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HomeMy WebLinkAboutC07-253 MOU Confluence EnergyMaterial Purchase Memorandum of Understanding (MOU) This Memorandum of Understanding ("MOU") entered into on this 21" day of August, 2007 between Confluence Energy, LLC, a Colorado Limited Liability Company, (hereinafter referred to as "CE") and Eagle County, a political subdivision of the State of Colorado (hereinafter referred to as "County"). Recitals/Purpose: Whereas, County is operating a large scale logging operation in Eagle County, Colorado so as to remove unwanted tree material that is dead or dying as a result of infestation by the Mountain Pine Beetle for the purpose of fire mitigation; and Whereas, County is desirous of selling the resulting fibrous wood material pursuant to the terms set forth below; and Whereas, CE is in the process of building a wood pellet manufacturing facility in Kremmling, Colorado, and is desirous of purchasing fibrous wood materials pursuant to the terms set forth below. NOW, THEREFORE, CE and County hereby agree to the following: Sale of Material: County has existing fibrous wood material in log form in approximately 40-50 ft. lengths and different diameters. The estimated volume of fibrous wood material is 5000 tons. County agrees to sell the whole logs to CE for eighteen dollars ($18.00) per bone dry ton. Tonnage will be weighed at a facility approved by both County and CE. CE agrees to pay for loading and hauling costs of material. County agrees to deck material where it can be reached with a self loading log truck. Sale of Future Material A large amount of biomass material is dead or dying within the boundaries of Eagle County as a result of the current Mountain Pine Beetle outbreak. County plans to continue to remove dead material throughout the term of this agreement. County agrees, for the term of this agreement, to sell CE the salvaged material for fifteen dollars ($15.00) per bone dry ton. County estimates the amount of material to be 2,000 tons per year. CE agrees to pay for hauling costs for approximately 130 truck loads associated with this project, arriving/leaving the project site at a rate of 2-3 trucks per day. Loading of materials will take place at County's site in West Vail. Value of Material It is understood between both parties that saw log material is potentially of higher value than salvaged beetle kill wood material. In the event that County is desirous of selling higher valued saw log material and CE is desirous of purchasing saw log material, the saw log materials will be sold to CE at a higher price. Parties agree to determine an appropriate price for these materials at the time that they are available for sale. Term of Agreement The term of the agreement is 5 years. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, and venue for any action arising out of any dispute pertaining to this MOU shall be exclusive in Eagle County, Colorado. Third Party Beneficiary. Nothing herein expressed or implied is intended or should be construed to confer or give to any person or entity other than the County or CE and their respective successors and assigns, any right, remedy or claim under or by reason hereof of by reason of any covenant or condition herein contained. Termination. If both parties are unable to reconcile differences , either may terminate this Agreement at any time and for any reason or no reason upon written notice to CE specifying the date of termination, which date shall be not less than ten (10) days from the date of the notice. Severability. If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, such portion shall be deemed severable and its invalidity or its unenforceability shall not affect the remaining provisions; such remaining provision shall be fully severable and this Agreement shall be construed and enforced as if such invalid provision had never been inserted into this Agreement. Amendments. This MOU may be amended, modified or changed in whole or in part only by written agreement, duly authorized and executed by both County and CE. This Agreement represents the full and complete understanding of County and CE and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and CE with respect to the subject matter contained herein. Representations and Warranties It is understood that both parties carry their own insurance. CE shall indemnify and hold harmless, to the extent allowed by law, County, its boards, the individual members thereof, its departments, officers, agents, employees, servants and its successors from any claims of any nature whatsoever made by any person in connection with the acts or omissions of, or representations by CE or arising directly or indirectly out of CE's exercise of its privileges or performance of its obligations under this Agreement. This indemnification shall not apply to claims by third parties against County to the extent that County is liable to such third party for such claim without regard to the involvement of the indemnifying party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATS By: Tea] COUNTY OF EAGLE, STATE OF COLORADO :by and through !rs Board of County Commissioners CONFLUENCE ENERGY, LLC A Colorado Limited Liability Com any B• y 4 611' Title