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Home My Public Portal AboutORD14301 BILL NO. 2007-130 SPONSORED BY COUNCILMAN Klindt ORDINANCE NO. I41D I AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN EASEMENT WITH AMERESCO. NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized to execute an easement with Ameresco for a waste gas pipeline. Section 2. The easement shall be substantially the same in form and content as the easement attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: awl? . �d Z Approv Gu is O� Presiding Officer Mayor ATTEST: APPROVED AS TO FORM: I ity Cleg City Counselor No. 200802565 Bk 560 Pg 233 State of Missouri Cole County RECORDED • Mar 10, 2008 11: 0:21 AN Carry D. Rademan, REtorder of Deeds Fees $51.00 Deputy J Space Above for Recorder's Use Only DOCUMENT COVER SHEET TITLE OF DOCUMENT: Easement Agreement DATE OF DOCUMENT: j'la,rA - , 200.8 GRANTOR: Jefferson City, State of Missouri • Mailing Address: 320 East McCarty Street Jefferson City, MO 65101 GRANTEE: Ameresco Jefferson City LLC Mailing Address: 111 Speen Street, Suite 410 Framingham, MA 01701 LEGAL DESCRIPTION: See Exhibits A, B and C REFERENCE BOOK& PAGE: N/A • c6RP/1043579.1 041826.003 l7 • EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("Agreement"), is entered into as of this day of , 2008 by and between AMERESCO JEFFERSON CITY LLC, a Delaware limited liability company (hereinafter, together with its successors and assigns, collectively referred to as "Grantee") and JEFFERSON CITY, MISSOURI, a home rule city (hereinafter, together with its successors and assigns, collectively referred to as "Grantor"). WITNESSETH: WHEREAS, Grantor has agreed to grant and Grantee desires to obtain non-exclusive easements through certain portions of Grantor's property for the sole purpose of the construction, installation, use, maintenance, repair, reconstruction, removal, and replacement of a planned pipeline for the transportation of landfill gas to be constructed by Grantee (which pipeline together with all related improvements and installations, to the extent applicable, being hereinafter referred to as the"Pipeline"); and WHEREAS, Grantor has agreed to grant to Grantee such easements on the terms and conditions hereinafter specified; NOW, THEREFORE, for and in consideration of$1.00 in hand paid and other good and • valuable consideration the receipt and adequacy of which are hereby acknowledged, Grantor and Grantee do further agree as follows: 1. Grantor hereby grants, bargains, sells, conveys and transfers to Grantee a perpetual non-exclusive easement over, through and across that certain portion of Grantor's property that is (i) ten (10) feet wide and approximately five (5) feet on each side of the centerline of the Pipeline as constructed, the location of such easement being as more particularly described on Exhibit A attached hereto and hereby made a part hereof("Easement Area A"), (ii) ten (10) feet wide and approximately five (5) feet on each side of the centerline of the Pipeline as constructed, the location of such easement being as more particularly described on Exhibit B attached hereto and hereby made a part hereof("Easement Area B"), and (iii) ten (10) feet wide and approximately five (5) feet on each side of the centerline of the Pipeline as constructed, the location of such easement being as more particularly described on Exhibit C attached hereto and hereby made a part hereof ("Easement Area C") (collectively, Easement Area A, Easement Area B and Easement Area C are hereinafter referred to as the "Easement Area"), for the purpose of the construction, installation, use, maintenance, repair, reconstruction, removal, and replacement of the Pipeline (collectively, hereinafter referred to as the "Easement"). In addition, Grantor further grants to Grantee and its successors, assigns, agents and invitees a temporary easement over such portion of Grantor's premises adjoining the Easement Area ("Grantor's Premises") as might reasonably be necessary for access to the Easement Area (or any Relocated Easement Area (as hereinafter defined), as applicable) for the construction, installation, maintenance, repair, reconstruction, removal, and replacement of the • Pipeline as may be necessary from time to time. CORP/1043579.1 041826.003 - 2 - 2. Grantee shall be solely responsible for all costs and expenses incurred in connection with the construction, installation and maintenance of the Pipeline, including but not limited to, any grading, excavating or other site work necessary in connection with such construction, installation and maintenance, and the registration of the Pipeline with the Missouri One Call System, except for those costs and expenses caused by Grantor's negligence or willful misconduct. In relation thereto, Grantee acknowledges and agrees that it shall maintain the Pipeline in compliance with all applicable laws, rules, regulations, ordinances and codes (as long as this Agreement has not been terminated). 3. Grantee agrees to indemnify and to hold Grantor harmless from and against any and all liens, liabilities, claims, actions, damages, costs and expenses and against any and all claims for death or injury to persons or damage to properties arising out of or resulting from Grantee's use of the Easement Area or Grantor's Premises pursuant to the provisions of this Agreement, including, but not limited to any such liens, liabilities, claims, actions, damages, costs and expenses arising from any contamination of Grantor's Premises by Hazardous Substances (as hereinafter defined) as a result of such Grantee's use, except for liens, liabilities, claims, actions, damages, costs and expenses caused by (i) force majeure, (ii) the negligence or willful misconduct of Grantor, its agents and invitees, or (iii) acts of third parties. With respect thereto, Grantee acknowledges and agrees that in the event it shall transport Hazardous Substances over the Pipeline, it shall do so only in compliance with all applicable laws, rules, regulations, ordinances and codes governing such Hazardous Substances. For purposes herein, the term "Hazardous Substances" means any such materials, waste, contaminates, pollutants or other substances as defined by cumulative reference to the following references as amended from time to time: (i)The Resource Conservation and Recovery Act of 1976, 42 USC Section 6901 et sec..; (ii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 USC Section 9601 et seg_; (iii) the Hazardous Materials Transportation Act, 49 USC Section 1801 et sec ; (iv) the Toxic Substance Control Act of 1976, 15 USC Section 2601 et seg.; (v) the Clean Water Act, 33 USC Section 466 et 5M.; (vi) the Clean Air Act, 42 USC Section 7401 et sec l.; (vii) EPA Federal Regulations promulgated and codified in 40 C.F.R. Parts 260-265 and Parts 122-124; (viii) applicable laws and regulations of the state in which the Pipeline is located and (ix) any applicable federal, state or local regulations, rules or orders issued or promulgated under or pursuant to any of the foregoing or otherwise by any department, agency or other administrative, regulatory or judicial body. 4. Notwithstanding any other provision contained herein to the contrary, Grantee acknowledges and agrees that Grantor shall have the right to relocate the Easement Area (or any portion thereof) only as may be reasonably required for a public improvement; provided, however, if Grantor requires relocation of the Easement Area (or any portion thereof), Grantee shall have the right to a new perpetual non-exclusive easement location over, through and across that portion of Grantor's Premises that provides the same functionality, service, and connection to the surrounding portions of the Pipeline as the original Easement Area(or any portion thereof) which is being relocated (and the original Pipeline). If such relocation is necessary, Grantor shall provide written notice to Grantee. In such event (i) the parties agree that they will cooperate to identify a new location that will minimize Grantee's relocation and maintenance costs (and minimize the portion of the Easement Area to be relocated) and provide the same isfunctionality, service and connection to the surrounding portions of the Pipeline as the original Pipeline and Easement Area (the "Relocated Easement Area"), and (ii) Grantor agrees to allow CORP/1043579.1 041826.003 - 3 - Grantee to relocate the Easement Area (and in Grantee's sole discretion to either relocate the • original Pipeline or construct a new Pipeline) in such a way so as to minimize the interruption or disruption of the transporting of the landfill gas to the extent practicable (including, but not limited to, Grantor allowing the original Pipeline to be kept in operation while any relocated or new Pipeline is being constructed). Upon identification of the Relocated Easement Area, Grantee shall, at its sole cost and expense, relocate the Pipeline to the Relocated Easement Area (or construct a new Pipeline in the Relocated Easement Area) in compliance with all applicable laws, ordinances, codes and regulations. Grantor and Grantee acknowledge and agree that to the extent Grantor grants others the non-exclusive right to use the Easement Area (or any Relocated Easement Area) such additional grants shall be done in a manner that does not have a material adverse impact on Grantee's Pipeline in such area. 5. The respective rights, titles, and obligations created hereunder shall inure to the benefit of and be binding upon Grantor and Grantee and their respective successors, successors in title, and assigns; provided, however, that the easement created hereunder is not intended to and shall not benefit or burden any property other than Grantor's Premises. Any reference herein to Grantor or Grantee shall be construed to include the heirs, executors, administrators, successors, successors-in-title, representatives and assigns (either voluntarily by act of the parties or involuntarily by operation of law) of the same, and shall include the plural if there should be more than one or as the context may require. 6. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may be modified or • amended only in a writing signed by both of the parties hereto, or their successors or assigns, as the case may be. The failure by a party to enforce any provision of this Agreement against the other party shall not be deemed to be a waiver of the right to do so thereafter. Notwithstanding anything to the contrary in this Agreement, if Grantee determines that the Easement is no longer necessary, then Grantee may re-convey the Easement back to Grantor upon providing written notice to Grantor and this Agreement shall terminate. Upon the termination of this Agreement, Grantee shall have, at Grantee's option, a period of one hundred eighty (180) days following the date of such termination to remove the Pipeline from the Easement Area (and to otherwise remove any other of its existing Pipelines from any Relocated Easement Area, as applicable). Any portion of the Pipeline that has not been removed from the Easement Area (and such other of Grantee's existing Pipelines that have not been removed from any Relocated Easement Area, as applicable) prior to the expiration of the aforesaid one hundred eighty (180) day period shall be deemed to have been abandoned, and title to such portion of the Pipeline that is in the Easement Area (and such other of Grantee's existing Pipelines in any Relocated Easement Area, as applicable) shall vest in Grantor at the end of such one hundred eighty(180) days, without any payment or other consideration given by Grantor. 7. If any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereto, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein; provided, however, that if permitted by applicable law, any invalid, illegal or unenforceable provision may be considered in determining the intent of the parties with respect to the provisions of this Agreement. CORP/1043579.1 041826.003 - 4 - • 8. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,but all of which shall constitute one and the same agreement. TO HAVE AND TO HOLD said Easement, together with all rights and appurtenances belonging thereto, subject to the terms herein. (This Space Intentionally Left Blank) • • CORP/1043579.1 041826.003 - 5 - • IN WITNESS WHEREOF, Grantor and Grantee have executed this instrument the day and year first above written. GRANTEE: AMERESCO JEFFERSON CITY LLC, a Delaware limited liability company By: AMERESCO, INC., a Delaware corporation, its sole member By: Name: s h P. DeManche Title: Ex tive Vice President COMMONWEALTH OF MASSACHUSETTS ) SS COUNTY OF MIDDLESEX ) • Z 1 `' '�A,All 2008 before me the undersigned no public, On this day of r y gn notary p , personally appeared Joseph P. DeManche, as the Executive Vice President of Ameresco, Inc., a Delaware corporation, the sole member of Ameresco Jefferson City LLC, a Delaware limited liability company, proved to me through satisfactory evidence of identification, which was a Massachusetts driver's license, to be the person whose name is signed on the preceding document, and acknowledged to me that he signed the preceding document voluntarily for its stated purpose as Executive Vice President of Ameresco, Inc., a Delaware corporation, the sole member of Ameresco Jefferson City LLC, a Delaware limited liability company. My Commission expires c,cr,,a rA I 1 , 2 13 Not6y Public (Signatures Continue on Next Page) 3 )x ' ��' -?Y JOHN ANTHONY ABATE,II Notary Public • Commonwealth of Massachusetts - My Commission Expires Oct 11.2013 :,4. 47 t V Q/6043579 1T 041826.003 - 6 - . GRANTOR: JEFFERSON ITY, MISSOURI ame- Joh Landwehr Titl . yor STATE OF MISSOURI ) SS COUNTY OF COLE ) On this 3AI day of /rhea h , 2008, before me appeared John Landwehr, to me personally known, who, being by me duly sworn, did say that he is Mayor of the City of Jefferson, Missouri, and that said instrument was signed on behalf of said public body and said Mayor acknowledged said instrument to be the free act and deed of said public body. My Commission expires [ " NOTARY SEAL " No Public Cynthia A. Lambert, Notary Public Cole County, ar�1e of Missouri y Commission Expires 811512008 • CORP/1043579.1 041826.003 - 7 - • EXHIBIT "A" Easement Area A (East End of Stertzer Road to Shamrock Road): A STRIP OF LAND OVER AND ACROSS A TRACT OF LAND BEING PART OF U.S.PRIVATE SURVEYS 2596 AND 2906 IN THE CITY OF JEFFERSON,COLE COUNTY,MISSOURI,SAID STRIP TO BE 10 FEET WIDE,THE CENTERLINE OF SAID STRIP DESCRIBED AS FOLLOWS: FROM THE SOUTHWEST CORNER OF A TRACT OF LAND RECORDED IN BOOK A PAGE 644,ALSO BEING THE SOUTHWEST CORNER OF U.S.PRIVATE SURVEY 2596,THENCE N 0 003'32"W,ALONG THE WESTERLY LINE OF SAID U.S.PRIVATE SURVEY 2596,339.72 FEET TO THE SOUTH RIGHT-OF-WAY OF STERTZER ROAD;THENCE EASTERLY ALONG SAID RIGHT- OF-WAY ON A CURVE TO LEFT,HAVING A RADIUS OF 2487.28 FEET,A DISTANCE OF 677.55 FEET,THE CHORD BEING N 88°50158 11E 675.46 FEET;THENCE N 8°57'16"W,ALONG THE EASTERLY END OF SAID STERTZER ROAD RIGHT-OF-WAY,26.15 FEET TO THE POINT OF BEGINNING OF SAID CENTERLINE; THENCE LEAVING SAID RIGHT-OF-WAY, S 85 003'27 11W 282.53 FEET;THENCE N 88 039'24 11W 120.86 FEET;THENCE N 88 001'18 11W 126.60 FEET;THENCE ALONG A CURVE TO THE RIGHT,HAVING A RADIUS OF 2121.29 FEET,A DISTANCE OF 351.30 FEET,THE CHORD BEING N 84 027152 11W 350.90 FEET;THENCE N 89 135'01"W 98.48 FEET;THENCE N 76 031146 11W 158.32 FEET;THENCE N 74 158112 11W 203.38 FEET;THENCE N 74°14'03"W 197.23 FEET; THENCE ALONG A CURVE TO THE RIGHT,HAVING A RADIUS OF 861.74 FEET,A DISTANCE OF 134.33 FEET,THE CHORD BEING N 69 046106 11W 134.20 FEET; THENCE N 0 033'14"W 303.26 FEET; • THENCE N 49 027114 11W 196.02 FEET;THENCE N 49°45138"W 198.43 FEET; THENCE N 51 020'08"W 197.70 FEET;THENCE ALONG A CURVE TO THE LEFT,HAVING A RADIUS OF 803.19 FEET,A DISTANCE OF 122.37 FEET,THE CHORD BEING N 56 052'16"W 122.25 FEET;THENCE N 84°46'07"W 43.92 FEET;THENCE ALONG A CURVE TO THE LEFT,HAVING A RADIUS OF 815.69 FEET;A DISTANCE OF 72.17 FEET,THE CHORD BEING N 66 019105 11W 72.15 FEET; THENCE N 8 051'10"W 60.66 FEET;THENCE N 67 009125 11W 244.92 FEET;THENCE N 71 019'32"W 78.64 FEET;THENCE N 69 054'28 11W 112.45 FEET;THENCE N 67°42'53"W 110.20 FEET; THENCE ALONG A CURVE TO THE LEFT,HAVING A RADIUS OF 668.10 FEET,A DISTANCE OF 119.72 FEET,THE CHORD BEING N 83 016'22 11W 119.56 FEET;THENCE S 83 058'32"W 57.68 FEET TO THE EAST RIGHT-OF-WAY OF SHAMROCK ROAD;THENCE S 83 058'32"W 60.45 FEET TO THE WEST RIGHT-OF-WAY OF SHAMROCK ROAD AND THE END OF SAID CENTERLINE,SAID POINT BEING N 1 023108 11E 165.29 FEET AND N 1 000129 11E 5.03 FEET FROM PT STA.33+00.78 AS SHOWN BY SHAMROCK ROAD PLANS DATED JULY 1996. • CORP/1043579.1 041826.003 - 8 - EXHIBIT "B" • Easement Area B (Crossing Militia Drive): A STRIP OF LAND OVER AND ACROSS A TRACT OF LAND IN THE SOUTHEAST QUARTER OF SECTION 24 TOWNSHIP 44 NORTH RANGE 11 WEST AND THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 19 TOWNSHIP 44 NORTH RANGE 10 WEST IN THE CITY OF JEFFERSON,COLE COUNTY,MISSOURI,SAID STRIP TO BE 10 FEET WIDE,THE CENTERLINE OF SAID STRIP DESCRIBED AS FOLLOWS: FROM THE SOUTHWEST CORNER OF A TRACT OF LAND RECORDED IN BOOK A PAGE 644,ALSO BEING THE SOUTHWEST CORNER OF U.S.PRIVATE SURVEY 2596,THENCE N 85°42'11"E,ALONG THE SOUTH LINE OF U.S.PRIVATE SURVEY 2596,1648.92 FEET;THENCE LEAVING SAID SOUTH LINE,N 89°30'20"E 1090.99 FEET TO THE NORTHEAST CORNER OF THE TRACT SHOWN ON THE SURVEY RECORDED IN BOOK A PAGE 672 OF THE COLE COUNTY RECORDS AND THE WEST RIGHT-OF-WAY OF MILITIA DRIVE;THENCE ALONG SAID RIGHT- OF-WAY,S 13°47'02"W 69.34 FEET;THENCE S 2°28'36"W 19.99 FEET TO THE POINT OF BEGINNING;THENCE LEAVING SAID RIGHT-OF-WAY,N 82°16'21"E 162.72 FEET;THENCE S 87 026'33"E 5.70 FEET TO THE EAST RIGHT-OF-WAY OF MILITIA DRIVE AND THE END OF SAID CENTERLINE,SAID POINT BEING N 6 059'05"W 1.52 FEET FROM SOUTHWEST CORNER OF TRACT 3 OF AN UNRECORDED SURVEY BY CENTRAL MISSOURI PROFESSIONAL SERVICES, INC.DATED DECEMBER 2, 1993. • CORP/1043579.1 041826.003 - 9 - r EXHIBIT "C" • Easement Area C (Crossing One Color Way): A STRIP OF LAND OVER AND ACROSS A TRACT OF LAND IN THE SOUTHWEST FRACTIONAL QUARTER OF SECTION 19 TOWNSHIP 44 NORTH RANGE 10 WEST,ALSO BEING PART OF U.S.PRIVATE SURVEY 2616 IN THE CITY OF JEFFERSON,COLE COUNTY,MISSOURI, SAID STRIP TO BE 10 FEET WIDE,THE CENTERLINE OF SAID STRIP DESCRIBED AS FOLLOWS: FROM A STONE ON THE RANGE LINE NEAR THE SOUTHERLY LINE OF THE MISSOURI PACIFIC RAILROAD AND DESCRIBED BY A WARRANTY DEED RECORDED IN BOOK 356 PAGE 273 OF THE COLE COUNTY RECORDS,THENCE S 24°53'56"E 1.23 FEET TO THE SOUTHERLY RIGHT-OF-WAY OF.SAID RAILROAD,ALSO BEING THE NORTH RIGHT-OF-WAY OF ONE COLOR WAY;THENCE EASTERLY ALONG THE SOUTHERLY RIGHT-OF-WAY OF SAID RAILROAD THE FOLLOWING COURSES: EASTERLY ON A CURVE TO THE LEFT,HAVING A RADIUS OF 2845.07 FEET,A DISTANCE OF 957.41 FEET THE CHORD BEING S 81°57'25"E 952.90 FEET;THENCE EASTERLY ON A SPIRAL CURVE TO THE LEFT,THE CHORD BEING N 87°42'12"E 103.42 FEET;THENCE N 87 032100 11E 1422.60 FEET TO THE POINT OF BEGINNING OF SAID CENTERLINE; THENCE S 0°38'03"E 60.03 FEET TO THE SOUTH RIGHT-OF-WAY OF ONE COLOR WAY AND THE END OF SAID CENTERLINE,SAID POINT BEING S 87 032'00"W 358.60 FEET FROM THE NORTHEAST CORNER OF TRACT 4 OF AN UNRECORDED SURVEY BY CENTRAL MISSOURI PROFESSIONAL SERVICES,INC.DATED DECEMBER 2,1993. • CORP/1043579.1 041826.003