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HomeMy WebLinkAboutWater Gas Transport, LLC - Right of Way Easement Agreement - 10/23/2006 4- ..• � -�. �vob- 553 .¢o RIGHT-OF-WAY EASEMENT AGREEMENT This Right-of-Way Easement Agreement (the "Agreement") is entered into as of October 23rd, 2006 by and between the City of Waterloo, Iowa("City") and Waterloo Gas Transport, LLC ("WGT"). RECITALS A. City and Planergy Capital, LLC ("PC") are parties to that certain Gas Rights Purchase and Operation Agreement, dated May 1, 2006, as amended (the "Gas Rights Agreement"). B. The Gas Rights Agreement provides for the grant of a right-of-way easement by City to PC to enable PC to deliver methane gas to the Tyson Foods site at 501 N. Elk Run Road. PC has assigned its easement rights under the Gas Rights Agreement to WGT. C. By this Agreement, the parties desire to provide for the grant of the easement and the terms thereof. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises exchanged herein and for other consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of Easement. Subject to WGT's receipt of a permit from the Iowa Utilities Board for location of a gas pipeline from the PC Facilities (as defined in the Gas Rights Agreement) to the Tyson Foods site at 501 N. Elk Run Road and delivery to City of a copy of the permit issued by the Iowa Utilities Board, City grants to WGT an easement to install, construct, inspect, maintain, repair, and remove a single gas pipeline in a line from the PC Facilities to Tyson Foods, such line being located in the public right of way generally parallel with Martin Luther King Jr. Drive on the southerly side thereof and crossing under said street at a single point approximately perpendicular to said street. The course of the pipeline and associated easement are more particularly depicted in the route map attached hereto as Exhibit "A", which forms a part of WGT's petition to the Iowa Utilities Board for a pipeline permit. WGT accepts the easement upon the express understanding that the public right of way is, and in the future may be, shared by other users and that WGT is not granted an exclusive right to use the public right of way. The easement shall terminate upon termination of the Gas Rights Agreement. 2. Compensation to City. WGT shall pay to City such initial compensation and subsequent annual compensation as provided for in Article N-A of the Gas Rights Agreement. 3. Insurance and Indemnity. The insurance and indemnity provisions of the Gas Rights Agreement shall also be applicable to WGT's activities and facilities in, upon, and beneath the easement premises. 4. Engineering Requirements. WGT agrees to the following conditions and covenants with respect to its use of the public right of way: a. The pipeline shall in all respects conform to the specifications for same set forth in the pipeline permit approved by the Iowa Utilities Board. b. WGT shall not place its facilities in the public right of way where they will interfere with the normal use or maintenance of any public improvement, including but not limited to streets, alleys, sidewalks, traffic control devices, sanitary sewers, storm sewers, storm drains, water mains, electrical transmission lines, or any public utility facility. C. WGT shall, upon completion of installation of the pipeline, promptly provide to the City copies of"as-built"plans regarding the pipeline. d. WGT shall promptly respond to any request to locate its underground facilities in the public right of way, and to facilitate such response WGT agrees to enroll in the Iowa One Call System and to undertake all acts necessary for its proper participation in such system. The response time in connection with any request shall not exceed forty-eight (48) hours. e. WGT shall, upon reasonable notice from City and at the sole expense of WGT, locate, remove, and relocate its facilities in, on, over, or under the public right of way in such manner as the City may at any time require for the purpose of facilitating the construction, reconstruction, maintenance, repair, or change in grade of any public improvement on, in, or about any public property or public right of way for the purpose of promoting the efficient operation of any such improvement or for purposes of facilitating the vacation and/or redevelopment of public right of way by the City. If WGT fails to act within a reasonable time, the City may cause WGT's facilities to be removed and relocated, and WGT shall be liable for any and all costs and expenses incurred in connection therewith. f. All excavations of the public right of way by WGT shall be in compliance with City ordinances. 5. Compliance with Law. With respect to its use of the public right of way and the easement premises, WGT at all times shall comply with all applicable local, state, and federal laws, statutes, ordinances, and regulations. All permits, license, or other approval necessary for WGT's lawful use of the right of way shall be obtained and maintained by WGT at its sole cost and expense. 6. Assignment. WGT may not assign, convey, or in any way transfer its rights under this Agreement without the express prior written consent of City; provided, however, that WGT may assign its rights and obligations under this Agreement to Waterloo Gas Cleanup, LLC 2 7. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective personal representatives, successors, and assigns. IN WITNESS WHEREOF, the parties have executed this Right-of-Way Easement Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA PLANERGY WATERLOO, LLC By: By: Timothy J. Hurl ayor Title Atter . ^� Nancy Eck qCity Clerk STATE OF IOWA ) ss: COUNTY OF BLACK HAWK ) Acknowledged before me on October 04/ 2006, by Timothy J. Hurley and Nancy Eckert, as the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa. Notary Public, State of Iowa - STATE OF MINNESOTA ) ss: COUNTY OF �pGJ ) 1 C QAckuQwledigeetefore me on October lok, 2006, by as � Q�\lti� t 11 of Planergy Waterloo, LLC. A q ^ LOR1E J.WAltDlft�t Notary Public, tate of Minn rota NOTARY PUBLIC '= State of Minnesota s+w My Commission Expires 1/31/2001 3 AMENDMENT TO GAS RIGHTS PURCHASE AND OPERATION AGREEMENT This Amendment to Gas Rights Purchase and Operation Agreement(the "Amendment") is entered into as of October 23, 2006 by and between Planergy Waterloo, LLC ("PC") and the City of Waterloo, Iowa("Waterloo"). RECITALS A. PC, as successor by assignment from Planergy Capital LLC, and Waterloo are parties to a Gas Rights Purchase and Operation Agreement (the "Agreement") dated as of May 1, 2006. B. The parties desire to amend the Agreement as set forth herein. AGREEMENT NOW, THERFORE, in consideration of the premises and other consideration, the receipt and sufficiency of which is acknowledged, the parties hereby agree as follows: 1. Section 2.3 is amended to strike therefrom the second sentence in its entirety and to substitute in its place the following: "At the time of PC Facilities start up, Waterloo will sell the WG to PC, in such quantities as may be available from time to time, and PC shall buy such WG regardless of the quantity, for PC's thermal and/or electric and related facilities; provided, however, that PC may buy, but shall not be obligated to buy, WG on Sundays and legal holidays. Waterloo shall not be liable for any costs, damages, or lost revenues associated with such use, whether the result of environmental response actions, or any other cause." 2. Article III is amended to strike the existing article in its entirety and to substitute in its place the following new Article III: ARTICLE III TERM AND PRICE The term of this Agreement is for a period of fourteen(14) years, beginning upon the date that PC acquires a leasehold interest in the property described in Article IV hereof. PC shall pay Waterloo for WG at a rate per net mmbtu of methane as follows: Years 1 to 4, inclusive $ .75 Years 5 to 8, inclusive $1.00 Years 9 to 12, inclusive $1.25 Years 13 to 14, inclusive $1.50 PC shall pay Waterloo a guaranteed minimum of$50,000.00 per year; provided, however, that said minimum shall be subject to downward adjustment, pro-rated on a daily basis, for each day that WG production is less than three hundred sixty (360)mmbtu of methane. The guaranteed minimum payment provided for in this paragraph shall be unaffected by any inability or failure of PC, for any reason whatsoever, to utilize the WG produced. Even if PC does not actually buy WG produced on a Sunday or legal holiday in accordance with Section 2.3, the guaranteed minimum shall be unaffected in respect of such days unless daily WG production for such days is less than 360 mmbtu. With respect to each month during the term of this Agreement, the rates stated above shall be subject to increase to a level equal to ten percent (10%) of the average monthly Northern DMARC pricing (the "Market Rate") for the immediately preceding month, in the event that the Market Rate for such period exceeds the rate stated above for the same period. The intent of this pricing adjustment is to recapture in the following month any overage in the Market Rate as compared to the stated contract rate. 3. The Agreement is amended to add a new Article W-A as follows: ARTICLE N-A RIGHT-OF-WAY EASEMENT Subject to approval from the Iowa Utilities Board for a gas pipeline from the PC Facilities to the Tyson Foods site located at 501 N. Elk Run Road, and further subject to initial compliance and continuing compliance with all requirements imposed by Waterloo on other users of the public right of way and to such further requirements imposed by Waterloo as are reasonable in the circumstances, considering the nature of the use that PC will make of the public right of way, Waterloo agrees to grant to PC an easement to install, maintain, repair, and remove a single gas pipeline in a line from the PC Facilities to Tyson Foods, such line being located in the public right of way generally parallel with and crossing under Martin Luther King Jr. Drive, as more particularly depicted in the route map submitted by PC as part of its petition to the Iowa Utilities Board for a pipeline permit. PC agrees that the pipeline shall be removed at its sole cost and expense within nine (9) months after the expiration or termination of PC's lease of the Leased Premises. PC agrees to pay to Waterloo the sum of$5,000.00 as compensation to Waterloo for its costs in review and approval of PC's plans by appropriate staff and coordination of same with existing facilities in the public right of way, oversight and supervision of pipeline installation and restoration of the public right of way, insurance review and premium adjustments, and other related activities. Said sum shall be payable to Waterloo in full upon submission of PC's plans to the City Engineer's office. In addition, PC agrees to pay to Waterloo the sum of$2,000.00 on each successive anniversary of this Agreement during the term hereof as compensation to Waterloo for its costs in ongoing supervision of 2 r the public right of way, increased insurance costs, oversight of pipeline repair, maintenance, and removal, and other related activities. 4. Except as modified by this Amendment, the Agreement shall continue unmodified in full force and effect. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Amendment to Gas Rights Purchase and Operation Agreement by their duly authorized representatives as of the date first set forth above. PLANERGY WATERLOO, LLC CITY OF WATERLOO, IOWA By: By: � Jo Sprange , Pre ' e t Timothy J. xr y, Mayor Attest. Nancy Eckert ity Clerk 3 Wallace W.Butler, Retired Craig O. Clark 1923-2004 Fred G.,Clark,Jr. 1922-1984 Timothy W. Hamann � Clark Butler Jared R. Christy R.. Liss Liss James E. Walsh,Jr. ** Wa l S h & H a m a n n Christopher S Wendland Jeremy L Westendorf Attorneys At Law Also admitted in Minnesota 315 E. 5th Street• PO. Box 596■Waterloo; Iowa 50704• 319 234-5701 luso admitted In ti MinnesotaMinnesota and Wisconsin FAX (319) 232-9579 • wloolaw@attglobal.nef October 23, 2006 Nancy Eckert City Clerk's Office 715 Mulberry Street Waterloo, IA 50703 Re: Planergy agreements Dear Nancy: Enclosed are two original signature copies of the amendment to gas rights purchase and operation agreement and the right-of-way easement agreement. Following approval by the council, please have the mayor sign, please sign yourself, and return one set to me. The other set you can keep with the City's files on this matter. Please contact me with any questions. Thank you. Sincerely, CLARK, BUTLER, WALSH &HAMANN By: C L� Chris Wendland CSW:mh Enclosures S:\FRAN\CHRIS\CrTY\MISC\ECKERT.1023.wpd