EXHIBIT (10)(i) 109
THIS EXHIBIT CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
TRANSPORTATION CONTRACT
PURSUANT TO
CR-C-20710
This Transportation Contract made and concluded this 26th
day of November, 1996, by and between CONSOLIDATED RAIL
CORPORATION, (hereinafter CR), a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania and
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION (hereinafter CH), a
corporation organized and existing under the laws of the State of
New York, having its offices at 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx
XX.
1. TERM: The parties agree that the terms, and conditions
contained herein shall apply to shipments made pursuant to this
agreement as of January 1, 1997. The term of this Contract may
be extended only by written amendment. Unless terminated earlier
in accordance with the provisions herein, this Contract shall
remain in effect through December 31, 2001.
2. TRANSPORTATION RATES: CR agrees to transport coal from
the origins named via CR direct routing to CH's Danskammer
Station at Roseton, NY at the following rates:
Rate (Dollars Per Net Ton)
Origin 120 Cars 95 Cars
Buffalo, NY (NS Interchange) $ x.xx - - - - -
Hagerstown, MD (NS Interchange) $ x.xx $ x.xx
Lurgan, PA (CSXT Interchange) $ x.xx $ x.xx
Kanawha Rate District $xx.xx (1) - - - - -
Xxxxxx/Leetsdale River Terminals $xx.xx (1,2) $xx.xx (1,2)
(1) - xxxx xxx xxxxxx, xxxxxx xxxx xxxx xxxx xx xx xxxxxxxx xx xx
(2) - xxxx xxxxxxxx xxxxxxxx xx xxxx xxxx xxxxx xx xxxx xxx
xx xxxxx xxxxx xxxxxxxxx
3. CONSIGNMENT SIZE: Shipments made pursuant to this
Contract are subject to a minimum consignment of 9,000 net tons
received from one origin on one 24-hour day, except from
interchange at Buffalo NY and CR's Kanawha Rate District, the
minimum consignment will be 10,500 net tons. For shipments
received at Buffalo NY, Hagerstown MD or Lurgan PA, the rates are
only applicable to shipments received in a single block
unencumbered by cars not moving under the terms of this Contract.
In the event that less than the minimum consignment tons are
loaded, charges will be based on the minimum consignment tons.
However, if CH or the shipper orders equipment to load at least
the minimum consignment and all serviceable cars placed at the
origin are fully loaded, as provided in the next paragraph, the
charges will be based on the actual weight.
For the purpose of this Contract, fully loaded shall mean
loaded to the minimum weight of 90% of the official capacity of
the cars used. Official capacity will be that shown in the
Universal Machine Language Equipment Register (UMLER) File,
maintained by the Association of American Railroads (AAR).
CR will move shipments promptly, reliably and efficiently as
reasonably requested by CH.
4. WEIGHING: Shipment weights for billing purposes shall
be determined on CH's scales at destination which CH agrees to
allow CR or its agent to inspect periodically and approve for
accuracy in accordance with the AAR Scale Handbook and the
National Bureau of Standards Handbook 44.
In the absence of weighing by CH's destination scales,
weights for billing purposes shall be determined as follows:
a. by batch weigh systems at origin, or
b. by NS or CSXT Railroads for shipments loaded on their
respective railroads, or by CR for shipments loaded at
CR origins or at barge/rail terminals provided in
Article 2, or
c. by averaging the weights based on the last three train
deliveries
When weighing is performed by CR, the entire consignment
will be weighed and CH shall pay CR a charge of $30 per carload.
Such weighing by CR shall be performed only when arrangements for
such weighing can be made prior to the arrival of the consignment
at a CR certified scale.
5. ANNUAL VOLUME COMMITMENT: During the initial two-year
term of this Contract, January 1, 1997 to December 31, 1998, CH
agrees to ship a minimum volume of 240,000 net tons, annually,
from origins on CR's Kanawha rate district. Failure by Kanawha
rate district coal producers to meet this volume commitment will
be considered as a force majeure condition in addition to force
majeure conditions as stated in Section 9, and tons not shipped
due to force majeure will be deducted from the annual minimum
commitment.
Firm tonnage coal from the Kanawha rate district coal
producer not shipped because of CH's inability to utilize such
coal at its Danskammer Plant due to "economic reasons" or due to
the loss of a generating unit or units resulting from a forced
outage will be deducted from the annual volume commitment. For
the purposes as used herein, "economic reasons" is defined as
times when electrical energy is available to Buyer, either from
the Danskammer Plant when burning oil or natural gas or from any
other source, at a lower cost than equivalent electrical energy
which would otherwise be produced by burning "firm tonnage" coal.
Within thirty (30) days of the conclusion of each calendar
year, CH shall furnish to CR a statement indicating the number of
tons received during the calendar year as described above listed
by waybill and origin as well as the total bituminous coal
receipts at its Danskammer plant during that period.
If CH fails to meet the minimum annual volume commitment
described herein, CH shall pay CR a penalty charge of $3.00 per
net ton for the tonnage shortfall.
CH shall maintain records sufficient to document its
performance under this Contract and shall make such records
available for inspection by CR or its agent on reasonable notice
and during normal business hours.
6. RATE ADJUSTMENT: For the purpose of this Article, the
base rates will be the rates indicated in Article 2, and the base
weighing charge will be the charge indicated in Article 4. The
rates will be fixed and remain in effect through December 31,
1998.
Beginning July 1, 1998, and six months prior to the end of
the Contract Year thereafter, CR and CH shall commence good faith
negotiations with respect to the base rates for the next Contract
Year. This agreement shall terminate automatically, without
further obligation or liability to either party, at the end of
the initial term or at the end of any successive contract year
thereafter, unless the parties agree three months before the end
of the applicable Contract Year on these rates for the next
Contract year.
7. SHIPPING INSTRUCTIONS AND PAYMENT: CH shall cause to be
placed the following notation on all shipping instructions
prepared for shipments under this Contract "Shipped under
Contract Number CR-C-20710", and for shipments from Hagerstown
MD, Lurgan PA, and Buffalo NY, the additional notation "Rate to
(name CR origin) be handled under Accounting Rule 11. Charges
beyond to be on a collect basis per CR-C-20710".
Freight bills will be presented based on shipping
instructions as provided by shipper. Rates and charges
prescribed in this Contract apply in addition to all other
transportation, accessorial and/or demurrage charges which
lawfully apply at or between points named in Article 2. Payment
of such charges, and any other charges assessed pursuant to this
Contract, shall be made in accordance with CR's general credit
policy in effect at the time the particular transportation
service is performed, as published in tariff(s) lawfully filed.
In the absence of such tariff(s), payment shall be made in
accordance with Credit Regulations, 49 CFR 1320, which are in
effect at the time the particular transportation service is
performed. CR's acceptance of a partial payment containing a
restricted endorsement does not limit CH's obligation for payment
to CR of the full amount of rates and charges due under this
Contract.
8. EQUIPMENT SUPPLY AND CAR DETENTION:
A. These rates are applicable to shipments made in
bottom dump, open top xxxxxx cars and CR shall supply cars for
shipments originating at CR origins or barge/rail transfer
facilities. Additionally, CR agrees to transport all shipments
pursuant to this Contract with its locomotives or locomotives
under its control. However, CR shall have no greater or lesser
equipment supply obligation to CH than it has to any shipper who
does not have a contract with CR.
CH shall provide CR with a monthly loading
forecast of consignments to be shipped pursuant to this Contract.
This monthly forecast shall include the anticipated mine origins,
interchanges, loading dates and quantity for each consignment.
This forecast shall be provided orally to CR's Assistant
Director-Unit Train Network or a member of his staff in
Philadelphia PA during normal business hours excluding Saturdays,
Sundays, and Holidays no later than five days before the end of
the preceding month. Such notification shall be confirmed in
writing within 10 days forwarded to:
Assistant Director-Unit Train Network
Consolidated Rail Corporation
0000 Xxxxxx Xxxxxx - 00X
Xxxxxxxxxxxx XX 00000-0000
Any major unforeseen situation which results in
changes to the monthly forecast must be presented to the
Assistant Director-Unit Train Network or his staff as quickly as
possible. Additions to the monthly forecast must be made at
least seven (7) days prior to the scheduled loading dates, unless
otherwise approved.
B. Origin car demurrage is not the responsibility of
CH and is outside the scope of this Contract.
C. Destination car demurrage is subject to the terms
of Freight Tariff CR 4605-Series except that forty-eight (48)
hours free time will be allowed for trains consisting of 120 cars
as scheduled by CH.
9. FORCE MAJEURE: In the event that any party is unable to
perform as stated in this Contract due to or as a result of one
or more of the following causes: Act of God, including, but not
limited to floods, storms, earthquakes, hurricanes, tornadoes, or
other severe weather or climatic conditions; Act of public enemy,
war, blockade, insurrection, riot, vandalism or sabotage; fire,
accident, wreck, derailment, washout or explosion; strike,
lockout or labor dispute; embargoes or AAR service orders; or
governmental laws, orders or regulations, this Contract shall be
suspended at the affected origin(s) and/or destination only
insofar as said origin(s) and/or destination are affected by
described disability and only for the duration of such
disability. The percent of volume commitment which is included
in this Contract shall be suspended to the same extent that this
Contract is suspended, and the absolute amount of volume
commitment which is included in this Contract shall be reduced by
1096 tons per day for each day or portion thereof, of disability
under this Article.
The party experiencing the disability will send written
notice to the other party to this Contract, stating the contract
number and the location and nature of such disability. This
notice shall be sent within ten (10) days of the beginning of the
disability. Written notice shall also be sent within ten (10)
days of the end of such disability.
10. OMNIBUS AND LOSS AND DAMAGE CLAIMS: Rates named in
this Contract apply to the exclusion of rates published
elsewhere, except as otherwise provided in this Contract. Rates
named herein apply only from the origins to the destination named
via the routes shown herein and do not apply from or to
intermediate points. Except as otherwise provided in this
Contract, these rates involved only line-haul transportation and
may not be used in combination with other rates for the purpose
of shipping from or to points other than specifically named in
this Contract.
The rates in this Contract cover the transportation services
traditionally included in a railroad's line-haul rates, including
the placement of cars at origin (if the coal is loaded on CR) and
destination, removal and delivery of cars requiring maintenance
or repair, and the movement of cars to the origin for loading (if
origins are located on CR). However, any special or accessorial
services that CR is requested to provide in conjunction with the
involved line-haul transportation other than demurrage, and for
which a separate charge or rate is set forth in a duly filed
tariff or specified elsewhere in this Contract, are not included
in said line haul rate.
Except as otherwise provided in this Contract, all
classifications tariffs, exempt circulars, government, AAR, and
carriers' rules, regulations and provisions will apply to
shipments hereunder, provided, however, that no diversion,
reconsignment, stop-off or transit privilege will be permitted
unless such services are mutually agreed upon by CR and CH.
Loss and damage claims shall be handled in accordance with
the terms of the Uniform Straight Xxxx of Lading, 49 CFR Part
1005, and 49 U.S.C. 11707 (d) (2), except that in no case will CR
be liable for special consequential or punitive damages.
11. ABANDONMENT: In the event that CR, pursuant to
appropriate regulatory order abandons, sells or otherwise
disposes of (a) a line of railroad on which either CH power plant
or its coal suppliers are located, or (b) a line of railroad
which provides the only reasonable connection between the line on
which either CH's power plant or its coal suppliers are located
and other portions of the CR system, the provisions of this
Contract are inapplicable with respect to such line on and after
the date said CR line is abandoned, sold or otherwise disposed
of. CR shall notify CH in writing 180 days prior to (1) any
application to any federal or state regulatory agency to abandon,
sell or otherwise dispose of said CR line(s); and, (2) the
adoption by CR of any plans by CR to abandon, sell or otherwise
dispose of said CR line(s).
12. GROSS INEQUITY: It is the intent of the parties hereto
that each shall mutually benefit from the terms, conditions and
provisions of this Contract. In the event that any party shall
suffer a gross inequity resulting from a substantial change in
circumstances or conditions, the parties shall negotiate in good
faith to resolve or remove such gross inequity, provided,
however, that nothing herein shall be construed to relieve any
party of its obligations under this Contract.
13. CONFIDENTIALITY: Except to the extend that disclosure
of information contained in this Contract is required by law or
governing regulatory authority or by existing contracts CR may
have with other parties, the contents of this Contract shall
remain confidential and shall not be disclosed or released by any
party to this Contract, without written consent of the other
party to this Contract. Each party to this Contract shall make
all reasonable efforts to keep the contents of this Contract
confidential if such disclosure is required.
14. NOTICE PROVISION: Unless otherwise provided herein,
any notice required or permitted to be given in writing under the
terms, conditions and provisions of this Contract shall be
considered as having been given upon the hand delivery, faxing or
mailing thereof by first class mail to the office address of the
other party as set forth in this Contract or to such other
addresses as the parties may from time to time specify in
writing. A postal receipt showing the deposit of such notice by
registered or certified mail shall be evidence of the giving of
notice. Notice by mail shall be sent to the following:
Manager, Power Generation Markets-East
Consolidated Rail Corporation
0000 Xxxxxx Xxxxxx, 0X
Xxxxxxxxxxxx XX 00000-0000
Manager-Transportation Contracts
Consolidated Rail Corporation
0000 Xxxxxx Xxxxxx, 00X
Xxxxxxxxxxxx XX 00000-0000
Manager-Fuel Resources
Central Xxxxxx Gas and Electric Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx XX 00000
15. ASSIGNMENT: This Contract is not assignable in whole
or in part by one party with the prior written consent of the
other party. This Contract shall inure to and be binding upon
the parties hereto and their respective successors and permitted
assigns.
16. MODIFICATION: This Contract may not be modified except
by an express written agreement signed by the parties hereto.
17. GOVERNING LAW: This Contract shall be governed and
constructed in accordance with the laws of the State of New York,
except as otherwise stated herein.
18. GOVERNMENTAL LEGISLATION: CR and CH agree to recognize
the possibility that, during the term of this Contract, federal,
state or local legislative or regulatory bodies or the courts may
impose or enforce regulations, restrictions or standards, or
revise existing regulations, restrictions or standards which in
CH's sole discretion will make it impossible or impractical for
CH to utilize some or all of the coal thereafter to be delivered
at the Danskammer Plant. Such regulations or restrictions could
pertain to, but would not necessarily be limited to coal quality.
If any such regulations or restrictions are imposed and if as a
result thereof CH, in its sole discretion, decides that it will
be impossible or impractical for CH to utilize some or all of the
coal or other coal of similar quality, CH shall so advise CR. CH
shall have the right, upon written notice to CR to terminate this
Contract without further obligation to CR.
19. ELECTION TO TERMINATE: In the event that CH elects to
invoke Article 18 above, CH shall notify CR in writing and shall
state CH's election to terminate this Contract effective on a
specified date, which said date shall not be earlier than the
effective date of the implementation of such law, regulation or
order.
IN WITNESS THEREOF and intending to be legally bound, the
parties hereto have caused this Contract to be executed by their
duly authorized respective representatives on the day and year
first written above.
CENTRAL XXXXXX GAS AND ELECTRIC CORPORATION
BY: ______________________________________
XXXX X. XXXXX
TITLE: PRESIDENT AND CHIEF OPERATING OFFER
CONSOLIDATED RAIL CORPORATION
BY: ______________________________________
XXXXXXX X. XXXXX
TITLE: MANAGER-COAL MARKETING
