R19-022 1 RESOLUTION NO. R19-022
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO
5 SIGN AN ASSET PURCHASE AGREEMENT BETWEEN THE
6 CITY OF BOYNTON BEACH AND PARRY VILLAGE, INC., FOR
7 THE ACQUISITION OF THE PARRY VILLAGE WATER AND
8 WASTEWATER SYSTEM; APPROVING THE ASSOCIATED
9 COSTS; AND PROVIDING AN EFFECTIVE DATE
10
11 WHEREAS, Parry Village, Inc., (Parry Village) has been in discussion with the
12 Boynton Beach Utilities Department regarding the possibility of the Utilities Department
13 assuming responsibility for the provision of potable water and the management of their
14 water distribution and wastewater collection systems; and
15 WHEREAS, the City Commission, upon recommendation of staff, deems it to be
16 in the best interests of the citizens and residents of the City of Boynton Beach to approve
17 and authorize the Mayor to sign an Asset Purchase Agreement with Parry Village, Inc., for
18 the acquisition of the Parry Village water and wastewater system.
19 NOW,THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF
20 THE CITY OF BOYNTON BEACH,FLORIDA,THAT:
21 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
22 being true and correct and are hereby made a specific part of this Resolution upon adoption
23 hereof.
24 Section 2. The City Commission of the City of Boynton Beach, Florida hereby
25 approves and authorizes the Mayor to sign an Asset Purchase Agreement with Parry Village,
26 Inc., for the acquisition of the Parry Village water and wastewater system, a copy of which
27 is attached hereto as Exhibit"A".
28
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29 Section 3. That this Resolution shall become effective immediately.
30 PASSED AND ADOPTED this 19th day of February, 2019.
31 CITY OF BOYNTON BEACH, FLORIDA
32
33 YES NO
34
35 Mayor— Steven B. Grant
36
37 Vice Mayor— Christina L. Romelus
38
39 Commissioner—Mack McCray
40
41 Commissioner—Justin KatzL.
42
43 Commissioner—Aimee Kelley
44 _
45 VOTE `)'U
46 ATTEST:
47
48
49 ' .
44,1,4
50 Judi A. Pyle, CMT
51 City Clerk
52
53
54 (Corporate Seal)
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ASSET PURCHASE AGREEMENT BETWEEN
PARRY VILLAGE, INC. AND
THE CITY OF BOYNTON BEACH
This Asset Purchase Agreement (the "Agreement") is entered into on this
day of C.'p - v , 2019 (the "Effective Date") by and between the City of
Boynton Beach, a Florida municipal corporation, (hereinafter referred to as "Purchaser")
and Parry Village, Inc., a Florida not for profit corporation (hereinafter referred to as
"Seller").
WITNESSETH:
WHEREAS, the Seller is the owner of a utility system consisting of a water
distribution system in Palm Beach County, Florida, (the "Facilities") and serving the
residential community known as Parry Village (the "Property"); and
WHEREAS, a detailed map of the Facilities to be acquired by Purchaser,
pursuant to this Agreement, showing the installation location and description is attached
hereto as Exhibit "A," and incorporated herein by reference (hereinafter referred to as
the "Utility Area"); and
WHEREAS, Seller is currently operating the Facilities; and
WHEREAS, Purchaser is engaged in providing utility services to the area where
Seller's Utility System is located, is interconnected with Seller's Utility System, and is
authorized to be in the business of furnishing water service to the various communities
in the Purchaser's Service Area; and
WHEREAS, Purchaser desires to acquire, and Seller desires to sell the water
distribution facilities, (collectively "Facilities") which are installed to provide utility service
to the Seller's community, subject to the terms and conditions of this Agreement, as
such Facilities may only be modified prior to Closing with the consent of the City of
Boynton Beach.
NOW, THEREFORE, in consideration of the mutual covenants as hereinafter set
forth, the parties hereto agree as follows:
ARTICLE I REPRESENTATIONS BY SELLER
{00220836.5 306-9905248} 1
1. Seller and Purchaser each represent and warrant that, to their respective actual
knowledge, as applicable below:
1.1 Seller represents and warrants to Seller as follows:
1.1 .1 Seller is a Florida not for profit corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida
authorizing it to construct, operate and maintain a public water
distribution system.
1 .1 .2 Seller is, and at the Closing (the "Closing" as hereinafter defined) will
be, the owner of the Facilities with good and marketable title, free and
clear of all liens and encumbrances.
1.1.3 Seller will cooperate fully with the Purchaser in any and all applications
or petitions to public authorities deemed necessary or desirable by
Purchaser in connection with the purchase of the Facilities from Seller
as contemplated herein.
1.1.4 Attached hereto as Exhibit "A" is a detailed map of the Facilities of
Seller to be acquired by Purchaser, pursuant to this Agreement,
showing the installation location and description. Said Facilities include
all water utility distribution assets and equipment owned by the Seller
within the Property. The engineering plans and specifications for the
Facilities will be transferred to Purchaser with all other records at
closing. Said Facilities expressly exclude customer deposits and
accounts receivables. The Facilities shall be transferred to the Seller
within 180 days of the Closing. The Facilities are constructed within
Sellers lands or are otherwise accessible to Seller and Purchaser. To
the extent that such rights of access do not exist, Seller agrees to grant
those rights at Closing.
1 .1.5 Attached hereto as Exhibit "B" is a list, signed by the Seller, and briefly
describing, as of the date of this Agreement, if any, the following:
1.1 .6 All pending or threatened action at law, suits in equity, and
administrative proceedings relating to the Facilities;
1.1.7 All contracts or obligations of any nature between Seller and
any other party including all developer agreements relating to the
Property.
1.1.8 All real estate, easements and rights and/or privileges
associated with the utility owned by Seller to be transferred
hereunder.
1 .1.9 Except as indicated in Section 1 .6, there are no pending or threatened
actions at law or suits in equity relating to the Facilities, or any pending
{00220836.5 306-9905248}
I
or threatened proceedings relating to the Facilities before any
governmental agency.
1 .1.10 Except as indicated in Section 1.6, there are no contracts or
obligations of any nature between Seller and any other party relating to
the Facilities or service or promised service.
1.1 .11 Neither Seller nor any entity or individual affiliated with Seller has
executed any agreement with purchasers of lots within the Service
Area, or any other parties, where such purchases or other parties have
acquired any interest in the Facilities used or to be used in rendering
service to them.
1.1.12 Facilities are capable of rendering utility service in the ordinary course
of business in compliance with all federal, state and local rules and
regulations including but not limited to all rules and regulations related
to environmental protection and drinking water.
1 .1.13 Prior to the Closing, the consummation of the transactions
contemplated herein will have been duly authorized by all necessary
action, corporate or otherwise, on behalf of Seller.
1.1.14 Seller has filed all tax returns which are required to be filed, and each
return which has been filed is true and correct, and Seller has paid all
taxes shown as payable on such returns when and as required by
applicable law associated with the Facilities.
1.1.15 No representation or warranty by Seller in this agreement, or any
statement or certificate furnished or to be furnished to Purchaser
pursuant hereto or in connection with the transactions contemplated
herein, contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
1.2 Purchaser represents and warrants to Seller as follows:
1.2.1 Purchaser is a Florida municipal corporation, validly existing under the
laws of the State of Florida authorizing it to operate and maintain a
public water distribution system.
1 .2.2 Purchaser is exempt from the Florida Public Service Commission
regulation (hereinafter referred to as the "Commission").
1.2.3 Purchaser will cooperate fully with the Seller in any and all applications
or petitions to public authorities deemed necessary or desirable to
consummation of the purchase of the Facilities from Seller as
contemplated herein.
1.2.4 Prior to the Closing, the consummation of the transactions
contemplated herein will have been duly authorized by all necessary
municipal action or otherwise, on behalf of Purchaser.
(00220836.5 306-9905248) 3
1 .2.5 No representation or warranty by Purchaser in this agreement, or any
statement or certificate furnished or to be furnished to Seller pursuant
hereto or in connection with the transactions contemplated herein,
contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE II CLOSING AND PURCHASE PRICE
2.1 The Closing shall take place within ninety (90) days of the date of the
Effective Date of this Agreement.
2.2 At the Closing, the Seller will, upon due performance by Purchaser of its
obligations under the Agreement, deliver:
2.2.1 such good and sufficient warranty deeds, bills of sale with
covenants of warranty, and sufficient instruments of sale, in form
and substance reasonably satisfactory to Purchaser's counsel, as
shall be required to vest in Purchaser marketable title to all of the
Facilities uses for the existing water system, including all required
easements for the Facilities, free and clear of liens and
encumbrances of every nature that would render title to the
Facilities unmarketable.
2.2.2 all of the files, documents, papers, agreements, books of account,
customer lists, original cost invoices, engineering drawings, and
records possessed by Seller pertaining to the Facilities, and any
other records reasonably needed by Seller, provided the Seller may
retain a copy of the same for its records;
2.2.3 all orders, permits, license or certificates issued or granted to Seller
by any governmental authority in connection with any authorization
related to the construction, operation or maintenance of its Facilities
or the conduct of its water utility business; and
2.2.4 Opinions of Counsels, dated as of the Closing, that upon the
delivery to Purchaser of the Bill of Sale and the approval respective
legislative parties under Section 180.301, Florida Statutes, that
Purchaser will then have title to the Facilities, free and clear of all
liens and encumbrances in connection with the acquisition,
construction, installation, and financing of the Facilities.
2.3 At the Closing and from time to time thereafter, Seller shall execute and
deliver such further instruments of sale, conveyance, transfer and assignment,
and take such other action (without expending funds or bring suit) as Purchaser
may reasonably request, in order more effectively to sell, convey, transfer and
{00220836.5 306-9905248)
assign to Purchaser any of the Seller's Facilities, to confirm the title of Purchaser
thereto, and to assist Purchaser in exercising rights with respect thereto. Nothing
herein shall be construed to expand or enlarge the list of assets described in
Exhibits "A," which is attached hereto.
2.4 The Purchaser acknowledges that the Utility System is being purchased
"as is," and may repair or replace facilities as it deems necessary without any
additional assessments imposed against the Seller's customer.
2.5 In order to perform repairs or system improvements, it is understood that
the Seller, and the individual property owners, as necessary, will grant both
temporary and permanent easements to the Purchaser so that the Purchaser
may provide continuous utility services to the Property.
2.6 Purchase Price: At the Closing, Purchaser shall, upon due performance
by Seller of its obligations under the Agreement, deliver to the Seller, the
Purchase Price (the "Purchase Price") in the amount of Ten and 00/100 Dollars
($10.00). Purchaser does not assume any liabilities of Seller wholly arising prior
to Closing. Any and all costs and fees, other than Seller's legal fees and
expenses, associated with the Closing shall be the Purchaser's responsibility. To
the extent permitted by law, and subject to the limitations contained in Section
768.28, Florida Statutes, Purchaser shall indemnify Seller with respect to any
liabilities of Purchaser wholly arising from and after the Closing Date.
2.7 Connection Fees: All property owners within Parry Village shall be
required to pay a Two Hundred Seventy Five and 00/100 Dollars ($275.00)
connection fee to the Purchaser prior to being connected to the Purchaser's
water delivery system. Purchaser shall bill for, and collect the connection fee and
it shall not be the obligation of Parry Village, Inc., to collect such fees. This
paragraph shall survive Closing.
2.8 At Closing, the Seller shall provide the Purchaser with a signed Water
Service Agreement for each unit/lot that will receive utility services from the
Purchaser. If a unit/lot does not sign a Water Service Agreement, the Purchaser
shall not provide utility services to the unit/lot that does not sign the Water
I Service Agreement. The Purchaser will waive the $100.00 deposit for all
customers within the Seller's service area if the individual lot/unit owners sign the
Utility Service Agreement prior to Closing. If individual unit/lot owners do not sign
the Utility Service Agreement by Closing, the individual unit/lot owners will be
required to apply to the Purchaser for service through the standard process
outlined in the Purchaser's Customer Service Policy, and the unit/lot owner will
be required to post a $100.00 deposit. This paragraph shall survive closing.
2.9 The Purchaser recognizes that the Seller is requesting extra valves on the
customer side. Only if the individual customer expressly requests the valve will
the valve fee be included in the stated connection fee of $275.
I
(00220836.5 306-9905248} 5
2.10 If either party defaults in the performance of any of its obligations or
requirements under this Agreement, and the defaulting party fails to remedy such
default within fourteen (14) days after written notice by the other Party of such
default(s) (the "Default Notice"), except for a failure to close in accordance with
the terms of this Agreement which shall constitute an immediate default for which
no Default Notice is required, the non-defaulting Party shall have, as its sole
remedies for such default, the option to pursue an action against the defaulting
party for specific performance of this Agreement and obtain such orders or
decrees as appropriate to achieve specific performance of the defaulting parties'
obligations under this Agreement or the right to declaratory judgment to have the
rights and obligations of the parties judicially construed. In the event either Party
is required to enforce this Agreement or have the same interpreted due
conflicting interpretations of the parties respective obligations hereunder, by court
proceedings or otherwise, the prevailing party shall be entitled to collect from the
non-prevailing party its reasonable attorneys' fees, paraprofessional fees and
costs incurred pretrial, at trial, and at all levels of proceedings, including appeals.
2.11 In the event the Seller is required to connect to centralized sewer service
provided by Purchaser, the Seller agrees to connect to Purchaser's centralized
sewer system, and pay the required connection fees. This paragraph shall
survive closing.
ARTICLE III AGENCY APPROVALS
3.1 Within fifteen (15) days following the execution of this Agreement
Purchaser will file applications for transfer with the appropriate regulatory
agencies requesting the transfer of the Public Utility permits or sequential water
use permit. Seller agrees to cooperate fully with Purchaser in Purchaser's
application for such transfers and approvals. The Purchaser shall be responsible
for all costs and expenses associated with the applications for transfer of Public
Utility permits or sequential water use permits. The parties agree to extend the
Closing date to accommodate any legally required approvals by any appropriate
regulatory agency concerning the transfer of the Public Utility permits for the
Property.
3.2 The annexation of Seller's development is not a condition precedent to the
Purchaser approving this Agreement.
ARTICLE IV GENERAL
4.1 Upon purchase of the Facilities of Seller, Purchaser agrees to supply all
customers within the Parry Village with continuous (subject to unavoidable
{00220836.5 306-99052481
outages) adequate and customary utility service, and to operate, continuously
maintain and promptly repair Facilities acquired herein. The Parry Village
customers shall receive a rate no less favorable than the rate offered by the City
of Boynton Beach to any other customer it serves outside of the boundaries of
the City of Boynton Beach. This warranty shall survive the Closing of this
Agreement.
4.2 Following Closing, the unit/lot owners served by the Utility System shall
call Purchaser's Customer Service centers for all utility service issues.
4.3 The Purchaser agrees to assume all responsibilities and costs for the
initial connection of Seller's Facilities to Purchaser's Utility System.
4.4 The Seller agrees to assume all responsibilities and costs for the
disconnection of Seller's Facilities equipment from the Seller's Utility Area.
4.5 The failure of either party hereto to enforce any of the provisions of this
Agreement or the waiver thereof in any instance by either party shall not be
construed as a general waiver or relinquishment on its part of any such
provisions, but the same shall, nevertheless, be and remain in full force and
effect.
4.6 Any notice of delivery required to be made hereunder may be made by
mailing a copy thereof addressed to the appropriate party as follows:
If to Purchaser: Mr. Colin Groff,
Assistant City Manager
City of Boynton Beach
124 E. Woolbright Road
Boynton Beach, Florida 33435
With Copy To: Lori LaVerriere, City Manager
P.O. Box 310
Boynton Beach, FL 33425
Attn: Lori LaVerriere, City Manager
With Copy To: James A. Cherof, City Attorney
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
If to Seller: Robert Rubinstein, Esq.
Becker & Poliakoff, P.A.
625 N. Flagler Drive, 7th Floor
West Palm Beach, FL 33401
{00220836.5 306-9905248) 7
Delivery, when made by registered or certified mail, or via overnight delivery
service (such as FedEx or UPS) shall be deemed complete upon mailing or
delivery to the service provider.
4.7 The Attachments to this Agreement are a part hereof and are hereby
incorporated in full by reference.
4.8 This Agreement shall be governed by the laws of the State of Florida.
Venue for any litigation filed to enforce the terms and conditions of this
Agreement shall be filed in the appropriate state or federal court located in Palm
Beach County, Florida
4.9 The representations and warranties contained herein Article I shall
survive, and continue in effect, after the Closing for a period of one year from the
date of Closing.
4.10 Seller agrees to indemnify Purchaser, its successors and assigns, and
hold it harmless against any loss, damage, liability, expense or cost accruing or
resulting from any misrepresentation or breach of any representation, warranty or
agreement on the part of the Seller under this Agreement or from any
misrepresentation in or material omission from any certificate or other document
furnished or to be furnished to Purchaser by Seller. This provision shall survive
Closing.
4.11 To the extent permitted by law, and subject to the limitations contained in
Section 768.28, Florida Statutes, Purchaser agrees to indemnify Seller, its
successors and assigns, and hold it harmless against any loss, damage, liability,
expense or cost, accruing or resulting from any misrepresentation or breach of
any representation, or warranty or agreement made or to be performed by
Purchaser under this Agreement or from any misrepresentation in or material
omission from any certificate or other documents furnished or to be furnished to
Seller by Purchaser. This provision shall survive Closing.
4.12 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
4.13 Modification. This Agreement may not be changed, altered, modified,
amended or terminated except by written agreement signed by both the Seller
and Purchaser.
4.14 Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto, their heirs, assigns and successors in interest.
This Agreement is solely for the benefit of the Parties to this Agreement and no
right or cause of action shall accrue upon, to or for the benefit of any third party
not a party to this Agreement. Nothing in this Agreement expressed or implied is
intended or shall be construed to confer upon any person or corporation other
than the Parties to this Agreement any right, remedy or claim under or by reason
of this Agreement or any provisions or conditions of this Agreement, and all of the
{00220836.5 306-9905248)
provisions, representations, covenants and conditions contained in this
Agreement shall inure to the sole benefit of and shall be binding upon the Parties
to this Agreement and their respective representatives, successors and assigns.
4.15 Severability. In the event that any paragraph, section, term, provision or
portion of this Agreement is determined to be illegal, unenforceable, or otherwise
invalid, such paragraph, section, term, provision or portion of this Agreement
shall be given its nearest legal meaning or be stricken from and construed for all
purposes not to constitute a part of this Agreement, and the remaining portion of
this Agreement shall remain in full force and effect and shall, for all purposes,
constitute the entire agreement.
4.16 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and a complete set of which
taken together shall constitute one and the same agreement. The parties agree
and intend that a signature by facsimile machine or electronic transmission (i.e.
e-mail) shall bind the party so signing with the same effect as though the
signature was an original.
4.17 Entire Agreement. This Agreement constitutes the complete
understanding and entire agreement of the Seller and Purchaser with respect to
the matters addressed in this Agreement and there are no other agreements,
representations, or warranties other than as set forth in this Agreement. No
agreement or representation, unless set forth in this Agreement, shall bind any of
the Parties to this Agreement.
4.18. WAIVER OF BREACH. The failure of the Seller or Purchaser to enforce
any provisions of this Agreement shall not be construed to be a waiver of such or
any other provision, nor in any way to affect the validity of all or any part of this
Agreement, or the right of such party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to constitute
a waiver of any other or subsequent breach.
4.19. TIME AND TIME PERIODS. Time is of the essence in the performance of
each of the obligations contained in this Agreement. Unless otherwise
specifically provided in this Agreement, time periods shall be determined on
calendar days, including Saturdays, Sundays and legal holidays. Wherever any
time limit or date provided in this Agreement falls on a Saturday, Sunday or legal
holiday under the laws of the State of Florida, then that date is automatically
extended to the next day that is not a Saturday or Sunday or legal holiday. For
purposes of this Agreement, the term "Business Day" means any weekday that is
not a legal holiday under the laws of the State of Florida.
4.20. HEADINGS. The headings, captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience and do not define,
{00220836.5 306-9905248} 9
limit, construe or describe the scope or intent of such paragraphs of this
Agreement or in any way affect this Agreement.
4.21. CONSTRUCTION OF AGREEMENT. The Purchaser and Seller
acknowledge that they have had the benefit of independent counsel with regard
to this Agreement and that this Agreement has been prepared as a result of the
joint efforts of all Parties and their respective counsel. Accordingly, all Parties
agree that the provisions of this Agreement shall not be construed or interpreted
for or against any Party based upon authorship.
4.22. EXECUTION OF DOCUMENTS. Each Party covenants and agrees that it
will at any time and from time to time do such acts and execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
documents reasonably requested by the other Party necessary to carry out fully
and effectuate the transaction contemplated by this Agreement and to convey
good and insurable title for all conveyances subject to this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year above first written.
ATTEST: CITY OF BOYNTON
BEACH, a municipal
corporation of the State of
Florid
d By: ... g"-----Juditi-fitA
le, City Clerk Steven B. Grant,
Mayor
Appr• -d as • • m:
/ (SEAL)
Office of the Cit ;ttorney
STATE OF FLORIDA )
)ss
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this ci day of
ncAN-C,\r\ , 20 \' , by Steven B. Grant, as Mayor of the City of Boynton Beach,
Judith Pyle, City Clerk of the City of Boynton Beach, and '4j',cam-\ C_V\e2c 4 as
{002208365306-9905248)
Attorney for the City of Boynton Beach, who are personally known t�ma or have
produced as identification.
My Commission expires:3 .20 // Act,, ll1 ��'�� .„,, (ems
NotaryPublic, tate of Florida,
TSmm L. Stanzione
,,e':*z
TAMMY L STANZIONE
q. 4 �
- MY COMMISSION#FF213683
'!1,7?1,'•' EXPIRES March 25.2019
4C7 r 338-0'53 tbridallo;arySaPrinted Name of Notary Publicvice cwr
PARRY VILLAGE, INC., a Florida
corporation
- - t Name: b,i1 e t'��2,/,/9
Title: ��"' c51 ?/✓ T
ATTEST:
BY: /., i , ,i,, . -
Print N. e: e,J//..i- 5 7 5'r2 i rt,
Title: 'MT hi e5/D6N1 (CORPORATE SEAL)
STATE OF FLORIDA )
COUNTY OF iii,MY3641
The foregoing instrum nt yvas acknowledged before me this 1 I-I day of
(v f' , 20 %g , bye m!yetwo.'L , and as-90-69Dttsr and
of Parry Village, Inc., a Florida not-for-profit corporation, who is
personal) known to me or has produced a as identification, on
I behalf of Parry Village, Inc., and has executed the foregoing instrument on behalf of
Parry Village, Inc.
My commission Expires: �..••'�o.scMy''••,, AitheaP. I, / r / n
�•`s e"-,. Y��(IN
r� •,�� Notary Public, State of Florida
tea o I �
a.�s 0C ,f/6 Printed Name of Notary Public
-'Is,,fc S,gt-.•%
(00220836.5 306-99052481 11