HomeMy WebLinkAboutMEMORANDUM OF PROPERTY EXCHANGE & INTERGOVERNMENTAL AGREEMENT WITH BOE, AUGUSTA, GA & THE CSRA FOUNDATION OF PROPERTY HOLDINGS, LLC a f
MEMORANDUM OF PROPERTY EXCHANGE
AND INTERGOVERNMENTAL AGREEMENT
• BY AND BETWEEN
COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY, GEORGIA,
AUGUSTA, GEORGIA
AND THE CSRA FOUNDATION PROPERTY HOLDINGS, LLC
WHEREAS, on May 31, 2016 a Resolution of Augusta, Georgia ("Augusta") was
approved authorizing the transfer of Augusta's interest in the property commonly known as 2950
Mike Padgett Highway (111-0-031-00-0) and 1755 Lumpkin Road (111-0-032-00-0) (both
described on Exhibit "C" attached hereto and made a part hereof) and its interest in the property
commonly known as 1762 Lumpkin Road, Tract A (111-3-095-00-0) (described on Exhibit "D"
attached hereto and made a part hereof), said properties collectively "Highway 56 Property", to
the County Board of Education of Richmond County ("BOE"), in exchange for the property
located at 2413 Jennings Road (070-4-096-00-0) (described on Exhibit "A" attached hereto and
made a part hereof) and the property located at 2844 Regency Boulevard (070-4-096-01-0)
(described on Exhibit"B" attached hereto and made a part hereof); and
WHEREAS, the BOE on May 17, 2016 approved a Resolution authorizing the exchange
of the property located at 2413 Jennings Road (Tax Map 070-4-096-00-0) ( described on Exhibit
"A" attached hereto and made a part hereof) and the property located at 2844 Regency
Boulevard (070-4-096-01-0) (described on Exhibit "B" attached hereto and made a part hereof)
for the property commonly known as: 2950 Mike Padgett Highway (111-0-031-00-0) and 1755
Lumpkin Road (111-0-032-00-0) (both described on Exhibit "C" attached hereto and made a part
hereof) and its interest in the property commonly known as 1762 Lumpkin Road, Tract A (111-
3-095-00-0) (described on Exhibit "D" attached hereto and made a part hereof); and
WHEREAS, in connection with the acquisition of the Highway 56 Property the BOE and
Augusta, Georgia previously filed an application (the "Application") with the Georgia
Environmental Protection Division ("EPD") as a Prospective Purchaser under the Georgia
Brownfields Act, O.C.G.A. §12-8-200 et seq. to obtain liability protection benefits under said
Act; and
WHEREAS, Grantor and Augusta, Georgia have received a provisional limitation of
liability from the EPD pursuant to the Brownfields Act and have submitted certain reports and
documents to obtain the final Brownfields Limitation of Liability letter ("BLL Letter") from
EPD pursuant to the Brownfields Act and are working with EPD in order for the BLL letter to be
approved and issued; and
WHEREAS, CSRA Foundation Property Holdings, Inc. ("Foundation") is currently the
owner of the property located at 2844 Regency Boulevard (070-4-096-01-0) (described on
Exhibit"B" attached hereto and made a part hereof); and
WHEREAS, the Foundation and BOE have agreed that the BOE will exchange with the
Foundation the property located at 1762 Lumpkin Road, Tract A (111-3-095-00-0) for the 2844
Regency Boulevard (070-4-096-01-0) property, provided however, that the parties have agreed
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that title to the 1762 Lumpkin Road, Tract A (111-3-095-00-0) property will not be delivered to
the Foundation until the final BLL Letter is issued; and
WHEREAS, in further consideration of the exchange of property with Augusta, the BOE
has agreed to the continued partial and defined use of the 2950 Mike Padgett Highway (111-0-
031-00-0) and 1755 Lumpkin Road by Augusta as provided herein.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. BOE shall acquire the 2844 Regency Boulevard (070-4-096-01-0) property from the
Foundation and exchange this property along with the 2413 Jennings Road (070-4-096-
00-0) property for Augusta's interest in 2950 Mike Padgett Highway (111-0-031-00-0),
1755 Lumpkin Road(111-0-032-00-0), 1762 Lumpkin Road, Tract A (111-3-095-00-0).
2. BOE, with the cooperation and assistance of Augusta, shall continue to diligently pursue,
unless the BOE determines that such pursuit is not in the best interests of the BOE, with
reasonable promptness, the final BLL Letter from EPD. However, the parties
acknowledge they have no control over the time EPD may take to review filings, respond
to questions, or otherwise supervise the BLL process.
3. The following provisions in this section govern the rights and obligations of the
Foundation with respect to 1762 Lumpkin Road, Tract A (111-3-095-00-0) (the
"Property"). Except for definitions of capitalized terms, no provisions in this agreement
outside of this section shall be binding upon Foundation or affect the transfer of the
Property to the Foundation or its assignee.
a. The parties acknowledge and agree that the Foundation has given full and fair
consideration for the Property and has fulfilled all obligations to entitle the
Foundation to receive title to the Property. Receipt of the BLL Letter prior to the
conveyance of 1762 Lumpkin Road to the Foundation is a condition precedent for
the sole benefit of the Foundation. The Foundation has the right, exercisable in its
sole discretion,to waive such condition precedent and receive title to the Property
prior to the issuance of the BLL Letter.
b. Section 2 above is incorporated into this Section 3b by reference. Augusta and
BOE shall provide Foundation copies of all reports, applications, correspondence,
and other documents to or from EPD concerning the Application or the Property
and shall otherwise keep the Foundation fully informed with respect to the
Property. Any exercise by the Foundation of its right to obtain title to the
Property prior to the issuance of the BLL Letter shall not relieve Augusta or BOE
of its obligations under Section 2 above and this Section 3b.
c. Prior to BOE amending or withdrawing the Application as it relates to the
Property, BOE shall give the Foundation written notice and a draft of the
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proposed amendment or withdrawal, and the Foundation shall have 30 days to
review the proposed amendment or withdrawal. If the Foundation determines, in
its reasonable discretion, that a proposed amendment will cause a material
impairment of the benefit of the BLL Letter with respect to the Property and shall
make a request within 30 days from the Foundation's receipt of the proposed
amendment, BOE shall withdraw the Property from the Application.
d. In the event that (i) the Property is withdrawn from the Application as described
in Section 3c above, or (ii) BOE fails to diligently pursue, with reasonable
promptness, the final BLL Letter from EPD; upon request by the Foundation,
Augusta shall pursue another Brownfields Limitation of Liability Letter and take
action, on a reasonably prompt basis, to obtain a BLL Letter with respect to the
Property that is materially consistent with the BLL Letter that would be issued if
the current Application was prosecuted to a successful conclusion. BOE
authorizes Augusta to act in this capacity and agrees to reasonably cooperate, and
Augusta agrees to diligently pursue, with reasonable promptness, the final BLL
Letter from EPD.
e. From and after the date of this agreement, neither Augusta nor BOE shall (i) use
the Property for any commercial, industrial, or other purpose; (ii) lease, loan out,
or otherwise allow any other party to utilize the Property; (iii) grant or allow any
easements, restrictions, leases, license, security deeds, or other encumbrances to
affect or attach to the Property; (iv) introduce or release any hazardous materials
or regulated substances on the Property; or (v) take any action that would
encumber title to the Property or otherwise impair the right of the Foundation to
acquire the Property with the same state of title as it exists on the date of this
agreement. Nothing contained herein shall prohibit Foundation from insuring its
interest in the Property or from taking action to protect the physical condition of
the Property, which Foundation is under no obligations with respect thereto.
f. Closing of the conveyance of the Property to the Foundation shall occur the
earlier of (i) forty-five (45) days after demand by Foundation; or (ii) forty-five
(45) days after delivery of the BLL Letter to the Foundation. During such 45 day
period, the Foundation shall have the right to inspect the Property (but shall not
conduct any invasive or other sampling of or on the Property without BOE's
written consent) and title to the Property (for matters first arising after the date of
this Agreement) and advise BOE of any hazardous materials or regulated
substances introduced or released by BOE or title matters, which adverse matters
arise after the date of this Agreement. In the event such adverse matters are
discovered, BOE shall remove the same within a reasonable length of time of
BOE's receipt of notice thereof At the closing of the conveyance of the
Property, BOE shall prepare and deliver to the Foundation a limited warranty
deed by which BOE will convey to the Foundation fee simple title in and to
Property, free and clear of any encumbrances or exceptions to title, except those
that exist as of this Agreement. BOE shall pay any transfer taxes, if any, and shall
also deliver to the Foundation an owner's affidavit and other closing documents,
in the same form as given by the Foundation to convey 2844 Regency Boulevard
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(070-4-096-01-0)property to BOE.
g. The Foundation hereby assigns its rights and obligations under this agreement to
CSRA PROPERTY HOLDING 2, INC., a Georgia non-profit corporation
("Holding 2"). BOE and Augusta consent to said assignment and agree that
Foundation shall have no liabilities of any nature under this agreement or with
respect to the Property. Holding 2 shall have the right to freely assign its rights
under this agreement to another person or entity, subject to the consent of Augusta
and BOE, which consent shall not be unreasonably withheld, and such assignment
shall relieve Holding 2 from all liability under this agreement and otherwise with
respect to the Property.
h. Each party represents and warrants to the other parties that this agreement has
been duly authorized by all necessary action on the part of such party, has been
duly executed and delivered by party, and constitutes the valid and binding
agreement of such party, enforceable in accordance with its terms. This
agreement shall bind and inure to the benefit of parties hereto and their successors
and assigns. If any provision of this agreement or its application to any party is
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, 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. Time is of the
essence. This agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument. In the event of any litigation relating to this agreement or the
transactions described herein, the prevailing party shall be entitled to recover its
reasonable attorney's fees and expenses from the non-prevailing party. This
agreement shall be construed and enforced in accordance with the laws of the
State of Georgia. 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.
4. The Richmond County Sheriff shall have the right to continue storing personalty in the
same building it currently utilizes to store personalty until such time as the BOE gives the
Sheriff ninety (90) days advance written notice to vacate the premises.
5. In the event that BOE constructs a driver education course on the Highway 56 Property,
Augusta shall have the right to utilize such driving course for the training of its driver
employees, at no cost to Augusta, but subject to such reasonable rules as the BOE may
impose.
6. The parties agree that the various exchanges of property and any continued rights to
utilize the property in the future is good and valuable consideration for the agreements
contemplated herein and that no additional consideration needs to be paid by one party to
the other.
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•
7. The parties acknowledge that at the time of the acquisition of the Highway 56 Property
by the BOE and Augusta, the environmental condition of the property necessitated
certain remediation work to be conducted in order for the parties to seek a limitation of
liability under the Georgia Brownfield Act (O.C.G.A. §12-8-200, et seq.) such work
being required under the Application for Limitation of Liability and Prospective
Purchasers' Corrective Action Plan (PPCAP) filed by the parties with the Georgia
Environmental Protection Division (GEPD) on or about June 8, 2009. In consideration
of Augusta's transfer of the Highway 56 Property to the BOE,the BOE agrees not to seek
any additional reimbursement from Augusta or the Foundation for work previously
performed or performed in the future in remediating the Highway 56 Property.
8. To the extent allowed by law and subject to the right of BOE and Augusta to raise the
defense of Sovereign Immunity as to any claims made by third parties, BOE agrees to
indemnify and hold Augusta, its Commissioners, officers, employees and agents harmless
against, any cost or expense relating to a change in the environmental condition of the
Highway 56 Property, that may arise or have arisen as a result of a release any hazardous
materials or regulated substances by BOE subsequent to the joint purchase of the
Property by the parties.
9. Except as provided herein, the respective rights and obligations contained in that certain
Intergovernmental Agreement by and between County Board of Education of Richmond
County, Georgia and Augusta, Georgia, Concerning Properties Described as 88 Acres,
More or Less, Located on Highway 56 in Augusta, Georgia dated March 17, 2015, as
amended, are hereby terminated.
10. This Agreement contains the entire agreement of the parties, and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of either party to exercise any
power given it hereunder, or to insist upon strict compliance by either party of any
obligations hereunder, and no custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of either party's right to demand exact compliance with
the terms hereof.
[SIGNATURES ON FOLLOWING PAGES]
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This reement has been executed by the parties by and through their authorized officials
this day of August, 2016.
COUNTY BOARD OF EDUCATION OF
RICHMOND COUNTY, GEORGIA
\,.(741,41(..
Its: President
Attest: A'/'C r
Its: Superinte.gent and Secretary
AUGUSTA, GEORGIA
VaNtiek 411141F
Hardie Davis, Jr., Mayor
•
4 /
Atnest: Le 'J./onner, Clerk of Commission
CSRA FOUNDATION PROPERTY
HOLDINGS, INC.
By:
Shell K. Berry, Chief Executive Officer
THIS DOCUMENT MAY BE SIGNED IN DUPLICATE WITH EACH TO BE TREATED AS
AN ORIGINAL
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•
Thiseement has been executed by the parties by and through their authorized officials
this day of August, 2016.
COUNTY BOARD OF EDUCATION OF
RICHMOND COUNTY, GEORGIA
Its: President
Attest:
Its: Superintendent and Secretary
AUGUSTA, GEORGIA
Hardie Ita. s Jr,Maypr' �!
01
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est: L" 4 onr,dr, Cl of, om1ission
4*44444441-
g yg y
� �ttVtk,�'' 1$
C`'' A FOUNbATION PROPERTY
HI DIN21.
INC.
By: AIA
She K. Be , Chief Ex•cutive Odcer
THIS DOCUMENT MAY BE SIGNED IN DUPLICATE WITH EACH TO BE TREATED AS
AN ORIGINAL
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•
EXHIBIT A
All that lot or parcel of land together with improvements thereon, situate, lying and being in the
State of Georgia, County of Richmond, containing approximately 5.00 acres of land and
containing the General Cinema Theater Building, and generally consisting of the southern
portion of that 9.55 acre tract of land, described on a plat as Tract D, containing 9.55 acres
recorded in the Office of the Clerk of the Superior Court of Richmond County, Georgia on
Realty Reel 269, p. 1247, and being the southern portion of the General Cinema Theater tract
described in a Warranty Deed to James M. Hull, III, Mason H. McKnight, III and William D.
McKnight by deed of Bernard S. Dunstan, Jr. dated September 11, 1986, which is recorded in the
Office of the Clerk of the Superior Court of Richmond County, Georgia on Realty Reel 239,
pages 2039-2040.
The subject property is subject to that certain reciprocal easement agreement as amended of
record in the real estate records of Richmond County, Georgia.
Being the same property conveyed to the County Board of Education of Richmond County by
James M. Hull, III, Karen Hull, Mason H. McKnight, III and William D. McKnight by a Deed of
Gift dated July 2, 2001, and recorded in the Office of the Clerk of Superior Court of Richmond
County in Book 888, Page 2473.
Map & Parcel No. 070-4-096-00-0 (2413 Jennings Road)
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EXHIBIT B
All that tract of land located in the 119th G.M. District, Augusta-Richmond County, Georgia
designated as "Tract B — 4.90 acres" on that Plat for Augusta-Richmond County Board of
Education prepared by Barry A. Toole of W.R. Toole Engineers, Inc. dated April 30, 2002, and
recorded in the Office of the Clerk of Superior Court of Augusta-Richmond County, Georgia on
January 6, 2003 in Plat Cabinet C, Slide 43, Plat D.
Together with the property, if any, not shown on the above plat but owned currently by Grantor
pursuant to that deed of Bernard S. Dunstan, Jr. recorded in the Office of the Clerk of Superior
Court of Augusta-Richmond County on September 23, 1986 on Reel 239, page 2039, LESS
AND EXCEPT the portion of said property conveyed to the County Board of Education of
Richmond County by that deed recorded in said records on October 2, 2003 in Book 999, page
2473.
Being the same property conveyed to MH Regency, LLC by deed of Bernard S. Dunstan, Jr.,
recorded in the Office of the Clerk of Superior Court of Augusta-Richmond County on
September 23, 1986 on Reel 239, page 2039, LESS AND EXCEPT the portion of said property
conveyed to the County Board of Education.
And being a portion of the property conveyed to CSRA Foundation Property Holdings, Inc. by
MH Regency, LLC by a Deed dated December 29, 2009, and recorded in the Office of the Clerk
of Superior Court of Richmond County in Book 1244, Page 419, and re-recorded to correct
scrivener's error in Book 1252, Page 1572.
Map & Parcel No. 070-4-096-01-0 (2844 Regency Blvd.)
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EXHIBIT C
All of Grantor's percentage interest, as defined by that certain in that certain Intergovernmental
Agreement by and between County Board of Education of Richmond County, Georgia and
Augusta, Georgia, Concerning Properties Described as 88 Acres, More or Less, Located On
- Highway 56 in Augusta, Georgia dated March 17,2015, as amended(it being the intent of Grantor
to convey all of its interest) in and to those lots, tracts or parcels of land, with improvements
thereon, situate, lying and being in Richmond County, Georgia, being shown and designated as
"Tract A, 84.26 acres" and "Tract B, 5.92 acres" on a plat prepared by Barry A. Toole, R.L.S.,
dated August 22,2007, last revised on June 2, 2009, and recorded in the Office of the Clerk of the
Superior Court of Richmond County, Georgia in Plat Book 5,Page 102. Reference is hereby made
to said plat for a more complete and accurate description as to metes, bounds, distances and
location of said property.
Said property is a portion of the property conveyed to Commercial & Military Systems Company
by deed of Cummins Military Systems Company dated March 26, 1997, and recorded in aforesaid
Clerk's Office on Realty Reel 553, page 1185.
Portions of MPN: Tax Map 111, parcels 10.1, 29, 30, 31, 32, 33 & 34. Tax Map 123,parcels 10
and 10.1.
Being the same property conveyed to the County Board of Education of Richmond County,
Georgia and Augusta, Georgia by Edward J. Coleman, III, in his capacity as Trustee for the
Bankruptcy Estate of Commercial and Military Systems Company, Inc. by a Trustee's Deed dated
July 17, 2009, and recorded in the Office of the Clerk of Superior Court of Richmond County in
Book 1225, Page 1613.
LESS&EXCEPTING THEREFROM all that certain tract,lot or parcel of land with improvements
thereon, situate, lying and being in the State of Georgia, County of Richmond, 88th G.M.D.,
containing 7.17 acres, and being shown and designated as "Tract A: 7.17 acres 312.222 S.F." on
that certain plat prepared by James Thomas Attaway, R.L.S., dated August 24, 2014, and being
recorded in the Office of the Clerk of Superior Court of Richmond County, Georgia in PC E, Slide
20,Plat F; Plat Book 11, page 182. Reference hereby made to said plat for a more complete and
accurate description as to the metes, courses, bonds, bearings, distances and location of said
property.
Map & Parcel 111-0-031-00-0 (2950 Mike Padgett Highway)
Map & Parcel 111-0-032-00-0 (1755 Lumpkin Road)
EXHIBIT D
All that certain tract, lot or parcel of land with improvements thereon, situate, lying and being in
the State of Georgia, County of Richmond, 88th G.M.D., containing 7.17 acres, and being shown
and designated as "TRACT A: 7.17 ACRES, 312.222 S.F." on that certain plat prepared by
James Thomas Attaway, Registered Land Surveyor, dated August 24, 2014, being recorded on
November 18, 2015, in the Office of the Clerk of Richmond County, Georgia, in PC E, Slide 20,
Plat F; Plat Book 11, page 182. Reference hereby made to said plat for a more complete and
accurate description as to the metes, courses, bonds, bearings, distances and location of said
property.
This being a portion of the property conveyed to the County Board of Education of Richmond
County and Augusta, Georgia by Trustee's Deed from Edward J. Coleman, III, in his capacity of
Trustee for the Bankruptcy Estate of Commercial and Military Systems Company dated July 17
2009, and being recorded in the aforesaid Clerk's Office in Deed Book 1225, Page 1613.
Being the same property of which a one half interest was conveyed by the County Board of
Education of Richmond County, Georgia to Augusta, Georgia by Quit-Claim Deed dated July
27, 2015, and recorded in the Office of the Clerk of Superior Court of Richmond County in Book
1509, Page 1073.
Map &Parcel No. 111-3-095-00-0 (1762 Lumpkin Road)
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