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HomeMy WebLinkAboutAsset Purchase Agreement - Carriage Hills Sewer Extension - St. Joe County Regional Water & Sewer District1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS October 27, 2020 Ms. Jessica Clark, County Engineer St. Joseph County Regional Sewer & Water District j clark(k si cindiana. com RE: Asset Purchase Agreement Dear Ms. Clark: PHoNE 574/235-9251 FAx 574/235-9171 The Board of Public Works, at its meeting held on October 27, 2020, approved the above referenced agreement for the sanitary sewer extension of certain properties within or contagious to the Carriage Hills subdivision. Enclosed please find a copy of the agreement. Please obtain signatures and once recorded, return a copy to our office. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure cc: M. Catherine Fanello, Partner Krieg DeVault LLP 41010 Edison Lakes Parkway, Suite 100 Mishawaka, IN 46545 GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR Cross Reference Instrument No. 2019-19315 and 2019-19429 ASSET PURCHASE AGREEMENT By and Between ST. JOSEPH COUNTY REGIONAL WATER AND SEWER DISTRICT, AS SELLER and CITY OF SOUTH BEND, INDIANA, ASPURCHASER RELATED TO CARRIAGE HILLS SUBDIVISION THIS ASSET PURCHASE AGREEMENT ("Agreement"), dated as of October 27, 2020 ("Effective Date"), by and between the St. Joseph County Regional Water and Sewer District ("District") and the City of South Bend, Indiana, each a political subdivision existing under the laws of the State of Indiana ("South Bend"). RECITALS WHEREAS, the District and South Bend have entered into that certain amended and restated Master Agreement dated as of July 9, 2019 (the "Master Agreement") and that certain amended and restated Project Addendum No. 2 to the Master Agreement dated as of July 9, 2019 (the "Project Addendum No. 2"), recorded in Instrument No. 2019-19315 and Instrument No. 2019-19429, respectively, in the Office of the Recorder of St. Joseph County, Indiana; and WHEREAS, the District desires to facilitate the connection to sanitary sewers of certain real properties within or contiguous to the Carriage Hills Subdivision ("Carriage Hills"), as set forth in the Project Area Boundary Map as shown in Exhibit "A" (the "Project Area"); and WHEREAS, South Bend has a wastewater facility near the Project Area and said facility has sufficient capacity to serve the Project Area; and WHEREAS, pursuant to Project Addendum No. 2, South Bend has agreed to accept wastewater from the District and to process and dispose of the same, as more particularly described in the Project Addendum No. 2; and WHEREAS, the District has applied for and a loan through the United States Department of Agriculture Rural Development Loan Program (the "USDA") to facilitate the cost of construction of a wastewater collection system (the "System") within the Carriage Hills Subdivision Sub -District (the "Sub -District"); and WHEREAS, the District intends to issue revenue bonds of the District (the "Bonds") payable from certain revenues of the District collected within the Sub -District over a period not to exceed 40 years and USDA will purchase such Bonds to evidence a loan to the District for the purpose of making certain improvements within the Project Area; and WHEREAS, for so long as the Bonds are outstanding and the USDA is the owner of the Bonds, Project Addendum No. 2 is pledged as security for the payment of the principal and interest on the Bonds; and WHEREAS, upon payment of the whole amount of the principal and interest on the Bonds, the District desires to transfer the System to South Bend to provide on -going operation, maintenance, monitoring and repair of the System; and WHEREAS, during the term of Project Addendum No. 2, South Bend will provide a credit to the District representing the assumed System net asset value remaining after the Bonds are retired; and WHEREAS, the District has the authority to transfer the System to South Bend and South Bend has the authority to accept the System pursuant to the following: a. Each of the District and South Bend are governed by Indiana Code 36-1-11, as in effect on the date hereof, because each is a political subdivision; b. Each of the District and South Bend is a government entity under Indiana Code 36-1-11-8, as in effect on the date hereof, -2- C. Indiana Code 36-1-11-8 provides each of the District and South Bend with the authority to transfer or exchange property and establishes a process for doing so; d. Indiana Code 13-26-5-2(23) provides that the District may sell real or personal property determined by the board of the District to be no longer necessary or needed for the operation or purposes of the District WHEREAS, the District's construction of the System and South Bend's operation, monitoring and maintenance of the System, and the ultimate transfer of the System to South Bend presents a unique opportunity the benefits of which would not otherwise be available to the Project Area, NOW, THEREFORE, in consideration of the mutual promises and obligations in the Master Agreement and Project Addendum No. 2, the adequacy and sufficiency of which is hereby acknowledged, the District and South Bend agree as follows: Section 1. Transfer of System. Upon payment of the whole amount of the principal and interest so due on the Bonds, the District shall transfer ownership of the System to South Bend for the sum of One and 00/100 Dollar ($1.00). The repayment period of the Bonds is expected to be 40 years from the date of issuance of the Bonds. Upon transfer of the System to South Bend, South Bend agrees that it shall charge each retail customer served within the Sub -District at a rate that is not greater than the rate charged by South Bend to any other residential customer located within St. Joseph County, unless required by law to do so. Until such time as transfer is made to South Bend, the customers shall be customers of the District. Section 2. Successors and Assigns. No party hereto shall assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted assignment or delegation without prior written consent shall be void and of no force or effect. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto. Section 3. Governing Law; Jurisdiction. This Agreement shall be construed in accordance with and governed by the laws of the State of Indiana; and suit, if venue for any, action concerning this Master Agreement shall be brought in the State courts of St. Joseph County, Indiana. Section 4. Recordation. This Agreement shall be recorded by the District in the Office of the Recorder for St. Joseph County, Indiana. Section 5. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall together constitute the same instrument. [SIGNATURE PAGE FOLLOWS] -3- [Signature Page to Asset Purchase Agreement Related to Carriage Hills Subdivision] IN WITNESS WHEREOF, the Parties hereto have executed, or caused to be executed by their duly authorized representatives, this Agreement as of the date first above written. BOARD OF TRUSTEES, ST. JOSEPH COUNTY REGIONAL WATER AND SEWER DISTRICT President ATTEST: Secretary STATE OF INDIANA ) SS: ST. JOSEPH COUNTY ) Before me, the undersigned, a Notary Public, in and for said County and State, and each other, personally appeared and _ , known to me to be the President and Secretary, respectively, of the Board of Trustees, St. Joseph County Regional Water and Sewer District and acknowledged the execution of the foregoing instrument as their voluntary acts and being authorized so to do. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day of 2020. My Commission Expires: My County of Residence: -4- Notary Public - Written Notary Public - Printed NOTARY PUBLIC: AFFIX SEAL PROOF NOTARIAL CERTIFICATE STATE OF INDIANA SS: COUNTY OF ST. JOSEPH Before me, a Notary Public in and for said State and County, personally appeared, the witness , to the foregoing instrument, who, being duly sworn by me, did depose and say that they know , Signatory(s) of the Agreement, to be the individual(s) described herein and who executed the foregoing Agreement. WITNESS MY HAND and Notarial Seal this day of 20 My Commission Expires: My County of Residence: -5- Notary Public - Written Notary Public - Printed NOTARY PUBLIC: AFFIX SEAL CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS BOARD OF PUBLIC WORKS aV Gary A. Gilot, President Elizabeth A. Maradik, Member Joseph R. Molnar, Member STATE OF INDIANA ) SS: ST. JOSEPH COUNTY ) Therese J. Dorau, Member Jordan V. Gathers, Member ATTEST: i�zvldla C$fmtis Linda M. Marlin, Clerk Before me, the undersigned, a Notary Public, in and for said County and State, and each other, personally appeared Lx+sy-A &I 104 1 �QiZi � kA 4. PMMIIJIJ �h9. • Me I vt cx C � 'i~Gl er f 5 z . ] . 06 r•a to , '.M r,.lrr w rf . beA prcknown to me to be the members of the City of South Bend, Indiana Board of Public Work and acknowledged the execution of the foregoing instrument as their voluntary acts and being authorized so to do. IN WjTNESS VY34FREOF, I have hereunto subscribed my n and (fixed my official seal on the a day of 2020. My Commission Expires: Notary ublic - Written My County of Residence: TIMMER St..ip9eph County My Commission Expires •,P September 23, 2025 -6- ;14:►;1:''••. LORY L. � L- � 1 IrVI Vl�l-eli Notary ublic - Printed NOTARY PUBLIC: AFFIX SEAL PROOF NOTARIAL CERTIFICATE STATE OF INDIANA SS: COUNTY OF ST. JOSEPH Before me, a Notary Public in and for said State and County, personally appeared, the witness to the foregoing instrument, who, being duly sworn by me, did depose and say that they know the signatory(s) of the Agreement to be the individual(s) described herein and who executed the foregoing Agreement. WITNESS MY HAND and Notarial Seal this � day of , 20 9-0 My Commission Expires: Sabyd2ff a.3 .'P]�-.� � �� eary lic - Written My County of Residence: efD 4 ?i4.1�-IOYiRRY •'C`/5 $OR�p $1Ntin'l _•: MY commission Expires " ?1,0VSeptember 23. 2025 This instrument prepared by and when recorded return to: M. Catherine Fanello, Esq. (#29908-71) Krieg DeVault LLP 4101 Edison Lakes Parkway, Suite 100 Mishawaka, Indiana 46545 (574) 277-1200 •may,► Notary ublic - Printed NOTARY PUBLIC: AFFIX SEAL I affirm, under penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law: M. Catherine Fanello -7- BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 10-23-20 Name Kim Thompson Department Utilities BPW Date 10/27/20 Phone Extension 5969 Review and Approval Required Prior to Submittal to Board Diversity Compliance ❑ Officer Name and Inclusion Officer BPW Attorney ® Attorney Name Dept. Attorney ❑ Attorney Name Clara McDaniels Purchasing ❑ Check the Appropriate Item Type — Required. for All Submissions Professional Services Agreement ❑ Contract ❑ Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution ® ❑ Ease./Encroach Other: Required Information Company or Vendor Name St. Joseph County Regional Water and Sewer District New Vendor ❑ Yes❑ If Yes, Approved by Purchasing ❑ No MBE/WBE Contractor ❑ WBE Completed E-Verify Form Attached ❑❑ Nos Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description N/A Asset Purchase Agreement for Carriage Hills sewer extension For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount $ Increase % Current Percent of Change: Decrease ( %) New Amount $ Increase % Total Percent of Change: Decrease ( %) Time Extension Amount: New Completion Date: