AMENDMENT Xx. 0
Xx Xxx
XXXXXXX XXX XXXXXXXX XXX XXXX XXXX 0
PURCHASE AND PARTICIPATION AGREEMENT
Between
Public Service Company of New Mexico
and
The Incorporated County of Los Alamos, New Mexico
1.0 PARTIES
This Amendment No. 1 to the Amended and Restated San Xxxx Unit 4
Purchase and Participation Agreement ("Amendment No. 1") is made and entered
into this 27th day of October 1999, by and between PUBLIC SERVICE COMPANY OF NEW
MEXICO, a New Mexico corporation ("PNM") and THE INCORPORATED COUNTY OF LOS
ALAMOS, NEW MEXICO, a body politic and corporate, existing as a political
subdivision under the constitution and laws of the State of New Mexico (the
"County"), hereinafter sometimes referred to individually as a "Party" or
collectively as the "Parties."
2.0 RECITALS
This Amendment No. 1 is made with reference to the following facts,
among others:
2.1 The Restated and Amended San Xxxx Unit 4 Purchase and Participation
Agreement (the "Restated PPA") was entered into by the Parties as of December
28, 1984. The Restated PPA governs the purchase by the County of a 7.20 percent
undivided ownership interest in San Xxxx Unit 4 and associated common
facilities, supplies and inventories and the operation thereof by PNM as
Operating Agent of the San Xxxx Project.
2.2 PNM and Tucson Electric Power Company ("TEP") only are parties to
the San Xxxx Project Co-Tenancy Agreement (the "Co-Tenancy Agreement") and the
San Xxxx Project Operating Agreement (the "Operating Agreement").
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2.3 The Co-Tenancy Agreement and the Operating Agreement have been
previously amended by action of PNM and TEP, through and including Amendments
Number 10 to the Co-Tenancy Agreement and the Operating Agreement.
2.4 The San Xxxx Project Construction Agreement was terminated in 1995
by action of PNM and TEP.
2.5 PNM, TEP, Century Power Company, Southern California Public Power
Authority ("SCPPA"), the City of Farmington, New Mexico ("Farmington"), M-S-R
Public Power Agency ("M-S-R"), the County and the City of Anaheim, California
("Anaheim") entered into the San Xxxx Project Designated Representative
Agreement ("DR Agreement") as of April 29, 1994, for the purpose of complying
with the federal Clean Air Act Amendments of 1990; the DR Agreement was
thereafter accepted by Utah Associated Municipal Power Systems ("UAMPS") and
Tri-State Generation and Transmission Association, Inc. ("Tri-State") at the
time of their respective purchases of ownership interests in the San Xxxx
Project.
2.6 The owners of the San Xxxx Project, including PNM and the County,
have negotiated a San Xxxx Project Participation Agreement among PNM, TEP,
Farmington, M-S-R, the County, SCPPA, Anaheim, UAMPS and Tri-State (the
"Participation Agreement") to amend, restate and replace in their entirety the
Co-Tenancy Agreement and the Operating Agreement and to set out in one
instrument all of the matters previously included in the Co-Tenancy Agreement
and the Operating Agreement.
2.7 The Participation Agreement will, upon its effective date, provide
the County with all the rights, privileges and obligations of a "Participant,"
as that term is defined in the Participation Agreement, and is intended to
supersede the rights, privileges and obligations of the County as a "Unit
Participant," as that term is defined in the Operating Agreement.
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2.8 The Parties desire to amend the Restated PPA to harmonize the
Restated PPA with the Participation Agreement.
NOW, THEREFORE, based on the foregoing recitals and in consideration of
the mutual promises, terms and covenants of this Amendment No. 1, the Parties
hereby agree as follows:
3.0 TERM AND TERMINATION
3.1 This Amendment No. 1 shall become effective as of the date on which
the Participation Agreement becomes effective.
3.2 Section 1.2 of the Restated PPA is amended to read in its entirety
as follows:
This Agreement shall continue in full force and effect
from its Effective Date until the termination date of
the San Xxxx Project Participation Agreement, dated as
of _____________, 1999 (the "Participation Agreement").
4.0 CHANGES IN REFERENCES TO CO-TENANCY AGREEMENT
AND OPERATING AGREEMENT
4.1 Section 5 of the Restated PPA is hereby amended to read in its
entirety as follows:
5.1 Participation Agreement. Except as otherwise provided in
this Agreement, the rights and obligations of the Parties with
respect to the San Xxxx Project are as set forth in the
Participation Agreement. Any reference in this Agreement to any
provision of the San Xxxx Project Agreements shall be deemed to
be a reference to the corresponding or successor provision of the
Participation Agreement.
5.2 PNM-County Relationship. The relationship between PNM and
the County with respect to Unit 4 shall be governed by this
Agreement. As between PNM and the County, where a specific
provision of this Agreement is in conflict with a provision in
one or more of the San Xxxx Project Agreements, the provisions of
this Agreement shall govern.
4.2 Except as otherwise provided herein, the Participation Agreement
shall be applicable to all aspects of the County's ownership interest in San
Xxxx Unit 4.
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5.0 PNM AS PROJECT MANAGER
5.1 Section 6 of the Restated PPA is hereby deleted in its entirety.
6.0 PNM AS OPERATING AGENT
6.1 Section 7 of the Restated PPA is hereby amended to read in its
entirety as follows:
7.1 The County recognizes that PNM is the Operating Agent, as
that term is defined in Section 5.31 of the Participation
Agreement.
7.2 PNM's responsibilities as Operating Agent to the County
are described in Section 28 of the Participation Agreement.
7.0 APPLICABILITY OF CERTAIN PROVISIONS OF CO-TENANCY AGREEMENT
7.1 Section 8 of the Restated PPA is hereby deleted in its entirety.
8.0 ENTITLEMENT TO AND SCHEDULING OF POWER AND ENERGY
8.1 Section 9 of the Restated PPA is hereby deleted in its entirety.
9.0 START-UP AND AUXILIARY POWER
9.1 Section 10.2 of the Restated PPA is hereby amended to read as
follows:
10.2 Each Party shall be obligated to provide its share of
start-up and auxiliary power and energy in proportion to its
Participation Share in San Xxxx Unit 4 as provided in Section 17
of the Participation Agreement. Any supplementary arrangements
which may be required to facilitate the County's supply of
start-up and auxiliary power and energy shall be made in
accordance with procedures established by the Engineering and
Operating Committee.
10.0 CAPITAL BETTERMENTS, ADDITIONS AND REPLACEMENTS
10.1 Section 11 of the Restated PPA is hereby deleted in its entirety.
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11.0 PNM'S RIGHT OF FIRST REFUSAL
11.1 Section 12 of the Restated PPA is hereby amended to read in its
entirety as follows:
12.1 PNM shall have a right of first refusal with respect to
the sale or disposition of the Transfer Interest or portion
thereof. Such right of first refusal shall exist as of Closing
and shall continue for the term of this Agreement. Such right
shall be exercised in accordance with the terms and conditions
and the procedures set out in Section 11 of the Participation
Agreement.
12.0 DEFAULTS
12.1 All references to "the prime lending rate established and last
published or quoted by Irving Trust Company" in Sections 15.3 and 15.4 of the
Restated PPA are replaced by "ten percent (10%) per annum."
12.2 Sections 15.5 and 15.6 of the Restated PPA are hereby deleted in
their entirety.
13.0 DISPUTES; ARBITRATION
13.1 Section 16 of the Restated PPA is hereby amended to read in its
entirety as follows:
16.1 In the event that a dispute between the Parties should
arise under this Agreement, such dispute shall be first submitted
to the PNM and County members on the Engineering and Operating
Committee for resolution. In the event these members are unable
to resolve such dispute within ninety (90) days after submission,
the dispute shall be referred in writing to the President or a
Vice President designated by PNM and the Chairman, Board of
Public Utilities, of the County, or his or her designee. If such
dispute has not been resolved within thirty (30) days after the
referral made by either Party (unless such thirty (30) day period
is extended by mutual agreement of the Parties), either Party may
thereafter call for submission of such dispute to arbitration in
the manner set forth in Section 37 of the Participation
Agreement, which call shall be binding upon the Parties, except
that the notices required under Section 37.1 of the Participation
Agreement shall only be provided to the Parties to this Agreement
unless the dispute between the Parties to this Agreement affects
the interests of other parties to the Participation Agreement.
14.0 RELATIONSHIP OF PARTIES
14.1 Sections 19.2 and 19.4 of the Restated PPA are hereby deleted in
their entirety.
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15.0 SUCCESSORS AND ASSIGNS
15.1 Section 25.2 of the Restated PPA is hereby deleted in its
entirety.
16.0 NOTICES
16.1 Section 26.1.2 of the Restated PPA is amended to read in its
entirety as follows:
26.1.2 Incorporated County of Los Alamos, New Mexico
c/o Utilities Manager
P.O. Drawer 1030
000 Xxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
17.0 DESTRUCTION, DAMAGE OR CONDEMNATION OF SAN XXXX UNIT 4
17.1 Section 35 of the Restated PPA is hereby deleted in its entirety.
18.0 CONTINUATION IN EFFECT
18.1 Except as herein modified, all provisions of the Restated PPA are
unchanged and continue in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be
executed by their duly authorized representatives as of the date set forth
above.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President, Power Production
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XXX XXXXXXXXXXXX XXXXXX XX
XXX XXXXXX, XXX XXXXXX
By:
--------------------------------------
Chairman, County Council
Attest:
---------------------------
County Clerk
By:
--------------------------------------
Chairman, Board of Public Utilities
73310
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