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.
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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.
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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
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(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
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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.
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•
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
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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).
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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