$1.3m lawsuit against solar developer highlights Bermudian company’s claims
A $1.3 million lawsuit shows claims made by a Bermudian company after one of its contracts at the island’s first utility scale solar farm was terminated.
Noesis Consulting Limited launched legal action against Saturn Solar Developments Ltd over the project at the Finger in St David’s.
Leroy Robinson and Tarra Timmins, co-owners of the Bermudian-based company, said that problems outside of their control resulted in delays.
Saturn Power, the Ontario-based company behind the project, which incorporated SSD on the island, declined to comment.
A writ of summons filed in the Supreme Court by Noesis lawyers said that the company signed a contract on January 24, 2019 for development of the solar farm and sent it by e-mail the next day.
It added that the island firm – relying on terms of agreement and at the instruction of SSD – authorised its subcontractor to rent a pile driver so that work could begin.
The writ said that SSD asked via e-mail for invoices and, upon receipt, advised that they would be processed.
But it added that on February 5, 2019, Saturn told the firm that it could not fulfil invoices “as the contract had not been executed”.
The writ added: “It was later discovered by the plaintiff that during this time, the defendant was awaiting the review of the contracts by the departments of energy and planning and the requisite permissions.”
It claimed that Noesis incurred costs of $96,000 for four months rental of the pile driver.
The writ said that another two contracts – “interconnect” and “solar farm” – were dated May 13, 2019.
It added that the first was “integral to the functionality” of the project.
But the writ said that Noesis received notice on September 29, 2020 that the interconnect contract was being terminated.
It added that, on the same day, a lawyer for SSD wrote that the notice was sent because of “significant” delay, even after a grace period.
But it was claimed that SSD “wrongly terminated” the agreement.
The writ said that an alleged breach happened when Noesis was unable to hit a completion milestone because of the failure of the fibre component of the interconnection cable, as well as delay in getting a replacement.
It added that Noesis will argue that the problem amounted to a “force majeure” event under the deal’s terms.
The writ said: “Further, the defendant had by their actions, accepted that the failure of the fibre part of the cable was not the fault of the plaintiff, in that they agreed to a remediation plan.”
It added that Noesis sought $364,380 in damages for an outstanding balance on the interconnect deal.
Mr Timmins said that the general contractor was alerted “on a couple of occasions” that the coronavirus pandemic made it more difficult to get a replacement cable.
He explained: “Our manufacturer said that sourcing materials due to Covid-19 was the main issue.”
Mr Timmins added: “We bought the cable from a supplier, the supplier bought it from a manufacturer because a custom cable had to be made … there’s three chains of command there and every one of them could not control the manufacture of this cable during Covid.”
He said: “The cable actually arrived in October, which was about six weeks delayed, which in our opinion was no need to terminate our contract.”
The writ claimed that SSD “wrongfully refused” to extend a substantial completion date from January 8, 2020 and “wrongly applied liquidated damages” deducted from the solar farm contract price.
Noesis sought $719,629 in damages over the solar farm deal.
The writ claimed that reasonable accommodations were not made by SSD for procurement delays, the replacement of damaged parts and a change to the scope of works in the solar farm contract.
It alleged: “The defendant failed to procure the necessary equipment to commence the solar farm contract, which delayed the project and caused the plaintiff loss and delay, for which the defendant failed to grant an extension of time for the substantial completion of the project.”
It claimed that Noesis "sustained unforeseeable delays resulting from adverse weather conditions“ throughout the project.
The writ said that these included lightning storms, heavy rain and “abnormal heat conditions” that reportedly left workers unwell.
It added that adjustments made to accommodate the safety of workers caused production levels to drop in July and August 2019.
The writ highlighted Hurricane Humberto, a Category 3 storm that passed Bermuda in September 2019, and post-tropical cyclone Jerry, which threatened the island a week later.
It said that the storms “had unanticipated delay consequences” on the project and that SSD “unreasonably” allowed for only seven delay days.
Mr Timmins told The Royal Gazette that the weather was a bigger factor than expected because the job started in summer, rather than winter as first planned.
He explained: “We did the risk analysis, we told Saturn what we were going to do and we made those adjustments.
“That means guys were breaking every two hours, getting the shade, plenty of water.
“That made massive reduction in production for us.”
The writ alleged that “procurement items necessary for completion of the project were still not on island” until after an extended substantial completion date of January 8, 2020.
Mr Robinson highlighted that the solar farm contract was for construction only.
He added: “We did not have a say in procurement, engineering, design – nothing but labour, meaning that everything was reliant on them doing their job.”
The writ said that Noesis was unable to pay outstanding invoices for subcontractors, which have accrued interest.
The company sought $167,376 “for labour costs resulting from contract delays”.
A legal notice published in The Royal Gazette in July 2018 showed that Raymond Roth, Jeremy Goertz and Douglas Wagner, on behalf of Saturn Power International Inc, were applying to incorporate a limited liability company to be called Saturn Solar Developments Ltd.
The men named are the chief operating officer, a former vice-president and the president of Saturn Power respectively.
Documents filed with the Registrar of Companies showed that SSD was later granted a licence to conduct business in Bermuda “to provide engineering, procurement and construction services to Saturn Solar Bermuda 1 Ltd” with respect to the solar farm project at the Finger.
The firm was also permitted “to engage in all business and activities” related to the job, including “dealing and contracting with employees, contractors, governmental authorities and third parties”.
An entry on the RoC website showed that SSB1 was registered on the island in October 2017.
A legal notice published in the Gazette earlier that month showed that Mr Roth, Mr Goertz and Mr Wagner, on behalf of Saturn Power International Inc, were applying to incorporate the firm.
Walter Roban, the Minister of Home Affairs, announced in June 2018 that SSB1 was awarded the contract to build the six-megawatt plant.
An application on the Regulatory Authority website for change of control of the plant to the Bermuda Infrastructure Fund, showed that all the issued shares of SSB1 were owned by Saturn Solar Bermuda Holdings Ltd – “an exempted company that is owned by Saturn Power International Inc, an Ontario corporation”.
The RoC website showed that SSBH was registered in May 2019.
A spreadsheet that detailed the project’s progress showed that Saturn Solar Bermuda 1 – which won a contract to develop the plant, SSD was licensed to provide the firm with construction services – made multiple requests for extensions to the works long stop date.
It revealed that the project was originally expected to be finished by July 2019.
Energy from the solar farm started feeding into the electricity grid last November under a power purchase agreement with utility company Belco.
Mr Robinson highlighted that Saturn was allowed extensions but added: “Why wouldn’t they extend for their subcontractors?”
A Saturn Power spokesman said that the company would not comment until the conclusion of the court case.
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