MINUTE OF AGREEMENT

between

SCOTTISHPOWER RENEWABLES (UK) LIMITED

and

THE GLEN APP WINDFARM COMMUNITIES

 

 

 

GLEN APP WINDFARM

2 CONTENTS

1. DEFINITIONS AND INTERPRETATION
2. CONDITIONALITY AND DURATION
3. SPR OBLIGATIONS
4. THE GLEN APP WINDFARM COMMUNITIES OBLIGATIONS
5. ANTI-BRIBERY
6. THE GLEN APP WINDFARM COMMUNITIES REPORTING OBLIGATIONS
7. PUBLICITY
8. TERMINATION
9. NO WAIVER
10. NO ASSIGNATION
11. NO PARTNERSHIP OR AGENCY
12. NEW OPERATOR
13. RELEASE AND DISCHARGE
14. DISPUTE RESOLUTION
15. NOTICES
16. VAT
17. LAW OF SCOTLAND
18. ENTIRE AGREEMENT
19. NO RELIANCE

 

 

MINUTE OF AGREEMENT

 

between

 

SCOTTISHPOWER RENEWABLES (UK) LIMITED, a company incorporated under the Companies Acts with registered number NI028425 and having its registered office at The Soloist, 1 Lanyon Place, Belfast BT1 3LP (“SPR”)

and

THE GLEN APP WINDFARM COMMUNITIES, Ballantrae Community Council is noted as an established community council within South Ayrshire and both, Cairnryan Community Council and Kirkcolm Community Council is noted as an established community councill within Dumfries & Galloway (“The Glen App Windfarm Communities”).

CONSIDERING:-

(One) That SPR has been granted the Consent by South Ayrshire Council for the Windfarm;

(Two) That SPR as developer of the Windfarm voluntarily enters into this Agreement to make provision for payment of Community Benefit Sums to ensure that the local community shares in the benefits of the Windfarm;

(Three) That The Glen App Windfarm Communities are the locally elected community organisations that are in place to administer community benefit funds on behalf of their local communities;

(Four) That The Glen App Windfarm Communities have all necessary powers and approvals to enter into this Agreement, to receive and administer the Community Benefit Sums and to use the Community Benefit Sums for the purposes set out in this Agreement;

(Five) That by entering into this Agreement The Glen App Windfarm Communities are not providing goods to or undertaking any form of service to SPR; and

(Six) That SPR and The Glen App Windfarm Communities wish to set out the terms and conditions upon which SPR will pay to The Glen App Windfarm Communities the Community Benefit Sums.

NOW THEREFORE the Parties have agreed and do hereby agree as follows:-

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement (including the foregoing preamble) the following expressions shall have the meanings ascribed to them:

“1997 Act”

means the Town and Country Planning (Scotland) Act 1997;

“Actual Date of Commencement of Decommissioning”

means the date on which the First Decommissioning Works commence;

“Agreement” means this agreement between SPR and theThe Glen App Windfarm Communities;

“Annual Report”  means an annual written report providing the information and in the format specified in the Schedule or providing such other information or in such other format as SPR may specify to The Glen App Windfarm Communities from time to time;

“Annual Report Due Date”

means 31 March each year from 2018 until the later of: (i) the year following the Date of Commencement of Decommissioning of the Windfarm; or (ii) the year following the final Contribution being spent;

“Balancing Community Benefit Contribution”

means the sum calculated in accordance with the formula (a/b) X c, where: a equals the number of days from the day after the  Estimated Date of Commencement of Decommissioning to (and including) the Actual Date of

5 Commencement of Decommissioning; b equals 365; and c equals FIVE THOUSAND POUNDS (£5,000) STERLING Indexed per mega watt of Installed Capacity as at the Due Date on which the Estimated Final Community Benefit Contribution was paid;

“Community Area” means the communities represented by Ballantrae Community Council, Cairnryan Community Council and Kirkcolm Community Council, and any other surrounding community area they deem to be of significance;

“Community Benefit Contribution”

means the sum of FIVE THOUSAND POUNDS (£5,000) STERLING Indexed per mega watt of Installed Capacity as at the relevant Due Date; to be distributed as follows: 50% to Ballantrae Community Council, 25% to Cairnryan Community Council, and 25% to Kirkcolm Community Council;

“Community Benefit Sums”

means any and all sums paid by SPR in terms of clause 3 of this Agreement;

“Community Benefits” means for the purposes of community facilities, skills and employment, community or local events, sport and recreation, environmental improvements, youth and education, and/or heritage, or such other purpose as has first been approved in writing by SPR;

“Consent” means the planning permission (given reference number 12/01156/APPM) granted by the Planning Authority on 3 June 2015 for ‘Proposed Wind Farm A77T Main Street Ballantrae – Council Boundary South Of Ballantrae South Ayrshire’;

“Date of Final Commissioning”

means the date on which all the wind turbine generators forming part of the Windfarm have completed their reliability testing and are supplying electricity on a commercial basis;

“Due Date” means within sixty (60) days of the 20 March in each calendar year. The first payment will be made upon final signing of this legal agreement and provision of bank details, thereafter annual payments will be made within sixty (60) days of 20 March;

“Estimated Date of Commencement of Decommissioning”

means the date on which SPR estimates that the First Decommissioning Works will commence;

“Estimated Final Community Benefit Contribution”

means the sum calculated in accordance with the formula (a/b) X c, where: a equals the number of days from and including the last Due Date preceding the Estimated Date of Commencement of Decommissioning to and including the Estimated Date of Commencement of Decommissioning; b equals 365; and c equals FIVE THOUSAND POUNDS (£5,000) STERLING Indexed per mega watt of Installed Capacity as at the relevant Due Date,

“First Community Benefit Contribution”

means the sum calculated in accordance with the formula (a/b) X c, where: a equals the number of days from and including the Date of Final Commissioning to the day before the first Due Date following the Date of Final Commissioning; b equals 365; and c equals FIVE THOUSAND POUNDS (£5,000) STERLING Indexed per mega watt of Installed Capacity as at the Date of Final Commissioning;

“First Decommissioning Works”

means the first works to physically dismantle and remove any wind turbine generator forming part of the Wind Farm as part of the process of permanently decommissioning, dismantling and removing the Wind Farm;

Comment [SMcL1]: Detail moved to Clause 3.1

“Index” means the General Index of Retail Prices (All Items) exclusive of mortgage interest published by or on behalf of HM Government, or if that index ceases to be published or the basis upon which such index is calculated is substantially changed or rebased, such substitute or alternative index as is most likely to achieve an equivalent result as may be agreed between the parties;

“Indexed” means the relevant sum increased in accordance with the formula (b/a) X c, where: a equals the Index published as at the last date of execution of this Agreement; b equals the Index for the latest month for which the Index has been published at the relevant payment date or the date of expiry of the relevant period; and c equals the relevant sum to be indexed.

“Installed Capacity” means the aggregate capacity of the wind turbine generators in mega watts (MW) installed at the Windfarm site as permitted in terms of the Consent and as at the Date of Final Commissioning or the relevant Due Date as the case may be, and for the avoidance of doubt Installed Capacity shall not include any wind turbine generator that has been permanently removed from the Windfarm site or has been continuously non-operational for 6 months (or longer) immediately preceding the Date of Final Commissioning or the relevant Due Date as the case may be;

“Parties” means SPR and Ballantrae Community Council, Cairnryan Community Council and Kirkcolm Community Council, each being a “Party”;

“Planning Authority” means South Ayrshire Council being the local planning authority for the area in which the Windfarm is to be constructed;

“Schedule” means the schedule annexed and executed as relative to this Agreement;

“VAT” means Value Added Tax or any equivalent or replacement tax at the rate prevailing from time to time; and

“Windfarm” means the windfarm to be constructed pursuant to the Consent.

1.2 In the interpretation of this Agreement, save to the extent that the context or the express provisions of this Agreement require otherwise:

1.2.1 words importing the singular shall include the plural and vice versa;    1.2.2 words importing any gender shall include all other genders;

1.2.3 any reference to a preamble or clause is to the relevant preamble or clause of this Agreement;

1.2.4 the clause headings do not form part of this Agreement and shall not be used in interpreting its terms; and    1.2.5 any reference to a statute or statutory provision (including any subordinate legislation) includes any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same.

2. CONDITIONALITY AND DURATION

2.1 This Agreement shall take effect from the last date of signing of this Agreement.

2.2 This Agreement shall terminate and cease to have effect and shall be deemed to be discharged on the earliest of:     2.2.1 the date of termination of this Agreement in accordance with clause 810;

2.2.2 the date on which SPR enters into an agreement with another party in terms

9  of clause 1012,

2.2.3 the date SPR ceases to operate the Windfarm in accordance with clause 1214;  and

2.2.4 the date falling three (3) months after the Actual Date of Commencement of  Decommissioning,

and on that date, and save in respect of any antecedent breach of SPR’s obligations contained in this Agreement, SPR’s obligations under this Agreement shall cease and have no effect.

2.3 If any provision of this Agreement is held to be invalid or illegal or unenforceable then this Agreement shall be deemed pro non scripto.

3. SPR OBLIGATIONS

3.1 Within sixty (60) days of the Date of Final Commissioning SPR shall (subject to receiving all required payment information (e.g. bank details) from The Glen App Windfarm Communities) pay to The Glen App Windfarm Communities the First Community Benefit Contribution.

3.2 Subject to clause 3.3, on each Due Date falling after the Date of Final

Commissioning SPR shall pay to The Glen App Windfarm Communities the Community Benefit Contribution.

3.3 If a Due Date falls within the calendar year ending on the Estimated Date of Commencement of Decommissioning clause 3.2 shall cease to apply and no Community Benefit Contribution shall be paid on that Due Date. On that Due Date SPR shall instead pay to The Glen App Windfarm Communities the Estimated Final Community Benefit Contribution. If the Actual Date of Commencement of Decommissioning is after the Estimated Date of Commencement of Decommissioning SPR shall pay to The Glen App Windfarm Communities the Balancing Community Benefit Contribution and that within sixty (60) days of the Actual Date of Commencement of Decommissioning. If the Actual Date of Commencement of Decommissioning is before the Estimated Date of Commencement of Decommissioning SPR shall not seek to recover from The Glen App Windfarm Communities any sum paid in respect of the period between the Actual Date of Commencement of Decommissioning and the Estimated Date of Commencement of Decommissioning.

3.4 Following payment of the Estimated Final Community Benefit Contribution and, if applicable, the Balancing Community Benefit Contribution SPR shall have no

obligation to pay to The Glen App Windfarm Communities any further Community Benefit Sum.

4. THE GLEN APP WINDFARM COMMUNITIES OBLIGATIONS

4.1  Each of The Glen App Windfarm Communities shall:

4.1.1 provide to SPR details of a separate business bank account with a UK clearing bank in the name of   the relevant Glen App Windfarm Community into which  the relevant Community Benefit Sums are to be paid and held;

4.1.2 on receipt of any Community Benefit Sum promptly notify SPR of safe receipt of the same;

4.1.3 promptly repay to SPR any sum which is incorrectly paid by SPR to The Glen App Windfarm Communities whether as a result of an administrative error or otherwise;

4.1.4 use Community Benefit Sums only for Community Benefits within the Community Area and for no other purpose whatsoever, and for the avoidance of doubt and without prejudice to the generality of the foregoing The Glen App Windfarm Communities shall not use any Community Benefit Sum for any of the following purposes:

(a) political, religious, entertainment or hospitality purposes;

(b) to acquire, invest in, or otherwise fund any legal entity, enterprise or project where the purpose for which such funds are to be applied would not, in the reasonable opinion of the relevant Glen App Windfarm Community, demonstrate a significant benefit to the local community;

(c) to fund any individual or legal person where the purpose for which such funds are then used is at the discretion of that individual or legal person;

(d) any purpose that is adverse to SPR’s interest in the Windfarm or adverse to the business interests of SPR or its parent company or group companies or adverse to the renewable energy industry or the electricity industry;

(e) to acquire or assist in acquiring any interest in the Windfarm or any part of the Windfarm site or any interest in any other commercial developer’s windfarm or any part of any other commercial developer’s windfarm site, but not excluding any future opportunity to invest in an SPR windfarm where appropriate; or

(f) to finance or replace a service that is provided by or is the legal responsibility of the local authority or other public authority or in substitution of existing statutory funding;     but notwithstanding the foregoing The Glen App Windfarm Communities may apply a reasonable proportion of the Community Benefit Sums towards meeting the reasonable administrative costs of administering and distributing the Community Benefit Sums;

4.1.5 in the course of the calendar year commencing on the date of receipt of any Community Benefit Sum distribute a minimum of 70 percent of that Community Benefit Sum unless some other percentage is first approved in writing by SPR;

4.1.6 comply with all applicable laws, regulations, codes and guidance relating to the holding, administration and expenditure of the Community Benefit Sums, including but not limited to those relating to financial management, auditing, reporting and publication and put in place and maintain policies and procedures adequate to comply with such legislation, regulations, codes and guidance;

4.1.7 put in place and maintain policies and procedures adequate to identify and prevent fraud or other criminal activity or administrative failure in relation to the holding, administration and expenditure of the Community Benefit Sums;

4.1.8 keep separate, accurate and up-to-date accounts of the receipt and expenditure of Community Benefit Sums and keep all invoices, receipts and accounts and any other relevant documents relating to expenditure of a Community Benefit Sum for a period of at least six years following receipt of the Community Benefit Sum to which they relate;

4.1.9 put in place and maintain policies and procedures adequate to monitor use of Community Benefit Sums when distributed to a third party and to require that any such sum not used for Community Benefit is repaid to the relevant Glen App Windfarm Community; and

4.1.10 promptly notify SPR in writing of any change to The Glen App Windfarm Communities’ constitutional documents and furnish SPR with a copy of the amended constitutional document.

5. ANTI-BRIBERY

5.1 Each party shall:

5.1.1 Comply with all applicable laws, regulations, codes and guidance relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010 (“the Relevant Requirements”); and

5.1.2 Put in place and maintain throughout the term of this Agreement, and enforce where appropriate, policies and procedures to comply with the Relevant Requirements, including but not limited to adequate procedures  under the Bribery Act 2010, and for the purpose of this Clause 5.1, the meaning of adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act).

6. THE GLEN APP WINDFARM COMMUNITIES REPORTING OBLIGATIONS

6.1 Each of The Glen App Windfarm Communities shall submit each Annual Report on each Annual Report Due Date.

6.2 Each Annual Report shall be submitted:

6.2.1  in hard copy to the Company Secretary of SPR at the address specified in  clause 1517.2; and

6.2.2 by electronic mail to communitybenefit@scottishpower.com.

6.3 Notwithstanding the terms of clause 6.1 The Glen App Windfarm Communities shall comply with all requests from SPR to provide such further information, explanations and documents as SPR may require to establish that the Community Benefit Sums have been properly held, administered and expended in accordance with this Agreement.

6.4 Each of The Glen App Windfarm Communities shall acknowledge the Community Benefit Sums in its annual report and accounts, including an acknowledgement of SPR as the source of the Community Benefit Sums.

6.5 SPR shall have the right to review The Glen App Windfarm Communities’ accounts, records, receipts and invoices that relate to the Community Benefit Sums and shall have the right to take copies of such accounts, records, receipts and invoices but for the avoidance of doubt The Glen App Windfarm Communities acknowledges that SPR has no obligation to review such accounts, records, receipts and invoices and has no responsibility or liability for the content of such documents or the expenditure of the Community Benefit Sums by The Glen App Windfarm Communities.

6.6 In the event that any of the community groups comprising The Glen App Windfarm Communities:

6.6.1 is subject to financial or operational difficulties which are capable of having a material impact on use of the Community Benefit Sums for Community Benefits or otherwise have a material effect on The Glen App Windfarm Communities’ ability to fulfil its obligations under this Agreement; or

6.6.2 is dissolved or ceases to exist or operate for any reason, or passes a resolution (or any court in a  competent jurisdiction makes an order) that the relevant Glen App Windfarm Community be wound up or dissolved or cease to exist or operate for any reason; or

6.6.3 becomes insolvent, or is declared bankrupt, or is placed into receivership, administration or liquidation, or a petition has been presented for its winding up, or enters into any arrangement or composition for the benefit of its creditors, or is unable to pay its debts as they fall due; or

6.6.4 becomes aware that Community Benefit Sums are or have been used unlawfully or for any unlawful purpose whatsoever; or

6.6.5 becomes aware that Community Benefit Sums have been used by The Glen App Windfarm Communities for purposes other than for Community Benefit or within the Community Area; or

6.6.6 or becomes aware that The Glen App Windfarm Communities has provided SPR with materially misleading or inaccurate information,

The Glen App Windfarm Communities shall notify this to SPR immediately upon becoming aware of such circumstance.

7. PUBLICITY

7.1 The Glen App Windfarm Communities shall permit SPR to use for the public relations purposes of SPR and its parent company the details of any scheme, project or expenditure funded by The Glen App Windfarm Communities using in whole or in part Community Benefit Sums.

7.2 The Glen App Windfarm Communities shall inform SPR of any event (such notification to be provided reasonably in advance of the event) related to a scheme, project or expenditure funded by The Glen App Windfarm Communities using in whole or in part Community Benefit Sums and which, in the opinion of The Glen App Windfarm Communities, SPR may reasonably wish to attend or refer to for public relations purposes.

7.3 Subject to compliance with all relevant laws, including data protection legislation, The Glen App Windfarm Communities shall comply with all reasonable requests by SPR for information that may assist in SPR’s promotional activities.

8. CORPORATE SOCIAL RESPONSIBILITY

8.1 The Glen App Windfarm Communities must ensure that the following measures are followed within their organisations in the performance of its obligations under the Agreement:

8.1.1 promote good practices, which foster and promote respect for human rights;

8.1.2 avoid complicity — in any form — in human rights abuses;

8.1.3 respect the freedom to join unions or the right of workers to engage in collective bargaining, subject to legal requirements existing under the law governing this Agreement;

8.1.4 eliminate all types or sorts of forced and compulsory labour, understood to be all types of work or service demanded from an individual under the threat of  any sort of punishment. Work should be obtained from the individual freely and voluntarily;

8.1.5 avoid any type of child labour in their organisations, respecting minimum   contracting ages in accordance with applicable, in force legislation, and   possess suitable and reliable means for the verification of employees’ age;

8.1.6 eliminate all discriminatory practices with respect to employment and occupation. To this effect, any distinction, exclusion or preference based on  race, colour, gender, religion, political opinion, national or social origin, whose  consequence is the nullifying or altering of equality with respect to   opportunities or work in one’s employment and occupation, shall be   considered to constitute discrimination;

8.1.7 maintain a preventative focus in the face of environmental issues in order to achieve sustainable development, limiting activities which may negatively impact the environment;

8.1.8 without prejudice to Clause 5 (Anti-Bribery) combat corruption in all of its forms, including extortion and bribery. To this effect, corruption will be   understood to be the abuse of power with which one has been entrusted for private gain; and

8.1.9 agree to comply with all applicable legislation in force which is linked to the provisions set out in this Clause 8.

8.2 The Glen App Windfarm Communities agree to notify SPR with regard to any situation in which a breach of the aforementioned principles is identified by any of them, as well as with regard to the plan to remedy such a breach. The Glen App Windfarm Communities shall also provide a plan for the remedy of any breach of the aforementioned principles that is identified by SPR. In the event that corrective plans are not implemented, SPR reserves the right to terminate this Agreement.

8.3 The Glen App Windfarm Communities will, at all times during the period in which this Agreement is in force, permit SPR to review the degree of compliance with the principles set out in this Clause 8.

9. PREVENTION OF MODERN SLAVERY

9.1 The Glen App Windfarm Communities represent and warrant to the SPR that:  9.1.1 they have not been and are not engaged in any practices involving the use of child labour, forced labour, the exploitation of vulnerable people, or human trafficking, including any activity or practice that would constitute an offence under s.1, s.2 and s.4 of the Modern Slavery Act 2015, if carried out in the UK (“slavery and human trafficking”);  9.1.2 the Glen App Windfarm Communities personnel and all other employees and agency workers of the Glen App Windfarm Communities are paid in compliance will all applicable employment laws and minimum wage requirements;  9.1.3 they will take reasonable steps to prevent slavery and human trafficking in connection with the Glen App Windfarm Communities’ business; and 9.1.4 they will respond to all reasonable requests for information required by the SPR for the purposes of completing the SPR annual anti-slavery and human trafficking statement. 9.2 The Glen App Windfarm Communities will permit the SPR and its third party representatives, on reasonable notice during normal business hours, but without notice if there are reasonable grounds to suspect an instance of slavery and human trafficking, to access and take copies of records and any other information held at the premises and to meet with personnel and more generally to audit compliance with their obligations under this Clause 9. The Glen App Windfarm Communities shall give all necessary assistance to the conduct of such audits during the term of this Agreement.  9.3 Any instances of slavery and human trafficking connected to the Glen App Windfarm Communities will entitle the SPR to immediately terminate the Agreement on providing notice to the Glen App Windfarm Communities (and without any liability by SPR to the Glen App Windfarm Communities).

10. TERMINATION

10.1 Without prejudice to SPR’s other rights and remedies and to clause 810.2, SPR may terminate this Agreement forthwith by written notice to The Glen App Windfarm Communities if the community groups comprising The Glen App Windfarm Communities fail to comply with any of its obligations set out in this Agreement and fail to rectify any such failure within thirty (30) days of receiving from SPR written notice of the failure and SPR may withhold payment of any Community Benefit Sum which would otherwise be payable in terms of this Agreement and without liability pending rectification of such failure.

10.2 SPR may terminate this Agreement forthwith by written notice to The Glen App Windfarm Communities if:

10.2.2 SPR has grounds for being concerned that Community Benefit Sums are or have been used unlawfully or for any unlawful purpose whatsoever;

10.2.3 SPR has grounds for being concerned that Community Benefit Sums have been used by The Glen App Windfarm Communities for purposes other than for Community Benefit or within the Community Area;

10.2.4 The Glen App Windfarm Communities provides SPR with materially misleading or inaccurate information;

10.2.5 Any of The Glen App Windfarm Communities cease to exist or to operate for any reason, or passes a resolution (or any court in a competent jurisdiction makes an order) that any of The Glen App Windfarm Communities be wound up or dissolved;

10.2.6 Any of The Glen App Windfarm Communities become insolvent, are declared bankrupt, or are placed into receivership, administration or liquidation, or a petition has been presented for its winding up, or it enters into any arrangement or composition for the benefit of its creditors, or it is unable to pay its debts as they fall due;

10.2.7 The Glen App Windfarm Communities or any member or employee of The Glen App Windfarm Communities has acted dishonestly or fraudulently or criminally or has taken any action and in the opinion of SPR such dishonest, fraudulent, criminal or other action may bring SPR or its parent company or group companies into disrepute or cause damage to the reputation of SPR or its parent company or group companies; or   810.2.8 the Consent is quashed, revoked or otherwise falls or for any other reason the Windfarm permanently ceases to generate electricity and SPR may withhold payment of any Community Benefit Sum which would otherwise be payable in terms of this Agreement and without liability for such time as required by SPR.

10.3 In the event of any of The Glen App Windfarm Communities being dissolved or ceasing to exist or operate for any reason any Community Benefit Sum paid in terms of this Agreement and unspent at the time The Glen App Windfarm Community(s) is dissolved or ceases to exist or operate shall, so far as is permitted by law, be transferred to a community organisation with the same or similar objectives as The Glen App Windfarm Communities to be used for Community Benefit within the Community Area, such transfer and community organisation having first been approved in writing by SPR at its sole discretion.

11. NO WAIVER

11.1 No failure or delay by SPR to exercise any right or remedy under this Agreement shall be construed as a waiver of that or any other right or remedy.

12. NO ASSIGNATION

12.1 The Glen App Windfarm Communities may not assign or transfer its interest in this Agreement without the prior written consent of SPR.

12.2 In the event that The Glen App Windfarm Communities considers it desirable, and may properly do so, The Glen App Windfarm Communities may nominate another party, such other party having first been approved in writing by SPR, to receive the payments to be made in terms of clause 3 of this Agreement. In the event that The Glen App Windfarm Communities exercises its right under this clause 1012.2 The Glen App Windfarm Communities shall procure that the nominated party delivers to SPR an agreement duly executed by the nominated party on the same terms and conditions as this Agreement subject to the substitution of the nominated party for The Glen App Windfarm Communities.

13. NO PARTNERSHIP OR AGENCY

13.1 This Agreement shall not create any partnership or joint venture between SPR and The Glen App Windfarm Communities, nor any relationship of principal and agent, nor authorise either Party to make or enter into any commitments for or on behalf of the other Party, and this Agreement does not create any obligation for The Glen App Windfarm Communities to provide goods or services to SPR.

14. NEW OPERATOR

14.1 In the event that the Windfarm is to be operated by a Third Party, SPR shall use reasonable endeavours to procure that the Third Party enters into an agreement with The Glen App Windfarm Communities on the same terms and conditions as this Agreement, whereupon The Glen App Windfarm Communities shall forthwith grant a validly executed Minute of full discharge of this Agreement. Should SPR cease to operate the Windfarm this Agreement shall terminate forthwith and the obligations of SPR in terms of this Agreement shall immediately cease save in respect of any antecedent breach of SPR’s obligations in terms of this Agreement.

15. RELEASE AND DISCHARGE

15.1 The Glen App Windfarm Communities shall, if requested by SPR, grant a validly executed Minute or Minutes of partial or full discharge, as the case may be, of this Agreement as soon as reasonably practicable upon completion of the whole or relevant part of SPR’s obligations contained within this Agreement.

15.2 Nothing in this Agreement shall prevent a Party from requesting a discharge or variation to the obligations contained in this Agreement.

16. DISPUTE RESOLUTION

16.1  Subject to clause 1416.3, in the event of any complaint or dispute regarding the  provisions of this Agreement the Parties shall first refer the matter for resolution by  individuals to be nominated by the Parties from time to time.

16.2  Subject to clause 1416.3, in the event that the complaint or dispute remains unresolved within fourteen (14) working days of the matter first being referred to the individuals nominated under clause 1416.1, either Party may refer the matter to an independent expert (who shall be deemed to act as an expert and not an arbiter) (“the Expert”) and shall immediately notify the other Party that the matter has been referred for expert determination. The Expert shall be such person as is agreed between the Parties or, failing agreement within twenty (20) working days of the date of notification that the matter has been referred for expert determination, shall be appointed on the request of either Party by the President of the Law Society of Scotland for the time being. The Expert shall receive written submissions from SPR and the The Glen App Windfarm Communities within twenty (20) working days of his appointment and shall undertake as a condition of his appointment to issue his decision within forty (40) working days of the date of his appointment. The decision of the Expert shall be final and binding on the Parties and expenses shall be borne and paid in such manner as the Expert shall determine and failing and such determination in equal shares.

16.3 The dispute resolution provisions in clauses 1416.1 and 1416.2 shall not apply to any complaint or dispute that relates to SPR’s rights to suspend or withhold

Community Benefit Sums or terminate this Agreement in terms of clauses 5, 9 and 810 of this Agreement.

17. NOTICES

17.1 Any notice or intimation which requires to be given in terms of this Agreement shall be in writing and shall be deemed to be sufficiently served if signed by or on behalf of the Party issuing the notice or intimation and either (i) delivered personally or (ii) sent by post using the pre-paid Signed For service to the address and for the attention of the relevant party set out in Clause 1517.2.

17.2 For the purposes of Clause 1517.1 the address and relevant party shall be as follows:

17.2.1 in the case of SPR, at its Registered Office and marked for the attention of SPR’s Legal Director, or to such other address as may have been notified in accordance with Clause 1517.1; and

17.2.2 in the case of The Glen App Windfarm Communities;  Ballantrae Community Council at Beachbank House, Foreland, Ballantrae, KA26 0NQ and marked for the attention of Dr Mhairi McKenna (Chair); Cairnryan Community Council at 21 Claddyburn Terrace, Cairnryan, Stranraer, DG9 8RD and marked for the attention of Tracy Davidson (Secretary); and Kirkcolm Community CouncilTrust at Craigholm, Church Road, Kirkcolm, Wigtownshire, DG9 0NW [address TBC] and marked for the attention of [Ian Morral, Chairname and designation TBC], or to such other address as may have been notified in accordance with Clause 1517.1.

17.3 Any notice or intimation shall be deemed to have been received (i) if delivered personally, at the time of delivery and (ii) if posted using the pre-paid Signed For service, on the next Working Day following the date of posting. In proving service, it shall be sufficient to prove that the envelope containing the notice or intimation was duly addressed to the relevant party, in accordance with Clause 1517.2, as posted to the place to which it was so addressed.

18. VAT

18.1 The Parties do not consider that:

18.1.1 The Glen App Windfarm Communities are in business; or

18.1.2 this Agreement amounts to or requires the provision of services or goods by  The Glen App Windfarm Communities to SPR,  and consequently the Parties agree that The Glen App Windfarm Communities are not making a taxable supply for VAT purposes to SPR. Any sums paid in accordance with the terms of this Agreement shall be inclusive of any VAT which may be determined by Her Majesty’s Customs and Revenue to be properly payable.

19. LAW OF SCOTLAND

19.1 This Agreement shall be construed in accordance with the Law of Scotland and the Parties prorogate the exclusive jurisdiction of the Scottish Courts.

20. ENTIRE AGREEMENT

20.1 This Agreement constitutes the entire agreement between the parties and supersedes any prior drafts, agreements, undertakings, understandings, representations, warranties and arrangements of any nature between the parties, whether or not in writing, in relation to the subject matter of this Agreement.

21. NO RELIANCE

21.1 Each party warrants that is has not entered into this Agreement in reliance on any representation, warranty or undertaking which is not expressly stated in this Agreement and any representation, warranty or undertaking implied by law or by custom is expressly excluded.

IN WITNESS WHEREOF these presents consisting of this and the preceding 20 pages together with the Schedule are executed as follows:

ScottishPower Renewables Directors Print     Signature     Date

 

Print     Signature     Date

 

Ballantrae Community Council Print     Signature     Date

 

Print     Signature     Date

 

Cairnryan Community Council Print     Signature     Date

 

 

Print     Signature     Date

 

 

Kirkcolm Community Council  Print     Signature     Date

 

 

Print     Signature     Date

 

 

 

This is the Schedule referred to in the foregoing Minute of Agreement between Scottish Power Renewables (UK) Limited and The Glen App Windfarm Communities