Backup Documents 12/16/2008 Item #10L
101
MEMORANDUM
DATE:
December 18, 2008
TO:
Kelsey Ward, Contract Administration Manager
Purchasing Department
FROM:
Martha Vergara, Deputy Clerk
Minutes and Records Department
RE:
Contract: "Landfill Operation Agreement - Amendment #4"
Contractor: Waste Management Inc. of Florida
Enclosed please find one original contract, referenced above (Agenda Item
#10L), approved by the Board of County Commissioners on December 16, 2008.
The Minutes & Records Department has kept an original for the Board's
perrnanentrecord.
If you should have any questions, please contact me at 252-7240.
Thank you.
Enclosure (I)
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ITEM NO,:
DATE RECEIVED:
FILE NO.:
ROUTED TO:
DO NOT WRITE ABOVE THIS LINE
REQUEST FOR LEGAL SERVICES
Date:
December 17,2008
To:
Jennifer Belpedio
Assistant County Attorney
From:
Kelsey Ward.
Contract Administration Manager
252-8949
Re:
Contract Amendment #4 for Contract "Landfill Operation Agreement"
Contractor: Waste Management Inc. of Florida
BACKGROUND OF REQUEST:
This contract amendment was approved by the BCC on December 16,2008; Agenda Item
10.L.
OTHER COMMENTS:
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This is an amendment for additional services as allowed under the master contract.
Please forward to BCC for signature after approval. If there are any questions concerning
the document, please contact me. Purchasing would appreciate notitication when the
documents exit your office. Thank you. 1 ;1:.) " - , ' I (C'- (
ACTION REQUESTED:
Amendment review and approval.
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Fourth Amendment to the
"LANDFILL OPERATION AGREEMENT BETWEEN
COLLIER COUNTY AND WASTE MANAGEMENT INC. OF FLORIDA"
This amendment, dated I )./I~ ,2008, is the fuurth amendment to the Landfill Operation
Agreement ("LOA"), (to be referred to herein as the "Agreement") by and between Waste
Management Inc. of Florida (to be referred to as "Contractor") and Collier County, Florida (to be
referred to as "Owner" or ''County ").
Statement of Understanding
RE: "LANDFILL OPERA nON AGREEMENT ("LOA") BETWEEN COLLIER COUNTY
AND WASTE MANAGEMENT INC. OF FLORIDA"
The fullowing change to the above referenced Agreement has 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 llkil",!brellghs.
2.25 The County and Contractor have executed a Landfill Gas Sales Al!reement and Ground
Lease (dated December 16.2008), which suoersedes and renlaces the ori2inal Section 2.25 of the
LOA. as of December 16. 2008.
2.23 G7JRepski" sf banMill Gee; eM \Jail_tiSR :'.ltefft8ti.rles. 'a. CSlIM} sh&:ll 87JR all Fight,
tit:le ana iMef8st iR gas geRemtea at tlte utJulfills. The CSRRMef &Bft CeUR~' tRay ia-:estigate
Rem time te time landfill gas utili.tieR aJ.temaa-:es, iRehuHng the 8fnifSBBleRtal, eRgineeriRg,
levee. Me east feasihil~' dtereef. If the CeYftt:y implelReMfi a ~'fHelR t8 ytilitle 11\. gas at the
Lamifills, the CSHRty &mllhe CsMRieter shall jeiatly develsl' the gas systeM. The CSR1feeter
shall flesiga (pllFSuant te the jeiat tle-:elepRl.m ,Ian), esnstfuet, speRl!' &REI maiMaiR sueR
S~"BlS 851ft. CSlMraeter'9 eest phiS tea ,1"eRt (l9fj~), pr8':idetl.e.at the CeB~' 9kall he eBtitled
te &II "veRBe geReFBted h) 1I1e sale sf g&5 enk_sted fFem tke I..dalls.
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.
Secretary/Witness
CONTRACTOR
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Wa ement Inc. of Florida
By:
Dated:
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By: ---- \\.^---=,'v .-:
Title: ~.... ~t~.
Dated: \~"'_o'B
~ DwJght E. Brock, Cle
Attest-:" toCha 1
s I QIl at llte Olfi. .
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OWNER:
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Approved as to form and
Legal sufficiency:
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Jennifer-Belpedio, Esq.,
Assistant County Attorn
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MEMORANDUM
DATE:
December 18, 2008
TO:
Kelsey Ward, Contract Administration Manager
Purchasing Department
FROM:
Martha Vergara, Deputy Clerk
Minutes and Records Department
RE:
Contract: "Landfill Gas Sales Agreement and Ground Lease"
Contractor: Waste Management Inc. of Florida
Enclosed please find one original contract, referenced above (Agenda Item
#10L), approved by the Board of County Commissioners on December 16,2008.
The Minutes & Records Department has kept an original for the Board's
pernnanentrecord.
If you should have any questions, please contact me at 252-7240.
Thank you.
Enclosure (1)
ITEM NO.:
DATE RECEIVED:
FILE NO.:
ROUTED TO:
DO NOT WRITE ABOVE THIS LINE
REQUEST FOR LEGAL SERVICES
Date:
December 17,2008
To:
Jennifer Belpedio
Assistant County Attorney
From:
Kelsey Ward.
Contract Administration Manager
252-8949
Re:
Contract: "Landfill Gas Sales Agreement and Ground Lease"
Contractor: Waste Management Inc. of Florida
BACKGROUND OF REQUEST:
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This contract was approved by the BCC on December 16,2008; Agenda Item 10.L.
Contract review and approval.
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ACTION REQUESTED:
OTHER COMMENTS:
Please forward to BCC for signature after approval. Ifthere are any questions concerning
the document, please contact me. Purchasing would appreciate notification when the
documents exit your office. Thank you.
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Final BCC approved contract 12-16-08
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LANDFILL GAS SALES AGREEMENT AND GROUND LEASE
TABLE OF CONTENTS
Section]. Overview Of This Agreement..............................................................................2
].] Sale Of LFG And Lease Of Premises ............................................................2
].2 WMIF's Obligations And Expenses ..............................................................2
1.3 Exhibits To Agreement ..................................................................................2
].4 Amendment To LOA .....................................................................................2
Section 2. Term Of This Agreement.. ..................................... ......... ............... ............... ... ....3
2.1 Initial Term.................................................................. ............... ... ...... ...... ....3
2.2 Renewal Terms..............................................................................................3
2.3 Automatic Modifications To The Term.........................................................3
Section 3. Conditions Precedent ... ..................................... ... ............... ............ ......... ......... ...3
3.] WMIF's Right To Terminate Before Construction .......................................3
3.2 County's Right To Terminate Before Construction.......................................3
3.3 Termination Of Obligations Before Construction .........................................4
3.4 WMIF 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 Permits .........................................................4
4.4 Site Conditions And Site Investigation..........................................................5
4.5 Design And Appearance Of The Facility.......................................................5
4.6 Meetings Concerning The Construction Of The Facility ..............................5
4.7 Coordination With Other Activities On The Site ..........................................6
4.8 Coordination With Operation Of Landfill And LFG Collection System ......6
4.9 Interconnections With Other Systems ...........................................................6
4.10 Operations Manual.........................................................................................6
4.] ] Annual Maintenance Schedules For Facility .................................................7
4. ] 2 Disposal of Condensate............... .............................................. .....................8
4.]3 WM]F's Personnel, Equipment, And Supervision ........................................8
4.]4 WMIF's Site Superintendent .........................................................................9
4.] 5 WMIF's Facility Operator ............................................................................. 9
4. ] 6 WMIF's Subcontractors ................................................................................. 9
4.] 7 Educational Programs .................................................................................... 9
4.] 8 Storage Of Materials And Equipment............................................................9
4.19 County's Right To Inspect Facility ................................................................] 0
4.20 Safety And Security On Site ..........................................................................] 0
4.21 Protection Of Facility And Premises .............................................................11
4.22 Emergency Communications System ............................................................I]
4.23 Duty To Cooperate.........................................................................................11
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Section 5: Notices For Start Of Construction And Operation ..............................................11
5.1 Commencement Of Construction ..................................................................11
5.2 Startup And Shakedown ................................................................................11
5.3 Commercial Operation Date ..........................................................................11
Section 6: Duty To Inform County .......................................................................................12
Section 7. Title To LFG And Mineral Rights.......................................................................12
7.1 Title To LFG .................................................................................................12
7.2 No Mineral Rights Or Production Rights ......................................................12
Section 8. Sale of LFG ..........................................................................................................13
8.1 Sale OfLFG To WMIF..................................................................................13
8.2 Flared Gas .. ..... ........... .................... ........... ............ .... ................... ............ .... ..13
8.3 County's Right To Use Or Sell LFG .............................................................13
Section 9. Warranties For LFG And Facility Operations .....................................................13
9.1 No Warranties for LFG ..................................................................................13
9.2 Warranty for Facility Operations ...................................................................14
Section 10. Measurement Of Landfill Gas ...........................................................................14
10.1 Measurement Standards For LFG ..................................................................14
10.2 Uncontrollable Conditions In LFG 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 For LFG And Electricity..................................................15
12.1 Metering Equipment ................ ......................................................................15
12.2 Testing Of Metering Equipment ....................................................................15
12.3 Notice Of Tests ..............................................................................................15
12.4 Right To Request Additional Tests................................................................15
12.5 Right To Observe And Inspect Metering Equipment ....................................16
12.6 Corrections Of Inaccurate Measurements......................................................16
Section 13. New Tax Credits And Emissions Credits ..........................................................17
13.1 New Tax Credits ............................................................................................17
13.2 Emissions Credits.................................... .... ................................................. ..1 7
Section 14. Payments To County..........................................................................................17
14.1 Payments For LFG .........................................................................................17
14.2 Payments For Electricity ................................................................................18
14.3 Payments For New Tax Credits And Emissions Credits ...............................18
14.4 Depreciation Payments ...... ........................ ....................................................18
14.5 Deductions From LOA Payments..................................................................19
14.6 Adjustments For Changes In Law..................................................................19
14.7 Rent Payments For Lease...............................................................................21
14.8 Disputes Regarding Billing Statements .........................................................21
14.9 Errors In Billing............................................................................................ .22
14.10 Delinquent Payments ............................... ...................... ................................22
14.11 Billing Statements .................. ............................. ...........................................22
14.12 Other Paymcnts To County ............................................................................22
14.13 Payments Based On Alternative Energy Tax Credits... ......... ... ...... ......22
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Section 15. Records And Reports ........... .............. ................................................................23
15.1 Records And Recordkeeping .........................................................................23
15.2 County's Right To Inspect And Audit Records.............................................23
15.3 Retention of Records.............. ..... ....... .... ............ .... .......... .................. ........... .23
15.4 Records Concerning Electricity Sales, New Tax Credits
And Emissions Credits ............... ........... ..... ............ ........................... .... .......... .23
15.5 Monthly Reports................... .... ........... .... ............ .......... .... .................. ......... .23
15.6 Annual Reports....... ............................. .......................... .... .......................... ..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 Complaints....................................................24
17.1 Responding To Citations................................................................................24
17.2 Citations Issued By The County ....................................................................25
17.3 Public Complaints............................... ... ............. ... .............. .............. ............25
Section 18. Authorized Uses Of the Premises .....................................................................25
18.1 Prior Approval Required To Use The Site.....................................................25
18.2 Authorized Uses Of Premises ........................................................................25
18.3 Easements Across The Site ............................................................................25
Section 19. Title To Improvements and Equipment on the Premises..................................26
Section 20. Right Of First Offer To Purchase 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 Of Costs And Expenses ......................................................................27
Section 25. Discharge Of Liens...................... ........................... ............................... ........... .27
Section 26. Subordination Of Mortgage.......... ........................... ....................................... ...28
Section 27. Condemnation........ ........... ...... .... .............. ................ .............. ......................... ..28
Section 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 Operation...............................................................30
29.1.2 Insurance During Design And Construction......................................31
29 .2 Terms And Conditions............ ............... ....................... .... .................. .......... .32
29.2.1 Deductibles/Self-Insured............ .............................................. ......... .33
29.2.2 Other Insurance Provisions.......... ........................... ............. ..............33
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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 3 O. Force Majeure .......................................................................... ............ ..... .........3 5
30.1 Effect Of Event Of Force Majeure.................................................................35
30.2 Notice Of Events Of Force Majeure ..............................................................35
30.3 Obligations Following Occurrence Of Event Of Force Majeure...................35
30.4 Termination For Extended Force Majeure.....................................................36
Section 31. Detimlts, Termination And Remedies................................................................36
31.1 Events Of Default ..........................................................................................36
31.2 Termination Procedure..................... ............ ...................................... .......... ..3 7
31.3 Cumulative Remedies ....................................................................................37
31.4 Default by WMIF ....................................... ....................................................3 8
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... ....... ............... ......... ......................... ..... ........ .... .........3 8
Section 34. Payment and Performance Bonds ......................................................................39
34.1 The Payment Bond............. ...................................................... ........... ...........39
34.2 The Performance Bond ....... ........................... ...................... ..... ........... ..........3 9
Section 35. Dispute Resolution.............. .... ............ .... ................................... ........... ..... ........40
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 Of Liquidated Damages ....................................44
Section 39. Venue for Litigation............................ .................................................. .......... ..44
Section 40. Governing Law....... .............................. ............ .......................... ........... ...........45
Section 41. Independent Contractor........................................................................ ..... ........45
Section 42. Assignment And Transfer Of Agreement.........................................................45
42.1 Assignment Of Agreement ............................................................................45
42.2 Transfer Of Agreement .................... ................................................. ..... ...... ..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 Of Notice ............................................................47
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Section 44. Taxes .................. ...................................................... ... ............. .......... ........ ..48
44.1 General. ............. .... ..................... .... .... ....... ......... .................... ........................48
44.2 Taxes On The Purchase OfLFG....................................................................48
Section 45. Representations and Warranties...... .......... .................................. ......................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 Decision-Making By Parties ........ .... ....... ................................... .................. ..50
46.5 No Third Party Beneficiary............................................................................51
46.6 Severability And Partial Invalidity of Agreement .........................................51
46.7 Costs....... ........ ..... ..................................................... .................................. .51
46.8 Specific Performance....... ............ ........ ..................... ... ............ .... ........ ..........51
46.9 Time Is Of The Essence.................................................................................51
46.10 Exhibits Incorporated Into Agreement...........................................................51
46.11 Counterparts......... ...................................... ................. .............................. ... ..51
46.12 Entire Agreement... ......... ........... ................ ............................. ..... ........... ...... .52
46.13 Headings......... .......................... .............. .... .............. ... ............ .................. ... .52
46.14 Interpretation Of Agreement........ ............................................. ............... ... ...52
46.15 Sovereign Immunity.................................................................... .......... ....... ..52
46.16 Remedies Are Not Exclusive .........................................................................52
Section 47. Equal Opportunity Employment ........................................................................52
47.1 Equal Opportunity Employment ....................................................................52
47.2 Immigration Laws .................................... ..................... ............ .................... .53
Section 48. Compliance With Labor Laws ...........................................................................53
Section 49. Fair Dealing.. ........ .......................... ............... ............................ ..... .............. .... .53
Exhibit "A"; Definitions... ....... ....................... .... ........................................... ......................A
Exhibit "B"; Site Map and Legal Description of the Premises...........................................B
Exhibit "C"; Draft Performance Bond ................................................................................C
Exhibit "D"; General Design Concepts and Major Components of Facility ......................D
Exhibit "E"; Schedules for Payments to the County ..........................................................E
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LANDFILL GAS SALES AGREEMENT AND GROUND LEASE
This Landfill Gas Sales Agreement and Ground Lease ("Agreement") is made and
entered into this J.!..ct't1ay of flu "..,b"v, 2008, by and between the Board of County
Commissioners ("Board") of Collier County, Florida, and Waste Management Inc. of Florida
("WMIF").
Recitals:
A. Collier County ("County") owns a Class I Landfill ("Landfill"), other solid waste
management facilities, and related appurtenances on a 300+/- acre site ("Site") located at 3750
White Lake Boulevard, in Collier County, 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
County.
D. WMIF now wishes to buy and the County wishes to sell the LFG generated in the
County's Landfill.
E. WMIF intends to use the LFG to generate Electricity, which WMIF will sell to
one or more third parties.
F. WMIF plans to generate the Electricity in a facility ("Facility") that WMIF will
design, permit, construct, maintain, and operate on the County's Site.
G. 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 WMIF.
H. Section 2.25 of the LOA provides that the County shall own and pay for the LFG
system, 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 Section 2.25 of the LOA.
J. This Agreement shall govern the County's sale ofLFG to WMIF.
K. This Agreement also contains the terms 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.
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L. WMIF modeled the gas production of the Landfill and finds there is sufficient gas to
operate the Facility for the term of this Agreement.
NOW, THEREFORE, based on the recitals set forth above, and in consideration of the
mutual covenants 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 terms and conditions of this Agreement:
Section 1: Overview Of This Agreement
1.1 Sale Of LFG And Lease Of Premises. The County hereby agrees to sell LFG to
WMIF, and WMIF hereby agrees to purchase LFG from the County, subject to the terms and
conditions contained in this Agreement. WMIF shall use the LFG to generate Electricity in the
Facility that WMIF shall construct and operate on the Premises. WMIF and 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 County,
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, permit, 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) otherwise ensure the successful operation of the Facility in
accordance with the Parties' goals and requirements, as set forth in this Agreement. WMIF shall
conduct all of its activities under this Agreement in compliance with the requirements contained
in this Agreement, the Permits, and Applicable Law. WMIF shall be solely responsible, at its
sole expense, for providing all of the labor, personnel, services, supervision, materials, insurance,
and equipment necessary to accomplish all of WMIF's tasks and satisfy all of WMIF's
obligations under this Agreement.
1.3 Exhibits To Agreement. The capitalized words and terms used in 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 form of WMIF's Performance 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 "E" contains
the formulas for calculating Gas Sales Payments, Electricity Sales Payments, and other payments
to the County.
1.4 Amendment To LOA. The County and WMIF have executed an amendment to
the LOA that deletes Section 2.25 of the LOA. This Agreement is a separate, stand-alone
contract that supercedes Section 2.25 of the LOA. In the event of any cont1ict or inconsistency
between this Agreement and the LOA, the terms of this Agreement shall govern the sale ofLFG,
the generation and sale of Electricity, the lease of the Premises, and the other issues addressed
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herein. This Agreement does not modifY or change the responsibilities of the Parties with regard
to the operation of the Landfill under the LOA.
Section 2: Term Of This Agreement
2.1 Initial Term. The Initial Term of this Agreement shall commence on the Effective
Date and shall terminate 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 WMIF, the Parties
shall have the right to renew and extend this Agreement for one or more Renewal Terms. Each
Renewal Term shall be a period of one (I) year, unless the County and WMIF agree otherwise.
The total duration of all Renewal Terms shall not exceed five (5) years.
2.3 Automatic Modifications To The Term.
2.3.1 The Term of this Agreement shall automatically be extended for a Renewal
Term of one (I) year unless the County notifies WMIF, or WMIF notifies the County, in writing
of its intent to terminate the Agreement at the expiration of the then current Term. The notice
shall be provided to the other Party at least ninety (90) days prior to the expiration of the Term.
2.3.2
If the Term of this Agreement is extended, the extension of this Agreement shall be on the
same terms and conditions 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 terminate concurrently
with the termination or expiration of the LOA, without any further action being required by
either Party.
Section 3: Conditions Precedent
3.1 WMIF's Right To Terminate Before Construction. WMIF's obligation to
construct the Facility pursuant to this Agreement shall be conditioned upon: (a) WMIF obtaining
all of the Permits required under Applicable Law to construct, operate, and maintain the Facility
in the manner contemplated herein; (b) all Permits being validly granted on terms and conditions
satisfactory to WMIF; (c) all Permits being final and no longer subject to appeal; and (d) the
availability of an Interconnection to the Grid at a cost and upon conditions that are satisfactory to
WMIF. IfWMIF diligently and continuously utilizes its best efforts to obtain the Permits but is
nonetheless unable to satisfY conditions (a) - (d) within two years after the issuance of a Notice
to Proceed, WMIF may terminate this Agreement by providing notice to the County prior to the
Commencement of Construction.
3.2 Countv's Right To Terminate. The County's obligation to sell LFG to WMIF is
conditioned upon WMIF's ability to permit, construct and operate the Facility in a timely
manner. If WMIF fails to achieve Commercial Operation within two (2) years after the issuance
of the Notice to Proceed, the County may terminate this Agreement by providing notice to
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WMIF, unless the Solid Waste Director or his designee, in writing, subsequently notifies WMIF
of a modified (later) 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 Of Obligations Before Construction. If this Agreement is terminated
pursuant to Section 3.1 or 3.2, the County and WMIF shall have no further obligations to each
other under this Agreement, except for those obligations that survive termination.
3.4 WMIF Responsibilitv to Qualifv for Alternative Energv Tax Credits. It shall be
WMIF's sole responsibility to achieve Commercial Operation that will result in WMIF receiving
the Alternative Energy Tax Credits, as defined in Exhibit A.
Section 4: Development Activities
4.1 Pre-Construction Submittals Bv WMIF. At least ten (10) days before the
Commencement of Construction, WMIF shall provide the Project Manager with: (a) certificates
of insurance demonstrating that the required insurance has been procured in compliance with this
Agreement; (b) a copy of each Permit obtained by WMIF for the proposed construction
activities; (c) the name, telephone number, and emergency contact information for WMIF's Site
Superintendent; (d) the contact information required pursuant to Section 4. I 3 .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 Commencement of Construction pursuant to this Agreement.
These documents are subject to review and approval by the County, which approval shall not be
unreasonably withheld or delayed.
4.2 No Construction Without Prior Countv Approval. WMIF shall not conduct any
pre-construction or construction work on the Premises until the Project Manager issues 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 certificates of insurance, Payment Bond, and other documents required pursuant to
Section 4. I, above.
4.3 WMIF's Obligation To Obtain Permits.
4.3.1 WMIF 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 Permits and approvals for the Facility.
4.3.2 Within ten (10) days after the Effective Date, WMIF shall provide the
Project Manager with WMIF's proposed schedule for the submittal of WMIF's applications for
all of the Permits that must be obtained before the Commencement of Construction. On or
before the tenth (10th) day of each month thereafter, WMIF 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 Permit; (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 issuance of the Permits.
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4.3.3 WMIF shall notify the Project Manager at least two (2) Business Days
before WMIF meets with any Governmental Authority concerning the Facility or LFG
Collection System. WMIF shall allow a County representative to accompany WMIF to such
meeting as a representative of the County.
4.3.4 WMIF shall not commence construction 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. WMIF shall have the sole responsibility to satisfy itself concerning the nature and
location of the work that WMIF intends to conduct on the Premises, including but not limited to:
the nature and quantity of the surface materials to be encountered; subsurface conditions; the
availability of water, electric, and other utilities; the location and condition of existing roadways,
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 the Site shall not relieve WMIF 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 Facilitv.
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". WMIF shall present its plans to the
Project Manager and Security Chief when 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 other documents demonstrating that the Facility was built in compliance with
the Permits and consistent with the provisions of Exhibit "D".
4.6 Meetings Concerning The Construction Of The Facilitv.
4.6.1 No later than five (5) Business Days before the Commencement of
Construction, WMIF shall conduct a meeting with the FDEP, the County, Waste Management
Renewable Energy ("WMRE"), and other appropriate Persons to discuss the construction of the
proposed Facility. At the meeting, WMIF shall present its plans for conducting the work,
coordinating with other Persons using the Site, maintaining compliance with the Permits, and
addressing related issues.
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4.6.2 After the Commencement of Construction, WMIF shall hold on-Site
meetings with the County to discuss the status of the proj ect. The meetings shall be held at least
once each month, unless the County and WMIF agree to follow a different schedule. These
meetings shall continue to be held until the construction project and all "punch list" items are
completed, or the Commercial Operation Date, whichever is later.
4.7 Coordination With Other Activities On The Site. WMIF shall coordinate the
construction, maintenance, and operation of the Facility with the other activities and operations
at the Site. WMIF shall conduct its operations under this Agreement in a manner that avoids
delays or other inconveniences to the County, the public, or any other Person using the Landfill
or working on the Site.
4.8 Coordination With Operation Of Landfill And LFG Collection Svstem.
4.8.1 WMIF shall at all times operate and maintain the Landfill and LFG
Collection System 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 disposal, environmental, safety, and public health objectives in compliance with
all Applicable Laws. The sale of LFG to WMIF and the generation of Electricity with the
Facility are secondary objectives.
4.8.2 WMIF shall conduct its activities under this Agreement in a manner that is
consistent with WMIF's responsibilities under the LOA. Among other things, 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 Other Svstems. WMIF shall be solely responsible for the
design, permitting, construction, installation, operation, and maintenance of any Interconnections
between the Facility and other systems or equipment located on or off of the Site, including
Interconnections required for; (a) the delivery of LFG from the Landfill to the Facility; (b) the
transmission of Electricity from the Facility to the Grid; and (c) the provision of electrical, water,
or other utility services to the Facility. Among other things, WMIF shall be solely responsible
for; (a) coordinating with the owner(s) and operator(s) of each system and piece of equipment
that will be connected to the Facility; (b) complying with any applicable reliability standards,
high voltage specifications, and other requirements concerning the Facility's supply of
Electricity to the Grid; (c) complying with any Applicable Law or contractual obligations with a
third party 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 WMIF 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 during
normal operations, upset conditions, and foreseeable emergency conditions (e.g., hurricanes;
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explosions). The Operations Manual also shall describe the regular maintenance tasks,
schedules, and procedures for all of the major components of the Facility, including but not
limited to Metering Equipment, engines, transformers, transmission lines, Interconnections,
piping, alarms, and fire detection systems. WMIF shall at all times adhere to the tasks,
schedules, and procedures set forth in the Operations Manual.
4.10.2 At least fifteen (15) days before the Commercial Operation Date, WMIF
shall provide a copy of the Operations Manual to the Project Manager. Thereafter, WMIF shall
update the manual promptly to account for changes in the equipment, components, systems, and
operating practices and procedures employed by WMIF. Updated pages of the Operations
Manual shall be provided to the Project Manager within ten (10) days after WMIF changes its
operating equipment or procedures. At least fifteen (15) days before the beginning of each
Operating Year, WMIF shall provide the Project Manager with a copy of the most recent version
of the Operations Manual.
4.10.3 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 personnel, 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 contact information shall be clearly posted at the Facility and in WMIF's offices
on the Site.
4.10.4 WMIF'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 Facility. 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 WMIF's Operations Manual shall include WMIF's security plan. At a
mInImum, the security plan shall describe the steps WMIF will take to control access and
otherwise ensure that an unauthorized Person will not be able to enter the Site or the Facility.
WMIF's security plan shall be consistent with the minimum security requirements that are
adopted by the Board on or before the Effective Date and are applicable to the County's
facilities.
4.11 Annual Maintenance Schedules For Facilitv.
4.1l.! 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 Project
Manager with a maintenance schedule, 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 shall provide oral notice to the Project
Manager. As soon as practicable but not later than the first Business Day immediately following
an unscheduled outage, WMIF shall provide written notice to the Project Manager describing:
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(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 Disposal Of Condensate.
4.12.1 WMIF shall dispose of Condensate in accordance with the LOA and
Applicable Law. WMIF shall apply for any modifications to the Permits needed to authorize the
handling and disposal of the Condensate from the Facility.
4.12.2. WMIF shall provide the Project Manager with copies of any test results or
other data collected by WMIF 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 WMIF 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 Equipment, And Supervision.
4.13.1 WMIF shall provide all of the labor, equipment, materials, personnel, and
supervision necessary to perform WMIF's duties under this Agreement in a safe, timely, and
efficient manner.
4.13.2 All of WMIF'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 WMIF 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 construction and operation of the
Facility is not interrupted or halted, except when authorized in accordance with this Agreement.
4.13.5 WMIF shall plan, organize, supervise, schedule, monitor, direct, and
control its work under this Agreement, competently and efficiently, devoting such attention
thereto and applying such skills and expertise as may be necessary to perform the work in
accordance with this Agreement.
4.13.6 At least ten (10) days before the Commencement of Construction, WMIF
shall provide 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
there are any changes in the personnel. The list shall include the name, address, telephone
number, and e-mail address of each employee of WMIF, WMRE, any subcontractor(s), and
others that will be working on the Site for WMIF.
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4.14 WMIF's Site Superintendent. WMIF shall have a Site Superintendent or the
Superintendent's designee on the Site at all times when an employee of WMIF, a subcontractor,
or other Person is constructing the Facility or anyon-Site Interconnection to the Facility. The
Site Superintendent shall be WMIF's representative on the 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 WMIF's Facility Operator. WMIF shall employ at least one (1) competent, fully
trained Person ("Operator") to operate the Facility. Beginning on the Commercial Operation
Date and throughout the remainder of the Term, an Operator or the Operator's designee shall be
present on the Site at least forty (40) hours per week, fifty-two (52) weeks per year. WMIF shall
arrange to have another Operator on the Site within twenty-four (24) hours, if necessary, to
address upset conditions or other problems that arise when the designated Operator is on
vacation or otherwise unavailable.
4.16 WMIF's Subcontractors.
4.16.1 WMIF may utilize subcontractors, including WMRE, to perform 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 Person 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 or any obligation on the part of the County to pay any
monies that may be due to any subcontractor. No subcontract shall relieve WMIF of its
responsibilities under this Agreement.
4.17 Educational Programs. WMIF shall assist the County in providing educational
programs concerning the Facility. At a minimum, WMIF shall conduct guided tours (not to
exceed 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 educational brochures shall be subject to the review and
approval ofthe Project Manager.
4.18 Storage Of Materials And Equipment.
4.18.1 WMIF shall inform the Project Manager about WMIF's anticipated needs
for lay-down and storage areas 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 WMIF 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.
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4.18.3 WMIF 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.
4.18.5 WMIF shall be solely responsible for the proper disposal of any Solid
Waste or other material generated by WMIF during the Term. During and upon completion of
construction of the Facility, WMIF shall promptly remove and properly dispose of any
accumulations of waste materials, rubbish, and other debris resulting from 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 construction and demolition debris, Solid Waste or other material that
WMIF places in the Landfill for disposal; however, this requirement does not apply to the
disposal of the office paper and office waste generated by WMIF in the Facility's administrative
offices.
4.19 Countv's Right To Inspect Facilitv. The County shall have the unrestricted right
to observe WMIF's activities on the Site, inspect WMIF's Facility, collect samples on the Site,
and otherwise monitor the air, water, soil, sound, and odor on the Site at any reasonable time to
verify WMIF's compliance with the requirements of this Agreement. However, the County must
comply with reasonable safety and security requirements, as well as the Permits and Applicable
Law.
4.20 Safetv And Security On Site.
4.20.1 Except as otherwise provided herein, WMIF shall be solely responsible for
the personal safety of its personnel, its subcontractors, and any other Person when they are on the
Site. WMIF shall be responsible for initiating, maintaining, and supervising all safety
precautions 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 to prevent
damage, injury or loss to, any Person on the Site and any materials, equipment, or buildings on
the Site.
4.20.2 WMIF may require any Person entering the Site to comply with
reasonable safety and security rules. WMIF shall not be the guarantor of the personal safety of
any County employee or County invitee that fails to comply with such rules.
4.20.3 Alcohol, drugs, and illegal substances are prohibited on the Site. The
employees ofWMIF, its subcontractors, and agents shall not possess or be under the influence of
any such substances while on the Site. Further, such Persons shall not bring any pistol, rifle,
firearm, or explosives 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. WMIF's employees and
subcontractors shall wear and display a valid and current Collier County identification card at all
times while they are on the Site.
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4.20.5 No later than ten (10) days before the Commencement of Construction,
WMIF shall meet with the Security Chief to discuss WMIF's security plan and confirm that
WMIF's security procedures during the construction of the Facility will be consistent with
WMIF's Operations Manual.
4.20.6 No later than ten (10) days before the Commercial Operation Date, 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 will be consistent with WMIF's
Operations Manual.
4.21 Protection Of Facilitv 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, and physical improvements on the Premises from 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 Emergencv Communications Svstem. WMIF shall develop, implement, and
maintain a communications system that will allow representatives of the County and WMIF to
communicate immediately with each other at any time, twenty-four (24) hours per day, seven (7)
days per week. Emergency contact information for the Director of the County's Solid Waste
Department ("Director"), the Project Manager, the Site Superintendent, and the Operator shall be
updated, as needed, and at least once cvery six (6) months after the Commencement of
Construction. WMIF's Site Superintendent and Operator shall always respond to
communications from the Director and Project Manager as expeditiously as possible.
4.23 Dutv To Cooperate. At all times during the Term, the Parties shall cooperate with
each other and work in good faith to accomplish the goals and comply with the requirements set
forth in this Agreement.
Section 5: Notices For Start Of Construction And Operation
5.1 Commencement Of Construction. WMIF shall provide written notice to the
Project Manager at least two (2) Business Days before the Commencement of Construction of
the Facility.
5.2 Startup 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 startup and shakedown period shall commence when WMIF
begins to provide LFG to the Facility for the purposes of starting and testing the engines used to
generate Electricity.
5.3 Commercial Operation Date. When the startup 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
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the County receives WM1F's notice. WM1F shall deliver its notice within one (I) Business Day
after the Facility achieves Commercial Operation. WM1F's notice shall include all test data,
reports, and other Records necessary to demonstrate that the Facility is ready for Commercial
Operation.
Section 6: Dutv To Inform County
6.1 WM1F shall immediately provide verbal notice to the County whenever there is a
spill, release, or other event on the Premises that poses an imminent risk of Pollution or a threat
to the public health. WM1F also shall provide written notice within two (2) Business Days after
such event. WM1F's verbal and written notices shall describe the problem, the steps taken by
WM1F to address the problem, the expected duration ofthe problem, and the expected impacts of
the problem.
6.2 WM1F shall notifY the County within two (2) Business Days after WMIF
determines that the Facility is not operating, or has not been operating, or will not be operating in
compliance with the requirements contained in this Agreement or any Permit.
6.3 WM1F shall provide the County with a copy of any correspondence or other
Records sent to or received from the FDEP or any other Governmental Authority concerning the
Facility. This obligation includes all monitoring reports, permit applications, Citations,
notifications concerning a failure to comply with any applicable Permit, and other matters,
whether transmitted electronically or in a hard copy. All such documents shall be delivered 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 WM1F receives from a
neighbor, homeowners association, or other Person concerning the Facility. WM1F shall provide
the Project Manager with copies of (a) all letters and electronic complaints WM1F receives and
(b) all written and electronic telephone logs, forms, or reports WM1F prepares concerning such
complaints. These materials shall be delivered to the Project Manager within two (2) days after
they are received or prepared. At the same time, WM1F shall provide the Project Manager with a
written report describing how WM1F addressed each complaint.
Section 7: Title To LFG And Mineral Ril!.hts
7.1 Title To LFG. The County represents and warrants to WM1F that, as 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 Rights Or Production Rights. Nothing in this Agreement or the LOA
shall be deemed to grant to WM1F any production rights or other rights to, or interest in, any oil
or natural gas or other minerals located under or in the Landfill.
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Section 8: Sale OfLFG
8.1 Sale Of LFG To WMIF. Subject to the conditions contained herein, during the
Term (a) the County agrees to sell to WMIF all of the LFG 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 use its best efforts to operate the Facility at its design rated capacity on a continuous basis
and thus use as much of the County's LFG as feasible. However, the County shall have no
obligation to provide LFG in quantities that exceed the amount that is collected by and available
in the LFG Collection System, and WMIF shall have no obligation to purchase LFG in quantities
that exceed the amount needed to operate the Facility. The County shall have no obligation 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
able to use all of the available LFG for the generation of Electricity and, therefore, part or all of
the LFG will be burned by WMIF in a flare, unless the County uses the LFG for other purposes.
Flaring ofLFG by WMIF will be perfonned in accordance with WMIF's Operations Manual and
Applicable Law.
8.3 Countv's Right To Use Or Sell LFG.
8.3.1 Notwithstanding anything else contained in this Agreement, the County
may use the LFG collected in the LFG Collection System, and the County may divert, 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 unwilling to use the LFG in the Facility to generate Electricity (e.g.,
when the Landfill produces more LFG than WMIF 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 WMIF at least thirty (30) days
before the County exercises its rights under Section 8.3.1, above.
8.3.3 The County's activities pursuant to Section 8.3.1 shall not: (a) cause a
violation of the Permits or Applicable Law; or (b) materially and adversely affect WMIF's
operation of the Facility or the LFG Collection System.
Section 9: Warranties For LFG And Facility Operations
9.1 No Warranties For LFG. THE COUNTY MAKES NO WARRANTIES AS TO
THE QUALITY OR QUANTITY OF LPG THAT WILL BE SOLD TO WMIF PURSUANT
TO THIS AGREEMENT. THE COUNTY AND WMIF AGREE THAT THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED FROM
THIS TRANSACTION AND DO NOT APPLY TO THE LFG SOLD HEREUNDER. WMIF
KNOWINGLY AND VOLUNTARlLY ACCEPTS ALL RISKS AND RESPONSIBILITIES
ASSOCIATED WITH THE QUANTITY AND QUALITY OF THE LFG SOLD TO WMIF
PURSUANT TO THIS AGREEMENT.
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9.2 Warrantv For Facility Operations. The design rated electric generating capacity
of the Facility shall be at least four (4.0) megawatts. WMIF shall use its best efforts to operate
the Facility at its design rated capacity at least ninety percent (90%) of each Operating Year, as
determined on an annual average basis. WMIF shall use its best efforts to limit each of the
Facility's 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 LFG
delivered hereunder shall be one standard cubic foot ("SCF") of LFG, 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 fundamental constants, observations, Records, and
procedures involved in determining the quantity of LFG delivered hereunder shall be in
accordance with the standards prescribed in Report No.3 of the American Gas Association, as
now in effect and from time to time amended or 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 LFG shall be determined by multiplying: (i) the volume ofLFG, expressed in SCF; by
(ii) the amount of methane (CH4) in the LFG, expressed as a iraction of the LFG; by (iii) a fixed
quantity of 1,012 BTU per SCF. The number of MMBTUs in the County's LFG shall be
determined by dividing the BTU content of the LFG by one million (1,000,000).
10.2 Uncontrollable Conditions In LFG Collection Svstem. The Parties recognize that
moisture, pressure, or other conditions within the LFG Collection 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 determine a protocol
for estimating LFG deliveries using 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 Of Electricity
11.1 Sales Of Electricitv. 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 activities or purposes 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 WMIF receives prior written approval for such use from the Director.
11.2 Sharing Electricitv Revenues. WMIF shall pay the County fifty percent (50%) of
all revenue received by WMIF from the sale of Electricity generated by the Facility, when and to
the extent that the average sales price for Electricity in a Billing Period exceeds the applicable
revenue-sharing threshold identified in Exhibit "E". The average sales price for Electricity shall
be determined by dividing (a) the gross revenues received by WMIF for Electricity sales in a
Billing Period (b) by the total number of megawatt-hours of Electricity sold by WMIF in such
Billing Period. Nothing contained herein shall be construed to require the County to pay WMIF
for Electricity if the sales price for the Facility's Electricity is less than the applicable revenue-
sharing threshold in Exhibit "E".
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11.3 County's Right To Use Electricity. At the County's request, WMIF shall sell the
Electricity from the Facility to the County, if such Electricity can be provided by WMIF without
violating: (a) the terms of WMIF'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 Electricity to the County, the County shall pay WMIF the same
price per kilowatt-hour that WMIF would receive 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: Metering Equipment For LFG And Electricitv
12.1 Metering Equipment. WMIF shall install, test, calibrate, maintain, and operate
Metering Equipment that will enable WMIF to measure accurately and continuously (a) the
volume ofLFG, measured in SCF, used by the Facility to generate Electricity; (b) the amount of
methane in the LFG, expressed as a fraction of the LFG; and (c) the Electricity transmitted from
the Facility to the Grid. At a minimum, the Metering Equipment for Electricity shall comply
with any technical specifications and requirements that govern WMIF's Interconnection to the
Grid, including but not limited to the requirements established by the Person that 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 Metering Equipment. WMIF shall take all necessary steps to ensure
that its Metering Equipment accurately and continuously measures the LFG used by the Facility
and the Facility's electrical output to the Grid. At a minimum, WMIF shall: (a) maintain the
Metering Equipment in good working condition at all times, in accordance with the
manufacturer's specifications and good operating practices; (b) hire one or more independent,
qualified, third party technicians or consultants to test and calibrate the Metering Equipment; and
(c) perform such testing and calibration at least once before the Commercial Operation Date and
at least once everyone hundred eighty (180) days thereafter throughout the Term. WMIF may
conduct additional tests at any time, after giving notice to the Projcct 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, WMIF shall provide a copy of the independent
contractor's report to the Project Manager. At a minimum, the report shall indicate: (a) whether,
and the extent to which, the Metering Equipment was inaccurate; (b) the cause of any
inaccuracy; (c) the duration of any inaccuracy, if the duration can be ascertained; (d) whether any
inaccuracy is expected to reoccur; and (e) the steps taken to correct any inaccuracy.
12.4 Right To Request Additional Tests. The Project Manager may request one or
more additional tests of the Metering Equipment at any time. The Project Manager shall have
the right to select any independent, qualified, third party to conduct such tests. The third party
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
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Metering Equipment is less than two percent (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 The cost of performing additional tests concerning Electricity shall be paid
by the County if the tests demonstrate that any inaccuracy in the Electricity measurements from
the Metering Equipment is less than one percent (1.0%). The cost of performing 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 Inspect Metering Equipment. 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
Equipment. Each Party shall have the right to conduct an inspection of the Metering Equipment
at any time.
12.6 Corrections OfInaccurate Measurements.
12.6.1 If WMIF learns at any time that any Metering Equipment is not measuring
or has not measured accurately, WMIF shall immediately provide 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 corrected for any period of
inaccuracy which is known or agrced upon, or if not known or agreed upon, then for a period
extending back one-half of the time since the date of the most recent calibration of the Metering
Equipment.
12.6.2 If for 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 cannot be ascertained or
computed from the readings of the Metering Equipment, the quantity of LFG delivered during
such period shall be estimated and agreed upon by the Parties, by using the first of the following
methods that is feasible: (a) by using the data from a back-up or alternate meter if any such
meter is installed and measuring accurately; (b) by correcting the error, if 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 when 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 ofrepair
to such a degree that the quantity of Electricity transmitted to the Grid cannot be ascertained or
computed from the readings of the Metering Equipment, the quantity of Electricity shall be
determined 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 used by a Person purchasing the Electricity from the
Facility), if any such meter is installed and reading accurately; (b) by correcting the error, if the
percentage or error is asccrtainable by calibration, test, or mathematical calculation; or (c) by
determining the quantity of Electricity transmitted to the Grid during a prior Billing Period when
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the Facility was operating under similar conditions and the Metering Equipment was measuring
accurately.
12.6.4 If it is not feasible to use any 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 forth 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 WMIF from
any Governmental Authority, WMIF shall pay to the County an amount equal to ninety 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, WM1F shall use its best
efforts to qualify for and claim the benefits of Alternative Energy Tax Credits and New Tax
Credits that will maximize the rcvenues earned by the Facility and shared by the Parties.
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 ninety 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 WM1F owns
and are in any way attributable to, generated by, or related to the use of the County's LFG or the
generation of Electricity in the Facility. WMIF shall use its best efforts to sell or use all
Emissions Credits in a manner that maximizes the revenue derived 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: Payments To County
14.1 Pavments For LFG.
14.1.1 WMIF shall pay the County for all of the LFG that is generated in the
Landfill and used by the Facility. However, WMIF shall pay for LFG used during the startup
and shakedown period before the Commercial 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.
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The amount of the Gas Sales Payments from WMIF to the County shall be calculated pursuant to
the formulas set forth in Exhibit "E".
14.1.2 Within twenty (20) days after the end of each Billing Period, WMIF shall
pay to the County the total amount of the Gas Sales Payment that is due and owing from WMIF
pursuant to this Agreement for the Billing Period. WMIF's Gas Sales Payment for the first
Billing Period shall include WMIF's payment (if any) for the LFG that WMIF used 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 used 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". WMIF 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 startup and shakedown period
before the Commercial Operation Date. The amount of the Electricity Sales Payments from
WMIF to the County shall be calculated pursuant to the formulas 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 shall provide the County with a
billing statement that includes the calculations and back-up data used by WMIF to determine 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 Term, including but not limited to the period before the Commercial Operation
Date. Within twenty (20) days after the end of WMIF's fiscal year, WMIF shall pay to the
County the total amount that is due and owing from WMIF for New Tax Credits for the
preceding fiscal year. WMIF's first payment shall include WMIF's payment for the New Tax
Credits and Emission Credits WMIF received before the Commercial Operation Date. With each
payment, WMIF also shall provide the County with a billing statement that identifies the total
amount of the gross revenues and any other financial benefit WMIF received during the Billing
Period from New Tax Credits and Emissions Credits. The requirements in this paragraph do not
apply to Emissions Credits if such credits are transferred to the County and sold by the County.
14.4 Depreciation Pavments
14.4.1 If the Term is extended pursuant to Section 2.2, above, WMIF shall pay a
depreciation fee to the County during the Renewal Term.
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,
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the average annual depreciation shall be deemed to be three hundred fifty-two thousand dollars
($352,000), which is one-twentieth (1120) of the estimated capital cost for the Facility (i.e., seven
million forty thousand dollars ($7,040,000)). The depreciation fee shall be paid to the County in
twelve equal monthly payments of twenty-nine thousand three hundred and thirty-four dollars
($29,334.00) during each year of the Renewal Term. The depreciation fee shall be paid each
Billing Period during the Renewal Term, in the same manner as the Gas Sales Payment.
14.5 Deductions From LOA Pavments. The Gas Sales Payment, the Electricity Sales
Payment, the payments for New Tax Credits and Emissions Credits, the payment of rent, the
depreciation payments, and any 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 Changes In Law.
14.6.1 WMIF may petition the County for an adjustment equal to fifty percent
(50%) of the costs required to comply with a 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) that affect the
operating permit(s) that govern the Facility. Any such petition shall be based solely on 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 grounds.
Only those capital expenditures that will exceed One Hundred Thousand Dollars ($100,000) per
Change in Law event, or operating costs that exceed Forty Thousand Dollars ($40,000) per
calendar year, will be considered.
14.6.2 For the purposes of this Section 14.6: (a) a capital cost shall not be deemed
"significant" unless it exceeds One Hundred Thousand Dollars ($100,000) per Change in Law
event; (b) an operating cost shall not be deemed "significant" unless it exceeds Forty Thousand
Dollars ($40,000) per calendar year; and (c) a "cost" shall only include direct, out-of-pocket
expenses paid by WMIF to a third party that is not affiliated with WMIF, without any mark-up,
administrative charge, or profit for WMIF. 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 a
profit earned by the third party.
14.6.3 The petitioning procedure for WMIF shall be as follows:
1. Promptly after WMIF learns of a Change of Law affecting its performance
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 ninety (90) days after WMIF provides notice to the County, WMIF
shall provide the County with a written estimate of the dollar amount of WMIF's proposed
compliance plan and WMIF's proposed schedule for implementation.
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3. To the extent that WMIF's costs are easily calculable (e.g., the capital
expenditure is known by virtue of a quote, or proposal, or expenses that are easily projected 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 forth below. In all other cases, among other things,
WMIF's petition shall include: (a) an audited statement of WMIF's historical and current
expenses, demonstrating that WMIF will incur an increase in WMIF's costs due to the Change in
Law; and (b) evidence demonstrating that (i) the increased costs are caused by factors beyond
WMIF's control, (ii) WMIF has used and will continue to use due diligence to minimize the
financial impact of the Change in Law, and (iii) the increased costs occurred through no fault or
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 County may audit WMIF's records to evaluate WMIF's request. The Project Manager may
request from WMIF, and WMIF shall provide, all of the information that is reasonably necessary
for the Project Manager to evaluate WMIF's petition. Only those capital costs in excess of One
Hundred Thousand Dollars ($100,000) per Change in Law event, or operating costs that exceed
Forty Thousand Dollars ($40,000) per calendar year, will be considered in WMIF'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 pursuant to Section 14.6.3, above, the County 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 manner.
Compliance options may include, but are not limited to the following:
I. 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 current County Purchasing Policy;
3. Reserving the County's right to make direct purchases 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 the Project Manager and WMIF are unable to reach a mutually
acceptable agreement within 90 days after the County receives all of the information 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 agreed to by the County and WMIF. Once the Independent Enginecr is
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provided with all the information required pursuant to Section 14.6.3, the Independent Engineer
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 equally the fees and expenses of the Independent
Engineer (including the fees and expenses of any experts designated by the Independent
Engineer).
14.6.7 The recommendation ofthe 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 WMIF reach a
mutually acceptable agreement concerning the cost sharing amount or (b) the Independent
Engineer issues a written recommendation conceming the Parties' dispute. The Board's decision
to grant or deny WMIF's petition shall be based on the criteria contained 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 lump sum payment to WMIF; (c) making periodic payments to WMIF; or (d)
making other financial arrangements that both Parties deem appropriate. However, any financial
arrangement selected by the County must be based on commercially reasonable terms and
conditions.
14.6.10 The County shall have the right to restore part or all of the original
payment requirements in the Agreement if WMIF's costs are subsequently reduced by a Change
in Law. Every twelve (12) months after a request is granted, the Project Manager shall have the
right to request, and WMIF shall prepare promptly upon request, an updated audited statement
and explanation of whether the adjusted payment schedule should remain in effect. Upon
review, the Project Manager and WMIF 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 manner described in Sections 14.6.6, 14.6.7, and
14.6.8, above.
14.7 Rent Pavments 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 dollars paid to
the County each Operating Year for LFG sales shall be deemed to constitute WMIF's payment
for rent in that Operating Year.
14.8 Disputes Regarding Billing Statements. After receiving a billing statement from
WMIF pursuant to this Section 14, the County 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 Party may request
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an additional test or 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 cost 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 forth in Section 35.
14.9 Errors In Billing. If either Party discovers that there has been an overcharge or
undercharge in the amount of any payment, the Party discovering the error shall notify the other
Party in writing within thirty (30) days. Within forty-five (45) days after the notice is delivered,
WMIF shall correct the error by increasing or 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, pursuant to Section 14.10, below, from the date of the
underpayment or overpayment until the error is corrected.
14.10 Delinquent Payments. All amounts payable by the County pursuant to this
Agreement shall be paid in compliance with the Local Government Prompt Payment Act
(Section 218.70 et seq., Florida Statutes), 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.
14.11 Billing Statements. The form and content of WMIF's billing 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 startup and shakedown
period.
14.12 Other Pavments To Countv. WMIF shall not use the County's LFG for any
purpose that is not explicitly authorized herein or approved in advance in writing by the County.
If WMIF receives revenues from the sale or use of the County's LFG in an unauthorized manner
(e.g., for sludge drying), WMIF shall pay the County an amount equal to ninety percent (90%) of
the gross revenue received by WMIF for such sale or use. WMIF shall pay such revenues to the
County within twenty (20) days after the end of the Billing Period in which such revenues are
received by WMIF.
14.13 Pavments Based on Alternative Energv Tax Credits.
14.13.1 The Parties recognize that the Altcrnative Energy Tax Credit may be
amended in the future. This Section 14.13 explains how the payments from WMIF to the County
will be affected under various scenarios.
14.13.2 WMIF's Gas Sales Paymcnts 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, WMIF's Gas Sales Payments and
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Electricity Sales 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 Alternative 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: Records And Reports
15.1 Records And Recordkeeping. It shall be WMIF's sole responsibility to keep and
maintain all of the electronic and paper Records needed for WMIF to demonstrate that it has
satisfied all of WMIF's obligations under this Agreement. Among other things, WMIF shall
keep and maintain all 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 minimum, WMIF's
Records shall identify and fully document the amount of: (a) LFG used by the Facility; (b)
Electricity transmitted from the Facility to the Grid; and (c) New Tax Credits; and (d) Emission
Credits; and (e) the capital costs of WMIF in the permitting, design, construction, and
commissioning of the Facility, the preparation and site work of the Premises, and any offsite
work required to facilitate or enabling permitting, development and operation of the Facility and
the Premises; and (f) operating costs directly related to a Change in Law. All of WMIF's
Records concerning the Facility shall be complete, organized, up-to-date, and accurate
15.2 County's Right To Inspect And Audit Records. WMIF shall make its Records
available to the County for inspection and copying at the Site during normal business hours,
whenever requested by the County, within fourteen (14) days after WMIF receives the County's
request. The County shall have the right, at its own cost and expense, to conduct an audit of
WMIF's Records at any time.
15.3 Retention Of Records. WMIF shall retain all of its Records for five (5) years
following the termination or expiration of this Agreement, or for any longer period required by
Applicable Law.
15.4 Records Concerning Electricitv Sales, New Tax Credits, And Emissions Credits.
At least ten (10) days before the Commercial Operation Date, WMIF shall provide the Project
Manager with copies of all of WMIF's contracts and other agreements concerning (a) the sale of
the Electricity generated 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 contracts, contract amendments and renewals, and related agreements within ten (10)
days after WMIF receives such documents. WMIF's failure to provide these Records shall
constitute a material default under this Agreement.
15.5 Monthlv Reports. WMIF shall prepare and submit a monthly report to the Project
Manager when WMIF submits its billing statement for a Billing Period. The monthly report
shall contain all of the data, information, and Records necessary to verify WMIF's calculation of
the amounts to be paid to the County pursuant to this Agreement. The monthly report also shall
idcntify and describe any events or conditions that adversely affected the operation of the
Facility during the Billing Period or are reasonably expected to adversely affect the operation of
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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 Annual Reports. Within thirty (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 WMIF's monthly reports. Among other things, the annual
report 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 to the Grid; (c) the total
amount of gross revenue collected by WMIF for the sale of Electricity, identified by customer;
and (d) the gross revenues and other financial benefits received by WMIF from New Tax Credits
and Emission Credits, respectively. The annual report also shall identify and describe: (a) any
anticipated conditions or events that are reasonably expected to affect the operation or
performance of the Facility, or the revenues derived by the County from LFG, Electricity, New
Tax Credits, Emissions Credits, or other attributes of the Facility; (b) the steps WMIF 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 format and content of the annual report shall be subject to
the approval of the Project Manager.
Section 16: Compliance With Laws, Permits, And Prohibitions
16.1 Compliance With Laws. WMIF shall comply with all Applicable Laws
concerning the Landfill and the Facility.
16.2 Compliance With Permits. WMIF shall comply with all Permits that are required
under Applicable Laws for WMIF to perform its obligations under this Agreement.
16.3 Compliance With Prohibitions. Subject to the other provisions contained herein,
WMIF's activities under this Agreement shall not cause: (a) Pollution; (b) Objectionable Odors
beyond the 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 of the
Site; or ( e) violations of any other Applicable Law.
Section 17: Re2ulatorv Citations And Public Complaints
17.1 Responding To Citations. WMIF shall respond promptly to all Citations
concerning or related to WMIF's activities under this Agreement. WMIF shall provide notice
and a copy of each Citation to the Project Manager no later than the next Business Day after the
Citation is received by WMIF at the Site, or received by WMRE in its corporate offices,
whichever occurs first. Thereaftcr, WMIF shall keep the Project Manager informed about the
on-going status of WMIF's efforts to address the Citation, and shall provide notice to the Project
Manager when the Citation has been satisfactorily resolved. WMIF shall pay all costs of
investigating and responding to Citations, all costs of correcting deficiencies and achieving
compliance with Applicable Law, and any fines assessed as a result ofWMIF's non-compliance.
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17.2 Citations Issued By The County. If an agency or division of Collier County
issues a Citation that WMIF believes is improper, WMIF shall advise the Project Manager within
three (3) days about the circumstances concerning the Citation. The Project Manager shall
promptly schedule a meeting with WMIF, the issuing agency, and the Project Manager to
attempt to resolve WMIF's concerns about the Citation. If the Parties are unable to resolve the
matter, 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 Complaints. WMIF shall respond promptly to any complaint received by
WMIF from any Person concerning or related to WMIF's activities under this Agreement.
WMIF shall use its best efforts to resolve such complaints as expeditiously as possible.
Section 18: Authorized Uses Of The Premises
18.1 Prior Approval Required To Use The Site. WMIF shall not use the Site or the
Premises for any activity unless the activity is expressly authorized by this Agreement or the
LOA, or WMIF has received the advance written approval of the Project Manager. The
County's consent in this Agreement to the proposed uses of the Premises shall not be construed
to waive or negate WMIF's obligation to comply with all Applicable Laws, including the
County's land development code, building code, and other laws governing 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 and use the Premises, including the
right to construct, install, own, maintain, and operate the Facility on the Premises. WMIF also
may: (a) store materials, equipment, and supplies on the Premises, when necessary for the
construction, operation, or maintenance of the Facility; (b) access the Premises by using the
entrance 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 Premises;
(d) connect the Facility to the Landfill flare and use the flare to dispose of excess LFG, when
necessary; and (e) install electric transmission lines and related equipment 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 agreements creating easements across, under, and
over the Site, as necessary for the installation, construction, 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 agreement that has
been approved by the County. Any easement and any easement agreement granted by the
County pursuant to this Agreement shall terminate when this Agreement expires or terminates.
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Section 19: Title To Improvements And Equipment On The Premises
For the duration of the Term, WMIF shall hold title to all moveable electrical equipment
and other improvements WMIF erected, installed, or constructed 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 one dollar
($1.00). For the purposes of this paragraph, the permanent fixtures do not include the engine-
generators, fuel compressor skid, or the switch gear; however, these components of the Facility
may be purchased by the County for an amount that is mutually acceptable to the Parties. If the
County purchases the permanent structures, fixtures, and improvements to the Premises, WMIF
shall deliver appropriate documentation to the County for the purposes of identifYing and
recording their sales transaction. If the County does not purchase the permanent structures,
fixtures, and improvements to the Premises on or before the expiration of this Agreement, WMIF
shall remove all such structures, fixtures, and improvements within one hundred eighty (180)
days after the expiration of the Agreement, unless the County waives part or all of this
requirement in writing.
Section 20: Right Of First Offer To Purchase Facility Upon Closure
WMIF hereby grants to the County a right of first offer to purchase the Facility at any
time WMIF permanently and completely ceases operation of the Facility. If WMIF proposes to
permanently and completely cease operation of the Facility, WMIF shall give the Director
written notice of WMIF's intention to do so, describing the price and the general terms upon
which WMIF is willing to sell the Facility. After receiving WMIF's notice, the County shall
have sixty (60) days to agree to WMIF's proposal or negotiate mutually acceptable terms for the
purchase 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 accordance'
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 be restored by WMIF in accordance with Section 32. The County's rights under
this paragraph shall survive the tennination of this Agreement.
Section 21: Right To Purchase Facility After Ten Operating Years
At any time after the tenth (10th) anniversary of the Commercial Operation Date, the
County may terminate this Agreement 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 WMIF 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 upon the payment to WMIF of the purchase price.
Upon the execution of all necessary documents to consummate the sale of the Facility: (a) this
Agreement shall terminate; (b) WMIF shall have no further obligation to operate or maintain the
Facility; and (c) the Parties' rights and responsibilities under this Agreement shall be
extinguished, except for those obligations that survive the temlination of this Agreement.
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Section 22: Repair Of Premises
WMIF shall keep and maintain the Premises and the Facility in a good state of
appearance and repair, reasonable wear and tear excepted, and shall promptly repair and replace
the same in the event of any deterioration, loss, or damage. If the Facility or any 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 County.
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 Agreement 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: Expansion Of The Facility
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 WMIF may expand the Facility in the future, when and to the extent necessary to
maximize the use of the LFG. To the extent feasible, WMIF shall design and construct the
Facility in a manner that accommodates the future expansion of the Facility. However, neither
Party shall be obligated to expand the Facility. If any expansion of the Facility occurs, the
expansion 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 to
this Agreement.
Section 24: Payment Of Costs And Expenses
WMIF shall pay and discharge as they become due, promptly and before delinquency, all
utility fees, Permit fees, impact fees, Interconnection 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 Agreement. The County shall not
be obligated to pay any such costs or expenses, except and only to the extent that this Agreement
explicitly provides for such payment by the County.
Section 25: Discharge Of Liens
WMIF covenants and agrees that it shall keep, or cause to be kept, the Premises, the Site,
and all equipment and materials that are incorporated into the Facility or are the property of
WMlF, free and clear of mechanics, laborers, or materialmens liens, and all other liens of a
similar nature that may arise in connection with work of any character or service of any nature at
the Site. Within ninety (90) 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 pursuant to this Agreement, the County shall promptly give
written notice to WMIF. If WMIF fails to discharge such lien within ninety (90) days, then the
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County may, but is not obligated to, procure the discharge of the lien by either paying the
amount claimed to be due into court 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 Mortl!:al!:e
This Agreement shall be subj ect and subordinate to any mortgage or other instrument
securing 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 WMIF shall have the rights granted
under this Agreement and, therefore, the County shall procure and maintain such rights for
WMIF, notwithstanding the County's grant of any mortgage or other security interests on the
Site.
Section 27: Condemnation
If the Premises or any portion thereof is condemned or taken by a Governmental
Authority during the 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 property being condemned or taken. If the court is unable or unwilling to make
separate awards, WMIF and the County shall equitably apportion the award between them, based
on their respective interests.
Section 28: Indemnification And Limitation Of Liability
28.1 Indemnification By 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, or
become liable for because of: (a) the handling, transportation, management, use or disposal of
any Solid Waste, LFG, Condensate, leachate, Electricity, or other solid, liquid, or gas managed
by WMIF under the provisions of this Agreement; (b) WMIF's violation of any Applicable Law;
(c) WMIF's breach of this Agreement; (d) WMIF's negligence or intentional or willful
misconduct; ( e) the breach of, misrepresentation in, untruth in, or known inaccuracy in any
representation, warranty, or covenant of WMIF as set forth in this Agreement; or (f) WMIF's
use, occupancy, or operation of the Premises.
28.1.2 For the purposes of this Section 28, the "County" shall be deemed to
include the Board and the County's officers, agents, consultants, employees and affiliates, and
"WMIF" shall be deemed to include WMRE, WMIF's subcontractors, sub-subcontractors of any
tier, and their respective officers, agents, employees, and affiliates.
28.2 Duty To Defend. WMIF's duty to defend the County is separate from WMIF's
duty to indemnify. The duty 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 provided to WMIF.
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28.3 Survival Of Obligations. WMIF's obligation to indemnify and its duty to defend
shall survive, and shall remain in full force and effect, notwithstanding the expiration or
termination of this Agreement. The limitation ofliability provisions in Section 28.4, below, also
shall survive 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 forth herein: (a) the County and WMIF shall only be liable for direct damages
suffered by the other Party as a result of a breach or default of this Agreement by the Non-
Performing 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 revenue), or for claims of non-Party 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 tort
(whether negligence, strict liability or otherwise), or any other cause or form of action
whatsoever, provided that the foregoing limitation on liability shall not limit WMIF's obligation
to indemnify, defend and hold harmless the County for any losses occasioned by third party
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 limitation on the amount or type of damages,
compensation, or benefits payable under any insurance policy or Applicable Law, including any
Workers' Compensation and industrial insurance acts, disability benefit acts, or other employee
benefits acts.
28.4.3 Nothing in this Agreement shall be construed in any way to affect the
County's rights, privileges, and immunities as set forth in Section 768.28, Florida Statutes, as
amended from time to time. This indemnity and hold harmless obligation does not limit any
additional compensation available from insurance, bonding, or equitable and legal remedies
available under this Agreement.
28.4.4 If either Party breaches this Agreement, the other Party shall use
commercially reasonable efforts to mitigate the damages, losses, costs, and expenses it suffers as
a result of the breach.
28.5 Insurance Proceeds. Any amount paid to a County indemnified Person for an
indemnity Claim hereunder shall be net of any insurance proceeds paid to such Person under any
insurance policies in connection with such indemnity Claim.
28.6 Relationship With Other Agreements. The rights and obligations of the Parties
under this Agreement are in addition to and cumulative with the rights and obligations of the
Parties 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.
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28.7 No Release Of Insurers. The provisions of this Section shall not be construed so
as to relieve any insurer of its obligation to pay any insurance proceeds in accordance with the
terms and conditions of 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, WMIF shall execute such documents as may be
necessary to effect an assignment of its contractual rights against the non-paying insurer and
thereby give the County the opportunity to enforce its judgment directly against such insurer,
provided that nothing in this Section 28.7 shall relieve WMIF of its liability hereunder to pay
such loss, expense or Claim.
28.8 Indemnification Bv County. Subject to the limitations set forth in Section
768.28, Florida Statutes, the County hereby agrees to protect, indemnify and hold harmless
WMIF from and against any Claim that is filed against WMIF by a third party and based on the
negligence of the County, willful misconduct, or material breach of this Agreement by the
County. The County's obligations under this paragraph only extend to the extent of the 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 Required Insurance.
29.1.1 Insurance During Operation. WMIF shall obtain, not later than ten (10)
days before the Commercial Operation Date, and maintain during the Term the minimum
insurance set forth below, except that the Pollution Liability coverage set forth 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 and/or broader 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) General Liability. Coverage shall 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 for
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. Aggregate 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 explosion, collapse and underground damage (XCU) to property of others.
(b) Automobile Liabilitv. Automobile liability insurance providing
coverage at least as broad as Insurance Services Office form number CA 00 01 Ed. 12/90
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covering BUSINESS AUTO COVERAGE, symbol 1 "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
injury and property damage.
(c) Workers' Compensation. 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) Emplover's Liabilitv or "Stop Gap". Coverage shall be at least 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 occurrence and in the aggregate, to cover sudden and non-sudden bodily injury
and/or property damage, including the physical injury or destruction of tangible property, loss of
use, clean up costs, and the loss of use of tangible property that has not been physically injured
or destroyed. In the event that the aggregate limit is eroded in any policy year, WMIF agrees
to purchase a reinstatement of the aggregate limit, if available. Coverage for Pollution
conditions shall include vibration, noise and odors. Coverage shall be endorsed to include:
(i) Third party Claims for on-Site bodily injury and
property damage;
(ii) Third party Claims for off-Site bodily injury and
property damage; and
(iii) Third party 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 form perils including wind, hail, hurricane, equipment breakdown and flood. Coverage
shall include consequential and business interruption losses to all property that is directly
damaged by the accident, and shall cover all reasonable 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 Commercial 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 per occurrence, and for those policies with aggregate limits, a
$10,000,000 aggregate limit. A $10,000,000 annual 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 procure or cause its construction contractor to
procure the following insurance described below for the period from the Commencement of
Construction until the Commercial Operation Date:
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(a) General Liabilitv. Coverage shall 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 for
those policies with aggregate limits, a $5,000,000 aggregate limit. The policy shall not exclude
coverage for sudden and accidental explosion, collapse and underground damage (XCU) to
property of others.
(b)
not less than $1,000,000
damage.
Automobile Liabilitv. Automobile liability insurance with limits
combined single limit per accident for bodily injury and property
(c)
[Reserved]
(d) Workers' Compensation. 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 or "Stop Gap". Coverage shall be at least as
broad as the protection provided by the "Stop Gap" endorsement to the general liability policy.
Coverage shall be for a limit of no less than $1,000,000.
(f) Contractors' Pollution Liabilitv. Coverage shall be in the amount
of $10,000,000, per occurrence and in the aggregate, to cover sudden and non-sudden bodily
injury and/or property damage, including the physical injury or destruction of tangible property,
loss of use, clean up costs and the loss of use of tangible property that has not been physically
injured or destroyed.
(g) Builder's Risk Coverage. "All Risk" Builder's Risk Insurance in a
form at least as broad as ISO form number CP0020 (Builders Risk Coverage Form) with ISO
form number CPI030 (Causes of Loss Special Form) including coverage for collapse, theft, and
property in transit. Coverage shall be endorsed to include 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 appear, of the
County.
(h) 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 occurrence, and for thosc 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:
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29.2.1 Deductibles/Self-Insured Retentions. The deductible and/or self-insured
retention of the policies shall not limit or apply to WMIF's liability to the County. WMIF shall
be fully and solely responsible for any costs or expenses subject to a coverage deductible, co-
insurance penalty, or self-insured retention. WMIF shall disclose any deductible or self-
insurance retentions on WMIF's commercial insurance 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 required insurance policies, the County reserves the
right, but not the obligation, to review and request a copy of the most recent annual report or
audited financial statements for WMIF's parent corporation (Waste Management, Inc.) to
determine whether the retention levels are reasonable, based on the financial capacity of WMIF' s
parent corporation. However, WMIF shall not be required to modify or amend its insurance
coverage or retentions, nor will WMIF be required to obtain bonding, a parent corporation
guarantee, or take other actions with regard to such deductibles or retention, provided WMIF
complies with the other requirements contained herein.
29.2.2 Other Insurance Provisions. The insurance policies required by this
Agreement are to contain and be endorsed to contain the following provisions:
(a) With respect to all liability policies, except Workers'
Compensation and Professional 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 or self-insurance maintained by the
County or its representatives but only with respect to the liabilities assumed under this
Agreement. Any insurance or self-insurance maintained by the County or its representatives
shall not contribute with WMIF's or its construction contractors' insurance or benefit WMIF or
the construction contractor in any way.
(c) WMIF's and its construction contractors' insurance shall apply
separately to each insured against whom a claim is made and/or lawsuit is brought, except with
respect to the limits of the insurer's liability.
(d) The insurance company 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
"Certificate Holder" shall read as follows:
Collier County
Board of County Commissioners
Naples, Florida
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No County Division, Department, or individual names should appear on the certificate. The
certificate shall identify this Agreement and the County's contract number for this Agreement.
29.3 Acceptabilitv Of Insurers. Unless otherwise approved by the County, with
respect to WMIF's insurance obligations:
(a) Insurance is to be placed with insurers with a Bests' rating of no less than
A:VIII or, if not rated with Bests', with minimum surpluses the equivalent of Bests' surplus size
VIII.
(b) Professional Liability, Errors and Omissions insurance may be placed with
insurers with a Bests' rating ofB+:VII.
(c) If at any time the foregoing policies shall fail to meet the above
requirements, as to form 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 the County, meet with the
County to determine if such circumstances indicate that WMIF should procure a new policy to
replace the deficient policy.
29.4 Evidence OfInsurance.
29.4.1 WMIF shall furnish the Project Manager with certificates of insurance and
endorsements required by this Agreement, which evidence and demonstrate compliance with the
requirements of this Agreement, within ten (10) days before the date such insurance is required
to be placed into effect and upon the renewal of any such policy of insurance. All evidence of
insurance must be certified by a properly authorized officer, agent, general agent or 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, WMIF shall allow the County to inspect copies of required insurance
policies at a mutually agreeable time and date.
29.4.2 To the extent that the insurance policies 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 term shall be procured by WMIF.
29.5 Waiver Of Subrogation Required. WMIF shall require the carriers of the required
property insurance coverage to waive all rights of subrogation against the County and its
representatives.
29.6 Failure Constitutes Material Breach. Failure on the part of WMIF to procure or
maintain required insurance coverages shall constitute a material breach of this Agreement. All
required insurance shall be maintained in force at all times.
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Section 30: Force Maieure
30.1 Effect Of Event Of Force Majeure. If a Party is prevented, hindered or delayed
from performing any of its obligations under this Agreement (excluding an obligation hereunder
of a Party to pay money to the other Party, pay insurance premiums when due, or perform any
indemnity obligation) by an event of Force Majeure, then so long as that situation continues, the
affected Party shall be excused from performance of such obligations to the extent it is
prevented, hindered or delayed, and the time for the performance of such obligations shall be
extended accordingly.
30.2 Notice Of Events Of Force Maieure. The affected Party shall notify the other
party within three (3) Business Days of the occurrence of thc event of Force Majeure, its effect
or likely effect on the affected Party's ability to perform its obligations hereunder, and the likely
duration of the event of Force Majeure. The affected Party shall keep the non-affected Party
informed of any changes in such circumstances, including when such event of Force Majeure
ends. Following the receipt of a notice given pursuant to this Section 30.2, the Parties 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 notify the other
Party of any events which may be reasonably expected, ",ith the lapse of time or otherwise, to
become an event of Force Majeure.
30.3 Obligations Following Occurrence 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 Party shall notify the non-affected Party of the remedy or
termination of the event of Force Majeure and the date on which the affected Party will resume
its performance hereunder.
30.3.2 Suspension of any obligation as a result of an event of Force Majeure shall
not affect any rights or obligations which may have accrued prior to such suspension or, if the
event of Force Majeure affects only some rights and obligations, any other rights or obligations
of the Parties. To the extent that the non-affected Party is prevented, hindered or delayed from
performing its obligations under this Agreement as a result of the affected Party's failure to
perform its obligations as the result of the evcnt of Force 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 failure in performance. So long as the affected Party has at all
times since the occurrence of the event of Force Majeure complied with the obligations of
Sections 30.2 and 30.3 and continues to so comply, then any performance deadline that the
affected Party is obligated to satisfy or achieve under this Agreement shall be extended on a day-
for-day basis equal 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
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nevertheless been experienced by the affected Party had the event of Force Majeure not
occurred.
30.4 Termination For Extended Force Majeure. 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 I80-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 events of default
which, if not cured within the time permitted (if any) to cure such event of default, shall entitle
the non-defaulting Party to terminate this Agreement pursuant to Section 31.2:
31.1.1 WMIF terminates or suspends the design, permitting, construction or
operation of the Facility for a period of thirty (30) days in any ninety (90) day period, without the
written consent of the County;
31.1.2 The failure by either Party to make any payment required to be made
under this Agreement when due, where such failure continues for ten (10) days after notice
thereof is given by the non-defaulting Party;
31.1.3 The failure of a Party 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 trustee,
receiver, liquidator, custodian or other similar official of it or any substantial part of its property
or shall consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail 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 Party has an involuntary case or other proceeding commenced
against it seeking liquidation, reorganization or other relief with respect to it or its debts under
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 or any
substantial part of its property 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 federal bankruptcy laws as now or hereafter in effect;
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31.1.6 Any representation or warranty made by either Party in this Agreement
shall prove to have been incorrect in any material respect when made and such failure has a
material adverse effect on the other Party; or
31.1. 7 A failure by WMIF to achieve the Commencement of Construction on or
before the second anniversary of the Effective Date.
31.1.8 A failure by WMIF to achieve the Commercial Operation Date within
twelve (12) months after the Commencement of Construction, unless such failure is caused by a
Force Majeure event or other factors that are beyond WMIF's control, and could not have been
avoided through the exercise of due diligence, and are not the result of any fault or negligence of
WMIF.
31.1.9 The voluntary or involuntary dissolution ofWMIF or any other action that
terminates WMIF's existence as a corporate entity, except the merger of WMIF with WMIF's
parent corporation, a subsidiary, or an affiliate.
31.2 Termination Procedure.
31.2.1 Upon the occurrence of a default that is not cured within the applicable
period (if any) for cure, the Party seeking to terminate this Agreement (the "Terminating 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-Performing Party"). The notice of intent
to terminate shall specify in reasonable detail the applicable default 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 perform that can be cured, the termination shall not take effect so long as the Non-
Performing Party either (1) cures the default within thirty (30) days of receipt of the notice of
intent to terminate, or (2) provides within said thirty (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 default within said one hundred twenty (120) day period ("Cure Period"). Unless
the default 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-
Performing Party, whereupon this Agreement shall terminate on the date set forth in the
termination notice (which date shall in no event be earlier than the date such termination notice is
delivered to the Non-Performing Party). The Agreement may be terminated by a termination
notice based upon a default of Section 31.1.2 if the default is not fully remedied within ten (10)
days ofthe sending of the notice of intent to terminatc.
31.3 Cumulative Remedies. In the event of a default, the Terminating Party may,
subject to this Section 31, pursue any remedy at law or in equity, including tennination of this
Agreement without prejudice to any rights or actions or remedies it may have in respect of any
breach or default of this Agreement or any rights or obligations which expressly survive
termination 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 or
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remedy available at law or in equity, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights and remedies.
31.4 Default by WMIF. If this Agreement is terminated due to WMIF's default, the
County shall retain all rights and title to the LFG generated by the Landfill. Under such
circumstances, the County shall have the sole right to use, sell, transfer, or otherwise dispose of
the LFG generated by the Landfill and the County shall have no obligation to work with WMIF
on the development or implementation of any future LFG projects. WMIF shall cooperate with
the County in its efforts to undertake future LFG projects, and WMIF shall operate the Landfill
and LFG Collection System in compliance with the LOA. The provisions of this paragraph shall
survive the termination ofthis Agreement.
Section 32: Site Restoration
32.1 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 or for WMIF on the Site and the Premises,
and restore the affected portions of the Site to grade level, at WMIF's sole expense, unless the
County in its sole discretion agrees that part or all of the improvements by WMIF may remain on
the Site. With respect to any improvements located underground or below grade, WMIF at its
sole cost shall remove such improvements and restore the Site to grade level, unless the County
agrees that WMIF may secure and abandon in place any or all such improvements. WMIF shall
repair any damage to the Site caused by the removal of improvements.
32.2 Countv's Right To Restore Site. If such removal and restoration is not completed
by WMIF within one 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
incurred 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 each month
during which the County incurs restoration costs, setting forth the amount of the restoration costs
in reasonable detail to verify the work performed and the associated cost of such work. WMIF
shall pay the County the amount set forth in each invoice within ten (10) days of its receipt.
Section 33: Survival Of Obligations
Upon the expiration or termination of this Agreement, this Agreement shall have no
further force and effect, except that any rights and remedies that have arisen or accrued to either
Party prior to such expiration or termination, or any obligations or liabilities that have arisen or
accrued before such expiration or termination shall in each case survive expiration or
termination. For example, the rights, remedies and obligations set out in Sections 35 (Dispute
Resolution), 43 (Notices) and 46 (Miscellaneous) shall survive in full force and effect following
the expiration or termination of this Agreement to the extent necessary to enable a Party to
exercise any of such accrued rights and remedies. Section 28 (Indemnification and Limitation of
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Liability) and Section 32 (Site Restoration), among others, also shall survive in full force and
effect following the expiration or termination of this Agreement.
Section 34: Payment And Performance Bonds
34.1 The Pavment Bond. At least ten (10) days before the Commencement of
Construction, WMIF shall obtain and deliver to the Project Manager a Payment Bond in an
amount sufficient to ensure full payment to all contractors and subcontractors providing services
or materials for the construction 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 the Project Manager's prior
approval, which shall not be unreasonably withheld. The form of the Payment Bond shall be
substantially in the form of Exhibit "C", which is attached hereto. WMIF 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 Statutes, and other Applicable Laws.
34.1.1 The Payment Bond shall be issued by a surety company that 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 Department's list of acceptable sureties for federal bonds. The
Surety shall have been in business and have a record of successful and continuous operation for
at least five (5) years. The bond shall not be canceled or altered without at least thirty (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 default and
termination provisions 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. Calling 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 issuer of the bond shall admit in writing 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 assigrnnent for the benefit of its creditors, consent to the appointment of
a receiver of itself or of the whole or any substantial part of its property, or file a petition or
answer seeking reorganization or arrangement under the federal bankruptcy 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 thirty (30) days of such act or cvent, from another financial
institution that satisfies the conditions set forth in Section 34.1.1.
34.2 The Performance Bond. At least ten (10) days before the Commercial Operation
Date, WMIF shall obtain and deliver to the Project Manager a Performance Bond in the amount
of five hundred thousand dollars ($500,000) to ensure the perfoffilance of WMIF in compliance
with this Agreement. The amount of the Performance Bond shall be reduced to three hundred
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thousand dollars ($300,000) if and 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 Performance Bond.
Section 35: Dispute Resolution
35.1 Dispute Resolution Process. The County and WMIF agree to cooperate 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 informally through negotiations.
If the informal negotiations are unsuccessful, the Parties 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 oflitigation 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 participate 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 Parties shall pay equally for the services of the mediator.
35.2.3 The 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. The 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. WMIF's written request shall be delivered to the Purchasing Director and it shall describe
WMIF's proposed solution for resolving the dispute. The Purchasing Director and the County
Manager may request, and WMIF shall timely provide, any additional information that is
reasonably necessary to evaluate the disputed issue and WMIF's proposal. The County Manager
shall fully and fairly 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 WMIF and discuss its proposal. If
the County Manager rejects WMIF's proposal in whole or in part, WMIF may submit a written
request to the County Manager for an opportunity to present its proposed solution to the Board.
Thereafter, WMIF shall be allowed to present 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 proposal. 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
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Agreement. If the Board rejects WMIF's proposal in whole or in part, WMIF's sole remedy
shall be to pursue litigation pursuant to Section 35.4, below.
35.4 Litigation
35.4.1 Before a Party initiates a lawsuit or legal proceeding concerning a Claim,
dispute, or controversy arising out of or related to this Agreement, the Party shall attempt to
resolve such Claim, dispute, or controversy by using the procedures set forth in Section 35.2 or
Section 35.3 herein. However, either Party may seek interim relief in court if such action is
necessary to preserve the Party's rights hereunder or protect its property during the dispute
resolution process. In addition, if either Party terminates this Agreement for cause, the
Terminating Party shall have the right, in its sole discretion, to proceed directly with litigation of
any Claims or disputes relating to the termination for cause, and such litigation may include
other Claims and disputes unrelated to the termination, and the Terminating Party shall not be
required to submit such Claims or disputes to mediation.
35.4.2 The Parties agree that any Claim filed in state or federal court concerning
this Agreement shall be heard by a judge, sitting without a jury.
35.4.3 THE COUNTY AND WMIF HEREBY KNOWINGLY,
VOLUNTARILY, AND PERMANENTLY WAIVE ANY RIGHT THEY MAY HAVE TO A
JURY TRIAL CONCERNING THE PERFORMANCE, INTERPRETATION, APPLICATION,
OR ENFORCEMENT OF THIS AGREEMENT.
35.4.4 In any litigation concerning this Agreement, the prevailing Party 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, concerning the issues in dispute.
Section 36: Payments Withheld From WMIF
36.1 Grounds For Withholding Pavments. In addition to the remedies provided
elsewhere in this Agreement, the County may withhold part 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 corrected;
(c) WMIF's failure to carry out appropriate instructions or orders of the Project
Manager;
(d) Failure of WMIF to provide schedules, data, or reports requested by the County;
(e) Unsafe working conditions allowed to persist by WMIF; or
(f) Failure of WMIF to make payments to any subcontractor for materials or labor,
which results in a Claim against the County.
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
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that such action is necessary in light of WMIF's problems or failure of performance. The
County Manager's right to withhold payments is limited to such amounts as are reasonable and
appropriate under the circumstances. Before the County Manager exercises the County's rights
under this Section 36, the County Manager shall provide WMIF with written notice of the
problems to be addressed and the County Manager shall give WMIF at least thirty (30) days to
cure such problems. If the problems are corrected within the Cure Period, no 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 on any delayed payment.
Section 37: Operations Durin!!: Dispute
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
perform its duties in strict compliance with the requirements of this Agreement, regardless of the
pending dispute.
Section 38: Liquidated Dama!!:es
38.1 Liquidated Damages. The County and WMIF acknowledge 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 dan1ages set forth hcrein, and the Parties agree that the
liquidated damages are reasonable under the circumstances. WMIF and the County also have
consulted with their legal counsel and confirmed that these liquidated damages are reasonable
and appropriate. Therefore, the following administrative assessments shall constitute liquidated
damages, not penalties, for WMIF's breach of this Agreement.
38.2 Procedure For Assessing Liquidated Damages.
(a) The Project Manager shall conduct an appropriate investigation and
discuss the relevant facts with WMIF 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 performance was (i) excused in
advance by the Project Manager or (ii) due to unforeseeable causes that were beyond WMIF's
reasonable control, and without any fault or negligence of 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 to 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 letter of protest with the Project Manager.
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(d) If a protest is timely filed, the matter shall be referred to the Purchasing
Director 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 agree 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 WMIF's right to contest the Purchasing Director's decision shall be waived.
( e) If a protest is not timely filed by WMIF, or the Purchasing Director
concludes that liquidated damages should be assessed and WMIF does not file a timely request
for non-binding mediation, or the Parties 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. If WMIF fails to timely pay the liquidated damages, the County, at its
option, may deduct the liquidated danlages from the County's next payment to WMIF under the
LOA.
38.3 Grounds For Assessing Liquidated Damages. During the Term, the County may
assess liquidated damages under the following circumstances:
(a) Failure to comply with the provisions in the Operations Manual that affect
envirorunental compliance within five (5) Business Days after receiving written notice from the
Project Manager concerning the deficiency in WMIF's activities, shall result in the imposition of
an assessment of two hundred fifty dollars ($250) per calendar day, unless such failures are
otherwise addressed in this Section 38.3.
(b) Failure to comply with the provisions in the Operations Manual within
two (2) Business Days after receiving written notice from the Project Manager that WMIF's
failure to comply is reasonably likely to cause Objectionable Odors in off-Site areas, shall result
in the imposition of an assessment of one thousand dollars ($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 Project Manager that WMIF's activities on
the Premises are causing such odors, shall result in the imposition of an assessment of two
thousand dollars ($2,000) per calendar day.
(d) Failure to control stormwater, Leachate, or Condensate on the Premises in
compliance with the provisions of the Operations Manual affecting environmental compliance
within two (2) Business Days after receiving written notice of the deficiency from the Project
Manager, shall result in the imposition of an assessment of five hundred dollars ($500) per
calendar day.
(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 from the Project Manager, shall result in the imposition of an assessment of one
hundred dollars ($100) per Business Day.
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(f) Failure to timely file any report or document required herein (e.g., see
Sections 15.5 and 15.6), within five (5) Business Days after receiving written notice of the
deficiency from the Project Manager, shall result in the imposition of a one hundred dollar
($100) assessment for each Business Day that each report or document is late.
(g) Failure to respond to 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 dollars ($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 of LFG used by the Facility, the amount of the Electricity sales, or the amount of the
revenues and other financial benefits from New Tax Credits or Emissions Credits, within five (5)
Business Days after receiving the Project Manager's request to do so, shall result in the
imposition of an assessment of five hundred dollars ($500) for each Business Day thereafter.
G) 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 WMIF 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 information.
38.4 Withholding Funds In Lieu Of Liquidated Damages. If a court 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 accordance with its normal practices. If WMIF subsequently
complies with the applicable requirements of this Agreement, the County shall pay the withheld
amounts to WMIF, 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 Litigation
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, interpret, or apply the provisions of this Agreement,
each Party: (a) irrevocably submits to the exclusive jurisdiction of the state and federal courts in
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and for Collier County, Florida; (b) waives any objection which it may have 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 forum; and (d) waives the right to object that
such court does not have jurisdiction over such Party.
Section 40: Governinl! Law
The laws of the State of Florida shall govern the rights, obligations, duties, and liabilities
of the Parties to this Agreement and shall govern the interpretation and enforcement of this
Agreement.
Section 41: Independent Contractor
41.1 When performing the activities required by this Agreement and the LOA, WMIF
will be acting in the capacity of an independent contractor and not as an agent, employee,
partner, joint venturer or associate of the County. Nothing in this Agreement or the LOA shall
be construed otherwise.
41.2 WMIF shall be solely responsible for the means, methods, and procedures used by
WMIF to perform its duties under this Agreement and the LOA.
41.3 Neither WMIF nor any of its employees, officers, agents or subcontractors shall
represent, act, purport to act, or be deemed to be the agent, representative, employee, or servant
of the County. WMIF shall have no authority to bind the County to any agreement or contract.
41.4 No Person performing any work or services for WMIF under this Agreement or
the LOA shall be entitled to any benefits available or granted to employees of the County.
Section 42: Assil!nment And Transfer Of Agreement
42.1 Assignment Of Agreement.
42.1.1 No assignment of this Agreement or any right or responsibility occurring
under this Agreement shall be made in whole or in part by WMIF without the express written
consent of the County Manager. The County Manager shall have the right to approve or deny,
with or without cause, any proposed or actual assignment by WMIF. Any assignment of this
Agreement made by WMIF without the express written consent of the County Manager shall be
null and void.
42.1.2 In the event that the County Manager's consent to any proposed
assignment is denied, WMIF shall continue to provide all of the services required herein for the
remainder of the Term. If any assignment is approved by the County Manager, the assignee shall
fully assume all of the liabilities ofWMIF.
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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's responsibilities under this Agreement, provided that WMIF shall continue
to be responsible and liable for complying with the requirements contained herein.
42.2 Transfer Of Agreement. The transfer of this Agreement, by transfer of
ownership, transfer of corporate shares, or any other means to effect a change in the ownership
structure of WMIF, shall be effective only after approval by the 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
application to transfer this Agreement shall be submitted jointly by the proposed transferor and
transferee. The proposed transferee shall verify in writing that (a) it will comply with all of the
requirements in this Agreement and (b) it has the financial resources, expertise, equipment and
other capabilities necessary to do so. The County Manager may grant or deny the application for
transfer, or 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 Assigns. The terms and conditions of this Agreement 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 party, or a Party's action requires the approval or consent of the other Party, then: (a) each
such notice shall be given in writing and each such consent or approval shall be provided in
writing; (b) no notice shall be effective unless it is provided in writing and otherwise satisfies the
requirements specified herein for such notice; and (c) the Party from whom approval or consent
is sought shall not be bound by any consent or approval unless 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
forth below or at such other address as such Party may have substituted therefore by notice to the
other Party in accordance with this Section 43.2. All notices shall be either (i) delivered
personally, (ii) sent by facsimile communication, (iii) 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.
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As to County:
Stephen Y. Carnell
Purchasing and General Services Director
Collier County
Purchasing Building G
3301 E. Tamiami Trail
Naples, FL 34112
Telephone: 239-252-8371
Facsimile: 239-732-0844
With a copy to:
County Attorney
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 Management Inc. of Florida
2700 NW 48th St.
Pompano Beach, FL 33073
Telephone: 954-984-2035
Facsimile: 954-984-2057
With a copy to: Ron Kaplan, Assoc. General 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 Fannin Street, Suite 4000
Houston, TX 77002
Telephone: 713-328-7345
Facsimile: 713-287-2423
Both Parties reserve the right to designate a different representative or representatives in the
future, or to change the addressees) for notices, by providing written notice to the other Party of
such change.
43.3 Receipt 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 delivercd, on the date of delivery; (b) in thc case of a notice sent by
facsimile communication, on the day of actual receipt if a Business Day and received prior to
4:30 p.m. at the place of receipt, or if not so received, on the next following Business Day in the
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place of receipt, if the sender's facsimile machine has received the correct answerback of the
addressee and confirmation of uninterrupted 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-recognized overnight courier or delivery service. The
addressee, when requested by the sender, shall promptly provide the sender with facsimile
acknowledgment of receipt, but the delay or failure to give or receive any such acknowledgment
will not affect the validity or effectiveness of the notice, communication, consent or approval.
Section 44. Taxes
44.1 General. WMIF shall pay all Taxes that may be levied upon or assessed against:
this lease of the Premises; the Facility; the Premises; or any other property, including personal
property that WMIF owns or uses in connection with this Agreement. Each Party shall bear all
Taxes imposed on its own income.
44.2 Taxes On The Purchase OfLFG.
44.2.1 As between WMIF and the County, WMIF 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 ofLFG 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 Taxes and other assessments owed by WMIF
and required to be collected by the County. WMIF shall payor 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 taxing jurisdiction, as required by law.
44.2.3 In the event an audit conducted by the Florida Department of Revenue or
other Goverrnnental Authority finds due and owing additional taxes from WMIF's purchase of
LFG from the County, WMIF 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 audit.
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 manner by the County on the
Facility, the sale or purchase of the County's LFG, or WMIF's activities under this Agreement.
However, the provisions of this paragraph do not apply to any Taxes imposed on WMIF by any
other Goverrnnental Authority.
Section 45: Representations And Warranties
45.1 Warranties Bv WMIF. WMIF makes the following representations and
warranties to the County, all of which are made as of the Effective Date, but which shall survive
the Effective Date:
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(a) WMIF is a corporation duly organized, validly eXlstmg and in good
standing under the laws of the State of Florida, is qualified to do business in the State of Florida,
and has the full power and authority to enter into the transactions contemplated hereunder, and to
execute, deliver and perform its obligations under this Agreement;
(b) WMIF's execution and delivery of, and the consummation of the
transactions contemplated by, this Agreement have been duly authorized by all necessary action
of WMIF. This Agreement constitutes a legal, valid and binding obligation of WMIF and is
enforceable against it in accordance with 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 material adverse effect on WMIF or its ability to perform
its obligations under this Agreement. There is no outstanding order, writ, injunction, decree,
judgment or award by any court, arbitration panel or Governmental Authority against or
affecting WMIF or its Affiliates which could reasonably be expected to have a material adverse
effect on WMIF or its ability to perform its obligations under this Agreement;
(d) The execution or delivery of this Agreement, the performance by WMIF
of its obligations hereunder, or the fulfillment of the terms and conditions hereof shall not: (i)
conflict with or violate any provision of WMIF's organizational documents; (ii) conflict with,
violate or result in a breach of, any Applicable Law in effect as of the Effective Date; or (iii)
conflict with, violate or result in a breach of, or constitute a default under or 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 required for the construction and operation of the Facility
in compliance with this Agreement.
45.2 Warranties Bv Countv. The County makes the following representations and
warranties 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 material 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 provisions hereof will not conflict with or constitute a
material breach 01: or default under, any existing law, court or administrative regulation, decree,
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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 court, public board or body pending or, to the best knowledge of the County, threatened
against or affecting the County, wherein an unfavorable decision, ruling or finding would
materially adversely affect the transactions contemplated hereby, or which, in any way, would
materially adversely affect this Agreement or any agreement or instrument to which the County
is a party and which is used or contemplated for use in the consummation of the transactions
contemplated hereby.
Section 46: Miscellaneous
46.1 Modification 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 modification to this Agreement must comply with the County's purchasing policies
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 or remedy accruing to such Party upon the occurrence 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 construed to be a waiver of any such breach or default, or an acquiescence
therein, or of any similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the
part of any Party hereto of any such breach or default under this Agrecment, 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 to the extent
specifically set forth 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-Making Bv The Parties. Except where this Agreement expressly
provides for a different standard, whenever this Agreement provides for a determination,
decision, permission, consent or approval of a Party, the Party shall make such determination,
decision, grant or withholding of permission, consent or approval in a commercially reasonable
manner and without unreasonable delay. Any denial of an approval, permission, decision,
determination or consent required to be made in a commercially reasonable manner shall include
in reasonable detail the reason for the denial.l
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46.5 No Third Partv Beneficiary. This Agreement is for the sole and exclusive benefit
of the Parties hereto and shall not create a contractual relationship with, or cause of action in
favor of, any third party.
46.6 Severability And Partial Invaliditv of Agreement. The provisions contained in
this Agreement shall not be construed to require the County or WMIF to take any action that is
contrary to any Applicable Law. Should any provision, paragraph, sentence, word or phrase
contained in this Agreement be determined by a court of competent jurisdiction to be invalid,
illegal or 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 ifnot modifiable, 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 construed as if such invalid,
illegal, void or unenforceable provision had never been contained herein. To the extent
permitted by law, the Parties hereby waive any provision of law that renders any provision
hereof prohibited or unenforceable in any respect. If this waiver is ineffective and part of this
Agreement is declared invalid, the Parties 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 and completion of this Agreement and shall not have any right to
claim or seek reimbursement of such costs and expenses from the other Party.
46.8 Specific Performance. Notwithstanding the dispute resolution procedures set
forth in Section 35, and except as the context specifically otherwise requires, if a Party 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 agrecd that any such breach or threatened breach will cause irreparable injury
to the other Party and that money damages will not provide adequate remedy. All rights under
this Section 46.8 shall be in addition to, and not in lieu of, any other rights and remedies
available to either Party at law or in equity, all of which shall be independent of the other and
severally enforceable.
46.9 Time Is Of The Essence. Except as the context specifically otherwise requires,
time is of the essence with respect to all dates and time periods set forth in this Agreement.
46.10 Exhibits Incomorated Into Agreement. Exhibits "A" through "E" to this
Agreement are incorporated by reference into and shall form part of this Agreement. These
exhibits shall have full force and effect as though they were cxpressly set out in the body of this
Agreement. However, in the event of any conflict or inconsistency between the terms,
conditions and provisions of this Agreement (excluding the exhibits) and the exhibits hereto, the
terms of this Agreement (excluding the exhibits) shall prevail and govern.
46.11 Counterparts. This Agreement shall not be executed in counterparts (including
facsimile copies).
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46.12 Entire Agreement. 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 incorporates and includes all prior negotiations, correspondence, conversations,
agreements and understandings applicable to the matters contained in this Agreement. The
Parties agree that there are no commitments, agreements or understandings concerning the
subject matter of this Agreement that are not contained herein. Accordingly, it is agreed that no
deviation from the terms of this Agreement shall be predicated 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 Headings. Headings in this Agreement are for convenience of reference only and
are not to be considered in any interpretation of this Agreement.
46.14 Interpretation Of Agreement. Both Parties acknowledge that they are represented
by legal counsel 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 Party that physically prepared this Agreement. The rule sometimes
referred to as "Fortious Contra Proferentum" shall not be applied to the interpretation of this
Agreement.
46.15 Sovereign Immunitv. Nothing in this Agreement shall be interpreted or construed
to mean that the County waives 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 WMIF's performance, shall not constitute a waiver of the County's
right to pursue any other remedy or a waiver of its right to pursue a remedy for any future failure
by WMIF. No remedy conferred by this Agreement is intended to be exclusive of any other
remedy. Each and every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or 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: Equal Opportunity Emplovment And Immie:ration Laws
47.1 Equal Opportunity Emplovment. 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 affirmative steps to
ensure that applicants are employed and employees are treated during employment by WMIF
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without regard to race, color, religion, sex, 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. WMIF agrees to furnish the County with a copy of its
Affirmative Action Policy, upon request.
47.2 Immigration Laws. By executing 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 Reform and Control Act of 1986, located at 8
D.S.C. 1324, et seq., and regulations relating thereto, as either may be amended.
Section 48: Compliance With Labor Laws
WMIF shall comply with all Applicable Laws concerning the protection and rights of
employees, including, but not limited to, the Occupational Safety 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 Party shall have no right or claim to any
pension, workers' compensation, unemployment compensation, civil service or other employee
rights or privileges granted to the officers and employees of the other Party. Each Party shall
have the sole responsibility for paying any wages and providing any employment benefits to
such Person.
Section 49: Fair Dealing
Each Party declares and warrants that it enters into this Agreement without reliance on or
engaging in any collusion, bribery or fraud, that all of the Party's representations in this
Agreement 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 or indirectly benefit by more than I % 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 any company or Person, other than
a bona fide employee working solely for WMIF, to solicit or secure this Agreement, and WMIF
has not paid or agreed to pay any Person, company, corporation, individual or firm, other than a
bona fide employee working solely for WMIF, any fee, commission, percentage, gift or any
other compensation contingent upon or resulting from 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 287.134, Florida Statutes, for a public entity crime.
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IN WITNESS WHEREOF, the Board of County Commissioners of Collier County, 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
'~ .1( f~',()
By:
Depu~y Crerk ",
Attest II to ~ _ ,
s 1 Qna.ture on.,. .:
~dafof nn.(~W-
".',.;. ~~~~~,.
By'
TOM HENNING, CH
,2008
Approved as to form and legal sufficiency:
By: '\\
Jennifed3elpedio, Esq.
Assistant County Attorney
. +t., ~
(2 day of ..-e A' -"/lVJ;...uL.-, 2008
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WITNESSES: WASTE MANAGEMENT INC.
~ OF FLORIDA, a Florida corporation
BY: 71~( /~-- BY:(~~
Signature Signature
.'&.1e1 ~. 601/1 ~, ~...,.. ~~~ ~...." ~~
Print Name and Title ' Print Name and Title
~ day of "lee... . 2008 ~ day of }oM u \.~ ,2008
~~n~~~ ~
~\ALI'~ V~a...
Print Name and Title
CP day of ~ .2008
Y
STATE OF FLORIDA )
~~ ) SS:
COUNTY OF ~8LLI~ )
BEFORE ME, an officer dul authorized by law to admini~~e acknowledgments,
personally appe fol~ as ~ ILJ!.tt1 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 official of Waste
Management Inc. 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.
IN WIlNESS OF THE ~GOING, I have set my hand and official seal at in the State and
County aforesaid on this ~ day o~ 2008.
~~
~.~ 8U8Nl CHAlSTAJOINION
_. MY COIIlISSIOH I DD47!048
· . EXPIRES: JonuIIY 2t. 2010
'>.i.... _llN",__
My Commission Expires:
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Exhibit "A" to Landfill Gas Sales Al!:reement and Ground Lease:
Definitions
Table of Contents
Agreement ........ ............... .......... ... ................. .......................... ... ........ ............... ........... ... .......1
Alternative Energy Iax Credit.. ... ... ............. .......................... ......... ... ........ ....... ........... ........ ..1
Applicable Law......................... ... ... ........... .............. .............. ......... ... .................................. ..1
Approved Rate. ......................... ...... ... ........... ..................... .... ...... ........................................ ..1
Billing Period... .... ..................... ................... ............ ........ ....... ........... ........... .... ................... ..1
Board.. ...... ........ .... ............... ...... ... ........................ .... .......... ..... ...................... .... ........ ........... ..1
BID........................................................................................................................................1
Business Day........ ..................... .............................................. ........... ........... .... ........... ........ ..1
Change in Law.. .... ........ ... .............................. .......... ............... .......................... ........... ........ ..1
Citation...................................................................................................................... .............2
Claims.... ........ ....... ........ ... ............. ............. ... ........... .......... .... ...... ... ... ........... ......... .............. ..2
Commencement of Construction............................................ .......................... ................... ..2
Commercial Operation..... .......................... .............. .......... .... ............ .................................. ..2
Commercial Operation Date . ................................................ ................................ ................2
Condensate................................... ............................ .......... .... ...... ...... ............... ................... ..2
Contingency Plan.......... ... ........................................ ............... ........... ........... .... ................... ..2
County..... ................................................................. ............... ...................... .... ........ ........ ... ..2
County Manager. ........... ... ............ .................. ......................... .......................... ........ ........... ..2
Cure Period..... ... ............................................ ......................... .................................. ........... ..2
Director...................................................................................................................... ............2
Effective Date......................... .................... .... ......... .............. ............ .................................. ..2
Electricity.................................................................................................................... ...........2
Electricity Sales Payment......................................... ........................................................... ..3
Emissions Credits. ........... ......... ................... ............... .................................... ........................3
~~C......................................................................................................................................3
Facility .............................................................................................................................. .....3
FDEP ... .... ....... ............ .................................................. ........ ............ .............. ........................3
Flared Gas .. ........ ................................................................... ............ .....................................3
Force Majeure............................ ................................... .........................................................3
Gas Sales Payment.................. ................................. ..............................................................4
Governmental Authority............................. .............. ............. ................................................4
Grid........................................................................................................................................4
Hazardous Waste ...................................................... .............................................................4
Initial Ierm .................................................................................................. ..........................4
Interconnection ................................................................................................................ ......4
Landfill........................................................................................................................ ...........4
Landfill Gas..... ......................................................................................................................4
Landfill Operation Agreement............................................................................................... 5
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LFG........................................................................................................................................5
LFG Collection System.. ............ ......... .................... .......................................... .....................5
LOA.......................................................................................................................................5
Local Government Prompt Payment Act....... ...................... ................................ ..................5
Metering Equipment...... ............ .......................................... ........................................... ... ....5
MMBTU ................................................................................................................................5
New Tax Credit. ............... .............................. .......... ............ ....... .................................... .......5
Non-Performing Party................. ... ................ .......... ..................................................... ..... ....5
Objectionable Odor ...... ............... ............... .... .......... ............ ......................................... ..... ....5
Operating Year .. .......... ............... ...... ............. ........... ............ ..................................... ........ ....5
Operations Manual...... ............ ......... ...... ... ........ .................. ....... ...... ...... ....5
Operator .............................................................................................................................. ...5
Ordinance ....... .............. ............ ... ...... ... ....... .......................... .............. ............ ... .......... ...... ...6
OSHA.....................................................................................................................................6
Party or Parties................................... ....... ... ........................... ......................................... .... ..6
Payment Bond ......... ............ ... ........ ................ .... ..... ......... ...... ....... ..... ......6
Performance Bond...... .... .............................. ............................................................ .............6
Permit . ........................................................... ...................... .................... ......................... ... ..6
Person........................................................................................................................ .............6
Pollution...................................................................................................................... ...........6
Premises .......................................................... ..................... ................................................ ..6
Project Manager.. .................................. ...... ......................... ....... ......................................... ..6
Purchasing Director.............................. ...... .................................................................... ..... ..6
Records. ............... .............................. ... ............................................... ........................... .......6
Renewal Term.................................... .......... ...................................................... ............. .......6
SCF ........................................................................................................................................6
Security Chief ................. ........... ......... .......... ............. ............ ......... .............. .................. .......6
Site .........................................................................................................................................7
Site Superintendent....... ................................. .................................................. ......................7
Solid Waste................... ........... ............................................ ............................................... ... 7
Tax.........................................................................................................................................7
Term ....... ... ....... .... .......... .................... ..................................................................... .......... .....7
Terminating Party............................... ......... .......... ................................................................ 7
WMIF.....................................................................................................................................7
WMRE ...................................................................................................................................7
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Exhibit "A" to the Landfill Gas Sales Agreement and Ground Lease:
DEFINITIONS
Whenever the following words and expressions are used III the Agreement, they shall be
construed in the manner set forth below:
Ae:reement shall mean this "Landfill Gas Sales Agreement and Ground Lease" between the
County and WMIF.
Alternative Enere:v Tax Credit shall mean the tax credit for producing fuel from a
nonconventional source, as described in Section 29 of the Internal Revenue Code of 1986, as
amended (26 U.S.C. 9 29, renumbered as 26 U.S.C. 9 45K). The Alternative Energy Tax Credit
currently is ten dollars ($10.00) per megawatt-hour, it is available for those qualifYing facilities
that are in service by December 31, 2010, and it is available for ten (10) years -- i.e., through
2020.
Annlicable Law shall mean any local, state or federal statute, law, constitution, charter,
ordinance, judgment, order, decree, permit, rule, regulation, directive, policy, standard or similar
binding authority, or a judicial or administrative interpretation of any of the same, which are in
effect or are enacted, adopted, promulgated, issued or enforced by a Governmental Authority
during the term of this Agreement, and relate in any manner to the performance of the County or
WMIF under this Agreement.
Ann roved Rate shall mean one percent (1%) per month (i.e., twelve percent (12%) per annum)
or the maximum interest rate allowed by law, whichever is greater.
Billine: Period shall mean each calendar month after the Commercial Operation Date, except that
the first Billing Period shall begin on the Commercial Operation Date and the last Billing Period
shall end on the date when this Agreement expires or is terminated.
Board shall mean the Board of County Commissioners of Collier County, Florida, or the
Board's designee.
BTU shall mean the amount of heat required to raise the temperature of one avoirdupois pound
of pure water from 60 degrees Fahrenheit to 61 degrees Fahrenheit.
Business Day shall mean each Monday, Tuesday, Wednesday, Thursday, and Friday that is not a
legal holiday, as designated by the County.
Chane:e in Law shall mean the adoption, promulgation, or modification of any Applicable Law
related to compliance with environmental laws and regulations (including but not limited to air
quality) or the operating permit(s) that govern the Facility after the Effective Date, which
directly and significantly affects WMIF's or the County's performance under this Agreement. A
Change in Law does not include a change in any tax law, workers' compensation law, or the
Occupational Safety and Health Act.
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Citation shall mean any warning letter, notice of violation, cease and desist order, or similar
document concerning a civil, criminal, or administrative enforcement proceeding involving the
Facility.
Claims shall mean any and all demands, actions, causes of action, proceedings, judgments,
awards, debts, deficiencies, liabilities, damages, costs, expenses (including but not limited to
reasonable attorneys' fees and costs of investigations, mediation, and litigation, whether at trial,
on appeal, or otherwise), penalties and fines.
Commencement of Construction shall mean the date when WMIF begins the construction of
the Facility in a continuous manner and on a full-time basis. The Commencement of
Construction shall not occur until after WMIF obtains all of the Permits necessary for the
construction of the Facility and issues a notice to proceed to WMIF's contractor.
Commercial Oneration shall mean that (a) WMIF has successfully completed testing, startup,
shakedown, and related commissioning activities involving the gas processing and electric
generation equipment at the Facility and (b) the Facility is capable of processing LFG and
generating Electricity on a continuous, full-time basis, at the Facility's design rated capacity.
Commercial Oneration Date shall mean the date when the County receives WMIF's written
notice that the Facility is commencing Commercial Operation.
Condensate shall mean water and other liquids collected or derived from the Landfill Gas
delivered to the Facility.
Contine:ency Plan shall mean WMIF's plan for avoiding an interruption in the Facility's
operations in the event that a storm, accident, malfunction, or emergency disrupts or hinders
WMIF's normal operations.
County shall mean, depending on the context, either (a) the geographic area contained within
Collier County, Florida or (b) the government of Collier County, acting through the Board or the
County's employees and agents.
County Manae:er shall mean the County Manager of Collier County, Florida, or the County
Manager's designee.
Cure Period shall mean the time period in which a Party may cure a default of the Agreement
pursuant to Section 31.2 or Section 36.2 herein.
Director shall mean the Director of the County's Solid Waste Department or the Director's
designee.
Effective Date shall mean the date when this Agreement is signed and duly executed by the
Board, which shall occur after the Agreement is signed and duly executed by WMIF.
Electricity shall mean the electrical energy transmitted from the Facility to the Grid, whether
sold as "as available" energy, or baseload "capacity", or in some other fashion. Electricity
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101
includes the economic benefits (e.g., renewable energy credits and certificates) attributed to the
generation of electrical energy with LFG, but Electricity does not include Emissions Credits.
Electricity Sales Payment shall mean the payment from WMIF to the County, pursuant to the
Agreement, based on the sale of Electricity generated by the Facility.
Emissions Credits shall mean all credits, offsets, and allowances generated by or derived from
the collection, distribution, sale or use of the County's LFG, or the use of the Facility. Such
emissions credits, offsets and allowances shall include, but not be limited to, those credits and
allowances for reductions of sulfur dioxide and other sulfur compounds, acid rain precursors,
methane, carbon dioxide, carbon monoxide, chlorinated hydrocarbons and other carbon
compounds, nitrogen-oxygen compounds, other greenhouse gases, other ozone precursors,
particulate matter, metals and toxic air pollutants.
F.A.C. shall mean the Florida Administrative Code.
Facility shall mean the LFG processing and electrical generating facility to be owned and
constructed by WMIF on the Premises, whether completed or at any stage of its construction,
including without regard to level of development: all gas processing or energy producing
equipment (including electric generating equipment) and auxiliary equipment; fuel storage and
handling facilities and equipment; an electrical switchyard, Interconnection facilities and electric
transmission line; all pipelines, compressors, and flares (if any) located on the Premises; security
fencing; and all other improvements related to the gas processing and electrical generating
facility.
FDEP shall mean the Florida Department of Environmental Protection.
Flared Gas shall mean the LFG that is burned in the flare(s) at the Site.
Force Maieure shall mean the following events or circumstances, but (a) only to the extent that
they directly, materially, and adversely affect the ability of the County or WMIF to perform any
of its obligations under the Agreement, and (b) only if they were not attributable to the acts,
neglect, omission, breach of contract or statutory duty, or willful misconduct of the affected
Party, and ( c) they could not have been prevented, overcome, or remedied by the affected Party
through its exercise of reasonable diligence under the circumstances:
(a) An act of God, tornado, hurricane, flood, fire, explosion, landslide, earthquake,
epidemic, and extremely abnormal and excessively inclement weather;
(b) Acts of public enemy, acts of war, terrorism, insurrection, riots, civil
disturbances, or national or international calamities;
(c) Suspension, termination or interruption of utilities necessary to WMIF's
operation or duties under this Agreement;
(d) An injunction, or a legal or equitable proceeding brought against the County or
WMIF, or a Change in Law; and
Pagc 3 of7
lOt
(e) Any act, event, or condition, which is determined by mutual agreement of the
County and WMIF to be of the same general type as the events of Force Majeure
identified in the preceding paragraphs.
Labor disputes, labor shortages, changing economic conditions, and the economic hardship of
WMIF shall not be considered an event of Force Majeure.
Gas Sales Payment shall mean the amount to be paid by WMIF to the County pursuant to this
Agreement for the sale of LFG by the County.
Governmental Authority shall mean any local, municipal, district, county, regional, state,
federal, or other governmental agency, department, board, authority, bureau, or other entity that
has jurisdiction over any aspect of the Facility or the Parties' activities under the Agreement.
Grid shall mean the electric transmission lines, substations, and related equipment and facilities
that are owned by third parties and used to transmit Electricity from the Facility to retail and
wholesale customers.
Hazardous Waste shall mean Solid Waste, or a combination of Solid Wastes, which, because of
its quantity, concentration, or physical, chemical, or infectious characteristics, may cause, or
significantly contribute to, an increase in mortality or an increase in serious irreversible or
incapacitating reversible illness or may pose a substantial present or potential hazard to human
health or the environment when improperly transported, disposed of, stored, treated, or otherwise
managed. Hazardous Waste includes any material or substance identified as a Hazardous Waste
or hazardous substance in the Florida Administrative Code, Florida Statutes, or other Applicable
Law. The term does not include human remains that are disposed of by a Person licensed under
Chapter 497, Florida Statutes.
Initial Term shall mean the period commencing on the Effective Date and terminating at
midnight at the end of the twentieth (20th) Operating Year following the Commercial Operation
Date.
Interconnection shall mean any pipeline, electrical transmission line, or other linear system,
including all related equipment, that connects the Facility to an on-Site or off-Site system that
supports the operation of the Facility. Interconnections include but are not limited to the systems
and equipment used to connect the Facility to the Grid, the LFG Collection System, the
Landfill's leachate disposal system, and water, wastewater and electric utility systems.
Landfill shall mean the areas at the Site that have been used in the past, are being used currently,
or will be used in the future for the disposal of Class 1 Waste, as defined in FDEP Rule 62-
701.200(13), F.A.C., except Cells 1,2, and 4, as identified on Figure I in Exhibit "B".
Landfill Gas shall mean (a) methane, carbon dioxide and other gases produced by the anaerobic
decomposition of waste material within the Landfill, and (b) any and all other materials,
including entrained liquids, recovered in association with the collection of such methane, carbon
dioxide and other gases.
Page 4 of7
lOL
Landfill Oneration Ae:reement shall mean the "Landfill Operation Agreement between Collier
County and Waste Management Inc. of Florida" dated February 7, 1995, and all of the
amendments thereto.
LFG shall mean Landfill Gas.
LFG Collection System shall mean the pipes, headers, pumps, fans, and related equipment used
to collect and transmit LFG from the Landfill to the Facility or flare.
LOA shall mean the Landfill Operation Agreement.
Local Government Promnt Payment Act shall mean the Local Government Prompt Payment
Act contained in Section 218.70, et. seq., Florida Statutes. If the Local Government Prompt
Payment Act is repealed, in whole or in part, such repealed portions shall continne to apply to
this Agreement, unless such portions violate Applicable Law.
Meterine: EQuinment shall mean the meters, measuring devices, and other related equipment
used to measure the volume of LFG delivered to the Facility, the amount of methane in the LFG,
and the amount of Electricity transmitted from the Facility to the Grid.
MMBTU shall mean one million (1,000,000) BTUs.
New Tax Credit shall mean any state, federal or other tax credits or similar financial incentives
that are adopted, increased or expanded by a Government Authority after the Effective Date.
New Tax Credit does not include the Alternative Energy Tax Credit.
Non-Performine: Party means a Party that is not performing III compliance with the
requirements in this Agreement.
Notice to Proceed means the formal notification by which the County tells WMIF to start work
on the Project, which shall be issued subsequent to the Effective Date.
Obiectionable Odor shall mean any odor present in the outdoor atmosphere which by itself or
in combination with other odors, is or may be harmful or injurious to human health or welfare,
which umeasonably interferes with the comfortable use and enjoyment of life or property, or
which creates a nuisance.
Operatine: Year shall mean the period beginning on the Commercial Operation Date and ending
on the day immediately preceding the anniversary of the Commercial Operation Date and each
twel ve (12) month period thereafter.
Operations Manual shall mean the operations and maintenance manual that WMIF shall
prepare for the Facility pursuant to Section 4.10 of the Agreement.
Operator shall mean the WMIF employee that is responsible for the day-to-day operation of the
Facility.
Page 5 of7
lOt
Ordinance shall mean the County's Code of Ordinances.
OSHA shall mean the Occupational Safety and Health Act and all implementing regulations.
Party or Parties shall mean, depending on the context, either the County, WMIF, or both.
Payment Bond shall mean the financial security furnished by WMIF as a guarantee that WMIF
will pay all of the costs and expenses (e.g., materials, labor, etc.) associated with the construction
ofthe Facility.
Performance Bond shall mean the financial security furnished by WMIF as a guarantee that
WMIF will operate the Facility in accordance with the terms of this Agreement.
Permit shall mean any and all permits, licenses, approvals, franchises, and other authorizations
required by a Governmental Authority for the activities contemplated under the Agreement.
Person shall mean any and all persons, natural or artificial, including any individual, firm,
partnership, joint venture, or other association, however organized; any municipal or private
corporation organized or existing under the laws of the State of Florida or any other state; any
county or municipality; and any governmental agency of any state or the federal government.
Pollution shall have the meaning provided in Section 403.031(7), Florida Statutes.
Premises shall mean the real property where the Facility will be located on the Site, as generally
depicted and specifically described in Exhibit "B" to the Agreement.
Proiect shall mean the group of activities required to achieve Commercial Operation of the
Facility, including, but not limited to, obtaining the required permits.
Proiect Manae:er shall mean the County employee that is the County's primary representative
regarding matters that pertain to this Agreement and the construction of the Facility. The
"Project Manager" also includes the County employee that serves as the County's "compliance
manager" with regard to the operation of the Facility.
Purchasine: Director shall mean the Collier County Purchasing and General Services Director.
Records shall mean books, files, reports, correspondence, test data, and all similar documents
and information, whether stored electronically or otherwise.
Renewal Term shall mean a period of time when the Term of this Agreement is extended,
following the Initial Term.
SCF shall mean one standard cubic foot of LFG, subject to the conditions described in Section
10.1 of the Agreement.
Security Chief shall mean the Security Chief of the County's Government Security Section in
the Facilities Management Department.
Page 6 of7
lOt
Site shall mean the land that is owned by the County and located at 3750 White Lake Boulevard
(East Y:, of Section 36, Township 49 South, Range 28 East, Collier County, Florida). The Site
includes the Premises.
Site Sunerintendent shall mean the WMIF employee that is responsible for WMIF's day-to-day
operations on the Site.
Solid Waste shall mean sludge that is not regulated under the federal Clean Water Act or Clean
Air Act, sludge from a waste treatment works, water supply treatment plant, or air pollution
control facility, or garbage, rubbish, refuse, special waste, or other discarded material, including
solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial,
commercial, mining, agricultural or governmental operations.
Tax shall mean each federal, state, local and other net income, gross income, gross receipts,
sales, use, ad valorem, business or occupation, transfer, franchise, profits, withholding, payroll,
employment, excise, property or leasehold excise tax, customs, duty or other fee, assessment or
charge of any kind.
Term shall mean the period of time when this Agreement is in effect. The Term includes the
Initial Term and any Renewal Term.
Terminatinl!: Party shall mean a Party seeking to terminate the Agreement
WMIF shall mean Waste Management Inc. of Florida.
WMRE shall mean Waste Management Renewable Energy, an affiliate ofWMIF.
Page 7 of7
lOt
EXHIBIT "B" TO LANDFILL GAS SALES AGREEMENT AND GROUND LEASE:
Site Location
1. Site Map
2. Legal Description of the Premises
B-1
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NOTES:
1. THIS IS tJJOT A SUR\JEY.
2. QrARINGS; AR~ B1.!&:n i:JII 11-11,;: r:As:T UNr
or:- S!;:CTI0~ 3S AS B!;:II\IG tJJ[]0"17'sgR'1I,I.
J, SlJBIECT TQ EA5EMEHTS, RESERVA]ONO
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"
"
PARCEL LOCATED AT
COLLIER COUNTY LANDFILL
CONSERVATION AREA
SECTION 36, TOVINSHIP 49 SO~TH. RANGE 26 EAST
caw rn CCUNTY. FLORIDA
I ~ 'I I ' I - , . I I
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Clf SECllCl!.l 3.s 36 I 31
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SURVEYOR'S CERTIFICATION:
BDrT}' E. Sfron (f17 iha fTrm ~
Pnlo~mDI Lend 9.JMll'Dr RcrldiJ ~rtJf1oDm ~jlOl.. S3f35
DD~ :Signed:
!.Ilrt '.mila Illth/lut thlll algn/ltLroll Ill'lli thll IlI1'g"rlDI rolllClll
;1iICII ~o:I Flc:tl:lll Llo9nncl a.!rvvY'ilrand h1Qppu
SImTCH AND IlBSCRlPIlON
O~lE SlEET
l1/DI!I 2: tF 2
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DESCRIPTION:
~
A PARCEL OF LA~D LOCATED IN 5ECTlON .3.':1, T'O\'lNSHIP 4iI SClUTH. RAN'GE 28 EA.ST. oo...UER
CDJNlY, fU]R1DA AND SEmG MORE: PARTlCULARL Y DESCRIBED AS f'ClLLOWS:
CCN~EI:lCE AT ntE 9ClJTHEAST OORNER af SECTlCN 3&, lDWNSHIP 4.Q SCIU1l-I, RANGE 2B EAST,
ca...urn CClUNTY', FLOOIDA Ap.JD RUN NClR1l-4 [101759" WE:~ ALCNG Tl-lE: EAST UI.IE Of SAID SECTlClN
Jll, A DISTANCE OF 14'01.50 FEET; lHENCE 50UlH e~'4Z'D1" \\EST, A DI5TMCE OF '1JJ.JO FEEr TO
THE POINT OF BE~NPJINC; THENCE SOUTH CO"JO"4-J." EAST. A DISTANCE OF lS4.i9 FEET TO lHE
paNT CF CURVATURE OF r.. CURVE OONCAVE M:STIRLY J1N[} HAVlNG: A RADIUS OF 5ClQ.CO FEET. A
CElfTRAL ANClE OF 04"07'.39" AND A tHMD BEAAINQ AND DISTANt::E OF SOUTH 01'33'os.. v.lEST.
JiS.01 FEET, RESPEI:Tl1,.ELT:: THENCE SOUTHERLY PLONG SAID OJRVE, AtlI .FIR!; DISTANCE OF .3Ei,02
FEEl TO THE POINT OF TAAlGrnCY Of SAID WRVE: THENCE SCUlli 03"Jij':!i~!( 'AE5T, A DISTANCE OF
119.96 fEET 10 TIlE paNT CF a.JRV"Aru~ OF A.. CURVE OO!\J[:AVE M$TERL'f MID HA\I1NI;; A RADIUS
OF 125..00 FEET, It. CEPHRAL ANGLE l:f" 11'7'4, AND A I::H[R1l BEARING AI.ID llISTANCE CF OOUTH
09'5"46- WEST, 24.1!I1 ~E:l" ~PE:c:T1\oEL"'; THEI.ICE SOUTHE.RLY ALOOG SAJD 1::tI~ A~ ARC
DISTANCE ClF 24...84- F~ m THE POINT OF CCMPClUI.ID c:tJRIJATURE CF' A I::URIJE CaIICA.1JE.
NOIHHMSlERLY AND HAIJlPiG A RADIUS OF '42,'9~ FEET, A r;fNTF!AL ANGlE .oF 12"50'<<1" APiD Po
CHORD BEAPJNC ANI> D1ST/lNCE Cf SOUlH 21"2.O"C~" I'.EST, 31.98 FEET, RESPECllVELY; lHENCL
SOOTHYESITRLY ALONG SAI~ CURI-E. I>N ARC DIST/>1;OE (Jf J2.Q5 FEET TO THE POINT OF
C~POUND CURVAru~E CF ,., CUR\E CCl\lC~\.E NOIHHWESlERl'r' AND HAVlNC A RADIUS OF 30.00
FEET. A CENTRAL mGLE OF 57'14-'.36- AND A (}iORD BEARING AND DISTANCE OF Sll.JTH 55'2:?.46w
'/.E'5T, 28.74 fEET, RE5PE~VELY; THENCE 5[1JTHWE5TERLY ALONG: SAID CUR~ Pill ARC DISTANCE
Clf Zg.1iI7 FEET 10 THE FOIlH Of CCWlpaUND CURVATIJRE Cf"" A CURVE: C[l'IiCA.\E NORlHffiLY ANIl
HAVING; A RADIUS Clf 753.46 fEET. A. CE~TRAL ANGLE Cf'" 07"45"0" AND A I::H~[] BEARING p,~D
DISTANCE elf SOUTH BB'S2"3S- Il.EST, 10l.BB FEET, RESPECl1VELT';; lHENt::E ~P.LY AUJtHi SAIIl
CURVE., AN ARC; DISTANCE or: 101-1:150 FE.ET TO 1HE PClINT ClF COIl1PClU~O ClJRVA.1URE OF A OJR:VE
COOC;A.VE NORTHEASTERL'f AND HA\olNG A IUlDIUS O!="' 15..[]O FE.ET" A CEI.ITRAL ANCLE a:- 87".3:3'58"
AND A CHORI> ElIEPRIr.JC AND DISTANCE OF NORTH 43'"'27'4i- WEST, 2.0,']6 FEET, RESPEC1l\.8... Y;
THENCE NORTHWESTERLY" PJ..~G SAID CURVE, AN ARC DISTANCE OF 22,92 FEET TO THE P~NT CF
TAt"4GENOY OF SAJD C:UR~ THENCE NORiH 00'9'09- E,!ST, ~ DISTANCE OF 4C1o.BO FEET TO THE
P~NT CF CURVAruRE OF ~ CURVE CONCAI,o[ SOUTHEASTERLY AND HAVINC A R,t.I)IUS a= 2..5.00
FEET. It. CENTRPL PNGLE OF 87"11'54. ANO A CHORI) BEARING AND DISTANCE OF NORTtI 43'55.0JH
EAST, 34.4f1 FEET, RESPECn\fl..'r,: l1iENCE t(~lHEA51ERLY AL[l'IiG 5MD I::UR\E" Atl AI<<: DISTANCE
Clf .34-.4B FEET 10 "THE POI~T Of TA~GENC'f Of SAlD CUR\.E: lHENCE f<JDRTH B7":31"{]4- - EAST" A
DISTMlCE Of ;;5B..'2 FEET TO THE PDI~T Of CURVAlURE OF A CUR\oE O!lN[:A\oE sx:JUl1i~ESTER1..'f At.lD
HAVING A RADIUS; Of 150.00 fEET, A CE~TRAL ANGLE if 32""35- A~[) A CH~O BEARlt.lG AND
DISTANCE: OF SOUlll 7B"23"09" EAST, 83..18 I="!::E:T, R~r::C1l~LYi lllENCE SOOlllEA~RL'f AL...CI~G
Sl-JD ~~RVE. PN ARC DISTANCE CF l\3.16 FEET TO THE P<JINT OF COtAPDUND ClJRVAT1.JRE OF A
CURI,o[ CONCAVE &1UTHWESTERl'f AND HA'vINC A RADIUS OF JS.OCl FEET, A CENTRt>L Nl!GlE Cf"
59"46'39- NIID A o-lORD BEARING AND OISTNIJCL OF SOUiH 30"24'D2- EAST, J4-.Bet FEET.
RESPECnlJ8...Y; THENCE SOUTHEASTERLY ALONG SAID CUR~ ,toN ARC DISTAt"40E Cf'" J6..52. FEET TO
mE SAID POINT .oF BEaNNINIl.
~
~
~
.i
:c C[JlJTAlNIPJG 6.E1,7E11 SQUARE FEET OR 1..o.e ACRES elF Li'ttm, NCfi'E Cfi' Lfs:5.
~
~
~
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!
~
~ NOTES:
., 1. TH 15 15 NOT A 5UR\H.
" ~,BEAAING5 ARE B~ '" THE EA5T UNE
:;; Of" SEC110N .36 /lS BEING NCl0"17'5Q"w"
it 3, SUBJECT TO EASEMENTS. RESERVAllONS
MIlO RESTRICTIONS CF RECORD.
4, Nor VALID II.IlHDUT 5H EEl" 1 OF t
;. SHEETS.
..
" : II 1-," II
EN GIN EERIN G
2<JI5CI STAI.FIF!D COl.RT
tJAPl.Eg, f'1.mD.... 34112
PH~E ~2M] 43f--QD4d
rn:. (lt1&) c+-B::KW
E.l!.~I::LB.1'fi4:!.
!iImTCH ANIl IlBSCll:IFTION
C~1'E alErT
'1jD1!l :!: IF 2
B-3
lOL
EXHIBIT "c" TO LANDFILL GAS SALES AGREEMENT AND GROUND LEASE:
Draft Performance Bond
Any singular reference to WMIF, Surety, COUNTY or other party shall be considered plural
where applicable.
WMIF:
SURETY (name and principal place of business):
COUNTY (OWNER):
Collier County
LANDFILL GAS SALES AGREEMENT AND GROUND LEASE
Date:
,2008
BOND
Date:
Dollars ($
)
Amount:
Modifications to this Bond: None
See Page( s)
WMIF AS PRINCIPAL
Company: (Corporate Seal)
SURETY
Company: (Corporate Scal)
Signature
Signature
. Print Name
Print Name
C-l
10L
Title
Title
(Any additional signatures please include at the end of page 5 of the exhibit)
FLORIDA RESIDENT AGENT
Print Name
Address
Phone
Fax
1. WMIF and the Surety, jointly and severally bind themselves, their heirs,
executors, Administrators, successors and assigns to the COUNTY for the performance of the
requirements in the LANDFILL GAS SALES AGREEMENT AND GROUND LEASE, which is
incorporated herein by reference.
2. If WMIF performs its duties and obligations in compliance with the Agreement,
the Surety and WMIF shall have no obligation under this Bond, except to participate in
conferences.
3.
arise after:
If there is no COUNTY Default, the Surety's obligation under this Bond shall
A. The COUNTY has notified WMIF and the Surety at its address described
in paragraph 10 below that the COUNTY is considering declaring a
WMIF Default and has requested and attempted to arrange a conference
with WMIF and the Surety to be held not later than fifteen (15) days after
receipt of such notice to discuss methods of satisfYing the requirements in
the Agreement. If the COUNTY, WMIF and the Surety agree, WMIF
shall be allowed a reasonable time to satisfy its obligations under the
Agreement, but such an agreement shall not waive the COUNTY's right, if
any, subsequently to declare a WMIF Default; and
B. The COUNTY has declared a WMIF Default and formally terminated
WMIF's right to complete the Agreement. Such WMIF Default shall not
be declared earlier than five (5) days after WMIF and the Surety have
received notice.
4. When the COUNTY has satisfied the conditions of paragraph 3, the Surety shall
promptly and at the Surety's expense take one of the following actions:
C-2
IOL
A. Arrange for WMIF, with consent of the COUNTY, to perform and
complete the Agreement; or
B. Undertake to perform and complete the Agreement itself, through its
agents or through independent Contractors; or
C. Obtain bids or negotiated proposals from qualified Contractors acceptable
to the COUNTY for the performance and completion of the Agreement,
arrange for a contract to be prepared for execution by the COUNTY and
the Contractor selected with the COUNTY's concurrence, to be secured
with performance and payment bonds executed by a qualified Surety
equivalent to the bonds issued on the Agreement, and pay to the
COUNTY the amonnt of damages as described in paragraph 6 in excess of
the balance of the contract price incurred by the COUNTY resulting from
WMIF's default; or
D. Waive its right to perform and complete, arrange for completion, or obtain
a new Contractor acceptable to the COUNTY and with reasonable
promptness under the circumstances:
(1) After investigation, determine the amount for which it may
be liable to the COUNTY and, as soon as practicable, tender payment
therefore to the COUNTY; or
(2) Deny liability in whole or in part and notify the COUNTY,
citing the reasons therefore.
5. If the Surety does not proceed as provided in paragraph 4 with reasonable
promptness, the Surety shall be deemed to be in default on this bond seven (7) calendar days
after receipt of an additional written notice from the COUNTY to the Surety demanding that the
Surety perform its obligations under this Bond, and the COUNTY shall be entitled to enforce any
remedy available to the COUNTY.
6. After the COUNTY has terminated WMIF's right to complete the Agreement, and
if the Surety elects to act, then the responsibilities of the Surety to the COUNTY shall not be
greater than those of WMIF under the Agreement, and the responsibilities of the COUNTY to
the Surety shall not be greater than those of the COUNTY under the Agreement. To the limit of
the amount of this bond, but subject to commitment by the COUNTY of the balance of the
contract price to mitigation of costs and damages on the Agreement, the Surety is obligated
without duplication for:
A. The responsibilities of WMIF for correction of defective work and
completion of the Agreement;
C-3
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B. Additional legal, design professional, and delay costs resulting from
WMIF's Default, and resulting from the actions or failure to act of the
Surety under paragraph 4; and
C. Liquidated damages or actual damages caused by delayed performance or
non-performance ofWMIF.
7. The Surety shall not be liable to the COUNTY or others for obligations ofWMIF
that are umelated to the Agreement. No right of action shall accrue on this bond to any Person or
entity other than the COUNTY or its heirs, executors, Administrators or successors.
8. The Surety hereby waives notice of any change, including changes of time, to the
Agreement or to related subcontracts, purchase orders and other obligations.
9. Any proceeding, legal or equitable, under this Bond may be instituted in any court
of competent jurisdiction in the location in which the work or part of the work is located and
shall be instituted within two years after WMIF Default or within two (2) years after WMIF
ceased working or within two years after the Surety refuses or fails to perform its obligations
under this bond, whichever occurs first. If the provisions of this paragraph are void or prohibited
by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of
the suit shall be applicable.
10. Notice to the Surety, the COUNTY or WMIF shall be mailed or delivered to the
address shown on the signature page.
11. When this bond has been furnished to comply with a statutory or other legal
requirement in the location where the construction was to be performed, any provision in this
bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and
provisions conforming to such statutory or other legal requirement shall be deemed incorporated
herein. The intent is that this bond shall be construed as a statutory bond and not as a common
law bond.
12. DEFINITIONS
~ CONTRACTOR Default: Failure of WMIF, which has neither been
remedied nor waived, to perform or otherwise to comply with the terms of
the Agreement.
B. Agreement: The Agreement between the COUNTY and WMIF and
amendments thereto.
C. COUNTY Default: Failure of the COUNTY, which has neither been
remedied nor waived, to pay WMIF as required by the Agreement or to
perform and complete or comply with the other terms thereof.
MODIFICATONS TO THIS BOND ARE AS FOLLOWS:
C-4
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(Space is provided below for additional signatures of added parties, other than those appearing
on the cover page.)
WMIF AS PRINCIPAL
SURETY
Company: (Corporate Seal)
Company: (Corporate Seal)
Signature
Signature
Print Name
Print Name
Title
Title
C-5
limit
EXHIBIT "D" TO LANDFILL GAS SALES AGREEMENT AND GROUND LEASE:
1. General Design Concepts and Maior Components of Facilitv.
The Facility shall be consistent with the general concepts depicted in the following
photograph, site plan, and schematic. [WMIF shall provide (a) a photograph illustrating the
external appearance of the Facility; (b) a site plan identifYing the general design and layout of the
Facility; and (c) a schematic identifYing the major components of the Facility.]
2. Minimum Specifications for the Facilitv.
The Facility shall comply with the following minimum specifications:
. The building shall be constructed with concrete block.
. The building shall be painted at least once every five (5) years, or as needed, whichever
occurs first.
. WMIF's engines, electrical generating equipment, LFG conditioning equipment, and
related equipment shall be located inside the building.
. The switchyard, exhaust stacks, and Metering Equipment may be located outside of the
building.
. A security fence (six (6) feet tall) shall be built around the switchyard and the Facility.
. The maximum height of the building or any component of the Facility shall be less than
thirty (30) feet above grade.
. If necessary to reduce noise levels, sound deadening materials shall be used in the
construction of the Facility and installed on the engines and other equipment at the
Facility.
. The Facility shall be designed and constructed in compliance with the County's
Ordinances, including the County's land development regulations and noise ordinance.
. WMIF shall utilize its reasonable commercial efforts to construct the Facility in
accordance with LEED (Leadership in Energy and Environmental Design) requirements
in order to obtain LEED certification for New Construction. The level of certification
shall be determined by WMIF. Costs in excess of those to construct a non-LEED certified
building will be borne by the County.
3. Maior Components of the Facility.
The Facility shall include the following components:
. at least five (5) Caterpillar G3516 engines or equivalent
. LFG pretreatment equipment, as necessary
. safety controls for upset conditions (e.g., high temperatures; loss of gas pressure; loss of
oil pressure), including a methane detection system and controls for the automatic
shutdown of the Facility
. electric generating equipment
. electric transmission systems and switch gear
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EXHIBIT "D" TO LANDFILL GAS SALES AGREEMENT AND GROUND LEASE
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PMrer III
Grid
Fault
Iuterrupter
Schematic identifying major components of the Facility
I Radiator I
oolant
Artereooler
Step up Transformer
Distribution
Voltage
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I I
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Filtered, Compressed,
Cooled, and Reheated
Landfill Gas
Electrical Distribution to gas
compression and other loads
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EXHIBIT "D" TO LANDFILL GAS SALES AGREEMENT AND GROUND LEASE
Photograph illustrating typical external appearance of the Facility
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EXHIBIT "E" TO LANDFILL GAS SALES AGREEMENT AND GROUND LEASE:
Schedules for Payments to the County
Schedule 1. Gas Sales Payments
The following factors and formula shall be used to determine the amount of the Gas Sales
Payment from WMIF to the County.
1. WMIF shall pay one dollar and twenty-five cents ($1.25) per MMBTU for the LFG
used by the Facility until the end ofthe first operating year. After the first operating year, the unit
price paid to the County per MMBTU for LFG shall be adjusted as described below:
Annual Escalator Linking LFG Price to Price WMIF is Paid for Electricitv
The unit rate paid for LFG used by the Facility shall be annually adjusted on the anniversary of
the Commercial Operations Date. The adjustment factor shall be based on the change of the rate
WMIF receives for the electrical power it sells from the LFG Facility measured in US Dollars
per MWh. Annually WMIF shall present to the County, within 30 days after the anniversary of
the Commercial Operations Date, a report detailing the revenue per megawatt-hour (MWh) that
WMIF received for the previous year. The calculation for the annual price adjustment shall be as
follows.
Numerator = Annual average price per MWh (total annual revenue divided by total
annual MWh sold) received by WMIF for the year preceding the anniversary of the
Commercial Operation Date.
Denominator = $68.00 per MWh, fixed. (This value per MWh was provided by WMIF as
an estimate of the initial price per MWh and was used in the financial proforma and
modeling for the project.)
Price Adjustment Factor = Numerator divided by Denominator
If the Price Adjustment Factor is less than one (1) no price adjustment will be made.
If the Price Adjustment Factor is greater than one (1), the unit price paid to the County per
MMBTU for landfill gas shall be adjusted by multiplying the Price Adjustment Factor by one
dollar and twenty-five cents ($1.25). This value becomes the new price paid to the County for
LFG for the next annual period.
2. The energy (i.e., BTU and MMBTU) content of the LFG shall be determined in
accordance with the formulas contained in Section 10.1 of the Agreement.
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3. The Gas Sales Payment to the County from WMIF shall be calculated by: (a)
multiplying (i) the current unit price per MMBTU for LFG ; by (ii) the volume of LFG used by
the Facility, expressed in SCF; by (iii) the methane (CH4) content of the LFG, expressed as a
fraction of the LFG; by (iv) a fixed quantity of 1,012 BTU per SCF; and (b) dividing by one
million (1,000,000).
Schedule 2. Electricity Sales Payments
The following factors shall be used to determine the amount of the Electricity Sales Payments
from WMIF to the County.
1. WMIF shall pay the County fifty percent (50%) of all revenue received by WMIF from the
sale of Electricity generated by the Facility, when and to the extent that the average sales price
for Electricity in a Billing Period exceeds the revenue-sharing threshold identified in this
Schedule 2. The amount of the Electricity Sales Payment from WMIF to the County in any
Billing Period shall be calculated by: (a) subtracting the revenue-sharing threshold from the
average sale price of Electricity during the Billing Period; (b) multiplying by the total number of
megawatt-hours of Electricity that WMIF sold during the Billing Period; and (c) multiplying by
one-half (0.5). For example, if WMIF sold thirty thousand (30,000) megawatt-hours' of
Electricity at an average sales price of sixty-eight dollars ($68.00) per megawatt-hour during a
Billing Period when the revenue-sharing threshold is sixty-two dollars ($62.00), the amount of
the Electricity Sales Payment from WMIF to the County would be calculated as follows:
($68.00 - $62.00 = $6.00 per megawatt-hour) x (30,000 megawatt-hour) x 0.5 = $90,000
2. The average sales price for Electricity shall be determined by dividing (a) the gross revenues
received by WMIF for Electricity sales in a Billing Period (b) by the total number of megawatt-
hours of Electricity sold by WMIF in such Billing Period. The gross revenues for Electricity
shall include any money received by WMIF from the sale of renewable energy credits and
certificates or any other revenue derived from the operation of the LFG Facility.
3. The revenue sharing threshold for the first Operating Year shall be calculated based on the
capital cost invested by WMIF in the permitting, design, construction, and commissioning of the
Facility, the preparation and site work on the Premises, and any offsite work required to facilitate
or enable permitting, development, and operation of the Facility and the Premises. A revenue
sharing threshold of $61.86 per megawatt-hour corresponds to a WMIF capital investment of
$7,000,000.00 dollars. The revenue sharing threshold shall be decreased from $61.86 by $0.006
for each $1,000.00 decrease in WMIF capital investment below $7,000,000.00. The revenue
sharing threshold shall be increased from $61.86 by $0.006 for each $1,000.00 increase in WMIF
capital investment above $7,000,000.00. The WMlF capital investmcnt shall be rounded to the
nearest $1,000.00 for the purposes of this schedule, and the calculated first Operating Year
revenue sharing threshold shall be rounded to the nearest $0.01. For example, if the WMIF
capital investment is $7,534,216, the revenue sharing threshold for the first Opcrating Year shall
be:
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$61.86 + $0.006 x ($7,534,000 - $7,000,000) /1000 = $61.86 + $3.204 = $65.06 per megawatt-
hour for the first Operating Year
4. On the first anniversary of the Commercial Operation Date and each anniversary thereafter,
the revenue-sharing threshold shall be increased by one and one-half percent (1.5%), rounded to
the nearest $0.01.
5. In no event will the County pay to WMIF any amount for electricity if the average sale price
for electricity falls below the revenue-sharing threshold.
Schedule 3. Payments for New Tax Credits, Emissions Credits, and Other New or Additional
Proiect Revenues.
The following factor shall be used to determine the amount of the payments from WMIF to the
County for New Tax Credits, Emissions Credits, and/or other new or additional project revenues:
1. WMIF shall pay to the County an amount equal to ninety percent (90%) of the gross
revenue and other financial benefits WMIF received from the sale, transfer, use, assignment, or
other disposition of New Tax Credits and/or Emissions Credits, as provided in Section 13 of the
Agreement, and/or other new or additional project revenues. These other new or additional
project revenues may include the financial benefits of the Alternative Energy Tax Credit, as
amended, if different than the financial benefits available from the Alternative Energy Tax Credit
as currently enacted.
Schedule 4. Depreciation Pavments.
The amount of the depreciation fee to be paid from WMIF to the County shall be determined and
paid in compliance with the provisions set forth in Section 14.4 of the Agreement.
Schedule 5. Reserved.
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