HomeMy WebLinkAboutC12-330 Eagle Valley Clean Energy WASTE SUPPLY AND REMOVAL AGREEMENT THIS WAS SUPPLY AND MOVAL AGREEMENT ( "Agreement ") is entered into as of this day of , 2012, by and between EAGLE COUNTY, COLORADO, a political subdivision organized and existing under the laws of the State of Colorado (the "County "), and EAGLE VALLEY CLEAN ENERGY, LLC, a Utah limited liability company ( "EVCE"). County and EVCE are sometimes together referred to as the "Parties ", either one of which is a "Party." RECITALS A. EVCE proposes to construct an 10 megawatt biomass power plant (the "Facility ") in the Town of Gypsum, Colorado; B. The Facility will burn clean woody biomass to generate electricity; C. The County currently accepts various Clean Biomass (defined below) at the Eagle County Landfill north of Wolcott, Colorado (the "Landfill"); D. EVCE is able to remove the Clean Biomass from the Landfill for use in the Facility, and the County desires for EVCE to so divert the Clean Biomass for higher value use and in order to reduce the burden on the Landfill, subject to and in accordance with the terms of this Agreement; E. On or about December 6, 2011, the Parties entered into a non - binding Letter of Intent ( "Letter of Intent ") pursuant to which EVCE agreed to acquire, and the County agreed to make available, Clean Biomass from the County's Landfill; and F. The Parties desire to enter into this formalized agreement contemplated by the Letter of Intent. AGREEMENT NOW THEREFORE, in consideration of the foregoing premises and the following promises, the Parties agree as follows: 1. Exclusive Privilege to Remove Clean Biomass. The County hereby grants to EVCE the sole and exclusive franchise, right, license and privilege to take possession of and remove Clean Biomass from the Landfill. "Clean Biomass" shall mean biomass fuel produced directly from natural, untreated plant fibrous biomass, including any of the following sources: all tree components, forestry /logging residues such as timber thinnings, wood waste residues such as slash, stumpage, bark, trimmings, sawdust, shavings, slabs, edgings, pulp screens, and urban wastes such as yard waste that is woody biomass (for example, expressly excluding grass clippings and any other non -woody biomass), street and park maintenance, and grub residues. 11 Page Clean Biomass expressly excludes construction and demolition debris, and any material that is received at the County's Material Recovery Facility (MRF). 2. Consideration. The sole consideration for EVCE's right to the Clean Biomass is EVCE's agreement to remove the Clean Biomass at its sole cost and expense. The Parties agree that County shall have no financial obligation to EVCE under this Agreement. 3. Commencement Date and Term. The initial term of this Agreement shall commence on the earlier of (i) September 1, 2013, or (ii) forty -five (45) days from written notice to County from EVCE that EVCE is able to accept Clean Biomass, but in no event before June 1, 2013 (the "Commencement Date "). The term of this Agreement shall be five (5) years from the Commencement Date (the "Initial Term "), unless terminated earlier pursuant to Section 11 below. Upon expiration of the Initial Term and any Renewal Term, this Agreement will automatically renew for an additional five (5) years (each a "Renewal Term "), provided that there shall not be more than three (3) Renewal Terms without prior written agreement between the Parties. 4. Exclusivity of EVCE's Rights. EVCE shall have the exclusive right to remove Clean Biomass from the Landfill, and the County shall grant no other franchise, right, license or privilege in the Clean Biomass to any other party during the term hereof. Notwithstanding the foregoing, County shall be entitled to first use of wood chips and/or other Clean Biomass for the County's own purposes in the operation of the Landfill and as may be otherwise required from time to time for use on properties owned by County, but not for use by or transfer to third parties. 5. Removal and Processing of Clean Biomass. EVCE will provide all equipment and personnel necessary to remove all Clean Biomass capable of being used at the Facility at EVCE's sole cost and expense. County will provide EVCE with ingress and egress to the Landfill without charge for purpose of collecting, processing, and removing the Clean Biomass. On or before the Commencement Date, the Parties will agree on a schedule for removal of the Clean Biomass at a defined periodicity (e.g., at least once every 3 months) or at such times as County has accumulated a specified amount of segregated Clean Biomass. County acknowledges that EVCE may conduct chipping or grinding of the Clean Biomass at the Landfill, and County agrees to provide an area for such activities as may be reasonably required by EVCE. In the event EVCE elects to conduct chipping or grinding of the Clean Biomass at the Landfill, any equipment shall be supplied by and any related costs shall be the sole responsibility of EVCE. EVCE shall at all times comply with any rules or regulations at the landfill and shall have access to the Landfill and shall perform its work during such hours as the Landfill is open for business to the public. Such equipment shall be located temporarily during such times when chipping and grinding of Clean Biomass is occurring at the landfill. The chipping and grinding equipment shall be operated in a location identified by County which location can be modified upon advance notice to EVCE. County shall not be responsible for any damage to EVCE's chipping, grinding or other equipment while at the landfill. Further, County shall not be responsible for any injury to any person, direct or indirect, associated with EVCE's operation of equipment at the landfill. Upon termination or at the conclusion of this Agreement, EVCE shall remove any equipment located at the landfill. 2 1 Page 6. No Guarantee of Supply or Removal. County shall have no obligation to make available any minimum amount of Clean Biomass per year. EVCE represents that it agrees to remove all of the Landfill's Clean Biomass capable of being used at the Facility taking into consideration the demands of the Facility, EVCE's other fuel supply sources, the quality of Clean Biomass availability at the Landfill, and other similar factors. In the event that EVCE is not using all of the Clean Biomass produced at the landfill, then County may with advance written approval of EVCE sell or supply such Clean Biomass to third parties. 7. Condition of Clean Biomass. County shall make reasonable efforts to segregate the Clean Biomass from other waste disposed at the Landfill. County will have no obligation to clean or clear dirt or other debris from the Clean Biomass. EVCE acknowledges that County disclaims any guarantee or warranty of suitability of the Clean Biomass for EVCE's intended purposes. 8. Insurance. EVCE shall procure and shall maintain at its expense during the term of this Agreement and any extensions thereof, the following insurance from companies authorized to do business in Colorado, covering all operations and services to be performed by EVCE hereunder: A. Workers Compensation Insurance in accordance with the provisions of the Colorado Workers' Compensation Act. B. Commercial general liability insurance in the minimum amount of one million dollars ($1,000,000) per injury, and the minimum aggregate amount of two million dollars ($2,000,000). County shall be named as an additional insured. C. Automobile Liability, Injury and Property Damage with a limit of one million dollars ($1,000,000) combined single limit including owned, hired and non - owned autos. County shall be named as an additional insured. Certificates of Insurance acceptable to County shall be filed with County prior to the Commencement Date. Coverage afforded under the policies will not be canceled until at least thirty (30) days prior written notice has been given County. EVCE and its subcontractors shall not permit any subcontractors to perform the services contemplated hereunder until all required insurance has been obtained and certificates with the proper endorsements have been filed with County. All policies must be written by insurance companies whose rating in the most recent Best's rating guide is not less than A- (VII). If any non - admitted (surplus or excess lines) insurer is used to provide any of the above policies, the policy must include an endorsement restricting the insurer's right to cancel the policy to the following circumstances after it has been in effect for sixty (60) days (i) non - payment of premium; or (ii) discovery of fraud or material misrepresentation in the application for insurance. Certificates of Insurance with the required endorsements evidencing coverage must be delivered to County prior to commencement of this Agreement and on an annual basis commencing on the first (1 anniversary of the policy year and continuing thereafter, or at any time within fifteen 3 (Page (15) days after request therefor by County. Notwithstanding any other provision hereof, EVCE shall provide County with a complete policy of any policy of insurance required hereunder within five (5) business days of a written request by County, and hereby authorizes EVCE's brokers, without further notice to or authorization by EVCE, to immediately comply with any written request of County for a complete copy of any policy required hereunder. 9. Indemnification. EVCE shall indemnify, defend and hold County, and any of its officers, agents and employees harmless from and against all costs, claims, damages, judgments, losses and expenses of every nature, including reasonable attorneys' fees and costs of investigation and defending an action, arising at any time, directly or indirectly, from this Agreement or from any negligent act or omission of EVCE, its employees, subcontractors and their employees to the full extent of the insurance policies described in Section 8 hereof. 10. Subcontractors. County shall have the right in its reasonable discretion to approve all personnel assigned to perform the work for EVCE at the landfill and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned. EVCE shall be responsible for the acts of its subcontractors. 11. Termination. Either Party may terminate this Agreement, with or without cause, upon 180 days written notice to the other Party. 12. Conditional Upon Closing. This Agreement shall be and is hereby made expressly contingent upon EVCE's acquisition of the site for the Facility on or before December 31, 2012. In the event EVCE has not secured the site for the Facility on or before December 31, 2012, either party may terminate this agreement by written notice to the other party. 13. Default and Remedies. Neither Party shall be in breach or default under this Agreement unless, within sixty (60) days after notice from the non - defaulting Party, the defaulting Party fails to cure any breach which is set forth in such notice. In the event of a breach or default that is not timely cured pursuant to this Section0, the non - defaulting may elect to (i) terminate the Agreement, or (ii) pursue an action for specific performance of this Agreement. 14. Notice. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is intended to be given at the address set forth below, or at such other address as may be subsequently furnished to the other Party as provided herein. Such notice shall be deemed to have been given when deposited in the U.S. Mail. To County: Ken Whitehead, Solid Waste & Recycling Director 815 Ute Creek Road Post Office Box 473 Wolcott, CO 81655 4 1 Page Ken. Whitehead @eaglecounty. us To EVCE: Eagle Valley Clean Energy 4626 N. 300 W., 3` Floor Provo, Utah 84604 Attention: Dean L. Rostrom Email: dean @evergreencleanenergy.com 15. Assignment. This Agreement is assignable by EVCE upon prior written consent of County, not to be unreasonably withheld. 16. Paragraph Captions. The captions of the paragraphs are set forth only for convenience and reference and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 17. Amendment. This Agreement may be amended only by an instrument in writing signed by the Parties. No change to the schedule of removal of Clean Biomass as described in Section 0 above shall require an amendment to this Agreement. 18. Waiver of Breach. The waiver by any Party to this Agreement of a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party. 19. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their respective legal representatives, successors and assigns. 20. Severability. In the event that any of the terms, covenants or conditions of this Agreement or their application shall be held invalid as to any person, entity or circumstance by any court having competent jurisdiction, the remainder of this Agreement and the application in effect of its terms, covenants or conditions to such persons, entities or circumstances shall not be effected thereby. 21. Duly Authorized Signatories. By execution of this Agreement, the undersigned each individually represent that this Agreement has been duly approved and authorized by the Party on whose behalf he or she has executed this Agreement, and that he or she is duly authorized to execute and deliver this Agreement for the entity and that such entity shall be bound to all terms and conditions of this Agreement by the signatory's execution hereof. 22. Duplicate Original. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. 5 1 Page • 23. Venue and Governing Law. Any action arising out of this Agreement shall be brought in the District Court, Eagle County, Colorado. This Agreement shall be governed by laws of the State of Colorado. 24. Time is of the Essence. All the time limits stated in this Agreement are of the essence of this Agreement. However, neither party shall be liable for delays or failures to perform due to acts of God, strikes, civil commotions, epidemics, quarantines, freight embargoes, or other cause of similar nature not reasonably within such party's control. 25. Waiver of Consequential Damages. Each Party waives any and all claims against the other Party for consequential damages arising out of or relating to this Agreement. 26. Specific Performance. In addition to any of the remedies the Parties may have upon the breach of this Agreement by the other Party, the aggrieved Party shall have the right to request a court of proper jurisdiction to enter a mandatory injunction against the other Party requiring specific performance of the terms contained in this Agreement. 27. Construction. The Parties acknowledge and confirm that each of their respective attorneys have participated jointly in the review and drafting of this Agreement and that it has not been written solely by counsel for one Party. The Parties therefore stipulate and agree that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting Party shall not be employed in the interpretation of this Agreement to favor any Party against another. 28. Entire Agreement. This Agreement represents the entire agreement between the Parties and supersedes any oral or collateral agreements or understandings. 29. Independent Contractor. It is expressly acknowledged and understood by the Parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship between County and EVCE or County and EVCE's employees. EVCE and its employees shall be, and shall perform as, independent contractors. No officer, agent, subcontractor, employee, or servant of EVCE shall be, or shall be deemed to be, the employee, agent or servant of County. Neither EVCE nor its officers, agents, subcontractors, employees or servants may represent, act, purport to act or be deemed the agent, representative, employee or servant of County. 30 Public Contracts. a) If EVCE (hereinafter "Consultant" for purposes of this paragraph 30) has any employees or subcontractors, Consultant shall comply with C.R.S. § 8- 17.5 -101, et seq., regarding Illegal Aliens — Public Contracts for Services, and this Contract. By execution of this Contract, Consultant certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Consultant will participate in the E- verify Program or other Department of Labor and Employment program ( "Department Program ") in order to confirm the eligibility of all employees who are 6 1 Page newly hired for employment to perform work under this Contract. b) Consultant shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (ii) Enter into a contract with a subcontractor that fails to certify to the Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. c) Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E- verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E- verify program can be found at: http: / /www. dhs. gov/xprevprot/programs/gc_1185221678150.sht m d) The Consultant shall not use either the E- verify program or other Department Program procedures to undertake pre - employment screening of job applicants while the public contract for services is being performed. e) If the Consultant obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Consultant shall be required to: (i) Notify the subcontractor and the County within three days that the Consultant has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (e) the subcontractor does not stop employing or contracting with the illegal alien; except that the Consultant shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. f) The Consultant shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8 -17.5- 102(5). 71 Page g) If a Consultant violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Consultant shall be liable for actual and consequential damages to the County as required by law. h) The County will notify the office of the Colorado Secretary of State if Consultant violates this provision of this Contract and the County terminates the Contract for such breach. [Signature page follows] 81 Plfzc 4 DOD ber Dated this , day of -Serterrthe'r , 2012. COUNTY OF EAGLE, STATE OF COLORADO By and through its Board of County Commissioners , 11.11F. 0 , 411111111111111111 ;` Peter F. Runyon, Chairman Attest: I � �/ Clerk to the Board EAGLE VALLEY CLEAN ENERGY, LLC, A Utah limite• liability company ,011 By: Dean Rostrom, Manager 9