Exhibit 10.2
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SOUTHERN CALIFORNIA EDISON COMPANY
REFORMED STANDARD OFFER 1
AS-AVAILABLE CAPACITY AND ENERGY
POWER PURCHASE AGREEMENT
BETWEEN
SOUTHERN CALIFORNIA EDISON COMPANY
AND
PAMC MANAGEMENT CORPORATION
QFID NO. 6308
Pursuant To Decision No. 00-00-000
TABLE OF CONTENTS
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Section Title Page
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The Parties...........................................................1
Recitals..............................................................1
1 Project Summary.......................................................2
2 Definitions...........................................................6
3 Termination of Original Contract, Effective
Date and Termination of Agreement.....................................9
4 Project Fee...........................................................9
5 Project Development Milestones........................................9
6 Generating Facility..................................................11
7 Operating Options....................................................14
8 Interconnection Facilities...........................................15
9 Review and Disclaimer................................................16
10 Real Property Rights.................................................16
11 Metering.............................................................17
12 Qualifying Facility Status and Permits...............................19
13 Energy Purchase......................................................19
14 Capacity Purchase....................................................20
15 Curtailment..........................................................20
16 Interruption of Deliveries...........................................22
17 Payment and Billing..................................................22
18 Indemnity and Liability..............................................23
19 Insurance............................................................24
20 Force Majeure........................................................25
21 Review of Records and Data...........................................26
22 Assignment...........................................................26
23 Abandonment..........................................................26
24 Non-Dedication.......................................................27
25 Non-Waiver...........................................................27
26 Section Headings.....................................................27
27 Governing Law........................................................27
28 Amendment, Modification or Waiver....................................27
29 Several Obligations..................................................27
30 Signatures...........................................................28
Appendix A: Time of Delivery Periods
Appendix B: Southern California Edison Company's Tariff Rule Xx. 00
Xxxxxxxx X: Interconnection Facilities Agreement
Appendix D: Metrological Tower Side Letter
Southern California Edison Company
Reformed Standard Offer No. 1
As-Available Energy and Capacity Power Purchase Agreement
PARTIES
PAMC Management Corporation, a Colorado corporation, who is acting on its own
behalf and on behalf of all other owners of the Generating Facility and
seller(s) of electrical power generated by the Generating Facility,
(collectively, referred to as "Seller"), and Southern California Edison Company
("Edison" or "SCE"), a California corporation, referred to collectively as
"Parties" and individually as "Party", agree as follows:
RECITALS
This Agreement is made with reference to the following facts, among others:
X. Xxxxxx is a California investor-owned public utility corporation ("IOU").
B. Seller operates an electric power generation facility near Palm Springs,
California, which Seller represents and warrants, is a qualifying facility
("QF") under applicable regulations of the Federal Energy Regulatory
Commission.
C. On April 12, 1982, Edison and Mesa Wind Developers, as
successor-in-interest to Pan Aero Corporation ("Mesa Wind") entered into an
agreement entitled "Wind Park Power Purchase and Sales Agreement." The Wind
Park Power Purchase and Sales Agreement, as amended, is referred to herein
as the "Original Contract." The Original Contract is subject to termination
by any Party on five years written notice which shall not be given prior to
the expiration of fifteen (15) years from the Firm Operation of all
generating units. Such notice of termination was given by SCE to Seller on
June 23, 2000. On June 22, 2005, the Original Contract was assigned to PAMC
Management Corporation ("PAMC") pursuant to an Assignment of Power
Contract, dated as of June 22, 2005, between PAMC and Mesa Wind. Edison
consented to such assignment pursuant to that certain Consent Agreement,
dated as of June 22, 2005 between Edison and Mesa Wind.
D. On August 22, 2002, the CPUC issued Decision ("D.") No. 00-00-000, in which
it ordered Edison and other IOUs to make SO1 power purchase agreements
available to certain QFs that meet the requirements of that decision.
E. On or about December 22, 2003, the CPUC issued Decision 00-00-000 (the
"Short Term 2004 Procurement Decision"), in which it ordered that "QFs in
operation and under contract to provide power to an investor-owned utility
at any point between January 1, 1998 and December 18, 2003, whose contracts
are set to expire before January 1, 2005, shall be afforded interim
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treatment, consistent with that provided in D.00-00-000." Short Term 2004
Procurement Decision, Ordering Paragraph 14, mimeo at 88.
F. On or about January 26, 2004, the CPUC issued Decision 00-00-000 (the "Long
Term 2004 Procurement Decision"), in which it ordered that "[f]or
Qualifying Facilities (QF)s with existing contracts expiring before
December 31, 2005, the utilities shall offer five-year Standard Offer 1
(SO1) contracts at short-run avoided cost ("SRAC") prices." Long Term 2004
Procurement Decision, Ordering Paragraph 4, mimeo at 200.
G. For the reasons set forth in Edison's comments, reply comments and
applications for rehearing filed at the CPUC in Rulemaking 00-00-000
concerning the Short Term 2004 Procurement Decision and the Long Term 2004
Procurement Decision (collectively, the "2004 Procurement Decisions"),
Edison contends that the 2004 Procurement Decisions are unlawful insofar as
they require Edison to enter into this Agreement at a price exceeding that
permitted under applicable state and federal law. Edison has applied for
rehearing of the 2004 Procurement Decisions, which application was denied
by the CPUC. Edison has filed a petition for a writ of review before the
Court of Appeal, Second Appellate District, in connection with the 2004
Procurement Decisions. Edison reserves all rights and defenses with respect
this Agreement and the 2004 Procurement Decisions. Seller disputes that
pricing under this Agreement is unlawful and reserves its rights and
defenses with respect to this Agreement, including its right to oppose
Edison's petition for a writ of review or further review of the 2004
Procurement Decisions.
H. In addition, the Long Term 2004 Procurement Decision requires that SO1
contracts to be entered into thereunder include the provision that the
pricing terms may change if the CPUC subsequently modifies its policy on QF
pricing methodology. Long Term 2004 Procurement Decision, Ordering
Paragraph 4, mimeo at 194.
I. Uniform Standard Offer No. 1 ("USO1") as it existed on February 24, 1989,
does not in all respects conform to the requirements of D.00-00-000 or
changes of circumstances that have occurred since the adoption of USO1, and
therefore this Reformed Standard Offer No. 1 ("RSO1") was developed by
adding to, removing or modifying portions of USO1 to conform with
D.00-00-000 and changed circumstances.
J. To effectuate the foregoing decisions, and subject to their respective
positions as set forth above, the Parties desire to enter into this
Agreement.
AGREEMENT
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1. PROJECT SUMMARY
1.1 Seller's Generating Facility:
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(a) QFID Number: 6308
(b) Nameplate Rating: 30 MW. (Net of Station Use)
The Nameplate Rating may not exceed the nameplate rating agreed
to between Edison and Seller in the Original Contract referenced
in Section 1.1(e) below. Seller may not increase the Nameplate
Rating after Initial Operation.
(c) Location: Riverside County, California
Xxxx Xxxx: ~68 acres in Xxxxxxx 0, X.0X, X.0X., XXXX
Xxxxx Whitewater: ~409 acres in Sections 27, 33, and 34, T.2S.,
R.3E., SBBM
(d) Type: (Check One)
----- Cogeneration facility.
Natural Gas (primary energy source).
X Small power production facility.
-----
(primary energy source).
(e) Seller represents and warrants that it was in operation and under
contract to sell power to an IOU at some point in time between
January 1, 1998 and December 18, 2003, and that its contract to
provide such power expired or terminated, or will expire or is
set to terminate, before December 31, 2005. Edison may, at its
sole discretion, terminate this Agreement by written notice
effective immediately, in the event it learns of a breach of
Seller's representation and warranty in this Section 1.1(e).
Enter name of contracting IOU: SCE
Enter date of Original Contract expiration: The Parties agree
that the Original Contract shall be deemed terminated as of 12:01
a.m. on the Effective Date.
1.2 Expected annual energy deliveries: 71,000,000 kWh.
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1.3 [This section intentionally left blank].
1.4 [This section intentionally left blank].
1.5 Project Development Material Milestones:
(a) [This section intentionally left blank].
(b) [This section intentionally left blank].
(c) [This section intentionally left blank].
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1.6. Operating Options pursuant to Section 7: (Check One)
X Operating Option I (Buy/Sell): Entire Generating
-----
Facility output less Station output less Station Use
sold to Edison.
----- Operating Option II (Surplus Sale): The Generating
Facility output, less Station Use and any other use by
Seller, sold to Edison. Capacity allocated to other use
by Seller: ________ kW.
1.7 Metering Location: (Check one)
Seller selects metering location pursuant to Section 11 as follows:
X High-voltage side of the Interconnection Facilities
-----
transformer.
----- Low-voltage side of the Interconnection Facilities
transformer, with the transformer loss compensation factor
determined in accordance with Section 11.2.
1.8 Notices:
Any written notice, demand, or request required or authorized in
connection with this Agreement shall be deemed properly given if
delivered in person or sent by first class mail, postage prepaid, to
the person specified below:
Edison: Southern California Edison Company
Attention: Director, QF Resources Business Xxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Seller: PAMC Management Corporation
Attention: Xxxxxx Xxxxxx
00000 Xxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President
Telephone: 000-000-0000
Facsimile: 000-000-0000
Seller's notices to Edison pursuant to this Section 1.8 shall refer to
the QFID number set forth in Section 1.1(a). The designated addresses
for giving notice under this Agreement may be changed at any time upon
notice by the Party's authorized representative to the notice address
in effect at the time of the notice address change.
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1.9 Location of (Edison) Designated Switching Center:
Xxxxxx Switching Center
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1.10 Seller's arrangement includes Host(s): (Check one)
yes
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no X
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If yes, the following sections shall apply:
(a) Host(s): _____________________________
_____________________________
_____________________________
(b) Seller has made arrangements with Host(s) to: (Check one
or both)
a. ___ Deliver all or a portion of the ectrical output of the
Generating Facility to Host(s).
b. ___ Deliver useful thermal output from the Generating
Facility to Host(s).
(c) Seller shall, within ten (10) days of the Effective Date,
provide Edison with the name(s) and address(es) of
representative(s) of the Host(s) who is (are) authorized to act
on behalf of the Host(s) in matters related to the arrangement
identified in this Section 1.10. Seller shall notify Edison of
any change(s) of authorized representative(s) within ten (10)
days of being notified of such change.
(d) Any references to Host(s) contained in this Agreement are not
intended and shall not be construed to create any third party
rights or remedies.
1.11 Location of Edison Customer Service District Office:
Palm Springs District Office
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1.12 The Point of Delivery is as follows:
Existing 115 kV metering point at PanAero Substation
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2. DEFINITIONS
When italicized, whether in the singular or in the plural, the following
terms shall have the following meanings:
2.1 Agreement: This document and any written amendments which may be
agreed upon by the Parties from time-to-time.
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2.2 As-Available Capacity: The capacity delivered to Edison from the
Generating Facility that Edison is contractually obligated to
purchase at its published As-Available Capacity price as approved by
the CPUC.
2.3 CPUC: The Public Utilities Commission of the State of California.
2.4 Designated Switching Center: The Edison facility which is described
in Section 1.9.
2.5 Tariff Rule 21: The tariff setting forth Edison's interconnection
standards for cogenerators and small power producers interconnected
with the Edison system, as such tariff may be modified by the CPUC
from time-to-time. A copy of the current version of such tariff is
attached hereto as Appendix B and incorporated herein by reference.
2.6 Emergency: An actual or imminent condition or situation which, in
Edison's sole opinion, jeopardizes Edison Electric System Integrity
or the integrity of other systems to which Edison is connected; or
any condition so-defined and declared by the ISO.
2.7 Force Majeure: Any occurrence, other than Forced Outages, beyond the
reasonable control of and without the fault or negligence of the
Party claiming Force Majeure which causes the Party to be unable to
perform its obligations, which by exercise of due foresight such
Party could not reasonably have been expected to avoid and which the
Party is unable to overcome by the exercise of due diligence. Such
an occurrence may include, but is not limited to, acts of God, labor
disputes, sudden actions of the elements, actions or inactions by
federal, state, and municipal agencies, and actions or inactions of
legislative, judicial, or regulatory agencies.
2.8 Forced Outage: Any outage of the Generating Facility or Seller's
Interconnection Facilities resulting from a design defect, inadequate
construction, operator error, interruption in fuel supply unless
excused as a Force Majeure, or a breakdown of the mechanical or
electrical equipment that fully or partially curtails the electrical
output of the Generating Facility.
2.9 Generating Facility: All of Seller's generating units, together with
all protective and other associated equipment and improvements owned,
maintained, and operated by Seller, which are necessary to produce
electrical power, excluding associated land, land rights, and
interests in land.
2.10 Host(s): The entity or entities identified in Section 1.10 which will
accept: (a) useful thermal output of the cogenerator; (b) all or a
portion of the electric output of the Generating Facility; or (c)
both.
2.11 Initial Operation: The day that the Generating Facility delivers
electric power to the Point of Delivery under this Agreement.
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2.12 Interconnection Facilities: All means required, and apparatus
installed, to interconnect and deliver power from the Generating
Facility to the Point of Delivery by means of either the Edison
system or the ISO Grid, including, but not limited to, connection,
transformation, switching, metering, communications, control, and
safety equipment, such as equipment required to protect (a) the
Edison system (or other systems to which Edison is directly or
indirectly connected, including the ISO Grid) and its customers from
faults occurring at the Generating Facility, and (b) the Generating
Facility from faults occurring on the Edison system or on the systems
of others to which the Edison system is directly or indirectly
connected. Interconnection Facilities also include any necessary
additions and reinforcements by Edison to the Edison system required
as a result of the interconnection of the Generating Facility to the
Edison system, the ISO Grid system, or systems to which the Edison
system is connected.
2.13 Interconnection Facilities Agreement: The Interconnection Facilities
Agreement, dated as of the date herein, between Seller and Edison,
attached hereto as Appendix C.
2.14 Nameplate Rating: The gross generating capacity of the Generating
Facility less Station Use. For purposes of this Agreement, Nameplate
Rating is that rating specified in Section 1.1(b) of this Agreement.
2.15 Edison Electric System Integrity: The state of operation of Edison's
electric system in a manner which is deemed to minimize the risk of
injury to persons and/or property and enables Edison to provide
adequate and reliable electric service to its customers.
2.16 Point of Delivery: That certain location on Edison's system or on the
ISO Grid within Edison's geographic service territory, which is set
forth in Section 1.12, at which title to electricity delivered by
Seller from the Generating Facility will transfer from Seller to
Edison.
2.17 [This section is intentionally left blank].
2.18 Protective Apparatus: All relays, meters, power circuit breakers,
synchronizers, and other control devices as shall be agreed to by the
Parties in accordance with the requirements of Edison as necessary
for proper and safe operation of the Generating Facility in parallel
with Edison's electric system and/or the ISO Grid.
2.19 Prudent Electrical Practices: Those practices, methods, and
equipment, as changed from time to time, that are commonly used in
prudent electrical engineering and operations to design and operate
similar electric equipment lawfully and with safety, dependability,
efficiency, and economy.
2.20 [This section is intentionally left blank].
2.21 Short-Run Avoided Costs or "SRAC": CPUC-approved costs, updated from
time to time, which are the basis of Edison's published energy and
capacity prices.
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2.22 Station Use: Energy used to operate the Generating Facility's
auxiliary equipment. The auxiliary equipment includes, but is not
limited to, forced and induced draft fans, cooling towers, boiler
feed pumps, lubricating oil systems, plant lighting, fuel handling
systems, control systems, and sump pumps.
2.23 Effective Date: June 23, 2005.
2.24 IOU: A California investor-owned public utility corporation, e.g.,
Southern California Edison Company, San Diego Gas and Electric
Company, or Pacific Gas and Electric Company.
2.25 ISO: The California Independent System Operator Corporation, a state
chartered, nonprofit, public benefit corporation that controls
certain transmission facilities of all participating transmission
owners and dispatches certain electric generation units and loads.
2.26 ISO Grid: The system of transmission lines and associated facilities
of the participating transmission owners that have been placed under
the ISO's operational control.
2.27 Project Manager: The entity designated in this Agreement responsible
for operating and maintaining the Project with sole authority and
agency to act on behalf of Seller in all matters relating to this
Agreement. Enron Wind Systems, LLC shall act as Project Manager of
this Agreement.
2.27 Reformed Standard Offer No. 1, Reformed SO1 or RSO1: The
standardized, unexecuted form of this Agreement offered pursuant to
D.00-00-000, D.00-00-000 or D.00-00-000.
2.28 Xxxxxxx Xxxxxxxx Xxxxx Xx. 0, XXX0, xx XX0: The standardized Southern
California Edison Company Uniform Standard Offer 1 - As-Available
Capacity and Energy Power Purchase Agreement, approved by the CPUC on
February 24, 1989.
3. TERMINATION OF ORIGINAL CONTRACT, EFFECTIVE DATE AND
TERMINATION OF AGREEMENT
3.1 This Agreement shall be valid and binding upon the Parties on the date
that it has been executed by both Parties.
3.2 Unless terminated sooner, this Agreement shall terminate at 11:59 p.m.
on the last day before the fifth anniversary of the Effective Date.
Unless otherwise provided herein, any rights vested as of the
termination of this Agreement shall survive the termination.
3.3 This Agreement may be terminated sooner by Seller upon providing
thirty (30) days prior written notice in accordance with Section 1.8.
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4. PROJECT FEE
[This section intentionally left blank].
5. PROJECT DEVELOPMENT MILESTONES
Seller shall complete each Project Development Milestone as provided in
this Section 5.
5.1 Project Development Milestones
(a) The following events shall constitute Project Development
Milestones:
(1) [This section intentionally left blank].
(2) Maintenance of Site Control (pursuant to Section 5.3).
(3) [This section intentionally left blank].
(4) [This section intentionally left blank].
(5) [This section intentionally left blank].
(b) If Seller fails to complete each Project Development Milestone in
the time and manner provided in Sections 5.2 through 5.6, Edison
may terminate this Agreement upon thirty (30) days written
notice.
5.2 [This section intentionally left blank].
5.3 Maintain Site Control
(a) Seller warrants that it possessed Site Control of the site
described in Section 1.1(c) as of the date Seller executed this
Agreement and that Seller shall maintain continuous Site Control
for the term of this Agreement.
(b) Site Control: Site Control shall consist of one of the following,
or other form of Site Control acceptable to Edison in its sole
discretion:
(1) Seller's ownership of the location of Seller's Generating
Facility specified in Section 1.1(c);
(2) Seller's leasehold interest or right of way grant in the
location specified in Section 1.1(c), which leasehold
interest shall specifically include the right to construct
and operate the Generating Facility at such location;
(3) Seller's exclusive and irrevocable contractual right to
construct and operate the Generating Facility at the
location specified in Section 1.1(c); or
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(4) Seller's exclusive and irrevocable option to obtain any of
the rights described in Section 5.3(b)(1) through Section
5.3(b)(3) above. This alternative shall only constitute Site
Control prior to the commencement of construction of
Seller's Generating Facility.
(c) Seller shall provide Edison with prompt notice of any change in
the status of its Site Control. If, at any time, Edison has
reason to believe that Seller has lost Site Control, Edison may
request from Seller evidence that Seller continues to possess
Site Control. If Seller fails to provide such evidence within
thirty (30) calendar days after Seller receives Edison's request,
the provisions of the last sentence of Section 5.3(d) shall
apply.
(d) Where the term of Seller's Site Control does not extend for the
full term of this Agreement, Seller shall advise Edison of the
date Site Control is scheduled to expire. Seller shall provide to
Edison, no later than the date Seller's Site Control is scheduled
to expire, evidence that Seller's Site Control has been renewed
or extended. If Seller fails to provide such evidence, Edison
shall notify Seller in writing that Seller is not in compliance
with this Section 5.3(d). Unless Seller provides Edison with
evidence that Site Control has been renewed or extended within
thirty (30) calendar days after Edison's notification, the
provisions of Section 5.1(b) shall apply.
(e) This Agreement is project and site specific; however, Seller may
with Edison's prior consent, be permitted to adjust the location
of Seller's Generating Facility within the proximity of the site
specified in Section 1.1(c) if necessary for project development.
5.4 [This section intentionally left blank].
5.5 [This section intentionally left blank].
5.6 [This section intentionally left blank].
6. GENERATING FACILITY
The Generating Facility shall be owned by Seller. The Generating Facility
shall be designed, constructed, operated, and maintained as follows:
6.1 Design and Construction:
(a) Seller, at Seller's sole expense, shall:
(1) Design the Generating Facility;
(2) Acquire all permits and other approvals necessary for the
construction, operation, and maintenance of the Generating
Facility; and
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(3) Complete all environmental impact studies necessary for the
construction, operation, and maintenance of the Generating
Facility.
(b) Seller shall provide to Edison reasonable advance written notice
of any changes in Seller's Generating Facility and provide to
Edison specifications and design drawings of any such changes for
Edison's review and approval.
(c) The total installed capacity (net of Station Use) of Seller's
Generating Facility shall not exceed the Nameplate Rating set
forth in Section 1.1(b) of this Agreement.
6.2 Construction:
(a) Seller, at Seller's sole expense, shall construct the Generating
Facility.
(b) Edison shall have the right to review and consult with Seller
regarding Seller's construction schedule.
(c) Edison shall have the right to periodically inspect the
Generating Facility upon advance notice to Seller. Seller, at its
option, may be present at such inspection.
6.3 Operation:
(a) Seller shall operate the Generating Facility in accordance with
Prudent Electrical Practices.
(b) Seller shall operate the Generating Facility to generate such
reactive power or provide individual power factor correction as
necessary to maintain voltage levels and reactive power support
for the Generating Facility as may be required by Edison in its
sole discretion. Seller shall not deliver excess reactive power
to Edison unless otherwise agreed upon between the Parties. If
Seller fails to provide reactive power support, Edison may do so
at Seller's expense.
(c) The Generating Facility shall be operated with all of Seller's
Protective Apparatus in service whenever the Generating Facility
is connected to, or is operated in parallel with, the Edison
electric system or the ISO Grid. Any deviation for brief periods
of Emergency or maintenance shall only be by agreement of the
Parties.
(d) Seller shall maintain operating communications with either the
Edison Designated Switching Center or the Edison Generation
Operations Center, as requested by Edison. The Generation
Operations Center can be reached at any time at 000-000-0000. The
operating communications shall include, but not be limited to,
system parallel operation or separation, scheduled and
unscheduled outages, equipment clearances, protective relay
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operations, levels of operating voltage and reactive power, and
daily capacity and generation reports. For coordination of
switching and Edison grid operations, the Seller may be referred
to the Switching Center designated in Section 1.9.
(e) Seller shall keep a daily operations log for the Generating
Facility which shall include information on availability,
maintenance outages, circuit breaker trip operations requiring a
manual reset, and any significant events related to the operation
of the Generating Facility, including but not limited to: real
and reactive power production; changes in operating status and
protective apparatus operations; and any unusual conditions found
during inspections. Changes in setting shall also be logged for
Seller's generator(s) if it is "block-loaded" to a specific kW
capacity.
(f) Seller shall maintain complete daily operations records
applicable to the Generating Facility, including but not limited
to wind speeds and other pertinent meteorological conditions,
fuel consumption, cogeneration fuel efficiency, maintenance
performed, kilowatts, kilovars and kilowatt-hours generated and
settings or adjustments of the generator control equipment and
protective devices. Such information shall be available to Edison
pursuant to Section 21.
(g) If Seller's Generating Facility has a Nameplate Rating greater
than one (1) and up to and including ten (10) megawatts, Edison
may require Seller to report to the Designated Switching Center,
twice a day at agreed upon times for the current day's operation,
the hourly readings in kW of capacity delivered and the energy in
kWh delivered since the last report.
(h) If Seller's Generating Facility has a Nameplate Rating greater
than ten (10) megawatts, Edison shall provide, at Seller's
expense, telemetering equipment.
(i) Edison may require Seller, at Seller's expense, to demonstrate to
Edison's satisfaction the correct calibration and operation of
Seller's Protective Apparatus at any time Edison has reason to
believe that said Protective Apparatus may impair the Edison
Electric System Integrity.
6.4 Maintenance:
(a) Seller shall maintain the Generating Facility in accordance with
Prudent Electrical Practices.
(b) With respect to the Generating Facility taken as a whole, Seller
shall notify Edison in writing (1) by January 1, May 1, and
September 1 of each year in which this Agreement is in effect, of
the estimated scheduled maintenance and estimated daily energy
and capacity deliveries for the following four months and (2) by
September 1 of each year, of the estimated scheduled maintenance
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and estimated daily energy and capacity deliveries for the
following calendar year.
(c) With respect to the Generating Facility taken as a whole, Seller
shall provide Edison written notice of actual outages, whether
scheduled or forced, with as much notice as practicable. Seller
shall notify Edison of scheduled outages with at least 24 hours
notice in writing and in addition by use of Edison's automated
telephone-based Interactive Voice Response System ("IVR") or by
use of any other automated system which may replace IVR.
(d) Seller shall promptly prepare and provide to Edison upon request
all reports of actual or forecasted outages that Edison may
reasonably require for the purpose of enabling Edison to comply
with Section 761.3 of the California Public Utilities Code or any
applicable law mandating the reporting by investor-owned
utilities of expected or experienced outages by facilities under
contract with such investor-owned utilities to supply electric
energy.
6.5 Project Manager:
(a) If the identity of the Project Manager changes for any reason,
Edison shall have the right to approve the new Project Manager.
Such approval shall be withheld only if the assets, financial
condition, or operating capability of the proposed replacement
Project Manager gives Edison reasonable cause to doubt such
entity's ability to adequately perform the duties of the Project
Manager. To facilitate such approval, Edison may request Seller
to furnish any material reasonably necessary for Edison to
prudently approve a change in Project Manager. Any financing
documents, partnership agreements, or management contracts which
specify the Project Manager's role shall specifically provide for
Edison's right of approval of any such Project Manager. Such
change in Project Manager and the approval thereof by Edison
shall not operate to reduce the rights and obligations of the
project owners or sellers under this Agreement.
(b) Seller represents and warrants that Project Manager has sole
authority and agency to act on behalf of all owner(s) and
seller(s) in all matters relating to this Agreement. Seller shall
provide or cause the Project Manager to provide Edison with
satisfactory evidence of such authority and agency including, but
not be limited to, authenticated copies of any partnership
agreements, fictitious business name statements, certificates of
partnership, management agreements, and authenticated copies of
any agreements appointing the Project Manager for purposes of
this Agreement.
(c) The failure by Seller to comply with the terms and conditions of
this Section 6.5 shall constitute an event of default subject to
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cure by Seller within thirty (30) days after notice by Edison.
During such cure period, Edison will have the obligations to
purchase capacity and Energy. Thereafter, Edison's continuing
obligations to purchase capacity and Energy shall be contingent
upon compliance by Sellers with the terms and conditions of this
Section 6.5.
7. OPERATING OPTIONS
7.1 Seller shall operate the Generating Facility in parallel with Edison's
electric system pursuant to one of the following options as designated
in Section 1.6:
X Operating Option I (Buy/Sell): Seller sells the entire
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Generating Facility output to Edison with electrical
service required from Edison.
______ Operating Option II (Surplus Sale): Seller sells
Generating Facility output, less Station Use and any other
use by Seller, to Edison.
7.2 [This section intentionally left blank].
7.3 [This section intentionally left blank].
7.4 [This section intentionally left blank].
7.5 [This section intentionally left blank].
7.6 Seller agrees to use reasonable efforts and shall take no unreasonable
action which would encumber, impair or diminish Seller's ability to
deliver to Edison As-Available Capacity and the energy associated with
that capacity. Seller acknowledges that it intends no use for the
generation committed to Edison under this Agreement other than
expressly set forth in Sections 1.6 and 1.10 of this Agreement.
8. INTERCONNECTION FACILITIES
8.1 Concurrent with the execution of this Agreement, the Parties shall
execute an Interconnection Facilities Agreement, which shall terminate
upon termination of this Agreement. The Interconnection Facilities
Agreement shall provide for the ownership, construction, operation and
maintenance of the Interconnection Facilities pursuant to Edison's
Tariff Rule No. 21. The Interconnection Facilities Agreement is
attached hereto and incorporated herein by this reference.
8.2 The Interconnection Facilities for which Seller is responsible and the
Point of Delivery shall be set forth either in equipment lists or by
appropriate one-line diagrams which shall be attached to the agreement
for Interconnection Facilities.
8.3 Seller, at Seller's sole expense, shall acquire all permits and
approvals and complete all environmental impact studies necessary for
14
the design, construction, installation, operation, and maintenance of
the Interconnection Facilities which Seller elects to install.
8.4 [This section intentionally left blank].
8.5 Seller shall provide written notice to Edison at least fourteen (14)
calendar days prior to the initial and subsequent testing of Seller's
Protective Apparatus. Seller's Protective Apparatus shall be tested
thereafter at intervals not to exceed three (3) years using qualified
personnel. Edison shall have the right to have a representative
present at the initial and subsequent testing of Seller's Protective
Apparatus and to receive copies of the test results. If Seller's
interconnection to the Edison system includes Interconnection
Facilities at voltage levels of 220 kV or greater, Seller's Protective
Apparatus shall be tested at least every twelve (12) months using
qualified personnel. Edison shall have the right to have
representatives present at such tests and shall receive copies of the
test results.
8.6 Seller shall be allocated existing line capacity in accordance with
Edison's Tariff Rule No. 21.
8.7 Seller shall be solely responsible for the design, purchase,
construction, operation, and maintenance of the Interconnection
Facilities, owned by Seller, necessary to protect Edison's electric
system, employees and customers from damage or injury arising out of
or connected with the operation of the Generating Facility. Seller
shall operate and maintain the Interconnection Facilities owned by
Seller in accordance with Prudent Electrical Practices.
8.8 Seller shall provide to Edison Seller's electrical specifications and
design drawings pertaining to the Interconnection Facilities for
Edison's review prior to finalizing design of the Interconnection
Facilities and before beginning construction work based on such
specification and drawings. Seller shall provide to Edison reasonable
advance written notice of any changes in the Interconnection
Facilities and provide to Edison specifications and design drawings of
any such changes for Edison's review and approval. Edison may require
modifications to such specifications and designs as it deems necessary
to allow Edison to operate Edison's system in accordance with Prudent
Electrical Practices.
8.9 Seller shall pay for any changes in the Interconnection Facilities as
may be reasonably required to meet the changing requirements of the
Edison system in accordance with Edison's Tariff Rule No. 21.
8.10 If Seller's interconnection to the Edison system includes
Interconnection Facilities at voltage levels of 220 kV or greater,
Edison may require Protective Apparatus owned by Seller to be
maintained by Edison at Seller's expense.
8.11 The Parties hereby agree that any agreement(s) for Interconnection
Facilities and/or for distribution service utilized for purposes of
making or facilitating electric power sales under this Agreement may
15
not be relied upon to make or facilitate electric power sales in
connection with any other electric power sales agreement, other than
this Agreement, that may be entered into by Seller.
9. REVIEW AND DISCLAIMER
9.1 Review by Edison of the design, construction, operation, or
maintenance of Seller's Generating Facility shall not constitute any
representation as to the economic or technical feasibility,
operational capability, or reliability of the Generating Facility.
Seller shall in no way represent to any third party that any such
review by Edison of such facilities including but not limited to any
review of the design, construction, operation, or maintenance of such
facilities by Edison is a representation by Edison as to the economic
or technical feasibility, operational capability, or reliability of
such facilities. Seller is solely responsible for economic and
technical feasibility, operational capability, and reliability of
Seller's Generating Facility.
9.2 [This section intentionally left blank].
10. REAL PROPERTY RIGHTS
10.1 [This section intentionally left blank].
10.2 [This section intentionally left blank].
10.3 Edison shall have the right of ingress to and egress from the
Generating Facility at all reasonable hours for any purposes
reasonably connected with this Agreement or the exercise of any and
all rights secured to Edison by law or its tariff schedules and rules
on file with the CPUC.
10.4 Edison shall have no obligation to Seller for any loss, liability,
damage, claim, cost, charge, or expense due to Edison's inability to
acquire a satisfactory right of way, easement or other real property
interest necessary to Edison's performance of its obligations under
this Agreement.
10.5 [This section intentionally left blank].
10.6 Nothing in this Section 10 shall be construed to require Edison to
acquire land rights through condemnation or any other means for Seller
either inside or outside of Edison's service territory unless Edison
shall in its sole discretion elect to do so.
11. METERING
11.1 All meters and equipment used for the measurement of power for
determining Edison's payments to Seller pursuant to this Agreement
shall be provided, owned, and maintained by Edison at Seller's sole
expense in accordance with Edison's Tariff Rule No. 21 attached
hereto.
16
11.2 All the meters and equipment used for measuring the power delivered to
Edison shall be located on the side of the Interconnection Facilities
transformer as selected by Seller in Section 1.7. If Seller chooses to
have meters placed on the low-voltage side of the Interconnection
Facilities transformer, a transformer loss compensation factor will be
applied. At Seller's sole expense, manufacturer's certified test
reports of transformer losses, in accordance with current national
standards, will be provided and used to determine a transformer loss
compensation factor, unless another method for determination of
transformer losses has been mutually agreed upon to determine the
actual measured value of losses.
11.3 Pursuant to Edison's Tariff Rule No. 21, telemetering shall be
required at Seller's expense if Seller's Generating Facility has a
Nameplate Rating greater than ten (10) MW.
11.4 Edison's meters shall be sealed and the seals shall be broken only
when the meters are to be inspected, tested or adjusted by Edison.
Seller shall be given reasonable notice of testing and, to the extent
reasonably feasible, shall have the right to have a representative
present on such occasions. Edison may inspect and test all meters upon
their installation and annually thereafter. At Seller's request and
expense, Edison shall inspect or test a meter more frequently in
accordance with Edison's Tariff Rule No. 17.
11.5 Edison shall repair, adjust or replace any metering equipment that
Edison determines in its sole judgment to be inaccurate or defective,
such that the metering accuracy of said equipment shall be within one
(1) percent. If a meter fails to register or if the measurement made
by a meter during a test varies by more than one (1) percent from the
metering standard used in the test, an adjustment shall be made
correcting all measurements made by the inaccurate meter for (A) the
actual period during which inaccurate measurements were made, if the
period can be determined, or if not (B) the period immediately
preceding the test of the meter equal to one-half the time from the
date of the last previous test of the meter, provided that the period
covered by the correction shall not exceed six (6) months.
11.6 Metering equipment determined by Edison to be inaccurate or defective
shall be repaired, adjusted, or replaced by Edison such that the
metering accuracy of said equipment shall be within two (2) percent.
11.7 Seller must install and maintain equipment to collect, record and
transmit data that Edison reasonably determines is necessary to
develop and support a forecast model that meets the requirements of
ISO EIRP 4. Seller may be required to telemeter various data relevant
to forecasting energy to Edison, including appropriate operational
data, meteorological data or other data reasonably necessary to
forecast energy. The standards for communications shall be the
monitoring and communications requirements for generating units
providing only energy and supplemental energy; as such standards may
be amended from time to time, and published on the ISO internet home
page. Seller shall be responsible for all expenses and costs
17
associated with engineering, installation, operation and maintenance
of required collection and communication equipment.
11.8 Meteorological Tower.
11.18.1 The Generating Facility must install at least one
meteorological tower at a project location that is
representative of the microclimate within the Generating
Facility boundary. The meteorological tower must rely on
equipment typically used in the wind industry to continuously
monitor weather conditions at a wind resource site. Data
collected shall be consistent with requirements published on
the ISO internet home page. Such data must be gathered and
telemetered to Edison in accordance with ISO EIRP 3. If
objective standards developed by the ISO indicate that the
meteorological data may not be sufficiently representative of
conditions affecting energy output or changes in energy
output, then Edsion may require that additional meteorological
equipment be temporarily installed at another location within
the project boundary. The cost of such equipment, which may be
temporarily installed, shall be the responsibility of Seller.
If objective standards indicate that the data collected from
such a temporary site contribute significantly to the
development of an accurate and unbiased forecast, then Seller
shall be responsible for installing and arranging for the
telemetry of data from an additional permanent meteorological
tower at such site. Relocation of the original meteorological
tower to the new site will be allowed if Edison determines
that a sufficiently accurate and unbiased forecast can be
generated from a single relocated meteorological tower.
11.18.2 The Parties acknowledge that under the Side Letter, attached
hereto and incorporated herein as Appendix D, Edison has
agreed to install additional meteorological equipment on
Seller's meteorological tower. So long as Edison collects data
gathered by use of Edison's meteorological equipment, Seller
shall not be required to arrange for telemetry of data from
the meteorological tower to Edison; provided that in the event
Edison ceases collection of meteorological data, Seller shall
become responsible for providing Edison with such data in
accordance with Section 11.18.1.
12. QUALIFYING FACILITY STATUS AND PERMITS
12.1 Seller represents and warrants that, beginning on the Effective Date
and continuing until the end of this Agreement, the Generating
Facility shall meet the qualifying facility requirements established
as of the Effective Date of this Agreement by the Federal Energy
Regulatory Commission's rules (18 Code of Federal Regulations Section
292) implementing the Public Utility Regulatory Policies Act of 1978
(16 U.S.C.A. Sections 796, et seq.). Edison may, at its sole
discretion, terminate this Agreement in the event of a breach of the
representation and warranty in this Section 12.1.
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12.2 Seller shall reimburse Edison for any loss of whatever kind which
Edison incurs as a result of:
(a) Seller's failure to obtain or maintain any necessary permit or
approval, including completion of required environmental studies,
necessary for the construction, operation, and maintenance of the
Generating Facility.
(b) Seller's failure to comply with necessary permits and approvals
or with any applicable law.
(c) Seller's breach of that warranty in Section 12.1 above.
12.3 If a loss of qualifying facility status occurs due to a change in the
law governing qualifying facility status occasioned by regulatory,
legislative, or judicial action, Seller shall compensate Edison for
any economic detriment incurred by Edison should Seller choose not to
make the changes necessary to continue its qualifying facility status.
13. ENERGY PURCHASE
13.1 Commencing upon the Effective Date, and subject to the terms and
conditions of this Agreement, Seller shall sell and deliver, at the
Point of Delivery, and Edison shall purchase and accept delivery of,
at the Point of Delivery, energy produced by the Generating Facility,
subject to Sections 1.6 and 7. Edison shall have no obligation under
this Agreement to purchase energy produced by the Generating Facility
prior to the Effective Date.
13.2 Edison shall pay Seller for energy at prices equal to Edison's
Short-Run Avoided Costs ("SRAC") for energy. Pursuant to Ordering
Paragraph 4 of the Long Term 2004 Procurement Decision, the pricing
terms of this Agreement may change if the CPUC subsequently modifies
its policy on QF SRAC energy pricing methodology.
13.3 Payment for energy shall be based on the time of delivery. The time
periods currently in effect are shown in Appendix A. Time period
definitions may change from time-to-time as determined by the CPUC.
13.4 Edison has contracted to purchase the energy associated with the
Generating Facility of the Nameplate Rating described in Section
1.1(b) of this Agreement. If Seller installs a Generating Facility
with a Nameplate Rating greater than that specified in Section 1.1(b)
of this Agreement, Edison shall not be required to accept or pay for
energy associated with the incremental increase in Nameplate Rating
under this Agreement.
13.5 Energy payments made to Seller pursuant to this Agreement will be
adjusted by an energy loss adjustment factor, as currently approved by
the CPUC and as may be modified by the CPUC from time-to-time.
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14. CAPACITY PURCHASE
14.1 Commencing upon the Effective Date, and subject to the terms and
conditions of this Agreement, Seller shall sell and deliver, at the
Point of Delivery, and Edison shall purchase and accept delivery of,
at the Point of Delivery, As-Available Capacity produced by the
Generating Facility, subject to Sections 1.6 and 7. Edison shall have
no obligation under this Agreement to pay for capacity provided by the
Generating Facility prior to the Effective Date.
14.2 Edison shall pay Seller for As-Available Capacity at prices authorized
from time to time by the CPUC and which are derived from Edison's
avoided costs, as approved by the CPUC. Pursuant to Ordering Paragraph
4 of the Long Term 2004 Procurement Decision, the pricing terms of
this Agreement may change if the CPUC subsequently modifies its policy
on QF SRAC capacity pricing methodology.
14.3 Payment for capacity shall be based on time of delivery. The time
periods currently in effect are shown in Appendix A. Time period
definitions may change from time to time as determined by the CPUC.
14.4 Edison has contracted to purchase the As-Available Capacity associated
with the Generating Facility of the Nameplate Rating described in
Section 1.1(b) of this Agreement. If Seller installs a Generating
Facility with a Nameplate Rating greater than that specified in
Section 1.1(b) of this Agreement, Edison shall not be required to
accept or pay for As-Available Capacity associated with the
incremental increase in Nameplate Rating under this Agreement.
15. CURTAILMENT
15.1 Hydro Spill:
(a) In anticipation of a period of hydro spill conditions, as defined
by the CPUC, Edison may notify Seller that any purchases of
energy from Seller during such period shall be at hydro savings
prices quoted by Edison. If Seller delivers energy to Edison
during any such period, Seller shall be paid hydro savings prices
for those deliveries in lieu of prices which would otherwise be
applicable. The hydro savings prices shall be calculated by
Edison using the following formula:
Hydro Savings Price = ((AQF - S)/AQF) x SRAC (>0)
Where:
AQF = energy for each time period, in kWh,
projected to be available during hydro
spill conditions from all qualifying
facilities under agreements containing
hydro savings price provisions;
S = potential energy for each time period,
in kWh, from Edison hydro facilities
which will be spilled if all AQF is
delivered to Edison; and
20
SRAC = Short-Run Avoided Cost, as applicable for
the month in question.
(b) Edison shall give Seller notice of general periods when hydro
spill conditions are anticipated, and shall give Seller as much
advance notice as practical of any specific hydro spill period
and the hydro savings price which will be applicable during such
period.
15.2 Negative Avoided Costs:
Edison shall not be obligated to accept or pay for and may require
Seller with a Generating Facility with a Nameplate Rating of one (1)
megawatt or greater to interrupt or reduce deliveries of energy and
As-Available Capacity during any period in which, due to operational
circumstances, the acceptance of deliveries of power from Seller will
result in Edison system costs greater than those which Edison would
incur if it did not accept such deliveries, but instead generated an
equivalent amount of energy itself; provided, however, that Edison may
not require Seller to interrupt or reduce deliveries of, or refuse to
pay for energy and As-Available Capacity solely because Edison's
instantaneous avoided cost is lower than the applicable energy price
to be paid Seller pursuant to this Agreement. As described in CPUC
Decision No. 00-00-000 and Decision No. 00-00-000, and for
illustrative purposes only, an example of such a period is a period
when Edison would be forced to shut down baseload or intermediate load
plants in order to accept deliveries from Seller and such baseload or
intermediate load plants could not then be restarted and brought up to
their rated output to meet the next day's peak load and Edison would
be required to utilize costly or less efficient generation with faster
start-up or make an expensive emergency purchase of capacity to meet
the demand that could have been met by the baseload or intermediate
load plants but for such purchases from Seller, even if such purchases
from Seller were at a price of zero ($0). Whenever possible, Edison
shall give Seller reasonable notice of the possibility that
interruption or reduction of deliveries may be required.
15.3 Before interrupting or reducing deliveries under Section 15.2, and
before invoking hydro savings prices under Section 15.1, Edison shall
take reasonable steps to make economy sales of surplus energy giving
rise to the condition. If such economy sales are made while the
surplus energy condition exists, Seller shall be paid at the economy
sales price obtained by Edison in lieu of the otherwise applicable
prices.
15.4 If Seller is under Operating Option I and Seller elects not to sell
energy to Edison at the hydro savings price pursuant to Section 15.1
or when Edison curtails deliveries of energy pursuant to Section 15.2,
Seller shall not use such energy to meet its electrical needs but
shall continue to purchase all its electrical needs from Edison. If
Seller is under Operating Option II, Sections 15.1 or 15.2 shall only
apply to the excess Generating Facility output being delivered to
21
Edison, and Seller can continue use of that generation it has retained
for Station Use and any other use by Seller.
16. INTERRUPTION OF DELIVERIES
16.1 Consistent with ISO protocols for congestion management, Edison shall
not be obligated to accept or pay for deliveries of energy and
capacity that have been interrupted or reduced for any of the reasons
set forth in this paragraph 16.1. Edison may require Seller to
interrupt or reduce deliveries of capacity and energy (a) when
necessary in order to construct, install, maintain, repair, replace,
remove, investigate, or inspect any of its equipment or any part of
its system; or (b) if it determines that interruption or reduction is
necessary because of an Emergency, Forced Outage, Force Majeure,
compliance with Prudent Electrical Practices; or (c) when necessary
due to congestion, voltage instability or other instability conditions
occurring on Edison's transmission and or distribution system or the
ISO system or other systems to which Edison is directly or indirectly
connected; provided that Edison shall not interrupt deliveries
pursuant to this Section solely in order to take advantage, or make
purchases, of less expensive energy elsewhere.
16.2 Notwithstanding any other provisions of this Agreement, if at any time
Edison determines that (a) continued parallel operation of the
Generating Facility may endanger Edison personnel or other persons;
(b) continued parallel operation of the Generating Facility may
endanger the Edison Electric System Integrity, or the integrity of the
ISO Grid, or any other system to which Edison may be directly or
indirectly connected; or (c) Seller's Protective Apparatus is not
fully in service, Edison shall have the right to disconnect the
Generating Facility from Edison's system and/or the ISO Grid. The
Generating Facility shall remain disconnected until such time as
Edison is satisfied that the condition(s) referenced in this Section
16 have been corrected.
16.3 Whenever possible, Edison shall give Seller reasonable notice of the
possibility that interruption or reduction of deliveries may be
required.
17. PAYMENT AND BILLING
17.1 Edison shall mail to Seller not later than thirty (30) calendar days
after the end of each monthly billing period (a) a statement showing
the energy and capacity delivered to Edison during on-peak, mid-peak,
off-peak, and super-off-peak periods during the monthly billing
period, (b) Edison's computation of the amount due Seller, and (c)
Edison's check in payment of said amount.
17.2 Edison reserves the right to provide Seller's statement concurrently
with any xxxx to Seller for electric service provided by Edison to
Seller at the location specified in Section 1.1(c) or any xxxx to
Seller for any charges under this Agreement owing and unpaid by Seller
and to apply the value of Edison's purchase of energy and capacity
toward such xxxx(s). Seller shall pay any amount owing for electric
service provided by Edison to Seller in accordance with applicable
22
tariff schedules. Nothing in this Section 17.2 shall limit Edison's
rights under applicable tariff schedules.
17.3 In the event adjustments to payments are required as a result of
inaccurate meters, Edison shall use the corrected measurements
described in Section 11.5 to re-compute the amount due from Edison to
Seller for the capacity and energy delivered under this Agreement
during the period of inaccuracy. Any refund due and payable to Edison
resulting from inaccurate metering shall be made within thirty (30)
calendar days of written notification to Seller by Edison of the
amount due. Any additional payment to Seller resulting from inaccurate
metering shall be made within thirty (30) calendar days of Edison's
recomputation of the amount due from Edison to Seller.
17.4 Monthly charges associated with Interconnection Facilities shall be
billed pursuant to the Interconnection Facilities Agreement and
applicable tariffs.
18. INDEMNITY AND LIABILITY
18.1 Each Party as indemnitor shall defend, save harmless and indemnify the
other Party and the directors, officers, employees, and agents of such
Party against and from any and all loss, liability, damage, claim,
cost, charge, demand, or expense (including any direct, indirect, or
consequential loss, liability, damage, claim, cost, charge, demand, or
expense, including attorneys' fees) for injury or death to persons,
including employees of either Party, and damage to property including
property of either Party arising out of or in connection with (a) the
engineering, design, construction, maintenance, repair, operation,
supervision, inspection, testing, protection or ownership of, or (b)
the making of replacements, additions, betterments to, or
reconstruction of, the indemnitor's facilities; provided, however,
Seller's duty to indemnify Edison hereunder shall not extend to loss,
liability, damage, claim, cost, charge, demand, or expense resulting
from interruptions in electrical service to Edison's customers other
than Seller or electric customers of Seller. This indemnity shall
apply notwithstanding the active or passive negligence of the
indemnitee. However, neither Party shall be indemnified hereunder for
its loss, liability, damage, claim, cost, charge, demand or expense
resulting from its sole negligence or willful misconduct.
18.2 Notwithstanding the indemnity of Section 18.1 and except for a Party's
willful misconduct or sole negligence, each Party shall be responsible
for damage to its facilities resulting from electrical disturbances or
faults.
18.3 Seller releases and shall defend, save harmless and indemnify Edison
from any and all loss, liability, damage, claim, cost, charge, demand
or expense arising out of or in connection with any representation
made by Seller inconsistent with Section 9.1.
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18.4 The provisions of this Section 18 shall not be construed to relieve
any insurer of its obligations to pay any insurance claims in
accordance with the provisions of any valid insurance policy.
18.5 Except as otherwise provided in Section 18.1, neither Party shall be
liable to the other Party for consequential damages incurred by that
Party.
18.6 If Seller fails to comply with the provisions of Section 19, Seller
shall, at its own cost, defend, save harmless and indemnify Edison,
its directors, officers, employees, and agents, assignees, and
successors in interest from and against any and all loss, liability,
damage, claim, cost, charge, demand, or expense of any kind or nature
(including any direct, indirect, or consequential loss, damage, claim,
cost, charge, demand, or expense, including attorneys' fees and other
costs of litigation), resulting from injury or death to any person or
damage to any property, including the personnel or property of Edison,
to the extent that Edison would have been protected had Seller
complied with all of the provisions of Section 19. The inclusion of
this Section 18.6 is not intended to create any express or implied
right in Seller to elect not to provide the insurance required under
Section 19.
19. INSURANCE
19.1 In connection with the Generating Facility, associated land, land
rights, and interests in land, and with Seller's performance of and
obligations under this Agreement, Seller shall maintain, during the
term of this Agreement, General Liability Insurance with a combined
single limit of not less than: (a) one million dollars ($1,000,000)
for each occurrence if the Generating Facility is over one hundred
(100) kW; (b) five hundred thousand dollars ($500,000) for each
occurrence if the Generating Facility is over twenty (20) kW and less
than or equal to one hundred (100) kW; and (c) one hundred thousand
dollars ($100,000) for each occurrence if the Generating Facility is
twenty (20) kW or less. Such General Liability Insurance shall include
coverage for Premises-Operations, Owners and Contractors Protective,
Products/Completed Operations Hazard, Explosion, Collapse,
Underground, Contractual Liability, and Broad Form Property Damage
including Completed Operations.
19.2 The General Liability Insurance required in Section 19.1 shall, by
endorsement to the policy or policies, (a) include Edison as an
additional insured; (b) contain a severability of interest clause or
cross-liability clause; (c) provide that Edison shall not by reason of
its inclusion as an additional insured incur liability to the
insurance carrier for payment of premium for such insurance; and (d)
provide for thirty (30) calendar days written notice to Edison prior
to cancellation, termination, alteration, or material change of such
insurance.
19.3 If the requirement of Section 19.2(a) prevents Seller from obtaining
the insurance required in Section 19.1, then upon written notification
by Seller to Edison, Section 19.2(a) shall be waived.
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19.4 Evidence of the insurance required in Section 19.1 shall state that
coverage provided is primary and is not in excess to or contributing
with any insurance or self-insurance maintained by Edison.
19.5 Edison shall have the right to inspect or obtain a copy of the
original policy or policies of insurance.
19.6 Seller shall furnish the required certificates and endorsements to
Edison within five (5) days of the Effective Date.
19.7 A Seller who is a self-insured governmental agency with an established
record of self-insurance may comply with the following in lieu of
Sections 19.1 through 19.6:
(a) Seller shall provide to Edison within five (5) days of the
Effective Date evidence of an acceptable plan to self-insure to a
level of coverage equivalent to that required under Section 19.1.
(b) If Seller ceases to self-insure to the level required hereunder,
or if the Seller is unable to provide continuing evidence of
Seller's ability to self-insure, Seller shall immediately obtain
the coverage required under Section 19.1.
19.8 All insurance certificates, statements of self insurance,
endorsements, cancellations, terminations, alterations, and material
changes of such insurance shall be issued and submitted to the
following:
Southern California Edison Company Attention:
Manager, QF Contracts
X.X. Xxx 000 Xxxxxxxx, XX 00000
20. FORCE MAJEURE
20.1 If either Party because of Force Majeure is unable to perform its
obligations under this Agreement, that Party shall be excused from
whatever performance is affected by the Force Majeure to the extent so
affected, except as to obligations to pay money, provided that:
(a) The non-performing Party, within two (2) weeks after the
commencement of the Force Majeure, gives the other Party written
notice describing the particulars of the occurrence.
(b) The suspension of performance is of no greater scope and of no
longer duration than is required by the Force Majeure.
(c) The non-performing Party uses its best efforts to remedy its
inability to perform.
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20.2 When the non-performing Party is able to resume performance of its
obligations under this Agreement, that Party shall give the other
Party written notice to that effect.
20.3 This Section 20 shall not require the settlement of any strike,
walkout, lockout or other labor dispute on terms which, in the sole
judgment of the Party involved in the dispute, are contrary to its
interest. It is understood and agreed that the settlement of strikes,
walkouts, lockouts or other labor disputes shall be at the sole
discretion of the Party having the difficulty.
20.4 In the event a Party is unable to perform due to legislative,
judicial, or regulatory agency action, this Agreement shall be
renegotiated to comply with the legal change which caused the
non-performance.
20.5 This Section 20 shall not require Edison to pay for energy or capacity
not actually delivered. Seller shall have no right to receive payment
for energy and capacity which is not actually delivered to the Point
of Delivery, irrespective of whether the nondelivery is caused in
whole or in part by a Force Majeure.
21. REVIEW OF RECORDS AND DATA
Edison shall, after giving written notice to Seller, have the right to
review and obtain copies of metering records and operations and maintenance
logs of the Generating Facility.
22. ASSIGNMENT
Neither Party shall voluntarily assign its rights nor delegate its duties
under this Agreement without the written consent of the other Party, except
in connection with the sale or merger of all or a substantial portion of
its properties. Any such assignment or delegation made without such written
consent shall be null and void. Consent for assignment shall not be
withheld unreasonably.
23. ABANDONMENT
[This section intentionally left blank].
24. NON-DEDICATION
No undertaking by one Party to the other under any provision of this
Agreement shall constitute the dedication of that Party's system or any
portion thereof to the other Party or to the public or affect the status of
Edison as an independent public utility corporation or Seller as an
independent individual or entity and not a public utility.
25. NON-WAIVER
None of the provisions of this Agreement shall be considered waived by
either Party except when such waiver is given in writing. The failure of
26
any Party at any time or times to enforce any right or obligation with
respect to any matter arising in connection with this Agreement shall not
constitute a waiver as to future enforcement of that right or obligation or
any right or obligation of this Agreement.
26. SECTION HEADINGS
Section headings appearing in this Agreement are inserted for convenience
only and shall not be construed as interpretations of text.
27. GOVERNING LAW
This Agreement shall be interpreted, governed, and construed under the laws
of the State of California as if executed and to be performed wholly within
the State of California.
28. AMENDMENT, MODIFICATION OR WAIVER
Any amendments or modifications to this Agreement shall be in writing and
agreed to by both Parties.
29. SEVERAL OBLIGATIONS
Except where specifically stated in this Agreement to be otherwise, the
duties, obligations, and liabilities of the Parties are intended to be
several and not joint or collective. Nothing contained in this Agreement
shall be construed to create an association, trust, partnership, or joint
venture or impose a trust or partnership duty, obligation, or liability on
or with regard to either Party. Each Party shall be liable individually and
severally for its own obligations under this Agreement.
[Remainder of page left blank intentionally.]
27
30. SIGNATURES
IN WITNESS WHEREOF, the Parties hereto have caused two originals of this
Agreement to be executed by their duly authorized representatives. This
Agreement shall be deemed effective as of the Effective Date.
SOUTHERN CALIFORNIA EDISON
COMPANY, a California corporation
By:
/s/ Xxxxx X. Xxxxx
-------------------
Name:
Xxxxx Xxxxx
-------------------
Title:
Director, QF Resources
----------------------
Date:
6-23-05
----------------------
PAMC MANAGEMENT CORPORATION,
a Colorado corporation
By:
/s/ Xxxxxx Xxxxxx
----------------------
Name:
Xxxxxx Xxxxxx
----------------------
Title:
President
----------------------
Date:
June 23, 2005
----------------------
S-2
Appendix A
Time Of Delivery Periods
---------------------------------------------------------------------------------------------------------------------
Time of Delivery Periods ("XXX Periods")
---------------------------------------
---------------------------------------------------------------------------------------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
XXX Period Summer Winter Applicable Days
Jun 1st - Sep 30th Oct 1st - May 31st
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
On-Peak Noon - 6: 00 p.m. Not Applicable. Weekdays except Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
Mid-Peak 8: 00 a.m. - Noon 8: 00 a.m. - 9: 00 p.m. Weekdays except Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
6: 00 p.m. - 11: 00 p.m. Weekdays except Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
Off-Peak 11: 00 p.m. - 8: 00 a.m. 6: 00 a.m. - 8: 00 a.m. Weekdays except Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
9: 00 p.m. - Midnight Weekdays except Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
Midnight - Midnight 6: 00 a.m. - Midnight Weekends and Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
------------------------- --------------------------- -------------------------- ------------------------------------
Super-Off-Peak Not Applicable. Midnight - 6: 00 a.m. Weekdays, Weekends & Holidays.
------------------------- --------------------------- -------------------------- ------------------------------------
"Holiday" is defined as either New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Veterans Day, Thanksgiving Day, or Christmas Day.
When any Holiday falls on a Sunday, the following Monday will be recognized as a
Holiday. No change will be made for Holidays falling on Saturday.
00
Xxxxxxxx X
Xxxxxxxx Xxxxxxxxxx Edison Company's Tariff Rule No. 21
(to be inserted)
Appendix C
Interconnection Facilities Agreement
(to be inserted)
Appendix D
Meteorological Tower Side Letter
(to be inserted)
