ML17212A254

Partial Response in Opposition to Parsons & Whittemore 810424 Petition for Leave to Intervene.Petition Is Untimely & Fails to Show Sufficient Interest.Certificate of Svc & Supporting Matl Encl

ML17212A254
Person / Time
Site:	Saint Lucie
Issue date:	06/26/1981
From:	Green D FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-A, NUDOCS 8107020472
Download: ML17212A254 (103)

Text

REGULATORY INFORMATION DISTRIBUTION SYSTEM (RIDS)

ACCESSION NEER!

8107020472'OC',

DATEt '1/06/2b" NOTARIZED:.- NO FACILCSO 389 St'I Lucie Plantq Unit 2'i Florida Power 8

Light'o;'UTH'AME'

'UTHOR'FFILIATION GREENrD,G,':.

>>'lor ida Power 8 Light" Co ~

GREENED,G.:

LowensteiniNewmaniReisiAxelrad L 'Toll RECIP e NAMEl'ECIPIENT"AFF ILiIAT'ION

Atomic-Safety and Licensing Board Panel DOCKE~T>> 0 05000389

SUBJECT:

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QgnQl In the Matter of FLORIDA POWER 6 LIGHT COMPANY g 2. 714 (c), hereby files a partial response in opposition to the "Petition For Leave To Intervene And Request For Hearing" (Petition) filed in this proceeding on April 24, 1981, (seven years and four months late) by Parsons 6 Whittemore, Inc. and its subsidiary, Resources Recovery (Dade County), Inc. (Peti-tioner or P&W).

FPL opposes the Petition, on grounds which fall into two categories.

First, even had it been filed timely, the Petition would not be sufficient to support intervention in this proceeding.

To begin with, Petitioner bases its right to intervene upon its alleged status as a Qualifying Facility within the meaning of the Public Utilities Regulatory Policies Act s

of 1978 (PURPA).

(PURPA 5201, 16 U.S'.C.

g 796 (Supp. III 1979) ).

((

However, contrary to its representations, Petitioner does not lawfully control such a facility.

Thus the Petition fails

[C to demonstrate a cognizable interest on the part of Petitioner rP ebs (sn-ab gpss 9 ~oi s xo v020 (fQ Docket No. 50-389A

)

(St. Lucie Plant, Unit No.

2)

)

June 26, 1981 J~

PARTIAL REsPQNsE QF FLQRIDA PowER s LIGHT s

~I ~~3th EQ COMPANY IN OPPOSITION TO "PETITION JUL 01198t~

FOR LEAVE TO INTERVENE AND REQUEST

~~gg FOR HEARING" FILED OUT OF TIME BY PARSONS 6 WHITTEMORE, INC. AND RESOURCES RECOVERY (DADE COUNTY)

INC.

v '.

c gl tl~

Florida~Power 6 Light Company (FPL), pursuant to 10 CFR

J, I*

W 1'

A II W

~ sd41P

~ 4

which would support intervention in this or any other NRC proceeding.

Moreover, the Petition fails utterly to allege a situation inconsi'stent with the antitrust laws with the specificity required by NRC decisions, and does not address whether "activities under the license would create or maintain" any such situation.

(Atomic Energy Act g 105(c)(2),

42 U.S.C.

g 2135(c)(5}

(1976)).

Petitioner wrongly believes that the mere assertion that a license con-dition previously imposed is not broad enough suffices as a

showing which would support intervention in this proceeding.

The second ground for FPL's opposition is that the Petition was filed seven years and four months late and that it fails to demonstrate good cause for such late filing and to meet the other requirements for late intervention pre-scribed in the Commission's rules.

Because FPL's Application for Issuance of Subpoenas is still pending, it cannot at this juncture bring before the Board all of the facts which it. believes are pertinent.to an evaluation of the late Petition.

However, FPL files this Partial Response now for two reasons.

First, FPL has re-cently been able to obtain from Dade County some of the docu-ments pertinent to Petitioner's contractual obligations.

"/ See Kansas Gas and Electric Co.l(Wolf Creek Generating Stat@on, Unrt No. 1), ALAS-279, 1 NRC 559 (1975); Kansas Gas and Electric Co.

(Wolf Creek Generating Station, Unzt No. 1), ALAB-299, 2 NRC 740 (1975).

These documents. confirm the tenuous nature of P&W's asser-tions.

Consequently, FPL believes that the late Petition can be dismissed at this point even without consideration of what still remains undisclosed.

Second, a prompt disposi-tion of this Petition is in the interest of all parties.

While the Board is considering this Partial Response, FPL believes that its subpoenas should be issued.

If the Board decides, as FPL believes is merited, that. the late Petition can be disposed of without awaiting additional information adverse to the Petition, the Board can issue its order to that effect and thereby expedite resolution of the matter.

If, on the other hand, the Board wishes to wait for FPL's complete response to the late Petition, FPL will file such a response within ten days of executing the sub-poenas and receiving the documents which P&W has refused to disclose.

Had not P&W opposed these subpoenas, this could have been accomplished long ago, and FPL's complete response would already have been on file.

I.

Introduction and Back round In order to place the Petition in its proper perspective in this proceeding, FPL will summarize briefly the procedural history and the current status of the proceeding, Petitioner's filings in this and other licensing proceedings for St. Lucie II Unit No. 2, and the requirements wh'ich the instant Petition must meet.

A.

The Instant Proceedin This proceeding involves the antitrust review associated with issuance of the construction permit for St. Lucie Unit No. 2. It began in late 1973 when the Commission offered an opportunity for any interested person to file, no later than December 28, 1973, a petition to intervene on antitrust grounds.

No petitions were filed, and in May of 1977 the Commission issued a construction permit for St. Lucie Unit No. 2.

In August 1976, before issuance of the construction per-mit but some 31 months after the time for filing a petition to intervene on antitrust grounds had expired, Florida Cities filed such a petition.

That petition was referred to an Atomic Safety and Licensing Board which granted the Cities'equest for late intervention.

(Florida Power a Li ht Co.

(St. Lucie

Plants, Units 1 and 2), LBP-77-23, 5 NRC 789 (1977)).

The grant of intervention was subsequently upheld by the Appeal Board (Florida Power

& Li ht Co.

(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8 (1977))

and the Com-mission (Florida Power

& Li ht Co.

(St. Lucie Plant, Unit No.

2), CLI-78-12, 7

NRC 939 (1978)).

In the course of the sub-sequent proceeding, FPL, the United States Department of Justice (Justice) and the NRC Staff entered into a settlement agreement which resolved the differences among them.

The settlement agreement imposes':upon FPL a set of license

,t conditions for St. Lucie Unit No. 2.

The intervenor Cities did not join in the settlement among Justice, the Staff and

FPL, and the se'ttlement explicitly recognizes the Board's authority to impose additional or different license conditions after a hearing is completed, should that be necessary.

Justice and the Staff have advised the Board of their view that if the conditions provided in the settlement are attached to the St.

Lucie Unit No.

2 construction permit, activities under that license will not create or maintain a situation inconsistent with the antitrust laws.

On April 24, 1981 the Board issued a Memorandum and Order which accepted the Settlement Agreement as filed, made effec-tive immediately the proposed license conditions, and allowed Intervenor Cities 30 days "to proceed with any litigation in this proceeding they believe necessary to cure the situation inconsistent with the antitrust laws alleged by them to be created or maintained by the activities under the St. Lucie Unit 2 license."

(Memorandum and Order, pp.

12-13).

B.

The Petitioner's Filin s The instant Petition is the second filing which Petitioner has made with this Commission seeking to intervene, on anti-trust grounds, in a licensing proceeding for St. Lucie Unit No. 2.

On April 7, 1981, Petitioner sought to intervene, solely on antitrust grounds, in the health, safety, and environ-mental proceeding to consider the issuance of an operating

"/

Moreover, on June 22, 1981, Petitioner submitted to the Director of Nuclear Reactor Regulation a filing re-questing institution of an enforcement action against, FPL vis-a-vis the conditions approved by this Board on April 24, 1981.

FPL believes this filing to be patently without. merit and will respond accordingly.

license for St. Lucie Unit No. 2.

On May 6 FPL filed its response to that intervention, pointing out that antitrust issues could not be..considered in such a proceeding; that Petitioner has no interest in any licensing proceeding for St. Lucie Unit No. 2; that there is no antitrust review now pending for the St. Lucie Unit No.

2 operating license, and the pleadings of Petitioner provided no grounds for initi-ating such a review; and that the antitrust allegations which Petitioner had put forth were not sufficient to pro-vide a basis for any NRC antitrust, proceeding, and were unmeritorious in any event.

The Petition was properly denied by the operating license Board by Order dated June 3, 1981.

P&W has noticed an appeal.

On April 24, 1981, Petitioner made the instant filing, in which it requested leave to intervene "in this construction licensing proceeding" and requested the Commission to hold a

".limited" antitrust hearing.

The purpose of the Petition is to support Petitioner's request for late intervention in this construction permit proceeding and, to that end, the Petition "focuses upon the reasons for Petitioner's delayed filing of its intervention papers in this construction licensing pro-1 ceeding."

(Petition, p.

3).

As support, for the substance of its intervention, Petitioner relies on, and incorporates by reference, its April 7 filings before the Licensing Board designated to hear the health, safety, and environmental aspects of the St. Lucie Unit No.

2 operating'icense.'"/

"/

For purposes of identification we will refer to the April 24 construction.permit filing as the "Petition."

The April 7 filings will be referred to as the "OL Petition" and the "OL Brief," and collectively as the "OL Filing.'-'

The OL Filing In its April 7..filing in the operating license review, Petitioner asserts an interest based exclusively on the claim that it is a qualifying small power production facility en-titled to certain benefits under PURPA and that operation of St. Lucie Unit No.

2 under the terms of the license conditions will be inimical to those benefits.

More specifically, Peti-tioner states that it has "recently completed" construction of a solid waste processing facility in Dade County, Florida, which will process solid waste, convert combustibles into fuel, and burn the fuel to create steam (OL Petition, p. 2).

In conjunction with the solid waste processing facility, an electric generator will use the steam to generate electricity.

Petitioner contends that it "owns and is test operating" the electric generator.

(OL Brief, p. 5). Petitioner asserts that the facility is a qualifying small power production facility within the meaning of Section 201 of PURPA, 16 U.S.C.

5 796, and the implementing regulations (18 CFR Part 292) promulgated by the Federal Energy Regulatory Commission (FERC),

and con-tends that "[It] has complied with the requirements of PURPA and has taken the necessary steps to secure the benefits to which it is entitled," by notifying the FERC that it is a qualifying facility under

PURPA, and notifying FPL that it

"'willbegin sales of electric energy to Florida Power a

Light Co.'" within a short time.

(OL'Brief, p.

6),.

Peti-tioner further contends that it has also sought to explore competitive opportunities for sales to other electric utilities

and to that end has asked FPL to confirm that it "'will trans-mit electricity in behalf of [Petitioner] to potential customers other than FPaL.'"

(OL Petition, p. 3).

Petitioner alleges that if FPL is permitted to operate St. Lucie Unit No.

2 under the terms of the license conditions which were attached to the construction permit for St. Lucie Unit No.

2 pursuant to the April 24, '1981 order by this Board, a "'situation inconsistent with the antitrust laws'ay be created or maintained."

(OL Petition, pp. 2-3).

Petitioner's complaint concernsSection X of the license conditions, whichf among other things, requires that FPL provide transmission services for electricity produced by qualifying small power production facilities in circumstances and under conditions which Petitioner contends are unduly limited.

(OL Petition, p

4)

~

On this basis, Petitioner contends it should be granted intervention for "the limited purpose" of being heard on the "potentially detrimental impact" of Section X of the license conditions on its PURPA rights and competitive interests.

(OL Petition, p. 9).

The Instant Filin Petitioner asserts that it filed the Petition seven years and four months late due to a "lack of knowledge attributable to the secrecy of the settlement process,"

and alleges that,

~ f because of this secrecy, it was not, aware of any possible C

effect of the proceeding on its "rights" until it."unearthed"

the proposed settlement agreement which it claims was only recently made public. (Petition, pp. 7-8).

• /

Petitioner argues that the only means which it has avail-able to protect its interest is through participation in this proceeding (or the health, safety, and environmental proceed-ing) and contends that if it is not allowed to intervene, FPL will succeed in "using" the NRC to help it maintain and enhance its monopoly power "in the ways outlined in [the OL]

Brief in support of the April 7 Petitioner (sic]."

(Petition,

p. 8).

Petitioner states that its rights are "deeply affected" by the proposed settlement because such settlement has appar-ently been negotiated without regard to rights which qualifying facilities possess under PURPA.

Thus, Petitioner alleges that its participation in this proceeding is necessary to develop-ment of a sound record, and that no other party is available to represent those interests.

(Petition, p. 9).

Finally, Petitioner contends that its intervention will neither broaden nor delay the proceeding, because the issues which it has raised in its filings will be before the Commis-sion in any event, and a determination on them must be made.

(Petition, p. 10).

C. Standards A 'lic'able 4o the Pe'tition The Commission's rules require that, in order to be suc-

cessful, a Petition must demonstrate,(l).

the nature of Petitioner's

"/

'Petitioner also contends that "requisite formalities" were lacking in the '"public notice," though it fails to identify what it believes tho'se formalities to be.

10 right under the Act to be made a party to the proceeding; (2) the nature and extent of Petitioner '

property, fi-nancial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on Petitioner's interest.

(10 CFR g 2.714(d)).

Moreover, in order successfully to raise antitrust issues in a Commission proceeding, a Petitioner must allege with reason-able specificity a "'situation inconsistent. with the antitrust laws'" as well as "'a meaningful nexus between the activities under the nuclear license and the "situations" alleged to be inconsistent with the antitrust laws.'"

(Wolf Creek, ALAB-

279, 1 NRC at 566).

Petitions to intervene out of time must meet additional requirements, for late petitioners properly bear a substantial burden in justifying their tardiness.

(Nuclear Fuel Services, Inc.

(West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975));

see also South Carolina Electric and Gas Co.

(Virgil C.

Summer Nuclear Station, Unit 1), ALAB-642, NRC (June 1, 1981).

First, the Petition must demonstrate good cause for failure to file on time.

In addition, the Petition must explain clearly four other factors: the availability, xf any, of other means to protect Petitioner's interest; the extent to which Petitioner's participation may reasonably be expected to assist in developing a sound record;,the extent to which Pet@-

le tioner's interest will be represented by existing parties; and the extent to which Petitioner's participation will broaden the issues or delay the proceeding.

(10 CFR g 2.714(a) D).)..

II.

Petitioner.Lacks The Status On Which Its Claim Of Interest In An NRC Proceedi;n ':Is Ba'sed

Petitioner lacks the requisite interest to intervene, because Petitioner has no legally cognizable interest in the subject matter of this proceeding, or any licensing proceeding for St. Lucie Unit No. 2.

As noted

above, the Commission's rules require that, in order to he successful, the Petitioner must demonstrate, among.

other things, its interest in the proceeding.

(10 CFR 5 2.714(d).)..

Without such a showing, the Petition should be dismissed at the outset.

Due to Petitioner's refusal to disclose any of the facts in its possession, FPL does not yet have all of the information which bears on this question.

But the information that is avail-able establishes that Petitioner cannot satisfy this criterion.

Petitioner's assertion of interest in any licensing pro' ceeding concerning St. Lucie Unit No.

2 rests on its repre-sentations to the effect that it lawfully owns and controls a solid waste processing facility in Dade County, Florida, as well as an electric generator whicn will produce electricity from steam raised by the solid waste facility (OL Brief, p.

5) and that the facility is a "qualifying small power production

• /

facility" within the meaning of PURPA.~

Petitioner states that it has "complied with the requirements of PURPA and has

"/

Such a facility is entitled to certain benefits under PURPA and its implementing regulations.

16 U. S.C.

g 824a-3 (Supp. III 1979);

18 CFR 5 292.101, et seq.

12 taken the necessary steps to secure the benefits to which it is entitled

[under PURPA]."

(OL Petition, p. 3).

Such "necessary steps" include a notification to the FERC that it is a qualifying facility under PURPA, and notifying FPL that it will begin to sell electric energy to FPL within a short time.

Petitioner also alleges that it has sought assur-ance from FPL that it will transmit electricity for Petitioner to potential customers other than FPL.

(OL Petition, p. 3).

What Petitioner has failed to disclose to the Commission is that contracts are in existence which defeat any legal right

'n Petitioner's part to title to the electric generator and to any right, title, or interest in the electric output from the facility.

What follows is a brief account of the pertinent facts.

On May ll, 1976 the Black Clawson Parsons-Whittemore Organization submitted a "Proposal" to Metropolitan Dade County for a "Resource Recovery Plant."

The Proposal encompassed the construction of a solid waste processing facility (SWPF),

which would be owned by the County and operated by the

'contractor for an agreed upon fee, and an electrical generation

"/

Petitioner submitted a Notice to FERC on March 13, 1981, claiming it met PURPA small power producer qualifications.

Petitioner apparently contends that the mere filing of such a notice entitles it to small power producer status, irrespective of the implications,'f the underlying facts.

FPL disagrees.

On May 7, 1981 FPL filed a Protest, Petition for a Declaratory Order, and Petition to Intervene, arguing that Petitioner is not so qualified'and that FERC should so declare.,

FERC has not yet ruled on the matter.

facility (EGF) which would be owned and operated by FPL.*/

It followed two years of negotiations.

Ultimately, these arrangements became discrete formal contractual commitments, covering the SWPF and the generating facility, respectively.

In the contract relating to the

SWPF, Petitioner, through one of its subsidiaries, agreed to build the SWPF and vest title and ownership in it to Dade County.

Purchase Contract for Solid Waste Disposal Facility (Sept.

28, 1976) at g 5.02.

Even that contract,

however, contains pro-visions establishing that the electrical generating facility is to be owned and operated by FPL.~*'

This commitment to vest ownership of the electric generating facilities in FPL was sealed by a contract between FPL and Dade County, executed in late 1977

[the EGF Agreement].

That contract provides that upon completion of construction and after certain technical tests have been satisfactorily completed, but before any electric energy has been produced by the

<</

Thus the Proposal represented, inter alia, that:

"n turbo generator

module, complete with transmission facilities, will be provided for the account of Florida Power 6 Light Company."

Proposal dated May ll, 1976, Description of Process and Equipment, page no. 2-12.

Exhibit A hereto.

"*/ Thus the Purchase Contract provides:

l. 05 Electrical Generation ~Facilit The "Electrical Generation Facility" shall me n the turbo-generator and the facilities relating thereto to be owned by Florida Power

& Light and to be built pur'suant to an agreement to be entered into with Florida Power" 6 Light Company as provided in Section 11.02 hereof and as more particularly described in such agreement.

The pertinent portions of the Purchase Contract are annexed hereto as Exhibit B.

14 facility, Dade County will transfer to FPL the title to the I

electric generator and those directly associated transmission lines required to connect the electric generator to the FpL grid.

Thereafter, FPL will own and operate the electric generators and associated transmission facilities.

The electric energy will go into FPL's system and.be treated the same as all other energy which FPL generates to serve the needs of its customers.

Dade County has also contracted to lease to FPL those portions of the site on which the electric generator is located, so that FPL may use and occupy the site to operate the electric generator and associated transmission lines to generate and transmit electric energy.

As is common in major commercial contracts of this nature, Dade County has warranted that it is legally authorized to perform its obligations under the contract and is legally obligated to comply with the terms and conditions set out therein.

Zn short, the contract reflects that Dade

• /

County contemplates holding sufficient title to the site, the electric generator, and the transmission facilities to permit the County to perform unconditionally its obligations to transfer to FPL ownership of such facilities and a leasehold interest in the underlying real estate.

Moreover, FPL has now been able to obtain from Dade County a copy of a "Restated Assumption Agreement."

By that contract,

"/

A copy of the contract between FPL and Dade County is attached to the affidavit of J.

T. Blount, FPL's Assistant Corporate Secretary, and was provided to this Board as Appendix A to the response filed by FPL on May 6, 1981, in Docket No. 50-389-0L.

Petitioner agreed 4o assume all of the principal obligations of Dade County under its contract with FPL.

The pertinent

• • /

provisions are as follows:

2.

Construction of the Facilit (a) the Contractor shall design, finance (during construction) and construct the Electrical Generation Facility, as provided in the EGF Contract

[according to various provisions of the EGF Contract between FPL and Dade County].

The Contractor [i.e., Petitioner) shall also transfer title to the EGF Transmit.ssa.on Facxlztxes and the Faczlzt to the Count or to FPL, as directed xn writing by the County, xn accordance with Sections 7.0 and 19.2 of the EGF Contract.

[Emphasis added].

3.

Sale of EGF and Steam.

After 'construction obli ated under the EGF Contract to sell the Electrical Generation Facilxt to FPL and to deliver and sell Qualit Steam to FPL zn accordance with Sections 5.12, 5.13 and 5.14 of the EGF Contract, including, but not limited to, obli-gations to make payments to FPL in accordance with Section 5.19 of the EGF Contract and to be responsi-ble for damages resulting from the faulty operations of the SWPF and nonquality steam in accordance with Sections 8.4 and 5.15 of the EGF Contract,

'and the Contracto'r '[i.e., Peti'tip'nerj'shal'1

'assume a'IMoM the Count s ob'li atmo'ns u'nder 'such 'sect~on's as 'if the Contractor were a a'rt

tothe'GF Contract xn xeu of t e Count Emp asks a

e Under the Restated Assumption Agreement, Petitioner, by assuming the obligations of Dade County, has committed to Of course, FPL still has no access to any of the agreementsg memoranda and other documents relating to this agreement which are in the sole possession- 'of Petitioner.

f The excerpts in the text are taken from the "Restated and Amended Agreement for Assumption of Rights and Obligations Under Electrical Generation Facility and Steam Delivery Agreement, dated May 5, 1978, and annexed hereto as Exhibit C.

- 16 vest in FPL the ownership and operation of the electric generating facility, and has itself confirmed that FPL has the valid legal right to the generating facility and its output.

Yet it is that output which Petitioner now seeks to appropriate, in derogation of the rights of FPL (and the citizens of Dade County as well).

At the heart of the matter is the contractual dispute between Petitioner and Dade County.

According to a Complaint filed by Dade County in the U.S. District Court in Miami, Dade County has placed in escrow the entire purchase price of the SWPF facility and equipment -- $ 128 million -- to be paid upon adequate assurance of performance by Petitioner;

however, Petitioner has failed to provide those assurances and has pur-

• • /

ported to repudiate its contractual commitments. Petitioner is refusing to honor its legal obligations until and unless someone perhaps the County, perhaps FPL pays Petitioner more money than its contract provides.

FPL is informed that these contractual disputes between Petitioner and the County

• • • /

are now in arbitration.

FPL stands ready to perform, pursuant to those contracts, as soon as Petitioner fulfillsits obligations either voluntarily or by adjudicated decree.

Complaint, paras.

33, 38-40.

A copy of the Complaint is annexed to FPL's Application for Issuance of Subpoenas, dated May 8, 1981.

Dade County's lawsuit was dismissed on the ground of lack of diversity of citizenship between the parties.

(Metro olitan Dade'Count

v. Parsons 6 Whitte-more, Inc., No. 80-333-Civ.-EDS S.D.'la.).

"**/At the same time, FPL is engaged in settlement negotiations involving Parsons

& Whittemore and Dade County.

17 Petitioner's qlaim of interest in this proceeding is that it currently "owns" the SWPF and EGF facilities because it is retaining the legal title to them.

What this argument ignores completely is that, Petitioner retains such "title" by breaching its contractual obligations to FPL and Dade County.

Petitioner has no lawful right to tho'se facilities or to appropriate their output.

The burden is on the Petitioner to demonstrate the legiti-macy of its claim of interest in any NRC proceeding in which it seeks to participate.

Here, Petitioner's ability to do so depends upon its ability to demonstrate before this Commission the invalidity of solemn contractual commitments which, on their face, defeat Petitioner's claim. It is not the function of the NRC to resolve a commercial contractual dispute among private parties.

But that is what it would have to do to determine that Petitioner has a cognizable interest here.

In this instance, the Petitioner avoided dealing with these questions in its Petition by simply not apprising the Commission of the existence of contracts which

• • /

place a serious cloud over the claims made in the Petition.

"/

In essence, Petitioner ask the Board to assume those contracts, which ~are in full force and effect, are invalid.

In its Brief in Opposition to Application for Issuance of Subpoenas, Petitioner cites Rule: 25(c) of the Federal Rules of Civil Procedure for the'roposition that it has a viable "interest."

This argument is misconceived.

Rule 25(c) provides that when a litigant transfers his interest to a third party subsequent to commencement of a lawsuit, the third party may be substituted in the discretion of the court.

The rule is intended to provide (footnote continued)

18 Petitioner's failure to substantiate the claims on which its assertion o'f 'interest is based is reason enough for denial of the Petition, standing alone.

Moreover, even if Petitioner's contentions were accepted arcruendo, its interest would be too tenuous to support a Petition as late and as deficient. in other'respects as this one under any circumstances.

III.

The Antitrust Claims Stated in the Petition Are Not Sufficient to Justify Granting of the Petition A.

The Imposition of Settlement License Conditions Cannot Justify Petitioner's Intervention The allegations in the late Petition are grounded upon the proposition that if FPL is permitted to operate St.

Lucie Unit No.

2 on the basis of the license conditions provided in the settlement among FPL, the Department of Justice and the NRC Staff, this will "diminish qualifyi'ng facilities'enefits under PURPA."

(Petition at 5).

That is not so and cannot be so as a matter of law.

(footnote continued).

an orderly method for dealing with substituting new parties.

That rule has no application here.

What is involved here is a threshold question as to which of the two litigants, complainant or respondent, has the equitable and cognizable interest in the power in question.

That is a matter which involves not a "transfer" of

interest, but a determination as to whether such interest exists.

Moreover, what Petitioner contemplates is not substitution of a third party to assert a continuing claim, but the extinction of its alleged claim altogether.

Fin-ally, the NRC Rules contain no express analogue to federal Rule 25(c),

hence the Commission'vidently did 'aot intend for such a rule to contxol its proceedings in any event, even-leaving aside Petitioner's misconception as to its applica-tion.

'(Gen'era'1'l'ectric Company (Vallecitos Nuclear Center, General Electra.c Test Reactor),

LBP-78-.33, 8

NRC 461, 466 (1978).

19 Any conditions attached to FPL's license for St. Lucie Unit No.

2 will serve solely to enjoin FPL. It is an obvious proposition of law that no injunction placed upon FPL by the NRC can defeat the authority of another federal agency with competent jurisdiction to impose different, and perhaps more stringent, regulatory requirements upon FPL.

The settlement license conditions expressly acknowledge this in Section XIII(c),

which provides:

"Nothing herein shall be construed to affect the jurisdiction of FERC or any other regulatory agency."

PURPA contains a comprehensive regulatory scheme regarding the obligations of electric utilities to deal with small power producers, including the obligations to provide wheeling and backup services.

That scheme is unaffected by any license conditions imposed by this Commission.

The license conditions do not and cannot mitigate FPL's obligation to comply with the small power producer regulations issued under PURPA.

Petitioner's complaint is nothing more than that the settlement conditions do not provide it with significant advan-tages in addition to those it receives under PURPA regulations.

The contention that an injunctive condition does not go as far as one would like is no basis for the allegation that activities under the license would create or maintain a situation incon-sistent with the antitrust laws.

Thus, to the extent that the'.Petition may be xead as corn>>

plaining that the license conditions themselves create or maintain a situation inconsistent with the antitrust laws

20 because they diminish Petitioner's rights under some other regulatory

scheme, that contention is groundless as a matter of law.

B.

The Petition Fails to Meet, the Substantive Standards for Inter-vention in an. Antitrust Proceedin As noted above, the OL Petition is devoted almost entirely to airing Petitioner's dissatisfaction with one of the provisions of the settlement license conditions.

No meaning-ful effort is made to allege the independent existence of a situation inconsistent with the antitrust laws which would be created or maintained by activities under the license and would call for remedial license conditions.: It is incumbent upon Petitioner to come forward with such allegations as a

condition to intervention in an NRC antitrust proceeding.

Where one seeks to intervene in an NRC antitrust pro-

ceeding, his petition must identify with specificity the "situation inconsistent with the antitrust laws" which will be created or maintained by activities under the license.

Substantially more than bare allegations must be

pleaded, for simply alleging a "situation inconsistent" and mouthing in a ritualistic fashion that that situation will be created or maintained by the activities under the license is insufficient.

To be successful, the petition must at a minimum identify the specific provisions of t'e antitrust laws which it is f

claimed will be offended by the activities, identify the relevant markets which it contends are at issue, and describe how

21 activities under the license will offend those provisions in the relevant market, (Wolf Creek, ALAB-279, 1 NRC at 559; Wolf Creek, ALAB-299, 2 NRC at 740).

The Petition fails to make these showings.

Moreover, the successful petition must show a "meaning-ful nexus" between the activities under the nuclear license and the "situation."

(Louisiana Power and Li ht Co.

(Water-ford Steam Electric Generating Station, Unit 3), CLI-73-25, 6 AEC 619 (1973); Wolf Creek, ALAB-279, 1 NRC at 566).

Petitioner makes no effort to allege any nexus between the situation inconsistent with the antitrust laws and activities under the operating license for St. Lucie Unit No. 2.

This is not surprising in view of the absence of any factual basis for demonstrating such a nexus.

The closest that Petitioner comes to acknowledging any such requirement is in paragraphs (18) and (19) of the OL Petition, where it states, in essence, that 'its interest will be affected by FPL's "intended implementation" of the settlement conditions.

(OL Petition, pp. 8-9).

As is demonstrated

above, the settlement conditions affect Petitioner only in that they do not go as far as Petitioner would like in addressing what Petitioner contends is a situation inconsistent w'th the antitrust laws -- a "situation" which is not alleged to bear any nexus to activities under the license.

The require-ment of such a nexus is jurisdictional, and Petitioner's failure to allege any such nexus is fa'tal to the substance of

(

its allegations.

"/

Waterford, 6 AEC at 619.

22 IV.

The Antitrust Allegations Contained in the Petition Are Without Merit As the foregoing section demonstrates, Petitioner has failed utterly to allege a situation inconsistent with the antitrust laws which would be created or maintained by activities under the license, and FPL denies that any such situation could be shown.

The few, scattered references to substantive antitrust issues contained in the Petition are transparently without basis or merit.

Petitioner refers in the OL Brief to the Fifth Circuit's decision in Gainesville Utilities v. FPL, 573 F.2d 292, cert.

denied, 439 U.S.

966 (1978)

(OL Brief, p. 4), without pro-viding any clue as to how that decision relates to its claims.

Also included in the OL Brief without any illuminating explan-ation (pp. 12-13) is a list of allegations which 'the Cities have

made, and FPL has denied, in this proceeding and in a suit, pending in the U.S. district court in Miami, Florida.

Peti-tioner does not assert that it can produce any evidence in support of these allegations.

The only references to any relationship between FPL and Petitioner which might, have competitive implications are

• /

confused and internally inconsistent.

At page 17 of the OL

"/

The only reference to market stru'cture found in Petitioner's filings is Paragraph (13) of the 'OL Petition which charges that FPL "possesses monopolistic control over the provision of transmission services in southern 'and eastern Florida."

FpL denies that allegation and avers that it cannot credibly be maintained in any event by one which asserts that it is a small power producer, and thus would be entitled to the assurance of access to transmission facilities, regardless of their ownership, which PURPA provides to the owners of small power production facilities.

23 Brief Petitioner states that:

"FP&L, of course, would rather buy electric power from qualified PURPA facilities than com-pete with those facilities for sales to FP&L's other customers."

The fallacy of this assertion is demonstrated by the footnote on the same page of the OL Brief, which acknowledges that an electric utility is required by FERC rules to purchase elec-tricity from small power producers at the utility's avoided cost.

Thus a utility cannot under the law profit or reduce the costs which its customers must pay as a result of making any such purchase.

Contrary to Petitioner's glib assertion, FPL has no incentive to "compete" to make purchases under these circumstances.

Moreover, Petitioner implies that 'FPL seeks to withhold transmission services so that FPL will not lose wholesale sales to municipal utilities.

To the contrary, FPL has sought relief from the obligation to make additional wholesale sales, on the ground, inter alia, that the cost of providing such service exceeds incremental revenues derived by FPL.

The FERC proceeding in which that relief was denied to FPL is that referenced in the footnote on page 9 of the OL Brief.

Apparently, Petitioner, in its haste to capture a quote out of that context, failed to acquaint itself with the sub-ject matter of the FERC proceeding.

The transparent weakness of these allegations is not surprising.

There is no dispute between Petitioner and FPL which has competitive implications.

Nor has anyone who law-fully controls a qualifying small power production facility

24 complained of FPL s dealings with him.

This Petition is prompted by Petitioner's apparent desire to escape from its contractual obligations to Dade County and to take something that does not rightfully belong to it, but to which FPL is entitled under its own contract with Dade County.

The idea of asserting antitrust claims is but an afterthought.

V.

The Petition Fails To Meet. The Standards For Late Intervention The Petition fails, on all counts, to make the requisite showings for late petitions to intervene, and must therefore be denied.

The Petition is woefully deficient in demon-strating good cause for failure" to timely file.

Moreover, the Petition further fails to make an adequate showing on the other four factors which are necessary to justify a late petition to intervene.

Petitions to intervene out of time bear a substantial 275),

and petitions which are filed egregiously late such as this Petition, which was filed seven years and four months late -- bear an extremely heavy burden of persuasion.

Lucie, CLI-78-12, 7 at NRC 939).

A.

The Petition Fails To Demonstrate Good Cause For Failure To File On Time ',:

The instant Petition is filed some seven years and four months late.

There can be no excuse for such tardiness, and indeed Petitioner has failed to provide one.

25 The Commission has directed that its regulations with respect, to late interventions (10 CFR 2.714(d))

should be stringently applied, "particularly in assessing the good cause factor" and that such scrutiny should become more rigorous the closer the proceeding draws to completion.

ln-

deed, the Commission has said that "A very late petition must present a very strong reason for late intervention."

St.

Lncie, CLI-78-12, 7

RRC at 946-947.

Petitioner's attempt to show good cause for its late filing fails to survive a close look.

Petitioner claims that its "delay [in requesting inter-vention]

was caused by a lack of knowledge attributable to the secrecy of the settlement process" (Petition, p. 8),

stating that it was only when it "unearthed" the settlement agreement that it "realized" FPL was using "this proceeding" to undercut its "rights as a qualifying PURPA facility."

(Petition, p. 7).

Petitionex claims that, it had no notice of the settlement negotiations, and that even though Section X of the license conditions "directly bears upon Petitioners'ompetitive interests and PURPA rights

. the Agreement a/

was only recently made public."-

(Petition, p. 7).

"/ Petitioner appears to allege that some sort of public "notice" was required with respect to the settlement agreement, complaining that such,'notice "consisted of filing a copy of the Agreement in the NRC '

docket room, but doing so without attendant publicity or the requisite formalities."

(Petition, pp. 7-8).

Petitioner fails to specify what "formalities" it believes were required.

- 26 Even if this were true, it could not serve to excuse Petitioner's tardiness.

Petitioner bases its claim to late intervention on the settlement

alone, and that is fatal.

Even if Petitioner's filing is read in the light most favor-able to Petitioner, the most that it says is that the injunc-tion imposed on FPL in Section X of the settlement license conditions is not broad enough to suit Petitioner., It is indisputable that Petitioner is at least as well off with the protection of an allegedly inadequate injunction as it was with no injunction at all.

Petitioner has not contended

• /

otherwise.

If Petitioner has any claim that the NRC can entertain it must be based upon allegations of a situation inconsistent with the antitrust laws which pre-existed imposition of the settlement license conditions and which the conditions do not adequately cure.

In showing good cause for extreme

lateness, Petitioner must explain why it never came forward to complain of the situation, not why it only now complains of the breadth of remedial conditions.

On that point, there is no case to be made.

The proceeding itself has been pend-ing since a notice inviting submissions of petitions for leave to intervene was published in the Federal Re ister in 1973, and this Board's order granting Cities'ate petition and L 'I request for an antitrust hearing was:published in April 1977.

"/

The largely rhetorical claim that conditions imposed on FPL's NRC license could affect Petitioner's rights under PURPA as administered by the FERC is obviously wrong as a matter of law.

Bee pp. 18-20,

~su ra

27 Viewing Petitioner's claims in the best possible light, the Board is presented with a petitioner which knowingly or thoughtlessly sat on the sidelines while a proceeding was running its lengthy course and is now dissatisfied with the scope of relief obtained by those who participated as parties in the proceeding.

Such dissatisfaction cannot be accepted

• /

as good cause for extreme lateness.

In addition, a ruling on "good cause" for lateness neces-sarily involves elements of subjective judgment by the Board.

It is proper for the Board to take into account the evidence that, this Petitioner seeks to use the processes of this Com-mission to gain tactical advantage in a commercial contractual dispute in which it has become involved.

(See pp. 10-14,

~su ra).

As one who seeks to shed itself of its contractual obligations and to interfere with the performance of the contract between FPL and Dade County, Petitioner does not come to the NRC with clean hands a conclusion which is buttressed by the absence from any of Petitioner's filings of a candid account of the commercial situation.

Another factor which weighs heavily against Petitioner is its recalcitrant attitude towards open disclosure.

A late Petitioner has an obligation to come forward with the facts upon which his Petition for late intervention can be objectively evaluated.

From the outset, PEN has

"/

E.g.,

Pu et Sound Power 6 Li ht Co.

(Skagit Nuclear Power Project, Units an

, ALAB-5 10 NRC -162 (1979)..~

Nader v.

NRC, 513 F.2d 1045, 1054-55 O).C. Cir. 1975$.

28 sought to have its Petition evaluated on the basis of only those facts it has elected to volunteer.

In its Petition and supporting papers, P&N'failed even to mention the existence of the contractual disputes outlineu, supra, which have heen the center of all its dealings with FPL.

This omission cannot persuasively be defended by Petitioner's argument that these facts are somehow "extraneous."

That is a determination which is the Commission ', not Petitioner '

to make, and should be determined on a record which is fully and fairly informed.

The fact is that Petitioner decided its petition would not be advanced by having these facts brought forward.

To this day, Petitioner adamantly resists FPL's efforts to have equal access to the facts in its possession.

This continued resis-tance to a fully informed evaluation of its assertions is a matter the Board may weigh heavily in assessing whether Petitioner ha's come forward with a showing that would justify acceptance of its extraordinarily late Petition.

B.

The Petition Fails To Make An Adequate Showing On An Of The Four Factors Failure to show good cause for Untimely filing of a petition is not necessarily fatal to a request, for late intervention.

However, the burden of justifying such an intervention then falls upon the remaining four factors in 10 CFR 5 2.714(a),

and the showing which is required under those factors then becomes considerably greater than it

- 29 show below, Petitioner fails to justify its late intervention on the basis of any of the four factors.

1.

Other Means are Available to Protect Petitioner's Interest It is FPL's position, for the reasons given on pp. 10-14/

~su ra, that Petitioner has failed to make a showing of inter-est sufficient to support its intervention in any NRC pro-ceeding.

However, even if Petitioner's assertions are accepted arcruendo, it is clear that the interest that it seeks to pro-

• /

tect arises under PURPA and not the Atomic Energy Act.

To the extent that PURPA, or its underlying policies, or any implementary regulations adopted by the FERC entitle Peti-tioner to receive transmission service from FPL, Petitioner is free to assert its rights before the FERC.

Indeed, PURPA contains provisions (16 U.S.C.

824; (Supp. III 1979))f which empower FERC to order any electric utility to provide transmission service upon the application of any qualifying small power producer.

It is not necessary to consider here whether the exis-tence of such provisions in PURPA would require or permit inaction by the NRC on the merits of issues properly before it. All that must be considered here is whether if the Pe-tition is denied on grounds of untimeliness the Petitioner will It is also FPL's position that Petitioner has failed to

allege, and cannot truthfully allege, any substantial nexus between its complaints and activities under the license in issue here.

See, pp. 17-18,

~su ra.

30 be left without any legal forum.

Clearly, that will not be the case.

2.

Participation by Petitioner Would Not Assist in Deve'lo in aSound Record Petitioner argues that its participation would. assist in developing a sound record because Qualifying PURPA Facili-ties have "been afforded less favorable treatment than other electric generators" under the"Settlement Agreement.

And only Petitioner has intervened to represent the interests of such facilities.

As noted, Petitioner's complaint is that the settlement license conditions somehow adversely affect the rights which qualifying facilities are given under PURPA.

As shown above, that is not the case, and those rights are not affected in any respect.

Moreover, FERC exercises comprehensive

• /

oversight authority vis-a-vis such facilities and can develop whatever additional or lesser regulatory requirements appear appropriate as cases arise before it.

Petitioner's argument that the NRC should endeavor to delineate the proper regulatory treatment of those facilities here, "since PURPA was enacted but two years ago," is misconceived.

The develop-ment of the proper regulatory requirements concerning such facilities will be charted by FERC as,,experience warrants.

"/

Furthermore, Petitioner, relying as it does on a wrongful breach of its contractual commitments now in arbitration as the genesis for all of its claims, is implicated in congeries of facts which hardly make Petitioner a repre-sentative for any others.

31 The license conditions neither inhibit this development nor insulate FPL in any way from its effect.

Aside from its complaint about the breadth of one feature of the settlement license conditions, Petitioner does not suggest that it has any evidence to contribute to resolution of the substantive issues remaining in the proceeding, which concerns whether activities under the license would create or maintain a situation inconsistent with the antitrust laws.

Rather, Petitioner's involvement would require an extremely complicated inquiry into the commercial dealings (regarding waste disposal facilities) between Petitioner, Dade County, Florida FPL) and perhaps others, extending back to 1 974

~

Thus Petitionexs participation would not enhance the development of the record in this case.

3.

Re resentation b

Existin Parties Because Petitioner has no legally cognizable interest in these proceedings, and has not properly alleged a situation

~

inconsistent with the antitrust laws which bears a "substantial nexus" to activities under the lic'ense for St. Lucie Unit No. 2, this issue is irrelevant to the consideration of whether

• /

Petitioner should be allowed to intervene.

"/

ln any event, this factor is one'hich is given "relatively lesser weight" than those relating to delay or broadening

Summer,

~au ra, mimeo opinion at 23-24.

32 4.

Broadening of Issues or Delay of Proceedin Petitioner argues that its intervention would not broaden the issues or delay the proceeding, because it has done "no more than articulate existing issues which NRC must decide with or without our participation."

This is wrong, in every respect.

First, it is not true that the NRC will be called upon to decide the issues which Petitioner seeks to raise, "with or without fits] participation."

The issues before the Board now concern whether the Cities can establish a situation inconsistent with the antitrust laws which would be created or maintained by activities under the license, and, if so, whether any relief'n addition to that provided in the settlement conditions is appropriate to remedy that situ-ation.

There is no need for the Board to give further attention to the settlement conditions, except to the extent that the pro-ceedings on the merits lead it to do so.

The evolving relation-ship between FPL and those who are accorded certain privileges as "small power production facilities" under new and untested federal and state regulatory schemes emanating from PURPA is a complex subject, which is not likely to be directly in issue in this proceeding unless the Petition is granted.

FPL believes that there is virtually no relationship between that subject and the antitrust issues with which this proceeding is con-

Second, as discussed previously, the dealings between Petitioner and FPL cannot be considered in any meaningful way

33 without the Board'a considering and resolving, at least for purposes of the proceeding, the commercial dispute which sur-rounds the Dade County facility. Plainly, airing of this commercial dispute would substantially broaden the issues in this proceeding and thus prolong it.

Finally, the risk of delay in issuance of the operating license for St. Lucie Unit No.

2 would be substantial if the Petition were to be granted.

FPL estimates that construction of the facility will proceed on a schedule which would require that an operating license be issued by October 1982 in order to avoid delay in commercial operation of St. Lucie Unit No. 2.

If this already complex proceeding were broadened to include examination of issues which may affect small power production facilities as well as consideration of the commercial arrange-ments surrounding the Dade County facility, there would be reason for concern that the proceeding, including discovery of the new party and evidentiary hearings, could not be completed by that date.

If granting of this Petition were to delay commercial operation of St. Lucie Unit No. 2, FPL, its customers and the public interest would suffer grievous harm.

That risk should be weighed heavily against granting a petition received more than seven years late.

Conclusion

<gf For the reasons given above, FPL urges that the Petition be denied.

Respectfully submitted, DATED:

June 26, 1981 r

n Lowe

ein, Newman, Reis Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C.

20036 Herbert Dym Covington

& Burling 888 16th Street, N.W.

Washington, D.C.

20006 Attorneys for Florida Power Light Company

UNITED STATES OF At%RICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POWER

& LIGHT COMPANY (St. Lucie Nuclear Power Plant Unit No.

2)

Docket No. 50-389A CERTIFICATE OF SERVICE I hereby certify that copies of "PARTIAL REPONSE OF FLORIDA POWER

& LIGHT COMPANY IN OPPOSITION TO 'PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING'ILED OUT OF TIME BY PARSONS WHITTEMORE, INC. AND RESOURCES RECOVERY (DADE COUNTY), INC." was served upon the following persons by hand delivery* or by deposit in the U.S. Mail, first class, postage prepaid this 26th day of June 1981.

Ivan W. Smith, Esquire Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Robert M. Lazo, Esquire Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.

-20555 Michael A. Duggan, Esquire College of Business, Administration University of Texas Austin, Texas 78712 Docketing and Service Station Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D.C.

20555 Jerome

Saltzman, Chief Antitrust

& Indemnity Group U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.C.

20555 Richard S.

Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Joseph

Rutberg, Esquire Lee Scott Dewey, Esquire Fredric D. Chanania, Esquire Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Ann P.

Hodgdon, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Thomas Gurney, Sr., Esquire 203 North Magnolia Avenue Orlando, Florida 32802 Robert E. Bathen Fred Saffer R.W. Beck

& Associates P.

O. Box 6817 Orlando, Florida 32803

George Spiegel, Esquire Robert Jablon, Esquire Daniel Guttman, Esquire Spiegel 6 McDiarmid 2600 Virginia Avenue, N.W.

Washington, D.C.

20037 William C. Wise, Esquire Suite 500 1200 18th Street, N.W.

Washington, D.C.

20036 William H. Chandler, Esquire Chandler,. O'Neal, Avera, Gray 6 Stripling Post, Office Drawer 0

Gainesville,,Florida 32602 Janet Urban,. Esquire U.S.

Department of Justice P.

O.

Box 14141 Washington, D.C.

20044

~ Norman A. Coll, Esquire

Steel, Hector 6 Davis Southeast First National Bank Building Miami, Florida 33131 Donald A. Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division U.S. Department of Justice Washington, D.C.

20530 Charles R.P.

Brown, Esquire Brown, Paxton and Williams 301 South 6th Street P.

O. Box 1418 Fort Pierce, Florida 33450 George R. Kucik, Esquire Mare Gary, Esquire Ellen E. Sward, Esquire Arent, Fox, Kintner., Plotkin Kahn 1815 H Street, N.W.

Washington, D.C.

20006 Benjamin H. Vogler, Esquire U.S. Nuclear Regulatory Commission Washington, D.C.

20555 g

G.

een

-Lowenstein,

Newman, Reis 6

Axelrad 1025 Connecticut

Avenue, N.W.

Washington, D.C.

20036 (202) 862-8400

EXHIBIT A EXTRACTS FROM PROPOSAL FOR DADE COUNTY, FL'ORIDA FOR RESOURCE RECOVERY PLANT

PROPOSAL FOR DADE COUNTY, FLORIDA FOR RESOURCE RECOVERY PLANT PRO3ECT NY-1390 Prepared by, THE BLACK CLAWSON-PARSONS 8( WHITTEMORE ORGANIZATION

.For Resources Recovery (Dade County), Inc.

~

May 11, 1976 OSIS IS toe[

SIVC I'ROI'ERTY OF THE PARSONS S WHITTEMORE/I YDDON ORGANIZATION. AND MUST S ~ CO+CD WITHOUT THEIR EXPRESS PERMISSION GIVEN IN WRITING.

Project No.1390/Dade County INDEX TITLE PAGE Section 1

Section 2 Proposal Process Description 1-1 thru 1-19 2-1 thru 2-16 Section 3 Contract - Construction of the Plant 3-1 thru 3-21 Section 0

~Aendix A. List,of Equipment ITc Buildings B. Specification Sheets Contract - Operation of Plant 3-30 thru 3-0g 3-50 thru 3-202 0-1 thru 0-26 Section 5 Section 6 Section 7 Contract - Sale of Turbo-Generator to Florida Power ITc Light e

Sale of Pathological Incinerator 6-1 thru 6-19 7-1 thru T-3 Parsons R Whittemore Guarantee '-1 thru 5-2 Section 8 Drawings See Next. Page SLACK CL CLAWSON FIBRECLAIM,INC.

~

' &Ox EV PROPOSAI. IS THE EXC

~ IC i/~

XCLUSIVE PROPERTY OF 'THE PARSONS

& WHITTEMORE/I YOOON ORGANIZATION. ANO MUST DUCCO OII COPIEO W T EO WITHOuT THEIR EXPRESS PERMISSION GIVEN IN WRITING-

~

Project NY-1390/Dade County INDEX (Continued)

TITLE Drawings (Continued)

Index PAGE DP -

1101 DP -

1102 DP -

1103 DP -

1100 DP -

1105 DP -

1106 DPF-101 DPF I 102 DPF-103 DPF-100 DPF-105 Site Location Plan Site Plan Plant Layout Plan Plant Offices/Employee Facilities Plant Building Sections Plant Exterior Elevations Process Flow Diagram Power Complex Flowsheet for Steam Generation Power Complex Flowsheet for Power Generation Main Electrical Single Line Diagram Metal and Glass Recovery Plant Parsons R Vhittemore Brochure SLhCK CLA%'SON FIBRECLAIM,INC.

~e

~ ~ ~ E e &0+OSAI. 1$ THE X

• SONS b WHITTPMORK

DESCRIPTION OF PROCESS AND EQUIPMENT Project NY-1390/Dade Co.

Page No. 2-1 A.

Performance Summar i.

~Ca acit Parsons R

Whittemore Organization proposes to

enginee, finance, supply, construct and operate a Solid Waste Resou"ce Recovery Facility for Resources Recovery

{Dade County), inc.

for the Dade County Public Works Department in acco.dance with Request For Proposals For Solid Waste Resource Recovery Facility And Management 5%'D7-70 dated 3uly 31, 1970 and Basic Design And Acceptance Criteria dated April 1976.

The plant will be capable of disposing of 3000 ton. per day, 1S,000 tons per week of residential and commercial rubbish and trash.

The Dade County plant will be designeo according to the developments of the Black Clawson Hydrasposal system and ov<<:

five years operating experience of the commercial demonstratiori

• installation at Franklin, Ohio.

The basic concepts and components used as described in o r

original proposal to the County dated November 11, 1970I remain virtually unchanged.

An exception is non-ferrous metals recovery, and in the improved separation and sorting of glass.

Outstanding progress has been made at Franklin inthe past year in these areas.

The Dade County Resource Recovery plan.

will include the following commercially proven components:

Processing solid waste through a

Hydrapulper, which includes pulping, grinding, classification and screening to separate and recover organic from inorganic materials.

b.

Power Ce Recovery of energy values from solid waste by burning the organic, combustible fraction in boilers to produce steam for the generation and distribution of electricity, by Florida Power It. Light Company.

Metal Reclamation Separation and recovery of ferrous and non-ferrous metals for sale and recycle.

SLhc LhCK CLAWSON F}BRECLAIMINC.

~

~ ~ I

~ PIOPO

~e 4 Ota SAI. IS T WHITTEMOR

~'IMOSVCCD OII COPI ED WITHOUT THEIR EXPRESS pCRMISSION GIVEN IN WRITING

F.

Electric Power Generation Project NY-1390/Dade County Page No. 2-12 A turbo generator module, complete with transmission facilities, will be provided for the account of the Florida Power dc Light Company.

Two 35 megawatt, 00 Mva, hydrogen cooled turbo generator sets will be I!rovided.

The turbines will be supplied with steam at 600 psig, 750 F. at the throttle.

The turbines will be condensing, with extraction at 178, 32 and 10psig to provide low pressure steam for the boiler 'oom auxiliaries.

Each turbine will have a water cooled condenser.

Each condenser will have a condensate pump, and a third standby condensate pump will be instailed.

Electr!city will be generated at 13,800 volts.

included for the Florida Power R Light account will be the necessary 13.8 Kv bus and structures, 13.8 Kv circuit breakers, 13.8/200 Kv step up transformer, and transmission line to the Florida Power 2 Light 200 Kv distribution line.

Also included will be the necessary instruments and control panels.

A 25 ton bridge crane willalso be provided.

I 0'ater cooled condensers will be provided for the turbines, this will be a clos d circuit system.

The cooling water will be circulated from the condensers to cooling towers and back to the condensers.

Blowdown from the ccoling tower will be used as make-up water in the processing part of the plant.

The cooling tower will be a six cell mechanical draft crossflow unit.

Three 35,000 GPM circulating pumps, which includes a spare, will be prov!Ced.

bLhCK CLAWSON FIBRECLAlM INC

~ $ $ ~

SAL IS THE EXCLUSIVE PROPERTY Or THE PARSONS S WHITTEMORE/LYOOON OROANI?ATION. ANO MUST loOOOuCCO OR COPI IR EIIPRESS PER

EXHIBIT B EXTRACTS FROM PURCHASE CONTRACT BETWEEN METROPOLITAN DADE COUNTY, FLORIDA AND RESOURCES RECOVERY (DADE COUNTY), INC.

009013076 SLL/gmb 3302.04-01-20 PURCHASE CONTRACT Between METROPOLITAN DADE COUNTY FLORIDA.

and RESOURCES RECOVERY DADE COUNTY INC.

DATED:

SEP ~ 8 1976, 19v6

PURCHASE CONTRACT FOR SOLID NASTE DISPOSAL FACILITY THIS AGREEMENT, made and entered into as of this Q/

day of 1976 by and between METROPOLITAN DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, acting b>

and through the BOARD OF COUNTY COMMISSIONERS (the "County"),

party of the first part; and RESOURCES RECOVERY (DADE COUNTY),

INC.,

a Delaware corporation (the "Seller"), party of the second part.

WITNESSETH'hat the parties hereto, for the consideration herein set forth, mutually agree as follows:

ARTICLE I Definitions 1.01 Acce tance Date.

The "Acceptance Date" shall mean the

', da<< that the County accepts the Facility in accordance with

'ection 7.'03(a) or 7.05(a)(i) hereof, whichever is applicable.

1.02 Commencement Date.

The "Commencement Date" shall mean the date that the County issues a notice to proceed to the Seller in accordance with Section 11.03 hereof.

P 1,03 Com letion Date.

The "Completion Date" shall mean that date when the Facility and Landfill Area have been constructed in accordance with the specifications attached hereto as Appendices "A", "B", "C" and "D" all structures, equipment and materials are in place and all site and other improvements have been made; and the Landfill Area has been approved for operation by the Florida Department of Environmental Regulation.

The Completion Date shall be deemed to have been reached when the Seller certifies, and the Independent Engineer recommends, to the County that the Facility and Landfill Area are complete in'he afore-described manner;

provided, however, that in tQe event that the Seller certifies on the "Completion Date" and the Independent Engineer does not recom-

~end to the County that the afore-described conditions have been

~<<, the Independent Engineer shall specify in reasonable detail

<"e reasons that the Facility and Landfill Area are not complete i~ <he above-described manner within fifteen (15) days after the

>>~ependent Engineer has received written 'notice of certification by the Seller or the Independent Engineer shall be deemed to have

~a<< such recommendation.

2

10'D' C'. "D'gCP'y" 1

11 h

capacity to Process 18,000 Tons of Solid Naste per week in accor-dance with the Acceptance Criteria attached hereto as Appendix IIEII 1.05 Electrical Generation Facilit The "Electrical Genera-tion Facility" shall mean the turbo-generator and the facilities relating thereto to be owned by Florida Power and Light and to be built pursuant to an agreement to be entered into with Florida Power 5 Light Company as provided in Section 11.02 hereof and as nore particularly described in such agreement.

1.06

~Facilit The "Facility" shall mean the structures, equipment and improvements forming part of the installation to be located on the Site, designed to be capable of processing 18,000 e

Tons of Solid Naste per week and reclaiming and recycling materi-als included therein and burning the combustible portion thereof for the production of steam, including a Pathological Waste inciner-a<<r designed to be capable of disposing two (2) tons of Patho-logical Waste per day, but excluding the.Electrical Generation

>>cility.

The Facility is more particularly described in the sP<cifications'attached hereto as Appendices "A", "B" and "C".

3

1,07 H dras osal Process.

The "Hydrasposal Process" shall meal a wet shredding technology that reduces the volume of Solid paste by separating it into combustible and noncombustible compo-gents and after reclamation of the noncombustible portion thereof, the remaining material is in the form of fuel which is capable of being burned autogenously.

1.08 Inde endent En ineer.

The "Independent Engineer" shall mean a Florida Registered Professional Engineer, unaffiliated with the County, who is selected by the County and approved by the Seller.

The County shall submit to the Seller a list of Florida Registered Professional Engineers from which the County has re-ceived proposals in accordance with Dade County Ordinance 76-42, and the Seller shall have ten days to notify the County of the engineers, if any, of which She Seller does not approve.

There-a~ter, if the County selects an engineer from such list (other than those engineers of which the Seller has notified the County it does not approve),

the Seller shall be deemed to have approved

<< such engineer.

In the event that the Independent Engineer resigns or becomes incapable of undertaking his. duties, the County s>>11 select the successor Independent Engineer with the approval

<< the Seller in the afore-described manner.

4

1.09 Landfill.

"Landfill" or "Landfilling" shall mean to dispose of Solid Waste or materials which cannot be reclaimed from, or residue remaining after the Processing of, Solid Waste on land in a sanitary manner by grading and covering in conformity hdh717.7 f hR1 f

h fl d~D f

3

~R1*

dh P

443 4

h Pl d

3 and any. other rules and regulations thereunder and any and all similar or successor

statutes, ordinances, rules and regulations pf any public body having jurisdiction thereof applicable to the disposal of waste.

1.10 Landfill Area.

The "Landfill Area" shall mean the area within the Site designated for Landfill purposes as set forth in Section C.3 of Appendix "C" attached hereto to be construed in accordance with specifications included in Appendix "D" attached hereto.

1.11 Mana ement Contract.

The "Management Contract" shall mean the agreement between the same parties hereto of even date, PUrsuant to which the County retai'ned the Seller to manage and operate the Facility and Landfill Area.

1.12 Patholo ical Waste.

"Pathological Waste" shall mean hU~an and animal parts, animal carcasses of 125 pounds or less, 5

pathological specimens and contaminated

bandages, clothing and implements resulting from the operation of hospitals or medical clinics.

1.13 Process.

"Process" or "Processing" shall mean to pro-cess and dispose of, or 'the processing and disposal of, Solid 4'aste by the Hydrasposal Process and the production of steam by burning the autogeneous fuel created thereby.

1.14 Sj.te.

The "Site" shall mean such real property as is leased to the Seller gy the County in accordance with Section 3.01 hereof and a lease in the form of Exhibit "C" attached hereto and as particularly described therein.

1.15 Solid Naste.

"Solid Waste" shall mean all forms of t

garbage, garden trash, commercial waste, noncombustible

refuse, rubbish, waste, bulky waste (including white goods, furniture, and other large rubbish items),

bundled garden trash and containerized h'aste and minor amounts of Pathological Naste (to the extent that they are contained in the normal Solid Naste stream);

as each of

said terms is defined in Dade

~Count Code Section 15-1 or any suc-cessor law ordinance, rule or regulation, but excludes hazardous jndustrial wastes, 'i'quid waste, Pathological

Naste, sewage, junk automobiles and bulk shipments of manure.

1.16 Ton.

"Ton" shall mean one short ton of 2,000 pounds.

7

I

ARTICLE V Ownershi of Facilit i.Ill o~h' 0

h'p f

h P

'1' d

h

'gh

use, or license 'the use of, all patents,

process, trade secrets know-how and other proprietary information required for the Operation of the Facility and Landfill Area, and all improvements c: every kind and description installed by the Seller on the Site, shall be the County's property upon passage of title in accordance

~.'th Section 5.02 hereof.

S.D2 Title.

Title to the Facility and Landfill Area shall pass to the County free and clear of all liens, attachments,

charges, or other encumbrances howsoever

incurred, upon payment of the Contract Price or 60: of the Contract Price, whichever first

eicUrs, as provided in Section 3.09(a) and 3.09(d) hereof.

The

,. Seller waives (and any subcontractor or sub-subcontractor shall en<<r into an agreement with the Seller to waive) any rights

>>ssert any liens against the Facility, the Landfill Area or the

'<< for any reason whatsoever and the Seller shall discharge any liens, a:<achments,

charges, or other encumbrances arising out of the

~>>s<t'uction or other operations of the Seller against the. Facility, 30

.;~ gandfill Area or the Site and further shall discharge of op(

by bond or otherwise, any lien, attachment,

charge, or

-.gyp encumbrance which may be filed against the Facility or

,;)fill Area or Site by any contractor, subcontractor, materialman

p. O<her person deriving his claim from the Seller within thirty

") days after such filing, except a lien imposed by construction

.qqders pursuant to financing obtained in accordance with Section

'::,pl hereof, which shal'1 be satisfied and discharged at or prior t: the date that title passes to the County pursuant to this

$::tion 5.02.

The Seller indemnifies and agrees to hold the

{;:.sty harmless from any and all judgments, expenses or costs,

.-.:luding attorneys'ees (including fees incurred in prosecuting

-. defending any appellate proceeding) incurred by the County as a

.suit of any such lien or encumbrance.

I 5;03 Risk of Loss.

The Seller shall retain all risk of loss

=r the Facility, the Landfill Area and the Site for'amages of

!'ature until acceptance by the County of the Facility on the

'=~prance Date in accordance with Section 7.03(a) or 7.05(a) (i)

~:<<~, whichever is applicable.

After any loss or damage to the

">>sty, Landfill Area or the Site for which the Seller shall

"'<<he risk of loss or damage, the Seller shall with due dili-31

glance and dispatch, be responsible for replacement of lost or garaged items at its own expense.

This provision shall not be gppstrued to prevent the Seller from recovering the proceeds of any applicable insurance covering such loss or damage.

32

EXHIBIT C RESTATED AND AMENDED AGREEMENT FOR ASSUMPTION OF RIGHTS AND OBLIGATIONS UNDER ELECTRICAL GENERATION FACILITY AND STEAM DELIVERY AGREEMENT

~

~

RESTATED AND AMENDED AGREEMENT FOR ASSUMPTION OF RIGHTS AND OBLIGATIONS UNDER ELECTRICAL GENERATION FACILITY AND STEAM DELIVERY AGREEMENT THIS AGREEMENT, made and entered into as of this 5th day of May, 1978, by and between METROPOLITAN DADE COUNTY,

FLORIDA, a political subdivision of the State of Florida, acting by and through the Board of County Commissioners (the I

"Countv"), party of the first part, and RESOURCES RECOVERY (DADE COUNTY), INC.,

a Delaware corporation

("Contractor" ),

party of the second part.

WITNESSETH WHEREAS, the County has undertaken the development and operation of solid waste resource recovery facilities for the processing of solid waste and the recovery and utiliza-I tion of materials created thereby; and

WHEREAS th County has entered znto a contract with d

urchase of the Contractor or f

the design, construction an p

the "SWPF Purchase Con-a solid waste processing facxlxty

(

e tract" )

. and anot er con rac h

ontract with the Contractor for the operation an main d

aintenance of such facil

'it

{the "SWPF Han-which facility is to be designed and agement Contract" ),

w xc construe et d to reclaim and process the solid waste so as to and to produce heated steam through prepare autogenous fuel an o

f el (the "Solid Waste Processing the combustion of this ue Facility" or the "SWPF"); and uced b

the Solid Waste WHEREAS, the heated steam produce y

used in an electrical genera-Processing Facility is to be use tion facility {the "EGF" the "EGF Facility" or the "Elec-hich is to be designed and trical Generation Facility

) whic h

solid waste resource recovery

- constructed as part of t e so i facilities; and e Electrical Generation WHEREAS, the construction of the Ele en a ement by the County Facility is a necessary part of the eng g

ion of the Solid Waste

<< the Contractor for the construction o

the SWPF Purchase Contract; Processing Facility pursuant to the and

WHEREAS, the sale of steam from the Solid Waste Process-ing Facility to the operator of the Electrical Generation Facility is a necessary part of the engagement by the County of,the Contractor for the operation of the Solid Waste Pro-

~ cessing Facility pursuant to the SWPF Management Contract; and WHEREAS, it is the desire of the parties that the Electrical Generation Facility be owned by Florida Power Light Company, a public utility company located in Flor ida

("FPL" ),

and that the steam produced by the Solid Waste Processing Facility be purchased by FPL for use in the Electrical Generation Facility which is to be operated by FPL to generate electricity for the FPL system, which serves the, residents of Dade County, Florida; and WHEREAS, the parties have requested FPL to enter into a contract for the purchase of,the Electrical Generation Facility and the steam produced by the Solid Waste Process-ing Facility, and FPL has requested that the contract be with the County and not with the

~ Contractor as direct party; and

WHEREAS, as a result of FPL's request, the County has entered into a contract, dated as of October 18, 1977<

with FPL for the construction of the Electrical Generation Facility 'and the sale of steam produced by the Solid Waste Processing Facility

( the "EGF Contract" )

and

has, as a

result thereof, agreed to certain obligations under such

contract, some of which will, in fact, be performed by the Contractor and not the County; and WHEREAS, the County wishes the Contractor to assume certain responsibilities of the County under the EGF Con-tract and to receive payments due the County with respect to the sale of steam to FPL; and WHEREAS, thh County and the Contractor executed as of Harch 22,

1978, an Agreement for Assumption of Rights and Obligations under 'Electrical Generation Facility and Steam Purchase Agreement

{the "Original Assumption Agreement" )

which Agreement was intended to accomplish the above pur-poses; and

WHEREAS, PARSONS

& WHITTEMORE, INCORPORATED, a New York corporation

{"Guarantor" ), has executed a Guaranty

{ the "Assumption Guaranty" ), dated as of Naich 22, 1978,, in favor

<< the County guaranteeing performance of the obligations

<< the Contractor and its permitted assigns under the Ori-ginal Assumption Agreement, a copy of which Guaranty is at-tached hereto as Exhibit A; and

WHEREAS, Guarantor has ratified and confirmed the con-tinuing validity of the Assumption Guaranty by execution of a Ratification of Continuing Guaranty (the "Assumption Guaranty Ratification" ) of even date hereof, said guaranty

, instrument being executed in favor of the County, a copy of which instrument is attached hereto as Exhibit B; and WHEREAS, the parties desire to clarify and otherwise modify the terms of the Original Assumption Agreement through replacement of all of its terms and conditions by those of this Agreement; NOW',

THEREFORE, in consideration of the above-recited premises and the following promises, it is agreed as fol-lows 1.

Definitions.

Terms used herein and defined in the EGF Contract shall have the same meanings herein unless this Agreement provides. otherwise.

2.

Construction of the Facilit (a) the Contractor shall design, finance (during construction) and construct 'the Electrical Generation Facility, as provided in the EGF Contract in accordance

with, Sections 5.1 through 5.10, Section 5.16, Sections 8.1 through 8;3, Section 9.1, Section 10.0, Section 11.0, Section 12.0, Section 14.0, Section 17.0, Section 18.0 and

Section 22.0~(provided that the indemnification contained in Section 22.2 shall relate solely to the hiring practices of the Contractor and its subcontractors),

of the EGF Contract.

The Contractor shall also transfer title to the EGF Trans-,

mission Facilities and the Facility to the County or to FPL, as directed in writing by the County, in accordance with Sections 7.0 and 19.2 of the EGF Contract.

(b) Notwithstanding anything to the contrary

herein, the Contractor shall not be required to make any

changes, as provided in Sections 5.2.1.5 or 17.0 of the EGF l

Contract, unless the Contractor agrees in writing (i) to all changes prior to incorporating the change into the Hork, and (ii) to the change in price, if any, resulting from any such change.

Any increase in the purchase price resulting from any such change shall be paid to,the Contractor upon mutually agreeable terms.

3 ~

Sale of EGF and Steam.

After construction of the Electrical Generation Facility, the County is obli gated under the EGF Contract to sell the Electrical Generation Faci>>ty to FPL and to deliver and sell Quality Steam to FPL in accordance with Sections 5.12, 5.13 and 5 ~ 14 of the EGF C>>tract, including, but not limited'o, obligations to make payments to FPL in accordance with Section 5.19.of the EGF

Contract and to be responsible for damages resulting from the faulty operations of the SWPF and nonquality ste' accordance with Sections 8.4 and 5.15 of the EGF Contract, and the Contractor shall assume all of the County's obliga-tions under such sections, as if the Contractor were a party to the EGF Contract in lieu of the County.

4.

Pa ment, of Rebates.

The Contractor hereby uncon-ditionally assumes, and shall be primarily liable to FPL for, the County's obligation to pay to FPL any and all pay-ments pursuant to Section 5.19 of the EGF 'Contract, and the related Section Ah3.2 of Appendix "A" thereof, and the Con-tractor shall make all payments required to be made pursuant to the terms of the EGF Contract by the County to FPL directly to FPL if requested to do so by the County; other-

wise, such payments will be made to the County by the Con-tract'or.

The Contractor further agrees to pay the County any amount of the monthly Purchase Price (as calculated in Section A.2.1(a) of the EGF Contract) not paid to the County by FPL.

Provided, That, the Contractor shall be relieved of such obligations upon a material breach of the EGF Contract by FPL or by'he

County, or upon a material breach of this Agreement by the County.

provided further, That where such amount not paid to the County by FPL results from,an adjustment to the monthly purchase price as provided in Section A.3.1. of Appendix A

to the EGF Contract due to insuf ficient steam delivery by the Contractor, the Contractor shall be relieved of such obligations to the extent that such insufficient steam delivery is caused by the failure of the County to deliver the required quantitites of Solid Waste to the SHPF in accordance with the SWPF Management Contract.

5.

All Other Obli ations and Liabilities.

Except as otherwise provided in this Ag reement, the Contractor unconditionally,assumes all r espons ibi 1 ity for the performance by the County of its obligations under the EGF Contract and for all liabilities of the County arising out of the BGF Contract provided however that the Contractor shall not assume the obligations or the liabilities of the County. provided for in Sections 5.11, 5.17,

5. 18,

6. 2, 9

~ 2.2p 9.2.3 and 15.5 of the EGF Contract, nor will the Contractor receive the right to receive payments for the EGF as provided in Section 6.1 of the EGF Contract.

6.

Performance of Obli ations.

(a)

Obligations of the County under the EGF Con-tract assumed by the Contractor hereunder shall be per-

formed in accordance with, and subject to, the provisions of Section 9

~ 2.1 (release by FPL), Section 13.0 (limitation of liability), Section 16

~ 0

( force majeure),

Section 17.3,3 (extension of time), Section 20.1 (nonexclusive remedy) g Section 24.0 (non-waiver),

Section 25.0 (arbitration) and Section

28. 0 (governing law).

(b)

In addition, the Contractor's performance under this Agreement is subject to the full performance by FPL of each of its obligations under the EGF Contract, including, but not limited to, subsections 6.3 through

6. 9, l

as well as the full performance by the County of each of its obligations under this Agreement, the EGF Contract (except as assumed by the Contractor hereunder),

the SWPF Purchase Contract and the SNPF Management Contract.

Provided that, the conditions provided in this Paragraph 6(b) are limited to situations excusing the Contractor from performance for such periods of time as the non-performance by either the County or by FPL renders it impractical for the Contractor to timely perform hereunder.

7.

Pa ment for EGF ~

The County shall pay the Con-tractor the full Purchase Price of TWELVE NILLION SEVEN HUNDRED FORTY-TWO THOUSAND THREE HUNDRED EIGHTY-ONE AND NPilPP DOLLARS ($12,742,381.00) as adjusted in accordance with Section A.l, Appendix "A" to the EGF Contra~t and Section 2{b) hereof, within five (5) business days after the occurrence of all of the following:

(a)

The County accepts tQe SWPF in accordance with Section 7.03(a), of the SWPF Purchase Contract or the SWPF is deemed to have reached at least '08 of Design, Capacity in accordance with Section 7.03(b) of the SWPF Purchase Contract;

{b)

FPL accepts or is obligated to accept the EGF in accordance with Section 11.0 of the EGF Contract; and (c)

The EGF functions as an 'integral part of the SWPF without using supplemental fuel.

The financing, as described in Exhibit C hereto, to enable the County to pay the Purchase Price in accordance herewith, shall be arranged by the Contractor on behal f of the County.

10

8.

Assi nment of Ri ht to Receive Pa ment for Steam.

The County hereby assigns to the Contractor (a) its right to receive payment from FPL for the purchase of steam pursuant to Sections 6 ~ 6 and 6.7 of the EGF Contract and Sections A.2.2 and A.3.2 of Appendix "A" to the EGF Contract; and (b) f the right to receive recovery payments in accordance with Section A.4 of Appendix "A" of the EGF Contract; provided, however, that all payments'ue the Contractor pursuant to Section 6.6 of the EGF Contract shall be subject to offset for all amounts due the County or FPL pursuant to the EGF Contract which are the obligation of the Contractor.

f. ~.

f ill f, *'fy I

and hold harmless the County from all liabilities arising out of its performance under this Agreement, and shall

defend, indemnify and hold harmless the County, its inde-pendent engineers, their agents, servants and employees from all damages or claims, costs and

expenses, including at-y torneys'ees (including attorneys'ees incurred in any appellate proceeding),

occasioned by, or caused to, any Person or property by the performance of this Agreement, except for injuries and damages caused by the negligence of

<he County, its independent engineers, oi their agents g

servants or employees.

The indemnity provided for in this

Section 9 is in consideration for the allocation by the County to the Contractor of TWO MILLION DOLLARS (q2,000,000. 00) out of the TWELVE MILLION SEVEN HUNDRED FORTY-TWO THOUSAND THREE HUNDRED EIGHTY-ONE AND NO/100

'OLLARS

( $ 12, 742, 381. 00)

EGF Purchase Price as ad justed under the EGF Contract, which purchase price represents the total consideration to the Contractor under this Agreement;

however, the amount-of such payment shall in no way limit the liability of the Contractor pursuant to all the in-demnifications provided for in this Agreement and the parties hereby acknowledge the adequacy of such considera-tion.

10.

Default and Termination.

(a)

This Agreement may be terminated by the County:

(1)

Upon termination of:

(A) the EGF Contract; or (8) the SWPF Purchase Contract; or (C) the SWPF Management Contract after the Solid Waste Processing Facility is accepted in accordance with the provi-sions of the SWPF Purchase Contract; or 12

I

(2)

Upon a material breach of this Agreement by the Contractor.

proyided, That, the County may terminate this Agreement under subparagraphs 10{a) {1) and 10(a) (2) above only upon thirty (30) days prior written notice to the Contractor.

This Agreement will terminate at the end of said thirty (30) day period, unless (i) the Contractor cures the default within such period, or (ii) if more than thirty (30) days is required to correct the default, if the Contractor has commenced and proceeds diligently to make such corrections; (3)

Xn the event of a voluntary or in-t voluntary receivership, bankruptcy or insolvency of the Contractor, upon five (5) days prior written notice to the Contractor.

(b)

This Agreemen't may be terminated by the Contractor:

(1) Upon a material breach of the EGF Con-tract by FPL, which breach results in the termination of the EGF Contract (the Contractor having the right to I

require the County upon five (5) days written notice to terminate the EGF Contract upon the occurrence of such breach by FPL and upon said notice the County shall so terminate the EGF Contract); or 13

(2)

Upon the occurrence of any cause stipu-lated in Section 15.3 of the EGF Contract (other than a

breach or failure to,perform under this Agreement by Contractor) which cause results in the termination of the EGF Contract (the Contractor having the right to require the County upon five (5) days written notice to terminate the EGF Contract on any such occurrence and upon said notice the County shall so terminate the EGF Contract); or (3)

Upon a material breach by the County of this Agreement, or a breach by the County of the EGF Contract which breach results in the termination of the I

EGF Contract; or (4)

(i)

Upon termination of the SWPF Pur-chase Contract and the SNPF Management Contract prior to acceptance of the SWPF in accordance with the terms of the SWPF Purchase Contract; or (ii) upon termination of the SWPF Management Contract.

Provided, That, the Contractor may terminate this Agreement under subparagraphs 10(a) (1) and 10(a) (2) above only upon thirty (30) days prior written notice to the County.

This Agreement will terminate at, the end of-said thirty (30) day Period<

unless (i) the County cures the default within such J

14

per iod or (ii) if more than thirty ( 30 ) days is required to correct the default, if the County has commenced and proceeds diligently to make such corrections; or (c) If the EGF Contract is terminated in accord-ance with Section 15.3 of the EGF Contract, the Contractor shall assume the County's obligations to fully reimburse FPL for all costs incurred by FPL in the project in accordance with Sections 15.4 and 15.6 of the EGF Contract, provided that the Contractor shall not assume s'uch obligation (1) if the EGF Contract is terminated as a result of a breach thereof by FPL; (2) following a breach by the County of this Agreement (which breach resulted in the termination of the EGF Contract);

or (3) if the Commencement Date does not occur within twenty-four (24) months after the effective date of the EGF Contract for any reason not caused by the Contractor.

11.

Term.

(a)

The term of this Agreement shall be for a

period of time from the effective date of this Agreement until twenty (20) years from the Acceptance

Date, unless this Agreement is extended in accordance with subparagraph (b) hereof or sooner terminated in accordance with Section 10 above.

(b)

The term of this Agreement can be extended by the mutual agreement between the parties.

12.

Re resentations.

The County represents and war-rants to the Contractor that the execution and delivery of this Agreement has been duly authorized by all appropriate actions of its governing

body, and this Agreement consti-tutes the legal, valid and binding obligation of the County enforceable in accordance with its terms.

The Contractor represents and warrants to the County that the execution and delivery of this Agreement, and the execution and delivery of the guaranty of performance of this Agreement by the Guarantor have been duly authorized by all necessary corporate action of each corporation and the Agreement and guaranty constitute legal and binding obligations of each corporation in accordance with their respective terms.

13.

S ecific Performance or Performance b

the Count The parties al'so acknowledge tha t money damag es may not be adequate in the event of a breach of this Agree-ment due to the special nature of the Solid Waste Processing I

Facility and the technology required to construct the Solid Waste Processing

Facility, and the County shall have the rig"ti at its option, to bring an action for specif ic per-for>>nce in the event that the Contractor fails to perform

>ts obligations under this Agreement.

16

In the alternative, in the event that the County terminates this Agreement in accordance with the terms hereo f the County may elect, upon notice to the Contractor g

to enter the site and complete construction of the EGF with its own personnel or agents.

In such event, the Contractor shall turn over to the County or its agents all proprietary information necessary for completing the Electrical Genera-tion Facility, all machinery, equipment and materials purchased for or installed in the EGF and shall assign to the County rights to use all patents, processes, trade secrets and know-how required for construction and operation of the EGF and any contracts, purchases or subcontracts made by the Contractor.- for the construction of,the EGF.

The County shall pay'he Contractor an amount equal to the costs of the Contractor expended to the date of notice, subject to offset by any actual damages incurred by the County as a

result of nonperformance by the Contractor.

If FPL exer-cises"its rights under gl5.5 of the EGF Contract prior to acceptance of the EGF in accordance with the terms thereof, any monies paid by FPL to the County shall be paid to the Contractor.

The rights provided the County by this Section 13 shall not be in lieu of any other rights and remedies that th<<ounty may have, including money damages.

14 Performance b

the Contractor.

In the.event of

>>Y dispute arising over the provisions of this Agreement, 17

the Contractor shall proceed with the timely performance of its obligations hereunder during the pendency of any legal pr other similar. proceedings to resolve such dispute.

1

.~

h' h

11 b

by and construed in accordance with the laws of the State of Florida.

Subject to Section 16 hereof, the Contractor by execution of this Agreement, and Parsons

& Nhittemore, Incorporated, by execution of the guaranty of performance of this Agreement, agree to submit to service of process and jurisdiction of the State of Florida for any controversy or claim arising out of or relating to this Agreement or suck

guaranty, or if the Federal courts shall have jurisdiction

thereof, to the, jurisdiction of the Federal Southern District Court of Florida.

16.

Arbitration.

Any controversy or claim arising out of or relating to this Agreement, or breach hereof, shall be settled by arbitration in accordance with the same proce-dures;.set forth in Section 25 of the EGF Contract.

17.

Amendments.

The obligations of the parties may be modified or additional undertakings may be agreed upon only by written instruments signed by the parties, and in the event that it is necessary or desirable to.amend the EGF

Contract, the parties hereto shall act reasonably and in good faith with respect to any amendment(s) of this Agree-ment necessary to.reflect the proposed amendment to the EGF Contract.

18.

A reement Bindin This Agreement shall be bind-ing upon the successors and assigns of the parties when assigned in accordance with Section 20 below.

19.

Re resentatives.

The authorized representatives of the County for purposes of designating representatives and giving notices and for other purposes under this Agree-ment shall be the County Manager.

The authorized represen-tative of the Contractor for purposes of this Agreement shall be Mr. Peter Alevra, c/o Parsons 6 Nhittemore, In-corporated, 200 Park

Avenue, New York, New York 10017.

Either party may change its representative upon five (5) days written notice to the other party.

(a)

The Contractor may freely assign by written instrument (a copy of which instruments shall be provided to the County) all or part of its ri'ghts and obligations under this Agreement to a subsidiary or an affiliated company which-is,"directly or indirectly, majority owned by the Con-tractor or the Guarantor.

Provided, That, said assignee shall expressly assume such rights and obligations of the Contractor relating to that Portion of this Agreement which is being assigned; P

Provided further,'hat such assignment shall not affect the obligations of the Guarantor under this 'greement, the 19

Assumption Guaranty, or the Assumption Guaranty Ratification and no other assignment, except any assignments of any pro-ceeds due the Contractor hereunder, may be made by the Con-tractor without the County's consent.

(b)

This Agreement may not be assigned by the County without the Contractor's consent.

21. Conditions Precedent.

The obligations of the Contractor hereunder are conditioned upon it being able to obtain construction financing sufficient to enable it to perform its obligations hereunder, which financing shall be acceptable to it and not in conflict with the terms of any other agreement to which it is subject.

I The obligations of the Contractor hereunder shall commence upon the Commencement

Date, and are further subject to such obligations not being in conflict with or a viola-tion of any agreement to which it is subject.

22.

Notices.

All notices and consents required or contemplated by this Agreement shall be in writing and shall be deemed given by a party when mailed, via registered

mail,

<irst class, postage

prepaid,

'addressed as follows:

If to the County:

The County Manager Dade County Courthouse Miami, Florida 33130

.(with a copy to the County AttorneY at the same address) 20

If to the Contractor:

= President Resources Recovery (Dade County), Inc.

c/o Parsons

& Whittemore, Incorporated 200 Park Avenue New York, New York 10017 (with a copy to its counsel at the same address)

Changes in the respective addresses to which such notices may be directed may be made from time to time by either party. ~b'I'.h 1 yp

t yp of any provision) within this Agreement be held un'consti-tutional or otherwise null and void by a tribunal of com-petent jurisdiction, <said provision or part thereof shall be severed from this Agreement and the remainder of this Agree-ment shall continue to be in full. force and effect.

24.

Non-Waiver.

Any waiver, whether in writing or by failure of the waiving party to timely act, of any require-ment-herein or of any breach of any requirement herein:

(a) shall not constitute a waiver of any sub-sequent requirement herein or of any subsequent breach of any requirement

herein, and 21

(b) shall not otherwise affect the rights of the J

waiving party under this Agreement with respect to any said subsequent requirement or subsequent breach of said requirement.

25.

Re lacement of Ori inal Assum tion A reement.

This Agreement sets forth the entire agreement between the parties hereto with respect to the assumption by the Contractor of certain rights and obligations of the County under the EGF Contract, and annuls, replaces and specif ically supersedes all terms and conditions of the Original Assumption Agreement.

I 26.

~Finalit This written Agreement is intended as the final, complete, and exclusive statement of the terms of the agreement between the parties.

The parties agree that Parol or extrinsic evidence may not be used to vary or contradict the express terms of this Agreement and that recourse may not be had to alleged prior dealings, usage of trade>

course of dealing, or course of performance to ex-Plain or supplement the express terms of this Agreement.

IN WITNESS

WHEREOF, the said Metropolitan Dade County<

Florida has caused this Agreement to be executed in its name 22

by the County Manager, attested by the Clerk of the Board Qf County Commissioners, and has caused the seal of said Board Of County Commissioners to be attached hereto; and the said party of the second party has caused this Agreement to be executed in its name by its Executive Uice-President, at-tested by its Secretary and has caused the seal of said corporation to be hereto attached< all on the day and year first above written.

r METROPOLITAN DADE COUNTY'LORIDA BY ITS BOARD OF COUNTY COMMISSIONERS BY:

( CORPORATE SEAL )

County Manager Attest:

RICHARD P.

BRINKER er of th ard BY Deputy Clerk CO.ti it<'r.

~ Q (Party of the First Part) 23

Witnessed:

RESOURCES RECOVERY {DADE COUNTY),

INC.

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( CORPORATE SEAT, )

BY~.. ~~~ ~.

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Me-President (Parties of the Second Part)

Guarantor, although not a party to this Agreement, hereby agrees to and accepts the terms and conditions stated in this Agreement.

ACCEPTED AND AGREED TO:

PARSONS

& WHITTEMORE, IN-CORPORATED Witnessed:

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EXHIBIT A 796-77 GUARANTY

$~E d(

THIS GUARANTY, made as of the ~ day of ~wary, 1978, by PARSONS

& WHITTEMORE, INCORPORATED, a New York r oration whose mailing address is 200 Park Avenue, Ne~ York, New York 10017 (hereinafter called the "Guarantor" ), to and for the benefit of Metropolitan Dade County, Florida, a political subdivision of the State of Florida, acting by and through the Board of County Commissioners (hereinaf."~er called the "County")'.

WI TNES SETH WHEREAS, Resources Recovery (Dade County), Inc.

a Delaware corporation (hereinafter called the "Contractor"),

a who11y-owned subsidiary of the Guarantor, is desirous of entering into an.agreement with the County pursuant to which the Contractor will assume certain rights,and obligations of the County under an Electrical Generation Facility and Steam Pur-chase Agreement between the County and Florida Power

& Light Company

("FPL") (the "EGF Contract" ),

a copy of which is con-currently herewith being submitted to the County (hereinafter called the "Assumption Agreement" ); and WHEREAS, The County is not willing to enter into th<<>>umption Agreement with the Contractor unless the Con-t>>cto".'s obligations thereunder are unconditionally guaranteed by the Guarantor; and

796-77 WHEREAS, Guarantor is willing to unconditionally guarantee the performance of the Contractor;

NOW, THEREFORE, to unduce the County into entering into the Assumption Agreement with the Contractor, the Guarantor, in consideration of the foregoing and the sum of ONE AND NO/100 DOLLAR ($ 1. 00),

cash in hand paid by the County to the Guarantor for the delivery of this guaranty, the receipt of which is hereby acknowledged, agrees as follows:

(1)

That the Guarantor unconditionally guarantees the performance by the Contractor of all of the Contractor's obliga-tions under the Assumption Agreement with the same force and effect as though the Guarantor were a party to the Assumption Agreement and was 'jointly and severally obligated thereunder with the Contractor.

(2)

That the Guarantor waives any and all defenses in any action brought to enforce this guaranty or any part "hereof, at law or in equity, except the defense that (a) the County has not performed its obligations under the Assumption Agreement, the EGF Contract (except as assumed by the Contractor in the Assumption Agreement),

the SWPF Purchase Contract and the S"'PF 0P<ration and Maintenance

Contract, as defined in the Assumption AG<<e>ent, or (b)

FPL has not performed its obligations under

0 3

796-77 the pGF Contract.

without limiting the oenerality of the fore-

@ping in any way, but merely by way of illustration, the Guarantor specifically waives any and all technical,.dilatory a-.,d nonmeritorious defenses and any defense predicated upon there having been:

(i) any amendment made to the Assumption Agreer;.ent; (ii) any assignment or transfer made of the Assumption A~reerient by the Contractor, (iii) any merger, consolidation or amalgamation of the Contractor into or with any other com-pan"; (iv) any insolvency, bankruptcy, liquidation, reorganiza-tion, arrangement, readjustment, composition, winding up, dis-solution or other similar proceeding involving or affecting the Contractor; and (v) an indulgence or forebearance in the enforce-cent of any term of the Assumption Agreement.

(3)

That the Guarantor waives notice of acceptance of thisguaranty and notices of every kind and consents to any and all changes in the terms, covenants and conditions contained in the Assumption Agreement.

(4)

That this guaranty may be enforced by the County without first resorting to any action against the Contractor or exhausting any other remedies which the County may have.

{5)

This guaranty shall be governed by the laws of the State of Florida and subject to Section 16 of the Assumption "Kr<eaent by execution of this guaranty, the Guarantor agrees

to submi t to service of process in the State of Florida for any c aim laim or-controversy arising out of this guaranty or re atxng o an to any breach hereof, or if the Federal courts shall have jurisdiction thereof, to the jurisdiction of the Southe n

D'trict Court in hliami, Florida.

(6)

That this guaranty shall be:

binding upon

a. d en crceable against the Guarantor, its successors, assigns an d legal representatives, for the benefit of the Co nt', its successors and assigns, (7)

The obligations of the Guarantor hereunder are conditioned upon the issuance of this Guaranty not being zn I

conflict with or in violation of the terms of any agreement to which the Guarantor is subject on the Commencement

Date, as defined in the EGF Contract, I '> WETNESS WHEREOF, the Guarantor has executed this instrument the day and year first above written.

Signed, sealed and delivered in the presence of:

PARSONS 6 MLTTTEl10RE, INCORPORATED By:

C/ill<<' 'i'+ gl!Cggq~pgf h

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Attest: ecret rP I

RATIFICATION AND CONTINUING GUARANTY (ASSUMPTION AGREEMENT)

THIS RATIFICATION AND CONTINUING GUARANTY, made and entered into as of this 4th day of May, 1978, by PARSONS WHITTEMORE, INCORPORATED, a

New York corporation, whose mailing address is 200 Park Avenue, New York, New York 10017 (hereinafter called "Guarantor" ), to and for the benef it of Metropolitan Dade County, Florida, a political subdivision of the State of Florida, acting by and through the Board of l

County Commissioners

{hereinafter called the "County" ).

W I TN ESSE TH WHEREAS, Resources Recovery (Dade County), Inc.

a Delaware corporation (hereinaf ter called "Resources Recovery" ) which is a wholly-owned subsidiary of Guarantor, has entered into an agreement with the County entitled Agreement For Assumption of Rights and Obligations Under Electrical General Facility and Steam Purchase Agreement (the "Original Assumption Agreement" ), dated as of March 22'978'ursuant to which Resources Recovery has assumed certain rights and obligations of the County under an

Electrical Generation Facility and Steam Delivery Agreement

<<EGF'ontract" ), executed as of October 18,

1977, between the County and Florida Power and Light Company, a

J Florida corporation (hereinafter called "FPL"); and

>HEREAS, the Guarantor as of March 22,.1978 provided to the County an unconditional Guaranty (the "Guaranty" ), of all promises and obligations of Resources Recovery arising or to arise out of the Original Assumption Agreement;

and, VHEREAS, Resources Recovery and the County intend to replace the Original Assumption Agreement with a Restated and Amended Agreement For Assumptions Of Rights and Obligations under Electrical Generation and Steam Delivery Agreement (the "Restated Assumption Agreement" ) to be dated as of May 5, 1978; and WHEREAS, the County and Guarantor hereby expressly acknowle'dge and affirm that the Guaranty was intended to and does unconditionally and irrevocably guarantee the rights and obligations of Resources Recovery and those of its successors, legal representatives and permitted assigns under the Assumption Agreement, including all extensions<

renewals, substitutions, amendments and other changes

ted to the'Restated As-luding but not 1 imi e

thereto (inc u i t upon its execution).

sumption Agreemen tor, to induce the County to NOH i THEREFORE, the Guarantor, o

execute the Restate d Assumption Agreement, does hereby agree as follows:

1.

That e

th Guarantor does expre y

ssl

ratify, all amendments to the Restated conf irm, adopt and approve a

to as of this date or at any Assumption Agreement entered xnto as

'f Guarantor had expressly approved time in the future, as x

uar s of the date of execution and agreed to said amendments as o

i hts and obligations of Resources thereof and that the rights an o

i s

le al representatives and Recovery and its successors, lega r

stated Assumption Agreement as permitted assigns under the Restate d are uaranteed by the Guaranty the same is or may be amended are guar as modified hereby; and nded

hereby, remains 2.

That the Guaranty, as amended

's hereby ratif ied and con-in full force and ef fect and is here ant of the rights and obli-firmed as a continuing guaranty 0

e al and their successors, eg gations of Resources Recovery an

representatives,'nd permitted assigns under the Restated Assumption Agreement.

1N HITNESS

vJHEREOF, the Guarantor has executed this instrument the day and year first above written.

Signed in the presence of:

INCORPOl TL'0 PARSONS 4

Nlll 'VT4'i'10RL',

witnessed:

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r Bp:i PresIident (Corporate Seal)

EXHIBIT C

~it~ "/ji'li'<<:>>.~i >'"""~

,eu SrnA:<Opp5 December 8, l977 Resources Recovery (Dade County), Inc.

4 Parsons 6 Nhittemore, Inc.

200 Park Avenue New York, Hew York 10017 Attention:

Mr. Peter Alevra

'xecutive Vice Pr'esident Gentlemen:

You have inquired as to our opinion concerning the feasibility of obtaining funding on behalf of Metropolitan Dade County, Florida (the "County" ) for a period of twenty years for an electrical generation facility (the "EGF") to be acquired and operated in conjunction with a to-be-con-structed solid waste resource recovery facility (the "Re-source Recovery Faci'lity"), all to be situated in the County.

You have advised that you, pursuant to agreements (the SMPF Agreements" ) with the County, will design, construct and operate the Resource Recovery Facility which, with the exception of the EGF, will be funded separate1y by the County in conjunction with'he State of Florida.

You have further advised that the County is 'entering into an agree-ment (the "FPL Agreement" ) with Florida Power 6 Light

<<>Pany

("FPL") for the acquisition of the EGF and the long-

<<rm purchase of steam.

Under the FpL Agreement, you have advised that FPL has agreed to purchase the EGF at a price of $12i742,381 such price to be adjusted by a formula reflecting changes in the cost. of labor, machinery and equipment occuring subsequent to June l, 1976.

Further/

Q//

%< <<<<j"fg<i pier.

ent, has agreed to makee monthly n a monthly basis to repay 1 t d i t rest th of the EGF, with re a

e FPL b

ob1' o

tep cin on its acceptance ear period.

of the EGF.

suc h payments commenc ng of the EGF would not be required prior d

ertain e

thereof.

ts under c rcums

'll in such event, assure tes p ovided fo i th FPL those payments through rebates pro A reement and assumed by you n an Agreemen e understanding, xt xs pr p e un

'o osed that a

f'ng vehicle for the e as a fxnancin trus t,h f d, th EGF.

To secure e

f a

a ld GF to the lenders and zt furth p

11 f th C

t '

ht b t would grant an assignment o

th FPL t oblo a

s d'A" F

th h

.1 of Appen ~x A.2 ~

g its lenders a

pa hin s, that 'f, fo c

a reement to e ex FPL's payments under Section A.2.

uch g o g

that the County would, under al circum deficiency.

onnation made available to us, On the basis of the infonna x

s bject to the executi re xn form and substance suffer r

g and app p

fo pp w

4 from institutional lenders for t e xscusse period.

erely yo Charles A. Ballard Vice President

RATIFICATION AND CONTINUING GUARANTY

( ASSUMPTION AGREEMENT)

'HIS RATIFICATION AND CONTINUING GUARANTY, made and entered 'into as of this 4th day of Mayt 1978'y PARSONS WHITTEMORE,,

INCORPORATED, a

New York corporation, whose mailing address is 200 Park Avenue, New York, New York 10017 (hereinafter called "Guarantor" ), to and for the benefit of Metropolitan Dade County, Florida, a political subdivision of the State of Florida, acting by and through the Board of County Commissioners (hereinafter called the "County" ).

N I TN ESSE TH

NHEREAS, Resources Recovery (Dade County), Inc.,

a Delaware corporation (hereinafter called "Resources Recovery" ) which is a wholly-owned subsidiary of Guarantor p

has entered into an agreement with the County entitled Agreement For Assumption of Rights and Obligations Under Electrical General Facility and Steam Purchase Agreement (the "Original Assumption Agreement" ), dated as of March 22< 1978, pursuant to which Resources Recovery has assumed certain rights and obligations of the County under an

Electrical Generation Facility and Steam. Delivery Agreement (the "EGF Contract" ), executed as of October 18,

1977, between the County and Florida Power and Light Company, a

Florida corporation (hereinaf ter called "FPL" );

and gjfEREAS, the Guarantor as of March 22, 1978 provided to the County an unconditional Guaranty (the "Guaranty" ), of a11 promises and obligations of Resources Recovery arising or to arise out of the Original Assumption Agreement;

and, hHEREAS, Resources Recovery and the County intend to replace the Original Assumption Agreement with a Restated and Amended Agreement For Assumptions Of Rights and Obligations under Electrical Generation and Steam Delivery Agreement (the "Restated Assumption Agreement" ) to be dated as of Hay 5, 1978; and

~HEREAS, the County and Guarantor hereby expressly acknowledge and affirm that the Guaranty was intended to and does unconditionally and irrevocably guarantee the rights and obligations of Resources Recovery and those of i ts successors, legal representatives and permitted assigns under the Assumption Agreement, including all extensions i

renewals, substitutions, amendments and other changes I

thereto (including but not limited to the Restated As-sumption Agreement upon its execution).

NOW, THEREFORE, the Guarantor, to induce the,County to execute the Restated Assumption Agreement, does hereby agree as follows:

I 1.

That the Guarantor does expressly ratify, confirm, adopt and approve all amendments to the Restated Assumption Agreement entered into as of this date or at any time in the future, as if Guarantor had expressly approved and agreed to said amendments as of the date of execution t

thereof and that the rights and obligations of Resources Recovery and its successors, legal representatives and permitted assigns under the Restated Assumption Agreement as the same is or may be amended are guaranteed by the Guaranty as modified hereby; and 2.

That the Guaranty, as amended

hereby, remains in full force and effect and is hereby ratified and con-firmed as a continuing guaranty of the rights and obli-9ations of Resources Recovery and their successors, legal

representatives, and permitted assigns under the Restated 1E Assumption Agreement.

IN HITNESS HHEREOF, the Guarantor has executed this instrument the day and year first above written.

Signed in the presence of:

PARSONS 6

HHITTEb10RE, INCORPORA D

witnessed:,

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By:

I resident (Corporate Seal)

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