Exhibit 10.90
[*] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED FROM PUBLIC FILING PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT SUBMITTED TO THE U.S. SECURITIES AND
EXCHANGE COMMISSION. THE OMITTED INFORMATION, WHICH HAS BEEN
IDENTIFIED WITH THE SYMBOL “[*],” HAS BEEN FILED
SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
DEVELOPMENT SERVICES
AGREEMENT
THIS DEVELOPMENT SERVICES AGREEMENT (this "
Agreement ") is entered into this December 23, 2008 (the
“ Effective Date ”) by and between Hoku Solar,
Inc. (" Hoku ") and Hoku Solar Power I, LLC, a California
limited liability company (" Owner ").
Recitals
A . Owner
was formed for the purpose of acquiring, owning, managing,
operating, and, if appropriate or desirable, selling or otherwise
disposing of solar energy generation facilities in Hawaii, in
particular the Project and to engage in the business of acting as
the owner of such solar energy facilities in a manner that will
qualify for the energy credit under Section 48 of the Internal
Revenue Code (collectively, the “ Facilities
”).
B. Owner
is operating pursuant to that certain Operating Agreement entered
into as of the Effective Date by and between Hoku Solar, Inc., a
Delaware corporation, as the managing member, and UFA Renewable
Energy Fund I, LLC, a Delaware limited liability
company, as the investor member (the “
Operating Agreement ”). Capitalized terms
used but not defined herein shall have the meanings provided in the
Operating Agreement.
C. Owner
desires that Hoku provide certain services with respect to the
Facilities.
Accordingly, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Agreement
Section
1.1.
Services . Hoku shall oversee the development and
installation of the Facilities, and shall perform the services and
carry out the responsibilities with respect to the Facilities set
forth herein, and such additional duties and responsibilities as
are reasonably within the general scope of such services and
responsibilities and are designated from time to time by the
Managing Member of the Owner, acting on behalf of the
Owner.
Section
1.2. Hoku’s
services shall be performed in on behalf of the Owner and shall
consist of the duties set forth in the Sections 1.2.1
through 1.2.12 hereof and as provided
elsewhere in this Agreement; provided , however ,
that if the performance of any duty of Hoku set forth in this
Agreement is beyond the reasonable control of Hoku, Hoku shall
nonetheless be obligated to (a) use its best efforts to perform
such duty and (b) promptly notify the Managing Member that the
performance of such duty is beyond its reasonable
control. Hoku shall perform the following:
1.2.1 negotiate
and cause to be executed in the name and on behalf of the Owner
agreements for the design, purchase, installation and testing of
the Facilities, and any agreements for preparation of the site,
including the land on which the Facilities are to be installed or
the furnishing of any supplies, materials, machinery or equipment
therefor, or any amendments thereof, provided that no agreement
shall be executed nor binding commitment made until the terms and
conditions thereof and the party with whom the agreement is to be
made have been approved by the Managing Member unless the terms,
conditions, and parties comply with guidelines issued by the
Managing Member concerning such agreements (or, to the extent such
agreements may already have been executed by Hoku it shall cause
the agreements to be assigned to the Owner);
1.2.2 assist
the Owner in dealing with: (a) the Hawaiian Department
of Transportation Airports (“ HDOT ”), (b) the
Local Utility, (c) governmental agencies, (d) local organizations,
(e) abutters and (f) other parties interested in the development
and installation of the Facilities;
1.2.3 establish
and implement appropriate administrative and financial controls for
the design and installation of the Facilities, including but not
limited to:
1.2.3.1. coordination
and administration of all contractors, professionals and
consultants employed in connection with the design or installation
of the Facilities;
1.2.3.2. administration
of any supply or installation contracts on behalf of the
Owner;
1.2.3.3. participation
in conferences and the rendering of such advice and assistance as
will aid in developing economical, efficient and desirable design
and installation procedures;
1.2.3.4. the
rendering of advice and recommendations as to the selection
procedures for and selection of subcontractors and
suppliers;
1.2.3.5. the
review and submission to the Managing Member for approval of all
requests for payments under any contractor’s agreement, or
any loan agreements with any lending in
