Saturday, Dec. 02, 2023|
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The landlord of Hawaiian Springs Water LLC’s bottling plant is suing the Keaau-based company.
The civil lawsuit was filed Thursday in Hilo Circuit Court on behalf of Hawaii Brewery Development Co. by Honolulu attorneys Harvey Lung and William Brennan.
It alleges Hawaiian Springs has defaulted on a power purchase agreement with HBDC to buy all the electricity produced by a 300-kilowatt solar energy facility installed by the landlord.
The financial terms of the 20-year contract — which was entered into on June 4, 2014 — aren’t included in the suit. The document states that the power purchase agreement requires Hawaiian Springs to “take delivery of … all energy produced by the system.”
The complaint seeks injunctive relief, unspecified monetary damages, and attorneys fees and costs, plus interest.
“Litigation is a last resort. I think it was a last resort here. But there’s just been no communication, and it forced Hawaii Brewery Development Co. into having to file the complaint,” Lung told the Tribune-Herald on Tuesday.
He declined to specify the financial terms of the agreement or how much money the plaintiffs are seeking in the civil action.
The suit states that between June 2015 and August 2022, Hawaiian Springs “made the required payments … although many such payments were made late and only after notices of default were issued by plaintiff.” It alleges the water company “has repeatedly breached and continues to breach” the contract by failing to pay invoices in a timely manner.
Hawaiian Springs hasn’t made a payment since Nov. 1, 2022, the complaint alleges, and accuses the water bottler of “unjust enrichment” for its failure to do so.
According to the lawsuit, Hawaiian Springs also has regularly failed or refused “to tender timely payments of rent and other amounts owed to plaintiff under the lease … curing missed payments, but only after one or more notices of default or threats of potential legal action” from HBDC.
The complaint also accuses Hawaiian Springs of breaching a “joint use” provision of the lease to allow HBDC “to use up to 50% of the water produced by the well located” on the water bottling site.
“There’s been a pattern of conduct by Hawaiian Springs Water in terms of how they’ve dealt with our client,” Lung said. “The complaint is not focused on the lease or the well, but we point out there are defaults under those obligations, as well, just for context.
“But the complaint is specifically only as to the power purchase agreement.”
The suit does, however, contain what appears to be an olive branch extended for a possible settlement, stating the plaintiff “continues to be ready, willing and able to perform its energy delivery and invoicing services in accordance” with the power purchase agreement.
“Certainly, if Hawaiian Springs Water wants to negotiate and work something out, there’s no hesitation on the part of our client to do that,” Lung said.
No court date has yet been set in the lawsuit.
A phone call Tuesday to Hawaiian Springs wasn’t returned in time for this story.
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