HomeMy WebLinkAbout05964 - DESERT WATER AGENCY SALE OF WHITEWATER MUTUAL WATER CO SHARES " R
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CI I Y OF I•ALM SPRINGS
BOX 2743
Mt,M✓SPRINGS,CA 92263 STOCK PURCIIASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made as of date set forth
on the signature page below ("Effeetiv_e Date"), between the City of Palm Springs, a municipal
corporation("Slrarcholdcr") and Desert Water Agency, a California public agency("A�cn, ").
RECITALS
A. Shareholder owns the shares of the issued and outstanding capital stock of
Whitewater Mutual Water Company, a California corporation (the "Company"),
which are described on Exhibit "A" attached hereto ("Shares"),
B. The Company is a mutual water company which operates a water supply,
transmission and distribution system to provide non-potable irrigation water to its
shareholders (the "Business").
C. Agency is a special district formed under the laws of the State of California and
.serves domestic and recycled water to the City of Palm Springs and portions of
unincorporated Riverside County.
D. Agency is a shareholder of the Company and desires to acquire the Business
through the purchase of the Shares and Shareholder is willing to sell the Shares on
the teens and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing promises, the tents, covenants,
and conditions hereinafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, with the intent to be legally
bound, hereby agree as lbllows:
1. Purchase of Shares. On the terns and subject to the conditions set forth herein
and in reliance upon the representations and warranties made by the parties hereto, Shareholder
hereby agrees to sell to Agency and Agency agrees to purchase from Shareholder the Shares, free
and clear of all liens, claims, charges and encumbrances ol'any nature whatsoever.
2. Purchase Price.
(a) The purchase price for the Shares shall be One Thousand Seven Hundred
Fifty-Six and 79/100 dollars ($1,756.79) per share multiplied by the number of Shares being
acquired ("Purchase Price"). The purchase price has been calculated by taking the agreed value
of the Company of Nine Million One Hundred Sixteen Thousand Dollars ($9,116,000) and
dividing it by the total number of outstanding common shares, which is 5,189 (which includes a
share reserve of 50 shares). The value of the Company was determined pursuant to a valuation
report prepared by Krieger &. Stewart dated October 11, 2007, together with those agreed
corrections and adjustments to the valuation of the Company assets dated January 22, 2008
(collectively, the"Report").
RVBi15\GPRIC:Ci\'/1.55411,3 1
(b) At the Closing (as defined in Section 4 below), Agency shall pay
Shareholder the Purchase Price in cash via wire transfer of immediately available funds to the
account designated by the Shareholder.
3. Closine. Subject to the fulfillment of the closing contingencies of the parties set
forth in Section G below, the consummation of the transactions contemplated herein will take
place at a closing (the "C1osin ') at the offices of Best, Best & Krieger LLP, in Riverside,
California on a date set by the mutual agreement of Shareholder and Agency, but in no event
later than June 30, 2010. The date upon which the closing occurs shall be referred to hereunder
as the "Closing Date". Agency shall give Shareholder written notice of its intent to close no less
than ten (10) business days prior to the actual Closing Data In the event that the Closing has not
occurred as of June 30, 2010, then any party may terminate this Agreement.
4. Sharcholder's_R. enresentations. As a material inducement to the Agency to enter
into this Agreement and to consummate the transactions contemplated hereby, Shareholder
represents and warrants to Agency as follows:
(a) Ownership of Shares of Company. Shareholder has full voting power and
authority over the Shares, Subject to no proxy, shareholders agreement, voting trust or other
agreement or arrangement and has full right, power and authority to sell and deliver the Shares to
Agency in the manner provided for in this Agreement. Upon consummation of the transaction
contemplated herein, Shareholder will transfer to Agency good and valid title to all of the Shares,
free and clear of any claim, lien, charge or encumbrance of any nature whatsoever, except the
share legend.
(b) Authorization and. I nforceability. Shareholder has all requisite power and
authority to enter into this Agreement and to perform the transactions contemplated hereby. This
Agreement is a legal, valid and binding obligation of Shareholder, enforceable against
Shareholder in accordance with its terms, except as limited by bankruptcy, insolvency or other
laws affecting creditors' rights generally or by the availability of equitable remedies. As of the
execution of this Agreement, Shareholder is a resident of the State of California.
(c) Absence of Conflicts. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions provided for herein, will (i) conflict with
or result in a breach of any agreement to which Shareholder is a party, (ii) result in a conflict or
default under any Agreement by which the Shares are bound, or (iii) to the knowledge of
Shareholder, violate any law, ordinance, order, writ, injunction, decree, statute, rule or regulation
applicable to Shareholder.
(d) Consents. To the knowledge of Shareholder, no consent, approval or
action by any third party or governmental authority is required in connection with the execution
and delivery by Shareholder of this Agreement and the consummation of the transactions
contemplated hereby.
(e) Litigation. To the knowledge of Shareholder, there are no actions, suits,
proceedings and investigations pending or threatened against or affecting Shareholder which
RVBUS\GPRICC\735540.3 2
could impair Shareholder's ability to enter into this Agreement or carry out the transactions
contemplated hereby.
(t) Claims or Rights Against the Company. Shareholder has no right or claim
against the Company for distributions, credits or other payments and there are no existing or
pending transactions between the Company and Shareholder.
5. Agency Representations. Agency hereby represents and warrants to Shareholder
as follows:
(a) Authority and Enforceability. Agency has all requisite power and
authority to enter into this Agreement and to perform the transactions contemplated hereby. This
Agreement is a legal, valid and binding obligation of Agency, enforceable against Agency in
accordance with its terms, except as limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally or by the availability of equitable remedies.
(b) Absence of Conflicts. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions provided for herein, will (i) conflict with
or result in a breach of any agreement to which the Agency is a party, (ii) conflict with or result
in a breach of any provision of Agency's governing documents; or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Agency.
(c) Consents. No consent, approval or other action is required in connection
with the execution and delivery by Agency of this Agreement and the consummation of the
transactions contemplated hereby by (i) any local, state, federal or foreign governmental
authority; or(ii) any party to a contract, lease, or agreement.
6. Closing Requirements and Deliveries. This Agreement and the transactions
contemplated herein shall close upon the satisfaction of the following Closing requirements and
deliveries:
(a) Agency's Closing Conditions. Agency's obligation to purchase the Shares
is subject to the fullillment on or before the Closing of the following conditions and
contingencies (any one or more of which Agency may waive in writing prior to or at the
Closing):
(i) Shareholder's representations acid warranties set forth herein shall
be true and correct when made and as of the Closing, and Agency shall have received a
Certificate of Shareholder dated as of the Closing and signed by the Shareholder to all such
effects;
(ii) Shareholder shall deliver the original stock certificate representing
the Shares being acquired accompanied by a Stock Assignment Separate from Certificate in the
form attached hereto as _Exhibit "B", which certificate includes the waiver required by Section 35
of the Bylaws of the Company to sell the Shares separate and apart from the land described in the
stock certificate; and
RVBUS\GPRICE\735540.3 3
(iii) To the extent that Shareholder is a director, officer or employee of
the Company, he or she shall provide a written resignation with full releases from liability
satisfactory to Agency's legal counsel.
(b) Shareholder Closing Conditions. Shareholder's obligation to sell the
Shares at the Closing is subject to the fulfillment on or before the Closing of the following
conditions (any one or more of which Shareholder may waive in writing prior to or at the
Closing):
(1) Agency's representations and warranties set forth herein shall be
true and correct when made and as of the Closing and Shareholder shall have received a
Certificate of Agency dated as of the Closing and signed by the Agency to all such effects;
(ii) Shareholder shrill have received confirmation of wire transfer to
such Shareholder's account of the Purchase Price for such Shareholder's Shares; and
(iii) Agency shall have obtained any consents or waivers required for
the ormsummmation of any of the transactions contemplated by this Agreement.
7. EFFECT OF CLOSING ON WATER SERVICE.
(a) AS OF THE CLOSING, SHAREHOLDER ACKNOWLEDGES THAT
SHAREHOLDER SHALL NO LONGER HAVE A RIGHT TO WATER SERVICE FROM
THE COMPANY, IMMEDIATELY FOLLOWING THE CLOSING, THE COMPANY'S
WATER SYSTEM SHALL BE TRANSFERRED TO AGENCY AND ALL WATER SERVICE
FOi.,LOWING THE CLOSING SHALL BE PROVIDED BY AGENCY SUBJECT TO
AGENCY'S CURRENT RATES AND REGI.JLATIONS. AT LEAST THIRTY (30) DAYS
PRIOR TO THE CLOSING, AGENCY SHALL PROVIDE SHAREHOLDER WITH
INFORMATION WITH RESPECT TO THE COST AND PROCEDURE TO TRANSITION
SHAREHOLDER AS A CUSTOMER OF AGENCY AND SHALL USE REASONABLE
EFFORTS TO MINIMIZE ANY DISRUPTION IN WATER SERVICE.
(b) Golf Course Lease.
Shareholder currently leases certain real property to The O'Donnell Golf'
Club ("O'Donnell") pursuant to the terns of a long term lease and O'Donnell has received
irrigation water service from the Company as the lessee of the real property. As of the Closing,
O'Donnell will no longer receive water service from the Company and any continuation of water
service will be solely determined based upon a written agreement between the Agency and.
O'Donnell on terms which are mutually satisfactory to the parties. Agency acknowledges that
water service from the Agency is available to O'Donnell utilizing potable water in accordance
with Agency's regular rates, regulations and terms of service. Shareholder acknowledges that
any rights or obligations associated with the use of the Shares by O'Domnell is solely a matter
between the Shareholder, as lessor, and O'Donnell, as lessee, and Agency does not assume any
liability or obligation with respect to such rights or obligations or the failure of O'Donnell to
continue to receive irrigation water service.
R VB US',UPRICE 735540.3 4
S. lndenmification.
Prom and after the Closing, Shareholder shall indemnify, defend and hold
harmless Agency and its successors and assigns against and from all Damages (as defined below)
sustained or incurred by any of them resulting from or arising out of or by virtue of any (i)
inaccuracy in or breach of any rcprescntation or warranty made by such Shareholder in this
Agreement; or (ii) any claim or demand made by O'Donnell with respect to the ownership and
sale of the Shares by Shareholder.
9. Arbitration of Disputes.
(a) Bindin..g.Arhitration. The submission to arbitration in accordance with the
terms hereof shall be the sole and exclusive method, means, and procedure to resolve any dispute
between Agency and Shareholder arising out of this Agreement. The parties hereto agree that
upon the occurrence of a dispute, either party may require that the dispute be submitted to
arbitration in accordance with the terms of this Section 11 if not resolved amongst the parties
within a conciliation period of ten business (10) days, in addition to the time period specified in
subdivision (f) of Section 10 hereinabove, as applicable. F.ach party may, by summary
proceedings, bring an action in court to compel arbitration of any Dispute.
(b) Waiver of Right to Litigate. The parties hereby irrevocably waive any and
all rights to resolve a dispute in a manner which is contrary to the provisions of this Section 11.
The parties shall at all times conduct themselves in strict, full, complete, and timely accordance
with the terms of this Section I 1 and all attempts to circumvent the terms of this Section I 1 shall
be null and void and of no force or effect whatsoever. Notwithstanding the election by the
parties to arbitrate their disputes, nothing contained herein shall prevent a party from filing an
action in a court of competent jurisdiction to seek any form of equitable remedy or relief.
(c) Selection of Arbitrator. Any dispute shall be resolved by binding
arbitration before a retired judge of the Superior Court of the State of California (the
"Arbitrator") under the auspices of Judicial Arbitration & Mediation Services, Inc. ("JAMS") in
the County of Riverside, California. Such arbitration shall be initiated by the parties, or either of
them, within ten (10) days after either party sends written notice (the "Arbitration Notice") of a
demand to arbitrate by registered or certified mail to the other party and to JAMS. The
Arbitration Notice shall contain a description of the subject matter of the arbitration, the Dispute
with respect thereto, the aixrourrt involved, if any, and the remedy or determination sought. The
parties shall, within ten (10) days after the initiation of the arbitration, attempt to agree on a
retired judge from the JAMS panel in serve as the Arbitrator, if they are unable to so agree,
JAMS will provide a list of three available judges and each party may strike one. The remaining
judge (or if there are two, the one selected by JAMS) will serve as the Arbitrator. If JAMS shall
no longer exist or if JAMS fails or refuses to accept submission of the Dispute, the Dispute shall
be resolved by binding arbitration before the American Arbitration Association ("AAA") under
the AAA's commercial arbitration rules then in effect.
A Disalycry Procedures. The parties acknowledge that one of the purposes
of utilizing arbitration is to avoid lengthy and expensive discovery and allow for prompt
resolution of the dispute. The arbitrator shall have the power to limit or deny a request for
RVBUS\GPRICE\775540.3 5
documents or a deposition if the arbitrator detern7ines that the request exceeds those matters
which are directly relevant to the claims in controversy. The document demand and response
shall conform to Code of Civil Procedure section 1282.6. The deposition notice shall conform to
Code of Civil Procedure section 1283. The parties may make a motion for protective order or
motion to compel before the arbitrator with regard to the discovery, as provided in Code of Civil
Procedure.
(e) Arbitration Hearing. The arbitration hearing shall be held in Palm
Springs, California. Any party may be represented by counsel or other authorized representative.
The parties may oflar such evidence as is relevant and material to the dispute. The Arbitrator
shall be the judge of relevance and materiality.
(t) Arbitration Award, The Arbitrator shall issue the award as soon as
reasonably possible following the conclusion of the arbitration hearing, but in no event later than
thirty (30) days after the conclusion of the arbitration hearing. The Arbitrator's award shall be
based on the evidence introduced at the hearing, including all logical and reasonable inferences
therefrom. The Arbitrator may make any determination, and/or grant any remedy or relief that is
just and equitable; provided, however, in no event may the Arbitrator award punitive damages.
The award shall include an award for attorney fees and costs as permitted by Section 20. The
award must be based on, and accompanied by, a written statement of decision explaining the
factual and legal basis fir the award as to each of the principal controverted issues. The award
shall be conclusive, binding and not appealable, and it may therealler be confirmed as a
judgment by the Superior Court of the State of California, subject to challenge only on the
grounds set forth in California Code of Civil Procedure Section 1286,2, The validity and
enforceability of the Arbitrator's decision is to be determined exclusively by the California courts
pursuant to the provisions of this Agreement.
10. Entire AKreernent. This Agreement contains the entire understanding between
Agency and the Shareholder with respect to its subject matter, and supersedes all prior
agreements, oral or written, between the Agency and Shareholder.
11, Amendment. This Agreement cannot be amended except in a writing signed by
all of the parties, provided, however, that any amendment that is solely intended to add
shareholders of the Company to this Agreement or to add additional terns between the Agency
and an individual shareholder, shall only require the signature of the Agency and such
shareholder.
12. No Waiver. Any failure or delay on the part of either party to exercise any right
under this Agreement shall not constitute a waiver of the right, and shall not preclude such party
from exercising or enforcing the right, or any other provision of this Agreement, on any
subsequent occasion.
13. Notices. All notices or other communications required or desired to be given
pursuant to this Agreement shall be in writing and shall be hand-delivered, or sent by a reputable
overnight courier service providing delivery confirmation. Each such notice or communication
shall be deemed to be duly given when hand-delivered or one (1) day after being deposited for
next day delivery with Federal Express or other courier. The parties may agree to effect notice
RVBTJS\C1PR ICH:\7355403 6
by facsimile, however, any such notice shall not be deemed effective until receipt is confirmed
by return facsimile. Each such notice or communication shall be sent to the following addresses:
Agency: Desert Water Agency
Attn: David Luker
1200 Gene Autry Trail
Palm Springs, California 92264
Phone (760) 323-4971
Fax (760) 325-6505
With copy to: Best Best & Krieger LIT
Attn: Michael Riddell
P.O. Box 1028
3750 University Avenue
Riverside, California 92501
Phone (951) 686-1450
Fax: (951) 686-3083
Shareholder: City of Palm Springs
Attn: David Ready
Office of the City Manager
3200 E. Tahyuitz Canyon Way
P.O. Box 2743
Palm Springs, CA 92263-2743
Phone: (760) 323-8228
Fax: (760) 323-8207
With a copy to: Woodruff, Spradlin & Smart, P.C.
Attn: Douglas Holland
555 Anton Boulevard, Suite 1200
Costa Mesa, California 92626
Phone: (71.4) 558-7000
Fax: (714) 835-7787
14. Headings: Section References. Captions and headings appearing in this
Agreement are inserted solely as reference aids for the ease and convenience; they shall not be
deemed to define or limit the Scope or substance of the provisions they introduce, nor shall they
be used in construing the intent or effect of such provisions.
15. Scvcrability,. 11' any tern or provision of this Agreement shall be claimed by
either party to be invalid, void or unenforceable, the parties shall negotiate in good faith for not
less than ten (10) days to modify this Agreement so as to accomplish the original intent of the
parties in an acceptable manner. If there is no agreement, either party may bring an action at
law, in which the Court shall first determine whether this Agreement can and should be reformed
and performed by the parties, or whether this Agreement should be declared void and
unenforceable in its entirety, and in either event, to what extent an award should be made to any
party.
RVBUS\GPRICE`,735540.:3 7
16. Binding Effect and Assi rtu�Went. This Agreement shall be binding on and inure to
the benefit of the parties, and their respective successors and assigns. Shareholder may not
assign this Agreement without the consent of Agency. Agency shall not assign this Agreement
to any third party without the consent of Shareholder.
17. Attorneys Fees. In the event that any action or arbitration is brought to enforce
one or more of the terms of this Agreement, to restrain an alleged violation of this Agreement, or
to determine the validity of this Agreement or any part thereof, the prevailing party in any such
action or arbitration shall be entitled to recover from the other its reasonable costs and expenses,
including without limitation, expert fees and attorneys' fees, in addition to any other remedies
available to it in law or equity. il'both parties are successfiil in one or more causes of action
during any such proceeding, the costs and fees shall be apportioned as determined by the court or
arbitrator.
18. Governing Law and Venue. This Agreement is a contract governed in accordance
with the laws of the State of California. THE PARTIES HEREBY AGREE THAT VENUE
FOR ANY ACTION BROUGHT TO ENFORCE THE TERMS OF THIS AGREEMENT
SHALL BE IN A COURT OF COMPETENT JURISDICTION IN THE COUNTY OF
RIVERSIDE, CALIFORNIA, AND CONSENT TO THE JURISDICTION THEREOF,
19. Counterparts. 'Phis Agreement may be executed in one or more counterparts, each
of which shall constitute an original.
[signature pages fallow/
R V HUs,(iPRrCE\775540.3
IN WITNESS WHEREOF, the parties have executed this agrte iient as of the date this
Agreement is signed by the Shareholder as set forth below.
AGENCY:
DESERT WATER AGENCY,
a public agency
By: l ^
Namc: Patricia G. O gar
Title: President of the Board
Approved as to form:
By:
Glen W. Price, Partner
Best Best& Krieger LLP
ATTEST: SHAREHOLDER:
CITY OF PALM SPRINGS
a municipal corporation
ty Glerk
\ APPROVED BY CITY COUNCIL
11 ` Name: David H. eady
1X' 1 10 JQ Title: City Manager
Approved as to
By
Dougl s Holland, Attorney
Woo rul7'Spradlin& Smart, Y.C.
R V RUS\(7PR10E\795540.3 9
IN WITNESS WHEREOF, the parties have executed this agreement as of the date this
Agreement is signed by the Shareholder as set forth below.
AGENCY:
DESERT WATER AGENCY,
a public agency
By:
Name: Patricia G. Oygar
Title: Preside4B ,
Approv
By:
ner
e er LLP
SHAREHOLDER:
ATTEST. CI.1'Y OF PALM SPRINGS
a municipal corporation
ity lerk � By: ._..._ �?��
Name; David H. Rea
APPROVED BY CITY ,OUPdC!L Titles City Manager
� 1 ,a n Deb Approved a
s to,,6qn
By:
Doug] Tolland, Attorney
Woo ruff Spradlin & Smart, P.C.
RVB1 GMIC Rr'155-p1,; r,
EXHIBIT"A„
Name of Shareholder Certificate No. No. of Shares
City of Palm Springs 801 15
City ol'Palm Springs 1066 650
City of Palm Springs 1294 100
City of Palm Springs 2775 10
RVBUS\GPRICG\7155403 10
EXHIBIT `B"
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
AND SECTION 35 NOTICE TO WHITEWATER MUTUAL WATER COMPANY
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto Desert
Water Agency all of the common stock of Whilewater Mutual Water Company, Inc., a California
corporation, standing in the name of the undersigned on the books of said Corporation, including
without limitation, the 775 shares of common stock described on Certificate No(s). 801, 1066,
1294 and 2775, and do hereby irrevocably constitute and appoint the duly elected Secretary of
the Corporation as attorney to transl'er said stock on the books of the within-named. Corporation
with full power of substitution.
FURTHERMORE, Pursuant to Section 35 of the Bylaws of Whitewater Mutual Water Company,
this is to notify you that the undersigned hereby waives and abandons all rights to receive water
from the Whitewato-Mutual Water Company on any and all properties with respect to the shares
described herein.
DATED: fr\! V:A 2010
CITY OF PALM SPRINGS
ATTEST: a Municipal corporation
.9
By: - -
j ity Jerk
C� APPROVED BY CITY COUNCIL Name: David H. Re y
P`Nb` Title: City Manager
Approv4as :and, Attorney
adlin & Smart, P.C.
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Shares of Stack within mentioned and hereby authorize ... ... ............................... ............
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to make the necessary transfer on the Books of the Corporation. r
Witness.----M_y---------hand and seal this------- ..1. .--- ---------------------------- -day of
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