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Agenda 12/16/2008 Item #10L Agenda Item NO.1 OL December 16, 2008 Page 1 of 69 EXECUTIVE SUMMARY Recommendation to: Develop a Landfill Gas-to-Energy Facility that will beneficially use landfill gas from the Collier County Laudfill to generate electricity and, in turn, generate new revenue for the County's Solid Waste Fund by (a) entering into a Landfill Gas Sales Agreement and Ground Lease authorizing Waste Management Inc. of Florida to design, permit, construct operate and maintain a Landfill Gas-to-Energy Facility at the Collier County Landfill: (b) amending the County's Landfill Operation Agreement with Waste Management, Inc. of Florida: (c) approving the Facility through the Site Development Plan process: (d) directing the I>ivision Administrator from Community Development and Environmental Services to expedite the permit and review process, and (e) authorizing the Chairman of the Board to execute the Agreement and the Amendment to the Landfill Operating Agreement. OBJECTIVE: To develop a Landfill Gas-to-Energy Facility (Facility) that will beneficially use landfill gas (LFG) from the Collier County Landfill (Landfill) to generate electricity and, in turn, generate new revenue for the County's Solid Waste Fund. CONSIDERATIONS: The Collier County Landfill produces a substantial volume of LFG that could be used as an energy source. The LFG is currently burned off through a flare and is not used in any beneficial manner. This project proposes to use that same LFG to serve as fuel to power reciprocating engines that will generate electricity. Collier County staff and Waste Management Inc. of Florida (WMIF) negotiated a Landfill Gas Sales Agreement and Ground Lease Agreement (Agreement) that requires WMIF to design, permit, construct, operate, and maintain a Facility at the Landfill. The Facility would use LFG to generate electricity that would be sold to Florida Power and Light Company. Under the proposed Agreement, WMIF is required to: (a) accept primary responsibility for the LFG project; (b) pay all of the costs associated with the construction of the Facility and be responsible for the financial risks and liabilities related to the Facility; (c) pay the County for the LFG used by the Facility; (d) pay the County a portion of the reveoue WMIF receives from the sale of electricity; and (e) pay the County under certain circumstances for the sale or use of future tax credits and emissions credits (e.g., carbon credits). Howcver, if there is a change in law that directly increases WMIF's cost of complying with the environmental regulations applicable to the Facility, the County will pay one-half of the increased costs, but only if and only to the extent that (a) the increase in capital costs exceeds $100,000 as a result of a change in law event, or (b) the increase in operating costs exceeds $40,000 in a calendar year. The proposed Ab'feement also provides that WMIF must comply with all local, state, and federal laws that are applicable to the Facility, including, but not limited to, all regulations governing the environmental impacts of the Facility. ,......... Under the proposed Agreement, WMIF will: (a) pay the county for LFG at a rate of $1.25 per one million British Thermal Units (MMBTU); and (b) share one-half of the revenue WMIF receives from the sale of electricity above the revenue sharing threshold when the electricity is sold for an average price greater than the revenne-sharing threshold. The initial revenue sharing threshold is expected to be $61.86 per megawatt-hour (MWH), based on an assumed construction cost of approximately $7,000,000. The revenue sharing threshold may increase or decrease depending on the final cost of construction. The revenue-sharing threshold will be increased each year at a rate of 1.5 percent. The Facility is expected to use approximately 374,000 MMBTUs annually, which is expected to provide the County with approximately $468,000 from the sale of LFG for the first year of operation. The unit rate paid by WMIF for LFG ($1.25 per MMBTU) will be adjusted annually by a price adjustment factor that is based on the Agenda Item No.1 OL December 16, 2008 Page 2 of 69 change in rates received by WMIF for electrical power sold. However, the unit rate for LFG will not fall below the initial unit rate of $1.25 per MMBTU. If the proposed Agreement is approved, the Board should amend the Landfill Operation Agreement (LOA) by deleting Section 2.25. The proposed Agreement is intended to be a separate, stand-alone contract that will replace and supersede the provisions in Section 2.25 of the LOA, which currently governs the use and sale ofLFG from the County's Landfill. To ensure best value services, sixteen similar facilities were surveyed requesting specific financial information regarding their LFG Agreements. Based upon the financial information submitted by the sixteen facilities, it was concluded that the County's Agreement contains more favorable financial parameters for the landfill gas purchase price, electrical revenue sharing, and other project revenue sharing criteria with minimal risk to the County. The County also hired the consulting firms of Malcolm Pimie, R.W. Beck, and CH2M Hill, Inc., to review the financial information received to ensure contractual sufficiency and best value for Collier County government. The consnlting firms af,'Tee that Collier County's Af,'Teement is based on an excellent Proforma for a landfill gas project, with relatively low risk for the County. Staff has submitted a zoning verification letter to Zoning and Land Development. The Zoning and Land Development Review Director, Susan Istenes, stated that the proposed Facility and its future operation is a Resource Recovery process as provided for in Resolution No. 90-514. Therefore, the Facility can be permitted and is allowed as an accessory use to the Landfill with an approved amendment to the Site Development Plan. Staff is also requesting that the Board direct staff to expedite the review and management of all county permits in order for this project to be completed by the December 31, 201 0 deadline to qualify for the tax credits. FISCAL IMPACT: It is estimated that the Collier County Solid Waste Fund will receive approximately $468,000 in the first year of the Facility's operation and a total of approximately $12,000,000 over the 20 year tenn of the Agreement. The proceeds from the project will be placed in the air space recovery project No. 59015, Solid Waste Capital Fund (Fund 474) and applied to the acquisition, development and operation of a future landfill. GROWTH MANAGEMENT IMPACT: The development of the Facility is consistent with the County's Growth Management Plan, specifically Solid Waste Sub-Element Objective 2, Policies 2.2, 2.3 and 3.2. Additionally, in December 2006, the Board approved the Intef,'Tated Solid Waste Management Strategy, which provides Board direction for the development of a gas to energy facility at the Collier County Landfill. The project is essential to the county's goal of environmental stewardship, growth management compliance, airspace preservation, operational excellence and best value service. LEGAL CONSIDERATIONS: This item is legally sufficient for Board consideration. - JAB RECOMMENDATION: That the Board of County Commissioners: (a) approve the Agreement with WMIF and thereby authorize WMIF to design, pemlit, construct, operate, and maintain a Landfill Gas-to- Energy Facility at the Collier County Landfill; (b) amend the LOA by replacing Section 2.25 of the LOA with the Agreement; (e) approving the Facility through the Site Development Plan process; (d) direct the Division Administrator from Community Development and Environmental Services to expedite the permit and review process; and (e) authorize the Chainnan of the Board to execute the Af,'Teement and the amendment to the LOA. PREPARED BY: Daniel R. Rodriguez, M.B.A., CFM, Solid Waste Management Department Director. Item Number: Item Summary: Meeting Date: Page 1 of2 Agenda Item No.1 OL December 16, 2008 Page 3 of 69 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 10L Recommendation to: Develop a Landfill Gas-to-Energy Facility that will beneficially use landfill gas from the Collier County Landfill to generate electricity and, in turn, generate new revenue for the Countys Solid Waste Fund by (a) entering Into a Landfill Gas Sales Agreement and Ground Lease authorizing Waste Management Inc. of Florida to design, permIt construct operate and maintain a Landfill Gas-to-Energy Facility at the Collier County Landfill; (b) amending the Countys Landfill Operation Agreement with Waste Management, Inc. of Florida; (c) approving the Facility through the Site Development Plan process; (d) directing the Division Administrator from Community Development and Environmental Services to expedite the permit and review process, and (e) authorizing the Chairman of the Board to execute the Agreement and the Amendment to the Landfill Operating Agreement. (Dan Rodriguez, Solid Waste Director) 12/16/2008 9:00:00 AM Date Prepared By Daniel R. Rodriguez Public Utilities Solid Waste Director Solid Waste 9/19/200810:40:41 AM Approved By William D. Mullin, PE Public Utilities Principal Project Manager Public Utilities Engineering Date 12/8/200811:14AM Approved By Linda Best Administrative Services Date Contracts Agent Purchasing 12/8/20085:17 PM Approved By Dayne Atkinson Public Utilities Project Manager Public Utilities Engineering Date 12/8/2008 5:23 PM Appro\'ed By Daniel R. Rodriguez Public Utilities Solid Waste Director Date Approved By Solid Waste 12/8/2006 5:38 PM Joseph K. Schmitt Community Development & Environmental Services Community Development & Environmental Services Adminstrator Date Community Development & Environmental Services Admin. 12/8/20086:01 PM Approved By Dianna Perryman Administrative Services Contract Specialist Purchasing Date 12/9/2008 8:05 AM Approved By Jennifer A. Belpedio County Attorney Date Assistant County Attorney County Attorney Office 12/9/20088:36 AM ApprO\'ed By fi1e://C:\AgendaTest\Export\118-December%20 16,%202008\ 1 0.%20COUNTY%20MAN... 12/10/2008 Jeff Klatzkow Page 2 of2 Agenda Item No.1 OL December 16, 2008 Page 4 of 69 County Attorney Assistant County Attorney County Attorney Office Date 12/9/20088:44 AM Approved By Kelsey Ward Contract Administration Manager Date Administrative Services Purchasing 12/9/20089:06 AM Approved By Susan Istenes, Alep Community Development & Environmental Services Zoning & Land Development Director Date Zoning & Land Development Review 12/9/20089:19 AM Approved By Steve Carnell Purchasing/General Svcs Director Date Administrative Services Purchasing 12/9/200810:06 AM Appro1-'ed By Sue Zimmerman Property Acquisition Specialist Facilities Management Date Administrative Services 12/9/200810:10 AM Apprond By Phil E. Gramatges, P .E. Public Utilities Sr. Project Manager Public Utilities Engineering Date 12/9/2008 1: 38 PM Approved B}' Thomas Wides Operations Director Date Public Utilities Public Utilities Operations 12/9/20081:59 PM Approved By James W. DeLony Public Utilities Public Utilities Administrator Date Public Utilities Administration 12/9/20082:04 PM Approved By Randy Greenwald County Manager's Office Management/Budget Analyst Office of Management & Budget Date 12/9/20084:41 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 12/9/20085:48 PM file://C:\AgendaTest\Export\ 118-December%20 16,%202008\ I 0.%20COUNTY%20MAN... 12/10/2008 Agenda Item No. 10L December 16, 2008 Page 5 of 69 Final Contract 12-08-08 1 :21 pm LANDFILL GAS SAI,ES AGREEMENT AND GROUND LEASE TABLE OF CONTENTS Section I, Overview Of This Agreement..................................,...........,......"........,.........."..2 1.1 Sale OfLFG And Lease OfPremises............."................"..".."...................2 1.2 WMIF's Obligations And Expenses.........."..........".."............."...................2 1.3 Exhibits To Agreement...................."..................................."..,..............,."..2 1.4 Amendment To LOA .....................................................................................2 Section 2. Term Of This Agreement...............,...........".."....."....."............."..,....................3 2.1 Initial Tetm ....,................. .............~., ................................... ............. ..............3 2.2 Renewal Telms .".....,,,....,,.......,......,,.......,,.....,,....,,...,...,..,,..,,..,..,,.,..............3 2.3 Automatic Modifications Tc The Telm.............".."............."......"...............3 Section 3. Conditions Precedent ................................................. .................".........."...... .....3 3.1 WMIF's RIght To TelminBtc Before Construction .......................................3 3.2 County's Right To Terminate Before Constmction.......................................3 3.3 Termination Of Obligations Before Constl'llction .........................................4 3.4 WMlF Responsibility to QualifY for Alternative Energy Tax Credits...,...4 Section 4. Development Activities ,......,,,.....,,....,,,,,............................,..,,..,,..,,..........."......4 4.1 Pre-Construction Submittals By WMIF."."...............,..".........,."....."...,.......4 4.2 No Construction Without Prior County Approval..................."....................4 4.3 WMIF's Obligation To Obtain Pennits....................................................."..4 4.4 Site Conditions And Site Investigation""."..................................."..............5 4.5 Design And Appearance Of The Facility....................."..."...........................5 4.6 Meetings Concerning The Constmclion Of The Facility ..............................5 4.7 COOl"dination With Other Activities On The Site "........................................6 4.8 Coordination With Opemtion Of Landfill And LFG Collection System ....,,6 4.9 Interconnections With Other Systems ......................................................."..6 4.10 Operations Manual., .."............""......"..................."...................... ,., "...........6 4.11 Annual Maintcnance Schedules For Facility ......................................"....."..7 4.12 Disposal of Condensate......................................."."......., .................... ..........8 4,13 WMIF's Personnel, Equipment, And Supervision........"""........"................8 4.14 WMIF's Site Superintendent ......................."......",.........."................"..".....9 4.15 WMIF's Facility Operator .............."".."........".....,................................,......9 4.16 WMIF's Subcontractors .............................. "........, ."..........., ....... ..................9 4.17 Educational Programs ................................. ,........ "............... ..... ".............., ".9 4.] 8 Storage Of Materials And Equipment.........................."................................9 4.19 County's Right To Inspect Facility................................................................10 4,20 Safety And Security On Site.......................................................................... I 0 4.21 Protection Of Facility And Premises .............................................................11 4.22 Emergency Communications System ............................................................11 4.23 Duty To Cooperate.......... .......,.,.,... ..........,.................. .."...,...................,.......11 Agenda Item No. 10L December 16, 2008 Page 6 of 69 Section 5: Notices Fol' Statt OfConstl11ction And Operation ..............................................11 5.1 Commencement Of Construction ...........................................,.....,..............,.11 5.2 Stal'tup And Shakedown...,............................................................................11 5.3 Commercial Operation Date .........."..".........""...."......"....."......."...............11 Section 6: Duty To Inform County ......"...............................................................................12 Section 7. Title To LPG And Mineral Rights ........................................, ......... .....................12 7.1 Title To LFG .................................................................................................12 7.2 No Minersl Rights Or Production Rights ......................................................12 Section 8. Sale of LPG ......... ,.................................,...............,....,..................,....... ..........,....13 8.1 Sale Of LPG To WMIF................................,..................,...".............,.......,...13 8,2 Flared Gas ................ ................................................,........,.....,........,..".........13 8.3 County's Right To Use 01' Sell LFG .............................................................13 Section 9. Wan-anties For LFG And Facility Operations ......,..............................................13 9,1 No Wammties for LFG....................................................,..............".............13 9.2 Warranty for Facility Opel'ations...................................................................14 Section 10. Measurement Of Landfill Gas ......................................,....................................14 10.1 Measurement Standards For LFG..................................................................14 10.2 Uncontl'OHab1e Conditions In LFO Collection System..................................14 Section 11. Sale Of Electricity ......,.......,.........................................,....................................14 11.1 Sales Of Electricity ....................................,............................,......................14 11.2 Sharing Electricity Revenues......................................................".................14 11.3 County's Right To Use Electricity.................................................................15 Section 12. Metering Equipment Fol' LPG And Electl'icity..................................................15 12.1 Metering Equipment ................................................ ......................................15 12.2 Testing Of Metering Eqnipment ....................................................................15 12.3 Notice OfTcsts ..........."........,.................................................. .....................,15 12.4 Right To Request Additional Tests"..............................................................15 12.5 Right TD Observe And Inspect Metering Equipment ....................................16 ]2,6 COlTections Of Inaccurate Measurements......................................................16 Section 13. New Tax Credits And Emissions Credits ..........................................................17 13.1 New Tax Credit5 ..................."..,....................................................................17 13.2 Emissions Crcdits.. .................................... ..,..... ....".,..........,.........,. ..,..,.........17 Sectlonl4, Payments To County.........................................................................................,17 ]4.1 Payments For LFG ................. ........................................................................17 14.2 Payments 1'01' Electricity, .,....., ...,....,.....,.,,,..... ..,.." ............,.., ".. ...., ."...",......18 14.3 Payments FOT New Tax Credits And Emissions Credits .........."".."..........." 18 14.4 Depreciatiou Payments ....."...........................................................................18 14.5 Deduction8 From LOA Payments................................."...............................19 14.6 Adjustments For Changes In Law...........................................................,......19 14.7 Rent Payments Fol' Lease...............................................................................21 14.8 Disputes Rcgarding Hilling Statements .....""................................................21 14.9 E11"01'S In Billing ,........................... ............................,.,.. ...."......" ,.................22 14.10 Delinquent Payments .................................... ................ .................................22 14.11 Billing Statements ..............". ...."................................, "...... ......"...........".....22 14.12 Other Payments To Counly...."..."....""......"......................,......."..............,,,22 14.13 Payments Based On AltemRtive Energy Tax Credits...........................22 ii Agenda Item NO.1 OL December 16, 2008 Page 7 of 69 Section 15. Records And Reports .......,..........................................................."....................23 15.1 Records And Recordkeeping ...........,...............,................................,......,.....23 15.2 County's Right To Inspect And A\ldit Records......."....................................23 15.3 Retention of Records.... ............"........ ............................................................23 15,4 Records Concerning Electricity Sales, New Tax Credits And Emissions Credits .....................................................................................23 15.5 Monthly RepOlts ..................,... ........,..........,...., ....................,............ ............23 15.6 Annual Rcports ,...................................................."......,...............,................24 Section 16. Compliance With Laws, Permits, And Prohibitions..........................................24 16.1 Compliance With Laws............,.....................................................................24 16.2 Compliance With Permits ..........."...........,. ........................ ................ ............24 16.3 Compliance With Prohibitions..................,........................,...........................24 Section 17. Regulatory Citations And Public Comp1aints....................................................24 17.1 Rcsponding To Citations................................................................................24 17.2 Citations Issued By The County ....................................................................25 17.3 Public Complaints ...................... ................................. ........ ............... ............25 Section 18. Authorized Uses or the Premises .....................................................................25 18.1 Prior Approval Required To Use The Site.....................................................25 18.2 Authorizcd UseB OfPremiseB ...........................................................,............25 18.3 Easements Across The Site...............................................................,............25 Section 19. Title To Improvcments and Equipment on the Premises..................................26 Section 20. Right Of First Offcr To Purchasc Facility Upon Closure .................................26 Section 21. Right To Purchase Facility After Ten Operating Years....................................26 Section 22. Repair Of Premises ............, ......... .....".. .....,. ........, ,.......................,....................27 Section 23. Expansion Of The Facility .................................................................................27 Section 24. Payment or Costs And Expenses ......................................................................27 Section 25. Discharge or Liens ...................... ......... ................. .......... ............................ ......27 Section 26. Subordination or MOltgage ......... .............., ........,..............................................28 Section 27. Condemnation.......,...............,..................., ,........ ,...........................,..................28 Scction 28. Indemnification And Limitation Of Liability ....................................................28 28.1 Indemnification By WMIF ............................................................................28 28.2 Duty To Defend ...................."..............,........,...............................................28 28.3 Survival Of Obligation. ,.........,..,...........,......,.,..........,.................... ,...............29 28,4 Limitation Of Liability.................... ...........................,....... ..........., ......., ........29 28.5 Insurance Proceeds..................................,..........,...,.., ............. ......,........ ........29 28.6 Relationship With Other Agreements............................................................29 28.7 No Release Of Insurers ..................................................................................30 28.8 Indemnification By County ........,. ..............., .................. ................................30 Section 29. Insurance ....... ...............................................................,............."............ ....... ...30 29.1 Required Insurance ............................, ..,......................, .................................30 29.1.1 Insurance During Operalion...............................................................30 29.1.2 Insurance During Design And Conslruetion......................................31 29.2 Terms And Conditions.....,....... .......................... ............,... ........ ......., ............32 29.2.1 Deductibles/Self- Insured..... ....................................... ........................3 3 29.2,2 Other Insurance Provisions........,....,..................................................33 iii Agenda Item No.1 OL December 16, 2008 Page 8 of 69 29,3 Acceptability Of Insurers .............,. ....... ......., ......,......." ......,.......... ................34 29.4 Evidence Of Insurance......... ........................................ '"'''''' ........ .......... .......34 29.5 Waiver Of Subrogation Required ........"......"..................""....."..,............"..34 29.6 Failure Constitutes Material Breach ............"..........................................."...34 Section 30. Force Majeure ........................... .......... .............. ................ ........ ........ ....,............35 30.1 Effect Of Event OfForce Majeure.................................................................35 30.2 Notice Of Events Of Force Majeure..............................................................35 30.3 Obligations Following OccUlTence Of Event Of Force Majeure.. "...............35 30.4 TcrminBtion For Extended Force Majeure.....................................................36 Section 31. Defaults, Termination And Remedies................................................................36 31.1 Events Of Default ..........................................................................................36 31.2 Tennination Procedure................... .......... .............,............ ............................37 31.3 Cumulative Remedies .,........., '''''''' ,........, ......,....", ...................",.........".......3 7 31.4 Default by WMIF.................................................. .........................................38 Section 32. Site Restoration........ .............................. .......... ..................,................. ..............3 8 32.1 Duty To Restore The Site ..............................................................................38 32.2 County's Right To Restore Site.....................................................................38 Section 33. Survival Of Obligations .....................................................................................38 Section 34. Payment and PerfOlmance Bonds .............................".......................................39 34.1 The Payment Bond...............", .......... ..................... .........,...............,..............39 34.2 The Performance Bond ....................................................."...........................39 Section 35. Dispute Resolution............. ................... ...................... ........................... ....... .....4 0 35.1 Dispute Resolution Process..........,.. ........, .............,...,...................." ..............40 35.2 Non-Binding Mediation ........................... ......................................................40 35.3 Alternate Procedures ............,.......... ......... .............. ...,..."............"...............,.40 35.4 Litigation.........................................,... ...,.......,.......................... ......... .....,..... .41 Section 36. Payments Withheld From WMIF........,...........................""..".............."...........41 36.1 Grounds For Withholding Payments .............................................................41 36.2 Procedure For Withholding Payments ...........................................................41 Section 37. Operations During Dispute........"..."....................................""....."..................42 Section 38. Liquidated Damages ..........................................................................................42 38.1 Liquidated Damages ..................... '" .............................. ................................42 38.2 Procedure For Assessing Liquidated Damages...................".........................42 38.3 Grounds For Assessing Liquidated Damages.....................".........................43 38.4 Withholding Funds In Lieu OfLiquidated Damages .""."."..."..."""..."."..,44 Section 39. Venue for Litigation..... ............................ .............. ................. .."......................44 SectiDn 40. Governing Law ..................................""..........................".................".....".....45 Section 41. Independent Contractor......... .............."..,. ............. ..."............ ...............".........45 Section 42. ABsignment And Transfer Of Agrcemcnt.............".."......."".........""..."....."..45 42.1 Assignment Of Agreemcnt .."..........................."......,..............................""..45 42.2 Transfer Of Agrccment.............................................. ..........."... ...."..............46 42.3 Successors And Assigns .".........,..."."....,......".,.......,..".............,..................46 Section 43. Notices ...... ......................... .............. ..., .,...." ..""..".." .........."..... .."................46 43.1 Method Of Providing Notice ....................................................,,,.....,,...........46 43.2 Address For Notice ........,....."............".."..."..."...........".,,,....,,........,,........,,.46 43.3 Receipt And Effectiveness OfNotice............................................................47 iv Agenda Item NO.1 OL December 16, 2008 Page 9 of 69 Section 44. Taxes ............................ ....................... ......,........................... ............." ........48 44.1 General........ .......... ....,...........,........,. ................,................... .......... ...... ..........48 44.2 Taxes On The Purchase OfLFG.........................."........................................48 Section 45. Representations and Wan.anties........................................................................48 45.1 Warranties By WMIF ...........,..........................".....,...................,..................48 45.2 Warranties By County..., ,.............." .............................. .......... .......................49 Section 46. Miscellaneous .....".........,.., "..........,...,... ...,.......,......, ........, "....... ......,......".......,50 46.1 Modification Of Agreement......................................,............................,..;...,50 46.2 Waiver Of Rights ............................. ................. ...................... .......................50 46.3 Reserved... ......... ... .........." ....... ...............,............................. ....................... ...50 46.4 DeciBion-Making By Parties ............., .......................... .........., .......................50 46.5 No Third Palty Beneficiary............".............,..............".."...................,........51 46.6 Severability And Pal,tial Invalidity of Agreement.........................................51 46.7 Costs ...,........................ ......................... ............... .............. ................ ......... .51 46.8 Specific Performance ...., ................. "............"..........,.......,...., ..."........", .......51 46.9 Time Is OfTbe Essence.,........,......................................................................5I 46.10 Exhibits Incorporated Into Agreement...........................................................51 46.1 I Counterpalts.,........ .,. .....,...............,............................ .......... ... ....... ........ ....... .51 46.12 Entite Agreement ..........., ................. ........ ...................... "....... .......................52 46.13 Headings ........................,......., ......... ................."................"............."..,.....,.52 46.14 Interpretation Of Agreement..............,....,......,............... ................................52 46.15 Sovereign Immunity..... ,................. "..,... ,................,......................,......,...... ,.52 46.16 Remedies Aie Not Exclusive ........................................................................,52 Section 47. Equal OppOltlmity Employment........................................................................52 47.1 Equal Opportunity Emp1oyment...........................,........................................52 47.2 Immigration Laws ......... ........ ................. ...................... ................. ,................53 Section 48. CDmpliance With Labor Laws ...........................................................................53 Section 49. Fair Dealing .............................,..,...............".................,...................................53 Exhibit "An: Definitions.........,......................... ,...,..., ,....... ....,......... ,......... ,....,..,...... ,..........A Exhibit "B": Site Map and Legal Description of the Premises...........................................B Exhibit "C": Draft Performance Bond ............,..............................,........................,...........C Exhibit "0": General Design Concepts and Major Components of Facility ......................0 Exhibit "E": Schedules for Payments to the County ....................................."...................E y ,.~--------"._-,._.._'_.._-~ Agenda Item NO.1 OL December 16, 2008 Page 10 of 69 LANDFILL GAS SALES AGREEMENT AND GROUND LEASE This Landfill Gas Sales Agreement and Ground Lease ("Agreement") is made and entered into this _ day of , 2008, by and between the Board of County Commissioners ("Board") of Collier County, Florida, and Waste Management Inc. of Florida ("WMIF"). Reeitals: A, Collier County ("County") owns a Class I Landfill ("Landfill"), other solid waste manBgement facilities, and relBted appmtenances on a 300+/- acre site ("Site") located at 3750 White Lake Boulevard, in Collier Cmmty, Florida, B. WMIF operates the County's Landfill pursuant to a Landfill Operation Agreement ("LOA") dated February 7, 1995, as amended. C. Methane and other gases ("LFG") generated in the Landfill currently are collected and burned in a flare, without recovering any energy or providing any financial benefits for the COllnty. D. WM1F now wishes to buy and the County wishes to sell the LFG generated in the County's Landfill. E. WM1F intends to lIse the LFG to generate Electricity, which WMlF will sell to one or more third patties. F. WMIF plans to gcnerate the Electricity in a facility ("Facility") that WMlF will design, pelmit, construct, maintain, and operate on the County's Site. Q, Section 2.25 of the LOA provides that the County may implement a system to utilize the LFG if the County develops the LFG system jointly with WMlF. H. Section 2.25 of the LOA provides that the County shall own and pay for the LFG systcm, but the County has concluded that it does not wish to incur the costs and risks associated with the design, permitting, construction, ownership, operation, and maintenance of the LFG system and Facility. I. Accordingly, the County and WMIF have executed an amendment to the LOA, which deletes Scction 2,25 of the LOA. J. This Agreement shall govern the COlmty's sale of LFG to WMlF. K. This Agrecment also contains the telms and conditions that will govern the County's lease to WMIF of certain land ("the Premises") at the Site, which WMIF will use for the construction and operation of the Facility. 1 Agenda Item No. 10L December 16, 2008 Page 11 of69 1. WMIF modeled the gas production of the Landfill and finds there is sufficient gaB to operate the Facility for the term ofthis Agreement. NOW, THEREFORE, based on the recitals set f0l1h above, and in consideration of the mutual covenBnts and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the County and WMIF, the County and WMIF agree that they shall comply with and be bound by all of the following tel1us and conditions of this Agreement: Section 1: Ovel'Vlew Of This Aarecment 1.1 Sale Of LFG And Lease Of Premises. The County hereby agrees to sell LFG to WMIF, and WM1F hereby agrees to purcha5e LFG from the County, subject to the telms and conditions contained in this Agreement. WMIF shall use the LFG to generate Electricity in the Facility that WMIF shall construct and operste on the Premises. WM1F Bnd the County shall share the revenues derived from the sale or use of Electricity, New Tax Credits, and Emission Credits, subject to the provisions in this Agreement. To implement this Agreement, the County agrees to lease the Premises to WMIF, and WMIF agrees to lease the Premises from the Cmmty, subject to the terms and conditions contained herein. 1.2 WMIF's Obligations And Expenses. Except when this Agreement expressly provides otherwise, WMIF shall be solely responsible, at its sole expense, for taking all actions necessary to: (a) design, pennit, construct, maintain, and operate the Facility; (b) connect the Facility to the Grid and provide the other Interconnections needed to operate the Facility; (c) sell the Facility's Electricity; and (d) otherwisc ensure the successful operation of the Facility in accordance with the Parties' goals and requircments, as set forth in this Agreement. WMIF shall conduct aU of its activities under this Agreement in compliance with the requirements contained in this Agl'eement, the Pennits, and Applicable LBw. WMIP shBlI be solely responsible, at its sole expense, for providing all ofthe labor, personnel, services, supervision, materials, insmance, and equipment necessary to accomplish all of WM1F's tasks and satisfy all of WM1F's obligations under this Agreement. 1.3 ExhibitB To Agreement. The capitalized words and telms used ill this Agreement are defined in Exhibit "A", which is attached hereto. A legal description and sketch of the Premises are set forth in Exhibit "B". The fOlm of WM1F's PerfOlmance Bond is contained in Exhibit "C". The general design concepts, major components of Facility, and minimum specifications for the Facility are depicted and described in Exhibit "D". Exhibit HE" contains the fOlnl\llas lor calculating Gas Sales Payments, Electricity Sales PByments, and other payments to the County. 1.4 Amendment Tg LOA. The County and WMIF havc exccutcd an amclldmcnt to the LOA that deletes Section 2.25 of the LOA. This Agreement is a separate, stand-alonc contract that supercedes Section 2.25 of the LOA. In the event of any conflict or inconsistency between this Agreement and the LOA, the telms ofthis Agreement shall govern the sale of LFG, the generation and sale of Electricity, the lease of the Premises, and the other issues addressed 2 Agenda Item No.1 OL December 16, 2008 Page 12 of 69 herein. This Agreement does not modify or change the responsibilities of/he Parties with regard to the operation of the Landfill under the LOA. Section 2: Term Of This Al!l'eement 2.1 Initial Term. The Initial Term of this Agreement shall commence on the Effective Date and shall tcrminatc at midnight at the end of the twentieth (20th) Operating Year following the Commercial Operation Date, unless the Agreement is terminated sooner. 2.2 Renewal Terms. With the mutual consent of the County and WM1F, the Pal11es shall have the right to renew and extend tillS Agreement for one or more Renewal Telms, Each Renewal Telm shall be a period of one (1) year, unless the County and WMIF agree otherwise. The total duration of all Renewal Tenns shall not exceed five (5) years. 2.3 Automatic Modifications To The Telm. 2.3.1 The Term of this Agreement shall automatically be extended for a Renewal Tcrm of one (1) year unless the County notifies WM1F, or WMIF notifies the County, in writing of its intent to telminate the Agreement at the expiration of the then C1ll1'ent Telm. The notice shall he provided to the othet. Party at least ninety (90) days prior to the expiration of the Tem!. 2.3.2 If the Term of this Agreement is extended, the extension of this Agreement shall be on the same terms and condilions provided herein, except to the extent that the terms and conditions are or have been amended or modified in accordance with this Agreement. 2.3.3 The Term of this Agreement shall automatically telminate concmrently with the tenuination or expiration of the LOA, without any fllliher action being required by either Parly. Section 3: Conditions Precedent 3.1 WMIF'8 Riaht To Tcrminatc Before CO!]struction. WMIF's obligation to construct the Facility purSuBnt to this Agreement shall be conditioned upon: (a) WMIF obtaining all of the Pelmils required under Applicable Law to construct, operate, and maintain the Facility in the manner contemplated herein; (b) all Petmits being validly granted on telms and conditions 8atisfactory to WMIF; (c) all Permits being final and no longer subject to appeal; and (d) the availability of an Intercormection to the Grid at a cost and upon conditions that are satisfactory to WM1F. If WMIF diligently and continuously utilizes its best eff0l1s to obtain the Permits but is nonetheleBs unab1c to satisfy conditions (a) - Cd) within two years after the issuance of a Notice to Pmcced, WMIF may telminate this Agreement by providing notice to the County prior to the Conunencemcnt of Construction. 3.2 County's Riuht To Terminate. The County's obligation to sell LFG to WMIF is conditioned upon \VM1F's ability to permit, construct and operate the Facility in a timely manner. If WMIF fail5 to achievc Commercial Operation within two (2) years after the issuance of the Notice to Pmceed, the County may terminate this Agreement by providing notice to 3 Agenda Item No. 10L December 16, 2008 Page 13 of 69 WMIF, unless the Solid Waste Director 01' hiB designee, ill writing, subsequently notifies WMI!' of a modified (Jatcr) Commercial Operation date. Upon request by WMIF, the County will grant an extension of up to one hundred and eighty (180) days. Any additional time extensions would require Board approval. 3.3 Termination OfOblillations Before Construction. If this Agreement is terminated pursuant to Section 3.1 or 3.2, the County and WMlF shall have no fmiher obligations to each other under this Agreement, except for those obligations that survive termination. 3.4 WMIF Responsibilitv to Qualifv for Alternative Enerl!v Tax Credits. It shall be WMlF's sole responsibility to achieve Commercial Operation that will result in WMIF receiving the Alternative Ene.rgy Tax Credits, as defined in Exhibit A. Section 4: Developmcnt Activitics 4.1 Pre-Construction Submittals Bv WMIF. At least ten (10) days before the Commencement of Construction, WM1F shall provide the Project Manager with: (a) celiificates of insurance demonstrating that the required insurance has been procured in compliance with this Agreement; (b) a copy of each Permit Dbtained by WM1F for the proposed construction activities; (c) the name, telephone number, and emergency contact infomlation for WMIF's Site Superintendent; (d) the contact information required pursuant to Section 4.13.6, below; (e) the Payment Bond required pursuant to Section 34 of this Agreement; and (f) any other documents required to be submitted before the COll1ll1encement of Constmction pursuant to this Agreement. These documents are subject to review and approval by the County, which approval shall not be umeasonab1y witWle1d Dr delayed. 4.2 No Construction Without Prior County Anproval. WMIF shall not conduct any pre-construction or constmction work on the Premises until the Project Manager issnes a notice to proceed with construction or gives written approval for a specific task. The notice to proceed shall be issued by the Project Manager promptly after WMIF submits and the County approves WMIF's ceJiificates of insurance, Payment Bond, llnd other docUll1cnts required pursuant to Section 4.1, above. 4.3 WM1F's Obligation To Obtain Permits. 4.3.1 WM1F shall be solely responsible for obtaining, maintaining, renewing, and modifying (if necessary) all necessary Permits and approvals for the design, construction, operation, and maintenance of the Facility. WMIF shall diligently, continuously, and timely pursue the issuance of such Pcnnits and approvals for the Facility, 4.3.2 Within ten (10) days aftcr the Effective Date, WM1F shall provide the Project Manager with WMIF's proposed schedule for the submittal ofWM1F's applications for all of the Permits that mnst be obtained before the Commencement of Construction, On or before the tenth (10th) day of each month thereafter, WM1F shall provide written updates to the Project Manager concerning the status of each application. At a minimum, the updates shall identify: (a) any known or anticipated delay in the issuance of any Pennit; (b) the cause and anticipated length of such delay; and (c) the steps WMIF is taking to minimize the delay and otherwise ensure the timely issnance of the Permits. 4 Agenda Item NO.1 OL December 16, 2008 Page 14 of 69 4.3.3 WMlF shall notify the Project Manager at least two (2) Business Days before WM1F meets with any Governmental Authority concerning the Facility or LPG Collection System. WMIF shall allow a County representative to accompany WMIF to such meeting as a representative afthe County. 4.3.4 WMIF shall not commence constmction of the Facility or perform related site work without a Permit. 4.4 Site Conditions And Site Investigation, The Premises shall be delivered "as is" to WMIF, The County makes no warranties about (a) the surface, subsurface, geotechnical, hydrogeological, or other conditions on the Premises, or (b) the suitability of the Site for its intended use. WM1F shall have the sole responsibility to satisfy itself conceming the nature and location ofthe work that WMIF intends to conduct on the Premises, including but not limited to: the nuhu'e and quantity of the surface materials to be encountered; subsurface conditions; the availability of water, c1ectric, and other utilities; the location and condition of existing roBdwBYS, drainage facilities and underground utilities; and other factors affecting WMIF's construction and operation of the Facility. WMIF's failure to acquaint itself with any applicable conditions on thc Sitc shall not rclicve WM1F from any of its responsibilities under this Agreement, nor shall it be considered the basis for any claim for additional compensation. 4.5 Design And Appearance Of The Facility. 4,5.1 WMIF shall be solely responsible for the design of the Facility. 4.5.2 The external appearance, general design concepts, and major components of the Facility shall be consistent with the concepts and specifications presented in Exhibit "D'!, which is attached hereto. 4.5.3 The Project Manager shall have the right, but not the obligation, to review WMIF's plans for the design of the Facility to ensure that WMIF's plans are consistent with the design concepts and specifications presented in Exhibit "D". WMlF shall present its plans to the Project Manager and Security Chief whcn the plans are at the sixty percent (60%) and ninety percent (90%) stages of completion, 4.5.4 Within thirty (30) days after the completion of construction of the Facility, WMIF shall provide the Project Manager with a copy of a FDEP "Certificate of Completion of Construction" or othcr documents demonstrating that the Facility was built in compliance with (hc Permits and consistent with the provisions of Exhlbit "D". 4.6 Meetin~s Conceming The Construction Of The Facilitv. 4.6.1 No later than five (5) Business Days before the Commencement of Construction, WMIF shall conduct a mccting with the FDEP, thc County, Waste ManBgcment Rcnewable Energy ("WMRE"), and other appropriate Persons to discuss the construction of the proposed Facility. At the meeting, WMlF shall present its plans for conducting the work, coordinating with other Persons using the Site, maintaining compliance with the Pelmits, and addressing related issues, 5 Agenda Item No. 10L December 16, 2008 Page 15 of 69 4.6.2 After the Commencement of Constlllction, WMIF shall hold on-Site meetingB with the Connty to discuss the status of the project. The meetings shall be held at least Dnce each month, unless the County and WMIF agree to follow a different schedule. These meetings shall continue to be held until the consltuction project and all "punch list" items are completed, Dr the Commercial Operation Date, whichever is later. 4.7 Coordination With Other Activities On The Site. WMIF Bhall coordinate the construction, maintenance, and opemtion of the Facility with the other activities and operations at the Site. WM1F shall conduct its Dperations undcr this Agrccment in a manner that avoids delays or other inconveniences to the Call1lt)', the public, or any other Person using the Landfill or working 011 the Site. 4.8 Coordination With Ooeralion Of Landfill And LFG Collection Svstem. 4.8.1 WMJF shall at all times operate and maintain the Landfill and LFG CDllection Systelll in compliance with the requirements in the LOA. WMIF's primary responsibility is to operate the Landfill and LFG Collection System in a manner that achieves the County's waste dispDsa1, envimnmental, safety, and public health objectives in compliance with all Applicable Laws. The sale of LFG to WMJF and the generation of Electricity with the Facility are secondary objectives. 4.8.2 WM1F shall conduct its activities under tbis Agreement in a manner that is consistent with WMJF's responsibilities under the LOA. Among other tbings, WMIF shall not attempt to maximize the production of LFG, or maximize the use of the Facility, or undertake any other activity on the Site, if any such activity will cause odors, noise, or other conditions that violate Applicable Law. 4.9 Interconnections With Othet. Svstems. WMIF shall be solely responsible for the design, permitting, conshuction, installation, operatiDn, and maintenance of any Intercollnections between the Facility and other sYBtems or equipment located on 01' off of the Site, including Interconnectiolls required for: (a) the delivery of LFG from the LBndfill to the Facility; (b) the transmission of Electricity from the Facility to the Grid; and (c) the provision of electrical, water, or other utility selvices to the Facility. Among Dthcr things, WMIF shall be solely responsible for: (a) cODrdinating with the owner(s) and operator(s) of each system and piece of equipment that will be connected to the Facility; (h) complying with any appiicab1e reliability standards, high voltage specifications, and other requirements conccming the Facility's supply of Electricity to the Grid; (c) complying with any Applicable Law 01' contmctual obligations with a third parly concerning the Interconnections; and (d) establishing and maintaining any easements necessary for the Interconnections. WMIF shall coordinate and communicate with the County conceming any Interconnections. 4.10 Operations Manual. 4.10.1 WM1F shall prepare and maintain a manual ("Operations Manual") describing WMIF's operation and maintenance procedures for the LFG Collection System and Facility. The Operations Manual shall describe the procedures that WMIF shall follow dudng normal operations, upset conditions, and forcseeab1e emergency conditions (e.g., hurricanes; 6 Agenda Item No. 10L December 16, 2008 Page 16 of 69 explosions). The Operations Manual also shall describe the regular maintenance tasks, schedules, and procedures for all of the m'iior components of the Facility, including but not limited to Metering Equipment, engines, transformers, transmission lines, Intercomlections, piping, alamls, and fIre detection systems. WMIF shall at all times adhere to the tasks, schedules, and procedures set fMh in the Operations Manual, 4.10.2 At leBst fifteen (15) days before the Commercial Operation Date, WMIF shall provide a copy of the Operations Manual to the Projeet Manager. Thereafter, WMIF shall update the manual promptly to account fur changes in the equipment, eomponents, systems, and operating practices and procedures employed by WMIF. Updated pages of the Operations Manual shall be provided to the Project Manager within ten (l0) days after WMIF changes its operating equipment or procedures. At least fIfteen (15) days before tlle begiIUling of each Operating Year, WM1F shall provide the Project MBnager with a copy of the most recent version ofthe Operations Manual, 4,1 0.3 WMIF's Operations Manual shall include a health and safety plan that complies with Applicable Laws governing workplace safety. The health and safety plan shall describe the procedures to be followed in the event of an emergency or imminent threat to WMIF's perBoIUle1, any other Person on the Premises, or the environment. The health and safety plan shall identify the emergency contact information for WMIF, the County, and emergency services. This contaet information shall be clearly posted at the Facility and in WMIF's offices on the Site. 4.1 0.4 WM1P's Operations Manual shall contain WMIF's staffing plan, This plan shall identifY the full-time and part-time employees that will work at the Faeility. The plan shall identifY the responsibilities and normal work hours for each employee. The plan shall contain the telephone number, mobile phone number, and electronic mail address for each employee. 4.10.5 VI'MIF's Operations Manual shall include WM1P's security plan. At a minimum, the security plan shall deseribe the steps WM1F will take to e011tro1 access and otherwise ensure that an unauthorized Person will not be able to enter the Site or the Facility. WM1F's seeurity plan shall be consistent with the minimum security requirements that are adopted by the Board on or before the Effcctive Date and are applicable to the County's facilities. 4.11 Annual Maintenance Schedules For Facility. 4. I 1.1 At least fifteen (15) days before the Commercial Operation Date and fifteen (15) days before the beginning of each Operating Year, WMIF shall provide the Projeet Manager with a maintenance sehedule, which shall describe in reasonable detail the proposed schedule for the Facility's maintenance outages during the upcoming Operating Year, 4.11.2 In the event that WMIF reasonably anticipates that an event may result in an unscheduled outage of the Facility, WMIF promptly shBlI provide oral notice to the Project Manager. AB soon as praeticBble but not later than the fIrst Bnsiness Day inUllediate1y following an unseheduled outage, WMIF shall provide written notice to the Project Manager describing: 7 Agenda Item NO.1 OL December 16, 2008 Page 17 of 69 (a) the nature of the events causing the unscheduled outage; (b) the expected effect such unscheduled outage will have on WMIF's ability to operate the Facility; and (c) the date when WMIF anticipates the Facility will resume normal operations. 4.12 DisnosalOfCondensate. 4.12.1 WMIF shall dispose of Condensate in accordance with the LOA and Applicable Law. WMIF shall apply for Bny modifications to the Petmits needed to authorize the handling and disposal of the Condensate fl"Om the Facility. 4.12.2. WMIF shall provide the Project Manager with copies of any test results or other data collected by WMlF concerning the quality or quantity of the Condensate from the Facility or LFG Collection System. The test results and other data shall be provided to the Project Manager within five (5) Business Days after they are received by WMIF. 4.12.3 WMlF shall comply with the County's Industrial Pretreatment Ordinance or any successor ordinance that governs discharge of waste into the County's wastewater treatment system. 4.13 WMIF's Personnel. EouiPlnent. And Sunervision. 4.13.1 WMIF shall provide all of the labor, equipment, materials, personnel, and supervision necessary to perrOlm WMIF's duties \mder this Agreement in a safe, timely, and efficient manner. 4.13.2 All of WM1F's employees and subcontractors shall be competent, sober, and appropriately trained for the tasks assigned to them. 4.13.3 All of the equipment used by WM1F on the Site shall be appropriately designed, maintained, and operated. 4.13.4 WMIF shall make arrangements for or have timely access to additional equipment and personnel, as necessary, to ensure that the constmction and operation of the Facility is not intelTupted or halted, except when authorized in accordancc with this Agreement. 4.13.5 WMIF shall plan, organize, supervise, schedule, monitor, direct, and eontl'Ol its work under this Agreement, competently and efficiently, dcvoting such attention thereto and applying such skills and expertise as may be necessary tD perfolm the work in accordance with this Agreement. 4.13.6 At least ten (10) days before the Conunencement ofCol1struction, WM1F shall p!"Ovide the Project Manager with a list of all personnel who will perform WMIF's work under this Agreement. WMIF shall provide the Project Manager with an updated list whenever thcrc are any changeB in the persOlmel. The list shall include the name, address, telephone number, and e-mail address of cach cmploycc of WMIF, WMRE, any subcontractor(s), and others that will be working on the Site for WMIF. 8 Agenda Item No. 10L December 16. 2008 Page 18 of69 4.14 WMIF's Site Suoerintendent. WMIF shall have a Site Superintendent or the Superintendent's designee on the Site at all times when an employee ofWMIF, a subcontractor, or other Person is eonstlUcting the Facility or anyon-Site Interconnection to the Facility. The Site Supel'intendent shall be WMIF's representative onlhe Site and shall have authority to act on behalf of WMIF. All communications given to the Site Superintendent shall be binding as if given to WMIF. 4.15 WM1F's Facility Ooerulor. WMIF shall employ at least one (I) competent, fully trained Person ("Operator") to operate the Facility. BegilllJing on the Commercial Operation Date and throughout the remainder of the Telm, an OperBtor or the Operator's designee shall be present on the Site at least forty (40) hours per week, fifty-two (52) weeks per year. WMlf shall arrange to have anothel' Operator on the Site within twenty-foUl' (24) hours, if necessary, to address upset conditions 01' other problems that arisc when the designated Operator is on vacation or otherwise unavailablc. 4.16 WMIF's Subcontractors. 4.16.1 WMIF may utilize subcontractors, including WMRE, to perfOlm the work required under this Agreement. Nonetheless, WMIF shall be responsible to the County for the acts and omissions of its subcontractors and any other PersDn that is directly or indirectly employed by the subcontractors. 4.16.2 Nothing in this Agreement shall create any contractual relationship between any subcontractor and the County 01' any obligation on the purt of the County to pay any monies thaI may be due to any subcontractor. No subcontract shall relieve WMIF of its responsibilities under this Agrecment. 4.17 Educational Prosrrams. WMIF shall assist the County in providing educational programs concerning the Facility. At a minimum, WMIF shall conduct guided tours (not to excecd one per week unless otherwise mutually agreed between WMIF and the Project Manager) of the Facility for the benefit of the public, and WMIF shall prepare educational brochures and materials for distribution during such tours and programs, when requested to do so by the Project Manager. The form and content of the educationBl brochures shall be subject to the review and approval of the Project Manager. 4.18 Storage Of Materials And Eauipmcnt. 4.18.1 WMIF shall inform the Project Manager about WMIF's anticipated needs for lay-down and storagc arcas for the materials expected for the Facility. If such areas are too large to be located on the Premises, the Project Manager shall designate the lay-down, storage, and processing areas on the Site that also may be used. WMIF shall confine its equipment, materials, vehicles, and personnel to the Premises and the on-Site areas designated by the Project Manager. Deliveries to WMIF for the construction of the Facility shall be scheduled to minimize space and time requirements on the Site. 4.18.2 WM1F shall keep all driveways, entrances, and on-Site roads clear and unobstructed at all times. These areas shall not be used for parking or storage of materials or equipment. 9 Agenda Item No. 10L December 16, 2008 Page 19 of 69 4.18.3 WM1F shall not use the Site for vehicle repairs or maintenance, except the repair or replacement of flat tires or other similar activities that do not pose a threat of Pollution. 4.18.4 WMIF at all times shall keep and maintain the Premises in a clean and orderly condition. 4, I 8.5 WM1F shall be solely responsible for the proper disposal of any Solid Waste or other mate.ria1 generated by WM1F during tIle Telm. During and llpon completion of constmction of the Facility, WMIF shall promptly remove and properly dispose of any accumulations of waste material8, rubbish, and Dther debris resulting fi'om WMIF's activities on the Premises. WMIF or its subcontractor(s) shall pay the applicable disposal fee (i.e., tipping fee.) to the County for any constl'Uction and demolition debris, Solid WBste or other material that WMIF places in the Landfill for disposal; however, this requirement does not apply to the disposal oCthe office paper and office waste generated by WMlF in the Facility's administrative offices. 4.19 County's Right To InsDect Facilitv. The County shall have the umestricted right to observe WMlF's activities on the Site, inspect WMIF's Facility, collect samples on the Site, and otherwise monitor the Bir, water, soil, sound, and odor on the Site at any reasonable time to verify WMlF's compliance with the requirements of this Agreement. However, the COlmty must comply with reasonable safety and security requirements, a5 well as the Pelmits and Applicable Law. 4.20 Safetv And Securitv On Site. 4,20.1 Except as otherwise provided herein, WMlF shall be solely responsible for the personal safety of its personnel, its Bubcontractors, and any other Pe1"Son when they are on the Site. WMIF shall be responsible for initiating, maintaining, and supervising all safety precautiOlls and programs concerning WMIF's activities on the Site. WMIF shall take all reasonable precautions for the safety of, and shall provide the necessary protection tD prevent damage, i~ury or loss to, any Person on the Site and any materials, equipment, or buildings on the Site. 4.20.2 WMIF mBY require any Person entering the Site to comply with reaBonable Bafety and security rules. WMIF shall not be the guarantor of the personal safcty DC any County employee or County invitee that fails to comply with such rules. 4.20.3 Alcohol, drugs, and illegal substanceB are prohibited on the Site. The employees of WM1F, its subcontractors, and agents shall not possess or be under the influence of any such substances while on the Site. Fmther, such Persons shall not bring any pistol, rifle, firearm, or explosiveB onto the Site. 4.20.4 All of WMIF's employees and subcontractors shall obtain a contractor's identification card from the County before they enter the Site. WMlF'B employees and subcontractors shall wear and display a valid and eUlTent CoHier County identification card at all times while they are on the Site. 10 Agenda Item NO.1 OL December 16, 2008 Page 20 of 69 4.20,5 No later than ten (10) days before the Commencement of Construction, WMIF shBII meet with the Security Chicf to discuss WMIF's security plan and confirm that WMIF's security procedures during the construction of the Facility wj]J be consistcnt with WMIF's Operations Manua!. 4.20.6 No Ialer than ten (10) days before the Commercial Operation Dale, WMIF shall meet with the Security Chief to discuss WMIF's security plan and confirm that WMIF's security procedures during the operation of the Facility wj]J be consistent with WMIF's Operations ManuB!. 4.21 Protection Of Facility And Premises. WMIF shall be solely responsible for the protection and safekeeping of any material and equipment stored on the Site. WMIF shall protect all of the materials, equipment, Bnd physical impl'Ovements on the Premises fl.'om loss or damage. WMIF shall solely bear the costs of any loss or damage to such materials and equipment, the Facility, or Premises, unless the loss or damage is caused by the negligent, reckless, or intentional misconduct of a County employee or County invitee. 4.22 Emerl!:encv Communications System. WMIF shall develop, implement, and maintain a communications system that will allow representatives of the County and WM1F to conmmnicate inmlediate1y with each other at any time, twenty-four (24) hours per day, 8even (7) days per week. Emergency contact information for the Director of the County's Solid Waste Depmtment ("Director"), the Project Manager, the Site Superintendent, and the Opemtor shull be updated, as needed, and at least once every six (6) months after the Commencement of Constructioll. WMIF's Site Superintcndent and OperatOl' shall always respond to communications from the Director and Project Manager as expeditiously as possible, 4.23 Duty To Cooperate. At all times during the Tetro, the Patties shall cooperate with each other and work in good faith to accomplish the goals and comply with the requirements set fOlth in this Agreement, Section 5: Notices For Start Of Construction And Onernlioll 5.1 Commencement Of Conshuction. WMIF shall provide written notice to the Project Manager at least two (2) Busincss Days before the Commcnccmcnt Df Construction of the Facility. 5.2 Staltuo And Shakedown. WMIF shall provide written notice to the Project Manager at least two (2) Business Days before WMIF begins the startup, shakedown, and commissioning of the Facility. The starlup and shakedown period shBll commence when WMIF begins to pl'Ovide LFG to the Facility for the purposes of starting and testing the engines used to generate Eiech-icity. 5.3 Commercial Operation Date. When the starl11p and shakedown period is completed, WMIF shall provide the Project Manager with written notice that the Facility is commencing Commercial Operation. The Commercial Operation Date shall be the date when 11 Agenda Item No. 10L December 16, 2008 Page 21 of 69 the County receives WMIF's notice. WMIF shall deliver its notice within one (I) Business Day after the Facility achieves Commercial Operation. WMIF's notice shall include all test datil, rep0l1s, and other Records necessary to demonstrate thBt the Facility is ready for Commercial Operation. Section 6: Duty To Inform County 6.1 WMIF shall hrunediately pl'ovide vel'bal notice to the County whenever there is a spill, re1eBse, or other event on the Premises that poses an imminent risk of Pollution or a threat to the public health. WMIF also shall provide written notice within two (2) Business Days after such event. WMIF's verbal and written notices shall describe the problem, the steps taken by WMIF to address the problem, the expected dmation of the problem, and the expected impBcts of the problem. 6.2 WMIF shall notify the County within two (2) Business Days after WMIF delelmines that the Facility is not operating, 01' has not been operating, or wiII not be operating in compliance with the requirements contained in this Agreement 01' any Permit. 6.3 WMIF shall provide the County with a copy of any correspondence or other Records sent to or received from the FDEP or Bny other Governmental Authority concerning the Facility. This obligation includes BlI monitoring reports, permit applications, Citations, notifications conceming a failure to comply with any applicable Permit, and other matters, whether transmitted c1cctronically or in a hard copy. All such documcnts shall be delivcrcd to the County within three (3) Business Days after they are sent or received by WMIF. 6.4 WMIF shall inform the County about any complaint WMIF receives from a neighbDr, homeowners association, or other Person concerning the Facility. WMIF shall provide the Project Manager with copies of (a) all letters and electronic complaints WMIP receives and (b) BIl written and electronic telephone logs, forms, or reports WM1F prepares conceming such complaints, These materials shall be delivel'ed to the Project Manager within two (2) days after they are received or prepared. At the same time, WMIF shall provide the Project Manager with a written repOlt describing how WMIF addressed each complaint. Section 7: Title To LFG And Mineral Ri!!hts 7.1 Title To LPG. The County represents and warrants to WMIF that, BS of the Effective Date, the County owns and has good and marketable title to all LFG generated in the Landfill and has the exclusive right to extract, use, sell, dispose, assign or transfer all of the existing and future LFG in accordance with this Agreement. 7.2 No Mineral Ri!!hts Or Production Ri!!hts. Nothing in this Agreement 01' the LOA shall be deemed to grant to WMIF any production rights or other rights to, or interest in, any oil 01' natural gas or othel' minerals located under or in the Landfill. 12 Agenda Item NO.1 OL December 16, 2008 Page 22 of 69 Section 8: Sale OfLl"G 8.1 Sale Of LFG To WMIF. Subject to the conditions contained herein, during the Telm (a) the County agrees to sell to WMIF all of the LPG that is collected by the LFG Collection System and needed by WMIF to operate the Facility and (b) WMIF agrees to purchase from the County all of the LFG that is needed by WMIF to operate the Facility. WMIF shall \Ise its best eff0l1s to operate the Facility at its design rated capacity on a continuous basis and thus use as much of the County's LPG as feasible. However, the County Bhall have nD obligation to provide LFG in qUBntities that exceed the amount that is collected by and available in the LFG Collection System, and WMIF shall have no obligation to purchase LFG ill quantities that exceed the amount needed to operate the Facility. The County shall have no obligBtion to provide additional quantities or types offuel for the Facility. 8.2 Flared Gas. The County and WMIF acknowledge that the Facility may not be ab1c to lIse all of the available LFG for the generation of Electricity and, therefore, part 01' all of the LPG will be bUl'lled by WMIF in a flare, unless the County uses the LFG for other purposes. Flaring ofLFO by WMIF will be performed in accordance with WMIF's Operations Manual and Applicable Law. 8.3 Cmmtv's Ri~ht To Use Or Sell LFG. 8.3.1 Notwithstanding anything else contained in this Agreement, the County may use the I,PG collected in the LFG Collection System, and the County may divel1, transfer, deliver, or sell such LFG to another Person (other than WMIF) at any time, if and to the extent that WMIF is unable or lInwilling to use the LFG in the Facility to generate Electricity (e.g., when the Landfill produces more LFG than WMlF needs). All permitting, design, and operational activities necessary to accomplish diversion shall be at the County's cost and expense. 8.3.2 The County shall give written notice to WMlF at least thirty (30) days before the County exercises its rights under Section 8.3,1, above. 8.3.3 The County's activities Plll'suant to Section 8.3.1 shall not: (a) cause a violation of the Permits or Applicable Law; 01' (b) materially and adversely affect WMIF's operation of the Facility or the LFG Collection System. Section 9: WRITalltles For LFG And FaclIitv Onerations 9.1 No WalTanties For LFG. THE COUNTY MAKES NO WARRANTIES AS TO THE QUALITY OR QUANTrTY OF LFG THAT WILL BE SOLD TO WMlP PURSUANT TO THIS AGREEMENT. THE COUNTY AND WM1F AGREE THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED FROM THIS TRANSACTrON AND DO NOT APPLY TO THE LFG SOLD HEREUNDER. WMIF KNOWINOL Y AND VOLUNTARlL Y ACCEPTS ALL RISKS AND RESPONSIBILITIES ASSOCIATED WITH THE QUANTITY AND QUALITY OF THE LFG SOLD TO WMIF PURSUANT TO THIS AGREEMENT. 13 Agenda Item NO.1 OL December 16, 2008 Page 23 of 69 9.2 Warranty For Facility Operations. The design rated electric generating capacity of the Facility shall be at least fow' (4.0) megawatts. WMIF shall use its best effOlis to operate the Pacilityat its design rated capacity at least ninety percent (90%) of each Operating Year, as determined on an allllual average basis. WMIF shall use its best effOlts to limit each of the FacilitY'B scheduled outages for maintenance to two (2) days or less in duration. Section 10: Measurement Of Landfill Gas 10.1 Measurement Standards For LFG. The unit of volume for measuring the LPG delivered hereunder shall be one standard cubic foot ("SCF") of LPG, corrected to a base temperature of sixty (600) degrees Fahrenheit, at an absolute pressure of 14.65 pounds per square inch, and saturated with water vapor. All fundBmental constants, observations, Records, and procedures involved in determining the quantity of LFG delivered hereunder shall be in accordance with the standards prescribed in RepOlt No.3 of the American Gas Association, as now in effect and from time to time amended oj' supplemented. The unit of energy used for the measurement of LFG shall be the British Thermal Unit ("BTU"). The energy content of the County's LPG shall be detelmined by multiplying: (i) the volume of LPG, expressed in SCF; by (ii) the amollnt of methane (CH4) in the LFG, expressed as a fraction of the LFGj by (iii) a fixed quantity of 1,012 BTU per SCPo The number of MMBTUs in the County's LFG shall be determined by dividing the BTU content of the LPG by one million (1,000,000). 10.2 Uncontrollable Conditions In LPG Collection System. The Palties recognize that moisture, pressure, or other conditions within the LPG Collcction System may prevent the metering devices and related equipment ("Metering Equipment") from maintaining proper calibrations. If such conditions persist, the Parties shall attempt to mutually detelmine a protocol for cstimating LFG deliveries nsing such data as is available. If the Parties cannot mutually agree, they shall utilize the dispute resolution procedures set forth in Section 35, below. Section 11: Sale OfElcctrlcitv l1.1 Sales Of Electricity. WMIF shall use its best efforts to sell all of the Electricity generated on the Site in a manner that maximizes the gross revenues generated from the sale of such Electricity. WMIF shall not provide or use the Electricity from the Facility for on-Site or off-Site aetivities or pl1l'poses other than Electricity sales; provided, however, that WMIF may use the Electricity to: (a) operate the equipment and lights for the Facility; and (b) conduct other activities if WM1F receives prior written approval for sueh use from the Director. 11.2 Sharing E1ectricitv Revenues. WMIF shall pay the County fifty percent (50%) of all revenue received by WM1P from the sa1c of Electricity generated by the Facility, when aud to the extent that the average sales price for Electricity in a Billing Period exceeds the applicable revenue-sharing threshold identified in Exhibit HE". The average sales price for Electricity shall be detelmined by dividing (a) the gross revenues received by WMlF for Electricity sales in a Bllling Period (b) by the total number of megawatt-hours of Electricity sold by WMlF in such Billing Period. Nothing contained herein shan be construed to require the County to pay WMIF for Electricity jf the sales pl'ice for the FBcility's Electricity is 1es8 than the applicable revenue- sharing threshold in Exhibit "E". 14 Agenda Item NO.1 OL December 16, 2008 Page 24 of 69 11.3 Countv's Ri~ht To Use Electricity. At the County's request, WM1F shall sell the Electricity fi'om the Facility tD the County, if such Electricity can bc provided by WMIF without violating: (a) the terms of WM1F's electrical sales contracts with other Persons; (b) any Applicable Law; or (c) the requirements for maintaining the Facility's status as a "qualifying facility" under the Public Utilities Regulatory Act of 1978 and the regulations adopted thereunder. If WMIF provides Elcctricity to the County, the County shall pay WMIF the sallie price per kilowatt-hour that WMIF would rcceive from a third party purchaser under the same conditions, as indicated by WMIF's then current contract(s) for the sale of Electricity, Section 12: Metel'llIl! Eaullllnent FOl' LFG And Electrlcltv 12.1 Meterinll Eouipment. WMIF shall install, tcst, calibrate, maintain, and operate Metering Equipment that will enable WMIF to measure accurately snd continuously (a) the volume of LPG, measured in SCP, used by the Facility to generate Electricity; (b) the amount of methane in the LPG, expressed as a fraction of the LPG; and (c) the Electricity transmitted from the Facility to the Grid. At a minimum, the Metering Equipment for Electricity shall comply with any teclmical specifications and requirements that govern WMIF's Interconnection to the Grid, including but not limited to the requirements established by the Person thst will purchase the Electricity from WMIF. The Metering Equipment shall be subject to the County's prior approval, which shall not be unreasonably delayed or withheld. 12.2 Testing Of Metcring Eouioment. WMIF shall take all necessary steps to ensme that its Metering Equipment accurately and continuDus1y measures tile LFG used by the Facility and the Facility's electrical output to the Grid. At a minimum, WMIF shall: (a) maintain the Metering Eqtlipment in good working condition at all times, in accordance with the mannfactmer's specifications and good operating practices; (b) hire one or more independent, qualified, third party technicians or consuHsnts to test and calibrate the Metering Equipment; and (c) perform such testing and calibration at least once before the Commercial Operation Date and at lcast once everyone hundred eighty (180) days theresfter throughout the Term. WMIF may conduct additional tests at any time, after giving notice to the Project Manager. 12.3 Notice Of Tests. WMIF shall give written notice to the County at least two (2) Business Days before any test or calibration is conducted on the Metering Equipment. Within seven (7) days after the tests are completed, WMlF shall provide a copy of the independent contractor's repOlt to the Project Manager. At a minimum, the report shall indicstc: (a) whether, snd the extent to which, the Metering Equipment was inaccurate; (b) the cause of any inaccuracy; (c) thc duration of any inaccuracy, if the duration can be ascertained; (d) whether any inaccuracy is expected to reoccur; and (e) the steps taken to con'ect any inaccuracy. 12.4 Right To Re<lUest Additional Tests, The Project Manager may request one 01' more additional tests of the Metering Equipment at any time, The Project Manager shall have the right to select any independent, qualified, third palty to conduct such tests. The third palty shall be subject to WMIF's approval, which shall not be unreasonably delayed or withheld. 12.4.1 The cost of performing additional tests concerning LFG shall be paid by the County if the tests demonstrate that any inaccuracy in the LFG measurements from the 15 Agenda Item NO.1 OL December 16, 2008 Page 25 of 69 Metering Equipment is less than two pel'cent (2%). The cost of performing the LFG tests shall be paid by WMIF if the tests demonstrate that the inaccuracy is equal to or greater than two percent (2%). 12.4.2 TI,e cost of perfOlming additional tests conceming Electricity shall be paid by the County if the tests demonstrate that any inaccuracy in the Electricity measurements fmm the Metering Equipment is less than one percent (1.0%). The cost ofperfOlming the Electricity tests shall be paid by WMIF if the tests demonstrate that the inaccuracy is equal to or greater than one percent (1.0%). 12.5 Right To Observe And InsDect Meterinl!. EouiDment. Each Party shall have the right to be present at any time when a Party or other Person is installing, reading, sampling, cleaning, changing, repairing, inspecting, testing, calibrating, or adjusting the Metering Eq1.1ipment. Each Party shall have the right to conduct an inspection of the Metering Equipment at lIny time. 12.6 COlTections OfInaccurate Measurements. 12.6.1 IfWMIF learns at any time that any Metering Equipment is not messuring or has not measured accurately, WMIF shall immediately pmvide notice to the Project Manager. If the Metering Equipment is or was inaccurate by two percent (2%) or more with regard to LFG measurements or by one percent (1.0%) or more with regard to Electricity measurements, any payment based upon the inaccurate Metering Equipment shall be com:cted for any period of inaccuracy which is known or agreed upon, or if not known or agreed upon, then for a period extending back one-half of the time since the date ofthe most recent calibration of the Metering Equipment. 12.6.2 Iffor any reason any Metering Equipment for LFG is out of service or out of repair to such a degree that the quantity of LFG used by the Facility cannDt be ascertained or computed from the readings of the Metering Equipment, the quautity of LFG delivered during such period shall be estimated and agreed upon by the Pmiies, by using the first of the following methods that is feasible: (a) by using the data from a back-up or alternate meter if auy such meter is installed and measuring accurately; (b) by COlTecting the en'or, jf the percentage of error is ascertainable by calibration, test, or mathematical calculation; or (c) by determining the quantity of LFG used by the Facility during a prior Billing Period whcn the Facility was operating under similar conditions and the Metering Equipment was measuring accurately. 12.6.3 If the Metering Equipment for Electricity is out of service or out of repair to snch a degree that the quantity of Electricity transmitted to the Grid carumt be ascertained or computed from the readings of the Metering Equipment, the quantity of Electricity shall be dete.rmined by using the first of the following methods that is feasible: (a) by using the data from a back-up or alternate meter (e.g., a meter uscd by a Person purchssing the Electricity from the Facility), if any sllch metcr is installed and reading accuratc1y; (b) by correcting the enm, if the percentage or error is ascertainable by calibration, test, or mathematical cslculation; or (c) by determining the quantity of Electricity transmitted to the Grid during a prior Billing Period when 16 Agenda Item No. 10L December 16, 2008 Page 26 of 69 the Facilit}' was operating under similar cDnditions and the Metering Equipment was messuring accuratel}' . 12.6.4 Ifit is not feasible to use an}' of the methods identified in (a), (b), or (c) of Subsections 12.6.2 or 12.6.3, as applicable, and the Parties are unable to agree about the appropriate method of correcting the inaccurate measurements, the Parties shall utilize the dispute resolution procedures set fmih in Section 35. below. Section 13: New Tax Credits And Emissions Credits 13.1 New Tax Credits. 13.1.1 If and to the extent that New Tax Credits become available to WMlF from an}' Governmental Authority, WMIF shall pa}' to the Count}' an amount equal to ninet}' percent (90%) of the gross revenue or other financial benefits received by WMIF in connection with or as a result of any sale, use, transfer, assignment, or other disposition of such New Tax Credits. 13.1.2 Subject to the other provisions contained herein, WMIF shall use its best efforts to qualify for and claim the benefits of Alternative Energy Tax Credits snd New Tax Credits that will maximize the revenues earned by the Facility and shared by the Psrties. However, WMIF shall not be obligated to claim New Tax Credits if and to the extent that such action would cause WMIF to lose its right to qualify for or claim more lucrative Alternative Energy Tax Credits. 13.2 Emissions Credits. 13.2.1 WMIF shall pay to the County an amount equal to ninet}' percent (90%) of the gross revenue, or other financial benefits received by WMIF in connection with or as a result of any sale, use, transfer, assignment, or other disposition of Emissions Credits that WMIF owns and are in any way attributable to, generated by, or related to the use of the County's LFG or the gencration of Electricit), in the Facility. WMIF shall use its best effOl1s to sell or use alI Emissions Credits in a manncr that maximizes the revenue derivcd from such credits. 13 .2.2 In lieu of paying the County for Emissions Credits, WMIF may transfer the Emissions Credits that WMIF owns to the County, and the County may market and sell the credits itself. If the County sells the Emissions Credits, the County shall keep all of the revenues from such sales. Section 14: Pavments To Couu!y 14.1 Pavments For l.FG. 14.1.1 WMIF shall pay thc County for all of the LPG that is generated in the Landfill and used by the Facility. However, WMIF shall pay for LFG used during the stsliUp and 8hakedown period before the CDmmercial Operation Date only if and to the extent WMIF is paid by its customer(s) for the Electricity generated during the startup and shakedown period. 17 Agenda Item No.1 OL December 16, 2008 Page 27 of 69 The amount of the Gas Sales Payments from WM1F to the County shall be calculated pursuant to the fonnu1as set fOlih in Exhibit "En. 14.1.2 Within twenty (20) days after the end of each Billing Period, WMIF shall pay to the County the total amount ofthe Gas Sales Payment that is due and owing fi'Om WMIF pursuant to this Agreement for the Billing Period. WMlF's Gas Sales Payment for the first Billing Period shall include WMIF's payment (if any) fDr the LFG that WMIF uscd before the Commercial Operation Date. With each payment, WMIF also shall provide the County with a billing statement that includes the calculations and back-up data uscd by WMIF to determine the total amount of the Gas Sales Payment to the County. 14.2 Pavments For Electricitv. 14.2.1 Subject to the other conditions contained herein, WMIF shall share its revenues with the County for all of the Electricity that is generated by the Facility and sold by WMIF for a price that exceeds the applicable revenue-sharing threshold identified in Exhibit "E". WM1F shall pay the County for all such Electricity generated during the Term, including but not limited to the Electricity (if any) that is sold during the stallup and shakedown period before the Commercial Operation Date, The amount of the Electricity Sales Payments from WM1F to the County shall be calculated pursuant to the formlllas set forth in Exhibit "E". 14.2.2 Within twenty (20) days after the end of each Billing Period, WMIF shall pay to the County the total amount of the Electricity Sales Payment that is due and owing from WMIF pursuant to this Agreement for the Billing Period. WMIF's first Electricity Sales Payment shall include WMIF's payment for the Electricity (if any) WMIF sold before the Commercial Operation Date. With each payment, WMIF also shalt provide the County with a billing statement that includes the calculations and back-up data used by WMIF to detelmine the total amount of the Electricity Sales Payment. 14.3 Payments For New Tax Credits And Emissions Credits. WMIF shall pay the County for New Tax Credits and Emission Credits, in accordance with Section 13 herein, throughout the Tenn, including but not linuted to the period before the Commercial Operation Date, Within twenty (20) days after the cnd Df WMIF's fiscsl year, WM1F shall pay to the County the total amount that is due and owing from WMIF for New Tax Credits for the preccding fiscal year. WM1F's first payment shall include WMIF's payment for the New Tax Credits and Emission Credits WMlP received before the Commercial Operation Date. With each payment, WMlF also shall provide the County with a billing statement that identifies the total amount of the gross revenues and any other financisl benefit WMIF received during the Billing Period from New Tax Credits and Emissions Credits. The requircments in this paragraph do not apply to Emissions Crcdits if sllch credits are transfelTed to the COllnty and sold by the County, 14.4 Depreciation Payments 14.4.1 If the TcnTI is extended pursnant to Section 2.2, ahDve, WMIF shall pay a depreciation fee to the County during the Renewal Tenn. 14.4.2 The depreciation fee shall be equal to the average annual depreciation that WMIF claimed for the Facility during the Initial Term, For the purposes of this Section 14.4.2, 18 Agenda Item NO.1 OL December 16, 2008 Page 28 of 69 the average arumal depreciation shall be deemed to be three hundred fifty-two thousand dollars ($352,000), which is one-twentieth (1I20) of the estimsted capital cost for the Facility (i.e., seven million forty thousand dollars ($7,040,000)). The depreciation fee shsll be paid to the County in twelve equsl monthly payments of twenty-nine thousand three hundred IInd thiJt)'-four dollars ($29,334.00) during each year of the Renewal Tcnn. The depreciation fee shall be paid each Billing Period dnring the Renewal Telm, in the same malUler as the Gas Sales Payment. t4.5 Deductions From LOA Pavments, The Gas Sales Payment, the Electricity Ss[es Payment, the payments for New Tax Credits and Emissions Credits, the payment of rent, the depreciation psyments, and sny other payments due from WMIF to the County, may be deducted from the County's payments to WMIF under the LOA, at the County's option, ifWMIF fails to make such payments in compliance with the requirements set forth herein. 14.6 Adiustments For Chanl!:es In Lsw. 14.6.1 WMIF may petition the County for an adjustment equal to fifty percent (50%) of the costs required to comply with II Change in Law that directly and significantly increases WMIF's costs. The Change in Law must directly relate to compliance with the environmental laws and regulations (including but not limited to air quality) thllt affect the opemting permit(s} that govern the Facility. Any such petition shall be based solely 011 a Change in Law that directly and significantly increases the cost WMIF will incur under this Agreement to comply with the environmental laws and regulations that govern WMIF's performance under this Agreement. The County shall not entertain or grant petitions based on any other gl'Ounds. Only those capital expenditures that will exceed Oue Hundred Thousand Dollars ($100,000) pel' Change in Law event, or operating costs that exceed Forty Thousand Dolllll's ($40,000) per calendar year, will be considered. 14,6.2 For 1he purposes of this Seetion 14,6: (a) a capitsl cost shall not be deemed "significant" unless it exceeds Olle Hundred Thousand Dollars ($100,000) per Change in Law event; (b) an operating cost shall not bc deemed "significant" unless it exceeds Forty Thousand Dollars ($40,000) per calendar year; and (c) a "cost" shall only include direct, out-or-pocket expenses paid by WMIF to a third party that is not affiliated with WMIF, without any mark-up, administrative chsrge, or profit for WM1F. A cost shall not include any expense paid by WMIF for its own employees, affiliates, and administration. A cost paid to a third party may include II profit earned by the third patty. 14.6.3 TIre petitioning procedure for WMIF shall be as follows: 1. Promptly after WMIF learns of a Change of Law affecting its perfOlmance under this Agreement, WMIF shall provide the County with a copy of the notice regarding the Change in Law, including the complete text of the Change in Law and the deadline for compliance. 2. Within llinety (90) days after WMIF provides notice to the County, WMIF shall provide the Connty with a written cstimate of the dollar amount of WMIF's proposed compliance plan and WMIF's proposed schedule for implementation. 19 Agenda Item No. 10L December 16, 2008 Page 29 of 69 3. To the extent that WM1F's costs are easily calculable (e.g., the capital expenditure is knO\\~l by Vit111C of a quote, 01' proposal, or expenses that are easily projectcd from prior expenses for the same or similar items), WMIF may project its costs without the necessity of performing an audit in the manner set fOlih below. In all other cases, among other things, WM1F's petition shall include: (a) an audited statement of WMIF's historical and CUlTent expenses, demonstrating that WMIF will incur an increase in WMIF's costs due to the Change in Law; and (h) evidence demonstrating that (i) the increased costs are caused by factors beyond WMIF's control, (H) WMIF has used and will continue to use due diligence tD minimize the financial impact of the Change in Law, and (Hi) the increased costs occurred thl"Ough no fault ill' negligence of WMIF. The audited statement shall be prepared by a certified public accountant, licensed in the State of Florida, who is not an employee ofWMIF or its affiliates. At its expense, the Couuty may audit WM1F's rccords 10 evaluate WMIF's request. The Pl"Oject Manager may request fl"Om WM1F, and WM1F shall pl"Ovide, all of the information that is reasonably necessary for tile Project Manager to evaluate WMIF's petition. Only those capital costs in excess of One Hundred Thousand Dollal.s ($100,000) per Change in Law event, or operating costs that exceed FOliy Thousand Dollars ($40,000) per calendar }'ear, will be considered in WM1F's petition for an adjustment based on the Change in Law. 14.6.4 Within sixty (60) days after the County receives all of the information required p\ll"8Uant to Section 14.6.3, above, the C01mty shall review WMIF's petition and discuss the compliance options with WMIF. The County and WMIF shall coordinate their efforts and strive to achieve compliance with the Change in Law in a cost-effective and efficient mannel'. Compliancc options may include, but are not limited to the following: 1. Preliminary approval of the proposed compliance plan provided by WMIF; 2. Requiring WMIF to conduct a formal solicitation for equipment, material and/or services in compliance with the CutTent County Purchasing Policy; 3. Reserving the COlmty's right to make direct purchllses of various materials and equipment Included in the compliance plan; 4. Utilizing the County Value Engineering Procedure. 14.6.5 If the Project Manager and WMIF reach a mutual agreement on sharing the costs of the compliance plan, the Project Manager shall prepare an Executive Summary for approval of the compliance plan on an upcoming Board agenda, 14.6.6 If tbe Project Manager and WMIF are unable to reach a mutually scceptab1e agrecmcnt within 90 days after the County receives aU of the infOlmation required pursuant to Section 14.6.3, above, either the Project Manager or WMIF may invoke the services of the Independent Engineer, as defined herein. The Independent Engineer shall be selected by the Project Manager and WMIF, but if that cannot be done within 30 days, the Independent Engineer shall be selected by the President of the American Arbitration Association from a list of engineering consultants agrccd to by the County and WMIF. Once the Independent Engineer is 20 Agenda Item NO.1 OL December 16. 2008 Page 30 of 69 provided with all the information required pmsuant to Section 14.6.3, the Indcpcndcnt Enginccr shall have 60 days to prepare a written report and recommendation concerning the merits of the Parties' dispute. The Independent Engineer will be empowered to designate any expert he deems necessary to assist in the resolution of the dispute, The County and WMIF shall each bear their own costs and expenses, and both shall pay eqnally the fees and expenses of the Independent Engineel' (including the fees Bnd cxpenses of any experts designated by the Independent Engineer). 14.6.7 TIle recommendation of the Independent Engineer is subject to approval by the Board of County Commissioners and shall be considered by the Board of County Commissioners at a regular noticed meeting. 14.6.8 The Board shall grant Or deny WMIF's petition at a public meeting, which shall be conducted within ninety (90) days after (a) the Project Manager and WMI!' reach a mutually acceptable agreement concerning the cost sharing amount or (b) the Independent Engineer issues a written recommendation concerning the Parties' dispute. The Bosrd's decision to grant or dcny WMIF's petition shall be based on the criteria contuined in this Section 14.6. 14.6.9 The County, in its sole discretion, shall determine the method by which the County will make payment of the costs. The County may make payment by: (a) reducing the amount of WMIF' s payments to the County pursuant to one or more of the schedules in Exhibit "E"; (b) making a !tUlip sum psyment to WMIF; (c) making periodic payments to WMlF; or (d) making other financial an'angements that both Parties deem appropriate. However, any financial arrangement selectcd by the Connty must be bssed on commercially reasonable terms and conditions. 14.6.1 0 The County shall have the right to restore palt or all of the original paymentl'cquirements in the Agreement if WMI!"s costs are subsequently reduced by a Change in Luw. Every twelve (12) months aftcr a request is granted, the Project Manager shall have the right to request, and WMIF shall prepare promptly upon request, an updated a.Jdited statement and explanation of whether the adjusted payment schedule should remain in effect. UpOll review, the Project Manager and WM1F shall "true-up" the projected costs after twelve (12) months, by comparing the projected costs to the actual costs. In the event a dispute develops regarding the amount of any true-up, either Party may invoke the services of the Independent Engineer to resolve the dispute in the same mamIeI' described in Sections 14.6.6, 14.6.7, and 14.6.8, above. 14.7 Rent Payments For Lease. WMIF shall pay rent to the County for the lease of the Premises. The rent shall be ten dollars ($10.00) per Operating Year. The first ten dDlIars paid to the County cach Operating Year for LFG sales shall be deemed to constitute WMlF's payment fDr rent inlhat Operating Year. ] 4.8 Disputes ReJ(arding Billing Statements. After receiving a billing statement from WMIF pursllant to this Section 14, the COllnty may dispute any amount or calculation set forth in the billing statement. If any dispute under this Section 14 is based on an allegation that the statement is inaccurate due to an inaccuracy of the Metering Equipment, either Patty may request 21 Agenda Item No. 10L December 16, 2008 Page 31 of 69 an additional test 01' independent calibration of the Metering Equipment and, thereafter, the statement shall be adjusted, if necessary, based on the results of the additional test or calibration. If the County requests additional tests of the Metering Equipment, the CDst of the tests shall be paid in accordance with Section 12.4, above. WMIF shall pay for any additional tests it requests. If the dispute does not involve the accuracy of the Metering Equipment, then the dispute shall be resolved in accordance with the procedures set fOlth in Section 35. 14.9 Errors In BilIin!!. If either Party discovers that there has been an overcharge or undercharge in the amount of any payment, the Party discovering the enol' shall notifY the other Party in writing within thi.t1y (30) days. Within forty-five (45) days after the notice is delivered, WMIF shall conect the error by increasing 01' decreasing, as appropriate, the amount ofWMIF's next payment to the County under this Agreement. WMIF also shall payor collect interest on the amount owed in such cases, plll'suant to Section 14.10, below, from the date of the underpayment or overpayment until (he elTor is conected. 14.10 Delinauent Pavments. All amounts payable by the County pursuant to this Agreement shall be paid in compliance with the Local GDvernment Prompt Payment Act (Section 218.70 et seq., Florida Statutcs), as applicable. All other payments required pursuant to this Agreement shall accrue interest at the Approved Rate from the date when such amounts are thirty (30) days past due until they are paid in full. 14,1l Billina Statements. The form and content of WMIF's billi.tlg statements are subject to the approval of the Project Manager. Draft billing statements shall be submitted to the Project Manager at least twenty (20) days before the beginning of the stal1up and shakedown period. 14,12 Other Payments To County. WMIF shall not use the County's LFG for auy pWJlose that is not explicitly authorized herein or approved in advance in writing by the County. 1fWM1F receiyes revenues from the sale or use of the County's LFG in an unauthorized manner (e.g., for sludge dl"}~ng), WMIF shall pay the County an amount equal to nincty percent (90%) of the gross revenue received by WM1F for such sale or use. WMIF shall pay such revenues to the Couuty within twenty (20) days aftcr the end of the Billing Period in which such revenues are received by WMIF. 14.13 Pavments Based on Alternative EnerllY Tax Credits. 14.13,1 The Parties recognize that the Alternative Energy Tax Credit may be amended in the future. This Section 14.13 explains how the payments fi'om WMIF to the County will be affected under various scenarios. 14.13.2 WMIF's Gas Sales Payments and Electricity Sales Payments shall be governed by Schedule I and Schedule 2, respectively, in Exhibit "E" if the Facility qualifies for the Alternative Energy Tax Credit, as currently enacted as of the Effective Date. 14.13.3 Even if the Facility fails to qualify for the Alternative Energy Tax Credit, as currently enacted as of the Commercial Operation Date, WM1F's Gas Sales Payments and 22 Agenda Item No. 10L December 16, 2008 Page 32 of 69 Electricity Ssles Payments to the County shall nonetheless be governed by Schedule 1 and Schedule 2, respectively, in Exhibit "E" if: (a) the Facility qualifies for the Alternative Energy Tax Credit, as amended after the Commercial Operation Date; and (b) the financial benefits of the Altemative Energy Tax Credit, as amended, are at least equal to the financial benefits available from the Alternative Energy Tax Credit as currently enacted. Section 15: Rccords And Reports 15.1 Records And Recordkeeping. It shsll be WM1P's sole responsibility to keep and maintain all of the electronic and paper Records needed for WMIF to demonstrate that it has satisfied sll of WMIF's obligations under this Agreement. Among other things, WMlF shall keep and maintain sll Records that are necessary to determine, calculate, and verify the amount of the payments to be made to the County pursuant to this Agreement. At a minimwn, WM1F's Records shall idcntify and fully document the amount of: (a) LFG used by the Facility; (b) Electricity tl'ansmitted fi'om the Facility to the Grid; and (c) New Tax Credits; and (d) Emission Credits; and (e) the capital costs of WMfF in the permitting, design, construction, and commissioning of the Facility, the preparation and site work of the Premises, and any offsite work required to facilitste or enabling permitting, development and operation of the Facility and the Pl'emises; and (f) operating costs directly rclated to a Change in Law. All of WMIF's Records conceming the Facility shall bc complcte, organized, up-to-date, and accurate 15.2 Countv's Right To Insoect And Audit Records. WMIF shall make its Records available to the County for inspection and copying at the Site dul'ing normal business hours, whenever requestcd by the County, within foulieen (14) days after WMIF receives the County's reqtlest. The County shall have the right, at its own cost and expense, to conduct an audit of WMlF's Records at any time. 15.3 Retention Of Records. WMIF shall retain all nf its Records for five (5) years following the termination or expiration of this Agreement, or for ally longer period required by Applicable Law. 15.4 Records Conccrning Electricitv Sales. New Tax Credits. And Emissions Credits. At least ten (10) days befOie the Commercial Operation Date, WMIF shall provide the Project Manager with copies of all of WMIF's contracts and other agreements conceming (a) the sale of the Electricity gencrated by the Facility and (b) the sale, transfer, or other use of New Tax Credits and Emissions Credits. Thereafter, WMIF shall provide the Project Manager with copies of all new cOlltmcts, contract amendments and renewals, and related agreements within ten (10) days after WMIF receives such documents, WMIP's failure to provide these Records shall constitute a material default ttnder this Agreement. 15.5 Monthly ReoOlts. WM1F shall prepare and submit a monthly repOlt to the Project Manager when WMIF submits its billing statement for a Billing Peliod. The monthly repOli shall contain all of the data, infOimation, and Records necessary to verify WM1F's calculation of the amounts to be paid to the County pursuant to this Agrcement. The monthly rep01t also shall identify and describe sny events or conditions that adversely affected the operation of the Facility dlll'ing the Billing Period Or are reasonably expected to adversely affect the operation of 23 Agenda Item NO.1 OL December 16, 2008 Page 33 of 69 the Facility in the future. The content and format of the monthly report shall be subject to the approval of the Project Manager. 15.6 A1mual RepOlts. Within thilty (30) days after the end of each Operating Year, WMIF shall prepare and submit an annual report to the Project Manager. The annual report shall summarize the data presented in WM1F's mDnthly reports. Among other things, the annual repOlt shall provide the following information for the Operating Year: (a) the total amount of LFG used by the Facility; (b) the total amount of Electricity transmitted tD the Orid; (c) the total amount of gross revenue collected by WMIF for the ssle of Electricity, identified by customer; and (d) the gross revenues and other financial bcnefits received by WMIF from New Tax Credits and Emission Credits, respectively, The annual repOlt also shall identify and describe: (a) any anticipated conditions 01' events that are reasonably expected to affect the operation 01' perfomlance of the Facility, or the revenues derived by the County from LFG, Electricity, New Tax Credits, Emissions Credits, or other attributes oIthe Facility; (b) the steps WMW is taking to address any chronic or systemic problems or concerns regarding or affecting the Facility; and (c) educational activities and other notable events that have occurred at the Facility in the past year or are anticipated in the future. The fonnat and content Df the annual report s]1811 be subject to the approval of the Project Manager. Secllon 16: Compliance With Laws. Permits. AmI Pr'ohibitions 16.1 Comnliance With Laws. WMW shall comply with all Applicable Laws concerning the Landfill and the Facility. 16.2 Compliance With Pefmits. WMlF shall comply with all Permits that are required under Applicable Laws fOf WMIF to perform its obligations under this Agreement, 16.3 Comoliance With Prohibition8. Subject to the other provisions contained herein, WMIF's activities under this Agreement shall not cause: (a) Pollution; (b) Objectionable Odors beyond tlte boundary of the Site; (c) nuisance conditions affecting off-Site areas; (d) violations of any Applicable Law that limits noise or sound levels in areas located beyond the boundary ofthe Site; or (e) violations of sny other Applicable Law. Section 17: Relnllatorv Citations And Public Complaints 17.1 Respondiug To Citations. WMIF slral! respond promptly to all Citations conceming or related to WMIF's activities under this Agreement. WMlF shall provide notice and a copy of each Citation to the Project Manager no later than the next Business Day aUer the Citation is received by WMIF at the Site, or receivcd by WMRE in its corporate offices, whichever occurs first. Thereafter, WM1F shall keep the Project Manager infolmed about the on-going status of WMIF's efforts to address the Citation, and shall provide notice to the Project Managef when the Citation has been satisfactorily resolved. WMIF shall pay all costs of investigating and responding to Citations, all costs of conecting deficiencies and achieving compliance with Applicable Law, and any fines assessed as a result ofWMIF's non-compliance. 24 Agenda Item NO.1 OL December 16, 2008 Page 34 of 69 17.2 Citations Issued Bv The County. If an agency or division of Collier County issues a Citation that WMIF believes is improper, WMIF shall sdvise the Project Manager within three (3) days about the circumstances concerning the Citation, The Project Manager shall pl'Omptly schedule a meeting with WM1F, the issuing agency, and the Pl'Oject Manager to attempt to resolve WMIP's concerns about the Citation. If the Parties are unable to resolve the malter, it shall be addressed in accordance with the dispute resolution process in Section 35. During the pendency of any such process, the County's enforcement proceeding shall be stayed. 17.3 Public Como1aints. WMIP shall respond promptly to any complaint received by WMIF from any Person conceming or related to WMIF's activities under this Agreement, WMIF shall use its best efforts to rcsolve sllch complaints 8S cxpeditiously as possible. Section 18: Authorized Uses Of The Premises 18.1 Prior Approval Reclllired To Use The Site. WMlF shall not use the Site or the Premises for any activity unless the activity is expressly authOlized by this Agreement or the LOA, or WMIF has received the advance written approval of the Pl'Oject Manager. The County's conscnt in this Agreement to the proposed uses of the Premises shall not be constl'Ued to waive or negate WMIF's obligation to comply with all Applicable Laws, including the County's land development code, building code, and othcr laws govcrning WMIF's activities on the Premises. 18.2 Authorized Uses Of Premises. Subject to the conditions contained in this Agreement, the County grants WMIF the right to occupy mId Ilse the Premises, including the right to construct, install, own, maintain, and operatc the Facility on the Premises. WMIF also may: (a) store materials, equipment, and supplies on the Premises, when necessary for the construction, opcration, or maintenance of the Facility; (b) access the Premises by using the cntrance to the Site and the roadways on the Site; (c) extend water, sewer, electric, telephone, and other utilities, as well as LFG condensate and leachate conveyance pipes, to the Prcmises; (d) connect the Facility to the Landfill flare and Ilse the flare to dispose of excess LFG, when necessary; and (e) install electric tmnsmission lines and rclnted cquipment connecting the Facility to the Grid. 18.3 Easements Across The Site. Subject to the conditions contained in this Agreement, WMIF is authorized to enter into agrecments creating easements across, under, and over the Site, as necessary for the installation, constl'Uction, maintenance, repair, and replacement of electric transmission lines, utility lines, Leachate conveyance systems, and related systems serving the Facility. Any such easement agreement shall be subject to the County's prior written approval, which shall not be unreasonably withheld or delayed. The County agrees that it will, if necessary, join in the execution of any easement agreemenllhat has been approved by the County. Any easement and any easement agreement grunted by the County pursuant to this Agreement shall terminate when tillS Agreement expires or tenninates. 25 Agenda Item No. 10L December 16, 2008 Page 35 of 69 Section 19: Title To Improvements And Equipment On The Premises For the duration of the Term, WMIF shall hold title to alllBDveab1e electrical equipment and other improvements WM1F erected, installed, 01' constmcted on the Premises. Upon the expiration of this Agreement, the County shall have the option and right to purchase the permanent structures, fixtures, and improvements made to the Premises for the sum of aile dollar ($1.00). For the purp08es of this paragrsph, the permanent fixtures do not include the engine- generators, fuel compressor skid, or the switch gear; however, these components of the Facility may bc purchased by thc County for an amount that is m\ltually acceptable to the Patties. If the County purchases the permanent structures, fixtures, and improvements to the Premises, WM1F shall deliver appropriate doc\lmentation to the County for the purposes of identifying and recording their sales transaction. If the County does not pm'chase the permanent stmctures, fixtures, and improvements to the Premises on or before the expiration of this Agreement, WMIF shall remove all such structures, ftxtures, and improvements within one hundred eighty (180) days after the expiration of the Agreement,. unless the County wsives part or all of this requirement in writing. Section 20: Rleht Of First Offer To Purchase Facility DllDn Closure WMrF hereby grants to the County a right of ftrst offer to purchase the Fscility at any time WMIF pennanently and completely ceases operation of the Facility. If WMIF proposes to pennanently and complcte1y cease operation of the Facility, WMIF shall give the Director written notice of WMIF's intcntion to do so, deserihing the price and the general tenns upon which WMIF is willing to sell the Facility. After recciving WMIF's notice, thc County shall have sixty (60) days to agree to WM1F's proposal or negotiate mutually acceptable tenus for the pW"ehase of the Facility. If the County and WMIF do not timely agree regarding the purchase of the Facility, WMIF shall dismantle the Facility and restore the Site to grade level in accordsnce with Section 32 herein, unless the County waives part or all of this requirement in writing. WMIF shall not sell the Facility to any Person other than the County unless (a) such sale is approved in writing by the County or (b) the Facility will be removed from the Premises and the Premises will bc restored by WMIF in accordance with Section 32. The County's rights \mder this paragraph shall survive the tennination of this Agreement. Section 21: Riehl To Purchase Facility Aftcr Ten Opel'sting Years At any time after the tenth (10th) anniverssry of the Commercial Operation Date, the County may telminate this Agrcement and purchase the Facility, if the Parties negotiate a mutually acceptable purchase price. The County shall provide at least one hundred eighty (180) days prior written notice to WM1F before the County exercises its right to purchase the Facility. WMIF shall execute appropriate bills of sale and other documents for the Facility and all of the associated improvements to the Premises \lpon the payment to WMIF of the purchase price. Upon the execution of all necessary documents to consummate the sale of the Facility: (n) this Agreement shall tellninate; (b) WMIF shall have no further obligation to operate or maintain the Facility; and (c) the Patties' rights and responsibilities under this Agreement shall be extinguished, except for those obligations that survive the telmination offhis Agreement. 26 Agenda Item NO.1 OL December 16, 2008 Page 36 of 69 Section 22: Rella;!' OC P!'emises WMIF shall keep and maintsin the Premises and the Facility in a good state of appeal'flnce and repair, reasonable wear and tear excepted, and shall promptly repair and replace the same in the event of nny deterioration, loss, or damage. If the Facility or an)' part thereof is damaged or destroyed for any reason to such an extent that WMIF's operations are substantially impaired, WMIF may terminate this Agreement after providing written notice to the Co\mly. Such notice shall be provided within sixty (60) days after the event causing the damage or destruction. If WMIF does not notify the County within sixty (60) days, this Agreemcnt shall not terminate and WMIF shall promptly repair and restore the Facility. If this Agreement is terminated by WMIF pursuant to this Section 22, WMIF shall remove its buildings, fixtures, equipment and improvements from the Premises and restore the Premises in accordance with Section 32, below. WMIF's obligation to repair and restore the Premises shall survive the termination of this Agreement. Section 23: Exnansion OCTbe Fneility Subject to the other provisions contained in this Agreement, the Parties wish to use all of the LFG generated by the Landfill for the production of Electricity. Accordingly, the Parties anticipate that WM1F lIlay expand the Facility in the future, when and to the extent necessary to maximize the llse of the LFG. To the extent feasible, WM1F shall design and construct the Facility in a manner that acconllllOdates the future expansion of the Facility. However, neither Palty shall be obligated to expand the Facility. If any cxpansion of the Facility occurs, the cxpansion shall be subject to terms and conditions that are mutually acceptable to the Parties. Such terms shall be negotiated before any such expansion and then recorded in an amendment 10 this Agreement. Section 24: Pavlllent Of Costs And Expenses WMIF shall pay and discharge as they become due, promptly and before delinq\lency, all utility fccs, Permit fees, impact fee8, 1nterconnectiDn fees, insurance premiums, salaries, expenses, interest, and all other costs and expenses of all kinds associated in any way with WMIF's activities on the Premises and obligations under this Agrccment. The County shall not be obligated to pay any such costs or expenses, except and only to the extent that this Agreement explicill)' provides for such payment by the Count)'. Section 25: Discharge Of Liens WMIF covenants and agrecs that it shall kcep, or cause to be kept, the Premises, the Site, and all equipment and matcrials that are incorporated into the Facility or are the propelty of WM1F, fi'ee and clear of mechanics, laborers, or material mens liens, and all other liens of a similar nature that may arise in connection with work of any character or service of any natl11'e at the Site. Within ninety (9()) days after the filing of any such lien, WMIF shall, at its own expense, take any action necessary to discharge such lien. If the County discovers any lien that should be discharged by WMIF pur5uant to this Agreement, the County shall promptly give written noticc to WMIF, If WMIF fails to discharge such lien within ninety (90) days, then the 27 Agenda Item NO.1 OL December 16, 2008 Page 37 of 69 County may, but is not obligated to, procure the discharge of the lien by either paying the amount claimed to be due into eourt or by procuring a bond for such amount. Any amount paid or deposited by the County for such purposes, together with all associated costs and expenses, including attorneys' fees, shall be paid by WMIF to the County within fifteen (15) days after such payment is requested by the County. Section 26: Subordination Of Mort!!a!!"e This Agreement shall be subject and subordinate to any m0l1gage or other instnlment seclU'ing bonds or other indebtedness upon the Site, which shall become a lien on the fee title to the Site. However, the County warrants and agrees that WM1F shall have the rights granted under this Agreement and, therefore, the County shall procure and maintain such rights for WM1F, notwithstanding the County's grant of any mortgage or other security interests on the Site. Section 27: Condemnation If the Premises or any p0l1ion thereof is condemned or taken by a Governmental A1.1thority during thc Term, WMIF and the County shall request the court in such condemnation proceeding to make separate awards to the County and WMIF, based upon their separate interests in the propel1y being condemned or taken. If the CDUl1 is unable or unwilling to make separate awards, WMIF and the County shall equitably appoltion the award between them, based on their respective interests, Section 28: Indemnification And Limitation Of Llabllitv 28.1 Indemnification Bv WMIF. 28.1.1 WMIF shall defend, protect, indemnify, and hold harmless the County, from and against any and all Claims which the County may at any time suffer, sustain, 01' become liable for because of: (a) the hsndling, transportation, management, use or disposal of any Solid Waste, LFG, Condensate, leachate, Electricity, or other solid, liquid, or gss managed by WM1F under the pl'Ovision8 of this Agreement; (b) WMIF's violation of any Applicable Law; (c) WM1F's breach of this Agreement; (d) WMlF's negligence or intentional or willful misconduct; (e) the breach of, misrepresentation in, untruth in, or Imown inaccUfacy in lIJ1Y representation, warranty, or covenant of WMIF as set forth in this Agreement; or (f) WMIF's use, OCC\lpancy, or operation of the Premises. 28.1.2 For the purposes of this SectiDn 28, the "County" shall be deemed to include the Board aud the County's offieers, agents, consultants, employees and affiliates, and "\VM1F" shall be deemed to include WMRE, WMIF's subcontractors, sub-subcontmctors of any tier, and their respective officers, agents, employees, snd affiliates. 28.2 Duty To Defend. WMIP's duty to defend the County is separate from WMIF's duty to indemnify. The dUly to defend exists regardless of any ultimate liability of WMIF, the County or any indemnified Person. The duty to defend arises immediately upon presentation of a Claim by any Person and written notice of such Claim being pl'Ovided to WMIF. 28 Agenda Item No.1 OL December 16, 2008 Page 38 of 69 28.3 Survival Of ObliRations. WMIF's obligstion to indenmify and its duty to defend shall survive. and shall remain in full force and effect, notwithstanding the expiration or telmination of this Agreement. The limitation of liability provisions in Section 28.4, below. also shall snrvive the expiration and termination of this Agreement. 28.4 Limitation Of Liabilitv. 28.4.1 Notwithstanding any other provision of this Agreement, but subject to the proviso set fMh herein: (a) the County and WMIF shall only be liable for direct damages suffered by the other Palty as a result of a breach or default of this Agreement by the Non- PerfOlming Party; and (b) neither Party shall be liable to the other Party for any special. indirect, incidental or consequential damages (including cost of money, lost profits, loss of use of capital or revenne), or for claims of non-Pal1y customers. or any punitive or exemplary damages whatsoever with respect to the subject matter of this Agreement, whether any Claim for such damages shall arise under this Agreement, from statutory or regulatory noncompliance. in tOlt (whether negligence. strict liability or otherwise). or any other cause or fOlm of acllon whatsoever, provided that thc foregoing limitation on liability shall not limit WMIF's obligation to indemnify, defend and hold harmless the County for any losses occasioned by third pal1y Claims. 28.4.2 In any and all Claims against the County, the indemnification obligations of WMIF shall not be limited in any way by any 1inlitation 011 the amo\mt or type of damages. compensation, or bencfits payablc under any insurance policy or Applicable Law, including any Workcrs' Compensation and industrial insurance acts, disability benefit acts, or other employee benefits acts. 28.4.3 Nothing in this Agreement shall be constmed in any way to affect the County's rights, privileges, and immunities as set f011h in Section 768.28, Florida Statutes. as amended from time to time. This indemnity and hold hfllmless obligation does not limit any additional compensation available from insnrance, bonding, Dr equitable and legal remedies available under this Agreemcnt. 28.4.4 If either Party breaches this Agreement, the other Paliy shall use commercially reasonable effolts to mitigate the damages, losses, costs, and expenses it suffers as a result of the breuch. 28.5 Insurance Proceeds. Any amount paid to a County indemnified Person for an illdellU\ity Claim hereunder shall be net of any insurance procceds paid to such Person under any insul'ancc policies in connection with such indemnity Claim. 28.6 Relationshio With Other Agreements. Thc rights and obligations of the Parties under this Agreement ~re in addition tD and cumnlative with the rights and obligations of the Paliies under the LOA and any other agreements relating to the Landfill. This Agreement is not intended to limit the scope of the LOA or any other agreement between the Parties relating to the Landfill or the Parties' rights and remedies under any such agreement. 29 Agenda Item No.1 OL December 16, 2008 Page 39 of 69 28.7 No Release Of Insurers. The provisions of this Section shall not be construed so as to relieve any insurer Df its obligatiDn to pay any insurance proceeds in accordance with the terms and conditions Df valid and collectible insurance policies. In the event any insurer providing insurance covering any judgment obtained by the County against WMIF for an indemnified loss refuses to pay such judgment, WMlF shall execute such documents as may be necessary to effect sn assigrunent of its contractual rights against the non-paying insurer snd thereby give the County the oppOltunity to enforce its judgment directly against such insurer, provided that nothing in this Seclion 28.7 shall relieve WMIF of its liability hereunder to pay such loss, expcnse or Claim, 28.8 Indemnification Bv County. Subject to the limitations set f0l1h in Section 768.28, Florida Statutes, the County hereby agrees to protect, indemnify and hold hamlless WMIF from and against any Claim that is filed against WMIF by a third party and bssed on the negligence of the CDunty, willful misconduct, or material breach of this Agreement by the County. The County's obligations under this paragraph only extend to the extent ofthe County's negligence, willful misconduct, or material breach of this Agreement by the County, except and to the extent that such Claim, loss or damage was caused directly or indirectly by WMIF. Section 29: Insurance 29.1 Reuuired Insurance. 29.1.1 Insurance During Operation. WM1F shall obtain, not later than ten (10) days before the Commercial Operation Date, and maintain during the Telm the minimum insurance set fOlth below, except that the Pollution Liability cDverage set faIth in subsection (e) and the Property insurance set forth in subsection (f) shall be obtained not later than the Commencement of Construction. By requiring such minimum insurance, the County shall not be deemed or construed to have assessed the risks that may be applicable to WMIF. WMIF shall assess its own risks and if WMIF deems it appropriate and/or prudent, WMIF may maintain greater limits andlor brosder coverage. Each insurance policy shall be written on an "occurrence" form except Pollution Liability and Contractors Pollution Liability which may be written on a "claims made form". In the event of cancellation or non-renewal of policies written on a "claims made" basis, WMiF agrees to purchase extended reporting period coverage of not less than five years. Insurance coverage shall be at least as broad as stated below and with limits no less than: (a) Gelleral Liabilitv. Coverage shaH be at least as broad as Insurance Services Office form number CG 00 01 Ed. 11-88 covering COMMERCIAL GENERAL LIABILITY, with limits not less than $5,000,000 combined single limit per occurrence, and fDr those policies with aggregate limits, a $5,000,000 General Aggregate limit which shall apply separately to this specific project and a $5,000,000 Products & Completed Operations Aggregate limit. Aggrcgate limits shall apply separately to each annual policy period. The policy shall not contain any limiting endorsements. The policy shall not exclude coverage for sudden and accidental eKplosion, collapse and underground damage (XCV) to property of others. (b) Automobile Liabilitv. Automobile liability insurance providing coverage at least as broad as Insurance Services Office fonll number CA 00 01 Ed. 12f90 30 Agenda Item No.1 OL December 16, 2008 Page 40 of 69 covering BUSINESS AUTO COVERAGE, symho11"any auto"; or the combination of symbols 2, 8, and 9, with limits not less than $1,000,000 combined single limit per accident for bodily iIuury and property damage. (c) Workers' Comoensalion. Statutory limits and requirements of the State of Florida (Chapter 440, Florida Statutes) and federal law. Coverage shall be at least as broad as Workers' Compensation coverage, as required by the State of Florida, as well as any similar coverage required for this work by applicable federal law. (d) EmDlover's Liability or "StOD GaD". Coverage shall be alleast as broad as the protection provided by the "Stop Gap" endorsement to the general liability policy. Coverage shall be included at limits of $1,000,000 Each Accident, $1,000,000 Policy Limit _ Disease, and $1,000,000 Each Employee - Disease (e) Pollution Liabilitv Insurance. Coverage shall be in the amount of $10,000,000, per occmrence and in the aggregate, to cover sudden and non-sudden bodily injlU"Y and/or property damage, including the physical injury or destruction of tangible propeliy, loss of use, clean lip costs, and the loss of lIse of tangible propeliy that has not been physically injured or destroyed. In the event that the aggregate limit is erodcd in any policy year, WMIF agrees to purchase a reinstatement of the aggregate Iimil, if available. Coverage for Po1hltion conditions shall include vibration, noise and odors. Coverage shall be endorsed to include: (i) Third pady Claims for on-Site bodily injury and property damage; (ii) Third party Claims for off-Site bodily injury and propedy damage; and (Hi) Third pmiy Claims for off-Site clean-up. (f) Property Insurance. Coverage for the Facility, including the building and all contents, with a limit of not less than 100% of the replacement cost values for special fOlm pedIs including wind, hail, hunicane, equipment breskdown and flood. CoverRge shall include consequential and business interruption losses to all prope.iy that is directly damaged by the accident, and shall cover all rcasonab1e costs of temporary repairs and expediting expenses, with a limit of $ 10,000,000 per occurrence. (g) Umbrella Liabilitv. Coverage for all Claims in excess of and following the underlying Conunercial General Liability, Automobile Liability, and Employers Liability coverage, as set forth in Sections 29. 1.1 (a), (b), and (d) with limits not less than $10,000,000 combined single limit pel' OCCIll1"enCe, and for those policies with aggregate limits, a $10,000,000 aggregate limit. A $10,000,000 al1llual aggregate limit shall apply separately to this specific project. 29.1.2 Insurance During Design And Construction. In addition to WMIF's maintenance of the above insurance, WMIF shall proell1'e or csuse its construction contractor to procure the following insurance described below for the period from the Conunencement of Construction until the Commercial Operation Date: 31 Agenda Item NO.1 OL December 16, 2008 Page 41 of 69 (a) General Liabilitv. Coverage shall be at least as broad as Insurance Services Office form number CO 00 01 Ed. 11-88 covering COMMERCIAL GENERAL LIABILITY, with limits not less thsn $5,000,000 combined single limit per Dccurrence, and for those pDlicies with aggregate limits, a $5,000,000 aggregate limit. The policy shall not exc1udc coverage for sudden and accidental explosion, collapse and wlderground damage (XCD) to properly of others. (b) Automobile Liability. Automobile liability insurance with limits not less than $1,000,000 combined single limit per accident for bodily injury and propelly damage. (c) [Reserved] (d) Workers' Comoensation. Statutory limits and requirements of the State of Florida (Chapter 440, Florida Statutes) and federal law. Coverage shall be at least as broad as Workers' Compensation coverage, as required by the State of Florida, as well as any similar coverage required for this work by applicable federal law. (e) Emplover's Liabilitv 01" "Stoo Gao". Coverage shall be at least as broad as the protection provided by the "Stop Oap" endorsement to the general liability policy. Coverage shall be for a limit of no less than $1,000,000, (t) Contractors' Pollution Liabilitv. Coverage shall be in the amount of $10,000,000, per OCCUlTcnce and in the aggregate, to cover sudden and non-suddcn bodily injmy andlor prope11y damage, including the physical injury or destmclion of tangible property, loss of use, cleBll up costs and the loss of use of tangible property that has not been physically injured or destroyed. (g) Builder's Risk CDVerage. "All Risk" Bllilder's Risk Insurance in a form at least as broad as ISO form number CP0020 (Builders Risk Coverage Form) with ISO form number CP 1 030 (Causes of Loss Special POInt) including coverage for collapse, theft, WId property in transit. Coverage shall be endorsed to inchlde Wind and Flood. The coverage shall insure for direct physical loss to property of the entire Facility for 100% of the replacement cost value thereof. The policy shall be endorsed to cover the interests, as they may appeal', of the County. (11) Umbrella Liabilitv. Coverage of all Claims in excess of and following the terms of the underlying insurance with limits not less than $10,000,000 combined single limit per oecun'ence, and for those policies with aggregate limits, a $10,000,000 aggregate limit. 29.2 Terms And Conditions. The following terms and conditions shall be applicable to all insurance coverages specified above: 32 Agenda Item NO.1 OL December 16, 2008 Page 42 of 69 29.2.1 DeductibleslSe1f-Insured Retentions. The deductible and/or self-insured retention of the policies shall not limit or apply to WMIF's liability to the County. WMlF shall be fully and solely responsible for any costs or expenses subject to a coverage deductible, co- insurance penalty, Dr self-insured retention. WMIF shaH disclose any deductible or self- insurance retentions on WMlF's commercial insu1'llnce policy(ies) in excess of one hundred thousand dollars ($100,000). When a self-insured retention or deductible exceeds one hundred thousand dollars ($100,000) for any of the requircd insurance policies, the County rcscrves the right, but not the obligation, to review and request a copy of the most recent annual report or a\1(lited financial statements for WMIF's parent corporation (Waste Management, Inc.) to determine whether the retention levels are reasonable, based on the financial capacity of WM1F's parent corporation. However, WMIF shall not be requircd to modii}' 01' amend its insurance coverage or rctentions, nor will WMIF be required to obtain bonding, a parent corporation guarantee, or take other actions with regard to such deductib1es or retention, provided WMIF complies with the other requirements contained herein. 29.2.2 Other Insurance Pl'Ovisions. The insw'ance policies required by this Agreement are to contain and be endorsed to contain the following provisions: (a) With respcct to all liability policies, except Workers' Compensation and Pl'Ofessionlll Liability, Errors and Omissions, the County shall be named as an additional insured on the policies provided by WMIF but only with respect to the liabilities assumed under this Agreement. (b) WMIF's and its construction contractors' of all tiers insurance coverage shall be primary and not excess to any insurance 01' self-insurance maintained by the County or its representatives but only with respect to the liabilities assumed under this Agreement. Any insurance 01' self-insurance maintained by the County or its representatives shall not contribute with WMlF's or its const11lction contractors' insurance 01' benefit WMIF or the construction contractor in any way. (0) WMIF's and its constmction contractors' inslIl'ance shall apply separately to each insured agaillst whom a claim is made and/or lawsuit is brOllght, except with respect to the limits of the insurel's liability. (d) The insurance compsny shall provide the County and WMIF with at least thirty (30) days prior written notice of any cancellation or intended non-renewal of such insurance policy. (e) The Board shall be named as the certificate holder. The "Celtificate Holder" shall rcsd as follows: Collier County Board of COlmty Commissioners Naples, Florida 33 Agenda Item NO.1 OL December 16, 2008 Page 43 of 69 No County Division, Department, or individual names should appcar on the ceJ.1ificate. The certificate shall identify this Agreement and the County's contract number for this Agreement. 29.3 AcceDtabilitv Of Insll1'crs. Unless otherwise approved by the County, with respect to WM1P's insurance obligations: (a) Insurance is to be placed with insurers with a Bests' rating of no less than A:VlJI or, ifnot rated with Bests', with minimum surpluses the equivalent of Bests' surplus size VIII. (b) Professional Liability, En'ors and Omissions insurance may be placed with insurers with a Bests' rating of B+:VII. (c) If at any time the foregoing policies shall fail to meet the above requirements, as to fmm or substance, or if a company issuing any such policy shall fail to meet the standards above, WMIF shall, upon notice to that effect from thc County, meet with the COlmty to detelmine if snch circumstances indicate that WM1F should procure a new policy to replace the deficient policy. 29.4 Evidence OfInsurance. 29.4.1 WMIF shall furnish the Project Manager with cel1ificates of insurance and endorsements required by this Agrcement, which evidence and demonstrate compliance with the requirements of this Agreement, within ten (10) days before the date such insurance is required to be p1sced into effect and upon the renewal of any such policy of insurancc. All cvidence of insurance must be ce11ified by a properly authorized officer, agent, general agent 01' qualified representative of the insurer(s) and shall certify the name of the insured, the type and amount of insurance, the location and operations to which the insurance applies and the expiration date of the policy. Upon request, WMIP shall allow the County to inspect copies ofrequired insurance policies at a mutually agreeable time and date. 29.4.2 To the extent that the inslU'ance policics and coverage that WMIF is required to procure under this Agreement are the same as the insurance policies and coverage required to be procured by WMIF under the LOA, WMIF is only required to provide one set of such policies and coverage, if (a) the insurance underwriter of each policy in the set acknowledges that the coverages are applicable to this Agreement and the LOA; and (b) if a policy limit, deductible, or policy term differs between the LOA and this Agreement, the most stringent limit, deductible, or policy ternl shall be proclU'ed by WMIF. 29,5 Waiver Of Subrollation Required, WMlF shall require the carders of the required property insurance coverage to waive all lights of subrogation against the County and its representatives. 29.6 Failure Constitutes Material Breach. Failllre on the pa11 of WMIF to procure or maintain required insurance eoverages shall constitute a material breach of this Agreement. All required insurance shall be maintained in force at all timcs. 34 Agenda Item No.1 OL December 16, 2008 Page 44 of 69 Sedlon 30: FOl'ce Maicure 30.1 Effect Of Event Of Force Maieure. If a Party is prevented, hindered 01' delayed from perfOlming any of its obligations under this Agreement (excluding an obligation hereunder of a Palty to pay money to the other Party, pay insul'llnce premiums when due, or pCtfOml any indemnity obligation) by an event of Force Majeure, then so long as that situstion continues, the affected Party shall be excused from porformance of such obligations to the extent it is prevented, hindered 01' delayed, and the time for the perfolmance of such obligations shall be extended accordingly. 30.2 Notice Of Events Of Force Maieure. TIle affected Party shall notifY the other party within three (3) Business Days of the occurrence of the event of Force Majeure, its effect or likely effcct on the affected Party's ability to perform its obligations hereunder, and the likely duration of the event of Force Majeure. TIle affected Party shall keep the non-affected Party informed of any changes in such circumstances, including when such event Df Force Majeure ends. Following the receipt of a notice given pursuant to this Section 30.2, the P81ties shall consult in good faith to assess the event of Force Majeure, the effects thereof, and any ways in which it may be mitigated or avoided. Each Party shall attempt in good faith to notity the other Patiy of any events which may be reasonably expected, with the lapse of time 01' otherwise, to hecome an event of Force Majeure. 303 Oblillations Followin2 Occun'ence Of Event Of Force Maieure. 30.3.1 The affected Party subject to Section 30.1 shall use all reasonable efforts to remedy the circumstances constituting the event of Force Majeure (if practicable), mitigate the adverse effects of the event of Force Majeure, and remedy the event of Force Majeure expeditiously. The affected Patiy shall notify the non-affected Party of the remedy or termination of the event of Force Ml\ieure and the date on which the affected P81iy will resume its perfDnnance hereunder. 30.3.2 Suspension of any obligation as a result of an event DfForce Majeure shall not affect any rights 01' obligations which may have accrued prior to such suspension or, if the event of Porce Majeure affects only some rights and obligations, any othcr rights or obligations of the Parties. To the extent thst the non-affected Party is prevented, hindered or delayed from performing its obligations under this Agreement as a result of the affected P81iy's failure to perform its Dbligations as the result of the event of Porce Majeure, such non-affected Party shall be relieved of its obligations to the extent such non-affected Party has been prevented, hindered or delayed by the affected Party's fsHure in performance. So long as the affected Party has at all times since the OCCUlTcnce of the event of Force Majeure complied with the obligations of Sections 30.2 and 30.3 and continues to so comply, thcn any pelfolnlanCe deadline that the affected Palty is obligated to satisty 01' achieve under this Agreement shsll be extended Dn a day- for-day basis equsl to the period commencing on the date the event of Force Majeure occurs and ending on the date that such event is cured. 30.3.3 Notwithstanding anything to the contrary set forth in this Agreement, an affected Party shall not be excused from the performance of its obligations hereunder as a result of an event of Force Majeure to the extent that a failure or delay in performance would have 35 Agenda Item NO.1 OL December 16, 2008 Page 45 of 69 nevertheless been experienced by the affected Party had the event of Force M~elU'e not occUlTed. 30.4 Termination For Extended Force Maieure. Notwithstanding the foregoing, if an event of Force Majeure has prevented an affected Party from performing any of its obligations under this Agreement for one hundred eighty (180) consecutive days during the Term and such event of Force Majeure has not been remedied on the expiration of such 180-day period, then either Party may terminate this Agreement by providing a notice of intent to terminate to the other Party. Section 31: Defaults. Termination And Remedies 31.1 Events Of Default. Each of the following events shall constitute event5 of default which, if not cured within the time pennitted (if any) to cure such event of default, shsll entitle the non-defaulting Party to tenninate this Agreement pursuant to Section 31.2: 31.1.1 WMIF terminates or suspends the design, permitting, conslluction or operation of the Facility fDr a period ofthitty (30) days in any ninety (90) day period, without the writtcn consent of the County; 31.1.2 The failme by either Party to mske any payment required to be made under this Agreement when due, where such failure continues for ten (10) days after notice 1l1ereofis given by the non-defaulting Party; 31.1.3 The failure of a Palty to comply with any covenant, requirement, obligation, or agreement contained in this Agreement; 31.1.4 Either Party commences a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a \I'llStee, receiver, liquidator, custodian or other similar official of it or any substantial palt of its property 01' shall consent to any such relief 01' to the appointment of or taking possession by any such official in an involuntary case or other plOceeding commenced ugainst it, or shall make a general assignment for the benefit of creditors, or shall fsil generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; 31.1.5 Either P81ty has an invDluntary case or other proceeding commenced against it seeking liql1idation, reorganization or other relief with respect to it or its debts undel" any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it 01" any substantial part of its propelty and such involuntary case or other proceeding shall remain undismissed for a period of sixty (60) days, or an order for relief shall be entered against it under the fcderal bankmptcy laws as now 01' hereafter In effect; 36 Agenda Item No. 10L December 16, 2008 Page 46 of 69 31.1.6 Any representation or warranty made by either Party In this Agreement shall prove to have been incorrect in any msterial respect when made and such failure has a material adverse effect on the other PlIIty; 01' 31.1.7 A failure by WMIF to achieve the Commencement of Construction on or before the second anniversary of the Effective Date. 3U.8 A failure by WMIF to achieve the Commercial Operation Date within twelve (12) months after the Conunencelllent of Construction, unless such fsilure is caused by a Force Majeure event 01' other fsctors that are beyond WMIF's control, and could not have been avoided through the exercise of duc diligence, and are not the result of any fault or negligence of WMIF. 31.1.9 The vo1untalY or invo1untalY dissolution of WMlf or any other action that terminates WMIF's existence as a corporate entity, except the merger of WMIF with WMIF's parent eOlporation, a subsidiary. oj' an affiliate. 31.2 Tennination Procedure. 31.2.1 Upon the OCCUfi'ence of a dcfault that is not cured within the applicable period (if any) for cure, the Patty seeking to terminate this Agreement (the "Temlinsting Party") may, at its option, initiate termination of this Agreement by delivering a notice of intent to terminate this Agreement to the other Party (the "Non-Perfonning Party"). The notice of intent to terminate shsll specify in reasonable detail the applicable defau\( giving rise to the notice of intent to terminate. 31.2.2 Except as otherwise provided herein, if the basis for termination is a failure to perfolm that can be cured, the telmination shall not take effect so long as the Non- Performing Party either (1) cures the default within thirty (30) days of rcceipt of the notice of intent to telminate, or (2) provides within said lhilty (30) days a reasonable written plan of action to cure the default within one hundred twenty (120) days of receipt of the termination notice and then cures the dcfault within said one hundred twenty (120) day period ("Cure Period"). Unless the defsult shall have been remedied during the Cure Period, the Party that issued the notice of intent to terminate may terminate this Agreement by delivering a termination notice to the Non- Perfonning Party, whereupon this Agreement shall telmlnate on the date set forth in the temlination notice (which date shall in no event be earlier than the dale such telmination notice is dclivered to the Non-Performing PUlty). The Agreement may be terminated by a tenuination notice based upon a default of Section 31.1.2 if the defsult is not fully remcdied within ten (10) days ofthc sending of the notice of intent to terminate. 31.3 Cumulative Remedies, In the event Df a default, the Telminating Party may, subject to this Section 31, pursue any remedy at Jawor in equity, including tennination of this Agreement without prejudice to any rights or scHons or remedies it may have in respect of any breach or default of this Agreement or any rights or obligations which expressly survive telminatioll of this Agreement. Except as expressly provided to the contrary in this Agreement, all rights and remedies of either Party are cumulative of each other and of every other right 01' 37 Agenda Item NO.1 OL December 16, 2008 Page 47 of 69 remedy available st law or in equity, and the exercise of one or more rights Dr remedies shall not p1'ejudice or impau' the concuuent 01' subsequent exercise of other lights and remedies, 31.4 Default by WMIF. If this Agreement is tenninated due to WMIP's default, the COlUlty shall retain al1 rights and title to the LFG generated by the Landfill. Under such circumstances, the County shall have the sole right to use, sell, transfer, 01' otherwise dispose of the LPG generated by the Landfill and the County shall have no obligation to work with WMIF on the development 01' implementation of any future LFG projects. WMIF shall cooperate with the County in its efforts to undeliake future LFG projects, and WMIF shall ollerate the Landfill and LFG Collection System in compliance with the LOA. The provisions of this paragraph shall sUlvive the termination of this Agreement. Section 32: Site Restoration 32, I Dutv To Restore The Site. If the County does not exercise its right of first offer in accordance with Section 20, then within one hundred and eighty (180) days following the expiration or termination of this Agreement, WMIF shall remove and dispose of any and all fixtures, equipment, trade fixtures, improvements, and any additions, alterations, replacements and betterments thereof and thereto, constructed by 01' for WMIF on the Site and the Premises, and restore the affected portiDns of the Site to grade level, at WMIF's sole expense, unless the County in its sole discretion agrees that pali or all of the improvcments by WM1F may remain on the Site. With respect to any improvements located undergrowld or below grade, WMIF at its sole cost shall remove such impmvements und restore the Site to grade level, unless the COl'nty agrees tbat WMlF may secure and abandon in place any 01' all such improvements. WMIF shsll repair any damage to the Site caused by the removal of improvements. 32.2 County's Ril!.ht To Restore Site, If such removal and restoration is not completed by WMIF within Dne hundred and eighty (180) days of the applicable deadline, then the County shall have the right to take over the restoration process and all costs and expenses reasonably incuned by the County to complete the removal and restoration shall be reimbursed by WMIF to the County. The County shall invoice WMIF within ten (10) days of the end of esch month during which the County incurs restoration costs, setting forth the amount of the restomtion costs in rcasonable dctail to verifY the work perfOlmed and the associated cost of such work. WMIF shsll pay the County the amount set forth in each invoice within ten (10) dsys ofils receipt. Section 33: SUlvivalOfOblieatlons Upon the expiration or termination of this Agreement, this Agreement shall have no fmiher force and effect, except that any rights and remedies that have arisen or accrued to eithcr Party prior to such expiration or termination, or any obligations or liabilities that have arisen or accrued before such expiration or termination shall in euch case survive expil'ation Dr termination. For example, the rights, remedies and obligations set oul in Sections 35 (Dispute Resolution), 43 (Notices) and 46 (MiseeJlaneous) shall survive in full force and effect following the expiration or telmination Df this Agreement to the extent necessary to enable a Party to exercise any of such accrued rights and remedies. Scction 28 (Indcmnification and Limitation of 38 Agenda Item No.1 OL December 16, 2008 Page 48 of 69 Liability) and Section 32 (Site Restoration), among others, also shall survive in full force and effect following the expiration or tenninatioll of this Agreement. Section 34: Payment And Performance Bonds 34.1 The Pavment Bond. At 1esst ten (10) days before the Commencement of Construction, WMIF shall obtain and deliver to the Pl'Oject Manager a Payment Bond in an amount sufficient to ensure full payment to all contractors and subcontractors pl'Oviding services 01' materials for the constructiDn of the Facility. The amount of the bond shall be seven million dollars ($7,000,000), or WMIF's estimate of the cost of constructing the Facility, whichever is greater. The form, content, and amount of the bond are subject to tbe Project Mansger's prior app1'Oval, which shall not be \I1u-easonab1y withheld. The fOlm of the Payment Bond shall be substantially in the fOlro of Exhibit "C", which is attached hereto. WMfF shall remain liable to the County for any defect or deficiency in the bond, or any deficiency in the payments to any contractor or subcontractor of any tier, which results in or causes the County to suffer any damages, fees, or costs. The Payment Bond shall comply with any applicable requirements in Section 255.05, Florida Ststutes, and other Applicable Laws. 34.1.i The Payment Bond shall be issued by a surety company tbat is acceptable to the County. At a minimum, the surety company shall be rated "A-" or better as to management and "FSC V" or better as to strength by Best's Insurance Guide or Surety, and shall be listed on the U.S. Treasury Depat1ment's list of acceptable sumties for federal boilds. The S\I1-ety shall have been in business Rnd have a record of successful and continuous operation for at 1cast five (5) years. The bond shall not be canceled or altered without at least thilly (30) days prior notice to the County. 34.1.2 Maintenance of the Payment Bond and the performance by WMIF of all of the obligations under this Section 34 shall not relieve WMIF of liability under the defsult and tennination p!'Ovisions set forth in this Agreement or from any other liability resulting from any breach of this Agreement. The Payment Bond may be "called" and used in accordance with its terms, Cslling or using the payment bond shall not restrict or preclude the use of any additional or other remedies available to the County against WMIF for breach, default or damages. 34.1.3 If the iSS\ler of the bond shall admit in wtiting its inability to pay its debts generally as they become due, file a petition in bankruptcy or a petition to take advantage of any insolvency act, make an assignment for the bcnefit of its creditors, consent to the appointment of a receiver of itself or of the whole 01' any substantial pari of its property, or file a petition 01' answer seeking reorgRnizalion 01' alT8ngement under the federal bankmptcy laws or any other applicable law or statute of the United States of America or any state thereof, then WMIF shall obtain a replacement bond, within thiliy (30) days of snch act or event, f!'Om another financial institution that satisfies the conditions set fOl1h in Section 34.1.1. 34.2 The Pelformance Bond. At least ten (10) days before the Commercial Opel'ation Date, WMIF shall obtain and deliver to the Pl'Oject Manager a Perfonnance Bond in the amount of five hundred thousand dollars ($500,000) to ensure the pelformance of WMIF in compliance with this Agrcement. The amount of the Pcrformancc Bond shall be reduced to thl-ee hundred 39 Agenda Item No.1 OL December 16, 2008 Page 49 of 69 thousand dollars ($300,000) if snd when the Facility is ineligible for Alternative Energy Tax Credits. The form and content of the Performance Bond are subject to the Project Manager's prior approval, which shall not be unreasonably withheld. The requirements in Section 34.1, above, concerning the Payment Bond shall also apply to the Pelformance Bond. Section 35: DlSDute Resolution 35.1 Disoute Resolution Process. The County and WM1F agree to cODperate and act in good faith at all times when dealing with each other. If any dispute arises between the Parties, the Parties shall attempt to resolve their differences quickly and infOlmally through negotiatiOlls. If the informal negotiations are unsuccessfn1, the Psrties shall seek relief by initiating a non- binding mediation process pursuant to Section 35.2, below, or by following the alternate procedures set forth in Section 35.3, below. The use of litigation shall be limited, as provided in Section 35.4, below. 35.2 Non-Binding Mediation. 35.2.1 When a dispute between the Project Manager and WMIF is pending or threatened, WMIF shall attempt to resolve the dispute with the Purchasing Director. If this attempt is unsuccessful, either Party may initiate a non-binding mediation process. WMIF and the County agree to p81ilcipate fully In the mediation process and conscientiously attempt to resolve their dispute. 35.2.2 Except as provided below, each Party shall bear its own expenses in connection with the mediation. Both Paliies shall pay equally for the services of the mediator. 35.2.3 TIle mediation shall take place in Collier County, Florida, 35.2.4 All applicable statutes of limitations and defenses based on the passage of time shall be tolled while the mediation process is pending, TIle Parties shall take all reasonable measures necessary to effectuate such tolling. 35.3 Alternate Procedures. At anytime during the Parties' negotiations or the non- binding mediation process, WMIF may request the County Manager to consider the disputed issue. WMlF's written request shall be delivered to the Purchasing Director and it shall describe WM1F's proposed solution for resolving the dispute. The Purchasing Director and the COlmty Manager may request, and WMIF shall timely provide, any additional information that is reasonably necessary to evaluate the disputed issue and WM1F's propossl. The County Manager shall fully and fau.'ly consider WMIF's proposal within sixty (60) days after WMIF provides all of the information reasonably requested by the Purchasing Director and the County Manager. Upon WMIF's request, the County Manager shall meet with WM1F and discuss its proposal. If the County Manager rejects WMIF's proposal in whole or ill pali, WMlF may submit a writtcn request to the County Manager for au opportunity to present its proposed solution to the Board. Thereafter, WMIF shall be allowcd to prcscut its proposal to the Board at a duly noticed public meeting. The meeting shall be conducted within sixty (60) days after the County Manager rejects WMIF's proposs!. The Board may accept or reject WMIF's proposal, or take other action that the Board deems appropriate, based on the criteria and requirements contained in this 40 Agenda Item No.1 OL December 16. 2008 Page 50 of 69 Agreement. If the Board rejects WMIF's proposal ill whole or in pali, WMIF's sole remedy shall be to pursue litigation pursuant to Section 35.4, below. 35.4 Litigation 35.4.1 Before a Pal1y initiates a lawsuit or legal proceeding concerning a Claim, dispute, or controversy arising Dut of or related to this Agreement, the Pm1y shall attempt to resolve such Claim, dispute, or controversy by using the procedUl'es set fmih in Section 35.2 or Section 35.3 herein. However, either P0l1y may seek interim relief in court if such action is necessary to preserve the Pal1y'S rights here\lllder or protect its property during the dispute 1"Cso1ution process. In addition, if either Pal1y terminates this Agreement for cause, the Telminating Party shall have the right, in its sole discretion, to proceed directly with litigation of any Claims or disputes relating to the tennination for cause, and such litigation may include other Claims and disputes unrelated to the telmination, and the Tcrminating Party shall not be required to submit such Claims or disputes to mediation. 35.4.2 The Parties agree that any Claim tiled in state or federal COU1t concerning this Agreement shall be heard by a judge, sitting without ajury. 35.4.3 THE COUNTY AND WMIF HEREBY KNOWINGLY, VOLUNTARlLY, AND PERMANENTLY WAIVE ANY !UGHT THEY MAY HAVE TO A JURY TIDAL CONCERNING THE PERFORMANCE, INTERPRETATION, APPLICATION, OR ENFORCEMENT OF THIS AGREEMENT. 35.4.4 In any litigation concerning this Agreement, the prevailing PlU1y shall recover its costs and reasonable attorneys' fees from the non-prevailing Party, including the fees and costs incurred in any trial, appeal, and mediation, if any, conccrning the issues in dispute, Section 36: Pavments Withheld }Irom WMIF 36.1 Grounds For Withho1din2 Payments. In addition to the remedies provided elsewhere in this Agreement, the County may withhold palt or all of any payment otherwise due to WMIF if the County Manager concludes that WMIF's actions or inactions have resulted in the following: (a) Unsatisfactory work not caused by conditions beyond WMIF's control; (b) Defective work that has not been cOlrected; (c) WMIF's failure to cany out appropriate instructions or ordcrs of the Project Manager; (d) Failure of WM1F to provide schedules, data, or repolts requested by the County; (e) Unsafe working conditions allowed to persist by WMIF; 01' (I) Failure of WMIF to make payments to any subeontractor for materials or labor, which I'csults in a Claim against the COlmly. 36.2 Procedure For Withholding Pavments. The County Manager shall not exercise the County's right to withhold payments under this section unless the County Manager concludes 41 Agenda Item NO.1 OL December 16, 2008 Page 51 of 69 that such action is necessary in light of WMIF' s problems or fsilure of perfOlmance. The COllnty Manager's right to withhold payments is limited to sllch amounts as are reasonable and appropriate under thc circumstances. Before thc County Manager exercises the County's rights \mder this Section 36, the County Manager shall provide WMIP wlth written notice of the problems to be addressed and the County Manager shall give WMIF at lesst thil1y (30) days to cure such problems. If the problems are cOlTected within the Cure Period, 110 payments shall be withheld. If the problems are not corrected until after the County has withheld payment, the County shall pay WMIF the amount withheld, but the County shall not be liable to WMIF for any interest Dn any delayed payment. Section 37: Onerations Durin!! Disnute If a dispute arises between the County, WMIF, WMRE, or any other Person concerning WMIF's performance, rights, or compensation under this Agreement, WMIF shall continue to pcrform its duties in strict complilUlce with the requirements of this Agreement, regardless ofthe pending dispute. Section 38: Liauidated Damal!es 38,1 Liouidated Damal!es. The County and WMIF scknow1edge and agree that it is difficult or impossible to accurately determine the amount of damages that would or might be incurred by the County due to those failures or circumstances described in this Section 38 and for which WMIF would otherwise be liable. Accordingly, WMIF and the County have negotiated the terms and amounts of the liquidated damages set f0l1h herein, and the Palties agree that the liquidated damages are reasDnab1e under the circumstances. WMIF and the County also have consulted with theu' legal counsel and confirmed that these liquidated damages are reasonable and sppropriate. Therefore, the following administrative assessments shall constitute liquidated damages, not penalties, for WM1F's breach of this Agreement. 38.2 Procedure For Assessinll LiQuidated Damages. (a) The Project Manager shall conduct sn appropriate investigation and discuss the re1evsnt facts with WM1F before the Project Manager decides to assess liquidated damages. The County shall not assess and WMIF shall not be required to pay liquidated damages in those cases where the delay or failure in WMIF's perfOlmance was (i) excused in advance by thc Project Manager or (ii) due to unforeseeable csuses that were beyond WMIF's reasonable control, and without any fault or negligence Df WMIF. The Project Manager also may waive liquidated damages in any other situation where the Project Manager concludes, in the Project Manager's sole discretion, that WMIF has demonstrated good cause for relief. (b) Prior to assessing liquidated damages, the Project Manager shall provide written notice to WMIF, indicating the County's intent 10 assess liquidated damages and the basis for the County's position. (c) After receiving the Project Manager's letter, WMIF shall have ten (10) Business Days to file a written let1er of protest with the Project Manager. 42 Agenda Item No.1 OL December 16, 2008 Page 52 of 69 (d) If a protest is timely filed, the matter shall be referred to the Purchasing DirectOl' for resolution. The Purchasing Director shall review the issues in a timely manner and then provide a written decision to WMIF. If WMIF does not agrce with the Purchasing Director's decision, WMIF may file a request for non-binding mediation. WMIF must file its request within five (5) Business Days after receiving the Purchasing Director's written decision or else WMIP's right to contest the PurchllSing Director's decision shall be waived. (e) If a protest is not timely filed by WM1F, or the Purchasing Director concludes that liquidated damages should be assessed and WMIF does not file a timely request for non-binding mcdiation, or the Pat1ies agree to the amount of the liquidated damages, then WMIF shall pay the liquidated damages to the County within twenty (20) days after the deadline for WMIF to take action. 1fWMIF fails to timely pay the liquidated damages, the County, at its option, may deduct the liquidated damages from the County's next payment to WM1P under the LOA. 38.3 Grounds For Assessim! Liquidated Damalles. During the TelID, the County may assess liquidated damages under the following circumstances: (8) .Failure to comply with the provisions in thc Operations Manual that affect envirorunental compliance within five (5) Business Days after receiving written notice from the Project Manager conceming the deficiency in WMIP's activities, shall result in the imposition of an assessment of two hundred fifty dollars ($250) per calendar day, uruess such failures are othcrwise addressed in this Section 38.3. (b) Failure to comply with the plOvisions in the Operations Manual within two (2) Business Days after receiving written notice from the Project Manager that WMIF's failure to comply is reasonsb1y likely to cause Objectionable Odors in off-Site areas, shall result in the imposition of an assessment of one thousand dollsrs ($1,000) per calendar day. (c) Failure to prevent Objectionable Odors in off-Site areas, within twenty- four (24) hours after receiving written notice from the Projcct Manager that V,'MIP's activities on the Premises are causing such odors, shall result in the imposition of an assessment of two thousand dollars ($2,000) pcr calendar day. (d) Failure to control stonnwaler, Lcachate, or Condcnsatc on thc Pr'emises in compliance with the provisions of the Operations Manual affecting environmcntal compliance within two (2) Business Days after receiving wrillen notice of the deficiency fl"Om the Project Manager, shall result in the imposition of an assessment of five hundred dollars ($500) per calendar dsy. (e) Failure to maintain or provide documents or Records in the manner required herein (e.g., see Section 15), within five (5) Business Days after receiving written notice of the deficiency fl"Om the Projcct Manager, shall result in the imposition of an assessment of one hundred dollars ($100) per Business Day. 43 Agenda Item No.1 OL December 16, 2008 Page 53 of 69 (f) Failure to timely file any repOlt or document required he.rein (e.g., see Sections 15.5 and 15.6), within five (5) Busincss Days after receiving written notice of the deficiency from the Project Manager, shall result in Ihe imposition of a one hundred dollar ($100) assessment for each Business Day that each report or document is late. (g) Failure to respond 10 the Project Manager by 5:00 p.m. on the first Business Day following a telephone call that is made by the Director in compliance with the Parties' communications plan (see Section 4.22) shall result in the imposition of an assessment of fifty dollal'S ($50) per event. (h) Failure to clean up Solid Waste, liquids, or materials that are spilled on the Premises by WMIF, within two (2) Business Days after receiving written notification by the Project Manager, shall result in the imposition of a one hundred dollar ($100) assessment per event. (i) Failure to provide the Records required in Section 15, above, concerning the amount ofLFG used by the Facility, the amount of the Electricity sales, or the amount of the revenues and other financial bencfits from New Tax Credits or Emissions Credits, within five (5) Business Days after receiving the Project Manager's request to do so, shall rcsult in the imposition of an assessment offive hundred dollars ($500) for each Business Day thereafter. (j) Failure to accurately report the amount of money due and owing to the County for the sale of LFG, the sale of Electricity, or the sale or use of New Tax. Credits or Emissions Credits, when the failure is due to an intentional, knowing, or fraudulent misrepresentation by WM1F about such matters, shall result in the imposition of an assessment equal to two (2) times the amount that would have been paid to the County, but for WMIF's failure to accurately report the relevant inf01mation. 38.4 Withho1dinl! Funds In Lieu Of LiQuidated Damal!es. If a COUlt of competent jurisdiction determines that the County cannot lawfully assess and collect liquidated damages in the manner provided in this Agreement, the Parties agree that the County may withhold payments to WMIF under the LOA, subject to the same conditions and limitations contained in this Section 38 for determining whether and the extent to which the County may collect liquidated damages. If the County withholds payment of any funds, the County may spend or otherwise use such funds in sccordanee with its normal practices. If WMIF subsequently complies with the applicable requirements of this Agreement, the County shall pay the withheld amO\lIlts to \VM1F, without interest. The repayment of such funds shall be included in the County's budget and shall be repaid in the County's fiscal year following the year in which the funds were withheld. Section 39: Venue For Lit/eation This Agreement shall be deemed to have been made and executed in Collier County, Florida. The Parties acknowledge and agree that with respect to any action, suit, or other proceeding (a "proceeding"), to enforce, intelpl'et, or apply the provisions of this Agreement, esch Party: (a) itrevocnbly submits to the exclusive jurisdiction of the statc and federal courts in 44 Agenda Item NO.1 OL December 16. 2008 Page 54 of 69 and for Collier County, Florida; (b) waives any objection which it may hsve at any time to the laying .of venue of any proceeding brought in any such court; (c) waives any claim that such proceeding has been brought in an inconvenient famm; and (d) waives the right to object that such caurt does not have jurisdictian over such Party, Sectlan 40: Governhu! Law The laws .of the State of Florida shall govern the rights, obligations, duties, and liabilities .of the Parties ta this Agrccmcnt and shall govern the interpretatian and enforcement .of this Agreement. Section 41: Indepcndent Conlt'actol' 41.1 When perfOlming the activities required by this Agreement and the LOA, WMIF will be acting in the capacity .of an independent contractor snd not as an agent, employee, palincr, joint venturer or assaciate of the County, Nothing in this Agreement or the LOA shall be construed otherwise, 41.2 WMIF shall be solely responsible for the means, methads, and procedures used by WMIF to perfOlID its duties under this Agreement and the LOA, 4 L3 Neither WMIF nor any of its emplo)'ees, officers, agents or subcantractors shall represent, act, purport tD act, or be deemed ta be the agent, representative, employee, .or SelYllllt of the Caunty, WMIF shall have na autharity ta bind the Caunty ta any agreement or contract. 41.4 No Person pe1fOlming any work or scrvlccs for WMIF under this Agreement .or the LOA shall be entitled to any benefits available or grantcd ta emplayees .of the County. Section 42: Assil!llment And Transfer Of Al!rcemcnt 42,1 Assianment Of Aarccment, 42,1.1 No assignment of this Agreement .or !lilY right or responsibility occurring under this Agreement shall be made in whole or in psrt by WMIF without the express written cansent of the County Manager, The Caunty Manager shall have the light to approve or deny, with or without cause, any praposed or actual assignmcnt by WMIF. Any assignment of this Agreement made by WMIF without the express written consent .of the County Manager shall be null and vDid, 42.1.2 In the event that the Connty Manager's consent to any propased assignment is denied, WMIF shall continue to provide all of the services required herein for the remsinder ofthe Tenn, If any assignment is approved by the County Manager, the assignee shall fully assume all of the liabilities afWMIF, 45 Agenda Item No.1 OL December 16, 2008 Page 55 of 69 42.1.3 The requirements of this Section 42.1 shall include, but not be limited to cases where WMIF hires a subcontractor to undertake all or substantially all of WMIF's obligations under this Agreement. 42.1.4 Notwithstanding anything else contained herein, WMIF may hire WMRE to undertake WMIF'8 re8ponsibilities under this Agreement, provided that WMIF 8hall continue to be responsible Rnd liable for complying with the requirements contained herein. 42,2 Transfer Of A~reement. The transfer of this Agreement, by transfer of ownership, transfer of corporate shsres, or any other means to effect a change in the ownership structUl'e of WMIP, shall be cffective only after approval by tlle County Manager. Any transaction that results in WMIF or its assets being purchased by or merged with another Person shall constitute a transfer of this Agreement, which is subject to the County's approval. An spplication to transfer this Agreement shall he submitted jointly by the proposed transferor and trunsferee. The proposed transferee shall verify in writing that (a) it will comply with all of the l'equa'ements in this Agreement and (b) it has the financial resources, expertise, equipment and other capabilities neccssary to do so. The County Manager may grant or deny the application for transfer, 01' may grant the application subject to conditions. The provisions of this paragraph do not apply if WMIF merges with its parent corporation, a subsidiary, or an affiliate. 42.3 Successors And Assil!lls. The tenl1S and conditions of this Agrcement shall be binding upon, and shall inure to the benefit of, the successors and permitted assigns of the Parties. Section 43: Notices 43,1 Method Of Providing Notice. Except as otherwise expressly provided herein, whenever this Agreement requires that a notice be given by one Party to the other Party or to any third pal1y, or a P811y's action requires the approval 01' consent of the other Party, then: (a) each sueh notice shall be given in writing and esch such consent or approval shall be provided in writing; (b) no notice shall be effective unless it is provided in \\1'iting and otherwise satisfies the requirements specified herein for such notice; and (c) the Party from whom approval 01' consent is sought shall not be bound by any consent or approval uuie ss and only to the extent such consent or approval is in writing. Any such notice, consent or approval that fails to conform to the foregoing requirements shall be null and void and have no force and effect. 43.2 Address For Notice. All notices shall be addressed to a Party at the address set fOl1h below or at such other address as such Party may have substituted therefOl'e by notice to the other Pany in accordance with this Section 43.2. All notices shall be either (i) delivered personally, (ii) sent by facsimile communication, (Hi) sent by nationally-recognized overnight courier or delivery service or (iv) sent by registered mail, return receipt requested. However, any notice, demand, request or other communication made or delivered in connection with an alleged breach or default hereunder shall only be delivered personally or by a nationally-recognized overnight courier or delivery service. Electronic mail shall not satisfy the requirements in this Agreement for providing notice. 46 Agenda Item NO.1 OL December 16. 2008 Page 56 of 69 As to County: Stephen Y. Camell Purchasing and General Services Director Collier Connty Purchasing Building G 3301 E. Tamiami Trail Naples, FL 34112 Telephone: 239-252-8371 Facsimile: 239-732-0844 With a copy to: County Attomey Collier County Administration Building F, 8th Floor 3301 E, Tamiami Trail Naples, FL 34112 Telephone: 239-252-8400 Facsimile: 239-252-6300 As to Contractor: Tim Hawkins, Vice President Waste Msnagement Inc. of Florida 2700 NW 48'h St. Pompano Beach, FL 33073 Telephone: 954-984-2035 Facsimile: 954-984.2057 With a copy to: Ron Kaplan, Assoc. Gencral Counsel- South Waste Management Inc. of Florida 2700 NW 48th Street Pompano Beach, FL 33073 Telephone: 954-984-2021 Facsimile: 954-984-2057 And Paul Pabor , Vice President Waste Management Renewable Energy 1001 FSrulln Street, Suite 4000 Houston, TX 77002 Telephone: 713-328-7345 Facsimile: 713-287-2423 Bath Parties reserve the right to designate a different representative or representatives in the future, or ta change the addressees) for notices, by providing written notice to the other Party of such change. 43.3 Receint And Effectiveness Of Notice. All notices, requests, demands, approvals and other communications which are required to be given, or may be given, from one Party to the other Party under this Agreement shall be deemed to have been duly given, received and effective: (a) if personally delivered, on the date of delivery; (b) in the case of a notice sent by facsimile communication, on the day of actual receipt if a Business Day snd received prior to 4:30 p.m. at thc place of rcccipt, Dr if not sa received, on the next following Business Day in the 47 Agenda Item No.1 OL December 16, 2008 Page 57 of 69 place of receipt, if the sender's facsimile machine has received the correcl answerback of the addressee and confirmation of unintemlPted transmission by a transmission report, or if the recipient confirms by telephone to sender that the facsimile message was received; (c) in the case of a notice sent by mail, when actually received by the addressee; and (d) the Business Day immediately following the day the notice is sent, if the notice is sent for next day delivery to a domestic address by a nationallY-l'ecognized overnight courier or delivery service. The addressee, when requested by the sender, shall promptly pmvide the sender with facsimile acknowledgment of receipt, but the delay or failure to give or receive any such acknowledgment will not affcct the validity or effectiveness of the notice, communication, consent or approval. Section 44. Taxes 44, I General. WMIF shall pay all Taxes that may be levied upDn or assessed against: this lease of the Premises; the Facility; the Premises; or any other property, including personal prope11y that WM1F owns 01' uses in connection with this Agreement. Each Patty shall bear all Taxes imposed on its own income. 44.2 Taxes On The Purchase Of LPG. 44.2.1 As between WMIF and the County, WM1F is responsible for the payment of all Taxes and assessments (other than the County's income Taxes) imposed upon WMIF with respect to the purchase of LFG from the County. 44.2.2 The County shall clearly identify as a separate line item on each invoice to be sent to WMIF the amount, if any. of all sales Tsxes and other assessments owed by WM1F and required to be collected by the County. WMIF shall psy or cause to be paid all sales Taxes or assessments identified on each invoice directly to the County and the County covenants and agrees to timely remit the amount of such payment directly to the Florida Department of Revenue or any other taxingjurisdictiDn, as required by law. 44.2.3 In the event an audit conducted by the Florida Depa11ment of Revenue or other Govemmcntal Authority finds due and owing additional taxes from WM1F's purchase of LFG from the County, WM1F shall pay to the County the amounts stated in the audit; provided. however, that WMIF reserves the right to challenge the accuracy of any such sudi!. 44.2.4 Notwithstanding the other provisions in this Section 44.2, WMIF shall not be obligated to pay any Taxes that are imposed in a discriminatory malillCl' by the COImty on the Facility, the sale or purchase of the County's LPG, or WMIF's activities \lIlder this Agreement. However, the provisions of this paragraph do not apply to any Taxe5 imposed on WMIF by any other Governmental Authority. Section 45: ReDresentations And Warranties 45,1 Warranties Bv WM1F. WMIF makes the following representations and walTanties to the County, all of which are made as of the Effective Dale, but which shall survive the Effective Date: 48 Agenda Item NO.1 OL December 16. 2008 Page 58 of 69 (a) WMIF is a corporation duly Drganized, validly existing and in good standing under the laws of the State of FloIida, is qualified to do business in the State of Florida, and has the fill! power and authority to enter into the transactions contemplated hereundet., and to execute, deliver and perfoinl its obligations under this Agreement; (b) WMIF's cxccution and delivery of, and the consummation of the transactions contemplated by, this Agreement have been duly authorized by all necessary action of WMIF. ThIs Agrcement constitutes a legal, valid and binding obligation of WMIF and is cnforceable agsinst it in accordance wi th its respectIve terms; (c) To WMIF's knowledge, there are no actions, suits, Claims, complaints, investigations or legal or administrative or arbitration proceedings pending or threatened, which could reasonably be expected to have a msteria1 adverse effect on WMIF or its ability to perform its obligations undcr this Agrccment. Thcrc is no outstsnding order, writ, injunction, decree, judgment 01' award by any court, arbitration panel or Govcmmental Authority agsinst or affecting WMIF or its Affiliates which could reasonably be expected to have a material adverse effect on WMIF 01' its ability to perform its obligations under this Agreement; (d) Thc cxccution or delivery of this Agreement, the perfommnce by WMIF of its obligations hereunder, or the fulfillment of the terms and conditions hereof shsH not: (i) conflict with 0[' violate any provision of WMIF's organizational documents; (Ii) conflict with, viD1ate or result in a breach of, any Applicsble Law in effcct as of the Effective Date; or (Hi) conflict with, violate or result in a breach of, or constitute a default under 01' result in the imposition or creation of, any security under any agreement or instrument to which WMIF is a party or by which it or any of its properties or assets are bound; and (e) WMIF has all of the patents, licenses, and approvals needed to use the technologies and intellectual property requircd for the constl1lction and operation of the Facility in compliance with this Agreement. 45.2 Wan'anties Bv Countv. The County makes the following rcpresentations and walTanties to WMIF, all of which are made as of the Effective Date, but which shall survive the Effective Date: (a) The County is a duly organized and validly existing political subdivision of the State of Florida, The County has full power and authority to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder. (b) The County is not in default under any provisions of the laws or administrative regulations of the State of Florida which are materisl to the performance of its obligations under this Agreement. (c) The authorization, execution and delivery of this Agreement and the compliance by the County with the p1"Ovisions hereof will not contlict with or constitute a material breach of, or default under, any existing law, court or administrstive regulation, decree, 49 Agenda Item NO.1 OL December 16, 2008 Page 59 of 69 order or any ordinance, resolution, agreement, lease, mortgage, trust indenture or other instrument to which the County is subject or by which it is bound. (d) There is no action, suit, proceeding or investigation at law or in equity before or by any COUlt, public board 01' body pending 01', to the best knowledge of the County, threatened against or affecting the County, wherein an unfavorable decision, ruling 01' finding would materially advel'se1y affect the transactions contemplated hereby, or which, in Bny way, would materially adversely affect this Agreement 01' any agreement or instlUment to which the County is a party snd which is used or contemplated for use in the consummation of the transactions contemplated hereby. Section 46: Miscellaneous 46.1 Modificatiou Of Agreement. This Agreement shall not be amended, changed or modified except by a subsequent agreement in writing which indicates that such writing is intended to amend the terms of this Agreement and is signed by duly authorized officers of both Parties. Any modificatiDn to this Agreement must comply with the County's purchasing pDlicies and administrative procedures in effect at the time such modification is executed. The Parties agree that this Agreement shall not be amended in any manner by any course of dealing between the Parties. 46.2 Waiver Of Rights. No delay or forbearance by a Party in exercising any right, power Dr remedy aeclUing to such Party upon the occmrence of any breach or default by any other Party hereto under this Agreement shall impair any such right, power or remedy of such Party, nor shall it be constmed to be a waiver of any sueh breach or default, or an acquiescence therein, or of any similar breach or default thereafter OCCUlTing, nor shall any waiver of any single breach or default be deemed a waiver of any other brcach or default theretofore or thereafter occurring. Any waiver, petmit, consent or approval Df any kind or character on the palt of any Palty hereto of any such breach or default under this Agreement, or any waiver on the part of any Party hereto of any provision or condition of this Agreement, must be in writing signed by the Party to be bound by such waiver and shall be effective only tD the extent specifically set fDrth in such writing. 46.3 WMIF will use its best efforts to fully cooperate with the County to locate grant opportunities and assist with the preparation of application(s) pursuing same, including but not limited to providing the County will relevant information. 46.4 Decision-Makina By The Parties, Except where this Agreement expressly provides for a different standard, whenever this Agreement pl'Ovides for a determination, decision, permission, consent or approval of a Party, the Party shall make sllch determination, decision, grant or withholding of permission, consent or approval in a commercially reasonable manner and without unreasonable delay. Any denial of an approval, pelmission, decision, detelmination or consent required to be made in a commercially reasonable manner shall include in reasonable detail the reason for the denial. 50 Agenda Item No.1 OL December 16, 2008 Page 60 of 69 46.5 No Third Pal1v Beneficiary. This Agreement is for the sole and exclusive bcnefit of the Parlies hcreto and shall not create a contractual relationship with, or cause of action in favor of, any third party. 46.6 Severability And Pat1ial Invaliditv of Alueement. 11le provisions contained in this Agreement shall not be const1Ued to require the County or WMIF to take sny action that is contrary to any Applicable Law, Should any provisiDll, paragraph, sentence, word oj' phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal oj' otherwise unenforceable under the laws of the State of Florida or any Applicable Law, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary to conform with such laws, or if not modifisb1e, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. This Agreement shall be constnred as if such invalid, illegal, void or unenforceable provision had nevcr been contained herein. To the extent permitted by law, the PS11ies hereby waive any provision of law that renders any provision hereof prohibited or unenforceable in llny respect. If this waiver is ineffective and palt of this Agreemcnt is declared invalid, the P811ies shall promptly negotiate in good faith to eliminate the invalidity and restore this Agreement to its original intent and effect, to the extent possible. 46.7 Costs. Each of the Parties shall pay its own costs and expenses of and incidental to the negotiation, preparation llnd completion of this Agreement and shall not have any right to claim or seek reimbursemcnt of such costs and expenses from the other Palty. 46.8 Spccific PerfOlmance. Notwithstanding the dispute resolution proccdurcs set forth in Section 35, and cxcept ss the context specifically otherwise requires, if a Pal1y breaches or threatens to breach any provision of this Agreement, the other Party shall have the right to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach 01' threatened breach will cause irreparable injury to the other Palty and that money damages will not provide adequate remcdy, All rights under tllis Scction 46.8 shall be in addition to, and not in lieu of, any other rights and remedies availab1c to cithm' Pal1y at law or in equity, all of which shall be independent of the other and severally euforceable. 46.9 Time Is Of The Esscnce. Except as the context specifically otherwise requires, time is of the e5sence with respect to all dates and time periods set fOl1h in this Agreement. 46. \0 Exhibits Incorporated Into Al!reement. Exhibits "A" through "E" tD this Agreement are incorporated by reference into and shall f0l111 part of this Agrccmcnt. These exhibits shall have full force and effect as though they were expressly set out in the body of this Agreement. However, in the event of any conflict or inconsistency between the tenns, conditions and provisions ofthis Agreement (excluding the exhibits) and the exhibits hereto, the terms of this Agreement (excluding the exhibits) shall prevail and govem. 46.11 Counterparts. This Agreement shall not be cxecuted in counterparts (including facsimile copies). 51 Agenda Item NO.1 OL December 16, 2008 Page 61 of 69 46.12 Entire Aareement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter addressed herein. This Agreement shall not be considered modified, altered, changed or amended in any respect unless the Agreement is amended in writing and the amendment is signed by WMIF and the Director. This Agreement inCOlJlOrates and includes all prior negotiations, cOl,.espondence, cDnversations, agreements and understandings applicable to the matters contained in this Agreement. The PlUties agrec that there are no commitments, agreements or understandings concerning the subject matter of this Agrecment that are not contained herein. Accordingly, it is agreed that no deviation from the terms of this Agreement shall be predicsted upon any prior representations or agreements, whether oral or written. This Agreement shall supersede all prior agreements between the Parties regarding the matters addressed herein. 46.13 Headinl!s. Headings in this Agreement are for convenience of reference only and are notto be considered in any interpretation of this Agrccmcnt. 46.14 Intelllretation Of AqJ"eement. Both P81ties acknowledge that they are represented by legal cO\U1Se1 and they have had meaningful input into the terms and conditions contained in this Agreement. Therefore, any doubtful or ambiguous provisions contained herein shall not be construed against the Parly that physically prepared this Agreement. The ru1c somctimcs refel,.ed to as "FOltious Contra Proferentum" shall not be applied to the interpretation of this Agreement. 46.15 Sovereil;ln Immunity. Nothing in this Agreement shall be interpreted or construed to mean that the Co~mty wroves its common law sovereign immunity or the limits on liability set forth in Section 768.28, Florida Statutes. 46.16 Remedies Are Not Exclusive. The remedies specified in this Agreement shall supplement, and not be in lieu of, any other remedies provided at law or in equity. The payment of any liquidated damages by WMIF shall not constitute a defense for WMIF, nor an election of remedies by the County, nor serve as the basis for a claim of estoppel against the County, nor prevent the County from terminating this Agreement. The County's decision to refrain from assessing liquidated damages, or suspending or terminating this Agreement, or seeking any other relief from any failure in WM1F's performance, shall not constitute a waiver of the County's right to pursue any other remedy or a waiver ofits right to pursue a remedy for any future failure by WMIF. No remedy confen-ed by this Agreement is intended to be exclusive of any other l-emedy. Each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hel-eafter existing at law Dr in equity, by statute or otherwise. No single or partial exercise by any Party of any right, power, or remedy hereunder shall preclude any other or further exercise thereof. Section 47: Enual Opportunity Emplovment And Immil!ration Laws 47.1 Eoua1 Opportunity Employment. WMIF agrees that it shall not discriminate against any employee or applicant for employment for work under this Agreement because of handicap, race, color, religion, sex, age, or national origin and shall take affinnative steps to ellSlIl'e that applicants are employed and employees are treated during employment by WMIF 52 Agenda Item NO.1 OL December 16, 2008 Page 62 of 69 without regard to race, color, religion, scx, age or national origin. This provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeships. WM1F agrees to furnish the County with a copy of its Affirmative Action Policy, upon request. 47.2 Immilll'ation Laws. By cxecuting and entering into this Agreement, WMIF is formally acknowledging, without exception or stipulation, that it is fully responsible for complying with the provisions of the Immigration Refonn and Control Act of] 986, located at 8 U.S.C, 1324, et seq., and regulations relating thereto, as either may be amended. Section 48: ComJlllance With Labol' Laws WMlF shall comply with all Applicable Laws concerning the protection and rights of employees, including, but not limited to, the Occupational Ssfety and Health Act and all implementing regulations, minimum wage laws, the Americans with Disabilities Act, and the Fair Labor Standards Act. A Person employed by a Patty shall have no right or claim to any pension, workers' compensation, unemployment compensation, civil selvice or other employee rights or privileges granted to the ot1icers and employees of the other Party. Each Palty shall have the sole responsibility for paying any wages and providing any employment benefits to such Person. Seclion 49: Fair Dealin!! Each Party declares and wanllnts that it enters into this Agreement without reliance on 01' engaging in any collusion, bribery or fhllld, that all of the Patty's representations in this Agreemcnt are made fairly and in good faith, and that no Board member, County officer, or County employee, directly or indirectly owns more than I % of the total assets or capital stock of WMIF, nor will any such Person directly Qr indirectly benefit by more than 1 % from the profits or emoluments of this Agreement, nor has WMIF provided any gift to any such Person or their family. WMIF warrants that it has not employed or retained sny company or Person, other than a bona fide employee working solely for WMIF, to solicit 01' secure this Agreement, and WM1F has not paid or agrccd to pay any Person, company, corporation, individual or firm, other than a bona fide employee working solely for WM1F, any fee, commission, percentage, gift 01' any other compensation contingent upon or resulting ii-om the award or making of this Agreement. Further, WMIF declares and warrants that WMIF is not subject to the restrictions in Sections 287.133 and 287.] 34, Florida Statutes, for a public entity crime. 53 Agenda Item NO.1 OL December 16, 2008 Page 63 of 69 IN WITh'ESS WHEREOF, the Board of County Conunissioners of Collier Couuty, Florida, and Waste Management Inc. of Florida have made and executed this Agreement, as attested to by the signature of their duly authorized officers or representatives and their official seals affixed hereon, the day and year first above written. Attest: DWIGHT E. BROCK BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By:___ Dcputy Clerk By: _ TOM HENNING, CHAIRMAN _ day of ,2008 Approved as to form and legal sufficiency: By: _~CU~ CLf ~~::,_ .Ien~1?er Bclpcdio. Esq Assistant County Attorney __ day of ___' 2008 S4 Agenda Item NO.1 OL December 16, 2008 Page 64 of 69 WITNESSES: WASTEMANAOEMENTINC. , ~ -L1f' OF FLORIDA, a Florida corporation By:71~~BY:~ Signature Signature B",IJ. ~. 6-0111,1((1,;,., ~~ ~t\ ?1.4.~ ~~M~~ Print Name and Title I Print Name and Title ~ day of "tee.. . 2008 ~ day of \.oM \l~ .2008 ~~n~;'iV> ~ OSAL,';U.4 V~a:.. Print Name and Title '13 day of ~ . 2008 STATE OF FLORIDA ) 1lJ?M~ ) SS: COUNTY OF QOLLIffit ) BEFORE ME, an offi, leer duly authorized by law to adminis~l oaths and take acknowledgments, personallyappeare4lJmlffi.JY1U.IAltJKJN5 as C?I<i~'51~t.sT of Waste Management Inc. of Florida, an organization authorized to do business in the State of Florida, and acknowledged executing the foregoing Agreement as the proper offiela1 of Waste Management Ino, of Florida for the use and purposes mentioned in It and affixed the official seal of the corporation, and that the Instrument Is the act and deed of that corporation. He/she is personally known to me or has produced as Identification. My Commission Expires: IN WITNESS OF THE ~OOINO, I have set my hand and official seal at in the State and "".'........00 <hi, ~ d.,~... OTARYPUBLIC ~ ,f'J.~!~ 8US.'Jl ClIllI8TAJOIIIlOO/l ~ 1IY00IINI$tllHlD041lO4i · . EXl'IR!8:JarRIIJy~.2010 ~.. _lINloIltllloloy_' ~"" 55 Agenda Item NO.1 OL December 16, 2008 Page 65 of 69 COLLIER COUNTY GOVERNMENT Community Development and Environmental Services Division Department of Zoning and Land Development Review 2800 North Horseshoe Drive' Naples, Florida 34104 December 8, 2008 Mr. Daniel Rodriguez, Director Collier County Department of Solid Waste 3301 Tamiami Trail East Building "H" Naples, Florida 34112 ~ Re: Zoning Verification Letter (ZLTR-07-AR-14003) - Requesting verification that a proposed Gas-to-Energy facility is an accessory use to the Collier County Landfill pursuant to Section 4.03.703 (25) Florida Statutes which define the processing of recovered materials or energy derived from solid waste. Dear Mr. Rodriguez: This letter is in response to your application that was found sufficient on December 9, 2008 requesting a zoning verification letter conftrming that a proposed gas-to-energy facility is a permitted use pursuant Section 4.03.703 (25) Florida Statutes which permits the processing of recovered materials or energy from solid waste. In your letter and application you define the proposed landfill gas to energy (LFGE) facility as the collecting and processing of the methane gas that is naturally produced in a landfill, which would be a redirection of the current burning ofthe methane gas via a flair tower flame process. The capture of this gas byproduct of the landfill can be turned into an energy source (electricity), instead of burning and releasing the gas into the atmosphere. ~ The subject site is currently zoned Rural Agricultural and contains an existing Landfill operation. On October 23, 1990, the Board of Zoning Appeals (BZA) appro~ed Petition PU- 90-17 (Resolution Number 90-514) for a Provisional Use that allowed for a resource recovery facility to work in conjunction with the existing Landfill operation. c; o (~~ e r c; o " , y Phone (239) 252-2400 Fa" (239) 252-6968 or (239) 252-2913 ww\v.colliergov.nct Mr. Daniel Rodriguez December 8, 2008 Page 2 Agenda .'tem No. 10L December 16, 2008 Page 66 of 69 In your application, you asked whether or not an LFGE use is an accessory use to a Landfill. While the term Landfill is not defmed in the LDC, it is generally defmed as the disposal of garbage or rubbish by burying it under a shallow layer of ground. Furthermore, the LDC does defme an accessory use or structure as follows: "A use or structure located on the same lot or parcel and incidental and subordinate to the principal use or structure". In comparison, Chapters 62-70 I through 62-722, of the Florida Administrative Code (F AC) defmes a landfill as a solid waste disposal facility, which is an area of land or an excavation site where waste materials are or have been placed for disposal, for which a permit (or other than a general permit) is required by Section 403.707, F.S. In addition, "Materials Recovery" (as defined in the Florida Statutes) means any process by which one or more of the various components in solid waste is separated and concentrated for reuse. Furthermore, a "Materials Recovery Facility" means a solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for use as a fuel or soil amendment, or any combination of such materials . A "Recovered Materials Processing Facility" (as part of a landfill) permits the storage, processing, resale, or reuse of recovered materials or resource recovery. A "Resource Recovery Facility" includes the processing of recovered materials or ener!?)' from solid waste, excluding those materials or solid waste under control of the Nuclear Regulatory . Commission. Since a landfill is defined as a solid waste disposal facility which includes the disposal of certain specified sludge, garbage, rubbish, refuse, special waste, or other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations, I am of the opinion that the recovered methane gas that is naturally produced in a landfill is deemed to be a recovered material that can be used as a fuel. Thus, the extraction and disposal of methane gas through its use as a fuel is in and of itself considered to be "disposal" under Florida Statutes, and is an appropriate part of a lawfully licensed landfill operation. The resale of the energy (electricity) which is produced from the recovered methane gas is deemed to be a "recovered material" as noted above. Furthermore, you note in your request that the transmission lines that serve the LFGE project will have no greater impact as any other electrical lines that are allowed as a permitted Essential Service subject to the requirements of Section 2.01.03 Essential Services of the Collier County Land Development Code. Based upon the information presented in your application, it is my determination that the proposed LFGE facility can be deemed an accessory use to the permitted Landfill operation and the energy (electricity) generated is subject to the requirements of Section 2.01.03 Essential Services of the LDC. . . . . Mr. Daniel Rodriguez December 8, 2008 Page 3 Agenda Item No. 10L December 16, 2008 Page 67 of 69 Please be advised that this verification letter is based on the Collier County Land Development Code and/or Growth Management Plan in effect at the time of this date. It is possible that subsequent amendment(s) to either of these documents could affect the validity of this verification. It is also possible that development of the subject property could be affected by other issues not addressed in this letter, such as, but not limited to, concurrency related to the provision of adequate public facilities, environmental impact, and other requirements of the Collier County Land DevelopmentCoe or related ordinances. Should you require further information please do not hesitate to call me at (239) 659-5746. Sincerely, ~Yh.~ Susan Murray Istenes, AICP, Zoning Director Department of Zoning and Land Development Review cc: Jim Mudd, County Manager Leo Ochs, Assistant County Manager Joseph K. Schmitt, Administrator; CD&ES Division Raymond V. Bellows, Zoning Manager Ross Gochenaur, Planning Manager Fourth Amendment to the "LANDFILL OPERATION AGREEMENT BETWEEN COLLIER COUNTY AND WASTE MANAGEMENT INC. OF FLORIDA" Agenda Item NO.1 OL December 16, 2008 Page 68 of 69 This wnendment, dated . 2008, is the fourth amendment to the Landfill Operation Agreement ("LOA"), (to be referred to herein as the "Agreement") by and between Waste Management Inc. ofFlorids (to be referred to as "Contractor") and Collier County, Florida (to be referred to as "Owner" or "County "). Statement of Understanding RE: "LANDFILL OPERATION AGREEMENT ("LOA") BETWEEN COLLIER COUNTY AND WASTE MANAGEMENT INC. OF FLORIDA" The following change to the above referenced Agreement hss been mutually agreed to by the Contractor and the County: The additions to the existing language in the Agreement are shown herein by underlining: deletions from the Agreement are shown by skibtbroughs. 2.25 The CounlY and Contractor have executed a Landfill Gas Sales Al!l'eement and Ground Lease (dated December 16. 2008). which suoersedes and reD lac.. the ori2inal Section 2.25 of the LOA. as of December 16.2008, 2.2S O'.'meFsaip sf LaRaf.i1l Gas; Gas UtilimtieR :\ltefHsti".'sa. The C8HR~' shall e....~ all right, title and int.r-est iR gas geR.rat.d at the L8IIdfill.. Th. CeRt",eter oRd CeuRt:,' !Rll()' iR".'e.ligate from time 10 time Landfill gos ulilil!lltien oltomati':es, ineluding Ihe on'/iFenmellffil, eRgilleeHllg; ",vellue ORd esst feasibility Ihereef. If the Ceu,*:>' iRljllemelll. a nyst.m Ie Htili2e th. gas at the Lalldfills, th. CeHRt:,. eRa the CeRIfa.tor .hall jointly do'/slop the gas S)'st.m. Th. Celllrileter sllall desigll (pursuant te Ihe jeint do\"elepmeat pltlll), eoast.,."I, eperalo and mailllain suell system. II!J the CeRtffleter's eest plus Ion pel'llent (19%), f'ro'lided tllat the CeHnl)' Mall be entitled te all fe....RHe geRerated by the oale ef gas entraeled from tile LaRdfill., All other terms and conditions of the Agreement shall remain in force. IN WITNESS WHEREOF, the Contractor and the County have each, respectively, by an authorized person or agent. hereunder set their hands and seals on the date{s) indicated below. CONTRACTOR W~OfFIOrida By: Title: Dated: ~~n~~~~, \~n_o'8 A TIEST: OWNER: Dwight E. Brock, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: Tom Henning, Chairman Agenda Item No.1 OL December 16, 2008 Page 69 of 69 Approved as to form and Legal sufficiency: