Public Information Act Request Uncovers Smoking Gun

From the Save Our Homes Alliance Page

Save Our Homes Alliance –We hesitate to call anyone a lair. More likely just obfuscating and dissembling. Some amount of tight-lippedness is common to all development projects. There’s a reason for that. Take this illustrative statement in which he clearly minces words: “We’re not threatening anyone with eminent domain.” Well, right, you haven’t literally told any homeowners you’re going to steal their home. That’s because when you tell someone you’re targeting them, they begin to make arrangements like hiring attorneys. However, the city has been telling SOMEONE they’ll abuse eminent domain, it’s just that that someone is their developer, as this letter proves.

June 11, 2015 SENT VIA EMAIL AND HAND DELIVERY City of Cumberland c/o Economic Development Coordinator 57 N Liberty St. Cumberland, MD 21502 Attn: Shawn P. Hershberger Economic Development Coordinator RE: Letter of Intent – Acquisition and Development of Approximate 6.42 Acre Site at 1-68, Exit 43, Maryland Ave. Ladies and Gentlemen: We have had a number of discussions concerning the disposition and development/redevelopment of certain parcels of property (each, a “Parcel”, and collectively, the “Properties”) located and situated in the City of Cumberland, County of Allegany, State of Maryland, as more particularly identified, described, and/or depicted on Exhibit “A” attached hereto and made a part hereof. Based on these discussions, the parties believe that it would be desirable to set forth in writing the understandings we have reached with respect to the principal terms on which we presently intend to proceed with the proposed transactions and certain of the remaining items needed to be accomplished to complete the same. During the course of preparing the Definitive Documents (defined below), we intend to consult with each other and with our respective professional advisors in regard to such remaining items and to determine the optimal structure of the transactions. It is agreed, however, that, except for the provisions of Sections 8, 9, and 11 hereof, this letter of intent (as the same shall be amended, restated, and/or otherwise modified from time to time, the “Letter of Intent”) is non-binding and no party shall have any legally binding obligation hereunder, including the obligation to proceed with the transactions described herein, which obligation shall be created only if and when the parties hereto execute and deliver the Definitive Documents (defined below) for the sale and conveyance to and subsequent redevelopment of the Properties by PTV Capital Partners, LLC and/or its assigns or designees (collectively, the “Developer”) on the terms and subject to the conditions set forth herein and therein. The parties hereto hereby agree to continue good faith negotiations to conclude the Definitive Documents, in principal, on the terms and subject to the conditions described in this Letter of Intent in the timeframes set forth below. 1. Properties; Proposed Transaction: The Properties consist of approximately 66 separate parcels comprising approximately 6.42 acres of land improved with existing commercial and residential buildings (each, a “Building”, and collectively, the “Buildings”) located and situate at Exit 43 off of Interstate 68, Cumberland, Maryland, as more particularly identified, described, and/or depicted on Exhibit “A” attached hereto and made a part hereof. The Properties are part of the section of Cumberland, Maryland designated by the City of Cumberland (the “City”) under a [comprehensive plan (the “CP”) it has promulgated] for a proposed commercial development. The CP contemplates the acquisition of the Properties by the City and the subsequent re-sale of the Properties for economic development. Certain of the Buildings are owner-occupied and certain of the Buildings are rented. The City has the power of eminent domain and/or other legal means to acquire good and marketable title to the Properties (such as the ability to acquire the Properties through the City’s “Blighted Properties” Ordinance and/or otherwise) and intends to utilize these powers to acquire the Properties for economic development. In furtherance of the foregoing, the City has identified and selected Developer as the preferred party to undertake exclusive negotiations with the City of terms and conditions to be incorporated into Definitive Documents (defined below) for the above proposed economic development. Developer has heretofore submitted its plan for the redevelopment of the Properties to the City, and has made a proposal for the construction of a commercial retail development. Developer’s preliminary schematic proposal for the development of the Properties (the “Initial Plan”) is attached hereto as Exhibit “B”. While the Initial Plan represent the Developer’s initial proposed redevelopment of the Properties, the Initial Plan may be revised before the execution of Definitive Documents to reflect any modifications approved by Developer and the City. The Initial Plan is approved by the City in principal as of the date of this Letter oflntent. It is contemplated by the parties that the City will, at its sole cost and expense endeavor to acquire good and marketable fee simple title to the Properties through the City’s power of eminent domain and/or otherwise within two (2) years of the date of this Letter oflntent. Following its acquisition of the Properties, the City shall, at its sole cost and expense, demolish all existing structures located and situate on the Properties and otherwise deliver the Properties to Developer as a consolidated lot or lots (in the reasonable discretion of the Developer) for development in two (2) separate phases of development. Phase I of the proposed development will include certain portions of the Properties fronting on I-68 and Emily Street; and Phase II of the proposed development will include the remaining portions of the Properties located adjacent to “Chik Fil A” bordering Williams Street. The City shall be responsible for any requisite re-zoning for the Developer’s proposed use of the Properties. The City shall be solely responsible for, and shall release, indemnify and protect Developer from any and all claims, demands, suits, actions, investigations, proceedings, damages, liabilities, losses, costs, expenses (including reasonable attorneys’ fees and disbursements) (collectively, “Damages”), at any time asserted against, imposed upon, or incurred by it in connection with or arising out of the City’s proposed acquisition of the Properties and/or their subsequent delivery of the Properties to Developer for the herein intended redevelopment. 2 2. Term. The term of this Letter oflntent shall commence upon the date that this Letter of Intent is executed by the later executing party and expire at 5 :00 p.m. Eastern Standard Time upon the ninetieth (90th) day thereafter (the “Term”), unless: (i) terminated earlier by Developer, or (ii) the parties mutually agree in writing to extend this Letter oflntent. During the term of this Letter of Intent, the City agrees not to actively negotiate with, discuss, or entertain offers from third party purchasers/developers interested in purchasing the Properties. There shall be no deposit due upon the execution and delivery of this Letter oflntent. The Purchase Price may be allocated by and among the respective Parcels as shall reasonably be determined by Developer in the Definitive Documents. The Purchase Price shall be paid in accordance with the terms and conditions set forth in the Definitive Documents. 3. Purchase Price. The parties hereto have agreed in principle that the aggregate purchase price for the Properties will be $935,000.00 (the “Purchase Price”). 4. Definitive Documents; Point of Contact. Forthwith upon the execution and delivery of this Letter oflntent, we, and our respective counsel(s) (as shall be necessary) shall engage in frank and open communication in order to begin the preparation of the Definitive Documents and the other documents to implement the transactions contemplated hereby. The Definitive Documents shall include (i) an agreement of sale for the acquisition by Developer of the Properties in substantially the form of Developer’s standard Agreement of Sale (the “Agreement of Sale”) attached hereto as Exhibit “C” and made a part hereof, (ii) a development/construction agreement (the “Construction Agreement”) setting forth and confirming the respective duties and obligations of the parties regarding the proposed development as well as the key economic, design, and development terms thereof and otherwise in form and substance satisfactory to the parties, and (iii) other customary documentation for real estate transactions of the type contemplated herein (collectively, the “Definitive Documents”). The parties shall use reasonable efforts to complete the Definitive Documents on or before , 2015. Notwithstanding the foregoing, the Agreement of Sale and the Construction Agreement shall provide, inter alia, the following material terms and provisions (i) Developer shall have an initial due diligence period of 180 days with an additional optional extension of 180 days (during which time Developer may terminate the Definitive Documents for any reason or no reason without penalty) in order to perform any inspections, assessments, investigations, plan preparation, studies or tests (including, but not limited to, obtaining site plan approval, MDOT, and sewage approvals, and review of environmental and geotechnical reports) Developer deems appropriate in determining the condition of and/or the desirability of acquiring and developing the Properties, (ii) the City shall have finalized the acquisition of the Properties; shall have razed all existing buildings on the Properties; and shall well and sufficiently transfer, assign, and convey unto Developer by special warranty deed( s ), free and clear of all liens, leases, mortgages and/or other encumbrances (except for Permitted Encumbrances defined in the Agreement of Sale), good and marketable fee simple title (and such as will be insurable by any responsible title insurance company at regular rates) the Properties together with all and singular the easements and appurtenances thereunto appertaining, all right, title and interest of the City in and to any land lying in the bed of any public street, road or avenue opened or proposed in front of or adjoining the Properties, and all right, title and interest of the City in and to any award(s) made or to be made in lieu thereof and in and to any unpaid award for damage to the Properties by 3 reason of change of grade of any street, and (iii) such other representations, warranties, terms and conditions that are typical of the purchase and sale of commercial properties and otherwise in form and substance satisfactory to each of the parties, with the advice of their respective professional advisors, in each party’s respective discretion. Nothing herein shall restrict Developer, from requesting any provisions in the Definitive Documents it may deem necessary or appropriate for the transaction (including, without limitation, representations and warranties regarding the condition ((environmental or otherwise)) of the Properties. Developer may designate an affiliate to enter into the aforementioned Definitive Documents. Either party may name an individual to act as liaison for negotiating the Definitive Agreement with the responsibility, among other things, to see that the terms and conditions of this Letter of Intent are carried out in a timely fashion provided; however, that the City shall designate one point of contact for all negotiations and/or other aspects of the transactions contemplated herein. The initial point of contact for the City shall be Shawn P. Hershberger. 5. Agreements. The parties hereto hereby agree that Prior to the closing of the transactions contemplated by this Letter of Intent, the City shall have completed, or caused to be completed, at its sole cost and expense, the following conditions precedent to Developer acquiring the Properties (i) the acquisition of all of the Properties, (ii) the demolition of each of the Buildings and the removal and proper disposal of all resulting debris (including, but not limited to, lead paint, asbestos tile or shingles and/or other environmentally sensitive items), (iii) the consolidation of the Properties into one or more tax parcels (as shall be reasonably requested by Developer), (iv) all necessary zoning change(s) and/or approval(s) required for Developer’s proposed use of the Properties has been secured, (v) an acceptable environmental assessment has been secured for the Properties (post demolition), and (vi) the City is capable of transferring title to the Properties to Developer in accordance with this Letter of Intent. 6. Due Diligence; Discussions with Partners. During the course of the preparation of the Definitive Documents, and so long as the term of this Letter oflntent remains in effect, the City shall make available to Developer and its counsel and other representatives such documents, books, records and information relating to the Properties as shall be reasonably requested from time to time. The City shall also afford Developer, its counsel and its other representatives physical access to the Properties for evaluation and further testing, provided that any invasive or structural work shall require the City’s prior written approval (not to be unreasonably withheld, conditioned and/or delayed) and shall not interfere with the use and occupancy of the Properties by the current owners and/or the City, and provided further that Developer shall indemnify the City for any damages caused to the Properties by Developer or its affiliates or representatives resulting from any such evaluation or testing. Developer shall carry satisfactory insurance that names the City as additional insured to cover such risks. 7. Binding Nature. It is understood and agreed by and among the parties hereto that, except for the provisions in Sections 8, 9 and 11, this Letter oflntent is a non-binding letter of intent, which shall not in any way constitute a binding and enforceable agreement between the parties. In the event the discussions result in a decision to proceed with the contemplated transactions, the parties shall do so only pursuant to the terms of the Definitive Documents. At any time prior to the execution and delivery of the Definitive Documents, Developer may decide to terminate this non-binding letter of intent and not go forward with discussions, in which event notice of 4 such termination shall be given in writing by Developer to the City, and neither party shall have any liability to the other arising out of this Letter oflntent or its subject matter. 8. Confidential Information. Developer and City understand and agree that in the performance of this Letter of Intent and the transactions contemplated hereby, each party in the future may have access to private or confidential information of the other party, including, but not limited to, project acquisition, development, letters of intent or proposed leases, marketing plans, business plans, business methods, financial information, pricing information, and/or customer information (collectively, the “Confidential Information”). Both parties agree that the terms of this Letter of Intent, including, without limitation, its financial terms, shall be deemed Confidential Information. Each party agrees that: (i) all Confidential Information shall remain the exclusive property of the owner of such information; (ii) it shall maintain, and shall use prudent methods to cause its members, owners, officers, directors, representatives, professional advisors, employees and agents to maintain, the confidentiality and secrecy of the Confidential Information; (iii) it shall not, and shall use prudent methods to ensure that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (iv) it shall return or destroy all copies of Confidential Information upon request of the other party or expiration/termination of this Letter of Intent for any reason. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it is or becomes a part of the public domain through no act or omission on the part of the receiving party or information that is known by the receiving party prior to such party’s receipt from the other party or is made known to a party by a third party without an obligation of confidentiality or nondisclosure. This Section 5 shall survive the termination or expiration of this Letter of Intent. Each party acknowledges and agrees that the disclosure of Confidential Information of the other party in violation of this Letter of Intent will result in irreparable harm to the other party. A party shall have the right to immediately seek injunctive relief in the event the other party discloses or threatens to disclose Confidential Information to a third party in breach of this Section 8, which remedy shall be in addition to any other legal remedies which may be available at law or in equity. 9. Waiver. EXCEPT FOR CLAIMS ARISING OUT OF OR RELATED TO SECTION 5, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND LOST REVENUES, ARISING OUT OF OR RESULTING FROM THIS LETTER OF INTENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF: (I) THE NEGLIGENCE OF EITHER PARTY; (II) A FAILURE OF AN ESSENTIAL PURPOSE; AND (III) WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. I 0. Validity. Whenever possible, each provision of this Letter of Intent shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Letter of Intent or the application thereof to the parties hereto or any circumstance in any jurisdiction governing this Letter of Intent shall, to any extent, be invalid or unenforceable under 5 any applicable statute, regulation or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith, and shall be deemed modified to conform to such statute, regulation or rule of law to the extent permitted in keeping with the intentions of the parties hereto, and the remainder of this Letter of Intent and the application of any such invalid or unenforceable provision to the parties, jurisdictions or circumstances other than to whom or which it is held invalid or unenforceable, shall not be affected thereby nor shall same affect the validity or enforceability of any other provision of this Letter of Intent. 11. Exclusivity. In consideration of the expenditure of time, effort and expense undertaken and to be undertaken by Developer in connection with the proposed acquisition and development of the Properties, the City covenants that, until this Letter of Intent is terminated or expires without the execution of Definitive Documents, the City shall not, nor shall the City permit any office, political subdivision, branch, officer, director or employee of the City or any affiliate thereof to have any communication with any person in connection with the possible sale and/or development of the Properties. It is understood by and among the parties hereto that the City has designated Developer as the exclusive party to acquire and/or develop the Properties. It is further understood by Developer that the City is permitted to select Developer as the aforementioned exclusive party without the requirement of a formal request for proposals, bidding process and/or other request or procedure. 12. Opportunity to Consult With Counsel. EACH PARTY HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS LETTER OF INTENT PRIOR TO SIGNING, HAS FREELY, AND VOLUNTARILY ENTERED INTO THIS LETTER OF INTENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION, INCLUDING, BUT NOT LIMITED TO, EACH PARTY’S RIGHTS, OBLIGATIONS, AND APPLICABLE TERMS AND CONDITIONS AS SET FORTH HEREIN. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT ANY INTERPRETATION OF THIS LETTER OF INTENT SHALL NOT BE CONSTRUED AGAINST A PARTY BY VIRTUE OF ITS HAVING DRAFTED THE TERMS AND CONDITIONS HEREUNDER. 13. Governing Law; Headings. The construction, interpretation and enforcement of this Letter of Intent, as well as any and all tort claims arising from this Letter of Intent or arising from any of the proposals, negotiations, communications or understandings regarding this Letter of Intent, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, applicable to contracts made entirely within and wholly performed in Pennsylvania, without regard to the conflict or choice of laws provisions thereto. The sole jurisdiction and venue for any litigation arising out of this Letter of Intent shall be an appropriate federal or state court located in the Commonwealth of Pennsylvania, except that either party may seek injunctive relief in any venue of its choosing. The headings or titles of the paragraphs or subparagraphs of this Letter of Intent are for convenience only and shall not be used as an aid in construction of any provision hereof. 14. Cumulative Remedies: Waivers: Iniunctive Relief. All remedies available to either party for breach of the contractually binding provisions of this Letter of Intent are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed 6 an election of such remedy to the exclusion of other remedies. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. 15. Entire Agreement; Amendments; Assignment; Independent Contractors. This Letter of Intent is the entire agreement between Developer and the City and supersedes any other communications, advertisements or understandings with respect to the subject matter hereunder. This Letter of Intent may be amended only in a writing, signed by both parties. No third party is a beneficiary of this Letter of Intent. Other than Developer’s right to assign this Letter of Intent to an affiliate and/or single purpose development entity, this Letter of Intent is not assignable by either party in whole or in part, without the prior written permission of the other party. Both parties are acting in performance of this Letter of Intent as independent contractors. This Letter of Intent does not create an association, joint venture, partnership, or jointly owned assets or equity between Developer and City nor imposes any partnership liability upon either Developer or City for any act or omission of the other. 16. Costs; Funding. Each party is responsible for its own costs and expenses which may be incurred for the negotiation and preparation of this Letter of Intent, that may arise during the Term and which may arise out of its obligations and efforts under this Letter of Intent. Notwithstanding the foregoing, the City has identified certain available State funding available to fund the City’s proposed acquisition of the Properties and demolition of the Buildings including, but not limited to, (i) approximately $216,000 in funding earmarked for demolition of the Buildings, (ii) approximately $140,000 earmarked for blighted properties, (iii) approximately $250,000 earmarked for blighted properties for fiscal year 2016, and (iv) approximately $500,000 in Parcel specific “Smart Growth” Fund dollars earmarked for redevelopment within the City (collectively, the “State Subsidies”). The City covenants and agrees to timely apply for and/or otherwise diligently prosecute to completion each such application in order to secure the State Subsidies. 17. Notices. All notices and other communications in connection with this Letter of Intent and the transactions contemplated hereunder shall be in writing and shall be either telecopied, faxed, delivered personally, delivered by reputable overnight courier or mailed by certified mail, return receipt requested, postage pre-paid, to the recipient at such recipient’s address set forth below (or at such other address for a party as shall be specified by notice given pursuant hereto): (i) If to City: City of Cumberland 57 N Liberty Street Cumberland, MD 21502 Attn: Shawn P. Hershberger, Economic Development Coordinator Fax: 301-759-6432 7 (ii) If to PTV Capital Partners, LLC PTV Capital Partners, LLC 1563 Woodward Drive Extension Greensburg, PA 15601 Attn: Timothy H. Weinman Fax: 724-420-5369 With a Required Copy to: Duffy & Nichols 150 Robbins Station Road, Ste 4 North Huntingdon, PA 15642 Attn: Matthew M. Nichols, Esq. Fax: 724-864-9193 All such notices shall be effective and deemed received upon delivery, if delivered by hand; three (3) days after deposit in the mail, postage prepaid, if mailed; upon receipt, in the case oftelecopy (fax) or sent by overnight courier. Notice may be given by attorneys on behalf of the parties. 18. Counterparts. This Letter of Intent may be executed in one or more counterparts, each of which shall be deemed an original, and all such counterparts when taken together shall for all purposes constitute a single instrument, binding on all parties hereto, notwithstanding that all parties shall not have executed the same counterpart. 19. Conflicts with Exhibits. In case of any conflict between the terms of this Letter of Intent and the provisions of any Exhibits hereto, the terms of this Letter of Intent shall control. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural forms thereof, as the context may require. 20. Brokers. Each party represents that it has dealt with no broker in connection with the transactions contemplated hereby, and each party agrees to indemnify the other against all fees, expenses and compensation payable to any broker or finder engaged by or claiming through or under such party with respect to the transactions contemplated hereby.

The City is NOT planning use of governmental powers including eminent domain.” – Brian Grim

Oh really? See the smoking gun evidence for yourself. Obtained in a Public Information Act request.

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