PART 1

EPC CONTRACTS FOR POWER

PROJECTS

A PRESENTATION FOR PERTAMINA

GEOTHERMAL ENERGY

David Platt
Type of Contract
• Power almost invariably uses “lump sum turnkey”
Why?
– Nature of the technology – no processes to match to
equipment (as for refineries). Hence contractors can give full
support
– Tendency to use project finance – banks hate risk and insist
on maximum risk transfer to contractor
FORM OF CONTRACT
• Industry standard forms -
– FIDIC Silver Book
– ENAA Model Form
– Institute of Chemical Engineers (IChemE) Green Book
– and many others
• Weakness
Typically a power project is based in a power purchase
agreement which will have (possibly extensive) requirements
on construction. These must be passed through and it is
likely to be as difficult to amend a standard form as to draft a
“purpose built” contract.
A LESSON LEARNED
How not to do it
•A large utility’s first international IPP
•The business development team worked on the PPA and other
documents
•But the construction projects department worked on the EPC
Contract
•Each department hired separate legal advisers
•The teams did not communicate
•Technical changes driven from the PPA negotiations did not get
passed to EPC Team
Result:
•The technical specifications of the EPC Contract did not
match the PPA
A LESSON LEARNED
How not to do it (2)
•But it gets worse
•Lenders reviewed a mismatched set of contracts
•Lenders’ engineer and lawyers chiefly responsible for redraft
•Result increased price, (massively) increased legal fees
adversarial negotiation, pressure from lenders on sponsors
(“You got the project into this mess so you need to take more
risk”)
•Banks are not project managers!

This really happened

FORM OF CONTRACT
What not to do
•Reliance on “own” standard forms
•Particular requirements of PPA (or other features of the Project)
then tend to get incorporated not through amending the contract
conditions but specifications, side documents, minutes of
meeting etc. These generally do not override the conditions of
contract.
•Result – inconsistency, dispute, expense
PARTIES
Employer
Contractor
•likely to be a joint venture (an equipment manufacturer and a
local civil contractor?)
•form of joint venture varies – consortium (usually non-
integrated) more common than a joint venture company
•Employer does not care as to form of Contractors organisation
provided:
– joint and several liability of Contractor parties
– backed by parent company guarantees from ultimate
holding company/companies
INFORMATION AND UNFORESEEN
CONDITIONS
What should Owner provide
•(Thermal projects) – fuel specifications
•Site information
– for reliance?
– or for information only?
• No hard and fast rule – tends to depend on quality of
information and timelines
• More usual to pass contractor what site data there is (for
information), give him the opportunity to conduct some
form of site due diligence but leave the risk with him
CONTRACT DOCUMENTATION

One of the major sources of work for construction litigation

lawyers is discrepancy in documents
Setting priorities helps (usually Form of Agreement, Special
Particular Conditions, General Conditions, Drawings/BoQs,
minutes and correspondence)
However this will not remove the risk
CONTRACT DOCUMENTATION
Best approach is to get it right by:
•minimising number of documents with contractual force (no
minutes of meeting and exchange of correspondence – if these
amend the contract then make the amendments in the relevant
document)
•ensuring that Owner documents always prevail over contractor
documents (particularly technical documents)
•ensuring that lawyers, project managers and engineers talk to
each other
•ensuring single point responsibility – one person responsible for
pulling the contract together
CHANGE ORDERS
Risks of Changes / Variations
•Contractor abuses process to get compensation for normal
design development
•Owner commits to changes without knowing how much it will
cost
•Owner goes too far and risks invalidating the Contract
CHANGES
Contract must make clear what cannot constitute a variation:
•usual design development/approval process
•interpretation of contract documents
Contract must control the process of ordering variations.
Mechanism include:
•requirement for Contractor to give quotation of (a) cost and (b)
schedule effect of desired variation before Owner confirms the
order
•requirement for pricing information to be attached to contract or
provided by Contractor to provide a sensible basis or valuation if
quotation not acceptable
CHANGES
Never use the variation mechanism to:
•remove work from the Contractor’s scope to give it to someone
else
•order something really material – say 15% of contract price –
there is a risk that this will invalidate the contract.
If you want to amend the contract – amend it through proper
procedure.
TITLE AND RISK
Title in materials should pass to Owner on earliest of
•loading for shipment (imported equipment)
•arrival on Site
•payment
However risk in the material stays with the Contractor until
completion
Contractor must be responsible for customs clearance even if,
for tax reasons, the Owner is the importer of record
COMMISSIONING AND COMPLETION
• Completion of plant and
synchronisation to grid
• Commissioning and testing
• Performance Test (measuring
capacity, heat rate and
sometimes other performance
targets)
• Reliability Run (30 day test)
• Once achieved “practical
completion”, provisional
acceptance
Payment milestone
Possibly (unlikely) some liquidated
damages for delay if failure
Performance liquidated damages if
targets not achieved
Or rejection/termination of contract if a
minimum level not achieved
Release of all (or part of Performance
Bond)
Risk passes to Owner
Relief from liability to pay delay
liquidated damages
Start of Defects Liability Period
COMMISSIONING AND COMPLETION
• Punch List items Correction of these
Release of moneys withheld
• Defects Liability Period / Correction of Defects
Warranty Period
• Final Acceptance End of Defects Liability Period, release
of remaining Performance Bond /
retention bond
• Extended warranty period (on
parts of equipment)
• Latent Defects Period
SECURITY FOR PERFORMANCE
Three key instruments:
•Parent Company Guarantee – to put the credit of the
Contractor’s organisation behind the Contract
•Performance Bond – to provide cash cover for certain of the
Contractor’s liabilities (typically liquidated damages)
•Retention – to provide security for the Contractor’s obligations
following completion (can be cash or, more usually, a bond)
TYPICAL AMOUNTS
• Performance Bond – 10% of contract price. However on
project-financed projects likely to be significantly more –
typically covers liability for liquidated damages so can be as
much as 20%+ of contract price
• Retention – typically 5 – 10% from each payment, half
released on completion and half at the end of the Defects
Liability Period
FINANCING AND TAX ISSUES
Project Financing for Owner:
•Greater risk allocation to the Contract
•Higher levels of liquidated damages and bonding
•Requirement to cooperate with lenders and enter into Direct
Agreement
Contractor’s Financing
•Contractor may wish to secure working capital financing by
securing its receivables under the Contract in favour of its
lenders. Should have no impact on Owner and should be
permitted
FINANCING AND TAX ISSUES
Tax: To mitigate tax costs contracts in Indonesia (and
elsewhere) often split into onshore and offshore contracts
This saves cost for the Owner but can increase risk (if
separate legal entitles are contractor under the onshore
and offshore contracts and use each other’s failure as the
basis for claims)
Use of Coordination Agreement to link this contracts and
prevent such claims
 PART 2

EPC CONTRACTS ADMINISTRATION –

AVOIDING DISPUTES

A PRESENTATION FOR PERTAMINA

GEOTHERMAL ENERGY

Nicholas Brown
AVOIDING DISPUTES

Si vis pacem, para bellum

“If you want peace, prepare for war.”

- Renatus, P. F. V. R., 400-600 AD. De Re Militari.

TOP TEN FACTORS LEADING TO DISPUTES

1. Delays and disruptions to construction

2. Delays to payment
3. Variations
4. Deviations
5. Poor / inaccurate contract documentation
6. Unsatisfactory / poor quality of works
7. Unforeseen problems e.g. site / ground conditions
8. Contractual ambiguities
9. Environmental and behavioral factors (incl. labour)
10. Fluctuations in costs
HOW TO AVOID DISPUTES

1. Pre-Contract
– 1.1 Letters of Intent
– 1.2 Representations
• 1.2.1 Drafting
• 1.2.2 Entire Agreement Clauses
• 1.2.3 Battle of the Forms

2. Contract Administration
– 2.1 Notices
– 2.2 Records
– 2.3 Managing Key Project Risks
1.1 PRE-CONTRACT: LETTERS OF INTENT
• Risk Areas:

– Uncertainty as to whether they constitute a contract

– Uncertainty of scope of works
– Uncertainty of payment rights
– Uncertainty of obligations
– Uncertainty of standards
1.1 PRE-CONTRACT: LETTERS OF INTENT
Do’s Do Not’s
1. Clearly identify scope of works 1. Use LOI as substitute for contract
2. Set out matters to be resolved for main 2. Have LOI which incorporates all the
contract terms of the contract
3. Make clear if LOI only intended to give 3. Forget to send LOI for signature & return
rise to interim contract
4. Set Limit on entitlement to be paid 4. Forget to formalise the contract
5. Mention VAT 5. Go beyond terms of LOI
6. Exclude extra-contractual liability
7. Deal with dispute resolution
8. Identify instruction giver
9. Make the future contract apply
retrospectively and expire accrued rights
10. Issue it in the correct name!
1.1 PRE-CONTRACT: LETTERS OF INTENT

• LOI is always the poor relation of a proper contract

• If you must use one, monitor it, manage it, and don’t
exceed its boundaries

• Replace it quickly with the proper contract.

1.2 PRE-CONTRACT: REPRESENTATIONS
1.2.1 Drafting
– Drafting
– Clear and careful drafting
– Define terms

1.2.2 Entire Agreement Clauses

– Ensure they are robust
– Recongise their limits

1.2.3 ‘Battle of the Forms’

– Restate the terms in the Contract
2.1 CONTRACT ADMINISTRATION: NOTICES
2.1 Notices

• Require notice as a Condition Precedent by means of explicit

drafting

– Note the words “if”, “provided that” and “shall” in this

clause
2.1 CONTRACT ADMINISTRATION: NOTICES

1. Who should the Notice go to?

2. What information should the notice contain?
3. What form should the notice be in?
4. What method of service should be adopted?
5. Where should the notice go to?
2.2 CONTRACT ADMINISTRATION: RECORDS

• Records enable maintenance of the commercial bargain

• Developers often lose the historical contest because

their records are lacking

• Do not rely solely on the contractor to actually collect the

records that do suit his claims
2.2 CONTRACT ADMINISTRATION: RECORDS

The Golden Triangle

Regularly Updated As-Built Schedule

“Bible” of official progress reports, ‘Event’ specific allocation “Dayworks”

meeting minutes, notices and claim sheets, detailed substantiation of
letters valuations
2.3 CONTRACT ADMINISTRATION:
MANAGING KEY PROJECT RISKS
• Encourage regular consultations with community team
– Familiarity with notice provisions
• When difficulties arise
– Early evaluation of parties’ positions
– Agree commercial objective and appropriate strategy
– Identify the best bargaining position
– Correspondence review
• Are there specific procedures under the Contract to
manage risk?

33
2.3 CONTRACT ADMINISTRATION:
PRACTICAL TIPS
• Project team – be familiar with contract and don’t be scared to
issue a Notice

• Maintain accurate contemporary records

– Progress reports, Correspondences and notices, Regularly

updated schedules, Photographs of the progress of works, Site
diaries, labour records and invoices

• Comply with requirements on content and service

• Proactively respond to Contractor’s submittals at least to seek for

this information
 PART 3

PPA BASICS

A PRESENTATION FOR PERTAMINA

GEOTHERMAL ENERGY

David Platt
Agenda
1. Nature and purpose of PPA
2. Geothermal projects – alternatives to PPAs
3. Key risk issues
Nature and Purpose of PPA
Background
•Electricity cannot be stored
•Need for massive capital investment in an energy project
•Need to leverage that investment with debt so as to allow
a reasonable return to equity investors and a low power
cost for consumers
•Need to create of a long term stable cashflow to service
the debt
The Classic Thermal PPA
• IPP agrees to construct and operate a power station and
sell all electricity generated to the utility
• Term: Construction plus 20 – 25 years
• Payment: IPP cannot take “market risk” so is paid (usually)
through a two part tariff
– First part: capacity payment covering fixed costs (debt,
equity, fixed O&M costs). Paid on basis of power
station’s availability to generate
– Second part: energy payment covering variable costs
(fuel and parts). Paid on basis of electricity delivered
Variants for renewable energy
• Greater interplay between statute and contract – many
developed jurisdictions have specific statutory regime for
renewable energy so very short form PPAs. Indonesia not
such a jurisdiction
• Renewable energy either has zero or next to zero variable
cost and/or benefits from statutory or regulatory obligations
on the utility to purchase this power
• So simpler payment tariff – an all energy payment backed
by an obligation to take (or take or pay for) all electricity
generated
Geothermal Projects
• Geothermal is “different” because there are two distinct
projects:
– the geothermal field; and
– the power plant,
and the skills for developing constructing and operating
these projects may be different
• So there are a variety of structures used for exploiting
geothermal energy
Geothermal Structures
Field Owner IPP Developer

Field/IPP Developer
Geothermal Power PPA Utility
Field Plant
Advantages
• Simplicity
Disadvantages
• Skills of developing geothermal field and power plant
not necessarily the same
Geothermal Structures

Field Owner Steam Sale IPP Developer

Geothermal Power Plant PPA Utility
Agreement
Field

Advantages
• Separates risks and allocates them to parties best able
to bear them
Disadvantages
• IPP Developer is in the middle taking risks on both
sides (geothermal plus utility)
Geothermal Structures

Field Owner PPA Utility

Geothermal Field

Energy IPP Developer

Conversion
Power Plant
Agreement
Geothermal Structure
This is the most complex structure. Essentially it treats the
IPP developer as a subcontractor of the field owner.
Advantages: by de-risking the most capital intensive part of
the project you enable it to leverage highly and thus reduce its
ongoing cost.
Disadvantages: more complex, more risk to Field Owner
Key Risk Issues
• Geothermal Field Risk
• Land Risk
• Market Risk
• Pricing Risk
• Force Majeure
• Termination
Key Risk
• Geothermal Field Risk
– is the field sufficient to generate enough power?
– how long to develop – what does that do to tariffs?
– what if quantity/pressure drops?
• Land Risk
– buying the land
– Rights for transmission line
Key Risk
• Market Risk
– must be shielded from fluctuations in Utility’s
supply/demand balance
– capacity payment or “take or pay”
– if we can deliver but Utility does not take – Utility must pay
• Pricing Risk
– what is debt currency and is project shielded from
exchange rate movements?
– what price indices best reflect changes in project’s costs
(salaries, parts, services etc.)? Are these reflected in PPA
tariff
Key Risk
• Force Majeure
– Categories of force majeure – “political” vs “natural” (link
to insurance
– Treatment of force majeure (and different catergories
thereof)
 relief from obligation?
 extension of timelines
 Financial compensation
– Treatment of force majeure affecting the Utility
Key Risk
• Termination
– Causes of termination
– Compensation on termination
 project’s breach
 utility’s breach
 “political” force majeure
 “natural” force majeure
 PART 4

PLN’S GEOTHERMAL PPA

A PRESENTATION FOR PERTAMINA

GEOTHERMAL ENERGY
David Platt
AGENDA

• Introductions
• Development Phase
• Construction Phase
• Operation Phase
• Tariff and Payment
• Force Majeure and Termination
INTRODUCTION

Many PLN PPAs in existence.

They tend to vary in terms of detail – the big, foreign financed
PPAs are longer, more comprehensive and more complicated
than the smaller PPAs intended to be financed domestically.
But commercially there is not a huge difference – the real
differences between the foreign financed and domestic projects
is the nature and extent of credit support for PLN’s obligations
(which is obviously outside the PPAs).
This PPA is clearly a “PLN PPA” – there are some changes
(development period and tariff) to reflect the geothermal asset
but it is consistent with most PLN PPAs.
INTRODUCTION

PLN’s form of PPAs do have some difficult points but in terms of

overall risk allocation they compare relatively favourably to other
versions in South East Asia.
It has also been financed multiple times – including by JBIC and
KEXIM.
INTRODUCTION

Perhaps the most important issue on any PPA is actually not

within the PPA but is the question “what credit support is there
for the utility’s obligations?”
Indonesia has a number of approaches from a full guarantee
from IIGF and Ministry of Finance (PPP projects only) to nothing
(most smaller projects and some of the big ones – Jawa 7).
Geothermal projects benefit from an Economic Viability
Guarantee an undertaking from the Government to the Project
Company that it will put PLN in a position to comply with its
“social obligations under the PLN law”.
INTRODUCTION

The form of Economic Viability Guarantee is not certain. The

“problem” is that whilst it is clear to commentators that PLN’s
social obligation covers the ongoing purchase of electricity it is
not clear that it extends to buying the plant on termination.
Some guarantees expressly include the termination payments
but reportedly the Government has been pushing back and
trying to exclude this.
THE DEVELOPMENT PHASE

“Usual” (i.e. thermal, wind, hydro or solar) PPA:

• Sign PPA
• 6 – 9 months to:
– obtain consents
– achieve financial close
– start construction
• If project company fails to do this:
– termination of PPA
– PLN can call first stage performance security
THE DEVELOPMENT PHASE

This risk is usual and acceptable for non-geothermal PPAs

because:
• time period and obligations relatively limited
• financial exposure limited (consultants’ fees, management
time, sometimes land costs)
But in geothermal projects:
• need to carry out the drilling programme to establish viability
and plant capacity
• long time
• Huge financial commitment – millions of dollars
THE DEVELOPMENT PHASE

Particular risks of the PPA

• There is a ‘hard’ obligation to achieve a capacity of 50MW – if
this can’t be done, termination of the PPA
• If the results of the drilling indicate that the capital cost will be
higher than budgeted, no right to any adjustment of tariff
THE DEVELOPMENT PHASE

Logically:
• no developer will commit to the cost of a drilling programme
without having a PPA in place first
• but the utility cannot commit to an uncertain level of power at
whatever price the developer eventually incurs
So this arrangement is probably inevitable but:
• the “hard” 50MW obligation makes the exploration of any
small project particularly risky
THE DEVELOPMENT PERIOD

Timing
• Minimum Exploration Spend Deadline – 2 years from Signing
by which time Project Company must have spent USD20
million on exploration
• 4 year deadline to satisfy (normal conditions precedent,
complete “ Exploration Activities and issue:
– Notice of Resource Confirmation (“NORC”) confirming
capacity
– Notice of Investment Decision (“NOID”) confirming the
decision to proceed (in practice likely to be linked to
financial close).
THE DEVELOPMENT PERIOD

Other issues (not specific to geothermal)

•Size of performance security needs to be considered
•Apparent inconsistency in document – unclear when
Performance Security Stage 1 is released
•No compensation from PLN if Effective Date delayed by
reasons attributable to PLN
THE DEVELOPMENT PERIOD

Mitigation
• Risk sharing with partners and exploration contractor
• Careful technical monitoring – important to cut losses early if
50 MW will not be achieved
THE CONSTRUCTION PERIOD
• 30 months from Effective Date but protection for Project
Company to specify a different period in the NOID
• If cannot achieve Commercial Operation Date by Required
Commercial Operation Date (unless excused) then –
– PLN can draw pre agreed amounts from Performance
Security Stage 2 at 90,120 and 180 days delay
– PLN can terminate the PPA if the construction is 90 days
after the Required Commercial Operation Date
– PLN can terminate the PPA if construction does not start
within 90 days of the Effective Date
• A termination right at 90 days is onerous and risks and is
not consistent with timings for drawdown on the bond
THE CONSTRUCTION PERIOD
Compared to “usual” PPAs
•treatment is “better” in that there is no sanction for first 90 days
of delay
•However treatment is “worse” in that a termination right applies
after 90 days
A “usual” PPA would provide for
•liquidated damages for each day of delay
•once liquidated damages exhausted (6-12 months?) only then
does a right to terminate apply
THE CONSTRUCTION PERIOD

Cause of Delay Extension of time Financial Consequence

Failure of PLN to Apparently not but Apparently not
carry out obligation implied right to claim
Failure of PLN to Yes Deemed commissioning
carry commission and start of payments
obligations
“Political” Force Yes If it constitutes a “Trigger
Majeure Event” (basically change
in law)
If it delays
commissioning –
deemed commissioning
and start of payments
THE CONSTRUCTION PHASE
Cause of Delay Extension of time Financial Consequence
Force Majeure (not Yes No
“Political”) affecting
plant
Force Majeure (not Yes First fourteen days – no
“Political”) affecting Thereafter deemed
grid commissioning and start
of payment
Anything else No No
THE OPERATION PHASE

Because of nature of tariff there are extensive forecasting

requirements for delivery of electricity (starting 3 months prior to
commercial operations).
PLN right to approve Scheduled Outages (normal in PLN and
most other PPAs – PLN needs to schedule maintenance over
the grid)
PLN obliged to accept all electricity generated from power
station (this is usual for renewable PPAs)
TARIFF

Thermal PPAs: 2 part tariff:

• Capacity Charge – covers debt service, fixed operating costs
and profit – paid on basis of plant’s availability to generate
• Energy Charge – covers fuel and variable operating costs –
paid on basis of electricity actually generated
Renewable PPAs
• No (or very limited) variable costs so tend to be paid on basis
of Energy Charge only backed by an obligation on the utility to
take all electricity generated
• Protection for project when electricity can’t be generally by
virtue of some matters beyond its control
TARIFF

• This PPA has a take or pay mechanism to compensate the

project for shortfalls in action generation below the lower of
planned generation or actual on availability to generate.
Calculated and paid monthly
• Further annual reconciliation of take or pay payments and
where aggregate take or pay payments have taken payments
over a level of (90% capacity x hours x tariff) then there is a
50% refund of the excess to PLN
• Finally if Availability is less than 90% then there is a refund to
PLN of 1% of Take or Pay payment for each 1% shortfall
TARIFF

• Base Power Price: A fixed amount payable in USD (we think

this is out of date – PLN are now changing to a Rupiah
amount indexed to USD – to reflect recent changes in
Indonesian law) per KWH. 25% of this indexed by reference
to USPPI. The remainder is not
• Separate amount payable in respect of construction of
“Special Facilities” (transmission line, substation etc.) This
typically a fixed (USD indexed) payment per month. This PPA
is uncertain because it is expressed as a payment per KWH
but when looking at the clause it is clearly intended to be a
fixed payment.
FORCE MAJEURE AND TERMINATION

Standard international practice:

• all force majeure gives the affected party relief from obligation
• a limited category of “political” type events (change in law,
unfair loss of consents etc.) gives the project company both
relief from obligation and entitlement to financial
compensation [The power purchaser is typically not entitled to
relief for such force majeure]
• the project company should not take any financial risk to the
extent that force majeure affects the grid and prevents PLN
from taking electricity
The logic for this – the latter two categories of risk cannot be
insured against, the first can
FORCE MAJEURE AND TERMINATION

This PPA basically follows this rule

But
• category of “political” events is very narrow and excludes
certain categories (war, political violence) that are usually
treated as “political” (and which cannot be insured against)
• On grid force majeure the project company has to take the
first 14 days’ financial risk on any occurrence (capped at 28
days per year)
This is consistent with PLN practice on all its PPAs
FORCE MAJEURE AND TERMINATION

• The power station has no value without a PPA

• So usual practice in single buyer markets is for the utility to
have the right and sometimes the obligation to buy the
power station for a pre-determined price
• This PPA is no exception (and is no different from PLN’s other
PPAs)
FORCE MAJEURE AND TERMINATION

Cause of Who can PLN obligation Purchase Price

Termination terminate or option to buy
Project breach prior PLN Option Nil
to Effective Date
Project back after PLN Option Debt less committed but
Effective Date unsubscribed equity
PLN breach prior to Project Obligation Exploration Costs +
Effective Date (historic) 15% return
payment + Termination
Costs
PLN breach after Project Obligation Discounted net cashflow
COD + debt + Termination
Costs
FORCE MAJEURE AND TERMINATION
Cause of Who can PLN obligation Purchase Price
Termination terminate or option to
buy
Political Force PLN Obligation Exploration Costs +
Majeure prior to (historic) 15% return
COD payment + Termination
Costs
Political Force PLN Obligation Discounted net cashflow +
Majeure after COD debt + Termination Costs
Grid Force Majeure PLN Obligation Exploration Costs +
prior to COD (historic) 15% return
payment + Termination
Costs
Grid Force Majeure PLN Obligation Discounted net cashflow +
after COD debt + Termination Costs
FORCE MAJEURE AND TERMINATION
Cause of Who can PLN obligation Purchase Price
Termination terminate or option to buy
Natural Force Seller N/A No Payments
Majeure affecting
Project (24 months)
Termination of Seller N/A No Payments
Geothermal Licence
(IUD)
FORCE MAJEURE AND TERMINATION

The above, arguably with the exception of the position on natural

force majeure, reflects usual PPA practice
As far as natural force majeure is concerned, the “theory” is that
his should be insured by the Project – thus it can take the
insurance money and pay itself out.
The problems are:
• the 24 month period before termination can be exercised – it
is unlikely that insurance will cover loss of income for all o that
period
• not all force majeure events will be insurable
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