Exhibit 10.3.45
ATTACHMENT II
PAGE 1
FIRM CAPACITY AMENDMENT
TO
PURCHASE POWER CONTRACT DATED MARCH 24, 1986
This Firm Capacity Amendment is made this 28th day of July, 1989, by and
between Hawaii Electric Light Company, Inc. (hereinafter called the Company),
and Puna Geothermal Venture (hereinafter called the Seller).
WHEREAS, the Company has entered into a Purchase Power Contract for
Unscheduled Energy Made Available from a Qualifying Facility dated March 24,
1986, with Thermal Power Company (hereinafter called the Unscheduled Energy
Contract);
WHEREAS, the Hawaii Public Utilities Commission (hereinafter called the
PUC) authorized the Company to include the purchased power costs of the
Unscheduled Energy Contract in its fuel clause by its Decision and Order No.
8692 dated March 25, 1986, in Docket No. 5525;
WHEREAS, Thermal Power assigned the Unscheduled Energy Contract to AMOR
VIII with the Company's written consent on July 19, 1988;
WHEREAS, AMOR VIII desires to assign the Unscheduled Energy Contract to
Puna Geothermal Ventures;
WHEREAS, the Company hereby gives its consent to the assignment of the
Unscheduled Energy Contract from AMOR VIII to Puna Geothermal Ventures;
WHEREAS, the Seller's facility will be 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;
WHEREAS, the Seller is, and will continue to be throughout the term of this
Contract, a "non-fossil fuel producer" within the meaning of Section 269-27.2,
Hawaii Revised Statutes;
WHEREAS, the Seller is not, and will continue not to be throughout the term
of this Contract, an "Affiliated Interest" within the meaning of Section
269-19.5, Hawaii Revised Statues;
WHEREAS, the Seller is willing to make available to the Company firm
capacity under a legally enforceable obligation, including Company dispatch and
sanctions for non-compliance;
7/24/89
ATTACHMENT II
PAGE 2
WHEREAS, the Company is willing to purchase the firm capacity made
available by the Seller;
NOW, THEREFORE, in consideration of the premises and the respective
promises herein, the Company and the Seller hereby agree to amend the
Unscheduled Energy Contract as follows:
1. Appendix A, Description Of Seller's Generation And Conversion
Facilities, of the Unscheduled Energy Contract is amended in its entirety as
reflected by Attachment A, which is attached hereto and made a part hereof.
2. Appendix B, Facilities Owned By The Seller, of the Unscheduled Energy
Contract is amended in its entirety as reflected by Attachment B, which is
attached hereto and made a part hereof.
3. Appendix C, Interconnection Facilities Owned By The Company, of the
Unscheduled Energy Contract is amended in its entirety as reflected by
Attachment C, which is attached hereto and made a part hereof.
4. Appendix D, Energy Purchase By Company, of the Unscheduled Energy
Contract is amended in its entirety as reflected by Attachment D, which is
attached hereto and made a part hereof.
5. Section 15. Force Majeure of the Unscheduled Energy Contract is amended
in its entirety as reflected by Attachment E, which is attached hereto and made
a part hereof.
6. 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 relationship not to be an
Affiliated Interest. The Company shall have the right to terminate the Contract,
including this Firm Capacity Amendment, if the PUC prohibits the Company from
recovering any payments made to the Seller under this Contract due to the effect
of Section 269-19.5, Hawaii Revised Statutes, relating to affiliated interests.
-2-
ATTACHMENT II
PAGE 3
7. Effective Date. This Firm Capacity Amendment becomes effective when the
PUC authorizes, by appropriate decision and order satisfactory to the Seller and
the Company, the Company's firm capacity payments to the Seller hereunder to be
included in the Company's Firm Capacity Surcharge pursuant to Section 269-27.2,
Hawaii Revised Statutes, or in the Company's base rates pursuant to Section
269-16(b), Hawaii Revised Statues, whichever occurs first.
IN WITNESS WHEREOF, the Company and the Seller have executed this Firm
Capacity Amendment as of the day and year first above written.
HAWAII ELECTRIC LIGHT COMPANY, INC. (the Company)
By /s/ Xxxxxx X. Oss 7/27/89
--------------------------------- Date
Xxxxxx X. Oss
Its President
By /s/ Xxxxxx X. Xxxxxxx 7-28-89
--------------------------------- Date
Xxxxxx X. Xxxxxxx
Its Vice President
AMOR VIII (Assignor)
By /s/ Illegible 7-26-89
--------------------------------- Date
PUNA GEOTHERMAL VENTURES (the Assignee/Seller)
By /s/ Illegible 7-26-89
--------------------------------- Date
Hezy Ram
Its President
By
--------------------------------------------
Date
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ATTACHMENT II
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ATTACHMENT A
FIRM CAPACITY AMENDMENT
PAGE 1 OF 2
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): To be provided prior to
parallel operation
(c) Company billing account number: 06 686 520 01
2. Owner*: Puna Geothermal Venture
3. Operator**: Puna Geothermal Venture
4. Name of person to whom payments are to be made:
(a) Mailing address: Puna Geothermal Venture
000 Xxxxxx Xxxxxx, Xxxxx 0000X
Xxxx, Xxxxxx 00000
(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:*** Total 25 MW
----------
* If the Seller is not the owner of the facility, attach a copy of the
agreement between the Seller and the facility's owner which establishes the
Seller's right to operate the facility and sell power to the Company.
** 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.
*** The "Design Capacity" may exceed 25 MW to the extent necessary for Seller
to furnish up to 25 MW of "Allowed Capacity" as defined in Appendix F,
provided that the "Allowed Capacity" of this Contract shall be the lower of
(i) 25 MW or (ii) the installed and operating capacity of the Seller's
facility interconnected with the Company's system on December 31, 1995.
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ATTACHMENT A
FIRM CAPACITY AMENDMENT
PAGE 2 OF 2
(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"): July 1, 1990
7. Date Firm Capacity Begins: July 1, 1990
8. Insurance carrier: To be provided prior to parallel operation as provided
in Section 12 of this Contract
9. If the land on which the facilities are located is not owned by the
facility's owner, attach 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.
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ATTACHMENT B
FIRM CAPACITY AMENDMENT
PAGE 1 OF 6
APPENDIX B
FACILITIES OWNED BY THE SELLER
1. Seller's Facility
(a) A preliminary single-line diagram of the Seller's Facility at the time
the Contract is signed, shall be attached to this Contract and made a
part hereof. The single-line diagram and the Point of Interconnection
of the Seller's Facility to the Company's System identified thereon
are preliminary and subject to change by the parties. Prior to
construction of Seller's Facility, a final single-line diagram, relay
list, and trip scheme shall be prepared and, subject to review and
acceptance thereof by both parties, signed and attached to this
Appendix B and made a part hereof. Such single-line diagram shall
expressly identify 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 mountings,
switchboard meter test buses, meter panels and similar devices
required for service connections and meter installations on the
Seller's premises.
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ATTACHMENT B
FIRM CAPACITY AMENDMENT
PAGE 2 OF 6
(d) Seller shall install transducers, metering, AC and DC sources,
telephone lines, and provide interconnecting wiring for supervisory
and communications equipment.
(e) The Company shall review and accept the design drawings and Xxxx of
Material for the Seller's electrical equipment required to
interconnect with 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
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ATTACHMENT B
FIRM CAPACITY AMENDMENT
PAGE 3 OF 6
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 the Company. Typical power factor
requirements will normally operate in a range of 0.85 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.
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ATTACHMENT B
FIRM CAPACITY AMENDMENT
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(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 Guarantee. The Seller shall furnish the Company 25,000
kw of capacity and 15,000 kvar of reactive from December 31, 1990
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 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
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ATTACHMENT B
FIRM CAPACITY AMENDMENT
PAGE 5 OF 6
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 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.
(f) Acceptance Tests. The Company shall conduct acceptance tests to determine
when Firm Capacity Payments should begin or be adjusted in accordance with
Appendix D, and to determine the adjustment factor to be used in the
calculation of energy payments to reflect transformer losses between the
metering facilities and the Company's transmission lines.
(i) Firm Capacity payments, pursuant to Paragraph 3(d) of Appendix B and
Xxxxxxxxx X.0. of Appendix D, shall begin when acceptance tests
conducted by the Company indicate that the Seller has delivered 100%
of the Seller's Firm Capacity Obligation for 100 consecutive hours,
beginning at a time designated in advance by the Seller.
(ii) The Transformer Loss Adjustment Factor, pursuant to Paragraph A.3. of
Appendix D, shall be determined by acceptance tests of the specific
transformer's losses conducted by the Company over a 100 consecutive
hour period, beginning at a time designated in advance by the Seller.
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ATTACHMENT B
FIRM CAPACITY AMENDMENT
PAGE 6 OF 6
4. Benchmark Progress Requirements
Each month prior to the date Commercial Operation of the Seller's facility
begins, the Seller shall submit a written report to the Company by the 15th
day of the month to advise the Company of the status of the Seller's
project as of the beginning of that month, including but not limited to,
any revisions of the date of installation, the date of operation in
parallel with the Company's system, and the date of Commercial Operation of
the Seller's facility.
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ATTACHMENT C
FIRM CAPACITY AMENDMENT
PAGE 1 OF 2
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 Pohoiki.
(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 liens,
required to be installed in order to accept Energy from Seller's Facility
shall be determined by separate agreement or 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.
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.
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ATTACHMENT C
FIRM CAPACITY AMENDMENT
PAGE 2 OF 2
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.
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ATTACHMENT D
FIRM CAPACITY AMENDMENT
PAGE 1 OF 5
APPENDIX D
POWER PURCHASES BY COMPANY
A. ENERGY PURCHASES BY THE COMPANY
1. Subject to the other provisions of this Contract, including but not
limited to Sections 6 and 7, the Company shall accept and pay for
As-Available 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 Section A.3. of this
Appendix D, or (b) the Minimum Purchase Rate set forth in Section A.4.
of this Appendix D; provided, however, that the rate of delivery of
such Energy shall not exceed the Allowed Capacity as set forth in
Appendix A at any given time.
2. Energy furnished by Seller to the Company shall be metered by a
time-of-day meter. 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. The respective on-peak and off-peak energy rates for As-Available
Energy 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, as adjusted by the Transformer Loss Adjustment Factor
that is to be determined pursuant to Paragraph 3(f)(ii) of Appendix B.
4. The Minimum Purchase Rate in this Contract shall apply to all
deliveries of As-Available Energy made by Seller to Company during the
term of this Contract and to all deliveries of Energy under a Legally
Enforceable Obligation made by Seller to Company.
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ATTACHMENT D
FIRM CAPACITY AMENDMENT
PAGE 2 OF 5
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. Company shall accept and pay for Emergency Energy (as defined in
Appendix F) generated by Seller's Facility and made available by
Seller to Company, as follows: the respective on-peak and off-peak
energy rates for Emergency Energy shall be three hundred percent
(300%) of Company's 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
quarter in which such Energy is delivered.
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 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 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 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 $4,000,000 per year beginning on
July l, 1990, or on the Commercial Operation date, whichever occurs
first; provided that
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ATTACHMENT D
FIRM CAPACITY AMENDMENT
PAGE 3 OF 5
the Seller has satisfied the Acceptance Test requirement of Paragraph
3(f)(i) of Appendix B; and subject to the sanction provision of
Paragraph D.l. of Appendix D.
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.
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 facility 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.
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ATTACHMENT D
FIRM CAPACITY AMENDMENT
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2. The "On-peak Availability" of the Seller's Facility (in percent) is to
be computed by adding the total Energy Under Company's Dispatch
Subject to a legally Enforceable Obligation available from the
Seller's unit during the contract year, multiplying the total by 100,
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).
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.
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).
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ATTACHMENT D
FIRM CAPACITY AMENDMENT
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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 $0.0339 per on-peak hour for each kilowatt of
deficiency based on annual capacity payments of $4 million and 4,718
on-peak hours in a year. During the period from July 1, 1990 to
December 31, 1990, the sanction provided for in this paragraph shall
not exceed the capacity payments provided for in Section B.2. of this
Appendix D on a monthly basis.
2. For each contract year in which the On-peak Availability of the
Seller's Facility is less than 95 percent, the Seller will pay $10,000
to the Company for each full percentage point of the shortfall unless
the shortfall is due to a catastrophic equipment failure.
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. If the Seller does not deliver 12,500 kw of Firm Capacity as provided
by Paragraph 3 of Appendix B, by December 31, 1990, the Seller shall
pay the Company $0.0339 per on-peak hour for each kilowatt deficiency
until the Seller satisfies the Acceptance Test provided in Paragraph
3(f)(i) for 12,500 kw of Firm Capacity; if the Seller does not deliver
25,000 kw of Firm Capacity as provided by Paragraph 3 of Appendix B,
by March 1, 1991, the Seller shall pay the Company $0.0339 per on-peak
hour for each kilowatt deficiency until the Seller satisfies the
Acceptance Test provided in Paragraph 3(f)(i) for 25,000 kw of Firm
Capacity.
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.
PAGE 19
ATTACHMENT E
FIRM CAPACITY AMENDMENT
PAGE 1 OF 1
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. 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.
(d) The parties agree that this Force Majeure provision is intended to
provide for reasonable time, not to exceed 12 months, to complete
construction after the Geothermal Resource Permit is issued by the
County of Hawaii and the Authority to Construct is issued by the State
Department of Health.
CERTIFICATE OF SERVICE
I hereby certify I served copies of the foregoing Application, together
with this Certificate of Service, by delivery or mailing a copy by United States
mail, postage prepaid to the following and at the following address:
Xxxxxxx X. Totto, Esq.
Executive Director
Division of Consumer Advocacy
Department of Commerce & Consumer Affairs
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
DATED: Honolulu, Hawaii, July 28, 1989
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
