HomeMy WebLinkAbout2024-031AAMENDMENT NO. 4 TO LANDFILL GAS AGREEMENT
This Amendment No. 4 ("Amendment No. 411) to that certain Landfill Gas
Agreement, (as amended and modified prior hereto, the "Agreement"), by and between the
Indian River County Solid Waste Disposal District, a dependent special district of Indian
River County, Florida (the "District") and Nopetro Eco District, LLC, a Florida Limited
Liability Company (the "Company" or "NED"), successor by assignment from Indian River
Eco District, LLC (the "IRED"), is made and entered into as of -March S , 2024
("Effective Date"). The District and the Company are each a "Party" and collectively the
"Parties".
WHEREAS, the District and IRED entered into the Agreement dated as of July 16
2019 (the "Original Agreement") pursuant to which the District would deliver and IRED
would accept, landfill gas from the District, which Original Agreement has been amended
three times by the Parties: on July 14, 2020 ("Amendment No. V), May 18, 2021
("Amendment No. 211) and December 20, 2022 ("Amendment No. Y); and
WHEREAS, both Parties agree to extend the LFG Commencement Date and the
LFG Termination Date by eight (8) months in consideration of an additional payment of
$60,000.00 as defined below;
WHEREAS, both Parties agree to commit to standard operating procedures under
Sections 3.1 and 3.2 by June 30, 2024, as both parties agree that the division of
responsibilities are not clearly defined under those Sections; and
WHEREAS, the Company and IRED entered into that certain Assignment and
Assumption Agreement (the "Assignment") dated as of November 29, 2021 pursuant to
which IRED assigned to the Company and the Company assumed all of IRED's rights
and obligations under the Agreement.
NOW, THEREFORE, in consideration of the premises, any prior claims for
Force Majeure having been resolved, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree to
amend and modify the Agreement and all prior amendments as follows:
1. The above recitals are true, correct and describe the intent of the Parties
concerning Amendment No. 4.
2. The Parties agree to reconvene shortly after groundbreaking to further
define, clarify, and finalize the division of responsibilities and operating
procedures under Sections 3.1 and 3.2, no later than. June 30, 2024.
ARTICLE 1— DEFINITIONS
Section 1.1 is amended to strike "Gross Receipts" as a defined term from the Agreement
(and subsequent Amendments) and replaced or substituted with "Net Proceeds" as follows
(other clauses or definitions not referenced below will stay as written):
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Interest Expense — means the monthly cost of interest on debt financed for the
construction of the Facility and not to include subsidiaries.
Itemized Expense — means the cost accrued per month, limited to the listed items and any
accompanying annual cap under the Cost of Goods Sold, Selling General and
Administrative Expenses (SG&A), and Other Costs, which are directly related to the
RNG Facility and not to include subsidiaries as reflected in Exhibit E.
Net Proceeds — means the gross receipts received by the Company per month (as reflected
in the Monthly LFG Statement) from the sale of RNG from the Facility, including any
and all Environmental Attributes minus the Itemized Expense.
ARTICLE 2 - TERM, RENEWAL AND MILESTONES
Section 2.1 is amended to read as follows (other clauses not referenced below will stay
as written):
2.1. This Agreement shall take effect on the Effective Date and continue for a
period of twenty (20) years following the LFG Commencement Date (the
"Initial Term"), unless terminated earlier or extended in the manner as
provided herein.
The Parties herein agreed to change the LFG Commencement Date from
June 30, 2024 to February 28, 2025, unless extended as provided herein
(the "LFG Commencement Date"). This agreement is contingent upon
the Company paying the District a pre -start-up fee of $60,000 upon 30
days of the Effective Date of this Amendment. The Parties agree that
with this extension, all claims of Force Majeure arising prior to the
execution of this Amendment 4 to the Agreement have been resolved and
released, and further agree that no such prior claim of Force Majeure can
be raised as an excuse for future nonperformance. The Parties herein also
agreed to change the LFG Termination Date from September 30, 2024 to
May 31, 2025, unless extended as provided herein (the "LFG
Termination Date"). If the LFG Commencement Date has not occurred
by May 31, 2025 (subject to extension by Force Majeure), Section 13.1
shall apply.
Company shall meet the following milestones as a demonstration of their
progress toward achieving the LFG Commencement Date and meeting
the obligations of this Agreement:
a) Groundbreaking shall occur by March 30, 2024.
The above milestones shall be extended for any delays caused solely by the
District, acknowledged in writing by the District, or by an event of Force
Majeure, but only to the extent of and for the duration of any such delay.
ARTICLE 3 -THE PARTIES' LFG FACILITIES
Section 3.1 is amended by the insert of Sections 3.1 K to read as follows (other clauses not
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referenced below will stay as written):
3.1. District Responsibilities and Obligations.
K. The District has purchased and fabricated a High -Pressure Skid System
with chiller to provide pressurized dry gas to the Company at 4 PSIG (pounds
per square inch gauge) as designed and shown in the attached drawings. The
District will install the High -Pressure Skid System prior to the commissioning of
the RNG Plant. In addition, the District will be responsible for measuring and
recording the quantity and quality of LFG that is delivered to Company at the
Delivery Point, which is on the District's property, and this information will
be used to correlate Acceptable Landfill Gas with the Company. The District
will, at a minimum, factory calibrate the flow and quality metering equipment
at least twice per year and provide copies of those calibrations to the
Company. The District makes no guarantee of delivered gas quality, quantity,
pressure temperature, or any other measure.
ARTICLE 13 -TERMINATION AND REMEDIES
Section 13.1 is amended to read as follows (other clauses not referenced below will
stay as written):
13.1 Delay in Achieving LFG Commencement Date. If the Company has not met the
LFG Commencement Date as set forth in Section 2. 1, the Company will pay the
District $15,000 a month as liquidated damages and not as a penalty for each
month until the LFG Commencement Date has occurred or until the Agreement
has terminated.
If the LFG Commencement Date has not occurred by May 31, 2025 (subject to
extension due to Force Majeure), then this Agreement shall terminate and neither
Party shall have any further rights, obligations, or liabilities hereunder,
provided, however, that the District shall not have the right to terminate this
Agreement pursuant to this paragraph if on or prior to May 31, 2025 (or such other
date as may be extended due to Force Majeure), the Company provides reasonable
evidence to the District that (i) the RNG PIant has been substantially built, as
evidenced by site visits and/or photographic evidence, showing that the plant is
visible and substantially built, and (ii) the Company is taking active steps to cure
and overcome any circumstances or issues causing the delay of the LFG
Commencement Date and the Company is using its commercially reasonable
efforts to expedite the LFG Commencement Date; and (iii) the Company pays
$20,000 per month as liquidated damages and not as a penalty for each month
until the LFG Commencement Date has occurred.
A. DeIgy in MeetinR Milestones. If the milestones listed in Section 2.1 are not met
by Company, then Company shall pay District as follows:
iii. $15,000 per month for the 3rd milestone not achieved (prorated for a
partial month) until milestone is achieved.
Milestone Payments. The total amount of the liquidated damages is payable
from Company to District within thirty (30) days of invoice from District to
Company. No liquidated damages payable or payment pursuant to Section 13.1
may be deducted from the gross receipts received by the Company for the sale of
RNG from the Facility in the calculation of Net Proceeds.
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ARTICLE 16 -GENERAL TERMS
Section 16.14 Notices is amended to update the contact information of the Parties as
follows (other clauses not referenced below will stay as written):
As to District:
John A. Titkanich, Jr., County Administrator
Indian River County Administration Building
1801 27th St.
Vero Beach, FL 32960
Phone: (772) 226-1408
Email: jtitkanich@indianriver.gov
and a copy to the Assistant County Attorney at the same address
K. Keith Jackman
Phone: (772) 226-1422
Email: kjackman@indianriver.gov
As to Company:
Jorge Herrera, Chief Executive
Officer
150 SE 2nd Avenue, PH I
Miami, Florida, 33131
Phone: (305) 441-9059
Fax: (305) 441-9085
Email: jherrera@nopetro.com
and a copy to the Company Attorney at:
Emilio Alvarez
Greenberg Traurig
333 SE 2nd Ave, Suite 4400
Miami, Florida 33131
Phone: (305) 579-0703
Fax: (305) 579-0717
Email: alvarezem@gtlaw.com
Mike Whitney, Senior Vice
President
150 SE 2nd Avenue, PHI
Miami, Florida, 33131
Phone: (517) 712-4996
Fax: (305) 441-9085
Email: mwhitney@nopetro.com
Peter J. Sweeney
Block & Scarpa
6012 1 't Street, Suite 401
Vero Beach, FL 32960
Phone: (772) 794-1918
Email: psweeney@blockscarpa.com
All other sections and contents of the Agreement shall remain the same.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, District and Company hereto have executed this Amendment
No. 4 as of the date lust written above.
Attest:
Ryan L. Butler, Clerk of Court and ComptroIier
By: Rala 011i'dw
Deputy Clerk
By Owner:
Solid Waste Disposal District
Indyan River County, Florjds
Chairman
Date Approved by SWDD: v"� �E� COUP
Januar 23 2024
Approved By:
4WW-/XW.--G&
A. Titkanicli, Jr., County Administrator
Aunroved as to Form and Legal Sufficiency By:
�Asant County Attorney
By Company:
NOPETRO ECO DISTRICT, LLC
Print N e: Jor a Herrera
Print Chief Executive Officer
Print Date: February 14, 2024
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