HomeMy WebLinkAboutSeminole Utility Company Agreement of Settlement of Condemnation Lawsuit -1989 10 23
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THE CITY OF WINTER SPRINGS, FLORIDA,
versus
SEMINOLE UTILITY COMPANY, et al
AGREEMENT OF SETTLEMENT OF CONDEMNATION LAWSUIT
In the Circuit Court of Seminole County, Florida,
Case No. 89-3144-CA-05-P
By and Between
THE CITY OF WINTER SPRINGS, FLORIDA
(the "City")
AND
SEMINOLE UTILITY COMPANY
(the "Utility")
AND
GULFSTREAM HOUSING CORP.
( "Gulfstream")
Covering the settlement of the City's condemnation lawsuit
of the assets of the Utility and Gulfstream,
as specifically identified herein.
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TABLE OF CONTENTS
1.
RECITATIONS. .
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2.
3.
4.
5.
10.
11.
12.
13.
14.
Furnishing of Documents.
.
Covenant to Sell and Purchase and Description
of Purchased Assets. . . . .
Condition of Purchased Assets at Closing
Purchase Price: Payment.
Developers' Agreements, Rights Thereunder,
and Service to Customers .
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City's Warranties. .
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Utility's Warranties
8.
Gulfstream's Warranties.
9.
Permitted Encumbrances .
Conditions Precedent to Closing.
Closing Date and Closing .
Florida Public Service Commission Matters.
Title Insurance.
Other Miscellaneous Provisions .
SIGNATURE PAGE .
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AGREEMENT OF SETTLEMENT OF CONDEMNATION LAWSUIT
IN THE CIRCUIT COURT OF SEMINOLE COUNTY, FLORIDA
CASE NO. 89-3144-CA-05-P
THIS AGREEMENT OF SETTLEMENT OF CONDEMNATION LAWSUIT in
the Circuit Court of Seminole County, Florida, Case No. 89-3144-
CA-05-P (the "Condemnation Suit") dated as of this 23rd day of
October, 1989, by and between the CITY OF WINTER SPRINGS,
FLORIDA, a municipality organized under the laws of the State
of Florida: (the "City"); SEMINOLE UTILITY COMPANY, a Florida
corporation (the "Utility"); and, GULFSTREAM HOUSING CORP., a
Delaware corporation ("Gulfstream").
R E C I TAT ION S :
1. The Utility owns and operates a potable water
pumping, treatment, storage and distribution system (hereinafter
sometimes referred to as "the Water System") and a sanitary sewage
collection, treatment and disposal system (hereinafter sometimes
referred to as "the Sewer System"). Gulfstream owns and leases to
the Utility certain land which is utilized for effluent disposal
sprayfields (the "Sprayfields").
The Water System, Sewer System
and Sprayfields are sometimes herein referred to collectively as
the "Utility System";
2. The Utility System operates under Certificates of
Public Convenience and Necessity (the "Certificates") issued by
the Florida Public Service Commission (the "Commission"). It
serves now and is available to serve in the future certain terri-
tory within the municipal boundaries of the City of winter
Springs, Seminole County, Florida, at the election of the Purchas-
er.
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3. The acquisition of the Utility's System by the City
has been determined by the City to be in the best interest of the
City. The City has commenced condemnation proceedings and filed a
Condemnation Suit for the purposes of acquiring substantially all
of the assets of the Utility System through condemnation and in
accordance with Florida law.
4. The Utility, Gulfstream, and the City desire to
enter this Agreement of Settlement of Condemnation Lawsuit ("Agree-
ment") with each other under the terms of which, (i) the City will
complete its condemnation of the assets of the Utility's System
and upon such condemnation and the issuance of the Order of Taking
the Utility and Gulfstream will convey and transfer to the City,
subject to the terms and conditions hereof, and the City will
acquire from the Utility and Gulfstream all of the Utility and
Gulfstream's right, title, and interest in and to those certain
properties and assets of the Utility and Gulfstream hereinafter
described which constitute the Utility System; and, (ii) upon
completion of such condemnation the City will assume certain
obligations and liabilities of the Utility which relate to the
Utility System, all as hereinafter provided.
5. In the course of negotiation of this Agreement, the
parties have examined certain valuation reports and appraisals
prepared by their respective consultants and have concluded that
the fair value of the Utility System is reasonably calculable
without resort to litigation. The parties have entered into this
Agreement to avoid the cost and expenses of extended litigation
concerning the condemnation and to resolve issues and disputes as
to the value of the Utility System.
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HOW, THEREFORE, in consideration of the
and of the covenants and agreements herein contained,
Gulfstream and City hereby agree as follows:
1. FURNISHING OF DOCUMENTS. Within fourteen (14) days
after the execution of this Agreement, the Utility or Gulfstream,
as appropriate, will make available to the City, for inspection on
Utility's premises, the following:
Exhibit A: Plans and specifications showing the
water wells, treatment plants, storage tanks, sewage treatment
plants, effluent disposal facilities and the Sprayfields of the
Utility System as now constructed (as-built), together with a map
showing the water distribution lines, sewage collection 1 ines ,
lift stations, effluent disposal facilities, Sprayf ields and
appurtenances as now constructed, and all other facilities
constituting the Utility System.
Exhibit B: 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 proper-
ties of such parties.
Exhibit D: A schedule and copies of all other agree-
ments entered into between Utility and other parties which would
or might be considered to be an encumbrance upon the "Purchased
Assets" (as defined herein).
premises
Utility,
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Exhibit E: A legal description of all of the real
estate owned or legally used by Utility in connection with the
operation of the Utility System whereupon all water treatment
plants, wells, storage tanks, service pumps and related appurte-
nances, and wastewater treatment plants, lift stations, pumping,
collection, and other facilities of all and any type are located,
including all buildings, tanks and other improvements located
thereon.
Exhibit F: A survey of all the properties set out
above prepared by a Florida licensed surveyor, which survey will
be prepared in accordance with, and certified to City, Utility and
the title insurance company issuing the title insurance policy to
Purchaser hereunder in accordance with the minimum detailed stand-
ards adopted by the Florida Society of Professional Land Surveyors
in accordance with Florida Statutes 472.027. Said survey(s) shall
set forth the area contained in each parcel of property, together
with all existing easements, alleys, streets and roads thereon;
show any encroachments upon or protrusions from the property; show
all existing improvements constructed thereon and distances to
boundary lines; specify thereon all dedicated public streets
providing access to the property; and state whether the property
is within any area determined by the Department of Housing and
Urban Development to be flood prone under the Federal Flood
Protection Act, as amended.
Exhibit G: 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
transferable to City.
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In this regard, maps showing the location of such ease-
ments, with true copies of the easement agreements containing the
legal descriptions of the lands covered by the easements will
suffice.
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.
Exhibit H: Inventory of all equipment, vehicles,
tools, parts, laboratory 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, together with a schedule showing the nature of the owner-
ship or use rights thereof of Utility. with respect to this
personal property, Utility represents that same will not be deplet-
ed prior to the Closing except in the normal and ordinary course
of the operations of the Utility System by Utility and replace-
ments and additions thereto will be acquired by Utility prior to
Closing in the normal and ordinary course of the operations of the
Utility System by Utility.
Exhibit I: Tariff of Utility which shall include a
schedule of rates, fees and charges in effect at the time of this
Agreement.
Exhibit J: Copies of current or active permits,
applications 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,
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-including, but not limited to: (a) Florida Department of Environ-
mental Regulation or its regulatory predecessor, (b) St. Johns
River Water Management District, and (c) Florida Public Service
Commission.
Exhibit K: A list of customer deposits and accounts
receivable by name and account number, setting forth the amount of
each individual deposit or receivable and the aggregate totals
thereof. This item shall be furnished by Utility at least 10 days
prior to the Closing and will be updated to date of Closing.
Exhibit 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".
Exhibit M: Copy of annual report as filed by Util-
ity with the Florida Public Service Commission for the calendar
years ending December 31, 1986, 1987 and 1988, plus an interim
financial statement, in the nature of the said Florida Publ ic
Service Commission Annual Report, completed through the period
ending thirty (30) days prior to Closing.
Exhibit N: Developer Agreement to be executed
between the Winter Springs Development Joint Venture, a Florida
partnership, and the City, which agreement is more specifically
described in Article 4(g) hereof.
Exhibit 0: Plans and Specifications of certain
water withdrawal, pumping, treatment, storage or distribution and
sewer collection, treatment, or effluent disposal facilities,
including lines or lift stations of any nature under construction
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~s of the date of the Agreement, if any. This Exhibit will be
amended at Closing to add such facilities the construction of
which has commenced after the date of this Agreement.
Exhibit P: A schedule of all existing warranties by
third parties respecting completed or in progress construction
work.
Exhibit 0: The form of warranty deed(s) to be deliv-
ered by Utility for the real estate portion of the Purchased
Assets to the City at the time of Closing.
Exhibit R: The form of warranty deed(s) to be deliv-
ered by Gulfstream Housing Corp. for the effluent Sprayfields to
the City at the time of closing.
Exhibit S: Form of bill of sale to be executed and
delivered by Utility to the City at the time of Closing.
Exhibit T: Definitive list of "Excluded Assets" as
referenced in Article 2(b)(3) hereof.
Exhibit U: Definitive list of all operating and
vendor contracts to be assumed by City pursuant to the provisions
hereo f .
Exhibit V: List of items or expenses to be prorated
at closing, if any, as called for pursuant to the provisions of
paragraph lO(b)(9) hereof.
Exhibit W: Description of the effluent Sprayfields
to be conveyed by Gulfstrearn to the City at Closing.
Exhibit X: General release to be executed by Util-
ity in favor of City at Closing relative to condemnation lawsuit
referenced hereinabove.
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~ Exhibit Y: General release to be executed by Gulf-
stream in favor of City at Closing relative to condemnation
lawsuit referenced hereinabove.
Exhibi t z: General release to be executed by any
and all others claiming interest in the property subject to the
condemnation lawsuit referenced hereinabove to be executed at clos-
ing in favor of City.
Exhibit AA: Form of general release to be executed
by Topeka in favor of City in order to break the escrow arrange-
ment described in Article 10(b) hereof, if applicable.
Exhibit BB: A schedule of any and all Utility
insurance policies in force covering the Utility or Gulfstream as
it relates to the Sprayfields or the Purchased Assets for a period
of eight (8) years prior to the date of closing hereof, indicating
the name and address of the carrier, the policy number and the
type of coverage provided.
Exhibit CC: A schedule of payroll and pension data,
including fringe benefits, group health and life insurance, and so
on, if any, of all employees employed by the Utility thirty (30)
days prior to Closing. Such schedule shall show also show actual
and contingent liabilities of the Utility to such employees and
all employees of the Utility for a period of eight (8) years prior
to Closing.
Exhibit DD: A schedule detailing plant, property,
equipment, and depreciation schedules of the Purchased Assets.
It is agreed by and between the parties hereto that any
and all documents, contracts, or other agreements affecting City's
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title to the Purchased Assets, or obligations of the Utility not
provided to the City during the disclosure period, shall not be
condemned or acquired by the City hereby and the Utility shall
remain responsible as obligor thereunder. The City agrees to
assume responsibility to the extent of disclosure of the Utility's
obligations, in accordance with the provisions hereof, but the
City specifically disclaims any obligation to assume any duty or
to perform any promise made by the Utility or Gulfstream which is
not so disclosed to the City.
With reference to the above Exhibits, if any of such
Exhibits are already prepared and available, they will be
delivered to the City within a reasonable time after the execution
of this Agreement. Other Exhibits will be furnished within the
fourteen (14) day period mentioned above. The City shall have
twenty-one (21) days from the date of its receipt of each such
exhibit for its review thereof and within which to either approve
or disapprove of same. Should the City fail to advise Utility or
Gulfstream of its disapproval of any such exhibit within said
twenty-one (21) days, then for all purposes hereof the City shall
be deemed to have approved same. Should the City advise Utility
or Gulfstream within said twenty-one (21) days as aforedescribed
of its disapproval of any such Exhibit, then in such event the
parties shall be released of any further obligation to each other
arising hereunder. With respect to plans and maps, reproducibles
will be furnished if available, and if not, copies of same will be
acceptable by the City, and will be provided at Closing. All
exhibits will be updated to the time of closing, if appropriate.
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2. COVENANT TO SELL AND PURCHASE AND DESCRIPTION OF
PURCHASED ASSETS. The City hereby offers to buy, and the Utility
and Gulfstream hereby agree to sell, the Purchased Assets of the
Utility and Gulfstream to the City for the Purchase Price and
upon the terms, and subject to the conditions and other provi-
sions hereof.
(a) For convenience, the term "Purchased Assets"
shall be used to designate the assets, business properties and
rights both tangible and intangible which Utility and Gulfstream
own or in which they have an interest regarding the "Utility
System" (but shall not include the "Excluded Assets" described in
paragraph 2(b) hereof), all of which which are being purchased
hereunder by the 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) The real estate owned by Gulfstream, described
in Exhibit "W", together with all buildings and improvements
located thereon.
(3) All easements, licenses and rights-of-way and
consents owned by Utility or Gulfstream for the construction,
operation and maintenance of the Utility System.
(4) All water treatment plants, water supply and
distribution facilities, sewage collection, treatment and disposal
facilities of every kind and description whatsoever, including but
not limited to pumps, plants, tanks, lift stations, transmission
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mains, distribution mains, supply pipes, collection pipes or facil-
ities, effluent disposal facilities, the Sprayfields , valves,
meters, meter boxes, service 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
Seminole Utility Company, including the items of Inventory
described in Exhibit H attached hereto together with' all additions
or replacements thereto.
(5) All certi f ic ates , immunities, pr i v ileges ,
permits, licenses, license rights, easements, consents, grants,
ordinances, leaseholds, rights-of-way and all rights to construct,
maintain and operate the Utility System and its plants and systems
for the procuring, distribution and transmission of water and for
the collection and disposal of sewage and every right of every
character whatever in connection therewith; all agencies for the
supply of water to the Utility System or others; all water rights,
flowage rights and riparian rights, and all renewals, extensions,
additions or modifications of any of the foregoing; together with
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.
(6) The items of inventory described in Exhibit H.
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(7) All past and current customer records, prints,
plans, engineering reports, surveys, specifications, shop draw-
ings, equipment manuals, and other information reasonably required
by the City which are in possession of Utility, Gulfstream, and
their agents (but not its attorneys) on the Closing Date
pertaining to the operation of the Utility System.
(8) 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 Utility or Gulfstream.
(9) All rights of Utility under the Developers
Agreements described in Exhibit C.
(b) Excluded Assets:
( 1) Cash or bank accounts of Utility which are
Utility's sole property and are not subject to refund to cu~tom-
ers, including Developers or others.
(2) Escrow and other Utility provisions for
payment of federal and state income taxes. As Utility remains
responsible for filing and satisfying income tax obligations,
such escrow or other funds held by the Utility shall remain with
the Utility after closing.
(3) Such other equipment which is not utilized in
the operation and maintenance of the Utility Systems in Seminole
County and listed on Exhibit "T" hereof and excluded from Exhibit
"H" hereof.
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(4) All notes and accounts receivable of Utility
provided however that, except as otherwise specifically provided
for herein, Utility shall remain obligated to pay all accounts
payable and other payables of Utility incurred or accrued prior
to the Closing.
(5) The name and the Florida corporation, Seminole
Utility Company.
3. CONDITION OF PURCHASED ASSETS AT CLOSING.
Utility and Gulfstream have advised the City that,
after due inquiry, they have no knowledge of any material
defects, patent or latent, in the Purchased Assets being conveyed
to the City hereby. Utility warrants that the condition of the
purchased assets at Closing shall be good, reasonable wear and
tear excepted. As an accommodation to the City, Utility shall
assign to the City at Closing all of its right, title and inter-
est it may have in all engineering and architectural specifica-
tions, engineering studies, planning documents, tests, licenses
and permits (if assignable), investigations and surveys relating
to the Purchased Assets (hereinafter referred to as the "planning
documents") it may have. The City shall not assume or be obligat-
ed to pay any sums due for services rendered prior to the date of
Closing hereunder or to the service agreements entered into by
Utility with respect to the planning documents which are not
expressly assumed by the City pursuant to this Agreement. Like-
wise, as to leased, easement, or other property and other assets
that the Utility lS now utilizing and the City intends to
continue that use, all rights therein shall be transferred to the
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City'at the expense of the Utility. As to leased, easement or
other property or other assets that the Utility is now utilizing
and the City intends to continue that use, all rights therein
shall be transferred to the City in good condition, as that term
would be defined by custom and usage in the trade.
4. PURCHASE PRICE: PAYMENT
(a) The City hereby agrees to pay, and the Utility here-
by agrees to accept, the City's Bond Anticipation Note ("BAN"), as
described hereinbelow, in the amount of $10.5 million for the
Purchased Assets of the Utility System. Addi tionally, the City
shall pay to the Utility an amount of $235,000, also by BAN as
described hereinbelow, to reimburse Utility for its expenses for
the defense of the condemnation lawsuit referenced hereinabove,
which expenses shall include all of Utility's legal, engineering,
appraisal, and other fees and related expenses.
(b) At Closing, Gulfstream shall convey to the City the
effluent Sprayfields described in Exhibit "W" hereof in exchange
for the City's BAN, as described hereinbelow, in the amount of
$1,500,000. Additionally, the City shall pay to Gulfstream an
amount of $65,000, also by BAN, as described hereinbelow, to reim-
burse Gulfstream for its expenses of the defense of the condemna-
tion lawsuit referenced hereinabove, which expenses include all of
Gulfstream's legal, engineering, appraisal, and other fees and
related expenses.
(c) The acceptance by Utility and Gulfstream of the
consideration referenced herein shall amount to a complete release
of the City from and against any and all claims which Utility or
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. Gulf:;tream do or might have against the City in relationship to
said condemnation lawsuit.
(d) The purchase price will be paid by the City's
delivery of the BAN's or their equivalent, carrying an interest
rate not exceeding 6.5%, adjustable to market on the date 0 f
closing. Said BAN's may be consolidated into one or more Notes,
upon the election of the Utility and Gulfstream and may additional-
ly be assigned at Closing, according to the same election, subject
to the terms and conditions herein. The BAN's will carry a 5-year
term with interest only to be paid on an annual basis and with the
full principal being due and payable at maturity. The City shall
have a right of prepaYment of all or a portion of the BAN's, with
no penalty. The purchaser of the BAN's will be the firm of Donald-
son, Lufkin & Jenrette Securities Corporation, the duly appointed
financial advisor to the Utility, or such other designee of the
Utility as shall be acceptable to City. The BAN's represent the
projected value of the net available cash flow of the Utility five
years from the date of the closing on said BAN's. Additionally,
the City recognizes that the Utility has constructed certain valu-
able capital assets represented by plant and equipment which may
be utilized by the City in the future to serve additional
customers. Therefore, Utility shall also receive from the City a
futures contingent price, the amount of which shall be paid at a
rate and for the number of connections to be agreed upon during
the due diligence process by the nationally recognized firms of
Donaldson, Lufkin and Jenrette Securities Corporation, represent-
ing Utility and Gulfstream, and Rachlin & Cohen, certified public
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,accountants, representing the City, for additional Equivalent
Residential Connections ("ERC' s") added to the Utility System and
which utilize the facilities constructed by and being conveyed by
the Utility to City within fifteen (15) years after the closing
date on the BAN's referenced hereinabove. A definitive schedule
and agreement as to the number and value per ERC of such futures
shall be approved by the parties hereto at Closing. The number of
ERC's for which futures treatment shall be available to Utility
shall be that number of approved ERC' s that can be served and
hereby sold to the City which City may in turn sell to others
subsequent to the Closing hereof. This number does not include
those connections on line as of the date of Closing, or the number
of connections which will be added to the Utility System during
the 5-year period subsequent to Closing and which are guaranteed
to the City pursuant to the Developers Agreement referred to in
Article 4(g) hereof. Installment paYments on this futures contin-
gent amount shall be made by the City delivering to the Utility
cash or bonds of value equaling the amount of the futures contin-
gent paYment due on each Accounting Date, which shall be defined
as September 30th of each year commencing after the ERC's guaran-
teed herein are delivered and for fifteen (15) years thereafter,
based on the number of such additional ERC' s added during the
prevous year. Within twenty (20) days of the date hereof, Utility
and Gulfstream shall provide to City a specimen BAN along with an
issuance checklist for review and approval by City's bond counsel.
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(e) The amount of consideration to be paid by the City
to Utility and Gulfstream as referenced herein, shall be the total
amount of consideration paid under any circumstances by the City
for the Utility System. Utility and Gulfstream shall be respons-
ible for paYment of all of the costs and expenses related to the
sale of the BAN's referenced hereinabove, other than normal and
customary City expenses, which shall include the City's bond coun-
sel, legal counsel, special counsel, accounting, engineering, and
related fees and expenses.
(f) It is contemplated by the parties hereto that the
redemption of the BAN's at maturity will be funded from the net
proceeds of 30-year long-term water and sewer revenue bonds to be
issued by the City utilizing the net revenues and other legal
funds of the Utility System being acquired from the Utility.
Therefore, it is necessary for the Utility to provide such finan-
cial guarantees that will assure City of the adequacy of the net
revenues and other legal funds arising from the City's operation
of the Utility System hereby being acquired. In order to insure
the above, certain prerequisites to the acquisition by the City of
the assets of the Utility, and the Closing of this Agreement is,
therefore, subject to the completion of those steps which include
the following:
(1) The entry of the Final Order of Taking of the
Circuit Court in and for Seminole County in its case no. 89-3144-
CA-OS-P approving the City's condemnation of the assets of the
Utility;
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(2) The approval by the Board of Directors of the
Utility, the Board of Directors of Gulfstream, and the City
Council of the City of the execution of this Agreement;
(3) The City's prior compliance with the provisions
of its charter and other legal prerequisites such as holding the
hearing required pursuant to Section 180.301, Florida Statutes;
(4) The completion of the accounting, engineering
and legal due diligence that would be undertaken by both parties
in the ordinary course of business subsequent to the execution of
this executory Agreement of Settlement of Condemnation Lawsuit;
(5) The verification and acceptance by the City
that the cash flow projections prepared by Donaldson, Lufkin and
Jenrette and delivered to the City's accounting consultants, as
regards water and sewer revenues, are both appropriate and
reasonable.
(6) The issuance by the nationally recognized
certified public accounting firm of Rachlin & Cohen of its
opinion as to the fairness to the City of the terms and conditions
hereof;
(7) The issuance and delivery of the one or more
BAN's referenced hereinabove.
(g) At Closing, the City and Winter Springs Joint
Venture (which is legally affiliated with Gulfstream) shall enter
into a Developers Agreement. Said Agreement shall provide, at a
minimum, that Winter Springs Joint Venture will take or pay for
not less than that number of ERC' s of water and wastewater
capacity per year, each year for a period of five (5) years that
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,wilL, in the joint opinion of Donaldson, Lufkin and Jenrette, and
Rachlin & Cohen, be required in order to safely provide that level
of net cash flow necessary in order to provide the City the abil-
ity to issue and sell the long-term water and sewer utility
revenue bonds, as described in the next sentence, needed in order
to retire the BAN's referenced hereinabove. Said long-term bonds
shall be rated AAA or better, and shall be issuable without
increasing rates to the City's customers over existing City's
rates, except for increases related to inflation and changes in
the cost of operation of the City's Utility System. Notwithstand-
ing anything contained herein to the contrary, however, Winter
Springs Joint Venture shall have the right to purchase up to 300
ERC's of water and wastewater capacity per year. The Purchase
Price for such water and wastewater ERC' s shall be the price
prescribed by the City in the Developer Agreement, which price
shall not be increased during the term of the Developers Agreement
if such connections are supported by guaranteed revenues, other
than increases instituted in order to comply with requirements of
duly authorized governmental authorities. In order to assure the
City that the water and wastewater ERC's will be paid for accord-
ing to the schedule to be agreed upon by Donaldson, Lufkin and
Jenrette and Rachlin & Cohen, as referenced above, said Developer
Agreement shall be supported by an irrevocable letter of credit
which guarantees the developer's performance thereunder. It is
the intention of the parties hereto that the proceeds payable by
the Winter Springs Joint Venture to the City pursuant to said
Developer Agreement shall be segregated into a special account,
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whiSh shall bear interest and shall be retained by the City to
support the effect of interest fluctuations that may occur from
the time of the Closing hereof to that time when long-term bonds
are to be issued by the City for purposes of paying the BAN's
contemplated herein. The parties further agree that at the time
of the execution hereof, the prevailing long-term interest rate on
typical municipal water and sewer revenue bonds, carrying a AM
rating, shall not exceed 8.0%, with a coverage factor of 115% over
a 30-year amortization period. Nothing contained herein shall be
construed so as to preclude City from operating its Utility System
in the ordinary course of business subsequent to the Closing
hereof including, but not limited to, the City's institution of a
program charging and collecting guaranteed revenues.
(h) Utility and City recognize that the City has now
outstanding certain water and sewer revenue bonds. The Closing
hereof is subject, therefore, to the receipt of the unqualified
opinions of the City's bond counsel that the transactions contem-
plated hereby may be consummated without violating the terms and
conditions of any outstanding City bond purchase agreement or
indenture.
5. DEVELOPERS' AGREEMENTS. RIGHTS THEREUNDER. AND
SERVICE TO CUSTOMERS.
(a) The 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. Under the terms of such Developers' Agreements and as
a result of certain conditions that may from time to time exist,
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contracting developers are entitled to certain rights and
benefits. The City hereby acknowledges that it will examine all
such Developers' Agreements within twenty (20) days after deliv-
ery to the City, including those under which developers have such
rights and the contents of same shall be considered known to the
City if the City does not object to same within twenty (20) days
thereafter.
(b) The City shall fulfill the Utility's obliga-
tions to furnish water and wastewater service to all customers
presently and in the future connected to the Utility Sys terns,
including but not limited to developers or customers under Develop-
er Agreements attached hereto as Exhibits "C" and "N". The Util-
ity represents to the City that it has not entered into any commit-
ment, agreement, or obligation to provide utility service whatso-
ever, other than as provided in the Developers' Agreements
attached hereto. The City shall fulfill the Utility's obligations
to furnish water and sewer services to those properties within the
Utility's certificated territories as shown by Exhibit "L".
6. CITY'S WARRANTIES.
(a) The City will, subsequent to Closing, and
consistent with prudent business practices, industry standards
applicable thereto, and the requirements of the appropriate govern-
mental agencies having jurisdiction over the assets and businesses
of said Utility System:
( 1) Provide water and wastewater services to all
properties, improvements thereon and the occupants thereof, locat-
ed within the Service Area after connection has been made.
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(2) From time to time, and at any time when request-
ed to do so by the Winter Springs Joint Venture, take all steps
and do all things necessary, proper or required to provide water
or wastewater service to all of the areas described in the Develop-
er Agreement referenced in Article 4 (g) hereof, subject to the
conditions of such section and such Developer Agreement.
(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 the City and
others.
(4) 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 wastewater collection system, and exfiltra-
tion from the water distribution system, in such manner as are
consistent with standard and recognized procedures for the opera-
tion of water and sewer systems in the State of Florida, to the
end that the capacities of the water plants and water and sewer
systems shall be available at all times to serve the present and
future connections thereto.
(5) Because of the City's obligation to provide
water and wastewater capacity to Gulfstream' s affiliate, the
Winter Springs Joint Venture, after Clos ing, and the City's
obligation to redeem the Bond Anticipation Notes referenced in
Article 4 hereof, the City shall continuously keep the system
properly insured against all perils, such that it may be promptly
replaced and the system continue in operation subsequent to any
potential or possible damage thereto.
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UTILITY'S WARRANTIES:
Utili ty represents and
warrants as follows:
(a) Utility is duly incorporated and authorized to
do business under the laws of the State of Florida, and its corpor-
ate status is in good standing.
(b) At Closing, the execution and performance of
this Agreement will have been duly authorized by Utility's Board
of Directors and its sole stockholder, the Good/Gulfstream Holding
Corp., a Delaware corporation.
(c) From and after the date of the execution of
this Agreement, Utility will not, without the prior written
consent of the City, dispose of or encumber any of the Purchased
Assets, with the exception of any transactions occurring in the
ordinary course of Utility's business.
(d) The Utility will permit full examination by
the 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 there will be no material depletion of the assets
of the Utility, nor any material change in the condition of said
assets, from and after the date of the execution hereof, and that
such 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
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the value of the same will not be diminished or depleted other
than by normal wear and tear.
(f) That it will continue to pursue and diligently
prosecute its application with the Florida Department of
Environmental Regulation to upgrade the operating permit for its
Sewer System to 2.0 million gallons per day.
(g) 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
personnel in the operation of the Utility.
(h) The information provided to the City by Utility
as provided for in the Exhibits hereto shall be true and correct
and shall not omit any material fact necessary to make the informa-
tion provided by Utility not misleading to the best of Utility's
knowledge and said Exhibits shall be incorporated herein by refer-
ence and made a part hereof.
(i) Utility is in sole and exclusive possession of
the Purchased Assets and Utility at Closing shall deliver sole and
exclusive possession of the Purchased Assets to City.
(j) Except for Permitted Encumbrances provided for
below and the requisite authorizations and consents of the appli-
cable governmental authorities with respect to the sale and trans-
fer of all licenses and permits to own and operate the Utility
Systems, Utility has good and marketable title to the purchased
Assets.
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(k) Except for the Permitted Encumbrances set forth
below, there are no liens, claims or encumbrances of whatever type
of 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 Seminole County or
with the Secretary of State.
(1) Utility shall perform all of the conditions to
Closing which should be performed by Utility prior to Closing as
provided herein.
(m) Utility has not been notified of the existence
of any violation of any governmental rules, regulations, permit-
ting conditions, or other governmental requirements of any type or
nature applicable to the ownership, maintenance, construction or
operation of the Utility System, nor of any conditions which by
reason of the passing of time or the giving of notice would consti-
tute such a violation.
(n) Subject to the execution of this Agreement and
prior to Closing, any and all connection charges or developer
contributions made in order to induce Utility to provide service
to such developer or third parties, shall be segregated into a
separate and distinct escrow account and all of the proceeds there-
of shall be delivered to the City at Closing.
(0) There exists no emploYment contract under which
Utili ty is the employer which cannot be canceled within thirty
(30) days notice or less, and without the paYment of any considera-
tion of such cancellation.
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(p) During the period of time between the date of
this Agreement and the Closing Date, Utility shall maintain
adequate fire and extended coverage insurance to cover the cost of
any repairs to the plants and Utility Systems that may be necessi-
tated by casualty damage, and the risk of loss during the said
period of time shall fall upon the Utility. From and after the
date of Closing, the City shall maintain such adequate fire and
extended coverage insurance as to insure Utility that the City
will be in a position to fulfill its obligations to repair and
maintain the Utility System, as such obligations are contained
within this Agreement. The risk of loss shall pass to the City at
Closing.
(q) After the execution of this Agreement, Utility
will not, without the prior written consent of the City, which
will not be unreasonably withheld, enter into new Developer Agree-
ments.
8. GULFSTREAM'S WARRANTIES:
warrants as follows:
(a) Gulfstream is duly incorporated under the laws
of the State of Delaware and authorized to do business under the
laws of the State of Florida and its corporate status is in good
standing.
Gulfstream represents and
(b) At Closing, the execution and performance of
this Agreement will have been duly authorized by Gulfstream' s
Board of Directors.
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(c) From and after the date of the execution of
this Agreement, Gulfstream will not, without the prior consent of
the City, take any action or do anything which would encumber or
otherwise impair the estate to be received by the City from Gulf-
stream relative to the effluent Sprayfield referenced in Exhibit
"W" hereof.
(d) Gulfstream will permit full examination by the
City's authorized representatives of the Sprayfields including the
taking of soil borings, the examination of existing records and
reports prepared by Gulfstream or on Gulfstream's behalf relative
to said Sprayfields, its physical status, assets, rights-of-way,
easements, and other physical properties and conditions. More-
over, Gulfstream warrants and represents that there will be no
material change in the operation of the Sprayfield from and after
the date of the execution hereof, and that such Sprayfield shall
be properly maintained within the custom and usage of the industry
up until the date of Closing.
(e) The information provided to the City by Gulf-
stream as provided for herein relative to such Sprayfields shall
be true and correct and shall not omit any material fact necessary
to make the information provided by Gulfstream not misleading to
the best of Gulfstream's knowledge and Exhibit "W" shall be
incorporated herein by reference and made a part hereof.
(f) Other than the existing lease between the
Utility and Gulfstream regarding said Sprayfields, Gulfstream is
in the sole and exclusive possession of the Sprayfields and
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Gulfstream shall at Closing deliver sole and exclusive possession
of the Sprayfields to the City and will warrant and defend City's
quiet enjoyment thereof thereafter.
9. PERMITTED ENCUMBRANCES
(Title Insurance. Easements. Etc.)
(a) The title insurance commitments shall commit
the insurer to issue owner's title insurance policies to the City
covering the real estate portion of the Purchased Assets and the
Sprayfield described in Exhibit "W" (substantially in accordance
with the ALTA Standard Owner's Form B) upon the recording of deeds
to the property, said commitments reflecting Utility's or Gulf-
stream's title, as appropriate, to the real estate to be market-
able 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 or Gulfstream's title, as appro-
priate, to the real estate unmarketable, and the City shall not
have the right to refuse to close by reason thereof, and the
purchase price for the Purchased Assets shall not in any respect
be reduced by reason hereof. The City shall notify Utility or
Gulfstream, as appropriate, in writing no later than 20 days after
receipt of said title insurance commitments of any alleged defect
in Utility's title to the real estate (other than those excepted
herein and the Permitted Encumbrances), such written notice to
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"include all exceptions, encumbrances, liens, easements, covenants,
restrictions or other defects in Utility's or Gulfstream's title
to the real estate (other than the Permitted Encumbrances) which,
in the opinion of the City's counsel, render or may render Util-
ity's or Gulfstream's title to the real estate unmarketable or
uninsurable. Any objections to title to the extent not shown on
the notice furnished by the City in accordance with the provisions
of this paragraph shall be deemed to have been waived by the City
for all purposes hereof and the City shall not be entitled to any
damages or other remedies. Utility or Gulfstream, as appropriate,
shall be entitled to 30 days time to eliminate any of the objec-
tions to title as set forth in the City's notice that Utility or
Gulfstream choose to eliminate. Except as provided in Article 10
hereof , Utility or Gulfstream, as appropriate, is not, however,
under any obligation to remove any objection to title, and is not
under any obligation to bring any action or proceeding in order to
make title to the real estate marketable. In the event Utility or
Gulfstream shall be unable to deliver title as herein required,
then the City shall have only the following rights: (a) to accept
whatever title Utility or Gulfstream is able to convey without any
abatement of the purchase price, or (b) to reject title. The City
shall not be entitled to any other rights or remedies. If the
City shall reasonably reject title under (b), neither party shall
have any further liability whatsoever hereunder, and in this event
Utility or Gulfstream, as appropriate, shall pay all costs of the
title insurance commitments. The City shall not object to title
by reason of the existence of any mortgage, lien, encumbrance,
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'covenant, restriction or other matter, provided (a) the same may
be satisfied with the paYment of money and Utility or Gulfstream,
as appropriate, at their option, elect to do so by paying same at
or prior to closing; or (b) any mechanic's lien or other encum-
brance 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, and the Closing shall be conditioned upon
such that mechanics liens or other encumbrances being released of
record, bonded, or transfer of record to substitute security by
Utility or Gulfstream, as appropriate; or (c) the title insurance
company issuing the title insurance commitments referred to above
is willing to affirmatively insure against such matter and is
willing to insure against the enforcement thereof against the real
estate.
(c) As used above, "Permitted Encumbrances" 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 as
represented herein.
(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
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as may be set forth in any "Murphy Deeds" 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.
10. CONDITIONS PRECEDENT TO CLOSING. The obligations of
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 legal action or proceeding which would
prevent the acquisition of the Purchased Assets or hinder the abil-
ity of the City to close the transaction or pay the purchase
price, or inhibit or restrict in any manner its use, title, or
enjoYment of the Purchased Assets.
It is recognized between the parties hereto that
TOPEKA GROUP INCORPORATED ("Topeka") has claimed an interest in
the subject matter of Seminole Circuit Court Case No. 89-3l44-CA-
OS-P and sought intervention status in such action. Utility and
Gulfstream have warranted that Topeka f s interest, if any, is
essentially limited to that of a stockholder in the Utility's
parent, Good/Gulfstream Holding Corp. and that of the holder .of an
option to acquire the stock of the Utility. Should Topeka assert
any claim which, in the opinion of the counsel and special counsel
for the City, might inhibit or restrict in any manner City's use,
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-title or quiet enjoyment of the Purchased Assets then Utility, or
its designee, shall, (i) file good and sufficient surety bond so
as to remove, cure, bond over, or defend City's title and quiet
enjoyment of the Purchased Assets; or, at the election of the City
or Utility, (ii) agree to escrow the net proceeds described in
Article 4(a) hereof, including interest earnings thereon, until
such time as any claim by Topeka against the City or the Purchased
Assets have been resolved and a release in form and substance
satisfactory to City's counsel and special counsel has been
obtained from Topeka therefor. It is agreed by the parties that
the interpretation of the term "net proceeds", as described in the
sentence immediately above, shall be defined as the amount of the
proceeds left in the hands of the Utility after the completion of
the marketing of the BAN's as described in Article 4 hereof.
(c) The Board of Directors and Stockholder of Util-
ity and the Board of Directors of the Good/Gulfstream Holding
Corp., a Delaware corporation, and Gulfstream, shall have ratified
and approved the execution of this Agreement and authorized the
sale of the Purchased Assets and certified copies of the resolu-
tions evidencing such ratifications and approval have been deliv-
ered to the City.
(d) The City Council of the City shall have rati-
fied and approved the execution of this Agreement and authorized
the acquisition of the Purchased Assets and certified copies of
the Resolutions evidencing such ratifications and approval have
been delivered to the Utility.
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(e)
Utili ty contained
Exhibit C.
The City assumes in writing the obligations of
in all Developer's Agreements described in
(f) The parties shall each have performed all the
undertakings required to be performed by them under the terms
hereof prior to or at Closing.
(g) All warranties and representations herein of
both parties shall be true as of the Closing Date.
11. CLOSING DATE AND CLOSING.
(a) Provided the conditions to be performed prior
to Closing have been performed, this transaction shall be closed
on or before December 31, 1989, unless extended by mutual agree-
ment 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 and all documentary stamps on the
effluent Sprayfields shall be paid by Gulfstream.
(2) Taxes on the Purchased Assets and the effluent
Sprayfields shall be prorated as of the Closing Date.
(3) Accounts receivable due Utility for unpaid
water and sewer service as of the date of Closing belong to Util-
ity. Utility shall furnish to City at Closing a listing of its
accounts receivable, by customer and individual amounts. No
receivables owed to Utility on account of water and sewer service
more than sixty (60) days in arrears shall be included on such
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-list. and City shall not be required to pay for such delinquent
accounts. City will acquire such receivables to be collected in
the ordinary course of business, at a discount of 5% of the total
value of such accounts receivable. Credit shall be given to the
City for the liabilities assumed for customer deposits and same
shall be off-set against the purchase of the accounts receivable
by the City. A listing of the customer deposits by individuals
and aggregate totals of same shall be furnished by the Utility to
the City at Closing. Should the total of accounts receivable be
greater than the total of customer deposits, then at Closing the
City shall pay the difference to the Utility. Should the total of
customer deposits be greater than the total of accounts receiv-
able, then at Closing the Utility shall credit the City with the
difference.
The parties recognize that the Closing may be estab-
lished during the normal billing cycle of the Utility. Gross
revenues from water and sewer services shall be estimated based
upon the preceding month's billings and a proration of such
revenue shall be made with the City making payment to the Utility
for the number of days 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 obli-
gation of the Utility. All taxes and assessments imposed or
attempted to be imposed after the date of Closing shall be the
obligation of the City.
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~ (5) Sums held or collected by Utility for Connec-
tion Charges imposed for service prior to the date hereof shall
remain the Utility's sole and separate property with no claim of
the City therefor. Sums held or collected by Utility for Connec-
tion Charges subsequent to the date of the execution hereof shall
become the sole and separate property of the City and shall be
turned over to the City at Closing, as provided in Article 7(n)
hereof.
(6) All transfers required or necessary hereunder
shall take place, unless extended by mutual consent.
(7) Each party shall be responsible for its own
respective closing costs.
(8) Subject to the provisions of Article 4 herein-
above, 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, prepar-
ation and execution of this Agreement and any documents associated
with the Closing of the sale and purchase transaction contemplated
herein.
(9) All bills for services rendered in connection
with the operation of the Utility System prior to Closing shall
be paid by Utility.
(10) All prorations required pursuant to the provi-
sions of Exhibit "V" hereof shall be made and agreed upon by the
parties hereto.
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. 12. FLORIDA PUBLIC SERVICE COMMISSION MATTERS. Utility
shall be responsible for providing to the City such information
and monies as may be necessary for terminating its relationship
with the Florida Public Service Commission, including filing of
any reports, if required, satisfaction of its outstanding Florida
gross receipts tax obligation through the date of Closing, and
securing cancellation of the certificates heretofore issued by
said Commission to the Utility. Copies of the Order(s) of the
Commission acknowledging sale of the Utility System to the City
shall be promptly provided to the Utility, upon City's receipt
the reo f .
13. 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 Utility and Gulfstream, shall be
conveyed free and clear of all liens, claims and encumbrances,
except for "permitted encumbrances" as described in Article 9. At
Closing Utility and Gulfstream shall deliver to the City title
insurance binders covering the real property as described in Exhi-
bits "E" and "W" from a reputable title insurance company, showing
the title to be free and clear of all liens and encumbrances
except for matters appearing on the survey and the permitted encum-
brances. Utility and Gulfstream will execute at or prior to
Closing in favor of a reputable title insurance company acceptable
by the City a mechanics lien affidavit and "Gap" Affidavits
sufficient to allow such title insurance company to delete all
standard exceptions other than matters appearing on the survey.
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~itle to the real property portion of the Purchased Assets and the
Sprayfields will be conveyed to the City at Closing by warranty
deed, and the personal property portion of the Purchased Assets
will be conveyed by Bill of Sale accompanied by a No:-Lien
Affidavit executed by appropriate officers of the Utility.
After
closing instruments have been recorded in the public records,
Utility and Gulfstream shall provide title insurance policies
issued on the binders.
The total amount of the title insurance
covering said real estate portion of the Purchased Assets shall be
equal to the value of
The total amount of the title
insurance issued on the binder covering the effluent Sprayfields
shall be equal to the value of $
14. OTHER MISCELLANEOUS PROVISIONS.
(a) The parties hereto recognize and agree that
time is of the essence in this agreement.
(b) Prior to or simultaneously with the Closing
hereof, each party will deliver to the other its opinion of coun-
sel that it has the full legal authority to enter into this agree-
ment.
(c) 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,
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~hal} be governed and construed according to the laws of the State
of Florida. This Agreement may be executed in each of several
copies, each of which shall be considered an original.
(d) Each party will, at any time and from time to
time after the Closing Date, upon request of the other party,
execute, acknowledge and deliver, or will cause to be executed,
acknowledged and delivered, all such further acts, deeds, assign-
ments, transfers, powers of attorney and assurances as may be
required in order to implement and perform any of the obligations,
covenants and agreements of the parties herein.
(e) In no event, however, shall the provisions of
subsection lid II above 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, except as regards City's
acquisition of the effluent Sprayfields referenced above from
Gulfstream.
(f) Neither City, Utility, nor Gulfstream may trans-
fer or assign this Agreement or the respective duties or obliga-
tions hereunder without obtaining the prior written consent of the
other. The City hereby consents to the assignment of this Agree-
ment by the Utility to its stockholders in liquidation of the
Utility or to its parent corporation.
(g) The City, Utility and Gulfstream represent and
warrant each to the other that they have not dealt with either a
broker, salesman, or finder in connection with any part of the
transaction contemplated by this Agreement, and, in so far as they
know, no broker, salesman or other person is entitled to any
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~ommk~sion or fee with respect to such transaction. Further, each
party shall indemnify the others against any claim or loss
incurred or suf fered as a result of any broker's or salesman's
commission or finders fee alleged to be payable because of any
statements, act or omissions of the indemnifying party.
(h) Any notice or other document to be given here-
under by any party to the other shall be in writing and shall be
delivered personally or sent by certified mail, postage prepaid,
or by facsimile transmission.
If to Utility, such notice shall be addressed to Utility at:
SEMINOLE UTILITY COMPANY
c/o Good/Gulfstream Holding Corp.
8751 West Broward Boulevard
Plantation, Florida 33324
Attention: WILLIAM I. LIVINGSTON, ESQUIRE
if to Gulfstream, such notice shall be addressed to Gulfstream at:
GULFSTREAM HOUSING CORP.
8751 West Broward Boulevard
Plantation, Florida 33324
Attention: WILLIAM I. LIVINGSTON, ESQUIRE
with a copy to counsel for Utility and Gulfstream:
Broad & Cassell
Maitland Center
1051 Winder ley Place
Maitland, Florida 32751
Attention: C. KEN BISHOP, ESQUIRE
If to the City, such notice shall be addressed to the City at:
CITY OF WINTER SPRINGS, FLORIDA
1126 East S. R. 434
Winter Springs, FL 32708
Attention: RICHARD ROZANSKY, City Manager
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with a copy to the City's counsel:
"II I J .-
Parker, Johnson, Owen, McGuire, Mishaud,
Lang & Kruppenbacher
201 South Orange Avenue
Barnett Bank Building/13th Floor
Orlando, Florida 32801
Attention: FRANK C. KRUPPENBACHER, ESQUIRE
with a copy to City'S Special Counsel:
Rose, Sundstrom & Bentley
2548 Blairstone Pines Drive
Tallahassee, Florida 32301
Attention: WILLIAM E. SUNDSTROM, P.A., ESQUIRE
and the terms "Utility" and "Gulfstream" as used above are deemed
to include the successors and assigns of Utility and Gulfstream.
(i) All salaries of employees to the Closing Date
and all obligations of Utility as of the Closing Date to said
employees for accrued vacation payor severance or for sick term
benefits pay shall be paid by Utility.
(j) This agreement may be varied, modi f ied or
altered only by written instrument signed by both parties.
(k) All representations and warranties heretofore
made by either party to the other are merged into this Agreement.
(I) The headings used are for convenience only,
and the parties herein agree that they shall be disregarded in the
construction of this Agreement.
(m) There are no actions, suits, or proceedings
pending, to Utility or Gulfstream' s knowledge, or affecting the
Purchased Assets, at law or in equity, before any federal, state,
county, municipal or government court, department, commis s ion,
board, bureau, agency or instrumentality which involves the
possibility of any judgment, assessment or liability which would
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.,af,fec..t the title of the City or would be a lien on any of the
Purchased Assets, the Sprayfields, or the revenues generated by
the Utility System or would materially adversely affect the City's
use of the Purchased Assets. It is agreed that this subsection
"m II may be satisfied by Utility or Gulfstream' s posting of an
appropriate bond, suretyship contract or other acceptable guaran-
tee to the City to cure or relieve any such lien or encumbrance
that might be created prior to or after the date of Closing for
any of the causes mentioned herein.
(n) 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. Such right of specific performance shall not,
however, be the sole or exclusive remedy of each party against the
other, and each party hereby preserves its rights to seek damages,
due to the failure of the other to close this Agreement.
(0) It is agreed by and between the parties hereto
that all words, terms, and conditions herein contained are to be
read in concert, each with the other, and that a prov is ion
contained under one heading may be considered to be equally appli-
cable under another heading in the interpretation of this Agree-
ment.
(p) The provisions of Article 3 relative to the
condition of purchased assets, all of the provisions of Article 4
hereof relative to consideration, purchase price, paYment, and the
Developer Agreement referenced therein, Article 6(a)(S) relative
to insurance, and the provisions of Article 14 (n) relative to
remedies, shall survive the closing hereof and not be merged there-
in.
41
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~
41
....1
.
-.
"
(g) Utility and Gulfstream will not require valida-
tion of the BAN's or Bonds described in Article 4 hereof.
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.
~1, "
~~
eresa Ferrarini, Asst. Secretary
By:
UTIa .,
ATTEST:
( SEAL)
~O- 1JM~'
Teresa Ferrarini, Asst .Secre tary
By:
Philip
ATTEST:
(SEAL)
ATTEST:
CITY OF WINTER SPRINGS,
M?!#~l6tty Clerk
(SEAL)
FINAL: 10/23/89