HomeMy WebLinkAbout2019-109C.1Final Version
LANDFILL GAS AGREEMENT
This Landfill Gas Agreement ("Agreement") is made and entered into on this 16th day
of July , 2019 ("Effective Date"), by and between Indian River Eco District, LLC
("Company"), a Texas limited liability company, and Indian River County Solid Waste Disposal
District ("District"), a special dependent district of Indian River County, Florida.
WHEREAS, Company desires to purchase the Landfill Gas ("LFG") collected by the
District's LFG Assets for the purpose of producing electricity and/or Renewable Natural Gas
(RNG); and
WHEREAS, the District has determined that selling LFG to Company pursuant to this
Agreement benefits the health, safety, and welfare of the citizens of Indian River County and,
further, this Agreement serves important and proper public purposes.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
obligations, benefits and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the District and
Company agree that they shall be bound by and shall comply with the following provisions of this
Agreement:
ARTICLE 1 - DEFINITIONS
1.1 When the following words and phrases are used in this Agreement, they shall be
defined and construed as follows:
Acceptable Landfill Gas (LFG) — means Landfill Gas wherein the sulfur content of the
LFG is in accordance with ASTM -D5504 is equal to or less than a quarterly average of 2,000
ppmv and that the minimum methane content is greater than or equal to an average of 40% by
volume, as determined each day.
BTU — means a British Thermal Unit, which is the amount of heat required to raise the
temperature of one avoirdupois pound of pure water from 58.5 degrees Fahrenheit to 59.5 degrees
Fahrenheit at standard temperature and standard pressure.
Business Day — means every day other than a Saturday, Sunday or a day on which banks
are required or authorized by law or executive order to close in the State of Florida.
Change in Law — means the enactment, adoption, promulgation, modification or repeal of
any laws, codes, ordinances, statutes, rules, regulations, orders, decrees after the Effective Date.
Company Credits — means the value of any Environmental Attributes that the Company
earns as a result of its usage or destruction of LFG delivered to the Company.
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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.
Condensate — are liquids which are removed from a gas control system at a landfill and
which are produced by the condensation of Landfill Gas being conveyed by that system.
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 Landfill Gas
Commencement Date and end on the following September 30 and (b) the last Contract Year shall
end when this Agreement expires or is terminated.
County — means the geographical area contained within Indian River County, Florida.
County Government — means the government of Indian River County, acting through the
Board of County Commissioners.
Credits — means District Credits and/or Company Credits, as applicable.
Day — means calendar day unless otherwise noted in the Agreement.
Delivery Capacity — means the amount of Acceptable LFG that the District is able to
deliver to the Delivery Point, given the physical and operational constraints of providing LFG from
the Landfill.
Delivery Point — means the location on the District's property where the District LFG
Assets and the Company LFG Assets are interconnected, thus enabling the District to deliver LFG
to the Company. The Delivery Point shall be clearly shown on the Company's Facility design
drawings.
District Credits — has the meaning set forth in Section 8.2(A).
District Credit Revenue — has the meaning set forth in Section 8.2(C).
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
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.
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Effective Date — means the date on which the last of the Parties has executed this
Agreement.
Environmental Attributes — means any and all credits, benefits, emissions reductions,
offsets, and allowances, howsoever entitled, attributable to the production, delivery and destruction
of LFG. Environmental Attributes include but are not limited to: (1) any avoided emissions of
pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon
monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane
(CH4) and other greenhouse gases; (3) displacement or avoidance of any amount of conventional
gas or fossil energy generation resources; and (4) the reporting rights to these avoided emissions.
Event of Default — has the meaning set forth in Section 13.2.
Facility — means the physical assets connected to the Company LFG Assets at the Facility
Location used to clean, condense and otherwise process Landfill Gas so that it can be used to
generate electricity, injected into the natural gas pipeline, or otherwise used in accordance with
applicable laws.
Facility Location — means the Company's real property located at 925 74th SW Avenue in
Vero Beach, Florida, where the Facility is located.
Facility Capacity — means the amount of Acceptable LFG that the Company is able to
accept at the Delivery Point, given the physical and operational constraints of installed electric
generators which shall be limited to 6 megawatts or in the case of an RNG Facility up to 1,600
SCFM of raw LFG measured at the Delivery Point.
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; (b) the Force Majeure is not
the result of the fault or negligence of the Party claiming Force Majeure and (c) 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. 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, terrorism, wars, blockades,
explosions, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, tropical storms, floods, tornadoes, restraints
of governments and people, and civil disturbances;
(2) with respect to the District, any Change in Law (other than a
Change in Law of the County Government) that imposes a constraint on the
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District and thus reduces the ability of or prevents the District from
providing LFG under this Agreement, and/or or prevents the Facility from
accepting such LFG;
(3) with respect to the Company, any Change in Law;
(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;
(5) 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 (defined by industry standards at
the time), such servitude, rights of way, grants, permits or licenses; and
(6) 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 (other
than the County Government with respect to the District claiming Force Majeure)
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
(defined by industry standards at the time), such materials and supplies, permits
and permissions.
Force Majeure shall not include the ability of the District to sell LFG at a high price
or the ability of Company to acquire LFG at a lower price or the reduction of the
market value of the LFG.
Interconnect Site — means that portion of the District's property at the Landfill on which
the Company LFG Assets are installed.
Isolation Valves — means the valves that will be used to isolate the District's LFG flare
from the District LFG Assets upstream of the Delivery Point—i.e., the Isolation Valves direct LFG
from the Landfill to the flare or, in the alternative, to the Delivery Point.
Landfill — means the District's Class I landfill located at 1325 74th Avenue SW in Vero
Beach, Florida with its currently permitted waste disposal capacity of approximately 13.6 million
cubic yards.
Landfill Gas ("LFG ") — means gas generated in the Landfill.
Landfill Gas Commencement Date ("LFG Commencement Date ") — means the date
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designated by both Parties pursuant to Section 3.11 on which the Company commences
commercial operation of the Facility.
Leachate — means water and other liquids that have percolated through the Landfill and
leached out some of the Landfill constituents.
LFG Assets — means the Company LFG Assets or the District LFG Assets, as applicable.
LFG Baseline — has the meaning set forth in Section 8.1(A) as the same may be adjusted
pursuant to Sections 10.3 and 10.4.
LFG Price — means the price paid by Company to the District for the LFG delivered to the
Delivery Point. The LFG Price is set forth in Article 8.1.
Marketer — has the meaning set forth in Section 8.2(B).
Metering — means the meters, instruments and/or processes used to measure the quantity
and quality of the LFG delivered by District to Company.
MMBTU— means one million BTUs.
Monthly LFG Statement — means the statement prepared by the Company on a monthly
basis and submitted to the District showing the total amount of Landfill Gas received by the
Company, as measured at the Delivery Point, and the dollar amount owed to the District for its
LFG as set forth in Section 9.1.
Party — means either the Company or the District. The Company and the District are
collectively referred to herein as the "Parties".
Permit - means any local, state, or federal permit, license, franchise, registration,
certification, authorization or other governmental approval required for the performance of a
Party's obligations under this Agreement.
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.
Quarterly LFG Statement— means the quarterly statement described in Section 9.1(B).
Quarterly True -Up Payment— has the meaning set forth in Section 9.1(B)(4).
RNG Facility — means a facility that converts LFG to renewable natural gas that can be
injected into the natural gas pipeline and/or used as a vehicle fuel in accordance with the
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Renewable Fuel Standard Program under the Energy Policy Act of 2005 and the Energy
Independence and Security Act of 2007 and its implementing regulations.
SCFM— means standard cubic feet per minute ("SCFM").
1.2 As used in this Agreement, (A) the masculine gender shall include the feminine and
neuter and the singular number shall include the plural, and vice versa, (B) unless expressly stated
otherwise, references to a governmental authority includes any government authority succeeding
such authorities functions and capacities, (C) "days" shall mean calendar days, unless the term
"Business Days" is used (if the time for performing an obligation under this Agreement expires on
a day that is not a Business Day, the time shall be extended until that time on the next Business
Day), (D) where a word or phrase is specifically defined, other grammatical forms of such word
or phrase have corresponding meanings; the words "herein," "hereunder," "hereof' and this
"Agreement" refer to this Agreement, taken as a whole, and not to any particular provision of this
Agreement; (E) "including" means "including, for example and without limitation," and other
forms of the verb "to include" are to be interpreted similarly, and (F) all references to a given
agreement, instrument or other document shall be a reference to that agreement, instrument or
other document as modified, amended, supplemented and restated through the date as of which
such reference is made.
ARTICLE 2 - TERM AND RENEWAL
2.1 This Agreement shall take effect on the Effective Date and continue for a period of
twenty (20) years (the "Initial Term") following the LFG Commencement Date, unless terminated
earlier in the manner provided herein. The LFG Commencement Date shall occur within 1 year of
Effective Date, otherwise Section 13.1 shall apply.
2.2 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.
ARTICLE 3 - THE PARTIES' LFG FACILITIES
3.1 District Responsibilities and Obligations.
A. District to Supply LFG to Company. Subject to the requirements below,
the District shall deliver to the Company all the LFG collected from the Landfill up to
the Facility Capacity, except as otherwise provided herein.
B. District shall review all permit applications prepared by Company before
the Company submits them to permitting authorities, subject to Sections 3.5 and 3.6.
C. District shall operate and maintain its assets in compliance with laws and
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permits.
D. District shall cooperate with Company as the Company seeks to obtain
County Government permits.
E. District is responsible for the disposal of Condensate generated by the
District LFG Assets up to the Delivery Point.
F. Notwithstanding the foregoing, the District shall control and be responsible
for the operation and maintenance of the District LFG Assets located between the
Landfill and the Delivery Point.
G. Notwithstanding anything in this Agreement to the contrary, it is understood
and agreed by the Company that the District has no obligation to accept solid waste or
to implement any expansions of the Landfill.
H. The District is responsible to manage leachate in the LFG collectors, as
necessary, to comply with all permits related to the landfill and the LFG collection
system.
I. The District is responsible to maintain the pollution destruction devices
(i.e., the District's flare or any replacement thereof) as necessary to maintain its permits
during periods of time that the Facility is not accepting all of the LFG produced by the
Landfill.
3.2 Company Responsibilities and Obligations.
A. Subject to the other conditions contained herein, Company shall accept and
use up to 1,600 SCFM of Acceptable LFG that is produced by the Landfill and
delivered to the Delivery Point subject to the terms and conditions hereof.
B. 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 needs to be added to the District's existing
LFG collection and flare system to (i) enable Company to divert LFG from the
District's flare and transport such gas via pipeline to the Facility, (ii) enable reliable
destruction of excess LFG simultaneous with the Company's beneficial use of some of
the LFG and (iii) enable the reliable delivery of the LFG 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 LFG system equipment located on the District's property
for the purpose of allowing Company to perform its obligations under this Agreement.
C. On or before the LFG Commencement Date, Company shall install all of
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the necessary pipelines, improvements, and equipment needed to transport, meter and
use the LFG in the Facility. On or before the LFG Commencement Date, Company
shall provide written notification to District that all such pipelines, improvements, and
equipment are fully operational.
D. Company shall install, calibrate, and maintain appropriate Meters to
measure the quantity and quality of the LFG at the Delivery Point in accordance with
Sections 6.3 and 6.8.
E. Company shall provide the necessary controls and automation to cause LFG
to be diverted to the District's flare if the Facility is not taking delivery of LFG from
the Landfill and to allow simultaneous operation of the flare and the Facility, if
necessary.
F. The District shall not be obligated to pay for any LFG expansion
piping/wells.
G. To comply with its permit requirements the District may, from time -time,
have to expand its gas collection system. If that happens the District will notify the
Company because these expansions may impact LFG delivery to the Company.
H. Company shall pay the rates set forth in Article 8 for all of the LFG it
receives from the District.
I. Company is responsible for the disposal of Condensate generated by the
Company LFG Assets. On a quarterly basis, the Company shall sample and analyze the
condensate from its equipment to verify that it is non -hazardous. If it is determined to
be hazardous, then the Company shall be responsible for the proper disposal of the
hazardous Condensate. To the extent the Condensate is determined to be hazardous
because of the Company processing it (i.e.: compressing the LFG or concentrating the
condensate), the Company will not be eligible for reimbursement from the District for
the Company costs of disposing such hazardous Condensate. To the extent the
Condensate is determined to be hazardous because of activities at the Landfill, the
Company will be entitled to reimbursement from the District for the Company costs of
disposing such hazardous Condensate.
J. Company shall submit all permit applications to the District for review by
the District or its designee, subject to Sections 3.5 and 3.6.
K. Company shall provide to the District the qualifications and proof of annual
safety training of employees or contractors that are working on District's property.
L. 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 Landfill Gas processing equipment is not operating, or if the District is
not providing Acceptable LFG. Company is not obligated to pay the District for the
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Landfill Gas that is diverted to the District's flare for these reasons.
M. To the extent that the District reliably produces Acceptable LFG in excess
of the Facility Capacity installed at that time, the Parties shall meet and confer, acting
reasonably and in good faith, to assess whether the Facility Capacity can or should be
increased. If the Company agrees to expand the Facility Capacity, then the Company's
right to the LFG shall be increased to such new Facility Capacity. If the Company does
not agree to expand the Facility Capacity, or the Company remains silent on the topic
for more than 30 days, then the District may use such excess LFG in any way that the
District deems appropriate that does not interfere with Company's rights hereunder.
N. The construction and operation of the Company's Facility and the Company
LFG Assets shall not unreasonably interfere with the operational requirements of the
District with respect to the Landfill or the existing LFG collection system. It is the
responsibility of the Company to (i) schedule and perform construction and
maintenance activities of the Company's facilities in a manner which will not
unreasonably interfere with the ability of the District to operate the Landfill or the
existing LFG collection system, (ii) control odors as required by any Permits; (iii) not
create other nuisance conditions prohibited by law; and (iv) meet all applicable law to
which it is subject. The District will not be required by the Company to interrupt
operation of the District's flare system for more than 120 continuous hours unless the
Facility is operational and accepting delivery of LFG. The Company will notify the
District in a timely manner should the Facility be inoperable so the District can ensure
that its flare or other pollution control equipment is operational.
3.3 Each Party shall pay and be solely responsible for all of the costs associated with
the design, permitting, construction, installation, operation, maintenance, repair, and replacement
of their respective LFG Assets, except as set forth in Section 3.2(B), unless mutually agreed upon.
3.4 The District and Company, respectively, shall each designate a Person to serve as
that Party's authorized agent under this Agreement for the purpose of receiving correspondence
and documents regarding the design and construction of the LFG Assets and any other assets
provided by Company on District property. Upon request, the District shall provide to the
Company the technical information in the District's possession necessary for the Company to
develop the conceptual and final design of the Facility and the LFG Assets. Company shall
determine the basis and design requirements necessary for the Facility and the LFG Assets to meet
all industry standard engineering and permit requirements applicable to similar facilities and
interconnects located in Florida. Company shall provide the District with plans, drawings,
specifications, schedules, critical path analyses and other documents, at each stage of the
development of the Company's project, which are reasonably necessary to enable the District to
ensure that the design, construction, and engineering of Company LFG Assets are compatible with
the District LFG Assets and the interconnect at the Delivery Point, and in accordance with
generally accepted rules, regulations, engineering and construction practices.
3.5 All documents submitted for the District's review and approval shall be acted upon
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and returned to Company within a reasonable time, as set forth in Section 3.6, with the District's
approval or any comments regarding any further review or modification by Company to conform
to the laws of the State of Florida, County, technical specifications, requirements, and exhibits of
this Agreement. If additional modifications are needed, unless disputed, Company shall proceed
with the requisite modifications requested by the District. If requested, Company shall re -submit
the same to the District for review and approval. The District shall advise Company in writing
within fifteen (15) Business Days of receipt of such re -submitted documents as to their
acceptability and approval. The various comments and approvals made by the District on the
plans, specifications, drawings, schedules and other matters shall not relieve Company from any
of its obligations under this Agreement. The District's acceptance and approval of the plans and
other matters shall not be unreasonably withheld.
3.6 Unless otherwise specified, reasonable time for review and approval by the District
shall mean fifteen (15) Business Days. If the District fails to return any design documents to
Company within fifteen (15) Business Days after the documents are received by the District, then
the District shall be deemed to have waived any comments or objections thereto; provided,
however, that if within the fifteen (15) Business Days, the District notifies Company in writing
that additional review time is necessary, the District shall have an additional five (5) Business
Days to complete its review.
3.7 With regard to either Party's LFG Assets and other improvements that will be
constructed or installed on the District's property at the Landfill by the Company, Company's
proposed plans, specifications, contracts, and other documents shall be designed to provide safe,
reliable, and efficient operations consistent with industry standards. All such LFG Assets will
have warranties provided by the applicable supplier or contractor consistent with industry
standards. The Company's contracts with third parties shall contain appropriate provisions to
ensure that Company is able to comply with its obligations under this Agreement.
3.8 Prior to the LFG Commencement Date, Company and the District shall promptly
and diligently seek to obtain all Permits necessary for them to satisfy their respective obligations
under this Agreement. The District shall pay all costs and fees for Permits required for activities
at the Landfill and upstream of the Delivery Point, except as provided in Section 3.12 concerning
the Isolation Valves and flare modifications necessary for simultaneous operation with the
Company. Company shall pay all costs and fees for Permits required for activities at its Facility
and downstream of the Delivery Point, and for the Isolation Valves as provided in Section 3.12,
below. Company and the District shall cooperate at all times and shall keep each other informed
about their progress in obtaining the necessary Permits. A copy of all final approved Permits will
be provided by the Party obtaining the Permit to the other respective Party.
3.9 After the necessary Permits are obtained, the Company shall expeditiously
commence construction of the Company LFG Assets and the Isolation Valves as provided in
Section 3.2 above, as well as any other improvements necessary for the Company to receive and
use the District's LFG at the Facility. The Company shall diligently and continuously construct
all of these improvements prior to the LFG Commencement Date.
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3.10 The District shall be allowed to monitor all operations and activities associated with
the permitting, construction, startup and commissioning of the LFG Assets and any other
improvements located on the District's property. The District shall be allowed to monitor and
confirm the compatibility of the District LFG Assets with the Company LFG Assets. The District
shall rebalance the District LFG Assets (e.g., the LFG recovery wells and collection system), as
the District deems necessary. These activities will be designed to synchronize the operation of the
District LFG Assets with the Company LFG Assets.
3.11 Company shall give the District seven (7) days' notice in writing when the
interconnect, and all the LFG Assets for which the Company is responsible, are ready to commence
routine commercial operations, and Company, in mutual agreement with the District, shall identify
the date that Company wishes to designate as the LFG Commencement Date. The proposed LFG
Commencement Date shall be designated as soon as practicable after the notice from Company.
The District shall, as soon as it is ready, notify the Company that it is ready to commence routine
commercial operations on an agreed LFG Commencement Date. Prior to the LFG Commencement
Date, the District shall provide LFG to Company at the rate identified in Section 8.1 and 8.3 to
enable Company to startup and test the Parties' LFG Assets.
3.12 Company shall be solely responsible for the Company LFG Assets and any other
improvements necessary for Company to receive and use LFG in its Facility, and for paying all of
the capital costs for the Company LFG Assets, including but not limited to the interconnect, flare
modifications, and Isolation Valves. Notwithstanding anything to the contrary in this Agreement,
any appurtenances including the Isolation Valves installed prior to the Delivery Point shall become
part of the District's LFG assets. The Isolation Valves shall be operated by the Company's
distributive control system under normal conditions, but the Isolation Valves may be operated by
the District if necessary to respond to an emergency, malfunction, Force Majeure, or similar event.
Exhibit "D" is a LFG process flow schematic that depicts the location of the Isolation Valves and
the flow of LFG through them.
3.13 Within sixty (60) days of the LFG Commencement Date, the Company shall
provide the following: (a) with regard to any LFG Assets located on the District's property, one
complete set of final record "as built" drawings (construction and electrical); (b) the final
specifications for the Isolation Valves, methane analyzer, and LFG flow meter; (c) an operation
and maintenance ("0 & M") manual for the Isolation Valves, methane analyzer, and LFG flow
meter, including any 0 & M manuals provided by the manufacturers; (d) any lists provided by the
manufacturers for recommended spare parts for the Isolation Valves, methane analyzer, and LFG
flow meter; (e) the licenses or approvals, if any, needed for the District to use the Isolation Valves,
methane analyzer, and LFG flow meter; and (f) a plan of operating procedures for the coordinated
operation of the Interconnect. The "as built" drawings shall be provided to the District in two (2)
sets of full-size paper drawings and in an electronic format (i.e., Computer Assisted Design
Drawing or "CADD" files).
3.14 There shall be no liens or other encumbrances (collectively, "Liens") placed on the
District's land as a result of the Company's activities. If a Lien is placed on the District's land by
any of Company's suppliers or contractors, Company shall immediately take whatever steps are
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necessary to ensure that the Lien is released promptly. If Company fails to secure the timely
release of such Lien, the District may take any and all steps to secure the release of the Lien and
the District's costs and expenses will be reimbursed by the Company within 30 days of notice.
There shall be no Liens placed on the Company's real property, personal property or fixtures as a
result of the District's activities. If a Lien is placed on the Company's property as a result of the
District's acts or omissions, the District shall immediately take whatever steps are necessary to
ensure that the Lien is released promptly. If District fails to secure the timely release of such Lien,
the Company may take any and all steps to secure the release of the Lien and then the Company's
costs and expenses will be reimbursed by the District within 30 days of notice.
ARTICLE 4 - LFG GENERAL PROVISIONS
4.1 District shall have the exclusive right to determine, in its sole discretion, how the
District LFG Assets will be constructed and operated as necessary to perform District's obligations
hereunder. District's primary goals shall be to operate the Landfill for waste disposal and ensure
the District's compliance with the permits and laws governing the District's operations at the
Landfill.
4.2 District does not make and affirmatively disclaims any guarantees, representations,
or warranties concerning the quality or quantity of the LFG that will be generated or collected by
the Landfill.
4.3 Company reserves its right to reduce or terminate the flow of the LFG to the
Facility, and thus divert part or all of the LFG to the District's flare, if the Company LFG Assets,
Facility, or any portion thereof is not operating, or if the District is not providing Acceptable LFG.
Company is not obligated to pay the District for the LFG that is diverted to the District's flare for
these reasons.
4.4 District reserves its right to reduce or terminate the flow of the LFG to the Facility,
and thus divert part or all of the LFG to the District's flare, to the extent that the Company LFG
Assets, Facility, or any portion thereof is not operating at a capacity sufficient to accept higher
deliveries of LFG.
4.5 Except with respect to events of Force Majeure or maintenance, Company agrees
that failure by Company to take receipt of 100% of the Acceptable LFG, up to 1,600 SCFM, that
is produced by the Landfill within the month, as set forth in Section 3.2(A), will not release
Company from its obligation to pay District as if Company had taken receipt of 100% of the
Acceptable LFG, up to 1,600 SCFM, in full compliance with the terms set forth in this Agreement.
District shall, therefore, have the right to invoice Company, and Company hereby agrees to timely
pay District in accordance with this Agreement.
4.6 The Company shall prepare and maintain records concerning the operation of the
system used to provide LFG to the Facility that identify: the amount of LFG provided to the
Facility on an hourly basis, the methane content of the LFG provided to the Facility on an hourly
basis, the dates and times when the Company diverts LFG to the District's flare; and the dates and
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times when the Company stops diverting LFG to the District's flare.
ARTICLE 5 - ACCESS AND EASEMENT
Subject to the conditions contained in this Agreement, the District shall grant to Company
the right to access, occupy and use the Interconnect Site and a LFG pipeline easement for the
purpose of satisfying the Company's obligations under this Agreement, including the right to
construct, install, own, maintain and operate the Company LFG Assets on the Interconnect Site
and the LFG pipeline easement. District shall grant to Company a non-exclusive easement over,
under and across certain property that is more specifically described in Exhibit "B" to this
Agreement, for the purpose of accessing, constructing, installing, owning, maintaining and
operating the equipment and facilities necessary to connect the District LFG Assets and the
Company LFG Assets in the manner provided in this Agreement. District agrees to execute written
easement grants to Company in substantially the form attached hereto as Exhibit "B-1" ("Grant of
Non -Exclusive Easement for Landfill Gas Equipment and Pipeline") and Exhibit "B-2" ("Grant of
Non -Exclusive Easement for Ingress and Egress"). Company shall pay all costs associated with
the recording of any easements granted by the District.
ARTICLE 6 - LFG QUANTITY; MEASUREMENT
6.1 The Company shall accept delivery of the Acceptable LFG delivered to the
Delivery Point up to the Facility Capacity at all times throughout the term of this Agreement,
unless the Facility is not operating. The Parties recognize that Company's use of LFG at its Facility
may be curtailed or interrupted when the Facility is not operating due to the maintenance
requirements of the Facility and/or Force Majeure events. The Company will make every
reasonable effort to notify the District of any scheduled outage within 72 hours of the scheduled
outage and within 12 hours after any unscheduled outage. Except to the extent expressly set forth
herein, the Company shall have no liability to the District, except as stated in Section 4.5, to the
extent that the Company does not accept delivery of any LFG because the LFG is not Acceptable
LFG or because the Facility is not operating.
6.2 Except as otherwise set forth in this Agreement, the District shall deliver all
Acceptable LFG produced by the Landfill to the Facility. The District shall deliver Acceptable
LFG to the Delivery Point up to the Facility Capacity at all times throughout the term of this
Agreement, unless the LFG collection system is not operating. The Parties recognize that the
District delivery of LFG may be curtailed or interrupted when the LFG collection system is not
operating due to the maintenance requirements and/or Force Majeure events. The District will
make every reasonable effort to notify the Company of any scheduled outage within 72 hours of
the scheduled outage and within 12 hours after any unscheduled outage. Except to the extent
expressly set forth herein, the District shall have no liability to the Company to the extent that the
District does not deliver any LFG because the LFG is not Acceptable LFG or because the LFG
collection system is not operating.
6.3 The quantity of LFG delivered by District shall be determined by conducting
appropriate measurements with the Metering equipment. The Metering equipment shall be
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maintained by the Company and shall be calibrated on a quarterly basis or in accordance with the
manufacturer's specifications, whichever is more frequent. At its expense, District may arrange
for an independent third party to verify the accuracy of the Metering equipment used by the
Company to measure the LFG. Any independent tests shall be coordinated with the Company in
advance. Company shall act reasonably and in good faith in connection with coordinating the
independent test. The results of any calibration tests or inspections by either Party shall be
provided to the other Party, upon request. The specific test methods shall be as required by the
applicable industry standards.
6.4 At its option and expense, the Company may determine the Delivery Capacity by
conducting appropriate tests. The Delivery Capacity shall be based on the average flow of
Acceptable LFG to the Delivery Point during a seventy-two (72) hour period. The Delivery
Capacity shall reflect the amount of Acceptable LFG that the District can produce from the Landfill
and deliver to the Delivery Point while maintaining compliance with all applicable laws and
prudently operating the Landfill and the District LFG Assets. The Parties recognize and
acknowledge that the Delivery Capacity may fluctuate during the term of this Agreement. The
District shall respond as expeditiously as practicable to Company concerns and recommendations
concerning possible improvements to the Delivery Capacity. The Company shall respond as
expeditiously as practicable to District concerns and recommendations concerning possible
improvements to the Facility.
6.5 The District shall not be obligated to deliver Acceptable LFG to Company at any
specific rate. The District shall use reasonable commercial efforts to deliver Acceptable LFG at a
relatively uniform hourly rate of flow, but the District does not warrant or guarantee that it will be
able to supply Company with any minimum amount of Acceptable LFG on an hourly, daily or
other basis. The provisions of this Section 6.5 shall not permit the District to divert Acceptable
LFG from the Delivery Point unless the District determines, acting reasonably and in good faith,
that such diversion is necessary to keep the flare operating in compliance with permits or if the
Company has refused to accept LFG per Section 3.2(L).
6.6 The District shall notify Company promptly if the District anticipates that the
production of LFG will increase or decrease by more than 500 SCFM in the future. Company shall
notify the District promptly if Company anticipates that its use of LFG will increase or decrease
by more than 500 SCFM in the future.
6.7 During the term of this Agreement, the District shall not undertake any action that
would: (a) temporarily or permanently divert Acceptable LFG to any other user without first
offering said LFG to the Company per Section 3.2(L); or (b) permanently reduce the production
of LFG at the Landfill, unless such action is (1) required by an applicable law or (2) otherwise
deemed necessary and appropriate by the District for the protection of the public health, safety and
welfare. District may divert up to 225 SCFM of Acceptable LFG for use at the Landfill, if the
District determines in its sole discretion that such LFG is needed for the economically efficient
processing of Leachate. District shall provide notice to Company prior to such diversion. The
District will only divert the amount necessary for such processing. If the District, acting reasonably
and in good faith, determines to divert more than 225 SCFM for the economically efficient
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processing of Leachate, then the District shall give notice to Company prior to diversion, and
Company shall not unreasonably withhold its consent to such diversion. If the District proceeds
with the economically efficient processing of Leachate that does not require the use of all or some
of the 225 SCFM of Acceptable LFG, then the Company may request that the District release its
rights to such unused volume, and the District shall not unreasonably withhold its consent to this
request.
6.8 The Company shall be responsible for measuring and recording the characteristics
of the LFG that is delivered to Company at the Delivery Point. Unless circumstances dictate
otherwise, the Company shall measure and analyze the LFG with the Metering equipment defined
in Section 6.3. The Company shall use a flow meter to continuously measure the quantity of LFG
delivered by the District to the Delivery Point. The Company shall use a methane analyzer to
measure the methane content of the LFG continuously or as otherwise agreed in writing by the
Parties. The flow meter and the methane analyzer shall be installed at a location near the Delivery
Point, unless the Parties agree otherwise. At a minimum, the Company shall determine: (a) the
quantity of LFG, which shall be measured in SCFM; and (b) the energy content of the LFG, which
shall be measured in BTUs per SCFM. The Company may at its discretion measure or test for
other gas characteristics. The Company shall measure these factors by using the Metering
equipment and/or such other instruments as necessary. The Company shall be solely responsible
for the operation, maintenance and calibration of the meters and other equipment used to measure
or test the LFG. To ensure accurate assessment of the Acceptable LFG delivered at the delivery
point, the Company will, at a minimum, factory calibrate the flow and quality metering equipment
annually and provide copies of those calibrations to the District.
6.9 If Company or the District discovers that the Metering instruments are not properly
calibrated, they shall promptly report this information to the other Party. In such case, the
applicable Party shall have the right to request and receive an equitable adjustment of the payments
hereunder reflected on the first statement or invoice after the adjustment to the Metering
information is identified. It is the intent of the Parties that no one should benefit unjustly as a
result of an error in the calibration of the Metering equipment. Unless there are specific factual
reasons to believe otherwise, the Parties shall assume that the error in the calibration of the
Metering equipment increased or decreased at a uniform rate over time. To the extent the
foregoing assumption is insufficient to correct the invoices, the Parties shall assume that kWh
output from the Facility is correlated to recent MMBTU input and this same ratio is employed to
estimate the fee for LFG sold.
6.10 The Company shall compile and maintain the Meter data and retain the same for at
least five (5) years from the date they are prepared.
ARTICLE 7 - LFG QUALITY
7.1 The District shall ensure that the Landfill and District LFG Assets are operated in
compliance with the applicable Permits, but the District does not make and affirmatively disclaims
any guarantees, representations, or warranties concerning the quality or quantity of the LFG that
will be available to the Company.
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7.2 If either Party discovers at any time that the District's LFG does not satisfy the
required specification for Acceptable LFG, that Party shall notify the other Party and the Parties
shall discuss their options for improving the quality of the LFG. The District shall respond as
expeditiously as practicable and cost effective to Company concerns and recommendations
concerning the quality of the LFG.
7.3 If the District delivers LFG to Company that does not meet the required
specification for Acceptable LFG, Company shall have the option of: (a) rejecting the LFG or (b)
accepting the LFG and paying the applicable LFG Price. Notwithstanding anything herein to the
contrary, Company shall not be required to accept any LFG that would cause the Company to be
in violation of any valid Permit or in violation of any federal, state or local governmental law or
regulation.
7.4 The District may collect and analyze representative samples of its LFG from time
to time. The District also periodically may wish to collect and analyze a representative sample of
its LFG to determine whether the LFG complies with the specification for Acceptable LFG. In
either case, the District shall promptly provide the LFG test results to Company.
7.5 At its expense, Company may collect and analyze representative samples of LFG
from locations on the Landfill that are determined appropriate by Company. Before collecting the
LFG samples, Company shall coordinate with and obtain permission from the District, which
permission shall not be unreasonably withheld. Company shall promptly provide copies of its LFG
test results to the District. Company shall promptly notify the District anytime Company discovers
that the District's LFG does not satisfy the specification for Acceptable LFG.
ARTICLE 8 - PRICE FOR LFG AND DISTRICT CREDITS
8.1 Price for LFG.
A. Within 180 days after the Effective Date and prior to applying for the FDEP
air permit, Company shall conduct such testing and evaluation as is reasonable and
appropriate to develop a reasonable forecast of the expected Monthly production of
LFG (the "LFG Baseline"). Following completion of such evaluation, Company shall
deliver to the District notice of the LFG Baseline and reasonable documentation
supporting the determination thereof. At any time during the term of this Agreement,
either Party may conduct follow-up testing/evaluations and recommend modification
to the LFG Baseline provided the other party agrees to it (which shall not be
unreasonably withheld).
B. Company shall pay the District each month for any LFG that is accepted by
Company up to the Facility Capacity. With respect to all Acceptable LFG, the amount
of the monthly payments for LFG shall be calculated by multiplying the quantity of
LFG (measured in SCFM) per month times the average energy content of the LFG
during the same month (measured in MMBTU per SCFM) times the LFG Price as
adjusted pursuant to Section 9.4. With respect to any LFG delivered to Company that
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is not Acceptable LFG, the LFG Price shall be $0.00/MMBtu.
C. The LFG Price for a Landfill Gas to electricity project shall be determined
in accordance with the following table and the incentive payment provided in section
8.3. The LFG Price applicable for each month during the Contract Year pursuant to
Section 9.2 shall be based on the LFG Baseline. The LFG Price shall be based on the
actual annual quantities of Acceptable LFG delivered during the preceding Contract
Month.
Month LFG used by
Company* (MMBTU)
LFG Price
($/MMBtu)
Baseline+7,501 to 9,000
$1.28
Baseline+6,001 to 7,500
$1.16
Baseline+4,501 to 6,000
$1.05
Baseline+3,001 to 4,500
$0.96
Baseline+1,501 to 3,000
$0.87
Baseline +1 to 1,500
$0.79
Baseline and below
$0.72
* Excludes periods of time when Company and/or District are down of
maintenance, power outages, and periods of time when Company is
operating at less than full load due to no fault of the District.
The LFG Price for a Landfill Gas to RNG Facility shall equal a royalty payment of
10% of the gross receipts generated by the RNG Facility for the sale of renewable
natural gas generated from the Acceptable LFG ("RNG Gross Receipts");
provided, however, that the Parties shall cooperate, acting reasonably and in good
faith, to discuss increasing the foregoing percentage if and to the extent that the
Parties agree to amend this Agreement to provide for quantity and quality
guarantees from the District that support developing an RNG Facility.
8.2 Price for District Credits.
A. Subject to the provisions herein, the District shall receive the value of any
Environmental Attributes that the District earns for flaring the LFG that is not delivered
to Company. These credits are referred to herein as "District Credits."
B. It is the desire and intent of the Parties that the Company shall actively
attempt to market and sell all of the District Credits on behalf of the District. It is
anticipated that the Company shall use the services of a third party (the "Marketer")
to market and sell credits. Any agreement signed by the Company and Marketer shall,
to the extent commercially practical, 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
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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. District's liability shall be capped by the limits set forth in
section 768.28, Florida Statutes.
C. Subject to the provisions herein, all of the revenues received by the
Company for the District Credits shall inure to the benefit of the District ("District
Credit Revenue"). All of the revenues received by the Company for the Company
Credits shall inure to the benefit of the Company.
D. The District Credit Revenue shall consist of the gross revenue received by
the Marketer from the sale of District Credits, minus the expenses incurred by the
Marketer. The Marketer's expenses may include, but shall not be limited to, the costs
(if any) incurred by the Marketer to calibrate the LFG measurement systems, maintain
a carbon credit registry, and verify the Credits.
E. As compensation to the Company for marketing and administering the
District Credits, Company shall be entitled to retain a percentage of the District Credit
Revenue received by the Company. The Company shall pay the remaining District
Credit Revenue to the District within fifteen (15) days after the Company receives the
District Credit Revenue. The Company's payment of the remaining District Credit
Revenue to the District shall never be less than sixty-seven and one-half percent
(67.5%) of the total District Credit Revenue received by the Company from the
Marketer and is above and beyond the monthly payment for LFG.
F. District hereby assigns to Company the right to market and sell all of the
District's right and title to the District Credits. However, the District shall have the
right to terminate the marketing contemplated in this Agreement without terminating
the rest of the Agreement.
G. Company has the responsibility to act on behalf of both Parties for the
tracking, selling and management of Credits. Company shall have the right and the
obligation to exercise its judgment in good faith when marketing and selling the District
Credits.
8.3 Incentive Payment
A. If the average daily methane content of the LFG delivered is greater than
40% the Company shall pay the District an incentive payment over and above the LFG
Price, as shown in the following table:
For a Landfill Gas to electricity project:
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Average Methane Content in
the Company Used LFG
Incentive Payment ( % of
District Invoice)
>52.1%
6.0%
49.1 to 52%
5.0%
46.1 to 49%
4.5%
43.1 to 46%
4.0%
40.1 to 43%
3.5%
40%
zero
For a Landfill Gas to RNG Facility:
Average Methane Content in
the Company Used LFG
Incentive Payment (% of
RNG Gross Receipts)
>52.1%
3.0%
49.1 to 52%
2.0%
46.1 to 49%
1.5%
43.1 to 46%
1.0%
40.1 to 43%
0.5%
40%
zero
ARTICLE 9 - LFG STATEMENT, INVOICE AND ANNUAL ADJUSTMENT
9.1 LFG Statement.
A. Monthly LFG Statement. On the fifth (5th) day of each month, starting with
the first full month after the LFG Commencement Date, the Company shall provide a
Monthly LFG Statement to the District. The Monthly LFG Statement shall identify:
(1) the total amount of Acceptable LFG provided to the Facility (standard
cubic feet);
(2) the total amount of unacceptable LFG provided to the Facility (standard
cubic feet);
(3) the monthly average methane content of the Acceptable LFG;
(4) the calculated MMBTU's provided to the Facility
(5) the applicable LFG Price; and
(6) the total amount owed to the District.
B. Quarterly LFG Statement. Within thirty (30) Days after the end of each
Quarter, the Company shall provide a Quarterly LFG Statement to the District. The
Quarterly LFG Statement shall identify:
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(1) the total amount of Acceptable LFG provided to the Facility during the
applicable Quarter and the average SCFM of Acceptable LFG
delivered;
(2) the Quarterly average methane content of the Acceptable LFG;
(3) the applicable LFG Price based on the annual average SCFM deliveries
of Acceptable LFG; and
(4) the Quarterly true up payment owed to or by the District calculated as
the product of (i) the difference between the applicable LFG Price
identified in Section 9.1(B)(3) and the LFG Price paid based on the LFG
Baseline and (ii) the total quantity of Acceptable LFG delivered to
Company (the "Quarterly True -up Payment") minus any incentive
payments.
9.2 Monthly LFG Payment. After receipt of the Monthly LFG Statement, the District
shall provide an invoice to the Company for the amounts due. The Company shall pay the dollar
amount owed to the District no later than thirty (30) days after receipt of such invoice.
9.3 Quarterly LFG True -Up. Within thirty (30) Days after receipt of the Quarterly LFG
Statement, the District shall provide a statement to the Company reflecting the amount of the
Quarterly True -up Payment. To the extent the District owes a refund to the Company, the District
shall pay such amount no later than thirty (30) days after issuance of the statement. To the extent
the Company owes a payment to the District, the Company shall pay such amount no later than
thirty (30) days after receipt of the statement.
9.4 Annual Adjustment. On October 1, 2021 and each October 1 thereafter, the LFG
Price shall be adjusted upward by two percent (2%).
ARTICLE 10 - OWNERSHIP, OPERATION AND MAINTENANCE COSTS OF LFG
ASSETS
10.1 The District shall be responsible, at its sole cost and expense, for the operation and
maintenance of the District LFG Assets. The District shall have title to and risk of loss for the
District LFG Assets.
10.2 Company shall be responsible for the operation and maintenance of Company LFG
Assets. The Company shall have title to and risk of loss for the Company LFG Assets.
10.3 If, for reasons other than a Force Majeure event, there is a material reduction in the
quantity of Acceptable LFG produced by the District such that the annual quantity of Acceptable
LFG reasonably expected to be delivered to the Company is below the LFG Baseline, then the
Company may provide written notice to that effect to the District. Promptly following issuance of
the notice, the Parties shall meet and confer to assess the cause of the reduction and potential
options to remedy the reduction. Following the meeting and within a commercially reasonable
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period of time, the District shall implement any no -cost remediation efforts that the Company
reasonably requests be implemented. To the extent that any identified remediation efforts require
material expenditures by the District, the District shall not be obligated to implement such
remediation efforts until and unless the Parties agree on the schedule for implementing the
remediation efforts, the extent to which the District will be reimbursed for such amounts and, if
applicable, the mechanism for such reimbursement. If the Parties are unable to agree upon the
schedule, the reimbursement amount or the reimbursement mechanism, then Company may elect
to either continue accepting LFG and reduce the LFG Baseline based on the revised expected
annual deliveries or terminate this Agreement on written notice to the District. Any termination
by the Company pursuant to this Section 10.3 shall be without further liability of either Party.
10.4 If, for reasons other than a Force Majeure event, there is a material reduction in the
quantity of Acceptable LFG that the Company uses such that the annual quantity of Acceptable
LFG reasonably expected to be used by the Company is below the LFG Baseline, then the District
may provide written notice to that effect to the Company. Promptly following issuance of the
notice, the Parties shall meet and confer to assess the cause of the reduction and potential options
to remedy the reduction. Following the meeting and within a commercially reasonable period of
time, the Company shall implement any no -cost remediation efforts that the District reasonably
requests be implemented. To the extent that any identified remediation efforts require material
expenditures by the Company, the Company shall not be obligated to implement such remediation
efforts until and unless the Parties agree on the schedule for implementing the remediation efforts,
the extent to which the Company will be able to recover such amounts and, if applicable, the
mechanism for such recovery. If the Parties are unable to agree upon the schedule, the recovery
amount or the recovery mechanism, then District may elect to either continue delivering LFG or
terminate this Agreement on written notice to the Company. Any termination by the District
pursuant to this Section 10.4 shall be without further liability of either Party.
ARTICLE 11 - OWNERSHIP AND USE OF LFG
11.1 Ownership, title and control of the LFG and all related Environmental Attributes
and credits shall pass from the District to Company when the LFG is delivered to Company at the
Delivery Point. Environmental Attributes shall remain with the District if the LFG does not pass
the Delivery Point.
11.2 The District may use, vent, or flare any LFG that is not accepted by Company
provided that District has complied with its obligations hereunder.
ARTICLE 12 - WARRANTY OF TITLE TO LFG
12.1 The District warrants that it has title to all LFG and associated Environmental
Attributes that will be delivered to Company hereunder and the District has the right to transfer
such LFG and Environmental Attributes.
12.2 The District warrants that all of the LFG and Environmental Attributes delivered to
Company under this Agreement is owned by the District, free and clear of all liens, encumbrances
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and adverse claims, including but not limited to liens used to secure payment of production taxes,
severance taxes, or other taxes.
ARTICLE 13 - TERMINATION AND REMEDIES
13.1 Delay in Achieving LFG Commencement Date. If the LFG Commencement Date
has not occurred within twelve (12) months following the Effective Date for reasons other than
Force Majeure events or the acts or omissions of the District, District may issue written notice to
Company electing to terminate this Agreement six (6) months following the date such written
notice is issued. If the LFG Commencement Date occurs within six (6) months after Company
receives such written notice, then this Agreement will not terminate and shall continue in full force
and effect. If the LFG Commencement Date does not occur within six (6) months after Company
receives such written notice for reasons other than Force Majeure events or the acts or omissions
of the District, then this Agreement shall terminate and neither Party shall have any further rights,
obligations or Iiabilities hereunder.
13.2 Default and Termination.
A. Events of Default. Either Party may immediately terminate this Agreement
on written notice to the other Party for cause, without prejudice to any other rights or
remedies the terminating Party may have under applicable law, except as provided
herein, when there is an Event of Default by the other Party. An event of default (an
"Event of Default") shall occur if a 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, (3) make an assignment for the benefit of creditors,
other than as permitted in Section 16.11, or (4) fail to perform a material obligation
under this Agreement and such failure is not cured within thirty (30) days after receipt
of written notice of such failure or, if such failure cannot reasonable be cured within
such thirty (30) day period, a good faith reasonable plan to correct the failure within
sixty (60) days is not implemented within such thirty (30) day period.
B. Remedies. Except as otherwise set forth herein, 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 Exclusivity of Remedies below.
C. Exclusivity of Remedies. Each Party waives all claims against the other
Party (and against the affiliates of each, and their respective members, shareholders,
officers, directors, agents and employees) for any consequential, incidental, indirect,
special, exemplary or punitive damages arising out of this Agreement; and, regardless
of whether any such claim arises out of breach of contract, guaranty or warranty, tort,
product liability, indemnity, contribution, strict liability or any other legal theory, each
Party hereby releases the other Party from any such liability. This waiver and exclusion
shall apply even if any express warranty set forth herein fails its essential purpose. Any
liquidated damages payable under this Agreement shall not be deemed consequential
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damages.
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.
E. TERMINATION IN REGARDS TO F.S. 287.135: Company certifies that
it and those related entities of the Company as defined by Florida law are not on the
Scrutinized Companies that Boycott Israel List, created pursuant to s. 215.4725 of the
Florida Statutes, and are not engaged in a boycott of Israel. In addition, if this agreement
is for goods or services of one million dollars or more, Company certifies that it and
those related entities of the Company as defined above by Florida law are not on the
Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies
with Activities in the Iran Petroleum Energy Sector List, created pursuant to Section
215.473 of the Florida Statutes and are not engaged in business operations in Cuba or
Syria. The District may terminate this Contract if the Company is found to have
submitted a false certification as provided under section 287.135(5), Florida Statutes,
been placed on the Scrutinized Companies with Activities in Sudan List or the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or
been engaged in business operations in Cuba or Syria, as defined by section 287.135,
Florida Statutes. The District may terminate this Contract if the Company, including
all wholly owned subsidiaries, majority-owned subsidiaries, and parent companies that
exist for the purpose of making profit is found to have been placed on the Scrutinized
Companies that Boycott Israel List or is engaged in a boycott of Israel as set forth in
section 215.4725, Florida Statutes. Each calendar year on or before January 15, the
Company will certify that they are in compliance with this term
13.3 Upon termination of the Company's right or obligation to receive LFG, as the case
may be, each Party shall within 60 days provide the other Party with a written claim for any
amounts that are due and owing under this Agreement. If a Party disputes any claim for payment,
a written objection must be filed with the other Party within thirty (30) days of receiving the claim.
The written objection must identify the specific reasons for the objection, and it must be
accompanied by full payment for all undisputed amounts. After an objection is filed, the Parties
shall initiate the dispute resolution process in this Agreement.
13.4 Notwithstanding any other provision contained in this Agreement, any Change in
Law of the County Government shall not entitle the District to obtain relief from the requirements
of this Agreement (e.g., by Force Majeure, termination or otherwise) based on that Change in Law.
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13.5 In the event that the respective obligations of the Parties to provide and accept LFG
are terminated in accordance with the provisions of this Agreement, unless the District agrees in
writing that these items can remain, the Company shall remove the above ground, and seal the
below ground, Company LFG Assets that are installed and located on the District's property within
one hundred eighty (180) days of the date of termination of such rights and restore the property to
its near original condition, ordinary wear and tear excepted. Company's right to access, occupy
and use the Interconnect Site and Delivery Point shall continue for the same time period provided
herein for Company to remove its Company LFG Assets. On or before the expiration of the
removal period, Company shall execute a written release of any easement that was granted by the
District pursuant to this Agreement. The only exception will be any LFG expansions that
Company paid for, which will not be removed but instead it will be deeded to the District at no
cost to the District.
13.6 Failure to pay annual Indian River County property taxes shall be a basis for the
District to terminate this Agreement if not cured within 30 days after receipt of written notice of
such failure from the District.
ARTICLE 14 - INDEMNIFICATION AND INSURANCE
14.1 Indemnification.
A. To the extent permitted by law Company shall defend, protect, hold
harmless and indemnify District, its commissioners, directors, officers, employees, and
agents and contractors (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 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.
B. To the extent permitted by law the District shall defend, protect, hold
harmless and indemnify the Company, its directors or partners (as applicable), officers,
employees, other agents or contractors (the "Company 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 the District, its
commissioners, directors, officers, employees, and agents and contractors of any tier;
(b) the failure of or by the District, its commissioners, directors, officers, employees,
24
Final Version
and agents and 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
District under this Agreement; and (d) any breach by District of any representation or
warranty made in this' Agreement. District is not required to hold harmless or
indemnify any Company Indemnified Person for any cost, expense, loss, claim or
liability to the extent caused by any Company Indemnified Person's negligence or
reckless misconduct.
14.2 General Liability Insurance. The Company 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":
A. Workers' Compensation Insurance. Workers' compensation coverage must
be maintained in accordance with current statutory requirements;
B. 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;
C. 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.
D. Excess Coverage. Umbrella or excess liability coverage in the amount of
$2,000,000 shall be maintained.
14.3 Environmental Impairment Insurance. The Company shall procure environmental
impairment insurance prior to the LFG 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" 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 LFG
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 LFG to the Facility
Site pursuant to this Agreement.
14.4 Proof of Financial Responsibility. The Company shall provide the District with an
25
Final Version
irrevocable "standby" 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 in a form
consistent with standard practices in the financial industry, and otherwise on terms and conditions
reasonably acceptable to the Parties. The letter of credit shall be issued in the amount of One
Hundred Thousand Dollars ($100,000.00). The letter of credit shall permit the District to draw
amounts if such amounts are due hereunder and the Company has not paid such amounts.
ARTICLE 15 - TAXES
15.1 Company shall be responsible for all sales and gross receipt taxes, if any, that are
assessed after the delivery of the LFG at the Delivery Point and the District shall be responsible
for all such taxes, if any, incurred prior to such delivery.
15.2 Company shall be responsible for any taxes assessed on the Facility or the Company
LFG Assets. Company shall have no responsibility for any taxes that may be assessed on the
Landfill or the District LFG Assets. The Parties shall cooperate, acting reasonably and in good
faith, to minimize any taxes payable hereunder.
ARTICLE 16 - GENERAL TERMS
16.1 Each Party shall have the right to inspect and copy the books and records of the
other Party relating to this Agreement, when and to the extent necessary to verify the accuracy of
any Monthly LFG Statement. Such inspections shall be coordinated in advance between the Parties
and shall be conducted during normal business hours. The cost of copying documents shall be paid
by the Party requesting the copies.
16.2 Each Party shall have the right to inspect the LFG Assets owned by the other Party.
Any inspections shall be coordinated in advance between the Parties and shall be conducted during
normal business hours.
16.3 The following exhibits ("A" through "D") are attached hereto:
Exhibit "A" — A Legal Description of the District's Landfill, plus a map
depicting the location of the Landfill, the Interconnection Site,
the Delivery Point and the LFG pipeline on the District's
property.
Exhibit "B" — Legal Description and Depiction of the Easements on District
Property Granted to Company.
Exhibit "B-1" — Form of Grant of Non -Exclusive Easement for Landfill Gas
Equipment and Pipeline.
Exhibit "B-2" - Form of Grant of Non -Exclusive Easement for Ingress and
Egress.
Exhibit "C" — Form of Confidentiality Agreement
Exhibit "D" - LFG Process Flow Schematic
These exhibits are incorporated herein by reference and made a part hereof as though set forth in
26
Final Version
their entirety in the text of this Agreement. In the event there is any conflict between the provisions
of this Agreement and the provisions of the exhibits attached hereto, the provisions of this
Agreement shall govern.
16.4 It is acknowledged, understood, accepted and declared by the Parties that
documents held by Company addressing Company operations downstream of the Delivery Point
are intended by the Company to be the private business records of Company, as well as protected
trade secrets. Documents of Company are not intended to become public records pursuant to
Chapter 119, Florida Statutes, solely by the fact of the existence of this Agreement between
Company and the District. However, documents generated by Company relating to the Metering
of LFG and/or the amount of the LFG fees due to the District shall be available for review by the
District. If Company seeks payment of any claims pursuant to the provisions of this Agreement,
any documents relevant to Company claims shall be made available for inspection and copying by
the District.
16.5 Company is not an agent, franchisee, partner, joint venturer, or in any way the agent
of or related to or involved with the District concerning the receipt, use, consumption and
disposition of LFG, except as a purchaser of such LFG.
16.6 Any term, condition, covenant, or obligation in this Agreement that requires
performance by a Party subsequent to termination of this Agreement shall remain enforceable
against such Party subsequent to such termination.
16.7 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 hereto 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 all
other provisions of this Agreement shall, as so amended, modified, supplemented, or otherwise
affected by such action, remain in full force and effect.
16.8 Confidentiality Agreements. The Company believes that the processes, designs
and equipment utilized at the Facility, as they may exist from time to time, are valuable, special,
and unique assets and trade secrets of the Company's business. During the term of this Agreement,
the Company may require the District's employees, and agents, contractors and subcontractors
within the control of the District, to execute a Confidentiality Agreement in the form attached
hereto as Exhibit "C" before such persons are granted access into the Company's buildings where
such persons will have access to Company's Confidential Information (as defined in the
Confidentiality Agreement").
16.9 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
27
Final Version
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.
16.10 Representations and Warranties of Parties.
A. 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 Party which could
materially or adversely affect the performance of this Agreement; and (G) the Parties
shall obtain all permits and approvals as may be required to authorize their respective
performance of the obligations of this Agreement prior to the LFG Commencement
Date. Except as expressly provided herein, the Parties make no representations or
warranties and waive no rights or remedies.
B. 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.
16.11 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.
16.12 Relationship of the Parties; Beneficiaries.
A. 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.
28
Final Version
B. This Agreement is not entered into for the benefit of, nor are any rights
granted to, any third party.
C. It is recognized that the District will discharge some of its responsibilities
through contractors. The District shall be solely responsible for executing any
necessary contracts with contractors. Any such contract shall be entered into by the
District as an independent contractor and not as a representative of Company.
D. 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.
16.13 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.
16.14 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. Email is acceptable notice and is effective when properly addressed and
sent without receipt by the sender of a failure to deliver error; however, emails received 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 District:
County Administrator
Indian River County Administration Building
1801 27th St.
Vero Beach, FL 32960
Phone: (772) 226-1408
Email: jbrown@ircgov.com
29
Final Version
and a copy to the County Attorney at the same address
Phone: (772) 226-1424
Email: dreingold@ircgov.com
As to Company:
Site Director
925 74th Avenue SW
Vero Beach, Florida, 32968-9702
Phone: (772) 562-9662
Fax:772 567 8557
Email: Craig Gontkovic crg@gridenergyservices.com
Alain Castro acastro@irecodistrict.com
and a copy to the Company Attorney at:
John D. Werner
FishmanHaygood LLP
201 St. Charles Avenue, 46th Floor
New Orleans, Louisiana 70170
Phone: (504) 586-5265
Email: jwerner@fishmanhaygood.com
16.15 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.
16.16 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.
16.17 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.
30
Final Version
16.18 Counterparts. This Agreement may be executed in more than one counterpart, each
of which shall be deemed to be an original.
16.19 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.
16.20 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.
16.21 Waiver of Jury Trial. Each Party hereby knowingly, willingly, and irrevocably
waives its right to a trial by jury concerning claims arising under this Agreement.
16.22 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.
16.23 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.
16.24 Time of Essence. The Parties each understand and acknowledge that time is of the
essence of this Agreement.
16.25 Cooperation and Release of Information. District shall cooperate with Company's
requests for public information and District shall release public records concerning the District,
when such documents are requested by Company in compliance with Chapter 119, Florida
Statutes.
16.26 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. Notwithstanding the foregoing, District shall deliver to Company an
opinion of counsel reasonably acceptable to Company confirming that this Agreement is
enforceable against the District in accordance with the terms hereof.
31
Final Version
16.27 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.
THE REMAINDER OF THIS PAGE IS BLANK
32
Final Version
IN WITNESS WHEREOF, the Parties have authorized the execution of this Agreement by
their respective officials on the day, month and year below given.
ATTEST: Jeffrey R. Smith, Clerk
By: /f I9d Z (a60e1.0
Deputy Clerk
APPROVED:
By:
Jaso r : rown
Cou dministrator
APPROVED AS TO LEGAL
FORM AND SUFFICIENCY:
By:
Dylan Reingold
County Attorney
WITNESSES:
Bob Solari, Chairman
District Approved: July 16 , 2019Rl;'£R .6o6.\\:./
COMPANY:
INDIAN RIVER ECO DISTRICT, LLC.
By:
Name:
Title:
Dated F- ZI
33
Final Version
EXHIBIT "A"
A LEGAL DESCRIPTION OF THE DISTRICT'S LANDFILL, PLUS A MAP
DEPICTING THE LOCATION OF THE LANDFILL, THE INTERCONNECTION SITE,
THE DELIVERY POINT AND THE LFG DELIVERY LINE
34
Final Version
EXHIBIT "B"
LEGAL DESCRIPTION AND DEPICTION OF THE EASEMENTS ON DISTRICT
PROPERTY GRANTED TO COMPANY
DESCRIPTION:
AN EQUIPMENT EASEMENT, LYING AND BEING IN A PORTION OF TRACT
10, SECTION 25, TOWNSHIP 33 SOUTH. RANGE 38 EAST ACCORDING TO
THE LAST GENERAL PLAT OF LANDS OF THE INDIAN RIVER FARMS
COMPANY SUBDIVISION AS RECORDED IN PLAT BOOK 2, PAGE 25 OF
THE PUCLIC RECORDS OF ST LUC1E COUNTY, FLORIDA, NOW LYING
AND BEING IN INDIAN RIVER COUNTY, FLORIDA. BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF TRACT 9, SECTION 25,
TOWNSHIP 33 SOUTH, RANGE 38 EAST OF THE AFOREMENTIONED PLAT
OF LANDS OF THE INDIAN RIVER FARMS COMPANY SUBDIVISION RUN
SOUTH 00'14'48" WEST ALONG THE EAST LINE OF SAID TRACT 9 A
DISTANCE OF 149.55 FEET TO A POINT: THENCE LEAVING SAID EAST
LINE OF TRACT 9, RUN NORTH 89'42'28" WEST. PARALLEL WITH AND
NORMAL TO THE NORTH. LINE OF SAID TRACT 9 AND TRACT 10,
SECTION 25, A DISTANCE OF 2173.18 FEET TO A POINT: THENCE RUN
NORTH 00'08'29- WEST A DISTANCE OF 15.00 FEET TO THE POINT OF
BEGINNING. FROM SAID POINT OF BEGINNING CONTINUE NORTH
00'08'29" V/EST A DISTANCE OF 104.55 FEET TO THE SOUTH
RIGHT-OF-WAY LINE OF SUB -LATERAL C-5 CANAL. (INDIAN RIVER FARMS
WATER ER CONTROL DISTRICT 60 FEET WIDE RIGHT-OF-WAY. AS
RECORDED IN PLAT BOOK 2, PAGE 25 PUBLIC RECORDS OF ST. LUCIE
COUNTY, FLORIDA. NOW LYING AND BEING IN INDIAN RIVER COUNTY,
FLORIDA), THENCE RUN SOUTH 89'42'28" EAST ALONG SAID SOUTH
RIGHT -OF -'NAY LINE, PARALLEL WITH AND NORMAL TO THE NORTH
LINE OF SAID TRACT 10, A DISTANCE OF 83.00 FEET: THENCE LEAVING
SAID SOUTH RIGHT-OF-WAY LINE, RUN SOUTH 00'08'29" EAST A
DISTANCE OF 104 55 FEET; THENCE RUN NORTH 89'42'28" WEST,
PARALLEL WITH AND NORMAL TO SAID NORTH LINE OF TRACT 10. A
DISTANCE OF 83.00 FEET TO THE POINT OF BEGINNING
SAID EASEMENT CONTAINING 8677.65 SQUARE FEET OR 0.20 ACRES,
MORE OR LESS
Final Version
EXHIBIT "B-1"
FORM OF GRANT OF NON-EXCLUSIVE EASEMENT FOR LANDFILL GAS
EQUIPMENT AND PIPELINE
GRANT OF NON-EXCLUSIVE EASEMENT
FOR LANDFILL GAS EQUIPMENT AND PIPELINE
THIS EASEMENT is made, granted and entered into this 16th day of July
2019 , by INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT, a dependent special
district of Indian River County, Florida, (hereinafter referred to as "Grantor"), to INDIAN RIVER ECO
DISTRICT, LLC, its successors and assigns, whose real property is adjacent to the real property of the
Grantor, (hereinafter referred to as "Grantee).
WITNESSETH
That Grantor, for and in consideration of the sum of Ten Dollars ($10.00) in hand paid by the
Grantee and other good and valuable consideration, the receipt of which is hereby acknowledged, does
hereby grant to the Grantee, its successors and assigns, a non-exclusive easement which shall permit
Grantee authority to enter upon the Easement Property of the Grantor, including the flare station pad
constructed thereon, at any time during the Grantor's normal business hours and at other times upon
receiving the Grantor's prior consent, which shall not be unreasonably withheld or delayed, to install,
operate, maintain, service, construct, reconstruct, remove, relocate, repair, replace, improve, and inspect
the Grantee's Landfill Gas Assets and other improvements that are located in, on, over, under, and across
the Easement Property. The Grantee's Landfill Gas Assets include, but are not limited to, the Grantee's
pipelines, wires, compressors, coolers, metering equipment, valves, controls and other related equipment
for the measurement, transmission, connection, handling, monitoring and management of landfill gas
(collectively, the "Facilities").
The Easement Property hereby granted covers that certain land lying, situate and being in Indian
River County, Florida, and being more particularly described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
together with the right and privilege from time to time to reconstruct, inspect, alter, improve, enlarge,
replace, remove or relocate such Facilities and with all rights and privileges necessary or convenient for the
full enjoyment or use thereof for the herein -described purposes, including, but not limited to the right to cut
and keep clear all trees and undergrowth and other obstructions within said area that may interfere with the
proper construction, operation and maintenance of such Facilities, the right to mark the location of any
underground Facilities by above -ground and other suitable markers and the right of ingress, and egress for
personnel and equipment of Grantee, its contractors, agents, successors or assigns, over the adjoining lands
of the Grantor, for the purpose of exercising and enjoying the rights granted by this easement and any or
all of the rights granted hereunder.
The Grantor, however, reserves the right and privilege to use the above-described property for any
such purposes suitable to the Grantor except as might interfere or be inconsistent with the use, occupation,
maintenance or enjoyment thereof by Grantee or its successors or assigns, or as might cause a hazardous
condition.
It is understood and agreed that this easement will continue in effect for the benefit of Grantee, its
36
Final Version
successors and assigns until the occurrence of the first of the following events: (a) the easement is no
longer used by Grantee, its successors and assigns, for the purpose for which this grant is provided; or (b)
the Landfill Gas Agreement between the Grantor and the Grantee is terminated or expires and is not
replaced by another agreement requiring the same easement. At such time as one of these two events occur,
the rights herein granted shall terminate and full use of the Easement Property shall be enjoyed by Grantor,
its successors or assigns, and Grantee shall execute a release of all rights under this grant of easement.
Grantor hereby covenants with Grantee that it is lawfully seized and in possession of the real
property herein described and that it has good and lawful right to grant the aforesaid easement free and
clear of mortgages and other encumbrances unless specifically stated to the contrary.
IN WITNESS WHEREOF, the Grantor has hereunto set its hand and affixed its seal of the date
first above written.
ATTEST: Jeffrey R. Smith, Clerk
By:
Deputy Clerk
APPROVED:
By:
Jas Brown
Co Administrator
APPROVED AS TO LEGAL
FORM AND SUFFICIENCY:
By:
Dylan Reingold
County Attorney
WITNESSES:
INDIAN RIVER COUNTY SOLED'''''''�°^✓F9::
WASTE DISPOSAL DISTRICT t(�l 1[Il
•
By:
Bob Solari, Chairman%I/1 I r
P. � �Z
.,,bER COON
District Approved: July 16 , 2019 '''''
COMPANY:
INDIAN
By:
Name: 1pON, C�t
11,1
Title:
DISTRICT, LLC.
Dated U- -2t - /9
37
Final Version
EXHIBIT "A" to EXHIBIT "B-1"
LEGAL DESCRIPTION
1
Final Version
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TOIINSI'l 33 501)TH. RANGE' 38 EAST
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PART or /RAGS 7 ANO 4 SECTION ?3.
TOSINSMC 33 SOON RANGY 38 EAST
INDIAN RIVER FARMS COMPANY SIft w910N
M30NAN RIVER COUNTY. FLORIDA.
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2
Final Version
the rights herein granted shall terminate and full use of the Easement Property shall be enjoyed by Grantor,
its successors or assigns, and Grantee shall execute a release of all rights under this grant of easement.
Grantor hereby covenants with Grantee that it is lawfully seized and in possession of the real
property herein described and that it has good and lawful right to grant the aforesaid easement free and
clear of mortgages and other encumbrances unless specifically stated to the contrary.
IN WITNESS WHEREOF, the Grantor has hereunto set its hand and affixed its seal of the date
first above written.
ATTEST: Jeffrey R. Smith, Clerk INDIAN RIVER COUNTY SOLID
WASTE DISPOSAL DISTRICT
Deputy Clerk
APPROVED:
By:
Ja Brown
Administrator
APPROVED AS TO LEGAL
FORM AND SUFFICIENCY:
By:
By:
Bob Solari, Chairman
District Approved: July 16, 2019
ylan Reingold
County Attorney
WITNESSES:
)0144-J-eAl
COMPANY:
INDIAN
By:
Name:
0 DISTRICT, LLC.
Title:
Dated U ` Z / -/ 9
Final Version
EXHIBIT "B-2"
FORM OF GRANT OF NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS
GRANT OF NON-EXCLUSIVE EASEMENT
FOR INGRESS AND EGRESS
THIS EASEMENT is made, granted and entered into this 16th day of July
2019 , by INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT, a dependent special
district of Indian River County, Florida, (hereinafter referred to as "Grantor"), to INDIAN RIVER ECO
DISTRICT, LLC, its successors and assigns, whose real property is adjacent to the real property of the
Grantor, (hereinafter referred to as "Grantee).
WITNESSETH
That Grantor, for and in consideration of the sum of Ten Dollars ($10.00) in hand paid by the
Grantee and other good and valuable consideration, the receipt of which is hereby acknowledged, does
hereby grant to the Grantee, its successors and assigns, a non-exclusive easement which shall permit
Grantee authority to enter upon the Easement Property of the Grantor at any time during the Grantor's
normal business hours and at other times upon receiving the Grantor's prior consent, which shall not be
unreasonably withheld or delayed, for ingress and egress to the Grantee's Landfill Gas Assets located on
Grantor's property, to install, operate, maintain, service, construct, reconstruct, remove, relocate, repair,
replace, improve, and inspect the Grantee's Landfill Gas Assets and other improvements that are located
in, on, over, under, and across the Grantor's property. The Grantee's Landfill Gas Assets include, but are
not limited to, the Grantee's pipelines, wires, compressors, coolers, metering equipment, valves, controls
and other related equipment for the measurement, transmission, connection, handling, monitoring and
management of landfill gas (collectively, the "Facilities").
The Easement Property hereby granted covers that certain land lying, situate and being in Indian
River County, Florida, and being more particularly described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
together with the right and privilege from time to time to alter, repair and improve if necessary, the
Easement Property for ingress and egress purposes, and with all rights and privileges necessary or
convenient for the full enjoyment or use thereof for the herein -described purposes, including, but not limited
to the right to cut and keep clear all trees and undergrowth and other obstructions within said area that may
interfere with the proper use of such Easement Property, and the right of ingress and egress for personnel
and equipment of Grantee, its contractors, agents, successors or assigns, for the purpose of exercising and
enjoying the rights granted by this easement and any or all of the rights granted hereunder.
The Grantor, however, reserves the right and privilege to use the above-described property for any
such purposes suitable to the Grantor except as might interfere or be inconsistent with the use, occupation,
maintenance or enjoyment thereof by Grantee or its successors or assigns, or as might cause a hazardous
condition.
It is understood and agreed that this easement will continue in effect for the benefit of Grantee, its
successors and assigns until the occurrence of the first of the following events: (a) the easement is no
longer used by Grantee, its successors and assigns, for the purpose for which this grant is provided; or (b)
the Landfill Gas Agreement between the Grantor and the Grantee is terminated or expires and is not
replaced by another agreement requiring the same easement. At such time as one of these two events occur,
3
Final Version
EXHIBIT "A" to EXHIBIT "B-2"
LEGAL DESCRIPTION
2
Final Version
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PART OF TRACTS 9 AND 10, SECTION 25
TORNSHIP 33 SOUTH RANGE 38 EAST
INDIAN RIVER FARMS COMPANY SUBDIVISION
INDIAN RIVER COUNTY, FLORIDA.
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Final Version
EXIIIBIT "C"
FORM OF CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement"), effective as of the last date signed below ("Effective
Date"), is by and between I.R. Eco—District ("Company") and Indian River County Solid Waste
Disposal District ("District"), a special dependent district of Indian River County, Florida.
RECITALS:
WHEREAS, each of Company and the County shall each be referred to as a "Party" and collectively
as the "Parties";
WHEREAS, the Parties have held discussions and exchanged information regarding the
development of a landfill gas electricity generating facility, associated agreements and related matters, and
will continue to hold discussions and exchange information concerning the development and operation
thereof (the "Transaction"); and
WHEREAS, in the course of discussions regarding the Transaction, it will be necessary for a Party
("Disclosing Party") to release certain Confidential Information (as defined below) to another Party
("Receiving Party").
NOW, THEREFORE, in consideration of the mutual promises and covenants made herein, the
receipt and sufficiency of which is hereby acknowledged, and with the intent to be legally bound hereby, the
Parties agree as follows:
1. Confidential Information. "Confidential Information" shall mean all information, regardless of
the form in which it is communicated or maintained (whether oral, written, electronic or visual) and whether
prepared by Disclosing Party or otherwise, which is disclosed to Receiving Party, regardless of whether such
information is disclosed before or after the execution of this Agreement, in connection with the Transaction
and including all records, reports, analyses, notes, memoranda, documentation, data, specifications,
diagrams, statistics, systems or software, manuals, business plans, operational information or practices,
processes (whether or not patented, patentable or reduced to practice), customer lists, contractual
arrangements with, and information about, the Disclosing Party's suppliers, distributors and customers, the
existence of the discussions between the Parties concerning the Transaction, or other information that are
based on, contain or reflect any such Confidential Information. For such Confidential Information provided
by Company to the Country, Company will designate such documents, materials, or information as such and
satisfy the requirements for the applicable exemption (e.g. section 812.081, Florida Statutes) in order to
invoke such exemption from disclosure otherwise required of the other parties as public agencies pursuant
to the Florida Public Records Act. Confidential information also includes any security system plans, which
include records, information, photographs, audio and visual presentations, schematic diagrams, surveys,
recommendations, or consultations or portions thereof relating directly to the physical security of the facility
or revealing security systems; threat assessments conducted by District or any private entity; threat response
Final Version
plans; emergency evacuation plans; sheltering arrangements; or manuals for security personnel, emergency
equipment, or security training. Additionally, building plans, blueprints, schematic drawings, and diagrams,
including draft, preliminary, and final formats, which depict the internal layout and structural elements of a
building, arena, stadium, water treatment facility, or other structure owned or operated by the District are also
Confidential Information. All information received from the Disclosing Party shall be considered Confidential
Information, unless it is specifically designated as non-proprietary and non -confidential. For the avoidance
of doubt, a Party's Confidential Information specifically includes data disclosed by or through such Party's
affiliates, or their respective owners, officers, employees, members, or representatives.
Confidential Information shall not include: (a) information which is or becomes publicly
available other than as a result of a violation of this Agreement; (b) information which is or becomes available
on a non -confidential basis from a source which is not known to the Receiving Party to be prohibited from
disclosing such information pursuant to a legal, contractual or fiduciary obligation to the Disclosing Party;
(c) information which the Receiving Party can demonstrate was legally in its possession prior to disclosure
by the Disclosing Party; or (d) information which is developed by or for Receiving Party independently of the
Disclosing Party's Confidential Information.
2. Nondisclosure and Use of Confidential Information. Confidential Information shall not be
used for any purpose other than to analyze, evaluate, negotiate, implement or complete the Transaction.
Confidential Information shall be held in strict confidence by Receiving Party and shall not be disclosed
without prior written consent of Disclosing Party, except to those advisors, affiliates, subcontractors, agents,
assigns, attorneys, employees, directors, officers and/or members ("Representatives") with a need -to -know
the Confidential Information for the purposes of analyzing, implementing or completing the Transaction.
Receiving Party shall be responsible for any breach of this Agreement by the Receiving Party or its
Representatives. The Receiving Party shall use the same degree of care to protect the Confidential
Information as the Receiving Party employs to protect its own information of like importance, but in no event
less than a reasonable degree of care based on industry standard.
3. Required Disclosure. In the event that Receiving Party is requested or required by legal or
regulatory authority to disclose any Confidential Information, the Receiving Party shall promptly notify the
Disclosing Party of such request or requirement prior to disclosure, if permitted by law, so that Disclosing
Party may seek an appropriate protective order. In the event that a protective order or other remedy is not
obtained, Receiving Party agrees to furnish only that portion of the Confidential Information that it reasonably
determines, in consultation with its counsel, is consistent with the scope of the subpoena or demand, and to
exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential
Information. Receiving Party will provide reasonable cooperation to Disclosing Party and its legal counsel
with respect to performance of the covenants undertaken pursuant to this Section 3.
4. Remedies. The Receiving Party agrees that money damages would not be a sufficient
remedy for any breach of this Agreement and that Disclosing Party shall be entitled to seek injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of this Agreement. Such remedy shall
not be the exclusive remedy for any breach of this Agreement, but shall be in addition to all other rights and
remedies available at law or in equity. Notwithstanding anything contained in this Agreement, the Receiving
Party's liability to the Disclosing Party in connection with this Agreement and any activities undertaken in
connection with the evaluation of the Transaction shall be limited to direct damages and shall exclude any
other liability, including without limitation liability for special, indirect, punitive or consequential damages in
contract, tort, warranty, strict liability or otherwise. delivered by the signatory so authorized, and the
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Final Version
obligations contained herein constitute the valid and binding obligations of such Party, subject to approval of
a Party's governing body, as may be required.
5. Return or Destruction. Unless, otherwise required by law, at any time upon the Disclosing
Party's written request, the Receiving Party shall return or destroy, at the Receiving Party's option, all written
Confidential Information of the Disclosing Party, including that portion of such Confidential Information that
may be found in analyses, compilations, studies or other documents prepared by, or for, the Receiving Party,
and the Receiving Party and its Representatives shall not retain any copies of such written Confidential
Information; provided, however, that Confidential Information may be retained by the Receiving Party to the
extent that retention of such Confidential Information is necessary to comply with the Receiving Party's
internal document retention policies aimed at legal, corporate governance or regulatory compliance and any
such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth
herein, notwithstanding any termination or expiration of this Agreement. The Receiving Party shall, upon
written request of the Disclosing Party, cause one of its duly authorized officers to certify in writing to the
Disclosing Party that the requirements of the preceding sentence have been satisfied in full. The Receiving
Party shall not be deemed to have retained or failed to return or destroy any Confidential Information if
Confidential Information received or stored in digital format is deleted from local hard drives so long as no
attempt is made to recover such Confidential Information from servers or back-up sources, provided that any
such retained Confidential Information shall remain subject to the disclosure and use restrictions set forth
herein, notwithstanding any termination or expiration of this Agreement.
6. No Other Agreement. It is understood that this Agreement is not intended to and does not,
obligate any Party to enter into any further agreements or to proceed with any possible relationship or other
transaction, including without limitation the Transaction, or to require any Party to disclose any information
under this Agreement. Any pricing lists, proposals or summaries disclosed under this Agreement are
intended only to provide a framework for further discussions among the Parties. Pricing documents are not
an offer or a commitment of any Party.
7. No License. It is understood that nothing contained in this Agreement shall be construed as
granting or conferring rights by license or otherwise in any Confidential Information disclosed to Receiving
Party. Nothing in this Agreement is intended to prevent any Party hereto from using its own Confidential
Information which it furnished hereunder for dealings with third parties for any purpose.
8. Amendment. Any amendment to this Agreement must be in writing and signed by an
authorized representative of each Party.
9. No Assignment. This Agreement may not be assigned by any Party unless prior written
consent is obtained from the other Parties.
10. Non -Waiver. No waiver of any provision of this Agreement shall be deemed to be nor shall
constitute a waiver of any other provision whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
11. Governing Law. This Agreement shall be governed by, and construed in accordance with
the laws of the State of Florida without regard to its conflict of law's provisions. Any disputes resulting in
litigation between the Parties shall be conducted exclusively in Indian River County, Florida for claims
brought in state court, and the Southern District of Florida for those claims justiciable in federal court.
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12. Term. This Agreement shall terminate one (1) year from the Effective Date of this
Agreement, or thirty (30) calendar days following written notice by any Party to the others of its desire to
terminate this Agreement, whichever occurs first. However, except as to 1) security system plans, which
include records, information, photographs, audio and visual presentations, schematic diagrams, surveys,
recommendations, or consultations or portions thereof relating directly to the physical security of the facility
or revealing security systems; threat assessments conducted by District or any private entity; threat response
plans; emergency evacuation plans; sheltering arrangements; or manuals for security personnel, emergency
equipment, or security training; and 2) building plans, blueprints, schematic drawings, and diagrams,
including draft, preliminary, and final formats, which depict the internal layout and structural elements of a
building, arena, stadium, water treatment facility, or other structure owned or operated by District, the
obligations contained herein shall remain in effect for a period of two (2) years from the date the Confidential
Information was disclosed under this Agreement. With respertct to security system plans, which include
records, information, photographs, audio and visual presentations, schematic diagrams, surveys,
recommendations, or consultations or portions thereof relating directly to the physical security of the facility
or revealing security systems; threat assessments conducted by District or any private entity; threat response
plans; emergency evacuation plans; sheltering arrangements; or manuals for security personnel, emergency
equipment, or security training, and building plans, blueprints, schematic drawings, and diagrams, including
draft, preliminary, and final formats, which depict the internal layout and structural elements of a building,
arena, stadium, water treatment facility, or other structure owned or operated by District the obligations
contained herein shall remain permantly in effect.
13. Entire Agreement. This Agreement constitutes the full and entire agreement between the
Parties regarding the confidentiality of Confidential Information. The Parties agree that the Recitals are true
and correct and form a vital part of this Agreement. The descriptive headings of this Agreement are inserted
for convenience only and do not constitute a substantive part of this Agreement.
14. Counterparts. This Agreement may be signed in counterparts and may be delivered by
facsimile or electronic means, each of which may be deemed an original, and all of which together constitute
one and the same agreement.
15. Authorization and Binding Obligations. Each Party represents to the other Party that the
execution, delivery and performance of this Agreement have been duly authorized, and this Agreement has
been duly executed and delivered by the signatory so authorized, and the obligations contained herein
constitute the valid and binding obligations of such Party, subject to approval of a Party's goveming body, as
may be required.
16. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER
OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
17. Publicity. Unless otherwise required by law, no Party shall make any public disclosures
regarding another Party, or the subject matter hereof, including, without limitation, any advertisements,
publications or documents, without the prior written approval of such other Party.
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Final Version
18. No Warranties. Each Party acknowledges that the Disclosing Party provides the
Confidential Information on an "as is" basis and without warranty of any kind. THE DISCLOSING PARTY
EXPRESSLY DISCLAIMS ALL WARRANTIES PERTAINING TO THE CONFIDENTIAL INFORMATION,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
19. Export of Confidential Information. Each Party receiving Confidential Information hereunder
agrees that it and its Representatives will not export such Confidential Information in contravention of the
provisions of (a) the U.S. Export Administration Act, as amended, and the regulations issued thereunder and
(b) any other applicable laws of other countries and/or jurisdictions.
20. Confidential Information from Third Party Contractors. District Confidential Information
may be provided to Company through third party contractors. Confidential Information provided by third party
contractors shall be subject to the same requirements under this Agreement as Confidential Information
provided directly by District. Company Confidential Information may be provided to District through third party
contractors. Confidential Information provided by third party contractors shall be subject to the same
requirements under this Agreement as Confidential Information provided directly by Company.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
[COMPANY]
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By:
Name:
Title:
Date:
5
INDIAN RIVER COUNTY
Title:
Date: July 16, 2019
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
BY
DYLAN REINGOLD
COUNTY ATTORNEY
Attest
Jeffrey
Clerk
Court and
EXHIBIT "D"
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