AGREEMENT FOR DEVELOPMENT, SALE AND
PURCHASE OF REAL PROPERTY
This is an Agreement for the Development, Sale and Purchase of Real
Property (the "Agreement"), dated as of the date set forth below, between
Clearwater Bay Associates, Inc., a Florida corporation (the "Seller") and Meadow
Pointe General Partnership, a general partnership formed under the Florida
Partnership Act (the "Buyer").
1. Background and Purpose. This Agreement pertains to certain
unimproved real property in Pasco County, Florida, presently known as ▇▇▇▇▇▇
Chapel Lakes and more particularly described on Exhibit "A" attached hereto,
together with any improvements thereon and all appurtenances, including, without
limitation, any and all permits and licenses obtained or applications filed by
the Seller with respect to the real property (to the extent such permits and
licenses are transferable), the benefit of all easements, if any, serving the
real property and the right, title and interest of the Seller, if any,
reversionary or otherwise, in and to any and all land lying between the
boundaries of the land and the rights-of-way of any adjoining public highways,
roads, or streets (collectively the "Property"). As more particularly described
below, the Property does not include, however, certain Excluded Property (as
defined below) and certain exclusive rights to convey potable water sites on the
Property which shall be retained by the Seller to the extent permitted
hereunder.
The Buyer has been organized to engage in the real estate development
business. As provided below, the Seller has agreed to allow the Buyer to develop
and plat the Property and
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following such development, to sell platted single-family building lots and
multi-family building sites (collectively, "building lots") to the Buyer or the
Buyer's designee.
2. Purchase Price and Terms of Payment. Subject to the
adjustments, price escalations, and prorations provided for elsewhere herein,
during the term of this Agreement, the purchase price for the Property shall be
based on the building lot prices set forth on Exhibit "B" attached hereto. At
each of the several closings hereunder, the purchase price for the building lots
then being purchased shall be paid in cash to the Seller by bank wire transfer
or a cashier's check or other check acceptable to the Seller to be delivered to
the Seller at closing. As set forth in Exhibit "B" attached hereto, the base or
1999 building lot prices shall escalate 3% each calendar year thereafter during
the term of this Agreement. Thus, the building lot prices shall escalate on
January 1 of each year during the term of this Agreement, and the escalated
price for such year shall remain in effect through December 31.
3. Master Plan. The parties have agreed upon a master plan for
the development of the Property as a mixed-use project containing a minimum of
3,004 building lots, together with certain retail, commercial and other
non-residential uses as described below (the "Initial Master Plan"). A copy of
the Initial Master Plan is attached hereto as Exhibit "C". With the prior
written consent of the Seller, which consent shall not be unreasonably withheld
or delayed, the Buyer shall have the right to modify the Initial Master Plan
from time to time, provided that no such modification: (a) shall result in a
decrease in the aggregate purchase price, as escalated pursuant to Exhibit "B"
attached hereto, to the Seller, or (b) materially reduce development rights or
materially increase development obligations of the Property as a whole. As used
herein, the "aggregate purchase price" refers to the total monies that would be
realized by the Seller from the development
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of the Property in accordance with the Initial Master Plan based on the building
lot prices set forth in Exhibit "B". The "aggregate purchase price" is intended
to establish a minimum amount to be realized by the Seller from the development
and sale of building lots hereunder and is not intended to in any way limit the
amounts that may be realized by the Seller from the sale of building lots
pursuant to this Agreement and the Master Plan. As used herein, the "Master
Plan" means the Initial Master Plan as modified from time to time pursuant to
this Agreement.
4. Modifications to DRI. The development of the Property is
governed by a development order for ▇▇▇▇▇▇ Chapel Lakes known as DRI 166. A copy
of the DRI and associated development order is attached hereto as composite
Exhibit "D". The parties shall promptly endeavor to obtain a satisfactory
modification to the DRI to: (a) permit the development of the Property
substantially in accordance with the Initial Master Plan; and (b) modify the
exactions relative to transportation improvements that are required for
development in accordance with the Initial Master Plan. The Seller agrees to
timely execute all reasonable applications and documents required to modify the
DRI and cooperate fully with the effort to obtain such modification. The
modifications sought to the existing DRI shall be acceptable to both parties. In
particular, the parties shall endeavor to: (a) pay transportation impact fees to
Pasco County as the development progresses in lieu of making offsite roadway and
other infrastructure improvements or, alternatively, (b) obtain a phased
schedule of roadway and other infrastructure improvements which will minimize
the amount of "front end" expenditures and facilitate the cost effective
development of the Property in accordance with the Initial Master Plan, in which
case transportation and other impact fee credits shall be obtained for all such
improvements. For purposes of this Agreement, "front end" expenditures means
those expenditures made to construct basic public infrastructure improvements,
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including, but not limited to, off site roads, water lines, storm water
management facilities, and wastewater management facilities. During the term of
this Agreement, no impact fees or front end expenditures shall be paid by the
Seller. Any impact fee credits received with respect to such fees or
expenditures shall only benefit the Property. The parties shall attempt to
obtain compensation (in cash or by way of transportation or other impact fee
credits) for all rights-of-way, easements or similar exactions of real property
required pursuant to the modified DRI. The parties shall also endeavor to
maximize the permissible density that may be developed on the Property, as well
as maximize the acreage available for commercial and non-residential uses. To
the extent such densities and entitlements are not required to develop the
Property in accordance with the Master Plan, the Seller shall retain all rights
with respect thereto and may seek to sell or assign such excess entitlements to
the Buyer or to others for use in the development of other lands that are not
the subject of this Agreement.
If the modifications of the existing DRI are not acceptable, either
party may, in its sole and absolute discretion, terminate this Agreement,
provided that if the modifications are not acceptable to the Seller, the Seller
shall inform Buyer thereof, in writing, within 10 days of written notification
of a modification deemed unacceptable to the Seller. If the Seller does not
notify Buyer within such 10 day period, the modifications to the DRI shall be
deemed to be approved by the Seller. The cost of modifying the DRI shall be
evenly shared by the Buyer and Seller, provided that the Buyer shall be solely
responsible for all costs after Seller has expended $50,000. With the Seller's
written consent, which consent shall not be unreasonably withheld or delayed,
the Buyer shall hire such consultants and professionals as are required to
modify the DRI. Invoices for costs associated with the modification of the DRI
shall be submitted to the Seller on a monthly basis, and the Seller shall
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reimburse the Buyer for its one-half share of such costs within ten working days
following receipt of such invoices.
5. Phasing of Development. The development of the Property in
accordance with the Master Plan shall occur in phases as depicted on the Phasing
Schedule attached hereto as Exhibit "E". A part of the first phase consisting of
approximately 400 building lots in the southern end of the Property shall be
physically connected to the existing Meadow Pointe community (the "Meadow Pointe
Expansion Parcel"). Following the development of the Meadow Pointe Expansion
Parcel and the balance of the first phase, the development shall proceed in
additional phases, including a phase in the northern part of the Property that
will be accessed from an entrance on ▇▇▇▇▇ ▇▇▇▇ ▇▇. Except for the phase or
phases that are accessed from State Road 54, it is anticipated that the
development of the Property will be physically connected to the existing Meadow
Pointe community. Although the development constructed pursuant to the Phasing
Schedule need not be contiguous, all development shall be served by the
arterial, collector and other roads constructed in accordance with this
Agreement and as shown on the Master Plan, and all utility lines and other
infrastructure shall be sized to serve the entire development as shown on the
Master Plan. With the Seller's prior consent, which consent shall not be
unreasonably withheld or delayed, the Buyer shall have the right, from time to
time, to modify the Phasing Schedule, provided such modification does not
materially impair or reduce the value of the balance of the Property.
6. Community Development District Financing.
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a. Formation and Control of CDDs. To facilitate the financing and
development of the Property in accordance with this Agreement, the Buyer shall,
at its expense, petition Pasco County to establish on an appropriate time table
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two or more community development districts pursuant to Chapter 190, Florida
Statutes. The Seller agrees to execute and/or consent to the filing of the
necessary petitions with Pasco County, and to cooperate fully with the Buyer's
effort to establish the new districts. As used herein, the term "CDDs" refers,
individually and collectively, to the new districts to be formed
to develop the Property. During the term of this Agreement, the Seller agrees
that it shall cast its votes at landowner elections for the newly-formed CDDs as
reasonably directed by the Buyer to ensure that three persons designated by the
Buyer are elected to the Board of Supervisors of the CDDs. The Seller, at its
option, may designate and elect two members of the Board of Supervisors of the
newly-formed CDDs, provided, however, that when the registered voters within any
such newly-formed CDD are entitled to representation on the Board of
Supervisors, the Seller shall relinquish its seats on the Board in order to
allow the Buyer to remain in control of the district as long as possible. Except
as to matters contemplated in this Agreement and official actions taken by
representatives of the Seller serving on the Board of Supervisors, the Seller
shall have no other responsibility or obligations with respect to the CDDs.
b. Bonded Indebtedness; Special Assessments. The CDDs will, from time
to time, issue special assessment revenue bonds to finance the acquisition or
construction of community development infrastructure improvements that will
benefit the Property. The Buyer shall be entitled to receive management fees
from the CDDs for supervising the construction of infrastructure improvements,
provided such fees are based on commercially reasonable hourly charges for the
time actually spent on such construction supervision as set forth in the
management agreement, the form of which is attached hereto as Exhibit "F". In no
event shall construction supervision fees exceed 5% of the bond proceeds
deposited in the construction account. The Seller acknowledges and agrees that
the lien of such special assessments will be coequal in dignity with the lien of
ad valorem taxes.
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The Seller further acknowledges and agrees that the CDDs will be issuing
long-term or "Series A" bonds which will constitute a lien on the Property for a
period or periods of 30 years or less, as well as short-term or "Series B" bonds
which will be paid in full upon the conveyance of building lots at the several
closings hereunder, or, alternatively before the improved building lots are sold
to consumers. As used herein, "Bonded Indebtedness" refers to both the Series A
and Series B bonds. All Bonded Indebtedness incurred by the CDDs shall be
subject to prior review and approval by the Seller, which approval shall not be
withheld or delayed, as long as: (a) the Bonded Indebtedness to be incurred is
for the acquisition or construction of infrastructure improvements permitted
under Chapter 190, Florida Statutes and associated financing costs; (b) the
infrastructure improvements to be acquired or constructed will provide special
benefit to the Property or the portion of the Property then being developed; and
(c) the amount of Bonded Indebtedness is commercially reasonable based on the
amount of debt incurred and assessments levied upon building lots of comparable
size by other community development districts in Hillsborough and Pasco Counties
as evidenced by a certificate from the Financial Advisor (as defined below) to
the CDDs. Without the Seller's prior written consent, the Buyer agrees that the
CDDs will not incur long term or Series A debt in an aggregate principal amount
in excess of $25.0 million. Before the CDDs incur any Bonded Indebtedness, the
Buyer shall provide written notice thereof to the Seller, together with
reasonable supporting documentation concerning the proposed bond issue and the
associated levy of special assessments. The Seller shall then have a period of
10 days following such notification to raise any objections thereto. If the
Seller does not provide written notice of an objection within such 10 day
period, then the proposed bond issue and associated levy of special assessments
shall be deemed to be approved by the Seller. At the closings on the bond issues
by the CDDs, the Seller
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shall consent to the imposition of the special assessments and execute such
other instruments as are reasonably necessary to effectuate the bond closings,
provided, however, that the Bonded Indebtedness shall be secured solely by the
special assessments and shall be non-recourse as to the Seller. Except as to the
Bonded Indebtedness, the Buyer shall not cause any liens or encumbrances to
attach to any portion of the Property that is owned by the Seller without the
Seller's prior written consent.
c. Buyer's Guarantee. The Buyer (or either partner of Buyer) agrees
that it will pay or cause to be paid ad valorem taxes and all special
assessments of the CDDs (collectively, the "Liens") on the Property until such
time as building lots are sold to the Buyer or to builders or other third
parties. To ensure that the Liens are paid in a timely manner, the Buyer shall
guarantee payment of the Liens on the lands owned by the Seller during the term
of this Agreement on an ongoing basis for successive one year periods. The
amount of the Buyer's guarantee shall be based upon a certificate (the
"Guarantee Certificate") prepared each year, at no expense to the Seller, by
Rizzetta & Company, Incorporated, the firm that is expected to serve as
financial advisor to the CDDs, or by another qualified firm, reasonably
acceptable to the Seller, that is hired by the CDDs to provide similar financial
advisory services (the "Financial Advisor"). With respect to that portion of the
Property not owned by the Buyer, Buyer's designee, or their respective
successors-in-title as of the date of each such certificate, the Guarantee
Certificate shall set forth: (a) the estimated amount of ad valorem taxes for
the following calendar year based on the "TRIM" notice prepared by the Pasco
County Property Appraiser using the current assessed value and the current
millage rate in effect, and (b) the total amount of special assessments for
Bonded Indebtedness that will be levied and become due and payable during the
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following calendar year, regardless of whether such special assessments will be
included in the Seller's ad valorem tax ▇▇▇▇ or separately invoiced to the
Seller by the CDDs. The Financial Advisor shall prepare the initial
Guarantee Certificate as of July 31, 2000 and an updated Guarantee
Certificate shall be prepared as of July 31 of each ensuing year during the term
of this Agreement.
The Buyer's guarantee shall be secured by a non-contingent, irrevocable
bank letter of credit furnished by the Buyer (or either partner of the Buyer)
for the benefit of the Seller (the "LC"). The LC shall be issued on or before
August 15, 2000 by IBJ Whitehall Bank and Trust Company of New York or another
bank selected by the Buyer and reasonably acceptable to the Seller (the "Issuer
Bank"). The LC shall be delivered to the Seller. The Buyer shall cause the LC to
be renewed annually thereafter during the term of this Agreement in the amount
of the updated guarantee as set forth each year in the Guarantee Certificate. If
not already renewed by Buyer, the Seller shall notify the Buyer in writing of
the requirement to renew the LC at least 30 days prior to the expiration
thereof, but failure of Seller to do so shall not preclude Seller from drawing
under the LC as hereinafter provided. If the Buyer does not then furnish a
renewal LC in the amount of the updated guarantee, then the Seller may present a
sight draft pursuant to the existing LC and otherwise in accordance with this
paragraph and the terms of this Agreement during the 15 day period prior to its
expiration. The LC shall provide for payment to the Seller upon presentation of
a sight draft accompanied by an affidavit signed by the Seller stating that: (a)
Liens upon lands owned by Seller are now due and owing or Buyer (or either
partner of Buyer) has not renewed the LC as required by this Agreement, (b)
Seller has made written demand on Buyer to pay such Liens if such Liens are due
and payable, and (c) the Seller has received no notice from the Buyer that
Seller is in "material default" hereunder, of if the Buyer has made such a claim
that the matter has been resolved by
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arbitration or litigation as provided elsewhere in this Agreement with a finding
that the Seller is not in "material default" hereunder. As used in this section,
the Seller is in "material default" if the Seller has breached this Agreement in
a manner that prevents or seriously impairs the Buyer's ability to develop the
Property and purchase building lots in accordance with this Agreement. If the
Buyer asserts that the Seller is in material default of its obligations
hereunder, it shall: (a) so notify the Seller in writing, and (b) simultaneously
extend the expiration date of the LC for a period of one year from the date of
such notice. The Buyer's claims against the Seller and the Seller's entitlement
to draw upon the LC shall then be determined by arbitration or legal proceedings
as provided elsewhere in this Agreement. Failure of Buyer to so extend the
expiration date of the LC shall entitle Seller to draw under the LC upon
presentation of a sight draft accompanied by an affidavit signed by Seller
stating that Buyer has failed to extend the expiration date of the LC after
serving notice on Seller asserting that Seller is in material default under this
Agreement.
7. Easements and Conveyances. During the term of this
Agreement, the Seller shall, without cost to Buyer, upon Buyer's request, grant
temporary or permanent easements or convey fee title to Pasco County, the CDDs
or other governmental agencies, utility companies, or, with the Seller's prior
written approval, which approval shall not be unreasonably withheld or delayed
any other party designated by Buyer, over or under any portions of the Property
for the purpose of: (a) installing roads, sewer, water, other utilities, or
drainage facilities of any kind, including, but not limited to, pipes, detention
or retention ponds, ditches, and ▇▇▇▇▇▇, as may be needed to facilitate the
development of any portion of the Property and (b) preserving wetlands and other
conservation areas that cannot be developed as building lots. Any compensation
for easements and conveyances made pursuant to this section shall be paid to the
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Seller. The Seller acknowledges, however, that no compensation is presently
paid (nor is any compensation anticipated to be paid in the future) for the
granting of such easements and conveyances. The form of the easements or
instruments of conveyance shall be as reasonably determined by the appropriate
governmental or quasi-governmental agency or utility, or, if they do not
determine the form, by the Buyer. The location of the easements and fee
conveyances shall be consistent with the Master Plan for the Property. Buyer
agrees that in the event that it fails to purchase the balance of the Property,
upon request of Seller, Buyer shall likewise grant or, to the extent the Buyer
is in actual or constructive control thereof, shall cause other entities to
grant such easements and other conveyances pursuant to by this Section that are
necessary for the orderly development of the balance of the Property to Seller,
at no cost to Seller, consistent with the Master Plan as it may be reasonably
modified by Seller. This provision shall survive the termination of this
Agreement.
8. Technology Rights. During the term of this Agreement, Buyer
shall have the right to grant leases, easements and other use rights over,
across, under and through the Property to third parties for the purpose of the
installation of technological facilities. These facilities may include, without
limitation, towers for the installation of microwave transmission antennas,
cellular telephone and PCS antennas; fiber optic cable; cable television, if
permitted by Pasco County; and any other technological transmission line or
facility designated by Buyer. Upon the request of Buyer, Seller shall execute
any such lease, easement, use right or other document as may be reasonably
requested by Buyer. All revenue derived from such activities shall be shared
equally by the Buyer and Seller. In the event that this Agreement terminates,
Buyer's rights pursuant to this paragraph shall terminate as to any portion of
the Property which has not been conveyed by Seller to Buyer or Buyer's designee
pursuant to this Agreement.
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9. Construction of Infrastructure. The Buyer and the CDDs
(including their respective agents and contractors) shall have the right to
enter onto the Property to construct roads, together with drainage facilities,
underground utility lines, entry walls, and all other subdivision infrastructure
which are permitted to be constructed by the CDDs pursuant to Florida law
(collectively, the "Infrastructure") provided: (a) the Infrastructure is
constructed in accordance with Pasco County specifications and complies with all
rules and regulations of governmental agencies having jurisdiction over it, (b)
the Infrastructure is consistent with and is appropriately sized as necessary to
accommodate the development as set forth in the Master Plan, (c) the Buyer or
the CDDs pay the cost of constructing the Infrastructure, and (d) any
Infrastructure consisting of roads and utilities lines are connected to existing
public rights of ways and utility lines dedicated to Pasco County and/or
existing rights of ways owned by the Meadow Pointe II Community Development
District (the "MPII CDD"), in which latter case the Buyer shall cause the MPII
CDD to grant perpetual easements for ingress and egress over such roadways for
the benefit of that portion of the Property served by the Infrastructure. With
respect to all contracts in excess of $200,000 for the construction of
Infrastructure, the Buyer and/or the CDDs shall cause the contractor to obtain a
payment and performance bond in statutory form or otherwise reasonably
acceptable to the Seller.
10. Platting; Deed Restrictions. During the term of this
Agreement, the Seller shall, without cost to Buyer, upon Buyer's request, timely
join in the execution of subdivision plats required in connection with the
development of the Property. All plats for the Property shall be consistent with
the Master Plan and the Phasing Schedule as modified from time to time. The cost
of preparing and filing subdivision plats shall be borne by the Buyer or the
CDDs. During the term of this Agreement, the Seller shall also, without cost to
Buyer, upon Buyer's request, timely execute,
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or join in the execution of, covenants, restrictions and conditions regulating
the residential use of the Property then being platted.
11. Non-Residential Property. Although included in the ▇▇▇▇▇▇
Chapel Lakes DRI, the non-residential property along ▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ extension, and the proposed golf course site lying east of the
Property as shown on Exhibit "C" (collectively the "Excluded Property") is being
retained by the Seller and is not subject to this Agreement, except that the
development and proposed uses thereof shall be governed by the Master Plan and
shall be reasonably acceptable to the Buyer. The Buyer acknowledges that it is
acceptable for the Excluded Property to be used as a golf course or other
recreational facility. The Excluded Property shall not be included in the CDDs.
In no event (except upon the termination of this Agreement) shall the Seller
develop the Excluded Property as a competing residential subdivision.
The retail and other non-residential uses on proposed County Road 56
(the "CR 56 Property") shall be marketed and sold by the Seller in a manner
consistent with the Master Plan. The Buyer shall provide access and utility
service to the CR 56 Property by constructing collector roads and related
infrastructure during the ordinary course of its development of the residential
portions of the Property pursuant to the Master Plan. The net sales proceeds
received from the sale of the CR 56 Property shall be split between the parties
as follows: (a) first, the Seller shall receive $6,000 per gross acre for such
property (which shall be prorated as necessary for fractional acres), (b)
second, the Seller shall be reimbursed from the net sales proceeds for any costs
reasonably incurred by the Seller to improve such CR 56 Property for sale, and
(c) third, the remaining net sales proceeds then shall be divided with the
Seller receiving 50% and the Buyer receiving 50%, provided this Agreement is in
full force and effect and the Buyer is not in material default hereunder. As
used
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herein, "net sales proceeds" means the mutually agreed upon gross sales price of
the CR 56 Property, or portion thereof, as actually received at closing less
those usual and customary closing expenses ordinarily borne by the sellers of
real property in Pasco County, Florida.
12. Property Taxes. Beginning January 1, 2000 and continuing
thereafter during the term of this Agreement, the Buyer shall be responsible for
paying all ad valorem taxes assessed against the Property, except the Excluded
Property. In addition, if Buyer excludes the Taxing District Parcel (as defined
below) and/or any environmentally contaminated land from this Agreement as
provided elsewhere herein, the Buyer shall not be required to pay ad valorem
taxes on such excluded lands and the Seller shall promptly reimburse Buyer for
all taxes paid prior to Buyer's election to exclude such lands from this
Agreement. Seller and Buyer shall endeavor to maintain an agricultural or "green
belt" exemption on all portions of the Property not in active development.
Either party may, at its expense, challenge the assessment or the denial of an
exemption with respect to any portion of the Property by initiating
administrative or judicial proceedings. The parties agree to cooperate with any
such challenge and to join in the execution of all petitions and other
instruments needed in connection with a challenge. The Seller represents that
the Property is presently leased for cattle grazing pursuant to the Lease
Agreements attached hereto as composite Exhibit "G" (collectively the "Leases").
The Buyer shall be entitled to all rental income received pursuant to the Leases
(or any subsequent leases) from cattle grazing and other agricultural uses of
the Property during the period in which Buyer is responsible for paying and pays
the ad valorem taxes. Upon expiration or termination of the Leases, the Seller
shall execute such other agricultural leases of the Property as Buyer may from
time to time negotiate, provided, however, that if the Buyer fails to timely
negotiate agricultural leases thereby placing the "greenbelt"
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or agricultural exemption in jeopardy, then the Seller shall have the right to
enter into agricultural leases. Without the Seller's prior written consent, any
new agricultural lease negotiated by the Buyer shall be on a year-to-year basis
or, alternatively, shall be terminable by the Seller in the event of a
termination of this Agreement. Notwithstanding the foregoing, the Buyer's
obligation to pay ad valorem taxes on the Property owned by the Seller shall
terminate if the Seller takes any action which causes the Property owned by
Seller to become ineligible for a "greenbelt" or agricultural exemption. The
Buyer shall not impair access to Seller and agricultural tenants via existing
unimproved dirt roads or trails to all lands not in active development which are
available for agricultural use or future development. The Seller may, at its
expense, construct additional unimproved dirt roads or trails to lands not in
active development, provided the foregoing does not impair the Buyer's
development of the Property pursuant to the Master Plan and the Phasing
Schedule, as amended from time to time.
13. Contract Benchmarks and Take Down Schedule.
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a. Engineering and Construction. The Buyer agrees to use its best
efforts to cause: (i) Buyer's civil engineer to begin work on construction plans
for the first units or plats in the Meadow Pointe Expansion Parcel by January 1,
2000, and (ii) the actual construction of infrastructure for the first units or
plats in the Meadow Point Expansion Parcel to begin by July 1, 2000. Although
the Buyer shall proceed in good faith and use reasonable diligence to meet these
contractual milestones, the Seller acknowledges that the Buyer may be delayed
because of events of force majeure, adverse weather, or unexpected delays in
obtaining the necessary permits from governmental agencies. If the actual
construction of infrastructure for the first plats or units in the Meadow Pointe
Expansion Parcel has not begun by August 1, 2001 and the Seller contends that
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the delay has been caused by Buyer's failure to exercise reasonable diligence in
obtaining the necessary permits, then the dispute shall be submitted to
arbitration for resolution as provided elsewhere in this Agreement. If the
arbitrator concludes that the Buyer has not exercised reasonable diligence under
the circumstances, then the Seller may, at its option, terminate this Agreement.
b. Building Lot Takedowns. To keep this Agreement in effect and
preserve the Buyer's right to purchase additional building lots from Seller,
beginning in 2001 and in each calendar year thereafter during the term of this
Agreement, the Buyer shall purchase building lots which shall generate gross
sales proceeds in annual aggregate amounts not less than as set forth in the
Minimum Sales Schedule attached hereto as Exhibit "H". The Buyer may, at the
Buyer's option, purchase more building lots than are required to satisfy the
Minimum Sales Schedule, in which case the amount of such "excess" and early
purchases, escalated as if the purchases had been made in accordance with the
Minimum Sales Schedule, shall be credited against the Buyer's purchase
obligations for the ensuing calendar quarters or years. Subject to the
provisions of this section, the Buyer shall purchase at least 25% of the annual
amount required pursuant to the Minimum Sales Schedule during each calendar
quarter. The Buyer may, at its option, direct Seller to convey title to the
building lots being purchased directly to builders.
14. Title to Real Property; Title Insurance/Survey.
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a. Representations; Acceptable Encumbrances. The Seller shall convey
and transfer to the Buyer or the Buyer's designee at each of the several
closings hereunder, good and marketable fee simple title to the Property being
purchased, free and clear of all liens, encumbrances, objections, defects,
exceptions, irregularities, encroachments and other survey defects, and
possessory interests
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in favor of third parties, except those that can be and are discharged by the
Seller at or before closing, and the following, herein collectively called the
"Acceptable Encumbrances":
(1) Real property taxes and special assessments for the year
in which the sale and purchase is closed.
(2) Applicable zoning and other regulatory laws and
ordinances.
(3) The title exceptions, if any, set forth in Exhibit"I"
attached hereto.
b. Initial Title Evidence. Within 60 days from the date of this
Agreement, the Buyer shall obtain a title insurance commitment (the "Title
Binder"). The Title Binder shall be issued by Chicago Title Insurance Company or
another title insurer reasonably acceptable to the Seller (the "Title Company"),
who shall agree to issue to the Buyer or Buyer's designee, upon recording of a
deed or deeds from the Seller as provided below, an ALTA (Form B) owner's policy
of title insurance, insuring the fee simple title of the Buyer to the Property,
subject only to the Acceptable Encumbrances. The cost of the Title Binder and
the title insurance policies issued pursuant thereto shall be borne by the
Buyer. The Seller agrees to promptly furnish the Buyer with any existing title
insurance policies and surveys of the Property. Within 120 days from the date of
this Agreement, the Buyer shall, at its expense, obtain a current survey plat
prepared by a registered Florida Land Surveyor (the "Survey"). Within 15 days
after receipt of the Title Binder and the Survey, the Buyer shall furnish copies
thereof to the Seller and shall notify the Seller of any objections to title. If
the Buyer fails to notify the Seller in writing that title to the Property is
not acceptable within the foregoing 15-day period, the title shall be deemed to
have been approved by the Buyer and the Buyer agrees that the Seller may make
exception for any matters disclosed by the Title Binder and Survey in the deeds
to be delivered to the Buyer at the several closings hereunder.
17
c. Title Curative Matters. If the Seller's or Owners' (as hereinafter
defined) title to the Property is not shown by the Title Binder and the Survey
to be good and marketable as specified above, the Seller (provided that written
notice is given within the foregoing 15-day period) shall take prompt and
effective measures to make the title good and marketable without exception other
than the Acceptable Encumbrances, and shall have a period of 120 days after
receipt of notice thereof to do so. If the Seller fails after diligent effort to
make the title good and marketable or to remove or discharge any liens,
encumbrances, defects, or objections, other than the Acceptable Encumbrances,
within such period, the Buyer may, at his option: (i) terminate this Agreement;
(ii) accept a conveyance of title to the Property in its existing condition; or
(iii) elect to undertake title curative measures itself, in which event the
Seller shall pay for all costs reasonably incurred by Buyer up to a maximum of
$50,000.
▇. ▇▇▇▇▇ Heights Road and Bridge District. A portion of the Property,
containing 200 acres more or less (the "Taxing District Parcel"), lies within a
special taxing district known as the Pasco Heights Road and Bridge District (the
"District"). The Seller acknowledges that the foregoing constitutes an
unacceptable title defect and agrees, at Seller's expense, to forthwith
undertake all necessary title corrective measures, including (without
limitation) paying in full all special assessments levied by the District on the
Taxing District Parcel and causing the boundaries of the District to be
contracted so that no portion of the Taxing District Parcel lies within the
boundaries or jurisdiction of the District, provided that the Seller shall not
be obligated to spend more than $100,000 with respect to this title defect. If
the foregoing cannot be accomplished within one year from the date of this
Agreement, then the Buyer shall have the options set forth in the preceding
subparagraph and the additional option of excluding the Taxing District Parcel
18
from this Agreement, in which case: (a) the Buyer's obligations hereunder shall
be decreased by the number of building lots lost as shown on the Master Plan,
and (b) the Seller shall, at its expense, cause such excluded land to be
developed in accordance with the Master Plan and the Phasing Schedule attached
hereto as Exhibit "E", and the Seller and its successors and assigns shall be
prohibited from using the excluded land for any purpose other than residential
development.
e. Federal Land Bank Mortgage. The Property is presently encumbered
with a first mortgage in favor of the Federal Land Bank which secures a note
with an outstanding principal balance of approximately $500,000 (the
"Mortgage"). Within 120 days of the date of this Agreement, the Seller shall
either: (a) satisfy and discharge the Mortgage of record, or (b) provide
assurances satisfactory to the Buyer, in its sole discretion, that the lien of
the Mortgage will not encumber any land to be developed by the Buyer which lies
to the south of proposed County Road 56. If the mortgage is so modified, the
Seller shall cause the Mortgage to be timely satisfied and discharged of record
when the Buyer provides written notice to the Seller that the Buyer will be
commencing development of that portion of the Property lying north of proposed
County Road 56 pursuant to the Phasing Schedule.
f. Title Updates. At each of the several closings hereunder, the Title
Binder shall be updated and endorsed to a current date and title insurance
policies shall be issued to the Buyer or the Buyer's designee in the amount of
the purchase price for that portion of the Property being purchased at such
closing.
g. Additional Title Covenants. During the term of this Agreement, the
Seller agrees that it will not cause any liens or encumbrances to attach to the
Property or file of record any instrument that would or might affect title to
the Property except as requested by the Buyer in connection with
19
the development of the Property pursuant to the Agreement. Any breach of this
covenant shall constitute a default by the Seller hereunder. Without the
Seller's prior consent, the Buyer likewise agrees that it will not cause any
liens or encumbrances to attach to the Property or file of record any
instruments that would or might affect title to the Property except as
contemplated in this Agreement.
15. Inspections and Possession. During the term of this
Agreement, the Seller agrees that the Buyer and its representatives and agents
may enter upon the Property for the purposes of performing tests as to the
suitability of the surface and subsurface of the Property, adequacy of the
drainage, and other tests the Buyer deems necessary for a thorough examination
of the Property. The Buyer and its representatives and agents (including the
CDDs) shall also have the right to enter upon the Property to construct and
maintain the Infrastructure, and to market the Property to home builders,
brokers, and other third parties. Within ten business days following the date of
this Agreement, the Seller shall make available or deliver copies of all
reports, tests, surveys, and other documents in the possession of Seller or
Seller's agents or consultants which pertain to the Property. During the 90 day
period following the date of this Agreement (the "Preliminary Inspection
Period"), the Buyer anticipates making preliminary tests and investigations,
including (without limitation) obtaining a Phase 1 Environmental Assessment
Report, to determine the feasibility of developing the Property as contemplated
in this Agreement. If the Buyer concludes, in Buyer's sole and absolute
discretion, that the Property is unsuitable for Buyer's proposed development,
the Buyer shall so notify the Seller before the end of the Preliminary
Inspection Period whereupon this Agreement shall terminate and the parties shall
have no further rights or obligations hereunder. Following the Preliminary
Inspection Period, the Buyer anticipates making significant additional
20
expenditures in connection with its development of the Property pursuant to
this Agreement. Accordingly, the parties anticipate that the Buyer will conduct
as much of its due diligence inspections as possible during the Preliminary
Inspection Period. However, nothing herein should be construed to in any way
limit or impair: (a) the Buyer's continuing right to conduct inspections and
investigations of the Property throughout the term of this Agreement; or (b) the
Buyer's continuing right to terminate or cause the termination of this Agreement
by, among other things, failing to purchase the requisite number of building
lots required to satisfy the Minimum Sales Schedule attached hereto as
Exhibit "H". The Buyer agrees to indemnify and hold harmless the Seller from any
and all claims which may result from the exercise by the Buyer of its
inspection rights under this paragraph. All engineering studies, plans,
permits, or other information obtained by the Buyer shall become the property of
Seller at no cost to Seller upon the termination of this Agreement, provided
the Seller is not in default hereunder.
16. Expenses. The Seller shall pay for all corrective
title work which is required.
The Buyer shall pay for documentary stamps on the deeds, title insurance and
recording the deeds.
17. Conveyances. Title to the Property being conveyed at
the several closings hereunder shall be conveyed to Buyer or Buyer's designee by
Special Warranty Deed free and clear of all liens or encumbrances except for the
Acceptable Encumbrances.
18. Condemnation. If, while this Agreement is in full force
and effect, any action or proceeding is filed or threatened, under which any
portion of the Property owned by the Seller may be taken pursuant to any law,
ordinance, or regulation, or by condemnation or the right of eminent domain
(collectively, a "Taking"), then the following provisions shall apply. In the
event that Seller receives a written notice to the effect that a Taking is
pending or threatened, Seller shall
21
notify Buyer immediately following receipt of such notice. The award or awards
for such Taking in connection with any proceedings or settlement negotiations
for the determination of the amount thereof ("Condemnation Proceeds") shall be
paid to the Seller and the Buyer as follows: (a) first, the Seller shall be
entitled to receive such portion of the Condemnation Proceeds, with interest
thereon if and to the extent payable by the condemning authority, equal to the
fair market value of the Property so taken, plus severance damages, if any, to
the portion of the Property not so taken, and (b) second, the Buyer shall be
entitled to receive such portion of the Condemnation Proceeds, with interest
thereon if and to the extent payable by the condemning authority, equal to the
fair market value of its rights pursuant to this Agreement in the Property so
taken, plus severance damages, if any, to the portion of the Property not so
taken. In addition, the Buyer's obligations hereunder shall be decreased by the
amount of building lots lost by any Taking as shown on the Master Plan. In the
event of any disagreement between Seller and the Buyer as to that portion of the
Condemnation Proceeds to which each is entitled, the determination of respective
values is set forth above shall be made pursuant to arbitration or litigation as
provided elsewhere herein.
19. Seller's Representations and Warranties. Seller
hereby represents and warrants to Buyer all of the following, which
representations and warranties are true and correct as of the date of this
Agreement and shall survive the several closings hereunder:
a. Ownership of the Property. The Seller has entered into a valid and
enforceable agreements to purchase the Property from ▇▇▇▇▇▇ Chapel Lakes, Ltd. a
Florida limited partnership and Pasco Heights Development Corporation, a
Florida corporation (collectively, the "Owners"), copies of which are attached
hereto as composite Exhibit "J" (the "Underlying Purchase Agreement"). The
Seller and each of the Owners have the requisite power and authority to perform
22
their respective obligations under the Underlying Purchase Agreement. If Seller
is obligated to perform an obligation under this Agreement with respect to a
portion of the Property not owned by Seller, the Seller shall be deemed to have
performed its obligation if the obligation is performed by Owner. The Seller
agrees that it shall timely perform its obligations under the Underlying
Purchase Agreement so that Seller is able to deliver marketable title to
building lots and fully perform all of its other obligations hereunder.
b. Litigation. The Property is not the subject of any present
litigation and the Seller is unaware of any pending or threatened litigation
relating to the Property.
c. Condemnation Proceedings. Seller has no knowledge of any
threatened or pending eminent domain or condemnation action proceeding affecting
the Property, except the Seller is aware that a natural gas transmission line
may be built across the Property by a public or private utility company.
d. Taxes. Seller has paid or will cause to be paid all ad valorem
taxes and assessments which are due in connection with the Property.
e. No Violations. Seller has received no notice of any violation of
any applicable laws, ordinances, regulations, statutes, rules, or restrictions
pertaining to and affecting the Property, except that the Seller has not met
certain conditions imposed by the ▇▇▇▇▇▇ Chapel Lakes DRI.
f. Not a Foreign Person. Seller is not a "foreign person" under
section 1445 of the Internal Revenue Code of 1986, as amended, and agrees to
satisfy the requirements of said statute by executing an affidavit at each of
the several closings hereunder.
g. No Bankruptcy. Seller is solvent and is not the subject of any
pending or threatened bankruptcy, insolvency, or receivership proceedings.
23
h. Leases. The Leases attached hereto as composite Exhibit "G" are in
full force and effect and the tenants are not in default thereunder.
i. Environmental Matters. To the best of Seller's knowledge and belief,
after reasonable investigation, the Property does not contain, and there is not
located on or about the Property nor has there been any discharge, uncontrolled
loss, seepage or filtration of oil, petroleum or chemical liquids or solids,
liquid or gaseous products, asbestos or asbestos-related products or any
hazardous waste or hazardous substance, as hereinafter defined, on or about the
Property. To the best of Seller's knowledge and belief, after reasonable
investigation, the Property has not been used as a burial ground or for
industrial or manufacturing purposes; landfill, dumping or other waste disposal
activities or operations; storage of raw materials, products or waste disposal
activities or operations; storage of raw materials, products or waste disposal
activities or operations; storage of raw materials, products or waste of a toxic
or hazardous nature; for underground storage tanks or pipelines used for
petroleum, petroleum products, or chemicals; or for any other use which might
give rise to the existence on the Property of toxic materials, hazardous
substances or hazardous waste as those terms are used in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. ss.
9601 et seq., as amended, Superfund Amendments and Reauthorizations Act of 1986,
Resource Conservation and Recovery Act of 1976 or in any other federal, state or
local law (and all regulations promulgated under any of the same) as such laws
are amended from time to time, nor has the Property been treated with
pesticides, herbicides or other toxic chemicals, except those customarily used
in cattle and agricultural operations in central Florida. In addition, the
Seller has no actual knowledge of any contamination from such cattle and
agricultural operations. As used herein "reasonable investigation" by the Seller
means the Seller has reviewed all files and records
24
of the Seller and the Owner and has conducted a physical inspection of the
Property. Seller has no knowledge of the presence of radon gas. Notwithstanding
anything to the contrary herein contained and in addition to any other remedies
herein provided, this representation and warranty shall survive each of the
several closings hereunder. Seller shall and does hereby indemnify Buyer from
and against all claims, actions, causes of action, liability and expense
(including reasonable attorneys' fees and charges or claims by any governmental
agency) pertaining to environmental contamination if the foregoing
representations and warranties by the Seller as to environmental matters are
untrue.
20. Environmental Remediation. Seller agrees that it shall be
solely responsible for the costs of environmental "clean up" or remediation of
contamination (as defined in the preceding sub-paragraph) with respect to the
Property. Unless the Seller's representations and warranties in the preceding
sub-paragraph are untrue, the parties agree, however, that the Seller shall not
be obligated to spend more than $100,000 in connection with the "clean up" or
remediation of the Property. If the cost thereof exceeds $100,000, then the
Buyer may, at its option, either: (a) terminate this Agreement, or (b) exclude
the contaminated portion(s) of the Property (including reasonable buffer areas
and access corridors to facilitate future remediation) from this Agreement, in
which event the Buyer's obligations hereunder shall be decreased by the amount
of the excluded building lots as shown on the Master Plan.
21. Site Balancing. The parties acknowledge that the Initial
Master Plan for the development of the Property appears to be "balanced". As
used herein, "balanced" means that the fill dirt expected to be obtained from
the lakes and ponds as generally depicted on the Initial Master Plan appears to
be sufficient to provide fill dirt for building lots and road rights-of-way
without any need to import fill dirt from an off-site source. The Buyer may need
to reconfigure the lakes and
25
pond boundaries as shown on the Initial Master Plan during the course of
development. Without the Seller's prior consent, however, the Buyer agrees that
it shall not expand the overall lake and pond areas as generally depicted on
Initial Master Plan in order to generate additional fill dirt if such expansion
would materially decrease the overall number of building lots that can be
constructed on the Property. The Seller acknowledges that site balancing and
other factors may result in fluctuations in the number of building lots actually
constructed in a particular unit, phase or plat of the development. As used
herein, a "material decrease" means a net decrease of more than 30 building lots
as shown on the overall Master Plan for the development of the Property.
22. Potable Water ▇▇▇▇▇. The Property lies within a proposed
water supply corridor identified in the West Coast Regional Water Supply
Authority Master Plan through the year 2020. If a governmental agency with
jurisdiction over water seeks to acquire land for a regional well site, the
parties will endeavor to ensure that the location of the well site or sites is
consistent with the Master Plan, and will not interfere with Buyer's proposed
development of the Property. The parties will use their best efforts to ensure
that each such well site does not exceed two acres. Any compensation paid with
respect to the acquisition of a well site shall be paid to the Seller. The Buyer
agrees that it shall not seek to sell a well site on the Property to any person,
including a governmental agency having jurisdiction with respect to potable
water. If not already prohibited by applicable zoning regulations, upon request
by Seller, the parties agree that commercially reasonable deed restrictions
shall be placed on building lots to prohibit sales to third parties of potable
well sites on such building lots, provided, however, that nothing herein shall
be construed to prevent the Buyer, the CDDs or the owners of building lots from
installing ▇▇▇▇▇ for lawn and landscape irrigation, lake augmentation, and other
26
such uses typical in residential developments. The Seller's exclusive right to
sell land to a governmental agency for use as a well site does not constitute a
legal interest in any portion of the Property (except the land comprising the
actual well site). In no event shall the Seller's rights pursuant to this
paragraph be referenced in any instrument recorded in the public records of
Pasco County. Upon request by the Buyer, Seller shall execute a disclaimer or
release, in recordable form, relinquishing any claim or right relative to water
rights with respect to any portion of the Property that has been sold to the
Buyer or the Buyer's designee.
23. Termination by Seller. Upon the occurrence of an Event of
Termination, as defined below, this Agreement shall immediately terminate and
shall thereafter be null and void and of no further force or effect, except for:
(a) the provisions of this Section which shall survive termination, and (b) the
post-termination obligations of Buyer set forth in Section 7 above. Except as
specifically provided in this section, Seller hereby expressly waives all rights
to seek damages from Buyer if an Event of Termination occurs. Seller
acknowledges that the consideration received from the Buyer in return for
Seller's waiver of its rights to seek damages from the Buyer includes, but is
not limited to, the Buyer's construction of improvements on and to the Property,
Buyer's efforts to modify the DRI, and Buyer's efforts in establishing the CDDs.
An "Event of Termination" is defined as follows: (a) Buyer's failure to
maintain an irrevocable letter of credit or other security acceptable to Seller
securing Buyer's guarantee of the Liens as required pursuant to this Agreement;
(b) Buyer's failure, after 30 days' written demand from the Seller to do so, to
pay all ad valorem taxes and special assessments levied or assessed against the
Property; (c) Buyer's failure to purchase the requisite number of building lots
to satisfy the Minimum Sales Schedule during the year 2001 and any subsequent
year thereafter or during any calendar quarter of the year 2001 and any
subsequent year, subject to the Buyer's rights pursuant to
27
Section 13(b) above to make early purchases of building lots; or (d) Buyer's
material breach of any of Buyer's covenants in this Agreement.
Upon the termination of the Agreement by the Seller pursuant to this
section, the Buyer shall promptly: (a) assign (without recourse) to Seller all
of Buyer's right, title and interest in and to all engineering studies,
construction plans, permits, and other entitlements and other information
pertaining to the Property and the development thereof, and shall furnish copies
of all documents so assigned that are in the Buyer's possession (b) cause the
representatives of the Buyer serving on the Boards of Supervisors of the CDDs to
tender their resignations so that replacement supervisors may be elected, (c)
execute and deliver a quitclaim or release, in recordable form and otherwise
reasonably acceptable to the Seller, disclaiming and releasing the Buyer's
rights with respect to the Property and the Excluded Property pursuant to this
Agreement, and (d) cooperate as reasonably necessary with the Seller or the
Seller's designee to facilitate the orderly transition of development
responsibilities from the Buyer to the Seller or the Seller's designee. If a
termination of this Agreement occurs within five years of the date hereof, the
Buyer shall not be entitled to any revenues derived from the activities
described in Section 8 hereof following such termination. Following the
termination of this Agreement, the Seller may use the name or names selected by
the Buyer (as provided below) to market the development on the Property. If the
Buyer fails to perform the foregoing obligations following an Event of
Termination with reasonable promptness under the circumstances, then the Seller
may seek specific performance of the Buyer's obligations hereunder and the Buyer
shall be liable for any delay damages incurred by Seller, provided Seller makes
written demand to the Buyer for performance of the Buyer's obligations hereunder
within six months from the occurrence of the Event of Termination. After such
six month period, the Seller may seek
28
specific performance of the Buyer's obligations hereunder but shall not have any
right to recover delay damages from the Buyer.
24. Default by Seller. In the event the Seller defaults
under any provision of this Agreement, the Buyer has the right to either:
(a) seek specific performance of this Agreement or (b) pursue any and all rights
and remedies available to Buyer under Florida law.
25. Non-Monetary Default; Notice and Opportunity to Cure. With
respect to any non-monetary default, the parties shall each have a grace period,
after notice of the non-monetary default has been given to the defaulting party,
to cure the non-monetary default, provided the defaulting party forthwith upon
notice of default commences and proceeds with due diligence and good faith to
cure the default as expeditiously as possible. In no event shall such curative
period for a non-monetary default extend beyond 60 days after notice of the
non-monetary default has been given to the defaulting party.
26. Affidavit. At the several closings hereunder, the Seller
shall furnish the Buyer with a Seller's affidavit stating either that there have
been no improvements made to the Property by the Seller during the 90 days
immediately preceding the date of closing or, if there have been any such
improvements, that all lienors in connection with said improvements have been
paid in full; that, subject to the rights granted pursuant to this Agreement,
Seller has sole possession of the Property subject only to the possessory rights
of the Buyer, the CDDs, the tenants under the Leases, or others as expressly
contemplated herein; and that there are no unrecorded easements or contracts for
sale relating to the Property created or permitted by Seller.
27. Notices. Any notices required or permitted under
this Agreement shall be deemed delivered when hand delivered or mailed, postage
29
prepaid by express mail or certified mail return receipt requested, addressed to
the respective parties at the respective addresses set forth below:
SELLER: Clearwater Bay Associates, Inc.
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WITH A COPY TO:
Johnson, Blakely, Pope, Bokor,
▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BUYER: Meadow Pointe General Partnership
c/o Devco III, LLC
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
WITH COPIES TO:
Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
Meadow Pointe East, L.L.C.
c/o BF Enterprises, Inc.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇
& ▇▇▇▇▇▇▇, P.A.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
28. No Other Agreements. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between the parties, including (without
limitation) the letter of intent dated May 12, 1999. No agreements, unless
incorporated in this Agreement, shall be binding upon any of the parties.
29. Time of the Essence. Time is of the essence with
regard to this Agreement.
30. Successors and Assigns. The covenants herein
contained shall bind, and the benefits and advantages shall inure to, the
respective successors and assigns of the parties hereto.
31. 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 Agreement 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
Agreement and any related instruments are the product of extensive negotiations
between the parties hereto and that both parties hereto have contributed
substantially and materially to the final preparation of this Agreement and
all related instruments.
32. Headings. Caption headings herein are for ease of
reference only and are not part of this Agreement.
31
33. Survival. This Agreement shall not be merged into
the documents executed at the several closings hereunder, but shall survive the
several closings hereunder and the provisions hereof shall remain in full force
and effect.
34. Attorney's Fees and Costs. In the event of any litigation
or arbitration proceeding arising out of this Agreement, the prevailing party
shall be entitled to recover all costs incurred including reasonable attorney's
fees for services rendered in connection with such litigation or arbitration
proceeding, including appellate proceedings and cost judgment proceedings.
35. Arbitration. Notwithstanding anything to the contrary in
this Agreement, all claims for monetary damages and disputes relating in any way
to the performance, interpretation, validity, or breach of this Agreement shall
be referred to final and binding arbitration, before a single arbitrator, under
the commercial arbitration rules of the American Arbitration Association in
Pasco County, Florida. The arbitrator shall be selected by the parties and if
the parties are unable to reach agreement on selection of the arbitrator within
30 days after the notice of arbitration is served, then the arbitrator will be
selected by the American Arbitration Association. All documents, materials, and
information in the possession of a party to this Agreement and in any way
relevant to the claims or disputes shall be made available to the other parties
for review and copying not later than sixty (60) days after the notice of
arbitration is served. To the extent that a party would be required to make
confidential information available to any other, an agreement or an order shall
be entered in the proceeding protecting the confidentiality of and limiting
access to such information before a party is required to produce such
information. Information produced by a party shall be used exclusively in the
arbitration or litigation that may arise, and shall not otherwise be disclosed.
The arbitrator shall NOT have subject matter jurisdiction to decide any issues
relating to the statute of limitations or to any request for injunctive relief,
32
and the parties hereby stipulate to stay the arbitration proceeding (without
the need of a bond) until any such issues in dispute are resolved. Judgment
upon the award rendered by the arbitrator shall be final, binding and conclusive
upon the parties and their respective administrators, executors, legal
representatives, heirs, successors and permitted assigns, and may be entered in
any court of competent jurisdiction.
36. Waiver. No waiver hereunder of any condition or
breach shall be deemed to be a continuing waiver of any subsequent breach.
37. Choice of Law; Venue. This Agreement shall be
governed by the laws of Florida. Venue for any judicial action arising
hereunder shall lie in Pasco County.
38. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument; and any party or signatory hereto may execute this Agreement by
signing any such counterpart.
39. Assignment. This Agreement may not be assigned by Buyer
without the Seller's prior written approval, which shall not be unreasonably
withheld or delayed, as long as the development of the Property by the assignee
is managed and supervised either by ▇▇▇▇▇▇ ▇. ▇▇▇▇ or by another experienced and
competent residential real estate developer reasonably acceptable to the Seller.
40. Real Estate Commissions. The Seller shall pay any and all
commission due to Colliers ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate (collectively,
the "Brokers") in connection with the transactions contemplated by this
Agreement. Except for the Brokers, the parties represent to each other that
there are no real estate brokerage, finder, or other commissions or fees due or
to become due as a result of any actions taken by either party with respect to
the transactions contemplated by this Agreement. Each party hereby agrees to
indemnify, defend, and save the other party harmless from any and all loss,
33
costs, damages, expenses, or attorneys' fees that either party may suffer or
incur as a result of any acts or omissions to act of the other party regarding
any real estate commission or claim thereto. ▇▇▇ ▇▇▇▇▇▇ is a licensed real
estate broker and has an interest in the Property. Colliers ▇▇▇▇▇▇ is the agent
of the Seller. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate does not represent either party but
the Seller is responsible for paying any compensation due to such
firm.
41. Radon Gas. Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
42. Recordation. The Seller and the Buyer shall execute a
memorandum of this Agreement, in the form attached hereto as Exhibit "K", which
shall be recorded in the Public Records of Pasco County, Florida to give
constructive notice to third parties of Buyer's rights hereunder. Prior thereto,
the Seller shall execute and shall cause the Owner to execute a memorandum of
the Underlying Purchase Agreement, in the form attached hereto as Exhibit "L",
which shall also recorded in the Public Records of Pasco County, Florida before
the memorandum of this Agreement.
43. Notices pertaining to the Property. The Seller agrees to
promptly furnish to the Buyer copies of all notices concerning the Property that
the Seller receives, including (without limitation) all notices from
governmental agencies.
44. Term of this Agreement. Unless sooner terminated pursuant
to the terms of this Agreement, this Agreement shall terminate upon the sale of
all building lots shown on the Master Plan and the sale of CR 56 Property or on
December 31, 2017, whichever occurs first.
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45. Confidentiality. To the extent practical and feasible
under the circumstances, the parties agree: (a) to keep the terms and conditions
hereof in strict confidence; and (b) to cause their respective advisors and
consultants to similarly maintain strict confidentiality as to the terms and
conditions hereof. Nothing contained herein shall be construed to preclude the
parties and their respective advisors and consultants from making such
disclosures to governmental agencies and others as reasonably required to
perform the parties' respective obligations hereunder or as required under
federal and state securities laws and regulations. In no event shall Seller make
any public news release or statement concerning this Agreement without the
Buyer's prior written consent, which consent shall be given (or withheld) in
Buyer's sole and absolute discretion. If and when the Buyer determines that a
public announcement concerning the transactions contemplated by this Agreement
is appropriate, the parties shall jointly prepare an appropriate news release or
statement.
46. Name of Development. The Buyer shall have the right to select
the name or names to be used to market the development to be constructed on the
Property.
47. Condition Precedent. The Buyer's obligations hereunder are
contingent upon the Owners' execution of the joinder agreement which is appended
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates set forth below. The last date of execution by Buyer or Seller
shall be deemed to be the date of this Agreement for all purposes.
Signed, sealed and delivered in
the presence of: "SELLER"
CLEARWATER BAY ASSOCIATES, INC.
/s/ ▇▇▇▇▇ St. ▇▇▇▇▇ ▇▇▇▇
--------------------------- By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------
Print or type your name here: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President
▇▇▇▇▇ St. ▇▇▇▇▇ ▇▇▇▇
Date: 10/4/99
-------------
/s/ ▇▇▇▇ ▇. Friend
-----------------------------
Print or type your name here
▇▇▇▇ ▇. Friend
"BUYER "
MEADOW POINTE GENERAL
PARTNERSHIP
By: Devco III, LLC, as its
managing general partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------- -------------------
Print or type your name here: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇▇▇▇▇ ▇▇▇▇▇
Date: 10/5/99
-----------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Print or type your name here:
▇▇▇▇▇ ▇. ▇▇▇▇▇
36
JOINDER BY ▇▇▇▇▇▇ CHAPEL LAKES, LTD. AND PASCO HEIGHTS
DEVELOPMENT CORPORATION (collectively the "OWNERS")
RECITALS
A. Owners, or their related party predecessors in interest, have
owned the Property described in the foregoing Agreement for
many years.
B. Efforts by Owners to develop the Property over the years have
been unsuccessful.
C. The Property has limited access to a desirable entry for
marketing purposes. The best entry access for the foreseeable
future is through Buyer's adjacent project.
D. The Owners are currently not in compliance with the DRI
Development Order governing development of the Property.
E. Seller is willing to oversee development of the Property in a
transaction which will enable finished lots to be developed
for purchase by Buyer.
F. Buyer, as the developer of the project adjacent to the
Property is the party best positioned to purchase lots and
build homes within the Property.
G. Buyer will not enter into the foregoing Agreement for the
purchase of lots without the execution by Owners of this
Joinder.
Now therefore, to induce the Buyer to enter into the transactions
contemplated in the foregoing Agreement and in consideration of $10 and other
good and valuable consideration, receipt of which is hereby acknowledged, the
Owners join in the Agreement and represent, warrant and agree as follows:
1. Purchase Agreement. Each of the Owners has entered into a
valid and enforceable purchase agreement with the Seller, copies of which are
attached hereto as composite Exhibit "J" (the "Underlying Purchase Agreement").
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2. Performance of Obligations. The Owners shall perform all of
their respective obligations under the Underlying Purchase Agreement.
3. Cooperation and Consent. Upon request by the Buyer, the Owners
shall cooperate and promptly perform all obligations of the Seller hereunder
which necessarily require action by the fee simple owner of the Property or any
part thereof, including, without limitation, the execution of deeds, joining in
subdivision plats and consenting to the creation of the CDDs.
4. Owners' Guarantee. The Owners, jointly and severally,
unconditionally guarantee to Buyer the performance of the Seller's obligations
under their respective Underlying Purchase Agreement and the performance of the
Seller's obligations under the Agreement with the Buyer.
5. Third Party Beneficiary. The Owners acknowledge and agree that
the Buyer is a third party beneficiary of the Underlying Purchase Agreement, and
is entitled to all rights of a third party beneficiary with respect thereto.
6. Remedies. The Buyer shall have the same rights and remedies
as to the Owners as it has with respect to the Seller to enforce the Agreement,
including (without limitation) the provisions of this Joinder.
▇▇▇▇▇▇ CHAPEL LAKES, LTD.
By: ▇▇▇▇▇▇ Chapel Lakes, Inc., as its sole
general partner
/s/ ▇▇▇▇▇ St. ▇▇▇▇▇ ▇▇▇▇
-------------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Print or type your name here: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇▇ St. ▇▇▇▇▇ ▇▇▇▇
Date: October 4, 1999
------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Print or type your name here:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
38
▇▇▇ ▇▇▇▇▇▇ DEVELOPMENT
CORPORATION
/s/ ▇▇▇▇▇ St. ▇▇▇▇▇ ▇▇▇▇
------------------------ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------
Print or type your name here: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., President
▇▇▇▇▇ St. ▇▇▇▇▇ ▇▇▇▇
Date: 10-4-99
-------------
/s/ ▇▇▇▇ ▇. Friend
-------------------------
Print or type your name here
▇▇▇▇ ▇. Friend
39