1224-Maxwest Sanford LLCq• - M
FIRST AMENDMENT TO BIOSOLIDS CONVERSION AND
THERMAL ENERGY PURCHASE AGREEMENT p
C:�
THIS FIRST AMENDMENT TO BIOSOLIDS CONVERSION AND THE ENERGY
PURCHASE AGREEMENT (the "Amendment ") is made and entered into this 9 / 4 , 2009
by MAXWEST- SANFORD, LLC, a Florida limited liability company (herein "Seller "), and THE CITY
OF SANFORD, FLORIDA (herein "Buyer ").
RECITALS:
WHEREAS, the Buyer and Maxwest Environmental Systems, Inc. ( "Maxwest ") executed a
BIOSOLIDS CONVERSION AND THERMAL ENERGY PURCHASE AGREEMENT dated March 24,
2008 (the "Energy Agreement "); and
WHEREAS, Section 16.3 of the Energy Agreement authorized Maxwest to assign the Energy
Agreement to a special purpose entity controlled by Maxwest; and
WHEREAS, Maxwest assigned the Energy Agreement to the Seller, a special purpose entity
controlled by Maxwest, by virtue of an Assignment with an effective date of September 9, 2008; and
WHEREAS, Section 4,1.5 of the Energy Agreement authorized the parties to cooperate in the
joint marketing of excess drying and gasification capacity created pursuant to the Energy Agreement; and
WHEREAS, Section 4.1.5 of the Energy Agreement also specified that revenue received from
the sale of excess capacity would be split on an equal basis, after the deduction of expenses of each party;
and
WHEREAS, the parties believe that allowing the Seller to operate and maintain portions of the
Buyer's Sanford South Water Resource Center (SSWRC) will facilitate and enhance the parties' ability to
accept biosolids and other feedstocks from other entities for treatment and gasification; and
WHEREAS, the Buyer and Seller wish to define the duties and responsibilities of each party
with respect to the acceptance and processing of biosolids and other feedstocks and the sale of additional
drying and gasification capacity; and
WHEREAS, the Buyer and Seller wish to define a methodology for determining the net revenue
available for distribution to the parties pursuant to Section 4.1.5 of the Energy Agreement; and
NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties
hereunder, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are incorporated herein by reference as though fully set forth below.
2. Ratification. The parties hereby acknowledge and agree that the Energy Agreement, as amended, is
in full force and effect and hereby ratify all terms and conditions contained therein.
3. Definitions. Any capitalized term not otherwise defined herein shall have the same meaning as
defined in the Energy Agreement.
4. Effective Date. This Amendment will become effective upon the date of its execution and delivery
by each of the Parties.
5. Term. This Amendment will continue in effect until termination of the Energy Agreement.
6. Seller Operational Responsibilities.
6.1. Seller shall prepare and enter into agreements with other entities to process additional biosolids;
fats, oil and grease (herein "FOG'); or other fuel sources. Seller shall obtain Buyer's approval
of any agreement for acceptance of additional feed stock at the SSWRC as described herein prior
to entering said agreement. Any agreements entered will state the Buyer and/or Seller may refuse
to accept any material which will adversely impact plant operations, cause plant upset, or cause a
violation of any permit condition or Federal, State, or local law, rule or regulation..
6.2. The parties agree that acceptance of feed stock from other entities will require the use of excess
capacity in the Buyer's digester, belt press, and Fenton dryer (herein collectively the "Buyer's
Equipment "). The feed stock from other entities will also use excess capacity in the Seller's
gasification system (the "Facility "). The parties agree that the most efficient and cost- effective
manner of accepting and processing outside feed stock is through coordinated utilization of
excess capacity in the Buyer's Equipment and the Seller Facility. To that end, Seller shall
assume operations and maintenance responsibility for the Buyer's Equipment. Seller shall
process Buyer's Biosolids Waste, outside feed stock, and other fuel sources through the Buyer's
Equipment and Seller's Facility as required by the Energy Agreement and the various
obligations to outside entities. Buyer shall maintain 25% capacity in Digester to ensure plant
operations are not impacted.
6.3. The location of the Buyer's Equipment is graphically depicted on the diagram attached hereto as
Exhibit A. This Amendment shall govern Seller's responsibilities to operate and maintain the
Buyer's Equipment only. This Amendment does not alter the location of Delivery Points or the
various rights and obligations of the parties established in the Energy Agreement.
6.4. Seller may, in its sole discretion, employ subcontractors to support Seller in meeting its
obligations under this Amendment. All employees must pass criminal background check.
6.5. Seller shall be responsible for minor routine maintenance of the Buyer's Equipment. Provided,
however, that Seller shall not be responsible for any discrete maintenance activity, including
associated parts and supplies that Seller reasonably believes will exceed $500.00. Discreet
maintenance activity is work on a single piece of equipment occurring in a 24 hour period.
6.6. For major repairs or maintenance activities on the Buyer's Equipment not covered by the Seller
pursuant to paragraph 6.5 above, Buyer shall fund the cost of repairs. Seller shall fund all costs
associated with operations and maintenance of Sellers Gasification Equipment. Seller shall be
responsible for coordinating any major repairs and shall obtain Buyers approval in writing prior
to commencing any major repairs or maintenance activities.
6.7. Seller shall at Seller's expense modify the Buyer's Equipment to include a liquid drop station and
construct improvements to accept and handle FOG. Seller will obtain Buyer's approval of design
plans prior to any modifications.
6.8. Seller shall comply with all Federal, State, or local law, rule or regulation.
pi
7. Buyer Operational Responsibilities
7.1. Buyer shall cooperate in the marketing of excess available biosolids processing capacity. Buyer
shall review agreements and may approve or disapprove agreements at its sole discretion.
7.2. Buyer shall provide Seller with access to all facilities and fully cooperate with Seller to facilitate
Seller's operation of Buyer's Equipment pursuant to this Amendment. Buyer also agrees to
cooperate in the acceptance and processing of outside feed stock, and in construction of the
upgrades as described in paragraph 6.7 above.
7.3. In consideration of Buyer's anticipated personnel cost savings due to Seller assuming
responsibility for the Buyer's Equipment, Buyer hereby agrees to pay for electrical and other
utilities associated with Buyer's Equipment and accept water from all dewatering activities at no
charge. Seller and Buyer shall cooperate in selection of polymer to be utilized.
8. Ownership of Equipment. Nothing contained in this Amendment shall be construed to transfer
ownership of the Buyer's Equipment to Seller.
9. Revenue Sharing Methodology. Seller shall maintain records of all revenues and expenses
associated with the acceptance of outside fuel and shall in accordance with Energy Agreement
Paragraph 4.1.5 split on a 50/50 basis any fees derived from treating additional biosolids of other
entities after deducting additional expenses incurred by each party including per Article 12 payment
of taxes. Seller shall be entitled to a 20% markup of total gross revenues to cover management and
administrative expenses.
10. Seller Recovery of Capital Costs. The parties agree that the Seller incurred unanticipated capital
costs constructing improvements between the SSWRC and the Delivery Point to Seller, as that term is
identified in the Energy Agreement. The improvements constructed by Seller provided a permanent
benefit to Buyer's SSWRC. Buyer agrees to reimburse Seller's unanticipated capital costs through
deferral of 75% revenue sharing from net profits until Seller has recouped $500,000. Seller agrees
that this deferral will fully compensate Seller for Seller's unanticipated capital costs.
11. Indemnification by Seller. Seller hereby agrees to indemnify and defend Buyer and its employees
(collectively, the `Buyer Indemnified Parties ") against all Claims to the extent arising out of,
resulting from or caused by Seller's operation or maintenance of the Buyer's Equipment.
12. Indemnification by Buyer. Buyer hereby agrees to indemnify and defend Seller and each of its
subsidiary companies and the directors, officers and employees of each of them (collectively, the
"Seller Indemnified Parties "), and hold each of the Seller Indemnified Parties harmless, against all
Claims to the extent arising out of, resulting from or caused by the ownership and operation of
SSWRCP, insofar as Buyer's operation of such plant relates to the .sub ject matter of this Amendment
but only to the extent and limits set forth in State law to include, but not be limited to, Section 768.28,
Florida Statutes.
13. Stipulated Commercial Operations Date. The parties agree that the Stipulated Commercial
Operations Date specified in Section 3.2 of the Energy Agreement shall be changed to August 31,
2009.
14. Miscellaneous
14.1. Notices. All notices, demands, requests and other communications provided for under
3
this Amendment shall occur as specified in the Energy Agreement.
14.2. No Partnership. This Amendment shall not be interpreted or construed to create an
association, joint venture or partnership among the Parties, or to impose any partnership duty,
obligation or liability on the Parties. No Party shall act as agent of the other, have the authority
or hold itself out as having the authority to bind the other Party to any contract, obligation or
commitment or take any other action on behalf of the other Party, in each case except as
expressly set forth in this Amendment.
14.3. Assignment. This Amendment may not be assigned by any Party without the other
Party's prior written consent which consent may not be unreasonably withheld. No assignment
will relieve the assigning Party of its obligations under this Amendment.
14.4. Further Assurances. Each Party hereby undertakes to take or cause to be taken all
actions, including the execution of additional instruments or documents, necessary to give full
effect to the provisions of this Amendment.
14.5. Third Party Beneficiaries. This Amendment is for the benefit of the Parties hereto and
their respective successors and permitted assigns and the Buyer Indemnified Parties and the
Seller Indemnified Parties, and this Agreement shall not otherwise be deemed to confer upon or
give to any third party any remedy, claim, liability, reimbursement, cause of action or other right.
14.6. Governing Law. This Amendment shall be governed by and shall be construed and
interpreted in accordance with the laws of the State of Florida, venue shall be exclusively in
Seminole County without reference to principles of conflicts of laws thereunder.
14.7. Entire Agreement. This Amendment constitutes the entire agreement between the
Parties and supersedes all prior agreements and undertakings, oral or written, between them with
respect to the subject matter of this Amendment.
14.8. Amendment. No amendment, modification, waiver, change or addition hereto shall be
effective or binding on any of the Parties hereto unless the same is in writing and signed by each
of the Parties hereto.
14.9. Waivers. Any waiver, express or implied, by either Party of any right or of any failure to
perform or breach of this Amendment by the other Party shall not constitute or be deemed as a
waiver of any other right or of any other failure to perform or breach of this Amendment by such
other Party, whether of a similar or dissimilar nature.
14.10. Severability. In the event of the invalidity or unenforceability of any provision of this
Amendment, the validity or enforceability of the other provisions hereof shall not be affected
and the Parties shall substitute for such invalid or unenforceable provision a valid and
enforceable provision that most closely approximates the intended effect of the invalid or
unenforceable provision.
4
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by
their duly authorized officers or agents, all as of the day and year first above written.
MAXWEST- SANFORD, LLC
l
By:.
Name: WILL / /g,yN I - ` �
Title: V /GF PRES'
CITY OF SANFORD
By:
Name: Thomas George
Title: Interim City Manager
JAM13302 .001 \Contract\Fust Amendment to Biosolids Conv & Thermal Purchase 8-2409 Final DOC
5
Q
H
m
a
C
d
S =
.a W
�r
w
g� ❑ ❑ a
! ° O
&
B °
a
5
C�
S
/ \ O
CA
I
I V.. ril L
sa rm
q
N q
Cam a�
a
q �
2
i
S
e
3