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06-08-1994 Called MeetingAugust 8, 1994 A called meeting of the Downtown Smyrna Development Authority was held at Smyrna City Hall on August 8, 1994. Those attending the meeting were: A. Max Bacon, Chairman Hubert Black C.J. Fouts Steve Shupert Willouise C. Spivey, Secretary/Treasurer Doug Stoner Jimmy Wilson Absent: Jim Pitts Authority consultants that attended were Charles Camp, Attorney, and Ed Wall, Financial Consultant. By motion of Mr. Black and second of Mr. Shupert, the Authority unanimously approved the execution of the contracts between the DDA and the City of Smyrna, Thomas Enterprises, and Teague Ausburn Properties concerning downtown development in the City of Smyrna. STATE OF GEORGIA COUNTY OF COBB AGREEMENT This Agreement made and entered into as of August 8, 1994 by and between the City of Smyrna, Georgia (the "City") and the Downtown Smyrna Development Authority (the "Downtown Authority"). WITNESSETH WHEREAS, the Housing Authority of the City of Smyrna, Georgia (the "Housing Authority") has heretofore entered into contracts for: (i) purchase from the United States Department of Housing and Urban Development ("HUD") of 280 apartment units located on approximately 20 acres at 2550 Hargrove Road, known as Heritage Pointe Phase I ("Phase I"); and (ii) sale to Thomas Enterprises, Inc. ("Thomas") of Phase I; and (iii) purchase from HUD of 180 apartment units located on approximately 10 acres at 2550 Heritage Road, known as Heritage Pointe Phase II ("Phase II"); and (iv) sale to Teague-Ausburn Properties ("Teague-Ausburn") of Phase II; and WHEREAS, the Downtown Authority has entered into contracts with Thomas and Teague-Ausburn for payment by Thomas and Teague-Ausburn of certain funds to the Downtown Authority and for Thomas and Teague-Ausburn to undertake certain development in the downtown area of the City (the "Downtown Area"); and WHEREAS, the Downtown Authority wishes to contract with the City for transfer of certain property owned by the City and for payment to the City for amounts previously owed for property transferred by the City to the Downtown Authority; and WHEREAS, the contracts executed between the Downtown Authority and Thomas and the Downtown Authority and Teague-Ausburn provide that neither Thomas nor Teague-Ausburn are required to begin their development projects in the Downtown Area until the City executes a contract with a contractor for construction of a new City Hall/Municipal Services Building; and WHEREAS, the City wishes to contract with the Downtown Authority to commit the City to utilizing funds provided by the Downtown Authority from monies received from Thomas and Teague-Ausburn to construct a new City Hall/Municipal Services Building; NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. The City will convey to the Downtown Authority title to such property owned by the City and required by the Downtown Authority to be provided to Thomas or Teague-Ausburn in accordance with contracts between the Downtown Authority and Thomas, dated August 8, 1994 and between the Downtown Authority and Teague-Ausburn, dated August 8, 1994. -1- 2. The Downtown Authority will pay One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) to a trust account held at Bank South, N.A., for construction of a new City Hall/Municipal Services Building, upon receipt from the Downtown Authority of the One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) received by the Downtown Authority from Thomas. Additionally, the Downtown Authority will pay to the City funds received from Thomas after exercise by Thomas of an option provided by the Downtown Authority to Thomas allowing Thomas to purchase from the Downtown Authority certain additional property to enable Thomas to complete Phase B of its proposed development as set forth in the contract between the Downtown Authority and Thomas. These funds will be paid directly to the City and not to Bank South, N.A., as trustee. Additionally, the Downtown Authority will pay Seven Hundred Thousand and No/100 Dollars ($700,000.00) to Bank South, N.A., as trustee for funds held for the benefit of the City for construction of a new City Hall/Municipal Services Building, upon receipt from Teague- Ausburn of Seven Hundred Thousand and No/100 Dollars ($700,000.00). Additionally, as town home units are sold, the Downtown Authority will pay to the City up to Eight Thousand and No/100 Dollars ($8,000.00) per town home unit sold. Amounts paid by the Downtown Authority to the City will be all funds received by the Downtown Authority from sale of the town homes except for Two Hundred Thousand and No/100 Dollars ($200,000.00) Dollars which, pursuant to the agreement between the Downtown Authority and Teague- Ausburn, must be invested by the Downtown Authority in construction of each phase of the town homes. After the last phase of town homes is sold, the Downtown Authority will provide to the City all remaining funds from the sale of the town homes. 3. The City agrees to use the One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) received by the Downtown Authority from Thomas and paid to the City and the Seven Hundred Thousand and No/100 Dollars ($700,000.00) received by the Downtown Authority from Teague-Ausburn and paid to the City only to pay design, site preparation, construction and equipment for a new City Hall/Municipal Services Building and for payment of any financial advisory and legal expenses incurred by the" City in connection with acquisition by the Housing Authority of Phase I and Phase II and payments of fees of Sizemore Floyd, architects, in connection with services to the City and the Downtown Authority in connection with the overall downtown development plan. The City may also use such funds for acquisition and/or demolition of buildings and structures to enable Thomas and/or Teague-Ausburn to undertake their respective development projects. Attest: Attest: THE CITY OF SMYRNA, GEORGIA I0 DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY By: CHAIRMAN (SEAL) -2- STATE OF GEORGIA COUNTY OF COBB AGREEMENT This Agreement made and entered into as of August 8, 1994 by and between the Downtown Smyrna Development Authority (the "Downtown Authority") and Thomas Enterprises, Inc. ("Thomas"). WITNESSETH WHEREAS, the Housing Authority of the City of Smyrna, Georgia (the "Housing Authority") has heretofore entered into contracts for: (i) purchase from the United States Department of Housing and Urban Development ("HUD") of 280 apartment units located on approximately 20 acres at 2550 Hargrove Road, known as Heritage Pointe Phase I ("Phase I"); and (ii) sale of Phase I to Thomas; and WHEREAS, as a part of the consideration to the Housing Authority for purchase by Thomas of Phase I, Thomas has agreed to pay One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) to the Downtown Authority for an option to purchase from the Downtown Authority at a price of Ten and No/100 Dollars ($10.00) approximately three (3) acres, presently owned by the Downtown Authority, located in the downtown area of the City of Smyrna (the "Downtown Area"), all as described and delineated on Exhibit "X" (which is attached hereto and made a part hereof by reference); and WHEREAS, Thomas intends to construct a two-story facility containing approximately 19,000 square feet of retail space and approximately 18,000 square feet of office space and all required parking ("Phase A") on said site for profit and gain, which development will benefit the citizens of Smyrna through revitalization of the Downtown Area; and WHEREAS, Thomas has also proposed to develop a two-story facility containing approximately 8,000 square feet of office space and 8,000 square fee of retail space ("Phase B") on the site for profit and gain and requests that the Downtown Authority grant to Thomas an option to purchase the property described as "Phase B" on Exhibit "Y" (which is attached hereto and made a part hereof by reference; and WHEREAS, Construction of a new City Hall/Municipal Services Building is essential to the success of Phases A and B of Thomas's development and Thomas is willing to pay [including the option cost of One Million Seven Hundred Thousand and No/l00 Dollars ($1,700,000)] a premium price for said property, in part due to the City of Smyrna's (the "City") commitment to the Downtown Authority to construct a new City Hall/Municipal Services Building; and WHEREAS, Thomas wishes to acknowledge that it will cooperate with the Downtown Development Committee of the City of Smyrna (the "Downtown Committee"), the City and the Downtown Authority regarding the location and design of Phases A and B, and Thomas will comply with the Development Guidelines for the Development Area as set forth in Architectural Guidelines for Smyrna Downtown Development Authority; NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) in -hand paid and other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged: -I- AGREEMENT 1. Upon payment by Thomas to a trust account held at Bank South, N.A., One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00), the Downtown Authority grants to Thomas for a period of sixty (60) months from the date of execution of this Agreement, an option to purchase the property owned or to be owned by the Downtown Authority described as Phase A on the attached Exhibit "Y" for the sum of Ten and No/100 Dollars ($10.00). 2. The Downtown Authority agrees to acquire from the City any property shown as Phase A and Phase B on the attached Exhibit "Y" which it does not currently own. To the extent that there are structures on such property, the Downtown Authority agrees to have the City remove such structures within sixty (60) days following notification by Thomas of the date Thomas will begin construction of Phase A. 3. The Downtown Authority grants to Thomas an option to purchase at Three and 501100 Dollars ($3.50) per square foot the property described as Phase B on the attached Exhibit "Y." Such option is for a period of twenty-four (24) months following completion by Thomas of construction of Phase A. The Downtown Authority agrees, to the extent that it does not already own such property, to acquire such property from the City and to arrange for the City to remove any structures located on such property within sixty (60) days of notification by Thomas to the Downtown Authority that Thomas intends to proceed with construction of Phase B. 4. The Downtown Authority agrees to pay to the City the One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) paid by Thomas pursuant to Paragraph 1 above and to contractually bind the City to utilization of such One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) for payment of the costs of design, site preparation, construction and equipment for a new City Hall/Municipal Services Building and for payment of any financial advisory and legal expenses incurred by the City in connection with acquisition by the Housing Authority of Phase I and payment of fees of Sizemore Floyd, Architects, in connection with services to the City and the Downtown Authority in connection with the overall downtown development plan. The City may also use such funds for the removal of any existing buildings or structures to enable Thomas to undertake its development project. 5. Thomas acknowledges that it has received a copy of the development requirements and restrictions for development in the Downtown Area as set forth in Architectural Design Guidelines for Smyrna Downtown Development Authority. 6. Thomas agrees that Phase A and Phase B will be constructed in compliance with the development standards and restrictions as set forth in Architectural Design Guidelines for Smyrna Downtown Development Authority. 7. The Downtown Authority agrees to cooperate with Thomas and to undertake those reasonable requests by Thomas that are within the ability of the Downtown Authority to accomplish to aide Thomas in successfully completing Phase A and Phase B. Thomas agrees to provide to the Downtown Authority a letter of credit ("LOC") from a financial institution satisfactory to the Downtown Authority .in. the , amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) evidencing Thomas's good faith in going forward with construction of Phase A and Phase B. Such LOC is to be provided by Thomas no later than Ten (10) Days following execution by the City of a contract for construction of a new City Hall/Municipal Services Building. The LOC amount is to be paid to the Downtown Authority if Thomas fails to begin construction of Phase A within one hundred eighty (180) days of execution by the City of a contract for construction of a new City Hall/Municipal Services Building. Upon Provision -2- Attest: Attest: by Thomas of the LOC and provision of an executed construction contract for Phase A, the Downtown Authority will provide Thomas good and merchantable title to the property described as Phase A in Exhibit "Y." THOMAS ENTERPRISES, INC. Stanley A. Thomas DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY By: CHAIRMAN (SEAL) -3- STATE OF GEORGIA COUNTY OF COBB AGREEMENT This Agreement made and entered into as of August 8, 1994 by and between the Downtown Smyrna Development Authority (the "Downtown Authority") and Teague- Ausbum Properties, Inc. ("Teague/Ausburn"). WITNESSETH WHEREAS, the Housing Authority of the City of Smyrna, Georgia (the "Housing Authority") has heretofore entered into contracts for: (i) purchase from the United States Department of Housing and Urban Development ("HUD") of 180 apartment units located on approximately 10 acres at 2550 Hargrove Road, known as Heritage Pointe Phase II ("Phase II"); and (ii) sale of Phase II to Teague-Ausburn Properties, Inc.; and WHEREAS, as a part of the consideration to the Housing Authority for purchase by Teague-Ausburn of Phase II, Teague-Ausburn has agreed to pay Nine Hundred Thousand and No/100 Dollars ($900,000.00) for the right to develop on parcel 5 (consisting of approximately 1.92 acres) and parcel 6 (consisting of approximately 1.3 acres), all as described and delineated on Exhibit "Z" (which is attached hereto and made a part hereof by reference), between 50 and 66 attached town home type dwelling units (the "Town Homes") in phases of 8 to 12 units beginning on parcel 5; and WHEREAS, Teague-Ausburn has proposed that, of the Nine Hundred Thousand and No/100 Dollars ($900,000.00) paid to the Downtown Authority, Two Hundred Thousand and No/100 Dollars ($200,000.00) is to be invested by the Downtown Authority in the cost of development and construction of the Town Homes, which Two Hundred Thousand and No/100 Dollars ($200,000.00) is to be repaid to the Downtown Authority from the first proceeds (net of real estate commissions and other closing costs) of sale of the Town Homes after payment of any construction loan; and WHEREAS, Construction of a new City Hall/Municipal Services Building is essential to the success of the Town Home Development proposed by Teague-Ausburn, and Teague-Ausburn is willing to pay a premium price for parcels 5 and 6 as shown in Exhibit "Z" in part due to the City of Smyrna's (the "City") commitment to the Downtown Authority to construction a new City Hall/Municipal Services Building; and WHEREAS, Teague-Ausburn will pay to the Downtown Authority from proceeds of sale of the Town Homes, after repayment of the Two Hundred Thousand and No/100 Dollars ($200,000.00) invested by the Downtown Authority in construction of the Town Homes and after payment of any construction loan and real estate commissions and closing costs (together the "Closing Costs"), Five Thousand and No/100 Dollars ($5,000.00) per unit and after payment to Teague-Ausburn of a development fee equal to Ten Percent (10%) of the total development cost of the Town Homes, Three Thousand and No/100 Dollars ($3,000.00) Der Town Home unit sold. All remaining proceeds will be paid to Teague-Ausburn as developers profit; and WHEREAS, Teague-Ausburn wishes to acknowledge that it will cooperate with the Downtown Development Committee of the City of Smyrna (the "Downtown Committee'), the City and the Downtown Authority regarding the location and design of the Town Homes and Teague-Ausburn will comply with the Development Guidelines for the Development Area as set forth in Architectural Design Guidelines for Smyrna Downtown Development Authority. -1- NOW THEREFORE, in consideration ($10.00) in -hand paid and other good and sufficiency whereof are hereby acknowledged: of payment of Ten and No/100 Dollars valuable considerations, the receipt and AGREEMENT 1. Conditioned only upon payment by Teague-Ausburn to a trust account held at Bank South, N.A., of Seven Hundred Thousand and No/100 Dollars ($700,000.00) and to a separate trust account held at Bank South, N.A., Two Hundred Thousand and No/100 Dollars ($200,000.00), the Downtown Authority grants to Teague-Ausburn for a period of Sixty (60) months from the date of execution of this Agreement, an option to purchase and develop, in phases of 8 to 12 Town Home units, all of that property owned by the Development Authority shown as parcels 5 and 6 on Exhibit "Z" (which is attached hereto and made a part hereof). Upon sale of such Town Home units, payment for such property is to be made as follows: a) The Development Authority will contribute the land for each phase to Teague-Ausburn for a deferred purchase price as provided below and will pay up to, but not exceeding, Two Hundred Thousand and No/100 Dollars ($200,000.00) of the cost of construction and development of each phase of the Town Homes which Two Hundred Thousand and No/100 Dollars ($200,000.00) will be repaid to the Development Authority as the first funds received from sale of each phase of the Town Homes after payment of Closing Costs and the construction loan for such phases; b) the next Five Thousand and No/100 Dollars ($5,000.00) received from proceeds of sale from each Town Home unit plus; c) Three Thousand and No/100 Dollars ($3,000.00) per Town Home unit sold after payment of a developer's fee equal to Ten Percent (10%) of the cost of each phase of the development. After payment of the above amounts, all remaining proceeds of sale of the Town Homes are to be paid to Teague-Ausburn as their profit. 2. The Downtown Authority agrees to reinvest the Two Hundred Thousand and No/100 Dollars ($200,000.00) equity it receives from sale of each phase of the Town Homes in each subsequent phase until all Town Home phases are completed. There are two private residences located adjacent to parcel 6 as shown on Exhibit "Z." The Downtown Authority will be responsible for acquisition and demolition of these residential units prior to commencement of construction of the phase of Town Homes that would occupy these properties. 3. The Downtown Authority agrees to contract with the City to pay to the City the Seven Hundred Thousand and No/100 Dollars ($700,000.00) paid by Teague- Ausburn pursuant to paragraph 1 above and to contractually bind the City to utilization of such Seven Hundred Thousand and No/100 Dollars ($700,000.00) only for payment of the costs of design, site preparation, construction and equipment for a new City Hall/Municipal Services Building and for payment of any financial advisory and legal expenses incurred by the City in connection with acquisition by the Housin¢ Authority of Phase II and payment of fees of Sizemore Floyd, architects, in connection with services provided the City and the Downtown Authority in connection with the overall downtown development plan. The City may also use such funds for acquisition and/or removal of buildings and structures necessary for Teague-Ausbum to undertake the development project. 4. Teague-Ausburn acknowledges that it has received a copy of the development requirements and restrictions for the development in the Downtown Area as set forth in Architectural Design Guidelines for Smyrna Downtown Development Authority. -2- Teague-Ausburn agrees that the Town Homes will be constructed in compliance with the development standards and restrictions as set forth in Architectural Design Guidelines for Smyrna Downtown Development Authority. 6. The Downtown Authority agrees to cooperate with Teague-Ausburn and to undertake those reasonable requests by Teague-Ausburn that are within the ability of the Downtown Authority to accomplish to aide Teague-Ausburn in successfully completing all phases of the Town Home development. 7. Teague-Ausburn agrees to incorporate the reasonable requests of the Downtown Committee and the City and the Downtown Authority in the design and development of the Town Homes. 8. Teague-Ausburn agrees to begin construction of the Town Homes by the latter of- (i) 180 calendar days following execution of a contract by the City with a contractor for construction of a new City Hall/Municipal Services Building; (ii) 180 calendar days following agreements between Teague-Ausbum, the Downtown Committee, the Downtown Authority and the City on design and specifications of the Town Homes; or (iii) 120 days following beginning of construction of the commercial development of Thomas Enterprises, Inc. 9. Teague-Ausburn shall have a period of up to ninety (90) days from the date on which it closes the purchase of Phase II in which to make the payment described in Paragraph 1. Teague-Ausburn may, but shall not be required to, deposit an irrevocable letter of credit in the amount of Nine Hundred Thousand and No/100 Dollars ($900,000.00) issued to the Downtown Authority, to secure its obligation to make such payment. 10. Promptly following Teague-Ausburn's purchase of Phase II, the Downtown Authority shall designate in writing the trust accounts at Bank South, N.A., to which Teague-Ausburn should make the payments described in Paragraph 1. In the absence of such designation, Teague-Ausburn shall be deemed to have satisfied its payment obligation by delivering to the Downtown Authority Teague-Ausburn's check, payable to the Downtown Authority, in the amount of Nine Hundred Thousand and No/100 Dollars ($900,000.00) (provided such check is collectible). 11. Teague-Ausburn's initial commitment under this Agreement is to develop the first phase of 8 to 12 Town Homes on Parcel 5, which would have a suggested sales price of approximately One Hundred Thousand and No/100 Dollars ($100,000.00) or more per unit, and Teague-Ausburn would intend to develop one or more additional phases if the first phase proves successful. The parties acknowledge, however, that: a) Teague-Ausburn has not had an opportunity to conduct an in-depth due diligence review of the proposed project and that the results of such review may produce currently unexpected impediments to financing or development, and b) Additional definitive documentation will be required between Teague- Ausburn and the Downtown Authority. Accordingly, Teague-Ausburn's initial commitment hereunder to develop the first phase of Town Homes, and any subsequent development commitment, are conditioned upon the following: (i) Execution by the City of a contract with a contractor for construction of a City Hall/Municipal Services Building; (ii) Commencement of construction of the proposed retail development in the vicinity of the proposed Town Homes; -3- (iii) Teague-Ausburn's ability to obtain a construction loan for any phase on reasonable terms and conditions; (iv) The Downtown Authority's delivering to Teague-Ausburn the subject property with no material impediments including (but not limited to): title and survey matters, environmental review, engineering reports, design issues, availability of permits, utility availability, zoning issues and general market conditions; (v) Teague-Ausburn's ability to reach agreement with the Downtown Authority on definitive documentation regarding the transactions described in this Agreement; and (vi) Teague-Ausburn's ability to reach agreement with the Downtown Authority or the Downtown Committee regarding the location and design of the Town Homes. Following the execution of this Agreement, Teague-Ausburn shall endeavor diligently and in good faith to satisfy such conditions. Inability to satisfy such conditions shall not entitle Teague-Ausburn to a refund of any payments made pursuant to Paragraph 1 hereof, but neither Teague-Ausburn nor the Downtown Authority shall have any obligation to proceed to the development of Town Homes until such conditions are satisfied. 12. Teague-Ausburn shall have the right, but not the obligation, to assign this Agreement to any person or entity to whom Teague-Ausburn assigns its contract with the Housing Authority with respect to Phase II. 13. The parties acknowledge that Teague-Ausburn has entered into this Agreement simultaneously with the execution of its contract to purchase Phase II from the Housing Authority (the "Phase II Contract"). 'Teague is not willing to perform its obligations under this Agreement unless and until Teague acquires Phase II in accordance with the terms of the Phase II Contract. Accordingly, in the event Teague-Ausburn does not acquire Phase II pursuant to the Phase II Contract for any reason (including without limitation Teague-Ausburn's default thereunder), then this Agreement and all of Teague-Ausburn's duties and obligation hereunder shall be null and void and of no further force and effect, and Teague- Ausburn shall have no obligation to deliver any funds, letters of credit or other form of consideration, or to perform any development activities, under this Agreement unless and until such time as Teague-Ausburn acquires Phase II in accordance with the terms of the Phase II Contract. Attest: Attest: TEAGUE-AUSBURN PROPERTIES, INC. DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY CHAIRMAN (SEAL) -4-