HomeMy WebLinkAboutC13-050 Eagle Valley Clean Energy, LLC Agreement ASH ACCEPTANCE AGREEMENT
THIS SH ACCEPTANCE AGREEMENT ("Agreement") is entered into as of this
day of
THIS /ASH , 2013, 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."
ty.
RECITALS
A. EVCE proposes to construct an 11.5 megawatt biomass power plant (the
"Facility ") in the Town of Gypsum, Colorado; and
B. The Facility will burn clean woody biomass to generate electricity producing a
byproduct of ash residue; and
C. EVCE desires to dispose of the ash residue and County is willing to accept such
ash residue at its landfill located at 815 Ute Creek Road, Wolcott, Colorado 81655 (the
"Landfall") on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises and the following
promises, the Parties agree as follows:
1. Acceptance of Ash. Subject to federal, state and County permits, rules and regulations in
effect at the time of any Ash (defined below) delivery to the Landfill, the County hereby agrees
to accept delivery of ash residue from EVCE at the Landfill, and EVCE agrees to deliver only
such ash residue as is derived from woody biomass material meeting the fuel specifications set
forth in Schedule 1 to this Agreement ( "Ash ") in an estimated annual amount of 4,260 cubic
yards at 40 pounds per cubic foot. County reserves the right to reject any delivery that is not in
compliance with federal, state or County permits, rules, regulations or specifications identified in
Schedule 1. The Parties agree that if the estimated annual amount increases beyond the amount
set forth above, the Parties will meet and will negotiate in good faith a written amendment to this
Agreement to address the terms and conditions for acceptance at the Landfill of increased
amounts of Ash in accordance with and subject to the permits, rules and regulations of the
County, state and federal governments applicable to the Landfill.
2. Consideration. EVCE shall pay the County's standard published rates for delivery of Ash
which may be amended or changed from time to time. All payments shall be made in a timely
manner and late fees, interest and other costs may apply to late payments in accordance with
invoice procedures of the Eagle County Solid Waste and Recycling Department.
3. Commencement Date and Term. The initial term of this Agreement shall commence on
November 1, 2013 (the "Commencement Date ") and shall continue for ten (10) years from the
Commencement Date (the "Initial Term "), unless terminated earlier pursuant to Section 7 below.
Upon expiration of the Initial Term, this Agreement will automatically renew upon the same
terms and conditions as set forth herein, for an additional five (5) years (a "Renewal Term "),
provided that there shall not be more than two (2) Renewal Terms without prior written
agreement between the Parties.
4. Deliveries. EVCE shall deliver Ash to the Landfill at its own cost and in a manner
consistent with federal, state and County permits, rules and regulations relating to the Landfill.
Such permits, rules and regulations may be amended from time to time. While County is not
aware of any regulation that would prohibit it from accepting the Ash, EVCE acknowledges that
future federal, state or County permits, rules and regulations may prohibit County from receiving
Ash at the Landfill. In such event, County shall provide written notice to EVCE and this
Agreement shall immediately terminate.
5. 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 two million
dollars ($2,000,000) per injury, and the minimum aggregate amount of three
million dollars ($3,000,000). County shall be named as an additional insured.
C. Automobile Liability, Injury and Property Damage with a limit of two million
dollars ($2,000,000) per occurrence, 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 perform the delivery of Ash contemplated hereunder until all
required insurance has been obtained and certificates with the proper endorsements have
been filed with County.
6. Indemnification. EVCE shall indemnify, defend and hold County, and 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 a breach or default by EVCE
of its obligations pursuant to this Agreement or from any negligent act or omission of EVCE, its
employees, subcontractors and their employees to the full extent of its insurance policies
described in Section 5 hereof.
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7. Termination. Section 9 addresses termination in the event of default under this
Agreement. Notwithstanding the foregoing, either Party may terminate this Agreement, with or
without cause and without penalty, upon 180 days written notice to the other Party.
8. Conditional Upon Closing. This Agreement shall be and is hereby made expressly
contingent upon EVCE's commencement of operation of the Facility no later than June 30, 2015.
In the event EVCE has not commenced such operations by such date, then either Party may
terminate this Agreement by written notice to the other.
9. Default and Remedies. In the event EVCE fails to timely pay all fees and costs due to
County pursuant to this Agreement, then County shall provide written notice of such breach to
EVCE. In the event EVCE fails to cure such monetary default by paying all sums due County
within thirty (30) days of such notice, then County may elect to (i) terminate the Agreement,
and /or (ii) pursue all remedies available to it. For all non - monetary defaults and breaches
hereunder, 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 Section 9, the non - defaulting Party may elect to (a) terminate the Agreement, or
(b) pursue an action for specific performance of this Agreement; provided, however, that if a
non - monetary breach cannot be cured by the defaulting Party by diligent effort within the 60 day
period and the defaulting Parry has begun reasonable efforts to cure said breach, the defaulting
Party shall be granted such additional time as would be necessary to cure the breach with diligent
efforts.
County hereby agrees that in the event of any breach, default or other failure to perform by
EVCE under this Section 9,County shall provide notice in writing of such default to the agent
representing EVCE's lenders (the "Agent ") at such address indicated below (as such Agent may
be replaced from time to time upon written notice to County) and thereafter grants Agent the
same rights and timeframe to cure such breach or default as would be afforded to EVCE
hereunder after having received such notice.
10. 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, Colorado 81655
3 1 Pagc
To EVCE:
Eagle Valley Clean Energy
4626 N. 300 W., 3rd Floor
Provo, Utah 84604
Attention: Dean L. Rostrom
Email: dean @evergreencleanenergy.com
To Agent:
Deutsche Bank Trust Company Americas
60 Wall Street
New York, New York 10005
11. Assignment. This Agreement is assignable by EVCE for purposes of security
arrangements with its lenders, including the Agent, upon prior written notice to County, and
County hereby acknowledges, agrees and irrevocably consents in all respects to the pledge and
assignment to the Agent of all of EVCE's right, title and interest in, to and under this Agreement
and to the exercise of Agent's rights thereunder. Any other proposed assignment by EVCE shall
require the prior written consent of County.
12. 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.
13. Amendment. This Agreement may be amended only by an instrument in writing signed
by the Parties.
14. 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.
15. 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.
16. 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 of
its terms, covenants or conditions to such persons, entities or circumstances shall not be effected
thereby.
17. 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.
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18. Duplicate Origlna Agreement may This A be executed in two or more counterparts, each
y
of which shall be an original, but all of which together shall constitute one and the same
instrument.
19. 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 the laws of
the State of Colorado.
20. 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.
21. 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.
22. 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.
23. Entire Agreement. This Agreement represents the entire agreement between the Parties
and supersedes any oral or collateral agreements or understandings.
24. 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.
25. Public Contracts.
a) If EVCE (hereinafter "Consultant" for purposes of this section 25) 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
newly hired for employment to perform work under this Contract.
51>.f2.
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: // v v.dhs.gov /xprevprot /programs /gc 1.185221678150.shtm
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).
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.
61 PflA4C;
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]
71
Dated this 7A1 day of 1 -0)12 V #.`.-i2--•- t, 2013.
COUNTY OF EAGLE, STATE OF COLORADO
By and through its
Board o ounty Commi• 's Hers
By . 7 ��
Jon S ty, Chair
Attest: eAGL
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'i Vil
Clerk ° ? Do
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ICJ EAGLE VALLEY CLEAN ENERGY, LLC,
A Utah limite• iability company
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By: Dean Rostrom, Manager
STATE OF UTAH )
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COUNTY OF )
The foregoing instrument was acknowledged before me byl�. 0■ as
111 of Eagle Valley Clean Energy, LLC on this 11 4,day of
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2013.
My commission expires: 1/IL) C kQ
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1 COMM. EXP. 01 -12 -2016
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SCHEDULE 1
FUEL SPECIFICATIONS
All ash delivered by EVCE shall be derived from combustion of woody biomass material
meeting the following specifications unless otherwise agreed to by the Parties in writing:
a) Contaminations — Fuel shall include only clean lumber and wood waste only
from forestry, agricultural and urban wood sources. Clean lumber and wood
waste do not include wood products that have been pa: nted, pigment- stained, or
pressure treated by compounds such as chromate copper arsenate,
pentachlorophenol or creosote or manufactured wood products that contain
adhesives or resins (e.g. plywood, particle board, slake board and oriented
strand board) or incidental debris. Painted wood in :he form of trees marked
with tree marking paint or lumber with similar identify ing marks is allowed.
b) Dirt and Foreign Material Content — Average not to exceed 5.0% dry weight.
c) Ultimate fuel analysis - Fuel shall have the following ultimate fuel analysis:
Component Percent Dry Weight
Carbon 50.8 — 56.2
Hydrogen 5.50 — 5.70
Oxygen 38.4 — 39.2
Nitrogen 0.06 — 0.1C
Ash 1.50 — 2.1C
9 1 PL!-1,-
