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03-343491 RU~K 12987 PG 122b
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POST-CLOSING AGREEMENT
THIS POST -CLOSING AGREEMENT (hereinafter referred to as "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 "Home Depot" or "Seller"), THE CITY OF CLEARWATER, a municipal
corporation of the State of Florida (hereinafter referred to as "Clearwater" or
"Purchaser"), and BRYANT, MILLER AND OLIVE, P.A. ("Escrow Agent").
W ! I N E ~ ~ :E. T H:
WHEREAS, Home Depot, as seller, and Clearwater, as purchaser, closed on the
purchase and sale of a tract or parcel of land containing approximately 8.63 acres, lying
and being in Clearwater, Pinellas County, Florida (the "Sale") on August 30, 2002 (the
"Closing" and the "Effective Date"); and
WHEREAS, Clearwater 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 and other appurtenant facilities (the "Community Sports
Complex"); and
(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 Noll 00 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 receipts from Seller of less than Two Hundred Fifty Thousand and
NollOO Dollars ($250,000.00) of purchases (exclusive of all taxes) made by Purchaser,
the Philadelphia Major League Baseball franchise, their agents, contractors or other
fo',
ogt.tKJI> ,".- ,,;:CORDS AND
f\ '\E L;ERVICES DEPARTMENT
ATLOll11455603v6 PO, BOX 4748
(/...KfMJ.rn::p FL 33758-4748
PINELLRS COUNTY FLR
OFF,REC,8K 12987 PG 1227
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 ofthe 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 No/lOO 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 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.
and;
WHEREAS, pursuant to the Price Concession Incentive Provision, Seventy-
Five Thousand and No/lOO Dollars ($75,000.00) of Home Depot's proceeds (the
"Purchase Price Concession Incentive" or the "Escrow Deposit") were withheld by
Escrow Agent to be disbursed to Clearwater and/or Home Depot in accordance with the
Price Concession Incentive Provision; and
WHEREAS, Clearwater requires additional time beyond said three hundred
fifty (350) days within which to make the purchases required under the Price
Concession Incentive Provision; and
WHEREAS, Clearwater and Home Depot wish to modify and clarify the Price
Concession Incentive Provision.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and
other good and valuable consideration exchanged and received between the
parties, the receipt and sufficiency of which are hereby acknowledged by each of
the parties hereto, the undersigned do jointly and severally for themselves, their
successors and assigns do hereby declare, covenant and agree as follows:
1. Price Concession Incentive, The Price Concession Incentive
Provision shall be restated in its entirety as follows:
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 four hundred and eighty
(480) days after Closing as follows:
(i) In the event the Purchaser timely presents the Seller and Escrow Agent
with evidence in the form of sales receipts from Seller of Two Hundred
Fifty Thousand and No/lOO Dollars ($250,000.00) of purchases (exclusive
of all taxes) made by the Purchaser, the Philadelphia Major League
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ATLOl/l1455603v6
PINELLRS COUNTY FLR
OFF,REC,BK 12987 PG 1228
Baseball franchise, their agents, contractors or other parties involved with
the development and construction of the Community Sports Complex, and
further provided that such purchases are made for the development and
construction of the Community Sports Complex, 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)
business days after receipt of such evidence. Timely presentation by
Purchaser to the Escrow Agent and Seller of sales receipts from Seller
must occur within four hundred seventy (470) days after Closing.
(ii) In the event the Purchaser timely presents the Seller and Escrow Agent
with evidence in the form of sales receipts from Seller of less than Two
Hundred Fifty Thousand and Noll 00 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, and
further provided that such purchases are made for the development and
construction of the Community Sports Complex, 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
NollOO 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 receipts presented, four hundred eighty (480) days
after Closing. Timely presentation by Purchaser to the Escrow Agent and
Seller of sales receipts from Seller must occur within four hundred seventy
(470) days after Closing.
2. Fees and Expenses of Escrow A!!ent. Clearwater shall pay any and all
fees and expenses of Escrow Agent. Escrow Agent is not authorized to deduct such fees
and expenses from the Escrow Deposit. Failure of Home Depot to perform any
obligation to Escrow Agent shall not diminish any obligation of Escrow Agent to
Clearwater. Escrow Agent does hereby waive, release and relinquish any rights it may
have by contract, statute or otherwise to use all or any portion of the Escrow Deposit (in
particular, but without limitation, any investment thereof) to payor offset against any
present or future debt or obligation owed to it by Clearwater or Home Depot and agrees
that it shall make no claim against the Escrow Deposit on account of any such
indebtedness or obligation.
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ATLOl/l1455603v6
Or~I~~~LAS COUNTY rLA,
-_______~_ ,8K 12887 PG 1228
3. Notices. Any notice, demand, request, or other communication which any
party hereto may be required or may desire to give hereunder shall be in writing and shall
be addressed as follows:
If to Home Depot:
Home Depot U.S.A., Inc.
2455 Paces Ferry Road, NW
Building C, 20th Floor
Atlanta, Georgia 30339
Attention: JeffIsrael, Esq., Senior Corporate Counsel
Telephone Number: (770)384-2908
Facsimile Number: (770) 384-3042
with a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attn: Daniel R. Weede, Esq.
Telephone Number: (404) 881-7529
Facsimile Number: (404) 881-7777
If to Clearwater:
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
with a copy to:
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
with a copy to:
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
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PINELLRS COUNTY FLR,
OFF,REC,8K 12987 PG 1230
If to Escrow Agent:
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 at such other address as the party to be served with notice may have furnished in
writing to the party seeking or desiring to serve notice as a place for the service of notice.
Notices shall be deemed properly given if either (i) personally delivered (including
delivery by courier service or by Federal Express, UPS or any other nationally recognized
overnight delivery service) to the offices set forth above, in which case they shall be
deemed received on the first business day by which delivery shall have been made to said
offices; or (ii) sent by certified mail, return receipt requested, in which case they shall be
deemed received when receipted for unless acknowledgment of receipt is refused (in
which case delivery shall be deemed to have been received on the first business day on
which such acknowledgment is refused). For the purpose of this Agreement "business
day" shall mean any day which is not a Saturday, Sunday, or federal legal holiday, and on
which banking institutions in Texas are open for the transaction of business.
4. Countemarts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which shall constitute one and
the same instrument.
5. Successors and Assi2DS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and permitted assigns.
6. Governin2 Law. This Agreement shall be governed by and construed in
accordance with the laws ofthe State of Florida.
7. Escrow A2ent. Escrow Agent may resign from its duties under this
Agreement by giving Clearwater and Home Depot forty-five (45) days written notice of
such resignation and delivering all the Escrow Deposit and accounts thereof as Home
Depot directs; provided however that Escrow Agent shall remain obligated to perform its
obligations under this Agreement until such time as a substitute Escrow Agent has been
appointed and approved by Home Depot and Clearwater and has assumed the duties of
Escrow Agent under this Agreement. In performing any of its duties hereunder, Escrow
Agent shall not incur any liability to anyone for damages, losses or expenses, except for
negligence, default or breach of trust, and it shall accordingly not incur any such liability
with respect to (i) any action taken or omitted in good faith upon advice of its legal
counsel, or (ii) any action taken or omitted in reliance upon any instrument, including any
written instruction or notice provided for in this Agreement, not only as to provisions but
also as to truth and accuracy of any information contained therein, which Escrow Agent
shall in good faith believe to be genuine, to have been signed, or presented by a proper
person, and to conform with the provisions of this Agreement.
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___9r?~I;i~~;: COUNTY F"lA
12887 PG 1231
8. No Assil!nment. This Agreement may not be assigned or transferred by
any party without prior written consent of the other parties.
9. Prevailinl! Party's Fees and Expenses. In the event of a dispute between
Clearwater and Home Depot under this Agreement, the prevailing party shall be entitled
to recover from the other party on demand all fees and expenses of said prevailing party
incurred in the enforcement of any right hereunder, including, without limitation,
attorneys' fees for counsel engaged by said prevailing party.
10. Time of Essence. Time shall be of the essence in every provision of this
Agreement.
11. Entire Al!reement. This Agreement represents the entire agreement
between the parties with respect to the disbursement and application of the Escrow
Deposit and supersedes all prior negotiations or agreements between Home Depot
Clearwater, and Bryant, Miller and Olive, P.A. with respect thereto.
[SIGNATURES BEGIN ON THE NEXT PAGE]
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ATLOl/11455603v6
PINELLAS COUNTY FLA,
OFF,REC,BK 12987 PG 1232
IN WITNESS WHEREOF, the City of Clearwater, Florida, Home Depot
U.S.A., Inc., and Bryan, Miller and Olive, P.A. have caused this Agreement to be
executed as of this I~y of August, 2003.
CITY OF CLEARWATER,
FLORIDA, a municipal
corporation of the State of Florida
Countersigned:
~ .:_~.~"J1
William B. Home, II
City Manager
Approved as to form:
Attest:
~u
w~ ~r1",CkHL
A, i~t a . Goudeau' . '7
TJ - City Clerk ",
Pamela K. Akin
City Attorney
Clearwater's Federal Taxpayer Identification Number: 1-6000-289
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PINELLAS COUNTY FLR,
OFF,REC,8K 12987 PG 1233
IN WITNESS WHEREOF, the City of Clearwater, Florida, Home Depot
U.S.A., Inc., and Bryant, Miller and Olive, P,A. have caused this Amendment to the
Purchase and Sale Agreement to be executed as of this day of July, 2003.
HOME DEPOT U.S.A., INC., a
Delaware corporation'
~'
By:
Name:
Title:
#~4
Jeff ISrAAI
Senior Corporete Counsel. Real Esta
(CORPORATE SEAL)
Home Depot's Federal Taxpayer Identification Number: 1-1853319
, 7 2003
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A TLOlIl1455603v6
PINELLRS COUNTY FLR,
OFF,REC,BK 12987 PG 1234
IN WITNESS WHEREOF, the City of Clearwater, Florida, Home Depot
U.S.A., Inc., and Bryant, Miller and Olive, P.A. have caused this Amendment to the
Purchase and Sale Agreement to be executed as ofthis-Z% day of July, 2003.
BRYANT, MILLER AND
OLIVE, P.A.
By'
Name:
Title:
Sf tl ~H. /'~'')
~
9
ATLOll11455603v6