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Rspd Core Agreement (00455906-10)

Rspd Core Agreement (00455906-10)

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04/06/2014

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Seyfarth Shaw Revisions 5/4/12 Version 10

_____________________________________________________________________________________ Space above this line for recorder’s use REYNOLDS STREET PARKING DECK CONSTRUCTION, OPERATING AND RECIPROCAL EASEMENT AGREEMENT

THIS REYNOLDS STREET PARKING DECK CONSTRUCTION, OPERATING AND RECIPROCAL EASEMENT AGREEMENT (this “Agreement”) is made this ___ day of _________, 2012, by and between AUGUSTA, GEORGIA (“City”) and 933 BROAD INVESTMENT CO., LLC, a Georgia limited liability company (“Developer”). RECITALS A. Developer is the owner of that certain improved parcels of land described on Exhibit “A” attached hereto and by this reference made a part hereof, together with all improvements located thereon (the “Developer Property”). City is the owner of (i) that certain tract of land described on Exhibit “B” attached hereto and by this reference made a part hereof together with all improvements located thereon (the “WAGT Tract”); (ii) that certain tract of land described on Exhibit “C” attached hereto and by this reference made a part hereof, together with all improvements located thereon (the “Jackson Tract”); and (iii) that certain improved parcel of property described on Exhibit “D” attached hereto and by this reference made a part hereof, together with all improvements located thereon (the “Air Rights Parcel” and together with the WAGT Tract and the Jackson Tract, referred to as the “City Property”) . The Air Rights Parcel is generally the block of space occupied by the Parking Deck, extending vertically from the roof of the first floor of the Parking Deck to eight feet above the finished floor elevation of the six (6th) floor of the Parking Deck. City has constructed on the Air Rights Parcel and the portion of the Developer Property located directly underneath the Air Rights Parcel a six (6) story parking deck (the “Parking Deck”). The Developer Property contains additional surface parking (the “Developer Surface Parking Areas”) not located within the Parking Deck. In connection with transactions related to the Augusta Convention Center, but for no monetary consideration, Developer conveyed the Air Rights Parcel to City. Both before and after the construction of the Parking Deck, the general functionality and utility to Developer of the

B.

C.

D.

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Developer Property are for surface parking for its tenants. The Parking Deck was constructed by City for the benefit of City, and the benefits of the Parking Deck to Developer are small and incidental (i.e., additional security, covered parking, and better aesthetics). Automated gates and a staffed toll booth are solely for the benefit of City in the management of its portion of the Parking Deck and provide only an incidental benefit to Developer. In connection with the Management Agreement, Developer’s affiliate has agreed to certain cost sharing and has agreed that City may use parking spaces located on the Developer Property without charge after business hours. Such agreements are part of a bargained for exchange made in connection with the Management Agreement but have no applicability outside of the Management Agreement. Accordingly, the Parties acknowledge that Developer should have no responsibility for maintaining the Parking Deck structure or sharing of costs for operation of the Parking Deck and should have no obligation to allow City to use the parking spaces located on Developer Property after hours, unless provision for the same is made in the Management Agreement. E. City and Developer desire to set forth their respective obligations and rights with respect to the Developer Property, the City Property, and the Parking Deck, including but not limited to those rights and obligations related to operation, maintenance, support, access, and insurance as set forth in this Agreement. AGREEMENT In consideration of the premises and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and Developer, intending to be legally bound, agree as follows. ARTICLE I DEFINITIONS Section 1.1. following meanings. Definitions. As used in this Agreement, the following terms shall have the

“Access Easement Areas” shall mean those areas located on the City Property and the Developer Property shown as cross-hatched on Exhibit “E” attached to this Agreement. “Air Rights Parcel” shall have the meaning set forth in the recitals of this Agreement. “Agreement” shall have the meaning set forth in the opening paragraph of this Agreement. “City” shall have the meaning set forth in the opening paragraph of this Agreement and its successors in title to the City Property. “City Property” shall have the meaning set forth in the recitals of this Agreement. “Developer” shall have the meaning set forth in the opening paragraph of this Agreement, and its successors in title to the Developer Property or any part thereof. “Developer Property” shall have the meaning set forth in the recitals of this Agreement.

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“Developer Surface Parking Areas” shall have the meaning set forth in the recitals of this Agreement. “Ground Floor Ramp” shall mean that ramp connecting the ground floor of the Parking Deck to the second floor of the Parking Deck and labeled as such on the schematic Plans and Specification attached as Exhibit “H” to this Agreement. The Ground Floor Ramp is also shown on the Plat of the Reynolds Street Parking Deck referenced on Exhibit “A” to this Agreement and is depicted as the area on the “ramp” where the parking spaces are portrayed with dashed lines. “Jackson Tract” shall have the meaning set forth in the recitals of this Agreement. “Landscape Areas” shall mean those areas located on the Developer Property upon which City has landscaped and shown as cross-hatched on Exhibit “G” attached to this Agreement. “Manager” shall mean any person or entity managing the City Property. “Management Agreement” shall mean the agreement whereby a Developer, its affiliate, or a third party manages the portion of the Parking Deck located on the City Property. “Parking Deck” shall have the meaning set forth in the recitals of this Agreement and shall include all structural portions thereof and the surfaces of the ground floor and all floors thereof. “Party” shall mean City or Developer individually, and “Parties” shall mean City and Developer collectively. “Plans and Specifications” shall mean the final plans and specification for the Parking Deck, full copies of which are on file with City and Developer. Schematics of the Plans and Specifications are attached as Exhibit “H” to this Agreement. In the event reconstruction is necessary and the original full Plans and Specifications cannot be located, the Parties shall work together in good faith to engage an engineering firm to produce a new set of Plans and Specifications for re-construction of the Parking Deck in a first-class manner, in compliance with all applicable building codes and standards, in substantial accordance with the schematic plans and specifications attached to this Agreement, whereupon such plans and specifications shall become the Plans and Specifications. “Property” or “Properties” shall mean the Developer Property and the City Property, combined. “Security Deed” shall mean, collectively, that Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement from Developer to Wachovia Bank, N.A. (n/k/a Wells Fargo Bank, National Association) recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia on October 14, 2005, in Book 1019, page 1326, and the related Assignments of Leases and Rents, all related UCC financing statements, and all amendments and modifications thereto. “Standard” shall mean the first-class standards of construction, operation, maintenance and repair of Marriott Corporation, reasonably interpreted to take into account differences between a hotel and a Parking Deck. “Term of this Agreement” shall mean the period of time commencing on the date of this Agreement and continuing in perpetuity for so long as the Parking Deck is in existence and shall include the period of time following any casualty with respect to the Parking Deck for so long as either Party has

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the right to rebuild the Parking Deck or the right to require the other Party or any person or entity to rebuild the Parking Deck. “Traffic Control Areas” shall mean those areas located on the Developer Property shown as cross-hatched on Exhibit “F” attached to this Agreement. “WAGT Tract” shall have the meaning set forth in the recitals of this Agreement. “Wells Fargo” shall mean Wells Fargo Bank, National Association, successor to Wachovia Bank, National Association, the holder of the Security Deed and the loans secured thereby.

ARTICLE II EASEMENTS Section 2.1. Access Easements. Developer hereby grants to City non-exclusive easements in perpetuity over the Access Easement Areas located on the Developer Property for vehicular and pedestrian ingress and egress to and from the public streets and sidewalks to the City Property. Developer retains the right to relocate or modify the Access Easement Areas existing on the Surface Parking Areas so long as such relocation or modification does not unreasonably hinder City’s access to the City Property and Parking Deck. City hereby grants to Developer non-exclusive easements in perpetuity over the Access Easement Areas located on the City Property for vehicular and pedestrian ingress and egress to and from the public streets and sidewalks to the Developer Property. City retains the right to relocate or modify the Access Easement Areas existing on the City Property so long as such relocation or modification does not unreasonably hinder Developer’s access to the Developer Property. Section 2.2. Landscaping Easements. Developer hereby grants to City non-exclusive easements in perpetuity over the Landscape Areas located on the Developer Property for the installation, use, replacement, and maintenance of grass, shrubs, flowers, trees, and other landscaping material, together with a non-exclusive easement in perpetuity over the driveways on the Developer Property for vehicular and pedestrian access to the Landscaping Areas. With the prior written approval of City, which shall not be unreasonably withheld or conditioned, Developer retains the right to relocate or modify the Landscape Areas in the modification or development of the Developer Property so long as such modification or development does not materially decrease the general aesthetics of the site. Section 2.3. Support and Utility Easements. The Parties acknowledge that the improvements on the Developer Property and the Air Rights Parcel share common footings and supports and that utility lines serving the Property may cross the City Property and the Developer Property. Each of the Parties hereby grants to the other Party a non-exclusive and perpetual easement over and under its respective Property for the construction, use, repair, and maintenance of supports and utility lines (electric, communication, water, sewer, storm water, and gas, to the extent now or hereafter desirable in connection the use of the respective Properties) in accordance with the Plans and Specifications, provided that the manner of construction, use, repair, and maintenance of such supports and utilities shall be in accordance with generally accepted engineering and construction practice for improvements of such type and so as not to impair the structural integrity of the other Party’s improvements. The exercise of easement rights under this section by either Party shall be conducted in such a manner as will minimize interference with the conduct of business by the other Party. In the event either Party shall in the future desire to install additional utilities for the benefit of its Property and such installation impacts the other Party’s Property,

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the Party desiring to install said utilities shall install the same at its sole cost with the advance written approval and cooperation of the other Party, such cooperation and approval not to be unreasonably withheld or delayed, and the requesting Party shall return all disturbed Property to its substantially predisturbed condition promptly in a first-class manner. Section 2.4. Easements in favor of City for Toll Booth and Traffic Control Equipment. Developer hereby grants to City non-exclusive easements in perpetuity over the Traffic Control Areas for occupancy, use, maintenance, and repair of a toll booth and traffic control equipment in order to control access to the Parking Deck. The use of the toll booth and traffic control equipment is subject to other provisions of this Agreement and the Management Agreement. Section 2.5. Easements in favor of Developer for Parking. City hereby grants to Developer an exclusive easement in perpetuity over the WAGT Tract for parking of passenger and commercial vehicles and a non-exclusive easement in perpetuity over the WAGT Tract for pedestrian and vehicular ingress and egress to and from the public streets and sidewalks to the Developer Property. Developer shall have the right to maintain, repair, and upgrade the WAGT Tract for the parking and access purposes set forth in this section. City acknowledges and agrees that its obligation to provide WAGT Television, Inc. with a permanent easement for parking pursuant to that Parking Easement Agreement dated November 15, 2010, and recorded with the Office of the Clerk of Superior Court for Augusta Richmond County, Georgia on May 18, 2011, in Book 1301, page 2188, shall be met by the use of parking spaces in the Parking Deck located on the City Property and not on the WAGT Tract or any Developer Property. Section 2.6. Easements in favor of Developer for Parking on Ground Floor Ramp. City and Developer intend that Developer have fee simple title to and exclusive use of the parking spaces located on the Ground Floor Ramp. Because City owns the structure of the Parking Deck and because a portion of the Ground Floor Ramp is situated above the earth and is considered part of the structure, City hereby grants to Developer an exclusive easement in perpetuity over any portion of the Ground Floor Ramp outside of the Access Easement Areas for parking of passenger and commercial vehicles. Because of the configuration of the Parking Deck, it is possible that a portion of the Ground Floor Ramp may extend into the Air Rights Parcel owned by City. Accordingly, City hereby grants to Developer an exclusive easement in perpetuity over any portion of the Ground Floor Ramp consisting of parking spaces and extending into the Air Rights Parcel for parking of passenger and commercial vehicles. City hereby grants to Developer a non-exclusive easement in perpetuity over the access drive located on Ground Floor Ramp for pedestrian and vehicular ingress and egress to and from the Developer Property and said parking spaces located on the Ground Floor Ramp. City hereby grants to Developer non-exclusive easements in perpetuity over all ramps and drives within the City Property necessary to allow ingress and egress to and from the parking spaces on the Ground Floor Ramp pursuant to the designed traffic flow patterns within the Parking Deck. Section 2.7. Binding Effect; Extension of Easements to Invitees. The Parties shall have the right to extend to their tenants, customers, business guests and invitees the benefit of the rights and easements established in this Agreement, but no such tenant, customer, business guest or invitee shall by virtue thereof be deemed to have acquired any interest whatsoever in the City Property or the Developer Property or any part thereof. The benefits and burdens of the easements and restrictions created in this Agreement shall run with the land and shall be binding upon and inure to the benefit of the owners of the City Property and the Developer Property (and all subdivided portions thereof) and their respective heirs, executors, successors-in-title, tenants, and assigns, and all those holding under any of them. The easements, restrictions and obligations contained in this Agreement shall be unaffected by any change in the ownership of any property covered by this Agreement or by any change of use, demolition,

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reconstruction, expansion or other circumstances, except as specified herein. Each of the rights created hereunder may be enforceable in a court of equity by the owner of any property covered by this Agreement or by Developer pursuant to retained rights and obligations under this Agreement in the event of a conveyance of all or any part of the Developer Property as contemplated in Section 6.10 below. All easements and other rights conveyed by City to Developer within this Agreement shall be for the benefit of the Developer Property. It is the express intent of the parties hereto that the easements granted herein shall not, at any time, merge by operation of law into any owner’s title or interest in any parcel, but that the easements granted herein shall remain separate and distinct rights and estates in land unless the owner(s) of all affected parcels specifically evidence their intent by mutual agreement in writing to extinguish any such easement. It is further expressly provided that the acquisition hereafter by any other party (including, without limitation, a present or future mortgagee of any parcel or any portion thereof) of an ownership interest (in fee, leasehold, or otherwise) shall not operate, by merger or otherwise, to extinguish, diminish, impair, or otherwise affect any easement granted herein, which easements shall remain separate and distinct and estates in land. Section 2.8. Perpetual Easements. The easements granted under this Section shall continue so long as the Parking Deck continues to exist or is rebuilt following a casualty. The Parties expressly acknowledge and agree that the purpose of this Agreement is the grant, conveyance and establishment of the easements, rights and privileges set forth herein, and none of the terms or provisions of this Agreement shall be or be deemed to be “covenants restricting land to certain uses” for purposes of O.C.G.A. §44-5-60, or any similar law or statute, and each Party (knowingly, willingly and upon the advice of legal counsel) expressly forever waives, releases and discharges any right that either Party now has or ever may have to claim or assert in any legal or other circumstances that any of the easements or other terms or provisions of this Agreement are in any way covered or limited by said section or any similar law or statute. Section 2.9. Reservation of Rights. Developer, as the owner of the Developer Property, hereby expressly reserves for itself, its successors and assigns, all rights and privileges incident to the ownership of the fee simple estate of the Developer Property which are not inconsistent with the rights and privileges herein granted. Specifically, Developer shall have the right to make non-structural alterations or modifications to the portion of the Parking Deck located on the Developer Property, including its façade (e.g., attaching signage, painting, or striping of the floor); provided, however, Developer shall not materially alter or modify the exterior of the Parking Deck without the prior written approval by City of the plans for such alteration or modification, which approval shall not be unreasonably withheld. Notwithstanding the preceding provision, Developer may develop the first floor of the Parking Deck into retail spaces without the approval of City, so long as the modifications do not materially impede traffic flow to the City Property or affect the structural integrity of the Parking Deck. In the event that Developer’s alterations or modifications to the Parking Deck cause damage to the Parking Deck, Developer shall be responsible to repair the same to the substantially pre-damaged condition. Furthermore, Developer retains the right to develop or modify the Developer Property (and to modify the location of the Access Easement Areas, the Traffic Control Areas, and the Landscape Areas), subject to the prior written approval of City, which approval shall not be withheld so long as such development or modification does not materially decrease the general aesthetics of the site, does not unreasonably hinder City’s access to the City Property and Parking Deck, and does not impair the structural integrity of the Parking Deck.

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ARTICLE III CONSTRUCTION AND TITLE

Section 3.1. Construction of the Parking Deck. Pursuant to prior agreements, City has constructed the Parking Deck in substantial accordance with the Plans and Specifications. The Parking Deck is acceptable to City and Developer in all respects. Section 3.2. City. Section 3.3. Expansion of the Parking Deck. Developer and City have agreed that City may expand the Parking Deck to the south of the existing Parking Deck (i.e., between the existing Parking Deck and Jones Street). In the event City so desires to expand the Parking Deck, Developer shall convey to City property necessary for expansion of the Parking Deck (or shall modify its easements under this Agreement with respect to the WAGT Tract) and shall amend this Agreement to provide for necessary support, access, operation and maintenance of the expanded parking deck, subject to the following conditions: (i) Developer shall retain title to the surface parking underneath of the expanded parking deck and shall only convey “air rights” in a similar manner to the rights existing under the current property ownership and this Agreement, (ii) the construction shall be of equal quality and aesthetics to the current Parking Deck, and the plans and specifications therefor shall be acceptable to Developer and any mortgagee, in their reasonable discretion, (iii) construction shall be made under the joint supervision of City and Developer in a manner similar to the management of construction of the existing Parking Deck (i.e., Developer shall have the right to inspect and review and object to draw requests prior to payment of the same), (iv) access to and functionality of Developer’s remaining property or easement rights shall not be unreasonably impaired, and agreements with respect to the expanded parking deck shall be substantially similar to the agreements in this Agreement, and (v) Developer shall retain sufficient property or easements, whether on the ground or upper levels of the expanded parking deck, so that Developer shall not suffer reduction in the number of parking spaces owned, or to which Developer has rights via easements, by Developer. Title to the Parking Deck. The structure of the Parking Deck shall be owned by

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ARTICLE IV OPERATION AND MAINTENANCE OF PARKING DECK

Section 4.1. Maintenance and Repair of the Property. City shall, at its sole cost and expense, repair, maintain, and clean the structure of the Parking Deck (including all parking surfaces located within the Parking Deck) and the Landscape Areas to the Standard. Otherwise, each Party shall, at its sole cost and expense, maintain its respective Property to the Standard. Notwithstanding the foregoing, during any period when both Developer and City consent to a different cost sharing arrangement pursuant to a Management Agreement, the maintenance and repair of the Parking Deck shall be made in accordance with the Management Agreement. Given that each Party has a significant investment in the Parking Deck and the property upon which the Parking Deck is located, the Parties acknowledge that each Party has an important interest in insuring that the Parking Deck is maintained in accordance with the Standard in perpetuity. Accordingly, this Agreement, and particularly this section of this Agreement, may be enforced by either Party by specific performance or otherwise. Section 4.2. Operation of Parking Deck. No barricades, curbs, gates, or other obstacles shall be erected which block or prohibit the free flow of traffic through the entrances, exits, ramps and driveways within the Property. However, City, in its sole discretion and for its benefit, may staff and operate a toll booth and/or automated traffic control devices in connection with the operation of its portion of the Parking Deck (either directly or through a Management Agreement). In the absence of a Management Agreement approved by Developer providing for a contrary agreement, Developer shall have no obligation to share in the costs of operating the Parking Deck, and Developer shall have the right to prohibit the unauthorized parking of vehicles on its Property, and the easement areas granted hereunder, and the WAGT Tract by all means allowed by law (including towing of unauthorized vehicles). In the event Developer or its affiliate manages the Parking Deck pursuant to a Management Agreement, the manager under the Management Agreement shall be responsible for all vehicle towing. In the event City elects to control access to the Parking Deck, City shall provide Developer with key cards or other acceptable devices to allow Developer’s tenants, licensees and invitees efficient access to the Developer Property, and the easement areas granted hereunder, and shall provide a reasonable and efficient method for Developer’s tenants, licensees and invitees to access the Developer Property, and the easement areas granted hereunder, through the toll booth system, all at no cost to Developer. Nothing herein shall prohibit temporary closing of the Parking Deck or Property as may be necessary for the cleaning, repair and maintenance of the same as required from time to time, so long as such activities are conducted at reasonable times and in a reasonable manner with prior coordination with the other Party. Each Party shall have the exclusive right to set or cause to be set the rents for use of the parking spaces within its respective Property. Each Party shall operate its respective improvements in compliance with the Standard and with all applicable governmental requirements, laws, statutes, regulations and/or ordinances and shall keep in full force and effect at all times all governmental permits and licenses required for the use and operation of such improvements. Section 4.3. Taxes. Developer shall be responsible for all ad-valorem taxes levied against the Developer Property. City shall be responsible for all ad-valorem taxes levied against the City Property. Section 4.4. Insurance by City. City shall either self-insure, self-fund or provide the following insurance meeting the following requirements:

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General Liability Insurance. During the Term of this Agreement, City shall, at its sole cost and expense, carry comprehensive general liability property insurance, including contractual liability, personal and bodily injury, and property damage insurance, covering activities relating to the Parking Deck, with a combined single limit in an amount sufficient to protect City and Developer, but in no event will such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. Such insurance may contain a loss deductible provision of not more than $100,000.00, which loss deductible amount may be adjusted upward annually by the percentage increase in the Consumer Price Index for all urban consumers (CPI-U) (All Items 1982-84=100) for the preceding calendar year. Developer and, if requested, Developer’s mortgage lender, shall be named as an additional insured under such insurance. City shall provide Developer with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of operation of the Parking Deck. City’s insurance shall contain a clause stating that there shall be no reduction, cancellation, or non-renewal of coverage without giving Developer and Developer’s mortgage lender thirty (30) days prior written notice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and not contributory to any similar insurance carried by Developer, and shall contain a severability of interest clause. Property Insurance. During the Term of this Agreement, City shall, at its sole cost and expense, procure and keep in effect fire and extended coverage for the Parking Deck and all personal property located thereon, including rent loss or business interruption coverage for periods of no less than twelve (12) months, written on an All-Risk Endorsement and Replacement Cost basis, in amounts at no time less than the total replacement cost therefor. Such policy referred to above shall name City and Developer as loss payee and additional insureds, as their interest may appear. During any period of construction, such property insurance shall be provided, at City’s sole cost and expense, through a builder’s risk policy. City shall provide Developer with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of the Term of this Agreement. Upon completion of construction, City shall provide Developer with such a certificate of permanent fire and extended property insurance. Section 4.5. Insurance by Developer. Developer shall either self-insure, self-fund or provide the following insurance meeting the following requirements: General Liability Insurance. During the Term of this Agreement, Developer shall, at its sole cost and expense, carry comprehensive general liability property insurance, including contractual liability, personal and bodily injury, and property damage insurance, covering activities relating to the Parking Deck, with a combined single limit in an amount sufficient to protect Developer and City, but in no event will such insurance be in an amount less than a combined single limit of $3,000,000 per occurrence. City shall be named as an additional insured under such insurance. Developer shall provide City with a certificate of insurance evidencing such coverage no later than thirty days prior to the commencement of operation of the Parking Deck. Developer’s insurance shall contain a clause stating that there shall be no reduction, cancellation, or non-renewal of coverage without giving City thirty (30) days prior written notice. Such insurance shall also be endorsed to provide that the insurance shall be primary to and not contributory to any similar insurance carried by City, and shall contain a severability of interest clause. Property Insurance. In recognition of the fact that the Parking Deck structure was built for the sole purpose of supporting and housing the upper decks for the benefit of City and that Developer’s interest in the Developer Property is merely a surface parking lot requiring no vertical improvements, Developer shall be under no obligation to insure any portion of the Parking Deck for casualty. Section 4.6. Policies and Endorsements. All insurance described in this Article may be obtained by endorsement or equivalent means under blanket insurance policies, provided that such

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blanket policies substantially fulfill the requirements specified herein. Where permitted, all insurance provided under this Article shall be carried in the name of Developer, City, the owner of any fee or leasehold interest in the Parking Deck or any portion thereof, and the holder of any security deeds covering the Parking Deck or any portion thereof, if any; and any losses thereunder shall be payable to the parties as their respective interests may appear. The party procuring such insurance shall deliver to the other party certificates of insurance with respect to all policies so procured, including existing, additional and renewal policies and, in the case of insurance about to expire, shall deliver certificates of insurance with respect to the renewal policies not less than ten (10) days prior to the respective dates of expiration. All policies of insurance provided under this Article shall, to the extent obtainable, have attached thereto an endorsement that such policy shall not be canceled or materially changed without at least thirty (30) days prior notice to Developer, City, any other fee or leasehold owner of any portion of the Parking Deck, and any holder of indebtedness secured by any portion the Parking Deck. Section 4.7. Waiver of Subrogation. City and Developer agree that with respect to any loss or claim which is covered by insurance then being carried or required to be carried by them under this Agreement, the party suffering such loss or claim and carrying or required to carry such insurance releases the other of and from any and all claims, defense costs and expenses with respect to such loss or claim, to the extent of available insurance proceeds. City and Developer further agree that each of their insurance policies shall provide for an appropriate waiver of subrogation reflecting this release. Section 4.8. Indemnification. Subject to the waiver of subrogation provisions in this Agreement, each Party shall indemnify and hold harmless the other Party, its subsidiaries, its affiliates, and their respective officers, directors, agents, and employees from and against any and all claims, liabilities, losses, damages to persons or property, costs, and expenses of any kind or character, including without limitation reimbursement of court costs, reasonable attorneys’ fees, interest, fees, and penalties, to the extent such liabilities are finally determined by a court of competent jurisdiction to have been the result of the acts, omissions, negligence, or misconduct of such indemnifying Party or its employees, contractors, agents, lessees, or invitees, in the use, operation, or maintenance of the Property. This section shall survive termination of this Agreement. ARTICLE V DAMAGE AND DESTRUCTION Section 5.1. Damage or Destruction of Parking Deck. In the event of damage to or destruction of all or any part of the Parking Deck, City shall, at its election, either (i) rebuild, replace and repair such damaged or destroyed improvements to the same condition and usefulness and to the same general appearance as existed immediately prior to such damage or destruction, or (ii) clear debris and raze the improvements as outlined below. Upon such damage or destruction, City shall notify Developer of its election within ninety (90) days. In the event City elects to rebuild, replace, or repair the Parking Deck, such reconstruction shall be completed as expeditiously as reasonably possible but no later than twelve (12) months following such damage and shall be performed in compliance with the requirements set forth with respect to the initial construction of such improvements. In the event City elects to clear the debris and raze the improvements, such work shall be completed as expeditiously as reasonably possible but no later than three (3) months following such damage and shall be performed in a first-class and workmanlike manner. Section 5.2. Clearing Debris from Razed Improvements. To the extent City does not elect to restore the Parking Deck destroyed or damaged by casualty, City shall promptly raze the entirety of the

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Parking Deck, clear away all debris and take all other action (including repaving) required by good constructions practice so that the area which had been occupied by the razed improvements will be compatible with the surrounding property and shall be aesthetically appropriate in accordance with the Standard. Section 5.3. Termination of this Agreement; Option to Re-Acquire the City Property. In the event City fails to rebuild after damage to the Parking Deck, this Agreement shall terminate upon the completion by City of its obligation to clear debris and raze the improvements as outline above. Upon such termination, Developer may develop the Developer Property in accordance with applicable laws. In such event, Developer shall have a perpetual option to acquire the City Property for its fair market value, as determined by an appraisal complying with the laws of Georgia with respect to the sale of government owned property. City shall reasonably cooperate with Developer in obtaining such appraisal and all necessary approvals for such conveyance of the City Property. ARTICLE VI MISCELLANEOUS Section 6.1. Breach. In the event of a breach or threatened breach of this Agreement, the parties shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach (including, without limitation, the right to obtain injunctive relief or specific performance). In the event such proceedings are instituted, the non-prevailing litigant shall pay the reasonable attorney’s fees of the prevailing litigant. It is expressly agreed that no breach of this Agreement shall result in a cancellation, rescission or termination of this Agreement or the easements and other rights and obligations created hereby. Section 6.2. Amendments. The terms, covenants, conditions, and provisions of this Agreement cannot be modified or added to except in writing signed by all Parties. Section 6.3. Time of Essence. Time is of the essence.

Section 6.4. Notices. All notices hereunder or required by law will be sent (a) via US Mail, postage prepaid, certified or registered mail, return receipt requested; or (b) via any nationally recognized commercial overnight carrier with provisions for a receipt, in either case addressed to the parties hereto at their respective addresses or numbers set forth below or as they will have theretofore specified by notice delivered in accordance herewith:

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In case of the City to: Augusta, Georgia City County Municipal Building 530 Greene Street Augusta, Georgia 30901 Attn: City Administrator In the case of Developer to: 933 Broad Investment Co., LLC One 10th Street, Riverfront Center Suite 340 Augusta, Georgia 30901 Attn: Mr. Paul S. Simon

With a copy to: Augusta, Georgia Legal Department 530 Greene Street Augusta, Georgia 30901 Attn: General Counsel With a copy to: Hull Barrett, PC 801 Broad Street, 7th Floor Augusta, Georgia 30901 Attn: Rand Hanna

Section 6.5. Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by the parties hereto. Section 6.6. Severability. If any provision of this Agreement or its application to any party or circumstances will be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so determined invalid or unenforceable, will not be affected thereby, and each provision hereof will be valid and will be enforced to the fullest extent permitted by law. Section 6.7. Computation of Time. The time in which any act under this Agreement is to be done shall be computed by excluding the first day and including the last day. If the last day of any time period stated herein shall fall on a Saturday, Sunday or legal holiday, then the duration of such time period shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sunday or legal holiday. Unless preceded by the word “business”, the word “day” shall mean a calendar day. The phrase “business day” or “business days” shall mean those days on which the Superior Court of Augusta-Richmond County, Georgia is located is open for business. Section 6.8. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia. Section 6.9. Waiver. The failure of either party to insist upon a strict performance of any of the terms or provisions of this Agreement or to exercise any option, right or remedy herein contained, shall not be construed as a waiver or as a relinquishment for the future of such term, provision, option, right or remedy, but the same shall continue and remain in full force and effect. No waiver by either party of any term or provision hereof shall be deemed to have been made unless expressed in writing and signed by such party. Section 6.10. Successors and Assigns. The provisions of this Agreement shall apply to, inure to the benefit of and bind the Parties and the respective successors and assigns thereof, including, without

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limitation, any mortgagee acquiring an interest in any portion of the Developer Property or the City Property or any improvements thereon by reason of foreclosure, deed or assignment in lieu of foreclosure or purchase at foreclosure sale; but any such mortgagee shall not incur or be required to assume any obligation under this Agreement unless and until such mortgagee has so acquired an interest in any portion of the Developer Property or the City Property or any improvements thereon, and then only such as may arise by operation of law by reason or privity of estate as limited by the provisions of this Agreement. Subject to the above, whenever in this Agreement a reference to any Party is made, such reference shall be deemed to include a reference to the heirs, executors, legal representatives, successors and assigns of such Party. It is expressly acknowledged and agreed by the Parties hereto that Developer may convey all or any portion of the Developer Property and retain from such conveyance the rights and obligations of Developer under this Agreement. Such retained rights and obligations of Developer may be further transferred, assigned or conveyed by Developer or financed and assigned by Developer as set forth in Section 6.16 below. Section 6.11. Force Majeure. Any party’s performance under this Agreement shall be suspended to the extent such party’s performance shall be delayed or hindered in or prevented from the performance of any act required by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, riots, terrorism, insurrection, war or other reason of a like nature not the fault of such party. Section 6.12. Third Party Beneficiaries. This Agreement shall not inure to the benefit of any third party except that this Agreement may be enforced by Wells Fargo as holder of the Security Deed. Section 6.13. Relationship of the Parties. Nothing contained herein shall be construed or interpreted as creating a partnership, joint enterprise or joint venture between or among the Parties. It is understood that the relationship between the parties is an arms-length one that shall at all times be and remain separate with respect to their interests in each tract. No Party shall have the right to act for or on behalf of another Party, as agent or otherwise, unless expressly authorized to do so by separate written instrument signed by the Party to be charged or bound. Section 6.14. Interpretation. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or other governmental or judicial authority by reason of such Party having or being deemed to have structured or dictated such provision. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular. Titles of Articles and Sections of this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement, and all references in this Agreement to Articles, Sections or Subsections thereof shall refer to the corresponding Article, Section or Subsection of this Agreement unless specific reference is made to the articles, sections or subdivisions of another document or instrument. Section 6.15. Management Agreement. The Parties acknowledge that the Management Agreement in effect on the date of this Agreement may shift responsibility for costs, operation, insurance, etc. between Developer (or its affiliate) and City. In the event the Parties agree to the terms of a Management Agreement with respect to the management of the Parking Deck (and such agreement shall be assumed if the Parties or their affiliates are parties to the Management Agreement), any conflicting terms of the Management Agreement shall control over this Agreement. Section 6.16. Financing - Limitations of Mortgagee Liability. Any Party may finance its Property subject to this Agreement, and, in conjunction therewith, may convey and/or assign (either absolutely or conditionally) all of its rights and interests under this Agreement to any mortgagee or lessee. This Agreement and the rights, interests and easements created hereunder shall be prior and superior to

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any such mortgage or lease of any portion of the Property. Any such mortgagee or lessee shall be liable for the performance of the mortgagor’s or lessee’s covenants and obligations hereunder only if and for so long as such mortgagee or lessee comes into and holds possession (or has a right to possession) of such mortgagee’s or lessee’s property, but upon any such transfer or further lease the transferee shall be subject to the terms of this Agreement. Except as specifically provided in this Agreement, no mortgagee shall have any personal or corporate liability with regard to any provision of this Agreement during the period of such mortgagee’s ownership or possession of any property encumbered hereby, any such mortgagee’s liability hereunder being limited to its interest in the property covered by such mortgage, any improvements erected thereon, and the rents and other income derived therefrom. Section 6.17. Status Reports. Recognizing that any Party may find it necessary from time to time to establish to third parties such as accountants, banks, mortgagees or the like, the then current status of performance hereunder, the Parties each agree, upon the written request of the other Party, made from time to time by notice as provided in this Agreement, to furnish promptly a written statement (in recordable form, if requested) on the status of any matter pertaining to this Agreement to the best of the knowledge and belief of the Party making such statement.

[EXECUTION ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed under seal effective the date and year first above written. Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal) Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal) 933 Broad Investment Co., LLC, a Georgia limited liability company By:________________________ Paul S. Simon As its President (Seal) Augusta, Georgia By:________________________ Its Mayor Attest:______________________ Its Clerk of Commission (Seal)

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CONSENT AND SUBORDINATION Wells Fargo Bank, National Association (“Wells Fargo”), the holder of the Security Deed and the indebtedness secured thereby, hereby consents to the foregoing Agreement and subordinates the Security Deed to the foregoing Agreement. Otherwise, the Security Deed shall remain in full force and effect. Executed under seal this ____ day of ___________, 2012.

Signed, sealed and delivered in the presence of: ________________________ Unofficial Witness ________________________ Notary Public (Notary Seal)

Wells Fargo Bank, National Association (Seal)

By:__________________________ Print Name: ___________________ Title: ________________________

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Schedule of Exhibits Exhibit “A” – Developer Property Exhibit “B” – WAGT Tract Exhibit “C” – Jackson Tract Exhibit “D” – Air Rights Parcel Exhibit “E” – Access Easement Areas Exhibit “F” –Traffic Control Areas Exhibit “G” –Landscape Areas Exhibit “H” – Schematic Plans and Specifications

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Exhibit “A” Developer Property All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as “Tract 3” containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. AND All those lots, tracts, or parcels of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as “Tract 4” containing 0.41 acre, more or less, and “Tract 4A” containing 0.01 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____. LESS AND EXCEPT the Air Rights Parcel, as defined on Exhibit “D” of this Agreement.

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Exhibit “B” WAGT Tract

All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as “Tract 1” containing 0.32 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.

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Exhibit “C” Jackson Tract

All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as “Tract 2” containing 0.07 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.

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Exhibit “D” Air Rights Parcel

The exclusive and perpetual right of possession and occupancy of, the exclusive and perpetual right to floor and to cover over and to build and construct over, in or upon the entire space or area situate at a height above a horizontal plane of 151.05 feet above mean sea level and below a horizontal plane of 216.10 feet above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark Elevation of 134.948 feet above mean sea level located at the Georgia Geodetic Monument #14-R-3 north 1,262,402.48, east 563,401.17 in the parkway on Greene Street between Fourth and Fifth Streets in the City of Augusta, Richmond County, Georgia, directly over and above the land described as follows: All that lot, tract or parcel of land situate, lying and being in the 87th G.M.D, Augusta, Richmond County, Georgia, being depicted as “Tract 3” containing 0.83 acre, more or less, on that certain Plat of the Reynolds Street Parking Deck for Augusta, Georgia; 933 Broad Investment Co., LLC; and Augusta, Georgia Land Bank Authority by John Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated February 2, 2012, and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat Cabinet ___, Slide _____ # ____.

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