HomeMy WebLinkAbout1993 12 16 - Sales AgreementGENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation
SALE TO
CITY OF SEBASTIAN, FLORIDA
DECEMBER 16, 1993
1. Original Closing Statement
2. Original Recorded Warranty Deed
3. Original Recorded Assignment of Plat and Other Easements
4. Original Recorded Assignment of Easements
5. Original Certificate
6. Original Certificate of Authority
7. Original Bill of Sale
8. Original Assignment and Assumption of Business Records,
Transferable Permits, Customer Deposits, Developer
Agreements and Service Contracts
9. City of Sebastian Resolution No. R-93-63
10. City of Sebastian/General Development Utilities, Inc.
Water and Wastewater Purchase and Sale Agreement
11. Affidavit
12. Original Commitment for Title Insurance
13. Agreement
14. State of Florida Certificate of Goodstanding
AMIN 0OWN
CLOSING STATEMENT
SELLER: GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation
BUYER CITY OF SEBASTIAN, FLORIDA
SUR,IECf PROPERTY: Real property and improvements and personal property and fixtures comprising
the water and sewer utilities system of Seller situate on real property located in
Indian River County, Florida and commonly known as the Sebastian Highlands
Water and Sewer System (the "System").
GOVERNING CONTRACT: Water and Sewer System Purchase and Sale Agreement between GENERAL
DEVELOPMENT UTILITIES, INC., a Florida corporation, as Seller and City
of Sebastian, Florida, as Buyer, dated October 12, 1993.
DATE OF CLOSING: December 16, 1993
PLACE OF CLOSING: Melbourne, Florida
TITLE INSURER: First American Title Insurance Company
CLOSING AGENT: Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, PA.
CREDIT BUYER DUE SELLER
PURCHASE PRICE OF SUBJECT PROPERTY $3,650,000.00
ACCOUNTS RECEIVABLE DUE SELLER (See Note 1) P.O.C. (post closing)
UNBILLED REVENUE DUE SELLER (See Note 2) P.O.C. (post closing)
CREDIT FOR CUSTOMER DEPOSITS DUE BUYER
(See Note 5) 40,944.96
CREDIT FOR CONNECTION CHARGES DUE BUYER 10,350.84
CREDIT FOR INVENTORY 8,125.38
FRANCHISE FEES AND UTILITY TAXES P.O.C. (post closing)
(See Note 6)
TOTAL DUE SELLER 3,658,125.38
LESS TOTAL CREDITS TO BUYER 51,295.80
BALANCE DUE SELLER 3,606,829.58
1. No later than twenty (20) days following the date hereof, Buyer shall pay the Seller for 95.00% of all
accounts receivable zero (0) to sixty (60) days old as of the date hereof. Seller shall retain all accounts
receivable which are delinquent for more than sixty (60) days (entitling Seller to the proceeds thereof
if and when paid). Buyer shall promptly turn over to Seller any such delinquent receivables that may
be subsequently paid to Buyer and shall use reasonable efforts to assist Seller in the collection of same,
including, without limitation, discontinuing service to non-paying customers.
2. The Buyer shall pay the Seller for 95.00% of all unbilled revenue prorated as of the date hereof within
thirty (30) days following actual billing.
3. Buyer agrees to the extent consistent with § 768.28, Florida Statutes, to indemnify and hold the Seller,
its successors and/or assigns, harmless for any actions, expenses, damages and/or liabilities, including
costs and attorney's fees at trial and all appellate levels, to which Seller may be exposed in the future
GTH\GOLDMANJ\173492.1\12/14/93
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in connection with or arising out of the Seller's transfer of utility connection charges pursuant to Section
11.1(5) of the Governing Contract.
4. The Buyer agrees that the payment of any additional fees, which exceed those fees set forth in
paragraph 5 of the Seller's Expenses of Sale attached hereto, for new license plates, registrations or
otherwise for vehicles transferred to the Seller pursuant to the Governing Contract are the sole and
exclusive responsibility of the Buyer.
5. Seller has on even date herewith credited to Buyer all customers' water and sewer service security
deposits and accrued interest held by the Seller with respect to the System in the amount of $40,944.96.
Buyer agrees to continue to provide utility services to those customers for which a deposit is held and,
to the extent consistent with Section 768.28, Florida Statutes, to fully indemnify, defend and hold Seller
harmless for any claims, actions, expenses, liabilities, costs or damages, including costs and attorneys'
fees at trial and/or appeal, to which Seller may be exposed in the future as a result of the transfer of
such customer deposits.
6. Seller shall pay Purchaser all Franchise fees and utility taxes in accordance with subparagraph 11.2 of
the Governing Contract.
7. Pursuant to Section 31 of the Governing Contract, in each instance in which either the Seller or the
Buyer is to receive money from the other party after the date hereof pursuant to the provisions of the
Governing Contract or this Closing Statement, the party who is entitled to receive the money under the
terms of the Governing Contract or this Closing Statement shall have the right to inspect, at its own
expense, those books and records of the other party as may be necessary to corroborate the accuracy
of the amount of money received by the party, within thirty (30) days of receipt of payment.
8. The parties agree that in the event of any mathematical, typographical or clinical errors in this Closing
Statement, at the request of either party, the parties will make the appropriate adjustments hereto and
remit any monies which may be determined to be owing.
GTH\GOLDMANJ\173492.1\12/14/93
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SELLER'S EXPENSES OF SALE
Seller hereby authorizes the deduction of the following described expenses of sale from the Cash Balance
Due Seller as shown on the Closing Statement and hereby requests and directs that the Closing Agent disburse
directly to the persons hereinafter named the following amounts to cover Seller's expenses of sale, as follows:
1. To First American Title Insurance Company $ 1,213.00
as payment for the cost of preparing the
title commitments.
2. To Greenberg, Traurig et al. as payment $13,025.00
for the cost of the title premiums.
3. To Atlantic Coastal Title Corporation $ 539.00
for the cost of title reports.
4. To Indian River County Clerk of $ 250.00
The Circuit Court as payment for
the recording costs of any
corrective documents, satisfactions
an/or releases of Gens/mortgages
(estimated)
5. To Indian River Clerk of the Circuit
Court in payment of Documentary
Stamp Tax payable on the Deed
calculated on $3,650,000.00. $ 25,550.001
6. Payoff of Leased Vehicles to G.E. Capital $ 511.00
Fleet Services
7. Payoff of Real Estate Taxes through $ 10,713.33
December 16, 1993
8. Payoff of Personal Property Taxes through $ 84,807.10
December 16, 1993
TOTAL SELLER'S EXPENSES: $136,608.43
1 To be held in escrow by Frese, Nash & Torpy, P.A.
GTHWOLDMANA173492.1\12/14/93 3
BUYER'S EXPENSES OF SALE
Buyer, in addition to the Cash Due Seller as shown above, is obligated for the payment of and
simultaneously herewith has paid to Greenberg, Traurig, et al., closing agent, the funds required to pay the
following described expenses of purchase, and Buyer hereby requests and directs that the Closing Agent disburse
directly to the persons hereinafter named the following amounts to cover Buyer's expenses of purchase, as
follows, to wit:
1. To Indian River County Clerk of the
Circuit Court as payment for the cost
of recording the Deed and
Assignments of Easements (estimated)
TOTAL BUYER'S EXPENSE
GTH\GOLDMANJ\173492.1\12/14/93 4
75.00
$--i5 00
SUMMARY
CASH BALANCE DUE
CASH BALANCE DUE
TO SELLER FROM PAGE 1
3,606,829.58
FROM BUYER FROM
PAGE 1
3,606,829.58
LESS SELLER'S (-)
PLUS BUYER'S EXPENSES (+)
EXPENSES OF SALE
FROM PAGE 4
75.00
FROM PAGE 3
136,608.43
NET CASH DUE TO SELLER
3,470,221.15
TOTAL CASH DUE FROM
BUYER
3,606,904.58
The Net Cash Due to Seller of $3,470,221.15 will be immediately wired by Buyer to Seller in good federal funds in
accordance with the wire instructions set forth as Exhibit "A" attached hereto.
The total of the Seller's Expenses (less items 5, 7 and 8 (being $15,538.00) will be immediately wired by Buyer to
Greenberg, Traurig, et al. in good federal funds in accordance with the wire instructions set forth as Exhibit 'B" attached hereto
to be disbursed thereafter for payment of the expenses set forth on page 3 hereof.
The total of items 7 and 8 of Seller's Expense and Buyer's Expenses (being�� ^'vrrr^oio1�) are being retained by Frese, Nash
& Torpy, PA. for payment of all recording fees and documentary stamp taxes due in connection with the recording of the deed,
assignment of easements, and assignment of plat easements and for payment of all real estate taxes and personal property taxes.
Item 5 of Seller's Expenses is to be held by Frese, Nash & Torpy. PA. pursuant to separate escrow agreement to be executed
by and between the parties hereto.
GTN\G0LDMNJ\173492.1\12/14/93
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APPROVAL OF CLOSING STATEMENT
Seller and Buyer hereby acknowledge that they have read and approved the within and foregoing Closing Statement and
agree that it accurately reflects the substance of the transaction and hereby approve the Buyer's payment and the Closing Agent's
disbursement of the proceeds of the subject transaction in the manner, in the amounts and to the persons hereinabove set forth.
Items designated "P.O.C." shall be paid by Buyer after Closing as provided in the Governing Contract.
In the case of estimated closing costs and expenses directed to be paid, as aforesaid, Seller and Buyer understand and
agree that in the event that the actual expenses are less than or more than the estimate, Seller and Buyer, as the case may be,
will be refunded the difference between the estimate and the actual expenses.
IN WITNESS WHEREOF, Buyer and Seller have caused this Closing Statement to be executed by their respective
officers thereunto duly authorized as of the Closing Date.
GENERAL DEVELOPMENT UTILITIES,
INC., a Florida ora on
BY: 45C4
Its: President
"SELLER"
CITY OF SEBASTIAN, FLORIDA
BY:
Its:
"BUYER"
UNDERTAKING OF CLOSING AGENT
Closing Agent hereby agrees with Buyer and Seller to undertake its duties as Closing Agent for the subject purchase and
sale transaction, to abide by and comply with the within and foregoing instructions of Buyer and Seller, and to disburse the
proceeds of the subject purchase and sale transaction at Closing in the manner, to the persons, in the amounts, and at the times
hereinafter specified in the within and foregoing Closing Statement.
GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN
& QUENTEL, PA.
BY: `Ate J
UNDERTAKING OF FRESE. NASH & TORPY
The undersigned hereby agrees with Buyer and Seller to (i) promptly record the original Warranty Deed, Assignment
of Easements and Assignment of Plat and Other Easements in the public records of Indian River County, Florida and to promptly
provide evidence of recordation to the Closing Agent; and (ii) pay the outstanding real and personal property taxes on December
16, 1993 and to promptly provide Closing Agent with evidence of such payment.
FRESE, NASH & TORPY, P.A.
BY: 1//'
GTH\GGLONANJ\173492.1\12/14/93
RETURN TO =ete�g IAA" 1 dad �� •�
'f'1O S. +i6i¢ano2 0,211 B�JD I s7Ez ScS' DOCUMENTARY STAMPS '
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DEED 5 .70
This Instrument prepared by or under the supervision of:
NOTE $
Name: Joel K. Goldman, Esq. JEFFREY K. BARTON, CLERK
p o Address: Greenberg, Traurig, Hoffman, Upoff, Rosen & Cuentel, P.A INDIAN RIVER COUIM
S n� 1221 &Ickell Avenue
1 Miami, Florida 331313261
(Space reserved for Clerk of Court)
Property Appraiser's Parcel
1. D. #
RECORD VERIFIED
JEFFREY K. BARTON
CLERK CIRCUIT COURT
INDIAN RIVER CO., FLA
WARRANTY DEED
Grantee(s) Taxpayer
I.D.#Sq- f000yZ-1
THIS DEED Is made as of the I W"- day of December, 1993, between GENERAL DEVELOPMENT
UTILITIES, INC., a Florida corporation (the "Grantor) and CITY OF SEBASTIAN, FLORIDA (the "Grantee"),
whose address Is 1225 Main Street, Sebastian, Florida 32958.
WITNESSETH:
GRANTOR, In consideration of Ten ($10.00) Dollars and other good and valuable consideration paid
by Grantee, the receipt and sufficiency of which are hereby acknowledged, has granted, bargained and sold,
and by these presents does grant, bargain and sell, to Grantee, and Grantee's successors and assigns
forever, the following property located In Indian River County, Florida (the "Property"), to-wft:
See Exhibit "A" attached hereto and by this reference made a part hereof.
SUBJECT TO:
1. Taxes and assessments for the year 1993 and subsequent years.
2. All laws, ordinances and governmental regulations, including, but not limited to, all applicable
building, zoning, land use and environmental ordinances, regulations, restrictions, prohibitions
and other requirements, none of which will prevent or hinder the present use of the Property.
3. Restrictions and easements for utilities and drainage set out in recorded plats of subdivisions.
4. Restrictions of record (except liens, encumbrances or mortgages) that do not Impair, restrict
or inhibit the present use of or improvement to the Property as permitted by applicable zoning
and land use regulations presently in effect and that are not coupled with a forfeiture or
reversionary provision, without the intention of reimposing same.
5. All matters which would be disclosed by an accurate survey of the Property.
TO HAVE AND TO HOLD unto Grantee and Grantee's successors and assigns in fee simple
forever.
GRANTOR hereby warrants the title to the Property subject to the foregoing matters and will defend
the same against the lawful claims of all persons whomsoever.
IN WITNESS WHEREOF, Grantor has executed this Deed as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
k i 11'�
Sign Name
Print Name:
Sign Name:
Print Name: V S=cl G06,"
GENERAL DEVELOPMENT UTILITIES, INC., a
Florida cor or tion
BY:
L/
Print Name: Charles E. Faucher r.
Title: President
Address: 2601 South Bayshore Drive
Miami, Florida 33133
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This Deed is being given under Grantee's threat of condemnation, and is therefore C)
exempt from documentary stamp taxes pursuant to that certain Florida Supreme Court —
decision captioned Florida Department of Revenue v. Orange County, 620 So. 2d 991 O
(Fla. 1993). CD
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STATE OF FLORIDA )
) SS:
COUNTY OF 1lkr -r& VJ F?-.cuOtZ )
The foregoing Warranty Deed was acknowledged before me this IN day of December, 1993 by
Charles E. Fancher, Jr., as President of GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation,
on behalf of the corporation. He personally appeared before me,Ls personally known to me) or produced
as Identification.
-?CTAL NOTARY SEAL"
., ;. HEARTSFIELD
+` TzP- 3/18/94
em\mlw,u\16)56. qugOHa
Notary: -
Print Name: c A C . A!
Commission No: A 7 330
Notary Public, State of VLOikrpa
My commission expires: a - i IF- -
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PARCEL I:
All of Tract "D" as shown on the plat of SEBASTIAN HIGHLANDS
UNIT -17, as recorded in Plat Book 8, Page 46, Public Records of
Indian River County, Florida.
PARCEL II:
A parcel of land located in the Northeast 1/4 of the Northeast
1/4;
LESS the East 20 acres thereof and a portion of the Southeast
1/4 of the Northeast 1/4 of Section 18, Township 31 South, Range
39 East, Indian River County, Florida, and being more
particularly described as follows:
Begin at the Northeast corner of said Section 18, Township 31
South, Range 39 East; thence South 89022136" West, along the
North line of the said Northeast 1/4 of Section 18, a distance
of 657.45 feet to the Northwest corner of the said East 20 acres
of the Northeast 1/4 of the Northeast 1/4; thence South
00001124" West, along the West line of the said East 20 acres, a
distance of 1325.55 feet, to a point in the South line of the
said Northeast 1/4 of the Northeast 1/4; said point also being
the Northwest corner of Sebastian Highlands Unit 9, as recorded
in Plat Book 6, Page 36A, Public Records of Indian River County,
Florida; thence continue along the boundary of said plat of
Sebastian Highlands Unit 9, the following courses and distances:
thence continue South 00001124" West, a distance of 130.66 feet
to a point in a curve concave to the Southwest having a radius
of 435.64 feet, the chord of which bears North 85020121" West;
thence Westerly along the arc of said curve, a distance of 70.30
feet, through a central angle of 0901414811, departing said
platted boundary;
thence North 00001124" East, a distance of 54.11 feet;
thence South 89019102" West, a distance of 71.5 feet more or
less, to the Easterly waters edge of Schumann Lake;
thence Northwesterly, Westerly, Southerly, Southeasterly,
Southwesterly, Westerly and Southerly meander the waters edge of
Schumann Lake, a distance of 1847 feet, more or less, to the
South line of the said Southeast 1/4 of the Northeast 1/4;
thence South 89015127" West, along the South line of the said
Southeast 1/4 of the Northeast 1/4, a distance of 97.9 feet,
more or less, to the Southwest corner of the said Southeast 1/4
of the Northeast 1/4;
thence North 00°A1125" West, along the West line of the said
East 1/2 of the Northeast 1/4, a distance of 2652.47 feet to the
aforesaid North line of the Northeast 1/4;
thence North 89022136" East along the said North line, a
distance of 673.15 feet to the Point of Beginning.
PARCEL III:
The East 200 feet of Tract "A", SEBASTIAN HIGHLANDS, UNIT 9,
according to the plat thereof, recorded in Plat Book 6, Page 36
and 36A, Public Records of Indian River County, Florida.
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RETURN 10-se��iav, seryl
HE`�"�ea�,2 SrRb!
This instrument prepared by or under the
supervision of:
Name: Joel K. Goldman, Esq.
Address: Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131-3261
Parcel I.D.#
RECORD VERIFI!_d
FREY K,BARTON
CLERK CIRCUIT COURT
INDIp,N 'DIVER CO.. FLA
(Space reserved for Clerk CJ
ASSIGNMENT OF PLAT AND OTHER EASEMENTS
THIS ASSIGNMENT OF PLAT EASEMENTS ("Assignmentle) is made as of
the � day of December, 1993 between ATLANTIC GULF COMMUNITIES
CORPORATION, a Delaware corporation, and GENERAL DEVELOPMENT
UTILITIES, INC., a Florida corporation (collectively, "Assignor@),
whose address is 2601 South Bayshore Drive, Miami, Florida 33133,
and CITY OF SEBASTIAN, FLORIDA ("Assignee") whose address is 1225
Main Street, Sebastian, Florida 32958 and whose taxpayer
identification number is 5 9— (. a 0 o y L'1
W I T N E S S E T H:
ASSIGNOR, in consideration of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration paid by Assignee to
Assignor simultaneously herewith, the receipt and sufficiency of
which are hereby acknowledged, has sold, assigned, transferred, set
over and delivered, and by these presents does sell, assign,
transfer, set over and deliver to Assignee, and Assignee's
successors and assigns forever, all of Assignor's right, title and
interest, if any, in and to the following: (i) those certain
platted utility easements located in INDIAN RIVER COUNTY, FLORIDA
and described on those certain plats set forth on Exhibit IRA"
attached hereto and by this reference made a part hereof (the "Plat
Easementsel); and (ii) those other easement areas for which easement
agreements have yet to be entered into with the respective property
owners and described on Exhibit nBu attached hereto and by this
reference made a part hereof (the IlAdditional Easementsve), which
are currently used by Assignor in the operation of the existing
utility system commonly known as the G.D.U. Sebastian Highlands
Water and Sewer System (the ItSystem'l) .
TO HAVE AND TO HOLD unto Assignee and Assignee's successors
and assigns forever, subject to the terms, covenants and provisions
contained in the Plats, the Additional Easements and the
reservation set forth below.
ASSIGNEE hereby accepts the foregoing Assignment subject to:
(i) the obligations of Assignor under the Plat Easements and the
Additional Easements; (ii) all of the terms, covenants and
provisions contained in the Plats and the Additional Easements; and
(iii) the reservation set forth below.
ASSIGNOR hereby reserves the right and privilege for itself
and its successors and/or assigns, to utilize the Plat Easements in
common with Assignee; provided Assignor's use of the Plat Easements
does not unreasonably interfere with Assignee's use, occupation or
enjoyment thereof.
The parties hereto covenant and agree to cooperate in good
faith to obtain written easement agreements from the respective
owners of the properties where the Additional Easements are
located.
.1
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Assignment as of the day and year first above
written.
Witnessed by:
Witness: Qa<Q rr^�
Print Name - 1-oldM�.,,,
Witness:
Print Name • �N.lES N-EAP_CD
Witness • l l
Print Name: S
Witness:
Print Name: &t4atas L4- FrECA
Witnes
Print
Witnes
Print
STATE OF FLORIDA )
) SS:
COUNTY OF ZoDrj JQ.zVEj?)
ASSIGNOR:
ATLANTIC GULF
CORPORATION,
corporation.
Name: MARC
Title: VICE
COMMUNITIES
Delaware,
11
[CORPORATE SEAL]
GENERAL DEVELOPMENT UTILITIES
INC., a Florid corporation
BY
CHA
Name: RLES E. F Etc; ,�
Title: PRESIDENT
[CORPORATE SEAL]
ASSIGNEE:
CITY OF SEBASTIAN, FLORIDA
By:
: N A joce-
[SEAL]
The foregoing instrument was acknowledged before me this lq
day of December, 1993 by MARCIA H. LANGLEY, as Vice President of
ATLANTIC GULF COMMUNITIES CORPORATION a Delaware corporation, on
behalf of the corporation onally-appeared before m or
produced as identification. 1
\►JRMA
Print Name: f t1a QtES c • 61 Ea�i5�iE
Notary Public, State of Florida
Commission No. Q sq 330
My commission expires: 3 -/$-
[Notarial Seal]
"OFFICIAL NOTARY SEAL°
CHARLES C. REARTSFIELD
MY COMB• EXP, 3/18/94
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STATE OF FLORIDA )
) SS:
COUNTY OF ZMZ>1A&;P-rVW-)
The foregoing instrument was acknowledged before me this
ji—
day of December, 1993 by CHARLES E. FANCHER, JR., as President of
GENERAL DEVELOPMENT UTILITIES I INC. I a Florida corporation, on
behalf of the corporation. a P-groonally anixeared be ore or
produced as...identification.
"OFFICIAL NOTARY SEAL"
CHARLES C. HEARTSFIELD
MY CONN. EXP. 3/18/94
STATE OF FLORIDA )
) SS:
COUNTY OF XUDE" OWES)
Notary Public, State of. Fl
Commission No. AA75933
My commission expires: 3—
[Notarial Seal]
The foregoing instrument was acknowledged before me this i lra
day of December, 1993 by LONNzr-e--r0WE:a— , as �LAyoQ of
CITY OF SEBASTIAN, FLORIDA, on behalf of the city. He personally
appeared before me, is personally known to me or produced FLA.Pa.LiCvLLSE
as identification.
Notary: �'
Print Name: C1ALL6c . CA4F-T5F�(1>
Notary Public, State of Florida
Commission No. AA759336
[Notarial Seal]
mx\wuumUout• �4 Va/�
qai S*Y."
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F M
"w'�q� �tJ• o$'d*
"OFFICIAL NOTARY SEAL"
CHARLES C. HEART.SFIELD
MY COM. EXP. 3/18/94
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DEC 13 193 13:51 GENERAL DEVELOPEMENT UTILITIES P.3/27
Sebastian Highlands - List of Plats Being
7
6
6
8
6
9 through 14
9•.
6
36 & 36 A
9
7
2
9
8
71
10
6
37, 37 A through 37 0
11
7
56, 56 A through 56 L
12
7
57 & 57A
14
8
43, 43 A through 43 C
15
8
44, 44 A through 44 D
16
8
45, 45 A through 45 J
17
8
46, 46 A through 46 P
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RETURN TQ Feesc°^ rlasu s-t-o� 6&
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HeL@oueA-, / 3rq D I
This instrument prepared by or under the
supervision of:
Name: Joel K. Goldman
Address: Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
�� 1221 Brickell Avenue
is / Miami, Florida 33131-3261 RESERVED FOR CLERK
Parcel I.D.#
Grantee's Taxpayer I. D.. 42 RECORD VERIFIED
JEFFREY K. BARTON
CLERK CIRCUIT COURT
ASSIGNMENT OF EASEMENTS INDIAN RIVER CO.. FLA
I�y THIS ASSIGNMENT OF EASEMENTS ("Assignment") is made as of the
LtL
day of December, 1993 between GENERAL DEVELOPMENT UTILITIES,
INC., a Florida corporation ("Assignor"), whose address is 2601
South Bayshore Drive, Miami, Florida 33133, and CITY OF SEBASTIAN,
FLORIDA ("Assignee"), whose address is 1225 Main Street, Sebastian,
Florida 32958.
W I T N E S S E T H:
ASSIGNOR, in consideration of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration paid by Assignee to
Assignor simultaneously herewith, the receipt and sufficiency of
which are hereby acknowledged, has sold, assigned, transferred, set
over and delivered, and by these presents does sell, assign, trans-
fer, set over and deliver to Assignee, and Assignee's successors
and assigns forever, the following easements located in Indian
River County, Florida (collectively, the "Easements"), to wit:
See Exhibit "A" attached hereto, and by this
reference made a part hereof.
SUBJECT TO:
1. Ad valorem real estate taxes and assessments for the year
1993 and subsequent years.
2. Restrictions set out in the recorded plats of
subdivisions covered by the Easements.
3. Restrictions, covenants, reservations and other matters
of record (except liens, encumbrances or mortgages) without the
intention of reimposing the same.
4. All laws, ordinances, governmental regulations,
(including, but not limited to, all applicable building, zoning,
land use and environmental ordinances and regulations),
restrictions, prohibitions and other requirements imposed by
governmental authority.
5. All matters which would be disclosed by an accurate
survey of the Easements.
6. The terms, covenants and provisions contained in the
Easements.
TO HAVE AND TO HOLD unto Assignee and Assignee's successors
and assigns forever, subject, however, to the terms, covenants and
provisions contained in the Easements.
ASSIGNEE hereby accepts the foregoing Assignment subject to:
(i) the obligations of Assignor under the Easements; and (ii) all
of the terms, covenants and provisions contained in the Easements.
IN WITNESS WHEREOF, the undersigned have executed and deli-
vered this Assignment as of the day and year first above written.
(SIGNATURES CONTINUED ON NEXT PAGE]
mx�mio-wa� ioav �.xu U.M
Witnessed by:
Witness:
Print Name•((� �
Witness:_ �1nX—
Print Name:_
Witnessed by:
Witnes
Print
Witnes
Print
STATE OF FLORIDA )
:titcsae��eV) SS:
COUNTY OF BABT!,
QO
ASSIGNOR:
GENERAL DEVELOPMENT UTILITIES,
INC. a Florida corporation
BY:
Name: Charles E. nchr,;J
Title: President
[CORPORATV SEAL]
ASSIGNEE:
CITY OF BASTIAN, FLORIDA
BY:
Name:
_(a
Title:,_ M!aq P—
[SEAL]: /
-e,g7TlRyAl/-
Ci�y
The foregoing instrument was acknowledged before me this
day of December, 1993 by Charles E. Fancher, Jr., as President of
GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation, on
beha�f of the co*poration. He has personally appeared before me,
T��ersonally knowti.,to
or produced as identification_
"OFFICIAL NOTA..",Y SEAL°
CHAP.LES C. HEARTSFIEGD
MY f,Cta:. Grip. 3%18/94
STATE OF R4-vA )
) SS:
COUNTY OF SaiDrA4J Pz-1/E?}
Notary: �C
Print Name: CUAetFSC. NsS
Notary Public, State of Flor
Commission No. AA 7sg33o
My commission expires: 3--1
[Notarial Seal]
The foregoing instrument was acknowledged before me this 14T64 -
day of December, 1993 by L_awurE Pa. RoWEtL , as µA-Vo2 of CITY
OF SEBASTIAN, FLORIDA. He personally appeared before me, is
personally known to me or producedFL.i]2.tsaQ-1Seas identification.
4'll1'��'",
n o pol
.f
Notary Public, State of]
Commission No. AA7593
My commission expires: B
[Notarial Seal]
•x «V ug.
F,2,
°OFFIC tRL ir.,,*r„� SFAL„
G'3
'/t8/94
O
'/18/94
l0
rnmm�uiu„au,.vu,noin 2
4.0
0
EXHIBIT "A"
Grant of Easement by The City of
of General Development Utilities,
Records Book 995, at Page 123.
Sebastian, Florida in favor
Inc. recorded in Official
Grant of Utility Easement by Atlantic Gulf Communities
Corporation in favor of General Development Utilities, Inc.
recorded in Official Records Book 962, at Page 2854.
Grant of Utility Easement by Atlantic Gulf Communities
Corporation in favor of General Development Utilities, Inc.
recorded in Official Records Book 962, at Page 2858.
Water Line Easement by Indian River County School District in
favor of General Development Utilities, Inc. recorded in
Official Records Book 725, at Page 600.
Deed of Easement and Bill of Sale of Utility Facilities by
Indian River County School Board in favor of General
Development Utilities, Inc. recorded in Official Records Book
727, at Page 173.
Grant of Easement by Sebastian General Partnership, S.F.T. in
favor of General Development Utilities, Inc. recorded in
Official Records Book 933, at Page 2263.
All recording references are to the Public Records of Indian
River County, Florida.
/-N
CERTIFICATE
The undersigned Assistant Secretary of ATLANTIC GULF COMMUNITIES
CORPORATION, a Delaware corporation (the "Corporation"), hereby certifies as follows on
behalf of the Corporation:
The attached are true, correct and complete copies of the Articles of Incorporation,
Amendments to the Articles of Incorporation, By-laws, and Amendments to the By-laws of the
General Development Utilities, Inc., a Florida corporation, as of November 9, 1993.
IN WITNESS WHEREOF, I have affixed my name as Assistant Secretary of this
Corporation, and have affixed the corporate seal of the Corporation this 10th day of November,
1993.
C
MARCIA H. IANGL4Y, 4ssisWt Secretary
[Corporate Seal]
.-,
CERTIFICATE OF AUTHORITY
roo
The undersigned, Secretary of GENERAL DEVELOPMENT UTILITIES, INC., a Florida
corporation (the "Corporation"), hereby certifies on behalf of the Corporation that the following
resolutions were adopted by Written Consent of the Directors and Sole Shareholder of the Corporation
on December 6, 1993, and said resolutions were adopted in accordance with the Bylaws of the
Corporation and the statutes of the State of Florida, and further certifies that the resolution is in full force
and effect and has not been altered, modified or rescinded:
BE IT RESOLVED, that pursuant to that certain Purchase and Sale Agreement
(the "Contract") by and between the CITY OF SEBASTIAN, FLORIDA and the
Corporation, the Corporation be and hereby is authorized to execute the deeds, bills of
sale, assignments, affidavits, certificates, closing statements, and such other instruments
and documents as may be necessary or required by the CITY OF SEBASTIAN,
FLORIDA (collectively, the "Purchase and Sale Documents"); and
BE IT FURTHER RESOLVED, that the terms of the Contract are hereby
ratified and confirmed and that the Corporation be and hereby is authorized to sell,
convey, assign, set over, transfer, and deliver to the CITY OF SEBASTIAN, FLORIDA,
the Subject Property pursuant to the terms and provisions of, and for the consideration
provided in the Contract; and
BE IT FURTHER RESOLVED, that CHARLES E. FANCHER, JR., as
President of this Corporation and MARCIA H. LANGLEY, as Vice President and
Secretary of this Corporation, be and each of them, acting alone, is hereby authorized
and directed to negotiate the specific terms and conditions of the Purchase and Sale
Documents and to execute and deliver on behalf of this Corporation said Purchase and
Sale Documents as may be necessary or required by the CITY OF SEBASTIAN,
FLORIDA, in this regard, all of which shall contain such terms and conditions as any
such officer of this Corporation shall determine to be in the best interest of this
Corporation, with the signature of said officer to be conclusive evidence of such
determination and of the authority of said officer to execute and deliver the same.
IN WITNESS WHEREOF, I have affixed my name as Secretary of this Corporation, and have
affixed the corporate seal of the Corporation this _1\4 X� day of December, 1993.
(Corporate Seal)
r.
BILL OF SALE
GENERAL DEVELOPMENT UTILITIES, INC, a Florida corporation,
("Seller") for and in consideration of the sum of TEN AND N0/100
DOLLARS ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged from CITY
OF SEBASTIAN, FLORIDA (including its successors and assigns
"Buyer"), does hereby grant, bargain and sell to Buyer, all those
certain goods and chattels, including, without limitation, all
water production, treatment plants, storage treatment,
transmission, distribution, pumping and other water facilities,
including, without limitation, water wells and fire hydrants, and
all wastewater treatment plant, wastewater collection,
transmission, pumping and disposal facilities of every kind and
description whatsoever, including , without limitation, all trade
fixtures, leasehold improvements, lift stations, pumps, generators,
controls, collection and transmission pipes or facilities, valves,
meters, service connections, and all other water and/or wastewater
service connections, and all other water and wastewater physical
facilities, together with all machinery, equipment, vehicles,
tools, laboratory equipment and office equipment; all choses in
action, including but not limited to, warranty claims, claims for
damages, the right to sue for any past infringement or other causes
of action; subject to all applicable1lLIcensing agreements and to
all applicable copyright laws, non- -ai computer software which
is used or was used, in the course of the day-to-day operations of
the Sebastian Highlands Water and Sewer System (the "System"),
including, without limitation, billing programs and accounting
programs; and all right, title and interest in and to all inventory
(collectively, the "Personalty") owned by Seller and located on
that certain real property in Indian River County more particularly
described on Exhibit "A" attached hereto and by this reference made
a part hereof or used or held for Seller's exclusive use in
connection with the System.
TO HAVE AND TO HOLD, the Personalty unto Buyer forever.
SELLER hereby covenants with Buyer that Seller is the lawful
owner of the Personalty and that Seller has good right to sell the
same as aforesaid.
SELLER hereby warrants the title to the Personalty and will
defend the same against the lawful claims of all persons
whomsoever.
N1,
EXECUTED as of this � day of December, 1993.
Signed, sealed and delivered
in the presence of:
c�owwwq�ow.c�u,n,w
GENERAL DEVELOPMENT UTILITIES,
IN/C/, �a F ori a corporation
CHARLES E. FANCHER
President
[Corporate Seal]
STATE OF FLORIDA )
COUNTY OF ZJvtx" j? JWW
The foregoing instrument was acknowledged before me this
day of December, 1993, by CHARLES E. FANCHER, as President
GENERAL DEVELOPMENT UTILITIES, INC, a Florida corporation, on
behalf of the corporation. He personally appeared before me and is
personally known to me or produced a driver's license as
identification.
My Commission Expires:
3-rg-91f
GM\�Itwn�Gl\16IG 61.3\11/]0/9l _
- k..
me
Na. c 6Fa C s . Aef4 SFrEtD
Commission NO: AA7S9330
Notary Public State of Florida
[Notarial Seal]
x
w
s
'Kle"
OF FL.CP: �
"OFFICIAL NOWY SEAL°
CHARDS r. HF.ARTSFIELD
MY c0thl. LXP. 3/18/94
PARCEL I:
All of Tract "D" as shown on the plat of SEBASTIAN HIGHLANDS
UNIT -17, as recorded in Plat Book 8, Page 46, Public Records of
Indian River County, Florida.
PARCEL II:
A parcel of land located in the Northeast 1/4 of the Northeast
1/4;
LESS the East 20 acres thereof and a portion of the Southeast
1/4 of the Northeast 1/4 of Section 18, Township 31 south, Range
39 East, Indian River County, Florida, and being more
particularly described as follows:
Begin at the Northeast corner of said Section 18, Township 31
South, Range 39 East; thence South 89022136" West, along the
North line of the said Northeast 1/4 of section 18, a distance
of 657.45 feet to the Northwest corner of the said East 20 acres
of the Northeast 1/4 of the Northeast 1/4; thence South
00001124" West, along the West line of the said East 20 acres, a
distance of 1325.55 feet, to a point in the South line of the
said Northeast 1/4 of the Northeast 1/4; said point also being
the Northwest corner of Sebastian Highlands Unit 9, as recorded
in Plat Book 6, Page 36A, Public Records of Indian River County,
Florida; thence continue along the boundary of said plat of
Sebastian Highlands Unit 9, the following courses and distances:
thence continue South 00001124" West, a distance of 130.66 feet
to a point in a curve concave to the southwest having a radius
of 435.64 feet, the chord of which bears North 85020121" West;
thence Westerly along the arc of said curve, a distance of 70.30
feet, through a central angle of 0901414811, departing said
platted boundary;
thence North 00001124" East, a distance of 54.11 feet;
thence South 89°19102" West, a distance of 71.5 feet more or
less, to the Easterly waters edge of Schumann Lake;
thence Northwesterly, Westerly, Southerly, Southeasterly,
Southwesterly, Westerly and Southerly meander the waters edge of
Schumann Lake, a distance of 1847 feet, more or less, to the
South line of the said Southeast 1/4 of the Northeast 1/4;
thence South 89015127" West, along the South line of the said
Southeast 1/4 of the Northeast 1/4, a distance of 97.9 feet,
more or less, to the Southwest corner of the said Southeast 1/4
of the Northeast 1/4;
thence North 000.01125" West, along the West line of the said
East 1/2 of the Northeast 1/4, a distance of 2652.47 feet to the
aforesaid North line of the Northeast 1/4;
thence North 89022136" East along the said North line, a
distance of 673.15 feet to the Point of Beginning.
PARCEL III:
The East 200 feet of Tract "A", SEBASTIAN HIGHLANDS, UNIT 9,
according to the plat thereof, recorded in Plat Book 6, Page 36
and 36A, Public Records of Indian River County, Florida.
ASSIGNMENT AND ASSUMPTION OF BUSINESS RECORDS,
RABLE PERMITS, CUSTOMER DEPOSITS, DEVELOPER AG
AND SERVICE CONTRACTS.
THIS ASSIGNMENT is made and entered into this
L-1 day of
December, 1993, by and between GENERAL DEVELOPMENT UTILITIES, INC.
a Florida corporation (hereinafter referred to as "Assignor"), and
CITY OF SEBASTIAN, FLORIDA (hereinafter referred to as "Assignee").
W I T N E S S E T H
WHEREAS, Assignor has on even date herewith conveyed to
Assignee that certain real property located in Indian River County,
Florida, commonly known as the G.D.U. Sebastian Highlands Water and
Sewer System (the "System") as more particularly described in that
certain Water and Sewer System Purchase and Sale Agreement dated
October 12, 1993, between Assignor, as Seller, and Assignee, as
Purchaser (hereinafter referred to as the "Purchase and Sale
Agreement"); and
WHEREAS, pursuant to the Purchase and Sale Agreement, Assignor
agreed to assign to Assignee the following: (i) all current
customer records, supplier lists and business records as described
in Exhibit "A" attached hereto and by this reference made a part
hereof (collectively, the "Business Records"); (i i) all
transferable permits and approvals used in the operation of the
System, as listed on Exhibit "B" attached hereto and by this
reference made a part hereof (the "Permits"); (iii) all customers'
water and sewer service security deposits held by the Assignor with
respect to the System, as listed on Exhibit "C" attached hereto and
by this reference made a part hereof (the "Customer Deposits"); and
(iv) those certain developer agreements and service contracts
listed on Exhibit "D" attached hereto and by this reference made a
part hereof (the "Developer and Service Agreements").
NOW, THEREFORE, in consideration of Ten and No/100 Dollars
($10.00), and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor
and Assignee agree as follows:
1. Transfer and Assignment by Assignor.
a. Business Records. Assignor hereby sells, assigns,
transfers, sets over and delivers to Assignee all of Assignor's
right, title and interest in and to the Business Records; provided
that Assignor shall retain the right of access to the Business
Records.
b. Permits. Assignor hereby sells, assigns, transfers,
sets over and delivers to Assignee all of Assignor's right, title
and interest in and to the Permits, subject to all necessary
regulatory approvals and to all conditions, limitations or
restrictions contained therein, and the transferability thereof.
C. Customer Deposits. Assignor hereby sells, assigns,
transfers, sets over and delivers to Assignee all of Assignor's
right, title and interest in and to the Customer Deposits, subject
to the obligation of the Assignee to continue to provide utility
services to those customers for which a deposit is held.
d. Developer and Service Agreements. Assignor hereby
sells, assigns, transfers, sets over and delivers to Assignee all
of Assignor's right, title and interest in and to the Developer and
Service Agreements, subject, however, to the terms, covenants and
provisions contained therein.
2. Assumption by Assignee. Assignee shall and does hereby
assume all of the duties, obligations, liabilities and commitments
of Assignor accruing from and after the date hereof with respect
to, or arising from the Permits, Customer Deposits and Developer
and Service Agreements, and shall faithfully observe and perform
all of the terms, covenants and provisions contained in the
Permits, and Developer and Service Agreements to be observed and
performed on Assignor's part.
3. Indemnification. Assignor agrees to indemnify and hold
Assignee harmless from any and all duties, obligations, liabili-
ties, and commitments arising under the Permits and/or Developer
and Service Agreements or by virtue of this Assignment prior to the
date hereof, and Assignee agrees to indemnify and hold Assignor
harmless from any and all duties, obligations, liabilities, and
commitments arising under the Permits and/or Developer and Service
Agreements or by virtue of this Assignment, from and after the date
hereof.
4. Interpretation. This Agreement and all representations,
warranties, powers, indemnifications and rights herein contained or
resulting herefrom are binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
5. Further Assurances. The parties hereto covenant and agree
to execute all such further instruments and take all such further
action as may be reasonably required by either party to fully
effectuate the terms and provisions of this Assignment and the
transactions contemplated herein.
6. Captions. The captions of sections in this Assignment are
for convenient reference only and are not to be construed in any
way as part of this Assignment.
7. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date first written above.
Witnesses: Assignor:
Print Name •A ,
Prin Name: 501 G�IdM
ek4
Print Name: a yo �
.II. 1, 21/WN
GENERAL DEVELOPMENT UTILITIES,
INC., a Flor. a corporaticr,
By: L� 1
Name: C ES E. FANC�,
Title: President
[CORPORATE SEAL]
Assignee:
2
CITY SEBASTIAN, FLORIDA,
BY
Na 0A,
Title:
[SEAL]
Rruny,�m.D' NA�� OkAA)
C,Ty
DEC 13 193 1446 GENERAL DEVELOPEMENT UTILITIES P.3i7
EXHIBIT A
Business Records - Sebastian i hland '
Utility Business Forms - Provided 10/29/93
i
Water and Sewer Drawings (on Site)
Organizational Charts With Job Descriptions and Salarie<
GDU Standard Specifications - Attached
DER Operating Reports (on Site)
Provided 10/29/93
Vi. Raw Water Data (on Site)
Vll, Lift Station Run Times Jon Site)
V111. Engineering Reports (on S/te)
IX, Customer Billing Records - Already Provided i
X. Consumption and Billing Records 1992 & 1993 - Prov)�ed 10/20/93
X/. 1992 Income and Expense Statements - Provided 1012p/93
X11. Customer Deposits as of Date of Closing
X1I1. Footage Reports - Provided
DEC 13 '93 1446 GENERAL^DEVELOPEMENT UTILITIES _
EXHIBIT 8
P. 4/7
AoencK
Permit/Reaistration No,
Issue Date
FDEP
TP
WWOperation Permit # D031-233039
10/14/93
FDEP
WTP Construction Permit Acceptance
WC31-2026B, WC31-66743
5/16/84
FDER
WTP Construction Permit # WC -31-6674.E
4/27/83
FDER
WTP Construction Permit # WC31-20268
10/30/81
SJRWMD
Consumptive Use Permit # 2-061-0142UA{R
6/9/87
FDEP
Storage Tank Registration # 31/8629917
1
6/26/93
FDEP
Storage Tank Registration # 31/8629987
6/26/93
FDEP
Lead & Copper Sampling Plan PWS ID #311136
5/10/93
FDEP
Lead & Copper Sampling Plan Approval 1
6/23/93
DEC 13 193 14;47 GENERA
,",DEVELOPENENT UTILITIES 1..,
E_ IS�IT C
SEBASTIAN HIGHLANDS
CUSTOMER DEPOSITS AND INTEREST ACCEDED
REPORT NAME
WATER DEPOSITS REPORT
SEWER DEPOSITS REPORT
REFUND INTEREST REPORT
REPORT NUMBER
CU604RO2
CU604RO3
N/A
12710-93
12 10-93
12 r10-93
P.5/7
PAGES
25-30
15-17
1-15
DEC 13 '93 14:47 GENERA", DEVELOPENENT UTILITIES
EXHIBIT D
Developer Agreement
P.6/7
PUCLy/Develooer
Prop
L
School District of Indian River County
ll.
Reflections on the River, Inc.
XVI. Sebastian Volunteer Fire Department
I/1.
Calvary Baptist Church
Retail Store
IV.
Muller Enterprises, Inc.
River Run Condos
V.
Ms, Clare Sommers & Ms. Robert ✓ones Nursery Schogl
VL
Mrs. Jean M. Burdsall
Child Day Care Center
Vli.
Edward V. Hulse
Office Building
V!
l!. Sebastian Lakes Associates
IX. Indian River School Board Pelican Island ElementIlry School
X. James M. McLain Office Building
Xi. First Baptist Church Mission
X11. Sebastian Plumbing
XIII. City of Sebastian
Balifield
XIV. MGB Homes
Restaurant
XV. GDC n/k/a AGCC
Warehouse
XVI. Sebastian Volunteer Fire Department
Fire Station
XVII, Fellsmere Properties, Inc.
Retail Store
XV/l/.Cumberland Farms, Inc.
XIX. Lonnie R. & .Mary R. Powell
Beauty Salon
DEC 13 '93 1448 GENERAL DEVELUPEMENT UTILITIES
/!
XX. Drs. Peter & Katherine Gutierrez Dental Facility
XXI, Roy Wissel, d/b/a Wisse/ Construction
XXII. B. W. Simpkins Trust & F. A. Sheriff Trust Sebastian Plaza
XXIII. Donald E. Pinder Gift Shop
XXIV. James R. Havens Retail Store
XXV. Sebastian General Partnership, B.F. T.
XXVI. Andell, Inc. Day Care Center
XXVII.Barnett Bank of the Treasure Coast
XXVIA Trinity Lutheran Church
XX/X. Church of God, Inc.
XXX. Scotad, Inc, Office Building
XXXI. Arnold Air Conditioning, Inc.
XXX//. J & J Baker Enterprises, Inc. (Sludge Hauling)
XXXIII.Palm Bay Lawn Service & Landscaping (Ground Maintenance)
XXXIV. Master Vendor List and Pricing Agreement with PB & 5 Chemical
XXXV. Commercial Agreement Information
XXXVI. Customer's Deposit Receipt & Service Agreements & Applications
for New Residential Service
P. 7?
0
re
City of Sebastian
1225 MAIN STREET 13 SEBASTIAN, FLORIDA 32958
TELEPHONE (407) 589-5330 o FAX (407) 589-5570
STATE OF FLORIDA )
COUNTY OF INDIAN RIVER )
CITY OF SEBASTIAN )
I, Kathryn M. O'Halloran, City Clerk of the City of
Sebastian, Indian River County, Florida, do hereby certify that
the attached are true and correct copies of City of Sebastian
Resolution No. R-93-63, City of Sebastian/General Development
Utilities, Inc. Water and Wastewater Purchase and Sale Agreement,
and Public Briefing Document Chapter 180.301 prepared by Hartman
and Associates.
IN WITNESS WHEREOF, I hereunto set my hand and affix the
Seal of the City of Sebastian, Florida, this 10th day of December,
A.D., 1993.
Kathr M. O'Halloran, CMC/AAE
City Clerk
RESOLUTION NO. R-93-63
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, PROVIDING FOR CERTAIN DETERMINATIONS,
FINDINGS, AND STATEMENTS AS REQUIRED IN SECTION
180.301, FLORIDA STATUTES; RATIFYING THE CITY OF
SEBASTIAN, FLORIDA/GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM PURCHASE AND SALE AGREEMENT AS
SIGNED BY THE MAYOR AND CITY CLERK, A COPY OF WHICH IS
ATTACHED TO THIS RESOLUTION AS EXHIBIT "A"; PROVIDING
FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN
CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Section 2(b), Article VIII, Florida Constitution,
and the Municipal Home Rule Powers Act, Chapter 166, Florida
Statutes, authorize the City to conduct municipal government,
perform municipal functions, render municipal services and
exercise any power for municipal purposes, except when expressly
prohibited by law; and
WHEREAS, pursuant to its governmental powers granted
pursuant to Chapters 163, 166 and 180, Florida Statutes, and
other applicable laws, the City is authorized to preserve and
enhance present advantages, encourage the most appropriate use of
land, water and resources, consistent with the public interest,
facilities and adequate and efficient provision of water and
wastewater facilities, and conserve, develop, utilize, and
protect natural resources; and
WHEREAS, neither general law nor special act prohibits the
City from acquiring or operating water and wastewater utility
facilities; and
WHEREAS, General Development Utilities, Inc. ("GDU") is the
owner of a water and wastewater system know as "Sebastian
Highlands Water and Wastewater System" (the "System") located
within the boundaries of Indian River County, Florida; and
WHEREAS, GDU desires to sell the System to the City and the
City desires to purchase the System from GDU; and
WHEREAS, the City has examined the assets of the System,
has examined the System's existing financial structure, has
examined the long-range needs and goals of the City relative to
the provision of water and sewer service to the City's present
and future citizens, and has determined that the signing of a
purchase and sale agreement for the acquisition of the System is
in the public interest; and
WHEREAS, the City has successfully negotiated a purchase
and sale agreement with GDU calling for the purchase and sale of
the System to the City; and
WHEREAS, in contemplation of the acquisition of the System,
the City authorized its engineering consultants, Hartman &
Associates, Inc., to prepare a briefing document to comply with
Section 180.301, Florida Statutes (the "Briefing Document"); and
WHEREAS, the Briefing Document has been submitted to the
City Council for review pursuant to Section 180.301, Florida
Statutes; and
WHEREAS, the City has scheduled, duly noticed and held
public hearings pursuant to the requirements of Section 180.301,
Florida Statutes.
2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that:
SECTION 1. DETERMINATIONS. The City Council has reviewed
and considered the acquisition of the System, as evaluated in the
Briefing Document and in other pertinent information submitted to
the City, and in doing so has considered the following:
(a) GDU's most recent available income and expense
statement for the System;
(b) GDU's most recent available balance sheet for the
System, listing assets and liabilities and clearly
showing the amount of contributions -in -aid -of -
construction and the accumulated depreciation thereon;
(c) A statement of GDU's existing rate base for regulatory
purposes as it relates to the System;
(d) The physical condition of the System;
(e) The reasonableness of the purchase price and terms;
(f) The impacts of the purchase on utility customers, both
positive and negative;
(g) Any required additional investment and the ability and
willingness of the City to make that investment;
(h) Alternatives to the purchase and the potential impact
on utility customers if the purchase is not made; and
(i) The ability of the City to provide and maintain high-
quality and cost-effective utility service.
The City Council's determinations and findings regarding the
items listed above are set forth in the Briefing Document, which
is hereby adopted and incorporated into this Resolution. This
Resolution and the Briefing Document are intended and declared to
be the statement required under Section 180.301, Florida
Statutes, demonstrating that the purchase of the System is in the
public interest. Furthermore, the Briefing Document contains a
3
WHEREAS, General Development Utilities, Inc. ("GDU") is the
owner of a water and wastewater system know as "Sebastian
Highlands Water and Wastewater System" (the "System") located
within the boundaries of Indian River County, Florida; and
WHEREAS, GDU desires to sell the System to the City and the
City desires to purchase the System from GDU; and
WHEREAS, the City has examined the assets of the System,
has examined the System's existing financial structure, has
examined the long-range needs and goals of the City relative to
the provision of water and sewer service to the City's present
and future citizens, and has determined that the signing of a
purchase and sale agreement for the acquisition of the System is
in the public interest; and
WHEREAS, the City has successfully negotiated a purchase
and sale agreement with GDU calling for the purchase and sale of
the System to the City; and
WHEREAS, in contemplation of the acquisition of the System,
the City authorized its engineering consultants, Hartman &
Associates, Inc., to prepare a briefing document to comply with
Section 180.301, Florida Statutes (the "Briefing Document"); and
WHEREAS, the Briefing Document has been submitted to the
City Council for review pursuant to Section 180.301, Florida
Statutes; and
WHEREAS, the City has scheduled, duly noticed and held
public hearings pursuant to the requirements of Section 180.301,
Florida Statutes.
V,
summary of the City's experience in water and wastewater utility
operation and demonstrates that the City has the financial
ability to provide water and wastewater service. Based upon the
Briefing Document and other evidence and testimony submitted and
considered at the public hearings on September 15, 1993 and
September 22, 1993, the City Council hereby determines and finds
that it is in the public interest for the City to purchase the
System as contemplated in the Briefing Document.
SECTION 2. RATIFICATION OF THE SIGNING OF THE PURCHASE AND
SALE AGREEMENT. The City Council has reviewed and considered the
acquisition of the System owned by GDU and has also analyzed the
City of Sebastian, Florida/General Development Utilities, Inc.
Water and Wastewater System Purchase and Sale Agreement (the
"Agreement"), a copy of which is attached to and incorporated in
this Resolution as Exhibit "A". The City Council hereby ratifies
the Agreement, as signed by the Mayor and City Clerk on behalf of
the City. The City Council also authorizes its staff and
consultants to take all actions necessary to complete the
transaction contemplated by the Agreement, and further authorizes
the Mayor and City Clerk to sign all necessary documents, before,
at and after the closing of the purchase contemplated by the
Agreement in order to complete the purchase and sale.
SECTION 3. CONFLICT. All resolutions or parts of
resolutions in conflict herewith are hereby repealed.
SECTION 4. SEVERABILITY. In the event a court of competent
jurisdiction shall hold or determine that any part of this
Resolution is invalid or unconstitutional, the remainder of the
4
Resolution shall not be affected and it shall be presumed that
the City Council of the City of Sebastian did not intend to enact
such invalid or unconstitutional provision. It shall further be
assumed that the City Council would have enacted the remainder of
this Resolution without such invalid and unconstitutional
provision, thereby causing said remainder to remain in full force
and effect.
SECTION 5. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
The foregoing Resolution was moved for adoption by
Councilmember C"Izd The motion was
seconded by Councilmember and, upon
being put into a vote, the vote was as follows:
Mayor Lonnie R. Powell
Vice -Mayor Frank Oberbeck
Councilmember Carolyn Corum
Councilmember Norma J. Damp
Councilmember Robert Freeland
The Mayor thereupon declared this Resolution duly passed and
City Clerk
(SEAL)
Approv-A,'as to orm and Content:
Charles(/Ian Nash, City Attorney
",
t�
The Mayor thereupon declared this Resolution duly passed and
City Clerk
(SEAL)
Approv-A,'as to orm and Content:
Charles(/Ian Nash, City Attorney
CITY OF SEBASTIAN, FLORIDA/
GENERAL DEVELOPMENT UTILITIES, TNTC.
WATER AND SEWER SYSTEM
PURCHASE AND SALE AGREEMENT
nn�� HII? AGREEMENT is made and entered into this L— day of
yc lJ �•� , 1993, by and between the CITY OF SEBASTIAN, FLORIDA
("CITY"), and GENERAL DEVELOPMENT UTILITIES, INC., a corporation
authorized to do business in the State of Florida ("UTILITY").
RECITALS
1. UTILITY is the owner of a water production, storage,
treatment, transmission, and distribution system, and a wastewater
treatment, transmission, collection and effluent disposal system
(hereinafter referred to collectively as the "Sebastian Water and
Wastewater System" or the "System") known as the Sebastian
Highlands Water and Sewer System located primarily within the boun-
daries of the CITY OF SEBASTIAN, FLORIDA.
2. Pursuant to the governmental powers provided in Chapters
163, 166, and 180, Florida Statutes, and other applicable laws,
CITY is authorized to preserve and enhance present advantages,
encourage the most appropriate use of land, water and resources,
consistent with public interest, facilitate the adequate and
efficient provision of water and sewerage facilities, and conserve,
develop, utilize, and protect natural resources within its
jurisdiction.
3. UTILITY agrees to sell the System to CITY.
4. CITY has examined UTILITY's Water and Wastewater System
Assets, has examined its existing financial structure, has examined
the long-range needs and goals of CITY relative to the provision of
water and wastewater service to its present and future citizens,
and has determined that the execution of a purchase and sale
agreement for the acquisition of the Water and Wastewater System
Assets is in the public interest.
5. CITY desires to acquire the System upon the terms and
conditions hereinafter set forth in this Agreement.
ACCORDINGLY, in consideration of the above Recitals and bene-
fits to be derived from the mutual observation of the covenants
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties, the parties agree as follows:
1
t
SECTION 1. RECITALS. The above Recitals are true and cor-
rect, and form a material part of this Agreement.
SECTION 2. PURCHASE AND SALE OF WATER AND WASTEWATER SYSTEM.
UTILITY agrees to sell and CITY agrees to buy the complete System,
consisting of all real, personal and mixed property used or held
for use in connection with the System, hereinafter referred to as
the "Purchased Assets" or the "Water and Wastewater System Assets"
or the "System." The Purchased Assets shall not include any cash
derived from monthly rates of UTILITY received by UTILITY, except
as set forth in sections 3 and 11 hereof.
SECTION 3. PURCHASED ASSETS. On the Closing Date, as defined
below, UTILITY shall sell, assign, transfer, convey and deliver to
CITY, and CITY shall purchase, accept and pay for all of the right,
title and interest, in and to the following property and assets:
3_1. Real Property. All real property (the "Property"),
owned by UTILITY in fee simple, as described in Exhibit "3.1"
attached hereto and made a part hereof, whereupon all water
production, storage, treatment, transmission, and distribution
facilities and wastewater treatment plant, wells, pumping stations,
effluent disposal areas and all other water and wastewater service
facilities are located.
3_2. Plant and Other Facilities. All right, title and
interest of UTILITY in and to the following assets owned by
UTILITY: all water production, treatment plant, storage,
treatment, transmission, distribution, pumping, and other water
facilities, including, without limitation, water wells and fire
hydrants, and all wastewater treatment plant, wastewater
collection, transmission, pumping, and disposal facilities of every
kind and description whatsoever including, without limitation, all
trade fixtures, leasehold improvements, lift stations, pumps,
generators, controls, collection and transmission pipes or
facilities, valves, meters, service connections, and all other
water and/or wastewater service connections, and all other water
and wastewater physical facilities and property installations in
use in connection with the operation of the System by UTILITY.
3_3. Machinery and Equipment. All machinery, equipment
vehicles, tools (other than non -motorized hand tools), laboratory
equipment, office equipment and other personal property (other than
inventory as described in Paragraph 3.13), owned by UTILITY located
on the Property or utilized by UTILITY exclusively in the operation
of the System, including, but not limited to, those items more
particularly described in Exhibit 113.3" attached hereto and
incorporated into this Agreement.
3_4. Other Rights. All rights, privileges, easements,
licenses, prescriptive rights, rights -of -ways, and rights to use
public and private roads, highways, streets, and other areas owned
by UTILITY for the construction, reconstruction, maintenance and
operation of the System of UTILITY and the Purchased Assets
2
.. .WN
(collectively referred to as the "Easements"). The Easements are
more particularly described in Exhibit "3.4" attached hereto and
incorporated in this Agreement. CITY and UTILITY acknowledge and
agree that, as additional consideration for UTILITY entering into
this Agreement, CITY shall convey to UTILITY within five (5) days
following the execution of this Agreement by both parties hereto,
those certain Easements set forth and described in Exhibit 113.4"
attached hereto and incorporated in this Agreement. Such
conveyance shall be a conveyance by the CITY of all of its right,
title and interest in those certain Easements, collectively
referred to herein as the "CITY Easements". The CITY Easements
shall be signed by authorized representatives of CITY and delivered
to UTILITY in the form attached to this Agreement as Exhibit 113.4"
and UTILITY shall be entitled to immediately record the CITY
Easements; at its expense, in the Public Records of Indian River
County, upon receipt thereof. Upon closing, UTILITY shall reconvey
to CITY the CITY Easements; provided, however, UTILITY shall not be
required to reconvey to CITY the CITY Easements if the transaction
contemplated in this Agreement fails to close for any reason other
than fault on the part of UTILITY.
3_5. Customer Records.
UTILITY shall provide CITY with all records associated with
its current customers of the System, including customer files
containing information such as service applications and
correspondence, and all billing information, and all information
pertaining to billing of customers, including names, addresses,
account numbers and payment history contained in the UTILITY's
master files.
3_6. Business Records.
All current business records of UTILITY as described in
Exhibit 113.6" attached to this Agreement and incorporated by
reference herein. UTILITY may make and retain copies of all
records delivered to CITY pursuant to this Agreement, at its
expense, before transferring the original or (if the original is
not available, copies of the records) to CITY. CITY agrees that
UTILITY may have reasonable access after closing to all records
delivered pursuant - to this Agreement. The provisions of this
paragraph shall survive the closing. In addition, UTILITY shall
deliver to CITY all as -built surveys, water and sewer design
plants, plats, engineering and other drawings, designs, blue-
prints, plans and specifications for the System to CITY.
3_7. Permits and Approvals. Subject to all necessary
regulatory approvals and to all conditions, limitations or
restrictions contained therein, and the transferability thereof,
all permits and other governmental authorizations and approvals
necessary to operate and maintain the System in accordance with all
governmental requirements, as described in Exhibit 113.7" attached
hereto and incorporated by reference herein. UTILITY shall, at its
expense, be responsible for renewing any operating permits and any
,-• .
other permits essential to the operation of the System which may
have expired or will expire prior to the transfer of the System to
CITY. UTILITY shall also be responsible for correcting any
deficiencies, at its expense (provided, however, that in no event
shall UTILITY be required to bring suit or expend any sum in excess
of $50,000, in the aggregate, to cure such deficiencies), which are
specifically documented by any regulatory agency prior to the date
on which the System is to be transferred to CITY. CITY agrees to
sign all forms required by governmental agencies to transfer the
permits and approvals from UTILITY to CITY.
3_8. Choses in Action. All choses in action pertaining
to the System or the Purchased Assets, including, but .not limited
to, warranty claims, claims for damages, the right to sue for any
past infringement, or other cause of action.
3_9. Customer Deposits. Cash to be paid by cashier's
check or wire transfer in an amount which represents the customers'
water and sewer service security deposits acid accrued interest held
by UTILITY. UTILITY shall provide CITY with a detailed written
description of each customer deposit and any interest accrued
thereon, including the name of the customer, the account number for
the customer, the date on which the deposit was received by UTILITY
from the customer, the amount of interest accrued on each deposit,
the amount of any additional deposits received from the customer
and the date such deposit was received. In the event UTILITY
provides any inaccurate or erroneous information concerning the
customer deposits to CITY, UTILITY shall defend, indemnify and hold
CITY harmless from any claims, actions, expenses or damages,
including costs and reasonable attorneys' fees at trial and/or
appeal, to which CITY may be exposed in the future as a result of
UTILITY providing such inaccurate or erroneous information to CITY.
In consideration for the transfer by UTILITY of these customers'
deposits to CITY, CITY agrees to continue to provide utility
services to those customer for which a deposit is held and, to the
extent consistent with §768.28, Florida Statutes, to indemnify and
hold UTILITY harmless for any claims, actions, expenses or damages,
including costs and reasonable attorneys' fees at trial and/or
appeal, to which UTILITY may be exposed in the future as a result
of the transfer of such customer deposits to CITY. This provision
shall survive closing.
3.10. Unbilled Revenue. Unless otherwise agreed by
UTILITY and CITY, there shall be no unbilled Revenues paid by CITY
because UTILITY shall bill each customer through the Closing Date.
3.11. Contracts and Avreements. UTILITY agrees to
assign to CITY, and CITY agrees to assume, all of UTILITY's right,
title and interest in and to those certain contracts and agreements
listed in Exhibit 113.11" attached to and incorporated in this
Agreement. CITY shall not be obligated to assume any contracts and
agreements except only those listed in Exhibit 113.11".
4
3.12. Computer Software. Subject to all applicable
licensing agreements and to all applicable copyright laws, non-
proprietary computer software which is used or was used, in the
course of the day to day operations of UTILITY for the System,
including, without limitation, billing programs and accounting
programs, except any computer software that CITY does not desire to
receive or to sub -license. Any license assignment fees payable to
the licensor with respect to any computer software that CITY
expressly elects to receive assignment for, shall be paid by CITY.
3.13. Inventory. All right, title and interest of
UTILITY in and to all inventory specifically described in Exhibit
"3.13" attached hereto and made a part of this Agreement. For
purposes of this Agreement, the term "inventory" shall include
items such as hand tools, parts, chemicals, operating supplies,
pipes, nuts, bolts, fittings, screws, meters and meter boxes.
Exhibit 113.13" is separated into two parts, Part A and Part B for
purposes of Paragraph 11.1(7) of this Agreement. CITY, at its
expense, shall conduct a physical inventory of all items of
inventory as soon as practical after the signing of this Agreement
by the parties hereto. UTILITY shall cooperate and make available
to CITY and its representatives all items of inventory in order to
facilitate the conducting of the physical inventory by CITY.
SECTION 4. ADDITIONAL RESPONSIBILITIES OF UTILITY. UTILITY
shall provide CITY with up to eighty (80) person hours of general
support services for a period commencing upon the signing of this
Agreement by the parties hereto and ending on the date that is
sixty (60) days after the Closing Date, on an as -needed basis. If
all time is not utilized by CITY within such period, no future
obligation with respect thereto shall exist on behalf of UTILITY.
In addition, UTILITY agrees to assist CITY in aid of transition
following the closing by providing, at the request of CITY,
assistance in billing services and transfer of files at no expense
to CITY, other than any out-of-pocket costs. CITY shall, in making
requests pursuant to this Section 4, avoid any unnecessary
disruption of the normal business operations of UTILITY. The
provisions of this Section shall survive the closing.
SECTION 5. PURCHASE PRICE AND PAYMENT. CITY agrees to pay to
UTILITY on the Closing Date, and UTILITY agrees to accept as the
complete and full Purchase Price for the System, a total Purchase
Price in the amount of THREE MILLION SIX HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($3,650,000), subject to any adjustments provided
hereinafter. Said Purchase Price shall be paid at Closing in
federal or other immediately available funds by wire transfer to a
bank and bank account designated by UTILITY. Prior to Closing
UTILITY shall deliver wiring instructions to CITY.
SECTION 6. STATUS OF TITLE. Within twenty (20) days
following the signing of this Agreement by UTILITY and CITY,
UTILITY shall deliver to CITY's attorney an updated title
commitment (the "Commitment") for an Owner's Title Insurance Policy
issued by First American Title Insurance Company in favor of CITY
5
insuring the fee simple title to the Property listed in Exhibit
"3.1". UTILITY shall provide CITY with an Owner's Title Insurance
Policy which is an Owner's ALTA Form B Marketability Policy in
favor of CITY in the amount of THREE MILLION SIX HUNDRED FIFTY
THOUSAND AND 00/100 DOLLARS ($3,650,000). UTILITY shall bear the
cost of the title insurance policy, including all costs associated
with procuring the Commitment.
6_1. Exceptions to Title. The Commitment shall show
UTILITY to be vested with fee simple title to the Property shown on
Exhibit "3.1" subject to the following (the "Permitted
Exceptions"):
(1) Ad valorem real estate taxes and assessments
for the year 1993 and subsequent years;
(2) Restrictions set out in the recorded plats of
subdivisions covered by the System;
(3) Easements for utilities and drainage set out in
such recorded plats of subdivisions; provided, however, that none
of the restrictions or easements set out in such recorded plats of
subdivisions shall prevent, hinder or restrict the present use of
the Property;
(4) Restrictions of record (except liens, encum-
brances, or mortgages) that do not impair, restrict, or inhibit the
present use of or improvement to the property as permitted by
applicable zoning and land use regulations presently in effect and
that are not coupled with a forfeiture or reversionary provision;
(5) All laws, ordinances, and governmental regula-
tions, including, but not limited to, all applicable building,
zoning, land use and environmental ordinances, regulations,
restrictions, prohibitions and other requirements, none of which
will prevent or hinder the present use of the Property; and
(6) All matters which would be disclosed by an
accurate survey of the Property, unless a survey is provided to
UTILITY in a form acceptable to the title insurer in accordance
with recognized standards for surveys in connection with the
issuance of an Owner's Title Insurance Policy.
6_2. Status of Title. If the status of title shown on
said Title Insurance Commitment does not reflect the status of
title as herein set out, then, in that event, upon written noti-
fication thereof to UTILITY which notice shall be given by CITY
within twenty (20) days after receipt of said commitment, UTILITY
agrees to use all due diligence to perfect title and shall have a
period of twenty (20) days from notification of such defects within
which to do so. If CITY shall fail to notify UTILITY within the
aforesaid twenty (20) days, CITY shall, for the purposes of this
Agreement, be deemed to have accepted the status of title as set
forth in the Commitment. In the event that defects are specified
2
and UTILITY, after exercising all due diligence, cannot clear same
within the time provided in the preceding sentence, then, in that
event, CITY shall have the right to purchase the Property in its
then existing condition of title, or to rescind and terminate this
Agreement without liability by any party to the other(s). Although
UTILITY shall use its reasonable efforts to cause any defects to be
cured prior to the Closing Date, in no event shall UTILITY be
required to bring suit or to expend any sum in excess of $50,000 in
the aggregate to cure title defects, exclusive of mortgages against
the Property which are in a liquidated amount or which UTILITY has
the obligation to discharge on or before the Closing Date under the
terms of this Agreement. Notice of such election shall be given by
CITY to UTILITY, in writing, by either registered or certified
mail, within the time herein prescribed.
SECTION 7. SURVEY. CITY shall have the option, at its ex-
pense, to prepare and provide a current survey of all the Property
set out in Exhibit "3.1" prepared by a Florida licensed surveyor in
accordance with applicable law, which survey will be prepared in
accordance with, and certified to UTILITY, CITY, UTILITY's and
CITY's attorneys and the title insurer in accordance with the
minimum detail standards adopted by the Florida Society of
Professional Land Surveyors. Any defect reflected on such survey
including, but not limited to, encroachments of improvements across
a boundary line or onto a utility strip, evidence of overlaps along
a property line, violation of restrictions, set back lines,
possession inconsistent with the Property boundaries or any other
such defect, shall be treated as a title defect under Subsection
6.2. above. CITY shall have twenty (20) days after receipt of said
survey to furnish notice to UTILITY of any title defect shown on
the survey which does not conform to the status of title described
in Section 6 of this Agreement. If CITY shall fail to notify
UTILITY within the aforesaid twenty (20) days, CITY shall be deemed
to have accepted the status of title shown on the survey.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF UTILITY. To
induce CITY to enter into this Agreement, UTILITY represents and
warrants that, as of the Closing Date:
8_1. Organization, Standing And Power.. UTILITY is a
corporation, duly organized, validly existing, and in good standing
under the laws of the state of its formation, and is authorized to
do business in the State of Florida. UTILITY has all requisite
power and authority to own and lease its properties and the Water
and Wastewater System Assets, and to conduct its business as it is
currently being conducted.
8_2. Authority for Agreement. UTILITY has the power and
authority to execute and deliver this Agreement and to carry out
its obligations hereunder. This Agreement has been duly authorized
by all action required to be taken by UTILITY has been duly
executed and delivered by UTILITY and constitutes a valid and
legally binding obligation of UTILITY, enforceable in accordance
with its terms.
•MAk 14M41
8_3. Good and Marketable Title. Subject to the Per-
mitted Exceptions, UTILITY has good and marketable title to the
Purchased Assets. Notwithstanding anything contained herein to the
contrary, the Property shown on Exhibit "3.4" as easement parcels
are not subject to the fee simple ownership requirements as set
forth in Subsection 6 hereof. UTILITY shall transfer, convey and
assign to CITY at Closing an enforceable easement interest for each
of the easement parcels shown on Exhibit 113.4" so that the present
use of the easement parcels may be continued by CITY for the
operation of the System. The easement interests shown on Exhibits
"3.4" conveyed to CITY shall not be subordinate to any superior
interests which could result in CITY losing the right to use the
easement parcel for utility purposes. Any such superior interests
shall be -deemed a title defect under Subsection 6.2 hereof and
shall be cured by UTILITY as set forth in that Subsection. At
Closing, UTILITY shall assign to CITY all of its easement interests
in the Property regardless of whether such easement is listed on
Exhibit "3.49.
z
8_4. No Liens or Encumbrances. Except as otherwise
specifically set forth herein or as may be released prior to the
Closing Date, there are no liens, claims or encumbrances of any
type or nature upon or against the Purchased Assets including, but
not limited to, financing statements or security instruments filed
under the Uniform Commercial Code either in the County where the
land is located or with the Florida Secretary of State.
8_5. Litigation. There are no actions, suits, or
proceedings at law or in equity, pending against UTILITY before any
federal, state, municipal or other court, administrative or
governmental agency or instrumentality, domestic or foreign, which
affect the System or any of the Purchased Assets or UTILITY's right
and ability to make and perform this Agreement; nor is UTILITY
aware of any facts which to its knowledge are likely to result in
any such action, suit or proceeding. The UTILITY is not in default
with respect to any order or decree of any court or of any
administrative or governmental agency or instrumentality affecting
the System or any of the Purchased Assets. UTILITY agrees and
warrants that it shall have a continuing duty to disclose up to and
including the Closing Date the existence and nature of all pending
judicial or administrative suits, actions, proceedings, and orders
which in any way relate to the operation of the System. Any such
matters now known to UTILITY shall be initially disclosed within
ten (10) days following execution of this Agreement, and UTILITY
agrees to notify CITY of any new actions, suits or proceedings
within ten (10) days after UTILITY receives notice thereof.
8_6. New Agreements. UTILITY shall not enter into any
extension, developers' agreement, agreement concerning the opera-
tion of the Water and Wastewater System, agreement concerning water
and/or wastewater service capacity, or cause any agreement to be
modified after the date of execution of this Agreement without the
prior written approval of CITY, which approval shall not be
8
OMWA i-,
unreasonably withheld. Notwithstanding anything to the contrary
set forth in this paragraph 8.6, UTILITY need not obtain CITY's
approval to enter into service agreements with individuals that do
not commit in excess of five (5) equivalent residential connections
of water or wastewater service capacity.
8_7. Agreements for Construction. With respect to any
outstanding agreements for construction under which UTILITY has
previously received cash deposits or cash contributions in exchange
for UTILITY's willingness to authorize the planning, permitting,
construction, installation or extension of the water and/or
wastewater system located in Sebastian, UTILITY has fully
discharged all obligations on its part for such planning,
permitting, construction, installation or extension, and UTILITY
has no further obligations, liabilities or expenses for the future
planning, permitting, construction, installation or extension of
said system under said agreements.
8_8. Leases. Except as may be 'listed in Exhibit 113.11"
hereof, none of the Purchased Assets are subject to any interest of
any lessor or lessee and will not be so subject as of the Closing
Date.
8_9. No Contracts in Default. UTILITY is not aware of
any defaults of any parties to any agreements set forth or listed
in any of the Exhibits annexed to this Agreement.
8.10. No Governmental Violations. UTILITY is not aware
and has not been notified of the existence of any violations of any
governmental rules, regulations, permitting conditions or other
governmental requirements applicable to the ownership, maintenance
or operation of the System.
8.11. No Record Violations. The use of the System on
the property set out in Exhibits 113.1" and 113.4" is consistent with
and does not violate any restrictions or conditions of record.
8.12. Absence of Changes. After the date of execution
of this Agreement, UTILITY shall not:
(1) undergo any change in its condition of
properties, assets, liabilities, business or operations other than
changes in the ordinary course of business which have not been,
either in any case or in the aggregate, materially adverse to the
operation of the System;
(2) acquire or dispose of any of the System's
assets or properties of material value (having a value in excess of
$2,000), except in the ordinary course of business or with the
consent of CITY, which shall not be unreasonably withheld;
(3) subject to available administrative remedies
pursuant to Chapter 120, Florida Statutes, or any administrative or
judicial procedures or proceedings applicable to particular
9
permits, or intentionally fail to comply with all of the System
permit requirements;
(4) fail to seek or obtain any permit extensions or
renewals reasonably necessary to insure that all permits related to
the System are valid, extended, or in the process of being
extended, as of the Closing Date.
8.13. Disclosure. No representation or warranty made by
UTILITY, to the best of UTILITY's knowledge, in this Agreement
contains or will contain any untrue statement of material facts or
omits or will omit to state any material fact required to make the
statements herein contained not misleading.
•8.14. Survival of Covenants. UTILITY agrees that its
representations and warranties set forth herein are true and
correct as of the date of the execution hereof, shall be true 'and
correct at the time of Closing, and shall survive the Closing for
a period of two (2) years.
8.15. FIRPTA. UTILITY is not a "foreign person" within
the meaning of the United States tax laws and to which reference is
made in Section 1445(b)(2) of the Internal Revenue Code of 1986, as
amended. On the Closing Date, UTILITY shall deliver to CITY a
certificate to such effect.
SECTION 9. CONDUCT PENDING CLOSING. UTILITY covenants that
pending the closing:
9_1. Business Conduct. Except as otherwise consented to
in writing by CITY, which shall not be unreasonably withheld, for
the period beginning on the date of execution of this Agreement and
ending on the Closing Date, UTILITY shall:
(1) operate the System in, and only in, the usual,
regular and ordinary course and nevertheless comply with and uphold
all applicable governmental requirements and laws;
(2) maintain all of the System's- material
structures, equipment. and other tangible personal property in good
repair, order and condition, except for depletion, depreciation,
ordinary wear and tear and damage by unavoidable casualty;
(3) keep in full force and effect insurance com-
parable in amount and scope of coverage to insurance now carried by
it for the System;
(4) perform in all material respects all of its
obligations under agreements, contracts and instruments relating to
or affecting the System's properties, assets and operation;
(5) maintain its books of account and records as to
the System in the usual, regular and ordinary manner;
im
(6) subject to available administrative remedies
pursuant to Chapter 120, Florida Statutes, or any administrative or
judicial proceeding or proceeding applicable to particular permits,
comply in all material respects with all statutes, laws,
ordinances, rules and regulations applicable to it and to the
operation of the System;
(7) promptly advise CITY, in writing, of any
material adverse change in the operation of System; and
(8) not enter into any transaction, including,
without limitation, the purchase, sale or exchange of property, the
value of which exceeds $2,000, which relates to the System except
in furtherance of this Agreement with the UTILITY, or the rendering
of any service to UTILITY, except in the ordinary course of and
pursuant to the reasonable requirements of the business of UTILITY.
9_2. Risk of Loss. UTILITY shall bear the risk of loss,
damage or destruction of the Purchased Assets by fire or other
casualty prior to Closing Date. If any material portion of the
Purchased Assets is damaged by fire, "Act of God" or other casualty
prior to the Closing Date, CITY shall have the option of (1)
closing and accepting the Purchased Assets "as is", without
reduction of the Purchase Price, together with UTILITY's assignment
to CITY of all rights under UTILITY's insurance policies and all of
the insurance proceeds, if any, relating thereto, but without any
further claim by CITY against UTILITY; or (2) cancelling this
Agreement in which event the parties shall be released from all
further obligations to each other. If any immaterial portion of
the Purchased Assets is so damaged, UTILITY shall either (1) repair
or replace same, or (2) assign UTILITY's insurance proceeds
covering same to CITY at closing (or if there are no adequate
proceeds available, UTILITY shall credit CITY at closing for the
reasonable uninsured value of the damaged property).
9_3. No Encumbrances. Except as otherwise permitted in
this Agreement, from and after the date of the execution of this
Agreement, UTILITY shall not, without the prior written consent of
CITY, which shall not be unreasonably withheld, dispose of or
encumber any of the Purchased Assets.
9_4 Access to Records. At all times, UTILITY will coop-
erate by opening records and by providing access; upon prior
notice, to records and facilities to CITY and CITY's
representatives to assist in acquainting CITY'S operating and
administrative personnel in the operation of the System; provided
that no such inspection shall materially interfere with the
operation of the System.
9_5. Performance of Closing Conditions. UTILITY shall
perform all of the conditions to closing which should be performed
by UTILITY prior to closing as provided herein.
11
100�*,
9_6. Insurance. Prior to closing, UTILITY shall
maintain existing fire and extended coverage insurance to cover the
cost of any repairs to the Purchased Assets that may be
necessitated by casualty damage. CITY shall not be obligated to
assume or continue to maintain any policy of insurance that was
originally obtained by UTILITY after the Closing Date.
9_7. Examination and Inspection. UTILITY will permit
examination by CITY'S authorized representatives of all existing
contractual obligations, physical systems, assets, real estate,
rights-of-way, easements and inventories utilized by UTILITY in
connection with the System. Such facilities will be properly
maintained by UTILITY within the custom and usage of the industry
up until the Closing Date and shall not otherwise utilize any items
of inventory other than for the operation of the System for the
period ending on the Closing Date.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF CITY. To
induce UTILITY to enter into this Agreement, CITY represents and
warrants as follows:
10.1. Organization. Standing and Power of CITY. CITY is
a municipal corporation duly organized and validly existing under
the laws of the State of Florida and has all requisite municipal
power and authority to enter into this Agreement, and to carry out
and perform the terms and provisions of this Agreement.
10.2. Authority for Agreement. CITY has the authority
and power to execute and deliver this Agreement and to carry out
its obligations hereunder. This Agreement has been duly authorized
by all municipal action required to be taken by CITY, including
holding all required public hearings, has been duly executed and
delivered by CITY, and constitutes a valid and legally binding
obligation of CITY, enforceable in accordance with its terms.
10.3. Disclosure. No representation or warranty made by
CITY, to the best of CITY's knowledge, in this Agreement contains
or will contain any untrue statement of material facts or omits or
will omit to state any material fact required to make the
statements herein contained not misleading.
10.4. Service. Upon closing the transaction
contemplated in this Agreement, CITY shall, to the extent allowable
by law, continue to provide existing: (i) water and sewer service
to the UTILITY's customers consistent with or superior to the
services currently being provided by UTILITY to its customers; and
(ii) water and wastewater service to Atlantic Gulf Communities
Corporation, its successors and/or assigns ("Atlantic Gulf"), and
properties owned by Atlantic Gulf, in a uniform and non-
discriminatory manner with other property and property owners
served by CITY.
12
10.5. Performance of Closing conditions. CITY shall
perform all of the conditions to closing which should be performed
by CITY prior to the Closing Date as provided herein.
10.6. Survival of Covenants. CITY agrees that its
representation and warranties set forth herein are true and correct
as of the date of the execution hereof, shall be true and correct
at the time of the Closing Date, but shall only survive for two (2)
years following the Closing Date.
SECTION 11. ADJUSTMENTS AND PRORATIONS.
11.1. Adjustments. At the time of closing, the parties
covenant and agree that the following adjustments to the Purchase
Price shall be made:
(1) Real and personal property taxes on all real
and personal property which is being conveyed by UTILITY to CITY,
shall be prorated as of the Closing Date based on the most current
tax bills available, with the understanding that if tax bills for
the current year are not available, CITY will assume responsibility
for all taxes for the current year but will be entitled to a
reproration when available.
(2) All rates, fees and charges for water and sewer
service shall be prorated and adjusted between the parties as of
11:59 p.m. of the Closing Date. No later than twenty (20) days
after the closing, CITY shall reimburse and credit UTILITY for
ninety-five percent (95%) of all accounts receivable zero (0) to
sixty (60) days old as of the Closing Date. UTILITY shall retain
all accounts receivable which are delinquent for more than sixty
(60) days (entitling UTILITY to the proceeds thereof if and when
paid). CITY shall promptly turn over to UTILITY any such
delinquent receivables that may be subsequently paid to CITY and
shall use reasonable efforts to assist UTILITY in the collection of
same, including, without limitation, discontinuing service to
nonpaying customers. CITY agrees to pay UTILITY for ninety-five
percent (95%) of all unbilled revenue, which shall be prorated as
of the Closing Date and paid by CITY to UTILITY within thirty (30)
days of billing. All, rates, fees, and charges for water and sewer
service after the Closing Date shall be the property of CITY.
(3) CITY shall reimburse and credit UTILITY for the
cost of all additional capital improvements made to the System by
or on behalf of UTILITY prior to the Closing Date provided CITY has
consented to said improvements.
(4) UTILITY shall request all of its suppliers and
vendors to submit final invoices for services, materials, and
supplies, including electricity for the period up to and including
the Closing Date. UTILITY shall be responsible for, and shall
provide to CITY, upon request, evidence of the payment of all such
invoices.
13
(5) For all those customers who are connected to
and receiving service (water, wastewater, or water and wastewater)
from UTILITY on the Closing Date and have paid connection, plant
capacity, main extension, and/or capital charges ("Connection
Charges") to UTILITY, the Connection Charges previously paid that
specifically apply to the service being received (water,
wastewater, or water and wastewater) shall be retained by UTILITY.
For all those customers who, on the Closing Date, are not connected
to and receiving service from UTILITY and have paid Connection
Charges to UTILITY, and to whom UTILITY has extended completely all
pipelines necessary to provide service, UTILITY may retain main
extension charges previously paid that specifically apply to the
pipelines extended (water main extension charges for water
pipelines, wastewater main extension charges for wastewater
pipelines), and UTILITY shall pay to CITY and CITY shall receive
from UTILITY all other Connection Charges (including impact.fees)
paid by such customers. All other Connection Charges received
prior to the Closing Date by UTILITY from customers of the System
who have not connected to the System, shall be deemed the property
of CITY, and shall be paid to CITY. Except as otherwise provided
in this Agreement, CITY will not accept or recognize any
obligations regarding prepaid or discounted unconnected customers.
Nothing contained in this Agreement shall be construed to require
CITY to exercise the police power in the allocation of water and/or
wastewater service capacity (hereby deemed to be a governmental
function) other than in accordance with CITY's current or future
service allocation or extension rules. CITY agrees, to the extent
consistent with §768.28, Florida Statutes, to indemnify and hold
UTILITY harmless for any claims, actions, expenses or damages,
including costs and reasonable attorneys' fees at trial and/or
appeal to which UTILITY may be exposed in the future as a result of
any transfer of the Connection Charges by UTILITY to CITY.
(6) The date of closing shall, for purposes of
adjustments and prorations, be deemed to be a seller ownership day.
(7) At closing, UTILITY shall receive a credit in
an amount equal to UTILITY's actual cost of certain inventory
listed in Exhibit 3.13, Part B, to this Agreement.. A final
inventory of the foregoing shall be taken not earlier than five (5)
days or later than -the day prior to Closing by representatives of
the parties to prepare the final list of such inventory.
11.2. Payment of Fees and Taxes. UTILITY shall pay. CITY
all franchise fees and utility taxes due through the Closing Date.
SECTION 12. CLOSING EXPENSES. The cost of recording any
releases, satisfactions, or corrective instruments, along with the
documentary stamps and surtax, if any, on the Deed shall be paid by
UTILITY. The cost of recording the Deed shall be paid by CITY.
Certified, confirmed and ratified special assessments or municipal
liens as of the Closing Date shall be paid by UTILITY.
Notwithstanding the foregoing, to the extent any of the foregoing
certified, confirmed or ratified liens are payable in installments,
14
.Mk A.
CITY shall take title subject to such liens and assume the balance
of such installment payments, subject to appropriate prorations.
SECTION 13. ENVIRONMENTAL MATTERS.
13.1. UTILITY warrants that the Property described in
Exhibit 113.1" and the Purchased Assets are in a clean and healthful
condition, free of environmental contamination or potentially
harmful physical conditions, other than such contaminants or
harmful conditions permitted by law. No hazardous substance has
been improperly stored upon, disposed of, spilled or otherwise
released to the environment on or in the Property or Easements by
UTILITY or, to the best of the knowledge of UTILITY after due
inquiry, by any. other party. For purposes of this Agreement .the
definition of the term -"hazardous substance" shall be that set out
in Section 101(4) of the Federal Comprehensive Environmental
Response, Compensation and Liability Act, except that for purposes
of this Agreement, the term shall also include (1) petroleum (crude
oil) and natural gas (whether existing as 'a gas or a liquid); and
(2) any substance defined as hazardous or toxic by any state or
local regulatory agency having jurisdiction over the operations of
UTILITY.
13.2. The operation by UTILITY of its utility business
complies in all material respects with all applicable federal,
state and local environmental and occupational health and safety
statutes and regulations.
13.3. UTILITY warrants that any tanks (whether above or
below) on or at the Property or Easements installed or used by
UTILITY are in sound conditions, free of corrosion or leaks which
could permit any release of stored material.
13.4. None of the Property has been used by UTILITY or
by any other party for the processing, storing, or otherwise
utilizing asbestos, polychlorinated byphenyls ("PCB's"), or
radioactive substances. UTILITY has received no notice that any of
the foregoing materials are present on or at any Property or
Easements.
13.5. All hazardous waste resulting from the operations
of UTILITY on or at the Property or Easements have been disposed of
in an environmentally sound manner. None of those wastes have been
disposed of in any site where there has been, is, or, due to the
manner of disposition by UTILITY, will be released into the
environment requiring corrective action, nor has UTILITY received
notice from any state or federal environmental agency of its
possible involvement with any disposal site under investigation by
such agency.
SECTION 14. INDEMNITY.
14.1. UTILITY shall, and hereby agrees to defend,
indemnify and hold harmless, CITY at all times from and after the
15
Closing Date against and in respect to any damages, as hereinafter
defined, from claims of any person or entity not a party to this
Agreement which arise out of facts or circumstances occurring on or
prior to the time of the Closing. CITY shall notify UTILITY of any
such claims within thirty (30) days of its receipt of notice
thereof. Damages, as used herein, shall include any obligations,
losses, costs, expenses, injunctions, suits, fines, liabilities,
penalties, and damages, including reasonable attorneys' fees at
trial and all appellate levels, whatsoever that CITY incurs as a
result of judgment or order rendered by a Court or agency of
competent jurisdiction, that arise from, (1) any materially inac-
curate representation made by UTILITY in or under this Agreement;
(2) breach of any of the warranties made by UTILITY in or under
this Agreement; -(3.) breach or default in the performance by UTILITY
of any of the covenants, conditions, commitments, agreements,
duties or obligations to be performed by it hereunder; (4) any
debts, liabilities or obligations of UTILITY, whether accrued,
absolute, contingent or otherwise, due or to become due, except
those obligations specifically assumed by CITY pursuant to this
Agreement; (5) the breach by UTILITY or the failure of any act or
action to occur that is the subject of any duty, obligation,
covenant, condition, commitment, agreement, representation or
warranty undertaken or made by or on behalf of UTILITY pursuant to
this Agreement; and (6) the ownership and operation of the Water
and Wastewater Utility System or the Water and Wastewater System
Assets by UTILITY prior to the Closing Date. UTILITY agrees to
defend, indemnify and hold CITY harmless from and pay any costs,
fees, penalties, or fines that are imposed by a court or agency of
competent jurisdiction, upon CITY or UTILITY, by reason of
UTILITY's failure to fully comply with any EPA, FDEP, or Water
Management District order, rule, or statute, which may arise
before, during, or after the Closing out of facts or circumstances
occurring on or prior to the Closing Date.
14.2. CITY shall, and hereby agrees to defend, indemnify
and hold harmless, UTILITY at all times from and after the Closing
Date against and in respect to any damages, as hereinafter defined,
from claims of any person or entity not a party to this Agreement
which arise out of facts or circumstances occurring on or after the
time of the Closing. UTILITY shall notify CITY of any such claims
within thirty (30) days of its receipt of notice thereof. 'Damages,
as used herein, shall include any obligations, losses, costs,
expenses, injunctions, suits, fines, liabilities, penalties, and
damages, including reasonable attorneys' fees' at trial and all
appellate levels, whatsoever that UTILITY incurs as a result of
judgment or order rendered by a Court or agency of competent
jurisdiction, that arise from, (1) any. materially inaccurate
representation made by CITY in or under this Agreement; (2) breach
of any of the warranties made by CITY in or under this Agreement;
(3) breach or default in the performance by CITY of any of the
covenants, conditions, commitments, agreements, duties or
obligations to be performed by it hereunder; (4) any debts,
liabilities or obligations of CITY, whether accrued, absolute,
contingent or otherwise, due or to become due, except those
16
obligations which were not assumed by CITY pursuant to this
Agreement; (5) the breach by CITY or the failure of any act or
action to occur that is the subject of any duty, obligation,
covenant, condition, commitment, agreement, representation or
warranty undertaken or made by or on behalf of CITY pursuant to
this Agreement; and (6) the ownership and operation of the Water
and Wastewater Utility System or the Water and Wastewater System
Assets by CITY after the Closing Date. CITY agrees to defend,
indemnify and hold UTILITY harmless from and pay any costs, fees,
penalties, or fines that are imposed by a court or agency of
competent jurisdiction, upon UTILITY or CITY by reason of CITY's
failure to fully comply with any EPA, FDEP, or Water Management
District order, rule, or statute, which may arise after the Closing
out of facts or.circumstances occurring after the Closing Date.
SECTION 15. COVENANT NOT TO ENGAGE COMPETING IN UTILITY
BUSINESS. UTILITY agrees that it shall not engage (the words
"shall not" being used in a mandatory definition) in the business
of providing water or wastewater service t& any land located within
CITY including any land annexed into CITY, for the next ten years.
This provision will only become effective upon Closing.
SECTION 16. CITY'S INVESTIGATION. CITY has previously
reviewed and considered the nature of this transaction and has, or
will have, on or before the Closing Date, acted in due diligence to
investigate the System and all aspects of this transaction. Except
only as to those matters which UTILITY has provided for the
representations or warranties in this Agreement, in electing to
proceed with this transaction, CITY shall have determined as of the
Closing Date that the System is satisfactory to CITY in all
respects and is purchasing the System in "as is" condition. CITY
has and will rely solely on CITY's own independent investigations
and inspections, except to the extent of any representations or
warranties made by UTILITY in this Agreement. CITY further
acknowledges and agrees that, except for the specific
representations made by UTILITY in this Agreement, UTILITY has made
no other representations, is not willing to make any
representations and has not held out any inducements to CITY other
than those specifically set forth in this Agreement.
SECTION 17. CLOSING. Provided that all conditions precedent
to closing have, in fact, been so performed, the place of closing
shall be at the City Hall of the City of Sebastian, Florida, or at
such other location selected by CITY in order to accommodate the
closing of any municipal bonds being issued to finance this
transaction pursuant to this Agreement and such closing shall occur
on November 29, 1993 (the "Closing Date") ,or such earlier date as
the parties mutually agree in writing. Any party shall have the
right to extend the Closing Date thirty (30) days beyond November
29, 1993, by sending written notice to the other parties at least
fifteen (15) days prior to November 29, 1993. Immediately
following the Closing Date, CITY shall have full right to the
possession of all of the Water and Wastewater System, all of which
shall be located in Sebastian, Florida.
17
SECTION 18. CLOSING DOCUMENTS AND PROCEDURES.
18.1. Deliveries from UTILITY. At least twenty (20)
days prior to the Closing Date, UTILITY shall deliver to CITY:
(1) True, correct and complete copies of the
Articles of Incorporation and Bylaws of General Development
Utilities, Inc., all as amended and in effect on the Closing Date;
(2) Warranty deeds to all of the Property owned by
UTILITY as described in Exhibit 113.1" conveying to CITY all of
UTILITY's right, title and interest in all such property and
warranting that such property is free and clear of all liens,
claims and encumbrances other than the Permitted Exceptions, as
that term is defined herein.
(3) Instruments of conveyance, in appropriate
recordable form, of all the Easements as described in Exhibit 113.4"
hereof, conveying to CITY all of its right, title and interest in
all such property, together with all utility improvements thereto,
and warranting that such easement rights and rights to use
dedicated rights-of-way are free and clear of all superior
interests which could result in CITY losing the right to use the
easement parcel for utility purposes.
(4) Bills of sale or other documents of assignment
and transfer, with full warranties of title, to all Water and
Wastewater System Assets, other than those assets covered by
Paragraphs 18.1(2) and 18.1(3) hereof;
(5) All business records sold to CITY hereby;
(6) Title insurance policies in the form called for
in Section 6 0£ this Agreement;
(7) All permits, governmental authorizations and
approvals as described in Exhibit 113.7";
(8) Standard mechanics lien affidavit in a form
required by the title, company as to realty and personalty insuring
against any liens, claims or encumbrances upon the Purchased
Assets; and
(9) All existing customer deposits for service to
CITY as required hereunder.
18.2. CITY Deliverables. On the Closing Date, CITY
shall send a wire transfer of federal funds to the account
identified by UTILITY or shall deliver a cashier's check in the
amount due to UTILITY as provided in Section 5 of this Agreement.
In addition, CITY shall sign and provide to UTILITY at closing all
assumption agreements provided to CITY by UTILITY prior to closing
in a form acceptable to CITY's attorney with respect to all
contracts being assumed by CITY to which UTILITY was a party prior
M
to closing and, thereby, being assigned by UTILITY to CITY pursuant
to this Agreement. Furthermore, CITY shall deliver to UTILITY a
certified copy of the Resolution of the CITY Council which approved
the transaction pursuant to this Agreement.
18.3 Conditions Precedent to Closing. The obligations
of CITY pursuant to this Agreement are contingent upon satisfaction
and UTILITY's performance of the following conditions set forth in
Paragraphs 18.3(a) through 18.3(d) prior to closing (or as
otherwise provided below). If any of the contingencies specified
below are not satisfied prior to closing, CITY shall have the
right, at its option, but not the obligation, to declare this
Agreement null and void by written notice to UTILITY and all
parties shall -be released of any further obligations and
responsibilities pursuant to this Agreement.
(a) CITY obtaining, at CITY's expense, a level one
environmental audit indicating that the Property and the Purchased
Assets are in a clean and healthful condition, free of
environmental contamination or potentially harmful physical
conditions, other than such contaminants or harmful conditions
permitted by law. CITY and its agents, contractors or employees
shall have the right to enter upon the Property for the purpose of
performing such audit, providing said activities shall not any way
damage the Property or any part thereof or disrupt the normal
business operations of the Property. Such audit shall be performed
not less than thirty (30) days prior to closing. CITY's failure to
obtain such audit or, in the event CITY shall close this
transaction after having obtained such an audit, shall in no way
relieve UTILITY of any liability with respect to the breach of any
warranty or representation contained in Section 13 of this
Agreement.
(b) CITY determining, in its sole and absolute
discretion, that all contracts or agreements, including, but not
limited to, all leases, service agreements and developers'
agreements, which CITY is to assume pursuant to this Agreement or
which shall affect or obligate CITY at any time after the Closing
Date, shall be suitable to CITY. For a period of thirty (30) days
commencing upon delivery of all applicable contracts and agreements
to CITY, CITY shall be entitled to inspect said contracts and
agreements and UTILITY shall give to CITY and its agents,
contractors or employees full access to all such contracts and
commitments and shall furnish to CITY all information concerning
such contracts and commitments as CITY may reasonably request. In
the event CITY fails to notify UTILITY, in writing, of CITY's
election to terminate this Agreement due to the unsuitability of
any contract or agreement within the foregoing thirty (30) day
period, this condition shall be deemed waived.
(c) All UTILITY's representations and
warranties contained in this Agreement shall be true as of the
Closing Date as if such representation and warranties were made at
19
such time, and all such representations of warranties shall survive
the Closing for a period of two (2) years.
(d) All corporate, governmental and other
proceedings to be taken by UTILITY and CITY in connection with the
transactions contemplated hereby and all documents incident thereto
shall be reasonably satisfactory in form and substance to CITY, and
to UTILITY, and to their respective attorneys, and CITY and UTILITY
shall have received from each other all such counterpart originals
or certified or other copies of such documents as CITY or UTILITY
may reasonably request.
SECTION 19. RESPONSIBILITY FOR PROFESSIONAL FEES AND COSTS.
Each party hereto shall be responsible for its own reasonable
attorneys" fees, engineering fees, accounting fees and other costs
in connection with the preparation and execution of this Agreement.
SECTION 20.
INTENTIONALLY BLANK
SECTION 21. COMMISSIONS. UTILITY and CITY warrant to the
other that the transaction contemplated by this Agreement is a
direct, private transaction between UTILITY and CITY without the
use of a broker or commissioned agent.
SECTION 22. FURTHER ASSURANCES. Each of the parties hereto
agrees that, from time to time, upon the reasonable request of the
other party and at the expense of the requesting party, without
further consideration, it shall execute and deliver to the
requesting party any and all further instruments, affidavits,
conveyances and transfers as may be reasonably required to carry
out the provisions of this Agreement.
SECTION 23. NOTICES: PROPER FORM. Any notices required or
allowed to be delivered hereunder shall be in writing and be deemed
to be delivered when (1) hand delivered to the person hereinafter
designated, (2) upon receipt of such notice when deposited in the
United States mail, postage prepaid, certified mail, return receipt
requested, addressed to a party at the address set forth opposite
the party's name below, or at such other address as the party shall
have specified by written notice to the other party delivered in
accordance herewith, or (3) sent by a recognized overnight courier,
such as Federal Express, addressed to a party at the address set
forth opposite the party's name below, or at such other address as
the party shall have specified by written notice to the other party
delivered in accordance herewith:
20
CITY: City Manager
City of Sebastian, Florida
City Hall
1225 Main Street
Sebastian, Florida 32958
(407) 589-5330
Fax (407) 589-5570
with a copy to: Charles Ian Nash, Esquire
City Attorney
Frese, Nash & Torpy, P.A.
930 S. Harbor City Blvd.
Suite 505
Melbourne, Florida 32901
(407) 984-3300
Fax (407) 951-3741
UTILITY: Charles' E. Fancher, Jr.,
President
General Development Utilities,
Inc.
2601 South Bayshore Drive
Miami, Florida 33131
(305) 859-4331
Fax (305) 859-4657
with a copy to: Marcia H. Langley, Esq.
Atlantic Gulf Communities Corp.
2601 South Bayshore Drive
Miami, Florida 33133-3461
(305) 859-4231
Fax (305) 859-4524
SECTION 24. NO INTERFERENCE WITH EMPLOYMENT. UTILITY will
not interfere with CITY hiring any of the present operational staff
of the Water and Wastewater System. CITY shall notify UTILITY
thirty (30) days prior to the Closing Date as to which existing
employees of UTILITY to whom CITY will be extending offers of
employment.
SECTION 25. ENTIRE AGREEMENT. This instrument and the
Exhibits annexed hereto constitute the entire Agreement between the
parties and supersedes all previous discussions, understandings,
and agreements between the parties relating to the subject matter
of this Agreement.
SECTION 26. AMENDMENT. Amendments to and waivers to the
provisions herein shall be made by the parties only in writing by
formal amendment.
21
SECTION 27. DISCLAIMER OF THIRD PARTY BENEFICIARIES. This
Agreement is solely for the benefit of the formal parties herein,
and no right or cause of action shall accrue upon or by reason
hereof, to or for the benefit of any third party not a formal party
hereto.
SECTION 28. BINDING EFFECT. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by legal representatives, successors and nominees of
CITY and UTILITY.
SECTION 29. TIME OF THE ESSENCE. Time is hereby declared of
the essence to the performance of this Agreement.
SECTION 30. APPLICABLE LAW. This -Agreement shall be con-
strued, controlled, and interpreted according to the laws of the
State of Florida, and the venue for any action or suit brought to
interpret or enforce any of the provisions of this Agreement shall
be filed and maintained in Indian River County, Florida.
SECTION 31. CORROBORATION OF PAYMENT AFTER CLOSING. In each
instance in which any party to this Agreement is to receive money
from another party to this Agreement after the Closing Date, the
party who is entitled to receive the money under the terms of this
Agreement shall have the right to inspect, at its own expense,
those books and records of the other party as may be necessary to
corroborate the accuracy of the amount of money received from the
party, within thirty (30) days of receipt of the payment. The
provisions of this Section shall survive the closing.
SECTION 32. CONSTRUCTION. All of the parties to this
Agreement have participated fully in the negotiation and
preparation hereof, and accordingly, this Agreement shall not be
more strictly construed against any of the parties hereto. In
construing this Agreement, the singular shall be held to include
the plural, the plural.shall be held to include the singular, the
use of any gender shall be held to include any other and all
genders, and the captions and paragraph headings shall be
disregarded.
SECTION 33. SEVERABILITY. In the event any term or provision
of this Agreement is determined by the appropriate judicial
authority to be illegal or otherwise invalid, such provision shall
be given its nearest legal meaning or be construed as deleted as
such authority determines, and the remainder of this Agreement
shall be construed to be in full force and effect.
SECTION 34. COUNTERPARTS. This Agreement may be executed in
several counterparts, and each such counterpart shall be deemed an
original, but all such counterparts will constitute one agreement.
SECTION 35. SPECIFIC PERFORMANCE. In the event any party to
this Agreement fails to close on the Closing Date (without any
default by another party), time being of the essence, or in the
22
event of any other default by any party of its obligations
hereunder which continues for a period of fifteen (15) days
following written notice thereof from another party, the non -
defaulting shall be entitled to seek all rights and remedies
available at law or equity, including specific performance.
SECTION 36. SURVIVAL OF INDEMNIFICATIONS. All agreements of
indemnity made by any party to this Agreement shall survive the
closing for a period of two (2) years.
SECTION 37. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date and year first above written.
Signed, sealed and delivered
in the presence of:
(x)19
Name: Wendy B. Widmann
- //
(x) /J�
Name: Richard B. Votapka
Approved as to Form and Legal
SZ Z
eZY�
Richard E. Torp_
Assistant City Attorney
23
CITY:
THE CIT
By: Ix 0£ EBASTIAN, FLORIDA
✓11I`
Lonnie R. Powell, M or
Attest.
Kathr M. O'Halloran,
CMC/AAE, City Clerk
(SEAL)
Signed, sealed and delivered
in the presence of:
(X)/l�Div.-�4
Name: J/Qe7.,? L. W'4-w,�
Name • C26/1 .L NG ra 112.,
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
UTILITY:
GENERAL DEVELOPMENT UTILITIES,
INC., a corpprat�on
By:
President
[Corporate Seal]
The foreg ing instrument was acknowledged before me this
4 day of , 1993 by Lonnie R. Powell, the Mayor
of THE CITY OF SEBASTIAN, FLORIDA, on behalf of THE CITY OF
SEBASTIAN. 1-7*-41is personally known—to me or has produced
A -)/A as identification.
State of
SALLY A. MAK+
Nowy Pub k•amiu or Aiorm
Ny Cortw"W ExWw OCT 05,1997
CDW t cc 075906
Name of A knowledger Typed,
Printed or Stamped
Col 045906
Commission Number
24
STATE OF FLORIDA
COUNTY OF -2�fA D �—
he foregoing in� ent was acknowledged before me this
day of /Ec , 1993 by Charles E. Fancher, Jr.,
President of GENERAL DEVELOPMENT UTILITIES, INC., a Florida
Corporation, on behalf of the corporation. He is personally known
to me or has produced as identification.
OrFl= NOTARY SEAL
WILSON
w 1 y COMLTAR]ON NUMBER
%Frta`� CC174107
MY COMMISSION EXP.
OF pO FEB. 6 1996
�tTary Public
State of Florida
% AIAI.4 / Z, l c% /--&A,
Name of ACknowledger Typed,
Printed or Stamped
Commission Number
25
p0.V P
O� LB OfFlGAIAL
NOTAR!'
N < OOMMI6810/! Nl:rlean
T, p CCI?4,
FOF FLOC MY COMMIS' ' • zP.
FEF
"LIST OF EXHIBITS
TO
CITY OF SEBASTIAN, FLORIDA/
GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM
PURCHASE AND SALE AGREEMENT
3.1 Land
3.3 Equipment
3.4 Easements, ROWS, and other similar real estate rights
and assets
3.6 Business Records
3.7 Permits and Approvals
3.11 All Assigned and Assumed
3.13 Inventory Part A and Part
c:\wp\cin\sebasgdu.RE2
26
Contracts and Agreements
B
z
r.
STATE OF FLORIDA ) AFFIDAVIT
COUNTY OF S1J rVeP_ SS;
Ur�A-
BEFORE ME, the undersigned authority, personally appeared
Charles E. Fancher, Jr. (the "Affiant"), who being by me first duly
sworn, on oath deposes and says as follows:
1. Affiant is the President of General Development
Utilities, Inc., a Florida corporation, and he is duly authorized
to execute this Affidavit on behalf of the corporation (the
"Transferor").
2. Transferor is the owner of that certain property located
and being situate in Indian River County, Florida,- more
Particularly described in Exhibit I'All attached hereto and by this
reference made a part hereof (the "Property").
3. Except for those certain contracts listed on Exhibit "Bly
attached hereto and by this reference made a part hereof, there are
no outstanding contracts, either oral or written, for the
furnishing of labor, material or services to the Property for any
improvements thereon, and except for the services and materials
provided in December, 1993 by those certain suppliers and vendors
listed in Exhibit 11C11 attached hereto and by this reference made a
part hereof (collectively, the "suppliers") within the past ninety
(90) days: (i) there have been no improvements, alterations or
repairs to the Property for which the cost, or any part thereof,
remain unpaid, and (ii) there have been no claims for labor or
material furnished for repairing or improving the Property, which
remain unpaid.
4. There are no mechanic's, materialmen's or laborer's liens
against the Property, or any part thereof, and that except for the
Suppliers, no contractor, subcontractor, laborer or materialman,
engineer, land engineer or surveyor has any lien or right to a lien
against the Property or any part thereof.
5. Transferor has exclusive possession of the Property and
there are no other parties with a right to possession of the
Property other than Transferor.
6. Transferor is a corporation organized under the laws of
the State of Florida, and is not a foreign corporation as that term
is defined in the Internal Revenue Code and Income Tax Regulations.
That the United States employer identification number of Transferor
is 59-881993, and Transferor's office address is 2601 South
Bayshore Drive, Miami, Florida 33133-5461. This Affidavit is being
given for the purpose of exempting from the withholding require-
ments of Internal Revenue Code Section 1445 that certain transac-
tion whereby Transferor is conveying an interest in the Property to
City of Sebastian, Florida (the "Purchaser"). Transferor
understands that this Affidavit may be disclosed to the Internal
Revenue Service by the Purchaser, and that any false statement
contained herein could be punished by fine, imprisonment or both.
7. There has been no change in title to the Property from
and after December io, 1993, at ;oo a.m., and except as set forth
in paragraphs 3 and 4 above, there are no matters pending which
could give rise to a lien that would attach to the Property.
8. This Affidavit has been executed and delivered to induce:
(i) Purchaser topurchase the Property, and (ii) First American
Title Insurance Company to insure Purchaser's interest in the
Property.
..
9. Affiant is. executing this Affidavit solely in his
capacity as a President of Transferor and no resort shall be had to
any of Affiant's personal assets on account hereof.
10. The Affiant is familiar with the nature of an oath; and
with the penalties as provided by the laws of the State aforesaid
for falsely swearing to statements made in an instrument of this
nature. The Affiant has read, or has heard read, the full facts of
this Affidavit, and understands its co ent .
Charles E. Fancher, Jr. ffiant,,
SWORN TO AND SUBSCRIBED before me
this _Lj_ day of December, 1993 by
Charles E. Fancher, Jr. He is personally
known to me or produced a driver's
license /as identification.
V,
#Yjj—
vur-drY Public, St to of Florida
Name: c0 -geld C.
Commission No. AA 759 330
My Commission Expires: 3 -IV _,jt`
ca�m�au1W ur.u.
[Notarial Seal]
"OFFICIAL NOTARY SEAL°
CHARLES C. HEARTSFIE6D
MY COY.M. EXP. 3/18/94
2 -
r:
PARCEL I:
All of Tract "D" as shown on the plat of SEBASTIAN HIGHLANDS
UNIT -17, as recorded in Plat Book 8, Page 46, Public Records of
Indian River County, Florida.
PARCEL II:
A parcel of land located in the Northeast 1/4 of the Northeast
1/4;
LESS the East 20 acres thereof and a portion of the Southeast
1/4 of the Northeast 1/4 of Section 18, Township 31 South, Range
39 East, Indian River County, Florida, and being more
particularly described as follows:
Begin at the Northeast corner of said Section 18, Township 31
South, Range 39 East; thence South 89022136" West, along the
North line of the said Northeast 1/4 of Section 18, a distance
of 657.45 feet to the Northwest corner of the said East 20 acres
of the Northeast 1/4 of the Northeast 1/4; thence South
00001124" West, along the West line of the said East 20 acres, a
distance of 1325.55 feet, to a point in the South line of the
said Northeast 1/4 of the Northeast 1/4; said point also being
the Northwest corner of Sebastian Highlands Unit 9, as recorded
in Plat Book 6, Page 36A, Public Records of Indian River County,
Florida; thence continue along the boundary of said plat of
Sebastian Highlands Unit 9, the following courses and distances:
thence continue South 00001124" West, a distance of 130.66 feet
to a point in a curve concave to the Southwest having a radius
of 435.64 feet, the chord of which bears North 85020121" West;
thence Westerly along the are of said curve, a distance of 70.30
feet, through a central angle of 0901414811, departing said
platted boundary;
thence North 00001124" East, a distance of 54.11 feet;
thence South 89019102" West, a distance of 71.5 feet more or
less, to the Easterly waters edge of Schumann Lake;
thence Northwesterly, Westerly, Southerly, southeasterly,
Southwesterly, Westerly and Southerly meander the waters edge of
Schumann Lake, a distance of 1647 feet, more or less, to the
South line of the said Southeast 1/4 of the Northeast 1/4;
thence South 89015127" West, along the South line of the said
Southeast 1/4 of the Northeast 1/4, a distance of 97.9 feet,
more or less, to the Southwest corner of the said southeast 1/4
of the Northeast 1/4;
thence North 000.01'25" West, along the West line of the said
East 1/2 of the Northeast 1/4, a distance of 2652.47 feet to the
aforesaid North line of the Northeast 1/4;
thence North 89022136" East along the said North line, a
distance of 673.15 feet to the Point of Beginning.
PARCEL III:
The East 200 feet of Tract "A", SEBASTIAN HIGHLANDS, UNIT 9,
according to the plat thereof, recorded in Plat Book 6, Page 36
and 36A, Public Records of Indian River County, Florida.
OM
EXHIBIT 11BRI
None
EXHIBIT "C"
None
FAnC200 (6.66)
Commitment
No. FA -CC -381368
COMMITMENT FOR TffLF. INSURANCE
ISSI ED BN
First American Title Insurance Company
FIRST AMERICAN TITLE INSURANCE COMPANY, a corporation of California, herein
called the Company, for a valuable consideration, hereby commits to issue its policy or policies
of title insurance as identified in Schedule A, in favor of the proposed Insured named in Schedule
A, as owner or mortgagee of the estate or interest covered hereby in the land described or referred
to in Schedule A, upon payment of the premiums and charges therefor; all subject to the provisions
of Schedules A and B and to the Conditions and Stipulations hereof.
This Commitment shall be effective only when the identity of the proposed Insured and the
amount of the policy or policies committed for have been inserted in Schedule A hereof by the
Company, either at the time of the issuance of this Commitment or by subsequent endorsement.
This Commitment is preliminary to the issuance of such policy or policies of title insurance
and all liability and obligations hereunder shall cease and terminate six (6) months after the
Effective Date hereof or when the policy or policies committed for shall issue, whichever first
occurs, provided that the failure to issue such policy or policies is not the fault of the Company.
This Commitment shall not be valid or binding until Schedule A has been countersigned by
either a duly authorized agent or representative of the Company and Schedule B -I and B -II have
been attached hereto.
IN WITNESS WHEREOF, the Company has caused this Commitment to be signed and sealed,
to become valid when countersigned by an authorized officer or agent of the Company, all in accord-
ance with its By -Laws. This Commitment is effective as of the date shown in Schedule A as
"Effective Date".
First American Title Insurance Company
BY % //� V PRESIDENT
l//� r
ATTEST SECRETARY
A.L.T.A. COMMITMENT -1966
STANDARD EXCEPTIONS FOR OWNER'S POLICY
The owner's policy will be subject to the mortgage, if any, noted under item one of Item 4 of
Schedule B -I hereof and to the following general execptions:
2. Easements, or claims of easements, not shown by the public records.
3. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed
by an accurate survey or inspection of the premises.
5. Any adverse claim to any portion of said land which has been created by artificial means or
has accreted to any such portion so created and riparian rights, if any.
ex
CONDITIONS AND STIPULATIONS
The term "mortgage," when used herein, shall include deed of trust, trust deed, or other security
instrument.
2. If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse
claim or other matter affecting the estate or interest or mortgage thereon covered by this Commit-
ment other than those shown in Schedule B-1 and Schedule B -II hereof, and shall fail to disclose
such knowledge to the Company in writing, the Company shall be relieved from liability for any
loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced
by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to
the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien,
encumbrance, adverse claim, or other matter, the Company at its option may amend Schedule B -I
and/or Schedule B -II of this Commitment accordingly, but such amendment shall not relieve the
Company from liability previously incurred pursuant to paragraph 3 of these Conditions and
Stipulations.
3. Liability of the Company under this Commitment shall be only to the named proposed Insured
and such parties included under the definition of Insured in the form of policy or policies com-
mitted for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to
comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B-11 or
(c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment.
In no event shall such liability exceed the amount stated in Schedule A for the policy or policies
committed for and such liability is subject to the insuring provisions, the Exclusions from Cover-
age and the Conditions and Stipulations of the form of policy or policies committed for in favor
of the proposed Insured which are hereby incorporated by reference and are made a part of this
Commitment except as expressly modified herein.
Any action or actions or rights of action that the proposed Insured may have or may bring against
the Company arising out of the status of the title to the estate or interest or the status of the
mortgage thereon covered by this Commitment must be based on and are subject to the pro-
visions of this Commitment.
�� AMERI
First American Title Insurance Company
COMMITMENT
FOR
TITLE
INSURANCE
First American Title Insurance Company
SCHEDULE A
Customer Reference No.:
Agent's File No.: 7931410-4 Commitment No. FAC 381368 JM
Date Issued: October 6, 1993
Date Effective: SVg1t mt,l �1. w93 @ 08:00 AM
p ClC �n lxr ID 1
2. Policy or Policies to be issued: -Amount of -Peli-e
(a) A.L.T.A. Owner's Policy Determ' o to�,y�
(4/6/90 with Florida Modifications) eed $1,000,000.00�
Proposed Insured: A NATURAL PERSON OR LEGAL ENTITY TO
BE DESIGNATED
CITV1 OF Sfi3RSTlRa�FLORIDA(
KH.
(b) A.L.T.A. Loan Policy Amount of Policy: $ 3,bSo 000.00
(4/6/90 with Florida Modifications)
Proposed Insured:
3. The estate or interest in the land described or referred to in
this Commitment and covered herein is an estate designated as
follows:
FEE SIMPLE
4. Title to the estate or interest in the land described or referred
to in this Commitment and covered herein (and designated as
indicated in No. 3 above) is, at the effective date hereof,
vested in:
GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation
5. The land referred to in this Commitment is in the State of
Florida, County of Indian River and described as follows:
PARCEL I:
All of Tract "D" as shown on the plat of SEBASTIAN HIGHLANDS
LEGAL DESCRIPTION CONTINUED ON NEXT PAGE
First American Title Insurance Company
UNIT -17, as recorded in Plat Book 8, Page 46, Public Records of
Indian River County, Florida.
PARCEL II:
A parcel of land located in the Northeast 1/4 of the Northeast
1/4;
LESS the East 20 acres thereof and a portion of the Southeast
1/4 of the Northeast 1/4 of Section 18, Township 31 South, Range
39 East, Indian River County, Florida, and being more
particularly described as follows:
Begin at the Northeast corner of said Section 18, Township 31
South, Range 39 East; thence South 89022136" West, along the
North line of the said Northeast 1/4 of Section 18, a distance
of 657.45 feet to the Northwest corner of the said East 20 acres
of the Northeast 1/4 of the Northeast 1/4; thence South
00001124" West, along the West line of the said East 20 acres, a
distance of 1325.55 feet, to a point in the South line of the
said Northeast 1/4 of the Northeast 1/4; said point also being
the Northwest corner of Sebastian Highlands Unit 9, as recorded
in Plat Book 6, Page 36A, Public Records of Indian River County,
Florida; thence continue along the boundary of said plat of
Sebastian Highlands Unit 9, the following courses and distances:
thence continue South 00001124" West, a distance of 130.66 feet
to a point in a curve concave to the Southwest having a radius
of 435.64 feet, the chord of which bears North 85020121" West;
thence Westerly along the arc of said curve, a distance of 70.30
feet, through a central angle of 0901414811, departing said
platted boundary;
thence North 00001124" East, a distance of 54.11 feet;
thence South 89019102" West, a distance of 71.5 feet more or
less, to the Easterly waters edge of Schumann Lake;
thence Northwesterly, Westerly, Southerly, Southeasterly,
Southwesterly, Westerly and Southerly meander the waters edge of
Schumann Lake, a distance of 1847 feet, more or less, to the
South line of the said Southeast 1/4 of the Northeast 1/4;
thence South 89015127" West, along the South line of the said
Southeast 1/4 of the Northeast 1/4, a distance of 97.9 feet,
more or less, to the Southwest corner of the said Southeast 1/4
of the Northeast 1/4;
thence North 00001'25" West, along the West line of the said
East 1/2 of the Northeast 1/4, a distance of 2652.47 feet to the
aforesaid North line of the Northeast 1/4;
thence North 89022136" East along the said North line, a
distance of 673.15 feet to the Point of Beginning.
LEGAL DESCRIPTION CONTINUED ON NEXT PAGE
First American Title Insurance Company
PARCEL III:
The East 200 feet of Tract "A", SEBASTIAN HIGHLANDS, UNIT 9,
according to the plat thereof, recorded in Plat Book 6, Page 36
and 36A, Public Records of Indian River County, Florida.
FIRST AMERICAN TITLE INSURANCE COMPANY
B
Atithorized Sig atory
First American Title Insurance Company
Agents File No.: 7931410-4
SCHEDULE B-1
(Requirements)
Commitment No: FAC 381368 JM
The following are the requirements to be complied with:
�at\y 2. Payment of all taxes, assessments, levied and assessed against
09:7,,f subject premises, which are due and payable.
C�.i•Q"X
anatery evi be produced a1; i1l jJ11jiX0VAmiEarts=and
or repairs or alter ns—thereto re completed; that contractor,
subc tr atio�'a -_=--F_ll_
( p z,��delivered and duly filed for record:
K.'-
a.
r °
Record proper Deed from GENERAL DEVELOPMENT
Florida corporation to A NATURAL PERSON OR
DESIGNATED.
UTILIT S, INC., a
EG ENTITY TO BE
°-c b. Partial Release of Mortgage and Security A Bement from General
4'0"'C�r1'5 ' Development Corporation, a Delaware corporation and Environmental
•'v'2�- Quality Laboratory, Incorporate Florida corporation, to
Manufacturers Hanover Trust C `i y, a New York banking
corporation, dated as of 3/31/9k ecorded 3/30/93 in O.R. Book
928, Page 437, Indian River Co y Records. (As to Parcel III)
c. Partial Termination of Financing Statement given by General
Development Corporation,Delaware corporation, Cumberland Cove,
Inc., a Tennessee corp fation, Environmental Quality Laboratory,
Incorporation, a Flo da corporation, and Florida Home Finders,
Inc., a Florida orporation to Manufacturers Hanover Trust
Company, a New Y k banking corporation, as agent for the parties
listed on Sched e 2 attached thereto, and made a part hereof,
recorded 3/30 2 in O.R. Book 928, Page 730, Indian River County
Records. (As to Parcel III)
d.Partial lease of Subordinate Mortgage and Security Agreement
from Ge eral Development Corporation, a Delaware corporation and
Envir ental Quality Laboratory, Incorporated, a Florida
corp ration to Manufacturers Hanover Trust Company, a New York
ba ing corporation, dated as of 3/31/92, recorded 3/30/92 in
O.R. Book 928, Page 1008, Indian River County Records. (As to
First American Title Insurance Company
SCHEDULE B-1
(Requirements Continued)
e Pai l Tezmirat ion -of Financing Statement— given—by—Genera-L
Development Corporation, a Delaware corporation and additional
debtors listed on Schedule 1 attached thereto and made a part
hereof to manufactures Hanover Trust Company, a New York banking
corporation, as agent for the parties listed on Schedule 2
attached thereof, and made a part hereto, recorded $/30/92 in
O.R. Book 928, Page 1301, Indian River County Records. (As to
Parcel III)
f. Termination of Financing Statement given by Gearal Development
Corporation, a Delaware corporation, and additional debtors
listed on Schedule 1 attached thereto and made a part hereof to
Manufacturers Hanover Trust Company, a New York banking
corporation, as agent for the parties -"listed on Schedule 2
attached thereto and made a part hereof, recorded 7/21/92 in
O.R. Book 941, Page 469, Indian Riv - County Records. (As to
Parcel III)
j
g. Partial Termination of Financinc;z-�Vfatement given by General
Development Corporation, a Delwa2e corporation, and additional
debtors listed on Schedule 1 attached thereto and made a part
hereof, to Manufacturers Hanover Trust Company, a New York
banking corporation, as agent for the parties listed on Schedule
2 attached thereof, and made a part hereof, recorded 7/21/92 in
O.R. Book 941, Page 475, Indian River County Records. (As to
Parcel III)
h. Partial Release of Mortgage and Security Agreement No. 1 in the
amount of $50,000,000.00 from General Development Utilities,
Inc., a Florida corporation to Chemical Bank, a New York banking
corporation, as successor by merger with Manufacturers Hanover
Trust Company,,dated as of 8/31/92, recorded 9/17/92 in O.R.
Book 946, Page 2281, Indian River County Records. (As to all
Parcels)
i. Partial Release of Mortgage and Security Agreement No. 2 in the
amount of $50,000,000.00 from General Development Utilities,
Inc., a Florida corporation to Chemical Bank, a New York banking
corporation, as successor by merger with Manufacturers Hanover
Trust Company, dated as of 8/31/92, recorded 9/17/92 in O.R.
Book 946, Page 2330, Indian River County Records. (As to all
Parcels-)
First American Title Insurance Company
SCHEDULE B-1
(Requirements Continued)
No. 1 in the amount of $20,000,000.00 from General Develop
m
Utilities, Inc., a Florida corporation to Chemical Bank, New
York banking corporation, successor by merger withManuf turers
Hanover Trust Company, dated as of 8/31/92, recorded 9 7/92 in
O.R. Book 946, Page 2388, Indian River County Reco s. (As to
all Parcels)
k. Partial Release of Subordinate Mortgage and4,curity Agreement
No. 2 in the amount of $20,000,000.00 from eneral Development
Utilities, Inc., a Florida corporation to/Chemical Bank, a New
York banking corporation, successor by merger with Manufacturers
Hanover Trust Company, dated as of 8/3 /92, recorded 9/17/92 in
O.R. Book 946, Page 2438, Indian Riv r County Records. (As to
all Parcels) —
1. Termination of FinancingW
given by General Development
Utilities, Inc., a Florition to Chemical Bank, a New
York banking corporation, for the parties listed on
Schedule 1 attached themade part hereof, recorded
9/17/92 in O.R. Book X�2497, Indian River County
Records. (As to all Parcels)
M. Termination of Fin ncing Statement given by General Development
Utilities, Inc., Florida corporation to Chemical Bank, a New
York banking corporation, as Agent for the parties listed on
Schedule 1 attached thereto and made a part hereof, recorded
9/17/902 in/O.R. Book 946, Page 2530, Indian River County
Records. (As to all Parcels)
n. Record certified copy of Dismissal, or an Order Authorizing Sale
of t subject property as entered in the Bankruptcy Proceedings
fil d in the Southern District of the State of Florida
Ba kruptcy Division on behalf of General Development
rporation, at al, Case Nos. 90 -12231 -BRC -AJC. (As to all
�y� t C a e o F ori r
4U� GENERAL DEVELQ.,
e er s i avi sa isfactory o f
ai s aaiels lens.
7. Submit a proper survey certified to all parties involved in this
transaction, including but not limited to, First American Title
Insurance Company.
First American Title Insurance Company
SCHEDULE B -II
(Exceptions)
Agents File No.: 7931410-4 Commitment No: FAC 381368 JM
Schedule B of this policy or policies to be issued will contain
exceptions to the following matters unless the same are disposed of to
the satisfaction of the Company.
1. Defects, liens, encumbrances, adverse claims, or other matters, if
any, created, first appearing in the public records, or attaching
subsequent to the effective date hereof but prior to the date the
'e proposed Insured acquires for value of record the estate or
interest or mortgage thereon covered by this Commitment.
Z>
2. Any owners policy issued pursuant hereto will contain under
Schedule B. the General Exceptions set forth at the inside cover �Np
hereof. Any loan policy will contain Schedule B General Exceptions It/
1,2,3 and 5 unless a satisfactory survey and inspection of the "µJi
premises is made and will contain General Exceptions 4 and 6.
contruction loan to be disbursed in future periodic iuAaliments,
then the policy shall contain an additional except' which shall
read as follows:
Pending disbursement of the full proceeds-,Pf"the loan secured by
the mortgage insured, this pol' y only sures the amount actually
disbursed, but increases as oc edsdisbursed in good faith
and without knowledge of an i tjr�aening lien or interest to or for
the account of the mortgag rEis
the amount of the policy. Such
disbursement shall not extenddate of the policy or change any
part thereof unless such Ia specifically made by written
endorsement duly issued ,9 behalf of the Company. Upon request by
the insured (and paymq�nt of the proper charges therefor) the
Company will search a public records subsequent to the date of
the policy and f,uknish to the insured a continuation report
showing such matters affecting title to the land as they have
appeared in the public records subsequent to the date of the policy
or the dat of the last preceding continuation report, and if such
continuation report shows intervening lien, or liens, or interest
to or or the account of the mortgagor, then in such event this
po 'cy does not increase in liability unless such matters as
a,dtually shown on such continuation report is removed from the
EXCEPTIONS CONTINUED ON NEXT PAGE
First American Title Insurance Company
SCHEDULE B -II
(Exceptions Continued)
4. The lien of the taxes for the year 1993 and all subsequent years,
which are not yet due and payable.
Wr Parcel No.: 19-3f-39 001-0004-00001/0 - AS TO PARCEL I
pR 1992 Taxes are PAID1'�,1Gross Amount $ 8,780.03
- K
Parcel No.: 18-31-39-00000-100�0-'0002/0 - AS TO PARCEL II
1992 Taxes are PAID. Gross Amount $ 3,646.57
5. Terms and Conditions shown in said Declaration of Restrictions, by
General Development Corporation, a Delaware corporation, dated
6/29/71, recorded 7/22/71 in O.R. Book 389, Page 164, Indian River
County Records. (As to Parcel I)
6. Terms and Conditions shown in said Declaration of Restrictions, by
General Development Corporation, a Delaware corporation, recorded
in O.R. Book 393, Page 522, Indian River County Records. (As to
Parcel I)
7. Easement granted to American Telephone & Telegraph Company from
Indian River Farms. Co., dated 3/8/26, recorded in Misc. Book 1,
Page 199, Indian River County Records. (As to Parcel II)
8. Subject to reservations of oil, gas and minerals and/or
rights-of-way to Trustees of the Internal Improvement Fund as set
forth in instrument recorded in Deed Book 35, Page 337 Public
Records of Indian River County, Florida. The right of entry in
respect to any interest in phosphate, minerals, metals or petroleum
has been released pursuant to Florida Statute 270.11. (As to
Parcels II and III)
y Fa�__a_ mme i anted -to -General —d eve 1opmeut---Jtk1it1es,- Inc—_ --from
Gene_ral_Development Corporation,_ dated--4J-27J96;-recordedF6/24/76 in
/ O.R. Book ,_Page -7l, -Indian River County Records. (As to Parcel
EXCEPTIONS CONTINUED ON NEXT PAGE
x
Parcel No.: 18-31-39-00001-0001-00002/0
- AS TO
PARCEL III
1992 Taxes are PAID. Gross Amount $
447.43
c
ko �1
NOTE: If subject property has been
a rental
unit or non -owner
`yti ,Y
occupied property, it may be
subject
to Tangible Taxes,
which are not covered by this
policy, nor
has an examination
been made of said taxes. Upon
request
and payment of an
appropriate search fee we will
conduct
an examination for
tangible taxes.
5. Terms and Conditions shown in said Declaration of Restrictions, by
General Development Corporation, a Delaware corporation, dated
6/29/71, recorded 7/22/71 in O.R. Book 389, Page 164, Indian River
County Records. (As to Parcel I)
6. Terms and Conditions shown in said Declaration of Restrictions, by
General Development Corporation, a Delaware corporation, recorded
in O.R. Book 393, Page 522, Indian River County Records. (As to
Parcel I)
7. Easement granted to American Telephone & Telegraph Company from
Indian River Farms. Co., dated 3/8/26, recorded in Misc. Book 1,
Page 199, Indian River County Records. (As to Parcel II)
8. Subject to reservations of oil, gas and minerals and/or
rights-of-way to Trustees of the Internal Improvement Fund as set
forth in instrument recorded in Deed Book 35, Page 337 Public
Records of Indian River County, Florida. The right of entry in
respect to any interest in phosphate, minerals, metals or petroleum
has been released pursuant to Florida Statute 270.11. (As to
Parcels II and III)
y Fa�__a_ mme i anted -to -General —d eve 1opmeut---Jtk1it1es,- Inc—_ --from
Gene_ral_Development Corporation,_ dated--4J-27J96;-recordedF6/24/76 in
/ O.R. Book ,_Page -7l, -Indian River County Records. (As to Parcel
EXCEPTIONS CONTINUED ON NEXT PAGE
First American Title Insurance Company
SCHEDULE B -II
(Exceptions Continued)
c o Notice of Filing Bankruptcy Pet i it -on —in the — Scuth
District of the State of Florida Bankru ny DIV-isi n behalf of
/\ General Development Co poratioh, et al, Case No. 90 -12231 -BRC -AJC,
recorded 5 4- in O.R. Book 865, Page 1897, Indian River County
Re (As *e all vaZcals)
11. No title is insured to any personal property.
AWN
AGREEMENT
THIS AGREEMENT, entered into this day of December, 1993 by and
between GENERAL DEVELOPMENT UTILITIES, INC., a Florida corporation, hereinafter
referred to as "GDU" and the CITY OF SEBASTIAN, FLORIDA, a municipal corporation
created under the laws of the State of Florida, acting through its City Council,
hereinafter referred to as the "City".
RECITALS
1. GDU is on even date herewith conveying the Sebastian Water and
Wastewater System (the "Utility System") to the City in accordance with that certain
City of Sebastian, Florida/General Development Utilities, Inc. Water and Sewer System
Purchase And Sale Agreement date October 12, 1993. (the "Agreement")
2. The City ultimately intends to operate the Utility System through its own
employees and under its sole discretion, but as of the date hereof, the City is unable
to operate the Utility System in its entirety.
3. Pursuant to Paragraph 4 of the Agreement, GDU agreed to provide
certain transitional services to City at no additional cost to City, but City has
requested certain additional services be provided by GDU and GDU has agreed to
provide such services in accordance with the terms set forth herein.
4. During a transition period following the date of acquisition, in addition to
the services to be provided by Utility to City, technical support relating to billing and
information processing will be required to provide uninterrupted service for the
customers of the Utility System.
5. GDU has indicated its willingness to provide technical support during the
period, not to exceed three (3) months.
6. The City desires to have GDU provide this service in accordance with the
terms set forth herein and believes this arrangement to be in the public interest.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. RECITALS:
The foregoing recitals are true and correct and are incorporated herein by
this reference.
2. SCOPE OF WORK:
The City hereby engages GDU, and GDU hereby accepts such
engagement, as an independent contractor, to provide to the City the
following technical support for billing services with respect to the Utility
Systems: (i) MIS, Treasury, GDU and other monthly processing services;
(ii) programming support services; and (iii) mailing and processing
services; (iv) access to operational equipment at GDU's division office.
GDU shall also use good faith efforts to provide data or reports
necessary to assist the City in its conversion to its' own billing system,
at no cost to the City, other than any out of pocket costs.
3. TERM OF AGREEMENT:
GDU will provide the foregoing services to the City for a period of three
(3) months following the date hereof, unless such services are no longer
required by the City and are terminated in accordance with paragraph 6
below, or extended through mutual consent of the parties.
4. COMPENSATION:
GDU shall receive as compensation for all services to be rendered
hereunder the amounts set forth in the rate schedule attached hereto as
Exhibit "A" and by this reference made a part hereof which are to be
paid as follows: (I) GDU shall submit invoices for services performed
hereunder to the City on a monthly basis; and (ii) the City shall remit
payment to GDU for all amounts owing as set forth on the invoices
within twenty (20) days following receipt of the invoices.
Notwithstanding the foregoing, if any additional services are provided
which are not included on the rate schedule attached as Exhibit "A",
GDU will be compensated only for its out of pocket costs of performing
said services (including reasonable overhead expenses), without any
additional profit.
5. LIABILITY:
GDU shall provide the technical billing services at a standard of quality
and accuracy comparable to those services that it provides to its own
operation divisions. If errors or omissions are made as a result of GDU's
billing programs, then the billing invoice shall be corrected and
redelivered to the customer at GDU's sole cost and expense. GDU shall
not be liable to the City for any damages or liabilities arising out of or in
connection with the performance of the services hereunder, except for
any actions constituting gross negligence or willful misconduct.
2
6. TERMINATION OF SERVICES:
From and after the initial 90 day term hereof, either party may terminate
this Agreement upon (30) days prior written notice. Upon such
termination, the City shall immediately pay to GDU all amounts owing for
services rendered throughthe effective date of termination in accordance
with the schedule attached hereto as Exhibit "A"
7. REVENUES:
GDU agrees to transfer revenues on a weekly basis to the City's account
by ACH transfer, or other methods if mutually agreed upon.
8. INDEPENDENT CONTRACTOR RELATIONSHIP:
GDU is being engaged hereunder as an independent contractor and
nothing contained herein shall be construed to create a relationship of
principal and agent, employer and employee, joint venture or partnership
between GDU and the City. Accordingly, no additional benefits shall
accrue.to GDU and/or the City and no withholding shall be undertaken
with respect to fees payable hereunder.
9. NOTICES:
Any notice required or permitted to be given under this Agreement shall
be in writing, and shall be deemed to have been given if delivered by
hand, sent by recognized overnight courier (such as Federal Express) or
mailed by certified or registered mail, return receipt requested, in a
postage prepaid envelope, and addressed as follows:
To GDU at: GENERAL DEVELOPMENT UTILITIES, INC.
2601 South Bayshore Drive
Miami, Florida 33133-5461
Attn: Charles E. Fancher, Jr.
President
copy to: Marcia H. Langley, Esq.
ATLANTIC GULF COMMUNITIES CORPORATION
2601 South Bayshore Drive
Miami, Florida 33133-5461
3
AMN
To City at: City Manager
CITY OF SEBASTIAN
1225 Main Street
Sebastian, Florida 32958
copy to: Charles Ian Nash, Esq.
City Attorney
Frese, Nash & Torpy, P.A.
930 S. Harbor City Blvd.
Melbourne, Florida 32901
Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing shall be
deemed given three (3) days after deposit in U.S. Mail.
10. ASSIGNMENT:
This Agreement is personal to the City and GDU, and accordingly,
neither the City or GDU shall be entitled to assign its rights hereunder.
11. INTERPRETATION:
The terms "GDU" and "CITY" as used herein shall mean and include the
named parties and their respective successors and permitted assigns.
12. MISCELLANEOUS:
(a) This Agreement shall be construed and governed in accordance
with the laws of the State of Florida.
(b) In the event any term or provision of this agreement be
determined by appropriate judicial authority to be illegal or
otherwise invalid, such provision shall be given its nearest legal
meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in
full force and effect.
(c) In the event of any litigation between the parties to this
Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees and court costs, including, but not limited to, fees
and costs incurred at the trial level and all appellate levels. The
parties further mutually agree that any trial shall be before a judge
only, the parties mutually waiving any trial by jury. The provisions
of this subparagraph shall survive the expiration or earlier
I%1
termination of this Agreement co -extensively with other provisions
of this Agreement.
(d) In construing this Agreement, the singular shall be held to include
the plural, the plural shall be held to include the singular, the use
of any gender shall be held to include every other and all genders,
and captions and paragraphs headings shall be disregarded.
(e) This Agreement constitutes the entire understanding and
agreement between the parties with respect to the subject matter
herein, and supersedes all prior written and oral agreements, and
may not be changed, altered or modified except by an instrument
in writing signed by the party against whom enforcement of such
change would be sought.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the day and year first above written.
Signed, sealed and delivered
in the presence of these
witnesses:
Witness:(/1
Print Name:4 6,442„g
Witness:
Kint Name: OlgWo(76k5'AJJ"1e)a�
Signed, sealed and delivered
in the presence of these
witnesses:
Witness.
Print Name: Cr ( J
Witness: _cmc
Printame:V—eAAWeJ.v.dc,,1r- ,c
5
GENERAL DEVELOPMENT UTILITIES,
INC., a Florid or ration
BY:
Charles E. Fancher, Jr.
President
(Corporate Seal)
THE CITY SEBASTIAN, FLORIDA, a
municipal corporpJ+on creettedy e
the laws of/theAtateFlcrf nY a
93
Lohnie R. Pb-%iie'11, Mayor
BEST.
a ryn i s Oran, i y erk
(Seal)
Appro d as to_Yorm and Content:
City Attorney
Utility Billing Support
City of Sebastian
---------------------------------------------------------------
-----------------------------
I. START UP COSTS
One Time Charge $1,000
Forms and Form Design $1,455
II.MONTHLY CHARGES
MIS Processing $944
Treasury Processing (includes
direct transfer of monthly revenues) $47
Sun Bank Processing $532
GDU Processing $64
$1,587
III.
PRONTO POST CHARGES- ACTUAL
$170
Estimate
IV.
MAILING COSTS - ACTUAL
$464
Estimate
V.
OPERATIONAL COSTS
Fixed costs:
* OFFICE LEASE - SHARED
COSTS
$50
* AT&T EQUIPMENT COSTS
- SHARED COSTS
$55
Variable Costs:
* FP&L - ACTUAL - SHARED
COSTS
$118
Estimate
SOUTHERN BELL - ACTUAL
- FULL COSTS
$161
Estimate
ACTION ANS. SERV.- ACTUAL - FULL COSTS
$298
Estimate
V. EXTRA PROGRAMMING SUPPORT
75.00/HR.
EXHIBIT A
ALL CHARGES ARE BASED ON THE FOLLOWING CONDITIONS:
- DEDICATED LINE IS LOCATED AT 2055 SKYLINE DRIVE, VERO BEACH, FL 32960
- CITY AGREES TO USE GDU'S LOCK BOX WITH TRANSFERS OF REVENUES BEING COMPLETED
ON A WEEKLY BASIS
- CITY PROVIDES GDU WITH A VOIDED CHECK FOR THE PURPOSE OF SETTING UP THE
DIRECT ACH TRANSFER PROCEDURE
- CUSTOMER PAYMENTS ARE MAILED TO P.O. BOX 025233 MIAMI, FL 33102-5233
- CITY PROVIDES GDU WITH LOGO FOR USE ON ENVELOPES FOR CITY
- NO CHANGES IN BILLING FORMS WITH THE EXCEPTION OF COLOR AND NAME OF CITY
*' SHARED COSTS ARE BASED ON 508 OF ACTUAL GDU COSTS.
THESE OPERATIONAL COSTS ARE SUBJECT TO CHANGE IF GDU DOES NOT REMAIN AT OFFICE LOCATION
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