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HomeMy WebLinkAbout2012-050 FIRST AMENDMENT TO aD LANDFILL GAS INTERCONNECT AGREEMENT BETWEEN INEOS NEW PLANET BIOENERGY , LLC AND INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT This First Amendment To Landfill Gas Interconnect Agreement (" First Amendment") dated December 13 , 2011 ("Landfill Gas Interconnect Agreement") , by and between Indian River County Solid Waste Disposal District , a dependent special district of Indian River County , Florida ("District" ) and INEOS New Planet BioEnergy LLC (" Company") , is made, entered into and effective as of this March 13 , 2012 (the "First Amendment Effective Date") . (Capitalized terms that are used but not defined in this First Amendment shall have the meaning set forth in the Parties ' Feedstock Agreement or Landfill Gas Interconnect Agreement, which are described below) . WHEREAS , Company and District entered into a Feedstock Supply Agreement (" FS Agreement") that requires the District to sell and the Company to purchase the Landfill Gas ("LFG") collected by the District' s LFG Assets ; and WHEREAS , Company and District subsequently entered into a Landfill Gas Interconnect Agreement, which is an exhibit to and a part of the FS Agreement; and WHEREAS , Company and District wish to amend the Landfill Gas Interconnect Agreement ; and NOW THEREFORE , the Parties , in consideration of these premises and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, agree as follows : Amendment L Parties agree to delete section 7 . 3 (b) of the Landfill Gas Interconnect Agreement in its entirety and replace it with the following : " (b) It is the desire and intent of the Parties that the Company shall actively attempt to market and sell all of the District Project Credits and Company Project Credits on behalf of the Parties . It is anticipated that the Company shall use the services of a third party (the "Marketer") to market and sell the Project Credits . Any agreement signed by the Company and Marketer shall , to the greatest extent possible , treat the Company and District equally and fairly . To the extent that any acts or omissions of the Company or the District , or both, result in liability to the Marketer, the Company and the District shall each be responsible for that portion of the liability caused by its own acts or omissions . If the liability does not arise out of the acts or omissions of either Party , then the liability shall be shared on a pro rata basis , apportioned according to the anticipated profits as agreed upon by the Parties in this Agreement . " 1 LFG Interconnect Agrmnt - I st Amdmt (2) I Parties agree to delete section 12 . 4 in its entirety and replace it with the following : " The remedies provided in this Agreement shall supplement the remedies available to the Parties under the FS Agreement, and the remedies available at law and in equity ; however, neither Party shall be entitled to recover consequential damages , punitive damages , delay damages , or lost profits of any kind . This provision shall not operate to limit the liability of either Party to the other, for liability which may arise out of the agreement between the Company and the Marketer, pursuant to section 7 . 3 (b) above . " 3 . Parties agree to add a new section 7 . 4 , as follows : " 7 . 4 . District makes the following additional representations to Company in connection with Company ' s efforts to market and sell the District ' s Project Credits . For the purposes of these representations (a) the term " Credits" shall have the same meaning as the term "ERB " in the Company ' s Agreement for the Development, Verification, Registration, and Marketing of Greenhouse Gas Emission Reduction Benefits with Blue Source LLC , dated February 24 , 2012 ("Blue Source Agreement") , (b) the term "Project" shall have the meaning set forth in the Blue Source Agreement, and (c ) the term "ERB Regime" shall mean the Climate Action Reserve , or any other registry mutually agreed to by the Parties : a) District hereby grants to Company the exclusive right to market all District Project Credits, b) District hereby transfers to Company the title to any District Project Credits for the sole purpose of marketing and selling the credits pursuant to the Company ' s agreement with the Marketer . Upon expiration of the Company ' s agreement with the Marketer, title to any District Project Credits which have not been sold to a third party shall automatically , and without any further action by the Parties , revert to the District, C) The District has good and marketable title to all District Project Credits , and such credits are free and clear of all encumbrances , d) The District has not claimed and will not claim any of the District Project Credits as part of its own carbon inventory , carbon footprint, or other carbon statement or declaration, and e) The Project operates in material compliance with all requirements of the ERB Regime and applicable law, although, for the purposes of marketing and selling the District Project Credits , the District does not make and affirmatively disclaims any guarantees , representations , or 2 LFC Interconnect Agrmnt - I st Amdmt (2) warranties concerning the quality or quantity of the landfill gas 4 , Parties agree that, except as amended by this First Amendment, the terms and provisions of the Landfill Gas Interconnect Agreement shall remain in full force and effect. IN WITNESS WHEREOF, this First Amendment is executed by the Parties and shall be effective as of the First Amendment Effective Date . INDIAN RIVER COUNTY SOLID WASTE ATTEST - Jeffrey Barton, DISPOSAL DISTRICT ("District") rwPuggln Clerk ourts •GCJOMISS14 By By: /� ' o ` eputy Cler Gary C. eeler, Chairman a March 12 = **2012. Q ` Approved by HCC : o4Ar 00 00 And legal it° ``� oQ+ Approved : Approved as to form eg ufficie ` ryR0 9 gab °r W eph A. Saird, County Administrator ( an SI. Polacltiwich, Sr., County Attorney Signed , sealed and delivered in the INEOS NEW PLANET BIOENERGY, LLC presence of: ("Company") B � IV Print name: y ' Prin7name* V L Li �ll III 111 11 liiiiiiiiiiii MINIMUM Print name : Prin � � r, 3 LFG Interconnect Agrmnt a I st Amdmt (2)