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INTERLOCAL AGREEMENT (2)1 N' INTERLOCAL AGREEMENT This Interlocal Agreement is made and entered into this o^l day of 2003 by and between the Community Redevelopment Agency of the City of Clea ater Florida (CRA) a redevelopment agency established pursuant to law and the Downtown Development Board (DDB) a special district organized and operatmg pursuant to the ordmances and laws of the City of Clearwater WHEREAS Florida Statutes 163 387 regmres all taxing authorities to make an annual appropriation in an amount equal to the incremental increase in the ad valorem revenue with the CRA area and WHEREAS the DDB is a taxing authority within the meamng of the statute and WHEREAS the City Commission of the City of Clearwater m 1982 attempted to exempt the DDB from the obligation to make said payment to the CRA and WHEREAS such exemption was not statutorily authorized at the time the ordinance was adopted and WHEREAS the opportunity to create such an exemption has elapsed and WHEREAS the CRA and the DDB wish to enter mto an Interlocal Agreement pursuant to Florida Statues 163 01 in which the DDB agrees to perform certain responsibilities and functions consistent with and in furtherance of the Downtown Redevelopment Plan in return for an amount equal to the difference between the increment payment of $72 894 and the $47 244 the DDB pays the CRA for administration WHEREAS the CRA and the DDB in the spirit of cooperation desire to offer the downtown constituents the opportunity to utilize more efficiently the public dollars collected for each entity and WHEREAS the CRA and the DDB desire to enter mto an Interlocal Agreement outlining the terms and conditions of a loan from the DDB to the CRA funding the purchase of that certain parcel of real estate legally described as R H PADGETT S SUBDIVISION the North 50 of the South 100 of the East 157 of the West 307 of Lot 3 according to the map or plat thereof as recorded m Plat Book H5 Page 27 of the Pubhc Records of Pinellas County Florida WHEREAS the CRA and the DDB have a special obligation to ensure wise and sound admimstration of the programs including the Main Street Program and WHEREAS the CRA and the DDB desire to enter into an Interlocal Agreement outlining the scope of services and responsibilities of the parties NOW THEREFORE in consideration of the covenants made by each party to the other and of the mutual advantages to realized by the parties hereto the DDB and the CRA agree as follows i P g 1 f 4 CRA/DDB Int 1 1 Agr m t sf7: f_ 0o aPi- od (Y) Section 1 Term The term of this Interlocal Agreement will be the date hereof through September 30 2004 Section 2 Intent It is the intent of the parties that the moneys paid to the CRA by the DDB pursuant to Florida Statutes 163 387 commonly referred to as the tax increment payment be returned to the DDB by the CRA the amount in excess of the $47 244 for the administration of the DDB The amount returned to the DDB by the CRA will be in exchange for performance of certam responsibilities and functions consistent with and in furtherance of the Downtown Redevelopment Plan by the DDB Section 3 Responsibilities of the DDB The DDB agrees to market promote and assist with business recruitment The cost of said services shall not be less than the difference between the increment and the cost of administration Section 4 Responsibilities of the CRA 1 Scope of Duties The services that the CRA will provide are a) Prepare correspondence for DDB members b) All DDB funds will be kept m the City s bank account and will be segregated for accounting purposes in the City s records as a separated interest earning fund c) Assist with preparation and monitoring of the annual budget and prepare amendments as necessary d) Prepare monthly financial reports e) Insure that the annual audit is conducted f) Prepare agendas and distribute packets to DDB members prior to each meeting g) Prepare meeting notices for monthly and special DDB meetings h) Attend meetings and records and transcribe minutes including special and sub committee meetings i) Coordinate the clerical work of the election procedures j) Handle all phone inquires and follow up on the calls k) Handle any special mailing notices I) Know the millage rate setting requirements and assure the DDB meets all of the requirements m) Serve as coordinator for the DDB special activities n) Assist in the evaluation of a pubhc relations program o) Solicit sponsorships or support for events and publications p) Assist with event calendar and marketing plan q) Establish a distribution network for the promotional pieces r) make retail retention calls and assist with retail recruitment s) Assist in establishing a downtown office space leasing plan t) Administer the Facade Improvement Grant and Historic Facade Improvement Grant programs u) Assist in lookmg mto other incentive options to improve downtown properties v) Assist with promoting design related programs to the downtown community w) Assist with volunteer recruitment for various downtown projects x) Other admimstrative duties as mutually agreed Section 5 Compensation In return for the above services the CRA shall pay to the DDB this difference upon receiving the increment payment from the DDB The budget for the CRA for services fisted in Section 4 above shall be as follows Personnel and Administration $47 244 P g 2 f 4 CRA/DDB Int 1 1 Agr m t Section 6 Loan Terms a) LOAN The DDB agrees to loan to the CRA the principal sum of FORTY EIGHT THOUSAND and NO/100 Dollars ($48 000 00) b) INTEREST RATE The loan will accrue an interest rate of 0 / c) PURPOSE The proceeds of the loan shall be used only for the purchase of the subject property in accordance with the Contract for Purchase of Real Property by the Community Redevelopment Agency of the City of Clearwater Florida and is attached hereto and made a part thereof as exhibit A Said contract is represented in conjunction with a Contract for Exchange of Real Estate by and between the City of Clearwater Florida and Clearwater Mall LLC approved by the City of Clearwater Commission July 17 2003 and is attached hereto and made a part thereof as exhibit B Said contract outlines the Exchange of Property legally described therein lying adjacent and contiguous to the subject property d) TERM Due on sale e) REPAYMENT The principal amount of the loan shall be repaid to the DDB 1 upon sale of the subject property located at 804 S Washington Avenue Clearwater Florida and those parcels more particularly described in the aforementioned exhibit B Upon sale of said properties for an amount equal to the original purchase price of all parcels in the approximate amount of $1 248 000 the DDB will be reimbursed the entire principal amount of the loan Should the property sell for an amount greater than the original sales price the DDB will be reimbursed the entire principal of the loan plus a proportionate share (3 85 /) of the profit with the CRA and/or the City of Clearwater Florida Should the property sell for an amount Less than the original purchase price the DDB will be reimbursed the entire principal amount of the loan f) SECURITY The loan shall be unsecured Section 7 Notice Sixty (60) days notice by either party to the other pursuant to the Interlocal Agreement shall be given in writing and hand delivered or mailed as follows Chairperson Board of Trustees Community Redevelopment Agency 112 S Osceola Avenue Clearwater Honda 33756 Chairperson Downtown Development Board Post Office Box 1225 Clearwater Honda 33757 Section 8 Entire Agreement This document embodies the whole Agreement of the parties There are no promises terms conditions or allegations other than those contained herein This Agreement shall be binding on the parties their successors assigns and legal representatives Section 9 Fihng Effective Date As required by Section 163 01(11) Florida Statutes the Interlocal Agreement shall be filed with the Clerk of the Circuit Court of Pinellas County after execution by the parties and shall take effect upon the date of fihng P g 3 f 4 CRA/DDB Int 1 1 Agr m t IN WITNESS WHEREOF the parties hereto or their lawful representative have executed this agreement as the date first above written Approved as to form -13TrerD—ItrIff Asknit City Attorney COMMUNITY REDEVELOPMENT AGENCY BY Attest Cyn1 a E Goudeau City erk �4- DOWNT I D_ LOP I T BOARD BY atheny airman P g 4 f 4 CRA/DDB Int 1 1 Agr m t Exhibit A CONTRACT FOR PURCHASE OF REAL PROPERTY BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER FLORIDA PARTIES Andrew Miller a mamed man (herein Seller') of 8034 Peaks Road Mechanicsville Va 32116 Phone (804) 730 2836 and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER FLORIDA a public body corporate and politic of the State of Flonda (herein Buyer' or CRA) of P 0 Box 4748 Clearwater Flonda 33758-4748 ATTENTION Ralph Stone Executive Director (collectively Parties) hereby agree that the Seller shall sell and Buyer shall buy the following real property ( Real Property ) and personal property ( Personalty ) (collectively Property ) upon the following terms and conditions 1 PROPERTY DESCRIPTION LEGAL DESCRIPTION R H PADGETT'S SUBDIVISION the North 50 feet of the South 100 feet of the East 157 feet of the West 307 feet of Lot 3 according to the map or plat thereof as recorded in Plat Book H5 Page 27 Public Records of Pinellas County Honda PERSONALTY NONE 2 FULL PURCHASE PRICE $ 48 000 Payable as follows Amount to be paid for the real property $ 43 500 Reimbursement for Seller relocation & moving expenses $ 4 500 3 MANNER OF PAYMENT City of Clearwater check in U S funds at time of closing $ 48 000 4 PURCHASE PRICE The Full Purchase Pnce as shown herein has been reached through negotiations with the Seller by CRA staff The Full Purchase Pnce is based upon current Just Market Value of $43 500 established by the Pinellas County Property Appraiser for the real property plus additional funds to reimburse Seller for any expenses associated with moving personal property and relocating current tenants 5 TIME FOR ACCEPTANCE, APPROVALS Following execution of this contract by Seller the pnce terms and conditions as contained herein shall remain unchanged and be held unconditionally open for a penod of 45 days following delivery in duplicate original to CRA staff for acceptance and approval or rejection by action of the governing board of the CRA If this agreement is accepted and approved by the CRA it will be executed by duly authorized CRA officials and delivered to Seller within 10 days thereafter If this contract is rejected by the CRA governing board upon initial presentation this contract shall be null and void in all respects and Seller shall be so informed in writing within 5 days of such action 6 TITLE Seller warrants legal capacity to and shall convey marketable title to the Property by Statutory Warranty Deed subject only to matters contained in Paragraph 7 acceptable to Buyer Otherwise title shall be free of liens easements and encumbrances of record or known to Seller but subject to property taxes for the year of closing covenants restnctions and public utility easements of record and no others provided there exists at closing no violation of the foregoing and none of them prevents Buyer's intended use of the Property Seller warrants and represents that there is ingress and egress to the Real Property sufficient for the intended use as described herein 7 TITLE EVIDENCE Seller shall at Seller expense and wrthin 15 days prior to closing date deliver to Buyer a title insurance commitment issued by a Flonda licensed title insurer agreeing to liens encumbrances exceptions or qualifications set forth in this Contract and those which shall be discharged by Seller at or before closing Seller shall convey a marketable title subject only to hens encumbrances exceptions or qualifications set forth in this Contract Marketable title shall be determined according to applicable Title Standards adopted by The Flonda Bar and in accordance with law Buyer shall have 5 days from receiving evidence of title to examine it If title is found defective Buyer shall within 3 days thereafter notify Seller in wnting specifying defect(s) If the defect(s) render title unmarketable Seller will have 120 days from receipt of notice within which to remove the defect(s) failing which Buyer shall have the option of either accepting the title as it then is or withdrawing from this Contract Seller will if title is found unmarketable make diligent effort to correct defect(s) in title within the time provided therefor including the bringing of necessary suits 8 SURVEY Buyer at Buyer's expense within time allowed to deliver evidence of trtle and to examine same may have Real Property surveyed and certified to the Buyer Seller and closing agent by a registered Flonda land surveyor If survey shows any encroachment on Real Property or that improvements located on Real Property encroach on setback lines easements lands of others or violate any restnctions contract covenants or applicable governmental regulation the same shall constitute a title defect The survey shall be performed to minimum technical standards of the Flonda Administrative Code and may include a descnption of the property under the Flonda Coordinate System as defined in Chapter 177 Flonda Statutes 9 CLOSING PLACE AND DATE Seller shall designate closing agent and this transaction shall be closed in the offices of the designated closing agent in Pinellas County Florida within 90 days of the effective date unless extended by other provisions of this contract If either party is unable to comply with any provision of this contract within the time allowed and be prepared to close as set forth above after making all reasonable and diligent efforts to comply then upon giving written notice to the other party time of closing may be extended up to 30 days without effect upon any other term covenant or condition contained in this contract Page 2 of 7 10 CLOSING DOCUMENTS Seller shall furnish closing statements for the respective parties deed bill of sale (if applicable) mechanic s hen affidavit assignments of leases tenant and mortgage estoppel letters and corrective instruments 11 =SING EXPENSES Documentary stamps on the deed unless this transaction is exempt under Chapter 201 24 Florida Statutes shall be paid by the Seller Seller shall also pay title agent closing fees and the costs of recording any corrective instruments Buyer shall pay recordation of the deed 12 PRORATIONS, CREDITS Taxes assessments rent (if any) and other revenue of the Property shall be prorated through the day before closing Closing agent shall collect all ad valorem taxes uncollected but due through day prior to closing and deliver same to the Pinellas County Tax Collector with notification to thereafter exempt the Property from taxation as provided in Chapter 196 012(6) Florida Statutes If the amount of taxes and assessments for the current year cannot be ascertained rates for the previous year shall be used with due allowance being made for improvements and exemptions Assessments for any improvements that are substantially complete at time of dosing shall be paid in full by Seller 13 OCCUPANCY Seller warrants that there are no parties in occupancy other than the Seller or family members or as otherwise disclosed herein Seller agrees to deliver occupancy of the Property at time of closing completely vacant and in broom clean condition unless otherwise stated herein If occupancy is to be delivered before closing Buyer assumes all nsk of loss to Property from date of occupancy shall be responsible and liable for maintenance from that date and shall be deemed to have accepted Property in its existing conditions as of the time of taking occupancy unless otherwise stated herein or in separate writing 14 PROPERTY CONDITION Seller shall deliver the Property to Buyer at time of closing in its present as is condition ordinary wear and tear excepted and shall maintain the landscaping and grounds in a comparable condition Seller makes no warranties other than is disclosed herein in Paragraph 20 ( SELLER WARRANTIES) and marketability of title Buyer's covenant to purchase the Property as is is more specifically represented and subject to the following provisions As Is With Right of Inspection Buyer may at Buyer expense and within 60 days following the Effective Date ( Inspection Penod) conduct inspections tests environmental and any other investigations of the Property Buyer deems necessary to determine suitability for Buyer's intended use Seller shall grant reasonable access to the Property to Buyer its agents contractors and assigns for the purposes of conducting the inspections provided however that all such persons enter the Property and conduct the inspections and investigations at their own nsk Seller will upon reasonable notice provide utilities services as may be required forBuyer's Page 3 of 7 inspections and investigations Buyer shall not engage in any activity that could result in a mechanics lien being filed against the Property without Seller's pnor wntten consent Buyer may terminate this contract by wntten notice to Seller pnor to expiration of the Inspection Penod rf the inspections and/or investigations reveal conditions which are reasonably unsatisfactory to Buyer unless Seller elects to repair or otherwise remedy such conditions to Buyer satisfaction or Buyer at its option may elect to accept a credit at closing of the total estimated repair costs as determined by a licensed general contractor of Buyer's selection and expense If this transaction does not close Buyer agrees at Buyer expense to repair all damages to the Property resulting from the inspections and investigations and retum the Property to its present condition 15 WALK THROUGH INSPECTION At a time mutually agreeable between the parties but not later than the day pnor to closing Buyer may conduct a final 'walk through inspection of the Property to determine compliance with any Buyer obligations under Paragraphs 8 and 14 and to insure that all Property is in and on the premises No new issues may be raised as a result of the walk through 16 SELLER HELD HARMLESS Buyer is self insured and subject to the limits and restnctions of the Ronda Sovereign immunity statute F S 768 28 agrees to indemnify and hold harmless the Seller from claims of injury to persons or property dunng the inspections and investigations descnbed in Paragraph 15(b) resulting from Buyer's own negligence only or that of its employees or agents only subject to the limits and restrictions of the sovereign immunity statute 17 RISK OF LOSS If the Property is damaged by fire or other casualty before closing and cost of restoration does not exceed 3% of the assessed valuation of the Property so damaged cost of restoration shall be an obligation of the Seller and closing shall proceed pursuant to the terms of this contract with restoration costs escrowed at closing If the cost of restoration exceeds 3% of the assessed valuation of the improvements so damaged Buyer shall have the option of either taking the Property as is together with either the 3% or any insurance proceeds payable by virtue of such Toss or damage or of canceling this contract 18 PROCEEDS OF SALE, CLOSING PROCEDURE The deed shall be recorded upon clearance of funds Proceeds of sale shall be held in escrow by Seller's attorney or by such other mutually acceptable escrow agent for a penod of not longer than 5 days from and after closing dunng which time evidence of title shall be continued at Buyer's expense to show title in Buyer without any encumbrances or change which would render Seller's title unmarketable from the date of the last title evidence If Seller's title is rendered unmarketable through no fault of the Buyer Buyer shall within the 5 day period notify the Seller in writing of the defect and Seller shall have 30 days from the date of receipt of such notification to cure the defect If Seller fails to timely cure the defect all funds paid by or on behalf of the Buyer shall upon written demand made by Buyer and within 5 days after demand be returned to Buyer and simultaneously with such repayment Buyer shall retum Personalty and vacate Real Property and reconvey it to Seller by special warranty deed If Buyer fails to make Page 4 of 7 timely demand for refund Buyer shall take title as is waiving all rights against Seller as to any intervening defect except as may be available to Buyer by virtue of warranties contained in the deed The escrow and closing procedure required by this provision may be waived if title agent insures adverse matters pursuant to Section 627 7841 F S (1987) as amended 19 DEFAULT If this transaction is not closed due to any default or failure on the part of the Seller other than to make the title marketable after diligent effort Buyer may seek specific performance or unilaterally cancel this agreement upon giving wntten notice to Seller If this transaction is not closed due to any default or failure on the part of the Buyer Seller may seek specific performance If a Broker is owed a brokerage fee regarding this transaction the defaulting party shall be liable for such fee 20 SELLER WARRANTIES Seller warrants that there are no facts known to Seller that would matenally effect the value of the Property or which would be detnmental to the Property or which would effect Buyer's desire to purchase the property except as follows (Specify known defects. If none are known, write NONE ) Buyer shall have the number of days granted in Paragraph 14 above ( Property Condition ) to investigate said matters as disclosed by the Seller and shall notify Seller in writing whether Buyer will close on this contract notwithstanding said matters or whether Buyer shall elect to cancel this contract If Buyer fails to so notify Seller within said time penod Buyer shall be deemed to have waived any objection to the disclosed matters and shall have the obligation to close on the contract 21 RADON GAS NOTIFICATION In accordance with provisions of Section 404 056(8) Flonda Statutes (1989) as amended Buyer is hereby informed as follows RADON GAS Radon is a naturally occumng radioactive gas that when it has accumulated in a building in sufficient quantities may present health nsks to persons who are exposed to it over time Levels of radon that exceed federal and state guidelines have been found in buildings in Flonda Additional information regarding radon and radon testing may be obtained from your county health unit 22 CONTRACT NOT RECORDABLE, PERSONS BOUND Neither this contract nor any notice of it shall be recorded in any public records This contract shall bind and inure to the benefit of the parties and their successors in interest Whenever the context permits singular shall include plural and one gender shall include all Page 5 of 7 23 NOTICE All notices provided for herein shall be deemed to have been duly given rf and when deposited in the United States Mail properly stamped and addressed to the respective party to be notified including the parties to this contact the parties attorneys escrow agent inspectors contractors and all others who will in any way act at the behest of the parties to satisfy all terms and conditions of this contract 24 ASSIGNABILITY, PERSONS BOUND This contract is not assignable The terms Buyer' Seller' and Broker' (if any) may be singular or plural This Contract is binding upon Buyer Seller and their heirs personal representatives successors and assigns (if assignment is permitted) 25 ATTORNEY FEES, COSTS In any litigation arising out of this contract the prevailing party shall be entitled to recover reasonable attorney's fees and costs 26 TYPEWRITTEN OR HANDWRITTEN PROVISIONS Typewritten or handwntten provisions shall control all pnnted provisions of contract in conflict with them 27 BROKER REPRESENTATION Seller and Buyer covenant with each other that neither is represented by a Real Estate Broker in connection with the transaction contemplated hereby and that no brokerage fee or expense is due to any Broker with respect to this transaction 28 EFFECT OF PARTIAL INVALIDITY The invalidity of any provision of this contract will not and shall not be deemed to effect the validity of any other provision In the event that any provision of this contract is held to be invalid the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision 29 GOVERNING LAW It is agreed by and between the parties hereto that this contract shall be govemed by construed and enforced in accordance with the laws of the State of Flonda 30 COUNTERPARTS, FACSIMILE COPY This contract may be executed in two or more counterparts each of which shall be deemed an onginal and all of which together shall constitute one instrument A facsimile copy of this contract including any addendum attachments and any written modifications hereof and any initials or signature thereon shall be deemed an onginal Page 6 of 7 31 ENTIRE AGREEMENT Upon execution by Seller and Buyer this contract shall constitute the entire agreement between the parties shall supersede any and all pnor and contemporaneous wntten and oral promises representations or conditions in respect thereto All prior negotiations agreements memoranda and writings shall be merged herein Any changes to be made in this agreement shall only be valid when expressed in writing acknowledged by the parties and incorporated herein or attached hereto APPROVED & EFFECTIVE this day of 2003 SELLER at„elu,“,-- A14,_,&1) Andrew Miller Approved as to form Pam Akin City Attorney COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER FLORIDA By Brian J Aungst Chairperson Attest Cynthia E Goudeau City Clerk Page 7 of 7 Exhibit B CONTRACT FOR EXCHANGE OF REAL PROPERTY THIS CONTRACT is made and entered into as of the 12th day of June 2003 by and between the CITY OF CLEARWATER FLORIDA a municipality hereinafter referred to as the City and CLEARWATER MALL LLC a Delaware limited liability company hereinafter referred to as the Owner for the exchange of properties in Clearwater Florida as described herein The parties hereto agree as follows 1 Exchange of Property The City shall convey title to certain real property referred to as Parcel 1 which is described in Exhibit A to this contract to the Owner The Owner shall convey or cause to be conveyed title to certain real property referred to as Parcel 2 which is described in Exhibit B to this contract to the City and Parcel 3 which is described in Exhibit C to this contract to the City The conveyance of Parcel 1 shall constitute full consideration for the conveyance of Parcel 2 and Parcel 3 The conveyance of Parcel 2 and Parcel 3 shall constitute full consideration for the conveyance of Parcel 1 2 Definitions In this contract Seller shall mean the City with respect to Parcel 1 and the Owner with respect to Parcel 2 and Parcel 3 Purchaser shall mean the Owner with respect to Parcel 1 and the City with respect to Parcel 2 and 3 The Parcel 2 Clearwater Automotive Contract shall mean that certain Agreement for Sale and Purchase of Property between Frank L McKinley & Joel Kehrer individuals and Salvage Properties as seller and Owner as buyer dated as of June 12 2003 in the amount of $1 013 050 substantially in the form attached hereto as Exhibit D and made a part hereof The Parcel 3 Contract shalt mean that certain Agreement for Sale and Purchase of Property between Ruth M Mills & Arthur Miller Jr individuals as seller and Owner as buyer dated as of 2003 in the amount of $145 000 substantially in the form attached hereto as Exhibit D and made a part hereof These terms are used for convenience and do not imply the payment of any compensation other than conveyance of real property in exchange for real property 3 Legal Descriptions The legal description of the properties being exchanged between the parties are described as follows a Parcel 1 — See Exhibit A attached b Parcel 2 — See Exhibit B attached c Parcel 3 — See Exhibit C attached 1 edlClearwaterMall\CityOfClearwater\ExchangeAgreementV5Clean 4 Purchase Price It is mutually agreed that the transfer of Parcel 1 by the City to the Owner and the transfer of Parcel 2 and Parcel 3 to the City shall constitute the full and sufficient consideration for the exchange of properties 5 Commission Approval Following the execution of this contract by the Owner this contract shall be held open for acceptance and approval by the Clearwater City Commission for 30 days following receipt in the offices of the City of Clearwater City Manager Unless this contract is unconditionally approved and accepted by the City Commission within the 30 days and written notice of the approval and acceptance delivered to Owner within 30 days following receipt by the aforesaid City Managers Office the Owner may at its sole option and discretion terminate this contract whereupon each party shall be relieved of all further obligations hereunder The City shall cooperate with Owner in a timely manner in the execution of applications necessary and required as to Parcel 1 so that Owner can submit and process applications required to facilitate the Phase 11 redevelopment of Clearwater Mall The only contingency to the City in acquiring fee simple title to Parcel 2 and Parcel 3 is obtaining commercially reasonable title and survey to said parcels 6 Closing Date (a) This transaction shall be closed and the deeds and other closing papers delivered no later than 30 days after receipt of written notice of approval of this contract by the Clearwater City Commission Notwithstanding anything to the contrary in this contract the closing of this transaction is contingent upon the Owner s simultaneous closing on Parcel 2 Clearwater Automotive Contract and the Parcel 3 Contract (b) Seller s Possession After Closing City shall be entitled to remain in possession of Parcel 1 from the Closing until it opens a replacement fire station for service at 565 Sky Harbor Drive Clearwater Flonda currently under construction (the Occupancy Period) and City agrees to use its best efforts to construct and open said replacement fire station In no event shall the Occupancy Period extend past February 28 2004 It shall be the City s responsibility at City s sole cost and expense to remove all personal property equipment and salvage located on Parcel 1 on or before the expiration of the Occupancy Period City shall defend indemnify and hold Owner harmless from all cost expense and liability resulting from Owner s use or possession of Parcel 1 from the period of Closing until City shall deliver possession of same to the Owner Owner shall have the right to make periodic inspections of Parcel 1 during the period of City s possession after Closing including environmental inspections but Owner agrees to conduct such inspections in a manner that will not unduly interfere with City s day to day operation City shall have no responsibility or obligation to raise remove or demolish any of the existing buildings and structures on Parcel 1 Notwithstanding anything to the contrary in this contract the City shall pay Owner the sum of $5 000 per month payable in advance during the Occupancy Period Said payments shall commence on the Closing Date and the first day of each successive month The foregoing paragraph shall survive the Closing of this transaction 7 Title Evidence The Owner shall order and provide to Owner within thirty (30) days after the full execution of this Contract at Owners expense a commitment for title insurance in the amount of $1 200 000 00 which commitment shall show a marketable unencumbered fee simple title in the name of the Owner as to 2 ed\ClearwaterMall\CityOfClearwater\ExchangeAgreementV5Clean Parcel 1 The Owner shall have fifteen (15) days after receipt of said commitment and Survey (as hereinafter defined) for the examination thereof and within said period shall notify the City in writing of any objections to said title If this notification is not given within said time period then said title shall be conclusively deemed to be acceptable to the Owner In the event that the title to Parcel 1 is not good and marketable the City shall have fifteen (15) days thereafter to perfect the title If the defects are not cured within such time then the Owner may cancel this contract or waive the defects and accept the property without deduction on account of said defects A final title insurance policy will be issued to the Owner within fifteen (15) days after closing The Owner at no cost to the City shall order and provide to City a commitment for title insurance in the amount of $1 013 050 00 which commitment shall show a marketable unencumbered fee simple title as to Parcel 2 and a commitment for title insurance in the amount of $145 000 00 which commitment shall show a marketable unencumbered fee simple title as to Parcel 3 The City shall have fifteen (15) days after delivery of said commitments for the examination thereof and within said period shall notify the Owner in writing of any objections to said title If this notification is not given within said time period then said title shall be conclusively deemed to be acceptable to the City In the event that the title to Parcel 2 and Parcel 3 is not good and marketable the Owner shall have forty five (45) days thereafter to perfect the title or cause the title to be perfected If the defects are not cured within such time then the City may cancel this contract or waive the defects and accept the property without deduction on account of said defects A final title insurance policy will be issued to the City within fifteen (15) days after closing The Owner and the City shall mutually agree upon a title insurance company and closing agent provided that the City shall accept the title insurance company in the Parcel 2 Clearwater Automotive Contract and the Parcel 3 Contract 8 Permitted Exceptions The parcels shall be conveyed to the Purchasers subject to no liens charges encumbrances restrictions exceptions or reservations of any kind or character other than the following permitted exceptions a Zoning ordinances and land use regulations b Any easements restrictions or other matters that appear in the commitment and/or survey (excluding standard exceptions) which are not objectionable exceptions and c Any agreements between the parties that are part of this contract 9 Survey The Owner at Owners sole cost and expense may obtain a current survey (the Survey) of the Parcel 1 prepared by a duly licensed land surveyor The Owner at Owner s sole cost and expense shall obtain a current survey of the Parcel 2 and/or Parcel 3 prepared by a duly licensed land surveyor 3 ed\ClearwaterMall\CityOfCiearwater\ExchangeAgreementV5Clean 10 Closings and Possession Subject to satisfaction of the conditions precedent set forth in this Agreement the exchange contemplated herein shall occur simultaneously with the closing of the Parcel 2 Clearwater Automotive Contract and Parcel 3 Contract Said closings shall be simultaneous City shall accept a deed from (i) the sellers under the Parcel 2 Clearwater Automotive Contract instead of the Owner and (ii) the seller under the Parcel 3 Contract City is aware that pursuant to the terms and conditions of the Parcel 2 Clearwater Automotive Contract Clearwater Automotive shall shall have the right to remain in possession of the Parcel 2 property for a period of two (2) years from and after the date of closing and it shall be such occupant s responsibility at occupant s sole cost and expense to remove all personal property equipment and salvage located on this portion of the property on or before the expiration of the two (2) year penod from date of closing 11 Property Taxes To the extent any property taxes are assessed all property taxes shall be prorated at closing 12 Intentionally Deleted 13 Condition Precedent to Owners Obligation to Close The consummation of the transaction contemplated by this contract is contingent upon the following a b Owner s simultaneous closing on Parcel 2 Clearwater Automotive Contract and the Parcel 3 Contract If Owner does not close under the Parcel 2 Clearwater Automotive Contract and the Parcel 3 Contract this contract shall become null and void Parcel 1 having a commercial land use and zoning classification to accommodate the Owners intended Phase II redevelopment of the Clearwater Mall Project c Owners sole and absolute satisfaction condition of Parcel 1 Notwithstanding anything to the contrary in the Agreement have occurred on or before December 31 2003 and a above have not occurred then Owner has the option to whereby the rights and obligations of the parties shall cease with the environmental if the Closing shall not b and c immediately terminate this contract 14 Closing Costs The Owner shall pay the following closing costs and expenses in connection with the closing of Parcel 1 property a All documentary stamps in connection with the conveyance of the b The premium and all search fees payable for the owner s policy of title insurance 4 ed\ClearwaterMall1CityOfClearwater\ExchangeAgreementV5Clean c Recording fees in connection with those instruments necessary to render title acceptable to the Owner and fees d Its costs of document preparation and its attorneys fees The City shall pay its costs of document preparation and its attorneys The Owner shag pay all the costs of the Buyer pursuant to the terms and conditions of the Parcel 2 Clearwater Automotive Contract and Parcel 3 Contract 15 Risk of Loss With respect to Parcel 1 the risk of loss or damage to the premises (other than buildings and other structures on Parcel 1) until delivery of deed is assumed by the City The City further agrees to maintain Parcel 1 and to deliver said Parcel 1 (other than buildings and other structures on Parcel 1) to the Owner in the same condition as when the contract was executed ordinary wear and tear excepted With respect to Parcel 2 and Parcel 3 the risk of loss or damage to the premises by fire or otherwise until delivery of deed is assumed as expressly provided in the Parcel 2 Clearwater Automotive Contract and Parcel 3 Contract respectively Parcel 2 and Parcel 3 will be delivered to the City as expressly provided in the Parcel 2 Clearwater Automotive Contract and Parcel 3 Contract respectively Notwithstanding anything to the contrary in this contract the City its successors and assigns does hereby release and forever discharge Owner Owner's successors officers assigns and all of Owner s respective successors assigns and affiliates and all of Owner s respective present and former members officers employees representatives agents assigns of and from any and all claims demands obligations or liabilities of any nature whatsoever including but not limited to claims for property damages personal injury or death arising out of or in conjunction with the Parcel 2 Clearwater Automotive Contract the Parcel 3 Contract the City s occupation or use of Parcel 2 and the permitted occupation or use of Parcel 2 after the transfer of Parcel 2 as permitted under the Parcel 2 Clearwater Automotive Contract and the City s occupation or use of Parcel 3 Notwithstanding anything to the contract in this contract the City hereby defends indemnifies and holds Owner harmless from and against any claims demands obligations or liabilities of any nature whatsoever including but not limited to (i) claims for in connection with the presence or release of any and all Hazardous Materials (as hereinafter defined) at or on the Parcel 2 and Parcel 3 including without limitation all costs of rei'noval and disposal of any and all Hazardous Materials (as hereinafter defined) all costs of determining whether the Parcel 2 and Parcel 3 are in compliance with applicable local state and federal environmental laws all costs of causing Parcel 2 and Parcel 3 to be in compliance with applicable local state and federal environmental laws all costs associated with claims for damages to persons or property and Owners attorneys fees and consultants fees and court costs (ii) property damages personal injury or death arising out of or in conjunction with the Parcel 2 Clearwater Automotive Contract for the occupation or use of the Parcel 2 or suffered or incurred as a result of the City s or occupation or use of Parcel 2 for any purpose 5 ed\ClearwaterMall\City0fClearwaterlExchangeAgreementV5Clean including the permitted occupation or occupation of Parcel 2 after the transfer of Parcel 2 as permitted under the Parcel 2 Clearwater Automotive Contract except to the extent of Owners negligence or Owners breach of the Parcel 2 Clearwater Automotive Contract and (in) property damages personal injury or death arising out of or in conjunction with the Parcel 3 Contract for the occupation or use of the Parcel 3 or suffered or incurred as a result of the City s occupation or use of Parcel 3 for any purpose except to the extent of Owner s negligence or Owner s breach of the Parcel 3 Contract This indemnification shall include payment of all attorneys fees and costs incurred by Owner in responding to any such claim demand or asserted obligation or liability whether or not a lawsuit is actually filed pertaining to the indemnified matter This indemnification shall survive the closing of Parcel 2 and Parcel 3 and the transfer of title to Parcel 2 and Parcel 3 or the termination of this contract and shall be in addition to any and other rights of Owner set forth herein or provided by law The term Hazardous Materials as used herein includes without limitation hazardous materials hazardous wastes hazardous or toxic substances polychlorinated biphenyls or related or similar materials asbestos or any material containing asbestos or any other substance or material as may be defined as a hazardous or toxic substance by any federal state or local environmental law ordinance rule or regulation including without limitation the Comprehensive Environmental Response Compensation and Liability Act of 1980 as amended (42 U S C Sections 9601 et seq) the Hazardous Materials Transportation Act as amended (49 U S C Sections 1801 et seq) the Resource Conservation and Recovery Act as amended (42 U S C Sections 1251 et seq) the Clean Air Act (42 U S C Sections 7401 et seq) Chapter 376 Flonda Statutes and in the regulations adopted and publications promulgated pursuant thereto 16 Nonassignability Neither party may assign this contract provided however that Owner may assign its rights to another entity owned and controlled by the Clearwater Mall LLC and/or any of its members without City approval 17 No Brokers Each party affirmatively represents to the other party that no brokers have been involved in this transaction and that no broker is entitled to payment of a real estate commission because of this transaction 18- Notices All notices which are required or permitted hereunder must be in writing and shall be deemed to have been given delivered or made as the case may be (notwithstanding lack of actual receipt by the addressee) (i) three (3) business days after having been deposited in the United States mail certified or registered return receipt requested sufficient postage affixed and prepaid or (n) one (1) business day after having been deposited with an expedited overnight courier service (such as by way of example but not limitation U S Express Mail or Federal Express) addressed to the party to whom notice is intended to be given at the address set forth below As to Owner Clearwater Mall LLC c/o The Sembler Company 5858 Central Avenue 6 ed\ClearwaterMall\CityOfClearwater\ExchangeAgreementVSClean With a copy to And As to City With a copy to St Petersburg Florida 33707 Attn Gregory S Sembler Thomas L Mulkey New Plan Excel Realty Trust Inc 563 West 500 South Suite 440 Gateway Tower Woods Cross UT 84087 E D Armstrong III Esquire Johnson Pope Bokor Ruppel & Burns P A Post Office Box 1368 Clearwater FL 33757 1368 William B Horne II City Manager City of Clearwater Post Office Box 4748 Clearwater FL 33758 4748 Pamela K Akin Esquire City Attorney Post Office Box 4748 Clearwater FL 33758 4748 Any party may change the address to which its notices are sent by giving the other party written notice of any such change in the manner provided in this section but notice of change of address is effective only upon receipt 19 Entire Contract This contract and the exhibits referenced herein embodies and constitutes the entire understanding among the parties with respect to the transaction contemplated herein and all prior or contemporaneous agreements understanding representations and statements oral or written are merged into this contract Neither this contract nor any provisions hereof may be waived modified amended discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver modification amendment discharge or termination is sought and then only to the extent set forth in such instrument 20 Applicable Law This contract is construed in accordance with the laws of the State of Florida 21 Headings Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this contract 7 ed\ClearwaterMall\CityOfClearwater\ExchangeAgreementV5Clea n 22 Binding Effect This contract shall be binding upon and shall inure to the benefit of the parties hereto and their heirs personal representatives and successors by law 23 interpretation Whenever the context hereof shall so require the singular shall include the plural the male gender shall include the female gender and neuter and vice versa This contract and any related instruments shall not be construed more strictly against one party than against the other by virtue of the fact that initial drafts were made and prepared by counsel for one of the parties it being recognized that this contract and any related instruments are the product of extensive negotiations between the parties and that both parties have contributed substantially and materially to the final preparation of this contract and all related instruments 24 Time is of the Essence Time is of the essence of this contract Should any period of time specified herein end on a Saturday Sunday or legal holiday (recognized in Clearwater Florida) the period of time shall automatically be extended to 5 00 p m on the next full business day 25 Other Aareements No prior or present agreements or representations shall be binding upon either party unless included in this contract No modification or change in this contract shah be valid or binding upon the parties unless in writing and executed by the party or parties to be bound thereby 26 No Partnership Nothing in this contract shall be construed to constitute the creation of a partnership or joint venture between the parties 27 Counterparts This Agreement may be executed in several counterparts each constituting a duplicate original but all such counterparts constituting one and the same Agreement Countersigned Brian J Aun Mayor Co issioner City Manager CITY CITY OF CLEARWATER FLORIDA g illiam B Horne iI Approved as to form t k Pamela K Akin City Attorney ''' t..Cynthia E Gou • eat, 1 City Clerk Attest ed\ClearwaterMall\CityOfClearwater\ExchangeAgreementVSClean OWNER CLEARWATER MALL LLC a Delaware limited liability company By Title i 9 ed1ClearwaterMall\CityOfClearwater\ExchangeAg reementV5Clean Exhibit A Legal Description for Parcel 1 (To be replaced by an accurate metes and bounds legal description upon completion of the survey required in Section 9 herein ) TRACT I A RESUB OF BASKIN S REPLAT AS RECORDED IN PLAT BOOK 24 PAGE 42 PUBLIC RECORDS OF PINELLAS COUNTY FLORIDA LESS AND EXCEPT THAT PART DESCRIBED AS FOLLOWS BEGIN AT THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 17 TOWNSHIP 29 SOUTH RANGE 16 EAST AND RUN THENCE NORTH 89 46 01 EAST ALONG THE EAST WEST CENTER LINE OF SAID SECTION 17 415 0 FEET THENCE SOUTH 0 21 26 WEST 50 00 FEET THENCE CONTINUE SOUTH 0 21 26 WEST 469 02 FEET FOR A POINT OF BEGINNING RUN THENCE NORTH 89 46 14 EAST 192 95 FEET THENCE RUN SOUTH 69 41 36 WEST 206 20 FEET THENCE RUN NORTH 0 21 26 EAST 70 79 FEET TO THE POINT OF BEGINNING 10 ed\ClearwaterMall\CityOfClearwater\ExchangeAgreementV5Ciean , 1 1 c') (\'' 1 Exhibit B Legal Description for Parcel 2 (To be replaced by an accurate metes and bounds legal descnption upon completion of the survey required in Section 9 herein ) PARCEL #15/29/15/65196/000/0030 PARCEL #15/29/15/65196/000/0032 PARCEL #15/29/15/65196/000/0033 PARCEL #15/29/15/65196/000/0060 PARCEL #15/29/15/65196/000/0061 PARCEL #15/29/15/65196/000/0062 PARCEL #15/29/15/65214/002/0180 I 11 ed\ClearwaterMall\City0fClearwater\Exchang eAgreementV5Clean Exhibit C` Legal Description for Parcel 3 (To be replaced by an accurate metes and bounds legal descnption upon completion of the survey required in Section 9 herein ) PARCEL #15/29/15/65196/000/0034 PARCEL #15/29/15/65196/000/0063 4 12 ed\ClearwaterMall\CityOfClearwater\ExchangeAgreementV5Clean