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(1) CLP DEVELOPMENTS LIMITED
(2) CLP ENVIROGAS LIMITED
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DEVELOPMENT SERVICES
SUBCONTRACT
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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CLP
DEVELOPMENTS LIMITED a company incorporated in England and Wales with
company number 4502342 whose registered address is situate at Units
14-15, Queensbrook, Bolton Technology Exchange, Spa Road, Bolton
BL1 4AY (“ CLP ”); and
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CLP
ENVIROGAS LIMITED a
company incorporated in England and Wales with company number
03720203 whose registered address is situate at Units 14-15,
Queensbrook, Bolton Technology Exchange, Spa Road, Bolton BL1 4AY
(“ the Subcontractor ”).
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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 Purchaser Agreements; 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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CLP has entered
into an agreement with Ridgewood dated on or around the date hereof
(“ Development Services Agreement ”)
pursuant to which CLP has been engaged to bring about the
Commissioning of 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 parties
have agreed that CLP shall subcontract its obligations under the
Development Services Agreement to the Subcontractor 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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means Dominic
Greenough or such other authorised representative of the
Subcontractor as shall be nominated by it in substitution for such
person;
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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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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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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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means the fees
payable by CLP to the Subcontractor pursuant to Clause
7 ;
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means the
Subcontractor and any holding company of the Subcontractor and
its/their respective subsidiaries from time to time;
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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 Subcontractor to CLP at
a given Site;
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“NFFO Power Purchase
Agreement”
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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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means in
relation to any New Project, the budget of necessary expenditure
required to bring about the Commissioning of the same, as prepared
by CLP and agreed with Ridgewood’s Representative;
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means those
companies listed in Schedule 1 any company that may accede to the
Project Development and Services Agreement in accordance with the
provisions set out therein and each one a “Project
Company”;
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“
Project Development and Services
Agreement”
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means an
agreement between Ridgewood, , CLPE ROC -2 Limited, CLPE ROC -2A
Limited and various Project Companies defined therein pursuant to
which Ridgewood agreed to, inter alia, to procure, construct,
install, engineer and develop the Equipment to
Commissioning;
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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 CLP and agreed with
Ridgewood’s Representative;
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shall mean
Ridgewood ROC II 2003 LLC a body corporate incorporated with
limited liability in the state of Delaware, U.S.A whose registered
address is situate at 947 Linwood Avenue, Ridgewood, NJ, 07450,
USA
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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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means the
services to be provided by the Subcontractor under this Agreement
as described in Schedule 3;
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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
installedd;
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“
Subcontractor’s Representative
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means Alix
Pentecost or such other authorised representative of the
Subcontractor as shall be nominated by it in substitution for such
person;
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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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CLP hereby
appoints the Subcontractor and the Subcontractor agrees to accept
such appointment and to perform the Services on behalf of CLP 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 CLP as may be
agreed in writing between CLP and the Subcontractor.
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3.1
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Subject to
Clause 3.2 , the Subcontractor 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 between CLP and the Subcontractor 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 Subcontractor will transfer or cause to be transferred to
Ridgewood legal title to such Equipment and CLP shall procure that
Ridgewood shall make all such Equipment available to the
Subcontractor to complete Commissioning in accordance with the
terms hereof.
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4.
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SUBCONTRACTOR’S
AUTHORITY
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4.1
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The
Subcontractor shall have the authority to act on behalf of CLP as
its agent solely to the extent reasonably necessary for the
Subcontractor 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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CLP shall
indemnify and keep indemnified the Subcontractor for any loss,
damage, costs and expenses suffered or incurred by it as a result
of the Subcontractor acting or purporting to act on behalf of CLP
where the Subcontractor 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
Subcontractor shall be entitled to hold itself out as agent of CLP
for the purposes of properly carrying out the Services in relation
to each New Project and Ridgewood shall confirm the appointment of
the Subcontractor.
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4.4
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At no time
shall the Subcontractor claim ownership of or any right, title or
interest to the Equipment and the Subcontractor shall do all such
acts and enter into such documents as may be reasonably necessary
and always at the expense of CLP 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 Subcontractor 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
Subcontractor 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
Subcontractor shall devote sufficient resources to perform the
Services in accordance with the terms hereof.
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CLP undertakes
to provide the Subcontractor with all information as may be
relevant, required, requested or of assistance to the Subcontractor
in the performance of the Services.
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7.1
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Subject to the
provisions of Clause 3.2 , the fees payable to the
Subcontractor for the provision of the Services in relation to the
New Projects hereunder (exclusive of VAT) shall be calculated on a
time and materials basis.
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7.2
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Subject to
Clause 12.6 at the end of each month the
Subcontractor shall submit an invoice to CLP for the amount due in
respect of Services carried out and work undertaken pursuant to
this Agreement in the preceding month: such amount to
reflect:-
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7.2.1
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the value of
work properly executed based on the daily rates agreed between the
parties from time to time;
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7.2.2
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the cost to the
Subcontractor of providing goods, materials, equipment and other
resources necessary for the proper execution of the Services
pursuant to this Agreement;
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7.2.3
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all other costs
properly and necessarily incurred by the Subcontractor in providing
the Services pursuant to this Agreement.
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7.3
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Invoices
submitted to CLP shall be paid within 30 days of the date of the
invoice.
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