AMENDED AND RESTATED GAS
LEASE AGREEMENT
OLINDA/OLINDA ALPHA
LANDFILL
BOARD OF SUPERVISORS
ORANGE COUNTY, CALIFORNIA MINUTES December 14, 1993
PUBLIC HEARING -- AMENDED AND RESTATED GAS LEASE AGREEMENT WITH GSF ENERGY,
INC. FOR OLINDA/OLINDA ALPHA LANDFILL: Integrated Waste Management
Department requests approval of an amended and restated gas lease agreement
for development of the landfill gas rights and landfill gas utilization
systems at the Olinda/Olinda Alpha Landfill.
Supervisor ▇▇▇▇▇▇▇ commented that the amendment provides for the
construction of a flare to comply with regulations and to protect public
health and safety. Also, the amendment extends the lease to match the
terms of GSF's agreement with Southern California Edison and gives GSF
additional incentives to sell electricity generated by its gas collection
system.
Chairman ▇▇▇▇▇▇ opened the public hearing and asked if anyone wished to
address the board on the matter. Hearing no response, she declared the
public hearing closed.
Supervisor ▇▇▇▇▇▇▇ pointed out that the County was receiving in excess of
$350,000 a year in royalties from the project, and that the amendment and
restated gas lease agreement would help to ensure future proceeds.
MOTION: On motion by Supervisor ▇▇▇▇▇▇▇, seconded by Supervisor ▇▇▇▇▇, the
Board moved to: 1. Find that the construction of the flare facility is
categorically exempt, Class 1(f) and 29, from the provisions of the
California Environmental Quality Act. 2. Find that: (a) the anticipated
cost to the County for electrical energy provided by the energy
conservation facility under the proposed Amended and Restated Gas Lease
Agreement will be less than the anticipated marginal cost to the County of
electrical energy that would have been consumed by the county in the
absence of those purchases, and (b) the difference, if any, between the
fair rental value of the real property subject to the facility ground lease
and the agreed rent, is anticipated to offset by below-market energy
purchases or other benefits provided under the Amended and Restated Gas
Lease Agreement. 3. Authorize execution of the Amended and Restated Gas
Lease Agreement with GSF Energy, Inc., to: (a) construct the flare facility
for the County, and (b) pursue construction of additional electrical
generation capacity if GSF Energy, Inc. is successful in its bid to
Southern California Edison. MOTION UNANIMOUSLY CARRIED.
AMENDED AND RESTATED
GAS LEASE AGREEMENT
THIS AMENDED AND RESTATED GAS LEASE AGREEMENT is made December 14, 1993, by
and between the COUNTY OF ORANGE, a political subdivision of the state of
California, hereinafter referred to as "LESSOR" and GSF ENERGY INC., a
Delaware corporation (successor in interest to Getty Synthetic Fuels, Inc.)
hereinafter referred as "LESSEE".
RECITALS
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ entered into a Gas Lease Agreement ("Original
Lease") dated for reference February 12, 1981, granting LESSEE the right to
the Refuse Gas and/or Constituent Products produced and recovered from
▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ Canyon portion of the Landfill.
II. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ entered into a First Amendment to Gas Lease
Agreement ("First Amendment") on May 2, 1989, which extended the scope of
the Lease interest to include the Alpha Canyon portion of the Landfill on
an interim basis.
III. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ entered into a Second Amendment to the Gas Lease
Agreement ("Second Amendment") on March 30, 1993, which extended the term
of the Original Lease and provided for certain modifications and
maintenance work to be performed thereunder with respect to the Alpha
Canyon Refuse Gas Collection System.
IV. ▇▇▇▇▇▇ is the owner and operator of the municipal solid waste
Landfill and is required by various regulatory entities to control
migration and emission of Refuse Gas produced by the decomposition of
refuse within the Landfill. LESSOR desires to expand the current Refuse
Gas Collection System so as to meet regulatory requirements and utilize the
energy potential of the Refuse Gas in a more efficient manner than would
result if the Refuse Gas were simply flared.
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ now desire to further amend the Original Lease as
amended by the First Amendment and the Second Amendment ("Amended Lease")
in order to create an integrated Refuse Gas recovery program at the
Landfill that will more efficiently utilize the energy potential of the
Refuse Gas and will also include a Refuse Gas Flare Facility required to
comply with regulations and to protect public health and safety.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, LESSOR and ▇▇▇▇▇▇, intending to be legally bound, do
mutually agree that, effective as of the date written above, the Lease
shall be further amended and restated, and this Amended and Restated Gas
Lease Agreement (the "Lease") shall supersede and replace all prior
leases and amendments thereto between ▇▇▇▇▇▇ and ▇▇▇▇▇▇ and their
predecessors concerning Refuse Gas at the Landfill as follows:
1. Lease Interest. LESSOR hereby grants and leases exclusively to
LESSEE, it successors and assigns, all rights to the Refuse Gas and/or
Constituent Products (solely for the purposes of collecting, testing,
treating, processing, selling, operating for, and producing said Refuse Gas
and/or Constituent Products), which are produced and recovered from the
land utilized as a landfill located in the County of Orange, State of
California, and described in Exhibit "I" (attached hereto and made a part
hereof and herein referred to as the "Landfill").
Notwithstanding anything herein to the contrary, LESSOR and LESSEE
recognize that LESSOR may be required to install and operate a migration
control system at the Landfill which, if so installed and operated, shall
be compatible with LESSEE's recovery system to the extent feasible.
2. Definitions.
2.1 Refuse Gas. "Refuse Gas" shall mean the mixture of methane,
carbon dioxide and other gases produced by the anaerobic decomposition of
refuse material within the Landfill.
2.2 Constituent Products. "Constituent Products" shall mean any and
all components or products recovered in association with Refuse Gas.
2.3 Project. The "Project" shall include all facilities, activities,
and efforts associated with the recovery and sale of Refuse Gas and/or
Constituent Products from the Landfill, including the New Project.
The "New Project" shall include all facilities, activities, and efforts
associated with the recovery and sale of Refuse Gas and/or Constituent
Products from the Landfill, not including the Flare Facilities and not
including the existing 5.0 Megawatt (MW) power generating facility which
achieved firm operation on or about January 1, 1985.
2.4 Commercial Quantities. "Commercial Quantities" shall mean
amounts deemed by LESSEE in its sole judgment to be sufficient to pay for
all costs of the Project, including operation and maintenance expenses
associated therewith, plus a reasonable profit.
2.5 Force Majeure. The term "Force Majeure" as used herein shall
mean any act of God or the elements, accident, casualty, labor
disturbances, unavailability or delays in delivery of any product, labor,
fuel, service or materials, or any other event or condition beyond the
control of either party.
2.6 New Project Schedule. The "New Project Schedule" (attached
hereto as Exhibit "II" and by reference made a part hereof) is the schedule
of LESSEE's progressive milestones for the New Project.
2.7 Accounting Year. "Accounting Year" shall mean a period of twelve
(12) consecutive months commencing January 1 and terminating thereafter at
midnight, December 31.
2.8 Excess Gas. "Excess Gas" shall mean that quantity of Refuse Gas
which is flared or not otherwise utilized by LESSEE's Project, that is,
Refuse Gas which is not (a) sold by LESSEE, (b) consumed in the production
of Refuse Gas and/or Constituent Products, or (c) used, consumed, or lost
in LESSEE's recovery and processing system as contemplated by Section 6.4
(Use of Gas/Products).
2.9 Cost Index. "Cost Index" shall mean the Employment Cost Index
for Total Compensation - Electric, Gas and Sanitary Services, Private
Industry Workers, Table 5, as published by the US Department of Labor,
Bureau of Labor Statistics, in its Employment Cost Index Quarterly News
Release. For purposes of the adjustments, the most current index number
available (whether preliminary or final) at the time of the adjustment will
be used. If this index ceases to be available as presently constituted,
LESSOR and LESSEE agree to substitute a suitable and reasonably comparable
index. The calculation of the adjustments shall be accomplished as
follows:
latest quarterly Cost Index
indexed value x ------------------------------------------
December 1993 Cost Index
2.10 Routine Flare Operation and Maintenance. "Routine Flare
Operation and Maintenance" shall mean routine activities performed by
▇▇▇▇▇▇'s technicians and operators to operate and maintain the Flare
Facility, to allow the equipment to perform at rated capacity, and to allow
equipment to meet or exceed designed service life. Routine Flare Operating
and Maintenance activities include, but are not limited to, those listed in
Exhibit "IX".
2.11 Flare Facility. "Flare Facility" shall mean ▇▇▇▇▇▇'s flare and
all equipment used in connection with the flare as described in Exhibit
"VI".
2.12 Director. Director means the Director of Lessor's Integrated
Waste Management Department or the Director's designee.
2.13 Refuse Gas Collection System. Refuse Gas Collection System will
consist of all vertical extraction ▇▇▇▇▇, horizontal collectors, laterals,
headers and all associated devices required to extract Refuse Gas from the
Landfill and convey said Refuse Gas to the Plant Site.
2.14 Plant Site. The Plant site shall mean the site currently in use
by LESSEE in connection with the Project and such adjoining areas as
required for the New Project and Flare Facility. The Plant Site is not
expected to exceed two and one half (2 1/2) acres.
3. Term.
3.1 Term. This Lease shall become effective upon the date first
above written and shall continue for a primary period ending on January 1,
2005, and thereafter for succeeding periods of one (1) year each,
terminable upon written notice by either party to the other not less than
ninety (90) days before the end of the primary period or before the end of
any succeeding yearly period.
3.2 Term Extension. Southern California Edison is currently
soliciting bids pursuant to Final Standard Offer 4 as contemplated by
Section 6.2. In the event that ▇▇▇▇▇▇ is successful in negotiating and
entering into a contract with Southern California Edison pursuant to said
Final Standard Offer 4 or in obtaining a suitable alternative purchaser,
the Director shall extend the term of this Agreement to coincide with the
term of the purchase agreement. In no event shall the extended term exceed
the term of such contract between Southern California Edison or other
purchaser and LESSEE.
4. Revenues
4.1 Royalty Payments. LESSEE hereby agrees to pay LESSOR a royalty
equal to twelve and one-half percent (12 1/2%) of the (i) gross proceeds
(including the fair market value of all goods, products, and/or services
obtained by LESSEE in lieu of sales revenues) and (ii) entitlement (under
Title 10 Code of Federal Regulation Section 211.67 as may be amended or
superseded) received solely from the sale of all processed Refuse Gas
and/or Constituent Products produced by the Landfill or energy derived
therefrom (including, by way of illustration and not limitation, electrical
generation), less property taxes, less casinghead gas or natural gas
purchases, and less tax obligations, if any, described in Sections 19.1 or
19.2 below. The royalty shall be paid to LESSOR on or before the last day
of each month based on the previous month's sales.
4.2 Charge for Late Payment. LESSEE hereby acknowledges that the
late payment of rent or royalties will cause LESSOR to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include but are not limited to costs
such as administrative processing of delinquent notices and increased
accounting costs. Accordingly, if any payment of royalty as specified in
Section 4.1, is not received by LESSOR or postmarked within ten (10) days
after the due date, a late charge of one (1%) of the payment due and unpaid
plus twenty-five dollars ($25) shall be added for the payment, and the
total sum shall become immediately due and payable to LESSOR. An
additional charge of one percent (1%) of said payment, excluding late
charges, shall be added to each additional month that said payment remains
unpaid. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ hereby agree that such late charges represent a
fair and reasonable estimate of the costs that ▇▇▇▇▇▇ will incur by reason
of ▇▇▇▇▇▇'s late payment. Acceptance of such late charges (and/or any
portion of the overdue payment) by LESSOR shall in no event constitute a
waiver of LESSEE's default with respect to such overdue payment, nor
prevent ▇▇▇▇▇▇ from exercising any of the other rights and remedies granted
hereunder.
4.3 Records and Financial Statements.
(a) Records.
LESSEE shall, at all times during the term hereof, keep or cause
to be kept true and complete books, records, and accounts, together with
applicable supporting documentation, of all financial sales transactions in
connection with the Project and ▇▇▇▇▇▇'s operations hereunder. ▇▇▇▇▇▇
shall have the right through an independent certified public accounting
firm or otherwise through duly authorized and similarly qualified
agents/representatives, to examine and audit said books, records, and
accounts, upon thirty (30) days advance written notice to ▇▇▇▇▇▇, during
normal business hours at LESSEE's place of business. Such inspections shall
relate to the operations of LESSEE during any Accounting year and shall be
conducted within a sixty (60) month period following the end of said
Accounting Year.
(b) Discrepancies.
Full cost of any audit conducted under Section 4.3(a) shall be
borne by LESSEE if the audit reveals either (i) a discrepancy in the amount
of royalty payments due LESSOR of greater than two percent (2%), or (ii)
LESSEE has failed to maintain true and complete books, records, accounts
and/or supportive source documents as required by Section 4.3(a) hereof.
Otherwise, LESSOR shall bear the cost of said audit.
(c) Financial Statements.
Within ninety (90) days after the end of each Accounting Year,
LESSEE shall, at LESSEE's expense, submit to LESSOR a statement, certified
as to accuracy by a Certified Public Accountant or a similarly qualified
corporate accountant/auditor employed by LESSEE or an affiliate, wherein
the total gross proceeds and entitlements, and amounts permitted to be
offset therefrom, for such Accounting Year are set forth and categorized
according to the Royalty classification set forth in the above Section 4.1.
Moreover, LESSEE shall make available to LESSOR, upon request, necessary
base data to assist ▇▇▇▇▇▇ in complying with requirements of the State of
California or the United States of America or any governing body for
information relating to LESSEE's operations under the Lease.
4.4 Used/Consumed/Lost Gas Products. Nothing contained herein shall
be deemed to obligate LESSEE to account to LESSOR for, or pay a royalty on,
any Refuse Gas and/or Constituent Products which are actually and
reasonably used, consumed or lost in LESSEE's operations hereunder;
provided, however, should LESSEE so alter its recovery and processing
system to cause a significant increase in usage, LESSEE, upon ▇▇▇▇▇▇'s
written request, shall prepare and furnish LESSOR with an accounting of
such usage to verify its reasonableness.
4.5 Use of Excess Gas. LESSOR shall have the right to take or
otherwise use Excess Gas for energy recovery purposes with the approval of
LESSEE. Such approval shall not be unreasonably withheld. Excess Gas
shall be recovered in such a manner so as not to negatively impact LESSEE's
energy recovery operations. In the event the recovery of such Excess Gas
is required to comply with any applicable public laws, including federal,
state, and local statutes and regulations and any order of a regulatory
agency or authority, LESSOR and LESSEE agree to work together to develop
Refuse Gas Collection System additions, operational methods, and techniques
in order for LESSOR to meet applicable public law. In the event LESSOR and
▇▇▇▇▇▇ cannot agree on such remediation approach, ▇▇▇▇▇▇ maintains its
right to proceed with such action.
5. Testing and Evaluation Program.
5.1 Testing and Evaluation. LESSEE shall conduct such tests as it
deems appropriate in order to determine whether Refuse Gas and/or
Constituent Products can economically be recovered from the Landfill in
Commercial Quantities. LESSEE, at its sole expense, will commence testing
and evaluation of the Landfill for Refuse Gas and/or Constituent Products
and complete a technical and economic feasibility study in accordance with
the New Project Schedule. A copy of said feasibility study will be
provided LESSOR upon completion, with materials deemed proprietary by
LESSEE deleted, or at ▇▇▇▇▇▇'s option, with such materials included subject
to the prior execution by ▇▇▇▇▇▇ of a suitable confidentiality agreement.
5.2 Reversion. In the event that ▇▇▇▇▇▇ has not entered into a
binding agreement with a suitable purchaser for additional Refuse Gas
and/or Constituent Products on terms and conditions satisfactory to LESSEE
by January 31, 1995, LESSOR shall have the right to terminate LESSEE's
right to collect and process Refuse Gas from the Alpha Canyon portion of
the Landfill by deleting the description of Alpha Canyon from Exhibit "I"
upon thirty (30) days advance written notice given by the Director. It is
expressly understood that if the right of LESSEE to collect gas from Alpha
Canyon portion of the Landfill is terminated, LESSEE shall have no further
operating or maintenance obligations for the Refuse Gas Collection System
in the Alpha Canyon portion of the Landfill. In the event of ▇▇▇▇▇▇'s
termination of ▇▇▇▇▇▇'s right to collect and process Refuse Gas from the
Alpha Canyon portion, all other terms and conditions of the Lease shall
remain in full force and effect.
5.3 Commercial Recovery. Should LESSEE determine in its sole
judgment, following completion of its testing and evaluation program, that
the results of said testing and evaluation program indicate the Landfill is
suitable for the economic recovery and processing of Refuse Gas
and/or Constituent Products in Commercial Quantities as the New Project,
LESSEE shall provide LESSOR with written notice of such judgment in
accordance with the "Go/No Go" decision as specified in the New Project
Schedule, and this Lease shall continue in effect.
6. Operations.
6.1 Security for Construction of Facilities. Upon notice of an
election under Section 5.3 hereof to proceed, LESSEE shall furnish LESSOR
(i) a Performance Bond or equivalent Letter of Credit in the amount of one
hundred thousand dollars ($100,000) for the faithful performance of the
construction of New Project plant and related Refuse Gas Collection System
provided herein, and (ii) a simultaneously issued Labor and Material
Payment Bond or equivalent Letter of Credit, in the amount of fifty percent
(50%) of said Performance Bond, with respect to said construction. Such
bonds or letters of credit shall be forfeited in form and shall terminate
or shall be drawn upon nine (9) months subsequent to the later of June 1,
1997, or the completion of said construction.
Within sixty (60) days after receipt of the permit to construct the Flare
Facility, LESSEE shall furnish LESSOR (i) a Performance Bond or equivalent
Letter of Credit in the amount of eight hundred ninety five thousand and
one hundred dollars ($895,100) for the faithful performance of the
construction of the Flare Facility, and (ii) a simultaneously issued Labor
and Material Payment Bond or equivalent Letter of Credit, in the amount of
fifty percent (50%) of said Performance Bond, with respect to said
construction. Such bonds or letters of credit shall be forfeited in form
and shall terminate or shall be drawn upon nine (9) months subsequent to
the later of January 31, 1995, or the completion of said construction.
6.2 Construction of Facilities. In order to maximize gross proceeds
and ▇▇▇▇▇▇'s resulting royalty revenues and ▇▇▇▇▇▇'s other associated
benefits under this Lease, LESSEE is interested in pursuing opportunities
to increase the capacity of its energy recovery activities at the Landfill
through the New Project and has submitted a bid to Southern California
Edison on November 9, 1993. Subject to LESSEE's confirmation that the
Landfill can support sufficient additional energy recovery capacity over a
term commercially attractive to LESSEE, to the giving of notice pursuant to
Section 5.3 above, to the attainment of a suitable purchaser for additional
Refuse Gas and/or Constituent Products on terms and conditions satisfactory
to LESSEE, and to LESSEE's entering into a binding agreement with such
purchaser for the purchase of such additional Refuse Gas and/or Constituent
Products, (a) LESSOR and LESSEE shall extend the lease as provided in
Section 3 (Term) above; and (b) LESSEE shall, at its sole expense, commence
the engineering, design, procurement of requisite governmental
authorization, and construction of necessary additional facilities for
collecting and processing increased quantities of Refuse Gas and/or
Constituent Products in accordance with the project schedule set forth in
the binding agreement with such purchaser for the purchase of additional
Refuse Gas and/or Constituent Products. After completion of the
construction and required break-in of these additional facilities, LESSEE
will collect, process, and sell the additional Refuse Gas and/or
Constituent Products obtained from the Landfill in accordance with the
terms of the Lease.
6.3 Status Reports and Plant Completion. LESSEE will provide to
LESSOR written monthly status reports on ▇▇▇▇▇▇'s progress with respect to
the New Project Schedule and Flare Facility project schedule. Subject to
the provisions of Section 11 and Section 13.1 hereof, if ▇▇▇▇▇▇ fails to
complete said work in accordance with the New Project Schedule or Flare
Facility project schedule within such time, and if LESSEE has not cured or
substantially cured such failure within the time period specified in
Section 13.1, LESSOR may, by written notice to LESSEE, terminate LESSEE's
right to proceed with the work or such part of the work as to which there
has been delay. In such event, ▇▇▇▇▇▇ may take over the work and pursue
the same to completion, by contract or otherwise, and in order to
effectuate said completion, LESSEE shall, insofar as its right to proceed
is terminated, promptly surrender to LESSOR all completed work and work-in-
progress, and all non-proprietary materials, records, and notes procured
and/or produced pursuant to the Lease.
6.4 Use of Gas/Products. Subject to Section 4.4 hereof, LESSEE shall
have free use of that portion of the Refuse Gas and/or Constituent Products
produced by the Landfill which is necessary to conduct its operations and
to market Refuse Gas under this Lease. Nevertheless, LESSEE shall use its
best efforts to maximize the efficiency of its operations and marketing
activities to lessen such use to the extent reasonably practicable.
If LESSOR at any time shall have reason to question the accuracy of any
gauge or device used in measuring or computing the Refuse Gas (i) used for
operating LESSEE's facilities, and/or (ii) sold hereunder, LESSOR shall so
notify LESSEE in writing, and, thereafter, such gauge or device shall be
tested in the presence of both parties. Should such tests reveal an
inaccuracy of two percent (2%) or greater, the quantity shall be
recalculated and corrected for the period beginning thirty (30) days
immediately prior to the date of said notice (or beginning on the date such
inaccuracy commenced, if ascertainable). If the gauge or device is found
to be accurate within two percent (2%), then LESSOR shall bear the expense
of tests made at its request; otherwise, LESSEE will be responsible for the
costs of such tests.
6.5 Prudent Operations. Subject to the provisions of this Lease,
LESSEE shall test for, collect, treat, process and market the Refuse Gas
and/or Constituent Products produced by the Landfill as a reasonably
prudent operator. In discharging this obligation, LESSEE shall be
responsible, in its sole discretion, for determining all operational plans
and details (excepting the placement of ▇▇▇▇▇ and collection facilities on
the Landfill) directly affecting production and processing to ensure a
workable system having the greatest recovery potential; provided, however,
that LESSEE shall conduct its testing program, construction activities and
operations in such a manner so as not to interfere with LESSOR's use and/or
maintenance of the Landfill, unless LESSOR otherwise consents.
▇▇▇▇▇▇ shall inform ▇▇▇▇▇▇ of all significant planning, design, expansion,
and construction meetings concerning any Refuse Gas collection activities.
▇▇▇▇▇▇ shall invite ▇▇▇▇▇▇ to attend and provide comments concerning all
Refuse Gas collection activities at the Landfill.
As to placement of ▇▇▇▇▇ and collection facilities including the Refuse Gas
Collection System, it is agreed that prior to testing and before
installation of any equipment or operational facilities in or upon the
Landfill, LESSEE shall furnish LESSOR with the Refuse Gas collection System
grid-well layout and development plans attendant thereto. LESSOR shall
have fifteen (15) working days from such submittal in which to review such
plans and advise LESSEE of ▇▇▇▇▇▇'s approval (which shall not be
unreasonably withheld) or any specific objections, silence being deemed an
approval. The parties shall endeavor in good faith to resolve said
objection(s) within ten (10) working days thereafter, but should the
parties be unable to resolve such objection(s), ▇▇▇▇▇▇ and LESSEE shall
mutually designate, within ten (10) working days thereafter, a
disinterested third person arbitrator who shall, within thirty (30) days
thereafter, formulate a resolution which will be binding upon LESSOR and
LESSEE.
It is further understood that LESSEE shall use its best efforts to procure
the highest sales revenues reasonably obtainable for the Refuse Gas and/or
Constituent Products produced and marketed from the Landfill. Although the
implementation of a gas enhancement or stimulation program is unanticipated
by the parties with respect to Refuse Gas production, it is agreed that any
such enhancement type program will be undertaken only with ▇▇▇▇▇▇'s prior
written consent, such consent shall not be unreasonably withheld. It is
understood that the wet-weather area, also known by the parties as the
third level portion of the Landfill, has not been brought to final grade,
and the parties hereto agree to cooperate in minimizing the impact of such
condition on the Project.
6.6 Return of Landfill Liquids. LESSEE shall, in connection with its
activities on the Landfill hereunder, have the right in its sole
discretion, without cost to LESSEE, to return to the Landfill any and all
matter either solid or liquid (including condensate) removed from the
Refuse Gas and/or Constituent Products collected from the Landfill provided
such return is lawful under applicable federal, state, and local
governmental authority.
Upon installation by LESSOR of a leachate treatment facility, condensate
disposal will be provided by ▇▇▇▇▇▇'s leachate treatment facility, at no
cost to LESSEE. If ▇▇▇▇▇▇ is not able or willing to dispose of Refuse Gas
condensate after December 31, 1995, LESSEE shall reduce the royalty payment
described in Section 4 by ▇▇▇▇▇▇'s direct cost of the Refuse Gas condensate
disposal.
6.7 Installation of Refuse Gas Collection System. ▇▇▇▇▇▇ and ▇▇▇▇▇▇
agree to work together to develop operational methods and techniques in
order to optimize the quality and quantity of gas recovered from LESSOR's
horizontal gas collectors in the Landfill. To the extent reasonably
practicable LESSEE agrees to utilize ▇▇▇▇▇▇'s horizontal gas extraction
system, vertical gas ▇▇▇▇▇, and header to produce and recover Refuse Gas
therefrom and transport Refuse Gas therefrom and transport Refuse Gas to
LESSEE's Olinda electrical generating facilities.
All work required for capital additions (new ▇▇▇▇▇, new collectors, new
laterals, new headers, and all associated devices) to the Refuse Gas
Collection System and major maintenance (as
described in Exhibit "X") to the Refuse Gas Collection System prior to the
time the New Project, contemplated by Section 6.2 (Construction of
Facilities), is placed in service, shall be performed by ▇▇▇▇▇▇ and paid
for by ▇▇▇▇▇▇ under the terms and conditions of Exhibit "VT". LESSEE shall
provide LESSOR with a written cost estimate of such work. ▇▇▇▇▇▇ shall not
proceed with this work prior to the approval of ▇▇▇▇▇▇. If ▇▇▇▇▇▇ and
▇▇▇▇▇▇ cannot agree on such costs, LESSOR maintains its right to obtain
such work from other sources at LESSOR's option.
After the New Project has been placed into service, LESSEE will pay the
first $40,000 per year, adjusted annually in accordance with Paragraph 2.9
(Cost Index), of Refuse Gas Collection System capital additions and major
maintenance. All additional work required for capital additions (new
▇▇▇▇▇, new collectors, new laterals, new headers, and all associated
devices) to the Refuse Gas Collection System and major maintenance (as
described in Exhibit "X") performed on the Refuse Gas Collection System
after the time the New Project, contemplated by Section 6.2 (Construction
of Facilities), is placed in service, shall be performed by LESSEE and paid
for by LESSOR under the terms and conditions of Exhibit "V". LESSEE shall
provide LESSOR with a written cost estimate of such work. ▇▇▇▇▇▇ shall not
proceed with this work prior to the approval of ▇▇▇▇▇▇. If ▇▇▇▇▇▇ and
▇▇▇▇▇▇ cannot agree on such costs, LESSOR maintains its right to obtain
such work from other sources at LESSOR's option.
If LESSEE is not successful in obtaining a Final Standard Offer 4 contract
with Southern California Edison or in obtaining an acceptable alternative
energy purchaser, LESSEE will continue to perform capital additions in
accordance with Exhibits "V" and "VIII" and major maintenance as defined
herein when requested by ▇▇▇▇▇▇.
6.8 Flare Facility Installation and Related Services. ▇▇▇▇▇▇ has
proposed, and ▇▇▇▇▇▇ has agreed to certain work and services to be
performed by LESSEE with respect to a Flare Facility to be installed at the
Landfill adjacent to LESSEE's existing gas processing facilities, that will
allow Refuse Gas and condensate to be incinerated reliably over the long-
term (the "Flare Work") as contemplated in Section 6.7 (Installation of
Refuse Gas Collection System) of the Lease. Notwithstanding any other
provisions of the Lease to the contrary, (i) LESSEE has proposed and LESSOR
has agreed to the particular Flare Facility described in Exhibit "VI"
attached hereto; (ii) LESSEE shall provide such Flare Facility for a lump
sum price of one million three hundred thousand dollars ($1,300,000) of
which one million ninety two thousand six hundred dollars ($1,092,600)
shall be for the Flare Facility described herein and of which two hundred
seven thousand four hundred dollars ($207,400) shall be for owner
enhancements beyond the scope of the Flare Facility design, such
enhancements to be at the sole discretion of LESSOR and authorized in
writing by ▇▇▇▇▇▇; and (iii) LESSOR shall pay for the Flare Facility in
cash payments to LESSEE payable upon completion of the project schedule
deliverables indicated in Exhibit "VII".
Following completion of the health risk assessment and Flare Facility
design and prior to submitting an application for a permit to construct to
the South Coast Air Quality Management District (SCAQMD), LESSEE shall
submit the health risk assessment and Flare Facility design to the Director
of the County Environmental Management Agency (EMA) for review and
approval to ensure that the Flare Facility is designed so its operation
would cause no significant adverse air quality impact.
6.9 The Flare Facility Operations and Maintenance. The Flare
Facility Work will be treated for all purposes under the Lease as, and
shall become, part of the facilities operated by LESSEE, and owned by
LESSOR and shall be maintained as described in Exhibit "IX".
Notwithstanding any other provisions of the Lease to the contrary, LESSEE
will be responsible for providing Routine Flare Facility Operation and
Maintenance as defined in Exhibit "IX" at its expense, and ▇▇▇▇▇▇ will
reimburse LESSEE for the purchase of electrical power, propane, and
condensate disposal for the Flare Facility. ▇▇▇▇▇▇ will perform non-
routine operation and maintenance activities on the Flare Facility on
behalf of LESSOR. LESSEE shall provide LESSOR, in advance, cost estimates
pertaining to any non-routine operating and maintenance services for which
LESSEE will be reimbursed by LESSOR according to the fee schedule described
in Exhibit "VIII" attached hereto. If the two parties cannot agree on such
costs, LESSOR maintains its right to obtain such work from other sources at
LESSOR's option. If electrical power is produced for sale by the New
Project, LESSEE shall provide electrical power to operate the Flare
Facility when feasible and at no cost to LESSOR, however, LESSOR shall pay
all charges by Southern California Edison related to Southern California
Edison's supply of electrical power and/or the services to provide
electrical power for the Flare Facility.
7. Title To Facilities, Surrender of Facilities, and Lease. LESSOR
shall have title to existing components of the Refuse Gas Collection System
for which ▇▇▇▇▇▇ has paid the cost of installation. ▇▇▇▇▇▇ shall have
title to all future components of the Refuse Gas Collection System and to
the Flare Facility upon acceptance of said Flare Facility as complete.
LESSEE shall have title to all other components of the Refuse Gas
Collection System existing at the time of execution of this Amended and
Restated Gas Lease Agreement. LESSEE shall have title to all future
components of the Project for which LESSEE pays the cost of installation
and that are not part of the Refuse Gas Collection System subject to terms
of this Amended and Restated Gas Lease Agreement. At any time during the
term hereof that LESSEE determines that the Project and/or New Project, or
the continuation thereof, is not technically, economically, or practically
feasible, LESSEE, at its option, may surrender and terminate this Lease
subject to the following obligations: (i) LESSEE shall have the
responsibility under Section 9.1 below, at the request of LESSOR, to remove
above ground property, fixtures, and improvements owned by LESSEE and
placed on the Landfill; (ii) LESSEE shall provide LESSOR at time of
surrender with a written explanation of the basis for ▇▇▇▇▇▇'s decision to
terminate the Lease; (iii) LESSEE shall provide LESSOR with summaries of
any test results and the results of operation; and (iv) LESSEE shall
transfer ownership of the Refuse Gas Collection System, owned by ▇▇▇▇▇▇,
constructed hereunder, to LESSOR without charge to LESSOR.
8. Property Rights.
8.1 Land Use. LESSEE shall be authorized to use the Landfill,
including the Alpha Canyon portion, and any adjacent or contiguous land
owned or controlled by LESSOR without cost except as otherwise provided
herein, to the extent reasonably necessary or convenient for
LESSEE's facilities and operations hereunder, including the construction
and maintenance of all necessary ▇▇▇▇▇, pipelines, and utility lines, and
the free right of ingress and egress at all times to and from said
property; however, the rights herein granted should be exercised by ▇▇▇▇▇▇
in a way which shall not unreasonably interfere or be inconsistent with
LESSOR's ongoing Landfill activities.
8.2 Plant Site. LESSOR shall make available to LESSEE if requested
without cost, immediately adjacent to but not upon the surface of the
Landfill, a mutually acceptable site sufficient in size to accommodate the
construction and operation by LESSEE of the gas processing plant(s) and
related facilities for the Project, and LESSEE shall have the free right of
ingress and egress at all times to and from said Plant Site.
8.3 Underground ▇▇▇▇▇ and Pipelines. All gas collection ▇▇▇▇▇ (below
the wellhead) and gas gathering pipelines shall be placed below the surface
of the Landfill. LESSOR shall use its best efforts to avoid damaging
wellheads necessarily protruding during continuation of landfill
activities. Upon completion of said landfill activities, LESSEE shall
place the wellheads below the surface unless LESSOR otherwise consents.
8.4 Oil and Gas Rights. This Lease shall not be deemed to grant to
LESSEE any rights to or interests in any oil or natural gas located under
the Landfill which is not produced by the Landfill.
8.5 Easements. ▇▇▇▇▇▇ agrees to grant such rights of way and
easements as may be necessary for the purchaser of the Refuse Gas and/or
Constituent Products to accept delivery thereof at LESSEE's gas processing
plant(s).
8.6 Cooperation in Obtaining Authorization. Upon reasonable request
by ▇▇▇▇▇▇, LESSOR shall make documents available, attend and otherwise
assist LESSEE in proceedings, hearings, or other procedures necessitated by
any required environmental impact reports, governmental permits,
authorizations and similar type requirements, related to the Project and
the construction and operation of LESSEE's ▇▇▇▇▇, Refuse Gas Collection
System, and gas processing facilities. Upon reasonable request of ▇▇▇▇▇▇,
LESSEE shall assist ▇▇▇▇▇▇ in briefing the officials of a governmental
agency or body, or other interested party, with respect to the status of
the Project.
8.7 Landscaping. LESSEE shall, upon written request from LESSOR, be
obligated to install and maintain such landscaping as may be required for
adequate screening of the plant site and appurtenant equipment which are
utilized by LESSEE in its operations hereunder. LESSOR shall be
responsible for any landscaping which is located on LESSOR's property
external to said plant site.
8.8 LESSOR's Activities. LESSOR agrees to conduct its Landfill
activities, and the Landfill activities of its agents, representatives,
tenants, contractors, or assignees, so as not to unreasonably interfere
with LESSEE's programs, construction activities, and/or operations
hereunder, unless LESSEE otherwise consents, subject to a Letter of Intent
of February 12, 1981 (a copy of which is attached hereto as Exhibit "III"
and by reference made a part hereof).
It is understood that LESSEE will exercise its best efforts to operate the
Refuse Gas Collection System and Project so as to permit effective
utilization of the system for both environmental and energy recovery
purposes to the greatest extent possible. In the event that both goals
cannot be met simultaneously, the collection of Refuse Gas for the purpose
of environmental compliance will not be considered interference with
▇▇▇▇▇▇'s right to collect Refuse Gas for energy recovery purposes under the
terms of this Lease and any action by LESSOR necessary to comply with any
environmental statues, laws, ordinances, regulations, decisions, or orders
by any regulatory authority or entity will not be deemed a breach of this
Lease.
9. Removal and Restoration.
9.1 Removal of Facilities. LESSEE shall notify LESSOR, upon expiration
or termination of this Lease, of ▇▇▇▇▇▇'s intention to either remove or
abandon the above-ground property, fixtures, and improvements owned by
LESSEE which ▇▇▇▇▇▇ has placed on the Landfill. LESSEE shall within six
(6) months after said expiration or termination remove such above- ground
property, if LESSOR requests that such above-ground property be removed.
Upon said expiration or termination, any and all ▇▇▇▇▇, together with
attendant collection facilities, constituting LESSEE's below surface
recovery system will, at LESSOR's election, either be transferred to LESSOR
without further liability to LESSEE, or will be modified and/or abandoned
at ▇▇▇▇▇▇'s cost in a manner necessary to render such recovery system safe
under the then applicable regulations.
9.2 Surface Restoration. LESSEE shall within six (6) months after
the expiration or termination of this Lease restore the surface of the
Landfill affected by LESSEE's operations to render such areas generally
compatible with the unimproved and unlandscaped portions of the Landfill
surface not so affected.
10. Compliance with Law. LESSEE shall, at its sole expense, obtain,
maintain, and comply with all necessary governmental authorizations,
permits and licenses required to conduct its operations under this Lease.
In addition, LESSEE shall comply with all applicable federal, state and
local laws, rules, regulations, and orders in its operations hereunder
including compliance with all applicable safety and health requirements as
to LESSEE's employees.
11. Laws and Force Majeure.
11.1 Laws and Force Majeure. The provisions of this Lease shall be
subject to all valid and applicable federal, state, county, municipal, and
other governmental laws, executive orders, ordinances, rules, regulations,
and acts, and this Lease shall not be terminated, in whole or in part, nor
shall LESSEE be held liable in damages, for failure to comply herewith, if
compliance is prevented by, or the failure is the result of, any such law,
order, ordinance, rule, regulation, or act, or due to Force Majeure.
11.2 Effect on Operations. If LESSEE's operations are at any time
prevented or affected by any of the causes referred to in Section 11.1, the
performance of its operations to the extent so prevented or affected shall
be excused without liability hereunder, and this Lease shall continue in
full force and effect until LESSEE is permitted to resume its operations
and thereafter for the balance of the primary term and for as long
thereafter as Refuse Gas and/or Constituent Products are produced to be
sold from the Landfill.
12. Warranty of Title.
12.1 General. ▇▇▇▇▇▇ hereby warrants and agrees to defend the title
to the Landfill and the Refuse Gas and/or Constituent Products produced by
the Landfill.
12.2 LESSOR's Interest. It is agreed that if ▇▇▇▇▇▇ owns an interest
in the Refuse Gas and/or Constituent Products produced by the Landfill
which is less than the entire and undivided ownership or fee simple estate
therein, the royalties due hereunder to LESSOR shall be reduced to the
proportion thereof which the interest actually owned by LESSOR bears to the
whole and undivided ownership or fee therein.
12.3 Protection of ▇▇▇▇▇▇'s Interest. If and whenever it shall be
necessary, in order to protect ▇▇▇▇▇▇'s interest hereunder, LESSEE may at
its option, upon sixty (60) days prior to written notice, pay and discharge
at any time any mortgage, taxes, or other liens now or hereafter attaching
to the Landfill or any part thereof in the event of default of payment by
▇▇▇▇▇▇. In such event LESSEE shall be subrogated to all of the enforcement
rights of the owner or holder thereof, and LESSEE shall have the right to
apply royalties accruing hereunder toward satisfying the same.
13. Default.
13.1 Default by ▇▇▇▇▇▇. In the event that ▇▇▇▇▇▇ concludes ▇▇▇▇▇▇'s
operations are at any time not being conducted in compliance with the
provisions of this Lease, LESSOR shall notify LESSEE in writing of the
facts relied upon as constituting a breach hereof, and LESSEE, if in
default, shall have ninety (90) days after receipt of such notice in which
to substantially complete compliance with such provisions. LESSOR shall
have the right to terminate this Lease upon written notice to LESSEE if
LESSEE fails to complete or substantially complete such compliance efforts
within the ninety (90) day period, unless such failure is excused by the
provisions of Section 11 hereof.
13.2 Default by ▇▇▇▇▇▇. In the event that ▇▇▇▇▇▇ concludes LESSOR at
any time is failing to perform or observe any of the provisions of this
Lease required to be performed or observed by ▇▇▇▇▇▇, LESSEE shall notify
LESSOR in writing of the facts relied upon as constituting a breach hereof,
and LESSOR, if in default, shall have ninety (90) days after receipt of
such notice in which to complete or substantially complete compliance with
such provisions. LESSEE shall have the right to terminate this Lease upon
written notice to LESSOR if ▇▇▇▇▇▇
fails to complete or substantially complete such compliance efforts within
the ninety (90) day period, unless such failure is excused by the
provisions of Section 11 hereof.
14. Indemnification. ▇▇▇▇▇▇ shall defend, indemnify, and hold LESSEE,
its officers, agents, and employees harmless from and against any and all
claims, demands, actions, proceedings, liability, or losses of whatsoever
nature (including reasonable attorney's fees) for injury or death to
person(s) or for damage or loss to property arising out of or caused by
▇▇▇▇▇▇'s operations or activities in connection with the Landfill or any
contiguous or non- adjacent property under ▇▇▇▇▇▇'s control unless such
injury, death, damage or loss is caused by the willful misconduct or
negligence of LESSEE. ▇▇▇▇▇▇ shall defend, indemnify, and hold LESSOR, its
officers, agents, and employees, harmless from and against any and all
claims, demands, actions, proceedings, liability, or losses of whatsoever
nature (including reasonable attorney's fees) for injury or death to
person(s) or for damage, or loss to property arising out of or caused by
▇▇▇▇▇▇'s operations or activities in connection with the Landfill or any
contiguous or non-adjacent property under ▇▇▇▇▇▇'s control unless such
injury, death, damage, or loss is caused by the willful misconduct or
negligence of LESSOR.
15. Insurance.
(a) Worker's Compensation Insurance.
Before entering upon the performance of this Lease, LESSEE shall
furnish LESSOR satisfactory evidence that ▇▇▇▇▇▇ has secured, for the term
of the Lease, full worker's compensation insurance from a responsible
insurance company authorized to do business in the State of California and
approved by ▇▇▇▇▇▇'s Risk Management Officer. Such insurance shall be
maintained in full force and effect at ▇▇▇▇▇▇'s own expense during the life
of the Lease.
(b) Liability Insurance.
LESSEE shall maintain, in full force during the term of this
Lease, comprehensive general liability insurance, comprehensive automobile
liability insurance (including coverage for owned, non-owned, and hired
automobile hazards) and contractual liability insurance. Liability
insurance required by this Section shall contain at least a $1,000,000
combined single limit. LESSOR shall be added as an additional insured on
all liability insurance policies required by this Section, as respects work
done by LESSEE under the terms of this Lease. All liability insurance
policies required by this Section shall be primary insurance (for claims
arising out of LESSEE's operations), and any insurance maintained by the
LESSOR shall be excess insurance. Moreover, LESSEE shall file with ▇▇▇▇▇▇,
prior to commencement of work required by this Lease, a certificate of
insurance stating that the liability coverages required by this Section are
in effect and containing the following clauses:
(i) "It is agreed that this policy shall not be canceled,
non-renewed, or reduced in scope of coverage until after 30 days written
notice has been given the Risk Management Officer, County of Orange."
(ii) "County of Orange is an additional insured under
insurance policies evidenced by this certificate, as respects work done by
the named insured for the County of Orange."
(iii) "Insurance evidenced by this certificate is primary
insurance for claims arising out of the named insured's operations, and any
insurance maintained by the County of Orange shall only provide coverage in
excess of the insurance evidenced by this certificate."
Insurance coverage in the minimum amounts set forth herein shall not
be construed to relieve LESSEE for liability in excess of such coverage.
16. ▇▇▇▇▇▇'s Interests. LESSEE is not a public utility and does not
intend to dedicate to public use the Refuse Gas and/or Constituent Products
produced by the Landfill or any of its facilities. Nothing contained in
this Lease shall be deemed a dedication by ▇▇▇▇▇▇ to the public of any
Refuse Gas and/or Constituent Products or of any of LESSEE's facilities.
If any regulatory body shall at any time assert jurisdiction over LESSEE as
a public utility by reason of this Lease, LESSEE shall have the right at
such time, on at least thirty (30) days written notice to ▇▇▇▇▇▇, to be
relieved of all obligations hereunder not theretofore accrued (except as
provided in Section 9 hereof), and this Lease shall thereupon terminate.
17. Assignment.
17.1 Assignment. No performance of this Lease or any portion thereof
may be assigned or subcontracted (other than subcontracting for
engineering, fabrication, and construction of LESSEE's gas recovery
facilities) by LESSEE without the express written consent of LESSOR, which
consent shall not be unreasonably withheld. Any attempt by LESSEE to
assign or subcontract (other than subcontracting for said engineering,
fabrication, and construction services) any performance of this Lease
without the express written consent of LESSOR, which consent shall not be
unreasonably withheld, shall be void and shall constitute a breach of this
Lease. Said subcontracting shall not relieve LESSEE of its obligations
under this Lease. Whenever LESSEE is otherwise authorized to subcontract
or assign, such subcontract or assignment shall incorporate and be subject
to the terms of this Lease. The encumbrance of any stock or interests of
LESSEE in the aggregate exceeding twenty-five percent (25%) shall be deemed
an assignment within the meaning of this Section.
17.2 Change of Ownership. No change or division in the ownership of
the Landfill or assignment of the royalties shall operate to enlarge the
obligations or diminish the rights of either LESSOR or LESSEE, and no
change, division, or assignment of such rights shall be binding
upon either LESSOR or LESSEE until thirty (30) days after LESSOR or LESSEE
has been furnished with the original or a certified copy of the recorded
instrument evidencing the same.
17.3 LESSEE Restructuring. It may be necessary or desirable for
LESSEE to assign or pledge all or some of its Lease interest under this
Lease, and/or all or some of LESSEE's other rights and obligations
hereunder including those rights involving Refuse Gas and/or Constituent
Products, to a related or unrelated third party or to a successor in
interest to ▇▇▇▇▇▇'s business and/or activities at the Landfill.
Notwithstanding any other provisions of this Lease to the contrary, ▇▇▇▇▇▇
agrees that such assignments or pledge shall be permitted under the terms
of this Lease, and that upon ▇▇▇▇▇▇'s request, ▇▇▇▇▇▇ will not unreasonably
withhold its consent in accordance with this Section 17.3 to the particular
terms and conditions of such assignment or pledge through the written
consent of LESSOR; provided, however, that no such assignment or pledge
shall relieve LESSEE of its primary responsibility to LESSOR for
performance of its obligations under this Lease, without the written
consent of LESSOR.
18. Notices. Any notice to be given under the Lease shall be in
writing and shall be deemed to have been properly given and received (i)
when delivered in person to the authorized representative of the party to
whom the notice is addressed, or (ii) on the date received as indicated on
the return receipt when sent by prepaid certified or registered mail,
return receipt requested, to the party to be notified at its address, as
follows:
To LESSEE:
GSF Energy Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-1501
Attention: General Manager,
Landfill Gas Systems
Copy: Corporate Secretary
To LESSOR as to other than Royalty Payments:
County of Orange
Integrated Waste Management Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Engineering Manager
and
County of Orange
General Services Agency/Real Estate
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Floor
Post Office Box ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-4106
To LESSOR as to Royalty Payments:
County of Orange
Office of Auditor-Controller
Post Office Box 1955
Santa Ana, CA 92702
LESSOR or LESSEE may change such representative or address by written
notice of said change of representative or address given to the other.
19. Taxes.
19.1 Taxes Paid by ▇▇▇▇▇▇. LESSEE shall, during the term of the
Lease, pay all taxes that may be levied upon or assessed against the
facilities, equipment, and improvements constructed or installed by LESSEE
in, on, or adjacent to the Landfill under this Lease. It is understood and
agreed that all taxes and assessments (including but not limited to a
possessory interest tax) which become due and payable upon said facilities,
equipment, and improvements shall be the full responsibility of LESSEE, and
LESSEE shall cause said taxes and assessments to be paid promptly.
19.2 Shared Taxes. Pursuant to California Revenue and Taxation Code
Section 107.6, LESSEE has been advised that any possessory property
interest in the quantity or value of Refuse Gas and/or Constituent Products
in place or recovered and/or produced from the Landfill may be subject to
taxation. If and to the extent property taxes (as differentiated from
income, sales, or franchise type assessments) are levied on said interest,
LESSEE shall pay all of such taxes levied against LESSEE's 7/8ths share,
and LESSOR shall be responsible for paying, or be declared exempt from
paying a 1/8th share of said taxes.
20. Liquidated Damages. Time is of the essence in the performance of
this Lease. Subsequent to commencement of gas sales hereunder, in addition
to amounts payable under Section 4.0 above, it is agreed by and between
LESSOR and LESSEE hereto that in the event the operational services
thereafter are not provided within the number of calendar days as agreed
upon herein, damage will be thereby sustained by ▇▇▇▇▇▇, and that it is and
will be impracticable and extremely difficult to ascertain and determine
the actual damage which LESSOR will sustain by reason of such delay; and it
is therefore agreed that LESSEE will pay to LESSOR the sum of one hundred
dollars ($100) per day for each and every day's delay in providing the
operational services thereafter in excess of the number of days prescribed;
and ▇▇▇▇▇▇ agrees to said liquidated damages as herein provided. Neither
LESSOR nor LESSEE
shall be assessed with liquidated damages during any delay subsequent to
commencement of gas sales caused shall LESSEE be assessed with liquidated
damages for delay caused by failure of LESSOR to provide or perform those
items of work required of LESSOR in this Lease; provided, however, LESSEE
shall have no claims for any compensation for any such LESSOR delay.
Should LESSEE be delayed by reason of alterations, including Lease
amendments, ordered by ▇▇▇▇▇▇ or by any act of LESSOR, not contemplated by
the Lease, the time of completion will be extended appropriately by ▇▇▇▇▇▇,
and ▇▇▇▇▇▇ will not be assessed liquidated damages for such extension;
provided, however, LESSEE shall have no claim for any other compensation
for any such extension unless specifically set forth on a change order.
21. Disputes. Should LESSEE and ▇▇▇▇▇▇ fail to agree on an issue
involving Lease interpretation, either LESSOR or LESSEE may submit a
written explanation to the other, specifying in detail the particulars of
the Lease requirements which are not being correctly interpreted. ▇▇▇▇▇▇
and ▇▇▇▇▇▇ shall thereafter utilize their best efforts to mutually resolve
any potential claim within thirty (30) County of Orange Integrated Waste
Management Department working days after receipt of such written
explanation. Should they fail to resolve the matter, the parties may
proceed with a mutually agreed upon form of arbitration.
22. Compliance with Civil Rights Laws. ▇▇▇▇▇▇ shall comply with all
state and federal laws relating to civil rights. ▇▇▇▇▇▇ further agrees
that no person shall be excluded from employment on the grounds of race,
color, religion, sex, national origin, marital status, age, or as an
otherwise qualified physically disabled individual.
23. General Provisions.
23.1 Successors. Subject to Sections 17.1 and 17.3 hereof, the
provisions of this Lease shall inure to the benefit of and be binding upon
LESSOR or LESSEE and their respective representatives, successors, assigns,
and delegatees.
23.2 Covenants and Conditions. Each provision of this Lease
performable by LESSOR or LESSEE, respectively, shall be deemed both a
covenant and condition.
23.3 Entire Contract. All obligations of LESSEE and LESSOR under
this Lease are expressly stated herein, and no other obligations or
covenants are to be implied hereunder.
23.4 Modifications. No changes to Lease terms, conditions or
schedules for any purpose shall be made unless approved in writing by both
the LESSOR and ▇▇▇▇▇▇.
23.5 Waiver. The waiver by either LESSOR or LESSEE of any failure on
the part of the other to perform in accordance with any of the terms or
conditions of this Lease shall not be construed as a waiver of any future
or continuing failure, whether similar or dissimilar thereto.
23.6 Affiliates. In determining whether ▇▇▇▇▇▇ has complied with its
obligations hereunder, the acts of corporations or other firms,
organizations, and persons bearing the
relationship to LESSEE of parent, subsidiary, affiliate, representative, or
associate shall be deemed the acts of LESSEE.
23.7 Captions. Section numbers and Section captions are inserted for
identification purposes only and are not a part hereof.
23.8 Recording. This Lease shall not be recorded, but the parties
shall execute and acknowledge a short memorandum of this Lease for
recording purposes in a form mutually agreed by ▇▇▇▇▇▇ and ▇▇▇▇▇▇.
23.9 Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall be cumulative, wherever possible, with all other
remedies at law or in equity.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ hereto have executed this Amended and
Restated Lease Agreement on these dates opposite their respective
signatures.
COUNTY OF ORANGE
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date Dec 14 1993
Chairman, Board of Supervisors
APPROVED AS TO FORM:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, County Counsel
By /s/ [illegible] Date 11/23/93
Deputy
APPROVED AS TO AUDIT & ACCOUNTING
▇.▇. ▇▇▇▇▇, Auditor-Controller
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Date 1-11-94
Deputy
RECOMMENDED FOR APPROVAL:
General Services Agency
Real Estate
By /s/ ▇▇▇▇▇ [illegible] Date 11/23/93
Integrated Waste Management Department
By ▇▇▇▇▇▇ [illegible] Date 11/23/93
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Date Dec 14 1993
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Clerk of the Board of Supervisors
Orange County, California
GSF ENERGY INC.
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date 11 November 1993
President