Tag Archives: Tim O’Briant

Laws & Bylaws, November 2022, Project Pascalis 2022

The City of Aiken’s Information Games: Part II

7 Comments

Post-Publication Redaction  of the AMDC/RPM Contract

by Don Moniak

November 21, 2022

Within twenty-four hours of the publication of “Downtown Aiken Half Priced Sale,” the December 3, 2021 Purchase and Sale Agreement (PSA) between the Aiken Municipal Development Commission (AMDC) and Project Pascalis developer RPM Development Partners, LLC (RPM) was removed from City of Aiken’s document repository. The withdrawal of the document from public view occurred in spite of the agreement —which was amended as late as June 2022 — being terminated by RPM on September 14, 2022 and rendered null and void two weeks later by the AMDC.

The December 3, 2021 agreement was publicly available, within a file titled “11302021 RES Municipal Dev. Com,” between October 21 and November 10, 2022. The file was within an AMDC folder called “other records” in the City of Aiken’s Laserfiche/Ecodocs records repository.  Amendments to the agreement remain an AMDC secret.

The file contained both the AMDC resolution to sell the properties and the Purchase and Sale Agreement. At 9:41 a.m. on November 11th the file was removed from view, less than one day after its availability had been publicized in The Aiken Chronicles.

“113022021 RES Municipal Dev. Com” was made publicly available on 10/21/22 and removed 11/11/22

The document detailed the conditions for the sale of the commission’s seven Pascalis project properties. The proposed sale price of $5 million was nearly half of the $9.5 million the commission paid on November 9, 2021.

The contract also allowed for a fifty percent cost reimbursement for project design; and set a price of $3 million for an AMDC buyback of the proposed city-owned conference center and parking garage:

“Seller, or its designee, shall be required to purchase the parking garage and conference center components thereof upon completion of the Redevelopment Project for a purchase price calculated based on ( i) Three Million and 00/ 100 Dollars ($ 3,000, 000. 00), representing the portion of the Purchase Price hereunder allocated to the land for the parking garage and conference center, plus (ii) the actual design, permitting and construction costs ( pursuant to a fixed price agreement
therefore) of the parking garage and conference center and a development fee to Purchaser equal to 5% of such costs.”

A $3 million AMDC buyback meant a net cost to the developer of $2 million for the purchase of the Hotel Aiken, the Beckman Building at 106 Laurens Street, and the portion of other properties dedicated to an apartment complex.

The AMDC signature page was signed by commission chairman
Keith Wood. The RPM signature page was signed by RPM investor and legal agent Ray Massey, who is one of Aiken City Attorney Gary Smith’s partners.

The commission obtained the money via a grant from the City of Aiken, which in turn raised the funds by borrowing it via a municipal bond issuance approved by ordinance on August 23, 2022. Gary Smith, acting as City Attorney and council parliamentarian during the bond issuance, was responsible for preparing the ordinance, and signed his approval.

The signature page for the $10 million bond issuance ordinance.



The day before the contract with RPM was signed, Wood expressed concern in an email to other commissioners about having Smith’s name on a news release announcing the agreement, writing,

“Do we have to mention the Massey law firm as written? I think having Smith’s name in the news release will raise unwanted questions.”

No justification has been given for the post-publication redaction. RPM terminated the agreement on September 14, 2022; and the commission voted unanimously on September 29, 2022, to declare the contract “null and void.” 

No other known purchase and sale agreements involving city property are considered too sensitive to publicly disclose—-even if that were an option. Examples of questionable real estate deals that were public knowledge before closing, and were open to public debate, include:

The agreement to sell the city’s Mattie Hall property to Smith, Massey, Brodie, Guynn, and Mayes law firm associate Scott Patterson. As reported in The City of Aiken’s Mattie Hall Property, the land the city sold for $150,000 was placed on the market for $700,000 two weeks after closing.

The agreement in January 2020 to sell the city’s Finance Building at 135 Laurens Street and the associated parking lot at 130 Pendleton St, SW for a collective $1.3 million to local investor Weldon Wyatt. As reported in The Cleaners, Wyatt then sold 135 Laurens St, SW one month later to SRP Credit Union for $1.3 million, and the parking lot a year later to R&O, LLC (Agent: Rick Osbon) for $500,000. 

The only previous justifications for keeping the RPM contract sealed, and for continuing to withhold Project Pascalis procurement records, are two South Carolina Freedom of Information Act (FOIA) exemptions.

Exemption five states the government may withhold documents “Incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property.”  
(SC 30-4-40(5)).

Although the exemption ends “once a contract is entered into or the property is sold or purchased,” the law also allows for continued exemption “until the deed is executed, but this exemption applies only to those contracts of sale or purchase where the execution of the deed occurs within twelve months from the date of sale or purchase.” 

As reported on October 24, 2022, former AMDC Executive Director Tim O’Briant (1) argued that since the deed was never executed, the contract remained exempt from disclosure. Since November 1, 2022, AMDC Chairman Keith Wood (2) has declined to answer requests to review commission records.

Exemption nine states the governmment may withhold “Memoranda, correspondence, documents, and working papers relative to efforts or activities of a public body and of a person or entity employed by or authorized to act for or on behalf of a public body to attract business or industry to invest within South Carolina.” (SC 30-4-40(9)).

These records are not exempt after the offer to attract an industry or business is accepted and the “public announcement of the project or finalization of any incentive agreement, whichever occurs later.” 

The AMDC is relying upon the strictest interpretation of the state’s open records law to continue to withhold key information pertaining to Project Pascalis. But by any reasonable assessment, the continued secrecy surrounding the December 3, 2021, RPM Purchase and Sale Agreement, and subsequent amendments, is another indication that the AMDC plays by its own set of rules. After spending more than than $10 million of taxpayer funds to pursue Project Pascalis, the commission is essentially arguing that Project Pascalis contracts and procurement records are exempt from public disclosure because their project failed.

_______________


Footnotes


(1) Tim O’Briant was as an editor at the Aiken Standard from 2000-2016 and once testified to the South Carolina General Assembly on behalf of FOIA reform. After spending a year as an editor with The Brunswick News, in 2017 he was hired by the City of Aiken as its Communications Manager; and in 2019 was promoted to Director of the City’s new Economic Development Department. In November, 2021, he received a certification as an Economic Development Professional from the SC Department of Commerce’s Economic Development Institute.

From March 2021, to September 2022 he was the face and spokesperson for the Pascalis project, and was one of two people authorized to negotiate with developers and sign checks for commission expenditures.

O’Briant is no longer listed on the list of AMDC staff at aikenmdc.org. His unannounced removal from the commission’s staff followed unproven accusations by AMDC members Keith Wood and Chris Verenes that unnamed staff had deceived Wood into signing the December 3, 2021 contract with RPM prior to the release of a Request for Proposals. Details on this series of events can be found in The Project Pascalis “RFP.”

He reportedly remains employed as the City of Aiken’s Economic Development Director. As detailed in Part One of The City of Aiken’s Information Games, in that capacity he led efforts to obstruct access to Project Pascalis records.

(2) Keith Wood is an original AMDC member. He was appointed to the AMDC in early 2020 and has served as the Chairman of the AMDC since September, 2020. Along with Tim O’Briant, he was one of two people authorized to negotiate with Project Pascalis developers and authorize expenditures.

Wood is employed by Amentum Corporation as Vice President of Marketing and Communications in the company’s Nuclear Security Group.



In the Demolition Zone, Money Trails, November 2022, Project Pascalis 2022

Downtown Aiken Half Price Sale

5 Comments

AMDC Agreed to Sell Pascalis Properties for $5 Million. 

by Don Moniak

November 10, 2022

Without any public notice, the Aiken Municipal Development Commission (AMDC) has finally made public (1)  its December 3, 2021 Purchase and Sale Agreement (PSA) with RPM Development Partners, LLC (RPM).  However, the AMDC has yet to release the amended version of the PSA that was completed in June, 2022. 

The AMDC purchased the seven Pascalis properties on November 9, 2021  for a total of $9.5 million, using a grant from the City of Aiken from its August, 2021, $10 million municipal bond issuance. The PSA with RPM was signed on December 3, 2021 by AMDC Chairman Keith Wood, and RPM authorized agent Ray Massey.

The AMDC refused to disclose the proposed sale price for the properties and denied Freedom of Information Act (FOIA) requests for the PSA as recently as September 13, 2022–one day before RPM terminated the agreement. The AMDC also refused to release the PSA in early October, stating the process was ongoing. 

According to the PSA, the AMDC proposed to sell the Berkman Building on Laurens Street, the Hotel Aiken, the Holley House, Taj Aiken Restaurant, the McGhee Building, Warneke Cleaners, and Newberry Hall for a collective $5 million— a 47% discount from the AMDC purchase price that would have resulted in a $4.5 million loss to the City of Aiken.

From December 3, 2021 Purchase and Sale Agreement Between RPM Development Partners, LLC and the AMDC


Other portions of the PSA included requirements that: 

  • The City of Aiken perform all changes to Newberry Street at no cost to RPM; including removal of parking spaces, relocation of southbound traffic lanes and stormwater drainage and other utilities. If the City of Aiken failed to agree to these terms, RPM had the right to require the AMDC to repurchase the properties for $5 million. 
  • The AMDC maintain insurance policies on all the  properties  and “manage and operate the Property in accordance with past practices and maintain the Improvements and the tangible Personal Property in substantially its current condition and repair, ordinary wear and tear excepted, to be delivered in a broom clean condition at Closing.” 
  • A Master Development Agreement be completed prior to closing that defined the purchaser’s requirements and set a repurchase price for the garage and conference center at $3 million. 

As reported in Portions Rescinded, But No Cancellation, RPM terminated the agreement on September 14, 2022, although that action was not publicly disclosed by the AMDC at the time. On September 29, 2022 the AMDC voted to render the agreement null and void, and commission members Keith Wood and Chris Verenes pinned blame for violations of South Carolina Community Development Law on unnamed “staff.” Since that time, longtime AMDC Executive Director Tim O’Briant was removed from the list of staff on the AMDC website.

In May 2022, the AMDC admitted that a “sole, one-time, financial incentive [for the developers] will be a discounted price for the property upon which they will build the hotel and apartments.” In light of the revelation that the discount was nearly a half-price sale, that statement might qualify as the top understatement of 2022 from the City of Aiken.

From the Purchase and Sale Agreement between RPM and AMDC, December 3, 2022.

Feature Photo is taken from Exhibit A on Page 29 of the PSA.

Exhibit A. Page 29. PSA between RPM and AMDC, December 3, 2022.
Also Available at: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2762415&dbid=0&repo=City-of-Aiken-LF

Followup story: The PSA is Removed from the City’s Document Repository.

FOOTNOTE:

(1) The document appears to have been posted at the City of Aiken’s Laserfiche ecodocs document repository on October 21, 2022; filed under “other documents” in the AMDC folder.

The City of Aiken has yet to respond to the following FOIA request, filed on September 29, 2022:

“A copy of the unredacted version of the attached document, Pascalis offers comparison_Redacted, located at: https://aikenmdc.org/wp-content/uploads/2022/03/Pascalis-offers-comparison_Redacted.pdf 2. A copy of all documents related to “Pascalis proposal solicitation and RFP scoring“ not presently at https://aikenmdc.org/2022/03/29/project-pascalis-public-records/; including, but not limited to: a. All emails or other correspondence to prospective developers that accompanied the RFP package; b. All memorandums describing proposals; and c. All submitted proposals. Under SC Community Development Law, all records of the AMDC are to be made available for inspection. I am willing to inspect the files as is to reduce and eliminate search and retrieval time. SECTION 31-10-160. Availability of commission’s books, records, bylaws, rules, and regulations for public inspection; annual report of commission’s activities. (a) The books and records of a commission are at all times open and subject to inspection by the public.”

In the Demolition Zone, Money Trails, November 2022, Project Pascalis 2022

The $9.6 Million AMDC “Land Bank,” One Year Later

5 Comments

Part 1: The Aiken Standard Chooses a Path. 

by Don Moniak

November 4, 2022

One year ago yesterday, the Aiken Municipal Development Commission (AMDC) announced its intention to “acquire significant property in the downtown area,” and a planned vote on the proposed purchase during its November 9, 2021 meeting. The announcement came less than three months after Aiken City Council had approved a $10 million municipal bond issuance in support of the AMDC purchasing properties in the “Parkway District,” an arrangement City Manager Stuart Bedenbaugh described at the time as a “land bank.” 

The AMDC did not identify the properties in its news release, leaving those details to the Aiken Standard by providing the paper with advance copies of meeting agenda materials; most notably the Purchase and Sale agreements.  On the same day as the AMDC announcement, Standard reporter Colin Demarest described the properties to be purchased for $9.5 million as: 

“the languished Hotel Aiken and neighboring motel, businesses on Richland Avenue, the former Playoffs Sports Bar, Warneke Cleaners, Newberry Hall and three shops on Laurens Street.” 

The first story of the $9.6 million AMDC purchase of the Pacalis project properties.

The Standard did identify by name the three existing shops on Laurens Street, and the four businesses operating on Richland Avenue–of which only the Taj Aiken Restaurant remains today. But not until July 2022, in an article examined in “The Project Pascalis Evictees,” did the paper report again on the nine businesses being forced by their local city government to close or relocate.

Demarest did manage to report, deeper within the article:

“The Aiken Chamber of Commerce intervened in May, documents show, and salvaged contracts critical to the redevelopment effort.” 

That single sentence was the first time the Aiken Standard mentioned the involvement of the Aiken Chamber of Commerce. It was also the last time the Chamber’s role was mentioned for more than eight months. The paper has never provided details of the Chamber’s deep involvement in salvaging the land deal in May, 2021 (1); a move that bailed out the first Pascalis project developer Weldon Wyatt. 

Two days after his first story Demarest quoted J. David Jameson, not as an AMDC Commissioner who was instrumental in the furtive May 2021, dealmaking, but as the Chamber of Commerce President. This pattern continued with a December 3, 2021 article announcing the selection of RPM Development Partners, LLC as the AMDC’s “preferred developer” for its $100 million plus demolition and redevelopment effort originally code-named Project Pascalis in March 2021. 

Whether the self-censorship was related to Aiken Standard publisher Rhonda Overbey’s role as a Chamber board member is unknown. As reported in “The Influencer’s Meetings,” Overbey was also one of 113 people on an “influencers” list who were invited to private, invitation-only meetings with the second Pascalis project developer in early January, 2022. 

What is known is the the November 4th announcement was also accompanied by an op-ed by the Standard’s editorial board, titled “Downtown Aiken Entering the Age of Enlightment.” The board was all in for Project Pascalis, before any significant details were known: 

“This is no joke and there isn’t a punchline; we think it’s going to happen. And happen huge. The marketing buzz words seem to be bold action. We like it…It’s time for triumph.” 

This editorial praising the project ran the same day the story broke.

Project Pascalis was not the first major project during which the Aiken Standard’s news coverage appeared distorted by its editorial position. The city’s hospitality tax and Aiken School District bond referendums enjoyed the same journalistic approach. But the Pascalis coverage lowered the bar for minimizing scrutiny of a megaproject involving tens of millions of dollars of public funds.

For example, not until August, 2022, did the Aiken Standard file a Freedom of Information Act request to the City of Aiken for Pascalis related records. And, during a public Zoom meeting in late June, 2022, the lack of investigative zeal was reflected when Standard staffers repeatedly employed the phrase “the City says,” while avoiding the phrase “We asked the City.” 

____________________

FOOTNOTE

(1) As reported in “The AECOM Plan:”

“The first Pascalis project collapsed in early May (2021) when Weldon Wyatt withdrew from the deal. As part of the negotiations to salvage the deal, Mayor Osbon met with Weldon Wyatt and Greenville based developer Andy Cajka, President of Greenville, SC based Southern Hospitality Group. A memorandum from Tim O’Briant to AMDC members Jameson, Chris Verenes, and Chairman Keith Wood described the meeting: 

The Mayor and Weldon met with Andy on Monday, I was out of town, apparently shg hotels will possibly deliver a LOI (letter of intent) regarding the hotel this week. The mayor agreed the meeting went well and Andy was engaged in making a deal that would be privately funded based on the public dollars and incentives driving the project. Mayor indicates he deferred question about Friday negotiations and City’s position on deal points citing my absence and his lack of information on the subject.

A day later O’Briant and AMDC Treasurer and Chamber of Commerce President David Jameson had lunch with Weldon Wyatt, his investment and development partner Thomas “Chip” Goforth, and GAC Management Services employee Ryan Bland, who two weeks earlier had still held the position of City of Aiken Planning Director. O’Briant described that meeting as follows: 

David Jameson and I went to lunch with Weldon, Ryan, and Chip. Weldon continues to promote the benefits of 100 percent public funding of the entire project, but now says he doesnt’ intend to participate in the cost or the proceeds—just wants a fee/commission for the project to be successful. This despite bringing in a potential private partner with money to spend just yesterday. He is somewhat cagey and defensive and says he believes I have conveyed messages not representative of the City’s position. Indicates he believes there is some possibility the city council would accept the deal that I rejected Friday. Indicates Lessie (Price) is setting up the Thursday meeting to get everyone in one room to verify my position does not reflect that of leadership.

After that point the known paper trail ends, and the outcome of any meeting set up by Council member Lessie Price is unknown. What is known is:

  • On May 10, 2021, Aiken City Council met in closed door Executive Session for nearly two hours to discuss a range of topics, including “a possible purchase of real estate” and “a possible contractual arrangement with a real estate developer.” The outcome of that meeting was not summarized during the subsequent public session. 
  • On May 14, 2021 the Aiken Chamber of Commerce took assignment of the purchase and sale contract for the Shah’s suite of properties; and then on June 3rd took assignment, of the Anderson (Newberry Hall) contract. In all, the Chamber reimbursed Wyatt’s firms $135,000 of otherwise nonrefundable earnest money managed by City Attorney Gary Smith’s law firm. From that point, the AMDC secretly referred to the properties as “AMDC controlled.” 
  • In August 2021 Aiken City Council approved a $10 million bond issuance in support of AMDC property acquisitions in the “Parkway District,” with the AECOM Plan’s reference to “fragmented property ownership” a key justification in the supporting bond documents. 
  • AMDC Chairman Keith Wood, whose letter to City Council urging the bond passage included citations from the AECOM plan, also wrote in a July 26, 2022 letter to the Historic Aiken Foundation: “The AMDC first pursued the purchase of the property in question and those adjacent to it at the behest of Aiken City Council.” 

There is no record of Aiken City Council asking the AMDC to purchase the Pascalis project properties. Any such request made in closed-door, Executive Session would constitute a serious violation of Open Meetings law, which dictate that no votes are to be taken in Executive Session. 

When questioned about the origin of this unsubstantiated statement, neither Chairman Wood nor Tim O’Briant have offered any reply.”

October 2022, Project Pascalis 2022

Cancelled, Stopped, On Hold, Terminated, or Ongoing?

3 Comments
The Shifting Status of Project Pascalis: per The Defendants

by Don Moniak

October 24, 2022

Defendants in three lawsuits regarding Project Pascalis have offered multiple versions of the current project status in the past month, suggesting the project is in another transition phase between developers. Since September 14, 2022, the following statements have been made, in their order: 

  • “Developer is forced to hereby exercise its rights to terminate the Agreement,” but “would like to continue to participate in the ongoing development of this project.” (Attorney James Myrick for RPM) 
  • “Amend that motion now to say that we declare the existing contract null and void and we propose to cancel the redevelopment plan.” (AMDC)
  • “The AMDC is terminating all planning work with the current developer and hopefully plans to restart the planning process.” (Keith Wood) 
  • “This process is still ongoing.” (Tim O’Briant)
  • “This redevelopment plan is currently on hold.” (Stuart Bedenbaugh)
  • “Because the Developer also purported to cancel the project.” (Attorneys for Chris Verenes) 
  • “Project Pascalis has been terminated“ (Proposed Aiken City Council Ordinance). 

Since May 9, 2022 three lawsuits have been filed against the City of Aiken for all or parts of Project Pascalis. (1) The city is being represented in the first two lawsuits by the local firm of Nance and McCants. At the present time, there are fourteen lawyers from eight different firms (2) representing twenty-eight different defendants in the more expansive Blake et al vs City of Aiken et al lawsuit filed on July 5, 2022.  WIth so many lawyers defending so many people and organizations, it should come as no surprise that the defendants are sending mixed messages regarding the status of Project Pascalis and seven properties owned by the Aiken Municipal Development Commission (AMDC) .

On October 19, 2022, attorneys for Aiken Municipal Development Commission (AMDC) Vice Chairman Chris Verenes joined the Blake et al proceedings and filed a Motion to Dismiss Mr. Verenes as an individual and only hold the commission as the defendant. (City of Aiken counsel Daniel Plyler argued the same for City Council, that the city should be the defendant, not the individual council members.) 

Notable in the Verenes filing is an argument that the case is now moot because: 

“At its last meeting, the Commission passed a resolution to (a) stop the redevelopment project commonly known as Project Pascalis, (b) declare the purported existing contract with Defendant RPM Development Partners, LLC dated December 3, 2021, null and void, and (c) cancel the Redevelopment Plan One for Downtown Aiken, dated July 10, 2020. (See Exhibit 2, Commission Minutes (September 29, 2022).” 

The first problem with this statement is two-fold. First, the September 29th meeting minutes cited are an unapproved draft, since the commission has not met since the 29th to approve its minutes. Second, the draft minutes are inaccurate, even misidentifying who made and who seconded the motion. An actual transcript of the meeting from a video taken by a watchful citizen, reads: 

Keith Wood: There is a continued motion uh that was uh continued from the last meeting that has been discussed. Uh, that motion says that we will stop project pascalis and declare the purported existing contract null and void with RPM and we propose to either amend or cancel the redevelopment plan.”

Is there a motion to move?

Commissioner Philip Merry:  Yes sir Mr. Chairman, I would like to amend further amend that motion um to now say that we declare the existing contract null and void and we propose to cancel the redevelopment plan. 

Commissioner Douglas Slaughter:  Second.

In the final, amended motion, the word “purported” was removed; the cancellation of the unnamed redevelopment plan was “proposed” and not final; and because the final oral motion not repeated for clarity and is not in writing, it is unclear whether the motion actually contains the phrase “Stop Project Pascalis.”

The second problem with the Verenes motion is it adds to the inconsistency of other statements put forth by various defendants; beginning with the developer’s termination of the Purchase and Sale Agreement for the seven AMDC-owned Project Pascalis properties.

The Developers Position 

On September 14, 2022, one day before the deadline to recoup its earnest money, RPM Development Partner attorney James Myrick wrote in a letter to the AMDC:

“Developer is forced to hereby exercise its rights to terminate the Agreement and to require reimbursement of Developer’s costs and expenses by the Commission.” 

But in his final paragraph, Myrick left open the possibility of an RPM return: 

“We have appreciated the opportunity to work with the Commission and the City of Aiken and would like to continue to participate in the ongoing development of this project. We believe that our experience and expertise can be valuable to the Aiken community, and we look forward to responding to any new revised project proposal from the Commission when the time comes and hopefully working with you to advance the revised project.” 

The developer’s attorneys further used this letter of termination to argue in a September 30th Motion to Dismiss RPM and Raines that “Defendant RPM Development Partners, LLC terminated its contract with the City of Aiken relating to Project Pascalis.”

The Chairman’s Position

On September 29th, AMDC Chair Keith Wood wrote in an individual statement that “the AMDC voted to stop Project Pascalis, declare the existing contract with the developer null and void, and cancelled the Redevelopment Plan,” a plan that is not the commission’s to cancel. (3) The statement was written before the amended motion was approved.

Wood also added the AMDC “hopefully plans to restart the procurement process.” 

Portion of statement made by AMDC Chair Keith Wood on 9/29. “Cancel” written by Keith Wood.
The Economic Development Director’s Position 

Although Wood declared fealty to South Carolina’s Community Development Law (SC 31 Chapter 10), that commitment quickly waivered into noncompliance in terms of Part 160(a) of the law: “The books and records of a commission are at all times open and subject to inspection by the public.”

On October 6,  inspections of all AMDC books and records were denied by Aiken Economic Development Director Tim O’Briant barring a Judge’s order. O’Briant confirmed (4) the following position pertaining to procurement information and cancelled Purchase and Sale Agreement with RPM Development Partners, LLC: 

“The AMDC will not release any information pertaining to any agreements between the AMDC and RPM Development Partners until a deed is executed–even though there is no existing contracts and no proposed sale. The position of the city is that this process is ongoing and therefore FOIA exemptions #5 and #9 still apply. Even though there is no redevelopment plan, solicitations may still occur and release of information would provide competitive information to bidders.”

The City Manager’s Position 

In an October 13, 2022 Addidavit submitted to the Second Judicial Circuit of South Carolina in response to the Johnson and Cornelius lawsuits—but lacking any associated motion—City Manager Stuart Bedenbaugh stated the redevelopment plan (still unnamed) is “on hold” and that only “key portions” of the the project were rescinded. 

From: 10/13/2022 Stuart Bedenbaugh Affidavit
Aiken City Council’s Position

On Monday, October 24th Aiken City Council will hold the first reading of an ordinance repealing the Newberry Street privatization ordinance passed on May 9, 2022 which describes Project Pascalis as “terminated.” 


No clarification has been forthcoming from city officials who seem more eager to escape from expensive, damaging, and effective litigation than to put forth a unified and consistent message, and also comply with anti-corruption laws governing access to records, conflicts of interest, and fair, competitive procurement of services. 

Instead, the developer has indicated a strong willingness to return; the AMDC chair has stated a preference to move forward with another procurement process; the city’s Economic Development Director claimed the process is ongoing; the City Manager wrote the plan is on hold; City Council has only acknowledged that the contract, and not the project, is terminated; and now the AMDC Co-Chair has separate legal counsel from that being provided by the AMDC. 

________________

Footnotes 

(1) Three lawsuits have been filed: 

a. On May 9, 2022 Kelly Cornelius filed a civil appeal complaint against Aiken City Council in the Court of Common Pleas alleging public notification violations and state ethics law violations by City Attorney Gary Smith for failing to recuse himself during the March 28, 2022 Aiken City Council hearing for an ordinance to privatize a portion of Newberry Street.

In response, City of Aiken attorneys from the law firm of Nance and McCant’s filed a motion to dismiss, claiming the suit was filed in the wrong jurisdiction. No denials of conflict of interest allegations were made. 

b. On May 9, 2022, John “Drew” Johnson filed a civil appeal complaint against Aiken City Council, Mayor Rick Osbon, City Attorney Gary Smith, and City Manager Stuart Bedenbaugh, in the Court of Common Pleas. Johnson also alleged a conflict of interest involving City Attorney Gary Smith for failing to recuse himself during the March 28, 2022 Aiken City Council hearing regarding the partial privatization of Newberry Street as an integral part of Project Pascalis. 

The same response from the same legal firm as Cornelius vs Aiken City Council was made. Again, City of Aiken attorneys did not dispute the allegation, and sought to have the case dismissed on jurisdictional grounds. 

c. On July 5, 2022. David W. Blake, Luis E. Rinaldini, Dudley Richard Dewar, Jenne Stoker, Beatrice B. McGhee, Gail King, Historic Aiken Foundation, Inc., Green Boundary Foundation, and the South Carolina Public Interest Foundation, filed a lawsuit in the Court of Common Pleas, Second Judicial Circuit of South Carolina, against the City of Aiken. The lawsuit named twenty-eight defendants ranging from Aiken Mayor Rick Osbon to RPM Developers,LLC. 

(2) The following firms and attorneys are representing various city officials and bodies in the Blake et al vs City of Aiken et al lawsuit, in order of appearance

Firm; and LocationAtttorney Clients
Nance and McCants; AikenClark McCants III, Clark McCants IV Aiken City Attorney Gary Smith 
Smith-Robinson, ColumbiaDaniel Plyler, Rachel LeeCity of Aiken, Mayor Rick Osbon, and City Council members 
Lindemann and Davis; Columbia Andrew LindemannDesign Review Board (DRB) and seven DRB members 
James Holley; LandrumJames HollyDRB and members 
David MorrisonDavid Morrison AMDC and commissioners
Davidson, Wren, and Demasters; Columbia. Michael Wren Tim O’Briant 
Womble Bond and Dickinson; CharlestonCharles J. Baker, Molly McDermid, James MyrickRPM Development Partners, LLC; and Raines Company
Nelson Mullins of ColumbiaDwight Drake, Matt Abee, and Madison Guyton Chris Verenes, in his capacity as Vice Chairman and a member of the AMDC


Additional court filings submitted to date include the following:

Osbon, In His Capacity As Mayor, and City CouncilMotion/Protection from Discovery 8/22/2022-09:50
Mayor and City CouncilExhibit B: Discovery Documents
Blake, David W.Service/Acceptance Of Service on Raines Company08/17/2022-08:19
City Of AikenAnswer/Answer08/15/2022-22:45
City Of AikenMotion/Dismiss08/15/2022-22:23
Smith, GaryAnswer/Answer08/11/2022-14:54
Blake, David W.Service/Acceptance Of Service on Rpm Development Partners, LLC08/08/2022-14:41
Blake, David W.Service/Acceptance Of Service on Aiken Design Review Board07/28/2022-09:02
Smith, GaryService/Acceptance Of Service on Gary Smith07/12/2022-14:53
Blake, David W.Summons & Complaint07/05/2022-10:24

(3) After the motion was passed, Chairman Wood was asked which redevelopment plan was referred to in the motion to cancel. The reply was “Redevelopment Plan One” a plan that itself is alleged to be illegal in the Blake et al vs City of Aiken et al lawsuit.

Unlike Project Pascalis, “Redevelopment Plan One” does not identify any properties for demolition and proposes only to renovate Hotel Aiken;
does not privatize a portion of Newberry Street; and does not require relocating existing businesses.

The state’s Community Development Law also requires redevelopment plans to undergo a public hearing by the commission and subsequent approval by the commission’s governing body—in this case Aiken City Council. The AMDC failed to hold a public hearing, and Aiken City Council adopted Redevelopment Plan One via a resolution and not through a publicly noticed ordinance reading.

Since Redevelopment Plan One was not approved in compliance with SC Community Development Law, and Aiken City Council only needs to undergo the formality of rescinding its resolution to approve the noncompliant document.

(4) The entire email from Tim O’Briant confirming various city positions: 

Laws & Bylaws, October 2022, Project Pascalis 2022

The Project Pascalis “RFP”

2 Comments

More Questions Than Answers

by Don Moniak

October 12, 2022

The $100 million plus downtown Aiken demolition and revelopment endeavor known as Project Pascalis was officially terminated by the Aiken Municipal Development Commission (AMDC) on September 29, 2022. Unofficially, the project ended on September 14, 2022, when project developer RPM Development Partners, LLC (RPM) wrote a contract termination letter to AMDC Executive Director Tim O’Briant. By all indications, project work ceased around June 29, 2022, the day a demolition application for six properties was withdrawn by RPM.  

The AMDC and City of Aiken have yet to provide an official report for its justifications for voting to end the project— after it was actually terminated by the developer. However, two AMDC members, Chairman Keith Wood and Vice-Chairman Chris Verenes, did provide individual accounts of what they perceived as the key issue: the delay of the publication of a legal public notice for a Request for Proposals (RFP) in December 2021 until after RPM had been chosen as the developer.

While blame for the illegality of this RFP  has been directed at unnamed city employees, the AMDC has failed to account for the role of its contract attorney, Gary Pope, Jr of the Pope-Flynn law firm; nor does it provide any clarity and context in support of the protests of the two commissioners. The statements made by Chairman Wood and Vice-Chairman Verenes failed to answer the questions: 

  • Why is the role of the AMDC’s legal counsel in preparing and publishing the RFP notice unaddressed?  
  • When should have a legal notice for an RFP been published? 
  • Why was no legal notice for the RFP published in May, 2021; when the AMDC began seeking a new developer after its first choice, Weldon Wyatt’s GAC, LLC, exited the project? 

In his September 29, 2022, statement, AMDC Chairman Keith Wood wrote: 

“AMDC was also informed on June 23, 2022, that staff delayed the publication of a Request for Proposal (RFP) without disclosing the action to the Commission. Subsequent to that decision, the AMDC was advised by staff to sign a Purchase & Sale Agreement (signed on December 3, 2021) without being told the RFP publication was delayed to a future date (December 13, 2021). This resulted in a signed agreement with the developer prior to the issuance of an RFP. Let me be clear, if I had known this…I would never have signed the purchase sale agreement.” 

Mr. Wood then cited “staff’s failure” two more times in his statement for the reason the RFP was not legally valid.

In his September 29th statement, AMDC Vice-Chair Chris Verenes also chose to deflect blame; but was even less specific than Mr. Wood: 

“A deliberate decision was made——WITHOUT OUR KNOWLEDGE OR APPROVAL…to delay running an ad for proposals until after we signed an agreement with a developer.

Why weren’t we told that a unilateral decision was made to delay the RFP? Delayed for reasons that I believe are indefensible.” 

Mr. Verenes provided no details for the reasons for the delay, and since proclaiming “the public deserves no less than the truth,” has not, along with Mr. Wood, released any additional information since September 29th. 

The Public Notice for the RFP was first published in the Aiken Standard on December 13, 2021, ten days after the AMDC had announced the selection of RPM as its “preferred developer,” and republished a second time on December 20, 2021. Publication of a public notice for an RFP involving redevelopment and/or sale of property controlled by a development commission is mandated by South Carolina Community Development Law:

“The commission shall, by public notice, published once a week for two consecutive weeks in a newspaper having general circulation in the municipality, invite proposals and shall make available all pertinent information to any person interested in undertaking a purchase of property or the redevelopment of an area or any part thereof. “ (SC 31-10-110(c))

Laws such as this exist to prevent corruption in the procurement process. They serve to prevent corrupt actions such as bid-rigging or the awarding of contracts to cronies. The law is fundamental to a process that protects taxpayer money and a fair, competitive market for services.

The Affadvit of Publication for the December 13 and 20, 2021 legal Public Notice for the “Request for Proposals”


The Role of Pope-Flynn

The publication was handled by the law firm of Pope-Flynn, which was officially contracted  by the AMDC as Project Pascalis legal counsel in October, 2021.   On November 12, 2021, Pope-Flynn attorney Gary Pope, Jr billed the city for time spent on preparing the notice for the Aiken Standard and correspondence with the paper; all part of a November invoice detailing 62.80 hours of work at a total cost to the AMDC of $19,586.48. 

From November 2021 Pope-Flynn Billing Invoice to AMDC

Pope-Flynn’s next billable action on the RFP notice was on December 9, 2021, when the notice was reviewed by a Pope-Flynn paralegal, and Gary Pope Jr.  sent a “revised notice of RFP to Aiken Standard.”  This was six days after the AMDC announcement it had chosen RPM.

From December 2021 Pope-Flynn Billing Invoice to AMDC

Between November 12th and December 9th, 2021, Gary Pope, Jr. billed the AMDC for 13.3 hours of meeting related business, including a 1.5 hour “meeting with developers” and a “recap” of an AMDC meeting. The AMDC’s $350 per hour legal counsel met twice with commissioners in the two weeks following “correspondence with the Aiken Standard for publication of the public notice;”:

  • November 16, 2021, a meeting of the AMDC “Executive Committee,” composed of Keith Wood, Chris Verenes, and David Jameson. 
  • November 23, 2021, a meeting of the full AMDC lasting 1.75 hours and conducted in closed-door executive session for all but ten minutes. 

Was the subject of this public notice for RFPs discussed during more than three hours of meetings with AMDC members? 

From November 2021, Pope-Flynn Billing Invoice


According to this timeline, an public notice of an RFP notice was not prepared until after the AMDC had purchased seven properties in downtown Aiken for a total cost of $9.6 million.  While commissioners Wood and Verenes directed blame at city employees, they have yet to address the role played by their hired, contract legal counsel from the Pope-Flynn law firm, who was responsible for publishing the RFP after the developer was announced. They have also not identified when the notice of an RFP should have been published.

The May 2021 Solicitation for Proposals

Even if the RFP had been issued between November 12th and December 3rd, the fact remains that the AMDC began soliciting for proposals six months earlier; in May of 2021 following the withdrawal of Weldon Wyatt’s GAC, LLC from the first Project Pascalis endeavor.  This was a period in which Gary Pope, Jr. was performing work for the AMDC under a separate contract with the City, but City Attorney Gary Smith remained the official legal counsel for the commission and the City.

On May 17th, 2021, in an email to David Jameson, Keith Wood, and Chris Verenes titled “Project backgrounder we discussed,” Tim O’Briant wrote: 

“Gents, ‘

Please review this information that would be provided to potential developers we select.” 

Attached to the email were three project documents. 

On May 19, 2021, Tim O’Briant sent out the first solicitation to an unidentified developer in an email titled “deal points memo,” in which he provided the three project documents and wrote: 

“I got the greenlight to send this out earlier than expected so you’ll be the first to receive it formally.” 

Email from Tim O’Briant to unknown developer, possibly Andy Cajka of Southern Hospitality Group.

On June 8, 2021, the AMDC met to discuss developers in a closed-door executive session. In a June 10, 2021, email, Tim O’Briant cautioned everyone attending that meeting to avoid discussions with any developers: 

“While I am pursuing discussions with the single selected developer, I will not be informing the other firms of that and until late next week at the earliest. “

No public notice of a Request for Proposals was conducted before any developers were contacted, interviewed, or chosen. Seven full months passed between the beginning of a search for a new developer and an actual notice for an RFP was issued. 

Commissioners Keith Wood and Chris Verenes are willing to admit the December 13, 2021 public notice was not issued in a legal fashion. But they have yet to address the issue of the AMDC’s involvement in a redevelopment procurement process that began in secrecy in May 2021, when a legal Public Notice for a Request for Proposals was mandated.

As asserted in the Blake et al vs. City of Aiken et al lawsuit filed on July 5, 2022, it is the totality of violations related to the absence of an RFP prior to the AMDC selecting RPM as the Project Pascalis developer that is the enveloping issue: 

“From the inception of Project Pascalis in March, 2021, until December 3, 2021, AMDC never voted to approve or to issue or to publicize an RFP and never issued or publicized an RFP as required by S.C. Code Section 31-10-110(c) to select a developer for Project Pascalis. AMDC has never had a valid redevelopment plan pursuant to S.C. Code Section 31-10-10, et seq., let alone one that describes or includes Project Pascalis. For this reason and because AMDC never conducted a valid RFP, RPM was improperly and unlawfully selected as the developer for Project Pascalis by AMDC on December 3, 2021, and RPM has never been properly and lawfully selected as a developer for Project Pascalis.”

Instead of addressing the entirety of the contention regarding the illegal selection of a developer by the AMDC, commissioners Wood and Verenes chose to address only a narrow portion of the issue. Both commissioners refused to answer any questions after reading their statements on September 29th, and have acquiesced in the City of Aiken’s decision to keep key Project Pascalis documents sealed. 

Mr. Verenes stated “the public deserves no less than the truth.”  Instead of keeping vital documents sealed under the ruse of Freedom of Information Act exemptions. The AMDC can provide the truth by publishing all records related to the now cancelled Project Pascalis; and address the issue of why city employees are bearing the brunt of the blame for the project’s failure while the City’s high paid legal counsel, AMDC members, the City Manager, and City Council escape scrutiny.

Read More: AMDC Resignations, December 9, 2022