HomeMy WebLinkAboutCity of Tamarac Resolution R-86-3777
Introduced by:_... Temp. Reso. #A32A
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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
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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