The Town of Hilton Head Island
Regular Town Council Meeting
April 22, 2014
4:00 P.M.
AGENDA
As a Courtesy to Others Please Turn Off/Silence All Mobile Devices
During
the Town Council Meeting
1) Call to Order
2) Pledge to the Flag
3) Invocation
4) FOIA Compliance - Public notification of this meeting has been
published, posted, and
mailed in compliance with the Freedom oflnformation Act and the Town of
Hilton Head
Island requirements .
5) Proclamations and Commendations
a. Sexual Assault Awareness and Prevention Month and Child Abuse
Awareness Month
b. Bike Month
6) Approval of Minutes
a. Town Council Meeting-April 1, 2014
7) Report of the Town Manager
a. Heritage Library Request - Linda Piekut, Executive Director
b. Know2 - South Carolina High Education Foundation Request - Jeff
Bradley
c. Town Manager' s Items oflnterest
d. March, 2014 Policy Agenda, Management Targets and CIP Updates
8) Reports from Members of Council
a. General Reports from Council
b. Report of the Intergovernmental Relations Committee - George
Williams, Chairman
c. Report of the Personnel Committee - Lee Edwards, Chairman
d. Report of the Planning & Development Standards Committee -John
McCann, Chairman
e. Report of the Public Facilities Committee - Kim Likins, Chairman
f. Report of the Public Safety Committee - Marc Grant, Chairman
g. Report of the LMO Rewrite Committee- Kim Likins, Ex-Officio Member
9) Appearance by Citizens
Town Council Agenda Pagel
April 22, 2014
Copyrighted Material Omitted
10) Unfinished Business
a. Second Reading of Proposed Ordinance 2014-05
Second Reading of Proposed Ordinance 2014-05 to amend Title 16, "The
Land
Management Ordinance," of the Municipal Code of the Town of Hilton Head
Island,
South Carolina, by amending Section 16-4-102, the Official Zoning Map
with respect to
that certain parcel identified as Parcel 347 A on Beaufort County Tax
Map 12, to apply the
RFZ (Redevelopment Floating Zone Overlay District) to the existing PD-1
(Planned
Development) Zoning District; and providing for severability and an
effective date .
b. Second Reading of Proposed Ordinance 2014-07
Second Reading of Proposed Ordinance 2014-07 to amend the budget for
the Town of
Hilton Head Island, South Carolina, for the fiscal year ending June 30,
2014; to provide
for the expenditures of certain funds; and to allocate the sources of
revenue for the said
funds .
11) New Business
a. First Reading of Proposed Ordinance 2014-08
First Reading of Proposed Ordinance 2014-08 of the Town of Hilton Head
Island, South
Carolina, authorizing the execution of a contract for purchase and sale
and the execution
of a deed for the sale of 10 acres of real property near William Hilton
Parkway and
Mathews Drive to Pineland Associates II, LLC pursuant to the authority
of S.C. Code
Ann. 5-7-40 (Supp. 2011), and 2-7-20, Code of the Town of Hilton
Head Island, South
Carolina, (1983); and providing for severability and an effective date.
12) Executive Session
a. Land Acquisition
(1) Consideration of Sale of Property to Pineland Associates II, LLC
b. Legal Matters
c. Contractual Matters
13) Adjournment
Town Council Agenda Page 2
April 22, 2014
TOWN OF HILTON HEAD ISLAND
Community Development Department
TO: Stephen G. Riley, ICMA-CM, Town Manager
FROM: Charles F. Cousins, AICP, Director of Community Development
DATE: March 27, 2014
SUBJECT: Authorize the Sale of Town Property Near Pineland Station
Recommendation: Staff recommends that Town Council approve first reading of an
ordinance authorizing the sale of approximately 10 acres of Town-owned property
to
facilitate the redevelopment of Pineland Station.
Summary: In 2001 the Town purchased 10 acres on Mathews Drive immediately
behind
Pineland Station with the intent of creating a law enforcement center and
relocating the Town
Court. The purchase price was $1 ,100,385 of which $1 ,000,000 was for the land
and the
remainder was for 18,000 gallons of water and sewer capacity. Later the Town
determined
that locating the law enforcement center elsewhere was a better option so this
property is no
longer needed for its original purpose. The sale of this property to Pineland
Associates
would facilitate the redevelopment of Pineland Station. The sales price would
be $1 ,000,000
and the Town would retain the water and sewer capacity it purchased.
On March 26, 2014 the Public Facilities Committee voted to recommend the
execution of a
contract for this purpose.
Background: The Town purchased 10 acres in 2001 along Mathews Drive to create a
law
enforcement center and to house the Town Court operations. The Town' s 10 acres
is
immediately adjacent to Pineland Station. One of the original ideas behind
selecting this site
was the belief that placing the law enforcement center and courts there would
generate
activity that could reinvigorate this older shopping center. Since that time
the Town decided
to purchase an existing building in the Shelter Cove area and has relocated the
Sheriff to that
site. This land is no longer needed to meet its original intent with the
creation of the law
enforcement center in the Shelter Cove area.
However, the challenges of Pineland Station still exist. Pineland Station is an
older shopping
center with a large number of vacancies that is really showing its age. The
shopping center
also has numerous non-conformities as it was developed prior to the Town's Land
Management Ordinance. The Town's land offers an opportunity to work with the
owner of a
worn out facility to replace much of it and create a new shopping center that
corrects many of
those non-conformities. This proposal would feature the tear down of the
majority of the
buildings on the property and create a more exciting retail space with the Town
recouping its
original investment. The redevelopment would include roughly 20,000 additional
square feet
which is less than would be allowed on the 10 acre Town parcel. Thus the
community will
experience a new shopping center at no financial costs to the Town or any
rezoning to
Town Government Center , One Town Center Court ,
Building C
Hilton Head Island , South Carolina , 29928
843-341-4 757 , (FAX) 843-842-8908
allocate additional square footage. Five acres of the Town's ten acres are
wetlands. These
would be set aside by the developer and not developed.
Attachments: Pineland Station Parcels map and Pineland Station Redevelopment
plan
2
Legend
Town of Hilton Head Island
Pineland Station Parcels
HILTON HEAD ISLAND , S .C. 29928
PHONE (843) 341-4600
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PROPOSED ORDINANCE NUMBER 2014-08 ORDINANCE
NUMBER 2014-
AN ORDINANCE OF THE TOWN OF HILTON HEAD ISLAND, SOUTH CAROLINA,
AUTHORIZING THE EXECUTION OF A CONTRACT FOR PURCHASE AND SALE
AND THE EXECUTION OF A DEED FOR THE SALE OF 10 ACRES OF REAL
PROPERTY NEAR WILLIAM HILTON PARKWAY AND MATHEWS DRIVE TO
PINELAND ASSOCIATES II, LLC PURSUANT TO THE AUTHORITY OF S.C. CODE
ANN. 5-7-40 (SUPP. 2011), AND 2-7-20, CODE OF THE TOWN OF HILTON HEAD
ISLAND, SOUTH CAROLINA, (1983); AND PROVIDING FOR SEVERABILITY AND
AN EFFECTIVE DATE.
LEGISLATIVE FINDINGS
WHEREAS , the Town of Hilton Head Island (hereinafter "Town") owns two
(2) parcels
of real property known as R511-008-000-0156-0000 and R511-008-000-098B-0000
(hereinafter
collectively referred to as the "Town Property"), which is located on Hilton
Head Island,
Beaufort County, South Carolina; and,
WHEREAS, the Town has agreed to sell the Town Property to Pineland
Associates II,
LLC in accordance with the terms and conditions set forth in that certain
Contract for Purchase
and Sale, a copy of which is attached hereto as Exhibit "A" (the "Contract");
and,
WHEREAS , under the provisions of S.C. Code Ann. 5-7-40 (SUPP. 2011)
and 2-7-
20, Code of the Town of Hilton Head Island, South Carolina, (1983), the
conveyance or granting
of an interest in real property owned by the Town of Hilton Head Island must be
authorized by
Ordinance.
NOW THEREFORE, BE IT ORDERED AND ORDAINED BY THE TOWN
COUNCIL FOR THE TOWN OF HILTON HEAD ISLAND, SOUTH CAROLINA, AS
FOLLOWS:
Section 1. Execution of Agreement.
(a) The Mayor and Town Manager are hereby authorized to execute and
deliver the
Contract in a substantially similar form to that attached hereto
as Exhibit "A" for the
conveyance of Town-owned real property to Pineland Associates II,
LLC; and
1
(b) The Mayor and/or Town Manager are hereby authorized to take such
other and
further actions as may be necessary to complete the transactions
contemplated in the
Contract as authorized hereby, including the execution and
delivery of the Deed and
all other documents called for in the Contract.
Section 2. Severability.
If any section, phrase, sentence or portion of this Ordinance is, for
any reason, held or
deemed to be invalid or unconstitutional by any court of competent
jurisdiction, then such
section, phrase, sentence or portion shall be deemed a separate, distinct and
independent
provision and shall not affect the remaining portion thereof.
Section 3. Effective Date.
This Ordinance shall become effective upon adoption thereof by the
Town Council for
the Town of Hilton Head Island, South Carolina.
PASSED, APPROVED AND ADOPTED BY THE TOWN COUNCIL FOR THE
TOWN OF HILTON HEAD ISLAND, SOUTH CAROLINA, ON THIS DAY OF
- - - - - - - - - - -, 2014.
Drew A.
Laughlin, Mayor
ATTEST:
Victoria L. Pfannenschmidt, Town Clerk
First Reading:
Second Reading:_ _ _ _ _ _ _ _ __
Approved as to form: _ _ _ _ _ _ _ _ _ _ _ _ __
Gregory M. Alford, Town Attorney
Introduced by Council Member:_ _ _ _ _ _ _ _ __
2
CONTRACT FOR PURCHASE AND SALE OF:
+/- 10 Acres near William Hilton Parkway and Mathews Drive
on Hilton Head Island, South Carolina:
By and Between
The Town of Hilton Head Island, South Carolina,
and
Pineland Associates II, LLC
Dated as of: May ~ = -
, 2014
STATE OF SOUTH CAROLINA )
) SALE AND PURCHASE
AGREEMENT
COUNTY OF BEAUFORT )
This Agreement (hereinafter the "Agreement") is made and entered into by
and between
The Town of Hilton Head Island, South Carolina (hereinafter, the "Seller"), and
Pineland
Associates II, LLC (hereinafter, the "Purchaser") on this __ day of May, 2014.
W IT N E S S E T H:
1. Sale and Purchase: For and in consideration of the Purchase Price
set forth in Article 3
of this Agreement to be paid to Seller by Purchaser, and in further
consideration of the full and
faithful performance of the covenants, conditions and agreements hereinafter
set forth to be
performed, fulfilled and observed by Seller and Purchaser, and subject to the
fulfillment of the
Conditions set forth in Article 8 of this Agreement, Seller agrees to sell and
Purchaser agrees to
purchase from Seller that certain real property located on Hilton Head Island,
Beaufort County,
South Carolina, and which is described in Articles 1.1 and 1.2 of this
Agreement.
1.1 Real Property: The Real Property is hereinafter referred to as the "Real
Property" or the
"Property" and is described as follows:
ALL that certain piece, parcel or tract of land situate, lying and being
in the Town
of Hilton Head Island, Beaufort County, South Carolina, shown and
described as
Parcel C (Mathews Drive Parcel) on a plat dated March 29, 1982 and
recorded in
the Office of the Register of Deeds for Beaufort County, South Carolina,
in Plat
Book 30 at Page 112. Said property being more fully described in that
certain
deed of Pineland Mall Associates, L.P. , dated January 30, 2001 , and
recorded in
the Office of the Register of Deeds for Beaufort County, South Carolina
on
January 31 , 2001 in Official Record Book 13 79 at Page 1319.
Beaufort County TMS#: R511-008-000-0156-0000
Page 1 of 19
AND ALSO:
ALL that certain piece, parcel or tract of land situate, lying and being
in the Town
of Hilton Head Island, Beaufort County, South Carolina, shown and
described as
containing 8.35 acres on a plat dated March 29, 1982 and recorded in the
Office
of the Register of Deeds for Beaufort County, South Carolina, in Plat
Book 30 at
Page 112. Said property being more fully described in that certain deed
of
Pineland Mall Associates, L.P. , dated January 30, 2001 , and recorded in
the
Office of the Register of Deeds for Beaufort County, South Carolina on
January
31 , 2001 in Official Record Book 13 79 at Page 1319.
Beaufort County TMS#: R511-008-000-098B-0000
This being the same property conveyed to The Town of Hilton Head Island,
South
Carolina by deed of Pineland Mall Associates, L.P. , dated January 30,
2001 , and
recorded in the Office of the Register of Deeds for Beaufort County,
South
Carolina on January 31 , 2001 in Official Record Book 13 79 at Page 1319.
1.2 Intangible Personal Property:
(a) In connection with the Real Property, Seller may have (i) obtained
certain
governmental permits and approvals and (ii) obtained certain contractual
rights and other
intangible assets, which are hereinafter referred to as the "Intangible
Personal Property"
and which are described as follows:
(i) Any and all contract rights, declarant rights, access
rights or easements,
utility easements, covenant rights burdening other
property in favor of the
Real Property, easements, rights with respect to lands or
marshlands lying
below the S. C. D. H. E. C. - 0. C.R. M. Critical Line,
development plan
approvals, zoning rights or approvals, development
permits, utility
allocations, State, Federal or Local governmental permits
and approvals,
S. C. D. H. E. C. - 0. C. R. M. Permits; United States
Army Corps of
Engineers Permits; and,
(ii) Any and all rights, funds, rights to funds , including
deductibles, associated
with or related to any pending or previous environmental
cleanup affecting
the Real Property; and,
(iii) Any and all other rights, contracts, easements, contract
rights or
governmental or other approvals, regardless of
description, which affect,
touch or concern the Real Property in any way, shape or
form, regardless
of description, except the 18,000 gallons per day of water
and sewer
capacity with Hilton Head Island Number 1 Public Service
District as
reflected in Article 1. 4 herein below.
Page 2 of 19
(b) It shall be agreed between Seller and Purchaser that the
eighteen thousand
(18 ,000) gallons per day of water and sewer capacity with Hilton Head
Island Number 1
Public Service District shall not be included in the Intangible Personal
Property conveyed
by Seller to Purchaser, as reflected in Article 1.4 herein below.
1.3 Definition of the "Property ": Both the Real Property and the Intangible
Personal
Property are hereinafter referred to collectively as the "Property".
1.4 Water and Sewer Capacity Rights: Pursuant to that certain
"Contract for Purchase and
Sale of 10.39 Acres, More or Less", dated January 9, 2001 between Seller and
Pineland Mall
Associates, a South Carolina Limited Partnership, and pursuant to that certain
"Prorata
Assignment of Water and Sewer Service", dated January 31 , 2001 between
Pineland Mall
Associates and Seller, and acknowledged by Hilton Head # 1 Public Service
District, Pineland
Mall Associates assigned all of its allocated water and sewer capacity
(consisting of 18,000
gallons per day) with the Hilton Head #1 Public Service District pertaining to
Parcel C and
Parcel D, Pineland Mall to Seller. Seller and Purchaser hereby agree that the
aforementioned
"Prorata Assignment of Water and Sewer Service" and its terms shall remain in
force and shall
not be altered in any way, nor shall such water and sewer rights be conveyed or
otherwise
transferred from Seller to Purchaser, in connection with this Agreement or the
transactions
contemplated therein.
2. Current Survey: Purchaser shall have prepared, at its own cost
and expense, an
updated current boundary and as-built survey or ALT A survey of the Property,
prepared for and
certified to Purchaser.
2.1 Delivery of Documents: Seller shall, within fifteen (15) days
of the Effective Date
of this Agreement and upon demand by Purchaser, tender to Purchaser copies of
the following
documents in Seller's possession:
Page 3 of 19
(a) Any existing title insurance policies in the possession of
Seller or Seller's attorney
insuring title to the Real Property.
(b) Copies of any documents evidencing utility allocations or
capacity or other
contracts benefiting the Real Property.
(c) Any and all documents relating to any rights or obligations
which run to or from
the Real Property.
(d) Copies of all engineering studies, wetland delineations,
environmental studies,
surveys and the like of the Real Property which are in Seller's
possession. Such studies
may be given with appropriate disclaimers.
(e) Copies of any reports, studies or documentation of any type
pertaining to any
ongoing or previous environmental cleanup affecting the Real
Property.
3. Purchase Price: The Purchase Price for the Property is One
Million and 00/100
Dollars ($1 ,000,000.00) (hereinafter, the "Purchase Price"), which shall be
paid in cash or its
equivalent at the closing of the transactions contemplated in this Agreement
(the "Closing").
3 .1 Payment of Purchase Price: Upon execution of this Agreement by all
parties, Purchaser
shall deposit with Escrow Agent hereinafter described, in the amount of Twenty
Thousand and
00/100 Dollars ($20,000.00) (the "Escrow Deposit"), which shall be held in
escrow pending
compliance with this Agreement by Seller and Purchaser. At Closing, Purchaser
shall pay to
Seller the balance of the Purchase Price by certified check made payable to
Seller, or by a wire
transfer of cleared funds to the account of Seller at a financial institution
which is designated by
Seller. Seller shall give written notice of how it wishes for the purchase
price to be paid,
together with written bank wire instructions, if applicable, no later than
three (3) business days
prior to the Closing Date.
4. Title: Seller shall provide Purchaser with good and marketable
title to the Property by
Deed of General Warranty, free and clear of any and all monetary liens and
encumbrances, the
form which is attached hereto as Exhibit "A".
Page 4 of 19
4.1. Title Evidence: Purchaser may obtain a current ALTA Owner's
Title Insurance
Commitment (the "Commitment") underwritten on, and issued by, a Title Insurance
Company of
Purchaser's choosing (hereinafter, the "Title Company"), by which Commitment
the Title
Company shall agree to insure fee simple marketable title to the Real Property
in the name of
Purchaser in an amount equal to the Purchase Price. Seller and Purchaser
understand and agree
that as of the date of the Title Commitment and the Closing Date, fee simple
marketable title to
the Property shall be vested in Seller, and the Commitment shall show and
evidence:
(a) That fee simple, marketable title to the Real Property is vested
in Seller;
(b) That title to the Real Property is in the condition required by
this Article 4. The
cost of, or premium associated with, the Commitment, and any Final
Policy of Title
Insurance issued thereon, shall be the responsibility of and shall be
paid for by Purchaser.
4.2. Objections to Title: If Purchaser's title examination or the
Commitment shall reveal
that Seller's title to the Real Property is subject to any easements,
covenants, clouds on or to the
title, encroachments, boundary discrepancies, liens, encumbrances, or any other
matter affecting
title, or Purchaser's proposed use of the Real Property, then Purchaser shall
notify Seller, in
writing, of such title defects and Purchaser's objection to the same within ten
(10) days after
Purchaser's receipt of the Commitment and copies of all of the documents
referred to in the
Commitment. Upon such notification, the same shall be treated as defect(s)
in title ("Title
Defects"). Unless Purchaser delivers said written objections within the said
ten (10) day period
following the delivery of the Commitment, it shall be conclusively deemed that
Purchaser has
accepted title to the Real Property in its then-existing condition.
4.3. Seller's Right to Cure: Seller shall have thirty (30) days from
receipt of
Purchaser's written notice of any Title Defects to Cure (hereinafter defined),
or to cause to be
Cured, the Title Defects. Seller agrees to use its best efforts and due
diligence in Curing, or in
Page 5 of 19
causing to be Cured, the Title Defects. If said thirty (30) day period given
Seller to Cure the
Title Defects shall extend beyond the Closing Date, and Seller does not Cure,
or cause to be
Cured, the Title Defects before the Closing Date, then closing shall be held
within ten (10) days
after Seller delivers written notice to Purchaser that the Title Defects have
been Cured. "Cured"
as used herein means that a title insurance company authorized to do business
in South Carolina
and a member of the American Land Title Association will issue a Title
Insurance Policy
insuring title to the Real Property at standard rates and with only the
standard exceptions and, if
such title insurance company is not the Title Company, Seller's agreement to
pay any cost of
such Title Insurance Policy in excess of the cost that would have been charged
by the Title
Company.
4.4. Seller's Failure to Cure: If Seller cannot Cure, or cause to be
Cured, the Title
Defects within the said thirty (30) day period, or within such longer period to
which Seller and
Purchaser may agree in writing, then Purchaser shall have the option of:
(a) Closing this transaction in accordance with the terms and
conditions hereof, and
accepting title to the Real Property in its then-existing condition by
deed, taking
exception to such uncured Title Defects, with such adjustments to the
purchase price as
are agreed to by the Parties; or,
(b) Terminating this Agreement, whereupon Purchaser shall be
refunded the entire
Escrow Deposit together with any interest accrued thereon, and Seller
and Purchaser shall
thereafter be released from any and all further obligations or
liabilities to one another
arising under or out of this Agreement.
4.5. Subsequent Matters: Seller acknowledges that a period of days will
elapse between the
delivery of the Commitment as required herein and Closing. Acceptance of the
Commitment by
Purchaser shall not be deemed a waiver of any Title Defect arising between the
date of delivery
of the Commitment and the date of Closing.
Page 6 of 19
(a) Purchaser shall notify Seller of any Title Defects arising
subsequent to delivery of
the Title Commitment prior to closing.
(b) Upon notification to Seller by Purchaser of any Title Defects
arising subsequent
to delivery of the Title Commitment, the "Cure" provisions of Article
4.3 and 4.4 shall
become effective.
4.6 Commercial Shopping Center: It is understood and agreed to by
the parties that the
Property (excluding the portions which are jurisdictional wetlands) shall be
developed by the
Purchaser as a commercial shopping center (including single user freestanding
buildings) in
conjunction with the substantial redevelopment of property which is adjacent to
the Property and
known as Beaufort County Tax Map # : R511-008-000-098E-0000, within two (2)
years of the
date of recording of the Deed referenced in Article 4 herein above, in
accordance with all
applicable federal, state, and local laws and regulations, including but not
limited to the Land
Management Ordinance of the Town of Hilton Head Island, South Carolina.
Specifically, the
Property shall be developed by the Purchaser, in conjunction with the
aforementioned adjacent
property, as a multi-tenant commercial facility that is substantially in
conformance with the
Conceptual Site Plan attached hereto as Exhibit "B", except as otherwise
consented to in writing
by the Seller, which consent Seller agrees will not be unreasonably withheld,
delayed or
conditioned. It is agreed by the parties that this Article 4.6 is a material
element of this
Agreement and Seller is relying on its terms in the execution of this
Agreement. The provisions
of this Article 4.6 shall survive Closing, and any violation of the terms of
this Article 4.6 shall
serve as a Default to this Agreement, and Seller reserves the right to seek any
legal or equitable
remedies for the enforcement of the same.
5. Closing: This transaction shall be "Closed" and title to the
Property shall be
conveyed from Seller to Purchaser by delivery of the Deed (hereinafter defined)
and other
Page 7 of 19
documents required herein from Seller to Purchaser (hereinafter the "Closing")
at 10:00 o'clock
A. M. on the Closing Date (hereinafter defined) at the Office of Purchaser's
Attorney, or at such
other place as Purchaser and Seller shall mutually agree in writing. Subject to
fulfillment of all
of Seller's obligations and any conditions hereunder, the Closing, unless
otherwise modified or
extended by mutual agreement of Seller and Purchaser in writing, shall occur on
or before ninety
(90) days after Condition Satisfaction Date as defined in Article 8 below (the
"Closing Date").
5 .1. Seller's Obligations at Closing: At Closing, Seller shall deliver
to Purchaser, at
Seller's expense, the following Closing Documents:
(a) A good and sufficient General Warranty Deed (the "Deed") so as
to convey to
Purchaser Fee Simple, Marketable Title to the Real Property, as
provided in Article 4
above. The Deed shall be in recordable form, with documentary stamps
(if any) affixed,
executed by Seller and duly acknowledged before a Notary Public.
(b) A "Certification by Entity Transferor," certifying that Seller
is not a "foreign
person" as that term is used and defined in Section 1445 (f)(3) of the
Internal Revenue
Code of 1986, as amended.
(c) A mechanic's lien affidavit, duly executed by Seller and
acknowledged before a
notary public, attesting to the absence, unless otherwise provided for
in this Agreement,
or unless created by acts of Purchaser, of any claims of lien or
potential lienors and
further attesting that there have been no improvements to the Real
Property for ninety
five (95) days immediately preceding the Closing Date for which the
cost thereof remains
unpaid.
(d) A South Carolina residency affidavit certifying the address,
Residence and
Federal Identification Number of Seller to establish the withholding
requirements of S. C.
Code Ann. 12-9-310 (Supp. 2011), and South Carolina Revenue Ruling
Number 90-3.
(e) Full and complete releases, in recordable form, of any
mortgages, liens, claims or
other encumbrances to the title of the Real Property, except as may be
otherwise provided
in Article 4 above.
(f) Such other documents as Purchaser, Purchaser's Attorney or
Purchaser's Title
Insurance Company may reasonably require or deem as necessary to convey
the Property
to Purchaser in accordance with the terms and provisions of this
Agreement.
(g) Certified copy of the Resolution of the Town Council authorizing
the execution of
Page 8 of 19
this Agreement.
(h) Certified copy of the Ordinance of the Town Council authorizing
the sale of the
Real Property and execution of the above-referenced Closing Documents.
(i) Certified copy of the Minutes of the Town Council meetings
wherein the
Resolution and Ordinance referenced in Articles 5.1 (g) and (h) above
were approved.
5.2. Purchaser's Obligations at Closing: At Closing, Purchaser shall deliver
to Seller, at
Purchaser's expense, the following:
(a) The balance of the Purchase Price.
(b) Such other documents as Seller or Seller's attorney may
reasonably require or
deem necessary to convey the Property to Purchaser in accordance with
the terms and
provisions of this Agreement.
5.3. Escrow Agent: The Escrow Agent shall serve as Closing Agent for all
Parties at Closing.
Deposit with the Escrow Agent of the Purchase Price, the instruments of
conveyance and such
other funds and/or documents as are required of either Party under the terms of
this Agreement,
and/or the Title Company, shall be deemed to be a good and sufficient tender of
performance in
accordance with the terms hereof Seller shall pay all fees and charges of the
Escrow Agent.
6. Default by Purchaser: Except as may be otherwise expressly provided or
limited herein
with respect to any specific act or omission, if Purchaser shall default in any
of its obligations,
covenants, or agreements contained within this Agreement or any of the Exhibits
hereto, and
shall remain in default after ten (10) day's written notice specifying the
default and demanding
that the default be cured, then Seller shall be entitled to receive The Escrow
Deposit as liquidated
damages as its sole and exclusive remedy. The provisions of this Article 6
shall be binding upon
the successors and assigns of Purchaser, and shall survive the Closing of the
transaction
contemplated herein.
7. Default by Seller: Except as may be otherwise expressly provided or
limited herein
Page 9 of 19
with respect to any specific act or omission, if Seller shall default in any
other obligations,
covenants, or agreements contained within this Agreement or any of the Exhibits
hereto, and
shall remain in default after ten (10) day's written notice specifying the
default and demanding
that the default be cured, then Purchaser shall be entitled to pursue any
remedy at law or in
equity against Seller, including an action for damages or for Specific
Performance of this
Agreement. The provisions of this Article 7 shall be binding upon the
successors and assigns of
Seller, and shall survive the Closing of the transaction contemplated herein.
8. Conditions to Purchaser's Obligation to Close: The obligation
of Purchaser to
purchase the Property from Seller is subject to satisfaction, as of the Closing
Date, of the
following conditions (any of which may be waived, in writing, in whole or in
part by Purchaser
at or prior to Closing):
(a) All of the representations and warranties of Seller set forth
herein shall be true on
and as of the Closing in all respects, as though such representations
and warranties were
made at and as of the Closing; and all covenants, agreements and
documents required of
Seller in this Agreement shall have been performed, complied with or
delivered (as the
case may be) in accordance with this Agreement.
(b) The Property shall not be in material violation of any
governmental laws,
ordinances, rules or regulations, and there shall be no action, suit or
proceeding pending
or filed against or affecting the Property or any portion thereof, or
relating to or affecting
or arising out of the ownership or development of the Property or any
portion thereof, in
any state or federal court or by any federal, state, county or
municipal department,
commission, board bureau, or agency or other governmental
instrumentality.
(c) The receipt by Purchaser of a Jurisdictional Determination from
the U.S. Army
Corps of Engineers (the "Corps") confirming that the Property contains
no more than
five (5) acres of wetlands that are subject to the jurisdiction of the
Corps and that the non-
wetlands acreage is in a location (or locations) and in a configuration
satisfactory to
Purchaser;
(d) Purchaser's obtaining a financing commitment satisfactory to it for
cost of the
acquisition of the Property and development and construction of the
Project; and
(e) Purchaser's receipt of an environmental assessment of the
Property satisfactory to
Page 10 of 19
it, which assessment shall be coordinated and paid for by Purchaser and
not Seller.
In the event any of the above stated conditions is not satisfied or waived in
writing by Purchaser
prior to Closing, this Agreement shall terminate on the Option of Purchaser,
any Escrow Deposit
and any accrued interest thereon shall be returned to Purchaser, and neither
Party shall have any
further obligation or rights with respect to the other. Purchaser shall notify
Seller when all of the
conditions set forth in clauses (c) through (e) above have been satisfied. The
date of such notice
shall be the "Condition Satisfaction Date." If the Condition Satisfaction Date
does not occur on
or before September 30, 2014, then either party may terminate this Contract by
written notice to
the other, in which event the Escrow Deposit shall be refunded to Purchaser and
neither party
shall have any further rights against or obligations to the other.
9. [Omitted]
10. Representations and Warranties of Seller: To induce Purchaser to
enter into this
Agreement and to purchase the Property, Seller represents and warrants (which
representations
and warranties shall survive the Closing) to Purchaser as follows:
(a) As of the date of this Agreement and as of the date of Closing,
Seller will have all
requisite legal power and authority to execute and deliver the Deed and
other documents
to be delivered pursuant to this Agreement. The individual( s) executing
this Agreement
on behalf of Seller has, and as of the date of Closing will have,
express authority and full
power on behalf of Seller to enter into and deliver this Agreement and
the Deed and other
documentation required hereunder.
(b) Other than work or material contracted for by Purchaser, as of
the Closing, no
work will have been performed or will be in process at the Property, and
no materials will
have been delivered to the Property that might provide the basis for the
filing of a
Mechanic's, Materialman's or other lien against the Property or any
portion thereof. The
requirements set forth in this Article 10(b) shall be deemed satisfied
if the Title
Company, based upon Seller's mechanic's lien affidavit, is willing to
give Purchaser
affirmative mechanic's lien coverage.
(c) There has been no deferral of taxes with respect to this
Property.
Page 11 of 19
(d) Other than is expressly provided for herein, Seller shall not
grant any easements,
or enter into any covenants or agreements concerning the Property or
title to the Real
Property, or in any other way affect the Property or title to the Real
Property without the
written consent of Purchaser.
(e) There are no rights or claims of parties in possession not
shown by the Public
Records for Beaufort County, South Carolina; and there is no
litigation now pending or
threatened against Seller which would materially affect the Property,
title to the Real
Property, the execution, delivery or enforceability of this Agreement,
or Seller's
performance or other obligations hereunder.
(f) No options, leases or other contracts are still outstanding
which give any other
party a right to purchase the Real Property.
11. Brokers: Seller and Purchaser warrant and represent that no
broker, finder, or other
person is entitled to a commission, finder's fee or other compensation in
connection with this
Agreement, and Seller shall indemnify and hold harmless the other party from
any and all
claims, liabilities, losses, damages, costs and expenses arising from the claim
of any other
broker, finder or other person for such compensation, arising by, under or
through such party.
The obligations under this Article 11 shall survive the Closing.
12. Effective Date: The "Effective Date" of this Agreement shall
be the date upon
which the officials of The Town of Hilton Head Island, South Carolina, execute
and deliver this
Agreement to Seller.
13. Miscellaneous:
13 .1. Assignability: This Agreement may not be assigned by either Purchaser
or Seller without
the express written consent of both parties, except that Purchaser may assign
its rights under this
Agreement to an entity or entities that is or are controlled by Jon S. Wheeler
and/or Wallace
Cahoon without Seller's consent. Purchaser shall notify Seller, in
writing, each time that
Purchaser assigns and/or otherwise transfers any interest in this Agreement to
any other entity.
Such notification shall include the legal name of the acquiring entity, the
current address and the
Page 12 of 19
name of a contact person at that entity, and the amount of interest
transferred. Any assignee or
entity acquiring any rights under this Agreement shall execute a document
acknowledging this
Agreement and agreeing to be bound by its terms, in a form reasonably
satisfactory to Seller.
13.2 Binding Effect: This Agreement shall inure to the benefit of and shall
be binding upon
Seller and Purchaser and their respective successors and assigns.
13.3. Amendment, Changes and Modifications: Except as otherwise
provided herein, this
Agreement may not be effectively amended, changed, modified or altered without
the written
consent of both parties hereto.
13.4. Severability: In the event that any provision of this Agreement shall
be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render
unenforceable any other provision hereof
13.5. Execution in Counterparts: This Agreement may be simultaneously
executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the
same instrument.
13.6. Applicable Law: This Agreement shall be governed by and construed in
accordance with
the laws of the State of South Carolina.
13.7. Captions: The captions or headings herein are for convenience only
and in no way
define, limit or describe the scope or intent of any provisions or sections of
this Agreement.
13.8. Recording: The parties hereto may not record this Agreement, or a
short form
Memorandum thereof, in the Office of the Register of Deeds for Beaufort County,
South
Carolina.
13.9. Plural/Singular: Where appropriate, the use of the singular
herein shall include and
be deemed to be the plural, and the use of the plural herein shall be deemed to
include the
Page 13 of 19
singular.
13.10. No Third Party Beneficiaries:The Parties hereto affirmatively represent
that this
Agreement is made solely for the benefit of the parties hereto and their
respective successors and
assigns and not for the benefit of any third party who is not a signature party
hereto. No party
other than the signature parties and their respective successors and assigns
hereto shall have any
enforceable rights hereunder, or have any right to the enforcement hereof, or
any claim for
damages as a result of any alleged breach hereof
13 .11. Notices: All notices, applications, requests, certificates or other
communications
hereunder shall be sufficiently given and shall be deemed given when delivered
in person, or
mailed by certified mail, return receipt requested, postage prepaid (in such
case, delivery shall be
deemed complete upon mailing), addressed as follows, or to such other place as
may be
designated in writing by the parties:
To Seller: THE TOWN OF HILTON HEAD ISLAND
Stephen G. Riley, Manager
One Town Center Court
Hilton Head Island, SC 29928
With Copy to : Gregory M. Alford, Esq.
Alford Law Firm, LLC
Post Office Drawer 8008
Hilton Head Island, SC 29938-8008
To Purchaser: Pineland Associates II, LLC
c/o Wheeler Interests, Inc.
Attn: Jon S. Wheeler
Riversedge North
2529 Virginia Beach Blvd., Suite 200
Virginia Beach, VA 23452
With Copy to : Charles E. Land, Esquire
c/o Kaufman & Canoles, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Page 14 of 19
13.12. Further Assurances and Corrective Documents: Seller and
Purchaser agree to do,
execute, acknowledge, deliver or cause to be done all such further acts as may
be reasonably
determined to be necessary to carry out this Agreement and give effect hereto.
Seller and
Purchaser agree that each shall, upon request, execute and deliver such other
or corrective
documents, or any such document as may be requested by any governmental or
regulatory
agencies, including but not limited to any such documents relating to any
pending or previous
environmental cleanup affecting the Real Property, as may be reasonably
determined to be
necessary, either before or after the Closing. The obligations of this Article
13.12 shall survive
the Closing.
14. Possession: Possession of the Property shall be delivered to
Purchaser at Closing,
provided, however, that the Purchase Price, minus adjustments and prorations,
is paid in full by
or on behalf of Purchaser at Closing.
15. Prorations: Payment of the following is to be pro-rated between
Seller and Purchaser
as of the Closing Date:
(a) Real Property Taxes and Assessments, if any, shall be made on
the basis of the
current year's tax with due exemptions, if allowed for the said year.
If Closing occurs on
a date when the current year's taxes are not fixed, taxes will be
apportioned based upon
the prior year's taxes plus ten (10%) per cent. Any tax apportionment
based upon an
estimate shall be recalculated when the property taxes are finally
fixed, and Seller or
Purchaser, as the case may be, shall make payment to the other based
upon such
recalculation. The provisions of this Article 15 shall survive the
Closing and delivery of
the Deed.
16. Closing Costs:
16.1. Seller's Closing Costs: Seller shall be responsible to pay for
the Cost of:
(a) Any documentary stamp expense or taxes which may be payable to
the State of
South Carolina and/or the County of Beaufort, and any other fees or
charges payable by
reason of the execution, delivery and recording of the Deed, excluding
any transfer fee(s)
Page 15 of 19
payable to the Town of Hilton Head Island, South Carolina and/or any
other applicable
entity, which shall be paid by Purchaser; and,
(b) Any other Seller's Closing Costs which are customary in Beaufort
County, South
Carolina.
16.2. Purchaser's Closing Costs: Purchaser shall be responsible to pay
the cost of:
(a) Recording of the Deed and any Town of Hilton Head Island, South
Carolina,
Transfer Fee and any other applicable transfer fee(s) ;
(b) The Cost of any title insurance premium chargeable for the
Commitment and any
policy of Title Insurance issued therefrom; and,
(c) Any other Purchaser Closing Costs which are customary in
Beaufort County,
South Carolina.
17. Attorney's Fees and Costs: If any legal action or other proceeding
is brought for the
enforcement of this Agreement, or because of a dispute, breach, default or
misrepresentation in
connection with any of the provisions of this Agreement, the successful or
prevailing party or
parties shall be entitled to recover its reasonable attorney's fees and any
costs incurred as a result
of any such dispute, whether incurred before the institution of suit or after
the commencement of
suit, including appellate proceedings, in addition to any other relief to which
the prevailing party
is entitled.
18. Damage or Risk of Loss: The risk of loss or complete or partial
destruction of the
Property shall rest with Seller up to the time that the Closing occurs. If the
Property is damaged,
but repairable prior to Closing, Seller has the option of repairing and
proceeding. If the Property
is damaged, but un-repairable prior to Closing, Purchaser shall be entitled to
a return of any
Escrow Deposit together with any accrued interest thereon, and this Agreement
shall be
terminated, and neither party shall have any further rights or obligations with
respect to the other.
19. Condemnation: If, between the date of this Agreement and the
Closing, a taking or
Page 16 of 19
condemnation of the Property is threatened or commenced by any party or entity
other than
Purchaser, Purchaser may elect, in writing, within five (5) days after receipt
of notice from Seller
of such taking or condemnation, accompanied by information regarding the amount
and payment
of the condemnation proceeds, to terminate this Agreement or to purchase the
Property without
regard to such condemnation. If Purchaser fails to notify Seller of
Purchaser's election,
Purchaser will be deemed to have elected to proceed with the purchase of the
Property without
regard to such taking or condemnation. In the event Purchaser elects to
purchase, Seller shall
have no obligation to repair or replace any of the Property destroyed, nor
shall the purchase price
be adjusted. If Purchaser elects to terminate this Agreement, Purchaser shall
notify Seller of
such election in writing; this Agreement shall be of no further force and
effect; Escrow Agent
shall immediately return the Deposit to Purchaser; and Seller shall be entitled
to receive any
condemnation awards payable as a result of such taking or condemnation. If
Purchaser elects to
purchase the Property despite such taking or condemnation Seller shall assign
its rights to and
Purchaser shall be entitled to receive any condemnation awards payable as a
result of such taking
or condemnation. However, in the event Seller determines that the amount of
condemnation
awards payable as a result of such taking or condemnation exceeds the Purchase
Price, Seller
may elect at any time and in their sole discretion to terminate this Agreement
and retain and
receive all rights to such condemnation awards, and Purchaser shall be entitled
to the return of all
deposits paid, and neither party shall have any further rights or obligation
against the other.
Nothing in this Article shall apply to any taking or condemnation instigated by
Purchaser.
20. Escrow Agent: The "Escrow Agent" shall be Gregory M. Alford,
Alford Law
Firm, LLC, 18 Executive Park Road, Building 1, Hilton Head Island, South
Carolina 29928, P.O.
Drawer 8008, Hilton Head Island, South Carolina 29938 . If any dispute should
arise as to
Page 17 of 19
whether Escrow Agent is obligated to deliver any Escrow Deposit, or any funds
or documents
which it holds, Escrow Agent shall not be required to make delivery thereof,
but, in such event
shall hold the same until receipt, by Escrow Agent, of written authorization
from Seller and
Purchaser directing the disposition of the same. In the absence of such written
authorization,
Escrow Agent may hold any Escrow Deposit, or any other funds or documents in
connection
with this transaction in its possession until a final determination of the
rights of the Parties by a
Court of competent jurisdiction. If such written authorization is not given or
proceedings for
such determination are not begun and diligently continued, Escrow Agent may
institute an
appropriate proceeding for leave to place any Escrow Deposit, or any other
funds or documents
in connection with this transaction in its possession with the Clerk of Court
for Beaufort County,
South Carolina, pending such determination. Escrow Agent shall not be charged
with notice of
any fact or circumstance unless and until written notice of the same is
received by Escrow Agent.
Upon making the delivery of the funds or documents which Escrow Agent may hold
in
accordance with the provisions of this Article 20, Escrow Agent shall have no
further obligation
or liability to Purchaser and Seller, and Purchaser and Seller agree to
indemnify and hold Escrow
Agent harmless from any such liability.
21. Matters Subsequent to Closing: Seller acknowledges that
it has obligations
under this Agreement to be fulfilled subsequent to Closing. Seller acknowledges
that all such
obligations survive the Closing whether or not a specific statement to that
effect is set forth in
connection with each such obligation.
(SIGNATURE PAGE FOLLOWS)
Page 18 of 19
IN WITNESS WHEREOF, Seller and Purchaser caused their duly authorized
officers and
representatives to execute this Agreement as of the date and year first above
written.
WITNESSES: THE TOWN OF HILTON HEAD ISLAND,
SOUTH CAROLINA
By: _ _ _ _ _ _ _ _ _ _ _ _ __
Drew A. Laughlin, Mayor
---------------
Attest: - - - - - - - - - - - - -
Stephen G. Riley, Town
Manager
WITNESSES: PINELAND AS SOCIATES II, LLC
By: _ _ _ _ _ _ _ _ _ _ _ _ __
Jon S. Wheeler, Manager
Page 19 of 19
EXHIBIT "A"
DEED
STATE OF SOUTH CAROLINA )
) GENERAL WARRANTY DEED
COUNTY OF BEAUFORT )
KNOW ALL MEN BY THESE PRESENTS, that THE TOWN OF HILTON HEAD
ISLAND, SOUTH CAROLINA ("Grantor") in the State aforesaid and in consideration
of the
sum of ONE MILLION AND 00/100 DOLLARS ($1,000,000.00) and no other
consideration
to it in hand paid at and before the sealing of these presents by PINELAND
ASSOCIATES II,
LLC ("Grantee"), having an address of c/o Wheeler Interests, Inc., Riversedge
North, 2529
Virginia Beach Boulevard, Suite 200, Virginia Beach, Virginia 23452 , in the
State aforesaid, the
receipt whereof is hereby acknowledged, has granted, bargained, sold and
released, and by these
Presents does grant, bargain, sell and release unto the said Grantee, its
successors and assigns
forever, in the following described property:
ALL that certain piece, parcel or tract ofland situate, lying and being
in the Town
of Hilton Head Island, Beaufort County, South Carolina, shown and
described as
Parcel C (Mathews Drive Parcel) on a plat dated March 29, 1982 and
recorded in
the Office of the Register of Deeds for Beaufort County, South Carolina,
in Plat
Book 30 at Page 112. Said property being more fully described in that
certain
deed of Pineland Mall Associates, L.P., dated January 30, 2001 , and
recorded in
the Office of the Register of Deeds for Beaufort County, South Carolina
on
January 31 , 2001 in Official Record Book 13 79 at Page 1319.
Beaufort County TMS#: R511-008-000-0156-0000
AND ALSO :
ALL that certain piece, parcel or tract of land situate, lying and being
in the Town
of Hilton Head Island, Beaufort County, South Carolina, shown and
described as
containing 8.35 acres on a plat dated March 29, 1982 and recorded in the
Office
1
of the Register of Deeds for Beaufort County, South Carolina, in Plat
Book 30 at
Page 112. Said property being more fully described in that certain deed
of
Pineland Mall Associates, L.P., dated January 30, 2001 , and recorded in
the
Office of the Register of Deeds for Beaufort County, South Carolina on
January
31 , 2001 in Official Record Book 13 79 at Page 1319.
Beaufort County TMS#: R511-008-000-098B-0000
This being the same property conveyed to The Town of Hilton Head Island,
South
Carolina by deed of Pineland Mall Associates, L.P. , dated January 30,
2001 , and
recorded in the Office of the Register of Deeds for Beaufort County,
South
Carolina on January 31 , 2001 in Official Record Book 13 79 at Page
1319.
This Deed was prepared in the law offices of Alford Law Firm, LLC, Post
Office
Drawer 8008, Hilton Head Island, South Carolina, 29938-8008, by Mitchell
J.
Thoreson, Esq.
TOGETHER with all and singular, the Rights, Members, Hereditaments and
Appurtenances to the said Premises belonging, or in anywise incident or
appertaining.
TO HAVE AND TO HOLD, all and singular, the said Premises before
mentioned unto
the said Grantee, its successors and assigns forever.
AND the said Grantor does hereby bind Grantor and Grantor's successors,
assigns,
executors and administrators , to warrant and forever defend, all and singular,
the said Premises
unto the said Grantee, the Grantee's successors and assigns, against Grantor
and Grantor's
successors and assigns and all persons whomsoever lawfully claiming, or to
claim the same or
any part thereof.
(SIGNATURES ON FOLLOWING PAGE)
2
WITNESS Grantor' s Hand and Seal, this - - - day of - - - - - - - - -
, 2014.
SIGNED SEALED AND DELIVERED TOWN OF HILTON HEAD ISLAND,
SOUTH CAROLINA
Signature of 1'1 Witness By: Drew A. Laughlin, Mayor
Signature of 2"d Witness (the Notary Public) Attest: Stephen G. Riley,
Town Manager
STATE OF SOUTH CAROLINA )
) ACKNOWLEDGMENT
COUNTY OF BEAUFORT )
I, the undersigned Notary Public do hereby certify that Drew A. Laughlin
and Stephen G.
Riley personally appeared before me this day and, in the presence of the two
witnesses above
named, acknowledged the due execution of the foregoing instrument.
Witness my hand and seal this _ _ day of - - - - - - -, 2014.
_ _ _ _ _ _ _ _ _ _ _ _(SEAL)
Signature of Notary Public for State of South Carolina
My Commission expires: _ _ _ _ __
(affix seal)
3
EXHIBIT "B"
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