fully developed by the Developer such that buildings on such Lots are fully constructed. Property Owner shall be released from obligations as to sale of units in residential condominiums. b. Transfer of Project. Property Owner shall be entitled to transfer or assign its right to acquire all or a portion of the Real Property to a transferee or assignee, subject to the following exceptions: i. Notice and Approval of Property Transfer. If the Developer intends to transfer or assign its right to acquire all or a portion of the Real Property to a transferee or assignee, Developer shall first be required to obtain the City s written approval, which shall not be unreasonably withheld, for such transfer or assignment. Developer shall notify the City, in writing, of Developer s request to assign its rights ( Assignment Request ). Within sixty (60) days of receipt of the Assignment Request, the City shall either approve or deny such Assignment Request in writing, and if approved, the City s approval shall include conditions on such transfer or assignment as may be reasonably required by the City. ii. Transfer of Facility and Service Obligations. If Developer transfers or assigns its right to acquire hereunder any portion of the Real Property on which the Developer is required hereunder to provide and/or construct certain Facilities or provide certain services which are distinct from those provided throughout the Project and which are site-specific to the portion of the Real Property subject to the assignment or transfer, then the Developer shall be required to obtain a written agreement from the purchaser or assignee, as the case may be, expressly assuming all such separate responsibilities and obligations with regard to the parcel conveyed and the Developer shall provide a copy of such agreement to the City. iii. Assignment of Development Rights. Any and all conveyances of any portion of the Real Property, subject to the provisions of this Agreement, respectively, to third party developers shall, by contract and covenant running with the land, assign a precise number of Vested Units, commercial square footage, and/or industrial square footage (in reduction of the minimum Vested Units, vested commercial square footage, and/or vested industrial square footage provided for herein.) iv. Mortgage Lenders. Notwithstanding anything to the contrary contained herein, the exceptions to transfer contained in this Section shall not apply: (i) to any bona fide third party mortgage lender either as the result of foreclosure of any mortgage secured by any portion of the Real Property or any other transfer in lieu of foreclosure; (ii) to any third party purchaser at such a foreclosure; or (iii) to any third party purchaser of such mortgage lender s interest subsequent to the mortgage lender s acquiring ownership of any portion of the Real Property as set forth above. Furthermore, nothing contained herein shall prevent, hinder or delay any transfer or any portion of the Real Property to any such mortgage lender or subsequent purchaser. Except as set forth { } 28

29 herein, any such mortgage lender or subsequent purchaser shall be bound by and shall receive the benefits from this Agreement as the successor in title to the Property Owner. c. Release of Developer. Subject to the terms of this Agreement, in the event of conveyance of all or a portion of the Real Property in compliance with the conditions set forth herein to a person or entity other than Developer, the Developer shall be released from any further obligations under this Agreement with respect to the Real Property so transferred, and the transferee shall be substituted as the Developer under this Agreement as to the portion of the Real Property so transferred. d. Estoppel Certificate. Upon request in writing from the Developer, any assignee of the Developer, or any owner of a Parcel within the Real Property, sent to the City sent by certified or registered mail or publicly licensed message carrier, return receipt requested, the City will provide a certificate (the Certificate ) in recordable form that, solely with regard to the portion of the Real Property described in the request, there are no violations or breaches of this Agreement, except as otherwise described in the Certificate. The City will respond to such a request within thirty (30) days of the receipt of the request, and may employ such professional consultants, municipal, county and state agencies and staff as may be necessary to assure the truth and completeness of the statements in the certificate. The Certificate issued by the City will be binding on the City in accordance with the facts and statements contained therein as of its date and may be relied upon by all persons having notice thereof. No claim or action by the City to enforce compliance with this Agreement, on account of a violation or alleged violation hereof existing as of the date of the Certificate, may be brought against the Developer, or its assignees properly holding rights hereunder, or any owner of a Development Parcel within the Real Property, alleging any violation of the terms and covenants affecting such portion of the Real Property as is the subject of the Certificate except as otherwise described in the Certificate. If the City does not respond to such request within thirty (30) days of its receipt, the portion of the Real Property described in the request will be deemed in compliance with all of the covenants and terms of this Agreement. A certificate of such conclusion may be recorded by the requesting party, including a copy of the request and the notice of receipt, and it shall be binding on the City as of its date. Such notice shall have the same effect as a Certificate issued by the City under this Section. 31. Compliance with Financing Agreement; Default under Agreement. Compliance with all provisions of the Financing Agreement is a condition precedent to succeeding to the rights and privileges afforded Developer under this Agreement. Any failure by either party hereto to observe or perform any obligation required of it under this Agreement, or under the Financing Agreement, shall constitute a Default under this Agreement. Upon the occurrence of a Default as defined herein, any aggrieved party shall notify the defaulting party that it has thirty (30) days after receipt of notice of Default within which to cure the Default to the satisfaction of the aggrieved party providing such notice. Upon { } 29

30 failure to remedy such Default, any aggrieved party shall have the right to any remedy provided in law, equity or provided elsewhere in this Agreement, including but not limited to an action for specific performance. Upon failure to remedy a Default by Developer under this Agreement, the City may, in addition to its other rights and remedies available under this Agreement, cancel all rights and privileges granted to Developer under this Agreement. 32. General Terms and Conditions. a. Agreements to Run with the Land. This Agreement shall be recorded against the Real Property as described in Exhibit A hereto and shown on Exhibit A attached hereto. The agreements contained herein shall be deemed to run with the land. The burdens of this Agreement are binding upon, and the benefits of the Agreement shall inure to, all successors in interest to the Parties to the Agreement. Notwithstanding the foregoing, Developer must obtain approval from the City to assign its rights under this Agreement as more particularly described under Paragraph 30. b. Construction of Agreement. This Agreement should be construed so as to effectuate the public purpose of settlement of disputes, while protecting the public health, safety and welfare, including but not limited to ensuring the adequacy of Facilities and compatibility between developed and Undeveloped Lands. c. Mutual Releases. At the time of, and subject to (i) the expiration of any applicable appeal period with respect to the approval of this Agreement without any appeal having been filed or (ii) the final determination of any court upholding this Agreement, whichever occurs later, and excepting the parties respective rights and obligations under this Agreement, Developer, on behalf of itself and Developer s partners, officers, directors, employees, agents, attorneys, consultants, hereby releases the City and the City s council members, officials, employees, agents, attorneys and consultants, and the City, on behalf of itself and the City s council members, officials, employees, agents, attorneys and consultants, hereby releases Developer and Developer s partners, officers, directors, employees, agents, attorneys and consultants, from and against any and all claims, demands, liabilities, costs, expenses of whatever nature, whether known or unknown, and whether liquidated or contingent, arising on or before the date of this Agreement in connection with the Real Property or the application, processing or approval of the Project; provided, however, that each party shall not be released from its continuing obligation to comply with the law, including the Current Regulations. d. State and Federal Law. The Parties agree, intend, and understand that the obligations imposed by this Agreement are only such as are consistent with state and federal law. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of the development agreement, the provisions of this Agreement shall be modified or suspended as may be necessary to comply with state or federal laws or regulations. The Parties further agree that if any provision of this Agreement is declared invalid, this Agreement shall be deemed amended to the extent { } 30

31 necessary to make it consistent with state or federal law, as the case may be, and the balance of the Agreement shall remain in full force and effect. It is the Parties intent that this Agreement comply with state and federal law, and the Parties present belief and understanding in entering into this Agreement that this Agreement so complies. e. No Waiver. Failure of a Party hereto to exercise any right hereunder shall not be deemed a waiver of any such right and shall not affect the right of such Party to exercise at some future time said right or any other right it may have hereunder. Unless this Agreement is amended by vote of the City Council taken with the same formality as the vote approving this Agreement, no officer, official or agent of the City has the power to amend, modify or alter this Agreement or waive any of its conditions as to bind the City by making any promise or representation contained herein. Any amendments are subject to Paragraph 20 herein. f. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, whether oral or written, covering the same subject matter. This Agreement may not be modified or amended except in writing mutually agreed to and accepted by both Parties to this Agreement. g. Attorney s Fees. Should any Party hereto employ an attorney for the purpose of enforcing this Agreement, or any judgment based on this Agreement, for any reason or in any legal proceeding whatsoever, including insolvency, bankruptcy, arbitration, declaratory relief or other litigation, including appeal or rehearings, the prevailing Party shall be entitled to receive from the other party thereto reimbursement for all reasonable attorneys fees and all costs and expenses. Should any judgment or final order be issued in that proceeding, said reimbursement shall be specified herein. h. Notices. All notices hereunder shall be given in writing by certified mail, postage prepaid, or by delivery through a nationally recognized overnight carrier, delivery confirmation required, at the following addresses: To the City: With copies to: David Vehaun, City Manager City of Rock Hill P.O. Box Rock Hill, SC Development Services Director of City of Rock Hill P.O. Box Rock Hill, SC Paul W. Dillingham Spencer & Spencer, PA { } 31

32 P.O. Box 790 Rock Hill, SC To the Property Owner: With copies to: Mr. Tom Fore, Manager Sora-Phelps Rock Hill, LLC MORTON & GETTYS, LLC Attn: Joshua B. Vann Fountain Park Place 331 East Main Street, Suite 300 Post Office Box 707 Rock Hill, SC i. Execution of Agreement. This Agreement may be executed in multiple parts as originals or by facsimile copies of executed originals; provided, however, if executed and evidence of execution is made by facsimile copy, then an original shall be provided to the other party within seven (7) days of receipt of said facsimile copy. j. S.C. Archives and History Grant; EPA Grant. i. City has been awarded a $20, matching grant from the South Carolina Department of Archives and History, which grant must be matched by local funds of an equal amount. The grant may be used to assess conditions and for certain other purposes in connection with the water treatment plant facility (a building intended for re-use) located on the Real Property. Developer has agreed to fund $20, in matching local funds. The City intends to select a consultant (to be mutually agreed upon by City and Developer) and to expend such matching local funds prior to execution of this Agreement. City and Developer both acknowledge that, in that the terms of the grant require the matching funds to be expended prior to September 30, 2015, City shall expend all of the matching local funds prior to such date. At such time as Developer closes upon its purchase of Phase 2 of the Project, Developer shall reimburse the City for the matching local funds expended by City in connection with the grant, up to the sum of $20, ii. The US EPA recently awarded City a grant in the amount of approximately $400, for use in environmental assessment, studies and remediation on the Real Property ( EPA Grant ). The EPA Grant requires that the City contribute $80, towards the costs of such matters in order to obtain the EPA Grant. City has { } 32

33 agreed to make all of the EPA Grant funds available to Developer for its use in its environmental assessment, study, and remediation activities on the Real Property. In consideration thereof, Developer has agreed that it shall be solely responsible for the $80, contribution required by the terms of the EPA Grant { } 33

34 IN WITNESS WHEREOF, this Agreement has been executed by the Parties on the day and year first above written. Witness: CITY OF ROCK HILL (City) By: David Vehaun, City Manager Attest:, Municipal Clerk STATE OF SOUTH CAROLINA ) COUNTY OF ) PERSONALLY appeared before me the undersigned witness who, being duly sworn, deposes and says that (s)he saw the within named City of Rock Hill, by David Vehaun, its City Manager, and, its Municipal Clerk, sign and seal the within written Development Agreement, and as the act and deed of City of Rock Hill deliver the same, and that (s)he with the other witness subscribed above witnessed the execution thereof. SWORN to before me this day of, 2015 Notary Public for South Carolina My Commission Expires: { } 34

35 IN WITNESS WHEREOF, this Agreement has been executed by the Parties on the day and year first above written. Witness: SORA-PHELPS ROCK HILL, LLC By: Tom Fore, its Manager STATE OF ) COUNTY OF ) PERSONALLY appeared before me the undersigned witness who, being duly sworn, deposes and says that (s)he saw the within named Sora-Phelps Rock Hill, LLC, by Tom Fore, its Manager, sign and seal the within written Development Agreement, and as the act and deed of Sora-Phelps Rock Hill, LLC deliver the same, and that (s)he with the other witness subscribed above witnessed the execution thereof. SWORN to before me this day of, 2015 Notary Public for My Commission Expires: { } 35

36 EXHIBITS Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Legal Description and Boundary Depiction (To Be Attached Later) Development Plan (Color) Development Schedule, Takedown Schedule and Purchase Price Schedule Development Agreement Ordinance (To Be Attached Later) Form of Deed of Conveyance Necessary Infrastructure Facilities Additional Infrastructure Facilities { } 36

37 EXHIBIT A Legal Description and Boundary Depiction (See Below and Attached) { } 37