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Exhibit 10.6
SCHEDULING AND SETTLEMENT AGREEMENT
BY AND BETWEEN
NEW YORK STATE ELECTRIC & GAS CORPORATION,
AES CREATIVE RESOURCES, L.P.,
AES EASTERN ENERGY, L.P., AND
EME HOMER CITY GENERATION L.P.
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TABLE OF CONTENTS
Page
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SECTION 1 - Factual Recitals...............................................
SECTION 2 - Definitions....................................................
SECTION 3 - Term and Termination...........................................
SECTION 4 - Scheduling and Operations......................................
4.1 Owner's Responsibilities.......................................
4.2 NYSEG's Responsibilities.......................................
4.3 Scheduling Procedure...........................................
4.3.1 Transfer of Data................................
SECTION 5 - Owner-Specific Inadvertent Energy Interchange..................
5.1 Inadvertent Energy Interchange.................................
5.2 Aggregate Inadvertent Energy Interchange.......................
5.3 Settlement of AIEI.............................................
5.4 Account Closeout at Commencement of NYISO Operations...........
SECTION 6 - Settlement of NYPP Energy Revenues and Charges.................
6.1 Parties' Responsibilities.....................................
6.2 Calculation and Tracking of Billing Units.....................
6.3 Settlement of Energy Revenues and Charges.....................
6.4 Hourly Correction.............................................
SECTION 7 - Operating Capacity Charges and Payments........................
7.4 Calculation of Operating Capacity Billing Units...............
7.5 Allocation of Operating Capacity Revenues and Charges.........
SECTION 8 - Other Charges..................................................
8.1 Control Performance System ("CPS") Payments...................
8.2 Gross Receipts Tax............................................
8.3 Other Charges.................................................
8.4 Service Charge................................................
SECTION 9 - Billing and Payment............................................
SECTION 10 - Confidentiality...............................................
10.1 Confidentiality of NYSEG.......................................
10.2 Confidentiality of Owners......................................
10.3 Confidentiality of Audits......................................
10.4 Remedies.......................................................
SECTION 11 - Events of Default.............................................
SECTION 12 - Party's Indemnification.......................................
12.1 Owners' Responsibility To Indemnify NYSEG...................... 34
12.2 NYSEG's Responsibility To Indemnify Owners.....................
12.3 Indemnification Procedures.....................................
12.4 Survival.......................................................
SECTION 13 - Creditworthiness..............................................
SECTION 14 - Force Majeure.................................................
SECTION 15 - Labor Relations...............................................
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SECTION 16 - Dispute Resolution.............................................
SECTION 17 - Representations................................................
17.1 Representations of NYSEG.......................................
17.1.1 Organization..........................................
17.1.2 Authority Relative to this Agreement..................
17.1.3 Regulatory Approval...................................
17.1.4 Compliance With Law...................................
17.2 Representations of AES.........................................
17.2.1 Organization..........................................
17.2.2 Authority Relative to this Agreement..................
17.2.3 Regulatory Approval...................................
17.2.4 Compliance With Law...................................
17.3 Representations of EME.........................................
17.3.1 Organization..........................................
17.3.2 Authority Relative to this Agreement..................
17.3.3 Regulatory Approval...................................
17.3.4 Compliance With Law...................................
SECTION 18 - Assignment/Change in Corporate Identity........................
SECTION 19 - Subcontractors.................................................
SECTION 20 - Independent Contractor Status..................................
SECTION 21 - Limitation of Liability........................................
SECTION 22 - Notices........................................................
SECTION 23 - Headings.......................................................
SECTION 24 - Waiver.........................................................
SECTION 25 - Counterparts...................................................
SECTION 26 - Governing Law..................................................
26.1 Laws and Regulations...........................................
SECTION 27 - Severability...................................................
SECTION 28 - Amendment......................................................
SECTION 29 - Entire Agreement...............................................
SECTION 30 - No Third Party Beneficiaries...................................
SECTION 31 - Further Assurances.............................................
APPENDIX A - DAILY SCHEDULING INFORMATION...................................
APPENDIX B - NYPP DATA REQUIREMENTS FOR EACH UNIT...........................
APPENDIX C - INFORMATION PROVIDED TO OWNER(S)...............................
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Scheduling and Settlement Agreement
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This Scheduling and Settlement Agreement ("Agreement"), dated as of
March 18, 1999, is entered into by and among New York State Electric & Gas
Corporation ("NYSEG"), a New York corporation with an office for the transaction
of business at Corporate Drive, Kirkwood Industrial Park, Binghamton, New York
13902-5225, EME Homer City Generation L.P. ("EME"), a Pennsylvania limited
partnership with a principal place of business at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and AES Eastern Energy, L.P., and AES
Creative Resources, L.P. (collectively, "AES"), each a Delaware limited
partnership with a principal place of business located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. AES and EME shall each be referred to as an
"Owner," and collectively, they shall be referred to as the "Owners." AES, EME,
and NYSEG shall individually be referred to as a "Party," and collectively, they
shall be referred to as the "Parties."
SECTION 1 - FACTUAL RECITALS
1. NYSEG, NGE Generation, Inc. ("NGE"), an affiliate of NYSEG, and AES
NY, L.L.C. entered into an Asset Purchase Agreement ("AES APA") dated as of
August 3, 1998, for the sale of NGE's fossil-fired generating facilities located
in the State of New York, and associated assets and liabilities, to AES NY,
L.L.C. AES N.Y., L.L.C. assigned certain of its rights and obligations under the
AES APA to AES Creative Resources, L.P., and AES Eastern Energy, L.P.
2. NYSEG, NGE, Pennsylvania Electric Company ("Penelec"), and Mission
Energy Westside, Inc. entered into an Asset Purchase Agreement ("MEW APA") dated
as of August 1, 1998, for the sale of NGE's respective interests in the ▇▇▇▇▇
City Generating Station located in Indiana County, Pennsylvania, and associated
assets and liabilities, to Mission Energy Westside, Inc. Pursuant to an
Assignment and Assumption Agreement dated as of November 6, 1998, Mission Energy
Westside, Inc. assigned its rights and obligations under the MEW APA to EME.
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3. Mission Energy Westside, Inc. executed an Interconnection Agreement
with NYSEG dated as of August 1, 1998 ("MEW IA"). AES NY, L.L.C. executed an
Interconnection Agreement with NYSEG dated as of August 3, 1998 ("AES IA") and
assigned to AES Creative Resources, L.P. and AES Eastern Energy, L.P. The AES IA
and MEW IA are collectively referred to as the "Interconnection Agreements."
4. The Interconnection Agreements provide that each Owner will schedule
its transactions, supplied from the generators purchased in whole or in part
from NGE to the extent such generators are considered part of the New York
control area, with the New York Power Pool ("NYPP") or the New York Independent
System Operator ("NYISO") through NYSEG and comply with NYPP or NYISO scheduling
requirements until (a) the Owner can schedule and settle directly with the NYPP
or NYISO, or (b) the Real-Time Market has been in operation for six (6) months,
or (c) by mutual agreement of NYSEG and an Owner, whichever occurs first. NYPP
will consider transaction schedules and energy purchases and sales made by the
Owners, pursuant to this Agreement, as transactions with NYSEG. During the
period that the Owners are scheduling through NYSEG, the Interconnection
Agreements require that deviations between scheduled transaction amounts and
generator output be settled monthly pursuant to mutually agreeable procedures.
The Parties have agreed to execute this Agreement to establish the process that
NYSEG and the Owners will use to submit transaction schedules, coordinate
inadvertent energy interchange, and settle accounts, with respect to the
generation facilities described above, with NYPP.
NYSEG shall function as an agent for the Owners to schedule and settle
Owner transactions through the NYPP. Each Party to this Agreement has a
market-based rate tariff on file with the Federal Energy Regulatory Commission.
To the extent that any Party sells energy to any other Party pursuant to this
Agreement, the Parties agree that this Agreement sets forth all terms and
conditions pursuant to which said sales shall occur under each Party's market
based rate authorization.
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SECTION 2 - DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, when used
with initial capitalization, whether singular or plural, the following terms
shall have the meanings set forth below. Any term used in this Agreement that is
not defined herein shall have the meaning customarily attributed to such term by
the electric utility industry in New York. All cross-references in this
Agreement to a Section or Appendix shall be to a Section or Appendix of this
Agreement unless otherwise stated.
- "Abnormal Conditions" shall mean any operating condition not
reasonably foreseeable by an Owner that requires that Owner to reduce the output
of or take off-line one or more of that Owner's Generator Units.
- "AES" shall mean AES Creative Resources, L.P., and AES Eastern
Energy, L.P.
- "AES APA" shall mean the Asset Purchase Agreement entered into by
NYSEG, NGE, and AES NY, L.L.C., dated as of August 3, 1998, as amended or
supplemented from time to time.
- "Aggregated Inadvertent Energy Interchange" or "AIEI" shall mean a
running total of the algebraic sum of the IEIs, differentiated by On-Peak and
Off-Peak hours, of all of the Generators owned by a specific Owner.
- "Base Point Signal" or "BPS" shall mean electronic signals sent by
the NYPP and ultimately received by Generators specifying the scheduled MW
output for each Generator Unit. BPS directing Generators to vary output to meet
submitted schedules and emergency requests for energy are sent on average every
five (5) minutes.
- "Business Day" shall mean any day of the week other than Saturday,
Sunday, and holidays recognized by NYPP. When an Owner enters into a transaction
to sell Energy or Operating Capacity or both for delivery into a control area
other than the New York control area, Business Day shall also not mean holidays
recognized by the operator of that control area.
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- "Desired Generation Signal" or "DGS" shall mean signals sent by NYSEG
to AES' Generators that NYSEG develops by combining each Unit's BPS with that
Unit's share of AES' regulation requirement to the extent that Unit is supplying
regulation.
- "Economy Dispatch Control Limits" or "EDC Limits" shall mean the
limits, set by the Owners or NYSEG, beyond which a Generator is not willing to
be dispatched.
- "EDC-Hi Limit" shall mean the upper EDC Limit.
- "EDC-Low Limit" shall mean the lower EDC Limit.
- "Energy" shall mean three phase, 60 cycle, electricity, measured in
units of MWh, that is purchased, sold, or otherwise scheduled by the Parties in
accordance with this Agreement.
- "Energy Control Center" or "ECC" shall mean NYSEG's Energy Control
Center and staff located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇.
- "Generator" shall mean, in the case of AES, one or more of the
following generating stations: Milliken, Goudey, Greenidge, Kintigh, Hickling
and ▇▇▇▇▇▇▇▇; and in the case of EME, that share of the ▇▇▇▇▇ City Generating
Station that is recognized by the NYPP as being subject to its scheduling
requirements. Generator shall also refer to all of the Units located on the site
of that Generator.
- "Generator Availability" shall mean whether a Generator is on-line
and able to supply Energy.
- "Generator Unit Loading" shall mean a Generator's hourly output,
measured in MWh/h.
- "Good Utility Practice" shall mean any of the applicable practices,
methods, and acts:
(a) required by NERC, NPCC, NYPP, New York State Reliability
Council, the System Operator, NYISO, FERC, NYPSC, OSHA, or the
successor of any of them, whether or not the Party whose
conduct is at issue is a member thereof;
(b) required by the policies and standards of NYSEG relating to
Emergencies or Abnormal Conditions;
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(c) set forth in NYSEG's Bulletin 86-01 as the same may be amended
or supplemented from time to time; or
(d) otherwise engaged in or approved by a significant portion of
the electric generation, transmission, and distribution
industry in the region during the relevant time period, or any
of the practices, methods or acts which, in the exercise of
reasonable judgment in light of the facts known at the time
the decision is made, could be expected to accomplish the
desired result at a reasonable cost consistent with law,
regulation, good business practices, reliability, safety, and
efficiency. Good Utility Practice is not limited to the
optimum practice, method or act to the exclusion of all
others, but rather to practices, methods or acts generally
accepted by the electric generation, transmission, and
distribution industry in the region.
- "Inadvertent Energy Interchange" or "IEI" shall mean the difference,
in each hour, between the BPS developed by the NYPP for a Generator Unit and the
actual Generator unit output (including variations in a Generator Unit's output
level caused by a Generator Unit's response to automatic generation control
signals to provide regulation and requests for Reserve Pick-up), differentiated
by On-Peak and Off-Peak hours. The Energy deficit or surplus that results when
an Owner intentionally under-schedules or over-schedules transaction(s) beyond
its actual generation output is not considered to be IEI and shall not be paid
back through settlement of like-in-kind Energy but shall be settled as a sale or
purchase as described in Section 6. NYSEG will not have its own separate IEI
accounts but will participate in the settlement of the Owner's accounts.
- "Interconnection Agreements" shall mean the Interconnection Agreement
executed by Mission Energy Westside, Inc. with NYSEG dated as of August 1, 1998
("MEW IA") and the Interconnection Agreement executed by AES NY, L.L.C. with
NYSEG dated as of August 3, 1998 ("AES IA").
- "MEW APA" shall mean Asset Purchase Agreement entered into by NYSEG,
NGE Generation, Inc. ("NGE"), an affiliate of NYSEG, Pennsylvania Electric
Company, and Mission Energy Westside, Inc., dated as of August 1, 1998, as
amended.
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- "New York Independent System Operator" or "NYISO" shall mean the
not-for-profit corporation established to function as the system operator for
the New York transmission system.
- "New York Power Pool" or "NYPP" shall mean an organization
established by agreement (the "New York Power Pool Agreement") made as of July
21, 1966, and amended as of July 16, 1991, by and among Central ▇▇▇▇▇▇ Gas &
Electric Corporation, Consolidated Edison Company of New York, Inc., Long Island
Lighting Company, New York State Electric & Gas Corporation, Niagara Mohawk
Power Corporation, Orange and Rockland Utilities, Inc., Rochester Gas and
Electric Corporation, and the Power Authority of the State of New York.
- "Off-Peak hours" or "Off-Peak Period" shall mean the hours between
11:00 p.m. and 7:00 a.m., prevailing eastern time, Monday through Friday, and
all day Saturday and Sunday, and NERC-defined holidays, or as otherwise decided
by NYPP.
- "On-Peak hours" or "On-Peak Period" shall mean the hours between 7:00
a.m. and 11:00 p.m. inclusive, prevailing eastern time, Monday through Friday,
except for NERC-defined holidays, or as otherwise decided by NYPP.
- "Operating Capacity" shall mean the maximum generation, measured in
MW, that can be sustained over a four (4) hour period under prevailing
conditions.
- "Operational Low Limit" shall mean the minimum level of generation,
measured in MW, that a Unit can sustain for an eight (8) hour period based on
physical constraints.
- "Operational High Limit" shall mean the highest output level,
measured in MW, in light of the operational conditions then existing, at which a
Generator Unit can safely operate for a sustained period of time consistent with
Good Utility Practice.
- "Owners" shall mean EME Homer City Generation L.P. and AES. AES
Eastern Energy, L.P. and AES Creative Resources, L.P. shall be considered to be
a single Owner.
- "Parties" shall mean the Owners and NYSEG.
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- "Point of Interconnection" or "POI" shall mean that point on the
transmission system where each Generator interconnects with NYSEG's system as
set forth in the Interconnection Agreements.
- "Real-Time Market" shall have the meaning provided in the December
19, 1997 Supplemental Filing to the Comprehensive Proposal to Restructure the
New York Wholesale Electric Market in FERC Docket Nos. ER97-1523-000,
OA97-470-000, and ER97 4234-000, as that term may be amended or supplemented
from time to time.
- "Reserve Pick-up" shall mean a NYPP request for emergency energy made
to a Generator to offset a sudden, unexpected, loss of transmission capability
or generation capacity or energy on the system.
- "Transaction Schedule" or "TS" shall mean the schedule submitted by
an Owner listing the information described Appendix A.
- "Unit Response Rate" shall mean the rate at which NYPP may request
that a Generator Unit's output be increased or decreased. Unit specific values
for Unit Response Rate are calculated in accordance with NYPP Procedure MP-15.
- "Unit" shall mean any one of the individual generating units located
at the site of a specific Generator.
SECTION 3 - TERM AND TERMINATION
3.1 Subject to Section 13, this Agreement shall become effective, as to
each Owner, on the date that the Owner takes title to the Generator(s) it
purchased from NGE, NYSEG and/or Pennelec (the "Transfer Date" as to that
Owner). Each Owner may have a different Transfer Date.
3.2 This Agreement shall terminate as to an Owner on the earlier of the
date (a) that Owner is able to send and receive information necessary to
schedule transactions with the New York Power Pool, and schedules and settles
directly with NYPP, or (b) upon which the Real-
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Time Market commences operation, or (c) NYSEG and an Owner mutually consent to
terminate this Agreement. This Agreement may terminate as to different Owners on
different dates.
SECTION 4 - SCHEDULING AND OPERATIONS
4.1 Owner's Responsibilities.
4.1.1 Each Owner shall provide NYSEG with the information
identified in Appendix A, including without limitation EDC-Hi and EDC-Low
Limits, Transaction Schedules, Generator Unit schedules, points of receipt and
points of delivery, and NERC tag numbers, according to the schedule and via the
method listed in Appendix A.
4.1.2 Each Owner shall submit only Transaction Schedules for
an amount in the aggregate that is between (a) the sum of its Generators'
Operational High Limits, and (b) the sum of its Generators' Operational Low
Limits.
4.1.3 Each Owner shall set its Generator's EDC-Hi and EDC-Low
Limits between (a) that Generator's Operational High Limit, and (b) that
Generator's Operational Low Limit.
4.1.4 Each Owner shall submit only Transaction Schedules for
an amount in the aggregate that is between (a) the sum of its Generators' EDC-Hi
Limits, and (b) the sum of its Generators' EDC-Low Limits. If, during the course
of a transaction, an Owner's Transaction Schedule(s) or Generators' EDC-Hi or
EDC-Low Limits change such that the aggregate amount of the Transaction
Schedules is no longer between the sum of its Generator's EDC-Hi and EDC-Low
Limits, the Owner shall:
(a) if the amount is above the upper limit,
raise the EDC-Hi Limits to the Generator's
respective Operational Hi-Limit or reduce
its TS or a combination of the two; or
(b) if the amount is below the lower limit,
lower the EDC-Low Limits to the Generator's
respective Operational Low Limit or increase
its TS or a combination of the two;
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until the conditions established in Sections 4.1.2 and 4.1.3 are met, all as
described in Section 4.3.
4.1.5 Each Owner may change a Generator's EDC Limits no more
frequently than once per clock hour, except if the change is required to
accommodate a non-economic change to a Unit's operating conditions or comply
with the provisions in Section 4.1.4.
4.1.6 AES shall operate its Generator(s) to respond to the
Desired Generation Signals that it receives from the ECC. EME shall operate its
Generator(s) to respond to directives communicated by telephone from the ECC. An
Owner shall not intentionally deviate from its DGS or directives, as applicable.
4.1.7 Each Owner shall comply with NYPP requests for emergency
energy, including requests for Reserve Pick-up.
4.1.8 RESERVED.
4.1.9 Each Owner shall be responsible to take all actions
necessary to arrange for transmission service and related services required to
support its transactions, including without limitation, reserving transmission
service utilizing each relevant transmission provider's OASIS, acquiring a NERC
tag number, submitting Transaction Schedules, and complying with the
requirements in the transmission provider's open-access transmission tariff.
4.1.10 Each Owner shall designate a single entity that will:
(i) send and receive all communications to and from NYSEG; (ii) settle IEI for
all of the Owner's Generators; and (iii) pay charges and receive revenues
associated with that Owner's purchases and sales of Energy and Operating
Capacity under this Agreement. Designation of such entity by an Owner shall not
relieve that Owner of its obligations and liabilities under this Agreement.
4.2 NYSEG's Responsibilities.
4.2.1 NYSEG shall transmit to Generators located in New York
State DGS that are between (a) the EDC-Hi Limit for that Generator provided to
NYSEG by the Generator's Owner, and (b) the EDC-Low Limit for that Generator
provided to NYSEG by the Generator's Owner.
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4.2.2 NYSEG shall act in good faith and in a reasonable manner
to communicate the information required to be communicated by this Agreement
between the Owner(s) and NYPP. If an Owner requests that NYSEG communicate such
information and either NYSEG is unsuccessful in communicating that information
to NYPP or NYPP informs NYSEG that it will not accept that information, NYSEG
shall notify that Owner within a reasonable period so that the Owner may make
alternative arrangements in a timely manner.
4.2.3 NYSEG shall, as agent for the Owners, arrange for the
sale or purchase or both of Energy or Operating Capacity or both in accordance
with this Agreement. Any such Energy or Operating Capacity sold or purchased by
NYSEG for an Owner shall be sold or purchased for the account of that Owner, and
that Owner shall, in the case of a sale, transfer title to that Energy or
Operating Capacity directly to the buyer, and, in the case of a purchase,
receive title to that Energy or Operating Capacity directly from the seller,
such that NYSEG does not take title to that Energy or Operating Capacity.
NYSEG's responsibility as agent for each Owner shall be limited to the
transactions described above in this Section 4.2.3.
4.2.4 NYSEG shall provide each Owner with the information
identified in Appendix C according to the schedule and via the method specified
in Appendix C.
4.3 Scheduling Procedure.
4.3.1 Transfer of Data.
(a) No later than 11:00 AM each day, each Owner
shall provide NYSEG with the information
required in Appendix A for the next Business
Day. A schedule submitted for the next
Business Day (1) will start at 0000 hours
the day after the day on which the schedule
is submitted and (2) will end at 2400 on
that Business Day. If one or more
non-Business Days intervene between the date
the schedule is submitted and the next
Business Day, each Owner shall also submit a
schedule for each of the intervening
non-Business Days.
(b) Each Owner shall provide the data described
in Appendix B on or before its respective
Transfer Date as described in Section 3.1
and no later than one (1) Business Day prior
to the date upon which an Owner implements a
change to said data.
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(c) All times referred to in this Section 4.3.1
shall be the prevailing eastern time.
4.3.2 Each Owner shall notify NYSEG as soon as reasonably
practicable of any changes to its TS(s), Generator Unit Loading or Generator
Availability.
4.3.3 An Owner may submit a schedule change for a transaction
in the next hour no later then 40 minutes prior to the beginning of the next
hour ("Minimum Notice").
4.3.4 If the sum of the EDC-Hi Limits of all of an Owner's
Generators is less than the Energy required to be sold under the Owner's TS, and
the EDC-Hi Limits may reasonably be raised, then the Owner shall direct NYSEG to
raise the EDC-Hi Limits for any or all of its Generators to aggregate levels
greater than or equal to the lesser of the aggregate of the Generators'
Operational High Limits or the TS, but in no event greater than the aggregate of
the Operational High Limits. If the Owner cannot reasonably raise Generator
EDC-Hi Limits or decides not to raise the EDC-Hi Limits, the Owner shall submit
a schedule change to cut or reduce the TS amount to an amount less than or equal
to the aggregate EDC-Hi Limits. Unless otherwise agreed by NYSEG, a schedule
change must comply with all schedule change requirements including the Minimum
Notice requirement.
4.3.5 If the sum of the EDC-Low Limits of all of an Owner's
Generators is greater than the Energy required to be sold under the Owner's TS,
and the EDC-Low Limits may reasonably be lowered, then the Owner shall direct
NYSEG to lower the EDC-Low Limits for any or all of its Generators to a level
less than or equal to the higher of the aggregate of the Generators' Operational
Low-Limits or the TS amount, but in no event less than the aggregate of the
Operational Low Limits. If the Owner cannot reasonably lower Generator EDC-Low
Limits or decides not to lower the limits, the Owner shall submit a schedule
change to increase the TS amount to an amount greater than or equal to the
aggregate of the EDC-Low Limits. Unless otherwise excepted by NYSEG, a schedule
change must comply with all schedule change requirements including the Minimum
Notice requirement.
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4.3.6 During Abnormal Conditions, an Owner may submit a
schedule change that does not comply with the Minimum Notice requirement. NYSEG
shall exercise good faith to communicate the change request to NYPP.
SECTION 5 - OWNER-SPECIFIC INADVERTENT ENERGY INTERCHANGE
NYSEG shall calculate and track each Generator's IEI and each Owner's
AIEI, and initiate settlement, all as described below.
5.1 Inadvertent Energy Interchange.
5.1.1 NYSEG shall calculate the IEI during On-Peak and
Off-Peak hours for each Generator in each hour as follows:
IEI = GENERATOR METERED OUTPUT - INTEGRATED BPS
Where:
IEI is Inadvertent Energy Interchange. IEI may be positive (a
Unit operates at a level above the BPS) or negative (a Unit
operates at a level below the BPS).
INTEGRATED BPS is the time-weighted Generator BPS in an hour,
as calculated by NYSEG, based on data it receives from NYPP.
GENERATOR METERED OUTPUT is an amount (a) determined by NYSEG
based on readings of the Generator's output meter each hour,
and (b) for AES' Generators only, corrected for losses, in
accordance with the AES IA.
5.1.2 NYSEG shall track each Generator's On-Peak and Off-Peak
IEI in a separate account.
5.2 Aggregate Inadvertent Energy Interchange.
5.2.1 NYSEG shall calculate the AIEI during On-Peak and
Off-Peak hours for each Owner and keep a running total in separate accounts.
5.2.2 NYSEG shall initiate AIEI settlement in accordance with
Section 5.3.
5.3 Settlement of AIEI.
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5.3.1 Each Owner shall settle its On-Peak or Off-Peak AIEI
account when that Owner's accounts reaches a negative or positive amount of 500
MWh, or such other amount mutually agreed to by that Owner and NYSEG.
5.3.2 If NYSEG requires settlement, then the following
scheduling procedures apply:
(a) If the Owner's AIEI account is negative, the
Owner shall schedule and deliver Energy to
NYSEG at the POI designated by NYSEG, other
than the ▇▇▇▇▇▇▇ Generating Station, and at
no cost to NYSEG to settle its AIEI account
in consecutive On-Peak or Off-Peak hours, as
appropriate, until the balance is zero.
Absent the mutual agreement of the Owner and
NYSEG, NYSEG shall designate a settlement
rate from one (1) MWh/h to ten (10) MWh/h.
The Owner and NYSEG may mutually agree to a
higher settlement rate case-by-case.
(b) If the Owner's AIEI account is positive,
NYSEG shall schedule and deliver Energy to
Owner at the POI designated by Owner, other
than the ▇▇▇▇▇▇▇ Generating Station, and at
no cost to that Owner to settle its AIEI
account in consecutive On-Peak or Off-Peak
hours, as appropriate, until the balance is
zero. NYSEG may use any energy resource
available to supply the Energy including
without limitation: (i) purchases from NYPP,
non-utility generators and other third
parties; (ii) Energy generated by NYSEG's
generating facilities; and (iii) Energy
acquired from an Owner.
5.4 Account Closeout at Commencement of NYISO Operations.
At the commencement of NYISO operations, NYSEG shall schedule each
Owner's outstanding AIEI account balance to be settled regardless of the amount
in each account.
5.4.1 NYSEG shall submit the Transaction Schedules to settle
the accounts to the NYISO as bilateral transactions, consistent with the
criteria established in Section 5.3, among the Parties in accordance with the
NYISO Tariff.
5.4.2 All fees and charges imposed by a third party, including
without limitation the NYISO or the NYPP, which are incurred by NYSEG, that are
associated with the scheduling and administration of the bilateral transactions
will be passed through to the Owner for whom NYSEG is submitting the TS.
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5.4.3 Each Owner or NYSEG shall schedule and deliver Energy to
NYSEG or an Owner(s), as appropriate, at a POI(s) designated by NYSEG and at no
cost to NYSEG or the Owner(s) to settle its outstanding AIEI account balances in
consecutive On-Peak or Off-Peak hours, as appropriate, until the balance is
zero.
SECTION 6 - SETTLEMENT OF NYPP ENERGY REVENUES AND CHARGES
6.1 Parties' Responsibilities.
6.1.1 NYSEG shall allocate among the Parties all costs
incurred and all revenues received by NYSEG, for Energy transactions with NYPP
or the other Parties conducted under this Agreement ("Energy Revenues and
Charges"), as described in Section 4, according to each Party's contribution to
the transactions, as described in this Section 6.
6.1.2 All settlements of Energy Revenues and Charges among the
Parties will be made in accordance with the procedures described in this Section
6 and Section 9.
6.1.3 All settlements with NYPP will be made by NYSEG in
accordance with the NYPP Agreement and NYPP rules and procedures.
6.1.4 Each Owner shall make payments to NYSEG when due in
accordance with Section 9. NYSEG shall make payments to each Owner when due in
accordance with Section 9.
6.1.5 If any Party, sixty (60) days after the latest Transfer
Date described in Section 3.1, and every sixty (60) days thereafter during the
term of this Agreement, reasonably concludes that the settlement formulae
provided in Section 6 do not accurately or fairly allocate costs and revenues
among the Parties proportionate to the Party's transactions, the Parties hereby
agree to negotiate in good faith to modify the formulae. To be effective,
modification of existing formulae requires the mutual agreement of all Parties.
During such negotiations, the existing formulae shall remain in effect. If the
existing formulae are ultimately modified, the costs and revenues that were
allocated prior to the date such modifications were accepted shall not be
subject to correction or true-up. A Party requesting formulae modification shall
provide the
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other Parties with written notice at least fifteen (15) days prior to date
described above upon which negotiations would commence.
6.2 Calculation and Tracking of Billing Units.
6.2.1 NYSEG shall determine each Owner's billing units, in
MWh, for each hour in each billing month, as follows:
(a) NYSEG shall calculate the billing units for each
Generator ("Generator billing units").
(i) The calculation of each Generator's billing
units shall be based on the integration of
the Generator's BPS signals that NYSEG
receives from NYPP, applicable each hour.
NYSEG shall not consider a Generator's
metered output when calculating Generator
billing units.
(ii) NYSEG shall calculate Generator billing
units for Energy bought by each Owner
("EBuy") and Energy sold by each Owner
("ESell") utilizing the following equations:
EBUY = IBPS - TSA (if negative, or zero if positive); and
ESELL = IBPS - TSA (if positive, or zero if negative).
Where:
EBUY shall mean the amount of Energy, measured in MWh,
purchased pursuant to this Agreement by a Party in a specific
hour during a billing month, as calculated by NYSEG.
ESELL shall mean the amount of Energy, measured in MWh, sold
pursuant to this Agreement by a Party in a specific hour, as
calculated by NYSEG.
IBPS is an amount equal to the integration of BPS signals
transmitted during a specific hour for a specific Generator.
TSA is the amount of Energy, measured in MWh, sold from a
specific Generator, during a specific hour as designated in
the Transaction Schedule.
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(b) NYSEG shall calculate the billing units for each
Owner by aggregating the Generator billing units
calculated in Section 6.2.1(a), of all of an Owner's
Generator(s), for the billing month.
6.2.2 NYSEG shall calculate billing units associated with
NYSEG's sales and purchase(s), in MWh, for each hour in each billing month,
using the following equation:
TRANSACTION = NYSEG RESOURCES - TS SELL - RETAIL LOAD
Where:
NYSEG RESOURCES is the sum, measured in MWh as calculated by
NYSEG, in a specific hour in a billing month, of (a) the
output of non-utility generators (excluding station service)
under contract with NYSEG to supply energy, (b) the output of
generators owned or operated, in whole or in part, by NYSEG,
and (c) the energy associated with NYSEG's wholesale purchases
of energy from other entities.
TS SELL is the sum, measured in MWh as calculated by NYSEG, in
a specific hour in a billing month, of wholesale energy sales
made by NYSEG.
RETAIL LOAD is the sum, measured in MWh as calculated by
NYSEG, in a specific hour in a billing month, of retail energy
sales made by NYSEG.
TRANSACTION is the amount, in MWh, in a specific hour in a
billing month, either (a) purchased, if the amount is negative
("NYSEG Buy"), or (b) sold, if the amount is positive ("NYSEG
Sell"), by NYSEG in that hour.
6.3 Settlement of Energy Revenues and Charges.
NYSEG shall allocate the Energy Revenues and Charges among the Parties
utilizing the following PROCEDURE:
6.3.1 When the aggregate amount of Energy, measured in MWh and
determined by NYPP, that the Parties purchase from NYPP in a specific hour
during a billing month ("PBuy") is less than or equal to the amount of Energy,
measured in MWh and determined by
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NYPP, that the Parties sell to NYPP, in an amount greater than zero, in a
specific hour during a billing month ("PSell"), then NYSEG will calculate each
Party's share of the Energy Revenues and Charges for that hour in the following
order:
(a) NYSEG shall allocate the cost charged by NYPP for the Energy
purchased by the Parties in each hour of the billing month
("PBuy Charge") among the Parties as follows:
(i) Where PBuy and TEBuy are greater than zero, NYSEG
will allocate this PBuy Charge to each of the Parties
based on the following formula:
PBUY CHARGE X (EBUY/TEBUY)
where:
EBUY is the Energy bought from NYPP by a Party in that hour.
TEBUY shall mean the total amount of Energy, measured in MWh,
bought by all Parties in a specific hour in a billing month,
as calculated by NYSEG. TEBuy is the sum of each Parties' EBuy
in the same hour.
PBUY CHARGE shall mean the charge, measured in dollars, owed
by NYSEG to NYPP for PBuy in a specific hour during a billing
month, as provided by NYPP.
(ii) Each Party shall pay to NYSEG the amount calculated
in the preceding Section 6.3.1(a)(i).
(iii) Where TEBuy minus PBuy is greater than zero, NYSEG
will allocate the difference, in MWh, (the "EBuy
Remainder") to each of the Parties in accordance with
the following formula and clear the difference as a
sale of Energy as described in Section 6.3.1(b).
EBUY RS = EBUY REMAINDER X (EBUY/TEBUY)
Where:
EBUY RS is the proportion of the EBuy Remainder
credited to that Party.
(iv) Where PBuy is greater than zero (the NYPP recognized
a purchase of Energy) but TEBuy equals zero (the
billing determinants calculated by NYSEG for each
Owner do not indicate that the
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Parties purchased Energy from NYPP), NYSEG will
allocate PBuy Charge (as "RC") as described in
Section 6.3.1(b)(i).
(b) NYSEG shall allocate the revenues paid by NYPP for the Energy
sold by the Parties in each hour of the billing month ("PSell
Revenue") and any charge remaining from Section 6.1.3.(a)(iv)
(previous section) among the Parties as follows:
(i) Each Party's share shall be calculated utilizing the
following equation:
(PSELL REVENUE - RC) X (ESELL - EBUY RS)/(TESELL - EBUY REMAINDER)
Where:
RC is the remaining charge, if any, described in Section 6.3.1(a)(iv).
PSELL REVENUE is the revenue, measured in dollars, paid by NYPP to
NYSEG for PSell in a specific hour in a billing month, and is provided
by NYPP.
TESELL shall mean the total amount of Energy, measured in MWh, sold by
all Parties in a specific hour, as calculated by NYSEG. TESell is the
sum of each Parties' ESell in the same hour.
(ii) Each Party shall if the amount calculated in Section
6.3.1(b)(i) is (1) less than zero, pay that amount to
NYSEG; or (2) greater than zero, receive that amount
from NYSEG.
6.3.2 When PBuy is greater than PSell, then NYSEG will calculate each
Party's share of the Energy Revenues and Charges in the following order:
(a) NYSEG shall allocate PSell Revenue among the Parties as
follows:
(i) Where PSell and TESell are greater than zero, NYSEG
will allocate PSell Revenue to the Parties based on
the following formula:
PSELL REVENUE X (ESELL)/(TESELL)
(ii) If TESell minus PSell is greater than zero, the
difference, in MWh, (the "ESell Remainder") will be
allocated to each of the Parties and cleared as a
purchase of Energy as described in Section 6.3.2(b).
ESELL RS = ESELL REMAINDER X (ESELL/TESELL)
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Where:
ESELL RS is the proportion of the EBuy Remainder
credited to that Party.
(iii) Where PSell is greater than zero (the NYPP
recognized a sale of Energy from the NYPP)
but TESell equals zero (the billing
determinants calculated by NYSEG for each
Owner do not indicate that a sale was made),
NYSEG will allocate PSell Revenue (as "RR")
as described in Section 6.3.2(b).
(b) NYSEG shall allocate PBuy Charge and any revenue
remaining from Section 6.3.2(a)(iii) among the
Parties as follows:
(i) Each Party's share shall be calculated
utilizing the following equation:
(PBUY CHARGE - RR) X (EBUY - ESELL RS)/(TEBUY - ESELL REMAINDER)
Where: RR is the remaining revenue, if any, described in Section 6.3.2(a)(iii).
(ii) Each Party shall, if the amount calculated
in Section 6.3.2(b)(i) is (1) less than
zero, receive that amount from NYSEG; or (2)
greater than zero, pay that amount to NYSEG.
6.3.3 If PBuy and PSell both equal zero, then NYSEG shall calculate an
average rate ("RAVG") for the preceding four (4) hours in the same period, in
units of dollars per MWh, to be paid by purchasers, for purchases of Energy from
the other Party(s), to the seller of that Energy, as follows:
RAVG = (R1 + R2 + R3 + R4) / 4
Where:
R1 = (PBuy Revenue + PSell Revenue)/(PBuy + PSell) calculated for the
preceding hour in the same type of Period (On-Peak or Off-Peak).
R2 = (PBuy Revenue + PSell Revenue)/(PBuy + PSell) calculated for the
hour preceding the R1 hour in the same type of Period (On-Peak or
Off-Peak).
R3 = (PBuy Revenue + PSell Revenue)/(PBuy + PSell) calculated for the
hour preceding the R2 hour in the same type of Period (On-Peak or
Off-Peak).
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R4 = (PBuy Revenue + PSell Revenue)/(PBuy + PSell) calculated for the
hour preceding the R3 hour in the same type of Period (On-Peak or
Off-Peak).
If, in any of the four preceding hours, PBuy and PSell both equal zero,
then NYSEG shall use data from the hour preceding that hour to calculate RAVG.
6.4 Hourly Correction.
6.4.1 If, after receiving the billing statement described in
Section 9.1, an Owner believes that (a) the revenue received in any
hour (in which that Owner's TS was between the aggregate of that
Owner's EDC-Hi and EDC-Low Limits) for that Owner's sales pursuant to
this Agreement is less than that Owner's incremental cost for those
same sales, or (b) the charge incurred in any hour (in which that
Owner's TS was between the aggregate of that Owner's EDC-Hi and EDC-Low
Limits) for that Owner's purchases pursuant to this Agreement is
greater than that Owner's incremental cost for those same purchases,
then that Owner may request that NYSEG review the billing data for that
hour. Owner shall provide to NYSEG the data and results of Production
Cost calculations described below for the hour(s) in question. NYSEG,
upon request of the Owner, shall review said data and calculations. If
NYSEG's review confirms the Owner's findings, NYSEG shall compensate
that Owner for the difference in cost as described below.
6.4.2 Owner As A Net Seller: If, in the aggregate of all the
Owner's Generators, the Owner was a net seller of Energy in the hour in
question, and the Owner's PC-IBPS for that hour was greater than the Owner's
PC-TSA for that hour, then NYSEG shall calculate the amount to be paid to that
Owner as follows:
HOURLY CORRECTION = PC-IBPS - PC-TSA - DOLLARS RECEIVED
Where:
"PC" or "PRODUCTION COST" shall mean the cost, at a specific Unit
output level, calculated using the incremental cost curve submitted by
each Owner to NYPP in accordance with Appendix A.
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"PC-IBPS" shall mean the sum of the Production Costs for each of an
Owner's Generator Units, in a specific hour, measured at each Unit's
Integrated Base Point Signal and calculated in accordance with Section
5.1.1.
"PC-TSA" shall mean the sum of the Production Costs for each of an
Owner's Generator Units, in a specific hour, measured at the TSA
calculated in accordance with Section 6.2.1(a).
"DOLLARS RECEIVED" by an Owner shall be equal to (1) if Section 6.3.1
was used to settle, the amount calculated in Section 6.3.1(b)(ii)(2),
or (2) if Section 6.3.2 was used to settle, the sum of the amounts
calculated in Sections 6.3.2.(a)(i) and 6.3.2(b)(ii)(1).
6.4.3 Owner As A Net Buyer: If, in the aggregate of all the
Owner's Generators, the Owner was a net buyer of Energy in the hour in question,
and the Owner's PC-TSA for that hour was greater than the Owner's PC-IBPS for
that hour, then NYSEG shall calculate the amount to be paid to that Owner as
follows:
HOURLY CORRECTION = PC-IBPS - PC-TSA + DOLLARS PAID
Where:
"DOLLARS PAID" by Owner shall be equal to (1) if Section 6.3.1 was used
to settle, the sum of the amounts calculated in Section 6.3.1(a)(ii)
and 6.3.1(b)(ii)(1), or (2) if Section 6.3.2 was used to settle, the
amount calculated in Section 6.3.2.b(ii)(2).
SECTION 7 - OPERATING CAPACITY CHARGES AND PAYMENTS
7.1 NYSEG shall allocate among the Parties all capacity-related costs
incurred or revenues received by NYSEG for transactions with the NYPP conducted
under this Agreement ("Capacity Revenues and Charges"), as described in Section
4, according to each Owner's contribution to the transactions described in this
Section 7.
7.2 All settlements of Capacity Revenues and Charges among the Parties
will be made in cash and in accordance with the procedures described in this
Section 7 and Section 9.
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7.3 All settlements with NYPP will be made by NYSEG in accordance with
the NYPP Agreement and NYPP rules and procedures.
7.4 Calculation of Operating Capacity Billing Units.
7.4.1 NYSEG shall calculate each Owner's Operating Capacity
surplus ("OwnerOpCapSurplus") or Operating Capacity shortage
("OwnerOpCapShortage") for each hour in each billing month as follows:
(a) Where the sum of the Operating Capacity of each of an
Owner's Generators, measured in MW, in a specific
hour ("OwnerOpCap"), is greater than the sum of the
Operating Capacity scheduled to be sold pursuant to
that Owner's TS or required by NYPP in that specific
hour, that Owner shall be credited the difference as
OwnerOpCapSurplus.
(b) Where the sum of the Operating Capacity of each of an
Owner's Generators, measured in MW, in a specific
hour ("OwnerOpCap"), is less than the sum of the
Operating Capacity scheduled to be sold pursuant to
that Owner's TS in that specific hour, that Owner
shall be debited the difference as
OwnerOpCapShortage.
7.4.2 NYSEG shall calculate NYSEG's Operating Capacity billing
units associated with NYSEG's sales and purchase, in MWh, for each hour in each
billing month, using the following equation:
TRANSACTION = NYSEGOPCAPRESOURCES - OPCAPSALES - RETAIL LOAD OPCAP - RESERVE
REQUIREMENT
Where:
NYSEGOPCAPRESOURCES is the sum, measured in MW as calculated by NYSEG,
in a specific hour in a billing month, of (a) the Operating Capacity actually
made available by non-utility generators (excluding station service) under
contract with NYSEG to supply Operating Capacity, (b) the Operating Capacity
actually made available by generators owned or operated, in whole or in part, by
NYSEG, and (c) the Operating Capacity associated with NYSEG's wholesale
purchases of Operating Capacity from other entities.
OPCAPSALES is the sum, measured in MW as calculated by NYSEG, in a
specific hour in a billing month, of Operating Capacity sales made at wholesale
by NYSEG.
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RETAIL LOAD OPCAP is the sum, measured in MW as calculated by NYSEG, in
a specific hour in a billing month, of Operating Capacity needed to support
NYSEG's retail load
TRANSACTION is the amount Operating Capacity, in MW, in a specific hour
in a billing month, either (a) purchased by NYSEG, if the amount is negative
("OpCapShortage"), or (b) sold by NYSEG, if the amount is positive
("OpCapSurplus").
RESERVE REQUIREMENT is NYSEG's operating capacity reserve requirement
as determined by NYPP.
7.5 Allocation of Operating Capacity Revenues and Charges.
7.5.1 If NYPP charges NYSEG for operating capacity purchase,
that charge shall be allocated among the Parties for payment in an amount
proportional to each Party's contribution to capacity deficiency as follows:
PARTY'S SHARE = CHARGE X (PARTY'S OPCAPSHORTAGE/TOTAL OPCAPSHORTAGE)
Where:
CHARGE is the amount, in dollars, owed to NYPP for capacity purchases
for each hour.
TOTAL OPCAPSHORTAGE is the amount of capacity, as determined by NYPP,
that NYSEG purchased from NYPP for each hour.
7.5.2 If NYYP pays NYSEG revenues for operating capacity
sales, that revenue shall be allocated among the Parties in an amount
proportional to each Parties contribution to capacity surplus as follows:
PARTY'S SHARE = REVENUE X (PARTY'S OPCAPSURPLUS/TOTAL OPCAPSURPLUS)
Where:
REVENUE is the amount, in dollars, received by NYPP for operating
capacity sales.
TOTAL OPCAPSURPLUS is the amount of capacity, as determined by NYPP,
that NYSEG sold to NYPP.
SECTION 8 - OTHER CHARGES
8.1 RESERVED.
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8.2 Gross Receipts Tax.
If NYSEG is assessed a gross receipts tax for any transaction it
undertakes on behalf of an Owner, NYSEG shall ▇▇▇▇ that Owner and that Owner
shall pay the tax in accordance with the procedures described in Section 9.
8.3 Other Charges.
Any cost associated with NYSEG's transactions with NYPP under this
Agreement that may be reasonably allocated to a specific Party shall be
allocated to that Party, and that Party shall pay NYSEG for that allocable cost.
Costs incurred by NYSEG that are not allocable to a specific Party(s) shall be
apportioned evenly among all Parties, and each Party shall pay NYSEG for that
allocable cost.
8.4 Service Charge.
Each Owner shall pay to NYSEG a one time service fee of $15,000 within
ten (10) days of the Transfer Date of this Agreement as described in Section 3.
Said payment will constitute all payments required by each Owner for the billing
and ECC related services rendered by NYSEG hereunder.
SECTION 9 - BILLING AND PAYMENT
9.1 Unless otherwise agreed, NYSEG shall send each Owner a statement
showing charges due from or payments due to the Owner, or both, as calculated in
accordance with this Agreement, for the preceding billing month, on or before
the later of (a) the fifteenth (15th) day of each month or (b) ten (10) days
after NYSEG receives a statement from NYPP.
9.2 Subject to Section 9.3, each Party that is obligated to make a
payment under this Agreement shall do so by wire transfer to the receiving
party's bank on or before the later of (i) ten (10) days after receipt of the
statement rendered by NYSEG, or (ii) on the first banking day common to the
Parties following the nineteenth (19th) day of the month in which NYSEG rendered
its statement. Payments received after the due date shall bear interest at the
annual rate of one (1) percentage point over the interest rate on prime
commercial loans then in effect at the
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main office of Chase Manhattan Bank, N.A., located in New York, N.Y. calculated
from the due date of the invoice to the date of payment. Bills may be based in
part on estimates. Each such statement shall be subject to correction or
adjustment within a reasonable period not to exceed twenty-four (24) months for
any errors in arithmetic, computation, or estimates made by NYSEG, an Owner or
NYPP. Nothing herein precludes the Owners or NYSEG from partial settlement on
the estimated statement before the aforementioned deadline.
9.3 NYSEG shall make payments due to the Owners resulting from
transactions between the Parties and NYPP as soon as practicable but no later
then five (5) days after NYSEG receives those revenues from NYPP.
9.4 If two Parties are required to pay an amount to each other in the
same billing month under a provision of this Agreement or any other agreement
between the two Parties, then such amounts shall be aggregated and those Parties
shall discharge their obligations to pay through netting, in which case the
Party, if any, owing the greater amount shall pay to the other Party the
difference between the amounts owed. Each Party reserves all rights, setoffs,
counterclaims, and other remedies and defenses which such Party has or may be
entitled to arising from or out of this Agreement or arising at law or in
equity. All transactions and the obligations to make payment in connection
therewith or under this Agreement, or any other agreements between these
Parties, may be offset against each other, set off, or recouped therefrom.
SECTION 10 - CONFIDENTIALITY
10.1 Confidentiality of NYSEG.
Each Owner consents to provide the information required pursuant to
this Agreement to NYSEG, including the employees in NYSEG's energy trading
department and the energy control center. NYSEG shall hold in confidence from
all non-Owners, unless compelled to disclose by judicial or administrative
process or other provisions of law, all documents and information furnished by
an Owner in connection with this Agreement. Except to the extent that such
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information or documents are (a) generally available to the public other than as
a result of a disclosure by NYSEG, (b) available to NYSEG on a non-confidential
basis prior to disclosure to NYSEG by an Owner, or (c) available to NYSEG on a
non-confidential basis from a source other than an Owner, provided that such is
not known by NYSEG to be bound by a confidentiality agreement with the Owner or
otherwise prohibited from transmitting the information to NYSEG by a
contractual, legal or fiduciary obligation, NYSEG shall not release or disclose
such information to any other person, except to its employees that need-to-know,
in connection with this Agreement without first having advised those persons of
the confidentiality provisions of this Section 10.1 and having obtained their
written agreement to comply with said provisions. In no event shall such
information be disclosed in violation of the requirements of FERC Order Nos. 889
and 889-A, and any successor thereto. NYSEG shall promptly notify the Owner if
it receives notice or otherwise concludes that the production of any information
subject to this Section 10.1 is being sought under any provision of law. NYSEG
may utilize information subject to this Section 10.1 in any proceeding under
Section 16. Notwithstanding this Section 10.1, NYSEG may communicate to NYPP any
Owner-related information required by the NYPP Agreement, rules or procedures to
coordinate Generator dispatch, schedule transactions or provide for billing.
10.2 Confidentiality of Owners.
Each Owner shall hold in confidence from all non-Parties, unless
compelled to disclose by judicial or administrative process or other provisions
of law, all documents and information furnished by the NYSEG in connection with
this Agreement. Except to the extent that such information or documents are (a)
generally available to the public other than as a result of a disclosure by an
Owner, (b) available to an Owner on a non-confidential basis prior to disclosure
to an Owner by NYSEG, or (c) available to an Owner on a non-confidential basis
from a source other than NYSEG, provided that such is not known by the Owner to
be bound by a confidentiality agreement with NYSEG or otherwise prohibited from
transmitting the information to an Owner by a contractual, legal or fiduciary
obligation, an Owner shall not
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release or disclose such information to any other person, except to its
employees that need-to-know, in connection with this Agreement without first
having advised those persons of the confidentiality provisions of this Section
10.2 and having obtained their written agreement to comply with said provisions.
In no event shall such information be disclosed in violation of the requirements
of FERC Order Nos. 889 and 889-A, and any successor thereto. Each Owner shall
promptly notify NYSEG if it receives notice or otherwise concludes that the
production of any information subject to this Section 10.2 is being sought under
any provision of law. An Owner may utilize information subject to this Section
10.2 in any proceeding under Section 16.
10.3 Confidentiality of Audits.
Subject to Sections 10.1 and 10.2, any Party may request that another
Party provide, within 10 days of such a request, information reasonably
necessary to audit scheduling of transactions or the construction of bills. Such
requests shall be in writing.
10.4 Remedies.
The Parties agree that monetary damages would be inadequate to
compensate a Party for another Party's breach of its obligations under this
Section 10. Each Party accordingly agrees, subject to Section 21, that Parties
shall be entitled to equitable relief, by way of injunction or otherwise, if any
other Parties breaches or threatens to breach its obligations under this Section
10, which equitable relief shall be granted without bond or proof of damages,
and the receiving Party shall not plead in defense that there would be an
adequate remedy at law.
SECTION 11 - EVENTS OF DEFAULT
11.1 Any one of the following shall constitute an event of default
under this Agreement:
11.1.1 The failure to pay any amount when due;
11.1.2 The failure of either Owner to comply with any or all
of the scheduling or operational requirements described in Sections 4 and 5;
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11.1.3 A breach of a material term or condition of this
Agreement, including but not limited to any material breach of a representation,
warranty or covenant made in this Agreement, including the Appendices;
11.1.4 A Failure by a Party to provide any required schedule,
report or notice hereunder, which failure is not cured within thirty (30) days
after notice to the defaulting Party;
11.1.5 The appointment of a receiver or liquidator or trustee
for either Party or of any property of a Party, and such receiver, liquidator or
trustee is not discharged within sixty (60) days;
11.1.6 The entry of a decree adjudicating a Party or any
substantial part of the property of a Party bankrupt or insolvent, and such
decree is continued undischarged and unstayed for a period of sixty (60) days;
or
11.1.7 The filing of a voluntary petition in bankruptcy under
any provision of any Federal or state bankruptcy law by a Party.
11.2 Notwithstanding Section 11.1, NYSEG's failure to communicate
information provided by an Owner to NYPP shall not constitute an event of
default under this Agreement.
11.3 (a) Upon the occurrence of an event of default, the Party not in
default ("Non-Defaulting Party") may give written notice of the event of default
to the Defaulting Party. Such notice shall set forth, in reasonable detail, the
nature of the event of default and, where known and applicable, the steps
necessary to cure such default. Except with respect to a payment default as
described in Section 11.1.1, the Defaulting Party shall have thirty (30) days
following receipt of such notice to (i) cure such default, or (ii) commence in
good faith all such steps as are reasonable and appropriate to cure such default
in the event such default cannot, in the reasonable judgment of the
Non-Defaulting Party, be completely cured within such thirty (30) day period.
With respect to the payment default, described in Section 11.1.1, the Defaulting
Party shall have ten (10) days from receipt of such default notice to cure such
default.
(b) If the Defaulting Party fails to cure such default or take
such steps as provided under subparagraph (a) above, the Non-Defaulting Party
may terminate this Agreement with
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respect to the Defaulting Party by providing written notice to the Party in
default thereof. This Agreement shall thereupon terminate as between the
Defaulting Party and the Non-Defaulting Party, and the Non-Defaulting Party may
exercise all such rights and remedies as may be available under this Agreement,
or at law or in equity. This Agreement will remain in full force and effect with
respect to NYSEG and the Party that was neither the Defaulting Party nor the
Non-Defaulting Party. Termination of this Agreement as to an Owner will result
in that Owner being unable to buy, sell or schedule energy through NYPP
utilizing NYSEG's membership.
(c) If this Agreement is terminated because of default, NYSEG
shall have the following rights with respect to the Defaulting Party, or if
NYSEG, with respect to the Party terminating this Agreement: (i) NYSEG may
recover and such other Party shall pay any and all costs that NYSEG incurs that
are associated with such other Party's transactions associated with that Party's
Generators including, without limitation, NYPP charges assessed against NYSEG
for purchases of supplemental capacity and energy; and (ii) NYSEG may remove
such other Party's Generators from NYSEG's control area. NYSEG's rights and such
other Party's obligations under this Section 11.3(c) shall continue in full
force and effect regardless of whether this Agreement expires, terminates or is
cancelled.
(d) Notwithstanding the foregoing, upon the occurrence of an event
of default, the Non-Defaulting Party shall be entitled to commence an action to
require the Defaulting Party to remedy such default and specifically perform its
duties and obligations hereunder in accordance with the terms and conditions
hereof.
11.4 If either Owner fails to perform any obligation under this
Agreement, NYSEG may cure the default, and any funds expended to effect such
cure shall be due and payable on demand together with interest at the prime
rate.
SECTION 12 - PARTY'S INDEMNIFICATION
A. Owners' Responsibility To Indemnify NYSEG.
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Each Owner shall indemnify, hold harmless, and defend NYSEG, its parent,
Affiliates, and successors (each an "Owner Indemnitee"), and their respective
officers, directors, employees, agents, subcontractors, and successors, from and
against any and all claims, demands, liabilities, costs, losses, judgments,
damages, and expenses (including, without limitation, reasonable attorney and
expert fees and reasonable disbursements in connection therewith (each a "Loss")
for damage to property, injury to or death of any person, including NYSEG's
employees, a third party's employees, or any third parties, to the extent caused
wholly or in part by any act or omission, negligent or otherwise, by such Owner
or its officers, directors, employees, agents, contractors, and subcontractors
arising out of or connected with this Agreement.
A. NYSEG's Responsibility To Indemnify Owners.
NYSEG shall indemnify, hold harmless, and defend the Owners, their parents,
Affiliates, and successors, and their respective officers, directors, employees,
agents, subcontractors, and successors (each a "NYSEG Indemnitee"), from and
against any and all losses for damage to property, injury to or death of any
person, including such Owner's employees, a third party's employees, or any
third parties, to the extent caused wholly or in part by any act or omission,
negligent or otherwise, by NYSEG or its officers, directors, employees, agents,
contractors, and subcontractors arising out of or connected with this Agreement.
12.3 Indemnification Procedures.
If any NYSEG Indemnitee or Owner Indemnitee intends to seek
indemnification under this Section 12, it shall give the party from whom
indemnification is sought (an "Indemnifying Party") notice of such a claim
within ninety (90) days of the commencement of, or such Indemnitee's actual
notice of, such claim or action. Such notice shall describe the claim in
reasonable detail, and shall indicate the amount (estimated, if necessary) of
the claim that has been, or may be sustained by, said Indemnitee. To the extent
that the Indemnifying Party shall have been actually and materially prejudiced
as a result of the failure to provide such notice, such notice will be a
condition precedent to any liability of the Indemnifying Party under the
provisions for indemnification contained in this Agreement.
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12.4 Survival.
The indemnification obligations of each Party under this Section 12
shall survive the expiration, termination or cancellation of this Agreement with
respect to those acts or omissions that occur during the term of this Agreement
for a period of six (6) years after such expiration, termination or
cancellation. Such obligations shall not be limited in any way by any limitation
on insurance, by the amount or types of damages, or by any compensation or
benefits payable by the parties under Worker's Compensation Acts, disability
benefit acts or other employee acts, or otherwise.
SECTION 13 - CREDITWORTHINESS
13.1 AES Eastern Energy, L.P. shall provide NYSEG with one or more
irrevocable standby letters of credit issued by a bank authorized to do business
in New York State with a minimum A (Standard and Poor's), or A2 (Moody's)
long-term unsecured debt rating for the period described in Section 13.3. The
first letter of credit shall be for the amount of $100,000.00. If either AES
Creative Resources, L.P.'s or AES Eastern Energy, L.P.'s transactions under this
Agreement result in charges in any month that exceed $75,000.00 or if NYSEG
withdraws more than $75,000.00 pursuant to a specific letter of credit as
reimbursement for charges arising under this Agreement, AES Eastern Energy, L.P.
shall issue to NYSEG, in addition to the first letter of credit, additional
letter(s) of credit that meet or exceed the criteria specified above, in an
amount, calculated by NYSEG, equal to twenty-five percent (25%) of the charges
expected to be incurred by both AES Creative Resources, L.P. and AES Eastern
Energy, L.P. for transactions under this Agreement for the term of this
Agreement.
13.2 EME shall provide NYSEG with one or more irrevocable standby
letters of credit issued by a bank authorized to do business in New York State
with a minimum A (Standard and Poor's), or A2 (Moody's) long-term unsecured debt
rating for the period described in Section 13.3. The first letter of credit
shall be for the amount of $100,000.00. If EME's transactions under this
Agreement result in charges in any month that exceed $75,000.00 or if NYSEG
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withdraws more than $75,000.00 pursuant to a specific letter of credit as
reimbursement for charges arising under this Agreement, EME shall issue to
NYSEG, in addition to the first letter of credit, additional letter(s) of credit
that meet or exceed the criteria specified above, in an amount, calculated by
NYSEG, equal to twenty-five percent (25%) of the charges expected to be incurred
by EME for transactions under this Agreement for the term of this Agreement.
13.3 Each Owner shall provide and maintain in effect the instrument of
creditworthiness described in Sections 13.1 and 13.2 for the term of this
Agreement and such additional time until all accounts between NYSEG, NYPP and
the other Parties related to the transactions conducted under this Agreement are
settled and closed.
SECTION 14 - FORCE MAJEURE
14.1 Notwithstanding anything in this Agreement to the contrary, no
Party shall be liable in damages, or otherwise responsible to another Party, for
its failure to carry out any of its obligations under this Agreement, other than
any obligation to pay an amount when due, if and only to the extent that it is
unable to so perform or is prevented from performing by an event of force
majeure.
14.2 The term "force majeure" as used herein means those causes beyond
the reasonable control of the Party affected, which by the exercise of
reasonable diligence, including Good Utility Practice, that Party is unable to
prevent, avoid, mitigate or overcome, including the following: any act of God,
labor disturbance (including a strike, or other labor dispute), act of the
public enemy, war, insurrection, fire, riot, storm or flood, explosion, solar
magnetic or other electrical system disturbance, order, regulation or
restriction imposed by governmental, military or lawfully-established civilian
authorities, or any other cause of a similar nature beyond a Party's reasonable
control.
14.3 If a Party shall rely on the occurrence of an event or condition
described above as a basis for being excused from performance of its obligations
under this Agreement, then the Party relying on the event or condition shall:
(a) provide prompt written notice of such event of
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force majeure or condition to the other Parties affected giving a detailed
written explanation of the event, including an estimation of its expected
duration and the probable impact on the performance of its obligations
hereunder; (b) exercise all reasonable efforts in accordance with Good Utility
Practice to continue to perform its obligations under this Agreement; (c)
expeditiously take reasonable action to correct or cure the event or condition
excusing performance; provided, however, that settlement of labor disputes will
be completely within the sole discretion of the Party affected by such labor
dispute; (d) exercise all reasonable efforts to mitigate or limit damages to the
other Parties; and (e) provide prompt notice to the other Party of the cessation
of the event or condition giving rise to its excuse from performance.
SECTION 15 - LABOR RELATIONS
The Parties agree to notify immediately any and all other Parties by telephone,
and then in writing, of any labor dispute (including a strike) or anticipated
labor dispute of which its management has actual knowledge that may reasonably
be expected to affect the operations of any or all of the other Parties with
respect to this Agreement.
SECTION 16 - DISPUTE RESOLUTION
16.1 Any disagreement between the Parties as to their rights and
obligations under this Agreement shall first be addressed by the Parties
affected. In the event that the Parties' representatives are unable in good
faith to resolve their disagreement satisfactorily, they shall refer the matter
to their respective senior management. If after using their good faith, best
efforts to try to resolve the dispute, senior management cannot resolve the
dispute in thirty (30) days, any Party involved in the dispute may exercise any
right or remedy available under this Agreement, at law or in equity.
16.2 Nothing in this Section 16 shall restrict the right of any Party
to file a complaint with the FERC under relevant provisions of the Federal Power
Act.
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SECTION 17 - REPRESENTATIONS
17.1 Representations of NYSEG.
NYSEG represents and warrants to the Parties as follows:
17.1.1 Organization.
NYSEG is a corporation duly organized, validly existing, and
in good standing under the laws of the State of New York, and NYSEG has the
requisite corporate power and authority to carry on its business as now being
conducted.
17.1.2 Authority Relative to this Agreement.
NYSEG has the requisite power and authority to execute and
deliver this Agreement and, subject to receipt of applicable regulatory
approvals, to carry out the actions required of it by this Agreement. The
execution and delivery of this Agreement and the actions it contemplates have
been duly and validly authorized by all required corporate action. The Agreement
has been duly and validly executed and delivered by NYSEG and, assuming that it
is duly and validly executed and delivered by the Owners, constitutes a legal,
valid and binding agreement of NYSEG enforceable in accordance with its terms
except to the extent such enforceability is affected by general principles of
equity or bank or insurance law.
17.1.3 Regulatory Approval.
NYSEG has obtained any and all approvals of, and given any
notices to, any public authority that are required for NYSEG to execute,
deliver, and perform its obligations under this Agreement.
17.1.4 Compliance With Law.
NYSEG represents and warrants that it is not in violation of
any applicable law, statute, order, rule, regulation promulgated or judgment
entered or entered by any Federal, state, or local governmental authority, which
violation would affect NYSEG's performance of its obligations under this
Agreement. NYSEG represents and warrants that it will comply with all applicable
material laws, rules, regulations, codes, and standards of all Federal, state,
and local governmental agencies having jurisdiction over NYSEG or this
Agreement.
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17.2 Representations of AES
Each of AES Eastern Energy, L.P., and AES Creative Resources, L.P.
represents and warrants to the Parties as follows:
17.2.1 Organization.
It is a limited partnership organized, validly existing, and
in good standing under the laws of the State of Delaware, and has the requisite
power and authority to carry on its business as now being conducted.
17.2.2 Authority Relative to this Agreement.
It has the requisite power and authority to execute and
deliver this Agreement and, subject to the receipt of applicable regulatory
approvals, to carry out the actions required of it by this Agreement. The
execution and delivery of this Agreement and the actions it contemplates have
been duly and validly authorized by all required action. This Agreement has been
duly and validly executed and delivered by AES Eastern Energy, L. P. and AES
Creative Resources, L.P. and, assuming that it is duly and validly executed and
delivered by the other Parties, constitutes a legal, valid and binding agreement
of AES Eastern Energy, L.P. or AES Creative Resources, L.P. (as the case may be)
enforceable in accordance with its terms except to the extent such
enforceability is affected by general principles of equity or bank or insurance
law.
17.2.3 Regulatory Approval.
It has obtained any and all approvals of, and given any
notices to, any public authority that are required to execute, deliver, and
perform its obligations under this Agreement.
17.2.4 Compliance With Law.
It is not in violation of any applicable law, statute, order,
rule, regulation or judgment promulgated or entered by any Federal, state, or
local governmental authority, which violation would affect it's performance of
its obligations under this Agreement. It represents and warrants that it will
comply with all applicable material laws, rules, regulations, codes, and
standards of all Federal, state, and local governmental agencies having
jurisdiction over it or this Agreement.
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17.3 Representations of EME.
EME represents and warrants to NYSEG as follows:
17.3.1 Organization.
EME is a Pennsylvania limited partnership organized, validly
existing, and in good standing under the laws of the Commonwealth of
Pennsylvania, and EME has the requisite power and authority to carry on its
business as now being conducted.
17.3.2 Authority Relative to this Agreement.
EME has the requisite power and authority to execute and
deliver this Agreement and, subject to the receipt of applicable regulatory
approvals, to carry out the actions required of it by this Agreement. The
execution and delivery of this Agreement and the actions it contemplates have
been duly and validly authorized by all required action. This Agreement has been
duly and validly executed and delivered by EME and, assuming that it is duly and
validly executed and delivered by the other Parties, constitutes a legal, valid
and binding agreement of EME enforceable in accordance with its terms except to
the extent such enforceability is affected by general principles of equity or
bank or insurance law.
17.3.3 Regulatory Approval.
EME has obtained any and all approvals of, and given any
notices to, any public authority that are required for EME to execute, deliver,
and perform its obligations under this Agreement.
17.3.4 Compliance With Law.
EME is not in violation of any applicable law, statute, order,
rule, regulation or judgment promulgated or entered by any Federal, state, or
local governmental authority, which violation would affect EME's performance of
its obligations under this Agreement. EME represents and warrants that it will
comply with all applicable material laws, rules, regulations, codes, and
standards of all Federal, state, and local governmental agencies having
jurisdiction over EME or this Agreement.
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SECTION 18 - ASSIGNMENT/CHANGE IN CORPORATE IDENTITY
18.1 This Agreement and all of the provisions hereof shall be binding
upon, and inure to the benefit of, the Parties and their respective successors
and permitted assigns, but neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned, subject to Section 18.2,
by any Party hereto, whether by operation of law or otherwise, without the prior
written consent of the other Parties, which consent shall not be unreasonably
withheld. Any assignment of this Agreement in violation of the foregoing shall
be, at the option of the non-assigning Parties, void.
18.2 NYSEG shall have the right to assign, without the consent of
either Owner, its rights and obligations under this Agreement to an Affiliate of
NYSEG that owns the transmission system. Each Owner shall have the right to
assign, without the consent of NYSEG or the other Owner, its rights and
obligations under this Agreement to an Affiliate of that Owner that owns one or
more of the Generators, or to a trustee, lending institutions or other party for
purposes of financing or refinancing that Owner's Generators. Notwithstanding an
Owner's right to assign this Agreement, that Owner shall maintain the instrument
of creditworthiness described in Section 13 (Creditworthiness) in effect for the
period described in Section 13.3.
18.3 No assignment under this Agreement by a Party shall relieve that
Party from liability and financial responsibility for the performance thereof
after any such assignment unless and until the transferee or assignee shall
agree in writing to assume the obligations and duties of that Party under this
Agreement and the non-assigning Parties have consented in their reasonable
discretion in writing to such assumption and to a release of the assigning Party
from such liability.
SECTION 19 - SUBCONTRACTORS
19.1 Nothing in this Agreement shall prevent a Party from utilizing the
services of such subcontractors as it deems appropriate to perform its
obligations under this Agreement; provided,
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however, that each Party shall require its subcontractors to comply with all
applicable terms and conditions of this Agreement in providing such services.
19.2 The creation of any subcontractor relationship shall not relieve
the hiring Party of any of its obligations under this Agreement. Subject to
Section 21, each Party shall be fully responsible to the other Parties for the
acts and/or omissions of any subcontractor it hires as if no subcontract had
been made. Any applicable obligation imposed by this Agreement upon a Party
shall be equally binding upon, and shall be construed as having application to,
any subcontractor of such Party.
SECTION 20 - INDEPENDENT CONTRACTOR STATUS
Subject to Section 4.2.3, nothing in this Agreement shall be construed as
creating any relationship between NYSEG and the Owners other than that of
independent contractors.
SECTION 21 - LIMITATION OF LIABILITY
21.1 Except for indemnity obligations set forth in Section 12, no
Party, nor their respective officers, directors, agents, employees, parents,
affiliates, successors or assigns shall be liable to any other Party or its
parent, subsidiaries, affiliates, officers, directors, agents, employees,
successors or assigns for claims, suits, actions or causes of action or
otherwise for incidental, punitive, special, indirect, multiple or consequential
damages (including, without limitation, attorney's fees or litigation costs)
connected with, or resulting from, performance or non-performance of this
Agreement, or any actions undertaken in connection with or related to this
Agreement, including, without limitation, any such damages which are based upon
causes of action for breach of contract, tort (including negligence and
misrepresentation), breach of warranty or strict liability. The provisions of
this Section 21 shall apply regardless of fault and shall survive termination,
cancellation, suspension, completion or expiration of this Agreement.
21.2 NYSEG will exercise good faith in its attempts to communicate
scheduling information between the NYPP and the Owners as described in Section
14. NYSEG shall not,
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absent its gross negligence or intentional misconduct, be liable to any Owner or
any other party for any damages whatsoever associated with communicating
scheduling information, including without limitation damages that result,
directly or indirectly, from (a) NYSEG's failure to timely communicate
scheduling information to the NYPP or (b) NYPP's failure to act upon or accept
scheduling information communicated by NYSEG. For the purpose of this Section,
scheduling information shall mean any information required to satisfy a
Transaction Schedule including, without limitation, the information required in
Appendices A, B, and C.
SECTION 22 - NOTICES
22.1 On or prior to its respective Transfer Date, each Owner shall
indicate to NYSEG, and NYSEG shall indicate to each Owner, by notice, the
appropriate person and their telephone numbers during each eight-hour work shift
to contact in the event of an Emergency, a scheduled or forced interruption, or
reduction in services. The notice last received by a Party shall be effective
until modified in writing by the other Party.
22.2 Except as otherwise provided herein, all notices, requests,
claims, demands, invoices, and other communications hereunder shall be in
writing and shall be given (and except as otherwise expressly provided herein,
will be deemed to have been duly given if so given) by hand delivery, cable,
telecopy (confirmed in writing) or telex, or by mail (registered or certified,
postage prepaid) to the respective Parties as follows:
New York State Electric & Gas Corporation
Corporate Drive
Kirkwood Industrial Park
Binghamton, New York 13902-5225
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
Energy Operating Services
AES Eastern Energy, L.P. and
AES Creative Resources, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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EME Homer City Generation L.P.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Director of Bulk Power Operations
or such other address as is furnished in writing by such Party; and any such
notice or communication shall be deemed to have been given as of the date so
mailed.
SECTION 23 - HEADINGS
The descriptive headings of the Sections of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 24 - WAIVER
Except as otherwise provided in this Agreement, any failure of a Party to comply
with any obligation, responsibility, covenant, agreement or condition herein may
be waived by the Party entitled to the benefit thereof only by a written
instrument signed by such Party granting such waiver, but such waiver shall not
operate as a waiver of, or estoppel with respect to, any subsequent failure of
the first Party to comply with such obligation, responsibility, covenant,
agreement or condition.
SECTION 25 - COUNTERPARTS
This Agreement may be executed in two or more counterparts, all of which will be
considered one and the same Agreement, and each of which shall be deemed an
original.
SECTION 26 - GOVERNING LAW
26.1 Laws and Regulations.
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This Agreement and all rights, obligations, and performances of the Parties
hereunder, are subject to all applicable Federal and state laws, and to all
duly-promulgated orders and other duly-authorized action of governmental
authorities having jurisdiction.
26.2 When not in conflict with or preempted by Federal law, this
Agreement will be governed by and construed in accordance with the law of the
State of New York, without giving effect to the conflict of law principles
thereof. Except for those matters covered in this Agreement that are
jurisdictional to the FERC or the appellate courts having jurisdiction over FERC
matters, any action arising out of or concerning this Agreement must be brought
in the Federal or state courts of the State of New York. The Parties hereby
consent to the exclusive jurisdiction of the State of New York for the purpose
of hearing and determining any action not preempted by Federal law or not within
the jurisdiction of the FERC.
SECTION 27 - SEVERABILITY
If any of the provisions of this Agreement are held to be unenforceable or
invalid by any court or regulatory authority of competent jurisdiction, the
Parties shall, to the extent reasonably possible, negotiate an equitable
adjustment to the provisions of this Agreement with a view toward effecting the
purpose of this Agreement, and the validity and enforceability of the remaining
provisions hereof shall not be affected by such holding.
SECTION 28 - AMENDMENT
28.1 The rates, terms, and conditions contained in this Agreement are
not subject to change under Sections 205 or 206 of the Federal Power Act, as
either section may be amended or superseded, absent the mutual written agreement
of all Parties. This Section 28, to the maximum extent permitted by law,
prohibits any change to the rates, terms, and conditions in this Agreement,
regardless of whether such change is sought (a) by the FERC acting sua sponte on
behalf of a Party or third party, (b) by a Party, (c) by a third party, or (d)
in any other manner.
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28.2 This Agreement may be amended, modified or supplemented only by
written agreement of all Parties.
SECTION 29 - ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties, and
supersedes any and all previous understandings, oral or written, which pertain
to the subject matter contained herein or therein except for the provisions of
the Interconnection Agreements, respectively. AES and EME agree and acknowledge
that this Agreement is consistent with the provisions of Sections 4.2.1.5 and
4.2.1.6, respectively, of the Interconnection Agreements, and that the
settlement methodology embodied in this Agreement satisfies the criterion set
forth in subsection (2) of each such Section 4.2.1.5 and 4.2.1.6.
SECTION 30 - NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to confer on
any person, other than the Parties, any rights or remedies under or by reason of
this Agreement.
SECTION 31 - FURTHER ASSURANCES
The Parties hereto agree to execute and deliver promptly, at the expense of the
Party requesting such action, any and all other and further information,
instruments, and documents that may be reasonably requested in order to
effectuate the transactions contemplated hereby, including but not limited to,
such instruments or documents to establish, if necessary, an alternative
arrangement, for access to services under this Agreement.
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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to
execute this Agreement as of the date first written above.
New York State Electric & Gas Corporation
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Date:
AES Eastern Energy, L.P.
by its General Partner, AES NY, L.L.C.
----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
President AES NY, L.L.C.
Date:
AES Creative Resources, L.P.
by its General Partner, AES NY, L.L.C.
----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
President AES NY, L.L.C.
Date:
EME Homer City Generation L.P.
by its general partner, Mission Energy Westside, Inc.
----------------------------------
▇▇▇ ▇. ▇▇▇▇▇
Vice President - Mission Energy Westside, Inc.
Date:
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APPENDIX A - DAILY SCHEDULING INFORMATION
Content Format Frequency Method Restrictions
Transaction and Loss To be provided Daily for next Email
Schedule by NYSEG business day
Unit Loading To be provided Daily for next Email The sum of the Unit Load Schedules
Schedule by NYSEG business day must equal the total TS.
NERC Transaction Tag To be provided Daily for next Email/Fax
by NYSEG business day
Operating Capacity To be provided Daily for next Email The sum of the Unit Operating
Schedule by NYSEG business day Capacity schedules must equal the
total TS Operating Capacity.
Unit Inadvertent To be provided Daily for next Email
Payback by NYSEG business day
Schedule
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APPENDIX B - NYPP DATA REQUIREMENTS FOR EACH UNIT
Content Format Frequency Method
Generator EDC-Hi Limit MW value Note 1 Phone
Generator EDC-Low Limit MW value Note 1 Phone
Generator Operational High Limit MW value As required Phone
Generator Operational Low Limit MW value Monthly Email
Generator On/Off Line On/Off As required RTU to ECS
Generator On/Off Dispatch On/Off As required Phone
Generator Available/ Available/ Unavailable As required Phone
Unavailable
Fuel Status The status of the As required Phone, Fax or Email
Generator Fuel Cost
being used (1, 2 or 3)
Generator On/Off Control On/Off As required Phone
Generator Fuel Cost $/MMBTU As required Phone, Fax or Email
Operation Factor Monthly Phone, Fax or Email
10 Minute Reserve Curve MW value Monthly Phone, Fax or Email
Operating Reserve Curve MW value Monthly Phone, Fax or Email
Incremental Heat Rate Curve MMBTU/MWh Monthly Phone, Fax or Email
Generator Unit Response Rate On MW/minute As required Phone
Dispatch
Generator Response Rate Reserve MW/minute Monthly Phone, Fax or Email
Pick-up
Generator Unit Minimum Fuel MMBTU/h Monthly Phone, Fax or Email
NOTE 1 = INITIALLY AND WHENEVER CHANGED
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APPENDIX C - INFORMATION PROVIDED TO OWNER(S)
Content Format Frequency Method Restrictions
Unit Inadvertent To be provided by Daily for each of Email
NYSEG previous day
NYPP Energy Transaction and To be provided by Daily Electronically or
Billing NYSEG by fax
NYPP Supplemental Capacity To be provided by Monthly Electronically or
Purchases NYSEG by fax
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