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HomeMy WebLinkAbout67370 RESOLUTION NO. 6737 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND FUEL RESOURCES DEVELOPMENT CO. RELATING TO METHANE GAS RECOVERY AND PROCESSING AT THE SOUTHSIDE LANDFILL AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Second Amended Agreement dated June 11, 1990 between Pueblo, a Municipal Corporation and Fuel Resources Development Co. relating to methane gas recovery and processing at the southside landfill, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute the Agreement in the name and on behalf of the City and the City Clerk is instructed to affix the seal of the City thereto and attest same. SECTION 2. This Resolution shall become effective upon final passage. INTRODUCED: May 13, 1991 ATTEST: i y Clerk By KENNETH HUNTER Councilperson APPROV D: Pre nt of the City Council TJ 51.56 c SECOND AMENDED AGREEMENT THIS SECOND AMENDED AGREEMENT is entered into as of the 11th day of June, 1990, by and between Pueblo, a Municipal Corporation (herein called "City "), and Fuel Resources Development Co., a Colorado Corporation (herein called "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 Landfil and is specifically described in Exhibit "A ", attached hereto ( "Landfill "); and WHEREAS, the City Council invited proposals for the develop- ment, recovery and sale of landfill gas at Landfill; and WHEREAS, Colorado Developent Resource Corporation (CDRC) presented a proposal to develop, recover and market landfill gas and construct facilities at Landfill; and WHEREAS, CDRC and the City did enter into an agreement dated October 27, 1986 and an amended agreement dated April 11, 1988, relating to landfill gas recovery; and WHEREAS, the City approved an assignment of all of CDRC's rights under the amended agreement to Environmental Technologies International, Inc. ( "ETII ") by Resolution No. 6251, adopted on July 25, 1988; and WHEREAS, ETII has requested that certain provisions of the amended agreement be further modified and that the City approve an assignment of all ETII's rights thereunder, as modified, to the Company; WHEREAS, the City has agreed to ETII's assignment of the amended agreement dated April 11, 1988, to the Company, and to enter into this Second Amended Agreement (herein "Agreement ") with the Company, NOW, THEREFORE, in consideration of the foregoing and cove- nants and conditions set forth herein below, the parties agree as follows: 1. Landfill Gas Recovery Operation A. The term "Landfill Gas" shall mean all methane, carbon dioxide, and other hydrocarbon substances and materials existing on, in or under the Landfill from time to time whether part of the surface or mineral estate and whether created by natural, artificial or biomass processes, occurring before or after the City acquired the Landfill, including without limita- tion, all methane, carbon dioxide and hydrocarbons whether t existing, presently or in the future, in a liquid, solid or gaseous state. B. Subject to the conditions set forth herein, the City grants to the Company all of City's right, title and interest in and to Landfill Gas located on, in or under or which may now or hereafter be produced on or from the Landfill; together with all necessary rights of entry, access, ingress and egress, upon, under and through the Landfill and the exclusive right to: (1) explore, drill and extract, recover, collect, gather, transport, produce, treat, process, separate, manufacture and synthesize Landfill Gas located in or under or which may be produced on or from the Landfill; (2) develop, construct, erect, install, operate, maintain, modify and remove, all plants, offices, facilities, line of pipe, towers and other structures or facilities necessary and convenient to the full enjoyment by the Company of the rights herein granted, including, without limitation, generating, processing, reforming, manufacturing, synthesizing, treating, heating, cooling, gathering, collecting, compressing, transporting and processing plants, substations, buildings, lines and facilities; and (3) sell Landfill Gas or any constituents thereof, or products derived therefrom, including, without limitation, gas, heat, liquid hydrocarbons, wax, olefin, electricity and other minerals, products or byproducts derived from or contained in Landfill Gas (herein "Products") at the Landfill for so long as Landfill Gas or Products may be recovered or produced on or from the Landfill or until the Company abandons, in writing, all of its rights under this Agreement, whichever first occurs. Notwith- standing any provision in this Agreement to the contrary, Company shall not without the prior written consent of City inject, add or flow water or permit the injection, adding or flowing of water into the Landfill. C. The rights granted to Company herein are subject to: (i) the continued use of the Landfill as a solid waste disposal site and facility, including without limitation, all existing agreements with Zupan Enterprises, Inc. and such addi- tional agreements for the use of the Landfill as a solid waste disposal site and facility as the City may subsequently enter into and all extensions, renewals and modifications thereto, provided, that the City shall not modify or enter into any such agreement in a manner which interferes with Company's rights hereunder without Company's written consent, which consent will not be unreasonably withheld, (ii) the City's Certification of Designation and amend- ments and modifications thereto, (ii) the terms and conditions of Company's application documents for and the Special Use Permit No. 694 issued by the County of Pueblo, State of Colorado with respect to Company's use of the Landfill for methane gas gathering and processing, attached as Exhibit "B" (the "Special Use Permit ") (Company agrees that upon annexation of the Landfill to the City, City may enforce the terms and conditions of the Special Use Permit), and (iii) all easements, reservations and restrictions of record and public roads. IWZ t D. Absent approval of a Subsequent Project in accordance with the procedures described in Section 2 below, Company shall not exercise any of its rights granted hereby within and with respect to Subsequent Project I Area and Subsequent Project II Area as shown on Exhibit "C" attached hereto, and until approval of a Subsequent Project, Company will limit its Landfill Gas extraction and procession operations to the Initial Project Area, as shown on Exhibit "C" attached hereto. Notwithstanding anything to the contrary contained herein, if Company has not received final engineering design approval in accordance with paragraph 2(E) below for a Subsequent Project on or before May 14, 2000, all rights granted to Company within and with respect to Subsequent Project I Area and Subsequent Project II Area shall cease and terminate.. If Company obtains such approval for a Subsequent Project for either Subsequent Project I Area or Subsequent Project II Area on or before May 14, 2000, all rights granted to Company within and with respect to the other Subsequent Project Area shall cease and terminate on May 14, 2005 unless Company receives such approval for a Subsequent Project in such Subsequent Project Area on or before May 14, 2005. E. Company will diligently and in timely fashion undertake the development, construction and operation of the Initial Project and make payments to City as provided herein. 2. Performance Schedule. A. The "Initial Project" shall include all operations, processes, buildings, structures, lines of pipe, gas recovery wells, water wells, trenches, roads, and other facilities or systems described in the Special Use Permit, and all subsequent revisions or supplements thereto approved by the City, including, without limitation, all plans, drawings and other materials included in the final engineering design approved by the City pursuant to paragraph 2(E) below. A "Subsequent Project" shall include all operations, processes, buildings, structures, lines of pipe, wells, trenches, roads, and other facilities or systems shown in a Company's proposal to be submitted to the City in accordance with paragraph 2(C) below, and all subsequent revisions or supplements thereto approved by the City, including, without limitation, all plans, drawings and other materials included in the final engineering design approved by the City pursuant to paragraph 2(E) below. The "Project" shall include the Initial Project and all Subsequent Projects then existing or proposed. B. The City acknowledges that it has approved the final engineering design for the Initial Project in accordance with the provisions of paragraphs 2(C) below and that Company has commenced construction of the Initial Project. Company shall substantially complete the Initial Project on or before August 1, 1991. C. If the Company desires to proceed with any Subse- quent Project, it shall submit (1) a preliminary design report -3- which generally describes the detailed configuration of the facilities included in the proposed Subsequent Project, (2) preliminary site plan, (3) engineering design criteria, (4) construction cost estimate(s), (5) appropriate test data and soil report(s), (6) report describing the impact on the Landfill and environment and the permits, licenses and approvals Company intends to obtain from Federal, State and local governmental authorities and (7) appropriate timetable flow charts. The City shall review the documents submitted by the Company and, within forty -five (45) days after receipt of the documents, will either: (i) authorize the Company to proceed with the final engineering design, (ii) request revision of the proposal; or (iii) give notice to the Company of its rejection of the Subsequent Project. The City shall not unreasonably withhold approval of any Subsequent Project. If the City fails to otherwise notify the Company in writing within said forty -five (45) day period, authorization to so proceed shall be conclusively deemed to have been given. Any denial of such authorization to proceed shall include conditions which, if satisfied, will allow the proposed Subsequent Project to be approved. D. The Company shall use its best efforts to investigate the potential for, and if feasible and economic, in the Company's sole opinion, to propose a Subsequent Project which will include the construction of digesting and mulching facilities at the Landfill; provided that the Company shall not be required to propose, implement or install any of the systems or facilities necessary to segregate the substances that would be consumed in said digesting and mulching facilities. Notwithstanding the foregoing, nothing herein shall obligate the Company to proceed with such proposal if the Company determines, in its sole discretion and at any time, that it would not be in the Company's best interests to so proceed. No decision by the Company not to so proceed shall operate or be construed as any waiver of any of the exclusive rights granted to the Company herein. E. The final engineering design for the Initial Project and any Subsequent Projects shall include all architectur- al, engineering and landscaping plans and designs for all facilities including water wells, and a report assessing the impact, if any, of the proposed Project on the Landfill and environment. The final engineering design shall comply with all applicable laws, including but not limited to building and zoning codes, air and water pollution regulations, the Special Use Permit and the City's Certificate of Designation requirements and shall ensure that aesthetics and good planning principles have been given due consideration and that adverse impacts on the environment and Landfill have been minimized or reasonably mitigated. The City shall, within forty -five (45) days after submittal, either approve the final engineering design submitted by the Company, disapprove the design or request changes based on the above criteria. If the City does not disapprove the plans or request changes, in writing, within the 45 -day period, the final engineering design shall be deemed approved. The Company shall -4- make reasonable changes at the City's request based on the above criteria, but the City shall not unreasonably withhold such approval. F. Any review or approval of plans by the City for the Initial Project or any Subsequent Project or similar activity conducted by the City under this Agreement is for the separate and sole benefit of the City for the primary purpose of protecting the landfill and solid waste disposal operations conducted thereon, and shall in no way be construed as a representation or approval that the plans are adequate for the purpose for which they are intended (other than for the purpose of obtaining approval(s) of the City hereunder) or in compliance with applicable federal, state or local law or regulation. No third party shall be entitled to rely in any manner on any such review or approval by the City. Review and approval of any design or plans by the City shall not relieve the Company from any of its obligations under this Agreement or applicable federal, state or local laws or regulations. 3. Development, Operation and Marketing Costs It is understood that the Company shall bear all costs of the Project, including but not limited to developmental, engineering, regula- tory, operating, marketing and maintenance costs, and all fees and expenses relating thereto. The Company may, subject to and in conformity with all applicable laws and regulations, the require- ments contained in the April 18, 1990 letter from the Colorado Department of Health attached as Exhibit "D ", and other regulatory approval, if required, dispose in a safe and harmless manner the spoils and residues from its activities, including, without limitation, mining and extracting Landfill Gas and the develop- ment, construction, operation and maintenance of the gathering and processing facilities at the Landfill without fee or charge by the City other than the payments required herein and applicable solid waste disposal fees or charges, if any, but at the Company's sole cost and expense. 4. Pavment Schedule. A. In full consideration of the exclusive rights granted herein to the Company to develop, maintain and operate the Project and all Landfill Gas extracted by the Company from the Landfill, the Company shall pay the City annual compensation for each project as follows: (i) Initial Project $50,000 per year (ii) Subsequent Project I $25,000 per year (iii) Subsequent Project II $25,000 per year. Annual compensation for each Project (the "Annual Payment ") shall be due and payable in 12 equal consecutive monthly installments in advance without notice, setoff, or reduction, on the first day of each calendar month at the office of the City's Director of Finance. The Company's obligation to make the Annual Payment for -5- each Project shall commence on the first day of the month after such Project is substantially completed and shall continue until the Company gives written notice of its intent to abandon such Project or the Agreement is otherwise terminated in accordance with the terms hereof. Annual Payments for each Project will escalate at the rate of three (3) percent per year commencing with the end of the first Annual Payment for such Project. B. Late Charge on Unpaid Payments. All payments not paid by the Company within fifteen (15) days after the same shall become due and shall be subject to a late payment charge in the amount of one and one -half percent (1.5%) 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 the Company to make such payments to the City when due shall be construed as a violation of the Company's obligation to make payments. 5. Annual Payment is Payment in Lieu of Other Fees. So long as the Company performs its obligations under this Agreement, including payment of the Annual Payment for each Project, the Company will be exempt from payment of any additional license fees or charges to the City relating to operation of the Projects at the Landfill, but payment of the Annual Payments does not exempt the Company from any lawful taxation upon its personal 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. 6. Security The Company shall deliver to the City a security deposit to the City in a sum equal to the Annual Payment to secure full and faithful performance by the Company of all its obligations under this Agreement. The security deposit shall be due no later than ten (10) days after the first day of the month following the month in which the Initial Project is substantially completed. The security deposit shall be returned to the Company within thirty (30) days after termination of this Agreement if the Company has performed its obligations hereunder. 7. 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 or provide adequate evidence of its qualification as a self insurer. Such insurance or evidence of self insurabili- ty shall be subject to the approval of the City's Director of Finance, which approval shall not be unreasonably withheld. The Company shall maintain such insurance or ability to self insure during the effective period of this Agreement and pay all premiums or charges therefor, if any, as same become due. A. General Public Liability and Property Damage Insur- ance The Company shall self insure or 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 to such greater sum as the Act may provide, or, at the Company's option, the 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 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 of auto- mobiles, trucks, tractors, backhoes and similar equipment, whether owned, leased, hired or used by the Company. C. Workmen's Compensation Insurance. The Company shall secure and maintain Workmen's Compensation Insurance, including Occupational Disease Provisions, covering the obliga- tions of the Company in accordance with the provisions of the Workmen's Compensation Act, as amended, of the State of Colorado. D. Additional Insurance Coverage. The insurance coverage enumerated in the above subparagraphs 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 sole judgment, may be necessary for its protection in the performance of this Agreement or work on the Project. E. Certificates of Insurance. Certificates of insurance for workmen's compensation, public liability and property damage and automotive liability shall be filed with the City promptly after the execution of this Agreement. 8. Licenses. The Company agrees to obtain at its expense and in a timely manner, all licenses, permits, variances and -7- approvals from all federal, state and local public entities and agencies with jurisdiction which may be required to develop and operate the Project. 9. Property Taxes and Assessments The Company shall promptly pay and discharge as they become due and before delinquency, all taxes, assessments, charges, liens (including mechanics' liens), levies or excises, whether general or special, ordinary or extraordinary, of every name, nature and kind, which arise out of, or result from, the activities of the Company on the Landfill or the Company's interest in the Landfill or improvements placed thereon by the Company. 10. Eminent Domain A. Condemnation. If during the term of this Agree- ment, the Landfill, the 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, the City and the Company agree that any condemnation award shall be equitably apportioned between them to reflect the value of their respective interests in the Landfill and Project. B. Taking of Project or Landfil; Termination of Agree- ment If the whole of the Project or Landfill shall be taken or condemned as aforesaid, or if such a substantial part thereof is taken and results in the portion of the Project remaining being no longer operable as an economically useful unit, in the Company's sole opinion, then the Company shall have the right, at its sole option, to terminate this Agreement as of the effective date of the condemnation. Such termination shall, however, be without prejudice to the rights of the Company to recover compensation and damages caused by the condemnation or taking from the condemnor. C. Rights of Mortgagee, or Transferee Any mortgagee, assignee or transferee of the Company's rights under this Agree- ment 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 the City or the 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. In the event that there is any gain in value realized by such contest, the gain shall be paid solely to the contesting party and the willing party shall have no right to any part of such gain. 11. Responsibility for Landfill Gas Odor and Migration Con- C:10 trol Systems. The Company shall assume the responsibility for control of odor, except odor solely attributable to sanitary sewer sludge placed on the Landfill by the City. The Company shall install and operate a gas monitoring system for the disposal areas of the Landfill. In the event of gas migration, the Company shall install within the boundaries of the Landfill control and recovery wells as may be needed. 12. Cooperation with Landfill Operator. The Company acknowledges and agrees that the City's primary interest and concern is the use and protection of the Landfill as a solid waste disposal site and facility. Therefore, Company shall not, without the prior written approval of the 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 to Company. The Company shall fully cooperate and not interfere with the solid waste disposal operations, site reclamation and monitor- ing activities conducted by the Operator or the City at the Land- fill; provided that the approval of the final engineering design for the Initial Project and of any Subsequent Project shall constitute the City's acknowledgement that the same, if installed in accordance with the approved final engineering design, will not interfere with such activities. It shall be the responsibility of the Company to coordinate its work and activities with the Opera- tor or City to avoid disruptions, delay or interference with the Operator's or City's work and activities at the Landfill. If Company shall disturb or damage the final landfill cover, Company shall repair and replace the final landfill cover to the condi- tions required by the City's Certificate of Designation issued by the County of Pueblo. 13. Default. 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 thirty (30) days' prior written notice of termination to the defaulting party specifying the default, failure or omission, in which event this Agreement shall automatically terminate unless the defaulting party shall cure the specified default, failure or omission within thirty (30) days after receipt of such notice or, if such default, failure or omission cannot be remedied by the payment of money and cannot with due diligence be wholly remedied within such 30 -day period, unless the defaulting party shall commence action to remedy said default, failure or omission within said 30 -day period, and thereafter diligently pursue such corrective action. If a party cures or proceeds to cure an alleged default, failure or omission of the other party, such party shall not be deemed to have waived its right to contest whether or not the alleged default, failure or omission has occurred. 14. Site Conditions and Hazardous Materials. A. The Company agrees that it has informed itself of the conditions under which the Company's work is to be performed, -9- 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 the Company by the City, the City disclaims the accuracy thereof and shall not be responsible for any variance in conditions or unforeseen conditions encountered during the Company's work on the Project or performance under this Agreement. B. The City is unaware of the presence of any hazard- ous or toxic wastes or substances regulated under the provisions of the Resource Conservation and Recovery Act ( "RCRA ") or the Comprehensive Environmental Response, Compensation, and Liability Act ( "CERCLA "), and implementing regulations on, under or upon the Landfill and makes no representations with respect thereto. Asbestos in potentially friable form may be located on, under, or upon the Landfill. In the event any such wastes or asbestos are uncovered or released by the Company during the performance of work and such wastes or asbestos are required by applicable law, regulations or regulatory order to be removed, disposed, treated or encased, the Company shall be responsible for the proper removal, disposal, treatment or encasement, as the case may be. C. In the event of any uncovering or release of hazardous wastes or asbestos by the Company, the Company shall at its expense provide for testing, mitigation and cleanup in accordance with all applicable laws and regulations and as ordered by the Colorado Department of Health, and the Company shall indemnify and hold City harmless from all fines, claims, demands and judgments, including costs and attorney fees, arising therefrom or related directly thereto. 15. Indemnification The Company agrees to indemnify and hold harmless the City, its officers, agents and employees from and against any and all suits, demands, claims, costs, penalties, or expenses (including reasonable attorney fees) which may arise or be asserted against the City, its officers, agents or employees by reason of any act or omission of the Company, its officers, employees, agents or contractors, whether occurring on or off the Landfill, or the use of the Landfill by the Company, or any activities conducted on the Landfill by the Company or its officers, employees, agents or contractors, or the construction, maintenance or operation of the Project or the Company's performance under this Agreement. 16. Force Majeure A. If either the Company or the City is rendered unable by force majeure to carry out its obligation under this Agreement, other than the obligation to make money payments under paragraph 4 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 -10- continuance of the force majeure. The affected party shall use its best efforts to diligently remove the force majeure as quickly as.possible. B. The term "force majeure" as used herein shall mean a cause or causes 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, administrative or governmental laws, regulations, rules, requirements, orders or actions, including modification, 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. C. In the event that a force majeure suspends the performance of a party's obligations under this Agreement for the continuous period of more than nine (9) months, either party may terminate this Agreement upon thirty (30) days' prior written notice to the other party; provided that the City shall not be entitled to terminate this Agreement pursuant to this provision if the Company agrees to resume payment of monthly installments of the Annual Payment during said 30 days. 17. Removal of Improvements Upon abandonment, termination, or cancellation of this Agreement as provided herein, the Company shall remove, within 120 days and at its own expense, all struc- tures and improvements placed on Landfill by or on behalf of the Company, and shall, unless otherwise specified in writing by the City, restore the site of the Project to a condition substantially comparable to that existing upon execution of this Agreement. If the Company fails to remove any such structures or improvements within such period, they shall become the property of the City and may be removed and disposed of by the City. In such event, the Company, for a period of twenty -four (24) months after abandon- ment, cancellation or termination of this Agreement, shall be responsible for the costs of removing remaining structures and restoring the site to such condition; provided that the Company shall be entitled to credit for any salvage value actually realized by the City from the disposition of property owned by the Company. 18. Contract Obligation This Agreement constitutes a valid and binding contract between the Company and the City. If any material portion of this Agreement is determined by final non - appealable Court Order to be illegal, against public policy or otherwise unenforceable, either party shall have the right to terminate all its obligations hereunder upon 30 days' written notice. -11- 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 the City. 20. Subcontracts and Subcontractors. A. The Company agrees to be fully responsible to the City for the acts or omissions of its subcontractors. B. Nothing contained in the contract documents shall create any contractual relationship between any subcontractor and the City. C. The Company agrees to bind every subcontractor (and every subcontractor of a subcontractor) to the terms of this Agreement as far as it is applicable to his work. 21. Assignment of Contract. No assignment or sublease of this Agreement, any part hereof, or any right hereunder, by the Company to a non - affiliated entity shall be valid or enforceable against the City unless the Company has first obtained the City's prior written consent thereto. No assignment or sublease shall relieve the Company of its obligations under the terms of this Agreement. The City expressly consents to the assignment of all of ETII's rights under the amended agreement dated April 11, 1988 to the Company, which amended agreement shall be cancelled and terminated upon the filing of an assignment of the same from ETII to the Company in a form reasonably acceptable to the City Attorney with the City Clerk. The consent of the City shall not be required for any subsequent assignment(s) hereof or any right hereunder, in whole or in part, to one or more affiliated entities; provided a true and correct copy of the instrument or assignment is filed with the City Clerk. For the purposes hereof, the term "affiliated entity" shall include any corporation or other business entity owned or controlled, directly or indirectly, by Public Service Company of Colorado or its subsidiaries and any partnership or joint venture in which the Company or an "affiliated entity" is a general partner or venturer. 22. Independent Contractor It is expressly agreed and understood that the Company is, in all respects, an independent contracting party for the purposes of this Agreement, notwith- standing that in certain respects the Company may be contractually 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. Nothing herein shall operate or be construed as creating a mining or other partnership or joint venture between the City and -12- the Company for any purpose. All liabilities of the City and the Company to third parties, if any, shall be several and not joint. 23. Choices of Law This Agreement shall be interpreted in accordance with the laws of the State of Colorado. 24. 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 Agree- ment or performance hereunder shall be settled in a Colorado court of competent jurisdiction. 25. Attorney Fees. In the event there arises any dispute regarding the respective rights or obligations of the parties hereunder, including, without limitation actions to collect payments due hereunder, the prevailing party shall be entitled to an award of all its reasonable costs and attorney fees, including those incurred on appeal. 26. Notice Notice shall be deemed given received or if mailed by certified mail, postage date mailed to the City, addressed to: The City of Pueblo c/o City Manager 1 City Hall Place Pueblo, Colorado 81003 and to the Company, addressed to: Fuel Resources Development Co. Suite 2100, 17th St. Plaza 1225 17th Street Denver, Colorado 80202 when actually prepaid, on the or, to such other address as either the City or the Company shall designate in writing to the other party. 27. Time of the Essence In the performance of all the terms, provisions and conditions of this Agreement, time shall be of the essence. 28. Remedies Cumulative. All of the rights and remedies of the City and the 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. 29. The City's Right to Enter. The 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; provided that all such entries shall be at the sole risk of the City and the City shall, except in emergency situations, provide the Company with advance notice of its intent to enter any buildings or fenced -in -13- portions of the Project. 30. Parties Bound. This Agreement is binding on and shall inure to the benefit of the City and the Company and their respective successors and approved assigns. 31. 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly approved and executed as of the date first written above. Approved As To Form: City Atto nvly PUEBLO, A MUNICIPAL CORPORATION By Pre ent of the City Council FUEL RE5OU ES DEVELOPMENT CO. By Title: Executive Vice President TJ 43.29 -14- The parcel of land located in Pueblo County, Colorado and described as: 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 65 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. EXHIBIT "A" �.- JAMES M. BREWER COMMISSIONER DIST NO. 1 SOLLIE S. RASO COMMISSIONER DIST NO. 2 GEORGE D. AMAYA COMMISSIONER DIST. NO. 3 BOARD OF COUNTY COMMISSIONERS March 28, 1990 Mr. Arthur H. Wong Project Manager, Synhytech Fuel Resources Development Co. Dravo Building Annex 1250 14th Street Denver, Colorado 80202 -1714 Re: PUEBLO COUNTY PLANNING COMMISSION Special Use Permit No. 694 Dear Mr. Wong: SOLLIE S. RASO CHAIRMAN OF BOARD JAMES E. SPACCAMONTI COUNTY MANAGER JAMES V. PHELPS COUNTY ATTORNEY Please be advised that the Pueblo County Planning Commission, at its meeting held on March 27, 1990, voted to approve Special Use Permit No. 694 with the following conditions: 1. The waste hydrocarbon, naphtha, and diesel storage tanks shall be contained within diked areas. Diked areas will be constructed to at least the National Fire Code Standards. 2. If the landfill's closure plan is amended, a copy of the approved amended closure plan shall be submitted to the Department of Planning and Development within 30 days after approval. 3. The project shall obtain and maintain fire protection service from the City of Pueblo. 4. The raw water storage tank shall be constructed and managed in a manner to maintain a sufficient amount of water in "reserve" for fire suppression. This amount of water shall be determined by the City of Pueblo. The City's determination shall be transmitted to the Department of Planning and Development prior to the issuance of a building permit for the raw water storage tank. PUEBLO COUNTY COURT HOUSE J ST., PUEBLO, CO 81003 -2292 EXHIBIT "B" , ( 719- 543 -3550) JUN CE is-i.% FAX 5440342 R - -- Mr. Arthur H. Wong Re: PCPC /SUP No. 694 March 28, 1990 Page Two 5. The FUELCO project shall be developed and operated in accordance with the intent expressed in its application documents. 6. A security fencing system and lockable gate(s) will be installed around the perimeter of the plant. 7. The project shall comply with all applicable local, State, and Federal regulations. 8. This permit shall be placed on a 1 —year review. The Planning Commission further requested a response to the questions and issues Nos. 1 through 6, as set forth at Page 9 of staff's March 21, 1990 review. This response is not a condition of approval per se, but the Commissioners would like a response. If you should have any questions, please do not hesitate to contact this Department at 545 -2424. $i rely, Charles J. F nley, rector Planning and De v! p ent Department CJF:lr c: Al Lucas, Public Service Company Poul Poulsen, Colorado Department of Health Tom Cvar, City of Pueblo Frank Cash, City of Pueblo Jim Munch, City of Pueblo Tom Jagger, City of Pueblo SOUTHSIDE LANDFILL PROPERTY PUEBLO, COLORADO N (AG ti ✓E' LANDFILL) CITY OWNED INf(IAL PkGJECT AREA!" PROPERTY BOUNDARY (361* ACRES) 8HREDOER ) / BLDG WEST AREA. 11 ' r� � SUBSEQUENT (CLOSED L ANDF I L L) \\ PROJECT a 1 AREA H SUBSEQUENT i n APPROX I - - PROJECT I lU , BOUNDARY AREA �J( I l� 1� UELCO It t METH E PLANT TO HWY 78 So 11 - 1 90 4 -H -g! APPROX. SCALE° 1 +800' ExH��lr 'G« LAND DESCRIPTION OF METHANE GAS GATHERING SYSTEM AREA AT PUEBLO SOUTH LANDFILL: A tract of land in the NWi, SW'/4 and SE %, of Section 18 Township 21 South, Range 65 West of the 6th P.M. and in the NE14 and SEi of Section 13, Township 21 South, Range 66 West of the 6th P.M. in Pueblo County, Colorado, and being more particularly described as follows: Beginning at the Ci corner of said Section 18; thence Northerly, along the East line of the said NW / of Section 18, to the Northeast corner of the S1 of the said NWi; thence Wester- ly, along the North line of the said S% of the NW /, to the West line of the said NW%, of Section 18; thence Southerly along said West line, to the Northeast corner of the South 335 feet of the said NE k4 of Section 13; thence Westerly, along the North line of said South 335 feet, a distance of 600 feet; thence Southerly, along the West line of the East 600 feet of the said NE o, to the North line of the said SE%' of Section 13; thence Southerly, along the West line of the East 600 feet of said SE a, to the Southwest cornerof the North 250 feet of the East 600 feet of the SE4 of the SE /4 of said Section 13; thence Easterly, along the South line of said North 250 feet, to the West line of the SW% of said Section 18; thence Easterly, along the South line of the North 250 feet of the S% of said SW k", to the West line of an existing roadway; thence Northeasterly, along said West line, to the North line of the said S% of the SW / of Section 18; thence Easterly, along said North line, a distance of 150 feet; thence Northerly, along a line parallel to the East line of the said SW /4 of Section 18, to the South line of the North 1000 feet of said SW a; thence Easterly, along the South line of said North 1000 feet, to the said East line of the SW %'; thence Easterly, along the South line of the North 1000 feet of the SEi of Section 18, to the Southeast corner of the West 500 feet of the said North 1000 feet of the SE34; thence Northerly, along the East line of said West 500 feet, to the North line of said SE 3, thence Westerly, along said North line, to the Point of Beginning. Containing 196 acres, more or less. Prepared by: K L H ENGINEERING CONSULTANTS, INC. 111 East 5th Street Pueblo, Colorado April 15, 1991 80 117 90 EXHIBIT "C -1" INITIAL PROJECT AREA AND SUBSEQUENT PROJECT AREAS I AND II (COMBINED) A tract of land located in the SE% of the SW3 , Section 18, Township 21 South, Range 65 West of the 6th P.M., being more particularly described as follows: Considering the South line of the said SW% of Section 18 to bear S.88 °- 45' -33 "E. and all bearings contained herein being relative thereto. Commencing at the Southwest corner of said Section 18; thence N.74 23 39 "E., a distance of 1408.09 feet to the True Point of Beginning; thence N.09 24 1 - 55 "E., a distance of 422.00 feet; thence S.80 35 05 11 E., a distance of 360.00 feet; thence S.09 °- 24'- SS "W., a distance of 422.00 feet; thence N.80!- 35 1 - 05 "W., a distance of 360.00 feet to the Point of Beginning. Containing 3.488 acres. _ EXHIBIT "C -2" _ METHANE PLANT PPR— `23 -90 MON 16:39 COLO DEPT OF HEALTH MAIN f P. 02 STATE OF COLO COLORADO DEPARTMENT OF HEALTH 4210 East 11th Avenue Oenver, Colorado $0220.3716 Phone {303) 320.4333 releram: x303) 322.906 (Main evilding/denvv) i3o31 320.1329I1 Place/ Denver) 1303) 240.7196 lunetion Req)onjl Off(eel . J 7 �♦ April 18, 1990 Louis Quigley One City Hall Pueblo, Colorado 81003 ROY Romer G)Yetnor Thomas ,H. Vernon, M.I Executive Director Subject: Southside Landfill, re-disposal of waste produced in drilling through trash Dear Mr. Quigley: At your request, I am sending you a letter to confirm and document our telephone conversation of March 19, 1990. Representatives of Fuelco and the City of Pueblo expressed concern regarding the responsibility and liability incurred by drilling through refuse filled areas of the Southside Landfill in the placement of methane recovery wells. In response to those concerns, I am providing a summary of the recommendations and policies used by the Hazardous Materials and Waste Management Division in previous situations. 1. Materials produced as drilling residues or cuttings (herein after referred collectively as drilling wastes) are considered to be newly generated and must be disposed of properly by current standards. Drilling wastes produced without detection of anomalous gases or vapors, can be visually examined. If they are identified as normal refuse, they can be disposed of as solid waste. Liquids, sludges, and any drilling waste that is a suspect industrial or hazardous material (e.g., materials presenting solvent odors) should be segregate, containerized and tested. If the material determined by laboratory analyses to be hazardous waste, then it must be disposed of as hazardous waste. If organic vapors, other than methane and normal, products of putrification, are detected by field monitoring equipment during well implacement, the drilling wastes from that well location should be segregated, containerized and tested. The well location should also be permanently recorded for future needs. If the material In the drilling waste is chemically identified as hazardous waste, then it must be disposed of as hazardous waste. t .�L. i 1 wv EXHIBIT "D" AIPR- -23 -90 MON W 16:Z9 COLD DEPT OF HEALTH M A I N 1-1 11 Southside Landfill Quigley Page 2 P.03 2. During the well implacement process, the identification of hazardous materials buried in the landfill, that today would require disposal as hazardous wastes, does not by itself require the remediation of the landfill including removal of suspect waste. The only time that remediation would become an issue would be if proof of ground water contamination was developed during the boring; then, remediation in some form would be necessary. Of course, identification of ground water contamination attributable to a landfill would trigger the need for remediation whether or not methane recovery is being attempted at the site. 3. The health and safety of the personnel on or near the drill rig is of primary importance. A health and safety plan with proper field monitoring f equipment and a routine process for monitoring the bore holes and cuttings should be in effect during all well implacements. I hope that this summary clarifies the thinking that this Division has used in resolving the issue of liability and waste re- generation or disposal for similar sites and activities in the past. If I can be of further assistance, feel free to contact me again. Si irely, I CC ey'T c oa C Solid Waste and Incident Me Hazardous Materials and V ement Section Management Division CC FuelCo Poul Poulsen File Reception #: 1123361 Date: 05/28/1996 Time: 258 Book: 2894 Page: 831 Chris C. Munoz Inst: B S R Fee: 20.00 D Fee: 0.00 SC: 1.00 Pg: 1 of 4 Pueblo Co.C1k.&Rec. BILL OF SALE THIS BILL OF SALE is executed and delivered as of the first day of June, 1994, by Fuel Resources Development Co., a Colorado corporation ( "Fuelco "), to the City of Pueblo, a municipal corporation ( "Pueblo "). WHEREAS, Pueblo owns certain property known as the Pueblo Solid Waste Landfill located in Pueblo County, Colorado (the "Landfill "); and WHEREAS, Fuelco has constructed and installed and owns that certain Gas Methane Recovery System and Facility located on, over and under a portion of the Landfill, as more particularly described in Exhibit A attached hereto (the "System "); and WHEREAS, pursuant to paragraph 15 of that certain Escrow Agreement dated as of June 1, 1994 (the "Escrow Agreement "), by and among Fuelco, Pueblo and Pueblo Bank & Trust Company, such parties agreed to execute any necessary transfer documents evidencing Fuelco's conveyance of the System to Pueblo without cost to Pueblo; and WHEREAS, Fuelco represents and warrants that Fuelco has no knowledge whatsoever of any circumstance, release or threatened release arising from, or attributable in whole or in part to, the System or the System's prior operation (i) which is or reasonably may be subject to an order or enforcement action of any state or federal agency, or (ii) which may impose upon the owner or operator of the System any duties of any kind arising or which could arise under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.0 Section 9601 et sec .), the Superfund Amendments and Reauthorization Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Endangered Species Act, or Colorado state laws relating to hazardous waste or protection of the environment, and implementing regulations; however, Pueblo understands and acknowledges that the foregoing statement by Fuelco is not based upon, and Fuelco has not undertaken, any investigation or testing of the System whatsoever; NOW, THEREFORE, for good and valuable consideration and for the mutual covenants and agreements set forth in the Escrow Agreement, the receipt and sufficiency of which is hereby acknowledged, Fuelco does hereby grant, bargain, sell, transfer, assign and convey unto Pueblo forever all of its right, title and interest in and to the System, and warrants title to the same, free and clear of all debts, mortgages and encumbrances, subject to the following covenants and conditions: 1. As partial consideration for this Assignment, and in the absence of which Fuelco would not have executed and delivered this instrument to the City, it is agreed and understood that the City shall assume all responsibility and liability for Book: 2894 Page: 832 Chris C. Munoz Page: 2 of 4 Pueblo Co.C1k.&Rec. owning, operating and maintaining the System in accordance with all applicable federal, state and local statutes, rules or regulations, from and after the date of this Assignment;provided, however, that Fuelco shall remain responsible for those liabilities asserted against Fuelco prior to the date hereof as a result of Fuelco's ownership, operation or maintenance of the System. 2. THE SYSTEM IS CONVEYED "WHERE IS, AS IS" AND WITHOUT WARRANTY BY FUELCO OF ANY KIND, EXPRESS OR IMPLIED. SPECIFICALLY, AND WITHOUT LIMITATION, FUELCO DOES NOT, IN ANY WAY, WARRANT TO THE CITY THE QUALITY OR CONDITION OF THE SYSTEM, OR ITS FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ITS MERCHANTABILITY. 3. Fuelco shall pay all taxes assessed on, based on, or attributable to the System that accrued on or before the date of this Bill of Sale. Upon execution of this Bill of Sale, a true copy shall be promptly filed with the Pueblo County Assessor in order that the System may be exempted from property taxation pursuant to Section 39 -3 -105, C.R.S. and taxes abated effective the date of transfer pursuant to Section 39 -3 -130, C.R.S. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -2- Book: 2894 Page: 833 Chris C. Munoz Page: 3 of 4 Pueblo Co.Clk. &Rec. IN WITNESS WHEREOF, Fuelco has caused this Bill of Sale to be duly executed as of the date first above written, and Pueblo has caused this Bill of Sale to be duly accepted, as indicated by its execution below. CITY AND COUNTY OF DENVER ss. ) FUEL RESOURCES DEVELOPMENT CO. B , ,,�� y ,- Vice President On the day of D e C e , 1994, personally appeared before me n , e j- p cz h and V on Q l r the signers o . the above instrgmed mho duly acknowledged to me that they executed the same behalf of Fuel ResouxGas IJi ppment Co. �VIy- nisslon hxpires: �YGo�e :tibi x, 15 s�U u 401a ACCEPTED AS OF TI' V'TYAT FIRST ABOVE WRITTEN. CITY OF PUEBLO By Oesi �ent the City Council STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) O the IA-4- of 1994, personally appeared before me the President o e City Council, o duly acknowledged to me e exec ed foregoing Bill of Sale :6ta ehalf of the City of Pueblo. J. •'-L c it 1 1 O1Tll 1S5ikYo i reS 61750 -48716 27121 PV e o . Book: 2894 Page: 834 Chris C. Munoz Page: 4 of 4 Pueblo Co.Clk. &Rec. EXHIBIT A The Property consists of that certain Gas Methane Recovery System and Facility located on, under and over the following parcel of the Pueblo Solid Waste Landfill in Pueblo County, Colorado: That parcel of land located at the S'h of the NW' /a, the N'h of the S' /2, and the S' /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' /2 of the E' /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 the 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; EXCEPT the following approximate 3.488 acres: A tract of land located in the SE 1 /4 of the SW 1 /4, Section 18, Township 21 South, Range 65 West of the 6th P.M., being more particularly described as follows: Considering the South line of the said SW' /4 of Section 18 to bear 5.88 ° -45'- 33 "E. and all bearings contained herein being relative thereto. Commencing at the Southwest corner of said Section 18; thence N.74 °- 23'- 39 "E., a distance of 1408.09 feet to the True Point of Beginning; thence N.09 ° -24'- 55"E., a distance of 422.00 feet; thence S.80 °- 35'- 05 "E., a distance of 360.00 feet; thence S.09 °- 24'- 55 "W., a distance of 422.00 feet; thence N.80 ° -35'- 05"W., a distance of 360.00 feet to the Point of Beginning. 61750 -48716 27121