Res 039-2009 3/3/2009 � RESOLUTION NO. �
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A
LETTER OF INTENT BETWEEN AMERESCO, INC. AND THE CITY OF
WICHITA FALLS FOR THE DEVELOPMENT OF LANDFILL GAS AT THE
CITY OWNED LANDFILL; FINDING AND DETERMINING THAT THE
MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN
TO THE PUBLIC AS REQUIRED BY LAW.
WHEREAS, the City of Wichita Falls seeks to develop the Landfill Gas from the
City owned Landfill; and
WHEREAS, Ameresco, Inc. is interested and would like to pursue the
devefopment of the LFG from the City owned landfill, and submitted a Letter Of Intent
(LOI) after discussions with City Staff outlining major topics to be included in a contract
with the City of Wichita Falls.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
SECTION 1. The Letter Of Intent from Ameresco, Inc. for development of plans
and options for the City owned Landfill Gas Purchase is hereby accepted and the City
Manager is authorized to execute the Letter of Intent.
SECTION 2. It is hereby officially found and determined that the meeting at
which this resolution was passed was open to the public as required by law.
PASSED AND APPROVED this the 3rd day of March, 2009.
MAYOR
ATTEST:
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'ty Clerk
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February 17, 2009 °' F �� ��Qg ��
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Russell J. Schreiber, P.E. s �ti�'
Director of Public Works � z t- tE �� �
City of Wichita Falls
1300 7� Street, P.O. Box 1431
Wichita Falls, Texas 76307
Re: Letter of Intent for Landfill Gas Utilization Project at the City of Wichita Falls
� Landfill
Dear Mr. Schreiber,
Ameresco is pleased to submit the enclosed three (3) signed original Letter of Intent
(LOI) docwnents for your consideration.
Please have an authorized representative execute all three (3) LOIs an eturn one (1)
original to me at:
Ameresco, Inc.
111 Speen Street
Suite 410
Framingham, MA 01701
Attn: Michael T. Bakas
Thank you for choosing Ameresco to partner with on this project. Upon full execution of
the LOI, Ameresco will begin a detailed feasibility analysi.s of the project. Concurrent
with this, as well as negotiating the contract terms with Cryovac, Ameresco will supply
the City with a draft Landfill Gas Purchase Agreement and a draft Site Lease Agreement
for its review and comment.
Ameresco hopes that we have showed that our company will provide the best
combination of experience, technical skill, and economic value. In the meantime, if you
have additional questions, please do not hesitate to contact me at 508.661.2223 or Brian
Guzzone at 571.431.2434.
Sin�cerely,
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Michael T. Bakas ����lv�p ��
Vice President CPTY Ct�ERK'S C7fiFICE
Date
111 $PEEN $TREET *$UITE 410 * FRAMINGHAM, MI� 01701 By Time - ���J� �
PxoNE: 508-661-2200 * Fnx: 508-6G1-2201
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LANDFILL GAS PURCHASE
LETTER OF INTENT
between
City of Wichita Falls, Texas
and
AMERESCO, INC.
City of Wichita Falls Landfill
.' '
' �Q� THIS LANDFILL GAS PURCHASE LETTER OF INTENT ("LOI") dated as of the � of
�����ai3` 2009 is by and between City of Wichita Falls, a municipal government, with principal offices at
1300 7 Street, P.O. Box 1431, Wichita Falls, Texas ("Wichita Falls') and Ameresco, Inc., a Delaware
corporation with principal offices at 111 Speen Street, Suite 410, Framingham, MA 01701.
RECITALS
WHEREAS, Wichita Falls owns and operates the City of Wichita Falls Landfill located at 10984
Wiley Road, as it may be expanded from time to time, and including future contiguous landfills (the
"LandfilP');
WHEREAS, landfill gas, consisting primarily of inethane and carbon dioxide, is produced from
the decomposition of refuse within the Landfill ("Landfill Gas");
WHEREAS, on May 25, 2007 Ameresco provided, a proposal to develop a landfill gas
utilization project at the Landfill (the "Proposal'�;
WHEREAS, Wichita Falls wishes to deliver and sell to Ameresco, Inc. or an affiliate
("Ameresco'), and Ameresco wishes to purchase from Wichita Falls, the Landfill Gas from the Landfill,
for the purpose of (a) destructing or selling for destruction the Landfill Gas as a means to claim and sell
Carbon Credits/Verified Emissions Reductions and/or (b) using such Landfill Gas for resale of the
Landfill Gas or to fuel an electric generation facility for the sale of electrical power to third party
purchaser(s) (the "End User(s)") (the sale of Carbon CreditsNerified Emissions Reductions and/or the
resale of Landfill Gas or the generation of electrical power or any other energy source may be referred to
herein as the "ProjecP').
NOW, THEREFORE, Wichita Falls and Ameresco agree that the following terms will be the
basis for attempting to negotiate definitive agreements between the Parties regarding the Project (where
Wichita Falls and Ameresco are each referred to in this LOI as a"Party" and collectively, as the
"Parties"):
1. Real Estate Ri�hts. For the life of the Project (minimum.twenty year term), Wichita Falls will
provide Ameresco with all rights to a parcel of real estate (that is mutually agreed to by the
Parties, each in their sole discretion) to be designated to develop, construct and operate the
Project, including a site for the facility, construction laydown and storage space, rights of way for
piping, electrical lines, and access thereto. The Parties intend to enter into a separate, definitive
site lease agreement outlining the respective rights and obligations of the Parties. The lease
payment for the term of the site lease shall be $1.00.
2. Gas Supply. The Parties intend to enter into a long-term gas supply agreement (acceptable to
project lenders, provided that the Parties will have no obligation to agree to any terms or
conditions not acceptable to either Pariy, each in their sole judgment) for Wichita Falls to supply
and Ameresco to purchase Landfill Gas for the Project. As compensation for such Landfill Gas,
Wichita Falls may choose one of the two following payment options that will be included in the
gas supply agreement:
Option 1
Wichita Falls Compensation = Gross Revenue x 0.10
Gross Revenue = revenue received by Ameresco from or with respect to the sale of Landfill Gas
without deducting any cost of Ameresco's operations; including revenue received from the sale of
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' � Ameresco's Environmental Attributes or Carbon CreditsNerified Emission Reductions (but not
including any tax credits, deductions, allowances and exemptions applicable to federal, state and
local taxes).
Option 2
a) Wichita Falls Compensation = Gross Revenue x 0.06
b) Wichita Falls shall have the rights to 25% of all Carbon Credits/Verified Emission
Reductions from the Project as further detailed in Section 6 below.
Option 3
a) Wichita Falls Compensation =$0.50 per mmbtu ("Royalty Rate") for Landfill Gas resold
by Ameresco to End User(s)
b) Royalty Rate will escalate annually at the same rate of annual escalation as that of the
End User(s) rate for the purchase of the Landfill Gas from Ameresco
c) Wichita Falls shall have the rights to 25% of all Carbon Credits/Verified Emission
Reductions from the Project as further detailed in Section 6 below.
3. Collection Svstem. Ameresco would retain ownership of and the responsibility for maintaining
its gas collection system at the Landfill. Ameresco would be responsible for all costs, expenses,
and obligations relating to engineering, permitting, construction, and operation of Ameresco's
wellfield, flare, compression plant, pipeline and other facilities.
4. Development Support. The Parties intend that Wichita Falls will provide Ameresco, at no cost to
Ameresco, with reasonable support in Project development; provided that neither Wichita Falls
shall be required to incur or pay any out-of-pocket costs or expenses in providing such support.
5. Arrzeresco's Environmental Attributes. The Parties intend that Ameresco will retain the rights to
any and all ta�c credits, deductions, allowances and exemptions applicable to federal, state and
local taxes and any other payment, credit, deduction, benefit, grant or monetary incentive
provided by any federal, state or local governmental authority or any person or entity, whether
now in effect or arising in the future, and all air /greenhouse gas emissions, reductions or offsets,
including without limitation from the generation and sale of electricity using Landfill Gas as a
fueL
6. Carbon Credits/i�eri�ed Emission Reductions. The Parties intend that (i) in the case of Option 1
above Ameresco shall retain 100% of all fuel, air /greenhouse gas emissions, reductions,
allowances or offsets, carbon credits or verified emission reductions, whether from the Landfill,
the Collection System, or the Project and (ii) in the case of Option 2 and Option 3 above
Ameresco shall retain 75% of all fuel, air /greenhouse gas emissions, reductions, allowances or
offsets, carbon credits or verified emission reductions, whether from the Landfill, the �Collection
System, or the Project while Wichita Falls will retain the remaining 25%.
7. Order of Precedence. Wichita Falls shall not take any actions that would in any way reduce the
amount, or diminish or impair the value of, Ameresco's Environmental Attributes and those
Carbon CreditsNerified Emission Reductions that Ameresco owns or has rights to ("Ameresco's
Combined Environmental Attributes") , and shall take all actions reasonably necessary to confer
all benefits of Ameresco's Combined Environmental Attributes on Ameresco or any party
purchasing Ameresco's Combined Environmental Attributes from Ameresco.
8. Non-Circumvention. For a period of six (6) months from the date of the execution of this LOI by
the Parties, Wichita Falls shall not, directly or indirectly, pursue the Project, negotiate or enter
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into any agreement with any other pariy or parties regarding the Project or purchase or supply of
Landfill Gas from the Landfill; provided, that Ameresco may pursue and negotiate any End
User(s) supply agreements and any agreements relating to the construction and financing of the
Project. If Wichita Falls and Ameresco have not executed the definitive agreements described in
Sections 1 and 2 above, contemplated by this LOI within this six (6) month period, neither Party
shall have any further obligation to the other Party under this LOI or otherwise.
9. Costs and Expenses. Each of the undersigned will bear their own respective costs and expenses
(including, without limitation, fees and expenses of counsel and other advisors) in connection
with the transactions contempla�ed by this LOI.
The Parties agree that, other than Section 8, which the Parties agree are binding, this LOI does not
constitute a firm proposal, offer or enforceable agreement to enter into any transactions with respect to the
subject matter hereof, is not binding on any of the Parties and imposes no duty or obligation on any of
them to proceed with or to negotiate with respect to any or all of the proposed transactions. Except as
specifically provided in Section 8, neither Party shall have any obligation to the other Party with respect
to the transactions described in this letter unless and until both Parties have executed all of the definitive
agreements required to effectuate such transactions. However, both Parties agree to act in good faith to
attempt to negotiate and execute the agreements described in Sections 1 and 2 above within the non-
circumvention period described in Section 8. Nothing in this LOI is intended to restrict or otherwise limit
the provisions of any separate confidentiality or other similar agreement entered into by the Parties with
respect to the transactions contemplated by this letter.
IN WITNESS WHEREOF, the duly authorized officers or representatives of the Parties have set
their hand and seal on the date set forth below, with the intent to be legally bound.
AMERESCO INC
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�� � By: �
Michael T. Bakas
Vice President
Date: �"�.��N � � � � Z�� ° J
CITY� I ITA FALLS
B I ��"n- .
Title: ( /��� a-/�'�
Date: � _ /�� v 4
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