RES 2017-45 Adopted RESOLUTION NO. 2017-45
A RESOLUTION AUTHORIZING THE CITY TO ENTER INTO A PARKING
OPERATING AGREEMENT WITH ACKERMAN GREENSTONE NORTH AUGUSTA,
LLC (THE "HOTEL DEVELOPER") AND THE NORT1I AUGUSTA PUBLIC
FACILITIES CORPORATION (THE "CORPORATION"); AUTHORIZING THE CITY
TO ENTER INTO A JOINDER AGREEMENT TO A MASTER PARKING FACILITIES
OPERATING AND EASEMENT AGREEMENT WITH THE HOTEL DEVELOPER,
GREENSTONE HAMMONDS FERRY, LLC, AND THE CORPORATION; AND OTHER
MATTERS RELATED THERETO
WHEREAS, pursuant to the Master Development Agreement dated March
15, 2017 (the "Master Development Agreement"), by and among the City of North Augusta,
South Carolina (the "City"), GreenJackets Baseball, LLC, the Hotel Developer and
Greenstone Hammond's Ferry, LLC ("Greenstone"), entered into by such parties for the
development of Project Jackson, the City and Greenstone, as master developer, have certain
responsibilities related to parking facilities within such development and in furtherance of
such responsibilities the City and Greenstone entered into a Master Parking Facilities
Operating and Easement Agreement dated as of April 25, 2017, by and between the City and
Greenstone (the"Master Parking Agreement"); and
WHEREAS, the Corporation, the City and Greenstone entered into a Master
Parking Facilities Operating and Easement Agreement Joinder dated as of April 25, 2017,
pursuant to which the Corporation joined the Master Parking Agreement as a party; and
WHEREAS, to provide further detail regarding the parking arrangements
with respect to the Hotel Deck (as defined in the Master Development Agreement), the City
intends to enter into (i) a Parking Operating Agreement among the North Augusta Public
Facilities Corporation (the "Corporation"), the City and the Hotel Developer (the "Parking
Operating Agreement"), and (ii) a Joinder Agreement to Master Parking Facilities Operating
and Easement Agreement among the Corporation, the City, the Hotel Developer and
Greenstone (the "Joinder"), pursuant to which the Hotel Developer will become a party to
the Master Parking Agreement; and
WHEREAS, the City Council has received and reviewed (i) the Parking
Operating Agreement, which is attached hereto, marked Exhibit "A" and incorporated by
reference, and (ii) the Joinder, which is attached hereto, marked as Exhibit "B" and
incorporated by reference; and
WHEREAS, pursuant to the requirements of the Master Development
Agreement, the Mayor and the City Administrator have reviewed the Parking Operating
Agreement specifically in relation to any terms set forth in Exhibit F attached to the Master
Development Agreement and have deteiniined that any deviations from details and material
terms as set forth in such Exhibit F are satisfactory and they recommend the approval of any
such deviations; and
WHEREAS, the City has determined that the Parking Operating Agreement
will allow the City to fulfill obligations under the terms of the Master Development
Agreement and the Master Parking Agreement and that it is in the best interest of the City to
enter into the Parking Operating Agreement.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of
the City of North Augusta, in meeting duly assembled and by the authority thereof, that:
1. The City approves the Parking Operating Agreement and the Joinder.
2. The Parking Operating Agreement is a "Parking Deck Agreement" as that term is
defined in the Master Development Agreement and, except as specifically
provided therein, is consistent with the details and material terms set forth in
Exhibit F attached to the Master Development Agreement, but it is specifically
acknowledged and confirmed by this resolution that any deviations from such
details and material terms have been reviewed and approved by the Mayor and
the City Administrator.
3. The City Administrator and Mayor are each hereby authorized to (a) make such
modifications to the Parking Operating Agreement and the Joinder as either or
both of them shall deem necessary or prudent, so long as the substance of such
documents remains consistent with the forms presented at this meeting, and (b)
execute the Parking Operating Agreement and the Joinder on behalf of the City.
4. The City Administrator and Mayor are each hereby authorized to approve,
execute and deliver (or cause to be duly executed and delivered) such further
documents, agreements or instruments and do or cause to be done such further
acts as either or both of them may deem, upon the advice of counsel, to be
reasonably necessary or proper to carry out more effectively the provisions and
purposes of this resolution, the Parking Operating Agreement and the Joinder.
DONE, RATIFIED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE
CITY OF NORTH AUGUSTA, SOUTH CAROLINA, ON THIS THE 13TH DAY OF NOVEMBER, 2017.
//t
Robert A. Pet it, Mayor
ATTEST:
Donna B. Young, C Y
Exhibit "A"
Copy of Parking Operating Agreement
PARKING OPERATING AGREEMENT
THIS PARKING OPERATING AGREEMENT ("Agreement") is made and entered into
as of the day of November, 2017, by and between ACKERMAN GREENSTONE NORTH
AUGUSTA, LLC, a Georgia limited liability company (the "Hotel Developer"), THE CITY OF
NORTH AUGUSTA, SOUTH CAROLINA (the "City") and NORTH AUGUSTA PUBLIC
FACILITIES CORPORATION, a South Carolina non-profit corporation(the "Corporation").
Recitals
WHEREAS, the City and the Corporation own or, upon completion of development and
construction, will own, certain structured parking facilities known as the "Hotel Deck" as
defined in that certain Master Development Agreement by and among the City, GreenJackets
Baseball LLC, a Georgia limited liability company ("GreenJackets"), Greenstone Hammonds
Ferry, LLC, a South Carolina limited liability company (the "Master Developer") and the Hotel
Developer dated March 15, 2017 (collectively the "Financed Parking Facilities");
WHEREAS, the City and the Master Developer have entered into that certain Master
Parking Facilities Operating and Easement Agreement dated as of April 25, 2017, and recorded
at Book RB 4662, Page 837, Aiken County, South Carolina records, governing the use and
operation of the Financed Parking Facilities and the Stadium Deck as defined therein (the
"Master Parking Agreement");
WHEREAS, the City, the Corporation and the Master Developer entered into that certain
Master Parking Facilities Operating and Easement Agreement Joinder dated as of April 25, 2017,
and recorded at Book RB 4662, Page 1028, Aiken County, South Carolina records, for the
purposes set forth therein;
WHEREAS, on or about this date, the City is conveying to Hotel Developer the real
property described on Exhibit "A" attached hereto upon which Hotel Developer will construct
the Hotel/Convention Center(the"Hotel Parcel");
WHEREAS, on or about this date, the City, the Corporation and the Hotel Developer
have entered into that certain Joinder Agreement to Master Parking Facilities Operating and
Easement Agreement;
WHEREAS, the City, the Corporation and the Hotel Developer are entering into this
Agreement regarding the use, operation, care and maintenance of the Hotel Deck pursuant to
Section 3.2(a) of the Master Parking Agreement.
Statement of Agreement
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Hotel Developer, the City and the Corporation hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the meanings
given below:
Exhibit A
Page 1
"Agreement" means this Parking Operating Agreement, including all exhibits
hereto, as amended, restated, replaced, modified or supplemented from time to time.
"Applicable Laws" means any laws, ordinances, rules, or regulations of any
nature or kind which would apply to, govern or limit the Hotel Deck or the use thereof.
"Dedicated Parking Spaces" means 280 parking spaces for the Hotel (subject to
Section 4 of this Agreement), all located in the Hotel Deck as shown on Exhibit"C".
"Hotel/Convention Center" shall mean that certain hotel and convention center
to be constructed on the Hotel Parcel.
"Hotel Deck" shall mean that certain parking deck, which contains 432 parking
spaces, more or less, to be located on the parcel described on Exhibit"B".
"Mortgage" means (a) any encumbrance of the Hotel Parcel as security for any
indebtedness or other obligation of Hotel Developer or its successors and assigns, whether by
mortgage, deed of trust, sale/leaseback, pledge, financing statement, security agreement, or other
security instrument, and (b) any encumbrance of the Hotel Deck as security for any indebtedness
or other obligation of the owner thereof or its successors and assigns, whether by mortgage, deed
of trust, sale/leaseback, pledge, financing statement, security agreement, or other security
instrument.
"Mortgagee" means the holder of any Mortgage and the indebtedness or other
obligation secured thereby, whether the initial holder thereof or the heirs, legal representatives,
successors, transferees and assigns of such initial holder.
"Operating Expenses" means all commercially reasonable out-of-pocket costs
and expenses paid or incurred by the Corporation, the City or Hotel Developer, as applicable
(including such costs and expenses reimbursable by the Corporation, the City or Hotel
Developer, as applicable to any operator(s) of the Hotel Deck) in connection with managing,
operating, maintaining and repairing the Hotel Deck, computed in accordance with generally
accepted accounting principles applied on a consistent basis. Operating Expenses include, by
way of illustration, but are not limited to: (a) costs of maintaining and repairing the Hotel Deck;
(b) costs of insuring the Hotel Deck and all operations conducted therein with such policies,
coverages and companies and in such limits as may be selected by the City, the Corporation or
Hotel Developer, as applicable; (c) Taxes; (d) costs of providing janitorial service to, and
removing trash from, the Hotel Deck; (e) flood or storm cleanup costs; (f) costs for utility
services furnished to the Hotel Deck; (g) costs for police details and other security services at the
Hotel Deck; (h) costs of restriping the Hotel Deck; (i) costs of licenses, permits and inspection
fees with respect to the Hotel Deck; (j) legal, accounting, inspection and consulting fees payable
with respect to the Hotel Deck; (k) wages, salaries and benefits of personnel employed at or
directly related to the Hotel Deck, to the extent reasonably allocable to the Hotel Deck; (I) the
amount of any insurance deductibles paid in connection with an insured loss to the Hotel Deck;
(m) fees and expenses paid to Hotel Developer or a third party management company to manage
the Hotel Deck or any portion thereof, if applicable; and (n) costs of capital repairs and
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Exhibit A
Page 2
replacements made to the Hotel Deck, amortized over their expected useful life based upon and
including a market rate of interest.
"Ownership Costs" means all costs of ownership of the Hotel Deck and include,
by way of illustration, but are not limited to: (i) the costs of designing and constructing the Hotel
Deck (which are being paid by the City pursuant to that certain Owner-Developer Agreement
(Lump Sum Agreement) of even date herewith between the City and Hotel Developer); (ii)
interest on debt or amortization payments on any mortgage/deed of trust, or rent on any ground
lease or other underlying lease; (iii) costs for which the City or the Corporation, as applicable, is
reimbursed or has a right to reimbursement (either by an insurer, condemnor, or other person or
entity); (iv) if paid by the City or the Corporation, costs for which the City or the Corporation, as
applicable, is reimbursed or has a right to reimbursement under warranties provided to the City
or the Corporation, as applicable, by contractors who have warranty obligations; (v) depreciation
of the Hotel Deck; (vi) costs (including attorneys' fees and costs)related to any sale, financing or
refinancing of the Hotel Deck or incurred in connection with negotiations or disputes with
purchasers, prospective purchasers, lenders and prospective lenders; (vii) capital expenditures,
except to the extent of the amortized portion of costs of capital repairs and replacements included
in the definition of Operating Expenses; (viii) federal and state taxes on income, death, estate or
inheritance; or franchise taxes; (ix) after initial construction, the costs to bring the Hotel Deck
into full compliance with all federal, state or local legal requirements, including the federal
Americans with Disabilities Act; (x) subject to any warranty claims, the cost of curing any
construction defects in the Hotel Deck; (xi) insurance deductibles that exceed commercially
reasonable deductibles; (xii) costs incurred due to the uninsured negligence or willful misconduct
of the City or the Corporation, as applicable, or the violation by the City or the Corporation, as
applicable, of any applicable legal requirements; (xiii) costs of renting equipment for which the
purchase cost (including any amortized portion of the purchase cost), if purchased, would not be
included in Operating Expenses; and (xiv) costs paid or incurred in connection with any
hazardous materials or hazardous substances present on or otherwise affecting the Hotel Deck as
of the date of the completion of the subject portion of the Hotel Deck, including the costs any
investigation or remediation thereof.
"Party" means each of Hotel Developer, the City and the Corporation. "Parties"
means all of Hotel Developer, the City and the Corporation, unless the context indicates
otherwise.
"Public Parking Rate Terms" means the rates and charges and terms set forth in
Exhibit"D", which sets forth applicable charges and potential periods of use for the Hotel Deck,
unless and until such terms are otherwise agreed to by the City and the Hotel Developer, which
Parties shall, on a reasonable basis, review such terms to determine whether any of them, as
agreed upon by both Parties, should be adjusted or modified.
"Retail/Restaurant Space" means any improvements constructed or developed
in "Ballpark Village" for the purpose of providing space for parties selling goods, materials,
products or services from the location (or by readily accessible inventory) to the general public
or distinct portions of the general public, or places offering meals, beverages and/or
entertainment or a dining experience, for all or only certain meals during the day, for the general
public or distinct portions of the general public.
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Exhibit A
Page 3
"Taxes" means all real estate taxes, service payments in lieu of taxes, and
assessments payable with respect to the Hotel Deck, including the land on which the Hotel Deck
are located.
2. Term. The term of this Agreement shall be 30 years commencing on the date of
this Agreement, subject to the following provisions of this Section 2, with two consecutive
renewal periods of 20 years, each, which renewals shall automatically be in force, subject only to
a meeting by the Parties hereto prior to any such automatic renewal, to assess and discuss on a
reasonable basis, the proper use of the Hotel Deck, with any necessary modifications to such use
to be made at that time, so long as Hotel Developer is not divested of any rights with respect to
the Hotel Deck. Thereafter, there shall only be renewal of this Agreement with the consent of
the City, which consent shall not be unreasonably withheld, conditioned or delayed, so long as
the Hotel Deck is still in use for parking for the Hotel Parcel.
3. Management of Hotel Deck.
3.1 Generally. The Hotel Deck shall be subject to the exclusive control and
management of the Hotel Developer subject to Applicable Laws. The Hotel Developer shall
manage and operate, or cause to be managed and operated, the Hotel Deck in a manner
consistent with the standards generally applicable to structured parking improvements located in
first class mixed use developments. The Hotel Developer's obligations with respect to the
management and operation of the Hotel Deck include, but are not limited to, the maintenance
and repair of the Hotel Deck, and Hotel Developer may in its sole discretion sub-contract out all
or any of such functions or duties of Hotel Developer to manage said Hotel Deck, as described
below, subject to the consent of the City, which consent shall not be unreasonably withheld. The
Hotel Developer may from time to time adopt and modify non-discriminatory rules and
regulations governing the use of the Hotel Deck, and the City and those using the Hotel Deck by
virtue of the rights granted pursuant to this Agreement shall be bound by such rules and
regulations so long as such rules and regulations are not inconsistent with this Agreement.
3.2 Fees. Without limiting the generality of Section 3.1, the fees to be charged
for parking spaces in the Hotel Deck during times or for parking spaces which are not already
allocated and designated in Exhibit "D", or are later allocated by Hotel Developer whether
hourly, monthly or otherwise, shall be determined by the City from time to time (but only with
notice to and the prior written consent of the Hotel Developer, which consent shall not be
unreasonably withheld); provided, that the hourly rates shall be competitive with the hourly rates
charged by comparable parking facilities in the area of the Hotel Deck. The "Public Parking
Rate Terms" set forth on Exhibit "D" are subject to review and modification at any time, upon
the consent of the City and Hotel Developer and, in any event, the City and Hotel Developer
must meet on a biennial basis, to discuss and potentially adjust the "Public Parking Rate Terms."
3.3 Payment to City. With respect to fees collected by Hotel Developer for
parking spaces in the Hotel Deck, Hotel Developer shall account for such fees in the monthly
statement provided under Section 5 of this Agreement and the City shall be paid:
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Exhibit A
Page 4
(a) 40% of the revenue generated from the 280 Dedicated Parking
Spaces and 70 Short-Term Parking Spaces in the Hotel Deck allocated to the Hotel Parcel
(subject to subsection(c) below);
(b) 100% of the revenue generated from the other parking spaces in
the Hotel Deck; and
(c) 100% of the revenue generated from Designated Parking Spaces
released pursuant to Section 4.
3.4 Rules and Regulations.
(a) 180 of the Dedicated Parking Spaces will have a separate
controlled access gate with access for Hotel Developer and its patrons, guests and invitees only.
(b) Only vehicles receiving a"car" or"passenger vehicle" classification
by the South Carolina Department of Motor Vehicles may use the Hotel Deck.
(c) No vehicle shall be parked in areas of the Hotel Deck other than in
the parking spaces designated for such vehicles. No vehicle shall block another vehicle or access
to another vehicle. No vehicle shall obstruct the flow of traffic or otherwise create a hazardous
condition.
(d) If any vehicle is parked in any portion of the Hotel Deck in violation of
this Agreement, Hotel Developer, without prior notice, may have the vehicle towed or booted
immediately. If a vehicle is towed or booted in accordance with this subparagraph, neither Hotel
Developer nor any officer or agent of Hotel Developer shall be liable to any person for any claim
of damage as a result of the towing or booting activity.
3.5 Validation System. The Hotel Developer shall work with the City in good
faith to establish a validation system for parking in the Hotel Deck by visitors to
Retail/Restaurant Space, under which the occupant of the Retail/Restaurant Space would pay all
or a portion of the parking fees charged for such visitors.
3.6 Card Readers. The Hotel Developer shall work with the City in good
faith in connection with the establishment by Hotel Developer of a compatible card reader
system or similar access and use system to permit controlled and monitored access to the Hotel
Deck by monthly parkers.
3.7 Third Party Management. Hotel Developer may, at Hotel Developer's
option and in Hotel Developer's sole discretion, engage a third party management company or
absolutely assign to another party its agency as manager, to manage and operate the Hotel Deck
or any portion thereof, which management arrangement may be accomplished through a
management agreement, an operating license, a lease, an assignment and assumption of rights, or
another document agreed to by the Hotel Developer and the third party management company;
provided that such management agreement, lease, license, assignment and assumption or other
document shall be subject and subordinate in all respects to this Agreement and the third party
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Exhibit A
Page 5
manager shall be subject to the consent of the City, which consent shall not be unreasonably
withheld.
3.8 Management Fee. The City shall pay Hotel Developer a management fee
equal to four percent (4%) of the gross revenues generated from the operation of the Hotel Deck
for the services set forth in this Agreement. Hotel Developer shall be entitled to retain such
management fee from payments to the City under Section 5.
4. Use of Dedicated Parking Spaces for City Events. Upon written request of the
City not more than one week prior to a "City Event" at the Stadium, if Hotel Developer does not
have a convention scheduled or has a convention scheduled for the Hotel/Convention Center that
will require less than 100 parking spaces, Hotel Developer (i) shall release 100 Dedicated
Parking Spaces if there is no convention scheduled, or (ii) shall release the number of excess
parking spaces not needed for the scheduled convention (depending on the size of the convention
in question) in the Hotel Deck to the City for use in connection with the City Events at the
Stadium. The exact location of such Dedicated Parking Spaces within the Hotel Deck shall be
agreed upon by Hotel Developer and the City in their respective, reasonable judgment. The City
shall be entitled to 100% of the revenue generated from Dedicated Parking Spaces released by
Hotel Developer pursuant to this Section 4. For purposes of this Section 4, a "City Event" shall
mean any event, activity or program held at the Stadium that is not a (i) GreenJackets baseball
game, (ii) GreenJackets event or (iii) other activity that is not otherwise related to the
administration or operation of GreenJacket's regular business at the Stadium.
5. Ownership Costs and Operating Expenses. The City shall be solely responsible
for the Ownership Costs and the Operating Expenses of the Hotel Deck in accordance with the
following provisions of this Section 5.
5.1 Ownership Costs. The City shall pay all Ownership Costs directly and
the Hotel Developer shall have no obligation to pay or advance Ownership Costs.
5.2 Monthly Payments of Operating Expenses. The City shall pay
Operating Expenses to Hotel Developer on a monthly basis as provided in this Section 5.2. Such
monthly payments shall, at the election of Hotel Developer, either be (a) based on monthly
statements of Operating Expenses to be submitted by the Hotel Developer to the City after the
end of each calendar month, setting forth in reasonable detail an accounting of the Operating
Expenses for the month, in which case such statements shall be due 30 days after submission, or
(b) based on the Hotel Developer's good faith estimate of Operating Expenses, in which case the
City shall pay 1/12th of the estimated Operating Expenses for the year on the first day of each
month during the year. Hotel Developer shall be entitled to retain such Operating Expenses from
payments to the City under Section 3.3.
5.3 Annual Statements. With reasonable promptness after the end of each
calendar year during the term of this Agreement, Hotel Developer shall submit to the City a
statement of the total Operating Expenses for such year, setting forth in reasonable detail an
accounting of the Operating Expenses for the year. Within 30 days after submission of such
statement, the payments by the City to Hotel Developer for Operating Expenses for the year shall
be reconciled, and payments or refunds made, on the basis of the annual statement.
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Exhibit A
Page 6
5.4 Audit Rights. The City shall have the right from time to time, on a
reasonable basis, to audit the books and records of Hotel Developer, and of any third party
management company, relating to the operation of the Hotel Deck. Such audit shall be carried
out only by the City or by an independent firm of certified public accountants engaged by them,
and shall be subject to Hotel Developer's and any third party management company's reasonable
audit procedures. No party conducting such an audit shall be compensated on a contingency or
other incentive basis. If any such audit establishes that Hotel Developer has misstated the
Operating Expenses, corrective entries shall be made on the basis of such audit, and a reconciling
payment shall be made promptly by Hotel Developer to the City. The cost of any audit
performed pursuant to this Section 5.4 shall be borne by the City, unless the audit establishes an
overstatement of Operating Expenses by more than 3%, in which event Hotel Developer shall
reimburse the City for the reasonable cost of the audit.
6. Default and Remedies.
6.1 Default Notices. At any time as of which there exists a default by Hotel
Developer in the due and punctual payment, performance or observance of any obligation of
Hotel Developer under this Agreement, the City may give Hotel Developer a written notice,
indicated as being a "Default Notice" under this Section 6.1, identifying such default and
specifying a period of time reasonable under the circumstances for the cure of such default;
provided that if the City has received written notice of the name and address of a Mortgagee of
the Hotel Parcel and/or the improvements thereto, then the City shall also give a copy of such
notice to such Mortgagee. At any time as of which there exists a default by the City in the due
and punctual payment, performance or observance of any obligation of the City under this
Agreement, Hotel Developer may give the City a written notice, indicated as being a "Default
Notice" under this Section 6.1, identifying such default and specifying a period of time
reasonable under the circumstances for the cure of such default; provided that if Hotel Developer
has received written notice of the name and address of a Mortgagee, then Hotel Developer shall
also give a copy of such notice to such Mortgagee. Any notice given in accordance with this
Section 6.1 is called a"Default Notice." The period of time for cure to be set forth in any Default
Notice shall be not shorter than such period of time as is reasonable in light of the nature of the
default and the time reasonably required to cure the default.
6.2 Enforcement. Each Party shall have the right to enforce this Agreement
in any manner provided by law or equity; provided that neither the City, the Corporation nor
Hotel Developer shall have any right to terminate this Agreement or any right granted pursuant
to this Agreement by reason of any default by or through Hotel Developer or the City. As the
remedy at law for the breach of any of the terms of this Agreement may be inadequate, each
enforcing Party shall have a right of temporary and permanent injunction, specific performance
and other equitable relief that may be granted in any proceeding brought to enforce any provision
hereof, without the necessity of proof of actual damage or inadequacy of any legal remedy.
Default under any of the terms of this Agreement which is not cured within the reasonable cure
period as specified in the applicable Default Notice shall give a non-defaulting Party a right of
action in any court of competent jurisdiction to compel compliance and/or to prevent the default,
and the expenses of such litigation shall be borne by the defaulting Party, provided such
proceeding confirms the alleged default. Expenses of litigation shall include reasonable
attorneys' fees and expenses incurred by the non-defaulting Party in enforcing this Agreement.
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Exhibit A
Page 7
6.3 Self-Help. Without limiting the provisions of Section 6.2, (a) should any
defaulting Party fail to remedy any default identified in a Default Notice within the reasonable
cure period specified in such Default Notice, or (b) should any default under this Agreement
exist which (i) constitutes or creates an immediate threat to health or safety, (ii) constitutes or
creates an immediate threat of damage to or destruction of property or (iii) is of the same nature
as defaults or violations with respect to which two or more Default Notices have been given
within the immediately preceding 24 months, then, in any such event, the non-defaulting Party
shall have the right, but not the obligation, to take such steps as such non-defaulting Party may
elect to cure, or cause to be cured, such default or violation. If a non-defaulting Party cures, or
causes to be cured, a default as provided above in this Section 6.3, then there shall be due and
payable by the defaulting Party to the non-defaulting Party upon demand the amount of the
reasonable costs and expenses incurred by the non-defaulting Party in pursuing such cure, plus
interest thereon from the date of demand at the rate of 15%per annum, payable on a daily.
7. Notices. Any notice to be given under this Agreement shall be in writing, shall be
addressed to the Party to be notified at the address set forth below or at such other address as
each Party may designate for itself from time to time by notice hereunder, and shall be deemed to
have been given upon the earlier of (a) the next business day after delivery to a regularly
scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement,
satisfactory with such carrier, made for the payment of such fees, or (b) receipt of notice given
by e-mail or personal delivery(provided that any e-mail received after 5:00 p.m. on any day shall
be deemed to be received on the next business day):
If to the City: City of North Augusta, South Carolina
Municipal Center
100 Georgia Avenue
North Augusta, South Carolina 29841
Attn: City Administrator
If to the Corporation: North Augusta Public Facilities Corporation
Municipal Center
100 Georgia Avenue
North Augusta, South Carolina 29841
Attn: President
If to Hotel
Developer: Ackerman Greenstone North Augusta, LLC
do Ackerman& Co.
10 Glenlake Parkway
South Tower, Suite 1000
Atlanta, GA 30328
Attn: President
and:
c/o Greenstone Enterprises, Inc.
3301 Windy Ridge Parkway, Suite 320
Atlanta, GA 30339
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Exhibit A
Page 8
Attn: Christian B. Schoen
8. No Partnership. This Agreement shall not be construed to create a partnership or
joint venture between the Parties.
9. Governing Law. The internal laws of the State of South Carolina shall govern as
to the interpretation, validity and effect of this Agreement, without regard to such state's conflict
of law principles.
80' Jurisdiction. The Parties submit to jurisdiction in the State of South Carolina and
agree that any judicial proceeding brought by or against a Party with respect to this Agreement
shall be brought in any state or federal court located in Aiken County, South Carolina, which
shall have exclusive jurisdiction of controversies arisi under this Agreement.
18' Severability. lfuny provision ofddo Agreement or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or circumstances other than those to
which it is invalid or unenforceable, shall not be affected thereby, and shall be valid and
enforceable to the fullest extent permitted by law, but only if and to the extent such enforcement
would not materially and adversely frustrate the Parties' essential objectives as expressed herein.
82' Diligent Performance. With respect to any duty or obligation imposed on a Party
by this Agreement, unless a time limit is specified for the performance of such duty or
obligation, it shall be the duty or obligation of such Party to commence and perform the same in
a diligent and workmanlike manner and to complete the performance of such duty or obligation
as soon as reasonably practicable after commencement of performance.
13. Entirety of Agreement. This Agreement, together with the Master Parking
Agreement, embodies the entire agreement and understanding of the Parties with respect to the
use, management and operation of the Hotel Deck, and supersede all prior agreements,
correspondence, arrangements and understandings relating thereto. If there is a conflict between
the terms of this Agreement and the terms of the Master Parking Agreement, the terms of this
Agreement shall control. This Agreement may be amended or modified only by a written
instrument signed by the City, the Corporation and Hotel Developer.
14. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors, successors in title and assigns.
15. Captions. The captions in this Agreement are included for purposes of
convenience only and shall not be considered a part of this Agreement or used in construing or
interpreting any provision hereof.
16. Exhibits. All exhibits to this Agreement are incorporated herein by reference and
made a part hereof to the same extent as if set out in full herein.
17. No Waiver. No waiver of any condition or covenant of this Agreement to be
satisfied or performed by a Party shall be deemed to imply or constitute a further waiver of the
same or any like condition or covenant, and nothing contained in this Agreement nor any act of a
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Exhibit A
Page 9
Party, except a written waiver signed by such Party, shall be construed to be a waiver of any
condition or covenant to be performed by the other Party.
18. Construction. No provisions of this Agreement shall be construed against a Party
by reason of such Party having drafted such provisions.
19. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original document.
20. Third Party Beneficiaries. This Agreement may be enforced only by the Parties,
their successors, successors in title and assigns. Except as set forth in the immediately preceding
sentence, there shall be no third party beneficiaries of this Agreement.
10
Exhibit A
Page 10
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
set forth above.
ACKERMAN GREENSTONE NORTH
AUGUSTA, LLC, a Georgia limited liability
company
By:
Name: Donald K. Miller
Title: Manager
CITY OF NORTH AUGUSTA, SOUTH
CAROLINA
By:
Name:
Title:
NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION, a South Carolina non-profit
corporation
By:
Name:
Title:
11
Exhibit A
Page 1 1
EXHIBIT "A"
Hotel Parcel
All that tract or parcel of land lying and being situate in the City of North Augusta, Aiken
County, South Carolina and being more particularly described as follows:
Commencing at a #5 rebar found at the intersection of the southern right of way (r/w) of
Railroad Avenue (66' r/w) and the eastern r/w of Esplanade Avenue (50' r/w), said point being
the POINT OF BEGINNING;
Thence along the southern r/w of Railroad Avenue South 69 degrees 52 minutes 06
seconds East for a distance of 307.88 feet to a #5 rebar found; thence South 20 degrees 07
minutes 54 seconds West for a distance of 231.97 feet to a #5 rebar found on the northern r/w of
Brissie Drive (unopened); thence along the northern r/w of Brissie Drive (62' nominal r/w)North
69 degrees 51 minutes 36 seconds West for a distance of 307.88 feet to a #5 rebar found on the
eastern r/w of Esplanade Avenue; thence along the eastern r/w of Esplanade Avenue North 20
degrees 07 minutes 54 seconds East for a distance of 231.93 feet to a #5 rebar found on the
southern r/w of Railroad Avenue, said point being the POINT OF BEGINNING,
Containing 1.64 Acres and is more fully shown on a plat prepared for Ackerman
Greenstone North Augusta, LLC by Cranston Engineering Group, P.C. dated June 6, 2017, last
revised 11/08/2017.
Exhibit A
Page 12
EXHIBIT -B"
Hotel Deck Parcel
All that piece, parcel or tract of land, together with all improvements t situate, lyi and
being in the City of North Augusta, County of Aiken, State of South Carolina and designated as
Parcel E & E2 and containing a combined total of 1.41 acres as shown on that certain Re-
subdivision Plat of Parcels B, C, E & K of Ballpark Village at Hammond's Ferry, now known as
Riverside Village, prepared for Greenstone Hammond's Ferry, LLC by John M. Bailey, S.C.
PLS No. 7399, of John M. Bailey & Associates, P.C., bearing P ject No. 15039, dated August
11, 2017, and last revised September 14, 2017, and recorded in the Aiken County Register of
Deeds Office on September 21, 2017, in Plat Book 60, Page 178; said plat is incorporated herein
by reference thereto, and made part and parcel hereof and should be refelTed to for a more
complete and accurate description as to the location, metes, bounds and courses of said Parcel E
& E2.
13
Exhibit A
Page 13
EXHIBIT"C"
Location of Dedicated Parking Spaces
The Hotel Developer shall have the right to designate the location of the 280 Dedicated Parking
Spaces subject to the City and the Corporation's reasonable approval of such designated location.
14
Exhibit A
Page 14
EXHIBIT "D"
PUBLIC PARKING RATE TERMS
HOTEL DECK
Standard Parking Rates
Parking Decks: Hourly—Decks 1st 2 hours @$2 +$1/hour; max$10/day; Monthly$50 non-reserved.
>Project Startup Phase(@6 month):charge only 6-10pm and Event periods+/-1 hour;2 hour
limit.
Reserved—Monthly @$35.
Retail/Restaurant Guests
a. 2 hours free with vendor validation;Standard Daily Rate charges otherwise apply.
b. Restaurant Valet (non-Event times) $2/space.
Retail/Restaurant Staff
Standard Daily Rates; monthly spaces available.
Hotel Guests (Hotel Deck)
180 space dedicated area. Standard Daily Rate+$2 (in/out privileges; $12 total);40%to City
Conference(Hotel Deck)
100 space dedicated area, except when released during Stadium events;Standard Daily Rate ($10);40%
to City.
When released during Stadium events; Standard Daily Rate ($10); 100%to City.
Exhibit A
Page 15
Exhibit "B"
Copy of Joinder
Cross Reference:
Book RB 4662,Page 837
Aiken County, South Carolina records.
JOINDER AGREEMENT
TO MASTER PARKING FACILITIES OPERATING
AND EASEMENT AGREEMENT
This Joinder Agreement to Master Parking Facilities Operating and Easement Agreement
("Agreement") is made and entered into as of the day of November, 2017, by and between
ACKERMAN GREENSTONE NORTH AUGUSTA, LLC, a Georgia limited liability company
(the "Hotel Developer"), GREENSTONE HAMMONDS FERRY, LLC, a South Carolina
limited liability company (the "Master Developer"), THE CITY OF NORTH AUGUSTA,
SOUTH CAROLINA (the "City") and NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION, a South Carolina non-profit corporation(the "Corporation").
WITNESSETH
WHEREAS, the City owns that certain parcel of real property described on Exhibit "A"
attached hereto (the "Hotel Deck Parcel")and is leasing such parcel to the Corporation pursuant
to that certain Base Lease Agreement dated May 16, 2017, between the City, as lessor, and the
Corporation, as lessee;
WHEREAS, the Corporation owns or, upon completion of development and construction,
will own, certain structured parking facilities known as the "Hotel Deck" as defined in that
certain Master Development Agreement by and among the City, GreenJackets Baseball LLC, a
Georgia limited liability company, the Master Developer and the Hotel Developer dated March
15, 2017 (collectively the "Financed Parking Facilities"), which Financed Parking Facilities will
be purchased by the City from the Corporation in installments pursuant to that certain Installment
Purchase and Use Agreement dated May 16, 2017, between the City and the Corporation;
WHEREAS, the City and the Master Developer have entered into that certain Master
Parking Facilities Operating and Easement Agreement dated as of April 25, 2017, and recorded
at Book RB 4662, Page 837, Aiken County, South Carolina records, governing the use and
operation of the Financed Parking Facilities and the Stadium Deck as defined therein (the
"Master Parking Agreement");
WHEREAS, the City, the Corporation and the Master Developer entered into that certain
Master Parking Facilities Operating and Easement Agreement Joinder dated as of April 25, 2017,
and recorded at Book RB 4662, Page 1028, Aiken County, South Carolina records, for the
purposes set forth therein;
WHEREAS, on or about this date, the City is conveying to Hotel Developer the real
property described on Exhibit "B" attached hereto upon which Hotel Developer will construct
Exhibit B
Page 1
the Hotel/Convention Center (the "Hotel Parcel"). The Hotel Parcel is a "Development Parcel"
under the Master Parking Agreement.
WHEREAS, the City, the Corporation, Master Developer and Hotel Developer are
entering into this Agreement pursuant to Section 4.6 of the Master Parking Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Hotel Developer, the Master Developer, the City and the Corporation
agree as follows:
1. Joinder. Hotel Developer joins in the Master Parking Agreement with respect to
the Hotel Parcel and assumes the obligations of Master Developer under the Master Parking
Agreement with respect to the Hotel Parcel. From and after the date of this Agreement, Hotel
Developer shall be subject to, and entitled to the benefit of, the Master Parking Agreement with
respect to the Hotel Parcel, and shall be substituted for Master Developer under the Master
Parking Agreement as the Master Parking Agreement relates to the Hotel Parcel. Master
Developer shall have no rights or obligations under the Master Parking Agreement with respect
to the Hotel Parcel accruing from and after the date of this Agreement.
2. Easements for Dedicated Parking Spaces. Master Developer allocates to Hotel
Developer, for the benefit of the Hotel Parcel, 280 Dedicated Parking Spaces in the Hotel Deck
as depicted on Exhibit B hereto. The City and the Corporation grant to Hotel Developer: (i) an
exclusive, perpetual easement, for the benefit of the Hotel Parcel, to use such Dedicated Parking
Spaces allocated by Master Developer to Hotel Developer, for parking by users of the Hotel
Parcel; and (ii) a non-exclusive, perpetual easement, for the benefit of the Hotel Parcel, in, on,
over and across portions of the Hotel Deck designed therefor for vehicular and pedestrian access
to and from such Dedicated Parking Spaces by those entitled to use such Dedicated Parking
Spaces. Such easements shall be subject to the terms and conditions set forth in Section 4.1 and
other applicable provisions of the Master Parking Agreement.
3. Easements for Short-Term Parking. The City and the Corporation grant to Hotel
Developer: (i) a non-exclusive, perpetual easement, for the benefit of the Hotel Parcel, to use 70
Short-Term Parking Spaces designated by the City pursuant to Section 4.3(a) of the Master
Parking Agreement for Short-Term Parking for Retail/Restaurant Space and parking for Hotel
staff on the Hotel Parcel; and (ii) a non-exclusive, perpetual easement, for the benefit of the
Hotel Parcel, in, on, over and across portions of the Hotel Deck designed therefor for vehicular
and pedestrian access to and from the Short-Term Parking Spaces by those entitled to use the
Short-Term Parking Spaces. Such easements shall be subject to the terms and conditions set
forth in Sections 4.3, 4.5 and 4.6 and other applicable provisions of the Master Parking
Agreement.
4. Easements for Management and Maintenance. The City and the Corporation
grant to Hotel Developer, for the benefit of the Hotel Parcel, a non-exclusive,perpetual easement
in, on, over and across the Hotel Deck for purposes of the Hotel Developer (or its third party
contractors) managing and operating the Hotel Deck and performing maintenance and repair of
the Hotel Deck, all as provided in the Parking Operating Agreement dated November , 2017,
-2-
Exhibit B
Page 2
among the Hotel Developer, the City and the Corporation (the "Hotel Deck Parking
Agreement"), as it may be amended, modified, restated, supplemented or extended from time to
time and any similar successor agreement.
5. Incorporation of Master Parking Agreement. The provisions of the Master
Parking Agreement, to the extent applicable to the Hotel Parcel, are incorporated herein by
reference; provided, however, that notwithstanding Section 4.1(c) of the Master Parking
Agreement to the contrary, Hotel Developer's share of Operating Expenses, if any, for the Hotel
Deck is set forth in the Hotel Deck Parking Agreement.
6. Notice Address. The notice address of Hotel Developer for purposes of Section 9
of the Master Parking Agreement shall be the following, or such other address as Hotel
Developer may designate for itself from time to time by notice given in accordance with Section
9 of the Master Parking Agreement:
Ackerman Greenstone North Augusta, LLC
c/o Ackerman& Co.
10 Glenlake Parkway
South Tower, Suite 1000
Atlanta, GA 30328
Attn: President
and:
c/o Greenstone Enterprises, Inc.
3301 Windy Ridge Parkway, Suite 320
Atlanta, GA 30339
Attn: Christian B. Schoen
7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and shall run with the
land.
8. Captions. The captions in this Agreement are included for purposes of
convenience only and shall not be considered a part of this Agreement or used in construing or
interpreting any provision hereof.
9. Exhibits. All exhibits to this Agreement are incorporated herein by reference and
made a part hereof, to the same extent as if set out in full herein.
10. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original document.
11. Defined Terms. All capitalized terms used in this Agreement which are defined
in the Master Parking Agreement and not otherwise defined in this Agreement shall have the
meanings given in the Master Parking Agreement.
-3-
Exhibit B
Page 3
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
set forth above.
WITNESSES: ACKERMAN GREENSTONE NORTH
AUGUSTA, LLC, a Georgia limited liability
company
By:
Name: Donald K. Miller
Title: Manager
STATE OF GEORGIA )
COUNTY OF )
I, the undersigned Notary Public for the State of Georgia, do hereby certify that Donald K.
Miller, the Manager of Ackerman Greenstone North Augusta, LLC, a Georgia limited liability
company, personally appeared before me this day and acknowledged the due execution of the
foregoing instrument.
Witness my hand and official seal this day of , 2017.
(SEAL)
Notary Public, State of Georgia
Notary Name Printed:
My Commission Expires:
[SIGNATURES CONTINUE ON NEXT PAGE]
-4-
Exhibit B
Page 4
WITNESSES: GREENSTONE HAMMONDS FERRY, LLC, a
South Carolina limited liability company
By:
Name: Christian B. Schoen
Title: Manager
STATE OF GEORGIA )
)
COUNTY OF )
I, the undersigned Notary Public for the State of Georgia, do hereby certify that Christian
B. Schoen, the Manager of Greenstone Hammonds Ferry, LLC, a South Carolina limited liability
company, personally appeared before me this day and acknowledged the due execution of the
foregoing instrument.
Witness my hand and official seal this day of , 2017.
(SEAL)
Notary Public, State of Georgia
Notary Name Printed:
My Commission Expires:
[SIGNATURES CONTINUE ON NEXT PAGE]
-5-
Exhibit B
Page 5
WITNESSES: CITY OF NORTH AUGUSTA, SOUTH
CAROLINA
By:
Name:
Title:
STATE OF SOUTH CAROLINA )
)
COUNTY OF AIKEN )
I, the undersigned Notary Public for the State of South Carolina, do hereby certify that
, the of City of North Augusta, South Carolina,
personally appeared before me this day and acknowledged the due execution of the foregoing
instrument.
Witness my hand and official seal this day of , 2017.
(SEAL)
Notary Public, State of South Carolina
Notary Name Printed:
My Commission Expires:
[SIGNATURES CONTINUE ON NEXT PAGE]
-6-
Exhibit B
Page 6
WITNESSES: NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION, a South Carolina non-profit
corporation
By:
Name:
Title:
STATE OF SOUTH CAROLINA )
)
COUNTY OF AIKEN )
I, the undersigned Notary Public for the State of South Carolina, do hereby certify that
, the of North Augusta Public
Facilities Corporation, personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this day of , 2017.
(SEAL)
Notary Public, State of South Carolina
Notary Name Printed:
My Commission Expires:
-7-
Exhibit B
Page 7
EXHIBIT "A"
Hotel Deck Parcel
All that piece, parcel or tract of land, together with all improvements thereon, situate, lying and
being in the City of North Augusta, County of Aiken, State of South Carolina and designated as
Parcel E &E2 and containing a combined total of 1.41 acres as shown on that certain Re-
subdivision Plat of Parcels B, C, E & K of Ballpark Village at Hammond's Ferry, now known as
Riverside Village,prepared for Greenstone Hammond's Ferry, LLC by John M. Bailey, S.C.
PLS No. 7399, of John M. Bailey&Associates, P.C., bearing Project No. 15039, dated August
11, 2017, and last revised September 14, 2017, and recorded in the Aiken County Register of
Deeds Office on September 21, 2017, in Plat Book 60, Page 178; said plat is incorporated herein
by reference thereto, and made part and parcel hereof, and should be referred to for a more
complete and accurate description as to the location, metes, bounds and courses of said Parcel E
&E2.
-8-
Exhibit B
Page 8
EXHIBIT "B"
Hotel Parcel
All that tract or parcel of land lying and being situate in the City of North Augusta, Aiken
County, South Carolina and being more particularly described as follows:
Commencing at a #5 rebar found at the intersection of the southern right of way (r/w) of
Railroad Avenue (66' r/w) and the eastern r/w of Esplanade Avenue (50' r/w), said point being
the POINT OF BEGINNING;
Thence along the southern r/w of Railroad Avenue South 69 degrees 52 minutes 06
seconds East for a distance of 307.88 feet to a #5 rebar found; thence South 20 degrees 07
minutes 54 seconds West for a distance of 231.97 feet to a #5 rebar found on the northern r/w of
Brissie Drive (unopened); thence along the northern r/w of Brissie Drive (62' nominal r/w)North
69 degrees 51 minutes 36 seconds West for a distance of 307.88 feet to a #5 rebar found on the
eastern r/w of Esplanade Avenue; thence along the eastern r/w of Esplanade Avenue North 20
degrees 07 minutes 54 seconds East for a distance of 231.93 feet to a #5 rebar found on the
southern r/w of Railroad Avenue, said point being the POINT OF BEGINNING,
Containing 1.64 Acres and is more fully shown on a plat prepared for Ackerman
Greenstone North Augusta, LLC by Cranston Engineering Group, P.C. dated June 6, 2017, last
revised 11/08/2017.
-9-
Exhibit B
Page 9
EXHIBIT "C"
Dedicated Parking Spaces
The Hotel Developer shall have the right to designate the location of the 280 Dedicated Parking
Spaces subject to the City and the Corporation's reasonable approval of such designated location.
-10-
Exhibit B
Page 10