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HomeMy WebLinkAboutNorth Orlando Water and Sewer Corp. -1984 08 18 May. 24. 2006 2: 08PM CPH AGREEMENT OF PURCHASE AND. SALE Ill'~ ----.. ......w 1l'V"l'f BETWEEN North Orlando Water and Sewer Corp. (.The Uti.li ty. ) Seller AND City of Winter Springs, Florida ("The City") Purchaser No. 4844 P. 2/34 Covering the purchase and Sale of Water System and Sewer System of Seller in Seminole County, Florida. August, 1984 May, 24. 2006 2: 09PM CPH No. 4844 p, 3/34 TABLE OF CONTENTS .. PAGE - . . . . . . . -. . 1 BACKGROUND. . . . . . . . . . . . . . . . 1 . Furnishing of Documents . . . . . . . . . . . . . . 2 Covenant to Sell and Purchase and Description of purohased Assets. . . . . . . . .. . . . . .. . . 7' Condition of Purchased Assets at closing. . . . . . 10 Purchase Price: Payment. . . . . . . . . . .. .. .. .. 11 2. 3. 4. 5. Developers' Agreements, Rights Thereunder, and Service to Customers. . . . . . . . . . . . . . . . 13 15 6. Miscellaneous Agreements. . . . . . . . . . .. ., .. . 7. Utilities Warranties. . . . . . 17 . . . . .. . . . . .. . 8. Permitted Encumbrances. . . . . . . . . 18 . . . . . . 9. Conditions Precedent to Closing . .. . . . . . . 21 . . 10. Closing Date and Closing. . . . . . . *' *' . 22 11. Promise by the City in the Event of Non-Closure 24 12. 13. Title Insurance . . .,.~ .. . . .. .. 25 26 31 ........ Other Miscellaneous Provisions. .. . . . . SIGNATURE PAGE. . . .. . .. .. . . . .. . . . . . . .. . . . . . May. 24. 2006 2:09PM CPH No. 4844 P. 4/34 AGREEMENT OF PURCHASE AND SALE ....1..1:::. 'tHIS AGREEMENT is made this 21 st day of August, 1984, between NORTH ORLANDO WATER AND SEWER CORP., a Florida corpora- tion (hereinafter called the "Utility"), and CITY OF WINTER SPRINGS, FLORIDA, a municipality in Seminole County, Florida (hereinafter called the "City"). BACKGROUND ........,..I..h.h... The Utility owns and operates a water treatment and dis- tribution system (hereinafte~ sometimes referred to as "the Water system") and a sanitary sewage cOllection, treatment and disposal system (hereinafter sometimes referred ~o as "the Sewer system"). The Water System and Sewer System are sometimes herein referred to collectively as the "Utility System"; The Utility System operates under Certificates of Public Convenience and Necessity (the "Certificates") issued. by the Flor- ida Public Service Commission (the "Commission"). It serves now and is available to serve in the future certain territory within the boundaries of Seminole County, Florida, at the election of the City. The acquisition of the Utility System by the City has been determined by the City to be desirable and in the best inter- ests of the residents of the City. The City is therefore desirous of purchasing the Utility System, and the Utility is willing to sell it to the Ci ty upon the terms and conditions set forth in this Agreement. May. 24. 2006 2: 09PM CPH No.4844 P. 5/34 NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein contained, Seller and purchas- er hereby agree as follows: 1. .FURNISHING OF DOCUMENTS. within thirty (30) days after the execution of this Agreement, Utility will furnish to City !he following: ill Exhibit A: Plans and specifications showing the .. IItI ~ 1 . water treatment plants and sewage treatment plants of the Utility System as now constructed (as-built), together with a map showing the water distribution lines, sewage. collection lines and lift stations and appurtenances as now constructed, and all other facilities constituting theOtility System. Exhibit Bl copies of Utility's Certificates issued ---"'- by the Commission and presently in effect relating to the opera- tion of the Utility System. Exhibit C: A schedule and copies of all active agreements, hereinafter referred to as "Developers Agreements ," entered into between utility and owners and developers of property regarding water and sewer service to be provided to the properties of such parties. Exhibit 0: A sched~le and copies of all other agreements entered into between Utility and other parties which would or might be considered to be an encumbrance upon the "Pur- chased Assets. (as defined herein). May. 24. 2006' 2: 09PM CPH No. 4844 P. 6/34 Exhibit E: A legal description of all of the real estate owned and/or legally used by Utility in connection with the operation of the Utility System. Exhibit F:. A description of all private easements - and rights-of-way owned and used by Utility for the construction, operation and maintenance of the Utility System, all of which are transferrable to City. (The parties hereto agree that the Utility makes no representations as to the extent or quality of such land use rights.) In this regard, maps showing_the location of such ease- ; ments, .with true copies of the easement agreements containing the legal descript+ons of the lands covered by the easements will suf- fice. Easements located or shown in recorded plats and rights' to locate lines in dedicated public rightS-Of-way need not be included in this Exhibit. Exhibi t G: Inventory of all equipment, vehicles, ~.M. 11111II Ia'~ tools, parts, ~aboratot:'y equipment, office equipment, unset or reserved meters, and other personal property located on or in con- nection with the property being acquired by City pursuant to this Agreement and that Utility uses in normal operation of the Utility System, at Winter Springs, together with a schedule showing the nature of the ownership or use rights thereof of Utility. With respect to this personal property, Utility represents that same will not be depleted prior to the closinq except in the normal and ordinary course of the operations of the Systems by Utility. May. 24. 2006 2: 09PM CPH No. 4844 P. 7/34 Exhibi t H: Schedule of rates, fees and charges in 'effect at the time of this Agreement. Exhibit I: Copies of current or active permits, applica~ions or other documents, together with effective dates and expiration dates (if any) demonstrating approval of the facilities of the Utility System by all applicable governmental authorities, including, but not limited to: (a) Florida Department of Environ- mental Regulation or the regulatory predecessor, (b) St. Johns River Water Management District, and (c) Public Service Commis- sion. "Exhibit J; A list of customer deposits by name and" account number, setting forth the amount of each individualdepos- it and the aggregate total thereof. This item shall be furnished by Utility at least 10 days prior to the closing and will be up- dated to date of closing. Exhibi t K: Copy of the T'arU"f and Unif.orm Extens ion Policy of Utility. Exhibi t L: Map on' which there is outlined in red the area now being served and the area anticipated to be served in the future by utility. This area is hereafter referred to as the .Service Area". Exhibi t M: Lease/Option Agreement by and between the Florida Land Company and the city, which Agreement shall be executed at or pt'ior to Closing, by which City shall lease the office building located at One North Fairfax Avenue, Winter Springs, Florida 32707, for a period of one year from the date of -,,- May. 24. 2006 2: 10PM CPH No. 4844 P. 8/34 Closing, and providing for a monthly leasehold payment of $1,000. The City shall also be responsible for the payment of all taxes and insurance on the property so leased. Such Agreement shall also contain an option in favor of the City allowing the City to purchase such leasehold property for a purchase price of $100,000 at any time prior to the expira~ion of twelve mo~ths from the date of Closing, subject to an appraisal by the City reflecting that the said $100,000 is the approximate fair market value of the pro- perty to be purchased. Exhibit N: Lease/Option Agreement by. and between Florida Land Company and the City, which Agreement . shall be e~e- cuted at or prior to Closing, allowin9 the City ~o release waste- water effluent from the facilities hereby purchased by the City on and over the surface of certain lands situated in the City of Win- ter Springs, for an initial fee of $2,800 per month, which lease price shall remain in effect for one year after the date of clos- ing. Such Agreement shall als,o contain an option provision in. . favor of the City allowing the City to purchase such leasehold property for a price of $7,500 per acre for all or that portion of the 37.03 acre parcel referenced in the said Lease/Option as may be reasonably required for effluent disposal purposes, according to sound engineering practice. The said option price of $7,500 per acre shall be fixed for two years from the date of Closing. Counsel for the City shall be satisfied as to the terms and condi- tions of such A9reement prior to' its execution, including provi- ... May, 24. 2006 2: 10PM CPH No. 4844 P. 9/34 sions relative to escalation of. the lease payment or option price. Exhibit 0: Copy of agreements dated the 13th day of ~T July, 1981, by and between the Utility and Big Cypress Associates, Limited, allowing fo~ the disposal of sewage effluent into certain ponds and on a golf course and 26th day of April, 1 ~79, between Florida Land Company and Dayron Corporation, securing certain land use and effluent disposal ~ights for the Utility. It is agreed by and between the parties hereto that in the event these Agreements are supercQdQd, such new rights and obligations will be assigned to the City. The Utility shall not, howeve-r, execute any such superceding agreement which diminishes the City's ability to oper- ate its sewage effluent disposal system. Exhibit P:Plans and Specifications of certain -""'" water distribution and sewer collection lines and/or lift stations under construction as of the date of the Agreement,. if any. This Exhibit will be amendQd at Closing to add such facilities the con- struction of which has commenced after the date of this Agreement. t~hi~i~ 9: A schedule of all existing warranties by third parties respecting completed or in progress construction work. Exhibit. R: Developer Agreement to be executed .,...,......... bet.ween the City and Florida Land Company, an affiliate of the Utility, which Agreement is more specifically described in para- graph 4(b) hereof. May. 24. 2006 2: 10PM CPH No. 4844 p, 10/34 Exhibit S: A copy of the Agreement, entitled "Oeve- 1......1.l..1- loper Agreement" between the utility and Florida Residential Com- muni ties, Inc., providing for certain expansion of the aewage effluent disposal capacity of the Utility. The City shall assume', at closing, all of the Utility's rights and obligations to Florida Res,idential Communities, Inc. in that regard. Exhibit 1': copies of the plans and specifioations 'I ".....1' IIIIT and the Florida Department of Environmental Regulation's construc- tion permit for an additional 400,000 gallon per day percolationl evaporation pond, and legal desoription of property upon which same shall be built. Wi th referenoe to the above Exhibi ts, if any of such Exhibits are already prepared and available, they will be deliv- ered t.o City concurrently with the execution of this Agreement. Other Exhibits will be furnished within the thirty (30) day period mentioned above. Wi th respect to plans and maps, reproduaibles will be furnished if available, and if not, copies of same will be acceptable by City, and will be provided at closing. 2. COVENANT TO SELL AND PORCHASEAND DESCRIPTION OF I "V 1 1 "II. '1.." .l.... Purchased ~ssets. The City hereby offers to buy, and the Utility hereby agrees to sell, the Purchased Assets of the utility to the City for the purchase price and upon the terms, and subject to the oonditions and other provisions hereof. ( a) For convenience, the term "purchased Assets" shall be used to designate the assets, business properties and rights which Utility owns Or in which it has an interest (but May. 24, 2006 2:10PM CPH No. 4844 p, 11/34 shall not include the "Excluded Assets" described in paragraph 2(b) hereof), which are being purchased hereunder by City and which include the following: (1) The real estate owned by Utility described in Exhibit E and all buildings and improvements owned by Utility located thereon. (2) l! All easements, licenses and rights-of-way and consents owned by utility for the construction, operation and maintenance of the Utility System, including but not limited to the easements specifically set forth in Exhibit F. ( 3) All water treatment plants, water supply and distribution facilities, sewage treatment plants, sewage collec- tion and disposal facilities of every kind and description whatso- ever, including but not limited to lift stations, transmission mains, distribution mains, supply pipes, collection pipes or faci- lities, valves, meters, meter boxes, senice connections and all other physical facilities and property installations in use in connection with the Utility System operated by the Utility under the name of North Orlando Water and Sewer Corporation. (4) All certificates, immunities, priVileges, per- mits, licenses, license rights, easements, consents, grants, ordi- nances, leaseholds, rights-of-way and all rights to construct, maintain and operate plants and systems for the procuring, distri- bution and transmission of water and for the collection, treatment and disposal of sewage and every right of every character whatever in connection therewith~ all agencies for the supply of water to May, 24. 2006 2: 11 PM CPH No. 4844 P. 12/34 utility or others 1 all water rights, flowage rights and riparian rights, and all renewals, extensions, additions or modifications of any of the foregoing, all rights granted to utility under the Certificates described in Exhibit B. Upon closing, this Agreement shall operate as an assignment of all such rights, however, at City's request Utility shall execute written assignments of such rights. The parties shall cooperate in applying for and obtaining transfer of all such rights requiring regulatory approval or notice. (5) The items of inventory described in Exhibit G. (6) All past and cQrrent customer records, books, prints, p~ans, engineering reports, surveys, specifications, shop drawings, equipment manuals, and other information reasonably re- quired by City which are in possession of utility and its agents on the Closing Date pertaining to the operation of the Utility System. (7) One (1) set of record drawings, including as built drawings where available, showing all facilities of the Utility System. Such drawings shall also include any original tracings, sepias or other reproducible material where same is in possession of Seller. ( 8) All rights. of utility under the Developers I Agreements described in Exhibit C. With respect to any Connection Charges payable under Oevelopers Agreements after the date of closing hereof, the same are included in the Purchased Assets. May, 24, 2006 2:11PM CPH No. 4844 p, 13/34 (b) Excluded Assets: 1*111 l T .b.. 1l... (1) Cash or bank accounts of utility, including previously paid connection charges, which are Utility's sole prop- erty and are not subject to refund to customers, including D~vel- opers or others. (2) Vehicles and such other equipment which are not utilized in the operation and maintenance of the Utility systems at Winter springs and not listed on Exhibit DGn attached hereto. ( 3) The name, good will, and the Florida corpora- tion, North Orlando Water and Sewer Corp. 3. CONDITION OF PURCHASED ASSETS AT CLOSING. "1 " ..... The parties hereto agree that the City is buying the assets of the Utility in an "as is" and "where is. condition with- out relying upon any warranty or representation from the Utility regarding the physical condition of the Purchased Assets or condi- tion of any of the improvements constructed thereon. The. City has made its own investigations of the Purchased Assets and is relying solely upon these investigations in making the purchase described in this Agreement. As an accommodation to the City, Utility shall assign to City at Closing all of its right, title and interest it may have in all engineering and architectural specifications, engineering studies, planning documents, tests, licenses and per- mits (if assiqnable), investigations and surveys relating to the Purchased Assets (hereinafter referred to as the .planning docu- ments.) it may have, but such assignment shall be with the express reservat.ion that. the Utility shall have no responsibility to the May. 24. 2006 2:11PM CPH No. 4844 P. 14/34 City for the accuracy or correctness for any of the matters con- tained therein. City shall not assume or be obligated to pay any sums due for services rendered prior to the date of closing here- under or to the service agreements entered into by utility with respect to the planning documents which are not expressly assumed by City pursuant to this agreement. Likewise, as to leased prop- erty and other properties or assets that the utility is now util- izing and the City intends to continue that use, all rights there- in shall be transferred to the City as is and where is without representation or warranty express or implied as to the condition, location, or fitness of purpose of such properties.. 4. PURCHASE PRICE: PAYMENT The parties hereto have agreed upon a purchase price through a long and complicated negotiating process. The purchase price agreed upon is neither the highest, nor the lowest, amount that could be justified as a fair value of the system according to the terms and conditions of this agreement.. Such agreement has been reached in order to make the acquisition of the Purchased Assets attainable by the City with a view that the City will carry through the written commitments of the Utility to its consumers and developers, which are hereby assumed by the City as part of this transaction. The purchase price is essentially a function of the Utility's cost of the Purchased Assets less depreciation and contributions-in-aid-of-construction received by the Utility through the time of the execution hereof and the City's ability to raise capital. May. 24, 2006 2:11PM CPH No, 4844 P. 15/34 (a) The City will pay a total cash purchase price of $2,200,000 to the Utility at closing. (b) As addit.ional consideration from the City to the ut.ility hereunder, at closing the City will execute a'Develop- er Agreement (referred to hereinabove as "Exhibit RIt ) with the - Florida Land Company, an affiliate of the Utility, whereby 75,000 gallons per day of sanitary sewage treatment plant capacity and 105,000 gallons per day of potable water treatment plant capacity will be reserved for the said Florida Land Company for the use and benefit of Florida Land-owned property. Florida Land, or its assigns, shall, neve~theless, be required to pay connection charg- es to the City for the use of such capacity, which connection charges shall be payable within 180 days of the date upon which additional wetline sewage effluent treatment and disposal capacity becomes available to the City. The City and the Uti~ity agree,. for dis.cus~sion purposes only, that the ftFRC Projectlt will probably be the first source of .,- .- additional se.wage effluent disposal capacity to the City after closing, as the stated ItFRC Project" is an on-9oing endeavor at this time by which the Utility is attempting to increase its sew- age effluent ability over that currently on-line. However, the City.s obligation to deliver an additional 75,000 gallons per day of sanitary sewage treatment plant capacity, and 105,000 per day of potable water treatment plant capacity shall be effective, whether or not such sewage effluent disposal capaOity comes from the FRC project, the. upgrading of the disposal capacity of the ..- May, 24. 2006 2: 12PM CPH No. 4844 P. 16/34 existing system as of the date of closing, or the provision of a substitute disposal source by the City, whichever may first occur. Concerning the provisions of this paragraph 4(b), the City agrees that it has been advised by the utility, but for the covenants of the City to provide additional utility service to ~ the Florida Land Company, in addition to the monetary considera- tion relative to the above, that Florida Land, the owner of all of the outstanding common stock of the Utility, would not have con- sented to the utility's execution of th is Agreement and thereby become obligated to sell the Purchased Assets to the City pursuant hereto. Accordingly, the City and Utility hereby stipulate and agree that the covenants of the City set forth in this Agreement and the performance of the obligations of the City hereunder, and the benefits to accrue to Florida Land by virtue of such perform- ance by the City, are, in all respects, material considerations for the City's execution of this Agreement. 5. DEVELQPERS' ~GREEMENT~, RIG~T~,THEREONDER, AND SERVICE TO CUSTOME~5. "" T....l (a) City shall at Closing assume, without recourse to Utility, in writing all the obligations of Utility relating to all Developers' Agreements listed on Exhibit C attached. onder the terms of such Developers' Agreements and as a result of cer- tain conditions that may from time to time exist, contracting Developers are entitled to certain rights and benefits. City her:eby acknowledges that it has examined all Developers' Agree- May. 24. 2006 2:12PM CPH No. 4844 P. 17/34 ments, including those under which Oevelopers have such rights and the contents of same are known to City and are acceptable to it. (b) The City shall fulfill the Utility's obliga- tions to furnish water and sewer service to all customers present- ly and in the future connected to the Utility systems, inoluding but not limited to developers and/or customers undel:' Developer Agreements attached hereto as Exhibit "Clt. The City shall not, however, be required to engage in major capital expansions of the existing system (other than those expansions and/or improvements specifically set forth herein) for the benefit of future customers in such a way so as to oause major service rate incre~ses to existing c.ustomers. For discussion purposes only, the City has indicated that it'Is its philosophy to require future customers to underwrite the cost of future expansions. Subject to Florida Department of Environmental Regulation approval, the City shall fulfill the Utility's obligations to furnish water and sewer ser- vices to those" platted lots within the utility's certificated ter- ritories as shown by Exhibit RLn and for whiCh water and sewer mains have been previously constructed as of the date of execution of this Agreement. (c) At Closlng, City shall aSSUlIle all of the Util- ity's rights and obligations pursuant to the Florida Residential Communities' Developer Agreement referenced in Exhibit s. "(d) The Utility has secured a construction permit from the Florida Department of Environmental Regulation for a 400,000 gallon per day percolation/evaporation pond sewage efflu- _1A_ May, 24. 2006 2: 12PM CPH No. 4844 p, 18/34 ent disposal system located on land owned by the Florida Land Com- pany in the Highlands PUD of the Ci~y of Winter springs. At Clos- ingt City will purchase, simultaneously with the purchase of the Utility, the property described in Exhibit T from the Florida Land Company for a consideration of $700,000 in cash. As a material condition of t'iS Agreement, the City will continue a~d carry out at its cost the !utility's plan of development of such property as a percolation/evaporation sewage effluent disposal facility. Prior to Closing the City shall satisfy itself as to its ability to use the property in question for effluent disposal purposes and also shall have performed an appraisal in order to be assured that the said $700,000 purchase price is the approximate market value of the property purchased. City may also, if it desires, have the property surveyed in order to insure the exact quantity of real property being transferred. As early as possible after the execu- tion hereof, the utility shall deliver to the City all of its plans for construction of such system as referenced above. 6. MISCELLANEOUS AGREEMENTS. (a) City ,will: (1) From time to time and at any time when request- ed to do so by Florida Land Company, take all steps and do all things necessary, proper or required to provide water and/or sewer service to all areas described in the developer agreement referenced in paragraph 4(b) hereof, subject to the conditions of such sQction and such developer aqreement. _1l;;_ May. 24, 2006 2:12PM CPH No. 4844 p, 19/34 (2) Provide water and sewer services to all proper- ties, improvements thereon and the occupants thereof, looated within the Service ~rea after connection has been made. (3) Preserve and maintain all necessary plant capa- cities of the Utility System available at time of closing and additional plant capacities provided thereafter by City and others. (4) Pursue a program designed to secure additional sewage treatment and disposal capacity for the utility system pur- chased by the City from the Utility. The parties agree that, at a minimum~ 500,009 gallons per. day of additional sewag'e. treatment and disposal capaci ties should be secured from some source, in- cluding the "Iron Bridge" Regional Sewage Treatment Plant, or any other source of disposal that the City may find appropriate, in accordance with sound engineering principals. (5) Continuously and properly operate and maintain the utility System in a condition no less efficient than its cur- rent condition, including the prevention of abnormal or excessive infiltration into the sewage collection system, and exfiltration from the water distribution system, in such manner as are consis- tent with standard and recognized procedures for the operation of water and sewer systems in the State of Florida, to the end that the capacities of the water and sewer plants and systems shall be available at all times to serve the present and future connections thereto. This provision shall not be construed, however, to re- quire the City to engage in any capital improvement program as 4' May. 24. 2006 2: 13PM CPH No. 4844 p, 20/34 regards existing infiltration or exfiltration problems or known problems' with the system, unless such capital improvement is required by duly authorized governmental agency or by custom and usage in the indu~try. 7. UTILI.TY' 5 WARRANTIES : Utility represents and war- .A U rants as follows: (a) Utility is duly incorporated and authorized to do business under the laws of the State of Florida, and its cor- porate status is in good standing. (b) The execution and performance of this agreement has been duly authorized by Utility's Board of Directors and its sole stockholder, the Florida Land Company. (c) From and after the date of the execution of this Agreement, Utility will not, without the prior written con- sent of the Cl ty, dispose, of or encumber any of the Purchased Assets, with. the exception of any transactions occurring in the ordina~ course of Utility's business. (d) The utility 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 the Utility in the ordinary course of business by the Utility. Moreover, Utility warrants and represents that, to the best of its knowledge, there has been no material depletion of the assets of ~he Utility, nor any mater- ial change in the condition of said assets, since the time of the City's inspection of such facilities during 1984, and that such -17- May. 24. 2006 2: 13PM CPH No. 4844 P. 21/34 facilities will be property maintained within the custom and usage of the industry up until the date of closing. (e) In the interim between the execution of this agreement and the closing date, Utility shall operate and maintain the Utility system in a normal and usual manner to the end that the value of the same will not be dim~nished or dep-leted other I than by normal wear and tear. (f) Utility will reasonably cooperate by opening records, providing access to records and facilities to assist in the acquainting of the City's operating and administrative person- nel in the operation of the Utility. 8. PERMITTED ENCUMBRANCES {Title Insurance, Easements, ~tc:J (a) . The title insurance commitments shall commit the insurer to issue ovmer's title insurance policies to City covering the real estate included in the Purch~sed Assets. (sub- stantially in accordance with the ALTA Standard Owner's !,orm A) upon the. recording of deeds to the property, said commitments reflecting Utility's title to the real estate to be marketable and/or insurable, except for the permitted Encumbrances (as herein defined), the standard printed exceptions usually contained in an owner's title insurance pOlicy, and the standard exclusions from coverage. (b) The Permitted Encumbrances shall not be deemed or construed to render Utility's title to the real estate unmark- etable, and City shall not have the right to refuse to close by -18- May, 24. 2006 2: 13PM CPH No. 4844 P. 22/34 reason thereof, and the purchase price for. the Purchased Assets . shall not in any respect be reduced by reason hereof. City shall notify Utility in writing no later than 20 days after receipt of said title insurance commitments of any alleged defect in utili- ty's Seller's title to the real estate (other than thoRe excepted herein and the Permitted Encumbrances), such written notice to include all exceptions, encumbrances, liens, easements, covenants, restrictions or other c!efects in. Utility's title to the real estate (other than the Permitted Encumbrances) which, in the opinion of City's counsel, render or may render Utility's title to the real estate unmarketable and/or uninsurable. Any objections to title to the extent not shown on the notice furnished by City in accordance with the provisions of this paragraph shall be deemed to have been waived by City. for all purposes hereof and Cit.y shall not be entitled to any damages or other 1:emdies. Util- ity Shall be entitled to 90 days time to eliminate any of the Objections to title as set forth in City's notice that Utilit.y chooses to eliminat.e. Utility is not, however, under any obliga- tion to remove any Objection to title, and is not under any obli- gation to bring any action or proceeding in order to make title to the real estate marketable. In the event Utility shall be unable to deliver title as herein required, then City shall have only the following rights: (a) to accept whatever title Utility is able to convey without any abatement of the purchase price, or (b) to reject title. City shall not be entitled to any other rights or remedies. If City shall reasonably reject title under (b), neith- -19- May. 24. 2006 2: 13PM CPH ,No. 4844 P. 23/34 er party shall have any further liability whatsoever hereunder, and in this event Utility shall pay all costs of the title insur- ance conunitments. City shall not object to title by reason of the existence of any mortgage, lien~, encumbrance, covenant, restric- tion or other matter, provided (a) the same may be satisfied with the payment of money and Utility, at its option, elects to do so by paying same at or prior to closing; or (b) any mechanic's lien or other encumbrance which can be released of record, bonded or transferred of record to substitute security so as to relieve the real estate from the burden thereof; or (c) the ti t.Ie insurance company issuing the title insurance commitments referred to above is willing to affirmatively insure-over against such matter and is willing to insure against the enforcement thereof against the real estate. (c) As used above, "Permitted Encumbrancesn mean and include the following: (1) All present, and future building restrictions, zoning regulations and all present and future laws, ordinances, resolutions, regulations and orders of any governmental authority 'having jurisdiction over the real estate and the use thereof. (2) Easements, restrictions, reservations, rights- Of-way, conditions and limitations of record, if any, which are not coupled with any reverter or forfeiture provisions, including (without limitation) any drainage, canal, mineral, road, or other reservations of record in favor of the State of Florida or any of its agencies or governmental or quasi-governmental entities, or as -20- May, 24. 2006 2: 14PM CPH No. 4844 P. 24/34 may be set forth in any "Murphy Deedsn -none of which however shall impair or restrict the use of the Property for the operation of the Systems. (3) Such other matters as are permitted under the terms of this Agreement. 9. CONDITIONS PRECEDENT TO CLOSING. The obligations of .1_... .... "IiI "". i- ill each party to close the transaction contemplated-by this Agreement are subject to the conditions that, at or before the Closing Date: (a) Neither Party shall be prohibited by decree or law from consummating the transaction. (b) There shall not be pending or threatened on the Closing Date any action or proceeding which would prevent the acquisition of the Purchased Assets or hinder the ability of City to close the transaction or pay the purchase price. (c) The Board of Directors and Stockholder of Util- ity and the Board of Directors and Stockholders of Florida Land Company, a Florida corporation, of which utility is a wholly-owned subsidiary, shall have ratified and approved the execution of this Agreement and authorized the sale of the Purchased Assets and cer- tified copies of the resolutions evidencing such ratifications and approval have been delivered to City. Cd) The City Council of Winter Springs, Florida, shall have taken all actions and proceedings, adopted all Resolu- tions or Ordinances necessary to authorize the purchase of the Purchased Assets, and the execution of this Agreement. -21- May. 24. 2006 2: 14PM CPH No.4844 P. 25/34 (e) '1'he. Ci ty shall obtain from Big Cypress Asso- eiates and Dayron Corporation asSurance that the City will be allowed to dispose of sewage effluent on the properties list'ed in Exhibit 0 subsequent to 1988. (f) The issue of Bonds shall have been authorized - and validated and sold to the satisfaction of Bond Counsel for City and there is available to City the proceeds from the sale of sufficient Bonds to pay Utility the sums required to be paid to it at Closing. (g) City assumes in writing the obligations of Uti- lity contained in all Developer's Agreements described in Exhibit C. (h) Both parties shall each have performed all the undert.akings required to be performed by it under the terms hereof prior to or at Closing. (i) All warranties and representations herein of both parties shall be true as of the Closing Date. 10. CLOSING DATE AND CLOSING. (a) Provided the conditions to be performed prior to closing have been performed, this transaction shall be closed within forty-five (45) days after the execution hereof, unless extended by mutual agreement of the parties. (b) At closing: (1) All documentary stamps, if required, ,on the deed of conveyance of real estate included" in the Purchased Assets shall be paid by Utility. -22- Ma y. 24. 2006 2: 14PM CPH No. 4844 P. 26/34 (2) Taxes on the Purchased Assets shall be prorated as of the Closing Date. (3) Accounts receivable due Utility for unpaid water and sewer service as of the date. of Clos.ing Shall belong to Utility. utility shall furnish to City at Closing, a listing of its accounts receivable, by customer and individual amount. No receivables owed to Utility on account of water and sewer ser- vice more than sixty (60) days in arrears shall be included on such list and City shall not be required to pay for such delin- quent accounts. City will acquire such receivables to be collect- ed in the o't'dinary course of business_ CJ:edit shall be .given to the. City fo't' the liabilities assumed for customer deposits and same shall offset against the purchase of the accounts receivable by the CitY_A listing of the customer deposits by lndi viduals and aggregate total of same shall be furnished by the Utility.to the City at Closing_ Should the total of aocounts receivables be greater than the total of customer deposits, then at Closing C~ty shall pay the difference to utility_ Should the total of customer deposits be greater than the total of accounts receivable, then at Closing Utility will credit City with the difference. The parties recognize that the Closing may be estab- lished during a normal billing cycle of Utility_ Gross revenues from water and sewer services shall be estimated based upon the preceding month's billings and a proration of such revenues shall be made with City making payment to Utility for the number of days -23- May, 24. 2006 2: 14PM CPH No. 4844 p, 27/34 elapsed in the then current monthly billing cycle based upon said estimate of the then current billing cycle receivables. (4) All taxes and assessments accrued or owed by the Utility as of the date of Closing shall be and remain the obligation of the Utility. All taxes and assessments imposed or attempted. to be imposed after the date of Closing shall he the obligation of the City. (5) Sums held or collected by Utility for Connec- tion Charges shall remain the Utility's sole and separate party with no claim of the City therefor. (6) All tl'ansfers required or necessary hereunder Shall take place, unless extended by mutual consent. ( 7) Each party shall be responsible for its own respective closinq costs. (8) Each of the respective parties hereto Shall pay the fees of its own attorneys, engineers, accountants, and other professional advisers or consultants in connection with the negotiation, preparation and execution of this agreement and, any documents associated with the closing of the sale and purchase transaction contemplated herein. 11. PROMISE BY THE CITY IN THE EVENT OF NON-CLOSURE. ..AI1__ If the transaction contemplated herein is not closed due to the fault of. City, then City shall reimburse Utility for the cost of the title commitment hereinbelow mentioned. -24- May. 24. 2006 2:15PM CPH No. 4844 p, 28/34 12. TITLE INSURANCE. (a) Good, marketable and insurable title to the real estate portion of the Purchased Assets as well as all land purchased by the City from the Florida Land Company, shall be con- veyed free and clear of all liens, claims and encumbrances, except for "permitted encumbrances. as described in Section 8. At Clos- J ) , ing Utility shall deliver to City a title insurance binder cover- ing the real property as described in Exhibit nSn from a reputable title insurance company, showing the title to be free and clear of all liens and encumbrances except for the standard exceptions and exclusion,s contained in the standard title insurance pOlicy issued in Seminole County, Florida, and the permitted encumbrances. Fee simple title to the real property portion of the Purchased Assets will. be oonveyed to the City at Closing by statutory warranty deed, and the personal property portion of the Purchased Assets wi1~-be conveyed by Bill of Sale Absolute aocompanied by a NO-Lien Affidavit executed by th~. appropriate officer of the Utility. After closing instruments have been recorded in the public. rec- ords, Utility shall have a title insurance policy issued on the binder and .shall have the applicable underlying abstract covering the real property delivered to the City. The amount of the title insurance covering said real estate portion of the assets shall be equal to the value of the land conveyed. The cost of the policy shall be deemed part of the cost of the bond issuance and will be paid from the sale of the bonds at closing. -25- May. 24. 2006 2:15PM CPH No, 4844 P. 29/34 13. OTHER MISCELLANEOUS PROVISIONS. 'f '1P...-r "17' '1".....1 h... L. (a) The parties hereto recognize and agree that time is of the essence in this agreement. (b) The parties recognize and agree that failure of performance by the City of the terms of this agreement may result ~ in irreparable injuries to the Utility and its sole stockholder, the Florida Land Company, their successors and assigns, that may not be adequately redressed by a remedy at law. As such, the City expressly waives any defense of sovereign immunit.y, inadequate remedy at law, speci f 1c performance, and 60 on, to any action brought by the Utility, its successors or assigns, in equity through specific performance, injunctive relief, or extraordinary writ. (0) Prior to, or simultaneously with the execution and delivery hereof, each party will deliver to the other its opinion of counsel (and the opinion of i t.s bond oounsel, if appropriate) that it has the full legal authority to enter into this agreement. (d) This writing embodies the entire agreement and understandings between the parties hereto and there are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superced- ed hereby. No alteration, change 'or modification to the terms of this agreement Shall be valid unless made in writing and signed by the parties hereto. This agreement, regardless of where executed, shall'be governed and construed according to the laws of the State -26- May, 24. 2006 2: 15PM CPH No, 4844 P. 30/34 of Florida. This agreement may be executed in each of several copies, each of which shall be considered an original. (e) Further Documents. Each party will, at any time and from time to time after the Closing date, upon request of the other party, execute, acknolwedge and deliver, or will cause to be executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers, powers of attorney and assurances a~ may be required for: (1) better confirming to City the title or posses- sion of any or all of the Purchased Assets; (2) implementing and performing any of the obliga- tions, covenants and agreements of the parties herein. In no event, however, shall the provisions of this subsection "e" be construed so as to allow access by the City or third parties to the books and records of any parent or affiliated corporation of the Utility, including the Fl.orida Land Company. (f) Assi~nability. This agreement and the rights as well as the liabilities of Utility hereunder now existing or surviving the. closing are assignable by Utility and the term "Otility" is deemed to include the successors and assigns of Util- ity. The rights of City hereunder cannot be assigned. (g) I!2.t;j.ces. Any notice or other document to be given hereunder by any party to the other shall be in writing and shall be delivered personally or sent by certified or registered mail, postage prepaid. -27- May, 24. 2006 2:15PM CPH No. 4844 P. 31/34 If to Utility, such notice shall be addressed to Utility at; North Orlando Water and Sewer Corp. Suite 900, CNA Tower 255 South Orange Avenue Orlando, Florida 32801 Attention: GERALD CBANCELLOa, P. E. with a copy to: \\ ' Myers, Renin, !~~inson, Frank & Richards 1020 East Lafayette Street Suite 103 Tallahassee, Florida 32301 Attention: WILLIAM E. SUNDSTROM, ESQUIRE If to City, such notice shall be addressed to City at: City of Winter Springs 440 North Edgemon Avenue Winter Springs, FL 32707', Attention: JOHN V.TORCASO, Mayor with a copy to: Swann and HaddoCk, P. A. First Bankers Building 135 W. Central Boulevard, Suite 1100 Orlando, Florida 32802 Attention: THOMAS LANG, ESQUI~ and the term nUtility" as used above is deemed to include the suc- cessors and assigns of Utility. (h) All salaries of employees to the Closing Date and all Obligations of tJtility as of the Closing Date to said employees' for accrued vaoation payor severance or for sick term benefits pay shall be paid by Utility. (i) This agreement may be varied, modified or altered only by written instrument signed by both parties. -28- May,24,2006 2:16PM CPH No. 4844 p, 32/34 (j) All representations and warranties heretofore made by either party to the other are merged into this agreement. (k) The headings used are for convenience only, and the parties herein agree that they shall be disregarded in the construction of this Agreement. (1) The parties acknowledge that either shall have against the other the right to seek specific performance to compel either party to act or perform in accordance with the requirements of this Agreement. The right of such specific performance shall be the sole and exclusive remedy of each party against ~he other after closing except that. the City may be made to respond in money damages for failure to honor the. obligations assumed pursuant to the provisions of paragraph 4 hereof. (m) There are no actions, suits, or proceedings pending, to Utility's knowledge" .or affecting the Purchased 1\ssets, at law or in equi ty, before any federal, state, county, municipal or government court, department, commission, board, bureau, agency or instrumentality. which involves the possibility of any jUdgment, assessment Or liability which would affect the title of the City or would be a lien on any of the PurChased Assets or revenues generated by the Utility system or would mater- ially adversely affect the City's use of the Purchased Assets. It is agreed that this subsection "md may be satisfied by the Utili- ty's posting of an appropriate bond,. suretyship contract or other acceptable guarantee to City to cure or relieve any such lien or -29- May, 24. 2006 2: 16PM CPH No. 4844 P. 33/34. encumbrance that might be created prior to or after the date of closing for any of' the causes mentioned herein. (n) There exists no employment contract under which Utili ty is the employer, which cannot be cancelled within thirty (30) days notice or less, and without the payment of any consider- ation of such cancellation. (0) During the periOd of time between the date' of this agreement and the Closing Date, Utility shall maintain ade- quate fire and extended coverage insurance to COver the cost of any repairs to the plants and utility system that may be necessi- tated by casualty damage, and any risk of loss. during the said. period of time shall fall upon the Utility.. From and after the date of Closing, City Shall maintain such adequate fire and extended coverage insurance to assure Utility that City will be in a position to fulfill its obligations to repair and maintain the Utility system,. as s\lch obligations are contained within t.his agreement. Risk of loss shall pass to the City at Closing. (p). It is agreed by and between the parties hereto that all words, terms, and conditions herein contained are to be read in concert I each with the other I and that a provision COn- tained under one heading may be considered to be equally appli- cable under another hearing in the interpretation of this Agree- ment. (q) After the execution of this agreement, Utility will not, without the written consent of the City, which will not be unreasonably withheld, enter into new developer agreements. -30- May. 24, 2006 2: 16PM CPH No. 4844 p, 34/34 IN WITNESS WHEREOF, the parties have hereunto caused this agreement to be executed the day and year aforesaid in coun- terparts, each counterpart to be considered an original. ATTEST: WATER AND SEWER ,lZerIP .el-' By. · , D t:;';€7eH,(.D ,.(. C,#,4.Nc'ril..~o.i'f; VX!r /7i'E,s/Z).{t";?V;- ATTEST: CITY OF WINTER SPRINGS, FLORIDA ~1~ MAR tbN; Clerk . , Mayor THOfoiAS F Attorney Winter FINAL 8/18/84 -31-