20130205System Transfer Agreement.pdf

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WATER SYSTEM TRANSFER AGREEMENT
11H3 1E85 AMII:35
THIS AGREEMENT made this 0 day of Ft1,7,4'M9' ,2013, betwee , Water Corporation, an Idaho corporation, hereinafter referred to as "Brian \M8j JM
address for notice is 5120 Overland Road, Suite C #228, Boise, Idaho 83705,
and Brian Subdivision Water Users Association, Inc., an Idaho non-profit
corporation, hereinafter referred to as the "Association", whose address for notice is
5885 Eastwood Place, Boise, Idaho 83716.
WHEREAS, Brian Water is the owner and operator of a private water system and
related real. property (the "Real Property") located in Ada County,, Idaho, which was
initially established to. serve the Brian Subdivision development; and
WHEREA& the aforementioned water system: is in need of retairs and
contamination remediation which require significant funds; and
WHEREAS,. funds are generally made available through grants and governmental
subsidies to aid the maintenance and remediation of cooperatively or member owned
water systems; and
WHEREAS,, the Association is a not for profit corporation owned and operated by
the consumers who receive water from the system heretofore operated by Brian Water;
and. . . ..
WHEREAS, Brian Water desires to transfer the water system, together with all of
its necessary components and rights a& more particularly described below, to the
Association and the Association desires to take delivery of and acquire said water system,
as defined below, and to own, operate and maintain said system from and. after the
effective date of this transfer.
NOW, THEREFORE, in consideration of the mutual promises contained herein, it
is agreed as fellows:
1.Transfer. Brian Water agrees to transfer to the Association all its rights; title
and interest in and to the community water system originally constructed to serve the
development commonly, known as Brian Subdivision inAda County, Idaho, as the same
has been expanded, including any water, rights, franchise rights, operating permits or
registrations held by Brian: Water together with all necessary easements, rights,
equipment, docum€ntation and installations appurtenant thereto, including but not by way
of limitation, the water mains, the valves, the hydrants, the water storage facilities, the
water meters, the service lines'between the mains and the water meters and operation and
maintenance manuals and all Real Property, all Iofwhich. are collectively referred to
herein as the "System". The System A& be transferred' upon signing this agreement and
the Real Property which makes up a part thereof, by quit-claim deed.
2.Consideration for Transfer The Association shall pay, over and remit to Brian
Water such sums r as necessary to reimburse Brian Water for all costs incurred in -
the sum of$ Ii :ipayable as follows: , in addition to the revenues
identified in 7. ibelow.
Further, the Association hereby assumes any and all outstanding obligations to
remediate any current defects or contaminations found upon any prior or future
inspections of the System.
TRANSFER AGREEMENT Page 1
3. Conditions to Transfer. The transfer embodied by this Agreement shall be
contingent upon Brian Water providing such notices as are required by applicable
regulation to the Idaho Department of Environmental Quality and the Idaho Public
Utilities Commission.
Upon such notice, should any regulatory agency require approval of the transfer
contemplated hereby for any reason, the Association shall cooperate by providing any
and all information required for the transfer herein contemplated to gain such approval.
4. Inspections. The Association acknowledges that it has had an opportunity to
inspect the System. The Association acknowledges that it has had an opportunity to test
equipment and to test water quality and quantity. Brian Water shall allow the
Association continuing access to conduct such further tests and inspections as may be
necessary or required prior to the closing and transfer of title to the System. The parties
acknowledge that the sole purpose of further testing after the Effective Date hereof is to
allow the Association to be completely familiar with any condition and the use of the
operating equipment or components of the System, so as to be fully prepared to assume
its obligations upon the transfer of title to the System. The Association may not use the
results of inspections or testing to renegotiate the terms of this Agreement.
5. Repairs. Brian Water shall maintain the System in its current, functioning state
until the transfer of title to the System. Upon transfer of title to the System, the
Association shall be responsible for all repairs, maintenance and remediation with respect
to the System, whether presently known or hereafter discovered.
6. Notice to Customers. When the conditions contained in Paragraph 3 above,
have been satisfied, Brian Water shall send a notice to all consumers receiving water
from and through the System, as follows:
(a)notifying them of the imminent transfer of the System to the Association and
the expected effective date thereof, and
(b)providing a telephone number and address to use in order to obtain further
information.
7. Billings.
7.1 Final Customer Bills. Brian Water has done a final reading of all water
meters for January 2013 usage. Brian Water has sent a final water bill to each customer.
Brian Water shall be entitled to collect all revenues generated from said final reading,
minus any surcharge amount approved by the Idaho Public Utilities Commission.
7.2 Past Billing Records. Brian Water shall be entitled to retain all past billing-
records. Brian Water shall provide the Association reasonable access to such historical
billing data upon request for a period of 90 days following closing.
8. Closing. The closing and transfer of title shall take place upon signing of this
agreement.
9. Adjustments. The parties shall make adjustments for real property and school
taxes levied against any property which make up the System as of the date of closing and
transfer of title. Brian Water has paid the first half of 2012 Property Taxes (Public Utility
Tax Bill). The balance due in June 2013 shall be paid by the Association.
10. Representations by Brian Water. Brian Water hereby represents and warrants
the following, which representations shall survive the closing:
WATER SYSTEM TRANSFER AGREEMENT Page 2
(a)it shall provide its customer list, including names and addresses, to the
Association on the date of closing and transfer of title, and that such customer list shall be
true and accurate;
(b)Brian Water has not and will not accept any prepayment of water bills for
services to be provided following the closing and transfer of title;
(c)Brian Water is a corporation in good standing with the Secretary of State of
the State of Idaho;
(d)Brian Water has paid all outstanding franchise, income and business and
occupation taxes as of the date of closing and transfer of title;
(e)Brian Water has given UCC bulk sales notices to all of its known creditors, if
any;
(f)Brian Water is not subject to sales tax in the State of Idaho;
(g)Brian Water is duly authorized to operate its water system by the Idaho
Department of Environmental Quality and the Idaho Public Utilities Commission;
(h)the water rate charges by Brian Water have been duly approved by the Idaho
Public Utilities Commission;
(i)Brian Water has not charged any customer a rate in excess of the rate
approved by the Idaho Public Utilities Commission;
(j)there are no unresolved disputes with any customers over the amount of any
water bill, the quality of service, the rate charged or any other matter;
(k)all properties serviced by Brian Water have water meters installed and that, to
the best of Brian Water's knowledge, all such meters are in good working order; and
(1) Brian Water has the requisite, power and authority to transfer the System as
herein contemplated.
11. Representations by the Association. The Association hereby represents and
warrants the following, which representations shall survive the closing:
(a)the Association is fully authorized to purchase the System from Brian Water
pursuant to the terms of this Agreement;
(b)the Association's board of directors has approved the purchase of the System
herein contemplated in accordance with the requirements of its bylaws or other governing
documents;
(c)there is no litigation pending or threatened which would prevent the sale
contemplated by this Agreement;
(d)the Association expressly acknowledges that the System is subject to all the
rules and regulations of the Idaho Public Utilities Commission;
(e)the Association expressly acknowledges the regulatory authority of the Idaho
Department of Environmental Quality over water quality and testing of the System; and
(f)the Association acknowledges that after the transfer of title to the System, the
System must be operated by a qualified operator of a pressurized potable water system
and all such expense and cost related to the retention, training or hiring such operator
shall be the sole responsibility of the Association.
12. No Representations. Brian Water hereby makes no representation or warranty
with respect to the following matters:
(a) the state of any equipment, component or water lines, except that all
equipment shall be in good working order on the date of the transfer of title;
WATER SYSTEM TRANSFER AGREEMENT Page 3
(b)as to the presence or absence of any contaminant or the environmental
condition of the System or any of its components;
(c)whether any customer or other person has tampered with any water meter;
(d)the adequacy, suitability or with respect to any contamination of any wells or
pieces of equipment; and
(e)whether there are any adverse environmental conditions on any properties
owned by Brian Water which are to be transferred to the Association hereunder.
13.Entire Agreement. This Agreement, together with the other written
agreements and instruments executed concurrently herewith or pursuant to the terms and
provisions hereof, contain the entire agreement between the parties concerning the
matters herein set forth and supersedes all prior agreements between them respecting
such matters.
14.Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument. At the trial of any matter arising under this Agreement, only
one counterpart need be produced.
15.Headings. Paragraph headings are for convenience and identification only
and shall not be used to interpret or construe this Agreement.
16.Waivers. Except as herein expressly provided:
16.1 No waiver by either party of any breach of this Agreement, or of any
warranty or representation hereunder, shall be deemed to be a waiver by the same party
of any other breach of any kind or nature (whether preceding or succeeding the breach in
question, and whether or not of the same or similar nature).
16.2 No acceptance by a party of any payment or performance after any such
breach shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder, whether or not the party knows of the breach when
it accepts such payment or performance.
16.3 No failure by any party to exercise any right it may have under this
Agreement or under law upon another party's default, and no delay in the exercise of that
right, shall prevent it from exercising the right whenever the other party continues to be
in default. No such failure or delay shall operate as a waiver of any default or as a
modification of the provisions of this Agreement.
17.Whenever the singular or plural number, or the masculine or feminine or
neuter gender, is used herein, it shall equally include the other(s).
18.Notices. Any notice which any person is required or may desire to give
hereunder shall be in writing and may be personally delivered, transmitted by facsimile,
other electronic means, or delivered by the United States Postal Service or private
delivery service to the above addresses. Notice is deemed given when received.
19.Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Idaho.
20.Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, both parties and their respective heirs, representatives, successors and assigns.
21.Modifications. This Agreement may be may be modified only by a written
document signed by representatives of both parties. A purported oral modification shall
not be effective for any purpose.
WATER SYSTEM TRANSFER AGREEMENT Page 4
The parties have hereunto set their hands and seals the day and year first above
noted.
SELLER: PURCHASER:
Brian Water Corp. BrianSubdivisio ater Users Assn.
By 7?L\ 7 7
Owner Regist Ag nt
STATE OF IDAHO)
) ss.
County of Ada )
On this _____day of , 2013, before me, a Notary Public
in and for said state, personally appeared the undersigned Tony Bowar and Richard
Juengling, known to me to be the persons whose names are subscribed to the within
instrument, and acknowledged to me that they executed the same.
'0
QUITCLAIM DEED
FOR VALUE RECEIVED, / ____ [Grantor] does hereby convey, release, remise and forever
quit claim unto ' [Granteel jti whose current address is:
[Grantees Address]
5 ?'C
the following described premises / ijJ uJt. . . L..e ''O '3 j y,
[Legal Description] /.?
TO HAVE AND TO HOLD the said premises, unto the said grantees, heirs and assigns forever.
Date: , 3
By:
()
[Grantor's Name]
State of Idaho )
/J )S.S.
County of A'A..-)
On this d.%Of , in the year 20L, before me
persnalIy appeared , proved to me on
the basis of satisfactory evidence to be the person(s) whose nae(s) is(are) subscribed to the within
instrument, and acknowledged that he(she)(they) eeutfffiëm.
JuSil 4(.)L:i:IS
Not.ir\ Pubh
tatt ol uaIi..