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HomeMy WebLinkAboutCity of Tamarac Resolution R-86-3777 Introduced by:_... Temp. Reso. #A32A I � 1 2 3 4 4• 7 8 9 10 11 12 13 14 15 16 IiB 19 20 21 22 23 24 25 :6 27 28 29 J i 32 33 34 35 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R--86- 377 A RESOLUTION ESTABLISHING HOURLY DEPARTMENTAL CHARGES FOR SERVICES PROVIDED BY TAMARAC UTILITY WEST FOR TAMARAC UTILITY EAST; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 27-1 of the Code of Ordinances provides that TUW and TUE maintain separate rates and charges; and WHEREAS, the City Council of the City of Tamarac has reviewed a Rate Schedule proposed by the City Manager and Utilities Director. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDA: As the following Rate Schedule is determined to represent the actual cost of labor and equipment plus reasonable administrative costs and is hereby adopted to maintain separate rates and charges for TUW and TUE provided in Section 27-1 of the Code of Ordinances, the following inter -department back charge rates will be charged to TUE for work performed by TUW: A. Jet Rodder - Includes Jet Rodder Operator Regular 39.51 and Video Operator Overtime 53.52 Video & Sealing - Includes Video Technician Regular 46.00 and Video Operator Overtime 60.01 Backhoe - Machine 23.00 Machine with Operator Regular 37.01 Machine with Operator Overtime 44.01 B. SERVICE MANZTEUgK One-man crew Regular 18.73 Overtime 25.74 Two-man'crew Regular 32.74 Overtime 46.75 Three-man crew Regular 46.75 Overtime 63.05 Foreman/Truck Regular 22.00 Overtime 37.00 r 1 2 3 41 r. 7 8 9 10 11 12 13 14 15 16 118 19 20 21 22 23 24 25 :6 27 28 29 �4L 32 33 34 35 SECTION 2: This Resolution shall become effective immedi- ately upon its passage. PASSED, ADOPTED AND APPROVED this day of , 1986. ERN D HAT MAYOR ATTEST - CITY CLERK I HEREBY CERTIFY that I have approved the form and correct- ness of this RESOLUTION. A-. YANT `AWL GATE I Y ATTOR" Y 100-86-10/rms MAYOR: HART DIST. 1: C/W MASSARO .. DIST. 2: V/M STELZER DIST. 3: C/M GOTTE SCE AN DIST. 4: C/M STE;11 ___ -2- CERTIFICATE OF SECRETARY I, WALTER S. ROGOWSKI, do hereby certify that I am the duly elected and qualified Secretary of The Marmon Group, Inc., a corporation organized and existing under the laws of the State of Delaware, and that on July 30, 1979, the following resolutions were adopted by the Board of Directors of said corporation, and said resolutions are now in full force and effect: RESOLVED, That the wholly -owned subsidiary of this corporation, Tamarac Utilities, Inc., a Florida corporation (hereinafter referred to as "TUI") shall enter into an Agreement of Purchase and Sale by and between TUI and the City of Tamarac, Florida, a municipal corporation organized and existing under the laws of the State of Florida (hereinafter referred to as the "Agreement"), in substantial form as attached hereto; and FURTHER RESOLVED, That Robert C. Gluth, Director and Executive Vice President of this corporation, acting singly, be and he hereby is, authorized and directed to execute such documents, obtain such approvals and take such other action as he, in his sole discretion, deems necessary or desirable in order to effectuate the transaction contemplated by the foregoing resolution, the taking of such action and the execution of such documents to constitute conclusive evidence of its approval thereof; and FURTHER RESOLVED, That the consideration for the sale of TUI shall be $15,660,000.00, of which sum $4,660,000.00 shall be from the developers (as such term is defined in the Agreement) in the form of notes payable over five (5) years, which sum is for the purchase of capacity for individual developers; and $11,000,000.00 from the City of Tamarac to obtain which said City shall authorize its water and sewer revenue bonds and shall issue, in anticipation of the proceeds of said bonds, its bond anticipation notes (hereinafter referred to as "bans") which upon approval by referendum said notes are to be exchanged for cash or bonds; and FURTHER RESOLVED, That because this corporation is required to give a stand-by commitment for the purchase of said bans in the event the City of Tamarac is unable to sell said bans elsewhere, which commitment may be given by Robert C. Gluth, acting singly, all of the consideration to be given for said Agreement as stated above shall be payable to bearer or to this corporation; and FURTHER RESOLVED, That from the proceeds of the $11,000,000.00 an amount not to exceed $4,000,000.00 shall be applied in accordance with Section 6 of said Agreement. IN WITNESS WHEREOF, I have executed my hand and the seal of the corporation this 30th day of July, 1979. (SEAL) CERTIFICATE OF SECRETARY I, WALTER S. ROGOWSKI, do hereby certify that I am the duly elected and qualified Secretary of Tamarac Utilities, Inc., a corporation organized and existing under the laws of the State of Florida, and that on July 30, 1979, the following resolutions were duly adopted by the corporation by unanimous written consent and are now in full force and effect: RESOLVED, That this corporation enter into an Agreement of Purchase and Sale for the sale of its assets, subject to liabilities, with the City of Tamarac, Florida, in substantial form as attached hereto; and FURTHER RESOLVED, That pursuant to the above Agreement, because the parent of this corporation, The Marmon Group, Inc. is required to give a stand-by commitment for the purchase of bond anticipation notes in the amount of $11,000,000.00 in the event the City of Tamarac is unable to sell said bond anticipation notes elsewhere, said parent corporation shall be entitled to the proceeds of said sale (as provided in the Agreement); and FURTHER RESOLVED, That Robert C. Gluth, Director, Vice President and Treasurer of this corporation, be and he hereby is, singly, authorized and directed to execute such documents, obtain such approvals and take such other action as he, in his sole discretion, deems necessary or desirable in order to effectuate the transactions contemplated by the foregoing resolutions, the taking of such actions and the execution of such documents to constitute conclusive evidence of its approval thereof. IN WITNESS WHEREOF, I have executed my hand and seal of the corporation this 30th day of July, 1979. (SEAL) AGREEMENT OF PURCHASE AND SALE THIS AGREEMENT, made this S1 day of "N v , 1979, between TAMARAC UTILITIES, INC., a Florida corp ration, hereinafter called "Seller" and CITY OF TAMARAC, FLORIDA, a municipal corporation organized and existing under the laws of the State of Florida, hereinafter called "City". WHEREAS, Seller owns and operates a water treatment and distribution system and wastewater collection and disposal system hereinafter referred to as the "Systems," providing a domestic water supply and sewage collection facility within the City of Tamarac and within a small area of the unincor- porated area in Broward County, Florida; and, WHEREAS, City has determined that the acquisition of Seller's systems is both in the interest of the present and future consumers of the system and is necessary to the future health, safety and welfare of the residents of City; and, WHEREAS, City, on &/ day of v! 11979, adopted a resolution authorizing the acquisition of Seller's systems under certain specified conditions; and, WHEREAS, Seller desires to sell its systems to City in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein contained, Seller and City hereby agree as follows: 1. EXHIBITS A. As soon as possible after the execution but not later than 30 days from date of execution unless otherwise specified in this Agreement, the Seller, at its sole expense, shall furnish City with three (3) copies of each of the following: Exhibit A: Plans and specifications showing the water treatment plants and wastewater treatment plants as now constructed, together with maps showing the water distribution lines and sewage collection lines comprising the system. Exhibit B: A copy of Seller's Certificates of Public Convenience and Necessity Numbers 28-14 and 25-S issued by the Florida Public Service Commission. Exhibit C (1): A schedule and copies of all agreements, hereinafter to be referred to as "Developers Agreements," entered into between the Seller and owners and developers of property regarding water and sewer services to be provided to the lands of such parties. Exhibit C (2): A schedule and copies of all other agreements which are acceptable to City, entered into between the Seller and other parties which would or might otherwise be considered to be an encumbrance upon the purchased assets and any lease agreement entered into by Seller. These matters, leases, and agreements are referred to as "Permitted Encumbrances." Seller represents that these Permitted Encumbrances have all been presented in writing to City prior to execution of this Agreement. Exhibit D (1): A legal description of all of the real estate owned or used (leased) by the Seller in con- nection with the operation of its water and sewer systems. 2. Exhibit D (2): A description of all the easements and rights -of -way owned or used by Seller for the construction, operation and maintenance of the systems. In this regard, maps showing the location of such easements together with a true copy of the easement agreements, and the legal description of the private easements will be pro- vided. Easements used in the present operation of the facilities located or shown in recorded plats or lines installed in publicly dedicated rights -of -way need not be shown. Exhibit E: Inventory of equipment, vehicles, tools, parts, laboratory equipment, office equipment, unset or reserve meters and other personal property that Seller uses in normal operation of the systems. This inventory will also include itemization of any items located on any property to be con- veyed to City which are not included in the sale of the purchased assets. This will be updated at closing. Seller will notify City when inventories are to be taken and a repre- sentative of City may be present at taking of inventories. Exhibit F: Copies of permits, applications or other documents, together with effective dates and expiration dates (if any),demonstrating approval of the water and sewer facilities. Documentation shall be provided for all applicable regulatory agencies, including but not limited to, the (a) Florida Department of Health and Rehabilitative Services, (b) Broward County Health Department, (c) South Florida Water Management District, (d) De- partment of Environmental Regulation, and (e) Public Service Commission Exhibit G: A schedule of all customers' advances, if any, held by Seller for construction, including the amounts thereof, the parties who made the advances, the status of the construction work and the purpose for which the customer advances were made, which list shall be updated to the date of closing. Exhibit H: A list of customer securities deposits by name and account number, setting forth the amount of each 3. individual deposit and the aggregate total thereof. This will be furnished at closing. A draft will be furnished ten days before closing. Exhibit I: Copies of Seller's Annual Report to the Florida Public Service Commission, as filed for each of the years 1975 through 1978, inclusive. Exhibit J: A copy of the franchise agreement between Seller and City. Exhibit K: A copy of Seller's Tariff and Uniform Extension Policy as filed with the Florida Public Service Commission. Exhibit L: A disclosure of any and all existing and pending actions at law or in equity or before administrative bodies pertaining to the ownership or operations of the systems, including but not limited to, customer refunds and claims for the relocation of lines and rate proceedings. Exhibit M: At the time of execution of the Agreement, Seller shall provide as an exhibit a description and specific reference to any newly effective or pending legislation or reaula- tions, if any, known to it which would have an effect on the operation of the system. Exhibit N: A certified copy of a Resolution authoriz- ing Seller to execute this Agreement. Exhibit 0: An allocation of the 8,600 residential or commercially converted units which Seller controls by parcel of property and owner. These allocations may be moved within Land Sections 4, 5, 6, 7. This Exhibit will be furnished at time of closing. Exhibit P: A list of open purchase orders in excess of $5,000.00, judgments and liens of Seller, if any. All such liabilities will either be satisfied or bonded to satisfaction of City at or prior to closing. 4. Exhibit Q: This Agreement is subject to a title policy being given to the City at Seller's expense. At the time that the title report is written, if the City has no reservations about the exceptions shown therein, City shall have the right to accept them as they are shown or in the event that they are not willing to so do, agree that the Agreement shall be null and void and this Agreement shall be of no further force and effect. Exhibit R: A representation by Seller of its extension policy as the same would apply to the installation of water transmission and sewerage collection mains in the geographic area of Land Section 7. Such representation and any extension of same shall demonstrate that the respon- sibility for the installation of such lines and mains rests entirely with each property owner or developer in said Section 7. Payment of the portion of the "Contribution" charge re- lating to plant capacity as described and set forth in this Agreement does not include the extension of mains and lines to Section 7 nor does the City assume responsibility for same. 5 I A B. City Exhibits: Within 60 calendar days after the execution of this Agreement, City will, through its engineers, furnish Seller the following list. If the Seller and City do not agree upon such list, Seller may, within seven (7) business days elect to cancel this contract and the same shall be of no further force and effect. Exhibit B (1): A list of any mechanical com- ponents or facilities or lines of Seller requiring repair. Each item listed shall have a corresponding cost which, in the opinion of City's engineers, represents the economic value of such repair or correction. Seller shall have up to ten (10) days prior to the anticipated closing date to repair or correct each of the items shown. As item is so corrected, City's engineers shall so certify by appropriate writing to Seller and the repaired item shall be considered removed from this Exhibit. Items not corrected by Seller shall result in a corresponding deduction from the purchase price in an amount equal to amounts shown on the Exhibit corresponding to each item. Any item repaired which breaks down again prior to closing shall be repaired at the expense of Seller. Any breakdown affecting the operation of the water collection, water dis- tribution, wastewater treatment or sewer collection lines subsequent to inspection shall be repaired by Seller. It is the intention of the parties that Seller transfer a fully functioning utility to City. T. 2. PURCHASED ASSETS For convenience, the term "purchased assets" shall be used to designate all assets, business properties and rights which Seller owns or is interested in which shall include, but not be limited to, items A through H listed below. "Purchased assets" shall not include cash or bank accounts at time of closing which are Seller's sole property and which are not subject to refund to customers. Purchased Assets do include items listed in Exhibit G. A. The real estate owned by Seller described in Exhibit D (1) and all other buildings and improvements owned by Seller and located thereon. B. All easements and rights -of -way and consents and other interests in lands owned by Seller for the construc- tion, operation and maintenance of their systems, including but not limited to the easements specifically set forth in Exhibit D (2). C. All water and sewer facilities of every kind and description whatsoever, including, but not limited to, supply wells and pumps, water treatment plants, transmission mains, distribution mains, supply pipes, valves, meters, meter boxes, service connections and all other physical facilities and proper installation used in connection with the water treat- ment plants water supply and distribution system and all lift stations, pumping stations, sewage collection mains, pipes and lines, sewage treatment plants, sewage disposal lines and ponds, equipment and machinery owned by Seller and used in connection with the operation of the sewerage system. D. All franchises of every character whatsoever, and all certificates, immunities, privileges, permits, water withdrawal rights, licenses, license rights, easements, 7. consents, grants, ordinances, leaseholds, rights -of -way and all rights to construct, maintain and operate plants and systems for the procuring, distribution and transmission of water and the collection, treatment and disposal of sewage and all rights granted to Seller under the Franchise and Certificate of Public Convenience and Necessity, copies of which have been provided and are referred to as Exhibits 6 and L. Specifically included for emphasis are all permits and authorizations issued by the Department of Environmental Regulation. If necessary to apply for permission to transfer any items listed above, Seller agrees to join with City in said application. E. The items of inventory described in Exhibit E. F. All past and current customer records, books, prints, plans, engineering reports, surveys, specifications, shop drawings, equipment manuals, and other information re- quired by City in possession of Seller at time of closing pertaining to the operation of the systems. G. Three (3) sets of detailed drawings showing all water mains and the water treatment plants, sewer mains and treatment plants. Such drawings to include, but not be limited to, structural, mechanical and electrical details for all facilities. Record drawings will be supplied where available. Such drawings shall also consist of any original tracings, sepias, or other reproducible material where the same are in possession of Seller. H. All the Developers Agreements described in Exhibit C (1). 3. SELLER'S WARRANTIES The Seller hereby represents and warrants to and agrees with City as follows: A. Good, marketable or insurable title to the purchased assets shall be conveyed free and clear of all••liens, claims and encumbrances, except for the Permitted Encumbrances as described in Exhibit C (2) and Section 7. B. All water connections shall include a meter, meter box and service lateral, all installed. There shall be no free and unmetered services at the date of closing, save and except that no charge is made to the fire protection authorities for water used for fire fighting purposes. C. That Seller will not enter into any Developer Agreements after the signing of this Agreement, unless said Agreements and the terms and conditions con- tained therein have been approved by City prior to Seller entering into said Agreement or Agreements. Such approval by City shall not be unreasonably withheld. D. Other than those set forth in Exhibit L, there are no actions, suits, or proceedings pending or to Seller's knowledge, threatened against or affecting the purchased assets, at law or in equity, before or by any federal, state, county, municipal or government court, department, commission, board, bureau, agency, or instrumen- tality which involve the possibility of any judgment, assess- ment or liability which would affect the title of Seller. E. Seller will warrant and defend City's title to and possession of the purchased assets against all claims and persons (save only the Permitted Encumbrances) and that should suit be filed contesting title to any such properties a or if any of the said properties should be levied against by virtue of any proceeding based on anything that occurred prior to the time of closing, Seller will promptly, after any suit is filed, or the properties or any of them levied against, cause the properties to be released and the liens to be dis- charged without expense to the City. F. In the interim between the execution of this Agreement and the closing hereunder, Seller will maintain and operate the said systems in a normal, proper and reasonable manner to the end that the value of the same shall in no way be diminished other than by normal wear and tear. G. Seller has not heretofore entered into any contract which obligates it to extend the water and/or sewer systems or to furnish service in addition to the services now being rendered by it, except as set forth in the Developers Agreements contained in Exhibit C (1). H. Seller is duly incorporated and authorized to do business under the laws of the State of Florida. I. The execution of this Agreement has been duly authorized by Seller's Board of Directors and stockholders. J. That until the closing date of this Agreement, Seller shall not, without the written consent of City, dispose of or encumber any of the assets or property to be sold here- under with the exception of any transactions occurring in the ordinary course of Seller's business. K. That the contracts and agreements listed in Exhibit C (1) are valid, legally binding contracts in good standing and in full force and effect, and there are no undis- closed liabilities in relation thereto. no L. That Seller will obtain renewals for permits or other approvals which expire prior to closing, and will deliver to City valid operational permits or approvals. Seller will join with City in an application to the Department of Environmental Regulation and other regulatory bodies for transfer of all licenses and permits. M. That the Seller will defend any citations from the Department of Environmental Regulation or other bodies with regulatory authority over the utility arising out of the operation of the utility prior to closing and that at the time of execution of this Agreement there are no such citations save and except the Permitted Encumbrances. 3. A. CITY'S WARRANTIES A portion of the purchase price for the purchased assets is being paid to Seller by allowing Seller to retain a portion of the "Contribution" charge which City will impose on all connections to the systems after the date of closing. (See Section 4). City agrees that it will,by appropriate action, establish and endeavor to maintain a uniform "Contribution" charge throughout the system and that, in any event, the portion of said"Contribution" charge which relates to the water dis- tribution and sewage collection systems (as opposed to treat- ment plants) will never be less than $542• per dwelling unit (single family, multi -family, or commercial equivalent to single family.) Pursuant to the provisions of Section 4 herein, Seller is authorized to collect and retain a portion of said "Contribution" charge for a total of 8,600 dwelling units which dwelling units, after payment to Seller, will be allocated to the property owners or their successors, identified in Exhibit 0 and geographically located in land Sections 4, 5, 6, 7 and "Concord Village". City agrees to withhold service to said 8,600 dwelling units or to the property shown in Exhibit 0 until Seller shall have certified to City that Seller's portion of said "Contribution" charge has been received and a number of dwelling units corresponding thereto has been allocated and released. 12. 4. PURCHASE PRICE AND TERMS On the terms and subject to the conditions set forth in this Agreement, Seller agrees to sell, convey, assign, transfer and deliver to City, and City agrees to acquire and accept as hereinafter provided at the time of closing, the purchased assets, for the total purchase price of ELEVEN MILLION DOLLARS ($11,000,000.00) plus Seller's retention of a portion of the future "contribution" charges for 8,600 units in the amount of $ 542.00 per unit. The eleven million dollars shall be due and payable at closing. City acknowledges that Seller is conveying, as part of the purchased assets, utility facilities which have been constructed and/or installed to provide service for future developments. In order to pay Seller for said assets, City agrees that Seller shall collect and retain $ 542.00 for each single family, duplex, multi -family dwelling unit. In the instance of commercial connections, $ 542.00 for each equivalent single family unit based on an equivalency factor of one unit for each 350 G.P.D. of estimated demand. City expressly agrees to serve said 8,600 units and reserves said units unto Seller herein. Seller has entered into agreements with certain property owners and/or developers, under which agreements Seller will assign and allocate portions of said 8,600 units and said property owners and developers will agree to pay Seller the sum of $ 542.00 for each such unit over a term of years and in accordance with the provisions set forth in said agreements. To the extent that Seller shall certify that it has received payment in the amount of $542.00 for each unit, and that a capacity for such unit or units has been assigned and allocated, City agrees to provide service to such units and to allow said property owner or developer full credit against the City's "contribution" charge for the 13. said $ 542.00 per unit paid to Seller. Seller will periodically advise City of its receipt of said portion of the "contribution" charge and the allocation or assignment made by specifying the property owner or developer and the property or geographic area to which said units apply. In accordance with City's warranty in Section 3-A herein, City agrees to withhold service to said 8,600 units, except and to the extent that Seller certifies that it has received payment for said units in accordance with this Section. As set forth in Paragraph 5 of this Agreement, the acquisition shall be accomplished, to the extent necessary, through the sale and delivery of Bond Anticipation Notes (hereinafter referred to as BANS) which will pledge only the revenues of the water and sewer system and which will not pledge any other revenues of the City or its full faith and credit. The BANS issued will be funded and retired (both principal and interest) at the time of the sale and delivery by City of a sufficient principal amount of Water and Sewer Revenue Bonds of the City of Tamarac which revenue bonds will pledge only the revenues of the water and sewer system and which will not pledge any other revenue of the City or its full faith and credit. 14. 5. BOND ANTICIPATION NOTECLOSING AND BOND DELIVERY A. Bond Anticipation Note Closing: The parties recognize that Seller has presently imposed a moratorium on new connections to its Systems. Seller has determined and City's Engineers have confirmed, that it is in the interest of prospective future consumers of Seller's Systems that this acquisition be closed at the earliest date consistent with proper documentation and procedures in order to expedite removal of the moratorium on new connections. Accordingly, this transaction shall be closed upon City's sale and delivery of Bond Anticipation -Notes in a principal amount of $11,000,000.00 plus the anticipated costs of necessary repairs and improvements to the system, costs of operations for 60 days and expenses to consummate the acquisition of the Systems from Seller at a price of 100% of par value plus accrued interest to the date of delivery, bearing interest at a rate not to exceed 7.5% per annum. In the event that City does not elect to or is not able to sell BANS in the marketplace, Seller hereby agrees to purchase and/or cause to be purchased a BAN in an amount of $11,000,000.00 issued at a rate of interest of 7.5% in order to provide the City with a portion of funds for the simultaneous acquisition of the Systems. Said BAN issue shall be dated the date of adoption of the resolution or ordinance authorizing an issue of Series 1979 Water and Sewer Revenue Bonds of the City of Tamarac and shall mature 1 year from the date thereof. Said BAN shall be in form acceptable to Seller, and when delivered, shall be accompanied by the preliminary approving legal opinion of Brown, Wood, Ivey, Mitchell & Petty, bond attorney of New York, N.Y., or of other nationally recognized bond counsel acceptable to Seller with respect to the Water and Sewer Revenue Bonds, in form satisfactory to Seller. 15 . • Payment of the purchase price by City shall be made to Seller either at the time the BAN is purchased and delivered, or if the BAN is not so purchased by Seller at the time of delivery of cash, which shall not occur later than three (3) days following certification of a favorable vote on the referendum called by the City. If the closing does not occur within three (3) days following certification, Seller may declare this Agreement null and void. At the closing, whether BANS or cash, and simultaneously with payment, Seller shall deliver to City, the following: (1) A Bill of Sale with full warranties of title conveying all tangible assets as hereinabove provided, together with an assumption of only those permitted encumbrances re- lating to said assets as is specifically provided for in this Agreement. (a) A Deed conveying all real estate, together with all and sundry the tenements, hereditaments and appur- tenances thereunto belonging or in any wise appertaining, and also all estates, right, title, interest, property, possessions, claims and demands whatsoever, in law as well as in equity, of Seller in and to the real properties described in Exhibit D (1). The conveyance of real estate by Seller shall be by general warranty deed in form and substance common to the conveyance of real estate in the State of Florida. Conveyance shall be a fee simple title to such real estate, free and clear of all liens and encumbrances, except the Permitted Encumbrances described in Exhibit C (2) and Section 8. (2) All necessary instruments transferring and conveying all rights -of -way, permits and easements enjoyed and owned by Seller in operation of its water and sewer system. Seller shall assign and quit -claim all of its right, title and interest in all such easements and rights -of -way. 16. (3) Certified copies of corporate resolutions authorizing the delivery, transfer and sale, which shall be approved by counsel for City. (4) At closing a detailed schedule of customer accounts in existence at the time of closing will be furnished by Seller to City. A check in the amount of customer deposits shown on the detailed schedule shall be paid to the City at closing. The Seller shall certify that interest to the date of closing on customer deposits has been credited to customers' bills on the last billing made to customers prior to the City's ownership and control, or depending on the status of billing cycles, Seller shall pay to City an amount equal to accrued interest on customer deposits and City shall allow appropriate interest credit to customers on the next succeeding billing cycle. Seller will defend and indemnify City from all claims of irregularity and error in customer deposits that arise within two years of closing. (5) All records, drawings and specifications (if available) including such record drawings as are available of the water and sewer systems maintained and used by it in con- nection with the operation of the systems, all as set out in Paragraph 2 (f) and 2(g). (6) An assignment of the Developers Agreements listed in Exhibit C (1). (7) A commitment or binder by a recognized and acceptable title company, agreeing to issue its final policy insuring the marketability of the title to the real estate included in Exhibit D (1) and those easements not in the public right-of-way included in Exhibit D (2) in the amount of ONE MILLION DOLLARS ($1,000,000.00). Subsequent to closing, delivery of the title policy shall be the responsiblity of Seller. The costs of said title insurance shall be borne by Seller. 17. (8) Duly executed titles to all motor vehicles owned and properties having title certificates which may be furnished post closing. (9) Recording charges and documentary stamps shall be at the expense of Seller. (10) A document evidencing acknowledgment of the Florida Public Service Commission of a plan of refund to customers of Tamarac Utilities as set forth in Section 6 herein or as otherwise agreed by all parties. (11) Appropriate documentation to allow City to negotiate checks of customers in payment of obligations for service incurred prior to closing. B. BOND DELIVERY. At the time of sale and delivery of the Series 1979 Water and Sewer Revenue Bonds, provision shall be made for the retirement of all outstanding BANS and accrued interest thereon. In consideration of Seller agreeing to purchase certain BANS, City agrees to proceed with all due diligence toward the earliest possible validation of the permanent Series 1979 Bonds and their sale and delivery. City agrees to initiate validation proceedings expeditiously upon authorizing the Bonds and the BANS, which authorization shall occur at the same meeting. City shall pursue said validation diligently to the end that said validation shall be completed at the earliest possible date. Subsequent to validation and the expiration of the appeal period, City shall sell within twenty (20) days and deliver, within twenty (20) additional business days thereafter, said Series 1979 Bonds. In the event that any unforeseen circumstances not attributable to the Seller and not otherwise agreed to by parties to this Agreement shall cause a delay in the validation or delivery of the bonds or result in the BANS not being funded as anticipated herein, the Seller shall have the right to re- quire the sale and delivery of the Series 1979 Bonds to Seller SM in amounts adequate to provide for full payment of the BANS and any accrued interest thereon notwithstanding that City may be unable to provide an unqualified legal approving opinion of bond counsel accompanying said bonds. If Seller acquires and holds the bonds, Seller shall have the right to enforce the rate covenant to ensure that net revenues of the Systems are_not less than 130% maximum annual principal and interest of the Series 1979 Bonds of the City. Said Bonds shall be for a term not longer than thirty (30) years and shall bear interest at 7.5% per annum. City shall provide all documentation, including, but not limited to, bond circulars, official state- ment, accountants, legal opinions and such other reports and documents normally associated with the issuance and sale of similar water and sewer revenue bond issues. IM' 6. REFUNDS TO CUSTOMERS Seller has advised City that, pursuant to certain orders of the Public Service Commission, it is required to refund previously collected revenues. City has advised Seller that the provision for said refunds must be satisfactorily made concurrently with the closing on bonds, with the end that said revenues will be refunded in an orderly fashion consistent with a plan approved by the Florida Public Service Commission. Seller agrees to set aside in escrow, an amount from its purchase price to be set by the Public Service Commission not to exceed $4,000,000.00 to include administra- tive costs, and any interest and any other revenue corrections for the purpose of accomplishing such refund. In the event that Seller is required to purchase the BAN at closing, then said refund escrow shall only be established when validated 1979 Water and Sewer Revenue Bonds are issued and sold and said BAN is funded and retired. City agrees to act as disburs- ing agent for the refunds after closing to those determined to be entitled to same. Seller has advised City that subsequent to the signing of this Agreement, Seller intends to appear before the Florida Public Service Commission and seek acknowledgment of a refund plan and acknowledgment of the City's agreement to assume such liability as the full and complete discharge of Seller's obligation to such claims of refund from those entitled to same. If the cost of refund as determined by the Public Service Commission exceeds $4,000,000.00, Seller reserves and insists upon the absolute total right to declare this Agreement null and void. 20. 7. OTHER PERMITTED ENCUMBRANCES This sale is made and City will take title subject to the following (the "Permitted Encumbrances"): (a) All taxes, assessments and special assess- ments on the purchased assets arising and accruing after the closing date. Taxes for the year of closing shall be prorated as hereinafter set forth. (b) The Agreements relating to the Developers Agreements and permitted encumbrances, per schedule Exhibit C (1) and (2); provided, however, City will assume no undisclosed liabilities thereunder, except the obligation for continued service. Seller will satisfy all other encumbrances at or prior to closing. (c) Present and future building restrictions, zoning and use regulations and all other present and future laws, ordinances, resolutions, regulations, and orders of any governmental authority having jurisdiction over the purchased assets or their operation. (d) The condition of title of the real property owned by Seller (other than utility and drainage easement areas) resulting from any easements, conditions, restrictions, or reservations of record common to property similarly situated, provided that same do not materially affect the use of the purchased assets as a water or sewer system in the manner required by City. (e) The condition of title of the easements described in Exhibit D (2), provided that there are no defects in title that will materially affect adversely or interfere with the normal operation of the water and sewer systems and the use of the purchased assets by the City. 21. 3. AGREEMENT TO FULFILL OBLIGATIONS TO CUSTOMERS: NEW AGREEMENTS City agrees to fulfill Seller's obligations to individual retail customers presently connected.to the Systems insofar as such obligations relate to the furnishing of water and sewer service. City shall assume Seller's liability under any customers deposit agreements incident to the customers' deposit funds delivered to it or credited to City at closing, except that City shall assume no liability for any such customer's deposit agreement or customer's deposit not set forth and itemized on the list of such agree- ments and deposits furnished to City by Seller at closing. Seller shall proceed with any installation of water and sewer lines or mains as would be proper and usual in the normal course of business, provided that the terms of all new agreements made before the closing which involve the undertaking of Seller to extend its system, to install new mains or to agree to accept new mains installed by others, or to furnish water and sewer service, must be first approved by City in writing. Any lines installed subsequent to execution will become a part of the purchased assets. 22. 9. ACCESS TO RECORDS City shall be entitled, in the interim between the execution hereof and the closing hereunder, to have access to such records, books and files of Seller as may be necessary to set up its books and records in order to facilitate the commencement of its operation of the system in an efficient manner and to properly evaluate the feasi- bility of the sale. Seller agrees, during a reasonable period prior to closing, to assist City personnel in the assimilation and understanding of the operation of the Systems to the end that the transition of the ownership, operation and control -shall be facilitated. 23. 10. OTHER DOCUMENTS AND FURTHER ASSURANCES The parties agree that at, or any time after, the closing hereunder, each will, upon request of the other party, execute and deliver such other documents and instru- ments and such other further assurances of title as may be reasonably required by the other to carry out the intent of this Agreement. 24. 11. CONDITIONS TO CLOSING City's obligation to complete the transactions provided for herein shall be subject to the performance by Seller of all its agreements to be performed hereunder on or before the closing date, and to the further consideration that: (a) The representations and warranties of Seller contained in this Agreement are substantially true and correct on and as of the closing date with the same effect as if made on and as of said date. (b) As of the closing date, there shall have been no material adverse change in affairs, business or property of Seller. (c) The City's Consulting Engineers or other qualified experts engaged by the City have determined and advised that the proposed acquisition is both feasible and in the best interests of the consumers of the system. The City has performed preliminary work which indicates that the acquisition is in fact feasible. This will be done within 60 calendar days of Agreement. If report shows that purchase is not feasible, then Agreement may be declared null and void by either party. (d) The City shall be excused from the repayment of franchise fees or other fees improperly paid. 25. 12. TAXES AND INSURANCE: OTHER PRORATIONS Real and personal property taxes on properties conveyed to City under this Agreement shall be prorated as of the date of closing, based on 1978 assessments, unless 1979 assessments are complete at time of closing. Any deposits, including but not limited to, insurance shall be cancelled by Seller as of the date of closing, and any prepayment shall be the property of Seller. Telephone and electricity utility deposits shall be the property of Seller. 26 13. PERSONNEL City will seriously consider employment of present employees who would like to continue in their present work. Terms of employment including, but not limited to, salaries and benefits are not affected by this Agreement. Seller will pay the salaries of employees to date of closing and will discharge all obligations, if any, that exist to said employees for vacations, severance pay, pensions and any other employee benefits. 27. a 14. ACCOUNTS RECEIVABLE CLOSING Accounts receivable to Seller for unpaid water and sewer service as of the date of closing shall belong to Seller. Seller shall furnish to City at closing, a listing of its accounts receivable, by customer and individual account. No receivable owed to Seller on account of water and sewer service more than sixty (60) days in arrears shall be included on such list. At closing City shall pay to Seller, a sum equal to the aggregate total of such receivables and City will acquire such receivables to be collected in the ordinary course of business. The parties recognize that the closing date may be established during a normal billing cycle of Seller. Gross receivables from water and sewer services shall be estimated based upon the preceding month's billings and a proration of such receivables shall be made with City making payment to Seller for the number of days elapsed in the then current monthly billing cycle based upon said estimate of the then current billing cycle receivables. 15. LIMITATIONS OR MODIFICATIONS This instrument, containing the entire written agreement between the parties, may not be varied, modified, altered or added to by oral agreement, but only by written instrument signed by the parties hereto. 29. 16. SPECIAL CONDITION PRECEDENT AND SURVIVING PROVISION The parties recognize and agree that City's municipal charter provides that a referendum vote of the citizens be favorably conducted in order that City may be authorized to issue the Series 1979 Bonds and/or the BANs as -described herein. In executing this Agreement the parties further agree that the favorable results of said referendum is a special condition precedent to the effectiveness of this Agreement and the parties further acknowledge that in the event said referendum shall fail to approve the acquisition which is the subject matter of this Agreement or the issuance of Series 1979 Bonds and/or BANs proposed to be issued for the purpose of paying the purchase price herein, then this Agreement shall become null and void and of no further effect and neither party shall be liable in any way to the other. City specifically agrees that, subsequent to the signing of this Agreement, it will immediately proceed to advertise and conduct an appropriate referendum designed to seek the approval of its citizens for the acquisition and the appropriate issuance and sale of bonds as aforesaid. City further agrees that it shall seek the advice of Brown, Wood, Ivey, Mitchell and Petty, bond attorneys, of New York, New York, or such other nationally recognized bond counsel as may be accepted by both parties, which bond counsel shall prepare the ballot question and related proceedings in connec- tion with said referendum. City agrees that said referendum shall be advertised, held and conducted so that results of said referendum shall be known and certified not later than seventy-five (75) days from the date of signing of this Agreement. 30. r t 17. OTHER CONDITIONS PRECEDENT Conditions to be performed, observed and complied with as conditions precedent to closing are: (a) Neither City nor Seller shall be prohibited by decree or law from consummating on the closing date, the transactions contemplated by this Agreement. (b) All steps shall have been taken by City to authorize the Bonds and BANs referred to in Paragraphs 4 and 5 and such BANs shall have been issued and delivered to Seller in accordance with Paragraph 5 hereof. (c) City and Seller shall have adopted all resolutions and have taken all actions and proceedings and have executed all instruments and documents reasonably required to be performed and executed at or before the closing date. (d) Compliance or performance of the foregoing conditions may be agreed upon or waived by agreement of both parties. (e) In the event the transaction is not closed for any of the foregoing reasons, neither party shall be liable to the other party. 31. k 18. ASSIGNABILITY This Agreement shall not be assignable by either party without the consent of the other party. 32. :19. ACCOUNTS PAYABLE City shall not assume any of the accounts payable nor any debt, either by way of mortgage or other obligations of Seller. City will assume no outstanding or contingent liabilities except as may arise from the Developer Agreements or those matters set forth as Permitted Encumbrances. 33. 20. NOTICES All notices required pursuant to this Agreement shall be properly given by United States Certified Mail addressed to the party to which notice is to be given at the following respective addresses, unless written directions to the.contrary are given. Tamarac Utilities, Inc. c/o The Marmon Group 39 South LaSalle Street - Room 520 Chicago, Illinois 60603 City of Tamarac/Attention City Manager 5811 Northwest 88th Avenue Tamarac, Florida 33321 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals as of the day and year first above written. WITNESSES: ATTEST: City Manager ATTEST: TAMARAC UTILITIES, INC. By i Its ,President AT "% A' CITY OF TAMARAC;, FLOR By By APPROVED AS TO FORM: City Attorney 34. STATE OF FLORIDA ) ) SS: COUNTY OF BROWARD ) I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforementioned to take acknowledgments, personally appeared WALTER W. FALCK, as Mayor, and ED GROSS, as City Manager, of the CITY OF TAMARAC, a municipal corporation, to me known to be the persons who executed the foregoing instrument, and they acknowledged before me that they executed the same on behalf of said corporation. WITNESS my hand and offic a, seal in the to a and County aforementioned, this day of , 1979. ARY PUBLM, Sate of Florida My Commission Expires: STATE OF FLORIDA ) ) SS: COUNTY OF BROWARD ) I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State and County aforementioned to take acknowledgments, personally appeared R. C. GLUTH, as Vice President, and MYLES J. TRALINS, as Assistant Secretary of TAMARAC UTILITIES, INC., a Florida corporation, to me known to be the persons who executed the foregoing instrument, and they acknowledged before me that they executed the same on behalf of said corporation. WITNESS my hand and offici�-seal in County aforementioned, this(�� i day of NOTARY PUBLIC, Sta My Commission Expires: tate and -11\ , 1979. of Flo