HomeMy WebLinkAbout1993 10 12 - GDU Purchase and Sale AgreementRESOLUTION NO. R-93-63
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, PROVIDING FOR CERTAIN DETERMINATIONS,
FINDINGS, AND STATEMENTS AS REQUIRED IN SECTION
180.301, FLORIDA STATUTES; RATIFYING THE CITY OF
SEBASTIAN, FLORIDA/GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM PURCHASE AND SALE AGREEMENT AS
SIGNED BY THE MAYOR AND CITY CLERK, A COPY OF WHICH IS
ATTACHED TO THIS RESOLUTION AS EXHIBIT "A"; PROVIDING
FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN
CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Section 2(b), Article VIII, Florida Constitution,
and the Municipal Home Rule Powers Act, Chapter 166, Florida
Statutes, authorize the City to conduct municipal government,
perform municipal functions, render municipal services and
exercise any power for municipal purposes, except when expressly
prohibited by law; and
WHEREAS, pursuant to its governmental powers granted
pursuant to Chapters 163, 166 and 180, Florida Statutes, and
other applicable laws, the City is authorized to preserve and
enhance present advantages, encourage the most appropriate use of
land, water and resources, consistent with the public interest,
facilities and adequate and efficient provision of water and
wastewater facilities, and conserve, develop, utilize, and
protect natural resources; and
WHEREAS, neither general law nor special act prohibits the
City from acquiring or operating water and wastewater utility
facilities; and
WHEREAS, General Development Utilities, Inc. ("GDU") is the
owner of a water and wastewater system know as "Sebastian
Highlands Water and Wastewater System" (the "System") located
within the boundaries of Indian River County, Florida; and
WHEREAS, GDU desires to sell the System to the City and the
City desires to purchase the System from GDU; and
WHEREAS, the City has examined the assets of the System,
has examined the System's existing financial structure, has
examined the long --range needs and goals of the City relative to
the provision of water and sewer service to the City's present
and future citizens, and has determined that the signing of a
purchase and sale agreement for the acquisition of the System is
in the public interest; and
WHEREAS, the City has successfully negotiated a purchase
and sale agreement with GDU calling for the purchase and sale of
the System to the City; and
WHEREAS, in contemplation of the acquisition of the System,
the City authorized its engineering consultants, Hartman &
Associates, Inc., to prepare a briefing document to comply with
Section 180.301, Florida Statutes (the "Briefing Document"); and
WHEREAS, the Briefing Document has been submitted to the
City Council for review pursuant to Section 180.301, Florida
Statutes; and
WHEREAS, the City has scheduled, duly noticed and held
public hearings pursuant to the requirements of Section 180.301,
Florida Statutes.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that:
SECTION 1. DETERMINATIONS. The City Council has reviewed
and considered the acquisition of the System, as evaluated in the
Briefing Document and in other pertinent information submitted to
the City, and in doing so has considered the following:
a) GDU's most recent available income and expense
statement for the System;
b) GDU's most recent available balance sheet for the
System, listing assets and liabilities and clearly
showing the amount of contributions -in -aid -of -
construction and the accumulated depreciation thereon;
c) A statement of GDU's existing rate base for regulatory
purposes as it relates to the System;
d) The physical condition of the System;
e) The reasonableness of the purchase price and terms;
f) The impacts of the purchase on utility customers, both
positive and negative;
g) Any required additional investment and the ability and
willingness of the City to make that investment;
h) Alternatives to the purchase and the potential impact
on utility customers if the purchase is not made; and
i) The ability of the City to provide and maintain high-
quality and cost-effective utility service.
The City Council's determinations and findings regarding the
items listed above are set forth in the Briefing Document, which
is hereby adopted and incorporated into this Resolution. This
Resolution and the Briefing Document are intended and declared to
be the statement required under Section 180.301, Florida
Statutes, demonstrating that the purchase of the System is in the
public interest. Furthermore, the Briefing Document contains a
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summaYy6oftthe City's experience in water and wastewat&r''ut klity
operation and demonstrates that the City has the financial
ability to provide water and wastewater service. Based upon the
Briefing Document and other evidence and testimony submitted and
considered at the public hearings on September 15, 1993 and
September 22, 1993, the City Council hereby determines and finds
that it is in the public interest for the City to purchase the
System as contemplated in the Briefing Document.
SECTION 2. RATIFICATION OF THE SIGNING OF THE PURCHASE AND
SALE AGREEMENT. The City Council has reviewed and considered the
acquisition of the System owned by GDU and has also analyzed the
City of Sebastian, Florida/General Development Utilities, Inc.
Water and Wastewater System Purchase and Sale Agreement (the
Agreement"), a copy of which is attached to and incorporated in
this Resolution as Exhibit "A". The City Council hereby ratifies
the Agreement, as signed by the Mayor and City Clerk on behalf of
the City. The City Council also authorizes its staff and
consultants to take all actions necessary to complete the
transaction contemplated by the Agreement, and further authorizes
the Mayor and City Clerk to sign all necessary documents, before,
at and after the closing of the purchase contemplated by the
Agreement in order to complete the purchase and sale.
SECTION 3. CONFLICT. All resolutions or parts of
resolutions in conflict herewith are hereby repealed.
SECTION 4. SEVERABILITY. In the event a court of competent
jurisdiction shall hold or determine that any part of this
Resolution is invalid or unconstitutional, the remainder of the
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Resoldtidn - shall not be affected and it shall be prdsUmbd Yj hat
the City Council of the City of Sebastian did not intend to enact
such invalid or unconstitutional provision. It shall further be
assumed that the City Council would have enacted the remainder of
this Resolution without such invalid and unconstitutional
provision, thereby causing said remainder to remain in full force
and effect.
SECTION 5. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
The foregoing Resolution was moved for adoption by
Councilmember The motion was
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seconded by Councilmember,(g 1. and, upon
being put into a vote, the vote was as follows:
Mayor Lonnie R. Powell
Vice -Mayor Frank Oberbeck
Councilmember Carolyn Corum
Councilmember Norma J. Damp
Councilmember Robert Freeland
The Mayor thereupon declared this Resolution duly passed and
City Clerk
SEAL)
Approve as to orm and Content:
Charles Ian Nash, City Attorney
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CITY OF SEBASTIAN, FLORIDA/
GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM
PURCHASE AND SALE AGREEMENT
HF AGREEMENT is made and entered into this day of
D J t _ , 1993, by and between the CITY OF SEBASTIAN, FLORIDA
CITY"), and GENERAL DEVELOPMENT UTILITIES, INC., a corporation
authorized to do business in the State of Florida ("UTILITY").
RECITALS
1. UTILITY is the owner of a water production, storage,
treatment, transmission, and distribution system, and a wastewater
treatment, transmission, collection and effluent disposal system
hereinafter referred to collectively as the "Sebastian Water and
Wastewater System" or the "System") known as the Sebastian
Highlands Water and Sewer System located primarily within the boun-
daries of the CITY OF SEBASTIAN, FLORIDA.
2. Pursuant to the governmental powers provided in Chapters
163, 166, and 180, Florida Statutes, and other applicable laws,
CITY is authorized to preserve and enhance present advantages,
encourage the most appropriate use of land, water and resources,
consistent with public interest, facilitate the adequate and
efficient provision of water and sewerage facilities, and conserve,
develop, utilize, and protect natural resources within its
jurisdiction.
3. UTILITY agrees to sell the System to CITY.
4. CITY has examined UTILITY's Water and Wastewater System
Assets, has examined its existing financial structure, has examined
the long-range needs and goals of CITY relative to the provision of
water and wastewater service to its present and future citizens,
and has determined that the execution of a, purchase and sale
agreement for the acquisition of the Water and Wastewater System
Assets is in the public interest.
5. CITY desires to acquire the System upon the terms and
conditions hereinafter set forth in this Agreement.
ACCORDINGLY, in consideration of the above Recitals and bene-
fits to be derived from the mutual observation of the covenants
contained herein, and ether good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties, the parties agree as follows:
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SECTION 1. RECITALS. The above Recitals are true and cor-
rect, and form a material part of this Agreement.
SECTION 2. PURCHASE AND SALE QF WATER AND WASTEWATER_ SYSTEM.
UTILITY agrees to sell and CITY agrees to buy the complete System,
consisting of all real, personal and mixed property used or held
for use in connection with the System, hereinafter referred to as
the "Purchased Assets" or the "Water and Wastewater System Assets"
or the "System." The Purchased Assets shall not include any cash
derived from monthly rates of UTILITY received by UTILITY, except
as set forth in Sections 3 and 11 hereof.
SECTION 3. PURCHASED ASSETS. On the Closing Date, as defined
below, UTILITY shall sell, assign, transfer, convey and deliver to
CITY, and CITY shall purchase, accept and pay for all of the right,
title and interest, in and to the following property and assets:
3. Real Property. All real property (the "Property"),
owned by UTILITY in fee simple, as described in Exhibit 113.111
attached hereto and made a part hereof, whereupon all water
production, storage, treatment, transmission, and distribution
facilities and wastewater treatment plant, wells, pumping stations,
effluent disposal areas and all other water and wastewater service
facilities are located.
2--k. Plant apd Other Facilities. All right, title and
interest of UTILITY in and to the following assets owned by
UTILITY: all water production, treatment plant, storage,
treatment, transmission, distribution, pumping, and other water
facilities, including, without limitation, water wells and fire
hydrants, and all wastewater treatment plant, wastewater
collection, transmission, pumping, and disposal facilities of every
kind and description whatsoever including, without limitation, all
trade fixtures, leasehold improvements, lift stations, pumps,
generators, controls, collection and transmission pipes or
facilities, valves, meters, service connections, and all other
water and/or wastewater service connections, and all other water
and wastewater physical facilities and property installations in
use in connection with the operation of the System by UTILITY.
3.3. Machinery and Equipment. All machinery, equipment
vehicles, tools (other than non -motorized hand tools), laboratory
equipment, office equipment and other personal property (other than
inventory as described in Paragraph 3.13), owned by UTILITY located
on the Property or utilized by UTILITY exclusively in the operation
of the System, including, but not limited to, those items more
particularly described in Exhibit 013.3" attached hereto and
incorporated into this Agreement.
3.4. Other Ri_qhts. All rights, privileges, easements,
licenses, prescriptive rights, rights -of -ways, and rights to use
public and private roads, highways, streets, and other areas owned
by UTILITY for the construction, reconstruction, maintenance and
operation of the System of UTILITY and the Purchased Assets
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collectively referred to as the "Easements"). The Easements are
more particularly described in Exhibit "3.4" attached hereto and
incorporated in this Agreement. CITY and UTILITY acknowledge and
agree that, as additional consideration for UTILITY entering into
this Agreement, CITY shall convey to UTILITY within five (5) days
following the execution of this Agreement by both parties hereto,
those certain Easements set forth and described in Exhibit 113.4"
attached hereto and incorporated in this Agreement. Such
conveyance shall be a conveyance by the CITY of all of its right,
title and interest in those certain Easements, collectively
referred to herein as the "CITY Easements". The CITY Easements
shall be signed by authorized representatives of CITY and delivered
to UTILITY in the form attached to this Agreement as Exhibit 113.411
and UTILITY shall be entitled to immediately record the CITY
Easements, at its expense, in the Public Records of Indian River
County, upon receipt thereof. Upon closing, UTILITY shall reconvey
to CITY the CITY Easements; provided, however, UTILITY shall not be
required to reconvey to CITY the CITY Easements if the transaction
contemplated in this Agreement fails to close for any reason other
than fault on the part of UTILITY.
3.5. Customer Records.
UTILITY shall provide CITY with all records associated with
its current customers of the System, including customer files
containing information such as service applications and
correspondence, and all billing information, and all information
pertaining to billing of customers, including names, addresses,
account numbers and payment history contained in the UTILITY's
master files.
3.6. Business Records.
All current business records of UTILITY as described in
Exhibit 113.6" attached to this Agreement and incorporated by
reference herein. UTILITY may make and retain copies of all
records delivered to CITY pursuant to this Agreement, at its
expense, before transferring the original or (if the original is
not available, copies of the records) to CITY. CITY agrees that
UTILITY may have reasonable access after closing to all records
delivered pursuant -to this Agreement. The provisions of this
paragraph shall survive the closing. In addition, UTILITY shall
deliver to CITY all as --built surveys, water and sewer design
plants, plats, engineering and other drawings, designs, blue-
prints, plans and specifications for the System to CITY.
3.7. Permits_ and Approvals. Subject to all necessary
regulatory approvals and to all conditions, limitations or
restrictions contained therein, and the transferability thereof,
all permits and other governmental authorizations and approvals
necessary to operate and maintain the System in accordance with all
governmental requirements, as described in Exhibit 113.7" attached
hereto and incorporated by reference herein. UTILITY shall, at its
expense, be responsible for renewing any operating permits and any
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other permits essential to the operation of the System which may
have expired or will expire prior to the transfer of the System to
CITY. UTILITY shall also be responsible for correcting any
deficiencies, at its expense (provided, however, that in no event
shall UTILITY be required to bring suit or expend any sum in excess
of $50,000, in the aggregate, to cure such deficiencies), which are
specifically documented by any regulatory agency prior to the date
on which the System is to be transferred to CITY. CITY agrees to
sign all forms required by governmental agencies to transfer the
permits and approvals from UTILITY to CITY.
3.8. Choses in Action. All choses in action pertaining
to the System or the Purchased Assets, including, but not limited
to, warranty claims, claims for damages, the right to sue for any
past infringement, or other cause of action.
3.9. Customer De os' s. Cash to be paid by cashier's
check or wire transfer in an amount which represents the customers'
water and sewer service security deposits acid accrued interest held
by UTILITY. UTILITY shall provide CITY with a detailed written
description of each customer deposit and any interest accrued
thereon, including the name of the customer, the account number for
the customer, the date on which the deposit was received by UTILITY
from the customer, the amount of interest accrued on each deposit,
the amount of any additional deposits received from the customer
and the date such deposit was received. In the event UTILITY
provides any inaccurate or erroneous information concerning the
customer deposits to CITY, UTILITY shall defend, indemnify and hold
CITY harmless from any claims, actions, expenses or damages,
including costs and reasonable attorneys' fees at trial and/or
appeal, to which CITY may be exposed in the future as a result of
UTILITY providing such inaccurate or erroneous information to CITY.
In consideration for the transfer by UTILITY of these customers'
deposits to CITY, CITY agrees to continue to provide utility
services to those customer for which a deposit is held and, to the
extent consistent with §768.28, Florida Statutes, to indemnify and
hold UTILITY harmless for any claims, actions, expenses or damages,
including costs and reasonable attorneys' fees at trial and/or
appeal, to which UTILITY may be exposed in the future as a result
of the transfer of such customer deposits to CITY. This provision
shall survive closing.
3.10. Unbilled Revenue. Unless otherwise agreed by
UTILITY and CITY, there shall be no unbilled Revenues paid by CITY
because UTILITY shall bill each customer through the Closing Date.
3.11. Contracts and Actreements. UTILITY agrees to
assign to CITY, and CITY agrees to assume, all of UTILITY's right,
title and interest in and to those certain contracts and agreements
listed in Exhibit "3.11" attached to and incorporated in this
Agreement. CITY shall not be obligated to assume any contracts and
agreements except only those listed in Exhibit 113.1.1".
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3.12. Computer Software. Subject to all applicable
licensing agreements and to all applicable copyright laws, non-
proprietary computer software which is used or was used, in the
course of the day to day operations of UTILITY for the System,
including, without limitation, billing programs and accounting
programs, except any computer software that CITY does not desire to
receive or to sub --license. Any license assignment fees payable to
the licensor with respect to any computer software that CITY
expressly elects to receive assignment for, shall be paid by CITY.
3.13. Inventory. All right, title and interest of
UTILITY in and to all inventory specifically described in Exhibit
113.13" attached hereto and made a part of this Agreement. For
purposes of this Agreement, the term "inventory" shall include
items such as hand tools, parts, chemicals, operating supplies,
pipes, nuts, bolts, fittings, screws, meters and meter boxes.
Exhibit 113.13" is separated into two parts, Part A and Part S'for
purposes of Paragraph 11.1(7) of this Agreement. CITY, at its
expense, shall conduct a physical inventory of all items of
inventory as soon as practical after the signing of this Agreement
by the parties hereto. UTILITY shall cooperate and make available
to CITY and its representatives all items of inventory in order to
facilitate the conducting of the physical inventory by CITY.
SECTION 4. AD-P-I-TIONAL RESPONSIBILITIES OF UTILITY. UTILITY
shall provide CITY with up to eighty (80) person hours of general
support services for a period commencing upon the signing of this
Agreement by the parties hereto and ending on the date that is
sixty (60) days after the Closing Date, on an as -needed basis. If
all time is not utilized by CITY within such period, no future
obligation with respect thereto shall exist on behalf of UTILITY.
In addition, UTILITY agrees to assist CITY in aid of transition
following the closing by providing, at the request of CITY,
assistance in billing services and transfer of files at no expense
to CITY, other than any out -of --pocket costs. CITY shall, in making
requests pursuant to this Section 4, avoid any unnecessary
disruption of the normal business operations of UTILITY. The
provisions of this Section shall survive the closing.
SECTION 5. P-URCHASE PRICE AND PAYMENT. CITY agrees to pay to
UTILITY on the Closing Date, and UTILITY agrees to accept as the
complete and full Purchase Price for the System, a total Purchase
Price in the amount of THREE MILLION SIX HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($3,650,000), subject to any adjustments provided
hereinafter. Said Purchase Price shall be paid at Closing in
federal or other immediately available funds by wire transfer to a
bank and bank account designated by UTILITY. Prior to Closing
UTILITY shall deliver wiring instructions to CITY.
SECTION 6. STATUS OF TITLE. Within twenty (20) days
following the signing of this Agreement by UTILITY and CITY,
UTILITY shall deliver to CITY's attorney an updated title
commitment (the "Commitment") for an owner's Title Insurance Policy
issued by First American Title Insurance Company in favor of CITY
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insuring the fee simple title to the Property listed in Exhibit
113.111. UTILITY shall provide CITY with an Owner's Title Insurance
Policy which is an Owner's ALTA Form B Marketability Policy in
favor of CITY in the amount of THREE MILLION SIX HUNDRED FIFTY
THOUSAND AND 00/100 DOLLARS ($3,650,000). UTILITY shall bear the
cost of the title insurance policy, including all costs associated
with procuring the Commitment.
6_._I. Exceptions to Title. The Commitment shall show
UTILITY to be vested with fee simple title to the Property shown on
Exhibit 113.1" subject to the following (the "Permitted
Exceptions"):
1) Ad valorem real estate taxes and assessments
for the year 1993 and subsequent years;
2) Restrictions set out in the recorded plats of
subdivisions covered by the System;
3) Easements for utilities and drainage set out in
such recorded plats of subdivisions; provided, however, that none
of the restrictions or easements set out in such recorded plats of
subdivisions shall prevent, hinder or restrict the present use of
the Property;
4) Restrictions of record (except liens, encum-
brances, or mortgages) that do not impair, restrict, or inhibit the
present use of or improvement to the property as permitted by
applicable zoning and land use regulations presently in effect and
that are not coupled with a forfeiture or reversionary provision;
5) All laws, ordinances, and governmental regula-
tions, including, but not limited to, all applicable building,
zoning, land use and environmental ordinances, regulations,
restrictions, prohibitions and other requirements, none of which
will prevent or hinder the present use of the Property; and
6) All matters which would be disclosed by an
accurate survey of the Property, unless a survey is provided to
UTILITY in a form acceptable to the title insurer in accordance
with recognized standards for surveys in connection with the
issuance of an Owner's Title Insurance Policy.
6.2. Status of Title. If the status of title shown on
said Title Insurance Commitment does not reflect the status of
title as herein set out, then, in that event, upon written noti-
fication thereof to UTILITY which notice shall be given by CITY
within twenty (20) days after receipt of said commitment, UTILITY
agrees to use all due diligence to perfect title and shall have a
period of twenty (20) days from notification of such defects within
which to do so. If CITY shall fail to notify UTILITY within the
aforesaid twenty (20) days, CITY shall, for the purposes of this
Agreement, be deemed to have accepted the status of title as set
forth in the Commitment. In the event that defects are specified
and UTILITY, after exercising all due diligence, cannot clear same
within the time provided in the preceding sentence, then, in that
event, CITY shall have the right to purchase the Property in its
then existing condition of title, or to rescind and terminate this
Agreement without liability by any party to the other(s). Although
UTILITY shall use its reasonable efforts to cause any defects to be
cured prior to the Closing Date, in no event shall UTILITY be
required to bring suit or to expend any sum in excess of $50,000 in
the aggregate to cure title defects, exclusive of mortgages against
the Property which are in a liquidated amount or which UTILITY has
the obligation to discharge on or before the Closing Date under the
terms of this Agreement. Notice of such election shall be given by
CITY to UTILITY, in writing, by either registered or certified
mail, within the time herein prescribed.
SECTION --- 7. SURVEY. CITY shall have the option, at its ex-
pense, to prepare and provide a current survey of all the Property
set out in Exhibit "3.1" prepared by a Florida licensed surveyor in
accordance with applicable law, which survey will be prepared in
accordance with, and certified to UTILITY, CITY, UTILITY's and
CITY's attorneys and the title insurer in accordance with the
minimum detail standards adopted by the Florida Society of
Professional Land Surveyors. Any defect reflected on such survey
including, but not limited to, encroachments of improvements across
a boundary line or onto a utility strip, evidence of overlaps along
a property line, violation of restrictions, set back lines,
possession inconsistent with the Property boundaries or any other
such defect, shall be treated as a title defect under Subsection
6.2. above. CITY shall have twenty (20) days after receipt of said
survey to furnish notice to UTILITY of any title defect shown on
the survey which does not conform to the status of title described
in Section 6 of this Agreement. If CITY shall fail to notify
UTILITY within the aforesaid twenty (20) days, CITY shall be deemed
to have accepted the status of title shown on the survey.
SECTION 8. REPRESENTATIONSTIONS AND WARRANTIES _OF_UTILITY. To
induce CITY to enter into this Agreement, UTILITY represents and
warrants that, as of the Closing Date:
8.1. Organization, Standincr And Power. UTILITY is a
corporation, duly organized, validly existing, and in good standing
under the laws of the state of its formation, and is authorized to
do business in the State of Florida. UTILITY has all requisite
power and authority to own and lease its properties and the Water
and Wastewater System Assets, and to conduct its business as it is
currently being conducted.
8.2. Authority for Agreement. UTILITY has the power and
authority to execute and deliver this Agreement and to carry out
its obligations hereunder. This Agreement has been duly authorized
by all action required to be taken by UTILITY has been duly
executed and delivered by UTILITY and constitutes a valid and
legally binding obligation of UTILITY, enforceable in accordance
with its terms.
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8.3. Good and Marketable Title. Subject to the Per-
mitted Exceptions, UTILITY has good and marketable title to the
Purchased Assets. Notwithstanding anything contained herein to the
contrary, the Property shown on Exhibit 113.4" as easement parcels
are not subject to the fee simple ownership requirements as set
forth in Subsection 6 hereof. UTILITY shall transfer, convey and
assign to CITY at Closing an enforceable easement interest for each
of the easement parcels shown on Exhibit 113.4" so that the present
use of the easement parcels may be continued by CITY for the
operation of the System. The easement interests shown on Exhibits
113.411 conveyed to CITY shall not be subordinate to any superior
interests which could result in CITY losing the right to use the
easement parcel for utility purposes. Any such superior interests
shall be deemed a title defect under Subsection 6.2 hereof and
shall be cured by UTILITY as set forth in that Subsection. At
Closing, UTILITY shall assign to CITY all of its easement interests
in the Property regardless of whether such easement is listed on
Exhibit 113.411.
8.4. No Liens or Encumbrances. Except as otherwise
specifically set forth herein or as may be released prior to the
Closing Date, there are no liens, claims or encumbrances of any
type or nature upon or against the Purchased Assets including, but
not limited to, financing statements or security instruments filed
under the Uniform Commercial Code either in the County where the
land is located or with the Florida Secretary of State.
8.. Litigation. There are no actions, suits, or
proceedings at law or in equity, pending against UTILITY before any
federal, state, municipal or other court, administrative or
governmental agency or instrumentality, domestic or foreign, which
affect the System or any of the Purchased Assets or UTILITY's right
and ability to make and perform this Agreement; nor is UTILITY
aware of any facts which to its knowledge are likely to result in
any such action, suit or proceeding. The UTILITY is not in default
with respect to any order or decree of any court or of any
administrative or governmental agency or instrumentality affecting
the System or any of the Purchased Assets. UTILITY agrees and
warrants that it shall have a continuing duty to disclose up to and
including the Closing Date the existence and nature of all pending
judicial or administrative suits, actions, proceedings, and orders
which in any way relate to the operation of the System. Any such
matters now known to UTILITY shall be initially disclosed within
ten (10) days following execution of this Agreement, and UTILITY
agrees to notify CITY of any new actions, suits or proceedings
within ten (10) days after UTILITY receives notice thereof.
8.6. New Agreements. UTILITY shall not enter into any
extension, developers' agreement, agreement concerning the opera-
tion of the Water and Wastewater System, agreement concerning water
and/or wastewater service capacity, or cause any agreement to be
modified after the date of execution of this Agreement without the
prior written approval of CITY, which approval shall not be
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unreasonably withheld. Notwithstanding anything to the contrary
set forth in this paragraph 8.6, UTILITY need not obtain CITY's
approval to enter into service agreements with individuals that do
not commit in excess of five (5) equivalent residential connections
of water or wastewater service capacity.
8.7. Agreements for Construction. With respect to any
outstanding agreements for construction under which UTILITY has
previously received cash deposits or cash contributions in exchange
for UTILITY's willingness to authorize the planning, permitting,
construction, installation or extension of the water and/or
wastewater system located in Sebastian, UTILITY has fully
discharged all obligations on its part for such planning,
permitting, construction, installation or extension, and UTILITY
has no further obligations, liabilities or expenses for the future
planning, permitting, construction, installation or extension of
said system under said agreements.
8.8. Leases. Except as may be 'listed in Exhibit "3.11"
hereof, none of the Purchased Assets are subject to any interest of
any lessor or lessee and will not be so subject as of the Closing
Date.
8.9. No Contracts in Default. UTILITY is not aware of
any defaults of any parties to any agreements set forth or listed
in any of the Exhibits annexed to this Agreement.
8.10. No Governmental Violations. UTILITY is not aware
and has not been notified of the existence of any violations of any
governmental rules, regulations, permitting conditions or other
governmental requirements applicable to the ownership, maintenance
or operation of the System.
8.11. No Record Violations. The use of the System on
the property set out in Exhibits 113.1" and 113.4" is consistent with
and does not violate any restrictions or conditions of record.
8.12. Absence of Changes. After the date of execution
of this Agreement, UTILITY shall not:
1) undergo any change in its condition of
properties, assets, liabilities, business or operations other than
changes in the ordinary course of business which have not been,
either in any case or in the aggregate, materially adverse to the
operation of the System;
2) acquire or dispose of any of the System's
assets or properties of material value (having a value in excess of
2,000), except in the ordinary course of business or with the
consent of CITY, which shall not be unreasonably withheld;
3) subject to available administrative remedies
pursuant to Chapter 120, Florida Statutes, or any administrative or
judicial procedures or proceedings applicable to particular
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permits, or intentionally fail to comply with all of the System
permit requirements;
4) fail to seek or obtain any permit extensions or
renewals reasonably necessary to insure that all permits related to
the System are valid, extended, or in the process of being
extended, as of the Closing Date.
8.13. Disclosure. No representation or warranty made by
UTILITY, to the best of UTILITY's knowledge, in this Agreement
contains or will contain any untrue statement of material facts or
omits or will omit to state any material fact required to make the
statements herein contained not misleading.
8.14. Survival, of Covenants. UTILITY agrees that its
representations and warranties set forth herein are true and
correct as of the date of the execution hereof, shall be true and
correct at the time of Closing, and shall survive the Closing for
a period of two (2) years.
8.15. FIRPTA. UTILITY is not a "foreign person" within
the meaning of the United States tax laws and to which reference is
made in Section 1445(b)(2) of the Internal Revenue Code of 1986, as
amended. On the Closing Date, UTILITY shall deliver to CITY a
certificate to such effect.
SECTION 9. CONDUCT PENDING CLOSING. UTILITY covenants that
pending the closing:
9.1. Business Conduct. Except as otherwise consented to
in writing by CITY, which shall not be unreasonably withheld, for
the period beginning on the date of execution of this Agreement and
ending on the Closing Date, UTILITY shall:
1) operate the System in, and only in, the usual,
regular and ordinary course and nevertheless comply with and uphold
all applicable governmental requirements and laws;
2) maintain all of the System's- material
structures, equipment and other tangible personal property in good
repair, order and condition, except for depletion, depreciation,
ordinary wear and tear and damage by unavoidable casualty;
3) keep in full force and effect insurance com-
parable in amount and scope of coverage to insurance now carried by
it for the System;
4) perform in all material respects all of its
obligations under agreements, contracts and instruments relating to
or affecting the System's properties, assets and operation;
5) maintain its books of account and records as to
the System in the usual, regular and ordinary manner;
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6) subject to available administrative remedies
pursuant to Chapter 120, Florida Statutes, or any administrative or
judicial proceeding or proceeding applicable to particular permits,
comply in all material respects with all statutes, laws,
ordinances, rules and regulations applicable to it and to the
operation of the System;
7) promptly advise CITY, in writing, of any
material adverse change in the operation of System; and
s) not enter into any transaction, including,
without limitation, the purchase, sale or exchange of property, the
value of which exceeds $2,000, which relates to the System except
in furtherance of this Agreement with the UTILITY, or the rendering
of any service to UTILITY, except in the ordinary course of and
pursuant to the reasonable requirements of the business of UTILITY.
9,2. Risk of Loss. UTILITY shall bear the risk of loss,
damage or destruction of the Purchased Assets by fire or other
casualty prior to Closing Date. If any material portion of the
Purchased Assets is damaged by fire, "Act of God" or other casualty
prior to the Closing Date, CITY shall have the option of (1)
closing and accepting the Purchased Assets "as is", without
reduction of the Purchase Price, together with UTILITY's assignment
to CITY of all rights under UTILITY's insurance policies and all of
the insurance proceeds, if any, relating thereto, but without any
further claim by CITY against UTILITY; or (2) cancelling this
Agreement in which event the parties shall be released from all
further obligations to each other. If any immaterial portion of
the Purchased Assets is so damaged, UTILITY shall either (1) repair
or replace same, or (2) assign UTILITY's insurance proceeds
covering same to CITY at closing (or if there are no adequate
proceeds available, UTILITY shall credit CITY at closing for the
reasonable uninsured value of the damaged property).
9.3. No Encumbrances. Except as otherwise permitted in
this Agreement, from and after the date of the execution of this
Agreement, UTILITY shall not, without the prior written consent of
CITY, which shall not be unreasonably withheld, dispose of or
encumber any of the Purchased Assets.
9_._4 Access to Reco ds. At all times, UTILITY will coop-
erate by opening records and by providing access, upon prior
notice, to records and facilities to CITY and CITY's
representatives to assist in acquainting CITY'S operating and
administrative personnel in the operation of the System; provided
that no such inspection shall materially interfere with the
operation of the System.
9.5. Performance of Closing Conditions. UTILITY shall
perform all of the conditions to closing which should be performed
by UTILITY prior to closing as provided herein.
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9.6. Insurance. Prior to closing, UTILITY shall
maintain existing fire and extended coverage insurance to cover the
cost of any repairs to the Purchased Assets that may be
necessitated by casualty damage. CITY shall not be obligated to
assume or continue to maintain any policy of insurance that was
originally obtained by UTILITY after the Closing Date.
9.7. Examination and Inspection. UTILITY will permit
examination by CITY'S authorized representatives of all existing
contractual obligations, physical systems, assets, real estate,
rights-of-way, easements and inventories utilized by UTILITY in
connection with the System. Such facilities will be properly
maintained by UTILITY within the custom and usage of the industry
up until the Closing Date and shall not otherwise utilize any items
of inventory other than for the operation of the System for the
period ending on the Closing Date.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF CITY. To
induce UTILITY to enter into this Agreement, CITY represents and
warrants as follows:
10.1. Or ani ation Standing and Power o 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. Author ity_forAgreement. 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.
1-0,4. Service. Upon closing the transaction
contemplated in this Agreement, CITY shall, to the extent allowable
by law, continue to provide existing: (i) water and sewer service
to the UTILITY's customers consistent with or superior to the
services currently being provided by UTILITY to its customers; and
ii) water and wastewater service to Atlantic Gulf Communities
Corporation, its successors and/or assigns ("Atlantic Gulf"), and
properties owned by Atlantic Gulf, in a uniform and non-
discriminatory manner with other property and property owners
served by CITY.
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10.5. Performance of Closing Conditions. CITY shall
perform all of the conditions to closing which should be performed
by CITY prior to the Closing Date as provided herein.
10.6. Survival of Covenants. CITY agrees that its
representation and warranties set forth herein are true and correct
as of the date of the execution hereof, shall be true and correct
at the time of the Closing Date, but shall only survive for two (2)
years following the Closing Date.
SECTION 11. ADJUSTMENTS AND PRORATIONS.
11.1. Adjustments. At the time of closing, the parties
covenant and agree that the following adjustments to the Purchase
Price shall be made:
1) Real and personal property taxes on all real
and personal property which is being conveyed by UTILITY to CITY,
shall be prorated as of the Closing Date based on the most current
tax bills available, with the understanding that if tax bills for
the current year are not available, CITY will assume responsibility
for all taxes for the current year but will be entitled to a
reproration when available.
2) All rates, fees and charges for water and sewer
service shall be prorated and adjusted between the parties as of
11:59 p.m. of the Closing Date. No later than twenty (20) days
after the closing, CITY shall reimburse and credit UTILITY for
ninety-five percent (95%) of all accounts receivable zero (0) to
sixty (60) days old as of the Closing Date. UTILITY shall retain
all accounts receivable which are delinquent for more than sixty
60) days (entitling UTILITY to the proceeds thereof if and when
paid). CITY shall promptly turn over to UTILITY any such
delinquent receivables that may be subsequently paid to CITY and
shall use reasonable efforts to assist UTILITY in the collection of
same, including, without limitation, discontinuing service to
nonpaying customers. CITY agrees to pay UTILITY for ninety-five
percent (95%) of all unbilled revenue, which shall be prorated as
of the Closing Date and paid by CITY to UTILITY within thirty (30)
days of billing. All rates, fees, and charges for water and sewer
service after the Closing Date shall be the property of CITY.
3 ) CITY shall reimburse and credit UTILITY for the
cost of all additional capital improvements made to the System by
or on behalf of UTILITY prior to the Closing Date provided CITY has
consented to said improvements.
4) UTILITY shall request all of its suppliers and
vendors to submit final invoices for services, materials, and
supplies, including electricity for the period up to and including
the Closing Date. UTILITY shall be responsible for, and shall
provide to CITY, upon request, evidence of the payment of all such
invoices.
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5) For all those customers who are connected to
and receiving service (water, wastewater, or water and wastewater)
from UTILITY on the Closing Date and have paid connection, plant
capacity, main extension, and/or capital charges ("Connection
Charges") to UTILITY, the Connection Charges previously paid that
specifically apply to the service being received (water,
wastewater, or water and wastewater) shall be retained by UTILITY.
For all those customers who, on the Closing Date, are not connected
to and receiving service from UTILITY and have paid Connection
Charges to UTILITY, and to whom UTILITY has extended completely all
pipelines necessary to provide service, UTILITY may retain main
extension charges previously paid that specifically apply to the
pipelines extended (water main extension charges for water
pipelines, wastewater main extension charges for wastewater
pipelines), and UTILITY shall pay to CITY and CITY shall receive
from UTILITY all other Connection Charges (including impact.fees)
paid by such customers. All other Connection Charges received
prior to the Closing Date by UTILITY from customers of the System
who have not connected to the System, shall be deemed the property
of CITY, and shall be paid to CITY. Except as otherwise provided
in this Agreement, CITY will not accept or recognize any
obligations regarding prepaid or discounted unconnected customers.
Nothing contained in this Agreement shall be construed to require
CITY to exercise the police power in the allocation of water and/or
wastewater service capacity (hereby deemed to be a governmental
function) other than in accordance with CITY's current or future
service allocation or extension rules. CITY agrees, to the extent
consistent with §768.28, Florida Statutes, to indemnify and hold
UTILITY harmless for any claims, actions, expenses or damages,
including costs and reasonable attorneys' fees at trial and/or
appeal to which UTILITY may be exposed in the future as a result of
any transfer of the Connection Charges by UTILITY to CITY.
6) The date of closing shall, for purposes of
adjustments and prorations, be deemed to be a seller ownership day.
7) At closing, UTILITY shall receive a credit in
an amount equal to UTILITY's actual cost of certain inventory
listed in Exhibit 3.13, Part S, to this Agreement— A final
inventory of the foregoing shall be taken not earlier than five (5)
days or later than -the day prior to Closing by representatives of
the parties to prepare the final list of such inventory.
11.2. PayMent of Fees and Taxes. UTILITY shall pay CITY
all franchise fees and utility taxes due through the Closing Date.
SECTION 12. CLOSING EXPENSES. The cost of recording any
releases, satisfactions, or corrective instruments, along with the
documentary stamps and surtax, if any, on the Deed shall be paid by
UTILITY. The cost of recording the Deed shall be paid by CITY.
Certified, confirmed and ratified special assessments or municipal
liens as of the Closing Date shall be paid by UTILITY.
Notwithstanding the foregoing, to the extent any of the foregoing
certified, confirmed or ratified liens are payable in installments,
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1 .r . I
k I i .
CITY shall take title subject to such liens and assume the balance
of such installment payments, subject to appropriate prorations.
SEC'T'ION 13. ENVIRONMENTAL MATTERS.
13.1. UTILITY warrants that the Property described in
Exhibit 113.1" and the Purchased Assets are in a clean and healthful
condition, free of environmental contamination or potentially
harmful physical conditions, other than such contaminants or
harmful conditions permitted by law. No hazardous substance has
been improperly stored upon, disposed of, spilled or otherwise
released to the environment on or in the Property or Easements by
UTILITY or, to the best of the knowledge of UTILITY after due
inquiry, by any -other party. For purposes of this Agreement.the
definition of the term -"hazardous substance" shall be that set out
in Section 101(4) of the Federal Comprehensive Environmental
Response, Compensation and Liability Act, except that for purposes
of this Agreement, the term shall also include (1) petroleum (crude
oil) and natural gas (whether existing asza gas or a liquid); and
2) any substance defined as hazardous or toxic by any state or
local regulatory agency having jurisdiction over the operations of
UTILITY.
13.2. The operation by UTILITY of its utility business
complies in all material respects with all applicable federal,
state and local environmental and occupational health and safety
statutes and regulations.
13.3. UTILITY warrants that any tanks (whether above or
below) on or at the Property or Easements installed or used by
UTILITY are in sound conditions, free of corrosion or leaks which
could permit any release of stored material.
13.4. None of the Property has been used by UTILITY or
by any other party for the processing, storing, or otherwise
utilizing asbestos, polychlorinated byphenyls ("PCB's"), or
radioactive substances. UTILITY has received no notice that any of
the foregoing materials are present on or at any Property or
Easements.
13.5. All hazardous waste resulting from the operations
of UTILITY on or at the Property or Easements have been disposed of
in an environmentally sound manner. None of those wastes have been
disposed of in any site where there has been, is, or, due to the
manner of disposition by UTILITY, will be released into the
environment requiring corrective action, nor has UTILITY received
notice from any state or federal environmental agency of its
possible involvement with any disposal site under investigation by
such agency.
SECTION 14. INDEMNITY.
14.1. UTILITY shall, and hereby agrees to defend,
indemnify and hold harmless, CITY at all tames from and after the
15
Closing Date against and in respect to any damages, as hereinafter
defined, from claims of any person or entity not a party to this
Agreement which arise out of facts or circumstances occurring on or
prior to the time of the Closing. CITY shall notify UTILITY of any
such claims within thirty (30) days of its receipt of notice
thereof. Damages, as used herein, shall include any obligations,
losses, costs, expenses, injunctions, suits, fines, liabilities,
penalties, and damages, including reasonable attorneys' fees at
trial and all appellate levels, whatsoever that CITY incurs as a
result of judgment or order rendered by a Court or agency of
competent jurisdiction, that arise from, (1) any materially inac-
curate representation made by UTILITY in or under this Agreement;
2) breach of any of the warranties made by UTILITY in or under
this Agreement; -(3•) breach or default in the performance by UTILITY
of any of the covenants, conditions, commitments, agreements,
duties or obligations to be performed by it hereunder; (4) any
debts, liabilities or obligations of UTILITY, whether accrued,
absolute, contingent or otherwise, due or to become due, except
those obligations specifically assumed by CITY pursuant to this
Agreement; (5) the breach by UTILITY or the failure of any act or
action to occur that is the subject of any duty, obligation,
covenant, condition, commitment, agreement, representation or
warranty undertaken or made by or on behalf of UTILITY pursuant to
this Agreement; and (6) the ownership and operation of the Water
and Wastewater Utility System or the Water and Wastewater System
Assets by UTILITY prior to the Closing Date. UTILITY agrees to
defend, indemnify and hold CITY harmless from and pay any costs,
fees, penalties, or fines that are imposed by a court or agency of
competent jurisdiction, upon CITY or UTILITY, by reason of
UTILITY's failure to fully comply with any EPA, FDEP, or Water
Management District order, rule, or statute, which may arise
before, during, or after the Closing out of facts or circumstances
occurring on or prior to the Closing Date.
14.2. CITY shall, and hereby agrees to defend, indemnify
and hold harmless, UTILITY at all times from and after the Closing
Date against and in respect to any damages, as hereinafter defined,
from claims of any person or entity not a party'to this Agreement
which arise out of facts or circumstances occurring on or after the
time of the Closing. UTILITY shall notify CITY of any such claims
within thirty (30) days of its receipt of notice thereof. ',Damages,
as used herein, shall include any obligations, losses, costs,
expenses, injunctions, suits, fines, liabilities, penalties, and
damages, including reasonable attorneys' fees' at trial and all
appellate levels, whatsoever that UTILITY incurs as a result of
judgment or order rendered by a Court or agency of competent
jurisdiction, that arise from, (1) any. materially inaccurate
representation made by CITY in or under this Agreement; (2) breach
of any of the warranties made by CITY in or under this Agreement;
3) breach or default in the performance by CITY of any of the
covenants, conditions, commitments, agreements, duties or
obligations to be performed by it hereunder; (4) any debts,
liabilities or obligations of CITY, whether accrued, absolute,
contingent or otherwise, due or to become due, except those
S
obligations which were not assumed by CITY pursuant to this
Agreement; (5) the breach by CITY or the failure of any act or
action to occur that is the subject of any duty, obligation,
covenant, condition, commitment, agreement, representation or
warranty undertaken or made by or on behalf of CITY pursuant to
this Agreement; and (6) the ownership and operation of the Water
and Wastewater Utility System or the Water and Wastewater System
Assets by CITY after the Closing Date. CITY agrees to defend,
indemnify and hold UTILITY harmless from and pay any costs, fees,
penalties, or fines that are imposed by a court or agency of
competent jurisdiction, upon UTILITY or CITY by reason of CITY's
failure to fully comply with any EPA, FDEP, or Water Management
District order, rule, or statute, which may arise after the Closing
out of facts or -circumstances occurring after the Closing Date.
SECTION 15. COVENANT NOT TO ENGAGE COMPETING IN UTILITY
BUSINESS. UTILITY agrees that it shall not engage (the words
shall not" being used in a mandatory definition) in the business
of providing water or wastewater service tawny land located within
CITY including any land annexed into CITY, for the next ten years.
This provision will only become effective upon Closing.
SECTION 16. CITY'S INVESTIGATION. CITY has previously
reviewed and considered the nature of this transaction and has, or
will have, on or before the Closing Date, acted in due diligence to
investigate the System and all aspects of this transaction. Except
only as to those matters which UTILITY has provided for the
representations or warranties in this Agreement, in electing to
proceed with this transaction, CITY shall have determined as of the
Closing Date that the System is satisfactory to CITY in all
respects and is purchasing the System in "as is" condition. CITY
has and will rely solely on CITY's own independent investigations
and inspections, except to the extent of any representations or
warranties made by UTILITY in this Agreement. CITY further
acknowledges and agrees that, except for the specific
representations made by UTILITY in this Agreement, UTILITY has made
no other representations, is not willing to make any
representations and has not held out any inducements to CITY other
than those specifically set forth in this Agreement.
SECTION 17. CLOSING. Provided that all conditions precedent
to closing have, in fact, been so performed, the place of closing
shall be at the City Hall of the City of Sebastian, Florida, or at
such other location selected by CITY in order -to accommodate the
closing of any municipal bonds being issued to finance this
transaction pursuant to this Agreement and such closing shall occur
on November 29, 1993 (the "Closing Date") ,or such earlier date as
the parties mutually agree in writing. Any party shall have the
right to extend the Closing Date thirty (30) days beyond November
29, 1993, by sending written notice to the other parties at least
fifteen (15) days prior to November 29, 1993. Immediately
following the Closing Date, CITY shall have full right to the
possession of all of the Water and Wastewater System, all of which
shall be located in Sebastian, Florida.
17
SECTION 18. C OS NG DOCUMENTS -ANDDOCUMENTS-ANDPROCEDURES.
18.1. Deliveries from UTILITY. At least twenty (20)
days prior to the Closing Date, UTILITY shall deliver to CITY:
1) True, correct and complete copies of the
Articles of Incorporation and Bylaws of General Development
Utilities, Inc., all as amended and in effect on the Closing Date;
2) Warranty deeds to all of the Property owned by
UTILITY as described in Exhibit 113.1" conveying to CITY all of
UTILITY's right, title and interest in all such property and
warranting that such property is free and clear of all liens,
claims and encumbrances other than the Permitted Exceptions, as
that term is defined herein.
3) Instruments of conveyance, in appropriate
recordable form, of all the Easements as described in Exhibit 013.4"
hereof, conveying to CITY all of its right, title and interest in
all such property, together with all utility improvements thereto,
and warranting that such easement rights and rights to use
dedicated rights-of-way are free and clear of all superior
interests which could result in CITY losing the right to use the
easement parcel for utility purposes.
4) Bills of sale or other documents of assignment
and transfer, with full warranties of title, to all Water and
Wastewater System Assets, other than those assets covered by
Paragraphs 18.1(2) and 18.1(3) hereof;
5) All business records sold to CITY hereby;
6) Title insurance policies in the form called for
in Section 6 of this Agreement;
7) All permits, governmental authorizations and
approvals as described in Exhibit 113.711;
8) Standard mechanics lien affidavit -in a form
required by the title, company as to realty and personalty insuring
against any liens, claims or encumbrances upon the Purchased
Assets; and
9) All existing customer deposits for service to
CITY as required hereunder.
18.2. CITY Deliverables. On the Closing Date, CITY
shall send a wire transfer of federal funds to the account
identified by UTILITY or shall deliver a cashier's check in the
amount due to UTILITY as provided in Section 5 of this Agreement.
In addition, CITY shall sign and provide to UTILITY at closing all
assumption agreements provided to CITY by UTILITY prior to closing
in a form acceptable to CITY's attorney with respect to all
contracts being assumed by CITY to which UTILITY was a party prior
18
to closing and, thereby, being assigned by UTILITY to CITY pursuant
to this Agreement. Furthermore, CITY shall deliver to UTILITY a
certified copy of the Resolution of the CITY Council which approved
the transaction pursuant to this Agreement.
18.3 Conditions Precedent _to_Closing. The obligations
of CITY pursuant to this Agreement are contingent upon satisfaction
and UTILITY's performance of the following conditions set forth in
Paragraphs 18.3(a) through 18.3(d) prior to closing (or as
otherwise provided below). If any of the contingencies specified
below are not satisfied prior to closing, CITY shall have the
right, at its option, but not the obligation, to declare this
Agreement null and void by written notice to UTILITY and all
parties shall -be released of any further obligations and
responsibilities pursuant to this Agreement.
a) CITY obtaining, at CITY's expense, a level one
environmental audit indicating that the Property and the Purchased
Assets are in a clean and healthful condition, free of
environmental contamination or potentially harmful physical
conditions, other than such contaminants or harmful conditions
permitted by law. CITY and its agents, contractors or employees
shall have the right to enter upon the Property for the purpose of
performing such audit, providing said activities shall not any way
damage the Property or any part thereof or disrupt the normal
business operations of the Property. Such audit shall be performed
not less than thirty (30) days prior to closing. CITY's failure to
obtain such audit or, in the event CITY shall close this
transaction after having obtained such an audit, shall in no way
relieve UTILITY of any liability with respect to the breach of any
warranty or representation contained in Section 13 of this
Agreement.
b) CITY determining, in its sole and absolute
discretion, that all contracts or agreements, including, but not
limited to, all leases, service agreements and developers'
agreements, which CITY is to assume pursuant to this Agreement or
which shall affect or obligate CITY at any time after the Closing
Date, shall be suitable to CITY. For a period of thirty (30) days
commencing upon delivery of all applicable contracts and agreements
to CITY, CITY shall be entitled to inspect said contracts and
agreements and UTILITY shall give to CITY and its agents,
contractors or employees full access to all such contracts and
commitments and shall furnish to CITY all information concerning
such contracts and commitments as CITY may reasonably request. In
the event CITY fails to notify UTILITY, in writing, of CITY's
election to terminate this Agreement due to the unsuitability of
any contract or agreement within the foregoing thirty (30) day
period, this condition shall be deemed waived.
c) All UTILITY's representations and
warranties contained in this Agreement shall be true as of the
Closing Date as if such representation and warranties were made at
a t
such time, and all such representations of warranties shall survive
the Closing for a period of two (2) years.
d) All corporate, governmental and other
proceedings to be taken by UTILITY and CITY in connection with the
transactions contemplated hereby and all documents incident thereto
shall be reasonably satisfactory in form and substance to CITY, and
to UTILITY, and to their respective attorneys, and CITY and UTILITY
shall have received from each other all such counterpart originals
or certified or other copies of such documents as CITY or UTILITY
may reasonably request.
SECTION 19. RESPONSIBILITY FOR PROFESSIONAL FEES AND COSTS.
Each party hereto shall be responsible for its own reasonable
attorneys' fees, engineering fees, accounting fees and other costs
in connection with the preparation and execution of this Agreement.
SECTION 20.
SECTION 21. COMMISSIONS. UTILITY and CITY warrant to the
other that the transaction contemplated by this Agreement is a
direct, private transaction between UTILITY and CITY without the
use of a broker or commissioned agent.
SECTION 22. FURTHER ASSURANCES. Each of the parties hereto
agrees that, from time to time, upon the reasonable request of the
other party and at the expense of the requesting party, without
further consideration, it shall execute and deliver to the
requesting party any and all further ,instruments, affidavits,
conveyances and transfers as may be reasonably required to carry
out the provisions of this Agreement.
E-CTION__2_3_. 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:
CITY: City Manager
City of Sebastian, Florida
City Hall
1225 Main Street
Sebastian, Florida 32958
407) 589-5330
Fax (407) 589-5570
with a copy to: Charles Ian Nash, Esquire
City Attorney
Frese, Nash & Torpy, P.A.
930 S. Harbor City Blvd.
Suite 505
Melbourne, Florida 32901
407) 984-3300
Fax (407) 951-3741
UTILITY: Charles; E. Fancher, Jr.,
President
General Development Utilities,
Inc.
2601 South Bayshore Drive
Miami, Florida 33131
305) 859-4331
Fax (305) 859-4657
with a copy to: Marcia H. Langley, Esq.
Atlantic Gulf Communities Corp.
2601 South Bayshore Drive
Miami, Florida 33133-3461
3 05) 859-4231
Fax (305) 859-4524
SECTION 24. NO INTERFERENCE WITH EMPLOYMENT. UTILITY will
not interfere with CITY hiring any of the present' operational staff
of the Water and Wastewater System. CITY shall notify UTILITY
thirty (30) days prior to the Closing Date as to which existing
employees of UTILITY to whom CITY will be extending offers of
employment.
SECTION 25. ENTIRE AGRHEKZNT. This instrument and the
Exhibits annexed hereto constitute the entire Agreement between the
parties and supersedes all previous discussions, understandings,
and agreements between the parties relating to the subject matter
of this Agreement.
SECTION 26. AMENDMENT. Amendments to and waivers to the
provisions herein shall be made by the parties only in writing by
formal amendment.
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SECTION 27. DISCLAIMER—OF -THIRD PARTY BENEFICIARIES. This
Agreement is solely for the benefit of the formal parties herein,
and no right or cause of action shall accrue upon or by reason
hereof, to or for the benefit of any third party not a formal party
hereto.
SECTION 28. BINDING EFFECT. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by legal representatives, successors and nominees of
CITY and UTILITY.
SECTION 29, TIME OF THE ESSENCE. Time is hereby declared of
the essence to the performance of this Agreement.
SECTION 3.0. APPLICABLE LAW. This -Agreement shall be con-
strued, controlled, and interpreted according to the laws of the
State of Florida, and the venue for any action or suit brought to
interpret or enforce any of the provisions of this Agreement shall
be filed and maintained in Indian River County, Florida.
SECTION 31. CORROBORATION OF_PAYMENT _AFTER CLOSING. In each
instance in which any party to this Agreement is to receive money
from another party to this Agreement after the Closing Date, the
party who is entitled to receive the money under the terms of this
Agreement shall have the right to inspect, at its own expense,
those books and records of the other party as may be necessary to
corroborate the accuracy of the amount of money received from the
party, within thirty (30) days of receipt of the payment. The
provisions of this Section shall survive the closing.
SECTION 32. CONSTRUCTION. All of the parties to this
Agreement have participated fully in the negotiation and
preparation hereof, and accordingly, this Agreement shall not be
more strictly construed against any of the parties hereto. In
construing this Agreement, the singular shall be held to include
the plural, the plural.shall be held to include the singular, the
use of any gender shall be held to include any other and all
genders, and the captions and paragraph headings shall be
disregarded.
SECTION 33. SEVERABILITY. In the event any term or provision
of this Agreement is determined by the appropriate judicial
authority to be illegal or otherwise invalid, such provision shall
be given its nearest legal meaning or be construed as deleted as
such authority determines, and the remainder of this Agreement
shall be construed to be in full force and effect.
SECTION 34. COUNTERPARTS. This Agreement may be executed in
several counterparts, and each such counterpart shall be deemed an
original, but all such counterparts will constitute one agreement.
SECTION 35. SPECIFIC PERFORMANCE. In the event any party to
this Agreement fails to close on the Closing Date (without any
default by another party), time being of the essence, or in the
WA
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event of any other default by any party of its obligations
hereunder which continues for a period of fifteen (15) days
following written notice thereof from another party, the non -
defaulting shall be entitled to seek all rights and remedies
available at law or equity, including specific performance.
SECTION 36. SURVIVAL OF INDEMNIFICATIONS. All agreements of
indemnity made by any party to this Agreement shall survive the
closing for a period of two (2) years.
SECTION 37. RADON -GAS. RADON IS A NATURALLY OCCURRING
RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN
SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND
STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date and year first above.written.
Signed, sealed and delivered
in the presence of:
Name: Wendy B. Widmann
Name: Richard B. Votapka
Approved as to Form and Legal
Suff'cie y:
Richard E. Torp
Assistant City Attorney
23
CITY:
THE CIT OF' EBASTIAN, FLORIDA
By:
Lonnie R. Powell, M or
Attest. r
Kathy M. O'Halloran,
CMC/AAE, City Clerk
SEAL)
Signed, sealed and delivered
in the presence of:
Name : Ar1 nn2k 4,
Name • Cif i / A1 q " Y n/t,
UTILITY:
GENERAL DEVELOPMENT UTILITIES,
INC., a cor rat'on
Mr. Charles E. Fancher. Jr.
President
Corporate Seal]
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
The foreg ing instrument was acknowledged before me this
day of 1993 by Lonnie R. Powell, the Mayor
of THE CITY OF SEBASTIAN, FLORIDA, on behalf of THE CITY OF'
SEBASTIAN. 4 k*is Dersonallir kno o me or has produced
L) as identification.
GC - ML,/- =-
Notary P lic
State of Florida
SALLY A. MAIO
Npdry Pubik -Skit& W, Ronda
My CWWftWon EWea OCT 05,1994
COMM * cc 045906
Ia,-------------
Name of A knowledger Typed,
Printed or Stamped
cc 0Y5?06
Commission Number
24
IP " ' r
STATE OF FLORIDA
COUNTY OF
he foregoing in rument was acknowledged before me this
Yda of [_
r X , 1993 by Charles E. Fancher, Jr.,
President of GENERAL DEVELOPMENT UTILITIES, INC., a Florida
Corporation, on behalf of the corporation. He is personallyknown
to me or has produced as identification.
I.W1 WFICIAL NOTARY SEAL
O„ HANNAH L WILSON
I_ COMMISSION NUMBER
CC174107
StFO4d MY COMMISSION EXP.
OF Fv FEB, 8 1996
t ry Public
State of Florida
Name of Acknowledger Typed,
Printed or Stamped
Commission Number
F flCNOTAR- r1,ALMANNANL
COMMISSIeOFFEF.
25
5
LIST OF EXHIBITS
TO
CITY OF SEBASTIAN, FLORIDA/
GENERAL DEVELOPMENT UTILITIES, INC.
WATER AND SEWER SYSTEM
PURCHASE AND SALE AGREEMENT
3.1 Land
3.3 Equipment
3.4 Easements, ROWS, and other similar real estate rights
and assets
3.6 Business Records
3.7 Permits and Approvals
3.11 All Assigned and Assumed Contracts and Agreements
3.13 Inventory Part A and Part B
c:\wp\cin\sebasgdu.RE2
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