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HomeMy WebLinkAboutC-4431 Com + ASSIGNMENT AND ASSUMPTION AGREEMENT \r This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is entered into as of September 2q, 2021 (the "Effective Date") by and among East Pasadena Water Co., a California corporation ("Seller"), California-American Water Company, a California corporation ("Buyer"), and the City of Arcadia, a municipal corporation("Arcadia"). Recitals A. Buyer and Seller are parties to that certain Asset Purchase Agreement dated as of April 19, 2019 (the "Purchase Agreement"), pursuant to which Seller has agreed to sell, and Buyer has agreed to purchase, all or substantially all of the assets of Seller that are used or held for use in the operation of a water supply and distribution system that serves approximately 3,000 customers in Pasadena, California. B. Seller and Arcadia are parties to that certain Agreement for Sale of Water and Provision of Fire Hydrants dated October 15, 1982, a copy of which is attached hereto as Annex A(the "Interconnection Agreement"). C. Under the Purchase Agreement, Seller has agreed to assign to Buyer, and Buyer has agreed to assume,the Interconnection Agreement. D. Arcadia is willing to consent to the assignment and assumption of the Interconnection Agreement, on the terms set forth in this Agreement. Agreement ACCORDINGLY, based on the foregoing and the mutual covenants set forth below, the parties hereby agree as follows: 1. Assignment and Assumption. Seller does hereby sell, assign, transfer and convey to Buyer, and Buyer does hereby, from and after the Effective Date, accept from Seller, all of Seller's right, title and interest in and to the Interconnection Agreement. Buyer does hereby, from and after the Effective Date, assume from Seller and Buyer does hereby agree to pay, perform and discharge, as and when due, all of Seller's obligations under the Interconnection Agreement. 2. Consent to Assignment and Assumption. Arcadia hereby consents to the assignment and assumption of the Interconnection Agreement as provided in this Agreement, and agrees that the Interconnection Agreement between Arcadia and Buyer shall remain in full force and effect in accordance with its terms after the Effective Date, subject to the amendment described in Section 3 of this Agreement. 3. Amendment. Section 8 (Notices) of the Interconnection Agreement hereby is amended to replace the address for Seller with the following address for Buyer: California- American Water Company, 655 W. Broadway, Suite 1410, San Diego, California 92101, Attention: Vice President, Legal. 96996624v.2 4. Further Assurances. Each of the parties hereto covenants and agrees to execute and deliver, at the request of any other party, such further instruments of transfer and assignment and to take such other action as any other party may reasonably request to more effectively consummate the assignment and assumption contemplated by this Agreement. 5. Purchase Agreement. This Agreement is being delivered pursuant to the Purchase Agreement and shall be construed consistently therewith. As between Buyer and Seller, in the event of any conflict or ambiguity between the terms of the Purchase Agreement and the terms of this Agreement, the terms of the Purchase Agreement shall control. This Agreement is not intended to, and does not in any manner, enlarge, diminish or modify the rights and obligations of the parties to the Purchase Agreement, including, without limitation, any representations, warranties or indemnification obligations contained therein. 6. Successors and Assigns. This Agreement and all of the provisions hereof shall be binding upon the parties hereto and their respective successors and permitted assigns, and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 7. Counterparts. This Agreement may be executed in any number of multiple counterparts, each of which shall be deemed to be an original copy and all of which shall constitute one agreement, binding on all parties hereto. A manual signature on this Agreement, an image of which shall have been transmitted electronically, will constitute an original signature for all purposes. The delivery of copies of this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement for all purposes. 8. Governing Law. This Agreement is to be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of law principles. [SIGNATURE PAGES FOLLOW] 2 96996624v.2 .....,.# '4, IN; \\ !Ni '0, tA}a RI.Oi... Cr4k 11 Of 111‘: r,..Irm.H.I.,-,,,t,;,,vd ', , .,,,.,ict-t-,;,•,,! r, oc ,4 ova,:J, fl)'ti'w I.M•1 VAN:kill-AA ‘‘Al 1:14 4 (.1 — - . , ,.. .." ,, \ame- i - • -- alt. /"._--•., -.., .. ,,, --. . . Iitie 1:11.c,.......':, '7=:,,,,k.„..ev-r,„-,_ •:,• ,,,,I,;.,..1,4:.5.,,; ( ALII4)R1A-ANIFRICAN A8 ATF.14 COMPANY ,./. 14,...._ : 5%"1 Ar,,i, 711 k14, r,tie ;.( \am(7- ofrius r:44,1gr-'44 lit', lit_ce, 1;-e,51 As/lie-44 Peve-i49/41-1064- I E. 141'S (. ONTrl'il)ON .. + I. IN WITNESS WHEREOF,each of the parties has caused this Agreement to be signed as of the Effective Date. EAST PAS ENA WATER CO. -- -Nam tc.✓ �+nev /77: . i./s�s Title: P €.0.°t/ca By: 1, itle:d-l c- O fCbA`ftlt•a CALIFORNIA4 MERICAN WATER COMPANY By: Name: Title: ( By: Name: I Title: 1 [SIGNATURES CONTINUED1ON NEXT PAGE] 3 96996624v.2 CITY OF ARCADIA ‘1: r Name: Dominic . zaretto Title: City Manager, City of Arcadia ATTEST: By:la Name: Paul Cramer Title: Deputy Public Works Services Director, City of Arcadia APPROVED AS TO FORM: By: Name: Stephen P. Deitsch Title: City Attorney, City of Arcadia 4 96996624v.2 ANNEX A Interconnection Agreement (Attached) 5 96996624v.2 "ANNEX A" CITY COUNCIL DONALD 0 PELLEGR!_N() ( _:7(t4e5- 62'4_>( Of - 4' MA)Ok e...;„,„ 1, ' ci/ f DENNIS A LOIESKi •GADIA MAIOR PR()TE�IPORt 240 WEST HUNTINGTON DRIVE JEFFREY A DR1NG ARCADIA, CALIFORNIA 91006 RICHARD A. HALTO 1 (213) 446-4471 c 681-0276 DAVID s HANNAH GEORGE!. WATTSCHRISTINE VAN MAANFN C Irt '1A AGFR October 18, 1982 cI,'r CI ERR East Pasadena Water Company 3725 E. Mountain View Avenue Pasadena, CA 91107 Attention: Mr. Jim Campbell General Manager Dear Jim: Attached is a fully executed copy of our "Agreement". Mr. Sweeney of Arcadia Parking has paid us to install the 12" waterline in Naomi Avenue and an on-site fire hydrant. We'll start construction as soon as we get delivery on the materials from our suppliers. We should have the waterline installation map for this work completed this week and I 'll mail you a copy for your review when it is finished. I should also be able to give you an estimated starting date for our work. Thanks again for your cooperation on this project. Very truly yours , Pobert G. Berlien Water Manager RGB:mr Attachmert. AGREEMENT FOR SALE OF WATER AND PROVISION OF FIRE HYDRANTS This Aereernent for sole of water and provision of fire hydra t ercinafter releired to as "Agreement") is mode as of the / day of ,C eEL (982. by dna between the City of Arcadia. a Municipal Corporation (hereinafter referred to us "Arcadia"), and the East Pasadena Water Company, a California Corporation (hereinafter referred to as "East Pasadena"). WITNESSETH WHEREAS. it is to the mutual advantage of Arcadia and East Pasadena to construct a metered inter-connection (hereinafter referred to os "connection") between their respective water facilities for the sale of water to East Pasadena for their use during emergencies, and for Arcadia to provide certain fire hydrants, and WHEREAS. East Pasadena desires to install said metered inter-connection and the City of Arcadia desires to sell water to East Pasadena end install certain fire hydrants as hereinafter set forth, NOW. THEREFORE, in consideration of the mutual promises. covenants and conditions herein contained and for other good. valuable and adequate considera- tion, the parties hereto agree as follows: Section I. Installation and Location of Connection A. Said connection is to be located on the south side of Naomi Avenue approximately 670 feet east of the center line of Golden West Avenue in the City of Arcadia. B. Arcadia will install a (2" waterline in Naomi Avenue from the end of its existing 12" waterline approximately 400 feet west of 3aldv;in Avenue to the location of connection described in Section I.A. C. Arcadia will provide a I2" tee and 12" valve at the point where Fast Pasadena will join the 12" waterline to make the connection. D. East Pasadena will join the Arcadia 12" waterline with on 8" waterline and will install the connection. Said connection shall include an 8" meter and flow through the connection will be controlled by a manually operated butterfly valve. The 8" meter shall have the capability of measuring flow up to a maximum of 2500 nallons per minute within 1-5% accuracy. E. The facilities described in Sections 1.B and I.0 will be paid for by the City of Arcadia. Facilities described in Section 1.D will be paid for by East Pasadena. East Pasadena will procure from Arcadia the street excavation permits necessary to install its facilities pursuant to this Agreement. Section 2. Maintenance of Facilities A. Arcadia shall own and maintain the focilitins described in Section LB and LC. East Posodenn shall own and maintain the facilities 4c-scribed in Section i.I). East Pasadena shall provide Arcadia with a meter test showina the meter described in Section I.D to he accurate within the specified units at intervals not to exceed three years. `)enc t icon 3. Operation of Connect ion and Availability of Water A. The valves will normally be in the "closed" position. In order to open the valves and take water. East Pasadena shall request and obtain approval from the Arcadia Water Manager or his designated representative. B. Arcadia shall allow the connection to he activated to supply water to East Pasadena at East Pasadena's request during emergency conditions in East Pasadena's system providing Arcadia has water sufficient to meet its own system demands. Such emergency conditions shall be defined as a fire or a major system failure in the East Pasadena system and acceptable evidence of such emer- gency condition shall be provided to the satisfaction of the Arcadia Water Manager. Whether Arcadia has water sufficient to meet its own system demands shall be determined at the sole discretion of the Arcadia Water Manager. C. Linder normal conditions Arcadia cnay make water available to East Pasadena at their reouest only when it is surplus to the needs of Arcadia. Availability of such surplus water is at the sole discretion of Arcadia. Section 14. Rote for Water Delivered A. The wafer delivered by Arcadia through the connection shall be charcted at Arcadia's outside-City water rate in effect at the time )t the delivery. No standby charge or minimum will he choraed for this connection. Section 5. Riaht to Provide vire Protection. A. East Pasadena hereby agrees to allow Arcadia the right to provide public fire hydrants only along Naomi Avenue from 13a1rwin Avenue westerly to the property known os 745 - 80° Naomi Avenue. B. East Pasadena hereby agrees to allow Arcadia the right to provide one (I) private on-site fire hydrant for the property known as 745 - 809 Naomi Avenue. C. Cast Pasadena Water Company aarees that the fire hydrants to be provided by Arcadia in Section 5.A and B shall not constitute a taking for a public purpose. that East Pcsadeno Water Company wit not be injured thereby. that none or Cast Pasadena Water L:ompany's water service property will be rendered inoperative thereby. reduced in value. nor rendered useless for water service to the area. under the provisions of Section 1501 et. seq. of Chapter 8.5 of the Public Utilities Code of the State of California, D. The ria+'tts granted Arcadia in Sections 5.A and 5.3 do not include the right to provide any other type of water service in the area described or to provide any type of service in any other area served by East Pasadena. Section 6. Termination of Agreeme.>rt A. Either party hereto may terminate Sections I. 2. 3 and 4 of this Agreement by giving the other party twelve (12) months written notice of its intention to uo so. Such cancellation shall not serve to cancel the rights and covenants contained in Section 5 hereof. B. Violation of Section 5.D of this Agreement by Arcadia will void oil rights and privileges granted in Section 5.A and 5.13 and East Pasadena shall be free to pursue all rights and remedies which may be available to it under the provisions of Section 1501 et. seq. of Chapter 8.5 of the Public Utilities Code of the State of California for the facilities installed pursuant to this Agreement. Section 7. Indemnification A. East Pasadena agrees to indemnify, defend and hold harmless the City and its officers, City Council, employees and agents from and ."against any and all losses, claims, damages; liabilities or expenses. of every conceivable kind. character and neture whatsoever, including. but not limited to, losses. claims, damages, liabilities or expenses arising out of, resulting from or in any way connected with conduct or work done in or about, or from the planning, design, acquisition, installation or construction or maintenance or operation of the valves or of said interconnection or any part thereof and any action or omission, whether actively negligent or passively nealigcnt or not negligent at all, by the City, its officers. City Council. employees or agents. This indemnification excludes the . installation and maintenance of facilities listed in Sections I.B and t.C. Section 8. Notices Any notice or delivery to be given to either party may be effected by personal delivery in writing or by registered or certified mail addressed as set forth below: o the City of Arcadia: lo East Pasadena Water Co: City Water Monac_ier General M,nnaaer City of Arcodia East Pasadena Water Company 2=3() VI. Huntington Drive 3725 E. Mountain View Avenue Arcac:ie. California 91006 Pasadena, California 91 107 ' F r i IN WITNESS WHEREOF, each of the parties hereto has caused this oareement to he executed by their respective officers theretofore duly outhori7ed as of the date opposite their signatures. the date of this agreement sholl be the !utast date pecified hereon. 1)ATED AV/VT,' DATED: / �I I City of Arcadia East Pasadena Water Company a M )ic 3 I Crrpors io a Colif.rnio Corpo tion .o(" 42'/,sf/cJ By Niayo� ' e: (Af ix C.'s• - -ol) :21-{- �.�'`"� `---� ATTEST• f.17 %7*(•/;--. leaL-' By - 41, rA, ' It City Clerk ecretary APPROVED . 0 FTM: /By / ,� City Attorney City of Arco "o J