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HomeMy WebLinkAboutAgmt CC Utility Corp & City 1965y V AGREEMENT OF PURCHASE AND SALE THIS AGREEMENT, Made this day of 1965, between the CITY.OF CAPE CANAVERAL, FLORIDA, a municipal corporation, party of the first part, (hereinafter called!,, the "City"),. and CAPE CANAVDRAL UTILITY CORPORATION, a Florida corporation, darty. of -the second part (hereinafter called the "Company"): W I T N E S S E T H: WHEREAS, the Company owns and operates a sewagetreatment.and disposal plant and sewage collection system in the City of Cape Canaveral, Florida; and WHEREAS, all of the aforesaid facilities are within the municipal limits of the City; and WHEREAS, the acquisition of ,the said facilities by the City is deemed desirable for the health and welfare of the residents of the City; and WHEREAS, the City desires to purchase from the Company and the Company is willing to.sell to the City the aforesaid sewage system upon the terms and conditions hereinafter set forth. NOW, THEREFORE, -in consideration of the premises and of the covenants and agreements herein contained, the City and Company agree as•follows 1. At the time of the execution of this Agreement the Company has furnished to the City the following, all of which have been "Jexamined by representatives of the City and are acceptable to.the City: Exhibit "A." Plans and specifications showing the sewage treatment plant and .sewer system which has been co nstructed.substantially in accordance with'these.plans, or is now under construction, as evidenced by.the following described plans: i (1) Plans as prepared by Dayer Engineering, Inc. of,Miami, Floridla,. designated Project No. 1502, specifically described as follows: (a) File #1502-1 Sewage Treatment Plant Location Plan. dated November, 1962, only as pertains to force mains. (b) File #1502-4 Sewage Collection System Plan dated April, 1963. (c) File #1502-5 Sewage Collection System Profiles April,. 1963. (d) File #1502-6 Sewage Lift Station, November,'1962. (e) File #1502-7 Sewage Collection System Details April, 1963. (2) Plans as prepared by Dayer Engineering, Inc. of Miami. Florida, designated Project 1504 specifically described as follows: (a)' File #61504-10 Sewage Cdllection System Plan dated September, 1963. (b) File #1504-4 Sewage Collection System Profiles dated July, 1963. (c) File #1504-5 Sewage Collection System Detail dated July, 1963. (d) File #1504-6 only as it refers to Sewage Lift Station No. 2 - dated October, 1962". (e) File #1504-7 Sewage Lift Station No. 1 dated July, 1963. (3) Plans as prepared by Brevard Engineering Company of' -Cape Canaveral, Florida, entitled Cape Canaveral'Central Phase 2 designated Job No. 6254-D-16 specifically described as follows:. (a) Shaded portions of cover sheet dated-November'19,, 1964 and Sheets 1 - 10, dated August, 1964 and revised November, 1964. (4) Plans as prepared by. Briley -Wild & Associates of Daytona;Beach, Florida, entitled Pollution Control Facility designated Project -2- No. 6308-2 specifically described as follows: (a) Sheets 1 - 7, dated May, 1964. (Does not.inelude any outfall line). The foregoing plans are hereto attached, initialed'by the parties and made a part of this Agreement. Exhibit "B." A description of all of the real estate, owned or used by the Company in connection with the operation of its sewer system, and which is to be conveyed to the City, in fee simple. 2. For convenience, the term "Purchased Assets" shall be used to designate the assets, business properties and rights to be purchased by the City hereunder and shall consist of the property enumerated in Paragraph 1 of this Agreement,.including but not limited to the sewage treatment and disposal plant, sewage collection and disposal facil'ities, gravity sewers, pump station and force mains,•excepting, however, the temporary treatment plant and the real property upon which lift stations in Canaveral Beach Gardens and at the temporary treatment plant site.are located. "Purchased Assets" shall include, however, the aforesaid two (2) lift stations, although the land upon which same are located is not purchased. The City shall be obligated to remove said two_..(2) lift stations at such time as same are disconnected from the syste-. and the City at such time shall also fill the property from which same are removed. "Purchased Assets" shall also include all easements and rights -of -ways owned by the Company for the constrdotion, operation and. maintenance of its sewer systems, which easements;; rights -of -ways are generally shown by the plans identified in Exhibit "A." "Purchased A6sets" shall also include the sewage treatment plant and disposal facilities, collection l nes;,_,pumping stations,'ser- vice connections, and all other physical facilities and property in stallations used in connection with sewage collection, treatment and disposal. -3- "Purchased Assets" shall include all customer records, books,. prints,` plans, engineering reports, surveys, plats and other information in possession -of the Company at the time of closing pertaining to the operation of the sewer system and all customers' security deposits, names of such. customers and description of security deposits.' "Purchased Assets shall include all of the right title.apd interest of the Company in and to that certain Sewer System Non -Exclusive Franchise. granted by the City of Cape Canaveral, on November 27, 1962 to'Shuford Mills, Inc., Hickory Spinners, Inc., and Gables -By -The -Sea, Inc. The "Purchased Assets" shall not include that certain service agreement by and.. between Southern Gulf Utilities, Inc., Cape Canaveral Utility Corporation, Shuford Mills, Inc., Gables -By -The -Sea, Inc., dated January 31, 1963, and recorded in Official Records Book 569, Page 78, Public Recorda.of Brevard County, -Florida. Evidence of cancellation Of said service agreement will be presented at.the closing. It is understood that the work specified in the plana prepared by Brevard Engineering Company,.Cape Canaveral Central, Phase 2, dated August, 1964, revised•Novemaber, 1964, Job No. 6254-D-16, .is presently undr. er . construction. if at the date of closing said construction has not been completed, that the City will nevertheless close the transaction upon the Company and Shuford Mills, Inc., executing an indemnity agreement to the City guaranteeing completion of the work in accordance with said plans within six months from date of closing, excepting that the work necessary for placing the permanent' treatment plant in operation shall be completed within ninety (90) days From date of closing. If the work is delayed at any...t.ime in'the progress of the work by any act or neglect of-the.City, or by changes ordered in the work by the City, or by labor disputes, fire, weather which prevents work, or other. unavoidable casualties, or any causes beyond control of the guarantors,, then the time of completion shall be axtended for such 'period of delay. -4- 3. The City agrees that in the event the permanent treatment' plant is not placed in service within ninety (90) days from 1he date of closing of this transaction., that it will pay to the Company, on a month to month basis, a monthly rental of Three Hundred and Fifty Dollars, ($350.00) for the use of the.temporary treatment plant that is not being; sold and transferred to the City, which sum shall include land rental. • The City shall not be liable for such payments to the Company so long as the City is not delinquent in the completion of the permanent sewage treatment plant and the delay, if any, is occasioned by labor disputes, fire, weather, which prevents work, or other unavoidable casualties or any causes beyond the control of the City. 3(a). The Company hereby represents and warrants to and agrees with the City that'.it is the lawful owner of the "Purchased Assets". and may lawfully sell and convey same to the City, and that it warrants* the title to such "Purchased Assets" and will defend the same unto the City against the lawful claims of all persons whomsoever. 4. The Company will deliver abstracts of title, brought to date, or a title insurance binder showing it'has good and marketable title to', all real estate to be conveyed and owns outright all improvements to-. cated thereon and owns outright all other "Purchased Assets." The City shall have twenty (20) days.from receipt to examine the abstracts of title or title insurance binder and specify in writing its objections, if any, to Company's title. 'If objections to title are specified, Company shall -have one hundred.'twenty (120) days to cure such objections.which it. agrees to do and if -at the end of said period Company.has been unable.to cure such objections, the City may either elect to accept title in its existing condition or to terminate this Agreement, in which both parties will be relieved from all further obligations hereunder. The City agrees that the foregoing requirements of title will be satisfied by a title binder snooing no exceptions other than the,usual exceptions set forth in any title binder covering sale of a private -5- sanitary sewerage 'system to a municipality currently used in Brevard County and those exceptions caused by the agreement.of the -parties herein. S. It is understood and agreed that the transition of the system from the possession of Company to the possession of the City shall be handled in the following manner: (a) The Company shall bill and collect its charges for. sanitary sewerage up to date of closing. (b) The Company shall not bill nor collect any charges for any of the said accounts for any period after closing. (c) On or before.date of closing, the Company shall make and deliver to the City a full, complete and correct list of all its sewerage accounts showing the name of the customer, the'address , of the customer, and the amount and nature of any and all security deposits in its possession. (d) The Company shall, on date of closing, transfer, set over, assign and pay over to the City (to be held by it to the credit of the customers) all'customer deposits of any kind and character in connection with all active accounts in the Company's possession, custody or control by paying over to the City a sum of money equal to the total of such deposits. (e) During a'ninety day period from and after the date of closing, the City upon request of the Company shall, if permitted to do so by law or contract, cause the discontinuance of water service to any customer whose sewerage charges for any period prior to date of closing shall be due, unpaid and delinquent. The Company shall, prior to making such request of the City, give the delinquent customer written notice that service will be terminated if the delinquent charges are not paid. If such account is not paid, the City upon request of the Company, shall give written notice to the delinquent customer, and If such charges are then not paid, the City shall aid in the collection of said amount. These actions shall not. in any way be d©emed to interfere with the Company's legal right of action to collect the delinquent account. 6.. On the terms and subject to the conditions set forth in this Agreement, the Company hereby sells and agrees to sell,•convey, as- sign, transfer and deliver to the City, and the City purchases and agrees to acquire and accept as hereinafter provided at the time of closing, the "Purchased Assets" and the City agrees to pay for same the sum of $365,000.00 in cash at closing. 7. At the time of closing the parties covenant and agree: (a) The Company shall turn -over to the City all records and all drawings, including as -built drawings of the sewer system; maintained and used by it in connection with -the operation of the sewer system. (b) All the sums due and payable to the Company by Owners or Developers as contributions in aid -of -construction for connections made or assessed prior to closing or otherwise for exten- sions made to the properties of such Owners or Developers: prior to the execution of this Agreement are not included in the "Purchased Assets" and all ouch sums due and payable to the Company shall belong to and remain the property of the Company. The City shall not connect or'allow to be connected to the sewer system, or provide or allow to be provided any sewer'service to any delinquent property if any amount due and payable to the Company for making any extension or extension3 to such property has not been paid. S. Provided the conditions to be performed prior to closing have been performed, then this transaction shall be closed within twenty (20) days after the revenue certificates in Chancery No. 30516 have been validated and delivered to purchaser& of such revenue. -7- certificates. If such validation and sale of revenue certificates have not been accomplished on or before six (6) months. from date of' this agreement, the Company, at its option, may terminate this agree- ment or extend the time within which such validation and sale may be gccomplished. 9. The Company covenants and agrees that it shall do and perform or cause to be done and performed all acts to be done by the vendor under the bulk sales laws of this State, including Chapter 726, Florida Statute&, and will supply the City with releases of lien by all materialmen and contractors engaged in construction.or future construction of the sewerage system sold to the City. 10. On or before the date upon which this transaction is to be closed, the Company shall furnish to the City, in addition to other provisions set forth herein, the following-: (a), The original or a duly certified copy of a resolution duly and regularly adopted by the Directors of the Company approving,. - authorizing, confirming and ratifying this agreement and authorizing the President and the Secretary of the Company to do all things necessary to carry out this agreement. (b) The original or a duly certified copy of its corporate tax receipts showing payment of its capital stock taxes through the year 1964. (c) Bills of Sale, Deeds, Assignments and such other instruments of transfer and documents as may be necessary or appro- priats to the sale and delivery of the•property described heroin, subject to exceptions heretofore enumerated. (d) Executed copy of Acsignment of non-exclusive franchise referred to in paragraph 2, above, by Hickory Spinners, Inc., Shuford Mills, Inc., :and Gables -By -the -Sea, Inc.., assignors, -8- to the Company, assignee, dated November 27, 19620 11. The sanitary sewer system, and each component part thereof, shall be conveyed, sold, bargained, transferred, assigned, and set over by the Company to the City at the time of closing by good and sufficient full Warranty Deed and Bill of Sale in which the Company shall covenant, subject to the exceptions herein preVioualy enumerated, that the Company is the owner of the sanitary sewer system, and that said system.is free and clear of all encumbrances*!.. that the Company has full power, lawful right and authority to sell:. and convey said system to the City, and that the Company fully warrants the right, title and interest of the City in said system and will defend the same against the lawful claims of all persons. whomsoever. 12. All excise taxes, including documentary stamps, upon this transaction and all recording fees in connection'therewith shall. be paid by the Company. 13. The obligation for'the payment of the purchase price to be made under this agreement shall not be deemed to constitute a pledge of the full faith and credit of the City, and the obligation. of this contract assumed by the City shall not directly nor indirectly obligate the City to levy or pledge any form of taxation whatsoever therefor, and the holder of this obligation shall have no recourse.to the power of taxation.. 14. This agreement shall not be assignable by.either.party. 15. 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. if to the Company, such, -notice shall be addressed to the Company, attention of Mr. Harry Davison, 20215 Northwest Second Avenue, Miami, Florida= if to the City, care of Honorable Mayor and City Council.. City Hall,'7410 North Atlantic Avenue, Cape Canaveral, Florida►. -9- 16. All covenants, agreements, representations and warranties made herein,. by either party, shall survive the closing, unless other wise specifically provided. 17. (a) Thet Company agrees that'it will at any time and from time to time after the closing, upon request of the City, do, execute, acknowledge and deliver or will cause to be done,. exeeuted,,,acknowledged and delivered,.all such further acts, deeds, assignments, transfers,. powers of attorney and assurances as may reasonably be required for better confirming to the City the title or possession of any or all of -the "Purchased Assets." (b) The City agrees that it will at any time and from e time to time after the closing date, upon request of the -Company, do, execute, acknowledge and deliver or will cause to be done, executed, acknowledged'and delivered all such further acts, deeds, assignments, transfers, powers of attorney and assurances as may reasonably be re- quired for implementing and performing by the City any of the obliga tions, covenants.and agreements of the City in the collection of Contributions Receivable and customer accounts receivable not included in the "Purchased Assets.." 18. The City agrees that it will cause all the "Purchased Assets" being purchased pursuant to this Agreement to be inspected.by its.agents and will notify the Company on or before 5 p.m. on Monday, March 22, 1965, in writing, by deposit in the U. S. Mail, postage prepaid, that it accepts all the "Purchased Assets" in their then existing condition. or a list of exceptions it takes to the condition of the "Purchased Assets." In the event the City accepts the "Purchased Assets" or does not give either of the above notices in writing it thereby accepts all the "Purchased Assets" in their then condition and will proceed and'. close the transaction subject to the terms of this Agreement. In the event.the City renders a list of exceptions to the condition of the . "Purchased Assets," the Company shall have the option of correcting the exceptions by.repair or abating the price to the satisfaction of,the City or rescinding their''Agreecrent. The Company shall notify the -City of its election within fourteen days after March 22, 1965.. -10- IN WITNESS 1,a]EREOF, the parties have hereunto caused this agreement to be executed the day and year first above written by its duly authorized officers and officials. Signed, Sealed and deiivered in CITY OF CAPE CANAVERAL, FLORIDA the presence of: Mayor ATTEST: le As o ity City,,dier "City" CAPE CANAVERAL UTILITY CORPORATION BY H. H. Simms, Jr., Pr ident ..�•,�,. fij/, •���r��I� — ATTEST: As to Company ' William Fuller, Asst. Secretary "Company" (1) Lift Station on bWerial Boulevard at West boundary of Chrysler Building parking lot. (2) Lift Station sites A and B as shown on plans prepar4d by Brevard Mgineering, Ince, entitled Cape Canaveral Central Phase 2, designated Job No. 6234-D16, dated August 1964, and revised November 1966 r SEWER PLANT SITE 9 A tract of land to Section 15, Township 24'South, Range 37 East, . Ilrovard County, Florida, boing more particularly described es follows: Commence at the: ;:outhcact cornor of said Section 15; thence run N89027' 20"%V -along the 'Jouth lino, of maid Section 15 a distance of 2819.89 feet; thenco N 0032'40"E a distance of 100.00 fact to ' -the Point of Boginnin4; thence N 89027`20"W and parallel to the said South lino of Scdtlon 15 a distance of 326.70 feet; thence • N 00321401E a distance of U0.00 foot; thence S 39027120"E a distance of 326.70 feet; theuco S 0032'40"W a distance of 400.00 foot and containing 130, 680 square fact. • BREVARD ENGINEERING COMPANY �. 8660 Astronaut Boulevard Cape Canaveral, Florida Sr�9•�7 10 •x� . , !X i j A V / I • i ,