Exhibit 10.3.48
leg. 2.3.8.2.1.1.1.2
PERFORMANCE AGREEMENT AND FOURTH AMENDMENT TO THE
PURCHASE POWER CONTRACT DATED MARCH 24, 1986 AS AMENDED
THIS PERFORMANCE AGREEMENT AND FOURTH AMENDMENT ("Performance
Agreement" or "Fourth Amendment") is made as of this 12th day of February 1996
("Execution Date"), by and between HAWAII ELECTRIC LIGHT COMPANY, INC. (the
"Company" or "HELCO"), and PUNA GEOTHERMAL VENTURE (the "Seller" or "PGV").
WHEREAS, the Company is an operating electric public utility on the
Island of Hawaii subject to the Hawaii Public Utilities Law (Hawaii Revised
Statutes, Chapter 269) and the rules and regulations of the Hawaii Public
Utilities Commission (the "PUC" or "Commission");
WHEREAS, the Company has entered into a Purchase Power Contract for
Unscheduled Energy Made Available From a Qualifying Facility (the "Unscheduled
Energy Contract") dated March 24, 1986, with Thermal Power Company ("Thermal
Power") which was approved by the PUC by Decision and Order No. 8692, dated
March 25, 1986, in Docket No. 5525;
WHEREAS, Thermal Power assigned the Unscheduled Energy Contract to
AMOR VIII and AMOR VIII assigned the Unscheduled Energy Contract to PGV;
WHEREAS, HELCO and PGV have entered into that certain Firm Capacity
Amendment to Purchase Power Contract, dated July 28, 1989 ("Firm Capacity
Amendment"), which amended the Unscheduled Energy Contract, and was approved by
the PUC by Decision and Order No. 10519, dated February 14, 1990, in Docket No.
6498;
WHEREAS, by Amendment to Purchase Power Contract, As Amended ("Second
Amendment"), HELCO and PGV amended the Unscheduled Energy Contract and Firm
Capacity Amendment;
WHEREAS, a number of issues arose between the Company and Seller which
they settled in a Settlement Agreement dated March 7, 1995 ("Settlement
Agreement");
WHEREAS, as part of the Settlement Agreement, the Company and Seller
agreed to a third amendment ("Third Amendment") to the Unscheduled Energy
Contract, Firm Capacity Amendment, and the Second Amendment (the Unscheduled
Energy Contract as amended by the Firm Capacity Amendment, the Second Amendment,
and the Third Amendment and as may be amended from time to time, is referred to
as the "Amended PPC") (The Third Amendment was approved on an interim basis by
the PUC by Interim Decision and Order No. 13876, dated May 5, 1995, in Docket
No. 95-0074);
WHEREAS, Seller presently provides to the Company, and the Company
presently purchases from Seller, twenty-five (25) megawatts ("MW") of firm
capacity from Seller's Facility pursuant to the Amended PPC;
WHEREAS, the Seller desires to sell to the Company an additional five
(5) MW of firm capacity generated by the Facility above the twenty-five (25) MW
of firm capacity presently supplied, and the Company wishes to purchase such
Energy from the Seller, upon the terms and conditions set forth herein;
WHEREAS, the Seller's Facility will continue to be throughout the term
of this Performance Agreement either (1) a qualifying, small power production
facility under Subchapter 2 of the PUC's Standards for Small Power Production
and Cogeneration in the State of Hawaii, Chapter 74 of Title 6 of the State's
Administrative Rules, or (2) a "non-fossil fuel producer" within the meaning of
Section 269-27.2, Hawaii Revised Statutes;
NOW, THEREFORE, in consideration of the premises and the respective
promises herein, the Company and the Seller hereby agree as follows:
I. THE PROJECT
A. Enhancement and Operation of Seller's Facility
1. Seller agrees to provide the Company with five (5) megawatts of
firm capacity in addition to the twenty-five (25) megawatts of firm capacity
currently being provided pursuant to the Amended PPC (for a total of thirty
megawatts of firm capacity) and 18,600 kvar of reactive under this Agreement.
The reactive shall be in proportion to power in the range of 0.85 lagging to 1.0
unity power factor and shall be dispatched by the Company to keep the Seller's
generator within the limits of plus or minus 5% of the generator voltage.
2. Attached as Exhibit A, is a description of the proposed
enhancements (the "Project") to Seller's Facility to enable Seller to provide an
additional five (5) MW of firm capacity (a total of thirty megawatts of firm
capacity) and 18,600 kvar of reactive. Seller's Facility as modified by the
Project is referred to hereinafter as "Seller's Facility".
3. Seller shall be responsible for all costs associated in any way
with Seller's Facility and/or the Project.
4. Seller shall be responsible for obtaining all permits, licenses,
approvals and any other requirements
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reasonably required for Seller to provide the additional five (5) megawatts of
firm capacity pursuant to this Performance Agreement.
5. Within sixty (60) days of the Execution Date, a final (1) a
single-line diagram of Seller's Facility, (2) relay list, and (3) trip scheme,
all as may be modified by the Project, shall be prepared and, subject to the
review and acceptance thereof by both parties, signed and attached to Attachment
B To The Fourth Amendment as Exhibit 1 to Appendix B and made a part thereof.
Such single line diagram shall expressly identify the final location on the
Point of Interconnection.
6. Within sixty (60) days of the Execution Date, the design and
specifications for protective equipment to protect HELCO's system, as may be
modified by the Project, shall be prepared and, subject to the review and
acceptance thereof by both parties, signed and attached to Amended PPC and made
a part thereof.
7. Attached hereto as Exhibit B is a project schedule relating to the
Project.
8. Prior to the Commercial Operation Date (as defined below) of the
Seller's Facility to produce the additional five (5) megawatts of firm capacity
(for a total of thirty (30) megawatts of firm capacity), Seller shall inform
HELCO on the third business day of every month of the status of the Seller's
Project as of the last day of the prior month, including but not limited to, any
revisions to the date of installation, the date of operation in parallel with
the Company's System, and the anticipated Commercial Operation Date (as defined
below) of the Seller's Facility for the additional five (5) megawatts of Firm
Capacity.
B. Acceptance Tests. The Company shall conduct acceptance tests as part of
the determination of when Firm Capacity payments related to the additional five
(5) megawatts of firm capacity should begin.
1. Upon completion and testing of Seller's Facility as modified by the
Project by Seller for the additional five (5) megawatts of firm capacity, Seller
shall give HELCO seven (7) days prior notice of the time and date when Seller
will be ready to begin the 100 continuous hours acceptance test for the
additional five (5) megawatts of firm capacity.
2. Upon the agreed upon time and date, the Company shall conduct the
100 continuous hours acceptance test for the additional five (5) megawatts of
firm capacity ("Acceptance Test"). At a minimum, Seller must be able to deliver
to the
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Company 100% of the Seller's Firm Capacity Obligation (30,000 kw of capacity and
18,600 kvar of reactive) for 100 consecutive hours under Company's Dispatch (as
defined in Attachment E to the Fourth Amendment). The Acceptance Test may be
started and/or completed prior to the Effective Date (as defined below) of this
Performance Agreement.
3. As the last step of the Acceptance Test, Seller shall ramp Seller's
Facility down to simulate a sudden loss of system load. Seller shall decrease
power output from thirty (30) megawatts to ten (10) megawatts at an average ramp
rate of one (1) megawatt per minute. Seller shall ramp Seller's Facility up in
power output to simulate an increase in demand on the Facility. Seller shall
increase power output from eighteen and one-half (18.5) megawatts to thirty (30)
megawatts at an average ramp rate of one (l) MW/minute. In addition, during the
Acceptance Test, the Seller shall demonstrate the ability to adjust kvars from
1,500 to 18,600.
4. The Seller's performance throughout the Acceptance Test shall be
monitored remotely through the SCADA system and recorded. In addition, the
Seller shall also allow HELCO representatives to be stationed at Seller's
Facility to verify all data and ensure that all operational changes made at the
request of HELCO were done within the bounds of good engineering and operating
practices.
5. Upon successful completion of the Acceptance Test, HELCO will
notify Seller in writing of the acceptance of the additional 5 MW of firm
capacity and Seller will immediately acknowledge in writing such acceptance by
HELCO. The date on which Seller's Facility is deemed to be capable of reliable
delivery of the additional five (5) megawatts of firm capacity pursuant to this
Performance Agreement after the successful completion of the Acceptance Test is
referred to herein as the "Commercial Operation Date".
II. PROJECT COMPLETION
A. Commercial Operation Date. The Commercial Operation Date shall occur
prior to or within six (6) months after the later of PUC Approval (as defined
below in Section IV.A) or Bank's Consent (as defined in Section IV.B. below).
B. Penalties For Not Meeting Commercial Operation Date Deadline. If the
Commercial Operation Date for the additional five (5) megawatts does not occur
within nine (9) months of the later of the date of PUC Approval or Bank's
Consent (the "Commercial Operation Date Deadline"), then:
1. Seller shall pay HELCO one cent ($0.01) per on-peak hour for each
kilowatt deficiency until Seller
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satisfies the Acceptance Test. Kilowatt deficiency is the difference in
kilowatts at any given time between the 5,000 kilowatts PGV is required to
produce hereunder and the actual amount produced by PGV pursuant to this
Performance Agreement.
2. Seller shall pay to HELCO late charges in the amount of $1,380.00
per day for each day commencing on the Commercial Operation Date Deadline until
the Commercial Operation Date.
3. Any penalties incurred under this Section II.B. shall cease to
accrue one year after the Commercial Operation Date Deadline.
III. INTERCONNECTION FACILITIES
A. The parties believe that there are no additional interconnection
facilities required for HELCO's system to accept the additional five (5)
megawatts of Energy to be provided by Seller pursuant to this Performance
Agreement.
B. If it is later determined that additional interconnection facilities are
needed, then Seller shall be responsible for cost and construction of all
interconnection facilities required to deliver the additional 5 MW of firm
capacity from Seller's Facility to the Company's System.
C. Seller shall be responsible for one hundred percent (100%) of the
maintenance costs associated with any upgrade of existing interconnection
facilities.
IV. APPROVALS REQUIRED PRIOR TO EFFECTIVE DATE
A. Public Utilities Commission Approval.
1. The parties will use their best efforts, including without
limitation, participation in any PUC proceeding at the request of the other
party, to obtain an appropriate decision and order satisfactory to the Company
("PUC Approval") that approves this Agreement and authorizes the Company to
include payments made to the Seller hereunder in the Company's Energy Cost
Adjustment Clause pursuant to Rule 6-60-6, Standards For Electric and Gas
Utility Service, Title 6, Chapter 60, of the Hawaii Administrative Rules, and
in the Company's Firm Capacity Surcharge pursuant to Section 269-27.2(d), Hawaii
Revised Statutes, or in the Company's base rates pursuant to Section 269-16(b),
Hawaii Revised Statutes, whichever occurs first.
2. The Company shall be responsible for submitting the application for
PUC Approval and for all of the Company's costs associated thereto. Seller shall
cooperate with the
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Company in any reasonable manner to assist the Company in the application for
PUC Approval and Seller shall be responsible for its costs in providing such
cooperation and assistance.
3. Notwithstanding anything in this Performance Agreement to the
contrary, in the event that the Commission denies the Company's application to
include all payments to Seller hereunder in the Company's Energy Cost Adjustment
Clause pursuant to Rule 6-60-6, Standards For Electric and Gas Utility Service,
Title 6, Chapter 60, of the Hawaii Administrative Rules, and the Company's Firm
Capacity Surcharge pursuant to Section 269-27.2(d), Hawaii Revised Statutes, or
in the Company's base rates pursuant to Section 269-16(b), Hawaii Revised
Statutes, then this Fourth Amendment, at HELCO's option and in HELCO's sole
discretion, shall be null and void and of no further force and effect. HELCO
shall have thirty (30) days from the date the PUC decision and order denying the
Company's application becomes final and non-appealable to terminate this
Agreement pursuant to this Section IV.A.
B. Consent of Bank
1. Seller, at its own expense, shall use its best efforts to obtain
from Credit Suisse, a bank organized and existing under the laws of Switzerland,
as Agent and Collateral Agent for the benefit of its own account and such other
financial institutions as may participate in the funding and other risks
associated with the Facility (the "Bank"), a Consent of the Bank to this Fourth
Amendment, related documents, and the transactions and obligations of Seller
herein, substantially in the form attached hereto as Exhibit C ("Bank's
Consent").
2. Notwithstanding anything in this Performance Agreement to the
contrary, in the event that the Bank does not execute the Bank's Consent, then
this Fourth Amendment shall be null and void and of no further force and effect.
V. EFFECTIVE DATE/CONDITIONS PRECEDENT
A. Effective Date. The obligations of the parties under Section IV and
Section VI of this Performance Agreement shall become effective on the Execution
Date. The remaining provisions of this Performance Agreement (excluding Section
IV and Section VI) shall not become effective until the later of (1) the date of
obtaining PUC Approval, or (2) the date of obtaining the Bank's Consent (the
"Effective Date").
B. Conditions Precedent. In addition to Section V.A., except for the
obligations of the parties under Section IV and Section VI of this Performance
Agreement, in no event shall the
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Company be obligated under this Performance Agreement until the fulfillment of
the following conditions:
1. The Company obtains PUC Approval as specified in Section IV.A.
above;
2. Seller shall obtain and deliver to HELCO Bank's Consent,
substantially in the form attached hereto as Exhibit C;
3. Seller successfully completes to HELCO's satisfaction the
Acceptance Test described in Section I.B.;
4. Seller fulfills all of its In-Kind Obligations (as defined in the
Settlement Agreement) under the Settlement Agreement; and
5. Each party shall have delivered or cause to be delivered to the
other party, such documents which may be reasonably required pursuant to this
Performance Agreement.
C. Term. This Performance Agreement shall remain in effect for the same
period of time as the Amended PPC, unless otherwise provided in this Performance
Agreement.
VI. TERMINATION/DEFAULT
A. This Performance Agreement will terminate:
1. if the Bank's Consent is not received prior to June 1, 1996;
2. at HELCO's option, to be exercised by written notice to Seller by
June 15, 1997, if PUC Approval satisfactory to HELCO is not received prior to
May 1, 1997;
3. at HELCO's option, to be exercised by written notice to Seller,
pursuant to Section IV.A.3.;
4. at the option of a non-defaulting party to be exercised by written
notice to the other party if the other party commits any Event of Default and
fails to cure such default in accordance with Sections VI.D. or VI.E. below; or
5. upon the termination of the Amended PPC.
B. The occurrence of any of the following events at anytime during this
Agreement shall constitute an "Event of Default" under this Performance
Agreement by the Company:
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1. in the event of nonperformance by the Company of any material
obligation under this Performance Agreement;
2. failure of the Company to pay any amounts due and payable under
this Performance Agreement within sixty (60) days after receipt of invoice;
3. the Company shall (1) be dissolved, be adjudicated as bankrupt, or
become subject to an order for relief under any bankruptcy law; (2) fail to pay,
or admit in writing its inability to pay, its debts generally as they become
due; (3) make an assignment for the benefit of creditors; (4) apply for, seek,
consent to, or acquiesce in the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for itself or any substantial part of
its property; (5) institute any proceedings seeking an order for relief or to
adjudicate it as bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization, or
relief of debtors; or (6) take any action to authorize or effect any of the
foregoing actions;
4. without the application, approval, or consent of the Company, a
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Company or any part of its property, or a proceeding described in
Section VI.B.3. above shall be instituted against the Company and such
appointment shall continue undischarged or such proceeding shall continue
undismissed or unstayed for a period of 60 consecutive days or the Company shall
fail to file timely and answer or other pleading denying the material
allegations filed against it in any such proceeding;
5. as provided for in Appendix E of the Amended PPC.
C. The occurrence of any one of the following events at anytime during this
Performance Agreement shall constitute an "Event of Default" under this
Performance Agreement by Seller:
1. if Seller has failed to (a) have the injection pumps (as defined in
Exhibit A attached hereto) on-site within twenty-three (23) weeks after the
later of PUC Approval or the Bank's Consent or (b) have the injection pumps
installed within twenty-six (26) weeks after the later of PUC Approval or the
Bank's Consent.
2. if Seller cannot satisfactorily complete the Acceptance Test
described in Section I.B within twenty-one (21) months after the later of PUC
Approval or the Bank's Consent;
8
3. if Seller cannot satisfactorily fulfill its In-Kind Obligations
under the Settlement Agreement and related documents within twenty-one (21)
months after the later of PUC Approval or the Bank's Consent, provided that, in
the event that HELCO declines to take Energy from PGV pursuant to Section
II.B.2.C. of the Settlement Agreement from the Effective Date of this
Performance Agreement, then the twenty-one (21) month period shall be extended
by adding one day to the twenty-one (21) month period for each one hundred (100)
megawatthours ("mwh") (rounded to the nearest increment of 100 mwh) of Energy
HELCO declines to accept under Section II.B.2.C of the Settlement Agreement,
provided further that, notwithstanding anything to the contrary, any Energy
offered to HELCO by PGV above 30 MW per hour during on-peak periods and/or above
25 MW per hour during off-peak periods, and declined by HELCO, shall not be
included in calculating any extension of the twenty-one (21) month period;
4. in the event of nonperformance by Seller of any material obligation
in this Performance Agreement;
5. failure of Seller to pay any amounts due and payable under this
Performance Agreement within sixty (60) days after receipt of invoice;
6. abandonment of the Project or the discontinuance by the Seller of
services covered under this Performance Agreement for a period of twelve (12)
consecutive months unless such discontinuance is caused by Force Majeure under
Section VIII below or an Event of Default by the Company;
7. if Seller shall (1) be dissolved, be adjudicated as bankrupt, or
become subject to an order for relief under any bankruptcy law; (2) fail to pay,
or admit in writing its inability to pay, its debts generally as they become
due; (3) make an assignment for the benefit of creditors other than the Bank;
(4) apply for, seek, consent to, or acquiesce in the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for itself or any
substantial part of its property; (5) institute any proceedings seeking an order
for relief or to adjudicate it as bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization, or relief of debtors; or (6) take any action to authorize or
effect any of the foregoing actions;
8. without the application, approval, or consent of Seller, a
receiver, trustee, examiner, liquidator or similar official shall be appointed
for Seller or any part of its property, or a proceeding described in Section
VI.C.7. above shall be instituted against Seller and such appointment shall
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continue undischarged or such proceeding shall continue undismissed or unstayed
for a period of 60 consecutive days or Seller shall fail to file timely and
answer or other pleading denying the material allegations filed against it in
any such proceeding;
9. the failure to keep in force and effect all permits, approvals,
licenses, permits and the like, reasonably required for Seller to provide the
additional five (5) megawatts of firm capacity under this Performance Agreement;
10. the failure to maintain qualification of Seller's Facility
pursuant to Section IX.E; or
11. as provided for in Appendix E of the Amended PPC.
D. If an Event of Default, other than failure to make any payment due and
payable within sixty (60) days after receipt of invoice, by either party shall
extend for a period of sixty days after receipt of written notice of such Event
of Default from the non-defaulting party, then the non-defaulting party may, at
its option, terminate this Performance Agreement by delivering written notice of
such termination to the party in default and/or may institute such legal action
or proceedings or resort to such other remedies as it deems necessary; provided,
however, that the party not in default shall not terminate this Performance
Agreement at the end of such sixty day period if the party in default has
corrected or commenced appropriate steps to correct such default and is
diligently prosecuting same to completion. Such termination shall be effective
on the date of written notice of termination to the party in default and shall
not prejudice any rights of the non-defaulting party.
E. If the Event of Default is based on a party's failure to make any
payment that is due and payable under this Performance Agreement, the party
claiming such Event of Default shall give written notice to the non-paying party
stating that such payment is deemed payable. The non-paying party shall have ten
(10) days from the receipt of such notice to make the required payment and if
payment is not made within such ten (10 day period, the non-defaulting party may
terminate this Performance Agreement pursuant to written notice provided in
accordance with Section VI.D. above.
F. Rights And Obligations Of The Parties Upon Default. If this Performance
Agreement is terminated pursuant to this Section VI, the parties shall have no
further obligations to each other hereunder except for such obligations as have
been incurred hereunder prior to such termination.
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Notwithstanding the foregoing, in the event of default, the
non-defaulting party may exercise whatever legal or equitable remedies may be
available to it against the defaulting party. However, the parties further agree
that in no event shall either party be liable to the other for lost profits.
G. Interpretation of Amended PPC. In the event this Performance Agreement
is terminated, but the Amended PPC is still in effect, then the Amended PPC
shall be interpreted as if the amendments to the Amended PPC described in
Section VII below were never effective.
H. No Cross Default. A breach of or default under this Performance
Agreement shall not constitute a breach of or default under the Amended PPC. No
Event of Default under this Performance Agreement shall constitute an Event of
Default under the Amended PPC unless such event is specifically enumerated as an
Event of Default under the Amended PPC.
VII. AMENDMENT OF THE AMENDED PPC
A. Upon the fulfillment of the conditions precedent set forth in Sections
V.A. and V.B. above, the Amended PPC shall be amended as follows:
1. Appendix A, Description Of Seller's Generation And Conversion
Facilities, of the Amended PPC is deleted in its entirety and replaced by
Attachment A, which is attached hereto and made a part hereof.
2. Appendix B, Facilities Owned By The Seller, of the Amended PPC is
deleted in its entirety and replaced by Attachment B, which is attached hereto
and made a part hereof.
3. Appendix C, Interconnection Facilities Owned By The Company, of
the Amended PPC is deleted in its entirety and replaced by Attachment C, which
is attached hereto and made a part hereof.
4. Appendix D, Power Purchases By Company, of the Amended PPC is
deleted in its entirety and replaced by Attachment D, which is attached hereto
and made a part hereof.
5. Appendix F, Definitions, of the Amended PPC is deleted in its
entirety and replaced by Attachment E, which is attached hereto and made a part
hereof.
6. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, of the Amended PPC is deleted in its
entirety and replaced by Attachment F, which is attached hereto and made a part
hereof.
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B. Upon the fulfillment of the conditions precedent set forth in Section
V.B. above and the amendment of the Amended PPC as specified in Section VII.A.
above, HELCO shall begin to make Firm Capacity payments pursuant to Paragraph
3(d) of Appendix B and Paragraph B.2. of Appendix D of the Amended PPC as
amended by this Performance Agreement.
VIII. FORCE MAJEURE
A. If either party shall be wholly or partially prevented from performing
any of its obligations under this Performance Agreement by reason of an event of
force majeure reasonably beyond its control and not attributable to its neglect,
then and in any such event, such party shall be excused from whatever
performance is prevented by such event to the extent so prevented, and such
party shall not be liable for any damage or loss resulting therefrom. Events of
force majeure shall include accidents, lightning, rain, earthquake, wind,
wind-blown water, riots, fire, flood, invasion, insurrection, lava flow or
volcanic activity, tidal wave, civil commotion, the order of any court, judge or
civil authority, war, and any act of God or the public enemy or any other cause
beyond the reasonable control of the party relying on such cause to excuse its
performance hereunder to the extent to which the party cannot remedy the problem
by exercise of due diligence, including, but not limited to, the expenditure of
all reasonable sums of money; provided that inadequate or extreme reservoir
pressures, temperature, or the presence of foreign substances therein shall not
be considered to be an event of force majeure except as provided in Section
VIII.C. below.
Notwithstanding the foregoing, however, force majeure does not include
any labor dispute, any failure of Seller to obtain and/or maintain any permit or
any full or partial curtailment of the electric output of the Facility that is
caused by or arises from a mechanical or equipment breakdown, even if the
breakdown occurs without the fault or negligence of Seller, unless such
breakdown is caused by any of the specific force majeure events listed above and
could not have been reasonably prevented.
B. The party claiming an event of force majeure shall give prompt written
notice of such event to the other party within 30 days of the date such party
claiming force majeure knew or should have known of the event of force majeure.
In addition, such party shall use reasonable diligence, to the extent
practicable, to limit the impact of such event on the performance of its
obligations under this Performance Agreement. Notwithstanding the foregoing,
this Section VIII.B. shall not excuse any payment obligation that has
theretofore accrued under this Performance Agreement.
C. Inadequate or extreme reservoir pressures, temperatures, or the presence
of foreign substances therein,
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shall not be an event of force majeure unless the Seller has taken reasonable
actions to avoid or mitigate any adverse impact on the Seller's ability to meet
its obligations under this Performance Agreement including the expenditure of
all reasonable sums of money.
D. Any obligation of either party under this Performance Agreement shall be
excused only to the extent and for the period that the party's inability to
perform is caused by a force majeure event. The party so excused shall make all
reasonable efforts including all reasonable expenditures of necessary funds to
cure, mitigate or remedy a force majeure event. Any payments due as compensation
for the obligation so excused shall also be excused for so long as the
obligation is not performed due to force majeure.
E. In the event that the Commercial Operation Date of the additional five
(5) megawatts is delayed because of an event or events of force majeure, the
time periods specified in Sections II.A and II.B shall be extended on a
day-for-day basis to match the duration of the event of force majeure.
F. Notwithstanding any other provision of this Performance Agreement, if a
party is prevented from substantially performing its obligations under this
Performance Agreement by an event of force majeure that continues for a period
of twelve (12) consecutive months, the other party may terminate the Performance
Agreement without further liability of either party to the other hereunder. Such
termination shall be effective upon 90 days written notice given any time after
the twelve month period has expired but prior to the resumption of substantial
performance; provided, however, that if substantial performance is resumed
during that 90 day period, such termination shall not be effective.
IX. MISCELLANEOUS PROVISIONS
A. Transmission Line Agreement. If, upon fulfillment of the conditions
precedent of Section V.B. of this Performance Agreement, Seller is or thereafter
becomes obligated to supply HELCO an amount of Energy equal to the remaining
Transmission Line Obligation (as defined in the Settlement Agreement) pursuant
to Section II.C.5 of the Settlement Agreement, then HELCO and PGV agree that the
remaining Transmission Line Obligation shall be paid by offsetting any amounts
owed by HELCO to PGV for energy payments for Energy provided to HELCO above 25
MW during on-peak periods and above 22 MW during off-peak periods. Presently,
the remaining Transmission Line Obligation is Two Million Nine Hundred Eighteen
Thousand Seven Hundred And No/100 Dollars ($2,918,700.00).
B. Entire Agreement. Subject to Section VI.G. herein, this Performance
Agreement, the Amended PPC and the Settlement
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Agreement, including any and all attachments, exhibits and related documents
(including, without limitation, the Transmission Line Agreement) constitute the
entire understanding between the parties, supersedes any and all previous
understandings between the parties, and binds and inures to the benefit of the
parties, their successors and assigns. The parties have entered into this
Performance Agreement in reliance upon the representations and mutual
undertakings contained herein and not in reliance upon any oral or written
representation or information provided to one party by any representative of the
other party. No modification, amendment or waiver of all or any part of this
Performance Agreement shall be valid unless it is in writing and signed by both
parties.
C. Continuing Effect. To the extent not amended by this Performance
Agreement, the Amended PPC shall remain in full force and effect.
D. Authority. All action on the part of the parties to authorize the
execution, delivery and performance of this Performance Agreement and the
consummation of the transactions contemplated herein, shall have been duly and
validly taken by each party and that this Performance Agreement constitutes a
valid and binding obligation of each party.
E. Further Performance. Each party hereto shall and does hereby agree to
make, execute, deliver and cooperate with each other, as the case may be, any
and all agreements, instruments, documents, records and/or funds, as the case
may be, whatsoever required, necessary and/or convenient to effect and
consummate this Performance Agreement and to permit performance of all acts
required hereunder.
F. Defined Terms. Capitalized terms not otherwise defined in this
Performance Agreement shall have the meaning ascribed to them in the Amended
PPC.
G. Electric Service Supplied By HELCO. This Performance Agreement and the
Amended PPC do not provide for any electric services by HELCO to Seller. If
Seller requires any electric services from HELCO, Seller shall receive such
service in accordance with HELCO's tariff.
H. Affiliated Interest. The Seller shall not sell or transfer more than a
10% equity interest to any person or entity, or enter into any other transaction
that would make the Seller an Affiliated Interest with the Company as defined by
Section 269-19.5, Hawaii Revised Statutes, without first notifying the Company
and receiving appropriate PUC approval, if any is required. If the PUC (or any
other entity which has the authority to do so) finds that the Seller is an
Affiliated Interest with the Company, the Seller shall have 60 days to take
whatever action may be appropriate to render the
14
relationship not to be an Affiliated Interest. The Company shall have the right
to terminate the Amended PPC, including this Fourth Amendment and any future
amendments, if the PUC prohibits the Company from recovering any payments made
to the Seller under this Amended PPC, as amended herein and from time to time,
due to the effect of Section 269-19.5, Hawaii Revised Statutes, relating to
affiliated interests.
I. Qualification Of Seller's Facility. Seller's Facility will continue to
be throughout the term of this Performance Agreement either (1) a qualifying;
small power production facility under Subchapter 2 of the PUC's Standards for
Small Power Production and Cogeneration in the State of Hawaii, Chapter 74 of
Title 6 of the State's Administrative Rules, or (2) a "non-fossil fuel producer"
within the meaning of Section 269-27.2, Hawaii Revised Statutes.
J. Governing Law. This Performance Agreement shall be subject to, governed
by, construed and enforced in accordance with the laws of the state of Hawaii,
without regard to choice of law principles, and each of the parties hereto shall
and does hereby agree to submit to the personal jurisdiction and venue of the
Circuit Court of the Third Circuit of the State of Hawaii or the United States
District Court for the District of Hawaii, as the case may be.
K. Headings. The headings herein are inserted only for convenience and
reference, and shall in no way define, limit or describe the scope or intent of
any provision of this Performance Agreement.
L. No Party Deemed Drafter. This performance Agreement reflects the results
of negotiations between the parties hereto and, therefore, no party shall be
deemed to be the drafter of this Performance Agreement. This Performance
Agreement or any provision hereof shall not be construed or interpreted by any
Circuit or Federal Court or other authority of competent jurisdiction before
which this Performance Agreement is properly presented against any party as
drafter.
M. Severability. If any term or provision of this Performance Agreement or
the application thereof to any person, entity or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Performance Agreement,
or the application of such term or provision to persons, entities or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Performance
Agreement shall be valid and enforceable to the fullest extent permitted by law.
N. Waiver. The failure of either party to enforce at any time any of the
provisions of this Performance Agreement, or to require at any time performance
by the other party of any of the provisions hereof, shall in no way be construed
to be a
15
waiver of such provisions, nor in any way to affect the validity of this
Performance Agreement or any part hereof, or the right of such party thereafter
to enforce every such provision.
O. Notice. Unless otherwise provided, all notices, requests, demands and
other communications hereunder shall be in writing and shall be deemed given if
(1) delivered personally, or (2) by facsimile transmission (followed with a hard
copy by first class mail, postage prepaid), or (3) three (3) Business Days after
being mailed by certified or registered mail, postage prepaid, return receipt
requested, to the parties at the following addresses or at such other addresses
as the parties shall have specified by notice hereunder:
If to HELCO:
HAWAII ELECTRIC LIGHT COMPANY, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: President
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to PGV:
PUNA GEOTHERMAL VENTURE
▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
or
P. O. ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: General Manager
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
P. Counterparts/Facsimile Signatures. This Performance Agreement may be
executed and delivered by the parties hereto in any number of counterparts, each
of which shall be delivered an original or duplicate original, and all of which
together shall constitute one and the same instrument or agreement. Counterparts
may be exchanged by facsimile, which facsimile signatures shall be effective for
all purposes and treated in the same manner as physical signatures.
Notwithstanding the foregoing, the party using facsimile signatures agrees that
it will promptly forward physically signed copies of this Performance Agreement
to the other party.
16
IN WITNESS WHEREOF, the Company and the Seller have executed this
Performance Agreement as of the day and year first above written.
HAWAII ELECTRIC LIGHT COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PUNA GEOTHERMAL VENTURE
By AMOR VIII CORPORATION,
a Delaware corporation,
Its General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By CE PUNA L.P.,
a Maryland limited partnership,
Its General Partner
By CE PUNA I, INC.,
a Maryland corporation,
Its General Partner
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
17
IN WITNESS WHEREOF, the company and the Seller have executed this
Performance Agreement as of the day and year first above written.
HAWAII ELECTRIC LIGHT COMPANY, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
PUNA GEOTHERMAL VENTURE
By AMOR VIII CORPORATION,
a Delaware corporation,
Its General Partner
By: /s/ Illegible
-------------------------------------
Name: Illegible
Title: President
By CE PUNA L.P.,
a Maryland limited partnership,
Its General Partner
By CE PUNA I, INC.,
a Maryland corporation,
Its General Partner
By: /s/ JR ▇▇▇▇▇▇▇
----------------------------
Name: JR ▇▇▇▇▇▇▇
Title: Vice President
17
STATE OF HAWAII )
) ss.
CITY AND COUNTY OF HONOLUL )
On this 8th day of February, 1996, before me personally appeared ▇▇▇▇▇▇ ▇.
▇. ▇▇▇, to me personally known, who, being by me duly sworn, did say that he is
the PRESIDENT, of HAWAII ELECTRIC LIGHT COMPANY, INC., a Hawaii corporation,
and that foregoing Performance Agreement was signed on behalf of HAWAII ELECTRIC
LIGHT COMPANY, INC. by authority of its Board of Directors, and said officer
acknowledged said Performance Agreement to be the free act and deed of HAWAII
ELECTRIC LIGHT COMPANY, INC.
/s/ Illegible
------------------------------
Notary Public, State of Hawaii
My Commission Expires: 3/22/98
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On this 5th day of February, 1996, before me personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ to me personally known, who, being by me duly sworn, did say that he
is the Vice President, of HAWAII ELECTRIC LIGHT COMPANY, INC., a Hawaii
corporation, and that foregoing Performance Agreement was signed on behalf of
HAWAII ELECTRIC LIGHT COMPANY, INC. by authority of its Board of Directors, and
said officers acknowledged said Performance Agreement to be the free act and
deed of HAWAII ELECTRIC LIGHT COMPANY, INC.
/s/ ▇▇▇▇▇ ▇. Rocker
------------------------------
Notary Public, State of Hawaii
My Commission expires: ▇-▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ )
) SS.
COUNTY OF ____________ )
On this 12th day of FEBRUARY, 1996, before me personally appeared ▇▇▇▇▇▇ ▇.
FAHRENDURF to me personally known, who, being by me duly sworn, did say
that he is the PRESIDENT of AMOR VIII CORPORATION, a Delaware corporation;
that said corporation is a general partner of Puna Geothermal Venture, a Hawaii
general partnership, named in the foregoing Performance Agreement; that said
Performance Agreement was executed by said corporation as the duly authorized
general partner of and on behalf of Puna Geothermal Venture, and acknowledged
that the seal affixed to the foregoing Performance Agreement is the corporate
seal of said corporation, and that said Performance Agreement was signed and
sealed on behalf of said corporation by authority of its Board of Directors and
in the name of and on behalf of Puna Geothermal Venture, and said officer and
acknowledged said Performance Agreement to be the free act and deed of AMOR VIII
Corporation as general partner of PUNA GEOTHERMAL VENTURE.
/s/ Illegible
------------------------------
Notary Public State of OREGON
My Commission expires: 10-16-99
---------------------------------------------
[GRAPHIC] OFFICIAL SEAL
▇▇▇▇▇ ▇ ▇▇▇▇▇▇
NOTARY PUBLIC . OREGON
COMMISSION NO. 047943
MY COMMISSION EXPIRES OCT. 16, 1999
---------------------------------------------
STATE OF Maryland )
) SS.
COUNTY OF Harford )
On this 9th day of February, 1996, before me appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to
me personally known, who, being by me duly sworn, did say that he/she is the
Vice President of CE PUNA I, INC., a Maryland corporation; that said corporation
is a general partner of CE Puna Limited Partnership, a Maryland limited
partnership; that said CE Puna Limited Partnership is a general partner of Puna
Geothermal Venture, a Hawaii general partnership named in the foregoing
Performance Agreement; that said Performance Agreement was executed by said
corporation as the duly authorized general partner of and on behalf of CE Puna
Limited Partnership, as the duly authorized general partner of and on behalf of
Puna Geothermal Venture, and acknowledged that the seal affixed to the foregoing
Performance Agreement is the corporate seal of said corporation, and that said
Performance Agreement was signed and sealed on behalf of said corporation by
authority of its Board of Directors and in the name of and on behalf of CE Puna
Limited Partnership and in the name of and on behalf of Puna Geothermal Venture,
and said officer acknowledged said Performance Agreement to be the free act and
deed of said corporation and as said general partner of CE Puna Limited
Partnership as the general partner of Puna Geothermal Venture.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Notary Public State of Maryland
My Commission expires: 5/1/96
[GRAPHIC]
ATTACHMENT A
TO THE
FOURTH AMENDMENT
APPENDIX A
DESCRIPTION OF SELLER'S GENERATION AND CONVERSION FACILITIES
1. Name of facility: Puna Geothermal Venture
(a) Location: Honuaula, Puna, County of Hawaii, State of Hawaii
(b) Telephone number (for system emergencies)
System Emergencies:
(▇▇▇) ▇▇▇-▇▇▇▇
Switch Board
(▇▇▇) ▇▇▇-▇▇▇▇
(c) Company billing account number: 06 686 520 01
2. Owner: Puna Geothermal Venture
3. Operator(1): Puna Geothermal Venture
4. Name of person to whom payments are to be made:
(a) Mailing address: Puna Geothermal Venture
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(b) Hawaii Gross Excise Tax License Number: 30067799
5. Equipment:
(a) Type of facility and conversion equipment: Back pressure steam
turbines integrated with air-cooled organic rankine cycle Ormat Energy
Converters.
(b) Design capacity:(2) Total 30 MW
----------
1 Attach a letter signed by an officer of the Seller warranting that the
Seller is in good standing with the Hawaii Department of Commerce and
Consumer Affairs.
2 The "Design Capacity" may exceed 30 MW to the extent necessary for Seller
to furnish up to 30 MW of "Allowed Capacity" as defined in Appendix F,
provided that the "Allowed Capacity" of this Contract shall be 30 MW.
ATTACHMENT A
TO THE
FOURTH AMENDMENT
(c) Single or 3 phase: 3 phase
(d) Name of manufacturer: Ormat or equivalent
(e) Date of interconnection: December 31, 1989
6. Projected date of operation in parallel to company's System ("Operational
Date"): First 25 MW - July 1, 1990
Next 5 MW - Nine (9) months after the later of PUC Approval or
Bank's Consent
7. Date Firm Capacity Begins: First 25 MW - June 26, 1993
Next 5 MW - Upon the
fulfillment of the conditions precedent set
forth in Sections V.A. and V.B. of the
Performance Agreement
8. Insurance carrier: Attached hereto as Exhibit 1 to Appendix A
9. If the owner is not the operator, a copy of the agreement between the owner
and the operator which allows the operator to use the facility and which
establishes the scope of operations by the operator and the respective
rights of the owner and the operator with respect to the sale of electric
energy from the Seller's facility shall be provided to HELCO.
10. If the land on which the facilities are located is not owned by the
facility's owner, a copy of the agreement with the owner of the land which
establishes the right of the facility's owner to put the facility on the
land and the existence of required rights of way and easements shall be
provided to HELCO.
2
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
COSI PUNA, INC.
&
PUNA GEOTHERMAL VENTURE
Addendum to Executive Summary
LIABILITY
1. Commercial General Liability - Provides protection for those sums you
become legally obligated to pay as damages because of Bodily injury or
Property Damage to a third party, caused by an occurrance, and arising out
of the insured premises and/or those operations necessary or incidental to
your business. Coverage also includes products and completed operations,
contractual liability, independent contractors coverage, personal and
advertising injury, fire legal liability and medical payments.
Named
Insured: Puna Geothermal Venture;
COSI Puna, Inc.
Insurance
Company: Lexington Insurance Company
Policy
Number: CGL 553 55 81
Limits of
Liability: $1,000,000 Each Occurrence
$1,000,000 Personal and Advertising injury
$ 10,000 Medical Payments per Person
$ 100,000 Fire Legal Liability
$1,000,000 Products/Completed
Operations Aggregate
$2,000,000 General Aggregate
Deductible: $ 25,000 each occurrence BI & PD Liability
Policy Term: March 31, 1995 to March 31, 1996
[GRAPHIC]
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
LIABILITY
2. Business Automobile Liability and Physical Damage - Provides protection for
those sums you become legally obligated to pay as damages because of Bodily
injury or Property Damage to a third party, arising from the ownership,
maintenance, or use of any owned, hired, or non-owned automobile, as
outlined in the policy. Other coverages include uninsured motorists,
medical payments and physical damage (Comprehensive and Collision for
owned and hired vehicles).
Insurance
Company: Gulf Insurance Company
Policy
Number: BA 543 69 52
Limits of
Liability: $1,000,000 Bodily injury
$1,000,000 Property Damage
$1,000,000 Uninsured Motorists
$ 20,000 Personal injury Protection
$1,000,000 Hired and Non-Owned Automobile
Deductible: $ 1,000 Comprehensive
$ 1,000 Collision
Policy Term: 6/1/95-_/1/96
Note: Schedule of vehicles on file with Company.
[GRAPHIC]
2
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
3. Workers Compensation and Employers Liability - Provides protection to your
employees for any injury, death, or disease arising out of and in the
course of employment, as outlined in the policy. Benefits are Paid
according to the Workers Compensation Law and Occupational Disease Law of
each State or Territory.
Insurance
Company: The Travelers Insurance Company
Policy
Number: SUB599K484294
Limits of
Liability:
Coverage A: Worker's Compensation - Statutory
Coverage B: Employers Liability
$1,000,000 B_ by Accident
$1,▇▇▇.▇▇▇ B_ by Disease Policy Limit
$1,000,000 B_ by Disease Each Employee
Policy Term: 11/22/94 - 11/22/95
[GRAPHIC]
3
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
4. Umbrella Liability - Protects against catastrophic third party liability
losses by providing excess limits of liability over and above the
following: General Liability, Automobile Liability, and the Employers
Liability portion of the Worker's Compensation policy. Coverage is subject
to terms, conditions and exclusions of the following policy:
Named
Insured: Puna Geothermal Venture;
COSI Puna, Inc.
Insurance
Company: Lexington Insurance Company
Policy
Number: _667359
Limit of
Liability: $25,000,000 Each Occurrence
$25,OOO,OO0 General Aggregate
Self
Insured
Retention: $25,000
Policy
Term: March 31, 1995 to March 31, 1996
[GRAPHIC]
4
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
Control of Well - Provides protection for cost to gain control of well; the
expense to redrill and/or restore the well to the condition prior to the
blowout and cleanup and pollution expenses resulting from a blowout. A
separate endorsement extends the policy to cover contractor's equipment
(not rigs) in the insured's care, custody or control.
Named
Insured: Puna Geothermal Venture;
COSI Puna, Inc.
Insurance
Company: Underwriter's at Lloyd's London and Certain
Insurance Companies (through GSR)
Policy
Number: _2741
Limits: $20,000,000 Ea. Occurrence, _EE (100%)
$ 1,000,000 Care, Custody & Control (100%)
Deductible: $ 25,000 Each Occurrence, per Section, _EE (100%)
$ 25,000 Care, Custody & Control (100%)
Policy Term: March 31, 1995 to March 31, 1996
Note: Premium Subject to Audit
[GRAPHIC]
5
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
PROPERTY
Property Damage - Provides repair or replacement cost coverage for damage
to all real and personal property, including Business Interruption
resulting from a covered peril. Provides coverage for fire and extended
coverages, flood, earthquake, and transit, all subject to policy terms,
conditions and exclusions.
Boiler & Machinery - Provides repair or replacement cost coverage,
including Business Interruption, resulting from sudden and accidental
damage to objects, or parts thereof, subject to policy exclusions. Objects
include, but are not limited to, pressure, mechanical, and electrical
apparatus, including turbine generators.
Insurance Company: Insurance Company of North America (INA)
Policy Number: EUTFD835821-7
Policy Term: 8/1/95 - 8/1/95
Highlights of Limits:
Combined Property Damage and Boiler & Machinery including: Business
Interruption, Flood, Pollution Cleanup & Removal, Errors & Omissions, and
Debris Removal
Combined Limit $102,916,000 per occurrence
Sub-Limits applicable to Property Damage:
Earthquake $40,000,000
Accounts Receivable $ 5,000,000
Valuable Papers $ 5,000,000
Demolition/Increased
Cost of Construction $ 5,000,000
Extra Expense $ 5,000,000
[GRAPHIC]
6
ATTACHMENT A
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix A
Property in Transit $ 5,000,000
Newly Acquired Property $ 5,000,000
(90 days)
Transmission/
Distribution Lines $ 1,500,000
Sub-Limits applicable to Boiler & Machinery:
Business interruption $13,514,000
Service interruption $ 5,000,000
Extra Expense $ 5,000,000
Expediting Expense $ 1,000,000
Hazardous Substance $ 1,000,000
Ammonia Contamination $ 1,000,000
Water Damage $ 1,000,000
Deductibles:
Property Damage $ 50,000 except;
Transmission/
Distribution Lines $ 250,000
Named Windstorms $ 250,000
Earthquake $ 100,000 or 2% whichever is greater
Business interruption 30 day waiting period except;
Service interruption 45 hour waiting period
[GRAPHIC]
7
ATTACHMENT B
TO THE
FOURTH AMENDMENT
APPENDIX B
FACILITIES OWNED BY THE SELLER
1. Seller's Facility
(a) A final (1) a single-line diagram of Seller's Facility, (2) relay
list, and (3) trip scheme shall be prepared and, subject to the review
and acceptance thereof by both parties, signed and attached hereto as
Exhibit 1 to Appendix B and made a part hereof. Such single-line
diagram expressly identifies the final location of the Point of
Interconnection.
Material changes or additions to the Seller's Facility reflected in
the single-line diagram, relay list, and trip scheme shall not be made
without the prior written consent of the Company pursuant to Section 3
of the Contract. If any changes in or additions to such Facility,
records, and operating procedures are required by the Company, the
Company shall specify such changes to the Seller in writing, and
except in the case of an emergency, Seller shall have the opportunity
to review any such change or addition in advance.
(b) The Seller shall furnish, install, operate and maintain facilities
such as breakers, relay, switches, synchronizing equipment, monitoring
equipment and control and protective devices acceptable to the Company
as suitable for parallel operation with the Company's System. Such
facilities shall be accessible at all times to authorized Company
personnel.
(c) The Seller shall furnish, install and maintain in accordance with the
Company's requirements all conductors, service switches, fuses, meter
sockets, meter and instrument transformer housing and mounting,
switchboard meter test buses, meter panels and similar devices
required for service connections and meter installations on the
Seller's premises.
(d) Seller shall install transducers, metering, AC and DC sources,
telephone lines, and provide interconnecting wiring for supervisory
and communications equipment.
(e) The Company has reviewed and accepted the design drawings and ▇▇▇▇ of
Material for the Seller's electrical equipment required to
interconnect with
ATTACHMENT B
TO THE
FOURTH AMENDMENT
the Company's System. The type of electrical equipment, the type of
protective relaying equipment (which equipment shall be mutually
agreeable to the parties) and the settings that affect the reliability
and safety of operation of the Company's and Seller's interconnected
system shall be acceptable to the Company. The Company, at its option,
may request to witness operation of control, synchronizing, and
protection schemes.
(f) The Seller shall provide a manual disconnect device which provides a
visible break to separate the Seller's Facility from the Company's
System. Such disconnect device shall be lockable in the OPEN position
and be readily accessible to Company personnel at all times.
(g) In order to allow Seller's Facility to remain on-line and to assist in
restart of parallel operation thereof with the Company's System,
Seller may provide automatic equipment to isolate Seller's Facility
from the Company's System during large system disturbances; provided
that such automatic equipment has been approved by the Company prior
to installation for compatibility with Company's System.
2. Operating Procedures
(a) The Company may require periodic reviews of the Seller's Facility,
maintenance records, available operating procedures and policies, and
relay settings, and may request changes it deems necessary to protect
the Company's System from damages resulting from the Seller's parallel
operation.
(b) Logs shall be kept by the Seller for information on unit availability,
including reasons for planned and forced outages; circuit breaker trip
operations; relay operations, including target initiation; and other
unusual events. The Company shall have the right to review these logs,
especially in analyzing system disturbances. The Seller will provide
the Company with subsequent written confirmation any time the Seller
experiences a unit trip. Such confirmation will include the date and
time of the occurrence as well as the cause of the unit trip.
(c) Seller shall limit its Facility's ramp rate to less than 2 MW/min.
(d) The Company's Load Dispatcher shall specify the power factor at which
energy is delivered by the Seller to
2
ATTACHMENT B
TO THE
FOURTH AMENDMENT
the Company. Typical power factor requirements will normally operate
in a range of 0.85 lagging to 1.0.
(e) If Seller is separated from the Company's System for any reason, the
Seller, under no circumstances, shall reclose into the Company's
system without first obtaining specific approval to do so from the
Company's Load Dispatcher. Such approval shall be withheld only when
such reclosing is not in accordance with Section 17(a) of this
Contract and the Company's standard practices, policies and
procedures.
(f) The Company's Load Dispatcher will notify the Seller whenever the
Seller must be separated from the Company's System pursuant to
Sections 6 and 7 of this Contract. When possible, reasonable advance
notice will be given to the Seller by the Company's Load Dispatcher,
provided this provision does not limit the Company's obligation to
give notice under Section 6(b) of this Contract.
(g) The Seller shall submit the next five-year maintenance requirement in
writing to the Company each year no later than June 30 of the previous
year. The Company shall specify the maintenance schedule for the
five-year period and inform the Seller in writing no later than
September 30 of the same year. The Company shall not unreasonably
delay maintenance of the Seller's Facility and will cooperate with
Seller in establishing a reasonable schedule for the Seller's
maintenance requirements.
(h) The Seller shall notify the Company's Load Dispatcher prior to
synchronizing a generator onto or taking a generator off the system.
Such notification should be as far in advance as reasonably possible
under the circumstances causing the action.
(i) Company Dispatch - The Company shall have the sole and absolute right,
through supervisory equipment or otherwise, to control, from moment to
moment, within the limits of sound engineering practices, the rate of
delivery of energy and capacity subject to a Legally Enforceable
Obligation to a maximum of the Seller's Firm Capacity Obligation.
3. Seller's Firm Capacity Obligation
(a) Firm Capacity Obligation. The Seller shall furnish the Company 30,000
kw of capacity and 18,600 kvar of reactive from the Effective Date of
the Fourth
3
ATTACHMENT B
TO THE
FOURTH AMENDMENT
Amendment until the end of the contract term pursuant to a Legally
Enforceable Obligation, under the Company's Dispatch during the entire
term hereof except for the "annual overhaul period" set forth in
Paragraph 3(b) of this Appendix B. The reactive shall be in proportion
to power in the range of 0.85 lagging to 1.0 unity power factor and
shall be dispatched by the Company to keep the Seller's generator
within the limits of plus or minus 5% of the generator voltage.
(b) Plant Shutdown Period. The Seller may shut its facility down and shall
have no obligation to furnish the Company the capacity described in
Paragraph 3(a) of this Appendix B during the "Annual Overhaul Period."
During each contract year the Annual Overhaul Period shall not be
longer than 28 days and shall be taken during the period beginning May
15 and ending September 30, the specific days to be determined each
contract year with the Company's approval, which approval shall not be
unreasonably withheld, and shall not be in conflict with the schedule
established for the Company's other firm capacity contracts.
(c) Minimum Delivery Guarantee By The Company. The Company shall accept as
much of the power made available from the Seller as possible, given
the limitations resulting from the Company's obligations to purchase
minimum amounts of firm capacity from other firm capacity sellers, the
Company's existing obligations to purchase As-Available Energy, the
Company's need to keep a minimum number of its own generating units
on-line at least at a reasonable minimum loading, the Company's load
during certain times of the day and other operating reasons, provided
that the Company shall accept 25,000 kw during the on-peak hours (7:00
a.m. to 9:00 p.m.), and 20,000 kw in 1990 and 22,000 kw after 1990
during the off-peak hours. The Company shall purchase a minimum of
178,000,000 kwh each year from the Seller under the Company's Dispatch
subject to the provisions of Section 6 and 7 of the Contract. The
178,000,000 kwh amount shall be reduced by the Energy (kwh) that the
Seller should have delivered to the Company but could not due to
reasons other than the Annual Overhaul Period and force majeure.
(d) Capacity Payments. The Company shall pay the Seller for the Firm
Capacity under Company Dispatch subject to a Legally Enforceable
Obligation that the Seller is obligated to deliver to the Company
pursuant to
4
ATTACHMENT B
TO THE
FOURTH AMENDMENT
Paragraph 3 of this Appendix B as provided for by Paragraph B of
Appendix D of this Contract.
(e) Sanctions for Non-Performance. The Seller shall pay the sanctions
provided for by Paragraph D of Appendix D of this Contract if it fails
to satisfy its firm capacity obligations under this Contract.
4. Access to Facility
(a) Seller hereby grants HELCO the right, but not the obligation, for the
term of this Contract to enter upon the Facility with such prior
notice as is reasonable under the circumstances to take such action as
may be necessary in the reasonable opinion of HELCO (i) to maintain,
inspect, read and test meters and other HELCO equipment, and (ii) to
interconnect, interrupt, monitor or measure electrical generation
produced at Seller's Facility.
(b) PGV shall provide in the first month of every year on an annual basis
throughout the term of this Contract, information and geothermal data
in substantially the form attached hereto as Exhibit 2 to Appendix B.
In addition, at HELCO's request, PGV shall meet with HELCO and provide
such data, information and access to PGV's Facility reasonably
required to update the December 12, 1995 "Geothermal Resource
Assessment, Puna Geothermal Venture Expansion, Kilauea East Rift,
Hawaii" by ▇▇▇▇▇▇ ▇▇▇▇▇ of Therma Source, Inc. and the January 15,
1996 "Analysis of Fluid Compositions at the Puna Geothermal Venture 30
mWe Geothermal Facility" by ▇▇▇▇▇▇ ▇▇▇▇▇▇ of G-Tech Services, and/or
provide a similar analysis to these reports.
5
ATTACHMENT B
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix B
[To Be Attached -- Attach hereto a copy of a single-line diagram of the Seller's
Facility, relay list, and trip scheme within sixty (60) days of the Execution
Date (as defined in the Performance Agreement) pursuant to the Performance
Agreement.]
ATTACHMENT B
TO THE
FOURTH AMENDMENT
Exhibit 2 To Appendix B
PUNA GEOTHERMAL VENTURE
KS10 PRODUCTION WELL DATA
-----------------------------------------------------------------
AVERAGE AVERAGE
WELLHEAD WELLHEAD
HOURS PRESSURE TEMP
Mo. Total ON PROD STEAM BRINE TOTAL (PSIG) (DBGF)
-----------------------------------------------------------------
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
-----------------------------------------------------------------
-----------------------------------------------------------------
Yr. Total
-----------------------------------------------------------------
KS09 PRODUCTION WELL DATA
-----------------------------------------------------------------
AVERAGE AVERAGE
WELLHEAD WELLHEAD
HOURS PRESSURE TEMP
Mo. Total ON PROD STEAM BRINE TOTAL (PSIG) (DBGF)
-----------------------------------------------------------------
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
-----------------------------------------------------------------
-----------------------------------------------------------------
Yr. Total
-----------------------------------------------------------------
ATTACHMENT B
TO THE
FOURTH AMENDMENT
Exhibit 2 To Appendix B
PUNA GEOTHERMAL VENTURE
COMBINED INJECTION DATA
QUANTITIES OF FLUID INJECTED (K POUNDS)
--------------------
MO. TOTAL GEOFLUID
--------------------
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
NOV
DEC
--------------------
--------------------
Yr. Total
--------------------
2
ATTACHMENT C
TO THE
FOURTH AMENDMENT
APPENDIX C
Interconnection Facilities Owned By The Company
1. The Company will design, construct, own, operate and maintain all
facilities on the Company's side of the Point of Interconnection required
to interconnect the Company's System with the Seller's Facility at 69 kv,
including, without limitation, the following equipment at the Seller's
Facility:
(a) Necessary instrument transformers, test facilities (except switchboard
meter test buses), meters, and protective line relays.
(b) Supervisory and communication equipment for remote control and
metering (a Remote Terminal Unit) at the Seller's Facility.
(c) Provided, however, that PGV will construct the permanent switching
station at the Point of Interconnection.
(d) The Seller shall be responsible for the costs to design, permit,
construct, and install the interconnection facilities owned by the
Company.
2. The terms relating to the design, permitting, construction and operation of
certain Interconnection Facilities, including power transmission lines,
required to be installed in order to accept Energy from Seller's Facility
have been determined by separate agreements between the parties. This
Contract is subject in all respects to the parties conclusion of
satisfactory terms regarding the construction, installation and operation
of such Interconnection Facilities and the payment therefor. To the extent
a portion of such costs is to be paid by Seller, an allocation shall be
agreed to by the parties that reflects benefits to Buyer's System of
constructing or upgrading such Interconnection Facilities or portions
thereof that are not required solely to interconnect Seller's Facility.
Such cost allocation shall be subject to review and approval by the PUC.
Presently, the Company and Seller's have entered into a Transmission Line
Agreement, dated March 7, 1995, which is pending before the PUC for
approval. The Transmission Line Agreement is incorporated herein by
reference.
ATTACHMENT C
TO THE
FOURTH AMENDMENT
3. The Seller shall reimburse the Company for any costs incurred in operating,
maintaining, replacing, or relocating Company-owned Interconnection
Facilities to the extent that such costs exceed Company's cost if the
Seller were not interconnected to the Company's System.
4. The Company shall maintain full and complete information logs and records
of (i) all meter readings; (ii) the calculation of amounts due to Seller;
(iii) the operation and maintenance of the Interconnection Facilities; and
(iv) information to verify events described in Section 6(a), 6(b), and 7 of
this Contract, including but not limited to, unit availability (including
reasons for planned and forced outages), circuit breaker trip operations,
and relay operations (including target initiation).
5. The Seller shall be allowed to review the information logs and records
maintained by the Company pursuant to Section 4 of this Appendix C, above,
during the Company's normal business hours in accordance with the Company's
rules for service to its customers.
2
ATTACHMENT D
TO THE
FOURTH AMENDMENT
APPENDIX D
POWER PURCHASES BY COMPANY
(For 30 MW)
A. ENERGY PURCHASES BY THE COMPANY
1. Subject to the other provisions of this Contract, including but not
limited to Sections 6 and 7 of this Contract:
a. The Company shall accept and pay for the first twenty-five (25)
megawatts of on-peak Energy and the first twenty-two (22)
megawatts of off-peak Energy generated by the Seller's Facility
and delivered by the Seller to the Company at the higher of: (a)
the respective on-peak and off-peak energy rates set forth in
Paragraph A.3.a. of this APPENDIX D, or (b) $0.0656/kilowatthour
("kwh") on-peak or $0.0543/kwh off-peak; provided, however, that
the rate of delivery of such Energy under this Paragraph A.1.a
shall not exceed twenty-five (25) megawatts on-peak and
twenty-two (22) megawatts off-peak at any given time.
b. The Company shall accept and pay for an additional five (5)
megawatts of on-peak Energy (above the twenty-five (25) megawatts
delivered pursuant to Paragraph A.1.a above) generated by the
Seller's Facility and delivered by the Seller to the Company at
the higher of: (a) the on-peak energy rate set forth in Paragraph
A.3.b. of this APPENDIX D, or (b) the Minimum Purchase Rate set
forth in Paragraph A.4. of this APPENDIX D; provided, however,
that the rate of delivery of such Energy under this Paragraph
A.1.b shall not exceed five (5) megawatts at any given time.
c. At the Company's sole discretion, the Company may accept and pay
for any additional on-peak Energy provided above the thirty (30)
megawatts of on-peak Energy (delivered pursuant to Paragraphs
A.1.a. and A.1.b. above) at the higher of: (a) the on-peak energy
rate set forth in Paragraph A.3.b. of this APPENDIX D, or (b) the
Minimum Purchase Rate set forth in Paragraph A.4. of this
APPENDIX D.
ATTACHMENT D
TO THE
FOURTH AMENDMENT
d. At the Company's sole discretion, the Company may accept and pay
for any additional off-peak Energy above the twenty-two (22)
megawatts of off-peak Energy (delivered pursuant to Paragraph
A.1.a. above) generated by the Seller's Facility and delivered by
the Seller to the Company at the higher of: (a) the Energy
Rate/kwh calculated for on-peak energy set forth in Paragraph
A.3.b. of this APPENDIX D less $0.01/kwh, or (b) $0.02/kwh.
e. The Company agrees that it will not enter into any new contracts
with independent power producers or amend any existing contracts
with independent power producers that would obligate the Company
to take any more off-peak As-Available Energy than the Company is
presently obligated to take under an existing agreement without
first agreeing to take an additional 5 megawatts of off-peak
Energy from Seller. This provision shall not apply to the
purchase, either in a new or existing contract with an
independent power producer, of any additional amount of off-peak
energy required in such contract because of the reasonable
minimum operating requirements of an independent power producer.
2. Energy furnished by Seller to the Company shall be metered by a
time-of-day meter that measures Energy delivery on at least one hour
intervals. The Company shall not pay for any Energy that may be
delivered by the Seller prior to installation and operation of the
Company's meters. The on-peak hours shall be those between 7:00 a.m.
and 9:00 p.m. daily, and the off-peak hours shall be those between
9:00 p.m. on one day and 7:00 a.m. on the following day.
3. Energy Rates
a. The on-peak energy rate for the first 25 MW of on-peak Energy and
the off-peak energy rate for the first 22 MW of off-peak Energy
delivered pursuant to Paragraph A.1.a. above shall be one hundred
percent (100%) of the Company's respective on-peak and off-peak
Avoided Energy Costs (including avoided costs of fuel and
operation and maintenance) in cents per kilowatthour, calculated
in accordance with the provisions of the PUC's standards, on file
with the PUC and in effect for the month in which such Energy is
delivered.
2
ATTACHMENT D
TO THE
FOURTH AMENDMENT
b. The on-peak energy rate for the next 5 MW of on-peak Energy
(above 25 MW) delivered pursuant to Paragraph A.1.b. above shall
be:
On-Peak Energy
Rate/kwh = [Fuel Rate (Base Charge) x A) + [Variable O & M
Rate (Base Charge) x (GDPIPD (current)/
GDPIPD (base))]
The terms in the above formula shall have the following meanings
as stated:
Fuel Rate (Base Charge): $0.038/kwh
A = Fuel Actual (Diesel)/Fuel Base (Diesel) where:
Fuel Actual (Diesel) is the average of each of the Thursday
high and low Pacific Northwest Spot 0.5% No. 2 prices for
Diesel Fuel ("PNW No. 2 prices"), as reported by Oil Price
Information Service ("OPIS") from the 21st day of the second
preceding month to the 20th day of the month preceding the
month Energy is delivered to HELCO (Computation Month),
expressed in dollars per gallon, rounded to the fourth
decimal place; and
Fuel Base (Diesel) is the average of each of the Thursday
high and low PNW No. 2 prices as reported by OPIS from the
21st day of November 1995 to the 20th day of December 1995,
expressed in dollars per gallon, rounded to the fourth
decimal place and which the parties agreed is $0.5444/
gallon.
If OPIS is not published or does not publish a high and low
price for a particular Thursday during the relevant one
month period, the high and low prices for the closest
preceding day for which OPIS publishes a price report will
be used.
In the event that PNW No. 2 prices are not published by OPIS
then the parties agree to use another publication that
publishes PNW No. 2 prices. In the event that PNW No. 2
prices are not published or otherwise available, the parties
agree to adjust the
3
ATTACHMENT D
TO THE
FOURTH AMENDMENT
Fuel Rate (Base Charge) by a new index, which, to the extent
practicable, shall be applied in the same fashion as the
index represented by the term "A" in the above formula.
Variable O & M Rate (Base Charge) = $0.0029/kwh
GDPIPD (current) = the final Gross Domestic Product Implicit
Price Deflator ("GDPIPD") (there are four
categories of GDPIPD -- advance, preliminary,
final and revised final) as published by the
United States Department of Commerce,
Economics and Statistics Administration,
Bureau of Economic Analysis ("Department of
Commerce") for the third quarter of the
calendar year preceding the calendar year in
which the Energy is delivered.
GDPIPD (base) = the final GDPIPD as published by the
Department of Commerce for the third quarter
of 1995.
In the event that GDPIPD is not published by Department of
Commerce, the parties agree to adjust the Variable O & M Rate
(Base Charge) by another index mutually agreed upon by the
parties.
When adjusting the Variable O&M Rate (Base Charge), the
adjustment shall apply to the energy delivered by Seller to HELCO
in the month of the adjustment date (January 1) and then invoiced
for payment in the following month. In other words, the annual
adjustment factor will be first applied to the energy delivered
in January to be invoiced in February.
An example of the On-Peak Energy calculation is attached hereto as
Exhibit 1 to Appendix D.
4. The Minimum Purchase Rate, as defined in APPENDIX F of this Contract,
shall apply to the five (5) megawatts of Energy delivered by Seller
under
4
ATTACHMENT D
TO THE
FOURTH AMENDMENT
Paragraph A.1.b. above to the Company during the term of this
Contract.
5. During each payment period Seller shall be credited at the rate of
$0.002 per kilovarhour for each kilovarhour furnished by the Seller to
the Company in excess of .62 x kwh. The kvarh meters shall be adjusted
to prevent reversal in the event the power factor is leading.
6. This paragraph intentionally left blank.
7. The Seller shall deliver Energy under Company Dispatch pursuant to a
Legally Enforceable Obligation as follows:
a. On-Peak Period. During the 14 hour period from 7:00 a.m. to 9:00
p.m. each day, the Seller shall be obligated to deliver Energy
under the Company's Dispatch at a rate equal to the Seller's Firm
Capacity Obligation described in Paragraph 3.(a) of APPENDIX B of
this Contract.
b. Off-Peak Period. During the 10 hour period from midnight to 7:00
a.m. and 9:00 p.m. to midnight each day, the Seller shall be
obligated to deliver energy under the Company's Dispatch at a
rate not greater than the Seller's Firm Capacity Obligation
described in Paragraph 3.(a) of APPENDIX B of this Contract and
not less than the Minimum Delivery Guarantee.
B. CAPACITY PURCHASES BY THE COMPANY
1. As compensation for providing the Firm Capacity under Company Dispatch
as described in Paragraph 3(a) of APPENDIX B, the Company will pay the
Seller a capacity payment, payable monthly within 20 days after the
last day of the calendar month in which the firm capacity was
provided, of 1/12 of the Annual Capacity Payment Rate.
2. The Capacity Payment Rate shall be:
a. $4,000,000 per year for the first twenty-five (25) megawatts of
firm capacity under Company Dispatch as described in Paragraph 3
of APPENDIX B beginning on June 26, 1993; and subject to the
sanction provision of Paragraph D.1. of APPENDIX D; and
5
ATTACHMENT D
TO THE
FOURTH AMENDMENT
b. $504,750 per year for the next five (5) megawatts of firm
capacity under Company Dispatch above the first twenty-five (25)
megawatts of firm capacity in Subsection B.2.a. as described in
Paragraph 3 of APPENDIX B beginning on the date of the
fulfillment of the conditions precedent set forth in Sections
V.A. and V.B. of the Fourth Amendment; provided that the Seller
has satisfied the Acceptance Test requirement of Section I.B. of
the Fourth Amendment; and subject to the sanction provision of
Paragraph D.1. of APPENDIX D. If the first year of operation for
the additional 5 MW of firm capacity is a partial calendar year
then the amount of the Capacity Payment ($504,750) shall be
prorated on a daily basis ($1,380 per day) from the date of the
fulfillment of the conditions precedent set forth in Sections
V.A. and V.B. of the Fourth Amendment through December 31 of that
year.
3. The Company shall not be required to pay any additional capacity
payment for any additional power supplied by the Seller, either at the
Company's or the Seller's request.
4. A failure by the Seller to provide the required Firm Capacity to the
Company shall result in the reduction in the capacity payment due to
the Seller from the Company in accordance with Paragraph D of APPENDIX
D of this Contract. The Company shall not have any obligation to pay
capacity payments to the Seller for periods in excess of twenty-four
hours in which the Seller is unable to fulfill its obligations under
the Contract, including but not limited to (i) circumstances which are
subject to Paragraph 15 of this Contract relating to Force Majeure
without fault, or (ii) for periods in which the Seller does not
fulfill its obligations under Paragraph 3 of APPENDIX B of this
Contract due to the Seller's "default," as such term is defined in
APPENDIX E of this Contract.
5. If the Seller does not satisfy its firm capacity obligations as
described in Paragraph 3 of APPENDIX B and Paragraph C of this
APPENDIX D of this Contract, it shall pay sanctions as described in
Paragraph D of this APPENDIX D.
6
ATTACHMENT D
TO THE
FOURTH AMENDMENT
C. PERFORMANCE STANDARDS
1. The Seller acknowledges and agrees that the Seller's generating
facility is expected to meet the following minimum standards for
satisfactory day-to-day performance during each contract year: (i) an
On-peak Availability (excluding the four-week annual maintenance
period and downtime due to a catastrophic equipment failure) of 95
percent or better; (ii) not more than 6 Plant Trips per year; and
(iii) a forced outage rate of 5 percent or less.
2. The "On-peak Availability" of the Seller's Facility (in percent) is to
be computed by adding the total on-peak Energy under Company's
Dispatch subject to a Legally Enforceable Obligation available from
the Seller's Facility during the contract year, and dividing by the
product of 4,718 on-peak hours per 48 week year (4,732 for leap years)
times the Firm Capacity Obligation (prorated on a daily basis, if
necessary) and multiplying the total by 100 percent.
3. "Catastrophic Equipment Failure" means a sudden, unexpected failure of
a major piece of equipment which (i) substantially reduces or
eliminates the capability of the Seller's Facility to produce power,
(ii) is beyond the reasonable control of the Seller and could not have
been prevented by the exercise of due diligence by the Seller, and
(iii) despite the exercise of all reasonable efforts, requires more
than sixty (60) days to repair.
4. "Plant Trip" means the sudden and immediate removal of the Seller's
Facility from service as a result of an immediate
mechanical/electrical/hydraulic control system trip or operator
initiated trip/shutdown which requires the Company to take immediate
steps to place an unscheduled generator on line to make up for the
loss of output of the Seller's Facility; provided, however, that a
Plant Trip shall not include: (i) any such removal which occurs within
forty-eight (48) hours of the time at which the Seller's Facility is
restarted following an outage; (ii) trips caused or initiated by the
Company; or (iii) trips occurring during periods when the Seller has
continued to furnish capacity to the Company at the request of the
Company's Production Manager after the Seller has notified the
Company's Production Manager that the Seller's Facility is likely to
trip.
7
ATTACHMENT D
TO THE
FOURTH AMENDMENT
5. The "Forced Outage Rate" of the Seller's Facility during a contract
year is to be computed by totaling the average megawatts unavailable
for service due to forced outages or deratings on an hourly basis,
multiplying the total by 100, and dividing by the product of 8,760
hours per year times the weighted average of the Seller's firm
capacity obligation (prorated on a daily basis, if necessary).
D. SANCTIONS
1. The capacity payment is to be made on the basis of the full
availability of the Seller's Firm Capacity Obligation. When the
Seller's full Firm Capacity Obligation is not available, the Seller
shall pay the Company $0.0214 per on-peak hour for each kilowatt of
deficiency based on annual capacity payments of $504,750 and 4,718
on-peak hours in a year for the first five (5) megawatts of deficiency
and the Seller shall pay the Company $0.0339 per on-peak hour for each
kilowatt of deficiency in excess of five (5) megawatts of deficiency
based on annual capacity payments of $4 million and 4,718 on-peak
hours in a year.
2. For each contract year in which the On-peak Availability of the
Seller's Facility is less than 95 percent, unless the shortfall is due
to a catastrophic equipment failure, the Seller shall pay $7,992 to
the Company for each full percentage point of the shortfall less than
95 percent to and including 80 percent, and the Seller will pay
$11,875 to the Company for each full percentage point of the shortfall
less than 80 percent.
3. For each Plant Trip in excess of 6 per contract year, the Seller shall
pay $10,000 to the Company.
4. The Company shall have the right to offset any payment due from the
Seller under this Paragraph against any payments due to the Seller.
5. This paragraph intentionally left blank.
6. Each party may exercise whatever legal or equitable remedies may be
available to enforce the obligations of this Contract in the event
of a default by the other party.
8
ATTACHMENT D
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix D
Illustration of
On-Peak Energy Payment Rate
On-Peak Energy Payment Rate = Fuel Component + Variable O&M Component
Where:
Fuel Component = Fuel Rate (Base Charge) x Fuel Index
Variable O&M Component = Variable O&M Rate (Base Charge) x Variable O&M Index
Fuel Rate (Base Charge) = $0.038/kwh
Fuel Index = PNW (current)
-------------
PNW (base)
Variable O&M Rate
(Base Charge) = $0.0029/kwh
Variable O&M Index = GDP IPD (current)
----------------
GDP IPD (base)
On-Peak Energy Payment Rate = [$0.038/kwh x PNW (current)] + [$0.0029 x GDP IPD (current)]
------------- ----------------
PNW (base) GDP IPD (base)
Where:
PNW (current) = the average of each of the Thursday high and
low Pacific Northwest Spot 0.5% No. 2 prices
for Diesel Fuel ("PNW"), as reported by Oil
Price Information Service ("OPIS") from the
21st day of the second preceding month to the
20th day of the month energy is delivered by
PGV to HELCO, expressed in $/gallon
PNW (base) = $0.5444/gallon, the average of the Thursday
high and low Pacific Northwest Spot 0.5% No.
2 prices for Diesel Fuel, as reported by OPIS
from the 21st day of November 1995 to the
20th day of December 1995, expressed in
$/gallon
GDP IPD (current) = final GDP IPD for the 3rd Quarter of the year
preceding the year that the Variable O&M
Index will be used
GDP IPD (base) = the final GDP IPD for the third quarter of
1995 (Note: 107.9 is the "preliminary"
estimate used only for this illustration -
the "final" shall be used in the actual
calculation)
On-Peak Energy Payment Rate = [$0.038/kwh x PNW (current)] + [$0.0029 x GDP IPD [current)]
------------- -----------------
$0.5444/gal 107.9
ATTACHMENT D
TO THE
FOURTH AMENDMENT
Exhibit 1 To Appendix D
----------------------------------------------------------------------
OPIS
PACIFIC NORTHWEST
PRICE DIESEL PRICE CUSA/HECO CUSA/HECO
FOR ------------------------ WEEKLY MONTHLY
MONTH OF DATE LOW HIGH AVG PRICE AVERAGE
----------------------------------------------------------------------
DEC 1995 10/26/95 0.5800 0.5850 0.5825 0.5825
11/02/95 0.5775 0.5850 0.5813 0.5813
11/09/95 0.5900 0.5950 0.5925 0.5925
11/16/95 0.5625 0.5700 0.5663 0.5663 0.5806
JAN 1996 11/22/95 0.5550 0.5650 0.5600 0.5600
11/30/95 0.5400 0.5500 0.5450 0.5450
12/07/95 0.5350 0.5450 0.5400 0.5400
12/14/95 0.5300 0.5350 0.5325 0.5325 0.5444
2
ATTACHMENT E
TO THE
FOURTH AMENDMENT
APPENDIX F
DEFINITIONS
1. Allowed Capacity: The maximum Capacity agreed upon between Company and Seller
that may be delivered to Company at any one time by the Seller, unless Company
requests otherwise, which shall be thirty megawatts (30 MW).
2. As-Available Energy: Energy provided to Company on an unscheduled basis as it
becomes available, rather than at prearranged times and in prearranged amounts,
and which is not subject to a Legally Enforceable Obligation.
3. Avoided Energy Costs: The energy costs that the Company avoids by purchasing
Energy from Seller, as defined in and calculated in accordance with the PUC's
Standards.
4. Capacity: Electric power expressed in kilowatts or megawatts.
5. Company's Dispatch: company's sole and absolute right to control, from moment
to moment, through supervisory equipment, or otherwise, and in accordance with
good engineering practice in the electric utility industry, the rate of delivery
of Energy offered by Seller to Company.
6. Company's Fuel Adjustment Clause: The provision in the Company's rate
schedules that allows Company to pass through to its customers the Company's
costs of fuel and purchased power.
7. Company's System: The electric system owned and operated by the Company on
the Island of Hawaii consisting of power plants, transmission and distribution
lines, and related equipment for the production and delivery of electric power
to the public.
8. Company's System Load Dispatcher: The authorized representative of Company
who is responsible for carrying out Company's Dispatch.
9. Commercial Operation: For the first twenty-five (25) megawatts of Capacity,
Commercial Operation is the date (June 26, 1993) on which Seller's Facility was
deemed by Seller to be capable of reliable delivery of firm capacity. For the
additional five (5) megawatts of capacity delivered under the Fourth Amendment,
Commercial Operation is the date on which Seller's Facility is deemed by Seller
to be capable of reliable delivery of an additional five (5) megawatts of firm
capacity after the successful completion of the 100 hour Acceptance Test as
stated in the Fourth Amendment.
10. Energy: Electric power expressed in kilowatthours.
ATTACHMENT E
TO THE
FOURTH AMENDMENT
11. Energy Cost Adjustment Clause: Same as Company's Fuel Adjustment Clause.
12. Firm Capacity: Thirty megawatts (30 MW) of reliable electrical Capacity and
18,600 kvar of reactive which the Seller has agreed to make available to HELCO
from Seller's Facility at the Point of Interconnection under the Company's
Dispatch.
13. Firm Capacity Obligation: Seller's Legally Enforceable Obligation to provide
Firm Capacity as described in Section 3(a) of APPENDIX B of this contract.
14. Fourth Amendment: That certain PERFORMANCE AGREEMENT AND FOURTH AMENDMENT TO
THE PURCHASE POWER CONTRACT DATED MARCH 24, 1986 AS AMENDED dated February __,
1996, by and between Hawaii Electric Light Company, Inc. and Puna Geothermal
Venture.
15. Interconnection Facilities: The equipment and devices required to permit
Seller's power plant to operate in parallel with and deliver electric power to
Company's System, such as, but not limited to, transmission lines, transformers,
switches, and circuit breakers.
16. Legally Enforceable Obligation: A binding commitment to supply Energy or
Capacity at prearranged times and in prearranged amounts under Company's
Dispatch, with sanctions for noncompliance.
17. Minimum Purchase Rate: The minimum rate payable by Company to Seller for
on-peak Energy delivered by Seller to Company under this Contract shall be equal
to the on-peak Energy Rate calculated pursuant to Paragraph A.3.b. of APPENDIX D
on the date of PUC Approval (as defined in the Fourth Amendment).
18. Operational Date: The date(s) on which the respective generating units of
Seller's Facility are projected for planning purposes to begin parallel
operation with Company's System.
19. Point of Interconnection: The point of delivery of Energy and/or capacity
supplied by Seller to Company where Seller's Facility interconnects with
Company's System.
20. PUC's Standards: Standards for Small Power Production and Cogeneration in
the State of Hawaii, issued by the Hawaii Public Utilities Commission, Chapter
74 of Title 6, Hawaii Administrative Rules, currently in effect and as may be
amended from time to time.
2
ATTACHMENT E
TO THE
FOURTH AMENDMENT
21. "Seller's Facility" or the "Facility": All real estate, fixtures and
property owned, controlled, operated or managed by Seller in connection with, or
to facilitate, the production, generation, transmission, delivery or furnishing
of electricity by Seller to Company and required to interconnect with Company's
System, except Seller's geothermal wellfield, pipelines, and other equipment
located upstream from Seller's power plant.
3
ATTACHMENT F
TO THE
FOURTH AMENDMENT
15. Force Majeure
(a) If either party shall be wholly or partially prevented from performing
any of its obligations under this Contract by reason of an event of
force majeure reasonably beyond its exclusive control and not
attributable to its neglect, then and in any such event, such party
shall be excused from whatever performance is prevented by such event
to the extent so prevented, and such party shall not be liable for any
damage or loss resulting therefrom. Events of force majeure shall
include but not be limited to the following: accidents, action or
inaction of any governmental agency (including the inability to obtain
permits or authorization), lightning, rain, earthquake, wind,
wind-blown water, riots, fire, flood, invasion, insurrection, lava
flow or volcanic activity, tidal wave, civil commotion, the order of
any court, judge or civil authority, war, and any act of God or the
public enemy; provided that inadequate or extreme reservoir pressures,
temperature, or the presence of foreign substances therein shall not
be considered to be an event of force majeure except as provided in
Subsection (c) of this paragraph.
(b) The party claiming an event of force majeure shall give prompt written
notice of such event to the other party within 30 days of the date
such party claiming force majeure knew or should have known of the
event of force majeure. In addition, such party shall use reasonable
diligence, to the extent practicable, to limit the impact of such
event on the performance of its obligations under this Contract.
Notwithstanding the foregoing, this Subsection 15(b) shall not excuse
any payment obligation that has theretofore accrued under this
contract.
(c) Inadequate or extreme reservoir pressures, temperatures, or the
presence of foreign substances therein, shall not be an event of force
majeure unless the Seller has taken reasonable actions to avoid or
mitigate any adverse impact on the Seller's ability to meet its
obligations under this Contract.
EXHIBIT A
TO THE
PERFORMANCE AGREEMENT
DESCRIPTION OF ENHANCEMENTS
The enhancements will increase the site electrical generating output by
increasing the flow to the three existing injection ▇▇▇▇▇. This will be
accomplished mainly by the installation of three injection pumps ("injection
pumps"). These injection pumps will increase injection pressure, thus increasing
system flow and electric generation output. In addition, it is contemplated that
condensate flows will be redirected from 4" and 6" lines currently in use to an
existing 14" line. This change is intended to enhance process efficiency.
EXHIBIT B
TO THE
PERFORMANCE AGREEMENT
PROJECT SCHEDULE
The timetable for completion of the project activities are expressed in weeks
from the date of the later of PUC Approval or Bank's Consent of the Performance
Agreement. The first number is the week in which the activity is expected to
begin and the second number is the week in which the activity is expected to be
completed.
Description of Activity Timetable
----------------------- ------------------
Engineering Week 0 to Week 12
Procurement Week 0 to Week 21
Installation Week 10 to Week 26
Power Output Week 26
Major Milestone
PGV expects to have its injection pumps on site no later than 23 weeks
after the later of PUC Approval or Bank's Consent of the Performance Agreement.
EXHIBIT C
TO THE
PERFORMANCE AGREEMENT
, 1996
____________
Hawaii Electric Light
Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Consent To Performance Agreement
Gentlemen:
We refer to that certain Performance Agreement And Fourth Amendment To
The Purchase Power Contract Dated March 24, 1986 as Amended ("Performance
Agreement"), dated as of ______________________, 1996, by and between Hawaii
Electric Light Company, Inc. ("HELCO"), incorporated under the laws of the
Republic of Hawaii, and Puna Geothermal Venture ("PGV"), a Hawaii general
partnership. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Performance Agreement and, if none, then as set
forth in the Confirmation Agreement (as defined below).
CREDIT SUISSE, a bank organized and existing under the laws of
Switzerland, as Agent and Collateral Agent for the benefit of its own account
and such other financial institutions as may participate in the funding and
other risks associated with the Loan as defined below (hereinafter collectively
referred to as "Credit Suisse"), the Lenders (as defined in the Confirmation
Agreement) and PGV have entered into (i) a Credit Agreement-Construction Loan
and Term Loan Facility, and (ii) an Assignment and Security Agreement
("Assignment"), pursuant to which Credit Suisse has agreed to make a loan
("Loan") to PGV for the purpose of constructing the PGV facility.
Pursuant to the Assignment, PGV has granted to Credit Suisse a
security interest in the HELCO-PGV Agreements, for the benefit of the Lenders,
as security for the payment of all sums to become due and payable to Credit
Suisse and the Lenders.
EXHIBIT C
TO THE
PERFORMANCE AGREEMENT
Hawaii Electric Light
Company, Inc.
Page 2
The Assignment requires PGV to obtain Credit Suisse's written consent
prior to amending, canceling or terminating the HELCO-PGV Agreements. Pursuant
to the Confirmation of Purchase Power Contract and Agreement ("Confirmation
Agreement"), dated June 29, 1990, by and between HELCO, PGV and credit Suisse,
HELCO is also required to obtain the written consent of Credit Suisse prior to
amending, canceling or terminating the HELCO-PGV Agreements.
Under the Performance Agreement, PGV has agreed to provide, and HELCO
has agreed to accept and pay for, an additional five (5) megawatts of firm
capacity. In order to provide the additional firm capacity, the Performance
Agreement requires amending certain of the HELCO-PGV Agreements, which in turn,
requires the consent of Credit Suisse and Banque Nationale de Paris, a bank
organized and existing under the laws of the Republic of France ("BNP").
Consent
Credit Suisse and BNP have each reviewed the Performance Agreement and
each hereby consent to PGV's and HELCO's execution of the Performance Agreement
and the performance of the terms, conditions and obligations of the parties
thereunder.
This Consent shall be subject to, governed by, construed and enforced
in accordance with the laws of the State of Hawaii, without regard to principles
of choice of law.
The individuals executing this Consent represent and warrant that they
are duly authorized to do so on behalf of Credit Suisse and BNP, as the case
maybe, and that this Consent, once executed, shall be fully binding upon Credit
Suisse and BNP, as the case maybe, and their respective
EXHIBIT C
TO THE
PERFORMANCE AGREEMENT
Hawaii Electric Light
Company, Inc.
Page 3
successors, agents, representatives, administrators, trustees and assigns.
Consented to and agreed
to as the date first
above written:
CREDIT SUISSE
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
By
------------------------------
Name:
------------------------------
Title:
------------------------------
BANQUE NATIONALE de PARIS
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT C
TO THE
PERFORMANCE AGREEMENT
STATE OF _____________ )
) SS.
COUNTY OF ____________ )
On this _________ day of ___________________, 199_, before me appeared
_________________________________________ and ________________________________
____________________________, to me personally known, who, being by me duly
sworn, did say that they are ____________________________ and
________________________, respectively, of CREDIT SUISSE, a bank organized and
existing under the laws of Switzerland, as Agent and Collateral Agent; that the
seal affixed to the foregoing instrument is the corporate seal of said bank;
that said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors; and said _________________________ and
________________________________ acknowledged said instrument to be the free act
and deed of said bank.
__________________________________________
Notary Public, State of __________________
My Commission expires: ___________________
EXHIBIT C
TO THE
PERFORMANCE AGREEMENT
STATE OF _____________ )
) SS.
COUNTY OF ____________ )
On this _________ day of ____________________, 199_, before me appeared
____________________________________________ and
_______________________________________________, to me personally known, who,
being by me duly sworn, did say that they are ________________________ and
______________________, respectively, of BANQUE NATIONALE de PARIS, a bank
organized and existing under the laws of the Republic of France; that the seal
affixed to the foregoing instrument is the corporate seal of said bank; that
said instrument was signed and sealed in behalf of said corporation by authority
of its Board of Directors; and said __________________________ and
________________________________ acknowledged said instrument to be the free act
and deed of said bank.
__________________________________________
Notary Public, State of __________________
My Commission expires: ___________________