20040729Water Main Extension Agreement.pdf

~ent ~y:~ETZEL&WETZEL , PLLC;2086673400 ;J ul- 23 - 04 9 :
Id~~~ Public UtmtfEfsgeofumission
Office of the SecretaryRECEIVED
JUL 2 9 2004
WATER MAIN EXTENSION AGREEMENT
DIAMOND BAR ESTATES LLC
Boise, Idaho
THIS AGREEMENT is entered into on the date set forth below, by and between
DIAMOND BAR ESTATES LLC, an Idaho limited liability company, dba DIAMOND BAR
ESTATES WATER COMPANY located at P.O. Box 1870, Hayden, Idaho 83835 (herein
referred to as uDIAMOND WATER") and WALTER AND GRACE SINGER, husband and
wife at 11463 W. Riverview, Post Falls Idaho 83854 (herein referred to as "SINGER"
RECITALS:
A. DIAMOND WATER owns two wells and currently provides domestic water
services to DIAMOND BAR ESTATES, and is a public utility governed by the Idaho
Public Utility Commission (Commission).
B. SINGER is the owner of and is developing approximately 70 acres of land
neighboring DIAMOND BAR ESTATES, LLC, and intends to plat 14 lots. more
particularly described in Exhibit IIA" (herein referred to as IIBOEKEL ESTATES") all of
which lots require domestic water service.
C. It is the purpose and intent of the parties that DIAMOND WATER will
provide domestic water delivery and maintenance under the tenns of this Agreement
and the Commission s Customer Relation Rules and Diamond Bar s filed Tariffs.
D. This Agreement is subject to the Commission s Customer Relation Rules
and Diamond Bar's filed Tariffs which rules shall apply to the expanded service territory.
NOW , THEREFORE, based on the agreements and covenants provided herein.
it Is agreed as follows;
DEFINITIONS
All definitions provided herein shall apply to this Agreement and the
General Rules and Regulations Governing this Water Main Extension Agreement
adopted hereunder.
1 UAdjusted Construction cosr, for the purposes of this Rule, shall be
reasonable and shall not exceed the costs recorded in conformity with generally
accepted water Utility accounting and sound engineering practices, and as
specifically defined in the Uniform System of Accounts for Water Utilities
prescribed by the Commission, of installing facilities of adequate capacity for the
service requested. If the Utility, at its option, should Install facilities with a larger
capacity or resulting in a greater footage of extension than required for the
service requested, the fladJusted construction cost" , for the purposes of this
WATER MAIN EXTENSION AGREEMENT - DIAMOND BAR ESTATES LLC
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Rule, shall be determined by the application of an adjustment fac~or to ac~ual
construction cost of facilities installed. This factor shall be the ratio of estimated
cost of required facilities to estimated cost of actual facilities installed.
2. C6Agreement" and IIMain Line Extension Contract" shall mean this
Agreement between DIAMOND BAR ESTATES LLC, SINGER and his assigns,
the future Customers in BOEKEL ESTATES.
Commission" shall mean the Idaho Public Utilities Commission.
4. ACustomer" or I.all Customers" shall mean SINGER, for so long as
Singer owns any lots in BOEKEL ESTATES. and the assigns of SINGER; all of
which shall be water users in BOEKEL ESTATES.
5. &IMain Line Extension Contract'l shall mean this Agreement between
DIAMOND BAR ESTATES LLC and SINGER and his assigns, the future
Customers in BOEKEL ESTATES.
6. II Utility" shall mean DIAMOND BAR ESTATES LLC dba Diamond
Bar Water Co. also referred to as DIAMOND WATER.
7. IWater System" or "Facilities '.shall mean the main line(s)
connections, easements and all necessary appurtenances supporting the water
system constructed under this Agreement all of which Is more particularly
described in Exhibit 'IB" attached hereto and by this reference made a part
hereof.
DOMESTIC WATER DELIVERY
1. DIAMOND WATER shall deliver domestic water to Customers of
BOEKEL ESTATES for residential use under the terms and conditions set forth
herein subject to the Commission s Customer Relation Rules and Diamond Bar's
filed Taliffs.
2. SINGER, for 80 long as Singer owns any lots in BOEKEL
ESTATES, and all Customers shall abide by this Agreement, the Commission
Customer Relation Rules and Diamond Bar's flied Tariffs.
3. DIAMOND WATER shall provide water to each lot in BOEKEL
ESTATES at a tap-on location stubbed to the property line. The property owner
shall be responsible for construction, maintenance and repair of the water
service line and required cross-connection devices from the tap-on location to
the point of ultimate use.
WATER MAIN EXTENSION AGREEMENT - DIAMOND BAR ESTATES LLC
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4. Water meters shall be installed by DIAMOND WATER. No meter
shall be moved without the prior written consent of DIAMOND WATER.
5. Service lines and other associated facilities from the tap-on location
to point of water usage shall be constructed at the sole expense and risk of the
Customer. Construction criteria for service lines, back flow preventer(s), shut-off
valve(s), reducing valve(s), and other necessary equipment shall be provided by
owner pursuant to aU federal, state and local standards.
DIAMOND WATER shall remedy defects in the system main lines,
pumps and meters. Each Customer is responsible for repairs and maintenance
of all service lines, cros&-connection devices, valves, and equipment from the
tap-on location to the point of ultimate usage.
7. Each Customer grants an irrevocable license on, over, under and
across their property to DIAMOND WATER for the purpose of maintaining,
expanding, repairing the Water System.
DIAMOND WATER reserves the right to sell or transfer (at its
option) the Water System to a home owners association, legally organized water
district, public corporation, non-profit corporation, private individual or
corporation. DIAMOND WATER reserves the unqualified right to extend future
water service using the Water System constructed for BOEKEL ESTATES.
No failure to enforce, delay or omission in the exercise of any right
or remedy by DIAMOND WATER of any violation or default by Customer(s) shall
impair such a right or remedy, or be construed as a waiver.
10 In case anyone or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal, unconscionable or
unenforceable in any respect, such invalidity I illegality I unconscionability, or
unenforceability shall not effect any other provision hereof and this Agreement
and the Rules and Regulations shall be construed as if such invalid. illegal,
unconscionable or unenforceable provision had never been contained herein
and all other terms and provisions hereof will nevertheless, remain effective and
be enforced to the fullest extent permitted by law.
11 In addition to the remedies set forth above, DIAMOND WATER re-
serves the right to enforce any restrictions contained herein by any other appro-
priate action as allowed under the Commission s Customer Relation Rules and
Diamond Bar's filed Tariffs.
12 DIAMOND WATER shall provide water for fire flow at the locations
and in the amounts required by the Fire District.
WATER MAIN EXTENSION AGREEMENT. DIAMOND BAR ESTATES LLC
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13 DIAMOND WATER shall abide by all rules and regulations,
including the testing requirements of the State of Idaho Department of
Environmental Quality.
CONNECTIONS AND EASEMENT.
1. SINGER agrees and confirms that DIAMOND WATER is the owner
of the Water System.
2. Prior to execution of this Agreement, DIAMOND WATER shall
deliver to SINGER a copy of the plans and specifications which will be used to
construct the WATER SYSTEM. SINGER shall deliver to DIAMOND WATER
written documentation, recorded in the official records of the Recorder s Office,
Kootenai County, Idaho, in form satisfactory to DIAMOND WATER, granting to
SINGER and DIAMOND WATER a good and valid easement to that property
identified and described in Exhibit lI . The purpose and terms of the easement
should provide substanti.ally as follows:
(Grant of) an easement to enter upon, over, across, through, and
under the property and real estate more particularly described as
set forth in Exhibit "A" to construct reconstruct, operate, inspect,
maintain, remove, replace and repair the pipeline. vaults, valving,
meters and appurtenances of the Water System.
This easement shall be. at a minimum, five (5) feet each side of
the pipe line location and is for the purpose of conveying water
through the pipeline and includes the right of ingress and egress
of persons, materials, vehicles and equipment. The timing.
manner and use of the easement rights herein granted shall be at
the sole discretion of DIAMOND WATER.
3. DIAMOND WATER is the sole OWNER and controller of the
Water System which shall be, repaired, maintained, operated, replaced or
reconstructed only under the direction and control of DIAMOND W TEA.
Such ownership and control by DIAMOND WAfER shall survive any
termination of this Agreement.
RESPONSIBILITY THE PARTIES.
1. Except in the case of an emergency, no one, except an
authorized DIAMOND WATER representative, is allowed to turn-on or
turn.off the water to BOEKEL ESTATES at the designated service
connection.
WATER MAIN EXTENSION AGREEMENT. DIAMOND BAR ESTATES LLC
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DIAMOND WATER agrees to build water main extension
and related Water System improvements to provide service to BOEKEL
ESTATES, and repair, ma'intain and reconstruct the Water System
improvements in accordance with standards set by local, state and
federal agencies with legal jurisdiction over water delivery by DIAMOND
WATER.
SINGER agrees to pay DIAMOND BAR WATER
COMPANY for the costs of construction of the water main extension and
related Water System improve
)1rv
~inJ!.BOEKEL ESTATES. Such
costs are estimated to be $
/ ~- ~
c!! t1/: S
SINGER hereby contributes the water main extension and
related Water Syste'm improvements servicing BOEKEL ESTATES built
by DIAMOND BAR WATER COMPANY to DIAMOND BAR WATERCOMPANY.
Unless either party provides notice to the other in writing of change
of address as specified in this paragraph, any notice required by this
Agreement shall be deemed sufficient if delivered personally or mailed
postage prepaid . to DIAMOND WATER or to SINGER as follows:
Diamond Bar Estates Water Company
O. Box 1870
Hayden, 10 83835-0081
Walter and Grace Singer
11463 W. Riverview
Post Falls Idaho 83854
PRIOR UNDERSTANDINGS AND AGREEMENTS NULL AND VOID.
This Agreement sets forth the entire Agreement between the
parties. All prior Agreements including the WATER MAIN EXTENSION
AGREEMENT DIAMOND BAR ESTATES LLC between the parties dated the 2nd
day of June, 2004 are hereby revoked.
2. This Agreement may not be amended or modified except in writing
signed by the parties.
CAPTIONS.
The paragraph heading are for convenience of reference only and shall
not control or affect the meaning of any provision of this Agreement.
WATER MAIN EXTENSION AGREEMENT.. DIAMOND BAR ESTATES LLC
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AUTHORITY TO EXECUTE AGREEM
All signatories to this Agreement warrant and represent that they have the
power and authority to execute this Agreement and bind the entity they indicate
they are representing.
AGREEMENT RUNS WITH THE LAND
This Agreement shall run with the land and shall be binding on and inure
to the benefit of the future Customers of each lot in BOEKEL ESTATES. The
easements and rights granted herein exist in perpetuity and shall inure to the
benefit of and be binding upon the heirs, assigns and successors in interest of
DIAMOND WATER and SINGER.
GOVERNING LAW10.
This agreement shall be governed by and construed in accordance with
the laws of the State of Idaho.
11.INTERPRET A TI ON
The parties agree In all cases that the language of this Agreement will be
construed simply, according to its fair meaning, and not strictly for or against
either party.
A TIORNEY'S F 12.
In the event of any controversy, claim, or dispute relating to this
Agreement or its breach , the prevailing party shall be entitled to recover reasonable
expenses, attorney s fees and costs.
13.IND PENDENT REVIEW
SINGER has been advised to seek review of this Agreement by independent
legal counsel, and by his signature below, he represents that he fully understands and
accepts the terms set forth herein.
IN WITNESS WHEREOF, the parties pursuant to authority of the respective
entitles have executed this Agreement on the dates set forth In the respective
acknowledgments below.
WATER MAIN EXTENSION AGREEMENT. DIAMOND BAR ESTATES LLC
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DATED this day of July 2004.
DIAMOND BAR ESTATES WATERANY
, Member
SINGER"
ST ATE OF IDAHO
)88.County of Kootenai
On this day of July 2004. before me, a Notary Public. personally appeared ROBERT N.
TURNIPSEED, known orJdentlfled to me. to be the of DIAMOND BAR ESTATES WATER
DIAMOND WATER, that executedlhe said Instrument, and acknowledged to me that such DIAMOND
BAR ESTATES WATER DIAMOND WATER, executed the same.
, I have hereunto set my hand and affixed my official seal the day and
,.
itten .
Notary for th State of I lj My Commission Expires da)o
County of Kootenai
On this8.~day of July 2004, before me. the undersigned, a Notary Public for the State of
Idaho, personally appeared W ALTER AND GRACE SINGER, known or identified to me to be the
person(s) whose name is subscribed to the within instrument, and acknowledged to me that he/sheexecuted the same.
Notary for the Stata of Id
(\
My COmmission Expires: "8: A ....,.u
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WATER MAIN EXTENSION AGREEMENT. DIAMOND BAR ESTATES LLC
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