Sample Gas Rights Agreement.PDF

GAS RIGHTS AND DEVELOPMENT AGREEMENT

This Gas Rights and Development Agreement (this “Agreement”) is made on this DD day of Month, YYYY (the “Effective Date”), by and between [Customer], State of [State] (“[Short name]”) and [Respondent], a [State] limited liability company (“Respondent”). [Short name] and Respondent hereinafter may each be referred to as a “Party” and collectively as the “Parties”.

RECITALS:

WHEREAS, [Short name] owns and operates the xxxx Landfill (the “Landfill”) located in the City of XXXX, State of [State], at xxxx (“Landfill”);

WHEREAS, Landfill Gas (as defined herein), consisting primarily of methane and carbon dioxide, is produced as a byproduct of the decomposition of refuse within the Landfill;

WHEREAS, [Short name] owns and controls the Landfill Gas recovered from the Landfill;

WHEREAS, it is in the best interest of [Short name] for the Respondent to construct, own and operate the RNG Facility (as defined herein) and to utilize the Landfill Gas produced from the operations at the Landfill;

WHEREAS, Respondent desires to construct, own, and operate a facility at the Landfill to collect and process Processable Gas (as defined herein) produced by the Landfill into RNG (as defined herein);

WHEREAS, [Short name] desires to permit Respondent to construct and operate the RNG Facility at the Landfill, and sell the RNG converted therefrom, in accordance with the terms and conditions hereof; and

WHEREAS, the Parties will enter into the Site Lease (as herein defined), granting Respondent leasehold rights for the duration of the Term of this Agreement, to that certain portion of the Landfill (the “Leased Site”) which [Short name] and Respondent mutually agree is acceptable in condition and location for the RNG Facility.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, and other good and valuable consideration, receipt of which is hereby acknowledged, [Short name] and Respondent agree as follows:

EXHIBITS:

Exhibit 1 Royalty Payments

Exhibit 2 Site Lease

Exhibit 3 Processable Gas Standards

Exhibit 4 Guaranteed Performance by Respondent

ARTICLE 1. DEFINITIONS

(a) “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a specified person.

(b) “Agreement” has the meaning set forth in the preamble of this Agreement.

(c) “Ancillary Agreements” means the Site Lease and other agreements entered into between the Parties in the context of the RNG Landfill Facility.

(d) “Applicable Laws” means any and all applicable federal, state, County and local laws, statutes, rules, regulations, licenses, ordinances, judgments, orders, decrees, legally-required directives, guidelines or policies of a Government Entity, 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 of, any of the foregoing by any Government Entity with jurisdiction over [Short name], the Collection System, Respondent, the RNG Facility, the RNG (including all Environmental Attributes), the Landfill, or the performance of the work hereunder and the transactions contemplated hereunder.

(e) “Availability Annual LD Cap” has the meaning set forth in Section 5.1.

(f) “Availability Rate” is defined as the percentage of time the RNG Facility is able to operate, in accordance with the formula in Exhibit 4.

(g) “Availability Failure” has the meaning set forth in Section 5.1.

(h) “Availability Guaranteed Rate” has the meaning set forth in Exhibit 4.

(i) “Availability Liquidated Damages Rate” has the meaning set forth in Section 5.1.

(j) “Billing Period” means a semi-annual payment cycle starting on January 1st and ending on June 30th or starting on July 1st and ending on December 31st.

(k) “Business Day” means any Monday through Friday except days during which commercial lenders are not open for business in xxxx, [State], and any day that the Landfill is open for business.

(l) “[Short name]” has the meaning set forth in the preamble of this Agreement.

(m) “CFP” means any state or regional clean fuels program applicable to the RNG subject to this Agreement or that shall become applicable to such RNG.

(n) “Code” means the Internal Revenue Code of 1986, as amended.

(o) “Collateral Assignee” means one or more lenders or the security agent of such lender(s) to whom either Party may have assigned this Agreement as collateral or security for financing.

(p) “Collection System” means the fixtures, equipment and assets at the Landfill to extract and collect Landfill Gas from the Landfill, including, without limitation, the wells, pipes, headers and gathering systems, vacuum pipelines, condensate knockout vessels or systems, and all other fixtures, equipment and assets that are used for the purpose of collecting, delivering or facilitating the collection or delivery of Landfill Gas, as such fixtures, equipment and assets exist as of the Effective Date or as the same are modified, expanded or replaced during the Term.

(q) “Collection System Payment” has the meaning set forth in Exhibit 1.

(r) “Commercial Operations” means the RNG Facility is operating, processing Processable Gas and selling RNG into a commercial gas distribution system.

(s) “Commercial Operations Date” means the date on which Commercial Operations first commence.

(t) “Commercial Operations Deadline” means the later of, (i) the date that is thirty-six

(36) months after the Effective Date, or (ii) the date that is eighteen (18) months following Respondent’s receipt of all permits (in form and substance acceptable to Respondent), or (iii) six

(6) months after the completion of construction by Interconnecting Utility of the interconnection facilities necessary for the RNG Facility, as such deadline may be extended from time to time pursuant to the terms of this Agreement.

(u) “Commercial Operations Target Date” means the date that is twenty-four (24) months after the Effective Date.

(v) “Commercial Quantities” means amounts of RNG being sold by Respondent, in its reasonable business judgment, to be sufficient to pay for all costs of the project, including initial and on-going capital costs, all operations and maintenance expenses associated with the RNG Facility, and royalties owed to [Short name].

(w) “Condensate” means liquid resulting from the condensation of the water and soluble chemicals contained in Landfill Gas produced by a reduction in temperature and/or increase in pressure.

(x) “Confidentiality” has the meaning set forth in Section 15.6.

(y) “Delivery Point” means the point of interconnection located at the flange connecting to the existing Landfill Collection System, through which the Landfill Gas is delivered to Respondent’s RNG Facility.

(z) “Design Capacity” means the design or nameplate intake processing capacity in standard cubic feet per minute SCFM of Processable Gas of the RNG Facility, as may be expanded from time to time.

(aa) “Respondent” has the meaning set forth in the preamble of this Agreement.

(bb) “Effective Date” means the date designated in the preamble of this Agreement.

(cc) “Environmental Attributes” means any and all RINs, renewable energy credits, LCFS credits, and other renewable energy or environmental credits, offsets, allocations, allowances and other marketable attributes, however characterized, denominated, measured or entitled and whether now in existence or in the future created in connection with the processing and sale of RNG from the RNG Facility.

(dd) “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 requirements of a Government Entity or obligations of any kind or nature relating to (i) environmental pollution or contamination, (ii) regulation or protection of natural resources or the environment, or (iii) exposure to or release of any material, contaminate, or waste, whether liquid, solid or gaseous, including, without limitation, smoke, vapor, fumes, soot, radiation, acids, alkalis, chemicals, pollutants, contaminants, wastes, by-products and recycled materials, that are regulated or subject to regulation under any Environmental Law as now existing or hereafter in effect. These Environmental Laws shall include, without limitation, 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 Comprehensive Environmental Response Compensation 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 Hazardous and Solid Waste Amendments of 1984, the Occupational Safety and Health Act (to the extent applicable to employee exposure), the Hazardous Materials Transportation Act, the Oil Pollution Act of 1990, all as amended from time to time, and regulations of any Government Entity implementing the foregoing, now or at any time hereafter in effect and all similar applicable state and local laws, ordinances, rules, regulations and permitting or licensing requirements.

(ee) “Excess Landfill Gas” means the quantity of Processable Gas that exceeds the Design Capacity of the RNG Facility as of that date as measured at one or more of the Flare Stations.

(ff) “Excess Increment” has the meaning set forth in Section 2.6.

(gg) “Excess Option Period” has the meaning set forth in Section 2.6.

(hh) “Flare Stations” means [Short name]’s existing flares including blowers, instrumentation, controls and flare stack components and any future flare stations installed by [Short name].

(ii) “Force Majeure” means causes beyond the affected Party's reasonable control and not due to the act, omission, or negligence of the affected Party or the affected Party's insolvency or financial condition, including, without limitation and to the extent satisfying the foregoing requirements, delays in permitting or utility interconnections, delays due to strikes, lockouts, and work stoppages due to labor disputes, acts of God, pandemics, enactment of or amendments to statutes, laws, or regulations after the date hereof preventing performance hereunder, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, casualty, breakage or inoperability of, or accident to, machinery, equipment or lines of pipe, power outages, or other similar causes.

(jj) “Guarantee Start Date” has the meaning set forth in Exhibit 4.

(kk) “Government Entity” 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.

(ll) “Higher Heating Value” shall mean, with respect to any hydrocarbon, the amount of heat released when a known volume of such hydrocarbon is burned plus the amount of heat released due to the condensation of water vapor to the liquid state as a result of combustion. For purposes of this Agreement, the Higher Heating Value of methane shall be as defined by the American Gas Association (AGA) Report No. 3.

(mm) “Interconnecting Utility” means any 3rd party public or private gas, electric, water, sewer, internet, or other provider of similar services.

(nn) “LCFS” means the California Low Carbon Fuel Standard as set forth in Title 17, California Code of Regulations §§95480-95490, as may be amended from time to time.

(oo) “LCFS Credit” means credits generated and traded under the LCFS, CFP, or any similar state, federal or international program, and, where applicable, with each credit equal to one metric ton of CO2 reductions as compared to baseline CO2 emissions under the LCFS or CFP.

(pp) “Landfill” has the meaning set forth in the Recitals.

(qq) “Landfill Gas” means that raw, unprocessed gas consisting primarily of methane and carbon dioxide which is produced as a byproduct of the decomposition of refuse within the Landfill.

(rr) “Leased Site” means the real property leased by Respondent from [Short name] pursuant to the Site Lease.

(ss) “MMBtu” means million British thermal units

(tt) “Off-Take Purchaser” means one or more off-take purchasers of RNG.

(uu) “Prime Rate” means a fluctuating interest rate per annum in effect from time to time equal to the rate of interest published by The Wall Street Journal in the “Money and Investing” section as the prime rate.

(vv) “Processable Gas” means Landfill Gas of a quality able to be processed into RNG by the RNG Facility to meet pipeline specifications of the commercial gas pipeline the RNG is being injected into, and which conforms to the standards set forth in Exhibit 3.

(ww) “Project Gross Revenue” is defined as one hundred percent (100%) of the revenue actually received by Respondent or an Affiliate of Respondent from the Off-Take Purchasers for RNG produced by the RNG Facility. The revenue received from Off-Take Purchasers is calculated after any transaction fees, capital recovery, operating, transportation costs withheld by, or due and payable to, Off-Take Purchasers, Interconnecting Utilities and 3rd parties that are not an Affiliate of Respondent, excluding Respondent capital and operating costs for the RNG Facility. Such fees shall not be recognized as Project Gross Revenue.

(xx) “Renewable Fuel Standard” or “EPA RFS” means the renewable energy program and policies established by the US Environmental Protection Agency and published on March 26, 2010 (at 75 Fed. Reg. 14670) and became effective on July 1, 2010.

(yy) “RIN” means a renewable identification number issued pursuant to the Renewable Fuel Standard as may be amended and as administered by the US Environmental Protection Agency.

(zz) “RNG” means renewable natural gas that is produced when Processable Gas is processed in the RNG Facility and includes all of the Environmental Attributes associated with such RNG, whether or not the Environmental Attributes are sold by Respondent together with the RNG or sold in a separate transaction.

(aaa) “RNG Facility” means Respondent’s facility consisting of all facilities and equipment it constructs [at the Landfill] as part of allowing Respondent to treat and process Processable Gas and deliver RNG to a pipeline for transportation to an Off-Take Purchaser, as such facilities may be modified from time to time.

(bbb) “Royalty Payment” means the amount payable to [Short name] as consideration for Processable Gas delivered, with respect to the RNG produced and sold from the RNG Facility, as set out in Exhibit 1.

(ccc) “SCFM” means standard cubic feet per minute.

(ddd) “Scheduled Maintenance Outage” means a period lasting for more than forty-eight

(48) hours during which a Party performs scheduled maintenance and repair upon its facilities.

(eee) “Site Lease” means that certain Site Lease to be entered into between [Short name] and Respondent, in a form to be mutually agreed, pursuant to which Respondent shall lease from [Short name] certain real property at the Landfill to locate the RNG Facility, and which Site Lease shall include grants to Respondent of all easements and/or rights necessary for the RNG Facility.

(fff) “Spent Medias” means an activated carbon or other non-hazardous and non-toxic filtration medias used in the RNG Facility.

(ggg) “Term” has the meaning set forth in Section 6.1.

1.2 Interpretation

In this Agreement, unless the context otherwise indicates:

(a) reference to the singular only also include the plural and vice versa;

(b) reference denoting any gender include all genders;

(c) references to any Party to this Agreement include its successors or permitted assigns;

(d) headings are for convenience only and will not be taken into consideration in the interpretation of this Agreement;

(e) the words “including” and “includes”, and any variants of those words, will be read as if followed by the words “without limitation”;

(f) references to this Agreement and any deed, agreement or instrument are deemed to include references to this Agreement or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;

(g) all notices, documents and communications of any kind (including all numerical information therein) in connection with this Agreement shall be in English.

(h) unless indicated otherwise, all amounts referred to herein are in American Dollars (USD) and all units of measurement are based on the Imperial System.

1.3 Priority of Documents

If there is any ambiguity, discrepancy or inconsistency in the documents which constitute this Agreement, the following order of precedence shall apply:

(a) Exhibit 1

(b) Exhibit 4

(c) the body of this Agreement

(d) Other Exhibits

ARTICLE 2. GAS RIGHTS

2.1 Grant of Gas Rights.

(a) [Short name] hereby grants, conveys and assigns to Respondent for the Term of this Agreement (i) all rights, title and interest to and in all Landfill Gas produced from the Landfill, free and clear of all liens, claims and encumbrances and any subsequent amendments, modifications or renewals thereof; and (ii) from and after the Effective Date, the exclusive right to purchase and take delivery of, all Landfill Gas produced and recovered from the Landfill which shall be delivered to Respondent at the Delivery Point, to process, measure, and filter to produce and sell all RNG processed in the RNG Facility. Notwithstanding the foregoing, the rights granted to Respondent by this Agreement are limited to Landfill Gas only, and Respondent shall have no right, title, or interest in or to the oil, gas, or other minerals in, under or that may be produced from the land covered by the Landfill. Notwithstanding the foregoing, Respondent shall have no obligation to accept, or take title to, Landfill Gas that is not Processable Gas.

2.2 Purchase and Sale of Processable Gas.

(a) Respondent shall notify [Short name] in writing when it requires that [Short name] begin delivering Landfill Gas to Respondent at the Delivery Point pursuant to this Agreement.

From and after the date specified in such notice, [Short name] shall make available to Respondent at the Delivery Point all Landfill Gas from the Landfill, and Respondent shall purchase all Landfill Gas that is Processable Gas, in each case up to one hundred percent (100%) of the Design Capacity of the RNG Facility. Management and destruction of Landfill Gas that is not Processable Gas remains the responsibility of [Short name].

(b) Title to, and control and possession of Landfill Gas sold and purchased hereunder shall transfer to Respondent at the Delivery Point. [Short name] assumes full responsibility and liability for and shall indemnify and hold harmless Respondent from and against any and all claims and losses resulting from and/or caused by the Landfill Gas prior to the Delivery Point, except to the extent resulting from Respondent’s negligence, willful misconduct, violation of Applicable Law, or fraud. Respondent assumes full responsibility and liability for and shall indemnify and hold harmless [Short name] from and against any and all Losses resulting from and/or caused by the Landfill Gas at and after the Delivery Point, except to the extent resulting from [Short name]’s gross negligence, willful misconduct, violation of Applicable Law or fraud. The indemnities set forth in this Section 2.2(b) shall survive the termination or expiration of this Agreement.

2.3 Warranty of Title.

(a) [Short name] represents and warrants that, as of the Effective Date, it will have good title to all Landfill Gas delivered hereunder, free and clear of liens and encumbrances.

(b) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE

PARTIES AGREE THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND

FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS

OR IMPLIED, ARE EXCLUDED FROM THIS AGREEMENT AND DO NOT APPLY TO THE

LANDFILL GAS SOLD HEREUNDER. RESPONDENT IS ACCEPTING THE LANDFILL

GAS, LANDFILL GAS QUANTITIES, AND THE EXISTING PORTIONS OF THE

COLLECTION SYSTEM “AS IS,” “WHERE IS”. To the extent required by Applicable Laws to be operative, the disclaimers of certain warranties contained in this Section 2.3(b) are “conspicuous disclaimers” for purposes of any Applicable Laws.

2.4 Ownership and Operation of the Collection System.

(a) Ownership During the Term. [Short name] has exclusive ownership and control of the Collection System (which excludes the RNG Facility and Respondent-owned facilities ancillary to the RNG Facility up to the Delivery Point). [Short name] shall, at its own expense, be responsible for maintaining, operating, improving, repairing, and expanding the Collection System up to the Delivery Point as necessary to allow it to conform with Applicable Laws and general industry standards, and to supply Processable Gas.

(b) Ownership After the Term. Upon expiration or termination of this Agreement, all right, title, and interest in the Collection System and to any improvements that are affixed to and become part of the real property at the Landfill, made by or for the benefit of Respondent in connection with the Collection System shall automatically transfer to [Short name] without any further action or compensation, free and clear of any liens, claims or encumbrances other than those created by [Short name]. The Parties expressly acknowledge and agree that notwithstanding anything to the contrary herein, upon the expiration or earlier termination of this Agreement, Respondent shall have exclusive ownership of all personal property located at the Leased Site (and not being part of the Collection System), including, but not limited to all equipment comprising the RNG Facility, spare parts and consumables. Respondent shall execute such customary documents as reasonably requested by [Short name] to memorialize [Short name]’s ownership of the Collections System following expiration of the Term.

2.5 Nature of Granted Rights. For the Term of this Agreement, as between [Short name] and Respondent, Respondent (i) has exclusive control over and responsibility for, the operation, maintenance and repair of the RNG Facility, (ii) holds legal and equitable title to all Landfill Gas generated by the Landfill, subject to the terms of Section 2.6 Excess Landfill Gas, (iii) is the owner of the RNG Facility for tax purposes, and, subject to Section 7.4, is entitled to any tax credits, benefits and depreciation with respect to such RNG Facility, and (iv) has an insurable interest in the RNG Facility and risk of loss with regard to the same. In the event that Respondent obtains an insurable interest in the Collection System, [Short name] shall be named as Additional Insured relative to the Collection System.

2.6 Excess Landfill Gas.

(a) If at any time during the Term, [Short name] is collecting and is able to deliver to the Delivery Point, a minimum monthly average of xxxx SCFM of Processable Gas in excess of the Design Capacity for nine (9) consecutive months that Respondent is unable to process in the RNG Facility (the “Excess Increment”) as measured and documented through combustion in the Flare Stations, [Short name] will provide written notice to Respondent as to the existence of such Excess Increment. Respondent shall have the option to decline to accept the Excess Increment or to commit to expand the Design Capacity of the RNG Facility sufficient to accept the Excess Increment. If Respondent elects to expand the Design Capacity of the RNG Facility, Respondent shall provide written notice of such election within ninety (90) days after delivery of the Excess Increment notice to [Short name] and Respondent shall promptly commence such expansion, with such expansion period not to exceed eighteen (18) months, provided, however, that in the event Respondent has timely applied for all required permits and is using commercially reasonable efforts to have such permit applications processed and approved, such period shall be extended for such period of time as necessary to allow Respondent to obtain permits necessary for the expansion (the “Excess Option Period”). Respondent shall immediately commence processing of the Excess Increment upon completion of an expansion of the RNG Facility. Any modifications or expansion of Design Capacity of the RNG Facility shall be done in accordance with design plans which shall be submitted to [Short name] for review and approval, such approval not to be unreasonably withheld, conditioned, or delayed. Upon the commencement of any construction and until such construction is completed, Respondent shall report to [Short name] monthly on the status of the construction of the modifications or expansions of the Design Capacity of the RNG Facility.

Respondent shall design, construct, maintain, repair, operate, improve and preserve any such expansions or modifications at all times in in conformity with Applicable Laws, general industry standards, and the terms and conditions of the Site Lease and this Agreement.

(b) If Respondent does not elect to expand the Design Capacity of the RNG Facility, or at the conclusion of the Excess Option Period Respondent has not increased its Design Capacity to utilize the Excess Increment, [Short name] may utilize the Excess Increment (and any other future Excess Increment) for any and all purposes, including, without limitation, making long-term commitments with respect to such Excess Increment, and Respondent shall not have any priority with respect to such Excess Increment that is subject to the Excess Option Period. However, for the avoidance of doubt, Respondent shall maintain first priority rights to all available Landfill Gas collected to satisfy the Design Capacity of the RNG Facility through the Term of this Agreement.

ARTICLE 3. CERTAIN COVENANTS, PERMITS, AUTHORIZATIONS,

OPERATIONS, MAINTENANCE AND CONSTRUCTION OF

FACILITIES

3.1 Permits.

(a) [Short name] Permits. [Short name] shall, during the Term, use commercially reasonable efforts to obtain and maintain all permits, authorizations, easements, and rights of way required for disposal of waste at the Landfill and the performance of its obligations hereunder;

provided, however, that in the event that [Short name] is required to obtain any new permit or authorization solely as a result of the development of the RNG Facility, such permits and authorization shall be obtained and maintained at the expense of Respondent.

(b) Respondent Permits. Respondent shall, during the Term, use commercially reasonable efforts to obtain in a timely manner and thereafter maintain all permits, authorizations, easements, and rights of way necessary to construct and operate the RNG Facility and the performance of its obligations hereunder. In the event [Short name]’s permits for the Collection System, Flare Stations or Landfill are required to be modified as a result of Respondent’s activities at the Landfill, such modifications shall be at [Short name]’s sole expense.

(c) Cooperation. [Short name] and Respondent shall use commercially reasonable efforts to assist one another in the obtaining and maintaining of permits for the Landfill and RNG Facility, including without limitation, by coordinating and maintaining proper record keeping for permits and authorizations. Respondent and [Short name] agree to work together in order to successfully permit the RNG Facility without impacting the operations and permitting requirements for the Landfill.

(d) Subcontractors. In the event that Respondent hires or retains the services of a third Party to perform any of its obligations hereunder, all such third Parties shall be licensed and qualified in accordance with Applicable Laws and professional standards.

3.2 Construction and Development of the RNG Facility.

(a) Respondent shall, at its sole cost and expense, design, construct, operate, maintain and repair the RNG Facility to be located on the Leased Site, in accordance with this Agreement and the Site Lease. Prior to commencement of construction of the RNG Facility, Respondent shall submit its design plans for the RNG Facility to [Short name] for review and approval of the design of the RNG Facility that is not proprietary to Respondent, such approval not to be unreasonably withheld, conditioned, or delayed. Unless [Short name] delivers written notice to Respondent of its objection to the design plans within ten (10) Business Days of receipt thereof, [Short name] shall be irrevocably deemed to have accepted such design plans. Respondent shall design, construct, maintain, repair, operate, improve and preserve the RNG Facility and the Leased Site at all times in good working order and a neat and clean condition, ordinary wear and tear excepted, and in conformity with Applicable Laws, general industry standards, the terms and conditions of the Site Lease, this Agreement or any Ancillary Agreement, including, without limitation, the utilization at the RNG Facility of commercially proven treatment technologies capable of successfully processing Processable Gas into pipeline quality gas. To the extent that Respondent needs access to the Landfill in connection with the design, construction, maintenance, operation, repair, or improvement of the RNG Facility, such access shall be subject, in all cases, to [Short name]’s current policies and procedures for access to the Landfill, which [Short name] shall provide to Respondent.

(b) Respondent shall use commercially reasonably efforts to achieve Commercial Operations by the Commercial Operations Target Date and not later than the Commercial Operations Deadline.

(c) Until the Commercial Operations Date, Respondent shall report to [Short name] monthly on the status of the construction of the RNG Facility.

(d) [Short name] shall have the option of sending Respondent a Notice of Default if Respondent fails to achieve the Commercial Operations Date by the Commercial Operations Deadline. In achieving the Commercial Operations Date, the Parties agree that the Commercial Operations Deadline shall be extended on a day-for-day basis for any day of delay resulting from

(i) an event of Force Majeure, (ii) a breach or default by [Short name]; or (iii) [Short name] requested changes to the design of the RNG Facility that causes a delay in initiation of construction of the RNG Facility.

(e) Respondent may extend the Commercial Operations Deadline for purposes of avoiding the termination of this Agreement for a period up to one (1) year if it is diligently continuing its efforts to develop the RNG Facility. After the one-year period, any further extension of the Commercial Operations Date shall be at the sole and absolute discretion of [Short name].

3.3 Operation of Landfill and RNG Facility.

(a) [Short name]’s Operations. [Short name] shall not interfere with the operation and use of the RNG Facility. [Short name] shall operate the Landfill in compliance with all Applicable Laws and general industry standards and in accordance with the terms and provisions of this Agreement and the Ancillary Agreements.

(b) Respondent’s Operations. Respondent shall not unreasonably interfere with the operation and use of the Landfill by [Short name]; provided, however, that the performance of Respondent’s obligations under this Agreement shall not be deemed a breach of this Section 3.3(b).

Respondent shall operate the RNG Facility in compliance with all Applicable Laws and general industry standards, applicable manufacturer specifications and the terms and provisions of this Agreement.

(c) Management of the Landfill and Collection System. Notwithstanding any provision of this Agreement to the contrary, Respondent recognizes, understands and agrees that [Short name] must and shall be entitled to exercise unfettered management, maintenance and operation of the Landfill and the Collection System (up to the Delivery Point), and while [Short name] and Respondent will meet regularly to discuss operational issues affecting RNG Facility operations, the parties understand and agree that the Landfill and Collection System (up to the Delivery Point) will be managed, maintained and operated in [Short name]’s absolute discretion.

3.4 Capacity. Respondent and [Short name] shall meet at least annually to discuss the Collection System including Landfill Gas flow, Landfill Gas quality and consistency, and projections of waste intake (amount and type). Respondent shall use commercially reasonable efforts to increase the Design Capacity of the RNG Facility subject to and based on the proving-out of sustainable production of Processable Gas in Commercial Quantities as mutually determined by the Parties, and in accordance with Section 2.6 “Excess Landfill Gas”.

3.5 Collection System Expansions.

(a) [Short name] shall be responsible for the capital costs of the modification and installation of expansions to the existing Collection System (up to the Delivery Point) sufficient to ensure compliance of the Collection System with the requirements of Applicable Laws during the Term. [Short name] shall design, construct, maintain, repair, operate, improve and preserve any such expansions or modifications at all times in conformity with Applicable Laws, general industry standards, and the terms and conditions of this Agreement and the Ancillary Agreements.

3.6 Collection System Operations.

(a) [Short name], at its sole cost and expense, is responsible for the operation and maintenance of the Collection System up to the Delivery Point, including the performance of wellfield tuning and balancing, routine and non-routine maintenance and system remediation.

[Short name] will, at its sole cost and expense, operate and maintain the Collection System up to the Delivery Point during the Term to provide for collection of Landfill Gas in accordance with Environmental Laws.

(b) [Short name] is responsible for the repair or replacement of any portion of the Collection System damaged or destroyed as the result of its own actions including, but not limited to, placement of waste or landfill cover maintenance activities. [Short name] recognizes that gas collection systems at landfills may be subject to wear and tear through the natural settlement associated with landfills. [Short name] is responsible for repairing any damage caused to the Collection System as a result of normal wear and tear.

3.7 Condensate. [Short name] will accept the Condensate generated from the RNG Facility and returned to the Landfill at no cost to Respondent; provided, however, in the event Condensate contains any hazardous or toxic liquids (i) resulting exclusively from the upgrading process of the

RNG Facility, and (ii) such hazardous or toxic liquids are not pre-existing from the Landfill Gas, then such hazardous or toxic liquids be shall be treated or disposed by Respondent at Respondent’s cost.

3.8 Spent Medias. Spent Medias from RNG Facility will be returned to the Landfill Site for disposal, at no cost to Respondent; provided, however, in the event Spent Medias contain any hazardous or toxic filtration medias (i) resulting exclusively from the upgrading process of the RNG Facility, and (ii) such hazardous or toxic filtration medias do not result from the Landfill Gas, then such hazardous or toxic filtration medias shall be treated or disposed by Respondent at Respondent’s cost.

3.9 Flare Stations Operations. [Short name] shall, at its sole cost and expense, be responsible for the routine operation and all maintenance of any Flare Stations owned by [Short name] and used to combust Landfill Gas at the Landfill during the Term. [Short name] shall be responsible for installing additional or replacement Flare Stations during the Term to the extent required by Applicable Laws.

3.10 Environmental Compliance. Respondent shall operate the RNG Facility and otherwise perform its obligations hereunder in compliance with all Applicable Laws, including permits issued thereunder.

3.11 Water and Restroom Access. [Short name] will provide Respondent employees and visitors with access to potable water and restrooms as may be available at [Short name] facilities to [Short name] employees during the Landfill’s normal business hours.

3.12 Notice of Violations. If [Short name] or Respondent receives a notice from a Government Entity that the Landfill or RNG Facility is in violation of Applicable Laws, then [Short name] or Respondent (as applicable) shall promptly notify the other Party of such notice in writing (and attach a copy of such notice of violation). Upon receipt of such notice, the responsible Party shall promptly investigate the cause of the allegation and notify the other Party (a) of the corrective action, if applicable, that it intends to take, including timing or (b) that it did not violate the foregoing obligations, including reasonable details as to why it is not responsible for the cause of the allegation, and what it plans to do to defend the notice. To the extent applicable, the corrective action shall be completed within such period of time as set by Applicable Laws. [Short name] or Respondent shall notify the other Party of any public odor nuisance complaint received or notice received from a Government Entity that indicates a violation of Applicable Laws. [Short name] and Respondent will work together to identify the source of all odor complaints and resolve them in such period of time as set by Applicable Laws or ordinance.

ARTICLE 4. RECORDS; AUDIT RIGHTS

4.1 Agreement to Maintain Records. Respondent shall maintain during the Term and for a period of two (2) years following the Term, accurate and complete books, records, and other documents (including computer files and supporting orders and invoices) to document the amount and calculations of, as applicable, Royalty Payments payable to [Short name] pursuant to and during the term of this Agreement. For the avoidance of doubt, the foregoing shall also include records pertaining to gas quality measurements in accordance with Exhibit 3. Respondent shall maintain the books, records, and other documents in conformance with generally accepted accounting principles. Such books, records, and other documents shall be kept at Respondent’s principal place of business.

4.2 Audit Rights. On ten (10) Business Days’ notice during the Term and within two (2) years after the expiration or earlier termination of this Agreement, [Short name] or its representatives may, at its expense, audit and copy from Respondent its books, records and other documents (including computer files and supporting orders and invoices) directly related to Royalty Payments under Section 7 and the guaranteed performance under Section 5 as necessary to verify Respondent’s adherence to the Agreement’s terms and conditions, including, without limitation, Article VI. [Short name] may conduct any audit under this Section 4.2 at any time during Respondent’s regular business hours on Business Days at Respondent’s principal place of business and shall not unreasonably interfere with Respondent’s course of business. Respondent shall cooperate with [Short name] in conducting any such audit. [Short name] and its representatives shall keep all information obtained during any such audit confidential pursuant to and in accordance with Section 15.6.

ARTICLE 5. GUARANTEED PERFORMANCE

5.1 Failure to Operate the RNG Facility at the Availability Guaranteed Rate. Commencing on January 1 of the calendar year after the Guarantee Start Date and for each calendar year thereafter during the Term, in the event Respondent fails to operate the RNG Facility at or above the Availability Guaranteed Rate (as defined in Exhibit 4) over the applicable calendar year (an “Availability Failure”), Respondent shall pay to [Short name] the amount of $xxxx (the “Availability Liquidated Damages Rate”) for each complete percentage point of Availability Rate by which the actual Availability Rate underperforms the Availability Guaranteed Rate, up to a maximum amount of $xxxx per calendar year (the “Availability Annual LD Cap”). Payment of liquidated damages by Respondent under this Section 5.1 shall be [Short name]’s sole and exclusive remedy and Respondent’s sole liability for failure to operate the RNG Facility at or above the Availability Guaranteed Rate. Respondent shall not assert in any dispute resolution process or in any court, arbitration, or other proceedings that the liquidated damages set forth in this Section 5.1 are a penalty or are otherwise void or unenforceable. Payment of liquidated damages by Respondent shall not relieve Respondent of its other obligations and responsibilities under this Agreement.

ARTICLE 6. TERM; TERMINATION

6.1 Term. The Term of this Agreement shall begin on the Effective Date and shall continue in effect until the earlier of (i) twenty (20) years from the Commercial Operations Date, or (ii) the earlier termination, for any reason, of this Agreement. The “Term” of this Agreement may be extended by two (2) five (5) year extensions upon notice from Respondent to [Short name] no later than six (6) months prior to the termination of the initial Term or first extension Term, as applicable.

6.2 [Short name]’s Right to Terminate. Subject to the cure periods set forth in this Section 6.2, [Short name] may terminate this Agreement and the Ancillary Agreements by written notice to Respondent as [Short name]’s sole remedy, upon the occurrence of any of the following:

(a) Respondent fails to perform any material obligation under this Agreement or any Ancillary Agreement after written notice and a reasonable opportunity to cure;

(b) The RNG Facility has not commenced Commercial Operations on or before the Commercial Operations Deadline;

(c) Respondent fails to operate the RNG Facility for a period of one hundred eighty

(180) consecutive days, except in the case of a Force Majeure or [Short name] caused curtailment;

or

(d) There shall have been filed against Respondent or its properties any petition or other request for relief seeking an arrangement, receivership, reorganization, liquidation, or similar relief under bankruptcy or other laws for the relief of debtors and the same is not withdrawn or dismissed within sixty (60) days after the filing thereof, or Respondent makes any such filing or makes any assignment for the benefit of creditors or other arrangement with creditors or admits in writing its inability to pay its debts as they become due; or

(e) Any representation or warranty made by Respondent in this Agreement proves to have been false or erroneous in any material respect at the time it was made or deemed made.

This Agreement shall terminate thirty (30) days after Respondent’s receipt of [Short name]’s notice that any of the above has occurred unless Respondent cures its failure to perform or resumes performance of its obligations hereunder before the applicable termination date;

provided, however, that if such failure cannot be cured within thirty (30) days and with the exception of subsection (b), such failure shall not result in a right to terminate if Respondent commences to cure such failure within such thirty (30) days and thereafter diligently pursues the cure to completion within one year, provided however if such cure is not completed within one year, then [Short name] shall, as [Short name]’s sole remedy, have the right to terminate.

6.3 Respondent’s Right to Terminate. Subject to the cure periods set forth in this Section 6.3, and in addition to any remedies available to Respondent at law or in equity, Respondent may terminate this Agreement by written notice to [Short name], upon the occurrence of any of the following:

(a) [Short name] fails to perform any material obligation under this Agreement and any Ancillary Agreement;

(b) [Short name] delivers less than the equivalent of 60% of the Design Capacity of Processable Gas at 50% methane over a calendar year;

(c) There shall have been filed against [Short name] or its properties any petition or other request for relief seeking an arrangement, receivership, reorganization, liquidation, or similar relief under bankruptcy or other laws for the relief of debtors and the same is not withdrawn or dismissed within sixty (60) days after the filing thereof, or [Short name] makes any such filing or makes any assignment for the benefit of creditors or other arrangement with creditors or admits in writing its inability to pay its debts as they become due; or

(d) Any representation or warranty made by [Short name] in this Agreement proves to have been false or erroneous in any material respect at the time it was made or deemed made.

This Agreement shall terminate thirty (30) days after [Short name]’s receipt of Respondent’s notice that any of the above has occurred unless [Short name] cures its failure to perform or resumes performance of its obligations hereunder before the applicable termination date; provided, however, that if such failure cannot be cured within thirty (30) days, such failure shall not result in a right to terminate if [Short name] commences to cure such failure within such thirty (30) days and thereafter diligently pursues the cure to completion within one-hundred eighty (180) days, provided however if such cure is not completed within one-hundred eighty (180) days, then Respondent shall, have the right to terminate.

6.4 Economic Viability. Upon one hundred and eighty (180) days’ written notice to [Short name], Respondent may, in its sole discretion, surrender and terminate this Agreement without liability if Processable Gas cannot be or is not being recovered from the Landfill in Commercial Quantities for a period of at least twelve (12) consecutive months during the Term, or upon thirty

(30) days’ notice from Respondent to [Short name] that (i) the Interconnecting Utility has not completed construction of fully operational interconnection facilities to the RNG Facility 3 months before the Commercial Operational Deadline, or (ii) in Respondent’s reasonable judgement, Interconnecting Utility would be unlikely to complete construction by such date. In the event of a termination of this Agreement under this Section 6.4, Respondent shall at its option have the right to remove all or part of the RNG Facility components delivered to or installed at the Site. Upon termination of this Agreement pursuant to this Section 6.4, the Ancillary Agreements shall likewise terminate and Respondent shall be relieved of all obligations as to [Short name], except for the post-termination obligations of Respondent set forth in this Agreement or in an Ancillary Agreement. Upon any termination pursuant to this Section 6.4, Respondent shall retain such rights of way and easements over, upon and across the Landfill to the extent any such rights of way are necessary for Respondent to comply with any post-termination obligations hereunder and only for so long as each such right of way shall be necessary for Respondent to comply with any post-termination obligations hereunder or pursuant to this Agreement and the Ancillary Agreements.

ARTICLE 7. ROYALTY, BILLING AND PAYMENT

7.1 Royalty.

(a) Respondent shall pay [Short name] Royalty Payments as set forth on Exhibit 1 with respect to Processable Gas sold as RNG to an Off-take Purchaser or used by Respondent.

Respondent shall forward to [Short name] the monthly production reports delivered by Respondent’s renewable natural gas and environmental attributes Off-taker Purchaser.

(b) Each Billing Period, Respondent reserves the right to adjust the Royalty Payments by deducting an electricity price correction equal to EC x (E – E0), where:

• EC is the RNG Facility electricity consumption (in MWh) during such Billing Period;

• E is the average price applicable to the RNG Facility and over such Billing Period; and

• E0 is the reference value of the electricity price, which value is $xxxx per MWh.

(c) Each calendar year, Respondent reserves the right to adjust the Royalty Payments by deducting an hydrogen sulfide incremental processing costs correction equal to UPH2S x (SQH2S – SQH2S0), where:

• UPH2S is the H2S treatment unit price, which value is $xxxx per pound (lb) of treated H2S on the Effective Date (UPH2S0);

• UPH2S is adjusted each calendar year by applying the following revision formula UPH2S = UPH2S0 x CPI / CPI0; and

• SQH2S is the quantity of H2S treated by Respondent over the calendar year, expressed in pounds (lb) of H2S.

• SQH2S0 is the reference maximum quantity of H2S anticipated to be treated over a 12-month period, which value is xxxx pounds (lb).

7.2 Environmental Attributes. With respect to any Environmental Attributes which may be available to either [Short name] or Respondent in connection with any performance under, pursuant to, or in respect of this Agreement, including without limitation any RINs or LCFS Credits, [Short name] and Respondent hereby agree that Respondent shall be entitled to claim all benefits arising from the ownership of such Environmental Attributes but that all revenues associated from the monetization of such Environmental Attributes, including any Environmental Attributes sold separately from the Landfill Gas, shall be included in the calculation of the Royalty Payment owed to [Short name]. Notwithstanding the above, [Short name] shall retain Environmental Attributes to the Landfill Gas until Landfill Gas is introduced to the RNG Facility.

7.3 Tax Credits; Grants. Respondent shall retain all rights to any federal income tax credits associated with the RNG Facility and any future expansions during the Term. In addition, Respondent shall retain the benefit of any federal, state or local grants, incentives or other awards related to the RNG Facility.