EPCOR and CoEM Utility Asset Sale Agreement
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1 BILL OF SALE THIS BILL OF SALE is made and entered into by THE CITY OF EL MIRAGE, an Arizona municipal corporation (“Seller”), and EPCOR WATER ARIZONA INC., an Arizona corporation (“Buyer”) effective as of ____________, 2024. Seller and Buyer are referred to herein as the “Parties”. Recitals A. Seller owns certain pipelines, tangible personal property and equipment more particularly described on Exhibit “A” attached hereto and by this reference incorporated herein (collectively, the “Personal Property”). B. The Personal Property is utilized to serve those customers described on Exhibit “B” attached hereto and by this reference incorporated herein (collectively, the “Customers”). C. Seller desires to sell, assign, transfer, convey and deliver to Buyer all of Seller’s right title and interest in to and under (i) the Personal Property, (ii) all agreements with the Customers together with all Customer meter and payment security deposits, contributions and advances (collectively the “Customer Agreements and Deposits”), if any, (iii) all Customer records (including historical water use information and customer billing information), (iv) all prints, drawings (including as-built drawings), plans, engineering reports, surveys, specifications, shop drawings, equipment manuals, and other information in Seller’s possession or control and relating to the Personal Property (collectively, the “Records”), and (v) the right to serve the Customers. Further, Buyer desires to purchase all of Seller’s right, title and interest in, to and under the Personal Property, Customer Agreements and Deposits and Records and acquire the right to serve the Customers, on the terms and conditions contained in this Bill of Sale. Terms and Conditions NOW, THEREFORE, for an in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows: 1. Sale and Transfer of Personal Property. Seller hereby sells, assigns, transfers, conveys and delivers to Buyer, and Buyer hereby accepts from Seller, all of Seller’s right, title and interest in, to and under the Personal Property, the Customer Agreements and Deposits, the Records together with the right to serve the Customers (collectively, the “Purchased Assets”). The final sale is subject to execution of a Service Agreement effective June 3rd, 2024 with and between Parties. a. Sewer Service to 12901 W. Olive Avenue. Notwithstanding any other provision contained in this Agreement or the Service Agreement, El Mirage will serve the property at 12901 W. Olive Avenue with sewer service until such time that EPCOR can transfer service to their system. El Mirage sewer service 2 is limited to the previously committed clear water discharge for the PHX80 property. EPCOR will notify and coordinate with the City to transfer sewer service to this property upon completion of necessary new capital assets by Microsoft to serve the entire property. Expected completion for these improvements is Fall of 2025. 2. Purchase Price. The purchase price for the Purchased Assets shall be the sum of nine hundred forty six thousand one hundred six and 68/100 Dollars ($ 946,106.68) (“Purchase Price”). The Purchase Price shall be Seller’s total cost for installation of assets. Cost shall be payable by Buyer in cash or other immediately available funds upon execution of this Bill of Sale. 3. Representations. Seller hereby represents and warrants to Buyer that it is the lawful exclusive owner of the Purchased Assets, that no other party has any right, title or interest in and to the Purchased Assets and that Seller owns the Purchased Assets free and clear of all liens, claims and encumbrances. Seller further covenants and warrants to Buyer that Seller has the full right and authority to sell, assign, transfer, convey and deliver to Buyer the Purchased Assets, that the execution and delivery of this Bill of Sale has been duly authorized on the part of Seller, that no consent of any third parties is required, that there are no legal actions, suits, mediations, arbitrations, or other legal or administrative proceedings pending or, to Seller’s knowledge, threatened against or involving the Purchased Assets, and that this Bill of Sale constitutes a valid and binding obligation of Seller enforceable against Seller in accordance with its terms. 4. As-Is. Subject to the representations and warranties made herein, Buyer acknowledges and agrees that the Purchased Assets is being conveyed by Seller on an "AS IS,” “WHERE IS” AND “WITH ALL FAULTS” basis. The foregoing shall not apply to title defects or liens. Except as specifically set forth in this Bill of Sale, Seller makes no warranties, expressed or implied, including the warranties of merchantability, marketability and fitness for a particular purpose. Buyer further acknowledges and agrees that Seller has not made and does not make any representations or warranties (other than as specifically set forth herein) as to the value, nature, quality or condition of the Personal Property or the suitability of the Personal Property for any uses which Buyer may contemplate. Seller ensures that Buyer will have reasonable physical access to the Purchased Assets in order to make any and all necessary inspections, repairs and replacements going forward from the date of sale. 5. Possession. Seller shall deliver control and physical possession of the Personal Property, Customer Agreements and Deposits and Records to Buyer no later than June 3rd, 2024. 6. Further Documents. Seller agrees that it will execute and deliver such further instruments of sale, certificates of title, assignment, transfer and conveyance and take such other actions reasonably requested by Buyer in order to more effectively sell, assign, transfer, convey and deliver to Buyer all rights in the Purchased Assets. 3 7. Governing Law. This Bill of Sale shall be governed by and interpreted and enforced in accordance with the laws of the State of Arizona. Each Party hereby waives to the fullest extent permitted by law any right it may have to a trial by jury in respect of any claim, demand, action or cause of action based on, or arising out of, under or in connection with this Bill of Sale. 8. Successors and Assigns. Except as otherwise provided in this Bill of Sale, the rights and obligations of the Parties hereunder will be binding upon and inure to the benefit of their respective successors and assigns. 9. Counterparts or Scanned Signature. This Bill of Sale may be executed and delivered in counterpart signature pages executed and delivered via facsimile transmission or via email with scan or email attachment, and any such counterpart executed and delivered via facsimile transmission or via email with scan or email attachment will be deemed an original for all intents and purposes. All signatures will be deemed to be delivered simultaneously. 10. Transaction Expenses. Each of the Parties shall pay the fees of their own attorneys, accountants, and other professional advisers or consultants in connection with the negotiation, preparation and execution of this Agreement and any documents associated with the closing and pursuing or consummating the transactions contemplated herein. 11. Cancellation. Pursuant to A.R.S. § 38-511 this Agreement may be canceled within three years after its execution, if any person significantly involved in initiating, negotiating, securing, drafting, or creating the contract on behalf of the state, its political subdivisions or any of the departments or agencies of either is, at any time while the contract or any extension of the contract is in effect, an employee or agent of any other party to the contract in any capacity or a consultant to any other party of the contract with respect to the subject matter of the contract. 12. Israel. To the extent A.R.S. § 35-393 through § 35-393.03 is applicable, Buyer certifies that it is not currently engaged in, and agrees for the duration of this Agreement that it will not engage in, a boycott of goods and services from Israel, as that term is defined in A.R.S. § 35-393. [Signature page follows] 4 IN WITNESS WHEREOF, the Parties have caused this Bill of Sale to be executed effective as of the date first written above. “SELLER” “BUYER” THE CITY OF EL MIRAGE, an Arizona municipal corporation By: Name: Its: ATTEST: By: Name: Its: APPROVED AS TO FORM: CITY ATTORNEY By: Name: Its: EPCOR WATER ARIZONA INC., an Arizona corporation By: Name: Shawn Bradford Its: SVP, US Regulated Water EXHIBIT “A” PERSONAL PROPERTY City of El Mirage Copperwing Logisticenter - Utility Asset Summary Water Main Sewer Main *Note: Item #1 is titled Dysart water main. Project includes sections of Olive Avenue and Joe Ramirez Road 3 2 1 Item Year Constructed Constructed Value Book Value (November 2023) Percent of Asset to be Transferred Final Minimum Value 1 Dysart Water Main 2020 1,432,278.06 $ 1,203,113.58 $ 44% 529,369.98 $ 2 Olive Water Main 2017 349,541.98 $ 279,633.58 $ 100% 279,633.58 $ 3 Joe Ramirez Sewer Main 2019 163,218.00 $ 137,103.12 $ 100% 137,103.12 $ 946,106.68 $ City of El Mirage Utility Asset Values (Cpperwing Logisticenter) Total EXHIBIT “B” CUSTOMERS Customer Name METER SERVICE ADDRESS AVANTI WINDOWS AND DOORS LLC 2"DOMESTIC 12501 W OLIVE AVE 2"LANDSCAPE MICROSOFT CORPORATION 12" DOMESTIC 12901 W OLIVE DR 12" DOMESTIC CIVES CORPORATION 3" DOMESTIC 13501 W JOE RAMIREZ RD 2" LANDSCAPE TI COLD 2" DOMESTIC 13000 W JOE RAMIREZ RD 3" LANDSCAPE CONSOLIDATED RESOURCES 2"DOMESTIC 13420 W JOE RAMIREZ RD 1"LANDSCAPE