HomeMy WebLinkAboutLEASE BY AND BETWEEN GEORGIA TECHNOLOGY AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF AUGUSTA, GA FOR USE OF CERTAIN REAL PROPERTY_ FOR OPERATION AND MAINTENANCE OF PARKING DECK PURSUANT TO THE TERMS OF THE PARKING DECK AGREEMENTI
LEASE
THIS LEASE (hereinafter referred to as the "Lease") is made and entered this ao+vi day of
, 2017 ("Effective Date"), by and between Georgia Technology Authority ("Lessor") and
Urban Redevelopment Agency of Augusta ("Lessee"), for the use of certain real property located in Augusta,
Georgia.
WITNESSETH:
WHEREAS, Lessor is the owner of certain real property consisting of approximately 1.74 acres situated in
Augusta, Georgia,as more particularly identified in Exhibit"A"attached hereto(the"Premises");
WHEREAS, it is the intention of the parties that a parking facility shall be constructed on the Premises(the
"Parking Deck");and
WHEREAS, Lessee desires to lease the Premises in order to operate and maintain the Parking Deck
pursuant to the terms of that certain Parking Deck Agreement, dated on or about the date hereof, by and between
Lessor and Lessee(the"Parking Deck Agreement").
NOW, THEREFORE, in consideration of the mutual promises herein contained, upon the following terms
and conditions to be paid and kept by Lessee, Lessor grants and leases, and Lessee does hereby accept, take and
lease,the Premises from Lessor.This Lease creates in Lessee an estate for years.
1.
USE OF PROPERTY
1.1 The Premises shall be used by Lessee for the purpose of operating and maintaining all
improvements currently located or to be constructed on the Premises, including the Parking Deck (collectively, the
"Improvements").
1.2 Without limitation of the foregoing,Lessee shall not: (a)use the Premises or Improvements for any
illegal purpose, nor for any purpose inimical to the health, safety and welfare of the public, or(b)commit, or suffer
to be committed, any waste in or on the Premises and Improvements,nor shall it create or permit any nuisance in or
on the Premises.
1.3 Lessor retains a non-exclusive easement on, over, under, upon, across, or through the Premises
together with the right of ingress and egress to adjoining land of Lessor as may be reasonably necessary for Lessor to
exercise its rights and obligations under the Parking Deck Agreement, including, but not limited to,the maintenance
and repair obligations of Lessor and Lessor's easement rights in and to the Parking Spaces(as such term is defined in
the Parking Deck Agreement).
2.
OCCUPANCY
Lessee shall use the Premises continuously throughout the Term of this Lease and shall not desert,
surrender,abandon or cease using the Premises during the Term of this Lease.
3.
RENT
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In consideration of the payment of $100.00 and the mutual covenants under this Lease, not additional
payments shall be due under this Lease.
4.
TERM AND TERMINATION
The term of this Lease shall be for a period of twenty-two (22) years (the "Term") commencing on the
Effective Date. Notwithstanding anything contained herein to the contrary, this Lease shall automatically terminate
upon the occurrence of one of the following: (I)twenty four(24)months after the satisfaction by Augusta, Georgia
("Augusta") of its obligations under that certain Agreement of Sale relating to the Urban Redevelopment Agency of
Augusta Revenue Bonds (Parking Garage Project), Series 2017 issued by Lessee in the aggregate principal amount
not to exceed $12,000,000 to the fmance the construction of the Parking Deck(the "Bond Indebtedness")], or(II)
Lessor's payment to Lessee of an amount equal to the following(a)the amount required to call the then outstanding
Bond Indebtedness for redemption or otherwise pay the Bond Indebtedness pursuant to the Bond Resolution adopted
by the Lessee on June 21, 2017(the"Bond Resolution")at the time of such payoff(which will equal the sum of the
principal of,premium, if any, and accrued interest on the then outstanding Bond Indebtedness,together with all fees,
charges and expenses due and payable under the Bond Resolution, necessary to call or otherwise pay or defease the
outstanding Bond Indebtedness in full), plus (b) the present value (calculated using an interest rate equal to the
effective total interest cost of the Bond Indebtedness) of the average revenue which was received by Lessee during
the last two years of Lessee's operation of the Parking Deck("Bond Redemption Payment"). Upon the expiration of
the Term, (A)this Lease shall immediately terminate and be of no further force and effect,and(B)any ownership or
other interest held by Lessee in and to the Premises, Parking Deck or any other Improvements located on the
Premises, together with all equipment, personal property and fixtures located on the Premises, shall be immediately
assigned or otherwise transferred to Lessor. Lessee agrees to execute such additional documentation as necessary to
cause the assignment or transfer of the foregoing,including a bill of sale in form reasonably satisfactory to Lessor.
In the event of a default under this Lease or the Parking Deck Agreement, which default would allow for an early
termination of this Lease by Lessor, Lessor shall be estopped from terminating the Lease until the Bond Redemption
Payment has been made to Lessee.
5.
HOLDING OVER
Lessee shall not use or remain in possession of the Premises after the termination of this Lease.Any holding
over or continued use and/or occupancy of the Premises by Lessee after the expiration or any termination of the
Term of this Lease, without consent from Lessor, shall not constitute a Tenancy-At-Will in Lessee, but Lessee shall
be a Tenant-At-Sufferance,subject to the provisions of Paragraph 4 of this Lease.
6.
INSPECTION AND TITLE
Lessee hereby acknowledges that it has fully inspected the Premises and that the Premises and title to the
Premises is accepted and is in satisfactory and a suitable condition for the use intended by Lessee as hereinabove
provided for in this Lease.
7.
NO JOINT VENTURE
Nothing contained in this Lease shall make, or shall be construed to make, Lessor and Lessee partners in,
of, or joint venturers with each other, nor shall anything contained in this Lease render, or shall be construed to
render,either Lessor or Lessee liable to a third party for the debts or obligations of the other.
8.
IMPROVEMENTS
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Title to the Improvements shall vest in Lessee until the end of the Term, unless sooner terminated
pursuant to the terms of this Lease.Any and all Improvements,erections or additions constructed on the Premises by
Lessee, shall remain on the Premises through the end of the Term and shall be conveyed to Lessor at the expiration
of the Term. In the event Lessee removes from the Premises any equipment, temporary improvements or other
personal property which is used in the operation of the Parking Deck, Lessee shall promptly replace such property
with an item of similar quality and function. Lessee covenants and agrees to convey all of Lessee's right, title and
interests, free and clear of all liens and security interests, and surrender possession of the Premises and
Improvements (together with all personal property and equipment used at the Premises in connection with the
operation of the Parking Deck), at the expiration of the Term, or at such date of earlier termination pursuant to the
provisions of this Lease. At the expiration of the Term, Lessee shall execute such additional documentation as
necessary to cause the conveyance of the foregoing.
Throughout the Term, Lessee shall operate the Parking Deck in a manner consistent with the terms of the Parking
Deck Agreement.
9.
INDEMNIFICATION AND HOLD HARMLESS
9.1 In consideration of the benefits to be derived herefrom, Lessee shall be responsible to the Lessor
during the Term of this Lease for all injury or damage of any kind resulting from any negligent act or omission or
breach, failure or other default regarding the occupancy of the Premises by the Lessee, or any of its subcontractors,
its agents, employees or others working at the direction of Lessee or on its behalf, regardless of who may be the
owner of the property. The Lessee is responsible for insuring its tools, equipment, fixtures, trade fixtures and
personal property and Lessor shall not be liable for any loss or damage to such tools, equipment, fixtures and
personal property.
9.2 To the extent allowed by law, Lessee hereby agrees to indemnify and hold harmless the Lessor, and
all of its respective officers, members, employees, directors and agents (hereinafter collectively referred to as the
"Indemnitees") from and against any and all claims, demands, liabilities, losses, costs or expenses for any loss
including but not limited to bodily injury (including death), personal injury, property damage, expenses, and
attorneys' fees, arising out of or resulting from the performance of this Lease due to liability to a third party or
parties, or due to any act or omission on the part of the Lessee, its agents, employees or others working at the
direction of Lessee or on its behalf, or due to any breach of this Lease by the Lessee, or due to the application or
violation of any pertinent Federal, State or local law, rule or regulation. This indemnification extends to the
successors and assigns of the Lessee. This indemnification obligation survives the termination of the Lease and the
dissolution or,to the extent allowed by law, the bankruptcy of the Lessee. If and to the extent such damage or loss
(including costs and expenses) as covered by this indemnification is paid by the State Tort Claims Trust Fund, the
State Authority Liability Trust Fund,the State Employee Broad Form Liability Fund,the State Insurance and Hazard
Reserve Fund, and other self-insured funds (all such funds hereinafter collectively referred to as the "Funds")
established and maintained by the State of Georgia Department of Administrative Services the Lessee agrees to
immediately reimburse the Funds for such monies paid out by the Funds.
9.3 This indemnification does not extend to claims, injuries or damages due to the sole negligence or
willful misconduct of Lessor.
9.4 This indemnification does not extend beyond the scope of this Lease and the work undertaken
thereunder. Nor does this indemnification extend to claims for losses or injuries or damages incurred directly by the
Indemnitees due to breach or default by the Indemnitees under the terms and conditions of this Lease.
9.5 In the event of litigation, any settlement on behalf of the Indemnitees must be expressly approved by
the Office of the Attorney General of the State of Georgia.
10.
INSURANCE
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39261384.6
A
Lessee shall maintain or cause to be maintained the insurance policies required by and in accordance with the
Parking Deck Agreement.
11.
UTILITIES
At its sole cost and expense,Lessor shall cause to be furnished and shall pay for all water,gas, light,power,
sanitation (sewerage or otherwise), garbage pick-up and disposal, for the Parking Deck. Lessee shall pay for
telephone and other services required for Lessee's use of the Premises.
12.
TAXES AND ASSESSMENTS
12.1 Lessee covenants and agrees, during its use and/or occupancy of the Premises, to pay or cause to
be paid,to the public officer charged with collection thereof and before any of the same shall become delinquent and
shall indemnify, protect, save and hold harmless Lessor from the payment of(a) any and all taxes, assessments,
license fees, excises, imposts, fees and charges of every sort, nature and kind, hereinafter collectively referred to as
"impositions", which during Lessee's use and/or occupancy of the Premises, may be assessed, levied, charged or
imposed against or with respect to the Premises, including, but not limited to, the building, fixtures, equipment and
personal property, if any there be, located therein or thereon; and (b) any impositions assessed, levied, charged or
imposed on or with respect to the conduct of Lessee's business in or on the Premises.
12.2 Nothing herein shall obligate or require the payment of any imposition by Lessee, unless such
obligation or requirement is provided by law. Lessee may contest the validity, legality or amount of any imposition
in the manner provided by law after posting of security with (and acceptable to) Lessor in an amount equal to the
amount of the imposition claimed to be due. Within ten (10) days after the payment of Lessee of any imposition,
Lessee shall furnish Lessor with a copy of said receipt evidencing such payment.
13.
DESTRUCTION OF OR DAMAGE TO PROPERTY
If the Parking Deck or any part thereof is damaged or destroyed by casualty, Lessor and Lessee shall
consult with each other regarding the restoration of the Parking Deck. In the event that Lessee elects not to restore
the Parking Deck, Lessee shall deliver (i) any insurance proceeds (together with the deductible) available for the
restoration of the Parking Deck or(ii) in the event Lessee is self-insuring the Parking Deck in accordance with the
Parking Deck Agreement, all proceeds from such self-insurance, after satisfying the then outstanding Bond
Indebtedness, to Lessor and this Lease shall be terminated. In no event shall Lessee be obligated to restore any
personal property which was paid for by Lessor.
14.
REPAIR
Each of Lessor and Lessee shall have the maintenance, repair and replacement obligations set forth in the
Parking Deck Agreement.
15.
HAZARDOUS SUBSTANCES
15.1 Lessee shall not bring, deposit, or allow to be brought or deposited, in or upon the Premises any
pollutant or harmful substance, except for substances ordinarily used in the care and maintenance of the Premises
and in compliance with all other applicable provisions of this Lease.
15.2 Lessee warrants that it will not knowingly allow any of the following to occur on the Premises,
regardless of cause: (A)any generation,treatment,recycling,storage or disposal of any hazardous substance;(B)any
underground storage tank, surface impoundment, lagoon or other containment facility for the temporary or
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39261384.6
permanent storage, treatment or disposal of hazardous substances; (C) any landfill or solid waste disposal area; (D)
any asbestos-containing material as defined by the Toxic Substances Control Act; (E) any polychlorinated biphenyl
(PCB) used in hydraulic oils, electric transformers or other equipment; or (F) any release or threatened release of
hazardous substance to the environment in forms or quantity requiring remedial action under environmental laws. In
addition, Lessee warrants that it will not allow any violations of environmental laws on the Premises, regardless of
cause. Lessee's obligation in no way extends to any environmental condition of the Premises existing prior to
Lessee's possession.
16.
INSPECTION
For the purpose of inspecting the Premises,Lessee shall permit Lessor at reasonable times to enter in and on
the Premises and the Improvements.
17.
TRANSFER ASSIGNMENT AND SUBLETTING
Lessee shall not transfer or assign (whether by instrument or operation of law or, if applicable, by
withdrawal, sale, gift, exchange, change in partnership ownership or membership, change in stock ownership,
merger, consolidation, dissolution or reorganization of any type) this Lease or any right or privilege of Lessee
hereunder without the prior written consent, in Lessor's sole discretion, of Lessor. Lessee shall not sublet the
Premises or any Improvements built thereon or part thereof, or any right or privilege appurtenant thereto,nor permit
nor suffer any party other than Lessee to use or occupy the Premises or any portion thereof without the prior written
consent, in Lessor's sole discretion, of the Lessor. Any transfer, assignment or subletting without the prior written
consent of Lessor shall be void ab initio and shall at the option of Lessor terminate this Lease. Lessor's consent to a
transfer, assignment or subletting, or to any use or occupancy by a party other than Lessee, shall not invalidate or
constitute a waiver of this provision, and each subsequent transfer, assignment and subletting, and each subsequent
use and occupancy by a party other than Lessee shall likewise be made only with the prior written consent of Lessor.
Provided,however, Lessee shall have the right to transfer and assign this Lease at any time to Augusta, Georgia
(the "City") and the City shall assume all of the rights and obligations of Lessee hereunder. The City shall execute
such additional documentation evidencing the assumption as Lessor may reasonably require. Following the
assumption by the City of the obligations of Lessee under this Lease, the current Lessee shall be released from any
and all liabilities, obligations,payments or other responsibilities arising under this Lease and from and after the date
of such assignment to the City,and the City shall,for all intents and purposes be deemed a party to this Lease.
During the Term, Lessee shall have the right to enter into parking agreements with third parties in connection
with its operation of the Premises, but only to the extent that such agreements are terminable on or prior to the
expiration of this Lease.
Lessor and Lessee agree and acknowledge that during the term of the Lease, Lessor shall not transfer the
underlying fee interest in the Property to any individual or entity without the advance written consent of Lessee;
provided, however, Lessor may transfer the underlying fee interest in the Property to a state or the United States or
any agency or instrumentality thereof (the "Federal Government") without the prior written consent of Lessee.
Notwithstanding the foregoing,the parties acknowledge that the transfer of the underlying fee interest in the Property
to the federal government may affect the tax-exempt status of the Bond Indebtedness and prior to any such transfer to
the Federal Government, Lessor shall obtain an unqualified tax opinion from a nationally recognized bond attorney,
acceptable to all parties, that the transfer does not adversely impact or jeopardize the exclusion of interest on the
Bond Indebtedness from gross income for federal income tax purposes.
18.
NOTICES
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39261384.6
All notices and other communications authorized or required hereunder shall be in writing and shall be
given by (i) personal or hand delivery, (ii) by mailing the same by certified or registered mail, return receipt
requested,postage prepaid, (iii)by nationally recognized overnight courier service or(iv) by facsimile transmission
or electronic mail, and will be deemed to have been given either at the time of personal or hand delivery, or, in the
case of certified or registered mail or expedited delivery service, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of facsimile transmission or electronic mail, as of the date
of the facsimile transmission or electronic mail (or next business day if transmitted on a day other than a business
day) provided that an original of such facsimile or electronic mail is also sent to the intended addressee by means
described in clauses(i), (ii)or(iii)above. If intended for Lessor,the same shall be sent to the address hereinafter set
forth, or such other address as Lessor may hereafter designate by notice to Lessee, and if intended for Lessee, the
same shall be sent to Lessee at the address hereinafter set forth, or such other address or addresses as Lessee may
hereafter designate by notice to Lessor.
If to Lessor:
Executive Director
47 Trinity Avenue
Atlanta,GA 30334
Email: Calvin.Rhodes@gta.ga.gov
With a copy to:
Office of General Counsel
47 Trinity Avenue
Atlanta,GA 30334
Email: Jim.Thomas@gta.ga.gov
If to Lessee:
19.
TIME IS OF THE ESSENCE
All time limits stated herein are of the essence of this Lease.
20.
NON-WAIVER
No failure of Lessor to exercise any right or power given to Lessor under this Lease, or to insist upon strict
compliance by Lessee with the provisions of this Lease, and no custom or practice of Lessor or Lessee at variance
with the terms and conditions of this Lease, shall constitute a waiver of Lessor's right to demand exact and strict
compliance by Lessee with the terms and conditions of this Lease.
21.
RIGHTS CUMULATIVE
All rights,powers and privileges conferred by this Lease upon Lessor and Lessee shall be cumulative of,but
not restricted to,those given by law.
22.
BINDING EFFECT
Each of the terms and conditions of this Lease shall apply, extend to, be binding upon, and inure to the
benefit or detriment of the parties hereto, to the successors and assigns of Lessor, and to the extent that Lessor has
consented to a transfer or assignment of this Lease (if such consent is required) to the successors and assigns of
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39261384.6
Lessee, and to any leasehold mortgagee and its successors and assigns. Subject to the foregoing, whenever a
reference to the parties hereto is made, such reference shall be deemed to include the successors and assigns of said
party,the same as if in each case expressed.
23.
INTERPRETATION
Should any provision of this Lease require judicial interpretation, it is agreed and stipulated by and between
the parties that the court interpreting or construing the same shall not apply the presumption that the provisions
hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to
be construed more strictly against the party who prepared the same.
24.
GEORGIA AGREEMENT
This Lease shall be governed by, construed under,performed and enforced in accordance with the laws of
the State of Georgia. Any action arising out of the provisions of this Lease shall be brought in the Superior Court of
Fulton County, Georgia.
25.
NO THIRD PARTY BENEFICIARY
Nothing in this Lease,whether express or implied, is intended to confer upon any other party other than the
parties hereto and their respective successors and assigns, any right or interest whatsoever. No party other than the
parties hereto is entitled to rely in any way upon the warranties, representations, obligations, indemnities or
limitations of liability whatsoever in this Lease.
26.
SEVERABILITY
If any provision of this Lease, or any portion thereof, should be ruled void, invalid, unenforceable or
contrary to public policy by any court of competent jurisdiction,then any remaining portion of such provision and all
other provisions of this Lease shall survive and be applied, and any invalid or unenforceable portion shall be
construed or reformed to preserve as much of the original words,terms, purpose and intent as shall be permitted by
law.
27.
ENTIRE AGREEMENT
This Lease constitutes the entire Lease between the parties. This Lease supersedes all prior negotiations,
discussions, statements and agreements between Lessor and Lessee with respect to the Premises and Lessee's use and
occupancy thereof.No member, officer, employee or agent of Lessor or Lessee has authority to make, or has made,
any statement, agreement, representation or contemporaneous agreement, oral or written, in connection herewith
amending, supplementing, modifying, adding to, deleting from, or changing the terms and conditions of this Lease.
No modification of or amendment to this Lease shall be binding on either party hereto unless such modification or
amendment shall be properly authorized, in writing, properly signed by both Lessor and Lessee and incorporated in
and by reference made a part hereof.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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39261384.6
IN WITNESS WHEREOF,the parties,have caused these presents to be signed, sealed and delivered all as
of the date hereof
LESSOR:
Georgia Technology Authority
By:
Name:
Title:
LESSEE:
Urban R- - elo•;ii e► gency of • gusta
fri A
By:
- ,,I6 Name:Bob Young ir
J� Title: Chaunuan
IN WITNESS WHEREOF,the parties,have caused these presents to be signed,sealed and delivered all as
of the cint.e hereof'
LESSOR:
Georgia Technology Authority
Name: Calvin Rhodes
Titie: Executive Director
LESSEE:
Urban development Agency orAugustn
l'14, I,/
Name:Bob
By.
Young -/5--
Title!Chairman I J
EXHIBIT "A"
Survey
9
39261384.6
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