HomeMy WebLinkAboutFIRST AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT FOR THE SALE, FINANCING AND REDEVELOPMENT OF THE DEPOT PROPERTY •
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FIRST AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT
PARTIES: The City of Augusta
Downtown Development Authority of the City of Augusta
PURPOSE: To amend the original Intergovernmental Agreement between the City and
the Authority to provide for the sale of the property to the Authority
pursuant to the terms of that Purchase, Sale and Development Agreement
between the Authority and the Developer.
AUTHORTY: Agrees to purchase the property for$1.00 (the$1,850,000.00 value of the
land will be a part of the City's$14,000,000.00 commitment to the project
and will reduce the amount of the bond issue). The sale will not occur
until the Developer has performed their due diligence and all conditions of
the sale have been completed.
CITY: Agrees to sale the property upon completion of all conditions in the
Purchase, Sale and Development Agreement.
ORDER: This can be approved by the City now that the Project has been approved
and the Authorizing Resolution for funding has passed.
APPROVAL: Requires City approval as to the form and authorization for the Mayor to
sign. Requires Authority approval as to the form and authorization for the
Chairman to sign. Authority should not approve until the City has
approved.
EXECUTION: Will be signed upon approval
FIRST AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
FOR THE SALE,FINANCING AND REDEVELOPMENT
OF CERTAIN CITY OWNED PROPERTIES
This first amendment to that Intergovernmental Agreement (the "Agreement" or the
"Conveyance IGA") made and entered into on the 4th day of May, 2016 by and between the
Augusta-Richmond County Consolidated Government, a political subdivision of the State of
Georgia,(hereinafter referred to as"City")and the Downtown Development Authority of Augusta-
Richmond County,Georgia(hereinafter referred to as"DDA").
WITNESSETH:
WHEREAS,the City entered into an Intergovernmental Agreement with the DDA to provide
for the development of a strategy for the redevelopment and revitalization of certain real property,
more particularly defined in the Agreement as the Property,so as to enhance the downtown district
of the City,to promote public purposes,and to develop trade,commerce,industry and employment
opportunities in the City;and,
WHEREAS,the DDA agreed to manage and develop a strategy for the revitalization and
redevelopment of Property,subject to the approval of both the DDA and the City;and
WHEREAS,the DDA,in conjunction with Augusta Developers,LLC,developed a Master
Plan for the revitalization and redevelopment of the Property,to enhance the downtown district of
the City,to promote public purposes, and to develop trade, commerce, industry and employment
opportunities in the City.
WHEREAS,pursuant to the Agreement both the City and the DDA have approved such
Master Plan;and,
WHEREAS, the City on the 14th day of August 2018 approved that certain
Intergovernmental Downtown Development Contract to provide for the issuance of bonds by the
DDA in support of such project; and,
WHEREAS,the DDA and Augusta Developers,LLC have entered into a Purchase,Sale and
Development Agreement setting for the terms and conditions of a sale of the Property from the DDA
to Augusta Developers,LLC,a copy of which is attached hereto as Exhibit"A".
NOW THEREFORE,in consideration of the mutual promises,covenants and undertaking set
forth herein,and detailed in the aforesaid recitals,and for other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged by the parties,the City and the DDA do
agree as follows:
1.
That the Agreement is hereby amended to provide that upon the completion and satisfaction
of all terms and conditions of the Purchase,Sale and Development Agreement between the DDA and
Augusta Developers,LLC,the City shall transfer all title and interest in the Property to the DDA.
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed in
three counterparts each to be considered as an original by their authorized representative,on the day
and date hereinabove written.
AUGUSTA-RICHMOND COUNTY
-2 -
First Amendment to Intergovernmental Agreement 10-24-18
CONSOLIDATED GOVERNMENT
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DOWNTOWN DEVELOPMENT AUTHORITY
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-3 -
First Amendment to Intergovernmental Agreement 10-24-18
FIRST AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
FOR THE SALE,FINANCING AND REDEVELOPMENT
OF CERTAIN CITY OWNED PROPERTIES
This first amendment to that Intergovernmental Agreement (the "Agreement" or the
"Conveyance IGA") made and entered into on the 4th day of May, 2016 by and between the
Augusta-Richmond County Consolidated Government, a political subdivision of the State of
Georgia,(hereinafter referred to as"City")and the Downtown Development Authority of Augusta-
Richmond County, Georgia(hereinafter referred to as "DDA").
WITNESSETH:
WHEREAS, the City entered into an Intergovernmental Agreement with the DDA to
provide for the development of a strategy for the redevelopment and revitalization of certain real
property, more particularly defined in the Agreement as the Property, so as to enhance the
downtown district of the City, to promote public purposes, and to develop trade, commerce,
industry and employment opportunities in the City; and,
WHEREAS, the DDA agreed to manage and develop a strategy for the revitalization and
redevelopment of Property, subject to the approval of both the DDA and the City; and
WHEREAS,the DDA, in conjunction with Augusta Developers, LLC, developed a Master
Plan for the revitalization and redevelopment of the Property,to enhance the downtown district of
the City, to promote public purposes, and to develop trade, commerce, industry and employment
opportunities in the City.
WHEREAS, pursuant to the Agreement both the City and the DDA have approved such
Master Plan; and,
WHEREAS, the City on the 14th day of August 2018 approved that certain
Intergovernmental Downtown Development Contract to provide for the issuance of bonds by the
DDA in support of such project; and,
WHEREAS, the DDA and Augusta Developers, LLC have entered into a Purchase, Sale
and Development Agreement setting for the terms and conditions of a sale of the Property from
the DDA to Augusta Developers, LLC, a copy of which is attached hereto as Exhibit"A".
NOW THEREFORE, in consideration of the mutual promises, covenants and undertaking
set forth herein, and detailed in the aforesaid recitals, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the
City and the DDA do agree as follows:
1.
That the Agreement is hereby amended to provide that upon the completion and satisfaction
of all terms and conditions contained in the Authorizing Resolution,Intergovernmental Downtown
Development Contract and the Purchase, Sale and Development Agreement between the DDA
and Augusta Developers, LLC, the City shall transfer all title and interest in the Property to the
DDA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in three counterparts each to be considered as an original by their authorized representative, on the
day and date hereinabove written.
- 2 -
First Amendment to Intergovernmental Agreement 10-24-18
D
AUGUSTA-RICHMOND COUNTY
CONSOLIDATED GOVERNMENT
By:
Its: Mayor
DOWNTOWN DEVELOPMENT AUTHORITY
OF AUGUSTA-RICHMOND COUNTY,
GEORGIA
By:
Its: Chairman
- 3 -
First Amendment to Intergovernmental Agreement 10-24-18
4 .
•
Exhibit A
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PURCHASE,SALE AND DEVELOPMENT AGREEMENT
THIS PURCHASE, SALE AND DEVELOPMENT AGREEMENT (this
"Agreement") is made and entered into as of this day of 604 oe 2018 (the
"Effective Date")by and between THE DOWNTOWN DEVELOPMENT AUTHORITY OF
AUGUSTA-RICHMOND COUNTY, a corporate body politic, whose address is 936 Broad
Street, Suite 107 Augusta, GA 30901 (the"Authority"), AUGUSTA DEVELOPERS LLC, an
Alabama limited liability company, whose address is 120 18th Street South, Suite 201,
Birmingham,AL 35233("))eveloner").
RECITALS
1. . WHEREAS, pursuant to that Intergovernmental Agreement and Preliminary
Development Agreement set forth below, and subject to the final approval of an Amended
Intergovernmental Agreement,the Authority intends to acquire and has the authority to negotiate
the sale of, that certain 6.27 acres, more or less, of real property with a street address of 511
Reynolds Street in the City of Augusta-Richmond County, Georgia(the"City"), as depicted on
the tax map attached as Exhibit"A" (the "Property"), which Developer wishes to acquire (the
exact acreage to be acquired to be determined by mutual agreement of the parties following a
survey of the Property pursuant to Section 10 below),improvements of any nature located on the
Property and all fixtures attached or affixed thereto. Provided, however, the Property to be
conveyed to Developer at Closing(as defined in Section 8.1 below)shall not include that portion
of the Property upon which the historic railroad depot building(the"Historic Depot")is located,
which portion of the Property(as more particularly discussed in Section 10.1 below,the"Depot
Parcel")shall be conveyed at Closing to a to-be-formed joint venture consisting of the Authority
and Developer(or their respective affiliates)formed for the purpose of rehabilitating the Historic
Depot. The Property shall also include all easements, rights of way, privileges, licenses,
appurtenances and other rights and benefits belonging to or running with tlx Property,or related
to the Property and belonging to the Authority and/or its predecessors in interest;and,
2. WHEREAS, the Authority and the Augusta-Richmond County Consolidated
Government Georgia (the "Ci r") are formulating designs for supportive infill development to
04349141.1
enhance the number of businesses, visual appeal, and economic health of Downtown Augusta
and the Authority is desirous of the Property being developed pursuant to the Project
Development Plan (as more particularly described in Section 5.1 below) that furthers the
economic interest of Downtown Augusta and residents of the City of Augusta,Georgia;and,
3, WHEREAS,the Authority entered into an Intergovernmental Agreement with the
City on May 4, 2016 (hereinafter the "IGA," a true, correct and complete copy of which,
including all exhibits, is attached hereto as Exhibit"B" and is incorporated into this Agreement
by reference as if fully set forth herein), whereby the City agreed to transfer the portions of the
Property owned by the City to the Authority pursuant to that IGA and the Preliminary
Development Agreement set forth below, and subject to the final approval of an Amended
Intergovernmental Agreement;and,
4. WHEREAS, the principals of Developer have extensive experience in the
development of urban development sites, including structuring and financing the construction of
such developments;and,
5. WHEREAS, Developer and the Authority have entered into that certain
Preliminary Development Agreement dated August 18, 2016 (hereinafter the "Preliminary
Development Agreement" and "Assignment of Preliminary Development Agreement") at true,
correct and compete copy of which, including all exhibits, is attached hereto as Exhibit "C"
regarding the development of the Property;and,
6. WHEREAS, Developer has developed the Project Development Plan, which is
consistent with the goals and objectives of the Authority and the provisions of the Preliminary
Development Agreement;and,
7. WHEREAS, the Authority and Developer wish to enter into this Agreement in
order to evidence and confirm various understandings between them with respect to certain
rights and obligations with respect to the process of implementing the Project Development Plan,
as the same may be amended from time to time pursuant to the provisions of Section 5 below,and
the related purchase and sale of the Property.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged by the parties hereto,the Authority and Developer agree as follows:
•
04349141.1 2
41
1 Recitals. The recitals set forth above are true and correct, and incorporated into this
Agreement as if fully set forth herein,
2 General Intent/Effective Date. The purpose of this Agreement is to set forth the
understanding of the parties with respect to certain rights and obligations in connection with
the terms and conditions for the purchase and redevelopment of the Property by Developer.
The parties hereby recognize that one of the objectives of the redevelopment of the Property
is to ensure that the Project Development Plan and facilities contemplated therein not only
meet requirements of both the Authority and Developer,but also that such plan and facilities
are designed to optimize the long-term success of Downtown Augusta. This Agreement
represents the mutual intent of the parties to transfer title to the Property for purposes of
redeveloping it consistent with the Project Development Plan, as the same may be amended
from time to time pursuant to the provisions of Section 5 below. The parties agree that this
document shall become effective upon its execution by both parties(the`Effective Date"),
3 Selection of Developer. The Authority acknowledges and agrees that (a) a joint-venture
development team consisting of BLOC Global and Retail Specialists was selected by the
Authority as the"preferred developer"of the Property pursuant to action by the Authority on
or about July 14, 2016 and (b) the Authority has the authority to negotiate the terms and
conditions of the development of the Property with Developer generally in accordance with
applicable laws. In consideration of the performance by Developer of its obligations
hereunder, during the duration of this Agreement, the Authority agrees to refrain from (i)
soliciting (whether formally, informally, directly or indirectly) proposals or responding to
unsolicited proposals or inquiries from any other party regarding the development of the
Property or the Project Development Plan and (ii) entering into any other commitments,
written or oral,with any other party in connection with or related to the Property or the Project
Development Plan.
4 Developer and Sale. Authority agrees to sell to Developer the Property(less and except the
Depot Parcel)upon the terms and conditions hereinafter provided.
04349141.1 3
5 Development Plan.
5.1 In accordance with the Preliminary Development Agreement, Developer
has submitted and the Authority has approved those certain preliminary
development plans, including a preliminary budget and site plans, all of
which constitutes the "Project Development Plan" referenced in this
Agreement,a true and correct copy of which is attached hereto and made a
part hereof as Exhibit "D". The Project Development Plan contemplates
that the Property shall be developed in two(2)phases(each a"Phase of the
Project"). "Phase I" shall consist of the approximately 16,000 square foot
Historic Depot in a manner that qualifies for state and federal historic
rehabilitation tax credits and approximately 140 residential units,
approximately 5,000 square feet of retail space, a Community Greenspace,
a such temi is defined in the Project Grant Agreement, and a structured
parking facility containing approximately 490 spaces. "Phase II".shall
consist of multi-story office building containing approximately 100,000
square feet of Class A office space and a structured parking facility
containing approximately 352 spaces. Phase II may change by mutual
agreement of the parties based on market demand and other changes
pursuant to Section 5.2.1 below.
5.2 Amendments to the Project Development Plan. At any time prior to the
commencement of construction, but not more that twenty-four(24)months
following the Effective Date, Developer may prepare and submit one or
more proposed amendments to the Project Development Plan, representing
any Material Deviation as that term is defined in the Project Grant Agreement,for
review and comment by the Authority.
5.2.1 Content of Initial Submission. Any submission related to
an amendment to the Project Development Plan (each an
"Initial Submission") shall include sufficient
documentation evidencing the need to amend the Project
04349141.1 4
Development Plan, including, but not limited to, any
material changes or updates (or both) to following: (i) the
development budget, (ii) the proposal for contemplated
phases of construction and development, (iii) the
construction schedule, (iv) relevant local, regional or
national market changes, (v) the development pro forma,
including the mix of equity, debt and public funding
approved in furtherance of the Project Development Plan,
and, if available,(vi)any other supporting material(such as
architectural and engineering plans or marketing studies)
evidencing the need to amend the Project Development
Plan. Provided further that any Initial Submission by the
Developer after the Phase I Commencement Deadline, but
prior to commencement of Phase II, shall include an
itemized list of all costs incurred by the Developer relative
to the preparation of such Initial Submission.
5.3 Initial Review by the Authority. Within thirty (30)days of receipt by the
Authority of a proposed amendment (or amendments) to the Project
Development Plan,the Authority shall consult with the City and provide to
Developer written comments and suggested revisions, if any,to the Project
Development Plan (the "Initial Response"). During such 45-day period,
the Authority may reasonably request Developer to participate in one or
more public meetings regarding the proposed amendment(s).
5.4 Revisions to the Initial Submission, Developer shall have up to thirty (30)
days after its receipt of the Initial Response to incorporate any comments or
revisions to the Initial Submission into a revised amendment to the Project
Development Plan and to submit the same to the Authority for its final
approval.
5.5 Approval of Amendments to the Project Development Plan. The Authority
shall have up to thirty(30) days after receipt of the revisions contemplated
in Section 5.4 above from Developer to accept or reject the same, unless
04349141,1 5
the time is extended by the written agreement of Developer and the
Authority, The Authority agrees not to unreasonably withhold its consent
or agreement to amendments to the Project Development Plan or any
matter related thereto. Approval of any amendments to the Project
Development Plan shall not be construed to be an approval by the City. If
the Authority and Developer are unable to develop and agree upon an
amendment to the Project Development Plan within•one hundred twenty
(120) days after the Authority's receipt of the Initial Submission, then
Developer may, if prior to Closing, elect to terminate this Agreement
pursuant to the provisions of Section 14.2.1 below or if after Closing the
Authority may elect to exercise its right of repurchase pursuant to the
provisions of Section 9 below.
5.6 Changes after the commencement of construction. Any proposed changes
to the Project Development Plan after the commencement of construction
shall be governed by the terms of that certain Grant Agreement to be
entered into between the parties,
6 Purchase Price;Earnest Money
6.1 Purchase Price. The purchase price ("Purchase Price") for the Property is
the sum of ONE DOLLARS($1.00)payable by Developer to the Authority
in cash at closing Nothing in this agreement shall prohibit Developer from
further subdividing Phase II and developing an outparcel at the corner of 6th
Street and Reynolds Street and the Authority shall execute any documents
requested by Developer. Provided however,the Developer shall not sell or
transfer such outparcel prior to the Phase I Commencement Date, as
defined hereinafter, except with the express written consent of the
Authority.
6.2 Earnest Money. Developer shall deposit, as earnest money, the amount
specified below,which amount shall be due and payable as follows:
6.2.1 Within ten (10) days of execution of this Agreement by
04349141.1 6
both parties, Developer shall deliver to Roll Title, LLC,
3595 Grandview Pkwy, Suite 275,Birmingham,AL 35243
(the"Escrow Agent") the sum of Fifty Six Thousand Two
Hundred Fifty Dollars ($56,250) (the "Earnest Mone'").
The Earnest Money shall be held by Escrow Agent and
disbursed in accordance with Sections 6.2.3 and 62.4
below.
6.2.2 Notwithstanding the ultimate disposition of the Earnest
Money pursuant to the terms of this Agreement,all interest
thereon shall accrue to,and be paid to Developer from time
to time, but in all events, upon the release, return or
application of the Earnest Money as provided hereunder,
6.23 In the event of (i) any termination of this Agreement by
Developer pursuant to Section 14.2 below; or, (ii) any
breach of this Agreement by the Authority, all Earnest
Money and any other monies held in escrow by Escrow
Agent, other than One Hundred and No/100 Dollars
($100.00) to be delivered to Authority as consideration for
entering into this Agreement, shall be refunded to
Developer, and Developer shall have no further liability
under this Agreement, except for the survival of certain
provisions as herein specifically provided.
6.2,4 Upon Closing, the Earnest Money shall be refunded to
Developer. Should Developer fail to close without proper
termination of this Agreement, the Earnest Money shall be
provided to the Authority as set forth in Section 19.1 of this
Agreement.
6.2.5 Should Developer desire to extend the Closing Date as
provided for in Section 8.2 below, Developer shall deposit
with the Escrow Agent an additional sum of FIFTY
THOUSAND AND NO/100 DOLLARS($50,000.00)to be
04349141.1 7
•
added to•the Earnest Money and to be disbursed in like
manner.
6.1.1
7 Conditions Precedent to Closing. This Agreement and the obligation of Developer
hereunder are expressly conditioned on the following conditions precedent(collectively, the
"Closing Conditions")being in effect or complied with on and as of the Closing Date and the
Authority covenants that it will use commercially reasonable efforts to cause such conditions
to be in effect or complied with on and as of such date:
7.1 The Title Commitment(as defined in Section 12.1 below),as marked up as of
the Closing Date, shall disclose good and marketable title to the Property
vested in the Authority, free and clear of all encumbrances except the
Permitted Encumbrances(as defined in Section 12.1.1 below).
7.2 Expiration or waiver by the Developer of the Due Diligence Period set forth in
Section 11 below.
7.3 Developer shall have provided to the Authority for the Authority's approval,
which approval shall not be unreasonably withheld or delayed,the following:
7.3.1 An updated feasibility and rate study for the residential
units to be constructed in Phase 1;
7.3.2 A feasibility study for the Class A office space to be
constructed in Phase 13;and,
7.3.3 An estimate of the number of jobs, both temporary and
permanent, to be created by the Project and the business
sectors in which such jobs are expected to be created.
7.4 The Authority's representations and warranties set forth in this Agreement
shall remain true and correct in all material respects.
7.5 The Authority shall have performed all of its other obligations under this
Agreement.
7.6 All zoning approvals have been obtained to permit Developer's proposed use
of the Property, and all periods, if any provided or permitted by law for
administrative or judicial appeal of such zoning approvals have expired and
04349141.1 8
all suits or appeals, if any, challenging such zoning approvals have been
dismissed finally and conclusively in favor of such zoning approvals.
7.7 With respect to the Depot Parcel(as defined in Section 10.1 below),
7.7.1 formation by the Authority (or its nominees) of a taxable
single-asset entity(the"Blocker Entity")and confirmation,
as applicable, that such entity has made or will make an
election under Section 168(h)(6)(F)of the Internal Revenue controlledCode of 1986, as amended, not to be treated as a tax-
exempt entity.
7.7.2 formation of a joint venture entity consistent of the Blocker
Entity and Developer (or its nominee) and execution of
definitive transaction documents relating to the ownership
and management of the Historic Depot and the Depot
Parcel.
7.8 Execution by both the Authority and the Developer of that certain Grant
Agreement between the parties in substantially similar form as that attached
hereto as Exhibit"E".
7.9 Execution by both the Authority and the Developer of'a PILOT Agreement for
the payments in lieu of taxes,that will be covenant running with the land, by
which Developer agrees to pay an amount equal to the difference between the
ad valorem property taxes that would be due on the Property each year if that
certain amendment to the Constitution of the State of Georgia of 1976 (1982
Georgia Laws pages 2616 to 2617, inclusive,were repealed and the actual ad
valorem property taxes that are due for such year on the Property. Such
payment shall include those ad valorem taxes due both the Consolidated
Government and the Richmond County School District.
7.10 Certified copy of the resolution of the Authority authorizing the issuance
of twelve million on hundred twenty-five thousand dollars$12,125,000.00)in
revenue bonds (the "Revenue Bonds") in support of the Project Development
Plan.
7.11 Approval and rendering of a final judgment by the Superior Court of
04349141.1 9
Richmond County of the validity of the issuance of the Revenue Bonds and of
any and all documents necessary for the approval of or to effectuate the
issuance of such bonds(the"Validation").
7.12 Expiration of any and all appeal periods at law or in equity relating to the
Validation.
7.13 The Authority shall have issued the Revenue Bonds.
8 Closing.
8.1 Closing Date. "Closing" shall be held on or before the thirtieth (30th) day
following the satisfaction of the Closing Conditions,unless extended pursuant
to Section 8.2 hereunder (the "Closing Date"), or on such date prior to the
Closing Date as may be agreed upon by Developer and the Authority, at a
location in the metro Atlanta,Georgia area or by mail or courier if acceptable
to the parties.
8.2 Closing Extension. Upon delivery of the additional Earnest Money as set
forth above,Developer,at Developer's sole discretion may extend the Closing
Date an additional sixty(60)days from the date set forth in Section 8.1 above.
Notwithstanding any other provision contained herein to the contrary, the
Closing shall occur on or before one year after execution of this Agreement,
unless mutually agreed otherwise by the parties hereto.
8.3 Developer Required to Deliver. At Closing, Developer shall deliver to the
Authority the Purchase Price in the form set forth in Section 6.1 above.
8.4 Authority Required to Deliver. On or before the Closing Date, the Authority
shall execute and deliver to Developer the following items:
8.4.1 Evidence satisfactory to Developer of the Authority's
authorization.to convey or transfer portions of the Property
currently titled to the City.
8.4.2 An executed copy of that certain Grant Agreement between
the parties in substantially similar form as to that attached
hereto as Exhibit"E",
8.4.3 A duly executed and acknowledged statutory warranty
deed,in recordable form conveying fee title to the Property
04349141.1 10
(except the Depot Parcel), subject only to Permitted
Encumbrances.
8.4.4 A duly executed bill of sale in customary form for a
transaction of this nature,
8.4.5 A certification that Authority Is not subject to withholding
under Section 1445 of the Internal Revenue Code of 1986,
as amended.
8.4,6 Such information, affidavits, easements and documents as
may be reasonably required by the Title Company and
which are customary for transactions of this nature.
8.4.7 Certificates of the Authority that its representations and
warranties contained in this Agreement are true,correct and
complete as of the Closing Date.
8.5 Tax Prorations. The following shall be prorated as of the Closing Date: any
and all non-delinquent real and personal property taxes and other approved
assessments related to the Property,which are then due and payable,
9 DEED RESTRICTION,
9.1 The deed conveying title to Developer shall be subject to the Permitted
Encumbrances and contain restrictions in substantially the form as follows:
9.1.1 Developer agrees that it must commence construction of
Phase I in accordance with its approved Project
Development Plan within one hundred eighty (180) days
after the Closing Date (the "Phase I Commencement
Deadline") and diligently continue construction to
completion. For purposes of this restriction, Developer
shall be deemed to have "commenced construction" on the
date when Developer executes a contract with a licensed
contractor to construct Phase I. In the event that Developer
voluntarily fails to commence construction by the Phase I
Commencement Deadline or abandons the development of
04349141.1 11
the Property after commencing construction and prior to
substantial completion for a period of time in excess of
sixty (60) consecutive days, then the Authority (upon
written demand by the Authority to Developer within
ninety(90)days after the Phase I Commencement Deadline
or such abandonment by Developer) shall have the right,
but not the obligation, to reacquire the Property with the
closing to take place no later than ninety (90) days after
such demand. The Authority and Developer agree that, in
such event, the repurchase price shall be equal to the sum
of One Dollar ($1.00) plus all out of pocket third party
costs and expenses actually incurred by Developer in
regard to its development of the Property,not paid for from
the proceeds of the bond issue described in 7.8 above and
subject to the limitations set forth below. Such third party
costs and expenses as referenced herein shall be determined
by Developer's production of verifiable invoices submitted
to the Authority and shall not include any interest charges,
loan fees or carrying charges, closing costs,attorneys' fees,
personal expenses or general overhead expenses of
Developer.
9.1.2 In the event of the reconveyance by Developer to the
Authority of the Property as provided above, then
Developer shall reconvey the Property to the Authority
subject only to the same terms, conditions, liens,
restrictions,and exceptions which were of record and stated
in the deed by which the Property was conveyed to
Developer or as otherwise approved by the Authority. Any
mortgage loan encumbering the Property shall be released
of record. The parties also will make prorations at the
repurchase closing on the same basis as provided in this
04349141.1 12
Agreement for the transfer of the Property from the
Authority to Developer.
9.1.3 The Authority acknowledges that the Project Development
Plan may include a deferral of the construction start for
Phase II until not more than sixty (60) months after the
Closing Date. Developer agrees that it must commence
construction of Phase II in accordance with the Project
Development Plan, as the same may be amended from time
to time pursuant to the provisions of Section 5 above,within
sixty (60) months after the Closing Date ("Phase II
Commencement Deadline") and diligently continue
construction to completion. For purposes of this restriction,
Developer shall be deemed to have "commenced
construction" on the date when Developer executes a
contract with a licensed contractor to construct Phase II. In
the event that Developer voluntarily fails to commence
construction of vertical improvements by the Phase II
Commencement Deadline or abandons the development of
the Property after commencement and prior to substantial
completion for a period of time in excess of sixty (60)
consecutive days, then the Authority's sole remedy (upon
written demand by the Authority to Developer within
ninety (90) days after the Phase II Commencement
Deadline or such abandonment by Developer) shall be the
right, but not the obligation, to reacquire the Phase II
Property with the closing to take place no later than ninety
(90)days after such demand. The Authority and Developer
agree that,in such event,the repurchase price shall be equal
to the sum of One Dollar($1.00)plus either(i)that amount
of costs set forth in the Initial Submission,if the repurchase
is prior to commencement of construction;or,(ii)all out of
04349141.1 13
pocket third party costs and expenses actually incurred by
Developer in regard to its development of the Property,not
paid for from the proceeds of the bond issue described in
7.8 above and subject to the limitations set forth below.
Such third party costs and expenses as referenced herein
shall be determined by Developer's production of verifiable
invoices submitted to the Authority and shall not include
any interest charges,loan fees or carrying charges, closing
costs, attorneys' fees, personal expenses or general
overhead expenses of Developer, if the repurchase is after
commencement of construction.
9.1.4 In the event of the re-conveyance by Developer to the
Authority of the Phase II Property as provided above,then
Developer shall re-convey the Phase II Property to the
Authority subject only to the same terms, conditions, liens,
restrictions,and exceptions which were of record and stated
in the deed by which the Phase II Property was conveyed to
Developer or as otherwise approved by the Authority. Any
mortgage loan encumbering the Phase II Property shall be
released of record. The parties also will make prorations at
the repurchase closing on the same basis as provided in this
Agreement for the transfer of the Phase II Property from
the Authority to Developer.
9.1.5 Upon closing as provided for in either Section 9.1.1 or
9.13 above, Developer shall assign, to the extent
assignable, all of its right, title and interest in and to any
contracts,permits or warranties relating to the development
of the applicable portion of the Property.
9.1.6 Notwithstanding the above, in the event that Purchaser is
unable to commence construction by the Phase I
04349141.1 14
Commencement Deadline or the Phase II Commencement
Deadline for reasons that are wholly out of Developer's
control ("Force Majeure"), including, but not limited to,
acts of God or the public enemy, strikes, lockouts, work
slowdowns or stoppages or other labor disputes,
insurrections,riots or other civil disturbances, orders of the
government of the United States of America or of any state
of the United States of America or of any of the
departments, agencies, political subdivisions or officials of
the United States of America or of any state thereof, or
orders of any other civil or military authority, or partial or
entire failure of public utilities, adverse economic
conditions or any other condition or event beyond the
reasonable control of Developer, each of the Phase I
Commencement Deadline and the Phase II Commencement
Deadline shall be extended for a period equal to the period
of such Force Majeure.
9.1.7 The deed by which the Property is conveyed by the
Authority to Developer shall state the repurchase option
above stated.
10 Survey.
10.1 Within thirty(30)days following the Effective Date, the Authority, at its
sole cost and expense, shall cause current ALTA surveys (hereinafter referred
to collectively as the"Survey")to be made of the Property and the portion of
the Property relating to each Phase of the Project by a Georgia registered land
surveyor in accordance with the survey requirements set forth on the attached
Exhibit"F". At Closing, if any, Developer shall reimburse the Authority for
the reasonable costs of the Survey. The Survey shall reflect the acreage of the
Property to the nearest One One-Thousandth (1/1000) acre setting forth the
boundaries and exact acreage of those portions of the Property designated on
the Survey as "Phase I" (the "Phase I Property"), "Phase IF' (the "Phase H,
043491413 15
Property")and"Historic Depot"(the"Depot Parcel"),respectively,
10.2 The Authority shall deliver three (3) prints of the Survey, along with an
electronic version in computer-aided drawing (CAD) format, together with a
legally sufficient description of the metes and bounds of the Property based on
the Survey,to Developer no later than sixty(60)days following the Effective
Date,whereupon such description of the Property shall become a part of this
Agreement without the necessity of any further action by any of the parties
hereto.
11 Due Diligence Period. For the period commencing on the Effective Date of this Agreement
and ending two hundred seventy(270)days thereafter,which period may be extended as set
forth below (such period, as it may be extended, is hereinafter called the "Due Diligence
Period"), Developer shall have the right to perform or cause to have performed such
inspections, surveys, tests, studies, inquiries, analyses and investigations of the Property as
Developer shall deem necessary, appropriate or desirable (including but not limited to, soil
and groundwater tests,test borings, engineering analyses and studies and environmental site
assessments) in order to confirm that the Property can be developed for Developer's
proposed use of the Property. Developer, in Developer's sole discretion, shall have the right
upon written notice to Authority to terminate this Agreement for any reason or for no reason
prior to the expiration of the Due Diligence Period. Upon such written notice to the
Authority to terminate this Agreement, this Agreement shall be null and void, the Earnest
Money shall be disbursed in accordance with Section 6.2 above, and the parties hereto shall
be relieved of all further obligations and liability under this Agreement. Developer shall hold
Authority harmless for any and ail costs,expenses,liabilities and damages resulting from the
performance by Developer or Developer's representatives of such tests, inspections, or
examinations, and shall deliver to Authority copies of such tests, surveys, etc., within ten
(10)days of a request from the Authority.
True and complete copies of the following documentation,which the Authority may have
in its possession or control shall be delivered to Developer within thirty(30) days following
the Effective Date (collectively, the "Diligence Documents"): (i) existing environmental,
engineering reports or studies of any buildings at the Property, (ii) existing title policy and
underlying title documents, (iii)existing ALTA surveys of the Property and any other recent
44349141.1 16
Property surveys, and (iv) all notices of violation noted in or issued by any governmental
authority having jurisdiction against or affecting the Property, The Authority makes no
representations regarding the reliability of any Diligence Documents provided under this
paragraph and Developer shall make its own inquiries and determinations regarding all due
diligence maters.
12 Examination of Title and Defects in Title.
12.1 Within ninety(90)days after the Effective Date,Authority shall provideto
Developer a certified copy of the Amended Intergovernmental Agreement
authorizing the sale of the Property by the City to the Authority and the
Developer shall (i) obtain and provide to the Authority, at Developer's sole
cost and expense, copies of all recorded documents affecting title to the
Property, along with a title commitment (the "Title Commitment") for an
owner's title insurance policy for the Property issued by national title
insurance company (the "Title Company"), (ii) examine record title to the
Property, (iii)review the Survey (such actions, collectively, the "Initial Title
Examination") and (iv) notify the Authority in writing (the "Title Objection
Notice")of any objections affecting title to the Property based on matters of
record title or shown on the Survey. For avoidance of doubt,Developer shall
deliver its TItle Objection Notice, if any, to the Authority no later than 5PM
Eastern Standard Time on the one hundred fiftieth (150'h) day following the
Effective Date. The Authority shall deliver a response notice(the "Response
Notice") to Developer within twenty (20) days after receipt of the Title
Objection Notice (the "Response Period") setting forth those matters in the
Title Objection Notice, if any,that the Authority will cure prior to the Closing
Date. If the Authority has not given the Response Notice by the end of the
Response Period, the Authority shall be deemed to have given notice that it
does not intend to cure any of the matters set forth in the Title Objection
Notice; or if the Response Notice does not include all of the matters set forth
in the Title Objection Notice, the Authority shall be deemed to have given
notice that it does not intend to cure any of the matters set forth in the Title
04349141,1 17
Objection Notice not so included. Except for Mandatory Cure Items (as
hereinafter defined),the Authority shall have no obligation to satisfy, correct
or cure any matters set forth in the Title Objection Notice, Notwithstanding
anything herein to the contrary,the Authority shall be obligated to remove or
discharge (1) any monetary encumbrance arising by, through, or under the
Authority or the City, and (ii) any other title matter arising by, through, or
under the Authority(or its predecessor in interest), without Developer's prior
consent and which can be cured by the payment of money,which first appears
after the date of the Title Commitment(collectively,whether one or more,the
"Mandatory Cure Items"). Should the Authority fail to satisfy,correct or cure
any Mandatory Cure Items, Developer shall be entitled to cure and remove
such Mandatory Cure Items,the costs of which cure(s)shall be deducted from
and credited against the Purchase Price. In the event the Authority does not
agree in writing to cure any title objections or is deemed not to have agreed to
cure any matters set forth in the Title Objection Notice, Developer shall be
entitled to terminate this Agreement prior to the end of the Due Diligence
Period, and Developer otherwise waives any objection or recourse related to
matters which the Authority has not agreed to cure as of the date of the Title
Objection Notice. If the Authority agrees to cure any title matters in its
Response Notice,then the Authority shall have until the Closing Date to cure
or terminate any such defects or objections. In the event that the Authority
fails to cure or terminate any such identified defects or objections that it
agreed to cure in the Response Notice within the period hereinabove set out,
then Developer,at its option,may elect to:
12.1,1 Waive any such survey or title defect or objection and
consummate the transaction without reducing the Purchase
Price (any matters so waived by Developer or appearing in
the Initial Title Examination or any update thereto and not
objected to by Developer shall be deemed "Permitted
Encumbrances");or
12.1.2 Terminate this Agreement by written notice to the
04349141.1 18
Authority,whereupon all Earnest Money shall be disbursed
pursuant to Section 6.2 above, and thereafter no party to
this Agreement shall have any rights, obligations or
liabilities hereunder.
12.2 From and after the date of the Initial Title Examination through the
Closing Date, Developer may from time to time during the term of this
Agreement make further examinations of title and update the Survey, and
Developer may object to any matters of title first appearing of record after the
later of the (i) effective date of such Initial Title Commitment; or (ii) the
effective date of the most recent title examination by giving the Authority
written notice of any such defects or objections, The Authority shall
thereafter have until the Closing Date(or such longer period as Developer,in
its sole discretion, consents to in writing) in which to cure or terminate any
such defect or objection. If the Authority is unable or refuses to remove or
cure such additional title objections, then Developer shall be entitled to
exercise the rights enumerated in Sections 12.1.1 and 12.1.2 hereof.
13 Warranties of Authority. The Authority warrants to Developer as follows:
13.1 The Authority has the right, power and authority to enter into this
Agreement and to sell the Property in accordance with the terms hereof, and
neither the Authority nor the City has granted an option to any other person or
entity with respect to any portion of the Property.
13.2 To the best of the Authority's knowledge,none of the Property lies within
a flood plain or designated wetlands area.
13.3 The Authority has not received notice of and is not aware of any suits,
judgments,or violations relating to or at the Property of any zoning,building,
fire, health,pollution, environmental protection, or waste disposal ordinance,
code,law or regulation which has not been heretofore corrected.
13.4 There is no suit or judgment presently pending or,to the best knowledge
and belief of the Authority, threatened which would create a lien upon the
Property in the hands of Developer after Closing; and the Authority shall give
04349t41.1 19
prompt notice to Developer of any such suit or judgment filed, entered or
threatened prior to Closing.
13.5 There are no pending or to the best of the Authority's knowledge, no
threatened or contemplated eminent domain proceedings affecting the
Property or any portion thereof; and the Authority shall give prompt notice to
Developer of any such proceedings which occur or are threatened prior to
Closing.
13.6 The Authority is not involved in any bankruptcy, reorganization or
insolvency proceeding.
13.7 All taxes, assessments, water charges and sewer charges affecting the
Property or any portion thereof due and payable at the time of the Closing
shall have been paid. All special assessments which are or will become a lien
known to the Authority at the time of Closing on the Property shall also have
been paid and discharged whether or not payable in installments.
13.8 There are no parties in possession of the Property or entitled to possession
thereof other than the Authority and/or the City.
13.9 Except as previously disclosed in writing to Developer by the Authority,
with the acknowledgment by the parties that, and without any warranty or
representation of investigation or study, the Authority has no knowledge of
any action on the Property that has resulted in the contamination of the site or
ground water or any other condition requiring corrective action. Furthermore,
the Authority has not received a summons, citation, directive, letter or other
communication, written or oral, from any governmental authority as to any
environmental concerns. The Authority shall cooperate with Developer's
investigation of matters relating to the environmental condition of the
Property. The Authority makes no warranties regarding the environmental
condition of the Property and Developer should perform any testing
Developer deems appropriate to determine the environmental condition of the
Property. The Authority agrees that Developer may make inquiries of
governmental agencies regarding such matters, without liability to Developer
for the outcome of such discussions.
04349141.1 20
13,10 The Authority has not received any written notice within the past twelve
(12) months of the Effective Date that either the Authority, the City or any
portion of the Property is in violation of Environmental Laws (as defined
below)which has not been cured or waived and which requires remediation or
response action. As used herein, a "Hazardous Material" means any
hazardous, toxic or dangerous waste, substance or material, as defined for
purposes of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any other federal, state or local law,
ordinance, rule or regulation, applicable to the Property, and establishing
liability standards or required action as to reporting, discharge, spillage,
storage, uncontrolled loss, seepage, filtration, disposal, removal, use or
existence of a hazardous,toxic or dangerous waste,substance or material.The
term `Environmental Laws" shall mean all statutes specifically described in
the foregoing sentence and all federal, state and local environmental health
and safety statutes, ordinances, codes, rule, regulations, orders and decrees
regulating, relating to or imposing liability or standards concerning or in
connection with Hazardous Materials.
13.11 The Authority agrees to maintain replacement cost insurance for any
casualty or fire on the Depot Building until closing.
14 Termination. In addition to all other rights of the parties under this Agreement as provided
by law (and not in lieu of any such rights), the parties shall have the following rights to
terminate:
14.1 The Authority may cancel and terminate this Agreement by written notice
to Developer and the Earnest Money shall be retained by the Authority if
Developer defaults or voluntarily fails to perform any affirmative obligation
of this Agreement,which default or voluntary failure continues for a period of
thirty (30) days after written notice from the Authority setting forth in
reasonable detail the nature and extent of such default or failure and
identifying the applicable provision(s) of this Agreement;provided, however,
04349141.1 21
if such default or failure cannot be cured within thirty (30) days, said cure
period shall be extended for a reasonable period of time to allow a cure so
long as Developer has begun to cure within said thirty(30)days and diligently
pursues a cure to completion;
14.2 Developer,at Developer's sole election and in Developer's sole discretion,
may cancel and terminate this Agreement by written notice to the Authority
and the Earnest Money shall be returned to Developer pursuant to the
provisions of Section 6.2 above if any one or more of the following conditions
or states of fact shall exist on or prior to the Closing Date (collectively, the
"Permitted Termination Conditions") (but, in the alternative, Developer may
in writing, at Developer's sole election and in Developer's sole discretion,
decline to cancel and terminate this Agreement by reason of any such
condition or state of fact, and proceed to consummate the transaction
contemplated hereby):
14.2.1 The Authority shall fail to approve any amendment the
Project Development Plan within the timeframe provided
for in Section 5 hereinabove, or otherwise authorize
Developer to proceed with such development;
14.22 If Developer elects to terminate pursuant to the provisions
of Section 12 hereinabove;
14.2.3 Authority shall not have cured any valid objections to or
defects in title as required by and within the time prescribed
in Section 12 hereinabove (with Earnest Money to be
treated as described in Section 12 hereinabove);
14.2.4 The failure of any of Authority's warranties set forth in
Section 13 hereinabove to be true and correct on the
Closing Date in the same manner and with the same effect
as if then made, Authority hereby expressly agreeing that
Authority will not cause or permit any action to be taken or
omitted between the date hereinabove first written and the
Closing Date which would cause any of such
04349141.1 22
representations to be untrue on the Closing Date;
14.2.5 Failure of Authority to deliver to Developer at Closing any
of the items described in Section 8.4 hereinabove;or,
14.2.6 During the Due Diligence Period the Developer determines
that changes in market conditions are such that any aspect
of the Project Development Plan is not viable economically
or that the Project cannot be financed using conventional
financing strategies.
15 Zoning Matters.
15.1 If requested by Developer, the Authority shall promptly apply with the
appropriate zoning body having jurisdiction over the zoning of the Property
(the "Zoning Authority"), and pursue in a timely and diligent manner the
rezoning of the Property from its present zoning classification to a zoning
classification with conditions acceptable to Developer to allow for a
development consistent with the Project Development Plan on the Property.
The Authority shall obtain such consents to the filing of such applications,
letters of intent, and other documents and information as the Authority
reasonably deems appropriate in seeking such rezoning.
15.2 Developer shall, within thirty (30) days of the filing of one or more
applications pursuant to Section 15.1 above (the "Application Date"), apply
with the Planning and Development Department of the City (the "Naga
Review Board"), and pursue in a timely and diligent manner the approval of
the architectural,facade materials,and other items as required by ordinance or
regulation to be approved by the Design Review Board. The Authority
consents to the filing of such applications and other documents and
information as Developer reasonably deems appropriate in seeking such
design review approval.
15.3 If Developer's application for such rezoning has not been duly and validly
approved by the Zoning Authority and the Date of Final Rezoning(as defined
below)has not occurred within one hundred and twenty(120)days following
04349141.1 23
the Application Date,then Developer may, by written notice delivered to the
Authority, terminate this Agreement thereby causing a release of the Earnest
Money in accordance with Paragraph 6.2.3.
15.4 The "Date of Final Rezoning" means the date on which the following
conditions are first satisfied: (i) the Property has been duly rezoned by the
Zoning Authority, pursuant to the Authority's application for rezoning, to a
zoning classification that will allow the construction and operation of a
development consistent with the Project Development Plan and with
conditions acceptable to Developer in its sole discretion; (ii)all periods, if any
provided or permitted at law or in equity for administrative or judicial appeal
of such rezoning have expired;and(iii)all suits or appeals,if any,challenging
such rezoning have been dismissed finally and conclusively in favor of such
rezoning.
16 Possession of the Property. The Authority shall deliver possession of the Phase I Property
and Phase II Property to Developer at Closing.
17 J3r+okers. Developer and the Authority each represent and warrant that neither they nor their
affiliates have dealt with any broker, finder or the like in connection with the transaction
contemplated by this Agreement,To the extent allowed by law,the Authority and Developer
agree to indemnify, defend and hold the other harmless from and against all loss, expense
(including reasonable attorneys' fees), damage and liability resulting from the claims of any
broker or finder other than the broker (or anyone claiming to be a broker or finder) on
account of any engagement or agreement alleged to have been made by the indemnifying
party in connection with the transactions contemplated by this Agreement.
18 Transaction Costs.
18.1 Developer's Costs. Except as otherwise provided for herein, Developer
shall pay Developer's legal fees,financing source fees,including fees for third
party reports required by any lenders,costs of all inspections of the Property;
with respect to Developer's debt financing, all recording taxes and fees,
04349141.1 24
documentary stamps, intangible taxes and other fees, charges and expenses of
delivering or recording the documents which evidence or secure such debt,
title search fees for owner's and mortgagee's title insurance policies, and the
costs of the Survey.
18.2 Authority's Costs, Except as otherwise provided for herein, Authority
shall pay Authority's legal fees, any prepayment or other penalties or fees
payable in connection with the payoff of existing indebtedness on the
Property, and any transfer, stamp, real estate conveyance or similar tax
payable on the transfer of the Property and all recording fees relating to title
clearance matters.
18.3 Other Costs. Except as otherwise provided for herein all costs or expenses
incurred in the performance of the parties' respective obligations hereunder
and of the consummation of the transactions contemplated herein that have
not been specifically assumed by either party under the terms hereof shall be
borne by the party incurring such cost or expense.
19 Liatuidated Damages to Authority,Remedies of Developer.
19.1 In the event that Developer refuses to accept title to the Phase I Property
as required by this Agreement, through no fault of the Authority,the Earnest
Money shall be retained by the Authority as fixed and full liquidated damages,
not as a penalty, but as the parties reasonable estimate of damages and in such
event neither Developer nor the Authority shall have any further rights or
obligations hereunder or any remedies provided by law or equity.
19.2 In the event that Authority refuses to convey title to any portion of the
Property when required by this Agreement to do so, or otherwise defaults in
Authority's obligations hereunder;Developer shall be entitled to exercise all
rights and remedies available at law or in equity, including,without limitation,
specific performance and the right to bring a third party action for the refund
of the Earnest Money.
20 Cooperation, The Authority shall cooperate with Developer and publicly support Developer
04349141.1 25
in connection with any and all required permits, approvals or authorizations that may be
necessary or convenient for the development of the Property in accordance with the Project
Development Plan, including, but not limited to, any and all applications for (i) building
permits, demolition permits, excavation permits, licenses,rezoning or variance applications,
special permits, conditional use permits or other discretionary or non-discretionary zoning
requests relating to the construction or development on the Property, (ii) dedications,
vacations, subdivisions, =surveys or other land development matters, (iii) public works or
other agreements, utility casements, utilities and related governmental permits, (iv)
certificates of occupancy and (v) any other authorizations and approvals respecting the
Property(or any portion thereof)or the Project Development Plan.
21 Successors and Assigns. This Agreement shall apply to, inure to the benefit of, and be
binding upon and enforceable against the Authority and Developer and their respective heirs,
successors and assigns to the same extent as if specified at length throughout this Agreement.
Developer may assign this Agreement, without the prior consent of the Authority, to any
individual,partnership, limited partnership,limited liability company,corporation,syndicate,
or other business entity, in which the Developer, BLOC or Retail Specialists or a
combination of associates of these firms thereof maintains a controlling interest and which
shall agree to assume each of Developer's obligations hereunder,and,upon such assumption,
Any other assignment by the Developer of its rights hereunder shall require the written
consent of the Authority,which shall not be unreasonably withheld. Unless otherwise agreed
to by the Parties, pursuant to such consent the Developer shall be automatically deemed
released from all obligations hereunder without further confirmation or consent from the
Authority, . Developer may direct that title to the Property or any portion thereof be
conveyed to Developer or its nominee. In addition, Developer shall have the right to
collaterally assign or pledge its rights under this Agreement to any lender in connection with
any financing.
22 Counterparts. This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of such counterparts together shall constitute one and the
same instrument.
04349141.1 26
23 )tTotices, Notices hereunder shall be in writing and either hand delivered or sent by
recognized overnight courier or certified mail, return receipt requested to the parties at the
following addresses:
If to Developer:
Augusta Developers,LLC
%BLOC Global Development Group,LLC
505 North 20s'Street Suite 900
Birmingham,AL 35203
Attn:J.Michael Carpenter and Herschell Hamilton
with a copy to:
Augusta Developers,LLC
%Retail Specialists,LLC
12018`'Street South,Suite 201
Birmingham,AL 35233
Attn:Rodney Berstein
With a copy to(which shall not constitute notice):
Maynard Cooper&Gale,P.C.
1901 Sixth Avenue North,Suite 2400
Birmingham,AL 35203
Attn:C.Randall Minor
If to the Authority:
Downtown Development Authority of Augusta-Richmond County
936 Broad Street,Suite 107
Augusta,Georgia 30901
Attention: Margaret Woodard
04349141.1 27
With a copy to(which shall not constitute notice):
Turner Padget
209 Seventh St. 3'd Floor
PO Box 1495
Augusta,Georgia 30903-1495
Attn: James S.(Jeb)Murray
24 Miscellaneous.
24.1 Headings. The section and paragraph headings in this Agreement are
inserted only as a matter of convenience and for reference, and in no way
define,limit or describe the scope or intent of any provision hereof.
242 Jurisdiction. This Agreement shall be interpreted and construed in
accordance with and governed by the laws of the State of Georgia. Venue for
litigation concerning this Agreement shall be in Richmond County,Georgia.
243 Severance. Should any clause or provision of this Agreement be
determined to be illegal, invalid or unenforceable under any present or future
law by final judgment of a court of competent jurisdiction,the remainder of
this Agreement will not be affected thereby. It is the intention of the parties
that if any such provision is held to be illegal,invalid or unenforceable,there
will be added in lieu thereof a legal,valid and enforceable provision that is as
similar as possible in terms to the illegal, invalid or unenforceable provision,
which is agreed to by both parties.
24.4 Independent Contractor/Relationship of Parties. Except with respect to the
development of the Historic Depot,nothing contained herein shall be deemed
or construed as creating the relationship of principal and agent,partners,joint
venturers,or any other similar such relationship between the parties hereto.
24.5 Third Party Beneficiaries. Neither the Authority nor Developer intend to
directly or substantially benefit a third party by this Agreement. Therefore,
the parties agree that there are no third party beneficiaries to this Agreement
and that no third party shall be entitled to assert a claim against either of them
04349141.1 28
based upon this Agreement.
24.6 Negotiated Agreement. Both parties have substantially contributed to the
drafting and negotiation of this Agreement and this Agreement shall not,
solely as a matter of judicial construction, be construed more severely against,
one of the parties than any other. The parties hereto acknowledge that they
have thoroughly read this Agreement, including all exhibits and attachments
hereto, and have sought and received whatever competent advice and counsel
was necessary for them to form a full and complete understanding of all rights
and obligations herein.
24.7 Amendments. No modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written
document prepared with the same or similar formality as this Agreement
executed by the Authority and Developer.
24.8 Prior Agreements. This Agreement incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings
applicable to the matters contained herein and the parties agree that there are
no commitments,agreements or understandings concerning the subject matter
of'this Agreement that are not contained in this document, whether oral or
written.
24.9 Police/Regulatory Powers. Authority cannot,and hereby specifically does
not,waive or relinquish any of the City's regulatory approval or enforcement
rights as they may relate to regulations of general applicability which may
govern the subject matter of this Agreement. Nothing in this Agreement shall
create or be deemed to create an affirmative duty of Authority to abrogate the
City's sovereign right to exercise its police powers and governmental powers
by approving or disapproving or taking any other action in accordance with its
zoning and land use codes, administrative codes, ordinances, rules and
regulations, federal laws and regulations, and state laws and regulations. In
addition, nothing herein shall be considered the approval or issuance of a
development order or zoning by contract,or both.
24.10 Attorneys'Fees. If any party commences an action against the other party
04349141.1 29
to interpret or enforce any of the terms of this Agreement or as the result of a
breach by the other party of any terms hereof, the non-prevailing party shall
pay to the prevailing party all reasonable attorneys' fees, costs and expenses
incurred in connection with the prosecution or defense of such action,
including those incurred in any appellate proceedings, and whether or not the
action is prosecuted to a final judgment and also including any attorneys' fees,
costs and expenses incurred in connection with the enforcement of this
provision.
24.11 Waiver. No express or implied consent or waiver by a party to or of any
breach or default by the other party in the performance by such other party of
its obligations under this Agreement will be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligations of such other party
hereunder. Failure by a party to complain of any act or failure to act of the
other party or to declare the other party in default, irrespective of how long
such failure continues will not constitute a waiver by such party of its rights
hereunder. The giving of consent by a party in any one instance will not limit
or waive the necessity to obtain such party's consent in any future instance.
24.12 Remedies Cumulative. No power or remedy of either party provided In
this Agreement is intended to be exclusive of any other right, power, or
remedy except as may be otherwise expressly set forth herein; each right,
power and remedy is cumulative,concurrent and in addition to any other right,
power or remedy of either party now or hereafter existing at law or in equity.
Either party may pursue its rights, powers and remedies separately,
successively or together against the other party. Failure by either party to
exercise any right, power or remedy will not be construed as a waiver or
release of such right,power or remedy.
24.13 Press Releases and Public Announcements. Neither party shall issue any
press release or make any public announcement relating to the subject matter
of this Agreement without the prior written approval of the other party;
provided, however, that any party may make any public disclosure it believes
04349141.1 30
in good faith is required by applicable law(in which case the disclosing party
shall use its reasonable best efforts to advise the other party prior to making
the disclosure).
•
[Signatures are on the following page]
04344141.1 32
IN WITNESS WHEREOF, this Purchase, Sale and Development Agreement is agreed
upon and entered into effective as of the Effective Date,
DEVELOPER:
AUGUSTA DEVELOPERS LLC
an Alabama limited liability company
By:
Name: 1 Kth
Title:Manager
By: . ___1 '
Name: _111. Slimi,
Title:Manager
AUTHORITY:
DOWNTOWN DEVELOPMENT AUTHORITY OF AUGUSTA-RICHMOND COUNTY,
a Georgia corporate body
By:
Name: 7 t :. • t _
Title: 04114t(Ltutit4.1
Attest:
By:
Authority Secretary
Appro ed as to legal form and sufficiency:
By: ��',�j"!'''
Authority orney
04349141.1 32
EXHIBIT"A"
Description of the Property
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04349141.1 A-1
EXHIBIT"B"
Intergovernmental Agreement
043491413 B-1
J,
•
REMIUMENagraulgAgazwea
FORTBE SSALt,.MAHCIN°ANESEDEVIDDIDplffir
Qp QUASH CITY OWNED PVOr1 EWUER
The Mt
leetalAgeepatept(the"Agrtipmai"otifie"Conveyams10A")10madeend
entered into thio Wildly dry of .2016 by and between the Augusta-
Richmond County Consolidated Clot' a political subdivirion of the State of Georgia,
relied to as"City')end the Dovvmtoutn Development AuthoritsyofAuguete-Riciatond
County,Georgia(hereinafter referred to as"DDA").
WITNESSLTE:
WHEREAS,the City is a political aubdivteton of the State of Georgia and the DDA is a
public body tomato and politloamted pursuant to the provisions of O.C.G.A.j 3642.1,et seq.,
• and
WHEREAS,pursuant to Article D(,Sectlea IR,Pmgtaph I ado CosadihrtlonafUrestem
Georgia,the City and DOA are authorized to enter into Intergovernmental Ag eonatts for periods
not exceeding fitly(SO)years in connection with*.activities which these entities ere authorised to
subdatake;
WHEREAS,pursuant to Mile DC,Section VI,Paagrapb W oftheConedtution ofthe Stele
of Georgia,ire DDA is authorized to limber activities to promote publicpwpmee to develop trade,
commerce,industry,and ernploymem opportunities within the City of Augusta;
WHEREAS, the DDA is authorized pursuant to O.C.O.A., *36.424(a) (g)to make
application directly or indirectly to any mrndcipai government or agency or to any other source,
04349141.1 2
whether publloorprivate,fat loess,gnats,guarantees,orother financial assistance infinthaaceof
the DDA's public purposes and to aooapt and use the same upon web tans and conditions as are
prescribed by such municipal government or agency or other mauve;
WHEREAS,the Cltyowns and controls theme!property and iroprovemenis&awn batted
et 51!Reynolds Skeet Augusta,Osorgia 30401,Auygusta•Riobrnond County to pared 0472003000
(the°Property");and,
WHEREAS,the Property is currently undanrotilized and has the poteniW to become a
destination for the City with vitality,and a sense of place and community;end
WHEREAS,the City desires the emotion of a master plan(the'Master Plan')for the
redevelopment of the Area in a manner that will spur additional development
opportunities and create jobs in the Chy;and,
WHEREAS,the City wishes to enter into en bgergovenunental Agreement with the DDA to
provide for the development of*strategy for the redcveloptnadaed revitalisationoftheProperty,so
as to enhance a the downtown district of the City,to promote public purposes,and to develop trade„
oonsmaoo,industry and employment opportunities in the City,and,
WHEREAS,the DDA agrees to manage end develop a strategy for the revitalization and
redevelopment of Property,subject to the approval of both the DDA and the City;and
NOW THEREFORE,in eeaideetiontithe mutual"anises,coverage and undertaking set
tooth herein,and detailed in the aforesaid recita*end for other prod and valuable conaideaetion,the
receipt and sufficiency of which an hereby acknowledged by thepalies,the City and the DDA do
agree as follows:
-2-
rwop.aswewnAoswia sssre,eoe
04344141.1 3
•. r,
The City shall retain all title and interest in the Property and!such time as this aareemant is
modified to provide fbr the sale,less or transfix of the all or some pardon of the Property to the
DDA or athird parry p sua t to the Moret Plan.
2.
The PDA,in conjunction with one or more private developers,shall use its best practices to
mange and develop a Master Plan for the revitalisation and redevelopment of the Properly,to
enhance the downtown district of the City,to promote public purposes,and to develop trade,
coniaresee,may and anploymad opperhaddes in the City.
3.
The DDA shall use its best practices to prepare and submit to the City for review and
approval such Master Plan for the Property within twelve months
4.
The DDA shall review and approve for submission to the City,for the City's review and
approval,any and all development plans for the Property,
5.
Both the City and the DDA agree to consider the use of such tools as are available to them
to assist in funding public inihshvct ue or public improvement necessary for the
development of the Area or any(aiding saps required for the development pursuant to the
Master Plan,as they may determine to enhance the downtown district of the City,and/or promote
public purposes;and/or develop trade.commerce,industry and employment opportunities in the
City.
-3-
a+.es.«sswwArmee OW 5440.es
04349141.1 4
6.
The DDA is hereby expressly auttorired to enter into conga Prelbnkgry Development
Agreements with a developer or developers consistent with this Agee hent end subject to the
approval of the City.
7.
Either patty hereto may terminate this agreement with thirty(30)days'melee to the
other party.
IN WITH>:,:WHEREOF,the parties hereto have teased this Agreement to be executed in
three ooarderperts each lobe considered as en original by their audiwriaed representative,on the day
end date hereinabove written. -.„.. .
F. ;
;(r+Yryy+t. d
A(GUST - ''id• c -.1.114114r'"
c ," -;,111V11,. li*", , . i
WN DEVELOPMENT A ORITY
GEORGIA
1 . "PIh
By: '1 - 7 •
Ito C heimae
-4-
wowas oma Nim 41 54.11
04349141,1 5
EXHIBIT"C"
Preliminary Development Agreement
04949141.1 C-1
ASSIGNMENT OF PRELIMINARY DEVELOPMENT AGREEMENT
THIS ASSIGNMENT OF PRELIMINARY DEVELOPMENT AGREEMENT (this
"Assignment") is made as of CBI 5 , 2018 ("Effective Date") between BLOC Global
Development Group,LLC and Retail Specialists, LLC, (collectively known as "Assignor"),
and Augusta Developers,LLC ("Assignee"),an Alabama Limited Liability Company.
Statement of Purpose
A. Pursuant to the Preliminary Development Agreement dated August 18, 2016,
(attached as"Exhibit A"),Assignor entered into a Preliminary Development Agreement with the
Downtown Development Authority of Augusta-Richmond County("Authority").
B. Assignor desires to assign the Preliminary Development Agreement to a related
entity established for the purpose of fulfilling the obligations of the Assignor under such
agreement.
C. Such assignment requires the Authority consent pursuant to paragraph 9 of the
Preliminary Development Agreement,such consent to not be unreasonably withheld.
In consideration of the premises contained in this Assignment and other good and
valuable consideration,the receipt and sufficiency of which are acknowledged,the parties agree
as follows:
1. Capitalized Terms. Unless otherwise specified, all capitalized terms in_this
Amendment shall have the meanings ascribed to them in the Preliminary Development
Agreement.
2. Assignment and Assumption. Assignor does hereby assign, transfer and convey
unto Assignee the Preliminary Development Agreement. Assignee agrees to assume all
obligations and responsibilities, as Developer, under the Preliminary Development Agreement
commencing on the effective date and Assignor is relieved of any obligations under the
Preliminary Development Agreement.
3. Terms Not Changed. Unless expressly amended by this Assignment, all of the
terms and conditions of the Preliminary Development Agreement remain in full force and effect,
and the Preliminary Development Agreement shall be fully binding on the Authority, Assignor,
and Assignee.
4. Binding Agreement. This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignee and their respective heirs, successors and assigns.
5. Counterparts. This Assignment may be executed in multiple counterparts, with
all counterparts taken together deemed to be one(1)original document.
6. Governing Law. This Amendment shall be governed, construed and enforced in
accordance with the laws of the State of Georgia.
IN WITNESS'WHEREOF, this Assignment is agreed to as of the date first above
written by the undersigned parties.
ASSIGNOR:
l
4
_______4e,..E.....
BLOC obal Development Group,LLC
By:_ •.
Retail Spec'alists,LLC.
By:____ 6...:.a. f
Iv
ASSIG , : • U US • w • OPERS,LLC
' ' l
By:_ Ait....l , L
Its: i
a
111 I Ile
Its:
AUTHORITY: DOWNTOWN DEVELOPMENT AUTHORITY OF AUGUSTA-RICHMOND
COUNTY,a Georgia corporate body politic
f`
By: s
Name: 50 .41cIL : .
Title: CAP-4441.-1
Attest:
By: 4'1- 0
Mk
Authority Secretary
Approved as to legal form and sufficiency:
1
By: ,�; . i. :,i
f.lthority Attorney `
PRELIMINARY DEVELOPMENT AGREEMENT
THIS PRELIMINARY DEVELOPMENT AGREEMENT (the"Agreement") is Horde and
entered into as of this 1 ei day of Sf*",2016(the"Effective Date")by and between
DOWNTOWN DEVELOPMENT A ORITY OF AUGIISTA•RICHMOND COUNTY,a
corporate body politic,whose address is 936 Broad Street,Suite 107 Augusts,GA 30901 (the
"Authority")and$to be formed entity(NEWCo)which will be controlled by a joint venture
composed of BLOC Global Devdopment Croup,LLC,an Delaware corporation,whose address
is 505 North 20°' Street Suite 900, Birmingham,AL 35203 and Retail Specialists,LLC an
Alabama corporation,whose address is 120 18°Street South,Suite 201,Birminglwn,AL 35233
("Developer").
RECITALS
1, WHEREAS,the Authority has entered into an Intergovernmental Agreement with
the Augusta.Richmond County Consolidated Government(the"City")for the!inure acquisition
of certain properly within its downtown development district(said property being hereinafter
reik red to as the"Property"and more particularly identified in Exhibit"A"attached hereto);and,
2. WHEREAS,the Authority has been tasked by the City with development of a
Master Development Plan for the Property and the Authority is desirous of developing said
Property pursuant to a Mester Development Plan that furthers the economic interest of downtown
Augusta and the City's residents;and,
3, WHEREAS,Developer has extensive experience in the development of downtown
properties,including the funding and structuring of such developments;and,
4. WHEREAS,Developer has proposed to provide to the Authority a development
plan for the Property consistent with the goals and objectives of the Authority and its Master
Development Plan;and,
5. WHEREAS,the Authority and Developer wish to enter into this Agreement in
order to evidence and confine various understandings between them with respect to certain rights
and obligations with respect to the process of creating and approving an acceptable development
Plan'
NOW, THEREFORE, in consideration of the mutual covenants and agreements
Contained herein and other good and valuable consideration,the receipt end sufficiency of which
is hereby acknowledged by the pedes,the Authority and Developer agree as follows:
1. Boit*. The recitals set forth above are true and correct,and incorporated into
this Agreement as if fully set forth herein.
04349141.1 2
2. gam. The purpose of this Agreement is to set forth the understanding of
the parries with respect to curtain rights and obligations ht connection with the negotiation of the
terms and conditions for the redevelopment of the Property(the"Project")by Developer. The
parties hereby recognize that one of the objectives ofthe redevelopment ofthe Property is to ensure
that the fbcHtes not only meet requirements of both the Authority end Developer,but also that
they are designed to optimize the long-term success of the Property. This Agreement represents
the mutual intent of the parties to negotiate hi good fifth to approve a Development Plan(as defined
in Section 4 below)end complete and execute the necessary agreements for the development of the
Project all within the Term(as defined in Section 6 below).
3. Selection of Developer as Develoeer.The Authority acknowledges and agrees that
(a)Developer was selected by the Authority as the preferred developer of the Project and(10 the
Authority has the authority to negotiate the terms and conditions for the development of the Project
with Developer generally in accordance with the development provisions of the City Code of the
City. In consideration of the perfas ante by Developer of its obligations hereunder,the Authority
agrees to not formally or informally, solicit proposals or respond to unsolicited proposals or
inquiries(torn any other party or enter into any outer commitments,written or oras,with any other
party hr connection with or related to the Project during the Term ofthis Agreement.
4. Devolonment Piga. Developer will prepare a development plan for the Project that
will include the following: Within one hundred eighty (180) days of the Effective Date a
conceptual design for the redevelopment of the Property shall be prepared by Developer,including
the identification ofany additional properties required to achieve the development Developer shall
also provide a preliminary development budget,financing package and pro forme including,if
practicable,a business and operating plan for the Project, all of which shall be prepared 1
accordance with generally accepted industry standards for a commercial development of the
proposed size and nature contemplated by Developer. The foregoing is collectively hereinafter
referred to es the"Development Plan." Developer shall Submit the Development Plan to the
Authority for its approval. Such approval shall not be unreasonably withheld, delayed or
conditioned. The Authority shall either provide their written approval or disapproval(specifying
the basis for disapproval)and/or comments to the Development Plan. If the Authority disapproves
or provides comments to the Development Plan,the patties shall continue to coordinate aid
cooperate with each other to obtain Authority approval of a Development Plan that fulfills the
requirements of the parties. If the parties cannot agree upon a Development Plan then either the
Authority or Developer may,upon written notice to the other,terminate this Agreement,in which
event the parties shall have no anther obligation to one another under this Agreement except as
otherwise expressly set forth herein.Developer shall mark all copies of the Development Plan
"Confidential—Proprietary Information", including but not limited to all drawings,plans,pro
forma, financing,lease or other legal structures pertaining to the proposed development. The
Authority agrees that all such material shall be considered the work product of Developer and the
Authority shall not copy,distribute,disseminate or otherwise share such materials with any other
party,except es required by law,without the expressed written consent of Developer
3. Valuation of the Property. Within sixty(60) deya of the Effective Date the
Authority shall notify the Developer as to the valuation of the property,The valuation shall be
mutually agreeable to the parties and will be used as the basis of the negotiations for the(around
Lease/Purchase Negotiations.In no case shall the valuation exceed the value established by a
04349141.1 3
mutually agreeable third patty certified commercial real estate appraiser.The parties may mutually
agree on a valuation without the need to engage a third pasty appraiser.
6. J eaae/Pransfer Negotiation. Upon approval of the Development Plan by the
Authority,the Authority will negotiate with the City to acquire title to the Property owned by the
City,and the Authority and Developer will enter into good faith negotiations for the sale or lease
of the Project property as well as such additional property as is necessary to complete the Project
consistent with the approved Development Plan and all applicable laws including the development
provisions of the City Code of the City. Once the specific overall site to be sold or leased is
determined,the Authority agrees to initiate and continue to completion any additional disposition
process(es)as may be required by applicable laws including any disposition of any property from
the City to the Authority if contemplated by the Development Plan. The term of any lease shall
be fora minimum of fifty(50)years for financing and tax credit purposes. Developer shall be
permitted to collateraljzo the lease in connection with any development loan(s).
7. Team of Apreeen set. The term of this Agreement will commence upon the
Effective Date and,unless terminated sooner pursuant to the provisions hereof end on the date
which is twelve(12)months after the Effective Date(the"Term");provided,however,if at such
time the parties are still negotiating hi good faith pursuant to Section 5 above,this Agreement shall
not terminate and the Term shall continue until either(a)such negotiations arc terminated(as
evidenced by written notice from one party to the other that such patty considers the negotiations
terminated)or(b)the parties enter into a lease or other agreement for the development of the
Project.Any written notice of termination shall be delivered to the other party et least forty-five
(45)days prior to the date of termination.
8. No Dilisrence, During the Term,Developer or its authorized agents,personnel,
employees, or independent contractors shall be entitle( to enter the Project site and soy
surrounding properties owned or controlled by the Authority or the City on which the Project is to
be developed for the purpose of making all Inspections and investigations which Developer may
deem necessary,including but not limited to environmental assessments,soil borings,engineering,
environmental,sod zoning studies and availability of utilities and insurance.Within thirty(30)
days of the Effective Date the Authority shall provide all of the information that it or the City of
Augusta has regarding the property,including environmental issues,covenants,easements,etc.
9. Assignment, The Authority acknowledges that the development of this Project will
entail multiple uses and may require the participation of other developers or development entities
to achieve the kit development plan. Developer,upon written notice to the Authority and with
Authority consent,which consent shall not be unreasonably withheld,may assign this Agreement
and all If its rights and obligations hereunder to an entity which Developer may create,it being
understood and agreed that Developer may create a separate entity owned and controlled by the
Developer for development purposes;provided however,that any such assignee shall assume in
writing all liabilities and obligations of Developer hereunder.
10. Notices.Notices hereunder shall be in witting and either hand delivered or sent by
recognized overnight courier or certified mail, return receipt requested to the parties at the
04344141.1 4
following addresses:
If to Developer:
BLOC Global Development Grasp,LLC
SOS North 20"Street Suite 900
Birmingham,AL 35203
Attn:J.Michael Carpenter
And
Retail Specialist.,LL.C.
12018'Street South,Sulk 201
Birmingham,AL 35233
Attn:Robed Jolly
If to the Authority:
Downtown Development Authority of Augusta-Richmond County
936 Broad Street,Suite 107
Augusta,Georgia 30901
Attention: Margaret Woodard
With a copy to(which shall not constitute notice):
Warlick Mill Stebbins&Murray LLP
209 Seventh St.3"a Floor
PO Box 1495
Augusta,Georgia 30903.1495
Mtn: Willhm Byrd Wadick
Notices may also be sent by facsimile or electronic means(az,email)provided such is
fbllowal up with a hard copy sent in the manna set forth above. Notice will be effective upon
delivery or refusal of delivery of notice. The addressees and addresses for notice may be changed
by giving notice, Until written notice of a change in address is delivered,the last addressee and
addhess stated in this Agreement will continue in effect for all purposes.
11, Miacdlaneoua.
11.1 Readings. The section and paragraph headings in this Agreement are
inserted only as a matter of convenience and for reference,and in no way define,limit or describe
the scope or Intent of any provision hereof.
112 jurisdiction. This Agreement shall be interpreted end construed in
accordance with and governed by.the laws of the State of Georgia.Venue for litigation concerning
this Agreement shall be in Richmond County,Georgia.
04349141.1 5
11.3 $¢Yprattca.Should any clause or provision of this Agreement be determined
to be illegal,invalid or unenforceable under any present or future law by final judgment of a court
of competent jurisdiction,the remainder of this Agreement will not be affected thereby. It is the
intention of the parties that if any such provision is held to be illegal,invalid or unenforceable,
there will be added in lieu thereof a legal,valid and enforceable provision that is as similar as
possible in tams to the illegal,invalid or tamenfbroeable provision,which is agreed to by both
parties.
11.4 jod-eosndent Contractor/Relationship of Parties. Nothing contained herein
shall be doomed or construed as creating the relationship of principal and agent,partners,joint
venturers,or any other similar such relationship between the patties hereto.
11.5 Third Party Beneficiaries. Neither the Authority nor Developer intend to
that
directly are
or thirdpaysubstantially benefia t
this party by rgent��'Therefbre,the no third party shall be be entics tl d to
there erre no third party
assert a claim against either of them based upon this Agroentett.
11.6 Tiegotieted Agreement. Both patties have substantially contributed to the
drafting and negotiation of this Agreement and this Agreement shall not,solely as a matter of
judicial construction,be construed more severely against one of the parties than any other.The
parties hereto acknowledge that they have thoroughly read this Agreement,including all exhibits
and attachments hereto,and hevesought and received whatever competent advice and comet was
necessary for them to form a full and complete understanding of all rights end obligations herein.
11.7 mss. No modification,amendment,or alteration in the terms or
in a written
prepared
with the same or similaritions contained arformality as thiin shall be iss�Agr�nentsex�uted by the Authority Developer.
11.8 prior Agreements. This document incorporates and includes all prior
negotiations,correspondence.conversations, agreements,and undest ndingtt applicable to the
matters contained herein and the parties agree that there are no commitments,agreements or
underatandingg concerning the subject matter of this Agreement that are not contained in this
document.
11.9 Successors arg,Aasigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto,their successors and assigns.
11.10 poticeJRemulatfy&r a. Authority cannot,and hereby specifically does
not,waive or relinquish any of the City's regulatory approval or enforcement rights as they may
relate to regulations of genes applicability which may govern the subject matter of this
Agreement. Nothing in this Agreement shall create or be deemed to create an affirmative duty of
Authority to abrogate the City's sovereign right to exercise its police powers and governmental
powers by approving or disapproving or taking any other action in accordance with its zoning and
land use codes, administrative codes, ordinances, rules and regulations, federal laws and
regulations, regulations.
or issuance of a developmentorder or zoning by contract or both.herein hall be considered the
'approve!
04349141.1 6
11.11 Attorneys'Fees. if any party commences an action against the other patty
to interpret or enforce any of the tams of this Agreement oras the result ofa breach by the other
party of any terms hereof,the non-prevailing party shall pay to the prevailing party all reasonable
attorneys'fees,costs And expenses insured in connection with the prosecution or defense of such
action,including those incurred in any appellate proceedbga,and whether or not the action is
prosecuted to a final judgment and also including any attorneys'fees,costs and expenses incurred
in connection with the enforcement of this Attorneys'Fees provision.
11.12 Waiver. No express or implied consent or waiver by a party to or of any
breach or default by the other patty in theperlbrmance by such other party of its obligations under
this Agreement will be deemed or contented to be a consent or waiver to or of sty other brach or
default in the performance by such other party of the same or any other obligations of such other
party hereunder. Failure by a party to complain of any act or failure to act of the other party or to
declare the other party in default,irrespective ofhow long such failure continues will not constitute
a waiver by such party of its rights hereunder. The giving of consent by a party in anyone instance
will not limit or waive the necessity to obtain such party's consent in any future butane.
11.13 Authority to Execute. Authority and Developer each warrant and represent
to the other that the individuals signing this Agreement on behalf of Authority and DEVELOPER,
respectively,have full power and authority to execute and deliver the Agreement and to bind the
respective parties hereto.
11.14 Remedies Cumulative. No power or remedy of either party provided in this
Agreement is intended to be exclusive of any other right,power,or remedy except as may be
otherwise expressly set forth herein;each right,power and remedy is cumulative,concurrent and
in addition to any other right,power or remedy of either party now or hereafter existing at law or
in equity. Either patty may pursue its rights,powers and remedies separately,successively or
together against the other party. Failure by either party to exercise any right,power or remedy will
not be construed as a waiver or release of such right,power or remedy.
11.15 Press Relssee an Pyblle Announgemedts. Neither party shall issue any
press release or make any public announcement misting to the subject matter of this Agreement
without the prior written approval of the other Party;provided,however,that any party may make
any public disclosure it believes in good faith is required by applicable law(in which case the
disclosing party shall use its reasonable best efforts to advise the other party prior to malting the
disclosure).
[Signatures are on the following page]
04349141.1 7
IN WITNESS WHEREOF,this Development Agreement is agreed to as of the date first
above written by the undersigned mulles.
DEVELOPER:
BLOC 0 obal Development Group,LLC
By: ( '
I.Mi Carpader
Retail Special LC.
Roy holly
AUTHORITY:
DOWNTOWN DEVELOPMENT AUTHORITY OF AUGUSTA-RICHMOND COUNTY,
a Georgia corporate body politic
Br. 74:?:X<D4C
Name: 8P vis4#f.- is. s tart
Title: CFlftr testi(
Attest:
B ./11
c� 7 cc)o,0h-'01
a Director
Approved as to legal form and sufficiency:
BY Aur '�
Aut ty Attorney
04349141.1 8
ASSIGNMENT OF PRELIMINARY DEVELOPMENT AGREEMENT
THIS ASSIGNMENT OF PRELIMINARY DEVELOPMENT AGREEMENT (this
"Assignment") is made as of April 30, 2018 ("Effective Date") between BLOC Global
Development Group,LLC and Retail Specialists,LLC, (collectively known as "Assignor"),
and Augusta Developers,LLC ("Assignee")
Statement of Purpose
A. Pursuant to the Preliminary Development Agreement dated August 18, 2016,
(attached as"Exhibit A"),Assignor entered into a Preliminary Development Agreement with the
Downtown Development Authority of Augusta-Richmond County("Authority")
B. Assignor desires to assign the Preliminary Development Agreement to a related
entity established for the purpose of fulfilling the obligations of the Assignor under such
agreement.
C. Such assignment requires the Authority consent pursuant to paragraph 9, such
consent to not be unreasonably withheld
In consideration of the premises contained in this Assignment and other good and
valuable consideration,the receipt and sufficiency of which are acknowledged,the parties agree
as follows:
1. Capitalized Terms. Unless otherwise specified, all capitalized terms in this Amendment
shall have the meanings ascribed to them in the Lease.
2. Assignment and Assumption. Assignor does hereby assign, transfer and convey unto
Assignee the Preliminary Development Agreement. Assignee agrees to assume all obligations and
responsibilities, as Developer, under the Preliminary Development Agreement commencing on the date
hereof and Assignor is relieved of any obligations under the lease.
3. Terms Not Changed. Unless expressly amended by this Assignment,all of the terms and
conditions of the Preliminary Development Agreement remain in full force and effect, and the
Preliminary Development Agreement shall be fully binding on the Authority,Assignor,and Assignee.
4. Binding Agreement. This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignee and their respective heirs,successors and assigns.
5. Counterparts. This Assignment may be executed in multiple counterparts, with all
counterparts taken together deemed to be one(1)original document.
6. Governing Law. This Amendment shall be governed, construed and enforced in
accordance with the laws of the State of Georgia.
04349141.1 9
IN WITNESS WHEREOF, this Assignment is agreed to as of the date first above
written by the undersigned parties.
DEVELOPER:
BLOC Global Development Group,LLC
By:
Retail Specialists,LLC.
By:
AUTHORITY:
DOWNTOWN DEVELOPMENT AUTHORITY OF AUGUSTA-RICHMOND COUNTY,
a Georgia corporate body politic
By:
Name:
Title:
Attest:
By:
Authority Secretary,
Approved as to legal form and sufficiency:
By:
Authority Attorney
04349141.1 10
EXHIBIT"D"
Project Development Plan
04349141.1 D.1
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04349141.1
EXHIBIT"E"
Grant Agreement
THE DOWNTOWN DEVELOPMENT AUTHORITY OF AUGUSTA-RICHMOND
COUNTY
(a public corporation duly created and
existing under the laws of
the State of Georgia)
as Grantor
and
AUGUSTA DEVELOPERS LLC
(an Alabama limited liability company)
PROJECT GRANT AGREEMENT
Dated 2018
04349141,1 E-1
PROJECT GRANT AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Project Grant Agreement
and is only for convenience of reference.)
Page
ARTICLE I DEFINITIONS;CONSTRUCTION
i
1
Section 1.1. Definitions 6
Section 1.2. Other Definitional Terms
ARTICLE II THE GRANT TRANSACTION
6
Section 2.1. Grant 66
Section 2.2. [Reserved]
Section 2.3. Survey 67
6
Section 2.4. Title Insurance Policy 7
Section 2.5. Insurance Policies
Section 2.6. Performance and Payment Bonds 878
Section 2.7. Construction 9
Section 2.8. Inspection 109
{ Section 2.9. Completion
Section 2.10. t of Construction Contract and Remedies Against
Gen ral rcemContractor and Subcontractors and Their Sureties and
Against Manufacturers 1140
Section 2.11. Governmental Approvals
11
ARTICLE III REPRESENTATIONS AND WARRANTIES.
1211
Section 3.1. Representations and Warranties of Authority 12,4
Section 3.2. Representations and Warranties of Developer 114
ARTICLE IV COVENANTS AND AGREEMENTS
14
Section 4.1, Use of Grant 1414
Section 4,2, Compliance with Terms 14
Section 4.3. Diligent and Timely Construction 1514
Section 4.4. Subcontractors and Suppliers 1544
Section 4.5. Change Orders 1544
Section 4.6. Compliance with Governmental Requirements 1514
Section 4.7. Correction of Defects 15
Section 4.8. Title to Land 15
Section 4.9. Title to Personal Property 1615
Section 4.10. Insufficiency of Funds
(i)
99253I13W 9
Page
Section 4.11. Insurance 1444
Section 4.12. Pay Impositions 1644
Section 4.13. Pay Fees and Expenses 1643
Section 4.14. Further Assurances 1644
Section 4.15. Pay Bills 16
Section 4.16. Maintain Records 16
Section 4.17. Improvements Inspection. 16
Section 4.18. No Modification 1744
Section 4.19. Indemnity 1744
Section 4.20. Restrictive Covenants 17
Section 4.21. No Conveyance or Encumbrance 17
Section 4.22. Notification of Default 17
Section 4,23, Licenses,Permits 17
Section 4.24. Hotel Standard Error!Bookmark not defined.
ARTICLE V DISBURSEMENTS ... ,.. 184.7
Section 5.1. In General 114-7
Section 5.2. Costs of Construction 1847
Section 5.3. Representations and Warranties for Each Disbursement of Grant 1948
Section 5.4. Request for Disbursement 2049
Section 5.5. Request for Final Disbursement Zj.A
Section 5,6. Procedure for Disbursements
Section 5.7. Conditions Precedent to First Disbursement.
Section 5.8. Conditions Precedent to All Disbursements 2322
Section 5.9. Conditions Precedent to Final Disbursement 23
Section 5.10. Special Disbursements and Payments 2423
ARTICLE VI INSURANCE;DAMAGE AND DESTRUCTION 2423
Section 6.1. Insurance to be Maintained by the Developer 2423
Section 6.2. Damage and Destruction 2524
ARTICLE VII EVENTS OF DEFAULT ... .„..... 2626
ARTICLE VIII REMEDIES ON DEFAULT 2726
Section 8.1. Generally 2726
Section 8.2. Continuance of Grant 126
Section 8.3. Remedies Cumulative 226
ARTICLE IX MISCELLANEOUS 27
Section 9.1. Tenn 27
Section 9.2. Entire Agreement 2827
Section 9.3. Applicable Law 2i27
Section 9.3. Execution in Counterparts 2127
Section 9.4. Time is of the Essence 2.27
(ii)
99733113W4
Eue
Section 9.5, Waiver U.24
Section 9.6. The Authority's Consent or Approval 2827
Section 9.7. Assignment and Binding Effect 2827
Section 9.8. No Third Party Beneficiaries ap;
Section 9.9. No Agency nag
Section 9.10. No Partnership or Joint Venture 222g
Section 9.11. Survival 2228
Section 9.12. Severability 2928
Section 9.13. Captions 2928
Section 9,14. Notices 2228
Section 9.15. Limited Obligations 3029
SIGNATURES AND SEALS 29
EXHIBIT A—DESCRIPTION OF LAND A-1
EXHIBIT B COST
BREAKDOWN
(iii)
99253111W-3
PROJECT GRANT AGREEMENT
THIS PROJECT GRANT AGREEMENT (this "Agreement") is made and entered
into on , 2018, by and between and the DOWNTOWN DEVELOPMENT AUTHORITY
OF AUGUSTA RICHMOND COUNTY (the "Authority"), a Georgia public corporation, and
AUGUSTA DEVELOPERS, LLC an Alabama limited liability company (collectively the
"Developer").
WITNESSETH:
WHEREAS, the Authority has executed a Purchase Sale and Development Agreement
with Developer for the tract or parcel of land more particularly described on Exhibit A. attached
hereto and incorporated herein by reference(hereinafter called the"Land");and
WHEREAS, the Developer proposes to construct on the Land certain improvements
consisting in Phase I of approximately 16,000 square foot Historic Depot in a manner that
qualifies for state and federal historic rehabilitation tax credits and approximately 140 residential
units,approximately 5,000 square feet of retail space and a structured parking facility containing
approximately 490 spaces and any and all other facilities, buildings, improvements, fixtures,
equipment, and personal property used or usable in connection therewith, and all related land
improvements, buildings, structures, fixtures, equipment, and personalty appurtenant or
convenient thereto(hereinafter called the"Improvements");and
WHEREAS, the Authority is willing to make the grant provided for herein to the
Developer upon the terms and conditions herein set forth, to pay a portion of the costs of
constructing the Improvements;and
WHEREAS, the Authority and the Developer are entering into this Agreement to set
forth the terms and conditions of such grant and the disbursements thereof to the Developer;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements herein contained,the Authority and the Developer do hereby agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section LI. Definitions. For purposes of this Agreement, the following terms shall
have the indicated meanings as set forth below:
"Architect"means such firm as designated by the Developer.
"Architectural Contract" means the design contract between the Developer and the
Architect, as approved by the Authority, providing for the design of the Improvements, as the
same may be modified or supplemented from time to time with the prior written consent of the
Authority.
992l31191V-9
"Authority" shall have the meaning given such term in the preamble to this Agreement
and shall include such person's successors and assigns.
"Authorized Developer Representative" moans the person(s) at the time designated to
act on behalf of the Developer by written certificate furnished to the Authority, containing the
specimen signature of such person and signed on behalf of the Developer by the Manager of the
Developer. Such certificate or any subsequent or supplemental certificate so executed may
designate an alternate or alternates.
"Completion Date"means the date of Completion of Construction,which shall be on or
before
"Completion of Construction" shall have the meaning given such term in Section 2.9 of
this Agreement.
"Community Greenspace" shall mean that open area, as depicted on the Plans and
Specifications,between the historic railroad depot and the parking deck and as more particularly
described in the Survey.
"Construction Contract" means the construction contract between the Developer and
the General Contractor, as approved by the Authority, providing for the construction of the
Improvements,as the same may be modified or supplemented from time to time with the written
consent of the Authority.
"Construction Lender"means the holder,if any,of the promissory note evidencing the
Construction Loan.
• "Construction Loan" means the loan in the amount of$ , which was
made by to the Developer to finance a portion of the Costs of Construction.
"Cost Breakdown"means the cost breakdown for construction of the Improvements and
the Developer's Funding Source for each line item in such cost breakdown,as well as the items
to be funded from the Grant, submitted by the Developer and approved by the Authority and
attached hereto as Exhibit B, as the same may be modified from time to time with the written
consent of the Authority.
"Costs of Construction" shall have the meaning given such term in Section 5.2 of this
Agreement.
"Default" means any condition or event that,with notice or lapse of time or both,would
constitute an Event of Default.
"Developer" shall have the meaning given such term in the preamble to this Agreement
and shall include such entity's successors and assigns,
"Developer Equity" means the equity to be contributed by the Developer in such
amounts as shown on Exhibit B.
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992531 1 AV-.3
2-99253113\V3
"Developer's Funding Sources" means the Grant, the Developer Equity to be
contributed by the Developer,and the Construction Loan.
"Draw Request" shall have the meaning given such term in Section 5.4 of this
Agreement.
"Environmental Laws" means any and all federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements, or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions, and discharges to
waste or public systems.
"Event of Default"shall have the meaning provided in Article VII hereof.
"Force Majeure"means any of the following events or circumstances,but only(i)if and
to the extent such event or circumstance is beyond the reasonable control of the Developer;(ii)if
and to the extent the Developer shall have taken all reasonable precaution to prevent delays by
reason of such event or circumstance if such event or circumstance was actually known in
advance to the Developer; (iii) if and to the extent such event or circumstance is not caused by
the fault or negligence of the Developer or any of its employees, agents,or contractors; and(iv)
if and to the extent the Developer shall have taken all reasonable precautions to prevent further
delays awing to such event or circumstance: (a)strikes, work stoppages, lockouts, or picketing
(legal or illegal); (b) acts of God, including, without limitation, tornadoes, hurricanes, floods,
sinkholes, landslides, earthquakes, epidemics, quarantine, and pestilence; (c)adverse weather
conditions not reasonably foreseeable; (d) fire and other casualties; (e)condemnation or other
exercise of the power of eminent domain; (f) acts of a public enemy, acts of war, terrorism,
effects of nuclear radiation, blockades, insurrections, riots, civil disturbances, or national or
international calamities; and (g) unavailability of materials. Force Majeure shall in any event
exclude: (A) lack of sufficient funds or any other financial difficulty of the Developer and (B)
adverse weather(1) occurring at night or on any day that is not a business day, (2)that shall not
result in a direct and actual delay in the construction of the Improvements at the time of such
inclement weather, and (3)that was not abnormal or that should have been reasonably anticipated
given the climate and season,
"General Contractor"means that contractor selected by the Developer.
"Governmental Authority" means (a) the government of (i) the United States of
America or any state or other political subdivision thereof or (ii) any jurisdiction in which the
Developer conducts all or any part of its business, or which asserts jurisdiction over any
properties of the Developer or (b) any entity exercising executive, legislative, judicial,
regulatory,or administrative functions of,or pertaining to,any such government.
"Governmental Requirement" means any constitution, law, statute, code, ordinance,
resolution, rule, regulation, requirement, directive,judgment, writ, injunction, order, decree, or
demand of any Governmental Authority.
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9,2s!lIf1V4
"Grant"means the grant made by the Authority to the Developer pursuant to Section 2.1
of this Agreement from the net proceeds of those "Downtown Development Authority of the
City of Augusta Revenue Bonds(Riverfront Project),Series 2018"(the"Series 2018 Bonds").
"Hazardous Materials" means any and all pollutants,toxic or hazardous wastes,or any
other substances that might pose a hazard to health or safety, the removal of which may be
required or the generation, manufacture, refining, production, processing, treatment, storage,
handling,transportation,transfer,use,disposal, release,discharge,spillage,seepage,or filtration
of which is or shall be restricted, prohibited, or penalized by any applicable law (including,
without limitation,asbestos,urea formaldehyde foam insulation,and polychlorinated biphenyls).
"Impositions" means all governmental charges and taxes (including all ad valorem,
sales, use, intangible,transaction,privilege, or license or similar taxes), assessments (including
all assessments for public improvements or benefits), water and sewer charges, excises, levies,
fees (including license, permit, inspection, authorization, and similar es), and
rdinaryother
governmental charges, in each case whether general or special, ordinary
or foreseen or unforeseen,of every character in respect of the Land or the Improvements(including
all interest and penalties thereon),which at any time may be assessed or imposed or in respect
of or be a lien upon the Land or the Improvements.
"Improvements"shall have the meaning given such term in the second recital paragraph
hereof.
"Inspector" shall have the meaning given such term in Section 2.8 of this Agreement.
"Insurance Policies" shall have the meaning given such term in Section 2.5 of this
Agreement.
"Insurance Requirements" means all terms of any insurance policy required to be
obtained under this Agreement covering or applicable to the Improvements or any part thereof,
all requirements of the issuer of any such policy, and all orders, rules, regulations, and other
requirements of the national board of fire underwriters (or any other body exercising similar
functions) applicable to or affecting the Improvements or any part thereof or any use of the
Improvements or any part thereof.
"Land"shall have the meaning given such term in the first recital paragraph hereof.
"Lien" means any interest in the Land securing an obligation owed to, or a claim by, a
person other than the Developer,whether such interest is based on the common law, statute,or
contract, and including,but not limited to,the security interest,security title,or lien arising from
a security agreement, mortgage, deed of trust, security deed, lease in the nature of a conditional
sale or title retention agreement, encumbrance, charge, pledge, conditional sale,or trust receipt
or a lease, consignment, or bailment for security purposes. The term "Lien" shall include
reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases, and other title exceptions and encumbrances affecting the Land. For the
purpose of this Agreement,the Developer shall be deemed to be the owner of any property
has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to
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mamma a
which title to such property has been retained by or vested in some other person for security
purposes.
"Material Adverse Effect" means a material adverse effect upon, or a material adverse
change in,any of the(i)legality,validity,binding effect,or enforceability of this Agreement;(ii)
ability of the Developer to perform its obligations under this Agreement; or (iii) ability of the
Developer to complete the Improvements by the Completion Date in accordance with the Plans
and Specifications and all Governmental Requirements,
"Material Deviation and Material Departure"means any deviation or departure from
the approved plans and budget that differ from the Plans and Specifications or budget by more
than five (5%) including square footage, unit counts, line items or schedule of values for each
Phase of the Project.
"Net Proceeds"means,when used with respect to any insurance or condemnation award,
the gross proceeds from the insurance or condemnation award with respect to which that term is
used remaining after payment of all expenses(including attorney's fees,adjuster's fees,and any
other expenses)incurred in the collection of such gross proceeds.
"Permitted Exceptions"means (A)current city, state,and county ad valorem taxes not
yet due and payable; (B) all easements, restrictions, reservations, rights-of-way, and other
matters of record serving the Land; and (C) any matters revealed by the title commitment or
survey.
"Person"means an individual, a corporation,a partnership, a limited liability company,
an association,a joint stock company, a joint venture,a trust, an unincorporated organization,a
governmental unit or an agency, a political subdivision or instrumentality thereof, or any other
group or organization of individuals.
"Plans and Specifications" means the detailed plans and specifications for the
construction of the Improvements prepared by the Architect or by architects and engineers
acceptable to the Architect and approved by the Architect, as amended or supplemented from
time to time by the Developer with the prior written consent of the Authority,a copy of which is
or will be on file with the Authority.
"Request for Disbursement" shall have the meaning given such term in Section 5.4 of
this Agreement.
"Surety Bonds" means separate performance and labor and material payment bonds
issued by a responsible surety bond company qualified to do business in the State of Georgia,
which (1) contains dual obligee riders in favor of the Authority, (2)unconditionally guarantees
performance of the Construction Contract upon any default by the General Contractor
thereunder, including payment by the General Contractor of all amounts due in respect thereof
and the correction of defects developing within one year after substantial completion of
construction under the Construction Contract, (3) has a maximum amount available of at least
100% of the price of the Construction Contract including increases caused by change orders
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s92ssu3v s
(except that the portion available thereunder for the correction of post-completion defects may be
limited to 10% of the price of the Construction Contract), and (4) provides that coverage
thereunder may not be reduced or cancelled except upon thirty days' prior written notice to the
Developer and the Authority,and(5)if cancellable.the surety under any circumstances,provides
for full payment to the Authority prior to any cancellation. The parties agree that the
requirement of a Surety Bond is not required in this project unless required may be waived by
the Authority if not required by the Construction Lender.
"Survey"shall have the meaning given to such term in Section 2.3 of this Agreement.
"Surveyor"shall have the meaning given to such term in Section 2.3 of this Agreement.
"Title Policy"shall have the meaning given such term in Section 2.4 of this Agreement.
"Trust Agreement" means the Trust Agreement, dated the date hereof, between
as Trustee, and the Authority, as Issuer, as the same may be supplemented and
amended from time to time in accordance with the provisions thereof.
"Unysis Parking Easement"means that certain perpetual easement for the exclusive use
of 175 designated contiguous parking spaces within the parking deck, as depicted in the Plans
and Specifications and as more particularly described in the Survey.
Section 1.2. Other Definitional Terms. The words"hereof,""herein,"and"hereunder"
and words of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. Any pronoun used herein shall be
deemed to cover all genders, and all singular terms used herein shall include the plural and vice
versa. Unless otherwise expressly indicated herein,all references herein to a period of time that
runs "from" or "through" a particular date shall be deemed to include such date, and all
references herein to a period of time which runs"to"or"until" a particular date shall be deemed
to exclude such date.
ARTICLE II
THE GRANT TRANSACTION
Section 2.1. Grant. The Authority hereby agrees to grant to the Developer, and the
Developer hereby agrees to accept from the Authority, the sum of$12,125,000.00 for the sole
purpose of paying a portion of the Costs of Construction, in accordance with the terms and
conditions of this Agreement. In order to fund the Grant, the Authority hereby agrees to enter
into the Trust Agreement and to draw funds under the Trust Agreement to make disbursements
of the Grant to or for the account of the Developer pursuant to Article V hereof.
Section 2.2. [Reserved].
Section 2.3. Survey. A survey of the Land, hereinafter called the "Survey," shall be
provided as set forth in that Purchase Sale and Development Agreement between the parties,by a
licensed Civil Engineer or Registered Land Surveyor reasonably satisfactory to the Authority,
hereinafter called the "Surveyor." The Survey shall show the scale, the north direction, the
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99251113W4
beginning point and boundary lines of the Land,the distance to the nearest intersecting street and
the point of reference from which the beginning point is measured, the width of the streets on
which the Land abuts, all recorded easements and rights of way, whether or not visible,
encroachments of any kind thereon, and the location of the 100 year flood plain and all or any
portion of the Land located in an area identified as a"special flood hazard area"by the Federal
Emergency Management Agency. Such survey shall be accompanied by a certification of the
Surveyor in favor of the Developer and Authority. The Developer shall within ten (10) days
after the completion of all foundations for the Improvements furnish to the Authority an updated
revision of the Survey reflecting all foundations and other Improvements then located on the
Land, and upon Completion of Construction the Developer shall furnish to the Authority a final
updated "as built" revision of the Survey showing all Improvements then located on the Land.
Each such revision of the Survey shall show all information required to be shown on the original
Survey.
Section 2.4. Title Insurance Policy. The Developer shall cause a title insurance
company licensed to do business in the State of Georgia and otherwise reasonably satisfactory to
the Authority to issue an ALTA owner's policy of title insurance in the amount of
$ , hereinafter called the "Title Policy," in form and substance reasonably
satisfactory to the Authority, insuring that the Developer has good and marketable fee simple
title to the Land, subject only to Permitted Exceptions and the lien securing the Construction
Loan. Such policy shall not contain the standard exceptions for discrepancies, encroachments,
overlaps, conflicts in boundary lines, shortages in area,or other matters that would be disclosed
by an accurate survey and inspection of the Land, for mechanics' and materialmen's liens, or for
rights or claims of parties in possession and easements or claims of easements not shown by the
public records. Subject to the terms and provisions of the Construction Loan any Net Proceeds
payable to the Developer under such policy shall be applied first to reimburse the Authority for
the portion of the Grant that has been disbursed. At closing, the amount of title policy
insurance will be limited and subject to pending disbursement of proceeds of the Construction
Loan,Developer Equity and the Grant.
Section 2.5. Insurance Policies. The Developer agrees that it shall,at all times during
the construction of the Improvements, procure and maintain or cause the General Contractor to
procure and maintain in full force and effect Builder's Risk - Completed Value Form insurance
insuring the Improvements and all building materials, supplies, and components delivered to or
stored upon the Land,against loss or damage by fire, lightning, and all other casualties and risks
covered by the extended coverage endorsement then in use in the State of Georgia to the full
insurable value of such property. Such policy or policies of insurance shall name the Developer
as the insured. In addition,the Developer shall cause the General Contractor at all times during
the construction of the Improvements to maintain comprehensive general liability insurance
providing insurance (with deductible provisions not to exceed $25,000 per occurrence) to the
extent of not less than$1,000,000 per occurrence against liability for personal and bodily injury
including death resulting therefrom and $1,000,000 per occurrence for damage to property,
including loss of use thereof, occurring on or in any way related to the construction of the
Improvements,with excess coverage or"umbrella" insurance for claims under such coverage in
the aggregate of not less than$5,000,000 for any one occurrence, and the Developer shall cause
the General Contractor to maintain workers' compensation insurance as required by law. Such
insurance policy or policies shall contain a provision that such insurance may not be cancelled by
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9915lIIAVJ
the issuer thereof without at least thirty(30)days' advance written notice to the Developer and
the Authority. All such policies or copies thereof or certificates that such insurance is in full
force and effect shall be eorfedth�° the Improvement�s. Such insuranand the ce policies or
commencement of constructionpolic esare hereinafter
called the"Insurance Policies."
Section 2.6.
Performance and Payment Bonds. Unless waived by both the
Construction Lender and the Authority,the Developer agrees that the Construction Contract shall
require the General Contractor, at or Bonds to prior
the Developer. All Netment of Proceeds received under any
ction of the
Improvements,to deliverY
Surety Bonds shall be applied to pay Costs of Construction.
Section 2.7. Construction. (a) The Developer shall enter into the Construction
Contract prior to the commencement of construction of the Improvements,which shall provide
for a fixed cost or guaranteed maximum price for the Improvements and for a commercially
reasonable retainage to be held until the Completion of Construction. Prior to the
commencement of construction of the Improvements,the Developer shall file with the Authority
(1) an estimate of the costs thereof (including the Cost Breakdown) and the estimated time
schedule for the completion of the Improvements and for the payment of such costs, which
estimates and schedules shall be approved in writing by the Architect and the Authority, and(2)
copies of(A) the Construction Contract, (B) the Plans and Specifications, and (C) waivers of
liens from the General Contractor and from any significant subcontractors to the extent required
in the Construction Contract.
(b) The Developer covenants to cause the Improvements to be constructed without
material deviation from the Plans and Specifications and the Construction Contract and warrants
that all real and personal property provided for therein will be necessary or appropriate in
connection with the Improvements. The Developer agrees to complete the acquisition,
construction, and installation of the Improvements as promptly as practicable and with all
reasonable dispatch pursuant to the estimated time schedule delivered to the Authority pursuant
to Section 2.7(a)hereof. The Developer shall issue or enter into all necessary purchase orders,
work orders,and agreements needed to undertake and complete the Improvements.
(c) The Developer shall not permit any mechanics' or materialmen's or other liens to be
perfected or remain against the Land or the Improvements for labor or materials furnished in
connection with the construction of the Improvements, provided that it shall not constitute an
Event of Default hereunder if such a lien is filed if the Developernotifies
! such lienhority in a manner
the
existence of such lien and if the Developer in good faith promptly contests
reasonably satisfactory to the Authority.
(d) The Developer may in its discretion make changes to the Improvements, to the
Construction Contract, or to any estimate, schedule, or Plans and Specifications therefor,
including any change orders under any Construction.Contract; provided that prior to any such
change becoming effective such change must be: (i) in writing, (ii) approved by the Architect,
which approval shall include a statement that all approvals of any Governmental Authority
required in connection with the change,if any,have been obtained, and(iii) approved in writing
by the Authority. No changes causing costs under the Construction Contract to exceed the fixed
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cost or guaranteed maximum price for the Improvements shall be made unless there shall have
previously been filed with the Authority satisfactory evidence of coverage of the increase in the
price under the related Surety Bond and a certificate of the Authorized Developer
Representative, approved by the Architect,that the total cost of the Improvements including the
change can be paid from moneys available from the Developer's Funding Sources.
Notwithstanding the above, the Developer shall not be required to get approvals herein in the
event the net results of such changes do not constitute a Material Deviation or Material
Departure.
(e) During the construction of the Improvements, at the request of the Authority, the
Developer shall prepare and deliver to the Authority a monthly status or progress report with
respect to the Improvements, setting forth such information as shall reasonably inform the
Authority of the status of the acquisition, construction, and installation of the Improvements,
including, without limitation, the then total estimated cost of construction as measured against
the original budget therefor,which report shall be approved by the Architect.
Section 2.8. Inspection. The Authority shall be entitled (but shall not be obligated)to
employ,on such basis as the Authority may require and at the Developer's sole cost and expense,
a construction consultant(hereinafter called the"Inspector")chosen by the Authority in its sole
discretion to render the following services:(i)to review,in such detail as may be required by the
Authority, the Plans and Specifications and all modifications and amendments thereto and to
suggest such alterations, modifications, changes, or amendments thereto as the Inspector may
deem appropriate; (ii)to review and inspect the Improvements during the course of construction
and certify to the Authority that the Improvements are being constructed in accordance with the
Plans and Specifications;(iii)to review Requests for Disbursements, hereinafter defined;(iv)to
certify to the Authority the extent to which construction of the Improvements has been
completed; and (v) to render such other services in connection with the inspection and
supervision of the construction of the Improvements as the Authority shall deem necessary or
desirable. The Inspector shall perforin these services from time to time and at such intervals as
the Authority may require. The Developer expressly acknowledges and agrees that the Inspector
shall be employed solely for the benefit of the Authority and that neither the Inspector nor the
Authority shall assume or incur, or be deemed to have assumed or incurred, any liability or
obligation whatsoever to the Developer or any other party. Without limiting the generality of the
foregoing,(a)the Authority makes no representations and assumes no obligations or liabilities to
the Developer or to any other party with respect to the quality of construction of the
Improvements or the absence of defects therefrom and (b) the Authority has retained the
Inspector as a consultant to the Authority only, the Inspector shall review the Plans and
Specifications and the progress of construction of the Improvements solely for the benefit of the
Authority, and neither the Inspector nor the Authority shall be deemed to have assumed any
liability to the Developer in connection with such review. The Developer shall indemnify and
forever hold the Authority harmless from and against any and all liabilities, claims, demands,
damages, losses,costs,and expenses, including attorneys' fees, resulting from the disbursement
of the Grant or from the condition of the Land or the Improvements whether related to the
quality of construction or otherwise and whether arising during or after the term of this
Agreement, and this provision shalt survive the termination of this Agreement and shall remain
in full force and effect so long as the possibility of any such liabilities, claims, demands,
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99232I1Ava
damages, losses, costs, or expenses shall exist.Developer agrees that the Authority may, but is
�
not required,to use the same Inspector as the Construction Lender for efficiencies.
Section 2.9. Completion. (a) Construction of the Improvements shall be completed
without material deviation from the Plans and Specifications on or before the Completion Date.
"Completion of Construction" shall have occurred only upon the satisfaction of the following
lld wo ng
conditions: (i)the Improvements, including any equipment, fittings, and fixtures req
be
installed by the Plans and Specifications, shall have been substantially completed and installed
without any material deviation from the Plans and Specifications;(ii)the permanent certificate of
occupancy shall have been issued by the appropriate Governmental Authority and shall have
been delivered to the Developer, and all other certificates, licenses, permits, authorizations,
consents, and approvals necessary for the full use and occupancy of the Improvements for have
ir
intended purposes, as required by any Governmental Authority having or claiming
to jurisdiction respecting the Land, shall have been issued by such Governmental Authority and
shall have been delivered to the Developer;and(iii)the Developer shall have delivered or caused
to be delivered to the Authority a written certificate f the of tArchihect,Improvements,oorm mentsd and substance
o the
reasonably satisfactory to the Authority, footage
effect that the construction of the Improvements, including all equipment, fittings, and fixtures
required to be installed by the Plans and Specifications, has been substantially completed and
installed without any material deviation from the Plans and Specifications and in accordance
with all applicable Governmental Requirements relating to the construction of the Improvements,
and to the effect that direct connection has been made to all abutting public utilities, including,
without limitation,water,electricity,gas,storm and sanitary sewer,and telephone.
(b) The Completion Date shall be evidenced to the Authority by a certificate of
substantial completion listing the items to be completed or corrected, if any,and the
amounts b the
to
be withheld therefor, signed by the Authorized Developer Representative and approvedY
Architect stating that, except for amounts available from the Developer's Funding Sources for
Costs of Construction not then due and payable, (i)construction of the Improvements has been
completed without material deviation from the Plans and Specifications and all labor, services,
materials, and supplies used in such construction have been paid or provided for; (ii) all other
facilities necessary in connection with the construction of the Improvements have been
constructed,acquired,and installed without material deviation from the Plans and Specifications
and all costs and expenses incurred in connection therewith have been paid or provided for;and
(iii) according to the "as built" survey of the Lande ora cccertificatevioof the Surk orve or, the
e
Improvements do not encroach on any other property o
requirements applicable to the Land. Notwithstanding the foregoing, such certificate may state
that it is given without prejudice to any rights against third parties that exist at the date of such
certificate or that may subsequently come into being. It shall be the duty of the Developer to
cause the certificate contemplated by this subsection to be furnished as soon as the construction
of the Improvements shall have been substantially completed.
(c) Within thirty (30 days of the Completion Date the Developer shall execute such
deeds or other instruments of conveyance necessary to convey to the Authority good and
marketable fee simple title to the Community Greenspace and the Unysis Parking Easement.
Such conveyances shall be subject only those operating and management agreements as agreed
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%09 I
10-%09I ISW-3
to by the Developer and the Authority for the efficient and mutually beneficial use,maintenance
and operations of the Community Greenspace and the Unysis Parking Easement,
Section 2.10. Enforcement of Construction Contract and Remedies Against General
Contractor and Subcontractors and Their Sureties and Against Manufacturers. The Developer
shall enforce the Construction Contract diligently and shall not do or refrain from doing any act
whereby the surety on any related Surety Bond may be released in whole or in part from any
obligation assumed by such surety or from any agreement to be performed by such surety, In the
event of any material default on the part of the General Contractor, the Architect, or other
contractor or any subcontractor, equipment manufacturer or dealer, or supplier under any
contract made by it in connection with the Improvements or in the event of a material breach of
warranty with respect to any materials, workmanship, equipment, or performance guaranty,the
Developer shall notify the Authority and shall proceed, either separately or in conjunction with
others, to pursue such remedies against the Architect, the General Contractor, contractor,
subcontractor, equipment manufacturer or dealer, or supplier so in default and against each
surety on any related Surety Bond for the performance of such contract as it may deem
advisable. The Developer shall advise the Authority of the steps it intends to take in connection
with any such default.
The Developer covenants that it shall take such action and institute such proceedings as
shall be necessary to cause and require all contractors and subcontractors and material suppliers
to complete their contracts diligently in accordance with the terms of such contracts, including,
without limitation, the correction of any defective work. All amounts recovered by way of
penalties, damages, whether liquidated or actual, refunds, adjustments, or otherwise in
connection with the foregoing, less any unreimbursed legal .expenses incurred to collect the
same,shall be applied to pay Costs of Construction.
The Developer covenants that it shall take such action and institute such proceedings as
shall be necessary to cause and require any manufacturers of the equipment comprising the
Improvements and any dealer to fulfill their warranties and contractual responsibilities diligently
in accordance with the terms of any purchase and installation contracts, including, without
limitation,the correction of any defective parts or workmanship.
Section 2.11. Governmental Approvals. The Developer covenants that it will obtain in
due course all necessary approvals, permits, and licenses from any and all Governmental
Authorities requisite to the acquisition, construction,and installation of the Improvements. The
Developer shall not do or permit others under its control to do any work related to the
Improvements unless the Developer shall have first procured and paid for all requisite municipal
and other governmental permits and authorizations. All such work shall be done in a good and
workmanlike manner and in compliance with all applicable building, zoning, and other
Governmental Requirements and in accordance with the Insurance Requirements.
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99233ItlSV-0
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Authority. The Authority hereby
represents and warrants to the Developer as follows:
(a) Creation;Authorization;Valid and Binding Obligations. The Authority is a
public corporation duly created and validly existing under and by virtue of the laws of the
State of Georgia, without limit as to the duration of its existence, and has all requisite
power and authority and all necessary licenses and permits to own and operate its
properties and to carry on its operations as they are now being conducted and as they are
presently proposed to be conducted. The Authority has all requisite power and authority
to execute and deliver this Agreement and to perform its obligations under this
Agreement. This Agreement has been duly authorized by all requisite corporate action
on the part of the Authority and duly executed and delivered by authorized
representatives of the Authority. This Agreement constitutes a valid obligation of the
Authority,legally binding upon and enforceable against the Authority accordancein with
its terms, except as such enforceability may be limited by applicable
insolvency, reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity.
(b) Actions Pending. There is no action, suit, investigation, or proceeding
pending or,to the knowledge of the Authority,threatened against the Authority, or any
properties or rights of the Authority,by or before any court,arbitrator, or administrative
or governmental body that has had or could reasonably be expected to result in a material
adverse effect upon, or a material adverse change in, any of the (i) legality, validity,
binding effect, or enforceability of this Agreement or (ii) ability of the Authority to
perform its obligations under this Agreement.
(c) Disclosure. Neither this Agreement nor any other document, certificate, or
statement furnished to the Developer by or on behalf of the Authority in connection
herewith contains any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein not materially
misleading. There is no fact peculiar to the Authority that could reasonably be expected
to have a material adverse effect upon, or a material adverse change in, any of the (i)
legality,validity,binding effect, or enforceability of this Agreement or(ii) ability of the
Authority to perform its obligations under this Agreement and that has not been set forth
in this Agreement or in the other documents,certificates, and statements furnished to the
Developer by or on behalf of the Authority prior to the date hereof in connection with the
transactions contemplated hereby.
(d) Enforcement of the Intergovernmental Downtown Development Contract between
the Consolidated Government and the Authority.The Authority represents that it has the
authority to enter into the Intergovernmental Downtown Development Contract between
the Consolidated Government,acknowledges that the Developer is the intended third
party beneficiary of such Contract,and the Authority and will enforce its rights under
-12-
such agreement.
Section 3.2. Representations and Warranties of Developer. The Developer hereby
represents and warrants to the Authority as follows:
(a) Formation:Authorization:Valid and Binding Obligations. The Developer is
a limited liability company duly formed,validly existing,and in good standing under and
by virtue of the laws of the State of Alabama, authorized to do business in Georgia,
without limit as to the duration of its existence,and has all requisite power and authority
and all necessary licenses and permits to own and operate its properties and to carry on its
operations as they are now being conducted and as they are presently proposed to be
conducted. The Developer has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement. This Agreement has
been duly authorized by all requisite company action on the part of the Developer and
duly executed and delivered by authorized representatives of the Developer. This
Agreement constitutes a valid obligation of the Developer, legally binding upon and
enforceable against the Developer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity.
(b) Actions Pending. There is no action, suit, investigation, or proceeding
pending or,to the knowledge of the Developer,threatened against the Developer, or any
properties or rights of the Developer, by or before any court, arbitrator, or administrative
or governmental body that has had or could reasonably be expected to result in any
Material Adverse Effect.
(c) Disclosure. Neither this Agreement nor any otherdocument, certificate, or
statement furnished to the Authority by or on behalf of the Developer in connection
herewith contains any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein not materially
misleading. There is no fact peculiar to the Developer that could reasonably be expected
to have a Material Adverse Effect and that has not been set forth in this Agreement or in
the other documents, certificates, and statements furnished to the Authority by or on
behalf of the Developer prior to the date hereof in connection with the transactions
contemplated hereby.
(d) Compliance with Governmental Requirements. The Improvements, when
constructed without material deviation from the Plans and Specifications and operated for
their intended purpose, will in all material respects conform to and comply with all
covenants, conditions, restrictions, and reservations affecting the Land and all
Governmental Requirements of all Governmental Authorities having jurisdiction over the
construction of the Improvements or over the Land.
-1 3-
992s1tiaws
•
(e) Utilities. All utility services (including, but not limited to, water,storm and
sanitary sewer,gas,electric,and telephone facilities)necessary for the construction of the
Improvements and the use and operation of the Improvements for their intended purpose
are available through public or private easements or rights-of-way at the boundaries of
the Land.
(t) Roads and Drives. All streets and roads necessary for access to the Land
have been completed, dedicated to public use, and accepted for maintenance by the
appropriate Governmental Authority. All other streets, roads, and drives necessary for
the full use and operation of the Improvements for their intended purpose either have
been completed or are included within the Improvements.
(g) Plans and Specifications. The Plans and Specifications (i)are satisfactory to
the Developer, (ii) comply in all material respects with all applicable Governmental
Requirements and applicable restrictive covenants, and (iii) have been approved, to the
extent required by applicable Governmental Requirement or any effective restrictive
covenant, by all Governmental Authorities or by the beneficiary of any such restrictive
covenant,as the case may be.
(h) Licenses and Permits. The Developer has obtained all certificates, licenses,
permits, authorizations, consents, and approvals necessary for the construction of the
Improvements from the appropriate Governmental Authorities, and all such certificates,
licenses,permits,authorizations,consents,and approvals are in full force and effect.
(i) Impositions. eere are no sitions that have been levied or otherwise
the Developer is delinquent in payment
asserted with respect
to the Land for which
thereof.
ARTICLE IV
COVENANTS AND AGREEMENTS
Until the Improvements are completed and this Agreement has been terminated, the
Developer covenants and agrees as follows:
Section 4.1. Use of Grant. The Developer shall receive the e lsdisbursementsof Cotruct on of de
of the Grant as a trust fund for the purpose of paying
Improvements,and the Developer shall use the disbursements of the Grant solely for the purpose
of paying the Costs of Construction and such incidental costs relative thereto as may be approved
in writing from time to time by the Authority,and for no other purposes.
Section 4.2. Compliance with Terms. The Developer shall do and perform,or cause to
be done and performed, all those acts and things necessary and appropriate to fully and
completely satisfy, observe, and comply with all of the terms, covenants, and conditions of this
Agreement.
Developer shall
Section 4.3. Dnstrunctand ted withoutely Construction.material deviation from the Plans and Specifications
Improvements to be
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99233111W4
14-
n 3ti -
and cause all improvements contemplated by this Agreement, including grading and all other on
and off-site improvements, to be made and completed with first-class materials and in a good,
substantial, and workmanlike manner. The Developer shall continually prosecute the
construction of the Improvements and shall exercise commercially reasonable efforts to cause
Completion of Construction to occur on or before the Completion Date,subject to delays caused
by events of Force Majeure.
Section 4.4. Subcontractors and Suppliers. The Developer shall not execute any
contract or become party to any arrangement for the performance or rendering of labor,services,
or work, or the supplying or furnishing of materials in the construction of the Improvements
costing in excess of$100,000.00 , except with persons or entities approved in writing by the
Authority.
Section 4.5. Change Orders. The Developer shall deliver to the Authority an original
counterpart of all change orders to or affecting the Construction Contract, the Plans and
Specifications,or the construction of the Improvements prior to the execution or approval of any
such change order by the Developer. No such change order, which would result in a Material
Deviation or Material Departure,shall become effective until it has been approved in writing by
the Authority.
Section 4.6. Compliance with Governmental Requirements. The Developer shall cause
the construction of the Improvements to comply in all material respects with all applicable
Governmental Requirements.
Section 4.7. Correction of Defects. The Developer shall notify the Authority of any
material departure from the Plans and Specifications and, upon demand by the Authority, the
Developer shall correct any and all defects in the Improvements and any and all material
departures from the Plans and Specifications not approved in writing by the Authority. Any
disbursement of the Grant shall not constitute a waiver of the Authority's right to require
compliance with this covenant with respect to any such defects or departures from the Plans and
Specifications, whether or not theretofore discovered by, or called to the attention of, the
Authority.
Section 4.8. Title to Land. The Developer agrees to protect, preserve, and defend its
interest in the Improvements and its fee simple title to the Land and to appear and defend such
interest and title in any action or proceeding affecting or purporting to affect the Land or the
Improvements.
Section 4.9. Title to Personal Property. The Developer shall purchase all materials,
personal property, fixtures, and equipment to be used or incorporated in the construction of the
Improvements so that the absolute ownership thereof is vested in the Developer immediately
upon delivery thereof to the Land, and the Developer shall produce and furnish, if required by
the Authority, the contracts, bills of sale, statements, receipted vouchers, or other agreements
under which title thereto is acquired by the Developer. Without limiting the generality of the
foregoing, the Developer expressly covenants and agrees that it shall not purchase any such
materials, personal property, fixtures, or equipment subject to any security agreement or other
agreement or contract under which any Person reserves the right to remove or repossess any such
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99333]13W-3
materials, personal property, fixtures, or equipment, without the prior written consent of the
Authority.
Section 4.10. Insufficiency of Funds.
If at any time during the term of this Agreement,
in the Authority's reasonable judgment and opinion, the remaining undisbursed Developer's
Funding Sources are insufficient to pay the costs and expenses of completing the Improvements
days
in accordance with the Plans and Specifications,the Developer shall,within
after written notice from the Authority, increase the Developer's Funding Sources in an amount
or amounts sufficient to remedy such condition and sufficient to pay any liens for services and
materials alleged to be due and payable at the time in connection with the Improvements.
Section 4.11. Insurance. wand Developer
the shallnmint ince (or shall cause the General
Contractor to maintain)in full
force
s.
Section 4.12. Pay Impositions. The Developer shall pay and discharge promptly all
Impositions imposed upon the Land or the Developer or upon any of the income or other
property of the Developer,as well as all claims of any kind that, if unpaid, might become a lien
or charge upon or against the Land.
Section 4.13. Pay Fees and Expenses. The Developer shall pay promptly when due all
reasonable charges, fees, and expenses required to satisfy the conditions of this Agreement,
including, without limitation, the fees for recording and filing documents,the fees of architects,
engineers, and contractors, and the fees of attorneys for the Authority incurred after the date of
this Agreement and attorneys for the Developer.
Section 4.14. Further Assurances. The Developer shall execute and deliver, or cause to
be executed and delivered,to the Authority such further documents, instruments,certificates,and
other items,and shall do all such additional and further acts and deeds,which the Authority shall
deem reasonably necessary oir desirable to comply with the terms and conditions of,or effectuate
the intent of,this Agreement.
Section 4.15. Pay Bills. The Developer shall promptly pay when due all bills for labor
or services performed h supplied
iyconnection
construction of the Improvements, wch are not beingdisputedn the reasonable discretion of
the Developer.
Section 4.16. Maintain Records. The Developer shall cause to be kept and maintained
full and accurate accounts and records of operations with respect to the construction of the
Improvements, according to generally accepted accounting principles and practices for the type
of business conducted bya the Developer,
thorny may reasonably Developer realize.l permit the Authority to inspect
such accounts and records,
Section 4.17. Improvements Inspection. As often as the Authority may require and
upon reasonable prior notice, the Developer shall permit the Inspector or any other person
designated by the Authority to enter upon and inspect the Land and all materials to be used in the
construction of the Improvements, and to examine the Plans and Specificationsdss progress
and
alldetailed of
plans and shop drawings that may be kept at the construction site, and
to
construction with,and to be advised as to the same by,the General Contractor,the Architect,and
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99253113W4
the Developer. Inspection of construction by the Inspector or any person designated by the
Authority shall be for the sole purpose of protecting the Authority and such inspection is in no
way to be construed or interpreted as a representation that there is compliance with the Plans and
Specifications or that construction of the Improvements is free from faulty or defective materials
or workmanship.
Section 4.18. No Modification. The Developer shall not modify, change, supplement,
alter, or amend the Plans and Specifications, the Construction Contract, or the Architectural
Contract in such a manner as to cause a Material Deviation or Material Departure, without the
prior written consent of the Authority.
Section 4.19. Indemnity. The Developer shall,and does hereby,indemnify and hold the
Authority harmless from, against,and in respect of any and all liabilities, damages,losses,costs,
and expenses,including reasonable attorneys' fees and expenses,suffered,incurred, or sustained
by the Authority in connection with any claim,demand,action, or cause of action arising out of,
by reason of, or in connection with the execution of this Agreement, the construction of the
Improvements, or the condition thereat;the disbursement of the Grant, or the consummation of
the transactions contemplated by this Agreement. The provisions of this paragraph shall survive
the termination of this Agreement and shall remain in full force and effect for so long as the
possibility of any such liabilities,damages,losses,costs,and expenses shall exist.
The Authority shall, and does hereby, indemnify and hold the Developer harmless from,against,
and in respect of any and all liabilities, damages, losses, costs, and expenses, including
reasonable attorneys' fees and expenses, suffered, incurred, or sustained by the Developer in
connection with any claim, demand,action,or cause of action arising out of, by reason of,or in
connection with the execution of this Agreement the disbursement of the Grant, or the
consummation of the transactions contemplated by this Agreement. The provisions of this
paragraph shall survive the termination of this Agreement and shall remain in full force and
effect for so long as the possibility of any such liabilities, damages, losses, costs, and expenses
shall exist,
Section 4.20. Restrictive Covenants. The Developer shall comply with all, if any,
restrictive covenants and easements affecting the Land.
Section 4.21. No Conveyance or Encumbrance. Prior to Construction the Developer
shall not convey or encumber,or permit the conveyance or encumbrance of(except for any Lien
securing the Construction Loan),the Land or any part thereof or interest therein without the prior
written consent of the Authority, and the Developer shall submit to the Authority for the
Authority's written approval any and all easements affecting the Land prior to the execution
thereof by the Developer, accompanied by a drawing or survey showing the exact location
thereof.
Section 4.22. Notification of Default. The Developer shall promptly notify the
Authority in writing of the occurrence of any Default or Event of Default under this Agreement,
Section 4.23. Licenses, Permits. The Developer shall maintain in full force and effect
all certificates, licenses, permits, authorizations, consents, and approvals from Governmental
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M53111W-3
Authorities relating to the construction of the Improvements, and the Developer shall obtain all
certificates, licenses, permits, authorizations, consents, and approvals required for the full use,
occupancy, and operation of the Improvements from all Governmental Authorities having
jurisdiction thereover, and shall deliver to the Authority copies of such certificates, licenses,
permits,authorizations,consents,and approvals.
ARTICLE V
DISBURSEMENTS
Section 5.1. In General. Subject to the terms and conditions hereof,the Authority shall
from time to time disburse to or for the account of the Developer the Grant. Disbursements of
the Grant shall be made in accordance with the procedure described in Section 5.6 hereof, after
due and proper submission of a Request for Disbursement, hereinafter defined, by the
Authorized Developer Representative and after satisfaction of all requirements herein set forth.
The Developer shall designate in writing to the Authority the Authorized Developer
Representative from time to time.The Developer shall not request,and the Authority shall not be
required to disburse, any amount that would at any time cause the amount then and theretofore
disbursed with respect to any line item in the Cost Breakdown to exceed(1)the amount set forth
in the Cost Breakdown for such item less the percentage of the cost of completed construction
specified in the Construction Contract to be retained or(2)the percentage of the amount set forth
in the Cost Breakdown for such item to be funded by the Grant.
Section 5.2. Costs of Construction. Disbursements of the Grant shall be made for the
payment of Costs of Construction and for no other purposes. The term "Costs of
Construction," as used in this Agreement,means the actual,reasonable costs paid or owing by
the Developer (but in no event in amounts exceeding those set forth in the Cost Breakdown
unless approved by the Authority and in no event for purposes other than those therein set forth)
in connection with the construction of the Improvements,as follows:
(a) amounts paid or owing by the Developer under the Architectural Contract or
the Construction Contract;
(b) the cost of the preparation of the Plans and Specifications, and the cost of
acquisition, construction, and installation of the Improvements and all construction,
acquisition;and installation expenses required to provide utility services or other facilities
and all real or personal properties deemed necessary in connection with the
Improvements (including development, architectural, engineering, and supervisory
services with respect to any of the foregoing);
(c) labor,services,materials,and supplies used or furnished in site improvement
and in the construction of the Improvements,including all costs incident thereto,the cost
of the construction, acquisition, and installation of utility services or other facilities
serving the Land,all real and personal property deemed necessary in connection with the
Improvements, , engineering, and reasonable consulting and development fees payable
and the miscellaneous expenses incidental to any of the foregoing items including the
premiums on any Surety Bonds;
-1 8-
99Z U3W-3
(d) to such extent as they shall not be paid by the General Contractor, the
premiums on all Insurance Policies until the Completion Date;
(e) expenses incurred in seeking to enforce any remedy against any contractor or
subcontractor or their surety in respect of any default under a contract relating to the
construction of the Improvements;
(f) the out-of-pocket expenses of the Developer, if any, including, but not
limited to, architectural, engineering, and supervisory services, with respect to the
construction of the improvements;
(g) the fees, or out-of-pocket expenses, if any, of those providing services with
respect to the construction of the Improvements, including, but not limited to,
architectural,engineering,surveying, legal,accounting,and supervisory services;
(h) the fees and out-of-pocket expenses of the Inspector;and
(i) such amounts, if any,as shall be necessary to reimburse the Developer in full
for all advances and payments made by it for any of the items set forth in clauses (a)
through (h) above, provided, however, should there be any discrepancy between any of
the items set forth in clauses (a) through (h) above and the Cost Breakdown, the
provisions of the Cost Breakdown shall control, unless otherwise approved by the
Authority
Section 5.3. Representations and Warranties for Each Disbursement of Grant. The
Developer,by submitting to the Authority a Request for Disbursement,shall be deemed and held
to warrant and represent to the Authority,as of the date of each such Request for Disbursement;
the following,knowing that the Authority is relying on each such representation and warranty:
(a). that each and every representation and warranty set forth in Article III of this
Agreement is true and correct in all material respects on and as of the date of each such
Request for Disbursement;
(b) that the Developer has performed all duties and obligations on its part
required to be performed under the provisions of Article IV of this Agreement;
(e) that no Default or Event of Default shall have occurred and be continuing on
such date;
(d) that the Developer's Funding Sources not then disbursed are sufficient to pay
the costs and expenses of completing construction of the Improvements in accordance
with the Plans and.Specifications;
(e) that all sums previously disbursed by the Authority have been used solely for
purposes permitted by this Agreement and that the specific disbursement that the
Developer is then requesting will be so used;and
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9925511$W4
(0 that all sums then due and owing for labor or services performed or rendered,
and materials supplied or furnished and used or on hand and to be used in construction of
the Improvements have been paid or will be paid promptly with the disbursement that the
Developer is then requesting and such other amounts as may be required.
Section 5.4. Request for Disbursement. The Developer shall request all disbursements
under this Agreement of the Grant by submission of duplicate copies of a request for
disbursement,herein called a"Request for Disbursement,"to the Authority and the Inspector,
in accordance with the procedure set forth in Section 5.6 hereof. Each Request for
Disbursement,except for the final disbursement,shall include the following:
(a) A written draw request,hereinafter called the"Draw Request,"comprised of
the following: (i) a standard American Institute of Architects Document 0702,
Application and Certificate for Payment, and American Institute of Architects Form
G703, Continuation Sheets, showing by trade the cost of all work on the Improvements
and the cost of materials incorporated into the Improvements or stored on the Land,along
with that portion of such costs to be funded by the Grant, all to the date stated in the
Draw Request (ii) copies of all invoices to be paid or reimbursed out of the funds
requested to be disbursed; and (iii) evidence, in the form of receipted invoices or such
other form as the Authority may require,that the previous disbursement was paid by the
Developer according to the Draw Request therefor. The Draw Request must be signed by
the Developer and the General Contractor. The cost break-down included in the Draw
Request shall show the percentage of completion of each line item on the Cost
Breakdown as submitted to the Authority,and the accuracy of the cost break-down shall
be certified by the Developer,the General Contractor,or, as to any items not within the
scope of the Construction Contract, by the contractors directly responsible to the
Developer for such items.
(b) A current certificate of the Developer, in form and substance reasonably
satisfactory to the Authority, certifying as to compliance with each and every term and
condition of this Agreement,and containing an estimate by the Developer of the Costs of
Construction then and theretofore incurred,the cost of completing the construction of the
Improvements,and the amount of each Developer's Funding Source that funded each line
item on the Cost Breakdown of the Costs of Construction then and theretofore incurred
and expected to be incurred in completing the construction of the Improvements, with
such supporting detail as the Authority shall reasonably require, including such
information as shall be sufficient to demonstrate to the Authority that the amount of the
Developer's Funding Sources remaining for subsequent disbursements will be sufficient
to pay the remaining Costs of Construction.
(c) A certificate of the General Contractor, in form and substance reasonably
satisfactory to the Authority,dated not more than ten(10)days prior to the date of such
Request for Disbursement, which shall include(i) a specific representation and warranty
that all payments theretofore made to the General Contractor by the Developer have been
used by the General Contractor solely to pay for labor or services performed or rendered,
or materials supplied or furnished in connection with the construction of the
Improvements, and (ii) an estimate of the Costs of Construction under the Construction
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$23113W4
Contract then and theretofore incurred and the cost of completing performance under the
Construction Contract, with such supporting detail as the Authority shall reasonably
require, including such information as shall be sufficient to demonstrate to the Authority
that the amount of the Developer's Funding Sources remaining for subsequent
disbursements will be sufficient to pay the remaining Costs of Construction.
(d) A Certificate of the Inspector, in form and substance reasonably satisfactory
to the Authority, dated not more than ten(10)days prior to the date of such Request for
Disbursement, stating: (1) that the Inspector has inspected the Land and found that each
category of work with respect to which the Draw Request relates has been done in
compliance with the Plans and Specifications and that all labor and services with respect
to,and materials incorporated into,the construction to the date of such certificate comply
with the Plans and Specifications, (ii)that the Developer's Funding Sources which will
remain after disbursement of the Draw Request which is the subject of the Request for
Disbursement is sufficient for the completion of construction of the Improvements in
accordance with the Plans and Specifications, and (iii) such other and additional
information as the Authority may from time to time reasonably require.
(e) At the sole option of the Authority, a list of the names and addresses of all
materialmen, laborers, and subcontractors with whom the General Contractor or the
Developer has made agreements for the performance or rendering of labor or services on,
or the supplying,furnishing,or delivery of materials to,the Land.
Section 5.5. Request for Final Disbursement. The Developer shall request the final
disbursement of the Grant by submission of duplicate copies of a Request for Disbursement to
the Authority and the Inspector in accordance with the disbursement procedure set forth in
Section 5.6 hereof. The Request for Disbursement with respect to the final disbursement shall
include the following:
(a) A final Draw Request comprised of the following: (i) a standard American
Institute of Architects Document G702, Application and Certificate for Payment, and
American Institute of Architects Form G703, Continuation Sheets, showing by trade the
cost of work on the Improvements and the cost of materials incorporated into the
Improvements or stored on the Land, all to the date stated in the Draw Request; (ii)
copies of all invoices to be paid or reimbursed out of the funds requested to be disbursed;
and (iii) evidence, in the form of receipted invoices or such other form as the Authority
may require, that the previous disbursement was paid by the Developer according to the
Draw Request therefor. The Draw Request must be signed by the Developer and the
General Contractor, The cost break-down included in the Draw Request shall show the
percentage of completion of each line item on the Cost Breakdown as submitted to the
Authority, and the accuracy of the cost break-down shall be certified by the Developer,
the General Contractor, or, as to any items not within the scope of the Construction
Contract,by the contractors directly responsible to the Developer for such items.
(b) Provisions for the escrow of the sum of-Fifteen Thousand and no/100 Dollars
($15,000.00) to insure payment, upon final completion of construction of each Phase of
the Project, for a final "as-built" survey prepared by the Surveyor showing the
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,ssssnsWa
dimensions and locations of the Improvements in addition to any other information
required to be shown by the Survey.
(c) A certificate of the Developer,in form and substance reasonably satisfactory
to the Authority, certifying as to compliance with each and every term and condition of
this Agreement,and stating the total Costs of Construction.
(d) Affidavits of the General Contractor, sworn to by an authorized agent of the
General Contractor, in form and substance reasonably satisfactory to the Authority,
which shall include without limitation (i) a specific representation and warranty that all
payments made to the General Contractor by the Developer have been used by the
General Contractor solely to pay for labor or services performed or rendered,or materials
supplied or furnished in connection with the construction of the Improvements, (ii) a
statement of the total Costs of Construction and a specific representation and warranty
that all such Costs of Construction have been paid in full, and (iii) a statement that the
General Contractor has been paid in full the agreed price for or the reasonable value of
the construction of the Improvements (except for so much thereof as will be paid from
the final disbursement).
Section 5.6. pmt shall be made according to thelfol�iowmg perdu for Disbursements and all
disbursements of the G
(a) The Developer shall submit to the Authority and the Inspector not less than
ten(10) days prior to the expected date of disbursement,duplicate copies of the Request
for Disbursement; provided,however, that the Request for Disbursement with respect to
the final advance shall be submitted not less than twenty(20)days prior to the expected
date of disbursement thereof.
(b) Upon receipt of each Request for Disbursement,the Inspector shall promptly
review the Request for Disbursement. Upon completion of its review,the Inspector shall
deliver to the Authority its written report that either(i)the Request for Disbursement is
acceptable or (ii) the Request for Disbursement is unacceptable, in which event the
Inspector shall specify the defects in the Request for Disbursement and any specific items
of the requested disbursement that it recommends be disallowed. The Inspector shall
forward to the Developer a copy of the report to the Authority with respect to each
Request for Disbursement.
(c)Within seven(7)days of its receipt of the Inspector's report with respect to the
Request for Disbursement, the Authority shall review such report and the Request for
Disbursement and, in its reasonable discretion, shall conclusively determine the amount
(if any) eligible to be disbursed under the Request for Disbursement in accordance with
the terms of this Agreement,and such shall be the amount disbursed by the Authority.
(d) On or prior to the date of the disbursement, the Authority will cause the
amount of the disbursement to be drawn under the Trust Agreement and remitted to the
Developer in immediately available funds.
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S91S3113W4
Notwithstanding anything to the contrary set forth above,the Authority shall not be required to
make any disbursement under this Agreement(i)in an amount of less than$10,000 or(ii)unless
and until all conditions precedent to such disbursement shall have been satisfied and in no event
shall the Developer request, or shall the Authority be required to make, any disbursement less
than thirty(30)days after the next preceding disbursement.
Section 5.7. Conditions Precedent to First Disbursement. In addition to all other
requirements and additional conditions precedent relative to disbursements under this
Agreement,the following shall be conditions precedent to the Authority's obligation to make the
first disbursement under this Agreement(except for disbursements to pay the Architect amounts
due under the Architectural Contract, which may be paid before the following conditions
precedent are satisfied):
(a) The Developer and the General Contractor shall have executed and delivered,
and the Authority shall have received and,approved,the Construction Contract.
(b) The Developer shall have delivered to the Authority, and the Authority shall
have approved, the Plans and Specifications, the Cost Breakdown, and a detailed
construction schedule. There shall be no material variation from the Plans and
Specifications,the Cost Breakdown,or such detailed construction schedule,nor shall the
same be modified,amended,or revised,without the Authority's prior written consent.
(c) A Certificate of the Inspector, in form and substance reasonably satisfactory
to the Authority, stating that the moneys available to be disbursed from the Developer's
Funding Sources which will remain after prior disbursements to pay the Architect are
sufficient for the construction of the Improvements in accordance with the Plans and
Specifications.
Section 5.9. Conditions Precedent to All Disbursements. In addition to all other
requirements and conditions precedent relative to disbursements of the Grant under this
Agreement, the following shall be conditions precedent to the Authority's obligation to make
subsequent disbursements of the Grant under this Agreement,after the first advance:
(a) the representations and warranties of the Developer for each advance set
forth in Section 5.3 hereof shall be true and correct in all material respects;and
(b) the Developer shall have submitted a Request for Disbursement complying in
form and substance with the requirements of Section 5.4 hereof,and in accordance with
the disbursement procedure set forth in Section 5.6 hereof; provided, however, that the
Request for Disbursement with respect to the final disbursement shall comply in form
and substance with the requirements of Section 5.5 hereof.
Section 5.10. Conditions Precedent to Final Disbursement. In addition to all other
requirements and conditions precedent relative to disbursements of the Grant under this
Agreement,the following shall be conditions precedent to the Authority's obligation to make the
final disbursement of the Grant under this Agreement:
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99255113W.3
(a) Completion of Construction shall have occurred on or before the Completion
Date and on or before the date of the Request for Disbursement with respect to the final
disbursement,and the Inspector shall have certified to the Authority to that effect;and
(b) all Costs of Construction(except for so much thereof as will be paid from the
final disbursement) shall have been paid in full prior to the date of the Request for
Disbursement with respect to the final disbursement.
Section 5.11. Special Disbursements and Payments. Anything herein to the contrary
notwithstanding, the Authority may, at its sole option and discretion, from time to time and at
any time, disburse directly to the party or parties entitled thereto such sum or sums as may be
reasonable or necessary, as determined in the Authority's sole judgment,for the payment of any
fees or expenses relating to title insurance, surveys, inspections, reasonable attorneys' fees,
insurance premiums, Impositions against the Land, Costs of Construction, and any and all
charges,liens,and encumbrances upon or against the Land.
ARTICLE VI
INSURANCE;DAMAGE AND DESTRUCTION
Section 6.1. Insurance to be Maintained by the Developer. (a)Throughout the term of
this Agreement, the Developer shall keep the Improvements or cause the same to be kept
continuously insured against such casualties, contingencies, and risks as are set forth below,
paying as the same become due all premiums in respect thereto:
(1) Property Insurance, insurance upon the repair or replacement basis in an
amount not less than 100% of the then actual cost of replacement (without taking into
account any depreciation, and exclusive of excavations, footings, foundations,
landscaping, and paving)of the Improvements (with deductible provisions not to exceed
$25,000 in any one casualty) against any peril included within the classification "All
Risks of Physical Loss;"
(2) Flood Insurance. insurance under the Federal Flood Insurance Program
within the minimum requirements and amounts required for federally financed or assisted
loans under the Flood Disaster Protection Act of 1973, as amended,if any portion of the
Improvements is eligible under such program;and
(b) The Developer shall deliver or cause to be delivered to the Authority (1) on or prior
to the Completion Date, a certificate to the effect that the insurance policies maintained by the
Developer comply with the requirements of this Section 6.1;(ii)not less than forty-five(45)days
prior to the expiration date of any of the insurance policies required to be maintained under this
Section 6.1, evidence that such insurance policies will be renewed or replaced; and(iii)prior to
the expiration date of such insurance policies,among other things,an original of the certificate of
insurance and evidence of payment of the applicable premium for such renewal or replacement.
Certified copies of such replacement insurance policies or a certificate of the insurer that the
same has been issued and is in full force and effect shall be delivered to the Authority promptly
after the Developer's receipt thereof but in any case within thirty (30) days after receipt thereof
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by the Developer. The Developer shall have the right to carry the insurance provided for in this
Section 6.1 or any portion thereof under allocated value blanket policies, but certificates
evidencing that the above described insurance policies are in full force and effect, together with
copies of the blanket policies,shall be supplied to the Authority.
(c) The Developer shall comply or cause compliance with all Insurance Requirements
before the expiration of any applicable extension or grace period and shall not bring or
knowingly keep or permit to be brought or kept any article upon the Improvements or knowingly
cause or permit any condition to exist thereon that would be prohibited by any Insurance
Requirement,or would invalidate insurance coverage required hereunder to be maintained by the
Developer on or with respect to any part of the Improvements.
(d) All insurance required by this Section 6.1 shall be taken out and maintained in
generally recognized responsible insurance companies rated not less than "A" by A.M. Best &
Co.,with a financial rating size of Class IX or larger, and qualified to issue such policies in the
State of Georgia,selected by the Developer and subject to the written approval of the Authority,
which approval shall not be unreasonably withheld, conditioned, or delayed. All policies
evidencing such insurance shall be subject to the written approval of the Authority, which
approval shall not be unreasonably withheld, conditioned, or delayed. All such policies shall
provide that such insurance may not be modified adversely to the interests of the Developer or
the Authority or cancelled by the issuer thereof without at least thirty(30)days'written notice to
the Developer and the Authority.
Section 6.2. Damage and Destruction. (a) If during the term of this Agreement the
Improvements are destroyed or are damaged (in whole or in part)by fire or other casualty, the
Developer shall promptly give written notice thereof to the Authority. All Net Proceeds
recovered under the insurance policies required to be carried pursuant to Section 6.1 hereof shall
be applied to repair, rebuild, restore, or re-equip the Improvements to substantially the same
condition thereof as existed prior to the event causing such damage or destruction with such
changes,alterations,and modifications(including the substitution and addition of other property)
as may be desired by the Developer and as may be approved in writing by the Authority and as
will not impair the value or the character of the Improvements, whereupon the Developer shall
apply so much as may be necessary of the Net Proceeds of such insurance to payment of the
costs of such repair,rebuilding,or restoration.
(b) In the event the Net Proceeds are not sufficient to pay in full the costs of any such
repair, rebuilding, restoration, or re-equipping, the Developer shall nonetheless complete such
work and shall pay that portion of the costs thereof in excess of the amount of such Net
Proceeds.
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ARTICLE VII
EVENTS OF DEFAULT
Each of the following events shall constitute an Event of Default under this Agreement:
(a) the Developer shall (1) apply for or consent to the appointment of or the
taking of possession by a receiver,custodian,trustee,or liquidator of the Developer or of
all or a substantial part of the property of the Developer;(2)admit in writing the inability
of the Developer,or be generally unable,to pay the debts of the Developer as such debts
become due; (3) make a general assignment for the benefit of the creditors of the
Developer; (4)commence a voluntary case under the federal bankruptcy law(as now or
hereafter in effect);(5) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of
debts; (6)fail to controvert in a timely or appropriate manner,or acquiesce in writing to,
any petition filed against the Developer in an involuntary case under the federal
bankruptcy law; or(7)take any action for the purpose of effecting any of the foregoing;
or
(b) a proceeding or case shall be commenced, without the application of the
Developer, in any court of competent jurisdiction, seeking (I) the liquidation,
reorganization, dissolution, winding-up, or composition or readjustment of debts of the
Developer; (2)the appointment of a trustee,receiver,custodian, liquidator,or the like of
the Developer or of all or any substantial part of the assets of the Developer; or (3)
similar relief in respect of the Developer under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition and adjustment of debts, and
such proceeding or case shall continue undismissed, or an order,judgment, or decree
approving or ordering any of the foregoing shall be entered and continue in effect, for a
period of sixty(60)days from commencement of such proceeding or case or the date of
such order,judgment, or decree, or any order for relief against the Developer shall be
entered in an involuntary case or proceeding under the federal bankruptcy law;or
(c) any representation or warranty made by the Developer herein shall be false or
misleading in any material respect on the date as of which made(or deemed made);or
(d) any default shall occur in the performance or observance of any term,
condition, or provision contained in this Agreement, which default shall continue for
thirty (30) days after the date the Authority gives the Developer written notice thereof;
provided, however, that if such failure to perform shall necessitate longer to cure than
such thirty (30) day period, then such cure period shall be extended for such period of
time, not to exceed ninety (90) days, as is reasonably necessary to cure such failure to
perform if the Developer commences such cure within thirty (30) days after receipt of
written notice from the Authority and thereafter proceeds diligently and in good faith to
cure;or
(e) any material provision of this Agreement shall at any time for any reason
cease to be valid and binding in accordance with its terms on the Developer, or the
26-
validity, enforceability, or priority thereof shall be contested by the Developer, or the
Developer shall terminate or repudiate (or attempt to terminate or repudiate) this
Agreement;or
(1) failure of the Developer to proceed continuously with the construction of the
Improvements,except for stoppage for not more than ninety(90)days in the aggregate by
reason of fire, labor disputes, strikes, acts of God, or other causes beyond the control of
the Developer;or
(g) failure of the Developer to achieve Completion of Construction on or before
the Completion Date,subject to delays caused by events of Force Majeure.
ARTICLE VIII
REMEDIES ON DEFAULT
Section 8.1. Generally. Upon the occurrence of an Event of Default under this
Agreement and subject to any cure rights granted to the Construction Lender,the Authority may
with advance written notice to the Developer and the Construction Lender, take all, any, or any
combination of the following actions and the other actions permitted by this Article VIII,
whether consistent or inconsistent:
(a) Termination of Disbursement Obligation. The Authority may suspend or
terminate all obligations of the Authority under this Agreement to make further
disbursements of the Grant.
(b) Legal Proceedings. The Authority may from time to time take whatever
action at law or in equity or under the terms of this Agreement may appear necessary or
desirable to enforce performance and observance of any obligation, agreement, or
covenant of the Developer under this Agreement.
Section 8.2. Continuance of Grant. The Authority may choose not to take any of the
foregoing actions and may continue to act,with respect to the Developer and the Grant,as if no
Default or Event of Default had occurred.Any such continuance shall not be or be construed as a
waiver of the Authority's rights, and the Authority may assert the Default or Event of Default
and take any actions provided in this Article at any time after such Default or Event of Default,
Section 8.3. Remedies Cumulative. All or any of the foregoing remedies and actions
are cumulative of and in addition to,and not restrictive or in lieu of,the remedies provided for or
allowed by law or in equity.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Term. The term of this Agreement shall commence on the date of
execution and delivery of this Agreement and shall continue until the termination of the Trust
Agreement.
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Section 9.2. Entire Agreement. This Agreement supersedes all prior discussions and
agreements between the Developer and the Authority with respect to the Grant and contains the
sole and entire understanding between the Authority and the Developer with respect to the Grant.
This Agreement shall not be modified or amended except by an instrument in writing executed
by or on behalf of the Authority and the Developer.
Section 9.3. Applicable Law. This Agreement shall be governed by,construed under,
and interpreted and enforced in accordance with the laws of the State of Georgia.
Section 9.3. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same agreement.
Section 9.4. Time is of the Essence. Time is and shall be of the essence of this
Agreement.
Section 9.5. Waiver. The Authority shall not be deemed to waive any of the
Authority's rights or remedies under this Agreement unless such waiver be express, in writing,
and signed by or on behalf of the Authority. No delay,omission,or forbearance by the Authority
in exercising any of the Authority's rights or remedies shall operate as a waiver of such rights or
remedies. A waiver in writing on one occasion shall not be construed as a waiver of any right or
remedy on any future occasion.
Section 9.6. The Authority's Consent or Approval. Any consent or approval required
to be obtained from the Authority under any provision of this Agreement shall be effective only
if in writing and signed on behalf of the Authority and shall not be unreasonably withheld,
conditioned, or delayed. The Authority agrees that,upon written notification by the Developer
that the failure to obtain any consent or approval required to be obtained from the Authority
under any provision of this Agreement shall result in a stoppage of delay of construction,it shall
within three(3)business days provide such consent or approval or a written rejection thereof.
Section 9.7. Assignment and Binding Effect. This Agreement shall be binding upon
the Developer and its successors and assigns and shall inure to the benefit of the Authority and
its respective successors,transferees,and assigns, and no person other than the Authority and its
assigns shall under any circumstances be deemed to be a beneficiary of any provision of this
Agreement.
Section 9.8. No Third Party Beneficiaries. All conditions to the obligations of the
Authority to make disbursements under this Agreement are imposed solely and exclusively for
the benefit of the Authority. Neither the Developer nor any other person shall have standing to
require satisfaction of any such condition or be entitled to assume that the Authority will refuse
to make disbursements in the absence of strict compliance with any or all thereof,and neither the
Developer nor any other person shall,under any circumstances,be deemed to be a beneficiary of
any'such conditions, any or all of which may be freely waived in whole or in part by the
Authority at any time if in its sole discretion the Authority deems it advisable to do so. The
Authority makes no representations or warranties and assumes no obligation or responsibility
with respect to the quality of the construction of the Improvements.
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99253113W4
Section 9.9. No Agency. The Authority is not the agent or representative of the
Developer, and the Developer is not the agent or representative of the Authority,and nothing in
this Agreement shall be construed to make the Authority liable to anyone for any labor or
services performed or rendered on, or materials supplied or furnished to, the Land or for any
debts or claims accruing against the Developer. Nothing in this Agreement shall be construed to
create any privity of contract or other relationship between the Authority and anyone performing
or rendering labor or services on, or supplying or furnishing materials, to the Land or for the
construction of the Improvements.
Section 9.10. No Partnership or Joint Venture. Neither any provision of this Agreement
nor any acts of the parties to this Agreement shall be construed to create a partnership or a joint
venture between the Developer and the Authority.
Section 9.11. Survival. The representations,warranties,and covenants contained in this
Agreement shall survive the disbursement of the Grant and shall remain in full force and effect
until the termination of this Agreement.
Section 9.12. Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 9.13. Captions. The captions used in this Agreement are for convenience of
reference only and do not in any way restrict,modify,or amplify the terms of this Agreement.
Section 9.14. Notices. All notices, requests,and other communications hereunder shall
be in electronic, telephonic (confirmed in writing), or written form and shall be given to the
party to whom sent,addressed to it at its address set forth below.
If to the Authority: DOWNTOWN DEVELOPMENT AUTHORITY OF
AUGUSTA RICHMOND COUNTY
936 Broad Street,Suite 107
Augusta,Georgia 30901
Attention: Executive Director
If to the Developer BLOC Global Development Group,LLC
505 North 20"'Street Suite 900
Birmingham,AL 35203
Attention: J.Michael Carpenter and Herschell
Hamilton
With Copy to:
Retail Specialists LLC
120 18th Street S Suite 201
Birmingham AL 35233
Attn:Rodney Berstein and Robert Jolly
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992511131V 3
Each such notice, request, or communication shall be effective (i) if given by mail, three (3)
business days after such communication is deposited in the United States mail with first class
postage prepaid, return receipt requested, addressed as aforesaid; (ii) if sent for overnight
delivery by reputable national overnight delivery service, one (I) business day after such
communication is entrusted to such service for overnight delivery and with recipient signature
required, addressed as aforesaid; or (iii) if given by any other means, when delivered at the
address of the party to whom such notice is being delivered.
Section 9.15. Limited Obligations. It is understood and agreed that in the performance
of the agreements of the Authority herein contained, any obligation it may thereby incur for the
payment of money shall not constitute a general obligation of the Authority but shall be a limited
obligation of the Authority payable solely out of available moneys to be drawn under the Trust
Agreement, and no recourse shall be had or claim shall be made against any other assets,
properties, or revenues of the Authority to satisfy any obligations of the Authority under this
Agreement.
Section 9.16 Estoppel Certificate. The Authority shall provide an estoppel
certificate
in form and content reasonably acceptable to the Authority, upon requestby any
Construction Lender.
[Signatures and Seals to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on their behalf,all as of the date first above stated.
DOWNTOWN DEVELOPMENT
AUTHORITY OF AUGUSTA-
RICHMOND COUNTY
(SEAL) By:
Chairman
Attest:
Secretary
AUGUSTA DEVELOPERS,LLC
By:
Manager
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99tssus\va
By:
Manager
0434914L1 31
Exhibit"F"
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04349141.1 32
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Wain necessary pemisalansi.
Location otu *VOW onorawing the surveyed properly asmrinedby.'
• obserasedeiddrnce warmed pursuant to Section OEM
• evidence dam plans regnestadbythe sur or and obtained Own Way commies,
orprovided hydieni MIthatbmrace as t0 Nae sources orlitontrelaN,and
• ragas regeoested by the evoyerpursuAant to an Oft nEttq►hboete a Orme:
Repirmentethfe exanip les or such alines Include,bul ere not Wed to:
• Manholes,
/( ohy Mee and indications 01
• Wireseadicabtea(N cfud 7 their h#rrwan,if ead4y�ash Ni the
surnyed property.and dipoles on or loalapromirm Wel op**nesloth*�
the sowed properly.
IS *mature ores pcNrWal
enarlaxSmMt.the gFner nt or olienaeschkelaNYp ie Crossmantbent or
Overawes;and
• telly company ins on the surmi ad property.
Nide to the MM.insurer,end tender-With Meld b Term A,Item it sewers
hntantsdlon toaipterasandwri gsMRbeconlMaedwilt0QaerIeaaaldenceofutiles
pursue*to Section S.Eiv to develop*Ow olds underground ypiYBes /however,
h 4401/4004 SW exact ocatson awlArrlrnand Skatiotat armor be scant*,
oarreasisiy,and Me*'U*ctbd inadlh IIA in eoara/urt dkihns,Ott arother ainilar
Maly keel*rosuesb from surveyors maybe towed orread kr an tsooniptete response,
bOat*case the ar+rrem shell note onthe pat ormop how this affected Meeraraoyor'a
assessment cribs lcatdn 018*Wades.Where addlionalcw more deleted infonnefon
is ted*e the client M adlbed that excavation andar a pthste stay bate request algf►
be necaseer3
ft £1 As specified by the client,GovenunernfalAgrency aj. .ey.rataled regmtemenle lh d.,MID
surveys,eys,surveys fcrhues cn Rwesu or Land Mcnagernentasaneped h• .
04349141,1 33
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