HomeMy WebLinkAboutD-1812-06 Indpls Water Lines
SPONSOR: Councilor Sharp
ORDINAt~CED-1812-06
AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL,
L.~DIANA APPROVING THE ASSET PURCHASE AGREEMENT BY AND BETWEEN
THE CITY OF CARMEL, HAMILTON COUNTY, INDIANA, AND THE
CONSOLIDATED CITY OF INDIANAPOLIS, MARION COUNTY, INDIANA, AND ITS
DEPARTMENT OF WATERWORKS
WHEREAS, the City of Carmel, Hamilton County, Indiana (the "City") is governed by
the Mayor (the "Mayor") and the Common Council (the "Council");
WHEREAS, pursuant to Indiana Code SS 8-1.5 et seq., the City owns, operates, manages
and controls a water utility;
WHEREAS, pursuant to Indiana Code SS 36-9-2-14 and -18, the City is authorized to
regulate the furnishing of water to the public inside and within four (4) miles outside its
corporate limits;
WHEREAS, pursuant to Indiana Code SS 36-9-2-15 and -18, the City is authorized to
regulate the furnishing of utility service to the public inside and within four (4) miles outside its
corporate limits;
WHEREAS, the General Assembly has clearly articulated and affirmatively expressed
its intention that Indiana municipalities have the right to regulate the furnishing of water utility
service within their corporate boundaries, but also, as a foreseeable result of such authority, the
right to regulate the furnishing of water utility service in unincorporated areas within four (4)
miles of their corporate boundaries;
WHEREAS, all of Clay Township is located within four (4) miles of the City's existing
corporate limits;
WHEREAS, the Council has heretofore adopted Resolution No. CC-12-26-01-01, which
authorized the Mayor and the Director of Utilities to investigate and negotiate the acquisition of
certain water utility assets owned by the Consolidated City of Indianapolis, Marion County,
Indiana and its Department of Waterworks (collectively referred to herein as, "Indianapolis"),
and used in the provision of water utility service to customers located within Clay Township,
Hamilton County, Indiana ("Clay Township") and inside the corporate limits of the City (the
"Carmel Assets"), which assets are defined in the Asset Purchase Agreement attached hereto as
Exhibit A;
WHEREAS, on March 15, 2002, the City entered into an agreement with Indianapolis,
wherein Indianapolis agreed to sell and the City agreed to purchase the Carmel Assets;
1
WHEREAS, on November 3, 2005, the City and Indianapolis entered into a Memo of
Understanding, wherein the City and Indianapolis agreed to a purchase price for the Carmel
Assets and to the general terms and conditions upon which the Carmel Assets will be transferred
from Indianapolis to the City;
WHEREAS, the purchase of the Carmel Assets will be documented by the execution of
a certain purchase agreement (the "Asset Purchase Agreement"), by and between Indianapolis
. and the City, in the substantially final form attached hereto as Exhibit A; and
WHEREAS, this Council desires to authorize the execution of such form of the Asset
Purchase Agreement and related actions thereto in order to permit the City to purchase the
Carmel Assets. .
NOW, THEREFORE, be it ordained by the Common Council of the City of Carmel,
Hamilton County, Indiana, as follows:
Section 1. The Asset Purchase Agreement, in the substantially final form attached
hereto as Exhibit A, is hereby authorized and approved. The Mayor is authorized to approve
non-substantial changes in form or substance to the Asset Purchase Agreement as may be
necessary or appropriate to accomplish the purposes of this Ordinance, with any such approval to
be conclusively evidenced by the authorized execution of such Asset Purchase Agreement.
Section 2. Each of the Mayor, the Council President and the Clerk-Treasurer, and
any other previously legally authorized officer, employee or agent of the City is hereby
authorized and directed, for and on behalf of the City, to execute and deliver any certificate,
instrument or other document and to take any and all action as such person determines to be
necessary or appropriate to accomplish the purchase of the Carmel Assets, such determination to
be conclusively evidenced by such person's execution of such certificate, instrument or other
document or such person's taking of such action.
Section 3. Each and every action heretofore taken to acquire the Carmel Assets,
including but not limited to the March 15, 2002 Agreement, the November 3, 2005 Memo of
Understanding, and all other negotiations are hereby ratified and each of the Mayor, the Council
President and the Clerk-Treasurer, and any other previously legally authorized officer, employee
or agent of the City is hereby authorized and directed, for and on behalf of the City, to execute
and deliver any certificate, instrument or other document and to take any and all action as such
person determines to be necessary or appropriate to dismiss all outstanding actions concerning
the Carmel assets, including but not limited to Indiana Utility Regulatory Commission Cause No.
42725, Marion County Superior Court Cause No. 49D07-0409-PL-001764, and Indiana Court of
Appeals Cause No. 93A02-0503-EX-194, and to withdraw the Notice of Tort Claim the City
filed against the Consolidated City of Indianapolis on or about March 18, 2005.
Section 4. On and after the date of the closing of the transaction contemplated by this
Ordinance, consistent with the grant of authority set forth in Indiana Code SS 36-9-2-14, -15 and
-18, the City hereby regulates the furnishing of water to require that all retail water utility service
2
within Clay Township, shall be furnished by the City, and that no other provider of water utility
service shall furnish retail water utility service in Clay Township. .
Section 5. This Ordinance shall be in full force and effect from and after its passage
and signing by the Mayor.
. A
PASSED by the Common Council of the City of Carmel, Indiana this L day of
~""'-. \.. ,2006, by a vote of .s- ayes and --E..nayes. .
3
COMMON COUNCIL FOR THE CITY OF CARMEL, INDI
~~ '
ring Officer
;-t.-
to the Mayor of the City of Carmel, Indiana this L day of
,2006, atS"..30 1. ~
Diana L. Cordray, IAMC, Clerk-Treas er
Approved by me, Mayor of the City of Carm ,Indiana, this I~ ~day of~ . A. 0 ,
2006, at3".oo f. M. ~
Richard L. Sharp, E esident Pro Tempore
~~
onald E. Carter .
Presented by me
~
Prepared by:
N'lll f) ltESe:J...Ji'
Kevin Kirby
Ai 0,. Pfl es ESA-'1
Brian D. Mayo
af~
Mark Rattermann
~
Ja es Brainard, Mayor
Rando h L. eger
BINGHA CHALE LLP
2700 Market Tower
1 0 West Market Street
Indianapolis, Indiana 46204
904810.53307//1012962.2
4
(') ::<';-.1
~ -I :.....,
~ -<
.... "
'" 0 "~" ~
0- " ""Tl ,
"
~ c
i~ .... (')
,. r=
d =; )> ....,
% " ::u
0 ~~" ~ -<
~ 5~' ::; .. s:
Ii 1.:>< ("") f'TI
~ ~~,~!i 0
c r
~ i~~5 Ui
S :,~:: =;
'p 0 Z
z 0
, - "" ~-
! .. )>
"
'" Z
.. )>
't,;;
~! 1$
~ 1 5
~ ~
~ ~
~'
1
"
-'1
)Ji
"
:~~
, '.-
"
/-,
~i Lt
',t,
:f?(,r::~i "',
~/j: ",ss~;~c~< 'e
(.-.)....
-,...
--'-'
~ _. ir:;
.,!-,.
':1
.,----.../
! ": ~
{:~q:!'l:
t, "
I
) ~
n~_~I"""""'''_OOO
'lI<n>/OlC
\
~~.
~ ~-
a t
.-' \ \~
:;, "" 10; llJ-
<\.' .~,""".
0'0' ') <"J~
l~~ ~ ~ ~
- ..
~~ .,. ~ ~
!i~ .g l
~"'Ja
~i,'>
~l
.-
.
<"J:";;;;
~~ '
Il.~' 0'
LY
l~ -\
7"'-
~
<
~
.
.
~[
~j-
~~
,.!
~,
"'.
<,')~.
~ .
~
~t:l~~:"
~;::;f!.<:l~
S"!;!.....".
"" OIiQa..
~ ~"<~~
!l !~~~.
-~.:j<'
~~lt~},.
~ ~~10"~
~~i:Q1~
. ~,
~..O'
~
~
~
€;
~ ~
. "
-~ ~~
U ~,
p; !H;:
~ i!it~
g ~~: ~
~ ~~i'~
"
"r
F
(")
_-I
:;;:-<
S'o
~"T1
"
c(")
~l>
c;:O
ills::
om
",r
c.
z_
~z
::!o
0-
zl>
Z
l>
~[5.~
S~O'f!
~-8 %
~ a
$
~
Q1lf~''-
~~ ~.f?~
"'"~ 01 <::l
~~ ~Il.~'
","},.ll ~O'
O.~5.~ ~...
<f>,.., Q'~
S s';:;<s- ~ _
~{l ~ Il.~
@
~O'
f!
.~
[
..~
~9.<::l
,!S'
.~ ,
~~~
~~{
fl..,., 0'
~~
~.
q.
lJ
Cil
."
'"
Cil
0.
0"
':<i
b
::l
0.
o
::l
:E
~
Gl
a
c
J'
r-
r-
o
<...
c
::l
'"
."
I\)
o
o
m
)>
-f -f-;8:
~ ::::3'"::::3'";:::;:
p"!1'ctl P"fU Ctl 6) CD 0'
0. )> 0.,,0::::1
Z Z -. en:;:' co l:: t1:I
~ ~ ~~o. <Q.~ a~sz
Ctlro-O Dl 39-
coro-o=r'mguc-coro
a.a.~ 5l Q.ro~ CD..... C/J
-0-03<1l:T 3!!l.'"
"'O::J"'C'OQ,lco2cocotu
C:tu::::l(l)~5e.::::I':::;:..8
- < - c: en (f) - g, ~.
:TcoS@~oo(J)"",
mo.-- ....--o~
c: ctl ::::I "< 0' c: 5-
_g9:a.....:J-.Ol::E
=: ;Ol 0 I>> a. Dl < =:
~ ~- ~ a :J ~ ~ 2. ~
(/)<"0_0):0="'00.0
..... _. 00 a...... 0 tu :J
1llC"l=....o.;::::O:=:J='
- ro (J) ~. ;::;.' :;' Ul :::::l
m n -~ O'lC -c.'" C
OOCD:::I~ O~CD
tu < .... ..... Q) C".... c'_
:Jco5-_-o:rtf.lO
Q.PJ co ::TQ.:J CD -3"0
(") to C/J CD <tl a.. en ro
::rCDCOrog:C")CO~'<
~ -'D) C/J C/J 0 Q) _ ~
(Q:J(I)CDCOCCfJ_CO
co ~ ~ < :< ~ ~ ~ .....
(J)--ro-'CO_:rDl
C-CD(I) (")-(1)0-
ctl_ ..... (0-..... CD
-N~.8.....::::!:CD~cn
OOl(/)c:Cl):Jo. _
CD ~ 0 :;' ~ ~ c: D) Q
_ 0 Q.l Ctl (') (") _
::r0'" 3 < -, '" "':;:
CD-(/) cnO:lQ.U)Q.l
_c.c;;'~ -;0 om
5.~CD-5C.g..........
iii' - c. ~ a. :so - ;g: ~
:J~()NO~SCDo
w<~~oc-~""'(')_::r
S(i"3gCD=;-lU~~
ECD~aCDffi3'<ro
-< r -.-~-CD re c.
.&;:::::1 Q) CD _..... _.
JJ..J::o. - 0" CD -. en :J
CD(J1::r =~:::::l.w
cg.o~ ~g::T 8
iUOQ Cl)::sro 0
o8~ 0.0..0' a.
..,-:;: ~35'- '"
"<;~ -. en 0 ::J
(')D)t5 Q)C~. 2
O~ <: ?< D) :J
3 < ",::l lC '!1,
3 ~ 52:e ::T
00' !of! c:-.e1 -::r
~. ~~ CIJ ....
o " '..
:J g.g: ~
E 9:'0 !a.'
"'T'l (I) g 5'
~ <1l lC
..9 $, ~ 5"
:J ~ ~ Q.
o II 9 53'
~ ~g ~
~ 008 Q.
o' g 05'
~ g N
~ 0 CD
ei (J) S'
rn !a ~
::l '"
<1l CI)
CD a:
g. ~
0. 0
~
r-
_~<1l
I\) ~lC
--<1l
, , ::l
0)>0.
~ ~ ~
-- - c
::::03
~.; ::;-
st :..... co
o CD""
s.c..uoo
~CD
mc-;::.g
~ =.:: 0
m 0: 8
~:J~
ClCO
~m_
~gc
:J C/J 5-
U) 0 en
0. - :;:
C :;: ""
:!. Q) :J'"
c5 ~ Q)
~!a~
"'",,<
=t -0 CD
'" ~ '"
::l <1l ~
"'0.-
a:!E.~
o '" 3
::l ~
." 2,
<1l ::l
::::!. CD
o 0.
P-",
::l
::l
C
!!!.
3
~
3'
c
3
iii
'"
'"
0.
o
:;:
::l
o
<
'"
~
c.n
'<
'"
'"
iil
'"
::l
0.
o
'"
3
~
-
~
'"
::l
~
0'
::l
."
~
0'
s,
a
:r
0.
OJ'
::l
'"
."
Q.
ii)~
"
c
~
<il
a
~
m)>
"'."
=."'0
3 ~
'" ~
c; 3'
c.",
0-
o <1l
'" Z
-"
lJ3
'" 0"
;;~
-@g,
<' m
"'..0
iDe
=. <'
'"
OiD
~3.
co
3 !ii
~ 0
3
'"
iil
)>
,.,
..0
E,
Cil
0.
'"
I\) CD
.......-W
m~
m<.O
'"
Ji
z
~
:l>
,.,
..0
"
~
0'
::l
o
o
!!l.
0'
~
~
-<
)>
'"
'"
<1l
en
r-
<1l
'"
'"
:E
!!i
<1l
~
lJ
c
n
::r
'"
'"
'"
o
Cil
g
o
!;i
5'
lC
-i
iil
::l
~
0'
::l
:@
~
<.0
<.0
c.n
"co
<I1
~
lJ
Cil
'"
'"
a
<
'"
c
'"
S.
o
'"
'"
::r
."
i5'
:;:
"'0
'"
'<
3
<1l
::l
en
~
~
-
'"
I\)
w
"0
~
<I1
.....
I\)
o
-i
o
~
o
'"
'"
::r
lJ
'"
'<
3
<1l
::l
en
0'
:r
0.
iii'
::l
'"
."
Q.
Ui'
:E
'"
~
~ ~i
~
'"
iil
(f)1\)
<1l r\,
2,0
)>
::l
::l
C
e!.
lJ
~
3
<1l
::l
en
s.
'"
<.0
o
o
"0
o
o
o~
s::Q
o 0
:J ~_
-::l
~(,Q
lJ
~
3
'"
::l
en
s.
:1
m
c.n
"0
o
o
a,
o
o
"0
o
o
r:~ '"
mw
<I1<I1
00
0.0
00
00
'"
I\)
"0
o
o
"0
o
o
lJ
'"
'<
3
'"
::l
en
-
o
:r
0.
iii'
::l
'"
."
Q.
vr
:E
'"
c;
"
-<
<1l
!!l
~
:l>
"
..0
"
~
0'
::l
)>
::l
'"
-<
'"
Ui'
o
mili()
x,< '"
~--l3
c 0 <1l
=-:E -
~ i1l :E
",:r.e
c." <1l
3r-~
35' 5
III rn :;
-< --<
a
3
s
0.
iii'
::l
'"
."
Q.
Ui'
:E
'"
~
"U
~
'"
"0
"
;;;
a.
0"
':'S
c-
o
=>
a.
o
=>
::E
~
G)
~
o
c
J:>
c-
c-
(")
<..
c
=>
Cll
:"
'"
o
o
en
--i --i--i
:;;r :;;r:;;r
~~ CD ~ Q) Ctl..... CD
zz9: )>~9:~g
OOCi)"E~~~~~
:::::I:J C')..., a.-"" ~". 0
co en ..... n .... ....
CD ctl "'C ::r C'D :::::I"C C'" 3
a.c.~ ~ a.f6~ m ~
083CD:T23;~
"'C ::J'" CD PJ ctl (/) ctl _ 0
cCJ.3.(j):::::ICj)aO'..c
-<_c::~_-o;:::+~.
stCDOma.o en-.
coo.-.:< ...._.....ctl
c::(l)5. oc::.=3oo.
"'_."Dl-.0"0 ....:::::1 9:0):E
PJ Co D:l < =
~~~5.::I~~Q.~
en =2 "'0 ..... Dl <:: "C a. 0
..., -. 00 a. :::::1.0 CJ a
el.giF2g:::!:~:::::I5'
rnno-<c)"~-Q)C::
DlO<-.ro:Jw O.Q:CD
"""tPJO'""""tt::.....
:::::I<O:;"",-o9-(/)o
Coo; CD ::J"'Q,::I CD 3--0
OCCU)CDCDQ.(I) III
::rroC'D....O"C")([)co'<
~ _. PJ rn ; 0 PJ ~ .....
co :::::I en CD CD c: VI ..... ::r
CD .., cn < < :::::I cn 0 CD
CI) a ~ CD -. ~ ffi. :T D3
0" CD Ul .., Q - (/) 0 .....
CD t'l, "" ''':...,.., CI) CD
-N~..Q.... -.co CD en
oc.nu)cCD:::::Ia. 0'
@ ~ 0 ~.~ ~ ~ ~..,
:T 0 ~ CD3 < n.m $ ~
m-cn roD:lQ.VlQ)
~g-~~2'P;C')oro
a._-.O"_ CD""':::::I a.g..,..,
CJ a.iflo.~.-~-g
::lm()No~omr3
PJ<~~crw"'C1-::J'"
C,r3 8m =tPJ.S:!!~
~CD~OCD5i3'<CD
.:c: I -,- ~ ...... CD re c-
oER:::::I ro CD -.... -.
:0 .::.. c-!D -. (I) ::J
(i) 01:T =-= ::I. Q)
~~o('p ~g:T g
p;OQ (t):::::ICD 0
ogg: a.~o a.
-::E -:::::I - Q)
-<'(6-- 3[1)o::J
(")PJc6 ~. ~~. 0
o...:J.. < CJ:::::I CD
3 < ,,=> re ;;.
3 ~ 5~:E s:
v)" ~ c:-~ ~
(I) ro~r.n....
0' -........ CD
:J g- ~ ~
E go ~.
::0 m g :i"
!} s.~ ~
:J 2~ a.
o II 0 iii'
PJ .00"0 a1
a. ...... a "'C
g: 1:0 .9 Q.
o' g ~.
~ ""0 e
g '"
lJ) or
!e. S:
3l "
a: 5.
~ (")
Q "
3
~
~
iil
co
lJ)
=>
Cll
Cll
a.
~
)> c-
o. __ctl
a. I\;l...... (C
;:;: --m
g' (") ~ 5-
~~g~
z::;.;-c:
0-03
m ~. 0; 5'
C/') :T :.... co
o eo""
5.wm
Dl-eo
~g:?J.
'< =: 0
Dl 0 0
.Q.:JU)
c' co ;
lJ)" _
~g2'
::l C/') 5.
en 0 C/l
a.-,.
c: :E;:;:
::l. p) ::r
r.a ~ OJ
sa~
Cll",<
~"'C CD
" ~ Dl
=> '" ~
~. g- CD
g'm 3
=> ~
"0 ~.
Cll =>
6' ~
P-"
=>
=>
c
!!!.
3
"
x
~r
c
3
or
".
eo
a.
o
,.
=>
o
<
Cll
~
'"
'<
Cll
"
Ul
~
Dl
=>
~.
0.
=>
"0
Cll
~
0.
.2;
eo.
5"
a.
or
=>
"
"0
Q.
iii~
n
"
~
Cll
a
m)>
lJ)"O
=-. "'C
3 ~
" ~
co 3.
a."
(")-
o eo
lJ) Z
- c
"U3
~ 0"
m~
-@s.
<;' m
".n
me
:J :;:;:'
- "
(")m
~ 3-
C;(")
3 5i
~ 0
3
eo
~
lJ)
)>
n
.n
c
".
eo
a.
'"
'" eo
.....w
"'~
"'~
Z
!P.
)>
n
.n
c
[
0.
=>
(")
o
~
Q
~
~
)>
lJ)
lJ)
Cll
in
~
eo
Co
~
~
-....
en
'"
c-
eo
lJ)
lJ)
::E
Dl
co
~
"U
c
n
:;;r
"
lJ)
'"
(")
;;;
~
o
"
:S.
re
--i
iil
=>
~
0.
=>
g
"1J
~
Cll
lJ)
Cll
a
<
"
c
Cll
Q.
(")
Dl
<J)
:;;r
."
5"
,.
"1J
Dl
'<
3
.Cll
::J
in
~
~
~
~;
'"
'"
'"
Co
~
'"
-....
'"
o
--i
o
al
(")
Dl
lJ)
:;;r
"1J
Dl
'<
3
Cll
=>
in
c;
5"
a.
0;.
=>
Dl
"0
Q.
1ii.
::E
eo.
Cll
~
rl
(f)
Cll
~.
)>
=>
=>
c
!!!.
"U
~
3
eo
=>
in
Q.
'"
~
o
o
Co
o
o
~
"
~
<J)
'" ~ )>
r\J 0-
o ~Q
00
=> lJ)
g :5"
",re
"1J
Dl
'<
3
Cll
=>
(ii
Q.
~
en
'"
'0
o
o
0,
o
o
Co
o
o
-~ '"
en '"
"''''
00
o~o
00
00
'"
....
N
o
o
Co
o
o
'"
'"
Co
o
o
Co
o
o
"U
Dl
'<
3
'"
=>
in
c;
5"
a.
0;.
=>
"
"0
Q.
1ii.
::E
Dl
~
~
"
~
)>
n
.n
c
~
0.
=>
)>
=>
Dl
'"
lJ)
1ii.
(")
mii)(')
X,< Dl
Cll --i ~
n 0 3
a:E~
C5~~
(.f):r.~
c -0 '"
3 c- ~
3 :S. ~
tL) m =
-< --<
a
3
5"
a.
0;.
=>
Dl
"0
Q.
1ii.
::E
Dl
~
-0
~
CD
"0
'"
m
a.
0"
':'i
b
::>
a.
o
"
:E
:;;
CD
Gl
a
c:
}'
r-
r-
o
<..
c:
"
CD
,"
'"
o
o
m
-i -i-i
::T ::T::T
!J~CD P"?3CDOlctl
zzc.. :t>(ii"9:AO
00 ::;''''C < (f) "'<l> CD 5i
<l> c: 0
~ ~ n .., -. C (") 1Il- 0
CDCD-t")~~.;: 3
ctl co""C :::r '... '-' C"
Q.a.JEtuIllOoOPlCDCD
--. _<D'<~tD
oo3CO:Tn3
CD Q) ct> 0 CD ro Q)
-g~~(J):JS:l::l=.2
-<-c::CDVJ-Oc
:TCDOro~Ooa-~'
mg.5'-<'_'""5"oc.
S.g9:crQ59:Q)~
=CJ)~Otl:.c.Cll<=
-<tro~5.:JCD:JO-
1Il<-6_",~~a:g
... -'0 0 a.:::!.Q.Q) 3.
ag =n g:=:!"'ui":J:i"
mC')~~5'c5-roc
".o<Q!E:J~ O.Q:1'tl
- " l>> C".... c: .-
:JCDS---O:T{I)O
O'.....co:::ra.:Jro-3"O
(') IJ,) (J) (1) CD c.. tr.I tl)
:::r~mCDgoCD~'<
Pl -. Q) (J) (j) c:0 Q) ... :T
ca :J (fJ CD CD :J CJ) 0 CD
rnem.~s'~~:T@
O"'CDCJ)..,2~UloCD
ctl_Q:l ctl _... (I) (I)
O'l\:lur..cmS'CDm
..,U'lOC(I)Q)Q...,o
CD ~ ~. CD :J c: IJ,) ..,
... 0 Q) CD n C") .-
::T 0 III 3 < -. <l> <l> :E
CD-~'<Dm~a.(/)a
-Q.(fJ:J-l>>C10<tl
5.~ro-5C.~""'"
or - Q.iA a.:S. - ~-g
::J(I)()N-o(/)oC6""
/,\, <D Pl 00 (')
-<.....- C"~....()-::r
Co-'3 O(t) -Q)~Q)
- a......... en
=CD~OCD5i3'<CD
-< I _.- ~ .... CD re a.
(,9:J Q) CD _.., :::;:'
:0.:::..- crCD CI'J....
<D O1::r = - :J. Ol
cg_o~ ~g:T g
~oo (t):JCD 0
og~ o.~o a.
-:E -:J - Q)
-< ~ -. 3 (/) 0- ::I
o Q) t5 ~. ~~. (')
o..:!.. < W:J CD
3 '" ",,,<0 :E
3 ~ 5g:e ~
CiS" ~ c: -~ =:.
~. e. ~ (/) :;:
o '. '...
:J g- ~ m
- 0-- X
E _0 ~
::D ~ 8 :i"
9 S. ~ <0
ON 5'
CD 0 a.
II 0 fi)'
fAO :J
~.o ~
enS Q.
g ~.
b e
g CD
III or
!a 9:
~ '"
a: a
2. 0
Q '"
3
~
~
"
o
'"
a.
g:
o'
"
!!!.
~
'"
'"
III
"
<l>
CD
a.
CD
a.
)> r-
a. __co
~ .GL:= <g
, , "
~r ('):>0..
~~g~
z::;;-c
0-03
CD ~, ~ S'
en :T :..... CO
o co"'"
S,wo,
",~co
~ ~~
~gg
c' (Q 0-
1Il",_
3=-
ctl g t:
afJJ5.
III 0 III
o.-:E
c :E' ;:::;.:
=:.S:U ::r
r.5 ~ Dl
:Ta~
CD",,<
::::t"'O CD
'" ~ '"
" <l> ~
!:2. g. m-
g. CO 3
" ~
"03
<l> -.
:::!. l6
o a.
""",
"
"
e::
!!!.
3
~.
3
c:
3
'"
"
CD
a.
o
:E
"
o
<
<l>
~
Ul
'<
<l>
OJ
iil
~
OJ
::>
~
o'
"
"0
<l>
~
o'
.eo
el.
5"
a.
0;'
"
'"
"0
Q.
Ui~
o
e::
~
~
<l>
a
m)>
III "0
:=."0
3 ~
OJ ~
CD ~~r
a.'"
0-
o CD
IIlZ
-c:
-03
CD 0"
~ <l>
m~
D 0
c: _
<' m
"'D
me::
a:;;:'
o!!!.
c: CD
III a
00
35i
~ 8"
3
<l>
~
III
)>
o
D
c:
",.
<l>
a.
...
"'co
:""''''w
m~
m~
z
~
)>
o
D
c:
~
o'
"
o
o
!!!
i5'
~
~
-<
)>
III
III
<l>
(if
."
~
co
"'0
~
~
....
m
Ul
r-
CD
III
III
:E
el.
~
-0
c:
n
::T
'"
III
<l>
(")
m
g:
CI
c:
~
S'
<0
-i
OJ
"
~:
o'
"
:@
~
~
I
-0
m
III
<l>
a
<
'"
1:
<l>
Q.
o
'"
<n
::T
."
0"
:E
-0
'"
'<
3
<l>
"
(if
."
'"
'"
':1
Ul
~
o
-i
o
~
o
'"
III
::T
-0
~
3
<l>
"
(if
o
5"
a.
0;'
"
'"
"0
Q.
or
:E
el.
~
~ f!
-<
<l>
'"
iil
(f)'"
<l> N
~. 0
)>
"
::>
c:
!!!.
-0
'"
'<
3
<l>
"
(if
Q.
."
~
o
o
"'0
o
o
o~
s:Q
00
:J ~.
-",
~cc
-0
'"
'<
3
<l>
"
en
Q.
."
~
Q)
Ul
'0
o
o
.co
o
o
'0
o
o
r:~-Ei>
m '"
UlUl
00
0.0
00
00
-Ei>
'"
"'0
o
o
"'0
o
o
-0
'"
'<
3
CD
::>
(if
o
5"
a.
0;'
"
OJ
"0
Q.
iii'
:E
'"
~
-<
<l>
~
~
)>
o
D
c:
[
o'
"
)>
"
'"
-<
III
iii'
(")
miilO
x,< '"
<l> -i ~
003
a.. ~ ~
ca iil :E
C/)2:~
e:: -0 <l>
3 r ~
3 S' ~
III m ~
-< --<
a
3
5"
a.
0;'
=>
'"
-0
Q.
iii'
:E
'"
'"
~
"
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), made and entered into by
and among the Consolidated City of Indianapolis, Marion County, Indiana (the "City"), the
Department of Waterworks of the Consolidated City of Indianapolis, Marion County, Indiana
(the "Department of Waterworks") (the City and the Department of Waterworks, each a "Seller"
and, collectively, "SeJlers"), and the City of Carmel, Hamilton County, Indiana ("Buyer"),
WITNESSETH THAT:
WHEREAS, Sellers own, among other assets, (i) certain water lines, mains, hydrants,
valves and meters used to provide water utility service to certain <:ustomers located within Clay
Township, Hamilton County, Indiana, which water lines, mains, hydrants, valves and meters are
located in Clay township and are generally depicted in blue and yellow on the map attached
hereto as Exhibit A (such area of Clay Township identified on Exhibit A, as the "Acquired
Service Area") (aJl water lines, mains, hydrants, valves and meters used to provide water utility
service to customers in the Acquired Service Area, except those specifically depicted in yeJlow
on Exhibit A, are defined as the "Water Line Assets"; the customers served by the Department of
Waterworks in the Acquired Service Area are defined as the "Carmel Customers"), and (ii)
certain easements and rights-of-way relating to the Water Line Assets, which easements and
rights-of-way are described on Exhibit B hereto (such identified easements and rights-of-way,
collectively, the "Easements"); and
WHEREAS, on November 3, 2005, the parties hereto entered into a handwritten
Memorandum of Understanding (the "MOD") regarding the sale of the Acquired Assets, as
defined in Section 1, from SeJlers to Buyer, and
WHEREAS, the parties intend this Agreement to be the binding defmitive agreement
contemplated by the MOD for the sale and conveyance of the Acquired Assets, as defined in
Section 1, from Sellers to Buyer;
NOW, THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which bereby are acknowledged, tbe parties hereby
agree as follows:
1. Sale of Assets,
(a) Sellers hereby sell, transfer, assign, and convey to Buyer, all of Sellers' right, title
and interest in, to and under all of the following assets (collectively referred to as
the "Acquired Assets") for the purchase price specified in Section 4:
(1) The Water Line Assets;
(2) The Easements;
(3) The Carmel Customers, including all customer lists, billing records,
customer deposits, customer advances and other materials related to the
Carmel Customers;
(4) All right of way permits and any other permits, licenses, and approvals
necessary for the operation of the Acquired Assets, including, without
limitation, those permits, licenses, and certificates listed in Schedule
l(a)(4), (the "Permits"), to the extent assignable;
(5) All area rate project contracts (the "Rule 12(P) Contracts") and all
developer contracts relating to the operation of the Acquired Assets as
specifically listed or described in Section 3; and
(6) Any existing maps showing valve locations and hydrant locations,
maintenance records, and all other records pertaining to the Acquired
Assets in digital and hardcopy format where available.
(b) . Concurrently herewith, the City will execute and deliver one or more assignments
of the Easements for recordation in the Office of the Recorder of Hamilton
County, Indiana (the co~ts of which shall be paid by Buyer), in the form attached
hereto as Exhibit C (the "Easement Assignments").
(c) Seller agrees it is transferring the Acquired Assets located in the Acquired Service
Area to Buyer and that the Buyer shall have the right to provide water service in
the Acquired Service Area, and Seller shall be precluded from providing either
retail or wholesale water service (except as provided herein to Buyer) in the
Acquired Service Area so long as the Buyer or its successors or assigns is
providing water service in the Acquired Service Area. Buyer shall be precluded
from providing water service in areas, not including the Acquired Service Area,
served by Sellers as ofthe Closing (as defined in Section Sea) hereof).
(d) Upon the Closing of this Agreement as provided herein, the Intergovernmental
Agreement between the Department of Waterworks and Buyer (executed by
Buyer on March 26, 2002) shall be considered amended to insert at the end of the
last sentence of Section 2.a. the following text situated within the quotation.
marks: "only to the extent consistent with the Asset Purchase Agreement dated
June 30, 2006, by and between the parties hereto, among other parties (i.e., the
Waterworks shall not provide retail Water Services to residents of Clay
Township, but shall only provide wholesale Water Services to the Unit as agreed
to in said Asset Purchase Agreement, and the Waterworks shall be permitted to
own property within the Unit's territory necessary to conduct its water utility
operations)." .
2
.2. Assumption of Certain Liabilities.
(a) Except for the Contracts, as set forth in Schedule 3, obligations to the Carmel
Customers arising from customer deposits and customer advances, and for such
other liabilities as may be specifically assumed by Buyer elsewhere in this
Agreement (the Contracts and other such liabilities are collectively referred to as
the "Assumed Liabilities"), Buyer does not assume, and shall not in any manner
become responsible or. liable for, any debts, obligations or liabilities of Sellers,
whether known or unknown, fixed, contingent or otherwise, arising out of or
resulting from Sellers' ownership or operation of the Acquired Assetsprior to the
date hereo f.
(b) As of the date hereof, Buyer shall execute and deliver to Sellers an assumption
agreement, in substantially the form of the assumption agreement attached hereto
as Exhibit D (the "Assumption Agreement"), pursuant to which Buyer shall
assume the Assumed Liabilities. Upon execution and delivery of the Assumption
Agreement, Buyer shall irrevocably and unconditionally waive and release the
Sellers from all Assumed Liabilities.
(c) Buyer shall not assume any liabilities, commitments or obligations (contingent or
absolute and whether or not determinable as of the Closing) of the Sellers, except
for the Assumed Liabilities as expressly provided for above, whether such
liabilities or obligations relate to payment, performance, or otherwise, and all
liabilities, commitments or obligations not expressly transferred to Buyer
hereunder as Assumed Liabilities are being retained by the Sellers (the "Retained
Liabilities"). Sellers hereby irrevocably and unconditionally waive and release
Buyer from all Retained Liabilities, including any liabilities created or which arise
by statute or common law.
3. Assignment of Contracts. The Department of Waterworks hereby assigns to Buyer all of
its right, title, benefit, privilege and interest in, to and under, and all of its burdens,
obligations and liabilities in connection with, each of the contracts and agreements
(including but not limited to developer contracts, extension agreements and the Rule 12(P)
Contracts) described on Schedule 3 hereto (collectively, the "Contracts"). Buyer hereby
accepts the foregoing assignment of the Contracts and assumes, and agrees to timely and
completely observe and perform, all of the obligations ofthe Department of Waterworks
under the Contracts to be observed, performed, paid or discharged after the date hereof.
On each annual anniversary of the Closing, Buyer agrees to remit to the Department of
Waterworks any fees and charges collected by Buyer in the previous twelve (12) month
period pursuant to Rule 12(P) Contracts that were fully executed by depositors or owners
as of the Closing, such remittances to not include fees and charges received pursuant to
counterparts of Rule 12(P) Contracts executed by Potential Customers or Subsequent
Participants (as those terms are defined in the Rule 12(P) Contracts) after the Closing. .
Sellers agree to execute a Memorandum of Assignment evidencing the assignment set
forth in this Section 3 for Contracts (or memoranda or other evidences thereof) that have
been recorded, which Sellers agree that Buyer may record after the Closing.
3
4. Purchase Price.
(a) In consideration of Sellers selling the Acquired Assets to Buyer, and for the other
covenants of Sellers set forth herein, Buyer shall pay the Department of
Waterworks an aggregate of $36.2 million in the dollar amounts shown on the
payment schedule attached hereto as Schedule 4( a).
(b) All payments required by this Section 4 shall be made in currency of the United
States of America and by wire transfer of immediately available funds to an
account or accounts designated in writing by the Department of Waterworks (or in
such other manner as Sellers may direct from time to time in writing). Buyer
shall giv~ notice to the Financial Manager of the Department of Waterworks or
his designee of the date and amount of transfer before each transfer made
pursuant to Schedule 4(a).
(c) If any payment required by this Section 4 is due on a day other than a business
day, Buyer shall make such payment on the business day immediately preceding
the date on which such payment was otherwise due.
5. Separation of Water Line Assets. Buyer will (at its sole liability, cost and expense)
separate the Water Line Assets from Sellers' other water utility assets, and connect the
Water Line Assets to the other water utility assets of Buyer, in accordance with the
schedule attached hereto as Exhibit E (the "Takedown Schedule").
6. Transition of Carmel Customers.
(a) In accordance with its normal billing practices and procedures, the Department of
Waterworks shall invoice the Carmel Customers for water utility service provided
through the date of this Agreement. From and after the date of this Agreement,
Buyer shall be responsible for invoicing the Carmel Customers and providing
water utility services to the Carmel Customers. Buyer shall promptly cause all
water meters of the Carmel Customers to be read and shall inform the Department
of Waterworks in writing as to the water usage of the Carmel Customers through
the date of this Agreement to enable the Department of Waterworks to timely
invoice the Carmel Customers for the water used during such period.
(b) Sellers shall bear . all costs and collect all revenue received from the Carmel
Customers for water utility service provided to the Carmel Customers up to and
including the date hereof, and all such revenue billed and collected shall be
Sellers'. Accounts receivable with respect to Carmel Customers for water utility
service provided up to and including the date of Closing shall be Sellers. Buyer
shall bear all costs and collect all revenue received from the Carmel Customers
for water utility service provided to the Carmel Customers after the date hereof
and all such revenue billed and collected shall be Buyers'.
4
(c) To enable Buyer to provide water utility service to the Cannel Customers while
Buyer completes the separation of the Water Line Assets, as contemplated by
Section 5, the Department of Waterworks agrees to sell water that has been
treated by the Department of Waterworks' water treatment plants ("Finished
Water") to Buyer through the meters of the Cannel Customers ("Delivery
Points") until the necessary infrastructure to connect the Cannel Customers to
Buyer's existing waterworks is complete. The Department of Waterworks shall
provide Finished Water to Buyer on the following terms:
(1) The Department of Waterworks will use reasonable efforts to operate and
maintain supply and pumping facilities within its systems so as to provide
Finished Water to the Delivery Points at reasonable pressure. For
purposes of this Agreement, reasonable pressure shall be the pressure
maintainable under normal operating conditions and which meets
established fire flow standards, as such have been maintained at the
Delivery Points for the one year period immediately preceding the date of
this Agreement.
(2) The Department of Waterworks agrees to continue to supply water in the
ordinary course as provided in its management contract with Veolia Water
Indianapolis, LLC.
(3) Until the earlier of (i) the expiration of five (5) years from the date of this
Agreement or (ii) the completion of the Takedown Schedule, in the event
ofan extended shortage of Finished Water or the supply of Finished Water
available to Buyer is otherwise diminished over an extended period of
time, the amount of Finished Water delivered to Buyer through the
Delivery Points shall not be reduced or diminished by a ratio or proportion
greater than that of the reduction of the amounts supplied to Sellers' other
customers.
(d) Buyer shall perform monthly meter readings with respect to Finished Water
supplied by the Department of Waterworks hereunder and on the first day of each
calendar month notify the Financial Manager of the Department of Waterworks or
his designee of the aggregate volume of Finished Water used by the Carmel
Customers during the billing period. Buyer shall keep records of the monthly
Finished Water meter readings for a period of five (5) years from the date of this
Agreement, and Sellers or a designee of the Department of Waterworks shall have
the right to audit such records upon five (5) days' written notice.
(e) Based on the finished water volumes reported by Buyer to the Department of
Waterworks under Section 6(d) above, the Department of Waterworks shall
invoice Buyer on a monthly basis in accordance with the Department of
Waterworks' tariffed rates and charges in. effect on the date hereof and Buyer
shaII payor protest in writing each such bill submitted to it within seventeen (17)
days of receipt of same; orovided, however, except as provided in SectiBns 6(1)
5
and 6(g) below, Buyer shall receive a dollar-for-dollar credit for the cost of such
water against any payments owed to the Department of Waterworks under such
monthly bill. Attached as Schedule 6(e) is a sample computation of methodology
used to compute the montWy billing and credit.
(f) Buyer shall receive credit against payments owed to the Department of
Waterworks under Section 6(e) for water provided by the Department of
Waterworks during the first sixty (60) months following the Closing of the
Agreement beginning with the month in which the Agreement closes.
(g) Notwithstanding the foregoing, Buyer shall not receive any credit against
payments owed to the Department of Waterworks under Section 6(e): (i) for
water provided by the Department of Waterworks after the date on which the
Water Line Assets by which the Carmel Customers are served were required by
the Takedown Schedule to have been separated from the other water utility assets
of Sellers, (ii) in excess of $1.8 million for any twelve month period with the first
twelve month period beginning the first calendar month after the date of this
Agreement, or (iii) after the fifth (5th~ anniversary of the date of this Agreement,
but credits earned prior to the fifth (5 ) anniversary date will still apply.
(h) Buyer agrees that after the expiration of the fifth (5th) anniversary of this
Agreement, no more than 500 residential Carmel Customers will require Finished
Water produced by the Department of Waterworks and after the expiration of the
tenth (lOth) anniversary of this Agreement, no Carmel Customers will require
Finished Water produced by the Department of Waterworks.
7. Construction of Water Mains.
(a) On or before the date twelve (12) months after the date of the Closing, Buyer (at
its sole liability, cost and expense) shall complete construction of the water mains
identified on Exhibit A hereto, to enable Sellers to pump water through their
water utility system without the continued use of any of the Water Line Assets;
provided, however, that for the new l6-inch water main to be constructed by
Buyer along 106'h Street and between Towne Road and Ditch Road, Buyer shall
complete construction of such 16-inch water main by December 31, 2007 or the
time that Buyer needs the existing 12-inch main to transition Carmel Customers,
whichever occurs first. Such water mains shall be constructed in accordance with
(i) good utility practice and the specifications of the Department of Waterworks,
(ii) shall be subject to a right of inspection by the Department of Waterworks or
its designees, and (iii) the connections with the Water Line Assets shall be subject
to the approval of the Department of Waterworks or its designees, which approval
shall not unreasonably be withheld.
(b) Except as set forth in Section 7(a) above, Sellers and Buyer shall each pay their
own costs for any needed improvements to their respective water systems.
6
8. Closing.
(a) Subject to the terms and conditions of this Agreement, the closing of the sale and
purchase of the Acquired Assets (the "Closing") shall take place at 10:00 A.M.,
Indianapolis time contemporaneously with the signing of this Agreement, on a
date mutually satisfactory to Buyer and Sellers, at the offices of Bingham McHale
LLP, 2700 Market Tower, 10 West Market Street, Indianapolis, IN 46204.
(b) Immediately following the Closing, Buyer will take over the Acquired Assets,
including the Carmel Customers; and will be responsible for any and all
maintenance of the Acquired Assets from the date hereof forward.
(c) On the signing of this Agreement, the Sellers shall deliver to Buyer:
(1) Bill of Sale in the form attached hereto and made a part hereof as Exhibit
E and other instruments of assignment and transfer of real and personal
property constituting the Acquired Assets, executed by Sellers;
(2) The consents to transfer all transferable and assignable Contracts and
Permits to the extent specifically required hereunder;
(3) All agreements and other documents required by this Agreement; and
(4) All such other instruments of conveyance as shall, in the reasonable
opinion of Buyer and its counsel be necessary to transfer to Buyer the
Acquired Assets in accordance with this Agreement, duly executed and
aclmowledged by Sellers, if necessary, and in recordable form.
(d) On the signing of this Agreement, the Buyer will deliver to the Sellers:
(1) Wire transfer of immediately available funds in the amount of $350,000,
the installment of the Purchase Price due and payable on the signing;
(2) The Assumption Agreement, duly executed by Buyer; and
(3) All such other instruments of assumption as shall, in the reasonable
opinion of Sellers and their counsel, be necessary for Buyer to assume the
Assumed Liabilities in accordance with this Agreement.
9. Warranties and Reoresentations.
(a) Sellers represent and warrant to Buyer that:
(1) City' is a municipal corporation duly organized and validly existing under
the laws of the State of Indiana and Sellers have no reason to believe that
7
they do not have all requisite authority to (i) own and operate the Acquired
Assets; (ii) enter into and deliver this Agreement; and (iii) consummate
the transactions contemplated by this Agreement.
(2) Sellers have no reason to believe that they do not have full power and
authority to execute, deliver, and perform this Agreement and all other
agreements and instruments to be executed in connection herewith (such
other agreements and instruments being hereinafter referred to collectively as
the "Transaction Documents"), to which they are parties. The execution,
delivery, and performance by Sellers of this Agreement and the Transaction
Documents to which Sellers are a party have been duly authorized by all
necessary action on their part. This Agreement has been duly executed and
delivered by Sellers. This Agreement is a legal, valid, and binding
obligation of Sellers, enforceable against them in accordance with its terms,
except to the extent that injunctive or other equitable relief is within the
discretion of a court and subject to the valid exercise of the constitutional'
powers of the Sellers, the State of Indiana, or any political subdivision or
agency, commission or department thereof, and the United States of
America. Upon execution and delivery of each of the Transaction
Documents, as of the Closing Date, each of the Transaction Documents to
which Sellers are a party will constitute the legal, valid and binding
obligations of Sellers, enforceable against them in accordance with their
respective terms, except to the extent that injunctive or other equitable relief
is within the discretion of a court; and subject to the valid exercise of the
constitutional powers of the Sellers, the State of Indiana, or any political
subdivision or agency, commission or department thereof, and the United
States of America.
(3) The execution, delivery, and perforrnance of this Agreement and the
Transaction Documents by Sellers does not, and the consummation of the
transactions contemplated hereby and thereby will not, except as set forth
on Schedule 9(a)(3), violate, conflict with, result in a breach of, or
constitute a default (or an event which would with the passage of time or
the giving of notice, or both, constitute a default) under, or result in or
permit the termination, modification, acceleration, or cancellation of, or
result in the action or imposition of any lien on the Acquired Assets, or
give others any interests or rights in the Acquired Assets under (i) any
indenture, mortgage, loan or credit agreement, license, instrument, lease,
contract, plan, perrnit, authorization, or other agreement or commitment,
oral or written; to which Sellers are a party, or by which any of their assets
or properties may be bound or affected, except for such violations,
conflicts, breaches, terrninations, modifications, 'accelerations,
cancellations, interests, or rights which, individually or in the aggregate,
do not constitute a change or effect (or series of related changes or effects)
that has or is reasonably likely to have a material adverse change in or
effect upon the Acquired Assets (such a change or effect or series of
8
related changes or effects, a "Material Adverse Effect") or their ability to
perform their obligations under this Agreement and the Transaction
Documents, or (ii) any judgment, injunction, writ, award, decree,
restriction, ruling, or order of any court, arbitrator, or Authority or any
applicable ordinance, rule or regulation to which Sellers are subject other
than those violations and conflicts which individually or in the aggregate
do not have a Material Adverse Effect on their ability to perform their
obligations under this Agreement and the Transaction Documents.
(4) Except as disclosed on Schedule 9(a)(4). Sellers possess and are in
compliance with all Permits and licenses necessary for the operation of the
Acquired Assets under all applicable laws, rules, regulations, ordinances
and codes, except to the extent that any failure to possess, or to comply
with, any Permit, laws, rules, regulations or orders does not, individually
or in the aggregate, have a Material Adverse Effect. Except as disclosed
in Schedule 9(a)(4), the Acquired Assets are operated by Sellers in
compliance with all applicable laws, zoning, building and similar laws,
rules, regulations, ordinances, codes, judgments and orders, except for
such failures to comply, which individually or in the aggregate do not
have a Material Adverse Effect. All Permits of Sellers relating to the
operation of the Acquired Assets are in full force and effect, other than
those the failure of which to be in full force and effect individually or in
the aggregate do not have a Material Adverse Effect. There are no
proceedings pending or, to the best of the Sellers' knowledge, threatened
that seek the revocation, cancellation, suspension or any adverse
modification of any such Permits presently possessed by Sellers other than
those revocations, cancellations, suspensions or modifications that
individually or in the aggregate do not have a Material Adverse Effect.
(5) Except as set forth on Schedule 9( a)(5), no outstanding notice, citation,
summons or order has been issued, no outstanding complaint has been
filed, no outstanding penalty has been assessed and no investigation or
review is pending or, to the knowledge of the Sellers, threatened, by any
federal, state, local or foreign governmental or regulatory entity (or any
department, agency, authority or political subdivision thereof) (an
"Authority"), or other individual, corporation, parmership, limited liability
company, association, Authority, trust or other entity or organization (a
"Person") with respect to any alleged (i) violation by Sellers relating to the
operation of the Acquired Assets of any law, ordinance, rule, regulation,
code or order of any Authority; or (ii) failure by Sellers to have any Permit
required in connection with the operation of the Acquired Assets or
otherwise applicable to the Acquired Assets, except, in each case, where
such violations or failures, individually or in the aggregate, do not have a
Material Adverse Effect.
9
(6) No consent, approval or authorization of, or registration or filing with, any
Person (governmental or private) is required in connection with the
execution, delivery and performance by Sellers of this Agreement, the
Transaction Documents, or the consummation of the transactions
contemplated hereby or thereby by Seller, including in connection with the
assignment of the Contracts and Permits contemplated hereby, except (i) as
specified on Schedule 9(a)(6) and (ii) for such other consents, approvals,
authorizations, registrations or filings the failure of which to obtain or make
would not individually or in the aggregate have a Material Adverse Effect.
(7) Sellers own their respective Acquired Assets free and clear of all liens,
except as is otherwise alleged or as may otherwise be established in the
lawsuit captioned The Consolidated City of Indianapolis v. NiSource Inc.
and IWC Resources Corp., Cause No. 49D13-0504-PL-16416, pending in
Marion Superior Court No. 13 (the ''Pending Litigation"), and the status of
which is set out on Schedule 9( a)(7).
(8) The Water Line Assets are located on real property that is within the area
covered by the Easements.
(9) Sellers have no liabilities with respect to the operation of the Acquired
Assets that would constitute Assumed Liabilities, either direct or indirect,
matured or unmatured or absolute, contingent or otherwise, except:
(i) Liabilities disclosed on Schedule 9( a)(9) or any of the other
Schedules to this Agreement, provided it is reasonably apparent from
such Schedule that an item disclosed thereon is a liability and the
nature thereof;
(ii) Liabilities arising in the ordinary course of business under any
Contract; and
(iii) Those other liabilities, which individually and in the aggregate,
would not have a Material Adverse Effect.
(10) THE ACQUIRED ASSETS ARE BEING SOLD TO BUYER "AS-IS,
WHERE-IS" AND WITH ALL FAULTS. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLERS DO
NOT MAKE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AT LAW OR EQUITY, IN RESPECT OF
OR OTHERWISE IN ANY WAY RELATING TO THE ACQUIRED
ASSETS, INCLUDING, WITHOUT LIMJTATIONS, WITH
RESPECT TO MERCHANT ABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ANY SUCH REPRESENTATION
OR WARRANTY IS HEREBY EXPRESSLY DISCLAIMED.
10
(b) Buyer represents and warrants to Sellers as follows:
(1) Buyer has full power and authority to execute, deliver and perform this
Agreement and the other Transaction Documents to which it is a party. The
execution, delivery and performance by Buyer of this Agreement and the
Transaction Documents to which Buyer is a party have been duly authorized
by all necessary action on its part. This Agreement has been duly executed
and delivered by Buyer. This Agreement is a legal, valid and binding
obligation of Buyer, enforceable against it in accordance with its terms,
except to the extent that injunctive or other equitable relief is within the
discretion of a court and subject to the valid exercise of the constitutional
powers of the Buyer, the State of Indiana, or any political subdivision or
agency, commission or department thereof, and the United States of
America. Upon execution and delivery of each of the Transaction
Documents, as of the Closing Date, each of the Transaction Documents to
which Buyer is a party will constitute the legal, valid and binding obligations
of Buyer, enforceable against it in accordance with its respective terms,
except to the extent that injunctive or other equitable relief is within the
discretion of a court; and subject to the valid exercise of the constitutional
powers of the Buyer, the State of ,Indiana, or any political subdivision or
agency, commission or department thereof, and the United States of
America.
(2) The execution, delivery, and performance of this Agreement and the
Transaction Documents by Buyer does not, and the consummation of the
transactions contemplated hereby and thereby will not, except as set forth on
Schedule 9(b )(2), violate, conflict with, result in a breach of, or constitute a
default (or an event which would with the passage of time or the giving of
notice, or both, constitute a default) under, or result in or permit the
termination, modification, acceleration, or cancellation of (i) any indenture,
mortgage, loan or credit agreement, license, instrument, lease, contract, plan,
permit, authorization, or other agreement or commitment, oral or written, to
which Buyer is a party, or by which any of its assets or properties may be
bound or affected, except for such violations, conflicts, breaches,
terminations, modifications, accelerations, cancellations, interests or rights
which, individually or in the aggregate, do not have a Material Adverse
Effect on its ability to perform its obligations under this Agreement and the
Transaction Documents, or (ii) any judgment, injunction, writ, award,
decree, restriction, ruling, or order of any court, arbitrator or Authority or
any applicable ordinance, rule or regulation to which Buyer is subject, other
than those violations and conflicts which, individually or in the aggregate, do
not have a material adverse effect on its ability to perform its obligations
under this Agreement and the Transaction Documents.
(3) No consent, approval or authorization of, or registration or filing with, any
Person (governmental or private) is required in connection with the
11
execution, delivery and performance by Buyer of this Agreement, the
other Transaction Documents, or, the consummation of the' transactions
contemplated hereby or thereby by Buyer except (i) as specified on
Schedule 9(b )(3) and (ii) for such consents, approvals, authorizations,
registrations or filings, the failure to obtain or make would not
individually or in the aggregate have a Material Adverse Effect on its
ability to perform its obligation under this Agreement and the Transaction
Documents.
10. Other matters.
(a) Sellers shall vigorously pursue the resolution of the Pending Litigation as defined
in Section 9(a)(7), and agree to represent Buyer's interests equally with their own
in pursuit of the Pending Litigation.
(b) Contemporaneously with the signing of this Agreement, the parties shall execute
the Mutual Release and Agreement to Dismiss Pending Proceedings in the form
attached hereto as Exhibit G.
(c) The Buyer acknowledges that Sellers have financed and refmanced a portion of
the costs of the Acquired Assets from bonds (the "IWC Bonds") the interest on
which is exempt from federal income tax under Section 103 of the Internal
Revenue Code of 1986 (the "Code"). To preserve the federal tax exempt status of
the interest on the IWC Bonds, the Department of Waterworks has made certain
covenants and agreements regarding the use of the Acquired Assets. The Sellers
agree to apply each installment payment of the Purchase Price paid by the Buyer
in a manner that, but for the installment nature of payments under this Agreement,
such payments would be deemed disposition proceeds meeting the alternate use
requirements of Treas. Reg. Section 1.141-12(e) (as so applied, "Alternate Use
Assets"). Sellers shall provide Buyer with a certification in the form attached
hereto as Schedule 10(c) on March 31, 2009, and each March 31st thereafter until
March 31, 2027. In the event Buyer desires to sell the Acquired Assets when the
IWC Bonds are outstanding, Buyer reserves the right to seek a private ruling
request from the Internal Revenue Service to confirm that the acquisition of the
Alternate Use Assets meets the alternate use requirements of Treas. Reg. Section
1.141-12(e) or wil1 not otherwise cause the rwc Bonds to be treated as private
activity bonds under 9 141 of the Code (if so obtained, a "Favorable Ruling").
The Buyer, therefore, represents, covenants and agrees that until the earlier of
when the rwc Bonds are no longer outstanding or a Favorable Ruling is obtained:
(1) The Acquired Assets will be available for use by members of the general
public. Use by a member of the general public means use by natural
persons not engaged in a trade or business. No person or entity other than
the Buyer, or another state or local government unit will use the Acquired
Assets other than as a member of the general public, if such use would be
considered a private business use within the meaning of 9 141 of the
Code;
12
(2) No person or entity other than the Buyer or another state or local
government unit will own the Acquired Assets or will have an actual or
beneficial use of such property pursuant to a lease, a management or
incentive payment contract, arrangements such as take-or-pay or output
contracts or any other type of arrangement that conveys other special legal
entitlements and differentiates that person's or entity's use of such
property from use by the general public, if such use would be considered a
private business use within the meaning of 9 141 of the Code; and
(3) Any management agreement entered into by the Buyer with respect to the
Acquired Assets shall comply with IRS Revenue Procedure 97-13, so that
the agreement will not give rise to private business use under the Internal
Revenue Code of 1986, as amended.
Buyer undertakes to notify the Financial Manager of the Department of
Waterworks as soon as reasonably practicable after receipt ofa Favorable Ruling.
(d) Upon the terms and subject to the conditions set forth in this Agreement, each of the
parties agrees to use commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the other
party in doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the sale and purchase and the
other transactions contemplated by this Agreement, including, but not limited to:
(1) Cooperate with each other in determining whether filings are required to be
made or consents are required to be obtained in any jurisdiction in
connection with the consummation of the transactions contemplated by this
Agreement, and in making or causing to be made any such filings promptly,
and in seeking to obtain timely any such consents; and
(2) Advise the other party promptly if such party determines that any of its
obligations hereunder will not be satisfied in a timely manner.
(e) All press releases, notices to third parties, aod all other public announcements
concerning this Agreement or the transactions contemplated herein shall be planned
and iss~ed jointly by Buyer and Sellers, unless counsel to such party advises that
such announcement or statement is required by law, in which case the parties shall
make commercially reasonable efforts to consult with each other prior to such
required announcement.
(f) Buyer and Sellers, from time to time after the Closing, at Buyer's or Sellers' request,
will execute, acknowledge, and deliver to the applicable person such other
instruments of conveyance and transfer, information or records, and will take such
other actions and execute such other documents, certifications, and further
assurances as Buyer or Sellers, as the case may be, may reasonably require in order
to transfer, in accordance with the terms and conditions of this Agreement, more
effectively put Buyer more fully in possession of any or all of the Acquired Assets
13
and to enable Buyer to complete, perform, and discharge any of the Assumed
Liabilities. Each party shall cooperate and deliver such instruments, records or
information, and take such action as may be reasonably requested by the other party
to carry out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
(g) Buyer and Sellers shall cooperate and shall cause their respective officers,
employees, agents, and representatives to cooperate to ensure the orderly transition
of the Acquired Assets from Sellers to Buyer and to minimize the disruption to the
operation of the Acquired Assets resulting from the transactions contemplated
hereby. Sellers shall give Buyer and its representatives (including Buyer's
accountants, consultants, counsel and, employees), upon 5 days' notice and during
normal business hours, reasonable access to the properties, contracts, books, records,
and affairs of Sellers to the extent relating to the Acquired Assets, and shall cause its
officers, employees, agents and representatives to furnish to Buyer all documents,
records and information (and copies thereof), to the extent relating to the Acquired
Assets, as Buyer may reasonably request.
(h) Sellers shall provide Buyer at Closing a copy of each Contract, and any other
contract or agreement that concerns the Acquired Assets or operation thereof.
(i) Sellers, on the one hand, and Buyer, on the other hand, shall cooperate fully with
each other after the Closing so that (subject to any limitations that are reasonably
required to preserve any applicable attorney-client privilege) each party has
access to the business records, contracts and other information existing at the
Closing Date and relating in any manner to the Acquired Assets or the Assumed
Liabilities or the operation of the Acquired Assets (whether in the possession of
Sellers or Buyer). In addition, so long as the Water Line Assets remain connected
to Sellers' other water utility assets, Sellers and Buyer shall cooperate fully in
connection with the provision of any information required to be reported to any
goverrunental agency relating to operation of the Water Line Assets. No files,
books or records existing at the Closing Date and relating in any manner to the
ownership or operations of the Acquired Assets shall be destroyed by any party
for a period of six (6) years after the Closing Date without giving the other party
at least thirty (30) days prior written notice, during which time such other party
shall have the right (subject to the provisions hereof) to examine and to remove
any such files, books and records prior to their destruction. The access to files,
books and records contemplated by this Section lO(i) shall be during normal
business hours and upon not less than two (2) business days prior written request,
shall be subject to such reasonable limitations as the .party having custody or
control thereof may impose to preserve the confidentiality of information
contained therein, and shall not extend to material subject to a claim of privilege
unless expressly waived by the party entitled to claim the same.
14
G) All representations, warranties, covenants a.nd agreements contained in this
Agreement or the Transaction Documents shall survive (and not be affected in any
respect by) the Closing.
. (k) Buyer has a right to accelerate payment of the Purchase Price, which accelerated
payment by the Buyer will be accomplished by the Buyer paying a predetermined
amount on the day immediately following a regularly scheduled payment, as set
forth on Schedule lOCk), which represents the estimated present value of the then
remaining outstanding installments.
. II. Miscellaneous.
(a) This Agreement supersedes all prior agreements, whether written or oral, between
the parties with respect to its subject matter (including the MOV) and constitutes
a complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended,
supplemented, or otherwise modified except by a written agreement executed by
the party to be charged with the amendment.
(b) No party may assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the other parties. Subj ect to the
preceding sentence, this Agreement will apply to, be binding in all respects upon
and inure to the benefit of the successors and permitted assigns of the parties. .
(c) If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
(d) With regard to all dates and time periods set forth or referred to 10 this
Agreement, time is of the essence.
(e) This Agreement will be governed by and construed under the laws of the State of
Indiana without regard to conflicts-of-laws principles that would require the
application of any other law.
(f) This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. The exchange
of copies of this Agreement and of signature pages by facsimile or electronic mail
transmission shall constitute effective execution and delivery of this Agreement as
to the parties and may be used in lieu of the original Agreement for all purposes.
Signatures of the parties transmitted by facsimile or electronic mail shall be
deemed to be their original signatures for all purposes.
15
(g) Except as othetwise provided in this Agreement, each of the parties hereto shall
bear its respective accounting, legal and other expenses incurred in connection
with the transactions contemplated by this Agreement.
(h) Buyer and the Sellers have participated jointly in the negotiation and drafting of this
Agreement and the Transaction Docwnents. In the event any ambiguity or question
of intent or interpretation arises, this Agreement and the Transaction Documents
shall be construed as if drafted jointly by Buyer and Sellers, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any federal,
state, local or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires othetwise. 'The
word "including" in this Agreement shall mean including without limitation. Words
in the singular shall be held to include the plural and vice versa and words of one
gender shall be held to include the other genders as the context requires. The terms
"hereof," "herein," and "herewith" and words of sirnilar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole (including all of
the Schedules and Exhibits hereto) and not to any particular provision of this
Agreement, and Section, Paragraph, Exhibit, and Schedule references are to the
Sections, Paragraphs, Exhibits and Schedules to this Agreement, unless otherwise
specified. The word "or" shall not be exclusive. Provisions of this Agreement shall
apply, when appropriate, to successive events and transactions. Section references
refer to this Agreement unless otherwise specified.
(i) Any notice, request, demand, waiver, consent, approval or other communication
which is required or permitted to be given to any party hereunder shall be in writing
and shall be deemed given only if delivered to the party personally or sent to the
party by telecopy, by registered or certified mail (return receipt requested) with
postage and registration or certification fees thereon prepaid, or by any nationally
recognized overnight courier addressed to the party at its address set forth below:
If to Buyer:
City of Carmel, Hamilton County, Indiana
c/o John Duffy, Director of Utilities
One Civic Square
Carmel, Indiana 46032
With a copy to:
Bingham McHale LLP'
2700 Market Tower
10 West Market Street
Indianapolis, Indiana 46204
. Attention: Randolph L. Seger, Esq.
Fax: (317) 236-9907
16
If to Sellers:
Consolidated City of Indianapolis, Marion County, Indiana
c/o Jonathan Bryant, Esq., Office of Corporation Counsel
Suite 1601, City-County Building
200 E. Washington Street
Indianapolis, Indiana 46204
Fax: (317) 327-3968
With a copy to:
Sommer Barnard PC
One Indiana Square
Suite 3500
Indianapolis, Indiana 46204
Attention: Michael C. Terrell, Esq.
Fax: (317) 713-3699
Either party may change the above addresses by giving written notice to the other party.
U) All Exhibits and Disclosure Schedules annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Disclosure of any fact or item in any Schedule referenced by a particular
Section in this Agreement shall, should the existence of the fact or item or its
contents be clearly related to any other paragraph or section, be deemed also to be
disclosed with respect to that other paragraph or section.
(k) This Agreement is solely for the benefit of the parties hereto; Nothing herein
expressed or implied is intended or should be construed to confer upon or give to
any person other than the parties hereto and their successors and permitted assigns
any rights or remedies under or by reason of this Agreement.
(I) The parties may, by mutual agreement, amend this Agreement in any respect, and
any party, as to such party, may (i) extend the time for the performance of any of the
obligations of the other party; (ii) waive any inaccuracies in representations and
warranties by the other party; (iii) waive compliance by the other party of any of the
covenants or agreements contained herein and performance of any obligations by the
other party; and (iv) waive the fulfillment of any condition that is precedent to the
performance by such party of any of its obligations under this Agreement. To be
effective, 'any such amendment or waiver must be in writing and be signed by the
party providing such waiver or extension, as the case may be. The waiver by any
party hereto of any breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach, whether or not similar.
17
(m) The headings preceding the text of the sections and subsections hereof are inserted
solely for convenience of reference, and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
(n) It is understood and agreed that neither the specification of any dollar amount in the
representations and warranties contained in this Agreement nor the inclusion of any
. specific item in the Disclosures Schedules or Exhibits is intended to imply that such
amounts or higher or lower amounts, or the items so included or other items, are or
are not material, and none of the parties shall use the fact of the setting of such
amounts or the fact of any inclusion of any such item in the Disclosure Schedules or
. Exhibits in any dispute or controversy between the parties as to whether any
obligation, item or matter is or is not material for purposes hereof.
(0) Sellers and Buyer agree to waive, if applicable, the requirements of the Indiana
Uniform Commercial Code - Bulk Transfers as set forth in Indiana Code ~ 26-1-
6-101 e/ seq. ("Bulk Transfers Law").
[REMAlNDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
18
,
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the 30th day of June 2006.
CITY OF CARMEL,
HAMILTON COUNTY, INDIANA
By:
Richard L. Sharp, signing on
Behalf of the Honorable
Mayor James Brainard
By:
Richard L. Sharp, President Pro Tempore
Carmel City Council ("Council")
CONSOLIDATED CITY OF INDIANAPOLIS,
MARION COUNTY, INDIANA
By:
(Printed)
Its:
By:
(printed)
Its:
Signing on behalf of the
City-County Council
1045621.6
CARMEL BOARD OF PUBLIC
WORKS At'ID SAFETY
By:
John M. Duffy, signing on behalf
ofthe Carmel Board of Public
Works and Safety
INDIANAPOLIS DEPARTMENT OF
WATERWORKS
By:
(Printed)
Its:
Signing on behalf of the Department
of Waterworks
19