Exhibit 10.1
SELECT ENERGY, INC. AND NGC
POWER PURCHASE AND SALES AGREEMENT
This Power Purchase and Sales Agreement ("Agreement") is made and
entered into as of this 27th day of December, 1999, by and between Select
Energy, Inc. a Connecticut corporation with a principal place of business at
000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000 (hereinafter "Select" or
"Buyer"), and Northeast Generation Company, a Connecticut corporation with a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000
(hereinafter "NGC" or "Seller"). Select and NGC are hereinafter referred to
singularly as "Party" and collectively as "Parties" for purposes of this
Agreement.
WITNESSETH:
WHEREAS, NGC and Select are wholly-owned subsidiaries of NU
Enterprises, Inc., which in turn is a wholly-owned subsidiary of Northeast
Utilities; and
WHEREAS, as a result of electric utility restructuring legislation in
Connecticut and Massachusetts, Northeast Utilities' electric operating
subsidiaries The Connecticut Light and Power Company, a Connecticut corporation
("CL&P") and Western Massachusetts Electric Company, a Massachusetts corporation
("WMECO") conducted an auction of certain electric generating fossil and hydro
assets; and
WHEREAS, as a result of the auction of those assets, and subject to
regulatory approval and the other conditions precedent set forth in the two
Purchase and Sale Agreements dated July 2, 1999 between NGC and CL&P
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and WMECO, respectively, NGC will be acquiring, the CL&P and WMECO hydroelectric
facilities and a fossil electric generating facility located in Massachusetts
and Connecticut more particularly described herein (together, the "Facilities");
and
WHEREAS, Select and NGC are parties to the New England Power Pool
("NEPOOL") Agreement, dated as of September 1, 1971, as amended, and pursuant
such amended Agreement, the ISO-NE provides dispatching services for the
Facilities; and
WHEREAS, the Parties desire to provide in this Agreement the terms and
conditions pursuant to which NGC will sell to Select, and Select will purchase
from NGC the capacity, associated energy output and ancillary services of the
Facilities.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties hereto agree as follows:
ARTICLE ONE
GENERAL DEFINITIONS
1.1 DEFINITIONS. In addition to terms defined hereunder or elsewhere in
this Agreement, any term used in this Agreement and not defined herein, shall
have the meaning as stated in the NEPOOL Agreement or the NEPOOL Standards, as
appropriate.
"AFFILIATE" means, with respect to any entity, any other entity that, directly
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such entity. For this purpose, "control"
means the direct or indirect ownership of fifty percent (50%) or more of the
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outstanding capital stock or other equity interests having ordinary voting
power.
"ANCILLARY SERVICES" means 10-Minute Spinning Reserve ("TMSR"), 10-Minute
Non-Spinning Reserve" ("TMNSR"), 30-Minute Operating Reserves ("TMOR"), and
Automatic Generation Control ("AGC"), all having the meanings as defined in the
NEPOOL Agreement.
"BANKRUPT" means with respect to a Party, such Party (i) files a petition or
otherwise commences a proceeding under any bankruptcy, insolvency,
reorganization or similar law, or has any such petition filed or commenced
against it, (ii) makes an assignment or any general arrangement (other than an
assignment undertaken in connection with a financing) for the benefit of
creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced),
(iv) has a liquidator, administrator, receiver, trustee, conservator or similar
official appointed with respect to it or any substantial portion of its property
or assets, or (v) is generally unable to pay its debts as they fall due.
"BUSINESS DAY" means any day except Saturday, Sunday, a Federal Reserve Bank
holiday or a holiday according to the North American Electric Reliability
Council or any successor organization thereto; and a Business Day shall open at
8:00 a.m. and close at 5:00 p.m. Eastern Standard (or Daylight) time.
"BUYER'S ENTITLEMENT" shall mean one hundred percent (100%) of the Seasonal
Claimed Capability or its equivalent, Operable Capability, Energy, and Ancillary
Services associated with the Facilities, and the use of the pondage associated
with the Northfield Facility and Rocky River Facility.
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"DELIVERY PERIOD" means the period of time from the date physical delivery of
the Products is to commence to the date physical delivery is to terminate under
the Agreement.
"DELIVERY POINT(S)" means the point(s) at which the Product will be delivered
and received, as more particularly described in Schedule 1 hereto.
"ENERGY" means electric energy in the form of merchantable electricity expressed
in megawatt hours and shall be three-phase, 60-cycle alternating current as
delivered to the Delivery Point(s) and metered at the Metering Point(s).
"FACILITIES" shall mean the hydro-electric generating units and associated
ponds, and the fossil electric generating unit, as more particularly described
in Schedule 1 attached to this Agreement, which Schedule is incorporated in this
Agreement as if set forth herein. Each unit may be referred to herein
individually as a "Facility," or more particularly described as the "_____
Facility."
"FERC" means the Federal Energy Regulatory Commission or any successor
government agency.
"GOOD UTILITY PRACTICE" shall mean any of the practices, methods, and acts
engaged in or approved by a significant portion of the electric utility industry
during the relevant time period, or any of the practices, methods, and acts
which, in the exercise of reasonable judgment in light of the facts known at the
time the decision was made, could have been expected to accomplish the desired
result at the lowest reasonable cost consistent with full compliance with
applicable laws and regulations, good business practices, reliability, safety,
environmental protection, and expedition. Good Utility Practice is not intended
to be the optimum practice, method, or act, but rather to be a
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spectrum of acceptable practices, methods, or acts generally accepted in the
industry in the United States.
"INTEREST RATE" means, for any date, the lesser of (a) two (2) percent over the
per annum rate of interest equal to the prime lending rate as may from time to
time be published in the WALL STREET JOURNAL under "Money Rates" (or if not
published on such day on the most recent preceding day when published) and (b)
the maximum rate permitted by applicable law.
"INCENTIVE PAYMENT" means that additional payment or credit made by the Parties
in consideration for certain performance of the Facilities, as further described
in Section 5.11 herein.
"ISO-NE" means the ISO - New England Inc., or its successor in interest.
"LEAD PARTICIPANT" shall have the meaning as stated in the NEPOOL Market Rules.
"METERING POINT(S)" means those points on the busbars of the Facilities as
agreed to by the Operating Committee established per Article 14.
"NEPOOL" means the New England Power Pool, or its successor in interest.
"NEPOOL AGREEMENT" means the Restated NEPOOL Agreement, dated as of December 1,
1996 as it may have been or hereafter be amended from time to time.
"NEPOOL STANDARDS" means all Criteria, Rules, Standards, NEPOOL Automated
Billing System Procedures, NEPOOL Operating Procedures and NEPOOL Market Rules
issued or adopted by NEPOOL, ISO-NE and their satellite agencies, or their
successors, as amended from time to time.
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"NU GUARANTY" shall mean the guaranty by Northeast Utilities of Select's
obligations hereunder in a form and substance substantially satisfactory to
Seller.
"NORTHFIELD FACILITY" means the 1,120 MW pumped storage hydroelectric project,
located in the towns of Northfield, Erving, Montague, and Xxxx, Massachusetts,
Hinsdale, New Hampshire, and Vernon, Vermont on the east side of the Connecticut
River, and comprised of an underground powerhouse, a man-made upper reservoir,
the Turners Falls Pond of the Connecticut River serving as the lower reservoir,
and an underground penstock, draft tube, and tailrace tunnel connecting the
upper and lower reservoirs.
"OPERATING AGENT" shall mean the corporate entity (which may or may not be an
affiliate of the Seller), if any, with which NGC has designated to and
contracted with to manage, operate and maintain the Facilities. The term
"Seller" as used herein shall also mean Operating Agent where the Seller has
assigned the specified responsibility and duty to the Operating Agent.
"OPERABLE CAPABILITY" shall have the meaning as stated in the NEPOOL Agreement.
"PARTICIPANT" shall have the meaning as stated in the NEPOOL Agreement.
"PRICE" means the price to be paid by Buyer to Seller for the purchase of the
Product.
"PRODUCT" means the Seasonal Claimed Capability, Operable Capability, Energy and
Ancillary Services bought and sold pursuant to this Agreement.
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"PUMPING COSTS" shall mean all costs (including any transmission costs to the
Delivery Point(s) and energy costs, demand, capacity or reservation charges,
taxes or hydraulic losses) required to pump water from the ponds associated with
the Northfield Facility and the Rocky River Facility.
"QUANTITY" means that quantity of the Product that Seller agrees to make
available or sell and deliver, or cause to be delivered, to Buyer, and that
Buyer agrees to purchase and receive, or cause to be received, from Seller
pursuant to the terms of this Agreement.
"ROCKY RIVER FACILITY" means the approximately 30 MW pumped storage
hydroelectric project in New Milford, Connecticut, consisting of an upper
reservoir known as Candlewood Lake, with one dam and five dikes, an intake canal
and intake structure, a penstock that leads to a powerhouse containing one
turbine generator and two reversible pump/turbines.
"SCHEDULE" OR "SCHEDULING" means the acts of Seller, Buyer and/or their
designated representatives, including each Party's Transmission Providers, if
applicable, of notifying, requesting and confirming to each other the quantity
and type of Product to be delivered on any given day or days during the Delivery
Period at a specified Delivery Point.
"SEASONAL CLAIMED CAPABILITY" of the Facilities shall have the meaning as set
forth in the NEPOOL Standards.
"STATION SERVICE" means Generator Load Asset Service, or such other equivalent
service as is required under NEPOOL Rules or under CL&P's or WMECO's applicable
retail tariffs to provide a Facility with electric power service.
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"TRANSMISSION PROVIDER" means the entity or entities transmitting or
transporting the Product on behalf of Seller or Buyer to or from the Delivery
Point(s).
"TUNNEL JET FACILITY" means the approximately 20 MW internal combustion unit
located at the Tunnel hydroelectric station in Preston, Connecticut, and
including the gas turbine enclosure building, a gas turbine control building and
an above ground fuel oil storage tank.
1.2 INTERPRETATION
AMENDMENTS INCLUDED. Reference to, and the definition of, any document
(including this Agreement) shall be deemed a reference to such document as it
may be amended, amended and restated, supplemented or modified from time to
time.
SUCCESSORS INCLUDED. Reference to any individual, corporation or other entity
shall be deemed a reference to such individual, corporation or other entity,
together with its successors and permitted assigns from time to time.
ARTICLES, SECTION, OR SCHEDULES. Unless otherwise specified, all references to
an "Article," "Section," or "Schedule" are to an Article or Section hereof or to
a Schedule attached hereto.
NUMBER. Defined terms in the singular shall include the plural and vice versa.
WHOLE AGREEMENT. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
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HEADINGS. The headings in this Agreement are for the purpose of reference only
and do not limit or affect its meaning.
TERMS OF INCLUSION. Whenever the words "include," "includes" or "including" are
used in this Agreement, they are not limiting and have the meaning as if
followed by the words "without limitation."
ARTICLE TWO
TERM, SECURITY AND TERMINATION
2.1 EFFECTIVE DATE. This Agreement shall be effective upon the later to
occur of the date that the Parties execute the Agreement or the date that FERC
allows this Agreement to become effective. The Parties shall use best efforts to
acquire FERC's allowance of this Agreement to become effective, and failing
receipt of such allowance by June 30, 2000, this Agreement may be terminated by
either Party by delivery of written notice of such termination to the other
Party, without further obligation hereunder.
2.2 INITIAL PERIOD. The term of the Delivery Period under this Agreement
shall commence on the date that Seller first obtains ownership of any portion or
all of the Facilities, and shall remain in effect through December 31, 2005,
("Initial Period"), at which time this Agreement shall terminate thereafter
unless it is extended ("Renewal Period") by the Parties by written agreement
prior to December 31, 2004 in accordance with Section 2.3. Notwithstanding the
foregoing, the Parties' obligations under this Agreement with respect to a
particular Facility shall not commence until the date that Seller obtains an
ownership interest in that Facility, and then shall apply only to the extent of
such ownership interest. The Initial Period and any Renewal Periods shall be
known as the "Term."
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2.3. RENEWAL PERIOD. No later than twelve (12) months prior to the end of
the Initial Period, the Parties agree to negotiate in good faith the appropriate
terms and conditions for the Renewal Period. If the Parties fail to reach
written agreement on such terms, this Agreement shall terminate at the end of
the Initial Period with no further obligation of either Party beyond those
surviving this Agreement.
2.4 MATERIAL CHANGES. In the event that FERC or other regulatory agency
with jurisdiction over this Agreement make substantial changes or modifications
to any of the terms contained herein, the Parties shall cooperate to make such
changes as will keep the Parties on substantially the same terms as contained
herein. If the Parties, acting in good faith, cannot reach agreement within
thirty days of said changes or modifications, either Party may terminate this
Agreement, without further obligation, upon three (3) Business Days prior
written notice.
2.5 TERMINATION RIGHTS. Termination by either Party in accordance with the
terms of this Agreement shall not affect or excuse the performance of either
Party under any provision of this Agreement that by its terms survives any such
termination, including, but not limited to xxxxxxxx, and indemnification and
liability.
ARTICLE THREE
PURCHASE AND SALE OBLIGATIONS
3.1 SELLER AND BUYER'S OBLIGATIONS. During the Term of the Delivery Period,
and subject to the terms and conditions of this Agreement, Seller shall produce,
sell and deliver, or cause to be delivered to the Delivery Point(s), and Buyer
shall purchase and receive, or cause to be received, at the Delivery Point(s),
Buyer's Entitlement to all the Products available from each
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of the Facilities at the Prices stated herein on Schedule 1 and pursuant to the
payment schedule set forth on Schedule 2. In addition to the Prices, Buyer shall
pay Seller, or be credited by Seller, an annual Incentive Payment as further
described in Section 5.11 herein, and Buyer shall reimburse Seller for Station
Service charges incurred by the Facilities.
3.2 INTEREST IN FACILITIES. This Agreement shall not be interpreted to give
Buyer any interest in other generating units or facilities at the Facilities
(whether such units or facilities are presently installed or are installed at
some future date), or any rights with respect to the Facilities, or its site,
other than those expressly provided herein.
3.3 CAPABILITY AUDITS. Seller shall perform capability audits of the
Facilities and submit the results of such audits to the ISO-NE in accordance
with the NEPOOL procedures in effect from time to time. In the event that any
capability audit results in a change in the Seasonal Claimed Capability (or its
equivalent) of a Facility, Buyer shall be promptly advised by Seller of the
change, and such changed Capability shall apply to the extent appropriate;
provided, however, any such change shall not affect Buyer's Entitlement, as
defined herein.
3.4 POINTS OF DELIVERY. Seller shall deliver Products from the Facilities,
as scheduled for dispatch by Buyer in accordance with Section 4.2 of this
Agreement, at the Delivery Point(s) for each such Facility. Title to, and risk
of loss for, the Products shall pass from Seller to Buyer at the Delivery
Point(s).
3.5 TRANSMISSION. Seller shall be responsible for arranging and paying the
costs of transmission and delivery of the Products to the Delivery Point(s), and
the Buyer shall be responsible for arranging and paying for all such costs
incurred at and after the Delivery Point(s).
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3.6 TAXES. The charges set forth in this Agreement are inclusive of all
taxes applicable to the sale of the Products hereunder. After the effective date
of this Agreement, if Seller is required by law or regulation to remit or pay a
sales tax, a value-added tax, or similar tax, Buyer shall promptly reimburse
Seller for such taxes.
ARTICLE FOUR
DISPATCH AND SCHEDULING
4.1 DISPATCH. Subject to Good Utility Practice, Buyer shall have the sole
discretion to request commitment and dispatch of the Products from each
Facility, up to the appropriate Seasonal Claimed Capability (or its equivalent)
available from the Facilities at the time.
4.2 BIDDING AND SCHEDULING AUTHORITY. Seller shall designate Buyer as Lead
Participant for the Facilities with the ISO-NE during the term of this
Agreement. Buyer shall have sole right and responsibility for bidding and
scheduling of the Facilities of the Buyer's Entitlement with the ISO-NE in
accordance with the NEPOOL Agreement. Buyer shall communicate to Seller all
scheduling and bidding information in a manner consistent with the timing
requirements of the ISO-NE and NEPOOL. Seller shall provide such support, as may
be reasonably requested by Buyer, in order to enable Buyer to perform such
obligations. All bidding and scheduling set by the Buyer shall be based
operating parameters set by Seller in accordance with the operation and
maintenance of the Facility as specified herein. Upon termination of this
Agreement in accordance with its terms, Seller shall promptly notify the ISO-NE
of the appropriate Lead Participant for the Facilities.
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4.3. BENEFITS AND LIABILITIES OF NEPOOL OBLIGATIONS. Buyer shall be entitled
to all NEPOOL-related benefits from, and shall bear all NEPOOL-related
obligations and liabilities associated with, the dispatch of the Facilities,
including but not limited to: negative bidding and self-scheduling the
Facilities; administrative actions taken by ISO-NE to adjust clearing prices,
including but not limited to actions taken by ISO-NE to address market power
issues, uplift payments or charges; transmission congestion costs from the
Delivery Point(s); lost opportunity payments; any emergency corrective action
taken by ISO-NE to correct market design flaws and to address system
emergencies; reconstituted clearing prices pricing during software/hardware
failures; and impacts on Energy clearing prices in situations where emergency
power must be purchased from neighboring control areas. Notwithstanding the
foregoing, Buyer's benefits and liabilities shall exclude those obligations and
liabilities that have been specifically undertaken by Seller (whether or not
assigned by Seller to its Operating Agent) for compliance with NEPOOL's
operational rules and requirements.
4.4 EMERGENCY CURTAILMENT. Seller may curtail, reduce or interrupt its sale
and delivery to Buyer of all or a portion of Buyer's Entitlement from any
Facility whenever: (a) continued operation of such Facility would result in
damage to the Facility or to a transmission system or distribution system with
which the Facility is directly interconnected; or (b) if a transmission or
distribution system with which the Facility is directly interconnected
experiences an emergency, as designated by the affected utility; or (c) whenever
it is necessary to aid in the restoration of service on a system with which the
Facility is directly or indirectly interconnected; or (d) whenever requested by
ISO-NE or a governmental authority with applicable jurisdiction thereof; or (e)
as required by Good Utility Practice. Seller shall notify Buyer as soon as
reasonably practicable of any such curtailment, reduction or interruption, it
being understood that is may not be reasonably practicable to provide such
notice in advance of such an event. Any such
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curtailment, reduction or interruption shall continue only for as long as
reasonably necessary to deal with such emergency.
4.5 COMMUNICATIONS WITH ISO-NE AND NEPOOL. Seller shall be responsible for
direct communications with ISO-NE or its satellite operator with regards to the
hourly actual operation of each Facility. Seller shall be responsible for
communications with Buyer regarding any and all directions received from the
ISO-NE or its satellite operator. Buyer shall have sole responsibility for
direct communications with ISO-NE regarding bidding and scheduling of each
Facility. Seller will be responsible for communications with regulatory agencies
associated with each Facility. Seller and Buyer shall maintain communications on
a regular and ongoing basis. Seller and Buyer will coordinate any other
communications with the ISO-NE and NEPOOL as appropriate.
ARTICLE FIVE
OPERATION AND MAINTENANCE OF FACILITIES
5.1 OPERATION AND MAINTENANCE. Seller shall have sole responsibility for
operation and maintenance of the Facilities (including making necessary and
appropriate repairs and replacements) in accordance with Good Utility Practice
and NEPOOL Standards. Seller shall also have sole responsibility for maintaining
those licenses, permits, approvals and regulatory or governmental agency
reporting requirements required of it, excluding any reporting requirements of
Buyer with respect to Buyer's activities.
5.2 GENERATION QUALIFICATION. Seller shall have sole responsibility for the
qualification of each Facility with the ISO-NE as a generation resource in New
England and compliance with applicable NEPOOL Standards.
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5.3 MAINTENANCE SCHEDULES. Seller has developed annual schedules of
expected maintenance outages of the Facilities for the Initial Period, which may
be modified only by mutual consent of the Parties. For any Renewal Period,
Seller shall develop an annual schedule of expected maintenance outages of the
Facilities on a schedule that satisfies the planning and operating requirements
for both Parties. The schedule shall include, for each Facility, estimated times
of operation, amounts of energy production, number of anticipated outages and
reductions of output and the reasons therefor, and the start dates and duration
of scheduled maintenance, including a specification of maintenance requiring
shutdown or reduction in output of any Facility. Buyer may request Seller to
revise its schedule for the timing and duration of scheduled maintenance outages
or reduction of output of any Facility to accommodate the reasonable
requirements of Buyer. Subject to Good Utility Practice, Seller shall attempt to
schedule maintenance consistent with satisfying Buyer's reasonable requirements
for Energy and Ancillary Services from each Facility. Seller may change its
maintenance schedule with respect to the timing and duration of any scheduled
maintenance outage or reduction of output of any Facility as required to satisfy
Good Utility Practice, with consent of Buyer.
5.4 COMMUNICATIONS. Seller will provide any and all information related to
the operation and maintenance of each Facility to Buyer as soon as practicable,
including but not limited to all maintenance schedules, operating parameters of
each Facility, change in equipment status and all events affecting the status or
level of operation of each Facility. Seller or its Operating Agent shall
maintain communications with Buyer on an on-going basis.
5.5 MODIFICATIONS TO FACILITIES. Seller shall provide nine (9) months
advance notice in writing to Buyer of any relocation or modification of any
facilities associated with the Facilities in order to accommodate other
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generating units at the Facilities, or to make any other use of such facilities.
In no event shall such relocation, modifications, or changes in use result in
any increase in costs to Buyer under this Agreement. Seller shall consult with
Buyer concerning any outages of Facilities used by Buyer which may result from
such relocation, modifications, and changes, and Seller shall consider the
effect upon Buyer when such outages are scheduled.
5.6 CAPITAL ADDITIONS. Seller and Buyer shall consult with each other
regarding the need for capital additions to the Facilities. Buyer may request
such capital additions to increase the Facilities' efficiency or capability, but
such modifications will be in the sole discretion of Seller. For any mutually
agreed upon capital addition, the Parties will discuss and agree upon amendments
to this Agreement reflecting changed terms, conditions or price.
5.7 DESTRUCTION, DAMAGE, CONDEMNATION OF FACILITY. In the event that a
substantial portion of a Facility is destroyed, damaged, or condemned and Seller
is therefore unable to supply some or all of its Products from the Facility: (1)
Seller may elect to repair, restore or reconstruct such Facility to its former
character and use, or to such character and use as Seller may then determine to
be appropriate, or (2) Seller may elect not to repair, restore or reconstruct
such Facility (and subsequently may elect to retire such Facility from service
pursuant to Section 5.8 hereof). Although the sole responsibility and authority
for making any election regarding repair, restoration or reconstruction shall
rest with Seller, Seller shall consult with Buyer concerning such repair,
restoration or reconstruction; provided, however, that any such consultation
shall not be allowed to delay any work on such Facility or affect the sole
discretion of Seller in making any such election.
In the event such Facility cannot, using Good Utility Practice, be
repaired, restored or reconstructed to supply Products, then Buyer shall have
the option to suspend payment for such Facility after a thirty (30) day
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consecutive period of non-operation due to such destruction, damage or
condemnation. When the Facility returns to service, Buyer shall resume payment
for the Products of such Facility in the first month following the resumption to
service; provided, however that upon sixty (60) days prior written notice by
Buyer to Seller during a period when the Facility is non-operable due to such
destruction, damage or condemnation, Buyer has the option to permanently suspend
payment for said Facility if the Facility does not or will not return to service
by the ninety-first (91) day from such destruction, damage or condemnation.
5.8 WITHDRAWAL OR RETIREMENT OF FACILITY FROM SERVICE. Except as expressly
provided, this Agreement shall not be interpreted to restrict or limit Seller's
right at any time and for any reason to take any of the following actions in
regard to the Facilities:
a. To remove a Facility from service.
b. To maintain a Facility in an out-of-service condition for any
period of time.
c. To restore a Facility to service after the Facility has been
removed from service.
d. To retire a Facility permanently.
e. To totally or partially demolish, remove and/or dispose of a
Facility if and when it is no longer in service.
Although Seller retains the sole authority for making such decisions
relative to the Facilities, to the extent practicable, Seller shall consult with
Buyer and provide six (6) months' advance notice to Buyer prior to taking the
actions listed in b., d. or e. above. In the event that Seller takes such action
as provided in this Section, Seller shall reduce the Price to Buyer charged
under this Agreement for such Facility accordingly.
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5.9 INSURANCE. Seller shall maintain liability and property insurance
coverage with respect to its ownership of the Facility, and the operation and
maintenance of the Facility, which insurance shall afford appropriate protection
for the interest of all Parties against those insurable hazards and risks
covered pursuant to Good Utility Practice. Seller shall have the right to use
insurance proceeds to repair, restore or reconstruct the Facility in accordance
with Article 5.
5.10 METERING. All energy delivered by Seller to Buyer from a Facility under
this Agreement shall be metered at meter installations or telemetry equipment
provided, installed, owned and maintained by Seller or its designee. Such meters
and telemetry equipment shall be maintained and operated in accordance with Good
Utility Practice, as necessary to satisfy any billing requirements for the
Products delivered to Buyer under this Agreement and any metering, billing and
settlement requirements of ISO-NE. Seller shall be responsible for reading and
testing of meters and telemetry equipment at least once a year, and shall
promptly correct any metering inaccuracy from each Facility, and adjust the next
forthcoming statement with a credit or charge as appropriate so far as can be
reasonably ascertained, but no further back than twelve months prior to the date
of the discovery of such meter inaccuracy. Seller shall provide Buyer with such
access as is reasonably required by Buyer to read any telemetry equipment.
5.11 INCENTIVE PAYMENT. Prior to the beginning of the Initial Period, and at
least thirty (30) days prior to each calendar year thereafter, the Operating
Committee shall meet to set the parameters of and goals for the Facilities'
performance for purposes of calculating the following year's Incentive Payment.
Within thirty (30) days after each calendar year, or such other time period as
agreed upon by the Parties, the Operating Committee shall calculate the
Incentive Payment for the previous year's performance of the Facilities. The
Incentive Payment for each calendar year made by Buyer to
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Seller shall be no greater than $2.5 million, and the credit by Seller to Buyer
under the Incentive Payment shall be no greater than $1.25 million, and shall be
the amount actually paid by Seller to its Operating Agent (or, in the case of a
credit, the amount actually paid by the Operating Agent to Seller), pursuant to
the terms of the incentive payment set forth in an operations and maintenance
agreement between the Seller and its Operating Agent. Any Incentive Payment
shall be made or credited by the appropriate Party within sixty (60) days after
the end of the calendar year. Seller will calculate the Incentive Payment as a
charge or credit to Buyer on the appropriate month's statement.
ARTICLE SIX
TOLLING RESPONSIBILITIES
6.1 NORTHFIELD AND ROCKY RIVER FACILITIES. Buyer shall have sole
responsibility for the Pumping Costs associated with the Northfield Facility and
the Rocky River Facility. Buyer shall communicate to Seller all pumping
scheduling information in a manner consistent with the timing requirements of
the ISO-NE and NEPOOL. Upon termination of this Agreement in accordance with its
terms, the Parties shall true-up the value to each Party associated with the
difference between the inventory of pondage at the commencement of the Term of
the Delivery Period and upon termination of this Agreement.
6.2 TUNNEL JET FUEL. Buyer shall supply and deliver to Seller the quantity
of jet fuel required to operate the Tunnel Jet Facility at the inlet flange of
the above-ground jet fuel oil storage tank ("Fuel Delivery Point"), as specified
by Seller. Buyer shall be responsible for the costs of such fuel, as well as for
arranging and paying for the transportation of such fuel to the Fuel Delivery
Point. Buyer and Seller shall coordinate the schedule of such fuel deliveries to
provide for the efficient and reliable acquisition and delivery
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of Tunnel Jet fossil fuel requirements. Upon termination of this Agreement in
accordance with its terms, the Parties shall true-up the value to each Party
associated with the difference between the inventory of fuel at the commencement
of the Term of the Delivery Period and upon termination of this Agreement.
ARTICLE SEVEN
NEPOOL PARTICIPATION
7.1 PARTICIPANT STATUS. While Seller remains a NEPOOL Participant during
the Term of this Agreement, Buyer shall (1) remain a NEPOOL Participant, or (2)
make appropriate arrangements with an entity that is a NEPOOL Participant in
order to account for Buyer's Entitlement Percentage, or (3) become a party to
appropriate interchange arrangements with NEPOOL.
ARTICLE EIGHT
FORCE MAJEURE
8.1 FORCE MAJEURE DEFINITION. As used in this Agreement, "Force Majeure"
means an event or circumstances which prevents one party from performing its
obligations under this Agreement, which event or circumstances is not within the
reasonable control of, and not caused by the negligence of, the Party claiming
Force Majeure (the "Claiming Party"), and which, by the exercise of Good Utility
Practice, the Claiming Party is unable to overcome or avoid or cause to be
avoided. Consistent with the above, Force Majeure includes, without limitation,
sabotage, strikes or other labor difficulties, riots or civil disturbance, acts
of God, act of public enemy, drought, earthquake, flood, explosion, fire,
lightening, landslide, or similarly cataclysmic occurrence, or appropriation or
diversion of electricity by sale or binding order of any court or governmental
authority having jurisdiction
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thereof (so long as the Claiming Party has not applied for or assisted in the
application for such Court or government action), or any other cause, whether of
the kind herein enumerated, or otherwise. Force Majeure shall not include (i)
the loss of Buyer's markets; or (ii) Buyer's inability economically to use or
resell the Product purchased hereunder. The settlement of strikes, walkouts,
lockouts, and other labor disputes shall be entirely within the discretion of
the Party involved, and such Party may make settlement at such time and on such
terms and conditions as it may deem to be advisable; provided, however, that
Seller shall use all reasonable efforts to keep the Facilities operational
during such labor disputes or strikes. Interruption by a Transmission Provider
shall not be deemed to be an event of Force Majeure unless (i) the Party
contracting with such Transmission Provider shall have made arrangements with
such Transmission Provider for the firm transmission, as defined under the
Transmission Provider's tariff, of the Product to be delivered or received
hereunder and (ii) such interruption is due to "force majeure" or
"uncontrollable force" or a similar term as defined under the Transmission
Provider's tariff.
8.2 EFFECTS OF FORCE MAJEURE. If either Party to this Agreement is rendered
wholly or partly unable to perform its obligations hereunder because of Force
Majeure as defined above, that Party shall be excused from whatever performance
is affected by the Force Majeure to the extent so affected, provided that:
(a) the non-performing Party promptly, but in no case longer than
three (3) Business Days after the occurrence of the Force
Majeure, gives the other Party written notice describing the
particulars of the occurrence;
(b) the suspension of performance shall be of no greater scope and
of no longer duration than is reasonably required by the Force
Majeure; and
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(c) the non-performing Party uses due diligence to remedy its
inability to perform.
In the event of a Force Majeure, Buyer is not excused from making payment for
those Products received under this Agreement from the Facilities, except as
expressly provided in Section 5.7 as to a particular Facility affected by the
Force Majeure.
ARTICLE NINE
EVENTS OF DEFAULT; REMEDIES
9.1 EVENTS OF DEFAULT. An "Event of Default" shall mean, with respect to a
Party, which shall include Northeast Utilities in the case of the Buyer,
("Defaulting Party"), the occurrence of any of the following:
(a) the failure to make, when due, any payment required pursuant
to this Agreement if such failure is not remedied within three (3)
Business Days after written notice of such failure is given by the
other Party;
(b) any representation or warranty made by the Defaulting Party
herein (or, in the case of Northeast Utilities, the NU Guaranty) shall
be false or misleading in any material respect when made or when deemed
to be repeated;
(c) the failure of a Party to perform any other material covenant
set forth in this Agreement, or the failure of Northeast Utilities to
perform any material covenant set forth in the NU Guaranty, and such
failure is not cured within forty-five (45) Business Days after written
notice of such failure is given by the other Party;
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(d) a Party (or, in the case of Buyer, Northeast Utilities) shall
be Bankrupt;
(e) a Party or any guarantor of such Party consolidates or
amalgamates with, or merges with or into, or transfers all or
substantially all of its assets to, another entity and, at the time of
such consolidation, amalgamation, merger or transfer, the resulting,
surviving or transferee entity fails to assume all the obligations of
such Party to which it or its predecessor was a party by operation of
law and pursuant to an agreement reasonably satisfactory to the other
Party.
(f) any provision of the NU Guaranty shall cease to be valid and
binding on or enforceable against Northeast Utilities, or Northeast
Utilities shall so state in writing.
9.2 DECLARATION OF AN EARLY TERMINATION. After the occurrence and during
the continuance of an Event of Default, with respect to a Defaulting Party, the
other Party (the "Non-Defaulting Party") shall have the right, but not the
obligation, to designate a day, no earlier than the day such notice is effective
and no later than 30 days after such notice is effective as an early termination
date ("Early Termination Date") to terminate this Agreement, provided, however,
that the Buyer shall not terminate this Agreement if the Defaulting Party is the
Seller and the Seller is continuing to produce, sell and deliver the Products to
Buyer, including, without limitation, in the case of a bankruptcy of Seller.
9.3 SUSPENSION OF PERFORMANCE. Notwithstanding any other provision of this
Agreement, after the occurrence of an Event of Default specified in Section 9.1,
or an event which, with the giving of notice or the passage of
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time or both, would constitute an Event of Default, the Non-Defaulting Party
shall have the right (1) to suspend performance under this Agreement; provided,
however, that the Buyer shall not suspend performance under this Agreement if
the Defaulting Party is the Seller and the Seller is continuing to produce, sell
and deliver the Products to Buyer; (2) to take such commercially reasonable
steps as appropriate to protect such Party's interests, and (3) to exercise any
remedy available at law or in equity.
ARTICLE TEN
PAYMENT
10.1 PAYMENT. Except as otherwise provided herein in Sections 5.7 and 5.8,
in exchange for the Buyer's Entitlement, Buyer shall pay to Seller each month of
the Term, the amount calculated in accordance with Schedule 2 hereto, and Buyer
shall pay to Seller annually during the Term, or Seller shall credit Buyer, as
appropriate, the Incentive Payment described in Section 5.11. In addition, Buyer
shall reimburse Seller for all costs of Station Service charged to Seller.
10.2 BILLING PERIOD. Unless otherwise specifically agreed upon by the
Parties, the calendar month shall be the standard period for all payments under
this Agreement.
10.3 BILLING AND PAYMENTS. As soon as practicable after the end of each
month, Seller shall provide Buyer with a statement for the payment obligations,
if any, incurred hereunder during the preceding month, prorated as necessary.
Such statement shall be due and payable, in accordance with Seller's
instructions, on or before the later of the twentieth (20th) day of each month,
or ten (10) days after receipt of such statement ("Due Date"). The Buyer will
make payments by wire transfer, or by other mutually agreeable method(s), to the
account designated by the Seller. In the event that, for any
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month, Seller's credit to Buyer exceeds Buyer's payment to Seller, Seller shall
apply such credit plus interest accrued thereon against Buyer's next following
statement. Any amounts, both principal and interest, not paid by the Due Date
will be deemed delinquent and will accrue interest at the Interest Rate, such
interest to be calculated from the Due Date to the date the unpaid amount is
paid in full.
10.4. DISPUTES AND ADJUSTMENTS OF STATEMENTS. A Party may, in good faith,
challenge the correctness of any statement rendered under the Agreement or
adjust any statement for any arithmetic or computational error within twelve
(12) months of the date the statement was rendered. In the event a statement or
portion thereof, or any other claim or adjustment arising hereunder, is
challenged, payment of the statement in full shall be made when due, with notice
of the objection as to the disputed portion given to the other Party at the same
time. Any billing challenge or billing adjustment shall be in writing and shall
state the specific basis for the challenge or adjustment. If it is determined
that an adjustment to the statement is appropriate, then such payment shall be
made within two (2) Business Days of such determination along with interest
accrued at the Interest Rate from the Due Date until the date paid. Inadvertent
overpayments shall be returned by Seller upon request or deducted by Seller, at
Seller's option, from subsequent payments, with interest accrued at the Interest
Rate from the date of such overpayment until the date repaid or deducted by
Seller. A statement rendered under the Agreement shall be binding unless
challenged in accordance with this Section 10.4 within twelve (12) months after
the statement is rendered or any specific adjustment to the statement made by
such Party prior to such time.
ARTICLE ELEVEN
LIABILITY AND INDEMNIFICATION
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11.1 LIMITATION OF REMEDIES, LIABILITY AND DAMAGES. The Parties confirm that
the express remedies provided in this Agreement satisfy the essential purposes
hereof. For breach of any provision for which an express remedy is provided in
this Agreement, such express remedy shall be the sole and exclusive remedy, the
obligor's liability shall be limited as set forth in such provision and all
other remedies or damages at law or in equity are waived. If no remedy or
measure of damages is expressly provided herein, the obligor's liability shall
be limited to direct actual damages only, such direct actual damages shall be
the sole and exclusive remedy and all other remedies or damages at law or in
equity are waived. Unless expressly herein provided, neither Party shall be
liable for consequential, incidental, punitive, exemplary or indirect damages,
lost profits or other business interruption damages, by statute, in tort or
contract, under any indemnity provision or otherwise.
11.2 LIABILITY OF THE PARTIES. This Agreement shall not be interpreted to
result in any responsibility by Seller to Buyer in tort, contract, or otherwise,
for any damages which may result from the non-negligent or non-intentional
interruption or failure of service or deficiencies in the quality or quantity of
service hereunder. It is the intent of the Parties that Buyer shall assume the
risks of interruption, failure or deficiency in quality or quantity of service
to the same extent as if Buyer were itself operating the Facility, employing
Good Utility Practice, for the purpose of supplying itself with electricity.
11.3 LIABILITY FOR THIRD PARTY CLAIMS.
(a) Seller shall be liable for all damages, losses, claims, demands, suits,
judgments, recoveries, liabilities, costs and expenses (including court costs
and reasonable attorneys' fees) asserted by third parties resulting from the
operation and maintenance of the Facilities, storage and handling of fuels
and/or from Seller's or Seller's Operating Agent's failure to perform its
obligations under this Agreement. Seller shall indemnify and save harmless
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Buyer and its officers, directors, employees, agents or representatives from any
such damages losses, claims, demands, suits, judgments, recoveries, costs and
expenses, except to the extent that any such damages, losses, claims, demands,
suits, judgments, recoveries, costs and expenses result in whole or in part from
the gross negligence or willful misconduct of Buyer.
(b) Buyer shall be liable for all damages, losses, claims, demands, suits,
judgments, recoveries, liabilities, costs and expenses (including court costs
and reasonable attorneys' fees) asserted by third parties resulting from its
failure to perform its obligations under this Agreement. Buyer shall indemnify
and save harmless Seller and its officers, directors, employees, agents or
representatives from any such damages losses, claims, demands, suits, judgments,
recoveries, costs and expenses, except to the extent that any such damages,
losses, claims, demands, suits, judgments, recoveries, costs and expenses result
in whole or in part from the gross negligence or willful misconduct of Seller.
(c) For purposes of the indemnification provisions of Sections 11.3 (a) and (b),
the phrase "damages, losses, claims, demands, suits, judgments, recoveries,
liabilities, costs and expenses": shall include any penalties or charges imposed
by ISO-NE on an indemnified Party as a sanction for violation of such Party's
applicable obligations, to the extent such imposition of penalties or charges
arise out of the fraud, negligence, or willful misconduct of, or the violation
of any NEPOOL Standards (including NEPOOL Market Rules) by, the indemnifying
Party relating to Products delivered by Seller to Buyer hereunder.
ARTICLE TWELVE
DISPUTE RESOLUTION
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12.1 STEP NEGOTIATION. In the event of a dispute regarding this Agreement,
the Parties shall attempt, in good faith, to resolve the dispute amicably and
promptly by appointing a senior executive of each Party to attempt to mutually
agree upon a resolution. Either Party may give the other Party written notice of
any dispute or claim. Within ten (10) days after delivery of said notice, the
executives will meet at a mutually acceptable time and place and thereafter as
often as they reasonably deem necessary to exchange information and attempt to
resolve the dispute or claim within thirty (30) days. If the two senior
executives cannot reach a resolution, the dispute may be set for arbitration as
defined herein; provided, however, any dispute which lies within the exclusive
jurisdiction of the FERC shall not be submitted to arbitration.
12.2 ARBITRATION. If the senior executives of the Parties are unable to
resolve the dispute, and adjudication of the dispute is not within the exclusive
jurisdiction of the FERC, the dispute may be submitted upon request of either
Party to binding arbitration by one arbitrator who has not previously been
employed by either Party, and does not have a direct or indirect interest in
either Party or the subject matter of the arbitration. Such arbitrator shall
either be as mutually agreed by the Parties within thirty (30) days after
written notice from either Party requesting arbitration, or failing agreement,
shall be selected under the expedited rules of the American Arbitration
Association (the "AAA") unless otherwise agreed by the Parties. Such arbitration
shall be held in alternating locations of the home offices of the Parties or in
any other mutually agreed upon location. The rules of the AAA shall apply to the
extent not inconsistent with the rules herein specified. The judgment rendered
by the arbitrator may be enforced in any court having jurisdiction of the
subject matter and the Parties. All costs of the arbitration shall be paid
equally by the Parties, unless the award shall specify a different division of
the costs. Each Party shall be responsible for its own expenses, including
attorney's fees. Both Parties shall be afforded
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adequate opportunity to present information in support of its position on the
dispute being arbitrated. The arbitrator may also request additional information
from the Parties.
12.3 ARBITRATION RULES. The arbitrator shall be bound by the terms of this
Agreement and may not detract from or add to its terms. The Parties may by
mutual agreement specify the rules that are to govern the arbitration
proceedings and limit the matters to be considered. The findings and award of
the arbitrator shall be final and conclusive and shall be binding upon the
Parties, except as otherwise provided by law. Each Party agrees that it will not
bring a lawsuit concerning any dispute covered by this arbitration provision.
Any monetary award of the arbitrator may be enforced by the Party in whose favor
such monetary award is made in any court of competent jurisdiction.
ARTICLE THIRTEEN
MISCELLANEOUS
13.1 REPRESENTATIONS AND WARRANTIES On the Effective Date, each Party
represents and warrants to the other Party that: (i) it is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation, (ii) it has all regulatory authorizations necessary for it to legally
perform its obligations under this Agreement (including but not limited to FERC
licensing requirements) and any other documentation relating to this Agreement
to which it is a party, (iii) the execution, delivery and performance of this
Agreement and any other documentation relating to this Agreement to which it is
a party are within its powers, have been duly authorized by all necessary action
and do not violate any of the terms and conditions in its governing documents,
any contracts to which it is a party or any law, rule, regulation, order or the
like applicable to it, (iv) this Agreement and each other document executed and
delivered in accordance
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with this Agreement constitutes its legally valid and binding obligation
enforceable against it in accordance with its terms, (v) there are no Bankruptcy
Proceedings pending or being contemplated by it or, to its knowledge, threatened
against it, (vi) there is not pending or, to its knowledge, threatened against
it or any of its affiliates any legal proceedings that could materially
adversely affect its ability to perform its obligations under this Agreement or
any other document relating to this Agreement to which it is a party, (vii) no
Event of Default or event which, absent a cure, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to it
has occurred and is continuing and no such event or circumstance would occur as
a result of its entering into or performing its obligations under this Agreement
or any other document relating to this Agreement, (viii) it is acting for its
own account, has made its own independent decision to enter into this Agreement
and as to whether it is appropriate or proper for it based upon its own
judgment, is not relying upon the advice or recommendations of the other Party
in so doing, and is capable of assessing the merits of and understanding, and
understands and accepts, the terms, conditions and risks of this Agreement, and
the material economic terms hereof were subject to individual negotiation by the
Parties; (ix) it is a producer, processor, commercial user or merchant trading
electricity, and it is entering into this Agreement for purposes related to its
business as such; (x) and it has entered into this Agreement in connection with
the conduct of its business and it has the capacity or ability to make or take
delivery of the Products specified herein.
13.2 ASSIGNMENT. Neither Party shall assign this Agreement or its rights or
obligations hereunder without the prior written consent of the other Party (such
consent not to be unreasonably withheld); except that (a) Seller may, without
the consent of Buyer (and without relieving itself from liability hereunder),
(i) transfer, sell, pledge, encumber or assign this Agreement or the accounts,
revenues or proceeds hereof in connection with any financing or
-30-
other financial arrangements, (ii) transfer or assign this Agreement to an
affiliate of such Party in the same holding company system of the transferring
or assigning Party, or (iii) transfer or assign this Agreement to any person or
entity succeeding to all or substantially all of the assets of such Party; and
(b) Buyer may, without the consent of Seller (and without relieving itself from
liability hereunder), (i) transfer or assign this Agreement to an affiliate or
subsidiary of Consolidated Edison, Inc. in the same holding company system of
the Buyer, or (ii) transfer or assign this Agreement to Consolidated Edison,
Inc., its affiliate or subsidiary that succeeds to all or substantially all of
the assets of the Buyer; provided, however, that in each such case, any such
assignee shall agree in writing to be bound by the terms and conditions hereof.
Any Party's transfer or assignment in violation of this section shall be void.
13.3 CHOICE OF LAW AND JURISDICTION. THIS AGREEMENT AND THE RIGHTS AND
DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND
PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each Party waives its respective right
to any jury trial with respect to any litigation arising under or in connection
with this Agreement.
13.4 APPLICABLE LAWS, REGULATIONS, ORDERS, APPROVALS AND PERMITS. This
Agreement is made subject to all existing or future applicable federal, state,
and local laws and to all existing or future duly promulgated orders or other
duly authorized actions of governmental authorities having jurisdiction over the
matters contained in this Agreement. Seller's obligation to provide the Products
hereunder is subject to the condition that all requisite governmental and
regulatory approvals for the provision of such service will have been obtained.
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13.5 NOTICES. All notices, requests, statements, or payments required to be
made under this Agreement shall be made as specified below. Notices required to
be in writing shall be delivered in person, by letter, facsimile or other
documentary form. Notice by facsimile or hand delivery shall be deemed to have
been received by the close of the Business Day on which it was transmitted or
hand delivered (unless transmitted or hand delivered after close, in which case
it shall be deemed received by the close of the next Business Day). Notice by
overnight mail or courier shall be deemed to have been received the next
Business Day after it was sent. A Party may change its addresses by providing
notice of same in accordance herewith:
TO SELLER:
NOTICES & CORRESPONDENCE: PAYMENTS:
------------------------ --------
Xxxx X. Xxxxx For Wire Transfers:
Vice President and Controller Fleet National Bank
Northeast Generation Company Xxx Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000 ABA # 000000000
Tel: (000) 000-0000 For Northeast Generation
Fax: (000) 000-0000 Company
Account # [ ]
STATEMENTS:
----------
Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Manager - Wholesale Power Contracts
TO BUYER:
NOTICES & CORRESPONDENCE: PAYMENTS:
------------------------ --------
Xxxxx X. Xxxxxxxx For Wire Transfers:
Senior Vice President - Power Marketing Fleet National Bank
Select Energy, Inc. Xxx Xxxxxxx Xxxxxx
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000 Xxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000 ABA # 000000000
Tel: (000) 000-0000 For Select Energy, Inc.
Fax: (000) 000-0000 Account # [ ]
STATEMENTS:
----------
Northeast Utilities Service Company
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Manager - Wholesale Power Contracts
13.6 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement (including the
Schedules hereto) constitute the entire agreement between the Parties relating
to the subject matter contemplated by this Agreement, and upon execution,
supersedes the "Select Energy, Inc. and NGC Forward Power Purchase and Sales
Agreement" dated as of October 28, 1999. This Agreement shall be considered for
all purposes as prepared through the joint efforts of the parties and shall not
be construed against one party or the other as a result of the preparation,
substitution, submission or other event of negotiation, drafting or execution
hereof. No amendment or modification to this Agreement shall be enforceable
unless reduced to writing and executed by both Parties.
13.7 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the Parties and their
respective permitted successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to either Party, nor to give any third persons any right of subrogation
or action against either Party.
13.8 WAIVERS. The failure of either Party hereto to enforce at any time any
provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this Agreement or any part
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hereof or the right of a Party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to constitute
a waiver of any other or subsequent breach.
13.9 PARTIAL INVALIDITY. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law,
and any provision declared or rendered unlawful by any applicable court of law
or regulatory agency or deemed unlawful because of a statutory change will not
otherwise affect the remaining lawful obligations that arise under this
Agreement, unless such a construction of the remainder of the Agreement would be
unreasonable or deprive a Party of a material benefit under this Agreement. In
such event, the Parties shall seek to amend this Agreement to remove the invalid
provision and otherwise provide the benefit unless prohibited by law.
13.10 SURVIVING RIGHTS. All indemnity and audit rights shall survive the
termination of this Agreement for twelve (12) months.
13.11 ACCOUNTS AND RECORDS. Each Party shall maintain such records of its
operations under this Agreement as shall be required for reasonable business
purposes and to satisfy their contractual requirements to others. Each Party has
the right, at its sole expense and during normal working hours, to examine the
records of the other Party to the extent reasonably necessary to verify the
accuracy of any statement, charge or computation made pursuant to this
Agreement. If requested, a Party shall provide to the other Party statements
evidencing the Quantity. If any such examination reveals any inaccuracy in any
statement, the necessary adjustments in such statement and the payments thereof
will be made promptly and shall bear interest calculated at the Interest Rate
from the date the overpayment or underpayment was made until paid; provided,
however, that no adjustment for any statement or payment will be made unless
objection to the accuracy
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thereof was made prior to the lapse of twelve (12) months from the rendition
thereof.
13.12 CHANGES TO THE AGREEMENT . This Agreement shall be changed solely by
written amendment executed by both Parties. It is the intent of the Parties that
this Agreement shall not be subject to change pursuant to Section 206 of the
Federal Power Act except where the Commission determines pursuant to Section 206
that such change is required by the public interest.
13.13 INDEPENDENT CONTRACTORS. The Parties are independent contractors.
Except as otherwise specified in this Agreement, nothing contained herein shall
be deemed to create association, joint venture, partnership or principal/agent
relationship) between the Parties hereto or impose any partnership obligation or
liability on either Party, and neither Party shall have any right, power or
authority to enter into any agreement or commitment, act on behalf of or
otherwise bind the other Party in any way.
ARTICLE FOURTEEN
OPERATING COMMITTEE
14.1 ESTABLISHMENT. The Parties agree to establish an Operating Committee
consisting of one (1) representative of each Party and one representative of the
Seller's Operating Agent, if one has been designated. The Operating Committee
shall act only by unanimous agreement or consent of the Parties, without vote by
the Operating Agent. Each Party shall designate its respective representative to
the Operating Committee, plus an alternate, by written notice delivered in
accordance with Section 13.5. Each Party's representative on the Operating
Committee is authorized to act on
-35-
behalf of such Party with respect to any matter arising under this Agreement.
14.2 GUIDELINES. The Operating Committee shall develop and implement
suitable operating, maintenance, outage and capability reporting, accounting,
and record-keeping policies and procedures to coordinate and facilitate the
activities of the Parties with respect to the performance of their duties and
obligations hereunder, including the parameters for the development of an annual
Incentive Payment, as further described in Section 5.11. The Operating Committee
shall not, however, have any authority to modify or otherwise alter the rights
and obligations of the Parties under this Agreement.
[THIS PORTION OF THE PAGE IS LEFT INTENTIONALLY BLANK FOR SIGNATURES TO
APPEAR ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
NORTHEAST GENERATION COMPANY SELECT ENERGY, INC.
By: _____________________________ By: _______________________
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Controller Title: Senior Vice President -
Power Marketing
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SCHEDULE 1
YEAR 2000
-----------------------------------------------------------------------------------------------------------------------------------
PRICE PRICE DELIVERY POINT
FACILITIES ($/MWH) ($/kW-YEAR) (PTF SUBSTATION)
-----------------------------------------------------------------------------------------------------------------------------------
HOUSATONIC HYDROELECTRIC SYSTEM
Falls Village 1-3 32.50 8.88 CL&P PTF (69-kV bus at Falls Village 9A substation)
Rocky River 1-3 32.50 8.88 CL&P PTF (115-kV bus at Rocky River substation)
Bulls Bridge 1-6 32.50 8.88 CL&P PTF (115-kV bus at Rocky River 12Y substation)
Shepaug 32.50 8.88 CL&P PTF (115-kV line tap structures outside of Stony Hill 48C
substation In Brookfield, CT)
Xxxxxxxxx 1-4 32.50 8.88 CL&P PTF (115-kV bus at Xxxxxxxxx 14A substation)
Roberstville 1-2 32.50 8.88 CL&P PTF (115-kV bus at Campville 14R substation)
Bantam 32.50 8.88 CL&P PTF (115-kV bus at Campville 14R substation)
EASTERN HYDROELECTRIC SYSTEM
Tunnel 1-2 32.50 8.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Taftville 1-5 32.50 8.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Scotland 32.50 8.88 CL&P PTF (115-kV bus at Card 11F or Tunnel 12S substations)
Tunnel ICU 0.00 36.50 CL&P PTF (115-kV bus at Tunnel 12S substation)
NORTHFIELD MOUNTAIN HYDROELECTRIC
SYSTEM
Northfield Mt. Unit 1 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 2 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 3 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 4 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Cabot 1-6 32.50 8.88 WMECo PTF (115-kV bus at Montague 21C substation)
Turners Falls # 1-3, 5,7 32.50 8.88 WMECo PTF (115-kV bus at Montague 21C substation)
-----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 1
YEAR 2001
-----------------------------------------------------------------------------------------------------------------------------------
PRICE PRICE DELIVERY POINT
FACILITIES ($/MWH) ($/kW-YEAR) (PTF SUBSTATION)
-----------------------------------------------------------------------------------------------------------------------------------
HOUSATONIC HYDROELECTRIC SYSTEM
Falls Village 1-3 33.10 14.76 CL&P PTF (69-kV bus at Falls Village 9A substation)
Rocky River 1-3 33.10 14.76 CL&P PTF (115-kV bus at Rocky River substation)
Bulls Bridge 1-6 33.10 14.76 CL&P PTF (115-kV bus at Rocky River 12Y substation)
Shepaug 33.10 14.76 CL&P PTF (115-kV line tap structures outside of Stony Hill 48C
substation In Brookfield, CT)
Xxxxxxxxx 1-4 33.10 14.76 CL&P PTF (115-kV bus at Xxxxxxxxx 14A substation)
Roberstville 1-2 33.10 14.76 CL&P PTF (115-kV bus at Campville 14R substation)
Bantam 33.10 14.76 CL&P PTF (115-kV bus at Campville 14R substation)
EASTERN HYDROELECTRIC SYSTEM
Tunnel 1-2 33.10 14.76 CL&P PTF (115-kV bus at Tunnel 12S substation)
Taftville 1-5 33.10 14.76 CL&P PTF (115-kV bus at Tunnel 12S substation)
Scotland 33.10 14.76 CL&P PTF (115-kV bus at Card 11F or Tunnel 12S substations)
Tunnel ICU 0.00 42.50 CL&P PTF (115-kV bus at Tunnel 12S substation)
NORTHFIELD MOUNTAIN HYDROELECTRIC
SYSTEM
Northfield Mt. Unit 1 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 2 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 3 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 4 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Cabot 1-6 33.10 14.76 WMECo PTF (115-kV bus at Montague 21C substation)
Turners Falls # 1-3, 5,7 33.10 14.76 WMECo PTF (115-kV bus at Montague 21C substation)
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SCHEDULE 1
YEAR 2002
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PRICE PRICE DELIVERY POINT
FACILITIES ($/MWH) ($/kW-YEAR) (PTF SUBSTATION)
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HOUSATONIC HYDROELECTRIC SYSTEM
Falls Village 1-3 34.10 21.12 CL&P PTF (69-kV bus at Falls Village 9A substation)
Rocky River 1-3 34.10 21.12 CL&P PTF (115-kV bus at Rocky River substation)
Bulls Bridge 1-6 34.10 21.12 CL&P PTF (115-kV bus at Rocky River 12Y substation)
Shepaug 34.10 21.12 CL&P PTF (115-kV line tap structures outside of Stony Hill 48C
substation In Brookfield, CT)
Xxxxxxxxx 1-4 34.10 21.12 CL&P PTF (115-kV bus at Xxxxxxxxx 14A substation)
Roberstville 1-2 34.10 21.12 CL&P PTF (115-kV bus at Campville 14R substation)
Bantam 34.10 21.12 CL&P PTF (115-kV bus at Campville 14R substation)
EASTERN HYDROELECTRIC SYSTEM
Tunnel 1-2 34.10 21.12 CL&P PTF (115-kV bus at Tunnel 12S substation)
Taftville 1-5 34.10 21.12 CL&P PTF (115-kV bus at Tunnel 12S substation)
Scotland 34.10 21.12 CL&P PTF (115-kV bus at Card 11F or Tunnel 12S substations)
Tunnel ICU 0.00 48.50 CL&P PTF (115-kV bus at Tunnel 12S substation)
NORTHFIELD MOUNTAIN HYDROELECTRIC
SYSTEM
Northfield Mt. Unit 1 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 2 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 3 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 4 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Cabot 1-6 34.10 21.12 WMECo PTF (115-kV bus at Montague 21C substation)
Turners Falls # 1-3, 5,7 34.10 21.12 WMECo PTF (115-kV bus at Montague 21C substation)
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SCHEDULE 1
YEAR 2003
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PRICE PRICE DELIVERY POINT
FACILITIES ($/MWH) ($/kW-YEAR) (PTF SUBSTATION)
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HOUSATONIC HYDROELECTRIC SYSTEM
Falls Village 1-3 34.70 29.88 CL&P PTF (69-kV bus at Falls Village 9A substation)
Rocky River 1-3 34.70 29.88 CL&P PTF (115-kV bus at Rocky River substation)
Bulls Bridge 1-6 34.70 29.88 CL&P PTF (115-kV bus at Rocky River 12Y substation)
Shepaug 34.70 29.88 CL&P PTF (115-kV line tap structures outside of Stony Hill 48C
substation In Brookfield, CT)
Xxxxxxxxx 1-4 34.70 29.88 CL&P PTF (115-kV bus at Xxxxxxxxx 14A substation)
Roberstville 1-2 34.70 29.88 CL&P PTF (115-kV bus at Campville 14R substation)
Bantam 34.70 29.88 CL&P PTF (115-kV bus at Campville 14R substation)
EASTERN HYDROELECTRIC SYSTEM
Tunnel 1-2 34.70 29.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Taftville 1-5 34.70 29.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Scotland 34.70 29.88 CL&P PTF (115-kV bus at Card 11F or Tunnel 12S substations)
Tunnel ICU 0.00 56.50 CL&P PTF (115-kV bus at Tunnel 12S substation)
NORTHFIELD MOUNTAIN HYDROELECTRIC
SYSTEM
Northfield Mt. Unit 1 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 2 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 3 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 4 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Cabot 1-6 34.70 29.88 WMECo PTF (115-kV bus at Montague 21C substation)
Turners Falls # 1-3, 5,7 34.70 29.88 WMECo PTF (115-kV bus at Montague 21C substation)
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SCHEDULE 1
YEAR 2004
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PRICE PRICE DELIVERY POINT
FACILITIES ($/MWH) ($/kW-YEAR) (PTF SUBSTATION)
-----------------------------------------------------------------------------------------------------------------------------------
HOUSATONIC HYDROELECTRIC SYSTEM
Falls Village 1-3 34.70 29.88 CL&P PTF (69-kV bus at Falls Village 9A substation)
Rocky River 1-3 34.70 29.88 CL&P PTF (115-kV bus at Rocky River substation)
Bulls Bridge 1-6 34.70 29.88 CL&P PTF (115-kV bus at Rocky River 12Y substation)
Shepaug 34.70 29.88 CL&P PTF (115-kV line tap structures outside of Stony Hill 48C
substation In Brookfield, CT)
Xxxxxxxxx 1-4 34.70 29.88 CL&P PTF (115-kV bus at Xxxxxxxxx 14A substation)
Roberstville 1-2 34.70 29.88 CL&P PTF (115-kV bus at Campville 14R substation)
Bantam 34.70 29.88 CL&P PTF (115-kV bus at Campville 14R substation)
EASTERN HYDROELECTRIC SYSTEM
Tunnel 1-2 34.70 29.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Taftville 1-5 34.70 29.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Scotland 34.70 29.88 CL&P PTF (115-kV bus at Card 11F or Tunnel 12S substations)
Tunnel ICU 0.00 56.50 CL&P PTF (115-kV bus at Tunnel 12S substation)
NORTHFIELD MOUNTAIN HYDROELECTRIC
SYSTEM
Northfield Mt. Unit 1 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 2 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 3 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 4 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Cabot 1-6 34.70 29.88 WMECo PTF (115-kV bus at Montague 21C substation)
Turners Falls # 1-3, 5,7 34.70 29.88 WMECo PTF (115-kV bus at Montague 21C substation)
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SCHEDULE 1
YEAR 2005
-----------------------------------------------------------------------------------------------------------------------------------
PRICE PRICE DELIVERY POINT
FACILITIES ($/MWH) ($/kW-YEAR) (PTF SUBSTATION)
-----------------------------------------------------------------------------------------------------------------------------------
HOUSATONIC HYDROELECTRIC SYSTEM
Falls Village 1-3 34.70 29.88 CL&P PTF (69-kV bus at Falls Village 9A substation)
Rocky River 1-3 34.70 29.88 CL&P PTF (115-kV bus at Rocky River substation)
Bulls Bridge 1-6 34.70 29.88 CL&P PTF (115-kV bus at Rocky River 12Y substation)
Shepaug 34.70 29.88 CL&P PTF (115-kV line tap structures outside of Stony Hill 48C
substation In Brookfield, CT)
Xxxxxxxxx 1-4 34.70 29.88 CL&P PTF (115-kV bus at Xxxxxxxxx 14A substation)
Roberstville 1-2 34.70 29.88 CL&P PTF (115-kV bus at Campville 14R substation)
Bantam 34.70 29.88 CL&P PTF (115-kV bus at Campville 14R substation)
EASTERN HYDROELECTRIC SYSTEM
Tunnel 1-2 34.70 29.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Taftville 1-5 34.70 29.88 CL&P PTF (115-kV bus at Tunnel 12S substation)
Scotland 34.70 29.88 CL&P PTF (115-kV bus at Card 11F or Tunnel 12S substations)
Tunnel ICU 0.00 56.50 CL&P PTF (115-kV bus at Tunnel 12S substation)
NORTHFIELD MOUNTAIN HYDROELECTRIC
SYSTEM
Northfield Mt. Unit 1 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 2 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 3 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Northfield Mt. Unit 4 0.00 103.70 WMECo PTF (345-kV bus at Northfield Mountain 16R Switchyard)
Cabot 1-6 34.70 29.88 WMECo PTF (115-kV bus at Montague 21C substation)
Turners Falls # 1-3, 5,7 34.70 29.88 WMECo PTF (115-kV bus at Montague 21C substation)
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SCHEDULE 2
PAYMENT
In accordance with Article 10.1, Seller will render monthly invoices for
services under this Agreement to Buyer and Buyer shall pay Seller based on the
following formula, calculated by Facility:
Monthly Generation (MWH) as measured at the Metering Point multiplied by the
$/MWH price specified in Schedule 1.
PLUS
The Seasonal Claimed Capability, or its equivalent, of a Facility (in kW)
multiplied by the $/kW-year price specified in Schedule 1 divided by 12.
