HomeMy WebLinkAboutAgreement A-22-166.pdf Agreement No. 22-166
1 COUNTY OF FRESNO
AADS LANDFILL GAS TO ENERGY PROJECT
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REVENUE AGREEMENT
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5 Table of Contents
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I. INTRODUCTION: PROJECT OVERVIEW..............................................................3
7 II. TERMS AND CONDITIONS FOR LANDFILL GAS TO ENERGY PROJECT.........4
8 ARTICLE 1. DEFINITIONS:........................................................................................5
ARTICLE 2. PURPOSE............................................................................................ 15
9 ARTICLE 3. TERM OF REVENUE AGREEMENT; DEADLINES ............................ 16
10 ARTICLE 4. TERMINATION OF REVENUE AGREEMENT..................................... 18
ARTICLE 5. LANDFILL OPERATION......................................................................20
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ARTICLE 6. ALLOTTED LFG-TO-ENERGY PROJECT PLAN .............................27
12 ARTICLE 7. CEQA COMPLIANCE.........................................................................28
13 ARTICLE 8. NON-INTERFERENCE BY DEVELOPER'S FACILITIES....................30
ARTICLE 9. COSTS, EXPENSES AND GOVERNMENTAL CHARGES AND TAXES
14 ...................................................................................................................................33
ARTICLE 10. DEVELOPER'S TESTING AND PREPARATION OF WORK............35
15 ARTICLE 11. RESERVED 37
16 ARTICLE 12. AUTHORIZATIONS AND GOVERNMENTAL APPROVALS ............37
17 ARTICLE 13. DEVELOPER'S FACILITIES; WORK................................................39
ARTICLE 14. QUALIFICATIONS OF SUBCONTRACTORS...................................42
18 ARTICLE 15. CONSTRUCTION BY DEVELOPER..................................................43
19 ARTICLE 16. AMENDMENT REGARDING WORK...................................................64
ARTICLE 17. STARTUP; COMMISSIONING; PERFORMANCE TESTING FINAL
20 APPROVAL...............................................................................................................65
21 ARTICLE 18. INITIAL SWITCH OVER.....................................................................70
ARTICLE 19. UTILITIES...........................................................................................70
22 ARTICLE 20. TRANSFER POINT............................................................................71
23 ARTICLE 21. RESERVED........................................................................................72
ARTICLE 22. DEVELOPER'S USE OF PURCHASED LFG....................................72
24 ARTICLE 23. LFG MONITORING AND REPORTING .............................................73
25 ARTICLE 24. OPERATIONS OF DEVELOPER'S FACILITIES...............................76
ARTICLE 25. DEVELOPER'S SAFETY INSPECTIONS AND REPORTS...............77
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ARTICLE 26. COORDINATION BY PARTIES.........................................................78
27 ARTICLE 27. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS ..79
28 ARTICLE 28. MAINTENANCE.................................................................................82
ARTICLE 29. DEVELOPER'S FINANCING .............................................................85
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ARTICLE 30. RENEWABLE ENERGY CERTIFICATES (RECS)............................86
1 ARTICLE 31 OWNERSHIP 87
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2 ARTICLE 32. HAZARDOUS MATERIALS...............................................................87
3 ARTICLE 33. INDEMNIFICATION AND DEFENSE.................................................91
ARTICLE 34. INSURANCE, RISK OF LOSS, BONDS, PERFORMANCE
4 SECURITY.................................................................................................................99
ARTICLE 35. FORCE MAJEURE .......................................................................... 108
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ARTICLE 36. DISPUTE RESOLUTION.................................................................. 110
6 ARTICLE 37. EVENTS OF DEFAULT ................................................................... 114
7 ARTICLE 38. REMEDIES UPON DEFAULT.......................................................... 119
ARTICLE 39. ASSIGNMENT.................................................................................. 122
8 ARTICLE 40. REPRESENTATIONS AND WARRANTIES .................................... 123
9 ARTICLE 41. MISCELLANEOUS PROVISIONS ................................................... 126
ARTICLE 42. EXHIBITS.......................................................................................... 137
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2 I. INTRODUCTION: PROJECT OVERVIEW
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4 A. Following the County of Fresno ("County") and Developer entering into the
5 Revenue Agreement, and if Developer, under a comprehensive Turnkey program,
6 provides, develops, engineers, designs, constructs, finances, installs, implements,
7 owns, operates, and maintains Developer's Facilities (defined in 1.10 below) in
8 accordance with the Revenue Agreement and Good Industry Practices (defined in 1.16
9 below), pursuant to the requirements of all Authorizations, Governmental Approvals,
10 and Applicable Laws and Regulations, and following the Developer's compliance with
11 Article 7, which shall precede the Parties entering into the Ground Lease, and the
12 Parties entering into the Ground Lease, and Developer's completion, testing, and
13 commissioning of Developer's Facilities, and County's Final Approval, then County will
14 sell to Developer, and Developer will purchase from County, the Allotted LFG captured
15 by County from the County's LFG Management System at the Landfill and made
16 available by County to Developer during the Term of the Revenue Agreement, all of
17 which shall be at Developer's sole cost and expense, and in accordance with and
18 subject to the terms and conditions of the Revenue Agreement.
19 B. Developer shall not acquire any right, title, or interest in or to the County's
20 LFG Management System, or any part thereof. Developer shall not acquire any right,
21 title, or interest in or to the Landfill, including the Premises, or any part thereof, or any
22 related use of the County's real property, or any interest thereof, except for Developer's
23 right to use the Premises, according to the terms and conditions of the Revenue
24 Agreement and the Ground Lease.
25 C. The Project (defined in 1.28 below) may utilize the Allotted LFG and
26 compensate the County pursuant to (i) the calculation of the Net Proceeds; (ii) the
27 calculation of the Remittance of Net Proceeds; and (iii) the Remittance of Net Proceeds
28 Payment provisions set forth in this Revenue Agreement. Developer shall be
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1 responsible for paying the costs, expenses, governmental charges, and taxes described
2 in Article 9 regardless of the funding source.
3 D. The Ground Lease is attached hereto in unexecuted form as Exhibit A
4 solely to allow the Parties to agree to the form of the Ground Lease, which may be
5 modified solely as permitted by the Revenue Agreement prior to the Parties execution o
6 the Ground Lease. Through County Ordinance No. 2022-[ ], the
7 County's Director is authorized to enter into the Ground Lease, as may be modified
8 pursuant to the Revenue Agreement, upon the final issuance of all Governmental
9 Approvals necessary for the Project or Developer's facilities, following the exhaustion of
10 any appeals period or completion of any appeals as may be applicable.
11 E. Notwithstanding anything to the contrary in the Revenue Agreement, (i)
12 this Revenue Agreement is solely intended by the Parties to create a government
13 funding mechanism pursuant to section 15378 subdivision (b)(4) of Title 14 of the
14 California Code of Regulations; (ii) the government funding mechanism described
15 herein shall only become effective should Developer, at its sole cost and expense,
16 under a comprehensive Turnkey program, provide, develop, engineer, design,
17 construct, finance, install, implement, own, operate, and maintain Developer's Facilities
18 in accordance with the Revenue Agreement and Good Industry Practices, pursuant to
19 the requirements of all Authorizations, Governmental Approvals, and Applicable Laws
20 and Regulations; and (iii) the Revenue Agreement is not, and shall not be construed as,
21 a County approval for or commitment to the Project (other than the terms of the
22 Revenue Agreement) or Developer's Facilities.
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24 II. TERMS AND CONDITIONS FOR LANDFILL GAS TO ENERGY PROJECT
25 County or Developer individually may be referred to herein as a "Party" or
26 collectively may be referred to herein as the "Parties."
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1 All capitalized terms used below shall have the meaning set forth in Article 1
2 (Definitions), below. Other definitions not set forth in Article 1 are defined elsewhere in
3 the Revenue Agreement.
4 ARTICLE 1. DEFINITIONS:
5 1.1. "AADS" means that certain landfill operating as of the Effective Date
6 (defined in Section1.13 below), including County's LFG Management System located
7 thereon and therein, and any buildings, landscaping, and other improvements thereto
8 owned by County, and any future expansions thereof and any future changes thereto,
9 all of which is commonly known as the American Avenue Disposal Site (AADS),
10 receiving and containing Municipal Solid Waste, which is situated on that certain real
11 property at 18950 W. American Avenue, Kerman, California.
12 1.2. "Allotted LFG" means all LFG produced from the Landfill, except for the
13 LFG which County uses to keep the County LFG Management System in operation
14 pursuant to Section 5.1 (g). The County will deliver all Allotted Gas to the Transfer
15 Point, except in the event of Force Majeure or ARTICLE 5 (LANDFILL OPERATION).
16 County warrants and represents to Developer that County owns, and has the right to
17 sell the Allotted LFG unencumbered by any liens, or rights of any third parties.
18 Notwithstanding anything to the contrary in the Revenue Agreement, Developer
19 understands and agrees that the amounts of Allotted LFG may, from time to time vary,
20 be suspended, resume, or cease, depending on a variety of circumstances that may or
21 may not be under the control of County, including by way of example, County's
22 balancing of Wells, or transmission of LFG to County's flares in order for such flares to
23 maintain their operability and efficiency, and compliance with all Authorizations,
24 Governmental Approvals, and Applicable Laws and Regulations, all of which shall be as
25 determined by County in its absolute and sole discretion. Developer acknowledges and
26 agrees that County does not make any representations or warranties, express or
27 implied, concerning the Allotted LFG sold by County and purchased by Developer
28 herein, including, without limitation, the content, quantity, or quality of Allotted LFG
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1 (including therein the content, quality, or quantity of methane gas and the content of
2 other constitutes), and that County does not make any warranty of fitness for a
3 particular purpose or of merchantability, express or implied with respect to same.
4 1.3. "Applicable Laws and Regulations" means any and all applicable, then-
5 current federal, state, County, and local laws, statutes, rules, regulations, charter
6 provisions (County only), ordinances (including zoning ordinances), and guidelines (to
7 the extent that such guidelines have the legal effect of being mandatory), including,
8 without limitation, with respect to the Landfill, County's LFG Management System,
9 Developer's Facilities, the Work, Hazardous Materials, and the transactions
10 contemplated under the Revenue Agreement, and any and all applicable judgments,
11 orders, rulings, decisions, decrees, directives, or similar determinations and actions with
12 respect to any and all of the foregoing by any Governmental Enforcement Agencies
13 (including, without limitation, executive, legislative, or administrative authorities), and/or
14 any courts. Notwithstanding any references in the foregoing definition of "Applicable
15 Laws and Regulations"or its use (generally or the use of a specific Applicable Law and
16 Regulation) elsewhere in the Revenue Agreement, (i) "Applicable Laws and
17 Regulations"means that, according to the provisions of such Applicable Laws and
18 Regulations, or any relevant judicial interpretations thereof, such Applicable Laws and
19 Regulations require compliance therewith, except only to the extent of any exemptions
20 therefrom that may be allowed according to the provisions of such Applicable Laws and
21 Regulations by any Governmental Enforcement Agency, or according to any relevant
22 judicial interpretations thereof, (ii) "then-current" as provided in the foregoing definition
23 of "Applicable Laws and Regulations"means any and all such Applicable Laws and
24 Regulations that are in effect (including any and all Applicable Laws and Regulations
25 that later become enacted, adopted, or amended, and as they have later been
26 interpreted by any relevant judicial decisions, subsequent to the Effective Date) at the
27 time of their consideration, and (iii) any citation to, or statement or summary, in the
28 Revenue Agreement or Ground Lease of any of the provisions of any specific
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1 Applicable Laws and Regulations, as they may exist as of the Effective Date, shall not
2 be a limitation on the application of the foregoing definition of "Applicable Laws and
3 Regulations" with respect to such specific Applicable Laws and Regulations.
4 1.4. "Authorizations" means any and all applicable authorizations, approvals,
5 permits, licenses, certificates and certifications, agreements, consents, rights of way,
6 easements, waivers, and variances from any third party, including any person, or entity,
7 including, further, any governmental entity, necessary or required for either of the
8 Parties, as applicable, to perform its respective obligations under the Revenue
9 Agreement, or for the transactions contemplated thereby, all of which shall be subject
10 always to any and all Governmental Approvals and Applicable Laws and Regulations,
11 and to Developer's obligations under the Revenue Agreement.
12 1.5. "BTU" means a British thermal unit, which is further defined as a unit of
13 energy equal to the amount of heat required to raise one pound of air-free water one (1)
14 degree Fahrenheit at a constant pressure of one standard atmosphere.
15 1.6. "BTU to Therm Conversion Factor" is equal to 0.01 Therms / SCF @
16 100% methane.
17 1.7. "County's LFG Management System"means and consists of any and
18 all County Wells, systems for capturing and transmitting Allotted LFG, equipment,
19 including, but not limited to, blowers, pipelines, the Throttle Valve, valves, flares,
20 electronic data processing equipment, fixtures for management and capture of such
21 Allotted LFG for County's availability thereof at the Transfer Point, and/or transmission
22 to any County flares for combustion, the Flow Meters and LFG Analyzers installed by
23 the County at the Transfer Point, and any later acquired and/or constructed items
24 installed by or for County at the Landfill.
25 1.8. "Day"or "Days"means a day or days that County administrative offices
26 are open for business to the public.
27 1.9. "Developer"means Toro Energy of California AA, LLC.
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1 1.10. "Developer's Facilities" means and consists of (1) any and all of
2 Developer's facilities to receive the Allotted LFG from the Transfer Point to the LFG
3 processing and/or LFG purifying equipment at the Landfill; (2) any and all of Developer's
4 LFG processing and/or LFG purifying equipment; (3) any and all of Developer's safety
5 apparatuses, including without limitation, any flame arrestors; and (4) any other facilities
6 of the Developer installed, owned or operated by Developer, wherever located,
7 including gas pipeline lateral required to transmit purified LFG from AADS.
8 1.11. "Director"means the County's Director of Public Works and Planning, or,
9 if there is no office of County's Director of Public Works and Planning, the County officer
10 who assumes the duties of the County's Director of Public Works and Planning.
11 1.12. "Dispute" means any dispute, disagreement, or controversy between the
12 Parties arising under the Revenue Agreement, the Ground Lease, and/or any other
13 agreement that may be entered into by and between the Parties with respect to the
14 Revenue Agreement, or in connection with the transactions contemplated in the
15 Revenue Agreement, the Ground Lease, and/or any such other agreement.
16 1.13. "Effective Date" means approval of an ordinance by the Board of
17 Supervisors pursuant to Government Code 25515 et seq. and the ordinance's effective
18 date approving the Revenue Agreement.
19 1.14. "Equity" means the monetary contribution made by investors in the
20 Project.
21 1.15. "Exhibits to Revenue Agreement"means Exhibits to this Revenue
22 Agreement and any amendments to the Revenue Agreement whether by addition of
23 Exhibits or amendments to text of the Revenue Agreement. The term Revenue
24 Agreement shall refer only to this agreement and is hereby designated the "Revenue
25 Agreement."
26 1.16. "Good Industry Practices"means any of the prudent practices, methods
27 or acts by the appropriate, qualified, skilled, and experienced personnel, under similar
28 circumstances for similar projects in California, who, in the exercise of reasonable
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1 judgment in light of all of the relevant facts known to them, or all of relevant facts that
2 should have been known to them in their exercise of diligent investigation, at the time
3 their decision was made, reasonably would have been expected to accomplish the
4 desired result in a good and workmanlike manner consistent with reliability, safety,
5 expedition, and subject always to compliance with the requirements of all Governmental
6 Approvals and Applicable Laws and Regulations. The term "Good Industry Practices"is
7 not intended to be limited to one practice or method to the exclusion of others; provided,
8 however, all such practices or methods shall qualify under this definition of the term.
9 1.17. "Governmental Approvals"means any and all applicable approvals,
10 authorizations, permits (including encroachments and conditional use permits if required
11 by the County), licenses, certificates and certifications, consents, rights of way,
12 easements, waivers, granted exemptions, variances, from any governmental entity,
13 including any Governmental Enforcement Agency, for which the Developer is obligated
14 to perform under the Revenue Agreement or the Ground Lease, or for the transactions
15 contemplated thereby, including, by way of example, and not as a limitation, the
16 following, as applicable: (a) any permits, licenses, approvals, or authorizations that
17 County is required to obtain from Governmental Enforcement Agencies, and maintain,
18 for the operation of the Landfill, including County's LFG Management System; and (b)
19 any permits, licenses, approvals, authorizations, or land use clearances, including
20 approval of associated timely compliance required under Article 7 (CEQA Compliance),
21 that Developer is required to obtain from such Government Enforcement Agencies, and
22 maintain, in order to provide, develop, engineer, design, construct, finance, install,
23 implement, own, operate, and maintain Developer's Facilities pursuant to the Revenue
24 Agreement and the Ground Lease. "Governmental Approvals"for Hazardous Materials
25 includes, without limitation, any and all applicable approvals, authorizations, permits,
26 licenses, certificates and certifications, consents, or waivers from the United States
27 Environmental Protection Agency, or any state or local Governmental Enforcement
28 Agency for the generation, handling, receipt, use, storage, treatment, transportation,
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1 clean up the environment, disposal, detection, removal, protection, and/or containment,
2 with respect to Hazardous Materials. Governmental Approvals shall include compliance
3 with Article 7 (CEQA Compliance) which shall include the Ground Lease that shall only
4 become a binding and enforceable obligation when such CEQA compliance is final and
5 non-appealable.
6 1.18. "Governmental Enforcement Agency"means any and all federal, state,
7 or local governmental authorities or public agencies (including the County, whether
8 acting in its own capacity or in some other capacity, including, without limitation, in its
9 capacity as an agent or agency for another Governmental Enforcement Agency), also
10 including their respective boards, commissions, officers, departments, divisions,
11 agencies, and agents, having regulatory or oversight jurisdiction with respect to the
12 matters in the Revenue Agreement or the Ground Lease, and including, but not limited
13 to, enforcement of compliance with respect to any Governmental Approvals, Applicable
14 Laws and Regulations, and/or Hazardous Materials. By way of example, and not as a
15 limitation, the following governmental entities or agencies, including their respective
16 successors, shall be deemed to be a "Governmental Enforcement Agency:"the United
17 States Environmental Protection Agency; the California Regional Water Quality Control
18 Board; the San Joaquin Valley Air Pollution Control District; the California Department o
19 Resources Recycling and Recovery, which also is known as "CalRecycle;" the Fresno
20 County Environmental Health Department, both in its capacity as a County department
21 and as the local enforcement agency for CalRecycle and the Development Services
22 Division of the Department of Public Works and Planning.
23 1.19. "Hazardous Materials" means any and all substances, materials, or
24 waste, at any concentration, that is or later becomes regulated at any time by any
25 Governmental Enforcement Agency including, without limitation, any material or
26 substance, which, as applicable, is (i) defined as a "hazardous waste," "extremely
27 hazardous waste," or "restricted hazardous waste" under California Health and Safety
28 Code §§ 25115, 25117, or 25122.7, or listed pursuant to California Health and Safety
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1 Code § 25140, (ii) defined as a "hazardous substance" under California Health and
2 Safety Code § 25316, (iii) defined as a "hazardous material," "hazardous substance," or
3 "hazardous waste" under California Health and Safety Code § 25501, (iv) defined as a
4 "hazardous substance" under California Health and Safety Code § 25281, (v) petroleum
5 products, (vi) friable asbestos, (vii) polychlorinated byphenyls ("PCBs") and/or
6 substances or compounds containing PCBs, (viii) listed under Article 9 or defined as
7 "hazardous" or "extremely hazardous" under Article 11 of Title 22, California
8 Administrative Code, (ix) designated as "hazardous substances" pursuant to § 311 of
9 the Clean Water Act (33 United States Code §1317), (x) defined as a "hazardous waste"
10 pursuant to § 1004 of the Resource Conservation and Recovery Act (also known as
11 "RCRA;" 42 United States Code §6901 et seq.), (xi) defined as "hazardous substances"
12 pursuant to § 101 of the Comprehensive Environmental Response, Compensation, and
13 Liability Act (also known as "CERCLA," 42 United States Code §9601, et seq.), a
14 substance regulated by the Toxic Substances Control Act (15 United States Code §§
15 2601 et seq. ), or (xii) radioactive material, including any source, special nuclear, or
16 byproduct material as defined in 42 United States Code §§ 2011-2296b-7.
17 1.20. "Landfill"means the AADS for the Revenue Agreement and the Ground
18 Lease.
19 1.21. "Landfill Permitted Area" means that certain area described within
20 Exhibit B for AADS (also referred to as the AADS Site Plan).
21 1.22. "LFG" means Landfill Gas which is any and all raw gas that consists
22 primarily of methane, carbon dioxide, hydrogen, oxygen and includes other
23 components, all of which is produced from decomposing Municipal Solid Waste within
24 the Landfill.
25 1.23. "Module"means an engineered area for storing Municipal Solid Waste at
26 the Landfill.
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1 1.24. "Municipal Solid Waste"means any and all garbage, rubbish, refuse,
2 green waste, and other materials and substances discarded at the Landfill, other than
3 Hazardous Materials, sewage, and sludge.
4 1.25. "Net Proceeds" means all Income received by Developer from
5 Renewable Natural Gas (RNG) produced by the processing of Allotted LFG ("gross
6 sales") less (1) Project Finance Payments; (2) costs to maintain the County's LFG
7 Management System, not to exceed $300,000 per year plus a CPI adjustment based
8 upon the San Francisco Area CPI every five years, beginning with the month of the
9 Operations Date, not to exceed 3% for each five year adjustment (the "CPI
10 Adjustment"); and (3) Developer's equipment costs to operate and maintain the Project
11 equipment, which shall not include Project management costs (which management
12 costs include labor costs), any working capital costs or loans, and any other overhead
13 costs incurred by Developer, including but not limited to, Articles 9 (Costs, Expenses,
14 Governmental Charges and Taxes) and 17 (Startup; Commissioning; Performance
15 Testing Final Approval). The gross sales by Developer, in its discretion, is based on
16 market driven revenues derived from (1) gross sales of RNG to utilities such as PG&E
17 City Gate; (2) gross sales of RIN ("renewable identification number") credits such as to
18 petroleum refiners and marketers such as Chevron, Valero and other refiners; and/or (3)
19 gross sales of Low Carbon Fuel Standard ("LCFS") credits such as to oil refiners and
20 fuel marketers; and (4) any other sales in markets developed during the Term of the
21 Revenue Agreement.
22 1.26. "Operations Date"means the date of the first commercial operations
23 date to occur when Developer receives LFG at the Transfer Point under the Revenue
24 Agreement.
25 1.27. "Premises"means the real property described in the Ground Lease,
26 including Exhibits 1 and 2 as described in section 3 (Description of Ground Lease
27 Premises) of the Ground Lease.
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1 1.28. "Project"means the Landfill Gas to Energy Project and all related
2 agreements including this Revenue Agreement, the Ground Lease, necessary permits
3 and authorizations, legal descriptions of property, equipment and facilities of whatever
4 nature and kind, fixtures, financing instruments (if any), and all related exhibits
5 necessary for the implementation, construction and operation of the Project (collectively,
6 referred to as the "Project", the "Allotted LFG-to-Energy Project Plan" or "LFGTE Project
7 Plan").
8 1.29. "Project Finance Payments" means the sum of (1) any debt payment for
9 which the Developer is obligated to pay back principal and interest to a third party
10 lender not affiliated with the Developer which provides a loan, not to exceed ten (10)
11 years in duration at an interest rate negotiated by the Developer not to exceed ten
12 percent (10%), used to finance a portion of the Project Implementation Costs; and (2)
13 scheduled payments for which the Developer is obligated to pay back Equity, not to
14 exceed 5 years for any such debt or loan initially incurred by Developer, at an interest
15 rate not to exceed 10% that was funded by the Equity providers to finance all or a
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portion of the Project Implementation Costs not covered by debt from the third party
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lender. Developer shall provide County, at Developer's cost from the date of the Equity
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pay back agreement or loan, as applicable, and the commencement of any debt
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20 payment schedule from a third party lender, with a written accounting, at least semi-
21 annually, of the pay back status to the Equity providers and third party lender loan
22 referenced above. County shall have no obligation or responsibility whatsoever for any
23 Project Finance Payments, or any other debts or financial obligations incurred by the
24 Developer.
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1.30. "Project Implementation Costs" All costs incurred by Developer for which
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the Developer is obligated prior to Final Approval in Section 17.2.
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1 1.31. "Remittance of Net Proceeds"means 50% of the Net Proceeds until the
2 Project Finance Payments have been paid by the Developer. After Project Finance
3 Payments have been paid by the Developer, Remittance of Net Proceeds will be 51%
4 for the remaining Term of the Revenue Agreement.
5 1.32. "Remittance of Net Proceeds Payment"means the payment of the Net
6 Proceeds from the Developer to County which shall be made within 30 Days after the
7 end of each Calendar Quarter. Developer shall not accept payment in kind or defer
8 receipt of payment. Failure to make payment shall accrue interest at the rate of 2% plus
9 the prime rate of interest as published in the Wall Street Journal. Developer shall
10 submit, together with the payment, quarterly financial statements and all documentation
11 provided by or to the Developer regarding the Net Proceeds determination. Developer
12 acknowledges and agrees that its obligations to pay amounts due to County are
13 absolute and unconditional, and are not subject to any defenses, setoffs, abatement,
14 diminution, deduction, or counterclaims that it may have against County, regardless of
15 whether or not County has breached any of its obligations under the Revenue
16 Agreement, or whether or not the Parties are attempting to resolve a dispute regarding
17 same under Article 36 herein.
18 1.33. "Standard Cubic Foot (SCF)" is a measure of quantity of gas, equal to a
19 cubic foot of volume at 60 degrees Fahrenheit at 14.696 pounds per square inch (1
20 atmosphere).
21 1.34. "Therm"equals 100,000 British thermal units.
22 1.35. "Throttle Valve"means the valve that is part of the County's LFG
23 Management System, near the Transfer Point, which the County will use to control the
24 Allotted LFG before it may reach the Transfer Point.
25 1.36. "Transfer Point"Transfer Point means the location as set forth in Article
26 20.
27 1.37. "Turnkey"means Developer's Facilities, which is fully constructed
28 according to the Approved Plans and Specifications, and is fully tested and
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1 commissioned, and final approval thereof has been obtained from County pursuant to
2 Article 17.
3 1.38. "Utilities"means utilities services that are to be provided by third parties
4 to the Premises, including Developer's Facilities, including, but not limited to, telephone
5 and data services (including further computer, cable, and Internet services), electrical,
6 gas, water and sewer, and trash and refuse disposal service including provision of a
7 trash dumpster or compactor, and any other municipal utilities commonly provided to
8 commercial operations similar to Developer's Facilities.
9 1.39. "Wells" (or singularly, "Well') mean, as applicable, horizontal wells of
10 varying length and distances from each other, and vertical wells of varying depths and
11 distances from each other, as determined by County, which are installed by or for
12 County in or around the Landfill for County's capture of Allotted LFG and transmission
13 to pipes within County's LFG Management System.
14 1.40. "Work" means the Developer's work as defined in Article 13.
15 ARTICLE 2. PURPOSE
16 2.1. Purpose of the Revenue Agreement. Subject to Developer's
17 compliance with Article 7 (which shall precede the Parties entering into the Ground
18 Lease), the purpose of the Revenue Agreement , is that, if Developer, under a
19 comprehensive Turnkey program, provides, develops, engineers, designs, constructs,
20 finances, installs, implements, owns, operates, and maintains Developer's Facilities in
21 accordance with Good Industry Practices, pursuant to the requirements of all
22 Authorizations, Governmental Approvals, and Applicable Laws and Regulations, all of
23 which shall be at Developer's sole cost and expense, including Project Finance
24 Payments, then County and Developer will both benefit from the use by Developer's
25 Facilities of Allotted LFG as follows:
26 (a) If developed, Developer's Facilities will promote beneficial use of
27 Allotted LFG made available by County to Developer.
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1 (b) If developed, Developer's Facilities will generate economic benefits
2 to County in the form of compensation pursuant to the Remittance of Net Proceeds
3 Payment, that are specifically monetized, based on County's availability of Allotted LFG
4 to Developer.
5 (c) Developer shall develop, engineer, design, construct, finance,
6 install, implement, own, operate, and maintain the Developer's Facilities, under the
7 Revenue Agreement, in accordance with the Revenue Agreement and Good Industry
8 Practices, pursuant to the requirements of all Authorizations, Governmental Approvals,
9 and Applicable Laws and Regulations, taking into account, among other matters, the
10 health and safety of persons working on or about the Landfill and the healthfulness and
11 safety of the environment generally, all of which shall be at Developer's sole cost and
12 expense.
13 (d) Subject always to County's primary purpose as a public agency
14 which operates the Landfill pursuant to its own requirements of all Authorizations,
15 Governmental Approvals, and Applicable Laws and Regulations, the Developer's rights
16 and the needs of the Developer's Facilities, including Developer's purchase of Allotted
17 LFG herein, shall always be and remain secondary, and therefore subject to the
18 Landfill's operations and compliance with its own Authorizations, Governmental
19 Approvals, and Applicable Laws and Regulations. By way of example, and not as a
20 limitation, Developer's Facilities shall not cause or increase the risk of, sub-surface fires
21 in the Landfill, sub-surface migration of LFG in the Landfill, or surface emissions of LFG
22 from the Landfill, in any such case that would cause the County, including the Landfill,
23 and the County's LFG Management System, to be in violation of its own requirements o
24 Authorizations, Governmental Approvals, and Applicable Laws and Regulations.
25 2.2. Exhibits. The Revenue Agreement incorporates Exhibit A — proposed
26 form of Ground Lease and Exhibit B —AADS Site Plan.
27 ARTICLE 3. TERM OF REVENUE AGREEMENT; DEADLINES
28 3.1. Conditions Precedent to Effective Date.
16
1 3.1.1. Conditions Precedent to Revenue Agreement
2 Before the Revenue Agreement becomes an enforceable and binding agreement
3 upon the Parties, the following conditions precedent shall have been completed as
4 follows:
5 (a) The Parties' execution of the Revenue Agreement; and
6 (b) The Effective Date of the ordinance commences as set forth in
7 Section 1.13.
8 3.1.2. Conditions Precedent to the Ground Lease
9 Before the Ground Lease becomes an enforceable and binding agreement upon
10 the Parties, the conditions precedent shall have been completed as follows:
11 (a) Negotiation and County approval of the schedule for the
12 Developer's compliance with the California Environmental Quality Act (CEQA) and, if
13 necessary, National Environmental Policy Act (NEPA) (collectively, the CEQA
14 Compliance Schedule) pursuant to Article 7, which CEQA Compliance Schedule shall
15 include a detailed timeline, including a critical path and milestones for activities
16 necessary to achieve such compliance, and the Developer shall commence, proceed,
17 and complete all requirements of Article 7 in strict accordance with the CEQA
18 Compliance Schedule.
19 (b) Approval by the County in compliance with Article 7 which shall be
20 final and not subject to appeal.
21 (c) Negotiation and agreement to the Allotted LFG-to-Energy Project
22 Plan pursuant to Article 6.
23 (d) Negotiation and final approval of the Project Schedule under
24 section 15.2.
25 (e) Negotiation and final approval of the Plans and Specifications
26 under section 15.8.
27 (f) Negotiation and final approval of the Coordination Protocols under
28 Article 26.
17
1 (g) If necessary, as determined by the County, final and non-
2 appealable approval of a conditional use permit.
3 (h) If necessary, as determined by the County, final and non-
4 appealable approval of an encroachment permit.
5 (i) The execution of the Ground Lease by Developer and the County's
6 Director, or designee.
7 0) Delivery, by the Developer to the County, of executed certificates of
8 insurance and endorsements to the County pursuant to Section 34.4.
9 3.1.3. Failure to Timely Meet Conditions
10 Failure to proceed with due diligence to completion of the conditions precedent
11 described in this section 3.1 (inclusive of 3.1.1 and 3.1.2) above for either the Revenue
12 Agreement or the Ground Lease within one (1) year after the Effective Date of the
13 Revenue Agreement, unless extended in writing due to factually supported unforeseen
14 circumstances by the Parties, shall entitle the County to terminate the Revenue
15 Agreement and the Ground Lease. The Developer shall have no recourse or rights
16 under the Revenue Agreement and the Ground Lease and it shall have no recourse or
17 right to recover costs of any kind incurred by the Developer from the County.
18 3.2. Term of Revenue Agreement. The Revenue Agreement shall
19 commence upon the Effective Date and shall continue in full force and effect, in
20 accordance with all of its terms and conditions, for a period of twenty-five (25) years
21 from the Operations Date (the "Term"), unless the Revenue Agreement is terminated
22 before the Term. Notwithstanding anything to the contrary in the Revenue Agreement,
23 either Party's obligation which should have been performed, subject to excuse from
24 performance due to Events of Default (Article 37) and Remedies Upon Default (Article
25 38), prior to the termination date or expiration of the Term shall be performed. Whether
26 terminated before the Term or when the Term expires, the Developer shall comply with
27 Section 4.2.
28 ARTICLE 4. TERMINATION OF REVENUE AGREEMENT
18
1 4.1. Termination of Revenue Agreement. Provided the conditions precedent
2 are completed as set forth in Section 3.1, the Revenue Agreement shall terminate upon
3 the occurrence any one or more of the following:
4 (a) Upon the expiration of the Term as set forth in Section 3.2; or
5 (b) At the option of County or Developer, as applicable, following the
6 occurrence of one of the following events:
7 (i) By County, upon the occurrence and continuance of an
8 Event of Default by Developer, pursuant to the terms and conditions of Sections 37.1 or
9 37.2 of Article 37 (Events of Default); or
10 (ii) By Developer, upon the occurrence and continuance of an
11 Event of Default by County, pursuant to the terms and conditions of Section 37.1 of
12 Article 37 (Events of Default); or
13 (c) Failure of the Developer to diligently pursue and process any and
14 all Authorizations and/or to complete the CEQA Compliance Schedule, after execution
15 of the Revenue Agreement and the Project Schedule after execution of the Ground
16 Lease pursuant to the terms and conditions of Article 37 (Events of Default). In
17 connection with such termination, the County shall have the right to immediately
18 negotiate and subsequently to enter into a Revenue Agreement and Ground Lease with
19 other entities in order to mitigate its damages without interference by Developer. In the
20 event of such termination, Developer shall remove any of its equipment or facilities or,
21 upon failure to do so, the County may assign, remove, store, sell or dispose of
22 Developer's Facilities, subject to any prior security agreement and/or financing
23 statement, if Developer declines to take possession within thirty (30) days of such
24 removal; or
25 (d) Failure of Developer or Developer's customer to accept Allotted
26 LFG for a continuous period of six months, which shall result in an automatic
27 termination of the Revenue Agreement and Ground Lease.
28
19
1 4.2. Full Restoration of Premises. Upon termination of the Revenue
2 Agreement and, if applicable, the Ground Lease, Developer, at its sole cost and
3 expense, shall promptly tear down and remove Developer's Facilities, including any
4 other property of Developer, from the Premises as described in Exhibit A, section 3
5 (Description of Ground Lease Premises) and shall:
6 (a) Upon giving County at least thirty (30) Days' notice, safely
7 disconnect Developer's Facilities from the Transfer Point;
8 (b) Fully restore the Transfer Point and Premises to their conditions
9 immediately prior to the Effective Date, and remove all debris, rubbish and waste
10 materials from the Premises, all subject to and in accordance with all Good Industry
11 Practices, pursuant to the requirements of all Authorizations, Governmental Approvals,
12 and Applicable Laws and Regulations;
13 (c) Repair or replace, using new materials, and in a good and
14 workmanlike manner, any damage to the Landfill, including County's LFG Management
15 System that might be caused by such disconnection and restoration. All such
16 disconnection and restoration shall be concluded within one hundred eighty (180)
17 calendar days of the date of termination of the Revenue Agreement, unless a shorter
18 time is otherwise required by any Authorizations, Governmental Approvals, or
19 Applicable Laws and Regulations, in which case such shorter time shall apply; and
20 (d) As provided in Section 32.3, restore the environmental condition of
21 the Premises to its condition as it existed as of the Effective Date, and perform all
22 obligations under Section 32.3, herein with respect to the confirming the environmental
23 condition of the Premises.
24 ARTICLE 5. LANDFILL OPERATION
25 5.1. County's LFG Management. During the Term, according to County's
26 own timing and needs, subject to Developer's compliance with Article 7, which shall
27 precede the Parties entering into the Ground Lease, and to the Parties entering into the
28
20
1 Ground Lease, County shall have the sole and absolute right, in its sole discretion, for
2 determining and taking action on any or all of the following:
3 (a) If, when, where, and the extent to which LFG capture may be
4 commenced, made, suspended, resumed, or ceased at any or all current Modules,
5 including a system in place for capturing LFG and/or future Modules (but only when the
6 future Modules later become Modules, and, have a system in place for capturing LFG);
7 (b) If, when, and the extent to which there will be Allotted LFG
8 available by County at the Transfer Point for sale to Developer;
9 (c) If, when, and the extent to which LFG is captured by County's LFG
10 Management System, and will be transported to one or more flares that are part of
11 County's LFG Management System for combustion of such LFG, in order to allow
12 County to (i) comply with all Authorizations, Governmental Approvals, and Applicable
13 Laws and Regulations with respect to the Landfill, (ii) maintain the operability of the
14 flares that are part of the County's LFG Management System, or (iii) take such other
15 action that County otherwise determines is for the best interest of the operation of the
16 Landfill;
17 (d) The concentration of methane and/or oxygen within any LFG that is
18 generated by the Landfill; however, County will make a reasonable effort based on LFG
19 collection and control system best management practices as of 2021, but not have an
20 obligation pursuant to section 5.6(c), to deliver Landfill gas (LFG) consisting of 45-50%
21 methane and 0.5% 02;
22 (e) Balancing the LFG in or among the Landfill's Wells (either
23 individually for each of the Wells or collectively for some or all of the Wells);
24 (f) If, when, and the extent to which any or all items stated in (a)
25 through and (e), immediately above, shall be maintained, changed, or suspended,
26 resumed, or cease, in order for County, including the Landfill and County's LFG
27 Management System, to achieve compliance with, or to remain in compliance with, all
28
21
1 applicable Authorizations, Governmental Approvals, and Applicable Laws and
2 Regulations; and
3 (g) The County will retain the minimum flow necessary to keep the
4 County's LFG Management System in operation to burn excess gas and to burn
5 condensate as necessary.
6 (h) Developer will pay up to $150,000 per year, plus the CPI
7 Adjustment for (1) a dedicated landfill gas technician to be contracted by County and
8 operate at County's instruction to manage the LFG Management System daily (Monday-
9 Friday as determined by the County) and (2) to perform above ground repairs and
10 maintenance for the purpose of maintaining system functionality, enhancing methane or
11 minimizing oxygen content of LFG at such effort as determined by the County. This
12 payment will be part of the $300,000 payment referenced in Section 1.25 Net Proceeds,
13 costs to maintain the County's LFG Management System.
14 5.2. No County Obligation to Store LFG. County is not obligated to store
15 any LFG that County may capture from the Landfill.
16 5.3. County's Operation of Landfill. County has the sole right and
17 responsibility for the operation (including monitoring the migration of LFG), repair, and
18 maintenance of the Landfill, including County's LFG Management System, except that,
19 subject to Developer's compliance with Article 7, which shall precede the Parties
20 entering into the Ground Lease, and to the Parties entering into the Ground Lease, (1)
21 Developer, at its sole cost and expense, shall be solely responsible for the repair or
22 replacement of any portion of the Landfill, including County's LFG Management System,
23 that is damaged by the acts or omissions of Developer, regardless of whether such acts
24 or omissions were intentional or grossly negligent; (2) Developer, at its sole cost and
25 expense, shall be solely responsible for any damage or loss arising out of any wrongful
26 act or omission, including a grossly negligent act or omission of Developer, with respect
27 to the Landfill (including County's LFG Management System), or for any breach or
28 default of the Revenue Agreement by Developer; and (3) Developer shall be solely
22
1 responsible for complying with Article 8 to ensure County's ability to comply with this
2 Section 5.3.
3 5.4. County Responsibility for Damage. Except as otherwise expressly
4 stated in this Section 5.4, subject to Developer's compliance with Article 7, which shall
5 precede the Parties entering into the Ground Lease, and to the Parties entering into the
6 Ground Lease, County shall be liable and pay Developer for the replacement cost, or
7 cost of repairs, for any damage or loss to the Developer's Facilities, and all of
8 Developer's property located at the Premises, caused by the gross negligence or
9 wrongful acts or omissions of County or its officers, employees, contractors,
10 consultants, or agents up to a maximum of the replacement cost as depreciated or
11 actual costs of repairs after the County and Developer have met and conferred upon
12 such expenditures.
13 Notwithstanding anything to the contrary in the Revenue Agreement, County's
14 right to balance LFG in or among the Landfill's Wells (either individually for each of the
15 Wells or collectively for some or all of the Wells), Landfill operation pursuant to Article 5
16 shall take priority at all times over Developer's rights under the Revenue Agreement,
17 and County may take (or refrain from taking) any and all actions, as it deems necessary
18 or appropriate in its sole and absolute discretion, under the circumstances, in its
19 performance of such LFG balance.
20 5.5. Landfill Modifications. Subject to Developer's compliance with Article 7,
21 which shall precede the Parties entering into the Ground Lease, and to the Parties
22 entering into the Ground Lease, Developer acknowledges that, during the Term of the
23 Revenue Agreement:
24 (a) At least thirty (30) Days prior to the expected date of Developer's
25 testing and commissioning of the Developer's Facilities:
26 (i) The Parties shall meet and confer and establish a mutually-
27 agreeable date for Developer to commence its operations to receive Landfill Gas (LFG);
28
23
1 (ii) County will modify the County's LFG Management System,
2 in accordance with Governmental Approvals, at or near County's side of the Transfer
3 Point so that the County's LFG Management System slopes at an appropriate grade, as
4 determined by County, toward County's LFG Management System causing LFG
5 condensate occurring in County's LFG Management System to substantially remain in
6 County's LFG Management System; provided, however, Developer acknowledges and
7 agrees that such grading will not be able to eliminate all LFG condensate occurring in
8 Developer's Facilities; and
9 (iii) Developer will modify the Developer's Facilities, in
10 accordance with Governmental Approvals, at or near Developer's side of the Transfer
11 Point, so that the header that is part of the Developer's Facilities slopes at an
12 appropriate grade, as determined by County, toward the Developer's Facilities causing
13 LFG condensate occurring in the Developer's Facilities to substantially remain in the
14 Developer's Facilities.
15 Any such LFG condensate occurring in County's LFG Management System shall
16 be captured by County using a capturing system, which is appropriately installed by
17 County, and disposed of by County, all in accordance with all Good Industry Practices,
18 pursuant to the requirements of all Authorizations, Governmental Approvals, and
19 Applicable Laws and Regulations.
20 Any such LFG condensate occurring in the Developer's Facilities shall be
21 captured by Developer using a capturing system, which is appropriately installed by
22 Developer, and disposed of by Developer all in accordance with all Good Industry
23 Practices, pursuant to the requirements of all Authorizations, Governmental Approvals,
24 and Applicable Laws and Regulations. Provided Developer does not add any
25 constituents to the condensate, County will allow Developer to dispose of condensate in
26 County's flare. If condensate is unable to be flared, Developer shall dispose of its
27 condensate at its sole expense.
28
24
1 (b) From time to time, County may, according to County's own timing
2 and needs, modify, alter, improve, or expand some or all of the Landfill, including
3 constructing future Modules, to meet County's own operational needs. Such
4 modifications, alterations, improvements and expansion shall not alter in any way
5 whatsoever or affect the Parties' respective rights or obligations under the Revenue
6 Agreement; provided that Developer acknowledges and agrees that County, at its sole
7 cost and expense, may, after the Effective Date, construct and make operational any
8 additional facilities and equipment, including by way of example and not as a limitation,
9 additional flares, for the Landfill's increased operational needs, as determined by
10 County.
11 5.6. No Obligation by the County re Developer's Facilities. Notwithstanding
12 anything to the contrary in the Revenue Agreement, County shall not have any
13 obligation, with respect to Developer's Facilities, to:
14 (a) Refine, treat, condition, or remove unwanted components from the
15 Allotted LFG, or otherwise improve the quality of the Allotted LFG;
16 (b) Control, reduce the amount of, or remove siloxane or moisture from
17 Allotted LFG;
18 (c) Provide any minimum quantity or quality of Allotted LFG at any time
19 to Developer under the Revenue Agreement;
20 (d) Limit the amount of Allocated LFG at any time to Developer under
21 the Revenue Agreement;
22 (e) Certify, or provide any verification, to any third party, including, but
23 not limited to, any contractor, grantor of any grant to Developer, or Governmental
24 Enforcement Agency, whether the Developer's Facilities comply or will comply with any
25 Authorizations, Governmental Approvals, or Applicable Laws and Regulations, or the
26 requirements of the Revenue Agreement;
27
28
25
1 (f) Modify, alter, improve, upgrade, or enhance the Landfill, including
2 County's LFG Management System, and further including the operations and/or
3 performance of the Landfill, including County's LFG Management System;
4 (g) Construct and install new, or change the size, depth, or location of,
5 existing Wells for the County's LFG Management System;
6 (h) Expand the Landfill from its condition, or make operational any
7 Modules or any systems for capturing LFG which are not operational, as of the Effective
8 Date;
9 (i) Maximize or increase the capture of Allotted LFG, the draw rate of
10 Allotted LFG collected, the output of Allotted LFG at the Transfer Point, and/or the
11 efficiency of the County's LFG Management System;
12 0) Cease, minimize, or decrease the capture of Allotted LFG, the draw
13 rate of Allotted LFG collected, the output of Allotted LFG at the Transfer Point, and/or
14 the efficiency of the County's LFG Management System;
15 (k) Delete, lessen, supplement, amend, or modify any Authorizations
16 or Governmental Approvals required with respect to the Landfill, including the County's
17 LFG Management System;
18 (1) Seek or obtain, or assist Developer in seeking or obtaining, any
19 grants, Authorizations or Governmental Approvals for the Developer's Facilities,
20 including any Authorizations or Governmental Approvals for the Developer's Facilities
21 that, in turn, would require County to supplement, amend, or modify any Authorizations
22 or Governmental Approvals with respect to the Landfill, including the County's LFG
23 Management System to continue compliance with any Authorizations or Governmental
24 Approvals, or Applicable Laws and Regulations;
25 (m) Provide any materials, equipment, personnel, services, or
26 technology to Developer, other than expressly stated in the Revenue Agreement;
27 (n) Advance or provide any funds, reimburse any costs or expenses, or
28 provide any guarantees, or financial assurances to or for the benefit of Developer;
26
1 (o) Pay for or waive the costs of any permits, fees or charges, including
2 any permits that may be issued by County, or any tipping fees that County may charge
3 as the Landfill operator;
4 (p) Pay, reduce, or waive any County taxes, fees, or charges that
5 would be required in the Developer's performance of the Revenue Agreement;
6 (q) Pay, reduce, or waive any property taxes, including any penalties o
7 interest thereon, for which Developer may be liable with respect to Developer's
8 possessory interest of the Premises in connection with the Ground Lease; and/or
9 (r) Market, or otherwise assist Developer in selling, any product which
10 Developer produces from the Developer's Facilities.
11 ARTICLE 6. ALLOTTED LFG-TO-ENERGY PROJECT PLAN
12 6.1. Allotted LFG-to-Energy Project Plan. Prior to Developer preparing and
13 filing for all required permit applications and governmental approvals required to receive
14 Authority to Construct Developers Facilities, County and Developer will negotiate an
15 agreed upon Allotted LFG-to-Energy Project Plan. The Allotted LFG-to-Energy Project
16 Plan shall establish, for the Developer's Facilities, the type of technologies, and the
17 processes, equipment, and minimum performance criteria that have been designed by
18 Developer to achieve the purpose of the Revenue Agreement, which is set forth in
19 Section 2.1, in the most effective manner, under a comprehensive Turnkey program.
20 Without limiting the generality of the foregoing provisions in this Section 6.1, the Allotted
21 LFG-to-Energy Plan shall contain, at a minimum:
22 (a) Developer's specified technologies and equipment, including their
23 respective systems, processes, means, methods, techniques, sequences, and controls
24 for Developer's Facilities;
25 (b) The interrelationships of items in paragraph (a), immediately above,
26 with respect to the Developer's Facilities;
27
28
27
1 (c) Developer's process and instrument diagram illustrating all of the
2 items in paragraphs (a) and (b), immediately above, with respect to the Developer's
3 Facilities;
4 (d) The minimum performance criteria of the Developer's Facilities in
5 its completed and fully operational condition;
6 (e) All appropriate calculations for verifying the foregoing minimum
7 performance criteria in paragraph (d), immediately above, with respect to the
8 Developer's Facilities;
9 (f) The interface of operations, including the location of the Transfer
10 Point, between the Developer's Facilities and the County's LFG Management System to
11 ensure that Developer's Facilities do not interfere with the County's operation of the
12 Landfill, including County's LFG Management System, in accordance with the
13 requirements of all Authorizations, Governmental Approvals, and Applicable Laws and
14 Regulations.
15
16
17 County shall approve in writing the Allotted LFG-to-Energy Project Plan within 30
18 days of receipt by the County.
19 ARTICLE 7. CEQA COMPLIANCE
20 7.1. CEQA Compliance; NEPA Compliance Prior to the Ground Lease.
21 Before the Ground Lease becomes a binding and enforceable obligation upon the
22 Parties, the obligations of the Developer shall include the following:
23 (a) Developer shall develop, engineer, design, select, construct, install,
24 complete, and implement the Work, including Developer's Facilities and the operation
25 and maintenance thereof, and perform all of its other obligations under the Revenue
26 Agreement, all of which shall be at the Developer's sole cost and expense.
27 (b) All Work performed, or to be performed, by Developer, and any
28 Governmental Approvals obtained by Developer, shall comply with the California
28
1 Environmental Quality Act (California Public Resources Code, Division 13, §§ 21000 et
2 seq.), including the implementing CEQA Guidelines thereunder (Title 14, Division 6,
3 Chapter 3, California Code of Regulations, §§ 15000 et seq.) (collectively, the California
4 Environmental Quality Act, including such CEQA Guidelines thereunder, are "CEQA")
5 as well as the County's Regulations and Procedures for the Implementation of the
6 California Environmental Quality Act.
7 (c) Developer shall timely obtain from any and all Governmental Enforcement
8 Agencies approving Developer's Facilities, or any part thereof, contemplated under the
9 Revenue Agreement, their final, non-appealable approvals of the Developer's Facilities
10 (or, if such Governmental Enforcement Agency approval of Developer's Facilities is only
11 for a part thereof, then such approval shall be a final, non-appealable approval for that
12 part), pursuant to the requirements of CEQA; and (ii) Developer shall timely undertake
13 and complete any and all mitigation measures, including conducting a mitigation
14 monitoring program thereof, that may be imposed by any or all such Governmental
15 Agencies to minimize or avoid environmental impacts associated with the Developer's
16 Facilities contemplated under the Revenue Agreement.
17 (d) Developer shall pay for all costs associated with compliance with CEQA,
18 with the County's independent CEQA review and approval as the lead agency, and with
19 the preparation of all appropriate CEQA documents, including preparation of an initial
20 study draft and other CEQA documents as required by law. If required by the County's
21 Regulations and Procedures for the Implementation of the California Environmental
22 Quality Act, Developer shall enter into an agreement with the County to reimburse the
23 County for all costs associated with CEQA compliance, including without limitation those
24 costs incurred as a result of the County employing CEQA consultants or outside
25 counsel.
26 (e) Similarly, if Developer must comply with the National Environmental Policy
27 Act of 1969, as amended (NEPA; 42 U.S.C. section 4321 et seq.), Developer shall
28
29
1 comply with NEPA requirements, and any other state or federal environmental laws, at
2 its sole cost and expense.
3 For CEQA or NEPA compliance, or both, County shall have the right to approve
4 any environmental consultant proposed by the Developer for such compliance.
5 ARTICLE 8. NON-INTERFERENCE BY DEVELOPER'S FACILITIES
6 8.1. Developer's Duty Not to Interfere with Landfill. Subject to Developer's
7 compliance with Article 7, which shall precede the Parties entering into the Ground
8 Lease, and to the Parties entering into the Ground Lease, Developer shall provide,
9 develop, engineer, design, construct, finance, install, implement, own, operate, and
10 maintain Developer's Facilities, and obtain Authorizations, so that:
11 (a) Developer does not interfere with, disrupt, or adversely impact
12 County's operation, use, and/or closure or post closure activities of the Landfill, or any
13 part thereof, including, but not limited to the Landfill's, including County's LFG
14 Management System's, compliance with the requirements of Authorizations and/or
15 Governmental Approvals.
16 (b) Developer does not interfere with or adversely impact County's
17 ownership or operation of the Landfill, including, but not limited to the County's LFG
18 Management System.
19 Without limiting the generality of the foregoing provisions of this Section 8.1 ,
20 subject to Developer's compliance with Article 7, which shall precede the Parties
21 entering into the Ground Lease, and to the Parties entering into the Ground Lease,
22 Developer shall at all times cause Developer's provision, development, engineering,
23 design, construction, financing, installation, implementation, ownership, operation, and
24 maintenance of Developer's Facilities, and Authorizations for Developer's Facilities, to
25 comply with any and all of the following:
26 (a) Developer, including Developer's Facilities and Developer's
27 operation thereof, shall not do anything that would:
28
30
1 (i) Cause or contribute to the concentration of methane or other
2 gases (including oxygen) within any LFG that is generated by the Landfill to violate any
3 Authorizations, Governmental Approvals, and/or Applicable Laws and Regulations with
4 respect to the Landfill, including County's LFG Management System;
5 (ii) Cause or contribute to the pressure of any LFG that is
6 generated by the Landfill to violate any Authorizations, Governmental Approvals, and/or
7 Applicable Laws and Regulations with respect to the Landfill, including County's LFG
8 Management System;
9 (iii) Cause or contribute the Landfill, including County's LFG
10 Management System, to be unsafe for, or to pose a threat to the health or safety of,
11 persons working on our about the Landfill; and
12 (iv) Cause or contribute to the Landfill, including County's LFG
13 Management System, to violate, or be in substantial risk of violating, any Authorizations,
14 Governmental Approvals, and/or Applicable Laws and Regulations;
15 (b) Developer shall not seek or obtain any Authorizations or
16 Governmental Approvals that would cause or contribute to any of the items in paragraph
17 (a), including subparagraphs (i) through (iv), above;
18 (c) Developer shall not cause any shut down of Developer's Facilities
19 that would cause or contribute to any of the items in paragraph (a), including
20 subparagraphs (i) through (iv), and (b), above;
21 (d) Developer shall not authorize or allow any third parties to take any
22 actions that would cause or contribute to any of the item in paragraph (a), including
23 subparagraphs (i) through (iv), and (c), above;
24 (e) If, after the Effective Date, any Authorizations, Governmental
25 Approvals, and/or Applicable Laws and Regulations with respect to the Landfill,
26 including County's LFG Management System, change during the Term, such that
27 Developer's Facilities do not or will not comply with any Authorizations, Governmental
28 Approvals and/or Applicable Laws and Regulations, Developer shall immediately notify
31
1 the County, including subsequent updates of progress in writing and shall, at its sole
2 cost and expense, modify Developer's Facilities and/or its operations, and shall
3 supplement, amend, or modify any Authorizations and/or Governmental Approvals
4 required with respect to Developer's Facilities, so that Developer's Facilities and/or its
5 operations, comply with all Authorizations, Governmental Approvals and/or Applicable
6 Laws and Regulations;
7 (f) If any Authorizations, Governmental Approvals, and/or Applicable
8 Laws and Regulations with respect to the Landfill, including County's LFG Management
9 System, during the Term, apply to Developer, including Developer's Facilities, then
10 Developer shall, at its sole cost and expense, comply, and shall cause Developer's
11 Facilities to comply, with such applicable Authorizations and/or Governmental
12 Approvals; provided, however, nothing contained in this paragraph shall give Developer
13 the right to operate the Landfill, including County's LFG Management System, or require
14 County to change its operations of the Landfill, including County's LFG Management
15 System, or to delete, lessen, supplement, amend, or modify any Authorizations or
16 Governmental Approvals required with respect to the Landfill, including County's LFG
17 Management System; and
18 (g) Developer's Facilities shall not be constructed on any Module or in
19 the vicinity of a Module so that such construction or operation of Developer's Facilities
20 would directly interfere with County's operation of a Module.
21 8.2. Governmental Enforcement Agency. In addition to its obligations under
22 Section 8.1, above, upon receiving notice from County or any Governmental
23 Enforcement Agency of the occurrence of any event that would result in Developer's
24 violation of this Article 8, Developer shall give County prompt written notice thereof, and
25 take prompt remedial action to remedy any violation, giving County prompt written
26 notice of such remedial action, and when such Governmental Enforcement Agency is
27 satisfied that such remedial action is satisfactorily resolved. Developer acknowledges
28 that such notice shall be given by Developer to County even if County is the
32
1 Governmental Enforcement Agency, it being understood that the same County official
2 acting as Governmental Enforcement Agency may not be the same County official who
3 is responsible for operating the Landfill.
4 8.3. Responsibility for Governmental Enforcement Agency Action.
5 Developer shall be responsible, at its sole cost and expense, for any cost, expense,
6 loss, damage, fee, charge, fine, or penalty including interest on any of the foregoing, or
7 remedial action resulting to, or threatened against County, including the Landfill and
8 County's LFG Management System, by any Governmental Enforcement Agency with
9 respect to any actual or alleged violation by Developer of this Article 8, regardless of
10 whether County has given any approval with respect to Developer's Facilities, or has
11 accepted Developer's Facilities.
12 8.4. Survival. The provisions of this Article 8 shall survive the termination of
13 the Revenue Agreement.
14 ARTICLE 9. COSTS, EXPENSES AND GOVERNMENTAL CHARGES AND
15 TAXES
16 9.1. Costs, Expenses, Governmental Charges and Taxes. Developer, at its
17 sole cost and expense, shall be responsible for calculating, paying, when due, for any
18 and all labor, including prevailing wages as required by law, services, management,
19 supervision, materials, equipment, tools, goods, supplies, construction equipment and
20 machinery, transportation and other facilities and services necessary, and any and all
21 costs and expenses of any nature relating to or incidental to any or all of the foregoing,
22 relating to, arising out of, or in any manner connected with Developer's exercise of any
23 and all of Developer's rights, and/or performance of any and all of Developer's
24 obligations, under the Revenue Agreement and the Ground Lease, including by way of
25 example, and not as a limitation:
26 (a) Developer's performance and completion of the Work;
27 (b) Developer's payments to County for Allotted LFG;
28
33
1 (c) Developer's operation and maintenance of the Developer's
2 Facilities, except as limited and allowed in calculating Net Proceeds in Section 1.25;
3 (d) Governmental Approvals;
4 (e) Project Implementation costs; and
5 (f) Project Finance Payments, except as limited and allowed in
6 calculating Net Proceeds in Section 1.25.
7 Developer shall also be solely responsible for paying, when due, and timely
8 recording and reporting any and all then-current direct and indirect taxes lawfully
9 assessed against developer (including, without limitation, federal, state and local taxes,
10 and sales and use taxes, excise taxes, FICA, income taxes, state, local and federal
11 gasoline and fuel taxes, property taxes on Developer's property used in connection with
12 the Work, occupational taxes, and property taxes pursuant to Section 7 of the Ground
13 Lease), assessments, fees, charges, customs charges, surcharges, duties, tariffs,
14 charges for remedial action, and any payments required to be made in lieu of any of the
15 foregoing, any or all of which shall be of any nature, and any and all penalties, fines,
16 and interest on any and all of the foregoing (collectively, "Governmental Charges and
17 Taxes') that may be imposed by or on behalf of any governmental entity (including, but
18 not limited to, any Governmental Enforcement Agency), any quasi-governmental entity,
19 or any entity regulated by Applicable Laws and Regulations or a governmental entity
20 (including, but not limited to, any Utility) upon, relating to, arising out of, or in any
21 manner connected with Developer's exercise of any and all of Developer's rights, and/or
22 performance of any and all of Developer's obligations, under the Revenue Agreement,
23 including by way of example, and not as a limitation:
24 (1) Developer's performance and completion of the Work;
25 (2) Developer's payments of any amounts for Allotted LFG to County,
26 as Remittance of Net Proceeds Payment (Section 1.32);
27 (3) Developer's operation and maintenance costs, as defined in Net
28 Proceeds (Section 1.25);
34
1 (4) County's sale to Developer, and Developer's purchase from
2 County, of the LFG under and according to the terms and conditions of the Revenue
3 Agreement;
4 (5) Developer's use, processing, purifying into another form, such as
5 natural gas, conversion into another form, such as energy, treatment, conditioning, sale,
6 or resale, of the LFG whether or not contemplated under the Revenue Agreement;
7 (6) Any transaction or other matter with respect to any Renewable
8 Energy Certificates (RECs); or
9 (7) Developer's obligation, as "Lessee" under the Ground Lease, to
10 pay property taxes that may be levied on Lessee's property interest created by the
11 Ground Lease, as more fully and particularly set forth in Section 7 (Taxes and
12 Assessment) of the Ground Lease.
13 "Governmental Charges and Taxes"includes any and all such Governmental
14 Charges and Taxes that are in effect (including any and all Governmental Charges and
15 Taxes that have later become enacted, adopted, or amended subsequent to the
16 Effective Date) at the time of their consideration during the Term.
17 Developer's sole cost and expense shall not affect the provisions of Net
18 Proceeds (Section 1.25), Remittance of Net Proceeds (Section 1.31) or Remittance of
19 Net Proceeds Payment (Section 1.32).
20 ARTICLE 10. DEVELOPER'S TESTING AND PREPARATION OF WORK
21 10.1. Inspection and Study Prior to Effective Date. Developer represents,
22 covenants, and warrants that, prior to the Effective Date:
23 (a) Developer has fully inspected the Landfill and the Premises, and
24 that there exists sufficient access to and space on the Premises, and sufficient access
25 to all necessary Utilities, for the installation, operation, and maintenance of the
26 Developer's Facilities according to the terms and conditions of this Agreement; and
27 (b) Developer acknowledges that such LFG contains, and will contain,
28 siloxane and moisture, and other unwanted components. Developer is agreeable to
35
1 purchasing Allotted LFG, pursuant to this Agreement, with siloxane and moisture, and
2 other unwanted components, regardless of whether such siloxane or moisture, or
3 unwanted components, differ at any time from the amounts tested by Developer.
4 (c) Any documents or studies provided by the County and reviewed by
5 the Developer shall not constitute to the Developer a representation or warranty,
6 expressed or implied, by the County with respect to such documents and studies.
7 10.2. Inspection and Study Prior to Preparing Plans and Specifications.
8 Developer represents, covenants and warrants to County that, prior to Developer's
9 preparation of Plans and Specifications:
10 (a) Developer, using Good Industry Practices, shall have undertaken
11 all requisite engineering, feasibility, and operational studies and testing with respect to
12 the Premises, the proposed Work, and Developer's Facilities that are necessary or
13 appropriate for Developer's performance of its obligations under the Revenue
14 Agreement;
15 (b) Developer shall have diligently and carefully inspected the Landfill
16 and the Premises, both below ground and above ground with respect to the nature and
17 location of any facilities of Utilities, including their transmission lines, and reviewed
18 County's records concerning the nature and location of underground utilities, and made
19 all appropriate inquires of County and any and all relevant public entities, Utilities, and
20 the relevant underground service alert with respect to same; and
21 (c) Developer shall have made all inquiries of County, and received all
22 responses from County, with respect to the Landfill, the County's LFG Management
23 System, the Premises, and the LFG to Developer's satisfaction, and that by Developer
24 preparing the Plans and Specifications, there shall be no unresolved inquiries with
25 County with respect to the Landfill, the County's LFG Management System, the
26 Premises, and the LFG that are necessary for Developer to prepare the Plans and
27 Specifications.
28
36
1 10.3. Inspection and Study Prior to Work. Developer represents, covenants
2 and warrants to County that, prior to Developer's commencement of the Work:
3 (a) Developer shall have studied and compared all Approved Plans
4 and Specifications, and other agreements related to the operations of Developer's
5 Facilities at the Landfill. A lack of knowledge of any phase affecting the Landfill and its
6 relationship to Developer's Work, or the interrelationship of the Approved Plans and
7 Specifications, shall not excuse Developer from fully performing its obligations under the
8 Revenue Agreement;
9 (b) Developer shall have diligently and carefully re-inspected the
10 Landfill and the Premises, both below ground and above ground with respect to the
11 nature and location of any facilities of Utilities, including their transmission lines, and
12 updated its review of County's records concerning the nature and location of
13 underground utilities, and made all appropriate inquires of, and alerts to, County and
14 any and all relevant public entities, Utilities, and the relevant underground service alert
15 with respect to Developer's proposed commencement of the Work; and
16 (c) Developer shall have made all inquiries of County, and received all
17 responses from County, with respect to the Landfill, the County's LFG Management
18 System, the Premises, and the LFG to Developer's satisfaction, and that by Developer
19 commencing the Work, there shall be no unresolved inquiries with County with respect
20 to the Landfill, the County's LFG Management System, the Premises, and the LFG that
21 are necessary for Developer to undertake the Work.
22 10.4. Public Records. Developer acknowledges and agrees that any
23 information that has been provided by County to Developer is subject to Section 41.14,
24 herein.
25 ARTICLE 11. [RESERVED]
26 ARTICLE 12. AUTHORIZATIONS AND GOVERNMENTAL APPROVALS
27 12.1. Approvals. All of Developer's Work for Developer's Facilities shall be in
28 full compliance with all Applicable Laws and Regulations, including, by way of example,
37
1 and not as a limitation, the most current edition then in effect in Fresno County of the
2 California Building Code, California Plumbing Code, California Electrical Code, and
3 California Fire Code, and the Cal/OSHA Safety Regulations, and all federal
4 requirements (including, without limitation the United States Environmental Protection
5 Agency). Without limiting the generality of the foregoing, Developer represents,
6 covenants and warrants that it shall obtain, and maintain, any and all of the required
7 Authorizations and Governmental Approvals for the Work, including, by way of example,
8 and not as a limitation, any and all permits, licenses, approvals, franchises and land use
9 clearances, and that the required coordination of the Work have been accomplished
10 from and with appropriate third parties, including utilities, and Governmental Agencies,
11 for Developer's performance of its obligations under the Revenue Agreement; provided,
12 however, if any of such items for the Work cannot be obtained at such time because
13 they are not issued until after completion of the Work, Developer shall obtain such items
14 prior to requesting County for its Final Approval. All such required Authorizations and
15 Governmental Approvals, including, by way of example, and not as a limitation, permits,
16 licenses, approvals, franchises, land use clearances and coordination for the installation
17 and operation of the Developer's Facilities, further including, by way of example, and
18 not as a limitation, the United States Environmental Protection Agency permits, State of
19 California plumbing, electrical and Cal/OSHA permits, and permits and licenses
20 required by the San Joaquin Valley Air Pollution Control District, the California Water
21 Quality Control Board, Environmental Health, and PG&E shall be secured and paid for
22 by Developer, and in any event prior to requesting County for its Final Approval.
23 Developer shall be required to pay the County for any of its Governmental
24 Authorizations, including by way of example, and not as a limitation, building permit fees
25 for the Work. County shall use reasonable efforts to provide information to Developer in
26 obtaining all necessary permits and approvals from third parties for installation of the
27 Work; provided, however, in no event shall County be responsible for paying or
28
38
1 reimbursing Developer for any permit or approval fees or for obtaining any permit or
2 fees, or certifications.
3 Developer shall simultaneously furnish to County copies of each Authorization
4 and Governmental Approval which Developer is required to obtain or submit to third
5 parties.
6 12.2. Coordination During Construction. Developer shall coordinate all of the
7 activities of Developer and its subcontractors with those activities of the County, its
8 employees, contractors and agents. Developer shall coordinate all Work with the
9 County Project Administrator to minimize any interruptions to the County's normal
10 operations and activities of the Landfill, including, without limitation, interruption to
11 Landfill Operations. Developer's Project Manager and County Project Administrator
12 shall coordinate with each other with regard to the County Project Administrator's
13 testing, inspection and approval activities under the Revenue Agreement.
14 12.3. No County Responsibility for Alterations. Developer acknowledges
15 and agrees that County does not have any responsibility for altering, improving the
16 Landfill, including County's LFG Management System and operations of the Landfill, to
17 accommodate the Work, or Developer's Facilities, or Developer seeking and obtaining
18 any governmental approvals.
19 ARTICLE 13. DEVELOPER'S FACILITIES; WORK
20 13.1. Developer's Facilities and the Work. Subject to Developer's
21 compliance with Article 7, which shall precede the Parties entering into the Ground
22 Lease, and to the Parties entering into the Ground Lease, as further provided in the
23 Revenue Agreement, Developer shall, under a comprehensive Turnkey program,
24 provide, develop, engineer, design, construct, finance, install, and implement
25 Developer's Facilities for the Landfill, which shall include the management, supervision,
26 and direction of all aspects and details thereof, including further all development,
27 engineering, design and construction means, methods, techniques, sequences,
28 processes and procedures and for coordinating, implementing and completing all
39
1 portions thereof and timely progress and administration thereof under the Revenue
2 Agreement, all of which shall be in accordance with all Good Industry Practices,
3 pursuant to the requirements of all Authorizations, Governmental Approvals, and
4 Applicable Laws and Regulations (collectively, the "Work"), all of which shall be at the
5 Developer's sole cost and expense. Developer shall engage and provide all necessary
6 professional services including but not limited to architects, civil, mechanical, electrical,
7 structure and other professional engineers, project managers and project supervisors.
8 The term "Work" shall be comprehensive requiring Developer to develop, engineer,
9 design, select, construct, install, complete, and implement the Work, including
10 Developer's Facilities and the operation and maintenance thereof, and perform all of its
11 other obligations under the Revenue Agreement, all of which shall be at the Developer's
12 sole cost and expense.
13 13.2. Specific Minimum Requirements. Subject to Developer's compliance
14 with Article 7, which shall precede the Parties entering into the Ground Lease, and to
15 the Parties entering into the Ground Lease, Developer, at its sole cost and expense,
16 shall cause the Developer's Facilities with respect to its design, engineering,
17 construction, installation, implementation, ownership, operation, and maintenance, to
18 meet all of the following specific, minimum requirements, which shall be deemed to be
19 contractual covenants of Developer in favor of County:
20 (a) Developer shall timely comply with any or all of its obligations with
21 respect to CEQA as more fully set forth in, and pursuant to, Article 7 (CEQA
22 Compliance);
23 (b) Developer shall timely obtain any and all necessary land use
24 clearances for Developer's Facilities, and shall timely comply with any and all local
25 zoning ordinance and conditional use permit (or other permit) requirements of the
26 Developer's Facilities with respect to the generation of vibration, noise, glare, and other
27 emissions that would result from the Developer's Facilities, including those which may
28
40
1 be required by any or all Governmental Approvals and Applicable Laws and Regulations
2 of County;
3 (c) Developer's Facilities shall timely comply with any and all
4 requirements of the San Joaquin Valley Air Pollution Control District, including those
5 which may be required by all San Joaquin Valley Air Pollution Control District
6 Governmental Approvals and Applicable Laws and Regulations;
7 (d) Developer's Facilities shall timely comply with any and all
8 requirements of the California Regional Water Quality Control Board, including those
9 which may be required by all California Regional Water Quality Control Board
10 Governmental Approvals and Applicable Laws and Regulations;
11 (e) Developer's Facilities shall timely comply with any and all
12 requirements of the Fresno County Environmental Health Department, both in its
13 capacity as a County department and as the local enforcement agency for the California
14 Department of Resources Recycling and Recovery, which also is known as
15 "CalRecycle", including those which may be required by all Fresno County
16 Environmental Health Department (both in its capacity as a County department and as
17 the local enforcement agency for CalRecycle) Governmental Approvals and Applicable
18 Laws and Regulations;
19 (f) Developer's Facilities shall timely comply with any and all of the
20 requirements of the California Public Utilities Commission, including those which may
21 be required by all California Public Utilities Commission Governmental Approvals and
22 Applicable Laws and Regulations;
23 (g) Developer's Facilities shall timely comply with any and all of the
24 requirements of the Pacific Gas and Electric Company ("PG&E'), including those which
25 may be required by all Governmental Approvals and Applicable Laws and Regulations,
26 and, if PG&E Authorizations are required to be obtained by Developer, then also by
27 PG&E's Authorizations; and
28
41
1 (h) Developer shall obtain a building and construction permit from the
2 Development Services Division of the Department of Public Works and Planning of the
3 County.
4 13.3. Sole Name of Developer. Any and all of Developer's Authorizations and
5 Governmental Approvals that are required with respect to the Work and Developer's
6 Facilities, and any other work, service, or function concerning Developer's performance
7 of its obligations, under the Revenue Agreement shall be in the sole name of Developer,
8 unless otherwise first expressly approved in writing by the Director. Developer shall not
9 be entitled to use the County as the entity obtaining (or obtaining as a co-applicant or
10 similar capacity) such Authorizations and/or Governmental Approvals.
11 ARTICLE 14. QUALIFICATIONS OF SUBCONTRACTORS
12 14.1. Subcontracts. As used in the Revenue Agreement, the term
13 "subcontractor"means a person or entity providing or supplying labor, services,
14 supervision, management, equipment, supplies, goods and/or materials, or any
15 combination thereof for engineering, design, construction, installation, and completion of
16 the Work, or the operation and maintenance of the Developer's Facilities, as applicable;
17 subcontractor also includes Developer's project manager and the project
18 superintendent, if such persons are not officers or employees of Developer. Developer
19 shall be solely responsible for ensuring that each and every subcontractor shall be
20 properly qualified to perform, and capable of timely performing, its portion of the Work,
21 and/or to provide, and capable of timely providing, the services, materials, supplies or
22 goods, as applicable, that is the subject of such subcontractor's contract (or
23 subcontract) with Developer (or other subcontractors) with respect to the Work and/or
24 Developer's Facilities in accordance with Good Industry Practices, pursuant to the
25 requirements of all Authorizations, Governmental Approvals, and Applicable Laws and
26 Regulations. Developer shall be solely responsible for conducting any necessary
27 investigations, including background checks for prior criminal history, to ensure such
28 qualifications of all such subcontractors.
42
1 14.2. Professionals - Good Practice. All professional services called for by, or
2 necessitated by reason of, the Revenue Agreement, including by way of example, and
3 not as a limitation, engineering services, shall be performed by the appropriate,
4 qualified, skilled, experienced and licensed professionals employed or retained by
5 Developer, which licenses shall be valid and in good standing in the State of California.
6 All such services shall be performed in accordance with all Applicable Laws and
7 Regulations and all applicable standards of professional conduct for such licensed
8 professionals prevailing in the State of California at the time such services are being
9 rendered, and with diligence and care ordinarily exercised by such professionals in
10 similar circumstances in accordance with sound professional practices. This Section
11 14.2 is not intended to be limited to one practice or method to the exclusion of all others;
12 provided, however, all such practices or methods shall qualify under this Section 14.2.
13 ARTICLE 15. CONSTRUCTION BY DEVELOPER
14 15.1. Preconditions to Work. Subject to Developer's compliance with Article
15 7, which shall precede the Parties entering into the Ground Lease, and to the Parties
16 entering into the Ground Lease, Work shall not be commenced at the Premises unless
17 and until the following shall have first occurred:
18 (a) Not later than thirty (30) Days prior to the commencement of Work,
19 or any portion thereof, Developer shall:
20 (i) Deliver, by the Developer, certificates of insurance and
21 endorsements pursuant to Article 34;
22 (ii) Deliver, by the Developer, bonds pursuant to Article 34;
23 (iii) Deliver, by the Developer, together with (i) and (ii), any letters of
24 credit approved by the County pursuant to Article 34;
25 (iv) Deliver, by the Developer, Developer's organizational chart for
26 implementation and operation of the Allotted LFG-to-Energy Plan.
27
28
43
1 b) Not later than one hundred twenty (120) calendar days following the
2 Effective Date, unless beyond the reasonable control of the Developer (provided
3 Developer is exercising due diligence) and prior to the commencement of Work, or any
4 portion thereof, Developer shall:
5 (i) File a completed air quality permit (and any other permit)
6 application, including all necessary supporting documentation required to make such
7 application complete, and pay the full amount of the appropriate fees to the San Joaquin
8 Valley Air Pollution Control District providing satisfactory proof thereof to the County;
9 (i i) File a completed permit application, including all necessary
10 supporting documentation required to make such application complete, with all other
11 applicable Governmental Enforcement Agencies, including, by way of example, and not
12 as a limitation, the California Regional Water Quality Control Board, the Fresno County
13 Environmental Health Department, both in its capacity as a County department and as
14 the local enforcement agency for the California Department of Resources Recycling and
15 Recovery, which also is known as "CalRecycle" (and if a separate application and
16 permit fee is required for CalRecycle, such application and fee shall be submitted to
17 CalRecycle), and pay the full amount of the appropriate fees to all such Governmental
18 Enforcement Agencies, providing satisfactory proof thereof to the County; and
19 (c) Prior to commencing the Work, or any portion thereof, Developer
20 shall (i) obtain all Authorizations and Governmental Approvals, including, without
21 limitation the Governmental Approvals with respect to the applications thereof referred
22 to in paragraph (b), immediately above, necessary for the Work, and (ii) give County
23 proof to its satisfaction of Developer having obtained all of such Authorizations and
24 Governmental Approvals, and paid the full amount of the appropriate fees therefor;
25 (d) Not later than fifteen (15) Days after County's receipt of
26 Developer's proof of having obtained all of the foregoing Authorizations and
27 Governmental Approvals in paragraph (b), immediately above and paid the full amount
28 of the appropriate fees therefor, and providing the bonding and insurance requirements
44
1 in paragraph (a) above, all of which shall be to the satisfaction of the County Director,
2 the County Project Administrator will issue a written notice to proceed with the Work
3 ("Notice to Proceed"), which County shall issue to Developer, provided that all CEQA
4 requirements and decisions, including the Ground Lease, are final and non-appealable.
5 Developer shall commence the Work, at the Premises, not later than thirty (30) calendar
6 days following receipt of such Notice to Proceed; and
7 (e) Following the County's issuance of the Notice to Proceed to
8 Developer, Developer shall, within at least ten (10) Days before the on-site
9 commencement of construction of the Work, deliver to County a written confirmation
10 and notice that Developer shall commence the Work on a specific date to allow County
11 the opportunity to post at the Premises and record in the Office of County Recorder
12 against the Premises a "notice of nonresponsibility" with respect to such Work pursuant
13 to California Civil Code Section 3094, or its successor statute, all pursuant to Section 10
14 of the Ground Lease. Developer shall diligently prosecute its performance of the Work
15 and shall complete the Work, all as set further forth in this Article.
16 15.2. Project Schedule. Subject to Developer's compliance with Article 7,
17 which shall precede the Parties entering into the Ground Lease, and to the Parties
18 entering into the Ground Lease, to ensure Developer's timely commencement of the
19 Work, and start-up and operation of Developer's Facilities for the purposes of the
20 Revenue Agreement, construction of the Developer's Facilities shall commence,
21 proceed, and be completed by Developer in strict accordance with the Project
22 Schedule. The Project Schedule shall include a detailed timeline including a critical
23 path and milestones, including but not limited to the following:
24 (a) Securing of Project Financing;
25 (b) Building plans and specifications;
26 (c) Permit Approval:
27 (i) Building;
28 (ii) San Joaquin Valley Air Pollution Control District (APCD);
45
1 (iii) Fresno County Department of Public Health, Local
2 Enforcement Agency (LEA);
3 (iv) CalRecycle;
4 (v) Regional Water Quality Control Board (RWQCB); and
5 (vi) Other agencies as required;
6 (d) Construction ground-breaking;
7 (e) Construction completion;
8 (f) Power Purchase or other Purchase Agreement, as applicable; and
9 (g) Operations Date.
10 Except as otherwise expressly stated in this Section 15.2, subject to Developer's
11 compliance with Article 7, which shall precede the Parties entering into the Ground
12 Lease, and to the Parties entering into the Ground Lease, the Parties agree that the
13 following deadlines are important to Developer's successful completion of the Work:
14 (a) Completion of Work Deadline. The Parties agree the time of
15 completion of Work shall be as set forth in the Project Schedule, including any period of
16 extension of such time authorized as a change order ("Change Order") due to a Force
17 Majeure (collectively, the "Completion of Work Deadline"), and in all instances strictly
18 according to the Project Schedule, including amendments thereof authorized by any
19 such Change Order. The Parties also agree that time shall be an essential and material
20 consideration in Developer's performance of its obligations under the Revenue
21 Agreement. Developer shall schedule the Work in a manner that will progress to timely
22 completion without interruption;
23 (b) Initial Sale and Purchase of Allotted LFG. When the Work has
24 reached a point in the development of Developer's Facilities that Developer needs to
25 use Allotted LFG for commissioning of Developer's Facilities, Developer shall deliver to
26 County a written request therefor requesting County to make Allotted LFG available
27 pursuant to the Revenue Agreement, including an estimate of Developer's needs for
28
46
1 such Allotted LFG. Any such Allotted LFG made available by County shall be sold by
2 County, and purchased by Developer;
3 (c) Switch-Over Deadline. Not later than the time specified in Article
4 18, the Parties shall comply with the switch over; and
5 (d). Liquidated Damages for Failure to comply with the Operations
6 Date. If the Developer fails to comply with the Operations Date, pursuant to the Project
7 Schedule, Developer and the County acknowledge that it is impracticable or extremely
8 difficult to fix the amount of actual monetary damages. Accordingly, the Developer
9 agrees to pay, as a reasonable amount, to the County, and not as a penalty, liquidated
10 damages in the daily sum specified as follows:
11 For each calendar month of delay (or a portion thereof) after the scheduled
12 Operations Date and until the Operations Date occurs, a monetary amount equal to Ten
13 thousand dollars ($10,000) per calendar month (or portion thereof).
14 Not later than thirty (30) calendar days from the date of the County's delivery of
15 an invoice to Developer for payment of the foregoing liquidated damages, Developer
16 shall deliver full payment thereof to County at the address in Section 41.8 of the
17 Revenue Agreement. All amounts of liquidated damages due and payable from
18 Developer to County that are not fully paid within fifteen (15) calendar days after the
19 date when due for payment, shall bear interest from the due date until fully paid at the
20 interest rate of ten percent (10%) per annum. County will not be obligated to issue any
21 notice, make any demand, or submit any invoice or claim for the payment of such
22 interest in order for such interest to accrue and be payable.
23 Without altering Developer's obligation to pay such liquidated damages, if
24 Developer promptly notifies County in writing of a delay due to a factually supported
25 Force Majeure within five (5) Days of its occurrence, the Operations Date shall be
26 extended by County for a reasonable period of time due to such Force Majeure.
27 County's granting of a time extension, if any, for any prior request(s) therefor shall not
28 obligate the County, or be a precedent for granting subsequent requests therefor,
47
1 regardless of whether the circumstances are the same or similar in any of such
2 instances.
3 Notwithstanding anything stated to the contrary in the Revenue Agreement, any
4 extension of the Project Schedule granted by County shall not constitute, or be deemed
5 to constitute, a waiver or extension by County in favor of Developer, or a release by
6 County of Developer from its Project Schedule obligations, including Developer's
7 Facilities, under the Revenue Agreement, or a waiver of the County's right to terminate
8 the Revenue Agreement, all leases, licenses and permits.
9 15.3. No Monetary Payment by County to Developer. Except as otherwise
10 expressly stated in this Section 15.3, the provisions of this section 15.3 are subject to
11 Developer's compliance with Article 7, which shall precede the Parties entering into the
12 Ground Lease, and to the Parties entering into the Ground Lease.
13 In consideration of Developer's performance and completion of all of the Work to
14 County's satisfaction, County's sole obligation to Developer shall be to make available
15 the Allotted LFG to Developer at the Transfer Point, for sale of such Allotted LFG by
16 Developer, and for County to perform its other obligations under the Revenue
17 Agreement. County shall not have any obligation whatsoever to compensate Developer
18 for performing or completing the Work or operating and maintaining the Developer's
19 Facilities. Developer shall provide the following information to County, within fifteen (15)
20 calendar days following each month as provided in the Project Schedule, to assure
21 County that the Developer is constructing the Work according to the terms and
22 conditions of the Revenue Agreement to ensure that the Developer's Facilities will be
23 timely and successfully implemented according to the terms and conditions thereof:
24 (a) An executed certificate of a qualified licensed engineer, addressed
25 to the County, applicable to that portion of the completed Work stating that such portion
26 of Work has been satisfactorily performed in accordance with the Project Schedule;
27
28
48
1 (b) If required by the County Project Administrator, Developer shall
2 provide County with certified payrolls for any portion of the Work as verification of
3 wages paid to any workmen for any portion of the Work; and
4 (c) Properly-executed conditional (for progress payments) and
5 unconditional (for final payment) Waivers and Release of Liens of all persons, firms and
6 corporations supplying work, labor, services, supervision, management, equipment,
7 supplies, goods, and materials for the Work ("Potential Lien Claimants") upon progress
8 payments or the final payment, as applicable. Waiver and Release forms shall comply
9 with California Civil Code 3262.
10 Developer represents, covenants, and warrants to County that title to the Work,
11 and every portion thereof, including risk of loss thereof, shall always remain solely with
12 Developer.
13 The Work shall be free and clear of any and all liens, stop notices, claims,
14 security interests, financing statements or other encumbrances (collectively, "Liens").
15 It is expressly understood and agreed between the Parties that Developer's
16 completion of the Work under the Revenue Agreement shall not be a release of
17 Developer's responsibility to fully perform its obligations under the Revenue Agreement,
18 or otherwise affect the provisions respecting Developer's obligation to obtain and
19 maintain insurance under Article 34 (Insurance, Risk of Loss, Bonds, Performance
20 Security), to assume the risk of loss of the Developer's Facilities under Section 34.8,
21 and to obtain and maintain the Performance Bond and Labor and Material Bond under
22 Section 34.9.
23 Notwithstanding anything stated to the contrary in this subsection, County's
24 receipt of information for purposes of Developer's compliance shall not be deemed to be
25 approval or acceptance of the Work, or any portion thereof, or of the Developer's
26 Facilities, or any portion thereof, nor shall such provision of information by Developer to
27 County, be construed as relieving Developer from the responsibility for all work, labor,
28 services, supervision, management, equipment, supplies, goods, and materials for
49
1 which payments have been made or for the restoration of any damaged work,
2 equipment, materials, supplies and goods, or as a waiver of the right of County to
3 require Developer to fully perform all of its obligations under the terms and conditions of
4 the Revenue Agreement. County will not authorize any payment by Developer to its
5 subcontractors.
6 Upon Developer's completion of all Work, and the unconditional release and
7 waiver of all claims by Potential Lien Claimants, if any, against County (provided,
8 however, such requirement for unconditional release and waiver in favor of County does
9 not represent, or imply, any County obligation to make any payment to Developer or
10 anyone else with respect to the Work), Developer shall thereupon file a written Notice of
11 Completion of the Work at the Office of the County Recorder, pursuant to California Civil
12 Code Section 3093, as to each portion of the Work for the Developers, all of which
13 collectively shall constitute the Work for all of Developer's Facilities.
14 Developer shall be solely responsible for paying for any and all costs and
15 expenses, including any delinquent or late payment fees, and provided no claims or
16 liens are recorded on County property necessary to perform its obligations under the
17 Revenue Agreement, including, but not limited to:
18 (a) For all materials, tools, supplies and equipment not later than (45)
19 forty five days after such payments and expenses become due and payable;
20 (b) For paying any and all costs of labor, services, supervision,
21 management, and other employees, including, but not limited to, Worker's
22 Compensation Insurance, as required by the California Labor Code, Social Security,
23 Unemployment Insurance coverage and FICA;
24 (c) For paying to or on behalf of Developer's employees for health and
25 welfare, pension, vacation, and training, if any;
26 (d) Any and all Governmental Charges and Taxes not later than (45)
27 forty five days after such payments and expenses become due and payable;
28
50
1 (e) Any and all fees and charges for permits and licenses, and royalty
2 and license fees incidental to the use of any patented material, device, right, method or
3 process, or propriety or right, or intellectual property right, or copyrighted material for the
4 Work, not later than (45) forty five days after such payments and expenses become due
5 and payable;
6 (f) Making any and all payments to each of Developer's
7 subcontractors, to the extent of their work, labor, services, supervision, management,
8 equipment, supplies, goods, and materials not later than (45) forty five days after such
9 payments and expenses become due and payable;
10 (g) For paying for all overhead, and any and all necessary and
11 incidental costs and expenses required of Developer to perform the Work and to provide
12 its services under the Revenue Agreement, as such payments and expenses become
13 due and payable;
14 (h) For paying for any and all travel, meals and lodging of Developer's
15 employees and subcontractors, as such payments and expenses become due and
16 payable; and
17 (i) For paying for all transportation and utility services not later than
18 (45) forty five days after such payments and expenses become due and payable.
19 15.4. Prevailing Wage. Developer and its subcontractors may be required to
20 comply with Sections 1720 to 1780, inclusive, of the California Labor Code, or
21 equivalent federal law, concerning the payment of wages to all workers, including
22 laborers and mechanics, and the employment and payment of apprentices by
23 Developer or any subcontractor for all Work performed under the Revenue Agreement
24 and may be required, depending on funding, to comply with the Davis-Bacon Act
25 (collectively, "prevailing wage laws"). If Developer believes it is not subject to such
26 laws, it shall submit a legal opinion to the County as the basis for any such
27 noncompliance. If the County disagrees with the Developer's legal interpretation, the
28 County reserves the right to submit the matter to the state or federal department or
51
1 agency responsible for interpreting and enforcing prevailing wage laws. Such agency's
2 interpretation of the prevailing wage laws shall be controlling between the Parties. If
3 prevailing wage laws do apply under state or federal law, Developer shall require all
4 subcontractors to comply with Sections 1720 to 1780, inclusive, of the California Labor
5 Code, and any corresponding provisions of federal law, and shall insert into every
6 subcontract the requirements contained therein. Developer shall indemnify, defend and
7 hold harmless the County, its representatives, officers, employees, successors and
8 assigns from any and all liability, including any and all payments, costs, fines or
9 penalties for failure to comply with prevailing wage laws.
10 15.5. Overtime Provisions. Developer and its subcontractors shall comply with
11 Sections 1810 to 1815, inclusive, of the California Labor Code concerning hours of work
12 and payment of overtime compensation for all work performed on the Work. Developer
13 shall require all subcontractors to comply with Sections 1810 to 1815, inclusive, of the
14 California Labor Code and shall insert into every subcontract the requirements
15 contained therein.
16 15.6. Parties' Progress Meetings. Subject to Developer's compliance with
17 Article 7, which shall precede the Parties entering into the Ground Lease, and to the
18 Parties entering into the Ground Lease, at least every two (2) weeks each month
19 (unless there shall be, upon County's determination, the occurrence and continuation of
20 an unreasonable delay in Developer's progress of its construction of the Developer's
21 Facilities, in which case, such intervals shall be as determined by County, upon notice
22 thereof given to Developer), Developer shall conduct regularly scheduled progress
23 meetings with County Project Administrator and various personnel and consultants
24 selected by the County Project Administrator (collectively, the "County Team") to review
25 the progress of the Work for Developer's Facilities.
26 15.7. Work hours. Subject to Developer's compliance with Article 7, which
27 shall precede the Parties entering into the Ground Lease, and to the Parties entering
28 into the Ground Lease, Developer shall perform all of the Work within County's regular
52
1 working hours for the Landfill, unless excepted by written approval of the County Project
2 Administrator; provided, however, nothing contained herein, including any written
3 approval of the County Project Administrator, is a requirement or authorization by
4 County with respect to setting the working hours, or days of work, of Developer,
5 including its subcontractors, workers, laborers, mechanics, and apprentices.
6 15.8. Plans and Specifications. Except as otherwise expressly stated in this
7 Section 15.8, the provisions of this Section 15.8 are subject to Developer's compliance
8 with Article 7, which shall precede the Parties entering into the Ground Lease, and to
9 the Parties entering into the Ground Lease.
10 Developer shall perform all Work in compliance with the Revenue Agreement
11 and the Contract Documents. The term "Contract Documents" shall include this
12 Revenue Agreement, the Ground Lease, and other documents prepared by Developer
13 (and for those documents, as applicable, which require Developer to obtain County's
14 approval thereof) for the Work.
15 (a) County's Approval of Plans and Specifications. Prior to performing
16 any construction of the Developer's Facilities, Developer shall prepare and submit to the
17 County Project Administrator a complete electronic duplicate set of the design drawings
18 and construction plans and specifications, including their calculations and details for
19 such drawings, and plans and specifications, of the Work for Developer's Facilities
20 (collectively, the "Plans and Specifications") for requested approval thereof by the
21 County's Director. The Plans and Specifications shall be certified or otherwise
22 approved by a qualified engineer licensed by the State of California. Upon the County
23 Director's receipt of such Plans and Specifications, the County's Director shall, within a
24 reasonable time thereafter, review and either approve the Plans and Specifications, if
25 they fully conform to the provisions of this Section 15.8(a) (the "Approved Plans and
26 Specifications"), or reject the Plans and Specifications if they do not fully conform to the
27 provisions of this Section 15.8(a). Such right of the County's Director to withhold
28 approval of all of the Plans and Specifications shall continue after each rejection, if any,
53
1 unless and until Developer fully complies with the provisions of this subsection 15.8(a).
2 Any rejection by the County's Director with respect to any portion of the Plans and
3 Specifications shall not be deemed to be partial acceptance by the County of the
4 remainder of the Plans and Specifications. The County's Director also reserves the right
5 to add any reasonable conditions, which are consistent with the Revenue Agreement, to
6 his or her approval of the Plans and Specifications. County will use reasonable
7 judgment in approving Developers Plans and Specifications.
8 (b) Developer Not Relieved of Responsibility. The County Director's
9 approval of the Plans and Specifications and the Contract Documents shall not relieve,
10 or lessen the requirement of, Developer's responsibility to perform all of its obligations
11 under the Revenue Agreement to its fullest intent in accordance with the terms and
12 conditions of the Revenue Agreement, and Developer shall in any event remain solely
13 responsible, among other provisions of the Revenue Agreement, for: confirming and
14 correlating all calculations, details, dimensions, and quantities; selecting materials,
15 fabrication processes, and techniques of construction; coordinating the work of the
16 trades; and performing the Work in a safe and satisfactory manner in accordance with
17 Good Industry Practices, pursuant to the requirements of all Authorizations,
18 Governmental Approvals, and Applicable Laws and Regulations. Review and approval
19 by the County shall not be an assumption of liability by the County.
20 (c) Corrections. The Parties also agree that if either Party discovers at
21 any time during the Term that the Approved Plans and Specifications do not fully
22 conform to the Contract Documents, such Approved Plans and Specifications shall
23 promptly be corrected by Developer to conform to the Contract Documents
24 notwithstanding the County Director's prior approval of the Plans and Specifications,
25 and Developer shall promptly obtain the County Director's approval thereof, and correct
26 such portion of the Work; provided however, Developer shall first obtain the County
27 Director's approval of such corrected portion of the Work prior to performing any such
28 construction or reconstruction of the Developer's Facilities.
54
1 (d) Copies. Developer shall produce and make any and all necessary
2 copies and reproductions of the Approved Plans and Specifications and any other
3 drawings, diagrams or documents necessary to carry out the Work, and make such
4 documents available to the County Project Administrator for inspection. As a condition
5 to the County's acceptance of the Developer's Facilities, Developer must deliver the
6 complete set of record drawings to the County Project Administrator that shall be
7 acceptable to the County Project Administrator.
8 (e) County's Reliance on Developer's Expertise. Developer
9 acknowledges and agrees that County does not have expertise or experience in
10 providing, developing, engineering, designing, constructing, financing, installing,
11 implementing, owning, operating, or maintaining Developer's Facilities, and that the
12 County is relying on Developer's represented experience and expertise in providing
13 Plans and Specifications that fully conform to the Revenue Agreement and to all of the
14 Contract Documents.
15 15.9. Management and Supervision Procedures. Subject to Developer's
16 compliance with Article 7, which shall precede the Parties entering into the Ground
17 Lease, and to the Parties entering into the Ground Lease:
18 (a) Developer shall provide careful, diligent, and efficient management
19 and supervision to the Work, in accordance with Good Industry Practices. Developer
20 shall ensure that all aspects of the Work, including, without limitation, the Approved
21 Plans and Specifications, and the Contract Documents interrelate to each other in a
22 coherent, cohesive, and coordinated manner.
23 (b) Developer shall employ or engage a competent project manager
24 and superintendent during the progress of the Work, and necessary assistants who
25 shall be in attendance at the Premises during the progress of the Work. The project
26 manager and superintendent shall each give careful, diligent, and efficient management
27 and supervision to the Work, in accordance with Good Industry Practices. All notices
28 given by or to Parties shall be pursuant to Section 41.8.
55
1 (c) Developer's project manager or superintendent shall establish all
2 lines, level, and marks, if any, necessary to delineate the Work, pursuant to the
3 Revenue Agreement, and to facilitate the operations of all concerned in the Work.
4 (d) Developer, at its sole cost and expense, shall be solely responsible
5 to County for the acts and omissions of Developer's employees, the project manager,
6 the project superintendent, subcontractors and their respective officers, agents, and
7 employees, and other persons performing any of the Work. The County has the right to
8 require Developer to remove any individual employee, the project manager, the project
9 superintendent, subcontractor or any of their respective officers, agents, and employees
10 from the Landfill who are causing Developer not to properly perform its obligations
11 under the Revenue Agreement, and Developer shall remove and cause the
12 replacement of such person with another person of similar skills and ability.
13 (e) Developer shall at all times enforce strict discipline and good order
14 among Developer's employees, the project manager, the project superintendent, and
15 subcontractors. The Developer shall not employ or engage for the Work any unfit
16 person or anyone not skilled in the task assigned to him.
17 15.10. Inspection. Because County is the local governmental agency having
18 jurisdiction over the Work, County exercises local building code enforcement authority
19 over the Work. As requested by County's local building official, documentation of the
20 Work, including by way of example, and not as a limitation, Plans and Specifications,
21 will be submitted to the County's local building official for review, in County's capacity as
22 a local building code enforcement agency. Any review and approval, including approval
23 of any Plans and Specifications, or similar documents, or inspection approvals of any
24 phase of the Work, by County's local building official for purposes of ensuring that the
25 Work completed in accordance with local building codes shall not be deemed to be
26 County's acceptance of the Work or any portion thereof under the Revenue Agreement.
27 Any review or approval, including approval of any Plans and Specifications, or
28 inspection approvals of any phase of the Work, or acceptance of the Developer's
56
1 Facilities by County's Contract Administrator for purposes of ensuring that the Work
2 completed in accordance with the Revenue Agreement shall not be deemed to be that
3 the Work or any portion thereof has been completed in accordance with local building
4 codes.
5 Developer shall promptly furnish, without additional charge, all reasonable
6 facilities, labor, services, supervision, management, equipment, materials, supplies and
7 goods necessary for the safe and convenient inspection and tests that may be required
8 by the County Project Administrator.
9 Should it be considered necessary or advisable by the County Project
10 Administrator at any time either before County's acceptance of the Developer's
11 Facilities or after County's acceptance of the Developer's Facilities to make an
12 examination of Work already completed, by removing or tearing out same, Developer
13 shall on request promptly furnish all necessary facilities, labor, services, supervision,
14 management, equipment, material, supplies and goods to accommodate such
15 examination. If such Work is found to be defective in any material respect, due to the
16 fault of Developer or its subcontractors, Developer shall pay for all the expenses of such
17 examination and reconstruction to the satisfaction of the County Project Administrator in
18 accordance with the Revenue Agreement. If such Work is found to meet the
19 requirements of the Revenue Agreement, the actual cost of labor, services, supervision,
20 management, equipment, materials, supplies, and goods necessarily involved in the
21 examination and replacement, plus fifteen percent (15%), shall be allowed Developer,
22 and Developer shall, in addition, if completion of the Work has been delayed thereby, be
23 granted a reasonable extension of time for the Project Schedule on account of the
24 additional work involved.
25 Developer shall not be relieved from its obligations to perform the Work in
26 accordance with the Plans and Specifications and Contract Documents either by the
27 activities or duties of the County, including the County Director or County Project
28
57
1 Administrator in his, her, or their administration of the Revenue Agreement, or by
2 inspections, tests or approvals required or performed by persons other than Developer.
3 15.11. Construction Procedures. Subject to Developer's compliance with
4 Article 7, which shall precede the Parties entering into the Ground Lease, and to the
5 Parties entering into the Ground Lease:
6 (a) Means and Methods. Developer shall be solely responsible for and
7 control of all construction means, methods, techniques, sequences and procedures for
8 all the Work of the Revenue Agreement. Additionally, Developer shall be responsible
9 for all safety precautions and programs in connection with the Work. Developer shall be
10 accountable for all acts of omission of its officers, employees, project managers, project
11 superintendents, subcontractors and any of their respective agents and employees, and
12 any other persons performing any of the Work for the Revenue Agreement.
13 (b) Materials. All materials, equipment, and goods, unless otherwise
14 specified, shall be new and of good quality.
15 (c) Compliance. Developer shall perform all of the Work in accordance
16 with Good Industry Practices, pursuant to the requirements of all Authorizations,
17 Governmental Approvals, and Applicable Laws and Regulations.
18 (d) Safeguards. Developer shall provide, in compliance with all
19 Applicable Laws and Regulations, as may be required, such temporary walls, fences,
20 guardrails, barricades, lights, danger signs, enclosures, and the like, and shall maintain
21 such safeguards until all Work is completed.
22 (e) Excavation and Trenching. Contractor shall obtain all necessary
23 and appropriate reports, including geotechnical reports, necessary or desirable for any
24 trenching, excavation, or other digging with respect to the Work. Before undertaking
25 any trenching, excavation, or other digging with respect to the Work, Developer shall be
26 responsible for contacting and coordinating with both the County Project Administrator
27 and the underground service alert, and contacting and coordinating with any and all
28 utilities affected by such trenching, excavation or other digging. In addition, for any
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1 such trenching, excavation, or other digging that extends deeper than four (4) feet
2 below the surface, the following shall apply:
3 (i) Developer shall promptly, and before the following conditions
4 are disturbed, notify County, in writing, of any:
5 (1) Material that Developer believes may be material that
6 is hazardous waste, as defined in California Health and Safety Code Sections 25117
7 and 25141, that is required to be removed to a Class I, Class 11, or Class III disposal site
8 in accordance with provisions of Applicable Laws and Regulations.
9 (2) Subsurface or latent physical conditions at area for
10 the Work different materially from those indicated by information about the area for the
11 Work made available to Developer prior to Developer's submission of its proposal to
12 County with respect to the Revenue Agreement.
13 (3) Unknown physical conditions at the area of Work of
14 any unusual nature, different materially from those ordinarily encountered and generally
15 recognized as inherent in work of the character provided for in the Revenue Agreement.
16 (ii) County shall promptly investigate the conditions. If County
17 finds that the conditions do involve hazardous waste caused by the County, County
18 shall, at its sole cost and expense, be responsible for its cleanup, and the Project
19 Schedule shall be suspended for that period of time that County takes remedial action.
20 Developer shall not be entitled to terminate the Revenue Agreement due to a condition
21 under this paragraph (ii).
22 (iii) In all instances described in (e) above, other than
23 subparagraph (ii), Developer shall, at its sole cost and expense, be responsible for the
24 conditions, and shall proceed with the Work; provided, however, Developer may, under
25 this paragraph (iii) terminate the Revenue Agreement prior to the Notice to Proceed by
26 giving to the County at least ten (10) Days' notice.
27
28
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1 (iv) In the event that a dispute arises between County and
2 Developer about any of the foregoing conditions, it shall be subject to Article 36
3 (Dispute Resolution).
4 (f) Cleanup. Each area of the Work shall be kept clean and in order
5 by Developer both during working hours and at the completion of the working day.
6 Developer shall keep the Premises free of accumulated debris, rubbish and waste
7 materials. Developer also shall undertake any such environmental cleanup as required
8 by the County Project Administrator. At any time during the Term, Developer shall, at
9 its sole cost and expense, remove all debris, rubbish and waste materials from the
10 Premises.
11 (g) Damage to County Landfill. Developer shall be solely responsible
12 for all costs and expenses incurred by County with respect to County's LFG
13 Management System as a result of work by Developer or damage caused by
14 Developer's operations at the Landfill to which this Revenue Agreement relates,
15 including, but not limited to, costs associated with restoration of full operations, including
16 any closing operations and requirements, at the Landfill. The County's security
17 procedures will be strictly enforced at the Landfill. All of Developer's workmen and
18 subcontractors, and providers of goods, services, materials, and equipment who are
19 required to perform their individual services or provide their individual items at the
20 Landfill shall be limited only to the portion of the Premises where their services or items
21 are needed.
22 15.12. Damage to Landfill or Premises. Subject to Developer's compliance
23 with Article 7, which shall precede the Parties entering into the Ground Lease, and to
24 the Parties entering into the Ground Lease, Developer, at its sole cost and expense,
25 shall repair and restore to the original condition any of the Landfill, including its
26 buildings, improvements and landscaping, and County's LFG Management System, due
27 to damage caused by Developer's negligent performance of the Work under the
28 Revenue Agreement. County reserves the right to review the Work performed by
60
1 Developer and to direct Developer to take corrective action if, in the reasonable opinion
2 of County, the integrity of the Landfill, or County's LFG Management System, has been,
3 is or will be harmed by Developer's performance of the Work. All costs and expenses
4 associated with such corrective action shall be borne by Developer.
5 (a) No Liens. Developer acknowledges that the Landfill is not owned
6 or controlled by Developer and that it is unlawful for anyone to place a lien, security
7 interest or encumbrances, upon or against the Landfill (including County's LFG
8 Management System), or any portion thereof. Developer shall not grant or allow, and
9 immediately shall take action to remove, any such liens, security interest or
10 encumbrances, and shall otherwise resolve any claims and stop notices, for labor,
11 services, supervision, management, equipment, materials, supplies, or goods or
12 otherwise on or for the Developer's Facilities, the Landfill, County's LFG Management
13 System, or other buildings, property, or improvements, or other property, whether real o
14 personal, owned by the County, or against the County, including its officers, agents, and
15 employees. Developer shall complete the Developer's Facilities, for County's requested
16 acceptance, free and clear of all liens, security interests, financing statements or other
17 encumbrances, upon or against the Landfill (including County's LFG Management
18 System), or any portion thereof.
19 (b) Developer's Relation with Subcontractors. Subject to Developer's
20 compliance with Article 7, which shall precede the Parties entering into the Ground
21 Lease, and to the Parties entering into the Ground Lease, Developer shall require every
22 subcontractor to perform or provide its portion of the Work in a timely manner pursuant
23 to the Plans and Specifications and Contract Documents, in accordance with Good
24 Industry Practices, pursuant to the requirements of all Authorizations, Governmental
25 Approvals, and Applicable Laws and Regulations. Developer further agrees that it shall
26 timely and fully pay to each subcontractor the subcontractor's due portion.
27 (c) County Has No Relationship With Subcontractors. The County has
28 not designated or selected any subcontractors to perform or provide any portion of the
61
1 Work. Nothing in the Revenue Agreement, including, without limitation, the County's
2 right to require Developer to remove any subcontractor, any other act or omission of the
3 County, or anything contained in the Plans and Specifications and any Contract
4 Document, is to be construed as creating any contractual relationship whatsoever
5 between the County and any subcontractor of any tier, or any endorsement by County
6 of any subcontractor of any tier. Nothing in the Revenue Agreement concerning
7 Developer's use of subcontractors shall relieve Developer of fully performing its
8 obligations under the Revenue Agreement to its fullest extent.
9 15.13. Developer Responsibility. Subject to Developer's compliance with
10 Article 7, which shall precede the Parties entering into the Ground Lease, and to the
11 Parties entering into the Ground Lease, Developer shall, at its sole cost and expense,
12 remain solely responsible for the professional and technical accuracy of all Work,
13 including services performed, whether performed by Developer or its subcontractors or
14 others on its or their behalf, throughout the Term.
15 15.14. Damage and Responsibility for Work. Neither the County, the County
16 Director, the County Project Administrator nor any officer, official or employee of the
17 County, shall be responsible or accountable in any manner whatsoever, for any loss or
18 damage that may happen to the Work or any part thereof; or for any of the materials,
19 equipment, goods or other things used or employed by Developer in performing the
20 Work; or, to the extent caused by Developer's acts, errors or omissions for injury to any
21 person or persons, either workmen or the public, for damage to property from any cause
22 which might have been prevented by Developer, caused by Developer or its workmen,
23 or anyone employed by it.
24 Developer shall be responsible for any liability imposed by law for any damage to
25 any person or property resulting from defects or obstructions caused by Developer's
26 acts, errors or omissions during the progress of the Work or at any time before the
27 completion of the Work and acceptance of the Developer's Facilities by County.
28
62
1 15.15. Modifications or Additions. Subject to Developer's compliance with
2 Article 7, which shall precede the Parties entering into the Ground Lease, and to the
3 Parties entering into the Ground Lease, after the commencement of operations of
4 Developer's Facilities and during the Term, Developer may, at its sole cost and
5 expense, make minor modifications or additions in, on, or to the Developer's Facilities
6 that enhance the usefulness of the Developer's Facilities under the Revenue
7 Agreement, subject to the following provisions:
8 (a) Minor modifications or additions in, on, or to the Developer's
9 Facilities may be made without the written consent of County being obtained, if such
10 minor modifications or additions do not require any modifications to Governmental
11 Approvals; provided that such minor modifications or additions shall not in any way
12 whatsoever affect Developer's performance of its obligations under the Revenue
13 Agreement or the Landfill Operations;
14 (b) Minor modifications or additions in, on, or to the Developer's
15 Facilities in addition to those minor modifications or additions permitted in paragraph
16 (a), herein, which do require modifications to Government Approvals, may be made only
17 upon the written approval of County first being obtained, provided that (i) any such
18 modifications or additions shall be consistent with the terms and conditions of the
19 Revenue Agreement, and shall be specifically set forth in Plans and Specifications to be
20 approved by County pursuant to Section 15.8, herein; (ii) such minor modifications or
21 additions shall not in any way whatsoever affect Developer's performance of its
22 obligations under the Revenue Agreement; (iii) Developer delivers to County a copy of a
23 complete, then-current set of record drawings for such modifications or additions within
24 fifteen (15) calendar days after the date of the completion of such modifications or
25 additions; and (iv) do not affect the Landfill Operations; and
26 (c) For any modification or additions by Developer described in (a) or
27 (b), Developer shall give County at least ten (10) Days' advance written notice of the
28 commencement of the work for such modification or addition so that County may take
63
1 the actions in the following sentence. During the Term, County will have the right to
2 enter the Premises, on a Day during Developer's normal business hours, and
3 accompanied by a representative of Developer, so that County may have the
4 opportunity to post notices of non-responsibility with respect to any work of
5 modifications or additions to the Premises that will be made by Developer, and to record
6 notices of non-responsibility with respect to such modifications or additions in the Office
7 of Fresno County Recorder pursuant to California Civil Code Section 3094.
8 15.16. County Administration of the Work.
9 (a) County Project Administrator. The County's Landfill Operations
10 Manager of the Department of Public Works and Planning, acting either directly or
11 through his or her authorized agents, shall administer the Revenue Agreement for the
12 County (the "County Project Administrator"). County employees or agents who are
13 superintendents or inspectors may be assigned by the County Project Administrator to
14 assist him or her in the County's administration of the Revenue Agreement, and those
15 persons shall be entitled to the same free access to all parts of the Work acting within
16 the scope of the particular duties entrusted to them, may act for the County Project
17 Administrator as described for the County Project Administrator.
18 ARTICLE 16. AMENDMENT REGARDING WORK
19 16.1. Amendments. An "Amendment Regarding Work"is a written instrument
20 executed by the County Director and Developer's project manager and issued after
21 execution of the Revenue Agreement, stating the Parties' agreement upon any or all of
22 the following amendments: (i) a minor change in scope of Work, but only if it is
23 consistent with the Revenue Agreement; and (ii) an adjustment to the Project Schedule.
24 An "Amendment Regarding Work" shall explicitly set forth all covered items as
25 authorized therein. Any reference to any of such items that are covered by an
26 "Amendment Regarding Work," which is entered into by the Parties as provided by this
27 Section, shall be deemed to be a modification to the Revenue Agreement, but only to
28
64
1 the extent of its provisions approved by the Parties, and only then, as allowed by this
2 Section.
3 No "Amendment Regarding Work" shall require or authorize any payment by
4 County to Developer or any third parties, including by way of example, and not as a
5 limitation, any subcontractors.
6 No "Amendment Regarding Work" shall release or exonerate any surety upon
7 any guaranty or bond given in connection with the Revenue Agreement.
8 No changes shall be made to the Revenue Agreement, or to the scope of the
9 Work except by an "Amendment Regarding Work," which is entered into by the Parties
10 as provided by this Section, or by an amendment which is entered into by the Parties as
11 provided in this Section.
12 Nothing contained herein shall obligate either Party to enter into an "Amendment
13 Regarding Work."
14 The Work under the Revenue Agreement shall be deemed completed only when
15 the Work is completed in accordance with the Revenue Agreement, as amended by all
16 "Amendment Regarding Work," which is entered into by the Parties as provided by this
17 Section. The Developer shall have satisfactorily completed its obligations in connection
18 with the Work, and County shall have accepted the Developer's Facilities.
19 ARTICLE 17. STARTUP; COMMISSIONING; PERFORMANCE TESTING
20 FINAL APPROVAL
21 17.1. Startup and Commissioning. Subject to Developer's compliance with
22 Article 7, which shall precede the Parties entering into the Ground Lease:
23 (a) Prior to the Developer issuing to County a Certificate of Operational
24 Readiness, Developer shall start up the operation of Developer's Facilities, and conduct
25 a thorough and systematic performance testing and commissioning of each component,
26 and of the total system, of the Developer's Facilities, which start up, commissioning, and
27 performance testing shall be in accordance with the procedures and requirements
28 specified by the manufacturer(s) of the equipment for Developer's Facilities, and in
65
1 accordance with the requirements of the Developer's Facilities specified in the
2 Approved Plans and Specifications.
3 (b) Before conducting such start up, commissioning, and performance testing
4 of Developer's Facilities, Developer shall provide at least twenty one (21) calendar days
5 advance written notice to the County Project Administrator of the scheduled start up,
6 commissioning, and performance testing. Such notice by Developer to the County
7 Project Administrator shall also make specific request(s) of Developer's estimated
8 needs for the purchase and use of Allotted LFG. All such scheduled start up,
9 commissioning, and performance testing of Developer's Facilities shall take place
10 during normal County business hours for the Landfill. The County Project Administrator
11 shall have the right to be present at any or all such start up, commissioning, and
12 performance testing conducted by Developer.
13 (c) During such scheduled start up, commissioning, and performance testing,
14 Developer shall be responsible for remedying, correcting, and/or adjusting all
15 deficiencies in the operation of Developer's Facilities that should, with diligent
16 investigation and attention, be observed during the Developer's Facilities' start up,
17 commissioning, and performance testing procedures. County shall be promptly given a
18 copy of any and all start up, commissioning, and performance testing reports generated
19 by or on behalf of Developer which indicate that the Developer's Facilities pass the
20 performance tests for full operation.
21 (d) Developer's Facilities shall only be deemed to pass the performance
22 testing, including as represented by the Developer in its LFGTE Project Plan, when the
23 Developer's Facilities, in its entirety and every major component thereof, at all relevant
24 times and/or for all relevant periods, meets or exceeds its performance standards, as
25 specified by the manufacturers of the equipment for Developer's Facilities, and as
26 specified by the Approved Plans and Specifications.
27
28
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1 17.2. Final Approval. Except as otherwise expressly stated in this Section 17.2,
2 subject to Developer's compliance with Article 7, which shall precede the Parties
3 entering into the Ground Lease, and to the Parties entering into the Ground Lease:
4 (a) When Developer's Facilities have reached Operational Readiness,
5 Developer shall issue a Certificate of Operational Readiness to the County which shall
6 state that Developer's Facilities have been tested to perform the operations necessary
7 to receive the Allotted LFG ("Operational Readiness"). "Operational Readiness"means
8 that:
9 (i) Developer's Facilities, in its entirety and every major
10 component thereof, have been satisfactorily started up for operation, and that Developer
11 has successfully conducted a thorough and systematic performance testing and
12 commissioning of each major element, and of the total system, of the Developer's
13 Facilities;
14 (ii) Developer's Facilities, in its entirety and every major
15 component thereof, have passed all of the performance testing in Section 17.1 , herein;
16 (iii) Developer's Facilities, in its entirety and every major
17 component thereof, have been completed and is fully functional and operational in
18 accordance with, and, at all relevant times and/or for all relevant periods, meets or
19 exceeds its performance standards, as specified by the manufacturers of the equipment
20 for Developer's Facilities, and as specified by the Approved Plans and Specifications,
21 pursuant to Section 17.1, herein, so that Developer can immediately and fully operate
22 Developer's Facilities for its intended use pursuant to the terms and conditions of
23 Revenue Agreement;
24 (iv) Developer's Facilities, when operational, shall comply with
25 the provisions of Article 26 (Coordination by Parties); and
26 (v) Developer's Facilities, when operational, shall comply with
27 the provisions of Article 8 (Non-Interference by Developer's Facilities).
28
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1 (b) Such Certificate of Operational Readiness, when presented to the
2 County Project Administrator, shall be accompanied by all of the following documents,
3 which shall be to the satisfaction of the County Project Administrator:
4 (i) An executed and dated certificate of a qualified licensed
5 engineer (including his or her official stamp), addressed to County, stating that he or
6 she inspected the Work and Developer's Facilities, and that the construction of the
7 Work, including the Developer's Facilities, has been performed and completed fully in
8 accordance with the requirements of the Approved Plans and Specifications;
9 (ii) Copies of all Authorizations and Governmental Approvals
10 required in connection with Developer's completion of the Work;
11 (iii) Proof of Developer having paid all fees and charges to
12 appropriate third parties, including Governmental Enforcement Agencies required in
13 connection with Developer's completion of the Work;
14 (iv) An as-built copy pursuant to the Approved Plans and
15 Specifications for the Developer's Facilities;
16 (v) Proof of Developer having recorded a notice of completion
17 (notice of cessation) for the Work in compliance with California Civil Code Section
18 8180(a)(4); and
19 (vi) Proof that Developer has obtained the unconditional release
20 and waiver of all claims by Potential Lien Claimants, if any, against County (provided
21 however, such requirement for unconditional release and waiver in favor of County does
22 not represent, or imply, any County obligation to make any payment to Developer or
23 anyone else with respect to the Work).
24 (vii) Developer's operations and maintenance plans, including
25 any manuals, for Developer's Facilities; and
26
27
28
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1 (c) Upon Project Administrator's receipt of the Certificate of
2 Operational Readiness, and the required accompanying documents in subparagraph (b)
3 immediately above, County shall respond in ten (10) Days and provide a schedule to
4 inspect and give Final Approval, or reject, Developer's Facilities for purposes of this
5 subsection (c). The County reserves the absolute right to reject Developer's Facilities if,
6 in the determination of the County Project Administrator (1) Developer fails to comply
7 with paragraph (b), immediately above; or (2) there is an uncured Event of Default on
8 the part of Developer under the Revenue Agreement. Such right of the County shall
9 continue after each rejection, if any, by County unless and until Developer complies with
10 all of the provisions of this paragraph (c). After giving such rejection, and as a
11 convenience to the Parties, the County may use a punch list to document items
12 requiring completion or correction; provided, however, the use of such punch list shall
13 not be deemed to be either an express or an implied partial Final Approval of the
14 remainder of the items for which Final Approval is needed. County shall not be required
15 to give Final Approval of Developer's Facilities under the Revenue Agreement unless
16 and until Developer has delivered all of the documents required in paragraph (b),
17 immediately above, to the satisfaction of the County Project Administrator; the County
18 Project Administrator has inspected same for purposes of Final Approval, as of such
19 date; and there is no known uncured Event of Default on the part of Developer under
20 the Revenue Agreement. County shall not be required to give Final Approval unless and
21 until Developer has fully complied with all of the requirements of this paragraph (c).
22 County shall evidence its Final Approval of Developer's Facilities by executing a
23 Certificate of Final Approval.
24 (d) Notwithstanding anything to the contrary in the Revenue
25 Agreement, "Final Approval"by County with respect to Developer's Facilities means
26 that, based on the information in the documents required to be presented to the County
27 in paragraph (b), immediately above, the County Project Administrator is satisfied that
28 (i) Developer has provided a satisfactory Certificate of Operational Readiness; (ii)
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1 Developer has provided copies of the documents that are required by subparagraph (b),
2 immediately above; and (iii) there is no known uncured Event of Default on the part of
3 Developer under the Revenue Agreement. County's Final Approval of the Developer's
4 Facilities is strictly limited to such purposes, and does not mean that the County has
5 reviewed, approved, or accepted the Work or Developer's Facilities for any other
6 purposes, including, by way of example, and not as a limitation, the operations of
7 Developer's Facilities, or the ability of Developer's Facilities to perform under the
8 Revenue Agreement.
9 ARTICLE 18. INITIAL SWITCH OVER
10 18.1. Timing of Initial Switch Over. Subject to Developer's compliance with
11 Article 7, which shall precede the Parties entering into the Ground Lease, and to the
12 Parties entering into the Ground Lease, within thirty (30) calendar days of County's
13 Final Approval, the County shall, in accordance with its own procedures, switch over the
14 Allotted LFG from the County's LFG Management System to the Transfer Point for
15 transfer to the Developer.
16 ARTICLE 19. UTILITIES
17 19.1. Developer Obligations. Subject to Developer's compliance with Article
18 7, which shall precede the Parties entering into the Ground Lease, to the Parties
19 entering into the Ground Lease, and to Article 8 (Non-Interference by Developer's
20 Facilities), herein:
21 (a) Developer shall, at its sole cost and expense, directly obtain and
22 pay for all Utilities from third party providers of Utilities, maintain all necessary Utilities
23 for the Work, and be responsible for the operation and maintenance of the Developer's
24 Facilities; and
25 (b) Should Developer need any such Utilities for the Work, the
26 Developer's Facilities and/or the Premises, Developer shall be solely responsible for
27 making all arrangements to obtain such Utilities without County's assistance, including
28 obtaining a separate metering devices for Utility services; provided, however, electrical,
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1 natural gas, sewer, and water system interconnection plans must be submitted to
2 County and are subject to County's reasonable review and approval of the plans
3 therefor, which approval shall not be unreasonably withheld or delayed. All costs
4 associated with connection of the Work, the Developer's Facilities, and/or the Premises
5 to the water and electrical systems shall be borne solely by Developer.
6 19.2. Developer Contract with Utilities. Developer shall directly enter into an
7 LFG purchase agreement with a Utility, as needed, which can utilize the LFG in its
8 operations.
9 ARTICLE 20. TRANSFER POINT
10 20.1. Transfer Point. Subject to Developer's compliance with Article 7, which
11 shall precede the Parties entering into the Ground Lease, and to the Parties entering
12 into the Ground Lease, and to ensure minimum intrusion by Developer's Facilities into
13 County's operations of the Landfill, including County's LFG Management System, and
14 maximum ability of County to measure Allotted LFG, there shall be a single point of
15 transfer, which is a cross-sectional area of a header, as designated in the LFGTE
16 Project Plan ("Transfer Point"), for all Allotted LFG to pass from County to Developer
17 pursuant to this Article 20. The Transfer Point shall be at or within the boundary of the
18 Landfill as determined by the County.
19 20.2. Passage and Sale of Allotted LFG from County to Developer. Subject
20 to Developer's compliance with Article 7, which shall precede the Parties entering into
21 the Ground Lease, and to the Parties entering into the Ground Lease:
22 (a) All Allotted LFG sold by County to Developer, and purchased by
23 Developer from County, shall pass from the County's LFG Management System to, and
24 enter the Developer's Facilities at the Transfer Point.
25 (b) Title to, control, and possession of all such Allotted LFG sold and
26 purchased hereunder shall pass from County to Developer at the Transfer Point.
27 (c) Developer, upon such sale and purchase, shall have the sole right to the
28 Allotted LFG. Developer assumes the risk of loss and responsibility for all such Allotted
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1 LFG from and after the Transfer Point.
2 20.3. Alternate Transfer Point. Subject to Developer's compliance with Article
3 7, which shall precede the Parties entering into the Ground Lease, and to the Parties
4 entering into the Ground Lease, in the interest of accommodating County's operation of
5 the Landfill, including County's LFG Management System, the Parties, from time to
6 time, may mutually designate a temporary or permanent alternate Transfer Point at or
7 near the Premises, upon the prior written confirmation thereof in writing by County's
8 Director and Developer, which writing shall contain the similar level of specificity and
9 description of the Transfer Point. The Alternate Transfer Point shall be used to the
10 extent necessary and shall comply with the provisions which relate to the Transfer
11 Point.
12 20.4. County's On-Site Measurement of Allotted LFG. Subject to
13 Developer's compliance with Article 7, which shall precede the Parties entering into the
14 Ground Lease, and to the Parties entering into the Ground Lease, Developer
15 acknowledges and consents to County's right to monitor and verify on-site
16 measurements of Allotted LFG that is delivered to Developer at the Transfer Point with
17 respect to the flow of Allotted LFG, including, without limitation, reading meters and
18 installing and observing on-site monitoring equipment.
19 ARTICLE 21. RESERVED
20 ARTICLE 22. DEVELOPER'S USE OF PURCHASED LFG
21 22.1. Possession of Allotted LFG. Continuing throughout the Term, subject to
22 Developer's compliance with Article 7, which shall precede the Parties entering into the
23 Ground Lease, and to the Parties entering into the Ground Lease, Developer shall take
24 full possession of all Allotted LFG delivered by County at the Transfer Point, which LFG
25 shall be used, or a limited amount thereof may be combusted in accordance with all
26 Good Industry Practices, pursuant to the requirements of all Authorizations,
27 Governmental Approvals, and Applicable Laws and Regulations.
28 22.2. Reserved.
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1 ARTICLE 23. LFG MONITORING AND REPORTING
2 23.1. LFG Allocation Report. Subject to Developer's compliance with Article
3 7, which shall precede the Parties entering into the Ground Lease, and to the Parties
4 entering into the Ground Lease, County shall have the sole right and responsibility to
5 monitor, measure, calculate, and report the quantity of Allotted LFG that County makes
6 available to Developer's Facilities at the Transfer Point. Irrespective of any other
7 measuring and reporting devices that Developer might install and use at Developer's
8 Facilities, the County's installed mass flow meter and LFG analyzer shall be the sole
9 instruments to be used by the Parties for measuring and establishing the amount of
10 Allotted LFG sold and purchased under the Revenue Agreement.
11 23.2. Meters. Subject to Developer's compliance with Article 7, which shall
12 precede the Parties entering into the Ground Lease, and to the Parties entering into the
13 Ground Lease:
14 (a) County shall have the sole right and responsibility, at its sole cost and
15 expense, to select (which includes by way of example, and not as a limitation, County's
16 selection of the manufacturer, technology, and cost), provide, install, and replace a
17 mass flow meter to measure the quantity of Allotted LFG flowing through the Transfer
18 Point, expressed in cubic feet.
19 (b) The mass flow meter shall measure the quantity of the Allotted LFG at the
20 reasonably closest point to the Transfer Point as determined by County. County shall
21 have the sole right and responsibility, at its sole cost and expense, to operate and
22 maintain such mass flow meter.
23 (c) Developer shall cooperate fully with any such County on-site installation,
24 replacement, and operation of such mass flow meter and measurements undertaken by
25 County pursuant to this paragraph; provided, however, County shall not undertake any
26 such on-site measurement that unreasonably, directly, and materially interfere with
27 Developer's on-site operations of the Developer's Facilities.
28
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1 (d) At the Transfer point, County shall be given exclusive access to such on-
2 site monitoring equipment, and County may place locks, or other security devices on
3 such on-site monitoring equipment to ensure its sole control and protection, and the
4 integrity of such equipment.
5 23.3. Reserved.
6 23.4. Accuracy. The mass flow meter shall be accurate within one and one-
7 half percent (1-'/2 %), based on the full-range of the instrument's scale, above or below
8 the relevant manufacturer's specified maximum range of a standard deviation of
9 accuracy of such instrument. County shall, at its sole cost and expense, have sole right
10 and responsibility for calibrating any mass flow meters, but only if such calibration is
11 required by the manufacturer of such flow meters, and only as follows:
12 (a) County shall, within the intervals recommended by the relevant
13 manufacturer, in accordance with regulatory requirements, obtain an appropriate
14 certification of accuracy of the meters from a qualified third party tester, and promptly
15 provide the results thereof to Developer; and
16 (b) County shall have the sole right to change the calibration of such
17 mass flow meters, if and when County determines, in its sole and absolute discretion,
18 that such change is necessary or appropriate. County shall give Developer written
19 notice of any such change the calibration of such flow meters within five (5) Days after
20 making such change, which notice shall indicate what changes, if any, have been made,
21 allowing Developer to witness if requested.
22 Developer acknowledges that the provisions herein are adequate, fair, and
23 reasonable, that the foregoing accuracy of such instruments is sufficient, and that
24 County's process for ensuring such accuracy of such instruments is timely and sufficient
25 to ensure that the reported amount of Allotted LFG sold by County and purchased by
26 Developer will at all relevant times be accurately measured by such instruments, and
27 that such instruments are timely verified or adjusted. Developer also acknowledges that
28 it would be difficult, costly, time consuming, and disruptive to County's operation of the
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1 Landfill, including County's LFG Management System for County to otherwise
2 undertake any certification process, or to undergo a study of accuracy of such
3 instruments, at times that are more frequently than quarterly. Accordingly, Developer
4 agrees that it waives, and therefore shall not have, any right to challenge or otherwise
5 dispute the measurements of, or require County to change the calibration of, the mass
6 flow meters to be used by County to measure and report Allotted LFG regardless of any
7 measurement that Developer might report to County regarding the amount of Allotted
8 LFG made available by County at the Transfer Point.
9 23.5. Start-times, Intervals, and Redundancy. Subject to Developer's
10 compliance with Article 7, which shall precede the Parties entering into the Ground
11 Lease, and to the Parties entering into the Ground Lease:
12 (a) County shall have the sole right and responsibility of:
13 (i) selecting the start time for setting the initial reported
14 measurement of Allotted LFG;
15 (ii) selecting any re-started time for setting any subsequent
16 reported measurement of Allotted LFG, such as after resuming any period when there
17 has no Allotted LFG sold by County to Developer; and
18 (iii) selecting a reported measurement period other than a 15-
19 minute reported measurement period, but, in any event, such reported measurement
20 shall at least be hourly, if the County's selected meter does not measure such
21 frequency on a 15-minute interval, or if the 15-minute interval becomes unmanageable
22 for County's data processing; provided, however, in either such case, County shall give
23 Developer advance written notice of any changed reported measurement intervals of
24 any meter.
25 (b) If County desires to employ a redundant system for on-site
26 measurements of Allotted LFG that County makes available to Developer at the
27 Transfer Point, County shall only be required to use, and report Allotted LFG from only
28 one mass flow meter.
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1 23.6. Developer's SCADA Access. Subject to Developer's compliance with
2 Article 7, which shall precede the Parties entering into the Ground Lease, and to the
3 Parties entering into the Ground Lease:
4 (a) County, at its sole cost and expense, shall give Developer the revocable
5 privilege to access to County's SCADA reports, including instructions for such SCADA
6 access to allow Developer to remotely read (but not alter) County's data from
7 Developer's office, which is off site from the Landfill. County shall not be required to
8 pay for Developer's cost of such remote access or telephone service charges and fees
9 for accessing County's central facility management control system to obtain such
10 information.
11 (b) If Developer misuses the privilege of such SCADA access, as determined
12 by County, County instead may give Developer notice thereof and terminate
13 Developer's privilege of such SCADA access, and County thereafter will give Developer
14 written reports of any information which County has collected for any period within the
15 last thirty (30) calendar days, upon request by Developer. County may charge
16 Developer for the reasonable cost of providing such written reports; provided, however,
17 County shall continue to give Developer the LFG Allotment Report.
18 ARTICLE 24. OPERATIONS OF DEVELOPER'S FACILITIES
19 24.1. Premises Access. Subject to Developer's compliance with Article 7,
20 which shall precede the Parties entering into the Ground Lease, and to the Parties
21 entering into the Ground Lease, so long as there is not an Event of Default by
22 Developer under the Revenue Agreement, Developer shall have the right to conduct on
23 the Premises all operations necessary for or incidental to the Developer's Facilities of
24 Allotted LFG received by Developer at the Transfer Point, and paid for by Developer, as
25 provided in the Revenue Agreement. Without limiting the generality of the foregoing
26 sentence, subject to Developer's compliance with Article 7, which shall precede the
27
28
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1 Parties entering into the Ground Lease, and to the Parties entering into the Ground
2 Lease, Developer shall:
3 (a) Have and be granted access to the Premises only for activities
4 related to the operation of the Developer's Facilities, pursuant to the terms and
5 conditions of the Revenue Agreement. Developer shall require all of its representatives
6 to carry appropriate identification, such as badges.
7 (b) Take all reasonable precautions for the safety of personnel
8 performing operations and maintenance services with respect to Developer's Facilities,
9 all accordance with Good Industry Practices, pursuant to the requirements of all
10 Authorizations, Governmental Approvals, and Applicable Laws and Regulations.
11 (c) Receive prior written approval from County's Director before
12 performing any work, service, operation, or construction that otherwise would interfere
13 with, or adversely impact the Landfill, including County's operations of the County's LFG
14 Management System, or any closure or post closure activities; provided, however,
15 nothing herein shall obligate County's Director to give any such approval that is
16 inconsistent with the terms and conditions of the Revenue Agreement.
17 (d) For any Developer waste that is not accepted for disposal at the
18 Landfill, transport and dispose of such waste at an appropriate landfill, in compliance
19 with Governmental Approvals and Applicable Laws and Regulations.
20 (e) Be liable and pay County for the replacement cost, or cost of
21 repairs, for any damage or loss caused to the Landfill, including the County's LFG
22 Management System, and all of County's property located at the Landfill, by the gross
23 negligent or wrongful acts or omissions of Developer or its officers, employees,
24 contractors, consultants, or agents.
25 ARTICLE 25. DEVELOPER'S SAFETY INSPECTIONS AND REPORTS
26 25.1. Safety Inspections and Reports. Developer shall provide to the County
27 any and all of Developer's safety and inspection reports which are used in the
28 Developer's LFGTE Project Plan and which are referred to herein as Developer's
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1 Facilities.
2 ARTICLE 26. COORDINATION BY PARTIES
3 26.1. Coordination Protocols. Subject to Developer's compliance with Article
4 7, which shall precede the Parties entering into the Ground Lease, and, as a condition
5 precedent to the Parties entering into the Ground Lease, the Parties agree to ensure
6 that its respective officers, employees, agents, contractors, and consultants, shall
7 coordinate day-to-day operations through a point of contact with the management of the
8 other Party to avoid, to the maximum extent reasonably feasible under the
9 circumstances, interfering with the other Party's operation and maintenance of its
10 facilities at the Landfill. The Parties shall use the agreed upon coordination protocols
11 for coordinating their respective operation and maintenance of their respective facilities
12 at the Landfill, and planning for contingencies, including emergencies. The coordination
13 protocols shall include the provision for County's right to shut off the Throttle Valve in
14 the event of an emergency, such as a health and safety issue, as determined by
15 County.
16 26.2. Party Contact Information. Each of the Parties shall provide to the other
17 Party up-to-date telephone numbers, e-mail addresses, and other customary contact
18 information, for personnel of County and Developer needed for day-to-day routine
19 operations, and for immediate contact of such personnel in connection with health and
20 safety issues or conditions with respect to the Revenue Agreement. The initial points of
21 contact for each of the Parties is as follows:
22 For day-to-day routine operations:
23 County: Landfill Operations Manager
24 Developer: Protect Operations Manager
25 For immediate contact in connection with health and safety issues or conditions:
26 County (first contact): Landfill Operations Manager
27 County (second contact): Resources Division Manager
28 Developer (first contact): Protect Operations Manager
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1 Developer (second contact): President
2 The provisions of this Section are separate and apart from the provisions of
3 Section 41.8 for notices between the Parties. Each Party shall give notice to the other
4 Party, pursuant to Section 41.8 for any changes in their respective points of contact or
5 contact information, above.
6 26.3. LFG Migration or Emissions. If the County at any time determines that
7 underground migration or surface emissions of LFG from the Landfill exceed
8 permissible limits under any Governmental Approvals or Applicable Laws and
9 Regulations with respect to the Landfill, including the County's LFG Management
10 System, County shall use its reasonable efforts to investigate and determine the cause
11 for such migration or emissions. Developer shall cooperate with County in such
12 investigation, if County believes that Developer's Facilities, including Developer's
13 operations thereof may be causing or contributing to such problem. The Parties shall
14 mutually attempt to resolve such issues between themselves or through Article 36.
15 26.4. Cooperative Effort to Extinguish Fires or Subsurface Combustion. In
16 the event of a fire or subsurface combustion in any Module of the Landfill, Developer
17 agrees to cooperate with County in Developer's operation of Developer's Facilities in
18 order to allow such fires or subsurface combustion to be extinguished as soon as
19 practicable. County and Developer shall each bear the costs of extinguishing such fire
20 to the extent that such Party's actions caused the fire or subsurface combustion. If the
21 Parties cannot agree on an allocation of such costs, the matter shall be referred to
22 dispute resolution in accordance with Article 36 of the Revenue Agreement.
23 ARTICLE 27. COMPLIANCE WITH APPLICABLE LAWS AND REGULATION
24 27.1. Compliance. Regardless of the Allotted LFG-to-Energy Plan and any
25 Final Approval by County, Developer shall, at its sole cost and expense, be responsible
26 for:
27 (a) Ensuring that the Developer's Facilities shall continually comply
28 with the requirements of all Authorizations, Governmental Approvals, and Applicable
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1 Laws at all times during the Term. By way of example of the foregoing obligations of
2 Developer, and not as a limitation on any of Developer's obligations:
3 (i) Developer (including its officers, officials, agents,
4 employees, subcontractors, consultants, invitees, and other persons or entities for
5 whom Developer may be liable) shall, with respect to the Developer's Facilities, be
6 solely responsible for complying with all applicable air pollution control, air quality, and
7 air safety requirements under the Authorizations and Governmental Approvals issued
8 by, and Applicable Laws enforced by, any Governmental Enforcement Agency,
9 including, but not limited to, the San Joaquin Valley Air Pollution Control District (or its
10 successor governmental agency), and the local Regional Water Quality Control Board
11 (RWQCB) to the extent required by law; and
12 (ii) Developer (including its officers, officials, agents,
13 employees, subcontractors, consultants, invitees, and other persons or entities for
14 whom Developer may be liable), with respect to Developer's Work, and operation and
15 maintenance of Developer's Facilities, shall comply with all Applicable Laws and
16 Regulations with respect to Hazardous Materials.
17 (b) Ensuring that the Developer's Facilities, once it is completed, is free
18 of any condition or defect, which is known or should be known on reasonable
19 investigation, that may pose a significant threat to life, safety, or health.
20 27.2. Developer Continuing Responsibility. Subject to Developer's
21 compliance with Article 7, which shall precede the Parties entering into the Ground
22 Lease, and to the Parties entering into the Ground Lease, and continuing during the
23 Term, Developer shall also, at its sole cost and expense, be responsible for any
24 necessary replacement, restoration, repair, capital improvements, and retrofitting of,
25 and upgrade or enhancement to the Developer's Facilities, to the extent required by any
26 Authorizations, Governmental Approvals, and/or Applicable Laws and Regulations, to
27 ensure that Developer's Facilities continually comply with legal requirements and the
28 original Plans and Specifications at all times during the Term.
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1 27.3. Disclosure by Developer. Developer shall promptly, but not later than
2 three (3) Days after learning of such matter, provide County's Director a copy of any
3 inquiry, investigation, notice of any violation (or similar notice), proceeding, claim,
4 report, order, directive, demand, correspondence or other writing or requirement for any
5 violation or remedial action in connection with the Developer's Facilities by any
6 Governmental Enforcement Agency. The Developer's remedial action, correction, or
7 other response to such Governmental Enforcement Agency with respect to such inquiry,
8 investigation, notice of any violation (or similar notice), proceeding, claim, report, order,
9 directive, demand, correspondence or other writing or requirement shall be provided to
10 the County; provided, however, County's receipt of any such inquiry, investigation,
11 notice of any violation (or similar notice), proceeding, claim, report, order, directive,
12 demand, correspondence or other writing or requirement shall not obligate County in
13 any way whatsoever to assume Developer's duty to take any such actions.
14 27.4. Notice. Developer shall give County, including its agents, reasonable
15 advance written notice, but not earlier than three (3) Days, of the right to be present at
16 any meeting, or other personal communication through live means, including, but not
17 limited to, teleconferencing between Developer and any Governmental Enforcement
18 Agency concerning any matter that is the subject of Developer's activities pursuant to
19 the Revenue Agreement.
20 27.5. Documentary Information. Developer shall promptly, but not later than
21 three (3) Days after resolution of such matter, provide County with documentary
22 information, to the satisfaction of County that the regulatory matters have been
23 satisfactorily resolved, including, by way of example and not as a limitation, as follows:
24 (a) Any consultant reports, test results, or action plans indicating that
25 the matters which are the subject of Section 27.3, have been appropriately tested for,
26 studied, evaluated, assessed, and corrected, including compliance with all Applicable
27 Laws and Regulations; and
28
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1 (b) Any notice, correspondence, or other information, indicating that
2 the inquiry, investigation, notice of any violation (or similar notice), proceeding, claim,
3 report, order, directive, demand, correspondence or other writing or requirement by any
4 Governmental Enforcement Agency that the matter that is the subject of Section 27.3,
5 has been resolved to the satisfaction of such Governmental Enforcement Agency.
6 ARTICLE 28. MAINTENANCE
7 28.1. Maintenance. Subject to Developer's compliance with Article 7, which
8 shall precede the Parties entering into the Ground Lease, and to the Parties entering
9 into the Ground Lease, except for damage or loss arising out of the willful act or gross
10 negligence of County to the Developer's Facilities, Developer, at its sole cost and
11 expense, shall, in accordance with Good Industry Practices, pursuant to the
12 requirements of all Authorizations, Governmental Approvals, and Applicable Laws and
13 Regulations, be solely responsible for inspecting, maintaining, cleaning, restoring,
14 repairing, and replacing the Developer's Facilities, or applicable portions thereof, so that
15 the Developer's Facilities continually comply at all times during the Term with all
16 Authorizations and Governmental Approvals, and the requirements of all Applicable
17 Laws and Regulations, and so that the Developer's Facilities, as constructed in
18 accordance with the Revenue Agreement, including, but not limited to, the Plans and
19 Specifications to be approved by County (including any Change Orders and minor
20 changes to County-approved Plans and Specifications) continue to comply with the
21 Revenue Agreement. To this end, subject to Developer's compliance with Article 7,
22 which shall precede the Parties entering into the Ground Lease, and to the Parties
23 entering into the Ground Lease:
24 (a) Except for damage or loss arising out of the willful act or gross
25 negligence of County to the Developer's Facilities, Developer, at its sole cost and
26 expense, shall, in accordance with Good Industry Practices, pursuant to the
27 requirements of all Authorizations, Governmental Approvals, and Applicable Laws and
28
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1 Regulations, inspect, maintain, clean, repair, restore, and replace the Developer's
2 Facilities, or applicable portions thereof, so that:
3 (i) the Developer's Facilities are kept in a good and clean order,
4 repair, and condition at all times during the Term, according to the requirements of all
5 Authorizations, Governmental Approvals, and Applicable Laws and Regulations; and
6 (ii) the Developer's Facilities, at all times during the Term
7 comply with all requirements of all Authorizations, Governmental Approvals, and
8 Applicable Laws and Regulations. Without limiting the generality of the foregoing
9 provisions, except for damage or loss arising out of the willful act or gross negligence of
10 County to the Developer's Facilities, Developer's obligations for inspecting, maintaining,
11 cleaning, restoring, repairing, and replacing the Developer's Facilities and for ensuring
12 that the Developer's Facilities comply with all requirements of all Authorizations,
13 Governmental Approvals, and Applicable Laws and Regulations, shall include all
14 inspection, maintenance, cleaning, restoration, repair, and replacement of all structural
15 and nonstructural portions of the Developer's Facilities; all electrical systems, fire/life-
16 safety systems; and all fire suppression systems and alarms and smoke/fire alarm
17 systems, security systems, conduits (for the wiring and cabling for telephone and data
18 networks, including computers, cable, and Internet, and for security systems), lighting
19 fixtures and ballasts and annual servicing of fire extinguishers.
20 (b) Developer shall be responsible, at its sole cost and expense, for
21 maintaining, programming, keeping current, as applicable, upgrading, enhancing,
22 obtaining any necessary technical support for, correcting any errors or malfunctions of,
23 keeping current operating manuals of maintaining any and all computer systems
24 installed in or otherwise serving the Developer's Facilities, including all computer
25 hardware and software with respect to such computer systems necessary for the
26 operation of the Developer's Facilities at all times during the Term.
27 (c) Developer, at its sole cost and expense, shall maintain all licenses
28 and agreements for all software relating to Developer's Facilities, and shall timely make
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1 all payments thereof necessary to lawfully use all such software at all times during the
2 Term.
3 (d) Developer, at its sole cost and expense, shall maintain an adequate
4 inventory of, or reasonable and timely access to, essential spare parts and items of
5 equipment necessary to perform its obligations with respect to the Developer's
6 Facilities.
7 (e) Developer, at its sole cost and expense, shall maintain, and shall
8 cause all subcontractors and vendors to maintain, all required Governmental Approvals
9 for Developer's performance of its obligations with respect to the Developer's Facilities.
10 (f) Developer, at its sole cost and expense, shall maintain appropriate
11 records, and prepare and timely file any reports with appropriate agencies, including
12 Governmental Enforcement Agencies, as may be required by any Governmental
13 Approvals or Applicable Laws and Regulations, indicating work performed with respect
14 to the Developer's Facilities.
15 (g) Developer, at its sole cost and expense, shall supply all tools,
16 materials, electricity and services necessary for work performed with respect to the
17 Developer's Facilities.
18 (h) Developer, at its sole cost and expense, shall schedule for routine
19 work, hire and supervise appropriately trained and qualified employees, and engage
20 qualified subcontractors and vendors, as may be necessary for the performance of
21 Developer's obligations with respect to the Developer's Facilities.
22 (i) Developer shall give County the following written notices related to
23 any maintenance, repair, restoration, replacement of the Developer's Facilities, or any
24 portions thereof for the purpose of ensuring that County's operations of the Landfill,
25 including the County's LFG Management System, are not disrupted:
26 (i) for scheduled maintenance, cleaning, repair, restoration,
27 replacement of the Developer's Facilities, or any portions thereof, such notice shall be
28 given at least five (5) Days prior to such event.
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1 (ii) for any unscheduled maintenance, cleaning, repair,
2 restoration, replacement of the Developer's Facilities, or any portions thereof, such
3 notice shall endeavor to be given at least twenty-four hours prior to such event.
4 (iii) for any emergency maintenance, cleaning, repair,
5 restoration, replacement of the Developer's Facilities, or any portions thereof, such
6 notice shall be given immediately prior to such event.
7 0) At the request of any Governmental Enforcement Agency,
8 Developer shall promptly provide any necessary reports, certifications, or other licenses,
9 if any, required by any such Governmental Enforcement Agency, including but not
10 limited to, any request by the Fire Marshal or the San Joaquin Valley Air Pollution
11 Control District (or its successor governmental agency), and shall provide a copy
12 thereof to County's Director at such time.
13 (k) Developer shall provide County's Director a copy of any order,
14 directive, demand, notice, or requirement for any violation or remedial action in
15 connection with the Developer's Facilities of any Governmental Enforcement Agency
16 and Developer's remedial action, correction, or other response to such Governmental
17 Enforcement Agency with respect to such order, directive, demand, notice, or
18 requirement; provided, however, County's receipt of any such order, directive, demand,
19 notice, or requirement shall not obligate County in any way whatsoever to assume
20 Developer's duty to take any such actions.
21 (1) Developer, at its sole cost and expense, in furtherance of, and not
22 as a limitation on, performing a portion of its obligations shall inspect, replace, reinstall,
23 reapply, or conduct preventative maintenance for key equipment and materials in the
24 Developer's Facilities at the minimum intervals therefor, respectively, as recommended
25 by the equipment manufacturers.
26 ARTICLE 29. DEVELOPER'S FINANCING
27 29.1. Developer's Financing. Developer shall submit to County a feasible
28 financing plan for the Project. Developer shall also provide to County the ability to
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1 review financial records, including audited and unaudited financial statements, profit and
2 loss statements, and payment history (collectively, "financial records"). In addition,
3 Developer shall also provide copies of such financial records to the extent they are not
4 confidential such as records which are already disclosable to regulatory agencies.
5 County reserves the right to engage, at its own expense, expert consultants to evaluate
6 the feasibility of such financing plans. Developer shall allow County, or the County's
7 consultants to review, inspect and copy financial records as deemed necessary by the
8 County, for the purpose of assessing the Developer's financial stability and ability to
9 perform pursuant to the Agreement. At County's request, not more than annually,
10 Developer, at County's cost, shall provide to County, a Dun & Bradstreet information
11 report.
12 ARTICLE 30. RENEWABLE ENERGY CERTIFICATES (RECS)
13 30.1. Developer Owns RECs, RINs for Allotted LFG. For any Allotted LFG
14 that the Developer purchases from the County under the Revenue Agreement, County
15 does not claim any right or title to or interest in any renewable energy certificates,
16 renewable identification numbers, allowances, tax credits, or other similar intangible
17 benefits that may be sought from or granted by third parties, including governmental
18 agencies (collectively, "RECs" and/or "RINs") that are attributable to renewable energy
19 benefits that may be generated by Developer's Facilities. Developer shall solely assume
20 all responsibility for, and all risks of loss, with respect all such RECs and/or RINs.
21 County has not assumed any responsibility for monitoring Developer's use or transfer of
22 any such RECs.
23 30.2. RECs Not a Substitute for Developer Payments. Developer shall not
24 use any RECs/RINs as a substitute for paying County for Remittance of Net Proceeds,
25 or for paying the County any liquidated damages that may become due to the County
26 under the Revenue Agreement, or any other payments that may be due to the County.
27 30.3. No County Warranties. The County makes no representation, warranty
28 or guarantee, whether express or implied, with respect to any RECs/RINs, including but
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1 not limited to (a) whether the Revenue Agreement, including Developer's Facilities, will
2 qualify for, or be entitled to receive, any amount of any RECs/RINs; (b) the present or
3 future value or transferability of any RECs/RINs, if any, that might be obtained by
4 Developer with respect to the Revenue Agreement; (c) if any RECs/RINs are available
5 for Developer's Project; and (d) any minimum amount of Allotted LFG that the County
6 will sell to Developer, and Developer may purchase from County, at any time under the
7 Revenue Agreement.
8 ARTICLE 31. OWNERSHIP
9 31.1. Ownership of Documents. Any and all Approved Plans and
10 Specifications, and other computations, reports, documents, materials, sketches,
11 drawings, field notes, and record drawings for the development, engineering, design,
12 construction, installation, completion, and implementation of the Developer's Facilities
13 whether any or all of such items are in hardcopy form or electronic form, prepared by
14 Developer specifically for Developer's performance of the Revenue Agreement shall
15 become the sole property of Developer. All Approved Plans and Specifications will be
16 provided to County and copies of other documents in this Section 31.1 will be provided to
17 County.
18 ARTICLE 32. HAZARDOUS MATERIALS
19 32.1. Hazardous Materials. Developer shall not cause or allow any Hazardous
20 Material to be generated, handled, brought onto, used, stored, treated, or transported in
21 or about the Landfill, including the Premises by Developer, or its officers, agents,
22 employees, subcontractors, or invitees, except only for such quantities of Hazardous
23 Materials that are reasonably required in the ordinary course of Developer's authorized
24 uses conducted on the Leased Premises, subject to this Article 32. To that end:
25 (a) Developer shall not dispose of any Hazardous Materials at the
26 Landfill.
27 (b) Upon the Effective Date, Developer shall provide County with a list,
28 including estimated quantities, of all such Hazardous Materials that are or are planned
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1 to be generated, handled, brought onto, used, stored, treated, or transported in or about
2 the Premises by Developer, or its officers, agents, employees, subcontractors, or
3 invitees. During the Term, Developer shall provide County with an update of the
4 Hazardous Materials list, including estimated quantities, on each anniversary of the
5 Effective Date, and prior to each time that any new Hazardous Materials are or are
6 planned to be brought onto, used, stored, treated, or transported in or about the
7 Premises by Developer, or its officers, agents, employees, subcontractors, or invitees.
8 (c) Developer represents, warrants and covenants that it shall, at its
9 sole cost and expense, generate, handle, bring onto, use, store, treat, and transport all
10 such Hazardous Materials in or about the Landfill, including the Premises, and detect,
11 remove, and contain all such Hazardous Materials, strictly in accordance with Good
12 Industry Practices and pursuant to the requirements of all Authorizations, Governmental
13 Approvals, and Applicable Laws and Regulations concerning Hazardous Materials.
14 (d) Developer shall otherwise strictly comply at all times with all
15 requirements of all Authorizations, Governmental Approvals, and Applicable Laws and
16 Regulations with respect to Hazardous Materials.
17 32.2. Notices and Action. If, during the Term, Developer becomes aware of
18 (i) any actual or threatened release, discharge, leak, spill, or other adverse effect upon
19 the environment of any Hazardous Materials on, under, or about the Landfill, including
20 the Premises, or (ii) any inquiry, investigation, notice of any violation (or similar notice),
21 proceeding, claim, report, order, directive, demand, correspondence or other writing or
22 requirement, by any Governmental Enforcement Agency or other person regarding the
23 presence of Hazardous Materials on, under, or about the Landfill, including the
24 Premises:
25 (a) Developer shall promptly give County written notice of the
26 occurrence of any such matter in Section 32.2 herein, but not later than three (3) Days
27 after learning of such matter, and shall simultaneously furnish to County copies of any
28 such inquiry, investigation, notice of violation (or similar notice), proceeding, claim,
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1 report, order, directive, demand, correspondence or other writing or requirement, and
2 supporting documentary information, received or issued by Developer concerning such
3 matter; and
4 (b) For any actual or threatened release, discharge, leak, spill, or other
5 adverse effect upon the environment of any Hazardous Materials on, under, or about
6 the Landfill, including the Premises, Developer, at its sole cost and expense, shall
7 undertake any and all corrective actions necessary to:
8 (i) Test for, study, evaluate, assess, monitor, remediate such
9 actual or threatened release, discharge, leak, spill, or other adverse effect upon the
10 environment of any Hazardous Materials, and plan for same (including, but not limited
11 to, developing a corrective action plan for environmental cleanup of any release,
12 discharge, leak, spill, or other adverse effect upon the environment of Hazardous
13 Materials) strictly at all times with all requirements of all Authorizations, Governmental
14 Approvals, and Applicable Laws and Regulations concerning Hazardous Materials;
15 (ii) Cleanup of environment with respect to any such actual
16 release, discharge, leak, spill, or other adverse effect upon the environment of
17 Hazardous Materials, and dispose of same (provided that Developer shall not dispose
18 of any Hazardous Materials at the Landfill) strictly at all times with all requirements of all
19 Authorizations, Governmental Approvals, and Applicable Laws and Regulations
20 concerning Hazardous Materials;
21 (iii) Protect against such actual or threatened release, discharge,
22 leak, spill, or other adverse effect upon the environment of Hazardous Materials strictly
23 at all times with all requirements of all Authorizations, Governmental Approvals, and
24 Applicable Laws and Regulations concerning Hazardous Materials; and
25 (iv) Provide County with documentary information, to the
26 satisfaction of County that such actual threatened release, discharge, leak, spill, or
27 other adverse effect upon the environment of Hazardous Materials has been
28 satisfactorily addressed, remediated, or otherwise cleaned up, as applicable, pursuant
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1 to the requirements of this Article 32, including by way of example, and not as a
2 limitation, as follows:
3 (1) Any consultant reports, test results, or action plan
4 indicating that such actual or threatened release, discharge, leak, spill, or other adverse
5 effect upon the environment of Hazardous Materials has been appropriately tested for,
6 studied, evaluated, assessed, monitored, remediated, or otherwise cleaned up, as
7 applicable, pursuant to all Applicable Laws and Regulations with respect to Hazardous
8 Materials; and/or
9 (2) Any notice, correspondence, or other information,
10 indicating that the inquiry, investigation, notice of any violation (or similar notice),
11 proceeding, claim, report, order, directive, demand, correspondence or other writing or
12 requirement by any Governmental Enforcement Agency has been resolved to the
13 satisfaction of such Governmental Enforcement Agency.
14 (c) Developer shall give County, including its agents, reasonable
15 advance written notice, with a minimum of three (3) Days' notice of the right to be
16 present at any meeting, or other personal communication through live means, including,
17 but not limited, to teleconferencing between Developer and any Governmental
18 Enforcement Agency concerning any matter that is the subject of any inquiry,
19 investigation, notice of any violation (or similar notice), proceeding, claim, report, order,
20 directive, demand, correspondence or other writing or requirement by any
21 Governmental Enforcement Agency with respect to Hazardous Materials.
22 32.3. Environmental Remediation of Premises. Subject to Developer's
23 compliance with Article 7, which shall precede the Parties entering into the Ground
24 Lease, and to the Parties entering into the Ground Lease, and prior to construction, the
25 County, at its cost, shall provide to Developer a Phase 1 environmental site assessment
26 of the Premises which shall serve as the baseline for the environmental condition of the
27 Premises that existed as of the Effective Date (baseline assessment). The Developer
28 shall restore the environmental condition of the Premises to its condition as it existed as
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1 of the Effective Date. Prior to Developer vacating the Premises, the Developer shall, at
2 its sole cost and expense, submit to County funding to undertake a Phase 1
3 environmental site assessment of the Premises from an environmental company
4 approved by the County (Developer assessment). The County shall determine and the
5 Developer shall perform, based upon the County's review of the baseline assessment
6 and the Developer assessment, the remediation necessary for the Developer to fully
7 restore the Premises. Verification of full remediation shall be confirmed by the County
8 and in compliance with all Applicable Laws and Regulations. Nothing herein shall be
9 deemed to waive or release any bonds and insurance, the terms of which survive the
10 termination of the Agreement.
11 32.4. Duration. The provisions of this Article 32 shall survive the termination of
12 the Revenue Agreement.
13 ARTICLE 33. INDEMNIFICATION AND DEFENSE
14 33.1.A Developer's Indemnification and Defense. Developer agrees to and
15 shall indemnify, save, protect, hold harmless, and at County's written request, defend
16 County, including its officers, officials, agents, and employees from and against any and
17 all demands, costs and expenses, penalties, fines, forfeitures, attorney's fees and costs,
18 consultant and expert fees and costs, damages of any nature whatsoever (including,
19 without limitation, death or injury to persons, sickness or disease, or injury or damage to
20 or loss or destruction of property, including diminution of value of the Landfill, the
21 County's LFG Management System, or the Premises), administrative rulings or orders
22 (including but not limited to amounts paid in settlement or discharge thereof), judgments
23 (including but not limited to amounts paid in settlement or discharge thereof), liabilities,
24 claims and losses, suits, actions or proceedings of every name, kind and description
25 occurring or resulting to County, including its officers, officials, agents, and employees,
26 arising out of or in connection with the performance, or failure to perform, by Developer
27 (including its officers, officials, agents, employees, subcontractors, consultants, invitees,
28
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1 or other persons or entities for whom Developer may be liable) under or in connection
2 with the Revenue Agreement.
3 The provisions of this Section 33.1.A shall not apply to any such demands, costs
4 and expenses, penalties, attorney's fees and costs, damages, judgments, liabilities,
5 claims and losses, suits, actions or proceedings resulting from any wrongful or grossly
6 negligent act or omission of County, including its officers, officials, agents, or
7 employees.
8 Developer's obligations under this Section 33.1.A shall include and cover
9 Developer's provision of improper, defective or nonconforming materials, equipment,
10 and goods used in connection with the Work, or the performance of any of Developer's
11 obligations under the Revenue Agreement.
12 In any and all claims, actions, proceedings or suits against the County, including
13 its officers, officials, agents, and employees, and initiated by any employee of
14 Developer or any subcontractors, or by anyone directly or indirectly employed by any of
15 them or anyone for whose acts or omissions any of them may be liable, the
16 indemnification and defense obligation set forth in this Section 33.1.A shall not be
17 limited in any way by any limitation on the amount or type of damages, compensation,
18 or benefits payable by or for Developer or any subcontractors of any tier under Worker's
19 Compensation Acts, disability benefit acts, or other employee benefit acts.
20 The provisions of this Section 33.1.A shall survive the termination of the Revenue
21 Agreement.
22 33.1.B County's Indemnification and Defense. County agrees to and shall
23 indemnify, save, protect, hold harmless, and at Developer's written request, defend
24 Developer, including its officers, officials, agents, and employees from and against any
25 and all demands, costs and expenses, penalties, fines, forfeitures, attorney's fees and
26 costs, consultant and expert fees and costs, damages of any nature whatsoever
27 (including, without limitation, death or injury to persons, sickness or disease, or injury or
28 damage to or loss or destruction of property, including diminution of value Developers
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1 Facility, the County's LFG Management System, or the Premises), administrative
2 rulings or orders (including but not limited to amounts paid in settlement or discharge
3 thereof), judgments (including but not limited to amounts paid in settlement or discharge
4 thereof), liabilities, claims and losses, suits, actions or proceedings of every name, kind
5 and description occurring or resulting to Developer, including its officers, officials,
6 agents, and employees, arising out of or in connection with the performance, or failure
7 to perform, by County (including its officers, officials, agents, employees,
8 subcontractors, consultants, invitees, or other persons or entities for whom County may
9 be liable) under or in connection with the Revenue Agreement.
10 The provisions of this Section 33.1.13 shall not apply to any such demands, costs
11 and expenses, penalties, attorney's fees and costs, damages, judgments, liabilities,
12 claims and losses, suits, actions or proceedings resulting from any wrongful or grossly
13 negligent act or omission of Developer, including its officers, officials, agents, or
14 employees.
15 County's obligations under this Section 33.1.13 shall include and cover County's
16 provision of improper, defective or nonconforming materials, equipment, and goods to
17 the extent used in connection with the Work with permission of the County, or the
18 performance of any of County's obligations under the Revenue Agreement.
19 In any and all claims, actions, proceedings or suits against the Developer,
20 including its officers, officials, agents, and employees, and initiated by any employee of
21 County or any subcontractors, or by anyone directly or indirectly employed by any of
22 them or anyone for whose acts or omissions any of them may be liable, the
23 indemnification and defense obligation set forth in this Section 33.1.13 shall not be
24 limited in any way by any limitation on the amount or type of damages, compensation,
25 or benefits payable by or for County or any subcontractors of any tier under Worker's
26 Compensation Acts, disability benefit acts, or other employee benefit acts.
27 The provisions of this Section 33.1.13 shall survive the termination of the Revenue
28 Agreement.
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1 33.2.A Developer's Environmental Indemnification and Defense. Developer
2 agrees to and shall indemnify, save, protect, hold harmless, and defend County,
3 including its officers, officials, agents, and employees, from and against any and all
4 demands, costs and expenses (including, without limitation environmental response,
5 clean up, remediation, removal, and site assessment costs and expenses), penalties,
6 fines, forfeitures, attorney's fees and costs, consultant and expert fees and costs,
7 damages of any nature whatsoever (including, without limitation, death or injury to
8 persons, sickness or disease, or injury or damage to or loss or destruction of property,
9 including diminution of value of the Landfill, the County's LFG Management System, or
10 the Premises, and contamination of groundwater, soils, and atmosphere), administrative
11 rulings or orders (including but not limited to amounts paid in settlement or discharge
12 thereof), judgments (including but not limited to amounts paid in settlement or discharge
13 thereof), liabilities, claims and losses, suits, actions or proceedings of every name, kind
14 and description occurring or resulting to County, including its officers, officials, agents,
15 and employees, arising out of or in connection with the performance, or failure to
16 perform, by Developer as described and stated in this Revenue Agreement (including its
17 officers, officials, agents, employees, subcontractors, consultants, invitees, or other
18 persons or entities for whom Developer may be liable) under or in connection with
19 Article 32 (Hazardous Materials) and/or Article 27 (Compliance with Applicable Laws
20 and Regulations) with respect to Hazardous Materials, or the release, discharge, leak,
21 spill, or other adverse effect upon the environment of any Hazardous Materials on,
22 under, or about the Premises, and from and against any and all demands, costs and
23 expenses (including, without limitation environmental response, clean up, remediation,
24 removal, and site assessment costs and expenses), penalties, fines, forfeitures,
25 attorney's fees and costs, consultant and expert fees and costs, damages of any nature
26 whatsoever (including, without limitation, death or injury to persons, sickness or
27 disease, or injury or damage to or loss or destruction of property including further
28 contamination of groundwater, soils, and atmosphere), administrative rulings or orders
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1 (including but not limited to amounts paid in settlement or discharge thereof), judgments
2 (including but not limited to amounts paid in settlement or discharge thereof), liabilities,
3 claims and losses, suits, actions or proceedings of every name, kind and description
4 occurring or resulting to any person, firm, corporation, or entity who may be injured or
5 damaged (including, without limitation, death or injury to persons, sickness or disease,
6 or injury or damage to or loss or destruction of property including further contamination
7 of groundwater, soils, and atmosphere) arising out of or in connection with the
8 performance, or failure to perform, by Developer (including its officers, officials, agents,
9 employees, subcontractors, consultants, invitees, or other persons or entities for whom
10 Developer may be liable) under or in connection with Article 32 (Hazardous Materials)
11 and/or Article 27 (Compliance with Applicable Laws and Regulations) with respect to
12 Hazardous Materials, or the release, discharge, leak, spill, or other adverse effect upon
13 the environment of any Hazardous Materials on, under, or about the Landfill, including
14 the Premises.
15 The provisions of this Section 33.2.A shall not apply to any such demands, costs
16 and expenses, penalties, attorney's fees and costs, damages, judgments, liabilities,
17 claims and losses, suits, actions or proceedings resulting from any preexisting
18 environmental conditions on, under, or about the Landfill, including the Premises or any
19 wrongful or grossly negligent act or omission of County, including its officers, officials,
20 agents, or employees, or from any matter for which County is obligated under Section
21 33.2 B, herein.
22 The provisions of this Section 33.2.A are in addition to and supplement the
23 provisions in Section 33.1 .A, herein.
24 The provisions of this Section 33.2.A shall survive the termination of the Revenue
25 Agreement.
26 33.2.113 County's Environmental Indemnification and Defense. County agrees
27 to and shall indemnify, save, protect, hold harmless, and at Developer's request, defend
28 Developer, including its officers, officials, agents, and employees, from and against any
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1 and all demands, costs and expenses (including, without limitation environmental
2 response, clean up, remediation, removal, and site assessment costs and expenses),
3 penalties, fines, forfeitures, attorney's fees and costs, consultant and expert fees and
4 costs, damages of any nature whatsoever (including, without limitation, death or injury
5 to persons, sickness or disease, or injury or damage to or loss or destruction of
6 property, including diminution of value of Developer's Facility, the Developer's LFG
7 Management System, or the Premises, and contamination of groundwater, soils, and
8 atmosphere), administrative rulings or orders (including but not limited to amounts paid
9 in settlement or discharge thereof), judgments (including but not limited to amounts paid
10 in settlement or discharge thereof), liabilities, claims and losses, suits, actions or
11 proceedings of every name, kind and description occurring or resulting to Developer,
12 including its officers, officials, agents, and employees, arising out of or in connection
13 with the performance, or failure to perform, by County as described and stated in this
14 Revenue Agreement (including its officers, officials, agents, employees, subcontractors,
15 consultants, invitees, or other persons or entities for whom County may be liable) under
16 or in connection with Article 32 (Hazardous Materials) and/or Article 27 (Compliance
17 with Applicable Laws and Regulations) with respect to Hazardous Materials, or the
18 release, discharge, leak, spill, or other adverse effect upon the environment of any
19 Hazardous Materials on, under, or about the Premises, and from and against any and
20 all demands, costs and expenses (including, without limitation environmental response,
21 clean up, remediation, removal, and site assessment costs and expenses), penalties,
22 fines, forfeitures, attorney's fees and costs, consultant and expert fees and costs,
23 damages of any nature whatsoever (including, without limitation, death or injury to
24 persons, sickness or disease, or injury or damage to or loss or destruction of property
25 including further contamination of groundwater, soils, and atmosphere), administrative
26 rulings or orders (including but not limited to amounts paid in settlement or discharge
27 thereof), judgments (including but not limited to amounts paid in settlement or discharge
28 thereof), liabilities, claims and losses, suits, actions or proceedings of every name, kind
96
1 and description occurring or resulting to any person, firm, corporation, or entity who may
2 be injured or damaged (including, without limitation, death or injury to persons, sickness
3 or disease, or injury or damage to or loss or destruction of property including further
4 contamination of groundwater, soils, and atmosphere) arising out of or in connection
5 with the performance, or failure to perform, by County (including its officers, officials,
6 agents, employees, subcontractors, consultants, invitees, or other persons or entities for
7 whom County may be liable) under or in connection with Article 32 (Hazardous
8 Materials) and/or Article 27 (Compliance with Applicable Laws and Regulations) with
9 respect to Hazardous Materials, or the release, discharge, leak, spill, or other adverse
10 effect upon the environment of any Hazardous Materials on, under, or about the Landfill,
11 including the Premises.
12 The provisions of this Section 33.2.13 shall not apply to any such demands, costs
13 and expenses, penalties, attorney's fees and costs, damages, judgments, liabilities,
14 claims and losses, suits, actions or proceedings resulting from any wrongful or grossly
15 negligent act or omission of Developer, including its officers, officials, agents, or
16 employees, or from any matter for which Developer is obligated under Section 33.2 B,
17 herein.
18 The provisions of this Section 33.2.13 are in addition to and supplement the
19 provisions in Section 33.1.13, herein.
20 The provisions of this Section 33.2.13 shall survive the termination of the Revenue
21 Agreement.
22 33.3. Developer's Intellectual Property Indemnification and Defense. In the
23 event of a claim of alleged infringement of patent rights, copyright, trade secret rights, or
24 other intellectual property rights, Developer agrees to and shall indemnify, save, protect,
25 hold harmless, and at County's request, defend County, including its officers, officials,
26 agents, and employees, from and against any and all demands, costs and expenses,
27 penalties, fines, forfeitures, attorney's fees and costs, consultant and expert fees and
28 costs, damages of any nature whatsoever (including, without limitation, injury or
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1 damage to or loss or destruction of property), administrative rulings or orders (including
2 but not limited to amounts paid in settlement or discharge thereof), judgments (including
3 but not limited to amounts paid in settlement or discharge thereof), liabilities, claims and
4 losses, suits, actions or proceedings of every name, kind and description occurring or
5 resulting to County, out of or in connection with any claim that is based on the
6 infringement (or assertions of infringement) of any of patent rights, copyright, trade
7 secret rights, or other intellectual property rights with respect to the Developer's
8 Facilities, including, but not limited to, their materials, engineering, designs, techniques,
9 processes and information supplied or used by Developer or any subcontractors of any
10 tier in performing or providing any portion of the Work under the Revenue Agreement,
11 or in Developer performing any other obligation under the Revenue Agreement with
12 respect to Developer's Facilities. If, in any suit, action, proceeding or claim relating to
13 any of the foregoing, a temporary restraining order or preliminary injunction is granted,
14 Developer shall make every diligent and reasonable effort to secure the suspension of
15 the injunction or restraining order.
16 If, in any such suit, action proceeding or claim, the Developer's Facilities, or any
17 part, combination or process thereof, is held to constitute an infringement and its use is
18 enjoined, Developer, at its sole cost and expenses, shall immediately pay the
19 reasonable costs and expenses to secure a license to use such infringing work. If
20 Developer, after undertaking diligent efforts, is unable to secure such license within a
21 reasonable time, Developer, at its sole cost and expense and without impairing
22 performance requirements of the Developer's Facilities under the Revenue Agreement,
23 shall either modify the infringing work, or part, combination, or process thereof, so that it
24 becomes non-infringing, or replace the infringing work, or part, combination, or process
25 thereof, with non-infringing components or parts so that it becomes non-infringing.
26 The provisions of this Section 33.3 are in addition to and supplement the
27 provisions in this Article 33.
28
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1 The provisions of this Article 33 shall survive the termination of the Revenue
2 Agreement.
3 ARTICLE 34. INSURANCE, RISK OF LOSS, BONDS, PERFORMANCE
4 SECURITY
5 34.1. Insurance Coverages. At all times during the Term, and without limiting
6 County's right to obtain indemnification from Developer or any third parties, Developer
7 shall furnish to County, at no cost to County, certificates of insurance, and upon
8 request, formal endorsements, for the following insurance policies which Developer
9 shall keep in full force and effect at all times stated herein, and for such additional time
10 as may be specified herein with respect to a particular type of policy:
11 (a) Commercial general liability insurance or comprehensive general
12 liability insurance, with limits of not less than three million dollars ($3,000,000) per
13 occurrence with an annual aggregate of five million dollars ($5,000,000), naming
14 County, its officers, agents, and employees, collectively and individually, as an
15 additional insured, but only insofar as Developer's operations under the Revenue
16 Agreement are concerned. Such coverage for additional insured shall apply as primary
17 insurance and any other insurance, or self insurance, maintained by County, its officers,
18 agents, and employees shall be excess only and not contributing with insurance
19 provided under Developer's policies herein.
20 (i) This insurance policy shall be issued on a "per occurrence"
21 basis.
22 (ii) This insurance policy shall include coverage for bodily injury,
23 broad form property damage, personal injury, products and completed operations, and
24 blanket contractual coverage including, but not limited to, liability assumed under any
25 indemnity provisions, which coverage shall be at least as broad as Insurance Services
26 Office, Inc., Policy Form CG 00011093.
27 (b) Property insurance: Developer shall maintain a policy of "all risk"
28 property insurance covering all County-owned personal property used or connected to
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1 County's operations at the Landfill, including any such County-owned personal property
2 related to the County's LFG Management System. Developer shall name County as an
3 additional loss payee on this policy. This policy shall be written for replacement value
4 for all such County personal property.
5 (c) Comprehensive automobile liability insurance with limits for bodily
6 injury of not less than two hundred fifty thousand dollars ($250,000) per person, one
7 million dollars ($1,000,000) per accident and for property damages of not less than five
8 hundred thousand dollars ($500,000), or such coverage with a combined single limit of
9 one million dollars ($1,000,000). Such coverage shall include both Developer-owned
10 and non-owned vehicles.
11 (d) Environmental impairment (pollution) liability insurance: Developer
12 shall maintain environmental impairment (pollution) liability insurance with limits of not
13 less the three million dollars ($3,000,000) per occurrence and an annual aggregate of
14 not less than five million dollars ($5,000,000), including clean-up costs. The policy shall
15 be written on claims made basis.
16 (e) Special endorsements or a separate policy covering explosion and
17 subsequent environmental damages with limits not less than three million dollars
18 ($3,000,000) per occurrence and five million dollars ($5,000,000) annual aggregate.
19 (f) Professional liability insurance with limits not less than one million
20 dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) annual
21 aggregate. Developer shall provide a vicarious interest endorsement to the professional
22 liability insurance policy, indemnifying County, its officers, agents, and employees for
23 liabilities, damages, and/or judgment, and reasonable attorney's fees and related costs
24 (i) to the proportionate extent caused by the grossly negligent errors, acts, or omissions
25 of Developer and (ii) in excess of the deductible obligation and subject to all of the
26 terms, conditions and exclusions of the professional liability insurance policy. The
27 policy or policies of professional liability with the foregoing minimum limits shall be
28
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1 maintained in full force and effect for a period of not less than five (5) years from the
2 County's acceptance of Developer's Facilities.
3 (g) Worker's Compensation insurance policy as required by the
4 California Labor Code.
5 (h) If Developer's operation is to include the transportation of
6 compressed gasses or similar hazardous materials, Developer, or its contractors who
7 transport compressed gasses or similar hazardous materials over the road, shall
8 maintain, in addition to all other coverages required herein, a policy for transporter
9 pollution liability and one of the following: MCS-90 endorsement with sudden and
10 accidental pollution endorsement or "automobile endorsement A," or a California 9948
11 endorsement with limits of not less than five million dollars ($5,000,000) combined
12 single limit.
13 (i) At five (5) year intervals during the Term, the County shall have the
14 right to require additional insurance coverages, as determined by the County's
15 insurance representatives, based upon factors derived from the insurance market for
16 the activities described in the Revenue Agreement to adequately insure against risk to
17 the County.
18 34.2. Endorsements and Additional Insured. Developer shall obtain
19 endorsements to the commercial general liability insurance, required herein, naming the
20 County of Fresno, its officers, agents, and employees, individually and collectively, as
21 additional insured, but only insofar as Developer's operations under the Revenue
22 Agreement are concerned. Such coverage for additional insured shall apply as primary
23 insurance and any other insurance, or self-insurance, maintained by County, its officers,
24 agents and employees shall be excess only and not contributing with insurance
25 provided under Developer's policies herein.
26 34.3. Required Notices. This insurance shall not be cancelled or changed
27 without a minimum of thirty (30) calendar days advance written notice given to County.
28
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1 34.4. Delivery of Certificates and Endorsements. In compliance with Section
2 3.1 (Conditions Precedent to Effective Date), Developer shall provide the certificates of
3 insurance and endorsements as stated above for all of the foregoing policies, as
4 required herein, to the County of Fresno, Resources Division, stating that such
5 insurance coverages have been obtained and are in full force; that the County of
6 Fresno, its officers, agents and employees will not be responsible for any premiums on
7 the policies; that such commercial general liability insurance names the County of
8 Fresno, its officers, agents and employees, individually and collectively, as additional
9 insureds, but only insofar as Developer's operations under the Revenue Agreement are
10 concerned; that such coverage for additional insured shall apply as primary insurance
11 and any other insurance, or self-insurance, maintained by County of Fresno, its officers,
12 agents and employees, shall be excess only and not contributing with insurance
13 provided under Developer's policies herein; and that this insurance shall not be
14 cancelled or changed without a minimum of thirty (30) calendar days advance, written
15 notice given to the County of Fresno.
16 34.5. Failure to Keep Insurance Coverages. In the event that Developer fails
17 to keep in effect at all times all of the insurance coverages as herein required, County
18 may, in addition to other remedies it may have, suspend or terminate the Revenue
19 Agreement upon the occurrence of any such event.
20 34.6. Admitted Insurers. All insurance policies herein shall be provided by
21 admitted insurers licensed to do business in the State of California and shall be
22 purchased from companies possessing a current A. M. Best, Inc. rating of A FSC VII or
23 better.
24 34.7. Developer's Overhead Expense. All insurance coverages, including
25 delivery of evidence of certificates and endorsements, required to be provided by
26 Developer herein shall be considered part of Developer's overhead, and shall be part of
27 Developer's overhead costs and expenses, for which Developer shall be solely
28 responsible.
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1 34.8. Risk of Loss. Developer shall fully bear the risk of loss for Developer's
2 Facilities, including but not limited to, losses occurring due to fire, theft, vandalism,
3 malicious mischief, collapse of the Developer's Facilities, or other perils.
4 34.9. Bond Requirements.
5 (a) Performance and Labor and Material Payment Bonds for the Work.
6 Developer, at its sole cost and expense, shall provide, or cause to be provided through
7 the Developer's contractors, to County a performance bond in the amount of one
8 hundred percent (100%) of the Full Development Cost ("Performance Bond'), and a
9 labor and material payment bond in the amount of one hundred percent (100%) of the
10 Full Development Cost ("Labor and Material Payment Bond'). These bonds shall be
11 reviewed by the County for compliance with the Revenue Agreement; shall be
12 maintained by Developer; and shall continue to be in full force and effect unless and
13 until the County accepts the Project. The Notice to Proceed shall not be issued until the
14 bonds have been reviewed and approved by the County for compliance with the
15 Revenue Agreement.
16 (i) The Performance Bond shall secure Developer's full and
17 faithful performance of its obligations under, and pursuant to, the Revenue Agreement,
18 including, but not limited to, the Work, and its obligations as the "Lessee" under, and
19 pursuant to, the Ground Lease.
20 (ii) The Labor and Material Payment Bond, if required of
21 Developer for the Work pursuant to Civil Code 9550 et seq., shall contain provisions
22 such that should the Developer or its subcontractors fail to pay (a) any of the persons
23 named in California Civil Code sections 9550 et seq., (b) any amounts due under the
24 Unemployment Insurance Code with respect to the Work, or (c) any amounts required
25 to be deducted, withheld and paid over to the Employment Development Department
26 from the wages of the employees of Developer and its subcontractors pursuant to
27 Section 13020 of the California Unemployment Insurance Code with respect to the
28 Work, then the surety shall pay these amounts; and also, in case suit is brought upon
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1 the Labor and Material Payment Bond, the surety shall pay a reasonable attorney's fee
2 to be fixed by the court.
3 (iii) All such bonds shall name the County as a beneficiary or
4 obligee, and the amounts thereof shall be adjusted by the amount of any amendment to
5 the Revenue Agreement, if any, approved by the Parties that adjusts the amount of the
6 Full Development Cost.
7 (iv) Upon the occurrence of County's Final Approval, which may
8 be evidenced by County's execution of a Certificate of Completion; provided, that
9 Developer is not otherwise in default of the performance of any of its obligations
10 covered by the Performance Bond, and that there are no unsatisfied claims or demands
11 pending or threatened by County for Developer's and/or Developer's surety under such
12 Performance Bond, the County shall thereafter release the Performance Bond.
13 (v) Upon the occurrence of County's Final Approval, which may
14 be evidenced by County's execution of a Certificate of Completion, as provided therein;
15 provided, that Developer is not otherwise in default of the performance of any of its
16 obligations covered by the Labor and Material Payment Bond, and that there are no
17 unsatisfied claims or demands pending or threatened by County, or person or entity
18 covered by the Labor and Material Payment Bond, for Developer's and/or its surety
19 under such Labor and Material Payment Bond, the County shall thereafter release the
20 Payment Bond.
21 (b) Operations, Maintenance and Restoration Performance Bond.
22 Developer, at its sole cost and expense, within ten (10) calendar days before the
23 County's anticipated acceptance of the Developer's Facilities, shall furnish to County a
24 separate performance bond, with a rating acceptable by the County, which shall secure
25 Developer's full and faithful performance of all of its obligations under, and pursuant to,
26 the Revenue Agreement and of all of its obligations as the "Lessee" under, and
27 pursuant to, the Ground Lease. The bond shall be in the amount as determined by the
28
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1 County but in no event less than $300,000 and shall be known as the "Operations,
2 Maintenance and Restoration Performance Bond."
3 (i) The Operations, Maintenance, and Restoration Performance
4 Bond shall be effective from the Operations Date and shall remain in effect until
5 Developer completes the performance of all of its obligations under, and pursuant to,
6 the Revenue Agreement and of all of its obligations as the "Lessee" under, and
7 pursuant to, the Ground Lease for the remainder of the Term, all to the satisfaction of
8 County. Restoration shall include all locations where Developer's Facilities are located.
9 In no event shall the obligations of the surety expire prior to two years from the
10 termination of the Agreement.
11 (ii) The Operations, Maintenance, and Restoration Performance
12 Bond shall name the County as a beneficiary or obligee.
13 (iii) Developer may elect to continue to furnish, and cause its
14 surety to amend, the Performance Bond, in the amount stated in this subsection
15 34.9(b), to meet the requirements of this subsection 34.9(b), and upon furnishing such
16 amended Performance Bond to County, such amended Performance Bond shall be
17 deemed to be the Operations, Maintenance, and Restoration Performance Bond.
18 (iv) Upon the expiration of the Term, provided Developer has
19 fully performed all of its obligations under the Revenue Agreement and all of its
20 obligations as the "Lessee" under the Ground Lease; and provided further that
21 Developer is not otherwise in default of the performance of any of its obligations
22 covered by the Operations, Maintenance, and Restoration Performance Bond, and that
23 there are no unsatisfied claims or demands pending by County for Developer's and/or
24 Developer's surety under such Operations, Maintenance, and Restoration Performance
25 Bond, the County shall thereafter release the Operations, Maintenance, and Restoration
26 Performance Bond.
27 (c) All bonds under this Revenue Agreement, whether a Performance
28 Bond, a Labor and Material Payment Bond to the extent required by law, an Operations,
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1 Maintenance, and Restoration Performance Bond or other bonds, shall be issued by an
2 admitted surety insurer in the State of California, and shall meet the requirements of all
3 applicable statutes, including but not limited to those specified in California Public
4 Contract Code. The same admitted surety insurer must issue the Performance Bond,
5 Labor and Material Payment Bond, and Operations, Maintenance, and Restoration
6 Performance Bond. The Performance Bond, Labor and Material Payment Bond, and
7 the Operations, Maintenance, and Restoration Performance Bond will neither be
8 accepted nor approved by the County unless and until these bonds are issued by an
9 admitted surety insurer in the State of California in good standing with and authorized
10 by the California Department of Insurance, acceptable to the County, and all
11 requirements of California Code of Civil Procedure Sections 995.610 et seq. are met.
12 All of these bonds must include a valid physical mailing address, telephone number,
13 telephonic facsimile number, and contact person for the admitted surety insurer. The
14 County further reserves the right to satisfy itself as to the acceptability of the surety
15 insurer and the form and substance of the bond. The County, in its discretion, when
16 determining the sufficiency of a proposed surety insurer, may require the surety insurer
17 to provide additional information supported by documentation. The County generally
18 requires such information and documentation whenever the proposed surety insurer has
19 either a Best's Key Rating Guide of less than B+ and a financial size designation of less
20 than Vill; provided, however, the County expressly reserves its right to require all
21 information and documentation to which the County is legally entitled from any
22 proposed surety insurer.
23 34.10. Performance Security Requirements.
24 (a) Use of Performance Security. In compliance with Section 15.1
25 (Preconditions to Work), Developer may elect to furnish a performance security
26 pursuant to this Section 34.10, either in the form of an irrevocable standby letter of
27 credit, cash deposit, or other form of liquid security acceptable to County in the amount
28 stated in subsection 34.9(b) (each a "Performance Security"), to meet the requirements
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1 of subsection 34.9(b), and upon furnishing and maintaining such Performance Security
2 to County, as required by this Section 34.10, such Performance Security shall be
3 deemed to be the Operations, Maintenance, and Restoration Performance Bond. If
4 Developer provides an irrevocable standby letter of credit as such Performance
5 Security, all of the following requirements shall apply to such irrevocable standby letter
6 of credit:
7 (i) The form and substance of the irrevocable standby letter of
8 credit shall be acceptable to County and the issuing bank or other financial institution
9 (collectively, "issuing bank");
10 (ii) The issuing bank shall be acceptable to County, and shall
11 have at least one (1) office or branch in Fresno County, or other location in California
12 acceptable to the County, where the County can draw upon or seek payment under the
13 irrevocable standby letter of credit;
14 (iii) The minimum term of the irrevocable standby letter of credit
15 shall be at least for one (1) year; provided, however, (A) such one (1) year term is only a
16 convenience to the bank issuing the irrevocable standby letter of credit, and is not in
17 any event a limitation on Developer's obligations under this Section 34.10, and (B) such
18 irrevocable standby letter of credit, as amended to renew or extend its effective date, or
19 a replacement irrevocable standby letter of credit, shall meet the requirements of this
20 Section 34.10; and
21 (iv) Developer continually shall renew or extend the irrevocable
22 standby letter of credit, by delivering such renewed irrevocable standby letter of credit,
23 or amendment to the then-current irrevocable standby letter of credit, at least ninety (90)
24 calendar days prior to the expiration of the then-current irrevocable standby letter of
25 credit which shall remain in effect as set forth in Section 34.9(b)(i).
26 34.11. No Interference from Developer. Developer promises, covenants, and
27 warrants that if County attempts to obtain performance under any bond, or draw upon or
28 seek payment under any Performance Security, Developer (including any other
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1 persons, firms, or entitles acting at the direction of Developer) shall not in any way
2 whatsoever defeat, interfere with, obstruct, or cause delay to said right of the County to
3 take any such action, including, without limitation:
4 (a) For any and all bonds, Developer shall not instruct the surety not to
5 perform under the bonds; and
6 (b) For any and all Performance Securities, Developer shall not instruct
7 the Performance Security provider not to honor or pay on any draw or demand for
8 payment by County under said Performance Securities.
9 This Section 34.11 shall not prohibit Developer from taking legal action against
10 County for improperly obtaining performance under any bonds hereunder or improperly
11 drawing upon or obtaining payment under any Performance Securities hereunder, to the
12 extent the Dispute Resolution process under Article 36 does not apply to the
13 enforcement of any Performance Security.
14 ARTICLE 35. FORCE MAJEURE
15 35.1. Definition. "Force Majeure"means an extraordinary and significant event
16 that is not within the reasonable control of a Party and which prohibits or frustrates that
17 Party from performing its obligations under the Revenue Agreement, or an extraordinary
18 and significant event that is not within the reasonable control of a Party and which by
19 the exercise of its due diligence, that Party is unable to overcome or to obtain or cause
20 to be obtained a commercially reasonable substitute therefor; provided, however, Force
21 Majeure will in no event include acts, omissions, circumstances, or events caused by, or
22 through, a third party that is under contract with a Party where and to the extent that the
23 acts, omissions, circumstances, or events caused by, or through, the third party could
24 have been avoided by commercially-reasonable, timely, and diligent management or
25 administration of the third party's performance of its contractual obligations and duties
26 under its contract by the Party to such contract. For purposes of this paragraph, a "third
27 party" shall not include any officer, agent, or employee of a Party, or any parent,
28 affiliate, or subsidiary of a Developer, as applicable. Subject to the foregoing provisions
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1 of this paragraph, examples of Force Majeure are: acts of God; flood; storm;
2 earthquake; other natural calamities (except fire); war; terrorism; civil insurrections; or
3 riots.
4 35.2. Exclusions. "Force Majeure"shall not apply to the Developer's obligation
5 to pay any amounts owed to the County, when and as due. "Force Majeure"shall not
6 extend, or otherwise affect, any of Developer's deadlines for performance of its
7 obligations of the Revenue Agreement unless otherwise expressly provided therein.
8 35.3. Effect of Force Majeure. During any period in which either Party's (or, if
9 both Parties, then, as applicable to each such Party) performance of its obligations
10 under the Revenue Agreement is affected by reason of the occurrence of an event of
11 Force Majeure, the Revenue Agreement shall remain in full force and effect; provided,
12 however, upon giving such notice of Force Majeure, the obligations of the Party giving
13 such notice of Force Majeure, but only so far as they are affected by the Force Majeure,
14 shall be suspended during, but no longer than, the continuance of the Force Majeure,
15 except for a reasonable time thereafter, under the circumstances, required to
16 commence or resume performance of such obligations under the Revenue Agreement.
17 35.4. Notice; Responsibilities of Party Giving Notice. The Party whose
18 performance of its obligations under the Revenue Agreement which may be suspended
19 by Force Majeure herein:
20 (a) Shall give prompt written notice thereof to the other Party, but in no
21 event later than three (3) Days from first becoming aware of the occurrence of a Force
22 Majeure, stating the reason therefor, and shall keep the other Party notified of all such
23 actions required in order for the Party whose performance is suspended to be able to
24 commence or resume performance of its obligations under the Revenue Agreement;
25 (b) Shall promptly, diligently, and in good faith take any and all
26 reasonable action required in order for it to be able to promptly recommence or resume
27 the performance of its obligations under the Revenue Agreement; and
28
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1 (c) Upon the cessation of Force Majeure, shall promptly give the other
2 Party written notice thereof, and, in light of the circumstances, promptly recommence or
3 resume the performance of its obligations under the Revenue Agreement.
4 ARTICLE 36. DISPUTE RESOLUTION
5 36.1. Applicability. Except for equitable remedies, this Article 36 shall govern
6 regarding Disputes.
7 36.2. Principles. The Parties desire to strive for a harmonious relationship
8 under the Revenue Agreement. To that end, the Parties recognize that a cooperative
9 approach, with timely and meaningful communication, reduces the potential for
10 Disputes, and maximizes a positive result for mutual benefit of the Parties.
11 Furthermore, because County is a public entity, Developer acknowledges and agrees
12 that County, as a public entity, has a legitimate goal of minimizing the County's
13 unnecessary costs and expenses incurred, and public resources expended, in the
14 Dispute resolution process, including the time spent by County's staff, attorneys, and
15 any consultants in achieving a mutually satisfactory resolution. Therefore, Developer
16 shall give due consideration to such public interests in making its efforts toward a
17 mutually satisfactory resolution under this Article 36.
18 36.3. Good-Faith Negotiations. In the event that there is a Dispute between
19 the Parties, and to the extent provided in this Article 36, the Parties will make good faith,
20 reasonable efforts toward a mutually-satisfactory resolution, as provided in this Article
21 36. Nothing contained in this Article 36 shall be interpreted to authorize or require the
22 Parties to suspend or delay the performance of their respective obligations under the
23 Revenue Agreement. Except with respect to Disputes that involve either (i) a monetary
24 default by either Party, or (ii) one or both of the Parties and a third party, the Parties will
25 comply with the Dispute resolution procedures set forth in this Article 36.
26 36.4. Request for Meeting. In the event there is a Dispute, the Parties first will
27 meet, either in person, or through other live means, including, but not limited, to
28 teleconferencing, and attempt to resolve such Dispute through "unassisted negotiation"
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1 between County's Project Administrator, or his or her designee, and Developer's
2 representative, or its designee. Such "unassisted negotiation" may include the Parties'
3 respective representatives and consultants, but shall not include the Parties' respective
4 attorneys. If after seven (7) Days from their first meeting, the Parties are unable to
5 resolve the Dispute through such "unassisted negotiation," either Party will have the
6 right to request an in-person meeting in Fresno, California, to be held within fourteen
7 (14) Days following the delivery of such request, for the purpose of resolving the
8 Dispute. Such in-person meeting shall include at least County's Project Administrator,
9 or his or her designee, and Developer's representative, or its designee, who participated
10 on behalf of each of the Parties in the first "unassisted negotiation" meeting. The
11 Parties may be assisted in the in-person meeting by any other persons, including
12 additional representatives, consultants, and attorneys; provided, however, if a Party
13 wishes to be accompanied by an attorney, it shall advise the other Party at least five (5)
14 Days before that in-person meeting; provided, further however, no attorney may be
15 present without the presence of, or approval given by, the other Party's attorney.
16 36.5. Final Decision-Making Authority. Notwithstanding the provisions of
17 Article 36, the Parties acknowledge that certain decisions of the County may require
18 approval by the County's Board of Supervisors in order for such decisions to be lawfully
19 binding on the County. In such instances, any proposed resolution of a Dispute
20 reached by the Parties under Section 36.4, herein, will not be deemed final, and will not
21 take effect, unless and until the proposed resolution of the Dispute, to the extent
22 required by County procedures, is approved by action of the County's Board of
23 Supervisors on behalf of County. If County requires final approval by County's Board of
24 Supervisors for the proposed resolution of a Dispute, County's staff shall submit the
25 proposed resolution of the Dispute, and all relevant supporting background documents
26 and information, to County's Board of Supervisors as promptly as possible, under the
27 circumstances, after the proposed resolution is reached through the process described
28 in Section 36.4, and, if applicable, the thirty (30) Day period described in Section 36.6
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1 will not begin to run until the County's Board of Supervisors has considered the
2 proposed resolution and taken action with respect thereof. Developer acknowledges
3 that County's Board of Supervisors meets only from time to time and requires County's
4 staff to give the County's Board of Supervisors and its administrative office substantial
5 internal advance notice, in addition to any legally required public meeting notices,
6 before County's staff may place matters on the meeting agenda of the County's Board
7 of Supervisors.
8 36.6. Non-Binding Mediation. If the Dispute is not resolved in accordance with
9 Section 36.4, and, if applicable, 36.5, within thirty (30) Days after the commencement of
10 the first "unassisted negotiation" meeting between the Parties, the Dispute will be
11 submitted to non-binding mediation in the City of Fresno, California, if requested by the
12 Parties, as provided in Section 36.7.
13 36.7. Initiation of Mediation. If both Parties agree to mediation, either Party
14 may submit a mediation request ("Mediation Request") which shall (i) include a brief
15 summary of the issues in dispute; (ii) state the dates on which the requesting Party is
16 unavailable to attend the mediation within the immediately succeeding sixty (60) Days
17 after the delivery to the other Party of the Mediation Request; and (iii) unless the Parties
18 agree on a mediator, list at least three (3) neutral mediators who are acceptable to the
19 requesting Party for mediation of the Dispute. Within five (5) Days after the requesting
20 Party's delivery of a Mediation Request to the other Party, the other Party will deliver to
21 the requesting Party a response ("Mediation Response') to the Mediation Request. The
22 Mediation Response shall: (i) include a brief summary of the issues in dispute, (which
23 may or may not be the same as the summary provided by the requesting Party in the
24 Mediation Request); (ii) state the dates on which the responding Party is unavailable to
25 attend the mediation within the immediately succeeding fifty-five (55) Days after the
26 requesting Party's receipt of the Mediation Response; (iii) state whether any one or
27 more of the neutral mediators listed in the Mediation Request is acceptable to the
28 responding Party and, if none of the neutral mediators listed in the Mediation Request is
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1 acceptable to the responding Party, then the Mediation Response will list at least three
2 (3) neutral mediators who are acceptable to the responding Party. Any mediator used
3 for the mediation, unless so waived by the Parties, shall have all of the following
4 qualifications:
5 (a) Unless the Parties agree on a specific mediator, the mediator shall
6 be an attorney or a retired judicial officer, and in either such instance, a then-current
7 member of the State Bar of California;
8 (b) The mediator shall not have any prior involvement for any Party in
9 any facts arising out of the Dispute, or in any manner with respect to the Revenue
10 Agreement, the Ground Lease, and/or any other agreement to be entered into under or
11 with respect to the Revenue Agreement and/or the Ground Lease; and
12 (c) The mediator must have experience in the litigation, mediation, or
13 adjudication of disputes arising out of the development, design, or construction of
14 disposal sites.
15 In lieu of the foregoing, the Parties may agree on an alternate mediation
16 process.
17 36.8. Selection of Mediator. Unless the Parties agree on a specific mediator,
18 within ten (10) Days after delivery to the requesting Party of the Mediation Response,
19 the Parties will attempt in good faith to agree upon a neutral mediator to mediate the
20 Dispute.
21 36.9. Cost of Mediation. Compensation of the mediator will be the shared and
22 equal responsibility of the Parties, and will be agreed upon in writing between the
23 mediator and the Parties before the mediation is commenced.
24 36.10. Attendance at Mediation. The Parties will attend the mediation sessions.
25 The Parties may satisfy this attendance requirement by sending their respective
26 representative who is familiar with the issues and facts of the Dispute, so long as such
27 person has the authority to negotiate on behalf of, and to effectively recommend
28 settlement to, the decision-maker of the Party that he or she represents. Each Party
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1 also may have the assistance of attorneys, consultants, or other representatives of its
2 choice, and each Party will be solely responsible for the cost of its attorneys,
3 consultants, and representatives. In no event shall the mediator be authorized to award
4 attorney's fees or costs to the Party whom such mediator deems to be a prevailing party
5 in the matter of the Dispute that is the subject of the mediation.
6 36.11. Confidentiality. The mediation under the Revenue Agreement will be
7 confidential in all respects, and the provisions of California Evidence Code §§ 1152 and
8 1154, and 1115 through and including 1128 shall apply.
9 36.12. Completion. The mediation shall be completed within sixty (60) Days
10 after the date that the requesting Party delivers the Mediation Request to the other
11 Party, unless the Parties' respective representatives at the mediation agree, in writing,
12 to extend the completion date. If the Parties do not agree to mediation, there shall be
13 no mediation before binding arbitration. However, the prevailing Party in binding
14 arbitration shall be entitled to attorneys fees and costs.
15 36.13 Binding Arbitration. In the event mediation proves unsuccessful, or is
16 not agreed to by both Parties, the Parties shall submit any Dispute, except for equitable
17 remedies, the County's remedies against bonds as described in Article 34, any
18 irrevocable standby letter of credit, any default in payment by the Developer or
19 termination as provided in subsections 4.1 (c) and (d), to binding arbitration under the
20 rules and regulations of the American Arbitration Association unless the Parties
21 otherwise agree in writing to an alternative provider for binding arbitration. Arbitration
22 shall occur in the City of Fresno, California, or such other location as mutually agreed to
23 in writing between the Parties.
24 ARTICLE 37. EVENTS OF DEFAULT
25 37.1. Events of Default by Either Party. Any or all of the following events or
26 conditions shall constitute an "Event of Default" by Developer or County, respectively:
27 (a) Subject to Developer's compliance with Article 7, which shall
28 precede the Parties entering into the Ground Lease, and to the Parties entering into the
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1 Ground Lease, failure of the Developer to make a Remittance of Net Proceeds Payment
2 more than fifteen (15) calendar days after written notice is provided by the County;
3 (b) Any representation or warranty furnished by either Party to the
4 other Party with respect to the Revenue Agreement, or any part thereof, is false or
5 misleading in any material respect when made; or
6 (c) Any other material failure by a Party to perform or comply with the
7 terms of the Revenue Agreement, including breach of any covenant or warranty
8 contained herein, provided that such failure continues for thirty (30) calendar days after
9 notice to such Party demanding that such failure to perform be cured or if such cure
10 cannot reasonably be effected in such thirty (30) calendar days, the Party shall be
11 deemed not to have defaulted upon the prompt commencement of a cure within such
12 thirty (30) calendar days and (i) periodic notices, at reasonable intervals, given to the
13 other Party regarding the status and reasonably expected date that such cure will be
14 completed, and (ii) diligent subsequent completion thereof within a reasonable time.
15 37.2. Events of Default by Developer. In addition to and separate from the
16 provisions of Section 37.1, herein, any or all of the following events or conditions shall
17 constitute an "Event of Default" by Developer:
18 (a) Developer fails to timely comply with any or all of its obligations with
19 respect to CEQA, as more fully set forth in, and pursuant to, Article 7 (CEQA
20 Compliance) and/or under the CEQA Compliance Schedule.
21 (b) Subject to Developer's compliance with Article 7, which shall
22 precede the Parties entering into the Ground Lease, and to the Parties entering into the
23 Ground Lease, Developer fails at any time to comply with any or all of its obligations to
24 provide, develop, engineer, design, construct, finance, install, implement, own, operate,
25 and maintain Developer's Facilities; and to obtain Authorizations for Developer's
26 Facilities, as more fully set forth in, and pursuant to, Article 8 (Non-Interference by
27 Developer's Facilities).
28
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1 (c) Developer fails at any time to comply with any or all of its
2 obligations to calculate and pay, when due, and timely record and report any and all
3 items, including by way of example, and not as a limitation, Governmental Charges and
4 Taxes, which are more fully set forth in, and pursuant to, Article 9 (Costs, Expenses and
5 Governmental Charges and Taxes).
6 (d) Subject to Developer's compliance with Article 7, which shall
7 precede the Parties entering into the Ground Lease, and to the Parties entering into the
8 Ground Lease, Developer fails at any time to comply with any or all of its obligations to
9 cause the Work, and Developer's Facilities, including the ownership, installation,
10 implementation, operation, and maintenance thereof, to continually remain in full
11 compliance with all Authorizations, Governmental Approvals, and Applicable Laws and
12 Regulations with respect to the Work and Developer's Facilities, as required in the
13 Revenue Agreement.
14 (e) Subject to Developer's compliance with Article 7, which shall
15 precede the Parties entering into the Ground Lease, and to the Parties entering into the
16 Ground Lease, Developer fails at any time to make the Developer's Facilities ready for
17 County's Final Approval within the time specified as set forth in the Project Schedule.
18 (f) Subject to Developer's compliance with Article 7, which shall
19 precede the Parties entering into the Ground Lease, and to the Parties entering into the
20 Ground Lease, Developer fails at any time to comply with its obligations to take
21 possession of all of the Allotted LFG made available by County to Developer at the
22 Transfer Point, it being understood and agreed by Developer that such Event of Default
23 is distinctly separate from Developer's failure to pay County for the purchase of such
24 Allotted LFG.
25 (g) Subject to Developer's compliance with Article 7, which shall
26 precede the Parties entering into the Ground Lease, and to the Parties entering into the
27 Ground Lease, Developer's Facilities are destroyed or damaged in a manner that
28 materially and adversely affects County's ability to operate the Landfill, including
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1 County's LFG Management System, in compliance with the requirements of all
2 Authorizations, Governmental Approvals, and Applicable Laws and Regulations and
3 Developer chooses not to rebuild, in which event the Developer shall restore Premises
4 in accordance with Section 4.2.
5 (h) Subject to Developer's compliance with Article 7, which shall
6 precede the Parties entering into the Ground Lease, and to the Parties entering into the
7 Ground Lease, Developer fails at any time to comply with any or all of its obligations to
8 cause the Developer's Facilities to continually comply at all times during the Term with
9 the requirements of all Authorizations, Governmental Approvals, and Applicable Laws
10 and Regulations, as more fully set forth in, and pursuant to, Article 27 (Compliance With
11 Applicable Laws and Regulations).
12 (i) Subject to Developer's compliance with Article 7, which shall
13 precede the Parties entering into the Ground Lease, and to the Parties entering into the
14 Ground Lease, Developer fails at any time to comply with any or all of its obligations to
15 inspect, maintain, clean, restore, repair, and replace the Developer's Facilities, or
16 applicable portions thereof, as more fully set forth in, and pursuant to, Article 28
17 (Maintenance).
18 0) Developer fails to comply with any or all of its obligations to
19 generate, handle, bring onto, use, store, treat, or transport any Hazardous Materials in
20 or about the Premises, as more fully set forth in, and pursuant to, Article 32 (Hazardous
21 Materials), or to detect, remove, contain, and dispose of (but not at the Landfill) any
22 Hazardous Materials in or about the Premises, as more fully set forth in, and pursuant to
23 Article 32, or to clean up the environment as more fully set forth in and pursuant to,
24 Article 32.
25 (k) Developer fails to comply with any or all of its obligations to
26 indemnify and defend County, including its officers, officials, agents, and employees, as
27 more fully set forth in, and pursuant to, Article 33 (Indemnification and Defense).
28
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1 (1) Developer fails to comply with any or all of its obligations to obtain
2 and maintain insurance coverages, bonds, and performance security, as more fully set
3 forth in, and pursuant to, Article 34 (Insurance, Risk of Loss, Bonds, Performance
4 Security).
5 (m) Subject to Developer's compliance with Article 7, which shall
6 precede the Parties entering into the Ground Lease, and to the Parties entering into the
7 Ground Lease, Developer fails, upon the termination of the Revenue Agreement, to
8 perform all of its obligations with respect to the tear down and removal of Developer's
9 Facilities, and the full restoration of the Premises, as more fully set forth in, and
10 pursuant to Section 4.2.
11 (n) Developer violates, and fails to promptly cure, any material terms of
12 the Revenue Agreement, including breach of any material covenant, warranty or
13 guaranty contained herein after fifteen (15) calendar days' written notice thereof by
14 County to Developer demanding that such violations cease, and such violations remain
15 uncorrected.
16 (o) Subject to Developer's compliance with Article 7, which shall
17 precede the Parties entering into the Ground Lease, and to the Parties entering into the
18 Ground Lease, Developer fails to make prompt and full payment to subcontractors,
19 including persons for labor, services, supervision, management, equipment, supplies,
20 goods, or materials.
21 (p) Any liens, stop notices, claims, security interests, financing
22 statements or other encumbrances upon or against any of the Landfill, County's LFG
23 Management System, the Premises, or any other properties of the County, by
24 Developer or any subcontractor, including any person providing labor, services,
25 supervision, management, services, equipment, supplies, goods or material for the
26 Work, which is not released or resolved to County's satisfaction in twenty-one (21)
27 calendar days.
28 (q) Developer files a bankruptcy petition, or its creditors file a
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1 bankruptcy petition against Developer, either of which proceeding shall not have been
2 dismissed within thirty (30) days of its filing (unless the Developer continues to operate
3 as the Debtor in possession and authorized to operate pursuant to the Revenue
4 Agreement and Ground Lease), or there is an involuntary assignment for the benefit of
5 all creditors of Developer or the liquidation of Developer.
6 (r) Developer admits in writing to its inability to pay its debts as they
7 become due.
8 (s) A receiver is appointed for Developer.
9 (t) Subject to Developer's compliance with Article 7, which shall
10 precede the Parties entering into the Ground Lease, and to the Parties entering into the
11 Ground Lease, there is a breach or event of default by Developer at any time under the
12 Ground Lease.
13 (u) There is a breach or an event of default by Developer at any time
14 under any loan, promissory note, agreement, financing, or other financing or debt
15 instrument with any third party lender relating to the Revenue Agreement and Ground
16 Lease.
17 ARTICLE 38. REMEDIES UPON DEFAULT
18 38.1. County's Remedies upon Event of Default by Developer. If there is an
19 Event of Default by Developer, then the County. subject to Force Majeure provisions,
20 may serve written notice thereof upon Developer which shall exercise due diligence to
21 cure default. County also may serve such notice of Event of Default upon Developer's
22 surety of any bonds or provider of any performance security. Such notice shall contain
23 the reason or reasons for the Event of Default, and, unless within one hundred twenty
24 (120) calendar days after the serving of such notice, such Event of Default is cured to
25 County's satisfaction either by Developer, or its surety of such bond or provider of such
26 performance security, County may, upon the expiration of said one hundred twenty
27 (120) Days, terminate the Revenue Agreement.
28
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1 If, pursuant to this Section 38.1, after County serves written notice of an Event of
2 Default upon Developer, or upon its surety of such bond or provider of such
3 performance security, the surety of such bond or provider of such performance security,
4 as applicable, County shall have the right, but not the obligation, under the applicable
5 bond or performance security to take over and perform Developer's obligations under
6 the Revenue Agreement; provided, however, that if such surety of such bond or
7 provider of such performance security, within the foregoing one hundred twenty (120)
8 calendar day period, does not give the County written notice of its intention to promptly
9 take over and perform Developer's obligations under this Agreement or does not
10 commence performance thereof within the one hundred twenty (120) calendar days
11 from the date of County's serving of such notice, County may tear down and remove
12 Developer's Facilities, and fully restore the Premises, as more fully set forth in and
13 pursuant to Section 4.2, for the account and at the cost and expense of Developer and
14 such surety of such bond or provider of such performance security, as applicable, and
15 Developer and surety of such bond or provider of such performance security, as
16 applicable, shall be liable to County for any such costs incurred by the County in taking
17 such actions.
18 If an Event of Default by Developer occurs in connection with the Work or failure
19 to complete the Work in accordance with the Project Schedule, the Developer's
20 Facilities including the operation and maintenance thereof, the Developer's failure to
21 pay County any sum due under the Revenue Agreement (including by way of example,
22 and not as a limitation, payment for Allotted LFG which Developer has
23 obtained from County), or any other matter under the Revenue Agreement, (a) no
24 remedy or election of any remedy by County under the Revenue Agreement, or as
25 "Lessor" under the Ground Lease, shall be deemed exclusive but shall, wherever
26 possible, be cumulative with all other remedies provided herein, under the Ground
27 Lease, and at law or in equity; and (b) County may, without a waiver of other remedies
28 that exist in law or equity or under the Revenue Agreement, and/or Ground Lease,
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1 exercise any and all rights and remedies under the Revenue Agreement and/or Ground
2 Lease, or at law or equity, or institute other proceedings, including, without limitation,
3 bringing an action or actions from time to time for specific performance, and/or for the
4 recovery of damages, and/or for such other and further relief as the court may order,
5 subject to the provisions of binding arbitration as set forth in Section 36.13.
6 Without affecting the County's rights and remedies under the Revenue
7 Agreement, including any bond or performance security received by County hereunder,
8 or, as "Lessor" under the Ground Lease, County may, but is not obligated to, perform or
9 employ others to undertake any work (including the Work), service, or function
10 neglected by Developer by any method County may deem advisable under the
11 circumstances, in order to protect the Landfill, County's LFG Management System,
12 including protection from any Governmental Enforcement Agency's actual or threatened
13 order, directive, demand, notice, of any violation or remedial action in connection with
14 the Work or Developer's Facilities including the operations and maintenance thereof;
15 and the cost thereof shall be for the account and at the cost and expense of Developer
16 and its surety of such bond, or provider of such performance security, as applicable,
17 and Developer and its surety of such bond, or provider of such performance security, as
18 applicable, shall be liable to County for any such costs incurred by the County in taking
19 such actions. County may take such actions after three (3) Days' written notice thereof
20 given to Developer that the Work, service, or function is unperformed or not performed
21 and remains uncured after a notice of Event of Default is served upon the Developer by
22 County. County also may serve such notice upon Developer's surety under the
23 applicable bond, or provider of such performance security, and the surety, or the
24 provider of such performance security, as applicable.
25 Notwithstanding anything to the contrary, (a) in no event shall any bond or
26 performance security provided by Developer to County, or executed upon by County, as
27 provided herein, limit any of County's rights or remedies against Developer under the
28 Revenue Agreement, or limit any of County's rights or remedies as "Lessor" against
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1 Developer as "Lessee" under the Ground Lease; and (b) if the Operations,
2 Maintenance, and Restoration Performance Bond is other than an irrevocable standby
3 letter of credit, County may immediately execute upon such Operations, Maintenance,
4 and Restoration Performance Bond without giving notice to any third parties.
5 38.2. Remedies of Developer upon Event of Default of County. If there is an
6 Event of Default by County, then Developer may serve written notice thereof upon
7 County. Such notice shall contain the reason or reasons for the Event of Default, and,
8 unless within one hundred twenty (120) calendar days after the serving of such notice,
9 such Event of Default is cured to Developer's satisfaction by County, Developer may,
10 upon the expiration of said one hundred twenty (120) calendar days, terminate the
11 Revenue Agreement.
12 If an Event of Default by County occurs under the Revenue Agreement, (a) no
13 remedy or election of any remedy by Developer under the Revenue Agreement, or as
14 "Lessee" under the Ground Lease, shall be deemed exclusive but shall, wherever
15 possible, be cumulative with all other remedies provided herein, under the Ground
16 Lease, and at law or in equity, and (b) Developer may, without a waiver of other
17 remedies that exist in law or equity or under the Revenue Agreement, and/or Ground
18 Lease, exercise any and all rights and remedies under the Revenue Agreement, and/or
19 Ground Lease, or at law or equity, or institute other proceedings, including, without
20 limitation, bringing an action or actions from time to time for specific performance,
21 and/or for the recovery of damages, and/or for such other and further relief as the court
22 may order subject to the provisions of binding arbitration as set forth in Section 36.13.
23 ARTICLE 39. ASSIGNMENT
24 39.1. Assignment bV Developer. Developer acknowledges that County has
25 been induced to enter into the Revenue Agreement by, among other things, the
26 professional qualifications, expertise, and resources of Developer and Developer's
27 representations of its ability to competently and timely perform the Work, and to operate
28 and maintain the Developer's Facilities as provided in this Revenue Agreement.
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1 Developer agrees that neither this Revenue Agreement nor any right or obligations of
2 Developer hereunder may be assigned or transferred, nor may any obligation of
3 Developer be delegated, in whole or in part, to another firm, person or entity, without the
4 prior express written consent of the County; provided, however, that Developer, upon
5 thirty (30) days written notice to the County, shall be permitted to: (i) collaterally assign
6 this Revenue Agreement to a wholly owned subsidiary or an entity for which it has
7 majority control for the purpose of securing third party financing for the Project on
8 condition that such collateral assignment does not allow a third party to assume the
9 obligations of the Revenue Agreement and Ground Lease in the event of default; (ii)
10 assign this Revenue Agreement to a wholly owned subsidiary or an entity in which the
11 Developer has majority control and the wholly owned subsidiary or entity has the
12 equivalent expertise, experience, and assets; or (iii) to any entity or organization with
13 the equivalent expertise, experience, and assets, subject to review and written approval
14 by the County, in performing the duties and obligations of the Revenue Agreement and
15 Ground Lease. The Developer may use subcontractors with equivalent expertise,
16 experience, and assets provided that Developer shall continue to be obligated to
17 perform the provisions of the Revenue Agreement and Ground Lease.
18 ARTICLE 40. REPRESENTATIONS AND WARRANTIES
19 40.1. Representations of Both Parties. Each Party warrants and represents
20 to the other Party that:
21 (a) It has all requisite power, authority, corporate or otherwise, to
22 authorize the approval of, to execute and to deliver the Revenue Agreement to the other
23 Party, and to perform its obligations hereunder;
24 (b) During the Term, it shall continue to have all requisite power,
25 authority, corporate or otherwise, to perform its obligations hereunder;
26 (c) Its execution, delivery, and performance of the Revenue Agreement
27 have been duly authorized by, or are in accordance with, its organizational instruments
28 (for Developer its limited liability company or, if subsequently incorporated, its articles of
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1 incorporation, by-laws, corporate resolutions and the like; for County, all applicable laws
2 and its Charter), and the Revenue Agreement has been duly executed and delivered for
3 it by the signatories so authorized and it constitutes its legal, valid, and binding
4 obligation of such Party enforceable against such Party according to its terms and
5 conditions; and
6 (d) The officer executing the Revenue Agreement for and on behalf of
7 such Party is duly authorized by such Party to bind such Party to the Revenue
8 Agreement, regardless of whether such person later does not hold such office, or have
9 such authority, at the time of the Parties' performance of this Agreement.
10 40.2. Additional Representations of County. County hereby warrants,
11 represents and promises to Developer that:
12 (a) County is a duly constituted political subdivision of the State of
13 California. County is authorized under the Constitution and laws of the State of
14 California to enter into the Revenue Agreement, each transaction contemplated hereby,
15 and to perform all of its obligations under the Revenue Agreement. County has
16 complied with all applicable laws regarding the entering into of this Agreement;
17 (b) County does not, as of the Effective Date, have any existing
18 contracts or agreements with other persons or entities regarding the sale of LFG;
19 (c) The execution and delivery of this Revenue Agreement by County
20 and the performance of the terms, covenants and conditions contained herein will not
21 violate the Charter of County, or any order of a court or arbitrator, does not and will not
22 conflict with and will not constitute a material breach of, or default under, the provisions
23 of any material agreement by which County is bound; and
24 (d) The authorization, approval and execution of the Agreement and all
25 other proceedings of County relating to the transactions contemplated thereby have
26 been performed in accordance with all applicable open meeting, public records, and all
27 other laws, rules and regulations of County.
28
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1 40.3. Additional Representations by Developer. Developer hereby warrants,
2 represents and promises to County that:
3 (a) Developer is a duly constituted limited liability company (LLC) in
4 good standing in the State of California;
5 (b) Developer has all requisite power and authority to license the use
6 any patented material, device, right, method or process, or propriety or right, or
7 intellectual property right, or copyrighted material for the Work, both tangible and
8 intangible, to the extent needed for the Revenue Agreement;
9 (c) Developer will timely obtain all requisite Authorizations and
10 Governmental Approvals, will obtain all necessary land use permits or clearances, and
11 will insure all required coordination with the County will be timely met;
12 (d) Developer has the necessary expertise, qualifications, and
13 resources to, or to cause others to, provide, develop, engineer, design, construct,
14 finance, install, implement, own, operate, and maintain Developer's Facilities for the
15 Landfill, as contemplated in the Revenue Agreement;
16 (e) The Developer's Facilities shall meet or exceed the minimum
17 performance criteria of the Developer's Facilities in its completed and fully operational
18 condition, as set forth in Allotted LFG-to-Energy Project Plan;
19 (f) Developer is financially solvent, able to pay its debts as they
20 mature and possessed of sufficient working capital, and access to appropriate
21 subcontractors, labor, services, supervision, management, equipment, materials,
22 supplies, goods and other resources to competently and timely complete the Work and
23 perform its obligations under the Revenue Agreement;
24 (g) Developer shall only use subcontractors who are qualified, licensed
25 and bonded in the State of California to perform their portion of the Work, or other
26 obligations under the Revenue Agreement;
27 (h) The execution and delivery of this Revenue Agreement by
28 Developer and the performance of the terms, covenants and conditions contained
125
1 herein will not violate any provisions of Developer's LLC, or if subsequently
2 incorporated, the articles of incorporation or by-laws of Developer, or any order of a
3 court or arbitrator, does not and will not conflict with and will not constitute a material
4 breach of, or default under, the provisions of any agreement by which Developer is
5 bound;
6 (i) Developer shall not undertake any other commitment or business
7 arrangement that interferes with Developer's ability to timely perform and complete the
8 Work according to the Project Schedule; and
9 0) Developer has had the opportunity to ask for and obtain from
10 County all data, information and records, and, with due diligence, has made all
11 necessary inspections of the Landfill, including County's LFG Management System, and
12 the Premises (both below ground and above ground), and has made all necessary
13 inquiries, concerning the subject matter of the Revenue Agreement, to enable
14 Developer to provide, develop, engineer, design, construct, finance, install, implement,
15 and own the Developer's Facilities, all in compliance with the Project Schedule, and all
16 in conformity with the Revenue Agreement.
17 ARTICLE 41. MISCELLANEOUS PROVISIONS
18 41.1. Independent Contractor. In performance of the work, services, duties,
19 and obligations assumed by Developer under the Revenue Agreement, it is mutually
20 understood and agreed that Developer, including any and all of Developer's officers,
21 agents, employees and subcontractors will at all times be acting and performing as an
22 independent contractor, and shall act in an independent capacity and not as an officer,
23 official, agent, servant, employee, joint venturer, partner, representative, or associate of
24 the County. The County does not in any way assume any of the contractual or other
25 obligations of Developer to other parties, including, without limitation, subcontractors,
26 under any agreements referred to herein or otherwise. Furthermore, County shall have
27 no right, or obligation, to control or supervise or direct the manner or method by which
28 Developer shall perform its Work and other obligations under the Revenue Agreement;
126
1 provided, however, County shall retain the right to administer the Revenue Agreement
2 so as to verify that Developer is performing its Work and other obligations in accordance
3 with the terms and conditions thereof. Developer and County shall comply with all
4 applicable provisions of law and the rules and regulations, if any, of governmental
5 authorities having jurisdiction over matters the subject of this Section 41.1.
6 (a) Because of its status as an independent contractor, Developer shall
7 not have any employment rights or benefits available to County employees. Developer
8 shall be solely liable and responsible for providing to, or on behalf of, its employees all
9 legally-required employee benefits. In addition, Developer shall be solely responsible
10 and save County harmless from all matters relating to payment of Developer's
11 employees, including compliance with Social Security, withholding, and all other
12 regulations governing such matters. It is acknowledged that during the term of the
13 Revenue Agreement, Developer may be providing services and work to others
14 unrelated to the County or to the Revenue Agreement; provided, however, Developer's
15 provision of such other services shall not interfere with Developer's performance of its
16 obligations under the Revenue Agreement.
17 (b) Nothing in the Revenue Agreement makes, nor is it intended to
18 make, County liable to or for, or create any agency or privity relationship between or
19 among any of the subcontractors, on the one hand, and County, on the other hand.
20 41.2. County's Inspection; Developer's Responsibilities.
21 (a) County, including its agents, shall have the right, upon reasonable
22 notice and during normal business hours, to enter the Premises to inspect Developer's
23 use of the Premises, including Developer's Work, and operation and maintenance of the
24 Developer's Facilities, from time to time during the Term. Such entry and inspection by
25 County of Developer's use of the Premises, including Developer's Work, and operation
26 and maintenance of the Developer's Facilities, will be for the purposes of County
27 administering the Revenue Agreement, including County confirming that Developer is
28 performing its obligations pursuant to the terms and conditions of the Revenue
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1 Agreement; provided, however, such entry and inspection by County shall not create
2 any obligation of County with respect to Developer's use of the Premises, including
3 Developer's Work, and operation and maintenance of the Developer's Facilities.
4 (b) In the event of emergency, County shall have the right to
5 immediately enter the Premises and to investigate, and take appropriate action, any
6 event or condition occurring on or about the Premises from time to time during the
7 Term. In such event of emergency, County will thereafter give Developer notice of such
8 entry, and of any such action, as soon as reasonably practical under the circumstances.
9 (c) Notwithstanding any provision to the contrary, any inspection,
10 examination, approval, or test by County, or any failure to undertake same, in whole or
11 in part, shall not relieve Developer of its responsibility concerning the development,
12 engineering, design, construction, installation, completion, and implementation of the
13 Developer's Facilities in compliance with the Approved Plans and Specifications, and
14 Developer's contractual obligations to County under the Revenue Agreement.
15 41.3. Audits and Inspections. Developer shall at any time during business
16 hours, and as often as the County may deem necessary, make available to the County for
17 examination all of its records, agreements with subcontractors and data with respect to the
18 matters covered by the Revenue Agreement. Developer, upon request by the County,
19 shall permit the County to audit and inspect all of such records, agreements with
20 subcontractors and data necessary to ensure Developer's compliance with the terms and
21 conditions of the Revenue Agreement. Developer and County are subject to the
22 examination and audit of the California Auditor General to the extent that Government
23 Code Section 8546.7 applies. Developer shall retain all such records and data for at least
24 five (5) years under the Revenue Agreement to permit any such audit and inspection.
25 41.4 Reserved.
26 41.5. No Waiver. The failure of Developer or County to insist upon the strict
27 performance of the terms and conditions hereof by the other Party shall not constitute or
28 be construed as a waiver or relinquishment of either Party's right to thereafter enforce
128
1 the same in accordance with the Revenue Agreement in the event of a continuing or
2 subsequent Event of Default on the part of Developer or County, respectively.
3 41.6. Applicable Laws and Regulations. This Agreement and the
4 construction and enforceability thereof shall be interpreted under and in accordance
5 with the Applicable Laws and Regulations of the State of California. If either Party
6 initiates any legal or equitable action to enforce the terms or conditions of the Revenue
7 Agreement, to declare the rights or obligations of the Parties under the Revenue
8 Agreement or which relates to the Revenue Agreement in any manner, the Parties
9 agree that the place of making and for performance of the Revenue Agreement shall be
10 Fresno County, State of California, and the proper venue for any such action is only the
11 Superior Court of the State of California, in and for the County of Fresno, unless the
12 amount in controversy falls below the jurisdiction of the Superior Court.
13 41.7. No Conflict of Interest. Developer represents that it has read and is
14 familiar with California Government Code Sections 1090 et seq, and §§ 87100 et seq,
15 Developer promises, covenants, and warrants that, after having performed a reasonable
16 investigation, the performance of the Work and its obligations under the Revenue
17 Agreement shall not result in or cause Developer to violate California Government Code
18 Sections 1090 et seq. and 87100 et seq.
19 41.8. Notice. Any notice required or permitted hereunder shall be deemed
20 sufficient if given in writing by (i) delivered personally; (ii) sent and received by United
21 States Mail return receipt requested; (iii) sent and received by commercial overnight
22 courier services with proof of delivery; or (iv) sent and received by telephonic facsimile if
23 the sender's facsimile machine provides a time stamp when such facsimile was
24 transmitted (unless the time stamp is manifestly in error), to the address or telephonic
25 facsimile number shown below:
26 To Developer: Toro Energy of California AA LLC
5900 Southwest Parkway
27 Building 2 Suite 220
Austin, TX 78735
28 Fax: (512) 494-4341
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1
2 To County: County of Fresno
Director of Public Works and Planning
3 2220 Tulare Street, Suite 800
Fresno, California 93721
4 Fax: (559) 600-4548
5 With copy to: County of Fresno
Resources Division
6 Department of Public Works and Planning
2220 Tulare Street, Suite 600
7 Fresno, California 93721
8 Fax: (559) 600-4552
9 For notices of Events of Default by County, with a copy to:
Office of Fresno County Counsel
10 2220 Tulare Street, Fifth Floor
Fresno, California 93721
11 Fax: (559) 600-3480
12
Any notices under this Section 41.9 shall be deemed given by a Party three (3)
13
Days after sent by that Party giving such notice to the other Party; provided, however,
14
notices of termination of the Revenue Agreement shall be deemed received upon
15
delivery.
16
Either Party may change its foregoing address or telephonic facsimile number for
17
receiving notice by giving written notice thereof in any one of the manners provided in
18
this Section.
19
41.9. Administrators of the Parties. The County Project Administrator, either
20
acting directly or through his or her authorized agents, shall administer this Agreement
21
for County, and shall be Developer's primary contact for purposes of carrying out this
22
Agreement. Developer's project manager, acting either directly or through his or her
23
authorized agents, shall administer this Agreement for Developer, and shall be County's
24
primary contact for purposes of carrying out this Agreement.
25
41.10. Headings and References. Headings and subtitles used throughout the
26
Revenue Agreement are for the purpose of convenience only, and no heading or
27
subtitle shall modify or be used to interpret the text of any Section or article. Any and all
28
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1 references to Sections, articles, schedules, exhibits or appendices shall mean, unless
2 otherwise stated, Sections, articles, schedules, exhibits and appendices to this
3 Agreement. All references to gender shall mean either male and female, as applicable,
4 to the person who then hold the office or title.
5 41.11. Counterparts. The Revenue Agreement may be executed by the Parties
6 in any number of counterparts, each of which shall be deemed an original Revenue
7 Agreement, but all of which collectively constitutes one and the same Revenue
8 Agreement.
9 41.12. No Third-Party Beneficiaries. There are no third-party beneficiaries to
10 the Revenue Agreement. Nothing contained in this Agreement, or any other person or
11 arrangement referred to herein shall create a legal or contractual relationship between
12 the County in favor of such third-party, including, without limitation, Developer's
13 subcontractors, and providers of materials, goods and services, any Utility, any
14 Governmental Enforcement Agency, any other governmental entity or agency or officer
15 or official thereof, or any member of the public.
16 41.13. No Waiver of Governmental Privileges and Immunities. The Revenue
17 Agreement does not alter or affect, nor does it cause a waiver of, the County's
18 (including its officers, officials, agents, and employees) privileges and immunities under
19 the California Constitution and statutes thereunder, including, without limitation, the
20 provisions concerning the presentation of claims and of actions against the County
21 (including its officers, officials, agents, and employees) under the Division 3.6 of Title 1
22 of the California Government Code (Sections 810 to 996.4, inclusive).
23 41.14. Public Records. Developer acknowledges and agrees that the California
24 Public Records Act ("PRA"; California Government Code Sections 6250 et seq.) treats
25 any and all records, data or information, in whatever form and received from whatever
26 source, prepared, used, owned or retained by County as a public record which must be
27 disclosed by County to the public, unless such records, data, or information are exempt
28 from such public disclosure.
131
1 (a) Public Access to Developer's Information. Developer
2 acknowledges that County does not wish to receive trade secrets and that Developer is
3 not to disclose trade secrets to County unless absolutely necessary for purposes of the
4 Revenue Agreement. "Trade secrets"as defined by the California Government Code
5 Section 6254.7(d) provides:
6 "[T]rade secrets are not public records under this Section.
7 'Trade secrets,' as used in this Section, may include, but are
8 not limited to, any formula, plan, pattern, process, tool,
9 mechanism, compound, procedure, production data, or
10 compilation of information which is not patented, which is
11 known only to certain individuals within a commercial
12 concern who are using it to fabricate, produce, or compound
13 an article of trade or a service having commercial value and
14 which gives its user an opportunity to obtain a business
15 advantage over competitors who do not know or use it."
16 Developer further acknowledges that California Government Code Section
17 6254.7, which is in the PRA, also provides:
18 "(a) All information, analyses, plans, or specifications that
19 disclose the nature, extent, quantity, or degree of air
20 contaminants or other pollution which any article, machine,
21 equipment, or other contrivance will produce, which any air
22 pollution control district or air quality management district, or
23 any other state or local agency or district, requires any
24 applicant to provide before the applicant builds, erects,
25 alters, replaces, operates, sells, rents, or uses the article,
26 machine, equipment, or other contrivance, are public
27 records."
28
132
1 "(b) All air or other pollution monitoring data, including data
2 compiled from stationary sources, are public records."
3 "(e) Notwithstanding any other provision of law, all air
4 pollution emission data, including those emission data which
5 constitute trade secrets as defined in subdivision (d), are
6 public records. Data used to calculate emission data are not
7 emission data for the purposes of this subdivision and data
8 which constitute trade secrets and which are used to
9 calculate emission data are not public records."
10 Any and all records, data, or information that Developer, or its agents, provides to
11 County shall be treated by County as public records under the PRA unless such
12 records, data, or information are submitted to County in a sealed envelope or container,
13 the exterior of such sealed envelope or container is conspicuously marked by Developer
14 as "confidential trade secrets,"such records, data, or information are trade secrets, as
15 determined by County. Records, data, or information submitted by Developer, or its
16 agents, to County as proprietary, confidential, or under any other such terms that might
17 suggest restricted public access will not be excluded from treatment as public records if
18 such records, data or information are not, in County's determination, trade secrets
19 under the PRA.
20 Any records, data, or information identified by Developer and submitted to
21 County as "confidential trade secrets"will be reviewed by County's legal counsel to
22 determine conformance or non-conformance to that definition, and following such
23 review, County promptly will inform Developer of the results of such review.
24 Any and all records, data, or information that Developer, or its agents, provides to
25 County that are, in County's determination, trade secrets under the PRA, and necessary
26 for County, in its determination, to retain in connection with the Revenue Agreement,
27 will be safeguarded by County in an appropriate manner, and County shall not publicly
28 disclose such records, data or information, unless and to the extent required by law,
133
1 court order, or subpoena or similar legal process compelling County's compliance
2 therewith.
3 In the event County receives a request from any third party for access to any of
4 such of Developer's records, which, in County's determination, are trade secrets,
5 County will promptly notify Developer, in writing, of such request, and, in addition to the
6 indemnification and defense, to the fullest extent permitted by law, Developer agrees to
7 and shall indemnify, save, hold harmless, and at County's request, defend County and
8 its officers, officials, agents, and employees, from and against any and all demands,
9 costs and expenses, penalties, attorney's fees and costs, damages of any nature
10 whatsoever, judgments (including but not limited to amounts paid in settlement and
11 amounts paid to discharge judgments), liabilities, claims and losses, suits, actions or
12 proceedings of every name, kind and description occurring or resulting to County, and
13 its officers, officials, agents, and employees, arising out of or in connection with
14 County's failure or refusal to give such third party access to any or all of such of
15 Developer's records, which, in County's determination, are trade secrets. The provisions
16 of this Section shall survive the termination of the Revenue Agreement.
17 (b) Developer's Access to County Information. County maintains certain
18 public records with respect to the Landfill, including the County's LFG Management
19 System, and as such, they are available to Developer, in the same manner as they
20 would be to any member of the public pursuant to the PRA. As a result, Developer
21 acknowledges and agrees that any such County public information that Developer may
22 review or obtain from County does not give Developer any greater right or expectation
23 than any member of the public may request for its own purposes, and that the
24 provisions of this Article 41 do not entitle Developer to any County records that are
25 exempt from disclosure under the PRA. County shall, during normal Landfill business
26 hours, make reasonably available Landfill existing records, drawings, maps, and data
27 necessary or convenient for Developer's interests with respect to the Revenue
28 Agreement; provided, however (i) such County information is collected and maintained
134
1 for County's own purposes and County makes no representation, warranty or
2 assurance, either express or implied, that such information is accurate or complete, or
3 that it is satisfactory for Developer's purposes even if such purposes have been stated
4 to County; (ii) County's provision of such County information is not any approval,
5 commitment, or agreement by County, either express or implied, with respect to
6 Developer's use of such County information, nor has County investigated such use to
7 make any determination with respect to such information, and available to Developer,
8 for its inspection; and (iii) if Developer wishes to obtain copies of any such County
9 information, Developer first shall reimburse County for the County's cost thereof, as
10 provided in the County's fee schedule, or similar authority, regulating the provision of
11 copies of public records to members of the public.
12 41.15. No Waiver of Confidentiality Privileges. Nothing contained in the
13 Revenue Agreement shall require either Party, or its agents or representatives, to
14 provide or disclose to a third party, any records, data or information which is exempt
15 from disclosure to such other Party or third parties under the attorney-client
16 communication privilege or attorney work product privilege, or any records, data or
17 information which are legally required to be kept confidential, unless and until disclosure
18 thereof otherwise is ordered by a court of competent jurisdiction. The Parties agree that
19 such information retained by County are exempt from disclosure, and are not public
20 records, under California Government Code § 6254(k).
21 41.16. News Releases. Developer shall not issue any news releases or
22 otherwise release similar information to the public concerning the Revenue Agreement
23 without the prior written approval of the County Project Administrator.
24 41.17. Severability. In the event that any clause or provision of the Revenue
25 Agreement or any part thereof shall be declared invalid, void, or unenforceable by any
26 court having jurisdiction, such invalidity shall not affect the validity or enforceability of
27 the remaining portions of the Revenue Agreement unless the result would be manifestly
28 inequitable or unconscionable or unlawful.
135
1 41.18. Time of Essence. Time is of the essence in the Developer's performance
2 of its obligations under the Revenue Agreement.
3 41.19. Entire Agreement; Interpretation. The Revenue Agreement, together
4 with all Exhibits and attachments, shall constitute the entire and integrated Revenue
5 Agreement by and between Developer and County with respect to the subject matter
6 hereof and supersedes all previous negotiations of the Revenue Agreement, proposals,
7 commitments, writings, advertisements, publications, and understandings of any nature
8 whatsoever unless expressly included in the Revenue Agreement. The Revenue
9 Agreement shall not be construed as if it had been prepared by one of the Parties, but
10 rather as if both Parties have prepared the Revenue Agreement. In the event of any
11 inconsistency in interpreting the documents which constitute the Revenue Agreement,
12 the inconsistency shall be resolved by giving precedence in the following descending
13 order of priority:
14 (a) The text of the Revenue Agreement without Exhibits;
15 (b) Revenue Agreement Exhibits;
16 (c) The Ground Lease;
17 (d) The Ground Lease Exhibits; and
18 (e) Further documents as defined in Section 41.22.
19 41.20. Modifications. The Revenue Agreement may not be amended or
20 modified except by a written amendment executed by the Parties' duly authorized
21 representatives in accordance with the laws of the State of California.
22 41.21. Further Documents. The Parties shall execute and deliver all documents
23 and perform all further acts that may be reasonably necessary to effectuate the
24 provisions of the Revenue Agreement. The County Director and Developer's
25 representatives shall be authorized to execute and deliver any and all such documents.
26 Any such documents shall be considered a part of the Revenue Agreement pursuant to
27 Section 41.20.
28
136
1 41.22. Interpretation of Revenue Agreement. The Revenue Agreement is
2 solely intended by the Parties to create a government funding mechanism pursuant to
3 section 15378 subdivision (b)(4) of Title 14 of the California Code of Regulations. It is
4 the Parties' intention that, to the greatest extent permitted by law, this Revenue
5 Agreement shall not be interpreted to require a commitment by either Party to any act
6 which would constitute a "project", as that term is defined under CEQA. If any clause or
7 provision of the Revenue Agreement is determined by a court having jurisdiction to
8 require a commitment by either Party which would constitute a project under CEQA,
9 that clause or provision shall be renegotiated by the Parties, in good faith, subject to the
10 express intention of the Parties provided herein, and the Revenue Agreement shall be
11 amended by the Parties so that such provision is in accordance with this Section 41 .22.
12 ARTICLE 42. EXHIBITS
13 42.1 Exhibits to Revenue Aqreement. All Exhibits are incorporated herein by
14 this reference:
15 Exhibit A — Ground Lease with Exhibits 1 and 2
16 Exhibit B — American Avenue Disposal Side (AADS) Site Plan
17 ARTICLE 43. ELECTRONIC SIGNATURES
18 43.1. The Parties agree that this Agreement may be executed by electronic
19 signature as provided in this section.
20 (A) An "electronic signature" means any symbol or process intended by an
21 individual signing this Agreement to represent their signature, including but not limited to
22 (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an
23 electronically scanned and transmitted (for example by PDF document) of a handwritten
24 signature.
25 (B) Each electronic signature affixed or attached to this Agreement (1) is
26 deemed equivalent to a valid original handwritten signature of the person signing this
27 Agreement for all purposes, including but not limited to evidentiary proof in any
28
137
1 administrative or judicial proceeding, and (2) has the same force and effect as the valid
2 original handwritten signature of that person.
3 (C) The provisions of this section satisfy the requirements of Civil Code
4 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code,
5 Division 3, Part 2, Title 2.5, beginning with section 1633.1).
6 (D) Each Party using a digital signature represents that it has undertaken and
7 satisfied the requirements of Government Code section 16.5, subdivision (a),
8 paragraphs (1) through (5), and agrees that each other Party may rely upon that
9 representation.
10 (E) This Agreement is not conditioned upon the Parties conducting the
11 transactions under it by electronic means and either Party may sign this Agreement with
12 an original handwritten signature.
13 WHEREFORE, the Parties hereto, by their signature herein below, enter into this
14 Revenue Agreement as of the Effective Date.
15 COUNTY OF FRESNO: DEVELOiP4
16 BY: BY:
17 BRIAN PACHECO, CHAIRMAN OF THE TITLE: ��
18 BOARD OF SUPERVISORS OF THE
COUNTY OF FRESNO
19 ATTEST:
BERNICE E. SEIDEL
20 CLERK OF THE BOARD OF
SUPERVISORS
21
BY:
22 DEPUTY
23 APPROVED AS TO LEGAL FORM:
LOZANO MITH, LLP
24
25 BY:
JEROME BEHRENS, PARTNER
26 FUND: 0700
27 SUBCLASS: 15000
ORG: 9026
28 ACCT: 5800
138
1 Exhibit A
2
3 THE GROUND LEASE AND PIPELINE AND UTILITIES RIGHT OF WAY
4 AGREEMENT
5 The Ground Lease and Pipeline and Utilities Right of Way Agreement ("Ground
6 Lease") is entered into by and between the County of Fresno as Lessor ("County" or
7 "Lessor") and Toro Energy of California AA, LLC as Lessee ("Developer" or "Lessee").
8 Lessor or Lessee individually may be referred to herein as a "Party" or
9 collectively may be referred to herein as the "Parties."
10 RECITALS
11 A. Lessor owns or operates the AADS Landfill located at 18950 W. American
12 Avenue, Kerman, California known as the American Avenue Disposal Site (AADS)
13 including County's LFG Management System.
14 B. Subject to Lessee's compliance with Article 7 of the Revenue Agreement
15 and other conditions precedent to entering the Ground Lease described in the Revenue
16 Agreement, Lessor and Lessee enter into (1) the Ground Lease for the Premises
17 located at the AADS Landfill as described in Section 3 below for the sole purposes set
18 forth in the Revenue Agreement and (2) the Revenue Agreement through which Lessee
19 (as Developer thereunder) will, at its sole cost and expense, under a comprehensive
20 Turnkey program, provide, develop, engineer, design, construct, finance, install,
21 implement, own, operate, and maintain Developer's Facilities in accordance with Good
22 Industry Practices, pursuant to the requirements of all Authorizations, Governmental
23 Approvals, and Applicable Laws and Regulations. Following Lessee's (as Developer
24 thereunder) completion, testing, and commissioning of Developer's Facilities, and
25 Lessor's (as County thereunder) Final Approval, Lessor (as County thereunder) will sell
26 to Lessee (as Developer thereunder), and Lessee (as Developer thereunder) will
27 purchase from Lessor (as County thereunder), all of the Allotted LFG captured by
28 Lessor (as County thereunder) from the County's LFG Management System at the
1
1 AADS Landfill and made available by Lessor (as County thereunder) to Lessee (as
2 Developer thereunder) during the Term of the Revenue Agreement, all in accordance
3 with and subject to the terms and conditions of the Revenue Agreement. The
4 definitions and provisions of the Revenue Agreement are incorporated herein by this
5 reference when references are made in this Ground Lease to the Revenue Agreement.
6 C. This Ground Lease is attached to the Revenue Agreement as Exhibit A.
7 Upon execution by the Parties, the Ground Lease will be incorporated into and made a
8 part of the Revenue Agreement. Through County Ordinance No. 2022-[
9 ], the County's Director is authorized to enter into this Ground Lease, as may be
10 modified pursuant to the Revenue Agreement, upon the final issuance of all
11 Governmental Approvals necessary for the Project or Developer's facilities, following
12 the exhaustion of any appeals period or completion of any appeals as may be
13 applicable.
14 1. Definitions.
15 All capitalized terms used below shall have the meaning set forth in
16 Revenue Agreement, unless otherwise defined herein.
17 2. Lessee's Interest.
18 Lessee's leasehold interest created by this Ground Lease is subject
19 to any and all easements, encumbrances, rights-of-way, and other matters of record at
20 the time the Ground Lease is executed.
21 Lessee represents and warrants that Lessee has fully inspected the
22 Premises and that the Premises is sufficient for purposes of this Ground Lease.
23 If Lessee desires a preliminary title report or other title search, it
24 may do so at its own cost.
25 3. Description of Ground Lease Premises.
26 For reference purposes only, the AADS Landfill Permitted
27 Boundary Area for the American Avenue Disposal Site is set forth in Exhibit B of the
28 Revenue Agreement. The Premises for the Ground Lease at the American Avenue
2
1 Disposal Site is set forth as Exhibits 1 and 2 to this Ground Lease. All references to
2 Exhibits 1 and 2 shall be referred to herein as the Premises. If the Premises needs to
3 be subsequently modified for the Ground Lease, subject to approval in writing by both
4 the County and Toro, the definition of the Premises shall be amended accordingly.
5 4. Lease of Premises.
6 Lessor, for and in consideration of performance by Developer of the
7 Revenue Agreement does hereby lease to Lessee, and Lessee hereby leases from
8 Lessor, subject to the terms and conditions of this Ground Lease and the Revenue
9 Agreement, the Premises for the sole purposes set forth in the Revenue Agreement.
10 Lessee shall not acquire any right, title, or interest in or to the
11 County's LFG Management System, or any part thereof. Lessee shall not acquire any
12 right, title, or interest in or to the Premises, or any part thereof, except for Lessee's right
13 to use the Premises, according to the terms and conditions, and for the purposes
14 expressly stated in this Ground Lease.
15 Lessor leases the Premises to Lessee in "as is" and "where is"
16 condition with all faults, whether known and unknown, in its existing condition as of the
17 Effective Date.
18 Lessor does not represent, warrant, or guarantee that the Premises
19 does now, or ever will, meet the requirements of Lessee to fulfill Lessee's obligations
20 under the Revenue Agreement. LESSEE SHALL CONDUCT ITS OWN DUE
21 DILIGENCE WITH RESPECT TO THE PREMISES AT ITS OWN COST AND
22 EXPENSE. TO THE EXTENT LESSOR HAS RECORDS OR INFORMATION THAT
23 WOULD ASSIST THE LESSEE IN ITS DUE DILIGENCE INQUIRIES, AND SUCH
24 INFORMATION IS REQUESTED BY LESSEE, THE LESSOR SHALL PROVIDE AT NO
25 COST TO LESSEE.
26 Lessor shall have no obligation whatsoever to make any
27 improvements to the Premises before or during the Term.
28 Lessor has made no representations, warranties, or guarantees
3
1 whatsoever, either express or implied in law, nor does Lessor make any herein
2 regarding the condition of the Premises or any part thereof including without limitation
3 the Premises' fitness for any particular use, purpose, or occupancy at any time.
4 Lessor further hereby specifically disclaims any representations,
5 warranties, and/or guarantees, both express and implied in law, with respect to the
6 condition or state of or suitability of the Premises, or any part thereof, for the use and
7 purposes permitted hereunder or any other purpose, and Lessor does not represent or
8 warrant that the Premises or any part thereof complies with any applicable laws relating
9 to the uses and occupancy thereof at any time.
10 Lessee has been given the opportunity to fully inspect and test the
11 Premises prior to the Effective Date. Lessee's execution of this Ground Lease shall be
12 conclusive evidence that Lessee is fully satisfied with the entire condition of the
13 Premises and has accepted the premises in its then existing condition as of the
14 Effective Date.
15 5. Term.
16 This Ground Lease shall commence upon the Effective Date and
17 shall continue in full force and effect, in accordance with all of its terms and conditions,
18 coextensive with the Term of the Revenue Agreement.
19 The Ground Lease shall automatically terminate upon the
20 termination of the Revenue Agreement, without the necessity of either or both of the
21 Parties giving or receiving notice of termination of this Ground Lease.
22 In the event that the Parties mutually agree, pursuant to the terms
23 and conditions of the Revenue Agreement, to enter into an amendment to extend the
24 length of the Term of the Revenue Agreement, such extended Term shall automatically
25 likewise extend the length of the Term for this Ground Lease without the necessity of
26 either or both of the Parties entering into an amendment to extend the length of the
27 Term for this Ground Lease; provided, however, the Parties may likewise enter into an
28 amendment to this Ground Lease to extend the length of the Term of this Ground Lease
4
1 to reflect that such Term is coextensive with the effectiveness and termination of the
2 Term for the Revenue Agreement.
3 When the Ground Lease terminates, all right, title and interest of
4 Lessee in the Premises shall thereupon terminate; provided, however, Lessee shall not
5 relinquish any rights to the Developer's Facilities; and further provided, if Lessee fails or
6 refuses to remove Developer's Facilities at the termination of the Ground Lease, Lessor
7 may remove or cause the removal of Developer's Facilities as abandoned property.
8 6. Rent.
9 The Premises described in Exhibit 1 and Exhibit 2 is on AADS
10 which is operated exclusively as a landfill under the direction of the County of Fresno
11 and has no other use for private developers except to extract landfill gas with developer
12 built and owned facilities (Developer's Facilities) which are not subsidized by the
13 County. Accordingly, the rent shall be assigned an amount of$1.00 annually during
14 the Term of the Revenue Agreement.
15 7. Taxes And Assessments.
16 Lessee acknowledges that California Revenue & Taxation Code §
17 107.6 provides, in part, the following:
18 "(a) The state or any local public entity of government, when
19 entering into a written contract with a private party whereby a possessory interest
20 subject to property taxation may be created, shall include, or cause to be included, in
21 that contract, a statement that the property interest may be subject to property taxation
22 if created, and that the party in whom the possessory interest is vested may be subject
23 to the payment of property taxes levied on the interest."
24 Lessee acknowledges and agrees that Lessee is a "local public
25 entity of government" and that this Ground Lease is a "contract" that creates a
26 possessory interest that is subject to property taxation pursuant to California Revenue &
27 Taxation Code § 107.6(a). In this respect, Lessee acknowledges and agrees that the
28 property interest created by this Ground Lease may be subject to property taxation, and
5
1 that Lessee (i.e., the party in whom the possessory interest is vested) may be subject to
2 payment of property taxes levied on such interest. Lessee agrees to pay any and all
3 possessory interest taxes and other taxes and assessments relating to use of the
4 Premises through the Revenue Agreement.
5 8. Use.
6 As long as Lessee timely pays all of the rents and observes and
7 keeps all of the covenants of this Ground Lease on its part to be kept, and so long as
8 Lessee (as "Developer" under the Revenue Agreement) makes all payments due to
9 Lessor (as "County" under the Revenue Agreement), and complies with all of the
10 convents, terms and conditions of the Revenue Agreement and this Ground Lease,
11 Lessee shall lawfully and peaceably hold, enjoy, and use the Premises during the Term
12 solely for the purposes of the Revenue Agreement and this Ground Lease, all of which
13 shall be pursuant to the terms and conditions of the Revenue Agreement and this
14 Ground Lease. During the Term, Lessee has the right, at its sole cost and expense, to
15 construct, operate and maintain the Developer's Facilities at the Premises for use
16 pursuant to the Revenue Agreement at the Premises. Title to the Developer's Facilities
17 shall be held by Lessee, subject to Section 11, herein.
18 Lessor and Lessee agree that, subject to the terms and conditions
19 of the Ground Lease, the Developer's Facilities shall be and remain the personal
20 property of Lessee and shall be deemed trade fixtures, to be promptly removed by
21 Lessee upon the termination of the Ground Lease without damage to the Premises.
22 Title to any alteration, change or addition to Developer's Facilities, thereto, which shall
23 be made subject to the Revenue Agreement, shall remain solely in Lessee.
24 Upon the termination of the Term, Lessee shall, at its sole cost and
25 expense, perform all of its obligations with respect to the tear down and removal of
26 Developer's Facilities, and the full restoration of the Premises, as more fully set forth in,
27 and pursuant to, Section 4.2, of the Revenue Agreement which is incorporated herein
28 by this reference.
6
1 9. Access to AADS Landfill and Premises.
2 Subject to Article 24 (Operations of Developer's Facilities) of the
3 Revenue Agreement, Lessor agrees to grant to Lessee a right-of-way across property
4 contiguous with the Premises, which is owned or controlled by Lessor and which may
5 be reasonably necessary in connection with Lessee's interconnection to the Transfer
6 Point, all at locations designated by Lessor. Lessor reserves the right to relocate the
7 right-of-way depending on the operation of the County's LFG Management System.
8 County shall provide to Developer copies of County's rules and
9 requirements that are applicable to persons who enter the AADS Landfill. Developer
10 shall comply, and shall cause all of Developer's officers, directors, employees, agents,
11 contractors, consultants, and invitees to comply all of County's rules and requirements,
12 when crossing onto County's property for ingress or egress to and from the Premises,
13 including any amendments to such County's rules and requirements, which County may
14 later provide to Developer.
15 To the extent required or directed by Lessor, Lessee shall construct
16 and maintain a fence which encloses the perimeter of the Premises of a height, size,
17 material, color and type subject to the reasonable approval of Lessor. Lessee shall
18 remove such fence at the time that Lessee performs its obligations with respect to the
19 tear down and removal of Developer's Facilities, and the full restoration of the Premises,
20 as provided in Section 4.2 of the Revenue Agreement.
21 10. Notice of Lessor's Non-Responsibility.
22 Lessor shall not be responsible for any claims arising from the
23 Work, or any other construction activity on or to the Premises; nor will Lessor be
24 responsible for any claims arising from any work, labor, services, equipment or
25 materials that have been, or that are being, or that may be furnished for or in connection
26 with said Work, or construction activity, on or at the Premises. The Work, or any other
27 construction activities, shall not be commenced on site until (a) ten (10) calendar days
28 after Lessee has delivered to Lessor a written notice stating the specific date that the
7
1 Work, or other construction activities, is to commence to allow Lessor time to
2 conspicuously post at the Premises and to record in the Office of County Recorder,
3 against the Premises a "notice of non responsibility" with respect to such Work or other
4 construction activities pursuant to California Civil Code § 3094, or any similar successor
5 statute; and (b) Lessor posts and records such "notice of nonresponsibility" as provided
6 herein. Such notice by Lessee to Lessor shall contain sufficient information that will
7 allow County to prepare such "notice of nonresponsibility." Lessor shall post and record
8 such "notice of nonresponsibility" and promptly provide Lessee proof of such recorded
9 "notice of nonresponsibility."
10 Lessor's County Administrative Officer, or Director of Public Works
11 and Planning, or their respective designees, is each authorized to execute and to cause
12 the posting and recording of any "notice of nonresponsibility" and to deliver proof of
13 same to Lessee.
14 11. Prohibition Against Lessee Creating Liens Against Premises
15 The Parties hereby covenant and agree that nothing in this Ground
16 Lease shall be construed to authorize Lessee to do or fail to do any act which will in any
17 way encumber the title, property interest, or the County's LFG Management System of
18 Lessor in or at the Premises, nor shall the interest or estate of the Lessor in the
19 Premises be in any way subject to or affected by any claim by way of lien or
20 encumbrance, whether by operation of law or by virtue of any express or implied
21 contract by Lessee, and any claim to or lien in connection with the Premises arising
22 from any act or omission of Lessee shall accrue only against the leasehold interest of
23 Lessee in this Ground Lease (Ground Lease Encumbrance) and shall in all respects be
24 subject and subordinate to the paramount title and rights of Lessor in and to the
25 Premises.
26 Lessee shall timely pay, when due, for all services, labor, and
27 materials furnished in the development and construction of the Developer's Facilities,
28 including any alteration or replacement, or operation or maintenance, thereof. Lessee
8
1 shall keep the Premises and Lessee's possessory interest therein free and clear of any
2 and all claims, liens and/or encumbrances of any kind whatsoever created by Lessee's
3 act or omissions, including, but not limited to, any mechanics', laborers' or material
4 men's lien on account of services, labor, or material furnished to the Lessee in
5 connection with the Work, including any work of any character performed or claimed to
6 have been performed on the Premises, regardless of whether it has or has not been
7 performed by or at the direction or permission of the Lessee. Lessee shall have the
8 right to contest in good faith and with reasonable diligence the validity of any claim
9 giving rise to such liens and/or encumbrances, but only if Lessee shall diligently take all
10 such actions to fully preserve and protect the paramount title and rights of Lessor in and
11 to the Premises.
12 12. Lessee's Compliance.
13 Lessee, at its sole cost and expense, shall use and occupy the
14 Premises under this Ground Lease, in accordance with all Good Industry Practices,
15 pursuant to the requirements of all Authorizations, Governmental Approvals, and
16 Applicable Laws and Regulations, taking into account, among other things, the health
17 and safety of persons working on our about the AADS Landfill and the healthfulness
18 and safety of the environment generally.
19 Subject always to Lessor's primary purpose as a public agency that
20 operates the AADS Landfill pursuant to its own requirements of all Authorizations,
21 Governmental Approvals, and Applicable Laws and Regulations, Lessee's rights and
22 the needs of the Developer's Facilities, including Developer's use of the Premises
23 pursuant to this Ground Lease, shall always be and remain secondary, and therefore
24 subject to, the AADS Landfill's operations and compliance with its own Authorizations,
25 Governmental Approvals, and Applicable Laws and Regulations. By way of example,
26 and not as a limitation, Developer's Facilities shall not cause or increase the risk of,
27 sub-surface fires in the AADS Landfill, sub-surface migration of LFG in the AADS
28 Landfill, or surface emissions of LFG from the AADS Landfill, in any such case that
9
1 would cause Lessor, including the AADS Landfill, and the County's LFG Management
2 System, to be in violation of its own requirements of Authorizations, Governmental
3 Approvals, and Applicable Laws and Regulations.
4 13. Condemnation.
5 In the event that the AADS Landfill, including the Premises, or a
6 part thereof sufficient to substantially interfere with the business for which the Premises
7 is to be used under this Ground Lease, shall be condemned, appropriated or otherwise
8 taken by a governmental authority, or access to the Premises is impaired by right of
9 eminent domain, Lessee shall have the right, within sixty (60) calendar days of receipt
10 of notice of such condemnation, to terminate this Ground Lease on sixty (60) calendar
11 days' written notice given to Lessor.
12 In no event, however, shall Lessee be entitled to, or share in any
13 recovery of, condemnation proceeds paid by any condemning authority with respect to
14 the AADS Landfill or the Premises. However, Lessee shall be entitled to recover
15 condemnation proceeds paid by any condemning authority with respect to the
16 Developer's Facilities. The Parties agree to request the court in such condemnation
17 proceedings to make separate awards to Lessor and Lessee, based on Lessor's sole
18 interest in the AADS Landfill and/or the Premises, on one hand, and Lessee's sole
19 interest in the Developer's Facilities, on the other hand. If, however, the court is
20 unwilling or unable to make separate awards, based on those sole and separate
21 interests of the Parties, Lessor and Lessee agree that the one award shall be equitably
22 apportioned between them to reflect their separate respective interests as provided in
23 this paragraph.
24 In the event that either Lessor or Lessee shall desire to challenge
25 the amount of a single award offered by the condemning authority for the AADS Landfill
26 (including the Premises) and the Developer's Facilities, while the other Party is willing to
27 accept it, the unwilling Party may make the challenge, including any administrative or
28 legal challenge desirable or necessary to for such purposes; provided, however, that the
10
1 challenging Party shall hold the willing Party completely harmless from any loss caused
2 thereby, including reduction in the final award, provided however, in the event that there
3 is a gain that will be paid by the awarding authority in connection with such challenge,
4 the gain shall be paid solely to the challenging party.
5 14. Hazardous Materials.
6 Lessee shall not maintain any hazardous materials at the Premises
7 as defined in Section 1.19 of the Revenue Agreement except as approved by the
8 Lessor and only as may be necessary by the Developer in the Revenue Agreement.
9 Lessee, as the Developer, shall fully comply with Article 32 of the Revenue Agreement.
10 15. Insurance.
11 Lessee, as the Developer, shall maintain the insurance coverages
12 as set forth in Article 34 of the Revenue Agreement.
13 16. Indemnification and Defense.
14 Lessee, as the Developer, shall fully indemnify and defend the
15 County, as Lessor, as set forth in Article 33 of the Revenue Agreement.
16 17. Ground Lease Events of Default.
17 Any or all of the following events or conditions shall constitute a
18 "Ground Lease Event of Default" by Lessee, or Lessor, respectively:
19 (a) Any failure by a Party to pay the other Party, or a third party
20 on behalf of a Party, any sum due under this Ground Lease for a period of more than
21 fifteen (15) calendar days after written notice by the other Party that such nonpaying
22 Party is delinquent in making payment;
23 (b) Any representation or warranty furnished by either Party to
24 the other Party with respect to this Ground Lease, or any part thereof, is false or
25 misleading in any material respect when made; or
26 (c) Any other material failure by a Party to perform or comply
27 with the terms of this Ground Lease, including breach of any covenant or warranty
28 contained herein, provided that such failure continues for thirty (30) calendar days after
11
1 notice to such Party demanding that such failure to perform be cured or if such cure
2 cannot reasonably be effected in such thirty (30) calendar days, the Party shall be
3 deemed not to have defaulted upon the prompt commencement of a cure within such
4 thirty (30) calendar days and (i) periodic notices, at reasonable intervals, given to the
5 other Party regarding the status and reasonably expected date that such cure will be
6 completed, and (ii) diligent subsequent completion thereof within a reasonable time.
7 In addition to and separate from the provisions of section 17(a) (b)
8 and (c), herein, any or all of the following events or conditions shall constitute a "Ground
9 Lease Event of Default" by Lessee:
10 (a) Lessee fails to comply with any or all of its obligations to
11 generate, handle, bring onto, use, store, treat, or transport any Hazardous Materials in
12 or about the Premises, as more fully set forth in and pursuant to, Section 14 (Hazardous
13 Materials) or to detect, remove, contain, and dispose of (but not at the AADS Landfill)
14 any Hazardous Materials in or about the Premises, as more fully set forth in and
15 pursuant to, Section 14, or to clean up the environment as more fully set forth in and
16 pursuant to Section 14.
17 (b) Lessee fails to comply with any or all of its obligations to
18 indemnify and defend Lessor, including its officers, officials, agents, and employees, as
19 more fully set forth in, and pursuant to, Section 16 herein.
20 (c) Lessor fails to comply with any or all of its obligations to
21 obtain and maintain insurance coverages, bonds, and performance security, as more
22 fully set forth in, and pursuant to, Article 34 (Insurance, Risk Of Loss, Bonds,
23 Performance Security) of the Revenue Agreement.
24 (d) Lessor fails, upon the termination of the Revenue
25 Agreement, to perform all of its obligations with respect to the tear down and removal of
26 Developer's Facilities, and the full restoration of the Premises, as more fully set forth in,
27 and pursuant to, Section 4.2 of the Revenue Agreement which is incorporated herein by
28 this reference.
12
1 (e) Lessee, in Lessor's reasonable judgment, violates any
2 material terms of this Ground Lease, including breach of any material covenant,
3 warranty or guaranty contained herein after fifteen (15) calendar days' written notice
4 thereof by Lessor to Lessee demanding that such violations cease, and such violations
5 remains uncorrected;
6 (f) Any liens, stop notices, claims, security interest or
7 encumbrances upon or against any of the AADS Landfill, County's LFG Management
8 System, the Premises, or any other properties of the County, by Lessee or any
9 subcontractor, including person providing labor, services, supervision, management,
10 services, equipment, supplies, goods or material for the Work, which is not released or
11 resolved to Lessor's satisfaction in twenty-one (21) calendar days;
12 (g) There is a breach or an event of default by Developer at any
13 time under any loan, promissory note, agreement, financing, or other financing or debt
14 instrument with any third party lender in connection with the Revenue Agreement and
15 Ground Lease.
16 (h) There is an Event of Default by Lessee (as "Developer"
17 under the Revenue Agreement) at any time in connection with the Revenue Agreement.
18 18. Remedies Upon Default.
19 If there is a Ground Lease Event of Default by Lessee, then Lessor
20 may serve written notice thereof upon Lessee. Such notice shall contain the reason or
21 reasons for the Ground Lease Event of Default, and, unless within ten (10) Days after
22 the serving of such notice, such Ground Lease Event of Default is cured, or is in the
23 process of being cured by the Lessee exercising due diligence, to Lessor's satisfaction,
24 Lessor may terminate the Ground Lease.
25 If a Ground Lease Event of Default by Lessee occurs, no remedy
26 or election of any remedy by Lessor under this Ground Lease, or as "County" under the
27 Revenue Agreement, shall be deemed exclusive but shall, wherever possible, be
28 cumulative with all other remedies provided herein, under the Revenue Agreement, and
13
1 at law or in equity. Lessor may, without a waiver of other remedies that exist in law or
2 equity or under this Ground Lease, and/or the Revenue Agreement, exercise any and
3 all rights and remedies under this Ground Lease, the Revenue Agreement, or at law or
4 equity, or institute other proceedings, including, without limitation, bringing an action or
5 actions from time to time for specific performance, and/or for the recovery of damages,
6 and/or for such other and further relief as the court may order.
7 Without affecting Lessor's rights and remedies under the Revenue
8 Agreement, as "County" thereunder, including any bond or performance security
9 received by Lessor, as "County" thereunder, or under the Ground Lease, Lessor may,
10 but is not obligated to, perform or employ others to undertake any work, service, or
11 function neglected by Lessee by any method Lessor may deem advisable under the
12 circumstances, in order to protect the AADS Landfill, County's LFG Management
13 System, including protection from any Governmental Enforcement Agency's actual or
14 threatened order, directive, demand, notice, of any violation or remedial action in
15 connection with the with Work or Developer's Facilities including the operations and
16 maintenance thereof. Any costs incurred by the County as Lessor shall be paid by the
17 Lessee, and Lessee shall be liable to Lessor for any such costs incurred by Lessor in
18 taking such actions. Lessor may take such actions after three (3) calendar days' written
19 notice thereof given to Lessee that the work, service, or function is still unperformed.
20 Notwithstanding anything to the contrary herein, in no event shall
21 any bond or performance security provided by Lessee as "Developer" to Lessor as
22 "County," or executed upon by Lessor as "County," as provided in the Revenue
23 Agreement, limit any of Lessor's rights or remedies as "County" against Lessee as
24 "Developer" under the Revenue Agreement, or limit any of Lessor's rights or remedies
25 against Lessee under this Ground Lease including termination of the Revenue
26 Agreement and termination of the Ground Lease.
27 If there is a Ground Lease Event of Default by Lessor, then Lessee
28 may serve written notice thereof upon Lessor. Such notice shall contain the reason or
14
1 reasons for the Ground Lease Event of Default, and, unless within ten (10) Days after
2 the serving of such notice, such Ground Lease Event of Default is cured, or is in the
3 process of being cured by the Lessee exercising due diligence, to Lessee's satisfaction,
4 Lessee may terminate the Ground Lease.
5 If a Ground Lease Event of Default by Lessor occurs, no remedy or
6 election of any remedy by Lessee under this Ground Lease, or as "Developer" under the
7 Revenue Agreement, shall be deemed exclusive but shall, wherever possible, be
8 cumulative with all other remedies provided herein, under the Revenue Agreement
9 (including Article 4, Termination of Revenue Agreement), and at law or in equity.
10 Lessee may, without a waiver of other remedies that exist in law or equity or under this
11 Ground Lease, and/or the Revenue Agreement, exercise any and all rights and
12 remedies under this Ground Lease, the Revenue Agreement, or at law or equity, or
13 institute other proceedings, including, without limitation, bringing an action or actions
14 from time to time for specific performance, and/or for the recovery of damages, and/or
15 for such other and further relief as the court may order; provided, however, any legal
16 action shall be subject to section 25.12 herein.
17 19. Sublease; Assignment.
18 Notwithstanding anything to the contrary contained in this Ground
19 Lease, or the Revenue Agreement, Lessee may not sublease, assign, or otherwise
20 transfer all or any part of its interest in this Ground Lease or in the Premises, without the
21 prior, express written consent of Lessor; provided, however, Lessee may assign,
22 mortgage, pledge, hypothecate or otherwise transfer its interest in trade fixtures to any
23 financing entity, or its agent, to whom Lessee has obligations for borrowed money or in
24 respect of guarantees thereof, or has financial obligations under or with respect to
25 letters of credit or similar credit facilities or in respect of guaranties thereof (individually
26 a "Third Party Lender" or collectively "Third Party Lenders"). In the event of any breach
27 or default by Lessee with respect to any such financial obligations to Third Party
28 Lenders that would entitle any such Third Party Lender to foreclose on, or exercise any
15
1 right or remedy with respect to, its interest in such trade fixtures, such foreclosure, or
2 exercise any right or remedy, with respect to such trade fixture shall not in any manner
3 whatsoever affect Lessor's right, title, or interest in or to the AADS Landfill, including the
4 Premises, or any part thereof. Lessor reserves the right to re-negotiate the Ground
5 Lease and provisions of the Revenue Agreement as a condition of approval, by way of
6 written consent, to any sublease assignment or other transfer described above.
7 Notwithstanding anything to the contrary herein, nothing contained
8 in this Ground Lease, including any consent given by Lessor for Lender to foreclose on
9 the trade fixtures or enter the Premises to remove any trade fixtures, shall cause or be
10 deemed to make:
11 (a) Lessor directly or indirectly responsible or liable for, or to
12 assume, succeed to, or guarantee, any obligations of Lessee under any financial
13 obligation or guarantee by Lessee, including any amounts borrowed or advanced, or
14 any payment of any charges, fees, premiums or penalties for failure to fully and timely
15 pay or otherwise discharge same when due, or payment any indemnity or defense
16 obligations;
17 (b) Lessor to be a debtor, or indebted to the Third Party Lender,
18 in any way whatsoever for Lessee's obligations with respect to such Third Party Lender;
19 (c) The AADS Landfill or Premises, or any part thereof to be any
20 part of the Third Party Lender's collateral, or
21 (d) Grant or otherwise convey any interest in AADS Landfill or
22 Premises, or any part thereof, to Third Party Lender.
23 Lessee agrees, for the benefit of Lessor, that Lessee shall
24 remain solely responsible for paying the entire amount of any obligations with respect to
25 the Third Party Lender, including any other amounts that the Third Party Lender may
26 charge or recover from Lessee in connection therewith.
27 Any dispute between any Third Party Lender and Lessee
28 with respect to any breach of, or default in the performance of, any obligation by the
16
1 Third Party Lender or Lessee under the terms and conditions of any loan, or under any
2 other agreement between them, the extent or nature of such breach or default, or
3 Lender's exercise of any right or remedy against Lessee affects this Ground Lease,
4 including Lender obtaining entry of the Premises and removal of Lender's collateral
5 under the terms and conditions of the loan, shall be dealt with and adjusted solely
6 between the Third Party Lender and Lessee. Lessor shall not be named or joined in any
7 such dispute between the Third Party Lender and Lessee, or in any other proceedings
8 brought by or on behalf of the Third Party Lender to enforce any loan made to the
9 Lessee.
10 If any action or consent is required from the Lessor, the
11 Third Party Lender shall expressly agree for the benefit of Lessor to indemnify, defend,
12 and hold harmless the Lessor, including its respective agents, representatives, officers,
13 directors, employees, successors and assigns from any and all claims, actions,
14 expenses, causes of action, suits, or judgments for any property damage, personal
15 injury or loss of life (including reasonable attorneys' fees and costs), arising from or in
16 any way connected to any acts or omissions of the Third Party Lender, or its officers,
17 employees, agents, contractors, or consultants, including, but not limited to, any
18 expense, loss or liability for damage to the Real Property or any property located
19 thereon arising from the Third Party Lender's removal of its collateral on the Premises.
20 20. Binding Effect.
21 Subject to execution of the Revenue Agreement, this Ground Lease
22 shall be binding upon and inure to the benefit of the Parties and their respective.
23 However, termination of the Revenue Agreement shall automatically result in
24 termination of the Ground Lease except for those provisions regarding performance of
25 Lessor's obligations after termination of the Ground Lease.
26 21. No Brokers.
27 Lessor and Lessee represent and warrant to each other that they
28 have not dealt with any real estate agent or broker, and that no brokerage commission
17
1 or fee, or other form of compensation, such as a finder's fee, or reimbursement of costs
2 or expenses is owed by either Party to any third party, including, but not limited to, any
3 real estate agent or broker, with respect to Lessor's selection of Lessee to enter into this
4 Ground Lease, or the creation or execution of the Revenue Agreement and/or this
5 Ground Lease. Each Party hereby indemnifies, defends, and saves and holds harmless
6 the other Party from and against any and all claims or demands by any third party, but
7 not limited to, any real estate agent or broker, for any brokerage commission or fee, or
8 other form of compensation, such as a finder's fee, or reimbursement of costs or
9 expenses of any kind (including attorney's fees and costs) arising out of a breach of the
10 foregoing representation and warranty by the indemnifying Party.
11 22. Representations of Both Parties.
12 Each Party warrants and represents to the other Party that:
13 (a) It has all requisite power, authority, corporate or otherwise,
14 to authorize the approval of, to execute and to deliver this Ground Lease to the other
15 Party, and to perform its obligations hereunder;
16 (b) During the Term, it shall continue to have all requisite power,
17 authority, corporate or otherwise, to perform its obligations hereunder;
18 (c) Its execution, delivery, and performance of this Ground
19 Lease have been duly authorized by, or are in accordance with, its organizational
20 instruments (for Lessee its articles of incorporation, by laws, corporate resolutions and
21 the like; for Lessor, all applicable laws and its Charter), and this Ground Lease has
22 been duly executed and delivered for it by the signatories so authorized and it
23 constitutes its legal, valid, and binding obligation of such Party enforceable against such
24 party according to its terms and conditions;
25 (d) The officer executing this Ground Lease for and on behalf of
26 such Party is duly authorized by such Party to bind such party to this Ground Lease,
27 regardless of whether such person later does not hold such office, or have such
28 authority, at the time of the Parties' performance of this Ground Lease.
18
1 23. Additional Representations of Lessor.
2 Lessor hereby warrants, represents and promises to Lessee that:
3 (a) Lessor is a duly constituted political subdivision of the State
4 of California. Lessor is authorized under the Constitution and laws of the State of
5 California to enter into this Ground Lease, each transaction contemplated hereby, and
6 to perform all of its obligations under this Ground Lease.
7 (b) Lessor has the authority to lease the Premises;
8 (c) Lessor does not have any leases with other persons or
9 entities regarding the lease or use of the Premises.
10 (d) The authorization, approval and execution of this Ground
11 Lease and all other proceedings of Lessor relating to the transactions contemplated
12 thereby have been performed in accordance with applicable laws.
13 (e) The execution and delivery of this Ground Lease by Lessor
14 and the performance of the terms, covenants and conditions contained herein will not
15 violate the Charter of Lessee, or any order of a court or arbitrator, does not and will not
16 conflict with and will not constitute a material breach of, or default under, the provisions
17 of any material agreement by which Lessor is bound.
18 24. Additional Representations by Lessee.
19 Lessee hereby warrants, represents and promises to Lessor that:
20 (a) Lessee is a duly constituted limited liability company in good
21 standing in the State of California, and is authorized to conduct business in the State of
22 California.
23 (b) Lessee has made all necessary inquiries, concerning the
24 subject matter of this Ground Lease and Revenue Agreement, to enable Lessee to
25 provide, develop, engineer, design, construct, finance, install, implement, and own the
26 Developer's Facilities, all in conformity with the Revenue Agreement and this Ground
27 Lease.
28 (c) The execution and delivery of this Ground Lease by Lessee
19
1 and the performance of the terms, covenants and conditions contained herein will not
2 violate the provisions of the limited liability company of Lessee, or any order of a court
3 or arbitrator, does not and will not conflict with and will not constitute a material breach
4 of, or default under, the provisions of any material agreement by which Lessee is
5 bound.
6 25. Miscellaneous Provisions.
7 For ease of reference, the following subtitles are added to this
8 section:
9 25.1 Independent Contractor. In performance of the work,
10 services, duties, and obligations assumed by Lessee under this Ground Lease, it is
11 mutually understood and agreed that Lessee, including any and all of Lessee's officers,
12 agents, employees and subcontractors will at all times be acting and performing as an
13 independent contractor, and shall act in an independent capacity and not as an officer,
14 official, agent, servant, employee, joint venturer, partner, representative, or associate of
15 the Lessor. The Lessor does not in any way assume any of the contractual or other
16 obligations of Lessee to other parties, including, without limitation, subcontractors,
17 under any agreements referred to herein or otherwise. Furthermore, Lessor shall have
18 no right, or obligation, to control or supervise or direct the manner or method by which
19 Lessee shall perform its work and other obligations under this Ground Lease; provided,
20 however, Lessor shall retain the right to administer this Ground Lease so as to verify
21 that Lessee is performing its work and other obligations in accordance with the terms
22 and conditions thereof. Lessee shall comply with all applicable provisions of law and
23 rules and regulations.
24 (a) Because of its status as an independent contractor, Lessee
25 shall not have any employment rights or benefits available to Lessor's employees.
26 Lessee shall be solely liable and responsible for providing to, or on behalf of, its
27 employees all legally-required employee benefits. In addition, Lessee shall be solely
28 responsible and save Lessor harmless from all matters relating to payment of Lessee's
20
1 employees, including compliance with Social Security, taxes or assessments, and all
2 other regulations governing such matters. It is acknowledged that during the term of
3 this Ground Lease, Lessee may be providing services and work to others unrelated to
4 the Lessor or to this Ground Lease; provided, however, Lessee's provision of such other
5 services shall not interfere with Lessee's performance of its obligations under this
6 Ground Lease.
7 (b) Nothing in this Ground Lease makes, nor is it intended to
8 make, Lessor liable to or for, or create any agency or privity relationship between or
9 among any of the subcontractors, on the one hand, and Lessor, on the other hand.
10 25.2 Lessor's Inspection of Premises; Lessee's Responsibilities.
11 Lessor, including its agents, shall have the right, upon reasonable notice and during
12 normal business hours, to enter the Premises to inspect Lessee's use of the Premises
13 from time to time during the Term. Such entry and inspection by Lessor of Lessee's use
14 of the Premises will be for the purposes of Lessor administering this Ground Lease,
15 including Lessor confirming that Lessee is performing its obligations pursuant to the
16 terms and conditions of this Ground Lease and pursuant to the Revenue Agreement;
17 provided, however, such entry and inspection by Lessor shall not create any obligation
18 of Lessor with respect to Lessee's use of the Premises.
19 In the event of emergency, Lessor shall have the right to
20 immediately enter the Premises and to investigate, and take appropriate action, any
21 event or condition occurring on or about the Premises from time to time during the
22 Term. In such event of emergency, Lessor will thereafter give Lessee notice of such
23 entry, and of any such action, as soon as reasonably practical under the circumstances.
24 Notwithstanding anything stated to the contrary in this Ground
25 Lease, any inspection, examination, approval, or test by Lessor, or any failure to
26 undertake same, in whole or in part, shall not relieve Lessee of its responsibility as
27 "Developer" under the Revenue Agreement concerning the development, engineering,
28 design, construction, installation, completion, and implementation of the Developer's
21
1 Facilities in compliance with the Approved Plans and Specifications, and Lessee's other
2 contractual obligations as "Developer" to Lessor as "County" under the Revenue
3 Agreement.
4 25.3 Audits and Inspections. Lessee shall at any time during
5 business hours, and as often as the Lessor may deem necessary, make available to the
6 Lessor for examination all of its records, agreements with subcontractors and data with
7 respect to the matters covered by this Ground Lease. Lessee, upon request by the
8 Lessor, shall permit the Lessor to audit and inspect all of such records, agreements with
9 subcontractors and data necessary to ensure Lessee's compliance with the terms and
10 conditions of this Ground Lease. Lessee shall be subject to the examination and audit of
11 the California Auditor General to the extent that Government Code § 8546.7 may apply.
12 Lessee shall retain all such records and data for at least five (5) years after termination of
13 the Ground Lease to permit any such audit and inspection.
14 25.4 No Waiver. The failure of Lessee or Lessor to insist upon the
15 strict performance of the terms and conditions hereof by the other Party shall not
16 constitute or be construed as a waiver or relinquishment of either Party's right to
17 thereafter enforce the same in accordance with this Ground Lease in the event of a
18 continuing or subsequent Ground Lease Event of Default on the part of Lessee or
19 Lessor, respectively.
20 25.5 Applicable Laws and Regulations. This Ground Lease and
21 the construction and enforceability thereof shall be interpreted under and in accordance
22 with the Applicable Laws and Regulations of the State of California. If either Party
23 initiates any legal or equitable action to enforce the terms or conditions of this Ground
24 Lease, to declare the rights or obligations of the Parties under this Ground Lease or
25 which relates to this Ground Lease in any manner, the Parties agree that the place of
26 making and for performance of this Ground Lease shall be Fresno County, State of
27 California, and the proper venue for any such action is only the Superior Court of the
28 State of California, in and for the County of Fresno, unless the amount in controversy
22
1 falls below the jurisdiction of the Superior Court.
2 25.6. No Conflict of Interest. Lessee, during the performance of
3 the Revenue Agreement and Ground Lease, may become subject to California
4 Government Code sections 1090 et seq., §§ 87100 et seq., and other conflicts of
5 interest laws (collectively, conflicts of interest laws). Lessee promises, covenants, and
6 warrants that, after having performed a reasonable investigation, the performance of the
7 Work and its obligations under this Ground Lease shall not result in or cause Lessee to
8 violate California's conflicts of interest laws.
9 25.7. Disclosure of Self-Dealing Transactions. This provision is
10 only applicable if Lessee is operating as a corporation or if during the term of this
11 Ground Lease, Lessee changes its status to operate as a corporation. Members of
12 Lessee's Board of Directors shall disclose to Lessor any self-dealing transactions
13 related to the performance of the Ground Lease or the Revenue Agreement.
14 25.8. Notice. Any notice required or permitted hereunder shall be
15 deemed sufficient if given in writing by (i) delivered personally; (ii) sent and received by
16 United States Mail, return receipt requested; (iii) sent and received by commercial
17 overnight courier services with proof of delivery; or (iv) sent and received by telephonic
18 facsimile if the sender's facsimile machine provides a time stamp when such facsimile
19 was made (unless the time stamp is manifestly in error), to the addresses or facsimile
20 numbers shown below:
21
To Lessee: Toro Energy of California AA LLC
22 5900 Southwest Parkway
Bldg 2 Suite 220
23 Austin, TX 78735
24 Fax: (512)-494-4341
To Lessor: County of Fresno
25 Director of Public Works and Planning
2220 Tulare Street, Suite 800
26 Fresno, California 93721
27 Telephonic Facsimile: (559) 600-4548
28
23
With copy to: County of Fresno
1 Resources Division
Department of Public Works and Planning
2 2220 Tulare Street, Suite 600
Fresno, California 93721
3 Telephonic Facsimile: (559) 600-4552
4 For notices of Ground Lease Events of Default by Lessor, with a copy to:
5 Office of Fresno County Counsel
2220 Tulare Street, Fifth Floor
6 Fresno, California 93721
7 Telephonic Facsimile: (559) 600-3480
8 Either Party may change its foregoing address or telephonic
9 facsimile number for receiving notice by giving written notice thereof in any one of the
10 manners provided in this section.
11 25.9. Headings and References. Headings and subtitles used
12 throughout this Ground Lease are for the purpose of convenience only, and no heading
13 or subtitle shall modify or be used to interpret the text of any section or article. Any and
14 all references to sections, articles, and/or exhibits shall mean, unless otherwise stated,
15 sections, articles, and/or exhibits to this Ground Lease.
16 25.10. Counterparts. This Ground Lease may be executed by the
17 Parties in any number of counterparts, each of which shall be deemed an original
18 Ground Lease, but all of which collectively constitutes one and the same Ground Lease.
19 25.11 . No Third Party Beneficiaries. There are no third-party
20 beneficiaries to this Ground Lease. Nothing contained herein, or any other person or
21 arrangement referred to herein shall create a legal or contractual relationship between
22 the Lessor in favor of such third-party, including, without limitation, Lessee's
23 subcontractors, and providers of materials, goods and services, any Utility, any
24 Governmental Enforcement Agency, any other governmental entity or agency or officer
25 or official thereof, or any member of the public.
26 25.12. No Waiver of Governmental Privileges and Immunities.
27 This Ground Lease does not alter or affect, nor does it cause a waiver of, the Lessor's
28 (including its officers, officials, agents, and employees) privileges and immunities under
24
1 the California Constitution and statutes thereunder, including, without limitation, the
2 provisions concerning the presentation of claims and of actions against the Lessor
3 (including its officers, officials, agents, and employees) under the Division 3.6 of Title 1
4 of the California Government Code (§§ 810 to 996.4, inclusive).
5 25.13. No Waiver of Confidentiality Privileges. Nothing contained
6 in this Ground Lease shall require either Party to provide or disclose to the other Party,
7 or to a third party, any records, data or information which is exempt from disclosure to
8 such other Party or third parties under the attorney-client communication privilege or
9 attorney work product privilege, or any records, data or information which are legally
10 required to be kept confidential, unless and until disclosure thereof otherwise is ordered
11 by a court of competent jurisdiction. The parties agree that such information retained by
12 Lessor are exempt from disclosure, and are not public records, under California
13 Government Code § 6254(k).
14 25.14. News Releases. Lessee shall not issue any news releases
15 or otherwise release similar information to the public concerning this Ground Lease
16 without the prior written approval of the County Project Administrator.
17 25.15. Severability. In the event that any clause or provision of this
18 Ground Lease or any part thereof shall be declared invalid, void, or unenforceable by
19 any court having jurisdiction, such invalidity shall not effect the validity or enforceability
20 of the remaining portions of this Ground Lease unless the result would be manifestly
21 inequitable or unconscionable or unlawful.
22 25.16. Time of Essence. Time is of the essence in the Lessee's
23 performance of its obligations under this Ground Lease.
24 25.17. Entire Agreement. This Ground Lease, together with all
25 Exhibits, shall constitute the entire and integrated Ground Lease Agreement by and
26 between the Lessor and the Lessee with respect to the subject matter hereof and
27 supersedes all previous negotiations of the Ground Lease, proposals, commitments,
28 writings, advertisements, publications, and understandings of any nature whatsoever
25
1 unless expressly included in the Ground Lease. The Ground Lease shall not be
2 construed as if it had been prepared by one of the Parties, but rather as if both Parties
3 have prepared the Ground Lease. In the event of any inconsistency in interpreting the
4 documents which constitute the Ground Lease, the inconsistency shall be resolved by
5 giving precedence in the following descending order of priority:
6 (a) The text of the Ground Lease without Exhibits;
7 (b) Ground Lease Exhibits; and
8 (c) Provisions and definitions referenced herein which are
9 referenced in the Revenue Agreement; and
10 (d) Further documents as defined in Section 25.19.
11 In the event of any inconsistency between the Revenue Agreement and the Ground
12 Lease, the Revenue Agreement shall govern.
13 25.18. Modifications. The Revenue Agreement may not be
14 amended or modified except by a written amendment executed by the Parties' duly
15 authorized representatives in accordance with the laws of the State of California.
16 25.19. Further Documents. The parties shall execute and deliver
17 all documents and perform all further acts that may be reasonably necessary to
18 effectuate the provisions of the Ground Lease. The Lessor's representative and
19 Lessee's representative shall be authorized to execute and deliver any and all such
20 documents.
21
22
23
24
25
26
27
28
26
1 26. Memorandum of Lease.
2 If requested by either Party, a Memorandum of Lease shall be prepared stating
3 the existence of the Ground Lease, a description of the Premises, a diagram of the
4 Premises as it relates to the AADS Landfill, the purpose of the Ground Lease, and the
5 term of the Ground Lease. Reference in the Memorandum of Lease shall be made to
6 the Ground Lease for further particulars and shall be executed by both the Lessor and
7 the Lessee. The Memorandum shall be recorded in the records of the Office of the
8 Fresno County Recorder.
9 27. Electronic Signatures.
10 The Parties agree that this Ground Lease may be executed by electronic
11 signature as provided in this section.
12 (A) An "electronic signature" means any symbol or process intended by an
13 individual signing this Ground Lease to represent their signature, including but not
14 limited to (1) a digital signature; (2) a faxed version of an original handwritten signature;
15 or (3) an electronically scanned and transmitted (for example by PDF document) of a
16 handwritten signature.
17 (B) Each electronic signature affixed or attached to this Ground Lease (1) is
18 deemed equivalent to a valid original handwritten signature of the person signing this
19 Ground Lease for all purposes, including but not limited to evidentiary proof in any
20 administrative or judicial proceeding, and (2) has the same force and effect as the valid
21 original handwritten signature of that person.
22 (C) The provisions of this section satisfy the requirements of Civil Code
23 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code,
24 Division 3, Part 2, Title 2.5, beginning with section 1633.1).
25 (D) Each Party using a digital signature represents that it has undertaken and
26 satisfied the requirements of Government Code section 16.5, subdivision (a),
27 paragraphs (1) through (5), and agrees that each other Party may rely upon that
28 representation.
27
1 (E) This Ground Lease is not conditioned upon the Parties conducting the
2 transactions under it by electronic means and either Party may sign this Ground Lease
3 with an original handwritten signature.
4 WHEREFORE, the Parties hereto, by their signatures herein below, enter into
5 this Ground Lease which shall not become a binding and enforceable agreement until
6 the conditions are complied with as set forth in the Revenue Agreement.
7
COUNTY OF FRESNO
8
9 BY:
STEVEN E. WHITE, PE, PLS,
10 DIRECTOR
DEPARTMENT OF PUBLIC
11 WORKS AND PLANNING
12
TORO ENERGY OF CALIFORNIA AA,
13 LLC
14 BY:
15 TITLE:
16
17 APPROVED AS TO ACCOUNTING
FORM
18
BY:
19 OSCAR J. GARCIA, C.P.A.,
AUDITOR-CONTROLLER/
20 TREASURER-TAX COLLECTOR
21
APPROVED AS TO LEGAL FORM:
22 LOZANO SMITH, LLP
23
BY:
24 JEROME M. BEHRENS, PARTNER
25
26 FUND: 0700
SUBCLASS: 15000
27 ORG: 9026
ACCT. 3404
28
28
EXHIBIT 1 1 W } 33 SEC 14/17
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EXHIBIT 1y�
� 15,000 SQ. FT. +,L
0.34 ACRES +/- 1 N90.00 00"E 4.00'
29.51'
0
o
o
o �
b
fN
i N90.00'00, ! N90'00'00"W
EXHIBIT 1 PROPERTY DESCRIPTION: 117.83' 96.30' o
BEGINNING at the Southeast Corner of Section 32, Township 14 South, Range 17 East, Mount coo
o
Diablo Base and Meridian, according to the Official Government Plat thereof; thence NO'00'03"W LOz
along the East Line of the Southeast Quarter of said Section 32, 556.34 feet; thence
N90'00'00"W, 96.30 feet to the TRUE POINT OF BEGINNING; thence N90'00'00"W, 117.83 feet;
thence NO'00'00"E, 149.43 feet; thence N90'00'00"E, 88.31 feet; thence SO'00'00"E, 88.32';
thence N90'00'00"E, 29.51 feet; thence SO'00'00"E, 61'.11 feet ,to the TRUE POINT OF BEGINNING.
[Approximately 0.34 Acres] SE COR SEC 32 14/17
DATE:
FD FCBCM DN 6"
� copy, HORIZONTAL SCALE:
SURVEYED:LV, SA, GD 07/20 ti'`` �� Ground Lease
DRAWN: LV, MM 02/22 Premises 0 5 15 30 60 Feet
O� �O
CHECKED: MM 02/22 FgEs
EXHIBIT 2 W I SEC 33 14/17
FD J"IP NO TAG DN 6"
o .
EXIT 1 AM 'o g
zN
I I
9 28 0gp '� N90'00 00 W 17 9'
/ /
AC Parking Lot
20 00' EXHIBIT 2 PROPERTY DESCRIPTION:
/ BEGINNING at the Southeast Corner of Section 32, Township 14 South,
Range 17 East, Mount Diablo Base and Meridian, according to the
J 0 Official Government Plat thereof; thence NO'00'03"W along the East
06 f 6 Line of the Southeast Quarter of said Section 32, 556.34 feet;
N thence N90'00'00"W, 174.69 feet to the TRUE POINT OF BEGINNING; M
LO
w thence N90'00'00"W, 20.00 feet; thence S00'00'00"E, 528.74 feet to
m N a the north right of way line for American Avenue; thence N89'17'30"E, LO
= along the north right of way line for American Avenue, 20.00 feet;
``' w N w thence N00'00'00"E, 528.50 feet to the TRUE OF POINT BEGINNING.
0 0 o g co
o oo [Approximately 0.24 Acres] o
0 0
koik Z z
15.00'-
26.061/
N89°17'30"E j
W
O Q
O Q
O O
O 1n
N SEC 5 15/17
F FCBCM DN B" � AMERICAN AVENUE
389'17'90"W 2489.94' 38t1'17'90"If 174.71' SE COR SEC 32 14/17
FD FCBCM ON 6"
o/20 ��� co HORIZONTAL
HORIZONTAL SCALE:
SURVEYED:LV, SA, Go
Ground Lease
LV, MM o2/22 4 5 1,5 3,0 6,0 Feet
DRAWN:- o Premises y I
CHECKED: MM 02/22
Exhibit B- AADS Site Plan
�— PHASE III �J
FILL AREA
AMERICAN AVENUE DISPOSAL SITE
18950 W. AMERICAN AVE
KERMAN, CA 93636
BOUNDARY LINE
SOIL STOCKPILE AREA
i
II PHASE II PH (EIAREA FILL AR FILL
YED RO D TO BE RELOCATED
PRIOR TO PHASE III
DEVELOPMENT
APPROXIMATE GROUND
LEASE LOCATION
F HE
I Elm
rate
PHASE II _
FILL AREA
PAVED RDA r HHW PHASE III
PHASE I FILL AREA ,
DRAINAGE BASIN nao suwi FILL AREA /i��1
L_
BOUNDARY LINE 6' CHAIN LINK FENCE BOUNDARY LINE
AMERICAN AVE. MAIN ENTRANCE EDGE OF PAVEMENT