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4 <br /> Agreement essentially relies on the good faith of UNC to proceed rather than specific provisions <br /> in the Agreement. <br /> A Way Forward <br /> Under these circumstances the County Attorney's Office has continued to discuss internally <br /> another final compromise proposal concerning the County's rights in the event of a delay in the <br /> construction by UNC of the project. Such proposal would move the County to a position of <br /> foregoing a termination right in its entirety in case UNC is unable to construct either the LFG <br /> collection system or conversion system in exchange for a contractually guaranteed revenue <br /> stream beginning within eighteen months of the parties signing the agreement. This final <br /> compromise proposal has not been tested with UNC given their last stated position but does <br /> constitute the recommended position from the County Attorney's Office at this point in the <br /> process. <br /> As a consequence, County staff believes there are three options for BOCC discussion on <br /> February 3. <br /> 1. The BOCC may approve the Proposed Agreement "as is" (attached) with <br /> understanding, acceptance, and tolerance for the level of risk and exposure <br /> County staff emphasizes the material weaknesses in the proposed Agreement and the <br /> potential, however unlikely, of project implementation being indefinitely delayed (without the <br /> County having a practical legal recourse), even if for reasons unrelated to acquiring easements. <br /> Staff also confirms UNC is unwilling to negotiate further to incorporate provisions within the <br /> Agreement that would limit potential of indefinite deferment of implementation. <br /> 2. Do not approve the Proposed Agreement and direct County staff to pursue with UNC a <br /> final compromise proposal, to be formally developed by the County Attorney, to <br /> satisfactorily address the legal risks associated with the Proposed Agreement <br /> 3. Do not approve the Proposed Agreement and direct County staff to return on February <br /> 17, 2009 with an alternative approach for seeking competitive bids for entering into a <br /> landfill gas-to-energy development agreement under more secure terms and <br /> conditions on project implementation <br /> FINANCIAL IMPACT: During the term of the proposed agreement, revenue to the Solid Waste <br /> Enterprise Fund could range from $115,000 to $140,000 annually, with the potential for an <br /> additional $3,500 to $40,000 annually from the sale of renewable energy credits. The actual <br /> income will be variable and based on the actual implementation and development timeline, <br /> landfill methane output, natural gas price fluctuations, federal greenhouse gas policy and other <br /> economic externalities. <br /> RECOMMENDATION(S): <br /> The Manager recommends Option 2 to the BOCC: <br /> Do not approve the Proposed Agreement and direct County staff to pursue with UNC a final <br /> compromise proposal, to be formally developed by the County Attorney, to satisfactorily <br /> address the legal risks associated with the Proposed Agreement <br />