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HOME DEPOT U.S.A., INC Execution Copy April 3, 2002 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is dated as of the Effective Date (as defined below) and is hereby made and entered into by and between HOME DEPOT U.S.A., INC., a Delaware corporation (hereinafter referred to as the "Seller"), and THE CITY OF CLEARWATER, a municipal corporation of the State of Florida (hereinafter refelTed to as the "Purchaser"). WITNESSETH: 'VHEREAS, S~ller desires to sell and Purchaser desires to purchase, upon the terms and conditions hereinafter set forth, that certain tract or parcel of land containing approximately 8.63 acres, lying and being in Clearwater, Pinellas County, and being more particularly described on Exhibit A attached hereto and made a part hereof, together with all rights, easements and appurtenances pertaining thereto (collectively, the "Property"), and subject only to the Permitted Exceptions (as defined below). NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are all hereby acknowledged by each of the parties hereto, the parties hereto agree as follows: 1. Purchase Price. (a) Seller shall sell and transfer the Property to Purchaser, and Purchaser shall purchase the Property from Seller and pay to Seller, by wire transfer, the sum of Three Million Nine Hundred Twenty Five Thousand and No/lOO Dollars ($3,925,000) hereinafter referred to as the "Purchase Price"), subject to adjustment as provided herein. (b) Within five (5) business days after the Effective Date, Purchaser agrees to deposit in escrow with Bryant, Miller and Olive,P.A. ("Escrow Agent"), at its office located at 201 South Monroe Street, Suite 500, Tallahassee, Florida 32301, an earnest money deposit in the amount of Twenty Five Thousand and No/IOO Dollars ($25,000.00) (the "Earnest Money") and the remaining Twenty Five Thousand and No/IOO Dollars ($25,000.00) after the Inspection Period ends for a total Earnest Money deposit of Fifty Thousand and Noll 00 Dollars ($50,000.00). Escrow Agent shall invest the Earnest Money in a federally-insured interest bearing account. Except to the extent otherwise set forth herein, all Earnest Money shall be non-refundable and shall be applied for Purchaser's benefit against the Purchase Price. All interest which has accrued on the Earnest Money shall, under all circumstances, belong to the party which is ultimately entitled to receive the Earnest Money. Purchaser shall pay all escrow fees which are charged by Escrow Agent, and Seller and Purchaser each agree to execute and deliver all documents which are reasonably requested by Escrow Agent to effectuate the escrow of ATLOl/1117634Ivl/51 Purchase and Sale Agreement ,Drew Street, Clearwater, FL; The City of Clearwater; Execution Copy April 3. 2002 the Earnest Money. The parties acknowledge that the Escrow Agent serves as special counsel to the Purchaser and will serve as agent for the title insurer to be selected by the Purchaser. The Escrow Agent's actions in holding and disbursing the Escrow Money shall be deemed ministerial and so long as the Escrow Agent reasonably performs as provided herein, the parties hereby agree to hold harmless and indemnify the Escrow Agent with respect to any loss or damage experienced b)L the Escrow Agent, including reasonable attorneys fees, as a result of its good faith performance in holding and disbursing Earnest Money. (c) At closing, the parties shall deposit with the Escrow Agent, or the Escrow Agent is directed and authorized to retain from the Seller's proceeds, Seventy- Five Thousand and No!IOO Dollars ($75,000.00)(the "Purchase Price Concession Incentive"). Escrow Agent shall invest the Purchase Price Concession Incentive in a federally-insured interest bearing account. All interest which accrues on the Purchase Price Concession Incentive will ratably belong to the party or parties which are entitled to receive the Purchase Price Concession Incentive. The Purchase Price Concession Incentive shall be disbursed by the Escrow Agent no later than three hundred and sixty (360) days after Closing as follows: (i) In the event the Purchaser presents the Seller and Escrow Agent with evidence in the form of sales receipts from Seller of Two Hundred Fifty Thousand and No/IOO Dollars ($250,000.00) of purchases (exclusive of all taxes) made by the Purchaser, the Philadelphia Major League Baseball franchise, their agents, contractors or other parties involved with the development and construction of the Community Sports Complex (as hereinafter defined), the Escrow Agent shall disburse the Purchase Price Concession Incentive to the Purchaser. The Escrow Agent shall make such disbursement, provided the Seller makes no objection to the amount or veracity of the sales receipts presented, of the Purchase Price Concession Incentive to the Purchaser within ten (10) days after receipt of such evidence. (ii) In the event the Purchaser timely presents the Seller and Escrow Agent with evidence in the form of sales re'ceipts from Seller of less than Two Hundred Fifty Thousand and No/IOO Dollars ($250,000.00) of purchases (exclusive of all taxes) made by Purchaser, the Philadelphia Major League Baseball franchise, their agents, contractors or other parties involved with the development and construction of the Community Sports Complex (as hereinafter defined), the Escrow Agent shall disburse the Purchase Price Concession Incentive, together with all accrued interest, ratably between the parties. The ratable disbursement of the Purchase Price Concession Incentive to the Purchaser shall be arrived at by multiplying the Purchase Price Concession Incentive, together with all accrued interest, by a fraction composed of the total amount of sales receipts presented as the numerator and Two Hundred Fifty Thousand and Noll 00 Dollars ($250,000.00) as the denominator. All remaining funds shall then be disbursed to the Seller. The Escrow Agent shall make such disbursement, provided the Seller makes no objection to the amount or veracity of the sales - 2 - Execution Copy April 3, 2002 receipts presented, three hundred and sixty (360) days after Closing. Timely presentation by Purchaser to the Escrow Agent and Seller of sales receipts from Seller must occur within three hundred and fifty (350) days after Closing. 2. Closing Costs. (a) Seller shall pay Seller's attorneys' fees outside of Closing. At Closing, Seller shall pay (i) any documentary revenue stamp taxes and all other taxes and costs associated with the conveyance, excluding recording fees to record the deed conveying the Property to the Purchaser, and (ii) the reasonable costs for any Phase II environmental testing conducted by Purchaser on the Property, if such testing is recommended by Purch~s~r's Phase I environmental report. (b) At Closing, Purchaser shall pay (i) the cost of the preparation of the Survey (as defined below), (ii) Purchaser's attorneys' fees outside of Closing, (iv) all recording fees to record the deed conveying the Property to Purchaser, and (vi) all title insurance fees and premiums. (c) costs and fees. All other costs and fees shall be paid by the party incurring such 3. Taxes and Assessments. All real estate taxes and assessments which are or which may become a lien against the Property shall be satisfied of record by Seller at closing. In the event the Purchaser acquires fee title to the Property between January 1 and November 1, Seller shall, in accordance with Section 196.295, Florida Statutes, place in escrow with the county tax collector an amount equal to the current taxes prorated to the date of transfer, based upon the current assessment and millage rates of the Property and based on payment on November I. In the event the Purchaser acquires fee title to the Property on or after November I, Seller shall pay to the county tax collector an amount equal to the taxes that are determined to be legally due and payable by the county tax collector. However, Seller shall be obligated to pay all personal property taxes for the year in which closing occurs. 4. Closing. The consummation of the purchase and sale of the Property contemplated under this Agreement (the "Closing") shall be held on or before August 31, 2002 (the "Closing Date"), the date, time and place of closing shall be set by Purchaser to coordinate with the closing on the issue of revenue bonds to be issued by the Purchaser to finance the Purchase Price and/or the contemplated sports stadium facility and appurtenances to be partially located on the Property.. Seller agrees to deliver possession of the Property to Purchaser at Closing. At Closing, all of the terms and conditions of this Agreement shall be deemed to have been satisfied and merged into the Deed (as defined below) and shall not survive the Closing, except as specifically set forth in this Agreement. 5. Inspections Prior to Closing. - 3 - Execution Copy April 3, 2002 (a) Subject to any rights or restrictions under any of the Permitted Exceptions, Purchaser, its agents and representatives, shall at all times before the Closing have the privilege, opportunity and right of entering upon the Property in order to conduct such investigations of the Property, including, but not limited to, the physical and environmental conditions thereof, as Purchaser deems necessary or desirable to satisfy , itself as to the condition of the Property, and Purchaser will rely solely upon same and not upon any information (including without limitation environmental studies or reports of any kind) provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement or the documents executed at Closing pursuant to Section 9 hereof. To the extent permitted by law, Purchaser agrees to indemnify, defend and hold harmless Sell~r from and against (i) any and all damages to person or property, and (ii) any and all liabilities, damages, costs and expenses (including without limitation reasonable attorneys' fees and court costs), which arise as a result of or in connection with Purchaser's exercise of its rights pursuant to this Section. This indemnity shall survive any termination of this Agreement regardless of the reason for such termination. (b) Purchaser acknowledges that the Property is being sold "AS IS, WHERE IS" without any obligation of Seller, except as required by law or as expressly set forth herein to the contrary, to perform any repairs, improvements, maintenance or other work to the Property or any part thereof, and without, except as expressly set forth herein to the contrary, any warranties, express or implied, of any kind from Seller, including, but not limited to, warranties of fitness, merchantability, fitness for a particular purpose, habitability, tenantability or environmental condition. Seller expressly disclaims any representations and warranties with respect to the Property, except as specifically set forth in this Agreement, including any representations by any brokers or salesmen, and Purchaser does hereby acknowledge that, in purchasing the Property, Purchaser is relying only upon those representations of Seller concerning the Property expressly set forth as such in this Agreement. Further, in the event Purchaser purchases the Property, Purchaser hereby waives any claim it may have against Seller as to matters related to the Property or Seller. Upon Closing, Purchaser shall assume the risk that adverse matters, including but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser's investigations, and Purchaser, upon Closing, shall be deemed to have waived, relinquished and released Seller (and Seller's officers, directors, shareholders, employees and agents) from and against any and all claims, demands, causes of action (including causes of action in tort), losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees) of any and every kind or character, known or unknown, which Purchaser might have asserted or alleged against Seller (and Seller's officers, directors, shareholders, employees and agents) at any time by reason of or arising out of any latent or patent physical conditions, violations of any applicable laws and any and all other acts, omissions, events, circumstances or matters regarding the Property, except any such claim, demand, cause of action, loss, damage, liability, cost or expense arising out of any breach by Seller of any representation or warranty expressly set forth in this Agreement or the documents executed at Closing pursuant to Section 9 hereof. The provisions of this subsection (b) shall survive Closing. - 4 - Execution Copy April 3. 2002 (c) Within five (5) business days after the Effective Date, Seller shall deliver to Purchaser copies of all surveys and title policies in Seller's possession and relating to the Property (the "Seller Information"). Purchaser acknowledges that Seller does not make any representation or warranty of whatever nature regarding the truth, accuracy, validity, completeness, usefulness, suitability or any other aspect of the Seller Information, and Seller expressly disclaims any such ~representation and warranty. Purchaser further acknowledges that the Seller Information is specific to Seller's use and development of the Property and may not be consistent with the interests of Purchaser in the Property. Purchaser relies on any Seller Information at Purchaser's sole risk. By accepting any Seller Information, Purchaser agrees to release Alston & Bird LLP, the environmental consultant and Seller from any liability that Purchaser may incur as a result of its reliance on the Seller Information. Purchaser hereby agrees that in the event this Agreement is tenn'inated prior to Closing, Purchaser shall return all Seller Information promptly to Seller. The provisions of this subsection (c) shall survive Closing or any earlier termination of this Agreement. 6. Conditions Precedent. (a) Inspection Period. It is agreed that Purchaser's obligations hereunder are conditioned upon Purchaser being satisfied, at Purchaser's sole cost and expense, within the sooner of the ninety (90) day period after the Effective Date or the Closing Date (the "Inspection Period"), with the condition of the Property for the construction, development and operation of Purchaser's intended improvements, including the results of any environmental studies and geotechnical studies desired by Purchaser. Should Purchaser fail to be satisfied with the condition of the Property, Purchaser may, by delivery of written notice to Seller on or before the expiration of the Inspection Period, terminate this Agreement, whereupon this Agreement shall be deemed null and void and of no further force or effect with Purchaser and Seller having no further rights, obligations or liabilities hereunder except as otherwise set forth herein. If Purchaser elects not to terminate this Agreement pursuant to this Section 6(a), Purchaser shall be deemed satisfied with the condition of the Property. (b) Title. Purchaser shall order a commitment for title insurance within five (5) days following the Effective Date and shall have until the date which is sixty (60) days following the Effective Date to examine the title to the Property, and to give written notice to Seller (the "Title Objection Notice") of any objectionable matter or defect which adversely affects the use of the Property for the Purchaser's purposes or otherwise adversely affects the marketability or insurability of the title to the Property (the "Title Objections"). The Title Objection Notice shall be accompanied by a copy of Purchaser's commitment for title insurance. If Purchaser fails to deliver the Title Objection Notice within said sixty (60) day period, Purchaser shall be deemed to have waived such right to object to the Title Objections. If Purchaser does give Seller timely notice of any such objectionable matters, Seller agrees to notify Purchaser within ten (l 0) days following Seller's receipt of the Title Objection Notice as to whether Seller will attempt to cure such Title Objections by the Closing Date. If Seller fails to notify Purchaser within said 10-day period or Seller notifies Purchaser within said lO-day - 5 - Execution Copy April 3. 2002 period that Seller does not intend to attempt to cure any or all of the Title Objections by the Closing Date, then Purchaser shall have the option either to (i) waive its objections hereunder and take title to the Property pursuant to the remaining terms of this Agreement or (ii) terminate this Agreement by giving written notice to Seller prior to the expiration of the Inspection Period. Further, if Seller notifies Purchaser that Seller intends to attempt to cure the Title Objections by the Closing, Date but Seller fails to cure such Title Objections by such date, then Purchaser shall be entitled to exercise its option under subsection 6(b )(i) or (ii) above, provided that the option under subsection 6(b )(ii) above shall be exercised prior to the Closing Date. Upon any termination of this Agreement pursuant to this Section 6(b), this Agreement shall be deemed null and void and of no further force or effect with Purchaser and Seller having no further rights, obligations or liabilities_h~reunder except as otherwise set forth herein. (c) Survey. Purchaser shall, at its sole cost and expense as soon as practicable, but in any case by not later than sixty (60) days following the Effective Date, obtain a current boundary survey of the Property prepared by a professional surveyor and mapper licensed by the State of Florida which meets the standards and requirements adopted by the Florida Department of Professional Regulation, Board of Land Surveyors under Chapter 61 G 17, Florida Administrative Code, or its successor in function ("Survey"). The Survey shall locate all improvements on and within the boundary of the Propeliy as well as the matters described in title search information presented by Seller or Purchaser. Further, the Survey shall reflect and show all easements or other matters referred to in Exhibit "A" hereto and reflect such use rights for all parcels within the common plat recorded in Plat Book 107, Pages 24 and 25, Public Records of Pinellas County, Florida. The Survey shall be certified to Seller, Purchaser (and other parties requested by the Purchaser), the title insurer and its agent, and the date of certification shall be subsequently updated to within thirty (30) days before the date of closing, unless this thirty (30) day time period is waived by the Purchaser and by the title insurer for purposes of deleting the standard exceptions for survey matters and easements or claims of easements not shown by the public records from the owner's title policy. If the Survey shows any encroachment on the Property or that any improvements intended to be located on the Property encroach on the land of others, the same shall be treated as a Title Objection. Adverse matters disclosed by such Survey which impair the marketability of the Property or otherwise materially frustrate Purchaser's contemplated use for a sports stadium facility and associated uses, shall also be treated as a Title Objection. (d) Modifications or Release of Existin€ Restrictions. Easements and Use Ri~hts. (i) The Purchaser and the Philadelphia Phillies Major League Baseball franchisee have negotiated and executed agreements relating to the development and construction of a sports stadium facility consisting of a natural grass ballpark and stadium meeting major league baseball spring training standards, with approximately 7,000 fixed seats, outfield berm seating aild other appurtenant facilities (the "Community Sports Complex"). The proposed plan for - 6 - Execut(on Copy April 3. 2002 creating the Community Sports Complex involves the City's acquisition of the Property pursuant to this Agreement on or before August 31, 2002. (ii) The Property is currently used in conjunction with other adjacent properties for retail shopping center purposes; and, the Property is subject to numerous covenants, restrictions, easements and other matters of record which provide for retail related shopping related use of the Property in conjunction with other properties, but do not allow or provide for the contemplated use of the Property as a part of the Community Sports Complex. The successful closing on the Property and development of the Community Sports Complex will require substantial revision, restatement and modification or release of numerous coyenants, restrictions, easements and other matters of record now affecting the Property as conditions precedent to closing. (iii) Seller and Purchaser shall make a diligent effort to draft, circulate for comment, negotiate or otherwise arrive at a consensus on one or more documents or instruments necessary to modify, amend, restate or release the Property from all matters which are reasonably inconsistent with the contemplated use of the Property for a Community Sports Complex. Any such amendments, modifications, restatements or releases shall address all matters necessary to develop the Community Sports Complex and further induce the Philadelphia Phillies Major League Baseball franchisee to revise and enter into a long-term use agreement with the Purchaser and shall include, but not be limited to the following: 1) prOVIsIon for secondary ingress and egress from Coachman Road, Drew Street and U.S. Highway 19 through the Property to the Community Sports Complex; 2) releasing, modifying or otherwise restating any restriction, use or operation agreement and covenant, easement or other agreement affecting the PropeI1y in a manner that advances the development of the Property as a Community Sports Complex and in a manner satisfactory to the Philadelphia Phillies Major League Baseball franchisee; 3) restricting any stadium improvements to no further south than the existing building improvements now located on the Property; 4) reconfiguring the existing parking site plan to restrict the parking, or substantially all of the parking, now available on the Property for the Community Sports Complex uses (the Purchaser expects to use such parking for player/staff NIP purposes); and 5) provision for the long-term use of the Property by the Philadelphia Phillies Major League Baseball franchise subject to any' revised, amended, restated or modified instruments or documents affecting the Property. - 7 - Execution Copy April 3, 2002 (iv) Within fifteen (15) days of the Execution Date Purchaser and Seller agrees to diligently work to identify all affected or necessary parties and outline the documents or instruments and substance thereof to comply with the conditions precedent described in this Section. Within forty-five (45) days of the Execution Date Purchaser and Seller shall diligently work to prepare and, circulate for comment all documents necessary to comply with the conditions precedent as described in this Section. The Parties hereto recognize and acknowledge that the necessary modification, amendment, restatement or release of the Property from matters of record will require the cooperation and participation of third parties. Neither Seller nor Purchaser shall have any obligation to compel any third party to execute any instrument or bring any suit to resolve any failure to meet or _comply with any condition precedent herein. If the Seller and Purchaser are unsuccessful in curing or removing Title Objections or otherwise complying to the parties' satisfaction with the conditions precedent to Closing prior to the end of the Inspection Period (including specifically the condition precedent in this Section 6(d), the Purchaser shall have the option to either: (1) accept title as it then is with or without an agreed upon reduction in purchase price from Seller, (2) seek to obtain the Seller's approval of an extension to the Closing Date, which may be granted or denied in the sole discretion of the Seller, or (3) terminate this agreement and receive the return of its Earnest Money in full, thereupon releasing Purchaser and Seller from all further obligations under this agreement. (v) It is the intent and the objective of the Parties to secure all necessary documents and instruments contemplated by this Section and obtain execution thereof (in escrow pending closing on the Property) by all affected or necessary parties other than the parties to this agreement thirty (30) days prior to the Closing Date. 7. Covenant to Cooperate in Documenting Charitable Contribution. Upon Closing the City agrees to timely cooperate in documenting the donation of appreciated property to a governmental unit under Section 170 of the Internal Revenue Code represented by the difference between the fair market value of the Property, determined solely by the Seller and not the Purchaser, and the Purchase Price, The provisions of this subsection shall survive Closing. 8. Conveyance of Title. (a) At Closing, Seller shall convey fee simple title to the Property to Purchaser pursuant to a recordable special warranty deed (the "Deed"), subject to all of the following (collectively, the "Permitted Exceptions"): (i) all easements, restrictions and encroachments of record or which would be ascertainable by an inspection or survey of the Property, (ii) all existing zoning laws and ordinances, (iii) all taxes and assessments not yet due and payable, and (iv) all Title Objections waived by Purchaser pursuant to Section 6(b) above. Provided, however, the foregoing shall not be deemed to limit Purchaser's rights pursuant to Sections 6(b) and 6(d) above. The drafting of all documents shall, at the sole option of the Purchaser, be done in a manner which avoids merger of any of the Purchaser's current interests in the Property. - 8 - Execution Copy April 3. 2002 (b) The Deed to be delivered by Seller to Purchaser at the Closing shall contain the legal description of the Property set forth on Exhibit A hereto; provided, however, that if the legal description of the Property based on the Survey and Purchaser's commitment for title insurance differs from Exhibit A hereto, Seller will additionally convey the Property to Purchaser pursuant to the new survey legal description of the Property, if different from Exhibit A hereto, by quitclaim deed. Seller shall be under no obligation to deliver such quitclaim for any interest it may have in any lands other than land within the plat recorded in Plat Book 107, at Pages 24 and 25, Public Records of Pinellas County, Florida, or lands contiguous thereto. (c) Th~ Deed shall include a restriction, which shall touch, concern and run with the land and which limits the use of the Property in substantially the following manner: "No p0l1ion of the Property shall be used for the sale, display, lease or distribution of lumber, hardware items, plumbing supplies, electrical supplies, paint, wallpaper and wallcoverings, hard and soft flooring (including, without limitation, tile, wood flooring, rugs and carpeting), interior design services, kitchens or bathrooms or components thereof (including, without limitation, tubs, sinks, faucets, mirrors, cabinets, showers, vanities, counte110ps and related hardware), indoor and outdoor lighting, window treatments (including, without limitation, draperies, curtains and blinds), cabinets, siding, ceiling fans, gardening supplies, nursery products, pool supplies, patio furniture and patio accessories, non-patio furniture (including, without limitation, home entertainment centers), kitchen appliances (including, without limitation, countertop small appliances and cookware), closet organizing systems, pictures or picture framing, or Christmas trees." 9. Closing Documents. (a) Purchaser and Seller shall execute, obtain and/or deliver at the Closing the following documents (all of which shall be appropriately and duly executed and witnessed where required): (i) the Deed, in form acceptable to Seller and Purchaser, and the title insurer insuring Purchaser's title to the Property; (ii) a Non-Foreign Certificate, in form acceptable to Seller; (iii) a title, possession and lien affidavit certified to Purchaser and the title insurer in accordance with Section 627.7842, Florida Statutes; (iv) such evidence as the title insurer shall reasonably require as to the authority of the parties acting on behalf of Seller to enter into this Agreement and to discharge the obligations of Seller pursuant hereto; (\') a closing statement which sets forth the distribution of the Purchase Price and other funds; - 9 - Execution Copy April 3, 2002 (vi) Affidavit of Seller Regarding Brokers; and (vii) Affidavit of Purchaser Regarding Brokers. (b) Whenever practicable all prepared documents shall be submitted to Seller and Purchaser for review and approval at least thirty (30) days prior to the closing, Seller and Purchaser will approve or provide reasonable comments to all closing documentation to be provided under this Agreement as soon as practicable after receipt. 10. Condemnation and Risk of Loss. (a) In the event that at any time between the making of this Agreement and Closing, all or a material portion of the Property is condemned by any legally constituted authority for any public use or purpose, then Purchaser may elect to either: (a) terminate this Agreement, in which event neither Purchaser nor Seller shall have any further liabilities, obligations or rights hereunder except as otherwise set forth herein, or (b) have the terms of this Agreement remain in full force and effect and binding on the parties hereto. In the event of a condemnation in which Purchaser does not elect to terminate this Agreement pursuant to the foregoing terms, then the term "Property" as used herein shall thereafter refer to the Property less and except any portion thereof taken by such condemnation. (b) Seller assumes all risk of loss or damage to the Property prior to the date of closing and covenants that the Property shall be transferred and conveyed to Purchaser in the same or essentially the same condition as of the date of Seller's execution of this Agreement, ordinary wear and tear excepted. In the event that between the date of this Agreement is executed by Seller and the date of closing, the condition of the improvements on the Property, as such improvements existed on the date this Agreement is executed by Seller, is altered by an act of God or other natural force beyond the control of Seller or by fire or other casualty, in excess of Two Hundred-Fifty Thousand and 00/100 Dollars ($250,000), Purchaser shall not have the right to terminate its obligations under this Agreement by reason thereof, however, the Purchase Price shall be reduced by One Hundred-Fifty Thousand and 00/100 Dollars ($150,000) at closing. 11. Agreement Not Assignable. This Agreement may not be assigned or transferred by either party prior written consent of the other party. 12. Notices. All notices, requests, demands or other communications hereunder shall be in writing and shall be delivered by personal delivery, overnight mail or delivery service, facsimile, or United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Seller: Home Depot U.S.A., Inc. 2455 Paces Ferry Road Atlanta, Georgia 30339 - 10- With a copy to: With a copy to: If to Purchaser: With a copy to: With a copy to: Execution Copy April 3. 2002 Attention: W. Keith Valentine Telephone Number: (770) 384-2740 Facsimile Number: (770) 384-2917 Home Depot U.S.A., Inc. 2455 Paces Ferry Road, NW Building C, 20th Floor Atlanta, Georgia 30339 Attention: Jeff A. Israel, Esq. Telephone Number: (770)384-2908 Facsimile Number: (770) 384-3042 Alston & Bird LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309 Attention: Daniel R. Weede Telephone Number: (404) 881-7529 Facsimile Number: (404) 881-7777 The City of Clearwater Municipal Services Building, 100 South Myrtle Avenue Clearwater, Florida 33756 Attention: Kevin Dunbar, Director of Parks Telephone Number: (727) 562-4800 Facsimile Number: (727) 562-4825 The City of Clearwater 112 South Osceola Avenue Clearwater, Florida 33756 Attention: Pamela Akin, City Attorney Telephone Number: (727) 562-4020 Facsimile Number: (727) 562-4021 Bryant, Miller and Olive, P.A. 201 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Attention: Mark G. Lawson Telephone Number: (850) 222-8611 Facsimile Number: (850) 222-8969 or to such other address as any party may from time to time designate by notice in writing to the other parties. Any such notice, request, demand or communication shall be deemed to have been given on the date of mailing. The refusal to accept delivery by any party or the inability to deliver any communication because of a changed address of which no notice has been given in accordance with this Section shall constitute delivery. - 11 - Execution Copy April 3, 2002 13. Amendment. Neither this Agreement nor any provision hereof may be changed, amended, modified, waived or discharged orally or by any course of dealing, but only by an instrument in writing signed by the party against which enforcement of the change, amendment, modification, waiver or discharge is sought. 14. Legal Fees. In the event legal action is instituted by any of the parties to enforce the terms of this Agreement or arising out of the execution of this Agreement, the prevailing pm1y will be entitled to receive from the other party its reasonable attorneys' fees and court costs actually incurred (without regard to statutory interpretation). 15. Brokers. Purchaser and Seller hereby represent each to the other that they have not discussed this _Agreement or the subject matter hereof with, and have not engaged in any fashion or any connection with this transaction the services of, any real estate broker, agent, or salesman, so as to create any legal right in any such broker, agent, or salesman to claim a real estate commission or similar fee with respect to the conveyance of the Prope11y or the other transactions contemplated by this Agreement. Seller and Purchaser hereby agree to indemnify, to the extent permitted by law, and hold the other harmless from and against any and all claims (including, without limitation, court costs and reasonable attorneys' fees actually incurred in connection with any such claims) for any real estate commissions or similar fees arising out of or in any way connected with any breach of the foregoing representation. 16. Default. In the event the purchase and sale is not consummated because of the inability, failure or refusal, for whatever reason whatsoever, by Seller to convey the Property in accordance with the terms and conditions provided herein, Purchaser, as its sole and exclusive remedy, shall be entitled to either (a) terminate this Agreement by giving written notice to Seller, in which event the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination, or (b) seek specific performance of Seller's obligations hereunder. In the event of a default by Purchaser hereunder, Purchaser shall have ten (10) days after written notice from the Seller to cure the default. Upon Purchaser's failure to timely cure an event of default by Purchaser hereunder and written demand by Seller given after any cure period, Escrow Agent shall deliver the Earnest Money to Seller and Seller shall be entitled, at its sole and exclusive remedy, to retain the Earnest Money as full liquidated damages for such default of Purchaser, whereupon this Agreement shall terminate and the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination. Seller and Purchaser acknowledge and agree that Seller's damages in the event of a default by Purchaser hereunder would be difficult to ascertain and that the Earnest Money represents a fair estimate of such damages, and is not intended as a penalty. 17. Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida. The parties to this Agreement expressly consent to the jurisdiction of and agree to suit in any _court of general jurisdiction in the State of Florida, whether state, local or federal, and further agree that venue shall lie in Pinellas County, Florida. - 12 - Execution Copy April 3. 2002 18. Waiver. Failure of either Purchaser or Seller to exercise any right given hereunder or to insist upon strict compliance with regard to any term, condition or covenant specified herein, shall not constitute a waiver of Purchaser's or Seller's right to exercise such right or to demand strict compliance with any term, condition or covenant under this Agreement. 19. Counterparts. This Agreement may be executed in several counterparts, each of which may be deemed an original, and all of such counterparts together shall constitute one and the same Agreement (a party may execute a copy of this Agreement and deliver it by facsimile transmission, provided however, that any such party shall promptly deliver an origir~al signed copy of this Agreement). 20. Captions. All captions, headings, paragraph and subparagraph numbers and letters are solely for reference purposes and shall not be deemed to be supplementing, limiting, or otherwise varying the text of this Agreement. 21. Severability. The invalidity or unenforceability of a particular provision of this Agreement shaH not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted, 22. Entire Agreement. Time is of the essence of this Agreement. This Agreement constitutes the sole and entire agreement of the parties and is binding upon Seller and Purchaser, their heirs, successors, legal representatives and assigns. 23. Date for Performance. If the time period by which any right, option or election provided under this Agreement must be exercised, or by which any act required hereunder must be performed, or by which the Closing must be held, expires on a Saturday, Sunday or legal or bank holiday, then such time period shall be automatically extended through the close of business on the next regularly scheduled business day. 24. Date of Agreement. The submission of this Agreement to Purchaser for , examination or consideration does not constitute an offer to sell the Property, and this Agreement shaH become effective, if at all, only upon the full execution and delivery thereof by Purchaser and Seller. The "Effective Date" ofthis Agreement shall be the date upon which this Agreement has been executed by both Purchaser and Seller. [signatures begin on following page] - 13 - Execution Copy April 3, 2002 IN WITNESS WHEREOF, the City of Clearwater, Florida, and Home Depot U.S.A., Inc. have caused this Purchase and Sale Agreement to be executed as of this ~ day of April, 2002. CITY OF CLEARWATER, FLORIDA, a municipal co~poration of the State of Florida Countersigned: Brian J. Aungst Mayor-Commissi :-:zr iam B. Home, II City Manager Approved as to [01111: Attest: ~,~;, t~tomey ~-, Purchaser's Federal Taxpayer Identification Number: 51 - t?tJtltJ- ~31 - 14- Execution Copy April 3, 2002 IN WITNESS WHEREOF, the City of Clearwater, Florida, and Home Depot U.S.A., Inc. have caused this Purchase and Sale Agreement to be executed as of this S- day of April, 2002. HOME DEPOT U.S.A", INC., a Delaware corporation _ . By: Name: Title: ~~L~ Jeff Israel Senior COQ)Or~tA ('.()II~sel- Real istate (CORPORATE SEAL) Seller's Federal Taxpayer Identification Number: 58-1853319 ~ -----,,"; ~ 0 4 2UDZ /- - "'\ ,;, " d" _ i.kJ)~ r,r,',," "," ',,',', _, ;; U ;HI ,'" ;:"~. ~ ~,.\, r-/'~ -~, '.'.... " ~ '-:~ v ( ,,;.' ." ,,/ . ~ [,'r! f f;.\.'" ~ (, ~ c. '.t~).,J; ~ ~' \ v I ~ \. -.. ..w .l/ ~ e. ",. & v~ ..r:p.(u.'"*~~(t':{:(~'i,_:7 ~\~ (l~ill.:1,~:.,y l.\~l\.~,"',,,,~.'--- - 15 - Execution Copy April 3, 2002 EXHIBIT A Lot 1, THE CLEARWATER COLLECTION SECOND REPLAT, according to the plat thereof recorded in Plat Book 107, pages 24 and 25, Public Records of Pinellas County, Florida. - . TOGETHER WITH rights of ingress and egress as reserved in Warranty Deed recorded in Official Records Book 1479, page 95, Public Records of Pine lias County, Florida. TOGETHER WITH non-exclusive easements for ingress and egress, the passage and parking of vehicles, the passage and accommodation of pedestrians, separate and common utility lines, construction, reconstruction, development, erection, removal and maintenance of building components and other matters over, on and under the land described in, and all as more particularly created, defined, located and limited in: (1) that certain Operation and Reciprocal Easement Agreement recorded in Official Records book 6440, page 2013; (2) Amendment to and Ratification of Operation and Reciprocal Easement agreement recorded in Official Records Book 6735, page 217; (3) Third Amendment to an Operation and Reciprocal Easement agreement recorded in Official Records Book 6921, page 129; (4) unrecorded Third Amendment dated July 17, 1990, as referred to in the Fourth Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 7541, page 849 which was re-recorded in Official Records Book 7561, page 2125; (5) Fourth Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 7541, page 849 which was re-recorded in Official Records Book 7561, page 2125; and (6) Fifth Amendment to Operation and Reciprocal Easement Agreement recorded in Official Records Book 9664, page 451, Public Records of Pin ell as County, Florida; TOGETHER 'VITH non-exclusive easement rights as granted by Parking and Driveway Easement recorded in Official Records Book 6440, page 2002, as amended by Amended Parking and Driveway Easement recorded in Official Records Book 6735, page 212, Public Records of Pin ell as County, Florida. TOGETHER WITH a non-exclusive easement as described in that certain Drainage Easement Agreement recorded in Official Records Book 6618, page 2190, Public Records of Pin ell as County, Florida. LESS AND EXCEPT those portions of the above easement properties which lie within the properties taken, in fee simple, designated as Parcels 111 and 123 by Eminent Domain Suit No. 99-4965-CI, as evidenced by that Lis Pendens recorded in Official Records Book 10598, page 2406; Stipulated Order of Taking & Final Judgment recorded in Official Records Book 10714, page 617; and stipulated Order of Taking and final Judgment recorded in Official Records Book 10714, page 620; Stipulated Order of Taking and Partial Final Judgment recorded in Official Records Book 10714, page 624; Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10714, page 628; Order of Taking recorded in Official Records Book 10741, page 2041; ATLOl/11176341vl Execution Copy April 3. 2002 Stipulated Final Judgment recorded in Official Records Book 11611, page 1495 and Amended Order of Taking and Stipulated Final Judgment recorded in Official Records Book 11704, page 1408, Public Records of Pine lIas County, Florida. LESS AND EXCEPT those portions of the above easement properties which lie within the properties taken, in fee simple, designated as P.arcel 119 by Eminent Domain Suit No. 99-5089-CI, as evidenced by that Lis Pendens recorded in Official Records Book 10604, page 2207; Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10662, page 353 and Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10874, page 2276, Public Records of PinelIas County, Florida. LESS AND EXCEPT that portion of said Lot 1 taken, in fee simple, designated as PARCEL 120 by Eminent Domain Suit No. 99-4965-CI, as evidenced by that Lis Pendens recorded in Official Records Book 10598, page 2406; Stipulated Order of Taking & Final Judgment recorded in Official Records Book 10714, page 617; and Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10714, page 620; Stipulated Order of Taking and Partial Final Judgment recorded in Official Records Book 10714, page 624; Stipulated Order of Taking and Final Judgment recorded in Official Records Book 10714, page 628; Order of Taking recorded in Official Records Book 10741, page 2041; Stipulated Final Judgment recorded in Official Records Book 1161 I, page 1495 and Amended Order of Taking and Stipulated Final Judgment recorded in Official Records Book 11704, page 1408, Public Records of Pine lIas County. - 17 - A TLOIIJ 117(,34 J v I