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RES 2024-14 - First Amendment to Parking Op Agreement AdoptedRESOLUTION NO. 2024-14 A RESOLUTION AUTHORIZING THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA TO ENTER INTO A FIRST AMENDMENT TO PARKING OPERATING AGREEMENT AMONG ACKERMAN GREENSTONE NORTH AUGUSTA, LLC, THE NORTH AUGUSTA PUBLIC FACILITIES CORPORATION, AND THE CITY AND OTHER MATTERS RELATED THERETO WHEREAS, the City of North Augusta, South Carolina (the “City”), Greenstone Hammond’s Ferry, LLC, a South Carolina limited liability company (the “Master Developer”), Ackerman Greenstone North Augusta, LLC (the “Hotel Developer”), and GreenJackets Baseball LLC entered into that certain Master Development Agreement dated March 15, 2017 (as the same has been and may be amended from time to time, the “Master Development Agreement”); and WHEREAS, under the Master Development Agreement, the City designated the Master Developer as master developer for a mixed-use project in North Augusta, South Carolina now known as “Riverside Village”; and WHEREAS, in connection with the execution of the Master Development Agreement, the City and the Master Developer entered into a Master Parking Facilities Operating and Easement Agreement dated April 25, 2017 (the “Original Master Parking Agreement”), which was joined by North Augusta Public Facilities Corporation (the “Corporation”) and the Hotel Developer, pursuant to separate Joinder Agreements (as defined in the Original Master Parking Agreement), to set forth certain rights by which parties have access to parking spaces in the respective Parking Facilities (as defined in the Original Master Parking Agreement) owned, in whole or in part, by Master Developer (or a Greenstone Entity (as defined in the Original Master Parking Agreement)) and/or the City and the Corporation, certain rights which Master Developer and the City retained with respect to and in connection with such Parking Facilities, and certain responsibilities and duties they each have with respect to said Parking Facilities; and WHEREAS, the City, the Corporation and the Hotel Developer entered into that certain Parking Operating Agreement dated as of December 1, 2017 (the “Parking Operating Agreement”) regarding the use, operation, care, and maintenance of the Hotel Deck (as defined in the Master Development Agreement); WHEREAS, in the approximately seven years since the Original Master Parking Agreement and Parking Operating Agreement were entered into by the respective parties thereto, due to changes in market conditions, the current interest rate environment and the effects of the COVID-19 pandemic, among other things, the original concepts for the development of Riverside Village have changed in certain instances and the Master Developer and its joint venture partner, South City Partners, together with the City, have submitted an application through the City’s Planning Commission for approval by the Planning Commission and the approval by ordinance of the City Council of the City of certain revisions to the Revised General Development Plan for Hammond’s Ferry Planned Development, specifically with respect to Phase B thereof to allow for completion of the Riverside Village portion of the Hammond’s Ferry Planned Development (the “Phase B Revisions”); and 2 WHEREAS, in connection with the application for the Phase B Revisions, the parties have proposed to enter into a Fourth Amendment to Master Development Agreement (the “Fourth Amendment”) amending the Master Development Agreement to further extend the term of the Master Development Agreement and update and amend the Master Development Agreement with respect to Phase B of Riverside Village relating specifically to the Phase B Revisions and the completion of the development of Riverside Village. WHEREAS, in conjunction with the approval of the Phase B Revisions and the execution of the Fourth Amendment, the City and the Master Developer propose to enter into an Amended and Restated Master Parking Facilities Operating and Easement Agreement (the “Amended and Restated Master Parking Agreement”) regarding the use, operation, care and maintenance of the Parking Facilities and other parking facilities and spaces in Riverside Village in order to amend and restate the Original Master Parking Agreement and update the overall parking arrangements for Riverside Village; and WHEREAS, the City has determined that it would be necessary and in the best interests of the City for the Corporation to join in the Amended and Restated Master Parking Agreement by entering into an Amended and Restated Master Parking Facilities Operating and Easement Agreement Joinder, by and among Master Developer, the City and the Corporation (the “Amended and Restated Corporation Parking Joinder”), to allow the Corporation to be subject to and receive the benefits of the Amended and Restated Master Parking Agreement; and WHEREAS, the City has determined that it would be necessary and in the best interests of the City for the Hotel Developer to join in the Amended and Restated Master Parking Agreement by entering into an Amended and Restated Master Parking Facilities Operating and Easement Agreement Joinder, by and among Master Developer, the City, the Corporation and the Hotel Developer (the “Amended and Restated Hotel Developer Parking Joinder” and, together with the Amended and Restated Corporation Parking Joinder, the “Joinders”)), to allow the Hotel Developer to be subject to and receive the benefits of the Amended and Restated Master Parking Agreement; and WHEREAS, the City Council has approved the Amended and Restated Master Parking Agreement, the Amended and Restated NAPFC Parking Joinder and the Amended and Restated Hotel Developer Parking Joinder, each substantially in the forms attached to and incorporated by reference in Resolution 2024-11 adopted by the City Council on March 18, 2024; and WHEREAS, in connection with the execution and delivery of the Amended and Restated Master Parking Agreement and the related Joinder Agreements, the City, the Corporation and the Hotel Developer desire to amend the Parking Operating Agreement to cause it to be consistent with the terms of the Amended and Restated Master Parking Agreement and to provide further detail regarding the parking arrangements with respect to the Hotel Deck, all pursuant to a First Amendment to Parking Operating Agreement among the Hotel Developer, the Corporation, and the City (the “First Amendment to Parking Operating Agreement”); WHEREAS, the City Council has received and reviewed the First Amendment to Parking Operating Agreement, which is attached hereto, marked Exhibit A and incorporated by reference; and 3 WHEREAS, pursuant to the requirements of the Master Development Agreement, the Mayor and the City Administrator have reviewed the First Amendment to Parking Operating Agreement specifically in relation to terms contained within the Master Development Agreement, including Exhibit F thereto, as amended, and have determined that any deviations, if any, from details and material terms as set forth in the Master Development Agreement, including Exhibit F thereto, are satisfactory and they recommend the approval of any such deviations; and WHEREAS, the City has determined that the First Amendment to Parking Operating Agreement will continue to allow the City to fulfill obligations under the terms of the Parking Operating Agreement, the Master Development Agreement, the Amended and Restated Master Parking Agreement, and the Joinders, and that it is in the best interest of the City to enter into the First Amendment to 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 First Amendment to Parking Operating Agreement. 2. The Parking Operating Agreement, as amended by the First Amendment to 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, as amended, 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, individually or collectively, to (a) make such modifications to the First Amendment to Parking Operating Agreement as either or both of them shall deem necessary or prudent, so long as the substance of such document remains consistent with the form presented at this meeting, and (b) execute the First Amendment to Parking Operating Agreement on behalf of the City. 4. The City Administrator and Mayor are each hereby authorized, individually or collectively, 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 and the First Amendment to Parking Operating Agreement. Exhibit A Copy of First Amendment to Parking Operating Agreement (See attached) FIRST AMENDMENT TO PARKING OPERATING AGREEMENT THIS FIRST AMENDMENT TO PARKING OPERATING AGREEMENT (“First Amendment”) is made and entered into as of the ___ day of April, 2024, 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 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, Greenstone Hammonds Ferry, LLC, a South Carolina limited liability company (the “Master Developer”) and the Hotel Developer, dated March 15, 2017 (the “Master Development Agreement”), as the same has been and may be amended from time to time; WHEREAS, the City and the Master Developer entered into that certain Master Parking Facilities Operating and Easement Agreement dated as of April 25, 2017 governing the use, operation, care and maintenance of the Parking Facilities and other parking facilities and spaces in Riverside Village as defined therein (the “Original Master Parking Agreement”), which was joined by the Corporation and the Hotel Developer pursuant to separate Joinder Agreements (as defined in the Original Master Parking Agreement); WHEREAS, the City, the Corporation and the Hotel Developer entered into that certain Parking Operating Agreement dated as of December 1, 2017 (the “Parking Operating Agreement”) regarding the use, operation, care, and maintenance of the Hotel Deck (located on the parcel of real property described on Exhibit “B” attached to this First Amendment; WHEREAS, on or about December 1, 2017, the City conveyed to Hotel Developer the real property described on Exhibit “A” attached to this First Amendment and defined in the Parking Operating Agreement as the “Hotel Parcel”, upon which Hotel Developer constructed the Hotel (as defined in the Master Development Agreement) and the City and the Corporation constructed the Conference Facilities (as defined in the Master Development Agreement); WHEREAS, in conjunction with the approval of certain revisions to the General Development Plan and the Master Plan (each as defined in the Master Development Agreement), the Master Developer and the City have entered into an Amended and Restated Master Parking Facilities Operating and Easement Agreement (the “Amended and Restated Master Parking Agreement”) amending and restating the Original Master Parking Agreement in its entirety, and the City, the Corporation, the Master Developer and the Hotel Developer, as applicable, have entered into amended and restated Joinder Agreements (as defined in the Amended and Restated Master Parking Agreement) pursuant to which the Corporation and the Hotel Developer, respectively, become subject to, and entitled to the benefit of, the Amended and Restated Master Parking Agreement; 2 WHEREAS, in connection with the execution and delivery of the Amended and Restated Master Parking Agreement and the related Joinder Agreements, the City, the Corporation and the Hotel Developer desire to amend the Parking Operating Agreement to cause it to be consistent with the terms of the Amended and Restated 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. Defined Terms. Except as otherwise defined herein, each capitalized term used herein shall have the definition given to such term in the Parking Operating Agreement 2. Amendments. (a) All references to the “Master Parking Agreement” in the Parking Operating Agreement shall be understood to be references to the Amended and Restated Master Parking Agreement as defined in the Recitals to this First Amendment. In addition, the definitions of “Dedicated Parking Spaces” and “Hotel Deck” set forth in Section 1 of the Parking Operating Agreement are hereby deleted in their entirety and replaced with the following: “Dedicated Parking Spaces” means 260 parking spaces for the Hotel/Convention Center (subject to Section 4 of this Agreement), all located in the Hotel Deck. “Hotel Deck” shall mean that certain parking deck, which contains 451 parking spaces, more or less, to be located on the parcel described on Exhibit “B”. (b) Section 3.3 of the Parking Operating Agreement is hereby deleted in its entirety and replaced with the following: 3.3 Payment to City. With respect to fees collected by Hotel Developer for parking spaces in the Hotel Deck (exclusive of any fees paid directly to the City), Hotel Developer shall account for such fees in the monthly statement provided under Section 5 of this Agreement and the City shall be paid: (a) 40% of the revenue generated from the 260 Dedicated Parking Spaces in the Hotel Deck allocated to the Hotel Parcel (subject to subsection (c) below); (b) 100% of the revenue generated and collected by Hotel Developer from the other parking spaces in the Hotel Deck; and (c) 100% of the revenue generated from Dedicated Parking Spaces released pursuant to Section 4. (c) Section 3.8 of the Parking Operating Agreement is hereby deleted in its entirety and replaced with the following: 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 3 Deck for the services set forth in this Agreement. Except as provided in the last sentence of this Section 3.8, Hotel Developer shall be entitled to retain such management fee from payments to the City under Section 3.3 of this Agreement. Monthly fees due and payable to the City by the owner of Parcel K or residents of Parcel K, as applicable, in Riverside Village (as defined in the Amended and Restated Master Parking Agreement) for the use of certain Dedicated Parking Spaces in the Hotel Deck (the “Parcel K Parking Fees”) shall be paid in full (without setoff or deduction for the 4% management fee) directly to the City by such Parcel K owner or residents, as applicable, and the City shall be obligated to pay to the Hotel Developer an amount equal to 4% of Parcel K Parking Fees received by the City. (e) Section 4 of the Parking Operating Agreement is hereby deleted in its entirety and replaced with the following: 4. Use of Dedicated Parking Spaces. Hotel Developer and the City acknowledge that the residents of Parcel K hold certain rights to the use of up to 60 parking spaces in the Hotel Deck (the “Non-Reserved Spaces”) on those nights or weekends when the Hotel does not have a Hotel Event (as defined below) scheduled and there is no GreenJackets Event or City Event (each as defined below) at the Stadium. Notwithstanding the foregoing, the Hotel Developer shall have a first priority right to utilize up to 100 parking spaces located in the Hotel Deck for any Hotel Event scheduled. In addition, if there is no Hotel Event scheduled, if there is a City Event or a GreenJackets Event scheduled at the Stadium, the Hotel Developer will release the 100 Dedicated Parking Spaces for use in connection with the City Event or GreenJackets Event at the Stadium, or, if there is a Hotel Event scheduled, to the extent the Hotel Event does not require the use of all 100 Dedicated Parking Spaces, Hotel Developerwill release, or will cause the owner or manager of the hotel portion of the Hotel/Convention Center to release, the number of excess parking spaces not needed for the Hotel Event for use in connection with the City Event or GreenJackets Event at the Stadium. In the event of either a Hotel Event, City Event, or GreenJackets Event, the residents of Parcel K otherwise entitled to use the Non- Reserved Spaces shall vacate or forgo their right to utilize such Non-Reserved Spaces for the duration of the Hotel Event, City Event, or GreenJackets Event, as applicable. The owner or manager of the hotel portion of the Hotel/Convention Center shall provide the Hotel Developer, the City and the Stadium Deck Owner (as defined in the Amended and Restated Master Parking Agreement) advance written notice of any Hotel Event not more than one week but not less than three days prior to such Hotel Event, which notice shall include an estimate of the maximum number of parking spaces (up to 100) needed for the Hotel Event. The City shall provide the Hotel Developer and the Stadium Deck Owner with advance written notice not less than one week nor more than three days prior to a “City Event” at the Stadium, which notice shall include an estimate of the maximum number of parking spaces (up to 100) needed for the City Event. When the City provides the Hotel Developer and the Stadium Deck Owner notice of a City Event, or the owner or manager of the hotel portion of the Hotel/Convention Center has provided the Hotel Developer, the City and the Stadium Deck Owner notice of a Hotel Event, or the City, Hotel Developer or Stadium Deck Owner have been provided notice or have knowledge of a GreenJackets Event, the Hotel Developer shall provide to the Parcel K owner or manager advance notice of the Hotel Event, the City Event, or the GreenJackets Event, as applicable, 4 not more than three or less than two days in advance of such event, and such owner or manager of Parcel K shall give notice to residents of Parcel K and advise such residents that they are prohibited from using the Non-Reserved Spaces during the Hotel Event, City Event, or GreenJackets Event, as applicable. The City shall be entitled to 100% of the revenue generated from Dedicated Parking Spaces released by Hotel Developer or owner or manager of the hotel portion of the Hotel/Convention Center pursuant to this Section 4. For purposes of this Section 4, (i) a “City Event” shall mean any event, activity or program held at the Stadium that is not a GreenJackets Event and that requires the use of all or a portion of the 100 Dedicated Parking Spaces; (ii) a “GreenJackets Event” shall mean (a) a GreenJackets baseball game, (b) a GreenJackets event (or other event managed by the GreenJackets) or (c) other activity that is otherwise related to the administration or operation of GreenJacket’s regular business at the Stadium, in each case that requires the use of all or a portion of the 100 Dedicated Parking Spaces; and (iii) a “Hotel Event” shall mean a convention, conference, wedding or other group function at the Hotel/Convention Center that requires the use of all or a portion of the 100 Dedicated Parking Spaces. (d) Section 7 of the Parking Operating Agreement is hereby amended to add the address of the owner of the Stadium Deck as follows: If to the Stadium Deck Owner: Riverside Village B Owner, LLC c/o Greenstone Enterprises, Inc. 3301 Windy Ridge Parkway, Suite 320 Atlanta, GA 30339 Attn: Christian B. Schoen (e) Exhibit “C” to the Parking Operating Agreement is hereby deleted in its entirety. (f) Exhibit “D” to the Parking Operating Agreement is hereby deleted in its entirety and replaced with Exhibit “D” attached to this First Amendment. 3. Governing Law. The internal laws of the State of South Carolina shall govern as to the interpretation, validity, and effect of this First Amendment, without regard to such state’s conflict of law principles. 4. 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 First Amendment shall be brought in any state or federal court located in Aiken County, South Carolina, which shall have exclusive jurisdiction of controversies arising under this First Amendment. 5. Severability. If any provision of this First Amendment or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this First Amendment, 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. 5 6. Entirety of Agreement. This First Amendment, together with the Parking Operating Agreement and the Amended and Restated 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. This First Amendment may be amended or modified only by a written instrument signed by the City, the Corporation and Hotel Developer. Except as amended hereby, the terms and provisions of the Parking Operating Agreement shall remain in full force and effect. 7. Successors and Assigns. This First Amendment shall be binding upon and inure to the benefit of the Parties and their respective successors, successors in title and assigns. 8. Captions. The captions in this First Amendment are included for purposes of convenience only and shall not be considered a part of this First Amendment or used in construing or interpreting any provision hereof. 9. Exhibits. All exhibits to this First Amendment are incorporated herein by reference and made a part hereof, to the same extent as if set out in full herein. 10. Construction. No provisions of this First Amendment shall be construed against a Party by reason of such Party having drafted such provisions. 11. Multiple Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall constitute an original document. 12. Third Party Beneficiaries. This First Amendment 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 First Amendment. [Signatures appear on following page.] 6 IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date first set forth above. ACKERMAN GREENSTONE NORTH AUGUSTA, LLC, a Georgia limited liability company By: Ackerman Greenstone North Augusta Mezz, LLC, a Georgia limited liability company Its: Manager By: _____________________ Kris Miller, Manager CITY OF NORTH AUGUSTA, SOUTH CAROLINA By: Name: Title: NORTH AUGUSTA PUBLIC FACILITIES CORPORATION, a South Carolina non-profit corporation By: Name: Title: 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 “B” 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. EXHIBIT “D” PUBLIC PARKING RATE TERMS HOTEL DECK Standard Parking Rates for City-Owned Parking Spaces Hourly –1st 2 hours free*; 3rd hour is $2 + $1/hour; max $10/day, subject to adjustment as provided in the Amended and Restated Master Parking Agreement Monthly - $30/month for residents of the Residential Parcels; provided that the monthly rate for residents assigned Dedicated Parking Spaces in the Hotel Deck is subject to increase pursuant to the terms of Section 5.5 of the Amended and Restated Master Parking Agreement *2 Hour Vendor Validation may be available with respect to certain retail and restaurant vendors; provided that such vendors will not be separately charged in connection with validation of customer parking 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) 160 spaces. $10/day with in/out privileges; 40% to City Conference (Hotel Deck) 100 spaces, except when released during Stadium events at Standard Daily Rate ($10); 40% to City. When released during Stadium events; Standard Daily Rate ($10); 100% to City.