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Home My WebLink AboutRES 23-037RESOLUTION NO. 23-037 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: WHEREAS, OCI Fuels USA Inc., would like to enter into an agreement with the City of Beaumont, to purchase all Biogas extracted from the City Landfill for the purpose of securing a long-term supply of fuel for processing the Landfill Gas into Renewable Natural Gas; and, WHEREAS, the terms of the agreement will be for twenty (20) years with the option to extend for two (2) additional periods of five (5) years each; and, WHEREAS, OCI Fuels USA Inc., will be responsible for all design, installation, operation, and maintenance cost of the Collection System. NOW, THERFORE, BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Gas and Purchase Agreement with OCI Fuels USA Inc., the agreement is substantially in the form attached hereto as Exhibit "A," and respectively, and made a part hereof for all purposes. The meeting at which this resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 24th day of January, 2023. - Mayor Robin Mouton - PRIVILEGED & CONFIDENTIAL OCI Draft January 17, 2023 FOR DISCUSSION PURPOSES ONLY GAS SALE AND PURCHASE AGREEMENT between City of Beaumont, Texas and OCI Fuels USA Inc. Exhibit "A" PRIVILEGED & CONFIDENTIAL OCI Draft January 17, 2023 FOR DISCUSSION PURPOSES ONLY TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND INTERPRETATION................................................................1 1.1 Definitions................................................................................................................1 1.2 Interpretation............................................................................................................1 ARTICLEII TERM.........................................................................................................................2 2.1 Term.........................................................................................................................2 2.2 Due Diligence Period...............................................................................................2 2.3 No Further Obligation..............................................................................................3 ARTICLE III COLLECTION SYSTEM: DESIGN, INSTALLATION, AND OPERATION ....... 3 3.1 Design......................................................................................................................3 3.2 Installation................................................................................................................ 3 3.3 Operation and Maintenance.....................................................................................3 3.4 City Review of Plans; Permits and Approvals.........................................................4 3.5 Records....................................................................................................................4 3.6 Operations Reports...................................................................................................4 3.7 Compliance..............................................................................................................4 3.8 City Sole Duty..........................................................................................................4 3.9 City's Rights and Duties Regarding Operation of Collection System.....................5 3.10 Right of Inspection...................................................................................................5 3.11 Option to Transfer Collection System.....................................................................5 ARTICLE IV PURCHASE AND SALE.........................................................................................5 4.1 Rights to the Landfill Gas and Environmental Attributes.......................................5 4.2 Royalty Payment and Semi -Annual Statement .................................................... 5 4.3 Delivery Point; Title/Risk of Loss...........................................................................6 4.4 Credits/Benefits Retained by Developer..................................................................6 4.5 Monetizing Environmental Attributes.....................................................................6 4.6 Specifications; Right to Flare Gas...........................................................................6 ARTICLEV MEASUREMENT.....................................................................................................7 5.1 Metering and Measurement.....................................................................................7 5.2 City's Option to Install Meters................................................................................7 5.3 Metering Equipment Standards................................................................................7 5.4 System Conditions...................................................................................................7 5.5 Specific Metering Issues..........................................................................................8 ARTICLE VI GAS UPGRADE SYSTEM......................................................................................8 6.1 Right to Construct and Operate................................................................................8 6.2 Permits and Approvals.............................................................................................8 6.3 Design and Construction of the Gas Upgrade System.............................................9 6.4 Developer's Maintenance and Operation of the Gas Upgrade System....................9 6.5 Gas Upgrade System Expansion..............................................................................9 ARTICLE VII SITE LEASE, SUBLEASES, AND EASEMENTS................................................9 7.1 Site Lease.................................................................................................................9 7.2 Subleases................................................................................................................10 7.3 Easements............................................................................................................... 10 ARTICLE VIII GENERAL OBLIGATIONS AND COVENANTS............................................10 8.1 Non -Dedication of Facilities..................................................................................10 8.2 Operations at the Landfill......................................................................................10 8.3 Leachate and Condensate; Other Waste................................................................10 8.4 Air Emission Permitting........................................................................................11 8.5 Taxes......................................................................................................................11 8.6 Inspection of Books and Records; Accounting......................................................11 8.7 Communications....................................................................................................12 8.8 No Adverse Landfill Modifications.......................................................................12 8.9 Insurance................................................................................................................12 ARTICLE IX REPRESENTATIONS AND WARRANTIES......................................................12 9.1 Developer Representations....................................................................................12 9.2 City Representations..............................................................................................13 9.3 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES ......................14 ARTICLE X DEFAULT, REMEDIES, AND TERMINATION EVENTS..................................15 10.1 Event of Default.....................................................................................................15 10.2 City's Remedies.....................................................................................................15 10.3 Developer's Remedies...........................................................................................16 10.4 Termination for Convenience................................................................................16 10.5 Actions Upon Expiration or Termination..............................................................16 ARTICLE XI INDEMNIFICATION AND LIMITATION ON LIABILITY...............................17 11.1 Indemnification......................................................................................................17 11.2 Limitation on Liability...........................................................................................18 11.3 Waiver of Damages; Non-Reliance.......................................................................18 11.4 Non-Recourse........................................................................................................18 ARTICLE XII LENDERS AND LENDERS RIGHTS.................................................................18 12.1 Lenders...................................................................................................................19 12.2 Lender Rights.........................................................................................................19 12.3 Successor Obligations............................................................................................19 12.4 Copies of Notices...................................................................................................19 12.5 No Termination......................................................................................................20 ARTICLE XIII FORCE MAJEURE.............................................................................................20 ARTICLE XIV MISCELLANEOUS............................................................................................20 14.1 Amendment............................................................................................................20 14.2 Governing Law; Jurisdiction..................................................................................20 14.3 Dispute Resolution.................................................................................................21 14.4 Attorneys' Fees......................................................................................................21 14.5 Notices...................................................................................................................21 14.6 Headings................................................................................................................22 14.7 No Waiver..............................................................................................................22 14.8 Facsimile Signatures; Counterparts.......................................................................22 14.9 Severability............................................................................................................22 14.10 .................................................................................................. Entire Agreement.22 14.11 Subcontracting; Assignment..................................................................................22 14.12 Further Assurances.................................................................................................23 14.13 No Partnership.......................................................................................................23 14.14 Confidential Information.......................................................................................23 14.15 Third Party Beneficiaries.......................................................................................24 14.16 Publicity and Corporate Identity............................................................................24 14.17 Tax Benefits and Other Incentives.........................................................................24 14.18 Essential Terms......................................................................................................24 EXHIBITS Exhibit A — Description of the Landfill Exhibit B — Project Milestones Exhibit C — Definitions Exhibit D — Insurance Exhibit E — Site Lease Exhibit F — Easements Exhibit G — Division of Responsibilities Exhibit H — Metering and Measurement Exhibit I — Landfill Gas Specifications Exhibit J — Condensate Delivery Point -iv- OCI Draft January 17, 2023 FOR DISCUSSION PURPOSES ONLY GAS SALE AND PURCHASE AGREEMENT THIS GAS SALE AND PURCHASE AGREEMENT (this "Agreement"), effective as of January _, 2023 (the "Effective Date"), is entered into between City of Beaumont ("C"), and OCI Fuels USA Inc., a Delaware corporation ("Developer'). RECITALS A. City owns and operates a municipal solid waste disposal facility, located at 5895 Lafin Road, Beaumont, Texas 77705 (defined below as the Landfill). B. City desires to grant Developer the exclusive right to develop and install a system to convert biomass to Biogas at the Landfill, including a landfill gas collection and management system at the Landfill, (collectively defined below as the Collection System). C. City desires to sell and Developer desires to purchase all Biogas extracted from the Landfill for the purpose of securing a long-term supply of fuel for processing the Landfill Gas into Renewable Natural Gas, using the Gas Upgrade System on or adjacent to the Landfill. D. The Project will create societal and environmental benefits, which include reduction of greenhouse gas emissions and reduction in other air emissions resulting from operation of the landfill NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and wishing to be legally bound, the parties agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION 1.1 Definitions. For purposes of this Agreement, capitalized terms shall have the meaning specified or referred to in EXHIBIT C. 1.2 Interpretation. In this Agreement, unless otherwise stated: (a) Any reference to an agreement or document (including those set forth electronically on an internet web site) or a portion or provision thereof shall be construed as a reference to the same as has been, or may be, amended, supplemented or otherwise modified and in effect from time to time; (b) Any reference to Applicable Laws and to terms defined in, and other provisions of, Applicable Laws (including those set forth electronically on an internet web site) shall be references to the same (or a successor to the same) as has been, or may be, amended, supplemented or otherwise modified and in effect from time to time; (c) Any reference to a Person shall include that Person's respective successors and permitted assigns; -1- (d) Any reference to a Governmental Authority shall be construed as including a reference to any Governmental Authority succeeding to all or a portion of its functions and capacities; (e) Any reference to a particular Section or Schedule shall be a reference to the relevant Section of, or Schedule to, this Agreement; (f) The words "herein," "hereafter," "hereunder" and similar words shall be construed as a reference to this Agreement as a whole and not to any particular portion or provision of this Agreement; (g) Words in the singular may be interpreted as referring to the plural and vice versa, and words denoting natural persons may be interpreted as referring to other types of Persons and vice versa; (h) Whenever this Agreement refers to a number of days, such number shall refer to the number of calendar days unless Business Days are specified. A requirement that a payment be made (or an obligation be performed or a requirement be satisfied) on or by a day that is not a Business Day shall be construed as a requirement that the payment be made (or obligation be performed or requirement be satisfied) on or by the next following Business Day unless otherwise stated; (i) Whenever the term "include," "includes" or "including" is used herein, such term shall be deemed to be followed by the words "without limitation" and construed as being illustrative and inclusive of but not exhaustive or limited to the items that follow; and 0) Reasonable operations shall mean that operations at the Landfill shall not be interrupted and access to dirt pits shall not be blocked. City shall be the sole decider regarding interruption of operations. ARTICLE II TERM 2.1 Term. The Term of this Agreement commences on the Effective Date and, unless earlier terminated in whole or part as provided in this Agreement, continues and remains in full force for twenty (20) years from and after the Commercial Operations Date (the "Initial Term"); provided, so long as Developer is in material compliance with the terms and conditions of this Agreement and the Site Lease, Developer shall have the right to extend the term of this Agreement for up to two additional periods of five (5) years (each an "Extended Term", and together with the Initial Term, Ahe "Term") by providing written notice to City no less than sixty (60) days prior to the end of the then -applicable Term, upon the same terms and conditions as contained in this Agreement. 2.2 Due Diligence Period. (a) Within ten (10) Business Days after the Effective Date, City shall deliver to Developer any specific design parameters desired for the Collection System as well as certain other site data, including existing Landfill permits, as -built or design liner grades and cross -sections, -2- waste volumes in place, waste types, availability of utility services, and leachate volume data as well as other existing data and information related to the design and operation of the Landfill. (b) During the six-month period beginning upon the Effective Date (the "Due Diligence Period"), Developer shall assess the viability of the Collection System and Gas Upgrade System, including to (i) evaluate requirements for emissions controls at the Landfill, (ii) evaluate whether there is adequate Biogas at the Landfill to support the Collection System and Gas Upgrade System, and (iii) perform engineering design, environmental, and other due diligence for the Collection System and Gas Upgrade System. At any time during the Due Diligence Period, Developer shall have the unilateral right to terminate this Agreement if Developer determines that the Collection System or Gas Upgrade System will not be commercially viable. 2.3 No Further Obligation. If Developer terminates this Agreement pursuant to Section 2_2, such termination shall be without liability among the parties and neither party shall have any further obligation to proceed under this Agreement. ARTICLE III COLLECTION SYSTEM: DESIGN, INSTALLATION, AND OPERATION 3.1 Desi . Developer shall have the exclusive right to finance, permit, design, construct, own and operate the Collection System, and any expansion thereof, in compliance with all Applicable Laws. Developer will provide to City the specifications and engineering drawings for the Collection System for City's review and approval (which shall not be unreasonably withheld or delayed) prior to beginning any construction activities or obtaining any permits for the Collection System. 3.2 Installation. Developer will coordinate with City and make commercially reasonable efforts to install the Collection System so as not to unreasonably interfere with City's activities at the Landfill. Following the Effective Date, Developer and City shall negotiate in good faith an amendment to this Agreement outlining Project Milestones to be set forth on EXHIBIT B with respect to the Collection System and Developer shall use commercially reasonable efforts to achieve such milestones in a timely manner. City shall have the right to inspect construction activities, and upon construction completion, conduct a final inspection of the Collection System. All Collection System facilities installed by Developer or its subcontractors shall be owned by Developer. 3.3 Operation and Maintenance. Developer shall operate and maintain the Collection System during the Term in compliance with all Applicable Laws. At its sole discretion, Developer has the right to subcontract any operation and maintenance obligations to a qualified third -party operator. Developer will make commercially reasonable efforts to operate and maintain the Collection System so as not to unreasonably interfere with City's activities at the Landfill. Without limiting the foregoing, Developer shall agree to conduct activities so as to minimize, to the extent practicable, interference with incoming waste loads, daily cover operations and alternate daily cover operations. Following the Effective Date, Developer and City shall negotiate in good faith an amendment to this Agreement outlining their respective responsibility for certain activities related to operation and maintenance of the Collection System to be included in EXHIBIT G entitled "Division of Responsibilities," which is incorporated herein by reference. -3- 3.4 City Review of Plans: Permits and Approvals. (a) Promptly, but in any case, within ten (10) Business Days after Developer's submission of the specifications, drawings, plans, and other information to City as contemplated under Section 3.1, City shall inform Developer in writing of any comments or reasonable objections to the plans and specifications. (b) At Developer's request and expense, City shall reasonably cooperate with Developer in connection with any hearings, proceedings or other procedures, and with the preparation of any environmental impact reports or studies required in connection with any permits, authorizations or easements related to the installation, construction or expansion of, modification or addition to, or the operation, repair or maintenance of the Collection System. (c) City shall be responsible for obtaining and for paying all costs associated with initial and recurring permits required by any Governmental Authority with respect to the ownership and operation of the Landfill. City shall, if legally required as Landfill owner, obtain such permits as necessary to allow for the construction and/or operation of the Collection System. 3.5 Records. Developer and City will maintain all records, monitoring data, and other documentation relating to this Agreement, including permits for the Landfill and Collection System and all other documentation relating to the operation of the Landfill and Collection System, for a period of ten (10) years. Each party agrees to make available to the other copies of all environmental information reports, environmental impact reports, air impact assessment studies, environmental applications filed, and other necessary available data in its possession relating to the Landfill or the Collection System, which materials are reasonably necessary for the other party to possess in connection with this Agreement and shall be treated as Confidential Information as provided in this Agreement. 3.6 Operations Reports. Developer agrees to provide written or electronic reports on a semi-annual or direct access to any electronic data recording associated with the Collection System to City regarding the status of the Collection System, its output and any anticipated changes therein. 3.7 Compliance. The Collection System, and any subsequent phases of the Collection System, are being constructed and operated voluntarily. As of the Effective Date, the Collection System or any part of the Collection System is not required to be constructed or operated by any current state or federal law. In the event City would like to use the Collection System or any part thereof to comply with any future state or federal law, City shall seek approval from Developer, which approval shall not be unreasonably withheld. City shall pay all costs associated with any upgrades or increase in costs associated with complying with such future regulations, including any additional capital expenditures or incremental increases to operational expenditures incurred by Developer in assisting City with such compliance. 3.8 City Sole Duty. City shall have the sole duty, and Developer shall not have financial responsibility, for any maintenance, repair, or re -drilling for the Collection System as a result of damage caused by the action or inaction of the City or any third -parry representing or acting on behalf of the City, and Developer shall not, under any circumstances, have responsibility to open, repair, or close the Landfill cap, whether on a final or temporary basis, to complete any Developer required scope of services under this Agreement. 3.9 City's Rights and Duties Regarding Operation of Collection System. During the Term of this Agreement, City shall, at its expense (i) provide unimpeded access twenty-four (24) hours a day, seven (7) days a week to the Landfill and the Collection System such that Developer is able to perform all tasks required of it under this Agreement; (ii) reasonably cooperate with Developer in connection with the provisioning of the services, and installation and/or maintenance of the Collection System and related equipment; and (iii) notify Developer immediately of any damage, malfunction, or change relating to the equipment to be maintained by Developer under this Agreement of which City becomes aware. 3.10 Right of Inspection. City and its agents, and the representatives of any applicable regulatory authority, shall have the right to enter upon the Site from time to time to examine the condition and use of the Collection System and to inspect work in progress. 3.11 Option to Transfer Collection System. At any time during the Term, Developer shall have the option to transfer ownership of the Collection System to City on an "as -is, where - is" basis and at a price equal to the tax depreciated value of the Collection System. ARTICLE IV PURCHASE AND SALE 4.1 Rights to the Landfill Gas and Environmental Attributes. City hereby grants and commits to Developer the exclusive right to evaluate, test, treat, process, develop, sell and use, or any one or more of the foregoing, one hundred percent (100%) of all Biogas, produced or producible, and any and all related Environmental Attributes, from the Landfill during the Term of this Agreement. The parties acknowledge that Developer is not obligated to collect or process any minimum quantity of Landfill Gas except as may be collected and processed by the Collection System and that meets the required specifications. During the Term, Developer hereby agrees to receive and purchase from City, and City agrees to provide to Developer, the Landfill Gas. 4.2 Royty Payment and Semi -Annual Statement. (a) Payments. (i) In consideration for the Product, City shall receive a monetary payment from Developer equal to the Royalty Payment. The obligation of Developer to pay the Royalty Payment shall apply during the Commercial Operations Period. (ii) A separate "Fixed Asset Fee" will be deducted from the semi-annual payments made from Developer to Owner in respect of the initial installation cost actually incurred by Developer in connection with the Collection System, estimated to be $75,000 annually and subject to annual inflation, but which will in no case exceed the Royalty Payment in any given year. (b) Semi -Annual Statement. Developer shall provide the Semi -Annual Statement to City on or before the 30th day following (i) the end of each semi-annual period during -5- the Commercial Operations Period or on the final day and (ii) the final day of the Term, as applicable. In the event of any Dispute regarding the content of a Semi -Annual Statement, the parties agree to provide any additional information reasonably requested and work in good faith to resolve such Dispute in accordance with Section 14.3. (c) Amounts Payable. Any amounts payable by Developer to City shall be paid within thirty (30) days following the delivery of the Semi -Annual Statement. Any amounts payable under this Agreement that are not timely paid as set forth in this Agreement shall bear interest calculated from the date when due until such amounts are paid at one percent (1%) per annum above the fluctuating prime rate of interest announced publicly by The Wall Street Journal from time to time as its reference rate. In no event shall the rate of interest charged exceed the maximum rate allowed by Applicable Law. 4.3 Delivery Point; Title/Risk of Loss. Landfill Gas extracted from the Landfill and made available to Developer pursuant to this Agreement shall be made available at the Delivery Point. Title to, and liability and the risk of loss for, Landfill Gas extracted from the Landfill and made available to Developer pursuant to this Agreement and all associated Environmental Attributes shall pass to and be absolutely vested in Developer after passing through the Delivery Point. 4.4 Credits/Benefits Retained by Developer. All Environmental Attributes and Incentives associated with the Landfill Gas produced and collected in the Collection System inure exclusively to Developer. City shall not retain or otherwise receive rights to any Tax, emission, environmental, or other benefits or credits. City will not claim any of the Landfill Gas or Environmental Attributes delivered or sold to Developer under this Agreement as its own or as part of its own carbon inventory, carbon footprint, or other carbon statement or declaration. 4.5 Monetizing Environmental Attributes. City shall assist Developer with reasonable requests in fully maximizing the monetization of and environmental credit generation on the Environmental Attributes sold under this Agreement. Such reasonable requests include, but are not limited to: (a) providing Developer and its agents, counterparties and consultants as well as Governmental Authorities with access to City's property, the Site, and Developer's facilities pursuant to the provisions of this Agreement; and (b) providing Developer with requested documentation and information in City's possession that is required by Applicable Law or requested by Governmental Authorities to support registration, credit generation, maintenance of validity of, or use of the Environmental Attributes, including, without limitation, any attestations and registration materials to support environmental credit generation, including RIN and LCFS credit generation, and demonstrating compliance with the RFS Requirements. City shall upon Developer's reasonable request, execute such documents and take such further actions from time to time as may be necessary to (i) facilitate the transfer of all rights, title and interest in and to all Environmental Attributes to toe Developer; (ii) allow Developer to validate, verify, or register Environmental Attributes; or (iii) facilitate the. transfer of all rights, title, and interest in all Landfill Gas collected, captured or combusted by the Collection System. 4.6 Specifications; Right to Flare Gas. Developer shall not be required to receive and process raw Landfill Gas not meeting the agreed specifications set forth on EXHIBIT I. Developer is authorized by City, and Developer has the right to flare any Landfill Gas that does not meet M agreed specifications in connection with Collection System operations. Developer is not obligated to City to pay a Royalty Payment on such flared Landfill Gas. ARTICLE V MEASUREMENT 5.1 Metering and Measurement. Developer shall install and maintain the equipment necessary to measure the MMbtu value of both Landfill Gas collected in the Collection System and delivered by City to Developer at the Delivery Point as well as the Renewable Natural Gas produced by the Gas Upgrade System. Measurements shall be in MMbtus using the components set forth in EXHIBIT H, provided and maintained at the sole cost and expense of Developer, with the specific metering devices being subject to the reasonable approval of City. 5.2 City's Option to Install Meters. City may, at its option and expense, install and operate meters, instruments, and other equipment to verify the accuracy of Developer's measuring equipment, but such equipment must not interfere materially with the operation of Developer's measuring equipment or the Gas Upgrade System. The check equipment installed by City, if any, is subject at all reasonable times to inspection or examination by Developer, but the calibration and adjustment thereof may be performed only by employees or agents of City. Notwithstanding City's right to install its own check equipment, the measurement of the gas for the purposes of this Agreement will be performed only by Developer's measuring equipment. 5.3 Metering Equipment Standards. Developer, at its sole cost and expense, shall keep the metering equipment of Developer accurate and in repair, making a minimum of one test each six (6) months during the Term. Each parry shall have the right to have its representatives and agents present at any installing, reading, cleaning, changing, repairing, inspecting, testing, calibrating, or adjusting done in connection with the metering equipment used for measuring Landfill Gas hereunder. Developer shall give City at least three (3) Business Days advance notice of any such activities so that City may have its representative(s) present; provided, however, that if Developer gives such notice and a representative of City is not present at the time specified, Developer may proceed. Tests to verify the accuracy of measuring equipment shall be performed by the manufacturer of the equipment, or other third parry reasonably acceptable to City, and the result of each test shall continue to be used until the results of a subsequent test are known. In addition, City may request a special test of the metering equipment at any time. The expense of any such special test shall be borne by Developer only if the equipment is found to be inaccurate by more than two percent (2%); otherwise, such expense shall be borne by City. If, upon any test, the equipment is found to be inaccurate by more than two percent (2%), meter readings shall be corrected for a period extending back to the time such inaccuracy first occurred, if that time can be ascertained. If that time is not ascertainable, corrections shall be made for one half of the elapsed time since a previous meter test verified operation within two percent (2%) accuracy. No adjustment to any payments will be made with respect to meter errors of two percent (2%) or less. If any equipment requires replacement, Developer shall replace it promptly with a similar or more accurate type of equipment, subject to City's reasonable approval, which shall not be unreasonably withheld, conditioned, or delayed. 5.4 System Conditions. The parties recognize that moisture, pressure, or other conditions within the system may prevent available metering equipment from maintaining proper -7- calibrations. If such conditions persist, the parties will attempt to determine by mutual agreement a protocol for estimating Landfill Gas deliveries using such data as is available. If the parties cannot so mutually agree, they will appoint a mutually acceptable third -party consultant and will share equally the cost of such consultant and will accept the recommendations of such consultant as final and non -appealable in estimating Landfill Gas deliveries thereafter. 5.5 Specific Metering Issues. For purposes of this Agreement, atmospheric pressure is assumed, unless otherwise established by the standard gas measurement procedures in the industry, to be 14.74 psia. In addition, the specific gravity and the gross heating value of the gas flowing through the meter(s) may be determined by "on -site" sampling and laboratory analysis or by any other method that is of standard industry practice. The unit of measurement is one cubic foot at a pressure base of 14.74 psia and at a temperature base of sixty (60) degrees Fahrenheit. Meter measurements will be computed by Developer into such units in accordance with the ideal gas laws for volume variations due to metered pressure and corrected for deviation using average values of recorded specific gravity and flowing temperature. ARTICLE VI GAS UPGRADE SYSTEM 6.1 Right to Construct and Operate. City hereby grants to Developer, and Developer shall have, the exclusive right (but not the obligation), to design, develop, construct, own and - operate the Gas Upgrade System on the property of City, including by contracting with a third - party to own and operate the Gas Upgrade System, as more particularly described in the Site Lease and in accordance with the provisions of this ARTICLE VI. Any decision to construct or continue operating the Gas Upgrade System will be in Developer's sole and absolute discretion. 6.2 Permits and Approvals. It shall be Developer's responsibility, at its sole cost and expense, to cause all necessary environmental impact studies, statements or reports, zoning and land use approvals, permits, licenses and utilities to be obtained for the installation and construction of the Gas Upgrade System in compliance with all Applicable Laws. Developer shall provide, or cause to be provided, City with a copy of related applications or filings with Governmental Authorities before filing such documents and City shall have ten (10) Business Days to provide comments, which Developer shall consider in good faith. At all times during the Term, Developer shall, at its sole cost and expense, cause to be obtained and maintained in effect all permits and authorizations required in connection with the installation, construction, expansion, modification or addition to, or the operation, repair or maintenance of the Gas Upgrade System, and Developer shall ensure compliance of the operation and maintenance of the Gas Upgrade System with all Applicable Laws. City shall cooperate reasonably with Developer's efforts in connection with its obligations in this Section 6.2. Each party agrees to make available to the other copies of all environmental information reports, environmental impact reports, air impact assessment studies, environmental applications filed and other necessary available data in such party's possession relating to the Landfill, the Collection System or the Gas Upgrade System, which materials are reasonably necessary for the other party to possess in connection with this Agreement and such information shall be treated as Confidential Information as provided in this Agreement. -8- 6.3 Design and Construction of the Gas Upgrade de System. Developer shall be responsible for the design, construction, and operation of the Gas Upgrade System on the Site. Prior to the commencement of any construction, Developer shall, at its sole cost and expense, engage a qualified engineer to prepare plans and specifications in sufficient detail to show the design, character, and appearance of the Gas Upgrade System. Such plans and specifications shall consider and comply with all Applicable Laws. Based on such plans and specifications, Developer and City shall negotiate in good faith an amendment to this Agreement outlining Project Milestones to be set forth on EXHIBIT B with respect to the Gas Upgrade System and Developer shall use commercially reasonable efforts to achieve such milestones in a timely manner. Until the Commercial Operations Date, Developer shall report to City monthly on the status of the construction of the Gas Upgrade System and the progress of Developer towards completion of each Project Milestone. All proprietary data, drawings, plans, specifications and reports developed by Developer and related to the Gas Upgrade System will remain the intellectual property of Developer. Developer shall provide City with copies of all permits, licenses or approvals relating to the Gas Upgrade System and planned business operations as of the Commercial Operations Date. Developer has the right to subcontract any obligation under ARTICLE VI to a third party. 6.4 Developer's Maintenance and Operation of the Gas Upgrade System. Developer shall cause the Gas Upgrade System and the Site to be maintained and operated at all times in good working order and a reasonably neat and clean condition, ordinary wear and tear excepted, in conformity with Applicable Laws. Developer shall not allow operation of the Gas Upgrade System to have a material adverse impact on the Landfill. 6.5 Gas Upgrade ade System Expansion. The Developer has the right to increase the design capacity, or otherwise modify the Gas Upgrade System, to accommodate the delivery and use of additional volumes of Landfill Gas, provided any modification of the Gas Upgrade System remains within the footprint of the original Site Lease. ARTICLE VII SITE LEASE, SUBLEASES, AND EASEMENTS 7.1 Site Lease. In order to facilitate Developer's performance of its obligations hereunder, the parties agree that a Site Lease is necessary for the Project. Following the execution of this Agreement, the City and Developer promptly and in good faith shall negotiate, execute and deliver the Site Lease on customary terms and in form and substance reasonably satisfactory to each of City and Developer, to be attached hereto as EXHIBIT E. During the Term, Developer will lease the Site from City. Developer shall pay City rent in the amount of One and No/100 Dollars ($1.00) per year for each calendar year or partial year during the Term, payable on or before each December 31st during the Term. The parties hereto contemplate that this Site Lease should not and shall not be filed for record, but in lieu thereof, within sixty (60) days after the Effective Date parties shall execute a memorandum of Site Lease to be recorded for the purpose of giving record notice of the appropriate provisions of the Site Lease. Any improvement placed upon the Collection System by Developer, as well as fixtures and articles of personal property attached to or used in connection with the Site Lease, shall not become the property of City. Developer also has the right, in its discretion, to sublease all or a portion of the Site to a third party for the purpose of constructing, installing and operating the Collection System and/or Gas Upgrade System. City shall provide unhindered rights of access to, and egress from, an area on which the Project will be installed. 7.2 Subleases. Developer is authorized to sublease to one or more entities (each a "Sublessee") certain of the rights and benefits granted Developer under this Agreement for the purpose of enabling the Sublessee to install equipment as such entity may require to take and use Renewable Natural Gas purchased from Developer. 7.3 Easements. In order to facilitate the installation of a lateral pipeline and interconnection facilities to enable transportation of the Renewable Natural Gas, City agrees to grant to Developer, at no charge, easements on customary terms and in form and substance reasonably satisfactory to each of City and Developer, to be attached hereto as EXHIBIT F, over, across and under the Landfill for purposes of ingress and egress, utilities access, and replacement of the pipeline. ARTICLE VIII GENERAL OBLIGATIONS AND COVENANTS 8.1 Non -Dedication of Facilities. Unless otherwise required by Applicable Law, neither party shall dedicate any part of any facility owned or operated by it at or relating to the Landfill to the public generally and indiscriminately, for the exercise of a public franchise, or in the exercise of a public utility function. 8.2 Operations at the Landfill. (a) Flaring. Subject to Section 4.6 (which priority of operations shall permit City to periodically operate any flare(s) to verify such remain operational or in ready -mode), City agrees that it will not flare any Landfill Gas that the Gas Upgrade System can use for the generation of Renewable Natural Gas. (b) No Hazardous Waste. City covenants that, during the Term, (i) no waste will be accepted for disposal at the Landfill that is not in accordance with Applicable Laws, and (ii) no application or petition will be made for a RCRA subtitle C Permit for the Landfill or any portion thereof. (c) Access Road. City shall give twelve (12) months' prior written notice before opening operations in cells 4 and 5 of the Landfill. Prior to City beginning operations in cells 4 and 5, Developer shall construct an alternative access road to allow access to the Project that will not interfere with active Landfill operations, subject to prior approval of City. 8.3 Leachate and Condensate; Other Waste. (a) Developer may use, at no additional cost, the City Disposal System for the disposal of Leachate or Condensate resulting from the operation of the Collection System or produced at the Gas Upgrade System. City shall, in accordance with all Applicable Laws, receive and combine any such Leachate or Condensate from Developer with City's leachate for disposal. Developer shall deliver any such Condensate to the point shown in EXHIBIT I, provided, that City shall provide all necessary and convenient easements for Developer to install any necessary -10- pipelines from its facilities to such location. City shall also, to the extent permitted under all Applicable Laws, accept from Developer for disposal, at no additional cost, all refuse and other solid waste produced in connection with the operation of the Collection System and Gas Upgrade System. (b) Developer shall use commercially reasonable efforts to ensure that there is no spillage or unintended discharge of Leachate and Condensate into the environment from the Collection System and Gas Upgrade System or any pipeline or other mechanism carrying Leachate and Condensate from the Collection System and Gas Upgrade System to the City Disposal System or any other disposal system, and that all pipelines and other equipment used by Developer for the storage, transportation, or disposal of Leachate and Condensate resulting from the operation of the Collection System or produced at the Gas Upgrade System are operated and maintained in compliance with all Applicable Laws. 8.4 Air Emission Permitting. Both parties agree that they will not voluntarily take the position that the activities of City and Developer at the Landfill should be treated as a combined or single source. In addition to any other right or remedy of the parties, if any Governmental Authority, pursuant to its application or interpretation of any Environmental Laws or otherwise, is successful in asserting the position that activities of City and Developer at the Landfill will be treated as a combined or single source for purposes of air permitting of air emission, the parties, in their discretion, may attempt to renegotiate in good faith, and for a specified time, the terms and conditions of this Agreement to account for the increased burden of such regulatory activity on the parties while maintaining, as closely as possible, the legal and economic principles and allocations set forth in this Agreement prior to any such amendment. Should City's Landfill become subject to more stringent air emissions regulations following the Effective Date, City shall be solely responsible for capital expenditures and the incremental operational expenditures related to any expansion of the Collection System or other investment required by such change in law. 8.5 Taxes. All Taxes now or hereafter imposed upon the production, severance, gathering, sale, or delivery of Landfill Gas prior to the Delivery Point shall be paid by City. All Taxes now or hereafter imposed upon the production, severance, gathering, sale, or delivery of Landfill Gas at and following the Delivery Point shall be paid by Developer. In addition, Developer shall be solely responsible for all Taxes or other fees, costs, or expenses attributable to the Gas Upgrade System. 8.6 Inspection of Books and Records; Accounting. Each party shall have the right to inspect, audit, copy and verify the books, charts and records of the other party pertaining to the operations and the transactions that are the subject matter of this Agreement, at the office of the other party where such records are maintained, during normal business hours upon five (5) Business Days' advance written notice. Each party agrees to keep its books and records of account so pertaining to this Agreement in accordance with generally accepted accounting principles and practices in the industry. If either party fmds at any time within two (2) years after the date of any payment made hereunder ' that there has been an overpayment or underpayment to City or Developer, the party finding the error shall promptly notify the other party in writing detailing the amount and explanation of the error. In the event of an underpayment to City, Developer shall pay the amount due within fifteen (15) days after the receipt of the bill correcting such error, with interest in the manner provided in Section 4.2(c) of this Agreement applied from the date any such -11- payment should have been made. In the event of an overpayment to City, Developer may only offset such overpayment against future payments due to City hereunder, unless the Agreement has terminated, or there will not be sufficient future payments against which such overpayments may be offset, in which case, City shall pay the amount due to Developer within fifteen (15) days after receipt of the bill correcting the error. 8.7 Communications. The parties agree to hold direct communications between employees, agents, or other representatives at the Landfill, Collection System, and the Gas Upgrade System on at least a quarterly basis to discuss Developer's reports, projected operations, and the Gas Upgrade System capacity, City's current and projected operations at the Landfill, and the general quality and quantity of Landfill Gas. 8.8 No Adverse Landfill Modifications. City shall not install, or allow to be installed, any systems or devices at the Landfill or make any physical modifications to the Landfill that would decrease the amount of Landfill Gas. During the Term, City will not accept waste for disposal at the Landfill that is classified as hazardous or is not otherwise in accordance with Environmental Laws. 8.9 Insurance. Developer shall, at its own expense, purchase, maintain and keep in force during the Term of this Agreement such insurance as set forth on EXHIBIT D. Parties acknowledge that City is self -insured, and can, at its own discretion, seek additional insurance; but same is not required under this Agreement. ARTICLE IX REPRESENTATIONS AND WARRANTIES 9.1 Developer Representations. Developer hereby represents and warrants to City as of the Effective Date as follows: (a) Existence. Developer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and is qualified to do business in the State of Texas. Developer has the power and lawful authority to enter into and perform its obligations under this Agreement and any other documents required by this Agreement to be delivered by Developer. (b) Authorization. The execution, delivery, and performance by Developer of and under this Agreement and any related agreements have been duly authorized by all necessary corporate action on its behalf, and do not and will not violate any provision of its organizational documents or result in a material breach of or constitute a material default under any agreement, indenture, or instrument of which it is a party or by which it or its properties may be bound or affected. (c) Litigation. There are no actions, suits, or proceedings pending or, to the best of Developer's knowledge, threatened against Developer or any of its properties before any court or governmental department, commission, board, bureau, agency, or instrumentality that, if determined adversely to it, would have a material adverse effect on the transactions contemplated by this Agreement. -12- (d) Execution. Developer has duly executed and delivered this Agreement, and (assuming due authorization, execution and delivery by City) this Agreement constitutes a legal, valid and binding obligation of Developer enforceable against Developer in accordance with its terms. 9.2 City Representations. City hereby represents and warrants to Developer as of the Effective Date as follows: (a) Existence. City is the governing authority of the City of Beaumont situated in Jefferson County, Texas, a Texas incorporated municipality consisting of a Council -Manager Government. City has the power and lawful authority to enter into and perform its obligations under this Agreement and any other documents required by this Agreement to be delivered by City. (b) Authorization. The execution, delivery, and performance by City of and under this Agreement and any related agreements have been duly authorized by all necessary corporate action on its behalf, and do not and will not violate any provision of its organizational documents or result in a material breach of or constitute a material default under any agreement, indenture, or instrument of which it is a party or by which it or its properties may be bound or affected. (c) Liti ag tion. There are no actions, suits, or proceedings pending or, to the best of City's knowledge, threatened against City or any of its properties before any court or governmental department, commission, board, bureau, agency, or instrumentality that, if determined adversely to City, would have a material adverse effect on the transactions contemplated by this Agreement. (d) Execution. City has duly executed and delivered this Agreement, and (assuming due authorization, execution and delivery by Developer) this Agreement constitutes a legal, valid, and binding obligation of City enforceable against City in accordance with its terms. (e) Title to Landfill Gas. City represents and warrants that it has good and marketable title and processing rights to the Biogas in the Landfill, free and clear of any and all liens, encumbrances, and claims, and that City has the exclusive right and lawful authority to deliver same. Prior to the Effective Date, City has not sold, transferred or made available for use by any other Person any Biogas to be collected, captured, combusted, or created pursuant to this Agreement. (f) Environmental Attributes. City represents and warrants that it has not previously sold, transferred, or committed to sell or transfer the Environmental Attributes of the Biogas to be made available to Developer under this Agreement to any other party. City represents and warrants that the Environmental Attributes are valid, represent Biogas produced at the Landfill, are eligible to generate RINs and LCFS Credits when upgraded to RNG and used as a transportation fuel. Upon each delivery of Biogas, City makes the additional representations and warranties as it concerns the transfer of Environmental Attributes to Developer under this Agreement: (i) all gas delivered to Developer was sourced from the Landfill and meets the definition of Biogas; (ii) City has not encumbered, or otherwise agreed with any other parry to -13- prevent the future creation or sale of, the Environmental Attributes to be sold to Developer; (iii) City has not sold or agreed to sell or otherwise transferred the Environmental Attributes associated with the Biogas to be sold to Developer to any party other than Developer; (iv) all raw Biogas and associated Environmental Attributes sold under this Agreement are eligible for RIN and LCFS credit generation based upon the rules and regulations in place as of the Effective Date; (v) City has not claimed, and agrees that it will not hereafter claim, any Environmental Attributes, "renewable gas", "green gas" or similar attributes of the Landfill or Biogas to be sold to Developer as belonging or attributable to City, to the Landfill or the Landfill's production equipment; and (vi) City has not and shall not at any time in the future take any action that it knows would impair the validity of the Environmental Attributes, including the validity of any RINs or LCFS credits generated and associated with the Biogas sold and delivered under this Agreement. (g) Disposal Conditions. City represents and warrants that it has provided all Disposal Conditions applicable to the Landfill to Developer for Developer's review and that City has no intention to alter or modify any such Disposal Condition(s) unless required by Applicable Law. (h) City Provided Data. City represents and warrants the data it has provided to Developer is accurate in all material respects. (i) Environmental Matters. (i) City represents and warrants that it has conducted all appropriate inquiry and City does not know or have reason to know of any activity at the Landfill which has been conducted, or is being conducted, except in compliance with all statutes, ordinances, regulations, orders, and requirements of common law concerning (1) those activities, (2) repairs or construction of any improvements, (3) handling of any materials, (4) discharges to the air, soil, surface water, or ground water, and (5) storage, treatment, or disposal of any waste at or connected with any activity at the Landfill. (ii) City represents and warrants, to the best of its knowledge, that no contamination is present at the Landfill. For purposes of this section, the term "contamination" shall mean the uncontainable presence of hazardous substances at the Landfill or arising from the Landfill, which may require remediation under any Environmental Laws. For purposes of this Agreement, "hazardous substances," shall mean hazardous substances as defined in Federal statutes, rules, regulations and orders, "regulated substances" within the meaning of subtitle I of the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), and any applicable state statute, rules, or regulations defining hazardous wastes, requiring environmental cleanup or regulating groundwater contamination. (iii) City represents and warrants to the best of its knowledge, that it does not know or have any reason to know of any polychlorinated biphenyls or substances containing polychlorinated biphenyls present at the Landfill. 9.3 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES A am WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS NOR IMPLIED. ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. ARTICLE X DEFAULT, REMEDIES, AND TERMINATION EVENTS 10.1 Event of Default. The parties agree that the occurrence of any of the following events or conditions with respect to a party shall constitute an Event of Default under this Agreement: (a) Developer fails to make any payment or amount due and payable under this Agreement within fifteen (15) days after receiving written notice from City of the nonpayment; provided that failure to pay amounts disputed in good faith shall not constitute an Event of Default under this Section 10.1(al unless and until such amounts are fully and finally determined to be owed. (b) Failure of either parry to satisfy and perform any of the other material obligations (such obligations not covered by items (a) or (c) of this Section 10.1) imposed on it by the terms, covenants or promises of this Agreement, and such failure is not cured to the other parry's reasonable satisfaction within sixty (60) days after receipt of a Notice of Default specifying the nature of the failure; provided, however, the defaulting parry shall have an additional period of ninety (90) days from receipt of such Notice of Default (or one hundred and fifty (150) days total) within which to cure the failure if such failure is not curable within the sixty (60) days and the defaulting parry continues to diligently pursue a cure. (c) (i) Either party becomes insolvent or unable to pay its debts when due; generally fails to pay its debts when due; files a petition in any bankruptcy, reorganization, winding up, or liquidation proceeding or other proceeding analogous in purpose or effect relating to such party; applies for or consents to the appointment of a receiver, trustee, or other custodian for the bankruptcy, reorganization, winding up or liquidation of such parry; makes an assignment for the benefit of creditors; or admits in writing that it is unable to pay its debts; or (ii) any court order or judgment is entered confirming the bankruptcy or insolvency of Developer or City, or approving any reorganization, winding up or liquidation of Developer or City or a substantial portion of its assets; or (iii) there is instituted against Developer or City any bankruptcy, reorganization, winding up or liquidation proceeding, or other proceeding analogous in purpose or effect, and the same is not dismissed within ninety (90) days after the institution thereof, or (iv) a receiver, trustee or other custodian is appointed for any part of the assets of Developer or City. 10.2 City's Remedies. At any time after an Event of Default by Developer has occurred and not been cured, pursuant to this Agreement, City may without obligation do any one or more of the following: -15- (a) Terminate this Agreement and the Project Agreements and cease to sell Landfill Gas to Developer. (b) Sell Landfill Gas to any other Person. (c) Proceed to protect and enforce any or all its rights and remedies under this Agreement or the Site Lease, and to exercise any or all other rights and remedies available to it at law, in equity or by statute. 10.3 Developer's Remedies. At any time after an Event of Default by City has occurred and not been cured, as pursuant to this Agreement, Developer may without obligation do any one or more of the following: (a) Terminate this Agreement and the Site Lease and cease to purchase Landfill Gas from City. (b) Remove the Gas Upgrade System and any additions, improvements, equipment, and fixtures or property of Developer on the property leased pursuant to the Site Lease. (c) Proceed to protect and enforce any or all of its rights and remedies under this Agreement and to exercise any and all other rights and remedies available to it at law, in equity or by statute. 10.4 Termination for Convenience. At any time during the Term, if Developer determines that the Collection System or Gas Upgrade System will not be commercially viable, Developer shall have the right to terminate this Agreement for convenience; provided, however, in the event of such a termination, Developer shall transfer ownership of the Collection System to City at no cost. 10.5 Actions Upon Expiration or Termination. (a) Following the delivery of any termination notice, the parties shall consult in good faith for a period of thirty (30) days as to the appropriate actions, if any, that can be taken to mitigate the consequences of the relevant default, taking into account all prevailing circumstances. (b) In the event of any termination or expiration of this Agreement: (i) Developer shall transfer ownership of the Collection System to City on an "as -is, where -is" basis and, if due to the expiration of this Agreement or an earlier termination due to City default, at a price equal to the tax depreciated value of the Collection System or, if due to an early termination due to Developer default, at no cost to City; and (ii) Developer shall remove the Gas Upgrade System and the Gas Upgrade System Equipment and restore the portion of the Landfill occupied by the Gas Upgrade System to substantially the same condition as it was prior to the construction and installation of the Gas Upgrade System. Following the removal of the Gas Upgrade System -16- and the Gas Upgrade System Equipment, neither party shall have any further obligation under this Agreement, except for any liabilities or obligations accruing to a party prior to the termination or expiration of this Agreement and those obligations that expressly survive the termination or expiration of this Agreement. (c) Upon expiration or termination of this Agreement or the Site Lease, upon request of City, Developer shall execute and deliver to City any documentation necessary to evidence the termination and revocation of any rights of Developer to the Site, the Landfill Gas and other rights provided in connection with this Agreement or the transactions contemplated hereby. ARTICLE XI INDEMNIFICATION AND LIMITATION ON LIABILITY 11.1 Indemnification. Subject to the other provisions of this Agreement, including, without limitation, any obligation for which a sole remedy is explicitly specified, to the fullest extent permitted by Applicable Law: (a) Developer shall indemnify and defend City and its Affiliates, and their respective directors, officers, partners, shareholders, employees, agents, representatives, co - venturers, successors, permitted assigns, contractors or servants (collectively, the "CLty Indemnified Parties"), harmless for, from, and against, any and all Third Party Claims, whether taxable or not, arising out of, resulting from or in connection with the negligent or willful acts or omissions of Developer, its Affiliates or their respective employees, agents, officers, invitees, contractors or representatives in the performance of this Agreement. (b) City shall indemnify and defend Developer and its Affiliates, and their respective directors, officers, partners, shareholders, employees, agents, representatives, co - venturers, successors, permitted assigns, Developers, or servants (collectively, the "Developer Indemnified Parties"), harmless for, from, and against, any and all Third Party Claims, whether taxable or not, arising out of, resulting from or in connection with the negligent or willful acts or omissions of City, its Affiliates or their respective employees, agents, officers, invitees, contractors, or representatives in the performance of this Agreement. (c) In the event of the assertion or commencement by any Person of any Third Party Claim or Dispute (whether against Developer or against any other Person) with respect to which any indemnitee may be entitled to indemnification, compensation, or reimbursement pursuant to this ARTICLE XI (a "Third Party Claim'), a party, either the City or Developer, as the case might be, shall have the right, at its election, to proceed with the defense of such Claim or Dispute on its own with counsel. Such party shall have the right to settle, adjust, or compromise such Claim or Dispute; provided, however, that if such party settles, adjusts, or compromises any such Claim or Dispute without the consent of the indemnitors, such settlement, adjustment, or compromise shall not be conclusive evidence of the amount of damages incurred by the indemnitees in connection with such Claim or Dispute (it being understood that if the party requests that any of the indemnitors consent to a settlement, adjustment, or compromise, such indemnitor shall not unreasonably withhold or delay such consent). Such party shall give the indemnitors prompt notice after it becomes aware of the commencement of any such Claim or -17- Dispute against the other party; provided, however, that any failure on the part of a party to so notify the indemnitors shall not limit any of the obligations of the indemnitors, or any of the rights of any indemnitee, under this ARTICLE XI (except to the extent such failure materially prejudices the defense of such Dispute). If a party does not elect to proceed with the defense of any such Dispute, the indemnitor may proceed with the defense of such Dispute with counsel reasonably satisfactory to the other party; provided, however, that the indemnitor may not settle nor compromise any such Dispute without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed). 11.2 Limitation on Liability. Developer shall have no liability as a result of, or in relation to, the acts or omissions of City in connection with the operation of the Landfill. In all circumstances, to the extent allowed by Texas law, City shall have full responsibility and liability for the control or containment of, or for damage occasioned by, Landfill Gas migration or groundwater contamination beyond or within the grounds of the Landfill. Developer shall have no responsibility or liability for the control or containment of, or for damage occasioned by Landfill Gas migration or groundwater contamination beyond or within the grounds of the Landfill, except to the extent caused by any grossly negligent acts by Developer, such as failure to operate the Collection System in substantial compliance with all Applicable Law. The City shall have no liability as a result of, or in relation to, the acts or omissions of Developer, its agents or employees, or subcontractors, their agents or employees in connection with the construction or operation of the Collection System and the Gas Upgrade System, except to the extent caused by City's grossly negligent acts, such as failure to operate in substantial compliance with it all Applicable Laws. The limitation of liability in this Section 11.2 shall survive cancellation, termination, or expiration of this Agreement. 11.3 Waiver of Damages; Non -Reliance. Except in connection with Claims by third parties that are not Affiliates of the parties hereto, neither party shall be liable to the other party for any special, indirect, loss of use, lost profits, or consequential (other than actual and direct) damages arising under or out of this Agreement or the transactions contemplated in this Agreement. 11.4 Non -Recourse. All Claims (whether in contract or in tort, in law or in equity) that may be made by a party and may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty, whether written or oral, made in or in connection with this Agreement or as an inducement to enter into this Agreement), may be made only against the entity that is expressly identified as a party to this Agreement. No Non -Party Affiliate shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or affiliates) for any obligations or liabilities arising under, in connection with, or related to this Agreement or for any Claim based on, in respect of, or by reason of this Agreement or its negotiation or execution; and each party and its Affiliates, waives and releases all such liabilities, Claims and obligations against any such Non -Party Affiliates. Non - Party Affiliates are expressly intended as third -party beneficiaries of this provision of this Agreement. ARTICLE XII LENDERS AND LENDERS RIGHTS -18- 12.1 Lenders. Developer may encumber, mortgage, lease, or hypothecate to any person or entity providing equity or debt financing by deed of trust, mortgage, or other security instrument all or any part of Developer's interest in the Project, equipment, or appurtenant facilities, property rights, and interests of Developer under this Agreement. Developer may also assign, pledge, and set over to any Lender all rights of Developer in this Agreement, any other agreement with City regarding the Collection System, the Gas Upgrade System, and any governmental authorization, permit or license regarding the same. No such assignment, mortgage, lease, hypothecation, or pledge shall relieve Developer of any obligation under this Agreement. City shall agree to reasonably cooperate with Lenders and enter into estoppels, consents to assign, consents, and other agreements reasonably requested by Developer and Lender. 12.2 Lender Rights. In addition to any other right provided to any Lender by other provisions of this Agreement, any Lender shall have the right at any time during this Agreement to: (i) do or cause to be done any act or thing required of Developer under this Agreement or any other agreement between City and Developer, and any such act or thing performed or caused to be performed by such Lender shall have the effect of having been done by Developer itself, (ii) realize on the security afforded such Lender by taking possession of all or any portion of the Collection System or Gas Upgrade System owned by Developer and/or exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by security documents assigned to or entered into by the Lender, and (iii) subject to the restrictions noted in paragraph (ii) of this Section, transfer, convey, or assign the interests of Developer under this Agreement, and any other agreement between City and Developer regarding the Collection System or Gas Upgrade System (together, the "City/Developer Agreements"), to any purchaser of any foreclosure or secured party sale, whether such sale be conducted pursuant to court order, power of sale contained in the Lender mortgage or applicable law, and to acquire and succeed to the interest of Developer under City/Developer Agreements by virtue of any foreclosure or secured party sale, whether such sale be conducted pursuant to a court order, a power of sale contained in the Lender mortgage or applicable law, or by virtue of a deed and/or bill of sale and assignment in lieu thereof. City shall grant any Lender or its authorized designee immediate access to the Landfill, the Collection System, and the Gas Upgrade System and any related equipment or facilities to the extent necessary to remedy any breach or default of Developer under this Agreement or in exercise of the Lender's remedies under any security document. If Lender(s) are prohibited by any bankruptcy, insolvency, or judicial proceeding from commencing foreclosure proceedings or other actions to preserve their secured interests) in the Collection System, the Gas Upgrade System, and City/Developer Agreements, any right of City to terminate any City/Developer Agreement shall be suspended for so long as the Lender(s) diligently pursue such proceedings and cure any default in the payment of monies due City. 12.3 Successor Obligations. If any Lender or other third party acquires Developer's interests under City/Developer Agreements as provided in Section 12.2, such Lender or third party shall accept in writing and shall without further action be subject to, the same terms and conditions set forth in the City/Developer Agreements, and shall be required to immediately cure all defaults or breaches of Developer under this Agreement. No such assignment shall be effective without the consent of City, such consent not to be unreasonably delayed, conditioned or withheld. 12.4 Copies of Notices. City shall provide any Lender with copies of all default and termination notices required to be given to Developer under this Agreement simultaneously with ME the forwarding of such notice to Developer. No such notice shall be deemed effective absent the providing simultaneous copy to Lender. Developer shall designate in writing the Collection System Lender(s) and shall provide to City in writing the names and address of such Lender(s). Failure of Developer to provide names and addresses of Lender(s) shall relieve City from the notice obligation of this Section 12.4 as to the omitted Lender. 12.5 No Termination. City shall not accept a voluntary or mutual agreement to modify or terminate this Agreement without the express written consent of any Lender whose name and address have been provided to City. In the event that this Agreement is terminated, City shall, upon written request from any Lender(s) made within sixty (60) days after such termination, enter into, with a designee of said Lender(s), an agreement identical in all material aspects to this Agreement, provided that such Lender(s) or their designees cures all breaches and defaults of Developer capable of cure prior to the execution of said agreement, including all payment defaults. City shall allow the Lender(s) or their designee a reasonable time to cure any such curable default to City's receipt of notice regarding the desire for a new agreement. This section shall survive any termination of this Agreement. ARTICLE XIII FORCE MAJEURE If either parry is rendered unable, wholly or in part, by the occurrence of an event of Force Majeure to carry out its obligations under this Agreement, the obligations of the affected party shall be suspended (i) during, but no longer than, the continuance of the event, and (ii) only with respect to the party's specific obligations hereunder affected by the event. The affected party shall give to the other party prompt written notice of the Force Majeure event, which notice shall include a description of the nature of the event, its cause and possible consequences, its direct impact on the parry's inability to perform all or any part of its obligations under this Agreement, the expected duration of the event, and the steps being taken or proposed to be taken by the affected party to overcome the event; provided, that the failure to give such notice shall not prevent a party from claiming Force Majeure but the performance of such party's obligations under this Agreement shall not be excused until the date written notice is provided. If an event of Force Majeure continues for more than three hundred and sixty-five (365) consecutive days, the party that has not asserted the event of Force Majeure may terminate this Agreement upon giving written notice to the other party. Any such termination shall be without liability between the parties, except for any liabilities or obligations accruing to a party prior to the termination of this Agreement and those obligations that expressly survive the termination of this Agreement. The party claiming an event of Force Majeure shall promptly notify the other parry of the termination of such event. ARTICLE XIV MISCELLANEOUS 14.1 Amendment. This Agreement may only be modified, amended, or supplemented by an instrument in writing executed by Developer and City. 14.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would -20- cause the application of the laws of any jurisdiction other than the State of Texas. By execution and delivery of this Agreement, with respect to legal actions that may arise under this Agreement, each of the parties knowingly, voluntarily and irrevocably: (i) waives any right to trial by jury; (ii) agrees that any such Claim or Dispute shall be decided by court trial without a jury; and (iii) agrees that any party to this Agreement may file an original counterpart or a copy of this Section with any court as written evidence of the consents, waivers and agreements of the parties set forth in this Section. Venue for any dispute arising from this Agreement shall be proper in Beaumont, Jefferson County, Texas. 14.3 Dispute Resolution. The parties agree to address any dispute first among the parties for a period of thirty (30) days, to be elevated to senior leadership if resolution cannot be achieved. Only if senior leadership are unable to resolve the dispute within an additional thirty (30) days will the parties have recourse to available legal and equitable remedies. Nothing in this provision shall waive the right of either party to seek a jury trial. 14.4 Attorneys' Fees. If the parties resort to legal action for the enforcement or interpretation of this Agreement or for damages on account of a breach hereof, the prevailing party shall be entitled to an award of its fees and costs to the extent allowable by law (whether taxable or not), including, without limitation, expert witness fees, all litigation related expenses, and reasonable attorneys' fees incurred in connection with such action. In determining which party is the prevailing party, the term "prevailing party" means the net winner of the Dispute, taking into account the claims pursued, the claims on which the pursuing party was successful, the amount of money sought, the amount of money awarded, and offsets or counterclaims pursued (and whether such were pursued successfully or unsuccessfully) by the other party. 14.5 Notices. All notices or other communications required or permitted under this Agreement shall be in writing and may be given by depositing the same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, by overnight courier or by delivering the same in person to such party. Notices shall be deemed given and effective, the day personally delivered, or the day after being sent by overnight courier, subject to signature verification. Any party may change the physical address for notice by notifying the other parties of such change in accordance with this Section. Such notice shall be addressed as follows: If to Developer, addressed to it at: OCI Fuels USA Inc. 2800 Post Oak Blvd., Suite 3150 Houston, Texas 77056 Attn: Legal Department Email: uslegaldepartment@oci.nl If to City, addressed to it at:1 City of Beaumont, Texas 801 Main Street, Suite 300 Beaumont, TX 77701 Attn: Kenneth R. Williams, City Manager Email: Kenneth. Williams@BeaumontTexas.Gov -21- with copies to: Holland & Knight LLP 811 Main Street, Suite 2500 Houston, Texas 77002 Attn: Joshua Belcher, Esq. Email: Joshua.belcher@hklaw.com with copies to: City of Beaumont, Texas 801 Main Street, Suite 300 Beaumont, TX 77701 Attn: June Ellis, Assistant City Manager — Operations Email: June.Ellis@BeaumontTexas.Gov 14.6 Headings. Headings or captions herein are merely for convenience and are not a part of this Agreement and shall not iri any way modify or affect the provisions of this Agreement. 14.7 No Waiver. No delay or omission to exercise any right or power shall be construed to be a waiver of any default or acquiescence therein or a waiver of any right or power, and every such right and power may be exercised from time to time and as often as may be deemed expedient. Either party's acceptance of any performance due under this Agreement that does not comply strictly with the terms of this Agreement shall not be deemed to be a waiver of any right of such parry to strict performance by the other parry. Acceptance of past due amounts or partial payments shall not constitute a waiver of full and timely payment of any sums due under this Agreement. 14.8 Facsimile Signatures; Counterparts. Facsimile signatures of the parties shall be acceptable for all purposes. This Agreement may be executed in two or more originals, facsimile or pdf counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. 14.9 Severability. If any term or provision of this Agreement should be held invalid or unenforceable, the parties to this Agreement shall endeavor to replace such invalid terms or provisions by valid terms and provisions that correspond to the best of their original economic and general intentions. The invalidity or unenforceability of any term or provision of this Agreement shall not be deemed to render the other terms or provisions of this Agreement invalid or unenforceable. 14.10 Entire Agreement. This Agreement constitutes the entire agreement between Developer and City relating to the subject matter of this Agreement and supersede all prior written and oral agreements and understandings and all contemporaneous oral representations or warranties in connection therewith. Neither Developer nor City have made and do not make any representations or warranties, expressed or implied, except as specifically set forth in this Agreement, and Developer and City hereby expressly acknowledge that no such representations or warranties have been made by the other party. 14.11 Subcontracting_ ent. (a) Subcontracting. Developer shall have the right to subcontract the operations and maintenance obligations of this Agreement and the right to sublease the Site Lease -22- for the Project. Developer shall provide prior written notice to City of its intention to subcontract, in whole or in part, its rights or delegate its duties pursuant to this Agreement. In the event Developer uses such subcontractor(s), Developer will cause any and all subcontractors to be bound by all the terms and conditions set forth in this Agreement (and provide evidence of such to City upon City's request). (b) Assigning This Agreement and all of the terms, conditions, and limitations contained in this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns; provided, however, that except as otherwise provided in this Agreement, neither parry shall assign this Agreement (nor any interest, right or benefit in or under this Agreement), in whole or in part, without first obtaining the written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, and notwithstanding the foregoing, Developer may assign all of its rights, duties, and obligations under this Agreement to an Affiliate of Developer upon prior written notice but without prior written consent of City. (c) Collateral Assigninent. Developer has the right to collaterally assign this Agreement and if Developer makes a collateral assignment, then any such assignee -Lender shall have the rights set forth in ARTICLE XII. 14.12 Further Assurances. The parties shall perform all such acts (including, without limitation, executing and delivering instruments and documents) as reasonably may be necessary to fully effectuate the intent and each and all of the purposes of this Agreement, including, without limitation, consents to any assignments, transfers, subleases, or easements permitted hereunder. 14.13 No Partnership. Nothing contained in this Agreement shall be construed to create any association, trust, partnership, or joint venture or impose a trust or partnership, duty, obligation, or liability or an agency relationship on, or with regard to, either party. Neither party shall have the right to bind or obligate the other party in any way or manner unless otherwise provided for in this Agreement. 14.14 Confidential Information. (a) Except as required by Applicable Law or for attestations of Environmental Attributes, neither party shall, without the prior written consent of the disclosing party, disclose (regardless of the form of disclosure) any Confidential Information except to Recipients. The receiving parry shall notify any Recipients of the confidential nature of the Confidential Information, and the receiving party hereby agrees to be responsible for any breach of the terms of this Section by any Recipients of Confidential Information from the receiving party. (b) If a party is legally required to disclose Confidential Information by Applicable Law, the receiving party shall make reasonable efforts to resist disclosure of such information, and shall provide prompt notice of any judicial or other governmental action or other Applicable Law requiring disclosure to the disclosing party, and the disclosing party shall be afforded the opportunity (consistent with the legal obligations of the receiving party) to exhaust all reasonable legal remedies to maintain the Confidential Information in confidence. - 23 - (c) In the event that there is a breach by either party of the provisions of this Section, the disclosing party shall be entitled to seek a temporary and permanent injunction to restrain the receiving party from disclosing in whole or in part any Confidential Information, as prohibited hereunder, and the disclosing parry shall be entitled to reimbursement for all costs and expenses, including reasonable attorney's fees, in connection therewith. Nothing in this Section shall be construed as prohibiting the disclosing party from pursuing such other remedies available to it for such breach including the recovery of damages from the receiving party. (d) Upon the expiration of the Term or the earlier termination of this Agreement, promptly upon request, the parties shall agree on the terms of return to the other party or destruction of: (i) all Confidential Information then held by such or any of its agents, representatives, or employees, and (ii) all information and documents then held by Developer or any of its agents, representatives, or employees related to the quantity, quality, components, and elements of the Landfill Gas produced by the Landfill; -provide d that both parties may retain one copy of any documents retained solely for the purpose of compliance with Applicable Law or document retention policies. 14.15 Third Party Beneficiaries. This Agreement is intended to be solely for the benefit of the parties and their successors and permitted assignees and is not intended to and shall not confer any rights or benefits on any other third party not a signatory to this Agreement. 14.16 Publicity and Corporate Identity. Unless otherwise required by Applicable Law, neither party may use the name, trade name, trademarks, service marks, or logos of the other party or the existence of this Agreement or the project described in this Agreement or any likeness, photo, film, or similar like kind reproduction of the other's facilities or property in any publicity releases, news releases, annual reports, signage, stationery, print literature, advertising, or websites without securing the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. Neither party shall issue any publicity or news release regarding the Project without the written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. The parties shall not, without prior written consent of the other party, represent, directly or indirectly, that any product or service offered by the party has been approved or endorsed by the other party. 14.17 Tax Benefits and Other Incentives. The Parties agree to discuss in good faith any amendments to this Agreement necessary or advisable to maximize the benefit to the Project and the Parties of any tax benefits and other financial incentives that may be or become available under Applicable Law, including pursuant to the federal Inflation Reduction Act of 2022 and any requirements in associated implementing regulations and guidance issued by a Governmental Authority. 14.18 Essential Terms. The Parties acknowledge and agree that this Agreement is a written contract and that it state the essential terms of the agreement by which Developer will provide goods or services to City. [Signature page to follow] -24- IN WITNESS WHEREOF, Developer and City have executed this Agreement to be effective as of the Effective Date. CITY: DEVELOPER: City of Beaumont OCI Fuels USA Inc., a Delaware corporation By: Name: Title: By: Name: Title: [Signature Page - Gas Sale and Purchase Agreement] EXHIBIT A DESCRIPTION OF THE LANDFILL Landfill Address is 5895 Lafin Road Beaumont, Texas 77705 Type I Municipal Solid Waste Landfill MSW Permit Number 1486B Latitude: N 30' 02' 05" Longitude: W 94' 07' 41" Elevation: 16.94 feet above mean sea level (MSL) Approximately 2,400 feet south of US Highway 287/69/96 at the intersection with Fannett Road, 2,200 feet northeast of Hillebrandt Bayou, and 1,200 east of Latin Drive, immediately south of the Port Arthur Fresh Water Canal. Exhibit A, Page 1 EXHIBIT B PROJECT MILESTONES2 Milestones for Collection System [TBD] Milestones for Gas Upgrade System [TBD] z Note: Timelines to be developed based on third -party proposals for the construction and installation of these facilities. Exhibit B, Page 1 EXHIBIT C DEFINITIONS The following words and terms shall have the meanings specified in this EXHIBIT C when used in this Agreement. "Affiliate" means any Person that controls or is controlled by, or is under common control with, a parry, with the word "control" (and correspondingly, "controlled by" and "under control with"), as used with respect to any Person, meaning (1) ownership of fifty percent (50%) or more of all of the voting stock of any corporation, or fifty percent (50%) or more of all of the legal and equitable interest in any other business entity, or (2) the possession of or the power to direct or cause the direction of the day-to-day management and policies of such Person. "Applicable Laws" means any and all applicable federal, state, county and local laws, statutes, rules, regulations, licenses, ordinances, judgments, orders, decrees, directives, guidelines or policies (to the extent mandatory), permits and other governmental and regulatory approvals, including, without limitation, any and all Environmental Laws, or any similar form of decision or determination by, or any interpretation or administration of, any of the foregoing by any Governmental Authority with jurisdiction over City, the Collection System, Developer, the Gas Upgrade System, the Site, the Landfill, or the performance of the work under this Agreement and the transactions contemplated in this Agreement. "Biro as" means a mixture of hydrocarbons that is a gas at sixty (60) degrees Fahrenheit and one (1) atmosphere of pressure that is produced through the anaerobic digestion of organic matter. "Business Day" means any day other than a Saturday, Sunday or legal holiday in the State of Texas, or a day on which banking institutions chartered by the State of Texas, or the United States of America, are legally required or authorized to close. "Developer Indemnified Parties" shall have the meaning set forth in Section 11.1(b). "Claims" means any and all costs, losses, expenses, suits, actions, proceedings, damages, penalties, fines, and liabilities, including, without limitation, reasonable attorneys' fees, expert witness fees, litigation expenses, and court and other costs, whether taxable or not. "Collection System" means the fixtures, equipment and assets to extract, collect and convey Landfill Gas from the Landfill up to and including the Delivery Point and including, without limitation, the wells, pipes, headers, and gathering systems, flares, vacuum pipelines, blowers, condensate knockout vessels or systems, and all other fixtures, equipment and assets that are used for the purpose of collecting, producing, treating, or delivering or facilitating the collection, production, treatment, or delivery of Landfill Gas, as constructed and installed as provided under this Agreement or as the same is modified; expanded and replaced; but excluding in all cases the Gas Upgrade System and the Gas Upgrade System Equipment. "Commercial Operations Date" means the date on which Developer accepts initial delivery of Landfill Gas from City for processing in the Gas Upgrade System, in accordance with the terms of this Agreement, which shall occur on the day specified by Developer by at least ten (10) days' advance written notice to City. Exhibit C, Page 1 "Commercial Operations Period" means the period commencing on the Commercial Operations Date and ending on the twentieth (20th) anniversary thereof. "Condensate" means any liquids that condense or otherwise separate from the Landfill Gas during collection, transporting, or processing of Landfill Gas after it has passed the Delivery Point. "Confidential Information" means all data, information, reports, or documents developed or collected by one party and provided or made available to the other parry or its agents (i) in connection with the Landfill, the Collection System, or City's operations, or the Gas Upgrade System or Developer's operations, or (ii) as a result of any of the rights granted to, or obligations undertaken by, either parry pursuant to this Agreement, whether or not designated as confidential, but shall not include information to the extent such information (a) is in the public domain at the time of disclosure, or (b) following disclosure, becomes generally known or available through no action or omission on the part of the receiving party, or (c) is known, or becomes known, to the receiving party from a source other than the disclosing party or its representatives; provided that disclosure by such source is not in breach of a confidentiality agreement with the disclosing party, or (d) is independently developed by the receiving party or its directors, officers, employees, agents, legal counsel, or consultants without reference to the disclosing party's Confidential Information. "Delivery Point" means the designated interconnection point (i.e., flange) where City shall make available Landfill Gas to Developer at a location designated by City immediately downstream of City's blowers, which is more particularly described on EXHIBIT A attached hereto. "Disposal Conditions" means any licenses, permits, approvals and authorizations required in order for City to own, operate and accept waste materials at the Landfill. "Dispute" means any legal action arising under or in connection with this Agreement or any other instrument, document, or agreement executed or delivered in connection with this Agreement, or in any way connected with, related, or incidental to the dealings of the parties with respect to this Agreement or such other instrument, document or agreement or the transactions contemplated in this Agreement. "Due Diligence Period" shall have the meaning set forth in Section 2.2. "Effective Date" means the date designated in the preamble of this Agreement. "Environmental Attributes" means any and all current and future rights, credits, benefits, air quality credits, methane capture credits, renewable energy credits, emission reductions, offsets and allowances, howsoever referred to, associated with the 'capture, production, generation, transportation, use and environmental characteristics of Biogas, the production, generation, transportation, use and environmental characteristics of RNG derived from such Biogas, the displacement of fossil -based natural gas for any use (including thermal use, electricity generation and use as a transportation fuel), the reduction of air pollutants or the avoidance of the emission of any gas, chemical or other substance, including without limitation any similar attributes, whether arising out of international, federal, state or local laws or regulations including without limitation renewable energy credits under Renewable Portfolio Standards, RINs under the EPA RFS Program and LCFS Credits under the LCFS. Exhibit C, Page 2 "Environmental Laws" means any and all applicable federal, state, county, municipal and local laws, statutes, rules, regulations, ordinances, codes, restrictions, permitting requirements, licensing requirements, consent decrees, decrees, judgments, permits, licenses, covenants, deed restrictions, and any other governmental requirements or obligations of any kind or nature relating to (i) environmental pollution, contamination, or other impairment of any kind or nature, (ii) regulation or protection of health, safety, natural resources, or the environment, or (iii) any hazardous waste or other toxic substances of any nature, whether liquid, solid, or gaseous, including, without limitation, smoke, vapor, fumes, soot, radiation, acids, alkalis, chemicals, wastes, by-products, and recycled materials, as now existing or hereafter in effect. These Environmental Laws include, without limitation, the Renewable Fuel Standard, the California Low Carbon Fuel Standard, the Federal Solid Waste Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Federal Resource Conservation and Recovery Act of 1976, the Federal Comprehensive Environmental Responsibility Cleanup and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, as amended by the Solid and Hazardous Waste Amendments of 1984, the Occupational Safety and Health Act, the Hazardous Materials Transportation Act, the Oil Pollution Act of 1990, all as amended from time to time, regulations of the Environmental Protection Agency, regulations of the Nuclear Regulatory Commission, regulations of any state department of natural resources or state environmental protection agency, now or at any time hereafter in effect and all applicable local ordinances, rules, regulations, and permitting or licensing requirements. "Extended Term" shall have the meaning set forth in Section 2.1. "Fixed Asset Fee" has the meaning set forth in Section 4.2(a)(ii). "Force Mai eure" means any cause or causes, individually or in the aggregate, not reasonably within the control of and without the fault or negligence of the parry claiming suspension of the performance of its duties under this Agreement and that by the exercise of reasonable diligence such party is unable to prevent or overcome, including, without limitation, acts of God, acts of war or conditions attributable to war, labor disputes, sudden actions of the elements, sabotage by third parties, civil commotion, weather events, enactment after the Effective Date of statutes, laws, or ordinances by legislative bodies, issuance of regulations or orders by administrative agencies or commissions, and action by federal, state, municipal, or regulatory courts, but not including, under any circumstances, financial inability to perform. For the purposes of this Agreement, the requirement that "Force Majeure" be a cause not within the control of the affected party that by the exercise of reasonable diligence such party is unable to prevent or overcome shall apply to all of the above examples, but shall not require the settlement of strikes and lockouts by acceding to the demands of third parties directly or indirectly involved in such strikes or lockouts when such course is deemed inadvisable in the sole and absolute discretion of the party subject to such strikes or lockouts. "Gas Upgrade S sy tem" means the Gas Upgrade System Equipment and associated structures installed by the Developer at the Site and easements for the purpose of processing Landfill Gas, generating Renewable Natural Gas, and transporting Renewable Natural Gas, together with the interconnection equipment installed on the Site and easements, but not including the Collection System. Exhibit C, Page 3 "Gas Upgrade System Equipment" means equipment, including, without limitation, internal combustion engines, boilers, turbines, cooling towers, generators, transformers, electrical switch gear, controls, pipelines, fuel treatment equipment, and similar equipment, as well as all furniture, fixtures, equipment, used in connection with the Gas Upgrade System, computer hardware and software and databases related to the operations of the Gas Upgrade System, vehicles used primarily in connection with the Gas Upgrade System, operating instructions and manuals, books and records related to the operation of the Gas Upgrade System, and all governmental permits, approvals and authorizations related to the Site, the Gas Upgrade System Equipment or the Gas Upgrade System, but not including the Collection System. "Governmental Authority" means any court or tribunal in any jurisdiction or any federal, state, municipal, or other governmental body, agency, authority, department, commission, board, bureau, or instrumentality. "Incentives" means all tax benefits, grants, and other financial incentives arising in connection with the production and use of the Renewable Natural Gas. Incentives do not include Environmental Attributes. "Initial Term" has the meaning set forth in Section 2.1. "Landfill" means the real property commonly known as the Beaumont Municipal Landfill, which is more particularly described on Exhibit A attached hereto, as now constituted and including any expansions of the Landfill, whether adjacent or not, following the Effective Date during the Term. "Landfill Gas" means all Biogas generated from the decomposition of refuse and other solid wastes deposited in, or located on, the Landfill and collected by the Collection System. "LCFS" means any federal, state or provincial low carbon fuel standards other similar programs requiring the reduction of greenhouse gases and carbon intensity in transportation and other fuels, including, without limitation: (i) the regulations, orders, decrees and standards issued by a Governmental Authority implementing or otherwise applicable to the California Low Carbon Fuel Standard as set forth in 17 CCR § 95480 et seq. and each successor regulation, as may be subsequently amended, modified, restated from time to time; and (ii) the regulations, orders, decrees and standards issued by a Governmental Authority implementing or otherwise applicable to the Oregon Clean Fuels Program as set forth in section 340-253-0000 et seq. of the Oregon Administrative Rules as may be subsequently amended, modified, restated from time to time. "Leachate" means the liquid produced at the Landfill from the decomposition of waste materials in the Landfill. "Lender" means a Person providing senior or subordinated construction, interim, or long-term debt or refinancing for or in connection with the development, construction, equipment procurement, installation or operation of the Project. "MMbtu" means one million British Thermal Units. "Non -Party Affiliate" means any director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of either City or Developer, as applicable. Exhibit C, Page 4 "Notice of Default" means a written notice from the non -defaulting parry to the defaulting party specifying an Event of Default. "Person" means any natural person or any association, firm, partnership, joint venture, corporation, limited liability company or other legally recognized entity, whether for profit or not for profit. "Product" means the Landfill Gas and Environmental Attributes. "Project" means the Collection System and the Gas Upgrade System. "Project Agreements" means the Site Lease and such other agreements between Developer and City as relate to the Collection System and the Gas Upgrade System. "Project Milestones" means each of the activities identified on EXHIBIT B attached hereto (each a "Project Milestone") to be completed by Developer within the time period set forth for each such Project Milestone, which Developer shall use reasonable efforts to achieve in a timely manner. "Recipients" means consultants, agents, representatives, actual or potential financiers, or employees of the receiving party who (i) shall be obligated to keep Confidential Information confidential and (ii) need access to such Confidential Information to assist the receiving party in the exercise of its rights and the performance of its obligations under this Agreement. "Renewable Natural Gas" means upgraded and purified renewable natural gas produced from Landfill Gas by Developer at the Gas Upgrade System and that may be injected into common carrier pipeline. "Renewable Fuel Standard" or "RFS Prog am" means the renewable fuel standard program under the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007 and implementing regulations, including without limitation, 40 C.F.R. Part 80, Subpart M, and each successor law and regulation as may be amended, modified or restated from time to time. "RFS Requirements" means that the Landfill Gas provided hereunder constitutes Biogas from landfills, as set forth in Table 1 to 40 C.F.R. § 80.1426 of the Renewable Fuel Standard regulations, promulgated pursuant to the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, as may be amended from time to time. "RINs" has the same meaning as defined under the RFS Program. "Royalty Pam" Developer shall pay to City a per/MMBtu Royalty Payment based on the production volumes, on a tiered basis, of pipeline quality Renewable Natural Gas from the Gas Upgrade System in accordance with the following: Price MMBtu/day $0.00 0 - 599 Tier 1 $1.25 600 - 850 Exhibit C, Page 5 Tier 2 $2.00 850 - 1,100 Tier 3 $2.75 1,100 - 1,350 Tier 4 $3.50 1,350+ "City/Developer Agreements" shall have the meaning set forth in Section 12.2. "City Disposal System' means the fixtures, equipment and assets of City, whether owned or leased by City, that are used as of the Effective Date or thereafter by City to extract, collect, convey and dispose of Leachate from the Landfill. "City Indemnified Parties" shall have the meaning set forth in Section 11.1(a). "Semi -Annual Statement" means a written statement provided by Developer to City setting forth the following with respect to the previous semi-annual period: (i) the number of MMbtus of Landfill Gas delivered to the Delivery Point, the volume of Landfill Gas delivered to the Delivery Point, the average percentage of methane content in the volume of Landfill Gas delivered to the Delivery Point and the average heat content value in the volume of Landfill Gas delivered to the Delivery Point; (ii) the volume and number of MMbtus of Renewable Natural Gas produced by the Gas Upgrade System, (iii) the calculation of the Royalty Payment; (iv) any credits or benefits realized under Section 4.4 of this Agreement; and (v) any other information reasonably requested by City. "Site" has the meaning given that term in the Site Lease. "Site Lease" means the Site Lease Agreement under which Developer, as Lessee, leases from City, as Lessor, the Site located at the Landfill and obtains easement rights to the portion of the surface acreage on which there is erected the Project. "Sublessee" has the meaning set forth in Section 7.2. "Tax or Taxes" means all taxes, fees or other assessments, including, without limitation, income, excise, property, sales, franchise, intangible, withholding, social security and unemployment taxes imposed by any federal, state, local, or foreign governmental agency, and any interest or penalties related thereto. "Term" has the meaning set forth in Section 2.1. "Third Party Claims" means any Claims asserted by any Person and/or any Governmental Authority. Exhibit C, Page 6 EXHIBIT D INSURANCE At all times during the Term, Developer shall, at its sole cost and expense, procure and maintain, or cause to be maintained by a third party, the following minimum types and amounts of insurance coverage; provided, however, that nothing in this EXHIBIT D shall be deemed to limit Developer's obligations to City under this Agreement: (a) All Risk Insurance. All risk property insurance, including, without limitation, fire, wind storm, equipment breakdown coverage, extended coverage, and special extended coverage insurance with respect to the Project in an amount equal to one hundred percent (100%) of the full replacement cost value (replacement cost new, including, without limitation, debris removal and demolition), with such additional coverage as Developer may elect or the holder of any fee or leasehold mortgage may require, including, without limitation, earthquake and flood coverage, and sprinkler leakage endorsement. (b) General Liability/Excess Liability. Commercial general liability insurance against damages and liability, including contractual liability coverage and coverage with respect to attorney's fees on account of or arising out of injuries to or the death of any person or damage to property, however occasioned, in, on or about the Landfill and the Site, in amounts of $2,000,000 per occurrence for property damage or injury or death of one or more persons, and $10,000,000 in the aggregate. (c) Employer's Liability/Workers' Compensation. Employer's liability insurance in an amount of $1,000,000 per accident, and $1,000,000 per employee by disease, and workers' compensation insurance as required by Applicable Law. (d) Environmental Liability/Impairment. Environmental liability or impairment insurance in amounts and types sufficient to cover any exposure related to any hazardous materials stored, generated, handled or disposed of by Developer, its agents or employees at the Landfill and any storage tanks or equipment maintained at the Landfill by Developer, its agents or employees, in an amount of $5,000,000 per incident. If the environmental liability insurance policy is a "claims - made" policy, Developer must maintain such insurance for no less than three (3) years after the termination or expiration of this Agreement. (e) Automobile Insurance. Automobile liability and bodily injury, property damage, contractual liability and sudden and accidental pollution insurance in an amount of $2,000,000 per occurrence, which coverage shall apply to all owned, non -owned, hired, and leased vehicles (including trailers). (f) Form of Insurance/Companies. All insurance required hereunder shall be in a form satisfactory to City and carried with companies reasonably acceptable to City, in good standing with the Department of Insurance for the state in which the Landfill is located, and have a rating issued by A.M. Best & Company of at least "A- VIII". Developer shall meet insurance requirements with any combination of self-insurance, primary, or excess insurance policies. With the exception of the workers' compensation policy and the All Risk Policy, City and its Affiliates and subsidiaries shall be named as additional insureds, for and to the extent of the obligations Exhibit D, Page 1 accepted by Developer under Section 11.1 of this Agreement, under all insurance policies required pursuant to the terms of this Section, and Developer shall provide City with a Certificate of Insurance showing the appropriate parties as additional insureds; provided that City and its Affiliates and subsidiaries shall be additional insureds only for and to the extent of the obligations accepted and assumed by Developer under Section 11.1 of this Agreement. Developer shall provide a thirty (30) day written notice to City in the event of cancellation of coverage. A certificate of insurance for any renewals of or replacements for such contracts of insurance shall be delivered to City no later than the date such contracts of insurance become effective. All deductibles in the above described insurance policies shall be at Developer's sole cost and expense. All insurance shall be written as primary, noncontributing (except for claims arising out of sole negligence) with or in excess of any coverage that Developer does or may carry. (h) Coverage of Invitees, Agents and Developers. Developer's minimum insurance coverage shall cover the presence and activities of Developer's invitees, subcontractors, agents, and Developers on or at the Landfill. 1i.9 1�■1 AI Exhibit D, Page 2 EXHIBIT E SITE LEASE Exhibit E, Page 1 EXHIBIT F EASEMENTS Exhibit F, Page 1 EXHIBIT G DIVISION OF RESPONSIBILITIES Exhibit G, Page 1 EXHIBIT H METERING AND MEASUREMENT As of the Effective Date, and subject to update by Developer as may be required in connection with the plans and specifications for the Collection System and the Gas Upgrade System, the metering equipment will include: (i) gas chromatograph (or equivalent technology) to determine the BTU content of the Landfill Gas, (ii) thermal mass flow meter to measure the volume rate of Landfill Gas flared by the Developer, if applicable, (iii) one or more venturi flow meters, averaging pitot tube or other similar accurate measuring device at the Gas Upgrade System to measure the volume flow rate of the Landfill Gas, and (iv) programmable logic controller to accumulate the BTU energy metered. Such equipment must be installed and operated, and gas measurement computations must be made, in accordance with current industry standards and good engineering practices, and shall be located as close to the Delivery Point as reasonably practicable. Exhibit H, Page 1 EXHIBIT I LANDFILL GAS SPECIFICATIONS As of the Effective Date, and subject to update by Developer as may be required in connection with the plans and specifications for the Collection System and the Gas Upgrade System, the Landfill Gas specifications are as follows: at a minimum, Landfill Gas must contain H2S levels below 500 ppm and 02 content below 3.5% and shall be compliant with the RFS Requirements. Exhibit I, Page 1 EXHIBIT J CONDENSATE DELIVERY POINT In connection with the Site Lease, Developer and City shall designate the condensate delivery point and shall include an illustration at Exhibit J. Exhibit J. Page 1 PRIVILEGED & CONFIDENTIAL FOR DISCUSSION PURPOSES ONLY CI Draft January 1, 22 GAS SALE AND PURCHASE AGREEMENT between City of Beaumont, Texas and CI Fuels USA Inc. Exhibit "All PRIVILEGED & CONFIDENTIAL 00 Draft January 1, 2023 FOR DISCUSSION POSES ONLY TABLE CONTENTS Page ARTICLE I DEFINITIONS AND INTERPRETATION.... t i i i b h I-b aii i i N. i it 4. a a 1010ere■M*r R3F*f#*F ri i11 Y■i 1■#*r ri#■ta aa■ 1.1 Definitions..... .................. 1 0 4 0 a 6 .1 0 0 S 0 0 1 # o $- a & 0 8 a i a 0 0 1 4: 1 1 a a & a 0 0 a a a 0 4 ik 1 0 ik & w a q w i I * 4, 0 0 P. W 4, 0 4 0 * 9 a I i , 0 6 0 d 9 a a 0 a 0 Vi 11i■■*riYFsr7iRifR#!lifMa4ai#FF4riirii#R*atJYaiiiJaaiR11aa&a#YYMYa4i'i■i'r■a4ri■#ra4rrrF#a#Fai*a}Ma■iMM#rata■■saa■a0 ��y,F!! 1Y�� n7 7s +#1= 1 42 , iterp�,ietat , n. Fi1Ya■Yrr4■MMsa I.■i1a*MaFF*14#R M4014a to rr 1 s 000;0Y01 as 1 M 611104i'64.1i#*Y16*aa10*at a a s r iii i is 4t r 0rr790 Ma 1# M Y Y t 40 ARTICLEH TERM... 4 i►JiM*r a r a i a 1 0 4.4 r r r#44i 11Mi# i i f r x f l■ s# y i j 4 i i 04 90 M#440■1 Yi iay4#araliYi'iYFiymean as 44 iarsl F4a4M 4 M i 1 r 4 F i M F i J i t t i t F a a a■■ r■2 2.1 Teim...MFtaMaa■■YaM■■aY4Y**ti#4Poo i4#M Yyri Masset*F■aair*I0 ii Y*MR•4t4*tr a■ai6 6.11 Y a a 4 a.■►■ lsra#111aa# 74441 Y 4 F i i r F 1 a 4 a a a r a r■■ r*2 2.2 Due Diligenco, l i# bey* i Opp M* f i} rFM# r i i 6 6I 1 0 0 # 4 i to f a a a t# r a m t i r i 1 r 3 i 4# M## R 4 a k r!} i Y i i 1.M# i# 1 i* i# a 2 2.3 No Further Obligation, iatiaisa■iii■*■*fr;r■a■r■awi■■at4iR*Rr 40*4if rYi■ii rs i ra MtrYYii#i is#i t a 0 a r a F a a 1 0 4 R R a r I. R R 4 i i ti ARTICLE III COLLECTION SYSTEM: DESIGN, INSTALLATION, AND OPERATION ....... 3.1 Design . ........................................ i i# r Y Y i 1. -0 i r# R 1 1 i Y Y 1 t 1 1 t/ f Y t r a t r■■ a i A. f F* f M 1 0 r 1 f■ 4 1 10 s# M Y F 1 r i# J 1 1# M** t* f& i * + M r a 3 .2 Installation. } t■ it■■ it ii■si#*ii rt■■r■Bair■ara rssr■■ai ri R*af4i Fa RaaM Rai. jiW#iti Y#i iaa■isi'■ri■irt4f4#4fMMR#M##itri Yii see of 6-1413 , i ten a 0 P 14i t#■ a s a f■ s t 0 W r a s a r■ t t a■■ i t f M F f M f F i 4 f 1 1 i 46* Y a * Y i i i Y rtt■ ata. 4 Maintenance. Operation an� no aa aa tt tr sr 6a si sY ri ■w a■■#r# s7 rf t#■ i*■■ ar ■i d c • F Ms■ s i Armit and Approvals f#if#aa■r■4■ssMs4*F*4i#*i4#rir City Review of Plans; Permits t # R# t 4# i t t# t F a i##■ i l i i' s i#*■ t# J M 4 a t a r t t R s s f 4 a i i r* i# rt i M R F# t s 4 a t a M J i# i t# 3 Records . #Yti#iW*iiiM■sRr4a■iM■is ifi#rJr}fM#M 4f t o I M *ti 3i i' Operations Reports tYi##*r■t4■i■■tMtsi3trtFR■r44iRMR■rRYaaiMiYRRriiliON. MJYair4rar isi YYiiii woo **aa#rM*Ma4■■Fa*M to rJ4%ii .7 Compliance■■ s■ i M# t i b 4 i 4 f# F M M R 1 i 1► i} Y} a* t 4 i i Y Y# 4 7 1 a s i# 1■ a t} s 1 i 1 t f P. i 4 4 i 4 M 1 1 f 1 i i r i# r 1 1 66 i y f t i S Y t i Y S i 1 i r i Y t i■■ Y■ s R■ 4 4 4# r r f 4 i City Sole Duty ............................. w 1# 4 b$ a Y Y} Y Y i■ r F 4 i i t r t a s■■ t■ s i s r a s■■ ff s s i■ a M 1 F r 4* a*■ r R s a a a i b t a a i 1* 1 s r j t i a r w a M 3.9 City' Rights and DutiesRegaxding Operation of Collection �� llla •4#ititYY■#ry ■ra r■■t.l 3.10 Right of Inspection ........................Mrs.■#rss■#FrfiffrJliri fJ t4tta YJS#si■ts##YttriajrMMj4s#f r1 iYY*Y arf#4*#f iY it ■11 Option to Transfer Collection System. *4i J R R M i 4 4* M a Y t i Y Y Y M M Y M i i 1 a 0 M a rt a i r a t■ t i i Yi' Y i i■ u t r a l i 4 M R r f*# 4/ 4 t# M Y rr ARTICLEIV PURCHASE AND S AL }itai■is■i■r■Ii4ta}sM 444f R44 lose* R■iYrtY6ifas 1411Mi if6■■s■i■#t4i li 4#44 r■Rr#i1 *VAN plop io#iJti 4.1 Rights to the Landfill Gas and Environmental Attributes■ ar,iiYtaiarRM4444 s■*FYFi rrMirrrtrirrr Ma 4F2 Royalty Payment and Semi -Annual Statement..}r}a■ta M be wFS■# M1 r1r i1i i#r4rr!■#■aiW#Ref rRea rr#f1#ii rt 4 Delivery Fount, Title/Risk of Loss, *Fia i*i triiirr Rl Ra4}r*R4*M#i tri}IMri*fM*i4rRa*Milarrsi Wr■w■■ 1 444■ M 1r■Ii s r a a. Credits/Benefits .R�/ am* e y Developer.... .. i' ad s a a■ i a i t 4 r r■■■■ s a u 4 a R 7 4 4 s 4 i r r■ i i see R f y* f t R i' r i y■ i i' }}�* M# R R * i MonetizingEnvironmental Attributes. M r r■# s i f i 4 i i* a# a box M Newsom, f a a, t s■ s t i a i 4### R R f M f ito** o t* w* M*■ i *me s■ 4.6 Specifications; Right to FlareGas■■..ii#Yaay■■aaM*i4aatYaFYaaJYiai}Y#has MFF#iisi M■i■■#■ ra Y\ M 4iMi a*frry■*i*Fr ARTICLEVMEASUREMENT .......... 10 M t* art k r a t r# 1 1 i b 44 a* R r a M M 4 r i s J 4 M J* F t t i f r* a i i s I. i i; Y i i i i 4 r r■ a t Am 4.i h f 4 M F 4 f#■ i i 6 t t** i i i*+ a a a■ 4 Metering and Measurement . a■iiMFiisrrii#FYFaaJ4a■M4a44arsa f i■i'*•*a M4 rarata#iiY*err.■aR4■ia■Y4+..■araaaa■*•*w R%7 5.2 City't r� to Install Meters . ■■iRa4a4aaFaM4RaYiiMiYY#YM*Fiaaiiir'W.ai.#MRrir M7►1.t**MM4*4 M#a iWove-PI 4009a■■s■■1 5.3 Mete*ing Equipment Standards ....................................... d oo i s toas.a#i***oat 4 sit iaa 5.4 System Conditions . .. *FM4+t#aWi#jf■■rit#M rr4 1a41■14i r0G&41 Mai■ii Maa■a■it it tat4MM#ra 44##iM#*ir444#■so, /frF4ia as Wa*wsM*F * Specific Metering ing i..................... a ............................................................... # a a i i y i ARTICLEV 1 GAS UPGRADE SYSTEM ................... 00116A kid 16sr4*0 JRNO RRM 4M Mai*MFi#irfa milli tFr FFaa i el t#*fi sod M■ 4r41$4" 000 J 6.1 Right to Construct 4 and O f✓ rate.#*.*ri4t*i■Ys■ia■i■rrr*siFRr#iii■a#ai.....$gYi i q q a aY44#r44.1$OF$ 1 i 41ia YY 14 r 1414A ■ 2 in-;ts }};,{ Approvals. .! 4 s. a.*. i i. Y* i i# i i 4,0616 F i 4 M■ i+ 4+ 4 bud ROEM *a* most t i so* oldi a a r t s i a i 4* Y f► 4 r w# f a t s * a■ a r 48 6.3 Design and CV actio of the GasUpgradeSystem, MiM#1MMiMrY S#MMM�liiiL ii fr aY Mii*iM a*t■aa■ai ■aI 6.4 Developer'sMaintenance and Operationthe Gas Upgrade System ............ $401-401669 6.5 Gars Upgrade System Expansion..... 0 4 6 a a a 1 4 6 1 0 0 M 1 0 4 41 a 0 6 a I I a a * a a F q a q P 4 4k 9 a I I 1 0 f 4 4 0 M 1� V IL a * 9 1P a 9 B 0. 1 0 0 F 4 M I r I a I P I 1h q 9 9 ARTICLE V 11 SITE LEASE, SUBA SE S , AN�� 1��■r�■■rrr�f��*M��Mrr*rtlrraRriarMt�aMarMa��arMiMr 7.1 Site Lease ....................................................... I Y a F M# 4 M 0 r M M r I M R f M 1 1*# Y 1 M# 1■ f r a i-1 i* 1 i* F+ i s w r 1 Y r r r i M r F M M Y f 7.2 S ub le a s e s r M i r r r* f F### Q F■ 1 rt rt* Y 4 rt i 4 Y F M Y Y R M Y 4 M M k f 4* w# 1 44 i 1 4 Y# Y Y F i rt 4** Y M i 4 i rt M Y■ M F r 41 F R M M 4 44 4 1 M 1*■* w♦ F r F r i i# M w 41 1 1 F M# r M## 4# R* M 10 a Easements .Y+1irrMw#rFrM####Iar*rt4■r4#4f•rr i a#t.aaaa■t■}rai#1*41l rrM i4rr i0YiYrtY4*r■a■■ar*st* i* Y** i.■ a a a r a■ a■* a*. M*rt■ 61*01' ARTICLE V111 GENERAL OBLIGATIONS AND C V NANTS■M.t.■■.*...i■***■a.■.......#.4iirMr.y..MrrF * Non -Dedication Facilities, ♦*i#iiM/rrFr41#Ri Yr#i##rr4err#r*r iii#*4F*rir#i r r rtar aatr■ a a r■ s r* a i r r M' i/rF##F#M FFM 10 8.2 Operations Yffie Landfill. a 4 a} 4 i r r r 4 F R r► 4# 4 4 4# i i k #Mir # Y#### F i* r■ Y i s r# Y# y i** Y Y i i r a r i a■ i■■ a** t* a Mai ■ r r■■ i i i* i■ i s i V 8.3 Leachate and Condensate; t . r WRste. Mia#4MMa■#i■arr4*Fiyrr RM r#ri4#M#Rr Mri Fi#iriiiM#RM Rrlr Ftir*t rarr � .4 Air Emission Vimiti ng. YiriiiYYSMisilrr M■■iaa■a■i.a■Yr ri r■rYY*MI#4*#irFsa FM r44wMa■}.r#4 Mr Fi#r i#r*t 1#ri Yi r#i■aI r Taxes..ri# 1 F i F 1 0 1 1 M r 0 0 114w0*0441140Y660i 04 YY 1 Fi*rrwwMM i I F#.# 1 1 M r Y iMrt*4444#rMY#4rRF■.w■4#i.t■ a w w i 6111 a r# F w*Fw r F r t w. w #Ya 6 w a 0 8. JL..+L sp e cti n of Books anct Records; .R .r. L/oLi_ tang....... # M' i i M Y i# W rt F M i►! rt i## r r r a r i# M M■ i**** M Y i t# M i t#* q .0 P 8.7 C mmunic ty o ns.►a;r*rF#arrtris■ir■ri*iMii...wi.■FFrriiMMrMMrM4rrt#4M4#i FFFrirt1'0449#94 a604440 fY a#rsrt Mii■iirrr i rrtdra 1 2 8.8 No Adverse EILandfill Modifications .iii*aiYir■Yrt*iirirt 4*M4FF#R r FM iri 40*M14*0 F e t i**r YY 0*0*V1h 1 0 Fa#i Y#i*rtY 12 49 Insurance MFirrir*i►7ri.i4Yiriir0010F#Y#i#..■1.YiYiYYYrY.4i►YY4#MMsi7♦isr■za■4a.a601*aaiMF#r4###rF.FwiMMrwrr4ii1 1-4 w4*4.. 12 ARTICLE IX REPRESENTATIONS AND WARRANTIES J4 E} ■ i# F M M/....4: F a M f R} 41#6f a Y i i i# R R r R# 4 r F F 1 r i i 4 rt i Y 4 F r i r Y# 1 2 Developer 9 i1 to er Representations. Rwrzisiaar■a■**irr#MiRMRMM#!MrRrM#7r7rtMMM#M}#MrMMFY#MMMrFMrt7FM#■■■ea**#**■*rfMFr*■■ City fy'�7 *�F fr�l�ir1� r2 City Representations.•*........i.iyiiiiM:i444iYYrtiY■isa4ra4awt■aai,#aarrr#F*F#r#4M4rr#rw#1RF■F.#*.kM4M4#44*rir.#■r1 9.3 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES . .... ARTICLE X DEFAULT,REMEDIE S AND TERMINATIONEVENTS ........ 4 4 9 % F# F i i M 10 4 i# M■r fM#r Rr P* 15 10.1 Event of Default. M#fri rr#Y MiMFR■Ma■1 ea■0h 6.66 ►r■■i 61 rr MR#t■4#M'a4 14Mr*■M}FitirM#4i RM Rr M4iM4F?7waa#4MFM +rrrrf rr Mi4 Y#r14 .2 City' Remedies a a*M4YRMaFiRiriRFrirYi■•11■ I.tY66.1661606a-j1 060a4.■■a.#6.66.666,■MirirtRrtMiMMM■■■iaialAF47Miir/twM0010#0rr■ 5 10.3 Developer's Remedies. r■a■■■a■.■Mrs....." r08Mr4w#rFrsrrrF11446-6;Y4400i0►sii+*ir►�as4.wFYas4aM�r�Mr�rFrMF4■r#��4* y. ■ Termination ion forConvenience Yi4iMii.....MMM■ri.........■iF**i##F*Mrr M#■#r#t#1##MrtF#Mi M#rFYrM#.r#iir#si rtr#Mi* � 10.5 Actions Upon n Expiration I +k r JL J4 J. J.,L nati n. ............................. ................. ► # * ► i i i V * * V * s 4 i ARTICLE XT INDEMNIFICATION .AND LIMITATION ON LIABILITY...#■.M■rM.Y*4#4M.i#*r...*■ra.a1 11.1 Indemnification# .............................. s i ... t F i r M r i a t s i t.■* r Y*.# Y Y r i. t. r t t►■ r r a* M r r/ r. r a M r■ M r t F i# Y M r* M A f r r* F r 1 ,+. 1.2 Limitation on Liability ......... mio.-I IS-1 000.004.1.0 rM rr it Ri rM M M#f M sip Mii# Frfa rR## I M*Yi 1i6.,:000 4iM rM *man ■.a■a■w■R*#*Frr1 11.3 W er of Damages; Non -Reliance . iRr.#i4#M#irirr#rir#FFM#if 7Fri 0040 14P#04F# M It M i ii iYY M 4-0&1 Yai is F4a%a■i■41 11.4 Non -Recourse .Yrt41M*Frrrrr..M1[44iM#Y.ii■#♦MMIai..M1r1#!'4#r#M1•M1r■t.**10Mw1•r#F11F**1#F*4a010F1iiiFr0AY414rt06F44F#er 1 ARTICLE X11 LENDERS AN LENDERS RIGHTS ............................ # M## i i i i a M#! M if i 1 1 r a■. F 1 R 10 r r■ 1 rt 1 1 R i r i 19 12.1 Lenders. .. 1■ i i■■. a F R# M.#■ r i 4 i##+ M 4 a a. 4 Y F 4 R i.#*► a} i r Y r Y F t r r rt r r r M S *I bon# r F i i rt to w r■*■ 4* i f■■ on i M 6.6 i i 00 **1 M F F R 4 r moot r Y i F F i# F r■ 19 yiF ■ . i li H 2 s2 Lender er � F4J hts .f .* i 4 r## i# i i f/!# 1 f r 4 4 M r 4 4 f 1.4 a s a i a r a I i r 0 r r 0 IF4* I% 0 4 4* 1/ f 0. it 0. 4 0 1 i i M 1 1# a f 1.0 4 i s i r N i s a 4 i r r a 0 a r r s 0 r a r r 9 a 0 i 0 0 9 r 1 *11 �I1 12.3 Successor /� (� or Obligations ations■■asasarrarrsaar■asss■.ifraaaafMaa#MaMr*ar•■rrrwwrss■aasaasaaa■sa MM.................aa.M#i..1 12.4 Copies of Notices ■............M.iai.iiriia*.far.*iilMi...*ira.#..a....a.irr.............M►Rii!...d..i#tf M#fMMRFfi#MM1 2.5 No Termination .iriiff*Mi4iMMi41MMMfi#/4i**i►##ii*iMr#MMMa f#at##MiII#ti 1.rr*F64a##664.4 7##*►#i ii S M iM 46 Mw a#a tri 0►*4140a 1.2 ARTICLE XIII FORCE MA4EURE i i r W i w M M i* M i fi't M i i a i i lM'iM i t i i i t a i i i i f i i r a i i M i i 0 W# i r f a a a a r r i a i s a i Y y a i M i i r i# i a i F n* M i i i r a P. r r,*#i20' ARTICLE XTV MISCE ANk./S i i# M!. wMir#} r i r# M w M.a i a i i a M M r i. M F r M. M} i* t s. r M s i W.i a i W W i i# M M i# r. i M r w 11' a 1. 6- t a a# r r a 0 1 i! M' 1 M f a M r i 1 2 A+ Amendment4 M a i a r i r#.a t t i i* M f r r* wj i i r# r i i i#+ai r r W Y i i i f s a a i i i i f s a! i* i i w i. r r M# s M r r r a i a i r i a i i* M} i i i* a W Y } i i' M i i i i i i ri' i M*.20 Goerr. n t.Law; Jurisdiction ......... f i i i 1 i t i r f i i i r f M 4 1 w i Y f f M i# M f r r 0 0 b i l w i i# i i i i* M i i r i* r l t t M i; r i r i# i t M F i}#} tq2 DisputeResolution.... , i tii M a M iii M M ri lr rf Fii rl }rf#i 0 }i ia}aii ►f 40 F r i r ri M Mi Jia i tM 0 *l wi 1 ri ii Mi i 00 04 ri M 61i if iR}i 1a ►4i 12 Attorneys' Fees. i#!'r#MMrrsi......aMr4}iliri M*MiMIr##M#M rf7 Mf i#r#* r f i i a i i M r M 1 1 M r M r frf#flMr i i i f M' r F}# 4p M* i r 4 r n i W. i i i, i• s i ri 1 Notices. i r r 7* r#} i r!'i r i r i i i f i a i i ir'f4 i W i t i► i i i i M i M 3 r. r f}..$$* 0** r i i r s i# a i 10 i y a i r M r i f r r r f a# f 06 i i ► i i i t 10 a I a s h.6 e& 6 i S Y W i i f Y f ti21 Headings . tirar}a&19*0f►*i*i*ir}iMini}*!iiMi#rlia#iifrtifri#Ffi*iit6t0f641f11iiiiiii*iiYryiiaa,oa &a&&*,Pirirr#i 22 No Waiver. iffiirf ii rr ri i r#*rf ii Mi}ii#Mi Mi1f!1 fi 14 ff a 4 w#rii t i i a 0*iiii}iM}0Mi7*MM#ti6irGa Mi }iiii rr r■##ri#M#}r i i#i}i*rr M#i Facsimile. Signatures; Counterpatts, 9i00n0a001w40iri#ofata4Mrt16ia►ia41a6}*M4#r04w*a#isir1r00r44141a}0t0022 Ser it tyr4.ii.}a.#r.!ii..rFfafrM#i*rffr.#i.r4i##i 110a1.irMi ifi4Mi i 141 1. 1. rs 0rM&aiiiMr010114f#ra4 ri rwM i!i 7# M' f i## f f% r f f 422 EntireAgreement F s* i M f..F f i fr F 4. i M r M r r i r* r# 0 s} i i i i s FM'f r} f IF fF r r* i 7 f* f!# i i# i# R M 1 10 i i r i M 7 4 i r r r 0 f r#* M' M i r 4 r s a i a f n* F r M n r22 Subcontracting; Assignment . .... M i n i..* f i# ............ 1 a a s a M i i i i i f i F\ f i a* r f r s w w i i r% a f boo i r% a s r a s. i M i .inksi .....22 FurtherAssurances... 0 b & Ar 6 1 a 4 * 6 wi YiMa*i t Mafiaa#M.sMa MM##sM#�a Mi#t...fi irir Mai iaia•rM#i #ra Mi Ma.a■i►##ii#lrif#aaMrtaM�. NoL i; hit-/f .6 f r i f 1 r* i t* i i 1 r r 10 i i i 1 r r! 1 F} i 1 f f 1 * i i 1 r r* r i i i i i M 1 }} i i i i f f i i M f 1 r i M * i i i t i* 1 i i i ► M 1 i i t# s i M i r} r M a i i i M# r r i## Confidentiall o m o. ali latwa f 1 i f w .4V 1.0 1. f#} 1 F IF a a a 1 i i f i a# a M 0*, ,.14.1 4.}4 Ri#i*1}4 aaa}it r i f f■anr► a a a aMi to t as a i a a23 Thi-r artyBeneficiaries . srFrrFMarMeM■aReawwa■■-1wtiwwFs0MfsMrrrFMaq*■raw.,to*rfrMwwF4,4. v41,PoswwirrrrrairMww4w. r Publicity city and Corporate Identity. ri i t i W. i 4}fit 4M. s* $9 949 s s s s a 00 a* rs I rif#r is Mii 6t0r*M#0 M rM r7i#M M sisla 01 sai*W2 Tax Benefits and hVJ. Incentives ............... o ................. 1sr IF 07 a i# f M I. M f s 0 s i M i rii M* a# M# s ff fR M' M' f r 4'2 EssentialTerms.., a i n# i t M i# i r► i i* s i s i i r i# i t s i f i* c i r r i# i i a# i' ► i f i i l r i► i f# r i d i rt. i.1 a s I r a n i s t t a# W i} f r i t s r l i s i a 0 s s a a i i a ►2 EXS Exhibit A - Deseription of the a .dll x - Project Milestones Exhibit C - L obi ions Exhibit D -Insurance Exhibit - Site Lease Exhibit - Easements Exhibit G - Division of Responsibilities Exhibit H - Metering Measurement Exhibit I - Landfill Gas Specifications w it J - Condensate Delivery Point ra # PRIVILEGED & CONFIDENTIAL OR DISCUSSION PURPOSES ONLY 0C1 Draft Janiaary 17, 2023 GAS SALE AND PURCHASE AGREME, N FIRS GAS SALE, AND PURCHASE AGREEMENT (this `AAA. emc "), effective as of January _, 2023 (the "Effective Date"), is entered into between City of Beaumont �� '� , and 0 C1 Fuels USA Inc., a D el ware corporation ('D ovel' RE, CIALS A. City owns and operates a mwicipal solid waste disposal facility, located at 5895 Lafin Roach, Beamnont, Texas 77705 (defined below as the Landfill). City desires to grant Developer the exeiisie right to develop and install a system to convert biomass to Biogas at the. Landfill, including a landfill gas collection and management system at the Landfill, (collectively defamed below as the Coiieetio System). . C, City desifes to sell and D ve .oper desires to piirchase all Biogas oxtracted from the Landfill for the purpose of securing a long-term supply of fuel for processing the Landfill Gas into Renewable Natural Gas, using the Gas Upgrade System on or adjacent to the Landfill. D. The Project will create societal and environmental benefits, which include reduction of greenhouse gas emissions and reduotion in other air emissions resulting from operation of the landfifl NOW, ', THEREFORE, for good and valuable consideration., the receipt and sufficienoy o which is hereby acknowledged, and wishing to be legally bound, the parties agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION 1.1 Definitions. For purposes of this Agreement, , capitalized terms shall have the .earring specified or referred to ire EXHIBIT C. 1,2 Interp tation. In this Agreement, mess otherwise stated: (a) Any reference to an agreement or document (including those set foilh electronically on an inter et web site) or a portion or provision thereof shall e, construed as a. reference to the same as has been, or may be, amended, supplemented or othe Mse modified and in effect from time to time; (b) Any reference to Applicable Laws and to terms d fi.e in, and other i provisions of, Applicable Laws (including those sot forth electronically on an intemet web site) shall be references to the same or a successor to thesame) as has been, or may be, amended, supplemented or otheivise modified and in effect from time to time; (c) Any reference to a Person shall include that f erson's respective successors and permitted assigns; (d) Any reference to Governmental Authority dal construed as including a reference to any Govermnental .Authority succeeding to all or a portion of its futictlons and capacities; (e) Any reference to a particular Section or Schedule shall be a Yeference to the relevant Section of, or Schedule to, this .Agreement; W The words "herein," "hereafter,"' " reund f' and similar words shall be construed as a reference to this Agreement as a whole and not to any pa xticular portion or provision of fids Agreement; (g) Words in the singular may be interpreted as referring to the plural and vice versa, and woxds denoting natural persons may interpreted as referring o other types of Persons and vice versa; (h) Whenever this Agreement refers to a number of days, such, number shall refer to the number of calendar days unless Business Days are specified. .A requirement that a payment be made or an obligation bQ performed or a. requirement be satisfied) on or by a day that is not a Business Day shall be construed as a requirement that the payment be made or obligation be performed or requixement be satisfied) on or by the next following Business Day Mess otherwise stated; z Whenever the term "include," "includes" or "including"' is used herein, such term shall be deemcd to be followed by the words "'without limitation" and construed as being illustrative and inclusive of but not exba st -re or limited to the items that follow; and J) Reasonable operations shall mean that operations at the Landfill shall not be, i atenupted and access s to dirt pits shall not be blooked. City shall be the sole decider regarding .tenuption of operations. ARTICLE TERM 2.1 Term. The Term of this Agreement eo meri-ces on the Effective Date and, unless earlier terminated in whole or part as provided in this Agreement, continues and remains in fijfl force for twenty 2 years from and after the Commercial Operations Date t e " Initial 'e xW'); provided, so long as Developer is in material compliance with the terms and conditions of this Agreement and the Site Lease, Developer shall have the right to extend the terra of this Agreement for up to two additional poriods of five years (eaoh an "Extended Term", and together with the Wtial Term, the "Term") by providing written notice, to City no less thaa sixty days prior to the end of the then -applicable Term, upon the same terms and conditions as contained in this Agreement. 2,2 Due DiHizence Period, (a) Within tee. X o) Business Days after.. the Effective Date, City shall deliver to Developer any specific design parameters desired forge Collection System as well as celtain other site data, including existing Landfill permits, as -built or design liner giades and cross -sections, � 2 � waste vol-umes in place, waste types, availability of utility services'. and lcac ate volume data as well as other existing data and h-iformatio . related to the design and operation of the Landfill. (b) During the six-month period beginning upon. the Elective Date "Pue Diligence Period"), Developer shall assess the viability of the Collection Systems. and Gas Upgrade System, including to i evaluate requirements or emissions controls at the Landfill, ii evaluate whether there is adequate Biogas at the Landfill to support the Collection System and Gas Upgrade System, and Wperform engineering design, environmental, and other due diligence for the Collection System and Gas Upgrade System. At any time during the Duo Diligence Period, Developer shall have the unilateral right to terminate this Agreement if Developer determines that the Collection System or Gas Upgradu System will not be commercially viable. 2.3 No rther.. b i ate. If Developer terminates Us Agreement pursuant t Section. 2,.2, such termination . shall be without liability among the parties and -neither p .-ty shall have any further obligation to proceed under this Agreement. ARTICLE HI COLLE CTION SYSTE : DESIGN, INSTALLATION, AND OPERATION .1 DesiM. Developer shall have the exclusive might to finance, permit, design, co stmet, own and operate the Collection. System, and any expansion thereof, in compliance ce with all Applicable Laws. Developer will provide to City the specifications and engineering drawings for the Collection. System for City's review and approval which sail not be unreasonably withheld or delayed) prior to beginning any construction activities or obtam"m'g any permits for the Collection System. .2 Installation. Developer will coordinate with City and make c mmorcia l Treasonable effoits to install the Collection. System so as not to umeasonab y interfere with City's activities at the Landfill. Following the Effective Date, Developer and City shall negotiate in good faith an amendment to tl s Agreement o t uHg Project Milestones to be set forth on EXHIBIT with respect to the Collection System and Developer shall use commercially Yeasonable efforts to achieve such milestones in a timely rnanuer. City shall have the aright to inspect constt-action activities, and upon eon.st udio r complotion, conduct a final inspection of the Collection System. All Collection System faefflifies installed by Developer or its subcontractors shall be owned by Developer, 3.3 9peration and. Maintenance. Developer shall operate, and maintain the Collection System during the Term in compliance with all Applicable Laws, At its sole discretion, Developer has the right to subcontract any operation and maintenance obligations to a qualified t d- pm-ty operator. Developer will make commercially reasonable efforts to operate and maintain the Collection System so as not to unreasonably interfere with. City's activities at the Landfill. Without limiting the Foregoing, Developer shall agree to conduct activities as to minimize, to the extent practicable, inteiference with incoming waste loads, daily cover{ operations and alternate daily cover operations. Following the Effective Date, Developer and City shall negotiate in good faith. an amendment to this Agreement outlining tl ei ` respective responsibility for certain activities related to operation and maintenance of the Collection System to be included in EDIT G entitled "Division of Responsibilities," which is incorporated herein by reference, 3.4 City Review of Flans; Permits and Approvals. (a) but in any case, within ten (10) Business Days after Developer"s submission of the specifications, drawings, plans, and other information to City as contemplated under{ Section IL City shall inform Developer in writing of any comments or reasonable objeotions to the plans and.specifications. (b) At Developer's rst and expense, City shall reasonably cooperate with Developer in connection with any hea gs, proceedings or other procedures, and with the p 'epatat o . of any environmental impact reports or studies Yequired in connection with any permits'. a t op izatio r casements related to the installation, construction or expansion of, modification or addition to, or the operation, repair or maintenance of the Collection System. (c) City shall be responsible for o tah�i g and for paying all costs associated with initial and recurring permits required by any Governmental Authority with respect to the ownership and operation of the Landfill.. City shall, if legally required as Landfill owner, obtain . such permits as necessary to allow for the construction and/or operation of the Collection System. 3.5 Records, Developer and City Will maintain all records, mox toi g data, and other documentation�relating t this Agreement, including perinits for the Landfill and Collection System and all other documentation telatingto the operation of the Landfill and Collection. System, for a period of ten 1 years. Each party agrees to make available to the other copies of all envirom-nental information reports, environmentalenvirownental impact repoils, air impact assessment studies, onvixonmental applications filed, and other necessary available data in its possession relating to the Landfill or the Collection. System, which materials are reasonably necessmy for the other party to possess in, comection with this Agreement and shall be treated as Confidential Information as provided in this Agreement. 3.6 Qperations R Developer agrees to provide written or electronic repo-rts on a semi-annual or direct access to any electronde data recording associated with the Collection. System to City regarding the status of the Collection System, its output and any anticipated change therein. 3.7 Compliance. The Collection System, and any subsequent phases of the Col ection System, are befg constructed and operated voliantarily..A.s of the Effective Date, the Collection System or any part of the Collection System is not required to be eonstveted or operated by any current state or federal law. In the event Catty would like t use the Coltection System or any part thereof to comply with any future state or federal. law, City shall seek approval from Developer, which approval shall not be unreasonably withhold. City shall pay all costs associated with any upgrades or increase in costs associated with complying with such futme regulations, including any additional capital expenditmes or incremental increases to operational expenditures incurred by Developer in. assisting City with such compliance. 3,8 City . City shall have the sole duty, and Developer shall not have financial responsibility, for any maintenance, ie air, or ire- drill g for the Collection System as a result of damage caused by the action or inaction of the City or any �•d-party representing or acting on behalf of the City, and Developer shall not, under any circumstances, have responsibility to open, repair, or close the LandfiU cap, whether on a fmal or temporaiT basis, to complete any Developer e fired scope of survices under this Agreement. 3,9 fit 's Rights and Duties Regea �ding Operation of Collection System, During the `err of this Agreement, City shall, at its expense i provide unimpeded access twenty-Font(24) hours a day, seven 7) days a week to the Lmdfill aid the Collection System such that Developer is able to peiform all tasks required of it under this Agreement; R) reasonably cooperate with Developer in connection with the provisioning of the services, and installation and/or maintenance of the Collection System and related equipment; and ili notify Developer immediately of any damage, malfmotion, or change relating to the equipment to be maintained by Developers under this Agreement of which City becomos aware. 3.10 �_ of Inspection. City and its agents, and the representatives of any applicable regulatory authority, shall have the aright to enter upon the Site from time to time to examine the condition and use of the Collection. System and to inspect worIc in progress; .11 Oplion to Transfer Collection. S st m. At any time during the Tend., Developer shall have the option to transfer ownership of the Collection Systems. to City on an "as -is, where - is" basis and at a price equal to the tax depreciated value of tCollection Systems. AWCL IV PURCHASE AND SAL .1 Rights to the Landfill Gas and Enviromnental Attributes. City hereby grants and commits to Developer the exclusive right to evaluate, test, teat, process, develop, sell and use, or any one or more of the foregoing, one hundred percent 1 00% of all Biogas, produced or producible, and any and all Telated Environmental Attributes, from the Landfill during the Term of Us Agreement. The parties ael owl dge mat Developey is not obligated to collect or process any muumum quantity of Landfill Gas except as may be collected and processed by the Collection System and that meets the required specifications. During the Term, Developer hereby agrees to receive and purchase from City, and City agrees to provide to Developer, the Landfill bras. .2 al a went and Semi -dual Statement. (a) Payments, (i) In consideration for the Product, City shall receive a monetary payment •om Developer equal to the Royalty Payment. The obligation of Developer to pair the Royalty Payment shall apply during the Commercial Operations Period,, (ii) A separate "Fixed AssetFee" will be deducted -om the semi -qua payments made Rom Developer to Owner in respect of the. initial installation cost actually incurred by Developer in connection with the Collection Systems., estimated to be $75,000 annually and subject to annual Nation, but wbieh will in no ease exceed the Royalty Payment in any given year. (b) Semi -Annual Statement. Developer shall provide the Seer -Annua . Statement to City on or before the 3 Oth day Following i the end of each semi-annual period during the Commercial Operations Period or on the final day and i1 the final day of the Term, as applicable. In the evont of any Dispute regarding the content of a Semi -Annual al Statement, the pities agree to Provide any additional information reasonably requested and work in good faith to resolve such Dispute In accordance with Section 14.3. (c) Amount Py. . Any amounts payable by Developer to City shall be paid within thirty days followffig the delivery of the SMA-Annual Statement. Any amounts payable under this Agreement that are not timely paid as set forth In this Agreemeni shall bear Interest calculated from the date when due until such amounts are paid at one percent Mper annuru above the fluctuating prime rate of interest announced u l e . r by The Wald. Street Journal •om time to time as its reference rate. In no event shall the rate of interest charged exceed the maximum rate allowed by .Applicable Lave. 4.3 Delivery. Point; TitleMs _of Loss. Landfill Gas extracted from the Landfitl and wade available. to Developer pursuant to this Agreement shall be made available at the Delivery Point, Title to, and liability and the risk of loss for, Landfill Gas extracted from the Landfill and made available to Developer per.*scant to this Agreement and all associated Environmental A tirlbut s shall pass to and be absolutely vested in Developer after passing through. the Delivery Point. 4. Credit feneflts Retained by Develo-ver. .All Environmental Attributes and Incentives associated with the Landfill Gas produced and collected in the Collection System inure exclusively to Developer. City shall not retain or otherwise receive rights to any Tax, emission, e .�viro ruental, or other benefits or credits. City will not claim any of the Landfill Gas or Envirownental Attributes delivered or sold to Developer user this Agreement as its own or as part of Its own cai!bon inve .toi-y, carbon footprint, or other carbon statement or declaration. 4.5 MonetE6u Environmental Attributes. City shaU assist Developer with reasonable requests In full maximizing monetizationthe of and environmental credit generation on the nviroDme tal Attributes sold under this Agreement. Such. reasonable requests include., but are not limited to: a providing Developer and its agents, cou .tee. artles and consultants as well as Governmental Authorities with access to City"s propeity, the Site, and Developer's facilities pursuant to the provisions of this Agreement; and providing Developer with requested documentation and information a Clty's possession that is required by Applicable Law or requested by Go emme .tal Authorities to support registration, credit generation, maintenance o validity of, or use of the Enviromnental Attributes, including, without limitation, any attestations and registration materials to support environmental credit generation, including RIN and LCFS credit generation, and demonstrating complianee with the RFS Requirements. ts. City shall upon Developer's reasonable ro uest, execute such documents and tale such farthcr actions ftom time to time as may be necessary to i) facilitate the transfer of all rights, title and Interest in and to all Environmental Attributes to t ,e Developer; (H) allow Developer to validate, verify, or register r vino a ne .t l Attributes; or (iii) facilitate the, transfer of all rights, title, and interest in all Landfill Gas collected, captured or combusted by the Collection System. 4.6 Specifications.; Rht to Flare bras. Developer shall not be required to receive and process raw Landfill Gas not meefing.the agreed specifications set forth on.EXMBITL Developer is authorized by City, and Developer has the right to flare any Landfill Gas that does not meet agreed s eci cations in connection with Collection System operations. Developer is not obligated to City to pay a Royalty Payment on such flayed Landfill Gas. ARTICLE V AWASREME, N .l mete -and Measurement. Developer shall install and maintain the equipment necessary to measue the, btu value of both Landfill Gas collected in the Collection System and delivered by City to Developer at the Delivery Point as welt as the Renewable Natural Gas produced by the Gas Upgrade System. Measurements shall. be in MMtus ushig the components set forth in EXHIBIT H, provided and maintained at the sole cost and expense of Developer, with the specific metering devices being subject to the reasonable approval of City. .2 City's Option to Install Meters. ters. City may, at its option and expense, install and operate meters,, insftuments, and other.' equipment to {verify the accuracy of Developer's er' easuring equipment, but such equipment must not interferu materially with the operation of Developer's eloper's measuring equipment or the Gas Upgrade System. The check equipment installed by City, if any, is subject at all reasonable times to inspection or exammation by Developer, but the calibration and adjustment thereof may be perfonned only by employees or agents of City. Notwithstanding City's right to install its own cheel equipment, the measurement of the gas for the purposes of this Agreement will be performed orAy by Developer's measuring ing equipment. 5.3 Me en*na Eqwgment Standards. Developer, at its sole cost and expense, shall keep the metering equipment of Developer accurate and in repair, making a nunnnum of one test each six 6 months during the " eim. Each party shall have the right to have its representatives and agents present at any installing, Breading, cleaning, changing, repairing, suspecting, testing, calibrating, or adjusting done i ' connection with the metering equipment used for measuring Landfill Gas hereunder, Developer shall glare City at least three 3 Business Days advance notice of any such acti itles so that City may have its representative(s) present; provided, however, that if Developer gives such notice and a representative of City is not present at the titre specified, Developer may proceed. Vests to verify the accuracy of measurijag equipment shall be ex -formed by the manufacturer of the equipment, or other third party reasonably acceptable to City, and the result of each test shall continue to be used until the results of a subsequent test are know.. In addition, City may r request a special test of the metering equipment at any time. The expense of any such special test shall be bore by Developer only if the equipment is found to be inaccurate by more than two percent 2%)- other rise, such expense shall be borne by City. If. upon any test, the equipment its found to be inaccurate, by more than two percent 2% , natter readings shall be corrected for a period extending back to the time such. inaccuracy first c r ed, if that time can be ascertained. If that time is not ascertainable, corrections shall be oracle for one half of the elapsed time since a previous meter test verified et t within two percent % accuracy. No adjustment to any payments will be made with respect to meter etTors of two percent 2 r less. If any equipment requires replacement, Developer shall replace it promptly with a similar or more accurate type of equipment, subject to City's reasonable approval, which shall not be um aso .ably withheld, conditioned, or delayed 5,4 System Conditions, The parties recognize that moisture, Pressure, or other conditions within the system may prevent available metering equipment from maintainingproper w 7 � calibrations. If such conditions persist, the partieswill attempt to determinemutual agreement a protocol for estimating Landfill Gas deliveries using such data is available. If the parties cannot so mutually agree, they will appoint a mutually acceptable third - -iy consultant and will share equally the cost of soh consultant and will accept the recommendations of such consultant s fmal and non -appealable M. estimating Landfill Gas deliveries thereafter. 5.5 Specific Me Cmems . For per. -poses offs Agreement, atmospheric pressure is assumed, mess of ei vise established by the standard gas measurement ent rocedures in the industry, to be 14.74 psla. In addition, the specific gravity and the gross heating value of the gas flowing through the meter may be detormine "on -site" sampling and laboratory analysis or by any other method that is of standard hid-ustry practice. The unit of neasuement is one cubic root at a pressure base of 14.74 Asia and at a temperatue lase of sixty degrees Faln-enheit. Motu.• measurements will be computed by Developer into such units in accordance with the ideal gas laws for volume variations due to metered pressure and corrected for deviation -using average values of recorded specific gravity and flowing temperatoxe.. ARTICLE VI GAS UPGRADE SYSTEM 6.1 Right to Construct and Operate. City hereby giants to Developer, and Developer shall have, the exclusive right (but not the obligation), to design, develop, construet, own and operate the bras Upgrade System on the propefty of City, including by contracting vAtb a t ird- pmty to own and operate the Gas Upgrade System, as more particularly described in the Site Lease and in accordance with the provisions of this ARTICLE VI.Any decision to consti-act or continue operating the Gas Upgrade System will be in Developer" s sole and absolute discretion. .2 Permits and Appiovals. It shall be Developer's responsibility, at its sole cost and expense, to cause all necessary en iromnental impact studies, statements or reports, zoning and land use approvals, permits, licenses and utilities to be obtained for the instaUation and construction of the Gas Upgrade System in compliance with. all Applicable Laws. Developer shall provide, or cause to be provided, City with a copy of related applications or filings with Go vemmental. Authorities before filing such documents and City shall have ten l) Business Days to provide comments, which Developer shall consider in good Faith.. At all tines during the Term, Developer shall, at its sole cost and expense, cause to be obtained and maintained in effect all permits and a thori ations required in connection with the installation, construction, expwisicn, modification or addition to, or the operation, repair or maintenance, of the Gas Upgrade System, and Developer shall ensure compliance of the operation and maintenance of the bras Upgrade System with all Applicable Laws. City shall cooperate reasonably with Developer's efforts in connection with Its obligations in this Section 6.2. Each party agrees to make available to the other copies of all environmental information reports, enviro=ental impact reports, air impact assessment studies, environmental applications filed and other necessary available data in such paity's possession relating to the Landfill, the Collection System or the Gas Upgrade System, which materials are reasonably necessal r for the other party to possess in connection with this .greemont and such. information shall be t eatcd as Confidential Information as provided in this Agreement. � 8 � 6.3 Design. and Construction of the bras U-made System. Developer shatl b responsible for the design, construction, and operation of the Gas Upgrade System on the Site. Prior to the commencement of any co . tr ctlo ., Developer shall, at its sole cost and expense, engage a qualified engineer to prepare plans and specifications in sufficient detail to show the design., character, and appearance of the Gas Upgrade System. Such plans and specifications shall consider and comply with all Applicable Laws. Based on such ply and spec flcatlons, Developer and City shall negotiate in good faith an amendment to this Agreement t o tHw`ng ProjeGt Mile to .es to be set forth on EXHIBIT B with respect to the Gas Upgrade System. and Developer shall use commercially reasonable efforts to achieve such milestones in a timely manner. Until the Commercial operations Date, Developer shall report to City monthly on the status of the construction of tie Gas Upgrade System and the progress of Developer towards completion o each Pro cot Milestone. All # rletuy date., drawings, plans, specifications and reports developed by Developor and related to the Gas Upgrade System will rcmain the irate lecual. property of Developer. Developer shall provide City with copies of allpen-nits, licenses or approvals 'elating to the Gas Upgrade System and planned busies operations as of the Coimnerelal operations Date. Developer has the right to subcontract any obligation under ARTICLE VI to a tMrd party. . e relo ear's Maintenance and Operation of the Gas Upgade System. Developer shall cause the Gas Upgrade System and the Site to be maintained and operated at all. times In good working order and a reasonably neat and clew condition, ordinmy wear and tear excepted, in conformity with Applicable Laws. Developer shall not allow operation of the Gas Upgrade System to have a m.at rl al adverse impact on the Landfill. 6.5 Gas U Fade System. Bxpansion. The Developer has the right to inaease the design capacity, or of .ervise modify the Gas Upgrade System, to accommodate the delivery and rase o additional volumes of Landfill Gas, provided any modification of the Gas Upgrade System. -remains within tlae footprint of the original Site Leaset ARTICLE VI SITE LF ASE, SUBLE ASES AND E ASEMENTS 7.1 Site lease. In order to facilitate Developer's performance oobligations its hereunder, the parties agree that a Site Lease is necessary for the Project. Following the ere tlo of this Agreement, the City and Developer promptly and in good faith s afl negotiate, execute and deliver the Site Lease on customary terms and in form and substance reasonably satisfactory to each. of City and Developer, to be attached hereto as EXHIBIT E. During the Tenn, Developer will lease the Site from City. Developer shall pay City rent In the amount of One and No/100 Dollars 1.,00 per year for each calendar year o • partial year during the Term, payable on o • before each December 3 1st during the Term, The parties hereto contemplate that this Site Lease should not and shall not be filed for record, but in lieu thereof, ithin sixty 6) days after* the Effective Date parties shall execute a memorandum of Site Lease to be recorded `or the purpose of g* ing record. otico o the appropriate provisions o the Site Lease. Any improvement placed upon the Collection System by Developer, as well as fixtures and ai lcles of personal property attached to or used In connection with the Site Lease, shall not become the property of City. Developer also has the right, In its discretion, to sublease all or a poi ion of the Site to a third party for the purpose * ose of constructing, installing and operating the Collection System and/or bras Upgrade Systems. City shall iio ido unhindered rights of access to, and egress ftom, an area on which the roj eot will be installed. 7,2 Subleases, Developer is authorized to sublease to one or more entitles (each a "S blessec") ceilal . of the rights and benefits granted Developer under this Agreement for the purpose of enabling the Sublessee to install equipment as such entity may require to fakck and use Renewable Natural Gas purchased -om Developer. 7.3 Ease ae .ts. In order to facilitate the installation of a lateral pipeline and interconnection facilities to enable transportation of the Renewable Natural Gas, City agrees to giant to Developer, at no charge, ase .e is on customary terms and form and substance reasonably satisfactor-y to each of City and Developer, to be attached hereto as EXHIBIT F, over, across and under the Landfill for purposes of ingress and ogress, utilities access, and replacement of the pipeline. ARTICLE VH1 GENES OBLIGATIONS AND COVENANTS .1 Non -Dedication of Facilities, Unless o heivise required by Applicable Law, neither party shall dedicate any part of any facility owned or operated by it at or relating to the Lando to the, public generally and indiscri ately, for the exercise of a public ftanchise, or in the exercise of a public utility fanc to . .2 erations at the Landfill. (a) Subject to Section 4.6 (which priority of operations shall permit City to periodically operate any flare(s) to veffy such remain operational or In ready -mode), City agrees that it will not flare any Landfill Gas that the Gas Upgrade System can use for the generation of Renewable Nate. -al Gas, (b) No Hazardous Waste, City covenants that, during the Term, i no waste will be accepted for disposal at the Landfill that is not in accordance with Applicable Laws, and (R) no application or petition will be made for a RCRA subtitle C Permit for the Landfill or any portion thereof. (c) Access Road. City shall give twelve 12) mouths' prior written notice before opening operations in cells 4 and 5 of the Landfill. Pdor to City beginng operations in cells and 5, Developer sMl construct an alternative access road to allow access to the Proi ect that will not interfere with ao ire Landfill operations, subject to prior approval of City. 8.3 Leachate and Condensate; Other Waste, (a) may use, at no additional cost, the City Disposal System for the disposal of Leachate or Condensate resulting from the operation of the Collection. System or produced at the Gas Upgrade System, City shall, in accordance with all Applicable Laws, deceive .d combine any such Leachate. or Condensate -o . Developer with Cit is lea hate for disposal, Develop or shall deliver any such Condensate to the point shown In EXHIBIT 1, provided, that City shall provide all .ec ssm-y and convenient easements for Developor to install any necessary pipelines from its facilities to such location. City shall also, to the extent permitted under• all Applicable Laws, accept ftom Developer for disposal, at no additional cost, all refuse and other solid waste produced i. connection with the operation of the Collection System and Gas Upgrade System. (b) Developer shall use cormnercially reasonable effoils to ensure that there is no spillage or unintended discharge of Leachate and Condensate into the environment roan the Collection System and Gas Upgrade Systcm or any pipeline or other mechanism ca rym* g Leachate and Condensate •om the Collection System and Gas Upgrade System to the City Disposal System or any other disposal system, and that all pipelines and other equipmont used by Developer for the storage, tra .spoitation, or disposal of Leachate and Condensate resulting t-om the operation of the Collection System or produced at the Gas Upgrade System are oporated and maintained in compliance with all Applicable Laws, Air Emission Permitting. Both parties agree that they will not voluntarily take tho position that the activities of City and Developer at the Landfill should be treated as a. combined or single source. In addition to any other right or remedy of the parties, if any Governmental Authority, pursuant to its application or interpretation of any Environmental Laws or otherwise, is success u1 in asserting the position that activities of City and Developer at the Landfill will he treated as a combined or single source for purposes of air permitting of air a ru`ssion., the parties, in their discretion, may attempt to renegotiate i t good faith, and for a specified time, the terms and conditions of Us Agreement to account for the increased burden of such regulatoq a ivity on the parties while maintaining, as closely as possible, the legal and economic principles and allocations set forth in this Agreement prior to any such amendment. Should Cit 's Landfill become subject to more stringent air emissions regulations following the Effective Date, City shall be solely responsible for capital expenditures and the incremental operational expenditures related to any expansion of the Coiieoti n System or other investment required by such change in law. 8.5 Taxes. All Taxes now or hereafter imposed upon the production, severance, gathering, sale, or de ive -y of Landfill Gas prior to the Delivery Point shall be paid by City. All Taxes now or hereafter imposed upon the production, severance, gatbering, sale, or delivery Landfill Gas at and following the Delivery point shah be paid by Developer, In addition, Developer shall be solely responsible for all `Faxes or other fees, costs, or expenses attributable. to the Gas Upgrade System. F 8.6 Inspection of Books and Records- A.ccontill , Each party shall have the right t inspect, audit, copy and verify the books, charts and records of the other party pei ai ing to the operations and the transactions that are the subject matter of this Agreement, at the office of the other pm-ty where such records are maintained, ding normal business hours upon fire (5) Business Days' advance written notice. Each party agrees to keep its hooks and ecorcis of account so pex ah'g to this Agreement in accordance with generally accepted accounting principles and practices in the industry. If either pasty finds at any time within two 2 years der the date of any payment made hereunder ' that these has been an overpayment or underpayment to City or Developer, the party Ending the error shall promptly notify the other patty in writing detailing the amount and explanation of the error. In the event of an underpayment to City, Developer shad pay the amount due within fifteen l 5 days after the receipt of the hill correcting such error, with i tere tin the manner provided i 8ect n.. .2 of this A.gtee x ent applied from the date any such 11- payment should have been made. In the event of an overpayment to City, Developer may only offset such overpayment against future payments due to City hereunder, undess the Agreement has terminated, or there will not be sufficient future payments against which such overpayments may be offset, In which case, City shall pay the amount due to Developer eloper within fifteen (15) days after receipt of the bill correcting the error. . Communications. The paties agree to hold direct communications between employees, agents, or other representatives at the Landfill, Collection. System, mid the Gas Upgrade System on at least a. quarterly basis to diseussDeveloper's reports, projected operations, and the Gas Upgrade Systems. capacity, City's current and projected operations at the Landfill, and the general quality and quantity of Landfill Gas. 8.8 No Adverse a l Modifications; City skull not install, or allow to be M' stall d, any systems or devices at the Landfilt or make any physical modifications to the Landfill that would decrease the amount of Landfill bras. During the Term, City will not accept waste for disposal at the Landfill that is classified as hazardous or is not otherwise in accordance with Environmental Laws. .9 Insurance. Developer shall, at Its own expense, purchase, maintain and keep in force during the Term of this Agreement such insurance as set fort. o . XHf fT D. Parties acknowledge that City is self -insured, and can, at its own discretion, seek additional insurance; but same is not required under this Agreement. ARTICLE IX REPRESENTATIONS AND WARRANTIES 9.1 Developer e-oesentatio . Developer hereby represents and warrants to City a of the Effective ate as follows a Existence. Developer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and is qualified to do business in the State of Texas. Developer has the power and lawH authority to enter into and perform Its obligations under this Agreement and any other documents required by this Agreement to be delivered by Developer. (b) Authofization. The execution, delivery, and performance by Developer of and under this Agreement and any related agreements -have been duly authorized by all necessmy corporate action can its behalf, and coo not and will not violate, any provision of its oram*atio . l documents or result in a material breach of or constitute a material default under any agreement, indenture, or lust ument of which it is a party or by which it or its properties may he found or affected. (C) Lid ion. There are no actions, suits, or proceedings pending or, to the best of Developer'sknowledge, threatened against Developer or miy of its properties before any court or governmental depm1me .t, commission, board, bureau, agency, or instrumentality that, if determined adversely to it, would have a material adverse effect on the transactions contemplated by this Agrecment. l P Execution. Developer has duly executed and delivered this Agreemont, and (assuming due autho i atio ., execution and deliveq by City) this Agreement constitutes a legal, valid and binding obligation of Developer enforeeable agai mt Developer* in accordance with its WIMS. .2 City RMresentations. City hereby represents and warrants to Developer as of the Effective Date as Follows: (a) Existence. City is the go ernm* g authority of the City of Beaumont situated in Jefferson County, Texas, a `texas incorporated municipality consisting of a Council-Man,ager Government. City has the power and lawful authority to enter into and or its obligations nd r this Agreement and any other documents required by this Agreement to be delivered b city. (b) Authorization. The execution, delivery, and performance by City of and under this Agreement and any related agreements have been duly authorized by all necessary corporate action on its behalf, and do not and will not violate any provision of its organizational documents or result in a material breach of or constitute a material default under any agreement, indentme, or instrument of which it is a ply or by which it or its propeities may be bound or affected. (e) Litigation. There are o actions, suits, or proceedings pending or, to the best of Ci 's knowledge, tb re tend against City or any of its properties before any court or governmental de attment, concession, board, bureau, agency, or instiuentality that, i determined adversely to City, would have a material adverse effect on the transactions contemplated by this Agreement. (d) Execution. City has duly executed and delivered this Agreement, and (assumffig due authorization, execution and delivery by Developer)this Agreement constitutes a legal, valid, and binding obligation of City enforceable against City . accordance with its terms. (e) Title to Landfill Gas. City represents and warrants that it has good and marketable title and processing rights to the Biogas in the Landfill, -ee and clear of any and all liens, encumbrances, and claims, and that City has the exclusive right and lawfal authority to deliver sam r Mor to the Effective Date, City has not sold, trans orred or made available for use by any other Person any Biogas to be collected, captured, combsted, or created pursuant to this Agreement. (f) Environmental Attributes. City represents and r a -rants that It has no previously sold, transferred, or e au -.fitted to sell or transfer the Environmental Attributes of the Togas to be wade available to Developer under this Agreement to any other party. City represents and warrants that the E . i #ow e t l Attributes are valid, represent Biogas produced at the Landfill, are eligible to generate RINs and LCFS Credits when upgraded to RNG and used as a transportation fuel. Upon each delivery of Biogas, City makes the additional representations and warranties as it concems the transfer of Environmental Attributes to Developer under this Agreement: i all gas delivered to Developer was someed from the Landfill and meets the demotion of Biogas; ii City has not encumbered, or ot.eivise agreed with any other party to prevent the fattwe creation or sale of, the Environmental Attributes to be sold to Developer; (iii) City has not sold or agreed to sell or otheivise transferred the Environmental Attributes associated with the Biogas to be sold to Developer to any party other than Developer; all raw Biogas and associated Enviromnental Attributes sold under this Agreement are eligible for RIN and LCFS credit gc eration based upon the -ales and regulations in place as of the Effective Date; City has not claimed, and agrees that it will not hereafter claim, an .horn tal Attributes, "renewable gas", "green gas" or similar attributes of te Landfill or Biogas to be sold to Developer ,as belonging or attributable to City, to the LandfAl or the Landfill's production equipment; and (vi) City has not and shall not at any time in the future take any action that it lows would impair the validity of the Environmental Attributes, including the validity of any RINs or LCFS credits generated and associated with the Biogas sold and delivered under this'gee .e t. (g) Disposal. Conditions, City represents and warrants that it has provided all Disposal Conditions applicable to the Landfill to Developer for Developer's review and that City has no intention to alter or modify any such Disposal Condition(s) Mess required by Applicable Law. (h) fit. Provided Data. City represents and warrants the data it has provided to Developer is accurate in all material respects. (i) EMatters. (i) City represents and wmTants that it has conducted all appropriate inquiry and City does not know or have reason to know of any activity at the Landfill which has been conducted, or is being conducted, except in compliance with all statues, ordinances, regWatio . , orders, and requirements of common law concerning (1) those activities, (2) repairs or construction of any improvements, 3 handling of any materials, (4) discharges to the air.*, soil, surface water, or ground water, and storage, treatment, or disposal of any waste at or connected with any activity at the Landfill. (H) City represents and warrants, to the best of its knowledge, that no contamination is present at the Landfill. For purposes of this section, the term C`co tat nation" shall mean the uncontainable presence of hazardous substances at the Landfill or arising -om the Laadfill, -which may require remediati n under any Environmental Laws. For purposes of this Agreement, "hazardous ubs miees,", shall mean hazardous substances as deed in Federal statues, rules'!, regulations and orders, C4regulatcd substances' within the meaning of subtitle I of the Resource Conservation and R co ory Act (42U.S.C. § 6901 et seq.), and any applicable state statute, 1-.es, or regulations defining hazardous wastes, requiring ing envi onmental cleanup or regulating groundwater contamination. (iii) City represents and warrants to the best of its knowledge, that it does not know or have any reason to know of any polychlorinated biphenyls or substances conta� Polychlorinated biphen is present at the Landfill. .3 DISCLAIMER of REPRESENTATIONS AND WARRANTIES, EXCEPT .AS EXPRESSLY SET FORTH IN THIS REEMEN , NEITHER PARTY MAKES o- 1 WARRANTY OR REPRESENTATION OF ANY IGND WHAT v ., EXPRESS NOR IMPLIED. , ALL IMPLIED WARRANTIES INC MO, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. ARTICLE X ._., AULT, REMEDIES AND TERMINATI N E VE N" S 10.1 Event of Default. The parties agee that the occurrence of any of the following events or conditions with •es ect to a puty shall constitute an Event of Default under this Agreement: (a) Developer fails to make any payment or amount due and payable under ffiis Agreement ement within fifteen 15 days after receiving written notice from City of the nonpayment; 10rovided that failure to pay amounts disputed good faith shall not constitute an Event of Default under this Section 10.1(a ui.ess and until such amounts are Uly and finally determi -.ed to be owed. (b) Failure of dither pasty to satisfy and perforin any of the other material obligations (such obligations not covered by items a) or c of this Section 10. l imposed on it by the terms, covenants or promises of this Agreement, and such failure is not cured to the other ma's reasonable satisfaction within sixty days after receipt of allotice of Default ault specifying the nature of the Failure; provided, however, the defaulting arty shall have an additional period o met ) days .•om receipt of such Notice of Default or one hundred and fifty (ISO) days total) vit ro which to cure the failure if such failure is not curable within the sixty 6 days and the de 'aultm* g petty continues to diligently pursue a cure. (c) (i) Either party becomes insolvent or unable to pay its debts when due; generally ffiils to pay its debts when due; files a petition in any b nla u tc , reorganization, windffig up, or liquidation proceeding or other proceeding analogous in pug -pose or effect relating to such petty; applies for or consents to the appointment of a rcc iver,, trustee, or other custodian for the baduptcy, reorganization, winding up or liquidation of such party; makes an assigment for the benefit of creditors; or admits in writing that it is unable to pay its debts; or it any court order or judgment is entered coning the bankruptcy or insolvency of Developer or City, or approvffig any reorganization, winding up or liquidation of Developer* or City or a. substantiat portion of Its assets; or (ifi) there is stltuted against Developer or City any bankruptcy, reorganization, winding up or liquidation proceeding, or other pyoceeding analogous in purpose or effect, and the same i not dismissed withinninety days after the institution tbereo ', or iv a receiver, trustee or other custodian is appointed for any part of the assets of Developer or City. 10.2 Cit y's Re .e dies * At any time after{ an Event of Default by Developer has occurred and not been cured, pursuant to this Agreement, City may without obligation, to any one or more of the following: (a) germinate this Agreement aid the, Project Agreements and cease to sell Landfill Gas to Developer. (b) Sell Landfill Gas to any other Person. (c) Proceed to protect and enforce any or all its rights and remedies under this Agreement or the Site Lease, and to exercise any or all other rights and remedies available to it at law, in equity or by statate. 10. 3 Developer'sRemedies. At any time after an Event of Default by City has occ rxed and not been caned, as pursuant to tWs Agreement, Developer may without obligation to any one or more of the 'o llowffig t (a) Terminate this Agreement and the Site Lease and cease to purchase Landfill Gas ftom City. (b) Remove the Gas Upgrade System and any additions, itions, huRio ement , equipment, and fixtures or property of Developer on the property leased pursuant to the Site Lease. (c) Proceed to protect and enforce any or all of its rights and remedies under this Agreement and to exercise any and all other fights and remedies available to it at law, in equity or by statrte. 10.4 ` crmin on for Convenience. At any tine during the Term, if Developer determines that the Collection System or Gas Upgrade System Will not be commercially Friable, Developer shall have the right to terminate this Agreement for convenience; piovided, however, in the event of such a termination, Developer shall transfer ownership of the Collection System to City at no cost. 10.5 Actions jJpon iration or Termination. a Following the delivery of any termination notice, the parties shall consult m good faith for a period of t .frty o days as to the appropriate actions, if any, that can be. taken to mitigate the consequences of the relevant default, taking into account all prevailing circumstances. (b) In the event of any termination or expiration of this . gteement; (i) Developer shall transfer ownership of the Collection. System to City on an "as -is, where -is"' basis and, if due to the expiration of this Agreement or an earlier termination due to City default, at a price equal to the tax depreciated value of the Collection System or, if due to an early termination clue to Developer default, at no cost to City; and (H) shall remove the Gas Upgrade System and the Gas Upgrado System. Equipment and restore the portion of the Landfill occupied by the Gas Upgrade System to substantially the same condition as It was prior to the construction and installation of the Gas Upgrade System. Following the removal of the Gas Upgrade System and the Gas Upgrade System Equipment, neither; m-ty shall have any further obligation under this Agreement, except for any Liabilities or obligations accruing to a. party prior to the termination or expixation of this Agreement and those obligations that expressly survive the termination or expiration of this Agreement. ent. (c) Upon expiration or termination of this Agreement or the Site Lease, upon request of City, Devoloper shall execute and deliver to City any documentation necessary to evidence the termination and revocation of any rights of Developer to the Site, the Landfill Gas and other rights provided in connection with this Agreement or the transactions contemplated hereby. ARTICLE XI INDEMNIFICATION AND LIMITATION ON LIABILITY 11. Index nific tion, Subi ect to the other provisions of this Agreement, including, without limitation, any obligation for which a sole remedy is explicitly specified, to the fullest extent permitted by Applicable Law: (a) shall indemnify and defend City and its Affiliates, and their respective directors, officey , pattners, shareholders, employees, agents, representatives'. co - venturers,, successors, permitted assigns, contractors or sex ants (collectively, the ".ty Indemnified m ies"' , harmless for, f -om, and against, any and all TMrd Pmty Claims, whether taxable or not, arising out of, resultftig fiom or in connection with the negligent or willful acts or omissions of Developer, its Affiliates or their respective employees, agents, officers, invitees, contractors or representatives in the performance, of tms Agretainent. (b) City shall indemnify and defend Developer and its Affiliates, and their respective directors, officers, partners, shaxeholders, employees, agents, representatives, co - venturers,, successors, permitted assigns, Developers, or servants (collectively, the ".Deve.10 ear Indemnified Panties"), harmless for, from., and against, any and all Third Warty Claims, whether taxable or not, arising out of, resulting from or in connection with the negligent or Willful acts or omissions of City, its Affiliates ox their respective employees, agents, officers, invitees, co tractor , or representatives In the performance of this Agreement. (e) In the event of the assertion o • commencement by any Verson of any Third Warty Claim or Dispute (whether against Developer or against any other Verson) with respect t which any indemnitee may be entitled to indemnification, compensation, or reimbursement pursuant to this ARTICLE XI a. " 'mod Par Claim '), a. ply, either the City or Developer, as the ease might be, shall have the right, at its election, to proceed with the defense of such Claim or Dispute on its own with counsel. Such patty shall have the right to settle, adjust, or compromise such Claim or Dispute; provided, however, that if such pasty settles, adjusts, or compromises any such Claim or Dispute without the consent of the indemnitors, such settlement, adjustment, or compromise shall not be conclusive evidence of the amount of datnagcs incurrtbd by the indemnitees in connection with such Claim or Dispute (it being undeitood that if the loamy requests that any of the indemnitors consent to a settlement, adjustment, or compromise, such indemnitox shall not unreasonably withhold or delay such consent). Such party shall give the lnde nitors prompt notice after it becomes aware of the commencement of any such Claim or ww Dispute against the other party; provided, however, that any failure on the part of a patty to s notify the inden hors shall not limit any of the obligations of the indenwitors, or anyhrights of any indemniteo, under this ARTICLE XI {except to the extent such failme materiallyPrejudices the dcfense of such Dispute.). If a party does not elect to proceed with the defense of any such Dispute, the indennitor may proceed with the defense of such Dispute with counsel reasonably satisfactoryto the otherparty; provided, however,that the indemnitor may not settle nor compromise any such Dispute without the prior written consent of the other party the , consent shall not be unreasonably withheld or delayed): .2 �. Developer sill have no liability as a result of, or in relation to, the acts or omissions of City in connection with the operation of the Landfill. In all clrcun stanoes, to the extent allowed by Texas law, City shall have full responsibility and liability for the control or containment of, or for damage occasioned by, Landfill Gas migration or groundwater contamination beyond or within the grounds of the Landfill. Developer shall have no responsibility or liability for the c ntxl or containment of, or for damage occasioned by Landfill Gas raigration or groundwater contamination beyond or within the grounds of the Landfill, except to the extent caused by any grossly negligent acts by Developer, such as failure to operate the Collection System. In substantial compliance with all Applicable Law. The City shall have no liability as a Yesuit of, or in relation to, the acts or omissions of Developer, its agents or employees, r subcontractors, their agents or employees in connection with the eonstr otion or operation of the Collection System and the Gas Upgrade System, except to the extent caused by Clty's grossly negligent acts, such as failure to operate In substantial compliance with It all Applicable Laws. The limitation of liability in this Section 11:2 shall survive cancellation, termination, or expiration of this Agreement. 113 Waiver of Damaizes;.Non-Reliance. Except in connection with. Claims by third axis that are not Affiliates of the parties hereto, neither party shall be liable to the other party for any special, indirect, loss of use, lost profits, or consequential (other than actual and direct damages arising under or out of this Agreement or the transactions contemplated in this , greennent, 11.4 Non-Recouse. All Glarus (whether in contract or in tort, in law or in equity) that may be made by a pates and may be based upon, wise out of, or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or wmTanty, whether written or oral, made M or in connection with this Agreement or as an lnducemont to enter into this Agreement), may be naade only against the entity that is expressly identified as a party to this Agreement. No Non -Party Affiliate shall bave any liability whiten in contract or in tart, in law or in equity, or based upon any theory that seeks to impose liability of an entity per' against its owners or affiliates) for any obligations or liabilities arising under, in connection with, or related to this Agreement or for miy Claim based on, in respect of, or by reason of this Agreement or its negotiation ox# execution; and each party and its Affiliates, waives and releases all such liabilities, Claris and obligations against any such Non -Party Affiliates. Non-- Paity Affiliates are expressly intended as third -party beneficiaries of this provision of this Agreement. ARTICLE XI LENDERS AND LENDERS RIGHTS 12.1 Lenders. Developer may encumber, mortgage, lease, or hypothecate to any person or entity providing equity or debt financing by deed oftrust, mortgage, or other see -unity instrument all or any part of Developer's interest In the Project, equipment, or app-Lulenant facilities, property rights, and interests of Developcx under this Agreement. Developer may also assign, pledge, and set over to any Lender all rights of Developer In this Agreement, any other agreement with City regarding the Collection System, the Gas Upgrade- System, and any governmental authorization, permit o • license regarding the same. No such assignment, mortgage, lease, hypothecation, on pledge shall relieve Developer of any obligation under this Agreement. City shall agree to reasonably cooperate with Lenders and enter into estoppels, consents to assign, consents, and other agreements reasonably requested by Developer and Lender. 12.2 Lender R.-at . Ln addition to any other right provided to any Lender by other provisions 6f this Agreement, any Lender shall have the right at any time. during this Agreement to: i do or cause to be done miy act or thing required of Developer under this Agreement or any other agreement between City and Developer, and any such act or thing performed or caused to be eiformed by such. Lender shall have the effect ofhaving been done by Developer itself, ii realize on the security afforded such Lender by tag possession of all or any portion of the Collection System or Gas Upgrade System owned by Developer and/or exercising foreclosure proceedings or power of sale or other remedy afforded In lair or In equity or by security documents assigned to or entered into by the Lender, and iil) subject to the restrictions noted in paragraph. i1 of this Section, transfer, convey, or assign the interests of Developer under this Agreement, and any other agreement between City and Developer regarding the Collection System or Gas Upgrade System (together, the "C ty evelo er Agreements"), to any purchaser of any foreclosure or secured paity sale, whether such sale be conducted puisuant to court order, power of sale contained In the Lender moi gage or applicable law, and to acquire and succeed to the interest of Developer under City/Developer Agreements by vfitae of any f recl sme or secured party sale, whether such sale be conducted pursuant to a court order, a power of sale contained in the Lender Modgage or applicable law, or by viltue of a deed and/or bill of sale and assigment in lieu thereof. City shall grant any Lender or its authorized designee mediate access to the Landfill, the Collection System, and the Gas Upgrade System and any related equipment or facilities to the extent neces air to remedy any breach or default of Developer under this Agreement or in exercise of the Lender's remedies under* any security doemne .t. If Lenders are, prohibited by any banlauptcy, insolvency, or judicial proceeding from commencing foreoloswe proceedings or other actions to preserve their secured interests) in tho Collection Systems., the Gas Upgrade System, and City/Developer Agreements, any right of City to terminate any City/Developer Agreement shall be suspended for so long as the Lender(s) diligently pursue such proceedings and cure any default in the payment of monies due City. 123 Successor Obligations, If any Lender or other third party acquires Developer's interests under City/Developer Agreements as provided in Section 12.1, such Leader or thh,d pasty shall accept In writing and shall without flirther action e subject to, the same terms and conditions set forth in the City/Developer Agreements, and shall be required to immediately cure all defaults r breaches of Developer under this Agreement. No such asslgmment shall be effective. e without the consent of City, such consent not to be unreasonably delayed, conditioned • withheld. 12.4 ,Codes_ _of Notices, City shall provide any Lender with copies of all default and termination notices required to be given to Developer tuider this Agreement simultaneously with -19- the forwardhig of such notice to Developer. No such notice shall be deemed effective absent the providing simultaneous copy to Lender. Developer shall designate in writing the Collection System Le .der(s) and shall provide to City in writing the names and address of such e .de s . Failure of Developur to provide names and addresses of Lender(s) relieve City from the notice obligation of this Section 12.4 as to the omitted Lender, 12.5 No Termination. City shall not accept a voluntary or mutual agreement to modify or terminate this Agreement without the express written consent of any Lender whose name and address have been provided to City. In the event that this Agreement is terminated, City shall, upon written request from any e d r s made within sixty clays after such termination, eater into, with a designee of said e der s , are agreement identicalin all material aspects to this Ag eement, provided that such enders or their designees cures all breaches and defaults of Developor capable of cure prior; to the execution of said agreement, including all payment defaults. City shall allow the enders or them designee a reasonable time to cure any such curable default to City's receipt of notice regarding the desire for a new agreement. This section shall survive ally temiinatior of this Agreement. ARTICLE FORCE MAJE U If either party is rendered unable, wholly or in pait, by the occurrence of an event of Force Maj cure to carry out its obligations under this Agreement, the obligations of the affected party wall be suspended i during, but no longer than, the continuance of the e cnt, and h only with respect to the party'party's specific obligations hereunder affected ected by the event, The affected party shall give to the other party prompt written notice of the Force Maj eu e event, which notice shall include a description of the nature of the event, its cause and possible consequences, its direct impact on the party's inability to perform all or any part of its obligations under this Agreement, the expected duration of the event, and the steps being taken or proposed to be taken by the affected party t overcome the event; provided, that the Failure to give such notice shall not prevent a party from claiming Force Ma eure but the performance of such pw y's obligations under this Agreement shall not be, excused witil the date written notice is provided, . event of Force Maj cure continues for more than t�; e hundred and sixty-five 3 ) consecutive days, the pwly that has not asserted the event of Force Mai cure may terminate this Agreement upon giving written nticc to the other p mly..iiy such termm' a n. shall be without liability between the parties, except for any liabilities or obligations accruing to a party prior to the termination of this Agreement and hose obligations that expressly su rge the termination of this Agreement. The pmty claiming an event of Force Majeuxe shall promptly notify the other party of the termination of such event. ARTICLE XW NUS CANo S 14.1 Amendment. This Agreement may only be modified, amended, or supplemented by an instrument in writing executed by Developer and City. 1.4.2 GoverrbLaw; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal lags of the State of Texas, without giving effect to any choice or conflid of law provision or a le whether of the State of Texas or any other jurisdiction) that would cause the application of the lags of any Jurisdiction other thwa the State of Texas. By execution and delivery of this Agreement, .t with respect to legal actions that may arise under this Agreement, each of the pal -ties knowingly, voluntarily and irrevocably: W waives any nght t trial by jury; (H) agrees that any such Clair or Dispute shall be, decided by court trial without a jw-y; and(iii) agrees that any party to this Agteement may file an ofiginal counterpart or a copy of this Section with any court as written evidence of the consents, waivers and agreements of the partics set forth in this Section. Venue for any dispute arising from this Agreement shall he proper In Beaumont, Jefferson County, Tc%as, 14.3 Dispute.Resolution. The pardes agreeto address n disputo first among the parfies for a period of thirty ( days, to he elevated to senior leadership if resolution coot be achieved. only if senior leadership are unable to resolve the dispute within an additional thirty 3 days will the pw ties have recourse to ava a le legal and equitable remedies. Nothing ill. this provision shall waive the right of either party to seek a juror trial. 14.4 Attomgys' Fees, If the patties resort to legal action for the enforcement or interpretation of this Agreement or for damages on account of a breach hereof, the prevailing party shall he entitled to an award of its fees and costs to the extent allowable by law (whether taxable or not), including, without limitation, expert witness fees, alt litigation related expenses, and reasonable attomeys' fees incurred in connection with such. action. In deter n=ng which party is the prevailing paI'ty, the term "prevailing ailing ' means the net wi Vr of the Dispute, taking into account the claims pursued, the claims on which the pursuing party was suecessfal, the amount o money sought, the amount of moneyawarded, and offsets or counterclaims pursued {and whether such were pursued suceessflly or unsuece sUl by the other pmt . 14.5 Notices. All notices or other commulb me tlons required or permitted .itte under this Agreement shall he in writing and may he given by depositing the same in the United States mall, addressed to the pasty to he notified, postage prepaid and registered or certified with retm receipt requested, by ovemight comfier or by deli e fig the same. in person to such party. Notices shall be deemed given and effective, the day personally delivered, or the lair after being sent by o ert courier, subject to signature erificatlo ..any party may change the physical address for notice by notifying the other parties of such change in accordance with this Section. Such notice shall he adch-essed as follows: If to Developer, addressed to it at: CI Fuels USA Inc. Zoo Post oak Blvd., Suite 3150 Houston, Texas 77056 Attn: Legal Department Email: uslegaldepartment@oei.nl If to City, addressed to 't t: 1 -21- City of Beaumont, Texas 801 Main. Street, Suite 300 Beaumont, TX 77701 Attn: Kenneth R. Williams, City Manager Email Kenneth..Williate.s@Beaumon Gov with copies to: Holland & Might LLP 1 Main Street, Suite 2500 Houston, Texas 77002 .At: Joshua Belcher,, Esq. Email: Joshua.bele.her@hklaw.com with copies to City of Beaumont, 'texas 1 Main Street, Suite 300 Beaumont, TX 77701 Attn: June Ellis, Assistant City Manager — operations Email: June.Ellis@B eau .o ffexas. Gov 14.6 ead . Headings or captions herein are merely for convenience and are not Pam of tis Agreement and shal I not i any way modify or affect the provisions of this Agreement. 14.7 NoWaiver. No delay or omission to exercise any right or power shall be construed to be a waiver of any default or acquiescence therein or a waiver of any right or power, and every such -right and power* may be exercised from time to time and as often as may be deemed expedient, Either party's acceptance of any poi formance clue, under Us Agreement that does not comply strictly with the to rns of this Agreement shall not be deemed to be a waiver of any right of such per' to strict performance by the other paity. Acceptance of past due amounts or paitial payments shall not constitute a waiver of fall and timely payment of any sums due under this Agreement. 14.8 Facsimile Sid e ; Counter ails. Facsimile signatures of the parties shall be acceptable for all purposes. This Agreement may bo executed in two or more originals, Facsimile or pdf counterparts, each of which shall be deemed an original. and all of whichtogether shall constitute but one and the same ins*met. .9 Se erabillt . If any torm or provision of this Agreement should be held invalid or unenforceable, the parties to this Agreement shall endeavor to replace sueh invalid terms or provisions by valid terms mid provisions that correspond to the best o .� the o *g al econornic and general intentions. The invalidity or w-tenforceability of any term or provision of this .Agreement shall not be deemed to render the other terms or provisions of this Agreement invalid or unenforceable. 14.10 .tire Ageement. This Agreement constitutes the entire agreement between Developer and City relating to the subject matter of this Agreement and supersede all prior written and oral agreements and understandings and all c crnorancoxus oral representations or warranties in connection therewith. Neither Developer nor City have wade and do not make any representations or warranties, expressed or implied, except as specifically set forth iu this Agreement, and Developer and City hereby expressly aelmowledge that no such representations or warranties have been made by the other party. 1 .11 ,Subcontractig ,,Assignment,. (a) Subcontracting. Developer shall have the right to subcontract the operations and maintenance obligations of this Agreement and the Might to sublease the Site Lease -22- or the Project. Developer shall provide prior written notice to City of its intention to sub o ttlact, in whole or in part, its rights or delegate its duties pws ant to this Agreement. In the overt Developer uses such i t s# , Developor will cause any and all subcontractors to be bound by all the terms and conditions set forth in this Agreement (arid provide evidence of such to City upon City's request). (b) A.ssigmnent. This Agreement and all of the terms, conditions, and lin tatiors contained it this Agreement shall be binding -upon and inure to the benefit of the paill"Qs and their respective successors and permitted assigns; provided, however, that except as otherwise provided in tWs Agreement, neither pasty shall assign this Agreement (nor any interest, right or benefit it or under this Agreement), in whole or in part, 't�out first obtaiffiffig the written consent of the other paw, which consent shall not be umeasonably withheld, conditioned, or delayed; provided, and notwithstanding the foregoing, Deyeloper may assign all of its rights, duties, an obligations under this Agreement to an Affiliate of Developer upon prior written notice but without poor written consent of City. (c) Collateral A.ssi�ne . Developer has the right to collaterally assign this Agreement and if Developer makes a collateral assignment, then any such assignee -Lender shall have the rights set fort. i ARTICLE X1. .12 Futher Assurances. The p adies shall perform all such acts (including, without limitation, executing and delivering instruments and dement as reasonably may be ece say r to fully effectuate the intent and each and all of the purposes of this Agreement, l c ud ng, without lin . ation, consents to any assignments, transfers, subleases, or easements permifted hereunder. 14.13 No Paitner . Nothing contained in this Agreement shall be cos ed to create any association., ts , part ership, rjoffit venture or impose a. trust or pmt �e 'ship, duty, obligation, or liability or an agencyrelationship on, or with regard to, either paw. Neither party shall. have the right to bind or obligate the other party In any way or manner Mess otherwise provided for in this Agreement. 14.14 Cox xdontial Information. (a) Except required by Applicable Law or for attestations of Environmontal Attributes, neither party shall, without tho prior written consent ` the disclosing pay, y, disclose (regardless of the fonn of disclosure) any Confidential formation except to Recipients. The receiving party shall .oti fy any Recipients of the confidential nature of the Confidential Information,, and the receiving party hereby agrees to be responsible for any breach of the terna.s of this Section by any Recipients of Confidential Information ftom thQ receiving pai t . (b) If a petty is legally required to disclose Confidential Information b Applicable Law, the receiving pmly shall make reasonable efforts to resist disclosure of such information, and shall provide. prompt notice of anyjudicial or other governmental action or other Applicable Law requiring disclosure to the, disclosifag party, and the disclos ig party shall be afforded the o poitunit (consistent with the legal obligations of the receiving petty) to exhaust all reasonable legal remedies to maintain the Confidential Information in confidonce. -23- (c) In the event that there is a breach by either party of the ri i n Section, the di elo i .g party shall be entitled to seek a temporary and ptrmment injunction to restrain the receiving party .•o . disclosing In whole or in past any Confidential Info matio ., as prohibited hereunder, and t o disclosing party shall be entitled to reimbursement for all costs and expenses, including reasonable attor .ey's fees, in connection therewith. Nothing in this Section shall be construed as prolAbiting the diselosi g paity fi-orn pursuing such other remedies available to It for such breach including the recovery of damages ftom the receiving per'• (d) Upon the expiration of thc Term or the earlier termination of this Ag eeinent, promptly upon request, the pares shall agree on the terms.s of return to the other party or destruction of: i all Confidential Information then field by such or any of its agents, representatives, or employees, and H) all hiformation and documents then held by Developer or any of its agents, representatives, or employees related to the quantity, duality, cots, an elements of the Lwidfill Gas produced by the Landfill; ro ided that both parties may Leta x one. copy of any documents retained solely for the purpose of compliance with Alicable Later or document retention policies. 14.15 ' fir Partyeneficiaties. This Agreement is intended ed to be solely for the benefit of the paities and their successors and permitted assignees and is not intended to and shall not confer any rights or benefits on any other tbdrd party not a sig atoxy to this Agreement. 14,16 Publicityand...CoKporate Identitv. Unless otherwise e e uired by Applicable Lair, neither party may uso the name, trade name, trademarks, service marks, or logos of the other party or the existence of this Agreement or the project described 'in this Agreement or any likeness, photo, film, or similar lie kind reproduction of the other's facilities or property in any publicity releases, news releases, manual reports, ts, i rage, stationery, print literatare, advertising, or websites without securing the prior written consent of the other party, which consent shall not be =easo ably withheld, conditioned, or delayed. Neither party shall issue any publicity or news release regarding the Project without the vaitten consent of the other party, which colasent shall not be unreasonably withheld, conditioned, or delayed. The parties shall not, without prior written consent of the other party, represent, direotly or indirectly, that any product or sei- ice offered by the party has been approved or endorsed by the other party, 14.17 Tax Benefits and Other Incentives. The Pmlies agree to discuss in good faith any amendments to this Agreement necessary or advisable to maxff'=* o the benefit to the Prof cot and the Parties of any tax benefits and other financial incentives that may bo or become available under Applicable Law, including pursuaat to the federal ration Reduction Act of 2022 and any requirements in associated implementing regulations and guidance issued by a Go (,znment l .authority. 14.18 Essential `del-ms. The Parties aolcnow edge and agree that this Agreement is a written contract and that it state the -essential terms of the agreement by which Developer will rolde goods or services to Fitt [Signia-ture page tofollow] m2,4� -1-N WITNESS WHEREOF, Developer and City have executed this Agreement o be, effective as of the Effective Date, CITY: City of Beaumont Name,.,.e; + a Title: f �f DEVELOPER: OCI Fuels USA Inc., a Delaware corporation � ff * !!f Name: S�f I (t Coe ft Title: [Signature Page - Gas Sale and Purchase Agreement] EXHIBIT A DE, SCRIPTION OF THE LANDFILL Landfill Address is 5 895 Lafin Road ca mo t, Texas 77705 Typo I Municipal Solid Waste Landfill { MSS P ernlit Numb er 14 8 6E tit : N 3 o° 02' 0 5 11 Longitude: W 4° off'' 4111 Elevation: 16.94 feet above mean sea level (1\4SL) roxi I mately 2,400 feet south of US Highway 28 ' t the intersection with Fannett Road, 2,200 feet northeast of HillebrandtBayou, and ,too oast of Latinrive, innnediately south of the Poet fur Fresh Water Canal. Exhibit A. Page I E, XM IT B. PROJECT MILE, STONE 8 Milestones for Collection System [TBD] Milestones for Gas Upgrade System [aBD] Note: Timelines to be de eloped based on third -patty proposals for flie construction and installation of these Exhibit 'age 1 EXHIBIT C DEFINITIONS The following words atid to . ns shall have the meanings specified in this EXHIBIT C who . used in this Agreement. "Affiliate"' means any Person that controls or is controlled by, or is under common control with, arty, with the word "control" (and correspondingly, "controlled bar" and "under contml with") as used with Yes ect to any Person., meaning 1 ownership of fifty percent (5 0%) or more of all of the voting stock of any coi oratio ., or fib percent 5 % or more of all of the legal and equitable interest in any other busies entity, o 2 the possession of or the power to direct or cause the direction of the clay--to-day management and policies of such Person* "Applicable Laws" means any and all applicable federal, state, county and local laws, statutes, rules,, regulations, licenses, ordinances, judgments, orders, decrees, directives, guidelines or policies to the extent mandatory), permits and other governmental and regulatory approvals, including, without limitation, any and all Enviromnental Lars, or any similar form of decision or determination by, or any interpretation or admini ttatio . of, any of the foregoing by any Governme tal Authority with jurisdidion over City, the Coltection System, Developer, the Gas Upgrade System, the Site, the Landfill, or the perfor anoe of t e work under this Agreement and the transactions contemplated in this Agreement. "Bio asp" means a mixture of hydrocarbons that is a. gas at sixty degrees Fahrenheit and one (1) atmosphere of pi essure that is produced tko gh the anaerobic digestion of organic matter. " s ess a ') means any day other than a Saturday, Sunday or legal holiday in the Mato o `texas, or a day on which bang institutions chartered by the Mate of Texas, or the United States of America, are legally required or authorized to close., "Developer Indemnified Pardes"shall have the meaiiing set forth in Section 11.1 b . "Claims" means any and all costs, losses, expenses, suits, actions, proceedings, damages, penalties, fires, and liabilities, including, without limitation, reasonable attorneys' fees, expert witness fees, litigation expenses, and court and other costs, whether taxable or not. "Collection Systems;" means the fixtures,, � e ipment and assets to extract, collect and convey Landfill Gas ftom the Landfill up to and including the Delivery point and including, without livaitatio ., the wells, pipes, headers, and gathering systems, flares, vacuums pipelines, blowers, condensate knockout vessels or systems, and all other fixtures, equipment .d assets that axe used or the purpose of collecting, producing, treating, or delivering or facilitating the collection, production, treatment, or delivery of Landfill Gas, as constructed and installed s provided under this Agreement or as the same is modified expanded and replaced; but excluding in all eases the Gas Upgrade System and the Gas Upgrade System Equipment. "Commercial Operations Date' means the date on which Developer accepts initial delivery o Landfill Gas Rom City for processing in the Gas Upgrade System, , in accordance with the terms of this Agreement, which shall occur or the day sped ed by Developer by at least ten l days' advance written notice to City, Exhibit C, Wage 1 "Commercial Operations Period" means the period conunencing on the Commercial Operations Date and ending on the twentieth lothanniversary thexeo `, "Condensate" means any liquids that condense, or othex-rise separate fro the Landfill Gas during collection, t tansporting, or processing of Landfill Gas after it has passed the Delivery Point. "'Confidential information" weans all data, iffor atio ., repolls, or documents developed or collected by one party and provided or made available to the other.- parV or its agents i in connection with the Landfill, the Collection. System, or City's operations, or the Gas Upgrade System or Developer's operations, or (ii) aa result of any of the Frights granted to, or obligations undo. taken by, either paw pursuant to this Agreement, whether or not designated as confidential, but shall not include formation to the extent such information a is in the public domain at the time of disclosure, or following disclosure, becomes generally known or available fluough no action or omission on the part.of the receiving party, or (c) is known, or becornes known, to the receivmg pasty from a source other than the disclosing party or its representatives; Ri:ovided.that disclosure bysuch source is not in breach of a confidentiality agrecment with the disclosing party, t d is independently developed by the receiving party or its directors, officers, employees, agents, legal counsel, or consultants without reference to the disclosing pay ty's Confidential Information. "Delivea Poinf 'means the designated interconne tion point i.e., flange) where City shall make available Landfill Gas to Developer at a location designated by City fi=ediately downstteam o City's blowers, which is more particularly described on EXHIBIT A attached hereto, "Disposal Conditions" means any licenses, permifs, approvals and authorizations fequired in order for City to owe., operate and accept waste materials at the Landfill, " is ute" means any legal action arising under{ or in co ucction. with this Agreement or any other instnment, document, or agreement executed or delivered in connection with this Agreement, or n any way connected with, related, or incidental to the dealings of the parties with respect to this Agreement or such other instrwnent, document or agreement ent or the transactions contemplated in this Agreement. "Due Diligence Period" shall have the Weaning set forth in Section 2.2. "Effective Date" means the date designated in the preamble of this Agreement. "Environmental Attributes" means any and all current and future Frights, credits, benefits, air duality credits, methane capture credits, renewable energy credits, emission reductions, offsets and allowances, howsoever referred to, associated with the `captu e, production, generation, transportation, use and environmental characteristics of Biogas, the production, generation, transportation, use and environmental characteristics of RNG derived ftom such Biogas, the displacement of fossil -based natural gas for any use includixig thermal use, electricity generation and use as a transportation fuel), the reduction of air pollutants or the avoidance of the emission of any gas, chemical or other substance, including without limitation any similar attributes, whether arising out of international, federal, state or local laws or regulations including without limitation renewable enorgy credits under Renewable Poitfolio Standards, RINs undey the EPA R`S Progra n and LC S Credits under the LCFS. Exhibit C. Wage 2 "Envixonmental Laws" means any and all applicable federal, state, county, municipal and local laws, statutes, rules, regulations, ordinances, codes, restrictions, rmi. requirements, licensing requirements, consult decrees, decrees, j-udgments, permits, licenses, covenants, deed restrictions, and any other govermuental requirements or obligations of any kind or natute relating to 1 environmental pollution, contamination, or other impairment of any kind or nature, i regulation or protection of health, safety, r atwal resources, or the enviromnent, or (iii any .a ardo waste or other* toxic substances of any nature, whether liquid, solid, or gaseous, including, without limitation, smoke, vapor*, des, soot, Ya i tion, acids, alkalis, chemicals, wastes, by-products, and recycled materials, as now existing or hereafter in effect. These Environmental Laws include, without limitation, the Renewable Fiiel Standard, the California Low Carbon Fuel Standard, the Federal Solid Waste Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the. Toxic Substances Control .Act, the Federal Resource Conservation and Recovery Act of 1976, the Federal Comprehensive Environmental Responsibility Clemiup and Liability Act of 1980, as amended by the Superftmd Amendments and Reauthorization ,act of 1986, the Resource Conservation and Recovery .act, as amended by the Solid and Hazardous Waste Amendments of 1984, the Occupational Safety and Health .Act, the Hazardous Materials Transpoitation Act, the Oil Pollution Act of 1990, all as amended ftom time to time, regulations of the Environmental Protection Agency, Dreg tatio .s of the Nuclear Regulatory Commission, regulations of any state department of natural resources or state environmental ental protection agency, now or at any time hereafter in effect and all applicable local ordinances, rales, regulations, and permitting or licensing requirements. "Extended 'er&' shall have the meaning set forth in Section 2. 1. "Fixed Asset 'cep' has the eanm* g set forth in Section .2 a i , "Force cure" means am cause or causes, individually or In t .c aggregate, got reasonably ��.tlxi . the control of and without the fault or negligence of the ,party clamming suspension of the perfo ma ce of its dines under this Agreement and that by the exercise of reasonable diligence such party is unable to prevent ox overcome, including, Without limitation, acts of God, acts of war o • conditions attributable to war, labor disputes, sudden a dons of the elements,, sabotage by 'third pw ties, civil commotion, weather ovens, enactment after the Effective Date of statues, lags, or ordinances by legislative bodies, Issuance of regulations or orders by admn'U*stratl e agencies or conmlisslons, and action by federal, Mate, municipal, or regulatory courts, but not including, under any circumstances, financial inability to perform. For the purposes of this Agreement, the requirement that "Force Maj e e" be a cause not within the control of the affected pwty that b the exercise of Treasonable diligence such party is unable to prevent or overcome shall apply to all f the above examples, but shall not require the settlement of strikes and lockouts by acceding to the demands of tb •d pairties directly or in&ectly involved In such strikes or lockouts when such course is deemed inadvisable in the sole and absolute discretion oft e panty subject to such strikes or lockouts. "Gas Upj4rade System" means the Gas Upgrade System, Equipment and associated stractaos I nstalled by the Developer at the Site and easements for the purpose of processing Landfill Gas, generating Renewable Natural Gas, and transpoi ti g Renewable Natural Gas, together with the interconnection equipment installed on the Site and easements, but not lnol dl g the Collection s stemw Exhibit C. Page "Gas Upgade S M iii m " means equipment, ipme , including, without limitation, internal combustion engines, boilers, tua-tines, cooling tourers, generators, transformers, electrical switch gear, conttols, pipelines, fuel treatment equipment, and similar equipment, as well as all . niter , fixtures, equipment, used i s connection with the Gas Upgrade System, computer hardware and software and databases related to the operations of the Gas Upgrade System, vehicles used primarily in connection with the Gas Upgrade System, operating instructions and raa .ual ,, books and records Yelated to the operation of the Gas Upgrade System., and all governmental ermits, approvals and authorizations related to the Site, the Gas Upgrade Systems. Equipment or the Gas Upgrade System, but not including the Collection System,. "Governmental A. t odV inea s any comet ox tribunal in any jurisdiction or any federal, state, muuicipab or other goverwnental body, agency, authority, de aitaent, commission, board, bureau, or instrme to it r. "Incentives" " ,eans all tax bonefits, grants, and other fitiancial incentives arising in connection with the production and use of the Renewable Natural Gas, Incentives do not inolude Environmental AWibutes. ".Initial 'ei&' has the meaning set fob In Section 2.1. " andffi" means the wal property commonly known as the Beaumont Muniripal Landfill, which is more particularly described on Exhibit A attached hereto, as now constituted and including any e 'a dons of the Landfill, whether adjacent or not, following the Effective Date during the Term. "Landfill - G�" means all logs generated •om the decomposition. o refuse and other solid wastes depositedin, or located on, the Landfill and collected by the Collection System. ` LCFS" means any federal, state or provincial low carbon fuel stmdards other sip ar programs requiring the reduetion of greenhouse gases and carbon intensity in transportation and other fuels, including, without limitation: i the regulations, orders, decrees and standards issued by a Governmental AuthoTity implementing or otherwise applicable to the Califoinia Lour Carbon Fuel Standard as set forth in 17 CCR § 95480 et seq. and each successor regulation, as may be. subsequently amended, modified, restated from time to time; and H the regulations, ordelrs, d egrees and standards issued by a Governmental Authority implementing or other -wise applicable to the Oregon Clean Fuels Program as set forth in section --25 -0000 et seat of the Oregon Administrative Rules as may e subsequently amended, modified, restated ftom time to time. " eac ate" means the liquid produced at the Landfill x om the decomposition of waste materials is the Landfitt, "Londef'means a Person providing senior o subordinated construction, inter=, or long-term debt or re manei g for or in connection with the development,, consh-action, egcu"pment procurement, installation or operation the Project. "MMbt " means one million British Thermal -Units. "Non-Pagy , . iat " means any director, officer, employee, incorporator, member, pat -we , stockholder, der, Affiliate, agent, attome r or representative, of either City or Developer, as applicable. Exhibit C, Wage "Notice_of D e ` ulf' means a written. -notice -om the non -de 'aulting party to the defaulting party specifying are Event of Default. "Persoif 'memis any natra erso or any association, fum, pai hers ii , jointventure, corporation,, .meted liability company or other legally recognized entity, whether for profit or not for profit. " roduet" means the Landfill Gas and Environmental Attributes. "Pro•e t" means the Collection System and the Gas Upgrade System.. "Pr1 .... .grment " means the Site Lease and such other agreements between. Developer and City as relate to the Collection System and the Gas Upgrade System. "Proiect Milestones" means each of the activities identified on.EXHIBIT B attached hereto (each a 4'pro'ect Milestone"')to be completed by Developer within the time period set forth for each such Prof cot Milestone, which Developer{ shall use reasonable efforts to achieve in a timely manner. `t� ipients')l nleans consultants, agents, representatives, actual or potential financiers, or employees of the, receiving ty who (i) shall be obligated to keep Confidential Information confidential and (H) need access to such Confidential Information to assist the receiving pub in the exercise of its rights and the performance of its obligations uader this Agreement. "Renewable Natural Gas" means u grded and -purified renewable, natural gays produced fi-om Landfill Gas b carrier pipeline. Developer at the Gas Upgrade System and that may be injected into common Renewable Fuel Standard" or "RFS ro ad' means the renewable fuel standard program under the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007 and 0 implementing regulations, including without limitation, 40 C.F.R. Part 80, Subpart M, and each successor lair and regulation as may be amended modified or restated Rom time to thee. "RFS Requirements" means that the Landfill Gas provided hereunder. constitutes Biogas fi-one landfills, as set forth in Table I to 40 C. F.R. § 80-1426 of the Renewable Fuel Standard regulations, promulgated pursuant to the Energy Policy Act of 2005 and the Energy Independence and Security Art of 2007, as may be amended from titne to time. t " has the same meaning as deemed under the RFS Program. "Roydty Pa me t'' Developer shall pay to City a er/MM to Royalty Payment based on the production volumes, on a tiered basis, of pipeline quality Renewable Natural bras from the Gas Upgrade System in ac ordance with the following: Price MMBt day $0.00 0-599 Tier 1 $1.25 -5 0 Exhibit Q., Page Tier 2 $2.00 850 - 1,100 Tier 3 $2.75 15100 w 13350 Tier 4 $3.50 L350+ "Qt/Deyeio ' Agreements" .ts" shall have the meaning set Forth in Section 12.2. "Citv Disposal Systems'' means the fixtures, equipment and assets of City, whether owned or leased by City, that are used as of the Effective Date or thereafter by City to extract, collect, convey and dispose oLeaehate fi-om the Landfill. "City Indemnified Parties" shall have the meaning set Forth in Section I I .. a . "Sew --Annual Statement" means a written statement provided by Devoloper to City setting Forth the following with respect to the previoiis semi-annual period: l the number of MMbtus of Landfill Gas delivered to the Delivery Point, the volume of Landfill Gas delivered to the Delivery Point, the average pefeentage of methane content in the volume of Landfill Gas delivered to the Delivery Fount and the average heat content value in the volume of Landfill bras delivered to the Delivery Point; H the volume and number of MMbt s of Renewable Natural bras produced by the Gas Upgrade System, ii the cale latim of the.Royalty Payment; i) any czedits or benefits realized und r Section 4.4 of this Agreement; and v) any other information reasonably requested y city. "Site" has the meaning given that term in the Site Lease. "Site Lease" means the Site Lease Agreement under wMch Developer, as Lessee, leases ; m City, as Lessor.,, the Site located at the Landfill and obtains easement rights to the portion of the surface acreage on v ieh there is erected the Project. . "Sublessee" has the meaning set forth in Section. 7.2. "Tay o • ax&s means all taxes, fees or other assessments, including, without limitation, income, excise, property, sales, franGhise, intangible, withholding, social security and unemployment taxes I mposed by any federal, state, local, or foreign govemmental agency, and any interest or penalties related thereto. " eriW' has the meaning set forth in Section 2.1. "TM rd Pasty Claims" means any Claims asserted by any Person and/or any Governmental Authority. Exhibit C, Page El XHI INSURANCE At all tunes during the Term, Developer skull, at Its sole cost and expense, pxocure and maintain, r cause to be maintained by a third pa ly, the following mininium types and amounts of insurance ance coverage; provided, ded, o rever, that nothing in this EXHIBIT D shall be deemed to limit Developer's obligations to City under this Agreement: (a) All Risk Insurance. All Brisk propel insurance, cl di , without limitation, dire, wind storm, equipment breakdown coverage, exto ded coverage, and special extended coverage insurance with respect to the Proiect in an amount equal to onehunch-ed percent % of the full replacement cost value (replacement cost new, including, without limitation, debris emoval and demolition), with such additional coverage as Developer may elect or the holder of any fee o leasehold mortgage may require, including, without limitation, emthqualce and flood coverage, and sprinkler leafage endorsement. (b) General is 111 �xee s Liabilily. C nunercial general liability insurance against damages and liability, including contractual liability coverage mid coverage with respect t attorneys fees on accoiant of o • a ising out of injuries to or the death of any person or damage to propeaty, however occasioned, in, on or about the Landfill and the Site, in amounts o $2,000,000 per occurrence for prope ty damage or m'jury or death of one or more p er ons> and $10,0 00, the aggregate. (c) Ern to er's Liability/Workers' Compensation.Employer's liability insurance, in an amount o $1,000,000 per accident, and $1,000.,000 per employee by disease, and workers' compensation insurance as required by applicable Lair. (d) Envirommental. Liqbiljty�airmeat. Environmontat liability or impainue t insurance i amounts and types sufficient to coved any exposure related to any hazardous materials stoned, generated, handled ox disposed of by Developer, its agents or employees at the Landfill and any storage tanks or equipment maintained at the Landfill by Developer, its agents or employees, in an amount of $5,000,000 per incident. If fhe environmental liability insurance policy is a "claims - made" policy, Developer na st maintain such insurance for no less than thice years after the termination or expiration of this Agreement. (e) Automobile Insurance. Automobile liability and bodily injury, propeity damage, contractual liability and sudden and accidental pollution insurance in an anxiount o $2, 0 Do, 0 Do per occurrence, which coverage shall apply to all owned, non -owned, hided, and leased vehicles (including trailers). Form o Ins .;a ce Coma es. All insurance, required hereunder shall be in a form satisfactory to City and carried with companies reasonably acceptable to City, in good standing with the Department of Insurance for the state in which the Landfill is located, and have a gating issued by A.M. Best & Company of at least "A.- VIIP. Developed skull meet insurance requirements with any combination of self-insurance, primary, or excess msu lance policies. With the exception of- the workers' compensation policy and the All Risk Policy, City and its Affiliates and subsidiaries shall be ruined as additional insureds, for and to the extent of the obligations Emit D, Page 1 accepted by Developer under Section 11.1 of this Agreement, under all i s ta .ce policies required pu rsuant a to the terms of this Section., and Developer shall provide City with a Certificate o In,surance showing the appropriate parties as additional. insureds; provided that City and its Affiliates and subsidiaries shall be additional i smeds only for and to the extent of the obligations accepted acid assmued by Developer under Section 1 t . 1. of this Agreement. Developer shall provide a thirty o day written notice to City in the event of cancellation of coverage. A certificate of insurance for a y renewals of or replacements for such contracts of insurance shall be delivered to City no later than the date such contracts of insurance become effective. Al deductibles in the above described insurance policies shall be at Developer's sole cost and expense. All insurance shall be vaitten as primary, noncontributing (except for claims arising out of sole negligence) with or in excess of any coverage that Developer does or may ca r. N C v ra o of Invitees Agents and Develo # . Developer's mum lnsu ra ce coverage shall cover the presence and activities of Developer's invitees, subcontractors, agents, and Developers on or at the Landfill. RXM TT Exhibit D. Wage 2 EXMITE SITE LEASE Exhibit E, Page 1 EXHIBIT EASEMENTS Exhibit , Page 1 EXMBIT G DI"SIN OF RE, SONSIBT8 Exhibit -, Page EXHIBIT H ME, `ERING AND ME, AS RE' `NT s of the Effective Date, and subject to update by Developer as may be required in connection with the plans and specifications for the Collection System and the Gas Upgrade System, the metering equipment will include; (i) gas cbroma o r b. (or equivalent technology) o determine the BTU content of the Landfill Gas, (fi) thermal mass Dow meter to measure the volume rate of Landfill bras flared by the Developer* if applicable, (iii) one or moie venturi flow meters, averaging picot tube or other similar ate mea ur device at the Gas Upgrade System to measure the volume flog rate of the Landfill Gas, and (iv) programmable logic couttoller to accumulate the BTU energy mete •ed. a Such equipment must be installed and operated, and gas xnea -areme .t computations must be made, in accordance with event industry standards and good engineering practices, and shall be located as close to the Delivery Point as reasonably practicable. Exhibit , Page I XEIIBIT I LANDFILL GAS SPECINCATIONS As of the Effective Date, and subject to update by Developer as may be required in connection with the plans and specifications for the Collection. System and the xas Upgrade System, the Landfill Gas speeffications are as follows: t a m um, Landfill Gas must contain H2S levels below 50 0 ppm and 02 content below 3.5 % and shall be compliant with. the RFS Requirements. Exhibit , Page EXHIBIT J CONDMATE DE LIVE, RY POINT In connection with the Site Leae, Developer and City shall designate the condensate delivery point and shall include an illustration at Exhibit J. yffillt J, Page