Jeld-Wen, Inc._Co-Generation AgreementTHE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: January 17, 2013
RE: Co- Generation Agreement Between The City Of Dubuque, Iowa and
Jeld -Wen, Inc.
JELD -WEN, Inc. ( "JELD- WEN "), an Oregon corporation with its corporate headquarters
located at 3250 Lakeport Blvd., Klamath Falls, Oregon 97601, owns real estate in
Dubuque, Iowa on which it operates a manufacturing facility.
JELD -WEN entered into a consent decree with the United States Environmental
Protection Agency (EPA) for alleged violations of the Clean Air Act as set forth in Civil
Action No. 11 -453 ST (the "Consent Decree ") with respect to this real estate. The EPA
has approved an Emission Reduction Plan under the Consent Decree (the Project)
covered by the attached Agreement. The Parties have agreed to complete this Project
according to the terms of the Agreement.
Pursuant to the Agreement, the City agrees to perform the following obligations:
1) Install microturbines in the Solids Processing Building to use the biogas
from anaerobic digestion to generate electricity and recover waste heat for on-
site use at the Water & Resource Recovery Center. The minimum generation
capacity shall be 400 kW.
2) Install a high - pressure skid in the Digester Control Building to boost the
pressure of the biogas to approximately 90 psig for use in the microturbines.
3) Install the required mechanical and electrical infrastructure to serve the
new compression and microturbine equipment.
4) Provide JELD -WEN with quarterly written updates of the project status.
This quarterly update shall be received by JELD -WEN no later than the 15th day
of the month following the end of each calendar quarterly (i.e., October 15th,
January 15th, etc.). Quarterly written reports shall be given to JELD -WEN's
designated recipient:
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563) 583 -4113 / FAX (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
Bonnie Basden
Director - Environmental Fiber Operations
(541) 883 -3372 x 2521
bonnieb@jeld-wen.com
In consideration for the performance of the City's obligations, JELD -WEN agrees to
reimburse the City for the Project up to a maximum total amount of Three Hundred
Eighty -Six Thousand Eight Hundred Forty -Three Dollars ($386,843).
I recommend the Agreement be submitted to the City Council for consideration and
approval.
BAL:tls
Attachment
cc: Michael C. Van Milligen, City Manager
Teri Goodman, Assistant City Manager
Gus Psihoyos, City Engineer
Steve Brown, Project Manager
Jonathan Brown, Water and Resource Recovery Center Manager
F:IUSERS\fsteckle \Lindahl\JELD -WEN, Incl MayorCouncil _JeldwenAgreement_011713.doc
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AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
JELD -WEN, INC.
This Agreement (the "Agreement ") is. entered into and effective the
22nd day of January , 2013 by and between JELD -WEN, Inc.
( "JELD - WEN "), an Oregon corporation with its corporate headquarters located at
3250 Lakeport Blvd., Klamath Falls, Oregon 97601, and the City of Dubuque,
Iowa ( "City ") located at 50 West 13th Street, Dubuque, Iowa, 52001, each a
"Party" and together the "Parties" to this Agreement.
RECITALS
I. JELD -WEN owns real estate in Dubuque, Iowa.
II. JELD -WEN entered into a consent decree with the United States
Environmental Agency (EPA) for alleged violations of the Clean Air Act as
set forth in Civil Action No. 11 -453 ST (the "Consent Decree ") with respect
to this real estate.
III. The EPA has approved an Emission Reduction Plan under the Consent
Decree, a copy of which Emission Reduction Plan is attached hereto ( "the
Project ") and is covered by this Agreement.
IV. The Parties have agreed to complete the Project according to the terms of
this Agreement.
In consideration of the above recitals and the mutual promises and
agreements contained herein, and intending to be legally bound the Parties
agree as follows:
SECTION 1. CITY OF DUBUQUE OBLIGATIONS: City agrees to perform the
following obligations in connection with the Project:
1.1. Install microturbines in the Solids Processing Building to use the biogas
from anaerobic digestion to generate electricity and recover waste heat for on-
site use at the Water & Resource Recovery Center. The minimum generation
capacity shall be 400 kW.
1.2. Install a high - pressure skid in the Digester Control Building to boost the
pressure of the biogas to approximately 90 psig for use in the microturbines.
010713ba1
1.3. Install the required mechanical and electrical infrastructure
( "Infrastructure ") to serve the new compression and microturbine equipment
(collectively "Equipment ").
1.4. Adhere to the installation schedule outlined in "the Project ".
1.5. Until installation is complete, provide JELD -WEN with quarterly written
updates of City's obligations hereunder. This quarterly update shall be received
by JELD -WEN no later than the 15th day of the month following the end of each
calendar quarterly (i.e., October 15th, January 15th, etc.). Quarterly written
reports shall be given to JELD -WEN's designated recipient:
Bonnie Basden
Director - Environmental Fiber Operations
(541) 883 -3373 x 2521
bonniebaield- wen.com
SECTION 2. JELD -WEN OBLIGATIONS: JELD -WEN shall reimburse City for
materials and labor for City's obligations described in Section 1 up to a
maximum total amount of Three Hundred Eighty -Six Thousand Eight Hundred
Forty -Three Dollars ($386,843) (thet'Total Allotted Amount "). Payment terms are
Net 45 days from the invoice date. JELD -WEN may in good faith withhold
payment of any disputed portion on an invoice until City verifies both the amount
and validity of the invoice.
SECTION 3. CONDITIONS, RELEASE AND INDEMNIFICATION.
3.1 While it is the intention of City to install the Equipment as described in
Section 1, City's obligations hereunder are subject to and conditioned upon the
following:
3.2 JELD -WEN acknowledges that the Project remains its sole obligation with
regard to the Consent Decree and its covenants to U.S. Environmental
Protection Agency, U.S. Department of Justice and the Iowa Department of
Natural Resources
SECTION 4. GENERAL TERMS:
4.1. Independent Contractors. The Parties are independent contractors in all
matters relating to this Agreement and nothing in this Agreement should be
construed to create a partnership, joint venture or agency relationship. Any
provision in this Agreement, or any action by JELD -WEN, which may appear to
give JELD -WEN the right to direct or control City in performing its obligations
means City shall follow the desires of JELD -WEN in the results of the tasks only.
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4.2. Governing Law. This Agreement shall be governed by the laws of the
State of Iowa without regard to its conflicts of laws provisions. Jurisdiction and
venue shall reside solely in the District Court in Dubuque County, Iowa, and each
Party gives its consent and waives its right to contest the jurisdiction thereof.
4.3. Assignment. Neither Party may assign its respective rights and
obligations under this Agreement without the prior written approval of the non -
assigning Party.
4.4. Non - Waiver. Either Party's failure to insist on performance of any of the
terms or conditions herein or to exercise any right or privilege hereunder shall not
be deemed to waive any other right or privilege.
4.5. No Third Party Beneficiaries. This Agreement does not establish third -
party beneficiary rights in any party.
4.6. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each Party hereto and their respective permitted successors and
permitted assigns.
4.7. Survival of Obligations. All provisions of this Agreement which by their
nature contemplate performance after the expiration or earlier termination hereof,
including all provisions that contain obligations of confidentiality, indemnity,
defense, representations, warranties, waiver or release made by any party to this
Agreement, shall survive such expiration or earlier termination of this Agreement.
4.8. Entire Agreement. This Agreement embodies the complete, exclusive and
final agreement between the Parties with respect to subject matter herein,
supersedes all prior agreements and can be modified only by written amendment
signed by both Parties.
4.9 Counterparts. For all purposes, electronic or facsimile signature(s) shall
constitute and shall have the same effect as original signatures. This Agreement
may be executed in one or more counterparts each of which shall be considered
an original and all of which shall constitute one and the same instrument.
This Agreement is executed by authorized representatives of each of the
Parties as of the effective date set forth in the first paragraph above.
CITY OF DUBUQUE, IOWA
By:
JELD -WEN, INC.
By
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Attest:
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By:'�
K: vi S. Firnstahl, Ci Clerk
Print Name: 7wA -(tam Az i.uo
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