A. 2'"1 Public I-lcaring: Amendment to the Robbers Roost Developn-rent Agreement

Transcription

1 CTTY OF NORTH MYRTLE BEACH 1018 Second Avenue South North Myrtle Beach, S.C. SPECIAI CALLED CITY COUNCIL MEETING AGENDA Vüednesday August 3, 2OL6 2:00 PM A. 2'"1 Public I-lcaring: Amendment to the Robbers Roost Developn-rent Agreement B. ORDINANCE/FIRS-f RIIADING: An Ordinancc amending the Development Agreement f-or the Iìobbers Roost PDD (Planned Development District) Rules regarding video recording and photography: Except during the ceremorrial porlion of the Council rneeting, all video recoldirrg arrd photography shall be conducted from a stationary position: l. While seated in the bacl< row of the CoL ncil charlbers, or 2. While starrdirrg behind the last row of seats in CoLrncilchamber

2 STATE OF SOUTH CAROLINA ) FIRST AMENDMENT TO ) AMENDED AND RESTATED COUNTY OF HORRY ) DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the First Amendment ) is entered into this day of, 2016, by and between the CITY OF NORTH MYRTLE BEACH, SOUTH CAROLINA, a South Carolina municipal corporation (the City ) and TIENTE LIMITED PARTNERSHIP, a South Carolina limited partnership ( Landowner 2 ). The City and Landowner 2 may be referred to individually as a Party and collectively as the Parties. COASTAL CAROLINA NATIONAL BANK (the Bank ) hereby joins in the execution of this First Amendment to evidence its consent and agreement related to certain obligations pertaining to the Bank as set forth herein. WHEREAS, the City, SC North Myrtle Beach 11 th Ave, LP, and Landowner 2, entered into that certain Amended and Restated Development Agreement, dated effective September 27, 2013, and recorded October 2, 2013, in Deed Book 3688, at Page 1422, records of Horry County (the Development Agreement ); WHEREAS, the Development Agreement governs the development of two parcels of real property described therein as Parcel 1 (originally consisting of approximately 39 acres of property), and Parcel 2 (originally consisting of approximately 63 acres of property); and WHEREAS, Landowner 2 is the owner of the Approving Parcel for Parcel 2 (as defined in Section 6.7A of the Development Agreement), and has or intends to convey portions of Parcel 2 to third party developer(s) for development; WHEREAS, the Development Agreement governs the development of two parcels of real property described therein as Parcel 1 (originally consisting of approximately 39 acres of property), owned by Landowner 1, and Parcel 2 (originally consisting of approximately 63 acres of property, owned by Landowner 2; WHEREAS, since the date of the Development Agreement, a acre portion of Parcel 2 has been conveyed by Landowner 2 to SC North Myrtle Beach Retail, LP, and a 1.70 acre portion of Parcel 2 has been conveyed to the Bank; WHEREAS, the 1.70 acre portion of Parcel 2 transferred to Bank, located at the corner of Hwy 17 and 11 th Avenue North, is designated as Phase 2 of the PDD; WHEREAS, the Development Agreement, specifically Section 4.12, places obligations upon Landowner 2 to construct improvements to 11 th Avenue in conjunction with development of Phase 2, Phase 3 and/or Phase 4; WHEREAS, the Parties desire to amend the Development Agreement to, among other things, provide that the City shall perform certain improvements to 11 th Avenue, and that the Bank and the Residential Developer (defined in Section 2.A.(i)(b) below), shall reimburse a portion of the costs therefore, as more particularly described in this First Amendment; WHEREAS, the Parties further desire to amend the Development Agreement to require the Commercial Developer (defined in Section 2.A.(i)(a) below) of the unsold portion of Parcel 2 to construct the balance of Sea Hope Way, which will be dedicated to and become a public roadway owned and maintained by the City; and

3 WHEREAS, the Parties further desire to amend the Development Agreement to address the upgrading of, and cost sharing associated with, a sanitary sewer pump station located on the City Lot (as such term is defined in Section 4.6 of the Development Agreement), which City Lot is also known as Phase 3B of the PDD; and WHEREAS, pursuant to Section 6.7 of the Development Agreement, amendments only affecting Parcel 2 need not be consented to by the owner of Parcel 1 or the owner of the Approving Parcel for Parcel 1, as long as such amendment does not have a material adverse impact on Parcel 1. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. The above recitals are hereby incorporated herein. 2. The Development Agreement is amended to add Exhibit D and Exhibit E. Exhibit D reflects the current phasing plan for the PDD (as such term is defined in the Development Agreement). Exhibit E reflects the location of certain improvements defined in this First Amendment. 3. Section 4.12 of the Development Agreement is hereby amended to delete the second sentence that reads Landowner 2 shall be responsible for the construction of all roadways or driveways within Phase 2, Phase 3, and/or Phase 4, and for any and all required improvements to 11 th Avenue as required by the DOT and/or the City in conjunction with the development of Phase 2, Phase 3, and/or Phase 4. Section 4.12 is further amended to add the following sub-sections A and B: A. Landowner 2 and Successors in Ownership to Parcel 2: (i) Definitions: For purposes of this sub-section, the following definitions shall apply. (a) Commercial Developer shall mean the owner/developer of the portion of Parcel 2 that is planned for commercial development, and which is designated as Phase 3A on Exhibit D. (b) Residential Developer shall mean the owner/developer of the portion of Parcel 2 that is planned for single-family development, and which is designated as Phase 4 on Exhibit D. (c) Sea Hope Way Extension shall mean the extension of Sea Hope Way that will connect 11 th Avenue with the commercial shopping center located on Parcel 1 at the approximate location identified on Exhibit E. (d) Detention Pond shall mean the new detention pond to be constructed between Sea Hope Way Extension and Highway 17 at the approximate location identified on Exhibit E. (ii) Parcel 2 Roadways and Driveways: The owner(s)/developer(s) of each of Phase 2, Phase 3 and Phase 4 of the PDD (and each portion thereof) shall be responsible for the construction (and cost thereof) of all roadways or driveways within Phase 2, Phase 3, and/or Phase 4 (the Parcel 2 Roads ) located upon their respective parcels of land. Notwithstanding the immediately preceding sentence, it is hereby agreed and understood that Landowner 2 will not be the developer of any portion of Phase 2, Phase 3 and/or Phase 4, and that any responsibility to construct the Parcel 2 Roads shall not commence

4 until any portion of Phase 2, Phase 3, and/or Phase 4 is transferred by Landowner 2 to a third party developer(s). (iii) Construction of Sea Hope Way Extension and the Detention Pond: The Commercial Developer shall be responsible for the construction of Sea Hope Way Extension and the Detention Pond. However, as stated in the PDD, the connection of Sea Hope Way Extension from 11 th Avenue to Phase 4C is required to coincide with the platting and development of Phase 4C, and therefore, if such connection has not been completed by the Commercial Developer by the date such platting and development of Phase 4C takes place, construction of such portion of Sea Hope Way Extension shall be completed or guaranteed financially by the Residential Developer prior to the first building permit being issued for Phase 4C. Following construction, Sea Hope Way Extension and the Detention Pond shall be dedicated to and accepted by the City. By acceptance of such dedications, the City agrees to assume full maintenance responsibility for Sea Hope Way and the Detention Pond. The Parties, collectively, further agree to execute any such documentation necessary to effectuate such dedications. (iv) Contribution to Roadway Improvements: The following amounts shall be paid to the City as contributions towards the costs of all roadway improvements contemplated by this First Amendment, including the 11 th Avenue Improvements (as such term is defined herein) (collectively, the Roadway Contributions ): (a) The Bank s contribution was calculated to be $40,000. Notwithstanding the immediately preceding sentence, the City acknowledges that the Bank previously installed roadway improvements at the direction of the City (the Prior Roadway Improvements ). The City has determined that the Prior Roadway Improvements have a value in excess of $40,000. As a result of the installation of the Prior Roadway Improvements, the Bank s contribution shall be $0.00, and (b) Landowner 2, or the owner/developer of Phase 4, shall pay $350,000. Landowner 2 (or the owner/developer of Phase 4) shall pay the above designated Roadway Contribution within thirty (30) days of request therefor from the City, after the awarding of but prior to the execution of a construction contract for the 11 th Avenue Improvements. The City hereby acknowledges and agrees that neither the Bank nor Landowner 2 (or the developer of each portion of Phase 4) shall have any further obligations for construction and/or payment related to the 11 th Avenue Improvements upon making such Roadway Contributions. The City also hereby acknowledges and agrees that the Commercial Developer shall have no obligations for construction and/or payment related to the 11 th Avenue Improvements. B. City to Construct 11 th Avenue Improvements: The City shall be solely responsible for the performance of any and all required improvements to 11 th Avenue as required by the DOT and/or the City in conjunction with the development of Phase 2, Phase 3, and/or Phase 4 (the 11 th Avenue Improvements ), which shall include widening 11 th Avenue to three lanes from the intersection with US Highway 17 approximately 3,290 linear feet, together with signal light improvements necessary to accommodate such widening. The scope of the 11 th Avenue Improvements is set forth on the 30% complete set of construction plans prepared by Stantec Consulting Services, Inc., dated October 12th, 2015, incorporated herein by reference (the 11 th Avenue Plans ). The City shall be responsible for completion of the 11 th Avenue Improvements after completion of the 11 th Avenue Plans. 4. The Development Agreement is further amended to amend the fourth paragraph of Section 4.7, Relocation of Utilities Underground, to reflect the current status and future timing of payment of the Landowner 2 Portion of the Utility Relocation Fund.

5 Landowner 2 Portion: City and Landowner 2 acknowledge and agree that the first installment payment of $100,833.33, representing the payment due for Phase 2 of the PDD, has been made. The Phase 3 payment of $100, shall be due by the Commercial Developer prior to issuance of a development permit for Phase 3A. The Phase 4 portion of the Landowner 2 Portion, in the total amount of $100,833.33, shall be paid by Residential Developer as follows: (i) $33, shall be paid prior to issuance of a building permit for Phase 4A; (ii) $33, shall be paid prior to issuance of a building permit for Phase 4C; and (iii) $33, shall be paid prior to issuance of a building permit for Phase 4E. 5. The Development Agreement is further amended to add Section 4.15 related to the installation of, and cost sharing associated with, a sanitary sewer pump station to be located on the City Lot, which shall provide as follows: 4.15 Sanitary Sewer Pump Station. In conjunction with the development of Phase 3A (but not otherwise), the Commercial Developer shall upgrade an existing sanitary sewer pump station on the City Lot, in the approximate location indicated on Exhibit E (the Existing Pump Station ). By execution of this Amendment, the City hereby grants the Commercial Developer all easement rights, including but not limited to access, utility, and temporary construction easements, in and over the City Lot as may be necessary in order for the Existing Pump Station to be upgraded. The Commercial Developer shall pay all of the initial costs associated with the design and installation/upgrading of the Existing Pump Station (the Pump Station Costs ), which costs shall be apportioned between the City, the Commercial Developer, and the Residential Developer based on Equivalent Residential Units (ERU) served, as follows: City: 325 ERU 57% Residential Developer: 155 ERU 27% Commercial Developer: 92.4 ERU 16% Total: ERU 100% Upon completion of the Existing Pump Station to the reasonable satisfaction of the City, the Commercial Developer shall compile the Pump Station Costs and present the City with a detailed invoice setting forth said costs and the respective shares of the City and the Residential Developer related to same (based on the above percentages). Within thirty (30) days of the receipt of said invoice, the City shall reimburse the Commercial Developer for (i) its share of the Pump Station Costs, and (ii) the Residential Developer s share of the Pump Station Costs (the Residential Share ). As a condition precedent to the issuance of individual building permits for homes to be constructed within Phase 4, the Residential Developer shall reimburse the City a pre-determined portion of the Residential Share for each building permit issued, calculated by dividing the total Pump Station Costs by the total ERU served as shown above. 6. The Development Agreement is further amended to provide that the Commercial Developer shall be responsible for the removal of two (2) billboards located on the eastern side of US Highway 17 (in the approximate locations shown on Exhibit E), which removal shall be completed prior to the issuance of certificates of occupancy for Phase 3A. Other than as specifically provided herein, the terms, conditions and obligations set forth in the Development Agreement shall remain the same. SIGNATURES ON FOLLOWING PAGES

6 IN WITNESS WHEREOF, the Parties have executed this First Amendment effective as of the day and year first written above. CITY: Witness 1 Witness 2 (Notary) CITY OF NORTH MYRTLE BEACH By:_ Mike Mahaney, City Manager STATE OF SOUTH CAROLINA ) ) ACKNOWLEDGEMENT COUNTY OF HORRY ) I, the undersigned notary, do hereby certify that the above subscribed City of North Myrtle Beach, by Mike Mahaney, its City Manager, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and seal this day of, Notary Public for the State of My Commission Expires: (Seal)

7 IN WITNESS WHEREOF, the Parties have executed this First Amendment effective as of the day and year first written above. LANDOWNER 2: TIENTE LIMITED PARTNERSHIP, a SC Limited Partnership Witness 1 By: John E. Dent, General Partner Witness 2 (Notary) STATE OF ) ) ACKNOWLEDGEMENT COUNTY OF ) I, the undersigned notary, do hereby certify that the above subscribed Tiente Limited Partnership, a SC limited partnership, by John E. Dent, its General Partner, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and seal this day of, Notary Public for the State of My Commission Expires: (Seal)

8 IN WITNESS WHEREOF, the Parties have executed this First Amendment effective as of the day and year first written above. LANDOWNER 2: TIENTE LIMITED PARTNERSHIP, a SC Limited Partnership Witness 1 By: Phil Tilghman, General Partner Witness 2 (Notary) STATE OF ) ) ACKNOWLEDGEMENT COUNTY OF ) I, the undersigned notary, do hereby certify that the above subscribed Tiente Limited Partnership, a SC limited partnership, by Phil Tilghman, its General Partner, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and seal this day of, Notary Public for the State of My Commission Expires: (Seal)

9 IN WITNESS WHEREOF, the Parties have executed this First Amendment effective as of the day and year first written above. LANDOWNER 2: TIENTE LIMITED PARTNERSHIP, a SC Limited Partnership Witness 1 By: M.W. Tilghman, Jr., General Partner Witness 2 (Notary) STATE OF ) ) ACKNOWLEDGEMENT COUNTY OF ) I, the undersigned notary, do hereby certify that the above subscribed Tiente Limited Partnership, a SC limited partnership, by M.W. Tilghman, Jr., its General Partner, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and seal this day of, Notary Public for the State of My Commission Expires: (Seal)

10 IN WITNESS WHEREOF, Coastal Carolina National Bank has executed this First Amendment effective as of the day and year first written above. BANK: Witness 1 Witness 2 (Notary) Coastal Carolina National Bank By:_ Its:_ STATE OF SOUTH CAROLINA ) ) ACKNOWLEDGEMENT COUNTY OF HORRY ) I, the undersigned notary, do hereby certify that the above subscribed Coastal Carolina National Bank, by, its, personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and seal this day of, Notary Public for the State of My Commission Expires: (Seal)

11 EXHIBIT D PDD PHASING PLAN Page 1 of 2

12 EXHIBIT D PDD PHASING PLAN Page 2 of 2 (showing Phase 4 detail)

13 EXHIBIT E