HomeMy WebLinkAbout2025-04-21 I07 Waukee Gas Utility Purchase AgreementAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: April 21, 2025
AGENDA ITEM:Consideration of approval of a resolution approving a contract for the
sale of the Waukee Municipal Gas Utility to MidAmerican Energy
Company.
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: The City of Waukee held a special election on March
4, 2025 related to the question of whether the City should be authorized to discontinue and
dispose of the Waukee Municipal Gas Utility. The vote was overwhelmingly in favor of the sale
of the utility. The City Council has previously approved a resolution indicating that if a sale were
to move forward, it would be with MidAmerican Energy Company.
The City has worked with MidAmerican Energy Company and finalized a purchase agreement in
order to proceed forward with the sale. The agreement includes the terms of the sale including
purchase price, asset allocation and anticipated closing. Following approval by the Waukee City
Council, the purchase agreement must also be approved by the Iowa Utilities Board. Pending
their approval, it is anticipated that the utility would transition to MidAmerican Energy before the
end of the calendar year.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: The purchase price
established within the agreement is $18,750,000 which will be finalized with a true-up adjustment
for actual net book value acquired plus a 10% premium, provided however that no event the
purchase price will be below $17,650,000.
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the resolution
ATTACHMENTS: I. Proposed Resolution
II. Purchase Agreement
PREPARED BY:Brad Deets, City Administrator
REVIEWED BY:
I7
THE CITY OF WAUKEE, IOWA
RESOLUTION 2025-
RESOLUTION APPROVING A CONTRACT FOR THE SALE OF THE GAS UTILITY
TO MIDAMERICAN ENERGY COMPANY
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal
Organization; AND,
WHEREAS, the City of Waukee has owned and operated a natural gas utility within the City
limits of the City of Waukee since 1966; AND,
WHEREAS, the City has complied with the requirements of Iowa Code Section 388.2A (2025)
and has submitted to the voters at a special election to be held March 4, 2025 the question of
whether the City should be authorized to discontinue and dispose of the municipally-owned gas
utility, known as Waukee Municipal Gas Utility, by sale?; AND,
WHEREAS, at the Special Election held March 4, 2025 the voters authorized the City to
discontinue and dispose of the municipally-owned gas utility, known as Waukee Municipal Gas
Utility, by sale; AND
WHEREAS, the City has worked with MidAmerican Energy Company and finalized an
agreement to move forward with the sale of the Gas Utility to MidAmerican Energy Company.
NOW BE IT THEREFORE RESOLVED by the City Council of the City of Waukee that the
Asset Purchase Agreement attached hereto should be and the same is hereby approved.
BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute the Asset
Purchase Agreement on behalf of the City and any and all other documents necessary to
complete the sale in accordance with the Agreement.
BE IT FURTHER RESOLVED, that the City Attorney and City staff proceed to work with
MidAmerican Energy Company to assist in facilitating and completing the work necessary to
effectuate closing.
Passed by the City Council of the City of Waukee, Iowa, and approved this the 21st day of April,
2025.
____________________________
Courtney Clarke, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
R. Charles Bottenberg
Chris Crone
Rob Grove
Anna Bergman Pierce
Ben Sinclair
ASSET PURCHASE AGREEMENT
(WAUKEE MUNICIPAL GAS UTILITY)
This ASSET PURCHASE AGREEMENT is dated ______________, 2025 (the
“Effective Date”) and entered into by and between the City of Waukee, an Iowa municipality
(''Seller"), and MIDAMERICAN ENERGY COMPANY, a/an an Iowa Corporation ("Buyer").
RECITALS
A.Seller owns a municipal gas utility distribution system located in the City of
Waukee, Iowa, known as Waukee Municipal Gas Utility (the “Utility").
B.Seller has agreed to provide and sell to Buyer, all of Seller's ownership interest in
the distribution system and certain other assets of the Utility (the "Waukee Assets", as further defined
herein). Buyer has agreed to accept and purchase from Seller all of Seller's ownership interest in
the Waukee Assets .
C.Seller and Buyer desire to enter into this Agreement to set forth the terms and
conditions under which Seller will sell, and Buyer will purchase, all of Seller's right, title and
interest in and to the Waukee Assets.
NOW THEREFORE, in consideration of the mutual representations, warranties and
agreements set forth herein and for other valuable consideration, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The terms defined in this section, whenever used in this Agreement,
shall have the respective meanings indicated below for all purposes of this Agreement.
“Agreement” means this Asset Purchase Agreement, including all Exhibits and
Schedules hereto.
“Ancillary Agreements” means the Bill of Sale and the Assignment and
Assumption Agreement.
“Assigned Contracts” means as stated in Section 2.1(e).
“Assignment and Assumption Agreement” means the Assignment and Assumption
Agreement described in Section 5.2(b).
“Assumed Liabilities” means as stated in Section 3.1.
“Bill of Sale” means the Bill of Sale described in Section 5.2(a).
“Books and Records” means as stated in Section 2.1(c).
“Business Day” means any day except Saturday, Sunday or a Federal Reserve
Bank holiday.
“Buyer” means as stated in the opening paragraph of this Agreement.
“Buyer Indemnified Parties” means as stated in Section 11.1.
“Buyer’s Required Approvals” means, collectively, the declarations, filings and
registrations with, notice to, and authorizations, consents and approvals of, all
Governmental Authorities or Persons necessary for Buyer to execute and deliver this
Agreement and the Ancillary Agreements and for Buyer to consummate the transactions
contemplated hereby and thereby, which are listed in Schedule 8.3.
“Closing” and “Closing Date” mean as stated in Section 5.1.
"Confidential Information” means information relating to the finances, marketing
plans, operations, business opportunities, personnel, research and development activities,
intellectual property and know-how of the Parties. Confidential Information must be in
either written form on documents that are clearly identified on their face as being
confidential or unwritten form in conversations that are clearly identified as being
confidential at the time of the conversation and are confirmed to be confidential in a writing
delivered to the other Party within 48 hours of the conversation. Confidential Information
shall not include any information that (a) was in the lawful possession of the receiving
Party prior to the execution of this Agreement; (b) has become part of the public domain
without any violation of the confidentiality obligations under this Agreement; or (c) is
required by law or legal process to be publicly disclosed.
“Contracts” means as stated in Section 2.1(e).
“Customer Base” means as stated in Section 7.16.
“Due Diligence Commencement Date” means as stated in Section 6.1.
“Due Diligence Expiration Date” means as stated in Section 6.1.
“Encumbrances” means any mortgages, pledges, liens, security interests,
restrictions on transfer, rights of first refusal, conditional and installment sale agreements,
activity and use limitations, conservation easements, deed restrictions, easements,
encumbrances and charges of any kind.
“Environment” means all soil, real property, air, water (including surface waters,
streams, ponds, drainage basins and wetlands), groundwater, water body sediments,
drinking water, stream sediments and land (including land surface and subsurface strata),
including all fish, plant, wildlife and other biota and any other environmental medium or
natural resource.
“Environmental Claim” means any and all written claims alleging potential
Liability, administrative or judicial actions, suits, orders, liens, notices alleging Liability,
notices of violation, investigations which have been disclosed to Seller, complaints,
requests for information relating to the Release or threatened Release into the Environment
of Hazardous Substances, proceedings, or other written communication, whether criminal
or civil, relating to any applicable Environmental Law based upon, alleging or claiming
any actual or potential: (a) violation of, or Liability under, any Environmental Law; (b)
violation of any Environmental Permit; or (c) Liability for investigatory costs, clean-up
costs, removal costs, remedial costs, response costs, natural resource damages, property
damage, personal injury, fines or penalties arising out of, based on, or related to the
presence, Release, or threatened Release into the Environment of any Hazardous
Substances at any location related to the Waukee Assets, including any off-site location to
which Hazardous Substances or materials containing Hazardous Substances were sent
“Environmental Clean-up Site” means any location which is listed or formally
proposed for listing on the National Priorities List, the Comprehensive Environmental
Response, Compensation and Liability Act Information System, or on any similar state list
of site requiring investigation or clean-up, or which is the subject of any action, suit,
proceeding or investigation which has been disclosed in writing to Seller for any alleged
violation of any Environmental Law, or at which there has been a Release, or, to Seller's
Knowledge, a threatened Release, of a Hazardous Substance.
“Environmental Laws” means all federal, state and local Laws regarding pollution
or protection of the Environment, the conservation and management of land, natural
resources and wildlife or human health or the Occupational Safety and Health Act (only
as it relates to Hazardous Substances), including Laws regarding Releases or threatened
Releases of Hazardous Substances or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, Release, transport, disposal or handling of Hazardous
Substances. Environmental Laws include the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. §§ 960 I et seq.); Hazardous Materials
Transportation Act (49 U.S.C. §§ 1801 et seq.); Resource Conservation and Recovery Act
(42 U.S.C. §§ 6901 et seq.); Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et
seq.); Clean Air Act (42 U.S.C. §§ 7401 et seq.); Toxic Substances Control Act (15 U.S.C.
§§ 2601 et seq.); Oil Pollution Act (33 U.S.C. §§ 2701 et seq.); Emergency Planning and
Community Right-to-Know Act (42 U.S.C. §§ 11001 et seq.); and Occupational Safety
and Health Act (29 U.S.C. §§ 651 et seq.) only as it relates to Hazardous Substances.
“Environmental Permit” means any federal state or local permits, licenses,
approvals, consents, registrations or authorizations required by any Governmental
Authority under or in connection with any Environmental Law, including any and all
orders, consent orders or binding agreements issued by or entered into by a Governmental
Authority under any applicable Environmental Law.
“Excluded Assets” means as stated in Section 2.2.
“Excluded Liabilities” means as stated in Section 3.2.
“Escrowed Amount” means as stated in the Escrow Agreement.
“Escrow Agent” means Brick Gentry P.C., an Iowa corporation.
“Escrow Agreement”) means as stated in Section 15.1.
“Estimated Purchase Price” means the Purchase Price estimated in good faith
immediately prior to the Closing by Seller and Buyer pursuant to Section 4.1, applying the
formula set forth in Schedule 4.1, minus the Escrowed Amount.
“Final Schedule 2.1 – Waukee Assets” means as stated in Section 4.3(d).
“FERC” means the Federal Energy Regulatory Commission.
“Franchise” means as stated in Section 10.1(d).
“GAAP” means generally accepted accounting principles as accepted by the
Financial Accounting Standards Board (FASB) and the Government Accounting Standards
Board, as in effect from time to time but excluding, with respect to financial statements,
footnote disclosures and other presentation items otherwise required.
“Governmental Authority” means any government, state or other political
subdivision thereof, including any municipality, township or county, and any entity or
agency exercising executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, including any corporation or other entity owned or
controlled by any of the foregoing; provided, however, Governmental Authority shall not
mean or include Seller.
"Governmental Order" means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental Authority.
“Hazardous Substances” means: (a) any petroleum, asbestos, and or other
equipment that contains polychlorinated biphenyls; and (b) any chemicals, materials or
substances defined as or included in the definition of “hazardous substances,” “hazardous
wastes,” “hazardous materials,” “hazardous constituents,” “restricted hazardous
materials,” “extremely hazardous substances,” “toxic substances,” “contaminants,”
“pollutants,” “toxic pollutants” or “hazardous air pollutants” or words of similar meaning
and regulatory effect under any applicable Environmental Law.
“Indemnified Party” means any Person asserting a claim for indemnification under
any provision of Article 11.
“Indemnifying Party” means any Person against whom a claim for
indemnification is being asserted under any provision of Article 11.
“Infrastructure Boundary Issues” means as defined in Schedule 7.6.
“Insurance Policies” means all insurance policies carried by or for the benefit of
Seller with respect to the ownership, operation or maintenance of the Waukee Assets,
including all liability, property damage and business interruption policies.
“IRS” means the United States Internal Revenue Service.
“IUB” means the Iowa Utilities Board, to be known as the Iowa
Utilities Commission pursuant to Section 369 of Senate File 2385, 90th
General Assembly.
“Knowledge” means: (a) actual knowledge or awareness of a circumstance or fact;
and (b) knowledge or awareness of a related circumstance or fact that a Party would be
expected to have after conducting a reasonable investigation following such Party’s
receipt of actual knowledge or awareness of a circumstance or fact.
“Law” means all laws, rules, regulations, codes, statutes, ordinances, treaties
and Governmental Orders.
“Liability” or “Liabilities” means any liabilities or obligations, whether known
or unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become
due.
“Loss” or “Losses” means any and all damages, fines, penalties, deficiencies,
losses, Liabilities, Taxes and expenses, including interest, court costs, reasonable fees
of attorneys, accountants and other experts, and other reasonable expenses of litigation
or other proceedings or of any claim, default or assessment.
“Material Adverse Effect” means: (a) any material adverse change in, or material
adverse effect on, or any circumstance that could reasonably be expected to cause a
material adverse change in or material adverse effect on, the Waukee Assets, the
Liabilities associated with the Waukee Assets, or the condition or operation of the
Waukee Assets; or (b) a material adverse effect on the ability of Seller or Buyer to perform
its obligations under this Agreement.
“Material Loss” means as stated in Section 9.5(b).
“Non-Material Contracts” means those contracts, agreements, personal property
leases or other commitments incidental to the operation or maintenance of the Waukee
Assets that have been entered into by Seller, in the ordinary course of business prior to
the Closing Date which: (a) are either (i) terminable, without penalty or any other
termination related Liability, upon notice of 90 days or less by Seller or (ii) have a
remaining term of one year or less; or (b) require the payment or delivery of goods or
services with a value of less than $100,000 in the case of any individual contract or
commitment.
“Parties” means Seller and Buyer.
“Party” means Seller or Buyer.
“Permits”means all permits, licenses, registrations, certificates, franchises and
other governmental authorizations, consents and approvals used in or necessary for the
ownership and operation of the Waukee Assets as presently conducted or as required by
Law, including all Environmental Permits.
“Permitted Encumbrances” means: (a) statutory liens for Taxes or other
governmental charges or assessments not yet due or delinquent or the validity of which
are being contested in good faith; (b) mechanic’s, materialmen’s, and other similar liens
arising or incurred in the ordinary course of business; (c) zoning, entitlement,
conservation restriction and other land use and environmental regulations imposed by
Governmental Authorities; and (d) easements, restrictions, covenants and other matters
of record accepted by Buyer.
“Person” shall mean any individual, corporation, partnership, limited liability
company, joint venture, association, cooperative, joint-stock company, trust, non-
incorporated organization or government or any agency or political subdivision thereof.
“Pre-Closing Date” means the day immediately preceding the Closing Date.
“Prudent Utility Practices” means, at a particular time, any of the practices, methods
and acts engaged in or approved by a significant portion of the gas utility industry prior to
such time, or any of the practices, methods and acts which, in the exercise of reasonable
judgment in light of the facts known, or which reasonably could have been known, at the
time the decision was made, could have been expected to accomplish the desired result at
a reasonable cost consistent with good business practices, reliability, safety and expedition.
Prudent Utility Practice is not intended to be limited to the optimum practice, method or
act to the exclusion of all others, but rather to be a spectrum of possible practices, methods
or acts expected to accomplish the desired results, having due regard for, among other
things, economic factors, manufacturers’ warranties and the requirements of Governmental
Authorities and the requirements of this Agreement.
“Purchase Price” means as stated in Section 4.1.
“Real Property” means as stated in Section 2.1(e).
“Real Property Interests” means as stated in Section 2.1(d).
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of a Hazardous
Substance into the Environment or within any building, structure, facility or fixture;
provided, however, that Release does not include any release that is permissible under
applicable Environmental Laws or Environmental Permits.
“Remediation” means action of any kind required by any applicable Law or order
of a Governmental Authority to address a Release, the threat of a Release, or the presence
of Hazardous Substances at the Site or an off-Site location, including the following
activities to the extent they relate to or arise from the presence of a Hazardous Substance
at the Site or an off-Site location: (a) monitoring, investigation, assessment, treatment,
clean-up, containment, removal, mitigation, response or restoration work; (b) obtaining
any permits, consents, approvals or authorizations of any Governmental Authority
necessary to conduct any such activity; (c) preparing and implementing any plans or
studies for any such activity; (d) obtaining a written notice from a Governmental
Authority with jurisdiction over the Site or an off-site location under Environmental Laws
that no material additional work is required by such Governmental Authority; (e) the use,
implementation, application, installation, operation or maintenance of remedial action on
the Site or an off-Site location, remedial technologies applied to the surface or subsurface
soils, excavation and off-Site treatment or disposal of soils, systems for long-term
treatment of surface water or ground water, engineering controls or institutional controls;
and (f) any other activities required under Environmental Laws to address the presence or
Release of Hazardous Substances at the Site or an off-site location.
“Seller” means as stated in the opening paragraph of this Agreement.
“Seller Indemnified Parties” means as stated in Section 11.2.
“Seller's Agreements” means as stated in Section 7.16.
“Seller's Required Approvals” means, collectively, the declarations, filings and
registrations with, notices to, and authorizations, consents and approvals of, all
Governmental Authorities or Persons necessary for Seller to execute and deliver this
Agreement and the Ancillary Agreements and for Seller to consummate the transactions
contemplated hereby and thereby, which are listed in Schedule 7.3.
“Service Commitments” means as stated in Section 8.8.
“Site” means the parcels of land included in the Real Property, including all
surface and subsurface elements of such land.
“Tax” or “Taxes” means all taxes, charges, fees, levies, penalties or other
assessments imposed by any federal, state, local, provincial or foreign taxing authority,
including income, gross receipts, excise, real or personal property, sales, transfer,
customs, duties, franchise, payroll, withholding, social security, receipts, license, stamp,
occupation, employment or other taxes, including any interest, penalties or additions
attributable thereto, and any payments to any state, local, provincial or foreign taxing
authorities in lieu of any such taxes, charges, fees, levies or assessments.
“Transfer Filings” means as stated in Section 10.1(c) of this Agreement.
“Transfer Taxes” means any real property transfer, sales, use, value added, stamp,
documentary, recording, registration, conveyance, stock transfer, intangible property
transfer, personal property transfer, gross receipts, registration, duty, securities
transactions or similar fees or Taxes or governmental charges as levied by any
Governmental Authority in connection with the transactions contemplated by this
Agreement, including any payments made in lieu of any such Taxes or governmental
charges which become payable in connection with the transactions contemplated by this
Agreement.
“Voter Approval” means as stated in Section 10.1(b).
“Waukee Assets” means as stated in Section 2.1.
1.2.Other Definitional and Interpretive Matters. Unless otherwise expressly provided,
for purposes of this Agreement, the following rules of interpretation shall apply:
a.Exhibits and Schedules. The Exhibits and Schedules to this Agreement are
hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any
capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall
be defined as set forth in this Agreement.
b.Herein. Words such as “herein”, “hereinafter”, “hereof” and “hereunder”
refer to this Agreement as a whole and not merely to a section or subsection in which such
words appear unless the context otherwise requires.
c.Including. The word “including” or any variation thereof means “including,
without limitation” and shall not be construed to limit any general statement that it follows
to the specific or similar items or matters immediately following it.
d.Internal References. Unless otherwise expressly stated, all references in this
Agreement to a Section, Schedule or Exhibit are references to a Section, Schedule or
Exhibit in or to this Agreement.
e.Calculation of Time Period. When calculating the period of time within
which, or following which, any act is to be done under this Agreement, the date that is the
reference date in calculating such period shall be excluded. If the last day of such period is
a non-Business Day, the period shall end the next succeeding Business Day.
1.3.Joint Participation. The Parties shall be considered to have participated jointly in
the negotiation and drafting of this Agreement and, in the event an ambiguity arises, this
Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of authorship of any provision of this
Agreement.
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale of Assets. Upon the terms and subject to the conditions of this
Agreement, on the Closing Date, Seller shall sell, assign, transfer, convey and deliver to Buyer,
and Buyer shall purchase and accept from Seller, free and clear of all liens and Encumbrances
except as expressly set forth herein, and subject to the Permitted Encumbrances, all of Seller's
right, title and interest in, to and under the assets specifically identified in Schedule 2.1. Such
assets shall be hereinafter collectively referred to as the “Waukee Assets” and shall also include
the following:
a.All unexpired, transferable warranties and guarantees from third parties
with respect to any item of the Waukee Assets, if any.
b.All rights in and to any causes of action, claims (including rights under
insurance policies to proceeds, refunds or distributions thereunder paid after the Closing
Date) and defenses against third parties (including indemnification and contribution)
relating to any Assumed Liabilities.
c.All equipment repair, maintenance or service records, operating, safety and
maintenance manuals, inspection reports, environmental assessments, environment reports
and records maintained in compliance with Environmental Laws and regulations,
engineering design plans, documents, blueprints and as-built plans, specifications,
procedures and other similar items relating primarily to the Waukee Assets, whether
existing in hard copy or magnetic or electronic form (collectively, the “Books and
Records”).
d.All of Seller’s interest in and to any right-of-way permits, gas main
easements, access permits and leases pertaining to the existing gas utility infrastructure
owned by Seller herein identified in Schedule 2.1 (the “Real Property Interests”). Seller
shall assign the Real Property Interests: (i) in the case of gas main easements, pursuant to
an assignment in the form of Exhibit C (Form of Easement Assignment), and (ii) in the
case of infrastructure located in city rights of way and public utility easements, pursuant to
an approved franchise ordinace and the right of way permitting ordinance, which may be
amended from time to time.
e.Certain real property owned by Seller in fee as identified in Schedule 2.1
(the “Real Property”).
f.All Contracts (the “Assigned Contracts”) identified in Schedules 2.1 and
3.1(d). The term “Contracts” means any purchase orders, contracts, agreements, licenses
and leases in which Seller may have an interest or rights relating to the ownership,
operation and maintenance of the Waukee Assets which are listed on Schedule 2.1 or which
are entered into in the ordinary course of the operation and maintenance of the Waukee
Assets after the date hereof.
2.2 Excluded Assets. Notwithstanding anything to the contrary contained in this
Agreement, Seller shall not sell, assign, transfer, convey or deliver to Buyer, and Buyer shall not
purchase and accept, and the Waukee Assets shall not include, Seller’s right, title or interest, if
any, in or to any assets not listed on Schedule 2.1, including but not limited to the following assets
(collectively, the “Excluded Assets”):
a.Seller’s administrative buildings located at 805 University Avenue,
Waukee, Iowa 50263 and 230 W. Hickman Road, Waukee, Iowa 50263.
b.Seller’s Automated Meter Infrastructure (“AMI”) or Automated Meter
Reading (“AMR”) and any rights the City possesses relative to the location and
placement of said infrastructure and equipment on City Property or property owned or
controlled by third parties. It is understood that Buyer, upon reasonable request and
subject to entering into an agreement and lease acceptable to the City, may be granted
separate authority to place Buyer’s own AMR or AMI antennae on elevated City
infrastructure under the same terms and conditions afforded to any other private party
utilizing said City infrastructure.
c.Seller’s public utility easements, rights of way and property not
otherwise specifically identified in section 2.1.
d.Seller’s operational assets consisting of fleet, field and office equipment
and supplies, and other items of tangible personal property used in the operation of the
Utility and not listed on Schedule 2.1.
e.Cash, cash equivalents, cash collateral accounts, bank deposits, trade
credits, accounts and notes receivable (trade or otherwise) of Seller, and any income,
sales, payroll or other receivables relating to the Waukee Assets during any period prior
to the Closing Date.
f.All assets and properties of every kind and description and whenever
located owned or held for use by Seller which are not used in, or related to, the Waukee
Assets.
g.Any rights in and to any causes of action, claims (including rights under
insurance policies to proceeds,refunds or distributions thereunder paid after the Closing
Date) relating to any Assumed Liabilities, if any, but only to the extent the foregoing
relate to any direct, incurred costs and expenses incurred by Seller, which direct, incurred
costs and expenses shall be reimbursed to Seller.
h.All other real and personal property of Seller not listed in Schedule 2.1.
i.Customer deposits collected or held by Seller in accordance with, and
subject to, Seller’s deposit policy to secure payment on customer accounts as the date of
closing.
i.All uninstalled gas utility inventory, finished goods, raw materials, supplies,
parts, and other inventories, including, but not limited to pipes, valves and meters.
j.
ARTICLE 3
ASSUMED LIABILITIES
3.1 Assumed Liabilities. Upon the terms and subject to the conditions set forth in this
Agreement, on the Closing Date, the Buyer shall assume, agree to pay, perform and discharge its
pro-rata share, when due, of the following obligations and liabilities of Seller (collectively, the
“Assumed Liabilities”):
a.All Liabilities in respect of the Assigned Contracts but only to the extent
that such Liabilities thereunder are required to be performed after the Closing Date, were
incurred in the ordinary course of business, and do not relate to any failure to perform,
improper performance, warranty, or other breach, default, or violation by Seller on or
prior to the Closing.
b.Those Liabilities of Seller set forth on Schedule 3.1(d).
3.2 Excluded Liabilities. Except as expressly provided in Section 3.1, Buyer shall not
assume or be liable for any Liabilities of Seller whatsoever, including the following Liabilities of
Seller (collectively, the “Excluded Liabilities”):
a. Any Liabilities of Seller in respect of any Excluded Assets or any other
assets of Seller which are not Waukee Assets.
b.Any Liabilities of Seller arising from the ownership, operation, use or
maintenance of the Waukee Assets which arise prior to the Closing Date or arise from
any event, fact or circumstance occurring or existing prior to the Closing Date, except as
provided herein.
c.Any Liabilities of Seller for Taxes attributable to the ownership, sale,
operation, maintenance or use of the Waukee Assets for taxable periods, or portions
thereof, ending prior to the Closing Date or arising from this Agreement or the
transactions contemplated hereby.
d.Liabilities of Seller to the extent arising from the execution, delivery or
performance of this Agreement and the transactions contemplated hereby.
e.Any other Liabilities expressly allocated to or retained by Seller in this
Agreement.
f.All other Liabilities of Seller, except to the extent that such Liabilities
constitute Assumed Liabilities.
ARTICLE 4
PURCHASE PRICE
4.1 Purchase Price. The aggregate consideration to be paid by Buyer for the Waukee
Assets shall be Eighteen Million Seven Hundred Fifty Thousand and No Hundredths Dollars
($18,750,000.00), adjusted as set forth on Schedule 4.1, including but not limited to a true-up
adjustment for actual net book value acquired plus a ten percent (10%) premium (the “Purchase
Price”); provided, however, that in no event shall the Purchase Price be below Seventeen Million
Six Hundred Fifty Thousand and No Hundredths Dollars ($17,650,000.00). The Purchase Price
shall be paid by Buyer as set forth in this Article 4.
4.2 Payment. The Purchase Price, computed in accordance with Schedule 4.1, plus the
payments provided in Schedule 2.1(Northern Natural Contracts), shall be paid by Buyer to Seller
in the following manner:
a.At the Closing, Buyer shall transfer and deliver: (i) to Escrow Agent, by
wire transfer to an account or accounts designed by Escrow Agent, the Escrowed
Amount; and (ii) to Seller, by wire transfer to an account or accounts designated by Seller,
the Estimated Purchase Price. All closing payments shall be reflected on a closing
statement to be executed by Buyer and Seller at Closing.
b.Within three (3) business days of the final determination of the Final
Schedule 2.1 – Waukee Assets (as defined Section 4.3(d)) in accordance with Section
4.3 below: (i) Buyer shall deliver to the Seller an amount equal to the Adjustment
Amount (as defined in Section 4.3(d)) in the event that the Adjustment Amount is
positive; or (ii) Seller shall deliver to Buyer an amount equal to the absolute value of
the Adjustment Amount in the event that the Adjustment Amount is negative, to an
account that Buyer has designated at least three (3) business days prior to the Closing.
4.3 Final Schedule 2.1 – Waukee Assets; Post-Closing True-Up. The final schedule
2.1 – Waukee Assets shall be determined as follows:
a.No later than five (5) business days after Closing, Seller shall deliver to
Buyer Final Schedule 2.1 – Waukee Assets as of the Pre-Closing Date, prepared from the
books and records of Seller, on a basis consistent with GAAP. The Final Schedule 2.1 –
Waukee Assets shall include a listing of every individual asset to be conveyed that includes
a detailed description of each asset, along with the asset’s acquisition date, original cost,
and accumulated depreciation to the date of Closing. Upon the submission of the Final
Schedule 2.1 – Waukee Assets by Seller, Seller and Buyer will work to mutually develop
a statement setting forth the Adjustment Amount, if any.
b.No later than five (5) business days following the delivery of the Final
Schedule 2.1 – Waukee Assets , each of Buyer and Seller may object to any of the
information contained in the Final Schedule 2.1 – Waukee Assets that could affect the
Purchase Price. Any such objection shall be made in writing and shall state the objecting
party’s determination of the Adjustment Amount. Failure to object in the manner set forth
herein shall be deemed acceptance of the Final Schedule 2.1 – Waukee Assets for all
purposes of determining the Adjustment Amount under the terms of this Agreement by the
Buyer or Seller, as the case may be.
c.In the event of a dispute or disagreement relating to the Final Schedule 2.1
– Waukee Assets or the Adjustment Amount that the parties are unable to resolve, either
party may elect to have all such dispute or disagreement resolved by an accounting firm
(the “Third Accounting Firm”) to be mutually selected by Seller and Buyer or, if no mutual
agreement is reached, such accounting firm as is mutually selected by Buyer’s accountants
and Seller’s accountants. The Third Accounting Firm shall make a resolution of Final
Schedule 2.1 – Waukee Assets in dispute as of the Pre-Closing Date and the calculation of
the Adjustment Amount, which shall be final and binding for purposes of this Article 4.
The Third Accounting Firm shall be instructed to use every reasonable effort to perform
its services within fifteen (15) days of submission of the Final Schedule 2.1 – Waukee
Assets to it and, in any case, as soon as practicable after such submission. The fees and
expenses for the services of the Third Accounting Firm shall be shared equally by Buyer
and Seller.
d.The Waukee Assets as of the Pre-Closing Date as determined in accordance
with this Section 4.3 is herein referred to as the “Final Schedule 2.1 – Waukee Assets.”
The “Adjustment Amount” shall be an amount equal to the difference between the Purchase
Price (based on the Final Schedule 2.1 – Waukee Assets) and the Estimated Purchase Price
determined as set forth on Schedule 4.1. If the Purchase Price (based on the Final Schedule
2.1 – Waukee Assets) exceeds the Estimated Purchase Price, the Adjustment Amount shall
be immediately paid to Seller in good funds. If the Purchase Price (based upon the Final
Schedule 2.1 – Waukee Assets) is less than the Estimated Purchase Price, the Adjustment
Amount shall be immediately paid to Buyer in good funds.
ARTICLE 5
CLOSING AND TRANSFER
5.1 Closing. Upon the terms and subject to the conditions of this Agreement, the sale
and purchase of the Waukee Assets and the related actions contemplated hereby shall take place
at a closing to be held at 10:00 a.m., prevailing Central Time, on November 6, 2025, at Brick
Gentry P.C., or at such other time, date or location as the Parties may agree upon in writing (the
“Closing” or the “Closing Date”), which Closing shall be effective for all purposes herein as of
12:0l a.m. prevailing Central Time on the Closing Date.
5.2 Closing Deliveries to Seller. At Closing, Seller shall perform all acts necessary to
put Buyer in actual and complete possession and control of the Waukee Assets, including the
delivery to Buyer of such instruments of sale, assignment and transfer duly executed and in form
and content satisfactory to counsel for Buyer, as are necessary to vest in Buyer good and
marketable title to and possession of the Waukee Assets, subject to the Permitted Encumbrances.
Without limiting the generality of the foregoing, Seller shall duly execute and/or deliver, as the
case may be, the following at Closing:
a.A Bill of Sale conveying the Waukee Assets to Buyer, free and clear of any
and all Encumbrances, except for the Permitted Encumbrances, in the form attached hereto
as Exhibit A (the “Bill of Sale”).
b.An Assignment and Assumption Agreement transferring to Buyer all of
Seller's rights and obligations under this Agreement (including but not limited to the rights
and obligations under the Assigned Contracts), in the form attached hereto as Exhibit B
(the “Assignment and Assumption Agreement”) and as it pertains to the Northern Natural
Gas Contracts assumed by Buyer, those documents required by Northern Natural Gas in
the ordinary course of their business operations.
c.Copies of Seller’s Required Approvals.
d.All instruments of transfer reasonably necessary or advisable to transfer to
the Buyer all of the Seller’s rights to the Permits.
e.All instruments, certificates, documents and other filings, if applicable,
necessary to release the Waukee Assets from all Encumbrances, except the Permitted
Encumbrances.
f.Copies certified by the City Clerk of Seller, of resolutions authorizing the
execution and delivery of this Agreement and all of the agreements and instruments to be
executed and delivered by Seller in connection herewith, and the consummation of the
transactions contemplated hereby.
g.Copies of all Books and Records in Seller’s possession or control or to
which Seller has access.
h.Such other instruments as are reasonably necessary to transfer any rights-
of-way, easements, access permits and leases identified in Schedule 2.1.
i.Such other instruments as are necessary to transfer the Assigned Contracts
identified in Schedule 2.1.
5.3 Buyer’s Deliveries. At Closing, Buyer shall duly execute and/or deliver to Seller,
as the case may be, the following:
a.The Purchase Price, as set forth in Section 4.1. subject to the Escrowed
Amount and Escrow Agreement as described in Section 15.1.
b.The Assignment and Assumption Agreement. and as it pertains to the
Northern Natural Gas Contracts assumed by Buyer, those documents required by
Northern Natural Gas in the ordinary course of their business operations.
c.Copies of Buyer’s Required Approvals.
d.Copies, certified by the appropriate officer of Buyer, of resolutions
authorizing the execution and delivery of this Agreement, and all of the agreements and
instruments to be executed and delivered by the Buyer in connection herewith, and the
consummation of the transactions contemplated hereby.
5.4 Prorations. Buyer and Seller agree that all of the items normally prorated,
including those listed below, relating to the use and operation of the Waukee Assets shall be
prorated as of 12:01 a.m. on the Closing Date, with Seller entitled to, and responsible for, such
items to the extent they relate to any time period prior to 12:01 a.m. on the Closing Date, and
Buyer entitled to, and responsible for, such items to the extent they relate to periods commencing
as of 12:01 a.m. on the Closing Date:
a.Taxes, assessments and other charges, if any, relating to the ownership, use
or business of the Waukee Assets. For property listed in Section 2.l(d), Seller shall pay all
personal property taxes assessed in the year prior to the year in which the Closing occurs
and in any prior year. All personal property taxes assessed for the year in which the Closing
occurs shall be prorated to the Closing Date, with Seller responsible for all taxes assessed
up to the Closing Date and Buyer responsible for all taxes assessed thereafter.
b.All income, rights and credits arising from or relating to the ownership or
operation of the Waukee Assets.
Each Party shall immediately deliver to the other Party any income, rights and credits received by
a Party which are the property of the other Party, as described in this Agreement. The Parties shall
cooperate after the Closing Date to fully implement the proration of items as described in this
section.
5.5 Time. The Parties acknowledge and agree that time is of the essence in the
performance of this Agreement. Each Party’s agreement to perform its obligations on the dates set
forth in this Agreement, including the Closing Date, are material terms to this Agreement and
constitute important consideration and inducement to the Parties without which they would not
have agreed to execute and deliver this Agreement.
5.6 Updated Schedules. In the event it is necessary for Buyer or Seller to update any
of the Schedules to the Agreement prior to Closing, the Party updating the Schedules shall deliver
to the other Party a full and complete set of the Schedules to this Agreement no later than the
Closing Date, and such Schedules, if received by the Party on or prior to the Closing Date, shall
be deemed to be part of the Schedules delivered in connection with the execution and delivery of
this Agreement. Buyer and Seller shall have received and be reasonably satisfied as to the accuracy
of any delayed Schedules delivered under this Section 5.6 and the receiving Party shall notify the
other Party of any objections to any delayed Schedules within five (5) business days of receipt of
such delayed Schedules.
ARTICLE 6
DUE DILIGENCE
6.1 Access; Investigation. Beginning on a date that is ten (10) days after the date of
Voter Approval (the “Due Diligence Commencement Date”) and ending on a date that is ninety
(90) days after the Due Diligence Commencement Date (the “Due Diligence Expiration Date”),
Buyer shall have the right to investigate and inspect the Waukee Assets and to make such audits,
tests, studies, examinations, appraisals and due diligence investigations as deemed necessary or
desirable by Buyer, including without limitation a Phase I and Phase II Environmental Site
Assessment. Buyer shall make a good faith effort to complete such investigations as soon as
reasonably practicable after the Due Diligence Commencement Date, shall periodically apprise
Seller of its progress with such investigations, and shall apprise Seller of any findings that Buyer
believes might prevent the Closing. In the event that Buyer is not satisfied, acting reasonably, with
the results of the due diligence investigation, Buyer shall be entitled, at its reasonable discretion
and in accordance with Section 12, to terminate its obligations under this Agreement any time
prior to the Closing.
Seller shall furnish to Buyer or its authorized representatives such information and
documents concerning the Waukee Assets and their operation, maintenance and performance as
Buyer shall reasonably request. Seller shall also use its best efforts, upon reasonable notice, to: (a)
give Buyer and its representatives reasonable access to management personnel engaged in the
operation of the Waukee Assets and all books, records, and other facilities and properties
constituting the Waukee Assets; (b) furnish Buyer with such operating data and other information
with respect to the Waukee Assets as Buyer may from time to time reasonably request; and (c)
furnish Buyer a copy of each material report, schedule or other document filed with respect to the
Waukee Assets with any other Governmental Authority having jurisdiction over the Waukee
Assets; provided, however, that any such investigation shall be conducted in such a manner as not
to interfere unreasonably with the operation of the Waukee Assets; provided, however, Seller need
not supply Buyer with information that Seller is legally prohibited from supplying. All information
furnished to or obtained by Buyer pursuant to this section or previously provided by Seller shall
constitute Confidential Information under this Agreement, except to the extent such information
is excluded from the definition of Confidential Information pursuant to the last sentence of the
definition thereof. Buyer agrees to return all such information and all copies thereof upon
termination of this Agreement.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
As further inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller represents and warrants to Buyer and agrees as follows:
7. l Organization. Seller is a municipal corporation duly organized, validly existing,
and in good standing under the laws of the State of Iowa and has all requisite power and authority
to own, lease and operate its properties and to carry on its business as is now being conducted.
7.2 Authorization. Seller has full power and authority to execute and deliver this
Agreement and the Ancillary Agreements and, upon the receipt of Seller’s Required Approvals, to
consummate the transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Ancillary Agreements have been, and, upon the receipt of Seller’s Required
Approvals, the consummation of the transactions contemplated hereby and thereby will have been,
duly and validly authorized by all necessary action required on the part of Seller. No other
proceedings on the part of Seller are necessary to authorize this Agreement or the Ancillary
Agreements or, upon the receipt of Seller’s Required Approvals, to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly and validly executed and
delivered by Seller and, at the Closing, the Ancillary Agreements will be duly and validly executed
and delivered by Seller, and this Agreement and the Ancillary Agreements shall constitute the
legal, valid and binding agreements of Seller.
7.3 Consents and Approvals. Except for Seller’s Required Approvals as set forth in
Schedule 7.3, the Voter Approval set forth in Section 10.1(b) and the IUB actions and Transfer
Filings set forth in Section 10.l(c), no declaration, filing or registration with, or notice to, or
authorization, consent or approval of, any Governmental Authority or Person is necessary for the
execution and delivery of this Agreement or the Ancillary Agreements by Seller or the
consummation by Seller of the transactions contemplated hereby or thereby.
7.4 No Violation. Subject to the receipt of Seller’s Required Approvals, neither the
execution and delivery of this Agreement or the Ancillary Agreements by Seller nor the
consummation of the transactions contemplated hereby or thereby by Seller will (a) conflict with
or result in the breach or violation of any provision of the formational or governing documents of
Seller; (b) result in a default under, or conflict with the terms of, any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to which Seller is a party or by
which Seller, or any of the Waukee Assets, may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or consents have been
obtained; or (c) violate any Law applicable to Seller, or any of its assets, which violation would
have a Material Adverse Effect.
7.5 Reports. To Seller’s Knowledge, Seller has properly filed or caused to be properly
filed with the applicable state or local utility commissions or regulatory bodies and FERC, as the
case may be, all material forms, statements,reports and documents required to be filed with respect
to the Waukee Assets under any applicable Laws.
7.6 Title. Seller owns all of the Waukee Assets. Seller has, or at Closing will have,
good and valid title to the Waukee Assets, free and clear of all Encumbrances, except: (a) the
Permitted Encumbrances and (b) as set forth on Schedule 7.6.
7.7 Insurance. All Insurance Policies are in full force and effect, all premiums with
respect thereto covering all periods up to and including the date as of which this representation is
being made have been paid, and no written notice of cancellation, non-renewal or termination has
been received with respect to any such policies which was not replaced on substantially similar
terms prior to the date of such cancellation.
7.8 Legal Proceedings. There are no claims, actions, proceedings or investigations
pending or threatened against Seller before any arbitrator, mediator or Governmental Authority
that may have a Material Adverse Effect. Seller is not subject to any outstanding Governmental
Orders that may materially adversely affect the Waukee Assets.
7.9 Permits. All Permits necessary for the ownership (including by Seller) and
operation of the Waukee Assets have been obtained and are in full force and effect, and, to Seller’s
Knowledge, the Waukee Assets have been, and are being, operated and maintained in full
compliance with the Permits. Seller has not received any notification, which remains unresolved,
that the Waukee Assets, or any portion thereof, are in violation of any of the Permits. Schedule 7.9
sets forth all Permits applicable to the Waukee Assets that are held by Seller.
7.10 Compliance with Laws. There are no existing violations by Seller of any applicable
Laws or Governmental Orders with respect to the Waukee Assets or the operation thereof or which
may adversely affect Seller's execution or performance of this Agreement.
7.11 Condition of Assets. The Waukee Assets are in good operating condition, normal
wear and tear excepted. Other than the items set forth in the scheduled upgrades relating to the
Waukee Assets attached hereto as Schedule 7.11, there are no material upgrades, refurbishments
or capital additions or improvements of the Waukee Assets that have been identified as being
required or planned, in each case during the twelve (12) month period following the Closing Date,
for the Waukee Assets to be operated in the ordinary course after the Closing Date. Except for the
representation of Seller set forth in this Section 7.11 above, Seller makes no representations
regarding the condition of the Waukee Assets, and Buyer accepts the Waukee Assets as is.
7.12 Tax Matters. Seller has timely and accurately filed any and all returns and reports
required to be filed with the IRS or any state or local taxing authority, and has paid any and all
Taxes due and payable by Seller, in connection with or relating to Seller’s ownership and use of
the Waukee Assets. There are no Encumbrances for Taxes upon the Waukee Assets.
7.13 Certain Contracts and Arrangements. Except for: (a) any Assigned Contracts (b)
contracts, agreements, personal property leases, commitments, understandings or instruments in
which all rights or obligations of Seller will be fully performed or terminated prior to the Closing
Date, (c) Non-Material Contracts, and (d) the Ancillary Agreements, Seller is not, as of the date of
this Agreement, a party to, or to Seller’s Knowledge a beneficiary of, any contract, agreement,
personal property lease, commitment, understanding or instrument relating to the ownership or
operation of the Waukee Assets.
7.14 Brokerage Fees and Commissions. No broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of Seller, except
for PFM Financial Advisors, LLC.
7.15 Disclosure. No representation or warranty or other statement made by Seller in this
Agreement, the Ancillary Agreements, or any other document delivered by or on behalf of Seller
in conjunction with this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary to make any of them, in light of the circumstances under which it
was made, not misleading.
7.16 Municipal Gas Utility Customers. To Seller’s Knowledge, Seller’s customer base
for the service area served by the Waukee Assets is as described in Schedule 7.16 (“Customer
Base”).
7.17 No FERC Facilities. Seller has not and is not transferring as part of the Waukee
Assets any FERC jurisdictional facilities.
7.18 Environmental. Seller has no knowledge of any Environmental Claim, including
any pending or threatened, on the real property where the Waukee Assets are located prior to the
Closing.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF BUYER
As a further inducement to Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, Buyer represents and warrants to Seller and agrees as follows:
8.1 Organization. Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Iowa and has all requisite power and authority to own,
lease, and operate its properties and to carry on its business as is now being conducted.
8.2 Authorization. Buyer has full corporate power and authority to execute and deliver
this Agreement and the Ancillary Agreements and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements
and the consummation of the transactions contemplated hereby and thereby have been duly and
validly authorized by all necessary action required on the part of Buyer and no other proceedings
on the part of Buyer are necessary to authorize this Agreement or the Ancillary Agreements or to
consummate the transactions contemplated hereby and thereby. This Agreement has been duly and
validly executed and delivered by Buyer and, at the Closing, the Ancillary Agreements will be
duly and validly executed and delivered by Buyer, and this Agreement and the Ancillary
Agreements shall constitute the legal, valid and binding agreement of Buyer.
8.3 Consents and Approvals. Except for Buyer’s Required Approvals as set forth in
Schedule 8.3, and the IUB actions and Transfer Filings set forth in Section 10.l(c), no declaration,
filing or registration with, or notice to, or authorization, consent or approval of, any
Governmental Authority or Person is necessary for the execution and delivery of this Agreement
or the Ancillary Agreements by Buyer or the consummation by Buyer of the transactions
contemplated hereby or thereby.
8.4 No Violation. Subject to the receipt of Buyer’s Required Approvals, neither the
execution and delivery of this Agreement or the Ancillary Agreements by Buyer nor the
consummation of the transactions contemplated hereby or thereby by Buyer will (a) conflict with
or result in the breach or violation of any provision of the formational or governing documents of
Buyer; (b) result in a default under, or conflict with the terms of, any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to which Buyer is a party or by
which Buyer may be bound, except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been obtained; or (c) violate any Law
applicable to Buyer, or any of its assets, which violation would have a Material Adverse Effect.
8.5 Legal Proceedings. There are no claims, actions, proceedings or investigations
pending or, to Buyer’s Knowledge, threatened against Buyer before any arbitrator, mediator or
Governmental Authority which may: (a) have a Buyer Material Adverse Effect; or (b) prohibit the
performance by such Buyer of this Agreement or any of the Ancillary Agreements or the
consummation of the transactions contemplated hereby or thereby. Buyer is not subject to any
outstanding Governmental Orders which would have a Buyer Material Adverse Effect.
8.6 Brokerage Fees and Commissions. No broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.
8.7 Disclosure. No representation or warranty or other statement made by Buyer in this
Agreement, the Ancillary Agreements, or any other document delivered by or on behalf of Buyer
in conjunction with this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary to make any of them, in light of the circumstances under which it
was made, not misleading.
8.8 Service Commitments. Buyer agrees and acknowledges that the service
commitments set forth in Article 13 of this Agreement (the “Service Commitments”), including
but not limited to the rate commitments in Section 13.2 are material parts of the total consideration
provided by Buyer for the transaction contemplated by this Agreement and were relied upon by
Seller for Seller’s decision to enter into the transaction and this Agreement. Buyer agrees and
acknowledges that its consideration for the transaction and this Agreement include the
performance of said Service Commitments subsequent to the Closing Date, and that failure to
perform such Service Commitments will constitute a material breach of this Agreement entitling
Seller to all remedies available at law or in equity.
ARTICLE 9
COVENANTS
9.1 Conduct of Business. From the Effective Date to the Closing Date, except for the
regulation of the rights of way and property interest owned or otherwise possessed by Seller, Seller
shall take no action that would cause the Waukee Assets not to be operated and maintained in the
ordinary course consistent with Prudent Utility Practices and past practices at the Utility and
applicable federal, state and local laws which may be amended from time to time. Without limiting
the generality of the foregoing, Seller shall not directly do any of the following with respect to the
Waukee Assets:
a.Except for Permitted Encumbrances, sell, lease (as lessor), pledge,
mortgage, encumber, restrict, transfer or otherwise dispose of, or grant any right, or suffer
to be imposed any Encumbrance on or with respect to any of the Waukee Assets.
b.Enter into any agreement relating to the provision of gas service within the
service territory currently served by Seller. This includes but is not limited to entering into
new gas purchase or transport agreements that require the purchase of gas beyond the
Closing Date without participation and consent by the Buyer.
c.Engage in any practice, take any action, fail to take any action, or enter into
any transaction through the Closing Date that will result in any material breach of any
representation or warranty of Seller hereunder as of the Closing Date.
d.Fail to preserve intact the Waukee Assets.
e.Fail to comply with any Laws relating to the Waukee Assets.
f.Fail to maintain or repair the Waukee Assets in accordance with Prudent
Utility Practices and the historical maintenance and repair practices of Waukee Assets.
g.Fail to maintain the Insurance Policies on the Waukee Assets.
h.Settle any claim or litigation that results in any material obligation imposed
on the Waukee Assets that could reasonably be likely to continue past the Closing Date.
i.Agree to enter into any transactions or take any action, as applicable, set
forth in the foregoing subsections (a) through (h) above.
9.2 Consents and Approvals.
a.Following the execution of this Agreement, Seller shall use its best efforts
to make and/or obtain, as is applicable: (i) Seller’s Required Approvals (including but not
limited to the Voter Approval set forth in Section 10.1(b) and the IUB actions and Transfer
Filings set forth in Section 10.l(c)); (ii) the transfer of any Permits required to consummate
the transactions described in this Agreement; and (iii) any other consents, approvals or
authorizations advisable to consummate the transactions contemplated by this Agreement.
Seller shall consult with Buyer, and keep Buyer informed, regarding all material actions or
developments relating to Seller’s Required Approvals. All such consents, waivers,
approvals and notices will be in writing and in form and substance satisfactory to Buyer,
and copies thereof will be provided to Buyer promptly after receipt or making thereof, as
is applicable.
b.Following the execution of this Agreement, Buyer shall use its best efforts
to make and/or obtain, as is applicable: (i) Buyer’s Required Approvals (including but not
limited to the IUB actions and Transfer Filings set forth in Section 10.l(c)); (ii) the transfer
of any Permits required to consummate the transactions described in this Agreement; and
(iii) any other consents, approvals or authorizations advisable to consummate the
transactions contemplated by this Agreement. Buyer shall consult with Seller, and keep
Seller informed, regarding all material actions or developments relating to Buyer’s
Required Approvals. All such consents, waivers, approvals and notices will be in writing
and in form and substance satisfactory to Seller, and copies thereof will be provided to
Seller promptly after receipt or making thereof, as is applicable.
c.Seller shall be responsible for all costs associated with Seller’s Required
Approvals. Buyer shall be responsible for all costs associated with Buyer’s Required
Approvals. The Parties shall share out-of-pocket costs associated with the transfer of any
Permits or the receipt of any other consents, approvals or authorizations described in
subsections (a) and (b) above.
9.3 Tax Matters. Buyer shall be responsible for and pay the Transfer Taxes, if any,
incurred in connection with the transfer of assets and rights contemplated by this Agreement. Each
Party shall be responsible for any other Tax incurred by such Party, if any, as a result of this
Agreement and the transactions contemplated hereby. Each Party shall file, if and to the extent
required by applicable Law, all necessary Tax returns and reports and other documentation with
respect to their respective Tax obligations, if any.
9.4 Notification of Certain Matters. Prior to the Closing Date, Seller shall give notice
to Buyer, and Buyer shall give notice to Seller, as promptly as reasonably practicable upon
becoming aware of: (a) any fact, change, condition, circumstance, event, occurrence or non-
occurrence that has caused or is reasonably likely to cause any representation or warranty in this
Agreement made by it to be untrue or inaccurate in any respect at any time after the Effective Date
and prior to the Closing; (b) any material failure on its part to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it under this Agreement; (c) the
institution of or the threat of institution of any legal proceeding against any of the Parties related
to this Agreement or the transactions contemplated hereby; or (d) any circumstance, occurrence or
event which has, or may be reasonably expected to have, a Material Adverse Effect. No
information provided to a Party pursuant to this section shall limit or otherwise affect the remedies
available to such Party under this Agreement, nor shall it affect or impair the representations or
warranties of, or the conditions to the obligations of, the Parties.
9.5 Risk of Loss. Prior to the Closing Date, all risk of loss or damage to the Waukee
Assets shall be borne by Seller. In the event of condemnation or destruction or damage to the
Waukee Assets prior to the Closing Date, the terms of this section shall apply.
a.If, before the Closing Date, all or any material portion of the Waukee Assets
are taken by eminent domain or are the subject of a pending or, to Seller’s Knowledge,
contemplated taking which has not been consummated and such taking has resulted in, or
such contemplated taking could reasonably be expected to result in, a Material Adverse
Effect, Seller shall notify Buyer promptly in writing of this fact. In such event, the Closing
Date shall be automatically extended, if necessary, to a date that is ninety (90) days after
Seller gives such notice to Buyer. During the ninety (90) day period after Seller gives such
notice to Buyer, Buyer and Seller may negotiate alternate terms on which to proceed with
the transactions contemplated by this Agreement. If no agreement is reached within ninety
(90) days after Seller has notified Buyer of such taking, then any Party shall have the
option, in its sole discretion, to terminate this Agreement as to that Party’s obligations
hereunder.
b.If, before the Closing Date, all or any material portion of the Waukee Assets
are damaged or destroyed and such damage or destruction has resulted in a Material
Adverse Effect (a “Material Loss”), Seller shall notify Buyer promptly in writing of such
Material Loss. In the event of a Material Loss, the Closing Date shall be automatically
extended, if necessary, to a date that is thirty (30) days after the date that the Seller
determines whether or not to repair or rebuild the damaged assets. If the Seller elects not
to rebuild or repair the damaged assets, then this Agreement shall terminate upon the
Closing Date (extended as described in the preceding sentence) without any further action
by the Parties, unless otherwise agreed in writing by the Parties. If the Seller elects to
rebuild or repair the damaged assets, then this Agreement shall not terminate and, instead,
the Closing Date shall be extended to a date that is thirty (30) days after the date upon
which the reconstruction and repair of the damaged assets has been completed. In the event
Seller elects to rebuild or repair the damaged assets, Seller shall promptly notify Buyer
when reconstruction and repair of the damaged assets has been completed, and, anything
in Section 6.1 notwithstanding, Buyer shall have fifteen (15) days from the date of such
notice to investigate and inspect the damaged assets and to make such audits, tests, studies,
examinations, appraisals and due diligence investigations as deemed necessary or desirable
by Buyer. In the event that Buyer is not satisfied, acting reasonably, with the results of this
due diligence investigation, Buyer shall be entitled, at its reasonable discretion and in
accordance with Section 12, to terminate its obligations under this Agreement any time
prior to the Closing. Buyer’s right of due diligence under this subsection is in addition to,
and does not limit or waive, Buyer’s right of due diligence under Section 6.1.
9.6 Confidential Information. The Parties recognize the proprietary and confidential
nature of the Confidential Information which may be exchanged in the course of the performance
of this Agreement and, accordingly, undertake to protect and hold in strict confidence any
Confidential Information disclosed to a Party by the other Party and to use the Confidential
Information only for the purposes of the performance of this Agreement, or as otherwise expressly
agreed. In addition, Buyer recognizes the confidentiality of all information which has been or will
be provided by Seller prior to the Closing Date, and agrees to not use such information for any
purpose other than to evaluate the transaction contemplated herein. Notwithstanding these
provisions, the Parties may disclose such information: (a) if required by a Governmental Authority,
but only after notifying the other Party regarding such disclosure and using reasonable efforts to
obtain a protective order to limit disclosure and recognize the confidentiality of such Confidential
Information; (b) as may be required by applicable state open records laws; and (c) as may be
required to obtain any regulatory approvals or consent required for the performance of, or exercise
of any rights under, this Agreement.
9.7 Expenses. Except to the extent specifically provided herein, whether or not the
transactions contemplated hereby are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby, including the cost of legal,
technical and financial consultants and the cost of filing for and prosecuting applications for
Buyer’s Required Approvals and Seller’s Required Approvals, shall be borne by the Party
incurring such costs and expenses.
9.8 Post-Closing Maintenance of Records. Following the Closing Date and subject to
all applicable Laws, each Party shall have reasonable access to all of the books and records in the
possession of the other Party to the extent that such access may reasonably be required by such
Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters
relating to or affected by the operation of the Waukee Assets. Such access shall be afforded by the
Party in possession of such books and records upon receipt of reasonable advance notice and
during normal business hours. If the Party in possession of such books and records shall desire to
dispose of any such books and records earlier than three years after the Closing Date, such Party
shall, prior to such disposition, give the other Party a reasonable opportunity at such other Party’s
expense, to segregate and remove such books and records as such other Party may select.
9.9 Further Assurances; Cooperation. Subject to the terms and conditions of this
Agreement, each Party shall use its best efforts to take, or cause to be taken, all action, and to do,
or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate
and make effective the sale, transfer, conveyance and assignment of the Waukee Assets and the
assignment of the Assumed Liabilities or the exclusion of the Excluded Liabilities pursuant to this
Agreement and to consummate and make effective the other transactions contemplated by this
Agreement and the Ancillary Agreements, including using best efforts to ensure satisfaction of the
conditions precedent to each Party’s obligations hereunder and thereunder.
9.10 Post-Closing Actions. After the Closing Date, Seller will execute and deliver such
documents to Buyer as Buyer may reasonably request, at Seller’s expense, in order to more
effectively consummate the transactions contemplated by this Agreement or to more effectively
vest in Buyer title to the Waukee Assets, and Buyer will, at Buyer’s expense, execute and deliver
such documents to Seller as Seller may reasonably request in order to evidence Buyer’s assumption
of the Assumed Liabilities.
9.11 Public Statements. The Parties shall develop a mutually agreed upon press release
or public announcement to be issued with respect to the execution and/or performance of this
Agreement. No Party will make or issue any press release or public announcements or statements
with respect to this Agreement or the transactions contemplated hereunder without the prior
written consent of the other Party, except that such consent shall not be required where such
release, announcement or disclosure is required by applicable Law or the rules or regulations of a
securities exchange, other self-regulatory authority or governmental agency.
9.12 Assistance; Easements. Seller shall provide Buyer reasonable support and
assistance for acquiring all necessary easements, permits, and other required authorizations or
approvals for continued use and operation of the Waukee Assets. Any third-party cost and
expenses incurred by Seller in providing such support and assistance shall be paid by Buyer.
9.13 Employees and Employee Benefits.
a.Commencing on the Closing Date, Buyer shall offer employment to all
employees of Seller who are actively working with the Utility. Buyer’s obligation to offer
employment to any employee subject to this subsection 9.13(a) shall be contingent upon
the employee properly completing an application for employment with Buyer, which Buyer
will make available to the employee, and the employee’s successful completion of Buyer’s
usual background checks, screenings, and eligibility requirements, including but not
limited to eligibility for employment in the United States.
b.In the event Buyer hires any employee of Seller who is actively working
with the Utility, Seller shall be solely responsible for any compensation or other amounts
payable to any such employee of Seller, including, without limitation, hourly pay,
commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or
severance pay for any period relating to the service with Seller at any time on or prior to
the Closing Date and Seller shall pay all such amounts to all entitled persons on or prior to
the Closing Date.
c.Each employee of Seller who becomes employed by Buyer in connection
with the transactions contemplated by this Agreement shall be eligible to receive the salary
and benefits maintained for employees of Buyer on substantially similar terms and
conditions in the aggregate as are provided to similarly situated employees of Buyer.
d.Each employee of Seller who becomes employed by Buyer in connection
with the transaction shall be given service credit for the purpose of eligibility under the
group health plan and eligibility and vesting only under the qualified retirement plans under
the internal revenue code maintained by Buyer for his or her period of service with the
Seller prior to the Closing Date; provided, however, that (i) such credit shall be given
pursuant to payroll or plan records, at the election of Buyer, in its sole discretion; and (ii)
such service crediting is not specifically prohibited by Buyer's qualified retirement plans
as of December 31, 2022 and no ability to amend any such prohibition according to the
plan documents.
ARTICLE 10
CONDITIONS TO CLOSING
10.1 Conditions to Obligations of Each Party. The respective obligation of each Party to
consummate the transactions contemplated by this Agreement is subject to the satisfaction or, to
the extent permitted by Law, waiver by Buyer and Seller on or prior to the Closing Date (or such
other date as described below) of the following conditions:
a.No preliminary or permanent injunction or Law or Governmental Order
shall be in effect which prohibits the consummation of the transactions contemplated by
this Agreement.
b.Approval of the authority to discontinue and dispose of the municipally-
owned gas utility by sale, by the voters of the City of Waukee, according to the procedures
set forth in sections 388.2 and 388.2A of the Iowa Code (“Voter Approval”). “Approval”,
as used in this subsection “b”, includes expiration of the statutory period for challenging
the legality of the election or compliance with section 388.2A, as set forth in section
388.2.A(6) of the Iowa Code, without challenge. The parties agree that the Seller received
Voter Approval at a special election held March 4, 2025.
c.IUB approval of (i) Seller’s and Buyer’s joint application to discontinue and
transfer utility service made in accordance with Iowa Code section 476.20 and 199 Iowa
Administrative Code section 7.1(5) and (ii) Buyer’s application for reorganization pursuant
to sections 476.76 and 476.77 of the Iowa Code and 199 Iowa Administrative Code chapter
32, as well as any other regulatory filings the IUB requires to complete the sale and transfer
of the Waukee Assets from Seller and Buyer and for Buyer to begin gas utility service to
Seller’s customers (the “Transfer Filings”).
d.Grant by the City of Waukee, Iowa to Buyer of a franchise, in a form
attached hereto as Exhibit D, to elect, maintain, and operate plants and systems for
gasworks within the city pursuant to section 364.2 of the Iowa Code (the “Franchise”).
e.The receipt, on or before the Closing Date, or such other date as may be
agreed upon in writing by the Parties, of: (i) Seller’s Required Approvals; and (ii) Buyer’s
Required Approvals, each in a form and substance reasonably acceptable to the Parties and
on terms that do not adversely modify in any material respect the Permit or other subject
matter of the approval at issue, unless approved in writing by the Parties.
10.2 Conditions to Obligations of Buyer. The obligation of Buyer to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction or, in Buyer’s sole
discretion,waiver on or prior to the Closing Date of the following conditions:
a.The representations and warranties of Seller in this Agreement shall be true
and accurate in all material respects as of the Closing Date as if made at and as of such
time, other than those representations and warranties that address matters only as of a
particular date or only with respect to a specific period of time which need only be true and
accurate as of such date or with respect to such period.
b.Seller shall have performed and complied in all material respects with the
covenants and agreements contained in this Agreement which are required to be performed
and complied with by Seller on or prior to the Closing Date.
c.Buyer shall have received a certificate from an authorized officer of Seller,
dated the Closing Date, to the effect that the conditions set forth in Sections l0.2(a) and
10.2(b) have been satisfied by Seller.
d.Seller shall have delivered at Closing to Buyer: (i) executed Ancillary
Agreements; and (ii) all other closing deliverables required by Section 5.2.
e.Buyer shall have completed its due diligence evaluation of the Waukee
Assets and shall have received results and findings that are satisfactory to Buyer, in Buyer’s
reasonable discretion.
f.Buyer shall have obtained a copy of all Permits that are required for the
ownership and operation of the Waukee Assets after the Closing Date.
g.Assignment and assumption from Seller to Buyer of the rights and
obligations under the Assigned Contracts.
h.Between the date of this Agreement and the Closing Date, there shall not
have been any occurrence or event which, individually or in the aggregate, has resulted in
or would reasonably be expected to result in any Material Adverse Effect.
i.The existence of a franchise ordinance between Buyer and the City of
Waukee, Iowa, acting by and through the City Council of the City of Waukee, for purposes
of Buyer providing gas service in the City of Waukee, Iowa.
10.3 Conditions to Obligations of Seller. The obligation of Seller to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction or, in Seller’s sole
discretion, waiver on or prior to the Closing Date of the following conditions:
a.The representations and warranties of Buyer in this Agreement shall be true
and accurate in all material respects as of the Closing Date as if made at and as of such
time, other than those representations and warranties that address matters only as of a
particular date or only with respect to a specific period of time which need only be true and
accurate as of such date or with respect to such period.
b.Buyer shall have performed and complied in all material respects with the
covenants and agreements contained in this Agreement which are required to be performed
and complied with by Buyer on or prior to the Closing Date.
c.Seller shall have received certificates from an authorized officer of Buyer,
dated the Closing Date, to the effect that the conditions set forth in Sections 10.3(a) and
10.3(b) have been satisfied by Buyer.
d.Buyer shall have delivered at Closing to Seller: (i) as applicable, executed
Ancillary Agreements; and (ii) all other closing deliverables required by Section 5.3.
e.Between the date of this Agreement and the Closing Date, there shall not
have been any occurrence or event which, individually or in the aggregate, has resulted in
or would reasonably be expected to result in any Material Adverse Effect.
10.4 Waiver of Conditions. The Parties acknowledge and agree that in the event one or
more conditions to Closing described in this Article 10 are not satisfied, but the Party or Parties
waive such condition(s) and close on the transactions contemplated by this Agreement, such
waiver shall not in any way terminate, alter, qualify or otherwise effect any representations,
warranties, covenants or agreements with respect thereto by the Party charged with the obligation
to satisfy such condition, unless otherwise expressly agreed in writing by the Parties through a
signed amendment to this Agreement. For the avoidance of doubt the terms of this section shall
apply only in the event the transactions contemplated by this Agreement close as described in this
Agreement, and shall not apply in the event the transactions fail to close, in which case the terms
of Article 12 shall apply. Without limiting the generality of the foregoing, and notwithstanding
any other terms in this Agreement to the contrary, the following shall apply:
a.Seller shall be solely responsible for the delivery of Seller’s Required
Approvals and shall indemnify Buyer pursuant to the terms of Article 11 against any Losses
or Liabilities, following the Closing, which relate to or arise from Seller’s Required
Approvals or any failure to obtain, or any defect in, Seller’s Required Approvals, or any
claim relating thereto or associated therewith.
b.Buyer shall be solely responsible for the delivery of Buyer’s Required
Approvals and shall indemnify Seller pursuant to the terms of Article 11 against any Losses
or Liabilities, following the Closing, which relate to or arise from Buyer’s Required
Approvals or any failure to obtain, or any defect in, Buyer’s Required Approvals, or any
claim relating thereto or associated therewith.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification by Seller. Seller shall indemnify, defend and hold harmless Buyer,
and its respective agents, representatives, officers, successors, and assigns (“Buyer Indemnified
Parties”) from and against any Losses and Liabilities arising from or related to: (a) the inaccuracy
or breach of any representation or warranty of Seller contained in this Agreement; (b) any breach
or failure of Seller to perform any covenant or agreement of Seller in this Agreement; (c) the
Excluded Liabilities; (d) any event, fact or circumstance occurring or existing prior to the Closing
Date that relates to the Waukee Assets and does not constitute an Assumed Liability; (e) any
violation of any Law caused in whole or in part, or engaged in, by Seller; and (f) the successful
enforcement of the indemnification rights of Buyer pursuant to this Article 11.
11.2 Indemnification by Buyer. Buyer shall indemnify, defend and hold harmless Seller
and its agents, representatives, elected officials, board members, officers, successors and assigns
(“Seller Indemnified Parties”) from and against any Losses and Liabilities arising from or related
to: (a) the inaccuracy or breach of any representation or warranty of Buyer contained in this
Agreement; (b) any breach or failure of Buyer to perform any covenant or agreement of Buyer in
this Agreement; (c) the Assumed Liabilities; (d) all Liabilities with respect to the ownership,
operation, use or maintenance of the Waukee Assets on or after the Closing Date, except for the
Excluded Liabilities; (e) any violation of any Law caused in whole or in part, or engaged in, by
Buyer; and (f) the successful enforcement of the indemnification rights of Seller pursuant to this
Article 11.
11.3 Procedure for Third Party Indemnity Claims. In the event that any written claim or
demand for which an Indemnifying Party may be liable to any Indemnified Party hereunder is
asserted against or sought to be collected from any Indemnified Party by a third party, such
Indemnified Party shall promptly deliver a notice of such claim (including a copy of any related
written third-party demand, claim or complaint) to the Indemnifying Party. In the event of such a
claim, the Indemnifying Party shall be entitled to participate therein and, to the extent it desires, to
assume the defense thereof, and, after notice from the Indemnifying Party to the Indemnified Party
of such election to so assume the defense thereof, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal expenses of other counsel or any other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof. The Indemnified Party
shall cooperate fully with the Indemnifying Party and its counsel in the defense against any such
claim. The Indemnified Party shall have the right to participate at its own expense in the defense
of such claim. Neither the Indemnifying Party nor the Indemnified Party shall admit liability to, or
settle, compromise or discharge any such claim, without the prior consent of the other Party, which
consent shall not be unreasonably withheld or delayed.In the event the Indemnifying Party elects
not to defend such claim, the Indemnified Party shall have the right to defend against such claim
as it deems appropriate at the cost and expense of the Indemnifying Party, and the Indemnifying
Party shall have the right to participate in such defense at its own expense. No failure of the
Indemnified Party to defend a claim shall relieve the Indemnifying Party of its indemnity
obligations set forth herein.
ARTICLE 12
TERMINATION
12.1 Automatic Termination. This Agreement shall terminate following:
a.A Material Loss if Seller elects not to repair or rebuild the Waukee Assets,
as more particularly described in Section 9.5(b) above.
b.A failure to obtain Voter Approval as set forth in Section 10.1(b).
c.A failure to obtain all required approvals for the Transfer Filings as set forth
in Section 10.1(c).
12.2 Elective Termination. This Agreement may be terminated at any time prior to the
Closing:
a.By the mutual written consent of Seller and Buyer,
b.By Seller or Buyer, if: (i) any Governmental Order prohibiting the
consummation of the transactions contemplated by this Agreement shall have been issued
and made final or non-appealable; (ii) the Waukee Assets are subject to a condemnation
event as described in Section 9.5(a) and any Party elects to terminate this Agreement as
described in such section; or (iii) the Closing shall not have occurred on or before the
Closing Date due to the failure of a condition to Closing described in Article 10 above or
some other reason; provided, that the right to terminate this Agreement under this
subsection (b) shall not be available to a Party whose failure to fulfill an obligation under
this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on
or before the Closing Date.
c.By Buyer, if there has been a material violation or breach by Seller of any
covenant, representation, or warranty in this Agreement or any Ancillary Agreement and
such violation or breach: (i) is not cured by the earlier of the Closing Date or thirty (30)
days after receipt by Seller of written notice specifying particularly such violation or breach
(provided that in the event Seller is attempting in good faith to cure the violation or breach,
then the Buyer may not terminate pursuant to this provision unless the violation or breach
is not cured by the Closing Date); and (ii) has not been waived by the Buyer.
d.By Buyer, if Seller has failed to deliver all of Seller’s Required Approvals
on or before the Closing Date.
e.By Seller, if there has been a material violation or breach by Buyer of any
covenant, representation or warranty in this Agreement or any Ancillary Agreement and
such violation or breach: (i) is not cured by the earlier of the Closing Date or thirty (30)
days after receipt by Buyer of written notice specifying particularly such violation or
breach (provided that in the event Buyer is attempting to cure the violation or breach in
good faith, then Seller may not terminate pursuant to this provision unless the violation or
breach is not cured by the Closing Date); and (ii) has not been waived by Seller.
f.By Seller, if Buyer has failed to deliver all of the Buyer’s Required
Approvals on or before the Closing Date.
g.By Buyer, in accordance with Section 6.1 (Access; Investigation).
12.3 Effect of Termination. In the event this Agreement is terminated by Seller or by
Buyer pursuant to Section 12.1 or 12.2, then this Agreement shall immediately become void and
have no effect, except: (a) the Parties’ obligations under Section 9.6 (Confidential Information)
(including the obligation to return all Confidential Information), Section 9.7 (Expenses), Section
9.11 (Public Statements), Section 14.5 (Governing Law), and Section 14.6 (Waiver of Jury Trial)
shall continue following such termination; and (b) in the event this Agreement is terminated
because any Party has breached its obligations under this Agreement or any representation,
warranty or covenant set forth herein, then the Party electing to terminate this Agreement shall be
entitled to pursue, exercise and enforce any and all other remedies, rights, powers and privileges
available at law or in equity.
ARTICLE 13
SERVICE COMMITMENTS
13.1 Continuity of Service. It is the Parties intent that the transaction herein shall result
in the smooth transition of gas service to Seller’s current customers from Seller to Buyer on the
Closing Date with the least disruption in service to Seller’s current customers. To that end, Seller
and Buyer agree to cooperate reasonably and in good faith as permitted by applicable Laws to
complete all acts and filings necessary to achieve the conditions to closing set forth in Section 10.1
and to accomplish a smooth transition of service, which efforts shall include but not be limited to
all the following:
a.To facilitate the IUB's approval of the Transfer Filings described in Section
10.1, subsection “c”, Seller shall, to the extent such information is in its possession, provide
all information reasonably needed from Seller by Buyer to complete all required petitions,
applications or other submissions, including but not limited to responses to any data
requests issued during the course of the applicable IUB proceedings, for the Transfer
Filings.
b.To facilitate grant of permission from the IUB for the Seller to discontinue
and transfer utility service described in Section 10.1, subsection “c”, Seller and Buyer shall
jointly file an application for permission to discontinue service.
c.To the extent required under applicable Law, or by mutual agreement,
confidential transfer of customer record information reasonably necessary to obtain the
approval of the Transfer Filings and permission to discontinue service referenced in
Section 10.1, subsection “c”, and to facilitate the accurate enrollment of new customer
accounts by Seller’s current customers with Buyer. This shall include but not be limited to
the following customer information associated with each customer account: customer
name, name of spouse or other responsible party, business owner names and/or corporate
officers or managers, service address, mailing address, phone numbers, email addresses
and social security/tax identification number as applicable, to the extent Seller possesses
said information.
d.Communication to Seller’s existing customers, through Seller’s pre-closing
billing inserts, postings on Seller's website, or other reasonable means advising customers
of the winding down and termination of Seller’s gas service and the need to, and method
for, establishing new customer accounts with Buyer before the transition of services. All
information regarding methods for establishing new customer accounts with Buyer shall
be subject to Buyer’s approval.
e.Development of a mutual transition of services plan that reasonably
addresses coordination of actions and exchange of records and information necessary for
Seller to discontinue and Buyer to assume gas service to Seller’s customers, including but
not limited to meter audits or other activities reasonably needed to segregate and determine
Seller’s final billings to Seller’s customers and Buyer’s initial billings to said customers as
new customers of Buyer, maps and other records reasonably needed to complete mapping
integration and perform locating obligations required under Iowa Code chapter 480 upon
assumption of gas service to Seller’s customers, and maintenance schedules and other
records reasonably needed to maintain regulatory compliance upon assumption of gas
service to Seller’s customers.
13.2 Rates. Buyer affirms that Seller’s current customers will take service under the
applicable rate set forth in Buyer’s Iowa Gas Tariff as approved by the IUB, or any applicable
successor rate approved by the IUB. For the avoidance of doubt, (i)the rates which will apply to
the utility customers of the City of Waukee, Iowa, are part of a larger rate zone which is not unique
to the City of Waukee; (ii) Buyer will not apply to IUB for removal of the City of Waukee, or
utility customers within Waukee, from the existing rate zone or a reduction in the size of the rate
zone in any manner uniquely designed for Buyer to recoup the cost of its acquisition of the Waukee
Assets or the consideration paid by Buyer under this Agreement from any residents or ratepayers
of the City of Waukee; (iii) Buyer will not apply to IUB for rates unique to utility customers within
the City of Waukee unless requested by the City of Waukee; (iv) Buyer will not apply to IUB for
a rate increase uniquely based on its acquisition of the Waukee Assets or the consideration paid by
Buyer under this Agreement; and (v) customers located within the City of Waukee shall be treated
identically to similarly situated customers in the existing rate zone or any future rate zone who are
not located within the City of Waukee, such that location within the City of Waukee shall not be a
basis for distinguishing between otherwise similarly situated customers. Anything in the foregoing
notwithstanding, this subsection shall not be construed as prohibiting the removal of the City of
Waukee from the existing rate zone so long as Buyer’s application to IUB for a rate increase
applies to Buyer’s entire statewide service territory and similarly situated customers in the existing
rate zone are treated in an identical manner (including but not limited to customers located within
the City of Waukee being treated identically to similarly situated customers in the existing rate
zone who are not located within the City of Waukee, such that location within the City of Waukee
shall not be a basis for distinguishing between otherwise similarly situated customers), and, this
subsection shall not be construed as prohibiting the recovery of such costs if Buyer’s application
to IUB for a rate increase applies to Buyer’s entire statewide service territory.
ARTICLE 14
MISCELLANEOUS
14.1 Succession; Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the Parties and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any Party, by operation of law or otherwise, without the prior written consent of the
other Party, nor is this Agreement intended to confer upon any Person other than the Parties any
rights, interests, obligations or remedies hereunder. Any assignment in contravention of the
foregoing sentence shall be null and void and without legal effect.
14.2 Notices. Any notice, demand, request, or communication required or authorized by
this Agreement shall be delivered either by hand, facsimile, overnight courier or mailed by certified
mail, return receipt requested, with postage prepaid, to:
To Seller: Brad Deets
Attn: City Administrator
City of Waukee, Iowa
230 W. Hickman Road
Waukee, Iowa 50263
with copies to:
Brick Gentry P.C.
Attn: Steve Brick
6701 Westown Parkway, Suite 100
West Des Moines, IA 50266
To Buyer: MidAmerican Energy Company
Attn: Jason Lee
3500 104th St.
Urbandale, IA 50322
with copies to:
MidAmerican Energy Company
Attn: Mark D. Lowe, Senior Vice President and General Counsel
P.O. Box 657
Des Moines, IA 50306
The destination and titles of the person to be notified or the address of such person may be changed
at any time by written notice. Any such notice, demand, request, or communication shall be
deemed delivered on receipt by a Party if delivered by hand or facsimile and on deposit by the
sending party if delivered by courier or U.S. mail. Notice to persons to be copied shall not constitute
notice delivered to any Party.
14.3 Waiver. At any time prior to the Closing, any Party may: (a) extend the time for the
performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies
in the representations and warranties contained in this Agreement or in any document delivered
pursuant to this Agreement; or (c) waive compliance with any of the covenants, agreements or
conditions contained in this Agreement. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the Party to be bound thereby. The waiver by a Party
of a breach of any term or provision of the Agreement shall not be construed as a waiver of any
subsequent breach.
14.4 Survival. All representations and warranties contained in this Agreement shall
survive the execution and performance of this Agreement for the benefit of the Parties for a period
of twenty-four (24) months after the Closing Date. To the extent necessary to carry out the terms
of this Agreement, the obligations and rights arising from or related to this Agreement shall survive
the execution and performance hereof, including, without limitation, the indemnification
obligations and rights of Article 11, for a period of twenty-four (24) months after the Closing Date.
14.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the law of the State of Iowa (without giving effect to conflict of law principles) as to all matters,
including matters of validity, construction, effect, performance and remedies.
14.6 Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy or
dispute which may arise under this Agreement is likely to involve complicated and difficult issues,
and therefore each Party irrevocably and unconditionally waives any right a Party may have to a
trial by jury in respect of any litigation resulting from, arising out of or relating to this Agreement
or the transactions contemplated hereby.
14.7 Specific Performance. Each Party acknowledges and agrees that the other Party
would be damaged irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or are otherwise breached. Accordingly, each
Party agrees that the other Party shall be entitled to an injunction or injunctions to prevent breaches
of the provisions of this Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in addition to any other remedy to which it may be entitled, at law or in equity.
14.8 No Remedy Exclusive. No remedy conferred upon or reserved to the Parties under
the terms of this Agreement is intended to be exclusive and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Agreement. No delay or omission
to exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient by the enforcing Party.
14.9 Fees and Costs. In the event a Party initiates any litigation or proceeding to enforce
or protect its rights under this Agreement, the Party substantially prevailing in any such litigation
or proceeding shall be entitled, in addition to all other relief, to reasonable attorneys’ fees, out-of-
pocket costs, and disbursements relating to such litigation or proceeding.
14.10 Relationship of Parties. Nothing in this Agreement creates or is intended to create
an association, trust, partnership, joint venture or other entity or similar legal relationship among
the Parties, or impose a trust, partnership or fiduciary duty, obligation or liability on or with respect
to the Parties. Except as expressly provided herein, no Party is or shall act as or be the agent or
representative of the other Party.
14.11 Severability. If any provision of this Agreement is adjudged by any court of
competent jurisdiction to be illegal or unenforceable, such provision shall be deemed separate and
independent, and the remainder of this Agreement shall remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced,
the Parties shalt negotiate in good faith to modify this Agreement so as to effect the original intent
of the Parties as closely as possible in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
14.12 Entire Agreement; Amendment. This Agreement, together with the Ancillary
Agreements and Exhibits and Schedules, constitutes the entire agreement between the Parties
relating to the transaction described herein and supersedes all prior oral or written understandings.
No amendment, addition to, or modification of any provision hereof shall be binding upon the
Parties, and no Party shall be deemed to have waived any provision or any remedy available to it,
unless such amendment, addition, modification or waiver is in writing and signed by a duly
authorized officer of the applicable Party or Parties.
14.13 Counterparts. This Agreement may be executed in two or more counterparts and by
different parties on separate counterparts, all of which shall be considered one and the same
agreement and each of which shall be deemed an original.
ARTICLE 15
ESCROW
15.1 Escrow. The Parties agree that Seller shall be responsible for resolving the
Infrastructure Boundary Issues as defined in Schedule 7.6. If any Infrastructure Boundary Issues
remain at closing, the Parties agree Seller may use the Escrowed Amount for the costs associated
with resolving the Infrastructure Boundary Issues; however, Seller will remain responsible for all
costs associated with resolving the Infrastructure Boundary Issues regardless of the Escrowed
Amount and regardless of whether the Escrowed Amount has been exhausted. In the event Seller
defaults on its obligation to resolve the Infrastructure Boundary Issues, Buyer may use any
remaining Escrowed Amount for the costs associated with resolving the Infrastructure Boundary
Issues, but any such use of the Escrowed Amount by Buyer shall only be an offset to, and shall not
preclude, Buyer’s rights to recover costs or damages for a default under this Agreement. The
Escrowed Amount shall be distributed to the Parties (or any third parties, if applicable) pursuant
to that certain Escrow Agreement dated __________, 2025 by and among Seller, Buyer and Brick
Gentry P.C., as escrow agent (the “Escrow Agreement”), and used to pay any claims, losses and
other liabilities arising out of, resulting from, or relating to any Infrastructure Boundary Issues as
defined in Schedule 7.6.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties have caused this Asset Purchase Agreement to be
duly executed and effective as to each of them as of __________________, 2025.
SELLER: BUYER:
CITY OF WAUKEE, IOWA MIDAMERICAN ENERGY COMPANY
By: ________________________________By: ________________________________
Courtney Clarke, Mayor Name: _____________________________
Title: ______________________________
ATTEST:
By: ________________________________
Rebecca Schuett, City Clerk
Schedule 2.1 - Waukee Assets
Equipment & Vehicles - Description: Acquisition Date
2 - TIMBERLINE TR650 SQUEEZE OFF TOOL 07/06/2015
BALL VALVE 6 INCH 10/22/2014
Gas Odormeter 01/01/1991
RADIO DETECTION RECEIVER 10/08/2014
RADIODETECTION LOCATOR 01/07/2020
Squeeze Off Tool 02/07/2002
TIMBERLINE T650 SQUEEZE-OFF TOOL 12/27/2019
Waukee Assets: Real Property and Real Property Interests:
Real Property (TBS):
A tract of land out of the Southeast Quarter (SE¼) of Section 29, Township 79 North,
Range 26 West, in Dallas County, Iowa, described by metes and bounds as follows:
Beginning at a point in the west right of way line of a County Road
that is 293.5 feet North and 40 feet West of the Southeast corner of
Section Twenty-Nine (29); thence West 100 feet; thence Northern
153.2 feet to the Southwesterly right of way line of the property
owned by the City of Waukee (formerly Chicago Great Western
Railway); thence Southeasterly 127.8 feet along said Southwesterly
right of way line to the West right of way line of said County Road;
thence South 75 feet along the West right of way line of said County
Road to the point of beginning.
Note: The East line of the Southeast Quarter (SE¼) of Section Twenty-Nine (29) is
assumed to bear due North and South.
The Real Property was acquired by Seller by Quit Claim Deed filed March 7, 2024, with
the Dallas County, Iowa Recorder, as Document No. 2024-03039.
Real Property Interests
The Real Property Interests are identified as follows:
Public Utility Easements/Rights-of-Ways:The Seller will assign and/or otherwise grant to
Buyer a Utility permit for installed gas infrastructure located in city right of way and public
utility easements, as more specifically identified on Utility Permit UP25-0107 approved
February 5, 2025 attached hereto, pursuant to an approved franchise ordinace and subject
to the requirements of the right of way permitting ordinances of the City, which may be
amended from time to time.
Gas Main Easements: The City will assign to Buyer its existing interest in certain gas main
easements containing existing gas utility infrastructure, as more specifically identified
below.
Northern Natural Contracts
At closing, Seller will assign Buyer its interest in the Northern Natural Gas Company
(“Northern”) contracts listed in Schedule 3.1(d) (“Northern Contracts”). As part of Seller’s
normal operations, Seller replenishes the natural gas stored under contract number 22328
(“Storage Contract”) during the summer months to assure maximum availability of stored gas for
usage in the following heating season. At closing, in addition to the Purchase Price, Buyer will
purchase from Seller the natural gas stored pursuant to the Storage Contract at the actual
purchase cost of the natural gas paid by the Seller to its supplier at the time of injection, except
that Buyer shall not be required to pay a per dekatherm price higher than the monthly bidweek
spot gas price reported by Platts’ Inside FERC’s Gas Market Report First of Month publication
for Northern, demarc delivery (“Index Price”) applicable to the month of physical injection.
After the Effective Date, Seller shall notify Buyer of the natural gas purchase cost paid to its
supplier within 15 days after purchase price approval is granted by Seller to their agent. As
market conditions warrant, Seller may notify Buyer that its monthly purchase cost is expected to
exceed the Index Price and Buyer may, at Buyer’s sole discretion, approve and agree to pay a
cost at closing that exceeds the Index Price, or, within two business days of receiving notification
by Seller of a purchase cost that is expected to exceed the Index Price, provide a quote for
natural gas to Seller at a price Buyer will agree to pay at closing. In addition to the actual cost of
natural gas, Buyer agrees to reimburse Seller for certain charges or fees incurred on the Storage
Contract for the net injection volume from June 1, 2025 through October 31, 2025. Such
reimbursable charges shall include:
1) FDD reservation charges at Northern’s maximum tariff rate in effect for each
injection month,
2) FDD capacity charges at Northern’s maximum tariff rate in effect for each
injection month,
3) FDD injection charges for the net injection volume each month at Northern’s
tariff rate in effect for each injection month,
4) FDD storage fuel charges for the net injection volume each month at Northern’s
tariff rate in effect for each injection month,
5) FDD URR charges for the net injection volume each month at Northern’s tariff
rate in effect for each injection month.
Buyer will not reimburse Seller for other charges or fees incurred on the Storage Contract that
are in addition to the required costs to inject natural gas for winter withdrawal, such non-
reimbursable charges shall include:
1) Annual Rollover charges
2) Withdrawal charges
3) Overrun charges
4) Penalties
5) Any other charge incurred for balancing Seller’s daily or monthly natural gas
demand or any other purpose except injections to storage for winter withdrawal.
If, at closing, Seller’s stored gas volume is less than the total net injection from June 1, 2025,
through October 31, 2025, then the purchase price, including Seller’s actual purchase cost and
reimbursement for Storage Contract charges or fees, will be adjusted based on “first in, first out”
accounting treatment. In the event Northern files a Federal Energy Regulatory Commission rate
case prior to closing, and refunds are due to Northern shippers, the Parties agree to offset any
amount owed to Seller by Buyer at closing, or refund after closing, the difference between
interim rates and FERC approved maximum tariff rates.
Gas Main Easements
Parcel ID Easement Type Book Page
1229300008 Gas Line Easement 2003 17456
1229300009 Gas Line Easement 2003 17456
1229400014 Gas Line Easement 2003 17456
1232300003 Gas Main Easement 2018 23344
1232300012 Gas Main Easement 2019 1266
1220400005 Gas Main Easement 2020 33800
1501226001 Public Gas Main Easement 2024 2026
1220200008 Gas Main Easement 2023 12477
1220200010 Gas Main Easement 2023 12480
1219200006 Gas Main Easement 2023 6897
1219100002 Gas Main Easement 2023 13382
1219100005 Gas Main Easement 2023 13382
1222200002 Gas Main Easement 2021 7640
1609277006 Public Gas Main Easement
1609277003 Public Gas Main Easement
122748002 Gas Main Easement 2019 153
122748001 Gas Main Easement 2019 153
1227451002 Gas Main Easement 2019 153
1227454003 Gas Main Easement 2019 153
1227428085 Gas Main Easement 2018 17881
1235210004 Gas Main Easement
1235355001 Gas Main Easement 2022 23694
1605200053 Gas Main Easement 2021 28535
1605250002 Gas Main Easement 2021 8819
1605250003 Gas Main Easement 2021 8820
1605250004 Gas Main Easement 2021 8821
1603305010 Gas Main Easement 2022 20390
1234277002 Gas Main Easement 2024 3336
1228452003 Gas Main Easement 2021 3140
1228452002 Gas Main Easement 2021 3140
1228452004 Gas Main Easement 2021 3140
1228452005 Gas Main Easement 2021 3140
1228452006 Gas Main Easement 2021 3140
1228452007 Gas Main Easement 2021 3140
1228452008 Gas Main Easement 2021 3140
1228452009 Gas Main Easement 2021 3140
1228452010 Gas Main Easement 2021 3140
1228452011 Gas Main Easement 2021 3140
1228452013 Gas Main Easement 2021 3140
1228452014 Gas Main Easement 2021 3140
1228455016 Gas Main Easement 2021 3140
1228454016 Gas Main Easement 2021 3140
1228454017 Gas Main Easement 2021 3140
1228400032 Gas Main Easement 2021 3140
1228480003 Gas Main Easement 2021 3141
1228400040 Gas Main Easement 2021 3140
1221301077 Gas Main Easement 2022 24791
1221376022 Gas Main Easement 2021 31320
1232290104 Gas Main Easement 2022 22362
1232457055 Gas Main Easement 2024 5326
General description of Installed Gas Infrastructure
Distribution Mains
Pipe Diameter Pipe Material Total Length (ft)
2"PE 458,346
2"Steel 33,828
3"PE 13,572
3"Steel 47
4"PE 293,205
4"Steel 10,123
6"PE 74,904
6"Steel 19,373
10"PE 21,960
10"Steel 24
8"Steel 75,808
Distribution Main Valves
Valve Diameter Type Total (EA)
2"Steel 28
2"PE 159
3"PE 6
4"Steel 3
4"PE 130
6"Steel 11
6"PE 20
8"Steel 5
10"Steel 5
10"PE 5
Service Lines (avg. service line length is approximately 75 ft)
Pipe Diameter Pipe Material Total (EA)
1" or less Steel 515
1" or less PE 7,676
1" to 2"PE 168
greater than 2"PE 5
2"Steel 2
Service Line Valves
Valve Diameter Type Total (EA)
1" or less PE 26
2"PE 101
4"PE 3
Excess Flow Valves
Valve Diameter Type Total (EA)
1/2" PE 4,470
1"PE 64
2"PE 23
District Regulator Stations (State Plane Zone 1402 - Iowa South)
Station ID Northing Easting
1 588885.73 1533267.87
2 588467.02 1540266.82
3 585857.19 1547805.33
4 585689.69 1539018.84
5 588786.74 1528135.72
6 585965.63 1544088.34
7 585923.01 1544092.73
8 598352.76 1544055.74
9 575058.86 1535624.69
10 583420.55 1528147.9
Town Boarder Stations (State Plane Zone 1402 - Iowa South)
Station ID Northing Easting
1 600965.71 1522758.56
2 647912.49 1552053.896
Schedule 3.1(d)
Assumed Liabilities
Contract No. Contracted Party Contract Type Start Date End Date
1 Clayton Energy Gas Volumes; Forward Pricing; Winter Heating 11/1/2020 3/31/2025
2 Clayton Energy Gas Volumes; Forward Pricing; Winter Heating 11/1/2023 3/31/2026
3 Clayton Energy Gas Volumes; Forward Pricing; Winter Heating 11/1/2023 3/31/2028
4 Clayton Energy Gas Volumes; Forward Pricing; Winter Heating 11/1/2023 3/31/2028
5 Clayton Energy Gas Volumes; Forward Pricing; Summer Storage 6/1/2024 10/31/2024
132472 Northern Natural Gas Co. Firm Throughput Service; TFX Rate Schedule 11/1/2017 10/31/2037
131011 Northern Natural Gas Co. Firm Throughput Service; TFX Rate Schedule 4/1/2022 3/31/2027
103319 Northern Natural Gas Co. Firm Throughput Service; TFX Rate Schedule 4/1/2022 3/31/2027
113373 Northern Natural Gas Co. Firm Throughput Service; TFX Rate Schedule 11/1/2023 10/31/2027
122802 Northern Natural Gas Co. Firm Throughput Service; TF Rate Schedule 11/1/2022 10/31/2027
111748 Northern Natural Gas Co. Firm Throughput Service; TF Rate Schedule 11/1/2022 10/31/2027
21562 Northern Natural Gas Co. Firm Throughput Service; TF Rate Schedule 11/1/2022 10/31/2027
22328 Northern Natural Gas Co. Firm Deferred Delivery Service; FDD Rate Schedule 6/1/2024 5/31/2028
Schedule 4.1
Purchase Price Formula Example
Original Cost: Original Cost of all assets included in Schedule 2.1
Less: Accumulated Depreciation related to the assets included in Schedule 2.1
Equals: Net book value of the identified assets
Multiple by Premium Percent: Ten percent (10%) as stated in Article 4
Add: Net book value of assets calculated above
Equals: Purchase Price
Schedule 7.3
Seller’s Required Approvals
Approval of the voters required under Iowa Code Chapter 388 was obtained via election on March
4, 2025.
Approval by the IUB or its successor including a joint application with Buyer for discontinuation
of service pursuant to Iowa Code section 476.20.
Seller is not aware of any other declaration, filing or registration with, or notice to, or authorization,
consent or approval of, any Governmental Authority or Person is necessary for the execution and
delivery of this Agreement or the Ancillary Agreements by Seller or the consummation by Seller
of the transactions contemplated under this Agreement. However, Seller will cooperate in securing
any other necessary approvals.
Schedule 7.6
Exceptions to Title (Waukee Assets)
Real Property
With respect to the Real Property owned by Seller in fee as identified on Schedule 2.1, the
Real Property was acquired by Seller pursuant to a Quit Claim Deed filed March 7, 2024 with the
Dallas County, Iowa Recorder, as Document No. 2024-03039. The Real Property shall be
transferred to Buyer in its “as is” “where is” condition, and Seller makes no warranty or
representation of any kind, oral or written, express or implied, regarding the title, condition,
merchantability or fitness for a particular purpose, or environmental condition of the Real Property
(and the Quit Claim Deed transferring the Real Property from Seller to Buyer will include such
similar language). From and after the date of Closing, Seller shall have no responsbility or liability
for the Real Property whatsoever, whether arising before or after the date of Closing.
Real Property Interests
With respect to the Real Property Interests owned by Seller as identified on Schedule 2.1,
the Real Property Interests shall be transferred to Buyer in their “as is” “where is” condition, and
Seller makes no warranty or representation of any kind, oral or written, express or implied,
regarding the title, condition, merchantability or fitness for a particular purpose, or environmental
condition of the Real Property Interests. From and after the date of Closing, Seller shall have no
responsibility or liability for the Real Property Interests.
Real Estate with Infrastructure Boundary Issues
Attached hereto as Exhibit 1 are parcels of real estate that contain gas utility infrastructure
owned by Seller that are located outside of Seller’s existing: (a) rights-of-way, (b) right-of-way
permits, (c) gas main easements, (d) access permits or (e) leases pertaining to the existing gas
utility infrastructure owned by Seller prior to Closing (the “Infrastructure Boundary Issues”).
Seller shall work diligently between the Effective Date and Closing to resolve the Infrastructure
Boundary Issues. Any Infrastructure Boundary Issues not resolved prior to Closing shall be
resolved by Seller in accordance with the provisions of Article 15 of the Agreement and the Escrow
Agreement.
Exhibit 1 (to Schedule 7.6)
Infrastructure Boundary Issues
[Please see attached.]
A B C
1 Parcel ID Parcel Owner Address
2 1229300008 Dallas County
3 1229300009 Dallas County
4 1229400014 Dallas County
5 1229326001 Redwood Waukee Hickman Road IA P1,LLC 350 NW 17th Street
6 1229327001 Redwood Waukee Hickman Road IA P1,LLC 355 NW 17th Street
7 1232300003 Marco Properties,LLC
8 1232300012 Prairie Village of Iowa, LLC
9 1221200005 BRCKA,DAVID JOHN &RITA ANNE JTRS 1800 N WARRIOR LANE
10 1221200007 DG ENDEAVORS, LLC 1700 N WARRIOR LN
11 1221200008 MILLER, HENRY & REBECCA JTRS 2761 V AVE
12 1221476004 BORMANN, JOHN A & GAIL A JTRS 1150 N WARRIOR LN
13 1221476003 BORMANN, JOHN A & GAIL A JTRS 1000 N WARRIOR LN
14 1221477003 DEANDA, MIGUEL F & BLAZANIN, JANET I JTRS 600 NW LITTLE WALNUT CREEK DR
15 1228226041 City of Waukee PRAIRIE ROSE PLAT 6 OUTLOT Z /EX PRAIRIE ROSE PLAT 2/
16 1229400013 SANEMAH ENTERPRISES INC 945 MEADOWBROOK AVE
17 1228300042 D & L ESTATES LLC 545 W HICKMAN RD
18 1228300040 BRODERICK, MICHAEL J REVOCABLE TRUST U/A/D 01/14/2021
19 1228300027 BRODERICK, JOHN E 10 NW 4TH ST
20 1228400011 BRODERICK,TIMOTHY P LIVING TRUST BRODERICK,TIMOTHY P TRUSTEE 395 W HICKMAN RD
21 1233126001 RJW, LLC 45 6TH ST
22 1233126026 MANIELLE DEVELOPMENT,LC 500 HICKMAN RD
23 1233126004 BRELSFORD PROPERTIES LLC 440 W HICKMAN RD
24 1233128002 500-530 LAUREL ST, LLC 530 LAUREL ST
25 1233128004 WESTSIDE PROPERTIES, LLC 240 5TH ST
26 1233128005 WESTSIDE PROPERTIES, LLC 240 5TH ST
27 1233201034 WAUKEE LIBERTY PARK MALL LLC 264 W HICKMAN RD
28 1233201010 LEMAR, ALEXANDER JORDAN 385 LAUREL ST
29 1233201032 WAUKEE LIBERTY PARK MALL LLC 264 W HICKMAN RD
30 1233207000 WAUKEE PROFESSIONAL PLAZA II
WAUKEE PROFESSIONAL PLAZA II ASSOC PLAT SEE BK 2004 PG 17312
31 1233205031 GARDNER, PAMELA S & ERIC JTRS 165 ASHLAND CT
32 1233205030 SHORE, JORDAN 155 ASHLAND CT
33 1228300005 CRJS PROPERTIES, LLC 125 NW 10TH ST
34 1232282021 SPRING CREST TOWNHOMES I, LLC
35 1233160005 JENSEN,DANIEL &KRISTINE LIVING TRUST U/A 06/26/2023 625 7TH ST
36 1233401001 HILGENBERG, DALE E & CAROL J JTRS 325 NORTHVIEW DR
37 1233255033 PARK, SCOTT A 715 2ND ST
38 1233278001 HEARTLAND COOP
39 1233278003 STULL, CHARLES H TRUST STULL, CHARLES H TRUSTEE 90 ASHWORTH DR
40 1233431016 STACY, CHERYL ANN 25 BEL AIRE DR
41 1233431017 MCCLURE, MATHEW T 15 BEL AIRE DR
42 1233453011 PAYAN, GUMARO & RUTH JTRS 1090 2ND ST CT
43 1234300003 WAUKEE COMMUNITY SCHOOL DISTRICT F
44 1604101000 SE FLORENCE DR PARKVIEW COMMONS
45 1604108000 EMERALD POINTE CONDOMINIUM ASSOCIATION, INC EMERALD POINT CONDOS
46 1604103000 BRIGHTON PARK CONDO BRIGHTON PARK CONDO
47 1604107026 GERALD D GRUBB INC Rosenkranz Dr to 3106 V AVE
48 1604110004 GERALD D GRUBB INC LA Grant to 505 SE PLEASANTVIEW DR
49 1604129002 JERRY'S HOMES INC 805 SE PLEASANTVIEW DR to 1755 SE WATERS EDGE DR
50 1605285016 HALE DEVELOPMENT CO LLC HALE DEVELOPMENT CO LLC
51 1605284025 HALE DEVELOPMENT CO LLC HALE DEVELOPMENT CO LLC
52 1604335001 THE ESTATES OF WAUKEE, A VINTAGE COOPERATIVE COMMUNITY 700 SE ESKER RIDGE DR
53 1604361093 LAUNCH TOWNHOMES AT KETTLESTONE OWNERS ASSOCIATION LAUNCH TOWNHOMES AT KETTLESTONE OUTLOT Z
54 1608226004 CARLSON, KENNETH ETAL Hunter Hollow DR
55 1605451007 FOUR SEASONS PROPERTIES, INC Ashworth south of campgrounds
56 1605451006
CHRISTENSEN, RICHARD K II REVOCABLE TRUST 1/2INT CHRISTENSEN,
DEBORAH K REVOCABLE TRUST 1/2INT North of 3176 ASHWORTH RD
57 1605378009 DALLAS COUNTY, IOWA PT TANGLEWOODS ACRES PLAT 2 LOT A (ASHWORTH ROW)
58 1605378008 DALLAS COUNTY, IOWA PT TANGLEWOODS ACRES PLAT 2 LOT A (UTE ROW)
59 1608100023 DAVIS, CORAL D REVOCABLE TRUST 31168 ASHWORTH RD
60 1608100024 PIERSON,KIMBERLY A &DAMON JTRS 32047 UTE AVE
61 1608300015 ANDERSON FOUR, LLC PARCEL 17-5 SW SW LYG N OF I-80 - west of Kum and GO
62 1608176006 FINNEGAN, STEVEN LIVING TRUST U/A 10/04/2023 345 ARROWHEAD DR
63 1608178001 GRAFF, ALAN H JR & TARA M JTRS 375 ARROWHEAD DR
64 1609200010 AP GPP, LC North of se kettlestone blvd,west of GPP
65 1609200002 DESERET TRUST COMPANY AS TRUSTEE OF TRUST NUMBER 02-50899 Across the road east of 1150 SE ASHWORTH RD
66 1234100015 Trailer Park 250 SE LAUREL STREET
67 1234126003 WAUKEE LAND, LLC 400 E HICKMAN RD
68 1234126004 BLOUNT REAL ESTATE PARTNERSHIP, LC 450 E HICKMAN RD
69 1234202001 WESTGATE TOWNHOMES ASSOCIATION WESTGATE TOWNHOMES LOT A
70 1234226005 HURD WAUKEE LLC 1030 E HICKMAN RD
71 1234229002 HURD WAUKEE LLC 150 SE ALICES RD
72 1227477003 JOHNSON DEVELOPMENT LC 855 E HICKMAN RD
73 1227451002 WEBSTER CITY MHC, LC 651 NE VENTURE DR
74 1227228075 VILLAGE AT SHADOW CREEK PLAT 1 TOWNHOMES ASSOC VILLAGE AT SHADOW CREEK PLAT 1 OUTLOT Z
75 1227227016 SHADOW CREEK II, LLC 820 NE ALICES RD
76 1227227015 CASEY'S MARKETING COMPANY 870 NE ALICES RD
77 1227207000 SOMERSET OAKS APARTMENTS SOMERSET OAKS APARTMENTS BLDGS 1- 19 & UNITS 1-100
78 1227328022 BROOKRIDGE TOWNHOMES PLAT 1 OWNERS ASSOCIATION BROOKRIDGE TOWNHOMES PLAT 1 OUTLOT Z (COMMON AREA)
79 1228207004 PRAIRIE ROSE PLAT 2 STREET LOTS A & B Warrior and Douglas Intersection
80 1234411025 WILLOW BROOK TOWNHOMES ASSOCIATION WILLOW BROOK PLAT 1 LOT Y
81 1234405070 WILLOW BROOK TOWNHOMES ASSOCIATION WILLOW BROOK PLAT 1 LOT Y
82 1235210007 CITY OF WAUKEE LEGACY POINTE AT WAUKEE PLAT 1 LOTS A & D
83 1235100001 AMERCO REAL ESTATE COMPANY 1100 E HICKMAN RD
84 1235100009 STIVERS IOWA REAL ESTATE LLC 1450 E HICKMAN RD
85 1235210004 ATERRA 20, 1535 SE GOLDEN HARVEST DR WAUKEE, LLC 1535 SE GOLDEN HARVEST DR
86 1235210001 ATERRA 20, 1535 SE GOLDEN HARVEST DR WAUKEE, LLC 1535 SE BLACKTHORNE DR
87 1235210020 LONG DIRT INVESTMENTS, LLC East of 1535 SE BLACKTHORNE DR
88 1235210027 FARMER, FRED & JOYCE REVOCABLE TRUST 8/20/2019 1599 SE BLACKTHORNE DR
89 1235210026 JORGENSEN, GENO C 1593 SE BLACKTHORNE DR
90 1235210025 SWEARINGEN, VICKI L LIVING TRUST 1589 SE BLACKTHORNE DR
91 1235210024 BROWN, PATRICIA ANNETTE & LASTUVKA, CAROL ELISE JTRS 1583 SE BLACKTHORNE DR
92 1235210023 COONEY, NICOLE M & THOMAS JTRS 1579 SE BLACKTHORNE DR
93 1235210022 VON HARZ, JOHN THOMAS III & KELI JTRS 1573 SE BLACKTHORNE DR
94 1235210021 CAFFREY, COLLIN D 1569 SE BLACKTHORNE DR
95 1235210029 LEGACY POINTE VILLA OWNERS ASSOCIATION, INC West of 1569 SE BLACKTHORNE DR
96 1235210030 MALLARI, ANITA 1572 SE BLACKTHORNE DR
97 1235210031 SPRINGER, GARY & CONNIE JTRS 1578 SE BLACKTHORNE DR
98 1235210032 PALMER, JODY L & RONALD A JTRS 1582 SE BLACKTHORNE DR
99 1235210033 MOLYNEUX, SHANE AARON 1588 SE BLACKTHORNE DR
100 1235210034 HUNTINGTON, GLEN D TRUST 7/30/2007 1592 SE BLACKTHORNE DR
101 1235210035 ECKSTAEDT, THOMAS LIVING TRUST U/A 12/02/2020 1598 SE BLACKTHORNE DR
102 1235426009 J K PARTNERS North of 1775 SE HAWTHORNE RIDGE DR
103 1235428017 MARDIS, LAURIE L REVOCABLE TRUST 07/23/2021 1775 SE HAWTHORNE RIDGE DR
104 1235430002 J K PARTNERS HAWTHORNE RIDGE PLAT 2 LOT B
105 1235430003 J & K PARTNERS & STEPHEN R GRUBB HAWTHORNE RIDGE PLAT 1 LOTS A, B, C, & D /EX LOT E/
106 1235478021 J K PARTNERS AMENDED HAWTHORNE RIDGE PLAT 3 LOT B (STREET)
107 1604226002 WAUKEE INVESTMENTS I LLC 1190 SE UNIVERSITY AVE
108 1604226003 WAUKEE INVESTMENTS I LLC 1200 SE UNIVERSITY AVE
109 1235353000 WINHALL AT WILLIAMS POINTE LLC WINHALL AT WILLIAMS POINTE CONDOS SEE BK 2012 PG 23676
110 1235304000 WILLIAMS POINTE CONDOMINIUMS WILLIAMS POINTE CONDOS SEE BK 2005 PG 6440
111 1235355001 MDC COAST 22, LLC 945 SE ALICES RD
112 1235354003 KOENIG PROPERTIES, LLC 1175 SE UNIVERSITY AVE
113 1235354006 TSG PROPERTIES UNIVERSITY, LLC 1165 SE UNIVERSITY AVE
114 1236401007 SOUTHFORK HOMEOWNERS ASSOCIATION INC Road on dam east side
115 1603305010 MAPLE GROVE PLACE LLC MAPLE GROVE PLACE LLC
116 1604481002 KTL VENUE, LLC 2832 GRAND PRAIRIE PARKWAY
117 1604483006 THE QUARTER AT WAUKEE, LLC 2898 GRAND PRAIRIE PKWY
118 1604481004 WAUKEE HOTEL, LLC 2848 GRAND PRAIRIE PARKWAY
119 1604480009 KTL VENUE, LLC 2938 GRAND PRAIRIE PKWY
120 1603501003 Waco Railroad crossing North of 3069 WACO PL
121 1236301002 WAUKEE COMMUNITY SCHOOL DISTRICT 605 SE BOONE DR
122 1604107025 GERALD D GRUBB INC South of 505 SE PRAIRIE CREEK DR
123 1229100006 DALLAS COUNTY, IOWA North of 255 NW SUNRISE DR
124 1229300004 WAUKEE T AVENUE, LLC Hickman and T ave NE Corner
125 1223100010 CITY OF CLIVE West of 4460 NW 169TH ST
126 1234278002 MLY REAL ESTATE, LLC 440 SE ALICES RD
127 1234277002 WAUKEE TOWNE CENTER, LLC 1050 SE LAUREL ST
128 1221301077 COURTYARDS AT PARKSIDE ASSOCIATION
COURTYARDS AT PARKSIDE PLAT 2 OUTLOT Z
129 1221376022 COURTYARDS AT PARKSIDE ASSOCIATION COURTYARDS AT PARKSIDE PLAT 1 OUTLOT Z
130 1604301005 DALLAS COUNTY, IOWA West of 2900 SE LA GRANT PARKWAY
131 1234215017 WESTGATE PARTNERSHIP West of 175 SE DOGWOOD LN
132 1234215017 WESTGATE PARTNERSHIP West of 175 SE PEACHTREE DR
133 1604226003 WAUKEE INVESTMENTS I LLC 1200 SE UNIVERSITY AVE
134 1604226002 WAUKEE INVESTMENTS I LLC 1190 SE UNIVERSITY AVE
135 1604226001 WAUKEE INVESTMENTS I LLC 1180 SE UNIVERSITY AVE
136 1232290104 SPRINGCREST TOWNHOMES WAUKEE 2, LLC SPRING CREST TOWNHOMES PLAT 3 OUTLOT X
137 1232457055 PRAIRIE VILLAGE OF IOWA, LLC North of University between 11th and 17th st
138 1233351003 City of Waukee 805 UNIVERSITY Ave
139 1233376004 City of Waukee Cemetery
140 1605100001 City of Waukee South of Cemetery
141 1605100020 City of Waukee 1505 6TH ST
142 1229200009 City of Waukee North of 600 NW 10th St
143 1228126001 City of Waukee 700 NW 10TH ST Triumph
144 1229100008 City of Waukee 815 NW 20TH ST
145 1233201030 City of Waukee 230 W HICKMAN RD
146 1233207000 City of Waukee South of 230 W HICKMAN RD
147 1233431018 City of Waukee CORENE ACRES PLAT 1 LOT 51
148 1233432009 City of Waukee 10 BEL AIRE DR
149 1234300004 City of Waukee 1255 S WARRIOR LANE
150 1604401008 City of Waukee Tallgrass and GPP Pond
151 1235402015 City of Waukee 655 SE LEGACY POINTE BLVD
152 1235210007 City of Waukee North of 655 SE Legacy Pointe
153 1229400018 City of Waukee NW Corner of Hickman & 10th
154 1229400016 City of Waukee Bike trail nw of 10th
155 1228300037 City of Waukee Bike Trail 10th and Hickman
156 1233100002 City of Waukee Bike Trail west of 6th St
157 1234300007 City of Waukee Warrior and Ashworth
158 1235305001 City of Waukee DRS 6&7 on SE Alices north of Olson
Schedule 7.9
Permits
City of Waukee Right of Way permits for infrastructure located within City Right of Way and
Public Utility Easements held by the City, will be issued to the City prior to closing. These Permits
will be assigned to buyer at closing.
The City is not transferring or selling its Automated Meter Infrastructure (“AMI”) or Automated
Meter Reading (“AMR”) and such assets are specifically excluded from this sale. Buyer will need
to determine its needs relative to Automated Meter Reading infrastructure and secure the necessary
permits, property interest and leases for its gas meter reading undertakings.
The following additional permits are applicable to the Waukee Assets:
Permit Name Permit Number Issuer
Utility Permit 2601-09 Dallas Country Road Department
Pipeline Permit 1247 Iowa Utilities Board
Schedule 7.11
Waukee Assets – Scheduled Upgrades
None
Schedule 7.16
Customer Base
The Customer base is always being updated. The Owner or tenant of every residential, commercial,
educational and industrial building that obtains gas service within the City Limits of the City of
Waukee is a customer either completely or utilizing gas system for transportation services. New
buildings are being built continually and the owners/tenants of those buildings that obtain gas
service become new customers. A customer list reflecting the customer base at closing will be
provided.
Schedule 8.3
Buyer’s Required Approvals
Approval by the IUB or its successor including: 1) a joint application with Seller for
discontinuation of service pursuant to Iowa Code section 476.20 and 2) Buyer’s application for
reorganization pursuant to Iowa Code section 476.77.
Exhibit A
Form of Bill of Sale Follows
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,the City of Waukee, County of Dallas, State of Iowa, an Iowa municipality
(“Seller”), hereby sells, assigns, conveys, and transfers to __________________, a/an
_________________ (“Buyer”), all of its right, title and interest in and to the Waukee Assets as
defined in the Asset Purchase Agreement dated as of ______________, 2025, by and between
Seller and Buyer (“Asset Purchase Agreement”).
EXCEPT AS SET FORTH IN THE ASSET PURCHASE AGREEMENT, SELLER
HEREBY SELLS, TRANSFERS AND ASSIGNS THE PURCHASED ASSETS IN "AS IS"
CONDITION. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
ANY PARTICULAR PURPOSE IN REGARD TO THE PURCHASED ASSETS ARE HEREBY
EXCLUDED. THERE ARE NO WARRANTIES OF FITNESS WHICH EXTEND BEYOND
THE DESCRIPTION ON THE FACE HEREOF.
Words and phrases herein, including acknowledgment hereof, shall be construed as in the
singular or plural number, and as the appropriate gender, according to the context.
[Remainder of Page Left Intentionally Blank; Signature Page Follows]
IN WITNESS WHEREOF, Seller has duly executed this Bill of Sale as of ____________, 2025.
SELLER: BUYER:
CITY OF WAUKEE, IOWA
[BUYER NAME]
By: ________________________________By: ________________________________
Courtney Clarke, Mayor Name: _____________________________
Title: ______________________________
ATTEST:
By: ________________________________
Brad Deets, City Administrator
Exhibit B
Form of Assignment and Assumption Agreement Follows
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”), dated
______________, 2025 (“Effective Date”), is entered into by and between the City of Waukee,
County of Dallas, State of Iowa, an Iowa municipality (“Seller”), and __________________, a/an
_________________ (“Buyer”).
RECITALS
A. Seller and Buyer are parties to an Asset Purchase Agreement dated ____________,
2025 (the “Purchase Agreement”), pursuant to which Seller agreed to sell to Buyer, and Buyer
agreed to purchase from Seller, all of Seller’s right, tittle and interest in and to certain assets,
properties and rights as further described in Section 2.1 of the Purchase Agreement (the “Waukee
Assets,” as more particularly described in the Purchase Agreement). Capitalized terms used but
not defined herein have the meanings given to them in the Purchase Agreement.
B. Pursuant to the terms of the Purchase Agreement, Seller has agreed to transfer and
assign to Buyer, and Buyer has agreed to accept and assume from Seller, certain rights and
liabilities of Seller associated with the Waukee Assets, subject to the terms and conditions of the
Purchase Agreement.
AGREEMENT
In consideration of the recitals and the mutual promises, representations, warranties,
covenants and agreements herein contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignment. Effective as of 12:01 a.m. prevailing Central Time on the Closing
Date, Seller hereby assigns, sells, transfers and sets over to Buyer, and Buyer accepts from Seller,
all of Seller’s right, title, benefits, privileges and interest in and to all of the Waukee Assets as
described in Section 2.1 of the Purchase Agreement. Seller does not assign, sell, transfer or set
over to Buyer, and Buyer does not accept from Seller, any of the Excluded Assets described in
Section 2.2 of the Purchase Agreement.
2. Assumption. Effective as of 12:01 a.m. prevailing Central Time on the Closing
Date, Seller hereby assigns, sells, transfers and sets over to Buyer, and Buyer accepts and assumes
from Seller, all of Seller’s burdens, obligations and liabilities arising under the Assumed Liabilities
described in Section 3.1 of the Purchase Agreement. Seller does not assign, transfer or set over to
Buyer, and Buyer does not accept or assume from Seller, any of the Excluded Liabilities described
in Section 3.2 of the Purchase Agreement, all of which remain the sole responsibility of Seller.
3. Purchase Agreement Controls. This Agreement is made pursuant to the Purchase
Agreement and is subject to all of the agreements, terms and conditions contained therein, all of
which are incorporated herein by this reference. The Parties acknowledge and agree that the
representations, warranties, covenants, agreements and indemnities contained in the Purchase
Agreement are not superseded hereby but remain in full force and effect to the full extent provided
therein. In the event of any conflict or inconsistency between the terms of the Purchase Agreement
and the terms of this Agreement, the terms of the Purchase Agreement shall govern. Nothing in
this Agreement, express or implied, is intended or shall be construed to expand or defeat, impair
or limit in any way the rights, obligations, claims or remedies of the Parties as set forth in the
Purchase Agreement.
4. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and nothing herein, express or implied, shall give or be construed to give any person or
entity, other than the parties hereto, any legal or equitable rights hereunder.
5. Severability. If any provision of this Agreement is held invalid, unenforceable or
void, the remainder of the Agreement shall not be affected thereby and shall continue in full force
and effect.
6. Amendment. No amendment, modification, termination, waiver, cancellation or
replacement of this Agreement shall be valid unless made in writing signed by the parties hereto.
7. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and shall be enforceable by the parties hereto, their respective heirs, successors and permitted
assigns.
8. Waiver. Failure of either party for any reason to insist upon compliance by the
other party with any provision in this Agreement shall not be construed as or constitute a waiver
thereof and shall in no manner affect their right at a later time to enforce the same.
9. Governing Law. This Agreement shall be construed under the laws of the State of
Iowa, without giving effect to any choice or conflict of law provision or rule.
10. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall be deemed to be one and the
same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an original
signed copy of this Agreement.
[Remainder of page intentionally blank; Signature page follows]
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date (as
defined herein).
SELLER: BUYER:
CITY OF WAUKEE, IOWA
[BUYER NAME]
By: ________________________________By: ________________________________
Courtney Clarke, Mayor Name: _____________________________
Title: ______________________________
ATTEST:
By: ________________________________
Brad Deets, City Administrator
Exhibit C
Form of Easement Assignment Follows
ASSIGNMENT
This ASSIGNMENT (“Assignment”) is made by and between the City of Waukee, County
of Dallas, State of Iowa, an Iowa municipality (“Assignor”), and __________________, a/an
________________________ (“Assignee”).
Pursuant to the Asset Purchase Agreement by and between Assignor and Assignee dated as
of _________________________, 2025 (the “Asset Purchase Agreement”), Assignor hereby
assigns to Assignee all of Assignor’s right, title and interest in and to the gas main easements, Utility
permit(s) and other permit(s) identified in Schedule 2.1 of the Asset Purchase Agreement and
identified on Exhibit A attached hereto and incorporated herein by reference (collectively,the
“Easements”).
Subject to any limitations contained herein or in the Easements, this Assignment, and the
rights,obligations and interests assigned hereby, shall be perpetual and shall run with the lands
described within the Easements, and shall be binding upon and inure to the benefit of Assignor and
Assignee and any parent company or affiliate of Assignor or Assignee, and each and all of their
respective successors and assigns. This Assignment shall be construed in accordance with the Law
of the State of Iowa.
Assignee hereby accepts this assignment of Easements and agrees to be bound by the terms
and conditions of said Easements and agrees to assume all obligations and responsibilities of
Assignor pursuant to such Easements on the date hereof.
This Assignment is being executed and delivered pursuant to the Asset Purchase Agreement
and is subject to the terms, conditions and limitations thereof.
This Assignment may be executed in one or more counterparts, all of which when taken
together,shall constitute one and the same instrument. This Assignment is made, executed and
delivered pursuant to the above-referenced Asset Purchase Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be
effective as of the __________ day of ______________, 2025.
ASSIGNOR: ASSIGNEE:
CITY OF WAUKEE, IOWA
[NAME]
By: ________________________________By: ________________________________
Courtney Clarke, Mayor Name: _____________________________
Title: ______________________________
ATTEST:
By: ________________________________
Brad Deets, City Administrator
STATE OF IOWA; COUNTY OF DALLAS
This instrument was acknowledged before me on ______________________________,
2025, by Courtney Clarke as Mayor of the City of Waukee, Iowa.
____________________________________
Notary Public in and for the State of Iowa
STATE OF IOWA; COUNTY OF DALLAS
This instrument was acknowledged before me on ______________________________,
2025, by Brad Deets as City Administrator of the City of Waukee, Iowa.
____________________________________
Notary Public in and for the State of Iowa
STATE OF IOWA; COUNTY OF _______________
This instrument was acknowledged before me on ______________________________,
2025, by ___________________ as ___________________ of _________________________.
____________________________________
Notary Public in and for the State of Iowa
Attachment A to Assignment
List of Gas Easements and Utility Permits
Exhibit D
Form of Franchise Follows
ORDINANCE NO. ________
AN ORDINANCE GRANTING TO MIDAMERICAN ENERGY COMPANY, ITS
SUCCESSORS AND ASSIGNS, THE RIGHT AND FRANCHISE TO ACQUIRE,
CONSTRUCT, ERECT, MAINTAIN AND OPERATE IN THE CITY OF WAUKEE,
IOWA AN NATURAL GAS SYSTEM AND FACILITIES AND TO FURNISH AND SELL
NATURAL GAS TO THE CITY AND ITS INHABITANTS FOR A PERIOD OF 25
YEARS.
BE IT ORDAINED by the City Council of the City of Waukee, Iowa:
Section 1. There is hereby granted to MidAmerican Energy Company, an Iowa
corporation, and to its successors and assigns, hereinafter called “Company”, the right and
franchise to acquire, construct, erect, maintain and operate in the City of Waukee, Iowa, hereinafter
called the “City,” a system for the transmission and distribution of natural gas along, under and
upon the streets, avenues, alleys and public places to serve customers within the City, and to
furnish and sell natural gas to the City and its inhabitants. This franchise shall be effective for a
twenty-five (25) year period from and after the effective date of this ordinance, provided however,
the City may reevaluate the franchise ordinance every five years, commencing with the 10th year,
by providing Company written notice at least 120 days prior to 10, 15, and 20th anniversaries of
the ordinance. If such a request to re-evaluate or amend the ordinance is made by the City and the
parties are unable to agree to amend the ordinance within 90 days or by a mutually agreed upon
date, then the City may elect to terminate or continue this franchise upon the expiration of the re-
evaluation period. If the City does not seek such re-evaluation by means of a written notice to the
Company at least 120 days prior to the expiration of year 10, 15, or 20th anniversaries, as provided
herein, this franchise will continue without change.
Section 2. The rights and privileges hereby granted are subject to the restrictions and
limitations of Chapter 364 of the Code of Iowa 2023.
Section 3.The Company shall furnish reasonable, adequate and efficient natural gas
service to the residents of the City and shall maintain its systems in reasonable repair and working
order and provide adequate facilities for such maintenance. The Company’s equipment, including
all distribution facilities, shall be installed in accordance with good engineering practices and shall
be located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and
operated in accordance with the rules and regulations of the Iowa Utilities Board, Commission, or
its successor, and any other governmental regulatory body with jurisdiction, so as not to endanger
or interfere with the lives of persons, or to unnecessarily hinder or obstruct pedestrian or vehicular
traffic to public ways, places and structures. The erection, installation, construction, replacement,
removal, repair, maintenance, and operation of the natural gas system shall be in accordance with
all applicable laws, regulations and codes of the State and all applicable ordinances, regulations
and codes of the City.
Section 4. The Company shall have the right to erect, install and maintain all necessary
distribution facilities, gas mains, service lines, pipes and equipment for the distribution of natural
gas in, on, over or under any public right of way, easement, street or alley in the City, but all said
equipment and facilities shall be placed as not to interfere with the construction of any water pipes,
drains or sewers, or the flow of water therefrom, or streets, sidewalks or other public infrastructure
which have been or may hereafter be located by authority of the City, and further providing the
same shall be placed in accordance with this franchise and any regulations the City may from time
to time adopt or amend regarding the placement of facilities or structures of utilities, and other
right-of-way users facilities or structures, in the right-of-way.
Section 5. This franchise shall not be exclusive and shall not restrict in any manner the
right of the City Council or any other governing body of the City, in the exercise of any regulatory
power which it may now have, or hereafter be authorized or permitted, by the laws of the State of
Iowa.
Section 6. Annually, and more frequently if necessary at the request of either party, the
City and the Company shall meet to review and plan for the next 12 months of infrastructure
construction, replacement, enhancements or maintenance within the City. Where possible,
following the procedures and standards applicable to the growth and development of the City, the
parties will develop plans to facilitate the placing of gas facilities in conjunction with City projects
in the public right of ways.
Section 7. The Company shall, at its cost and expense, locate and relocate its installations
in, on, over or under any public right of way, easement, street or alley in the City as the City may
at any time reasonably require for the purposes of facilitating the expansion, construction,
reconstruction, maintenance or repair of a street, road or alley, or any other public improvement.
The Company shall not be required to relocate its facilities at Company expense if said relocation
is for the sole benefit of a non-government entity if the City has not required the public
improvement to be performed or installed by said non-governmental entity. The relocation
required hereunder shall be completed by the Company no later than ninety (90) days following
written notice by the City to the Company of the construction start date for any such expansion,
construction, reconstruction, maintenance or repair of a street, road or alley, or any other public
improvement.
The City may prohibit Company’s expansion of use of the right-of-way if there is
insufficient space to accommodate the expanded use and the City has provided a reasonable
alternative location to the Company.
Section 8. In making excavations in any streets, avenues, alleys and public places for
the excavation of conduits or the for the installation, maintenance or repair of gas pipes, conduits,
or apparatus, the Company shall not unreasonably obstruct the use of the streets, and shall replace
the surface, restoring the original condition as nearly as practicable and provided such other
requirements imposed by the City’s ordinances or regulations existing now or in the future.
Section 9. Upon reasonable request the Company shall provide the City, on a project
specific basis, information indicating the horizontal location, relative to boundaries of the right of
way, of all equipment which it owns or over which it has control that is located in City right of
way, including documents, maps and other information in paper or electronic or other forms
(“Information”).
At the request of the Company, any information requested with respect to the location or
type of equipment which the Company maintains or plans to install in the right-of-way, which
qualifies as trade-secret Information under Iowa Code Section 550.1 et seq., shall be treated as a
trade-secret Information in accordance with Iowa Code Section 22.1 et seq., pertaining to
examination of public records, or which qualifies to be kept confidential under any provision of
Iowa Code Section 22.1 et seq. The Company and City recognize that some or all of the
Information provided may, under current Iowa law, constitute public records, but that nonetheless,
some Information provided may be considered to be confidential under state or federal law or both.
Therefore, the City shall not release any Information with respect to the facilities which the
Company owns or controls in the right of way which may constitute a trade secret or which may
otherwise be protected from public disclosure by state or federal law. The City shall provide the
Company written notice of a request to release Information to allow the Company to determine if
the Information sought is confidential. The Company shall respond to the City within 10 business
days of receiving the City’s written notice request. If requested by the Company, the City shall not
release any such data except by court order, provided, however, the City reserves the right to
disagree with the Company determination that the information is confidential, in which case the
Company shall be given notice in order that the Company may seek injunctive relief. In the event
the City agrees the information is confidential, or that a court determination is required to
determine if the Information is confidential, the City shall defend or bring necessary court actions,
provided, however, that in the event the City refuses to release records, or the City itself brings an
action to determine if records are confidential, the City may tender the defense or prosecution of
such legal actions to the Company and the Company shall accept such tender.
Section 10. This ordinance is intended to be and shall be construed as consistent with the
reservation of local authority contained in the Twenty Fifth Amendment to the Iowa Constitution
granting municipalities home rule powers. To such end any limitation on the power of the City is
to be strictly construed and the City reserves to itself the right to exercise all power and authority
to regulate and control its local affairs, and all ordinances and regulations of the City shall be
enforceable against the Company.
Section 11. The Company shall indemnify and save harmless the City from any and all
claims, suits, losses, damages, costs or expenses, on account of injury or damage to any person or
property, caused or occasioned in whole or in part, by the Company’s negligence in construction,
reconstruction, excavation, operation or maintenance of the gas facilities authorized by this
franchise; provided, however, that the Company shall not be obligated to defend, indemnify and
save harmless the City for any costs or damages arising from the negligence of the City, its officers,
employees or agents.
Section 12. The Company shall construct, operate and maintain its facilities in accordance
with the applicable regulations of the Iowa Utilities Board or its successors, and any and all other
applicable Federal, State and Local laws or regulations.
Section 13. During the term of this franchise, the Company shall furnish natural gas in the
quantity and quality consistent with applicable Iowa laws and regulations.
Section 14. In consideration of the right to construct and maintain such gas facilities and
equipment along, upon, across and under the streets, highways, avenues, alleys, bridges and public
places of the City the City reserves the right to impose upon the Company and, by its acceptance
of this franchise, it agrees that there shall be collected from Company's customers within the
corporate limits of the City and remitted by the Company to the City, a franchise fee in an amount
equal to a percentage of the gross receipts derived by the Company from the transmission or
distribution of natural gas to customers within the corporate limits of the City (excluding, however,
the sale of natural gas to the City), or assessed or charged in any other manner the City deems
appropriate and consistent with applicable laws as may be changed from time to time, as may be
established by the City by separate ordinance imposing such a Franchise Fee duly enacted by the
City in the manner required by applicable Iowa Law. The City shall give the Company 90 days
written notice of the effective date of any franchise fee imposed by the City on the customers of
the Company located with in the corporate limits of the City. In the event that a Franchise Fee is
imposed by the City:
A. The franchise fee shall be remitted by the Company to the City on or before the last
business day of the month following the close of the calendar quarter in which the franchise fee is
charged.
B. The Company will use its best efforts to commence collection of franchise fees on or
before the first Company billing cycle of the first calendar month following ninety (90) days of
receipt of Information required of the City to implement the franchise fee, including the City’s
documentation of customer classes subject to or exempted from City-imposed franchise fee, if any.
C. City shall be solely responsible for identifying customer classes subject to or exempt
from paying the City imposed franchise fee.
D. The Company shall have no obligation to collect franchise fees from customers in
annexed areas until and unless such ordinances have been provided to the Company by certified
mail. The Company will use its best efforts to commence collecting franchise fees in the annexed
areas no later than sixty (60) days after receiving annexation ordinances from the City.
E. Company shall not, under any circumstances be required to return or refund any
franchise fees that have been collected from customers and remitted to the City.
F. With respect to the distribution or transportation by the Company of natural gas sold to
the customer by a third-party supplier of the commodity, the percentage of gross receipts shall be
applied to the customer’s full cost of gas delivered within the City, including all costs of
acquisition, ownership, and transportation whereof, wherever incurred. In determining the amount
of the fee, the Company may presume that the customer’s commodity cost of gas is the same as if
the gas were sold by the Company, unless a different cost is provided by Customer to Company.
Section 15. The Company shall have the power to condemn private property for the
purpose of providing natural gas pursuant to this franchise to the extent necessary to serve a public
use and in a reasonable relationship to an overall plan of distributing natural gas pursuant to this
franchise in the public interest upon approval of the City Council. The Company must establish
the necessity for each taking of private property, and when so established, the City Council may
approve the condemnation of the private property by resolution. Any such exercise of the eminent
domain powers shall be conducted in accordance with the Waukee Municipal Code and Iowa Law.
In the exercise of eminent domain powers pursuant to this provision, the Company shall be
responsible for any amounts awarded. In the event the City incurs expenses related to the
Company’s exercise of the eminent domain power granted in this ordinance, in addition to the
normal costs of internal processing of its request to receive and its exercise of eminent domain
powers, the Company will reimburse the City for its reasonable extra expenses.
Section 16. Before finalizing plans for any construction, expansion, modification or
relocation of its facilities, the Company shall submit copies of the plan to the City. Said plans shall
comply with federal state and local laws and ordinances and applicable design standards. The
Company shall not use any method of construction in connection with any work undertaken by
Company which may result in the cutting of any pavement unless the method is first approved in
writing by the City Engineer. Plans submitted upon and after the effective date of this franchise
shall identify Company Facilities proposed to be located in the right of way and those that would
be located on property owned in fee by the Company or on private easements.
In the event of an emergency situation, the Company is authorized to proceed with
excavation and repair prior to submitting plans to the City and receiving City approval, however,
any such excavation or repair must be completed in accordance with all applicable standards and
policies of the City applicable to such work and all property, pavement and appurtenances effected
by said work restored as near as practicable to it original condition. The Company shall notify the
City as soon as possible either during or after the repair has been completed.
Nothing herein shall be construed to effect or otherwise modify the Company’s relocation
responsibilities as provided herein.
Section 17. This Franchise is for the purpose specified herein and for no other purpose.
This Franchise does not authorize Company to utilize its facilities in the provision of
communication, data, media or any other purpose not specified herein within the Rights of Way.
In the event that Company desires to utilize its facilities for another purpose or purposes, Company
agrees that it must obtain authorization from the City under this franchise prior to such use.
Section 18. This franchise shall apply to and bind the City and the Company, their
successors and assigns; provided that any assignment by the Company or successor to the
Company, shall be subject to the approval of the City Council by resolution, which shall not be
unreasonably withheld. The City shall have 60 days from the effective date of the assignment, or
designation of successor in interest, to adopt the resolution. If the City fails to adopt a resolution
affirming or rejecting the assignment during the 60 day period the assignment or successor in
interest shall be deemed approved.
Section 19. This franchise is limited to natural gas service. No other services shall be
provided to the public by the Company pursuant to this franchise.
Section 20. If any section, provision, or part of this ordinance shall be adjudged to be
invalid or unconstitutional, such adjudication shall not affect the validity of the ordinance as a
whole or any section, provision, or part thereof not adjudged invalid or unconstitutional.
Section 21. This ordinance and the rights and privileges herein granted shall become
effective and binding upon Company’s commencement of gas service pursuant to the Asset
Purchase Agreement by and between the Company and the City which shall be the date on which
the last of the following occurs, whichever is later: 1) approval and publication of this ordinance
in accordance with Iowa law and acceptance by the Company; 2) Iowa Utility Board approval of
discontinuation and transfer of service by the City to Company, and 3) satisfaction of all
contingencies set forth in the Asset Purchase Agreement.
PASSED AND APPROVED BY THE COUNCIL this ____ day of ______________, 2025.
CITY OF WAUKEE, IOWA
By: ____________________________
Courtney Clark, Mayor
ATTEST:
__________________________________
Rebecca D. Schuett, City Clerk
I, Rebecca D. Schuett, City Clerk of the City of Waukee, Iowa, hereby certify that the
above and foregoing is a true copy of Ordinance No. __________, passed by the City Council at a
meeting held _______________, 2025, and signed by the Mayor ______________, 2025, and
published as provided by law on _______________, 2025.
_____________________________ (OFFICIAL SEAL)
Rebecca D. Schuett, City Clerk