Loading...
HomeMy WebLinkAbout2012-012B C;? �7 REIMBURSEMENT AGREEMENT THIS AGREEMENT is entered into as of the 24thday of January , 2012 , by and between Indian River County, a political subdivision of the State of Florida ("County") , and INEOS New Planet BioEnergy, LLC , a Delaware limited liability company ("INEOS ") . WHEREAS , INEOS intends to construct and operate a facility in Indian River County which will produce a bioethanol energy product and renewable power (" Facility") ; and WHEREAS , INEOS requires substantial electrical power from Florida Power & Light ("FPL") to construct and operate the Facility, which electrical power is not presently available at the site of the Facility; and WHEREAS , to provide such electrical power to the site of the Facility, FPL must construct significant underground electric distribution facilities , which FPL is willing to do , pursuant to the terms of, among other agreements , a "City/County Right- of-Way Agreement for Underground Installations (Non- Conversions)" between FPL and the County (FPL Agreement ') ; and WHEREAS , the County is willing to sign the FPL Agreement, and to allow construction of the underground electric distribution facilities within rights-of-way owned or controlled by the County, all as an accommodation to INEOS and FPL ; however, the County is concerned about certain liabilities placed upon the county in the FPL Agreement ; and WHEREAS , the underground electric distribution facilities to be constructed by or for FPL may serve properties other than the Facility in the future , WHEREAS , to induce the County to sign the FPL Agreement , INEOS has agreed to reimburse the County for certain liabilities which it might incur under the FPL Agreement , to the extent set forth herein , NOW, THEREFORE , in consideration of the mutual undertakings herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged , the parties agree, as follows . 1 . Recitals . The above recitals are true and correct and are incorporated herein. 2 . Definition of "Liability." For the purposes of this agreement , the term "liability" shall mean (individually and collectively) (a) any liability imposed upon the County pursuant to the FPL Agreement, and (b ) any cost or expense incurred by the County in performing any obligation placed upon it in the FPL Agreement , provided the cost or expense exceeds $ 500 in any fiscal year ( October 1 through September 30) , except Page 1 of 5 a. a liability based upon a breach by the County (other than a breach based upon the failure to pay the liability) ; b . a liability arising out of any covenants , representations or warranties of the County in Sections 2 (a)(i)-(iii) , (b) or ( c) of the FPL Agreement, unless INEOS , as the " Customer" referred to in Section 2 (c) fails or refuses to pay for the legal description ; c . a liability of a " Customer" ( as that term is defined in then FPL Agreement) that is not INEOS ; d . a liability arising out of the County ' s obligations in Section 3 of the FPL Agreement in the event that (i) the requirement that FPL relocate, remove and/or rearrange , in whole or in part , underground electric distribution facilities is not required for the health , safety and welfare of the public or in furtherance of the public interest . The County will endeavor in good faith to give INEOS prior notice and an opportunity to comment before requiring FPL to relocate , remove and/or rearrange underground electric distribution facilities ; however failure to give such notice shall not relieve INEOS of its obligations hereunder; e . a liability incurred by the County or FPL to acquire additional right of way (relative to the legal limits of the "ROW" (as defined in the FPL Agreement) as of the date of this Agreement) , or any other rights of way within Indian River County; f, a liability incurred by the County or FPL to acquire and/or obtain easements for any utilities that include FPL ' s utilities ; and g. a liability arising out of the County ' s obligations in Section 4 of the FPL Agreement . 3 . Reimbursement. Except as otherwise provided herein , INEOS shall reimburse the County for any liability, as defined above . In the event that the County incurs a liability pursuant to the FPL Agreement for which INEOS is responsible pursuant to the terms of this Agreement , INEOS shall pay the liability to FPL or to the County, as applicable, within thirty (30) days of receipt of written notice and reasonably supporting documentation , unless the liability is disputed in good faith by INEOS , in which case INEOS shall promptly initiate dispute resolution proceedings , incorporated in paragraph 4 below . The County and INEOS shall cooperate to resolve any good faith dispute relating to a liability. Page 2 of 5 4 . Incorporated Provisions . INEOS and the County ( acting through its dependent special district , the Indian River County Solid Waste Disposal District) have previously entered into that certain Feedstock Supply Agreement , dated as of July 15 , 2011 . The provisions of Article VIII (General Terms) of the Feedstock Supply Agreement are incorporated into this agreement, and shall apply with equal force to the matters set forth herein , with the following exceptions : a . References in Article VIII to the "District" shall mean the County; b . In Section 8 . 3 (F) , subpart (a) shall include the phrase "with respect to the subject matter in this Reimbursement Agreement" immediately following the phrase "between the Parties" and the last sentence of Section 8 . 3 (F ) shall not be incorporated as part of the Reimbursement Agreement ; and c . Section 8 . 3 (U) shall not be incorporated as part of the Reimbursement Agreement . 5 . County Required Payment By Third Parties/Cost Sharing Among Utilities . Notwithstanding anything to the contrary in this Agreement, (i) in the event the underground electric distribution facilities are required to be relocated , removed and/or rearranged as a result of the development and/or redevelopment of a specific parcel or parcels of property not owned or being developed and/or redeveloped by INEOS and (ii) the County includes as part of its approval of the project that a third party, including without limitation the owner and/or developer, pay for the cost of the relocation , removal and/or rearrangement of the underground electric distribution facilities or otherwise imposes the cost of relocation , removal and/or rearrangement on such third party , the County shall not be entitled to any reimbursement from INEOS even in the event the County has liability to FPL under the FPL Agreement; provided , however, that nothing herein shall be interpreted as imposing a duty on the County to require that the third party pay for the cost of the relocation , removal and/or rearrangement ; and , provided further, that this provision shall apply only if the county actually receives payment from the Third Party . Also notwithstanding anything to the contrary in this Agreement, ( a) in the event that the County incurs a liability pursuant to the FPL Agreement for which INEOS would be responsible pursuant to the terms of this Agreement, (b) utilities in addition to the underground electric distribution utilities are required to be relocated , removed and/or rearranged (for example, without limitation, gas , sewer and/or water utilities) and (c) a portion of costs incurred to relocate , remove and/or rearrange underground utilities benefit other utilities , INEOS ' obligation to reimburse the County for a liability under the FPL Agreement will be limited to the proportionate share of the costs that attributable to relocating, removing and/or rearranging the underground electric distribution facilities . Page 3 of 5 6 . Upsizing of Underground Distribution Facilities . In the event of any relocation , removal and/or rearrangement of the underground electric distribution facilities , the size of the underground electric distribution facilities are increased (including without limitation the circumference of borings , conduit , transformers , cabinets and other appurtenant facilities) , or any part thereof, the liability incurred by the County for which INEOS may be responsible under this Agreement shall not include the incremental increase in costs as a result of such increases in size , unless such increase in size is requested by INEOS or is the result of conformance with a new FPL technical standard for the underground electric distribution facilities (applicable to all underground facilities) at the time of the relocation, removal and/or rearrangement . Such conformance does not include an expansion of the underground distribution facilities initiated by FPL to serve additional FPL customers or unrelated to a new FPL technical standard for underground facilities applicable to all underground facilities . 7 . Effective Date. This Agreement shall be effective as of the date that it is fully executed by all parties . 8 . Term . This Agreement shall remain in effect for as long as the FPL Agreement remains in effect . In the event that the FPL Agreement terminates , this Agreement shall automatically terminate without any action required by either party to this Agreement . In the event any part of the "ROW" (as that term is defined in the FPL Agreement) is transferred to the state of Florida and/or the United States of America, or any of their respective agencies or departments , this Agreement shall no longer apply to the part transferred ( and any liability related to said part) without any action required by either party to this Agreement as long as the state of Florida and/or the United States of America takes the ROW subject to the terms and conditions of the FPL Agreement . IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above . INEOS New Planet BioEnergy, LLC, a Delaware Limited Liability Company By: LV l , Print Name : J luidw VU Its President � a�nnonnn „ , Attest : Jeffrey K . Barton , INDIAN RIVER COUNTY BOARD , _, t66lDNFgs Clerk of Ci uit Court COUNTY COMMISSIONERS fir • ,. " , Jx B By: S Deputy Clerk Gary C . eeler, Chairman ;- Page S '' to sets NER C� •," ��'ANNA1 0NM NN r Date Approved by BCC : January 24 , 2012 A Ir# Approved -as to Form and Leg�1 Sufficiency : P By : County Attorney County Administrator Alan S . Polac ich, r. , C y y Page 5 of 5