MEMORANDUM OF UNDERSTANDING

THIS MEMORANDUM OF UNDERSTANDING (this “MOU” or “Agreement”) is made this ____ day

of ______________, 2014 (the “Effective Date”), by and between the BOARD OF EDUCATION OF

FREDERICK COUNTY, MARYLAND, a body corporate and politic of the State of Maryland (the “BOE”) and

RBG FAMILY LLC, a Maryland limited liability company (the “Owner”), its successors and assigns, (BOE

and Owner are sometimes referred to herein collectively as the “Parties”).

BACKGROUND:

A. By Ordinance No. 13-20-648, dated October 17, 2013, the Board of County

Commissioners of Frederick County, Maryland (the “County”) granted an amendment to the Phase I

planned unit development (“PUD”) approval in Rezoning Case No. 05-09(A) enacted by Ordinance No.

06-33-429 dated September 28, 2006 (“Amended Phase I Plan”). The Amended Phase I Plan provides for

a maximum of 855 residential units, including approximately 180 all-age single-family detached dwelling

units, 265 all-age single-family attached dwelling units, 210 all-age multifamily dwelling units and a 200-

unit Continuing Care Retirement Community (“CCRC”)1, to be located on all those lots or parcels of land

containing 197.24 + acres of land located on the east side of Ballenger Creek Pike, 550 feet south of

Corporate Drive, west of Kingsbrook PUD, and north of Ballenger Creek shown and described on EXHIBIT

A attached hereto and incorporated herein (“Owner’s Land”), known as the Ballenger Run Planned Unit

Development (the “Ballenger Run PUD” or the “Project”). Condition no. 7 of the Amended Phase I Plan

states as follows:

“The Applicant shall convey in fee simple to the Frederick County Board of Education (‘BOE’),

with no monetary consideration paid, a public school site totaling a minimum of 13 +/- acres, to

serve the project and the surrounding region. The public school site will be conveyed to the BOE

upon: i) the recordation of the first subdivision plat for lots in the project; and ii) BOE’s

acceptance of the conveyance of land for the public school site. In the event that the BOE

determines not to accept the public school site, Applicant shall retain fee simple ownership of

the public school site, and may use the public school site in a manner consistent with other uses

with the project. Requirements for satisfaction of the Forest Resource Ordinance (“FRO”) and

stormwater management quantity control for the public school site shall be addressed within

the overall project, allowing the public school site to be conveyed net of such requirements. A

separate Memorandum of Understanding (‘MOU’) between the BOE and Applicant shall be

executed prior to conditional Phase II approval for the project (assuming commercially

reasonable efforts by both parties), which MOU shall establish and control other aspects of the

public school site and the rights and responsibilities of the parties relative to the public school

site and the construction of an elementary school.” (“School Site Dedication Condition”).

1 The conditions of the Amended Phase I Plan approval for Ballenger Run permit Owner to convert the 200-unit CCRC into 200 age-restricted (over 55) multi-family dwelling units with Planning Commission approval.

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B. By virtue of Section 4.2 G. 3. entitled “School Site Dedication” of a Development Rights

and Responsibilities Agreement between the County and Owner, dated October 17, 2013 and recorded

among the Land Records of Frederick County, Maryland (“Land Records”) in Liber 9814, Folio 12

(“DRRA”), Owner has agreed (consistent with the School Site Dedication Condition) to convey to BOE a

parcel of land from Owner’s Land (the “School Site”), at no cost to BOE, for the purpose of BOE

constructing an anticipated public elementary school as hereinafter described (the “School”) to serve

students residing in the Project and the surrounding region. Owner is, at its sole cost and expense, in the

process of obtaining Phase II PUD development approvals for the Project from the Frederick County

Planning Commission (“Planning Commission”) and the aforesaid Section 4,2.G.3 of the DRRA requires

execution of this MOU prior to the Planning Commission’s conditional approval of the said Phase II PUD

Plan development approvals.

C. In furtherance of and pursuant to its obligations under the Amended Phase I Plan and

the DRRA, Owner desires to enter into this MOU with BOE to set forth their agreement regarding the

School Site as well as the respective rights and responsibilities of the Parties, it being understood and

agreed that in accordance with the aforesaid Section 4.2.G.3 of the DRRA, in the event that this MOU

conflicts with any provision of the DRRA, this MOU shall be the prevailing document with regard to the

(All Age Public) School Site.

NOW, THEREFORE, and in consideration of the mutual promises contained herein, and other

good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the Parties

agree as follows:

1. THE SCHOOL SITE – CONVEYANCE-CONDITIONS

(a) As established in the School Site Dedication Condition and Section 4.2 G. 3. of the DRRA,

Owner shall convey to BOE good and marketable fee simple title to the School Site (at such time as

hereinafter provided and in the discretion of BOE), at no cost to BOE, which School Site shall be

comprised of a minimum of 13 acres from Owner’s Land (net of land or easements needed to satisfy the

Frederick County Forest Resource Ordinance (“FRO”) and net of land needed for stormwater

management quantity control for the School Site which requirements Owner shall satisfy on other

portions of Owner’s Land) with direct frontage on Ballenger Creek Pike, to be substantially configured as

shown on EXHIBIT B attached hereto and incorporated herein. The School Site shall be used by BOE for

the purpose of BOE constructing a public school (anticipated elementary level) thereon to serve school

students residing in the Project and the surrounding region. Owner will convey the School Site to BOE, at

such time as requested by BOE in its sole discretion as hereinafter provided, after all of the following

conditions that are for BOE’s benefit have been satisfied (or time frames expired, whichever shall first

occur, as hereinafter provided): i) BOE’s approval of the location, access, design and configuration of the

School Site within the Project (“BOE School Site Approval”); ii) the recordation among the Land Records

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of the “Plat” (defined herein below); and (iii) BOE’s authorization for the deed conveyance of the School

Site by Owner to BOE in accordance with the terms hereof (“BOE Conveyance Approval”).

(b) In order to obtain BOE School Site Approval, Owner shall provide BOE with the complete

Phase II Plan, i.e. the preliminary subdivision plan and/or site plan for the portion of the Project that

includes the School Site including any proposed easements over the School Site (the “Phase II Plan”),

that Owner proposes to submit to the Planning Commission and a phasing schedule and plan for the

timing of the recording of the Plat for the School Site. It is understood and agreed that the School Site

that is the subject of the BOE School Site Approval and that is shown on the Phase II Plan shall be

substantially similar to the school site shown on EXHIBIT B, attached hereto and incorporated herein.

(c) Owner and BOE shall work together diligently and in good faith in order to allow BOE to

grant BOE School Site Approval within ninety (90) days of the Planning Commission’s approval of the

Phase II Plan.

(d) The parties acknowledge that the School Site has not yet been subdivided from the balance

of Owner’s Land in order to create and establish the School Site as a separately transferable building lot

of record. Promptly following the Planning Commission’s approval of the Phase II Plan, Owner hereby

agrees, at Owner’s cost and expense, to cause an outlot plat, addition plat or other plat(s) as

determined appropriate by the Frederick County Community Development Division (the “Plat”) to be

prepared by an engineer/surveyor licensed in the State of Maryland and retained by Owner at its

expense, which shall: (i) legally subdivide the School Site from the balance of Owner’s Land into a

separately transferable building lot of record with water and sewer guaranteed for completion to the

property line and other utilities accessible to the property line; (ii) comply with any and all rules,

regulations and/or requirements of any federal, state and/or local governmental authority exercising

jurisdiction over the subdivision process (collectively the “Applicable Governmental Authorities”); and

(iii) conform substantially to the School Site shown on the Phase II Plan, which is shown and depicted on

EXHIBIT B. The Plat will also allow the fee simple transfer by Owner of approximately 0.3+/- acres of land

substantially as and where illustrated on EXHIBIT B to the County to permit the widening of Ballenger

Creek Pike (“Widening Strip”) in accordance with the terms of the Project’s Adequate Public Facilities

Letter of Understanding (the “APFO LOU”) and as described in Section 2 of this MOU below. BOE

acknowledges and agrees that the exact acreage of the Widening Strip shall be subject to minor

increases or decreases, the exact acreage being subject to any such minor adjustment solely by reason

of the final engineering requirements associated with the improvement plans for Ballenger Creek Pike or

as may be reasonably required by the County or mutually agreed upon by the Parties (but shall not

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reduce the size of the School Site to less than 13 acres). In no event shall the Widening Strip be part of

the School Site or require any dedication to the public by BOE. Owner hereby agrees to undertake good-

faith, due diligent efforts to: (i) prepare the Plat; and (ii) submit the Plat to the Applicable Governmental

Authorities within six (6) months of the date of the Planning Commission’s approval of the Phase II Plan

(the “Phase II Approval”). Upon such submission, Owner shall, with the cooperation of BOE, exercise

good-faith, due diligent efforts to obtain the necessary approvals of the Plat from the Applicable

Governmental Authorities and to promptly record the Plat among the Land Records and Owner shall

dedicate the Widening Strip to the County (it being understood that the School Site will have direct

frontage on and access to Ballenger Creek Pike even after the Owner’s conveyance of the Widening Strip

to the County) upon receipt of BOE Conveyance Approval. Prior to submission of the Plat to the County,

Owner shall provide a copy thereof to BOE for review and approval.

(e) If, prior to the “Earliest School Site Conveyance Date” (hereinafter defined), BOE

determines, in its sole discretion, that, notwithstanding the substantial compliance of the School Site

with EXHIBIT B attached hereto, the availability of the School Site and the willingness of Owner to create

the School Site through the subdivision process and to convey the same to BOE per the terms of this

Agreement and the DRRA, BOE will not accept conveyance of the School Site, and notifies Owner in

writing of the same then, in that event (and only if permitted by the DRRA, the County or other

Applicable Governmental Authorities), this Agreement shall be deemed terminated.

(f) Following BOE School Site Approval, BOE shall diligently pursue and use its best efforts

to obtain any and all approvals from the Maryland State Board of Education, Maryland Department of

Planning and/or any other departments or divisions of the State of Maryland, that may be necessary in

order to finalize BOE Conveyance Approval prior to the hereinafter defined “Earliest School Site

Conveyance Date”. It is understood and agreed that the School Site that is the subject of the BOE School

Site Approval and that is shown on the Phase II Plan approved by the Planning Commission shall remain

substantially unchanged on the final Plat creating the School Site.

(g) Following the satisfaction of the above-described conditions to the conveyance of the School

Site (assuming that BOE has not notified Owner of its non-acceptance of the School Site as set forth in

subsection (e) above), and at such time as BOE in its sole discretion (as limited below) chooses and so

notifies Owner in writing, Owner shall convey in fee simple, by special warranty deed good and

marketable title to the School Site to BOE free of liens, encumbrances, occupants, licensees or tenants.

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(h) Provided that Owner is diligently pursuing the approval of the Phase II Plan and the Plat and

is not otherwise in default of its obligations under this Agreement or the DRRA, and notwithstanding

BOE’s sole discretion regarding the timing for deed conveyance of the School Site, in no event shall

Owner be required to convey the School Site to BOE prior to the first to occur of (i) December 31, 2015;

or (ii) the recordation among the Land Records of the first residential subdivision lot of record for the

Project (“Earliest School Site Conveyance Date”).

(i) BOE agrees to exercise its discretionary right to compel Owner to convey the School Site to

BOE no later than the first to occur of (i) December 31, 2018; or (ii) the recordation among the Land

Records of the subdivision plat that includes the 501st residential lot in the Project, with time being of

the essence of this subparagraph (i) (“Latest School Site Conveyance Date”).

2. DEVELOPMENT OBLIGATIONS/COOPERATION. In addition to the other obligations described

herein, Owner and BOE further agree as follows:

A. ACCESS TO SCHOOL SITE.

1. Owner acknowledges and agrees that the APFO LOU requires Owner,

prior to recordation of the subdivision plat that includes the 100th equivalent dwelling unit in Ballenger

Run PUD (with completion prior to issuance of a building permit for the 200th equivalent dwelling unit in

Ballenger Run PUD) to: (i) design, permit, provide right of way, construct and dedicate to public use a

local street (meeting County standards) that will serve (among other functions) as an east-west internal

connection between the School Site and the “Secondary School Site Access Road” (hereinafter

described), the Project and Ballenger Creek Pike (the “Proposed Internal Connection”). It is anticipated

that the Proposed Internal Connection will be constructed by Owner to County standards as a two (2)

lane local public road in the general location identified on EXHIBIT B (the exact location of the Proposed

Internal Connection will be subject to review and approval by the Applicable Governmental Authorities

in connection with the Project’s Phase II Plan approval). As stated above, the Proposed Internal

Connection will connect the School Site to Ballenger Creek Pike via another planned future public

roadway to be constructed by Owner at its sole expense, to County standards as either a collector or

sub-collector roadway (with the determination to be made by the Applicable Governmental Authorities

in conjunction with the Project’s Phase II Plan Approval), in the approximate location identified on

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EXHIBIT B as “Secondary School Site Access Road.” It is understood and agreed that the design,

permitting and construction of the Proposed Internal Connection and the Secondary School Site Access

Road within the dedicated right-of-way from Owner’s Land (that will be outside the boundaries of the

School Site) must be completed by Owner in a manner to serve and satisfy the capacity and use

requirements of the School Site, the School and the development of the Project to be completed by

Owner within the Ballenger Run PUD.

a. In the event that (a) the Proposed Internal Connection and the Secondary

School Site Access Road are not both completed by Owner on the date that BOE desires to commence

development of the School Site and (b) the Planning Commission and the Frederick County Community

Development Division (“CDD”) mandate that vehicular access to the School Site from Ballenger Creek

Pike be via the Proposed Internal Connection and the Secondary School Site Access Road, or some

portion thereof, then the parties agree that BOE shall have the right, but not the obligation (it being

understood that BOE does not require the Proposed Internal Connection and Secondary School Site

Access Road for access to the School Site that will otherwise come from direct frontage on Ballenger

Creek Pike) to undertake design, permitting and construction at its expense, of that portion of the

Proposed Internal Connection and the Secondary School Site Access Road required to serve the School

and the School Site as directed by the County. In such case, Owner shall fully cooperate with BOE

(without charge to BOE) in the acquisition of any permits, easements or rights of way reasonably

necessary in connection with the design, permitting and/or construction of all or any portion of the

Proposed Internal Connection and/or the Secondary School Site Access Road, and grant to BOE those

easements or rights of way reasonably necessary in connection therewith, all as directed by the County.

b. In the event that BOE commences development of the School Site prior

to the date that Owner commences construction of the Secondary School Site Access Road and the

Proposed Internal Connection, and further provided that CDD and the Planning Commission do not

require BOE to provide vehicular access to the School Site via the Proposed Internal Connection, then

Owner agrees to construct a pedestrian pathway to County standards within the right of way (provided

by Owner from Owner’s Land) of the Proposed Internal Connection in order to provide residents and

students of the Project with safe, regularly maintained (at Owner’s expense) and reasonably convenient

pedestrian access to the School Site, and to complete construction of said pedestrian pathway on or

before the date that the School constructed by BOE on the School Site is open to students. Owner shall

construct the Proposed Internal Connection and the Secondary School Site Access Road to their final

approved County roadway standards in conjunction with the overall development of the Project, with

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the timing of said construction to be at the sole discretion of Owner, subject only to the requirements of

permitting and engineering divisions of the County.

2. The Parties intend that the School Site shall have direct frontage on and

adequate and appropriate access to Ballenger Creek Pike along the School Site’s frontage, with the

preferred points of entry into the School Site from Ballenger Creek Pike being those identified on

EXHIBIT B (collectively, the “School Site BCP Access.”) Owner acknowledges and agrees that the APFO

obligates Owner to: (i) design, permit, provide right of way, construct and dedicate to public use

Ballenger Creek Pike as a four-lane divided highway of varying width (4’ to 20’) median, or undivided

where deemed commercially reasonable due to cost or adverse right-of-way constraints from the bridge

at the southern end of the Owner’s Land frontage to Corporate Drive. Owner agrees to request CDD

and Planning Commission approval of the School Site BCP Access in conjunction with the Phase II Plan

and the Owner’s engineering and design of the aforesaid widening, and Owner further agrees to

construct to County or State standards curb cuts and entrance aprons at the location of the School Site

BCP Access (if approved by CDD and the Planning Commission and upon the written request of BOE) in

conjunction with its construction of said widening. BOE agrees to cooperate with Owner in order to

obtain final approval of the location, size and improvement standards of the School Site BCP Access,

including providing Owner with “typical” design specifications within sixty (60) days of Owner’s written

request, which may be provided by electronic mail.

B. GRADING. Owner shall have the right, but not the obligation, to prepare a mass grading

plan for the entirety of Owner’ s Land, including the School Site, and to conduct a mass grading

operation in accordance with said mass grading plan, which may include grading all or a portion of the

School Site at Owner’s discretion; provided, however, that nothing herein shall obligate Owner to

deliver the School Site to BOE at the final grade shown on any such mass grading plan for the entirety of

Owner’s Land. In the event that Owner elects to include the School Site within the mass grading plan for

the Project, Owner shall deliver to BOE a set of its improvement and mass grading plans for Owner’s

Land prior to submission to the Applicable Governmental Authorities, and BOE shall have the right, in its

reasonable discretion, to approve all proposed materials or soils to be brought on or removed from the

School Site, all material changes to the existing grade on the School Site, and BOE shall further have the

right, as provided for in Section 3 of this MOU, to have a Geotechnical Engineer or other representative

present at the School Site during all times that grading activities are conducted on the School Site by

Owner and such Geotechnical Engineer shall have the right to approve or disapprove of any grading

work or materials that are not materially consistent with the work and materials approved by BOE on

the improvement and grading plans provided to BOE by Owner as aforesaid.

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C. STORMWATER MANAGEMENT AND FOREST RESOURCE MITIGATION. Whether or not

BOE elects to commence development and construction of the School Site and the School prior to

Owner commencing development of the Project, the requirements for satisfaction of the FRO and pre-

2009 stormwater management regulations quantity control for the School Site shall be satisfied by

Owner within Owner’s Land and the overall Project, allowing the School Site to be conveyed net of land

or easements necessary to meet such requirements. BOE shall be responsible for all stormwater quality

control requirements in connection with the construction of the School on the School Site. Owner shall

include the School Site in the FRO and stormwater management plans that it submits with the Phase II

Plan (and any subsequent improvement or construction plans for the Project). Notwithstanding any

other provision of this Agreement, BOE shall have the right to proceed with acquisition, permitting,

development and construction of the School Site regardless of whether Owner is proceeding with

development of Owner’s Land for the Project, without undertaking or assuming the obligation of Owner

to satisfy the requirements of FRO and stormwater management quantity for the School Site or the

overall Project, and Owner shall fully cooperate with BOE in that regard.

3. RIGHT OF ENTRY

(a) BOE Access to Site. The parties acknowledge that BOE and its employees, contractors,

subcontractors, consultants, representatives, invitees, officials, and agents (collectively “BOE’s

Representatives”) shall have the right at any time, following the Effective Date of this Agreement and

provided that BOE provides Owner with at least twenty-four (24) hours prior written notice (which may

be done by electronic delivery), to enter the School Site from time to time during the term of this

Agreement to conduct such physical, environmental and/or geotechnical tests and studies as BOE shall

reasonably determine in connection with its intended development of the School Site, and to design,

survey, facilitate, construct and complete the School in accordance with the approved development

applications and building permits issued for the Project and/or the School Site (the “Access Period”). In

the event the donation, transfer and conveyance of the School Site is not consummated hereunder for

any reason, copies of all data, materials and other information, including, plans, specifications,

engineering studies and drawings, sketches, test results, etc. accumulated during the Access Period, or

thereafter by BOE in connection herewith, shall be delivered to Owner without additional cost and

without any warranty or representation of BOE related thereto. It is agreed by BOE that all such tests

and studies shall be conducted in a manner so as not to unreasonably interfere or disrupt Owner’s

possession and enjoyment of the School Site. It is further understood that BOE shall properly identify

and mark any and all disruptions to the surface of the School Site and the soil thereon so as to avoid any

hazard which may result from any open holes or other obstructions caused as a result of such tests and

studies, and BOE shall not allow to remain on the School Site any open holes or disruptions to the

surface of the School Site which would endanger or jeopardize or otherwise injure any persons who may

be present on the School Site. Upon the completion of any tests and studies performed hereunder, BOE

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shall return the School Site to substantially the same condition as it was prior to the performance of

such tests and studies. As a material and integral term of this Agreement and as a condition to BOE’s

right to enter the School Site during the Access Period, BOE hereby indemnifies and holds Owner, and its

successors and assigns, harmless from and against all and every manner of action and actions, cause or

causes of action, suits, debts, sums of money, accounts, reckonings, bills, covenants, contracts,

controversies, agreements, trespasses, damages, judgments, costs, expenses, attorneys' fees, court

costs, penalties, fines, settlements, claims, orders and demands whatsoever, of every nature and

description, whether at law or in equity, arising, directly or indirectly, from or in any way pertaining to

the activities of BOE or BOE’s Representatives upon the School Site during the Access Period as

described herein, but excluding any such matters arising from the negligence of Owner, its agents,

consultants, employees, contractors, invitees and representatives (collectively “Owner’s

Representatives” and collectively with BOE’s Representatives, the “Parties’ Representatives”). The

obligations to restore the School Site and indemnify Owner hereunder shall survive any termination of

this Agreement. BOE agrees to maintain, and to require any and all of BOE’s Representatives entering

upon the School Site pursuant hereto to maintain liability insurance in commercially reasonable

amounts to cover possible loss or damage arising from its activities on the School Site; to require, in the

case of BOE’s Representatives, that such insurance policies list Owner as an additional insured

thereunder; and to provide Owner, upon request, with a copy of such insurance policies together with

certificates evidencing that Owner is listed as an additional insured thereunder.

(b) The Parties’ Representatives shall at all times comply with this MOU and applicable

laws, regulations, and permits pertaining to development of the School Site. The Parties’

Representatives, are required to exercise all customary and reasonable safety precautions and to

exercise due care in connection with the entry onto the School Site as set forth in this MOU.

4. OWNER’S CONTINGENCIES TO SCHOOL SITE CONVEYANCE

(a) Until the Phase II Approval, the DRRA preserves Owner’s ability to construct the

Ballenger Run PUD either as an age-restricted community (in accordance with Sections 3.2 and 4.1 of

the DRRA) or as an all-age community (in accordance with Sections 3.3 and 4.2 of the DRRA). The

Parties hereby agree that this MOU applies only to the conveyance of the School Site described in the

School Site Dedication Condition and Section 4.2 (G) of the DRRA and required in connection with the

development of the Ballenger Run PUD as an all-age community (either with the CCRC or with 200 age-

restricted multi-family dwelling units). In the event that Owner, its successors or assigns, commences

construction of the Project as an entirely age-restricted community pursuant to Sections 3.2 and 4.1 of

the DRRA, then if permitted under the terms of the DRRA, this MOU shall be null and void and of no

further legal effect, and a new MOU for the School Site to be conveyed as part of the entirely age-

restricted community shall be required. Upon the approval of the Phase II Plan for the Project as an all-

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age community (either with the CCRC or with 200 age-restricted multi-family dwelling units), this

contingency shall be deemed satisfied and waived by Owner.

(b) Notwithstanding anything contained in this Agreement to the contrary and subject to

the terms and conditions of the Amended Phase 1 Plan and DRRA, Owner shall have the right to

terminate this Agreement prior to the Earliest School Site Conveyance Date, time being of the essence, if

Owner, after exercising all commercially reasonable efforts and using due diligence, fails to obtain and

notifies BOE in writing that it has failed to obtain “final approval” of (i) the Amended Phase I Plan for all

of the units in the Project to be marketed and sold to buyers of all ages, (ii) the Phase II Plan, and (iii) the

APFO LOU for the initial phase of the Project (collectively the “Section 1 Development Approvals”).

Unless Owner properly terminates this MOU in accordance herewith prior to the Earliest School Site

Conveyance date, upon the first to occur of the Owner obtaining final approval of the Section 1

Development Approvals, or the Earliest School Site Conveyance Date, the contingency contained in this

subparagraph (b) shall automatically be deemed fully satisfied, waived, null and void and Owner shall be

absolutely and unconditionally obligated to convey the School Site to BOE no later than the Latest

School Site Conveyance Date in accordance with this MOU. For the purposes of this Agreement, the

Owner shall be deemed to have obtained “final approval” of the Section 1 Development Approvals, in

satisfaction of this contingency, when all conditions of said approvals have been satisfied and all

applicable appeals periods have expired without the filing of any appeal, or if an appeal(s) was filed, the

appeal has been defeated beyond the possibility or existence of further appeal of any kind. Should

Owner terminate this MOU in accordance with this subparagraph (b), the School Site Dedication

Condition under the Amended Phase 1 Plan, the DRRA and the Phase II Plan shall be deemed unmet and

unsatisfied by Owner.

5. EASEMENTS

(a) Owner shall grant and convey to BOE (without charge to BOE) all reasonably necessary

utility easements and rights of way through Owner’s Land and the Project for infrastructure

improvements necessary to serve the School to be constructed on the School Site.

(b) BOE and Owner agree to reasonably cooperate to extend to the other such

miscellaneous permanent or perpetual utility easements as may be necessary to facilitate the beneficial

development of their respective properties, and to enter into one or more reciprocal easements for the

purpose of facilitating temporary construction activities such as staging and grading along the shared

boundaries of the School Site and the remainder of Owner’s Land. The requesting party shall furnish to

the other appropriately detailed plans and specifications relating to any such request for the affected

party’s review and consent, which consent will not be unreasonably conditioned or withheld.

(c) After execution of this MOU, each party shall duly execute and deliver to the other any

additional documents and instruments which such other may reasonably determine are necessary to

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further assure to the other the consummation of the promises and covenants contemplated herein,

without additional expense to the party requesting such items, including specifically, but without

limitation, the granting and delivery of the deeds and easements as set forth herein above.

6. NON-HAZARDOUS AND INTERIM USE AND CONDITION. Owner shall obtain prior written

consent from BOE in the event that, prior to conveyance of the School Site to BOE, Owner intends to

implement interim non-toxic or non-hazardous uses of the School Site (prior to its conveyance to BOE)

that could impact later development of the School Site by BOE, e.g. stockpiling construction materials,

removal of soil or interim recreation uses. BOE’s consent will not be unreasonably withheld,

conditioned or delayed in the exercise of commercially reasonable standards. BOE consent shall be

required for any uses which impact the physical condition of the School Site. Owner shall deliver the

School Site to BOE free of hazardous or toxic waste as defined under applicable environmental laws and

regulations.

7. PERMITS AND DEVELOPMENT APPROVALS. Except as otherwise required of Owner for the

development and construction of the Project, the construction of the Proposed Internal Connection and

the Secondary School Site Access Road, and the subdivision of the School Site for conveyance to BOE by

reference to the Plat and conveyance by Owner of the Widening Strip to the County, BOE shall apply for

and obtain at its sole cost and expense all permits, approvals and/or other entitlements required by

Applicable Governmental Authorities or by any other regulatory body or quasi-public body, if any, in

connection with the School Site. Notwithstanding any other provision of this MOU, after Owner’s fee

simple conveyance of the School Site pursuant to BOE Conveyance Approval, BOE shall have all rights

and sole discretion as to the development and future use of all aspects of School Site.

8. MUTUAL MAINTENANCE. Owner and its successors and assigns will have, retain and/or assume

the obligation for the perpetual maintenance and repair of the Project (including but not limited to

regular snow and ice removal, mowing, weeding, and repaving) and all improvements located thereon,

exclusive of the School Site after its conveyance to BOE pursuant to BOE Conveyance Approval, and

including but not limited to any stormwater facilities and FRO easement areas serving the Project and/or

the School Site, the pedestrian pathway described in paragraph 2.A.1(b) of this MOU, the Proposed

Internal Connection and the Secondary School Site Access Road, and shall not hold BOE responsible for

such maintenance. After its conveyance in accordance herewith, BOE will assume the obligation for the

perpetual maintenance of the School Site, including but not limited to any stormwater quality facilities

located thereon and shall not hold Owner responsible for such maintenance.

9. AUTHORITY

(a) Owner is a limited liability company duly organized and validly existing and in good

standing under the laws of the State of Maryland, and is duly qualified to do business in the State of

Maryland and to enter into this MOU and undertake the obligations provided for herein. Owner is the

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fee simple owner of Owner’s Land and has the full and unrestricted lawful power and authority to enter

into and carry out the terms of this MOU or other MOU contemplated herein. The execution, delivery

and performance of this MOU and any other agreement contemplated herein and the consummation of

the transactions contemplated hereby and thereby have been or will be as of the Effective Date, duly

authorized and approved by all requisite action, as the case may be, and this MOU and all other MOUs

contemplated herein, documents contemplated hereby or thereby, when duly executed and delivered,

will each constitute a valid and binding MOU of Owner, enforceable in accordance with its terms. Owner

warrants and represents to BOE that there are no lien or other interest holders in the title to the

Owner’s Land that have not joined in this MOU.

(b) BOE is an instrumentality of the State of Maryland and has the full and unrestricted

lawful power and authority to enter into and carry out the terms of this MOU, subject, however, to any

required approvals of the State of Maryland. The execution, delivery and performance of this MOU and

the consummation of the transactions contemplated hereby and thereby have been duly authorized and

approved, and this MOU and any and all other agreements, documents and instruments contemplated

hereby or thereby, when, following appropriation of necessary State funds to BOE in accordance with

the terms of this MOU, each will constitute a valid and binding agreement of BOE, enforceable in

accordance with its terms. For purposes of this MOU and the fulfillment of all terms, provisions,

conditions and agreements set forth herein, BOE shall also include and incorporate Frederick County

Public Schools, as relevant and applicable.

10. USE OF WORDS AND PHRASES. Use of the singular shall include the plural and use of the plural

shall include the singular as appropriate. Where this MOU requires the performance of obligations, such

performance, unless otherwise stated, may be performed by the party or its contractor or agent on its

behalf.

11. CONSTRUCTION OF DOCUMENT. All Parties to this MOU are represented by counsel and this

MOU reflects input from both Parties. Therefore, in the event of a dispute over, or any ambiguity of the

terms of this MOU, the Parties agree that common law rules of construction in favor of one party or

against another party shall not apply.

12. WAIVER AND NON-MERGER. Waiver of any requirements, conditions or contingencies of this

MOU by any Party may only be granted by the waiving Party pursuant to a formal written waiver

executed by the waiving Party. Failure of any Party to exercise any right or remedy hereunder shall not

impair any of its rights nor be deemed a waiver thereof and no waiver of any of its rights shall be

deemed to apply to any other such rights, nor shall it be effective unless in writing and signed by the

waiving Party. The covenants and warranties of the Parties contained in this Agreement shall survive

conveyance and recording of the deed for the School Site.

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13. MUTUAL INDEMNIFICATION. Owner and BOE agree to mutually indemnify and save harmless,

the Parties’ Representatives from and against all liabilities, actions, damages, claims, demands,

judgments, losses, costs, expenses, liens, encumbrances, reasonable attorneys’ fees, and the costs in

any suit, including appeals, arising out of this MOU, the exercise of any rights provided for in the MOU,

including but not limited to arising out of the development of the School Site and/or as a result of

Parties’ Representatives presence on, access to, or activities on or about the School Site, including,

without limitation, any claims arising or alleged to arise from the joint negligence of Owner and BOE.

14. NO PARTNERSHIP OR JOINT VENTURE. It is mutually understood and agreed that nothing

contained in this MOU 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 by or between BOE and Owner or as constituting Owner as the agent or

representative of BOE for any purpose or in any manner under this MOU, it is understood and agreed

that Owner is a separate entity.

15. NOTICE. A notice or communication under this MOU by or between BOE and Owner shall be

sufficiently given or delivered if dispatched by either (a) certified mail, postage prepaid, return receipt

requested, (b) nationally recognized overnight delivery service, or (c) hand-delivery (if receipt is

evidenced by a signature of the addressee or authorized agent), and addressed:

(a) in the case of a notice or communication to Owner, as follows:

RBG Family LLC

Attn: Alfred M. Rankin, Jr., Manager

5875 Landerbrook Drive, Suite 300

Mayfield Heights, Ohio 44124-4017

With a copy to:

Bruce N. Dean, Esquire

Linowes and Blocher LLP

8 West Third Street

Frederick, Maryland 21701

Telephone: (301) 620-1175

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(b) In the case of a notice or communication to BOE, as follows:

Frederick County Board of Education

191 South East Street

Frederick, Maryland 21701

Telephone: (301) 696-6850

Attention: Director of Facilities Services

Notices may be addressed to such other address in respect to any of the foregoing Parties as

that party may, from time to time, designate in writing, dispatched as provided in this Paragraph.

All notices and approvals required in this MOU must be in writing to bind the submitting or

receiving party.

As provided in paragraph 3(a) of this MOU, 24 hours’ notice of intended entry upon the School

Site or Owner’s Land may be provided by electronic mail.

16. EXECUTED IN MARYLAND. This MOU has been executed by BOE and Owner in the State of

Maryland.

17. CONFLICTS OF INTEREST. No member, official, representative, or employee of BOE or Owner

shall take any action regarding this MOU, the Project or any MOUs relating to either which conflicts

with, or is prohibited by, any ethical requirements to which they are subject.

18. TITLES OF PARAGRAPHS AND SUBPARAGRAPHS. Any titles of the several parts, sections,

subsections, paragraphs and subparagraphs of this MOU are inserted for convenience of reference only

and shall be disregarded in construing or interpreting any of its provisions.

19. COUNTERPARTS. This MOU may be executed in multiple counterparts, each of which shall be

deemed to be an original, and all such counterparts shall constitute one and the same instrument.

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20. ANCILLARY DOCUMENTS AND FURTHER ASSURANCES. BOE and Owner shall execute such

further assurances and shall execute such additional documents in form and content reasonably

acceptable to the Parties and as are necessary to effectuate the intentions of this MOU or to offer

further assurances with respect to such matters as the Parties may reasonably require provided that the

terms of the MOU are not thereby changed.

21. AMENDMENTS. Any amendment to this MOU must be executed in writing and, except as

otherwise expressly provided in this MOU, with the same formality as this MOU.

22. INCORPORATION INTO MOU. The recitals to this MOU, as well as any exhibits attached to this

MOU, are hereby incorporated in this MOU and made a part hereof by this reference.

23. STATE LAW. This MOU shall be interpreted in accordance with the laws of the State of

Maryland.

24. INVALIDITY OF PARTICULAR PROVISIONS. If any term, covenant, condition, or provision of this

MOU, or its application to any person or circumstance shall, at any time or to any extent, be held to be

invalid or unenforceable, then the balance of the MOU shall (except to the extent such result materially

changes the obligations or expectations of the Parties under the terms of this MOU) not be affected

thereby, and under such circumstances each term, covenant, condition, and provision of this MOU shall

be valid and enforced to the fullest extent permitted by law.

25. COMPLIANCE WITH LAWS. BOE and Owner shall, at all times, be subject to all applicable laws

pertinent hereto.

26. EFFECTIVE DATE. The “Effective Date” of this MOU shall be the date upon which this MOU has

been approved and executed by both BOE and Owner and shall be the date inserted in the heading on

Page 1 of this MOU.

27. RECORDATION/BINDING EFFECT. This MOU will be recorded by Owner at its sole expense,

among the Land Records within five (5) days after its Effective Date. All of the covenants, conditions and

obligations contained in this MOU shall be binding upon, and inure to the benefit of the respective

successors and assigns of BOE and Owner. The obligations of Owner to BOE shall survive conveyance of

the deed for the School Site.

28. ENTIRE UNDERSTANDING. This MOU expresses the entire understanding by and between BOE

and Owner with respect to the matters set forth herein and no Party shall be bound by any terms,

covenants, or agreements not herein contained.

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[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, BOE and Owner have caused this MOU to be duly executed as of the

date first above written.

WITNESS:

RBG FAMILY LLC

By: __________________________

Alfred M. Rankin, Jr., Manager

BOARD OF EDUCATION OF FREDERICK COUNTY,

MARYLAND

By: _____________________________

Name: _______________________

Title: ________________________

APPROVED FOR FORM AND LEGAL SUFFICIENCY

By: ____________________________________

David A. Severn, BOE Attorney

Date: _______________________________

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STATE OF MARYLAND, CITY/COUNTY OF FREDERICK

On this _______ day of _______, 2014, before me, the undersigned officer, personally appeared

__________________, who acknowledged herself to be the President of the Board of Education of

Frederick County, a body corporate and politic of the State of Maryland, and that she, as such President,

being authorized so to do, executed the foregoing instrument for the purposes therein contained, by

signing the name of the corporation by herself as President.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

(SEAL)

Notary Public

My Commission Expires:

***

STATE OF OHIO, COUNTY OF ___________

On this _______ day of ____, 2014, before me, the undersigned officer, personally appeared

Alfred M. Rankin, Jr., who acknowledged himself to be the Manager of RBG FAMILY LLC, and that he, as

such Manager, being authorized so to do, executed the foregoing instrument for the purposes therein

contained, by signing the name of the aforesaid entity by himself as Manager.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

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(SEAL)

Notary Public

My Commission Expires:

ATTORNEY’S CERTIFICATION

This instrument has been prepared under the supervision of the undersigned, an Attorney duly

admitted to practice before the Court of Appeals of Maryland.

Bruce N. Dean, Attorney

**L&B 3172140v2/12135.0001

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EXHIBIT A

(LEGAL DESCRIPTION)

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EXHIBIT B

(SCHOOL SITE DETAIL)

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EXHIBIT C

(AMENDED PHASE I PLAN) **L&B 3172140v2/12135.0001