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RESOLUTION NO. 12,379
3 A RESOLUTION TO AUTHORIZE THE CITY MANAGER TO ENTER INTO AN
4 AGREEMENT WITH JOHNSON CONTROLS, INC. FOR JOHNSON CONTROLS,
5 INC. TO INSTALL, OPERATE AND MAINTAIN A LANDFILL GAS -TO- ENERGY
6 SYSTEM, AND TO PROVIDE SERVICES REGARDING THE LANDFILL GAS-TO-
7 ENERGY SYSTEM, WHICH WILL RESULT IN PROJECT BENEFITS AS SET FORTH
8 IN THE ASSURED PERFORMANCE GUARANTEE; AND FOR OTHER PURPOSES.
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10 WHEREAS, the City owns and operates a solid waste management facility ( "Landfill ") and
11 desires to collect and sell methane gas from the Landfill ( "Landfill Gas "), and
12 WHEREAS, in May of 2004, the City issued Request for Qualifications ( "RFQ ") #4247 for a
13 Landfill Gas -to- Energy System for the City's Landfill, and
14 WHEREAS, Johnson Controls, Inc. ( "JCI ") was the only respondent to this RFQ, and JCI's
15 response was deemed responsible and responsive, and
16 WHEREAS, the City desires to enter into an agreement with JCI for JCI to install, operate and
17 maintain a Landfill Gas system at the City's Landfill, as delineated in the Scope of Work
18 Schedule, which will result in Project Benefits as set forth in the Assured Performance
19 Guarantee, and
20 WHEREAS, after installation of the Landfill Gas system, JCI agrees to provide the services
21 identified in the Services Schedule that include services that are necessary to monitor, measure
22 and achieve the identified Project Benefits, subject to the terms of the Assured Performance
23 Guarantee.
24 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE
25 ROCK, ARKANSAS:
26 Section 1. The City Manager is authorized to enter into an Agreement with Johnson
27 Controls, Inc., in substantially the same form as the agreement attached as Exhibit A, whereby
28 Johnson Controls, Inc. will install, operate and maintain a Landfill Gas system, as delineated in
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1 the Scope of Work Schedule, which will result in Project Benefits as set forth in the Assured
2 Performance Guarantee.
3 Section 2. After installation of the Landfill Gas system, JCI agrees to provide the services
4 identified in the Services Schedule that include services that are necessary to monitor, measure
5 and achieve the identified Project Benefits, subject to the terms of the Assured Performance
6 Guarantee.
7 Section 3. The Installation Term of this Agreement shall begin on the Commencement Date,
8 which shall be the date of execution of the Agreement by both parties. If the Work is divided
9 into phases or individual projects for which individual prices have been negotiated, then
10 separate Commencement Dates shall apply to each phase or individual project, and each
11 Commencement Date for each phase or individual project shall be acknowledged by the parties
12 in writing. The Work shall be completed by the Substantial Completion Date, which shall be the
13 earlier of:
14 (a) the date on which the City executes a Certificate of Substantial Completion; or
15 (b) ten (10) months after the Commencement Date, subject to adjustments as set
16 forth in Paragraph 3, Delays and Force Majeure, of the Agreement.
17 If the Work is divided into phases or individual projects for which individual prices have
18 been negotiated, then separate Substantial Completion Dates shall apply to each phase or
19 individual project, and each Substantial Completion Date for each phase or individual project
20 shall be acknowledged by the parties in writing. Substantial Completion means that JCI has
21 provided sufficient materials and services to permit the operation of the Equipment or achieve
22 the intended Project Benefits. The Services shall commence on the Substantial Completion Date
23 and shall continue for fifteen (15) years thereafter. The term of the Assured Performance
24 Guarantee shall coincide with the term of the Services Schedule, and the Payment Term shall be
25 I defined in Price and Payment Term Schedule.
26 Section 4. Severabi/ity. In the event any title, section, paragraph, item, sentence,
27 clause, phrase, or word of this resolution is declared or adjudged to be invalid or
28 unconstitutional, such declaration or adjudication shall not affect the remaining portions of the
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resolution which shall remain in full force and effect as if the portion so declared or adjudged
invalid or unconstitutional was not originally a part of the resolution.
Section 5. Repealer. All laws, ordinances, resolutions, or parts of the same, that are
inconsistent with the provisions of this resolution, are hereby repealed to the extent of such
inconsistency.
ADOPTED: November 6, 2006 +
ATTEST: APPROVED:
Na cy Wood/,City Clerk
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12 APPROVED AS TO LEGAL FORM:
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15 Thomas M. Carpenter, City A rney
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[PAGE 3 OF 391
Dailey, Mayor
1 EXHIBIT A
2 PERFORMANCE CONTRACT
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PROJECT:
JOHNSON CONTROLS, INC. ( "JCI ")
10801 Executive Center Drive, Suite 103
Shannon Building
Little Rock, Arkansas 72211
Attn: Melanie Hayes, Account Executive
City of Little Rock Arkansas ( "Customer ", or "City of Little Rock ")
500 West Markham Street
Little Rock, Arkansas 72201
Attn: Bruce Moore, City Manager
City of Little Rock, Department of Public Works, Division of Solid Waste
Services, Landfill Gas -to- Energy System (Direct Use) for Class 1 Landfill, Ironton Cutoff
Road.
AGREEMENT DOCUMENTS: In addition to the terms and conditions of this Performance Contract,
incorporated into this Agreement are the following (check as applicable).
X Schedule 1 —Scope of Work Schedule
X Schedule 2— Assured Performance Guarantee Schedule
X Exhibits 1 through 2 - Guarantee Terms
X Exhibits 3 through 6 - Supporting Documentation
X Schedule 3— Services Schedule
X Schedule 4 —Price and Payment Terms Schedule
X Schedule 4a— Payment Schedule
X Schedule 4b— Project Schedule
X Exhibit A - Collection &t Flare, Dehydration /Compression It Transmission System Layout
X Exhibit B - Landfill Gas Specification
X Exhibit C - Landfill Gas Content Analysis
X Exhibit D Executed Copy of Long -Term Utility Purchase Agreement
1. SCOPE OF THE AGREEMENT. JCI agrees to install identifiable improvements as delineated in
Scope of Work Schedule (Schedule 1) which will result in Project Benefits as set forth in the
Assured Performance Guarantee (Schedule 2). After installation of the improvement measures, JCI
agrees to provide the services identified in Services Schedule (Schedule 3), that include services
that are necessary to monitor, measure, and achieve the identified Project Benefits, subject to the
terms of the Assured Performance Guarantee (Schedule 2). The Customer MUST provide prior
approval of all equipment, controls and methods of installation before purchase or installation. In
addition the Customer MUST provide approval for all specifications of the system design, including
installation locations and methods, equipment types and locations, before purchase and
installation. JCI shall be entitled to rely on the accuracy of all information furnished by the
Customer, including without limitation the as -built drawings for the Landfill's construction, and the
Customer agrees to accept sole responsibility for any errors, omissions, inaccuracies or
inconsistencies contained in the information furnished by the Customer. The Customer agrees to
take all reasonable actions identified in this Agreement that are necessary to achieve the Project
Benefits identified. JCI shall supervise and direct the Work and Services and shall be solely
responsible for all construction means, methods, techniques, sequences, and procedures and for
coordinating all portions of the Work and Services under this Agreement. JCI shall be solely
responsible to pay for all labor, materials, equipment, tools, construction equipment and
machinery, transportation, and other facilities and services necessary for the proper execution and
[PAGE 4 OF 391
1 completion of the Work, whether temporary or permanent and whether or not incorporated or to
2 be incorporated in the Work and Services. The Customer's payments to JCI and its interest in the
3 Equipment will be based upon the terms of Schedule 4.
4 2. TERM. The Installation Term of this Agreement shall begin on the Commencement Date, which
5 shall be the date of execution of this Agreement by both parties. If the Work is divided into phases
6 or individual projects for which individual prices have been negotiated, then separate
7 Commencement Dates shall apply to each phase or individual project, and each Commencement
8 Date for each phase or individual project shall be acknowledged by the parties in writing. The
9 Work shall be completed by the Substantial Completion Date, which shall be the earlier of:
10 (c) the date on which the Customer executes a Certificate of Substantial Completion; or
11 (d) ten (10) months after the Commencement Date, subject to adjustments as set forth in
12 Paragraph 3 below.
13 If the Work is divided into phases or individual projects for which individual prices have been
14 negotiated, then separate Substantial Completion Dates shall apply to each phase or individual
15 project, and each Substantial Completion Date for each phase or individual project shall be
16 acknowledged by the parties in writing. Substantial Completion means that JCI has provided
17 sufficient materials and services to permit the operation of the Equipment or achieve the intended
18 Project Benefits. The Services shall commence on the Substantial Completion Date and shall
19 continue for fifteen (15) years thereafter. The term of the Assured Performance Guarantee (see
20 Schedule 2) shall coincide with the term of the Services Schedule (see Schedule 3). If for any
21 reason, the Customer cancels or breaches this Agreement, including but not limited to the Service
22 Schedule, the Assured Performance Guarantee shall automatically terminate. The Payment Term
23 shall be defined in Price and Payment Term Schedule (Schedule 4).
24 3. DELAYS AND FORCE MAJEURE. JCI shall not be responsible for any delay in the performance of the
25 Work resulting from events beyond JCI's control and without JCI's negligence. Events that shall be
26 deemed to be beyond the control of JCI shall be limited to: acts of God or the public enemy;
27 expropriation or confiscation of facilities by governmental or military authorities; war; riots;
28 floods, fires, explosions; bankruptcy of outside vendors, materialmen or suppliers; and delays in
29 deliveries resulting directly from any of the foregoing events. JCI shall provide the City of Little
30 Rock with immediate written notice of the existence, extent of, and reason for such delays. An
31 equitable adjustment in Substantial Completion Date may be made as a result.
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4. ACCESS. Customer is responsible to provide JCI and its subcontractors reasonable access to all
facilities and properties that are in the Customer's control which are subject to the Work and
Services contained in this Agreement. Customer further agrees to assist JCI and its subcontractors
to gain access to facilities and properties that are not controlled by the Customer which are
subject to the Work and Services contained in this Agreement. If access cannot be provided, JCI's
obligations under this Agreement, including without limitation the Substantial Completion Date,
will be suspended until such access is provided. Suspension of JCI's duties hereunder will not
cancel or suspend any of the City of Little Rock's obligations under this Agreement unless the
denial of access was caused by events beyond the control of the City of Little Rock.
5. CERTIFICATE OF SUBSTANTIAL COMPLETION. The Certificate of Substantial Completion to be
executed by the Customer shall include:
a. an acknowledgement by the Customer of the improvements substantially completed and
the Substantial Completion Date for each Improvement;
b. an acknowledgment by the Customer of receipt of manuals and training provided by JCI
under the Agreement;
c. an acknowledgement by the Customer of the warranty start date and warranty period;
d. a punchlist of items remaining to be completed by JCI.
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1 6. PERFORMANCE AND PAYMENT BONDS. JCI shall execute performance and payment bonds with
2 sureties acceptable to the City of Little Rock. Bonds shall be executed to the City of Little Rock for the
3 faithful performance and fulfillment of the installation of improvements and to include the protection
4 of the City of Little Rock from all liens and damages arising out of the work, and for the payment of all
5 labor and materials used in the work and the protection of the City of Little Rock from all liens and
6 damages arising therefrom. The performance and payment bonds shall be single multi -year bonds in
7 the amount equal to one hundred percent (100 %) of the investment of the improvements in the
8 facilities. In addition, JCI shall provide to the City of Little Rock a single multi -year bond for 100% of
9 the aggregate guaranteed savings over the agreed -upon term of financing. Multiple single -year bonds
10 shall not be acceptable.
11 7. TAXES, PERMITS, AND FEES. Except as specified herein, JCI shall be responsible for obtaining all
12 permits and related permit fees associated with the Work and Services. JCI shall pay sales,
13 consumer, use, and other similar taxes and shall secure and pay for the building permit and other
14 permits and governmental fees, licenses, and inspections necessary for proper execution. The
15 Customer shall be responsible for securing any necessary approvals, assessments, or zoning changes
16 and shall be responsible for real estate and personal property taxes where applicable. JCI makes
17 no representations regarding the tax implications or Customer's accounting treatment of this
18 Agreement.
19 8. WARRANTY. JCI warrants that materials and equipment furnished by JCI will be of good quality
20 and new; that the Work will be free from defects; and that the Work and Services will conform to
21 the requirements of the Agreement Documents. JCI warrants that the Work shall be free from
22 defects in material and workmanship arising from normal usage for a period of one year from the
23 Substantial Completion Date and that its Services will be free from defects in workmanship, design,
24 and material until the end of the Term, or for one year, whichever is earlier. Upon written notice
25 from the Customer, JCI shall, at its option, repair or replace the defective Work or re- perform
26 defective Services. These warranties do not extend to any Work or Services that have been
27 abused, altered, misused, or repaired by the Customer or third parties without the supervision of
28 and prior written approval of JCI; or if JCI serial numbers or warranty date decals have been
29 removed or altered.
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31 THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
32 BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.
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34 Customer understands that JCI is a provider of services under this Agreement. JCI shall not be
35 considered a merchant or a vendor of goods. If JCI installs or furnishes a piece of equipment under
36 this Agreement, and that equipment is covered by a warranty from the manufacturer, JCI will
37 transfer the benefits of that manufacturer's warranty to Customer if this Agreement with Customer
38 terminates before the equipment manufacturer's warranty expires.
39 9. CLEANUP. JCI shall keep the premises and the surrounding area free from accumulation of waste
40 materials or rubbish caused by the Work and, upon completion of the Work, JCI shall remove all
41 waste materials, rubbish, tools, construction equipment, machinery, and surplus materials.
42 10. SAFETY. JCI shall be responsible for initiating, maintaining, and supervising all safety precautions
43 and programs in connection with the performance of the Work or Services. JCI shall comply with
44 all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities related
45 to safety of persons or property.
46 11. HAZARDOUS WASTE. Unless specifically noted in Schedule 1, JCI's obligations expressly exclude
47 any Work or Services of any nature associated or connected with the identification, abatement,
48 cleanup, control, removal, or disposal of hazardous wastes or substances, including but not limited
49 to asbestos, lead or PCBs, in or on the premises in which JCI will be required to perform Work.
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1 12. LANDFILL CONCERNS. The Work includes the placement of methane recovery wells in a Landfill.
2 During the operation of the Landfill, Customer has implemented a Hazardous Waste Exclusion Plan
3 for the Landfill, which includes procedures to minimize receipt and disposal of various hazardous
4 wastes in the Landfill. Customer has also maintained an Asbestos Management Plan, which requires
5 recording where asbestos has been placed in the Landfill in relation to an onsite survey control
6 system. The onsite survey control system was initially created during construction for as -built
7 surveys of waste cells and for recording the position of any asbestos or special waste materials
8 placed in the Landfill. JCI and its subcontractors will be placing the methane recovery wells
9 relying on information supplied to it by Customer regarding the construction of the waste cells, the
10 location of the cell components, such as liners, and the location of asbestos or special waste, as
11 well as on the belief that the Hazardous Waste Exclusion Plan has successfully prevented the
12 introduction of such waste into the Landfill. JCI and its subcontractors shall not be liable for any
13 damage or injuries occurring during the placement of methane recovery wells in the landfill to the
14 extent resulting from (a) any inaccuracies in information concerning the survey system, as- bunts,
15 asbestos placement, or special waste placement, or (b) any failure of the Hazardous Waste
16 Exclusion Plan to prevent the introduction of such wastes into the Landfill.
17 13. INSURANCE. Prior to commencing the Work, JCI shall provide a certificate of insurance with
18 Contractor showing its insurance coverage's and naming the City of Little Rock as an additional
19 insured with respect to liability arising out of operations performed for the City by or on behalf of
20 JCI to the extent of damages directly caused by the negligence of JCI.JCI shall maintain such
21 insurance in full force and effect at all times until the Work and Services have been completed, in
22 the following minimum amounts:
COVERAGES
Workmen's Compensation Insurance or self insurance,
including Employer's Liability
Comprehensive General
Liability Insurance, including Contractual
Comprehensive Automobile Liability
Insurance
LIMITS OF LIABILITY
Statutory
$5,000,000 One Occurrence,
$5,000,000 aggregate for Bodily Injury
Liability and $5,000,000 each occurrence
for Property Damage Liability. In
addition, Comprehensive General
Liability Insurance shall include coverage
for Personal Injury Liability, including
employment related suits.
$5,000,000 Each Aggregate. In
addition, JCI shall procure and maintain
in effect during the life of this
Agreement Comprehensive No -Fault
Automobile Liability Insurance with
residual limits of $5,000,000 aggregate
for Bodily Injury and Property Damage
Liability. Such coverage is to include
Employers Non -Owed and Hired Car
Liability and is to cover all vehicles
owned, leased, operated by or for or on
behalf of JCI.
$5,000,000 Combined
Single Limit
The above limits are obtained through primary and excess policies. Certificates of Insurance
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acceptable to Customer shall be filed with Customer prior to commencement of the work. These
certificates and the insurance policies required by this Agreement shall contain provisions that
coverages afforded under the policies will not be canceled or allowed to expire until at least thirty
(30) days' prior written notice has been given to Customer.
2 14. RISK ALLOCATION AND INDEMNITY.
4 (a) The Customer assumes all risk and liability for the use, operation, and storage of the
5 Equipment, and for injuries or death to persons or damage to property arising out of the use,
6 operation, or storage of the Equipment, except for any injuries or death to persons or damage
7 to property caused by the negligence of JCI, it employees, agents or assigns.
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JCI shall indemnify and hold harmless the Customer, its employees, agents, and assigns against
all claims, actions, damages, liabilities, and expenses, including attorney's fees, arising out of
or related to any claims of patent infringement and any claims of construction or materialman's
lien made by any subcontractor or materialman. JCI shall also indemnify and hold harmless the
Customer, its employees, agents, and assigns against all claims, actions, damages, liabilities
and expense, including attorney's fees, arising out of or related to personal injury or property
damage to the extent caused by JCI's negligence or willful misconduct in connection with the
performance of the Work. JCI and the Customer agree that JCI shall be responsible only for
such injury, loss, or damage caused by the intentional misconduct or the negligence act or
omission of JCI. The obligations of JCI and of the Customer under this paragraph are further
subject to paragraph 3 and 12 below.
(b) To the extent not specifically provided for in other sections of this Agreement, JCI will
indemnify and hold harmless the Customer, its employees, agents, and assigns against all
special, indirect, or consequential damages resulting from the negligent or willful misconduct
of JCI, its employees, agents, or assigns in performance of the Work or Services. JCI's
indemnity obligations under subsection (b) will be limited to $1 million dollars in the
aggregate.
(c) JCI's obligations under subsection (b) will be for a term of three (3) years from the date of
substantial completion, with options to renew and /or amend for additional terms over the
duration of the term of this Agreement.
(d) Notwithstanding anything set forth in this Agreement, the parties understand and agree that
the City shall not waive its tort immunity expressed in Ark. Code Ann. Sec. 21 -9 -301.
15. LIABILITY. If this Agreement covers fire safety or security equipment, the Customer understands
that JCI is not an insurer regarding those services. JCI shall not be responsible for any damage or
loss that may result from fire safety or security equipment that fails to perform properly or fails to
prevent a casualty loss. JCI is also not responsible for any injury, loss, or damage caused by
equipment that is not Covered Equipment, as defined in Schedule 3. However, JCI shall be
responsible for any and all injury, loss, or damage to non - covered equipment caused by Covered
Equipment.
16. JCI'S PROPERTY. All materials deemed proprietary by JCI and furnished by and used by JCI
personnel and JCI authorized subcontractors or agents at the installation site, including
documentation, schematics, test equipment, software, and associated media remain the exclusive
property of JCI. The Customer agrees not to use such proprietary materials for any purpose at any
time without the express written approval of JCI. The Customer agrees to allow JCI personnel and
JCI authorized subcontractors or agents to retrieve and to remove all such proprietary materials
remaining after installation of the LFG system and maintenance operations have been completed.
The Customer acknowledges that all JCI software included is proprietary and will be delivered only
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under the provisions of an appropriate Software License Agreement that will limit its use to the
system purchased under this Agreement.
17. MODIFICATIONS. Additions, deletions, and modifications to this Agreement, Exhibits and Schedules
may be made upon the mutual agreement of the parties in writing. The parties contemplate that
such modifications may include but are not limited to the installation of additional improvement
measures, energy conservation measures, facility improvement measures, and operational
efficiency improvements or furnishing of additional work and services within the identified
facilities, as well as other facilities owned or operated by the Customer. These modifications may
take the form of additional phases of work or modifications to the original scope of Work or
Services.
18. NOTICES. All notices or communications related to this Agreement shall be in writing and shall be
deemed served if and when sent by facsimile or mailed by certified or registered mail to JCI at the
address listed on page 1 of this Agreement and to JCI, ATTN: General Counsel - Controls, 507 East
Michigan Street, Milwaukee, Wisconsin, 53202, and to Customer at the address listed on page 1 of
this Agreement.
19. RATIFICATION. To the extent that JCI has actually performed work and services under this
Agreement after the start date of the Agreement but prior to the signing of this Agreement by the
parties, the work and services are hereby ratified by both parties and shall be compensated in
accordance with the terms and conditions of this Agreement.
20. NON- APPROPRIATION OF FUNDS. This Agreement shall terminate without penalty at such time as
appropriated funds are not available to satisfy the obligations of the City of Little Rock hereunder.
The failure of the City of Little Rock to make an appropriation in any given year shall not be
deemed a breach of this Agreement, nor give rise to any cause of action by JCI for legal or
equitable relief. The City of Little Rock shall, to the extent possible, give JCI written notice thirty
(30) calendar days prior to such termination.
21.
TERMINATION FOR CONVENIENCE. Upon thirty (30) calendar days' written notice to JCI, this
Agreement may be terminated by the City of Little Rock without penalty in accordance with this
clause in whole, or from time to time in part, whenever the City of Little Rock determines, in its
sole discretion, that such termination is in the best interest of the City. In the event of such
termination, the City of Little Rock will pay all reasonable costs associated with this Agreement
that JCI has incurred up to the date of termination; provided, however, that JCI shall not be
reimbursed for any anticipatory profits that have not been earned up to the date of termination.
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39 22. TRADE NAMES AND PATENT. Whenever an article of any class or materials or equipment is
40 specified by the trade name of any particular patentee, manufacturer, or dealer, or by reference
41 to the catalog of any such manufacturer, or dealer, it shall be taken to mean and specify the
42 articles or materials described or equal thereto in quality, finish and durability and equally as
43 serviceable for the purpose for which it is or they are intended. The City of Little Rock shall make
44 the decision as to whether the material or equipment offered is equal to those specified and the
45 decision of the City of Little Rock shall be final.
46 23. PATENT AND PATENT RIGHTS. JCI shall protect and save the City of Little Rock harmless against
47 all claims and actions brought against the City of Little Rock by reason of any actual infringement
48 upon patent rights in any material, process, machine or appliance used by JCI in the work.
49 24. LABOR LAWS AND ORDINANCES. JCI shall obey and abide by all the laws of the State of Arkansas
50 relating to the employment of labor and public work, and all ordinances and requirements of the
51 City of Little Rock regulating or applying to public improvements.
52 JCI agrees not to discriminate against any employee or applicant for employment, to be employed
53 in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges
[PAGE 9 of 391
I of employment, or any matter directly or indirectly related to employment, because of age, sex,
2 race, color, religion, national origin, or ancestry. JCI further agrees that every subcontract entered
3 into for the performance of this Agreement will contain provisions requiring nondiscrimination in
4 employment, as herein specified, binding each Subcontractor. Breach of this covenant may be
5 regarded as a material breach of this Agreement.
6 25. ASSIGNMENT OR SUBLETTING OF CONTRACT.
7 JCI shall obtain prior approval from the City of Little Rock before contracting with, or otherwise
8 hiring, any subcontractors to perform any portion of the work under this Agreement.
9 JCI shall be fully responsible to the City of Little Rock for the acts and omissions of JCI's
10 subcontractors and of persons either directly or indirectly employed by the subcontractors, as JCI is
11 for the acts and omissions of persons directly employed by JCI.
12 All subcontractors and material suppliers utilized on this project shall be experienced in the type
13 of work required by the project, reputable, qualified and shall be acceptable by the City of Little
14 Rock. JCI shall not award work to subcontractor(s) without prior written approval of the City of
15 Little Rock.
16 Nothing contained in this Agreement will create any contractual relationship between any
17 subcontractor or material supplier and the City of Little Rock.
18 Materials, supplies or equipment to be incorporated into the work shall not be purchased by JCI, or
19 any subcontractor or material supplier, subject to a chattel mortgage or under a conditional sales
20 contract or other agreement by which an interest is retained by the seller.
21 JCI shall ensure that the City of Little Rock receives lien waivers from all subcontractors and
22 material suppliers before work begins on the project. JCI shall give prior written notice to the
23 subcontractors and material suppliers providing work and materials on the project that states the
24 following: "According to Arkansas law, it is understood that no liens can be filed against public
25 property if a valid and enforceable payments and performance bond is in place. Regarding this
26 Project and Agreement, the valid and enforceable bonds are with SAFECO." JCI shall have each
27 subcontractor and material supplier execute a written receipt evidencing acknowledgment of this
28 statement.
29 26. COMPLIANCE WITH LAW AND STANDARD PRACTICES. JCI shall perform its obligations herein in
30 compliance with any and all applicable federal, state, and local laws, rules and regulations,
31 including applicable licensing requirements, in accordance with sound engineering and safety
32 practices, and in compliance with any and all reasonable rules of the City of Little Rock, Arkansas
33 relative to the Premises and the work performed pursuant to this Agreement. JCI shall be
34 responsible for obtaining all governmental permits, consents, and authorizations as may be
35 required to perform its obligations herein.
36 27. KEY PERSONNEL. Key personnel assigned to this project by JCI and its subcontractors shall not be
37 removed from this project without the prior written approval of the City of Little Rock. Such
38 approval may not be unreasonably withheld.
39 28. REPRESENTATIONS AND WARRANTIES OF JCI. JCI represents and warrants as follows:
40 a) JCI is familiar with all applicable laws and regulations pertaining to the Agreement.
41 b) JCI is duly organized, validly existing, presently in good standing and having all
42 necessary powers to enter into this Agreement and to do business in the State of
43 Arkansas.
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c) There is no pending or threatened labor dispute, strike or work stoppage affecting JCI's
business.
3 d) There is no suit, action, arbitration or legal, administrative, or other proceeding
4 pending, or to the best knowledge of JCI, threatened against JCI that would affect or
5 impair the performance of JCI under this Agreement.
6 e) JCI has obtained, or will obtain, all registrations, licenses, certificates of inspection,
7 reports, or other clearances required to be obtained of any governmental or other
8 agency, in order to enable it to fully perform the terms of this Agreement.
9 f) JCI has the right, power, legal capacity and authority to enter into and perform all its
10 obligations under this Agreement and no approval or consent of any person other than
11 that JCI is necessary to effect the execution and performance of this Agreement by JCI.
12 g) There are no other circumstances which would adversely affect JCI's ability to execute
13 this Agreement and fully perform its obligations herein.
14 h) The information contained in all documents, lists, policies and other writings furnished,
15 or to be furnished, to the City of Little Rock by, or on behalf of JCI is true and
16 accurate, and does not fail to include any statement of a material fact, the omission of
17 which would be misleading.
18 i) None of the representations or warranties made by JCI, or made in any certificate or
19 memorandum furnished, or to be furnished, to the City of Little Rock by, or on behalf
20 of JCI, contains or will contain any untrue statement of a material fact, or omit any
21 material fact, the omission of which would be misleading.
22 JCI shall, at JCI's sole cost and expense, provide the City of Little Rock with such evidence of the
23 accuracy of any and all representations and warranties herein contained as the City of Little Rock
24 may require. JCI shall, at JCI's sole cost and expense, provide the City of Little Rock with such
25 other evidence of JCI's compliance with the terms of this Agreement as the City of Little Rock may
26 require.
27 29. ADDITIONAL TERMS.
28
29 A. Any failure of JCI or the City of Little Rock to require strict performance by JCI or the City of
30 Little Rock, or any waiver by JCI or the City of Little Rock of any requirement under this
31 Agreement, does not consent to or waive any subsequent failure or breach by JCI or the City of
32 Little Rock.
33
34 B. In the event any section, subsection, subdivision, paragraph, subparagraph, item, sentence,
35 clause, phrase, or word of this Agreement is declared or adjudged to be invalid or
36 unconstitutional, such declaration or adjudication shall not affect the remaining provisions of
37 the Agreement, as if such invalid or unconstitutional provision was not originally a part of the
38 Agreement.
39
40 C. The captions and titles in this Agreement are for convenience only and shall not affect the
41 interpretation or meaning of this Agreement.
42
43 D. This Agreement is the full Agreement between JCI and the Customer as of the date it is signed.
44 All previous conversations, correspondence, agreements, or representations related to this
45 Agreement (including any Project Development Agreement) are not part of the Agreement
46 between JCI and the Customer and are superseded by this Agreement. No modifications are
47 binding unless made in writing and signed by both parties.
48
[PAGE 11 OF 391
1 E. This Agreement shall be construed in accordance with the laws of the state of the principal
2 place of Business of the Customer at the time of the execution of this Agreement, namely the
3 State of Arkansas. The venue shall be Pulaski County, Arkansas. For the term of this
4 Agreement, JCI will be available to the City of Little Rock for consultation, as a witness in any
5 trial or administrative matter, or as otherwise needed, pursuant to the terms of the Agreement
6 and subsequent addenda, approved by both parties in writing, and made a part of this
7 Agreement.
8
9 F. All reports, information, findings and other work products of JCI done pursuant to this
10 Agreement are not proprietary. Any methodology employed by JCI which was not created
11 because of this Agreement may be deemed proprietary and shall remain confidential, to the
12 extent permissible under Arkansas law, unless specific prior written approval for disclosure of
13 such information otherwise is given by JCI, or until such information is made public by the City
14 of Little Rock. JCI shall not own, possess, declare, or claim a copyright in or for any
15 information, material, drafts, writings, documents, or drawings of any nature whatsoever
16 produced pursuant to this Agreement. The parties expressly agree that the copyright to any
17 material produced pursuant to this Agreement is the exclusive right of the City of Little Rock.
18
19 G. JCI shall take all reasonable precautions to safeguard all City of Little Rock property entrusted
20 to JCI's custody or control.
21
22 H. JCI agrees to comply with the Arkansas Freedom of Information Act regarding disclosure of
23 records created under this Agreement that are subject to disclosure under that act. Such
24 records include, but are not limited to, the work product, memoranda and letters created for
25 this Agreement.
26
27 I. JCI agrees to comply with all applicable federal, state and local laws, regulations, and
28 ordinances and to require such compliance in contractual agreements with subcontractors. JCI
29 further agrees to comply with the requirements of the Americans with Disabilities Act and the
30 Equal Employment Opportunity Act, and regulations promulgated thereunder, and to require
31 such compliance in contractual agreements with subcontractors.
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J. The officials who executed this Agreement hereby represent and warrant that they have full and
complete authority to act on behalf of the City of Little Rock and JCI, and that by their signatures
below, the terms and provisions hereof, constitute valid and enforceable obligations of each.
K. This Agreement shall be executed in the original, and any number of executed copies. Any copy of
this Agreement so executed shall be deemed an original and shall be deemed authentic for any
other use.
L. The terms of this Agreement shall be binding upon the parties hereto, their respective heirs,
executors, administrators, successors and assignees.
M. It is expressly agreed that JCI is acting as an independent contractor in performing the services
specified herein. The City of Little Rock shall carry no workers' compensation insurance, health or
accident insurance to cover JCI or JCI's employees for any type of loss which might result to JCI or
JCI's employees in connection with the performance of the services set forth in this Agreement.
The City of Little Rock shall not pay any contribution to Social Security, unemployment insurance,
federal or state withholding taxes, nor provide any other contributions or benefits which might
otherwise be expected in an employer- employee relationship, it being specifically agreed that JCI
is not acting herein as an employee of City of Little Rock, but shall, at all times, and in all
respects, have the rights and liabilities of an independent contractor.
Dated
2006
[PAGE 12 OF 391
I CITY OF LITTLE ROCK, ARKANSAS
2
3 Signature:
4
5 Printed Name: Bruce Moore
6
7 Title: City Manager
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17
Approved as to Legal Form:
Thomas M. Carpenter
City Attorney
By:
Beth Blevins Carpenter
Deputy City Attorney
JOHNSON CONTROLS, INC.
Signature:
Printed Name: Richard L. Harvey
Title: South Region Solutions Manager
[PAGE 13 OF 39]
1 Schedule 1
2
3 SCOPE OF WORK SCHEDULE
4
5
6 1. SUMMARY OF WORK: The following summarizes the Work to be provided by JCI under this
7 Agreement, as further defined below:
8
9 Landfill Gas -to- Energy Project -- City of Little Rock - Solid Waste Division Landfill Operation
10 Located on Ironton Cutoff Road in Little Rock, Arkansas
11
12 Johnson Controls, Inc. shall provide the City of Little Rock with the following services in conjunction
13 with the Landfill Gas- to- Energy Project, as per the conceptual system layout in Exhibit A, attached
14 hereto and made part of this Agreement. Work shall include all engineering, design, supervision and
15 installation labor, equipment and materials for a fully functional landfill gas ( "LFG ") collection system
16 for cells 1 and 2 of the Landfill, landfill gas flare station, dehydration and compression system, and
17 transmission system to 3rd party end -user and purchaser of LFG. The Project includes providing the
18 materials and equipment necessary for LFG data monitoring for billing purposes for the sale of the
19 landfill gas to the end user, as well as monitoring the system's performance, uptime and operability
20 from a remote location 24 hours a day, 7 days a week. All work shall be performed in accordance with
21 the facility permit, such permit to be obtained under this Scope of Work, Arkansas solid waste
22 regulations and applicable state and local laws, codes and regulations.
23
24 Professional Engineering, Design £t Permitting Assistance
25 The following services shall be provided:
26 1. Aerial and Land Survey.
27 2. Engineering and Design of the collection system, landfill gas flare station, dehydration and
28 compression system, and transmission system.
29 3. Preparation of permit application documents and assistance to the City of Little Rock in securing
30 permits for:
31 a. Arkansas Department of Environmental Quality Revised Solid Waste Permit for the LFG
32 collection and transmission system.
33 b. Arkansas Department of Environmental Quality Modified Air Permit &t Construction Permit to
34 include the LFG collection and transmission system.
35 c. Arkansas Department of Environmental Quality Construction Storm Water Permit for the
36 construction of the LFG collection and transmission system.
37 d. Right -of -Way Permit to cross Texas Eastern Natural Gas Pipeline.
38 e. Right -of -Way Permit to cross Arkansas State Highway (367 - Arch, or 338 - Dixon) from the
39 Arkansas Highway and Transportation Department.
40 f. Right -of -Way Permit from Pulaski County to cross Ironton Cutoff Road.
41 g. Land Title Search and Acquire Right -of -Way access for the gas transmission pipeline
42 between the City of Little Rock and the LFG end - user /purchaser, as required.
43 4. Customer and agency consultations in connection with securing above referenced permits and right -
44 of -ways.
45 5. Construction Specification Documents, including Plans and Specifications, for the LFG collection
46 and transmission system sealed by an Arkansas Registered Professional Engineer. All drawings will
47 be prepared using AutoCAD Rel. 2004 and Land Desktop Design Software. Construction
48 Specifications will be in CSI format on MS Word.
[PAGE 14 of 391
1 6. Facilitation of pre- construction and construction meetings, as required.
2 7. Oversee and conduct startup of the collection system and transmission system, including required
3 regulatory compliance documentation.
4
5 Construction of Collection and Flare System at the Landfill
6 1. Provide and install 6 -10 inch transmission header pipeline system around the landfill, as per layout
7 in Exhibit A.
8 2. Provide and install 500 SCFM blower (20 psi) and refrigeration skid at location noted in Exhibit A.
9 3. Provide and install Utility Flare and Skid equipment at location noted in Exhibit A.
10 4. Design, provide and install complete new electrical power service, with power transformer and
11 meter.
12 5. Provide and install complete fenced enclosure of collection, flare, and compressor and dehydration
13 system. Enclosure will have heavy duty anti - collision poles at vehicle barrier points of enclosure.
14 6. Provide and install required night -time lighting for entire LFG system area.
15 7. Provide and install LFG collection system condensate to be conveyed to the existing onsite leachate
16 transmission system at the Landfill.
17 8. Provide and install ten (10) new LFG collection wells for cells 1 and 2.
18 9. Provide Construction Quality Assurance documentation for the installed LFG collection and
19 transmission system.
20 Header being provided under this project shall be sized to collect LFG from cell number four (4) , but
21 does not include the incremental costs with tying cell number four (4) or other additional cells (other
22 than Cells 1 & 2) into the header.
23
24 Construction of Transmission Pipeline
25 1. Provide and install 8 -inch pipeline at depths as needed, but not less than 3 feet, from City of Little
26 Rock Landfill to the LFG end - user's property line.
27 2. Coordinate system start up and acceptance of LFG by end -user.
28
29 Monitoring and Reporting of LF Gas for LFG End -User
30 1. Monitor LFG for CH4 (MMBtu) values on a continuous real -time basis.
31 2. Collect and store SUM and MMBtu data of LFG burned at the flare station.
32 3. Provide and install system that shall provide 24 hours a day / 7 days a week continuous monitoring
33 of installed system from remote location.
34 4. Monitoring system shall provide for off -site data storage, data review/ retrieval via web based
35 server.
36 5. Provide and install communications system for monitoring system.
37
38 Monitoring of Collection and Transmission System
39 1. Provide capability for alarm notification of collection and transmission system abnormalities or
40 unplanned shutdown to remote operations center for local JCI mechanical /technical on -site service
41 response and repair.
42 2. Provide call -out alarm messaging to appropriate JCI personnel when LFG operational parameters
43 are breached.
[PAGE 15 of 391
1
3.
Monitor LFG for CH4 (MMBtu), CO2 and NMOC levels on a continuous basis.
2
4.
Collect and store SCFM and MMBtu data of LFG burned at the flare station.
3
5.
Provide capability for 24 hours a day / 7 days a week monitoring of system and off -site data storage
4
(via web based server) as set forth above.
5
6
LFG Billing Information Collection and Reporting
7
1.
Set up and coordinate with remote services to generate LFG utility invoices at applicable monthly
8
billing rate for City of Little Rock, per volume and MMBtu of gas delivered, to issue to end -
9
user /purchaser, and to provide the monthly HHV value of the LFG volume delivered for that month.
10
11
2.
Provide to the City and to the end - user /purchaser, by November 15th of each calendar year, a
12
forecast of the LFG volume that is expected to be available for sale for the coming calendar year.
13
3.
Provide to the City, by January 301h of each calendar year, the total amount of LFG that was burned
14
at the flare station for the previous calendar year, and the flared amount of LFG as a percentage of
15
the total produced for the previous calendar year.
16
17
End -User LFG Purchase Agreement
18
1.
Assist City of Little Rock in negotiating the final Utility Purchase Agreement with Geo Specialty
19
Chemical. A copy of the executed Utility Purchase Agreement is attached hereto and incorporated
20
herein as Exhibit D of this Agreement.
21
22
Responsibilities
of the City of Little Rock
23
1.
Permitting Applications as required by the applicable regulatory agencies must be requested by the
24
City of Little Rock, as owner. The scope of work and pricing set forth in this Agreement includes
25
the preparation and the fees associated with the required permit applications, as specified herein.
26
To Be Provided by the City of Little Rock
27
1.
Provide backfill material (i.e., general fill, clay, topsoil) for LFG header piping and Transmission
28
piping. JCI shall be responsible for picking up and transporting required fill to the point of use.
29
2.
Provide water for construction purposes.
30
Exclusions
31
1.
Patching of asphalt road within City of Little Rock's Landfill property lines.
32
2.
Scope of Work - "Old" Landfill Site
33 Under the scope of this Agreement, JCI shall ensure that FTN Associates, as subcontractor to JCI,
34 assist the City of Little Rock in the development and submission of the required documentation to
35 the Air Division of the Arkansas Department of Environmental Quality ( "ADEQ ") to request and
36 obtain exemption for this portion (designated "Old Landfill ") of the site from active collection and
37 control. Based upon a meeting held at ADEQ on May 22, 2006, it is anticipated that the Old Landfill
38 site will not require any capital outlay for equipment and systems necessary for collection and
39 control. Therefore, no additional costs are included within the scope of this Agreement to install
40 any equipment for the Old Landfill portion of the Landfill site. The Scope of Work and price
41 contained herein includes surface methane monitoring for the entire Landfill site, including the
42 Old Landfill portion of the site.
43
44
45 Dated ,2006
46
47
48
49
[PAGE 16 of 391
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CITY OF LITTLE ROCK, ARKANSAS
Signature:
Printed Name: Bruce Moore
Title: City Manager
Approved as to Legal Form:
Thomas M. Carpenter
City Attorney
By:
Beth Blevins Carpenter
Deputy City Attorney
JOHNSON CONTROLS, INC.
Signature:
Printed Name: Richard L. Harvey
Title: South Region Solutions Manager
PAGE 17 OF 391
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8
Schedule 2
ASSURED PERFORMANCE GUARANTEE SCHEDULE
1. DEFINITIONS. The following terms are defined for purposes of this Schedule as follows:
Project Benefits are the Measured Billable Usage that occurs in the Guarantee Term.
Annual Guaranteed Project Benefits are the portion of the Total Guaranteed Project Benefits to
be achieved in any one year of the Guarantee Term, calculated and adjusted as set forth in this
Schedule.
9 Annual Project Benefits are the Project Benefits achieved for any one year of this Agreement.
10 Project Benefits Surplus is the amount by which the Annual Project Benefits that exceed the
11 Annual Guaranteed Project Benefits in any one -year of the Guarantee Term.
12 Project Benefits Shortfall is the amount by which the Annual Guaranteed Project Benefits exceeds
13 the Annual Project Benefits in any one -year of the Guarantee Term.
14 Guarantee Term is the term of this Assured Performance Guarantee. As outlined in paragraph 2 of
15 this Agreement, the Guarantee Term shall coincide with the term of Services and shall be 180
16 months from the Substantial Completion Date, unless terminated earlier.
17 Installation Period means the period between the Commencement Date and the first day of the
18 month following the Substantial Completion Date. For purposes of the annual reconciliation,
19 Project Benefits achieved during the Installation Period shall be considered Project Benefits
20 achieved during the first year of the Guarantee Term.
21 Measured Project Benefits are achieved and calculated as set forth in paragraph 3, Reconciliation,
22 of this Schedule.
23 Total Guaranteed Project Benefits are the Total Guaranteed Project Benefits to be achieved
24 during the entire Guarantee Term, calculated and adjusted as set forth in this Schedule.
25
26 Total Project Benefits are the Project Benefits achieved during the entire term of this Agreement.
27 Equipment is the product(s) installed by JCI, its subcontractors or its agents as outlined in
28 Schedule 1 (Scope of Work).
29 Service is the scope of work provided by JCI, its subcontractors or its agents as outlined in
30 Schedule 3 (Service Schedule).
31 Baseline is the mutually agreed upon calculated figures or usage amounts that reflect existing
32 conditions and assumptions as set forth in Schedule 2, Exhibit 6.
33 2. GUARANTEE. Subject to the terms and conditions of this Agreement, JCI guarantees that the
34 Customer, at a minimum, will achieve $6,001,083.00 (Six million, one thousand, eighty three
35 dollars and no cents) of Total Guarantee Project Benefits during the Term of the Agreement to
36 offset construction and operation costs of the installed system as detailed in Schedule 2, Exhibit 5.
37 3. RECONCILIATION. The frequency and the methods of reconciliation to be used during the
38 Guarantee Term have been approved by the Customer at the time that this Agreement was
39 executed and are defined in the Exhibits attached to this Schedule. Except by mutual agreement of
40 the parties, no changes to the frequency or methods of reconciliation may be made during the
41 Guarantee Term.
42 4. CHANGES IN USE. The Customer agrees to notify JCI, within five (5) business days, of any actual
43 change, whether before or during the Guarantee Term, in the use of any facility or equipment to
[PAGE 18 OF 391
I which this Schedule applies relative to this LFG project, or of any other condition arising before or
2 during the Guarantee Term, that reasonably could be expected to change the amount of Project
3 Benefits to which this Schedule applies relative to this LFG project. Such changes or conditions are
4 as follows: changes in the primary use of any facility; changes to the hours of operation of any
5 facility; changes or modifications to the Equipment or Services provided under this Agreement;
6 failure of the premises to meet local building codes; changes in utility suppliers, method of utility
7 billing, or method of utility purchasing; improper maintenance of the Equipment or of any related
8 equipment other than by JCI; changes to the equipment or to any facility required by changes to
9 local building codes; or additions or deletions of equipment at any facility. Such a change or
10 condition need not be identified in the Base Line in order to permit JCI to make an adjustment.
11 Upon receipt of such notice, or if JCI independently learns of any such change or condition, JCI
12 shall calculate and send to the Customer, for the Customer's review and written approval, a notice
13 of adjustment to the Base Line to reflect the impact of such change or condition, and the
14 adjustment shall become effective as of the date that the change or condition first arose. Should
15 the Customer fail to provide JCI with notice of any such change or condition, JCI may make
16 reasonable estimates as to the impact of such change or condition and as to the date on which such
17 change or condition first arose in calculating the impact of such change or condition. JCI shall
18 provide the written estimates to the City of Little Rock for the City of Little Rock's review and
19 approval of same.
20 5. PROJECT BENEFIT SURPLUSES OR SHORTFALLS. If the Annual Project Benefits during a specific
21 year of the Guarantee Term, plus amounts credited from surpluses in the Installation Period and
22 earlier years of the Guarantee Term, are less than the Annual Guaranteed Project Benefits for that
23 year, JCI may apply the difference against any unpaid balances from the Customer then existing
24 under the Agreement. Upon the mutual written agreement of the parties, JCI may also provide
25 additional products or services, in the value of the shortfall, at no additional cost to the Customer.
26 Where Project Benefit shortfalls have occurred, JCI reserves the right, subject to the prior written
27 approval of the Customer, which shall not be unreasonably withheld, to implement additional
28 operational improvements at no cost to the Customer, that will generate additional Project
29 Benefits in future years of the Guarantee Term. JCI may credit, in whole or in part, any Project
30 Benefit Surplus from the previous two consecutive years of the Guarantee Term toward the
31 reconciliation of the Annual Guaranteed Project Benefits for the current year of the Guarantee
32 Term.
33 The following Exhibits are attached and made part of this Schedule:
34 Exhibit 1 Annual Reconciliation of Project Benefits - System Uptime Guarantee
35 Exhibit 2 Measurement and Verification of Project Benefits
36 Exhibit 3 Volume of Landfill Gas Available for Collection and Sale
37 Exhibit 4 Quality of Landfill Gas Available for Collection and Sale
38 Exhibit 5 Project Proforma
39 Exhibit 6 Responsibilities of JCI and Customer
[PACE 19 of 391
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33
Schedule 2
Exhibit 1
Annual Reconciliation of Project Benefits - System Uptime Guarantee
Johnson Controls, Inc. guarantees that the system will be operational as per the table below for each
year of the term of the Agreement as indicated. System referenced is collection of landfill gas from
Cells 1 and 2 and transmission of the Landfill gas to the end - user /purchaser.
CITY OF LITTLE ROCK, ARKANSAS
Initials:
JOHNSON CONTROLS, INC.
Initials:
[PAGE 20 OF 391
Percentage/
System Uptime
/ Year
Hours per
Year - System
Uptime
Installation
0%
0
Year1
95%
8322
Year
95%
8322
Year
95%
8322
Year
95%
8322
Year
90%
7884
Year
95%
8322
Year
95%
8322
Year
95%
8322
Year
95%
8322
Year 10
90%
7884
Year11
95%
8322
Year12
95%
8322
Year13
95%
8322
Year 14
95%
8322
Year 15
90%
7884
CITY OF LITTLE ROCK, ARKANSAS
Initials:
JOHNSON CONTROLS, INC.
Initials:
[PAGE 20 OF 391
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Schedule 2
Exhibit 2
Measurement and Verification of Project Benefits
Project Benefit Calculations
The total Project Benefits for a given time period will be determined by the equation below:
1) Project Benefits Calculation:
Variables to be utilized:
$ /MMbru = Minimum of the Floor Rate of $4.50 /MMbtu or the Average sale
price per MMbtu of LFG for reporting time period ($ /MMBtu), whichever is greater.
550 = Base energy content of LFG (Btu /ft)
325 = Base yearly volumetric rate of LFG (scfm)`
8500 = Hours Operated (hrs /yr) - Measured
8322 = Guaranteed Hours Operated (G- hrs /yr)"
* These constants change yearly - yearly values shown in Exhibits 1 and 3.
Project Benefits = {[hrs /yr x scfm x 60 min /hr x Btu /ft3] / 106} x $ /MMBtu
{[8,500 hrs /yr x 325 scfm x 60 min /hr x 550 Btu /ft3] /1061 x
$4.50 /MMBtu
Annual Guarantee = f[G- hrs /yr x scfm x 60 min /hr x Btu /ft3] / 106 x $ /MMBtu
Project Benefits {[8,322 hrs /yr x 325 scfm x 60 min /hr x 550 Btu /ft3] /1061 x
$4.50 /MMBtu
Any shortfall cost amounts will be determined by utilizing the equation above.
Miscellaneous Adjustments
The various obligations and commitments undertaken by JCI in this Agreement are based in part
on the assumption that Customer's Facilities are and will remain in full compliance with all
applicable codes. The Customer agrees that all equipment of Customer will be maintained in
proper operating condition, and all equipment of the Customer will be operated in accordance
with the terms of this Agreement. In the event JCI determines or becomes aware that
regulations or codes are not being adhered to, or that the Customer's equipment is not being
maintained in proper operating condition, JCI shall be entitled to make such adjustments as may
be necessary to the calculations used to determine the Project Benefits in order to reflect the
effects of non - compliance or improper operating condition of Customer's equipment.
CITY OF LITTLE ROCK, ARKANSAS
Initials:
JOHNSON CONTROLS, INC.
Initials:
[PAGE 21 OF 391
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Schedule 2
Exhibit 3
Volume of Landfill Gas Available for Collection and Sale
The volume of LFG stated herein is based upon testing performed during the project
development phase. For purposes of this schedule, projected volume of landfill gas available
from Cells 1 and 2 has been calculated based upon the actual gas pump test performed at the
site in December, 2005. However, except for the performance standards set forth in this
Agreement, JCI is not responsible for the actual volume of gas available from the City of Little
Rock's landfill, as the variables to guarantee the volume of LFG are beyond JCI's control. The
volumes utilized to develop the financial model are based on the average of the moderate (70%
collection) and conservative (60% collection) estimates as detailed below. The final volumes
utilized in the financial model are based on a ( -25 %) Confidence Interval from the average
collection rate established from the pump test data.
Operating Parameters
Parameter
Value
Units
Hour per Year
8760
Hrs.
Percent U time
95
Model
scfm )
Annual U time Hours
8322
Hrs.
Methane (CH4) Content
55
M
Collection Eff.
60
651
,Higher Collection Eff.
701
M
CITY OF LITTLE ROCK, ARKANSAS JOHNSON CONTROLS, INC.
Initials: Initials:
[PAGE 22 OF 391
Year
Cell 1 &2
60% Collection
70% Collection
Average
Collection Rate
Collection Rate
MMBtu/ r.
Model
scfm )
Efficiency
(scfm)
-25%
Confidence
Efficiency scfm)
(scfm)
1
2007
930
558
651
604
453
124,442
2
2008
884
531
619
575
431
118,391
3
1 2009
841
505
589
547
410
112,605
4
2010
800
480
560
520
390
107,109
5
2011
761
457
533
495
371
96,538
6
2012
724
434
507
471
353
96,911
7
2013
689
413
482
448
336
92,186
8
1 2014
655
393
459
426
319
87,702
9
2015
623
374
436
405
304
83,411
10
2016
593
356
415
385
289
75,184
11
2017
564
338
395
366
275
75,480
12
2018
536
322
375
349
261
71,792
13
2019
1 510
1 306
1 357
1 332
1 249
68,296
14
2020
485
291
340
315
237
64,969
15
2021
462
277
323
300
225
58,558
15 Yr. Annual Average >>> 88,905
Years 5, 10 and 15 are at 90% u time: all other years at 95% u time
CITY OF LITTLE ROCK, ARKANSAS JOHNSON CONTROLS, INC.
Initials: Initials:
[PAGE 22 OF 391
Schedule 2
Exhibit 4
Quality of Landfill Gas Available for Collection and Sale
5 The quality of LFG stated herein is based upon the gas pump test and analytical testing
6 performed in December, 2005 during the project development phase. For purposes of this
7 schedule, the quality of landfill gas available from Cells 1 and 2 has been calculated using the
8 analytical test data available as per Exhibit C herein. However, except for the performance
9 standards set forth in this Agreement, JCI is not responsible for the quality of the gas available
10 from the City of Little Rock's Landfill, as the variables to guarantee the quality of the gas are
11 beyond JCI's control.
12
13 City of Little Rock
14 Landfill Gas - Cells 1 and 2
15 Breakdown of Gas Compounds
16 March, 2006
Compound
Amount
Units
Heating Value
450 to 550and not less than
365
(Btu /ft HHV
Methane
45 to 55
M
Hydrogen Sulfide (HZS)
5 to 50
(ppmv)
Oxygen (OZ)
2 to 5
M
Nitrogen (NA
5 to 10
M
Carbon Monoxide (CO)
0.5 to 1
M
Carbon Dioxide (COA
40 to 55
M
Propane
0.003
M
Water Vapor
6 to 8
(%) by volume
17
18 Heating Value of LFG.
19 Moisture will be removed from the LFG at the Landfill site. However, the HHV is specific to the
20 Methane compound of the LFG only. The LHV of Methane is the net heating value, which neglects
21 the energy in the water vapor formed by the combustion of hydrogen in Methane (CH4). The LHV of
22 Methane is roughly ninety percent (90 %) of the HHV. The HHV is always used by the Natural Gas
23 suppliers for billing purposes, and therefore will be used for LFG billing purposes. The HHV used for
24 billing purposes shall be the measured HHV adjusted to 14.65 psia and 60 degrees Fahrenheit.
25
26 This value will be determined by taking the end of month cumulative BTUs delivered and dividing
27 by the end of month cumulative volume of LFG delivered (Month ending MMBtus _ Month ending
28 MCF (thousand cubic feet).
29
30 Example calculation for one (1) month:
31 End of Month Btu /ft3 = 10,370 MMBtu / 20,740.3 MCF = 499.99 Btu /ft3 = month is within the
32 specification set forth in paragraph 4(c).
33 7,259 MMBtu / 20,740.3 MCF = 349.99 Btu /ft3 = month is out of the specification
34 set forth in paragraph 4(c).
35
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43
The heating value of the LFG will be calculated each month as set forth above, and will be provided in
the monthly invoice to the end - user /purchaser for the LFG. The percentage of the volume of LFG
delivered each month that is below 450 Btu /ft3 will be included in the monthly invoice to the end -
user /purchaser.
CITY OF LITTLE ROCK, ARKANSAS
Initials:
JOHNSON CONTROLS, INC.
Initials:
[PAGE 23 of 39]
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Schedule 2
Exhibit 5
Project Proforma
The project proforma is based upon the minimum quality and quantity of gas projected to be available
from the City of Little Rock's Landfill, Cells 1 and 2, as detailed in Exhibits 1A and 1B. The annual
quantity represented in the proforma is the annual average of the 15 year term total. Actual financial
performance may vary dependent upon quantity and quality of the landfill gas available for use and
sale.
For purposes of this proforma, the invoicing for the sale of the LFG is based upon the Floor Rate of
$4.50 + 25% of the difference between $4.50 (floor rate) and the Nymex Prompt Monthly Close Price for
each month of the term of the Agreement. Below is the projected economic proforma that
demonstrates the project's financial performance at both the floor rate and the NG futures rate after
applying the pricing structure noted herein.
Natural gas futures pricing information was obtained using data published by the EIA (Energy
Information Association).
CITY OF LITTLE ROCK, ARKANSAS
Initials:
JOHNSON CONTROLS, INC.
Initials:
[PACE 24 OF 391
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Schedule 2
Exhibit 6
Responsibilities of JCI and Customer
This Exhibit details the individual responsibilities of JCI and of the City of Little Rock, not otherwise set
forth in this Agreement, in connection with the management and administration of the Assured
Performance Guarantee.
JCI:
JCI is responsible for the maintenance, operation, repair, and system component replacement, data
collection and monitoring of the systems installed as a result of this Agreement. These include Landfill
Gas collection and flare, dehydration and compression, and transmission systems and auxiliary
equipment not specifically listed, but installed as part of this Agreement.
City of Little Rock:
The City of Little Rock is responsible for operation, maintenance, repairs, and regulatory compliance
issues as they pertain to all other operations, equipment and systems at the Landfill site.
CITY OF LITTLE ROCK, ARKANSAS JOHNSON CONTROLS, INC.
Initials: Initials:
[PAGE 25 of 391
4
5
SERVICES SCHEDULE
Schedule 3
Exhibit 1
6 1. SCOPE OF SERVICE. JCI and the Customer agree that the following services will be provided by JCI
7 at the Customer's facility in conjunction with the installed equipment and systems under this
8 Agreement.
System /0$M
Premium Coverage
Component
Collection Ft Flare
Operations Et
Preventive
Repair/ Replacement
System
Maintenance
Maintenance
Labor Et Materials
Labor 8t Materials
Labor Et Materials
Dehydration Et
Operations Et
Preventive
Repair/ Replacement
Compression System
Maintenance
Maintenance
Labor 8: Materials
Labor 8t Materials
Labor Et Materials
Monitoring 8t Data
Operations Et
Preventive
Repair/ Replacement
Collection
Maintenance
Maintenance, including
Labor Et Materials
Labor Et Materials
Auto Calibration of
LandTec System
Communication costs
Labor Et Materials
associated with remote
monitoring Et data
collection
Remote Monitoring 8t
Remote Monitoring of
Alarm Notification Et
Service Response
System Operation
On -Site Service
Parameters -
Response - 24 hours a
Continuous
day / 7 days a week
Mass Flow Meter
Operations 8t
Annual 3rd Party
Repair/ Replacement
Maintenance
Calibration Et
Labor 8t Materials
Certification
Pressure Testing of
Annual Pressure Test to
Investigate and Repair
Testing Labor Et Materials
LFG Transmission
Verify Integrity of LFG
Leaks.
Repair Labor Et Materials
Pipeline ft Repairs, if
Transmission Pipeline
Required
from Compressor to
End -User Property Line.
LFG System Data
Data Collection Et
Annually: By
LFG Sales - Invoice
Collection £t Analysis
Analysis of LFG
November 15th of each
Generation, Monthly
delivered to 3rd party
calendar year, provide
Monthly invoice will
end - user /purchaser and
to the City and to the
include:
Analysis of System
end - user /purchaser a
Performance -
forecast of the LFG
Volume (MMBtus) of LFG
Continuous
volume that is expected
delivered to end -user,
to be available for sale
the applicable rate per
for the coming calendar
MMBtu for the month,
year.
and the total amount to
be billed to the end user
[PAGE 26 OF 391
CITY OF LITTLE ROCK, ARKANSAS JOHNSON CONTROLS, INC.
Initials: Initials:
[PAGE 27 OF 391
By January 30 of each
for the month.
calendar year, provide
to the City the total
LFG (in MMBtus)
amount of LFG that
delivered to end -user;
was burned at the flare
HHV value of LFG
station for the previous
delivered to end -user,
calendar year, and the
and if the HHV is +/-
flared amount of LFG
within LFG specification.
as a percentage of the
total LFG volume
produced for the
previous calendar year.
Collection and Flare
Monitoring, Inspections,
Methane Surface
Air Permit - Reporting as
System
Maintenance and
Monitoring Et
required
Repairs and System
Documentation
Component
Replacement due to
normal wear and tear.
Performance
Measurement and
Annual Reconciliation
Assurance Services
Reporting of Project
of Guaranteed Project
Benefits - Semi-
Benefits Reconciliation
Annually
CITY OF LITTLE ROCK, ARKANSAS JOHNSON CONTROLS, INC.
Initials: Initials:
[PAGE 27 OF 391
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Schedule 3
Exhibit 1
SERVICES SCHEDULE
LFG System - Performance Assurance Services
The following services will be performed by a JCI Performance Assurance Specialist ( "PAS ") assigned to
the City of Little Rock's LFGTE project. Services will be rendered at the indicated frequencies as set
forth below:
These services will provide the basis of the measurement and verification process that will be used to
calculate and report the Project Benefits to the Customer:
1. Data Collection - The PAS will have the responsibility of gathering all information associated
with LFG production, distribution, and quality of the LFG, as required for Monthly Reporting to
City of Little Rock.
17 2. Data Evaluation - On a monthly basis, the PAS will have the responsibility of evaluating the
18 data and information gathered to determine status of operation of the collection, compression,
19 and metering systems. This will also include evaluation of Natural Gas market data to
20 determine the current monthly pricing of LFG to Yd party end user /LFG purchaser based on the
21 Utility Purchasing Agreement between the City of Little Rock and the 3rd party end user/ LFG
22 purchaser.
23 3. Utility Purchasing Invoice Creation - On a monthly basis, the PAS will have the responsibility
24 of creating and submitting utility invoices for use by the City of Little Rock to invoice 3rd party
25 end - user /purchaser of the LFG.
26 4. Technical Support and Consulting - Provide technical support to City of Little Rock on billing
27 questions from 3rd party end - user /LFG purchaser, as required.
28
29 Monthly
30 1. Report to Customer the quantity (volume Et Btus) of landfill gas delivered to 3rd party end -
31 user /LFG purchaser.
32 2. Calculate and report to the Customer the monthly billing amount for the 3rd party end - user /LFG
33 purchaser.
34 3. Provide LFG Utility Invoice for City of Little Rock to issue to 3rd party end - user /LFG purchaser.
35
Annual Reconciliation of Protect Benefits
36
1.
JCI shall provide annual reconciliation of the Project Benefits as calculated per Schedule 2,
37
Exhibit 2.
38
39
Dehydration
/Compression System and Auxiliary System - Related Equipment
40
1.
On -site inspections, as required.
41
2.
Preventative maintenance, as required.
42
3.
Repair / Replacement of system components as required.
43
4.
Scheduled System downtime to perform required preventive maintenance and repairs shall be
44
for a minimum of one week per year.
45
5.
Scheduled System downtime to perform major equipment component replacements shall be at
46
each five year interval and shall be for a minimum of two weeks per year.
47
Data Collection and Monitoring System - Land Tec /JCI Equipment and Systems
[PAGE 28 OF 391
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1. Real time, continuous, and web accessible data collection and storage.
2. Maintain historical records of system operation and landfill gas transported.
On -Site Service Response - 365 days a year / 7 days a week / 24 hours a day, as Required to
Ensure System Operation
1. Provide real -time monitoring of flare system and compression/ dehydration system operation.
2. Provide local mechanical and technical service response 24 hours a day / 7 days a week upon
alarm notification of system abnormalities or system shut -down.
LFG Collection and Flare System - Quarterly or as Required to Ensure Proper Operation
1. Routine inspection by qualified technician of the installed LFG collection and flare system.
2. Routine inspections of the visible wellhead components for air leaks.
3. Routine Maintenance of the installed equipment.
4. Required repairs to the installed equipment.
5. System Component Replacement due to normal usage, such as pumps, wellheads, piping and
sump components.
6. Tuning and balancing of the installed well -field equipment for optimum LFG generation.
7. On -site inspection and logging of specific and required data as per NSPS regulations.
8. Methane Surface Monitoring, Documentation and Reporting as required by regulatory agencies.
Air Permit Reporting Requirements
Surface Methane Monitoring.
Data tracking, collection, preparation and submission of reports to ADEQ to meet Air Permit
requirements.
Dated
2006.
CITY OF LITTLE ROCK, ARKANSAS
Signature:
Printed Name: Bruce Moore
Title: City Manager
Approved as to Legal Form:
Thomas M. Carpenter
City Attorney
By:
Beth Blevins Carpenter
Deputy City Attorney
JOHNSON CONTROLS, INC.
Signature:
Printed Name: Richard L. Harvey
Title: South Region Solutions Manager
[PAGE 29 of 391
4
Schedule 4A
PRICE AND PAYMENT TERMS SCHEDULE
1. The Customer shall make payments to JCI for Work performed and acceptable to the City of Little
Rock, as well as payments for Services acceptable to the City of Little Rock rendered pursuant to
the Services Schedule.
8 (a) The price to be paid by the Customer for the Scope of Work set forth in Schedule 1 shall be
9 for actual costs and shall be in an amount not to exceed $3,750,000.00 (Three million seven
10 hundred fifty thousand dollars and no cents). Progress payments, including payment for
11 materials delivered to JCI and work performed on and off -site, shall be made to JCI as follows:
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First payment due: 21 days after contract execution by both parties
Amount: $275,000.00 Project Development and Engineering Services
Remaining payments shall be invoiced monthly using a Customer - approved schedule of values.
The schedule of values shall be provided by JCI to Customer for Customer's review and written
approval within twenty (20) calendar days of execution of this Agreement by both parties
Invoices shall be sent to customer by the 5th of each month and shall be payable by the 25th of
each month in which they are invoiced.
Final payment, as set forth in the Customer - approved schedule of values, constituting the
actual entire unpaid balance for the Scope of Work performed as set forth in Schedule 1 and
acceptable to the City of Little Rock, shall be made to JCI within 30 calendar days after the
Substantial Completion Date. Payments may be withheld by Customer on account of any
breach of this Agreement by JCI and claims by third parties (including JCI subcontractors and
material suppliers), but only to the extent that written notice has been provided to JCI and JCI
has failed, within ten (10) calendar days of the date of receipt of such notice, to provide
security acceptable to Customer to protect Customer from any loss, cost, or expense
whatsoever related to such claims.
(b) The price for JCI's Services during the Term of this Agreement is as follows:
Year 1
- $165,351.00
Year 6-
$201,173.00
Year 11 - $244,763.00
Year 2
- $171,965.00
Year 7 -
$209,220.00
Year 12 - $254,553.00
Year 3
- $178,843.00
Year 8 -
$217,588.00
Year 13 - $264,735.00
Year 4 -
$185,996.00
Year 9 -
$226,291.00
Year 14 - $275,324.00
Year 5
- $193,436.00
Year 10
- $235,349.00
Year 15 - $286,337.00
33 The total price to be paid by the Customer for Services performed by JCI and
34 acceptable to the City of Little Rock during the fifteen (15) year Term of this Agreement shall
35 be $3,310,924 (Three million three hundred ten thousand nine hundred twenty four dollars and
36 no cents).
37
38 This amount will be paid to JCI in monthly installments, beginning on the first month
39 that Project Benefits begin to be measured under this Agreement. These payments will be due
[PACE 30 of 391
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and payable when the Customer receives JCI's invoice and in advance of the services JCI is to
provide and shall be made throughout the Service Term.
Year
Monthly
Amount
Year
Monthly
Amount
Year
Monthly
Amount
1
$13,779.25
6
$16,764.42
11
$20,396.92
2
$14,330.42
7
$17,435.00
12
$21,212.75
3
$14,903.58
8
$18,132.33
13
$22,061.25
4
$15,499.67
9
$18,857.58
14
$22,943.67
5
$16,119.67
10
$19,612.42
15
$23,861.42
2. CUSTOMER PURCHASE ORDERS. The Customer acknowledges and agrees that any purchase order
issued by Customer, in accordance with this Agreement, is intended only to establish payment
authority for the Customer's internal accounting purposes. No purchase order shall be considered
to be a counteroffer, amendment, modification, or other revision to the terms of this Agreement.
Dated
2006.
CITY OF LITTLE ROCK ARKANSAS
Signature:
Printed Name: Bruce Moore
Title: City Manager
Approved as to Legal Form:
Thomas M. Carpenter
City Attorney
By:
Beth Blevins Carpenter
Deputy City Attorney
JOHNSON CONTROLS, INC.
Signature:
Printed Name: Richard L. Harvey
Title: South Region Solutions Manager
[PACE 31 OF 391
I Schedule 4B
3 PROJECT INSTALLATION SCHEDULE
[PACE 32 OF 39]
Exhibit A
2
3 System Layout
4
5 The project scope of work and pricing contained herein is based upon the attached system layout.
6
[PAGE 33 of 39]
1 Exhibit B
3 Gas Specification
4
5 The gas specification is based upon the gas pump test results in Exhibit C, and is the gas specification
6 used for the purposes of the utility purchasing agreement by and between the City of Little Rock and
7 the end - user /purchaser of the Landfill Gas.
8
9
10
11 March 14, 2006
12
13 City of Little Rock
14 Landfill Gas - Cells 1 and 2
15 Breakdown of Gas Compounds
16
17
18
19
Compound
Amount
Units
Heating Value
450 to 550 and not less than
365
(Btu /ft HHV
Methane
45 to 55
M
Hydrogen Sulfide (HZS)
5 to 50
(ppmv)
Oxygen (OZ)
2 to 5
M
Nitrogen (NZ)
5 to 10
M
Carbon Monoxide (CO)
0.5 to 1
M
Carbon Dioxide (CO2)
40 to 55
M
Propane
0.003
M
[PAGE 34 OF 391
1 Exhibit C
3 LF Gas Content Analysis
4
5 The projected quality and quantity of LFG is based upon the results of the attached Gas Content
6 Analysis, dated 12/20/2005, by Air Toxics, Inc. The complete report from this analysis is on the
7 following pages. Additionally, H25 testing was performed on site by FTN Associates. The end -
8 user /purchaser of the LFG (Geo Specialty Chemicals) has reviewed this analysis and will accept the gas
9 for use as specified in Exhibit B. The system to be installed does not include any additional equipment
10 to clean the landfill gas.
11
12
13
[PAGE 35 of 391
[PAGE 36 OF 39]
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[PACE 39 of 391