1224-MaxWest Second Amdmtly �i
SECOND AMENDMENT TO BIOSOLIDS CONVERSION AND
THERMAL ENERGY PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO BIOSOLIDS CONVERSION AND THERMAL ;
ENERGY PURCHASE AGREEMENT (the "Amendment ") is made and entered into °
this U , 2010 by MAXWEST- SANFORD, LLC, a Florida limited liability?
company (he n "Seller "), and THE CITY OF SANFORD, FLORIDA (herein "Buyer ").
RECITALS:
WHEREAS, the Buyer and Seller executed a BIOSOLIDS CONVERSION AND
THERMAL ENERGY PURCHASE AGREEMENT dated April 10, 2008 (the "Energy
Agreement ") and the FIRST AMENDMENT TO BIOSOLIDS CONVERSION AND
THERMAL ENERGY PURCHASE AGREEMENT dated S4 1`f 2009 (the
"First Amendment "); and
WHEREAS, the Energy Agreement and First Amendment outlined certain roles
and responsibilities for the Parties relating to marketing of excess capacity of the Facility
and division of revenues received by Seller from processing biosolids, FOG and other
materials supplied by third persons; and
WHEREAS, the capacity of the system is limited by Buyer's Fenton dryer (the
"Existing Dryer ") to processing approximately 52 wet tons of biosolids per day (18% dry
solids); and
WHEREAS, several communities have expressed desire to deliver biosolids and
other materials to the Facility for processing and acceptance of such additional materials
from other suppliers would exceed the current capacity of the Facility; and
WHEREAS, the Seller is willing to acquire and install a new dryer to increase the
capacity of the Facility to over 80 wet tons of biosolids per day to allow acceptance of
additional materials by the Facility as set forth in this Amendment;
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 by the First Amendment, is in full force and effect and hereby ratify all
terms and conditions contained therein, as modified by this Amendment.
3. Definitions. Any capitalized term not otherwise defined herein shall have the same
meaning as defined in the Energy Agreement or the First Amendment.
4. Effective Date. This Amendment will become effective upon the date of its execution
and delivery by each of the Parties. The operations, maintenance and revenue sharing
described herein shall become effective upon installation and commissioning of the
New Dryer.
5. Term. This Amendment will continue in effect until termination of the Energy
Agreement.
6. Seller Responsibilities.
6.1. Seller shall purchase and install at the Facility a new dryer (the "New Dryer ")
with a capacity of over 80 wet tons of biosolids per day (18% dry solids). The
New Dryer shall be part of the Facility as defined in the Energy Agreement and
shall be operated and maintained in accordance with the Energy Agreement as
amended.
6.2. The foregoing notwithstanding, Seller shall continue to operate and maintain the
Buyer's Equipment in accordance with the First Amendment; provided, however,
that the limitation in Section 6.5 of the First Amendment shall not apply to the
Belt Press at SSWRC. Seller shall purchase polymer for the Belt Press included in
Buyer's Equipment at the SSWRC.
6.3. Seller and Buyer shall cooperate in marketing the excess Facility capacity in
accordance with the Energy Agreement and First Amendment. The intent is to
maximize use of the available system capacity but Seller shall accept Buyer
produced Biosolid Waste on a first priority basis.
6.4. Seller shall convey title to the New Dryer to Buyer upon the termination of the
Energy Agreement as a result of Seller's default.
7. Buyer Responsibilities
7.1. Buyer shall sell the Existing Dryer as soon as reasonably practical and shall pay
any net proceeds received from such sale to Seller to offset the cost of the New
Dryer. As used in this Amendment, the term "net proceeds" shall mean the
amount received by Buyer from the sale of the Existing Dryer less the expenses
incurred in connection with such sale.
7.2. Buyer will review and approve the New Dryer prior to purchase by Seller.
7.3. Buyer shall assist in marketing excess Facility capacity and will only reject
acceptance of additional materials if the material causes permit violations at the
Facility.
8. Seller Recovery of Capital Cost. The cost incurred by Seller to acquire, install and
commission the New Dryer at the Facility, less the net proceeds from the sale of the
Existing Dryer (the "net cost of the New Dryer "), plus interest at the rate of 3% per
annum on all unrecovered net cost of the New Dryer shall be recovered by Seller from
revenue generated by the Facility. All revenue from the processing of materials
(including Buyer's Biosolid Waste) shall be applied as follows:
First, to the costs of processing such materials; and
Next, 90% to Seller and 10% to Buyer until Seller has recovered the net costs of the
New Dryer; and
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Thereafter, in accordance with the Energy Agreement, as amended by the First
Amendment.
9. Miscellaneous
9.1. Notices. All notices, demands, requests and other communications provided for
under this Amendment shall occur as specified in the Energy Agreement.
9.2. 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.
9.3. 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.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. 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.
9.9. 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.
9.10. 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.
* ** *Signatures on next page * * **
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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 -S ORD, LLC
By: A�K
Name: Q AV 10 G V TAC V
Title: PRE S 1() E 0 Co
CITY OF SANFORD
Name:
r,
Title: V Y11� n t
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