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HomeMy WebLinkAboutTuskawilla Trails Water System Purchase Agreement -2004 03 11 BROWN, SALZMAN, WEISS & GARGANESE, P.A. Attomrys at LaUJ Usher L. Brown · Jeffrey P. BuakD Suzanne D'AgrestaD Anthony A. GarganeseD Gary S. Salzmano John H. Ward · Jeffrey S. Weiss Offices in Orlando, I<issimmee, Cocoa & Viera .Board Certified Civil Trial Lawyer oBoard Certified Business Litigation Lawyer DBoard Certified City, County & Local Government Law If.O- .,,,. Af4 y "0 o,~ 2 8 IOfJ.1I ~~,,..p~ !'\fl.. i1 -..; Op i';/"e~ e C/~~/fvQ C(e~~ Debra S. Babb-Nutcher Joseph E. Blitch John U. Biedenharn, Jr. Lisa M. Fletcher Douglas Lambert Katherine Latorre Melanie A. Mucario Michelle A. Reddin Kimberly F. Whitfield Erin J. O'Leary J. W. Taylor Of Counsel May 19, 2004 Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Re: Tuskawilla Trails, Phase II, and Water System Purchase Agreement City of Winter Springs lOur File No. 315-018 Dear Andrea: Enclosed please find the following documents between the City of Winter Springs and Seminole Pines Associates, Ltd.: 1. Original Sale and Purchase Agreement, Tuskawilla Trails Water System; 2. Original First Modification to Sale and Purchase Agreement, Tuskawilla Trails Water System; 3. Original Bill of Sale from Seminole Pines Associates, Ltd. to the City of Winter Springs for the Water System; 4. Original recorded Utility Easement Agreement from Seminole Pines Associates, Ltd. to the City of Winter Springs for the Phase I property; and 5. Original recorded Public Utility Easement Agreement from Seminole Pines Associates, Ltd. to the City of Winter Springs for Phase II. These original documents are being forwarded to your office for safekeeping. 225 East Robinson Street, Suite 660 . P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 . Kissimmee (321) 402-0144' Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net . Email: firm@orlandolawnet Andrea Lorenzo-Luaces, City Clerk City of Winter Springs May 19, 2004 Page 2 If you have any questions regarding this matter, please do not hesitate to contact my office. Anthony A. Garganese City Attorney AAG:jf Enclosures cc: Kip Lockcuff, Public Works/Utility Director (w/enclosures) t. Prepared by and return to: Anthony A. Garganese, Esquire Brown, Salzman, Weiss & Garganese, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 (407) 425-9566 SALE AND PURCHASE AGREEMENT TUSKA WILLA TRAILS WATER SYSTEM THIS SALE AND PURCHASE AGREEMENT ("Agreement"), made and executed this J 5 +-L day of !tpfl ./ ' 2004 by and between the CITY OF WINTER SPRINGS, a Florida municIpal corporation ("Buyer") whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and SEMINOLE PINES ASSOCIATES, LTD., a Florida limited partnership ("Seller"), whose address is 3801 Bee Ridge Road, Suite 12, Sarasota, Florida 34233. WITNESSETH: WHEREAS, Seller owns a mobile home park located within the City of Winter Springs with approximately 148 residential lots; and WHEREAS, Seller currently operates a private potable water system for the use and benefit of the residential lots within the park; and WHEREAS, Seller desires to sell the potable water system to the Buyer so that Buyer may connect its public potable water system to the park and Buyer can decommission the private system; and WHEREAS, Buyer desires to purchase Seller's private potable w'liter system and provide potable water to the residential lots located within the mobile home under the same terms and conditions that Buyer provides potable water to its existing customers and pursuant to its duly adopted rules, policies, and laws. NOW THEREFORE, the parties being fully advised and in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: Section 1. this reference. Recitals. The foregoing recitals are hereby incorporated herein by Page 1 0[9 Section 2. Definitions. The following words and phrases defined in this Agreement shall have the meaning herein prescribed, unless the context clearly suggests otherwise: 2.1 "Buyer" shall mean the City of Winter Springs, Florida, a Florida municipal corporation. 2.2 "Property" shall mean the real property owned by Seller on which the Water System is located and legally described on the attached Exhibit "A," which is hereby fully incorporated herein by this reference. 2.3 "Seller" shall mean Seminole Pines Associates, Ltd., a Florida limited partnership. 2.4 "Water System" shall mean the private potable water distribution system owned by Seller and located on the Property including the water lines, mains, equipment, facilities, manholes, stubs and related appurtenances up to and including the individual water meters, excluding the water plant. Section 3. Sale and Purchase of Water System. Seller agrees to sell, transfer and convey to Buyer and Buyer agrees to purchase, buy and take possession from Seller the Water System and all easements required by Section 5 to service and maintain the Water System and all potable water customers located on the Property. In furtherance of said purchase, Seller agrees to execute at closing a Bill of Sale for the conveyance of the Water System. Section 4. Due Dilieence. 4.1 Upon execution of this Agreement, Buyer shall have sixty (60) days in which to exercise its right to undertake, at Buyer's expense, such physical inspections, tests and other investigations as may be deemed necessary by the Buyer in order for Buyer to evaluate the feasibility of constructing said interconnect between the Water System and Buyer's public water system and for purposes of designing, permitting, and constructing said interconnect. For such purposes, Seller hereby grants to Buyer, their agents, and professionals engaged by Buyer, the right to enter upon the Property and any part thereof during this due diligence period. Any alterations or changes to the Property that are a direct result of the inspecting, testing and investigations shall be repaired and replaced by Buyer. Buyer agrees to indemnify and hold harmless Seller, to the extent permitted by law, from any liability resulting from the acts or omissions of Buyer, and their agents and professionals while conducting the due diligence set forth in this Section 4. 4.2 Seller agrees to fully cooperate with Buyer's efforts to conduct due diligence. Seller further agrees that Buyer shall have the right to inspect and/or copy any and all records maintained by Seller regarding the Water System, including, but not limited to, written correspondence, permits, "as built" drawings, plans, income and Page 2 0[9 expense statements, balance sheets, invoices, Bills of Sale, DEP notices, pleadings, and other documentation relevant to the Water System. Section 5. Consideration for Sale and Purchase. The purchase price for the Water System and all easements shall be the sum of One Dollar ($1.00), which shall be paid in cash by the Buyer to the Seller at closing. In addition to the monetary consideration, Buyer agrees and obligates itself to perform and permit the following at its expense and at no cost to Seller: 5.1 Design, permit and construct the interconnection between the Buyer's potable water system and the Water System within six (6) months from the effective date of this Agreement. Buyer shall have the right to extend the completion date an additional three (3) months by providing written notice to Seller within three (3) months from the effective date of this Agreement. Any additional extensions may be granted by mutual agreement of the parties and shall not be unreasonably withheld. 5.2 Buyer shall provide Seller a full credit for the Buyer's water connection charge (impact and service availability fees) that is currently required to hook up to Buyer's potable water system. Said connection charges, which Seller shall receive full credit for, are the only charges required by Buyer for Seller to connect to Buyer's potable water system. 5.3 Upon completion of the construction of the interconnect set forth in Section 5.1, Buyer shall operate and maintain the Water System as part of its public potable water system. Said operation and maintenance shall include metering and invoicing each lot separately. Section 6. Perpetual Utility Easements. 6.1 Seller agrees to fully execute and convey to Buyer a blanket Perpetual Utility Easement on, over and under the Property in a form deemed acceptable to Buyer and substantially similar to the Utility Easement attached as Exhibit "C," which is hereby fully incorporated herein by this reference. 6.2 Said easement shall allow Buyer to install the infrastructure that is necessary for Buyer to deliver potable water to the Property and to operate and maintain the Buyer's public potable water system. Said easement shall provide for Buyer's right of entry on the Property for utility purposes. 6.3 Buyer shall prepare a legal description and sketch the easement. Said legal description and sketch shall be superimposed over a boundary survey of the Property provided said boundary survey is provided by Seller. Section 7. Customer Deposits and Application. Page 3 of9 7.1. At closing, Seller shall deliver to Buyer a schedule listing all of its existing water customers, including name, address and phone number. 7.2 At closing, Seller shall diligently attempt to have its existing water customers complete and submit to Buyer a potable water application. A copy of said application is attached hereto as Exhibit "B." Section 8. Deliverv of Water bv Buver. The potable water service provided by Buyer under the terms and conditions of this Agreement shall meet the standards applicable to all other water customers of Buyer. Buyer assumes no responsibility or obligation to maintain a particular water quantity, pressure, quality, or service standard. In no event shall Buyer be obligated to deliver potable water to Seller at a higher quantity, pressure, quality, or service standard than Buyer provides to its other potable water customers. Section 9. Conversion to Public Water System. The parties agree and acknowledge that the primary intent and purpose of this Agreement is to convert Seller's private potable Water System into a public potable water system which is owned and operated by Buyer. At such time Buyer completes the interconnect and begins providing potable water to the Property, Seller, at its expense, shall decommission and dismantle the private water plant and remove said plant from the Property within sixty (60) days. Section 10. Representation and Warranties of Seller. Seller hereby represents and warrants the following to and for the benefit of the Buyer: 10.1 Lith!ation. There are no actions, suits or proceedings pending against Seller with respect to the Water System or, to Seller's best knowledge, threatened against or affecting Seller with respect to the Water System or the Water System before any court or administrative body or agency having jurisdiction over Seller or the Water System. 10.2 Title to Acquired Assets. Seller has good and marketable title to the Water System, free and clear of any liens or claims. 10.3 Environmental Matters. There is no civil, criminal or administrative action, suit, demand, claim, hearing, notice of violation, investigation or proceeding pending or, to the best knowledge of the Seller, threatened against Seller or relating in any way to applicable environmental, health and safety laws or regulations. 10.4 Compliance with Laws and Re2:ulations. To Seller's best knowledge, and with respect to the Water System, Seller has not violated or failed to comply with any applicable statute, law, ordinance or regulation of any governmental agency and Seller has not received any notice asserting that such violation or failure of compliance has occurred. Page 4 of9 10.5 Representations True at Closinl!. All representations and warranties set forth in this Agreement shall be true and correct as of the closing date just as if such representation and warranties were made as of and at that date. Section 11. Condition of Water System. The Water System is to be transferred and conveyed by Seller to Buyer in its "as is" condition and Seller makes no representation or warranty whatsoever concerning the condition of the Water System. Section 12. Covenants of Seller. Seller covenants and agrees that, between the time of execution of this Agreement and the closing, Seller shall operate the Water System diligently in the same manner as heretofore and will not make or institute any changes in its method of management or operation unless required by DEP and Seller shall not: 12.1 Sell, transfer, lease or otherwise dispose of any asset relating to the Water System; 12.2 Collect any prepayment for water services to be provided by Buyer after closing; or 12.3 Waive or permit the loss of any substantial right relating to the Water System. Section 13. Closinl!. The transaction described in this Agreement shall be closed and the B~~r shall take pO,ssession of the Water System and the easement property on the I~"" day of Afrt L , 2004. The closing shall take place on the date indicated at City Hall, City of Winter Springs Municipal Building, 1126 East State Road 434, Winter Springs, Florida 32708. At the closing, Seller shall deliver to the Buyer the following: 13.1 Bill of Sale conveying the Water System and all of its constituent parts to Buyer free and clear of all liens. 13.2 Assignments of any and all contracts, tariffs, licenses and permits together with any necessary third party consents. 13.3 Assignment of all easements related to Water System, if any. 13.4 The perpetual utility easements required by Section 6 ofthis Agreement. Section 14. Termination. This Agreement is subject to termination by Buyer under one or more ofthe following conditions: 14.1 The Buyer determines during the due diligence, as allowed under Section 4 of this Agreement, that it is not financially or technically feasible for Buyer to purchase Page 5 of9 the Water System and to connect the Water System to Buyer's public potable water system. 14.2 During a public hearing required by Section 180.301, Florida Statutes, Buyer's City Commission determines that the purchase of the Water System is not in the public interest. 14.3 Buyer is unable to acquire a permit from DEP to construct the interconnect between the Water System and the Buyer's public potable water system. Section 15. Successors and Assi2ns. This Agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. Section 16. Applicable Law. This Agreement shall be governed by and constructed in accordance with the laws of the State of Florida. Section 17. Amendments. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto and approved by the City Commission. Section 18. Entire A2reement. This Agreement supersedes any other agreement, oral or written, and contains the entire agreement between Buyer and Seller as to the subject matter thereof. Section 19. Severability. If any provision of the Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. Section 20. Effective Date. This Agreement shall become effective upon approval by the City of Winter Springs City Commission and execution of the Agreement by both parties. Section 21. Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Seller is not an agent of Buyer. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. Section 22. Soverei2n Immunity. Nothing contained in this Agreement shall be construed as a waiver of Buyer's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on Buyer's potential liability under state and federal law. Page 6 0[9 Section 23.. City's Police Power. Seller agrees and acknowledges that Buyer hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. Section 24. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. Section 25. Permits. The failure of this Agreement to address any particular city, county, state, and federal permit, condition, term, or restriction shall not relieve Seller or Buyer of the necessity of complying with the law governing said permitting requirements, conditions, terms, or restriction. Section 26. Specific Performance. Strict compliance shall be required with each and every provision of the Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may by obtained by suit in equity. Section 27. Attornevs' Fees. In connection with any arbitration or litigation arising out of this Agreement, each party shall bear their own attorney's fees and costs. [Signature Page Follows] Page 7 of9 IN WITNESS WHEREOF the parties have hereunto set their hands and seal on the date first above written. The foregoing instrument was acknowledged before me /JJtltcfJ , 2004, by'J;jchdlt/ W. Gh/aZ5 , Pines Associates, Ltd., who. is _R~!~onll!!Y_lmo\Vtl to me. i J /11- ----.--.-- as identific-ation. '-r Signed, sealed and delivered in the presence of qu;~ '. /f!-u)SJlr-L- 2rZ 1 Q e IAJ 5 (j J'1I e_- ( mt ame of Witness) . aL 7Jil.?\-&-/b:? ';:;L. ~~, f1 It Y\ EfTE C. FR IT 11 tL.U '^- (Print Name of Witness) STATE OF FLORIDA) COUNTY OF SEMINOLE) rH A. REYNOLDS Public, State of Florida .amm. expo Mar. 2, 2008 'rymm. No. DO 284341 AFFIX N.OTARY STAMP JUDITHA.REYNOlDS Notary Public, Staie of Florida My comm. expo Mar. 2, 2008 Comm. No. DO 284341 ATTEST: -fA this --.l..L 7 day of of Seminole or who produced ( i re of Notary P lic i~ JUd/lh4 .r!!;, /)0 (d ~ (Print Notary Name) _ My Commission Expires /lku<<:h,;?, ';':{OOY Commission No.: ])]).2RlfiJ1:1 CITY OF WINTER SPRINGS, a Florida municipal corporation, '1:.,&4 Page 8 of9