HomeMy WebLinkAbout1992 Settlement Agreement (GDC Conveyance Parcels)G DG
THIS AGREEMENT is made and enter d into this 16th day of
January 1.992, by and between THE CITY F SEBASTIAN (the "City")
and GENERAL DEVELOPMENT CORPORATION, a elaware corporation, as
Debtor -in -Possession ("GDC") under U.S Bankruptcy Court (the
"Court") Case No. 90-12231-BKC-AJC (the 'Bankruptcy Case").
W I T N E S S E T
WHEREAS, GDC is the owner of certain property described in
Exhibit "A" attached hereto (the "GDC Conveyance Parcels");
WHEREAS, GDC may have certain obli ations to the City more
particularly described in Exhibit "B" attached hereto (the "GDC
Obligations");
WHEREAS, GDC and the City have agreed to the conveyance of the
GDC Conveyance Parcels to the City and tc other items as set forth
below all in resolution of certain matte s between themselves, as
herein provided, and desire to confirm certain other agreements and
understandings between themselves.
NOW THEREFORE, in consideration of tie premises, and for other
good and valuable consideration, the r ceipt and sufficiency of
which is hereby acknowledged, the partie , intending to be legally
bound, hereby agree as follows:
1. Recitals. The above recitals are true and correct and
are hereby incorporated by reference as if fully set forth herein.
2. Conveyance. GDC hereby agrees to convey the GDC
Conveyance Parcels to the City, which the City agrees to accept as
its treatment under the plan of reorganiz tion of GDC (the "Plan"),
in full and complete satisfaction of th proof of claim filed by
the City in the Bankruptcy Case (the "Pr of of Claim") (the City
hereby waiving and releasing any right the City may have to receive
any other or additional distribution under the Plan), and,
additionally, in consideration for which the City agrees: (i) to
irrevocably and unconditionally release GDC and its successors from
any and all of the GDC Obligations, inclu ing, but not limited to,
any obligations associated with, connected to or arising from the
Proof of Claim (which shall include as applicable, the release by
the City of the bonds posted by GDC wit i the City in connection
with the GDC Obligations (the I'Bondsll)) and (ii) to assume the
maintenance and operational responsib lities and obligations
included within the GDC obligations.
3. Title. At the closing under this Agreement, the City
shall take title to the GDC Conveyanc(
following (the "Permitted Exceptions"):
(a) ad valorem real estate
Parcels subject to the
for 1992 and
subsequent years;
(b) all laws, ordinances and governmental
regulations, including, but not limited to, all
applicable building, zoning, land u e and environmental
ordinances and regulations;
(c) restrictions, reserva ions, easements,
covenants, agreements, limitation and other matters
appearing of record; and
(d) matters which would be dis losed by an accurate
survey of the GDC Conveyance Parcel .
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4. Title Examination of GDC Conveyance Parcels. Within
twenty (20) days from the date of this Agreement, the City shall
procure, at its sole cost and expense, a commitment (the
"Commitment") for title insurance issued by a nationally recognized
title company for an owner's ALTA Form B Marketability title
insurance policy for the GDC Conveyance Parcels. The City will
have ten (10) business days following receipt of the Commitment
within which to examine same.
If, upon the examination of the Commitment, the City finds
title to be defective (i.e. matters which render title unmarketable
in accordance with the standards of the Florida Bar and are not
Permitted Exceptions), the City shall, by no later than the
expiration of such ten (10) day examination period, notify GDC, in
writing, specifying the defect(s); provided that if the City fails
to give GDC written notice of defect(s) before the expiration of
said ten (10) day period, the defects shown in the Commitment
shall, anything in this Agreement notwithstanding, be deemed to be
waived as title objections to closing this transaction and GDC
shall be under no obligation whatsoever to take any corrective
action with respect to same nor to warrant title to same in its
special warranty deed of conveyance. I£ the City has given GDC
timely written notice of defect(s) and the defect(s) render the
title other than as required by this Agreement, GDC shall use its
reasonable efforts to cause such defects to be cured by the date
of closing. In no event shall GDC be obligated to bring suit or
to expend any sums of money to buy-out or settle any such lien, or
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any other encumbrance or claim against the GDC Conveyance Parcels
or to cure any other title defect. At GDC's option, the date of
closing may be extended for a period not to exceed thirty (30) days
for purposes of eliminating any title defects. In the event that
GDC does not eliminate all timely raised title defects as of the
date specified in this Agreement for closing, as the same may be
extended under the preceding sentence, the City shall have the
option of either: (i) closing and accepting the title "as is",
without offset or deduction in consideration given to the City, or
(ii) cancelling this Agreement, whereupon both parties shall be
released from all further obligations under this Agreement.
Notwithstanding the foregoing, in the event a title defect or
objection affects only a portion of the GDC Conveyance Parcels (the
"Title Defect Parcel"), and the value of the Title Defect Parcel
is mutually agreed by the parties to be ten percent (10%) or less
of the overall value of the Conveyance Parcels, then, unless GDC
elects and is unable to cure such title defect, and subject to the
City's reasonable approval, GDC may select and substitute a
different parcel of land owned by GDC in the City of Sebastian of
reasonably equivalent value for the Title Defect Parcel, which
shall- become part of the Conveyance Parcels.
5. Construction of Uncompleted Portions of units 16 and 17.
The City hereby agrees that GDC and its successors and/or assigns,
at any time whatsoever in the future, shall have the absolute right
to develop the remaining unconstructed portion of the Plats of Unit
16 and Unit 17 in accordance with the subdivision standards in
4
effect at the time that Unit 16 and Unit 17, as applicable, were
platted, and the requirements of that certain Agreement dated as
of August 15, 1979, between the City and GDC (the 1179 Agreement"),
and in no event shall any higher or different standards or
requirements ever be imposed by the City in connection with, or as
a condition to, the development of said Unit 16 or Unit 17 (even
if said Unit 16 or Unit 17, or any portion(s) thereof, are
replatted, no higher or different standards or requirements shall
be imposed. Notwithstanding anything to the contrary contained in
the foregoing, if any portion of Units 16 or 17 are replatted, and
the purpose of replatting is other than to relocate or widen roads,
or to locate or relocate stormwater drainage, the right of way and
road and drainage requirements and standards in effect at the time
that Unit 16 and Unit 17, as applicable, were platted, and the
requirements of the 79 Agreement, as aforedescribed, shall be
applicable, but the developer of said property (whether GDC or a
successor thereof) shall otherwise be obligated to conform to all
other applicable current standards or requirements). Without
limiting the foregoing, the City acknowledges and agrees that the
City shall never require any further dedication, conveyance or
designation of land for parks, recreational or other public use to
Unit 16, Unit 17, or any other plat already accepted by the City
(a "Prior Plat") which is not already set forth in the applicable
plat; provided, however, if in connection with the development of
any Prior Plat, the appropriate governmental agency requires that
any parcel of land within the Prior Plat be used for drainage
0
purposes and such parcel has not already been designated for such
purpose, GDC will convey such parcel to the City upon the condition
that the City will assume maintenance and operation with respect
to such Parcel upon such conveyance.
6. Fleming Street Extension. GDC agrees that, prior to
developing the applicable portion of Unit 16, the developer of said
property (whether GDC or a successor thereof) shall be obligated
to replat said portion to create a right-of-way to extend Fleming
Street from Chesser's Gap to the east boundary of Unit 16 (Block
517). It is the City's intention to ultimately extend Fleming
Street from said point to U.S. #1.
7. Ouit-claim Assignment of Easements on Shiloh Ranch
Property and the Boy Scouts of America Property. At closing, GDC
shall assign to the City by a quit -claim assignment, and on a non-
recourse and non-exclusive basis, its rights under the grant of
Easement between Shiloh Youth Ranch, Inc. and GDC recorded in
Official Records Book 654, Page 1228, and Gulf Stream Council,
Inc., Boy Scouts of America and GDC, recorded in Official Records
Book 574, Page 2698.
8. Taxes. All outstanding ad valorem real property taxes,
interest payments, and penalties with respect to the GDC Conveyance
Parcels shall be paid by GDC prior to closing.
9. GDC 's Representations. GDC represents to the City as
follows:
(a) Authority of GDC. GDC is a corporation duly
organized, validly existing and in good standing under
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the laws of the State of Delaware, and is duly authorized
to transact business in the State of Florida. This
Agreement is binding on GDC and enforceable against GDC
in accordance with its terms subject to the provisions
of paragraph 14 below.
(b) FIRPTA. GDC is not a "foreign person" within
the meaning of the United States tax laws and to which
reference is made in Internal Revenue Code Section
1445(b)(2). At closing, GDC shall deliver to the City
a certificate to such effect.
10. Citv's Representations. The City represents to GDC as
follows:
(a) Investigation. The City is a knowledgeable and
sophisticated owner of real estate properties. The City
has previously reviewed and considered the nature of this
transaction and investigated the GDC Conveyance Parcels
and all aspects of the transaction. The City has
determined that the GDC Conveyance Parcels are
satisfactory to the City in all respects and the City is
acquiring the GDC Conveyance Parcels in "as is"
condition. The City has and will rely solely on the
City's own independent investigations and inspections,
and the City has not relied and will not rely on any
representation of GDC other than as expressly set forth
in this Agreement (and provided that the City understands
and agrees that none of the representations of GDC shall
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survive the closing nor are intended to be relied upon by the
City after closing). The City further acknowledges and agrees
that, except for the specific representations made by GDC in this
Agreement, GDC has made no representations, is not willing to
make any representations, nor held out any inducements to the
City other than those (if any) exclusively set forth in this
Agreement; and GDC is not and shall not be liable or bound in any
manner by any express or implied warranties, guaranties,
statements, representations or information pertaining to the GDC
Conveyance Parcels, except as may be specifically set forth in
this Agreement.
(b) City's Authority. The execution, delivery and
performance of this Agreement by the City have been duly
authorized, and this Agreement is binding on the City and
enforceable against the City in accordance with its terms. No
consent of any other person or entity to such execution, delivery
and performance is required.
11. Default. In the event of a default by either party under
this Agreement, the non -defaulting party shall be entitled to all
rights and remedies available at law or in equity.
12. Closing Costs.
(a) The City and GDC shall each be responsible for one-half
of the following costs: (i) the cost associated with issuance of
the Commitment, the cost of obtaining any title insurance policy
updates or reports on the GDC
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Conveyance Parcels (all of which shall be calculated at
minimum risk rate), and the premiums and any other
related fees and costs for any owner's title insurance
policy and/or report, (ii) conveyance and clerk's
recordation fees for recording any deeds, easements and
any and all other documents incident to consummation of
the transaction contemplated hereby, (iii) the state
documentary stamps and surtax due, if any, on the special
warranty deed and easements to be delivered pursuant to
this Agreement; and (iv) the recording costs of documents
necessary to clear title at closing.
The settlement contemplated by this Agreement and the
conveyance of the GDC Conveyance Parcels to the City is a transfer
pursuant to a plan of reorganization and therefore no documentary
stamp taxes (or surtax) is payable on the deed of conveyance
pursuant to 11 U.S.C. §1146.
13. Closinv. Subject to other provisions of this Agreement
for extension, the closing shall be held on or before February 28,
1992, at the offices of the attorneys for the City, Frese, Fallace,
Nash & Torpy, P.A., at 930 S. Harbor City Blvd., Melbourne, Florida
32901._
At closing, GDC shall execute and/or deliver (as applicable)
to the City the following closing documents:
(a) a special warranty deed' conveying the GDC
Conveyance Parcels subject to the Permitted Exceptions
(and any other matters either consented to or not timely
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objected to by the City after the City's review of title
pursuant to paragraph 4 above);
(b) an affidavit of exclusive possession with
respect to the GDC Conveyance Parcels;
(c) a "non -foreign" affidavit or certificate
pursuant to Internal Revenue Code Section 1445;
(d) a mechanic's lien affidavit with respect to the
GDC Conveyance Parcels; and
(e) a corporate resolution and/or such other
evidence of authority and good standing with respect to
GDC as may be reasonably required by the title insurance
company issuing title to the City;
At closing, the City shall execute and/or deliver (as
applicable) to GDC:
(a) a release in favor of GDC with respect to all
GDC Obligations, including, but not limited to, the
release of the Bonds, in form and content acceptable to
GDC;
(b) written acknowledgment of the City's assumption
of obligations as described in paragraph 2 above, in form
and content acceptable to GDC;
(c) such documents as requested by GDC to withdraw
or satisfy the City's Proof of Claim in the Bankruptcy
Case with prejudice to any refiling or assertion of such
claim in the Bankruptcy Case;
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(d) a document, in recordable form, setting forth
the rights granted to GDC in paragraph 5 above, in form
and content acceptable to GDC; and
(e) an appropriate resolution satisfactory to GDC
confirming proper authorization for the City's execution
of this Agreement and consummation of the transactions
contemplated hereby (including, without limitation, the
City's assumption of the GDC obligations, as herein
provided).
At closing, the parties shall each execute such other
documents as are reasonable necessary or appropriate to consummate
the transactions contemplated by this Agreement.
14. Assignability. None of the parties to this Agreement
shall be entitled to assign their rights hereunder.
15. Approval. The parties acknowledge and agree that this
Agreement is subject to the approval of GDC management and GDC
obtaining approval from GDC's Unsecured Creditors Committee (the
"Committee") and the Court of this Agreement and the transactions
contemplated hereby, including the conveyance to the City of the
GDC Conveyance Parcels free and clear of all liens and encumbrances
(other than the Permitted Exceptions). If for any reason the Court
has not approved this Agreement by January 31, 1992, this Agreement
shall be terminated, and both parties released from all further
obligations under this Agreement, unless further extended by mutual
written agreement of the parties.
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16. Notices. Any notices required)
under this Agreement shall be in writii
have been given on the date of delivery,
by recognized overnight courier (such as
by written telecommunication (such as a
after mailing, if mailed by certified c
receipt requested, in a postage prepaid
follows:
If to the City at:
City of Sebasti
P. O. Box 78012
Sebastian, Flor
Attn: Mr. Rober
Telecopy No. (4(
or permitted to be given
and shall be deemed to
delivered by hand, sent
Express), or sent
lecopy of fax) or 3 days
registered mail, return
, and addressed as
.a 32978
S. McClary, City Manager
1 589-5570
with a copy to: Richard E. Torp
Frese, Fallace, Nash & Torpy, P.A.
930 S. Harbor C17)
ty Blvd.
Melbourne, Florda 32901
Telecopy No. (4 951-3741
If to GDC at: General Develop ent Corporation
2601 South Bays ore Drive
Miami, Florida 33133
Attn: Saul Sac , Esquire
Telecopy No.: 305) 859-4360
with a copy to: General Develop ent Corporation
9801 South Fede al Highway
Port St. Lucie, Florida 34952
Attn: Ralph (CLP) Cain, III
Assistan Vice President
Communitr Affairs
Telecopy No.: 407) 335-5926
copies of all notices
shall be given to:
Maguire, Voorhi
2 South Orange
Orlando, Florid
Attn: Dwight D
Telecopy No.:
12
& Wells, P.A.
1 32801
. Saathoff, Esq.
(407) 423-8796
17. 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. [NOTE: THIS PARAGRAPH IS PROVIDED
FOR INFORMATIONAL PURPOSES PURSUANT TO SECTION 404.056(8), FLORIDA
STATUTES, (1988).]
18. Miscellaneous.
(a) The City acknowledges that GDC shall endeavor
to consult with the Committee appointed in the jointly
administered Chapter 11 case of GDC, and such Committee's
counsel, with respect (but not limited) to the Release.
(b) Nothing contained in this Agreement shall be
construed as an acknowledgment or agreement from GDC or
the City as to the actual amount owing by GDC to the City
under the GDC Obligations. The parties agree that if the
closing does not occur for any reason, neither party
shall have the right to admit this Agreement, or any oral
or written statements made in connection with the
negotiation, drafting or execution of the Settlement
Agreement, into any proceeding (judicial, administrative
or otherwise) arising in connection with or in any way
related to the GDC Obligations.
13
(c) Pursuant to Paragraph 2, the City, as of
closing, assumes the maintenance responsibility
obligations included with the GDC Obligations.
(d) This Agreement shall be construed and governed
in accordance with the laws of the State of Florida. 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 one of the parties hereto.
(e) 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.
(f) In the event of any litigation between the
parties under this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees and court costs
at all trial and appellate levels.
(g) 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 paragraph headings shall be disregarded.
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(h) All of the Exhibits attached to this Agreement
are incorporated in, and made a part of, this Agreement.
(i). Unless expressly set forth herein, the terms
and provisions of this Agreement shall not survive the
closing and such terms and provisions shall be deemed
merged into the special warranty deed and extinguished
at closing.
(j) Time shall be of the essence for each and every
provision of this Agreement.
(k) Neither this Agreement nor any notice or
memorandum of this Agreement shall be recorded in any
public records.
19. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the
subject matter hereof and there are no other agreements, repre-
sentations or warranties other than as set forth herein. This
Agreement 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 and unless approved by the Court.
This Agreement shall be binding upon the parties hereto and their
respective successors and permitted assigns.
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AXECUTED as of the date first
terparts, each of which shall be
constituting only one agreement.
Signed in the presence of:
(� 'to the ity)
Approved as to,/form and
legal sufficiency:
canaries lan Nasn
City Attorney
written in several coun-
an original, but all
GENERAL DEVELOPMENT CORPORATION,
a Delaware corporation, as
Debtor in Possession under
U.S. Bankruptcy Court Case
No. 90 12231-BKC-AJ7
By:
Ti
(Corporate Seal)
THE CITY OF SEBASTIAN
By:_'�IA
Name:
Title:
ATTEST!
CMC
16
(Seal)
City Clerk
EXHIBIT A
SEBASTIAN
Miscellaneous Lotsti
Tracts
Tracts
1.
Unit
1
Block
12
Lot 2
26.
Unit
2.
Unit
1
Block
12
Tract
H
8
3.
Unit
1
Block
12
Tract
I
Block
4.
Unit
1
Block
14
Tract
F
264
5.
Unit
1
Block
17
Tract
E
Tract
6.
Unit
1
Block
21
Tract
D
7.
Unit
1
Block
41
Tract
C
33.
8.
Unit
2
Block
65
Tract
C
Unit
9.
Unit
4
Block
121
Tract
Y
11
10.
Unit
10
Block
208
Lot 4
14
Block
11.
Unit
10
Block
268
15
Block
488
12.
Unit
11
Block
282
Tract
B
Tract
13.
Unit
11
Block
364
Lot 19
Tract
A
14.
Unit
it
Block
365
Lot 12
15.
Unit
16
Block
559
Tract
R
16.
Unit
16
Block
559
Tract
S
17.
Unit
16
Block
559
Tract
T
18.
Unit
16
Block
560
Tract
P
19.
Unit
17
Block
445
Tract
B
20.
Unit
17
Block
595
Tract
W
21.
Unit
17
Block
598
Tract
U
22.
Unit
17
Block
599
Tract
V
23.
Unit
17
Block
606
Tract
T
24. Schumann Lake and Island
Public Service Tract P.S.
25.
Unit
4
Block
73
Remaining
26.
Unit
8
Block
193
27.
Unit
8
Block
223
Tract
C
28.
Unit
10
Block
211
Tract
A
29.
Unit
10
Block
264
Tract
C
30.
Unit
10
Block
267
Tract
B
31.
Unit
10
Block
300
32.
Unit
11
Block
282
Tract
A
33.
Unit
11
Block
347
Tract
E
34.
Unit
11
Block
372
Tract
C
35.
Unit
11
Tract
D
36.
Unit
14
Block
507
Tract
B
37.
Unit
15
Block
488
Tract
G
38.
Unit
17
Block
604
Tract
Q
39.
Unit
17
Tract
A
of Hardee Park
acent to Block 399)
acent to Block 441)
Tracts and Lots
Tracts
40. Unit 13
41. Unit 13
42. Unit 13
43.
Unit
17
Block
462
44.
Unit
17
Block
574
45.
Unit
17
Block
574
46.
Unit
17
Block
580
47.
Unit
17
Block
588
48.
Unit
17
Block
593
49.
Unit
17
Block
599
50.
Unit
17
Block
602
51.
Unit
17
Block
613
52.
Unit
17
Block
616
Lots
53.
Unit
17
Block
449
54.
Unit
17
Block
451
55.
Unit
17
Block
462
56.
Unit
17
Block
570
57.
Unit
17
Block
578
58.
Unit
17
Block
579
59.
Unit
17
Block
580
60.
Unit
17
Block
589
2
Tract A
Tract B
Tract D
Tract X
Tract H
Tract I
Tract Y
Tract K
Tract 0
Tract M
Tract P
Tract R
Tract S
to Drainage
acent to Block 320)
acent to Block 330)
acent to Block 333)
115 'Drainage r -o -w)
Lots 1 to 11
Lots 1 to 4
Lots 11 a 12
Lots 4 to 19
Lots 1 to 16, 19 and 20
Lots 12 to 14, 19 to 21
Lots 1 toand 19
Lots 4 and 5
EXHIBIT nBn
(1) All obligations of GDC to construct
streets and drainage facilities
Sebastian, including, without limit
GDC under that certain Agreement dat
GDC and the City, except that the fc
GDC's obligations with respect to P:
maintain and operate all
:)cated in the City of
tion, all obligations of
t
are postponed pursuant to paragraph
Agreement to which this Exhibit "B"lis
(2) Any liability or obligation (i) rel
matters set forth in item (1) above
the Proof of Claim filed by the City
described therein.
Lugust 15, 1979 between
oing shall not include
Units 16 and 17, which
5 of the Settlement
attached hereto.
ted in any manner to the
and/or (ii) set forth in
)r related to the matters