HomeMy WebLinkAbout2012-06-28-Meeting Agenda
Commission Meeting Agenda
Commission Chamber
6/28/2012
5:00 PM
INVOCATION:
Fr. Jacek Szuster, Pastor, Church of the Most Holy Trinity Catholic Church.
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA.
Five (5) minute time limit per delegation
DELEGATIONS
A. Mr. Phil Lee. RE: Delay in the dredging of Lake Aumond and Hiers
Pond. (Requested by Commissioner Joe Bowles)
Attachments
CONSENT AGENDA
(Items 1-3)
PLANNING
1. ZA-R-214 – A request for concurrence with the Augusta Georgia
Planning Commission to approve a petition to amend the
Comprehensive Zoning Ordinance for Augusta Georgia by
amending area allowances in Section 28-B-8-B (Signs) Freestanding
Signs in Professional, Commercial and Industrial Zones dealing with
bonus percentages. (Approved by the Augusta Commission June 19,
2012 - second reading)
Attachments
ADMINISTRATIVE SERVICES
2. Motion to approve amending the 2012 Action Plan due to a decrease in
Fiscal Year 2012 allocations for the Community Development Block
Grant (CDBG), HOME Investment Partnerships (HOME), Housing
Opportunities for Persons with AIDS (HOPWA) and increased
Emergency Solutions Grant (ESG) Programs. (Approved by
Administrative Services Committee subject to 30-day comment
Attachments
period)
PETITIONS AND COMMUNICATIONS
3. Motion to approve the minutes of the regular meeting of the
Commission held June 19, 2012, Special Called meetings held June 5
and June 11, 2012 and Executive Sessions held April 23, May 29, June 5,
11 & 19, 2012.
Attachments
****END CONSENT AGENDA****
AUGUSTA COMMISSION
6/28/2012
AUGUSTA COMMISSION
REGULAR AGENDA
6/28/2012
(Items 4-14)
PLANNING
4. Consider a request from Pastor Hardy S. Bennings, III for a Road Name
Change of a portion of Twelfth St., between Reynolds Street and Jones
Street, to Springfield Way.
Attachments
PUBLIC SERVICES
5. Motion to approve and execute the extension of the contract for Grounds
& Landscaping Maintenance with Augusta Lawn & Turf, Inc. This item
has been approved by the Aviation Conmmission on 2/23/12.
Attachments
ADMINISTRATIVE SERVICES
6. Approve the selection committee's choice of HealthStat as the Augusta,
Georgia Onsite Clinic Provider.
Attachments
PUBLIC SAFETY
7. Approve the replacement of obsolete computer equipment (laptops, Attachments
computers, servers, printers, scanners, switches, routers, and other
telecommunication devices) as well as the purchase of any required
computer software upgrades.
FINANCE
8. Approve the replacement of one 1996 aerial bucket truck for Augusta
Engineering Department – Traffic Engineers Division.
Attachments
9. Approve the replacement of two slope mowers for the Augusta
Engineering Department – Maintenance Division.
Attachments
10. Approve request from Utilities Department-Construction &
Maintenance Division to replace one older backhoe loader.
Attachments
11. Approve request from Utilities Department-Fort Gordon Division to
purchase one skid steer loader with various implements.
Attachments
ENGINEERING SERVICES
12. Approve granting Georgia Power an easement for their utilities to
provide electrical service to the new Search and Rescue Air Hanger N.
Entrance (1501 Aviation Way/Doug Barnard Pkwy.), as requested by
AED. Also approve having the agreement executed by the appropriate
Augusta official(s).
Attachments
ADMINISTRATOR
13. Motion to approve the Reynolds Street Parking Deck Construction,
Operating and Reciprocal Easement Agreement, Reynolds Street Parking
Deck Management Agreement, Conference Center Parking Lease and
Assignment of Parking Deck Management Agreement, and to authorize
the Mayor and Clerk of Commission to execute same.
Attachments
LEGAL MEETING
A. Pending and Potential Litigation.
Upcoming Meetings
www.augustaga.gov
B. Real Estate.
C. Personnel.
14. Motion to authorize execution by the Mayor of the affidavit of
compliance with Georgia's Open Meeting Act.
Commission Meeting Agenda
6/28/2012 5:00 PM
Invocation
Department:
Caption:Fr. Jacek Szuster, Pastor, Church of the Most Holy Trinity
Catholic Church.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Item # 1
Commission Meeting Agenda
6/28/2012 5:00 PM
Mr. Phil Lee
Department:
Caption: Mr. Phil Lee. RE: Delay in the dredging of Lake Aumond and
Hiers Pond. (Requested by Commissioner Joe Bowles)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Item # 2
Commission Meeting Agenda
6/28/2012 5:00 PM
ZA-R-214
Department:Planning Commission
Caption: ZA-R-214 – A request for concurrence with the Augusta Georgia
Planning Commission to approve a petition to amend the
Comprehensive Zoning Ordinance for Augusta Georgia by
amending area allowances in Section 28-B-8-B (Signs)
Freestanding Signs in Professional, Commercial and Industrial
Zones dealing with bonus percentages. (Approved by the
Augusta Commission June 19, 2012 - second reading)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Item # 3
ORDINANCE ______
An Ordinance to amend the Comprehensive Zoning Ordinance adopted by the
Augusta, Georgia Commission effective September 16, 1997 by amending
Section 28-B ( Signs)
THE AUGUSTA COMMISSION HEREBY ORDAINS:
SECTIO I. That the Comprehensive Zoning Ordinance is amended by amending the
following in Section 28-B-8-B - Signs
B. Sign Surface Area. The maximum freestanding sign surface area in the P-1 zone
is 24 square feet. Signs in the P-1 Zone shall be non-illuminated and shall not be
located within 20 feet of a single-family residential zone nor within 25 feet of the
intersection of the right-of-way lines of intersecting streets. In B-1 zones, the
maximum sign surface area is 100 square feet unless the sign location would be
within 100 feet of a single-family residence or single-family residential zone in
which case the maximum sign surface area shall be 50 square feet. In the Planned
Development Riverfront Zone (PDR) or National Register or locally designated
historic districts (Title 7, Chapter 4 of the Augusta, Georgia Code), the maximum
sign surface area shall be 35 feet in a B-1 zone. Signs other than billboards that
are located in B-2, LI, or HI zones, the maximum sign surface area is 200 square
feet. If the sign location would be located within 100 feet of a single-family
residence or single-family residential zone, or within the Planned Development
Riverfront Zone (PDR), or the sign would be located in a national register or
locally designated historic district (Title 7, Chapter 4 of the Augusta, Georgia
Code), the sign surface area is limited to a maximum of 50 square feet.
Freestanding signs may be either monument (completely enclosed base) or pylon
(pole) supported. There shall be no limitation on the size of a simple pole or
beam support system. For a monument sign, the supporting structure of the sign
shall not be included in calculating the area of the sign permitted by this
Ordinance; provided, however, that the supporting structure shall not exceed 50%
of the total combined area of the sign and supporting structure.
To encourage design excellence and enhance the aesthetic quality of
development, the minimum freestanding sign surface area set forth above may be
increased in all cases as provided herein. A separate bonus may be granted for
each of the criteria, but in no case may the total bonus exceed 70%. Bonus
provisions shall not apply to billboards or signs that are located within the
Planned Development Riverfront Zone (PDR) or in National Register or locally
designated historic districts (Title 7, Chapter 4 of the Augusta, Georgia Code).
Attachment number 1 \nPage 1 of 4
Item # 3
1) 10% bonus when the sign is constructed of solid wood and the design is
compatible with the style, texture, and color scheme of the structure(s) on
the site;
2) 10% bonus when an area around the base of the sign is at least 4 times the
area of the sign surface and the area around the base of the sign is covered
by a landscaped planter;
3) 10% bonus if the sign is unlighted;
4) 45% bonus where a proposed sign would replace an existing sign that is
100% larger than the current Ordinance would permit, where the proposed
sign location would not be within 100 feet of a single family residence or
zone, and where the proposed sign would be the only freestanding sign on
the property;
5) 45% bonus if the lot qualifies for more than 1 freestanding sign but only 1
sign is erected, if the proposed sign location would not be within 100 feet
of a single family residence or zone;
6) 25% bonus if the proposed sign location is more than 100 feet from any
existing or proposed public street or highway right-of-way, the proposed
sign is the only freestanding sign on the property, and the proposed sign
location would not be within 100 feet of a single family residence or zone.
SECTIO II. That the Comprehensive Zoning Ordinance is amended by substituting
the following in Section 28-B-8-B - Signs
B. Sign Surface Area. The maximum freestanding sign surface area in the P-1 zone
is 24 square feet. Signs in the P-1 Zone shall be non-illuminated and shall not be
located within 20 feet of a single-family residential zone nor within 25 feet of the
intersection of the right-of-way lines of intersecting streets. In B-1 zones, the
maximum sign surface area is 100 square feet unless the sign location would be
within 100 feet of a single-family residence or single-family residential zone in
which case the maximum sign surface area shall be 50 square feet. In the Planned
Development Riverfront Zone (PDR) or National Register or locally designated
historic districts (Title 7, Chapter 4 of the Augusta, Georgia Code), the maximum
sign surface area shall be 35 feet in a B-1 zone. Signs other than billboards that
are located in B-2, LI, or HI zones, the maximum sign surface area is 200 square
feet. If the sign location would be located within 100 feet of a single-family
residence or single-family residential zone, or within the Planned Development
Riverfront Zone (PDR), or the sign would be located in a national register or
locally designated historic district (Title 7, Chapter 4 of the Augusta, Georgia
Code), the sign surface area is limited to a maximum of 50 square feet.
Freestanding signs may be either monument (completely enclosed base) or pylon
(pole) supported. There shall be no limitation on the size of a simple pole or
beam support system. For a monument sign, the supporting structure of the sign
shall not be included in calculating the area of the sign permitted by this
Attachment number 1 \nPage 2 of 4
Item # 3
Ordinance; provided, however, that the supporting structure shall not exceed 50%
of the total combined area of the sign and supporting structure.
To encourage design excellence and enhance the aesthetic quality of
development, the minimum freestanding sign surface area set forth above may be
increased in all cases as provided herein. A separate bonus may be granted for
each of the criteria, but in no case may the total bonus exceed 45%. Bonus
provisions shall not apply to billboards or signs that are located within the
Planned Development Riverfront Zone (PDR) or in National Register or locally
designated historic districts (Title 7, Chapter 4 of the Augusta, Georgia Code).
1) 10% bonus when the sign is constructed of solid wood and the design is
compatible with the style, texture, and color scheme of the structure(s) on
the site;
2) 10% bonus when an area around the base of the sign is at least 4 times the
area of the sign surface and the area around the base of the sign is covered
by a landscaped planter;
3) 10% bonus if the sign is unlighted;
4) 25% bonus where a proposed sign would replace an existing sign that is
100% larger than the current Ordinance would permit, where the proposed
sign location would not be within 100 feet of a single family residence or
zone, and where the proposed sign would be the only freestanding sign on
the property;
5) 25% bonus if the lot qualifies for more than 1 freestanding sign but only 1
sign is erected, if the proposed sign location would not be within 100 feet
of a single family residence or zone;
6) 25% bonus if the proposed sign location is more than 100 feet from any
existing or proposed public street or highway right-of-way, the proposed
sign is the only freestanding sign on the property, and the proposed sign
location would not be within 100 feet of a single family residence or zone.
SECTIO III . All Ordinances or parts of Ordinances in conflict with this Ordinance are hereby
repealed.
Duly adopted by the Augusta, Georgia Commission this ______ day of
__________________, 2012.
__________________________________________
MAYOR, AUGUSTA COMMISSION
AUGUSTA, GEORGIA
ATTEST:
________________________________________
LENA BONNER, CLERK
Attachment number 1 \nPage 3 of 4
Item # 3
First Reading: ____________________________
Second Reading: __________________________
Attachment number 1 \nPage 4 of 4
Item # 3
Commission Meeting Agenda
6/28/2012 5:00 PM
Road Name change of a portion of Twelfth Street
Department:Planning and Development
Caption:Consider a request from Pastor Hardy S. Bennings, III for a Road
Name Change of a portion of Twelfth St., between Reynolds Street
and Jones Street, to Springfield Way.
Background:This road name change request is being made to honor Springfield
Baptist Church, the oldest independent African American church in
the United Stated with continuous service in its original location,
which is celebrating its 225th anniversary this year. The unveiling
of the newly named street signs, on August 12, 2012, during the
church’s Commemorative Celebration at Springfield, will be part of
the church’s year-long celebration.
Analysis:The road name change is acceptable to the minimum requirement of
66% of the adjoining property owners (66%, or 2 of 3 adjoining
property owners, have approved the name change) along this
portion of Twelfth Street, between Reynolds Street and Jones
Street.
Financial Impact:cost of road signs
Alternatives:approve or deny
Recommendation:approve
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Administrator.
Cover Memo
Item # 4
Attachment number 1 \nPage 1 of 5
Item # 4
Attachment number 1 \nPage 2 of 5
Item # 4
Attachment number 1 \nPage 3 of 5
Item # 4
Attachment number 1 \nPage 4 of 5
Item # 4
Attachment number 1 \nPage 5 of 5
Item # 4
Commission Meeting Agenda
6/28/2012 5:00 PM
Landscaping and Ground Maintenance Contact Extension
Department:Procurement
Caption:Motion to approve and execute the extension of the contract for
Grounds & Landscaping Maintenance with Augusta Lawn & Turf,
Inc. This item has been approved by the Aviation Conmmission
on 2/23/12.
Background:The Augusta Regional Airport, through the Procurement Process,
bid the contract for Grounds and Landscaping Maintenance
Services which was approved by Commission on 6/7/11, item
#4. The original contract had an extention clause for one
additional year at the sole option of the city. The Augusta
Regional Airport would like to exercise this option which has
already been approved by the Aviation commission on 2/23/12.
Analysis:The services of the past year have been acceptable and the
Augusta Rgional Airport does not have the staff or expertise to
perform this service.
Financial Impact:$52,582.00 for one year
Alternatives:Deny request.
Recommendation:Approve contract extention for Auigusta Regional Airport for
Augusta Lawn & Turf to continue to provide the Gound
Maintenance & Landscape.
Funds are Available
in the Following
Accounts:
551081110/5212999
REVIEWED AND APPROVED BY:
Finance.
Cover Memo
Item # 5
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 5
Attachment number 1 \nPage 1 of 3
Item # 5
Attachment number 1 \nPage 2 of 3
Item # 5
Attachment number 1 \nPage 3 of 3
Item # 5
Commission Meeting Agenda
6/28/2012 5:00 PM
Amending Year 2012 Action Plan Due to Decrease In Funding
Department:Housing and Community Development Department
Caption:Motion to approve amending the 2012 Action Plan due to a
decrease in Fiscal Year 2012 allocations for the Community
Development Block Grant (CDBG), HOME Investment
Partnerships (HOME), Housing Opportunities for Persons with
AIDS (HOPWA) and increased Emergency Solutions Grant
(ESG) Programs. (Approved by Administrative Services
Committee subject to 30-day comment period)
Background:On November 1, 2012, the Commission approved the 2012 Action
Plan as part of the 2010-2014 Consolidated Plan. At the time the
2012 Action Plan was submitted to HUD, Congress had not
appropriated funds for Fiscal Year 2012. Consequently, the City
based its estimated allocations for 2012 on grant amounts received
in Year 2011. On April 19, 2012, HUD notified the City of its
actual allocations for Year 2012 CDBG, HOME, and HOPWA
which reflects a total decrease in funds of $766,602. However, the
ESG allocation has an increase, due to Homeless Prevention and
Rapid Re-Housing Program (HPRP) ending. Provided as
Attachment #1 is a listing of the estimated program allocations
and the actual program allocations the City will received for Year
2012. Due to the decrease/increase in allocations, the 2012
Action Plan must be amended to take into consideration the
reduction in funds. All CDBG, HOME, HOPWA and increased
ESG projects are affected. Attachments reflects the estimated
program/projects allocations (proposed) and actual
program/project allocations for each program. According to the
City’s Citizen Participation Policy, this decrease/increase in
allocations for each program and each project triggers a
substantial change to the 2012 Action Plan. Therefore, the
revisions must be presented to the public for a 30-day comment
period. If comments are received, they will be presented to the
Commission on June 28, 2012 for consideration. Staff is
requesting authorization to proceed with the publication of a
Public Notice in the newspapers to solicit comments on the
changes. The Public Notices will be published in the Augusta
Chronicle, May 30, 2012 and the Metro Courier May 31,
2012. The deadline for public comments will be June 28, 2012 at
Cover Memo
Item # 6
12 noon. Any comments received will be presented to
Commission on June 28, 2012.
Analysis:It has been known for some time Federal allocations were going to
be decreased by Congress. The City must incorporate the changes
(decrease in funds) into its 2012 Action Plan to accurately reflect
the reduced projects’ budgets. The revised 2012 Action Plan and
any comments received will be transmitted to HUD.
Financial Impact:Due to the decreases in CDBG, HOME, HOPWA and increase
ESG program allocations, each project will undergo a
decrease/increase in funds and a change in the scope of services.
Therefore, the scope of services for each funded project will be
scaled back to accommodate the reductions.
Alternatives:None
Recommendation:Accept the Housing and Community Development Department
(HCD) recommendations for reduction in project funds and grant
HCD authorization to proceed with the publication of a Public
Notice soliciting citizen comments on the proposed changes to the
2012 Action Plan. On June 28, 2012, all comments received will
be presented to Commission for consideration.
Funds are Available
in the Following
Accounts:
See Attachment
REVIEWED AND APPROVED BY:
Cover Memo
Item # 6
Attachment number 1 \nPage 1 of 6
Item # 6
Attachment number 1 \nPage 2 of 6
Item # 6
Attachment number 1 \nPage 3 of 6
Item # 6
Attachment number 1 \nPage 4 of 6
Item # 6
Attachment number 1 \nPage 5 of 6
Item # 6
Attachment number 1 \nPage 6 of 6
Item # 6
Commission Meeting Agenda
6/28/2012 5:00 PM
Approve HealthStat as Augusta, Georgia’s Onsite Clinic for Augusta, GA effective 09/01/2012.
Department:Human Resources
Caption:Approve the selection committee's choice of HealthStat as the
Augusta, Georgia Onsite Clinic Provider.
Background:Augusta has more than 2,400 employees eligible for medical
insurance. An on-site clinic would provide a great way to offset
some of the costs incurred by medical insurance claims, while
providing faster and more economical service to employees.
Analysis:The selection committee reviewed three finalist for the on-site
clinic RFP and selected two finalists. HealthStat and Health to
You. After finalists presentations were held the committee
unanimously selected HealthStat.
Financial Impact:The total estimated cost to run the clinic through the end of 2012,
allowing only actively at work employees that are enrolled in the
health plan to utilize the clinic will be approximately $178,160.
The estimated savings to Augusta Richmond County in reduced
medical claims, lost time at work due to diversion of healthcare
and improved overall health and wellness is approximately
$413,331.
Alternatives:Do not approve HealthStat as Augusta, Georgia’s Onsite Clinic
for Augusta, GA effective 09/01/2012.
Recommendation:Approve HealthStat as Augusta, Georgia’s Onsite Clinic for
Augusta, GA effective 09/01/2012.
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:Cover Memo
Item # 7
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 7
Attachment number 1 \nPage 1 of 4
Item # 7
Attachment number 1 \nPage 2 of 4
Item # 7
Attachment number 1 \nPage 3 of 4
Item # 7
Attachment number 1 \nPage 4 of 4
Item # 7
Commission Meeting Agenda
6/28/2012 5:00 PM
Replacement of Obsolete Computer Equipment
Department:Information Technology
Caption: Approve the replacement of obsolete computer equipment
(laptops, computers, servers, printers, scanners, switches, routers,
and other telecommunication devices) as well as the purchase of
any required computer software upgrades.
Background:In an effort to provide the employees of Augusta Richmond
County with current technology, the Information Technology
Department (IT) schedules replacement of EOL (end of life)
devices that, due to their age and capabilities, are not compatible
with current standards and are unable to support the current
software requirements. Information Technology has developed an
IT Technology Replacement plan that replaces obsolete computers
every 4 years and printers every 5 - 6 years, the normal life
expectancy for the equipment. The replacement of desktops will
consist of all computers that are not capable of operating the
current software needs and the scheduled printers, laptops, servers,
and scanners. Information Technology is also continuing with the
standardization of the current operating system and Microsoft
Office products throughout the organization. Therefore, required
computer software upgrades may need to be purchased for the
computers that are not scheduled to be replaced. Regardless of
funding source, all technology equipment removed from
production will be disposed of in accordance with the technology
disposal policy previously approved by the Commission.
Inoperable equipment will be taken to the electronic recycling
drop point at the Augusta-Richmond County Landfill, qualified
equipment such as functional PCs that meet a determined
specification will be sold in the Employee Lottery, and all other
functional equipment will be taken to Fleet for sale in the county
auction. All data will be erased from any device using a DOD
certified hard drive eraser.”
Analysis:Currently there are estimated 1500 computers deployed by the
city. The life expectancy of a computer is 4 - 5 years. In some
cases, these computers, servers and printers are incapable of
processing the software required by today’s business environment.
We have determined that some Hewlett Packard printer models
Cover Memo
Item # 8
over 7 years old are not capable of printing documents of
acceptable quality. There are also laptops in inventory that are
over 6 years old and will not run current software packages. These
items will be purchased from state contract. (SWC - 90813)
Financial Impact:The total estimated cost is $515,000. Funds for these replacements
are included in the Information Technology 2012 Capital Budget.
Alternatives:Leave existing devices in place. However, this will increase the
cost of replacements in future budgets and will affect other
technology related implementations. Due to limited funding in
2011 virtually all equipment scheduled for refresh at that time has
already been extended another year. Increasing the city's exposure
to the risk of supporting and maintaining this out-of-date
equipment another year could result in unpredictable outcomes.
Recommendation:Approve the replacement of obsolete computer equipment
(laptops, computers, servers, printers, scanners, switches, routers,
and other telecommunication devices) and purchase of any
required computer software upgrades.
Funds are Available
in the Following
Accounts:
272015410-5316220(Desktops) 272015410-5316230(Laptops)
272015410-5316260(Printers) 272015410-5424210(Servers)
272015410-5316250 (Peripherals) 272015410-5424210(Servers)
272015410-5232111 (Telephone-Other)
REVIEWED AND APPROVED BY:
Cover Memo
Item # 8
Commission Meeting Agenda
6/28/2012 5:00 PM
Request the Purchase of One Aerial Bucket Truck
Department:Fleet Management
Caption: Approve the replacement of one 1996 aerial bucket truck for
Augusta Engineering Department – Traffic Engineers Division.
Background:Fleet Management would like to request replacing an older aerial
lift truck, asset 960440, a 1996 unit, which is not fully capable of
handling the daily tasks of the department. The Augusta
Engineering Department-Traffic Engineers Division is responsible
for the maintenance of the city’s multitude of traffic lights and
other electronic directional devices. The current 1996 truck is ill
equipped to handle most of their current daily job requirements as
it does not have articulating capability which is needed to operate
safely around traffic areas. This older truck is also beginning to
accumulate maintenance problems as would be expected due to
age. The acquisition of the new truck would better support
employee safety and greatly enhance job performance. This older
truck does exceed the replacement criteria approved in 2004. The
assessment has been attached for review.
Analysis:Fleet Management would like to utilize the Federal General
Services Administration bid program to purchase the unit. The
GSA low bid for this unit was awarded to Altec, Inc., (bid award
number GS-30F-1028G as indicated by the attachment
paperwork).
Financial Impact:This truck will be purchased through the use of 2012 General
Fund Capital Outlay funds. The cost of the new aerial truck is
$97,180.00.
Alternatives:(1) Approve the request; (2) Do not approve the request
Recommendation:Approve the request to purchase one aerial bucket truck from
Altec Industries, Inc. using the GSA low bid.
Funds are Available Cover Memo
Item # 9
in the Following
Accounts:272-01-6440/54.22110
REVIEWED AND APPROVED BY:
Finance.
Procurement.
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 9
Attachment number 1 \nPage 1 of 14
Item # 9
Attachment number 1 \nPage 2 of 14
Item # 9
Attachment number 1 \nPage 3 of 14
Item # 9
Attachment number 1 \nPage 4 of 14
Item # 9
Attachment number 1 \nPage 5 of 14
Item # 9
Attachment number 1 \nPage 6 of 14
Item # 9
Attachment number 1 \nPage 7 of 14
Item # 9
Attachment number 1 \nPage 8 of 14
Item # 9
Attachment number 1 \nPage 9 of 14
Item # 9
Attachment number 1 \nPage 10 of 14
Item # 9
Attachment number 1 \nPage 11 of 14
Item # 9
Attachment number 1 \nPage 12 of 14
Item # 9
Attachment number 1 \nPage 13 of 14
Item # 9
Attachment number 1 \nPage 14 of 14
Item # 9
Commission Meeting Agenda
6/28/2012 5:00 PM
Request the Purchase of Two Slope Mowers
Department:Fleet Management
Caption: Approve the replacement of two slope mowers for the Augusta
Engineering Department – Maintenance Division.
Background:The Augusta Engineering Department-Maintenance Division is
responsible for the grass maintenance in the city and surrounding
areas of Augusta. A significant amount of their grass
maintenance tasks include working along severely sloped banks
and inclines along the highways and roadways which requires the
use of a specialty slope mower. Due to the lack of funding over
the last few years, the department’s slope mower fleet has
deteriorated rapidly. Several of their current slope mowers are no
longer manufactured so the ability to find parts is nearly
impossible. Also, the maintenance costs are escalating rapidly
since, in many cases, the shop has to fabricate many repairs. These
existing units also create a hazardous working environment for the
operators since some of the safety implementation is outdated.
The acquisition of the new slope mowers would greatly
enhance the operator’s safety as well as job performance in their
efforts to maintain a stable grass cutting program. The mower
asset numbers, 995188, a 2000 model, and F00209, a 2001 model
meets or exceeds the replacement criteria approved by the
Commission in 2004. The assessments have been attached for
review.
Analysis:Fleet Management would like to utilize the Federal General
Services Administration contract program to purchase the units.
The GSA contract was awarded to Kut Kwick Corporation of
Brunswick, Georgia. The award number is GS-07F-8815D as
indicated by the paperwork which we have attached for your
review.
Financial Impact:This equipment will be purchased through the use of 2004 Phase
IV sales tax funds. The cost of the new slope mowers is
$71,726.00 each for a total cost of $143,452.00.
Alternatives:(1) Approve the request; (2) Do not approve the request
Cover Memo
Item # 10
Recommendation:Approve the request to purchase two slope mowers from Kut
Kwick, Inc, of Brunswick, Georgia.
Funds are Available
in the Following
Accounts:
324-04-1110/54.21120 201-82-4010/54.21120
REVIEWED AND APPROVED BY:
Finance.
Procurement.
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 10
Attachment number 1 \nPage 1 of 6
Item # 10
Attachment number 1 \nPage 2 of 6
Item # 10
Attachment number 1 \nPage 3 of 6
Item # 10
Attachment number 1 \nPage 4 of 6
Item # 10
Attachment number 1 \nPage 5 of 6
Item # 10
Attachment number 1 \nPage 6 of 6
Item # 10
Commission Meeting Agenda
6/28/2012 5:00 PM
Request to purchase one Backhoe Loader for Utilities-Construction and Maintenance Division
Department:Fleet Management
Caption: Approve request from Utilities Department-Construction &
Maintenance Division to replace one older backhoe loader.
Background:The Augusta Utilities Department-Construction and Maintenance
Division requests the replacement of one older rubber tired,
backhoe/loader, asset number F00169, a 2001 model with
considerable wear and tear. Backhoe loaders are critical to the
department in the installation and maintenance of water and sewer
lines, hydrants, and many other critical components utilized in
Augusta’s water and sewerage systems. This older backhoe was
reviewed and met all of the required criteria for replacement. The
evaluation of this backhoe is attached for review.
Analysis:Fleet Management would like to utilize the Georgia State Contract
bid program to purchase the equipment. The Georgia State
Contract for this unit was awarded to Border Equipment, Inc, of
Augusta, Georgia. The state bid award number is SWC-99999-
SPD-0000043-0002. We have attached the appropriate paperwork
for your review.
Financial Impact:The unit will be purchased for $79,109.00 using the GMA lease
program, with an annual premium of $26,369.67 each year for 3
years.
Alternatives:1. Approve the purchase. 2. Do not approve the purchase
Recommendation:Approve request to purchase the replacement backhoe from
Border Equipment Company for $79,109.00 and declare the
existing backhoe surplus and available for auction.
Funds are Available
in the Following
Accounts:
631-00-0000/11.19114
Cover Memo
Item # 11
REVIEWED AND APPROVED BY:
Finance.
Procurement.
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 11
Attachment number 1 \nPage 1 of 11
Item # 11
Attachment number 1 \nPage 2 of 11
Item # 11
Attachment number 1 \nPage 3 of 11
Item # 11
Attachment number 1 \nPage 4 of 11
Item # 11
Attachment number 1 \nPage 5 of 11
Item # 11
Attachment number 1 \nPage 6 of 11
Item # 11
Attachment number 1 \nPage 7 of 11
Item # 11
Attachment number 1 \nPage 8 of 11
Item # 11
Attachment number 1 \nPage 9 of 11
Item # 11
Attachment number 1 \nPage 10 of 11
Item # 11
Attachment number 1 \nPage 11 of 11
Item # 11
Commission Meeting Agenda
6/28/2012 5:00 PM
Request to purchase one Skidsteer Loader for Utilities
Department:Fleet Management
Caption: Approve request from Utilities Department-Fort Gordon Division
to purchase one skid steer loader with various implements.
Background:
The Augusta Utilities Department-Fort Gordon Division requests
the acquisition on one skid steer loader to assist with the many
various and diverse job tasks they encounter on a daily basis with
the Fort Gordon contract. The division currently is responsible for
the maintenance and operation of the Fort Gordon fresh water and
storm drain systems as well as irrigation systems. To assist in this
undertaking, the utility qualities of the new skid steer machine
would greatly enhance daily job performance, equipment and
work crew utilization, and employee safety.
Analysis:Fleet Management would like to utilize the Georgia State Contract
bid program to purchase the proposed equipment. The Georgia
State Contract for this unit was awarded to Border Equipment,
Inc, of Augusta, Georgia. The state bid award number is SWC-
99999-SPD-0000043-0002. We have attached the appropriate
paperwork for your review.
Financial Impact:The equipment will be purchased for $38,170.00 using budgeted
funds from the Utilites department.
Alternatives:1. Approve the request. 2. Do not approve the request.
Recommendation:Approve request to purchase the skid steer loader with implements
for $38,170.00.
Funds are Available
in the Following
Accounts:
506043430-5422510/88880005/5422510
Cover Memo
Item # 12
REVIEWED AND APPROVED BY:
Finance.
Procurement.
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 12
Attachment number 1 \nPage 1 of 6
Item # 12
Attachment number 1 \nPage 2 of 6
Item # 12
Attachment number 1 \nPage 3 of 6
Item # 12
Attachment number 1 \nPage 4 of 6
Item # 12
Attachment number 1 \nPage 5 of 6
Item # 12
Attachment number 1 \nPage 6 of 6
Item # 12
Commission Meeting Agenda
6/28/2012 5:00 PM
Georgia Power Easement-Search and Rescue Air hanger
Department:Engineering Department-Abie L. Ladson, P.E., CPESC, Director
Caption: Approve granting Georgia Power an easement for their utilities to
provide electrical service to the new Search and Rescue Air
Hanger N. Entrance (1501 Aviation Way/Doug Barnard Pkwy.),
as requested by AED. Also approve having the agreement
executed by the appropriate Augusta official(s).
Background:Georgia Power is requesting an easement for the underground
distribution line to service this facility. Augusta, Georgia is the
owner of this property; therefore, Augusta should sign granting
the easement.
Analysis:This easement will allow Georgia Power to provide electrical
service to the new building and also to maintain this service.
Financial Impact:There will be no financial impact to Augusta, Georgia.
Alternatives:1) Approve granting Georgia Power an easement for their utilities
to provide electrical service to the new Search and Rescue Air
Hanger N. Entrance (1501 Aviation Way/Doug Barnard Pkwy.),
as requested by AED. Also approve having the agreement
executed by the appropriate Augusta official(s). 2) Do not approve
and deny electrical service to the facility.
Recommendation:Approve Alternative Number One.
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Finance.
Cover Memo
Item # 13
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 13
Attachment number 1 \nPage 1 of 3
Item # 13
Attachment number 1 \nPage 2 of 3
Item # 13
Attachment number 1 \nPage 3 of 3
Item # 13
Commission Meeting Agenda
6/28/2012 5:00 PM
Minutes
Department:Clerk of Commission
Caption:Motion to approve the minutes of the regular meeting of the
Commission held June 19, 2012, Special Called meetings held
June 5 and June 11, 2012 and Executive Sessions held April
23, May 29, June 5, 11 & 19, 2012.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Item # 14
Commission Meeting Agenda
6/28/2012 5:00 PM
Approve agreements for Parking Decks
Department:Administrator / Finance
Caption:Motion to approve the Reynolds Street Parking Deck
Construction, Operating and Reciprocal Easement Agreement,
Reynolds Street Parking Deck Management Agreement,
Conference Center Parking Lease and Assignment of Parking
Deck Management Agreement, and to authorize the Mayor and
Clerk of Commission to execute same.
Background:The approval of the Reynolds Street Parking Deck Construction,
Operating and Reciprocal Easement Agreement, Reynolds Street
Parking Deck Management Agreement and Conference Center
Parking Lease were approved by the Commission on February 7,
2012.
Analysis:The approval of the Reynolds Street Parking Deck Construction,
Operating and Reciprocal Easement Agreement, Reynolds Street
Parking Deck Management Agreement and Conference Center
Parking Lease were approved by the Commission on February 7,
2012, subject to a change in the term of the Management
Agreement and the conveyance by 933 Broad, LLC of its surface
rights beneath the parking deck to the Augusta, Georgia Land
Bank Authority. 933 Broad, LLC’s lender has requested slight
modifications and for Augusta to consent to an Assignment of
Parking Deck Management Agreement. Attached are copies of the
Deed to Augusta, Deed to the Augusta, Georgia Land Bank
Authority and the Quitclaim Deed and Partial Release that will be
executed and recorded upon finalization of these documents
Financial Impact:No funding is necessary
Alternatives:N/A
Recommendation:Approve the execution of the documents
Funds are Available Cover Memo
Item # 15
in the Following
Accounts:n/a
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Item # 15
1
00455906-10
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”).
B. 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.
C. 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.
D. 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
Attachment number 1 \nPage 1 of 21
Item # 15
2
00455906-10
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. Definitions. As used in this Agreement, the following terms shall have the
following meanings.
“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.
Attachment number 1 \nPage 2 of 21
Item # 15
3
00455906-10
“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
Attachment number 1 \nPage 3 of 21
Item # 15
4
00455906-10
the right to rebuild the Parking Deck or the right to require the other Party or any person or entity to re-
build 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,
Attachment number 1 \nPage 4 of 21
Item # 15
5
00455906-10
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 pre-
disturbed 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,
Attachment number 1 \nPage 5 of 21
Item # 15
6
00455906-10
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.
Attachment number 1 \nPage 6 of 21
Item # 15
7
00455906-10
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. Title to the Parking Deck. The structure of the Parking Deck shall be owned by
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.
Attachment number 1 \nPage 7 of 21
Item # 15
8
00455906-10
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:
Attachment number 1 \nPage 8 of 21
Item # 15
9
00455906-10
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
Attachment number 1 \nPage 9 of 21
Item # 15
10
00455906-10
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
Attachment number 1 \nPage 10 of 21
Item # 15
11
00455906-10
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:
Attachment number 1 \nPage 11 of 21
Item # 15
12
00455906-10
In case of the City to:
Augusta, Georgia
City County Municipal Building
530 Greene Street
Augusta, Georgia 30901
Attn: City Administrator
With a copy to:
Augusta, Georgia
Legal Department
530 Greene Street
Augusta, Georgia 30901
Attn: General Counsel
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:
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
Attachment number 1 \nPage 12 of 21
Item # 15
13
00455906-10
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
Attachment number 1 \nPage 13 of 21
Item # 15
14
00455906-10
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]
Attachment number 1 \nPage 14 of 21
Item # 15
15
00455906-10
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)
Augusta, Georgia
By:________________________
Its Mayor
Attest:______________________
Its Clerk of Commission
(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)
Attachment number 1 \nPage 15 of 21
Item # 15
16
00455906-10
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: ________________________
Attachment number 1 \nPage 16 of 21
Item # 15
17
00455906-10
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
Attachment number 1 \nPage 17 of 21
Item # 15
18
00455906-10
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.
Attachment number 1 \nPage 18 of 21
Item # 15
19
00455906-10
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 _____ # ____.
Attachment number 1 \nPage 19 of 21
Item # 15
20
00455906-10
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 _____ # ____.
Attachment number 1 \nPage 20 of 21
Item # 15
21
00455906-10
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 _____ # ____.
Attachment number 1 \nPage 21 of 21
Item # 15
00412263-14
Hull Barrett 5/16/12
Version 14
REYNOLDS STREET PARKING DECK MANAGEMENT
AGREEMENT
THIS REYNOLDS STREET PARKING DECK MANAGEMENT
AGREEMENT (“Agreement”) is made effective the ___ day of ________, 2012, by and
between AUGUSTA, GEORGIA (“Owner”) and AUGUSTA RIVERFRONT, LLC, a
Georgia limited liability company (“Manager”).
RECITALS
A. Owner is a political subdivision of the State of Georgia and a consolidated
city-county government pursuant to the laws of the State of Georgia.
B. Owner intends to construct and own the Reynolds Street Parking Deck
(the “RSPD”) which is generally defined as all elevated parking areas and specifically
excluding the ground level or surface parking areas owned by Augusta, Georgia Land
Bank Authority, on which easements for parking and other rights are held by 933 Broad,
LLC. The RSPD is to be located at the northwestern intersection of Reynolds Street and
James Brown Boulevard in Augusta, Georgia, and Owner intends to acquire certain air
rights relating to, or fee simple and/or leasehold title, to the land upon which such
building is located, and the furniture, fixtures, equipment, and supplies located therein.
C. Owner has determined that significant public benefits will ensue to the
citizens of Owner when the RSPD is continuously operated at a high standard of quality,
in order to positively affect the quality of life on the City of Augusta and its environs, and
in such a way so as to maximize its long-term utilization at rates at or above the non-
fixed costs of operation.
D. Owner has further determined that the RSPD be made available to all
persons and groups on such basis, without any preference for business entities or
associations, and that Owner’s objectives may best be achieved through a management
agreement with a private company with expertise in such matters.
E. Through its prior and current operation of the Conference Center, the
Augusta Marriott and the Augusta Marriott Suites (the “Hotels”), which are situated
adjacent to the Conference Center, Manager has sufficient knowledge as to local
conditions and possesses the resources to efficiently operate facilities of a character and
location comparable to the RSPD, and agrees to provide such time, expertise, and
knowledge to Manager as necessary to operate the facilities as required under this
Agreement.
Attachment number 2 \nPage 1 of 22
Item # 15
00412263-14
F. Owner desires to have Manager manage and operate the RSPD, and
Manager is willing to perform such services for the account of Owner on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. All capital terms herein and not otherwise defined shall
have the meaning as defined in the CORE Agreement or TEE Center CORE Agreement
or the RSPD CORE Agreement, as the context requires. In addition to the terms defined
elsewhere in this Agreement, the following terms shall have the meanings assigned to
them herein, unless the context otherwise indicates:
“Annual Plan” shall have the meaning set forth in Section 7.1.
“Approving Tax Opinion” shall mean the opinion of tax counsel experienced in
federal income tax matters related to state and local bonds, within the meaning of Section
103 of the Internal Revenue Code of 1986, as amended (the “Code”), and qualified
bonds, within the meaning of Section 141 of the Code, to the effect that a proposed action
or amendment will not, without more, impair any exclusion of the interest on any
outstanding issues of obligations that were issued to finance the RSPD, or result in the
disallowance of any credit against federal income tax or payable to the issuer of such
obligations by the U.S. Treasury Department.
“Capital Account” shall have the meaning set forth in Section 6.1.
“Capital Expenses” shall mean all expenditures for Capital Improvements.
“Capital Improvements” shall mean one or more items or project(s) - i) the cost
of each of which totals $5,000.00 or more, ii) that becomes part of the RSPD, and iii) the
cost of which is required or allowed to be capitalized under the accounting guidelines of
Augusta, Georgia and GAAP. Examples of Capital Improvements include but are not
limited to, traffic/parking/access control equipment, furniture, fixtures, roofing, and
striping, including the cost of repair or replacement thereof.
“Conference Center” shall mean the Expanded Conference Center, as defined in
the CORE Agreement.
“Convention Center” shall mean the Conference Center, the TEE Center, the
RSPD and the existing parking deck associated with the Conference Center.
“CORE Agreement” shall mean that Amended and Restated Construction,
Operating and Reciprocal Easement Agreement dated June 1, 1999, and recorded in the
Office of the Clerk of Superior Court of Richmond County, Georgia at Realty Reel 648,
Attachment number 2 \nPage 2 of 22
Item # 15
00412263-14
page 45, and all amendments thereto, including an amendment on or about the date of
this Agreement whereby the Conference Center is expanded to include Conference
Center Annex.
“Effective Date” shall mean the date on which construction of the RSPD has
been completed, a certificate of occupancy for the RSPD has been issued, and the RSPD
has been fully furnished and delivered to Manager for operation.
“Financial Statement” shall have the meaning set forth in Section 7.6.
“Fiscal Year” shall mean the twelve (12) month period ending December 31 of
each year during the Operating Term of this Agreement. The first Fiscal Year shall be
the period commencing on the Effective Date and ending on December 31 of the same
year. A partial Fiscal Year after the end of the last full Fiscal Year and ending with the
expiration or earlier termination of the Operating Term shall constitute a Fiscal Year.
“GAAP” shall mean Generally Accepted Accounting Principles based on the
accrual method of accounting.
“Management Fee” shall have the meaning set forth in Section 3.1.
“Manager’s Other Businesses” shall have the meaning set forth in Section 5.1.
“Net Operating Revenues” shall mean for any period the excess, if any, of
Operating Revenues over Operating Expenses, as determined using GAAP.
“Operating Account” shall have the meaning set forth in Section 6.1.
“Operating Expenses” shall mean all expenses required to be incurred in order to
operate and manage the RSPD to the extent the same are authorized under the applicable
Annual Plan, including, but not limited to the following: (a) Salary Costs of RSPD
Employees and Shared Employees; (b) operating supplies; (c) utility and telephone
charges; (d) repair and maintenance costs; (e) equipment rental costs; (f) insurance costs
related to RSPD operations, including insurance premiums paid by Manager on behalf of
the Owner (but not performance or fidelity bonds); (g) security costs; (h) cleaning
expenses; (i) cost of reimbursable event expenses; (j) the cost of obtaining an audited
financial statement of Manager; (k) pre- and post-opening marketing, promotional and
advertising expenses; (l) sales commissions; (m) maintenance agreements; and (n) any
other expenses incurred in the operation of the RSPD that would be considered operating
expenses under GAAP. Operating Expenses shall not include debt service on any
borrowing to finance the acquisition, construction, installation, and equipping of the
RSPD.
“Operating Revenues” shall mean the gross revenues generated from the
operation of the RSPD including, but not limited to, the following: (a) sums collected by
the Operator from the rental of space for the parking and storage of motor vehicles
whether on an hourly, daily, weekly, or monthly basis, less all refunds, credit card fee
discounts, and other discounts as authorized by Owner (sales tax, use tax, excise tax,
Attachment number 2 \nPage 3 of 22
Item # 15
00412263-14
occupancy tax, gross receipts tax, or other taxes assessed upon or attributable to said
receipts shall be held by the Operator and paid directly to the taxing entity involved); (c)
on-site advertising revenues; (d) interest income, if any, from the Operating Account; (e)
reimbursable event expenses; (f) all other RSPD miscellaneous revenue; (g) any and all
revenues generated by or associated with RSPD marquee advertising; and (h) revenue
derived from naming rights.
“Operating Term” shall have the meaning set forth in Section 2.4.
“RSPD CORE Agreement” shall mean the agreement executed in connection
with this Agreement which provides for the construction and operation of the RSPD and
provides any necessary easements with respect construction or operation of the RSPD.
“Salary Costs” shall mean the gross amount payable by an employer to secure
the services of an employee including, without limitation, employees’ accrued and vested
wages, salaries, employee medical/disability/life insurance and other health benefits
incurred by Manager, vacation pay and sick leave, severance costs, 401(k), profit sharing,
pension or similar retirement benefits or other accrued and vested fringe benefits,
business travel expenses, and other compensation of whatever nature, including any
applicable federal, state and local taxes. For the avoidance of doubt, Salary Costs may
also include bonuses for employees or commissions for sales staff.
“Shared Employees” shall have the meaning ascribed thereto by Section 5.3(f)
and may include officers, managers or members of Manager.
“Standard” shall mean the first-class standard of operation, maintenance and
repair of the TEE Center, adjusted to take into account the differences between a parking
deck and a trade, exhibit, and event center.
“TEE Center” shall mean the trade, event and exhibit hall to be constructed
adjacent to the existing Conference Center.
TEE Center CORE Agreement” shall mean the agreement executed in
connection with this Agreement, which provides for the construction and operation of the
TEE Center and provides any necessary easements with respect construction or operation
of the TEE Center.
“RSPD Employees” shall have the meaning set forth in Section 5.3(a) but shall
not include any officer or member of Manager or any person who, directly or indirectly,
otherwise owns an interest in Manger or any affiliate thereof.
ARTICLE II
APPOINTMENT OF MANAGER AND OPERATING TERM
2.1 Appointment of Manager; Powers and Duties Generally. Subject to
Manager’s covenants set forth in § 5.1, Owner hereby appoints, authorizes, and engages
Manager, and Manager hereby accepts appointment on the terms and conditions
Attachment number 2 \nPage 4 of 22
Item # 15
00412263-14
hereinafter provided as agent to: (a) manage, operate, control, license, and rent the RSPD
on Owner’s behalf during the Operating Term; (b) collect all fees, pay all expenses, and
pay or cause to be paid all Capital Expenses with respect to the RSPD in accordance with
the Annual Plan; (c) render Financial Statements to Owner as set forth in this Agreement;
(d) remit to the Owner on a quarterly basis Net Operating Revenues for the immediately
preceding quarter, less permitted reserves as authorized by § 6.2 of this Agreement; (e)
execute, renew and cancel rental and license agreements for the RSPD or any part thereof
at rates and on such terms as may be approved by Owner in accordance with the Annual
Plan; and (f) sue and recover for rent and for loss of or damage to any part of the RSPD
and, when expedient, compromise, settle and release any such legal proceedings or
lawsuits; provided, however, that Manager shall not settle any lawsuit or other claim
relating to the RSPD without the prior consent of Owner. Concerning the RSPD,
Manager shall have the exclusive right to enter into any lease, license or other agreement
granting any party the right to use any portion of the RSPD except as provided in the
Annual Plan. RSPD operations shall be under the exclusive supervision and control of
Manager subject to the terms of this Agreement. Manager shall have discretion and
control, free from interference, interruption or disturbance, in all matters relating to
management and operation of the RSPD, including, without limitation, charges for
license and rental, other RSPD services, employment policies, granting of concessions or
renting of space within the RSPD, receipt, holding and disbursement of funds,
maintenance of bank accounts, procurement of supplies and services, promotion and
publicity and, in general, all activities necessary for operation of the RSPD.
2.2 Restriction on RSPD Licenses and Rentals. Except as otherwise
additionally limited hereby, Manager shall have the discretion to prescribe the terms of
the rental or licensing of space at the RSPD based on generally applicable and uniformly
applied rates or that are negotiated with the user in arms-length bargaining, in either case,
that is consistent with the applicable Annual Plan. Notwithstanding the foregoing,
Manager shall not be prohibited by this Section 2.2 from entering into a lease or licensing
of space at the RSPD if Manager and Owner have received an Approving Tax Opinion.
2.3 Relationship of Parties. Neither this Agreement nor any agreements,
instruments, documents or transactions contemplated hereby shall in any respect be
interpreted, deemed or construed as making Manager a partner or joint venturer with
Owner or as creating any similar relationship or entity, and Owner and Manager agree
that they will not make any contrary assertion, contention, claim or counterclaim in any
action, suit or other legal proceeding.
2.4 Operating Term. Subject to Article IV, the initial Operating Term of this
Agreement shall be for a period commencing on the Effective Date and terminating on
the fifth (5) year anniversary of the Effective Date. The initial Operating Term may be
renewed or extended as provided in Section 2.5, 2.6, and 2.7. Notwithstanding the
foregoing, this Agreement shall be binding on the date it is signed by Owner and
Manager and provisions of this Agreement shall survive the Operating Term to the extent
specifically set forth in this Agreement. During the term of this Agreement and any
extension thereof, Owner shall have the right to use the parking spaces located on
Developer’s Property and the WAGT Tract after normal business hours and all hourly
Attachment number 2 \nPage 5 of 22
Item # 15
00412263-14
parking revenues generated or collected from the use of such parking spaces shall be the
property of Owner.
2.5 First Option of Owner to Extend Operating Term. Owner, in its sole
discretion, may elect, by written notice to Manager, within 60 days from the expiration of
the initial Operating Term of this Agreement, to renew the initial Operating Term of this
Agreement, for a period equal to the remaining term of the bond financing used for
construction of the RSPD or any refinancing with respect thereto, but in no event for a
term exceeding the lesser of 5 years or 80% of the remaining useful life of the RSPD (the
“First Renewal Option”). In the event Owner so elects to extend the Operating Term of
this Agreement, all of the other terms and conditions of this Agreement shall remain
unchanged during such extended Operating Term. In the event Owner elects not to
renew this Agreement, Owner shall not be liable for any penalties or other costs of any
kind whatsoever by reason of such non-renewal.
2.6 Second Option of Owner to Extend Operating Term. In the event
Owner exercises the First Renewal Option, Owner, in its sole discretion, may elect, by
written notice to Manager within 60 days from the expiration of the extended Operating
Term of this Agreement, to renew the Operating Term of this Agreement for a period
equal to the remaining term of the bond financing used for construction of the RSPD or
any refinancing with respect thereto, but in no event for a term exceeding the lesser of 5
years or 80% of the remaining useful life of the RSPD (the “Second Renewal Option”).
In the event Owner so elects to extend the Operating Term of this Agreement, all of the
other terms and conditions of this Agreement shall remain unchanged during such
extended Operating Term. In the event Owner elects not to renew this Agreement,
Owner shall not be liable for any penalties or other costs of any kind whatsoever by
reason of such non-renewal.
2.7 Right of First Refusal. In the event that Owner does not elect to exercise
its first or second option to extend, and solicits requests for proposals (“RFP”) for the
operation of the RSPD, then in such event Manager shall have the right to meet the terms
and conditions of the RFP of the entity that is deemed to be most qualified to operate the
RSPD. If Manager agrees to the terms and conditions contained in such RFP, then this
Agreement shall be renewed, subject to modification to incorporate any terms and
conditions consistent with accepted RFP, and right of first refusal shall be continue in
effect, provided however, that the total length of the primary term and all extensions shall
not exceed fifteen (15) years. Should Manager not elect to operate the RSPD pursuant to
the terms and conditions of the accepted RFP, then in such event Manager shall have no
further right to operate the RSPD, notwithstanding any prior vote of the Augusta, Georgia
Commission to designate Augusta Riverfront, LLC as the operator of the RSPD.
ARTICLE III
COMPENSATION OF MANAGER
3.1 RSPD Management Fee. Commencing on the Effective Date, Owner
shall, pay to Manager a Management Fee in the amount of $25,000.00 per year, payable
Attachment number 2 \nPage 6 of 22
Item # 15
00412263-14
in equal monthly installments, adjusted upward annually, but not downward, 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 for performing its services under this
Agreement in managing the RSPD. The parties acknowledge that certain property and
services paid for by Owner and required for the operation of the RSPD will also benefit
Manager’s easement for ground level parking facilities located underneath and adjacent
to the RSPD. Such property and services include, but are not limited to, traffic control
gates and related equipment, sweepers, lighting, and services of a toll both operator (the
“Incidental Services”). The Incidental Services would be required for the operation of
the RSPD whether or not Manager maintained easements for the ground level parking
facilities, and allowing Manager to benefit from these Incidental Services does not
materially increase the costs to Owner. Accordingly, in further consideration of the
granting of air rights and easements to Owner for the construction and operation of the
RSPD, Manager shall have the right to utilize the Incidental Services for Manager’s
ground level parking facilities (whether held in fee simple or easement) located
underneath and adjacent to the RSPD, so long as such use does not materially increase
the cost to Owner.
3.2 Payment of Fee. The Management Fees shall be due and payable no later
than the fifteenth (15th) day after the end of the month for which the Management Fee is
owed and may be remitted by Manager directly to Manager from the Operating Account.
3.3 Survival. The provisions of this Article shall survive termination of this
Agreement.
ARTICLE IV
TERMINATION
4.1 Termination. Should either party materially fail to comply with any of
the terms of this Agreement, the non-defaulting party may cancel this Agreement upon
ninety (90) days’ written notice to the other party of the alleged breach and failure by
such other party to cure such breach within such ninety (90) day period; provided,
however, that in the event the default is not curable within such ninety (90) day period,
but the defaulting party has commenced within the ninety (90) day period efforts to cure
the default, the time to cure the default shall be extended for a reasonable period of time
in order to allow such cure. In the event the party alleged to be in material default of this
Agreement disputes the existence of such material default, this Agreement shall continue
in full force until a court of competent jurisdiction finds such party to be in material
default, after written notice and expiration of the applicable cure period, and all time
periods for appeal of such finding have expired.
4.2 Rights and Obligations Following Termination. In addition to the
rights and remedies otherwise available to the parties at law or in equity, the following
provisions will apply following termination pursuant to this Article or the expiration of
the Operating Term.
Attachment number 2 \nPage 7 of 22
Item # 15
00412263-14
(a) Manager shall quit, vacate, surrender, and deliver to Owner
peacefully and promptly the RSPD, together with all books, records, accounts, contracts,
keys, all cash in the Operating Account, less any fees due Manager, and in the Capital
Account, and all other pertinent and necessary documents and records pertaining to the
RSPD and the operation thereof. After termination of this Agreement, Owner shall,
without right of offset against Manager, timely pay all unpaid Operating Expenses
incurred by Manager prior to the date of such termination, including without limitation,
Salary Costs;
(b) Manager shall do all acts and execute and deliver all documents
reasonably requested by Owner and otherwise reasonably cooperate with Owner and any
successor manager to insure or facilitate orderly continuation of the business of the
RSPD. Manager shall take such actions at Owner’s cost, in which case the costs of such
action shall be an Operating Expense;
(c) The rights and liabilities of the parties having accrued prior to
termination shall continue; and
(d) All provisions hereof identified herein as surviving termination of
this Agreement shall survive.
ARTICLE V
SERVICES OF MANAGER
5.1 Manager’s General Covenants.
(a) Manager shall use commercially reasonable efforts to manage and
operate the RSPD in accordance with industry standards for first class parking decks
affiliated with trade, exhibit, and event centers of similar size and quality.
(b) Manager acknowledges that a conflict of interest could arise
between Manager’s duties hereunder with respect to the RSPD and the interests of
Manager in the Hotel, the Conference Center and the RSPD and any other businesses
owned or operated (directly or through one or more affiliates) by Manager (“Manager’s
Other Businesses”). Manager covenants to use its best efforts to cause the RSPD to be
operated to fulfill Owner’s objectives. Without limiting the generality of the foregoing,
Manager shall never reduce or discount fees or charges for the license or rental of the
RSPD or for goods or services provided at the RSPD, which comprise part of Operating
Revenues, from the fees or charges authorized to be charged in such circumstances
pursuant to the applicable Annual Plan, in consideration for the use, or promise to use,
goods or services provided by Manager’s Other Businesses. The parties recognize and
acknowledge that an affiliated business of Manager maintains easement rights for the
surface parking below the RSPD, said affiliated business operates and leases the same for
profit, and that such activity is not deemed to be a conflict of interest for purposes of this
paragraph.
Attachment number 2 \nPage 8 of 22
Item # 15
00412263-14
(c) Manager shall maintain a separate set of books and records and
prepare financial statements reflecting its activities hereunder that are sufficient to enable
an auditor to audit the same on the same basis as if such activities were conducted by a
separate accounting unit or single purpose entity.
5.2 Policies and Practices. Manager shall adopt and implement
administrative, accounting, budgeting, marketing, personnel, and operational policies and
practices consistent with industry standards for trade, exhibit, and event centers of similar
size and quality.
5.3 Personnel.
(a) Employment. Subject to the terms of this Agreement, Manager
shall select, employ, promote, terminate where appropriate, supervise, direct, train, and
assign the duties of all personnel which Manager reasonably determines to be necessary
or appropriate for the operation of the RSPD (collectively, the “RSPD Employees”). All
RSPD Employees shall be employed by Manager. Owner may at any time consult or
communicate with Manager regarding any of the RSPD Employees, but Owner shall not
give orders to or otherwise interfere in the day-to-day activities of RSPD Employees
including for this purpose Shared Employees.
(b) Selection. Manager agrees to use reasonable and prudent judgment
in the training and supervision of RSPD employees to ensure that they are courteous and
efficient, and do not use improper language or act in a loud or boisterous manner while
performing duties at the RSPD. Manager agrees that it will not discriminate against any
RSPD Employee or applicant for employment for work under this Agreement because of
race, religion, color, sex, disability, national origin, ancestry, physical handicap, or age.
(c) Appearance and Training. Manager shall ensure that non-
management RSPD Employees performing the duties at the RSPD shall be neatly attired
in clean, commercially attractive uniforms. Manager shall train all such employees that
they are aware of the high standards for cleanliness, courtesy and service required.
(d) Compensation. Manager shall set the salaries and fringe benefits
of all RSPD Employees consistent with industry standards and the Annual Plan. Cost-of-
living increases shall not exceed those given by Owner to its employees. Unless
otherwise provided in the Annual Plan, no bonuses or merit raises shall be given without
the approval of Owner.
(e) Salary Costs for Full Time RSPD Employees. Although all RSPD
Employees shall be employed by Manager, Owner shall be responsible for all Salary
Costs of RSPD Employees.
(f) Salary Costs of Shared Employees. In order to provide the most
cost-effective services, the parties specifically contemplate that Manager may provide
certain of the services under this Agreement through employees and agents of Manager’s
Other Businesses (“Shared Employees”). To the extent Manager (a) incurs Salary Costs
of its Shared Employees that are allocable to operation of the RSPD and (b) Manager
Attachment number 2 \nPage 9 of 22
Item # 15
00412263-14
shall not “mark-up” or otherwise add any profit or administrative charge to such Salary
Costs, then, such Salary Costs shall be deemed to be Operating Expenses and shall be
remitted to Manager from the Operating Account the same as any other Operating
Expense. Salary Costs of a Shared Employee shall be deemed to have been fairly
allocable to RSPD operations if the proportion of the Shared Employee’s aggregate
Salary Costs for the period in question so allocated is the same the proportion of the
amount of time the Shared Employee exclusively devoted to operation of the RSPD in
relation to the total amount of time worked for the period in question.
(g) Recordkeeping. The books and records required to be maintained
by Manager pursuant to Section 7.5 hereof shall be sufficient to establish the amount of
time that any RSPD Employee spends providing services to Manager’s Other Businesses,
and the amount of time any Shared Employee expends providing services for the RSPD,
in each case as a percentage of their periodic work schedules.
5.4 Maintenance.
(a) RSPD. Manager shall (i) maintain the RSPD in good condition and repair,
and (ii) maintain, repair, and replace when necessary, furniture, fixtures and equipment
for the RSPD. Subject to the limitation of § 5.4(b), if applicable, Manager may withdraw
funds from the Capital Account to pay for Capital Expenses. Manager shall obtain
Owner’s approval prior to making any non-emergency expenditure of more than
$10,000.00 on a single maintenance item or category of Capital Expenses not otherwise
authorized by the Annual Plan.
(b) General Limitation. Except as otherwise expressly authorized herein, any
Capital Expense exceeding the budgeted amount(s) set forth in the Annual Plan for such
category of expenditure by more than 15% or the payment of which would cause the
amount then held in the Capital Account to be reduced by more than 95% of the amount
held therein as of the beginning of the Fiscal Year shall require Owner’s prior approval.
5.5 Marketing. Marketing of the RSPD shall be the obligation of the
Manager, subject to the terms of the Annual Plan.
5.6 Legal Services. Manager is authorized to engage such legal counsel as
Manager deems reasonably necessary for the ordinary operational legal matters for the
RSPD, the reasonable costs and expenses of which shall be an Operating Expense. With
the advice and consent of Owner, Manager shall institute any necessary or desirable legal
actions or proceedings to collect charges or other income of the RSPD or to enforce the
right to cancel or terminate or sue for damages under any agreement relating to the
operation of the RSPD.
5.7 Compliance with Government Rules and Regulations. Manager shall
operate the RSPD in compliance with all applicable federal, state and local laws and
insure that no activity or condition occurs on or about the RSPD in violation of any laws;
provided, however, that Manager shall have no liability nor be subject to any allegation
of default with respect to non-compliance by the RSPD with any applicable federal, state
Attachment number 2 \nPage 10 of 22
Item # 15
00412263-14
and local laws regarding the condition or use of the RSPD and the surrounding property,
including without limitation, the Americans with Disabilities Act, zoning regulations and
hazardous waste laws.
5.8 Limitation Upon Obligations. In the event that the performance of any
of Manager’s duties requiring expenditure of Owner’s funds shall be impeded by reason
of unavailability of such funds, then, Manager’s performance of such obligations shall be
excused to the extent so impeded and until such funds become available. Manager shall
be under no obligation to provide such funds from any source other than amounts then
held in the Operating Account or the Capital Account. Manager’s obligations also shall
be excused to the extent performance would be contrary to express written instructions of
Owner. Owner shall indemnify, defend, and hold Manager harmless from and against
any and all liabilities, claims, suits, fines, penalties, damages, judgments, fees, costs and
expenses (including, but not limited to attorneys’ fees and disbursements) related to the
performance of any of Manager’s duties requiring expenditure of Owner’s funds, if and
when such funds are not available to Manager.
5.9 Contracts. (a) In General. Manager is hereby authorized, without
Owner’s prior approval, to enter into contracts, in its own name or as Owner’s agent, with
vendors or service providers of its choice, provided, in addition, that the contract in
question: (i) does not have a term exceeding the lesser of one year and the then remaining
Operating Term, (ii) the aggregate annual Operating Expense attributable to the contract
does not exceed $5,000, (iii) does not authorize the vendor or service provider to use any
portion of the RSPD unless the compensation therefor is not based on the net profits
arising from such service or activity, and (iv) is not inconsistent with the applicable
Annual Plan. Manager shall promptly notify Owner of the execution of such contracts.
(b) Special Indemnity. In the event Manager, in its own name or as
agent of Owner, enters into a contract for or related to the RSPD, Owner shall indemnify,
defend, and hold Manager harmless from and against any and all liabilities, claims, suits,
fines, penalties, damages, judgments, fees, costs and expenses (including, but not limited
to attorneys’ fees and disbursements) related to the payment of, or obligations related to
such contract. This right of indemnification shall survive termination of this Agreement.
5.10 Costs of Compliance. Unless otherwise set forth in this Agreement to the
contrary, any costs related to duties imposed on Manager shall, except to the extent
incurred as a result of Manager’s gross negligence, willful misconduct or breach of this
Agreement, be at Owner’s cost, in which case the costs of such action shall be an
Operating Expense and may be paid from the Operating Account.
ARTICLE VI
BANK ACCOUNTS, PAYMENTS AND DISTRIBUTIONS
6.1 Bank Accounts. Manager shall open, at one or more banks in Augusta,
Georgia selected by Manager, a bank account for the benefit of Owner, which will serve
as an operating account for the RSPD (the “Operating Account”). and (b) a bank
Attachment number 2 \nPage 11 of 22
Item # 15
00412263-14
account for the benefit of Owner, which shall serve as a capital account for the RSPD
(the “Capital Account”), as the source of funds for Capital Expenses.
6.2 Operating Account; Payment to Owner. Manager shall deposit all
Operating Revenues into the Operating Account. All Operating Revenues, whether or
not deposited into such account, shall be solely the property of Owner. All Operating
Expenses shall be borne exclusively by Owner. Manager shall have authority to execute
checks, drafts and other items on the Operating Account to pay the Operating Expenses,
including the Management Fee. In the event the amount held in Operating Account at the
end of any quarter exceeds the amount reasonably anticipated to be necessary for the
operation of the RSPD for the succeeding quater, Manager shall distribute such excess
amount to Owner not later than fifteen days of the close of the quarter.. If at any time the
Operating Account contains less than the reasonably anticipated Operating Expenses for
a period of time not longer than the ensuing 90 days, Manager shall so advise Owner in
writing, accompanied by an (pro-forma) operating budget, that was submitted as part of
the Annual Plan or, if the Annual Plan has not yet been adopted, in Manager’s proposed
budget for the Annual Plan, and Owner shall cause such amount to be deposited into the
Operating Account within ten (10) business days of receipt of such notice. The intent of
this section is that the Operating Account shall, at all times, contain a permitted reserve
sufficient to cover Operating Expenses for the next 90 days, without regard to the future
receipt of any Operating Revenues. In the event of a deficiency in the Operating
Account, Manager may, but shall not be required to, in its sole discretion, advance funds
to meet Operating Expenses and such advances shall become immediately due from
Owner.
Manager may, but shall not be required to, in its sole discretion, advance funds for
pre-opening expenses approved by Owner. Such advances shall be reimbursed to
Manager from the first receipts from the operation of the RSPD.
6.3 Capital Improvements and Capital Account. Owner agrees to provide
all necessary funding for Capital Expenses that are reasonably necessary to maintain the
RSPD to the Standard in accordance with the Annual Plan. Fifteen percent of all net
operating revenues shall be earmarked annually by Owner for Captial Expenses until the
balance of earmarked funds is the lesser of $250,000.00 and the capital reserve approved
in the Annual Plan. Upon Manager notifying Owner in writing that a portion of such
earmarked funds are needed for payment of Capital Expenses, then Owner will within
fifteen (15) day deliver funds to Manager as necessary for the payment of Capital
Expenses and Manager will deposit such funds into the Captial Account. Such funds
shall be used for Capital Improvements for any parking decks associated or located in the
immediate proximity of the Convention Center. In the event that funds in the Capital
Account are used for capital expenditures, then in such event Manager shall resume
depositing fifteen (15%) percent of Net Operating Revenues, if any, into the Capital
Account until such time as the balance in such account is restored. Manager shall have
the right to execute checks, drafts, and other items on the Capital Account to pay Capital
Expenses in accordance with Section 5.4 of this Agreement. To the extent funds are not
available in the Capital Account which are reasonably necessary to maintain the RSPD,
Manager shall so notify Owner in writing and within thirty (30) days of such notification,
Attachment number 2 \nPage 12 of 22
Item # 15
00412263-14
Owner shall cause to be deposited into the Capital Account a sufficient amount to fund
Capital Improvements in accordance with the Standard and the Annual Plan. In the event
that performance of any of Manager's obligations requiring expenditure of Owner's funds
related to the Capital Expenses shall be impeded by reason of unavailability of such
funds, then, Manager's performance of such obligations shall be excused to the extent so
impeded and until such funds become available. Manager shall be under no obligation to
provide such funds from any source other than Net Operating Revenue or other sources
of funds provided by Owner. Manager's obligations shall also be excused to the extent
performance would be contrary to express written instructions of Owner. In the event
Owner fails to make such money available to Manager, Owner shall indemnify, defend,
and hold Manager harmless from and against any and all liabilities, claims, suits, fines,
penalties, damages, judgments, fees, costs and expenses (including, but not limited to
attorneys' fees and disbursements) related to the performance of any of Manager's duties
hereunder requiring expenditure of funds for Capital Improvements. In the event of a
deficiency in the Capital Account necessary to maintain the RSPD to the Standard and in
accordance with the Annual Plan, Manager may, but shall not be required to, in its sole
discretion, to advance funds to maintain the RSPD to the Standard and such advance shall
be immediately due and payable from Owner.
6.4 Indemnity. Debts, obligations, and other liabilities incurred by Manager
that are part of the Annual Plan or are otherwise authorized hereunder and are incurred in
the performance of its duties under this Agreement shall be deemed to be incurred on
behalf of Owner. Owner shall indemnify, defend, and hold Manager harmless from and
against any and all liabilities, claims, suits, fines, penalties, damages, judgments, fees,
costs and expenses (including, but not limited to attorneys’ fees and disbursements)
related to the payment of, or obligations related to, the Management Fee, other Operating
Expenses, and Capital Expenses. Expenses arising from the fraud or gross negligence of
Manager’s corporate office senior management personnel in the management, operation,
or maintenance of the RSPD shall not be authorized expenditures and shall not be subject
to indemnification from the Owner.
6.5 Tax Authority Audits. If, during the Operating Term or thereafter, any
applicable taxing authority assesses additional taxes of any kind with respect to the
RSPD, such additional taxes or assessments, together with any interest, penalties, fees, or
other amounts assessed related thereto, shall be Operating Expenses, together with all
costs, accounting fees, and legal fees incurred by Manager on behalf of the RSPD in
reviewing and, if necessary, challenging or negotiating such determinations. Manager
shall be authorized to pay from the Operating Account all such costs, fees, and tax
amounts determined to be due but shall otherwise have no liability therefor. This
provision shall survive any termination of this Agreement.
ARTICLE VII
BUDGETS AND ACCOUNTING
7.1 Annual Plan. Manager shall submit to Owner, for Owner's approval as a
part of Owner’s budget process, not later than ninety (90) days subsequent to the
Attachment number 2 \nPage 13 of 22
Item # 15
00412263-14
Effective Date, and at least ninety (90) days prior to the beginning of each Fiscal Year
thereafter, an annual plan for the RSPD (the “Annual Plan”), which shall include for the
ensuing Fiscal Year, the following proposed budgets and programs setting forth:
(a) Manager’s best estimate of Operating Revenues and Operating
Expenses;
(b) Manager's best estimate of Capital Expenses for RSPD;
(c) a proposed schedule of rental rates for the use of the RSPD
(including hourly, daily and monthly fee rates), and objective criteria for deviating from
such rates and fees;
(d) marketing expenses; and
(e) a summary of the prior year’s operations and such other
information Manager deems beneficial to Owner.
Following adoption of the Annual Plan, Manager covenants not to make RSPD
available for rates and fees that differ from the approved schedule of rates and fees
without prior consent of Owner. The Annual Plan attached to this Agreement covers
Fiscal Year 2012. Operating Expenses set forth in said Annual Plan shall constitute the
approved Operating Expenses, on a pro-rata basis, for the period from the date of this
Agreement through December 31, 2011. The parties acknowledge that the first Annual
Plan is based on estimates made without the benefit of operating experience. Manager
may submit a revised first Annual Plan if operating experience from the opening of the
RSPD through December 31, 2011, indicates that the first Annual Plan does not
accurately reflect anticipated revenues and expenses.
7.2 Information Sharing. [intentionally deleted].
7.3 Approval of Annual Plan. Owner shall notify Manager within thirty (30)
days of its receipt of the proposed Annual Plan if Owner has any objections to the Annual
Plan. Otherwise, the Annual Plan shall be deemed approved. If the Annual Plan is
disapproved by Owner, Manager and Owner shall enter into discussions in an attempt to
determine mutually satisfactory budgets and programs. Until the Annual Plan is
approved or deemed approved by Owner, the parties agree that Manager shall operate the
RSPD in accordance with the last previously approved or deemed approved Annual Plan.
Manager shall operate the RSPD in substantial accordance with the Annual Plan;
provided, however, Owner acknowledges and agrees with Manager that during the first
three Fiscal Years of the Operating Term, when Net Operating Revenues will be
especially difficult to predict, the Annual Plan will be only a planning tool. Furthermore,
expenses related to the RSPD vary in proportion to business volume, making budgeting
imprecise and unpredictable. During the initial three Fiscal Years, Owner authorizes
Manager to deviate from the Operating Expenses or Capital Expenses as set forth in the
Annual Plan, following notice to Owner and without any prior approval of Owner if, in
the reasonable judgment of Manager, such deviation is necessary to achieve Owner’s
objectives to operate RSPD in accordance with the Standard, but only if such change
Attachment number 2 \nPage 14 of 22
Item # 15
00412263-14
does not result in the expenditure of funds in excess of the lesser of: (i) fifteen percent
(15%) of the budgeted amount of Operating Expenses or Capital Expenses, as the case
may be in the Annual Plan and (ii) ninety-five percent (95%) of the amount then held in
the Capital Account or the Operating Account as the case may be.
7.4 Amendments of Annual Plan. Manager may notify Owner of a proposed
change to the Annual Plan. Owner shall notify Manager within thirty (30) days of its
receipt of the requested modification of any objections to the modified Annual Plan.
Otherwise, the modified Annual Plan shall be deemed approved. Owner agrees to
consider, in its reasonable judgment, modification of the Annual Plan to enable the RSPD
to be operated in accordance with the Standard.
7.5 Obligation to Provide Funding to Operate and Maintain the RSPD to
the Standard. Notwithstanding anything in this Agreement to the contrary, Owner
agrees to provide funding to Manager, whether through approval and funding of the
Annual Plan or through approval and funding of amendments to the Annual Plan, in an
amount sufficient to operate and maintain (whether such maintenance be categorized as
Capital Expenses or Operating Expenses) the RSPD. In the event Owner fails to provide
funding as required in this Section, Manager’s sole remedy shall be to terminate this
Agreement whereupon Manager shall have the rights and obligations set forth in Section
4.2 of this Agreement. After such termination, neither Manager nor Owner shall have
any further obligations to the others under this Agreement.
7.6 Books and Records. Manager shall establish and maintain for the benefit
of Owner complete, current, and accurate records and books of account reflecting all
transactions of the RSPD and of Manager with respect to the RSPD that are separate from
Manager’s Other Businesses. Manager shall make such books and records available
during normal business hours and at all other reasonable hours at the RSPD for
inspection, copying, and audit upon reasonable notice by Owner and its agents.
7.7 Financial Statements.
(a) Annual Statements. Manager shall prepare and deliver to Owner
by the 90th day after the end of each Fiscal Year the following financial statements and
reports (the “Financial Statements”) using GAAP, which are in reasonable detail
covering RSPD operations for such previous Fiscal Year: (i) balance sheet as of the last
day of such Fiscal Year, which shall reflect the balances of the Operating Account and
Capital Account as of the last day of such Fiscal Year, (ii) cash flow statement, and (iii)
profit and loss statement. The profit and loss statement will include a comparison of the
budgeted and actual revenues and expenses as well as a comparison to the prior Fiscal
Year.
(b) Quarterly Statements. On or before 30 days after the end of each
calendar quarter, Manager shall prepare and deliver to Owner a statement showing
Operating Revenue and Operating Expenses for the previous calendar quarter and
Statement of Capital Expenditures.
Attachment number 2 \nPage 15 of 22
Item # 15
00412263-14
7.8 Annual Audit. On or prior to 120 days after the end of each Fiscal Year,
Manager shall provide, at Owner’s cost and expense, a financial audit with respect to
RSPD operations to be made by an independent certified accounting firm selected by
Manager and designated in the Annual Plan.
7.9 Survival Following End of Term. Manager’s obligations under this
Article shall continue as to all Fiscal Years occurring within the Operating Term
notwithstanding that such performance may be due following the end of such term.
ARTICLE VIII
ASSIGNMENT
8.1 Assignment by Manager.
(a) Manager shall have the right, without the prior written consent of
Owner (but only upon not less than five (5) business days’ prior notice to Owner), to
assign this Agreement or any duties arising hereunder to any entity controlled by, or
under common control with, Manager, provided that (i) such case such transferee shall
have, in the reasonable judgment of Owner, expertise, personnel and other resources
sufficient to discharge its duties hereunder no less favorably than Manager has performed
the same, (ii) the assignee or transferee agrees directly with Owner to be bound by all of
Manager’s obligations under this Agreement, and (iii) Owner shall have received an
Approving Tax Opinion.
(b) In the event Manager, including for this purpose any affiliate
thereof, sells the Hotels to a third party, Owner shall elect one of the following: (i) allow
transferee to assume this Agreement and release Manager from its obligations under this
Agreement but only if Owner shall have received an Approving Tax Opinion, or (ii)
allow Manager to terminate this Agreement, without penalty.
8.2 Assignment by Owner. Owner’s obligations under this Agreement shall
not be assigned, and any purported assignment shall be void, without the prior written
consent of Manager, which consent shall not be unreasonably withheld.
ARTICLE IX
INSURANCE
Owner shall either self-insure or self-fund or provide insurance equal or greater
the following insurance requirements
9.1 General Liability Insurance. Owner shall carry comprehensive general
liability insurance, including contractual liability, personal and bodily injury, and
property damage insurance, on the RSPD, with a combined single limit in an amount
sufficient to protect Owner and Manager, but in no event will such insurance be in an
amount less than a combined single limit of $3,000,000 per occurrence. Manager shall
be named as an additional insured under such insurance. Owner shall provide Manager
Attachment number 2 \nPage 16 of 22
Item # 15
00412263-14
with a certificate of insurance evidencing such coverage no later than thirty days prior to
the commencement of the Operating Term. Owner’s insurance shall contain a clause
stating that there shall be no reduction, cancellation, or non-renewal of coverage without
giving Manager 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 Manager, and shall contain a severability of interest clause.
9.2 Property Insurance. Owner shall procure and keep in effect during the
Operating Term fire and extended coverage for the RSPD and all personal property in the
RSPD, 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,
with the replacement cost value reasonably acceptable to Manager. Such policy shall
name Owner and Manager as loss payee, mortgagee, as their interest may appear.
Owner shall provide Manager with a certificate of insurance evidencing such coverage no
later than thirty days prior to the commencement of the Operating Term.
9.3 Operational Insurance. Manager shall procure and maintain the
following insurance:
(a) Workers’ Compensation and employer’s liability insurance as may
be required under applicable laws covering all RSPD Employees, including Shared
Employees, with such deductible limits as determined by Manager;
(b) Garage Keeper’s legal liability insurance to insure against theft,
loss and damage to patron’s vehicles.
(c) Such other insurance and/or additional coverage in amounts as
Manager in its reasonable judgment deems advisable for its protection against claims,
liabilities and losses arising out of or connected with its performance under this
Agreement.
9.4 Cost and Expense. Except with respect to insurance premiums that are
paid by Owner other than with funds held in the Operating Account, insurance premiums
and any costs or expenses with respect to the insurance described in this Article shall be
an Operating Expense of the RSPD. Any reserves, losses, costs, damages or expenses
which are uninsured, or fall within deductible limits or self-insured retentions, shall be
treated as a cost of insurance and shall be an Operating Expense.
9.5 Coverage. All insurance described in this Article may be obtained by
endorsement or equivalent means under Manager’s or Owner’s blanket insurance
policies, provided that such blanket policies substantially fulfill the requirements
specified herein.
9.6 Policies and Endorsements.
(a) Where permitted, all insurance provided under this Article shall be
carried in the name of Owner, with additional insureds being Manager, the owner of any
fee or leasehold interest in the RSPD other than Owner, and the holder of the security
Attachment number 2 \nPage 17 of 22
Item # 15
00412263-14
deeds covering the RSPD, if any; 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.
(b) 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 without at least ten (10) days prior notice to Owner, Manager, any other fee or
leasehold owner of any portion of the RSPD, and any holder of indebtedness secured by
the RSPD.
(c) Owner and Manager 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. Owner and Manager further agree that each
of their insurance policies shall provide for an appropriate waiver of subrogation
reflecting this release.
9.7 Indemnification.
(a) Indemnification by Owner. Owner shall indemnify, defend, and
hold harmless Manager, its parent, its subsidiaries, and its affiliates and their respective
officers, directors, agents, and employees, from and against any and all claims,
liabilities, losses, damages, costs, and expenses of any kind or character, including
without limitation indemnity claims , court costs, reasonable attorneys’ fees, interest,
fees, and penalties, arising from or related to the management, operation, or maintenance
of the RSPD, in all cases to the fullest extent permitted by law, except to the extent such
liabilities are finally determined by a court of competent jurisdiction to have been the
result of the fraud or gross negligence of Manager’s corporate office senior management
personnel in the management, operation, or maintenance of the RSPD.
(b) Indemnification by Manager. Manager shall indemnify and hold
harmless Owner, its subsidiaries, and its affiliates, and their respective officers, directors,
agents, and employees from and against any and all claims, liabilities, losses, damages,
costs, and expenses of any kind or character, including without limitation reimbursement
of court costs, reasonable attorneys’ fees, interest, fees, and penalties charged to the
RSPD, to the extent such liabilities are finally determined by a court of competent
jurisdiction to have been the result of the fraud or gross negligence of Manager’s
corporate office personnel in the management, operation, or maintenance of the RSPD.
(c) Defense Costs. All costs and expenses, including without
limitation reasonable attorneys’ fees, of any legal proceeding that is instituted against the
RSPD, Manager, or both related to the operation, management, or maintenance of the
RSPD, including without limitation any employment-related claims of any nature, shall
Attachment number 2 \nPage 18 of 22
Item # 15
00412263-14
be charged as Operating Expenses or paid directly by Owner; provided, however, that
Manager shall reimburse Owner on demand to the extent the fraud or gross negligence of
the Manager’s corporate office senior management personnel in the management,
operation, or maintenance of the RSPD is established in such proceeding. Owner
specifically acknowledges and agrees that any party’s mere allegation or claim of a
negligent or intentional act by Manager or any officer, director, agent, or employee
thereof does not trigger any obligation of Manager under this Section and that, pending
the determination of any question as to whether Manager or any of its officers, directors,
agents, or employees are entitled to indemnification under this Section, Manager shall be
entitled to charge as Operating Expenses and pay from Operating Account all expenses of
defending or otherwise handling any claim or litigation under this Agreement.
(d) Good-faith Judgment. Notwithstanding any other provision of this
Agreement, Owner shall not make any claim against Manager based on any alleged error
of judgment if such judgment was made by Manager in good faith or based on any action
taken by Manager at the express direction of Owner.
(e) Survival. This Section shall survive Termination.
ARTICLE X
GENERAL PROVISIONS
10.1 Actions of a Party. Except for any amendment of this Agreement or
approval of an Annual Plan pursuant to Article VII hereof, each the Owner and the
Manager shall designate an individual in the Annual Plan to serve as the authorized
designee of a party, with respect to all other matters hereunder, who is authorized to take
any other actions for that party, as may be required from time to time hereunder;
provided, however, that a party may change its designee at any time by a written notice to
the other party. Unless the authorization conferred by a designation is expressly limited
by its terms, such authorization may be presumed to authorize designee to act in behalf of
a party for all other purposes of this Agreement.
10.2 Inspection of RSPD. Owner and its agents, employees, and designees
may go anywhere in the RSPD upon reasonable advance written notice to the Manager
for the purposes of inspecting the RSPD and inspecting the performance by Manager of
the terms and conditions hereof. Manager shall facilitate the access permitted under this
Section upon request.
10.3 Amendments. The terms, covenants, conditions, and provisions of this
Agreement may be modified or added to only in a writing signed by the parties hereto
provided, in addition, there shall have been delivered to Owner an Approving Tax
Opinion.
10.4 Time of the Essence. Time is of the essence.
10.5 Notices. All notices hereunder or required by law shall be sent (a) via US
Mail, postage prepaid, certified or registered mail, return receipt requested; or (b) via any
Attachment number 2 \nPage 19 of 22
Item # 15
00412263-14
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:
In case of the City to:
Augusta-Richmond County
City County Municipal Building
530 Greene Street
Augusta, Georgia 30901
Attn: City Administrator
With a copy to:
Augusta-Richmond County
Legal Department
530 Greene Street
Augusta, Georgia 30901
Attn: General Counsel
In the case of Manager to:
Augusta Riverfront, LLC
One 10th Street, Riverfront Center
Suite 340
Augusta, Georgia 30901
Attn: Mr. Paul S. Simon
With a copy to:
Hull Barrett, PC
801 Broad Street, 7th Floor
Augusta, Georgia 30901
Attn: Rand Hanna
10.6 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.
In the event of a conflict between any provision in this Agreement and in the TEE Center
RSPD CORE Agreement, this Agreement shall control.
10.7 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.
10.8 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.
10.9 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
10.10 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
Attachment number 2 \nPage 20 of 22
Item # 15
00412263-14
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
and an Approving Tax Opinion shall have been delivered to Owner.
10.11 Force Majeure. At Manager’s option, Manager’s performance under this
Agreement shall be suspended to the extent Manager 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, restrictive governmental laws or
regulations, riots, terrorism, insurrection, war or other reason of a like nature not the fault
of Manager.
10.12 Headings. Headings of Articles and Sections are inserted only for
convenience and are in no way to be construed as a limitation on the scope of the
particular Articles or Sections to which they refer.
10.13 Third Party Beneficiaries. Except with respect to Caterer, this
Agreement shall not inure to the benefit of any third parties.
[EXECUTION ON FOLLOWING PAGE]
Attachment number 2 \nPage 21 of 22
Item # 15
00412263-14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal on the day and year first above written.
Signed, sealed and delivered in the
presence of:
________________________
Unofficial Witness
________________________
Notary Public
(Notary Seal)
Augusta, Georgia
By:________________________
Its Mayor
Attest:______________________
Its Clerk of Commission
(Seal)
Signed, sealed and delivered in the
presence of:
________________________
Unofficial Witness
________________________
Notary Public
(Notary Seal)
Augusta Riverfront, LLC, a Georgia limited
liability company
By:________________________
Paul S. Simon
As its President
(Seal)
Attachment number 2 \nPage 22 of 22
Item # 15
1
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
ASSIGNMENT OF PARKING DECK MANAGEMENT AGREEMENT
THIS ASSIGNMENT OF PARKING DECK MANAGEMENT AGREEMENT (this
“Assignment”) is made as of the __ day of ______________________, 2012, by AUGUSTA
RIVERFRONT, LLC, a Georgia limited liability company (“Borrower”), to and for the benefit of
WELLS FARGO BANK, N.A., a national banking association (“Lender”), and consented and agreed to
by THE CITY OF AUGUSTA, GEORGIA (“City”).
RECITALS:
A. Lender (as successor-by-merger to Wachovia Bank, National Association, a national banking
association) has heretofore made certain loans (collectively referred to herein as the “Loans”) to
Borrower, which Loans are governed by, among other things, that certain Loan Agreement dated
September 27, 2005 entered into by and among Lender, Borrower and Guarantor (as defined in the Loan
Agreement [defined below]), as said Loan Agreement has been amended by that certain First
Modification of Loan Agreement by and among Lender, Borrower and Guarantor dated February 17,
2006, and as said Loan Agreement has been further amended by that certain Second Modification of Loan
Agreement by and among Lender, Borrower and Guarantors dated August 23, 2007 (said Loan
Agreement, as so amended, is hereinafter referred to as the “Loan Agreement”).
B. The Loans are evidenced by (i) that certain Promissory Note dated September 27, 2005 made by
Borrower payable to the order of Lender in the original principal amount of $78,500,000.00 and (ii) that
certain Promissory Note dated February 17, 2006 made by Borrower payable to the order of Lender in the
original principal amount of $13,500,000.00 (collectively, the “Note”). The Loans previously included a
revolving loan evidenced by a Second Amended and Restated Promissory Note from Borrower payable to
the order of Lender dated August 23, 2007 in the maximum principal amount of $7,000,000.00, which
revolving loan has since matured and has been satisfied and cancelled, with Borrower having no further
right to reborrow thereunder.
C. The Note and Borrower’s obligations under the Loans are secured, in part, by that certain Deed to
Secure Debt, Assignment of Rents and Leases, and Security Agreement dated September 27, 2005 made
by Borrower to Lender, recorded in the real estate records of Richmond County, Georgia (the “Official
Records”), at Book 01019, Page 1272, as the same has been amended by that certain First Modification
of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and First
Modification of Assignment of Rents and Leases dated February 17, 2006 between Borrower and Lender
and recorded in the Official Records at Book 01041, Page 2150, and as further amended by that certain
Second Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture
Filing, and Second Modification of Assignment of Rents and Leases dated August 23, 2007 between
Borrower and Lender and recorded in the Official Records at Book 01141, Page 2129 (said Deed to
Secure Debt, Assignment of Rents and Leases, and Security Agreement, as so amended, and as the same
may hereafter be amended, hereinafter collectively referred to as the “Borrower Security Instrument”),
which Borrower Security Instrument encumbers certain real and personal property owned by Borrower as
more particularly described therein, including, but not limited to, the Augusta Mariott and the Augusta
Marriott Suites hotels (the “Hotels”) (such real and personal property owned by Borrower hereinafter
referred to collectively as the “Borrower’s Property”).
D. Borrower’s obligations under the Loans are also secured by, among other things, a Guaranty
Agreement from 933 Broad Investment Co, LLC, a Georgia limited liability company (“933 Broad
Guarantor”), which is an affiliate of Borrower. The Guaranty Agreement from 933 Broad is secured by
Attachment number 3 \nPage 1 of 8
Item # 15
2
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
that certain Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing dated as of
September 27, 2005, made by 933 Broad Guarantor for the benefit of Lender (as successor-by-merger to
Wachovia Bank, National Association, a national banking association) and recorded October 14,
2005 in the Official Records in Book 01019, Page 1326, as modified and amended by that certain First
Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and
First Modification of Assignment of Rents and Leases dated February 17, 2006 and recorded in the
Official Records on March 2, 2006 in Book 0104, Page 2155, as modified and amended by that certain
Second Modification of Deed to Secure Debt, Security Agreement, Financing Statement and Fixture
Filing, and Second Modification of Assignment of Rents and Leases dated August 23, 2007 and recorded
in the Official Records on September 7, 2007 in Book 01141, Page 2119 (Deed to Secure Debt, Security
Agreement, Financing Statement and Fixture Filing, as so amended, and as the same may hereafter be
amended, hereinafter collectively referred to as the “933 Broad Security Deed”).
E. The 933 Broad Security Deed encumbers certain real and personal property owned by 933 Broad
Guarantor (the “933 Broad Property”) which is in the vicinity of the Hotels, including, but not limited
to, an office building and certain adjacent property, on some of which adjacent property a parking garage
commonly referred to as the Reynolds Street Parking Deck (the “RSPD”) is now located.
F. Contemporaneously with the execution and delivery of this Assignment, Borrower and 933 Broad
Guarantor are entering into certain transactions and agreements relating to the RSPD (collectively, the
“Parking Garage Transactions”), and in connection therewith, Borrower and Guarantor have requested
that Lender (i) release certain of the 933 Broad Property from the encumbrances of the Loan in return for
appurtenant easement rights with respect to the RSPD and (ii) make certain other modifications and
amendments to the terms of the Loans (collectively, the “Loan Modification”), such Parking Garage
Transactions and Loan Modification being more particularly described in and evidenced by that certain
Omnibus Agreement (933 Broad Parking Lot Matters) of even date herewith entered into by and among
Borrower, Guarantor and Lender.
G. As a part of the Parking Garage Transactions, Borrower, as manager, and City, as owner, are
entering into that certain Reynolds Street Parking Deck Management Agreement of even date herewith
(the “Management Agreement”), pursuant to which the City has engaged Borrower to manage the
RSPD pursuant to the terms and conditions of the Management Agreement.
H. As one of the conditions to Lender’s consent to the Loan Modification, Lender has required that
Borrower enter into this Assignment with respect to the Management Agreement, with the consent and
agreement of the City.
I. Borrower desires to enter into this Assigment for the purpose of inducing Lender to consent to the
Loan Modification, and the City has executed this Assigment for the purpose of (i) evidencing its consent
to the assignment by Borrower to Lender of the Management Agreement pursuant to the terms of this
Assignment and (ii) agreeing to be bound by the terms and provisions of Section 10 of this Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of the Loan and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Borrower agrees as follows:
1. Definitions. Capitalized terms used but not defined in this Assignment are defined in the
Loan Agreement.
Attachment number 3 \nPage 2 of 8
Item # 15
3
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
2. Assignment. As security for the Note and all other obligations and agreements of
Borrower with respect to the Loans (the “Obligations”), Borrower assigns to Lender and grants Lender a
security interest in and to all of Borrower’s right, title and interest in and to the Management Agreement,
including the right to collect and retain all sums that may become payable to Borrower under the
Management Agreement.
3. Performance by Borrower. Notwithstanding such assignment, Borrower shall continue
to be obligated to perform its obligations under the Management Agreement to the same extent as though
this Assignment had not been made. By acceptance of this Assignment, Lender is not assuming any
obligation of Borrower under the Management Agreement.
4. Authority of Lender. Upon the occurrence of an Event of Default under the Loan
Documents, Borrower does hereby authorize and empower Lender to enforce the Management
Agreement, to exercise any and all rights of Borrower thereunder, and to collect and retain all sums that
may become payable to Borrower under the Management Agreement and Borrower does hereby direct
and authorize each and all of the contractual obligors of Borrower under the Management Agreement to
(i) pay to Lender all amounts that may become payable under the Management Agreement and (ii) to
perform any obligations on its or their part to be performed under the Managmeent Agreement, upon
demand for performance thereof by Lender. Borrower shall have no claim against the City for any
amounts paid by the City to Lender following demand by Lender.
5. Power. The sole signature of Lender shall be sufficient for the exercise of any rights
under this Assignment.
6. Representations. Borrower hereby covenants and warrants that it has not executed any
prior assignment or pledge of the Management Agreement, nor performed any act or executed any other
instrument which might prevent Lender from operating under any of the terms and conditions of this
Assignment, or which would limit Lender in such operation.
7. Restrictions. Borrower hereby agrees that so long as any of the Obligations remain
outstanding, without the prior written consent and approval of Lender in each instance, Borrower will not
assign, pledge, hypothecate or otherwise encumber any of its rights under the Management Agreement.
8. Other Obligations. Borrower agrees that at its sole cost and expense it (i) will duly and
punctually perform and comply in all material respects with any and all representations, warranties,
covenants, terms and provisions to be performed or complied with by it under the Management
Agreement; (ii) will not terminate or amend any material terms or provisions of the Management
Agreement without the prior written consent of Lender; (iii) will give notice to Lender of any notice
received by Borrower of any default by Borrower under the terms of the Management Agreement or
which indicates that the City is terminating the Management Agreement.
9. No Obligation of Lender; Liability of Lender; Indemnification. Lender shall not, by
reason of this Assignment or the exercise of its rights or remedies hereunder, (a) be obligated to perform
or discharge, or be liable or responsible for, any obligation, duty or liability of Borrower under the
Management Agreement; or (b) be liable to governmental authorities, contractors or any parties under the
Management Agreement by reason of any default by any party under the Management Agreement; or (c)
be obligated to take any action under or with respect to the Management Agreement or to incur any
expense with respect to the Management Agreement or the RSPD; or (d) be obligated to appear in or
defend any action or proceeding relating to the Management Agreement or the RSPD; or (e) be, or be
construed to be, a mortgagee in possession of the RSPD or any part thereof; or (f) be liable in any way for
Attachment number 3 \nPage 3 of 8
Item # 15
4
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
any injury or damage to person or property sustained by any person in or about the RSPD; or (g) be
responsible or liable for the control, care, management or repair of the RSPD or any waste committed on
the RPSD by contractors or any other parties under the Management Agreement or any other parties or
for any dangerous or defective condition of the RSPD, or for any negligence in the management, upkeep,
repair or control of the RSPD resulting in loss, injury or death to any party under the Management
Agreement or any tenant, licensee, employee, or stranger with respect to the RSPD. Except to the extent
of any Claims (defined below) directly resulting from Lender's gross negligence or willful misconduct,
Borrower hereby agrees to indemnify and hold Lender harmless from and against, and reimburse Lender
for, all claims, demands, liabilities, losses, damages, causes of action, judgments, penalties, costs, and
expenses (including without limitation, reasonable attorney’s fees) ("Claims") which may be imposed
upon, asserted against or incurred or paid by Lender by reason of this Assignment or the exercise of its
rights or remedies hereunder. For purposes of this Section, the term “Lender” shall include the directors,
officers, partners, employees and agents of Lender and any persons or entities owned or controlled by,
owning or controlling, or under common control or affiliated with Lender. The foregoing releases and
indemnities shall not terminate upon release or other termination of this Assignment. Any amount to be
paid under this Section by Borrower to Lender shall be a demand obligation owing by Borrower to
Lender, shall bear interest from the date such amount becomes due until paid at the Default Rate (as
defined in the Note) and shall be secured by the Borrower Security Instrument, the 933 Broad Security
Instrument and by any other instrument securing the Note.
10. Agreement of Borrower and the City Regarding the RSPD. Borrower and the City
agree that, in the event, for any reason, Lender or any other party acquires the Borrower’s Property and/or
the 933 Broad Property pursuant to a foreclosure of any or all of the Borrower’s Property and/or the 933
Broad Property, either judicially or by power of sale or by deed-in-lieu of foreclosure or by any other
means (any of the foregoing hereinafter referred to as a “Succession”; and Lender or any other party
succeeding to the interest of Borrower or 933 Broad Guarantor (or either of them) pursuant to a
Succession being hereinafter referred to as a “Successor”), all of the easements, rights and obligations of
Borrower created pursuant to the Management Agreement (collectively, the “Management Rights”)
shall, if foreclosed by Lender and elected by Successor (it being understood that Successor shall have no
obligation to so elect) as evidenced by written notice from Successor to the City of such election
delivered within ten (10) business days following such Succession, be binding upon and shall inure to the
benefit of Successor; provided, however, that the consent of the City shall be required prior to Successor’s
succession to the Management Rights, which consent shall not be withheld, conditioned or delayed so
long as such Successor, or its designee, shall have, in the reasonable discretion of the City, expertise,
personnel and other resources sufficient to discharge the Management Rights no less favorably than
Borrower has performed same. Borrower, and the City further agree that in the event that the City does
not consent to Successor’s succession to the Management Rights within fifteen (15) Business Days
(defined below) following receipt by the City of Successor’s election to assume the Management Rights
(the “Outside Date”), then, effective as of the Outside Date, the Management Agreement and the
Management Rights created pursuant to the Management Agreement shall terminate and be of no further
force and effect, and the City and Borrower agree that neither Borrower nor any affiliate of Borrower will
thereafter be engaged to manage or otherwise operate or control the RSPD until all Obligations under the
Loans have been paid and satisfied in full.
11. Further Assurances. Borrower agrees from time to time to execute, acknowledge and
deliver all such instruments and to take all such action for the purpose of further effectuating this
Assignment and the carrying out of the terms hereof as may be requested by Lender.
12. No Release. Neither the execution of this Assignment nor any action or inaction on the
part of Lender under this Assignment shall release Borrower from any of its obligations under the
Attachment number 3 \nPage 4 of 8
Item # 15
5
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
Management Agreement or constitute an assumption of any such obligations on the part of the Lender.
No action or failure to act on the part of Borrower shall adversely affect or limit, in any way, the rights of
Lender under this Assignment or, through this Assignment, under the Management Agreement. Neither
the existence of this Assignment nor the exercise of Lender’s privilege to collect or enforce the
Management Agreement hereunder shall be construed as a waiver by Lender or its successors and assigns
of the right to enforce payment of the Obligations in strict accordance with the terms and provisions of the
Note and other Loan Documents.
13. Notices. All notices or other written communications hereunder shall be deemed to have
been properly given (i) upon delivery, if delivered in person or by facsimile transmission with receipt
acknowledged by the recipient thereof, (ii) one (1) Business Day (hereinafter defined) after having been
deposited for overnight delivery with any reputable overnight courier service, or (iii) three (3) Business
Days after having been deposited in any post office or mail depository regularly maintained by the U.S.
Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
In case of the City to:
Augusta-Richmond County
City County Municipal Building
530 Greene Street
Augusta, Georgia 30901
Attn: City Administrator
With a copy to:
Augusta-Richmond County
Legal Department
530 Greene Street
Augusta, Georgia 30901
Attn: General Counsel
In the case of Borrower to:
Augusta Riverfront, LLC
One 10th Street, Riverfront Center
Suite 340
Augusta, Georgia 30901
Attn: Mr. Paul S. Simon
With a copy to:
Hull Barrett, PC
801 Broad Street, 7th Floor
Augusta, Georgia 30901
Attn: Rand Hanna
In the case of Lender to:
Wells Fargo, Bank, N.A.
2030 Main Street, Suite 800
Irvine, California 92614
Attention: Kim Taylor, Loan
Administrator
With a copy to:
Seyfarth Shaw LLP
1075 Peachtree Street, N.E.
Suite 2500
Atlanta, Georgia 30309
Attention: Paul M. Baisier, Esq.
or addressed as such party may from time to time designate by written notice to the other parties. For
purposes of this Assignment, the term “Business Day” shall mean a day on which commercial banks are
not authorized or required by law to close in New York, New York. Any party by notice to the others
may designate additional or different addresses for subsequent notices or communications.
14. General Provisions.
Attachment number 3 \nPage 5 of 8
Item # 15
6
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
(a) This Assignment shall be binding upon and shall inure to the benefit of the successors
and assigns of the parties hereto.
(b) This Assignment is a Loan Document as defined in the Loan Agreement.
(c) This Assignment shall be deemed to be a contract entered into pursuant to the laws of the
State of Georgia and shall in all respects be governed, construed, applied and enforced in accordance with
the laws of the State of Georgia.
15. WAIVER OF JURY TRIAL. BORROWER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM FILED BY BORROWER OR LENDER, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
ASSIGNMENT, THE LOAN EVIDENCED BY THE NOTE, THE LOAN DOCUMENTS OR ANY
ACTS OR OMISSIONS OF LENDER IN CONNECTION THEREWITH.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES ON FOLLOWING PAGE]
Attachment number 3 \nPage 6 of 8
Item # 15
Borrower Signature Page
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
IN WITNESS WHEREOF, Borrower caused this Assignment to be executed as of the day and
year first above written.
BORROWER:
AUGUSTA RIVERFRONT, LLC, a Georgia
limited liability company
By: ______________________________
Name: ______________________________
Title: ______________________________
[CONSENT AND AGREEMENT OF CITY SIGNATURE PAGE FOLLOWS]
Attachment number 3 \nPage 7 of 8
Item # 15
City Signature Page
Augusta Riverfront, LLC
Assignment of Parking Deck Management Agreement
00495403-3
CONSENT AND AGREEMENT OF CITY
By its execution below, the City of Augusta, Georgia joins in the execution of this
Assignment for the purpose of evidencing its consent to the foregoing Assignment of Parking
Deck Management Agreement (“Assignment”) by Augusta Riverfront, LLC to and for the
benefit of Wells Fargo Bank, N.A., and to evidence its agreement to be bound by the the
provisions of Section 10 of the foregoing Assignment.
CITY:
AUGUSTA, GEORGIA
By:
Its Mayor
Attest:
Its Clerk of Commission
[SEAL]
Attachment number 3 \nPage 8 of 8
Item # 15
1
00437404-4
Hull Barrett Draft 5/16/12
Version 4
___________________________________________________________________________________
Space above this line for recorder’s use
DEED TO AIR RIGHTS PARCEL
THIS INDENTURE, made this ___ day of ____________, 2012, by and between 933 BROAD
INVESTMENT CO., LLC, a Georgia limited liability company, as party of the first part (herein called
“Grantor”), and AUGUSTA, GEORGIA, a public body corporate and politic of the State of Georgia, as party
of the second part (herein called “Grantee”) (the words “Grantor” and “Grantee” shall include their respective
heirs, successors and assigns where the context requires or permits);
W I T N E S S E T H:
GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid at
and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted,
bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien, convey
and confirm unto said Grantee, all those property rights lying and being in Augusta, Richmond County,
Georgia, and being more particularly described on Exhibit “A” attached hereto and by this reference made a
part hereof, together with any and all improvements, and fixtures located thereon or attached thereto, and all
rights, easements and benefits appurtenant thereto (hereinafter referred to as the “Property”), subject to current
taxes and assessments not yet due and payable, all easements, rights of way, covenants, conditions, restrictions,
and other matters of record, zoning ordinances, rights of tenants and parties in possession and any state of facts
that would be disclosed by a current accurate survey of the Property ("Permitted Encumbrances").
TO HAVE AND TO HOLD the Property to the same being, belonging, or in anywise appertaining, to
the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE.
Attachment number 4 \nPage 1 of 3
Item # 15
2
00437404-4
EXECUTED under seal the day and year first above written.
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)
Attachment number 4 \nPage 2 of 3
Item # 15
3
00437404-4
Exhibit “A”
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 _____ # ____.
Grantor reserves title to all portions of said Tract 3 not contained within the air space described above.
Portion of TMP Nos. 037-3-066-01-0; 037-3-066-00-0; 037-3-177-00-0; 037-3-069-00-0; and 037-3-
070-00-0.
Attachment number 4 \nPage 3 of 3
Item # 15
00428222-10
Version 10 – Hull Barrett Comments 1-6-12
CONFERENCE CENTER PARKING LEASE
BETWEEN
AUGUSTA, GEORGIA
a political subdivision of Georgia,
AS LANDLORD
AND
AUGUSTA RIVERFRONT, LLC
a Georgia limited liability company,
AS TENANT
DATED AS OF
_________________, 2012
Attachment number 5 \nPage 1 of 15
Item # 15
00428222-10
CONFERENCE CENTER PARKING LEASE
THIS CONFERENCE CENTER PARKING LEASE (this “Lease”) is entered
into as of the ____ day of ____________, ___________ (the “Effective Date”), by and between
Augusta, Georgia, a political subdivision of Georgia, as landlord (“Landlord”), and Augusta
Riverfront, LLC, a Georgia limited liability company, as tenant (“Tenant”).
1. LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby
takes from Landlord in consideration of the covenants and agreements in this Lease, the
premises (the “Demised Premises”) located north of Reynolds Street, between 9th and 10th
Streets in Augusta, Georgia, and consisting of (i) the surface parking lot located on Parcel “N”
containing 1.89 acres, more or less, on that Compiled Map for Augusta Riverfront Limited
Partnership by John Thomas Attaway, Georgia RLS No. 2512, dated January 19, 1999, revised
June 1, 1999, and recorded in the Office of the Clerk of Superior Court of Augusta-Richmond
County, Georgia on June 22, 1999, in Reel 648, pages 39-44, and (ii) that parking deck
containing approximately _____ parking spaces and being located on a portion of Parcels “P”
and “P-1” on said Compiled Map, together with all improvements located thereon.
2. OPERATING TERM AND USE. The initial term of this Agreement (the
“Operating Term”) shall be for a period commencing on the Effective Date and terminating on
the five (5) year anniversary of the Effective Date. Notwithstanding the foregoing, this
Agreement shall be binding on the date it is signed by Landlord and Tenant and provisions of
this Agreement shall survive the Operating Term to the extent specifically set forth in this
Agreement.
Landlord, in its sole discretion, may elect, by written notice to Tenant, within 60 days
from the expiration of the initial Operating Term of this Agreement, to renew the initial
Operating Term of this Agreement, for an additional term of five (5) years. In the event that
Landlord does not elect to renew the term of this Agreement and solicits requests for proposals
(“RFP”) for the operation of the Demised Premises, then in such event Tenant has have the right
to meet the terms and conditions of the RFP of the entity that is deemed to be most qualified to
operate the Demised Premises, If Tenant agrees to the terms and conditions contained in such
RFP, then this Agreement shall be renewed, subject to modification to incorporate any terms and
conditions consistent with accepted RFP, and right of first refusal shall be continue in effect.
Should Tenant not elect to operate the Demised Premises pursuant to the terms and conditions of
the accepted RFP, then in such event Tenant shall have no further right to operate the Demised
Premises or the parking deck owned by Landlord and located at the northwestern intersection of
Reynolds Street and James Brown Boulevard in Augusta, Georgia (the “RSPD”) [upon
expiration of the Reynolds Street Parking Deck Management Agreement of even date entered
into by and between Landlord and Augusta Riverfront, LLC (the “RSPD Agreement”)],
notwithstanding any prior vote of the Augusta, Georgia Commission to designate Augusta
Riverfront, LLC as the operator of the Demised Premises or the RSPD.
Tenant may use the Demised Premises as parking deck open to the public and/or
exclusively for the use of Convention Center guests and its hotel patrons, and no other (the
“Permitted Uses”).
Attachment number 5 \nPage 2 of 15
Item # 15
00428222-10
3. RENT AND ACCEPTANCE OF DEMISED PREMISES.
For purposes of this section “Operating Income” shall mean the gross revenues generated
from the operation of the Demised Premises including, but not limited to, the following: (a) sums
collected by the Tenant from the rental of space for the parking and storage of motor vehicles
whether on an hourly, daily, weekly, or monthly basis, less all refunds, and credit card fee
discounts (sales tax, use tax, excise tax, occupancy tax, gross receipts tax, or other taxes assessed
upon or attributable to said receipts shall be paid directly to the taxing entity involved and are not
be included in the definition of gross revenues); (b) on-site advertising revenues; (c)
reimbursable event expenses; (d) all other miscellaneous revenue from the operation of the
Demised Premises; and (e) any and all revenues generated by or associated with any marquee
advertising (if such advertising is permitted by Landlord).
For purposes of this section “Operating Expenses” shall mean all expenses required to be
incurred in order to operate and manage the Demised Premises, including, but not limited to the
following: (a) salary costs of employees of Tenant (so long as such salary costs are
commensurate with the salary costs (as such term as defined in that certain RSPD Agreement)
associated with the operation of the RSPD and Shared Employees (as such term is defined in the
RSPD Agreement); (b) operating supplies; (c) utility and telephone charges; (d) repair and
maintenance costs; (e) equipment rental costs; (f) insurance costs related to the operation of the
Demised Premises (but not performance or fidelity bonds); (g) security costs; (h) cleaning
expenses; (i) cost of reimbursable event expenses; (j) the cost of obtaining an audited financial
statements required hereunder; (k) maintenance agreements; and (l) any other expenses incurred
in the operation of the Demised Premises that would be considered operating expenses under
GAAP. Operating Expenses shall not include debt service on any borrowing.
For purposes of this section “Net Income” shall be calculated as Operating Income less
Operating Expenses.
A. Base Rent. During the term of this Agreement and any extensions, Tenant
shall pay to Landlord an annual rental of $50,000.00, payable in equal monthly installments the
first of such installments being due and payable on the Effective Date. Such annual rent shall
be adjusted annually on the anniversary of the Effective Date, upward but not downward, by the
lesser of (i) one half (1/2) of the cumulative percentage increase in the Consumer Price Index
for all urban consumers (CPI-U) (All Items 1982-84=100) since the last rate increase at the
RSPD, or (ii) the percentage increase in maximum daily parking rates during such year for
parking spaces in the RSPD.
B. Tenant Income. After payment of Base Rent and Operating Expenses,
Tenant shall be entitled to receive the lesser of all of the Net Income from the operation of the
Demised Premises or $25,000.00.
C. Additional Rent. In addition to the Base Rent and after payment of the
Operating Expenses and the Tenant Income, Tenant shall pay to Landlord as additional rent an
amount equal to the lesser of (i) the operating loss from the operation of the RSPD, if any, or
(ii) Net Income in excess of Base Rent and Tenant Income.
Attachment number 5 \nPage 3 of 15
Item # 15
00428222-10
D. Surplus Income. In the event that there remains Net Income after payment
of the Base Rent, Operating Expenses, Tenant Income, and Additional Rent, such remaining
Net Income will be divided equally between Landlord and Tenant.
E. Financial Statements.
(a) In order to determine Net Income, Tenant shall prepare and deliver to
Landlord by the 90th day after the end of each calendar year during the term of this Agreement
the following financial statements and reports for the operation of the Demised Premises for the
previous calendar year, which shall be in reasonable detail and shall be prepared in accordance
with GAAP: (i) balance sheet as of the last day of such calendar year (ii) cash flow statement,
and (iii) profit and loss statement. The profit and loss statement will include a comparison to the
prior calendar year and a comparison to the budgeted amounts for the prior calendar year.
(b) On or prior to 120 days after the end of each calendar year, Tenant shall
provide, at Tenant’s cost and expense, a financial audit with respect to the operations of the
Demised Premises for the previous calendar year to be made by an independent certified
accounting firm selected by Tenant and approved by Landlord, with such approval not to be
unreasonably withheld.
4. DEMISED PREMISES REPAIRS AND MAINTENANCE.
A. Landlord represents and warrants that during the Term, Landlord shall
maintain the structure of the Demised Premises, at its sole cost and expense, in good condition
and shall perform all necessary maintenance, repair, and replacement to the Demised Premises
including, but not limited to: (i) maintaining the integrity of the structure and surface of all
paved areas such that there are no pot holes or other conditions that may compromise its utility
or safety of the Demised Premises; (ii) maintaining the foundation, floors, walls, all exterior
utility lines and pipes to the point of entry into the Demised Premises; (iii) maintaining all other
structural portions of the Demised Premises; and (iv) making any other repair or replacement
that is considered to be capital in nature under Generally Accepted Accounting Principles. All
repairs, restorations, or payments which are obligations of Landlord, shall be completed or
made within a reasonable time. Landlord has the right but not responsibility to enter the
Demised Premises periodically, at any reasonable time during Tenant’s normal business hours,
and upon reasonable advance notice to Tenant, to inspect the condition of the Demised Premises
and to make repairs. Any repairs or other work done by Landlord shall be performed so as to
cause the least interference possible with Tenant’s operation.
B. Tenant shall be responsible for re-striping of the deck and surface parking
areas, maintenance and repair of traffic control devices, cleaning of the parking areas,
landscaping of grassed and unpaved areas, and routine maintenance and repair of a non-capital
nature under Generally Accepted Accounting Principles. All repairs, restorations, maintenance
or payments which are obligations of Tenant shall be completed or made within a reasonable
time. For purposes of this paragraph, “pro-rata share” means the proportion of (i) the number of
parking spaces in the parking deck on Demised Premises to (ii) the total number of parking
spaces in the RSPD plus the number of parking spaces in the parking deck on the Demised
Attachment number 5 \nPage 4 of 15
Item # 15
00428222-10
Premises combined. With respect to software costs for traffic control devices, Landlord shall
pay the same in connection with the RSPD, and Tenant shall reimburse the pro-rata share of
such costs. With respect to any leased equipment used for the Demised Premises and the
RSPD, Tenant shall pay the pro-rata share of such lease payments. With respect to any
equipment owned by Landlord but used for both the RSPD and the Demised Premises, Tenant
shall pay a fair rental rate for the use of said equipment, as set forth in the Annual Plan in effect
for the RSPD Management Agreement.
5. FIXTURES AND EQUIPMENT. Landlord shall deliver the Demised Premises
with lighting, electrical and traffic control equipment in good working condition.
6. INSURANCE AND INDEMNIFICATION
6.1 General Liability Insurance. Tenant shall carry comprehensive general
liability insurance, including contractual liability, personal and bodily injury, and
property damage insurance, on the Demised Premises, with a combined single limit in an
amount sufficient to protect Landlord and Tenant, but in no event will such insurance be
in an amount less than a combined single limit of $3,000,000 per occurrence. Landlord
shall be named as an additional insured under such insurance. Tenant shall provide
Landlord with a certificate of insurance evidencing such coverage no later than 10 days
prior to the commencement of the Operating Term. Tenant’s insurance shall contain a
clause stating that there shall be no reduction, cancellation, or non-renewal of coverage
without giving Landlord 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 Landlord, and shall contain a severability of interest clause.
6.2 Property Insurance. Landlord shall maintain property insurance with
respect to the Demised Premises in accordance with Section 4.5 of the Amended and
Restated Construction, Operating and Reciprocal Easement Agreement dated June 1,
1999, and recorded in the Office of the Clerk of Superior Court of Richmond County,
Georgia at Realty Reel 648, page 45, as amended by that First Amendment to Amended
and Restated Construction, Operating and Reciprocal Easement Agreement dated
December 20, 1999, and recorded in the Office of the Clerk of Superior Court of
Richmond County, Georgia at Book 673, page 711 (the “CORE Agreement”) .
6.3 Operational Insurance. Tenant shall procure and maintain the following
insurance:
6.3.1 Workers’ Compensation and employer’s liability insurance as may
be required under applicable laws covering all Tenant’s Employees, including
Shared Employees, with such deductible limits as allowed by law;
6.3.2 Garage keeper’s legal liability insurance to insure against theft,
loss and damage to patron’s vehicles.
6.3.3 Such other insurance and/or additional coverage in amounts as
Tenant in its reasonable judgment deems advisable for its protection against
Attachment number 5 \nPage 5 of 15
Item # 15
00428222-10
claims, liabilities and losses arising out of or connected with its performance
under this Agreement.
6.3.4 Tenant, at Tenant’s sole cost and expense, may, but shall not be
obligated to, carry insurance insuring its trade fixtures, equipment, inventory and
such other items as Tenant, from time to time, deems necessary or appropriate.
6.4 Cost and Expense. Each party will be responsible for the payment of
insurance premiums it is required to obtain under the terms of the this agreement. In
addition, Landlord shall have the right to self-insure or self-fund for any requirements
provided herein.
6.5 Coverage. All insurance described in this Article may be obtained by
endorsement or equivalent means under Landlord’s or Tenant’s blanket insurance
policies, provided that such blanket policies substantially fulfill the requirements
specified herein.
6.6 Policies and Endorsements.
6.6.1 Where permitted, all general liability and operational insurance
provided under this Article shall be carried in the name of Tenant, with additional
insureds being Landlord, the owner of any fee or leasehold interest in the
Demised Premises other than Landlord, and the holder of the security deeds
covering the Demised Premises, if any; 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.
6.6.2 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 without at least ten (10) days prior notice to Landlord, Tenant, any
other fee or leasehold owner of any portion of the Demised Premises, and any
holder of indebtedness secured by the Demised Premises.
6.6.3 Landlord and Tenant further agree that each of their insurance
policies shall provide for an appropriate waiver of subrogation reflecting the
mutual waiver of subrogation rights set forth in Section 20 of this Lease.
6.7 Indemnification.
6.7.1 Indemnification by Tenant. Tenant shall indemnify, defend, and
hold harmless Landlord, its Mayor, Commissioners, administrators, agents, and
employees, and successors from and against any and all claims, liabilities, losses,
damages, costs, and expenses of any kind or character, including without
limitation indemnity claims, court costs, reasonable attorneys’ fees, interest, fees,
Attachment number 5 \nPage 6 of 15
Item # 15
00428222-10
and penalties, arising from or related to the management, operation, or
maintenance of the Demised Premises, in all cases to the fullest extent permitted
by law, except to the extent such liabilities are finally determined by a court of
competent jurisdiction to have been the result of the fraud or gross negligence of
Landlord’s Mayor, Commissioners, or senior management personnel in the
management, operation, or maintenance of the Demised Premises.
6.7.2 Indemnification by Landlord. Landlord shall indemnify and hold
harmless Tenant, its subsidiaries, and its affiliates, and their respective officers,
directors, agents, and employees from and against any and all claims, liabilities,
losses, damages, costs, and expenses of any kind or character, including without
limitation reimbursement of court costs, reasonable attorneys’ fees, interest, fees,
and penalties charged to the Demised Premises, to the extent such liabilities are
finally determined by a court of competent jurisdiction to have been the result of
the failure of Landlord to fulfill its obligations under this Lease or the fraud or
gross negligence of Landlord’s Mayor, Commissioners or senior management
personnel in the management, operation, or maintenance of the Demised
Premises.
6.7.3 Defense Costs. All costs and expenses, including without
limitation reasonable attorneys’ fees, of any legal proceeding that is instituted
against the Demised Premises, Landlord, or both related to the operation,
management, or maintenance of the Demised Premises, including without
limitation any employment-related claims of any nature, shall be paid directly by
Tenant; provided, however, that Landlord shall reimburse Tenant on demand to
the extent the fraud or gross negligence of the Landlord’s Mayor, Commissioners
or senior management personnel in the management, operation, or maintenance of
the Demised Premises is established in such proceeding. Tenant specifically
acknowledges and agrees that any party’s mere allegation or claim of a negligent
or intentional act by Landlord or any officer, director, agent, or employee thereof
does not trigger any obligation of Landlord.
6.7.4 Good-faith Judgment. Notwithstanding any other provision of this
Agreement, Landlord shall not make any claim against Tenant based on any
alleged error of judgment if such judgment was made by Tenant in good faith or
based on any action taken by Tenant at the express direction of Landlord.
6.7.5 Survival. This Section shall survive Termination.
7. ENTRANCES. Tenant shall have unrestricted use and access to all entrances,
passageways, and access lanes to the Demised Premises and easements adjacent thereto.
Landlord shall not permit or allow any changes to easements, the entrances, passageways, curb
cuts and delivery lanes on or benefiting the Demised Premises without the prior written consent
of Tenant.
Attachment number 5 \nPage 7 of 15
Item # 15
00428222-10
8. UTILITIES. Tenant shall pay for all utilities used by it in the Demised Premises
during the Term of this Lease.
9. TAXES. The parties anticipate that ad-valorem property taxes will not be
assessed with respect to the Demised Premises. In the event of such assessment, Tenant shall be
responsible for payment of the same. Tenant shall be responsible for all taxes arising from
Tenant’s use of the Demised Premises.
10. ASSIGNMENT AND SUBLETTING. This Agreement is not assignable by
Tenant without the prior written consent of Landlord, except that Tenant shall have the right,
without any prior written consent (but only upon not less than five (5) business days’ prior notice
to Landlord), to assign this Agreement or any duties arising hereunder to any entity controlled
by, or under common control with, Tenant, provided that in such case such transferee shall have,
in the reasonable judgment of Landlord, expertise, personnel and other resources sufficient to
discharge its duties hereunder no less favorably than Tenant has performed the same. Such
assignment shall be effective only if the assignee or transferee agrees to be bound by all of
Tenant’s obligations under this Agreement. In the event Tenant, including for this purpose any
affiliate thereof, sells the hotels located adjacent to the Demised Premises to a third party,
Landlord shall either (a) allow transferee to assume this Agreement and release Landlord from its
obligations under this Agreement, or (b) terminate this Agreement.
11. SIGNS. No signs (other than directional or parking related signs) shall be affixed
to the Demised Premises without the prior written consent of Landlord.
12. CONDITION OF PREMISES: COMPLIANCE WITH LAWS.
A. Tenant shall comply in all material respects with all Laws, as such term is
defined below, related to Tenant’s particular use of the Demised Premises and with which only
the occupant can comply, such as laws governing maximum occupancy, workplace smoking,
and illegal business operations; the obligation to comply in every other case and also those
cases where such Laws require repairs, alterations, changes or additions to the Demised
Premises, or any part thereof, not caused by Tenant’s particular use thereof, is expressly
assumed by Landlord. Notwithstanding anything to the contrary set forth in this Lease, Tenant
shall not be required to construct or pay the cost of complying with any requirements resulting
from Laws requiring construction of improvements in the Demised Premises which are properly
capitalized under general accounting principles, unless such compliance is necessitated solely
because of Tenant’s particular use of the Demised Premises. The term “Laws” shall mean all
laws, statutes, governmental ordinances, rules and regulations and orders with respect to the use
and occupancy of the Demised Premises of any municipal, county, state, federal, or other
government agency or authority have jurisdiction over the parties to this Lease or the Demised
Premises, or both, in effect either at the Effective Date of this Lease or any time during the
Term.
B. Landlord represents and warrants that at the commencement of the Term,
the Demised Premises shall conform to all requirements of encumbrances to Landlord’s title,
and all Laws applicable thereto.
Attachment number 5 \nPage 8 of 15
Item # 15
00428222-10
13. DAMAGE TO DEMISED PREMISES. Section 8.2 of the CORE Agreement is
incorporated in this Lease by reference and shall govern issues of damage to the Demised
Premises.
14. ALTERATIONS. Tenant agrees not to make any structural alterations or
additions to the Demised Premises without first obtaining the Landlord’s written consent, which
consent shall not be unreasonably withheld.
15. MECHANICS LIENS. Tenant shall not allow, and Landlord shall not be
responsible for, any mechanics liens filed against the Demised Premises arising from work
performed, or materials supplied to the Demised Premises by Tenant or Tenant’s agents,
employees, contractors, subcontractors or materialmen.
16. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT. Tenant
covenants that the Demised Premises will at all times, at Tenant’s sole cost and expense,
conform to the applicable provisions of the Americans with Disabilities Act of 1990 (“ADA”)
(Pub. L 101-36), and the ADA Accessibility Guidelines for Buildings and facilities as issued and
amended by the U.S. Architectural and Transportation Barriers Compliance Board (56 F.R.
35455 et. seq.). Provided however, that changes, improvements or installations that would be
considered capital in nature and not operational shall be paid by Landlord. By way of example, a
change in the width of parking spaces or the number of handicap accessible spaces would be
operational and the responsibility of Tenant, but the addition of ramps or changes in the width of
doorways would be capital in nature and the responsibility of Landlord.
17. CONDEMNATION. In the event the Demised Premises are taken in
Condemnation Proceedings, Tenant may cancel the Lease without further liability to Landlord.
In the event any part of the Demised Premises, including all or part of rights-of-way adjoining
the Demised Premises, or approaches to the Demised Premises, are taken in Condemnation
Proceedings so that in the reasonable business judgment of Tenant the Demised Premises
remaining would be unsatisfactory for Tenant’s business operation, Tenant may cancel this
Lease or, at its option, retain that portion of the Demised Premises not taken. In the event Tenant
retains the Demised Premises, Landlord will promptly and with due diligence restore the
remaining premises to proper tenantable condition. Until the Demised Premises are restored to
proper tenantable condition rent shall abate. Thereafter, rent shall be reduced in proportion to
the amount of land and building area lost, or, if Tenant shall elect, in proportion to the effect of
the loss of such area on Tenant’s business. In the event that the laws governing the
Condemnation Proceedings provide separate compensation/benefits for lessees, Tenant shall be
entitled to such compensation and/or benefits provided that it does not diminish any award or
right to which Landlord is entitled. For purposes of this Lease, the term “Condemnation
Proceedings” shall mean a governmental taking of all or any part of the Demised Premises, and
shall include conveyances and grants made in anticipation of or in lieu of Condemnation
Proceedings.
18. TENANT’S DEFAULT. If Tenant defaults in the performance of any obligation
under this Lease, Landlord shall give notice to Tenant specifying the nature of the default.
Attachment number 5 \nPage 9 of 15
Item # 15
00428222-10
A. If Tenant does not, within thirty (30) days after receipt of the notice, cure
the default, or, if the default is of a nature that it cannot reasonably be cured within a period of
thirty (30) days, and Tenant does not commence the cure within the thirty (30) day period and
proceed thereafter with reasonable diligence and in good faith to cure the default, then after the
expiration of the thirty (30) day period Landlord shall have the right to pursue its legal
remedies.
B. If Tenant does not, within fifteen (15) days after receipt of the notice, cure
a default in the payment of rent or other charges properly due to Landlord, then after the
expiration of the fifteen (15) day period Landlord shall give a second notice to Tenant, and if
Tenant does not, within five (5) days after receipt of the second notice, cure the default, then
after the expiration of the second five (5) day period Landlord shall have the right to pursue its
legal remedies.
19. LANDLORD’S DEFAULT. If Landlord shall be in default hereunder, Tenant,
after thirty (30) days notice that Tenant intends to cure the default (or without notice if in
Tenant’s reasonable judgment an emergency shall exist), Tenant shall have the right, but not the
obligation, to cure the default, and Landlord shall pay to Tenant upon demand the cost thereof
within ten (10) days. If Landlord does not make such payments to Tenant within ten (10) days,
Tenant may offset the amount due from Landlord against any payments for rent or other
payments due Landlord, if any, and pursue its legal remedies. Except when in Tenant’s
reasonable judgment an emergency shall exist, Tenant shall not commence to cure any default of
a nature that could not reasonably be cured within a period of thirty (30) days, provided Landlord
shall have commenced to cure the default within the cure period and so long as Landlord
proceeds with reasonable diligence and in good faith to cure the default.
20. MUTUAL WAIVER OF SUBROGATION RIGHTS. Landlord and Tenant
and all parties claiming under them mutually waive, release and discharge each other from all
rights of recovery, causes of action, claims and liabilities arising from or caused by any cause,
casualty or hazard covered or required hereunder to be covered in whole or in part by insurance
on the Demised Premises and waive any right of subrogation which might otherwise exist in or
accrue to any person on account thereof. The foregoing waiver shall apply regardless of the
cause or origin of the claim, including but not limited to, the negligence of a party or that party’s
agents, officers, employees or contractors. Each party to the extent possible shall obtain, for
each policy of insurance, provisions permitting waiver of any claim against the other party for
loss or damage within the scope of the insurance and each party to the extent permitted, for itself
and its insurer, waives all such insured claims against the other party.
21. QUIET POSSESSION. Landlord covenants that it will put Tenant into complete
and exclusive possession of the Demised Premises, free from all orders, restrictions and notices
of any public or quasi-public authority, and that if Tenant shall pay the rental and perform all the
covenants and provisions of this Lease to be performed by Tenant, the Tenant shall, during the
Term, freely, peaceably and quietly occupy and enjoy the full possession of the Demised
Premises, and the tenements and appurtenances thereto belonging, and the rights and privileges
granted without hindrance. In addition, Landlord agrees to indemnify, defend, and hold Tenant
harmless from any and all claims seeking to prevent Tenant from quiet and complete possession
of the Demised Premises. If at any time during the term demised the title of the Landlord shall
Attachment number 5 \nPage 10 of 15
Item # 15
00428222-10
fail or for any reason it shall appear that Landlord is unable to make this Lease for the term on
the conditions set forth, the Tenant shall, in addition to all remedies available at law or in equity,
have the right at Landlord’s expense to correct any default and offset such amount against rent,
or terminate this Lease.
22. RENT PAYMENT. Tenant shall make rent checks payable to Augusta, Georgia,
and mail them to the address set forth in paragraph 31 or as otherwise directed by Landlord.
23. TENANT’S BUSINESS OPERATION. Landlord and Tenant agree that
nothing in this Lease shall be construed to imply that Tenant is required to conduct its business
in any particular manner or for any specified number of hours per day or week, or to limit the
number of hours per day or week that Tenant may operate in the Demised Premises, or as
creating an implied or expressed obligation upon Tenant to continuously occupy or operate a
business in the Demised Premises.
24. SURRENDER OF DEMISED PREMISES. Upon the expiration of this Lease,
Tenant shall peaceably surrender the Demised Premises to Landlord in the same condition in
which they were received from Landlord at the commencement of this Lease, except: (i) as
altered as permitted or required by this Lease; (ii) for repairs, replacements and maintenance
required to be performed by Landlord; (iii) for items covered by Landlord’s insurance; and (iv)
except for ordinary wear and tear. This Section 24 shall not apply to cancellation or termination
of this Lease pursuant to Section 13, DAMAGE TO DEMISED PREMISES, or pursuant to
Section 18, CONDEMNATION, pursuant to which Tenant shall have no obligation or liability to
Landlord. Tenant shall remove its property from the Premises within a reasonable time after the
Lease expiration (not to exceed thirty (30) days), without additional rent obligation.
25. LANDLORD’S CONSENTS AND APPROVALS. Whenever it is stated in this
Lease that Landlord’s consent or approval is required, Landlord agrees that such consent or
approval will not be unreasonably withheld or delayed. If, in any instance, Landlord refuses to
grant its consent or approval, Landlord agrees to simultaneously give Tenant written notice of
the reason(s) for such refusal. If Landlord’s consent or approval is not given or refused within
ten (10) days after Tenant’s written request therefore, such consent or approval shall be deemed
automatically granted.
26. ATTORNEYS’ FEES. If either party commences an action against the other
party arising out of or in connection with this Lease, the prevailing party shall be entitled to have
and recover from the losing party reasonable attorneys’ fees and costs of suit, including, but not
limited to, fees and costs of appeal.
27. RECORDING. In the event either party desires to record the existence of this
Lease, the parties agree to execute a Memorandum of Lease setting forth the Operating Term,
number of renewal option periods and length, if any, the description of the Demised Premises,
and any other terms and conditions of the Lease the parties wish to make of public record.
28. NO WAIVER. The failure of the Landlord or Tenant to insist upon the strict
performance of this Lease, or the failure of Landlord or Tenant to exercise any right, option or
remedy contained in this Lease shall not be construed as a waiver for the future of any such
Attachment number 5 \nPage 11 of 15
Item # 15
00428222-10
provision, right, option, or remedy, or as a waiver of any subsequent breach. No provision of
this Lease shall be deemed to have been waived unless such waiver shall be in writing signed by
the party to be charged.
29. TRUE LEASE. This Lease is intended as, and shall constitute, an agreement of
lease, and nothing herein shall be construed as conveying to the Tenant any right, title or interest
in or to the Demised Premises nor to any remainder or reversionary estates in the Demised
Premises held by any person, except, in each instance, as a Tenant. Under no circumstances
shall this Lease be regarded as an assignment of all of Landlord’s interests in and to the Demised
Premises. Instead Landlord and Tenant shall have the relationship between them of Landlord
and Tenant, pursuant to the provisions of this Lease.
30. HOLD OVER. Any holding over by Tenant beyond the original term of this
Lease shall be on the same terms and conditions as contained herein, and shall be a periodic
tenancy terminable by either party upon thirty (30) days prior written notice to the other party.
31. NOTICES. All notices required under this Lease shall be given and deemed to
have been properly served if delivered in writing personally, by certified mail, or by a nationally
recognized overnight carrier with signed proof of delivery to:
In case of the Landlord to:
Augusta-Richmond County
City County Municipal Building
530 Greene Street
Augusta, Georgia 30901
Attn: City Administrator
With a copy to:
Augusta-Richmond County
Legal Department
530 Greene Street
Augusta, Georgia 30901
Attn: General Counsel
In the case of Tenant to:
Augusta Riverfront, LLC
One 10th Street, Riverfront Center
Suite 340
Augusta, Georgia 30901
Attn: Mr. Paul S. Simon
With a copy to:
Hull Barrett, PC
801 Broad Street, 7th Floor
Augusta, Georgia 30901
Attn: Rand Hanna
or such other place or places as either of them may designate in writing to the other from time to
time in accordance with the provisions of this Section. Date of service of a notice served by mail
shall be the date on which such notice is received by the addressee. Date of service by any other
method shall be the date of receipt.
32. ESTOPPEL CERTIFICATES. Upon the reasonable request of either party,
Landlord and Tenant agree to execute and deliver to the other within ten (10) business days after
receipt of the request, a written instrument, (a) certifying that this Lease has not been modified
and is in full force and effect or, if there has been a modification of this Lease, that this Lease is
in full force and effect as modified, stating such modifications; (b) stating that the fixed monthly
rent has not been paid more than thirty (30) days in advance, or if so, the date to which it has
been paid; (c) stating whether or not, to the knowledge of the party executing the instrument, the
Attachment number 5 \nPage 12 of 15
Item # 15
00428222-10
other party hereto is in default and, if the party is in default, stating the nature of the default; and
(d) stating the date of this Lease.
33. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. Tenant
agrees that this Lease shall, at Landlord’s request, be subject and subordinate to any first
mortgage or deed of trust hereafter placed upon the Demised Premises upon the condition that
the mortgagee or holder of a deed of trust enter into a Subordination, Non-Disturbance and
Attornment Agreement in a form mutually acceptable to Landlord, Tenant and the mortgagee or
holder.
34. TENANT PROPERTY. All Tenant’s personal property, furniture, furnishings,
signs, equipment, machinery, trade fixtures and trade uses located at the Demised Premises shall
remain the property of Tenant and may be removed from the Demised Premises at any time.
Landlord shall have no lien or other interest whatsoever in any such items and within ten (10)
days following Tenant’s request, Landlord shall execute documents in reasonable form to
evidence Landlord’s waiver of any right, title, lien, or interest in or to same.
35. INVALIDITY OF CERTAIN PROVISIONS. If any provisions of this Lease
shall be invalid or unenforceable, the remainder of the provisions of this Lease shall not be
affected and every other provision of this Lease shall be enforceable to the fullest extent
permitted by law.
36. FORCE MAJEURE. If either party shall be prevented or delayed from
punctually performing any obligation or satisfying any condition under this Lease by: (a) any
strike, lockout, or labor dispute not caused by the negligence non-performing party or breach of a
labor contract by the non-performing party; (b) the inability to obtain labor or materials not
resulting in any way from the negligence or any act or omission of the non-performing party; (c)
and Act of God; (d) governmental restrictions; regulations or controls not existing as of the date
of this Lease; (e), enemy or hostile governmental action; (f) civil commotion, insurrection,
sabotage, fire or other casualty not resulting from the non-performing party’s negligence or other
actions; or, (g) any other condition beyond the reasonable control of the responsible party, then
the time to perform the obligation or satisfy the condition shall be extended for a period of time
equal in length to the length of the event.
37. GOVERNING LAW. This Lease shall be construed in accordance with the laws
of the state Georgia, with venue being in Augusta-Richmond County, Georgia without giving
regard to its conflict of laws.
38. SUBMISSION TO VENUE AND JURISDICTION. Any legal action or
proceeding with respect to this Lease shall be brought in the appropriate federal or state court
located in the state where the Demised Premises are located. By execution and delivery each
party hereto accepts for itself and in respect of its property, generally and the jurisdiction of the
above-reference courts.
39. CAPTIONS. All captions and headings are for convenience of reference only
and in no way shall be used to construe or modify the provisions set forth in this Lease.
Attachment number 5 \nPage 13 of 15
Item # 15
00428222-10
40. ENTIRE AGREEMENT. This Lease, its attachments, any duly executed
amendments, the documents incorporated into the Lease by reference, any written agreements
which are duly executed pursuant to the terms and provisions of this Lease, if any, and the
CORE Agreement contain the entire agreement between the parties and there are no covenants,
express or implied except as contained herein. No statement, promise or inducement made by
either party or agent of either party that is not contained in this written agreement shall be valid
or binding. No waiver of any condition or covenant of this Lease by either party shall be deemed
to imply or constitute a further waiver of the same or any other condition or covenant of the
Lease. During the term of this Lease, Article VI of the CORE Agreement shall be suspended,
but said Article VI shall revive and remain in full force and effect upon any expiration of this
Lease.
41. BINDING EFFECT. This Lease, as of the Effective Date, shall bind and inure
to the benefit of the parties hereto, their heirs, successors, executors, administrators, and assigns.
[EXECUTION ON FOLLOWING PAGE]
Attachment number 5 \nPage 14 of 15
Item # 15
00428222-10
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal in
multiple counterparts, each of original document, on the day and year first above written.
Signed, sealed and delivered in the
presence of:
________________________
Unofficial Witness
________________________
Notary Public
(Notary Seal)
Augusta, Georgia
By:________________________
Its Mayor
Attest:______________________
Its Clerk of Commission
(Seal)
Signed, sealed and delivered in the
presence of:
________________________
Unofficial Witness
________________________
Notary Public
(Notary Seal)
Augusta Riverfront, LLC, a Georgia limited
liability company
By:________________________
Paul S. Simon
As its President
(Seal)
Attachment number 5 \nPage 15 of 15
Item # 15
1
STATE OF GEORGIA
COUNTY OF RICHMOND
LIMITED WARRANTY DEED
THIS INDENTURE, made this ___ day of ____________, 2011, by and between 933 BROAD
INVESTMENT CO., LLC, a Georgia limited liability company, as party of the first part (herein called
“Grantor”), and AUGUSTA, GEORGIA, a public body corporate and politic of the State of Georgia, as party
of the second part (herein called “Grantee”) (the words “Grantor” and “Grantee” shall include their respective
heirs, successors and assigns where the context requires or permits);
W I T N E S S E T H:
GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid at
and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted,
bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien, convey
and confirm unto said Grantee, all those property rights lying and being in Augusta, Richmond County,
Georgia, and being more particularly described on Exhibit “A” attached hereto and by this reference made a
part hereof, together with any and all improvements, and fixtures located thereon or attached thereto, and all
rights, easements and benefits appurtenant thereto (hereinafter referred to as the “Property”), subject to current
taxes and assessments not yet due and payable, all easements, rights of way, covenants, conditions, restrictions,
and other matters of record, zoning ordinances, rights of tenants and parties in possession and any state of facts
that would be disclosed by a current accurate survey of the Property ("Permitted Encumbrances").
TO HAVE AND TO HOLD the Property to the same being, belonging, or in anywise appertaining, to
the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE.
AND Grantor shall and will warrant and forever defend by virtue of these presents, the Property unto
Grantee against Grantor and all persons owning, holding or claiming by, through or under Grantor, except for
claims arising under or by virtue of the Permitted Encumbrances.
Attachment number 6 \nPage 1 of 3
Item # 15
2
EXECUTED under seal the day and year first above written.
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)
Attachment number 6 \nPage 2 of 3
Item # 15
3
Exhibit “A”
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 149.25 feet above mean sea level and below a horizontal plane of 199.25 feet
above mean sea level as determined by reference to the United States Coast and Geodetic Survey Benchmark
Elevation of 135.748 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 Richmond County, Georgia, being
depicted as “N/F 933 Broad Investment Co. LLC” containing 1.25 acres, more or less (the “Land”), on
that certain Compiled Map of Proposed Reynolds Street Parking Deck for Augusta, Georgia by John
Thomas Attaway, GA RLS No. 2512, of Cranston Engineering Group, P.C., dated November 1, 2010,
and recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in Plat
Cabinet ___, Slide _____ # ____ (“Plat”). Reference is hereby made to said Plat for a more complete
and accurate description as to the metes, bounds, courses, distances and location of said property.
The above described air rights parcel is less and except and subject to the rights of others to the
exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to, floor and cover
over and build and construct over, in or upon the entire space or area situate at a height above a horizontal
plane of 199.25 feet above mean sea level as determined by reference to the United States Coast and Geodetic
Survey Benchmark Elevation of 135.748 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 above.
The above described air rights parcel is less and except and subject to the rights of others to the
exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to, floor and cover
over and build and construct over, in or upon the entire space or area situate at a height below a horizontal
plane of 149.25 feet above mean sea level as determined by reference to the United States Coast and Geodetic
Survey Benchmark Elevation of 135.748 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 above.
TOGETHER WITH a perpetual, non-exclusive access easement for vehicular and pedestrian access to the
Property over all entrance driveway(s) and access ramp(s) currently existing on the Land, as such may be
relocated from time to time. The easement granted herein shall continue so long as the parking facilities
continue to exist.
TOGETHER WITH a non-exclusive, perpetual easement for support for all columns, walls and other support
structures located on the Land. The easement granted herein shall continue so long as the parking facilities
continue to exist.
Attachment number 6 \nPage 3 of 3
Item # 15
00468294-3
1
Prepared by and after recording, please return to:
Seyfarth Shaw LLP
1075 Peachtree Street, N.E., Suite 2500
Atlanta, Georgia 30309
Attn: Lori H. Whitfield, Esq.
Cross Reference to instruments recorded at:
Deed Book 01019, Page 1326
Deed Book 01019, Page 1367
Deed Book 01041, Page 2155
Deed Book 01141, Page 2119
Deed Book 01019, Page 1440
Deed Book 01264, Page 1045
Richmond County, Georgia records
STATE OF GEORGIA
COUNTY OF RICHMOND
QUITCLAIM DEED
AND PARTIAL RELEASE
THIS QUITCLAIM DEED AND PARTIAL RELEASE (this “Partial Release”) is effective as of this
___ day of _______________, 2012, between WELLS FARGO BANK, N.A., a national banking association,
successor by merger to WACHOVIA BANK, NATIONAL ASSOCIATION (“Lender”), having a mailing
address of 2030 Main Street, Suite 800, Irvine, California 92614, Attention: Kim Taylor, Loan
Administrator, and 933 BROAD INVESTMENT CO, LLC, a Georgia limited liability company
(“Guarantor”), with the mailing address of c/o Azalea Development, LLC, 725 Broad Street, Augusta,
Georgia 30901, Attention: William S. Morris IV (“Lender” and “Guarantor” to include the plural as well as
the singular, and heirs, legal representatives, successors and assigns, where the context so requires or admits).
W I T N E S S E T H
WHEREAS, Lender has made certain loans (the “Loans”) to Augusta Riverfront, LLC (“Borrower”),
which Loans are unpaid and are currently evidenced by (i) that certain Promissory Note made by Borrower in
the original principal amount of $78,500,000 dated September 27, 2005 and (ii) that certain Promissory Note
made by Borrower in the original principal amount of $13,500,000 dated February 17, 2006 (collectively, the
“Notes”).
WHEREAS, Guarantor has guaranteed Borrower’s indebtedness and obligations under the Notes and
the Loans pursuant to that certain Guaranty Agreement dated September 27, 2005 (as the same has been
heretofore amended and reaffirmed, the “Guaranty”).
WHEREAS, Guarantor has secured its obligations under the Guaranty with the following instruments:
Attachment number 7 \nPage 1 of 4
Item # 15
00468294-3
2
(i) that Deed to Secure Debt, Assignment of Rents and Leases, and Security
Agreement dated as of September 27, 2005 made by Guarantor for the benefit of
Lender and recorded October 14, 2005 in Office of the Clerk of the Superior Court,
Richmond County, Georgia (the “Official Records”) in Deed Book 01019, Page 1326,
as the same has been modified and amended by that certain First Modification of Deed
to Secure Debt, Security Agreement, Financing Statement and Fixture Filing, and First
Modification of Assignment of Rents and Leases dated February 17, 2006 and
recorded in the Official Records on March 2, 2006 in Deed Book 01041, Page 2155
(the “First Modification”), as further modified and amended by that certain Second
Modification of Deed to Secure Debt, Security Agreement, Financing Statement and
Fixture Filing, and Second Modification of Assignment of Rents and Leases dated
August 23, 2007 and recorded in the Official Records on September 7, 2007 in Deed
Book 01141, Page 2119 (the “Second Modification”; said deed to secure debt, as
modified by the First Modification and the Second Modification is hereinafter
collectively referred to as the “Security Deed”);
(ii) that certain Assignment of Rents and Leases dated as of September 27, 2005 made
by Guarantor for the benefit of Lender and recorded in the Official Records on
October 14, 2005 in Deed Book 01019, Page 1367, as the same has been modified by
the First Modification and Second Modification (said assignment of rents and leases as
modified by the First Modification and the Second Modification is hereinafter
collectively referred to as the “ALR”); and
(iii) that UCC Financing Statement recorded in the Official Records on September
27, 2005, in Deed Book 01019, Page 1440, as continued by that UCC Financing
Statement Amendment recorded in the Official Records on June 22, 2010, in Deed
Book 01264, Page 1045 (as continued, the “UCC”).
The foregoing documents, instruments and agreements, together will all other documents, instruments and
agreements evidencing, securing or otherwise relating to the Loans, as any of same may have been amended,
modified, supplemented, restated, extended, spread, renewed and/or consolidated, are hereinafter collectively
referred to as the “Loan Documents”.
WHEREAS, Lender is the current holder of the Loan Documents and all indebtedness secured
thereby.
WHEREAS, at Guarantor’s request, Lender has agreed to release the Release Parcel (as defined
hereinbelow), BUT ONLY THE RELEASE PARCEL, from the lien, security interests, operation and effect
created under and by virtue of the Loan Documents, and desires to evidence and confirm said agreement by
executing and delivering this Partial Release.
WHEREAS, except for the Release Parcel (which is being released from the lien of the Loan
Documents), the Loans are outstanding and unpaid, the Loan Documents remain in full force and effect, with
all property, land, easements, improvements, fixtures and personal property described in the Loan Documents
(collectively, the “Mortgaged Property”) continuing to secure the Guaranty and the Loans and subject to the
lien(s) of the Loan Documents. THIS IS ONLY A PARTIAL RELEASE OF LIEN AND RELEASES ONLY
PART OF THE MORTGAGED PROPERTY COVERED BY THE LOAN DOCUMENTS.
NOW THEREFORE, in consideration of the premises and TEN DOLLARS in-hand paid to Lender,
and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Lender does hereby remise, release, quitclaim and set over unto Guarantor and its heirs, successors and assigns
forever the following property (the “Release Parcel”):
Attachment number 7 \nPage 2 of 4
Item # 15
00468294-3
3
The exclusive and perpetual possession and occupancy of, and the exclusive and perpetual right to,
floor and cover over and 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 _____ # ____.
Portion of TMP Nos. 037-3-066-01-0; 037-3-066-00-0; 037-3-177-00-0; 037-3-069-00-0; and 037-3-
070-00-0.
but only the Release Parcel, together with all hereditaments and appurtenances thereunto belonging,
and all right, title and interest of Lender in and to the same, BUT WITHOUT, HOWEVER, in any manner
releasing or relinquishing the lien, security interests, operation or effect of the Loan Documents on the
Mortgaged Property (other than the Release Parcel) and all other property, land, easements, improvements,
fixtures and personal property described therein.
THIS IS A PARTIAL RELEASE OF LIEN, and except for the Release Parcel, the liens and
obligations of the Loan Documents continue in full force and effect on the Mortgaged Property as described in
the Loan Documents. Lender reaffirms, and by its acceptance hereof Guarantor reaffirms, that the
indebtedness under the Loan Documents has not been paid and remains outstanding and ratify and affirm the
liens held by Lender under the Loan Documents (other than for the Release Parcel, which is released by this
Partial Release).
All terms covenants, conditions and provisions of the Partial Release are binding upon Lender and its
heirs, legal representatives, successors and assigns, and all other parties in interest.
This Partial Release is governed by, and shall be construed and enforced in accordance with, the laws
of the State of Georgia.
TO HAVE AND TO HOLD the Release Parcel to Guarantor, so that neither Lender nor any person or
persons claiming under Lender, shall at any time, by any means or ways, have, claim or demand any right to
title to the Property or its appurtenances.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
Attachment number 7 \nPage 3 of 4
Item # 15
00468294-3
4
IN WITNESS WHEREOF, Lender has executed this instrument the day and year first above written.
Signed, sealed and delivered in the
presence of:
Unofficial Witness
Notary Public
My Commission Expires:
[Notarial Seal]
Lender:
WELLS FARGO BANK, N.A., a national banking
association, successor by merger to WACHOVIA
BANK, NATIONAL ASSOCIATION
By: ______________________________
Name: Brandon Cox
Title: Senior Vice President
[BANK SEAL]
Attachment number 7 \nPage 4 of 4
Item # 15
1
00467896-6
Seyfarth Shaw Revision 6/3/12
Version 6
___________________________________________________________________________________
Space above this line for recorder’s use
DEED WITH RESERVATION OF
EASEMENTS AND OTHER RIGHTS
THIS INDENTURE (this “Deed”), made this ___ day of ____________, 2012, by and between 933
BROAD INVESTMENT CO, LLC, a Georgia limited liability company, as party of the first part (herein called
“Developer”), and AUGUSTA, GEORGIA LAND BANK AUTHORITY, as party of the second part (herein
called the “Authority”) (the words “Developer” and “Authority” shall include their respective heirs, successors
and assigns where the context requires or permits);
W I T N E S S E T H:
DEVELOPER, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid
at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has
granted, bargained, sold, aliened, conveyed and confirmed and by these presents does grant, bargain, sell, alien,
convey and confirm unto the Authority, all that tract and parcel of land being in Augusta, Richmond County,
Georgia, and being more particularly described on Exhibit “A” attached hereto and by this reference made a
part hereof (hereinafter referred to as the “Property”), subject to current taxes and assessments not yet due and
payable, that certain Deed to Secure Debt, Assignment of Rents and Leases, and Security Agreement from
Developer to Wachovia Bank, N.A., dated September 27, 2005 and recorded in the real estate records of
Richmond County, Georgia at Book 01019, Page 1326, as the same has been amended, and that certain
Assignment of Rents and Leases from Developer to Wachovia Bank, N.A. dated September 27, 2005 and
recorded in the real estate records of Richmond County, Georgia at Book 01019, Page 1367, as the same has
been amended, all easements, rights of way, covenants, conditions, restrictions, and other matters of record,
zoning ordinances, rights of tenants and parties in possession, that certain Reynolds Street Parking Deck
Construction, Operating, and Reciprocal Easement Agreement (the “CORE Agreement”) of even date, the
easements and rights reserved herein, and any state of facts that would be disclosed by a current accurate
survey of the Property (“Permitted Encumbrances”).
TO HAVE AND TO HOLD the Property to the same being, belonging, or in anywise appertaining, to
the only proper use, benefit and behoof of the Authority forever in FEE SIMPLE.
Attachment number 8 \nPage 1 of 7
Item # 15
2
00467896-6
EXECUTED under seal the day and year first above written.
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)
Attachment number 8 \nPage 2 of 7
Item # 15
3
00467896-6
The Authority accepts this Deed and agrees to the easements, rights, terms and conditions contained in
this Deed under seal the day and year first above written.
Signed, sealed and delivered in the
presence of:
________________________
Unofficial Witness
________________________
Notary Public
(Notary Seal)
Augusta, Georgia Land Bank Authority
By:________________________
As its Chairman
Attest:______________________
As its Land Bank Coordinator
(Seal)
Attachment number 8 \nPage 3 of 7
Item # 15
4
00467896-6
Exhibit “A”
All that lot, tract or parcel of land (the “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 _____ # ____ (“Plat”).
LESS AND EXCEPT and subject to the rights of others to 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. Said air rights parcel was conveyed to Augusta, Georgia by deed of Grantor of even date and
recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia, prior to the recordation of
this Deed (the “City Air Rights Property”).
LESS AND EXCEPT and subject to the rights of others to the exclusive and perpetual possession and
occupancy of, and the exclusive and perpetual right to, floor and cover over and build and construct over, in or
upon the entire space or area situate at a height above 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. Title to said air rights parcel is hereby reserved
to Grantor.
Portion of TMP Nos. 037-3-066-01-0; 037-3-066-00-0; 037-3-177-00-0; 037-3-069-00-0; and 037-3-
070-00-0.
SUBJECT TO AND RESERVING THEREFROM THE FOLLOWING EASEMENTS AND
RIGHTS:
Easements Reserved in Favor of Developer. The parties intend that Developer, as the owner of the
land described in Exhibit “B” hereto (the “Developer Property”), retains, at no rental or other charge, the
perpetual right of possession, use and occupancy of the Property in the broadest sense for parking, access,
commercial and residential use and occupancy, and all other lawful purposes, subject only to the agreements
and restrictions set forth in the CORE Agreement. Accordingly, Developer reserves easements in perpetuity
for the use and benefit of the owner of the Developer Property over all portions of the Property, subject to the
CORE Agreement, for (i) the parking of passenger and commercial vehicles on all parking spaces now or
hereafter located on the Property, on an exclusive basis; (ii) pedestrian and vehicular ingress and egress to and
from the public streets and sidewalks over all portions of the Property; (iii) the possession, use, and occupancy
of the Property; (iv) the re-configuration, demolition of improvements, erection of new improvements,
modification, construction, use, occupancy, leasing, operation, and maintenance of retail or office space or any
other type of commercial or residential use not prohibited by law; (v) the construction, use, repair, and
Attachment number 8 \nPage 4 of 7
Item # 15
5
00467896-6
maintenance of footings, supports and utility lines (electric, communication, water, sewer, storm water, and
gas, to the extent now or hereafter desirable by Developer); (vi) all other uses of the Property not prohibited by
law; and (vii) all rights, benefits and easements of Developer under the CORE Agreement. Neither the
Authority nor any person or entity acting through the Authority shall enter into or make any use of the Property
or any portion thereof in a manner that would impact or interfere with Developer’s, or any successor owner of
the Developer Property, exercise of its rights and easements reserved in this Deed, without the express and
prior written consent of Developer. Developer shall not be required to obtain any consent of the Authority or
provide any notice to the Authority prior to the exercise of its rights reserved in this Deed. The foregoing
rights and easements shall run with the land for the benefit of the owner of the Developer Property and burden
the Property, such being intended to be rights and easements appurtenant to the Developer Property and not in
gross.
Binding Effect; Etc. Developer, or any successor owner of the Developer Property, shall have the right
to extend to its tenants, customers, business guests and invitees the benefit of the rights and easements
established in this Deed, but no such tenant, customer, business guest or invitee shall by virtue thereof be
deemed to have acquired any interest whatsoever in the Property or any part thereof. The benefits and burdens
of the easements and restrictions created in this Deed shall run with the land and shall be binding upon and
inure to the benefit of the owners of all interests in the Property (and all subdivided portions thereof) and the
Developer Property 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 Deed shall be
unaffected by any change in the ownership of any property covered by this Deed or the Developer Property or
by any change of use, demolition, reconstruction, expansion or other circumstances, except as specified in this
Deed. Each of the rights created hereunder may be enforceable in a court of equity by the owner of any
property covered by this Deed. It is the express intent of the parties hereto that the easements reserved in this
Deed shall not, at any time, merge by operation of law into any owner’s title or interest in any parcel, but that
the easements reserved in this Deed 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 estates in
land. Developer shall have the right to encumber, pledge, mortgage, grant security title to, grant a security
interest in, convey, transfer, assign, and subdivide and convey to one or multiple parties, all or any portion of
the easements and rights reserved in this Deed.
Perpetual Easements. The easements reserved in this Deed shall continue in perpetuity. The parties
expressly acknowledge and agree that the purpose of this Deed is the reservation and establishment of the
easements, rights and privileges set forth herein, and none of the terms or provisions of this Deed 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 Deed are in any way
covered or limited by said section or any similar law or statute.
Option to Re-Acquire the Property. In the event Augusta, Georgia fails to rebuild after damage to the
parking deck located on the City Air Rights Property, above the Property and the CORE Agreement terminates
pursuant to Section 5.3 thereof, Developer, together with its successors and assigns as owners of the Developer
Property, shall have a perpetual option to acquire fee simple title to the Property for its fair market value, as
Attachment number 8 \nPage 5 of 7
Item # 15
6
00467896-6
determined by an appraisal complying with the laws of Georgia with respect to the sale of government owned
property and taking into account the diminution in value of the Property on account of the easements reserved
by Developer in this Deed. In the event Developer exercises its option to acquire the Property, the Authority
shall reasonably cooperate with Developer in obtaining such appraisal and all necessary approvals for such
conveyance of the Property to Developer. Furthermore, Developer, for itself and its successors and assigns as
owners of the Developer Property, reserves for itself and its successors and assigns, and expressly does not
transfer to the Authority, the option to acquire the City Air Rights Property after a casualty pursuant to Section
5.3 of the CORE Agreement.
Amendment and Waiver. No amendment of any provision of this Deed shall be valid unless the same
shall be in writing and signed by Developer and the Authority (or their successors in title to the Property) and
duly indexed and recorded in the Office of the Clerk of Superior Court of Augusta, Richmond County,
Georgia. No waiver by any party of any provision of this Deed, whether intentional or not, shall be valid unless
the same shall be in writing and signed by the party making such waiver nor shall such waiver be deemed to
extend to any subsequent default, misrepresentation, or breach of warranty or covenant under this Deed or
affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
Attachment number 8 \nPage 6 of 7
Item # 15
7
00467896-6
Exhibit “B”
“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 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 _____ # ____.
Attachment number 8 \nPage 7 of 7
Item # 15
Attachment number 9 \nPage 1 of 6
Item # 15
Attachment number 9 \nPage 2 of 6
Item # 15
Attachment number 9 \nPage 3 of 6
Item # 15
Attachment number 9 \nPage 4 of 6
Item # 15
Attachment number 9 \nPage 5 of 6
Item # 15
Attachment number 9 \nPage 6 of 6
Item # 15
Commission Meeting Agenda
6/28/2012 5:00 PM
Affidavit
Department:Clerk of Commission
Caption:Motion to authorize execution by the Mayor of the affidavit of
compliance with Georgia's Open Meeting Act.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Item # 16