SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
Date of Report (Date of earliest event reported) April 30, 1996
BIRMINGHAM UTILITIES, INC.
(Exact name of registrant as specified in its charter)
Connecticut 0-6028 06-0878647
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
230 BEAVER STREET, ANSONIA, CT 06401
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (860) 735-1888
(Former name or former address, if changed since last report.)
Item 5. Other Events.
On April 30, 1996, the Registrant entered into Purchase and
Sale Agreement with the City of Ansonia, Connecticut (the "City")
for the sale by the Registrant to the City of approximately 59.24
acres of unimproved real property for the purchase price of
$1,041,350.
The sale of the property is conditioned upon the Registrant
obtaining approval by the Connecticut Department of Public Utility
Control ("DPUC") and the City obtaining approval of its Board of
Alderman. It is also conditioned on the City receiving by May 30,
1996 final approval of a partial funding grant from the State of
Connecticut.
The City's Board of Aldermen is scheduled to consider the
proposed purchase at its meeting on May 7, 1996. By referendum
earlier in April, the City's voters approved a comprehensive
school building and renovation project which included, in concept,
the construction of a new high school on the property in question.
The Registrant may not file its application with the DPUC
until June 7, 1996, and by law the DPUC may take up to 150 days
in which to issue its Decision. Although no assurances can be
made, the Registrant knows of no reason why the DPUC should not
approve the proposed sale.
Item 7. Financial Statements and Exhibits
(c) Exhibits
(10) Material Contracts. Purchase and Sale Agreement by and
between Birmingham Utilities, Inc. and the City of Ansonia dated as
of April 30, 1996.
(99) Press release dated April 30, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
BIRMINGHAM UTILITIES, INC.
(Registrant)
Date May 6, 1996 By /s/ Aldore J. Rivers
ALDORE J. RIVERS, PRESIDENT
(Signature)
Exhibit 10
PURCHASE AND SALE AGREEMENT
AGREEMENT, made as of the 30th day of April, 1996, by and
between BIRMINGHAM UTILITIES, INC. a Connecticut corporation,
having its principal place of business in Ansonia, Connecticut
(hereinafter referred to as the "Seller"); and THE CITY OF ANSONIA,
a municipal corporation existing within the County of New Haven and
State of Connecticut, (hereinafter referred to as the "Buyer");
WITNESSETH:
In consideration of the Purchase Price described in Paragraph
1(a) hereof, and subject to the further terms and conditions set
forth herein, the Seller hereby agrees to sell and convey, and the
Buyer hereby agrees to purchase, the approximately 59.24 acres of
unimproved real property shown on a certain map entitled,
"Birmingham Utilities Inc. - Sentinel Hill Property, Ansonia,
Connecticut" dated April 29, 1996, a copy of which is attached
hereto as Schedule A and made a part hereof (hereinafter referred
to as the "Premises"). Title to the Premises will be conveyed free
and clear of all encumbrances, liens, or exceptions to title other
than those set forth in Schedule B or in Paragraph 7 hereof.
1. CONSIDERATION
The Purchase Price for the Premises shall be $1,041,350.00,
which the Buyer agrees to pay in cash or by certified check or bank
draft on the date of the closing of title and upon delivery of the
deed as hereinafter provided.
2. DEED
The deed of conveyance to the Premises shall be in the form of
a full covenant and Warranty Deed in the usual Connecticut form,
which shall be duly executed, acknowledged and delivered,
all at the Seller's expense, conveying the fee simple title in and
to the Premises to the Buyer, free and clear of all encumbrances,
liens and exceptions to title other than those set forth in
Schedule B hereof or in Paragraph 7 hereof. The Seller shall pay
any conveyance tax due in connection with this transaction imposed
on Seller by applicable law. The Seller agrees to execute, at the
time of closing, an affidavit regarding the non-existence of
mechanic's liens, materialmen's liens or rights of tenants upon the
Premises and other conditions of or on the Premises required by a
licensed title insurance company necessary in order to issue a
"clean" title insurance policy.
3. APPORTIONMENTS
The taxes and assessments of the City in which the Premises
are situated will be apportioned, in accord with local custom, as
of the date of the closing of title. Should any tax, assessment,
or rate be undetermined on the date of the closing of title, the
last determined tax, assessment, or rate shall be used for the
purpose of the apportionment.
4. CONDITION OF PREMISES
The Buyer further agrees with and represents to the Seller
that it has examined the Premises, that it is fully satisfied with
the physical condition thereof, and that neither the Seller nor any
representative of the Seller has made any representation or promise
upon which the Buyer has relied concerning the physical condition
of the Premises or of any property covered by this Agreement,
except as herein may be expressly set forth.
5. TITLE
(a) It is further understood and agreed that if, on the date
herein set for the closing of title, the Seller shall be unable to
convey the title to the Premises to the Buyer free and clear of
encumbrances, liens or exceptions to title other than those set
forth in Schedule B hereof or in Paragraph 7 hereof, then, and in
that event, the Seller shall have a further period of thirty days
within which to perfect title. If, at the end of said period, the
Seller is still unable to convey title to the Premises free and
clear of all encumbrances, liens or, exceptions to title except as
aforesaid, the Buyer may elect to accept such title as the Seller
can convey, upon the payment of the aforesaid purchase price, or
may reject the deed conveying such title on that ground. Upon such
rejection, all sums paid on account hereof, together with interest
thereon, and together with any expenses actually incurred by the
Buyer for the examination of the title to the Premises shall be
repaid by the Seller to the Buyer. The Buyer agrees to obtain a
title search of the Premises within thirty (30) days of the
execution hereof. The Buyer shall notify the Seller within said
thirty (30) day period whether the title is clear according to the
Standards of Title of the Connecticut Bar Association, and conforms
to the terms hereof. In the event that said title is clear as
aforesaid as of said date, and from and after said date the title
becomes encumbered or otherwise clouded such that the Seller is
unable to convey clear title at closing as required hereunder, in
addition to the Buyer's expenses for examination of title, the
Seller shall reimburse the Buyer an amount equal to any expenses
actually incurred by the Buyer on account of legal fees, surveying
and engineering expenses, inspection expenses, and any bank charges
and fees. Upon receipt of such payments by the Buyer, this
Agreement shall terminate and become null and void and the parties
hereto shall be released and discharged of all further claims and
obligations, each to the other, hereunder. Nothing shall
constitute an encumbrance, lien or exception to title for the
purposes of this Agreement if the Standards of Title of the
Connecticut Bar Association recommends that no corrective or
curative action is necessary in circumstances substantially similar
to those presented by such encumbrances, liens, or exception to
title.
(b) The Buyer shall give written notice to the Seller's
attorney, not less than ten (10) business days prior to the Closing
Date, of any encumbrances or defects which the Buyer claims affect
title other than those set forth in this Agreement.
6. INSURANCE
Throughout the period between the date of this Agreement and
the date of the closing of title, the Seller shall maintain
existing liability insurance on the Premises.
7. ENCUMBRANCES
In addition to the exceptions to title in Schedule B, the
Premises will be conveyed subject to:
(a) Any restrictions or limitations imposed or to be imposed
by governmental authority, including the zoning and planning rules
and regulations of the City, and region or district, if any, in
which the Premises are situated but not violations of the same;
(b) Taxes of the City in which the Premises are situated
which become due and payable after the date of delivery of the
Deed, which taxes, if any, the Buyer will assume and agree to pay
as part of the consideration for the deed;
(c) Public improvement assessments, and/or any installments
thereof, which assessments and/or installments become due and
payable after the date of the delivery of the deed, which
assessments and/or installments, if any, the Buyer will assume and
agree to pay as part of the consideration for the deed; and
(d) The following restriction, which shall be included in the
Warranty Deed: "The Grantee covenants and agrees that at least
fifty percent (50%) of the Premises conveyed hereunder shall be
perpetually used for 'open space or recreational purposes' as said
terms are defined in subsection (f) of Section 16-50d of the
Connecticut General Statutes."
8. ENTIRE AGREEMENT
It is understood and agreed that this written Agreement
(including Schedule B and any other schedules or any riders
referred to in the body of this Agreement and attached hereto)
constitutes the entire agreement between the parties hereto, and
that no oral statements or promises, and no understandings not
embodied in this writing, shall be valid or binding.
9. CLOSING
It is agreed by the parties hereto that the Closing of Title
(hereinafter referred to as the "Closing") shall take place at the
City Hall in the City of Ansonia, Connecticut on or before February
28, 1997 (the "Closing Date"), at a time to be determined, or such
other place and date as may be mutually agreed upon by the parties
hereto, at which time the deed shall be delivered upon receipt of
the Purchase Price provided, however, that the above date is
designed to allow the Seller to meet the Seller's contingencies
described in Paragraph 12 hereof, and the parties agree that the
closing shall take place promptly but, in any event within 30 days
of the Seller obtaining final approval of the DPUC pursuant to
Paragraph 12(b) hereof and the expiration or waiver of the third
party statutory purchase rights described in Paragraph 12(a)
hereof, should such approval and such expiration or waiver occur
prior to the times contemplated in said Paragraph 12 hereof.
10. BROKER
The parties hereto recognize that there was no agent or broker
who negotiated the sale of the Premises. This Agreement is
consummated by the Seller in reliance on the representation of the
Buyer that no broker or agent brought the Premises to the Buyer's
attention or was, in any way, a procuring cause of this sale and
purchase. The Seller represents to the Buyer that no broker or
agent represented the Seller in the sale of the Premises to the
Buyer or has any exclusive sale or exclusive agency listing on the
Premises, and the Seller hereby agrees to indemnify and hold
harmless the Buyer against the claim of any broker or agent for a
commission due by reason of this sale where it is judicially
determined that said broker or agent had such a sale or agency
listing applicable to such sale of the Premises. The Buyer hereby
agrees to indemnify and hold harmless the Seller against the claim
of any broker or agent for a commission due by reason of this sale,
where it is judicially determined that said broker or agent called
the Premises to the Buyer's attention or interested Buyer therein.
Any indemnity contemplated within this Section 10 shall include
without limitation, all reasonable costs of defending any such
claim, including reasonable attorney's fees. The provisions of
this paragraph shall survive the delivery of the deed hereunder.
11. DEFAULT
If the Buyer shall fail to comply with any term of this
Agreement by the Closing Date, the Seller shall reimburse the
Seller its costs and expenses incurred in connection with the
transactions contemplated in this Purchase and Sale Agreement,
including without limitation its costs involved in obtaining the
regulatory approvals required therefor, it being agreed that
neither party desires to incur the additional expense, or to
require the other party to incur the additional expense, to prove
the precise amount of such expenses in the event of such a failure
to comply, and it being further agreed that such expenses will be
$60,000.00 (the "Cost Reimbursement Amount"), whereupon all other
rights and remedies of the Seller hereunder shall cease and be at
an end. In this case, the Buyer shall immediately return its copy
of this Agreement to the Seller for cancellation. If this
Agreement shall have been recorded by either party hereto, the
Buyer shall, at its expense, deliver to the Seller a Quit Claim
Deed releasing any and all interest hereunder. If the Buyer shall
fail to deliver such a deed to the Seller within thirty (30) days
after the date set for closing, the Seller shall have the right to
commence an action to procure an adjudication of the termination of
the Buyer's rights hereunder in which case the Buyer shall pay the
expense of searching the title for the purpose of such action,
together with all reasonable costs and a reasonable attorney's fee.
If the Seller shall fail to comply with any term of this Agreement,
the Buyer shall have all rights available at law or in equity.
12. SELLER CONTINGENCIES
(a) Purchase Rights. The Premises are subject to statutory
option rights in favor of the State of Connecticut, certain water
companies, and certain non-profit organizations as contemplated in
the applicable provisions of the Connecticut General Statutes
(Sections 16-50c, 16-50d, and 25-33l). If any of said rights are
exercised, Seller shall return to Buyer all sums paid hereunder,
together with interest thereon, within seven (7) days after such
exercise and, upon such return of said sums, this Agreement and the
obligations of the parties hereunder shall terminate and come to an
end.
(b) DPUC Approval. This Agreement is contingent upon the
Seller obtaining final approval from the DPUC (which approval shall
become "final" only upon the expiration of the applicable appeal
periods without any appeal having been filed or served), for the
sale of the Premises to the Buyer pursuant to Section 16-43 of the
Connecticut General Statutes, and upon final approval by the DPUC,
as defined above, of a ratemaking accounting treatment for the net
gain from such sale reasonably satisfactory to the Seller. Such
satisfaction shall be deemed to have been obtained if the Seller
does not notify the Buyer to the contrary in writing within five
(5) business days from such final approval. Seller agrees to
submit this Agreement to the DPUC for approval within 35 days after
publishing notice of its intention to sell in accordance with
Section 16-50c(b)(2) of the Connecticut General Statutes.
If the Seller shall not have received final approvals (as
described in Subparagraph (b) above) by December 23, 1996, or if
all purchase rights (as described in Subparagraph (a) above) shall
not have expired or been waived in accordance with their statutory
terms by February 14, 1997, Seller shall return to Buyer all sums
paid hereunder, together with interest thereon, and, upon such
payment, this Agreement shall terminate and be of no further force
or effect, and the parties shall be relieved of all liability each
to the other, hereunder.
13. BUYER CONTINGENCY
(a) This Agreement is contingent upon the approval of the
Buyer's Board of Aldermen. The Buyer agrees to submit this
Agreement to its Board of Aldermen for approval at a duly called
and noticed meeting thereof not later than May 7, 1996. If the
Buyer shall not have received approval of this Agreement by its
Board of Aldermen by June 11, 1996, this Agreement shall terminate
and be of no further force or effect, and the parties shall be
relieved of all liability each to the other hereunder.
(b) This Agreement is contingent upon receipt by the Buyer of
a commitment by the State of Connecticut Department of Education
(the "State") that Buyer will receive sufficient funding to finance
the purchase of the Premises. If the Buyer has not received a
written commitment from the State that it will receive sufficient
funding to purchase the Premises by May 30, 1996 (the "Termination
Date"), the Buyer may terminate this Agreement by providing the
Seller or the Seller's attorney with written notice of the Buyer's
inability to satisfy such contingency (the "Termination Notice").
Should the Buyer be unable to satisfy such contingency, the Buyer,
at its sole election, may (i) proceed with the consummation of this
Agreement without regard to the failure of the contingency, or (ii)
terminate this Agreement by delivering the Termination Notice as
provided above. If the Buyer delivers the Termination Notice to
the Seller or the Seller's attorney on or before the Termination
Date, all rights and liabilities of the parties hereto by reason of
this Agreement shall be deemed at an end; if the Termination Notice
is not so delivered on or before the Termination Date, the Buyer
shall be deemed to have elected to proceed with the consummation of
this Agreement in accordance with the provisions of clause (i)
above.
14. EFFECT AND ASSIGNMENT
The covenants and agreements herein are to be binding upon and
inure to the benefit of the parties hereto, their respective heirs,
representatives, successors and assigns and shall survive the
delivery of the deed hereunder. No assignment of this Agreement by
the Buyer shall be valid unless the Seller assents thereto in
writing. This Agreement constitutes the entire agreement between
the parties and may not be changed except by a contract in writing
signed by the party or parties against which enforcement of any
waiver, change, modification, extension, estoppel, or discharge is
sought. Whenever used, the singular number shall include the
plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
15. NO VIOLATIONS
The Seller represents that to the best of its knowledge, at
the time of the closing of title, there shall exist no violations
of government (including environmental and zoning and planning)
rules, regulations or limitations, unless same have become legally
non-conforming, and no violations of any restrictive covenant,
agreement or condition subject to which the title is to be conveyed
in accord with the terms hereof.
16. ENVIRONMENTAL TESTING
The Buyer shall have the right to have a Phase I environmental
site assessment of the Premises conducted during a forty-five (45)
day period commencing on the date of this Agreement. If the Buyer
is reasonably dissatisfied with the condition of the Premises as
indicated by such site assessment disclosing any risk of
environmental contamination of the Premises, the Buyer may, by
written notice to the Seller or the Seller's attorney describing
such risk of environmental contamination and reasonable
dissatisfaction and enclosing a copy of such Phase I site
assessment, terminate this Agreement. If the Buyer terminates this
Agreement as provided in this Section 16, all rights and
liabilities of the parties hereto by reason of this Agreement shall
be deemed at an end. Unless the Buyer shall have given such
written notice to the Seller or the Seller's attorney of the
Buyer's termination of this Agreement on or before the end of the
aforesaid forty-five (45) day period, the Buyer shall have no
further right to terminate this Agreement pursuant to this Section
16. The cost of such testing shall be paid by the Buyer.
17. OWNERSHIP
Seller represents that at the signing of this Contract, the
Seller is the record owner in fee simple of the Premises being
conveyed herein and is not under any incapacity, other than the
statutory provisions set forth in Section 12 hereof, which prevents
it from entering into this Agreement or complying with the terms
thereof.
18. ACCESS
Upon and after the occurrence of both of the Buyer
contingencies set forth in Sections 13(a) and 13(b) hereof, Buyer
shall have the right to enter upon the Premises for the purpose of
inspecting and surveying the same, digging test holes thereon and
similar and related purposes, provided however, that at any time
after the execution hereof, Buyer and its agents shall have the
right to enter upon the Premises for the purpose of (a) conducting
the Phase I environmental site assessment contemplated in Section
16 hereof or (b) surveying. Buyer agrees to restore the Premises
to substantially its present condition after entering thereon, and
agrees to indemnify the Seller and hold it harmless from any and
all claims of any and every nature and description arising from or
out of the entrance onto the Premises by the Buyer, its agents,
servants and/or employees. Buyer agrees to furnish Seller with
copies of all test results and surveys made, without cost to
Seller, upon request.
19. NOTICES
Any notice provided for by this Agreement and any other
notice or communication which either party may wish to send to the
other (collectively "Notices") shall be in writing and given by
personal delivery or sent by United States registered or certified
mail, return receipt requested, in a properly sealed envelope,
postage-prepaid, addressed to the party for which such notice is
intended, at such party's address set forth below or at any other
address provided in writing by such party to the other by notice
complying with this Section 19.:
If to Buyer, to:
City of Ansonia
253 Main Street
Ansonia, Connecticut 06401
Attention: Director of Administrative Affairs
With a copy to:
Lisa M. Boyle, Esquire
Cummings & Lockwood
185 Asylum Street, CityPlace I
Hartford, Connecticut 06103
If to the Seller, to:
Birmingham Utilities, Inc.
236 Beaver Street
P.O. Box 426
Ansonia, Connecticut 06401
Attention: Betsy Henley-Cohn
With a copy to:
Robert J. Metzler, II, Esquire
Tyler Cooper and Alcorn
185 Asylum Street, CityPlace I
Hartford, Connecticut 06103
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals on the day(s) and in the year hereinbefore
indicated.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
As to Seller:
BIRMINGHAM UTILITIES, INC.
ID# 06-0878647
/s/ Robert J. Metzler, II By/s/ Betsy Henley-Cohn
Robert J. Metzler, II Betsy Henley-Cohn
Its Chairwoman
Duly Authorized
/s/ William C. Nimmons
William C. Nimmons
CITY OF ANSONIA
/s/ Robert J. Metzler, II By/s/ Nancy Valentine
Robert J. Metzler, II Nancy Valentine
Its Mayor
/s/ William C. Nimmons Duly Authorized
William C. Nimmons
STATE OF CONNECTICUT)
) ss: Ansonia April 30, 1996
COUNTY OF NEW HAVEN )
Personally appeared Betsy Henley-Cohn, Chairwoman of
BIRMINGHAM UTILITIES, INC., signer and sealer of the foregoing
instruments, and acknowledged the same to be her freed act and deed
and the free act and deed of said BIRMINGHAM UTILITIES, INC.,
before me.
/s/ Robert J. Metzler, II
Commissioner of the Superior Court
STATE OF CONNECTICUT)
) ss: Ansonia April 30, 1996
COUNTY OF NEW HAVEN )
Personally appeared Nancy Valentine, Mayor of the CITY OF
ANSONIA, signer and sealer of the foregoing instruments, and
acknowledged the same to be her freed act and deed and the free act
and deed of said CITY OF ANSONIA, before me.
/s/ Robert J. Metzler, II
Commissioner of the Superior Court
STATE OF CONNECTICUT)
)ss: Ansonia April 30, 1996
COUNTY OF NEW HAVEN )
Personally appeared Betsy Henley-Cohn, Chairwoman of BIRMINGHAM
UTILITIES, INC., signer and sealer of the foregoing instruments,
and acknowledged the same to be her freed act and deed and the free
act and deed of said BIRMINGHAM UTILITIES, INC., before me.
/s/ Robert J. Metzler, II
Commissioner of the Superior Court
Exhibit 99
FOR IMMEDIATE RELEASE
APRIL 30, 1996
Contact Nancy Valentine,
Mayor, City of Ansonia
phone (203) 736-5900
and
Ruth Connors,
Superindendant of Schools,
City of Ansonia
phone (203) 736-5095
and
Betsy Henley-Cohn,
Chairwoman, Birmingham Utilities, Inc.
(203) 735-1888
The City of Ansonia and Birmingham Utilities, Inc. announced
today that they have reached agreement for the sale by the Company
to the City of Ansonia of the Ansonia portion of the Company's
Sentinel Hill Property to be used for construction of the City's
proposed new high school and for open space and recreational
purposes. The total purchase price agreed to is $1,041,350, which
amounts to $17,650 per acre for the approximately 59 acres in the
parcel and is the same price previously used by the City in its
funding application to the State of Connecticut.
The agreement is subject to approval by the City's Board of
Alderman and by the Connecticut Department of Public Utility
Control. The City plans to present the agreement to the Board
of Aldermen at its May 7, 1996 meeting. The Company is already
preparing its application to the DPUC. The DPUC may by statute
take up to 150 days to decide the Company's application.
Mayor Nancy Valentine stated that, "For the first time
in our history, we are looking to create a conservation land
trust for the preservation of this magnificent parcel.
At the same time, we will create educational and recreational
areas for our community."
Superindendant of Schools Ruth Connors commented that,
"The signing of this Agreement by the City of Ansonia is a
significant step toward a realization of our dreams for
state-of-the-art schools in Ansonia. We are delighted that we
have been able to work cooperatively with Birmingham Utilities
in acquiring this parcel."
Betsy Henley-Cohn, the Chairwoman of the Company's Board
of Directors said, "We are pleased that Ansonia and its leaders
have demonstrated the vision and commitment to education and
open space that this transaction represents. For the past ten
years, since our Company initiated its plans to sell its property
no longer needed for water supply purposes, we have tried to work
with our communities' elected officials so that the property could
be put to the most beneficial uses for all involved. Today's
agreement is a wonderful example of how that process can work."
