HomeMy WebLinkAbout09291993 City of Sebastian
POST OFFICE BOX 780127 [3 SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
AGENDA
SUBJECT: )
Public Hearing pursuant to )
Chapter 180, F.S. )
on GDU acquisition )
)
APPROVED FOR SUBMITTAL BY: )
city Manage~J~~ /~'~~~ )
FORM
Agenda No. q~,
Dept. Origin Finance
Date Submitted ~
For Agenda Of ~ ~/[~/~.B
Exhibits:
~[5~Proposed Purchase & Sale
Agreement
EXPENDITURE AMOUNT APPROPRIATION
REQUIRED: N/A BUDGETED: N/A REQUIRED: N/A
SUMMARY .STATEME~
In continuance of the city's notice of intent to purchase the GDU
water and wastewater system, a draft purchase and sale agreement
has been distributed to Council.
The GDU acquisition task force and counsel are reviewing the
draft purchase agreement and will propose changes which will be
presented to council at a later date.
RECOMMENDED ACTION
None. For your information.
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CITY OF SEBASTIAN, FLORIDA/
GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into this day of
, 1993, by and between the CITY OF SEBASTIAN, FLORIDA
("CITY"), GENERAL DEVELOPMENT UTILITIES, INC., a corporation
authorized to do business in the State of Florida ("UTILITY"), and
ATLANTIC GULF COMMUNITIES CORPORATION, a corporation authorized to
do business in the State of Florida ("AGCC").
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 UTILI'TY'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:
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. The Purchased Assets
also include certain sites listed in Exhibit "7" hereof which AGCC
hereby agrees to convey to CITY.
SECTION 3. PURCHASED ASSETS. On the Closing Date, as defined
below, UTILITY (or AGCC as specified below) 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. Ail real property and interests in
real property (the "Property"), owned by UTILITY, as described in
Exhibit "1" attached hereto and made a part hereof, whereupon all
water production, storage, treatment, transmission, and dis-
tribution 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. The following assets
owned by UTILITY: all water production, treatment plant, storage,
treatment, transmission, distribution, pumping, and other water
facilities 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 utility business of UTILITY.
3.3. Equipment. Ail equipment, vehicles, tools, parts,
laboratory equipment, office equipment and other personal property
owned by UTILITY located on the real property and/or utilized by
UTILITY, including, but not limited to, those items more
particularly described in Exhibit "2" attached hereto and
incorporated into this Agreement.
3.4. Other Riqhts. Ail 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
(collectively referred to as the "Easements"). The Easements are
more particularly described in Exhibit "3" attached hereto and
incorporated in this Agreement.
3.5. Vendor Contracts. Ail right, title and interest of
UTILITY in and to any and all vendor contracts, except those that
CITY expressly rejects prior to the Closing Date. Copies of vendor
contracts are attached hereto as Exhibit "4" and incorporated by
reference herein.
3.6. Customer and SuDDlier Lists. Ail current customer
and supplier lists and records, as-built surveys, water and sewer
design plans, plats, engineering and other drawings, designs, blue-
prints, plans and specifications, accounting system operating
budgets for the past two (2) years and customer records, water and
sewer system monthly operating reports for the past two (2) years,
and all other information and business records in the possession of
UTILITY pertaining to operation of the System.
3.7. Permits and ADDrovals. Ail permits and other
governmental authorizations and approvals necessary to operate and
maintain the System in accordance with all governmental
requirements, as described in Exhibit "5" attached hereto and
incorporated by reference herein. UTILITY shall also be
responsible for obtaining an acceptable consumptive use permit for
the System prior to closing. 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, which are specifically documented by any regulatory
agency prior to the date on which the System is to be transferred
to CITY.
3.8. Choses in Action. Ail choses in action, 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 DeDosits. Cash to be paid by cashier's
check or wire transfer in an amount which represents the customers'
water and sewer service security deposits and 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 resul~
of the transfer of such customer deposits to CITY.
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. AGCC - Owned Sites. Certain sites not set forth
in Exhibits 1 and 3 are owned by AGCC. These sites are necessary
for the operation and maintenance of the Water and Wastewater
System, are more particularly described in Exhibit "7" attached to
and incorporated in this Agreement, and shall be conveyed as a part
of the Purchased Assets to CITY by AGCC on the Closing Date. The
conveyance of these sites by AGCC shall likewise be subject to all
the same requirements as are applicable to the Purchased Assets as
set forth in this Agreement, and AGCC shall be obligated in the
same manner as UTILITY to convey said sites. Consideration for
conveyance of these sites is included in the Purchase Price.
3.12. Computer Software. Computer software as deter-
mined by CITY which is or was used in the course of day to day
operations of UTILITY, including, but not limited to, billing
programs and accounting programs. UTILITY shall obtain any
approval required of any person who has any proprietary rights in
the computer software. CITY shall have the right to refuse to
accept the transfer of any computer software to the extent that
CITY, in its sole discretion, determines is not needed by CITY.
Such rejection may be made by CITY on an item-by-item basis.
3.13. L_~eases. UTILITY agrees to assign to CITY,
effective the Closing Date, any leases set forth in Exhibit "9"
attached to and incorporated in this Agreement. UTILITY shall
obtain, at its expense, the approval of any lessor pursuant to any
of the leases to effectuate the assignment of the leases to CITY.
3.14. Inventory. The inventory set forth in Exhibit
"2A" attached hereto and made a part hereof, which shall consist of
all inventory currently on hand owned by UTILITY for the
maintenance and operation of the System, including all pipes,
chemicals, supplies and other items incidental to the maintenance
and operation of the System.
SECTION 4. ADpITIONAL RESPONSIBILITIES OF UTILITY. UTILITY
shall provide CITY with three hundred twenty (320) person hours of
management consulting time from individual(s) named by CITY over a
one year period following the Closing Date on an as-needed basis.
If all time is not utilized within said one year period, no future
obligation with respect thereto shall exist. 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
specific out-of-pocket data processing costs. 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. CITY shall have sixty (60) days
from the date of execution of this Agreement with completed
Exhibits to obtain a title commitment (the "Commitment") for the
Property described in Exhibits "1," "3," and "7" of this Agreement.
CITY's attorneys shall issue the Commitment for an Owners ALTA Form
B Marketability Policy in favor of CITY in an amount and from a
title company as determined by CITY in its sole discretion.
UTILITY shall bear the cost of the title insurance policy.
6.1. Exceptions to Title. The Commitment shall show
UTILITY or AGCC to be (i) vested with fee simple title to the
Property shown on Exhibits "1," "3" and "7" and (ii) vested with
valid easement interests for the Property described on Exhibits
"1," "3" and "7," 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;
and
(5) Ail 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 whidh
will prevent or hinder the present use of the Property.
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 forty-five (45) days after receipt' of said commitment,
UTILITY agrees to use all due diligence to perfect title and shall
have a period of forty-five (45) days from notification of such
defects within which to do so. If CITY shall fail to notify
UTILITY within the aforesaid forty-five (45) 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 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). Notice of such election-shall be given by
CITY to UTILITY, in writing, by either registered or certified
mail, within the time herein prescribed. It shall be the
obligation of UTILITY to purchase, at its expense, the title
insurance policies issuable pursuant to such title commitments.
All related costs, including searching, abstracting, and attorney
fees incurred through the issuance of the policy, shall be
UTILiTY'S expense.
SECTION 7. SURVEY. UTILITY and AGCC agree, at their expense,
to prepare and provide a current survey of all the Property set out
in Exhibits "1," "3," and "7" prepared by a Florida licensed
surveyor in accordance with applicable law, which survey will be
prepared in accordance with, and certified to CITY, 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
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line or onto a utility strip, evidence of overlaps along a property
line, violation of restrictions, set back lines, possession incon-
sistent with the Property boundaries or any other such defect,
shall be treated as a title defect under Subsection 6.2. above.
CITY shall have sixty (60) days after receipt of said survey to
furnish notice to UTILITY or AGCC, as appropriate, 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 or AGCC, as appropriate, within the aforesaid
sixty (60) days, CITY shall be deemed to have accepted the status
of title shown on the survey.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF UTILITY AND
AGCC. To induce CITY to enter into this Agreement, UTILITY and
AGCC represent and warrant that, as of the Closing Date:
8.1. Orqanization, Standinq And Power. UTILITY and AGCC
are corporations, duly organized, .validly existing, and in good
standing under the laws of the state of its formation, and are
authorized to do business in the State of Florida. UTILITY and
AGCC have 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 Aqreement. UTILITY and AGCC each
have the power and authority to execute and deliver this Agreement
and to carry out their respective obligations hereunder. This
Agreement has been duly authorized by all action required to be
taken by UTILITY and AGCC, has been duly executed and delivered by
UTILITY and AGCC, and constitutes a' valid and legally binding
obligation of UTILITY and AGCC, enforceable in accordance with its
terms.
8.3. Good and Marketable Title. Subject to the Per-
mitted Exceptions, UTILITY (or AGCC, as appropriate) has good and
marketable title to the Purchased Assets. Notwithstanding anything
contained herein to the contrary, the Property shown on Exhibits
"1," "3," and "7" as easement parcels are not subject to the fee
simple ownership requirements as set forth in Subsection 6.1
hereof. UTILITY (or AGCC, as appropriate) shall transfer, convey
and assign to CITY at Closing an enforceable easement interest for
each of the easement parcels shown on Exhibits "1," "3," and "7" 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 "1," "3," and "7" 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 (or AGCC, as
appropriate) as set forth in that Subsection. At Closing, UTILITY
(or AGCC, as appropriate) shall assign to CITY all of its easement
interests in the Property regardless of whether such easement is
listed on Exhibit "1," "3," or "7."
8.4. No Liens or Encumbrances. Except as otherwise
specifically set forth herein, 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 Secre-
tary of State.
8.5. Litiqation. Neither UTILITY nor AGCC has any
actions, suits, or proceedings at law or in equity, pending or
threatened against UTILITY or AGCC before any federal, state,
municipal or other court, administrative or governmental agency 6r
instrumentality, domestic or foreign, which affect or will affect
the System or any of the Purchased Assets or UTILITY's or AGCC's
right and ability to make and perform this Agreement; nor is
UTILITY or AGCC aware of any facts which to its knowledge are
likely to result in any such action, suit or proceeding. Neither
UTILITY nor AGCC is 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 and AGCC agree and warrant that they 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
or AGCC shall be initially disclosed within ten (10) days following
execution of this Agreement, and shall be supplemented each thirty
(30) days thereafter, as well as on the Closing Date.
8.6. Appropriate Zoninq. The present zoning of the
property described in Exhibit "1" does not prohibit the operation
of the System on the subject property.
8.7. Contracts and Aqreements. Attached hereto as
Exhibit "6" and by reference made a part hereof is a complete and
accurate listing of the all the franchise rights, contracts,.
service agreements, developers' agreements and leases to which
UTILITY (and not AGCC) is a party. CITY agrees to assume, and
UTILITY shall assign to CITY, all agreements set forth on Exhibit
"6" effective upon the Closing Date. It is further agreed by the
parties hereto that no other agreements to which AGCC or UTILITY
are a party for the provision of water or wastewater service to any
lot or potential customer not yet connected to the System as of the
Closing Date are being assumed by or are binding upon CITY
including, but without limitation, any lot sales or installment
sales agreements.
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AGCC and UTILITY jointly and severally agree to defend, indemnify
and hold CITY harmless from and against all claims, demands,
liabilities, losses, damages, expenses, costs, including, but
without limitation, reasonable attorneys' fees at trial and all
appellate levels, arising from:
(1) Any breach or default in the performance of any
of the covenants which AGCC and/or UTILITY is to perform hereunder.
(2) Any contracts, agreements or obligations of
AGCC and/or UTILITY not set forth in Exhibit "6" hereof and
specifically assumed by CITY pursuant to other provisions of this
Agreement.
(3) Any reasonable attorneys' fees and cost~
incurred in connection with the enforcement of this indemnity, at
trial and in all appellate actions.
Unless set forth in Exhibit "6" hereof, all agreements to which
AGCC and/or UTILITY are both a party have been rescinded,
terminated, and voided such that CITY is not bound thereby.
~..~. New Aqreements. 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
unreasonably withheld.
8.9. Aqreements for Construction. With respect to any
outstanding agreements for construction under which UTILITY and/or
AGCC has previously received cash deposits or cash contributions in
exchange for UTILITY's and/or AGCC's willingness to authorize the
planning, permitting, construction, installation or extension of
the water and/or wastewater system located in Sebastian, UTILITY
and/or AGCC has fully discharged all obligations on its part for
such planning, permitting, construction, installation or extension,
and UTILITY and/or AGCC has no further obligations, liabilities or
expenses for the future planning, permitting, construction,
installation or extension of said system under said agreements.
8.10. Leases. Except as may be listed in Exhibit "9"
hereof, none of the Water and Wastewater System or the Purchased
Assets are subject to any interest of any lessor or lessee and will
not be so subject as of the Closing Date.
8.11. No Contracts in Default. There are no existing
contracts or commitments with respect to the Water and Wastewater
System except for those listed in Exhibit "6" hereof and UTILITY is
not aware of any defaults of any parties to any such agreements.
8.12. 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 Water and Wastewater System.
8.13. No Record Violations. The use of the System on
the property set out in Exhibits "1" and "3" is consistent with and
does not violate any restrictions or conditions of record.
8.14. Absence of Chanqe~. Since the date of execution
of this Agreement, UTILITY shall not:
(1) undergo any change in its condition (financial
or otherwise) of properties, assets, liabilities, business ~r
operations other than changes in the ordinary course of business
which have not been, either in any case or in the aggregate,
materially adverse;
(2) declare, set aside, make or pay any dividend or
other distribution in respect of its capital stock or purchase or
redeem, directly or indirectly, any capital stock;
(3) incur any indebtedness for borrowed money or
issue or sell any debt securities;
(4) suffer any damage, destruction or loss, whether
or not covered by insurance, adversely affecting its properties,
assets, or business;
(5) mortgage, pledge or subject to any lien, lease,
security interest or other change or encumbrance any of i~s
properties or assets, tangible or intangible;
(6) acquire or dispose of any assets or properties
of material value, except in the ordinary course of business;
(7) forgive or cancel any debts or claims, or waive
any rights, except in the ordinary course of business;
(8) enter into any material transaction, other than
in the ordinary course of business;
(9) incur any liability or obligation (whether
absolute, accrued, contingent or otherwise), except in the ordinary
course of business;
liability;
(10) make any prepayment of any obligation or
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(11) receive any notice of termination of any
contract, lease or other agreement;
(12) make any change in accounting policies or
practices, including any change in depreciation or amortization
policy.
8.15. Financial Statements. Within sixty (60) days of
execution hereof, UTILITY, at its expense, agrees to provide to
CITY a true, correct and complete copy of an audit prepared by
, an independent certified
public accountant firm, for the period January 1, 1992 through
December 31, 1992. The audit and the annual reports shall be
collectively referred to as the "Audit." The Audit fairly presents
for the System only the financial condition and results o~
operations of UTILITY at the dates and for the periods of time
thereof and discloses all of the assets, liabilities, net worth,
revenues, and expenses of UTILITY existing as of the dates and for
the periods of time thereof and were prepared in accordance with
generally accepted accounting principles, applied on a basis
consistent with all prior periods. Except as set forth in the
Audit, UTILITY has had no material liability, whether known or
unknown, absolute, accrued, contingent or otherwise, or whether due
or to become due, which was not reflected or reserved against in
the Audit.
8.16. Disclosure. No representation or warranty made by
UTILITY or AGCC, to the best of UTILITY'S or AGCC'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.
8.17. Survival of Covenants. UTILITY and AGCC agree
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.
8.18. FIRPTA. Neither UTILITY nor AGCC are 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 and
AGCC shall deliver to CITY a certificate to such effect.
SECTION 9. CONDUCT PENDING CLOSING.
covenant that pending the closing:
UTILITY and AGCC
9.1. Business Conduct. Except as otherwise consented to
in writing by CITY, for the period beginning on the date of
execution of this Agreement and ending on the Closing Date, UTILITY
and AGCC shall:
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(1) carry on their businesses 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 their 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
them;
(4) perform in all material respects all of their
obligations under agreements, contracts and instruments relating t~
or affecting their properties, assets and businesses;
(5) maintain their books of account and records in
the usual, regular and ordinary manner;
(6) use their best efforts to maximize the profits
of UTILITY's utilities business;
(7) comply in all material respects with all
statutes, laws, ordinances, rules and regulations applicable to
them and to the conduct of their businesses;
(8) not amend their respective Certificate or
Articles of Incorporation or Bylaws;
(9) not merge or consolidate with, or agree to
merge or consolidate with, or purchase substantially all the assets
of, or otherwise acquire any business or any corporation,'
partnership, association or other business organization or division
thereof or sell all or substantially all or any material part of
their assets;
(10) promptly advise CITY, in writing, of any
material adverse change in their operations or businesses; no
meters shall be installed prospectively, no plant capacity charges
accepted prospectively if service is not provided conc.urrently; and
(11) not enter into any transaction, including,
without limitation, the purchase, sale or exchange of property
with, or the rendering of any service to UTILITY or AGCC, except in
the ordinary course of and pursuant to the reasonable requirements
of the business of UTILITY or AGCC and upon fair and reasonable
terms no less favorable to UTILITY or AGCC than it would obtain in
a comparable arm's-length transaction with an unrelated third
party.
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9.2.. Certain Contracts. Except for written contracts
obligating UTILITY or AGCC in an amount not to exceed $1,000.00 and
service availability letters in any amount, no contract, commitment
or developer's agreement will be entered into on behalf of UTILITY
or AGCC without the prior written approval, in writing, obtained
from CITY.
9.3. 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).
9.4. No Encumbrances. From and after the date of the
execution of this Agreement, neither UTILITY nor AGCC shall, with-
out the prior written consent of CITY, dispose of or encumber any
of the Purchased Assets.
9.5 Access to Records. At all times, UTILITY and AGCC
will cooperate by opening records and by providing access 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.
9.6. Performance of Closinq Conditions. UTILITY and
AGCC shall perform all of the conditions to closing which should be
performed by UTILITY and AGCC prior to closing as provided herein.
9.7. Insurance. Prior to closing, UTILITY shall
maintain adequate 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 or AGCC after the Closing Date.
9.8. Examination and Inspection. UTILITY and AGCC will
permit full examination by CITY'S authorized representatives of all
existing contractual obligations, physical systems, assets, real
estate, rights-of-way, easements and inventories utilized by
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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. Provided, however, in no event
shall the chemicals on hand on the Closing Date be less than those
needed to operate the System for a period of five (5) days.
Provided, further, that UTILITY shall not remove any inventory
items between the date this Agreement is signed through 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. Orqanization, Standinq 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 A~reement. 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.
SECTION 11. ADJUSTMENTS AND PRORATIONS.
11.1. Adjustments. At the time of closing, the parties
covenant and agree that the following adjustments shall be made:
(1) Real and personal property taxes on all real
and personal property which is being conveyed by UTILITY or AGCC 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) Within ten (10) days after closing, UTILITY
will render bills in its name to all customers for water and sewer
service through the Closing Date. UTILITY intends to complete
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reading all account meters by the Closing Date. Ail rates, fees,
and charges for sewer service through the Closing Date shall be the
property of UTILITY. Any subsequent bills rendered by UTILITY,
shall be rendered in the name of CITY. All rates, fees, and
charges for water and sewer service after the Closing Date shall be
the property of CITY.· UTILITY shall be paid all collective
revenues for sales of water or sewer service provided as of and up
to the closing Date. Such collection shall be transferred to
UTILITY for a period of three months after the Closing Date.
Thereafter, all such payments shall cease.
(3) All. accounts payable and bills for electricity
and services and supplies for the month in which the closing of
this transaction takes place will be prorated between the parties.
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.
(4) Any taxes on gross receipts as of the Closing
Date shall be paid by UTILITY.
(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. Although CITY has been
requested by UTILITY to do so, 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
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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.
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. Documentary stamps and intangible tax on any Mortgage,
and the cost of recording the Deed, Mortgage, and UCC-1 financing
statements shall be paid by CITY. Certified, confirmed and rati-
fied special assessments or municipal liens as of the Closing Date
shall be paid by UTILITY.
SECTION 13~ ENVIRONMENTAL MATTERS.
13.1. UTILITY and AGCC warrant that the Property
described in Exhibits "1," "3," and "7," 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 and AGCC warrant 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.
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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. Ail 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.
I ~__3.6,~ C~TY, and_.t-~repr~entn~ .... . =hal 1 be allowedjllz~
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problems.
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SECTION 14. INDEMNITY. UTILITY and AGCC shall, and hereby
agree to, defend, indemnify and hold harmless, CITY 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 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, injunc-
tions, 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 inaccurate representation made by UTILITY
or AGCC in or under this Agreement; (2) breach of any of the
warranties made by UTILITY or AGCC in or under this Agreement; (3)
breach or default in the performance by UTILITY or AGCC of any of
the covenants, conditions, commitments, agreements, duties or obli-
gations to be performed by it hereunder; (4) any debts, liabilities
or obligations of UTILITY or AGCC, 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 AGCC or the failure of any
act or action to occur that is the subject of any duty, obligation,
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covenant, condition, commitment, agreement, representation or
warranty undertaken or made by or on behalf of UTILITY or AGCC
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 and
AGCC 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, UTILITY, or
AGCC 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.
SECTION 15. COVENANT NOT TO ENGAGE COMPETING IN UTILITY
BUSINESS. UTILITY and AGCC agree that they shall not engage (the
words "shall not" being used in a mandatory definition) in the
business of providing water or wastewater service to 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. Notwithstanding any
investigation or other due diligence heretofore conducted by CITY
or its affiliates, UTILITY agrees that CITY is entering into this
transaction in reliance on the representations and warranties of
UTILITY set forth in this Agreement, which reliance UTILITY
acknowledges is intended and justified.
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, and
such closing shall occur on , 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 , 1993, by sending written
notice to the other parties at least fifteen (15) days prior to
, 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.
SECTION 18. CLOSING DOCUMENTS AND PROCEDURES.
18.1. Deliveries from UTILITY and AGCC. At least thirty
(30) days prior to the Closing Date, UTILITY (or AGCC, as
appropriate) shall deliver to CITY:
(1) True, correct and complete copies of the
Articles of Incorporation and Bylaws of General Development
Utilities, Inc., and the Articles and Incorporation and Bylaws of
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Atlantic Gulf Communities Corporation, 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 "1," and all the Property owned by
AGCC as described in .Exhibit "7," 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 Encumbrances, as
that term is defined herein. The term "Permitted Encumbrances" as
used in this Agreement shall mean:
(a) Restrictions of record that do not impair,
restrict, or inhibit any use of or improvement to the property as
permitted by applicable zoning ordinances presently in effect and
that are not coupled with a forfeiture or reversionary provision.
(b) Rights-of-way over, across, through, or
upon the property heretofore dedicated to the public and public
utility easements, provided that said rights-of-way and easements
do not impair, restrict, or inhibit any use of the property or
other interest in real property as permitted by applicable zoning
ordinances presently in effect.
(c) With respect to easements and dedicated
rights-of-way, rights of owners of the property across which such
easements and dedicated rights-of-ways exist as do not interfere
with the use of Such easement or right-of-way for utility purposes;
(3) Instruments of conveyance, in appropriate
recordable form, of all the Easements as described in Exhibits "3"
and "7" 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
liens, security interests, encumbrances, leasehold interests,
charges or options, covenants or restrictions other than Permitted
Encumbrances, as that term is defined herein;
(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) Assignments of those vendor accounts which have
been specifically requested by CITY at least thirty days prior to
the Closing Date;
(6) Ail business records sold to CITY hereby;
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(7) Title insurance policies in the form called for
in Section 6 of this Agreement;
(8) Ail permits, governmental authorizations and
approvals as described in Exhibit "5";
(9) Mechanics lien affidavit as to realty and
personalty insuring and indemnifying CITY against any liens, claims
or encumbrances upon the Purchased Assets;
(10) The surveys required by Section 7 hereof;
CITY;
amount of $
(11) Ail existing customer deposits for service to
(12) The customer service security deposits in the
by cashier's check; and
"7" hereof.
(13) The AGCC-owned sites as described in Exhibit
18.2. CITY Deliverables. On the Closing Date, CITY
shall send a wire transfer of federal funds to the account
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identified by UTILITY or shall deliver a cashier's check in the
amount due to UTILITY as provided in Section 5 of this Agreement.
18.3 - Conditions Precedent to Closinq. The obligations
of CITY pursuant to this Agreement are contingent upon satisfaction
and UTILITY's, or AGCC*s performance of the following conditions
set forth in Paragraphs 18.3(a) through 18.3(d) prior to closing.
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 o~
environmental audit indicating that the Property and the Purcha~
Assets are in a clean and healthful condition, free of
environmental contamination or potentially harmful physical
conditions, other than suck 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 and AGCC 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 vendor contracts, 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 upon the execution of this Agreement, CITY shall
be entitled to inspect said contracts and agreements and UTILITY
and AGCC 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.
(c) Ail UTILITY's and AGCC'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
such time, and all such representations of warranties shall survive
the Closing.
(d) Ail corporate and other proceedings to be
taken by UTILITY and AGCC in connection with the transactions
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contemplated hereby and all documents incident thereto shall be
reasonably satisfactory in form and substance to CITY and CITY's
Attorney, and CITY shall have received from UTILITY and AGCC all
such counterpart originals or certified or other copies of such
documents as CITY 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. ACCOUNTS RECEIVABLE. Except as provided in
Subsection 11.1 above, the sale contemplated by this Agreement
shall not include any accounts receivable or other debts and
receivables due to UTILITY in respect of its operation of the
System through the Closing Date. All such amounts received by.CITY
after the Closing Date shall be promptly paid or delivered to
UTILITY. If the amounts received by CITY include receivables not
sold hereby, but also include receivables due CITY, the amount
received shall be prorated between CITY and UTILITY. CITY's
obligation to return accounts receivable .shall end six months from
the Closing Date. UTILITY shall provide all billing information
sixty (60) days prior to Closing to CITY.
SECTION 21. COMMISSIONS. UTILITY, AGCC and CITY warrant to
the other that the transaction contemplated by this Agreement is a
direct, private transaction between UTILITY, AGCC 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:
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CITY:
with a copy to:
UTILITY:
with a copy to:
AGCC:
City Manager
City of Sebastian, Florida
City Hall
1225 Main Street
Sebastian, Florida 32958
Charles Ian Nash, Esquire
City Attorney
Frese, Nash & Torpy, P.A.
930 S. Harbor city Blvd.
Suite 505
Melbourne, Florida 32901
Charles E. Fancher, Jr.,
President
General Development Utilities,
Inc.
2601 South Bayshore Drive
Miami, Florida 33131
Thomas Jeffrey, Esq.
Atlantic Gulf Communities Corp.
2601 South Bayshore Drive
Miami, Florida 33133-3461
with a copy to:
SECTION 24. NO INTERFERENCE WITH EMPLOYMENT. Neither UTILITY
nor AGCC will 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.
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SECTION 26. AMENDMENT. Amendments to and waivers to the
provisions herein shall be made by the parties only in writing by
formal amendment.
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. Ail 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, AGCC 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. Ail 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.
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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
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. Ail agreements of
indemnity made by any party to this Agreement shall survive the
closing.
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:
CITY:
THE CITY OF SEBASTIAN, FLORIDA
(x)
Name:
By:
Lonnie R. Powell, Mayor
(x)
Name:
Attest:
Kathryn M. O'Halloran,
CMC/ACC, city Clerk
Approved as to Form and Legal
Suf.ficiency:
SEAL)
Charles Ian Nash
City Attorney
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Signed, sealed and delivered
in the presence of:
(x)
Name:
(x)
Name:
UTILITY:
GENERAL DEVELOPMENT UTILITIES,
INC., a corporation
By:
Mr. Charles E. Fancher, Jr.
President
[Corporate Seal]
Signed, sealed and delivered
in the presence of:
(x)
Name:
(x)
Name:
AGCC:
ATLANTIC GULF COMMUNITIES
CORPORATION, a corporation
By:
.Larry Rutherford,
President
[Corporate Seal]
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
The foregoing instrument was acknowledged before me this
day of .... , 1993 by ,
the Mayor of THE CITY OF SEBASTIAN, FLORIDA, on behalf of THE CITY
OF SEBASTIAN. He is personally known to me or has produced
as identification.
Si~i~:llul'c of Per.~ou Taki~g Ack~owlcd~cmcm
Name of Acknowlctlgcr Typed, Ih'imed oc ,~t;tml)cd
26
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STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1993 by ,
of GENERAL DEVELOPMENT UTILITIES,
INC., a Corporation, on behalf of the corporation.
Ne is personally known to me or has produced
~ as identification.
Signatur~ of P,.,rson 'l';~king Aek. nowledgem,.~t
Namc of Acknowledge. r Typcd. PrinU~l or Slaml)e.d
Commissiou Number
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1993 by ,
of ATLANTIC GULF COMMUNITIES
CORPORATION, a Corporation, on behalf of the
corporation. Ne is personally known to me or has produced
as identification.
/
SignaLurc of I:'cr-so~L T:Lkh~g Acknowiecig~m,.'~1
~ N:Lm¢. (~f' Acknuwledgcq' Typed. Prhllcd or $1ampcll
Not:,,3' l~ubhc ~ 7~ ~'
C:\WP\CIN\SEBASGDU.AC2
27
5.
6.
7.
8.
9.
"LIST OF EXHIBITS
TO
CITY OF SEBASTIAN, FLORIDA/
GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM
PURCHASE AND SALE AGREEMENT
Land
Equipment
Easements, ROWS, and other similar real estate rights
and assets
Vendor Contracts
Permits and Approvals
All Assigned and Assumed Agreements
AGCC Property Related to Water and Wastewater System
Sebastian Highlands Subdivision Service Area
Any Assigned Lease
28
City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 [] FAX (407) 589-5570
I AGENDA FORM
SUBJECT: ) Agenda No.
I Resolution No. R-93-51 )
Florida City Government Week ) Dept. Origin
October 3 - 9, 1993 )
) Date Submitted
)
APPROVED FOR SUBMITTAL BY: ) For Agenda Of
C Manager: ~..; ~/(~ '~ )
city Clerk
~ ~/z~/q~
Exhibits: R-93-51
EXPENDITURE
REQUIRED: N/A
AMOUNT
BUDGETED: N/A
APPROPRIATION
REQUIRED:
SUMMARY STATEMENT
At the request of Councilmember Corum, we are presenting
Resolution No. R-93-51, supporting "Florida city Government Week"
for your approval. Mrs. Corum will accept the resolution and
make a presentation.
RECOMMENDED ACTION,.
Move to adopt Resolution No. R-93-51.
q3.22
RESOLUTION NO~ R-93-51
A RESOLUTION OF THE CITY OF SEBASTIAN~ iNDIAN RIVER
COUNTY, FLORIDA, RECOGNIZING CITY GOVERNMENT WEEK,
OCTOBER 3-9, 1993, AND ENCOURAGING ALL CITIZENS TO
SUPPORT THE CELEBRATION AND CORRESPONDING ACTIVITIES;
PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF
RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, city government is the government closest to most
citizens, and the one with the most direct daily impact upon its
residents; and
WHEREAS, city government is administered for and by its
citizens, and is dependent upon public commitment to and
understanding of its many responsiblities; and
WHEREAS, city government officials and employees share the
responsibility to pass along their understanding of public
services and their benefits; and
WHEREAS, Florida City Government Week is a very important
time to recognize the important role played by city government in
our lives; and
WHEREAS, this week offers an important opportunity to spread
the word to all the citizens of Florida that they can shape and
influence this branch of government which is closest to the
people; and
WHEREAS, the Governor and cabinet of the State of Florida
have set aside this week to recognize and honor the efforts of
city governments;
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NOW, THEREFORE BE IT RESOLVED BY THE CITY OF SEBASTIAN,
FLORIDA, as follows:
Section 1. That the City of Sebastian does encourage all
citizens, city government officials and employees to do
everything possible to ensure that this week is recognized and
celebrated accordingly.
~ectlon 2. That the City of Sebastian does encourage
educational partnerships between city government and schools.
Section 3. That the City of Sebastian does support and
encourage all city governments to actively promote and sponsor
"Florida City Government Week".
Section 4. CONFLICT. Ail resolutions or parts of
resolutions in conflict herewith are hereby repealed.
Section $. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
The foregoing Resolution was moved for
Councilmember . The
seconded by Councilmember
being put into a vote, the vote was as follows:
adoption by
motion was
and, upon
Mayor Lonnie R. Powell
vice-Mayor Frank Oberbeck
Councilmember Carolyn Corum
Councilmember Norma J. Damp
councilmember Robert Freeland
2
The Mayor thereupon declared this Resolution duly passed and
adopted this day of , 1993.
CITY OF SEBASTIAN
ATTEST:
By:
Kathryn M. O'Halloran, CMC/AAE
City Clerk
(SEAL)
Approved as to Form and Content:
Lonnie R. Powell, Mayor
charles Ian Nash, ~ity Attorney
3
City of Sebastian
POST OFFICE BOX 780127 [:] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 [] FAX (407) 589-557O
AGENDA FORM
SUBJECT:
John Malek - Santa Sail-In
winter Wonderland - Riverview
Park
//aROVED FOR SUBMITTAL BY:
nager :~~ .. ~ '~z9¢ ~----
)
)
) Dept. Origin City ~lerk
)
) Date Submitted 9/16/93 .
)
) For Agenda Of 9~. ~[Z~
)
) Exhibits: King Letter dated
9/16/93
EXPENDITURE
AMOUNT
APPROPRIATION
REQUIRED: N/A BUDGETED: N/A REQUIRED:
SUMMARY STATEMENT
The city Council, at its August 11, 1993 concurred with a request
from John Malek, Chamber of Commerce, to hold Winter Wonderland
festivities in Riverview Park and a Santa Sail-In on December 3,
1993. Mr. Malek was directed to keep City Council informed on
the progress of the activities.
The Chamber of Commerce has requested that Mr. Malek make a
presentation to city Council at its September 22, 1993 Regular
Meeting.
RECOMMENDED ACTION
No action required.
/~~~,i,~'....~.'~,~
C HAM B ER O F CO M '~.x-:'~:s
September 16, 1993 ~
City Council
City of Sebastian ~
1225 Main Street
Sebastian FL 32958 ~,
Dear Council Members:
Regarding: Chamber of Commerce's - Santa's Sail-in & Winter-Wonderland ' ~
Plans for our community-wide Holiday festival are well under wayl Public support for
the activities has been extraordinary, and we are looking forward to producing an
event that will be an asset and source of pride for our entire community.
Pursuant to our original request to the Council for use of the park for the Winter
Wonderland part of the festival, we would like for our Wonderland Chairman, John
Malek, to appear before the Council on September 2_.~h to update you on our hopes
and plans; and to ask for your cooperation and participation as we proceed with the
many logistical aspects of this undertaking.
Just to keep you posted, the Lighted Regatta portion of the festival is also progressing
in good time! Capt. Hiram's Seafarers Club is orchestrating and producing this
exciting part of the evening, and to our delight we already have approximately a dozen
boats that want to participate! (A nearby neighboring community had fewer than 6
their first year, so we feel we are very fortunate indeed!).
Although this entire event is a Chamber of Commerce ac, tivity, it encompasses many
people, groups and organizations that are not members of the Chamber. It's
something of an "Abe Lincoln" sort of event: of the people, by the people, for the
people! Although we began rather late in the year, we are especially gratified to see
the community responding so positively to what we're trying to accomplish!
We look forward to up-dating you and to answering any questions you may have!
Thank you so much for your anticipated cooperation!
_~~.~incerely, .
Virginia King
Executive Director
1302 U.S. #1 · SEBASTIAN, FLORIDA 32958
PHONE (407) 589-5969
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RESOLUTION NO. R-93-50
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, AUTHORIZING THE CITY MANAGER AND CITY
CLERK TO SIGN, ON BEHALF OF THE CITY, AN AIRPORT LEASE
AGREEMENT BETWEEN THE CITY OF SEBASTIAN AND CHARLES
CLAY PRICE; PROVIDING FOR REPEAL OF RESOLUTIONS OR
PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING
FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Sebastian, after
reviewing the proposed Lease Agreement submitted by Charles Clay
Price, Individual, for its approval, has determined that it is in
the best interest of the City to enter into the Lease Agreement
with Charles Clay Price, whereby the City shall lease certain
real property located at the Sebastian Municipal Airport to
Charles Clay Price.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that:
Section 1. AGREEMENT. The City Manager and the City Clerk
of the city of Sebastian, Indian River County, Florida, are
hereby authorized to sign, on behalf of the City, the proposed
Lease Agreement which is attached to this Resolution as Exhibit
"A" and by this reference is incorporated herein.
Section 2. CONFLICT.
resolutions in conflict
Section 3. SEVERABILITY.
Ail resolutions or parts of
herewith are hereby repealed.
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
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 4. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
The foregoing Resolution was moved for adoption by
Councilmember . 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
adopted this
day of , 1993.
CITY OF SEBASTIAN
ATTEST:
By:
Lonnie R. Powell, Mayor
Kathryn M. O'Halloran, CMC/AAE
City Clerk
(SEAL)
Approved as to Form and Content:
Charles ian Nash, City Attorney
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LE~SE
THIS LEASE, made and entered into this day of ,
1993, by and between the CITY OF SEBASTIAN, a municipal corporation
existing under the laws of the State of Florida, (hereinafter
referred to as the "Landlord"), and Charles Clay Price, an
individual, maintaining his principal office and place of business
in 1623 U.S. #1, Suite B-4, Sebastian, Florida, (hereinafter
referred to as the "Tenant"). The Landlord and the Tenant are
sometimes collectively referred to herein as the "parties".
WITNESS ETH :
WHEREAS, the Landlord is the owner of certain property located
in the County of Indian River County, Florida; and
WHEREAS, the certain property is being used for the operation
of the Sebastian Municipal Airport (hereinafter referred to as the
"Airport"); and
WHEREAS, the certain property is also available for use for
those activities consistent with or in support of aviation activity;
and
WHEREAS, the Landlord has agreed to lease such property to the
Tenant subject to certain terms and conditions consistent with or in
support of the current aviation use of such property; and
WHEREAS, the Tenant desires to lease the said property from the
Landlord, and to that end and in consideration of the premises, and
the covenants, terms and conditions to be performed as set forth
hereinafter; and
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter provided, the receipt and sufficiency of which are
hereby acknowledged, the parties have agreed as follows:
1. RECITALS. The above stated recitals are hereby
incorporated by reference in this Lease Agreement.
2. LEASED PREMISES. Subject to the terms and conditions set
forth hereinafter, the Landlord leases hereby to the Tenant and the
Tenant rents hereby from the Landlord that portion of the real
property of the Landlord which is described more particularly on
Schedule "A" annexed hereto and made a part hereof by reference
(hereafter referred to as the "leased premises").
3. TERM OF LEASE. The term of this Lease shall be for a
period of twenty (20) years commencing sixty (60) days after the
date the Tenant executes this Lease and will end on the twentieth
(20th) anniversary of such date. So long as the Tenant is not i~
default of any term, cQ~dition or covenant provided in this Lease
Aqreemen~., including any addendum here~oj the Tenant shall, have the
oDtion._to renew this Lease...for one ¢1) additional twenty (2Q) year
term (the "oDtion Term") ~y providing the Landlord with written
notice of the Tenant's decision to exercise his option no less than
one hundred eighty ¢180) days and no more than two hundred ten (~10)
days prio~ to the expiration of the initial term o~ this Lease. All
other provisions of this Lease Aqreement shall .apply durinq the
Qption Term; provided~., howev~r~ the yearly rent durinq, the 0ptio~
Term shall, be in an amount determined by the Landlord by and through
the city Council of the City o~ Sebast..i~D~ includinq the method for
calculatin~ annual adjustments thereto.
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4. RENT. The parties agree that the rent, payable by the
Tenant, during the term of this Lease shall be as follows:
(a) For the leased premises the yearly rent shall be one
thousand two hundred dollars ($1,200.00) per acre. The Landlord
recognizes that the purchasing power of the United States dollar is
evidenced by the United States Department of Labor, Bureau of Labor
Statistics, Index of Consumer Prices. In July of 1996, 2001 and
every five years thereafter the Landlord will compare the base price
index for December of 1991 and the yearly rent amount shall be
increased (or decreased) on December 1, 1996, and every five ~ears
thereafter in the same proportion as said July index has increased
(or decreased) over (or under) the price index for December, 1991,
or for December, five years earlier. In no event, however, shall
the rent decrease below the sum of $1,200 per acre.
(b) In addition to the rental amount, the Tenant shall
pay Florida sales tax, if applicable.
(c) The above rental for the leased premises shall be
payable in advance, in monthly installments, commencing from the
date of commencement of this Lease, as described in Section 2
(above) and on a like day of every month thereafter during the term
of this Lease.
5. FUEL FLOWAGE FEE.
(a) In addition to the rent due hereunder, the Tenant and
any sublessee of Tenant, shall also pay to the Landlord the
following sums, which shall not be rent for the leased premises, but
shall be collected by the Landlord from the Tenant, and any
sublessee of the Tenant, at the time of delivery at the Airport:
TWO cents per gallon on all aviation fuels delivered t6
the Tenant, or to any sublessee of the Tenant, at the Airport (the
preceding charge per gallon shall be subject to change at any time
by Landlord as determined by resolution of the City Council of
Sebastian. Such change shall become effective immediately upon
delivery of written notice thereof to Tenant).
(b) The Tenant and any sublessee of the Tenant shall
furnish to the Landlord written detailed monthly statements showing
the total amount of aviation fuels delivered to the Tenant, or any
sublessee of the Tenant, at the Airport. Said statements sha%l be
furnished no later than the 15th day of each month during the time
this Lease shall be in force. The Tenant agrees, both on behalf of
itself and any sublessee of the Tenant, that said amounts may be
collected by the Landlord from the Tenant, or any sublessee of the
Tenant, in the same manner as rent.
(c) The monthly statements referred to in the foregoing
subparagraphs pertain only to operations conducted at the Airport
and exclude any operations of the Tenant, or any sublessee of the
Tenant, conducted at other locations.
(d) The Tenant, or any sublessee of the Tenant, shall
further retain upon the leased premises all delivery bills, invoices
and related records pertaining to all aviation fuels delivered to
the Tenant, or to any such sublessee, and shall produce and make
available such books and records upon request by the Landlord for
the purpose of auditing payments to the Landlord as provided
hereinabove. Such books, records and other documents shall be made
available for inspection to representatives of the Landlord within
15 days of written notice to the Tenant or any sublessee of the
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Tenant. If said inspection reveals that payments to the Landlord
are in error, by more than 2%, then Tenant shall pay the additional
amount owing to Landlord plus all costs of said inspection.
6. IMPROVEMENTS TO THE PREMISES. The Landlord acknowledges
that the Tenant is leasing the premises for the purposes described
in Paragraph 7 below, and that in order to utilize the leased
premises for this purpose, it will be necessary to erect thereon a
building and other improvements, to be constructed by the Tenant
upon the leased premises at the Tenant's sole cost and expense and
to comply with all applicable rules, laws, regulations and
requirements pertaining thereto.
(a) The Tenant shall have the right to use the leased
premises for any lawful purpose associated with the use of aircraft
and/or an airport to the extent described in Section 7 hereof, and
shall have the right to construct upon the leased premises any
buildings or other structures that may be proper for such use,
provided any such buildings or structures do not in any way curtail
the use of the airport facilities in their usual operations and
provided further that any such buildings or structures are
approved, in writing, by the Sebastian City Council and the FAA
prior to commencement of any construction. The Tenant covenants and
agrees that all such construction shall be in accordance with the
local and state codes, regulations and requirements as well as in
accordance with all requirements of the Federal Aviation
Administration ("FAA").
(b) The Tenant shall indemnify, defend and hold the
Landlord harmless from any claims, losses, damages or liens arising
out of the construction of any such buildings or structures.
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(c) Ail improvements to the leased premises shall, upon
termination of this Lease for any reason, become the sole property
of the Landlord without any further'consideration from Landlord to
Tenant. In order to confirm sole ownership in the Landlord, the
Tenant shall, at Landlord's request, execute any and all documents
of transfer which Landlord deems necessary to perfect title to said
improvements. The Tenant agrees that all improvements shall, upon
the termination of this Lease for any reason, be free and clear of
all encumbrances, liens, and title defects of any kind.
(d) In the event the Tenant is prohibited from obtafning
a building permit or licen~e to construct the improvements described
below, within ninety (90) days from the date hereof, from the
appropriate governmental authorities having jurisdiction over the
leased premises, for reasons not caused by and beyond the control of
the Tenant, this Lease shall be null and void and the Landlord and
the Tenant shall have no obligation toward each other except as
otherwise provided herein.
(e) Attached hereto as Schedule "B" is a description of
all improvements to be constructed on the leased premises by Tenant,
including the date of commencement and completion required for each
improvement. In the event that such improvements are not commenced
on the apPlicable date set forth in Schedule "B", and thereafter
completed on the applicable date set forth in Schedule "B", Landlord
shall have the option to terminate this Lease and have no further
obligations to Tenant hereunder. Such option shall be exercised
within a reasonable time by written notice to Tenant.
7. USE OF LEASED.PREMISE~. The Tenant agrees that no use of
the leased premises will be conducted in such a manner as to
constitute a nuisance or a hazard and that, in connection with the
use of the leased premises, the Tenant will observe and comply with
all applicable laws, ordinances, orders and regulations prescribed
by lawful authorities having jurisdiction over the leased premises.
The Tenant agrees that the leased premises shall be used by the
Tenant solely for the following purposes or uses:
The operation of aviation facility includinq a parachute center,
m~intenance operationt and an ~pron area. The following activi%ies
shall be allowed when city approved facilities are constructed.
aircraft hangars, aircraft parkinq facility and fuel farm.
Any use of the leased premises other than those specifically
stated above are expressly prohibited. No other use may be
conducted by the Tenant without the express written consent of the
Such consent may be withheld by the Landlord for any
Landlord.
reason.
8.
obligated
REPAIRS AND ALTERATIONS. The Landlord shall not be
to maintain or repair the leased premises or any
improvements located or any part hereof thereon during the lease
term or any renewal thereof.
The Tenant agrees, at its sole cost and expense, to maintain
all of the improvements, including, but not limited to, buildings
(and all parts thereof) and the parking and service areas located on
the leased premises, in a good state of maintenance and repair and
to keep the leased premises in a clean, neat and orderly condition
in accordance with local ordinances, including but not limited to,
the Sebastian Land Development Code and all other community
standards ordinances.
Upon obtaining the prior written consent of the Landlord, which
consent may be withheld for any reason, the Tenant, upon completion
of the original improvements, at its sole cost and expense, may
erect such additional' improvements on the leased premises as it
deems appropriate and may make such alterations or major renovations
to the existing improvements as it deems appropriate, provided,
however, that such alterations or renovations shall not disturb the
structural integrity of such existing improvements, and provided
that the alterations or renovations shall comply with all applicable
governmental regulations.
The Tenant shall indemnify, defend and hold the Landlord
harmless from any claims, losses, damages or liens arising out of or
in any way connected with such additions or renovations.
9. UTILITIES. The Tenant shall be responsible for all costs
of electricity, lights, water, sewer, heat, janitor service or any
other utility or service consumed in connection with the leased
premises. The Landlord shall have no liability for the failure to
procure or the interruption of any such services or utilities.
10. SIGNS. The Tenant shall have the right to erect and
maintain such sign or signs on the premises as may be permitted by
applicable law; provided, however, the Landlord must approve any
such signs in writing prior to erection. The Landlord may impose
any reasonable restrictions as, in the sole discretion of the
Landlord, are deemed necessary.
11. TAXE~. The Tenant shall pay during the Lease term all ad
valorem taxes, assessments or any other governmental charge levied
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or assessed against the leased premises (including the Tenant's
leasehold by the appropriate governmental authorities), together
with all ad valorem taxes assessment or other governmental charge
levied against any stock of merchandise, furniture, furnishings,
equipment and other property located in, or upon the leased
premises. Ail shall be paid by the Tenant on a timely basis and
receipts therefor shall be provided to the Landlord upon request.
12. INSURANCE. The Tenant shall provide and keep in force, at
its own expense, during the term of this Lease, public liability and
property damage insurance coverage with respect to the leased
premises, including those portions of the said premises used for
driveways, walkways, and parking areas. The insurance coverage to
be maintained by the Tenant shall contain limits of not less than
$500,000.00 for injury or death of any one person and $1,000,000.00
for injury or death for any one accident, together with $500,000.00
for damage to property. (Tenant agrees that Landlord may alter the
minimum amounts stated in the preceding sentence during the term of
this Lease by resolution of the City Council of the City of
Sebastian. Landlord will give written notice of any such change to
Tenant, and such changes will take effect immediately.) Any policy
or policies of insurance required pursuant to this Lease shall be
issued by one or more insurance companies authorized to engage in
business in the State of Florida and which have a rating of at least
A+ by A.M. Best and Company and at least an AA rating by both
Moody's and Standard and Poors. The Tenant shall supply the
Landlord with a certificate of such insurance with evidence of the
payment of the premium thereon. All policies described in this
Section 12 shall contain a clause preventing cancellation of any
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coverage before thirty (30) days written notice to the Landlord and
shall name the Landlord as an additional insured. Upon the request
of the Landlord, the Tenant shall provide copies of said policies to
the Landlord.
13. FIRE AN~ EXTENDED COVERAG~ INSURANCE. The Tenant shall,
at its sole cost and expense, procure and keep in effect such
standard policies of fire and extended coverage insurance as the
Landlord deems necessary and appropriate. Upon request, the Tenant
shall provide to the Landlord a certificate of such insurance with
evidence of the payment of the premium therefor. The Landlord shall
have no obligation to keep the buildings and improvements on the
leased premises insured nor shall the Landlord have any obligation
to insure any personal property used in connection with the leased
premises. Any policy or policies of insurance required pursuant to
this Lease shall be issued by one or more insurance companies
authorized to engage in business in the State of Florida and which
have a rating of at least A+ by A.M. Best and Company and at least
an AA rating by both Moody's and Standard and Poors. All policies
described in this Section 13 shall contain a clause preventing
cancellation of any coverage before thirty (30) days written notice
to the Landlord and shall name the Landlord as an additional
insured. Upon the request of the Landlord, the Tenant shall provide
copies of said policies to the Landlord.
14. DAMAGE OR DESTRUCTION OF IMPROVEMENTS BY FIRE OR OTHER
CASUALTY. In the event the building and/or other improvements
erected on the premises are destroyed or damaged by fire or other
casualty, the Tenant, at its option, agrees that it will cause said
building and/or other improvements to be replaced or said damage to
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be repaired as rapidly as practicable. The Landlord may abate the
Tenant's rent for the period of time more than 80% of the principal
building, if any, is unusable. In the event the Tenant elects to
repair and/or replace the building and other improvements on the
leased premises, the Landlord shall have no claims against any
insurance proceeds paid to the Tenant on account of such damage
and/or destruction nor shall the Landlord have any responsibility or
obligation to make any expenditures toward the repair and/or
replacement of the building and other improvements on the leased
premises. Provided, however, that all repaired and/or replaced
building and other improvements are repaired/replaced in a manner
equal to or better than the building/improvement being repaired or
replaced.
(a) If the Tenant, under its option, elects not to
repair and/or replace the building and improvements upon the
leased premises, the Landlord shall have two options:
1. To continue to Lease; if the Landlord elects to
continue the Lease, the Landlord shall be entitled to any
of the insurance proceeds on account of such damage and/or
destruction, such proceeds to be the sole property of the
Landlord; or
2. To cancel the Lease; if the Landlord elects to
cancel the Lease, the Landlord shall be entitled to that
portion of the insurance proceeds paid as a result of such
damage and/or destruction to the building and other
improvements on the leased premises, the Tenant shall be
entitled to the remainder, if any, of the insurance
proceeds.
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(b) In the event the Tenant, under its option, elects n~t
to repair and/or replace the building and improvements upon the
leased premises, the Tenant shall, at its sole expense, remove all
remaining portions of the damaged or destroyed building and
improvements and all rubble or debris resulting therefrom.
15. INDEMNIFICATI0~. The Tenant agrees hereby to defend,
indemnify and save the Landlord harmless from any and all actions,
demands, liabilities, claims, losses or litigation arising out of or
connected with the Tenant's occupancy or use of the leased premises
and the use of the leas~ premises ..~y tenant's .~aents. employees,
and invitee~ including all attorney's fees incurred by the Landlord
in defending any such claims. This Section 15 shall survive the
termination or cancellation of the Lease.
16. ENVIRONMENTAL MATTERS. The Tenant hereby agrees to
indemnify, defend and hold the Landlord harmless from and against
any and all claims, lawsuits, losses, liabilities, damages, and
expenses (including, without limitation, clean-up costs and
reasonable attorney's fees) resulting directly or indirectly from,
out of or by reason of (i) any hazardous or toxic materials,
substances, pollutants, contaminants, petroleum products,
hydrocarbons or wastes being located on the property and being
caused by the Tenant or its sub-Tenants. This Section 16 shall
survive the termination or cancellation of the Lease.
17. PREVENTION OF USE OF THE PREMISES. If, after the
effective date of this Lease, the Tenant is precluded or prevented
from using the leased premises for those specific purposes
identified in Section 6 of this Lease, by reason of any zoning law,
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· ordinance or regulation of any authority having jurisdiction over
the leased premises and such prohibition shall continue for a period
in excess of ninety (90) consecutive days, the Landlord may allow
the Tenant to terminate this Lease. The right to terminate this
Lease must be granted by the Landlord, in writing, before the Tenant
shall be released from its obligations under the terms of this
Lease.
18. LANDING FEES. Landing or any other type of use of runway
fees are specifically prohibited by this Agreement, so long as all
other tenants of the property owned by the Landlord located at the
Airport are prohibited from charging any such fees, as the use of
the Airport is for the general public. Nothing in this Lease shall
act to prohibit the Landlord from charging such fees as it deems
necessary or desirous.
19. GOVERNMENT SEIZURE. In the event the United States
Government, or any agency or subdivision thereof, at any time during
the term of this Lease takes over the operation or use of the
airfield and/or Airport which results in the Tenant being unable to
operate under the terms of the Lease, then the Lease may be extended
upon mutual agreement of the Tenant and the Landlord for an
additional period equal to the time the Tenant has been deprived of
the value of this Lease. If the duration of the seizure exceeds
ninety (90) consecutive days, the Landlord, at the Landlord's sole
discretion, may terminate this Lease.
20. EMINENT DOMAIN. If all or any part of the leased premises
shall be taken under a power of eminent domain, the compensation or
proceeds awarded for the taking of the land, building and/or
improvements on the leased premises shall belong to the Landlord.
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If the taking is to such an extent that it is impracticable for
the Tenant to continue the operation of its business on the leased
premises, the Lease, at the option of the Landlord, may be
terminated.
Nothing herein shall prevent the Landlord and/or the Tenant
from seeking any and all damages sustained from the condemning
authority by reason of the exercise of the power of eminent domain.
21. DEFAULT BY TENANT. As used in this Lease, the term,
"event of default", shall mean any of the following:
(a) The failure of the Tenant to fulfill any duty~or
obligation imposed on the Tenant by the Lease;
(b) The appointment of a receiver or the entry of an
order declaring the Tenant bankrupt or the assignment by the Tenant
for the benefit of creditors or the participation by the Tenant in
any other insolvency proceeding;
(c) The Tenants failure to pay any consideration, to the
Landlord, required by this Lease;
(d) The taking of the leasehold interest of the Tenant
hereunder pursuant to an execution on a judgment;
(e) The Tenants abandonment of any substantial portion of
the leased premises. "Abandonment" shall be determined by the
Landlord;
(f) The Tenant or any guarantor of Tenant's obligations
hereunder, filing a petition for bankruptcy or being adjudged
bankrupt, insolvent, under any applicable federal or state
bankruptcy or insolvency law, or admit that it cannot meet its
financial obligations as they become due, or a receiver or trustee
shall be appointed for all or substantially all of the assets of
Tenant or any Tenant's obligations hereunder;
(g) The Tenant or any guarantor of the Tenant's
obligations hereunder shall make a transfer in fraud of creditors or
shall make an assignment for the benefit of creditors;
(h) The Tenant shall do or permit to be done any act
which results in a lien being filed against the leased premises or
the property which is not released of record within thirty (30) days
of the date it is initially recorded in the Public Records of Indian
River County;
(i)
The liquidation, termination,
dissolution or (if
the Tenant is a natural person) the death of the Tenant or all
Guarantors of the Tenant's obligations hereunder;
(j) The Tenant fails for more than one hundred twenty
(120) consecutive days to continuously conduct and carry on in good
faith the type of business for which the leased premises are leased;
(k) The Tenant submits, more than two times during the
Lease term, a statement of aviation fuel sales that understates
actual such sales by five percent or more;
(1) The Tenant shall be in default of any other term,
provision or covenant of this Lease, other than those specified in
subparts a through k above.
Upon the happening of any "event of default", the Landlord may,
at its option, terminate this Lease and expel the Tenant therefrom
without prejudice to any other remedy; provided, however, that
before the exercise of such option for failure to pay rent or
failure to perform any condition imposed herein upon the Tenant, the
Landlord shall give written notice of such event of default to the
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Tenant, which thereafter shall have thirty (30) days, from the date
notice is sent by the Landlord, within which to remedy or correct
such default, unless such default is the failure to pay rent, in
which case the Tenant shall have ten (10) days, from the date notice
is sent by the Landlord, within which to remedy such default by
paying all rent due.
22. IDENTI~Y OF INTEREST. The execution of this Lease or the
performance of any act pursuant to the provisions hereof shall not
be deemed or construed to have the effect of creating between the
Landlord and the Tenant the relationship of principal and agent or
of a partnership or of a joint venture and the relationship between
them shall be and remain only that of landlord and tenant.
23. NOTICES AND REPORTS. Any notice, report, statement,
approval, consent designation, demand or request to be given and any
option or election to be exercised by a party under the provisions
of this Lease shall be effective only when made in writing and
delivered (or mailed by registerer or certified mail with postage
prepaid) to the other party at the address given below:
Landlord:
Tenant:
city of Sebastian
Attn: City Manager
1225 Main Street
Sebastian, FL 329~8
Guarantors: N/A ....
provided, however, that either party may designate a different
representative or address from time to time by giving to the other
party notice in writing of the change. Rental payments to the
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,Landlord shall be made by the Tenant at an address to be furnished
to the Tenant.
24. RIGHT TO..INSPECT. The Landlord may enter the leased
premises upon reasonable notice:
(a) To inspect or protect the leased premises or any
improvement to a property location thereon;
(b) To determine whether the Tenant is complying with the
applicable laws, orders or regulations of any lawful authority
having jurisdiction over the leased premises or any business
conducted therein; or
(c) To exhibit the leased premises to any prospective
purchaser or tenant during the final sixty (60) days of the lease
term, or at any time after either party has notified the other that
the Lease will be terminated for any reason.
No authorized entry by the Landlord shall constitute an
eviction of the Tenant or a deprivation of its rights or alter the
obligation of the Landlord or create any right in the Landlord
adverse to the interest of the Tenant hereunder~
25. OWNERSHIP OF TRADE FIXTURE~, SIGNS AND PERSONAL PROPERTY.
At the expiration of the Lease, any and all trade fixtures, signs
and personal property, used by the Tenant in the operation of its
business, on the leased premises shall remain the Tenant's sole
property and the Tenant shall have the right to remove the same
provided any damages in removal are repaired by the Tenant at
Tenant's sole cost.
In case of breach of this Lease by the Tenant, or the
termination of the Lease, or any extension hereunder, that may be
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granted, the Tenant agrees to immediately surrender possession of
said facilities, and all the buildings, edifices, etc. that are
constructed by or on behalf of Tenant. The facilities, buildings,
edifices, etc. shall then become the property of the Landlord.
26. RESERVED.
27. RESERVED.
28. HEIGHT RESTRICTIONS. The Tenant expressly agrees for
itself, its successors and assigns, to restrict the height of
structures, objects of natural growth and other obstructions on the
leased premises to such a height so as to comply with all Federal
Aviation Regulations, State laws and local ordinances, rules and
regulations now existing and hereinafter promulgated.
The Tenant expressly agrees for itself, its successors and
assigns, to prevent any use of the leased premises which would
interfere with or adversely affect the operation or maintenance of
the Airport or otherwise Constitute an airport hazard. The Tenant
covenants and acknowledges that the use of the leased premises as
proposed by the Tenant does not interfere with or adversely affect
the operation or maintenance of the Airport or otherwise constitute
an airport hazard. The Landlord reserves unto itself, its
successors and assigns, for the use and benefit of the public, a
right of flight for the passage of aircraft in the airspace above
the surface of the leased premises, together with the right to cause
in such airspace such noise as may be inherent in the operation of
aircraft, now known or hereafter used, for navigation or flight in
the airspace, and for use of said airspace for landing on, taking
off from, or operating on the Airport.
29. NONDISCRIMINATION. The Tenant for itself, its personal
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~representatives, successors in interest and assigns, as part of the
consideration hereof, does hereby covenant and agree as a covenant
running with the land that (i) no person on the grounds of religion,
gender, marital status, race, color or national origin shall be
excluded from participation in, denied the benefits of, or be
otherwise subject to .discrimination in the use of the Tenant's
facilities; (ii) that in the construction of any improvements on,
over or under the leased premises and the furnishing of services
thereon, no person on the grounds of religion, gender, marital
status, race, color or national origin shall be excluded from
participation in, denied the benefits of, or otherwise be subjected
to discrimination; (iii) that the Tenant shall use the premises in
compliance with all other requirements imposed by or pursuant to
Title 49, Code of Federal Regulations, Department of Transportation,
Subtitle A, office of the Secretary, Part 21, Nondiscrimination in
Federally Assisted Programs of the Department of Transportation-
Effectuation of Title VI of the civil Rights Act of 1964.
In the event of the breach of any of the above non-
discrimination covenants, the Landlord shall promptly notify the
Tenant, in writing, of such breach and the Tenant shall immediately
commence curative action. Such action by the Tenant shall be
diligently pursued to its conclusion, and if the Tenant shall then
fail to commence or diligently pursue action to cure said breach,
the Landlord shall then have the right to terminate this Lease and
to re-enter and repossess said land and improvements thereon.
30. ENTIRE AGREEMENT. This Lease contains all of the
understandings by and between the parties hereto relative to the
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leasing of the premises herein described, and all prior or
contemporaneous agreements relative thereto have been merged herein
or are voided by this instrument, which may be amended, modified,
altered, changed, revoked or rescinded in whole or in part only by
an instrument in writing signed by each of the parties hereto.
31. ASSIGNMENT AND SUBLETTING. The Tenant shall not assign
this Lease or sublet the leased premises or any portion thereof, or
otherwise transfer any right or interest hereunder without the prior
written consent of the Landlord, which consent may be withheld for
any reason. If the Landlord consents, in writing, to the
assignment, subletting or other transfer of any right or interest
hereunder by the Tenant, such approval shall be limited to the
particular instance specified in the written consent and the Tenant
shall not be relieved of any duty, obligation or liability under the
provisions of its Lease.
32. BINDING EFFECT. The terms and provisions of this Lease
shall be binding on the parties hereto and their respective heirs,
successors, assigns and personal representatives, and the terms of
any Addendum attached hereto are incorporated herein.
33. APPLICAB~ELAW/VENUE. In the event of litigation arising
out of this writing, venue shall be in Indian River County, Florida
and the terms of this Lease shall be construed and enforced
according to the laws of the State of Florida except to the extent
provided by Federal law.
34. ATTORNEYS FEES. In any action arising out of the
enforcement of this writing, the prevailing party shall be entitled
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to an award of reasonable attorneys fees and costs, both at trial
and all appellate levels.
35. RECORDING. In no event shall the Lease or a copy thereof
be recorded in the Public Records of Indian River County, Florida.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals the day and year first above written.
CITY OF SEBASTIAN
A Municipal Corporation
existing under the laws
of, Florida
Charles Clay Price,
Individually
Kathryn M. O'Halloran
Acting City Manager
ATTEST:
Sally A. Maio
Deputy city Clerk
Approved as to Form and
Content:
Charles Ian Nash
city Attorney
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$,,~HEDULE
This Schedule is a part of that certain Lease between the CITY
OF SEBASTIAN and Charles Clay Price dated for leased
premises at the Sebastian Municipal Airport.
Listed below is the general description of the leased premises.
The three acre parcel contigious to the Sebastian Aero
Services, west of the 4/13 taxiway and north of Sebastian Aero,
particular description to follow.
Fleming Grant that certain parcel lying in Section 29
described as follows~ beginning at the most westerly corner of
said Section 29, run south 44 degrees 21 minutes 28 second~
east 818.81 feet on southwest boundary of Section 29 to
centerline of Roseland Road, thence north 04 degrees 48 minutes
59 seconds west 514.65 feet on said centerline thence north 89
degrees 50 minutes 46 seconds east 644.46 feet, thence north 00
degrees 09 minutes 14 seconds west 849.00 feet to true point of
beginning, thence north 89 degrees 50 minutes 46 seconds east
425.00 feet to a point which lies 75.00 feet west of the
centerline of an existing airport taxiway, thence north 00
degrees 09 minutes 14 seconds west 307.00 feet, thence south 89
degrees 50 minutes 46 seconds west 425.00 feet, thence south 00
degrees 09 minutes 14 seconds east 307.00 feet to true point of
beginning.
Contains 3 acres more or less.
Less and except Parcel B & C whose legal description is
respectively described as:
Parcel B
Fleming Grant that certain parcel lying in Section 29
described as follows: beginning at the most westerly corner of
said Section 29, run S 44 degrees 21 minutes 28 seconds east a
distance of 818.81 feet on southwest boundary of Section 29 to
centerline of Roseland Road, thence north 04 degrees 48 minutes
59 seconds west a distance of 514.65 feet on said centerline,
thence north 89 degrees 50 minutes 46 seconds east a distance
of 644.46 feet, thence north 00 degrees 09 minutes 14 seconds
west a distance of 849.00 feet; thence north 00 degrees 09
minutes 14 seconds west a distance of 92.11 feet to a point of
beginning; thence north 00 degrees 09 minutes 14 seconds west a
distance of 79.60 feet; thence north 72 degrees 24 minutes 54
seconds east a distance of 87.62 feet; thence south 86 degrees
39 minutes 37 seconds east a distance of 94.64 feet; thence
south 69 degrees 44 minutes 03 seconds east a distance of 49.06
feet; thence south 00 degrees 09 minutes 14 seconds east a
distance of 62.21 feet; thence south 78 degrees 20 minutes 32
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seconds west a distance of 49.58 feet; thence north 81 degrees
41 minutes 01 second west a distance of 95.75 feet; thence
south 72 degrees 40 minutes 02 seconds west a distance of 84.52
feet to the true point of beginning.
Containing 18,213 square feet.
Parcel C
Fleming Grant that certain parcel lying in Section 29
described as follows: beginning at the most westerly corner of
Said Section 29 run south 44 degrees 21 minutes 28 seconds east
a distance of 818.81 feet on southwest boundary of Section 29
to centerline of 'Roseland Road, thence north 04 degrees 48
minutes 59 seconds west a distance of 514.65 feet on said
centerline, thence north 89 degrees 50 minutes 46 seconds east
a distance of 644.46 feet, thence north 00 degrees 09 minutes
14 seconds west a distance of 849.00 feet; thence north 89
degrees 50 minutes 46 seconds east a distance of 425.00 feet;
thence north 00 degrees 09 minutes 14 seconds west a distance
of 143.64 feet to the point of beginning; thence south 89
degrees 50 minutes 46 seconds west a distance of 200.96 feet;
thence north 09 degrees 09 minutes 14 seconds west a distance
of 15.00 feet; thence north 89 degrees 50 minutes 46 seconds
east a distance of 200.96 feet; thence south 00 degrees 09
minutes 14 seconds east a distance of 15.00 feet to the true
point of beginning.
Contains 3,014 square feet.
With the non-exclusive Ingress/Egress easement whose legal
description described as:
Fleming Grant that certain parcel lying in Section 29
described as follows: beginning at the most westerly corner of
said Section 29, run south 44 degrees 21 minutes 28 seconds
east a distance of 818.81 feet on southwest boundary of Section
29 to centerline of Roseland Road, thence north 04 degrees 48
minutes 59 seconds west a distance of 514.65 feet on said
centerline, thence north 89 degrees 50 minutes 46 seconds east
a distance of 644.46 feet, thence north 00 degrees 09 minutes
14 seconds west a distance of 849.00 feet to the point of
beginning; thence south 89 degrees 50 minutes 46 seconds west a
distance of 100.00 feet; thence north 00 degrees 09 minutes 14
seconds west a distance of 307.00 feet; thence north 89 degrees
fifty minutes 46 seconds east a distance of 100.00 feet; thence
south 00 degrees 09 minutes 14 seconds east a distance of
307.00 feet to the point of beginning.
2
SCHEDULE "B"
This Schedule is a part of that certain Lease between the CITY
OF SEBASTIAN and Charles Clay Price dated for leased
premises at the Sebastian Municipal Airport.
Listed below are the description of each improvement to be
constructed by Tenant on the leased premises and the required dates
of commencement and dates of completion for each such improvement:
Date of Date of
Description of I~provemeD~ Commenceme~% Completion
3,000 sq. ft. Hangar Upon Lease 1 Year
12' x 44' DCA Approved Modular
office Upon Lease 3 Months
Times are contingent upon receipt of required permits. -
CITY OF SEBASTIAN
A Municipal Corporation
existing under the laws
of, Florida
Charles Clay Price,
Individually Kathryn M. O'Halloran
Acting city Manager
ATTEST:
Sally A. Maio
Deputy City Clerk
Approved as to Form and
Content:
Charles Ian Nash
City Attorney
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SKYDIVING ADDENDUM TO LEASE BETWEEN
CITY OF SEBASTIAN AND CHARLES CLAY PRICE
AT THE SEBASTIAN MUNICIPAL AIRPORT
This is an Addendum to that certain Lease between CITY OF
SEBASTIAN and Charles Clay Price relating to property at the
Sebastian Municipal Airport, which Lease is dated the day of
, 199 The terms of this Addendum shall be a part
of said Lease as though'incorporated therein.
1. For additional consideration of $1.00 per year payable in
advance, the first of said annual installments being paid and
received herewith, Landlord hereby grants to Tenant, its agents,
employees and invitees, the right to use the land area depicted on
Attachment "A" hereto, which area is located at the Sebastian
Municipal Airport during the term of this Lease.
2. The right of use granted hereunder shall be on a non-
exclusive basis and shall be used by Tenant, its agents, employees
and invitees solely for the purposes of a drop zone for skydiving.
Landlord may from time to time promulgate rules and regulations
regulating the use of the drop zone by Tenant and others, and Tenant
hereby agrees for itself, its agents, employees and invitees to
fully abide by all said rules and regulations.
3. Tenant also agrees that the area may be changed by Landlord
at any time during the term of the Lease and such change shall be
effective when written notice of the change is delivered to Tenant
at its offices at the Sebastian Municipal Airport, which notice
includes an attachment depicting the new drop zone.
4. Tenant agrees to indemnify and hold Landlord harmless from
any and all losses, claims, damages, liabilities or any other
obligations whatsoever imposed or asserted against Landlord which in
any way relate to this Addendum, the right of use granted hereunder
or the use of the drop zone by Tenant, its agents, employees or any
of its invitees. Tenant agrees to maintain the area in a manner
that the area will not create a safety hazard to its agents,
employees, and invitees. This provision shall survive the
termination or cancellation of the Lease or. this Addendum.
5. Tenant's right to use granted herein shall immediately
terminate in the event that Tenant breaches any of the terms of this
Addendum or the Lease, or Tenant or any of its agents, employees, or
invitees fail to abide by the rules and regulations promulgated by
the Landlord.
Dated this
Charles Clay Price,
Individually
day of
, 199 .
CITY OF SEBASTIAN
A Municipal Corporation
existing under the laws of,
Florida
Kathryn M. O'Halloran
Acting city Manager
ATTEST:
Sally A. Maio
Deputy City Clerk
Approved as to Form and
Content:
Charles Ian Nash
City Attorney
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CITY OF SEBASTIAN,
CODE ENFORCEMENT BOARD
CITY .OF SEBASTIAN
COMPLAINT NO. 93-8038
Petitioner,
vs.
Herbert C. Patton,
Respondent.
AMENDED ORDER
THIS CAUSE came before the Code Enforcement Board of the City
of Sebastian on 8/18/93, by request of City staff, to amend the
order dated June 9, 1993 and dismiss the Certification of Fine
dated 7/21/93. The Board hereby cancels the Certification of Fine.
The order has been amended as follows:
FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND ORDER
THIS CAUSE came on for public hearing before the Code
Enforcement Board of the City of Sebastian, on 19th day of Ma~
1993, after due notice to the Respondent and based on the evidence
presented, the Code Enforcement Board makes the following:
FINDINGS OF FACT
That the respondent is the'owner of the residence located at Lot 9,
Block 5, Unit #1 Sebastian Highlands, Sebastian FL.: that a pool
enclosure is on said property which does not meet building code:
that metal debris; wood debris; masonary debris and other debris is
located on the property; and that one maroon inoperable vehicle is
located on the property.
WHEREFORE, based upon the forementioned Findings of Fact, the
Code Enforcement Board makes the following:
CONCLUSIONS OF LAW
That Section 26-138 (Pool Enclosure); Section 86-47
( Junk
Deposits); Section 66-1(2)(5)(6) (Nuisances); and Section 66-3
(1)(2)(3)(9) (Nuisances - vegetation exeeds 10 ") of the City of
Sebastian Code of ordinances have been violated.
WHEREFORE, based upon the foregoing Findings of Fact and
Conclusions of Law, it'is hereby ordered as follows:
Upon failure of the Respondent to comply with this Order, on
or before the 10th day of AuGust, 1993, the Code Enforcement Board
may levy a fine of up to One Hundred Dollars ($ 100.00~ for every
day the violation continues past the date set for compliance. It
shall be the responsibility of the Respondent to notify the Code
Enforcement officer that compliance has been achieved.
If Respondent does not comply on or before the date set for
compliance, an order imposing a fine may be recorded in the
Official Records of indian River County, and once recorded, SHALL
CONSTITUTE A LIEN against the property upon which the violations
exist and upon any other real or personal property owned by the
Respondent.
If Respondent causes a reoccurrence of the violation, this
Board shall after notification to the Respondent, reconvene in the
Council Chambers to hear further evidence on the issue of
compliance and may impose a fine of up to the maximum amount of
$500.00 per day for each day the violation continues beyond the
compliance date.
The foregoing Order was moved for adoption by the Code Board
member George Metcalf. The motion was seconded by Code Board Vice
Chairman Joan Kostenbader and, upon being put to a vote, the vote
was as follows:
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Board Member George Metcalf
Board Member Louis Nicolini
Chairman Damien Gilliams
Vice Chairman Joan Kostenbader
Board Member Donato DeRobertis
Board Member Wayne Tozzolo
Board Member Henry Fischer
Yes
Yes
Yes
Yes
Yes
Absent
Abstained
The Chairman thereupon declared this order duly passed and
adopted this !8th..day of Au__~,1993.
DONE AND ORDERED in Sebastian, Indian River County, Florida,
this / .day of ~~ , 19 ~
e~T_~.~_~__.~ Enforcement Board
NUN~UNC
ATTEST:
~lerk, ~de Enforceme Board
I City of Sebastian
POST OFFICE BOX 780127 tn SEBASTIAN, FLORIDA 32978
I TELEPHONE (407) 589-5330 ,n FAX (407) 589-5570
SUBJECT:
REQUEST TO REMOVE SPECIMEN TREE
BURGOON BERGER
Approved For Submittal By:
City Manager'S__ ~
Date Submitted:
For Agenda Of:
Exhibits:
Agenda Number: q5' 200~5-''
Dept. Origin: Community Development
09/09/93 (B~'
Tree Removal Application dated
09/09/93
Survey
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
SUMMARY STATEMENT
Pursuant to the City Council's direction at its regular meeting of May 22,
1991, the City of Sebastian Building Department requires a tree removal
permit to be obtained prior to removal of trees. The applicant,
Burgoon Berger is requesting removal of one specimen tree on a property at
942 Franciscan Avenue (Lots 24 & 25, Block 333, Sebastian Highlands Unit
13). The tree (one pine) is located on the proposed location for the
porch.
RECOMMENDED ACTION
Move to approve the removal of one specimen pine tree located on Lots 24 &
25, Block 333, Sebastian Highlands Unit 13.
CITY OF SEBASTIAN / APPLICATION FOR CLEARI~...'JAND
REMOVAL AND/O~N--6~ TREES
CONTRACTOR: Burqoon Berger Construction Corp.
ADDRESS:, 2191Juliah'
PHONE: "~23-0388
SUB-CONTRACTOR: Foxwell CleariQg
ADDRESS:_ P 0 B '~ Roseland, FL
PHONE: 589-8961
ZIP: ' 3290~---
ZIP: 32957
REASON FOR THE PERMIT: Sinqle Family Home
OWNER OF PROPERTY: L L~/< O ~ ~C,)<',/ '-Tj"~4--n ,,~ ~ ~ 7~ ~7'~-~k,'
PHONE NO.: 3 g~-~3 ~
I certify that all the foregoing information is accurate and
that all work will be done in compliance with the Land
Development Code ( Article XIV )
APPLICATION MUST INCLUDE:
1. On a'survey, locate all specimen trees (20 inch
diameter or more), indicate which trees to be
removed and/or relocated. Indicate the species of
each tree. Ail specimen trees (20 inch diameter or
more) to be removed or relocated must obtain the
approval of the Sebastian City Council. A survey
indicating all improvements must be submitted in
relation to the removal of the specimen trees.
Applicant must tag all specimen trees with a bright
ribbon around the tree approximately 6 feet above
the grade.
Office Use Only
SITE INSPECTION BY: /~DATE. 3 I
APPROVED FOR PERMIT? YES: NO:
MUST OBTAIN CITY COUNCIL APPROVAL: YES:
IF YES, DATE OF CITY COUNCIL APPROVAL:
NO:
I City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 r~ FAX (407) 589-5570
SUBJECT: Purchase of the
General Development Utilities
Sebastian Highlands Water &
Wastewater Facilities
Approved for Submittal By:
,~0c,~& Manage~ ~'~u~_
City ....
) Agenda No.
)
) Dept. of Origin: Finance (MS)
)
)
) Date Submitted: 09/16/93
)
) For Agenda of: 8~ ~/~¥/?~
)
) Exhibits: None
EXPENDITURE
REQUIRED: n/a
AMOUNT
BUDGETED: n/a
APPROPRIATION
REQUIRED: n/a
SUMMARY STATEMENT
Based upon City Council's acceptance of the intent to purchase
the General Development Utilities (GDU) - Sebastian Highlands
Water and Wastewater Facilities, the City's Task Force requests
authorization from the City Council to select the following:
1. Bond Underwriter - Raymond James & Associates, Inc.
2. Bond Counsel - Nabors, Giblin & Nickerson, P.A.
3. Rate Analyst - Rachlin & Cohen
4. Engineer - Hartman & Associates, Inc.
5. Certified Public Accountants - Hoyman, Dobson & Co., P.A.
RECOMMENDED ACTION
Move to authorize the Mayor and Acting city Manager to execute
contracts with the above named consultants to accomplish the bond
financing and purchase of GDU Sebastian Highlands Utility System.
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September 7, 1993
To whom it may concern:
Ne are permanent residents of Sebastian who are also senior
citizens. As such we pay taxes to Indian River County,
Sebastian and by extension, it seems, to Vero Beach.
In the slick, and we suppose expensive "Leisure Autumn News
'93" put out by the Recreation Department, City of Veto
Beach/Indian River County there are 16 pages devoted to
activities. On page 11 there are 3 programs for adults at
the Sebastian Community Center and page 6 has classes at the
Center in Ballet for children. Now this strikes us as a
rather lopsided line-up of activities. Ne seem to recall
that Sebastian had a Recreation Committee at one time. ~hat
ever happened to it?
Since, according to the papers, we are fast approaching
Vero's population we think we are due an explanation as to
the sparcity of recreation provided by Indian River County
or Sebastian, for us.
The only visible sign of activity is the Sports Complex
which is fine and we are glad for the children, but we
wonder about fairness and equity. Ne are taxpayers who
contribute to the county and city and receive very little
back. Ne need no meals, most of us drive ourselves, and we
have no children burdening the schools and we do our share
of volunteering.
If we send taxes and recreation money to Indian River
County then why do we have so little to show for it? If a
good share of our money is going to Vero Beach then why are
we charged as non-residents in order to use facilities that
our taxes contributed to? Finally, where is Sebastian in
this whole recreation scenario?
The Center in Sebastian is getting too small to service
both the congregate meals program and Aerobics classes in
the off season. We hate to think what it will be like when
the snow birds return and want to again enjoy our classes
with Kathy Fal~one, our very able certified Aerobics
instructor. For years we have wanted more classes but use
of the building is limited.
We urge the Sebastian City Council and the Indian River
Recreation Advisory Board to look into this severely.
neglected situation in Sebastian. We would like to meet
with you so we can use our resources more efficiently and
fairly for the whole community.
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Sincerely yours,
Concerned Citizens of Sebastian
!
~-~p¢- 7la'9
I City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
I TELEPHONE (407) 589-5330 o FAX (407) 589-5570
SUBJECT:
FRATERNAL ORDER OF POLICE REQUEST
TO USE RiVERVIEW PARK (NORTH)
A~proved For Submittal By:
City Manage~--/f-// //~.(..,~.~,-.-.-
) Agenda Number: .~3-t>2~/
)
) Dept. Origin: Community Development~
-' (BC)/~.
)
) Date Submitted: 09/07/93
)
) For Agenda Of:
)
) Exhibits: Letter from FOP dated
) 9/6/93.
EXPENDITURE
AMOUNT
APPROPRIATION
REQUIRED:
BUDGETED:
REQUIRED:
SUMMARY STATEMENT
The Fraternal Order of Police Lodge #139 is requesting permission from the
City Council to utilize Riverview Park (North) October 17 through 24, 1993
to hold a fund raising carnival.
City Council, at its workshop meeting of September 1, 1993, discussed
current and proposed park policy and deferred the matter to a later date.
Staff is bringing this item before the City Council in light, of the dates
requested by the Fraternal Order of Police. This organization has been
granted the use of Riverside Park (North) twice during the past two years,
in July 1992 and again in February 1993.
Staff has no objections to this request, provided applicant agrees to meet
all conditions set forth by City Council.
RECOMMENDED ACTION
Move to approve the request of the Fraternal Order of Police Lodge #139 to
utilize Riverview Park (North) October 17 through 24, 1993, subject to
conditions outlined by City Council.
P.O. Box 782123
Sebastian, Florida 32978
6 September 1993
Subject: Request Use of City Property for Childrens
Sports Fund Raising Carnaval 17 -24 October 1993
TO: Mayor Lonnie Powell and Sebastian City Council
During the month of October 17 thru 24, 1993 The Sebastian
Fraternal Order of Police would like to hold a Fund raising
Carnaval to raise funds for our organization and the children
of Sebastian.
As you are aware from our last years Carnaval money was
donated to poor people and sponsor sports Activities for the
children of Sebastian.
The City p~operty we are asking to use is located on CR-512
and US-1 & Indian River drive. Behind Gas Station.
Our Organization Will be responsible for Insurance, Clean-up
Police protection, and any monies due for overtime will be paid
back to the city of Sebastian.
Our organization request a waiver on any rental fees and
asks your support and approval on the above.
If any other thing is required please contact our Commitee
chairman, Joe Scarpa 589-3954.
Sincerely
~e ~a~d~'son
FOP Lodge 139
President
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I City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330 [] FAX (407) 589-5570
SUBJECT:
INDIAN RIVER RECYCLERS REQUEST TO
USE RIVERVIEW PARK
¢proved For Sub~mittal By:
S ity7~/~/~anage ,~/.,~ ~/~/-~--
)
) Dept. Origin: Communit[ Developmen~,~j
) /10/93 (BC~.._.
) Date Submitted: 09
)
) For Agenda Of: 09/22/93
)
) Exhibits: Letter from Cindy Tirro
) dated 8/26/93.
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
SUMMARY STATEMENT
Cindy Tirro, a representative of Indian River Recyclers, has requested
permission from the City Council to utilize Riverview Park to conduct a
swap meet. Dates requested are September 26, October 31, November 28 and
December 26, 1993, with alternate dates of October 3, November 21, and
December 19, 1993.
City Council, at its workshop meeting of September 1, 1993, discussed
current and proposed park policy and deferred the matter to a later date.
Staff is bringing this item before the City Council in light of the dates
requested by this organization. It should also be noted that the
requested date of November 28, and the alternate dates of October 3 and
December 19 have already been committed as rain dates to other
organizations.
Staff has discussed this request with the applicant and it. seems the swap
meet would be more of a commercial venture than a fund raiser. City
Council has in the past prohibited the sale of premanufactured goods.
Therefore, staff would not recommend approval of this request.
RECOMMENDED ACTION
Move to deny the request of the Indian River Recyclers to utilize
Riverview Park for the requested dates.
-¥