Infrastructure Reimbursement Agreement
between
County of Edgefield, South Carolina
and
LL OF SC, LLC
dated as of
May __, 2015
INFRASTRUCTURE REIMBURSEMENT AGREEMENT
This Infrastructure Reimbursement Agreement (inclusive of the Exhibits hereto, “Agreement”) is being entered as of this ___ day of May 2015 between the County of Edgefield, South Carolina (the “County”), and LL of SC, LLC (the “Company”) (each a “Party,” together the “Parties”).
W I T N E S S E T H:
WHEREAS, as a result of a foreclosure and purchases, the Company, individually and by and through several entities of which the Company is the sole member, is the owner of approximately 196 undeveloped lots (“Company Lots”), each as identified on the attached Exhibit A, in a subdivision located within the County and known as Mount Vintage Plantation (“Subdivision”);
WHEREAS, while the Subdivision has developed to some extent, a portion of the Subdivision known as the “New Nine,” as identified by the graphic on the attached Exhibit B, has few houses constructed on lots due to various factors including the fact that the internal roadways serving that portion of the Subdivision are incomplete or not constructed. The values of the lots located in the New Nine, including the Company Lots, and the property tax revenue have not increased or have decreased;
WHEREAS, the Company is proposing to fund the resurfacing and completion of certain internal roadways (“Project”), which shall be completed in two Phases as set forth on the attached Exhibit C, in order to encourage the development of new homes in the New Nine, thereby leading to increased market value and assessed values for the lots located in the New Nine, including the Company Lots;
WHEREAS, the Company is seeking assistance from the County in the form of reimbursements for a portion of the amounts the Company expends on the Project (“Reimbursements”). The Reimbursements are proposed to occur over a period of time in accordance with the terms set forth in this Agreement;
WHEREAS, the County wishes to promote the development of the New Nine and stimulate increases in fair market value and assessed values for the lots located in the New Nine and in the Subdivision, because that will significantly increase the County’s property tax revenues and other revenues for the benefit of the citizens of the County ;
WHEREAS, the County also wishes to resolve with the Company and all related companies and firms a dispute over the failure of the County to require earlier developers of the Subdivision to provide security for the completion of the roadways that are the subject of this Agreement which is in the best interests of the citizens of Edgefield County;
WHEREAS, the County is amenable to providing the Reimbursements in accordance with the terms set forth in this Agreement for the reasons set forth above.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS THAT IN CONSIDERATION OF COMMITMENTS SET FORTH HEREIN THE PARTIES AGREE AS FOLLOWS:
Article I
Commitments of the Company
Section 1.1.Commencement and Completion of Project. In consideration of the County’s reimbursement commitment set forth in this Agreement, the Company will diligently pursue the completion of the Project. The Company shall obtain all required permits and commence the Project within 90 calendar days of the execution date of this Agreement and shall complete Phase 1 as identified on Exhibit C on or before November 30, 2015 barring exigent circumstances. The Company likewise commits to the completion of Phase 2, Calvary Run, on or before March 31, 2017. The Company shall have the sole financial responsibility and liability for obtaining any permission required to access the area of the Project and contracting for the completion of the Project.
Section 1.2. Construction Standards and Inspections.The Project shall be constructed in compliance with the applicable standards and regulations of the County pertaining to streets or roads of the type located in the Subdivision. The Director of the County’s Department of Building and Planning, or his designee, shall be allowed to inspect the Project as he deems appropriate, including a final inspection of each road or street as it is completed. The Company shall comply with all laws and regulations of the State of South Carolina applicable to the Project and all applicable requirements of utilities that are located, or will be located, in the area of the Project
Section 1.3.Recordkeeping; Project Cost. The Company shall pay all costs associated with the planning, design and construction of the Project. The Company shall keep a record of all paid expenses associated with the Project along with supporting documents. At least thirty (30) days prior to the date the annual Reimbursement Payment (as defined in Section 2.3) is due from the County, the Company shall provide the County for review a certified and itemized statement of the costs paid by the Company in connection with the planning, design and construction of the Project during the prior period for which it will request reimbursement. Upon completion of the Project, the Company shall certify to the County an itemized statement the total amount of all costs paid by the Company in connection with the planning, design and construction of the Project. The total amount of the certified costs shall serve as the “Project Cost” utilized to determine the amounts of the annual reimbursements due the Company under the terms of this Agreement. The Company and the County agree that the total Project Cost on which the annual Reimbursement Payments will be calculated shall not exceed $700,000 regardless of the actual costs of the Project. The allowable costs comprising the Project Cost that the Company may be reimbursed by the County shall not include attorneys’ fees; interest on any funds borrowed or used by the Company for the Project unless the interest is owed to a third party lender and does not result in any additional compensation or benefit to the Company, any companies in which the owners of the Company have any interest, or the owners of the Company individually;any expenses related to obtaining any permission required to access the area of the Project; and any other expenses not directly related to planning, design or construction of the Project.
Section 1.4.Indemnification of County.The Company shall indemnify the County and its officials, officers, council, employees and agents (each an “Indemnified Party”), and hold them harmless, for and against any and all claims, lawsuits, actions, proceedings, liabilities, injuries or damages arising in any way from the Company’s contracts with any other persons, firms or entities concerning the Project; the planning, design or construction of the Project; or access to the area of the Project. The Company’s obligations to indemnify and hold harmless shall not extend, however, to any and all claims, lawsuits, actions, proceedings, liabilities, injuries or damages resulting from the negligence of any Indemnified Party which negligence occurs after the date this Agreement is signed by both parties.
Article II
Commitments of the County
Section 2.1.Release and Permitting of Company Lots for Development. As the Company completes each of the Phases described on Exhibit C, it shall provide written certification of completion to the County. Upon receipt of such certification, and after a reasonable period necessary for the County to examine, inspect and confirm completion of a Phase in compliance with Section 1.2 of this Agreement, the County, so long as the Company, or the then current owner of a lot, meets the County’s requirements for receipt of a building permit, including providing an acceptable recorded plat of each lot for which a permit is sought, shall grant building permits for construction of houses on such Company Lots along that Phase. The County shall uniformly apply the requirement for a new recorded plat to each party seeking to build a dwelling on any lot within the New Nine. The County hereby acknowledges that certain of the Company Lots are located on roadways within the Subdivision but outside the New Nine that have already been completed. This group of the Company Lots shall be made available for issuance of building permits at such time as the Company commences construction of the Project so long as all applicable requirements of the County for the permit are met, including providing an acceptable recorded plat of each lot for which a permit is sought where that is deemed necessary by the County due to the condition of the relevant subdivision plat.
Section 2.2.Permitting. With respect to the permitting and approval process for the Project, the County commits to expedite such approvals within the resources available to it and the County Administrator shall oversee the process so as to avoid undue delays.
Section 2.3.Details of Reimbursement Commitment. The County recognizes the Company is taking on a significant financial burden in connection with the completion of the Project. Accordingly, the County hereby commits to reimburse the Company for 80% of the Project Cost as set forth in this section. The annual payment for reimbursement to the Company (“Reimbursement Payment”) shall be paid to the Company on or before August 1 of each year, beginning August 1, 2016. The amount of the annual Reimbursement Payment shall be calculated in accordance with the formula set forth on Exhibit D (“Formula”), provided however, that the Reimbursement Payments payable on August 1, 2016 and August 1, 2017 shall be the greater of $50,000 or the amount produced by the Formula for the respective years. The County’s obligation to make annual Reimbursement Payments to the Company shall terminate on August 1 in the year that is the earlier of (i) 2025, or (ii) the year in which the total Reimbursement Payments paid by the County to the Company equal 80% of the Project Cost. The County shall not have any other obligations of any kind with respect to the streets, roads and infrastructure in the Subdivision.
Section 2.4.Annual Appropriation. In accordance with South Carolina law, the County’s obligation to make annual Reimbursement Payments as provided in this Agreement shall be subject to an annual appropriation. The County hereby declares the County’s intent to abide by the terms of this Agreement and, assuming the Company’s fulfillment of its obligations under this Agreement, to use its best efforts to annually appropriate, from any legally available source, an amount equal to the annual Reimbursement Payment due to the Company. The obligation of the County to make any Reimbursement Payment is not, and shall not be construed as, a general obligation debt of the County under Section 14 of Article X of the South Carolina Constitution or any related provisions or statutes or an indebtedness of the County under any constitutional or statutory limitations, and the full faith and credit and taxing powers of the County are not pledged for the payment thereof.
Section 2.5.Release Agreement. As part of the consideration for this Agreement, the Company, its owners, and all companies and firms, including, but not limited to, Raiford Topsail Island Investments, LLC, which are owned in whole or in part by any persons who are owners of the Company have executed the Release Agreement attached hereto as Exhibit E.
Article III
Miscellaneous
Section 3.1. Binding Effect of Agreement. This Agreement represents binding and enforceable commitments of the Parties.
Section 3.2. Severability. In the event and to the extent (and only to the extent) that any provision or any part of a provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable the remainder of that provision or any other provision or part of a provision of this Agreement.
Section 3.3. Complete Agreement; Amendment. This Agreement, together with the ordinance of the County authorizing the County to enter into the Agreement and all Exhibits hereto, constitutes the entire Agreement between the Parties and supersedes all agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof, and no Party hereto shall be bound by any oral or written agreements, statements, promises, or understandings not specifically set forth in this Agreement or the aforementioned ordinance or any Exhibit hereto.
Section 3.4. Events of Default; Remedies. Should either Party hereto fail to abide by the terms of this Agreement and is unable to comply with the terms of this Agreement within thirty (30) calendar days of the receipt of written notice from the other Party specifying the areas of noncompliance, then such Party shall be deemed to have caused an event of default under this Agreement. In such event, the Party that is injured by such event of default may take such action under law or in equity that it deems appropriate, including a demand for specific performance as permitted by the law of South Carolina, in order to enforce its rights under this Agreement.
Section 3.5. Counterpart Execution. This Agreement may be executed in multiple counterparts.
Section 3.6. Assignment. Except as provided in this Section, neither Party may assign or delegate its rights or obligations under this Agreement to any other person, firm or entity without the written consent of the other Party.
If the Company and the County agree the Project has been satisfactorily completed in accordance with the provisions of this Agreement, the Company may desire to sell or assign all of its interests in the Company Lots to a single purchaser or assignee which is not owned in whole or in any part by any former developer or developers of the Subdivision, including the individual persons who owned any interest in any such former developer or developers. In such case, the parties hereto hereby consent to an assignment of the rights and obligations of the Company under this Agreement to the purchaser or assignee. In the case of such an assignment, the Company shall provide written notice to the County of such sale or assignment within 30 days thereof. Thereafter the purchaser or assignee so identified shall be entitled to receive the balance of the Reimbursement Payments, if any, due under this Agreement in accordance with the terms hereof.In the event that the purchaser or assignee under this paragraph fails to provide the Indemnified Parties with the indemnification required by Section 1.4 of this Agreement, the Company shall provide such indemnification.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written.
County of Edgefield,
South Carolina
By:
Lynn Strom
County Administrator
LL of SC, LLC
By:______
J. Wayne Raiford
Title: ______