HomeMy WebLinkAboutR-1979-325 I
RESOLUTION NO. 325
A RESOLUTION REVIEWING THE HISTORY OF THE
POSSIBLE LIEN CLAIMED OR ASSERTED AGAINST
A TRACT COMMONLY KNOWN AS THE PIRATES '
WORLD TRACT FOR WATER SERVICE AND SANITARY
SEWER SERVICE PREVIOUSLY FURNISHED BY CITY
OF DANIA TO RECREATION CORP. OF AMERICA
AND TO CHANNEL 51, INC. ; AND WAIVING AND
RELEASING ANY AND ALL LIEN RIGHTS , IF ANY,
ASSERTED AGAINST THE PIRATES ' WORLD TRACT
AS THE RESULT OF PAST DUE WATER SERVICE
AND SANITARY SEWER SERVICE FURNISHED TO
RECREATION CORP. OF AMERICA AND CHANNEL
51, INC. ; AND PROVIDING FOR OTHER RELIEF
INCIDENTAL TO THE SUBJECT; AND PROVIDING
THAT ALL RESOLUTIONS, OR PARTS OF RESOLU-
TIONS , IN CONFLICT HEREWITH ARE HEREBY
REPEALED TO THE EXTENT OF SUCH CONFLICT;
AND PROVIDING THAT THIS RESOLUTION SHALL
BE IN FORCE AND TAKE EFFECT IMMEDIATELY
UPON ITS PASSAGE AND ADOPTION .
WHEREAS, Fidelco Growth Investors , a business trust, is the
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record owner in fee simple of approximately 84 . 89 acres of lands
in Section 2, Township 51 South, Range 42 East, Broward County,
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Florida, with the said tract of land being commonly referred to
as the "Pirates ' World tract" ; and
WHEREAS, an exact description of the 84 . 89 acres consti-
tuting the Pirates ' World tract is attached hereto (on the blue
sheets) and made a part hereof by reference; and
WHEREAS , the Pirates ' World tract was formerly owned by a
corporation known as Recreation Corp. of America, with a part of
the Pirates ' World tract being leased in the past by Recreation
Corp. of America, as lessor, to Channel 51, Inc. , as lessee; and
WHEREAS, City of Dania previously furnished water service
and sanitary sewer service to both Recreation Corp. of America
and to Channel 51, Inc. ; and
WHEREAS , as to Recreation Corp. of America, the utility
account number assigned to the water service and sanitary sewer
service account by City of Dania was account no. 1 08 0106; and
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WHEREAS , with respect to Channel 51, Inc. the utility
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account number assigned to the water service and sanitary sewer
service account by City of Dania was account no. 1 08 0107; and
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WHEREAS , according to the records of the City of Dania, the
last water and sanitary sewer service furnished to Recreation Corp.
of America was service furnished on or about September 13, 1974,
with there being a final entry posted to the account showing a
credit in the amount of $10. 00 for the forfeiture of a deposit so
that the final principal due the city for water and sanitary sewer
service furnished to Recreation Corp. of America under account no.
1 08 0106 is $6 , 195. 79 , with interest due thereon at the rate of
10% per annum from September 13, 1974; and
WHEREAS, according to the records of the City of Dania, the
last water and sanitary sewer service furnished to Channel 51, Inc.
was service furnished on or about July 23 , 1975 , with there being
a final entry posted to the account showing a credit in the amount
of $10 .00 for the forfeiture of a deposit so that the final prin-
cipal due the city for water and sanitary sewer service furnished
to Channel 51, Inc. under account no. 1 08 0107 is $3,898 . 88, with
interest due theron at the rate of 10% per annum from July 23 ,
1975; and
WHEREAS, at or about the dates of the last furnishing of
�,. water and sanitary sewer service by City of Dania to Recreation
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Corp. of America and to Channel 51, Inc. , both Recreation Corp. of
America and Channel 51, Inc. became bankrupt; and
WHEREAS, the bankruptcy proceedings concerning Recreation
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Corp. of America were administered in the United States District
Court, Southern District of Florida, under bankruptcy proceedings
no. 75-16-BK-JE-H; and
WHEREAS, the bankruptcy proceedings concerning Channel 51,
Inc. were administered in the United States District Court, Southern
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District of Florida, under bankruptcy proceedings no. 75-748-BK-JLK-H;
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1 WHEREAS, the administration of the city government in approx-
imately 1975 evidently decided to act on its own initiative in re-
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presenting City of Dania in the respective bankruptcy proceedings
(instead of allowing the city attorney to act for the city in such
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matters) , as an examination of the official court file in the bank-
ruptcy proceedings concerning Recreation Corp. of America show
that the only proof of claim filed by City of Dania was nothing
more than a letter addressed to the court from Charles McNally,
Assistant City Manager, merely stating the amount due City of
Dania but not alleging that City of Dania asserted or claimed any
type of lien against the Pirates ' World tract, all with the result
that the court did nothing more in the bankruptcy proceedings con-
cerning Recreation Corp. of America other than recognizing that
the letter from said Charles McNally constituted an unsecured
claim; and
WHEREAS, an examination of the official court file in the
banktupcty proceedings concerning Channel 51, Inc. show a like
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waiver of security by the administrative staff of City of Dania
so that any claim of City of Dania as to Channel 51, Inc. was
treated as nothing more than a general and unsecured claim; and
WHEREAS, if the city had intended to claim or assert that
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it was a secured creditor in either of said bankruptcy proceedings,
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{ it had the affirmative duty of filing an adversary type of petition
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for the purpose of showing the secured status of its claim and for
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the further purpose of establishing the priority, validity and !
amount; and
WHEREAS, neither bankruptcy file shows that City of Dania
ever filed any type of petition to establish the priority, validity
or amount of any claimed lien as to either Recreation Corp. of
America or as to Channel 51, Inc. ; and
WHEREAS , as a matter of fact, if City of Dania ever held
any valid lien for the furnishing of water and sanitary sewer ser-
vice to either Recreation Corp. of America or to Channel 51, Inc. ,
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it abandoned such lien by recognized principles of bankruptcy law
by participating in both bankruptcy proceedings as an unsecured
creditor and by doing nothing to allege, or show, that it was a
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i lien creditor; and
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WHEREAS, an examination of the city' s files and records in-
dicate that the city attorney (Mr. Jack Milbery) first became in-
volved in the matter in approximately October, 1976, when he was
trying to locate whatever file the city had concerning the court
proceedings; and
WHEREAS, by interoffice memorandum dated October 18, 1976 ,
the city clerk wrote the city attorney a memorandum indicating
that she could locate almost no records, with her memorandum being
quoted in exact words as follows :
"Jack,
I am attaching a copy of the actual ledger
depicting a balance of $3, 898. 88 owned by Channel
51 for water and sewer.
I have checked around for other information
or correspondence on this to no avail. This was
handled by Mr. McNally" ;
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WHEREAS, the ordinances of City of Dania purport to give
some type of lien in favor of the city for unpaid water utility
charges and sanitary sewer service charges; and
WHEREAS, the validity of such ordinances has generally been
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denied, especially where a municipality has attempted to assert
its lien against a subsequent owner of the property or where a
city has attempted to decline utility service to a user at a new
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location if there is still a balance due from the same user for i
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the furnishing of utility service at an old location; and '
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WHEREAS, a 1968 annotation on the total subject appears as
19 ALR3d 1227 under the following heading :
"LIABILITY OF PREMISES, OR THEIR OWNER OR OCCUPANT,
FOR ELECTRICITY, GAS, OR WATER CHARGES , IRRESPECTIVE
OF WHO IS THE USER" ;
and
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WHEREAS, a somewhat related annotation on the same general
subject was published in 1976 in 73 ALR3d 1292 under the follow- '
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ing heading:
"RIGHT OF PUBLIC UTILITY TO DENY SERVICE AT ONE
ADDRESS BECAUSE OF FAILURE TO PAY FOR PAST SER-
VICE RENDERED AT ANOTHER" ;
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and
WHEREAS , the said annotations show that it is the accepted
principle that any ordinance attempting to create a "lien" for
utility service furnished to one user at a particular site cannot
be enforced against a subsequent user (or owner) at the same site;
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and
WHEREAS, in view of the foregoing annotations, City of
Dania has never had any right to assert a claim or lien against
the property owned by Fidelco Growth Investors because of unpaid
utility services furnished to a former owner, Recreation Corp. of
America, and to a former lessee, Channel 51, Inc. ; and
WHEREAS, even if the liens of the city were valid, the
lien rights of the city were forfeited and waived by the volun-
tary participation of the city in the aforesaid bankruptcy proceed-
ings as an unsecured creditor; and
WHEREAS , further evidence of the fact that no lien as to
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the real property now exists is evidenced by the certain Bank-
ruptcy Trustee ' s Deed dated January 28, 1976 , from Herbert S .
Freehling, as Trustee in bankruptcy of Recreation Corp. of America,
a bankrupt, said deed being recorded March 17, 1976 , in Official
�*- Records Book 6523 , page 103, Public Records of Broward County,
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Florida, under administrator' s registry no. 76-49280, where the
Pirates ' World tract (more particularly described on the blue
sheets attached hereto) was sold (by order of court) free and
clear of all liens whatsoever; and
WHEREAS, as of August 1, 1979 , the approximate amount
claimed by City of Dania from Recreation Corporation of America
is $9 ,293. 69 , itemized as follows :
Principal amount due for water
and sanitary sewer service as of
September 13, 1974 $6 ,195 . 79
Accrued interest from September 13,
1974 to August 1 , 1979 , at 10% per
annum 3,097. 90
Total amount which City of Dania
claims is due as of August 1, 1979 $9 ,293. 69 ;
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and
WHEREAS, as of August 1, 1979, the approximate amount
claimed by City of Dania from Channel 51, Inc. is $5, 458. 40 ,
itemized as follows :
Principal amount due for water
and sanitary sewer service as of
July 23, 1975 $3, 898. 88
Accrued interest from July 23,
1975 to August 1, 1979 , at 10%
per annum 1, 559.52
Total amount which City of Dania
claims is due as of August 1, 1979 $5, 458. 40;
and
WHEREAS, the city attorney has advised the city commission
that he has investigated and researched the matter and that the
city has no lawful right to claim or assert any type of lien against
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the Pirates ' World tract in the approximate sum of $9 , 293. 69 for
water and sanitary sewer service furnished to Recreation Corp.1 .s,.
of America under City of Dania account no. 1 08 0106 ; and
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WHEREAS, the city attorney has further advised the city com-
mission that City of Dania has no right to claim or assert any type j
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of lien against the Pirates ' World tract in the approximate sum
,,. of $5, 458. 40 for water and sanitary sewer service furnished to
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Channel 51, Inc. under City of Dania account no. 1 08 0107; and
WHEREAS, City of Dania is willing to accept the advice and
recommendations of the city attorney in the matter,
NOW, THERFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA, FLORIDA:
Section 1, That with respect to the claimed lien or claimed
interest which City of Dania asserts under its ordinances against
the Pirates ' World tract (described on the blue sheets attached
hereto) in the approximate sum of $9,293. 69 (representing unpaid
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principal of $6 ,195. 79 plus approximate accrued interest to date
of $3,097. 90) City of Dania does hereby absolutely and irrevocably
! acknowledge and agree that, as a matter of fact, it has no lien
whatsoever against the Pirates ' World tract for any sums due I�
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City of Dania from Recreation Corp. of America under City of Dania
account no. 1 08 0106 and, by this resolution, City of Dania does
hereby release and satisfy whatever lien it claims and does hereby
discharge the Pirates ' World tract for any and all liens claimed
or asserted by City of Dania as the result of the furnishing of
water and sanitary sewer service to the Pirates ' World tract under
account no. 1 08 0106 formerly maintained by City of Dania with
Recreation Corp. of America regarding the furnishing of water and
sanitary sewer service to the Pirates ' world tract.
Section 2 . That with respect to the claimed lien or claimed
interest which City of Dania asserts under its ordinances against
the Pirates ' World tract (described on the blue sheets attached
hereto) in the approximate sum of $5,458 . 40 (representing unpaid
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principal of $3 , 898. 88 plus approximate accrued interest to date
of $1,559 . 52) City of Dania does hereby absolutely and irrevocably
j acknowledge and agree that, as a matter of fact, it has no lien
whatsoever against the Pirates ' World tract for any sums due City
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of Dania from Channel 51, Inc. under City of Dania account no.
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01 08 0107 and, by this resolution, City of Dania does hereby re-
lease and satisfy whatever lien it claims and does hereby discharge
the Pirates ' World tract for any and all liens claimed or asserted
by City of Dania as the result of the furnishing of water and san-
itary sewer service to the Pirates ' World tract under account no.
1 08 0107 formerly maintained by City of Dania with Channel 51,
Inc. regarding the furnishing of water anO sanitary sewer service
to the Pirates' World tract.
Section 3 . Specifically, and without limitation on the
foregoing, City of Dania does hereby acknowledge and agree that
Fidelco Growth Investors , as the successive owner of the Pirates '
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World tract, is not indebted in any fashion to City of Dania for
past water and sanitary sewer services furnished to Recreation
Corp. of America and to Channel 51, Inc. , both of which were ad-
judicated to be bankrupts . Further, City of Dania releases Fidelco
Growth Investors and the Pirates ' World tract from any and all
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rights, claims, liens or demands which City of Dania may have against
Recreation Corp. of America and Channel 51, Inc. , both of which are
bankrupts, for past due water and sanitary sewer service furnished
to the Pirates' World tract.
Section 4. That the administrative and executive staff of
City of Dania is hereby absolutely and irrevocably instructed and
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directed not to attempt to collect any past due amounts (incurred
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by either Recreation Corp. of America or Channel 51, Inc. ) from
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Fidelco Growth Investors at such time as Fidelco Growth Investors
may apply for the furnishing of either water or sanitary sewer ser-
vice to the Pirates ' World tract. However, Fidelco Growth Investors
shall always have the obligation of paying whatever charges and
assessments which are currently due under any applicable ordinances
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or agreements for the furnishing of water and sanitary sewer ser-
vice to any new development proposed by a developer. That is ,
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while Fidelco Growth Investors shall never have any obligation to
pay any past due amount from Recreation Corp. of America or from
Channel 51, Inc. for water and sanitary sewer service, it shall
always have the obligation of paying for water service and sanitary
sewer service furnished directly to Fidelco Growth Investors , its
tenants , lessees , successors or assigns .
Section 5. That all resolutions, or parts of resolutions,
in conflict herewith are hereby repealed to the extent of such
conflict.
Section 6. That this resolution shall be in force and take
effect immediately upon its passage and adoption.
PASSED and ADOPTED this day of a-ZG 1979 .
Mayor-Commissioner
Attest:
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'City Clerk-Auditor
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Hunter-floss Company
Job No. 77-219B
i. . _GEES JENSON ev;urru,.,u<mux-i, By: MCB Chk: CAS
---- ----- — November 16, 1978
DESCRIPTION
OVERALL SITE OF PIRATES WORLD
In Section 2, Township 51 South, Range 42 East,
Cities of Dania and Hollywood
Broward County, Florida
The Southeast One-Quarter of the Northwest One-Quarter of the Southwest
One-Quarter; the Northeast One-Quarter of the Northwest One-Quarter of
the Southwest One-Quarter; the Southwest One-Quarter of the Northwest
One-Quarter of the Southwest One-Quarter, LESS the West 35 feet thereof �� F
for Southeast 5th Avenue Right-of-Way; the Southwest One-Quarter of the
Northeast One-Quarter of the Southwest One-Quarter; the West One-Half t�
of the Southeast One-Quarter of the Southwest One-Quarter, LESS the South
50 feet thereof for Sheridan Street Right-of-Way; the Northeast One-
Quarter of the Southwest One-Quarter of the Southwest One-quarter; the
Northwest One-Quarter of the Southwest One-Quarter of the Southwest
One-Quarter, LESS the• 41est 35 feet thereof for Southeast 5th Avenue
Right-of-!day; the East One-Half of the Southeast One-Quarter of the
Southwest One-Quarter of the Southwest One-Quarter, LESS the South 50
feet thereof for Sheridan Street Right-of-Way, and LESS all that portion
of land described in Official Records Book 3191, Page 588 of the Public
Records Of Broward County, Florida, also LESS that portion of land
describe, in Official Rncerds Book 3284, pale 990, of the Public Records
of Broward County, Florida. Said Lvids aLl being in Section 2, Town-
ship 51 South,
r^ �nv,e i_^ East , 3-c-;ird County, Florida, being Here
parCicul;.:'l : ilencribcd as foIIC)ws:
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Hunter-Floss Company
Job No. 77-219B
•,'o GEE & JLNSON tua.r�us��xnuu�a n.�.ax+.i�r. By: NGB Cltk: CAS
- - — — — — - November 16, 1978
Commencing at the Southwest Corner of said Section 2 ;
thence ,forth 870 51' 45" East (for convenience the South Line of said
Section 2 is assumed to bear North 87' 51' 45" East and all other bearings
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shown herein are relative thereto) along the South Line of said Section 2,
a distance of 1001.69 feet;
thence North 02° 05' 22" !Jest, a distance of 50.00 feet to the North
I Right-of-Way Line of Sheridan Street and the POINT OF BEGINNING of
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this description; _
thence continue North 02° 05' 22" [Jest, a distance of 631.67 feet; j R
j' thence South 870 41' 37" !Jest, a distance of 965.80 feet;
thence North 02' 00' 51" West along the East Right-of-Way Line of
Southeast 5th Avenue, being parallel with and 35 feet east of, the
` �• { West Line of said Section 2, a distance of 1357.65 feet;
thence North 87' 21' 16" East, a distance of 631.04 feet;
j thence North 02° 03' 52" West, a distance of 680.69 feet to the North
Line of the Southwest One-Quarter of said Section 2 ;
t thence North SY 11' 04" East along said North Line, a distance of
l 665.47 feet;
thence South 020 06' 52" East, a distance of 682.66 feet;
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$� thence North 870 21' 16" East , a distance of 239.50 feet to the Fast
Corporate Li`.11.t5 of Drinia, being the West Corporate Limits of Hollywood;
tbd thanco continuo North 87' 21' 16" [gist , a distance of 401.54 feet ;
thonco Quth UP 09' A" li IL, alone; the Nest: Line of a parcel of lard
d„_cr.ihod in U eel i Acrord 'hook 3191, Page 588, Bra and County 0cords ,
:i di';t .a;tn I!- GO). SI tc"t ;
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Hunter-Moss Company
Job No. 77-129B
s [ I� 11�CC `` By: MGB Chk: CAS
(`.If�r GEE � J`�'11J��11 fwdN}X}�\N(Illlf('Ki'L\\NX\I�f.
--- ----- November 16, 1978
thence North 870 21' .16" East, a distance of 25.00 feet;
thence South 020 09' 51" East, a distance of 50.03 feet;
thence South 87' 21' 16" West, a distance of 40.00 feet;
' thence South 02' 09' 51" East along the West Line of a parcel of land
i described in the said above Official Record, a distance of 1344.04
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feet to a point on said North Right-of-Way Line of Sheridan Street;
thence South 87° 51' 45" West, a distance of 388.2.6 feet to the West
? Line of Hollywood, being the East Line of Dania;
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thence continue South 87' 51' 45" West, a distance of 573.36 feet j
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to the POINT Or BEGINNING.
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Containing 84.39 acres, more or less. `
SUBJECT. to existing Rights-of-Way, Easements, Restrictions and Reservations
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of Record, if any.
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