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(1) RIDGEWOOD ROC II 2003 LLC
(2) CLP DEVELOPMENTS LIMITED
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DEVELOPMENT SERVICES
AGREEMENT
relating to the development of
additional electricity
generation plants on behalf of
certain within mentioned
Project Companies
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EVERSHEDS
LLP
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115 Colmore
Row
Birmingham
B3 3AL
Tel: +44 121 232 1000
Fax: +44 121 232 1900
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THIS
AGREEMENT is
made the day of 2004
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RIDGEWOOD ROC II 2003 LLC
a Delaware limited liability company
trading in the UK whose registered address is situate at 947
Linwood Avenue, Ridgewood, NJ, 07450, USA ("
Ridgewood "); and
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CLP
DEVELOPMENTS LIMITED a company incorporated in England and Wales with
company number 04502342 whose registered address is situate at
Units 14-15, Queensbrook, Bolton Technology Exchange, Spa Road,
Bolton BL1 4AY (the “ Project Manager
”).
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(A)
Each Project Company:-
(i) owns an operating electricity generating plant
that uses landfill gas extracted from a landfill site pursuant to
an existing NFFO Power Purchase Agreement; or
(ii) has committed to build an electricity generating
plant at a site in order that it may sell the output of the plant
under an existing NFFO Power Purchase Agreement; or
(iii) neither owns nor has committed to build
electricity generating plant pursuant to a NFFO Power Purchase
Agreement but has a landfill site from which landfill gas may be
extracted
(and in the
case of each of (i) and (ii) above such existing or proposed
electricity generating plants including their associated gas
extraction, collection, burning and handling equipment,
transformers, switchgear and other associated plant, machinery
infrastructure equipment and apparatus from time to time shall be
hereinafter referred to as an “Existing
Plant”)
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Each Project
Company with Existing Plant is desirous of adding additional
generating capacity and additional infrastructure improvements at
its Site so that such Project Company might use the surplus
landfill gas to generate additional electricity and each Project
Company with no Existing Plant is desirous of constructing,
developing and operating electricity generating equipment at its
Site in order to generate new electricity, such electricity to be
sold, along with its environmental attributes, to one or more third
parties.
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Ridgewood has
entered into an agreement with CLPE ROC -2 Limited, CLPE ROC -2A
Limited, and the Project Companies dated on or around the date
hereof (“ ROC Project
DSA ”) pursuant to which Ridgewood has agreed to
procure, construct, install, engineer, develop (to Commissioning)
and make available for use by the Project Companies (using monies
provided by the Powerbank II Fund) the additional electricity
generation plants in order that the Project Companies may utilise
the landfill gas extracted from the Site as stated in Recital
(B).
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It is the
intent of the parties hereto that Ridgewood will at all times and,
for the avoidance of doubt, during any period of development
following the date hereof and after Commissioning, be the legal
owner of the Equipment.
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The Project
Manager is willing to be engaged as aforesaid on the following
terms in order to bring about Commissioning.
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In this
Agreement and the Schedules hereto the following words and
expressions shall, unless the context otherwise requires or is
inconsistent therewith, have the following meanings:-
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“
Commissioning ”
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means the stage
at which the installation of the Equipment at the relevant Project
Company Site has been completed and the New Project has been
consistently (over a period of 7 days) exporting electricity to the
National Grid and Commissioned shall have the appropriate
meaning;
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“
Equipment ”
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means in
relation to any New Project, the electricity generating facilities
together with all and any gas extraction equipment, blower fans,
wells, pipes and the transformers to connect the power generation
equipment to the electricity distribution system installed or
constructed on the relevant Site (other than, for the avoidance of
doubt, the Existing Plant);
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"
Export Capacity "
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means the
amount of electricity expressed in megawatts the Equipment is
capable of exporting to the National Grid on a consistent basis
assuming that the Equipment is operating to its maximum
capacity;
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"
Fees "
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means the fees
payable by Ridgewood to the Project Manager pursuant to
Clause 7 ;
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" Group
Company "
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means the
Project Manager and any holding company of the Project Manager and
its/their respective subsidiaries from time to time;
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"
New Project
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means, in
relation to any Project Company, the project for the procurement,
design, construction, installation, development and Commissioning
on a “turnkey” basis of the Equipment and all
associated equipment to be supplied by the Project Manager to
Ridgewood at a given Site pursuant to the ROC Project
DSA;
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“NFFO Power Purchase
Agreements”
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means contracts
with The Non Fossil Purchasing Agency Limited and those in
connection with Scottish renewable orders including any replacement
contract with the Non Fossil Purchasing Agency Limited concluded in
connection with the implementation of the new British Electricity
Trading and Transmission Arrangements in Scotland presently
targeted for on or around April 2005;
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"
Project Budget "
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means in
relation to any New Project, the budget of necessary expenditure
required to bring about the Commissioning of the same, as prepared
by the Project Manager and agreed with Ridgewood’s
Representative;
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“
Project Companies ”
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means those
companies listed in Schedule 1 and any company that may accede to
the ROC Project DSA in accordance with the provisions set out
therein and each one a “Project Company”;
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“Project Manager’s
Representative”
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means Dominic
Greenough or such other authorised representative of the Project
Manager as shall be nominated by it in substitution for such
person;
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“
Ridgewood’s
Representative ”
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means Chris
Naunton or such other director, employee or authorised
representative of Ridgewood as shall be nominated by Ridgewood in
substitution for such person;
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"
Project Timetable "
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means, in
relation to any New Project, the timetable of principal events in
bringing about Commissioning of the same as is set out in Schedule
2 or any changes thereto prepared by the Project Manager and agreed
with Ridgewood’s Representative;
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"
Services "
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means the
services to be provided by the Project Manager under this Agreement
as described in Schedule 3;
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"
Site "
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means, in
relation to any New Project, the landfill site on which the
Equipment concerned is to be constructed and/or
installed.
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1.2
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Words and
expressions defined in the Companies Act 1985 (as amended) (the "
Companies Act ") shall (unless the context clearly
does not so permit) bear the same meanings where used in this
Agreement.
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1.3
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The ejusdem
generis rule of construction shall not apply to this Agreement and
accordingly general words shall not be given a restrictive meaning
by reason of their being preceded or followed by words indicating a
particular class or examples of acts matters or things.
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1.4
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Words importing
the singular shall include the plural and vice versa and words
importing any gender shall include all other genders and references
to persons shall include corporations and unincorporated
associations.
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1.5
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References in
this Agreement to statutory provisions shall be construed as
references to those provisions as respectively amended consolidated
extended or re-enacted from time to time and shall include the
corresponding provisions of any earlier legislation (whether
repealed or not) and any orders regulations instruments or other
subordinate legislation made from time to time under the statute
concerned.
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1.6
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References to
this Agreement shall include the Schedules hereto which shall form
part hereof and shall have the same force and effect as if
expressly set out in the body of this Agreement.
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1.7
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The Clause
headings in this Agreement are for convenience only and shall not
affect the interpretation hereof.
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Ridgewood hereby appoints the Project Manager
and the Project Manager agrees to accept such appointment and to
perform the Services on behalf of Ridgewood in respect of each New
Project upon the terms and conditions set out in this Agreement so
as to enable the procurement, design, construction, installation,
development and Commissioning of Equipment at the Site, or such
works on behalf of Ridgewood as may be agreed in writing between
Ridgewood and the Project Manager.
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3.1
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Subject to
Clause 3.2 , the Project Manager will provide the
Services in relation to each New Project causing the minimum amount
of disruption to the operation of the Existing Plant as possible.
In relation to any New Project, the list of services set out in
Schedule 3 may be amended at any time and from time to time by
written agreement by Ridgewood and the Project Manager in respect
of all or any one New Project.
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3.2
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Where at the
date hereof, some Equipment exists at a Site then, upon payment of
the fee payable in accordance with Clause 7.1 ,
the Project Manager will transfer or cause to be transferred to
Ridgewood legal title to such Equipment and Ridgewood shall make
all such Equipment available to the Project Manager to complete
Commissioning in accordance with the terms hereof.
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4.
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PROJECT MANAGER’S
AUTHORITY
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4.1
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The Project
Manager shall have the authority to act on behalf of Ridgewood as
its agent solely to the extent reasonably necessary for the Project
Manager to carry out its duties and to provide the Services
hereunder and for no other purpose.
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4.2
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Ridgewood shall
indemnify and keep indemnified the Project Manager for any loss,
damage, costs and expenses suffered or incurred by it as a result
of the Project Manager acting or purporting to act on behalf of
Ridgewood where the Project Manager has been authorised in so
acting, either pursuant to Clause 4.1 or
otherwise.
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4.3
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The Project
Manager shall be entitled to hold itself out as agent of Ridgewood
for the purposes of properly carrying out the Services in relation
to each New Project and Ridgewood shall confirm the appointment of
the Project Manager.
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4.4
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At no time
shall the Project Manager claim ownership of or any right, title or
interest to the Equipment and the Project Manager shall do all such
acts and enter into such documents as may be reasonably necessary
and always at the expense of Ridgewood to vest ownership of the
Equipment in Ridgewood.
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5.
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LEVEL OF CARE AND APPLICATION OF
RESOURCES
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5.1
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In carrying out
the Services the Project Manager shall exercise such reasonable
skill, care and diligence to be expected of a competent consultant
and project manager experienced in undertaking services similar to
the Services in relation to projects of a similar size, scope and
complexity to the New Projects.
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5.2
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The Project
Manager shall make all necessary visits to each Site for the proper
performance of the Services, to inspect the progress and quality of
the development of the New Project thereat and generally to ensure
the proper execution and Commissioning of that New
Project.
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5.3
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The Project
Manager shall devote sufficient resources to perform the Services
in accordance with the terms hereof.
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6.
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UNDERTAKINGS OF
RIDGEWOOD
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Ridgewood
undertakes to provide the Project Manager with all information as
may be relevant, required, requested or of assistance to the
Project Manager in the performance of the Services.
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7.1
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Subject to the
provisions of Clause 3.2 and 12.6
, the fees payable to the Project Manager for the provision of the
Services in relation to the New Projects hereunder (exclusive of
VAT) shall be a fixed fee of eight hundred and fifty thousand
pounds (£850,000) per megawatt of rated Export Capacity
Commissioned at each Site pro rated to the extent that such
installed Export Capacity is expressed in other than whole megawatt
amounts (“the Fee”).
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7.2
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The Fee payable
in accordance with the provisions of Clause 7.1
shall be paid by Ridgewood to the Project Manager or, as the
Project Manager may in writing direct, in accordance with the terms
of the Project Timetable and will be paid on demand at such time as
payments are made or commitments are entered into where such
payments or commitments are of a material amount and are entered
into and/or made with respect to a New Project. Materiality is to
be determined by the Project Manager acting in good
faith.
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7.3
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If the Fee or
any part thereof is not paid on the due date, Ridgewood shall be
liable to pay interest on such sum f
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