DATED
|
DATED
|
|
(1) RIDGEWOOD
ROC II 2003 LLC
(2) CLP
SERVICES LIMITED
|
|
relating
to the landfill gas power generation project at
Garlaff
Landfill Site
|
|
EVERSHEDS
LLP
|
|
000
Xxxxxxx Xxx
Xxxxxxxxxx
X0
0XX
Tel:
x00 000 000 0000
Fax:
x00 000 000 0000
|
THIS
AGREEMENT
is made
the day of
BETWEEN:-
|
(1)
|
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 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX, 00000, XXX (“the Purchaser”); and
|
|
(2)
|
CLP
SERVICES LIMITED a
company incorporated in England and Wales with company number 04502345
of
Xxxx 00-00, Xxxxxxxxxxx, Xxxxxx Technology Exchange, Xxx Xxxx, Xxxxxx
XX0
0XX (“the Contractor”).
|
WHEREAS
| (A) |
The
Purchaser has contracted with others for the installation of Power
Generation Equipment at the Site.
|
| (B) |
At
the date of this Agreement the Contractor has agreed to provide operation,
repair and maintenance services to the Purchaser pursuant to the
terms of
this Agreement in respect of the Power Generation Equipment.
|
NOW
IT IS HEREBY AGREED AS FOLLOWS:-
| 1. |
DEFINITIONS
|
The
terms
defined in this Agreement shall have the meaning specified hereunder unless
the
context otherwise requires.
|
“CLP
Developments Limited”
|
shall
mean CLP Developments Limited (company number 4502342) whose registered
office address is situate at Unit 14-15, Queensbrook, Xxxxxx Xxxxxxxxxx
Xxxx, Xxx Xxxx, Xxxxxx XX0 0XX
|
|
"the
Commencement Date"
|
|
|
“Consumables”
|
shall
mean the consumable items used in the provision of the Services,
including
lubricating oil, water treatment chemicals, air and oil filters and
spare
and replacement parts for the Equipment
|
|
“Development
Services Agreement”
|
shall
mean the agreement dated 30 September 2004 and made between the Purchaser
and CLP Developments Limited
|
|
“Downtime”
|
shall
mean all time that the Equipment is not exporting
electricity
|
|
“Existing
Electricity Sales Contract”
|
shall
mean the contracts (if any) relating to the sale and supply of electricity
from the Site under the NFFO or Scottish renewable orders regime
as
amended and/or replaced from time to time;
|
|
“the
Equipment”
|
shall
mean the Power Generation Equipment and other associated equipment
as more
particularly defined in the Development Services Agreement installed
or to
be installed and including, where applicable, the flare and flare
stack
|
|
“Group
Member”
|
shall
mean the Contractor and any holding company of the Contractor and
its/their respective subsidiaries from time to time
|
|
"Index
Linked"
|
shall
mean that the value quoted applies for any period commencing in the
year
commencing 1 April 2004 and will be increased on the 1 April each
year
thereafter in accordance with the change in the Retail Price Index
(all
items), over the same period
|
|
"Initial
Term"
|
shall
mean the period set out in clause
2
|
|
"kWh
Exported"
|
shall
mean the kilowatt hours exported as per the export meter/ meters
which are
used for the purpose of measuring the electricity generated by the
Equipment and exported to the National Grid
|
|
"Landfill
Gas"
|
shall
mean a gas mainly comprising methane, carbon dioxide, nitrogen and
oxygen
produced by the decomposition of materials in the landfill at the
site
|
|
"Power
Generation Equipment"
|
shall
mean the electrical power generation equipment supplied or to be
supplied
by others (as defined in the Development Services Agreement)
|
|
“Project”
|
shall
mean the generation of power from landfill gas at the
Site
|
|
“Project
Development and Services Agreement”
|
shall
mean the agreement dated 30 September 2004 and made between (1) the
Purchaser, (2) CLPE ROC -2 Limited (3) CLPE ROC -2A Limited and (4)
the
Project Companies (as therein defined)
|
|
"Services"
|
shall
mean the services detailed in clause
3
|
|
"the
Site"
|
shall
mean the Garlaff landfill site
|
|
"the
Site Operator"
|
shall
mean Xxxx Limited or their successor in title or
assignees
|
| 2. |
TERM
OF AGREEMENT
|
This
Agreement shall come into force on the Commencement Date and shall continue
for
15 years unless otherwise terminated under Clause
6
(the
"Initial Term").
| 3. |
SERVICES
|
The
Contractor will:
| 3.1 |
Ensure
that the allocation of Landfill Gas between any different projects
on the
Site is done in such a way as to:
|
| 3.1.1 |
first,
maximise (subject to the availability of the existing engines) the
production of electrical energy to meet the obligations under the
Existing
Electricity Sales Contract (if any) in respect thereof;
|
| 3.1.2 |
second,
to prioritise each project in the following
order:-
|
| 3.1.2.1 |
project
funded by monies provided by the Powerbank I
Fund;
|
| 3.1.2.2 |
project
funded by monies provided by the Powerbank II
Fund;
|
| 3.1.2.3 |
project
funded by monies provided by the Powerbank III Fund;
and
|
| 3.1.2.4 |
project
funded by monies provided by the Powerbank IV
Fund;
|
| 3.1.3 |
thereafter
to give priority to the different projects in accordance with the
historical sequence of
construction.
|
| 3.2 |
Pay
water charges for the supply of water to the
Equipment.
|
| 3.3 |
Pay
electricity charges as levied by the local electricity supplier for
the
supply of electricity to the Equipment or as reasonably recharged
to the
Purchaser by the Site Operator.
|
| 3.4 |
Pay
taxes, rates and other similar costs as may be levied against the
Purchaser in the ordinary course of business provided always that
the
Purchaser undertakes to forward invoices, notices or other correspondence
relating to such taxes, rates and costs to the Contractor as soon
as
reasonably practicable.
|
| 3.5 |
Monitor
the Equipment regularly and liaise with the Purchaser with the objective
of maximising the availability and output of the Equipment.
|
| 3.6 |
Be
available for the call out on a 24 hour basis for emergencies, breakdown
and security. The Contractor's staff shall be available to attend
at the
Site within 2 hours from notification of such
events.
|
| 3.7 |
Perform
daily, weekly and monthly checks of the operations of the Equipment
in
accordance with manufacturer’s recommendations and good maintenance
practice and supply to the Purchaser on a monthly basis a schedule
of the
checks that have been carried out.
|
| 3.8 |
Maintain
and keep up to date a maintenance record or log book for the Equipment.
|
| 3.9 |
Provide
the Purchaser with a weekly operating record of hours run, electricity
exported and stoppages in a form to be agreed by the Purchaser and
to meet
with the Purchaser on a regular basis to discuss operations, such
meetings
to take place at the Contractor’s offices in Bolton, the Site or such
other location as the parties may
agree.
|
| 3.10 |
Take
oil samples, analyse and examine analyses in accordance with the
manufacturer's recommendations and procedures and supply such information
to the Purchaser.
|
| 3.11 |
Change
lubricating oil at intervals as is consistent with prudent operating
practice or on such criteria as agreed with the engine and lubricant
suppliers (if so agreed).
|
| 3.12 |
Maintain
adequate levels of water treatment chemicals in the cooling system
of the
Power Generation Equipment.
|
| 3.13 |
Be
wholly responsible for and shall indemnify and hold the Purchaser
harmless
against any and all claims, liabilities, costs, damages and expenses
of
every kind and nature with respect
to:
|
| 3.13.1 |
the
injury or death of any of the Contractor's personnel (including the
personnel
of
the subcontractor of the Contractor) except to the extent such injury
or
death is caused by the negligence of the Purchaser or a fault or
defect in
the Equipment;
|
| 3.13.2 |
the
sickness, injury or death of any third party and the damage to or
destruction of any property of any third party arising directly or
indirectly during or as a result of any act or omission or default
of the
Contractor in carrying out the services under this Agreement and
the
Contractor agrees to take out the necessary insurance with a limit
of
indemnity of £5,000,000 to comply with his obligation under this
clause
3.13;
and
|
| 3.13.3 |
the
use of the Site by the Contractor.
|
| 3.14 |
Produce
a statement at three monthly intervals giving its assessment of the
condition of the Equipment supported by details of maintenance work
which
has been completed.
|
| 3.15 |
Use
the Site for the purposes of the Project and not for any unrelated
business activity.
|
| 3.16 |
Arrange
for adequate stocks of consumables including air and oil filters
and spark
plugs to be held on Site.
|
| 3.17 |
Provide
supplies of lubricating oil in order to replenish and change the
engine
lubricating oil at intervals on such criteria as agreed with the
engine
and lubricant suppliers.
|
| 3.18 |
Provide
adequate supplies of water treatment chemicals in order to maintain
the
cooling system of the Power Generation
Equipment.
|
| 3.19 |
Meet
all costs and any associated costs (other than capital costs) involved
in
providing the Services including lubricating oil and water treatment
chemicals provided that if the price of lubricating oil or water
treatment
chemicals increases at a rate greater than the fee increase mechanism
stipulated in clause
5.4
of
this Agreement then the Purchaser shall pay the Contractor the difference
between the price paid by the Contractor for lubricating oil and
water
treatment chemicals and the price for such items defined under the
fee
increase mechanism in clause
5.4
of
this Agreement.
|
| 3.20 |
At
the commencement of each calendar year provide the Purchaser and
any other
party as the Purchaser reasonably directs with a programme for that
year
giving the anticipated maintenance programme and Downtime periods
for all
elements of the Equipment.
|
| 3.21 |
Operate,
maintain and repair the Equipment.
|
| 3.22 |
Employ
persons of adequate skill and experience to operate the
Equipment.
|
| 3.23 |
Follow
all health and safety legislation and the codes of practice and guidelines
issued by the Health and Safety
Executive.
|
| 3.24 |
Keep
the Equipment clean and of good appearance at all
times.
|
| 3.25 |
Liaise
with the Site Operator as necessary and comply with all relevant
Site
instructions, traffic movements and other Site management matters.
|
| 3.26 |
Subject
and without prejudice to clause
3.1
the Contractor will use reasonable efforts to
ensure
that when the Equipment operates it exports the maximum possible
kilowatt
hours of electricity, within the limitations of the rated capacity
of the
Equipment and the gas available.
|
| 3.27 |
Co-operate
with the Purchaser and liaise with the engine, gas pump and other
equipment suppliers to ensure that the maintenance and servicing
of the
Equipment is carried out either in accordance with such suppliers
recommendations and procedures or in accordance with the reasonable
judgement of the Contractor pursuant to Clause
3.32.
|
| 3.28 |
Supply
and fit spare and replacement parts to the Equipment in accordance
with
the reasonable judgement of the Contractor acting in accordance with
Clause
3.32
provided that it is accepted that the Contractor is not responsible
for
meeting the costs of relocating the Equipment or supplying and installing
additional Equipment or any similar works or services and that the
costs
of such relocation and installation will be born wholly by the
Purchaser.
|
| 3.29 |
Subject
to the provisions of clause
3.28
meet all costs (other than capital costs) involved in providing the
Services as described herein.
|
| 3.30 |
Subject
to the provisions of clause
5
pay for spare and replacement parts, repair and maintenance costs
provided
by any third party supplier it being accepted that any parts or costs
associated with Equipment relocation or extension as described in
clause
3.28
above are the responsibility of the
Purchaser.
|
| 3.31 |
Co-operate
with all reasonable requests of any independent expert that may be
engaged
by the Purchaser to oversee and report on the state of the Equipment
and
the manner in which it is being operated and to act upon the reasonable
instructions of such independent
expert.
|
| 3.32 |
In
all cases the Contractor shall carry out its obligations to the standards
of a reasonable and prudent operator, meaning standards, practices,
methods and procedures conforming to law and that degree of skill,
diligence, prudence and foresight which would reasonably and ordinarily
be
expected from a skilled and experienced operator and, where appropriate,
within manufacturer’s recommendations and
procedures.
|
| 3.33 |
Insure
the Equipment for its replacement value against fire and all perils
and
take out catastrophic breakdown cover with a reputable Insurance
Company
and pay all premiums and excesses on claims save in respect of any
claims
arising due to the Contractor’s
negligence.
|
| 4. |
PURCHASER’S
OBLIGATIONS
|
The
Purchaser shall :
| 4.1 |
Pay
for the Services pursuant to the terms set out in clause
5.
|
| 4.2 |
Pay
for such costs reasonably incurred by the Contractor as a consequence
of
termination by Force Majeure as set in Clause
7.
|
| 5. |
PAYMENT
|
| 5.1 |
Subject
to Clause
5.4 the
Services are to be invoiced at the rate of 1.50 xxxxx per
kwh Exported with effect from the Commencement Date.
|
| 5.2 |
The
charges arising from the Services shall be payable monthly and shall
be
invoiced by the Contractor at the end of each month and settled within
30
days by the Purchaser.
|
| 5.3 |
Value
Added Tax will be added to the above amounts at the rate prevailing
at the
time.
|
| 5.4 |
The
fees as set out in Clause
5.1
will be increased on 1 April each year by the amount that the Retail
Price
Index (all items) has increased (if at all) over the previous year.
|
| 6. |
TERMINATION
OF THE AGREEMENT
|
| 6.1 |
Any
party shall have the right at any time to terminate this Agreement
in any
of the following events:-
|
| 6.1.1 |
If
any other party commits a material breach of any of the terms of,
or
conditions of this Agreement, which may or may not be capable of
remedy
and fails to rectify such breach within one hundred and twenty (120)
days
after written notice of such breach has been
given.
|
| 6.1.2 |
If
any other party commits a material breach of any of the provisions
of this
Agreement which is not capable of
rectification.
|
| 6.1.3 |
If
any other party has an administrator or an administrative receiver
or
receiver appointed by its creditors or goes into liquidation other
than
voluntary liquidation for the purposes of reconstruction or amalgamation.
|
| 6.2 |
Either
the Contractor or the Purchaser may terminate this Agreement immediately
if the Project has suffered a material adverse change in its business,
financial condition or prospects which, in the reasonable determination
of
the terminating party, makes the continued operation of the Project
uneconomic.
|
| 6.3 |
Subject
to Clause
11.2,
the Purchaser shall be entitled to terminate this Agreement on notice
if
the Site is substituted out of the Project Development and Services
Agreement by the Purchaser.
|
| 6.4 |
On
termination of the Agreement the Purchaser shall have the right but
not
the obligation to purchase from the Contractor all items of Consumables
held by the Contractor in respect of the Project as at the date of
termination, by giving written notice to the Contractor on or before
termination to that effect. The price for such unused consumables
shall be
the cost price of the same to the Contractor plus VAT. The cost of
delivery (insofar as the items are not held at the Project Site)
to the
place nominated by the Purchaser shall be for the Purchaser’s
account.
|
| 6.5 |
Termination
of this Agreement as between the parties will be without prejudice
to the
accrued rights of such parties at the time of such
termination.
|
| 7. |
FORCE
MAJEURE
|
Notwithstanding
any other provision in this Agreement no default delay or failure to perform
on
the part of any party shall be considered a breach of this Agreement if such
default delay or failure to perform is shown to be due entirely to cause beyond
the direct control of the party charged with such default, including, but not
limited to such events as riots, civil embargoes, storms, floods, fire,
earthquakes, acts of God or the public enemy, an act of terrorism, national
emergency or nuclear disasters, strike, lockout, labour unrest (affecting the
performance of this agreement) provided that where such incident extends to
employees of the Contractor it is part of a national, industry - wide action.
In
the case of the occurrence of such event the time for performance required
by
either party under this Agreement shall be extended for any period during which
performance is prevented by such event. However, any other party may terminate
this Agreement by notice if such event preventing performance continues for
more
than 60 continuous days.
| 8. |
UNDERTAKINGS
|
| 8.1 |
The
Purchaser agrees that monies received in respect of insurance policies
shall be applied in accordance with this Operations, Repair and
Maintenance Agreement.
|
| 8.2 |
The
Contractor agrees not to make changes to the Equipment having a cost
greater than £15,000 that is not provided for in the approved budget
without the prior written approval of the
Purchaser.
|
| 9. |
LIMITATION
OF LIABILITY
|
| 9.1 |
The
Contractor will use reasonable endeavours to deliver the Services
hereunder within the time agreed and to the standard agreed and,
if no
time or standard is agreed, then within a reasonable time and to
a
reasonable standard. If despite those endeavours the Contractor is
unable
for any reason, other than the Contractor’s wilful default, to deliver
such Services the Contractor will be deemed not to have breached
this
Agreement.
|
| 9.2 |
It
is agreed that the Contractor will have no liability to the Purchaser
for
direct, indirect or consequential loss (all three of which terms
includes,
without limitation, pure economic loss, loss of profits, loss of
business,
depletion of goodwill and like loss) howsoever caused save that the
Contractor does not exclude its liability (if any) to the Purchaser
for
any direct loss arising from the Contractor’s wilful default (but, for the
avoidance of doubt, the Contractor does exclude liability for any
indirect
or consequential loss that may arise from such wilful default) and
for
personal injury or death resulting from the Contractor’s negligence, fraud
or for any matter which it would be illegal for the Contractor to
exclude
or to attempt to exclude its
liability.
|
| 9.3 |
For
the avoidance of doubt the Purchaser agrees that its only remedy
under
this Agreement (save in the case of the Contractor’s wilful default) shall
be the right of termination (if any) under Clause
6.
|
| 10. |
GENERAL
|
| 10.1 |
Nothing
in this Agreement shall constitute or be deemed to constitute a
partnership between the parties hereto or constitute or be deemed
to
constitute the Purchaser as agents of the Contractor for any purpose
whatever.
|
| 10.2 |
The
Agreement shall remain in full force and effect even after the expiry
of
the term referred to in Clause
2
in
respect of any matters, conditions, covenants or obligations which
shall
not have been done, observed or performed by the Contractor or the
Purchaser prior thereto.
|
| 11. |
ASSIGNMENT
|
| 11.1 |
Either
party hereto may assign or transfer the whole or any part of its
rights,
powers and benefits hereunder to any party but shall not be entitled
to
assign or transfer its duties and obligations hereunder to any party
except with the written consent of the other party which shall not
be
unreasonably withheld or delayed.
|
| 11.2 |
The
Contractor hereby expressly acknowledges the Purchaser’s right to
substitute the identity of the Site hereunder if the Site is substituted
out of the Project Development and Services Agreement by the Purchaser
by
means of terminating this Agreement and entering into a new agreement
on
commercial terms identical (mutatis mutandis) to this Agreement in
respect
of the Site that has acceded to the Project Development and Services
Agreement provided always that the Purchaser shall furnish the Contractor
with a copy of the relevant deed of release, adherence and accession
that
permits the new Site to accede to the Project Development and Services
Agreement.
|
| 12. |
WAIVER
|
No
waiver
of any rights arising under this Agreement shall be effective unless in writing
and signed by the party against whom the waiver is to be enforced. No failure
or
delay by either party in exercising any right power or remedy under this
Agreement except as specially provided in this clause shall operate as a waiver
of any right power or remedy. This clause shall not apply where time is
expressed to be the essence.
| 13. |
LEGAL
COSTS
|
In
the
event of arbitration, litigation or other legal proceedings between the parties
arising from this Agreement the prevailing party shall be entitled to recover
in
addition to any other relief awarded or granted its costs and legal fees on
a
solicitor and own client basis.
| 14. |
INTEREST
|
Any
party
not making payment on the due date of any monies properly due under this
Agreement shall be liable to pay interest at an annual rate of 2% above the
Base
Rate of Barclays Bank PLC prevailing from time to time on the amount not
paid.
| 15. |
NOTICES
|
| 15.1 |
Any
notice or other communication requiring to be given or served under
or in
connection with this Agreement shall be in writing and shall be
sufficiently given or served if
delivered:-
|
|
(a)
|
in
the case of the Purchaser to:
|
000
Xxxxxxx Xxxxxx
Xxx
Xxxxxx
XXX
00000
Fax: 000-000-000-0000
Attention: Xxxxx
Xxxxxxx
Email:
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
(b)
|
in
the case of the Contractor to:
|
Xxxx
00-00 Xxxxxxxxxxx Technology Exchange
Xxx
Xxxx
Xxxxxx
XX0
0XX
Fax: 00000
000
000
Attention: Xxxxxxx
Xxxxxxxxx
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
or
to
such alternative address, fax number, email address or person as any party
may
nominate by notice to the others given in accordance with this Clause
15.
| 15.2 |
Any
notice shall be delivered by hand or sent by legible facsimile
transmission or pre-paid first class post (airmail if sent to or
from an
address outside the United Kingdom) and if delivered by hand or sent
by
legible facsimile or email transmission shall conclusively be deemed
to
have been given or served at the time of despatch and if sent by
post
aforesaid shall conclusively be deemed to have been received 48 hours
from
the time of posting (or 72 hours if sent to or from an address outside
the
United Kingdom).
|
| 16. |
SEVERABILITY
|
If
any
terms of this Agreement shall be held to be invalid illegal or unenforceable
the
remaining terms and provision of this Agreement shall remain in full force
and
effect and such invalid illegal or unenforceable term or provision shall be
deemed not to be part of this Agreement.
| 17. |
HEADINGS
|
Headings
used in this Agreement are for reference purposes only and shall not be deemed
part of this Agreement.
| 18. |
DISPUTES
AND PROPER LAW
|
| 18.1 |
Except
as otherwise provided in this Agreement if a dispute of any kind
whatsoever arises between any of the parties hereto in connection
with or
arising out of this Agreement it shall be settled in accordance with
the
following provisions.
|
| 18.2 |
For
the purpose of this Agreement a dispute shall be deemed to arise
when one
party serves on the other a notice in writing (hereinafter called
the
Notice of Dispute) stating the nature of the dispute and requiring
the
dispute to be considered by an adjudicator who, if not agreed upon
between
parties, shall be appointed by the Chairman of the Chartered Institute
of
Arbitrators in England. The dispute shall thereafter be referred
and
considered by such adjudicator in accordance with the procedure under
the
TeCSA Adjudication Rules 2002, version 2.0 or any amendment or
modification thereof being in force at the date of such notice. The
recommendation of the adjudicator shall be deemed to have been accepted
in
settlement of the dispute unless written notice to refer under
sub-clause 18.3
is
served within one calendar month of the receipt of the adjudicators
recommendation.
|
| 18.3 |
Where
the Purchaser or the Contractor is dissatisfied with any recommendation
of
an adjudicator appointed under sub-clause 18.2
then either the Purchaser or the Contractor may within one calendar
month
of receipt of the adjudicator's recommendation refer the dispute
to the
jurisdiction of the court.
|
| 18.4 |
This
Agreement shall be deemed to have been made in England and the
construction validity and performance of this Agreement shall be
governed
in all respects by English law. Subject to Sub-clauses
18.1
to 18.3,
the parties agree to submit to the exclusive jurisdiction of the
English
court.
|
| 19. |
COUNTERPARTS
|
This
agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
| 20. |
THIRD
PARTIES
|
| 20.1 |
The
parties to this Agreement do not intend that any of its terms will
be
enforceable by virtue of the Contracts (Rights of Third Parties)
Xxx 0000
by any person not a party to it.
|
IN
WITNESS thereof the parties hereto have executed this Agreement as a Deed under
hand
EXECUTED
and
DELIVERED
AS A DEED
by
RIDGEWOOD
ROC II 2003 LLC
acting
by
(Authorised
Signatory)
In
the
presence of:
EXECUTED
and
DELIVERED
AS A DEED
by
CLP
SERVICES LIMITED
acting
by
(Authorised
Signatory)
In
the
presence of:
