,._. December 16, Mayor Krasnoff, Vice Mayor West and Members of the City Council

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1 DOCKET ITEM: CM - 3(A) Citesapeake City of Chesapeake 1RGIN1A ;;.:, w a.,,._. a.;.. }:,. r key i.: ; Tt: Office of the City Attorney 306 Cedar Road Chesapeake, Virginia ) Fax( 757) December 16, 2016 TO: Mayor Krasnoff, Vice Mayor West and Members of the City Council Re: RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF CHESAPEAKE, THE CHESAPEAKE ECONOMIC DEVELOPMENT AUTHORITY AND DOLLAR TREE, INC. AND ITS AFFILIATES (" DOLLAR TREE") TO FACILITATE ECONOMIC DEVELOPMENT OPPORTUNITIES IN GREENBRIER BY CONTRIBUTING TO PUBLIC IMPROVEMENTS RELATED TO THE DOLLAR TREE HEADQUARTERS EXPANSION ON VOLVO PARKWAY. The Development Agreement for the expansion of the Dollar Tree headquarters is still under negotiation. The matter will be placed on the City Council agenda for January 10, Please advise if you have any questions in this regard. Very truly yours, C"--* ( 01 Pvi\ 4 C) Jan L. Proctor City Attorney JLP: hvm The City of Chesapeake adheres to the principles of equal employment opportunity. This policy extends to all programs and services supported by the City"

2 _ CtLesapeake IRGINIA xzv,7t, $ f City of Chesapeake December 20, 2016 Office of the City Attorney 306 Cedar Road Chesapeake, Virginia ) Fax( 757) TO: Mayor Krasnoff, Vice Mayor West and Members of the City Council Re: RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF CHESAPEAKE, THE CHESAPEAKE ECONOMIC DEVELOPMENT AUTHORITY AND DOLLAR TREE, INC. AND ITS AFFILIATES DOLLAR TREE") TO FACILITATE ECONOMIC DEVELOPMENT OPPORTUNITIES IN GREENBRIER BY CONTRIBUTING TO PUBLIC IMPROVEMENTS RELATED TO THE DOLLAR TREE HEADQUARTERS EXPANSION ON VOLVO PARKWAY. Please find enclosed a resolution authorizing the City Manager to execute the Development Agreement for the Dollar Tree expansion in Greenbrier by and between the City of Chesapeake City"), the Chesapeake Economic Development Authority (" EDA") and Dollar Tree, Inc. and its affiliates (" Dollar Tree"). The Development Agreement is presented as a draft, with authorization given to the City Attorney to approve minor changes, corrections and additions. For the most part, the Development Agreement follows the term sheet submitted by Dollar Tree in July of One key difference is that the EDA will compensate Dollar Tree for its share of the land on which the parking garage is constructed. This change did not increase overall City or EDA contributions to the development. Dollar Tree intends to expand its headquarters on Volvo Parkway, including the construction of a new twelve- story office tower and a public-private parking garage. In addition, mixed use retail, office and residential development is anticipated in the near future in accord with the Dollar Tree Planned Unit Development ( PUD). Dollar Tree is expected to invest approximately $ 110, 000,000 in real property and personal property improvements. This development will result in the creation of an additional 600 jobs in Chesapeake, as well as significant tax revenues. Thus, the Development Agreement will serve a legitimate and important public purpose of increasing economic development opportunities, creating employment and fostering prosperity in the City of Chesapeake. The Development Agreement assigns three primary obligations of the City and the EDA: 1) The EDA will purchase up to 1, 000 public parking spaces in the parking garage and up to two-thirds of the land beneath the parking garage. The City of Chesapeake adheres to the principles of equal employment opportunity. This policy extends to all programs and services supported by the City"

3 The purchase price is two-thirds of the costs or $ 16 Million, whichever is less. If the costs exceed $ 16 Million, the number of spaces conveyed to the EDA will be reduced based on a Dilution Calculation. The EDA will fund the cost of the franchise utility conduit ducts, at an amount not to exceed $ 1 Million, provided that all franchise utilities and public facilities are permitted to use the conduit ducts. The parking garage will be completed prior to the issuance of a final certificate of occupancy for more than 75% of the square footage of the office tower. Construction of the office tower is to commence within 12 months of obtaining all required permits. The parking garage will be operated and maintained by Dollar Tree, which shall receive a management fee of 5% of the costs of operation and maintenance. The EDA will contribute to the cost of operating, maintaining and repairing the parking garage, including a capital reserve fee in the amount of$ 100 per year per parking space. The parking garage will be owned by the EDA and Dollar Tree, or its successors in interest, as a condominium. The EDA shall own approximately two-thirds of the land and parking garage and Dollar Tree shall own the remainder. The EDA will reserve 250 spaces for use by Dollar Tree employees and guests during the weekdays. All other EDA spaces will be open for use by Dollar Tree, but not reserved, and may be counted toward parking requirements for other Dollar Tree facilities, provided that a parking plan is submitted to and approved by the Department of Development and Permits. 2) The City will contribute to Phase 1 On-Site and Off-Site public improvements. The Phase 1 On- Site Improvements include interior roads, public utilities, curb & guttering and upgraded street lighting (see Exhibit B, page 1, to the Development Agreement). The improvements will be constructed by Dollar Tree and conveyed to the City incrementally as portions are completed and approved by the City. The City will contribute to the cost of the Phase I On- Site Improvements in an amount not to exceed $ 7,200,000.00, which includes a$ 650, 000 2

4 access grant from the Virginia Department of Transportation and the City' s match of$ 150, 000. The amount the City contributes to the Phase 1 On- Site Improvements will be reduced by the amount the EDA contributes to the franchise utility conduit ducts. The City' s contribution for Phase 1 On- Site Improvements will be contingent on the development of 25,000 gross square feet of floor area available for lease or sale for retail and/ or restaurant use. The Phase 1 Off-Site Improvements will consist of traffic improvements to Volvo Parkway, Crossways Boulevard, and Executive Boulevard, including signalization( see Exhibit B, page 2, to the Development Agreement). The City will contribute to the cost of the Phase 1 in an amount not to exceed $ 3, 130, Off-Site Improvements The City' s contribution to Phase 1 Off-Site Improvements will be paid incrementally as the improvements are completed and approved by the City. 3) The City will contribute to the Future Phase Improvements. The City will contribute to the cost of the Future Off-Site Improvements in an amount not to exceed $ 5, 500, The Future Off-Site Improvements include traffic improvements to Executive Boulevard, Volvo Parkway and Eden Way( see Exhibit C to Development Agreement). No private funds are anticipated for Future Off-Site Improvements. The parties will prioritize projects in the event the City' s contribution is not sufficient to complete all of the proposed public improvements. Future On- Site Improvements have not been determined at this time. The City agrees to negotiate with Dollar Tree in good faith once the scope of necessary public improvements have been identified. 3

5 The Development Agreement has been reviewed by the Departments of Economic Development and Development and Permits. The EDA considered and approved a similar version of the Development Agreement on December 15, Please advise if you have any questions in this regard. truly yo W;ti oc k c Jan L. Proctor City Attorney JLP: hvm Enclosure cc: James E. Baker, City Manager 4

6 RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF CHESAPEAKE, THE CHESAPEAKE ECONOMIC DEVELOPMENT AUTHORITY AND DOLLAR TREE, INC. AND ITS AFFILIATES (" DOLLAR TREE") TO FACILITATE ECONOMIC DEVELOPMENT OPPORTUNITIES IN GREENBRIER BY CONTRIBUTING TO PUBLIC IMPROVEMENTS RELATED TO THE DOLLAR TREE HEADQUARTERS EXPANSION ON VOLVO PARKWAY. WHEREAS, the City of Chesapeake (" City) has designated economic development as a priority in order to create employment opportunities, increase tax revenues and promote the public health, safety and welfare; and WHEREAS, the City created the Economic Development Authority of the City of Chesapeake (" EDA"), a political subdivision, to advance economic growth and prosperity in Chesapeake; and WHEREAS, the EDA is empowered to purchase, improve and maintain one or more facilities to further its purpose of increasing trade and commerce in the Chesapeake; and WHEREAS, Dollar Tree, Inc. and its affiliates (" Dollar Tree") propose to invest approximately$ 110, 000, to expand its existing headquarters facilities on Volvo Parkway Development"), including the design and construction of a parking garage for shared private and public use (" Parking Garage"); and WHEREAS, pursuant to the attached draft Development Agreement by and among the City, the EDA and Dollar Tree, the EDA will purchase up to 1, 000 public parking spaces in the Parking Garage, including an approximate two-thirds interest in the land on which the parking facility is constructed, for a sum not to exceed $ 16, 000,000.00; and WHEREAS, pursuant to said draft Development Agreement, the EDA will contribute City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia ) Fax:( 757) up to $ 1, 000, toward the franchise utility conduit ducts serving the development; and

7 WHEREAS, the City Council finds that the EDA' s contribution to the franchise utility conduit ducts and acquisition, operation and maintenance of a portion of the Parking Garage, will promote the public health, safety and welfare and will facilitate economic growth by providing adequate public parking and other facilities in supporting new office, institutional and retail development in Chesapeake; and WHEREAS, Dollar Tree will also construct on- site and off-site public utilities and public transportation improvements, including appurtenances thereto, to be conveyed to the City upon payment of up to $ 10, 830, for Phase I improvements, which includes an 800, state transportation access grant and local match, and up to $ 5, 500, for future phase off-site improvements; and WHEREAS, the City Council finds that the City' s contribution to public improvements serving the Development and the Greenbrier area as a whole will promote the public health, safety and welfare and foster economic growth and prosperity in the City. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Chesapeake, Virginia approves the attached Development Agreement providing for the purchase of a portion of the Parking Garage by the EDA and making contributions to the franchise utility conduit ducts to serve the Dollar Tree Development and the Greenbrier area as a whole. BE IT FURTHER RESOLVED that the City Manager and City Attorney are authorized to execute the Development Agreement in substantially the same form as the attached draft, with such minor changes, additions and corrections as may be approved by the City Attorney, and further to execute any other instruments necessary to fulfill the terms of the Development Agreement. City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia ) Fax:( 757)

8 ADOPTED by the Council of the City of Chesapeake, Virginia on this 20th day of December, APPROVED: Mayor ATTEST: Clerk of the Council City Attorney' s Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia ) Fax:( 757)

9 DEVELOPMENT AGREEMENT of THIS DEVELOPMENT AGREEMENT (this " Agreement") is made as of the 2016, by and among the CITY OF CHESAPEAKE, VIRGINIA, a political subdivision of the Commonwealth of Virginia ( the " City"), CHESAPEAKE ECONOMIC DEVELOPMENT AUTHORITY ( the " EDA"), DOLLAR TREE, INC., a Virginia corporation ( the " Developer"), DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation (" Landowner 1"), and DOLLAR TREE PROPERTIES, INC, a Virginia day corporation (" Landowner 2") ( Landowner 1 and Landowner 2 are collectively referred to herein as the" Landowners"). RECITALS WHEREAS, by ordinance adopted in 2004, the Chesapeake City Council created a tax increment financing district ( the " TIF District") in the Greenbrier Area Commercial District in order to permit the City to enter into development project commitments to be secured by tax increment revenues derived from the TIF District( the " TIF District Funds"); and WHEREAS, the Developer has proposed the development of a mixed-use project which may include commercial uses such as office, retail, hotel and residential uses ( the " Project") upon approximately acres of land owned by the Developer through the Landowners, Developer' s wholly owned subsidiaries, which property currently consists of three ( 3) separate parcels as shown on the drawing attached hereto as Exhibit A( the " Property"); and WHEREAS, the City has agreed to use TIF District Funds to pay for all or a portion of certain public improvements associated with the Project; and WHEREAS, the EDA and the City have agreed that there will be a contribution from the City and/ or EDA with respect to the following improvements ( i) the construction of a new structured public and private parking garage on the Property, to include public parking, and ( ii) the construction of on- site and off-site public roads and other public improvements, as more particularly described herein; and 1

10 WHEREAS, the City' s contribution for public streets is made to enhance public safety and to improve vehicular and pedestrian access in and around the Greenbrier TIF area; and WHEREAS, the EDA' s contribution to the new structured parking garage will be made to provide free public parking within the Greenbrier TIF; and WHEREAS, Developer is cooperating with the City' s Director of Public Works who is applying for sole source treatment in compliance with the City' s and the Commonwealth of Virginia' s ( the " Commonwealth") procurement laws; and WHEREAS, prior to its execution of this Agreement, the City and EDA have determined that the Developer is the only practical source available for the construction of the Phase I Infrastructure, with the exception of any improvements funded in whole or in part with the Virginia Economic Development Access Program Grant, and the Parking Garage ( as defined herein) for the following reasons: ( i) Developer currently has business operations on the Property; ( ii) the Developer owns all of the property on or contiguous to where the construction is to take place; ( iii) it is far more efficient and cost-effective to have the same entity managing construction of all the improvements associated with the Project; ( iv) the Developer is qualified and experienced to responsibly complete the Project; and ( iv) the Developer is in a unique position to accomplish the foregoing tasks to lead to the successful completion of the Project; and WHEREAS, Developer has agreed to include a member of the City staff during Developer' s review of construction bids for Off-Site Improvements ( as defined herein) and the Future Phase Off-Site Improvements (as defined herein); and WHEREAS, an application to re- zone the Property to the PUD classification was approved by City Council on September 17, 2013, as amended ( the " PUD Approval"); and WHEREAS, this Agreement sets forth the commitments of the City, the EDA, the Landowners, and the Developer with respect to development of the Project and the commitment of public funds; and 2

11 WHEREAS, neither the City nor the EDA shall be responsible for the obligations of the other under this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and undertakings of the parties, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Developer, the Landowners, the EDA and the City agree as follows: ARTICLE I DESCRIPTION OF PROJECT 1. The Project. The development of the Project will be completed in at least two ( 2) phases, as follows: a. Phase I. The improvements associated with the initial phase of the Project ( the Phase I Improvements") will consist of the following: i. Office Tower. Developer will construct, own and operate a new office tower approximately 12 stories in height on the Property ( the " Office Tower"); ii. Parking Garage. Developer will construct an approximate seven ( 7) level, six (6) story, 1, 500 space parking garage on the property, the ownership of which is set forth in Article II below( the " Parking Garage"); iii. Pedestrian Bridge. Developer may construct an elevated and enclosed pedestrian bridge connecting the Office Tower and the Parking Garage the " Pedestrian Bridge"), which would be owned and operated by the Developer; and iv. Phase I Infrastructure. With cost contribution from the City, Developer will construct and convey to the City certain on- site and off-site traffic improvements to serve the Property and the surrounding commercial corridor ( the " Phase I Infrastructure"); which Phase I Infrastructure is described on the attached Exhibit B, and shall include the on-site and offsite improvements as described below in Articles II, III, and IV. The agreements and obligations of Developer as set forth in this Agreement, in addition to Developer' s contributions since the PUD Approval, shall 3

12 constitute all of Developer' s contribution toward the Phase I Infrastructure required by the PUD Approval. Notwithstanding, Phase I Infrastructure is subject to the requirements of the City Code and the Public Facilities Manual. b. Future Phases. The improvements associated with future phases of the Project, would include at least the following (the " Future Phase Improvements"): i. Future Phase Off-Site Improvements. The City agrees to pursue approval of funding for off-site road and other improvements identified in the 2013 Traffic Study submitted as part of the PUD Approval, necessitated by increasing traffic demands in the immediate vicinity of the Project described on Exhibit C ( the " Future Phase Off-Site Improvements"). The exact timing of the Future Phase Off-Site Improvements cannot be fully ascertained but will be determined by warrants included in a further traffic impact analysis ( the " TIA") prepared by Developer' s traffic engineering consultant and approved by the Director of Development and Permits or designee. The City and Developer shall mutually agree on the timing of the further study and the timing of the construction of the Future Phase Improvements. The Future Phase Off-Site Improvements shall be constructed to City standards at right-of-way widths depicted in the 2013 Dollar Tree PUD Development Criteria ( as amended the " 2013 Development Criteria"). All such improvements shall be public. The City agrees to pay a total amount not to exceed $ 5, 500,000 toward the Future Phase Off-Site Improvements contained in Exhibit C, in increments as such improvements are made and conveyed to the City. In the event the cost of the Future Phase Off-Site Improvements is less than $ 5, 500, 000, no additional City payment shall be required. In the event it is determined, at the time such Future Phase Off-Site Improvements are to be commenced, that the cost of Future Phase Off-Site Improvements will exceed $ 5, 500,000, the City and Developer shall prioritize the Future Phase Off-Site Improvements based on their proximity to the Project and those that best serve the needs of the Project that can be made within the 4

13 5, 500, 000 limit. The agreements and obligations of Developer as set forth in this Agreement, in addition to Developer' s contributions since the PUD Approval, shall constitute all of Developer' s contribution toward the Future Phase Off-Site Improvements required by the PUD Approval. Developer shall not be responsible for participating financially in the Future Phase Off-Site Improvements, and the City' s obligation to pay for Future Phase Off-Site Improvements shall in no event exceed the amount of $5, 500, 000, and the City shall not be required to make improvements beyond those prioritized improvements whose cost is at or under 5, 500,000. In the event any off-site rights-of- way, easements, or temporary easements are required for any of the Future Phase Off-Site Improvements, the City and the Developer will cooperate in securing such rights-of-way, easements, or temporary easements. However in no event shall the City be obligated to use its power of eminent domain to secure such rights- of-way, easements, or temporary easements. ii. Future Phase On- Site Improvements. The exact nature and location of necessary on- site public improvements associated with Future Phases of the Project ( the " Future Phase On- Site Improvements") cannot be fully ascertained at this time. However, the parties will negotiate in good faith regarding future City contributions associated with Future Phase On- Site Improvements in conjunction with additional private development on the Property by the Developer to enhance further economic development opportunities associated with the Project. Absent a negotiated agreement, the City is not obligated to contribute toward Future Phase On- Site Improvements beyond those set out herein. ARTICLE II PARKING GARAGE 1. Design of Parking Garage. Developer shall be responsible for designing the Parking Garage ( the " Parking Garage Design"), and for submitting site and building plans associated with 5

14 the Parking Garage Design to the City in conjunction with the submission of the site plan for the Office Tower. The Parking Garage Design shall comply with the 2013 Development Criteria, and shall accommodate wrap around commercial development on at least two sides of the Parking Garage. 2. Employment of Consultants/ Professionals. Developer shall be responsible for the engagement of any necessary consultants or professionals for the Parking Garage Design. All such consultants or professionals shall be duly licensed in their field. The general contractor engaged for the construction of the Parking Garage shall be a Class A contractor licensed by the Commonwealth of Virginia. 3. Developer Financing. Prior to commencement of construction of the Parking Garage, Developer shall arrange for any necessary financing commitments sufficient to cover the costs that Developer will incur in constructing the Parking Garage. 4. Permits and Approvals for Parking Garage Construction. Developer shall be responsible for obtaining all permits and approvals necessary for the construction of the Parking Garage, including but not limited to building permits, subdivision plat approval, and site plan approval the " Parking Garage Approvals"). 5. Construction of Parking Garage. Developer shall substantially complete ( as reasonably determined by the City Director of Development & Permits) construction of the Parking Garage prior to the issuance of a final certificate of occupancy for more than seventy-five percent ( 75%) of the square footage of the Office Tower. The foregoing shall not prevent Developer from receiving a temporary certificate of occupancy for the remaining twenty-five percent (25%) of the square footage of the Office Tower provided Developer is ( as reasonably determined by the City Director of Development & Permits) making good faith progress towards substantial completion of the Parking Garage. 6. Conveyance and Ownership of the Parking Garage. a. Condominium. Upon completion of the Parking Garage, the Parking Garage together with the land underlying the footprint of the Parking Garage will be divided into two ( 2) separate condominium units pursuant to condominium documents ( the " Condominium Documents") prepared by Developer pursuant to the Virginia Condominium Act ( the " Condominium Act") ( Virginia Code et seq.) and approved by the EDA. Developer reserves the right to transfer 6

15 its interest in its condo unit to a Single Purpose Entity (" SPE") of which Developer is a majority owner. The Condominium Documents shall provide for Developer' s right to assign, encumber or convey Developer' s rights and obligations in the Developer Condominium Unit in connection with any financing, future refinancing, or future sale or transfer of the Property or portions thereof by Developer. One unit, consisting of One Thousand ( 1, 000) parking spaces and a proportional share of the land underlying the footprint of the Parking Garage ( subject to the Dilution Calculation as defined below), will be owned by the EDA ( the " EDA Condominium Unit") and will provide free parking for the public and to support adjacent future development. The other unit, consisting of approximately five-hundred ( 500) parking spaces and a proportional share of the land underlying the footprint of the Parking Garage, will be owned and exclusively used by the Developer ( the " Developer Condominium Unit"). Twohundred fifty ( 250) parking spaces in the EDA Condominium Unit will be reserved for the use of Developer' s employees and guests from 7: 00am to 5: 30pm, Monday through Friday (" Business Hours"), without charge to Developer ( the " Reserved Spaces"). The Reserved Spaces shall be designated on the Parking Garage Design, and will be available to the general public after Business Hours Monday through Friday and on weekends. The remaining 750 parking spaces will be available free of charge to the general public, including Developer' s guests and employees, at all times ( but will not be reserved for any users). All public parking spaces in the Parking Garage shall be counted toward the parking requirements under the City Zoning Ordinance for the other uses associated with the Project on an approved shared parking allocation basis, as required by the PUD Approval. All private spaces in the Parking Garage will count toward Developer' s parking requirements for its uses on the Property, including the Office Tower. The 250 shared spaces shall apply to the parking requirements of both the Developer' s office uses and other uses associated with the Project on an approved shared parking allocation basis, as required by the PUD Approval. 7

16 b. EDA Contribution/ Conveyance. Within thirty ( 30) days after the issuance of a final certificate of occupancy for the Parking Garage, the Developer and applicable Landowners will convey the EDA Condominium Unit to the EDA ( the " Parking Garage Unit Conveyance") free and clear of all liens. Simultaneously with the Parking Garage Unit Conveyance, the EDA shall pay to Developer ( or to the Landowners as directed by Developer and the Landowners with regard to the portion for the following defined Land Cost), the EDA' s proportionate two- thirds 2/ 3) share of the Landowners original cost of the land on which the Parking Garage is located ( the " Land Cost"), and to Developer, an amount equal to twothirds ( 2/ 3) of the cost of the construction of the Parking Garage, which will include a five percent ( 5%) construction management fee charged by Developer or third party construction manager( s), up to a maximum sum of Sixteen Million Dollars ($ 16, 000,000.00) ( the " Parking Garage Purchase Price"). If two-thirds 2/ 3) of the Land Cost and the cost of construction of the Parking Garage would otherwise exceed the Parking Garage Purchase Price, the number of EDA owned spaces shall be reduced from one- thousand ( 1, 000) spaces, and the EDA' s percentage of ownership in the Parking Garage will be adjusted downwards from two- thirds ( 2/ 3) on a pro rata basis so that its cost is equal to Sixteen Million Dollars ($ 16, 000,000.00) based on the following dilution calculation ( the Dilution Calculation"): the sum of the EDA' s percentage of ownership based on the final cost of the Parking Garage ($ 16,000,000 divided by the total cost of construction of the Parking Garage) multiplied by City Review Related to the Parking Garage. The City shall exercise its routine regulatory site plan review and building plan review of the Parking Garage Design, together with any review expressly required by the PUD Approval. The City shall have the right to review the costs incurred for the construction of the Parking Garage and to make inquiries and comments relating thereto. The City acknowledges that certain materials, including but not limited to concrete and steel, will be subject to the then prevailing rates or costs, and that Developer has selected Clancy Theys as the general contractor for the Parking Garage ( in addition to being Developer' s general contractor for other portions of the Project) on an AIA A103 Cost of the Work plus three percent ( 3%) contractor' s fee basis. The City agrees to expedite the regulatory review of plans 8

17 associated with the Parking Garage Approvals, to the extent possible under the laws and regulations of the Commonwealth and the City. 8. Operation, Management and Maintenance of Parking Garage. The Developer shall be responsible for operation and maintenance of the Parking Garage, for which Developer shall be paid an annual maintenance fee of 5% of the cost of operation and maintenance of the Parking Garage ( the " Management Fee"), which shall be included as part of the overall operation and maintenance cost. The costs of operating and maintaining the Parking Garage, including but not limited to necessary repairs and replacements and the cost of commercially reasonable property insurance and general liability insurance as will be further addressed in the Condominium Documents will be shared by the EDA and the Developer on a pro rata basis, based upon the respective percentages of parking spaces in the Parking Garage owned by each and shall be paid by EDA to Developer within thirty ( 30) days of invoicing by Developer on a monthly basis, or such other frequency as hereafter agreed upon by EDA and Developer. 9. Capital Reserve Fund. In addition to annual Operation, Management and Maintenance Fees, the parties acknowledge the necessity of creating and funding a Capital Reserve Fund CRF) for anticipated and unanticipated capital improvements over the life of the Parking Garage, and shall be $ annually per parking space, with mutually agreed commercially reasonable adjustments over time. The cost of the CRF shall be borne by each condo unit owner annually based on each unit owner's proportional share of ownership of the Parking Garage. This cost shall be paid by Developer and the EDA on a monthly basis or such other frequency as hereafter agreed upon by EDA and the Developer. 10. Reservation( s) for Pedestrian Bridge. In conjunction with the construction of the Parking Garage, Developer may design and construct at its sole cost and expense the Pedestrian Bridge, which may provide an elevated, enclosed, and secure pedestrian walkway connecting the Developer Condominium Unit in the Parking Garage to the Office Tower. The Pedestrian Bridge if constructed would be owned and operated by Developer, and any operation and maintenance costs associated with the Pedestrian Bridge will be the sole responsibility of the Developer. Easements associated with the construction, maintenance, and use of the Pedestrian Bridge will be reserved by the Developer from any conveyance of land or improvements by the Developer to the City or EDA as set forth in this Agreement. Party wall easements and 9

18 necessary development rights to wrap the exterior of the Parking Garage with commercial and/ or other uses will be reserved by the Developer. ARTICLE III TEMPORARY PARKING AREAS & OFFICE TOWER 1. Temporary Parking Area. Prior to commencement of construction of the Office Tower and/ or Parking Garage, Developer shall designate areas for temporary parking ( the " Temporary Parking Areas") to serve the existing improvements located on the Property. In connection therewith, the Developer shall submit an erosion and sediment control plan to the City for review and approval prior to commencing its construction of any or all of the Temporary Parking Area improvements. The City agrees to expedite review of the erosion and sediment control plans, to the extent possible under the laws and regulations of the Commonwealth and the City. 2. Design/ Approval of Office Tower. The Developer shall have the sole responsibility for designing and obtaining approvals for the Office Tower. The City agrees to expedite its regulatory review of any plans associated with the construction of the Office Tower, to the extent possible under the laws and regulations of the Commonwealth and the City. 3. Construction of Office Tower. The Developer agrees to commence construction of the Office Tower within twelve ( 12) months of receipt of all required permits for the Office Tower and thereafter to diligently pursue construction of the Office Tower from commencement through completion. ARTICLE IV PHASE I INFRASTRUCTURE 1. Phase I On- Site Improvements. The Developer will locate, design, construct, and convey or cause to be conveyed to the City interior roads described on the attached Exhibit B ( the " On- Site Improvements"). The On- Site Improvements may be modified based upon further planning and engineering of the project location and/ or scope, but the City' s financial cost contribution obligation shall be applied only to public improvements, and shall not exceed the amounts set forth below. The On- Site Improvements will include public roads constructed to City standards, together with below-grade public utilities to serve various components of the Project in addition to those improvements shown on Exhibit B- 1. As a part of the On-Site Improvements, the EDA will cost participate with the Developer to construct a conduit duct system, as identified and 10

19 located on Exhibit B- 1, to facilitate the integration of franchise utilities ( the " Franchise Utility Construction"), for which Developer will grant certain easements approved by the City ( which approval will not be unreasonably withheld) establishing prior rights, without cost, to such franchise utility easements to applicable public franchise utility service providers. Developer will not deny access to the conduit ducts to any franchise utility or public agency. The EDA shall have the responsibility for contributing to the Franchise Utility Construction up to a maximum sum of One Million and No/ 100 Dollars ($ 1, 000, ) ( the " City Franchise Cap") for the conduit ducts, which cost shall be deducted from the City Phase I On- Site Contribution ( as defined in Article IV Section 5, below) and shall be paid at the time that the franchise utility conduit duct serving the Parking Garage and other public aspects of the Project has been fully installed and is acceptable for use by the franchise utilities ( the " Franchise Utility Payment"), and the Developer shall be responsible for any portion of the cost of the Franchise Utility Construction above the City Franchise Cap. Developer will locate all private utilities (other than the Franchise Utility Construction) outside of public rights-of- way, with the exception of necessary public street crossings, and with the exception of specific reservations or easements approved by the City at the request of Developer ( which approval shall not be unreasonably withheld). Subject to the PUD Approval, Developer reserves the right to place ornamental lighting at locations approved by the City, including locations within the public rights-of-way, which approval shall not be unreasonably withheld. Private improvements, excluding public and franchise utility improvements, installed by the Developer within public rights- of-way shall be maintained by the Developer. The rights of way conveyed to the City should include the travel lanes in widths approved by the City Director of Development & Permits, curb and guttering, and upgraded street lighting as used by Dollar Tree throughout its development. The Developer reserves the right to construct on the Property at its expense certain private internal roads for its exclusive use. So long as all applicable City codes and regulations are met, the City agrees to grant all permits necessary to allow the construction and connection of any such private internal roads to the public streets. The amount and timing of the public contribution toward the On- Site Improvements is set forth in Paragraph 5, below. The City agrees to expedite review and issuance, to the extent possible under the laws and regulations of the Commonwealth and the City, of all necessary approvals and permits associated with the construction of the On- Site Improvements. The City' s review of the On- Site Improvements is limited to the routine 11

20 regulatory City site plan approval process, together with any review expressly required by the PUD Approval. 2. Phase I Off-Site Improvements. Developer will design, construct ( subject to plans approved by the City) and convey to the City the off-site traffic improvements described on the attached Exhibit B ( the " Off-Site Improvements"). The City will provide Developer with any right-of way permits ( subject to compliance with Chapter 66 of the City Code) necessary for the construction of the Off-Site Improvements. In the event any construction easements or rights- ofentry are needed from adjacent property owners, Developer and the City shall cooperate to secure such rights from such adjacent owners (however, in no event shall the City be obligated to use its power of eminent domain for such purposes). Developer may reserve the right to install lighting, signage and underground private utilities within portions of Developer's property. The Off-Site Improvements shall be subject to the City' s regulatory approval process when required, together with any review expressly required by the PUD Approval, and shall be constructed in accordance with such City approved plans. The amount and timing of the public contribution toward the Off-Site Improvements is set forth in Paragraph 5, below. The extent of Developer' s conveyance to the City for right-of-way purposes along the northern side of Volvo Parkway for the Off-site Improvements will not exceed a conveyance of fifteen foot ( 15') for right-of-way expansion of which Developer shall be entitled to grant easements for utilities ( for Dominion Virginia Power and Verizon ( establishing prior rights) prior to conveyance of the right-of-way to the City, within the northern ten feet ( 10') of said right-of-way, in addition Developer will convey a five foot ( 5') underground utility easement contiguous to the right-of-way conveyance as shown on the attached Exhibit D, which the City acknowledges will satisfy Developer' s obligation( s) with regard to the Right of Way for Volvo Parkway Expansion as contained in the 2013 PUD Approval. Developer shall prepare an itemized estimate of the costs and expenses for the construction of the Off-Site Improvements ( the " Off-Site Improvements Budget"). The Off- Site Improvements Budget shall be provided to the City prior to the commencement of construction of the Off-Site Improvements, and the City shall have approval rights over those portions of the Off-Site Improvements Budget related to public improvements that will be funded by the City' s cost contribution, which approval shall not be unreasonably withheld, delayed or conditioned. Construction of the Phase I On- Site Improvements and the Phase I Off- Site Improvements can extend beyond the opening of the Office Tower, which extension shall 12

21 not impact the City' s contribution toward such improvements. However, all On- Site Improvements and Off-Site Improvements shall comply with all applicable City requirements. 3. Engagement of Consultants/ Professionals. Developer shall be responsible for the engagement of any necessary consultants or professionals related to the design and construction of the Phase I Infrastructure. All such consultants or professionals shall be duly licensed in their field. Any contractor(s) engaged for the construction of the Phase I Infrastructure shall be Class A contractors licensed by the Commonwealth of Virginia. 4. Developer Financing. Prior to commencement of construction of the Phase I Infrastructure, Developer shall arrange for any necessary financing commitments sufficient to cover the costs that Developer will incur in constructing the Phase I Infrastructure. 5. City Phase I Contribution. The City will reimburse the Developer for the costs associated with the design and construction of the Phase I Infrastructure Improvements, which will include the original cost the Developer paid for the land and a five percent ( 5%) construction management fee charged by Developer or third party construction managers, for a combined amount not to exceed the total amount of$ 10, 830,000.00, which includes: ( i) Three Million Six Hundred Thirty Thousand Dollars ($ 3, 630,000.00) for the Off-Site Improvements ( the " City Phase I Off-Site Contribution"), which will be paid by the City to the Developer incrementally upon incremental completion of construction of the Off-Site Improvements and incremental approval and acceptance of the Off-Site Improvements by the City within the City' s highway system simultaneously with the conveyance of the respective portion of the Off-Site Improvements free and clear of all liens and encumbrances from Developer ( and applicable Landowners) to the City, and (ii) Seven Million Two Hundred Thousand Dollars ($7,200,000.00) the " City Phase I On- Site Contribution"), of which a Eight Hundred Thousand Dollar 800, ) portion will be funded by a combined grant from the Commonwealth of Virginia and City of Chesapeake via an Economic Development Access Program, subject to award and receipt of the applicable portion of the grant from the Commonwealth of Virginia, administered by the Virginia Department of Transportation (VDOT), for the On- Site Improvements. The City Phase I On- Site Contribution will be paid incrementally by the City to the Developer upon incremental completion and incremental approval and acceptance by the City of such improvements within the City' s highway system ( simultaneously with the conveyance of the respective portion of the On-Site Improvements free and clear of all liens and encumbrances 13

22 from Developer and applicable Landowners to the City) and the completion of the development of buildings on one and one- half( 1 1/ 2) blocks located within the " Initial Development Area" on the attached Exhibit E, with no less than twenty- five thousand ( 25, 000) gross square feet of floor area available for lease ( or sale in the sole discretion of Developer) for retail and/ or restaurant uses. Notwithstanding the foregoing sentence, the portion of the City Phase I On- Site Contribution that constitutes the Franchise Utility Payment shall be made in accordance with Article IV Paragraph 1, above, and shall be deducted from the amount contributed by the City to the City Phase I On- Site Contribution as the Franchise Utility Payment is being paid by the EDA. The City agrees to expedite review and acceptance, to the extent possible under the laws and regulations of the Commonwealth and the City, of the On- Site Improvements into the City' s Highway System. Once Developer has completed the stage of construction required for payment of either the City Phase I Off-Site Contribution or the City Phase I On- Site Contribution, Developer shall submit a written notice of such completion together with reasonable evidence of associated " hard" and " soft" cost expenditures associated therewith ( each a " Developer' s Invoice"). If the City has any questions or needs additional information regarding a Developer' s Invoice for the Off-Site Improvements, the City shall provide Developer with written notice of such questions or requests for additional information within five ( 5) business days of the City' s receipt of Developer' s Invoice ( the " City Response"). Developer shall have ten ( 10) business days from receipt of the City Response to respond to any questions or request for additional information ( the " Developer' s Response"). Within thirty ( 30) days of the City' s receipt of a Developer' s Invoice ( or, if applicable, the Developer' s Response which sufficiently responds to City' s questions or request for additional information regarding the Developer' s Invoice), the City shall pay to the Developer the City Phase I Off-Site Contribution and/or the City Phase I On- Site Contribution( as applicable). ARTICLE V DEVELOPER OBLIGATIONS 1. Conditions to Developer' s Obligation to Proceed with Improvements. The Developer's obligation to proceed with construction of each of the Phase I Improvements shall be conditioned upon satisfaction of the following, in its sole and absolute discretion unless otherwise indicated below: 14

23 a. City' s Approvals. i. The City' s issuance of all permits and approvals necessary for construction of the Office Tower, Parking Garage, and Phase I Infrastructure ( which may not be waived by the Developer). ii. The City' s approval of the performance agreement associated with a Commonwealth' s Development Opportunity Fund grant from the Commonwealth of Virginia and/ or agreements associated with any other state or federal grants. iii. The City' s approval of this Development Agreement and all of the City' s funding obligations related to the Project. The foregoing conditions are for the benefit of Developer and notwithstanding 1( a)( ii) (iii), above, at the Developer' s sole discretion, the Developer may elect to proceed with construction of the Phase I Improvements prior to the satisfaction of such conditions. b. Financing Commitments. The Developer' s receipt of financing commitments ( in amounts and under terms acceptable to the Developer in its sole discretion) for the construction of the Office Tower, Parking Garage and Phase I Infrastructure. c. Developer' s Receipt of Grants. i. The Developer' s receipt of a grant through the Commonwealth' s Development Opportunity Fund ( COF) and a Virginia Economic Development Incentive Grant ( VEDIG) upon terms acceptable to Developer in its sole discretion. ii. The Developer' s receipt of an Economic Development Incentive Program EDIP) grant from the EDA upon terms acceptable to Developer in its sole discretion. d. Permits. Developer' s receipt of all necessary permits in order to construct the Office Tower, Phase I On- Site Improvements, and the Phase I Off-Site Improvements within the public right-of-way ( which may not be waived by the Developer). 2. Developer' s Obligations During Construction. 15

24 a. Taxes. The Developer shall pay all real estate, sales, consumer, use and similar taxes in connection with the improvements constructed on the portions of the Property not conveyed to the City or EDA. b. Mechanic' s Liens. The Developer shall keep the ( i) EDA Condominium Unit free and clear of all mechanics' and materialmens' liens at all times in connection with its operation and maintenance and ( ii) any City-owned property used in connection with construction of the Off-Site Improvements ( the " Off-Site Property") free and clear of all mechanics' and materialmens' liens at all times during the construction of the Off-Site Improvements. If any such lien shall at any time be filed against the EDA Condominium Unit or Off-Site Property, or any part thereof, the Developer, within thirty ( 30) days after notice of the filing thereof, shall cause it to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. Nothing contained herein shall be construed to authorize the Developer to subject the Off-Site Property or the EDA Condominium Unit to any liens of mechanics, artisans, laborers, materialmen, contractors or subcontractors, or to any other liens or charges whatsoever arising out of any construction and development work or arising in any other manner in connection with the Project; and the Developer is hereby expressly prohibited from subjecting the Off-Site Property or the EDA Condominium Unit to any such liens or charges. Developer hereby indemnifies, defends and holds the City and the EDA harmless from and against any and all claims, suits, actions and proceedings, losses, costs, damages and expenses including, without limitation, reasonable attorneys' fees and other costs of defending against such claims, suits, actions and proceedings) whatsoever which may be brought or instituted on account of, growing out of, occurring from, incident to or resulting from, directly or indirectly, any and all claims and liens of any such mechanics, artisans, laborers, materialmen, contractors or subcontractors, or other parties providing services or materials to the Developer or the Property. 16

25 c. Inspections. The City or the EDA ( and their respective contractors, consultants and agents) may make periodic inspections of the Phase I Infrastructure and the EDA Condominium Unit. d. Environmental Obligations of Phase I and Phase II Off-Site Improvements and EDA Condominium Unit. With respect to the Phase I Infrastructure and the EDA Condominium Unit, the Developer represents and covenants that: i. The Developer will not hereafter cause, allow or suffer to occur a release, discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solids, liquid or gaseous products or hazardous waste ( a " Spill"), or hazardous substance as those terms are used in applicable federal, state or local laws, regulations, ordinances, guidances, orders or decrees, related to the protection of the environmental and human health as it relates to the environment (" Environmental Laws") at, upon, under or within the Property or any contiguous real property ii. The Developer shall comply strictly and in all respects with the requirements of all applicable Environmental Laws and shall notify the City promptly in the event of any spill or a release of hazardous substance upon the Property, or any other environmental hazard or condition, of which the Developer becomes aware, and shall promptly forward to the City copies of all orders, notices, permits, applications or other communications and reports received by the Developer in connection with any such spill or any other matters relating to any Environmental Laws, as they may affect the Property. iii. The Developer and the Landowners shall indemnify the City, the EDA and their respective successors, assigns and successors- in- title ( collectively, the " Indemnified Parties") and hold the Indemnified Parties harmless from and against all loss, liability, damage and expense, including reasonable attorneys', consultants' and expert witness fees, suffered or incurred by the Indemnified Parties, or any of them, ( a) under or on account of Environmental Laws, including the assertion of any lien thereunder; ( b) with respect to any spill or hazardous substance or condition affecting the 17

26 Property whether or not the same originates or emanates from the Property, or any other contiguous real property, including any loss of value of the public infrastructure improvements or the EDA Condominium Unit as a result of a spill or hazardous substance caused in whole or in part by the acts or omissions of the Developer, its contractors, agents, invitees or licensees; and ( c) with respect to any other matter affecting the Property within the jurisdiction of the United States Environmental Protection Agency, the Virginia Department of Environmental Quality or any similar state, federal or local agency or any successor to any thereof; provided, however, there shall be excluded from the foregoing indemnification and hold harmless agreement any loss, liability, damage or expense, including reasonable attorneys', consultants' and expert witness fees, suffered or incurred by the Indemnified Parties, or any of them with respect to any spill or hazardous substance affecting the Property, whether or not the same originated or emanated from the Property, which is ( y) caused by the Indemnified Parties, or any of them, or their respective agents, employees or officers or( z) occurs, through no act or omission of the Developer, after the conveyance of the Phase I Infrastructure or the EDA Condominium Unit ( the " Title Transfer Date"). The Developer shall continue to indemnify the City and the EDA as provided in this section, from and after the Title Transfer Date, from and against all loss, liability, damage and expense, including reasonable attorneys' fees and costs, as a result of environmental conditions existing at the Property prior to the Title Transfer Date or caused or otherwise brought onto the Property by the Developer. The foregoing indemnification and hold harmless agreement shall expressly survive the expiration or earlier termination of this Agreement. iv. The City acknowledges and agrees that Developer has provided the City a copy of a Phase I Environmental Study of the Parking Garage property to which the City has no objection. 18

27 ARTICLE VI CITY/EDA RESPONSIBILITIES 1. Permits and Approvals. The City shall expedite the review of plans associated with the Phase I Improvements, to the extent possible under the laws and regulations of the Commonwealth and the City. 2. Grants. The City and the EDA shall work in coordination with the Developer as necessary to secure all grant funds, including but not limited to funds to be received from the Commonwealth of Virginia. 3. Performance Agreement. The City shall be responsible for reviewing the performance agreement related to the Commonwealth' s Opportunity Fund, and to the extent that the terms and conditions of such performance agreement are reasonably acceptable to the City, the City shall approve such performance agreement ( subject to award and receipt of the applicable Commonwealth Opportunity Fund grant from the Commonwealth). 4. EDIP Grant. The EDA shall be responsible for the conveyance of the EDIP Grant to Developer, subject to approval and appropriation by the City Council and EDA pursuant to current policies and regulations. 5. City Contribution. The City shall be responsible for securing the allocation of funds ( and transferring such funds to the EDA as necessary) required for the payment of (i) the Parking Garage Purchase Price, ( ii) the City Phase I Off-Site Contribution, and ( ii) the City Phase I On- Site Contribution. As these contributions relate to public improvements, this Agreement shall not be construed to require the City to remit contributions, or any portion thereof, until the public improvements for which payments are tendered have been approved and accepted by the City. 6. Future Phase Improvements. a. Cooperation in Subsequent Phases. The City and EDA acknowledge that Developer intends to develop the Property in at least one additional phase, and the City and EDA hereby agree to use good faith efforts to cooperate with Developer in the coordination of any additional phase( s) of the Project, including but not limited to the construction of Future Phase Off-Site Improvements and Future Phase On- Site Improvements as contained in Article I, above, and as is consistent with the PUD Approval. 19

28 7. Appropriation. Notwithstanding anything in this Agreement to the contrary, all financial obligations or commitments of the City or EDA under this Agreement are subject to appropriation by the Chesapeake City Council adopted in accordance with applicable law. The City and EDA acknowledge that Developer has relied upon the City' s and EDA' s financial representations, and the City and EDA agrees to use its best efforts to seek appropriation of all the funds necessary for the improvements contemplated herein. ARTICLE VII EVENTS OF DEFAULT 1. Events of Default by the Developer. Each of the following shall constitute an " Event Of Default" on the part of the Developer: a. The filing by the Developer of a voluntary proceeding or the consent by the Developer to an involuntary proceeding under present or future bankruptcy, insolvency, or other laws respecting debtor's rights. b. The failure of the Developer to remove or cause to be removed, by bonding or otherwise, any and all liens filed after conveyance to the City or the EDA for work done for the Developer or materials furnished to the Developer with respect to the Phase I Infrastructure or the EDA Condominium Unit within thirty ( 30) days after written notice by the City or the EDA to the Developer of the filing thereof. 2. City / EDA Remedies. If an Event of Default by the Developer occurs hereunder, and persists after a thirty ( 30) day written notice from the City or the EDA to Developer, the EDA or the City may, by written notice to the Developer, perform the obligation of which Developer is in default (the " Self Help") in which case the costs of such Self Help will either be billed to the Developer or paid by the proceeds of performance or payment bonds or other surety posted by the Developer or the Developer' s contractors. 3. Default by the City or the EDA. If either the City or the EDA is in default under the terms of this Agreement, and such default persists after a thirty (30) day written notice from Developer to the defaulting entity, the Developer shall have the right to exercise any remedy available to Developer at law or in equity, except the remedy of specific performance, which is expressly waived by Developer. 20

29 ARTICLE VIII INSURANCE AND INDEMNIFICATION 1. Insurance. During construction of the Phase I Improvements, the Developer shall carry, and/ or shall cause the general contractor to carry, the following types of insurance with respect to the Phase I Infrastructure and the EDA Condominium Unit: a. General Liability. Comprehensive general liability insurance insuring the EDA, the City and the Developer against any and all liability for injury to or death of a person or persons and for damage to property in any way occasioned by or arising out of the activities of the Developer, and its respective agents, contractors or employees, in connection with construction of the Phase I Infrastructure and the EDA Condominium Unit, in the amount of One Million Dollars ($ 1, 000, 000) per occurrence and Two Million Dollars ($ 2, 000, 000) for general aggregate and Two Million Dollars ($ 2, 000, 000) for products/ completed operations aggregate. The general aggregate will apply to this project only. The contractor shall cause the City and the EDA to be named as an additional insured thereunder. The Developer may procure and maintain a blanket" policy to satisfy the requirements of this Article VIII, which may cover other property or locations of the Developer so long as the coverage required in this Section is separate and specific to the Off-Site Improvements and the EDA Condominium Unit. b. Worker' s Compensation. Worker' s Compensation insurance as required by law. c. Policy Requirements. The following general requirements shall apply to all insurance coverage carried by Developer pursuant to this Article VIII: i. Waiver of Subrogation. To the extent available, each policy shall contain a clause whereby the insurer waives all rights of subrogation against the City and the EDA. ii. Financially Sound Company. Such policies shall be procured from financially sound and reputable insurers licensed to do business in the Commonwealth of Virginia and have an A.M. Best rating of not less than A- 8 or, if not rated with A.M. Best, the equivalent of A.M. Best' s surplus size of A- 8 ( or otherwise approved by the City Representative). 21

30 iii. Certificates of Insurance. The Developer shall deliver to the City and the EDA policies, applicable endorsements to the policies adding the EDA and the City as additional insureds and certificates of insurance evidencing such coverage before the commencement of construction. iv. Replacement Certificates of Insurance. Within thirty ( 30) days before expiration of coverage, or as soon as practicable, renewal policies or certificates of insurance evidencing renewal and payment of premium shall be delivered by the Developer to the City and the EDA. v. Non- Cancelable Without Notice. The coverages shall be non- cancelable unless the carrier gives to the City and the EDA thirty ( 30) days' prior written notice of cancellation. 2. Indemnification. The Developer and Landowners shall indemnify the City and/ or the EDA and their respective agents, employees and officials for any claims, demands, charges, actions, suits, damages, penalties, fives and/ or fees arising from injury or damage to any person or property happening on, in, about or in connection with the construction of the Phase I Infrastructure or the construction of the Parking Garage, unless such injury or damage to person or property is caused by the gross negligence or intentional misconduct of the City, the EDA, or any employees or agents of the City or the EDA. ARTICLE IX MANDATORY CONTRACT PROVISIONS 1. Mandatory Contract Provisions. With respect to the Phase I Infrastructure and the Parking Garage, the Developer agrees to insert the following requirements in all bid documents, contracts and purchase orders of over $ 10, 000, and to require all contractors to include such requirements in its subcontracts of over $ 10, 000: a. During the performance of this contract, the contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The contractor agrees to post in conspicuous places, available to 22

31 employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. b. The contractor, in all solicitations or advertisements for employees placed by or on behalf of the contractor, will state that such contractor is an equal opportunity employer. c. During the performance of this contract, the contractor agrees to ( i) provide a drug- free workplace for the contractor's employees; ( ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the contractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition; and ( iii) state in all solicitations or advertisements for employees placed by or on behalf of the Developer that the Developer maintains a drug- free workplace. For the purposes of this section, a " drug- free workplace" means a site for the performance of work done in connection with a specific contract awarded to a contractor in accordance with this Agreement, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the contract. ARTICLE X REPRESENTATIONS AND WARRANTIES OF THE DEVELOPER 1. Developer Inducement. The Developer represents and warrants to the City and the EDA as follows to the best of its actual knowledge: a. The Developer is a duly organized and validly existing corporation under the laws of the Commonwealth of Virginia and has the power and authority to own the Property and other assets and to transact the business in which it is now engaged or proposes to engage. b. The Developer has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and all other instruments to be executed and delivered by the Developer of this Agreement have been duly authorized by all 23

32 requisite action by the Developer, and this Agreement is a valid and binding obligation of the Developer enforceable in accordance with its respective terms, except as may be affected by applicable bankruptcy or insolvency laws affecting creditors' rights generally. c. Neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated with receipt of any applicable financing consents, will conflict with or result in a breach of any agreement or instrument to which the Developer is now a party or otherwise bound or to which any of its properties or other assets is subject, or of any order of decree of any court of governmental instrumentality, or of any arbitration award, franchise or permit, or constitute a default thereunder, or except as contemplated hereby, result in the creation of imposition of any lien or other encumbrance upon any of the properties or other assets of the Developer. d. The Developer is not a party to or otherwise bound by any agreement or instrument or subject to any other restriction or any judgment, order, writ, injunction, decree, award, rule or regulation which materially and adversely affect the business, operations, prospects, properties or other assets, or the condition, financial or otherwise, of the Developer or of the Project. The Developer has received no notice of, and to its best knowledge, is not in default ( i) under any obligation for borrowed money, or (ii) in the performance, observance or fulfillment or any of the obligations, covenants or conditions contained in any other agreement or instrument to which it is a party, by which it is otherwise bound or to which any of its property of the Projects is subject. e. Neither this Agreement nor any document, certificate or financial statement furnished to the City or the EDA by or on behalf of the Developer in connection herewith, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained herein and therein not misleading. There is no fact known to the Developer which materially adversely affects or in the future may ( so far as it is now known to the Developer) have material adverse effect upon the business, operations, prospects, property, other assets or financial condition of the Developer or of the Project which has not been set forth in 24

33 this Agreement or in other documents, certificates and financial statements furnished to the City or the EDA or on behalf of the Developer in connection with the transactions contemplated hereby. ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE CITY/EDA 1. City Inducement. The City represents and warrants to the Developer as follows: a. The City is a political subdivision of the Commonwealth of Virginia, duly organized and validly existing under the laws of the Commonwealth of Virginia, with full legal right, power, and authority to enter into and perform its obligations under this Agreement. b. The City has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and all other instruments to be executed and delivered by the City in connection with its obligations hereunder. The execution, delivery and performance by the City of this Agreement have been duly authorized by all requisite action by the City, and this Agreement is a valid and binding obligation of the City enforceable in accordance in accordance with its respective terms, except as may be affected by applicable bankruptcy or insolvency laws affecting creditors' rights generally. c. To the best knowledge of the City representative executing this Agreement, the City is not a party to or otherwise bound by any agreement or instrument or subject to any other restriction or any judgment, order, writ, injunction, decree, award, rule or regulation which materially and adversely affect the business, operations, prospects, properties or other assets, or the condition, financial or otherwise of the City or of the Project. 2. EDA Inducement. The EDA represents and warrants to Developer as follows: a. The EDA is a political subdivision of the Commonwealth of Virginia, duly organized and validly existing under the laws of the Commonwealth of Virginia, with full legal right, power, and authority to enter into and perform its obligations under this Agreement. b. The EDA has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and all other instruments to be executed and 25

34 delivered by the EDA in connection with its obligations hereunder. The execution, delivery and performance by the EDA of this Agreement have been duly authorized by all requisite action by the EDA, and this Agreement is a valid and binding obligation of the EDA enforceable in accordance in accordance with its respective terms, except as may be affected by applicable bankruptcy or insolvency laws affecting creditors' rights generally. c. To its best knowledge of the EDA Representative, the EDA is not a party to or otherwise bound by any agreement or instrument or subject to any other restriction or any judgment, order, writ, injunction, decree, award, rule or regulation which materially and adversely affect the business, operations, prospects, properties or other assets, or the condition, financial or otherwise of the EDA or of the Project. ARTICLE XII MISCELLANEOUS 1. Assignment. The Developer may assign its rights and obligations under this Agreement without the prior written consent of the EDA or the City to any entity that controls, is controlled by, or is under common control with the Developer. Except as permitted in the preceding sentence, any other assignment of the Developer' s rights and obligations hereunder shall require the prior written consent of the City and the EDA. 2. Intentionally Deleted. 3. Entire Agreement. This Agreement incorporates all prior negotiations and discussions between the parties regarding its subject matter and represents the entire agreement of the City, and the EDA and the Developer for the Project. This Agreement may only be modified by written instrument executed by the City, the EDA and the Developer. 4. Headings. The captions and section headings container in this Agreement are for convenience of reference only and shall not be considered in any interpretation of the provisions of this Agreement. 5. Notices. Any notice, communication, or request under this Agreement shall be sufficiently given or delivered if dispatched by either ( a) certified mail, postage prepaid, return receipt requested, ( b) nationally recognized overnight delivery service ( next business day service), or ( c) hand- delivery ( if receipt is evidenced by a signature of the addressee or authorized agent), and addressed to the applicable parties as follows: 26

35 Developer: Will Old, Esq., Chief Legal Officer 500 Volvo Parkway Chesapeake, Virginia With a Copy To: R.J. Nutter, II, Esq. Troutman Sanders LLP 222 Central Park Avenue, Suite 2000 Virginia Beach, Virginia City: Mr. James E. Baker City Manager 306 Cedar Road Sixth Floor Chesapeake, Virginia With a Copy To: Jan L. Proctor, Esq., Chesapeake City Attorney 306 Cedar Road Chesapeake, Virginia EDA: Mr. Clyde T. Clark, Jr., Chairman do Mr. Steven Wright Director, Chesapeake Economic Development 676 Independence Parkway, Suite 200 Chesapeake, Virginia With a Copy To: Jan L. Proctor, Esq., Chesapeake City Attorney 306 Cedar Road Chesapeake, Virginia Any notice communication, or request so sent shall be deemed to have been " given" ( a) as of the next business day being sent, if sent by nationally recognized express mail service, b) as of the fifth business day after being sent, if sent by Registered or Certified U.S. Mail, or ( c) upon receipt, if sent by hand delivery. Each of the parties may change their address for notice purposes by giving notice thereof to the other parties, except that such change of 27

36 address notice shall not be deemed to have been given until actually received by the addressee thereof. 6. Partial Invalidity. If any term, covenant, condition, or provision of this Agreement, or the application to any person or circumstance shall, at any time or to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall except to the extent such result is clearly unreasonable) not be affected thereby, and under such circumstance each terms, covenant, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law, insofar as such enforcement is not clearly unreasonable. 7. Counterparts. This Agreement may be so executed in counterparts, each of which shall be deemed to an original, and such counterparts shall constitute one and the same instrument. 8. Choice of Law and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia, including any conflicts of laws provisions. Any lawsuit, action, or proceeding arising under this Agreement shall, to the extent there is a federal jurisdiction over the parties and subject matter, be brought exclusively in the District Court of the Eastern District of Virginia, Norfolk Division, and to the extent there is no federal jurisdiction, in the Circuit Court for the City of Chesapeake, Virginia. 9. Force Majeure. For the purpose of any of the provisions of this Agreement, neither the City, the Developer, the EDA, as the case may be, nor any successor in interest, shall be considered in breach of or default in any of its obligations, including, but not limited to, the beginning and completion of construction, or progress in respect thereto, in the event of delay in the performance of such obligations due to causes beyond its control, including but not restricted to, strikes, lockouts, actions of labor unions, riots, storms, floods, litigation, explosions, acts of nature or of the public enemy, acts of state or federal government, insurrection, mob violence, terrorism ( foreign or domestic), civil commotion, sabotage, malicious mischief, vandalism, inability ( notwithstanding good faith and diligent efforts) to procure, or general shortage of, labor, equipment, facilities, materials, or supplies in the open market, unforeseen underground conditions that result in construction delays or extraordinary costs, defaults of independent contractors or subcontractors ( provided that remedies are being diligently pursued against the same), failures of transportation, fires, other casualties, epidemics, 28

37 quarantine restrictions, freight embargoes, severe weather, inability ( notwithstanding good faith and diligent efforts) to obtain governmental permits or approvals, delays of contractors or subcontractors due to such causes, ( provided that remedies are being diligently pursued against the same) or delays caused by misfeasance or nonfeasance of the other party. It being the purpose and intent of this Paragraph that in the event of the occurrence of any such delays, the time or times for the performance of the covenants, provisions, and agreements of this Agreement shall be extended for the period of the delay ( including any time reasonably required to recommence performance due to such delay). The affected party shall use reasonable efforts to remedy with all reasonable dispatch the cause or causes preventing it from carrying out its agreements; and provided further, that the settlement of strikes, lockouts, and other industrial disturbances shall be entirely within the discretion of the affected party, and the affected party shall not be required to make settlement of strikes, lockouts, and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is, in the judgment of the affected party, unfavorable to the affected party. Notwithstanding the above, ( a) the Developer may not rely on its own acts or omissions as grounds for delay in its performance and ( b) the absence of immediately available funds shall not be grounds for delay by the Developer unless such absence is as a result of a default by the EDA to make disbursements of Bond Proceeds from time to time as provided in this Agreement. 10. No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co- partners or creating or establishing the relationship of a joint venture between the City, the EDA and the Developer or as constituting the Developer as the agent or representative of the City or the EDA for any purpose or in any manner under this Agreement, it being understood that the Developer is an independent contractor hereunder. 11. Representatives Not Individually Liable. No member, official, representative, or employee of the City or the EDA shall be personally liable to the Developer or any successor in interest in the event of any default or breach by the EDA for any amount which may become due to the Developer or successor or on any obligations under the terms of the Agreement. No partner, member, representative, attorney or employee of the Developer or any of its members or 29

38 any lender providing construction or permanent financing to the Developer shall be personally liable to the City or the EDA in the event any default or breach by the Developer for any amount which may become due to the City of the EDA or on any obligations under the terms of this Agreement. 12. Ancillary Documents. The City will designate a representative who will be authorized, on behalf of the City, to execute any and all other documents necessary or appropriate to effectuate the transactions contemplated by this Agreement, provided such documents to not materially alter the relationship of the parties or the principal elements of the Project, and to grant such approvals and consents on behalf of the City. 13. Third Party Beneficiary. Nothing contained in this Agreement shall be construed to confer upon any other party not a party to this Agreement the rights of a third party beneficiary. 14. Business Days. Whenever the provisions of this Agreement call for any payment or the performance of any act on or by a date that is not a business day, including the expiration date of any cure periods provided herein, then such payment or such performance shall be required on or by the immediately succeeding business day. 15. Incorporation of Exhibits. All exhibits, schedules, and recitals are true and correct and form a part of this agreement. 16. Conflict of Terms. It is the intention of the City, the EDA, and the Developer that if any provision of this Agreement is capable of two constructions, one of which would render this provision valid and enforceable, then the provision shall have the meaning which renders it valid and enforceable. 17. No Waiver. No failure on the part of the City, the EDA or the Developer to enforce any covenant or provision contained in this Agreement nor any waiver of any right under this Agreement shall discharge or invalidate such covenant or provision or affect the right of the other party to enforce the same in the event of any subsequent default. 18. Compliance with Laws. The Developer shall, at all times, be subject to all applicable laws pertinent to the Project, this Agreement, and the Developer' s actions in connection with the Project and this Agreement. Nothing in this Paragraph or any other part of this Agreement, however, shall be construed to ( a) limit or prevent the Developer from challenging at law or in equity the applicability of any applicable law and/or pursuing its rights in furtherance thereof through appropriate judicial proceedings or ( b) constitute a waiver of due process. If the 30

39 Developer' s challenge is successful, the Developer shall not be required by the provisions of this Agreement to comply with such applicable law. 19. Time is of the Essence. Time is of the essence in the performance of the obligations of the Developer, the EDA and the City under this Agreement. 20. City' s Legislative Authority. Notwithstanding any provision herein to the contrary, while pursuing the benefits of this Agreement, the City remains accountable to its residents such that no term of this Agreement shall interfere with the City' s police powers or the powers conferred upon it by the Constitutions and laws of the Commonwealth of Virginia including, without limitation, the power to create a special service district or a community development authority district that includes the Property. 21. Further Assurance. The parties agree to undertake such further actions as necessary to carry out and enforce the terms and intent of this Agreement. If it becomes necessary to amend any prior agreement( s), including but not limited to the PUD Approval, between the Developer, the City and/ or the EDA, in order to carry out the terms of the Development Agreement, the City and/ or the EDA will support any such amendment( s). 22. Estoppel Certificates. The City, the EDA and the Developer, at any time and from time to time, upon not less than thirty ( 30) days prior written notice from a party hereto, or to a person designated by such party, such as a tenant, an institutional lender or a mortgagee of the Developer, shall execute, acknowledge, and deliver to the party requesting such statement, a statement in reasonably acceptable form to the requesting party certifying, among other matters, a) that this Agreement is unmodified and in full force and effect ( or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), b) stating whether or not, to the best knowledge of the signer of such certificate, the City, the EDA or the Developer is in breach and/ or default in performance of any covenant, agreement, or condition contained in this Agreement and, if so, specifying each such breach and/or default of which the signer may have knowledge, and ( c) any other factual matters reasonably requested in such estoppel certificate, it being intended that any such statement delivered hereunder may be relied upon by the party requesting such statement and/ or any person not a party to this Agreement ( if such other person is identified at the time such certificate was requested). At any time after completion of the Project as provided herein, the City and/ or the EDA shall, at the request of the Developer, promptly execute, acknowledge and deliver to the Developer a 31