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05-15-2001 Regular MeetingDowntown Development Authority Minutes May 15, 2001 7 p.m. Attendees: Mayor Max Bacon Eric Cash Hubert Black Doug Stoner C.J. Fouts Melinda Dameron Jim Pitts Pete Wood Howard Smith Scott Cochran Guest: G.K. Johnson 1. Discussion of Purchase Contract with GKJ Development, LLC Mayor Bacon called the meeting to order and asked Pete Wood to go over the purchase agreement. Mayor Bacon introduced G.K. Johnson and Scott Cochran, the City Attorney. Mayor Bacon indicated that the City Council had voted to authorize this agreement at its last meeting. Mr. Wood then proceeded to provide a brief overview of the purchase agreement. Mayor Bacon then asked Mr. Johnson to review of his "Village Market" proposal with the Downtown Development Authority Members. Mr. Johnson reviewed his mixed -use plan of retail, office, and residential. Mayor Bacon indicated that this evolved from a retreat held earlier this year and a concept developed by Mike Sizemore. Mayor Bacon thanked Howard Smith and Pete Wood for their work on this project. There was a brief question and answer session. Doug Stoner made a motion and it was seconded by Melinda Dameron to authorize the Chairman to approve the purchase agreement with GKJ Development, LLC. The motion was passed unanimously. AGREEMENT FOR THE PURCHASE AND SALE OF LAND THIS AGREEMENT is made as of the Effective Date (as defined in the last Section of this Agreement) by and between the undersigned parties. BACKGROUND STATEMENT Seller is or shall be the owner of the Property (as defined in Section 1 of this Agreement. Seller desires to sell the Property to Purchaser and Purchaser desires to purchase the Property from Seller upon the terms and conditions set forth below. STATEMENT OF AGREEMENT For and in consideration of the Earnest Money (as herein defined) paid by Purchaser as herein provided, the mutual covenants and benefits contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser, intending to be legally bound, hereby agree as follows: 1. PROPERTY. The property depicted in Exhibit "Al', as the "Initial Parcels" and the "Option Parcels" together with all fixtures located thereon and together with all rights, members and appurtenances thereto including, without limitation, those rights W described herein is herein referred to as the "Property." Seller hereby agrees to sell the Property to Purchaser and, subject to Section 3.3 hereof, Purchaser hereby agrees to purchase the Property from Seller upon the terms and conditions hereinafter set forth. 2. EARNEST MONEY. Purchaser shall pay to Escrow Agent the sum of Five Thousand 00/100 ($5,000.00) Dollars by check as earnest money, payable within five (5) days after the Effective Date of this Agreement. Such sum, together with interest earned thereon, if any, is hereinafter referred to as the "Earnest Money". The Earnest Money shall be retained or distributed, as the case may be, in accordance with the terms of this Agreement. The Escrow Agent shall invest such sum in an interest -bearing account. In the event Purchaser does not default in the timely performance of its obligations hereunder, the Earnest Money shall be applied as a credit against the Purchase Price (as hereinafter defined). Purchaser and Seller agree to sign all forms required in connection with Escrow Agent's holding and investing the Earnest Money, such as IRS and bank account forms and reports, and for such purposes the Earnest Money shall be considered the property of Purchaser until such time as Escrow Agent disburses the Earnest Money to another party. If the Earnest Money is paid to Seller pursuant to Section 12 hereof, all such interest shall be reported for tax purposes as having accrued to the benefit of Seller. The preceding sentence shall not change in any way the other provisions in this Agreement concerning Escrow Agent's holding and disbursing the Earnest Money. 13514880 3. PURCHASE PRICE, CLOSING, AND TERMS OF PAYMENT. 3.1 The purchase price of the Initial Parcels shall be Four Hundred Thousand and No/100 Dollars ($400,000.00) payable in good funds at Closing ("Purchase Price"). 3.2 The closing of the transaction contemplated by this Agreement with _ respect _ the _. Jnitial Parcels ("Closing") shall be held at 10:00 a.m. at- /;a1c erow,► * , or at such other time and place as Purchaser nd Seller may agree. The parties hereto further agree that Purchaser shall have the right to extend the Closing for up to two (2) terms of thirty (30) days each, after notice from Purchaser to Seller, if Purchaser is not prepared to consummate the Closing, whether on account of Purchaser's having not received all required permits or otherwise 3.3 Purchaser shall also have an option to purchase one or both of the Option Parcels. The Purchase Price for each Option Parcel shall be One Hundred Thousand and No/100 Dollars ($100,000.00). In the event Purchaser desires to purchase either of the Option Parcels at Closing, it shall give notice to Seller at least five (5) days prior to Closing; otherwise, Purchaser shall give at least thirty (30) days prior written notice of its exercise of such option with respect to either (or both) Option Parcel(s). In such event, this Agreement shall govern such purchase and the purchase and sale of the applicable Option Parcel(s) shall be consummated at the office of Purchaser's counsel on the date and at the time set forth in such exercise notice and the provisions of this Agreement relating to a Closing shall also be applicable in such closing. The option under this Section 3.3 shall expire on the fifth (5th) anniversary of the date of Closing. 3.4 Purchaser shall not be obligated to close the following requirements are met (or waived by Purchaser): (a) The parcels (the "Parcels") comprising the Property have been staked out accurately with iron pins and has been clearly marked at all corners; (b) the final subdivision plat showing the Parcels has been approved by all applicable governmental entities and has been recorded (or is being recorded with the deed effecting the conveyance hereunder); (c) all public roads sufficient to provide access to the Parcels: (i) include concrete curb, gutter and asphalt and (ii) have been completed in accordance with the standards of applicable governmental entities; (d) the Parcels have been graded from the curb and all shoulder areas on the right of way have been stabilized and seeded; -2- 13514880 (e) there is surface water drainage for all roads providing access to the Parcels and for the Parcels, all in substantial accordance with the Site Plan and the Plans and Specs (referenced in Section 1 of the Special Stipulations); (f) underground telephone, electrical and gas lines have been installed in substantial accordance with the Site Plan and will be available to. -Purchaser or. its-assign(s) solely upon -the payment of tap -on fees and user charges imposed by the utility companies or governmental agencies supplying such services; (g) water and sewer laterals are installed in substantial accordance with the Site Plan and ready to be immediately used for their intended purpose and are available to Purchaser or its assign(s) solely upon the payment of tap -on fees and user charges imposed by the entities supplying such services; (h) all utilities have been marked as to location; (i) there are no stump holes partially or wholly under any building site and all fill areas shall be compacted in accordance with industry standards as per standard Proctor test; 0) the soil will be satisfactory for Purchaser to construct commercial buildings and single family residential homes on the Parcels and that no footing shall have to exceed three (3) feet in depth; (k) subject to any governmental agency moratoriums, a building permit can be issued immediately for each Parcel ; and (1) Seller shall have removed all stored fill dirt from the Lot. 4. COSTS AND PRORATIONS. 4.1 At Closing (whether the cloing of the Initial Parcels or an Option Parcel), Seller shall pay all real estate transfer taxes, costs of recording corrective instruments, if any, and any broker's commission. Purchaser shall pay all other recording fees, intangible taxes, costs of obtaining title insurance (commitments and policies) and surveys and all other Closing costs incurred by Purchaser. Seller shall be responsible for all other Closing costs incurred by Seller. Each party shall be responsible for its respective attorney's fees. 4.2 Ad valorem property taxes and all other unpaid assessments shall be prorated as of the day of the applicable Closing. If the current year's taxes and/or other applicable assessments with respect to the Parcel being acquired have not. been determined at the time of Closing, proration shall be based upon the previous 13514880 -3- year's taxes and/or assessments, and Purchaser and Seller shall adjust between themselves any difference in the proration after the actual amount for the year of Closing has been determined. All prorations shall be made on a calendar year basis. If, at the time of Closing, the Property is subject to or affected by any assessment for water, sewer or other utilities which is or shall be a charge or lien against the Property, such assessment, regardless of when due and payable, shall be deemed then due and payable and shall be paid in full at Closing by Seller. Seller shall be obligated -to pay any additional taxes and assessments applicable to the Property for the period of time through Closing but which are invoiced after the Closing date. 5. TITLE AND SURVEY. 5.1. At Closing, Seller shall convey good, marketable and insurable title to the Property being purchased by limited warranty deed, free of all monetary liens whatsoever, including, without limitation, broker lien claims of which notice has been received but for which a lien has not yet been filed of record, and which shall expressly be made subject only to the matters applicable to such Parcel(s0 which are approved or waived by Purchaser as provided below. "Insurable title" shall mean title insurable at standard rates by Old Republic National Title Insurance Company or Chicago Title Insurance Company, as selected by Purchaser, with a standard ALTA owner's title insurance policy form issued without exceptions except for the following ("Permitted Exceptions"): taxes and assessments of the year of Closing and subsequent years, the Declaration (hereafter defined), and those exceptions accepted or waived by Purchaser in Section 5.2 below. 5.2. On the date of the Closing, the Property shall be subject only to the Permitted Exceptions. Seller shall have the Property surveyed by a surveyor registered in Georgia and shall have the right to make such title examination of the Property as Purchaser desires. If Purchaser objects to any matter of survey or title, Purchaser shall notify Seller of such objection in writing on or before the termination of the Inspection Period. Failure to timely give such notice during the ..Inspection Period shall be deemed to be a waiver of Purchaser's right to object to any title exception or survey matter, and any title or survey matter to which Purchaser does not properly object during the Inspection Period shall be included in the term "Permitted Exceptions"; provided, however, any such objection which was not capable of being discovered during such period shall not be deemed waived. If such notice is timely given, Seller shall then have the right, but not the obligation, to cure and satisfy such objection prior to Closing and if Seller does not respond to the contrary within ten (10) days of receipt of notice of any such. objection from Purchaser, Seller shall be deemed to have agreed to cure such objections. If the objections of which Purchaser has properly given notice of objection prior to the expiration of the Inspection Period are not timely satisfied by Seller or if Seller elects within such ten (10) day period not to cure all of such defects, Purchaser shall have the right to terminate this Agreement. If the Agreement is terminated, the entire Earnest Money shall be promptly refunded to Purchaser, this Agreement -4- 13s1oasv3 z shall terminate, and the parties shall be relieved of any further obligations hereunder except any obligations which are expressly stated to survive the termination of this Agreement. 5.3. Seller agrees not to further alter or encumber in any way title to the Property after the Effective Date of this Agreement without the express written consent of Purchaser. Purchaser shall have a continuing right to examine title to all or any -portion of the Property, and Seller shall, within'ten (10) days of notice from Purchaser, cure and/or satisfy, at Seller's expense, any additional encumbrances placed on Property by Seller not previously approved by Purchaser pursuant to Section 5.2 and as to which Purchaser gives notice to Seller, and the failure to do so shall constitute a default by Seller hereunder. 6. CONTINGENCIES. 6.1. Purchaser's agents, employees, independent contractors and assigns shall have the right to conduct, at Purchaser's sole expense, such physical, environmental, engineering and feasibility studies as Purchaser deems appropriate in an effort to determine whether or not to proceed with the Closing Without limiting the foregoing, Purchaser, Purchaser's agents, employees, independent contractors and assigns shall have the right to come onto the Property for the purpose of conducting the foregoing studies. Upon the completion of any inspection, examination or test, if any, Purchaser shall restore the Property to substantially its former condition. Purchaser agrees to indemnify, defend and hold Seller harmless from any and all claims and expenses (including, without limitation, reasonable attorney's fees and court costs) with respect to personal injury and physical damage to property arising out of the exercise by Purchaser of Purchaser's rights under this Section and such indemnity shall survive the Closing hereunder or the earlier termination of this Agreement. Purchaser shall have the right to install a marketing sign on the property upon execution of this Agreement. 6.2. IfJor any reason, in Purchaser's sole discretion, Purchaser considers the Property to be unsuitable for Purchaser's intended use, Purchaser may terminate this Agreement by delivering written notice to Seller on or before the one hundred twentieth (120th) day after the Effective Date (such one hundred twenty (120) day period being referred to as the "Inspection Period"), in which event this Agreement shall terminate and all Earnest Money shall be refunded to Purchaser, except for One Hundred ($100.00) Dollars which shall be paid to Seller. Upon the termination of this Agreement pursuant to this Section, the parties shall be relieved of any further obligations hereunder other than the indemnities and other obligations which are specified to survive the Closing hereunder or the earlier termination of this Agreement. Seller and Purchaser each acknowledge that both Seller and Purchaser have incurred certain expenditures and other resources in connection with this transaction, and the payments described herein, in the event of such termination, constitute good, valuable, sufficient and adequate consideration of each party's execution and entry into this Agreement. -5- 13514Uv3 6.3. - If, prior to Closing, any federal, state, county or municipal authority, or any agency or subdivision thereof, takes any action (including a moratorium) which precludes the issuance of permits for the construction of dwellings or retail or office space on, and/or sewer, water or utility connections or taps for, all or any portion of the Property for a period in excess of forty-five (45) days, Purchaser or Seller, at its sole option, shall have the right to (i) extend the date of Closing for the same length of time as the action is in effect beyond the otherwise applicable date for Closing, or (ii) if such action is to be in effect for a period in excess of six (6) months, terminate this Agreement and, in the event of such termination, Purchaser shall receive a refund of the Earnest Money. Seller shall notify Purchaser in writing within five (5) days after receipt by Seller of any formal notification from any such authority of any such actual or proposed action affecting any portion of the Property. Either party may exercise any of its rights hereunder at any time after it becomes aware of action triggering its rights hereunder, but Purchaser shall have no more than thirty (30) days after receipt of notice from Seller of an action triggering Purchaser's rights hereunder to notify Seller of its intent to exercise its rights hereunder, or such rights shall be deemed waived. 7. SELLER'S REPRESENTATIONS AND WARRANTIES. As of the date of Closing, Seller represents and warrants to Purchaser that: 7.1. Seller owns, and at Closing shall own, fee simple title to the Property at the Closing and such statement shall continue to be true with respect to the Option Parcels until acquired by Purchaser. Seller warrants that Seller's execution, delivery, and/or performance of this Agreement is not prohibited by and will not constitute a default under any other agreement, covenant, document or instrument to which Seller is a party. There are no other contracts of any kind with respect to the Property except for those that shall be delivered to Purchaser pursuant to Section 14. 7.2. No assessments have been made against any portion of the Property which are unpaid, except ad valorem taxes for the current year, whether or not they have become liens, and Seller shall immediately notify Purchaser upon learning of any such assessment. 7.3. To the best of Seller's knowledge, there is no action or proceeding pending, threatened or instituted for foreclosure or condemnation of any part of the Property by friendly acquisition or statutory proceedings, nor does Seller have any knowledge of any other claim against Seller or the Property which could adversely affect title to the Property and Seller has not received written notice of any claim against the Property which is not of public record. -6- 13s1I880 1 \ 7.4. Possession of each Parcel will be delivered to Purchaser at the Closing with respect to such Parcel(s) and Seller knows of no claim of possession r by any other party. 7.5. No person, firm, or entity has any rights in or to acquire the Property or any part thereof. 7..6. From the date hereof until the Closing hereunder with respect to each Parcel, or the termination of this Agreement, Seller shall not, except as otherwise contemplated in this Agreement, authorize any improvements to such Parcel, cause or allow any lien or encumbrance to be placed on such Parcel or accept or authorize a sale or lease of all or any portion of such Parcel without the express written consent of Purchaser, which consent may be withheld in the sole discretion of Purchaser. 7.7. Seller shall maintain in force until possession of each Parcel is granted to Purchaser any existing casualty and general liability insurance with respect to the Property. 7.8. No portion of the Property is being used, or, to the best knowledge of Seller, at any previous time has been used, as a dump or fill or for the disposal, storage, treatment, processing or other handling of, and the Property is free of, all hazardous substances, as defined in t he Comprehensive Environmental Response, Compensation, and Liability Act, 42. U.S.C. Section 9601, et seq., as amended ("CERCLA") and the Property contains no condition as of the date of closing which will result in recovery by any person or instrumentality of government (federal, state or local) of costs of response, removal or remedial action, or of damages for loss of natural resources, under CERCLA or under Georgia law. 7.9. Purchaser's obligations hereunder are subject to all of the above warranties and representations being true in every material respect. If, prior to Closing as to each Parcel, any of the foregoing prove to be untrue in any material respect, Purchaser may elect to terminate this Agreement, in which case, the Earnest Money shall be immediately refunded to Purchaser and the parties shall have no further obligations hereunder except for any indemnities and other obligations which are specified to survive the Closing or the earlier termination hereof 8. CONDEMNATION AND CASUALTY. 8.1. If, after the Effective Date and prior to Closing with respect to a given Parcel, Seller shall receive notice of the commencement or threatened commencement of eminent domain or other like proceedings against such Parcel or any land over or under which easements are to be provided to any Parcel or any portion thereof, Seller shall immediately notify Purchaser in writing and Purchaser.. shall elect within twenty-one (21) days of receipt of such notice, by delivering -7- 1351488v3 written notice to Seller, either (a) not to purchase the Property subject to the proceedings, in which event the Earnest Money shall be refunded to Purchaser and the parties shall be relieved of any further obligations hereunder except for any indemnities and other obligations which are specified to survive the Closing or the earlier termination hereof; or (b) to close the transaction contemplated hereby in accordance with its terms, but subject to such proceedings, in which event the Purchase Price shall remain the same and Seller shall transfer and assign to Purchaser at Closing all condemnation proceeds and- rights -,to additional condemnation proceeds, if any. If Purchaser elects to purchase after receipt of such a notice, all actions taken by Seller with regard to such eminent domain proceedings, including, but not limited to, negotiations, litigation, settlement, appraisals and appeals, shall be subject to the approval of Purchaser, which approval shall not be unreasonably withheld. If Purchaser does not so notify Seller, Purchaser shall be deemed to have elected to close the transaction contemplated hereby in accordance with clause (b) of this Section. 9. BROKERS. Purchaser and Seller each represent and warrant to the other that such party has not dealt with a broker, agent or finder in connection with this transaction, and Purchaser and Seller covenant and agree, each to the other, to indemnify and hold each other harmless from any and all losses, damages, costs and expenses, including, but not limited to, reasonable attorney's fees and court costs, that may be incurred or suffered by the indemnitee because of any claim for any fee, commission or similar compensation with respect to this transaction made by, through or under any indemnitor, whether or not such claim is meritorious. The foregoing indemnities shall survive the Closing hereunder or the earlier termination hereof. 10. NOTICE. Each notice or document (collectively referred to in this Section as "notice") required or permitted to be given hereunder must comply with the requirements of this Section. Each such notice shall be in writing and shall be delivered either by confirmed telecopy, by personally delivering it, by delivering it utilizing Federal Express, UPS or other reputable courier service, or by depositing it with the United States Postal Service or any official successor thereto, certified mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate party (and marked to a particular individual's attention Such notice shall be deemed delivered at the time of confirmation of receipt by the transmitting telecopy (if during regular business hours) on a weekday which is not a holiday on which banks in Atlanta, Georgia may be closed, the date of personal delivery, the date of deposit for delivery with a courier, or, if mailed, when it is deposited as provided above, but the time period in which a response to any such notice must be given or any action taken with respect thereto shall commence to run from the date it is actually received by the addressee thereof, as evidenced by telecopy transmission confirmation, receipt for personal or courier delivery, or certified mail return receipt. Rejection or other refusal by the addressee to accept the notice shall be deemed to be receipt of the notice sent. In addition, the inability to deliver the notice because of a change of address of which no notice was given as provided below shall be deemed to be the receipt of the notice sent. The addresses and telecopier numbers of the parties to which notice is to be sent shall be those set forth on the signature pages of this Agreement. A party's address -8- 13514880 z and telecopier number may be changed only by such party by written notice to all other parties. ANY NOTICE WHICH IS INTENDED TO INITIATE A RESPONSE PERIOD SHALL BE EFFECTIVE TO DO SO ONLY IF IT SPECIFIES THE APPLICABLE RESPONSE PERIOD AND THE SECTION OF THIS AGREEMENT WHICH CONTAINS SUCH RESPONSE PERIOD. 11. DOCUMENTS. At or prior to Closing, each party shall deliver to the other party appropriate evidence to establish the•authodty of such party to enter into and close the transaction. Seller shall also deliver to Purchaser, at Closing, a limited warranty deed and affidavit of title with respect to the Parcel(s) being acquired in a form satisfactory to enable the title insurer to issue title insurance without exception for mechanic's, materialmen's or other statutory liens or for the rights of parties in possession. The parties shall also execute and deliver at Closing any other documents reasonably necessary or appropriate to complete and evidence the transaction contemplated hereby. 12. DEFAULT AND REMEDIES. If the sale of the Parcels being acquired at the initial Closing do not close because of Purchaser's default, the Earnest Money or, with . respect to the closing of the purchase of an Option Parcel after the option under Section 3.3 hereof has been exercised with respect thereto, One Thousand and No/100 Dollars ($1,000.00) shall be paid to Seller as Seller's sole remedy as full and complete liquidated damages fo- such default, the parties hereby acknowledging and agreeing that (i) the amount of Seller's actual damages in such circumstance would be difficult, if not impossible, to determine, (ii) the foregoing is the parties' best estimate of such damages, and (iii) the foregoing shall not constitute a penalty. Seller hereby expressly waives the right to see:< specific performance or other damages. If Seller defaults under this Agreement, and, as a result, the sale contemplated hereby does not close within the time specified he ein, as may be extended by the parties, Purchaser, at its election, may (i) avail itself of the equitable remedy of specific performance, or (ii) if Purchaser is unable to obtain specific performance, pursue damages, or (iii) terminate this Agreement by written notice to Se'ler, whereupon the Earnest Money shall be refunded to Purchaser, and the parties shall be relieved of any further obligations hereunder except for any indemnities and other obligations which are specified to survive the Closing or the earlier termination hereof. 13. EASEMENTS. Purchaser and Seller shall negotiate in good faith to agree upon a Declaration of Easements, Covenants and Conditions ("Declaration") which shall contain and set forth the terms of the following easements and rights for the benefit of Seller and Purchaser and any subsequent owner of a Parcel, as applicable: 13.1. At no charge, easements (including, without limitation, easements for surface water detention) as may be reasonably necessary for an orderly and logical development of each Parcel of the Property. The nature, location, terms and conditions of such easements shall be contained either in the Declaration or on a site plan to be agreed upon by Purchaser and Seller during the Inspection Period (the "Site Plan"). -9- 13514880 13.2. Easements, as necessary in order to provide utility service to each Parcel of the Property, for the installation of utility lines and related facilities, inclucing, without limitation, sanitary or storm sewer, water, gas, telephone, cable television, surface water drainage or pooling, and electricity (hereinafter referred to as the "Utility Facilities"), at no charge, provided: (a) The location of the Utility Facilities shall be substantially as set forth on the Site Plan; (b) Seller shall be responsible for all costs and liabilities in connection with the design, installation, use, maintenance and repair of the Utility Facilities and for compliance with all applicable statutes and regulations; (c) Any such easements granted by Seller shall be reciprocal and nonexclusive in nature, and shall allow Seller and Seller's successors and assigns to utilize and connect to the Utility Facilities for the provision of utility services to the Option Parcels; (d) Purchaser shall promptly restore to its former condition any land of Seller which is disturbed by Purchaser's activities under this subsection and the easements herein contemplated. If Pur -haser and Seller fail to agree upon the Declaration and the Site Plan within the Iectic i Period, either Seller or Purchaser shall have the right, to be exercised within 7pf U days after the expiration of the Inspection Period, to terminate this Agreement l:y written notice to the other party, whereupon the Earnest Money shall be refunded to Purchaser, and the parties shall be relieved of any further obligations hereunder e <cept for any indemnities and other obligations which are specified to survive the Closing or the earlier termination hereof. 14. DELIVERY OF DEVELOPMENT INFORMATION. Within fifteen (15) days after the Ef:ective Date of this Agreement, Seller shall deliver to the Purchaser the following doc.iments and information, if available: (a) Evidence of the status of the zoning of the Property; (b) Evidence of sanitary and storm sewer, water, electricity, gas, and telephone service availability; (c) Copies of all governmental approvals obtained with respect to any of the Property; (d) Copies of all boundary surveys in the possession of Seller; -10- 13514880 (e) Copies of all covenants, restrictions and easements that burden or benefit the Property; and (f) Any and all items in the possession of Seller which Purchaser may reasonably request in connection with Purchaser's inspection of the Property. 15. ._ ESCROW AGENT. In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses or expenses except for willful defaut or breach of trust and it shall accordingly not incur any such liability with respect (a) to any action taken or omitted in good faith upon advice of its counsel or (b) to any action taken or omitted in reliance upon any instrument, including any written notice or instruction p ovided for in this Agreement, not only as to the execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signet or presented by a proper person or persons and to conform with, the provisions o- this Agreement. The parties hereby agree to indemnify and hold harmless Escrow AgElt against any and all losses, claims, damages, liabilities and expenses, including re�-.sonable costs of investigation and counsel fees and disbursements, which may be imp�.sed upon Escrow Agent or incurred by Escrow Agent in connection with its acceptance �r the performance of its duties hereunder, including any litigation arising from this Agreem =nt or involving the subject matter hereof. In the event of a dispute between any of the p�irties hereto sufficient in the discretion of Escrow Agent to justify its doing so, Escrow Age: ,t shall be entitled to deliver into court all money or property in its hands under this Agreemi: nt, together with such legal pleadings as it deems appropriate, and thereupon be dischargf J from all further duties and liabilities under this Agreement. Any such legal action may : a brought in such court in metropolitan Atlanta, Georgia, as Escrow Agent shall determ le to have jurisdiction thereof. The parties shall bear all costs and expenses of any such gal proceedings; provided, however, that as between Purchaser and Seller, the party wf ;:;h wins such dispute shall be entitled to have its reasonable attorneys fees and court co is paid by the other party. 16. TIME OF ESSENCE. Time is of the essence with respect to the performancc- of each party's obligations hereunder. 17. POSSESSION. At the Closing hereunder, Seller shall deliver to Purchaser actual possE ssion of the applicable Parcel(s) being acquired. 18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties' successors and assigns. Neither party may assign part or all of its rights and duties under this Agreement without the prior written consent of the other, except that Purchaser may assign its rights and duties to any entity in G.K. Johnson and/or men-oer(s) of his immediate family own or control a majority of the beneficial interest thereof or has an interest in the management of the Property. 19. SURVIVAL. All provisions of this Agreement shall survive. -11- 13514Uv3 z 20. APPLICABLE LAW/JURISDICTION. This Agreement shall be construed and interpre, ed under the laws of the State of Georgia. 21. EXHIBITS. The exhibits referred to in and attached to this Agreement are incorporated herein in full by reference. 22. CAPTION/GENDER. Titles or captions of Sections or subsections contained it this Agreement are inserted only as a matter of convenience and for reference ar J in no way define, limit, extend or describe the scope of this Agreement or the intent c f any provisions hereof. References to the singular shall mean, where applicable, f ;a plural and vice versa. 23. NO JOINT VENTURE. It is hereby acknowledged by Purchaser and Seller that the rela onship between them created hereby is not intended to be and shall not in any way be )nstrued to be that of a partnership, joint venture, or principal and agent. 24. CONSTRUCTION OF AGREEMENT. Purchaser and Seller acknowledge they have rE _:d, understand and have had the opportunity to be advised by legal counsel as to each _and every one of the terms, conditions, restrictions and effect of all the provisions o- this Agreement, and Purchaser and Seller agree to the enforcement of any and all of tl ese provisions and execute this Agreement with full knowledge of these. Should any .:rovision of this Agreement require judicial interpretation, it is agreed that the court interpr-ting or construing the provision shall not apply a presumption that the terms hereof shal! be more strictly construed against one party by reason of the rule of construction ,hat a document is to be construed more strictly against the party who itself or through its E ent prepared the document. This Agreement constitutes the parties' entire agreement =nd supersedes all prior written and oral understandings of the parties' regarding th, : Property. The parties shall be bound only by the provisions contained herein and by any : ubsequent modifications agreed to in writing by Purchaser and Seller (any parties othe than Purchaser and Seller not being necessary parties to the execution of any modificE ?;ons to this Agreement, other than to Sections 9 and 15). If any provision of this Agreem :nt is found to be unenforceable, the parties shall be bound by the remaining provisions o-' this Agreement in the same manner as if such unenforceable provision had not been included herein, it being the intention of the parties that all provisions of this Agreement E:re severable. 25. COUNTERPARTS. This Agreement may be executed in separate counterparts. It shall be fully executed when each party whose signature is required has signed at IE3st one (1) counterpart even though no one (1) counterpart contains the signatures of all the parties. 26. SPECIAL STIPULATIONS. The special stipulations, if any, set forth on the exhibit to this Agreement captioned "Special Stipulations" are a part of this Agreement and shall control in the event of any conflict or inconsistency with the provisions contained in - the main body of this Agreement. -12- 13514880 27. OFFER, ACCEPTANCE AND CONTRACT. Acceptance of this offer shall be deemed,.-) occur only if Seller shall have delivered to Purchaser (within five (5) days of 'the date of -zxecution by Purchaser) at least one (1) copy of this Agreement properly executed by Seller. The date that this Agreement is last signed or initialed by either Purchaser o - Seller shall constitute the "Effective Date" as such term is used herein. IN W -NESS WHEREOF, the undersigned have set their hands and seals hereto as of the dad and year indicated under their signature. PURCHASER: GKJ DEV LDPM LLC By: Johnson, Manager Address: 2893 Springview Court Atlanta, Georgia 30339 Telephone Number: 404-609-9004 Telecopier Number: 404-609-9993 Date Signed: S- 5-01 With a copy to : Arnall Golden Gregory LLP 2800 One Atlantic Center 1201 W. Peachtree Street Atlanta, Georgia 30309-3450 Attn: J. Grant Wilmer, Jr., Esq. Telephone Number: 404-873-8686 Telecopier Number: 404-873-8687 SELLER: THE SMYRNA DOWNTOWN DEVELOPMENT AUTHORITY By: Name: Address: -13- 1351488v3 Telephone Number: Telecopier Number: Date Signed: THE CITY F SM EORGIA By: Name: A. Max Bacon Title Mayor Address:2800 King Street Smyrna, GA ROORO Telephone Number: 770 319 5302 Telecopier Number: 770 319 5316 Date Signed: 05 09 2010 ESCROW AGENT: By: Name: Title Address: Telephone Number: Telecopier Number: Date Signed: -14- 13514880 ti EXHIBIT A The Property i 13514880 ti City Hall paviryj `y c�reen5r ice destr Exist. Parking (Smyrna Gap. Church) n St. ;ing is Ent.) . Special Stipulations 1. M tual Development. As referenced in Section 13, during the Inspection Period, Purc -laser and Seller shall negotiate toward agreeing upon a Site Plan and a Declaration agarding the development and maintenance of the Property and certain adjoining pr( )erty of Seller. Purchaser will be the Declarant under the Declaration and the Declarat m will require that the Property and the adjoining property owned by Seller (the "Adjoin! g Property") shall be developed and maintained as a first class property with the sty idards of other first class properties similar to the Property, it being acknowledge. J that the Post Riverside development on Cobb Parkway is an example of such a props ty. 2. SE lees Responsibilities. Purchaser and Seller acknowledge and agree that the Purcha: -r is responsible for the acquisition of certain real property which is the subject of tl• ; Agreement and the relocation of streets and the installation of utilities to the boundar of each Parcel of the Property.which are to the direct benefit of the parties hereto 3. S �cial Termination Right. In the event Purchaser and Seller do not agree upon the Si - Plan and the Declaration before the expiration of the Inspe tion Period, either Seller )r Purchaser shall have the right, to be exercised within (� days � ter the expiration of the Inspection Period, to terminate this Agreement by written notic to Seller, whereupon the Earnest Money shall be refunded to Purchaser, and the par as shall be relieved of any further obligations hereunder except for any indemnities id other obligations which are specified to survive the Closing or the earlier termination I �reof. �v 13514880