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HomeMy WebLinkAbout6175RESOLUTION NO. 6175 A RESOLUTION APPROVING AN AMENDED AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND COLORADO DEVELOPMENTAL RESOURCE CORPORATION RELATING TO DEVELOPMENT AND SALE OF LANDFILL GAS BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: c.-(-p i f im 1 _ The Amended Agreement dated April 11, 1988 between Pueblo, a Municipal Corporation and Colorado Developmental Resource Corporation, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. SECTIUN 2 The President of the City Council is authorized and directed to execute said Agreement for and on behalf of the City and the City Cierk is directed to affix the seal of the City thereto and attest same. INTRODUCED: April 11, 1988 13V MIC HAEL OCCHIA Councilman ATTEST: APPROVED: erk Pre ident of the City Counci AMENDED AGREEMENT THIS AMENDED AGREEMENT entered into this 11th day of April, 1988 by and between PUEBLO, a Municipal Corporation (herein called "City "), and COLORADO DEVELOPMENTAL RESOURCE CORPORATION, a Colorado Corporation (herein called "the Company "), W I T N E S S E T H: WHEREAS, the City is the owner of property located in Pueblo County, Colorado, which is known as the Pueblo Solid Waste Land- fill (herein called "Landfill "), located off the Beulah Highway No. 76, which property is more specifically described in Appendix A hereto; and WHEREAS, the City Council has invited proposals for the development, recovery and sale of landfill gas at Landfill; and WHEREAS, the Company has presented a proposal to develop, recover and market landfill gas and construct facilities at Landfill; and WHEREAS, Company and City did enter into an agreement dated October 27, 1986 relating to landfill gas recovery and Company has requested that certain provisions of the Agreement be modified and amended; and WHEREAS, the parties have agreed to cancel the agreement of October 27, 1986 and enter into this Amended Agreement (herein "Agreement "). NOW, THEREFORE, in consideration of the foregoing and covenants and conditions set forth hereinbelow, the parties agree as follows: 1. Landfill Gas Recovery Operation. The City of Pueblo, is the owner of the Landfill and subject to the conditions set forth herein, grants to the Company and its independant contrac- tors the right of entry upon the Landfill and to Company the exclusive right to: mine and extract landfill gas; to. develop, construct and operate landfill gas processing, including without limitation, electrical generation facilities; and to sell landfill gas, heat, gas, electricity and other products derived from land- fill gas (herein "Products "), at Landfill (herein "Project ") for a period of twenty (20) years from Commencement Date or the date of City's written approval of Company's final engineering design of the Project, whichever occurs first, unless this Agreement shall have been extended or terminated as herein provided. The rights granted herein shall be subject to the continued use of the Land- fill as a solid waste disposal site and facility, all existing agreements concerning the Landfill, including without limitation City's agreements with Zupan Enterprises, Inc. dated February 24, 1974, February 1, 1985 and July 13, 1987, the terms and conditions of City's Certificate of Designation, and to all easements, reservations and restrictions of record and public roads. Company agrees to diligently and in a timely fashion undertake such development, construction, and operation of the Project and make payments to City as provided herein. If Company is not in default hereunder, Company shall have the option to extend this Agreement for two additional consecutive five year periods upon the same terms and conditions, except the option to renew hereby granted, for an annual minimum payment of $50,000 for the first five year extended period and $75,000 for the second five year extended period. The option shall be exer- cised by Company giving written notice to City at least twelve months prior to the expiration of the original twenty year term or first five year extended period, whichever is applicable. If Company shall fail to timely give the required notice to City, Company shall be deemed to have waived the option to extend hereby granted and this Agreement shall terminate upon the last day of the original twenty year period or first five year extended period, whichever is applicable. 2. Performance Schedule (a) Within 30 days from date hereof, Company shall furnish City with a statement of financial resources and a state- ment of qualifications. (b) Within 6 months after City notifies Company in writing that Zupan Enterprises, Inc. or any other operator at the Landfill including the City (herein "Operator ") has ceased to receive solid waste for disposal at the Landfill or any designated portion thereof (herein "Commencement Date "), Company shall submit to City a Feasibility Analysis, Preliminary Design Report, and Financing Plan. I. Feasibility Analysis shall describe Company's proposed development plan, construction requirements, electrical generation facilities, contain a marketing analysis, cost analysis and sufficient other information to determine economic and techni- cal feasibility of the Project. II. The Preliminary Design Report shall generally describe detailed configuration of Project facilities, a prelimi- nary site plan, engineering design criteria, construction cost estimate, environmental impact assessment, appropriate test data and soil studies. The Preliminary Design Report shall also contain a description of applicable regulatory requirements, identification of the regulatory agencies, and a timetable for obtaining all necessary permits, licenses and approvals from any federal, state or local bodies and agencies with jurisdiction. III. The Financing Plan shall describe in detailed manner the Company's plan for financing all stages of construction and performance necessary for the Project. The Financing Plan dM shall include detailed description of sources of financing and include letters of intent to commit funds by lenders, descriptions of collateral, commitments or letters of intent with respect to purchase of saleable gas or electricity and all other items sufficient to demonstrate Company's financial ability to fully perform under this Agreement. (c) If, on the basis of the Feasibility Analysis, Preliminary Design Report and Financing Plan, Company believes the Project to be feasible, it shall request from City authorization to proceed with engineering design. The City shall review the documents submitted by Company and, within 60 days after receipt of the documents, either: (i) authorize Company to proceed with engineering design, (ii) request revision of the documents and resubmittal, or (iii) give written notice to Company of City's intent to terminate the agreement if - the submitted documents in the opinion of City, do not demonstrate feasibility of the Project or Company's financial capability to construct the Project and perform its obligations under this Agreement. If City fails to otherwise notify the Company within said 60 -day period, authoriza- tion to proceed shall be deemed to have been given. If City gives notice to terminate under (iii) above, Company shall have 30 days after date of such notice to demonstrate, to the reasonable satis- faction of the City, the Project's feasibility and Company's financial capability. If Company fails to so demonstrate the Project's feasibility and Company's financial capability within such 30 -day period, this Agreement shall terminate without notice. (d) Unless this Agreement has been terminated by the City pursuant to subparagraph (c)(iii) above, Company shall complete and submit its final engineering design for the Project to City and obtain City's approval thereof pursuant to paragraph 11 hereof within 12 months after Commencement Date. Company shall thereafter diligently proceed with construction of the Project and complete same not later than 18 months after Commencement Date. Company shall begin operation of the Project not later than 24 months after Commencement Date. (e) Nothing contained herein shall prevent Company from proceeding with its final engineering design for the Project prior to Commencement Date. 3. Development, Operation and Marketing Costs It is understood that Company shall bear all costs of the Project, including but not limited to developmental, engineering, regula- tory, operation, marketing and maintenance costs, and all fees and expenses relating thereto. Company may, subject to and in con- formity with all applicable laws and regulations and prior regulatory approval, if required, dispose in a safe and harmless manner the spoils and residues from its activities, including mining and extracting landfill gas and development, construction and operation of Product processing facilities, at Landfill with- out fee or charge by City other than the payments required herein but at Company's sole cost and expense. -3- 4. Annual Payment In consideration for granting the right to develop, maintain and operate the Project at Landfill, Company shall annually pay the City a sum equal to fifteen percent (15 %) of all Gross Sales or a minimum payment of twenty -five thousand dollars ($25,000), whichever is greater, (herein "Annual Payment "). Payment of the first Annual Payment shall commence upon the earlier of (i) Commencement Date; or (ii) the date of City's written approval of Company's final engineering design of the Project. Annual Payments shall continue to be payable for each year subsequent to the first Annual Payment during the effective period of this Agreement. "Gross Sales" is defined, for the purpose of this Agreement, as all revenues received from all sales of Products, and other activities conducted, at or from the Landfill without deduction for cost of material, labor or other expenses. City agrees that Company has the right to use, free or charge, landfill gas and electricity produced by Project which is required for the operation of the Project. Company's obligation to pay the Annual Payment to City hereunder is absolute and unconditional and the Annual Payment shall not be offset, abated, reduced or withheld for any cause or reason whatsoever. 5. Payment Schedule (a) The Annual Payment shall be made in monthly installments of 15% of the previous month's Gross Sales or $2,083.33, whichever is greater, and shall be made by Company no later than ten days after the end of the month for which the installment is payable. The Company shall furnish the City with a copy of the calculations and the information used in calculating the monthly installment so paid. On or before April 1 of each year after the Commencement Date, the Company shall provide the City with a report certified by the President and Treasurer of Company which details the actual Gross Sales in the previous calendar year. All payments shall be made to the City Director of Finance. The City Manager, or his authorized representative, shall have access to the books of the Company for the purpose of auditing or checking to insure that the Annual Payment has been correctly computed and paid. Upon verification of the report by City, the Annual Payment shall be adjusted. Any underpayment discovered shall be due and payable by Company and any overpayment shall be refunded to Company. (b) Late Charge on Unpaid Payments. All payments not paid by Company within 15 days after the same shall become due shall be subject to a late payment charge in the amount of one and one -half (1.5) percent of the unpaid payment for each calendar month, or fraction thereof, until paid. Such late charges shall constitute additional required payments under this Agreement, and failure of Company to make such payments to City when due shall be construed as a violation of Company's obligation to make payments. 6. Annual Payment is Payment in Lieu of Other Fees. So long as the Company performs its obligations under this Agreement, -4- including payment of the Annual Payment, the Company will be exempt from payment of any additional license fees or charges to the City relating to operation of the Project at the Landfill, but payment of the annual fee does not exempt the Company from any lawful taxation upon its property, from sales and use taxes, excavation permit fees and building permit charges, or uniform charges for the construction of underground or overhead facilities that are generally applicable to contractors performing similar work. 7. Security Company shall deliver to City a security deposit in a sum equal to the minimum annual payment to secure full and faithful performance by the Company of all its obliga- tions under this Agreement. The security deposit shall be paid and delivered to City on or before the earlier of (i) Commencement Date, or (ii) the date of City's written approval of Company's final engineering design of the Project. The security deposit shall be returned to Company within 30 days after termination of this Agreement only if Company has properly performed hereunder. 8. Insurance. The Company shall not commence work at the Landfill under this Agreement until it has obtained, at its own expense and without cost to the City, all insurance required under this paragraph and such insurance has been approved by the City's Director of Finance. The Company shall maintain such insurance during the effective period of this Agreement and pay all premiums or charges therefor as same become due. Insurance. A. General Public Liability and Property Damage The Company shall secure and maintain General Public Liability and Property Damage Insurance issued to and covering the liability of the Company with respect to all work performed by it and all of its subcontractors under the Agreement, to be written in amounts not less than $150,000 for any injury to one person in any single occurrence and not less than $400,000 for injury to two or more persons in any single occurrence, and $400,000 for each occurrence for property damage. This policy shall have all necessary endorsements to provide coverage including contractual coverage but without exclusion for explosion and collapse hazards and underground hazards. The limits of coverage contained herein are required minimums; if at any time the limits of liability of public entities set forth in the Colorado Governmental Immunity Act ( "Act ") should increase by statutory amendment to an amount or amounts greater than the limits of coverage provided herein, Company is requied to increase the limits of coverage to such greater sum as the Act may provide, or, at Company's option, Company may terminate this Agreement. B. Automotive Liability Insurance. Whenever the work covered by this Agreement shall involve the use of automotive or vehicular equipment, the Company -5- shall secure and maintain during the period of the Agreement Vehicle and Automotive Liability and Property Damage Insurance. This insurance shall be written with limits of liability for any injury to one person in any single occurrence of not less than $150,000 and for any injury to two or more persons in any single occurrence of not less than $400,000, and $400,000 for each occurrence for property damage. This insurance shall meet requirements of Colorado law, shall include uninsured /underinsured motorist coverage and shall protect the Company from any and all claims arising from the use both on and off the Landfill of automobiles, trucks, tractors, backhoes and similar equipment whether owned, leased, hired or used by Company. C. Workmen's Compensation Insurance The Company shall secure and maintain Workmen's Compensation Insurance, including Occupational Disease Provisions, covering the obligations of the Company in accordance with the provisions of the Workmen's Compensation Act, as amended, of the State of Colorado. If any class of employee engaged in hazardous work under this Agreement at the Landfill is not protected by the Workmen's Compensation statute, the Company shall provide, and similarly shall cause each subcontractor to provide, special insurance for the protection of such employees not otherwise protected. D. Any Subcontractor Performing Work for the Company Any subcontractor performing work for the Company under this Agreement shall provide certificates of insurance protection to the Company and to the City of Pueblo, Colorado, of the same type and in the same amounts as required from the Company. E. The Insurance Coverage The insurance coverage enumerated in the above subpara- graphs constitutes the minimum requirements and said enumeration and shall in no way lessen or limit the liability of the Company under the terms of this Agreement. The Company shall procure, and maintain, at its own cost and expense, any additional kinds and amounts of insurance that, in its own judgment, may be necessary for its protection in the performance of this Agreement or work on the Project. F. Certificates of Insurance Certificates of insurance for workmen's compensation, public liability and property damage and automotive liability shall be filed with the City prior to the execution of this Agreement and on an annual basis thereafter. Each policy of insurance shall contain a provision that it shall not thereafter be cancelled, permitted to expire, or be changed without 30 days prior written notice to the City. Q. 9. Licenses. Company agrees to obtain at its expense and in a timely manner, all licenses, permits, variances and approvals from all federal, state and local public entities and agencies with jurisdiction, and which may be required to develop and operate the Project. 10. Property Taxes and Assessments. Company shall promptly pay and discharge as they become due and before delinquency, all real estate taxes, personal property taxes, assessments, charges, liens, levies or excises, whether general or special, ordinary or extraordinary, of every name, nature and kind, which may be levied, charged or imposed, or which may become a lien or charge against the Landfill or any part thereof, the interest of Company, any property of Company, or any improvements constructed by Company. 10.1 Eminent Domain A. Condemnation. If during the period of this Agreement, the Landfill, the Project, improvements to the Landfill or Project or any portion of the Landfill or Project are condemned or taken by any governmental authority, or by any corporation having the power of eminent domain, City and Company agree that any condemnation award shall be equitably apportioned between them, to reflect their respective interests in the Landfill and Project. B. Taking of Project or Landfill; Termination of Agreement If the whole of the Project or Landfill shall be taken or condemned as aforesaid, or if such a substantial part thereof is taken as shall result in the portion of the Project or Landfill remaining being no longer operable as an economically useful unit to the conduct of Company's business, then this Agreement shall terminate as of the effective date of the condemnation. Such termination shall, however, be without prejudice to the rights of Company to recover from condemnor compensation and damages caused by the condemnation or taking. C. Rights of Mortgagee, or Transferee Any mortgagee, assignee or transferee of the Company's rights under this Agreement shall be a proper party to any condemnation proceeding. All rights of any such mortgagee, assignee or transferee shall derive exclusively from the rights of the Company herein, and the agreements between the Company and such mortgagee, assignee or transferee. D. Right to Contest Award. In the event either City or Company shall desire to contest the amount of the award offered by a condemning authority while the other party is willing to accept it, the unwilling party may make such contest, including any litigation necessary or desirable for such purpose, provided that it shall hold the willing party completely harmless from any loss caused thereby, including any reductions in the final award, -7- all costs and expenses incurred in the contest, and interest at the rate of ten percent (10 %) per annum on any sums that otherwise would have been paid to the willing party at an earlier date. Prior to undertaking such contest, the party making the same shall furnish to the other an indemnity bond or other security accept- able to the other in any amount equal to the settlement offered or obtained plus a reasonable estimate for costs, expenses and loss of interest, which bond shall be conditioned on the successful prosecution of such contest and the willing party being protected from any loss occasioned thereby. In the event that there is any gain realized by such contest, the gain will be paid solely to the contesting party and the willing party will have no right to any part of such gain except as set forth above. 11. City Approval of Construction and Design Prior to construction of any transmission lines, generating plant, build- ing, substation or similar structure within the Landfill, the Company shall furnish to the City the plans for such facilities, including all architectural, engineering, and landscaping designs and plans. In addition, the Company shall assess and report on the impact of its proposed construction on the Landfill and environment. Such plans and reports may be reviewed by the City for compliance with all applicable laws, including but not limited to building and zoning codes, air and water pollution regulations, and Certificate of Designation requirements, and to insure that aesthetics and good planning principles have been given due consideration, and that adverse impact on the environment has been minimized. City shall within 45 days after receipt of Company's plans and reports either approve the plans or request reasonable changes based on the above criteria. If City does not approve the plans or request changes within the 45 -day period, the plans shall be deemed approved. The Company shall make reasonable changes at City's request based on the above criteria. Any review or approval of plans by City or similar activity conducted by City under this Agreement is for the separate benefit of City and shall in no way be construed as a representation that the plans are adequate for the purpose for which they are intended or in compli- ance with applicable federal, state or local law or regulation. Neither Company nor any third party shall be entitled to rely in any manner on any such review or approval by City. Review and approval of any plans by City shall not relieve Company from any of its obligations under this Agreement or under applicable federal, state or local laws or regulations. 12. Responsibility for Landfill Gas Odor and Migration Control Systems Company shall assume the responsibility for control of odor. Company shall install and operate a gas monitor- ing system for the disposal areas of the Landfill. In the event of gas migration, Company shall install within the boundaries of the Landfill control and recovery wells as may be needed. 13. Cooperation with Landfill Operator. Company acknowl- edges and agrees that this Agreement and the rights and privileges of Company granted hereunder are secondary and subordinate to the W:1: use of the Landfill as a solid waste disposal site and facility. Company shall not, without the prior written approval of City, construct or install the Project or any portion thereof on areas of the Landfill which have not been permanently closed by Operator or City and for which City has not issued written notification of permanent closure. Company shall fully cooperate and not inter- fere with the solid waste disposal operations, site reclamation and monitoring activities conducted by the Operator or City at the Landfill. It shall be the responsibility of Company to coordinate its work and activities with the Operator or City to avoid disruptions, delay or interference with the Operator's or City's work and activities at the Landfill. 14. Termination If either party shall be in default hereunder or shall fail or refuse to perform any provisions of this Agreement required on its part to be performed, the other party may terminate this Agreement by giving to the defaulting party 30 days' prior written notice of termination specifying the default, failure or omission, in which event this Agreement shall automatically terminate unless the defaulting party shall remedy the specified default or correct the specified failure or omission within 30 days after receipt of such notice or, if such default, failure or omission cannot be remedied by the payment of money under paragraphs 4 and 5 herein and cannot with due diligence be wholly remedied within such 30 -day period, unless the defaulting party shall within said 30 day period actively commence action to remedy said default, failure or omission and thereafter diligently pursue such corrective action provided that such default, failure or omission shall in any event by corrected and remedied within 120 days after notice thereof. 15. Site Conditions and Hazardous Materials. (a) Company agrees that it has informed itself of the conditions under which Company's work is to be performed, the existing site and ground conditions and all other matters concerning or affecting the Landfill and the Project. To the extent any subsurface testing, logs or information has been provided to Company by City, City disclaims the accuracy thereof and shall not be held responsible for any variance in conditions or unforeseen conditions encountered during Company's work on the Project or performance under this Agreement. (b) City is unaware of the presence of any hazardous wastes or toxic substances regulated under the Resource Conserva- tion and Recovery Act ( "RCRA ") and implementing regulations on, under, or upon the Landfill. Asbestos in potentially friable form may be located on, under, or upon the Landfill. In the event any such wastes or asbestos is uncovered or discovered by Company during the performance of the work and such wastes or asbestos is required by applicable law, regulation or regulatory order to be removed, disposed, treated or encased, Company shall be responsi- ble for proper removal, disposal, treatment or encasement, as the case may be. Company further agrees to take at its expense all M actions necessary to protect its employees, the public and all third parties from exposure to, or the hazards of, any such hazardous wastes or asbestos. (c) In the event of any release of hazardous wastes or asbestos by Company, Company shall at its expense provide for mitigation and cleanup in accordance with all applicable laws and regulations and as ordered by the Colorado Department of Health, and Company shall indemnify and hold City harmless from all fines, claims, demands and judgments, including costs and attorney fees, arising therefrom or related in any manner thereto. 16. Indemnification. Company agrees to indemnify and hold harmless the City, its officers, agents and employees from and against any and all suits, demands, claims, costs or expenses (including reasonable attorney fees) which may arise or be asserted against City, its officers, agents or employees by reason of any act or omission of Company, its officers, employees, agents or contractors, whether occurring on or off the Landfill, or the use of the Landfill by Company, or any activities conducted on the Landfill by Company or its officers, employees, agents or contractors, or the construction, maintenance or operation of the Project, or Company's performance under this Agreement. 16.1 Force Majeure. If either Company or City is rendered unable by force majeure to carry out its obligation under this Agreement, other than the obligation to make money payments under paragraphs 4 and 5 hereof, that party shall give to the other party prompt written notice of the force majeure with reasonably full particulars concerning same. Thereupon, the obligations of the party giving the notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected party shall use its best efforts to diligently remove the force majeure as quickly as possible. The term "force majeure" as used herein shall mean a cause or causes which is not reasonably within the control of the party claiming suspension including, but not limited to, acts of God, acts of war, riot, fire, explosion, accident, flood, or sabotage; unavailability of fuel, power or raw material; judicial, adminis- trative or governmental laws, regulations, rules, requirements, orders or actions, including modifications, cancellation, suspension or revocation of any permit, license, or other authorization necessary for the operation of the Project as herein contemplated; injunctions or restraining orders; failure of any governmental body to issue or grant licenses, permits or other authorizations necessary for the operation of the Project as herein contemplated; national defense requirements; labor strikes, lockouts or injunctions. In the event that a force majeure suspends the performance of a party's obligations under this Agreement for a continuous period of more than nine (9) months, either party may terminate this -10- Agreement upon thirty (30) days prior written notice to the other party. 17. Removal of Improvements Upon abandonment, termination, or cancellation of this Agreement as provided herein, at City's option, Company shall within 120 days, at its own expense, remove all structures and improvements placed on Landfill by or on behalf of Company, and shall restore the site of the Project to substan- tially its original condition unless otherwise specified in writing by the City. If Company fails to remove all such struc- tures or improvements within such period, they shall become the property of the City and may be removed and disposed of by the City and in such event, Company, for a period of 24 months after abandonment, cancellation or termination of this Agreement shall be responsible for the full cost of their removal and restoration of the site of the Project to substantially its original condition. 18. Contract Obligation This Agreement constitutes a valid and binding contract between Company and the City of Pueblo. In the event that the annual fee specified in this Agreement is declared illegal, for any reason by any court or other proper authority, the Company shall nevertheless be contractually bound to pay the City on the same schedule as provided herein. 19. Modifications; Waiver No act or omission of any employee or agent of the City shall constitute a waiver or modification of any term of this Agreement, nor estop the City from enforcing any term of this Agreement. No verbal agreements or conversations with any agent or employee of the City, either before or after execution of this Agreement, shall affect or modify any of the terms or obligations of this Agreement. All modifications to this Agreement shall be made in writing and shall become effective only upon approval by Resolution of the City Council of City. 20. Subcontracts And Subcontractors A. Subcontractors 1. The Agreement, or any part thereof, shall not be sublet by Company, except with the written consent of the City, which consent will not be unreasonably withheld. 2. The Company agrees to be fully responsible to the City for the acts or omissions of its subcontractors and of anyone employed directly or indirectly by them. 3. Nothing contained in the contract documents shall create any contractual relationship between any subcontractor and the City. 4. The Company agrees to bind every subcontractor (and every subcontractor of a subcontractor) by the terms of this -11- Agreement as far as applicable to his work, unless specifically noted to the contrary in any subcontract which shall first be approved in writing by City. B. Assignment of Contract. No assignment of this Agreement, any part thereof, or right thereunder by the Company shall be valid or enforceable against the City unless the Company has tirst obtained City's prior written consent thereto. Such written consent by the City shall not relieve the Company of its obligations under the terms of this Agreement. 21. Independent Contractor It is expressly agreed and understood that the Company is, in all respects, an independent contractor and an independent party for the purposes of this Agreement, notwithstanding that in certain respects the Company is bound to follow the directions of the City or an agency thereof. The Company is in no respect an agent, servant or employee of the City. 22. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of Colorado. 23. Disputes Notwithstanding any agreement or provision of law providing for arbitration of disputes, all unresolved claims, disputes or controversies related to or arising out of this Agreement or performance hereunder shall be settled in a Colorado court of competent jurisdiction. 24. In the event Company defaults in the performance of any of the terms, covenants, agreements or conditions of this Agree- ment, including but not limited to failure to make payments as provided herein, and City places enforcement of this Agreement, or the collection of any amounts due hereunder, or to become due hereunder, in the hands of an attorney or the City Attorney, or files suit upon the same, Company agrees to pay City its reason- able attorney fees and costs incurred. 25. Notice. Notice shall be deemed given when mailed by first class United States Mail to the City, addressed to: The City of Pueblo c/o City Manager 1 City Hall Place Pueblo, Colorado 81003 and to Company, addressed to: Colorado Developmental Resource Corporation c/o Mr. Jack R. Cohen, President 2323 South Troy St., Suite 112 D Aurora, Colorado 80014 -12- or, to such other address as either City or Company shall designate in writing to the other party. 26. Time of Essence. In the performance of all the terms, provisions and conditions of this Agreement, time shall be of the essence. 27. Remedies Cumulative. All of the rights and remedies of City and Company under this Agreement shall be deemed cumulative and no one exclusive of the other, or of any other remedy conferred or allowed by law or equity. 28. City's Right to Enter City reserves the right to enter at any reasonable time upon the Landfill and any structures or facilities constructed thereon to inspect the Landfill and such structures and facilities. 29. Parties Bound. ''his Agreement is binding on and shall inure to the benefit of the City and Company and their respective successors and approved assigns. 30. Complete Agreement This Agreement constitutes the complete understanding and agreement of the parties regarding the subject matter hereof and supersedes any and all prior oral or written agreements, understandings, or representations regarding the subject matter hereof. The Agreement dated October 27, 1986 between City and Company is cancelled and neither party shall have any rights, remedies or obligations thereunder. IN WITNESS HEREOF, the parties have caused this Agreement to be duly approved and executed as of the date first written above. PUEBLO, A MUNICIPAL CORPORATION [S E A L] Pr sident of the City Council ATTEST: j 7 y"'4c"i e Ir COLORADO DEVELOPMENTAL RESOURCE CORPORATION President ATTEST: i S c re a y -13- [S E A L] TJ 23. 24 APPENDIX "A" The S 1/2 of the NW 1/4, the N 1/2 of the S 1/2, and the S 1/2 of the SW 1/4, all in Section 18, Township 21 South, Range 65 West of the 6th P.M.; and a portion of the E 1/2 of the E 1/2 of Section 13, Township 21 South, Range 66 West of the 6th P.M. being the East 600 feet of the South 2,975 feet of said Section 13; Pueblo County, Colorado, containing approximately 361 acres, excepting existing roads and rights of way and subject to easements, restrictions, reservations and rights of way of record. City of Pueblo THOMAS E. JAGGER City Attorney 127 West, First National Bank Bldg. MEMORANDUM PUEBLO, COLORADO 81003 TO: Members of the City Council and City Manager FROM: City Attorney DATE: March 21, 1988 RE: Landfill Gas Recovery, South Landfill The City and Colorado Developmental Resource Corporation (Company) entered into an Agreement October 27, 1986 granting to Company the right to construct, develop and operate landfill gas recovery and electrical generating facilities at the South Landfill. The Agree- ment anticipated that the gas recovery activities and solid waste disposal activities could take place in conjunction with each other at the South Landfill and that gas recovery activities would imme- diately commence on the closed landfill areas of the South Landfill. However, the Company claims that because of the changes in solid waste disposal activities and City's subsequent (July 1987) agree- ment with Zupan Enterprises, Inc., the Company has been unable to proceed with its development plans and has requested modification to the Agreement. Company contends that at the time the Agreement was entered into Company understood that the solid waste landfill operations at the South Landfill would cease in 1987, the South Landfill would no longer be used as a solid waste disposal site, and Company could proceed with its development plans. City disputes Company's contentions but has indicated a willingness to submit an Amended Agreement to the City Council. The Amended Agreement specifically states the Company's right to conduct landfill gas recovery activities are secondary and subor- dinate to the use of the South Landfill as a solid waste disposal site and facility. Company also agrees that it will construct its gas recovery facilities only on areas of the South Landfill which have been permanently closed and for which City has issued written notification of permanent closure. Company's minimum annual payment starts when City notifies Company of permanent closure and the 20 -year term of the Amended Agreement commence upon such notice. Company may, however, proceed with its development plans and engineering prior to any such notice given by the City. The execution of the Amended Agreement will resolve the present dispute and protect the City's primary right to continue to use the South Landfill as a solid waste disposal site and facility. Thomas E 'Jagger