Contract #400522
EXHIBIT 10.37
SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
This agreement, made and entered into this 29 day of Nov, 1994, by and
between TEXAS EASTERN TRANSMISSION CORPORATION, a Delaware Corporation (herein
called "Pipeline") and BOSTON GAS COMPANY (herein called "Customer," whether one
or more),
W I T N E S S E T H:
WHEREAS, there currently exists between Pipeline and Customer three service
agreements under Rate Schedule FSS-1 (Pipeline's Contract Nos. 400503, 400520
and 400521) which specify an MDWQ of 2,932 dth and an MSQ of 175,920 dth, an
MDWQ of 36 dth and an MSQ of 2,160 dth, and an MDWQ of 209 dth and an MSQ of
12,540 dth respectively; and
WHEREAS, Pipeline and Customer desire to enter into one service agreement
under Rate Schedule FSS-1 which shall supersede the three referenced above; and
WHEREAS, withdrawal rights under the new Rate Schedule FSS-1 service
agreement are consistent with the existing rights of the three existing Rate
Schedule FSS-1 service agreements it supersedes;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties do covenant and agree as
follows:
ARTICLE I
SCOPE OF AGREEMENT
Subject to the terms, conditions and limitations hereof and of Pipeline's
Rate Schedule FSS-1, Pipeline agrees to provide firm service for Customer under
Rate Schedule FSS-1 and to receive and store for Customer's account quantities
of natural gas up to the following quantity:
Maximum Daily Injection Quantity (MDIQ) 979 dth
Maximum Storage Quantity (MSQ) 190,620 dth
Pipeline agrees to withdraw from storage for Customer, at Customer's
request, quantities of gas up to Customer's Maximum Daily Withdrawal Quantity
(MDWQ) of 3,177 dekatherms, or such lesser quantity as determined pursuant to
Rate Schedule FSS-1, from Customer's Storage Inventory, plus Applicable
Shrinkage. Pipeline's obligation to withdraw gas on any day is governed by the
provisions of Rate Schedule FSS-1, including but not limited to Section 6.
SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
(Continued)
ARTICLE II
TERM OF AGREEMENT
The term of this Service Agreement shall commence on December 1, 1994 and
shall continue in force and effect until April 30, 2012 and year to year
thereafter unless this Service Agreement is terminated as hereinafter provided.
This Service Agreement may be terminated by either Pipeline or Customer upon
five (5) years prior written notice to the other specifying a termination date
of any year occurring on or after the expiration of the primary term.
Subject to Pipeline rights under Section 22 of Pipeline's General Terms and
Conditions and without prejudice to such rights, this Service Agreement may be
terminated at any time by Pipeline in the event Customer fails to pay part or
all of the amount of any xxxx for service hereunder and such failure continues
for thirty (30) days after payment is due; provided, Pipeline gives thirty (30)
days prior written notice to Customer of such termination and provided further
such termination shall not be effective if, prior to the date of termination,
Customer either pays such outstanding xxxx or furnishes a good and sufficient
surety bond guaranteeing payment to Pipeline of such outstanding xxxx.
THE TERMINATION OF THIS SERVICE AGREEMENT WITH A FIXED CONTRACT TERM OR THE
PROVISION OF A TERMINATION NOTICE BY CUSTOMER TRIGGERS PREGRANTED ABANDONMENT
UNDER SECTION 7 OF THE NATURAL GAS ACT AS OF THE EFFECTIVE DATE OF THE
TERMINATION. PROVISION OF A TERMINATION NOTICE BY PIPELINE ALSO TRIGGERS
CUSTOMER'S RIGHT OF FIRST REFUSAL UNDER SECTION 3.13 OF THE GENERAL TERMS AND
CONDITIONS ON THE EFFECTIVE DATE OF THE TERMINATION.
In the event there is gas in storage for Customer's account on April 30 of
the year of termination of this Service Agreement, this Service Agreement shall
continue in force and effect for the sole purpose of withdrawal and delivery of
said gas to Customer for an additional one-hundred and twenty (120) days.
ARTICLE III
RATE SCHEDULE
This Service Agreement in all respects shall be and remain subject to the
applicable provisions of Rate Schedule FSS-1 and of the General Terms and
Conditions of Pipeline's FERC Gas Tariff on file with the Federal Energy
Regulatory Commission, all of which are by this reference made a part hereof.
Customer shall pay Pipeline, for all services rendered hereunder and for
the availability of such service in the period stated, the applicable prices
established under Pipeline's Rate Schedule FSS-1 as filed with the Federal
Energy Regulatory Commission and as the same may be hereafter revised or
changed.
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SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
(Continued)
Customer agrees that Pipeline shall have the unilateral right to file with
the appropriate regulatory authority and make changes effective in (a) the rates
and charges applicable to service pursuant to Pipeline's Rate Schedule FSS-1,
(b) Pipeline's Rate Schedule FSS-1, pursuant to which service hereunder is
rendered or (c) any provision of the General Terms and Conditions applicable to
Rate Schedule FSS-1. Notwithstanding the foregoing, Customer does not agree that
Pipeline shall have the unilateral right without the consent of Customer
subsequent to the execution of this Service Agreement and Pipeline shall not
have the right during the effectiveness of this Service Agreement to make any
filings pursuant to Section 4 of the Natural Gas Act to change the MDIQ, MSQ and
MDWQ specified in Article I, to change the term of the service agreement as
specified in Article II, to change Point(s) of Receipt specified in Article IV,
to change the Point(s) of Delivery specified in Article IV, or to change the
firm character of the service hereunder. Pipeline agrees that Customer may
protest or contest the aforementioned filings, and Customer does not waive any
rights it may have with respect to such filings.
ARTICLE IV
POINT(S) OF RECEIPT AND POINT(S) OF DELIVERY
The natural gas received by Pipeline for Customer's account for storage
injection pursuant to this Service Agreement shall be those quantities scheduled
for delivery pursuant to Service Agreements between Pipeline and Customer under
Rate Schedules CDS, FT-1, SCT, PTI or IT-1 which specify as a Point of Delivery
the "FSS-1 Storage Point". For purposes of billing of Usage Charges under Rate
Schedules CDS, FT-1, SCT, PTI or IT-1, deliveries under Rate Schedules CDS, FT-
1, SCT, PTI or IT-1 for injection into storage scheduled directly to the "FSS-1
Storage Point" shall be deemed to have been delivered 60% in Market Zone 2 and
40% in Market Zone 3. In addition, subject to Pipeline's prior written consent,
any positive variance between scheduled deliveries and actual deliveries on any
day (i.e. scheduled deliveries exceed actual deliveries) at Customer's Points of
Delivery under Rate Schedules CDS, FT-1, SCT, or IT-1 shall be deemed for
billing purposes delivered at the Point of Delivery and shall be injected into
storage for Customer's account. In addition to accepting gas for storage
injection at the FSS-1 Storage Point, Pipeline will accept gas tendered at
points of interconnection between Pipeline and third party facilities at Oakford
and Xxxxx Storage Fields provided that such receipt does not result in Customer
tendering aggregate quantities for storage in excess of the Customer MDIQ.
The natural gas delivered by Pipeline for Customer's account as a result of
storage withdrawal pursuant to this Service Agreement shall be those quantities
scheduled for withdrawal hereunder and subsequent transportation pursuant to
service agreements between Pipeline and Customer under Rate Schedule CDS, FT-1,
SCT, or IT-1 which specify as a Point of Receipt the "FSS-1
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SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
(Continued)
Storage Point". For purpose of billing under Rate Schedules CDS, FT-1, SCT, or
IT-1, withdrawals from storage for subsequent transportation under Rate
Schedules CDS, FT-1, SCT, or IT-1 shall be deemed to have been received 60% in
Market Zone 2 and 40% in Market Zone 3. In addition to the withdrawal of gas
from storage for delivery through a transportation service on Pipeline's system,
gas may be withdrawn for delivery into the facilities of third parties at the
points of interconnection between Pipeline and the facilities of such third
parties at Oakford and Xxxxx Storage Fields provided that such withdrawals do
not result in Customer withdrawing gas in excess of his MDWQ or MSQ. A separate
transportation charge will not be applicable to these deliveries.
ARTICLE V
QUALITY
All natural gas tendered to Pipeline for Customer's account shall conform
and be subject to the provisions of Section 5 of the General Terms and
Conditions. Customer agrees that in the event Customer tenders for service
hereunder and Pipeline agrees to accept natural gas which does not comply with
Pipeline's quality specifications, as expressly provided for in Section 5 of
Pipeline's General Terms and Conditions, Customer shall pay all costs associated
with processing of such gas as necessary to comply with such quality
specifications.
ARTICLE VI
ADDRESSES
Except as herein otherwise provided or as provided in the General Terms and
Conditions of Pipeline's FERC Gas Tariff, any notice, request, demand,
statement, xxxx or payment provided for in this Service Agreement, or any notice
which any party may desire to give to the other, shall be in writing and shall
be considered as duly delivered when mailed by registered, certified, or regular
mail to the post office address of the parties hereto, as the case may be, as
follows:
(a) Pipeline: TEXAS EASTERN TRANSMISSION CORPORATION
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
(b) Customer: BOSTON GAS COMPANY
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
or such other address as either party shall designate by formal written notice.
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SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
(Continued)
ARTICLE VII
ASSIGNMENTS
Any Company which shall succeed by purchase, merger, or consolidation to
the properties, substantially as an entirety, of Customer, or of Pipeline, as
the case may be, shall be entitled to the rights and shall be subject to the
obligations of its predecessor in title under this Service Agreement; and either
Customer or Pipeline may assign or pledge this Service Agreement under the
provisions of any mortgage, deed of trust, indenture, bank credit agreement,
assignment, receivable sale, or similar instrument which it has executed or may
execute hereafter; otherwise, neither Customer nor Pipeline shall assign this
Service Agreement or any of its rights hereunder unless it first shall have
obtained the consent thereto in writing of the other; provided further, however,
that neither Customer nor Pipeline shall be released from its obligations
hereunder without the consent of the other. In addition, Customer may assign its
rights to capacity pursuant to Section 3.14 of the General Terms and Conditions.
To the extent Customer so desires, when it releases capacity pursuant to Section
3.14 of the General Terms and Conditions, Customer may require privity between
Customer and the Replacement Customer, as further provided in the applicable
Capacity Release Umbrella Agreement.
ARTICLE VIII
INTERPRETATION
The interpretation and performance of this Service Agreement shall be in
accordance with the laws of the State of Texas without recourse to the law
governing conflict of laws.
This Service Agreement and the obligations of the parties are subject to
all present and future valid laws with respect to the subject matter, State and
Federal, and to all valid present and future orders, rules, and regulations of
duly constituted authorities having jurisdiction.
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SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
(Continued)
ARTICLE IX
CANCELLATION OF PRIOR CONTRACT(S)
This Service Agreement supersedes and cancels, as of the effective date of
this Service Agreement, the contract(s) between the parties hereto as described
below:
Service Agreements dated, November 8, 1994, October 21, 1994 and October
25, 1994 between Pipeline and Customer under Pipeline's Rate Schedule FSS-1
(Pipeline's Contract Nos. 400503, 400520 and 400521).
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SERVICE AGREEMENT
FOR RATE SCHEDULE FSS-1
(Continued)
IN WITNESS WHEREOF, the Parties hereto have caused this Service Agreement
to be signed by their respective Presidents, Vice Presidents, or other duly
authorized agents and their respective corporate seals to be hereto affixed and
attested by their respective Secretaries or Assistant Secretaries, the day and
year first above written.
TEXAS EASTERN TRANSMISSION CORPORATION
By /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Vice President
ATTEST:
/s/ Xxxxxx X. Xxxx
---------------------------
XXXXXX X. XXXX
CORPORATE SECRETARY
BOSTON GAS COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
ATTEST:
____________________________
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