EXHIBIT 10.19
Exhibit A - Legal Description
Exhibit B - Easement Deed and Agreement
Schedule 2.02 - Wastewater Discharge Quantities
Schedule 5.06 - TCP Monthly Gas Cost Averaging Methodology
SERVICES SUPPLY AGREEMENT
This Service Supply Agreement (this "AGREEMENT") is made and entered into
as of June 10, 1997, by and between COLORADO GREENHOUSE, INC., a Delaware
corporation ("CGI"), and THERMO COGENERATION PARTNERSHIP, L.P., a Colorado
limited partnership ("TCP").
Recitals
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A. TCP is the owner of certain land (the "THERMO PROPERTY") located in
the City of Ft. ▇▇▇▇▇▇, County of Weld and State of Colorado, and of certain
buildings and improvements located thereon, including a twenty (20) acre
greenhouse (the "EXISTING GREENHOUSE") and a gas-fired cogeneration power plant
(the "POWER PLANT"). TCP leases approximately 35 acres of the Thermo Property
(the "LEASED LAND"), including the Existing Greenhouse to ROCKY MOUNTAIN PRODUCE
LIMITED LIABILITY COMPANY, a Colorado limited liability company ("ROCKY
MOUNTAIN") pursuant to a certain Thermal Supply Lease Agreement bearing an
effective date of March 22, 1993 (as heretofore and hereafter amended and
supplemented from time to time, the "ROCKY MOUNTAIN TSA"), a complete copy of
which has heretofore been furnished by Rocky Mountain to CGI.
B. COLORADO GREENHOUSE LLC, a Colorado limited liability company ("CG"),
an affiliate of CGI, operates the Existing Greenhouse pursuant to a certain
Greenhouse Operation and Management Agreement dated as of December 29, 1994
between Rocky Mountain and CG.
C. CGI has acquired from Thermo Greeley I, Inc., a Colorado corporation
("THERMO GREELEY"), certain real property (the "CGI PROPERTY") consisting of
approximately 26.752 acres of land adjacent to the Leased Land, as more
particularly described on EXHIBIT A attached hereto. The CGI Property has been
duly subdivided pursuant to that certain Subdivision Plat of the Colorado
Greenhouse Addition which was recorded on May 12, 1997 in the real property
records of the Office of the Clerk and Recorder of Weld County, Colorado, at
Reception No. 02547711. CGI intends to construct a twenty (20) acre greenhouse
(the "NEW GREENHOUSE") on the CGI Property in close proximity to the Existing
Greenhouse. CGI and CG intend to jointly market, sell and distribute the
produce from the Existing Greenhouse and the New Greenhouse.
D. In connection with the operation of the Power Plant and the Existing
Greenhouse, TCP (as one of multiple successors and assigns of Thermo Carbonic,
Inc.) obtains water and has access to wastewater discharge services from the
City of Ft. ▇▇▇▇▇▇ (the "CITY") pursuant to a certain Annexation Agreement dated
as of December 6, 1991 (the "ANNEXATION AGREEMENT") which is recorded in Book
1352 as Reception No. 02305317 in the land records of Weld County, Colorado. In
addition, TCP generates thermal energy at the Power Plant and obtains natural
gas from third parties. TCP furnishes thermal energy and natural gas to Rocky
Mountain for use in the Existing Greenhouse pursuant to the Rocky Mountain TSA.
E. CGI desires to obtain from TCP and TCP desires to furnish to CGI
thermal energy and certain other services, and the use of certain easements (the
"EASEMENTS") through which such services may be provided, as described below,
useful for CGI's operation of the New Greenhouse.
NOW, THEREFORE, in consideration of the above Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.01 Construction of New Greenhouse. CGI has commenced construction of the
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New Greenhouse and shall use due diligence to complete and commence operations
within the shortest practical time. CGI shall substantially complete
construction of the New Greenhouse on or before December 1, 1997. The term "New
Greenhouse" shall include all new or modified facilities necessary or desirable
for TCP to furnish and CGI to receive the Services. Except as provided in
Section 4.02, below, TCP shall not be required to bear or contribute to the cost
of any such new or modified facilities.
1.02 Agreement to Provide Services. TCP shall, during the Term of this
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Agreement, provide to CGI the services described in Articles II, III, IV, and V,
below (the "SERVICES") upon the terms and conditions and for the consideration
specified herein. TCP's obligation to provide Services shall commence on the
substantial completion of construction of the New Greenhouse or on such earlier
date as all such facilities required to deliver the Services have been installed
by CGI and CGI has need of the Services.
1.03 Services Separable. Each of the Services to be provided by TCP to CGI
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is described separately in Articles II through V of this Agreement. If for any
reason any one or more of the Services is terminated, then, unless otherwise
agreed in writing by the parties, the provisions of this Agreement shall remain
in full force and effect as to the other Services; provided, however, that TCP
shall have no obligation to furnish any of the other Services to CGI at any time
when CGI has not accepted, and it appears to TCP that CGI will not accept, for
the
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calendar year in question CGI's maximum annual purchase obligation (as set forth
in section 4.3) for thermal energy for use in the New Greenhouse; provided,
however, that prior to suspending such other Services, TCP shall notify CGI of
TCP's intention to suspend such other Services at a future date not less than
thirty (30) days from the date of such notice; and provided, further that if,
within such period, CGI furnishes adequate assurances to TCP that the annual
purchase obligation will be met, TCP shall not suspend any other Services.
1.04 Term. The term ("TERM") of this Agreement shall commence on the date
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first above written and shall expire upon the earlier of the following: (a)
June 4, 2019, (b) the mutual written consent of both parties hereto, or (c) the
date upon which the Annexation Agreement expires or is terminated; provided,
however, that in the event this Agreement is terminated under clause (c) above,
the parties hereto shall amend and restate this Agreement to continue the same
in effect until (a) or (b) occurs in the event that the Annexation Agreement is
renewed or otherwise extended without material change.
ARTICLE II
WASTEWATER SERVICES
2.01 Agreement to Accept Wastewater from New Greenhouse. Subject to
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compliance by CGI with the terms and conditions of this Agreement, the
Annexation Agreement, and a certain "Subdivision Agreement" dated May 13, 1997
between the City and CGI which agreement includes, among other things, a written
acknowledgment that the City will consider the New Greenhouse a part of the
"PROJECT" (as such term is defined in the Annexation Agreement) and the City's
written consent to the furnishing of wastewater services to the New Greenhouse
under this Agreement, TCP shall permit CGI to discharge wastewater from the New
Greenhouse through TCP's existing wastewater discharge system which connects the
Power Plant and Existing Greenhouse to the City's sewer service lines ("JOINTLY
USED LINE"). If any sewerage lines or other facilities are required to be
constructed on TCP's property, TCP's obligation to furnish wastewater services
to the New Greenhouse shall not commence until such time as (i) such facilities
have been constructed at the sole expense of CGI, and (ii) a separate written
easement agreement, in form substantially similar to EXHIBIT B attached hereto,
confirming the location of and CGI's duty to maintain such new facilities shall
have been executed between CGI and TCP.
2.02 Characteristics and Volumes of Wastewater Discharge.
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(a) The wastewater generated by the Existing Greenhouse and the New
Greenhouse combined shall not contain substances or chemical components in
volumes or concentrations or exhibit characteristics that exceed allowable
tolerances for characteristics as set forth in Section C.4 of the Annexation
Agreement. Should the quality or nature of the wastewater from the New
Greenhouse (i) at the point of discharge (the "WASTEWATER DISCHARGE POINT") to
TCP's wastewater discharge lines fail to meet the standards set forth in the
Annexation
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Agreement for discharge by TCP into the City's sewer system, or (ii) contribute
to the failure of TCP's wastewater discharge to meet the Annexation Agreement
standards at the point it is discharged by TCP into the City's sewer system
(except to the extent such failure would not have occurred but for a material
alteration by TCP of its existing wastewater discharge practices), then CGI, at
its sole cost and expense, shall pretreat such wastewater, or a portion of it,
to the extent necessary to make CGI's wastewater comply with such standards. The
provisions in this Section are in addition to the rights and remedies available
to TCP under Section 9.04.
(b) Subject to Section 2.02(c), below, the maximum rate of flow (in
gallons per minute) and volume of wastewater discharged by CGI into TCP's system
by CGI and Rocky Mountain combined shall not exceed the lesser of (i) the
capacity available from time to time of the existing facilities, or (ii) the
limits on SCHEDULE 2.02. The parties acknowledge that the historic peak
discharge of wastewater from the Existing Greenhouse has been approximately
75,000 gallons per day, however, the requirements of this Agreement shall govern
future combined discharge volumes. With respect to capacity available from time
to time, CGI's right to discharge wastewater into the TCP system shall be
subject to pre-emption of such capacity by usage of the wastewater system
downstream by the City, and by usage of the Jointly Used Lines by TCP for
wastewater discharge from the Power Plant.
(c) In addition, CGI, in combination with Rocky Mountain, shall be
permitted to discharge into TCP's wastewater discharge facilities such
quantities of wastewater in excess of the amounts specified in Schedule 2.02 to
the extent that such additional discharge does not exceed the maximum total
wastewater discharge rights of "ANNEXORS" under the Annexation Agreement
(including without limitation the rights of TCP and Thermo Greeley I, Inc.,
their successors and assigns) less the aggregate portion of such maximum
discharge capacity which is then being used by the City, TCP, and Rocky
Mountain. Under no circumstances shall CGI be construed to be an assignee of
any rights or privileges of Annexors under the Annexation Agreement.
(d) TCP and CGI acknowledge that the capacity of the existing
wastewater disposal facilities is such that when the City is utilizing such
facilities downstream from the Plant, and the Plant is discharging into the
system at its peak capacity, the capacity of the wastewater disposal facilities
may be inadequate to permit discharge by Rocky Mountain and CGI of the volumes
shown on Schedule 2.02. The parties also acknowledge that the Existing
Greenhouse includes wastewater holding facilities to accommodate these temporary
system overloads. Should it be determined at any time that such holding
facilities are insufficient to accommodate wastewater generated from the New
Greenhouse and the Existing Greenhouse combined, CGI shall curtail or
discontinue (as required) its use of the existing wastewater discharge
facilities until such time as CGI, at its cost, has increased the capacity of
the discharge or holding facilities. In the alternative, CGI may make other
lawful arrangements suitable to CGI for the disposal of wastewater from the New
Greenhouse. TCP's prior written consent (which shall not be withheld or delayed
unreasonably) shall be required for any modification by CGI of TCP's or the
City's wastewater facilities which affect the operation of the Existing
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Greenhouse or Power Plant. It shall be reasonable for TCP to withhold such
consent if TCP's operations would be disrupted or impaired in any material way
by CGI's activities.
2.03 Sampling and Metering. If not already existing upstream from where
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the combined Rocky Mountain/CGI wastewater flow enters TCP's system, CGI, at its
sole cost and expense, shall construct and operate wastewater sampling, flow
equalization, and flow recording facilities at the Wastewater Discharge Point to
measure compliance with the wastewater characteristics, discharge flow rates and
discharge volumes from the Existing Greenhouse and the New Greenhouse. CGI
shall furnish to TCP quarterly reports of such records within thirty (30) days
after the close of each calendar quarter concerning wastewater characteristics,
flow rates, and volumes. TCP shall have the right to request and receive more
frequent reports at reasonable intervals. If CGI discovers samples,
measurements, or conditions that violate the terms of the Annexation Agreement,
that exceed the volume limits set forth on Schedule 2.02, or that CGI reasonably
believes may interfere with or otherwise have an adverse effect on TCP's
wastewater discharge under the Annexation Agreement, CGI shall immediately
notify TCP. Further, TCP may, at its sole discretion, and at reasonable times,
elect to audit or review such sampling and measurement practices and may take
such additional samples as TCP deems necessary or advisable to insure compliance
with all wastewater discharge criteria under this Agreement. Subject to
reasonable notice delivered to CGI, TCP shall have access to the Wastewater
Discharge Point for the purpose of taking any such samples and monitoring any
meter required by this Agreement.
2.04 Payment. CGI shall reimburse TCP monthly for TCP's actual cost
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charged by the City for the volume of wastewater discharged from the New
Greenhouse during that month, and for any and all other costs charged by the
City pertaining to wastewater services provided hereunder to the extent such
costs can reasonably be allocated to the New Greenhouse. Should the combined
volume of discharge of wastewater by Rocky Mountain and CGI into the TCP
facilities, when aggregated with the volume of wastewater discharged by TCP
(including peak volume discharges from the Plant) cause the City to impose
charges on the Project's discharge at rates in excess of the rates available to
the Annexors for stipulated discharges under the Annexation Agreement, CGI shall
reimburse TCP at such higher rates for such incremental volumes. If practical
to do so and if permitted by the City in a manner which will assure that TCP
will receive credit for such payments, CGI shall pay directly to the City all
charges allocable to the New Greenhouse. In the event that TCP receives notice
from the City of a rate adjustment for wastewater discharge service, TCP shall
promptly deliver a copy of said notice to CGI. Nothing herein shall preclude
TCP from passing on to Rocky Mountain, in such manner as may be determined from
time to time between TCP and Rocky Mountain, any charges reasonably allocable to
the Existing Greenhouse for wastewater discharge, including without limitation
costs for excess usage at higher rates than those provided in the Annexation
Agreement.
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ARTICLE III
WATER
3.01 Agreement to Provide Water. Subject to the terms and conditions of
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this Agreement and the Annexation Agreement, and compliance by CGI with the
applicable terms of the Subdivision Agreement, TCP shall provide water from the
City, and treat a portion of such water in TCP's existing treatment facilities,
to CGI for use in the New Greenhouse. Such water shall be provided through
TCP's existing waterlines to TCP's water treatment facility on the Thermo
Property and through new waterlines to be constructed by CGI at CGI's expense
from TCP's existing waterlines both upstream and downstream from the water
treatment facility. All costs in connection with the installation of such new
lines and any necessary upgrading of TCP's existing lines shall be borne by CGI.
TCP's obligation to furnish and treat water to CGI shall not commence until such
time as (i) all new and upgraded (if necessary) waterlines have been
constructed, and (ii) a separate written easement agreement, in form
substantially similar to EXHIBIT B attached hereto, confirming the location of
and CGI's duty to maintain such waterlines shall have been executed between CGI
and TCP. TCP's obligation to furnish such water shall at all times be limited
to the quantities and flow rates provided in paragraph 3.02. Under no
circumstances shall TCP be required to incur any cost or expense for upgrade or
expansion of TCP's water treatment facilities in order to provide water service
under this Agreement.
3.02 Water Quality and Quantity.
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(a) The quality of the treated water furnished by TCP to CGI
hereunder shall be comparable to that currently furnished by TCP to Rocky
Mountain for use in the Existing Greenhouse. To the extent TCP provides treated
water to CGI in a manner comparable to the existing standards under which it
provides treated water to Rocky Mountain, TCP shall not be responsible to CGI if
such water quality is or should become unsatisfactory for use in the New
Greenhouse.
(b) The maximum respective rates of flow per minute and daily volumes
of water which TCP shall be obligated to furnish to the Existing Greenhouse and
the New Greenhouse shall not exceed 200 gallons per minute (gpm) and 288,000
gallons per day (gpd) of treated water, and 200 gpm and 250,000 gpd of untreated
water. Notwithstanding the foregoing, TCP shall not at any time have any
obligation to furnish to CGI water at flow rates and volumes in excess of the
flow rates and volumes of water made available to TCP by the City less the
combined amount required by TCP for operation of the Power Plant and the amount
furnished by TCP to Rocky Mountain to service the Existing Greenhouse. The
parties acknowledge that the historic usage of water in the Existing Greenhouse
has been approximately 65,000,000 gallons per year, and that the limits set
forth in this Agreement shall govern future combined usage by CGI and Rocky
Mountain.
(c) Notwithstanding the limits in Section 3.02(b), above, so long as
water in excess of that provided in the preceding sentence (i) is available to
TCP under the Annexation
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Agreement, (ii) is deliverable by TCP to CGI without expansion or modification
of TCP's or the City's existing water service and treatment facilities, and
(iii) is not required for use by TCP or Rocky Mountain, TCP shall also furnish
to CGI such quantities and flow rates of treated and untreated water in excess
of those maximums in the preceding paragraph for use in the New Greenhouse as
CGI shall from time to time request. It is the intent of this paragraph 3.02(c)
to allow CGI to obtain additional treated and untreated water from TCP for use
in the New Greenhouse to the full extent such water is available to TCP from the
City, within the capacity of TCP's current water service and treatment
facilities, and not required for use by TCP and Rocky Mountain.
(d) TCP makes no representations or warranties concerning the
availability, quality, or quantity of water furnished by the City from time to
time pursuant to the Annexation Agreement, nor does TCP make any representation
or warranty that such water as may be furnished by the City will be sufficient
for CGI's operation of the New Greenhouse.
3.03 Storage and Metering. CGI acknowledges that TCP does not have
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reservoir facilities to store water for the Existing Greenhouse and the New
Greenhouse. CGI shall, at its expense, construct whatever reservoir or other
water storage facilities on the CGI Property may be needed to store clean water
furnished to the New Greenhouse pursuant this Agreement. If requested by TCP,
CGI shall, at CGI's expense, install, operate, and maintain metering as may be
required to differentiate water usage between the Existing Greenhouse and the
New Greenhouse. CGI shall read such meter(s) monthly and report the readings to
TCP. Until such time as meters may be installed pursuant to this paragraph, TCP
shall not be deemed to be in breach of its obligations hereunder for failure to
accurately differentiate water usage between the Existing Greenhouse and the New
Greenhouse, provided TCP uses reasonable efforts to do so.
3.04 Payment. CGI shall reimburse TCP monthly for (i) TCP's actual cost
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charged by the City for the volume of untreated water which TCP delivers to CGI
hereunder, and (ii) TCP's allocated cost for treated water delivered during that
month to the "WATER DELIVERY POINT." Allocated costs for treated water shall be
calculated in the same manner as TCP calculates costs for treated water
furnished to Rocky Mountain for use in the Existing Greenhouse, adjusted from
time to time for cost of water which TCP pays to the City. Should the combined
volume of treated and untreated water delivered to Rocky Mountain and CGI, when
aggregated with the volume of water used by TCP (including peak volume usage at
the Plant), cause the City to impose charges on the Project's water usage at
rates in excess of the rates available to the Annexors for stipulated quantities
of water under the Annexation Agreement, CGI shall reimburse TCP at such higher
rates for such incremental volumes. If practical to do so and if permitted by
the City in a manner which will assure that TCP will receive credit for such
payments, CGI shall pay all charges allocable (in TCP's reasonable discretion)
to the New Greenhouse for untreated water directly to the City and shall
reimburse TCP only for the cost of treated water as described above. CGI shall
also reimburse TCP for any and all other costs charged by the City pertaining to
water service to the extent such costs can reasonably be allocated to the New
Greenhouse. In the event that TCP receives notice from the City of a rate
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adjustment for water service, TCP shall promptly deliver a copy of said notice
to CGI. Nothing herein shall preclude TCP from passing on to Rocky Mountain, in
such manner as may be determined from time to time between TCP and Rocky
Mountain, any charges reasonably allocable (in TCP's reasonable discretion) to
the Existing Greenhouse for water furnished to the Existing Greenhouse,
including without limitation costs for excess usage at higher rates than those
provided in the Annexation Agreement.
ARTICLE IV
THERMAL ENERGY
4.01 Agreements with Respect to Thermal Energy. TCP shall provide to CGI,
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and CGI shall purchase, thermal energy for the operation of the New Greenhouse.
Such thermal energy shall be delivered by TCP to an interconnection point on the
low pressure header at the Power Plant, through a hot water or steam supply and
condensate collection system which shall be constructed by CGI as part of the
New Greenhouse. The parties acknowledge that TCP intends to retain and use one
hundred percent (100%) of the condensate. As an essential term of this
Agreement, CGI agrees to use and operate the New Greenhouse only as a greenhouse
for commercial production of agricultural products, or for such alternative uses
(which may not be implemented prior to TCP obtaining certification by the
Federal Energy Regulatory Commission ("FERC") that such alternative use
constitutes a "useful thermal output" pursuant to the requirements set forth in
the Regulations implementing the Public Utility Regulatory Policies Act of
1978, as amended from time to time, as currently established by FERC and set
forth in Sections 292.201 through 292.207 of title 18, Code of Federal
Regulations, and all amendments of such requirements which may become effective
from time to time, and must in any event require consumption of sufficient
useful thermal energy for the Power Plant to remain a "qualifying cogeneration
facility" pursuant to the aforesaid requirements) as may be approved by TCP
prior to any change of use, provided such TCP approval shall not be unreasonably
withheld or delayed.
4.02 Payments. CGI shall pay TCP for thermal energy in monthly payments
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at the rate equal to 1.2 times TCP's actual delivered cost for natural gas equal
in BTU value to the number of BTUs of thermal energy delivered to CGI. Should
CGI so request at least thirty (30) days prior to anticipated substantial
completion of the New Greenhouse, simultaneously with TCP's first delivery of
thermal energy to CGI pursuant to this Agreement, TCP shall pay to CGI the sum
of One Hundred Thousand Dollars ($100,000.00) as full compensation for any and
all costs which CGI may incur in connection with entering into this Agreement,
including without limitation installation and upgrade of all facilities required
under this Agreement and/or the Contract of Sale dated May 12, 1997 between
Thermo Greeley I, Inc. and CGI. Should no such request be made, CGI shall
receive, as full compensation aforesaid, a credit of $100,000 against CGI's
first obligations to pay for Thermal energy first arising under this Section
4.02.
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4.03 Quantity. Currently, TCP anticipates that it will be able to make
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available for use within the New Greenhouse up to two hundred billion
(200,000,000,000) BTUs of thermal energy each calendar year. TCP shall use all
commercially reasonable efforts (but not to include modifications of turbine
load or operation not otherwise consistent with prudent power plant operations)
to make available to CGI a combination of thermal energy and/or natural gas
totaling not less than 80,000,000 BTUs per hour for the operation of the New
Greenhouse. TCP shall be obligated to deliver, and CGI shall be obligated to
purchase, CGI's actual requirements for thermal energy used in the New
Greenhouse, but not in excess of one hundred billion (100,000,000,000) BTUs per
calendar year; provided, however, that if TCP is unable to deliver such amount
of BTUs in thermal energy, TCP shall deliver such lesser quantity of BTUs of
thermal energy as TCP shall produce and be able to make available to the New
Greenhouse, together with natural gas of sufficient BTU value to equal one
hundred billion BTUs when combined with the thermal energy delivered, as
requested by CGI. In the event that CGI's needs for thermal energy exceed the
foregoing maximum obligations of TCP, CGI shall notify TCP of its additional
needs and TCP shall use reasonable efforts to supply such additional amounts
consistent with TCP's normal operation of the Power Plant. The foregoing
notwithstanding, with respect to calendar year 1997, the one hundred billion
(100,000,000,000) BTU maximum purchase obligation shall be prorated based on the
number of days in the calendar after thermal energy is required by CGI divided
by 360, but CGI shall nevertheless use its best efforts to utilize, and TCP
shall use its best efforts to produce and furnish, additional thermal energy
consistent with TCP's normal operations of the Power Plant and its obligations
to supply thermal energy to the Existing Greenhouse. If not already constructed
in connection with the Existing Greenhouse, CGI, at its sole cost and expense,
shall construct a metering and instrumentation system, reasonably satisfactory
to TCP, to record the actual amount of thermal energy delivered to by CGI for
the New Greenhouse. Procedures for measurement of the amount of thermal energy
delivered shall be in accordance with the Rocky Mountain TSA.
ARTICLE V
NATURAL GAS
5.01 Existing Supply and Transportation Contracts. As of the date of this
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Agreement, TCP (either directly or through a related company, Thermo Gas
Marketing, Inc.) is purchasing and transporting natural gas to the Existing
Greenhouse and the Power Plant pursuant to various contractual arrangements with
gas producers and transporters. TCP receives the gas from its third-party
transporters at a meter located on the Thermo Property and transports the gas to
the Existing Greenhouse and the Power Plant through its own pipeline and
facilities. TCP represents that its existing gas purchase and transportation
arrangements (subject to certain provisions contained therein regarding the
resale of gas) enable it to obtain sufficient quantities of gas in excess of
TCP's requirements for use in the Power Plant to supply to CGI the gas described
in paragraph 5.02, below. CGI acknowledges that such arrangements include
purchasing natural gas as required in the spot market.
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5.02 Agreement to Provide Natural Gas. If TCP is unable to deliver the
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maximum amount of thermal energy which CGI is required to purchase on an annual
basis under paragraph 4.03, (i.e. one hundred billion (100,000,000,000) BTUs per
year), TCP, upon CGI's request, shall sell and deliver annually to CGI at the
Delivery Point (as hereinafter defined) natural gas with BTU value equal to the
difference between the BTU value of the thermal energy delivered by TCP pursuant
to paragraph 4.03 and CGI's maximum required thermal energy purchase obligation.
TCP shall use all commercially reasonable efforts to make available to CGI a
combination of natural gas and/or thermal energy in a combined amount of not
less than 80,000,000 BTUs per hour for the operation of the New Greenhouse, it
being the intent that CGI's needs for heat for the New Greenhouse should be
satisfied by TCP delivering amounts of thermal energy and natural gas that
together total not less than 80,000,000 BTUs per hour. Although no monthly
nomination or forecast of gas requirements shall be required from CGI with
respect to such obligatory gas sales, CGI shall use commercially reasonable
efforts to inform TCP of its anticipated gas requirements 24 hours in advance of
its needs. In addition, provided that CGI furnishes to TCP, not later than ten
(10) days before the month in which such gas is expected to be needed, a non-
binding best efforts estimate of CGI's desired purchases of natural gas from TCP
for the ensuing month, TCP shall use its best efforts to sell and deliver to CGI
at the Delivery Point such additional quantities of gas as CGI shall request
from time to time for use in the New Greenhouse; provided, however, that with
respect to such monthly nominations TCP has first met its requirements for gas
which is required for use in the Power Plant and to furnish thermal energy and
gas to the Existing Greenhouse. CGI shall indemnify TCP for all storage and
imbalance charges, costs and other expenses incurred by TCP resulting from CGI's
failure to use all of the additional gas requested by CGI as contemplated in the
preceding sentence. CGI shall have no minimum gas purchase obligation. TCP's
obligation to use "best efforts" to sell and deliver to CGI such additional
quantities of gas shall not require TCP to construct facilities or contract for
firm, long-term incremental gas supplies requiring payment of demand charges or
transportation service to fulfill such obligations.
5.03 Delivery Point, Additional Pipeline, and Facilities. The "DELIVERY
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POINT" shall be one or more locations on TCP's gas distribution system mutually
acceptable to the parties and located on the Thermo Property. CGI will at its
expense construct and/or maintain such pipeline(s) and install meters and such
other facilities as the parties shall mutually determine are reasonably
necessary to accept and meter the gas at the Delivery Point and transport it to
the New Greenhouse. CGI acknowledges that because TCP may commingle gas streams
of varying BTU rating (due to ethane content), the BTU content of gas available
on the low pressure side of TCP's gas header may vary from a low of
approximately 950 BTU per MCF to a high of approximately 1300 BTU per MCF. If
CGI desires either to limit this variation or to maintain a direct high pressure
connection to a TCP supplier with which CGI intends to arrange direct purchases
under the following Section 5.04, CGI may construct and/or maintain at CGI's
expense a dedicated gas pipeline to the New Greenhouse from the TCP Gas
Facilities (hereinafter defined) upstream from the TCP gas header. Other than
the range of BTU content of the gas described above, CGI acknowledges that TCP
makes no representation as to the quality of the gas provided hereunder and CGI
accepts such gas "as is." TCP's obligation to furnish natural gas
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to CGI shall not commence until such time as a separate written easement
agreement, in form substantially similar to EXHIBIT B attached hereto, setting
forth the location of such metering and pipeline facilities and CGI's
obligations to maintain the same shall be executed between TCP and CGI. In no
event shall TCP have any obligation to construct the meters and facilities
described in this paragraph.
5.04 Additional Gas. CGI shall also have the right to arrange for the
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purchase of natural gas from third parties and the transportation of the gas to
the point at which TCP receives its gas from third parties (the "RECEIPT
POINT"). The TCP facilities that connect the Receipt Point to the Delivery Point
are herein called the "TCP GAS FACILITIES." To the extent that TCP Gas
Facilities have capacity in excess of that required for transporting gas
required from time to time for use in the Power Plant and for furnishing thermal
energy and gas to the Existing Greenhouse, TCP shall, at no charge to CGI except
for any applicable costs of compression, transport gas delivered at the Receipt
Point for CGI's account through the TCP Gas Facilities to the Delivery Point.
CGI contemplates that any gas purchased by it for delivery under this paragraph
shall meet or exceed general "pipeline quality" standards of Public Service
Company and Colorado Interstate Gas and shall be consistent with the quality of
the gas distributed in TCP's main gas lines. Under no circumstances shall TCP be
required to incur any cost or expense to expand or enhance the TCP Gas
Facilities to accommodate gas purchased by CGI for delivery to TCP and
redelivery to CGI.
5.05 Pressure. TCP shall provide gas at the low pressure side of TCP's gas
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headers in excess of 100 psig but in no event greater than 150 psig.
5.06 Payment. CGI shall pay TCP monthly for all natural gas supplied by
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TCP to CGI under this Agreement at the rate equal to TCP's full incremental
monthly costs (as may be adjusted pursuant to Section 5.07 below) of producing,
obtaining, and delivering such gas averaged in accordance with the methodology
illustrated in the SCHEDULE 5.06 attached hereto. Such price is inclusive of all
commodity gathering, transportation, treatment, compression, reservation,
standby and backup charges and taxes, and CGI shall not reimburse TCP for any
additional charges. There shall be no additional charge for the transportation
of gas through the TCP Gas Facilities.
5.07 Metering
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(a) CGI shall install, own, operate, and maintain a meter (or
meters) at the Delivery Point to meter deliveries of gas to CGI. The changing of
charts and calibrating and adjusting of this meter shall be done by CGI, at
CGI's expense. TCP may install, maintain and operate such check measurement
equipment as it may desire but such equipment shall not interfere in any way
with the operation of CGI's measurement equipment.
(b) The accuracy of the measuring equipment at the Delivery Point
shall be tested at regular intervals of not less than once each six (6) months.
Notice of the time and
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nature of each test shall be given by CGI to TCP sufficiently in advance to
permit convenient arrangement for TCP's representative to be present. If, upon
testing of any metering device owned and operated by CGI, such metering device
is found to be inaccurate by two percent (2%) or less, previous readings of such
equipment will be considered correct in computing the deliveries of gas
hereunder but such equipment will immediately be adjusted to record accurately.
If, upon testing, any such measuring equipment is found to be inaccurate by more
than two percent (2%), the meter shall be immediately calibrated to measure
correctly and any previous readings of such equipment will be corrected to zero
error for any period which is known definitely or agreed upon, but in case the
period is not known definitely or agreed upon, such correction will be for a
period covering one-half of the time elapsed since the last test. Further, the
costs of providing natural gas for such period shall be recalculated pursuant to
Section 5.06 above based on volumes adjusted to account for such inaccuracies.
Either party may require a special test of the Delivery Point meter. If any such
test is requested by TCP and, upon such test the measuring equipment is found to
be registering within two percent (2%) of accuracy, the cost of such test will
be charged to TCP; otherwise the cost of all such tests will be borne by CGI. If
for any reason the meter was out of service or out of repair so that the period
of inaccuracy cannot be estimated or computed from the reading thereof, the
amount of gas delivered through the period such meter is out of service or out
of repair will be estimated and agreed upon by the parties hereto upon the basis
of the best data available by using the first of the following methods which is
feasible:
(i) by using the registration of any check meter, if installed and
accurately registering;
(ii) by correcting the error, if the percentage of error is ascertainable
by calibration, test, or mathematical calculation; or
(iii) by estimating the quantity of gas delivered during the preceding
periods under similar conditions when the meter was registering
accurately.
ARTICLE VI
INSURANCE
6.01 Casualty Insurance. Subsequent to substantial completion of the New
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Greenhouse and at all times thereafter throughout the Term of this Agreement,
CGI shall continuously maintain in force and effect the following insurance
coverage:
(i) property damage insurance on an all risk basis including
coverage against damage or loss caused by earth movement
(including but not limited to earthquake, landslide, subsidence,
and volcanic eruption) and flood and providing (i) coverage for
the New Greenhouse in a minimum aggregate
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amount equal to the full insurable value of the New Greenhouse,
(ii) coverage for foundations and other property below the
surface of the ground, and (iii) soft costs defined as attorneys
fees, engineering and other consulting costs, and permit fees
that may be incurred due to damage to the premises in a minimum
amount of $500,000. "Full insurable value" means the full
replacement value of the New Greenhouse, including any
improvements and equipment without deduction for physical
depreciation and/or obsolescence; all such policies may have
deductibles of not greater than $50,000; and
(ii) boiler and machinery insurance coverage at the New Greenhouse,
written on a comprehensive form basis for all insurable objects,
including but not limited to pressure vessels, electrical
turbines and equipment, motors, air tanks, boilers, machinery,
pressure piping, or any other similar objects located on or
adjacent to the New Greenhouse in a minimum aggregate amount
equal to the "full insurable value" (as defined above), of the
New Greenhouse, and expediting expenses in the amount of
$100,000 (with losses to be adjusted on a full replacement
value); all such policies may have deductibles of not greater
than $50,000.
Prior to the time that CGI is required to maintain the foregoing insurance
coverage, CGI shall maintain or cause its contractors to maintain adequate
insurance coverage with respect to such of the foregoing risks as shall then be
applicable, including builder's risk coverage with delay in start up coverage
endorsement during construction.
6.02 Liability Insurance. Throughout the Term of this Agreement, CGI and
-------------------
TCP shall each continuously maintain in force the following insurance coverage:
(i) commercial general liability insurance on an occurrence basis
against claims for personal injury (including bodily injury and
death) and property damage, with coverage for products completed
operations, blanket contractual, explosion, collapse and
underground coverage, broad form property damage, and personal
injury, with a $1,000,000 minimum limit per occurrence for
combined bodily injury and property damage and a $2,000,000
aggregate annual limit;
(ii) workers' compensation insurance as required by state laws,
including employer's liability insurance for all employees in
the amount of not less than the minimum statutory requirements;
and
(iii) automobile liability with limits of Two Million Dollars
($2,000,000) per occurrence with no aggregate limitation.
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6.03 Certain Policy Requirements. All insurance policies required under
---------------------------
paragraph 6.03 shall be written by responsible and accredited companies of
recognized standing authorized to do business in the State of Colorado, with a
Best's Key Rating Guide rating of "A-X" or better (except for Lloyds of London,
AEGIS, Colorado Compensation Insurance Authority or other companies acceptable
to TCP), and shall provide that the policies shall not be cancelable except upon
sixty (60) days' prior written notice by the insurer to the party to this
Agreement which is not the owner of the policy, and to any mortgagee of the New
Greenhouse. All liability policies shall be endorsed (i) to provide a
severability of interests or cross liability clause; and (ii) that the insurance
shall be primary and not excess to or contribution with any insurance or self-
insurance maintained by others. CGI's policies shall be endorsed to name TCP,
any mortgagee of the New Greenhouse, their respective officers, agents,
partners, and such other parties as may reasonably be requested by TCP as
additional insured parties, as their interests may appear. TCP's policies shall
be endorsed to name CGI, its managers, agents, and such other parties as may
reasonably be requested by CGI as additional insured parties, as their interests
may appear. Each party shall deliver to the other a copy of such policies (or,
in lieu of policies of insurance, certificates of insurance if then acceptable
to such recipient) prior to the commencement of any work on the New Greenhouse,
and a copy of any renewal policy (or certificate of insurance if then acceptable
to TCP) shall be delivered to TCP and to any mortgagee of the New Greenhouse at
least fifteen (15) days prior to the termination date of any expiring policy.
TCP's liability insurance policy shall provide that in the event of injury as a
result of the sole negligence of TCP, to persons or property on the CGI
Property, TCP's liability coverage shall be primary, and in the event of injury
to such persons as a result of the joint or concurrent negligence of CGI and
TCP, the liability coverage of TCP and CGI shall contribute in proportion to the
negligence of the insured parties. CGI's liability insurance policy shall
provide that in the event of injury, as a result of the sole negligence of CGI
to persons or property on the Thermo Property, CGI's liability coverage shall be
primary and in the event of injury to such persons as a result of the joint or
concurrent negligence of TCP and CGI the liability insurance coverage of TCP and
CGI shall contribute in proportion to the negligence of the insured parties.
6.04 Waiver of Subrogation. CGI hereby waives, on behalf of itself and on
---------------------
behalf of all carriers of the insurance required to be maintained pursuant to
paragraph 6.01, above, all claims, by subrogation or otherwise, which such
waiving party might otherwise have against TCP for loss or damage to the New
Greenhouse, and for legal liability arising out of perils insured against in
accordance with such requirements of this Agreement, but only if this waiver
does not or will not invalidate, limit, or otherwise restrict coverage.
6.05 Exculpation for Property Damage. All personal property of every kind
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and description, including without limitation growing crops and agricultural
products that may at any time be in, at or on the New Greenhouse, shall be kept
in, at or on the CGI Property at CGI's sole risk, or at the risk of those
claiming under CGI. Without limitation of the foregoing waivers of claims and
subrogation, TCP shall not be liable for any damage to said personal property or
any loss of business by CGI however arising, including without limitation from
the bursting, overflowing, or leaking of water or pipes, from the malfunction of
the heat transfer subsystem, or
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from other heating, electrical, or plumbing fixtures, from electric wires, from
gas or odors, from acts of other persons on or in the vicinity of the Thermo
Property or from any other cause in any other manner whatsoever, except for the
grossly negligent or willfully tortious acts of TCP.
ARTICLE VII
INDEMNIFICATION
7.01 By CGI.
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(a) Subject to such waivers and limitations of liability as are
specifically provided hereunder, CGI shall at all times defend, indemnify and
save TCP, TCP's partners, and their respective shareholders, directors,
officers, agents and employees and any lender providing secured financing to TCP
and such lender's shareholders directors, officers, agents and employees
(collectively "INDEMNITEES") harmless from any and all damages relating to the
New Greenhouse, the CGI Property and the Easements, and from any damages that
may occur or be claimed by or with respect to any party, person or persons,
entity, property or chattels in, on, or about the New Greenhouse, or on the CGI
Property or the Easements, resulting in whole or in part from any negligent or
willfully tortious act done or omission by or through CGI, any affiliate of CGI,
or any third party in the New Greenhouse or on the CGI Property or the
Easements, or resulting from CGI's, any such affiliate's or any such third
party's use, non-use, or occupancy of the New Greenhouse in any manner contrary
to the requirements of this Agreement.
(b) Without limiting the generality of the foregoing, CGI shall,
except to the extent of such waivers and limitations, defend, indemnify and hold
the Indemnitees free and harmless from and against all liability, loss, cost,
damage and expense (including without limitation attorneys' and consultants'
fees and expenses) incurred in connection with the environmental compliance,
clean-up and other response obligations imposed under any "ENVIRONMENTAL LAWS"
(as defined in the Rocky Mountain TSA and the Supplemental Agreement thereto
dated April 7, 1993 (the "SUPPLEMENTAL AGREEMENT")) or in connection with third-
party claims relating to or in connection with any violation by CGI or its
affiliates, agents, employees, contractors, sublessees, successors or assigns of
any Environmental Law or in connection with any "MATERIALS OF ENVIRONMENTAL
CONCERN" (as defined in the Rocky Mountain TSA and the Supplemental Agreement)
used, generated, treated, stored or otherwise located on the New Greenhouse, CGI
Property or the Easements, or released by CGI or threatened to be released by
CGI in, on, under, from or affecting the Power Plant or the Thermo Property or
the Easements, except to the extent resulting from Indemnitee's negligence or
intentionally tortious acts or omissions. CGI shall notify the Indemnitees
promptly of any notice, advice or communication from any federal, state,
regional or local governmental entity and instrumentalities thereof or any other
source having jurisdiction (collectively, "GOVERNMENTAL AUTHORITY") with
respect to Materials of Environmental Concern released by or threatened to be
released by CGI which may be in, on, under, or released from or affecting the
Power Plant or the Thermo Property. CGI shall also maintain at the New
Greenhouse and the CGI Property, and
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keep available for inspection during ordinary business hours and following
reasonable notice by the Indemnitees, accurate and complete records of all
investigations, studies, sampling and testing conducted, and any and all
response actions taken, by CGI or, to its knowledge, by any Governmental
Authority or other person in respect of Materials of Environmental Concern
released by or threatened to be released by CGI which may be in, on, under,
released from or affecting the Power Plant or the Thermo Property or the
Easements.
(c) The foregoing covenants of indemnity shall survive expiration or
termination of this Agreement, and shall be construed as supplementary to and
not be construed to conflict with or limit any other covenant of indemnity
contained in this Agreement.
7.02 By TCP.
------
(a) Subject to such waivers and limitations of liability as are
specifically provided hereunder, TCP shall at all times defend, indemnify and
save CGI and CGI's shareholders, directors, officers, agents and employees
(collectively "INDEMNIFIED PERSONS") harmless from any and all damages relating
to the Power Plant, and from any damages that may occur or be claimed by or with
respect to any party, person or persons, entity, property or chattels in, on, or
about the Power Plant or the Thermo Property exclusive of the Leased Land and
the Easements, resulting in whole or in part from any negligent or willfully
tortious act done or omission by or through TCP, any affiliate of TCP, or any
third party in the Power Plant or on the Thermo Property exclusive of the Leased
Land and the Easements, or resulting from TCP's, any such affiliate's or any
such third party's use, non-use or occupancy of the Power Plant in any manner
contrary to the requirements of this Agreement.
(b) Without limiting the generality of the foregoing, TCP shall,
except to the extent of such waivers and limitations, defend, indemnify and hold
the Indemnified Persons free and harmless from and against all liability, loss,
cost, damage and expense (including without limitation attorneys' and
consultants' fees and expenses) incurred in connection with the environmental
compliance, clean-up and other response obligations imposed under any
Environmental Laws or in connection with third-party claims relating to or in
connection with any violation by TCP or its affiliates, agents, employees,
contractors, sublessees, successors or assigns of any Environmental Law or in
connection with any Materials of Environmental Concern (as defined in the Rocky
Mountain TSA and the Supplemental Agreement) used, generated, treated, stored or
otherwise located in or on the Power Plant or Thermo Property (exclusive of the
Leased Land), or released by TCP or threatened to be released by TCP in, on,
under, from or affecting the CGI Property, except to the extent resulting from
the negligence or intentionally tortious acts or omissions of the Indemnified
Persons. TCP shall notify the Indemnified Persons promptly of any notice,
advice or communication from any Governmental Authority with respect to
Materials of Environmental Concern released by or threatened to be released by
TCP which may be in, on, under, or released from or affecting the CGI Property.
TCP shall also maintain at the Power Plant and Thermo Property, and keep
available for inspection during ordinary business hours and following reasonable
notice by the Indemnified
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Persons, accurate and complete records of all investigations, studies, sampling
and testing conducted, and any and all response actions taken, by TCP or, to its
knowledge, by any Governmental Authority or other person in respect of Materials
of Environmental Concern released by or threatened to be released by TCP which
may be in, on, under, released from or affecting the CGI Property.
(c) The foregoing covenants of indemnity shall survive expiration or
termination of this Agreement, and shall be construed as supplementary to and
not be construed to conflict with or limit any other covenant of indemnity
contained in this Agreement.
ARTICLE VIII
DEFAULT; REMEDIES
8.01 Default. Should TCP or CGI fail to make any payment required to be
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made to the other under this Agreement within five (5) days after such payment
is due and payable, or should CGI fail to purchase and receive from TCP the
quantities of thermal energy required under Article IV, above, or to
continuously maintain in force and effect the insurance required of it under
Article VI, above, or should either party fail to perform any other covenant or
comply with any other condition required to be performed or complied with by
such party within thirty (30) days after written demand by the other party to
perform or comply, said non-performing party shall be deemed to be in default of
its obligations under this Agreement.
8.02 Remedies. In the event such default is not cured within the
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applicable cure period (if any), the non-defaulting party shall be entitled to
terminate this Agreement upon ten (10) additional days' written notice if the
default has not been cured within such additional period, and in addition (or in
the alternative) pursue any and all remedies available to it at law or in
equity, including without limitation the remedy of specific performance. To the
maximum extent permitted by law, should either party be in default under this
Agreement the defaulting party covenants and agrees to pay and discharge all
reasonable costs and expenses which shall be incurred by the non-defaulting
party arising out of such default, in enforcing the covenants and agreements of
this Agreement, including without limitation reasonable attorneys' fees.
Notwithstanding the foregoing, in no event shall either party be liable for any
consequential damages, damages for lost business, lost profits, or opportunities
therefor, or business interruption, any claim or remedy therefor being
specifically waived by each of the parties.
8.03 Disputes Resolution.
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A. Unless any third party or parties providing financing to TCP shall
object thereto not later than upon selection of the arbitration panel as
hereinafter provided, all claims, disputes, and other matters in question
arising out of or relating to this Agreement, or the breach thereof, shall, in
lieu of court action, be submitted to arbitration in Weld County, Colorado
before a panel of three (3) arbitrators. This agreement to arbitrate shall be
specifically enforceable under the
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arbitration laws of the State of Colorado. Demand for arbitration must be made
within a reasonable time after the claim, dispute, or other matter in question
has arisen. In no event shall the arbitration be made after the date when
institution of legal or equitable proceedings based on such claims, dispute, or
other matter in question would be barred by the applicable statute of
limitations.
B. The arbitrators shall be appointed in the following manner:
(1) The claimant shall give notice in writing to that effect to the
respondent and shall in such notice appoint the first arbitrator
to the panel.
(2) The respondent shall, within ten (10) days by notice in writing
to the claimant, appoint a second arbitrator to the panel, and if
the respondent shall fail to do so within the ten (10) day period
such appointment may (at the request of the claimant) be made by
any judge who is willing to so designate an arbitrator and who is
at the time serving on the court of general jurisdiction for Weld
County.
(3) The two arbitrators appointed under subparagraphs (1) and (2),
above, shall within ten (10) days appoint the third arbitrator to
the panel, and if they shall fail to do so within the ten (10)
day period such appointment shall (at the request of either
party) be made in like manner as is provided for alternate
appointment under subparagraph (2), above.
No person shall be appointed to act as an arbitrator unless such person shall be
qualified by a minimum of ten (10) years' experience in the operation of or as a
consultant to the cogeneration or commercial greenhouse industries, or a minimum
of ten (10) years' experience in the private practice of law in a discipline
relevant to such industries. No person shall be appointed as an arbitrator if
such person is known to the party appointing the arbitrator to have some then
existing business or professional relationship with the party making the
appointment, or some interest or duty which conflicts or may conflict with such
person's duty to decide the question under arbitration fairly and objectively.
Should any arbitrator(s) be appointed who shall appear, at any time prior to the
announcement by the arbitrators of their final award, to have a conflict of
interest, the position and views of such arbitrator(s) shall be disregarded by
the other(s) and if such disregard would result in the remaining arbitrator(s)
being equally divided on the outcome, the remaining arbitrator(s) shall promptly
appoint disinterested arbitrator(s) to succeed the interested arbitrator(s)
before concluding the arbitration. Any willful attempt by either party to
conceal a conflict of interest on the part of an arbitrator appointed by such
party shall constitute fraud on the arbitration.
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C. Notwithstanding any provisions of law or rule of arbitration to the
contrary:
(1) The panel of arbitrators so appointed shall promptly fix a
reasonable time and place for receiving submissions or
information from the parties concerned or from any other persons
that they think fit and such panel may make such other inquiries
and require such other evidence as may be necessary for
determining the matter before them.
(2) If within a period of ninety (90) days after the date of the
appointment of the said panel a decision shall not have been
rendered by the panel or a majority thereof, a new panel of
arbitrators shall at the request of either party be appointed in
the manner aforesaid and the appointment of the previous panel
shall thereupon cease.
(3) The determination of the said panel of arbitrators shall be in
writing and shall be final and binding upon the parties concerned
except in the event of fraud, or agreed mistake, and judgment
upon such determination rendered by the arbitrators may be
entered in any court of competent jurisdiction. In addition to
establishment and enforcement of such judgment for damages as may
be awarded by the arbitrators, such judgment may establish the
basis for entry by such court of an injunction, decree of
specific performance, order of foreclosure, or such other legal
or equitable remedy as it may appear to said court that the party
receiving the award shall be entitled to under the circumstances.
(4) Claimant and respondent shall each bear the costs and expenses of
the arbitrator appointed by it or on its behalf, and also the
costs and expenses of the third arbitrator shall be paid by
either claimant or respondent, or shall be apportioned among
parties to the arbitration in such proportions as the panel of
arbitrators shall in the circumstances consider proper.
(5) Any party to the arbitration may cause to be joined in the
arbitration any third party who is willing to be joined and whose
presence in the arbitration may be necessary or desirable for a
complete and final resolution of the claim, dispute, or other
matter in question. After such joinder, such third parties shall
have all rights of any other party to the arbitration, except
that such third parties shall not participate in the selection or
replacement of members of the arbitration panel. Refusal by such
third parties to be joined shall not impair the effectiveness of
the arbitration as between the claimant and the respondent.
(6) Any party to the arbitration shall be entitled, in accordance
with an expedited schedule which shall be determined by the panel
upon request
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by any such party, to obtain discovery through depositions,
interrogatories, demands for admissions and requests for
production and inspection of documents and reports as provided
for in the Colorado Rules of Civil Procedure, and should disputes
arise with respect to such discovery procedures the party seeking
discovery shall be entitled to apply to the court of general
jurisdiction in Weld County, Colorado to enforce such rules.
(7) A stenographic record of all arbitration proceedings shall be
made upon request of any party to the arbitration, the cost of
which shall be shared equally among all parties, and no party
shall be entitled to receive a copy of the transcript of
proceedings except upon payment of such party's respective pro
rata share of such cost.
(8) The arbitrators shall be required to make detailed findings of
fact, conclusions of law, and award.
(9) Except as is herein otherwise expressly provided or may be agreed
by all parties to the arbitration, the arbitrators shall be
governed by the Commercial Arbitration Rules of the American
Arbitration Association (or its successor organization) then in
effect.
These directions for arbitration shall be interpreted under the laws of
Colorado. If at any time it is not possible to establish an arbitration in
accordance with the foregoing, arbitration shall nevertheless be conducted in
accordance with substitute procedures which shall be as nearly as may be
practical in accordance with these prescribed procedures, and resort may be had
to the court of general jurisdiction of Weld County, Colorado to establish the
same.
ARTICLE IX
MISCELLANEOUS
9.01 Maintenance and Repair; Casualty. Throughout the Term of this
--------------------------------
Agreement, and except as may otherwise be provided under other sections of this
Agreement or in any of the easement agreements referred to herein, TCP and CGI
shall each use their best efforts to keep and maintain in a state of good and
safe condition and repair and in compliance with all applicable laws the lines,
pipes, fixtures, and other facilities located on the Thermo Property (excluding
the Easements and Leased Land) and CGI Property (including the Easements),
respectively, used from time to time in connection with the furnishing of
Services under this Agreement. In the event of damage by fire or other
casualty, TCP shall repair, as expeditiously as practical, damage to such lines,
pipes, fixtures, and other facilities located on the Thermo Property, and CGI
shall repair, as expeditiously as practical, damage to such lines, pipes,
fixtures, and other facilities located on the CGI Property. Under no
circumstances shall either
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party be in default of its obligations to maintain and repair if such party is
prevented from, or delayed in, making such repairs under the terms of any deed
of trust covering its respective property or other related loan documents.
Nothing in this paragraph 9.01 shall be construed to limit any waivers or
exculpation extended to TCP under paragraph 6.02, above. Further, nothing herein
shall be construed to impose upon TCP or any lender of TCP any obligation to
maintain or repair any lines, pipes, fixtures or other facilities in the event
such lender forecloses or is in the process of foreclosing upon the Thermo
Property or any part thereof, or has exercised any of its other remedies so as
to directly or indirectly control the affairs of TCP, provided that if such
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lenders subsequently dispose of TCP as a going concern to any successor person
or entity which continues the operation of the Power Plant then such successor
person or entity shall, if this Agreement shall otherwise be in full force and
effect, be bound by the maintenance and repair obligations of this Section 9.01.
9.02 Regulatory Compliance. In the event that any governmental agency or
---------------------
authority should assert and continue to maintain that performance by TCP of any
of its obligations hereunder is subject to modification or control by such
agency or authority in the exercise of its regulatory jurisdiction, TCP shall
inform CGI promptly and both parties shall cooperate in efforts to obtain a
release from such asserted jurisdiction. If they are unable to do so within
ninety (90) days after such jurisdiction is first asserted, TCP shall have the
continuing right to terminate immediately such portion of this Agreement as is
asserted to be subject to regulatory jurisdiction. If TCP terminates for this
reason, it shall cooperate with CGI's efforts to obtain such services from
public utilities or other third parties reasonably acceptable to CGI, and shall
provide reasonable assistance to CGI in such efforts; provided, however, that
while such cooperation and assistance shall not be construed to require the
granting of any easement, right-of-way, or license with respect to the Thermo
Property, or the Power Plant, TCP shall use all reasonable efforts to support
CGI's efforts to obtain any such easement, right-of-way or license.; provided
that TCP shall have no obligation to perform any actions which would subject it
to additional regulatory control or jurisdiction.
9.03 Force Majeure. Subject to the provisions of Section 9.01 above, the
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obligations of TCP to supply Services hereunder shall be suspended for so long
as TCP is prevented from performing such obligations by an act of God, strike,
fire, flood, explosion, failure to obtain necessary materials or supplies
(including without limitation failure by the City to supply services or
utilities under the Annexation Agreement), equipment failure (provided TCP has
maintained in good faith, consistent and adequate maintenance practices
thereon), or any other similar cause (a "FORCE MAJEURE"). The obligations of
CGI to make payments hereunder with respect to any specific Services shall be
suspended during any period in which such Services are so suspended. The
foregoing notwithstanding, no occurrence or circumstance shall give rise to a
condition of Force Majeure unless such occurrence or circumstance is not
reasonably within the control of and could not, in the exercise of reasonable
diligence, have been avoided by the affected party. Each party shall use its
best efforts to cause all conditions of Force Majeure to be alleviated as soon
as is reasonably possible, but nothing herein shall be construed to require the
settlement of strikes or labor disputes in any manner or at any time other than
in the manner and
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at the time which is within the discretion of the party affected thereby.
Further notwithstanding the foregoing, CGI shall at all times use its best
efforts to continue to purchase and receive thermal energy in accordance with
Article IV.
9.04 Annexation Agreement; Compliance with Laws. In addition to its other
------------------------------------------
obligations under this Agreement, CGI shall at all times utilize the water and
wastewater discharge Services in such a manner which will not cause TCP to
violate any terms or conditions of the Annexation Agreement or any applicable
law, permit or rule or regulation of any governmental agency having jurisdiction
over TCP or CGI (each an 'Applicable Law"). In the event CGI's utilization of
the water and wastewater discharge Services causes (or would cause) TCP to
violate any of the terms or conditions of the Annexation Agreement or an
Applicable Law, TCP shall notify CGI, TCP may suspend providing such Services
until such time as the reason for the violation has been alleviated, and CGI
shall indemnify and save TCP harmless from any liabilities and obligations to
the City resulting from such violations. Under such circumstances, CGI assumes
full responsibility to obtain, at its cost, water and wastewater services
directly from the City or other third parties.
9.05 Savings Clause. If any clause or provision of this Agreement shall be
--------------
held by final judgment of a court of competent jurisdiction to be illegal,
invalid, or unenforceable, then it is the intention of the parties that the
remainder of this Agreement shall not be affected thereby, and in lieu of each
clause or provision of this Agreement that is illegal, invalid, or
unenforceable, there shall be added as a part of this Agreement a clause or
provision as similar in terms to such illegal, invalid, or unenforceable clause
or provision as may be possible without being illegal, invalid, or
unenforceable. If such reformation cannot be accomplished, the offending
provision shall be stricken and the remainder of this Agreement shall remain in
full force and effect; provided, however, that if such offending provision
cannot be reformed without resulting in a material change in the contractual
relationship between the parties, thereby depriving either or both of the
parties of the benefit of the fundamental economic bargain herein provided, this
Agreement shall become voidable upon demand of the party whose economic
interests are thus impaired.
9.06 Entire Agreement. This Agreement, together with all Exhibits attached
----------------
hereto, the easement agreements referred to herein, and the contract of sale
pursuant to which Thermo Greeley I, Inc. has sold the CGI Property to CGI,
constitute the entire agreement between the parties hereto and supersede all
prior and contemporaneous agreements, representations and understandings of the
parties, both written and oral, regarding the subject matter of this Agreement.
This Agreement may not be amended nor any rights hereunder waived except by an
instrument in writing signed by the party to be charged with such amendment or
waiver and delivered by such party to the party claiming the benefit of such
amendment or waiver.
9.07 Parties in Interest. This Agreement shall be binding upon, and shall
-------------------
inure to the benefit of, the parties hereto and their respective successors and
assigns, and nothing contained in this Agreement, express or implied, is
intended to confer upon any other person or entity any
-22-
benefits, rights or remedies. Notwithstanding any provision of this Agreement,
TCP, in connection with a sale of the assets of the Power Plant, or CGI, in
connection with a sale of the assets of the New Greenhouse, or otherwise, may
propose to the other party that this Agreement be terminated, but no such
termination should take place except on mutual agreement of the parties. In
addition TCP may elect to discontinue providing for CGI one or more of the
Services described herein, provided that TCP arranges for the substitute
performance thereof, under substantially the same terms and conditions as set
forth herein, by a third party which is satisfactory to CGI in its discretion,
reasonably exercised. In such event, TCP shall be released from further
liability to CGI for any failure to supply such Services in accordance with this
Agreement. The foregoing provisions respecting the sale of the assets of the
Power Plant shall have no application to any foreclosure upon or subsequent sale
of the Thermo Property or any part thereof by any lender of TCP. In the event
that any lender of TCP exercises any of its other remedies so as to directly or
indirectly control the affairs of TCP and elects to discontinue the operations
of the Power Plant, such lender shall have the right to terminate the Services
being provided under this Agreement upon 90 days' prior written notice to CGI.
No lender of TCP shall have the right to terminate the Easements under this
Agreement other than upon the occurrence of a default by CGI hereunder or under
such Easements and the expiration of any applicable notice and cure period set
forth in Article 8 hereof or therein, or as otherwise provided in the
Nondisturbance Agreement of even date herewith between CGI and the lenders of
TCP.
9.08 References. References made in this Agreement, including the use of
----------
a pronoun, shall be deemed to include where applicable, masculine, feminine,
singular or plural, individuals, partnerships or corporations.
9.09 Language. The language in all parts of this Agreement shall be
--------
construed according to its fair meaning and not strictly for or against TCP or
CGI. The caption of each section is added as a matter of convenience only and
shall be considered of no effect in the construction of any provision of this
Agreement.
9.10 Future Liability. Termination of this Agreement shall not release any
----------------
party hereto from any liability or obligation hereunder resulting from any acts,
omissions or events happening prior to such termination or expiration, or
thereafter in case by the terms of this Agreement it is provided that anything
shall or may have to be done after termination or expiration hereof.
9.11 Relationship. Nothing contained in this Agreement shall be deemed or
------------
construed by the parties or by any third person or court to create the
relationship of principal and agent or of partnership or of joint venture or of
any association between TCP and CGI, and neither the method of computation of
payments nor any other provisions contained in this Agreement nor any acts of
the parties shall be deemed to create any relationship between TCP and CGI other
than the relationship of a provider and user of the Services for the purposes
set forth herein.
-23-
9.12 Counterparts. This Agreement may be executed by the parties in any
------------
number of counterparts, each of which shall be deemed an original instrument but
all of which together shall constitute but one and the same instrument.
9.13 Notices. All notices and communications required or permitted under
-------
this Agreement shall be in writing, and any communication or delivery hereunder
shall be deemed to have been duly made when personally delivered, or if sent by
facsimile or U.S. mail, when received in legible form during normal business
hours, by the party charged with such notice and addressed as set forth below:
If to CGI:
---------
Colorado Greenhouse, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
If to TCP:
---------
Thermo Cogeneration Partnership, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, III
Either party may, by written notice so delivered to the other party, change the
address or individual to which delivery shall thereafter be made.
9.14 Governing Law. This Agreement and the transactions contemplated
-------------
hereby shall be construed in accordance with, and governed by, the laws of the
State of Colorado.
9.15 Condition Precedent. Anything herein to the contrary notwithstanding,
-------------------
TCP shall have no obligations under this Agreement until this Agreement shall
have been consented to by the holder(s) of any deeds of trust currently
encumbering the TCP Property and the lenders under any loan documents related
thereto.
-24-
IN WITNESS WHEREOF, the parties have executed this Agreement.
THERMO COGENERATION PARTNERSHIP, L.P.,
a Colorado limited partnership
By: Thermo Ft. ▇▇▇▇▇▇, ▇.▇.,
a General Partner
By: Thermo Ft. ▇▇▇▇▇▇ I, Inc.,
the General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇, III
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, III
President
COLORADO GREENHOUSE, INC.,
a Delaware corporation
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
-25-
JOINDER
-------
Rocky Mountain and CG acknowledge that certain of this Agreement
provisions relating to the Easements may affect the Existing Greenhouse, the
Rocky Mountain TSA, and the Greenhouse Operation and Management Agreement, and
hereby join in the execution of this Agreement for the purpose of consenting to
such provisions and for the purpose of consenting to (and if necessary,
agreeing to join in) the execution of the easement agreements referred to herein
and in the Contract of Sale between Thermo Greeley I, Inc. and CGI, to the
extent such easements affect the Existing Greenhouse.
ROCKY MOUNTAIN PRODUCE LIMITED
LIABILITY COMPANY
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Printed name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Title: Management Committee Member
--------------------------------
COLORADO GREENHOUSE LIMITED
LIABILITY COMPANY
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Printed name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Title: Chief Executive Officer
--------------------------------
-26-
EXHIBIT A
ORDER NUMBER: 96049198 C-7
LEGAL DESCRIPTION
CONSIDERING THE WEST LINE ON THE NW 1/4 OF SECTION 34, TOWNSHIP 2 NORTH,
RANGE 66 WEST, AS BEARING N 00 DEGREES 37 FEET 37 INCHES W ON A BEARING
BASED ON A COLORADO STATE PLANE, NORTH ZONE, MODIFIED COORDINATE GRID AS
SHOWN ON GPS SURVEY CONTROL MAP, FORT ▇▇▇▇▇▇, COLORADO, DATED MARCH 3,
1993, WITH ALL OTHER BEARINGS BEING RELATIVE THERETO;
THAT PART OF THE NW 1/4 OF SECTION 34, TOWNSHIP 2 NORTH, RANGE 66 WEST OF
THE 6TH P.M., COUNTY OF WELD, STATE OF COLORADO, BEING MORE PARTICULARLY
DESCRIBED AS:
BEGINNING AT THE WEST 1/4 CORNER OF SAID SECTION 34, THENCE N 00 DEGREES 37
FEET 57 INCHES W ON A BEARING BASED ON A COLORADO STATE PLANE, NORTH ZONE,
MODIFIED COORDINATE GRID AND ALONG THE WEST LINE OF SAID NW 1/4 OF SECTION
34 A DISTANCE OF 40.00 FEET; THENCE N 89 DEGREES 25 FEET 58 INCHES E
PARALLEL WITH AND 40.00 FEET NORTHERLY OF THE SOUTH LINE OF SAID NW 1/4 OF
SECTION 34 A DISTANCE OF 1070.65 FEET TO THE TRUE POINT OF BEGINNING;
THENCE N 00 DEGREES 28 FEET 23 INCHES W PARALLEL WITH THE EAST LINE OF SAID
NW 1/4 OF SECTION 34 A DISTANCE OF 1453.44 FEET; THENCE N 89 DEGREES 22
FEET 03 INCHES E PERPENDICULAR TO SAID WEST LINE OF THE NW 1/4 OF SAID
SECTION 34 A DISTANCE OF 801.51 FEET TO A POINT 777.91 FEET WESTERLY OF
SAID EAST LINE OF THE NW 1/4 OF SECTION 34; THENCE S 00 DEGREES 28 FEET 23
INCHES E PARALLEL WITH AND 777.91 FEET WESTERLY OF SAID EAST LINE OF THE NW
1/4 OF SECTION 34 A DISTANCE OF 1454.35 FEET TO A POINT 40.00 FEET
NORTHERLY OF SAID SOUTH LINE OF THE NW 1/4 OF SECTION 34; THENCE S 89
DEGREES 25 FEET 58 INCHES W PARALLEL WITH SAID SOUTH LINE OF THE NW 1/4 OF
SECTION 34 A DISTANCE OF 801.51 FEET TO THE TRUE POINT OF BEGINNING.
TO BE KNOWN AS:
▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ OF FORT ▇▇▇▇▇▇, WELD COUNTY,
COLORADO.
EXHIBIT B
---------
EASEMENT DEED AND AGREEMENT
---------------------------
THIS EASEMENT DEED AND AGREEMENT (this "Agreement") is made this ___ day of
__________, 1997, by and between THERMO COGENERATION PARTNERSHIP, L.P., a
Colorado limited partnership ("Thermo") and COLORADO GREENHOUSE, INC., a
Delaware corporation ("CGI").
RECITALS
--------
A. Thermo is the owner of certain land (the "Thermo Property") located in
the City of Ft. ▇▇▇▇▇▇, County of Weld and State of Colorado, as more
particularly described on Exhibit A attached hereto and made part hereof, and
---------
of certain buildings and improvements located thereon, including a gas-fired
cogeneration power plant (the "Power Plant").
B. CGI is the owner of certain land (the "CGI Property") consisting of
approximately 26.752 acres of land adjacent to the Thermo Property, as more
particularly described on Exhibit B attached hereto and made part hereof.
---------
CGI intends to construct a 20 acre greenhouse (the "Greenhouse") on the CGI
Property.
C. Pursuant to a Services Supply Agreement (the "Services Supply
Agreement") dated June 10, 1997 between Thermo and CGI, Thermo has agreed to
provide certain utility services to CGI for use in connection with the operation
of the Greenhouse and the parties have agreed in the Services Supply Agreement
to execute and deliver this Agreement.
D. CGI desires to obtain from Thermo and Thermo desires to grant to CGI
certain easements over, on and through the Thermo Property in order for CGI to
construct, operate and maintain [DESCRIBE IMPROVEMENTS] in connection with such
services, on the terms and conditions set forth herein. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Services
Supply Agreement.
AGREEMENT
---------
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby acknowledged by both parties, the parties hereby agree as follows:
1. Grant of Easement. Thermo hereby grants, sells, transfers and conveys
-----------------
to CGI a nonexclusive easement (the "General Easement") in and to, over and
across, under and through that strip of real property labeled as Easement
Property (the "Easement Property"), as approximately depicted on Exhibit C
---------
attached hereto and made part hereof, located on the Thermo Property, for the
uses set forth in Section 3.
B-1
2. Grant of Access Easement. Thermo hereby grants, sells, transfers and
------------------------
conveys to CGI a nonexclusive easement ("Access Easement") across, over and
through the Thermo Property necessary for pedestrian and vehicular access to the
Easement Property and for all purposes necessary in connection with the
construction of [DESCRIBE IMPROVEMENTS] pipelines (the "Improvements") located
within the Easement Property. The location of such Access Easement shall be
proposed by CGI in writing and depicted on a survey delivered to Thermo, and
subject to approval by Thermo, which approval shall not be unreasonably
withheld. After Thermo has approved the location of the Access Easement, Thermo
may request that any such Access Easement be relocated by CGI to a location
specified by Thermo in its reasonable determination. CGI shall not be permitted
to use any Access Easement prior to the determination of the location of such
Access Easement in accordance with the foregoing provisions. Upon request by
Thermo after construction is complete, CGI shall, at CGI's expense, execute and
record a certificate to such effect in the real property records of Weld County,
Colorado.
Terms. a. The term of the General Easement shall commence as of the date
-----
hereof and shall continue until the earlier of (i) termination pursuant to
Section 10 below, or (ii) mutual agreement by the parties.
b. The term of the Access Easement shall commence as of the date
hereof and shall expire upon completion of the construction of the Improvements.
3. Use. The General Easement and Access Easement (together, the
---
"Easements") shall be used for the following uses and purposes:
a. Improvements. The General Easement shall be for the
------------
construction, reconstruction, replacement, repair, maintenance, operation, and
removal of the Improvements, as CGI from time to time may elect.
b. Access. During construction of the Improvements, CGI shall have
------
the right to access the Easement Property across any Access Easement established
pursuant to Section 2 above. The Access Easement shall also be for access for
CGI, and its agents, tenants, subtenants, employees, consultants, contractors
and other licensees and invitees along the full length of the Easement Property.
CGI shall indemnify Thermo for any loss, cost, damage or expense suffered or
incurred by Thermo (including any damage or injury to the Power Plant or the
Thermo Property) or any injury to any person or property resulting from CGI's
use of the Easements other than as contemplated hereunder or in violation of
this Agreement. In the event Thermo reasonably believes that CGI has allowed
any material amounts of Materials of Environmental Concern to be discharged and
transported through the waste water pipeline jointly used by Thermo and CGI (the
"Jointly Used Line") and CGI fails to cease such discharge and transportation
within 48 hours of receiving notice thereof from Thermo, then Thermo shall have
the right to terminate this Agreement insofar as it relates to CGI's rights in
the Jointly Used Line. For purposes of this
B-2
Section 4 an amount of Materials of Environmental Concern shall be "material" if
as a consequence of such discharge and transportation either CGI or Thermo could
be (i) obligated for any clean-up, (ii) liable for penalties or fines, (iii) in
danger of losing any permit or license, (iv) in breach of any agreement with the
City of Fort ▇▇▇▇▇▇, or (v) otherwise in violation of any applicable
environmental law.
4. Restrictions. Any and all construction, maintenance, repair,
------------
replacement and reconstruction of the Improvements and related facilities
accomplished or directed by CGI shall be done: (a) upon reasonable prior notice
to Thermo (provided that no notice shall be required for routine inspections and
--------
maintenance and work on the Easement Property which does not involve more
workers or equipment than routine inspections and maintenance) and (b) in a
manner so as to minimize, to the extent reasonably possible, any inconvenience
to the normal operation of the Thermo Property and the improvements thereon.
Once such construction, maintenance, repair, replacement or reconstruction is
completed, CGI shall restore the affected portion of the Easement Property to as
near its original condition as practicable.
5. Noninterference. Subject to the rights of others under any of the
---------------
Permitted Exceptions (as defined below) and the provisions of Section 8 below,
Thermo shall not have, nor grant any other party, the right to use the Thermo
Property in any manner which would interfere with or obstruct the use of the
General Easement or Access Easement as contemplated hereunder.
6. Transferability. The Easements and the rights of CGI to the Easements
---------------
shall be for the benefit of CGI and its successors and assigns, to the extent
such successors and assigns are permitted under the provisions of the Services
Supply Agreement.
7. Warranties of Thermo. Thermo warrants that, subject only to the
--------------------
exceptions listed on Exhibit D (the "Permitted Exceptions"), Thermo is the fee
---------
simple owner of the Thermo Property free and clear of all liens and
encumbrances, subject only to the Permitted Exceptions. Thermo covenants to
defend the rights granted hereby, subject only to the Permitted Exceptions.
8. Indemnity by CGI. CGI at all times (i) shall comply fully with all
----------------
laws, rules, regulations, and ordinances of any Governmental Authority having
jurisdiction with respect to the storage, use or release at the Easement
Property and the portion of the Thermo Property covered by the Access Easement
of hazardous or toxic substances, (ii) shall not use, treat, store, transport or
release or threaten to release any Materials of Environmental Concern in, on,
under, from or affecting the Easement Property and the portion of the Thermo
Property covered by the Access Easement in any manner or quantity which may
result in any clean-up obligation or liability under any Environmental Law, and
(iii) shall keep the Easement Property and the portion of the Thermo Property
covered by the Access Easement free of any lien imposed pursuant to
Environmental Laws, and shall pay or cause to be paid when due any and all costs
complying with Environmental Laws and responding to the presence, release or
threatened release of Materials of Environmental Concern, because of acts or
omissions of CGI or its affiliates, agents, employees, contractors, sublessees,
successors or assigns (including without
B-3
limitation all damages, liabilities, expenses and costs of all third party
claims). If CGI fails to do any of the foregoing, then to the extent that Thermo
or any lender under the Amended and Restated Construction and Term Loan
Agreement dated February 28, 1995, and their respective partners, shareholders,
directors, officers, agents, employees, successors or assigns sustains any
lability, loss, cost, damage or expense (including attorneys' and consultants'
fees and expenses) arising out of the presence, release or threatened release by
CGI or its affiliates, agents, employees, contractors, sublessees, successors or
assigns of Materials of Environmental Concern, Thermo and its lenders shall be
held harmless from and against all such liability, loss, cost, damage and
expense. Thermo or its lenders may, upon such prior written notice to CGI as is
reasonable under the circumstances, take any action necessary in the reasonable
judgment of such responding party, to respond to such presence, release or
threatened release, and the cost of such response action shall be borne by CGI.
9. Reservation of Rights. Thermo reserves the right to use and enjoy the
---------------------
Easement Property and the portion of the Thermo Property covered by the Access
Easement; provided that Thermo shall not construct or maintain any structure on
--------
the Easement Property and the portion of the Thermo Property covered by the
Access Easement, or in any manner impair or materially interfere with the
exercise of any of the rights herein granted.
10. Default; Remedies.
-----------------
(a) Should Thermo or CGI fail to perform any covenant or comply with
any condition required to be performed under this Agreement or the Services
Supply Agreement within 60 days after written demand by the other party (or such
longer period as may be reasonably required to cure such failure to perform or
comply if such cure is commenced within such 60-day period), the non-performing
party shall be in default of its obligations under this Agreement.
(b) In the event a default under this Agreement is not cured within
the applicable cure period (if any), the non-defaulting party shall be entitled
to pursue any and all remedies available to it at law or in equity, including
without limitation the remedy of specific performance, or termination of this
Agreement upon ten (10) additional days' written notice. To the maximum extent
permitted by law, should either party be in default under this Agreement the
defaulting party covenants and agrees to pay and discharge all reasonable costs
and expenses which shall be incurred by the non-defaulting party arising out of
such default, in enforcing the covenants and agreements of this Agreement,
including without limitation reasonable attorneys' fees. Notwithstanding the
foregoing, in no event shall either party be liable for any consequential
damages, damages for lost business, lost profits, or opportunities therefor, or
business interruption, any claim or remedy therefor being specifically waived by
each of the parties.
(c) Upon the expiration or earlier termination of the Services Supply
Agreement, this Agreement shall terminate and the parties hereto shall have no
further rights or
B-4
obligations hereunder except that (i) CGI shall promptly sever and close off, in
a good and workmanlike manner and in accordance with any applicable laws and
codes, at the property line between the Thermo Property and the CGI Property,
any pipelines that have been installed in the General Easement to provide water,
sewer or gas service to the CGI Property over, across or through the Thermo
Property, and (ii) both parties shall join in executing and recording at CGI's
expense a termination of this Agreement in the real property records of Weld
County, Colorado.
11. No Waiver. No provision of this Agreement may be waived or
---------
relinquished except by written instrument signed by the party to be charged with
such waiver. Failure by any party to this Agreement to enforce any provision of
this Agreement shall not constitute a waiver of such provision, and no waiver by
any party to this Agreement of any provision of this Agreement on one occasion
shall constitute a waiver of any other provision or of the same provision on
another occasion.
12. Captions; Definitions. The section and subsection captions used in
---------------------
this Agreement are included for convenience only, and shall be irrelevant to the
construction of any provision of this Agreement. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Services
Supply Agreement.
13. Amendment. The provisions of this Agreement may be abrogated,
---------
modified, rescinded, or amended in whole or in part only by Thermo and CGI and
their respective successors and assigns by written instrument duly executed and
recorded in the real property records of Weld County, Colorado, upon the prior
written consent of those lenders which are the beneficiaries under that certain
Construction and Term Loan Deed of Trust, Security Agreement and Assignment of
Rents, dated as of April 7, 1993 and recorded in the real property records of
the office of the Clerk and Recorder of Weld County, Colorado, at Reception No.
02328322, as amended to date, executed by Thermo and encumbering the Thermo
Property.
14. Severability. If any clause or provision of this Agreement shall be
------------
held invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby.
15. Governing Law. The validity and effect of this Agreement shall be
-------------
determined in accordance with the laws of the State of Colorado.
B-5
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement under seal as of the day and year first above written.
Date: ____________ THERMO:
THERMO COGENERATION PARTNERSHIP, L.P.
By: Thermo Ft. ▇▇▇▇▇▇, ▇.▇., a General Partner
By: Thermo Ft. ▇▇▇▇▇▇ I, Inc., the General
Partner
By:____________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, III, President
Date: ____________ CGI:
COLORADO GREENHOUSE, INC.
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
)▇▇.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇)
The foregoing instrument was acknowledged before me this ____ day of June,
1997 by ▇▇▇▇▇ ▇▇▇▇▇▇, III, President of Thermo Ft. ▇▇▇▇▇▇ I, Inc., the general
partner of Thermo Ft. ▇▇▇▇▇▇, ▇.▇., a General Partner of THERMO COGENERATION
PARTNERSHIP, L.P., on behalf of said partnership.
Witness my hand and official seal.
My commission expires:__________________________.
___________________________________
[SEAL] Notary Public
STATE OF COLORADO )
)ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this ____ day of June,
1997 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive of COLORADO GREENHOUSE, INC., on
behalf of said corporation.
Witness my hand and official seal.
My commission expires:__________________________.
___________________________________
[SEAL] Notary Public
B-7
EXHIBIT A
LEGAL DESCRIPTION: (THERMO PLANT SITE)
THAT PART OF THE NORTHEAST 1/4 OF SECTION 33, AND THE ▇▇▇▇▇▇▇▇▇ ▇/▇
▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ OF WELD, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS:
BEGINNING AT THE WEST 1/4 CORNER OF SAID SECTION 34;
THENCE NORTH 00 DEGREES 10 MINUTES 58 SECONDS WEST ON AN ASSUMED BEARING ALONG
THE WEST LINE OF THE NORTHWEST 1/4 OF SAID SECTION 34 A DISTANCE OF 40.00 FEET
TO THE TRUE POINT OF BEGINNING;
THENCE SOUTH 89 DEGREES 59 MINUTES 12 SECONDS WEST PARALLEL WITH AND 40.00 FEET
NORTH OF THE EAST-WEST CENTERLINE OF SAID SECTION 33 A DISTANCE OF 409.95 FEET
TO ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇;
THENCE NORTHERLY ALONG SAID EAST LINE OF WELD COUNTY ROAD 31, THE FOLLOWING 5
COURSES:
NORTH 11 DEGREES 06 MINUTES 11 SECONDS WEST A DISTANCE OF 569.37 FEET TO THE
BEGINNING OF A CURVE TO THE LEFT;
THENCE ALONG SAID CURVE TO THE LEFT, HAVING A RADIUS OF 5759.58 FEET, A DELTA
ANGLE OF 6 DEGREES 22 MINUTES 00 SECONDS, A CHORD THAT BEARS NORTH 14 DEGREES 19
MINUTES 11 SECONDS WEST -659.67 FEET, AND AN ARC LENGTH OF 640.00 FEET;
THENCE NORTH 17 DEGREES 30 MINUTES 11 SECONDS WEST A DISTANCE OF 327.18 FEET TO
THE BEGINNING OF A CURVE OF THE RIGHT.
THENCE ALONG SAID CURVE TO THE RIGHT, HAVING A RADIUS OF 2251.83 FEET, A DELTA
ANGLE OF 17 DEGREES 26 MINUTES 00 SECONDS, A CHORD THAT BEARS NORTH 08 DEGREES
47 MINUTES 11 SECONDS WEST 685.55 FEET, AND AN ARC LENGTH OF 688.20 FEET;
THENCE NORTH 00 DEGREES 04 MINUTES 11 SECONDS WEST A DISTANCE OF 406.67 FEET TO
A POINT 30.00 FEET SOUTH OF THE NORTH LINE OF SAID NORTHEAST 1/4 OF SECTION 33;
THENCE LEAVING SAID ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ 89 DEGREES 36
MINUTES 49 SECONDS EAST PARALLEL WITH SAID NORTH LINE OF THE NORTHEAST 1/4 OF
SECTION 33 A DISTANCE OF 213.32 FEET TO THE WEST LINE OF THE NORTH 3/4 OF THE
EAST 1/2 OF THE NORTHEAST 1/4 OF THE NORTHEAST 1/4 OF SAID SECTION 33;
THENCE SOUTH 00 DEGREES 10 MINUTES 06 SECONDS EAST ALONG SAID WEST LINE OF THE
N3/4 E1/2 NE3/4 NE1/4 OF SECTION 33 A DISTANCE OF 962.31 FEET TO THE ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇/▇ E1/2 NE1/4 NE1/4 OF SECTION 33;
THENCE NORTH 89 DEGREES 4 MINUTES 13 SECONDS EAST ALONG THE SOUTH LINE OF SAID
N3/4 E1/2 NE1/4 NE1/4 OF SECTION 33 A DISTANCE OF 660.45 FEET TO SAID EAST LINE
OF THE NORTHEAST 1/4 OF SECTION 33;
THENCE NORTH 89 DEGREES 41 MINUTES 29 SECONDS EAST ALONG THE SOUTH LINE OF THE
NORTH 3/4 OF THE WEST 1/2 OF THE WEST 1/2 OF THE NORTHWEST 1/4 OF THE NORTHWEST
1/4 OF SAID SECTION 34 A DISTANCE OF 331.83 FEET TO THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇/▇ W1/2 W1/2 NW1/4 NW1/4 OF SECTION 34;
THENCE NORTH 00 DEGREES 07 MINUTES 47 SECONDS WEST ALONG THE EAST LINE OF SAID
N3/4 W1/2 W1/2 NW1/4 NW1/4 OF SECTION 34 A DISTANCE OF 734.60 FEET TO A POINT
260.00 FEET SOUTH OF THE NORTH LINE OF THE NORTHWEST 1/4 OF SECTION 34;
THENCE NORTH 89 DEGREES 34 MINUTES 30 SECONDS EAST PARALLEL WITH AND 260.00 FEET
SOUTH OF THE NORTH LINE OF SAID NORTHWEST 1/4 OF SECTION 34 A DISTANCE OF 745.07
FEET;
THENCE SOUTH 00 DEGREES 01 MINUTES 29 SECONDS EAST PARALLEL WITH THE EAST LINE
OF SAID NORTHWEST 1/4 OF SECTION 34 A DISTANCE OF 902.38 FEET TO A POINT 1493.44
FEET NORTH OF THE SOUTH LINE OF SAID NORTHWEST 1/4 OF SECTION 34;
THENCE SOUTH 89 DEGREES 49 MINUTES 02 SECONDS WEST PERPENDICULAR TO SAID WEST
LINE OF THE NW1/4 OF SAID SECTION 34 A DISTANCE OF 882.51 FEET TO THE EASTERLY
LINE OF A PUBLIC SERVICE CO. TRANSMISSION LINE EASEMENT;
THENCE SOUTH 00 DEGREES 10 MINUTES 06 SECONDS EAST ALONG SAID EASTERLY LINE OF
SAID EASEMENT A DISTANCE OF 119.61 FEET TO THE SOUTHEASTERLY CORNER OF SAID
EASEMENT;
THENCE SOUTH 59 DEGREES 42 MINUTES 58 SECONDS WEST ALONG THE SOUTHERLY LINE OF
SAID EASEMENT A DISTANCE OF 222.06 FEET TO SAID WEST LINE OF THE NW1/4 OF
SECTION 34;
THENCE SOUTH 00 DEGREES 10 MINUTES 58 SECONDS EAST ALONG SAID WEST LINE OF THE
NW1/4 OF SECTION 34 A DISTANCE OF 1221.16 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINS: 43.642 ACRES MORE OR LESS.
EXHIBIT B
Order Number:96049198 C-7
LEGAL DESCRIPTION
CONSIDERING THE WEST LINE OF THE NW 1/4 OF SECTION 34, TOWNSHIP 2 NORTH,
RANGE 66 WEST, AS BEARING N 00 DEGREES 37 FEET 37 INCHES W ON A BEARING
BASED ON A COLORADO STATE PLANE, NORTH ZONE, MODIFIED COORDINATE GRID AS
SHOWN ON GPS SURVEY CONTROL MAP, FORT ▇▇▇▇▇▇, COLORADO, DATED MARCH 3,
1993, WITH ALL OTHER BEARINGS BEING RELATIVE THERETO;
THAT PART OF THE NW 2/4 OF SECTION 34, TOWNSHIP 2 NORTH, RANGE 66 WEST OF
THE 6TH P.M., COUNTY OF WELD, STATE OF COLORADO, BEING MORE PARTICULARLY
DESCRIBED AS.
BEGINNING AT THE WEST 1/4 CORNER OF SAID SECTION 34, THENCE N 00 DEGREES 37
FEET 57 INCHES W ON A BEARING BASED ON A COLORADO STATE PLANE, NORTH ZONE,
MODIFIED COORDINATE GRID AND ALONG THE WEST LINE OF SAID NW 1/4 OF SECTION
34 A DISTANCE OF 40.00 FEET THENCE N 89 DEGREES 25 FEET 58 INCHES E
PARALLEL WITH AND 40 FEET NORTHERLY OF THE SOUTH LINE OF SAID NW 1/4 OF
SECTION 34 A DISTANCE OF 1070.65 FEET TO THE TRUE POINT OF BEGINNING;
THENCE N 00 DEGREES 28 FEET 23 INCHES N PARALLEL WITH THE EAST LINE OF SAID
NW 1/4 OF SECTION 34 A DISTANCE OF 1453.44 FEET; THENCE N 89 DEGREES 22
FEET 03 INCHES E PERPENDICULAR TO SAID WEST LINE OF THE NW 1/4 OF SAID
SECTION 34 A DISTANCE OF 801.32 FEET TO A POINT 777.91 FEET WESTERLY OF
SAID EAST LINE OF THE NW 1/4 OF SECTION 34; THENCE S 00 DEGREES 28 FEET 23
INCHES E PARALLEL WITH AND 777.91 FEET WESTERLY OF SAID EAST LINE OF THE NW
1/4 OF SECTION 34 A DISTANCE OF 1454.35 FEET TO A POINT 40.00 FEET
NORTHERLY OF SAID SOUTH LINE OF THE NW 1/4 OF SECTION 34, THENCE S 89
DEGREES 24 FEET 58 INCHES W PARALLEL WITH SAID SOUTH LINE OF THE NW 1/4 OF
SAID SECTION 34 A DISTANCE OF 801.51 FEET TO THE TRUE POINT OF BEGINNING.
so be known as:
▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ OF FORT ▇▇▇▇▇▇,
WELD COUNTY; COLORADO.
EXHIBIT C
Easement Property Legal Description
To be determined after completion of the utilities.
EXHIBIT D
This Policy does not insure against loss or damage by reason of the following:
1. Rights or claims of parties in possession not shown by the public
records.
(Affects Parcels 2 and 3 only)
2. Easements, or claims of easements, not shown by the public records.
(Affects Parcels 2 and 3 only)
3. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, and any facts which a correct survey and inspection of the
premises would disclose and which are not shown by the public records.
(Affects Parcels 2 and 3 only)
4. Any lien, or right to a lien, for services, later or material theretofore
or hereafter furnished, imposed by law and not shown by the public
records.
5. Taxes due and payable; and any tax, special assessments, charge or lien
imposed for water or sewer service, or for any other special taxing
district. The 1992 General taxes paid, according to tax certificate dated
March 16, 1993.
6. All coal and other minerals within or underlying said lands, the
exclusive right to prospect in and upon said land for coal and other
minerals therein, or which may be supposed to be therein, and to mine for
and remove from said land, all coal and other minerals which may be found
thereon by anyone, the right of ingress, egress and regress upon said
land to prospect for, mine and remove any and all such coal or other
minerals, and the right to use so much of said land as may be convenient
or necessary for the right of way to and from such prospect places or
mines, and for the convenient and proper operation of such prospect
places, mine and for roads and approaches thereto or for removal
therefrom of coal, mineral, machinery or other material, and the right of
said Union Pacific Company to maintain and operate its railroad in its
present form of construction, and to make any changes in the form of
construction or method of operation of said railroad, as reserved by
Union Pacific Railroad Company in Deed recorded June 7, 1901 in Book 183
at Page 231, and any interests therein or rights thereunder.
(Affects NE1/4 Section 33)
7. The ▇▇▇▇▇▇ High Line Ditch and any and all rights of way therefore, as
evidenced by instrument filed February 2, 1907 under Reception No.
116647, in which the specific location is not defined.
(Affects NW1/4 and W1/2SW1/4 Section 34)
Page 6
8. Reservations of (1) right of proprietor of any penetrating vein or lode to
extract his ore; and (2) right of way for any ditches or canals constructed
by authority of United States, in U.S. Patent recorded October 20, 1909 in
Book 132 at Page 257.
(Affects NW1/4 Section 34)
9. Easement and right of way to construct, operate, maintain, change or remove
electric transmission and/or distribution line, as granted to Public
Service Company of Colorado by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, et al, recorded February
17, 1942 in Book 1090 at Page 288, affecting the following described
property:
A strip of land 45 feet in width parallel to and contiguous with the County
Road on the North side of the NE1/4 of Section 33, Township 2 North, Range
66 West
(Affects NE1/4 Section 33)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
10. An easement for the construction, reconstruction, operation and maintenance
of conductors and conduits for the transmission of electricity together
with the rights of ingress and egress as granted to Public Service Company
of Colorado by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, et al, by instrument recorded February
27, 1964 in Book 508 under Reception No. 1430152, described as follows:
Parcel A - The East 17 feet of the E1/2 of Section 33, Township 2 North,
Range 66 West of the 6th P.M. Except parcel conveyed to Public Service
Company of Colorado, recorded in Book 1513 at Page 39.
Parcel B - The West 13 feet of the W1/2 of Section 34, Township 2 North,
Range 66 West of the 6th P.M. Except parcel conveyed to Public Service
Company of Colorado, recorded in Book 1513 at Page 39.
(Affects Parcels 1 and 3)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
11. Oil and gas lease between ▇▇▇ ▇▇▇▇▇▇▇▇, Agent and Attorney in Fact for ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated May 27, 1970, recorded June 11, 1970 in Book 627 as Reception No.
1548965, and any interests therein or rights thereunder.
Page 7
Note: Extension of the above lease as claimed by Affidavit of
Production, pursuant to CRS ▇▇-▇▇-▇▇▇, by ▇▇▇▇▇▇-▇▇▇▇ Petroleum
Co., recorded August 5, 1975 in Book 744 as Reception No. 1666396
and re-recorded September 10, 1975 in Book 747 as Reception No.
1669444, and by Amoco Production Company recorded January 30,
1975 in Book 758 as Reception Nos. 1680147 and 1680181, and by
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., recorded November 15, 1976 in Book 782 as
Reception No. 1703543, corrected by instrument recorded February
25, 1975 in Book 785 as Reception No. 1706371, and by ▇. ▇.
▇▇▇▇, individually and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., as Trustee of the
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Trust dated May 4, 1982, recorded January
25, 1984 in Book 1019 as Reception No. 1954108, August 23, 1984
in Book 1041 as Reception No. 1979337, and January 29, 1985 in
Book 1056 as Reception No. 1996787.
(Affects Parcels 1 and 3)
12. Easement and right of way for the purpose of laying, constructing,
maintaining, operating, altering, replacing, and removing a pipeline with
necessary fittings, tie-overs, and appliances, for the transmission of
natural gas and all by-products thereof which can be transported through a
pipe line, together with the right of ingress and egress, as granted to
Colorado Interstate Corporation by ▇▇▇ ▇▇▇▇▇▇▇▇, Agent and Attorney in Fact
for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, recorded
February 7, 1973 in Book 685 as Reception No. 1606762, affecting the
following described property:
Said right of way and easement herein and hereby granted being 20 feet in
width throughout extending on, over and across the above described lands,
the center line of such right of way and easement being described as
follows:
Beginning at a point on the East property line of the NW1/4 of Section 34-
2N-66W, which point of beginning is a 527.7 feet in a Southerly direction
with and along said East property line from the Northeast corner of said
NW1/4 of Sec. 34; thence with and along the center line of said right of
way and easement 20 feet in width, South 78 degrees 22 minutes West, 2381
feet to a point in said NW1/4 of Sec. 34; thence across said NW1/4 Sec. 34
and NE1/4 of Sec. 33-2N-66W, North 89 degrees 32 minutes West, 992 feet to
a point; thence North 80 degrees 10 minutes West, 2006 feet to the point of
exit on the West property line of the NE1/4 of Sec. 33, which point is
711.8 feet in a Southerly direction with and along said West property line,
from the Northwest corner of said NE1/4 of Sec. 33-2N-66W.
(Affects Plant Site and Parcel 3)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
Page 3
13. Easement and right of way to lay, construct, maintain, alter, inspect,
repair, replace, change the size of, operate, and remove a pipeline for the
transportation of oil, gas, or other substances therein, together with the
right of ingress and egress, granted to Panhandle Western Gas Company by
▇▇▇ ▇▇▇▇▇▇▇▇, Agent and Attorney in Fact for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ by instrument recorded March 20, 1973 in
Book 687 as Reception No. 1609465.
(Affects NE1/4 Section 33 and SW1/4 Section 34)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
14. Easement and right of way for the purpose of laying, constructing,
maintaining, operating, altering, replacing and removing a pipe line, with
necessary fittings, tie-overs, and appliances for the transmission of
natural gas and all by-products thereof, as granted to Colorado Interstate
Gas Company, a Delaware corporation by Ranchero Development Corporation,
recorded August 23, 1976 in Book 775 as Reception No. 1696810, affecting
the following described property:
Tract 1: Beginning at a point on the East property line of the W1/2 of
Section 34, Township 2 North, Range 66 West, which point of beginning is
558 feet in a Southerly direction with and along said East property line
from the NE corner of said W1/2 of Section 34; thence with and along the
centerline of said right of way and easement, 66 feet in width, South 78
degrees 34 minutes West 2,379 feet to a point; thence North 89 degrees 15
minutes West 327 feet to the point of termination on the West property line
of the W1/2 of Section 34, which point is 1,051 feet in a Southerly
direction with and along said West property line from the NW corner of said
W1/2 Sec. 34-2N-66W.
Tract 2: Beginning at a point on the East property line of the NE1/4 of
Section 33, Township 2 North, Range 66 West, which point of beginning is
1,051 feet in a Southerly direction with and along said East property line
from the NE corner of said NE1/4 of Section 33; thence North 89 degrees 15
minutes West 664 feet to a point; thence North 89 degrees 15 minutes West
664 feet to a point; thence North 79 degrees 51 minutes West 2,007 feet to
the point of exit on the West property line of the E1/2 of Sec. 33-2N-66W,
which point if 730 feet in a Southerly direction with and along said West
property line from the NW corner of said NE1/4 Sec. 33-2N-66W.
(Affects Plant Site and Parcel 3)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
15. All interests in and to all of the oil, gas, and other minerals, as
conveyed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ by
deed recorded December 8, 1976 in Book 783 as Reception No. 1705355, and
any interests therein or rights thereunder.
(Affects Parcels 1 and 3)
Page 9
16. Easement and right of way to construct, maintain, lower, inspect, repair,
replace, operate and remove an underground pipe line and all appurtenances
necessary for the maintenance and operation of said line and for the
transportation of oil, natural gas and related substances, as granted to
Panhandle Eastern Pipe Line Company, a Delaware Corporation by Ranchero
Development Corporation, a Colorado Corporation, recorded May 25, 1977 in
Book 798 as Reception No. 1720098, affecting the following described
property:
That part of the E1/2 of the NE1/4 of Section 33, and that part of the
NW1/4 of Section 34, Township 2 North, Range 66 West, Weld County,
Colorado, more particularly described as a strip of land 50.00 feet in
width, the centerline of which is described as follows:
Beginning at a point on the East line of said NW1/4 of said Section 34,
said point being South 00 degrees 08 minutes 46 seconds West on an assumed
bearing a distance of 575.53 feet from the Northeast corner of said NW1/4;
thence South 77 degrees 38 minutes 58 seconds West for a distance or
2371.22 feet to a point; thence South 89 degrees 43 minutes 31 seconds West
for a distance of 339.50 feet to a point on the West line of said NW1/4 of
said Section 34, which is also the East line of said E1/2 of said NE1/4 of
said Section 33, said point being South 00 degrees 00 minutes 00 seconds
West a distance of 1071.55 feet from the Northeast corner of said E1/2,
thence continuing South 89 degrees 43 minutes 31 seconds West for a
distance of 674.70 feet to the end of line.
(Affects Plant Site and Parcel 3)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
17. Easement and right of way for the purpose of laying, constructing,
maintaining, operating, altering, replacing and removing two pipelines with
necessary fittings, tie-overs and appliances for the transmission of
natural gas and all by-products thereof, as granted to Colorado Interstate
Gas Company, a Delaware corporation by Ranchero Development Corporation,
recorded July 22, 1977 in Book 803 as Reception No. 1725230, affecting the
following described property:
Tract 1: Beginning at a point on the East property line of the W1/2 of
Section 34, Township 2 North, Range 66 West, which point of beginning is
551.9 feet in a Southerly direction with and along said East property line
from the NE corner of said W1/2 of Section 34; thence with and along the
centerline of said right of way and easement, 66 feet in width, South 78
degrees, 34 minutes West 2,377 feet to a point; thence North 89 degrees, 15
minutes West 326 feet to the point of termination on the West property line
of the W1/2 of Section 34, which point is 1,044.9 feet in a Southerly
direction with and along said West property line from the NW corner of said
W1/2 of Section 34-2N-66W.
Page 10
Tract 2: Beginning at a point on the East property line of the NE1/4 of
Section 33, Township 2 North, Range 66 West, which point of beginning is
1,044.9 feet in a Southerly direction with and along said East property
line from the NE corner of said NE1/4 of Section 33; thence with and along
the centerline of said right of way and easement, 66 feet in width, North
89 degrees 15 minutes West 666 feet to a point; thence North 79 degrees 51
minutes West 2,006 feet to the point of exit on the West property line of
said NE1/4 of Section 33, which point is 715.2 feet in a Southerly
direction with and along said West property line from the NW corner of said
NE1/4 of Section 33-2N-66W.
(Affects Plant Site and Parcel 3)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
18. Terms, agreements, provisions, conditions, obligations and easements as
contained in Surface Owner's Agreement by and between Ranchero Development
Corp., a Colorado Corporation, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., as Co-Trustees under that
certain Revocable Trust Agreement of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
and ▇▇▇▇▇▇▇▇ Petroleum Company recorded January 8, 1979 in Book 856 as
Reception No. 1777972
(Affects NE1/4 Section 33)
19. Terms, agreements, provisions and conditions as contained in Agreement by
and between City of Fort ▇▇▇▇▇▇ and Rennoc Corporation recorded September
22, 1981 in Book 948 as Reception No. 1869885.
(Affects Parcels 1 and 3)
Page 11
20. Easement and right of way to install, construct, maintain, alter, repair,
replace, reconstruct, operate and remove pipelines and related
appurtenances, fixtures or devises for the transportation of gas or oil, as
granted to Western Slope Gas Company, a Colorado corporation by Rennoc
Corporation, recorded June 13, 1983 in Book 999 as Reception No. 1930090,
affecting the following described property:
An easement 50 feet in width lying in a portion of the N1/2NE1/4 of Section
33 and the NW1/4NW1/4 of Section 34, Township 2 North, Range 66 West of the
6th P.M., being more particularly described as follows: Commencing at the
Northwest corner of said Section 34, thence South 62 degrees 30 minutes 21
seconds East, 402.94 feet; thence South 00 degrees 13 minutes 39 seconds
East, 71.05 feet to the True Point of Beginning; thence continuing South 00
degrees 13 minutes 39 seconds East, 747.04 feet; thence South 89 degrees 41
minutes 18 seconds West, 1017.30 feet; thence North 80 degrees 57 minutes
55 seconds West 1707.28 feet; thence South 09 degrees 02 minutes 05 seconds
West 381.78 feet; thence South 51 degrees 23 minutes 02 seconds West,
300.00 feet to a point of terminus on the Westerly property line.
(Affects Plant Site)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
21. Easement and right of way to install, construct, maintain, alter, repair,
replace, reconstruct, operate and remove pipelines and related
appurtenances, fixtures or devices for the transportation of gas or oil, as
granted to Western Slope Gas Company by Rennoc Corporation, recorded March
16, 1984 in Book 1023 as Reception No. 1959498, affecting the following
described property:
An easement 25 feet in width, the center line (pipeline) of the easement is
described as follows, to-wit:
An easement lying in a portion of the N1/2NE1/4 of Section 33 and the
NW1/4NW1/4 of Section 34, Township 2 North, Range 66 West of the 6th P.M.,
being more particularly described as follows: Assuming the bearing of the
North line of said Section 34 to be North 89 degrees 31 minutes 50 seconds
East and all other bearings to be relative thereto; Commencing at the
Northwest corner of said Section 34; thence South 62 degrees 02 minutes 10
seconds East, 398.06 feet; thence South 01 degrees 05 minutes 33 seconds
East, 70.04 feet, to the True Point of Beginning on the Northerly Property
line, thence continuing South 01 degrees 05 minutes 33 seconds East, 35.21
feet; thence South 00 degrees 13 minutes 39 seconds East, 710.58 feet to a
point approximately 20 feet North of the Colorado Interstate Gas Company
Spindle Lateral 6 inch pipeline; thence South 89 degrees 41 minutes 18
minutes West, 1043.18 feet, parallel with and adjacent to the C.I.G.
easement; thence continuing, parallel with and adjacent to the C.I.G.
easement, North 80 degrees 55 minutes 56 seconds West, 1672.49
Page 12
feet; thence South 08 degrees 45 minutes 09 seconds West, 295.87 feet,
across C.I.G's existing 6" and 8" pipelines; thence South 11 degrees 59
minutes 19 seconds West, 65.24 feet; thence South 49 degrees 58 minutes 43
seconds West, 293.67 feet, across the ▇▇▇▇▇▇ Canal; thence South 88 degrees
36 minutes 11 seconds West, 16.16 feet, to a point of Terminus on the
Westerly property line.
(Affects Plant Site)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
22. Easement and right of way to construct, reconstruct, operate, maintain and
remove such telecommunications facilities from time to time, as granted to
U S West Communications Inc., a Colorado Corporation by Thermo Carbonic
Inc., recorded July 28, 1992 in Book 1345 as Reception No. 02297470,
affecting the following described property:
A tract of land 8 feet wide in the NE1/4 Section 33, Township 2 North,
Range 66 West of the 6th P.M., Weld County, Colorado, the center line of
said 8 foot wide tract of land is described as follows: From the Northeast
corner of said Section 33; thence South 87 degrees 38 minutes 16 seconds
West 870.15 feet to the Point of Beginning, said point being 4 feet, more
or less, East of the East right of way line of Weld County Road 31; thence
South 00 degrees 04 minutes 09 seconds East 406.69 feet; thence
Southeasterly on a curve to the left, said curve having a radius of 2257.83
feet, a central angle of 17 degrees 26 minutes 00 seconds and an arc length
of 686.99 feet to the Point of Terminus.
(Affects Plant Site)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
23. Easement and right of way to construct, reconstruct, operate, maintain and
remove such telecommunications facilities from time to time, as granted to
U S West Communications Inc., a Colorado Corporation by Thermo Carbonic
Inc., recorded October 1, 1992 in Book 1352 as Reception No. 02305316,
affecting the following described property:
A tract of land 8 feet wide in the NE1/4 Section 33, Township 2 North,
Range 66 West of the 6th P.M., Weld County, Colorado, the centerline of
said 8 foot wide tract of land is described as follows: From the Northeast
corner of said Section 33; thence South 87 degrees 38 minutes 16 seconds
West 870.15 feet to the Point of Beginning; said point being 4 feet, more
or less, East of the East right of way line of Weld County Road 31; thence
South 00 degrees 04 minutes 09 seconds East 406.69 feet; thence
Southeasterly on a curve to the left, said curve having a radius of 2257.83
feet, a central angle of 17 degrees 26 minutes 00 seconds and an arc length
of 686.99 feet to the Point of Terminus
(Affects Plant Site)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
Page 13
24. Terms, agreements, provisions, conditions and obligations as contained in
Annexation Agreement by and between Thermo Carbonic, Inc., Rennoc
Corporation and The City of Fort ▇▇▇▇▇▇, Colorado, a Colorado municipal
corporation recorded October 1, 1992 in Book 1352 as Reception No.
02305317.
NOTE: Assignment of Annexation Agreement from Rennoc Corporation, a
Colorado Corporation and Thermo Carbonic, Inc., a Colorado
Corporation to Thermo Cogeneration Partnership, a Colorado
general partnership, recorded April 9, 1993 in Book 1377 as
Reception No. 02328317.
NOTE: Release recorded April 9, 1993 in Book 1377 as Reception No.
02328318.
NOTE: Assignment of Annexation Agreement from Thermo Cogeneration
Partnership, a Colorado general partnership to Thermo
Cogeneration Partnership, L. P., a Delaware limited partnership,
recorded April 9, 1993 in Book 1377 as Reception No. 02328319.
(Affects Parcels 1 and 3)
25. Terms, agreements, provisions, conditions and obligations as contained in
Easement by and between Public Service Company of Colorado, a Colorado
corporation and Thermo Cogeneration Partnership, a Colorado general
partnership recorded March 2, 1993 in Book 1372 as Reception No. 02323677.
NOTE: Notice of Assignment recorded April 13, 1993 in Book 1378 as
Reception No. 02323780.
(Affects Parcel 2)
26. Easement and right of way for a perpetual easement for the transmission and
distribution of electricity, as granted to Public Service Company of
Colorado, a Colorado Corporation by Thermo Cogeneration Partnership, a
Colorado General Partnership, recorded February 19, 1993 in Book 1371 as
Reception No. 02322325, affecting the following described property:
A parcel of land located in the N3/4 of the E1/2 of the W1/2 of the NW1/4
of the NW1/4 of Section 34, Township 2 North, Range 66 West of the 6th
P.M., being more particularly described as follows: Commencing at the
Northwest corner of said Section 34, whence the North quarter corner of
said Section 34 bears North 89 degrees 07 minutes 11 seconds East a
distance of 2657.40 feet; thence North 89 degrees 07 minutes 11 seconds
East along the Northerly line of said NW1/4 of Section 34 a distance of
332.18 feet; thence South 00 degrees 36 minutes 54 seconds East along the
Westerly line of said
Page 14
E1/2 of the W1/2 of the NW1/4 of the NW1/4 of Section 34 a distance of
260.00 feet to the Point of Beginning; thence North 89 degrees 07 minutes
11 seconds East along a line 260.00 feet Southerly of and parallel with the
Northerly line of said NW1/4 of Section 34 a distance of 125.00 feet;
thence South 00 degrees 36 minutes 54 seconds East along a line parallel
with and 125.00 feet Easterly of said Westerly line of the E1/2 of the W1/2
of the NW1/4 of the NW1/4 of Section 34 a distance of 734.90 feet; thence
South 89 degrees 14 minutes 09 seconds West along the Southerly line of
said N3/4 of the E1/2 of the W1/2 of the NW1/4 of the NW1/4 of Section 34 a
distance of 125.00 feet; thence North 00 degrees 36 minutes 54 seconds West
along the Westerly line of said E1/2 of the W1/2 of the NW1/4 of the NW1/4
of Section 34, a distance of 734.65 feet to the Point of Beginning;
(Affects Plant Site)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
27. Easement and right of way for the transmission and distribution of
electricity, as granted to Public Service Company of Colorado, a Colorado
corporation by Thermo Cogeneration Partnership, a Colorado general
partnership, recorded February 19, 1993 in Book 1371 as Reception No.
02322324, affecting the following described property:
A parcel of land located in the NE1/4 of Section 33 and the NW1/4 of
Section 34, in Township 2 North, Range 66 West of the 6th P.M., County of
Weld, State of Colorado, more particularly described as follows: Commencing
at the NE corner of said Section 33; thence South 0 degrees 38 minutes 05
seconds East, along the East line of said NE1/4 Section 33, a distance of
1377.87 feet to a point; thence South 89 degrees 09 minutes 37 seconds
West, and parallel to the North line of said NE1/4 section 33, a distance
of 80.41 feet to the True Point of Beginning; thence North 0 degrees 37
minutes 13 seconds West a distance of 57.80 feet to a point; thence North
59 degrees 15 minutes 51 seconds East a distance of 92.93 feet to a point
on the East line of said NE1/4 Section 33; thence continuing North 59
degrees 15 minutes 51 seconds East a distance of 106.49 feet to a point;
thence North 0 degrees 37 minutes 12 seconds West, a distance of 226.57
feet to a point on the South property line of the existing Ft. ▇▇▇▇▇▇
Substation, as recorded with the Weld County Clerk and Recorder in Book
1513, Page 39, Reception No. 1286668; thence North 89 degrees 14 minutes 09
seconds East, along the South line of said Fort ▇▇▇▇▇▇ Sub property, a
distance of 100.00 feet to a point; thence South 0 degrees 37 minutes 13
seconds East a distance of 284.43 feet to a point; thence South 59 degrees
15 minutes 51 seconds West a distance of 222.06 feet to a point on the East
line of said Section 33; thence continuing South 59 degrees 15 minutes 51
seconds West a distance of 92.96 feet to a point; thence North 0 degrees 37
minutes 13 seconds West a distance of 57.80 feet to the Point of Beginning.
Page 15
(Affects Plant Site)
As shown on Survey by Alpha Engineering Co. dated April 7, 1993.
28. Matters of survey as shown on ALTA/ACSM Land Title Survey Plat by Alpha
Engineering date of certification April 7, 1993, File No. 34-2N6-10,
including the following:
A. Weather Observation Tower, guy wire, anchors, underground electric
service line and access road.
B. Union Pacific Resources Oil Well #2 Ranchero 41-33 Lease Spindle Field
Well, oil well anchors, underground electric service line and access road.
C. 3" Fiberglass Flow Line.
D. Underground electric service lines, and overhead electric lines.
E. United Power Electric Transformer Pedestal, temporary breaker box
panels, underground electric service line to building, transformer and
breaker box panels, and underground telephone line and service line to
building.
F. 4" Gas Panhandle Eastern Pipe Line which is not described in
easements of record, which is shown on the survey described above as
running from a point Southerly of the Southwest corner of the Public
Service Company substation, as shown on said survey, in a slightly
Southwesterly direction to the Westerly boundary of the subject
property.
G. Narco ▇▇▇▇▇ No. 1 Gas Well, and dirt lease road thereto.
H. Electric Transmission easement as contained in instrument recorded
February 19, 1993 in Book 1371 as Reception No. 02322324, which lies
within the area contained in the 8 foot high chain link fence.
I. 6" Gas, Westgas Pipeline, over Parcel 2 only.
J. Weld County Road 16 over the Northerly 30 feet of Parcel 2 only.
(Affects Parcel 1 and 2)
29. All oil and gas and other minerals in, on, or under the above described
land, provided, however, that no portions of the above described land shall
be used by the grantors, their heirs, assigns or legal representatives for
the purpose of prospecting for, drilling for mining or recovery of any such
oil, gas and other mineral, oil, gas or other mineral will not be removed
to such an extent to undermine or disturb any structures which may be
erected on the above described property as reserved by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ also known as ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in the deed recorded September 16, 1958 in Book 1513 at
Page 39, and any interests therein or rights thereunder.
(Affects Parcel 2
Page 16
30. Oil and gas lease between Public Service Company of Colorado and ▇▇▇▇▇▇-
▇▇▇▇ Petroleum Company dated June 14, 1971, recorded July 19, 1971 in Book
650 as Reception No. 1571805, and any interests therein or rights
thereunder.
NOTE: Correction of Oil and Gas Lease recorded February 24, 1978 in
Book 760 as Reception No. 1681927.
Note: Extension of the above lease as claimed by Affidavit of
Production, pursuant to CRS ▇▇-▇▇-▇▇▇, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
recorded November 15, 1976 in Book 782 as Reception No. 1703543
and recorded December 23, 1976 in Book 785 as Reception No.
1706871 and by ▇. ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇, Inc., recorded January
29, 1985 in Book 1056 as Reception No. 1996787.
(Affects Parcel 2)
31. Covenants, Conditions, Restrictions, which do not contain a forfeiture or
reverter clause, but omitting restrictions, if any based on race, color,
religion, or national origin as contained in instrument recorded March 30,
1993 in Book 1375 as Reception No. 02326942, and any and all amendments and
supplements thereto.
(Affects Parcel 1)
32. Reservation of right of way for any ditches or canals constructed by
authority of the United States, in U.S. Patent recorded July 12, 1917 in
Book 333 at Page 109.
(Affects Parcel 3)
Page 17
33. Easement and right of way to construct, maintain, lower, inspect, repair,
replace, operate and remove an underground pipe line and all appurtenances
necessary for the maintenance and operation of said line and for the
transportation of oil, natural gas, and related substances, as granted to
Panhandle Eastern Pipe Line Company, a Delaware Corporation by Ranchero
Development Corporation and ▇▇▇ ▇▇▇▇▇▇▇▇, Attorney in Fact for ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇. as Trustees under that certain Revocable Trust Agreement of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dated September 21, 1967, recorded
December 5, 1974 in Book 728 as Reception No. 1649761, affecting the
following described property:
That part of the SW1/4 of Section 34, S1/2 of Section 33, and S1/2 of SE1/4
of Section 32, Township 2 North, Range 66 West, Weld County, Colorado, more
particularly described as a strip of land 50.00 feet in width, the
centerline of which is described as follows: Beginning at a point on the
East line of said SW1/4 of said Section 34; said point being North along
said East line a distance of 65.00 feet from the Southeast corner of said
SW1/4; thence turning a Southwesterly angle of 75 degrees 25 minutes 42
seconds to said East line and running for a distance of 38.64 feet to a
point; thence turning an angle to the right of 15 degrees 00 minutes 00
seconds and running 55.00 feet parallel to the South line of said SW1/4 for
a distance of 2607.73 feet to a point on the West line of said SW1/4 of
Section 34 which is also the East line of said S1/2 of Section 33, said
point being North along said West line a distance of 55.00 feet from the
Southwest corner of said SW1/4; thence turning an angle to the right of 00
degrees 06 minutes 26 seconds and running 55.00 feet parallel to the South
line of said S1/2 for a distance of 2642.95 feet to a point; thence turning
an angle to the left of 00 degrees 26 minutes 30 seconds and running 55.00
feet parallel to said South line for distance of 2644.64 feet to a point on
the West line of said S1/2 of said Section 33, which is also the East line
of said S1/2 of SE1/4 of Section 32, said point being North along said East
line a distance of 55.00 feet; thence turning an angle to the right of 00
degrees 07 minutes 55 seconds and continuing 55.00 feet parallel to the
South line of said S1/2 of the SE1/4 for a distance of 100.00 feet to the
end of the line.
(Affects Parcel 3)
Page 18
34. Easement and right of way to construct, maintain, lower, inspect, repair,
replace, operate, and remove an underground pipe line and all appurtenances
necessary for the maintenance and operation of said line and for the
transportation of oil, natural gas, and related substances, as granted to
Panhandle Eastern Pipe Line Company, a Delaware Corporation by Rennoc
Corporation, a Colorado Corporation, in the instrument recorded May 14,
1982 in Book 967 as Reception No. 1891623, the location of which is shown
in the map attached to said instrument.
(Affects Parcel 3)
35. Easement and right of way to construct, maintain, inspect, operate,
replace, change one or more underground electric line (3), padmounted
transformer bank and electrical meters, as granted to ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Oil
Inc. by Rennoc Corporation, recorded December 10, 1984 in Book 1052 as
Reception No. 01991536, affecting the following described property:
The right-of-way will be that portion of the E1/2 of the W1/2 of Section
34, Township 2 North, Range 66 West, 6th P.M: 15 feet in width on the West
side of the existing lease road. Said lease road beginning on the Southerly
boundary of Section 34 approximately 1980 feet East of the Southwest corner
of said section and then proceeding North a distance of 4320 feet and then
turning West a distance of 330 feet
(Affects Parcel 3)
36. Easement and right of way to construct, maintain, inspect, operate,
replace, change or remove one steel pipeline, as granted to Amoco
Production Company, a Delaware Corporation by Rennoc Corporation, recorded
June 17, 1985 in Book 1073 as Reception No. 02013588, affecting the
following described property:
A 50 foot construction R-O-W and a 18 foot permanent R-O-W whose center
line is for a pipeline located in Section 34, T.2N., R.66W., of the 6th
P.M., County of Weld, State of Colorado, more particularly described as:
Beginning at the S1/4 corner Section 34, thence North 87 degrees 25 minutes
10 seconds West 755.16 feet of the True Point of Beginning, thence East
70.7 feet, thence North 02 degrees 44 minutes East 490.0 feet, thence North
10 degrees 35 minutes West 290.5 feet, thence North 00 degrees 11 minutes
West 1009.0 feet, thence North 12 degrees 44 minutes East 233.6 feet,
thence North 17 degrees 29 minutes West 188.3 feet, thence North 00 degrees
35 minutes East 601.5 feet, thence North 07 degrees 20 minutes East 341.6
feet, thence North 08 degrees 42 minutes West 360.6 feet, thence North 00
degrees 11 minutes East 867.5 feet, thence North 89 degrees 32 minutes West
205.4 feet to end of line.
(Affects Parcel 3)
Page 19
37. Easement and right of way for the purpose of laying, constructing,
maintaining, operating, repairing, replacing and removing pipeline (with
fittings, tie-overs, cathodic protection equipment, all appliances
appurtenant thereto) for the transportation of oil, gas, or any other
liquids or substances, as granted to ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Oil Inc., a New Mexico
Corporation by Rennoc Corporation, a Colorado Corporation, in the
instrument recorded March 9, 1988 in Book 1187 as Reception No. 02133432,
the location of which is shown in the map attached to said instrument.
(Affects NE1/4SW1/4 Section 34 of Parcel 3)
38. Mortgage and Deed of Trust from Public Service Company of Colorado, a
Colorado Corporation to ▇▇▇▇▇▇ Guaranty Trust Company of New York formerly
Guaranty Trust Company of New York, to secure First Mortgage Bonds from
time to time issued, dated December 1, 1939, recorded December 1, 1939 in
Book 1053 at Page 272, and any and all supplements thereto.
(Affects Parcel 2)
39. Terms and Conditions which contain leases and options to purchase as
contained in Thermo Supply Lease Agreement between Thermo Cogeneration
Partnership, a Colorado General Partnership and Rocky Mountain Produce
Limited Liability Company, as disclosed to Transamerica Title Insurance
Company.
NOTE: Subordination Non-disturbance and Attornment Agreement recorded
April 9, 1993 in Book 1377 as Reception No. 02328326.
40. Construction and Term Loan Deed of Trust, Security Agreement and Assignment
of Rents from Thermo Cogeneration Partnership, L.P., a Delaware limited
partnership to the Public Trustee of the County of Weld for the use of The
Prudential Insurance Company of America, as lead agent for the Security
Parties to secure $202,000,000.00 dated April 7, 1993, recorded April 9,
1993 in Book 1377 as Reception No. 02328322.
41. Security interest under the Uniform Commercial Code affecting the subject
property, notice of which is given by Financing Statement from Thermo
Cogeneration Partnership, L.P., debtor(s), to The Prudential Insurance
Company of America, as Lead Agent, secured party, recorded April 9, 1993 in
Book 1377 as Reception No. 02328323 and filed April 9, 1993 as Filing No.
U0250958.
42. Terms, provisions, and easements as contained in Surface Use Agreement
between Thermo Cogeneration Partnership, L.P., a Delaware limited
partnership and Amoco Production Company, a Delaware corporation recorded
April 9, 1993 in Book 1377 as Reception No. 02328329.
(Affects Plant Site)
Page 20
43. Terms, provisions, and easements as contained in Surface Use Agreement
between Thermo Cogeneration Partnership, L.P., a Delaware limited
partnership and Basin Exploration, Inc., a Colorado corporation, recorded
April 9, 1993, in Book 1377 as Reception No. 02328330.
(Affects Plant Site)
44. Terms, provisions, easements and costs as contained in Agreement (Coalbed
Methane Gas) between Union Pacific Land Resources Corporation and Thermo
Cogeneration Partnership, L.P., a Delaware limited partnership recorded
April 9, 1993 in Book 1377 as Reception No. 02328335.
(Affects Plant Site)
45. Terms, provisions, easements and costs as contained in Agreement (Oil, Gas
and Associated Liquid Hydrocarbons) between Union Pacific Resources
Company and Thermo Cogeneration Partnership, L.P., a Delaware limited
partnership recorded April 9, 1993 in Book 1377 as Reception No. 02328336.
(Affects Plant Site)
46. Terms, provisions and charges as provided in lease agreement as evidenced
by Memorandum of Lease Agreement between Rock Springs Royalty Company, a
Utah corporation and Thermo Cogeneration Partnership, L.P., a Delaware
limited partnership recorded April 9, 1993 in Book 1377 as Reception No.
02328337.
(Affects Plant Site)
47. Terms and provisions as contained in Nondisturbance Agreement between
Thermo Cogeneration Partnership, L.P., a Delaware limited partnership,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ recorded April 9, 1993
in Book 1377 as Reception No. 02328338.
(Affects Greenhouse Site)
Page 21
SCHEDULE 2.02
-------------
GREENHOUSE WASTEWATER DISCHARGE QUANTITIES
------------------------------------------
(Existing Greenhouse and New Greenhouse Combined)
Maximum Wastewater Discharge/1//
-------------------------------
Gal./Month Gal./Day Avg. gpm
---------- -------- --------
January 688,890 22,222 15
February 800,001 25,806 18
March 1,180,953 38,095 26
April 1,333,332 43,011 30
May 1,586,604 51,181 36
June 1,714,287 55,300 38
July 1,714,428 57,143 40
August 1,771,428 57,143 40
September 1,333,332 43,011 30
October 984,126 31,746 22
November 761,904 24,578 17
December 688,890 22,222 15
---------
14,615,175
/1// Maximums stated at 150% of expected discharge.
-
S-1
FILE ????? -10?? THERMO COGENERATION PARTNERSHIP GAS USE AND TRANSPORTATION SUMMARY
OCTOBER 199?
05-JUN-97
PAGE 1 OF 2
-------------------------------------------------------------------------------------------------------------------
NOMINATED RECEIPT ESTIMATED
SUPPLY VOLUME PRICE # OF DAYS VOLUME POINT TOTAL
-------------------------------------------------------------------------------------------------------------------
RANGE FIXED 3,000 $2.097 31 93.000 ▇▇▇▇ $189,441.00
INDEX 10,084 $1.300 31 311.985 ▇▇▇▇ $405,581.00
ADDITIONAL #1 2,000 $1.400 31 62,000 CIG $ 86,835.00
ADDITIONAL #2 3,000 $2.160 2 6,000 CIG(EDE) $ 13,080.00
ADDITIONAL #3 6,000 $2.120 1 6,000 CIG $ 12,720.00
VESSELS FINED 3,619 $2.149 31 116,392 VOG-CIG $254,341.00
FIXED [ADDITIONAL] 1,503 $2.149 0 12,000 VOG-CIG $ 25,779.50
WGR ADDITIONAL #1 5,000 $2.100 1 5,000 CIG(WAT) $ 10,500.00
ADDITIONAL #2 5,000 $2.100 5 25,000 PSCo(EDE) $ 52,508.00
ADDITIONAL #1 2,000 $1.330 31 62,000 CIG(BER) $ 62,450.00
PATINA ADDITIONAL #2 2,000 $1.330 8 16,000 CIG(ROG) $ 21,260.00
ADDITIONAL #2a 2,000 $1.500 2 4,000 CIG(ROG) $ 8,000.00
ADDITIONAL #2b 2,000 $1.700 6 12,000 CIG(ROG) $ 20,400.00
ADDITIONAL #2c 2,000 $1.770 1 2,000 CIG(ROG) $ 3,540.00
ADDITIONAL #2d 2,000 $1.660 4 6,000 CIG(ROG) $ 14,800.00
H.S RESOURCES ADDITIONAL #1 3,000 $1.430 31 93.000 CIG(MEW) $132,990.00
ADDITIONAL #2 3,744 $1.420 5 18,720 PSCo(WAT) $ 28,769.60
COASTAL GAS ADDITIONAL #1 2,722 $1.820 21 57,160 CIG(???) $104,031.20
KN ENERGY ADDITIONAL #1 5,000 $1.488 7 6,000 PSCo(WAT) $ 51,600.00
ADDITIONAL #2 5,000 $1.550 1 5,000 CIG(WAT) $ 4,650.00
ADDITIONAL #3 5,000 $1.550 5 15,000 PSCo(WAT) $ 23,250.00
ADDITIONAL #4 5,000 $1.700 4 20,000 PSCo(WAT) $ 34,000.00
AMOCO ADDITIONAL #1 5,000 $1.350 31 165,000 PSCo(WAT) $289,250.00
ADDITIONAL #2 1,500 $1.810 5 7,500 PSCo(WAT) $ 13,575.00
ADDITIONAL #3 1,500 $1.090 7 10,500 PSCo(WAT) $ 17,745.00
4,000 $2.000 6 24,000 CIG ($ 52,600.00) INVOICED
(24,000)
EMRON (SALES) 4,000 $2.450 2 8,000 CIG ($ 10,600.00) INVOICED
(8,000)
ENERGY STAMP PAYMENT 217,000 $0.0700 0 0 SWAP ($ 15,190.00)
(OCTOBER)
TOTAL 1,15?,250
ESTIMATED 25% FUEL-??? (26,956)
TOTAL 1,129,892 $1,729,684.73
------------------------------------------------------------------------------------------------------------------
-----------------------------------------
OCTOBER 1996
SALES
EXCESS SUPPLY $0
AMOCO $130,514
PROJ RESERVES $ 13,123
------------------------------------------
TOTAL SALES $143,636
==========================================
PURCHASES:
PLANT $1,729,695
AMOCO $ 177,285
PROJ REVENUES $ 17,301
------------------------------------------
TOTAL PURCHASES: $1,924,280
------------------------------------------
MAKEUP (TAKE OR PAY)
==========================================
TRANSPORATION &
STORAGE $ 96,807
==========================================
TOTAL FUEL COST
PURCH & MAKEUP $1,877,452
I & S {SALES}
==========================================
BUST OF FUEL
($ PER MMBTU) $ 1.562
==========================================