Enumeration of Duties. Colorado Greenhouse hereby agrees to --------------------- perform the activities as generally described in this Article, and as contained elsewhere in this Agreement related to the operation and management of the Greenhouse consistent with the Annual Operating Budget and the Program. From and after the Commencement Date, Colorado Greenhouse shall, subject to BGP's discretion: (a) Safely and efficiently operate and maintain the Greenhouse in accordance with (i) the Annual Operating Budget, (ii) the Program and (iii) operations and maintenance manuals and warranties and procedures provided by the contractor for the Greenhouse. (b) Continuously operate the Greenhouse exclusively for the growing, processing, packaging and marketing of tomatoes and other greenhouse vegetables as provided in the Greenhouse Lease, a copy of which is attached hereto as Exhibit A. (c) Assume and comply with the obligations of BGP under the Greenhouse Lease (excluding the obligation to pay rent and establish rent reserves) including, without limitation, utilizing the thermal heat from the Power Plant in such quantities and for such purposes as necessary to maintain the Qualifying Facility status of the Facility, provided, however, that such quantities must be practicable without enlargement or other material alteration of the Greenhouse or if enlargement or material alteration is required then the cost thereof must be borne by BGP or other third parties. Upon request by BGP, Colorado Greenhouse will provide satisfactory evidence of its compliance with such lease terms. (d) Pay, as the same become due, the Greenhouse Operating Expenses. (e) Use its best efforts to market the produce from the Greenhouse. (f) Employ, pay, train and supervise that number of personnel in accordance with the staffing requirements set forth in the Annual Operating Budget, and plan and administer all matters pertaining to such employed personnel in the areas of labor relations, salaries, wages, working conditions, hours of work, termination of employment, employee benefits, safety and related matters. Colorado Greenhouse shall use reasonable care in the hiring of all its employees. All employees shall be employees of Colorado Greenhouse and their wages or other compensation shall be controlled and disbursed by Colorado Greenhouse. (g) Repair or replace, as may be necessary in accordance with a manufacturer's directions, Good Greenhouse Practices and in a good and workmanlike manner any Greenhouse equipment that fails or malfunctions (except as otherwise provided in Section 4.1(d) of this -7-
Appears in 1 contract
Samples: Greenhouse Operation and Management Agreement (Colorado Greenhouse Holdings Inc)
Enumeration of Duties. Colorado Greenhouse hereby agrees to --------------------- perform the activities as generally described in this Article, and as contained elsewhere in this Agreement related to the operation and management of the Greenhouse consistent with the Annual Operating Budget and the Program. From and after the Commencement Date, Colorado Greenhouse shall, subject to BGPWCR's discretion:
(a) Safely and efficiently operate and maintain the Greenhouse in accordance with (i) the Annual Operating Budget, (ii) the Program and (iii) operations and maintenance manuals and warranties and procedures provided by the contractor for the Greenhouse.
(b) Continuously operate the Greenhouse exclusively for the growing, processing, packaging and marketing of tomatoes and other greenhouse vegetables as provided in the Greenhouse Lease, a copy of which is attached hereto as Exhibit A..
(c) Assume and comply with the obligations of BGP WCR under the Greenhouse Lease (excluding the obligation to pay rent and establish rent reservesrent) including, without limitation, utilizing the thermal heat from the Power Plant in such quantities and for such purposes as are from time to time specified by AA#1 as necessary to maintain the Qualifying Facility status of the Facility, provided, however, that such quantities must be practicable without enlargement or other material alteration of the Greenhouse or if enlargement or material alteration is required then the cost thereof must be borne by BGP WCR or other third parties. Upon request by BGPThe parties acknowledge that no scheduled maintenance that impacts the quantity of steam delivered or accepted on, or temporary securing of, the Greenhouse equipment utilizing the thermal heat or the power plant equipment generating the thermal heat shall be made without the prior consent of WCR (with respect to the Greenhouse equipment) or Colorado Greenhouse (with respect to the power plant equipment), as the case may be. In addition, the parties agree that in the event of a Forced Outage, whichever of WCR or Colorado Greenhouse that first has knowledge of such event shall immediately notify the other party. Within 30 days after the end of each calendar quarter during the term of this Agreement, Colorado Greenhouse will shall provide satisfactory evidence of its compliance to WCR an officer's certificate certifying that Colorado Greenhouse has complied with such lease terms.
(d) Pay, as the same become due, the Greenhouse Operating Expenses.
(e) Use its best efforts to market the produce from the Greenhouse.
(f) Employ, pay, train and supervise that number of personnel in accordance with the staffing requirements set forth in the Annual Operating Budget, and plan and administer all matters pertaining to such employed personnel in the areas of labor relations, salaries, wages, working conditions, hours of work, termination of employment, employee benefits, safety and related matters. Colorado Greenhouse shall use reasonable care in the hiring of all its employees. All employees shall be employees of Colorado Greenhouse and their wages or other compensation shall be controlled and disbursed by Colorado Greenhouse.
(g) Repair Except as provided in Section 4.1(d) of this Agreement, repair or replace, at the expense of Colorado Greenhouse, as may be necessary in accordance with a any manufacturer's directions, Good Greenhouse Practices and in a good and workmanlike manner any Greenhouse equipment that fails or malfunctions malfunctions. If any such failure or malfunction is covered by a warranty, Colorado Greenhouse shall submit a timely warranty claim on behalf of WCR.
(except h) Subject to WCR's approval as required for a Subcontractor, engage any independent contractors necessary for making repairs to, or performing maintenance on, or installing improvements to the Greenhouse in the event that Colorado Greenhouse is not available or is otherwise unable to make or perform such repairs, maintenance or installations.
(i) Maintain accurate records of all changes to the Greenhouse and up to date as-built drawings of the Greenhouse reflecting such changes.
(j) Maintain regular communication with WCR, regarding the operation and management of the Greenhouse, including monthly production and sales reports, monthly operating costs, safety reports and other reports reasonably requested by WCR, specifying all operations at the Greenhouse during such period and noting any other material occurrences or operational results, and communicate in each instance, either by telephone or in writing, material changes in the anticipated operation of the Greenhouse or the marketing of produce therefrom, maintenance problems related to the Greenhouse and any notice or knowledge of violation or variance of any Applicable Law or Applicable Permit.
(k) Make, in the name of WCR, contracts for janitorial, water, electricity, telephone and other applicable services, or such of them as Colorado Greenhouse shall deem advisable, and place orders for such equipment, tools, appliances, materials and supplies as are necessary to properly maintain and operate the Greenhouse.
(l) Maintain a system of office records, books, and accounts with respect to the Greenhouse, which records shall be subject to examination by WCR or authorized agents or designees of WCR during all regular business hours. Records, books, and accounts shall be kept for a minimum of five years unless otherwise instructed by WCR. So long as Colorado Greenhouse operates all or any of the Other Greenhouses, Colorado Greenhouse shall allocate costs and revenues for the Greenhouse in accordance with the Allocation Percentage set forth on Exhibit B attached hereto.
(m) Be cognizant of and adhere to the requirements set forth in the Project Documents insofar as they relate to the operation of the Greenhouse and the duties of Colorado Greenhouse under this Agreement.
(n) Prior to the Commencement Date, submit to WCR a proposed Annual Operating Budget for the year in which this Agreement commences and the following year and cooperate with WCR to review and modify the same as necessary to obtain the approval of WCR's Management Committee prior to the Commencement Date; and thereafter submit to WCR a proposed Annual Operating Budget by November 1 of each year for the following two-year period and cooperate with WCR to review and modify the same as necessary to obtain the approval of WCR's Management Committee by December 1 of each year. If for any reason the approval of WCR's Management Committee is not so obtained, the Annual Operating Budget previously approved shall, until the approval of an Annual Operating Budget for the following two-year period, be deemed to be in force and be effective as the Annual Operating Budget for such year.
(o) Review all federal, state and local laws and regulations establishing compliance requirements in connection with the operation and management of the Greenhouse. Advise WCR on the need to secure or renew, as necessary, appropriate permits, licenses and approvals, and assist WCR in securing as appropriate, such permits, licenses and renewals as required.
(p) Keep the Greenhouse free of all materialmen's, mechanics' and other liens for materials or services furnished to the Greenhouse at Colorado Greenhouse's direction.
(q) Pay all real estate taxes attributable to the Greenhouse (as equitably apportioned by WCR provided that in Section 4.1(dno event shall Colorado Greenhouse be obligated for any portion of real estate or property taxes attributable to the heat storage units or the heat generating portions of the Facility) within five days of receipt of an invoice submitted by WCR. In addition, Colorado Greenhouse shall be responsible for all taxes payable to the appropriate taxing authorities for any sales, excise or other tax levied, imposed or assessed in the State of Colorado or by any other taxing authority in connection with the operation of the Greenhouse and the sale of produce therefrom.
(r) By November 1 of each year, submit to WCR a proposed Program and cooperate with WCR to review and modify the same as necessary to obtain the approval of WCR's Management Committee.
(s) Perform other normal business functions and otherwise operate and manage the Greenhouse in accordance with and as limited by the Greenhouse Lease and this -7-Agreement.
Appears in 1 contract
Samples: Greenhouse Operation and Management Agreement (Colorado Greenhouse Holdings Inc)
Enumeration of Duties. Colorado Greenhouse hereby agrees to --------------------- perform the activities as generally described in this Article, and as contained elsewhere in this Agreement related to the operation and management of the Greenhouse consistent with the Annual Operating Budget and the Program. From and after the Commencement Date, Colorado Greenhouse shall, subject to BGPRocky Mountain's discretion:
(a) Safely and efficiently operate and maintain the Greenhouse in accordance with (i) the Annual Operating Budget, (ii) the Program Program, and (iii) operations and maintenance manuals and warranties and procedures provided by the contractor for the Greenhouse.
(b) Continuously operate the Greenhouse exclusively for the growing, processing, packaging and marketing of tomatoes and vegetables or other greenhouse vegetables produce or crops as provided in the Greenhouse Lease, a copy of which is attached hereto as Exhibit A.
(c) Assume and comply Comply with the obligations of BGP Rocky Mountain under the Greenhouse Lease (excluding the obligation to pay rent and establish rent reserves) including, without limitation, utilizing the thermal heat from the Power Plant in such quantities and for such purposes as necessary to maintain the Qualifying Facility status accepting 100% of the Facility, provided, however, that such quantities must be practicable without enlargement or other material alteration of Minimum Annual Heat Requirement (as defined in the Greenhouse or if enlargement or material alteration is required then Lease) and utilizing in the cost thereof must be borne by BGP or other third partiesGreenhouse such Minimum Annual Heat Requirement for useful thermal purposes in accordance with rules and regulations from time to time promulgated and in effect under PURPA. Upon request by BGPRocky Mountain, Colorado Greenhouse will provide satisfactory evidence of its compliance with such lease terms. The foregoing shall not be construed to require Colorado Greenhouse to pay for or construct additional greenhouse space or other facilities.
(d) Pay, as the same become due, the Greenhouse Operating Expenses.
(e) Use its best efforts to market the produce from the Greenhouse.
(f) Employ, pay, train and supervise that number of personnel in accordance with the staffing requirements set forth in the Annual Operating Budget, and plan and administer all matters pertaining to such employed personnel in the areas of labor relations, salaries, wages, working conditions, hours of work, termination of employment, employee benefits, safety and related matters. Colorado Greenhouse shall use reasonable care in the hiring of all its employees. All employees shall be employees of Colorado Greenhouse and their wages or other compensation shall be controlled and disbursed by Colorado Greenhouse.
(g) Repair or replace, as may be necessary in accordance with a manufacturer's directions, Good Greenhouse Practices and in a good and workmanlike manner any Greenhouse equipment that fails or malfunctions (except as otherwise provided in Section 4.1(d) of this -7-Agreement). If any such failure or malfunction is covered by a warranty, Colorado Greenhouse shall submit a timely warranty claim on behalf of Rocky Mountain.
(h) Subject to Rocky Mountain's approval as required for a Subcontractor, engage any independent contractors necessary for making repairs to, or performing maintenance on, or installing improvements to the Greenhouse in the event that Colorado Greenhouse is not available or is otherwise unable to make or perform such repairs, maintenance or installations.
(i) Maintain accurate records of all changes to the Greenhouse and up to date as-built drawings of the Greenhouse reflecting such changes.
(j) Maintain regular communication with Rocky Mountain, regarding the operation of the Greenhouse, including monthly production and sales reports, safety reports and other reports reasonably requested by Rocky Mountain, specifying all operations at the Greenhouse during such period and noting any other material occurrences or operational results, and communicate in each instance, either by telephone or in writing, material changes in the anticipated operation of the Greenhouse or the marketing of produce therefrom, maintenance problems related to the Greenhouse and any notice or knowledge of violation or variance of any Applicable Law or Applicable Permit.
(k) Assist Rocky Mountain in obtaining contracts for janitorial, water, electricity, telephone and other applicable services, or such of them as Colorado Greenhouse or Rocky Mountain shall deem advisable, and place orders for such equipment, tools, appliances, materials and supplies as are necessary to properly maintain and operate the Greenhouse.
(l) Maintain a system of office records, books, and accounts with respect to the Greenhouse as required by the Loan Agreement, which records shall be subject to examination by Rocky Mountain, Thermo and the Lender or authorized agents or designees of each during all regular business hours and which records may not be in lieu of such additional or similar records as may be kept by Rocky Mountain for purposes of complying with its obligations under the Greenhouse Lease. Records, books, and accounts shall be kept for a minimum of five years. So long as Colorado Greenhouse operates all or any of the Other Greenhouses, Colorado Greenhouse shall allocate costs and revenues for the Greenhouse in accordance with the Allocation Percentage set forth on Exhibit C attached hereto.
(m) Be cognizant of and adhere to the requirements set forth in the Project Documents insofar as they relate to the operation of the Greenhouse and the duties of Colorado Greenhouse under this Agreement.
(n) Prior to the Commencement Date, submit to Rocky Mountain a proposed Annual Operating Budget for the year in which this Agreement commences and the following year and cooperate with Rocky Mountain to review and modify the same as necessary to obtain the approval of Rocky Mountain's Management Committee prior to the Commencement Date; and thereafter submit to Rocky Mountain a proposed Annual Operating Budget by November 1 of each year for the following two-year period and cooperate with Rocky Mountain to review and modify the same as necessary to obtain the approval of Rocky Mountain's Management Committee by December 1 of each year. If for any reason the approval of Rocky Mountain's Management Committee is not so obtained, the Annual Operating Budget previously approved shall, until the approval of an Annual Operating Budget for the following two-year period, be deemed to be in force and be effective as the Annual Operating Budget for such year.
(o) Review all federal, state and local laws and regulations establishing compliance requirements in connection with the operation of the Greenhouse. Advise Rocky Mountain on the need to secure or renew, as necessary, appropriate permits, licenses and approvals, and assist Rocky Mountain in securing as appropriate, such permits, licenses and renewals as required.
(p) Keep the Greenhouse free of all materialmen's, mechanics' and other liens for materials or services furnished to the Greenhouse at Colorado Greenhouse's direction.
(q) Pay to Rocky Mountain (unless Rocky Mountain notifies Colorado Greenhouse to make such payment directly to the taxing authority) all real estate taxes attributable to the Greenhouse (as equitably apportioned by Rocky Mountain, provided that in no event shall Colorado Greenhouse be obligated for any portion of real estate or property taxes attributable to the heat storage units or the heat generating portions of the Facility, provided, further, that those two certain 200,000 btu back-up boilers within the Facility shall be deemed part of the Greenhouse for purposes of apportioning property taxes) within five days of receipt of an invoice submitted by Rocky Mountain. In addition, Colorado Greenhouse shall be responsible for all taxes payable to the appropriate taxing authorities for any sales, excise or other tax levied, imposed or assessed in the State of Colorado or by any other taxing authority in connection with the operation of the Greenhouse and the sale of produce therefrom.
(r) By November 1 of each year, submit to Rocky Mountain a proposed Program and cooperate with Rocky Mountain to review and modify the same as necessary to obtain the approval of Rocky Mountain's Management Committee.
(s) Perform other normal business functions and otherwise operate the Greenhouse in accordance with and as limited by this Agreement.
Appears in 1 contract
Samples: Greenhouse Operation and Management Agreement (Colorado Greenhouse Holdings Inc)
Enumeration of Duties. Colorado Greenhouse hereby agrees to --------------------- perform the activities as generally described in this Article, and as contained elsewhere in this Agreement related to the operation and management of the Greenhouse consistent with the Annual Operating Budget and the Program. From and after the Commencement Date, Colorado Greenhouse shall, subject to BGPBGPII's discretion:
(a) Safely and efficiently operate and maintain the Greenhouse in accordance with (i) the Annual Operating Budget, (ii) the Program and (iii) operations and maintenance manuals and warranties and procedures provided by the contractor for the Greenhouse.
(b) Continuously operate the Greenhouse exclusively for the growing, processing, packaging and marketing of tomatoes and other greenhouse vegetables as provided in the Greenhouse Lease, a copy of which is attached hereto as Exhibit A.
(c) Assume and comply with the obligations of BGP BGPII under the Greenhouse Lease (excluding the obligation to pay rent and establish rent reserves) including, without limitation, utilizing the thermal heat from the Power Plant in such quantities and for such purposes as necessary to maintain the Qualifying Facility status of the Facility, provided, however, that such quantities must be practicable without enlargement or other material alteration of the Greenhouse or if enlargement or material alteration is required then the cost thereof must be borne by BGP BGPII or other third parties. Upon request by BGPBGPII, Colorado Greenhouse will provide satisfactory evidence of its compliance with such lease terms.
(d) Pay, as the same become due, the Greenhouse Operating Expenses.
(e) Use its best efforts to market the produce from the Greenhouse.
(f) Employ, pay, train and supervise that number of personnel in accordance with the staffing requirements set forth in the Annual Operating Budget, and plan and administer all matters pertaining to such employed personnel in the areas of labor relations, salaries, wages, working conditions, hours of work, termination of employment, employee benefits, safety and related matters. Colorado Greenhouse shall use reasonable care in the hiring of all its employees. All employees shall be employees of Colorado Greenhouse and their wages or other compensation shall be controlled and disbursed by Colorado Greenhouse.
(g) Repair or replace, as may be necessary in accordance with a manufacturer's directions, Good Greenhouse Practices and in a good and workmanlike manner any Greenhouse equipment that fails or malfunctions (except as otherwise provided in Section 4.1(d) of this -7-Agreement). If any such failure or malfunction is - covered by a warranty, Colorado Greenhouse shall submit a timely warranty claim on behalf of BGPII.
(h) Subject to BGPII's approval as required for a Subcontractor, engage any independent contractors necessary for making repairs to, or performing maintenance on, or installing improvements to the Greenhouse in the event that Colorado Greenhouse is not available or is otherwise unable to make or perform such repairs, maintenance or installations.
(i) Maintain accurate records of all changes to the Greenhouse and up to date as built drawings of the Greenhouse reflecting such changes.
(j) Maintain regular communication with BGPII, regarding the operation and management of the Greenhouse, including monthly production and sales reports, safety reports and other reports reasonably requested by BGPII, specifying all operations at the Greenhouse during such period and noting any other material occurrences or operational results, and communicate in each instance, either by telephone or in writing, material changes in the anticipated operation of the Greenhouse or the marketing of produce therefrom, maintenance problems related to the Greenhouse and any notice or knowledge of violation or variance of any Applicable Law or Applicable Permit.
(k) Make, in the name of BGPII, contracts for janitorial, water, electricity, telephone and other applicable services, or such of them as Colorado Greenhouse shall deem advisable, and place orders for such equipment, tools, appliances, materials and supplies as are necessary to properly maintain and operate the Greenhouse.
(l) Maintain a system of office records, books, and accounts with respect to the Greenhouse as required by the Loan Agreement, which records shall be subject to examination by BGPII, BCP and the Lender or authorized agents or designees of each during all regular business hours. Records, books, and accounts shall be kept for a minimum of five years. So long as Colorado Greenhouse operates all or any of the Other Greenhouses, Colorado Greenhouse shall allocate costs and revenues for the Greenhouse in accordance with the Allocation Percentage set forth on Exhibit B attached hereto.
(m) Be cognizant of and adhere to the requirements set forth in the Project Documents insofar as they relate to the operation of the Greenhouse and the duties of Colorado Greenhouse under this Agreement.
(n) Prior to the Commencement Date, submit to BGPII a proposed Annual Operating Budget for the year in which this Agreement commences and the following year and cooperate with BGPII to review and modify the same as necessary to obtain the approval of BGPII's Management Committee prior to the Commencement Date; and thereafter submit to BGPII a proposed Annual Operating Budget by November 1 of each year for the following two-year period and cooperate with BGPII to review and modify the same as necessary to obtain the approval of BGPII's Management Committee by December 1 of each year. If for any reason the approval of BGPII's Management Committee is not so obtained, the Annual Operating Budget previously approved shall, until the approval of an Annual Operating Budget for the following two-year period, be deemed to be in force and be effective as the Annual Operating Budget for such year.
(o) Review all federal, state and local laws and regulations establishing compliance requirements in connection with the operation and management of the Greenhouse. Advise BGPII on the need to secure or renew, as necessary, appropriate permits, licenses and approvals, and assist BGPII in securing as appropriate, such permits, licenses and renewals as required.
(p) Keep the Greenhouse free of all materialmen's, mechanics' and other liens for materials or services furnished to the Greenhouse at Colorado Greenhouse's direction.
(q) Pay all real estate taxes attributable to the Greenhouse (as equitably apportioned by BGPII provided that in no event shall Colorado Greenhouse be obligated for any portion of real estate or property taxes attributable to the heat storage units or the heat generating portions of the Facility) within five days of receipt of an invoice submitted by BGPII. In addition, Colorado Greenhouse shall be responsible for all taxes payable to the appropriate taxing authorities for any sales, excise or other tax levied, imposed or assessed in the State of Colorado or by any other taxing authority in connection with the operation of the Greenhouse and the sale of produce therefrom.
(r) By November 1 of each year, submit to BGPII a proposed Program and cooperate with BGPII to review and modify the same as necessary to obtain the approval of BGPII's Management Committee.
(s) Perform other normal business functions and otherwise operate and manage the Greenhouse in accordance with and as limited by the Greenhouse Lease and this Agreement.
Appears in 1 contract
Samples: Greenhouse Operation and Management Agreement (Colorado Greenhouse Holdings Inc)
