HomeMy Public PortalAboutExhibit MSD 58 - Intergovernmental Cooperation Agreement between MSD & City of ArnoldSEWERAGE SYSTEM AGREEMENT
THIS AGREEMENT, dated as of the 11th day of December, 2008 (regardless of when
signed by the parties hereto), by and between The Metropolitan St. Louis Sewer District (herein
referred to as the "District"), a body corporate and politic duly organized, and existing under the
laws of the State of Missouri (herein referred to as the "State"), and the City of Arnold, Missouri,
a Third Class City of the State of Missouri (herein referred to as the "Municipality"): Upon the
permanent and continuous diversion of the Municipality's flow to the Project Facility this
Agreenient shall supercede the existing Agreement dated March 3, 1982.
WITNESSETH:
WHEREAS, pursuant to and in accordance with the provisions of Article VI, Set tib 30,
of the Constitution of the State of Missouri, The Metropolitan St. Low Sewer District was
created and the Charter (herein referred to as the `flan" as amended on November 7, 2000) of
the District was adopted on February 9, 1954; and
WHEREAS, Section 3.020(7) of said Plan of the District empowers the District: "To
contact with municipalities, districts, other public agencies, individuals, or private corporations,
or any of them whether within or without the District, for the construction, use, or Maintenanc,e
of common or joint sewers, drains, outlets, or disposal plants, or for the performance of any
service required by the District"; and
WHEREAS, Section 3.020(8) of said Plan, of the District empowers the District: "To
contract with, and there under to permit municipalities, districts, other public agencies, indi-
viduals, or private corporations, or any of them whether within or without the District, to connect
with and use the facilities of the District. The rates for such service and connections shall be such
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as may be agreed upon between the contracting parties"; and
WHEREAS, the District, pursuant to its authorities and powers aforesaid, is the lead
applicant for Federal and State water pollution control grant and loan assistance in the Lower
Meramec River Basin comprising nine (9) major watersheds in St. Louis County, Missouri and
four (4) major watersheds in Jefferson County, Missouri and, concomitantly therewith, has
developed a regional sewerage system facility plan for the entire Lower Meramec River Basin,
watershed known as the "201 Plan" and the "208 Plan"; and
WHEREAS, Section 3.020(9) of said Plan of the District empowers the District: "To
enter into and perform contracts, whether long-term or short-term, with any establishment,
whether within or without the District, for the provision and operation by the District of
sewerage facilities to abate or reduce the pollution of waters caused by discharges of wastes by
such establishment, and the payment periodically by such establishment to the District of
amounts at least sufficient to compensate the District for the cost of providing (including
payment of principal and interest charges, if any) and operating and maintaining the sewerage
facilities serving such establishment"; and
WHEREAS, Section 3.020(10) of said Plan of the District empowers the District: "To
enter into negotiations with the Federal Government and the State of Missouri and other states
and political subdivisions thereof, or the agencies of anyof them, and apply for and obtain from
any of them, any and all assistance and grants-in-aid that may be available"; and
WHEREAS, the District is duly authorized pursuant to said Plan to undertake by contract
the planning, financing, construction, maintenance, and operation of a regional system of trunk
sewers and wastewater treatment plant or plants; and
WHEREAS, pursuant to Sections 70.210, 70.220, and 250.010-250.250 of the Revised
Statutes of the State of Missouri, the Municipality has the power to take any and all actions
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required to construct, maintain or acquire by agreement wastewater treatment or wastewater
treatment systems and to pay for the same, in whole or in part, out of the revenues of the
Municipality or by the collection of charges for such services; and
WHEREAS, the Municipality is authorized to pay a reasonable charge for wastewater
treatment and disposal service to the District, based upon the volume discharged by the
Municipality into the District's Project Facility, such charge to provide sufficient revenues for
Operation and Maintenance Costs and for Capital Costs necessary to make alterations, additions,
or improvements and for Local Project Costs related to that portion of the Project Facility
reasonably attributable and allocable to the Municipality in accordance with generally accepted
engineering principles; and
WHEREAS, the District herein agrees to obtain all governmental approvals required by
law for the engineering, construction, acquisition, ownership, operation and maintenance of the
Project Facility by the District;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES
CONTAINED HEREIN, fI' IS MUTUALLY AGREED AS FOLLOWS:
I, DEFINITION OF TERMS
All terms which are defined herein shall have the same meanings for all purposes of this
Agreement, as amended and supplemented, and of any instrument or. document appertaining
hereto (except where the context by clear implication otherwise requires).
A. Billing Period shall, mean the period for which the prior three -months of service was
received,
B. BOD (Biochemical Oxygen Demand) shall, mean the quantity of oxygen utilized in
five (5) days in the biochemical oxidation of carbonaceous and nitrogenous compounds and
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certain inorganic materials in water or wastewater as determined by Standard Methods and
expressed in milligrams per liter.
C. Coital Costs shall mean the cost of capital replacements, alterations, additions and
improvements related to the Project Facility, but not including Project Costs or costs related to
increasing the capacity of the Project Facility and/or making improvements to provide service to
Other Users.
D. Chemical Oxygen Demand (COD) shall mean the quantity of oxygen utilized in the
chemical oxidation of organic and oxidizable inorganic matter in water or wastewater as
deterniined by Standard Methods and expressed in milligrams per liter.
B. Connection Point(s) shall mean the physical point at which the Municipality's
Collection System will be connected to the Project Facility, defined as the center of the structure,
The Connection. Point shall denote the division of the District and the Project Facility, from the
Municipality and its Collection System, said Connection Point also being the point, which
divides all responsibility for construction and maintenance between the parties. Actual
responsibility will be determined where the collection system pipe connects to the structure as
built. The Connection Point shall be located at the following sites:
1. Connection Point A: A connection point located in a tract of land conveyed to "St. Louis
County" as recorded in deed book 8042, page 323, of St. Louis County records, the location of
which is more particularly described as follows:
Commencing at the intersection of the East right-of-way line of a 20 foot wide private road as
shown on "Appel's Subdivision Oa The Meramec" a subdivision recorded in plat book 12, page
113 of St. Louis County records, and the North right-of-way line of Telegraph Road; thence in a
Northerly direction along said East right-of-way line a distance of 933 feet more or less to the
Northwest corner of a tract of land conveyed to "St. Louis County" as recorded in deed book
8042, page 323, of St. Louis County records; thence leaving said East right-of-way,
Northeasterly along the Northwesterly line of said "St. Louis County" tract a distance of 386 feet
more or less to a point on said Northwesterly line; thence leaving said Northwesterly line, in a
Southeasterly direction perpendicular to said Northwesterly line a distance of 214 feet more or
less to the Connection Point.
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2. Connection Point B: A connection point located in Lot 4 of "Anna 'i'. Harris Subdivision" a
subdivision recorded in plat book 3, page 30 of Jefferson County records, the location of which
is more particularly described as follows:
Commencing at the Northwest corner of a tract of land conveyed to Glenn W. Ford as recorded
in deed book 50I, page 839, of Jefferson County records, said corner lying on the Easterly right-
of-way line of Fannie Road (15' wide) and the Southerly line of Lot 4 of "Anna T. Hanis
Subdivision" a subdivision recorded in plat book 3, page 30 of Jefferson County records; thence
Northwesterly along the Southerly line of said Lot 4, a distance of 15 feet more or less to the
Southwest corner of said Lot 4 lying on the common right-of-way of `Burlington & Northern"
Railroad (varied width) and Fannie Road (15' wide); thence Northeasterly along the West line of
said Lot 4 also being the Easterly right-of-way of said `Burlington & Northern" Railroad, a
distance of 239 feet more or less to a point on said West line and Easterly right-of-way; thence
leaving said West line and Easterly right-of-way, in a Southeasterly direction perpendicular to
said West line, a distance of 190 feet more or less to the Connection Point.
F. Dew Allotted Share of Peak Flow shall mean the maximum instantaneous allowable
rate of flow that may be discharged by the Municipality to the Project Facility; the maximum rate
of flow from the Municipality that will be handled by the District without special or penalty
charge. The peak flow of the Municipality shall not be based on the design peak flow of the
Project Facility, peak flows from various areas not being additive.
G. Design Allotted Share of Average Flow shall mean the maximum annual average
daily allowable flow that may be discharged by the Municipality to the Project Facility; the
Municipality's annual average daily flow for which the Project Facility is designed; the
maximum annual average daily flow from the Municipality that will be handled by the District,
except as otherwise provided herein.
H. Design Allotted Share of BODE and Total Suspended Solids gas) Loads shall mean
the Municipality's allowable BOD5 and Total Suspended Solids Loads that may be discharged
over a period of twenty-four (24) hours based upon the average for thirty (30) consecutive days;
the Municipality's share of the total design BOD5 and Total Suspended Solids for which
facilities are designed in order to meet effluent criteria; the maximum BOD5 and Total
Suspended Solids for twenty-four (24) hours average for thirty (30) consecutive days from the
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Municipality that will be handled by the District without special or penalty charge except as
otherwise provided herein.
I. Executive Director shall mean the Executive Director for The Metropolitan St. Louis
Sewer District as provided in Section 6.010 of the Plan of the District, or his designee or other
duly authorized representative.
L IDduotrial Crnm.ection Sewer shall mean that portion of sewer line required to carry the
sewage of any industrial or commercial establishment from the last point of sewage entry on the
premises to the Municipality's Collection System or to carry the discharge from any industrial
pretreatment facility to the Municipality's Collection System.
K. Industrial Waste shall mean the water -borne wastes, including contaminated cooling
water, from industrial processes, as distinct from sanitary wastewater.
L. Industrial User shall mean any person who discharges into the District's wastewater
system from any source regulated under Section 307(b), (c), or (d) of the Clean Water Act or
from any source listed in Division A, B, C, D, E, or I of the Standard Industrial Classification
Manual or from any solid waste disposal operation such as, but not limited to landfills, recycling
facilities, solid or hazardous waste handling or disposal facilities, and centralized wastewater
treatment facilities (CWT's).
M. Load shall mean the quantity of wastewater characteristics such as BOD5, TSS, or
other constituents.
N. Local Project Cost shall mean that part of the Project Cost that is not paid for by
either State or Federal funding.
O. Management Fee shall mean a fee equal to ten percent (10%) of the Operation and
Maintenance Costs plus Capital Costs paid to the District to recover administrative and general
overhead costs.
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P. Municipality's Collection System shall mean those facilities for the collection and
transmission of wastewater owned and operated by the Municipality prior to interconnection
with the Project Facility, including future additions and improvements thereto, and those
facilities constructed by the Municipality in order to effect the interconnection with the Project
Facility.
Q. National Pollutant Discharge Elimination System NPDES).Permit shall mean a
permit issued under the National Pollutant Discharge Elimination System pursuant to Section
402 of the Clean Water Act for a discharge into the waters of the State.
R. Normal Wastewater shall mean wastewater that, prior to any treatment, contains not
more than 300 milligrams per liter of suspended solids and has a BOD5not greater than 300
milligrams per liter, and a COD not greater than 600 milligrams.
S. Operation and Maintenance Costs shall mean the cost of operation, maintenance and
administration directly related to the Project Facility. Such costs shall include, but not limited to:
personnel costs, laboratory analysis, equipment costs, materials and supplies, operating costs for
buildings and plants (utilities, maintenance of grounds, etc.) and administrative and general
expenditures (telephone, copier costs, office supplies, etc.) and all other costs necessary for
operation and maintenance of the Project Facility.
T. Other User shall mean any person, firm, corporation, or other entity, whether
municipal or otherwise, discharging sewage to the Project Facility by use of facilities other than
the Municipality's Collection System.
U. Peak Flow shall mean the maximum instantaneous rate of flow that is discharged by a
User to the Project Facility.
V. Person shall mean not only a natural person, corporation, or other legal entity, but
also two or more natural persons, corporations, or other legal entities acting jointly as a fmn,
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partnership, unincorporated association, joint venture, or otherwise.
W. Pretreatment shall mean the reduction or elimination of pollutants or the alteration of
the nature of pollutant properties in wastewater to a more acceptable state prior to discharge to
the District's wastewater system.
X. Pretreatment Regulations or Pretreatment Standards shall mean all applicable Federal
rules and regulations implementing Section 307 of the Federal Water Pollution Control Act, as
well as any non - conflicting State or local standards. In cases of conflicting standards or
regulations, the more stringent thereof shall be applied.
Y, Project Facility shall mean the facilities for the transmission, storage, treatment,
recycling, and reclamation of industrial and domestic wastewater, to be constructed in ac-
cordance with Section la of this Agreement, and includes any device, facility, structure,
equipment or works owned or used by the District, for the purpose of the transmission, storage,
treatment, recycling, or reclamation of industrial and domestic wastes, or necessary to recycle or
reuse water at the most economical cost over the estimated life ofthe system, including outfall
sewers, pumping, power, and other equipment, and their appurtenances, extensions,
improvements, remodeling, additions, and alterations thereof; elements essential to provide a
reliable, recycled supply such, as standby treatment units and clear well facilities; and any works,
including easement access rights and property acquisition, that will be an integral part of the
treatment process or are used for ultimate disposal of residues resulting from such treatment as
described in Attachment A..
Z. Project Cost shall mean all reasonable and necessary costs and expenses incurred by
the District in designing, financing, and constructing the Project Facility, including but not
limited to: costs and expenses for obtiining necessary permits, licenses, approvals and grants for
design and construction; architects', contractors', and engineers' fees; the cast of labor, material,
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supplies, and services actually used in design and construction; fees for legal and consulting
services; land and easement acquisition costs (except as provided in Section III with respect to
the acquisition of certain easements necessary for the Municipality to construct portions of its
Collection System in St. Louis County); debt service; interest on bonds or other obligations
issued by the District to finance the Project Cost.
AA. Sanitary Wastewater shall mean wastewater emanating from the sanitary
conveniences, including toilet, bath, laundry, lavatory, and/or kitchen sink of residential and non-
residential sources, as distinct from industrial waste.
BR Service (dares shall mean the Operation and Maintenance Costs plus the Capital
Costs and Management Fee.
CC. Sewage is used interchangeably with, and shall have the same meaning as, the term
"Wastewater."
DD. Standard Industrial Classification Manual (SIC Manual) shall mean the latest edition
of said publication by the Executive Office of the President, Office of Management and Budget.
EB. Storm Water Inflow shall mean any flow occurring during or immediately following
any form of natural precipitation and resulting there from and entering the sanitary sewers of the
Municipality's Collection System.
FF. Total Suspended Solids (TSS) shall mean all matter in water, wastewater, or other
liquids; that is retained on a filter as determined by Standard Methods and expressed in
milligrams per liter. Total Suspended Solids is also known as Nonfilterable Residue (NFR).
GG. 201 FLAN shall mean the document entitled "Final 201. Facility Plan, Lower
Meramec River Basin" by The Metropolitan St. Louis Sewer District dated September, 1979, and
approved by the Division of Bnvirormiental Quality of the Missouri Department of Natural
Resources on February 27, 1980, together with the associated Environmental Impact Statement
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(EPA 907/9-79-004) (EPA-7-MO-St. Louis, St. Louis Con ty-WWTP-79), approved by the
Environmental Protection Agency on July 11,1979.
HTd. 208 PLAN shall mean the document entitled "St. Louis, Missouri Water Quality
Management Plan - Areawide Waste Treatment Management Study (208)" by the East-West
Gateway Coordinating Council dated May, 1978, as approved by the Missouri Clean Water
Commission on February 23, 1979, certified by the State of Missouri on May 10, 1979, and by
the United States Environmental Protection Agency on December 27, 1979.
II. User shall mean any person who discharges, or causes the discharge of wastewater
into the District's wastewater system or who discharges or causes the discharge of storm water or
any NDPES permit regulated effluent or any other waste into the District's storm water system
or any person served by the District's system.
IL Waste shall mean any material other than unpolluted water that is accidentally or
purposely discarded into the District's system.
KK. Wastewater shall mean the water -borne wastes, industrial waste and/or sanitary
wastewater as defined herein, emanating from residential and non-residential sources together
with such groundwater, surface water, or storm water as cannot be avoided.
IL GENERAL PROVISIONS
A. Securing of Grants
The District and the Municipality agree that they shall cooperate in securing grants to
make any necessary improvements to the Municipality's Collection System. The District shall
assist the Municipality in securing any State and Federal grants for which the Municipality is
eligible.
B. Ordinances
Both parties agree to enact ordinances authorizing all actions necessary and proper for the
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execution of this Agreement.
C. Authorized Entry
Any duly authorized employee of the District bearing proper credentials and
identification shall be permitted access to such premises within the Municipality as may be
necessary for the purpose of inspection and observation, measurement, sampling and testing, in
accordance with the provisions of this Agreement.
D. gnfqrcam.ent of Regulations
The Municipality agrees to conform with and enforce all minimum standards, ordinances,
rules, regulations and requirements of the District and all applicable State and Federal laws,
rules, and regulations concerning wastewater discharges, including pretreatment regulations,
standards and prohibitions, monitoring, and reporting within the Municipality's Collection
System.
Wastewater emptied into the District's Project Facility from the Municipality's
Collection System shall be in conformity with the current ordinances and current regulations
pertaining to sewers or sewage within the District and/or in accordance with all State and Federal
laws, rules, and regulations, whichever is the most restrictive. Wastewater not in conformity with
such rules and regulations shall not be permitted to flow through the sewers of the Municipality
into the Project Facility.
E. Amendments - Federal and State Regulations
The Municipality and the District agree to abide by any changes in this Agreement made
necessary in order to comply with any revisions or amendments to State or Federal laws, rules, or
regulations.
F. Successors
Subject to the terms and conditions of this Agreement, wherever the District or the
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Municipality, as the case may be, is referred to herein, such provision shall be deemed to include
the successors of the District or the Municipality, as the case may be, whether so expressed or
not. Subject to the terms and conditions of the Agreement, all of the covenants, stipulations,
obligations and agreements by or on behalf of and other provisions for the benefit of the District
or the Municipality contained herein shall bind and shall inure to the benefit of such successors
and shall bind and shall inure to the benefit of any officer, board, district, commission, authority,
agent, or other instrumentality to whom or to which there shall be transferred by or in accordance
with law any powers, duties or functions of the District or the Municipality, respectively, or of its
successor, the possession of which is necessary or appropriate in order to comply with any such
covenants, stipulations, obligations, agreements, or other provisions hereof.
C. Design Review
The District shall have the right to review, for informational purposes and without charge
to the Municipality the designs, specifications, and criteria for additions or modifications to any
portion of the Municipality's Collection System connected directly or indirectly to the Project
Facility; provided, however, that nothing in this paragraph or this Agreement shall be construed
as giving the District a right of approval or disapproval of such additions or modifications_
H. Plans and Specifications Relating to Industrial Wastewater Treatment
Plans, specifications, and any other pertinent information relating to treatment or
pretreatment facilities, holding tanks, control and neutralization equipment or other facilities to
be utilized in the treatment orcontrol of Industrial Wastewater discharged to the Municipality's
Collection System shall be submitted for review to the District and no construction of such
facilities shall be commenced until• said plans, specifications, and information are approved by
the District, which approval shall not be unreasonably withheld if the plans, specifications, and
information submitted shall comply with the published standards of the District.
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I. Inspection and Testing
The Municipality shall, with respect to property owned by it or under its control, allow
the District Industrial Waste Testing personnel and such personnel from the State or Federal
agencies, upon the presentation of proper credentials:
(1) To enter premises where an effluent source is located or in which any records arc required to
be kept under the terms of this Agreement; and
(2) At reasonable times to have access to or copy any records required by this Agreement, State
or Federal laws, or regulations to be kept by the Municipality, and
(3) To inspect, repair or adjust any monitoring equipment or monitoring method required by the
terms of this Agreement; and
(4) To sample any User of the Collection System for pollutants and wastewater flow.
The Municipality shall, when requested under reasonable circumstances, assist District
personnel in making such investigations of property and inquiry of persons discharging sewage
into the Municipality's Collection System within the boundaries or jurisdiction of the
Municipality.
I. Reports and Records
Persons discharging sewage to the Collection System of the Municipality 'hall make all
reports required by Municipal ordinances, rules or regulations directly to the Municipality. The
Municipality shall require within its boundaries or jurisdiction that all such reports be made to it
and shall cause copies of all such reports to be sent to the District, upon request by the District.
The Municipality agrees to furnish and make available to the District any and all
Municipal records, information, plans, and other data necessary for the District's establishment,
operation, and maintenance of the Project Facility, and for the establishment of the sums to be
paid by the Municipality to the District pursuant to Section IV of this Agreement.
The District agrees to provide an accounting of Project Costs to the Municipality as
various portions of the Project Facility are scheduled and programmed, and continuing until the
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Project Facility is completed. The accounting shall itemize and explain all costs to be included in
the Project Cost, the basis for annual amortization, and the cost of the Municipality's attributable
and allocable share thereof.
The District shall maintain separate accounting of Operation and Maintenance Costs and
Capital Costs related to the Project Facility. The District agrees to furnish upon request to the
Municipality, at intervals not to exceed twelve months starting with commencement of service
and thereafter coinciding with the District's fiscal year, such accounting records and all other
information, plans and data of the District which the District has utilized in determining
Operation and Maintenance Costs and Capital Costs related to the Project Facility and in
calculating the Municipality's attributable and allocable share thereof.
Ill. CONSTRUCTION OF PROJECT FACILITY' AND CONNECTION TO
COLLECTION SYSTEM
A. Location of Facility
The District agrees to design, construct, and operate the Project Facility as soon as is
reasonably practical and to obtain all necessary governmental approvals for the design,
engineering, construction, acquisition, ownership, operation, and maintenance of the Project
Facility. The Project Facility shall be located at the following site:
A tract of land as described as the MSD Mera nec Treatment Plant, Boundary Adjustment Plat
recorded in Plat Book 352, Pages 594 — 595 in St. Louis County, Missouri.
The District may expand the Project Facility from time to time beyond the Municipality's Design
Allotted Share as the District deems necessary, without cost to the Municipality, The District
may connect Other Users to the Project Facility, provided that the District meets the obligation to
the Municipality to provide the Design Allotted Share set forth herein and provided the District
does not reduce the quantity of treatment provided to the Municipality at any time.
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Should the Municipality require additional capacity beyond its Design Allotted Share and
should such additional capacity require construction beyond that contemplated herein, the parties
shall attempt to reach a mutually satisfactory agreement on a method of financing construction
for such additional capacity and, the District agrees that it shall provide the additional capacity if
the Municipality agrees to bear the entire cost, if any.
B. Connection to Project Facility
The Municipality hereby agrees that it will connect the Municipality's Collection System
to the Project Facility by constructing a gravity sewer to the Connection Point(s). The date of
connection was November 8, 2007.
The Municipality shall pay all costs relating to the construction of the gravity sewer pipes
connecting the Collection System to the Project Facility at the Connection Point(s), and the cost
of physical connection(s).
1V. TREATMENT DESIGN ALLOTTED SHARE
The District hereby agrees to design and construct the Project Facilityto provide the
following Design Allotted Share capacity of the Project Facility to the Municipality:
(I) Design Share for User's Average
Annual Flow in 1,000 gallon units per 4,500
operating day:
(2) Design Share for User's Peak Flow in
1,000 gallon units per twenty-four (24) 18,000
hour day:
V. FINANCING THE PROJECT FACILITY
A. Financing the Project Facility
The Local Project Cost for the Project Facility (which shall include the cost of land and
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easement acquisition) shall be borne equitably by the Municipality and all Other Users. The
Municipality's proportionate share of the Local Project Cost for the Project Facility shall be
calculated in accordance with Attachment A. The Municipality shall be excluded from the cost
of constructing facilities necessary to connect any Other User to the Project Facility.
The Municipality shall pay to the District its proportionate share of each phase of the
Local Project Cost for the Project Facility in equal quarterly installments with annual interest
over a period of twenty-five (25) years, billing and payments shall commence Jsr wsiry 2008.
The annual interest shall be that rate of interest which is the average rate of interest paid on
municipal revenue sewerage bonds, rated "AA" or its equivalent, on a regularly established
market for such bonds, as of the date the District first advances funds for the construction of the
Project Facility. The Municipality and the District have agreed to a rate of 4.35 % per annum
based on the October 2003 start of construction of the phase I work as defined in Attachment A.
The rate of interest charged for future phases will be determined as described above.
B. Financing Change Order Numbers 8,.11.13 and 16
The total amount of change order numbers 8,11, 13, and 16, associated with the Lower Meramec
River System Improvements project (95066), Telegraph Road Drop Shaft, billed to the Municipality was
S842,161.72. Of this total, the Municipality paid $662,161.72 to MSD on October 8, 2008. Both parties
agree that the difference of $180,000.00 will be resolved pursuant to Section XIV of this agreement.
This Sewerage System Agreement supersedes the Intergovernmental Cooperation Agreement executed
on May 23, 2005.
C. Charge for Late Payments
Any monies owed that remain unpaid pursuant to a payment schedule or due date as
indicated in this agreement shall bear interest, equal to one and one-half percent (1 54 %) per
month or 18% annum, until such time as the balance is paid in full.
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VI. RATES FOR SERVICE BY THE DISTRICT
A. Service Charges for the Project Facility.
The Municipality shall pay to the District.a service charge for treatment and disposal of
wastewater delivered to the Project Facility. The District shall bill the Municipality such service
charge at the end of each billing period and the Municipality shall make payment to the District
within thirty (30) days of the billing. The service charge shall commence upon permanent and
continuous diversion of the flows from the Municipality's Collection System to the Project
Facility.
The service charge to be billed to the Municipality and all Other Users shall be based on
Operation and Maintenance Costs, the Capital Costs and a Management Fee equal to ten per cent
(10%) of the Operation and Maintenance Costs and Capital Costs.
The Municipality's Operation and Maintenance Costs for the billing period shall be
calculated as the proportional share of the Municipality's total metered sewage volume delivered
to •the Project Facility during the billing period to the total metered volume delivered to the
Project Facility by the Municipality and all other Users.
The Municipality's Capital Costs shall be based on their share of the actual cost incurred
during the previous year by the District for expenditures over and above those included in the
Operations and Maintenance Costs. Payments shall be made in equal installments based on the
billing period over the course of the next year.
To facilitate billing, the District agrees that it shall maintain accounting records relating
to the Operation and Maintenance Costs and Capital Costs attributable to the Project Facility,
separate and apart from accounting records relating to any other District facility. Such records
shall be audited annually by a certified public accountant and shall be available for inspection by
elected or administrative officials of the Municipality at reasonable times.
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B. Special Service Charges
Costs incurred by the District in assisting in the location and elimination of prohibited
discharges within the Municipality's Collection System shall be borne by the Municipality. Any
costs incurred by the District will be billed to the Municipality.
C. State or Federal Feed
The Municipality shall be responsible for its share of cost incurred by the District as
assessed by the state and/or federal regulators.
D. Charge for Lath Payments
Any charges billed that remain unpaid by the due date indicated on the bill rendered shall
bear interest, equal to one and one-half percent (1 Js %) per month or 18% annum, until such
time as the balance is paid in full.
VIL COLLECTION SYSTEM AND CONNECTIONS
A. Risibility for Collection System
The Municipality shall retain the responsibility for construction, operation, maintenance,
and ownership of facilities comprising its Collection System and future additions thereto and
shall retain all contractual and managerial obligations associated with such Collection system
facilities, subject to the rights of the District as expressly set out in this Agreement. The
Municipality agrees to maintain in good repair its sewers connected to the Project Facility and to
reduce infiltration/inflow to levels that are consistent with existing and any future District
requirements.
B. Other User's Right to Connect
The Municipality agrees to allow any Other User within its watershed to connect to the
Municipality's Collection System, provided that the Municipality's Collection System has
sufficient reserve capacity to carry the total flow and the total flow does not exceed their Design
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Allotted Flows.
C. Municipality's Collection System and Centrolof Connections
Sewer connections to the Municipality's Collection System that are Municipal or
Sanitary and Improvement Districts under the jurisdiction of the Municipality shall be controlled
by the Municipality. Current records will be maintained by the Municipality and made available
to the District upon request by the Executive Director or duly authorized representative. New
connections shall be limited to wastewater only and the number of connections authorized within
the Municipality's Collection System shall be the sole responsibility of the Municipality and its
duly authorized representatives.
D. Stp;m Water Connections Prohibited
The municipality shall not make or permit to be made any storm water connections which
will contribute directly or indirectly into the Municipality's Collection System, this includes but
is not limited to storm water run-off from surface drains; ditches; streams; storm sewers; roof,
area -way or foundation drains; or any other source. The Municipality shall work as
expeditiously as possible to eliminate all existing storm water connections to the Municipality's
Collection System. After the date of this Agreement, construction specifications for all sewers
constructed in the Municipality's collection System shall provide that infiltration of ground water
shall not exceed 200 gallons per inch diameter per mile in 24 hours.
VEIL INDUSTRIAL WASTE CONTROL
The Municipality shall enact and enforce ordinances embodying the following standards
within the Collection System jurisdiction of the Municipality.
A. P: phibited f scharg_e5
No person shall discharge or convey, or permit or allow to be discharged or conveyed to
the Municipality's Collection System any wastewater containing pollutants of such character or
Page 19 of 29
November 7, 2008
quantity that will:
(1) not be susceptible to treatment or interfere with the process or efficiency of the Project
Facility treatment system; or
(2) constitute a hazard to human or animal life, or to the stream or water course receiving the
Project Facility effluent; or
(3) violate pretreatment regulations or standards; or
(4) cause the Project Facility to violate its NPDES permit or applicable receiving water
standards.
B. Toxic Substanceq
Any toxic substances in amount exceeding standards promulgated by the Administrator
of the United States Environmental Protection Agencypursuant to Section 307(a) of the Federal
Water Pollution Control Act, and chemical elements or compounds, phenols or other taste or
odor production substances, or any other substances which are not susceptible to treatment or
which may interfere with the biological processes or efficiency of the Project Facility's treatment
system, or that will pass through the system, shall not be discharged.
C. Excessive Discharge late.
Wastewater at a flow rate or containing such concentrations or quantities of pollutants
that exceed for any time period longer than fifteen (15) minutes more than five (5) times the
average twenty-four (24) hour concentration, quantities or flow during normal operations and
which would cause a treatment process upset and subsequent loss of treatment efficiency shall
not be allowed.
D. PreaTatrncat Facilities Operation
If pretreatment or control of waste flows is required, such facilities shall be maintained in
good working order and be operated as efficiently as possible by the person discharging such
Page 20 of 29
November 7, 2008
waste at his own cost and expense, subject to the requirements of all applicable rules,
regulations, codes, ordinances, and laws.
E. Hazardous Wasted
It is agreed and understood that the parties to this Agreement are, or may be subject to
Section 311 of the Federal Water Pollution Control Act, as it applies to oil and hazardous wastes,
and to any applicable State law or legislation, under the authority preserved by Section 510 of
the Federal Water Pollution Control Act.
F. Enforcement of Regulations
The Municipality agrees to conform with and enforce all ordinances, rules, regulations
and requirements of the District pertaining to the collection and disposal of Industrial
Wastewater, and both parties agree to conform with all applicable State and Federal laws, rules
and regulations_
IX. INDUSTRIAL MONITORING AND REPORTING
To comply with regulatory requirements, all industries classified as existing or new
sources by the United States Environmental Protection Agency, having either acceptable or
unacceptable wastes, must file with the District all reports and analyses required by District
ordinances, rules and pretreatment regulations of the flow and strength characteristics of their
wastewater discharge in terms of BODs, suspended solids, grease, PH, categorical pretreatment
standards and any other parameter required by the District or the United States Environmental
Protection Agency or the Missouri Department of Natural Resources to comply with the Gal,
Pretreatment Regulations, Pretreatment Standard, NPDES Permits or sludge disposal regulations.
Industries regulated by the Pretreatment Regulations must file all required reports and
submit self -monitoring reports semi-arninnily to the District during months selected by the
District for reporting by regulated industrial subcategories. Reporting of information by
Page 21 of 29
November 7, 2008
industries not regulated by Pretreatment Regulations will be done according to District
ordinance. From time to time the District may require 24 hour flow proportion composite
samples to be split and given to the District Industrial Waste Division Laboratory for
verification. Such samples shall be representative of a normal average production day. Any
additional costs for obtaining the additional samples or testing shall be paid for by the Industrial
User involved.
Measuring, sampling and analysis of wastewater will be conducted in a manner that will
reflect the amounts and characteristics of the wastes being discharged into the Project Facility,
and in accordance with uniform procedures as specified in Standard Methods For The
Examination Of Water And Wastewater, published jointly by the American Public Health
Association, the American Water Works Association and Water Pollution Control Federation, or
any other methods developed by and/or acceptable to the United States Environmental Protection
Agency.
X. MEASUREMENT — SAMPLING AND TESTING
A. Facilities and Responsibility
The District will include in the Project Cost monies expended for the construction of
measurement, sampling, and analysis facilities and equipment. The -District will include in
Operation and Maintenance Cost monies expended for the sampling and analysis of industrial,
municipal, and other wastewaters considered necessary by the District.
B. Flow Recorder
To facilitate a fair and equitable charge being billed by the District, the Municipality
agrees to the installation, at the Municipality's expense, of automatic flow recorders to be
approved by and operated by the District in the Municipality's jurisdictional limits and
immediately upstream of the Connection Point(s) and at such other locations as the parties hereto
Page 22 of 29
November 7, 2008
may mutually agree upon. in writing.
C. Independent Calibration
The parties hereto agree that within 60 days of execution of this agreement the automatic
flow recorders will be calibrated by an independent calibration firm,. A firm mutually agreed to
by both parties will be hired, at MSD's expense, to perform annual calibration and provide a
certification form to both parties. Both parties will be notified when the calibration will be
performed.
D. ,Sampling Devices
To facilitate a fair and equitable measurement of normal wastewater loads being
discharged into the District's collection system, the Municipality agrees to the installation, at the
Municipality's expense, of automatic sampling devices to be approved by and operated by the
District in the Municipality's jurisdictional limits and immediately upstream of the Connection
Point(s) and at such other locations as the parties hereto may mutually agree upon in writing.
E. Reporting New Industries
The person or department authorized to issue building permits within the jurisdictional
limits of the Municipality shall notify the District of any new industries locating within such
jurisdictional limits as soon as such location is known to such person or department.
F. Admission to Property
Whenever it shall be necessary for the purposes of monitoring compliance with any
applicable laws, rules, or regulations, or with the provisions of this Agreement, District
personnel, upon the presentation of proper credentials, may enter upon any property or premises
at reasonable times for the purpose of:
(1) copying any records required to be kept under the provisions of this Agreement; and
(2) inspecting any monitoring equipment or methods; and
Page 23 of 29
November 7, 2008
(3) sampling any discharge of wastewater to the Municipality's Collection System.
District personnel may enter upon such property at any hour under emergency circumstances.
G. Protection from Accidental Discharge
Each Industrial User shall provide protection from accidental discharge of prohibited
materials or other wastes regulated by District ordinances. Facilities to prevent accidental
discharge of prohibited materials shall be provided and maintained at the Industrial User's own,
cost and expense. Detailed plans showing facilities and operating procedures to provide this
protection shall be submitted to the District for review, and shall be approved by the District
before construction of the facility. Review and approval of such plans and operating procedures
shall not relieve the Industrial User from the responsibility to modify its facility as necessary to
meet the requirements of District ordinances.
H. Reporting of Accidental Discharge
If, for any reason, an Industrial User does not comply with orwill be unable to comply
with any prohibition, limitation, or standard in District ordinances, the Industrial User
responsible for such noncompliance shall immediately notify the District and the Municipality so
that corrective action may be taken to protect the Project Facility. In addition, a written report
addressed to the Executive Director of the District detailing the date, time, and cause of the
accidental discharge, the quantity and characteristics of the discharge and the corrective action, if
any, taken to prevent future discharges, shall be filed by the responsible Industrial User within
five (5) days of the occurrence of the noncompliance.
L Mold Harmless
The Municipality agrees that authorized personnel of the District may malce such entry
onto the lands of the Municipality as may be necessary to permit necessary measuring and
sampling of wastes of the Municipality discharges into the Project Facility and for all other
Page 24 of 29
November 7, 2008
necessary purposes in connection with the acquisition, construction, operation, repair, and
ice of the Project Facility. The District agrees to hold Municipality harmless from any
and all claims, including reasonable attorneys' fees and costs, made for property damage or
bodily injury resulting from the action of the Disstrict's employees or agents occurring on the
property of the Municipality and while acting in the course of District employment
XL DAMAGES TO THIRD PARTIES
The Connection Point(s) shall initially determine the division of responsibility between
the Municipality and the District with respect to their liability for damages caused to third
parties, such that the parties hereto shall be liable to third parties for blockages, backups, and
other maintenance breakdowns occurring within their respective areas of responsibility.
SEVERABILITY
If any term, covenant, or condition of this Agreement or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term, covenant, or condition to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby and each
term, covenant, or condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
XIII. ESCAPE CLAUSE
If found to be in the best interest of the public and the District, non-compliance with this
agreement may be reason for termination of tit of flows but not termination of any future
financial obligations associated with phase 2 and 3 as defined in Attachment A.
%IV. DISPUTE RESOLUTION
Any dispute arising out of this Agreement will be resolved, on a confidential basis, by arbitration.
To begin the process either party may deliver to the other party a written notice describing the
dispute and the demand. The parties agree to meet within 30 days of the receipt of the demand and
Page 25 of 29
November 7, 2008
in good faith and using commercially reasonable efforts try to resolve the dispute by negotiation. If
45 days after this meeting the dispute remains unresolved either party may start binding arbitration.
A • single arbitrator jointly selected by the parties shall conduct the arbitration. If the parties are
unable to agree upon an arbitrator, they shall apply jointly to the Federal Mediation and Conciliation
Service which shall furnish a list of at least five (5) arbitrators from which the parties shall select one
by alternately stag off the others, the party seeking arbitration striking first. The decision of the
arbitrator shall be final and binding upon the parties. The Arbitrator shall not have authority to alter,
amend change or add to the provisions of this Agreement. Each party will pay the fees of its own
attorneys, expenses of witnesses and all other expenses and costs in connection with the presentation
of their case. The arbitration costs, including but not limited to, the arbitrator's fees, costs of records
or transcripts and administrative fees will be borne equally by the parties. Neither arbitration under
this section nor any legal action, regardless of its form, related to or arising out of this agreement
may be brought more than. two (2) years after the cause of action first accrued.
XV. SECTION HEADS
All section and paragraph headings are inserted for convenience only and will not affect
the construction or interpretation of this Agreement.
XVI. EXECUTION OF COUNTERPARTS
This Agreement may be simultaneously executed in several counterparts, each of which
so executed shall be deemed to be an original, and such counterparts together will constitute but
one and the same Agreement, which will be sufficiently evidenced by any such original
counterpart.
XVIL NOTICE
Any notice hereunder to the District shall be deemed to be property served if delivered or
mailed to the District at
Executive Director
Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103
Any notice hereunder to the Municipality shall be deemed to be properly served if
Page 26 of 29
November 7, 2008
delivered or mailed to the Municipality at:
City Administrator
21017effco BIvd.
Arnold, Missouri 63010
Page 27 of 29
November 7, 2008
IN WITNESS WHEREOF, the parties hereto have set their hands on the day and year first above
written.
THE CITY OF ARN
MiSSOURI
By:By:
Mark Powell, Mayor ]e
ATTEST BY:
THE METROPOLITAN ST. LOUIS
SEWER. DISTRICT
ATTEST BY:
By: �Xi�iL,�7.1 By:
Dian a aller, City Clerk Karl T
STATE OF MISSOURI
COUNTY OF JEFFERSON
On thisof
) SS.
)
in the year 2008 before me, a Notary Public in and for said
state, personally appear Mark Powell, the Mayor of the City of Arnold, Missouri, known to me to
be the person who executed the within Contract on behalf of the City of Amold, Missouri, and
acknowledged to me that the executed the same for the purpose therein stated.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal.
qtThPublic
Y
" NOTARY SEAL "
Pamela M. Migneco, Notary Public
Jefferson County, State of Missouri
My Commission Expires 2I26/2O11
Commission Number 073908828
Page 28 of 29
November 7, 2008
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this i day of the year 2008, before me, a Notary Public in and for said
state, personally appeared Jeffrey Theerman, the Executive Director of The Metropolitan St.
Louis Sewer District, known to me to be the person who executed the within Contract on behalf
The Metropolitan St. Louis Sewer District, and acknowledged to me that he executed the same
for the purposes therein stated.
In Testimony whereof, I have hereunto set my hand and affixed my official seat
Page 29 of 29
November 7, 2008
November 1, 2007
LOWER MERAMEC RIVER SYSTEM IMPROVEMENTS (95066)
UPDATED PRELIMINARY FLOW SHARE ESTIMATES
PARTICIPANT
Metropolitan St. Louis Sewer District Flow
Arnold Flow
Total Average Daily Flows (mgd)
Metropolitan St. Louis Sewer District Flow Ratio
Arnold Flow Ratio
EXISTING PHASE I PHASE II PHASE III
1.50 12.20* 23.50 43.50
3.00 4.50 4.50 4.50
4.50 16.70* 28.00 48.00
33% 73% 84% 91%
67% 27%* 16% 9%
Values forwarded to Arnold dated July 24, 2002.
MUD current values are 10.50, 15.00, and 30% respectively.
WWTP COLLECTION WVVTP COLLECTION
SHARE SHARE COST COST
DESIGN SERVICES COSTS PERCENT PERCENT SHARE SHARE
E-$97 WWTP Design $6,835,322 R 9.00% $615,119
E-898 Lift Station/Tunnel Design $3,665,940 F 6.00% $219,966
Design Costs Subtotals $10,501,262 R $615,179 $219,956
CONSTRUCTION PROJECTS
95066E Site Preparation
$1,292,400 R 9.00% $116,316
95066D Slte Preloading Phase I $9,661,144 F 9.00% $889,503
95066M WWTP Cutfall Sewer $6,963,006 F 9.00% $628,871
95066S Wetlands Mitigation $222,692 F 9.00%$20,042
95066A Wastewater Treatment Plant $82,460,523 R 9.00% $7,421,447
95066K Electrical Supply (Sub, Primary & Secondary) $3,237,902 R 5.0096 4.00% $161,895 $129,516
95066P Site Preloading Phase II $2,386,516 E 9.00% $214,786
95066J Natural Treatment Area (Grant) $2,668,002 •E 9.00% $240,120
95066F Educational/Recreational Facility (Grant) $3,416,957 E 9.00% $307,526
950661-I Site Restoration/Landscaping $201,600 E 9.00%$18,144
95066E Baumgartner Tunnel $55,945,000 R 3.00% $1,678,350
Arnold Drop Shaft $772,830 F 9.00% $69,555
95066L Lift Station (includes 95086L1) $32,567,051 R 9.00% $2,931,035
95068N Baumgartner lagoon Closure $3,910,000 R 0.00% $0
95066R Maltase Creek Sewer $2,392,834 F 0.00% $0
Construction Costs Subtotals $208,098,257 R $9,996,451 $4,808,455
CONSTRUCTION MANAGEMENT
E-977 WWTP Construction Management (A1) $7,870,000 R 9.0096 $708,300
E-897 WWTP CM Services/Design (A-SDC) $3,170,678 R 9.00% $285,361
E-985 Lift Station Construction Management (81) $5,450,000 R
E-898 Lift Station CM Services/Design (B-SDC) $1,514,860 F
Construction Management Costs Subtotals $18,005,538 R
OTHER COSTS
Meramec Lagoon Cell No. 1 Closure $1,207,549 F 9.00%
Meramec Lagoon Cell No. 2 & 3 Aeration $243,880 F 9.00%
Montgomery Watson (Facility Plan Update) $430,000 F 9.00%
Earth Tech (Grant Application) $146,465 F 9.00%
Archaeological Research Center Phase I $3,985 F 9.00%
Archaeological Research Center Phase II & i11 $136,920 F 9.00%
Ameren Easement (Outfail Sewer) $60,000 F 9.00%
Menendez Property (Site Preparation Const. Access) $25,479 F 9.00%
Ameren Power Line Relocation (138 kVA) $388,440 F 9.00%
Tunnel Easements $203,225 R
Meramec Lagoon Cell No. 2 & 3 Closure $3,500,000 E 9.00%
Permit Coats (Added April 27, 2004) $705,500 E , 9.00%
SRF Finance Costs (Added April 27, 2004) $1,000,000 E 9.00%
Other Costs Subtotals $8,051,443 R
8.00%
6.00%
3.00%
$327,000
$90,892
$993,661 $417,892
$108,679
$21,949
$38,700
$13,182
$359
$12,323
$5,400
$2,293
$34,960
$315,000
$63,496
$90,000
$706,340
$6,097
$6,097
SUBTOTAL COSTS $244,658,500 R $12,311.630 $6,452,400
Federal Grant (Added April 27, 2004) -$11,584,300 E 9.00% ($1,042,587)
ARNOLD'S COST SHARE PHASE I R $11,209,043 S5,452,400
FUTURE CONSTRUCTION COSTS
Estimated Future Const. Casts (Added April 27, 2004) $100,000,000 E 9.00% $9,000,000
ARNOLD'S TOTAL EST. COST SHARE R $20,289043 $5,452,400
ARNOLD'S DIRECT COSTS
Intergovernmental Agreement May 23, 2005
Telegraph D. S.Revisions (Added March 9, 2006)
Notes:
F = Final Cost
E = Estimated Cost (Original)
R = Revised Estimated Cost
Costs do not include Interest
$846,447 R 100.00% $846,447
APPENDIX D
AssEt tURCHASEAGIKE,EMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into on the 18th day of
December 2014 by and between Missouri -American Water Company, a Missouri corporation ("Missouri -
American"), and The City of Arnold, Missouri ("Seller"). Hereinafter, MMissouri American and Seller may
be referred to individually as a "Party" or together as the "Parties"
RECITALS:
A. Seller currently owns and operates a sanitary sewer system consisting of approximately
600,000 linear feet of sewer lines, as shown on &WWI attached hereto, with six pumping systems and a
SCADA system that provides sewer service to approximately 8,800 residential, commercial and industrial
customers within the City of Arnold and approximately 496 customers located outside the City of Arnold,
including pursuant to an intergovernmental agreement with the Rock Creek Public Sewer District (the "Rock
Creek Agreement') which also covers wastewater sent EXOM commercial customers within the City limits to
the Rock Creek Public Sewer District (collectively, the "System") in or neat the City of Arnold, Missouri.
B. Seller desires to sell substantially all of the assets that constitute or Are used in furtherance of
the System to Missouri -American pursuant to the terms and conditions of this Agreement
NOW, THEREFORE, in consideration of the foregoing recitals, and the representations,
warranties, and covenants contained herein, and in exchange for other consideration, the receipt and
sufficiency of which are hereby acknowledged, the Patties, intending to be legally bound, agree as follows:
ARTICLE 1
Definitions and Related Matters
For purposes of this Agreement, the capitalized terms used herein shall have the meanings assigned
to them herein or in the attached fahihtt2 and, for purposes of this Agreement and all other documents
executed in connection herewith, the rules of construction set forth in Exhibit 2 shall govern.
ARTICLE 2
Purchase and Sale of Assets; Closing
2.1 Transfer of Assets. On and subject to the terms and conditions of this Agreement, at the
Closing on the Closing Date and effective as of the Effective Time, Missouri -American shall purchase,
acquire and accept from Seller, and Seller shall sell, convey, transfer, assign and deliver to Missouri -American,
free and clear of all Encumbrances, the Acquired Assets. Notwithstanding anything to the contrary contained
in this Section 2.1 or elsewhere in this Agreement, the Excluded Assets ere not part of the sale and purchase
contemplated hereunder, are excluded from the Acquired Assets, and shall remain the exclusive property of
Seller subsequent to the Closing.
2.2 Consideration.
(a) The consideration for the System and the Acquired Assets shall consist of the Purchase
Price. At Closing, Missouri -American shall pay to the Seller and such other payees, if any, set forth on
scly yle 24, in accordance with wire transfer instructions to be provided by tine Seller to Missouri -
American at least ten, (10) Business Days prior to the Closing Date, in immediately available funds, an
aggregate amount equal to the Purchase Price Immediately following its receipt of the Purchase Price, Seiler
shall (s) pay over to the DNR an amount equal to the aggregate amount then payable by Seiler to the DNR
and (it) provide to Missouri -American a receipt and payoff letter, in form and sube;tance reasonably
acceptable to Missouri -American and duly executed by the DNR, as to the DNR's receipt of such amount
1
44606411.6
(b) Missouri -American shall prepare the Allocation, which Allocation shall be binding upon
Seller. The Fatties shall report, act; and file Tax Returns in all respects and for all Tax purposes consistent
with the Allocation. No Party shall take any Tax position (whether in audits, Tax Returns, or otherwise) that
is inconsistent with or contrary to the Allocation. In the event that the Allocation is disputed by any
Governmental Authority, the Party receiving notice of such dispute will promptly notify the other Party, and
the Parties will consult in good faith as to how to resolve such dispute in a manner consistent with the
Allocation.
2.3 &gumption of Liabilities, Excluded Liabilities. Upon the terms and subject to the
satisfaction or, if permissible, waiver, of the conditions of this Agreement, at the Closing on the Closing Date
and as of the Effective Time, Missouri -American shall assume and discharge, when and as due, only the
Assumed liabilities. Notwithstanding anything in this Agreement to the contrary, the Excluded Liabilities
shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller.
2.4 Closing. Unless this Agreement is first terminated pursuant to Article 8 hereof, and subject
to the satisfaction or, if permissible, waiver of each of the conditions set forth in Article 5 hereof; the Closing
well take place at the offices of Bryan Cave LI.P, 211 N. Broadway, Suite 3600, St. Louie, Missouri 63102 or
such other place or by such other means (e.g, e-mail/PDF or facsimile and overnight delivery of original
execution documents) as is agreed to by the Parties at 10:00 A.M., Central time, on (a) such date as is three (3)
Business Days after the date on which all of the conditions set forth in Article 5 hereof shall have been
satisfied or (to the extent permissible) waived (other than those conditions which, by their nature are to be
satisfied or waived at Closing but subject to their satisfaction or waiver at Closing) or, if Missouri -American
shall so elect, the final day of Seller's billing period of which such date is a part or (b) such other date as the
Patties hereto may agree upon in writing. In any event, the Closing shall be effective as of the Effective
Time.
Closing:
2.5 Imo' g Obligetions.
In addition to any other documents to be delivered under other provisions of this Agreement, at
(a) Seller shall deliver or cause to be delivered to Missouri -American, together with funds
sufficient to pay all Taxes necessary for the transfer, if applicable, and filing or recording thereof the
following documents:
(i) the Bill of Sale, duly executed by Seller;
(it) the Intangible Assignments, duly executed by Seller
(sit) the Assignment and Assumption Agent, duly executed by Seder;
(iv) the Franchise Agreement, duly executed by Seller;
(v) all Consents and approvals front Governmental Authorities, and third parties under
Contracts, necessary to ensure that Missouri -American will continue to have the same full rights with respect
to the Acquired Assets as Seller had immediately prior to the consummation of the Contemplated
Transactions, including the written Consents, in form and substance reasonably acceptable to Missouri -
American, of the Governmental Authorities and third parties set forth in Schedule 25(e)(v);
(vi) a payoff letter from each lender from which Seller has incurred indebtedness i'or
borrowed money which is outstanding, if any, and from each petson or entity listed on Soule 2,2, and a
release of all Encumbrances relating to the Acquired Assets executed, filed end/or recorded by the holder of
2
4460645.6
or parties to each such Encumbrance (including without limitation any violations cited by the Missouri
Department of Natural Resources or any other Governmental Authority with authority over the System or
the Acquired Assets), if any, in each case in substance and form reasonably satisfactory to Missouri -American
and its counsel;
(vie) if applicable, an affidavit, as provided in Section 1445(b)(2) of the Code, stating
under penalties of perjury that Seller is not a foreign person within the meaning of Section 1445(f)(3) of the
Code;
(via) for each interest in Real Property and each easement and/or right-of-way affecting
any Real Property or Acquired Asset; whether or not identified on Schedule 3.4, a recordable warranty deed
or such other appropriate document or instrument of transfer or approval, as the ®se may require, each in
form and substance reasonably satisfactory to Missouri -American;
(ix) such other deeds, bills of sale, assignments, certificates of title, documents and other
instruments of transfer and conveyance as may reasonably be requested by Missouri -American, each in form
and substance reasonably satisfactory to Missouri -American;
(x) a copy of each permit, license, easement, land -tight and other necessary authority
for the operation of the System and the Acquired Assets, in each case validly issued in the name of the Seller
and in full force and effects
(xi) if applicable, a copy of Tax clearance certificates (or equivalent,) indicating Seller has
no Tax due and dated within 30 days of Closing from any jurisdictions for which Seller may be subject to
Tax, including, without limitation, Missouri;
(xii) • the certificate contemplated by Section 5.1(d);
(xiii) a legal opinion of Seller's legal counsel, affirmatively opining to such matters as
Missouri -American or its legal counsel may reasonably request, including but not limited to the clue
authorization and execution of this Agreement by Seller and the enforceability thereof
(xiv) a copy, certified by a representative of the governing body of Seller to be tote,
complete and correct as of the Closing Dere,, of the governing documents sad authorizing resolutions of
Seller authorizing and approving the Contemplated Transactions and as to the incumbency and signatures of
the authorized representatives of Seller executing this Agreement or any of the Transaction Documents on
behalf of Seller
(xv) to the extent such transfer is requested by Miissouti-American, evidence satisfactory
to Missouri -American of the transfer of all utilities with respect to the System from Seller to Missouri -
American;
(xvi) the Lease, duly executed by Seller and
(evil) all other documents, instruments and writings required or reasonably requested by
Missouri American to be delivered at or prior to the Closing pursuant to this Agreement or otherwise
required in connection herewith.
(b)
At or prior to the Closing, Missouri -American shall deliver the following:
(i) to the Seller and such other payees set forth on Schedule 22, if any, in accordance
with wire transfer instructions to be provided by the Seller to Missouri -American at least ten (10) Business
4460643.6
3
Days prior to the nosing Date, in immediately available funds, an aggregate amount equal to the Purchase
Price;
(u) to the Seller; the Intangible Assignments, duly executed by ]Vfissouri American;
(iii) to the Seller, the Assignment and Assumption Agreement, duly executed by
Missouri -American;
(iv) to the Seller, the Lease, if applicable, duly executed by Missouri -American, for any
premises of Seller to be leased by Missouri -American poet -dosing; and
(v) to the Seller, all other documents, instruments and writings required or reasonably
requested by Seller to be delivered at or prior to the Closing pursuant to this Agreement or otherwise
required in connection herewith.
ARTICLE 3
Representations and Warranties of Seller
Seller hereby makes the following representations and warranties to Missouti-American, each of
which is true and correct on the date hereof, will be true and correct at Closing and shall survive the Closing
and the Contemplated Transactions hereby to the extent set forth herein:
3.1 'Pose;mod Authority. Seller has full power and authority to conduct the Business and the
System as they are now being conducted and to own, lease and operate the System and the Acquired Assets.
3.2
(a) This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms. Seller has the absolute and unrestricted right, power and
authority to execute and deliver this Agreement and the Transaction Documents and to consummate the
Contemplated Transactions. The appropriate governing bodies of Seller have duly authorized the execution,
delivery, and performance of this Agreement by Seller and no other proceeding on the part of Seller is
necessary to authorize the execution, delivery and performance of this Agreement
(b) This Agreement has been, and the Transaction Documents will be, duly executed and
delivered by Seller.
(c) Neither the execution, delivery or performance by Seller of this Agreement or the
Transaction Documents nor the consummation by it of the Contemplated Transactions will. ® routravete,
conflict with or result in a violation of any provisions of the ordinances or other governing documents of
Seller, (it) contravene, conflict with or result in a violation of or give any Goneahal Authority of other
Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or obtain any
relief under any Laws or any Order to which Seller or any of the Acquired Assets may be subject, (rut)
contravene, conflict with or result in a violation of any of the terms or requirements of or give any
Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify any Permit or
other authorization by a Governmental Authority that is held by Seller or that otherwise relates to the
System or any of the Acquired Assets, (iv) contravene, conflict with or result in a violation or breach of any
provision of, require the Consent of any Person under, or give any Person the right to declare a default or
exercise any remedy under or to accelerate the maturity or performance of or to cancel, terminate or modify
any Contract, indenture, mortgage, note, lease or other instrument or document to which Seller is a party or
by which any of the Acquired Assets are bound or (v) result in the imposition or creation of any
Encumbrance upon or with respect to any of the Acquired Assets.
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(d) No filings or registrations with, notifications to, or authorizations, Consents or approvals of,
a Governmental Authority or third party are required to be obtained or made by Seller in connection with
the execution, delivery of performance by Seller of this Agreement or the Transaction Documents or the
consummation by Seller of the Contemplated Transactions except related to the MoPSC approval. Neither
the Contemplated Transactions nor the Transaction Documents will, result in the creation of any
Encumbrance against any of the Acquired Assets.
3.3 Assets. Seller has clean;, good, and marketable title to, or a valid leasehold interest in, all of
the Acquired Assets, free and clear of all Encumbrances. None of the Acquired Assets are leased or on loan
by Seller to any third party. The Acquired Assets constitute all of the assets and property that, together with
the rights granted or conveyed under the Transaction Documents, are necessary for the operation of the
System, the Business and the Acquired Assets as conducted as of the date hereof Upon the Closing
Missouri -American shall continue to be vested with good title or a valid leasehold interest in the System and
all of the Acquired Assets. The Business constitutes all of the business conducted by any Person in
connection with the System.
3.4
(a) With limited exceptions that are identified in §^chedule 3.4(b)0 or Schedule 3.4(10), end
which do not impact the operation of the sewer system, Seller owns and has good and marketable tide to the
Real Property, free and clear of all options, leases, covenants, conditions, easements, agreements, claims, and
other Encumbrances of every kind and there exists no restriction on the use or transfer of such property.
Set forth on Schedule 3.4(a) is a complete and a ccuMte listing of all Real Property. Seller is not the lessor or
lessee of any real property, and there are no outstanding options, rights of first refusal or rights of first offer
to purchase any of the Real Property or any portion thereof or interest therein. Seller has made available to
Missouri -American copies of all title reports, surveys, title policies and appraisals relating to the Real
Property. At and after the Closing, Missouri -American shall have the right to maintain or use the Real
Property, including the space, facilities or appurtenances outside the building lines, whether on, over or
under the ground, and to conduct such activities thereon as maintained, used or conducted by Seller on the
date hereof and such right is not subject to revocation. At and after the Closing Missouri -American shall
have all rights, easements and agreements necessary for the use and maintenance of sewer pipelines, or other
like facilities, and appurtenances thereto, over, across and under the Real Property.
(b) The Real Property is properly classified under applicable zoning Laws, ordinances, and
regulations for the current and continued operation of the System on the Real Property. No Proceeding is
pending or threatened which could adversely affect the ,zoning motion of the Real Property. Seller's
current use and occupancy of the Real Property and its operation of the System thereon does not violate any
casement, covenant, condition, restriction or similar provision in any instrument of record or other
unrecorded agreement affecting such Real Property. The present use and operation of the Real Property does
not constitute a non -conforming use and is not subject to a verisnce. Seller has not received any notice of
violation of any easements, covenants, restrictions or similar instruments and there is no basis for the
issuance of any such notice or the taking of any action for such violation. Set forth on Schedule 3.4(140
hereto is a true, correct and complete list of all easements relating to the Real Property or the Acquired
Assets. All of such easements arc valid and will be transferred to Missouti-Arnerican and remain in Cull force
as of the Closing. Set forth on l hereto is a true, correct and complete list of all rights of
way relating to the Real Property or the Acquired Assets. All of such sights of way arc valid and will be
transferred to Missouri -American and remain in full force as of the Clow. All Improvements located on,
and the use presently being made of, the Real Property comply with all applicable zoning and building codes,
ordinances and regulations and all applicable fire, environmental, occupational safety and health standards
and similar standards established by Law and the same use thereof ley l sovai-Auericaa follow ae Closing
will not result in any violation of any such code, ordinance, regulation or standard There is no proposed,
5
4460648.6
pending or threatened change in any such code, ordinance, regulation or standard which would adversely
affect the Business, the System or the Acquired Assets.
(c) With limited exceptions that are identified in 5chedulc_3.4(4and which do not impact the
operation of the sewer system, no Improvements encroach on any land that is not included in the Real
Property or on any easements affecting such Real Property, or violate any building lines or set -back lines, and
there are no encroachments onto the Real Property, or any portion thereof, which would interfere with the
use or occupancy of such Real Property or the continued operation of the System ascurrently conducted.
(d) There is no applicable unpaid property Tax, levy or assessment against the Real Property
(except for Encumbrances relating in Taxes not yet due and payable), nor is there pending or threatened any
condemnation Proceeding against the Real Property or any portion thereof
(e) Except as set forth in Schedule 3.4(;), there is no condition affecting the Real Property or
the Improvements located thereon which requires repair or correction to restore the same to reasonable
operating condition.
3.5 Personal Property. Set forth on Schedule 3.5(a) is a complete and accurate listing of all
Acquired Assets which are personal property. Except as set Earth in Schedule 3.$(b): (i) no Acquired Asset
which is personal property is in the possession of others (other than immaterial items temporarily in the
possession of others for maintenance or repair), (ii) neither Seller nor any of its Affiliates holds any such
property on consignment, and (iii) each item of such Acquired Assets has been maintained in accordance with
normal industry practice, is in good operating condition and repair (subject to normal wear and tear) and is
suitable for the purposes for which it is presently used.
3.6 No Undisclosed Liabilities, Except (a) to the extent and for the amount reflected as a
Liability on the balance sheet included in the Unaudited Financial Statements, (b) liabilities incurred in the
Ordinary Course of Business since the date of the most recent balance sheet included in the Unaudited
Financial Statements (none of which will or may reasonably be expected to have an adverse effect upon the
Business), or (c) as set forth on Schedule_3.6, Seller does not have any Liabilities (with respect to the System,
the Business or the Acquired Assets) whatsoever, known or unknown, asserted or unasserted, liquidated or
unliquidated, accrued, absolute, contingent, or otherwise, there is no basis for any claim against Seller, the
System or any of the Acquired Assets for any such liability and there is no basis for any such liability to
bccotrie the Liability of NTissouti Arru ion from and after the Closing.
3.7 Tax Matters.
(a) Seller has timely and properly filed all Tax Returns, if any, that it was requited to file. There
ate no Encumbrances on any of the Acquired Assets that arose in connection with any failure (or alleged
failure) to pay any Tax. •
(b) Seller has withheld and paid all Taxes requited to have been withheld and paid in connection
with any,amounts paid or owing to any employee, independent contractor, credits member, stockholder, or
other third party. Poems W-2 and 1099 required with respect thereto have been properly completed and
timely filed.
(c) 'There are no audits or examinations of any Tax Returns pending or threatened that relate to
Seller's operation of the System or the Acquired Assets.
(d) None of the Acquired Assets represent property or obligations of Seller, including but not
limited to uncashed checks to vendors, customers or employees, non -refunded overpayments or urnlitimed
subscription balances, that is escheatable to any Governmental Authority under any applicable escheatment
6
4460648.6
Laws as of the date hereof or that may at any time after the date hereof become escheatable to any
Governmental Authority under any applicable escheatment Law.
3.8 Contractl. Set forth on Schedtj3.8(p) is a complete and correct list of all Contracts related
to the System to which Seller is a party or is otherwise bound. Seller has delivered or caused to be delivered
to Missouri -American correct and complete copies of each such Contract (including any and all
amendments), a description of the terms of each such Contract which is not in writing, if any, and all
documents affecting the rights or obligations of any party thereto. None of such Contracts have been
modified or amended except as disclosed on Schedule 3.8(b). Neither Seller nor any of its Affiliates has
received any written notice of any intention to terminate, repudiate or disclaim any such Contract Except as
set forth on Schedule 3.8(b): ® each such Contract is valid and enforceable in accordance with its terms and
is in full force and effect, and each such Contract constitutes a legal, valid and binding obligation of the other
parties thereto, enforceable against them in accordance with its terms except as such enforcement may be
limited by bankruptcy, insolvency or other simian Laws affecting the sights of creditors generally and by
general principles of equity; (a) no default and no event which, with the giving of notice, lapse of time, or
both, would result in a default has occurred under any such Contract (iii) there are no setoffs, counterclaims
or disputes existing or asserted with respect to any such Contract, and Seller has not made any agreement
with any other party thereto for any deduction from or increase to any amount payable thereunder; (iv) there
are no facts, events or occurrences which in any way impair the validity or enforcement of any such Contract
or tend to reduce or increase the amounts payable thereunder; (v) Seller has not, directly or indirectly, by
operation of Law or otherwise, transferred or assigned all or any pert of its right, title or interest in and to any
such Contract to any other Person; and (vi) unless identified in Schedule 3.8(b), there are no Proceedings
pending nor, to the Knowledge of Seller, threatened against any party to any of such Contracts which relate
to the subject matter of the said Contract. No such Contract automatically terminates or allows termination
by the other party thereto upon consummation of the Contemplated Transactions. At and after the Closing,
Missouri -American shall have and be entitled to exercise ap of its rights under each Assumed Contract,
without the . payment of any additional amounts or consideration other than ongoing fees,-royallties or
payments that Seller would otherwise be required to pay had the Contemplated Transactions not occurred.
Further, there is no Contract of service in force between Seller and any of its directors, shareholders, officers
or employees which is not terminable by Seller without compensation on less than three (3) months' notice
given at any time or which provides for compensation specifically in connection with the Contemplated
Transactions. There are no consultancy or management services agreements in existence between Seller and
any other Person with respect to the Business.
3.9 Estvirsonmental Matters.
(a) Except as otherwise more fully set out in Schedule 3.9(a), Seller is and at ail times has been
in full compliance with and has not been and is not in violation of or liable under any applicable
Environmental Law. Seller has no basis to expect nor has it received any actual or threatened Order, notice
or other communication from any Governmental Authority or other Person of any actual or patunhtisl
violation or failure to comply with any Environmental Law or of any actual or threatened obligation to
undertake or bear the cost of any Environmental,Health and Safety Liabilities with respect to the Real
Property or any other properties or assets (whether real, personal or mired) in which Seller has or has had an
interest or with respect to the Real Property or any other real property at or to which Hazardous Materials
were generated, manufactured, refined, transferred, imported, used or processed by Seller or any other
Person for whose conduct it is or may be held responsible, or from which Hazardous Materials have been
transported, treated, stored, handled, transferred, disposed, recycled or received.
(b) There are no pending or threatened claims, Encumbrances or other restrictions of any
nature, resulting from any Environmental, Health and Safety Liabilities or arising under or pursuant to any
Environmental Law with respect to or affecting the Real Property or any other properties and assets
(whether real, personal or mixed) in which Seller has or had an interest.
7
4460648.6
(e) Neither Seller nor any other Person for whose conduct it is or may be held to be responsible
has any Environmental, Health and Safety liabilities with respect to the Real Property or with respect to any
other properties and assets (whether real, personal or mixed) in which Seller (or any predecessor) has or has
had en interest or at any property geologically or hydrologically adjoining the Real Property or any such other
property or assets that could reasonably be expected to have a material adverse effect thereon.
(d) There are no Hazardous Materials, except those used in connection with the operation of
the System and set forth in the list on Schedule 3.9ftil present on or in the Environment at the Real Property
or at any geologically or hydrologically adjoining property, including any Hazardous Materials contained in
barrels, above or underground storage tanks, landfills, land deposits, dumps, equipment (whether moveable
or fixed) or other containers, either temporary or permanent and deposited or located in land, water, sumps
or any other part of the Real Property or such adjoining property or incorporated into any structure therein
or thereon. Neither Seller nor any other Person for whose conduct it is or may he held to be responsible has
permitted or conducted, or is aware of, any Hazardous Activity conducted with respect to the Real Property
orany other properties or assets (whether real, personal or mixed) in which Seller has or has had an interest
except in material compliance with all applicable Environmental Laws. There has been no Release or threat
of Release, of any Hazardous Materials at or from the Real Pity or from or by any other properties and
assets (whether real, personal or mixed) in which Seller has or has had an interest, or any geologically or
hydrologically adjoining property, whether by Seller or any other Person.
(e) Except as set forth in Schedule 3.9(e), none of the following exists at the System or on the
Real Property: (1) underground storage tanks; (2) asbestos -containing material in any form; (3) materials or
equipment containing polychlorinated biphenyl; (4) groundwater monitoring wells; or (5) landfills, surface
impoundments, or disposal areas.
(f) Except as set forth in Schedule 3.9(f) neither Seller nor any of its Affiliates is obligated to
provide financial assurance in consideration of the System under Environmental law.
(g) Seller has delivered to Missouri -American true and complete copies and results of any
reports, studies, analyses, tests or xur nitoring possessed or initiated by Seller or its predecessors pertaining to
Hazardous Materials or Hazardous Activities in, on or under the Real Property, or concerning compliance by
Seller, its predecessors, or any other Person for whose conduct Seller is or may be held to be responsible,
with Environmental laws, said reports, studies, etc to include without limitation, any anti all Phase I
environmental reports now or hereafter in the possession or control of Seller.
3.10 permits. Set forth on Schedule 3.111(a) is a complete and correct list of all Permits used by
Seller in the continuing operation of the System. Except as set forth on Schedule MO( , such Permits
constitute all those necessary for the continuing operation of the System and are all valid and subsisting and
in full force and effect. No fact or circumstance exists which is reasonably likely to cause any such Permit to
be revoked or materially altered subsequent to the execution of this Agreement and the Closing Date.
Neither the execution of this Agreement nor the Closing do or will constitute or result in a default under or
violation of any such Permit.
3.11. Inamantr„. Seller maintains and has maintained appropriate insurance necessary foe the full
protection of all of its assets, properties, the System, operations, products and services. AR such policies are
in full force and effect and Seller will use commercially reasonable efforts to cause such policies to be
outstanding and in full force and effect as of Closing. Seller further agrees to maintain such insurance
coverage immediately following the execution of this Agreement and the consummation of the Contemplated
Transactions to the extent allowed by its unique coverage as a political subdivision of the State of Missouri.
There are no pending Proceedings arising out of, based upon or with respect to any of such policies of
insurance and, to Seller's Knowledge, no basis for any such Proceedings exists. Seller is not in default with
respect to any provisions contained in any such insurance policies and no insurance provider is in default with
8
4460648.6
respect to such insurance policies. Set forth in Schedule 3.11 is a true and accurate list of all such insurance
policies Seller maintains, and the premiums therefor have been paid in full as they have become due and
pub
3.12 Absence of Certain_ Chimes. There has not been any occurrence or event which,
individually or in the aggregate, has had or is reasonably expected to have any Material Adverse Effect. Seller
has continually operated the System and the Business only in the Ordinary Course of Business. Without
limitation of the foregoing, Seller has not entered into, amended, terminated or received notice of termination
of any Permit necessary for the continued operation of the System. In addition, Seller has not taken any
action in connection with the System or the Business which, if taken on or after the date hereof; would have
required the prior written Consent of Missouri-Ansencan pursuant to Section. 6.6 hereof.
3.13 ' ' . There are no Proceedings, other than those listed on
Schedule 3.11 either pending or threatened, anticipated or contemplated, against Seller or involving the
operation of the System, any of the Acquired Assets, or any of Seller's members, shareholders, directors,
officers, agents or other governing persons, equity holders or personnel in their capacity as such, which could
directly affect arty of the Acquired Assets or the System. Seller has not been charged with, nor is it under
investigation with respect to, any charge which has not been resolved to its favor concerning any violation of
any applicable Law with respect to any of the Acquired Assets of the System and there is no valid basis fox
my such charge or investigation. Neither Seller nor any of its Affiliates has been subject to or threatened to
be subject to any Proceeding or Order relating to personal injury, death or property or economic damage
arising from products sold, licensed or leased and services performed by Seller or any of its Affiliates with
respect to the System or the Business. No judgment, Order, writ, injunction, decree, assessment or other
command of any Governmental Authority affecting Seller or any of the Acquired Assets or the System has
been entered which is presently in effect. There is no Proceeding pending or, to Seller's Knowledge,
threatened which challenges the validity of this Agreement or the Contemplated Transactions ox otherwise
seeks to prevent, directly or indirectly, the consummation of the Contemplated Transactions, nor is there any
valid basis for any such Proceeding.
3.14 Compliance with Laws. Seller is in compliance with all Laws, Permits, Orders, ordinances,
rules and regulations, whether civil or criminal, of any federal, state, local or foreign governmental authority
applicable to the System or the Business and has not committed any violation of any Law or any provision of
its governing documents applicable to the Acquired Assets and/or the operation of the System. Except as set
forth in Schedule 3.14 neither Seller nor any of its Affiliates has received any notice alleging such default;
breach or violation.
3.13 Financial Statementt. Attached as Schedule 3.15 are the Financial Statements. The
Financial Statements have been prepared in accordance with the requirements of the Governmental
Accounting Standards Board ("GASB'), subject in the case of the Unaudited Financial Statements to normal
year-end adjustments and the absence of footnotes. The Financial Statements were derived from the books
and records of Seller, are true correct and complete in all material respects and present fairly in all material
respects the financial condition, operating results and cash flaws of Seller as of the dates and during the
periods indicated therein (subject, in the case of the Unaudited Financial Statements, to normal year-end
adjustments and the absence of footnotes).
3.16 Transactions with Rasta Pasties. Except as set forth on Schedule 316, no governing
person or Affiliate of Seller has any financial interest, direct or indirect, in any supplier or customer of, or
other business which has any transactions or other business relationship with, Seller. Without limiting the
generality of the foregoing, neither Seller nor any of its Affiliates nor any governing person of Seller, any of
its Affiliates or the Business ess owns, directly or indirectly, any interest in or is an owner, sole proprietor,
member, stockholder, partner, director, officer, employee, consultant or agent of any Person which is a lessor,
lessee, customer, lin'n PP, or supplier of the Business and none of the employees of or servicing the Business
9
4460648.6
owns, directly or indirectly, in whole or in part, any tangible property, patent, trademark, service mark, trade
name, copyright, franchise, invention, Permit or license which was developed by or is used and necessary for
the operation of the Business.
3.17 Customer Advances. Set forth on Schedule 3.17 is a complete and accurate list
of (i) all unexpired Extension Deposit Agreements (or similar agreements) to which Seller is a party (each an
'Extension Deposit Agreement") and which contain unexpired obligations of Seller to provide for the
payment of periodic refunds to parties making advances for the construction of facilities for sewer service, (it)
all advances or prepayments made by any customer or other Person to Seller with respect to the System or
the service provided thereby and (iii) all other amounts payable (whether as a reimbursement or in the form
of a credit) by Seller to any customer or other Person with respect to the System or the service provided
thereby. Seller will provide to Missouri -American within IS days of the execution of this Agreement (to be
updated at Closing), true and complete copies of each such Extension Deposit Agreement. All records
of Seller relating to each Extension Deposit Agreement is complete and accurate in all material respects and,
together with the relevant Extension Deposit Agreement, is all the information reasonably required to
determine Seller's, and, consequently, Iulasouri-American's obligations to each party to the Extension Deposit
Agreements; and there are no disputes or disagreements with any party to an Extension Deposit Agreement
relating to the amount due under that agreement or the method of calculating that amount or in connection
with any advance, prepayment or amount payable of the type described in (a) or (dii) above. Schedule: 3.17
may be updated at Closing amply with the mutual consent of the parties.
3.18 Ancounta Receivable. Set forth on Schedule 3.18 is a list of all the accounts receivable of
Seller with respect to the System and an aging schedule related thereto, as of the date hereof Such accounts
receivable, together with any such accounts receivable arising between such date and the Closing Date
(collectively, the "Accounts Receivable"), are (to the extent not yet paid in full) valid, genuine and existing
and arose or will have arisen from bona fide sales of products or services actually made in the Ordinary
Course of Business. The Accounts Receivable are not subject to, and Seller has received no notice of; any
counterclaim, set -oil, defense or Encumbrance with respect to the Accounts Receivable. Except to the
extent paid prior to Closing, the Accounts Receivable are and will be current and fully collectible. No
agreement for deduction, free goods, discount or deferred puce or quantity adjustment has been made with
respect to any Accounts Receivable.
3.19 Brokers, Finders. Except as set forth in ,Schedule 3.19, no finder, broker, agent or other
intermediary, acting on behalf of Seller or any of Seller's Affiliates, is entitled to a commission, fee or other
compensation in connection with the negotiation or consummation of this
transactions contemplated hereby. Agreementoat of the
3.20 Employees. Schedule 3.20(a) contains a complete and accurate list of the following
information for each employee of the Seller, including each such employee on leave of absence or layoff
status: name, job title, current compensation paid or payable, any change in compensation since the date of
the most recent Audited Financial Statement, and hire date. Except as set forth in Schedule 3,2Q(, none of
such employees is a party to, or is otherwise bound by, any agreement or ar►atngement, including any
confidentiality, non -competition or proprietary rights agreement. between such employ sad any other
Person that in any way adversely afflicted, affects or may affect ® the performance of his or bez duties as an
employee of the Business, or (ii) the ability of Missouri -American to conduct the Business.
ARTICLE 4
Representations and Weeanties ofMissour ..Anmericcaat
Missouri -American hereby makes the following representations and warranties to Seitz
10
4460648.6
4.1 Qom. Missouri -American is a duly organized and validly existing corporation in
good standing under the Laws of Missouri and has the power and authority to own, lease and operate its
assets and properties.
4.2Enforcement; Authority: No Conflict
(a) This Agreement constitutes the legal, valid and binding obligation of Missouri American and
is enforceable against Missouri -American in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or other similar Laws affecting the rights of creditors generally and by
general principles of equity. MissouriAmerican has the absolute and unrestricted right, power and authority
to execute and deliver this Agreement and the Transaction Documents to which it is a party and to perform
its obligations hereunder and thereunder.
(b) Neither the execution or delivery of this Agreement nor the consummation of the
Contemplated Transactions shall result in: (i) a violation of or a conflict with any provision of the articles of
incorporation or the bylaws of Missouri -American, (it) a material breach of or default under any term,
condition or provision of any Contract to which Missouri -American is a party, or an event which, with the
giving of notice, lapse of time, or both, would result in any such breach or default; or (ut) a material violation
of any applicable Law, Order, judgment writ, injunction, decree or award or any event which, with the
giving of notice, lapse of time, or both, would result in any such violation.
ARTICLE 5
Conditions Precedent to Closing
5.1 Conditions Precedent to the Obligations of Missouri-Atnaer%gg. Missouri -American's
obligations to consummate the Contemplated Transactions are subject to the satisfaction in full, unless
expressly waived in writing by Missouri -American, of each of the following conditions:
(a) Authorization of Contemplated Transactions. Missouri American shall have obtained all
necessary corporate approvals to consummate the Contemplated Transactions, including, but not limited to
the approval of its Board of Directors;
(b) $entations and Warranties. Each of the representations and warranties of Seller
contained in this Agreement or in any Transaction Document shall have been true; correct and accurate in
all respects on and as of the date hereof and shall also be true, correct and accurate in all material respects
(other than Section 3.5 and representations and warranties qualified as to materiality, which shall have been
true, correct and accurate in all respects) on and as of the Closing Date with the same force and effect as
though made by Seller on and as of the Closing Date (except to the extent that any such representation or
warranty is made solely as of the date hereof or as of another date earlier than the Closing Date, which shall
be accurate as of such date);
(c) Covenants. Seller shall have performed, observed and complied in all material respects with
all of its obligations, covenants, undertakings and agreements contained in this Agreement or any
Transaction Document and required to be performed, observed or complied with by Seller prior to or at the
Coaingy
(d) Cglificates, Seller shall have delivered to Missouii-Amesiran a mate, dated as of the
Closing Date and executed by an officer or other duly authorised representative of Seer, to the effect that
the conditions set forth in Sections 5.1.(b). (c) and (i) have been sti.Q6ed
(e) Enzuglings, No provision of any Law or Order shall be in effect, and no Proceeding by any
Person shall be threatened ned or pending before any Gov aeots! Authority, or bed rimy arbitrator, which
11
4460648.6
would. (i) prevent consummation of the Contemplated Transactions; (it) have a likelihood of causing the
Contemplated Transactions to be rescinded following oonsummati ; (iii) adversely affect the right of
Missouri -American to own any of the Acquired Assets; or (iv) adversely affect the System prospects or the
value or condition of any of the Acquired Assets or the System;
(f) . Seller shall have delivered or caused to be delivered to Missouri -
American each of the items set forth in Section 2.5(a);
(g) Governmental and Third Party Approvals (i) Missouri -American shall have obtained a
certificate of convenience and necessity and all necessary regulatory approvals by the MoPSC, or any other
applicable regulatory body, and all other applicable Consents and approvals from Governmental Authorities
and other third parties which are required in connection with the Contemplated Transactions, each in form
and substance (mcluding without limitation with respect to the terms and conditions contained in any such
approval) acceptable to Missouri -American it its sole and absolute discretion, and (it) any waiting periods
under existing Laws, and all extensions thereof, the passing of which is necessary to consummate the
Contemplated Transactions, shall have expired;
(h) Due,Diligence, Missouri -American shall have completed and be satisfied, in its sole and
absolute discretion, With the results of its due diligence review of the Acquired Assets and Seller, including
without limitation, with the results of any Phase I Environmental Site Assessment or other environmental
assessment performed with respect to the Real Property or the Acquired Assets or chain of title search, all
material contracts and operating permits and licenses of the System, and the Seller's operations, contracts,
employment practices, compliance, accounting and other items as Missouri -American deems necessary, as
each of the foregoing items relate to the System or the Acquired Assets;
(i) liallaggiaLikintiazyjras,. Missouri -American shall have determined that there shall not
have occurred any event or circumstance which, individually or in the aggregate, has had or could reasonably
be expected to have a Material Adverse Effect; and
(I) Certain Agreements. Missouri American shall be party to an agreement, whether by
assignment and assumption of an existing agreement to which Seller and each such Person is a party or by
direct agreement between Missouri -American and each such Person, with each Person listed on Schedule
5,14) attached hereto, each in form and substance satisfactory to Missouri -American in its sole disemsinn.
5.2 Conditions Precedent to Obligations of Seller, Seller's obligation to consummate the
Contemplated Transactions is subject to the satisfaction in full, unless expressly waived in writing by Seller, of
each of the following conditions:
(a) Reptesentations and Warranties. Each of the representations and warranties of ll omi-
American contained in this Agreement or in any Transaction Document shall have been true, correct and
accurate in all respects on and as of the date hereof and shall also be true, correct and accurate in all material
respects (other than representations and warranties qualified as to materiality, which shall have been true,
correct and accurate in all respects) on and as of the Closing Date with the same force and effect as though
made by Missouri -American on and as of the Closing Date (except to the extent that any such representation
or warranty is made solely as of the date hereof or as of another date earlier than the Closing Date, which
shall be accurate as of such date);
(b) Covenatt Missouri -American shall have performed, observed and complied in di material
respects with all of its obligations, covenants, undertakings and agreements contained in this Agreement or
any Transaction Document and required to be petfortned, observed or complied with by I► ao i-Ame scan
prior to or at the Closing,
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(c) Proceedins. No provision of any Law or Order shall be in effect which would prevent
consummation of the Contemplated Transactions, and
(d) Closing Deliveries. Missouri -American shall have delivered or caused to be delivered to
Seller each of the items set forth in Section 2.5(b).
ARTICLE 6
Covenants and Special Agreements
6.1 Access to Information; C4entiallty
(a) Access. Between the date of this Agreement and the Closing Date, Missouri-Aotnenean may,
directly and through its representatives, make such confirmatory investigation of the System and the
Acquired Assets as each deems necessary or advisable. In furtherance of the foregoing, Missouri -American
and its representatives shall have reasonable access, upon reasonable notice du ing normal business hours, to
all employees, properties, books, Contracts, commitments and records of the Business, and Seller shall
furnish and cause to be furnished to Missouri -American and its representatives such financial and operating
data and other information as may from time to time be reasonably requested relating to the System, shall
permit Missouri -American or its representatives to conduct such physical inspections and environmental
audits of the Real Property as requested by Missouri -American and shall permit Missouri -American or its
representatives to conduct interviews of employees of or servicing the Business. Seller and the management,
employees, accountants and attorneys of or servicing the Business shall cooperate fully with Missouri -
American and its representatives in connection with such investigation.
(b) ranfific
(i) Prior to Closing (and, in the case of Seller, following Closing), each Party shall
ensure that all Confidential Information which such Party or any of its respective officers, directors,
employees, counsel, agents, or accountants may have obtained, or may hereafter' obtain, from the other Party
(or, in the case of Seller following Closing, with respect to the Business or the System) (or create using any
such information) relating to the financial condition, results of operations, System, properties, assets,
Liabilities or future prospects of the other Party, any Related Person of the other Party or any customer or
supplier of such other Party or any such Related Person (or, in the case of Seller following Closing, with
respect to the Business or the System) shall not be published, disclosed or made accessible by any of them to
any other Person at any time or used by any of them, in each case without the prior written Consent of the
other Party; provided, however, that the restrictions of this sentence shall not apply (i) as may otherwise be
requited by Law, (ii) to the extent such Confidential Information shall have otherwise become publicly
available, and (iii) as to Missouri -American, to disclosure by or on its behalf to regulatory authorities or other
third parties whose Consent or approval may be required to consunsmate the Contemplated Transactions and
to its lenders and professionals for the purpose of obtaining financing of such transactions.
(ii) In the event of termination of negotiations or failure of the Contemplated
Transactions to close for any reason whatsoever, each Party promptly will destroy or deliver to the other
Party and will not retain any documents, work papers and other material (and any reproductions thereof)
obtained by each Party or on its behalf from such other Party or its subsidiaries as a result of this proposal or
in connection therewith, whether so obtained before or after the execution hereof, and Wit not use any
information so obtained and will cause any information so obtained to be kept confidential and not used in
any way detrimental to such other Party.
6.2 Fublcity; Announcements. Until after the Closing, no press release or other public
statement concerning this Agreement or the transactions contemplated hereby shall be issued or made
without the prior approval of the parties hereto, except as required by applicable law. After the Closing, no
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press release or other public statement concerning this Agreement or the transactions contemplated hereby
shall be issued or made by Seller without the prior approval of Missouri -American, except as required by
applicable law.
6.3 Cooperation. Subject to the terms and conditions of this Agreement, the Parties shall
cooperate fully with each other and their respective counsel and accountants in connection with, and take or
cause to be taken and do or cause to be done, any actions requited to be taken under applicable Law to make
effective the Contemplated Transactions as promptly as practicable. Prior to the Closing, the parties shall
proceed expeditiously and in good faith to make such filings and take such other actions as may be reasonably
necessary to satisfy the conditions to Closing set forth in Section 5.l(g). From and after the Closing, the
parties shall do such acts and execute such documents and instruments as may be reasonably required to
make effective the transactions contemplated hereby. On or after the Closing Date, the parties shall, on
request, cooperate with one another by furnishing any additional information, executing and delivering any
additional documents and instruments, including contract assignments, and doing any and all such other
things as may be reasonably required by the parties or their counsel to consummate or otherwise implement
the transactions contemplated by this Agreement. Should Seller, in its reasonable discretion, determine after
the Closing that books, records or other materials constituting Acquired Assets are still in the possession of
Seller, Seller shall promptly deliver them to Missouri -American at no cost to Missouri -American. Seller
hereby agrees to cooperate with Missouri -American to ensure a proper transition of all customers with
respect to billing and customer service activities. Missou American shall take the lead in obtaining MOPSC
approval with respect to the Contemplated Transactions. •
6.4 Encluitivirg. Seller will not and will not permit its affiliates, officers, directors, employees or
other agents or representatives to, at any time prior to the termination of this Agreement, directly or
indirectly, (i) take any action to solicit, initiate or encourage the making of any Acquisition Proposal, or (it)
discuss or engage in negotiations concerning any Acquisition Proposal with, or further disclose any non-
public information relating to Seller to, any person or entity in connection with an Acquisition Proposal, in
each case, other than Missouri American and its representatives.
6.5 No Inconsistent Action. Prior to the Closing Date, no Party shall take any action, and
each Party will use its commercially reasonable efforts to prevent the occurrence of any event (but excluding
events which occur in the Ordinary Course of Business and events over which such Party has no controg,
which would result in any of its representations, warranties or covenants contained in this Agreement or in
any Transaction Document nor to be true and correct, or not to be performed as contemplated, at and as of
the time immediately after the occurrence of such action or event. If at any time prior to the Closing Date, a
Party obtains knowledge of any facts, circumstances or situation which constitutes a breach, or will with the
passage of time or the giving of notice constitute a breach, of any representation. warranty or covenant of
such Party under this Agreement or any Transaction Document or will result in the failure of any of the
conditions contained in Article 5 to be satisfied, such Party shall give the other Party prompt written notice
thereof, provided, however, that no such notice shall cure any breach of any representation, warranty or
covenant contained herein or therein or will relieve any such Party of any obligations hereunder or thereunder
unless specifically agreed to in writing by the other Party.
6.6 Conduct of Buaintfls. Between the date of this Agreement and the Closing Date, Seller
shall carry on the operation of the System, the Business and the Assets in the
Acquired Ordinary Course of
Business and in compliance with Law, not introduce any materially new method of management or operation,
use reasonable best efforts to preserve the System, the Business and the Acquired Assets, conserve the
goodwill and relationships of its customers, suppliers, Governmental Authorities and others having business
relations with it, maintain in full force and effect all policies of insurance now in effect for the benc&t of
Seller, maintain supplies at a level which is sufficient to operate the System in accordance with past practice
and maintain the Acquired Assets in substantially the condition currently existing, normal wear and teat
excepted. By way of illustration and not limitation, Seller will not, between the date hereof rind the Closing
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Date, directly or indirectly do, or prepare to do, any of the following without the prior written Consent of
Missouri-Ametecan (a) sell, lease, transfer or otherwise dispose of, or license, mortgage or otherwise
encumber, or give a security interest in or subject to any Encumbrances, any of the Acquired Assets, (b)
merge or consolidate with or acquire, or agree to merge or consolidate with or acquire (by merging or
consolidating with, or by purchasing a substantial portion of the stack or assets of, or by any other manner),
any business or corporation, partnership, joint venture, association or other business organization or division
thereof or otherwise change the overall character of the Business in any material way, (e) enter into any
Contract other than in the Ordinary Course of Business or amend, waive any right under or terminate any
Assumed Contract, (d) abandon, sell, license, transfer, convey, assign, fail to maintain or otherwise dispose of
any item of the transferred intellectual property, (e) make any change in any of its present accounting
methods and practices, (f) to the extent applicable, tnake any new Tax election, or change or revoke any
existing Tax election, or settle or compromise any Tax liability or file any income Tax Return prior to the last
day (including extensions) prescribed by Law, in the case of any of the foregoing, material to the business,
financial condition or results of operations of Seller, (g) engage in any transactions with any Related Person
which would survive Closing, (h) pay, discharge, settle or eatsfy any material claims or liabilities (absolute,
accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in
the Ordinary Course of Business or in accordance with their terms, of Liabilities reflected or reserved against
in the Financial Statements (or the notes thereto), or not required by GASB to be so reflected or reserved, or
incurred since the date of the most recent Audited Financial Statement in the Ordinary Course of Business,
or waive any material benefits of, or agree to modify any material confidentiality, standstill, non -solicitation or
similar agreement with respect to the Business to which Seller or any of its Af&liates is a party, (i) engage in
any activity with the purpose or intent of (A) accelerating the collection of accounts receivable or (B) delaying
the payment of the accounts payable, (j) enter into commitments for new capital expenditures in excess of
$25,000 in the aggregate, (k) create or issue or grant an option or other right to subscribe, purchase or redeem
any of its securities or other equity interests (other than with Missouri -American), (I) adopt a plan of complete
or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, merger,
consolidation, restructuring, recapitalization or reorganization or (tn) enter into any agreetnetit (conditional or
otherwise) to do any of the foregoing.
6.7 No Transfer at Odds with tow. Notwithstanding anything to the contrary contained
herein, nothing in this Agreement shall be deemed to require the conveyance, assignment at transfer of any
Acquired Asset or Assumed liability that by operation of applicable Law cannot be conveyed, assigned,
transferred or assumed. Each Party shall continue to use reasonable best efforts to obtain at the earliest
practicable date all unobtained Consents or approvals required to he obtained by it in connection with the
transfer of the Acquired Assets and Assumed Liabilities or performance of any Transaction Document. If
and when any such Consents or approvals shall be obtained, then Seller shall promptly, and hereby does,
assign its rights and obligations thereunder to Missouti-American without payment of consideration and
Missout American shall, and hereby does, without the payment of any consideration therefor, (x) assume
such rights and obligations or (ii) perform (or agree to perform) under such Transaction Document, as
applicable. Each Party shall execute such good and sufficient instruments as may be rimmiAry to evidence
such assignment and assumption. The entire beneficial interest in and to, and the risk of loss with respect to,
the Acquired Assets and the Assumed Liabilities shall, regardless- of when legal tide thereto shall be
transferred to Missouri -American, pass to Missouri -American at Closing as of the Effective Tone, and Seller
shall, without consideration therefor pay, assign and remit to Missouri -American all monies, rights and other
consideestion received in respect of such performance. To the extent permitted by Law, Seller shall exercise
ar exploit its rights in respect of such Acquired Assets only as directed by Missouri -American.
6.8 ikkafitsmtounktagege. Seller promptly shall take such actions as shall be requested by
Missouri -American to secure the release of all Encumbrances relating to the Acquired Assets, in each case in
substance and form reasonably satisfactory to Missouri -American and its counsel.
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4460648.6
6.9 Retention of Records. Subject to applicable Law and, subject to any applicable restrictions
as to confidentiality (as to which Missouri -American does not provide indemnification, or the waiver of
which Seller shall not have obtained after using reasonable best efforts), Seller shall preserve any books and
records relating to the System or the Business that are not delivered to Missouri -American hereunder for a
period no less than seven (7) years after the Closing Date (or such longer period as shall be required by
applicable Law), and Seller shall make available such books and records for review and copying to Mtssouri-
Ame ican and its authorized representatives following the Closing at Missouri -American's expense upon
reasonable notice during normal business hours. During such period, Seller shall permit, to the extent
permitted by applicable Law and upon request of Missouri -American, Missouri :American and any of its
agents, representatives, advisors or consultants reasonable access to employees of or servicing the Business
for information related to periods up to and including the Closing.
6.10 Tax Covenants.
(a) To the extent applicable, Seller shall pay all Taxes of Seller, the System and the Acquired
Assets for any Tax year or period (or portion thereof) ending at or before the Closing. For the purposes of
this Section 6.10(a), the portion of such peewee] property or similar ad valorem Tax that relates to the Tax
period ending as of the Closing shall be deemed to be the amount of such Tax for the entire Tax period
multiplied by a fraction, the numerator of which is the number of days in the Tax period ending as of the
Closing and the denominator of which is the number of days in the entire Tax period. For purpose of this
Section 6.10(a), the portion of all other Taxes that relates to the Tax period ending as of the Closing shall be
determined on the basis of an interim closing of the books.
(b) Each Party agrees to furnish or cause to be famished to the other Party, upon meet, as
promptly as practical, such information ('including reasonable access to books and records, Tax Returns and
Tax filings) and assistance as is reasonably necessary for die filing of any Tax Return, the conduct of any Tax
audit, and for the prosecution or defense of any claim, suit or Proceeding relating to any Tax matter. The
Parties shall cooperate with each other in the conduct of any Tax audit or other Tax Proceedings and each
shall execute and deliver such powers of attorney and other documents as are necessary to carry out the
intent of this Section 6.10(b).
ARTICLE 7
Indemnification
7.1 Survival of Representations and Wands and Covenants.
(a) All of the representations and warranties made by Seller in this Agreement, its Schedules, or
any certificates or documents delivered hereunder shall survive the Closing Date and consummation. of the
Contemplated Transactions for a period of three (3) years; provided, however, that the representations and
warranties contained in Sections 3.1, 3.2, 3.3, 3.5, 3.6, 3.7, 3.9 and 3.19 shall survive indefinitely.
7.2 ...1_:A . i _ s lu _+ ai L <. .� , �i c . ._ }' t ,# ? • Subject to the terns of this Article
7, Seller hereby agrees to fully pay, protect, defend, fruiPranify and hold harmless the Indemnified Persons
from any and all Damages arising out of; resulting from, relating to or caused by: (i) any inaccuracy in or
breach of (or any claim by any third party alleging or constitilthng an, inaccuracy or brcicla of) sway
representation or warranty of, or any failure to perform or nonfulfilment of any provision or coven
contained in this Agreement or any other Transaction Document by, Seller°, (it) rill. Liabilliesnd/ r duties of
Seller, whether accruing prior to or after the Closing Date, other than. the .Assumed 1. balati (iii) any
Encumbrance affecting the Acquired Assets; (iv) assessments, charges anti either molar claim .tine or owing,
directly or indirectly, by Seller or otherwise as a result of or on account of the Acquired Assam or the System
at any time prior to the Closing Date; (v) the ownership suidier operation of stay of the Aired Assets or
the System prior to Closing, other than to the extent of the Assumed Liabilities; (yi) any Proceeding Dour
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4460648.6
existing or hereafter arising and relating to the Acquired Assets or the System and arising from events or
matters occurring prior to the Closing Date, other than to the extent of the Assumed liabilities; (vii) any
Excluded Assets or Preluded Liabilities; (vii) any and all Taxes imposed on or arising from the transfer of
the Acquired Assets; (ix) intercompany accounts payable and accounts receivable by and among Seller and/or
its Affiliates; (x) transaction costs and expenses incurred by or on behalf of Seller in connection with this
Agreement or the Contemplated Transactions; or (xi) any matters described on Schedule 7.2,
73 jpdemnificatfon By Missouri -America Missouri -American hereby agrees to fully pay,
protect, defend, indemnify and hold harmless Seller and its respective successors and assigns, from any and all -
Damages incurred by any of them arising out of: resulting from, relating to or caused by O any inaccuracy in
or breach of any representation or warranty of, or any failure to perform or nonfulfillment of any provision
or covenant contained in this Agreement or any other Transaction Document by, Missouri -American, (it) the
Assumed Liabilities or (ii t) transaction costs and expenses incurred by or on behalf of Missouri -American in
connection with this Agreement or the Contemplated Transactions.
7.4 Notice of Clain. In the event that either petty seeks indemnification on behalf of an
Indemnified Person, such party seeking indemnification (the "Indemnified Party") shall give reasonably
prompt written notice to the indenunifying party (the "Indemnifying Party") specifying the facts constituting
the basis for such claitn and the amount, to the extent known, of the claim asserted; provided, however, that
the right of a person or entity to be indemnified hereunder shall not be adyme* affected by a failure to give
such notice unless, and then only to the extent that; an Indemnifying Party is actually irrevocably and
materially prejudiced thereby. Subject to the terms hereof, the Indemnifying Party shall pay the amount of
any valid claim not more than 10 days after the Indemnified Party provides notice to the Indemnifying Party
of such amount.
75 jtight to Contest Claims of Third Pet$Qrts. If an Indemnified Party is entitled to
indemnification hereunder because of a claim asserted by any Third Person, the Indemnified Pasty shall give
the Indemnifying Party reasonably prompt notice thereof after such assertion is actually known to the
Indemnified Party; provided, however, that the right of a Person to be indemnified hereunder in respect of
claims made by a Third Person shall not be adversely affected by a failure to give such notice unless, and then
only to the extent that, an Indemnifying Party is actually irrevocably and materially prejudiced thereby.
Missouri -American shall have the right, upon written notice to Seller, to investigate, contest or settle the
Third Person Claim. Seller may thereafter participate in (but not control) die defense of any such Third
Person Claim with its own counsel at its own expense. If Seller thereafter seeks to question the manner in
which Missouri -American defended such Third Person Claim or die amount or nature of any such settlement,
Seller shall have the burden to prove by dear and convincing evidence that conduct of Missouri -American in
the defense and/or settlement of such Third Person Claim constituted gross negligence or willful misconduct
The Parties shall make available to each other all relevant information in their possession relating to any such
Third Person Claim and shall cooperate in the defense thereof, provided that Iriissouri-American shall control
the defense thereof Promptly (and in any event within 10 days) following the resolution of any Third Person
Claim, Seller shall pay to Misaouri-Ametican any amount to which Missouti-Ame is entitled pursuant to
this Article 7 with respect to such Third Person Claim.
7.6 rtgrsidithaderatIon i atte t.
(a) Notwithstanding anything contained herein or elsewhere to the contrary, all "material" and
"Material Adverse Effect" or similar materiality type qualifications contained in the representations and
warranties set forth in this Agreement shall be ignored and not given any effect for purposes of the
indemnification provisions hereof; including, without liteitatioe, for purposes of determining whether or not
a breach of a representation or watvanty has occurred and/or determining the amount of any Damages.
17
4460648.6
(b) No information or knowledge acquired, or investigations conducted, by Missouri -American
or its representatives, of Seller or the System or otherwise shall in any way limit, or constitute a waiver of, or a
defense to, any claim for indemnification by any Indemnified Persons under this Agreement.
ARTICLE 8
Termination
8.1 Imagination. This Agreement may be terminated at any time prior to the Closing only (a)
by mutual written Consent of Seller and Mlssoun-American, (b) by Seller or Missouri -American upon written
notice to the other, if the Closing shall not have occurred on or prior to July 1, 2015; preacided. however, that
the right to terminate this Agreement under this Section 8.1(b) shall not be availabk to any Party whose
breach under this Agreement has caused or resulted in the failure of the Closing to occur on or before such
date; (c) by i ssouri-American, if Missouri -American is not in material breach of any of its representations,
warranties, covenants and agreements under this Agreement and there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement on the part of Seller and Seller
has not cured such breach within five (5) Business Days after receipt of notice of such breach (provided,
however, that; no cure period shall be required for a breach which by its nature cannot be cured), (d) by
Missouri -American, if at any time before Closing, Missouri -Amerman is not satisfied with the results of its
due diligence review of the System and the Acquired Assets, (e) by Seller if Seller is not in material breach of
any of its representations, warranties, covenants and agreements under this Agreement and there has been a
material breach of any representation, warranty, covenant or agreement contained in this Agreement on the
part of Missouri -American and Missouri -American has not cured such breach within five (5) Business Days
after receipt of notice of such breach (provided, however, that, no cure period shall be required fora breach
which by its nature cannot be cured), (f) by Seller or Missouri -American upon written notice to the other, if
any court of competent jurisdiction or other competent Governmental Entity shall have issued a statute, rule,
regulation, Orderdecree or injunction or taken any other action permanently restraining, enjoining or
ot3hetavise prohibiting the Contemplated Transactions, and such statute, rule, regulation, Order, decree or
injunction or other action shall have become final and non appealable, (g) by Missouri -American, if all
necessary regulatory approvals (including rate treatment, refunds and setting of rate base and all approvals
described in Section 5.1(g)) contemplated hereby or otherwise necessary to dose the Contemplated
Transactions have not been obtained within 270 days of the date hereof, of (h) by Missouri -American if any
Material Adverse Effect shall have occurred or, in the reasonable judgment of Missouri -American, shall be
reasonably likely to occur.
8.2 Effect of_teponination. The right of each Party to terminate this Agreement under Section
8.1 is in addition to any other tights such Party may have under this Agreement or otherwise, and the exercise
of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to
Section 8.1, all further obligations of the Parties under this Agreement will terminate, except that the
obligations set forth in Section 6.1(b) {"Confidentiality"), Section 6.2 ("Publicity; Announcements.", this
Section 8.2 ("Effect of Termination") or Article 9 ("General Provisions") will survive.; provided, however,
that if this Agreement is terminated by a Party because of the breach of the Agreement by another Party or
because one or more of the conditions to the terminating Patty's obligations under this Agreement is not
satisfied as a result of the other Party's failure to comply with its obligations under this Agreement, the
terminating Party's right to pursue all legal remedies will survive such termination unimpaired.
ARTICLE 9
General Provisions
9.1 Amendment and Modification. No amendment, rarefication or supplement of any
provision of this Agreement will be effective unless the same is in writing and is signed by the Patties.
4460648.6
9.2 Aeggisipta. Seikt may not assign or transfer any of its rights or obligations under this
Agreement to any other Person without the prior written Consent of Missouri -American. Missouri -American
may not assign its rights and obligations under this Agreement to any third party, without the prior written
Consent of Seller, but may assign its rights and obligations under this Agreement to any Related Person or
successor in interest without the Consent of Seller. Subject to this Section 9.2, all provisions of this
Agreement ate binding upon, inure to the benefit of and are enforceable by or against the Parties hereto and
their respective heirs, executors, administrators or other Legal representatives and permitted successors and
assigns.
9.3 Captions: Construction. Captions contained in this Agreement and any table of contents
preceding this Agreement have been inserted herein only as a matter of convenience and in no way define,
limit extend or describe the scope of this Agreement or the intent of any provision hereof. In the event of
an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any provisions of this Agreement
9.4 Counterparts; Facsimile. This Agreement may be executed by the Parties hereto on any
number of separate counterparts, and all such counterparts so executed constitute one agreement binding on
all the Parties hereto notwithstanding that all the Patties hereto are not signatories to the same counterpart.
For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by e-mail,
facsimile machine or telecopier is to be treated as an original document
9.5 Entire A,greement. This Agreement and the other Transaction Documents constitute the
entire agreement among the Parties hereto pertaining to the subject matter hereof and supersede all prior
agreements, letters of intent, understandings, negotiations and discussions of the Parties hereto, whether oral
or written, executed by the Parties pertaining to the subject matter hereof All of the Exhibits and Schedules
attached to this Agreement are deemed incorporated herein by reference.
9.6 Governing Law. The Agreement and the rights and obligations of the Parties hereunder
are to be governed by and construed and interpreted in accordance with the Laws of the State of Missouri
applicable to Contracts made and to be performed wholly within Missouri, without regard to choice or
conflict of laws rules.
.9.7 legal Fees. Costs. Except as provided herein, all legal, consulting and advisory fees and
other costs and expenses incurred in connection with this Agreement and the Contemplated Transactions are
to be paid by the Party incurring such costs and expenses.
9.8 hinneen. All notices, Consents, requests, demands and other communicsdons hereunder
are to be in writing and are deemed to have been duly given, made or delivered: (i) when delivered in person
or by e-mail, 04 three (3) Business Days after deposited in the United States mail, first does postage prepaid,
or (iii) in. the case of telegraph or overnight courier services, one (1) Burliness Day after delivery to the
telegraph company or overnight courier service with payment provided, in each case addressed as follows.
(a) if to Seller, (i) to City of Arnold, 2101 ]edf'co Blvd., Arnold, MO 63010, Attu; Mr. Bryan
Richison, City Administrator (briehison@arnoldorg) and (it) with a copy to Mr. Robert Sweeney, P.Q. Box
20, 503 Main Street, Hillsboro, Missouri 63050 (rks(robettswee neylaw.oam) or
(b) if to Missouri -American, (i) to Mlssouni-American Water Company, 727 Craig Road, St
Louis, Missouri 63141, Ann: Frank Kaufmann, President (frank kartmann@amwater_com), (rr) with a copy to
lissowri-American Water Company, 727 Craig Road, St Louis, Missouri 63141, Attn: Legal Department
(timothy.luft(giamwater.com) and (tit) with a copy to Bryan Cave LLP, 211 N. Broadway, Suite 3600, St.
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4464648.6
Louis, Missouri 63102, Attu: Ryan S. Davis (rsdavis@bryancave.com), or to such other address as any Party
hereto may designate by notice to the other Parties in accordance with the terms of this Section.
9.9 SeverabIity_ This Agreement shall be deemed severable; the invalidity or unenforceability
of any term or provision of this Agreement shall not affect the validity or enforceability of this Agreement or
of any other term hereof; which shall remain in full force and effect, for so long as the economic or legal
substance of the Contemplated Transactions is not affected in any manner materially adverse to any Patty:
9.10 Specific Performance and Injunctive Repel; Remedies. The Parties hereto recognize
that if any or all of them fail to perform, observe or discharge any of their respective obligations under this
Agreement, a remedy at law may not provide adequate relief to the other Parties hereto. Therefore, in
addition to any other remedy provided for in this Agreement or under applicable Law, any Party hereto may
demand specific performance of this Agreement, and such Party shall be entitled to temporary and
permanent injunctive relief, in a court of competent jurisdiction at any time when any of the other Parties
hereto fail to comply with any of the provisions of this Agreement applicable to such Party. To the extent
permitted by applicable Law, all Parties hereto hereby irrevocably waive any defense based on the adequacy of
a remedy at law which might be asserted as a bar to such Party's remedy of specific perfotmance or injunctive
relief Except as otherwise provided herein, all rights and remedies of the parties under this Agreement are
cumulative and without prejudice to any other rights or remedies under Law Nothing contained herein shall
be construed as limiting the Parties' rights to redress for fraud.
9.11 No Thad -Party Benefcj r. This Agreement is solely for the benefit of the Parties hereto
and their respective successors and permitted assigns (and those Persons entitled to recover tinder the
indemnity provisions hereof), and no other Person (other than those Persons entitled to recover under the
indemnity provisions hereof) has any right, title, priority or interest under this Agreement or the existence of
this Agreement.
9.12 Waiver of Compliance; Consents. Any failure of a Party to comply with any
obligation, covenant, agreement or condition herein may be waived by the other Party only by a written
instrument signed by the Party granting such waiver, bat such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement of condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits
Consent by or on behalf of any Party hereto, such Consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set fortis, in this Section 9.12,
9.13 Jurisdiction: Menu= Consent to Sala. of Process. Each of the Patties irrevocably and
unconditionally submits to the non-exclusive jeuisdiction of the Jefferson County Court in St Louis, Missouri
or, if such court will not accept jurisdiction, the Supreme Court of the State of Missouri or any court of
competent civil jurisdiction sitting in Jefferson County, Missouri in any action., suit or other Proceeding,
each of the Parties irrevocably and unconditionally waives and agrees not to assert by way of motion, as a
defense or otherwise any claims that it is not subject to the jurisdiction of the above comas, that such action
or suit is brought in an inconvenient forum or that the venue of such action, suit or other Proceeding is
improper. Each of the Parties also hereby agrees that any final and unappealable judgment against a Party in
connection with any action, suit or other Proceeding shall be conclusive and binding on such Patty and that
such award or judgment maybe enforced in any court of competent jurisrliction, either within or outside of
the United States Each Party irrevocably consents to service of process in the manner provided for the
giving of notices pursuant to Section 9.8. Nothing in this Section 9.13 shall affect the tight of any Party to
serve process in any other manner permitted under applicable Law.
20
446060.6
IN WITNESS WHEREOF, the Parries have execs this Asset Pause Agreement as of the
dstteEra aetfi above
Ifissoiarldinerican Water Gisolisay,aliihsouii The City of Areo$d, Missouri
oo rarion
Br
Attest;
IN WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as of the
date first set forth above:
Missouri -American Water Company, a Missouri The City ofArnold, Missouri
corporation
By:
Frank Katmnann, President
Attest
Attest
EXHIBIT I
System
See attached.
CIT` OF ARNOLD MISSOURI
SEWER SYSTEM EVALUATION
SURVEY (SSES STUDY
Phase 3 Technical Memorandum
--frivaig9q
Prepared For:
City of Arnold
Prepared By:
Fribis Engineering
HDR Engineering
TREKK Design Group
October 2013
HDR Project No. 185520
FiR
2 JXIST!NG WASTEWATER SYSTk--L
The City of Arnold is bordered by the Meramec River on the north and east. The Meramec River
continues south until it converges with the Mississippi River, which is located at the southeast corner of
the City. The north portion of the City drains to the east along the Muddy Creek tributary to the Meramec
River. The south portion of the City drains to the east along the Pomme Creek tributary to the Meramec
River. The City of Arnold covers approximately 7,800 acres.
The City owns and operates their collection system that collects wastewater film approximately 9,000
customers, with the majority being residential customers. There are approximately 350 non-residential
(commercial and industrial) sewer customers. Most of the City is served by approximately 110 miles of
gravity sewer system. However, there are a total of 7 active pump stations within the system and their
respective force mains. The majority of these pump stations are located within subdivisions. The City
wastewater is conveyed to one of three main interceptors that lead to one of two tunnel pullets to facilities
(LMTF) owned and operated by MSD. The City owns no wastewater treatment facilities. Figure 2-1
shows the City's sewer system according to the current CGS mapping and the two tunnel outlets to the
MSD facilities.
The City consists of three watershed districts: Muddy Creek, Little Muddy Creek, and Pomme Creek.
The sewers of the three watersheds drain to their respective interceptor that conveys the wastewater to a
tunnel outlet that takes the flow to MSD's LMTF. The three interceptors are called the Muddy Creek,
Little Muddy Creek, and Pomme Creek interceptors. Figure 2-2 depicts the delineation of the three
watersheds and their corresponding interceptors.
The three watersheds within the City were divided into 26 basins. These basins define areas within the
collection system where wastewater may be collected and conveyed downhill by gravity. Seventeen of
these basins (3-13, 15-16, 22-25), in the Muddy Creek and Little Muddy Creek Watersheds, are located in
the northern portion of the City and convey the flow east within the Muddy Creek and Little Muddy
Creek interceptors toward the deep Muddy Creek Tunnel that goes under the Meramec River to the MSD
system. The other nine basins (0.2, 14,17-21), in the Pomme Creek Watershed, are located in the
southern portion of the City and convey the flow east within the Poenme Creek interceptor toward the
deep Pomme Creek Tunnel that goes under the Meramec River to the MSD system. Figure 2-3
illustrates the 26 basins divided within the City. See Figure 4-1 for subbasin delineations.
October 2013 Arnold, MO SSES Phase 3 Technical Memorandum
105520
2-1
nor
IL Lark a' . •-I
• lamacearep'`-_.
inaleey P4•
EXHIBIT 2
Definitions
"Acquired Assets" means all right, title, and interest in and to all of the assets which are
owned or held by Seller as of the Effective Time that constitute the System or that are used in the
operation thereof, including, with respect to the System, all of its (a) Real Property now used and
required in the ongoing operation of the System, (b) Tangible Personal Property, (c) intellectual
property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect
thereto, and rights thereunder, remedies against past, present, and future interests therein under the
Laws of all jurisdictions, (d) leases, subleases, easements, rights of way, and tights thereunder, (e) all
tights of Seller in and to the Assumed Contracts, (i) all rights of Seller in and to any indentures,
mortgages, instruments, Encumbrances, or guaranties secured for the operation of the System, (g)
accounts, notes, and other receivables arising after the Effective Time, (h) claims, deposits,
prepayments, refunds, causes of action, rights of recovery, rights of set-off, and rights of recoupment
(including any such item relating to the payment of Taxes), 0 franchises, approvals, Permits, pending
application for Permits and Permit renewals, exemptions from any Permits, licenses, Orders,
registrations, certificates, variances, and similar rights obtained from governments and governmental
agencies in each case to the extent assignable or transferable to eouu American, 0 books, data,
records, ledgers, files, documents, correspondence, lists, plats, architectural plans, drawings,
specifications, creative materials, studies, reports, and other printed or written materials related to
Seller's construction, maintenance, and operation of the System, and (k) all of the intangible tights
and property, if any, of Seller utilized in the operation of the System, provided that Acquired Assets
shall not indude any Excluded Assets.
"Acquisition Proposer" means any offer or proposal for the acquisition of Seller, the Acquired Assets
or any portion thereof whether by way of merger, consolidation or statutory share exchange or the
acquisition of shares of capital stock, the acquisition of assets or similar transaction.
"Affiliate" means, with respect to any Person, any Person which, directly or indirectly controls, is
controlled by, or is under common control with, such Person.
"Allosatien" means a reasonable and supportable allocation of the Purchase Price and the Assumed
Liabilities among the Acquired Assets in accordance with Code section 1060 and the Treasury regulations
thereunder (and any similar provisions of state or local Law, as appropriate).
"Assignment and Assumption Agreement" means an Assignment and Assumption Agreement for
the Assumed Liabilities in form and substance reasonably acceptable to Missouri -American.
"Assume. Contracts" means the Contracts listed on $alathitl.
"Assumed Liabilities" means only the Liabilities arising out of, resulting from or relating to the
Assumed Contracts, but only to the extent such Liabilities (A) are to be performed after the Effective Time,
(13) do not arise as a consequence of any breach or default prior to the Effective Time, and (C) are
accompanied by a correlated duty of performance or payment on the part of the other party(s) thereto.
"Audited Financial Statements" means the audited balance sheets of Seller as of August 31, 2012,
2013 and 2414 and the related audited statements of income and cash flows for the twelve (12) mouth period
ended August 31, 2012, 2013 and 2014, respectively. .
gill of Salc" means a bill of sale for all of the Acquired Assets that are Tangible Personal Property in
form and substance reasonably acceptable to Missouri -American,
"Business" means the business of Seller as the same is conducted by Seller as of the date hereof and
as the same shall be conducted by Seller as of immediately per to the Closing.
" $usiriess Day(s)" means any day other than (i) Saturday or Sunday, or (it) any other day on which
governmental offices in the State of Missouri are permitted or required to be dosed.
"Cleanup" means investigation, cleanup, removal, containment or other remediation or response
actions.
"S," means die closing of the Contemplated Transactions.
"Closingl)ate" means the date on which the Closing actually occuirs.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations and other
guidance promulgated thereunder.
"CanfigradaLinfautgam" means (1) information not available to tine general public concerning the
System and financial affairs with respect to a Party hereto or its Affiliates, and (is') analyses, compilations,
forecasts, studies and other documents prepared on the basis of such information by the Parties or their
agents, representatives, any Related Person, employees or consultants.
"Orient" means any approval, consent, ratification, waiver or other authorization.
"Contemplated Transactions" means the transactions contemplated by this
Transaction Documents.Agreement and the
"Cnntti" means any agreement, contract, obligation, legally binding commitment or undertaking
(whether written or oral and whether express or implied).
"Damages" means any and all claims, losses and other liabilities, plus reasonable attorneys' fees and
expenses, including court costs and expert witness fees and costs, incurred in connection with such claims,
losses and other liabilities and/or enforcement of this Agreement
"DNR" means the Missouri Department of Natural Resources.
"Ef feet Time" means 12:01 a.m. on the Closing Date.
"Encumbrance" means any charge, claim, community property inteixst, condition, mot,
equitable interest, encumbrance, lien, mortgage, option, pledge, security interest; right of first refusal, right of
way, servitude or restriction of any kind, including any restriction on use, transfer, receipt of income or
exercise of any other attribute of ownership, or any repayment obligation under any grant.
"Envirnmeeer means soil, land surface or subsurface strata, surface waters (inelnding navigable
waters, ocean waters, streams, ponds, drainage basins and wetlands), groundwater, drinking water supply;
stream sediments, ambient air (=cluding indoor air), plant and animal life and any other environmental
medium or natural resource.
"Environmental. Heath and Safety Liabilities" means any cost, damages, expense, liability, obligation
or other responsibility arising from or under Environmental Law or Occupational Safety and Health Law and
consisting of or relating to (a) any environmental, health or safety matters or conditions (including on -site or
off -site contamination, occupational safety and health and regulation of chemical substances or products), (fs)
fines, penalties, judgments, awards, settlements, legal or administrative Proceedings, damages, losses, claims,
demands and response, investigative, remedial or inspection costs and expenses arising under Environmental
Law or Occupational Safety and Health Law, (c) financial responsibility under Environmental Law or
Occupational Safety and Health Law for cleanup costs or corrective action, including any Cleanup required by
applicable Environmental Law or Occupational Safety and Health Law (whether or not such Cleanup has
been required or requested by any Governmental Authority or any other Person) and for any natural resource
damages, or (d) any other compliance, corrective, investigative or remedial measures required under
Environmental Law or Occupational Safety and Health Law. The terms "removal," "remedial," and
"response action," include the types of activities covered by the United States Comprehensive Environmental
Response, Compensation and liability Act, 42 U.S.C. § 9601 et seq., as amended, and the United States
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., es amended.
"Environmental Law" means any Law relating to pollution or protection of human health, safety, the
environment, natural resources or Law relating to releases or threatened releases of Hazardous Materials into
the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater,
land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution; use,
treatment, storage, release, transport or handling of Hazardous Materials.
"Excluded Assets" means (a) all cash, cash equivalents and short-term investments of Seller,
including all bank accounts, demand accounts, certificates of deposit, time deposits, marketable securities,
negotiable instruments and the proceeds of accounts receivable paid prior to the Closing Date, other than
deposits and funds included in the Acquired Assets, (b) all accounts receivable of Seller accrued and payable
prior to the Effective Time, (c) all intercompany accounts receivable of Seller and notes for those accounts
receivable, (d) all Contracts to which the Seller is a party (other than the Assumed Contracts), including the
Contracts listed on ,schedule 3.8 (other than the Assumed Contracts listed thereon), (e) all equity interests
owned or held by Seller, (f) all insurance policies of Seller and rights thereunder, (g) all causes of action,
judgments, claims, reimbursements and demands of whatever nature (including rights under and pursuant to
all warranties, representations and guarantees made by suppliers of products, materials or equipment, or
components thereof) in favor of Seller to the extent related to any Excluded Asset or Excluded Liability, (h)
all corporate minute books and stock Records of Seller and personnel Records and other Records that Seller
is required by Law to retain in its possession, n all rights of Seiler under this Agreement and the Transaction
Documents and ( all rights, properties and assets set forth on
"Excluded Liabilities" means any and all Liabilities of Seller, whether or not incurred in connection
with the operation of the System, other than the Assumed Liabilities.
"Fill Statements" means the Audited Financial Statements and the Unaudited Financial
Statements.
"Franchise Agreement" means that certain Franchise Agreement in form and substance reasonably
acceptable to Missouri -American.
"Governmental Autiaorityt"}es)" means any (a) nation, state, county, city, village, district or other
jurisdiction of any nature, (b) federal, state, local, municipal, foreign or other government, (c) governmental
or quasi -governmental authority of any nature (mcluding any governmental agency, branch, department,
official or entity and any court or other tribunal), (d) multi -national organization or body or (e) body
exercising, or entitled to exercise, any administrative, executive, jurt ris1, legislative, police, regulatory or taxing
authority or power of any nature. For purposes of this Agreement, Seller shall not be deemed included in the
definition of a "Governmental Authority."
"Hazardous Activity" means the distribution, generation, handling importing, management,
manufacturing, processing, production, refinement; Release, storage, transfer, transportation, treatment or use
(including any withdrawal or other use of groundwater) of Hazardous Materials in, on, under, about or from
the System or any part- thereof into the Environment, and any other act, system, operation or thing that
increases the danger or risk of danger, or poses an unreasonable risk of harm to persons or property on or off
the System, or that may affect the value of time System or the Business.
"Razaedous Materials" means any waste or other substance that is listed, defined, designated or
classified as, or otherwise determined to be, hazardous, radioactive or toxic or a pollutant or a contaminant
under or pursuant to any Environmental Law, including any adm1xture or solution thereof, and specifically
including petroleum and all derivatives thereof or synthetic substitutes therefor and asbestos or asbestos -
containing materials.
`" means all buildings, structures, fixtures, building systems and equipment, and all
components thereof; including the roof, foundation, load -bearing walls, and other structural elements thereof,
heating, ventilation, air conditioning, mechanical, electrical, plumbing, and other building systems,
environmental control, remediation, and abatement systems, sewer, storm, and waste water systems, irrigation
and other water distribution systems, parking facilities, fire protections, security, and surveillance systems, and
telecommunication; computer, wiring, and cable installations, included in the Real Property.
"Indemnified Persons" means Missouri -American and Missouti-Amesican's Affiliates and the past;
present and future officers, directors, shareholders, partners, employees, agents, attorneys, representatives,
successors and assigns of each of them in their capacities as such.
latiagibleibiligammite means the assignments of ill of the Acquired Assets which are intangible
personal property in form and substance reasonably acceptable to Missouri -American.
"Linninkdge" means (s) the actual knowledge of a particular fast by any of the Persons listed on
Schedule B (each, a "Knowledge Party"), and (ii) knowledge that would have been acquired by any
Knowledge Party acting reasonably and diligently in the performance of such person's role with and duties to
Seller. The words "know," "knowing" and "known" shall be construed accordingly.
" Iaw(s)" means any law, rule, regulation or ordinance of any federal, foreign, state or local
Governmental Authority or other provisions having the force or effect of law, including all judicial or
administrative Orders and determinations, and all common law.
"ems&" means that certain real property lease in form and substance reasonably acceptable to
Missouri -American.
"Liability" or "Liabilities" means any liability, indebtedness or obligation of any kind, character or
description, whether known or unknown, absolute or contingent; accrued or rmacc rued, disputed or
undisputed, liquidated or unliquidated, secured or unscented, joint or several, due or to become due, vested
or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be
accrued on the financial statements of a Person.
Material Adverse Eta means a material adverse effect on (a) the business, assets, Liabilities
(contingent or otherwise), operations or condition (financial or otherwise) of the System, the limos and the
Acquired Assets, taken as a whole; provided, however, that "Material Adverse Effect" shall not include any
changes resulting from general business or economic conditions, including such conditions related to the
industry in which the System is operated, which do not specifically relate to the System and which are not
disproportionately adverse to the System than to other businesses being operated in the industries in which
the System operates, or (b) the ability of Seller to consummate the Contemplated T,tansactioas.
"MoPSC" means the Missouri Public Service Commission.
"Occupational Safety end Health Law" means any Law designed to prwide safe and healthful
working conditions and to reduce occupational safety and health hazards, ;sad any prate, whether
governmental or private (mcluding those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions.
"axle means any award, decision, injunction, judgment, order, ruling, subpoena or verdict entered,
issued, made or rendered by any court, administrative agency or other Governmental Authority or by any
arbitrator.
"Ordinary Course of Business" means, with respect to the System and the Business, only the
ordinary course of commercial operations customarily engaged in by the System and the Business consistent
with past practices, and specifically does not include (a) activity ® involving the purchase or sale of the
System or the Business or any product line or business unit thereof, or (a) that requires approval by governing
persons of equity holders of Seller or any of its Affiliates, as applicable, or (b) the incurrence of any Liability
for any tort or any breach or violation of or default under any Contract or Law.
"per" means any approval, Consent, license, permit, waiver or other authorization issued, granted,
given or otherwise made available by or under the authority of any Governmental Authority or pursuant to
any Law.
"" means any individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, cooperative, estate, trust, association,
organization, labor union or other entity or Governmental Authority.
"Proceeding" means any action, arbitration, audit, hearing,investigation, litigation or suit (whether
civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or
before, or otherwise involving, any Governmental Authority or arbitrator.
"Purchase Price" means 'Thirteen Million Two Hundred Thousand Dollars ($13,200,000).
`Meal Property" means those parcels of real property and those easements or any right-of-way used
in the operation of the System, together with all fixtures, fittings, buildings, structures and other
Improvements erected therein or thereon.
"R" means information that is inscribed on a tangible medium or that is stored in an electronic
or other medium and is retrievable in perceivable fora;.
`Wilted Person" means: (a) with respect to a particular individual, (i) each other member of such
individual's Family, (t) any Person that is directly or indirectly controlled by such individual or one or more
members of such individual's rFamily, [tit) any Person in which suchindividual or members of suds
individual's Family hold (individually or in the aggregate) a Material Interest, and (iv) any Person with respect
to which such individual or one or more members of such individual's Family serves as a director, officer,
partner, executor or trustee (or in a similar capacity) and (b) with respect to a specified Person other than an
individual, (0 any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly
or indirectly under common control with such specified Person, 40 any Person that holds a Material Interest
in such specified Person, (iii) each Person that serves as a director, officer, partner, executor or trustee of such
specified Person (or in a similar capacity), (tv) any Person in which such specified Person holds a Material
Interest, (v) any Person with respect to which such specified Person serves as a general partner or a trustee
(or in a similar capacity) and (vi) any Related Person of any individual described in clause (ii) or R. For
purposes of this definition, (x) the "Family" of an individual includes (A) the individual, (B) the individual's
spouse, (C) any other natural person who is related to the individual or the individual's spouse within the
second degree, and (I)) any other natural person who resides with such individual: and (y) "Material Interest"
means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of
1934) of voting securities or other voting interests representing at least five percent (5%) of the outstencliug
equity securities or equity interests in a Person.
�,}�,,� ��{,,,� j�,,��,..,,� dumping
" ease" means any spilling, � emitting �.""ng escaping, �.ing► dumping
or other releasing1�i� into the Environment, whether intentional or unintentional.
"pTengible Personal ronetty" means all machinery, equipment, tools, furniture, office equipment,
computer hardware, supplies (including chemicals and spare parts), materials, vehicles and other items of
tangible personal property of every kind owned or leased by Seller (wherever located and whether or not
carried on Seller 'a books), together with any express or implied warranty by the manufacturers or lessors of
any item or component part thereof, and all maintenance records and other documents relating thereto.
"" or `Taxes" means all taxes, charges, withholdings, fees, duties, levies, or other like assessments
including, without limitation, income, gross receipts, ad valorem, value added, excise, property, sales,
employment, withholding, social security, Pension Benefit Guaranty Corporation premium, environmental
(under Section 59A of the Code) occupation, use, service, service use, license, payroll, franchise, transfer and
recording taxes, fees and charges, windfall profits, severance, customs, import, export, employment or similar
teen, charges, fees, levies or other assessments, imposed by any Governmental Authority, whether computed
on a separate, consolidated, unitary, combined or any other basis, and shall include any interest, fines,
penalties, assessments, or additions to tax resulting from, attributable to, or incurred in connection with any
such Tax or any contest or dispute thereof, and including any Liability for the Taxes of another Person under
Treasury Regulation section 1.1502-6 (or any similar provisions of state, local, or foreign Lew), as transferee
or successor, by Contract or otherwise.
"Tax Realm" or "Inn_$ " means any return, declaration, report, claim for refund, or
information return or statement relating to, or required to be filed in connection with any Taxes, including
any schedule or attachment thereto and including any amendment thereof.
"711r11Person" means a claimant other than an indemnified person hereunder.
"Third Person Claim" means a clay alleged by a Third Person.
"Transaction Documgta" means this Agreement, the Bill of Sale, the Intangible Assignments, the
Assignment and Assumption Agreement, the Franchise Agreement the Lease and all other documents,
certificates, assignments and agreements executed and/or delivered in connection with this Agreement in
order to consummate the Contemplated Transactions, as the same may be amended, restated, modified or
otherwise replaced from time to time.
"Unaudited Financial Statement$" means the unaudited balance sheet of Seller as of November 30,
2014 and the related compiled consolidated statements of income and cash flews for the three month period
then ended.
Rules of Construction
For purposes of tins Agreement and the other documents executed in connection herewith, the
following rules of construction shall apply, unless specifically indicated to the contrary: (t) wherever from the
context it appears appropriate, each term stated in either the singular or plural shall include the sing end
the plural, and pronouns stated in the masculine, feminine or nester gender shall include the masculine, the
feminine and the neuter; (d) the term "or" is not exclusive; (m� the term ch * ' (or any form thereof)
shall not be limiting or exclusive; (iv) the terms "hereof;" "herein" and "herewith" and wards of similar
import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including the
Schedules and Exhibits hereto) and not to any particular provision of this Agent; (v) all references to
statutes and related regulations shell include any amendments of same and any successor statutes and
regulations as well as all rules and regulations promulgated thereunder, unless the context otherwise requires;
(vi) all references in this Agreement or in the Schedules to this Agreement to sections, schedules, exhibits and
attachments shall refer to the corresponding sections, schedules, exhibits and attachments of or to this
Agreement:, and (vim) all references to any instruments or agreements, including references to any of the
documents executed in connection herewith, shall include any and all modifications or amendments thereto
and any and all extensions or renewals thereof.
EXHIBIT 3
Assumed Contracts
Sewerage System Agreement dated as of December 11, 2008 by and between The Metropolitan St.
Louis Sewet District and the City of Arnold, Missouri
Rock Creek Agreement
4467110
Schedules tp the Asset Purchase Agreement dated as of December 113, 2014 by and betweeq
MiMond-American Water Company and The Ciptof Arnoldli Missou
ak 2.2 (Payees other than Seller)
None.
Schedule 2.5(a)(tr) (Requ re4 onsents)
MoPSC
The Metropolitan St. Louis Sewer District
Rock Creek Public Sewer District
Schedule 3.4 (Real Property; Easements)
($)
[As promrptb a''practicnbk following the date herxoof (and in any event prior to Closing), Seller to update this Sthedrde
3.4(a) to provide a cmooTete and as wrote 1ir1in g of all real popery used in the operation of the System as of December
18, 2014.]
(b)(i)
[As pro , arpracticable following the date hereof (and in any strut prior to Clothe, Seller to *date this Schedule
3.4(b)(ij to provide a Awe, coast and cookie list of all easements relating to the Real Property or the Acquired
Arsetr as of December 18, 2014.]
(b)(i)
[Aspmmpty aspractieabk following the date bergf (and in any event prior to Closine, Seller to update this Schedsrk
3.4(b)(1) to provide a train, wet and cvmplete list of ally, bts of way relating to the RealProperlly or the Acquired
Assnets as of December 18, 2014.7
(c)
(Asproaenptl3+ as practicable following the date hereof (and ire any event prior to Closing), Seller to update this Schheda/e
3.4(c) to provide a list of any Improvements which encroach an any land that it not included in the Real Property or
any ammeter affecting such Real Property, or which violate any building lines or set -back lines or any encroaclmaeantJr
onto the Real Proper*, or any portion thereof, which would interfao with the we or'acrupany earth Real Proper* or
the continued operation f the System as aurranty amduiate4 in each cam as of December 18, 20141
(e)
None.
(Personal Property)
(a)
(Asprompty aspractiabk following the date hereof (and in any event prior to Closigh Sellerto update this Schedvk
3.5(a) to provide a complete and aaxrate Liter of allAc.gerrnrdAssets which are persanal property as of December
18, 2014.]
(b)
None_
Sciaeduie 3 r No Undisclosed Lr^Jlditic
None.
.firthadu 'n', tivw-04 4i;1t .. qS"i 't-nb"'M 3014 t
%1jsOuriL can Watt' Cioti R;.h.s 01;ity.om _ r[iw40,, k0.1 -x,u i
Schedule .3.8 (Contracts)
(a)
Contracts listed on Exhibit 3
Other "course of business" documents that are not specifically or exclusively used by the System
(eg., a grass cutting agreement) and which are not Assumed Contracts
(b)
None.
Schedule 3.9 (Envitomneutal Matters)
(a)
[Asprwnrptly as practicabk following the date hereof (and in any event prior to Closing), Selkr to rock* this Schedxk
3.9(a) to provide a fist of all mcmptions to the fallowing npresentatien, as of December 18, 2014: Seller it and at all
&vs has been in fvdl compliance with and has not been and is not in violation ear labk renderamy applicable
Environmental Lout'
(d
[Asprnmptly aspracticable following the date hereof (and in any event prior to Closing), Seller to update this Schedule
3.9(d) to pre vi k a fist of Haaardoxs Materiafr present on or in the Envirownent at the Real Properly or at any
geologica' er hyd ologica<fy ar ioining propery or amy o1Serpart of the Real Property or inch ad a nger or
incosperakd into any stntdxrnr therein or tbenon, as encember 18, 2014
(e)
[Aspnmptly as practicabkfolkwing the data benof (and in any event prior to Clovingj, Seller to update this Schedule
3.9(e) to preside a list of the following whash exzrtat the ).teris or on the Real Propery: (1) rmdergmund storage
tasks; (2) asbestos -containing material in ag form (3) materials or equipment containingpotxhkrivakd bipbenyk
(4)groundwater menitering wells; or (5) landfills, surface impouni wente, or disposal areas, in each case as of
December 18, ,2014.]
(±)
(.Aspromp% as practicable framing the date hereof (andin any event prier ta Ciodn), Seller to update this Schedule
3.9) to provide a Jilt of obligations of Seller oritsAffiliates toprank/ e financial asrkmn c in consideration of the
System eenderEntaranmentalLaw, as oDeeasrber 18, 2014.]
Schedule 310 ietmits)
(a)
[As ptly as pnrdi able Plowing the date hereof (and in any event priorto Closing), Sailer to update this Schedule
3.10(a) to list its state permit as in effect III of December 18, 2014.]
(b) 4spmmptFy as prmaticabkfollowieg the date hereof (andin any event prior to Ching), Seiler to update this
Schedule 3.10(b) to lest any exception to the filming representation as of Denmber 18, 2014: The permit listed in
(a) conatitrtes all permits necassaryfor the continuing operation 0e S,yrtan and is mad and subsisting audit' ferll
fora andOct]
Schedules to the Asset PuraA@e Agreement dated as of December 18, 2014 by and between
MiasouriLAmerican Water Company and The City of Arnold, Missouri
Schedule 3.11 (Insurance)
[A.rpsampt v aspmsticabk following the date hereof (and in any event pier to Closing), Seller to update this Schedule
3.11 to provide a list of all insurrurre policies Seller maintains as of December 18, 2014.]
Schedule 3.13 (Litigation and Proceedings)
Ins promptly er practreabk following the date hereof (and in my event prior to Closing), Seller to iodate this Schedule
3.13 to pranidr a list of all Proceedings, pending or threekned, anticipated or cgrrtemplatea, against Seller or involving
the operation of the System, any► of the Acgxbad Assets, or my of Se/kr's members, shareholders, directors, emu,
writs or othergoverxingpersore, equity holders or personnel in their capaciy as arch, whuh could direy affect any of
the Accord Asset: or the System, as of December 18, 2014,]
Schedule 3.14 (Compliance with Laws)
None.
module 3.15 ()Financial Statements)
[As prottotfr ar practicable following the date hereof (and ix my event prior to Closing), Seller to update this Schedule
3.15 to attach (i) the audited balance sheets of Seller as ofAugust 31, 2012, 2013 and 2014 and the related
waked statements ofimme and cerh flows far the :salve (12) month period ended August 31, 2012, 2013 and
2014, re.pectivey, and (is) the unathted balance sheet of Seller as eNovember 30, 20014 and the 'elated curnpikd
consolidated statements of income and cash flaws jbrthe three month period then ended]
Schedule 116 (Transactions with Related Parties)
None.
Schedule 3.17 (Customer .advances)
Pis pram* as practicable fallowing the date beer of (and in any event prior to Closing), Seller to Iodate this Schedvk
3.17 to provide a complete and aresnate fart as of December 18, 2014, of () all unexpired Extension Deposit
Agreements (or similar agreements) to which Seller is a pasty and which anntaie unexpired obligations of Seller to
proe defor the parent ofperiodic refunds to parties making advances -for the cvssauctivn offacitities firmer service,
(iI) all advances arprtpaymerts made by any customer or other Person to Seller with respect to the System or the sire
provided thereby and (ii) all other amopayeable (whether as a r.izvbnrsemsat or in the form ofa cat) by Seller
to any cfaamer or other Person with respect to the Sytem or the soma padded tbereby+.J
Schedule 3.18 (ccounts Receivable)
[As prornptb, as practicabk follomieg the date hereof (and in any event prior to Closing), Seller to update ibis Schee&
3.18 to include a lirt of all the accounts receivable (Seller with respect to the Sjskne and an Ong schedule related
thereto, as of December 18, 2014.]
Schedule 3.19 (Brokers. Finders)
None.
gto _p rivt; to the Asset PnrchaseAgmeniena
Missonti-American Wits. Cn*! pan .bzd lrgt . Cif ar ArglActi, 7t71co-r. r:k.
Schedule 320 (5inployvs),
(a)
[el s promptly as prachiabk following the date hereof (and in any event prior to Closing), Seller to update this Schedwle
3.20(a) to provide a list of to fnldowing information for each employee f the Seller, ischiding each such employee on
kave of absence or!veestatas: name, job title, aemnt compensation paid orpayabte, any change in compensation
sins the date of the most wentAudited Financial Statement, and hire date, in each case us of December 18, 2014.]
(b)
None.
Schedule 5.10) (Certain Ateements)
The Mettopolitan St. Louis Sewer District
Rock Creek Public Sewer District
Schedule 7.2 (indemnification *ad Payment of Manages by Seller)
Pis promptly at prae&ablefollowing the date hereof (and in any event prior to Closing), Missouri Americen to
*dare this Schedule 7.2 to provide a dirt easy matters unan rod ding its due diligenceft r rich Seller 'boned
provide indera fraation coverage.]
$thedule A (5xcluded Assets)
None.
B owl
Mayor Ron Counts; City Council members: Jason Fulbright, Nancy C>isIex, Mary Elizabeth
Coleman, Brian McArthur, Paul Freese, Phil Amato, Butch Cooley and Gary Plunk City Treasurer
Dan Kroupa; City Administrator Bryan Richison; Finance Director Deborah Lewis; Public Works
Director Ed Blattner, Sewer Superintendent Mark Migneco; City Attorney Robert Sweeney.
S.0 1DOCS`a462436.4
4
ADDENDUM TO SEWERAGE SYSTEM AGREEMENT
THIS ADDENDUM TO SEWERAGE SYSTEM AGREEMENT
("Addendum"). dated as of the lkday of , 2015 (regardless of
when signed by the parties hereto), is executed by and between The Metropolitan
St. Louis Sewer District (herein referred to as "MSD" or the "District"), a body
corporate and politic duly organized and existing under the laws of the State of
Missouri (herein referred to as the "State"), Missouri -American Water Company,
a Missouri corporation (herein referred to as "Missouri- American"), and the City
of Arnold, Missouri, a Third Class City of the State (herein referred to as the
"City of Arnold" or simply, the "City").
WHEREAS, in 1982, City of Arnold and MSD entered into an agreement
for MSD to treat the City's sewerage;
WHEREAS, in 2008, the City of Arnold and MSD entered into the
Sewerage System Agreement (the "Agreement"), replacing the original 1982
agreement, and the Sewerage System Agreement remains in full force and effect;
WHEREAS, Missouri -American is purchasing the sewer system owned
and operated by the City of Arnold, and is willing to assume City's obligations to
MSD under the Agreement;
WHEREAS, Missouri -American and City have requested that MSD
consent to the transfer of the Agreement, and MSD is willing to consent to the
transfer of the Agreement and assumption by Missouri -American of City's
obligations under the Aggreement., based upon certain agreements and conditions,
all as more fully specified below; and
WHEREAS, Missouri -American, City of Arnold and MSD have agreed to
execute this Addendum to Sewerage System Agreement to govern their
relationship after the transfer of the sewerage system from the City to Missouri -
American.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration. the receipt and sufficiency of
which is hereby acknowledged, it is mutually agreed as follows:
Y, DEFINITION OF TERMS
All terms used herein shall have the same meaning as defined in the
Agreement, except that upon execution of this Addendum, all references in the
Agreement to the "City of Arnold", .'Arnold" and the "Municipality" shall refer to
Missouri -American. References in this Addendum to the "City." the "City of
Arnold" or "Arnold" shall refer to the City of Arnold.
IL GENERAL PROVISIONS
A. Assignment of Rights and Assumption of Obligations.
Upon execution of this Addendum and the effective date of Missouri -
American's purchase of the City's sewer system, the City. of Arnold assigns and
transfers over to Missouri -American all of the City's right, title, and interest under
the Agreement, and Missouri -American assumes all of the rights, duties and
obligations of the City of Arnold under the Agrceat ent.. except as otl, wise
specified. herein. Missouri -American specifically agrees that it: is responsible for
all payments to MSD under the terms of the Agreement. The Agreement shall
remain in full force and effect as between Missouri -American and MSD.
2
No provision of the Agreement or this Addendum shall be interpreted by
reference to any provision of the Asset Purchase Agreement or any other
agreement between Missouri -American and the City to which the District is not a
party.
B. Retention of Obligation to Enact and Enforce Ordinances.
The City of Arnold agrees that it will enact and enforce all applicable
ordinances relating to the use of the sewer system by residents and businesses
within the City under the Agreement. The City agrees specifically that after the
sale of the sewer system it will continue to comply with its ordinance obligations
as specified under Sections II(B), II(D) (first paragraph) and VIII of the
Agreement.
C. Consent to Transfer.
The District consents to the assignment of the City's interest and
assumption of the City's obligations under the Agreement to and by Missouri -
American. as specifically provided herein. MSD agrees that it will accept flow to
the Project Facility from Missouri -American pursuant to the Agreement.
Missouri -American shall not assign, convey or otherwise transfer any of its
interests or obligations under the Agreement without the prior written consent of
the District, wilicit consent shall not be unreasonably withheld.
D. Access to Property,
To the extent the City of Arnold retains an interest i» the real property, the
City agrees that authorized personnel of the District may make such entry onto the
lands of the City as may be necessary to permit necessary measuring and
3
sampling of wastes and for all other necessary purposes in cona,c.tion with the
Agreement and the operation, repair and maintenance of the Project Facility, The
District agrees to hold the City harmless from any and all claims, including
reasonable attorneys' fees and costs, for property damage or bodily injury
resulting from the action of the District's employees or agents occurring on the
property of the City and while acting in the course of District employment.
E. Further Assurances.
The parties to this Addendum agree that they shall perform all such acts
(including, without limitation, executing and delivering instruments and
documents) as reasonably may be necessary to fully effectuate the intent and each
and all of the purposes of the transactions contemplated in the Agreement and this
Addendum.
III. SECTION HEADINGS
Any section and paragraph headings are inserted for convenience only and
will not affect the construction or interpretation of this Addendum.
IV. EXECUTION OF COUNTERPARTS
This Addendum may be simultaneously executed in several counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts together will constitute but one and the. same Addendum.
V. NOTICE
Any notice hereunder to Missouri -American shall be deemed to be
properly served if delivered or mailed to Missouri -An urican as follows:
4
Missouri -American Water Company
727 Craig Road
Creve Coeur. MO 63141
Attention: Legal Department
IN WITNESS WHEREOF, the parties hereto have set their hands on the day
and year first above written.
THE CITY OF ARNOLD,
STATE OF MISSOURI
ATTEST Y:
STATE OF MISSOURI
) SS
COUNTY OF JEFFERSON
On this //X of J 4 , in. the year 2 15 before me, a Notary Public in
and for said state, personally appeared, the Mayor of the City of
Arnold, Missouri, known to me to be the person who executed the within Contract
on behalf of the City of Arnold, Missouri, and acknowledged to me that he/she
executed the se for the purpose therein stated.
In Testimo . �' f, I have hereunto set my hand and affixed my official seal
•y�tY ROCIERTiCs i r
Per may t. 201?
St Louis /
Candeake113540038
5
MISSOURI AMERICAN WATER CO., INC.
By:
.4-gdv a
2�3�Jr'7cJ3�
ATTEST BY:
By:
" r;
Seete44a
STATE OF MISSOURI
) Sa.
`'p,At,_ OF !.. Lef,,,;6 )
On this j of 1 in the year '1015 before , a Notary Public in
and for said state. personally appeared rruZei,INAAA the Fir_ec: a - of
Missouri American Water Co.. Inc., known to me to be the person who executed
the within Contract on behalf of Missouri American Water Co., Inc., and
acknowledged to me that he/she executed the same for the purpose therein stated.
In Testimony Whereof. I have hereunto set my hand and affixed my official seal..
Notary Public
MCI A. OLSEN
Notary Public- Notary Sad
STATE OF MISSOURI
EL Charles County
My Commission Expires: March 20, 2017
Commission #13519210
6
METROPOLITAN ST. LOUIS SEWER DISTRICT
By:
4 re— ids-
ATTEST BY:
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this jieday of I ; _ I - , in the year 2015, before me, a Notary Public
in and for said state, personally appeared Brian Hoelscher, the Executive Director
of The Metropolitan St. Louis Sewer District, known to me to be the person who
executed the within Contract on behalf The Metropolitan St. Louis Sewer District,
and acknowledged to me that he executed the same for the purposes therein
stated.
In Testimony whereof, I have hereunto set my hand and affixed my official seal.
L.AU RA A. DI i
Seal
of Mssotet
CommissionedforStLadstfts*
My COMMISSiaa Wes: May 27, 2019
Commission Number:15 1200
7