DEVELOPMENT SERVICES AGREEMENT
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.
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 institutions providing funds for the benefit of the Owner for the design
or installation of the Facilities;
1.2.3.6. the
submission of any suggestions or requests for changes that could in any
reasonable manner improve the design, efficiency or cost of the
Facilities;
1.2.3.7. applying
for and maintaining in full force and effect any and all governmental permits
and approvals required for the lawful construction of the
Facilities;
1.2.3.8. compliance
with all terms and conditions applicable to the Owner or the Facilities
contained in any governmental permit or approval required or obtained for the
lawful installation of the Facilities, or in any insurance policy affecting or
covering the Facilities during its construction and installation, or in any
surety bond obtained in connection with the Facilities;
1.2.3.9. furnishing
such consultation and advice relating to the construction and installation of
the Facilities as may be reasonably requested from time to time by the Managing
Member;
1.2.3.10. keeping
the Managing Member fully informed on a regular basis of the progress of the
design, construction and installation of the Facilities, including the
preparation of such reports as are provided for herein or as may reasonably be
requested by the Managing Member;
1.2.3.11. giving
or making the Managing Member’s instructions, requirements, approvals and
payments provided for in the agreements with the Installer and other
contractors, professionals and consultants retained for the Facilities;
and
1.2.4 inspect
the progress of the course of installation of the Facilities, including
verification of the materials and labor being furnished to and on such
installation so as to be fully competent to approve or disapprove requests for
payment made by the Installer, or by any other parties with respect to the
design and installation of the Facilities, and in addition to verify that the
same is being carried out substantially in accordance with the plans and
specifications approved by the Managing Member or, if the same is not being so
carried out, promptly to so notify the Managing Member;
1.2.5 if
requested to do so by the Managing Member, perform on behalf of the Owner all
obligations of the Company and/or the Owner with respect to the design and
installation of the Facilities contained in any loan agreement, equity financing
agreement or security agreement entered into in connection with any
financing for the construction and installation of the Facilities, or in any
agreement entered into with the Utility or any governmental body or agency
relating to the terms and conditions of such installation, provided that copies
of such agreements have been provided by the Managing Member to Hoku or the
Managing Member has otherwise notified Hoku in writing such
obligations;
1.2.6 assemble
and retain all contracts, agreements and other records and data as may be
necessary to carry out Hoku’s functions hereunder;
1.2.7 use
its best efforts to accomplish the timely completion of the Facilities in
accordance with the approved plans and specifications and the time schedules for
such completion approved by the Managing Member;
1.2.8 at
the direction of the Managing Member, implement any decisions of the Managing
Member made in connection with the design, development and installation of the
Facilities or any policies and procedures relating thereto; and
1.2.9 perform
and administer any and all other services and responsibilities of Hoku that are
set forth in any other provisions of this Agreement, or that are requested to be
performed by the Managing Member and are within the general scope of the
services described herein.
Section
2.1. Obligation To Complete
Installation. Hoku shall (a) complete the installation of the
Facilities or cause the same to be completed in a good and workmanlike manner,
free and clear of all mechanics’, materialmen’s or similar liens, all in
accordance with the drawings and specifications and (b) cause the Owner to
satisfy any other requirements necessary for the Facilities to be
commissioned.
Section
3.1 Compensation. As
consideration for Hoku’s services to be performed under this Agreement, Owner
will pay an amount equal to [*]. The Development Fee shall be payable
as follows: [*] from the proceeds of the Managing Member’s and Investor Member’s
Capital Contributions, as set forth in the Operating Agreement, and the balance
of [*] shall be a deferred payment obligation of the Company (the “Deferred Development Fee”),
which Deferred Development Fee shall not bear interest. The
Development Fee shall be paid in full by the Company no later than the date
which is ten (10) years following the date upon which the last solar system has
been Placed In Service.
Section
4.1 General.
(a) No Agency
Relationship. This Agreement does not create an agency
relationship between the parties and does not establish a joint venture or
partnership between the parties. Neither party has the authority to
bind the other party or represent to any person that the party is an agent of
the other party.
(b) Binding
Effect. This Agreement will be binding on the parties and
their respective heirs, personal representatives, successors and permitted
assigns, and will inure to their benefit. The parties do not intend
to confer any right or remedy on any third party.
(c) Amendment;
Waiver. This Agreement may be amended only by a written
agreement signed by each party. No waiver will be binding on a party
unless it is in writing and signed by the party making the waiver. A
party’s waiver of a breach of a provision of this Agreement will not be a waiver
of any other provision or a waiver of a subsequent breach of the same
provision.
(d) Severability. If a
provision of this Agreement is determined to be unenforceable in any respect,
the enforceability of the provision in any other respect and of the remaining
provisions of this Agreement will not be impaired.
(e) Remedies. The
parties will have all remedies available to them at law or in
equity. All available remedies are cumulative and may be exercised
singularly or concurrently. All remedies are subject to the terms of
this Agreement.
(f) Governing Law;
Venue. This Agreement is governed by the laws of the State of
California, without giving effect to any conflict-of-law principle that would
result in the laws of any other jurisdiction governing this
Agreement. .
(g) Entire
Agreement. This Agreement contains the entire understanding of
the parties regarding the subject matter of this Agreement and supersedes all
prior and contemporaneous negotiations and agreements, whether written or oral,
between the parties with respect to the subject matter of this
Agreement.
(h) Signatures. This
Agreement may be signed in counterparts. A fax transmission of a
signature page will be considered an original signature page. At the
request of a party, a party will confirm a fax-transmitted signature page by
delivering an original signature page to the requesting party.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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DEVELOPER
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COMPANY
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HOKU
SOLAR, INC.
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HOKU
SOLAR POWER I, LLC
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By:
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/s/
Xxxxx Xxxx
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By: Hoku Solar Inc., its Managing Member | ||
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Name:
Xxxxx Xxxx
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Title:
Chief Operating Officer
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By:
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/s/
Xxxxx Xxxx
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Name:
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Xxxxx
Xxxx
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Title:
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Chief
Operating
Officer
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