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HomeMy WebLinkAbout2011-140A 15 .� 3 2D1V ` '� � � FEEDSTOCK SUPPLY AGREEMENT by and between INEOS New Planet BioEnergy, LLC and Indian River County Solid Waste Disposal District Dated as of July 1 2011 TABLE OF CONTENTS PAGE Article I . DEFINITIONS 2 Article II . CONDITIONS PRECEDENT TO COMMENCING OPERATIONS 9 Section 2 . 1 Conditions Precedent to Beginning Operations 9 A . General 9 B . Commencement Date 9 C . Waste Deliveries Prior to Commencement Date 9 D . Conditions Precedent to the Company ' s Obligations 10 E . Conditions Precedent to the District ' s Obligations 10 ARTICLE III . OPERATIONS 12 Section 3 . 1 District Responsibilities and Obligations 12 A . Commitment to Deliver Acceptable Waste 12 B . Delivery of Acceptable Waste 12 C . Acceptable Waste Deliveries ; Rejections 14 D . Diverted Waste 15 E . District to Supply Landfill Gas to Company 15 F . Ash Residue 15 G . Public Education and Communications 15 H . Out of County Waste 15 L Storm Debris 16 J . Limitations on Waste Disposal in Landfill 16 Section 3 . 2 Company Responsibilities and Obligations 16 A . Accept and Process Acceptable Waste 16 B . Feedstock Delivery Plan 16 C . Weighing, Inspection and Record Keeping 17 D . Rejection of Deliveries 17 E . Unacceptable Waste 18 F . . Disposal of Ash Residue 18 G . Company ' s Responsibilities Regarding Landfill Gas 19 Section 3 . 3 Applicable Laws , Ordinances and Regulations 21 PAGE ARTICLE IV . PAYMENTS AND FEES 21 Section 4 . 1 Fees and Monthly Payments 21 A . Fees 21 B . Monthly Billing Statement 23 C . Monthly Payments by the Parties 24 Section 4 . 2 Annual Reconciliation 24 Section 4 . 3 CPI and HHI Adjustments 25 Section 4 . 4 Fee Adjustments Based on Market Conditions 25 Section 4 . 5 Audits 28 Section 4 . 6 Preferred Rates for the District 28 ARTICLE V . FORCE MAJEURE 28 ARTICLE VI . TERM , DEFAULT AND TERMINATION 29 Section 6 . 1 Terms ; Renewals 29 Section 6 . 2 Default and Termination 29 A. Events of Default 29 B . Remedies 30 C . Exclusivity of Remedies 30 D . Survival of Obligations 30 ARTICLE VI . INDEMNIFICATION AND INSURANCE 30 Section 7 . 1 Indemnification 30 Section 7 . 2 General Liability Insurance 31 Section 7 . 3 Environmental Impairment Insurance 31 Section 7 . 4 Proof of Financial Responsibility 32 ARTICLE VIII . GENERAL TERMS 32 Section 8 . 1 Dispute Resolution 32 Section 8 . 2 Representations and Warranties of Parties 33 Section 8 . 3 Miscellaneous 33 A . Assignment 33 B . Relationship of the Parties ; Beneficiaries 33 C . Further Assurances 34 PAGE D . Notices 34 E . Waivers 35 F . Entire Agreement ; Modifications ; Exhibits 35 G . Headings 35 H . Counterparts 35 I . Venue 36 J . Governing Law and Construction 36 K . Waiver of Jury Trial 36 L . Severability 36 M . Binding Agreement 36 N . Reasonableness Standard 36 0 . Attorney Fees 36 P . Time of Essence 37 Q . Publicity and Property Rights 37 R. Cooperation and Release of Information 37 S . Sovereign Immunity 37 T . Records Retention 37 U . Future Activities 37 EXHIBITS PAGE EXHIBIT 1 -A PROCESSING FEES PAID TO COMPANY 39 EXHIBIT 1 -B DISPOSAL FEES PAID TO DISTRICT 40 EXHIBIT 1 - C ESTIMATED COST TO LANDFILL ASH PRODUCT FROM INPB — FY 2010/ 11 41 EXHIBIT 2 A . SPECIFICATIONS FOR ACCEPTABLE WASTE 42 B . DEFINITION OF UNACCEPTABLE WASTE 43 EXHIBIT 3 -A PRICE OF LANDFILL GAS 44 EXHIBIT 3 -13 LANDFILL GAS SPECIFICATIONS 45 EXHIBIT 3 - C LANDFILL GAS INTERCONNECT AGREEMENT 47 iii FEEDSTOCK SUPPLY AGREEMENT THIS AGREEMENT ( "Agreement") is made by and between INEOS New Planet BioEnergy , LLC (" Company") , a Delaware limited liability company, and the Indian River County Solid Waste Disposal District ("District") , a special district of Indian River County , Florida on this _ day of July, 2011 ("Effective Date") . WITNESSETH : WHEREAS , in 2008 , the District issued a Request for Proposals for a Waste To Energy Project and Company responded with a proposal that was selected by District ; and WHEREAS, Company intends to design , construct and operate a facility (the "Facility") in Indian River County ( " County") that will produce a bioethanol energy product and renewable power (i . e . , electricity) from , but not limited to , organic feedstock comprised of Vegetative Wastes and other organic matter; and WHEREAS , the Facility will be designed, constructed and operated to produce approximately eight million ( 8 , 000 , 000) gallons of ethanol per year and generate approximately six (6 ) megawatts of electricity ; and WHEREAS , District is willing to provide Acceptable Wastes to Company for use in the production of bioethanol and renewable power in Company ' s Facility , subject to the conditions contained herein ; and WHEREAS , District ' s Landfill produces gas that the District is willing to make available to Company, subject to the conditions contained herein ; and WHEREAS , Company desires to utilize all of the District ' s Acceptable Waste and Landfill Gas at its Facility ; and WHEREAS , the District and the Company have negotiated the terms of this Agreement , which are mutually acceptable to both Parties . NOW, THEREFORE , in consideration of the mutual promises contained herein and other good and valuable considerations , the receipt and sufficiency of which are hereby acknowledged, the Company and District agree to be bound by and comply with the following : ARTICLE I DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below : Acceptable Waste — means Vegetative Waste that complies with the specifications in Exhibit 2 . Acceptable Waste does not include Unacceptable Waste , except for Unacceptable Waste which can be Processed in small quantities when mixed with Acceptable Waste , to the extent such Processing does not negatively impact the operation of the Facility . Annual Reconciliation — means those adjustments and payments required to be made pursuant to Section 4 . 2 , below . Ash Residue — means the solid residue and entrained liquids resulting from the thermal and combustion processes used by the Facility to generate ethanol , including bottom ash, fly ash and combined bottom and fly ash , but excluding metals , glass , and other materials that are separated and removed from the Ash Residue . Clean Wood — means wood (i . e . , lumber, pallets , etc . ) that is free of paint, glue , filler, pentachlorophenol , creosote , tar, asphalt, and other wood preservatives and treatments . Commencement Date — means the date on which the Company shall commence the commercial operations of the Facility, including the routine Processing of Acceptable Waste . However, the Commencement Date may occur before or after the Landfill Gas Commencement Date . Commercially Reasonable Efforts — means the use of all measures that a reasonably prudent Person would determine to be efficient , commercially available , and cost- effective under the circumstances . Company LFG Assets — means all of the Company ' s equipment and other tangible assets used for the measurement, transmission, handling , monitoring , control , management and use of the Landfill Gas that is transmitted from the Delivery Point to the Facility . The Company LFG Assets include but are not limited to the Company ' s metering equipment , the Company ' s LFG pipeline from the Delivery Point to the Facility, the Company ' s compressor, and the Company ' s equipment used to connect the Company ' s LFG system to the Delivery Point . Construction and Demolition Waste ( "C&D Waste ') — means discarded materials generally considered to be not water soluble and non-hazardous in nature , including but 2 not limited to steel , glass , brick, concrete , asphalt material , pipe , gypsum wallboard, and lumber , from the construction or destruction of a structure as part of a construction or demolition project or from the renovation or repair of a structure , including such debris from construction of structures at a site remote from the construction or demolition project site . The term includes rocks , soils , tree remains , trees , and other vegetative matter which normally results from land clearing or land development operations for a construction project ; clean cardboard, paper, plastic , wood, and metal scraps from a construction project, unpainted, non-treated wood scraps from facilities manufacturing materials used for construction of structures or their components and unpainted, non- treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste ; and de minimis amounts of other non-hazardous wastes that are generated at construction or demolition projects , provided such amounts are consistent with best management practices of the construction and demolition industries . Mixing of construction and demolition waste with other types of solid waste will cause it to be classified as other than construction and demolition waste . Consumer Price Index ( " CPI ") — means the " Consumer Price Index - All Urban Consumers " ( Series ID CUUR0300SA0) for the South Urban Region , as published by the Bureau of Labor Statistics of the U . S . Department of Labor. Contract Year — means each twelve ( 12) month period beginning on October 1 and ending on the following September 30 , except (a) the first Contract Year shall begin on the Commencement Date and end on the following September 30 and (b) the last Contract Year shall end when this Agreement expires or is terminated . Contractor — means any Person engaged by the District to deliver Acceptable Waste from the District ' s Landfill , convenience centers , or other solid waste management facilities to the Company ' s Facility . County- means , depending upon the context, either (a) the geographical area contained within Indian River County, Florida, or (b) the government of Indian River County , acting through the Board of County Commissioners , CPI Adjustment Factor — means one plus the decimal fraction, computed to three places , representing the percent change in the CPI during the relevant period of time , multiplied by the amount subject to adjustment. The percentage change in the CPI shall be based on the change in the CPI during the one-year period ending with the month of July immediately preceding the date on which the CPI adjustment shall be effective . In the event that a CPI value for July or other months is not available at the time when the CPI computation is to be made , the Parties shall use the percentage change that occurred 3 during the one ( 1 ) year period ending with the most recent month for which the CPI data are available . Delivery Point — means the location on the District ' s property where the District ' s LFG Assets and the Company ' s LFG Assets are interconnected, thus enabling the District to deliver LFG to the Company . District LFG Assets- means all of the District ' s equipment and other tangible assets used for the collection and management of the Landfill Gas upstream of the Delivery Point . The District ' s LFG Assets include but are not limited to the District ' s LFG recovery wells , LFG flare and LFG collection system, the District ' s blowers and pipes used to transport LFG from the recovery wells to the Delivery Point, and the equipment used to connect the District ' s LFG system to the Delivery Point and all such assets added in the future . Diverted Waste — means Acceptable Waste that is diverted from the Facility and is disposed of in the District ' s Landfill because (a) the Facility is unable to accept and Process such material or (b) the vehicles delivering such waste left the Facility after waiting more than thirty (30) minutes . Effective Date — means the date on which the last of the Parties has executed this Agreement . Facility — means the Company ' s plant for Processing Acceptable Waste , which is located at 925 SW 74th Avenue in Vero Beach, Florida. Facility Site — means the real property located at 925 SW 74th Avenue in Vero Beach , Florida, where the Facility will be built and operated. Force Majeure - means an act , event or condition that actually and proximately prevents a Party from performing any of its obligations ( other than an obligation to make payments of money when due) under this Agreement, but : (a) only if such act, event or condition is beyond the reasonable control of the Party relying thereon as justification for not performing an obligation or complying with any requirement of such Party under this Agreement ; and (b) only to the extent the Party claiming Force Majeure is unable to prevent, avoid, or overcome the Force Majeure through the exercise of Commercially Reasonable Efforts , and the Force Majeure is not the result of the fault or negligence of the Party claiming Force Majeure . Such acts , events or conditions shall include , but not be limited to : ( 1 ) acts of God, strikes , lockouts , or other industrial disturbances , acts of the public enemy, wars , blockades , explosions , insurrections , riots , epidemics , landslides , lightning , 4 earthquakes , fires , hurricanes , tropical storms , floods , tornadoes , restraints of governments and people , and civil disturbances ; (2 ) breakage of machinery or equipment (not caused by poor maintenance or operations) and necessity for making repairs or alterations to machinery or equipment (other than regularly scheduled or routine maintenance) ; (3 ) the enactment of any law that imposes a constraint on the District and thus reduces the waste stream arriving at the Facility Site or prevents the District from providing Acceptable Waste under this Agreement , and/or or prevents the Company ' s Facility from accepting such Acceptable Waste ; (4) acts of civil or military authority (including, but not limited to , orders , judgments or decrees of any federal , state or local courts or administrative or regulatory agencies) , and the passage of new regulations or legislation that make the Facility illegal to operate ; and (5 ) any other cause not reasonably within the control of the Party seeking relief and which by the exercise of due diligence and Commercially Reasonable Efforts such Party is unable to prevent or overcome . Force Majeure shall include : (i) in those instances where either Party is required to obtain servitudes , rights of way, grants , permits or licenses to enable such Party to fulfill its obligations hereunder, the inability of such Party to acquire , or the delays on the part of such Party acquiring , at reasonable cost and after the exercise of Commercially Reasonable Efforts , such servitude , rights of way, grants , permits or licenses ; and (ii) in those instances where either Party is required to furnish materials and supplies for the purpose of constructing, operating , or maintaining facilities or is required to secure grants or permissions from any governmental agency to enable such Party to fulfill its obligations hereunder, the inability of such Party to acquire , or delays on the part of such Party in acquiring, at reasonable cost and after the exercise of Commercially Reasonable Efforts , such materials and supplies , permits and permissions . Force Majeure shall not include : (i) market changes that affect the cost of complying with and performing under this Agreement ; (ii) changes in tax law ; or (iii) any change in applicable law that affects the economic return to either Party as a result of the activities and transactions contemplated under this Agreement. 5 Franchisee — means a Person that has a franchise issued by the District , which authorizes that Person to collect Vegetative Waste within part or all of the County , and requires that Person to deliver the Vegetative Waste collected in the County to a solid waste disposal facility designated by the District . Henry Hub Index (HHI) - The HHI for any month will be equal to the monthly index price for the Henry Hub , as published in the Platts Inside FERC 's Gas Market Report, or a successor publication that is mutually acceptable to the Parties . HHI Adjustment Factor - means one plus the decimal fraction, computed to three places , representing the percent change in the HHI during the relevant period of time , multiplied by the amount subject to adjustment . The percentage change in the HHI shall be based on the change in the HHI during the one -year period ending with the month of July immediately preceding the date on which the HHI adjustment shall be effective . In the event that a HHI value for July or other months is not available at the time when the HHI computation is to be made , the Parties shall use the percentage change that occurred during the one ( 1 ) year period ending with the most recent month for which the HHI data are available . Household Hazardous Waste ( "HHW ' ) — means waste products which exhibit hazardous characteristics for reactivity , ignitability, corrosivity, or toxicity , as defined by the Resource Conservation and Recovery Act ("RCRA") , as amended, but are generated by households . Examples of HHW include , but are not limited to , drain cleaners , latex and oil paint, motor oil , antifreeze , fuel , poisons , pesticides , herbicides , rodenticides , fluorescent lamps , lamp ballasts , smoke detectors , medical waste , and certain consumer electronics (e . g . , televisions , computers , and cell phones) . Household Waste — means Municipal Solid Waste generated by the residents of single family and multi - family dwellings . Landfill — means the District ' s Class I landfill located at 1325 SW 74th Avenue in Vero Beach , Florida . Landfill Gas ( "LFG ') — means gas generated in the Landfill . Landfill Gas Agreement ( "LFG Agreement ') — means the Landfill Gas Interconnect Agreement that shall be executed by the Parties in the future and attached to this Agreement as Exhibit 3 - C . Landfill Gas Commencement Date ( "LFG Commencement Date ') - means the date when the Company begins to use the District ' s LFG in the Company ' s Facility on a routine basis . 6 Land Clearing Debris - means trees , bushes , shrubs , tree limbs , stumps , and similar vegetative materials that are more than three inches (Y ) in diameter and have been obtained from the clearing of undeveloped land, highway median strips , or other right- of- way areas . Monthly Billing Statement — means the billing statement prepared by the Company on a monthly basis and submitted to the District in compliance with the requirements in Section 4 . 1 herein . Mulch — means Vegetative Waste that has been sorted and then chipped or ground into smaller sized particles . Municipal Solid Waste ( "MSW ') — means garbage and other putrescible solid waste generated by households and commercial establishments , such as retail stores , offices , restaurants , warehouses , and non-manufacturing activities in industrial facilities . MSW does not include special waste (e. g. , waste from manufacturing processes ; regulated medical waste ; sewage ; sludge) , hazardous waste , HHW, or C &D Waste . Non -Ad Valorem Assessment — mean the annual disposal charge or " County Landfill Fee" collected by Indian River County ' s Tax Collector, under the direction and authority of the District, from certain properties in the County on the basis of the Waste Generation Unit Schedule and Use Code Classification , as assigned by the District . Out of County Waste — means any solid waste that is generated outside of the geographical boundaries of Indian River County and is delivered to the Facility for Processing . Party — means either the Company or the District. The Company and the District are collectively referred to herein as the "Parties " . Person — means : 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 . Process, Processed, or Processing — means , depending upon the context, either (a) the sorting, chipping, and/or grinding of Acceptable Waste at the Facility to create Mulch for the District or (b) the gasification and fermentation of Acceptable Waste at the Facility for the production of ethanol and electricity. Processing Fee — means the fee paid by the District for each ton of Acceptable Waste that is delivered to the Facility by the District, Contractors , Franchisees , and 7 Residents , and then Processed into Mulch or feedstock for the Facility , in compliance with this Agreement . The Processing Fee is set forth in Exhibit 1 -A. Recyclable Materials — means metal , paper, glass , plastic , textile , rubber or other materials that have known recycling potential , can be feasibly recycled, and have been diverted or separated from the Acceptable Waste . Refusal — means the Company ' s refusal to receive or accept Acceptable Waste delivered to the Facility by the District, a Contractor, Franchisee , or Resident, during the time periods when the Facility is required by this Agreement to receive and accept Acceptable Waste . Resident — means a Person that pays the Non-Ad Valorem Assessment to the District . Satisfaction of Conditions Precedent — means that all conditions precedent have been satisfied or waived in compliance with Section 2 . 1 , below. Supplemental Processing Fee — means the fee paid by the District for each ton of Acceptable Waste that is delivered to the Facility by the District, Contractors , Franchisees , and Residents and Processed by the Facility to create ethanol and electricity in compliance with this Agreement . The Supplemental Processing Fee is set forth in Exhibit 1 -A . Tipping Fee — means the disposal fee that may be collected by the Company with respect to waste that was generated in the County and delivered to the Facility ; provided, however, the Tipping Fee may be collected only if the cost of disposal for such waste was not included in the Non-Ad Valorem Assessment . Ton — means a short ton (2000 pounds or 0 . 9078 metric tons) . Unacceptable Waste — means : regulated quantities of hazardous waste ; polychlorinated biphenyls (PCB ) ; and other materials defined as Unacceptable Waste in Exhibit 2 . Vegetative Waste — means discarded vegetative matter, including, but not limited to , material resulting from lawn and landscaping maintenance , Land Clearing Debris , or agricultural operations , such as tree and shrub trimmings , grass clippings , palm fronds , trees , branches , and tree stumps . s ARTICLE II. CONDITIONS PRECEDENT TO COMMENCING OPERATIONS Section 2 . 1 Conditions Precedent to Beginning Operations . A . General . On and after the Effective Date , the Parties shall proceed in good faith and with due diligence to satisfy the conditions precedent ("CP") set forth below . Unless the conditions precedent set forth in this Section 2 . 1 have been satisfied on or before the Commencement Date or waived by mutual agreement of District and Company, or unilaterally waived by one Party as to a condition precedent that is totally within the other Party ' s control , the Parties ' obligations under Articles III and IV of this Agreement shall not take effect. On and after December 31 , 2013 , if any condition precedent in this Section 2 . 1 is not satisfied or waived, either Party , by notice in writing to the other Party , may terminate this Agreement. Neither Party shall be liable to the other for termination of this Agreement pursuant to this Section 2 . 1 , and each of the Parties shall bear its respective expenses attributable to the transactions herein contemplated . Notwithstanding the foregoing, neither Party shall be relieved of its obligations hereunder by the failure to satisfy any condition precedent, the satisfaction of which is solely within such Party ' s control . Each Party shall promptly notify the other Party , in writing , when all of its conditions precedent to its obligations have been satisfied or have been waived in writing by the Party whose obligation is conditioned thereon or have been mutually waived (the " Satisfaction of CP ") . B . Commencement Date . Upon the Satisfaction of CP by both Parties , the District and Company shall mutually establish the Commencement Date , which shall be not more than thirty ( 30) days from the date of Satisfaction of CP . The Commencement Date shall not be more than ninety ( 90) days before the Landfill Gas Commencement Date . Beginning on the Commencement Date and continuing thereafter throughout the term of this Agreement, ( 1 ) the District shall deliver or direct the delivery of Acceptable Waste to the Facility Site, (2 ) the Company shall receive and Process such waste , and ( 3 ) the Company shall accept and use the County ' s LFG , subject to the conditions herein. C . Waste Deliveries Prior to Commencement Date . Upon request, the District shall instruct its Contractors (if any) and Franchisees , to the extent necessary, to deliver Acceptable Waste to the Facility Site prior to the Commencement Date . The Acceptable Waste may be used by the Company for start-up and shakedown testing of the Facility , or to establish a stockpile for future use , or other similar purposes . The Company shall provide at least thirty (30) days advance notice concerning the amount of waste needed and the proposed dates for delivery . The District shall make a good faith effort to satisfy the Company ' s requests , but the District makes no guarantees concerning 9 the District ' s ability to satisfy the Company ' s requests . The District shall have no liability to the Company if the District is unable to satisfy the Company ' s needs . D . Conditions Precedent to the Company ' s Obligations . The following are the conditions precedent to Company ' s obligations : 1 . Any required environmental review for the Facility Site and the Facility shall have been completed and approved as required by law . 2 . All applicable environmental and other governmental permits , licenses and authorizations necessary for the design, construction, modification , start-up , and operation of the Facility Site and Facility shall have been obtained . 3 . All easements , grants , approvals , or similar rights shall have been given by any appropriate third party as may be necessary for Company to use and develop the Facility Site and the Facility and perform such work and construct such facilities as necessary to enable Company to receive Acceptable Waste from District. 4 . The representations of the District in Section 8 . 2 hereof shall be true and correct in all material respects as of the Commencement Date as if made on and as of such date . 5 . No action, suit, proceeding or official investigation shall have been commenced by any federal , state or local government authority or agency, in any federal , state or local court, that seeks to enjoin , assess civil or criminal penalties against, assess civil damages against or obtain any judgment, order or consent decree with respect to any Party to this Agreement as a result of such Party ' s negotiation , execution , delivery or performance of this Agreement or its participation or intended participation in any transaction contemplated thereby . 6 . After the Effective Date and on or before the Commencement Date , no change in, addition to or deletion of any provision of any applicable federal , state or local law, statute , regulation or interpretation thereof by any regulatory authority having jurisdiction , shall be made which would, if effective , make the execution or performance by Company of any provision in this Agreement a violation of any law, statute or regulation . E . Conditions Precedent to the District ' s Obligations . The following are the conditions precedent to the District ' s obligations : 1 . All applicable environmental , regulatory and other governmental permits , licenses and authorizations necessary for District to meet its Acceptable Waste delivery obligations under the Agreement shall have been obtained under terms and conditions acceptable to the District . 10 2 . No action, suit, proceeding or official investigation shall have been commenced by any federal , state or local government authority or agency, in any federal , state or local court, that seeks to enjoin , assess civil or criminal penalties against, assess civil damages against or obtain any judgment, order or consent decree with respect to any Party to this Agreement as a result of such Party ' s negotiation, execution, delivery or performance of this Agreement or its participation or intended participation in any transaction contemplated thereby . 3 . After the Effective Date and on or before the Commencement Date , no change in, addition to or deletion of any provision of any applicable federal , state or local law, statute , regulation or interpretation thereof by any applicable regulatory authority, shall be made which would, if effective, make the execution or performance by the District of any provision in this Agreement, a violation of any law, statute or regulation . 4 . Within ninety ( 90) days after the Effective Date of this Agreement , the Parties have executed a mutually acceptable agreement for the delivery, acceptance , and use of the District ' s Landfill Gas , based on the general concepts set forth in this Agreement . The Landfill Gas Agreement shall be attached to this Agreement as Exhibit 3 -C , 5 . Before the LFG Commencement Date , the Company certifies to the District that (a) the Company has successfully completed its start-up and shakedown testing of the Company ' s system for conveying and using Landfill Gas in the Facility, (b) the system is fully operational , and (c) the system is capable of transporting and the Facility is capable of using all of the Landfill Gas produced by the Landfill , up to a minimum design capacity of one thousand ( 1 , 000) standard cubic feet of LFG per minute . 6 . Before the Commencement Date , the Company confirms that the LFG Commencement Date shall occur no later than ninety (90) days after the Commencement Date . 7 . Before the Commencement Date , the Company certifies to the District that ( a) the Company has successfully completed its start-up and shakedown testing of the Facility , (b) the Facility is fully operational , and (c) the Facility is capable of Processing all of the District ' s Acceptable Waste . 11 ARTICLE III OPERATIONS Section 3 . 1 District Responsibilities and Obligations . A. Commitment to Deliver Acceptable Waste . 1 . On and after the Commencement Date , District shall take the steps described herein to deliver, or have delivered on its behalf, certain Acceptable Waste to the Facility . For purpose of this Agreement, all vehicles delivering material to the Facility that are delivering by or for the District shall be considered deliveries made by the District. 2 , The District shall be entitled to receive up to twenty-five thousand (25 , 000) Tons of Mulch each Contract Year from the Company for the District ' s use . However, at all times during a Contract Year, the amount of Mulch received by the District shall not be greater than the amount of Acceptable Waste that the District has delivered to the Company during the same Contract Year . The Company shall be responsible for loading the Mulch into the District ' s trucks at the Facility Site . The District shall be responsible for transporting and using the Mulch as the District deems appropriate . B . Delivery of Acceptable Waste . 1 . At or prior to the beginning of each Contract Year, the District shall provide to Company a schedule (the " Schedule") setting forth the estimated quantities of Acceptable Waste that District expects to deliver to the Facility during each month of that year (the " Scheduled Delivery Tonnage") and the estimated quantities of Mulch that the District expects to receive from the Facility during each month of that year (the " Scheduled Mulch Tonnage") . However, the Scheduled Mulch Tonnage cannot exceed the Scheduled Delivery Tonnage in any month or in any Contract Year . The Parties understand and agree that the Scheduled Delivery Tonnage and the Scheduled Mulch Tonnage in the Schedule are good faith estimates for planning purposes only . The failure or inability of either Party to comply with the estimates in the Schedule shall not be a basis for any liability by either Party . , 2 . The District, Contractors , Franchisees , and Residents may deliver Acceptable Waste to the Facility, and Company shall accept such deliveries , on any day of the year that the District Landfill is open, between the hours of 6 a . m . and 6 p . m. Company may accept Acceptable Waste from these Persons at other times if Company and District mutually agree in advance on such other times , if any . 12 3 . If Company will be unable to receive Acceptable Waste from District because of a planned outage for maintenance or other reasonably foreseeable event, Company shall provide District with written notice as far in advance as possible and, in any event, no less than fourteen ( 14) days before such event . If Company is unable to accept Acceptable Waste because of an unplanned outage or other unanticipated event, Company shall immediately provide notice to District. 4 . In the event that one of the delivery vehicles used by the District, a Contractor, Franchisee, or Resident is required to wait longer than thirty (30) minutes after queuing in line at the Facility to deliver Acceptable Waste , such delivery vehicle may leave and dispose of the Acceptable Waste at another location . The District shall notify Company if District learns that such delivery vehicle arrived at the Facility, waited in excess of thirty (30) minutes and disposed of Acceptable Waste at the Landfill . A wait of longer than thirty (30) minutes shall not be a breach by Company of this Agreement, and no damages shall be payable to District as a result of such occurrence , but Company shall reimburse the District for any out- of-pocket expenses incurred by District for disposal of such Diverted Waste . In the alternative , Company may transfer such Diverted Waste from District ' s Landfill to the Facility, at Company ' s cost, if the Diverted Waste has not been mulched or disposed of at the Landfill . If the Company transfers such Diverted Waste from the Landfill and Processes the waste in the Facility, the District shall pay the applicable Processing Fee(s) for the Diverted Waste . In the event the queuing line to deliver material to the Facility extends onto a public road, the Company shall take Commercially Reasonable Efforts to mitigate such conditions . The specific procedures that will be used to handle such circumstances shall be set out in the Feedstock Delivery Plan . 5 . If the personnel or vehicles of the District or its Contractors or Franchisees will enter the Facility Site , the District shall provide such personnel and vehicles with identification reasonably satisfactory to the Company . If requested, the District shall confirm to Company the identity of all such personnel in advance . Vehicles and personnel not possessing the required identification may be refused entry to the Facility Site and such event will not be considered a Refusal event . District, Franchisee and Contractor vehicles entering the Facility Site shall be properly licensed, permitted and insured in accordance with applicable law . 6 . The District shall comply with all applicable safety procedures and regulations established from time to time by Company concerning access to the Facility Site , including procedures relating to traffic , unloading, parking and like matters . The procedures and regulations shall be set out in the Feedstock Delivery Plan . 13 C . Acceptable Waste Deliveries ; Rejections . 1 . On and after the Commencement Date , the District shall instruct its Contractors ( if any) to transport Acceptable Waste from the District ' s convenience centers to the Facility . District also shall instruct its Franchisees (if any) to deliver Acceptable Waste to the Facility, if such waste was collected pursuant to the District ' s franchise and the District may lawfully control the disposal of such material pursuant to the terms of the franchise agreement . In addition, if any Resident or other Person attempts to deliver a load of Acceptable Waste to the Landfill , District shall instruct such Person to deliver the Acceptable Waste to the Facility . 2 , The District shall instruct its Contractors , Franchisees , and Residents to deliver only Acceptable Waste to the Facility . 3 , The Company , in its sole discretion, shall have the right to inspect the contents of any vehicle delivering material to determine the presence of Unacceptable Waste or Hazardous Waste , including the right to require the Person operating such vehicle to unload the contents as directed by Company for inspection or the taking of samples as provided herein . If any vehicle is found, by sampling or otherwise , to contain Unacceptable Waste or Hazardous Waste , Company may reject all or part of the load and instruct the Person to remove the rejected material . The Company may charge a Contractor, Franchisee or Resident a reasonable fee for reloading the Unacceptable Waste or Hazardous Waste in such Person ' s vehicle . 4 . If Unacceptable Waste or Hazardous Waste is delivered to the Facility Site and the Company is unable to identify the Person that delivered such waste, the Company shall be responsible , at the Company ' s sole cost, for removing such waste from the Facility Site and disposing of same , in accordance with applicable law and directives of any regulatory agency having jurisdiction over the Facility . The District shall not be responsible for the removal and disposal of Unacceptable Waste or Hazardous Waste , unless such waste was delivered by the District or a Contractor or Franchisee , and the Company notifies the District, Contractor or Franchisee (as applicable) that the waste is Unacceptable Waste or Hazardous Waste before the District Contractor or Franchisee (as applicable) leaves the Facility Site . The District shall have no responsibility for the testing, management, removal , or disposal of Unacceptable Waste or Hazardous Waste that is identified as such after the delivery vehicle leaves the Facility Site . 5 , The District does not make and affirmatively disclaims any guarantees , warranties , or other representations concerning the quantity, quality , composition, or characteristics of any waste delivered to the Facility by the District, Contractors , Franchisees , and Residents 14 D . Diverted Waste . In the event of the Company ' s Refusal of a load delivered by the District or a Contractor, Franchisee, or Resident, the District may store or dispose of such material if it is delivered to the District ' s Landfill . Company shall pay to the District, as liquidated damages and not as a penalty, the cumulative difference each month between the applicable Processing Fee for such waste and the incremental cost, if any, of delivering (including incremental transportation costs , if any) and disposing and/or utilizing of such Acceptable Waste at the District ' s Landfill . Except as provided in Sections 4 . 1 . 13 and 4 . 1 . C . 2 , below, all such payments by Company shall be shown as deductions from the amount owed by the District, and shall be set forth in the next Monthly Billing Statement that Company presents to District after the date the District notifies Company in writing of the incremental cost, if any, of delivering and disposing and/or utilizing of its Acceptable Waste at the District ' s Landfill (which notice shall include such documentation as Company shall reasonably request verifying such cost) for the period of the Refusal . The Company reserves the right to reclaim any Diverted Waste , at its sole cost, that has not been mulched or disposed of at the Landfill . If the Company exercises this right, the Company shall remove and transport the Diverted Waste to the Facility at the Company ' s expense , and the District shall pay the Processing Fee (s) for any the Diverted Waste that is Processed . E . District to Supply Landfill Gas to Company . Subject to the requirements in Section 3 . 2 , below, and any applicable provisions of the Landfill Gas Agreement, the District shall deliver to the Company all of the Landfill Gas collected from the District ' s Landfill . The Landfill Gas shall be transported to the Facility via a blower system and pipeline provided by the Company . The District shall provide , and the Company shall purchase and use, all of the Landfill Gas collected by the District, except as otherwise provided herein . F . Ash Residue . Subject to the other provisions herein, District shall accept Ash Residue from the Company at the Landfill , up to a maximum amount of twenty thousand (20 , 000) Tons per Contract Year. If Ash Residue is accepted at the Landfill , District shall make a good faith effort to maximize the District ' s use of Ash Residue as alternate initial cover; however, the District shall not be obligated to use any Ash Residue as alternate initial cover, and the District shall have no liability to the Company, if the District determines such use will materially and adversely affect the District ' s operations . G . Public Education and Communications . The District and Company will work collaboratively to inform and educate the public , Contractors , Franchisees , and Residents about the new procedures and protocols for delivering Acceptable Waste to the Company ' s Facility, rather than the Landfill . H . Out of Coun1y Waste . The District shall have no obligation under this Agreement to accept any Out of County Waste at the Landfill . 15 I . Storm Debris . The District shall have the exclusive right to determine how the District will dispose of Acceptable Waste generated by a hurricane , natural disaster, or other event that produces unusually large quantities of Acceptable Waste (collectively, " Storm Debris ") . The District shall designate the Facility Site as one of the locations in the County that are deemed suitable for the management and disposal of Storm Debris and, thereafter, the District shall notify the Florida Department of Environmental Protection of this designation . The District shall make a good faith effort to direct as much Storm Debris to the Company as possible ; however, the District shall not be obligated to provide Storm Debris to the Company, and the District shall have no liability to the Company if the District in its sole discretion determines that it is not appropriate or otherwise in the District ' s best interests to provide Storm Debris to the Company . J . Limitations on Waste Disposal in Landfill . The District reserves its exclusive right to determine whether, and the extent to which , any type or quantity of solid waste may be disposed of in the Landfill . Notwithstanding anything else contained herein , the District shall have the right to prohibit the disposal of any material in the Landfill if the District, in its sole discretion, determines that the disposal of such material is not appropriate or otherwise in the District ' s best interests . The District also reserves the exclusive authority to establish restrictions concerning the use of the Landfill , including but not limited to restrictions concerning the times , conditions , and manner in which waste materials may be disposed of in the Landfill . However, any restrictions or limitations shall apply equally to all Persons . Section 3 .2 Company Responsibilities and Obligations . A. Accept and Process Acceptable Waste The Company agrees to accept and Process all of the Acceptable Waste delivered to the Facility Site by the District, Contractors , Franchisees , and Residents . B . Feedstock Delivery Plan . The Company shall prepare a Feedstock Delivery Plan , which shall describe the specific procedures that will be used by the Company to manage the ingress , unloading, and egress of the vehicles delivering solid waste to the Facility Site . The Company ' s procedures shall be designed to ensure that all vehicles delivering Acceptable Waste to the Facility Site will be able to enter, unload, and leave the Facility Site as expeditiously as possible . The Feedstock Delivery Plan also shall describe the procedures that shall be used by the Company when handling, testing, disposing, or otherwise managing any Unacceptable Waste or Hazardous Waste that is delivered to the Facility Site . The Feedstock Delivery Plan shall be provided to the District at least fourteen ( 14) days before the Company begins receiving deliveries of Acceptable Waste from the District, Contractors , Franchisees or Residents . 16 C . Weighing, Inspection and Record Keeping . 1 . The Company shall install scales on the Facility Site which shall be used to weigh each vehicle delivering materials to the Facility . The Company shall calibrate the scales before the Commencement Date and regularly thereafter throughout the term of this Agreement . The Company shall calibrate the scales at the Facility Site at least as frequently as the District calibrates its scales at the Landfill . The District shall have the right to observe the operations in Company ' s scale house during any time when vehicles are being received at the Facility Site for the delivery of waste . District may inspect and calibrate the scales at any reasonable time , not to exceed once per month, at the District ' s expense . 2 . Each vehicle shall be weighed on the scales operated by Company at the time of each delivery to the Facility Site . At the time of its first delivery and periodically thereafter, each vehicle shall be weighed empty to confirm the correct tare weights . 3 . District, Contractor and Franchisee vehicles will bear markings or decals reasonably satisfactory to Company to allow for proper and expeditious weighing and billing . Company, in its sole discretion , shall have the right to inspect the contents of any vehicle delivering material on behalf of the District to determine whether the delivered material complies with the requirements of this Agreement . 4 . Company shall keep adequate records concerning all deliveries . At . a minimum, the Company ' s records shall provide the following information for each delivery : the date ; time ; vehicle number; weight of delivered material ; and whether the material delivered was Acceptable Waste , Unacceptable Waste, or was Refused . The Company also shall determine and report whether the Person delivering waste was a Resident . D . Rejection of Deliveries . The obligations of Company with regard to the discovery of Hazardous Waste delivered by or on behalf of the District are as follows : (i) notify the District; (ii) take such action as the Company deems appropriate , consistent with the permits governing the Facility Site , directives of any regulatory agency or authority having jurisdiction and applicable law; (iii) remove such waste to a safe location , if necessary and practicable, within the Facility Site or, if necessary, from the Facility Site, all at the District's expense ; (iv) cooperate and assist the District with regard to the District' s obligation to promptly remove such waste from the Facility Site ; and (v) use due care with regard to such waste . The District shall reimburse Company, on demand, for reasonable out-of-pocket costs and expenses paid to third parties arising out of the delivery by the District to the Facility Site of Hazardous Waste . 17 E . Unacceptable Waste . In the event that materials are delivered to the Facility by the District, Contractors , Franchisees , or Residents as part of otherwise Acceptable Waste and the Company determines such materials are Unacceptable Waste, the Company may recover and divert all Recyclable Materials to the Landfill at no disposal cost. With regard to such Unacceptable Waste that the Company is unable to divert for recycling, the District shall allow the Company to dispose of such material at the Landfill , subject to the provisions of Section 3 . LJ and the other conditions herein . The Company will arrange for the non-recyclable Unacceptable Waste to be transported to and unloaded at the working face of the Landfill or other suitable location mutually- agreed-upon by both Parties , at the Company ' s sole cost . The District shall be paid the applicable fee for the disposal of such material , as provided in Exhibit 1 -B . F . Disposal of Ash Residue . 1 . Company shall be solely responsible for the disposal of Ash Residue produced by the operation of the Facility . 2 . Company shall be allowed to dispose of Ash Residue at the Landfill , subject to the other provisions herein, including but not limited to Sections 3 . LF and 3 . LJ, above . 3 . If the Company intends to deliver Ash Residue to the Landfill , the Company shall seek approval from the Florida Department of Environmental Protection for the use of Ash Residue as alternate initial cover at the Landfill . If approval is granted for this use , the District may use Ash Residue from the Facility at the Landfill for alternative initial cover or other approved , beneficial purposes . Under such circumstances , the Company shall be responsible for hauling the Ash Residue from the Facility and unloading the Ash Residue at the Landfill . The spreading and utilization of the Ash Residue at the Landfill shall be the responsibility of the District. 4 . Company shall test the Ash Residue, at Company ' s expense , and provide the District with such information as the District may reasonably request to evaluate the chemical , physical , and other characteristics of the Ash Residue before the Ash Residue is delivered to the Landfill . Company shall retest the Ash Residue whenever District reasonably requests additional data, not to exceed once per month. District may inspect, sample , and test Ash Residue at any time , at District ' s expense . 5 . If the Ash Residue is used as alternative initial cover, the Company shall pay the applicable fee (currently $ 5 . 15 per Ton) for such material , as described in Exhibit I -B . In the event that Company disposes of Ash Residue that is not utilized by the District for initial cover, Company shall pay the applicable disposal fee (currently $ 18 . 46 per Ton) , as described in Exhibit 1 -B . In either case , the cost of disposing of Ash 18 Residue shall be deducted from the District ' s payments to the Company, in the manner generally described in Section 4 . 1 . 13 , below. 6 . The Company ' s disposal cost for Ash Residue shall be calculated by multiplying the applicable disposal fee times the actual weight of the Ash Residue . The weight of the Ash Residue shall be measured at the District ' s scale house, or the Company ' s scale house, whenever a load of Ash Residue is delivered to the Landfill . G . Company ' s Responsibilities Regarding Landfill Gas 1 . Subject to the other conditions contained herein , Company shall take and use all of the Landfill Gas that is produced by District ' s Landfill , up to the design capacity of the Company ' s LFG Assets (i . e . , one thousand ( 1 , 000) standard cubic feet of LFG per minute) . 2 . Company shall be responsible , at its own cost, for the design , permitting, construction, connection, operation, maintenance , repair, and replacement of any capital improvements and equipment that need to be added to the District ' s existing Landfill Gas collection and flare system to (i) enable Company to divert Landfill Gas from the District ' s flare and transport such gas via pipeline to the Facility and ( ii) ensure the reliable delivery of the gas for Company ' s use . The exact location of any such improvements on the District ' s property and the general components of any necessary interconnection equipment and facilities shall be mutually agreed upon by Company and District prior to the commencement of construction . District shall provide Company with the necessary access , including easements as necessary, to the Landfill Gas system equipment located on the District ' s property for the purpose of allowing Company to perform its obligations under this Agreement . 3 . Notwithstanding the foregoing, the District shall control and be responsible for the operation and maintenance of the District ' s LFG Assets located between the Landfill and the Delivery Point (i . e . , the location where the District ' s LFG Assets will interconnect with the Company ' s LFG Assets) , 4 . On or before the LFG Commencement Date , Company shall install all of the necessary pipelines , improvements , and equipment needed to transport and use the Landfill Gas in the Facility . On or before the LFG Commencement Date , Company shall provide written certification to District that all such pipelines , improvements , and equipment are fully operational . 5 . Company shall install , calibrate , and maintain appropriate meters to measure the quantity and quality of the Landfill Gas . 19 6 . Company shall pay the rates set forth in Exhibit 3 -A for all of the Landfill Gas it receives from the District . T District shall have the exclusive right to determine, in its sole discretion , how the District ' s Landfill Gas collection system will be constructed and operated . District ' s primary goals shall be to minimize odors at the Landfill and ensure the District ' s compliance with the permits and laws governing the District ' s operations at the Landfill . 8 . District does not make and affirmatively disclaims any guarantees, representations , or warranties concerning the quality or quantity of the Landfill Gas that will be available to Company . 9 . Company reserves its right to reduce or terminate the flow of the Landfill Gas to the Facility, and thus divert part or all of the Landfill Gas to the District ' s flare, if the Facility ' s boiler is not operating, or if the sulfur content of the LFG exceeds twenty- one (2 1 ) pounds per hour. Company is not obligated to pay the District for the Landfill Gas that is diverted to the District ' s flare for these reasons . 10 . If Company fails to use all of the District ' s Landfill Gas for a period of thirty (30) consecutive days , or if the Company fails to use all of the District ' s Landfill Gas for a cumulative total of ninety (90) days within a period of three hundred and sixty- five (365 ) days , the District may terminate this Agreement by providing a notice of default pursuant to Section 6 . 2 . A, below. Notwithstanding the above, the Company shall not be in default of its obligations under this paragraph if the Company ' s LFG Assets are transporting and using the LFG at the design capacity described in Section 3 . 2 . G . 1 , above . In addition, the Company shall not be in default of its obligations under this paragraph if: (a) the Company ' s failure to use the District ' s Landfill Gas occurred because the sulfur content of the LFG exceeded twenty- one (2 1 ) pounds per hour or because of a similar problem with the quality of the LFG ; (b) the Company wishes to remedy the default caused by the elevated levels of sulfur or other constituents in the LFG ; (c) within thirty (30) days after receiving the notice of default, the Company provides the District with a reasonable , good faith plan for remedying the default as expeditiously as possible, through the use of Commercially Reasonable Efforts ; (d) the Company at all times works diligently and continuously to cure the default; and (e) the Company provides regular and frequent reports to the District concerning the status of its efforts to cure the default; provided, however, that if there is no reasonable likelihood that the Company will be able to cure the default within a reasonable period of time, the obligations of the Parties with respect to LFG (but not the remainder of the Agreement) shall terminate . 20 11 . The Company shall prepare and maintain detailed records concerning the operation of the system used to provide Landfill Gas to the Facility. At a minimum, the records shall identify : the amount of Landfill Gas provided to the Facility on an hourly basis ; the methane content of the Landfill Gas provided to the Facility on an hourly basis ; the dates and times when the Company diverts Landfill Gas to the District ' s flare ; and the dates and times when the Company stops diverting Landfill Gas to the District ' s flare . 12 . The Company shall be responsible for tracking, selling, and otherwise managing any environmental credits for reductions in carbon dioxide emissions , energy credits , or other environmental attributes associated with the Landfill Gas (collectively, " Credits ") and shall receive any compensation for same . The Company shall compensate the District for any Credits that are received and sold for the LFG, based on the monetary value of the Credits that would have been earned if the District continued to gather and flare the LFG . 13 , Both Parties wish to maximize the Company ' s use of the District ' s LFG . If the amount of available LFG exceeds the design capacity of the Company ' s LFG Assets, the Company shall use Commercially Reasonable Efforts to increase the design capacity of the Company ' s LFG Assets and , thus , more closely match the design capacity of the Company ' s LFG Assets to the actual quantity of LFG that is available to the Company . Section 3 .3 Applicable Laws, Ordinances and Regulations . Each Party shall comply with all laws , rules , regulations , ordinances , permits and requirements that are applicable to that Party ' s actions under this Agreement, including all applicable health and safety, anti - discrimination, affirmative action, and minority business opportunity laws . ARTICLE IV PAYMENTS AND FEES Section 4 . 1 Fees and Monthly Payments . A . Fees . 1 . In general , the Company and the District shall pay the fees that are required hereunder for the services that are provided in compliance with this Agreement. The District shall pay the Processing Fees set forth in Exhibit 1 -A . The Company shall pay the disposal fees set forth in Exhibit 1 -B . The Company also shall pay the fees set 21 forth in Exhibit 3 -A for Landfill Gas . Payments shall be made by the District for all of the Acceptable Waste that is Processed by the Company, even if such waste is Processed before the Commencement Date . Payments shall be made by the Company for all of the Landfill Gas that is used by the Company, even if such use occurs before the LFG Commencement Date . Beginning on October 1 , 2014 , all of these fees shall be adjusted annually in compliance with the procedures and restrictions set forth herein . 2 . The District shall pay the Processing Fee for each Ton of Acceptable Waste that is delivered to the Facility by the District, its Contractor, Franchisees , and Residents . The District also shall pay a Supplemental Processing Fee to the Company for each Ton of Acceptable Waste delivered on behalf of the District that is not Processed into Mulch and returned to the District . The District shall not pay the Supplemental Processing Fee for the Mulch (up to 25 , 000 Tons per Contract Year, as provided in Section 3 . 1 . A . 2 , above) that the District receives from the Company . 3 . Company shall be solely responsible for billing and collecting all of the Processing Fees and Tipping Fees for the use of its Facility.. 4 . If Acceptable Waste is delivered to the Facility by a Resident, the Company will collect Processing Fees and any applicable Supplemental Processing Fees from the District in lieu of collecting a fee from the Resident . However, Company shall be responsible for verifying the identification of each Resident that uses the Facility and maintaining appropriate records concerning the method of verification . 5 . The Tipping Fee (currently $ 22 . 00 per Ton) for receiving Land Clearing Debris shall be collected by the Company and paid to the District, after the Company deducts the Processing Fee and any applicable Supplemental Processing Fee for such material . Similarly, the Tipping Fee (currently $ 18 . 00) for receiving Mulch shall be collected by the Company and paid to the District, after the Company deducts any applicable Supplemental Processing Fee for such material . 6 . As shown in Exhibit 1 -B , the Company shall pay a disposal fee (currently $ 18 . 46 per Ton) to the District for the disposal of Unacceptable Waste and " other materials not suitable for Company operations . " This disposal fee shall only apply to the first ten thousand ( 10 , 000) Tons of such waste that are delivered to the Landfill by the Company during a Contract Year. If the Company delivers more than ten thousand ( 10, 000 ) Tons of such waste to the Landfill in any Contract Year, the District shall be paid the District ' s standard "gate rates " for all of the waste that exceeds ten thousand ( 10 , 000) Tons . The gate rates are established by the County each year and adopted by County resolution . The gate rates are based on the type of material (e . g. , waste tires ; garbage ; C & D Waste) that is delivered to the Landfill for disposal . 22 7 . The disposal fee (currently $ 18 . 46 per Ton) for Ash Residue is based on the factors described in Exhibit 1 - C . This disposal fee shall be established by the County each year, based on the factors described in Exhibit 1 - C , and adopted by County resolution . B . Monthly Billing Statement On the fifth day of each month, starting with the first month after the Commencement Date , the Company shall provide a Monthly Billing Statement to the District . The Company shall also provide a Monthly Billing Statement in any month that the District provides Acceptable Waste to Company pursuant to Section 2 . 1 . C . The Monthly Billing Statement shall set forth in detail all of the information reasonably needed to determine the amount of money that is owed to the Company, and the amount of money that is owed to the District, for the services they provided pursuant to this Agreement during the prior month . The back-up data and records required to evaluate Company ' s calculations shall be promptly provided to District upon request . At a minimum, the Monthly Billing Statement shall identify : 1 , the total number of Tons of Acceptable Waste that were delivered to the Facility by the District, its Contractors and Franchisees , and Residents , as well as the total amount of such waste that was Processed in the Facility in compliance with this Agreement; 2 . the dollar amount owed to Company for Processing Acceptable Waste for the District; 3 . the amount of Ash Residue , unprocessible waste , and other material , respectively, that Company delivered to the Landfill for disposal ; 4 , the dollar amount owed to District for the disposal of Company ' s Ash Residue and other materials ; 5 . the total amount of Landfill Gas provided to the Facility; 6 , the dollar amount owed to District for its Landfill Gas ; 7 , the dollar amount of any Tipping Fees that were collected by the Company ; 8 , the dollar amount of any fees that were collected by the Company and remitted to the District; 9 , any other amount owed by District to Company, and any other amount owed by Company to District, respectively, in accordance with this Agreement; and 23 10 . the net dollar amount that is to be paid by the District to the Company, or paid by the Company to the District, as the case may be . C . Monthly Payments by the Parties . 1 . Upon receipt of the Company ' s Monthly Billing Statement, the District may verify any of the information contained therein . The District shall pay all undisputed amounts in compliance with the Florida Prompt Payment Act, Sections 218 . 70 et seq . , Florida Statutes . If the District disagrees with any amounts , calculations , or other information set forth in a Monthly Billing Statement , the District shall notify the Company of the dispute no later than the payment due date and the Parties shall immediately attempt to resolve their dispute , in accordance with Section 8 . 1 . 2 . If the Monthly Billing Statement indicates that there is a net debt owing from the Company to the District, Company shall pay its debt within fifty (50) days after the end of the month that is addressed in the Monthly Billing Statement . If the District disputes a Monthly Billing Statement and the dispute resolution process results in a determination that there is a net debt owing from the Company to the District, Company shall pay its debt within thirty (30) days after the completion of the dispute resolution process . Section 4 . 2 Annual Reconciliation . Within sixty (60) days of the end of each Contract Year, the Company shall provide the District with a year-end statement, which shall set forth the sum of all charges , credits , and deductions required under this Agreement for the Contract Year, and a total of all payments made by District to Company and a total of all payments made by Company to District for the Contract Year. The Company ' s statement shall provide complete documentation for any charges and claims not previously submitted to the District. The year- end statement shall be the final reconciliation of all of the Company ' s charges and claims for the Contract Year. Any claims omitted from the statement shall be permanently waived by the Company . The District shall review the statement and pay any uncontested amounts in compliance with the Florida Prompt Payment Act, Sections 218 . 70 et seq . , Florida Statutes . Within sixty (60) days after receiving the Company ' s year-end statement, District shall provide the Company with its own statement for any charges and claims that the Company is obligated to pay to District under this Agreement. Any claims omitted from the statement shall be permanently waived by the District . Company shall pay any uncontested amounts to the District within forty- five (45 ) days after receiving the District ' s statement . If the District or Company contest any amount requested in a year- end statement, the contested amount shall be submitted to dispute resolution in the manner provided in Section 8 . 1 herein . 24 Section 4 .3 CPI and HHI Adiustments The Company ' s Processing Fee , Supplemental Processing Fee , and District ' s Ash Residue Fee , and Landfill Gas Price shall not be increased before October 1 , 2014 . On October 1 , 2014 and each October 1 thereafter, the Processing Fee and Supplemental Processing Fee , and District ' s Ash Residue Fee shall be adjusted upward or downward to reflect fifty percent ( 50%) of the change in the CPI that occurred during the prior year. The change in the CPI shall be calculated by using the CPI Adjustment Factor . Notwithstanding anything else contained herein , the Processing Fee and Supplemental Processing Fee , and District ' s Ash Residue Fee shall not be adjusted, up or down , more than three percent (3 %) in any Contract Year. On October 1 , 2014 and each October 1 thereafter, the District ' s Landfill Gas Price shall be adjusted upward or downward to reflect fifty percent (50 %) of the change in the Henry Hub Index (HHI) that occurred during the prior year. The change in the HHI shall be calculated by using the HHI Adjustment Factor. Notwithstanding anything else contained herein, the District ' s Landfill Gas Price shall not be adjusted, up or down, more than three percent (3 % ) in any Contract Year, The Company shall provide a written notice of the proposed adjustment and appropriate documentation to the District no later than August 31 , 2014 and each August 31 thereafter. Each such adjustment shall become effective on October 1St Section 4 .4 Fee Adiustments Based on Market Conditions Subject to the conditions contained in this Section 4 . 4 , the Parties shall periodically evaluate the prevailing market conditions and then adjust, if necessary, the Processing Fee and/or Supplemental Processing Fee paid to the Company. The market evaluations shall be conducted immediately following the end of the seventh Contract Year and the fourteenth Contract Year. Each market evaluation shall be conducted by an engineer or consultant ("Independent Engineer") that is knowledgeable about the solid waste market in Florida. The Independent Engineer shall be selected by the Parties . Before either Party recommends any Person to serve as the Independent Engineer, the Party shall solicit and fairly consider any objections that the other Party may have concerning such Person . The cost of the Independent Engineer ' s market evaluation shall be paid equally by both Parties . In general , the Independent Engineer shall determine the costs that would be incurred by the District if, hypothetically, the District elected to use another Person to provide the basic solid waste disposal services that will be provided by the Company pursuant to this Agreement. For the purposes of this market evaluation, the Independent 25 Engineer shall consider the possibility of using the services of a Person or solid waste management facility located within one hundred fifty ( 150) miles of Indian River County, Florida . The Independent Engineer shall not consider the use of a Person or facility that is more distant, unless the Independent Engineer is unable to identify three (3 ) suitable Persons and/or facilities within one hundred fifty ( 150) miles . Under such circumstances , the Independent Engineer shall consider more distant areas , but shall not look any further than is necessary to find three (3 ) suitable Persons and/or facilities , and the Independent Engineer shall not look beyond the State of Florida . The Independent Engineer shall evaluate two basic solid waste disposal services : (a) the production of Mulch from the District ' s Acceptable Waste and (b) the disposal of the District ' s Acceptable Waste . For each of these services, the Independent Engineer shall identify three (3 ) Persons and/or facilities that will offer the lowest costs to the District, based on operations that are reasonably comparable to the Company ' s operations—i . e . , the management of approximately thirty thousand (30 , 000) to fifty thousand ( 50 , 000) Tons per year of Acceptable Waste pursuant to a written contract . After identifying and quantifying the cost of using the three (3 ) lowest cost alternatives , the Independent Engineer shall calculate the total cost of using each Person and/or facility that is being evaluated as a potential alternative to the Company ("Total Alternate Cost") , The Total Alternate Cost for each Person and/or facility shall be calculated by using the following formula : Total Alternate Cost = (PPF x MT) + (PSPF x DT) Where : PPF = the proposed processing fee for producing Mulch MT = the number of Tons of Mulch that the Company delivered to the District during the previous Contract Year PSPF = the proposed supplemental processing fee for disposing of Acceptable Waste DT = the number of Tons of Acceptable Waste that the Company disposed of for the District during the previous Contract Year After calculating the Total Alternate Cost, the Independent Engineer shall determine the average cost of using the three alternative Persons and/or facilities ("Average Alternate Cost") . The Average Alternate Cost shall be calculated by adding the Total Alternate Cost for the three (3 ) alternatives and then dividing the sum by three (3 ) • 26 The Independent Engineer shall compare the Average Alternate Cost to the total amount that was paid to the Company in the previous Contract Year for producing Mulch and disposing of the District ' s Acceptable Waste ("Total Company Cost") . When calculating the Total Company Cost, the Independent Engineer shall use (a) the same tonnage values that were used for MT and DT, respectively, when calculating the Total Alternate Costs and (b) the Company ' s then current Processing Fee and Supplemental Processing Fee . If the Total Company Cost is five percent (5 %) or more greater than the Average Alternate Cost , the Company ' s Processing Fee and Supplemental Processing Fee shall each be reduced by an amount (percentage) sufficient to reduce the Total Company Cost to a level that is equal to the Average Alternate Cost . If the Total Company Cost is not greater than the Average Alternate Cost by five percent (5 %) or more, or if the Average Alternate Cost is greater than the Total Company Cost, there shall be no adjustment to the Company ' s fee . The Independent Engineer shall submit a draft report to the Parties concerning the Independent Engineer ' s market evaluation . The draft report shall contain the Independent Engineer ' s preliminary determination as to whether, and the extent to which, the Processing Fee and the Supplemental Processing Fee should be adjusted, based on the requirements set forth above in this Section 4 . 4 . The Parties shall have thirty ( 30) days to provide comments and information to the Independent Engineer concerning the draft report and preliminary determination . The Independent Engineer shall fully and fairly consider all of the comments and information provided by the Parties before the Independent Engineer issues a final report and determination . Based on his or her evaluation of the issues set forth in this Section 4 . 4 , the Independent Engineer ' s final report shall contain the Independent Engineer ' s final determination as to whether, and the extent to which , the Processing Fee and Supplemental Processing Fee should be reduced . The Independent Engineer ' s final determination about any such adjustments shall be final , binding upon both Parties , and non- appealable . The adjustments to the Processing Fees , if any, shall be reflected in the next Monthly Billing Statement that is issued after the Independent Engineer issues the final report and determination . The adjustments to the Processing Fees , if any, shall be applied retroactively to (a) the first day of the eighth Contract Year, if the market evaluation was. began immediately after the end of the seventh Contract Year, or (b) the first day of the fifteenth Contract Year, if the market evaluation was begun immediately after the end of the fourteenth Contract Year. Notwithstanding the foregoing requirements , if the Company reasonably concludes that the Processing Fee recommended in the Independent Engineer ' s final report is less than the Company ' s cost of Processing Acceptable Waste into Mulch for the 27 District, the Company may refuse to Process the District ' s Acceptable Waste into the twenty- five thousand (25 , 000) Tons per Contract Year of Mulch ( See Section 3 . lA2 ) for the Processing Fee recommended in the Independent Engineer ' s final report . Under such circumstances , the District may elect one of the following options : (a) the District may continue to pay the then current Processing Fee , in which case the Company shall continue to provide Mulch to the District; (b) the District may negotiate a reduction in the Processing Fee that is mutually acceptable to both Parties , in which case the Company shall continue to provide Mulch to the District; or (c) the District may engage the services of another Person to provide Mulch for the District, up to a maximum amount of twenty- five thousand (25 ,000) Tons per Contract Year. If the District elects to use the services of another Person to obtain the twenty-five thousand (25 , 000) Tons per Contract Year of Mulch, the Parties ' obligations in this Agreement concerning Mulch shall be deemed to have been modified or terminated, as appropriate, to enable the Parties to achieve their respective goals under this paragraph . Section 4 . 5 Audits . The Company shall allow the District to inspect, copy, and audit all of the documents and records required to be maintained pursuant to this Agreement . The Company shall cooperate with the District to ensure that all appropriate documents and information are provided to the District in a timely and complete manner. Section 4 .6 Preferred Rates for the District. The Processing Fee and Supplemental Processing Fee paid by the District shall not at any time be greater than the corresponding Processing Fee and Supplemental Processing Fee paid by any other Person that delivers Acceptable Waste to the Facility, provided such Person delivers quantities of Acceptable Waste that are comparable to or greater than the quantities delivered by the District . ARTICLE V FORCE MAJEURE A delay or failure of performance hereunder by either Party shall not constitute an event of default or cause for any liability under this Agreement to the extent caused by a Force Majeure event . Such delay or failure shall be excused at any time performance is materially and directly affected by a Force Majeure and during such period thereafter as may be reasonably necessary for the Party so affected, using Commercially Reasonable Efforts , to correct the adverse effects of such Force Majeure . 28 The Party relying on a Force Majeure event as justification for a delay or failure of performance hereunder shall give the other Party notice by telephone as soon as reasonably practicable , followed by written notice within seven (7) days , of the Force Majeure event . The notice shall identify the event, the anticipated effect on the Party ' s performance , the anticipated duration of any non-performance , and the measures being taken to reduce or eliminate the cause of the non-performance . The provisions of this Article V shall not relieve a Party from its obligation to use Commercially Reasonable Efforts to overcome or remove the effects of such Force Majeure . ARTICLE VI TERM, DEFAULT AND TERMINATION Section 6 . 1 Term ; Renewals . The term of this Agreement shall commence on the Effective Date and continue for a period of twenty (20) years (the "Initial Term") following the Commencement Date , unless terminated earlier in the manner provided herein . The Parties shall have the right to extend this Agreement for up to two (2 ) consecutive ten-year renewal terms ("Renewal Terms ") , provided Company and District mutually agree to extend this Agreement in writing at least one hundred eighty ( 180) days prior to the end of the Initial Term or the then current Renewal Term . All renewals shall be subject to the same terms , conditions , and fees set forth herein , unless agreed to otherwise in writing by both Parties in an amendment to this Agreement . Section 6 . 2 Default and Termination . A . Events of Default. Either Party may immediately terminate this Agreement for cause , without prejudice to any other rights or remedies the terminating Party may have under the law, except as provided herein, when there is an event of default by the other Party. An event of default shall occur if the other Party shall ( 1 ) suspend or liquidate its business, (2) become insolvent or subject to a petition of involuntary bankruptcy and the appointment of a trustee or receiver, or (3 ) make an assignment for the benefit of creditors , other than as permitted in Section 8 . 3 . A. An event of default also shall occur if a Party fails to perform a material obligation under this Agreement and such failure is not cured, or a good faith reasonable plan to correct the failure within sixty (60) days is not implemented, within thirty (30) days after notice of the default is provided by the non- defaulting Party to the defaulting Party . A failure to perform a material obligation under this Agreement shall include , but not be limited to , 29 ( 1 ) the Company ' s Refusal of part or all of the Acceptable Waste delivered to the Facility Site by the District, Contractors , Franchisees , and/or Residents on thirty ( 30) consecutive days , and (2 ) the Company ' s failure to satisfy the requirements in Section 3 . 2 . G . 10 , above, concerning the use of LFG . B . Remedies . In the event of a breach by a Party of any of its obligations hereunder, the other Party shall have the rights specified herein, and any remedy to which it is entitled at law or in equity for such breach, subject to Subsection 6 . 2 . C , below . C . Exclusivity of Remedies . Neither Party shall be liable for or obligated to pay punitive , consequential , special , incidental or indirect damages in connection with the performance of this Agreement. D . Survival of Obligations . Notwithstanding the expiration or the termination of this Agreement pursuant to its terms , any duty or obligation of a Party which has not been fully observed , performed and/or discharged and any right, unconditional or conditional , which has been created for the benefit of a Party and which has not been fully enjoyed, enforced and/or satisfied (including but not limited to the duties , obligations and rights , if any, with respect to secrecy, indemnity, warranty, and guaranty) shall survive such expiration or termination until such duty or obligation has been fully observed, performed or discharged and such right has been fully enjoyed, enforced and satisfied. ARTICLE VII INDEMNIFICATION AND INSURANCE Section 7 . 1 Indemnification To the extent permitted by law Company shall defend, protect, hold harmless and indemnify District, its Commissioners , directors , officers , employees , and agents and contractors of any tier, or any of them (the "District Indemnified Persons " ) from and against any cost, expense, loss , claim or liability whatsoever, including the cost of attorneys ' fees and appeals , for injury to any person or loss or damage to any property arising out of: (a) the negligence or wrongful misconduct of Company, its directors or partners (as applicable) , officers , employees , other agents or contractors of any tier; (b) the failure of or by Company, its directors or partners (as applicable) , officers , employees , other agents or contractors of any tier to comply with applicable law or regulations of federal , state or local governments ; (c) the performance or failure to perform of the Company under this Agreement; and (d) any breach by Company of any representation or warranty made in this Agreement . Company is not required to hold 30 harmless or indemnify any District Indemnified Person for any cost, expense , loss , claim or liability to the extent caused by any District Indemnified Person' s negligence or reckless misconduct. Section 7 .2 General Liability Insurance A . If any Contractor or Franchisee will enter the Facility Site while performing services for or on behalf of the District under this Agreement, such Contractor shall obtain and maintain throughout the Initial Term and any Renewal Terms of this Agreement at its expense the following insurance coverage from insurers who are licensed in the State of Florida and have a current rating of B+ or better in "Best's Key Rating Guide" : 1 . Workers ' Compensation Insurance . Workers ' compensation coverage must be maintained in accordance with current statutory requirements ; 2 . Employer's Liability Insurance . Employer ' s liability coverage shall have a minimum limit of liability of $ 100, 000 per occurrence , $ 100 , 000 by disease , and $ 500 , 000 aggregate by disease ; 3 . Liability Insurance . Commercial general liability insurance and automobile liability shall have a minimum combined single limit of liability of $ 1 , 000 , 000 for personal bodily injury, including, without limitation , death, and property damage . 4 . Excess Coverage . Umbrella or excess liability coverage in the amount of $ 5 , 000 , 000 shall be maintained . B . Notwithstanding the minimum limits of coverage stated in subsection A above , the limits of each underlying insurance coverage must be at least as high as is necessary to support the excess liability insurance coverage . C . If the Company ' s personnel or vehicles will enter the Landfill property to perform services for the Company under this Agreement, the Company shall obtain and maintain the types and amounts of insurance coverage required in Section 7 . 2 . A, above , for the employees and vehicles that will enter the District ' s Landfill property. Section 7 .3 Environmental Impairment Insurance. The Company shall procure environmental impairment insurance prior to the Commencement Date and Company shall maintain such insurance in full force and effect at all times thereafter during the term of this Agreement . The environmental impairment insurance shall provide coverage with minimum limits of $ 2 , 000 , 000 per occurrence, if an occurrence form is available, or with a "claims made " form with "tail coverage" 31 extending three ( 3 ) years beyond the termination or expiration of this Agreement . Proof of insurance shall be provided to the District at least fifteen ( 15 ) days before the Commencement Date . Proof of tail coverage shall be submitted with the Company ' s invoice for its final payment. In lieu of tail coverage , the Company may submit annually to the District a current certificate of insurance proving that claims made insurance remains in force throughout the same three (3 ) year period. Such insurance shall provide coverage for pollution and environmental remediation . The form and content of the insurance coverage , as well as the financial stability of the company issuing the insurance , shall be subject to the prior review and approval of the District . The District shall be added as a named insured on the insurance policy, but only with regard to liability arising as a result of the District ' s delivery of solid waste to the Facility Site pursuant to this Agreement and resulting from contamination , pollution, or other environmental , conditions on the Facility Site , Section 7.4 Proof of Financial Responsibility, The Company shall provide the District with an irrevocable "direct pay" letter of credit issued by a national banking company authorized to do business in the State of Florida. The form and substance of the letter of credit shall be subject to the prior review and approval of the District. The letter of credit shall be issued in the amount of Two Hundred Thousand Dollars ($ 200 , 000 . 00 ) . The letter of credit shall be used to ensure the performance of the Company under this Agreement . ARTICLE VIII GENERAL TERMS Section 8 . 1 Dispute Resolution , The Parties shall attempt to resolve any and all disputes to the mutual satisfaction of both Parties by good faith negotiations . Whenever a Party desires to initiate the dispute resolution process set forth in this section , it shall do so by delivering a dispute notice to the other Party . Within ten ( 10) days after the delivery of a dispute notice , the Parties shall meet for the purpose of negotiating a resolution of the dispute . The Parties will use their best efforts to informally resolve the dispute within forty-five (45 ) days after the date of the written notice . If the dispute has not been resolved to either Party ' s satisfaction during this time period, the requirement for informal negotiations shall be satisfied. The Parties may , by mutual agreement, extend the period for informal negotiations . Nothing in this section shall prevent either Party from seeking judicial remedies in a court of law at any time . 32 Section 8 . 2 Representations and Warranties of Parties . The Parties represent and warrant to each other that upon execution of this Agreement : (A) each Party is duly organized and existing and in good standing under the laws of the state of their creation; (B) the Parties have the power and authority to enter into this Agreement and to carry out their respective obligations hereunder; (C) the Parties have taken all legal actions necessary to authorize them to enter into and perform their respective obligations hereunder; (D) entering into and performing this Agreement does not violate any statute , rule , regulation, order, writ, injunction, or decree of any court, administrative agency, or governmental body or violate any agreement by which a Party is bound ; (E) this Agreement has been duly entered into by the Party and constitutes a legal , valid, and binding obligation of the Party ; (F) there is no litigation or proceeding pending or threatened against a Parry which could materially or adversely affect the performance of this Agreement; and (G) the Parties have obtained all permits and approvals as may be required to authorize their respective performance of the obligations of this Agreement . Except as expressly provided herein , the Parties make no representations or warranties and waive no rights or remedies . Section 8 .3 Miscellaneous . A . Assignment. This Agreement shall not be assigned by either Party without the prior express written consent of the other Party , which shall not be unreasonably withheld . Notwithstanding the above, Company may assign the Agreement to an affiliate company or to a trustee or lender in connection with the financing or refinancing of the Facility, without obtaining the District ' s prior approval . A permitted assignment shall neither be effective nor relieve a Party of its obligations under this Agreement unless this Agreement shall have been assumed by the assignee . B . Relationship of the Parties ; Beneficiaries . 1 . This Agreement reflects an arms - length transaction . Nothing herein shall create a fiduciary, partnership , joint venture or employment or other agency relationship between the Parties . 2 . This Agreement is not entered into for the benefit of, nor are any rights granted to , any third party . 3 . It is recognized that the District will discharge some of its responsibilities through Contractors or Franchisees . The District shall be solely responsible for executing any necessary contracts with Contractors and Franchisees . Any such contract shall be entered into by the District as an independent contractor and not as a representative of Company. 33 4 . It is recognized that the Company may discharge some of its responsibilities through subcontractors . The Company shall be solely responsible for executing any necessary contracts with subcontractors . Any such contract shall be entered into by the Company as an independent contractor and not as a representative of the District . C . Further Assurances . Each Party agrees to execute and deliver any instruments and to perform any action that may be necessary or reasonably requested in order to give full effect to this Agreement . Each Party shall use all reasonable efforts to provide such information, execute such further instruments and documents , and take such action as may be reasonably requested by the other Party, not inconsistent with the provisions of this Agreement and not involving the assumption of obligations other than those provided for in this Agreement, to carry out the intent of this Agreement . D . Notices . Any notices or communications required or permitted under this Agreement shall be in writing and may be either delivered in person, transmitted by telecopy followed by a mailed confirmation copy, or sent by recognized express mail or courier service , postage prepaid, at the following addresses of the Parties . Notices sent under this Agreement shall be deemed received upon actual receipt . Facsimile is acceptable notice and is effective when received ; however, facsimiles received (i . e . , printed) after 5 : 00 P . M . will be deemed received on the next business day . The original of a notice must still be mailed as required herein . Changes in the telephone numbers through which telecopy may be transmitted or the address to which notices are to be delivered may be made by written notice given in accordance with this Subsection . As to County : County Administrator Indian River County Administration Building 1801 27th St . - Vero Beach , FL 32960 Phone : (772) 226 - 1408 FAX : (772) 978 - 1822 and a copy to the County Attorney at the same address Phone : (772) 226- 1424 FAX: (772) 569 -4317 34 As to Company : Site Director 92574 1h Avenue SW Vero Beach, Florida, 32968 - 9702 Phone : (772) 562 - 9662 FAX : 772 567 8557 and a copy to the Company Attorney at : 3030 Warrenville Road Suite # 650 Lisle , Illinois , 60532 USA E . Waivers . No provision of this Agreement shall be deemed waived without the express written consent of the Party granting the waiver. The waiver by either Party of a default or a breach of any provision of this Agreement by the other Party shall not operate or be construed to operate as a waiver of any subsequent default or breach . The making or the acceptance of a payment by either Party with knowledge of the existence of a default or breach shall not operate or be construed to operate as a waiver of any subsequent default or breach . F . Entire Agreement; Modifications ; Exhibits . The provisions of this Agreement (except captions) , including the exhibits annexed hereto , shall (a) constitute the entire agreement between the Parties , superseding all prior or contemporaneous negotiations , understandings or agreements and (b) not be modified in any respect except by express written agreement executed by the Parties . The exhibits attached hereto are incorporated by reference . In the event of any conflict between the text of this Agreement and such exhibits , the text of this Agreement shall govern . G . Headings . Captions and headings in this Agreement are for ease of reference only and do not constitute a part of this Agreement . Captions and headings shall not be deemed to affect the meaning or construction of any of the terms or provisions hereof. H . Counterparts . This Agreement may be executed in more than one counterpart , each of which shall be deemed to be an original . 35 I . Venue . Any and all suits for breach of this Agreement shall be instituted and maintained in a state or federal court of competent jurisdiction having jurisdiction over Indian River County, Florida . J . Governing Law and Construction . This Agreement and any questions concerning its validity, construction and performance shall be governed by the laws of the State of Florida, without giving effect to any conflicts - of- law rules requiring the application of the substantive laws of other jurisdictions . The language of this Agreement shall be construed according to its fair meaning , not strictly for or against the Company or District, and not against either Party as its drafter, because both Parties agree they had an equal hand in drafting this Agreement . The singular shall include the plural ; use of the feminine , masculine , or neuter genders shall be deemed to include the genders not used . K . Waiver of Jua Trial , Each Party hereby knowingly, willingly, and irrevocably waives its right to a trial by jury concerning claims arising under this Agreement . L . Severability . In the event that any provision of this Agreement shall , for any reason, be determined to be invalid, illegal , or unenforceable in any respect, the Parties shall negotiate in good faith and agree to such amendments , modifications or supplements of, or to , this Agreement or such other appropriate changes as shall , to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the Parties as reflected herein, and the other provisions of this Agreement shall , as so amended, modified, supplemented, or otherwise effected by such action remain in full force and effect . M . Binding Agreement . This Agreement, which has been duly authorized, executed and delivered by the respective Parties , constitutes a legal , valid and binding obligation enforceable in accordance with its terms , except as enforcement may be limited by bankruptcy, insolvency, reorganization , moratorium or similar laws affecting the enforcement of creditors ' rights generally, or by general equitable principles concerning remedies . N . Reasonableness Standard. All determinations , consents , reviews and approvals to be granted and conducted by the Parties under this Agreement and any other acts calling for the exercise of discretion shall be performed in good faith and, unless otherwise so specified, under a standard of reasonableness that is consistent with normal industry practices for the type of work involved. Where time periods are not specified , a reasonable period of time shall be allowed. O . Attorney Fees . In any civil judicial action brought to enforce the provisions of this Agreement, the prevailing party may recover from the non-prevailing 36 party all reasonable court costs , including attorney' s fees and court preparation costs , and including any appeals thereof. P . Time of Essence . The Parties each understand and acknowledge that time is of the essence of this Agreement. Q . Publicity and Property Rights . District shall not advertise or otherwise use its relationship with Company hereunder in any public disclosure without the prior written consent of Company . Such prohibition shall include , without limitation, brochures , listings , references , advertisements, announcements or other release of information concerning the existence , content or performance under this Agreement to any third party . District shall not be permitted any photographing, filming, taping or other audio or visual recording at the Facility unless prior express written consent is obtained from Company . District shall not use or permit the use of the trade or service names , marks or logos of Company or any of its Affiliates in any manner without the express written consent of Company . The express consent of the Company required herein may be withheld in the absolute and complete discretion of Company. District ' s obligations under this Subsection 8 . 3 . Q shall survive the expiration or termination of this Agreement. R. Cooperation and Release of Information . District shall cooperate with Company ' s requests for public information and District shall release public records concerning the District, its Contractors , and its Franchisees , when such documents are requested by Company in compliance with Chapter 119 , Florida Statutes . S . Sovereign Immunity. Nothing in this Agreement is or shall be construed as a waiver of the District ' s sovereign immunity or the limitations on liability set forth in Section 768 . 28 , Florida Statutes . T . Records Retention . All records required to be prepared or maintained by the Company or District shall be retained by the Company or District, respectively, for at least five ( 5 ) years after the date when the records are prepared . U . Future Activities . The Company ' s response to the County ' s 2008 Request for Proposals contemplated that the Facility would be able to Process a wide variety of different types of solid waste (e . g . , MSW ; C &D Waste ; Vegetative Waste) . The Parties have elected to defer implementation of a Process with respect to other types of solid waste other than Vegetative Waste . If the Company elects to Process other types of solid waste at the Facility in the future , the Parties shall negotiate in good faith to expand the list of materials that the District may deliver to the Facility for Processing, provided such Processing can be accomplished in a manner that is cost- effective , environmentally- sound, and otherwise in the public interest . 37 IN WITNESS WHEREOF , the Parties have caused this Agreement to be executed by their respective authorized representatives . ATTEST : Jeffrey K. Barton, Clerk INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT °pPw COMM/6 i B By : C:� Deput41er Bob Solari , Chairman .0 6 Y 0 8 pr A ° District Approved : June . 2. 1 , 2 �. o .•VV ; a F66 " o° Q�a000ao°pO° APPROVED . By : Jose A. Baird County Administrator APPROVED AS TO LEGAL FORM AND SUFFICIENCY : By : J� Alan S . Pola wi s r. County Atto ey COMPANY . INEOS NEW PLANET BIOENERGY , LLC . oe 000 WITNESSES : By : W Name : UV .0. ( �� Title : e �' Dated 38 EXHIBIT I -A PROCESSING FEES PAID TO COMPANY Processing Fees : In exchange for Processing Acceptable Waste delivered to the Facility by the District, its Contractors , Franchisees , and Residents , Company shall be paid Processing Fees and Supplemental Processing Fees for such materials as follows : 11 4 VaterialXattigory • PROCESSING FEE Acceptable Waste, District, Contractors , $ 9 . 25 per Ton including Land Franchisees, or SUPPLEMENTAL District Clearing Debris Residents PROCESSING FEE $ 5 . 15 per Ton 39 EXHIBIT I -B DISPOSAL FEES PAID TO DISTRICT Ash Residue and Related Materials Not Suitable for Production of Ethanol 'Suppiv Ash Residue delivered by Company to District Company Landfill for initial cover $ 5 . 15 per Ton $ 18 . 46 Company Ash Residue not used for initial cover Other materials not suitable for Company Company operations ( up to 10, 000 tons per Contract Year) $ 18 . 46 1 . 40 EXHIBIT 1 - C Estimated Cost to Landfill Ash Product from INPB — FY 2010/ 11 I Ile ' Ixpehse D - • Landfill Operations Contract ( Republic ) $ 13 . 99 (1 ) Landfill Closure Costs $ 1 . 12 (2) Long-term Care Costs $ 0 . 54 (3) Land Costs $ 0 . 73 (5) Support Facilities Costs $ 0 . 39 (6) General & Administrative Costs $ 1 . 69 (4) Total Estimated Costs $ 18 . 46 (1) This is the current cost of the County 's contract with Republic Services to place material in the Class 1 landfill. Future year unit costs will be adjusted based upon changes in the Consumer Price Index for the Southeast region of the United Sates. (2) Estimated landfill closure costs based upon FY 2009/10 Financial Assurance Report completed by CDM, effective January 2011 . Segment 11 has a total capacity of 4, 058, 000 cubic yards, and an estimated closure cost of $4, 556, 982. For purposes of this analysis 1 cubic yard is estimated to be equivalent to 1 ton of waste. (3) Estimated long- term care costs based upon FY 2009/10 Financial Assurance Report completed by CDM, effective January 2011 , Segment III has a total capacity of 14, 051, 755 cubic yards, and estimated inflation adjusted long-term care costs of $ 7, 520, 000 over the required thirty-year period. For purposes of this analysis 1 cubic yard is estimated to be equivalent to 1 ton of waste. (4) The current General & Administrative rate of 10. 0613 % for FY 2010/11 has been applied to the other costs to arrive at the estimated overhead costs (5) Based upon total cost of all land acquired for the landfill location and total cubic yards for segments I through III per CDM Financial Assurance Reportfor 2011 . (6) Based upon acquisition cost of landfill improvements, except closure assets divided by total cubic yards for segments I through 111 per CDM Financial Assurance Reportfor 2011 . 41 EXHIBIT 2 A. SPECIFICATIONS FOR ACCEPTABLE WASTE Acceptable Waste shall conform to the following specifications : 1 ) "Acceptable Waste" shall mean Vegetative Waste and woody material resulting from landscaping maintenance , Land Clearing Debris , tree and shrub trimmings , palm fronds , trees , tree stumps , cellulose materials , clean wood from land development operations , and clean wood that is removed from Construction and Demolition Waste . It shall not include garbage , sludge , medical waste, biological waste , or Unacceptable Waste . 2) Acceptable Waste shall be substantially free of plastics , rubber, and other synthetic materials . Acceptable Waste also shall be substantially free of wood that has been chemically treated with chromium, copper, and arsenic solutions , creosote , pentachlorophenol , paint, or other preservatives . 3 ) Substantially free means the prohibited material must be less than one percent ( 1 %) of the total load by weight 4) In a load of Acceptable Waste , less than five percent (5 % ) by weight may be sand, soil , or other inorganic material (e . g . , metal ; concrete) . 5 ) Acceptable Waste shall be free of any regulated quantity of hazardous waste or hazardous substance , as now or hereafter (during this Agreement) defined or classified by any applicable U . S . , State of Florida or County agency with jurisdiction over the Facility . Acceptable Waste shall not contain substances in quantities that are prohibited by Company ' s permits , as the same may be amended from time to time . 42 B. DEFINITION OF UNACCEPTABLE WASTE Unacceptable Waste includes , but is not limited to , the following : 1 ) Materials that do not satisfy the specifications for Acceptable Waste , above ; 2) Explosives ; 3 ) Lead Acid batteries ; 4) Mercury- containing devices and lamps ; 5 ) Medical waste ; 6) Tires , used oil , and motor vehicle parts ; and 7 ) Any Recyclable Materials ; 8 ) Materials that are not combustible (except as allowed under A. 4 , above) . 43 EXHIBIT 3 -A PRICE OF LANDFILL GAS Supply ' Landfill Gas provided from Indian River County Landfill $ 0 . 70/MMBTU Company 44 EXHIBIT 3 -B LANDFILL GAS SPECIFICATIONS ESTIMATED GAS GENERATION AND COLLECTION SOLID WASTE DISPOSAL DISTRICT INDIAN RIVER COUNTY LANDFILL VERO BEACH, FLORIDA Gas Generation Gas Generation Collection Collection for Segments 1 , for Segment 3 Efficiency of Efficiency of Total Gas 2, and Infill Expansion Segment 1 ,2 , Segment 3 Recovery Infill for Given for Given Year Year k=0 .089 k=0 .08 , Year Lo=73 2000 1120 0 2001 1177 0 2002 1221 0 2003 1275 0 2004 1318 15% 198 2005 1363 15 % 204 2006 1503 20 % 301 2007 1542 40 % 617 2008 1587 40 % 635 2009 1640 40 % 656 2010 1696 50 % 848 2011 1753 50 % 0 % 877 2012 1810 0 50% 0 % 905 2013 1670 264 50 % 0 % 835 2014 1542 514 75 % 0 % 1157 2015 1423 749 75 % 0 % 1068 2016 1314 972 85 % 0 % 1117 2017 1213 1182 85% 40 % 1504 2018 1120 1381 85 % 40% 1504 2019 1034 1569 85 % 40 % 1506 2020 954 1746 85 % 40% 1510 2021 881 1915 85 % 50% 1706 2022 813 2076 85% 50% 1729 2023 751 2228 85 % 50% 1752 2024 693 2374 85% 50 % 1776 2025 640 2514 85% 50% 1801 2026 590 2648 85 % 55 % 1958 2027 545 2777 85 % 55% 1991 2028 503 2901 85% 55 % 2023 2029 464 3020 85% 60 % 2207 2030 429 3136 85 % 60% 2246 2031 396 3, 248 85 % 60% 2 , 286 2032 365 31358 85 % 60% 23325 2033 337 3 464 85 % 60% 21365 2034 311 33568 85% 60 % 21405 2035 287 3 669 85% 60 % 21446 2036 265 3 692 85% 60 % 21441 2037 245 30718 85% 60 % 2, 439 2038 226 3$ 747 85% 60 % 21440 2039 209 3 778 85 % 60 % 21444 2040 193 3 812 85% 60% 21451 Notes : 1 . Incremental increases in gas collection efficiency are based on assumption that the landfill will close areas of the landfill in stages after reaching final grades. 45 Estimated Gas Generation Rates for Existing and Lateral Expansion Landfills 4500 4000 Existing Landfill ( k= 0. 08, Lo = 100) � - � 5egment 3 Expansion ( k = 0 .08, Lo =73 ) 3500 Combined CurveOno U 3000 r 9 2500 `orA 2000 i rb owl n w 0D 1500 J '� 1000 500 ` z i ` 0 W ri ST n O M l0 0) N Ln 00 r- n O M w M N Lfl W C-I � r� O M w M N Ln W V r� M O O O r-� r� N N N N M M M q* ,qr %;t M M In M �O l0 k n r r` m O O O O O O O O O O O O O O O O O O O O O O O O O O Year EXHIBIT 3 -C LANDFILL GAS INTERCONNECT AGREEMENT (The Landfill Gas Interconnect Agreement will be attached hereto when it approved and executed by the Parties ) 47