Exhibit 10-B
(*) Confidential information has been omitted and filed separately with
the Commission pursuant to Rule 24b-2.
COAL SUPPLY AGREEMENT
by and between
OTTER TAIL POWER COMPANY, NORTHWESTERN PUBLIC SERVICE,
MONTANA-DAKOTA UTILITIES CO.
and
RAG Coal West, Inc.
THIS COAL SUPPLY AGREEMENT ("Agreement") is made and entered
into as of September 28, 2001, (the "Effective Date"), by and
between OTTER TAIL POWER COMPANY, A DIVISION OF OTTER TAIL
CORPORATION, NORTHWESTERN PUBLIC SERVICE , A DIVISION OF
NORTHWESTERN CORPORATION, MONTANA-DAKOTA UTILITIES CO., A DIVISION
OF MDU RESOURCES INC., hereinafter together called "Buyers or Buyer"
and RAG Coal West, Inc., hereinafter called "Seller."
WHEREAS:
A. Seller desires to sell coal from its Belle Ayr and Eagle
Butte mines located in Xxxxxxxx County, Wyoming ("the Mines"), under
the terms and conditions herein set forth; and
B. Buyers desire to secure an adequate supply of coal of the
quality and quantity as set forth in this Agreement; and
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements of the parties contained herein, Seller
agrees to sell and deliver to Buyers and Buyers agree to purchase,
receive and pay for coal from Seller upon the following terms and
conditions:
1. TERM
----
The term of this Agreement shall be for * commencing on *
and continue through and include * unless sooner terminated as
provided herein.
2. QUANTITY
--------
(a.) Volume of coal to be purchased and sold during the Term
Belle Ayr Eagle Butte**
--------- -----------
* *
**Seller shall have the unilateral right but not the
obligation to deliver all or a portion of the tons stated
above from the Belle Ayr Mine during the Term. Seller must
notify Buyer by * of its intent to make this change in
origin. If during the Term Seller desires to deliver
additional tons from the Belle Ayr Mine, (other than
those declared by *), such volume shall be transferred
from the Eagle Butte Mine to the Belle Ayr Mine only
by mutual agreement of the parties. If for reasons of
Force Majeure as stated in Paragraph 9., the Belle Ayr Mine
is unable to ship such tons, they shall be again originated
from the Eagle Butte Mine.
(b) Delivery Schedule: Deliveries from the Mines shall be
scheduled to occur in monthly quantities during each calendar year.
Buyer shall provide Seller with its written monthly schedule for
the calendar year *. In providing the monthly schedules to
Seller, Buyer shall use its best faith efforts to provide an
accurate estimate of its projected need for coal on a monthly
basis. Buyer shall use best efforts to keep monthly quantities
approximately equal except for scheduled overhaul and test
xxxxx. However, the parties agree that the monthly schedules are
for the convenience of the parties and in no way binding on the
Buyer and that no penalty of any kind shall accrue to Buyer if
for any reason the Buyer is (1) unable to take delivery of
the amount of monthly coal scheduled or (2) takes delivery of more
coal than scheduled in order to make-up for any previous months'
deficiencies. Except as provided in Section 2(c) below, any
variance in the amount of monthly coal scheduled and actually
delivered shall not relieve either Seller or Buyer from their
respective obligations to sell and purchase the minimum amounts of
coal set forth in Section 2(a).
(c) Reduction in Quantities Where, through fault of the Buyer,
Buyer fails to take delivery of the amount of coal scheduled for any
month because an appropriate amount of suitable and compatible unit
trains is not provided to Seller, the following shall apply: Seller
shall have the option at its discretion to reduce, in the affected
calendar year, the amount of coal that it is obligated to provide
under Section 2(a) in the amount that Buyer fails to take delivery.
Seller may reduce its supply obligation only by giving Buyer written
notice of its intent to do so within 10 days of the end of the
calendar quarter in which the failure to take delivery occurs. When
Seller provides such notice to Buyer, such notice shall also relieve
Buyer of any further obligation with regard to purchasing or taking
delivery of the coal previously not taken. Seller's option to reduce
its supply obligation as provided above does not apply when the
failure to provide an appropriate amount of suitable and compatible
unit trains is not through any fault of Buyer. Failure by the rail
car carrier to provide an appropriate amount of suitable and
compatible unit trains to Seller shall not be considered the fault
of the Buyer. Buyer agrees, however, to use its best efforts to
assure that the railcar carrier provides the appropriate amount of
suitable and compatible unit trains to the Seller.
(d) Additional or Lesser Quantities Buyer and Seller may agree
to increase or decrease the Annual Quantity as nominated by Buyer in
Section 2(a) throughout the Term by designating any such increase or
decrease in a written instrument signed by duly authorized
representatives of the parties. Such increase or decrease shall
become effective only through written mutual agreement of the
parties.
(e) Additional Cost to Buyer through Fault of Seller Where Seller
fails, through no fault of the Buyer railcar carrier or event
covered by Section 9, to load Buyer's rail cars with coal on a
timely basis that causes coal to be delivered to Buyer on an
untimely basis or not at all, and where, as a result, Buyer
incurs additional costs in a commercially prudent and
verifiable manner, either because Buyer must use coal in its
outside storage stockpile, secure coal from other sources, or
otherwise, Seller shall be responsible to Buyer for these
prudent and verifiable additional costs. Seller shall have the
right of first refusal to replenish Buyer's outside storage
stockpile.
3. SOURCE
------
(a.) The source of coal to be sold pursuant to this Agreement shall
be mined and supplied from the Mines. Seller represents and warrants
that the Mines have coal of a quality and in quantities that are
sufficient to satisfy the requirements of this Agreement. Seller
further warrants that the title to all coal delivered under this
Agreement shall be good and that such coal shall be free from any
claim, lien or other encumbrance.
(b.) From time to time, Seller shall have the right but not the
obligation to deliver coal from another mine on an identical cents
per million delivered basis. Seller must first gain Buyer's written
permission.
4. COAL QUALITY
------------
Coal supplied hereunder will be substantially free from impurities
and foreign matter such as, but not limited to, dirt, bone, slate,
earth, rock, pyrite, wood, tramp metal and mine debris prior to
leaving the Mine. Coal will be raw, run-of-mine, crushed to 2" x
0". Seller represents that typical values of BTUs, moisture, ash,
sulfur, and the values for other quality characteristics are as set
forth in Exhibit A to this Agreement. The coal to be delivered shall
meet the following specifications on a quarterly, ton-weighted
average as received basis of not less than six (6) trainload lots:
"As Received" Belle Ayr Eagle Butte
------------- --------- -----------
Heating Value, BTU/lb. min * *
Total Ash, % max.
#SO2/mmBtu max.
Total Moisture, % max.
Seller shall provide Buyer with the analyses of each unit-train
loading by facsimile prior to unloading of coal at the Plant. Buyer
shall have the right but not the obligation to reject any
trainload of coal that is over the maximums or under the minimums
of the above specifications by more than * BTU, * % Ash, * #SO2/mmBtu
and * % Moisture, by giving notice to Seller within two business days
of receiving the analyses from Seller. In the event Buyer rejects
such non-conforming coal, title to and risk of loss of the coal
shall be considered to have never passed to Buyer and Buyer may, at
its sole option, stop the affected shipment in route, prevent the
unloading of the affected shipment, return the coal to Seller or
mutually agree with Seller upon a disposition for such coal
shipment, all at Seller's cost and risk.
5. PRICING
-------
The price of coal supplied hereunder shall be based on the following
schedule. Prices shall be per ton F.O.B. Buyer's railcars at the
Mines (the "Base Price"). The Base Price includes all Governmental
Impositions as of May 1, 2001.
YEAR Belle Ayr Mine Eagle Butte Mine
---- -------------- ----------------
* * *
(a.) Base Price: The Base Price may be adjusted only in accordance
with paragraph b and c of this Section.
(b.) Governmental Impositions and Taxes: Seller represents that the
Mine is in compliance with all governmental laws, rules and
regulations in effect as of May 1, 2001 and that the cost of such
compliance, including Mine closure and all reclamation costs, is
included in the Base Price set forth in Section 5(a). If the
imposition or repeal of any law, regulation or ruling (including
changes in interpretations or administration of existing laws,
regulations or rulings, or change in tax rates is adopted or becomes
effective on or after May 1, 2001 (hereinafter called "Governmental
Imposition") and the imposition, repeal, or change in tax rate was
not known as of the effective date, Seller shall demonstrate to
Buyer, to Buyer's satisfaction, that such Governmental Imposition
has increased or decreased the cost of owning or operating the Mine
as it relates to the production of coal from the Mine for sale to
Buyer under this Agreement. Upon agreement of the parties, the
then effective Base Price shall be adjusted by adding or subtracting
the per ton cost of the Governmental Imposition to determine an
adjusted Base Price. If the Government Imposition will continue for
the life of this Agreement, then the Base Price, to be included in
an extension of the term of this Agreement, if any, shall also be
adjusted by the per ton amount of the Governmental Imposition.
Seller shall submit to Buyer in writing, an analysis identifying the
Governmental Imposition causing the cost impact and the extent of
such cost impact on ownership or operation of the Mine or on the
production of coal purchased hereunder and showing the calculation
of the amount of change in the Base Price. The effective date of
any price increase or decrease pursuant to this Section 5(b) shall
be the effective date of the Governmental Imposition causing the
cost increase or decrease but, in no event prior to the date of
actual commencement of expenditure or accrual thereof by Seller.
(c.) Adjustment for Calorific Value: The Base Price is calculated
on the assumption of an average monthly calorific coal value of *
BTUs per pound from the Belle Ayr Mine and * Btu per pound from the
Eagle Butte Mine (the "Specified Average"); provided, however,
the parties recognize that the calorific value of coal actually
delivered hereunder may vary from such Specified Average. If the
weighted average calorific value of the coal furnished in any month
deviates from the Specified Average, then an adjustment will be made
to the Base Price of coal according to the following equation:
A = (B/C) X (D)
Where:
A - Adjusted Price rounded to the nearest mil ($.001)
B - Weighted average (BTUs per pound) calorific value of
coal delivered during the month from each Mine
C - Applicable Specified Average (BTUs per pound) calorific
value of coal.
D - Applicable Base Price from the Mine.
6. BILLING AND PAYMENT
-------------------
(a.) On or before the fifth (5th) and twentieth (20th) working day
of each month, Seller shall render to Buyer at its Plant address
provided in Section 14 a semi-monthly invoice which shall indicate
the actual tonnage and ton-weighted average calorific value of coal
shipped during the previous billing period and the Adjusted Price
which takes calorific value into account as defined in Section 5(c)
and changes resulting from the changes in Governmental Impositions,
if any.
(b.) Buyer shall electronically pay such invoice within ten (10)
working days after receipt thereof. Unless advised in writing to
send all payments to another address, payment shall be sent by
electronic means to:
LaSalle Bank, N. A.
Chicago, Illinois
ABA No. 000-000-000
Account No. 5800248527
Account Name: RAG Coal West, Inc.
(c.) If Buyer defaults on any payment, Buyer shall pay simple
interest thereon at the rate, not to exceed applicable State of
Minnesota and Federal laws, that shall be equal to two percent (2%)
over the base rate of interest charged by Citibank of New York or
any successor bank on new ninety-day loans to responsible and
substantial commercial borrowers on the date the interest charge
begins. Such interest shall run from the date the payment was due
until it is paid.
(d.) If any invoice is in dispute, Buyer nevertheless shall pay the
undisputed amount, and if Buyer or Seller is due any payment or
credit pursuant to the resolution of the dispute, the simple
interest on the payment or credit shall be paid by the party owing
such payment or credit at the rate, not to exceed applicable State
of Minnesota and Federal laws, that shall be equal to two percent
(2%) over the base rate of interest charged by Citibank of New York
or any successor bank on new ninety-day loans to responsible and
substantial commercial borrowers on the date of Buyer's payment or
credit from Seller of the disputed invoice and shall run until the
date payment or credit is made following resolution of the dispute.
(e.) Should Buyer fail to pay Seller for any amount due and owing
in accordance with this Section 6 within thirty (30) days after its
receipt of Seller's written demand for payment, then Seller shall
also have the right, but not the obligation, to suspend deliveries
under this Agreement by so notifying Buyer in writing. Should Buyer
fail to pay Seller for any amount due and owing in accordance with
this Section 6 within ninety (90) days after its receipt of Seller's
written demand for payment, then Seller shall have the right, but
not the obligation to terminate this Agreement by so notifying Buyer
in writing.
(f.) Such suspension or termination shall become effective as of
the date written notice is received by Buyer. Neither Party shall
accrue any additional rights against the other as a result of a
suspension or termination permitted in this Section 6. Seller shall
lose the right provided in this Section 6 to suspend or terminate if
it has not sent written notice of such suspension or termination
prior to Buyer's payment of the amount due and owing. Seller's
failure to exercise its right to suspend or terminate as provided in
this Section 6 shall not be deemed a waiver of its right to suspend
or terminate for any subsequent default by Buyer to perform as
provided in this Section 6.
7. SAMPLING AND ANALYSIS
---------------------
(a.) Seller shall cause, at its expense, to be taken a
representative sample of each unit train shipment of coal at the
point of loading, to be sampled and analyzed in accordance with
methods set forth in applicable American Society for Testing and
Materials ("ASTM") standards. All samples shall be divided into at
least four (4) parts and put in suitable airtight containers. One
part shall be furnished to Buyer or its designee for its
disposition, one part shall be retained for analysis by Seller, and
two parts shall be retained by Seller or its designee in one of the
aforesaid containers properly sealed and labeled for a period forty-
five (45) days after the date of sample collection for use as a
referee should a dispute arise and the other for a back-up for any
unforeseeable qualitative issues. All parts are to be clearly
labeled as to Mine, date of sampling, date of preparation, and other
identification as to shipment (such as train identification number)
and are to be sent within forty-eight (48) hours of train loading,
or prior to arrival of train at destination, whichever comes first,
to Buyer at the address provided in Section 14 hereof. Upon Buyer's
written request and at Buyer's cost, Seller shall send the 4th part
to Buyer's designated laboratory for mercury and chlorine content
analysis.
(b.) Seller shall perform at Seller's cost a "short proximate"
analysis (for moisture, ash, sulfur, and calorific value) for each
trainload sample and will forward such analysis to Buyer by a
mutually agreed upon method of electronic communication. The
results of such analysis shall be determinative of the quality of
the unit train of coal represented by such sample unless a dispute
arises due to a difference between Buyer's and Seller's analysis
whereby such difference exceeds ASTM tolerances,
(c.) If a dispute arises between Buyer and Seller concerning a
trainload sample due to a difference outside ASTM tolerances, within
forty-five (45) days of the date on which the subject trainload was
loaded, an analysis of the third part shall be made by an
independent commercial testing laboratory, mutually chosen by Buyer
and Seller, in accordance with methods set forth in applicable ASTM
standards. The results of such independent laboratory analysis
shall be determinative for purposes of contract compliance and
invoicing. Buyer and Seller shall share the cost of such analysis
equally.
(d.) The results of the sampling and analysis performed by Seller
shall govern for purposes of determining any adjustments to the Base
Price of coal set forth in Section 5(c) for variations in calorific
value, except in the event a dispute arises under Section 7(c), in
which event Section 7(c) shall control.
(e.) Buyer shall have the right, at its own cost, risk and expense,
to have a representative present at any and all times to observe the
sampling and analysis, in a manner that does not interfere with
Seller's operation of its Mine.
8. WEIGHING AND LOADING
--------------------
(a.) Point of Delivery: Coal shall be delivered F.O.B. Buyer's
railcars at Seller's railroad loadout facility at the Mines. Upon
completion of the loading of each railcar, title and risk of loss
for all coal loaded therein shall pass to Buyer. Buyer shall
arrange for the provision of suitable and compatible unit trains of
open-top railcars for the transportation of coal purchased by Buyer
under this Agreement.
(b.) Loading Facilities and Procedure: Seller shall operate its
loading facilities twenty-four (24) hours per day, 365 days per
year. Seller shall load each unit train at Seller's expense as
closely as practicable to its capacity. Seller shall complete the
loading of each unit train within four (4) hours after the first
empty railcar is placed into position for loading. Unless excused by
Force Majeure as provided below, Seller shall pay Buyer for any
increased transportation charges incurred as a result of Seller's
failure to comply with the freetime, overloading and underloading
set forth in the excerpts from Buyer's transportation agreement
provisions as set forth in Exhibit C.
(c.) Weighing: The weight of coal sold and delivered under this
Agreement shall be determined on a per shipment basis by certified
commercial scales at Seller's train loading facility at the Mine.
The weights thus determined shall be accepted as the quantity of
coal for which invoices are to be rendered and payments made in
accordance with Section 6. Seller shall furnish the railroad
company transporting the coal with copies of the weights determined
under this Agreement. Coal supplied under this Agreement shall be
weighed at Seller's expense. Seller's scales used to determine such
weight shall be tested, calibrated and certified in accordance with
intervals of approximately every six (6) months by a qualified
testing agency. Seller shall use its best efforts to give Buyer no
less than ten (10) days notice of the anticipated time of scale
test. Buyer shall also have the right, at Buyer's expense and upon
reasonable notice, to have the scales checked for accuracy at any
reasonable time or frequency. If the scales are found to be over or
under the tolerance range allowable for the scale based on ASTM
standards, either party shall pay to the other any amounts owed due
to such inaccuracy for a period not to exceed thirty (30) days
before the time any inaccuracy of scales is determined.
Buyer shall have the right, at its own cost, risk and expense, to
have a representative present at any and all times to observe the
weighings or scale test, in a manner that does not interfere with
Seller's operation of its Mine.
(d.) Data Transmission: Seller shall provide to Buyer within two
business days of completion of loading each train, a train loading
manifest for each train by a mutually agreed upon method of
electronic transmission.
9. FORCE MAJEURE
-------------
(a.) Definition: For purposes of this Agreement, the term "Force
Majeure" is defined as any cause beyond the reasonable control and
without the intentional fault or willful negligence of the party
affected thereby which is the proximate cause of a party's whole or
partial inability to perform its obligations under this Agreement.
For purposes of this Agreement, Force Majeure includes, without
limitation, Acts of God, unusual accumulations of snow or ice,
floods, frozen coal, interruptions of transportation, interruptions
or breakdowns of the power facilities connecting with Buyer or
Seller's facilities, embargoes, acts of civil authority (including
State and Federal agencies and courts of competent jurisdiction),
acts of military authority, war, insurrections, riots, strikes,
lockouts, work stoppages, labor or material shortages, or
explosions, fires, adverse geological conditions, or unanticipated
or non-routine mechanical breakdowns (including but not limited to
shutdowns for emergency maintenance or the like which may be
necessary to mitigate or eliminate the imminent threat of
explosions, fires, or mechanical breakdowns) at the Mine or at
Buyer's Plant . Force Majeure also includes other causes of a
similar nature that wholly or partially prevent the mining, hauling,
processing, or loading of coal by Seller or the receiving,
transporting, storing, unloading or utilizing of coal by Buyer.
(b.) Effect of Force Majeure: If, because of an event of Force
Majeure, either Seller or Buyer is unable to carry out any of its
obligations under this Agreement, except obligations to pay money to
the other party due to coal already sold, and if such party shall
promptly give to the other party written notice of such event of
Force Majeure, then the obligations under this Agreement of the
party giving such notice shall be suspended to the extent made
necessary by such event of Force Majeure and will continue
throughout the continuance of such event; provided, however, that
the party giving such notice shall use good faith efforts to
eliminate such event of Force Majeure or its effect insofar as
possible with a minimum of delay. Nothing herein contained shall
cause the party invoking Force Majeure to submit to what it
considers to be unreasonable conditions or restrictions, to make an
unreasonable expenditure of money or to submit to a labor Agreement
it deems unfavorable, and it is agreed that any settlement of labor
strikes or difference with workmen shall be entirely within the sole
discretion of the affected party. Deficiencies in receiving coal
caused by a Force Majeure event shall be made up only upon mutual
consent between Buyer and Seller.
10. TITLE
-----
Title, right of possession and risks of loss of the coal shall pass
from Seller to Buyer upon loading into Buyer's owned or controlled
railcar. Seller agrees to load railcars in accordance with industry
standards or reasonable rail carrier's instructions as attached
hereto.
11. TERMINATION AND CANCELLATION
----------------------------
Either party to this Agreement may cancel this Agreement upon
written notice to the other party of such party's failure to comply
with any of the material provisions or obligations in this
Agreement, provided that notice of such failure has been given and
not less than thirty (30) days have elapsed with no curative action
having commenced. Seller and Buyer may terminate this Agreement
immediately upon written notice to the other in the event the other
becomes insolvent or files for protection under any applicable
bankruptcy laws. Buyer shall remain obligated to pay for all coal
delivered by Seller and accepted by Buyer prior to the date of
termination or cancellation.
12. INDEMNITY AND LIABILITY
-----------------------
Each party hereby agrees to indemnify, save and hold harmless the
other, from and against all liability from damage to property or
injury or death of any person or persons arising out of or resulting
from the willful or negligent acts or omissions of such party, its
agents and employees; provided however, that when employees or
agents of either party hereto enter upon the premises of the other
party, such entry shall be at the sole risk of the party who is the
employer of such employee or agent, and such employer shall hold
harmless the other party from all claims by its employees or agent,
unless such injury or death or damage to property is a result of
gross negligence of the other party.
13. LAWS AND REGULATIONS
--------------------
The Seller and Buyer shall comply with all applicable federal, state
and local laws, ordinances, statutes, codes, rules, and regulations
in the performance of its obligations under this Agreement.
14. NOTICES
-------
All notices required hereunder will be in writing and will be deemed
properly given when sent by telecopy, to the addresses as provided
below, or to such other addresses as Buyer or Seller may hereafter
specify for such purpose, provided that all notices will be
confirmed immediately by commercial delivery service, e.g., Federal
Express or U.P.S. or registered certified mail.
Buyer's address is: Seller's address is;
------------------ -------------------
Big Stone Plant 00 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
c/o Otter Tail Power Company Xxxxxxxxx, Xxxxxxxx 00000-0000
X.X. Xxx 000 Attn: Vice President Western Sales
Big Xxxxx Xxxx, XX 00000 Fax: 303/000-0000
Attn: Fuel Supervisor
Fax (000) 000-0000
With a courtesy notice to: With a courtesy notice to:
------------------------- -------------------------
Otter Tail Power Company RAG Coal West, Inc.
000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxxxx, Xxxxxxx 00000
Attn: Production Services Attention: President
Fax: (000) 000-0000
15. CONFIDENTIALITY
---------------
Except as hereinafter provided, the terms and conditions set forth
in this Agreement, and all information supplied to the other party
pursuant to this Agreement, are considered by both Buyer and Seller
to be confidential, and neither party shall disclose any such
information to any third party without the advance written consent
of the other party, which consent shall not be unreasonably
withheld, except where such disclosure may be required by law or in
connection with the assertion of a claim or defense in judicial or
administrative proceedings involving the parties hereto, in which
event the party required to make such disclosure shall advise the
other in advance in writing and shall cooperate to the extent
practicable to minimize the disclosure of any such information.
16. WARRANTIES
----------
THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE SOLE
WARRANTIES GIVEN BY EITHER PARTY TO THE OTHER IN CONNECTION WITH THE
SALE AND PURCHASE OF COAL PROVIDED HEREIN. THE PARTIES HEREBY
EXPRESSLY WAIVE AND DISCLAIM ANY STATUTORY OR IMPLIED WARRANTIES
THAT MAY BE APPLICABLE TO THE SUBJECT MATTER OF THIS AGREEMENT
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
17. DISPUTE RESOLUTION
------------------
(a.) No party to this Agreement shall be entitled to take legal
action with respect to any dispute arising from or relating to the
Agreement until it has complied, in good faith, with the procedures
set forth in paragraph b and c below.
(b.) Negotiation
-----------
(1) The parties shall attempt promptly and in good faith to
resolve any dispute arising out of or relating to this
Agreement through negotiations between representatives who have
the authority to settle the controversy. All negotiations
pursuant to this clause shall be confidential and treated as
compromise and settlement negotiations for the purpose of the
federal and state rules of evidence.
(2) Either party may give the other written notice of any
dispute not resolved in the normal course of business. As soon
as mutually agreeable after delivery of this notice,
representatives of the parties shall meet at a mutually
acceptable time and place (or by telephone), and thereafter as
often as they reasonably may deem necessary to attempt to
resolve the dispute. Unless the parties to the dispute agree
that the dispute cannot be resolved through unassisted
negotiation, negotiations shall not be deemed at an impasse
until 60 days after the written notice of the dispute.
(3) If a negotiator intends to be accompanied at a meeting by
any attorney, the other negotiator(s) shall be given at least
three working days' notice of such intention and may also be
accompanied by an attorney.
(c.) Alternative dispute resolution procedure
----------------------------------------
(1) If a dispute has reached impasse, either party may suggest
use of alternative dispute resolution ("ADR") procedures. Once
that party has notified the other of desire to initiate ADR,
the parties may select the ADR method they may wish to use by
mutual agreement. That ADR method may include arbitration,
mediation, mini-trial, or any other method that best suits the
circumstances of the dispute. The parties shall agree in
writing to an ADR method selected and to the procedural rules
to be followed as promptly as possible. To the extent the
parties are unable to agree on a procedural rules in whole or
in part, the current center for public resources ("CPR") model
procedure for mediation of business disputes, CPR model mini-
trial procedure, or CPR commercial arbitration rules-"whichever
applies to the chosen ADR method-"shall control, to the extent
such rules are consistent with the provisions of this section.
(2) If the parties are unable to agree on an ADR method or
unwilling to use ADR to resolve the dispute, either party shall
be free to resort to litigation.
(3) If the parties agree on an ADR method other than
arbitration, the decision rendered in that proceeding shall not
be binding on any party except by agreement of the parties, and
either party may seek resolution of the dispute through
litigation. If the parties agree on arbitration as an ADR
method, the decision of the arbitrator(s) shall be binding on
all parties, pursuant to the United States Arbitration Act 9
USCA Sec. 1 et seq. The arbitrator(s) shall not award punitive
or exemplary damages against either party.
18. MISCELLANEOUS
-------------
(a.) Governing Law. This Agreement shall be subject to and governed
by the laws of the State of Minnesota.
(b.) Binding Effect. This Agreement shall inure to the benefit of
and be binding on the parties hereto, their successors and assigns.
(c.) Assignment. Neither party hereto may assign this Agreement or
any rights or obligations hereunder, in whole or in part, without
the prior written consent of the other party, which consent shall
not be unreasonable withheld or denied. However, consent shall not
be required for merger, consolidation or sale of all or
substantially all of the assets of a party.
(d.) Severability. If any provision of this Agreement is found to
be contrary to law or unenforceable by a court of competent
jurisdiction, the remaining provisions shall be severable and
enforceable in accordance with their terms, unless such unlawful or
unenforceable provision is material to the transactions contemplated
hereby, in which case the parties shall negotiate in good faith a
substitute provision.
(e.) Amendments. Except as otherwise provided herein, this
Agreement may not be amended, supplemented or otherwise modified
except by written instrument signed by duly authorized
representatives of the parties hereto.
(f.) Headings. The descriptive headings contained in this Agreement
are for convenience only and do not constitute a part of this
Agreement.
(g.) Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties hereto with respect to the
subject matter hereof and there are no representations,
understandings or agreements, oral or written, expressed or implied,
that are not included herein.
(h.) Survival. At the time of termination of this Agreement or any
cancellation hereof, the appropriate provisions hereof shall survive
as necessary to complete any payment or credit provided for
hereunder with respect to coal sold and delivered prior to the date
of such termination or cancellation.
(i.) Each Party Responsible for Actions. It is the intent of this
Section 18 that each party be responsible for its own acts and
omissions.
WITNESS the signatures of the parties hereto this 17th day of
October, 2001
OTTER TAIL POWER COMPANY NORTHWESTERN PUBLIC SERVICE,
a Division of Otter Tail Corporation a Division of NorthWestern Corporation
By: /s/Xxxx Xxxxxxx By: /s/Xxxx Xxxx
------------------------------ -------------------------------
Title: VP, COO Energy Supply Title: VP Energy Operations
--------------------------- ----------------------------
MONTANA-DAKOTA UTILITIES CO., RAG Coal West, Inc
a Division of MDU Resources Inc.
By: /s/Xxxxx Xxxxxxx By: /s/Xxxxx X. Deal
------------------------------ ------------------------------
Title: Vice President Energy Supply Title: V.P. Sales
---------------------------- --------------------------
EXHIBIT A
---------
Mine: *
Seam: *
Date: *
PROXIMATE ANALYSIS AVERAGE STD. DEV. RANGE
As Received * * *
Moisture
Ash
Volatile
Fixed Carbon
Sulfur
Btu
MAF Btu
SULFUR FORMS
Pyritic
Organic
Sulfate
WATER SOLUBLE ALKALIS
Water Soluble Na2O
Water Soluble K2O
FUSION
Reducing
Initial Deformation
H=W
H=1/2W
Fluid
Oxidizing
Initial Deformation
H=W
H=1/2W
Fluid
ULTIMATE ANALYSIS
Carbon
Hydrogen
Nitrogen
Chlorine
Sulfur
Ash
Oxygen
Moisture
EXHIBIT A
---------
Mine: *
Seam: *
Date: *
PROXIMATE ANALYSIS AVERAGE STD. DEV. RANGE
As Received * * *
Moisture
Ash
Volatile
Fixed Carbon
Sulfur
Btu
MAF Btu
SULFUR FORMS
Pyritic
Organic
Sulfate
WATER SOLUBLE ALKALIS
Water Soluble Na2O
Water Soluble K2O
FUSION
Reducing
Initial Deformation
H=W
H=1/2W
Fluid
Oxidizing
Initial Deformation
H=W
H=1/2W
Fluid
ULTIMATE ANALYSIS
Carbon
Hydrogen
Nitrogen
Chlorine
Sulfur
Ash
Oxygen
Moisture
EXHIBIT B
---------
Belle Ayr Mine
Mining Taxes Component
As Of May 1, 2001
INPUT VARIABLE
AMOUNT NAME DESCRIPTION
------ ---- -----------
* * *
PRICE
COMPONENT DESCRIPTION FORMULAS
--------- ----------- --------
* * *
EXHIBIT B
---------
Eagle Butte Mine
Mining Taxes Component
As Of May 1, 2001
INPUT VARIABLE
AMOUNT NAME DESCRIPTION
------ ---- -----------
* * *
PRICE
COMPONENT DESCRIPTION FORMULAS
--------- ----------- --------
* * *
EXHIBIT C - TRANSPORTATION AGREEMENT EXCERPTS
SECTION 9. WEIGHING
9(A) Weighing.
The parties agree that the weight of the Coal in the Coal Cars will
be determined at Origins by UTILITIES' Origin Mine operator. BN
shall not be responsible for such weight determinations. The weights
ascertained by said operators pursuant to Section 11(J) shall be used
for the assessment of the freight charges thereunder. Weighing shall
be performed on scales inspected semi-annually at no cost to BN, in
accordance with the then-current AAR Scale Handbook specifications
for such scales, and subject to supervision and verification by BN
or its agent.
9(B) Breakdown Of Scales.
If weights cannot be determined due to a breakdown of the scales at
Origins, the weight per Train to be used for the assessment of
freight charges thereunder shall be determined by averaging the per
car weights on the ten (10) immediately preceding weighed shipments
from the same Origin to Destination, adjusted to any variance in the
number of cars per shipment.
9(C) Gross Load Limit and Overloads.
If a loaded Coal Car is found by BN to weigh in excess 270,000
pounds, BN shall, if necessary, switch said overloaded Coal Car and
remove it from the Train. BN retains the right to refuse to accept
or transport overloaded Car(s). BN is not be obligated to reduce the
lading of such Car(s), which obligation is solely UTILITIES' under
this Agreement. After UTILITIES, at no expense to BN, cause any
excess Coal to be removed from the overloaded Coal Car, BN shall
replace the Coal Car into the Train. For such services in removing
and replacing each such Coal Car, UTILITIES shall pay a charge to BN
of $372.00 per Coal Car. If the excess Coal is removed during the
Free Time at Origin without removing the Coal Car from a Train, there
shall be no charge to UTILITIES. BN reserves the right to increase
the maximum gross weight on rail above 270,000 pounds. UTILITIES are
not obligated to ship in excess of 270,000 pounds.
SECTION 10. LOADING AND UNLOADING
10(A) Advance Notice and Loading.
(1) BN will make Trains of empty Coal Cars available at Origins for
loading. BN shall furnish the Origin Mine Operator not less than four
(4) hours advance notice by radio, telex, telephone or other reasonable
means of the arrival of such Trains of Coal Cars at Origin for loading.
(2) UTILITIES and/or its Mine Operator shall be responsible for the
loading of Coal Cars. The parties agree to cooperate with the Mine
Operator to provide for the efficient loading of the Coal Cars at an
Origin. BN shall provide Locomotives and Train crews to move Trains
through the Loading Facility at a controlled speed as designated by
UTILITIES Mine Operator; PROVIDED, HOWEVER, that BN will not be required
to move Cars at a speed less than five/tenths (.5) mile per hour, but
to the extent it is able to operate at a lesser speed, will upon
request use its best efforts to do so.
CONFIDENTIAL CONTRACT ICC-BN-C-2913
10(B) Placement and Free Time - Origin.
(1) Four (4) hours free time will be allowed to load all empty Coal Cars
in a Train, commencing after the Actual or Constructive Placement of the
Train at the designated notification point at the Origin ready for
loading ("Loading Free Time"); PROVIDED, HOWEVER, that Loading Free Time
shall be extended for a period of time equivalent to that by which
loading was prevented as a result of (i) a Loading Disability, or
(ii) any occurrence attributable to BN which prevents loading. If BN
fails to provide four (4) hours advance notice of arrival at Origin,
a Train's Loading Free Time shall be extended by the additional amount
of time (but not to exceed four (4) hours) that it takes to load a Train
due to BN's failure to provide the required notice. If a Train is not
loaded and released during the applicable Loading Free Time, BN may
collect from UTILITIES an Origin Detention Charge of $308.00 per hour
(including any fraction of an hour) until such time as the Train is
loaded and released.
(2) For purposes of this Section 10, "Actual Placement" is made when a
Unit Train arrives at Origin Mine's designated notification point (as
described in the BN timetable and the Train crew has requested loading
instructions. In the event a Train cannot be Actually Placed at an
Origin, notice shall be given immediately to Origin Mine Operator by
radio, telex, telephone or other reasonable means, and BN may place the
Train at an available hold point until such time as Origin Mine Operator
notifies BN that Actual Placement can be made, whereupon it shall
be moved to Origin.
(3) For purposes of this Section 10, "Constructive Placement" begins
when a Train is placed at an available hold point because it is
prevented from being Actually Placed; PROVIDED, HOWEVER, that
Constructive Placement shall not take place when Actual Placement is
prevented (i) due to any cause that would extend Loading Free Time, or
(ii) because the Loading Free Time for another Train ahead of the Train
in question has not expired ("Origin Bunching"). The time required for
the movement of a Constructively Placed Train from a hold point to an
Origin will not be included in the computation of Free Time.
(4) "Loading Disability" means any of the following events which
directly result in the inability to load Coal into a Train at an Origin:
(i) an Act of God; (ii) a strike or other labor disturbance; (iii) a riot
or other civil disturbance; (iv) rain, snow and/or ice accumulation
sufficient to immobilize Train or Mine operations or prevent loading of
such Train; (v) an act of regulation of local, state or federal
government authorities; or (vi) mechanical or electrical breakdown,
explosion or fire (including shutdown for emergency maintenance or the
like which may be necessary to mitigate or eliminate the imminent threat
of explosion, fire or mechanical or electrical breakdown), or accident
affecting a Loading Facility at the Origin then being utilized by
UTILITIES or affecting BN's locomotives or other railroad equipment.
UTILITIES or UTILITIES' Mine Operator shall notify BN by telephone,
telegraph, or radio or other reasonable means (i) within one and one-half
(1.5) hours of the commencement of a Loading Disability as to the nature
and time of commencement of the Loading Disability, and (ii) within
one and one-half (1.5) hours after the termination of a Loading
Disability as to the time of termination of the Loading Disability,
except that the notifications in (i) and (ii) above shall not be
necessary if the Loading Disability lasts for a period of one and
one-half (1.5) hours or less.
Exhibit 10-B (Continued)
(*) Confidential information has been omitted and filed separately with
the Commission pursuant to Rule 24b-2.
COAL SUPPLY AGREEMENT
by and between
OTTER TAIL POWER COMPANY, NORTHWESTERN PUBLIC SERVICE,
MONTANA-DAKOTA UTILITIES CO.
and
RAG Coal West, Inc.
THIS COAL SUPPLY AGREEMENT ("Agreement") is made and entered
into as of September 28, 2001 (the "Effective Date"), by and
between OTTER TAIL POWER COMPANY, A DIVISION OF OTTER TAIL
CORPORATION, NORTHWESTERN PUBLIC SERVICE , A DIVISION OF
NORTHWESTERN CORPORATION, MONTANA-DAKOTA UTILITIES CO., A
DIVISION OF MDU RESOURCES INC., hereinafter together called
"Buyers or Buyer" and RAG Coal West, Inc., hereinafter called
"Seller."
WHEREAS:
A. Seller desires to sell coal from its Belle Ayr and Eagle
Butte mines located in Xxxxxxxx County, Wyoming ("the Mines"),
under the terms and conditions herein set forth; and
B. Buyers desire to secure an adequate supply of coal of
the quality and quantity as set forth in this Agreement; and
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements of the parties contained herein, Seller
agrees to sell and deliver to Buyers and Buyers agree to
purchase, receive and pay for coal from Seller upon the following
terms and conditions:
1. TERM
----
The term of this Agreement shall be for one * commencing on *
and continue through and include * unless sooner terminated as
provided herein.
2. QUANTITY
--------
(a.) Volume of coal to be purchased and sold during the Term
Belle Ayr Eagle Butte**
--------- -----------
* *
**Seller shall have the unilateral right but not the
obligation to deliver all or a portion of the tons stated
above from the Belle Ayr Mine during the Term. Seller must
notify Buyer by * of its intent to make this change in
origin. If during the Term Seller desires to deliver
additional tons from the Belle Ayr Mine, (other than
those declared by *), such volume shall be transferred
from the Eagle Butte Mine to the Belle Ayr Mine only
by mutual agreement of the parties. If for reasons of
Force Majeure as stated in Paragraph 9., the Belle Ayr Mine
is unable to ship such tons, they shall be again originated
from the Eagle Butte Mine.
(b) Delivery Schedule: Deliveries from the Mines shall be
scheduled to occur in monthly quantities during each calendar year.
Buyer shall provide Seller with its written monthly schedule for
the calendar year *. In providing the monthly schedules to
Seller, Buyer shall use its best faith efforts to provide an
accurate estimate of its projected need for coal on a monthly
basis. Buyer shall use best efforts to keep monthly quantities
approximately equal except for scheduled overhaul and test
xxxxx. However, the parties agree that the monthly schedules are
for the convenience of the parties and in no way binding on the
Buyer and that no penalty of any kind shall accrue to Buyer if
for any reason the Buyer is (1) unable to take delivery of
the amount of monthly coal scheduled or (2) takes delivery of more
coal than scheduled in order to make-up for any previous months'
deficiencies. Except as provided in Section 2(c) below, any
variance in the amount of monthly coal scheduled and actually
delivered shall not relieve either Seller or Buyer from their
respective obligations to sell and purchase the minimum amounts
of coal set forth in Section 2(a).
(c) Reduction in Quantities Where, through fault of the Buyer,
Buyer fails to take delivery of the amount of coal scheduled for
any month because an appropriate amount of suitable and
compatible unit trains is not provided to Seller, the following
shall apply: Seller shall have the option at its discretion to
reduce, in the affected calendar year, the amount of coal that it
is obligated to provide under Section 2(a) in the amount that
Buyer fails to take delivery. Seller may reduce its supply
obligation only by giving Buyer written notice of its intent to
do so within 10 days of the end of the calendar quarter in which
the failure to take delivery occurs. When Seller provides such
notice to Buyer, such notice shall also relieve Buyer of any
further obligation with regard to purchasing or taking delivery
of the coal previously not taken. Seller's option to reduce its
supply obligation as provided above does not apply when the
failure to provide an appropriate amount of suitable and
compatible unit trains is not through any fault of Buyer.
Failure by the rail car carrier to provide an appropriate amount
of suitable and compatible unit trains to Seller shall not be
considered the fault of the Buyer. Buyer agrees, however, to use
its best efforts to assure that the railcar carrier provides the
appropriate amount of suitable and compatible unit trains to the
Seller.
(d) Additional or Lesser Quantities Buyer and Seller may agree
to increase or decrease the Annual Quantity as nominated by Buyer
in Section 2(a) throughout the Term by designating any such
increase or decrease in a written instrument signed by duly
authorized representatives of the parties. Such increase or
decrease shall become effective only through written mutual
agreement of the parties.
(e) Additional Cost to Buyer through Fault of Seller Where
Seller fails, through no fault of the Buyer railcar carrier
or event covered by Section 9, to load Buyer's rail cars
with coal on a timely basis that causes coal to be
delivered to Buyer on an untimely basis or not at all, and
where, as a result, Buyer incurs additional costs in a
commercially prudent and verifiable manner, either because
Buyer must use coal in its outside storage stockpile, secure
coal from other sources, or otherwise, Seller shall be
responsible to Buyer for these prudent and verifiable
additional costs. Seller shall have the right of first
refusal to replenish Buyer's outside storage stockpile.
3. SOURCE
------
(a.) The source of coal to be sold pursuant to this Agreement
shall be mined and supplied from the Mines. Seller represents and
warrants that the Mines have coal of a quality and in quantities
that are sufficient to satisfy the requirements of this
Agreement. Seller further warrants that the title to all coal
delivered under this Agreement shall be good and that such coal
shall be free from any claim, lien or other encumbrance.
(b.) From time to time, Seller shall have the right but not the
obligation to deliver coal from another mine on an identical
cents per million delivered basis. Seller must first gain
Buyer's written permission.
4. COAL QUALITY
------------
Coal supplied hereunder will be substantially free from
impurities and foreign matter such as, but not limited to, dirt,
bone, slate, earth, rock, pyrite, wood, tramp metal and mine
debris prior to leaving the Mine. Coal will be raw, run-of-mine,
crushed to 2" x 0". Seller represents that typical values of
BTUs, moisture, ash, sulfur, and the values for other quality
characteristics are as set forth in Exhibit A to this Agreement.
The coal to be delivered shall meet the following specifications
on a quarterly, ton-weighted average as received basis of not
less than six (6) trainload lots:
"As Received" Belle Ayr Eagle Butte
----------- --------- -----------
Heating Value, BTU/lb. min. * *
Total Ash, % max.
#SO2/mmBtu max.
Total Moisture, % max.
Seller shall provide Buyer with the analyses of each unit-train
loading by facsimile prior to unloading of coal at the Plant.
Buyer shall have the right but not the obligation to reject any
trainload of coal that is over the maximums or under the minimums
of the above specifications by more than * BTU, * % Ash, * #SO2/mmBtu
and * % Moisture, by giving notice to Seller within two business days
of receiving the analyses from Seller. In the event Buyer rejects
such non-conforming coal, title to and risk of loss of the coal
shall be considered to have never passed to Buyer and Buyer may, at
its sole option, stop the affected shipment in route, prevent the
unloading of the affected shipment, return the coal to Seller or
mutually agree with Seller upon a disposition for such coal
shipment, all at Seller's cost and risk.
5. PRICING
-------
The price of coal supplied hereunder shall be based on the
following schedule. Prices shall be per ton F.O.B. Buyer's
railcars at the Mines (the "Base Price"). The Base Price
includes all Governmental Impositions as of May 1, 2001.
YEAR Belle Ayr Mine Eagle Butte Mine
---- -------------- ----------------
* * *
(a.) Base Price: The Base Price may be adjusted only in
accordance with paragraph b and c of this Section.
(b.) Governmental Impositions and Taxes: Seller represents that
the Mine is in compliance with all governmental laws, rules and
regulations in effect as of May 1, 2001 and that the cost of such
compliance, including Mine closure and all reclamation costs, is
included in the Base Price set forth in Section 5(a). If the
imposition or repeal of any law, regulation or ruling (including
changes in interpretations or administration of existing laws,
regulations or rulings, or change in tax rates is adopted or
becomes effective on or after May 1, 2001 (hereinafter called
"Governmental Imposition") and the imposition, repeal, or change
in tax rate was not known as of the effective date, Seller shall
demonstrate to Buyer, to Buyer's satisfaction, that such
Governmental Imposition has increased or decreased the cost of
owning or operating the Mine as it relates to the production of
coal from the Mine for sale to Buyer under this Agreement. Upon
agreement of the parties, the then effective Base Price shall be
adjusted by adding or subtracting the per ton cost of the
Governmental Imposition to determine an adjusted Base Price. If
the Government Imposition will continue for the life of this
Agreement, then the Base Price, to be included in an extension of
the term of this Agreement, if any, shall also be adjusted by the
per ton amount of the Governmental Imposition.
Seller shall submit to Buyer in writing, an analysis identifying
the Governmental Imposition causing the cost impact and the
extent of such cost impact on ownership or operation of the Mine
or on the production of coal purchased hereunder and showing the
calculation of the amount of change in the Base Price. The
effective date of any price increase or decrease pursuant to this
Section 5(b) shall be the effective date of the Governmental
Imposition causing the cost increase or decrease but, in no event
prior to the date of actual commencement of expenditure or
accrual thereof by Seller.
(c.) Adjustment for Calorific Value: The Base Price is calculated
on the assumption of an average monthly calorific coal value of *
BTUs per pound from the Belle Ayr Mine and * Btu per pound from the
Eagle Butte Mine (the "Specified Average"); provided, however,
the parties recognize that the calorific value of coal actually
delivered hereunder may vary from such Specified Average. If the
weighted average calorific value of the coal furnished in any month
deviates from the Specified Average, then an adjustment will be made
to the Base Price of coal according to the following equation:
A = (B/C) X (D)
Where:
A - Adjusted Price rounded to the nearest mil ($.001)
B - Weighted average (BTUs per pound) calorific value
of coal delivered during the month from each Mine
C - Applicable Specified Average (BTUs per pound)
calorific value of coal.
D - Applicable Base Price from the Mine.
6. BILLING AND PAYMENT
-------------------
(a.) On or before the fifth (5th) and twentieth (20th) working
day of each month, Seller shall render to Buyer at its Plant
address provided in Section 14 a semi-monthly invoice which shall
indicate the actual tonnage and ton-weighted average calorific
value of coal shipped during the previous billing period and the
Adjusted Price which takes calorific value into account as
defined in Section 5(c) and changes resulting from the changes in
Governmental Impositions, if any.
(b.) Buyer shall electronically pay such invoice within ten (10)
working days after receipt thereof. Unless advised in writing to
send all payments to another address, payment shall be sent by
electronic means to:
LaSalle Bank, N. A.
Chicago, Illinois
ABA No. 000-000-000
Account No. 5800248527
Account Name: RAG Coal West, Inc.
(c.) If Buyer defaults on any payment, Buyer shall pay simple
interest thereon at the rate, not to exceed applicable State of
Minnesota and Federal laws, that shall be equal to two percent
(2%) over the base rate of interest charged by Citibank of New
York or any successor bank on new ninety-day loans to responsible
and substantial commercial borrowers on the date the interest
charge begins. Such interest shall run from the date the payment
was due until it is paid.
(d.) If any invoice is in dispute, Buyer nevertheless shall pay
the undisputed amount, and if Buyer or Seller is due any payment
or credit pursuant to the resolution of the dispute, the simple
interest on the payment or credit shall be paid by the party
owing such payment or credit at the rate, not to exceed
applicable State of Minnesota and Federal laws, that shall be
equal to two percent (2%) over the base rate of interest charged
by Citibank of New York or any successor bank on new ninety-day
loans to responsible and substantial commercial borrowers on the
date of Buyer's payment or credit from Seller of the disputed
invoice and shall run until the date payment or credit is made
following resolution of the dispute.
(e.) Should Buyer fail to pay Seller for any amount due and
owing in accordance with this Section 6 within thirty (30) days
after its receipt of Seller's written demand for payment, then
Seller shall also have the right, but not the obligation, to
suspend deliveries under this Agreement by so notifying Buyer in
writing. Should Buyer fail to pay Seller for any amount due and
owing in accordance with this Section 6 within ninety (90) days
after its receipt of Seller's written demand for payment, then
Seller shall have the right, but not the obligation to terminate
this Agreement by so notifying Buyer in writing.
(f.) Such suspension or termination shall become effective as of
the date written notice is received by Buyer. Neither Party
shall accrue any additional rights against the other as a result
of a suspension or termination permitted in this Section 6.
Seller shall lose the right provided in this Section 6 to suspend
or terminate if it has not sent written notice of such suspension
or termination prior to Buyer's payment of the amount due and
owing. Seller's failure to exercise its right to suspend or
terminate as provided in this Section 6 shall not be deemed a
waiver of its right to suspend or terminate for any subsequent
default by Buyer to perform as provided in this Section 6.
7. SAMPLING AND ANALYSIS
---------------------
(a.) Seller shall cause, at its expense, to be taken a
representative sample of each unit train shipment of coal at the
point of loading, to be sampled and analyzed in accordance with
methods set forth in applicable American Society for Testing and
Materials ("ASTM") standards. All samples shall be divided into
at least four (4) parts and put in suitable airtight containers.
One part shall be furnished to Buyer or its designee for its
disposition, one part shall be retained for analysis by Seller,
and two parts shall be retained by Seller or its designee in one
of the aforesaid containers properly sealed and labeled for a
period forty-five (45) days after the date of sample collection
for use as a referee should a dispute arise and the other for a
back-up for any unforeseeable qualitative issues. All parts are
to be clearly labeled as to Mine, date of sampling, date of
preparation, and other identification as to shipment (such as
train identification number) and are to be sent within forty-
eight (48) hours of train loading, or prior to arrival of train
at destination, whichever comes first, to Buyer at the address
provided in Section 14 hereof. Upon Buyer's written request and
at Buyer's cost, Seller shall send the 4th part to Buyer's
designated laboratory for mercury and chlorine content analysis.
(b.) Seller shall perform at Seller's cost a "short proximate"
analysis (for moisture, ash, sulfur, and calorific value) for
each trainload sample and will forward such analysis to Buyer by
a mutually agreed upon method of electronic communication. The
results of such analysis shall be determinative of the quality of
the unit train of coal represented by such sample unless a
dispute arises due to a difference between Buyer's and Seller's
analysis whereby such difference exceeds ASTM tolerances,
(c.) If a dispute arises between Buyer and Seller concerning
a trainload sample due to a difference outside ASTM tolerances,
within forty-five (45) days of the date on which the subject
trainload was loaded, an analysis of the third part shall be made
by an independent commercial testing laboratory, mutually chosen
by Buyer and Seller, in accordance with methods set forth in
applicable ASTM standards. The results of such independent
laboratory analysis shall be determinative for purposes of
contract compliance and invoicing. Buyer and Seller shall share
the cost of such analysis equally.
(d.) The results of the sampling and analysis performed by Seller
shall govern for purposes of determining any adjustments to the
Base Price of coal set forth in Section 5(c) for variations in
calorific value, except in the event a dispute arises under
Section 7(c), in which event Section 7(c) shall control.
(e.) Buyer shall have the right, at its own cost, risk and
expense, to have a representative present at any and all times to
observe the sampling and analysis, in a manner that does not
interfere with Seller's operation of its Mine.
8. WEIGHING AND LOADING
--------------------
(a.) Point of Delivery: Coal shall be delivered F.O.B. Buyer's
railcars at Seller's railroad loadout facility at the Mines.
Upon completion of the loading of each railcar, title and risk of
loss for all coal loaded therein shall pass to Buyer. Buyer
shall arrange for the provision of suitable and compatible unit
trains of open-top railcars for the transportation of coal
purchased by Buyer under this Agreement.
(b.) Loading Facilities and Procedure: Seller shall operate its
loading facilities twenty-four (24) hours per day, 365 days per
year. Seller shall load each unit train at Seller's expense as
closely as practicable to its capacity. Seller shall complete the
loading of each unit train within four (4) hours after the first
empty railcar is placed into position for loading. Unless excused
by Force Majeure as provided below, Seller shall pay Buyer for
any increased transportation charges incurred as a result of
Seller's failure to comply with the freetime, overloading and
underloading set forth in the excerpts from Buyer's
transportation agreement provisions as set forth in Exhibit C.
(c.) Weighing: The weight of coal sold and delivered under this
Agreement shall be determined on a per shipment basis by
certified commercial scales at Seller's train loading facility at
the Mine. The weights thus determined shall be accepted as the
quantity of coal for which invoices are to be rendered and
payments made in accordance with Section 6. Seller shall furnish
the railroad company transporting the coal with copies of the
weights determined under this Agreement. Coal supplied under
this Agreement shall be weighed at Seller's expense. Seller's
scales used to determine such weight shall be tested, calibrated
and certified in accordance with intervals of approximately every
six (6) months by a qualified testing agency. Seller shall use
its best efforts to give Buyer no less than ten (10) days notice
of the anticipated time of scale test. Buyer shall also have the
right, at Buyer's expense and upon reasonable notice, to have the
scales checked for accuracy at any reasonable time or frequency.
If the scales are found to be over or under the tolerance range
allowable for the scale based on ASTM standards, either party
shall pay to the other any amounts owed due to such inaccuracy
for a period not to exceed thirty (30) days before the time any
inaccuracy of scales is determined.
Buyer shall have the right, at its own cost, risk and expense, to
have a representative present at any and all times to observe the
weighings or scale test, in a manner that does not interfere with
Seller's operation of its Mine.
(d.) Data Transmission: Seller shall provide to Buyer within two
business days of completion of loading each train, a train
loading manifest for each train by a mutually agreed upon method
of electronic transmission.
9. FORCE MAJEURE
-------------
(a.) Definition: For purposes of this Agreement, the term "Force
Majeure" is defined as any cause beyond the reasonable control
and without the intentional fault or willful negligence of the
party affected thereby which is the proximate cause of a party's
whole or partial inability to perform its obligations under this
Agreement. For purposes of this Agreement, Force Majeure
includes, without limitation, Acts of God, unusual accumulations
of snow or ice, floods, frozen coal, interruptions of
transportation, interruptions or breakdowns of the power
facilities connecting with Buyer or Seller's facilities,
embargoes, acts of civil authority (including State and Federal
agencies and courts of competent jurisdiction), acts of military
authority, war, insurrections, riots, strikes, lockouts, work
stoppages, labor or material shortages, or explosions, fires,
adverse geological conditions, or unanticipated or non-routine
mechanical breakdowns (including but not limited to shutdowns for
emergency maintenance or the like which may be necessary to
mitigate or eliminate the imminent threat of explosions, fires,
or mechanical breakdowns) at the Mine or at Buyer's Plant .
Force Majeure also includes other causes of a similar nature that
wholly or partially prevent the mining, hauling, processing, or
loading of coal by Seller or the receiving, transporting,
storing, unloading or utilizing of coal by Buyer.
(b.) Effect of Force Majeure: If, because of an event of Force
Majeure, either Seller or Buyer is unable to carry out any of its
obligations under this Agreement, except obligations to pay money
to the other party due to coal already sold, and if such party
shall promptly give to the other party written notice of such
event of Force Majeure, then the obligations under this Agreement
of the party giving such notice shall be suspended to the extent
made necessary by such event of Force Majeure and will continue
throughout the continuance of such event; provided, however, that
the party giving such notice shall use good faith efforts to
eliminate such event of Force Majeure or its effect insofar as
possible with a minimum of delay. Nothing herein contained shall
cause the party invoking Force Majeure to submit to what it
considers to be unreasonable conditions or restrictions, to make
an unreasonable expenditure of money or to submit to a labor
Agreement it deems unfavorable, and it is agreed that any
settlement of labor strikes or difference with workmen shall be
entirely within the sole discretion of the affected party.
Deficiencies in receiving coal caused by a Force Majeure event
shall be made up only upon mutual consent between Buyer and
Seller.
10. TITLE
-----
Title, right of possession and risks of loss of the coal shall
pass from Seller to Buyer upon loading into Buyer's owned or
controlled railcar. Seller agrees to load railcars in accordance
with industry standards or reasonable rail carrier's instructions
as attached hereto.
11. TERMINATION AND CANCELLATION
----------------------------
Either party to this Agreement may cancel this Agreement upon
written notice to the other party of such party's failure to
comply with any of the material provisions or obligations in this
Agreement, provided that notice of such failure has been given
and not less than thirty (30) days have elapsed with no curative
action having commenced. Seller and Buyer may terminate this
Agreement immediately upon written notice to the other in the
event the other becomes insolvent or files for protection under
any applicable bankruptcy laws. Buyer shall remain obligated to
pay for all coal delivered by Seller and accepted by Buyer prior
to the date of termination or cancellation.
12. INDEMNITY AND LIABILITY
-----------------------
Each party hereby agrees to indemnify, save and hold harmless the
other, from and against all liability from damage to property or
injury or death of any person or persons arising out of or
resulting from the willful or negligent acts or omissions of such
party, its agents and employees; provided however, that when
employees or agents of either party hereto enter upon the
premises of the other party, such entry shall be at the sole risk
of the party who is the employer of such employee or agent, and
such employer shall hold harmless the other party from all claims
by its employees or agent, unless such injury or death or damage
to property is a result of gross negligence of the other party.
13. LAWS AND REGULATIONS
--------------------
The Seller and Buyer shall comply with all applicable federal,
state and local laws, ordinances, statutes, codes, rules, and
regulations in the performance of its obligations under this
Agreement.
14. NOTICES
-------
All notices required hereunder will be in writing and will be
deemed properly given when sent by telecopy, to the addresses as
provided below, or to such other addresses as Buyer or Seller may
hereafter specify for such purpose, provided that all notices
will be confirmed immediately by commercial delivery service,
e.g., Federal Express or U.P.S. or registered certified mail.
Buyer's address is: Seller's address is;
------------------ -------------------
Big Stone Plant 00 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
c/o Otter Tail Power Company Xxxxxxxxx, Xxxxxxxx 00000-0000
X.X. Xxx 000 Attn: Vice President Western Sales
Big Xxxxx Xxxx, XX 00000 Fax: 303/000-0000
Attn: Fuel Supervisor
Fax (000) 000-0000
With a courtesy notice to: With a courtesy notice to:
------------------------- -------------------------
Otter Tail Power Company RAG Coal West, Inc.
000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxxxx, Xxxxxxx 00000
Attn: Production Services Attention: President
Fax: (000) 000-0000
15. CONFIDENTIALITY
---------------
Except as hereinafter provided, the terms and conditions set
forth in this Agreement, and all information supplied to the
other party pursuant to this Agreement, are considered by both
Buyer and Seller to be confidential, and neither party shall
disclose any such information to any third party without the
advance written consent of the other party, which consent shall
not be unreasonably withheld, except where such disclosure may be
required by law or in connection with the assertion of a claim or
defense in judicial or administrative proceedings involving the
parties hereto, in which event the party required to make such
disclosure shall advise the other in advance in writing and shall
cooperate to the extent practicable to minimize the disclosure of
any such information.
16. WARRANTIES
----------
THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE SOLE
WARRANTIES GIVEN BY EITHER PARTY TO THE OTHER IN CONNECTION WITH
THE SALE AND PURCHASE OF COAL PROVIDED HEREIN. THE PARTIES
HEREBY EXPRESSLY WAIVE AND DISCLAIM ANY STATUTORY OR IMPLIED
WARRANTIES THAT MAY BE APPLICABLE TO THE SUBJECT MATTER OF THIS
AGREEMENT INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
17. DISPUTE RESOLUTION
------------------
(a.) No party to this Agreement shall be entitled to take legal
action with respect to any dispute arising from or relating to
the Agreement until it has complied, in good faith, with the
procedures set forth in paragraph b and c below.
(b.) Negotiation
(1) The parties shall attempt promptly and in good faith to
resolve any dispute arising out of or relating to this
Agreement through negotiations between representatives who
have the authority to settle the controversy. All
negotiations pursuant to this clause shall be confidential
and treated as compromise and settlement negotiations for
the purpose of the federal and state rules of evidence.
(2) Either party may give the other written notice of any
dispute not resolved in the normal course of business. As
soon as mutually agreeable after delivery of this notice,
representatives of the parties shall meet at a mutually
acceptable time and place (or by telephone), and thereafter
as often as they reasonably may deem necessary to attempt to
resolve the dispute. Unless the parties to the dispute
agree that the dispute cannot be resolved through unassisted
negotiation, negotiations shall not be deemed at an impasse
until 60 days after the written notice of the dispute.
(3) If a negotiator intends to be accompanied at a meeting
by any attorney, the other negotiator(s) shall be given at
least three working days' notice of such intention and may
also be accompanied by an attorney.
(c.) Alternative dispute resolution procedure
----------------------------------------
(1) If a dispute has reached impasse, either party may
suggest use of alternative dispute resolution ("ADR")
procedures. Once that party has notified the other of
desire to initiate ADR, the parties may select the ADR
method they may wish to use by mutual agreement. That ADR
method may include arbitration, mediation, mini-trial, or
any other method that best suits the circumstances of the
dispute. The parties shall agree in writing to an ADR
method selected and to the procedural rules to be followed
as promptly as possible. To the extent the parties are
unable to agree on a procedural rules in whole or in part,
the current center for public resources ("CPR") model
procedure for mediation of business disputes, CPR model
mini-trial procedure, or CPR commercial arbitration rules-
whichever applies to the chosen ADR method-shall control, to
the extent such rules are consistent with the provisions of
this section.
(2) If the parties are unable to agree on an ADR method or
unwilling to use ADR to resolve the dispute, either party
shall be free to resort to litigation.
(3) If the parties agree on an ADR method other than
arbitration, the decision rendered in that proceeding shall
not be binding on any party except by agreement of the
parties, and either party may seek resolution of the dispute
through litigation. If the parties agree on arbitration as
an ADR method, the decision of the arbitrator(s) shall be
binding on all parties, pursuant to the United States
Arbitration Act 9 USCA Sec. 1 et seq. The arbitrator(s)
shall not award punitive or exemplary damages against either
party.
18. MISCELLANEOUS
-------------
(a.) Governing Law. This Agreement shall be subject to and
governed by the laws of the State of Minnesota.
(b.) Binding Effect. This Agreement shall inure to the benefit
of and be binding on the parties hereto, their successors and
assigns.
(c.) Assignment. Neither party hereto may assign this Agreement
or any rights or obligations hereunder, in whole or in part,
without the prior written consent of the other party, which
consent shall not be unreasonable withheld or denied. However,
consent shall not be required for merger, consolidation or sale
of all or substantially all of the assets of a party.
(d.) Severability. If any provision of this Agreement is found
to be contrary to law or unenforceable by a court of competent
jurisdiction, the remaining provisions shall be severable and
enforceable in accordance with their terms, unless such unlawful
or unenforceable provision is material to the transactions
contemplated hereby, in which case the parties shall negotiate in
good faith a substitute provision.
(e.) Amendments. Except as otherwise provided herein, this
Agreement may not be amended, supplemented or otherwise modified
except by written instrument signed by duly authorized
representatives of the parties hereto.
(f.) Headings. The descriptive headings contained in this
Agreement are for convenience only and do not constitute a part
of this Agreement.
(g.) Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with
respect to the subject matter hereof and there are no
representations, understandings or agreements, oral or written,
expressed or implied, that are not included herein.
(h.) Survival. At the time of termination of this Agreement or
any cancellation hereof, the appropriate provisions hereof shall
survive as necessary to complete any payment or credit provided
for hereunder with respect to coal sold and delivered prior to
the date of such termination or cancellation.
(i.) Each Party Responsible for Actions. It is the intent of
this Section 18 that each party be responsible for its own acts
and omissions.
WITNESS the signatures of the parties hereto this 17th day of
October, 2001
OTTER TAIL POWER COMPANY NORTHWESTERN PUBLIC SERVICE,
a Division of Otter Tail Corporation a Division of NorthWestern Corporation
By: /s/Xxxx Xxxxxxx By: /s/Xxxx Xxxx
------------------------------ -------------------------------
Title: VP, COO Energy Supply Title: VP Energy Operations
--------------------------- ----------------------------
MONTANA-DAKOTA UTILITIES CO., RAG Coal West, Inc
a Division of MDU Resources Inc.
By: /s/Xxxxx Xxxxxxx By: /s/Xxxxx X. Deal
------------------------------ ------------------------------
Title: Vice President Energy Supply Title: V.P. Sales
---------------------------- --------------------------
EXHIBIT A
---------
Mine: *
Seam: *
Date: *
PROXIMATE ANALYSIS AVERAGE STD. DEV. RANGE
As Received * * *
Moisture
Ash
Volatile
Fixed Carbon
Sulfur
Btu
MAF Btu
SULFUR FORMS
Pyritic
Organic
Sulfate
WATER SOLUBLE ALKALIS
Water Soluble Na2O
Water Soluble K2O
FUSION
Reducing
Initial Deformation
H=W
H=1/2W
Fluid
Oxidizing
Initial Deformation
H=W
H=1/2W
Fluid
ULTIMATE ANALYSIS
Carbon
Hydrogen
Nitrogen
Chlorine
Sulfur
Ash
Oxygen
Moisture
EXHIBIT A
---------
Mine: *
Seam: *
Date: *
PROXIMATE ANALYSIS AVERAGE STD. DEV. RANGE
As Received * * *
Moisture
Ash
Volatile
Fixed Carbon
Sulfur
Btu
MAF Btu
SULFUR FORMS
Pyritic
Organic
Sulfate
WATER SOLUBLE ALKALIS
Water Soluble Na2O
Water Soluble K2O
FUSION
Reducing
Initial Deformation
H=W
H=1/2W
Fluid
Oxidizing
Initial Deformation
H=W
H=1/2W
Fluid
ULTIMATE ANALYSIS
Carbon
Hydrogen
Nitrogen
Chlorine
Sulfur
Ash
Oxygen
Moisture
EXHIBIT B
---------
Belle Ayr Mine
Mining Taxes Component
As Of May 1, 2001
INPUT VARIABLE
AMOUNT NAME DESCRIPTION
------ ---- -----------
* * *
PRICE
COMPONENT DESCRIPTION FORMULAS
--------- ----------- --------
* * *
EXHIBIT B
---------
Eagle Butte Mine
Mining Taxes Component
As Of May 1, 2001
INPUT VARIABLE
AMOUNT NAME DESCRIPTION
------ ---- -----------
* * *
PRICE
COMPONENT DESCRIPTION FORMULAS
--------- ----------- --------
* * *
EXHIBIT C - TRANSPORTATION AGREEMENT EXCERPTS
SECTION 9. WEIGHING
9(A) Weighing.
The parties agree that the weight of the Coal in the Coal Cars will
be determined at Origins by UTILITIES' Origin Mine operator. BN
shall not be responsible for such weight determinations. The weights
ascertained by said operators pursuant to Section 11(J) shall be used
for the assessment of the freight charges thereunder. Weighing shall
be performed on scales inspected semi-annually at no cost to BN, in
accordance with the then-current AAR Scale Handbook specifications
for such scales, and subject to supervision and verification by BN
or its agent.
9(B) Breakdown Of Scales.
If weights cannot be determined due to a breakdown of the scales at
Origins, the weight per Train to be used for the assessment of
freight charges thereunder shall be determined by averaging the per
car weights on the ten (10) immediately preceding weighed shipments
from the same Origin to Destination, adjusted to any variance in the
number of cars per shipment.
9(C) Gross Load Limit and Overloads.
If a loaded Coal Car is found by BN to weigh in excess 270,000
pounds, BN shall, if necessary, switch said overloaded Coal Car and
remove it from the Train. BN retains the right to refuse to accept
or transport overloaded Car(s). BN is not be obligated to reduce the
lading of such Car(s), which obligation is solely UTILITIES' under
this Agreement. After UTILITIES, at no expense to BN, cause any
excess Coal to be removed from the overloaded Coal Car, BN shall
replace the Coal Car into the Train. For such services in removing
and replacing each such Coal Car, UTILITIES shall pay a charge to BN
of $372.00 per Coal Car. If the excess Coal is removed during the
Free Time at Origin without removing the Coal Car from a Train, there
shall be no charge to UTILITIES. BN reserves the right to increase
the maximum gross weight on rail above 270,000 pounds. UTILITIES are
not obligated to ship in excess of 270,000 pounds.
SECTION 10. LOADING AND UNLOADING
10(A) Advance Notice and Loading.
(1) BN will make Trains of empty Coal Cars available at Origins for
loading. BN shall furnish the Origin Mine Operator not less than four
(4) hours advance notice by radio, telex, telephone or other reasonable
means of the arrival of such Trains of Coal Cars at Origin for loading.
(2) UTILITIES and/or its Mine Operator shall be responsible for the
loading of Coal Cars. The parties agree to cooperate with the Mine
Operator to provide for the efficient loading of the Coal Cars at an
Origin. BN shall provide Locomotives and Train crews to move Trains
through the Loading Facility at a controlled speed as designated by
UTILITIES Mine Operator; PROVIDED, HOWEVER, that BN will not be required
to move Cars at a speed less than five/tenths (.5) mile per hour, but
to the extent it is able to operate at a lesser speed, will upon
request use its best efforts to do so.
CONFIDENTIAL CONTRACT ICC-BN-C-2913
10(B) Placement and Free Time - Origin.
(1) Four (4) hours free time will be allowed to load all empty Coal Cars
in a Train, commencing after the Actual or Constructive Placement of the
Train at the designated notification point at the Origin ready for
loading ("Loading Free Time"); PROVIDED, HOWEVER, that Loading Free Time
shall be extended for a period of time equivalent to that by which
loading was prevented as a result of (i) a Loading Disability, or
(ii) any occurrence attributable to BN which prevents loading. If BN
fails to provide four (4) hours advance notice of arrival at Origin,
a Train's Loading Free Time shall be extended by the additional amount
of time (but not to exceed four (4) hours) that it takes to load a Train
due to BN's failure to provide the required notice. If a Train is not
loaded and released during the applicable Loading Free Time, BN may
collect from UTILITIES an Origin Detention Charge of $308.00 per hour
(including any fraction of an hour) until such time as the Train is
loaded and released.
(2) For purposes of this Section 10, "Actual Placement" is made when a
Unit Train arrives at Origin Mine's designated notification point (as
described in the BN timetable and the Train crew has requested loading
instructions. In the event a Train cannot be Actually Placed at an
Origin, notice shall be given immediately to Origin Mine Operator by
radio, telex, telephone or other reasonable means, and BN may place the
Train at an available hold point until such time as Origin Mine Operator
notifies BN that Actual Placement can be made, whereupon it shall
be moved to Origin.
(3) For purposes of this Section 10, "Constructive Placement" begins
when a Train is placed at an available hold point because it is
prevented from being Actually Placed; PROVIDED, HOWEVER, that
Constructive Placement shall not take place when Actual Placement is
prevented (i) due to any cause that would extend Loading Free Time, or
(ii) because the Loading Free Time for another Train ahead of the Train
in question has not expired ("Origin Bunching"). The time required for
the movement of a Constructively Placed Train from a hold point to an
Origin will not be included in the computation of Free Time.
(4) "Loading Disability" means any of the following events which
directly result in the inability to load Coal into a Train at an Origin:
(i) an Act of God; (ii) a strike or other labor disturbance; (iii) a riot
or other civil disturbance; (iv) rain, snow and/or ice accumulation
sufficient to immobilize Train or Mine operations or prevent loading of
such Train; (v) an act of regulation of local, state or federal
government authorities; or (vi) mechanical or electrical breakdown,
explosion or fire (including shutdown for emergency maintenance or the
like which may be necessary to mitigate or eliminate the imminent threat
of explosion, fire or mechanical or electrical breakdown), or accident
affecting a Loading Facility at the Origin then being utilized by
UTILITIES or affecting BN's locomotives or other railroad equipment.
UTILITIES or UTILITIES' Mine Operator shall notify BN by telephone,
telegraph, or radio or other reasonable means (i) within one and one-half
(1.5) hours of the commencement of a Loading Disability as to the nature
and time of commencement of the Loading Disability, and (ii) within
one and one-half (1.5) hours after the termination of a Loading
Disability as to the time of termination of the Loading Disability,
except that the notifications in (i) and (ii) above shall not be
necessary if the Loading Disability lasts for a period of one and
one-half (1.5) hours or less.
Exhibit 10-B (Continued)
(*) Confidential information has been omitted and filed separately with
the Commission pursuant to Rule 24b-2.
COAL SUPPLY AGREEMENT
by and between
OTTER TAIL POWER COMPANY, NORTHWESTERN PUBLIC SERVICE,
MONTANA-DAKOTA UTILITIES CO.
and
RAG Coal West, Inc.
THIS COAL SUPPLY AGREEMENT ("Agreement") is made and entered
into as of September 28, 2001 (the "Effective Date"), by and
between OTTER TAIL POWER COMPANY, A DIVISION OF OTTER TAIL
CORPORATION, NORTHWESTERN PUBLIC SERVICE , A DIVISION OF
NORTHWESTERN CORPORATION, MONTANA-DAKOTA UTILITIES CO., A DIVISION
OF MDU RESOURCES INC., hereinafter together called "Buyers or
Buyer" and RAG Coal West, Inc., hereinafter called "Seller."
WHEREAS:
A. Seller desires to sell coal from its Belle Ayr and Eagle
Butte mines located in Xxxxxxxx County, Wyoming ("the Mines"),
under the terms and conditions herein set forth; and
B. Buyers desire to secure an adequate supply of coal of the
quality and quantity as set forth in this Agreement; and
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements of the parties contained herein, Seller
agrees to sell and deliver to Buyers and Buyers agree to purchase,
receive and pay for coal from Seller upon the following terms and
conditions:
1. TERM
----
The term of this Agreement shall be for * commencing on *
and continue through and include * unless sooner terminated
as provided herein.
2. QUANTITY
--------
(a.) Volume of coal to be purchased and sold during the Term
Belle Ayr Eagle Butte**
--------- -----------
* *
**Seller shall have the unilateral right but not the
obligation to deliver all or a portion of the tons stated
above from the Belle Ayr Mine during the Term. Seller must
notify Buyer by * of its intent to make this change in
origin. If during the Term Seller desires to deliver
additional tons from the Belle Ayr Mine, (other than
those declared by *), such volume shall be transferred
from the Eagle Butte Mine to the Belle Ayr Mine only
by mutual agreement of the parties. If for reasons of
Force Majeure as stated in Paragraph 9., the Belle Ayr Mine
is unable to ship such tons, they shall be again originated
from the Eagle Butte Mine.
(b) Delivery Schedule: Deliveries from the Mines shall be
scheduled to occur in monthly quantities during each calendar year.
Buyer shall provide Seller with its written monthly schedule for
the calendar year *. In providing the monthly schedules to
Seller, Buyer shall use its best faith efforts to provide an
accurate estimate of its projected need for coal on a monthly
basis. Buyer shall use best efforts to keep monthly quantities
approximately equal except for scheduled overhaul and test
xxxxx. However, the parties agree that the monthly schedules are
for the convenience of the parties and in no way binding on the
Buyer and that no penalty of any kind shall accrue to Buyer if
for any reason the Buyer is (1) unable to take delivery of
the amount of monthly coal scheduled or (2) takes delivery of more
coal than scheduled in order to make-up for any previous months'
deficiencies. Except as provided in Section 2(c) below, any
variance in the amount of monthly coal scheduled and actually
delivered shall not relieve either Seller or Buyer from their
respective obligations to sell and purchase the minimum amounts of
coal set forth in Section 2(a).
(c) Reduction in Quantities Where, through fault of the Buyer,
Buyer fails to take delivery of the amount of coal scheduled for
any month because an appropriate amount of suitable and compatible
unit trains is not provided to Seller, the following shall apply:
Seller shall have the option at its discretion to reduce, in the
affected calendar year, the amount of coal that it is obligated to
provide under Section 2(a) in the amount that Buyer fails to take
delivery. Seller may reduce its supply obligation only by giving
Buyer written notice of its intent to do so within 10 days of the
end of the calendar quarter in which the failure to take delivery
occurs. When Seller provides such notice to Buyer, such notice
shall also relieve Buyer of any further obligation with regard to
purchasing or taking delivery of the coal previously not taken.
Seller's option to reduce its supply obligation as provided above
does not apply when the failure to provide an appropriate amount of
suitable and compatible unit trains is not through any fault of
Buyer. Failure by the rail car carrier to provide an appropriate
amount of suitable and compatible unit trains to Seller shall not
be considered the fault of the Buyer. Buyer agrees, however, to
use its best efforts to assure that the railcar carrier provides
the appropriate amount of suitable and compatible unit trains to
the Seller.
(d) Additional or Lesser Quantities Buyer and Seller may agree
to increase or decrease the Annual Quantity as nominated by Buyer
in Section 2(a) throughout the Term by designating any such
increase or decrease in a written instrument signed by duly
authorized representatives of the parties. Such increase or
decrease shall become effective only through written mutual
agreement of the parties.
(e) Additional Cost to Buyer through Fault of Seller Where
Seller fails, through no fault of the Buyer railcar carrier or
event covered by Section 9, to load Buyer's rail cars with
coal on a timely basis that causes coal to be delivered to
Buyer on an untimely basis or not at all, and where, as a
result, Buyer incurs additional costs in a commercially
prudent and verifiable manner, either because Buyer must use
coal in its outside storage stockpile, secure coal from other
sources, or otherwise, Seller shall be responsible to Buyer
for these prudent and verifiable additional costs. Seller
shall have the right of first refusal to replenish Buyer's
outside storage stockpile.
3. SOURCE
------
(a). The source of coal to be sold pursuant to this Agreement shall
be mined and supplied from the Mines. Seller represents and
warrants that the Mines have coal of a quality and in quantities
that are sufficient to satisfy the requirements of this Agreement.
Seller further warrants that the title to all coal delivered under
this Agreement shall be good and that such coal shall be free from
any claim, lien or other encumbrance.
(b.) From time to time, Seller shall have the right but not the
obligation to deliver coal from another mine on an identical cents
per million delivered basis. Seller must first gain Buyer's
written permission.
4. COAL QUALITY
------------
Coal supplied hereunder will be substantially free from impurities
and foreign matter such as, but not limited to, dirt, bone, slate,
earth, rock, pyrite, wood, tramp metal and mine debris prior to
leaving the Mine. Coal will be raw, run-of-mine, crushed to 2" x
0". Seller represents that typical values of BTUs, moisture, ash,
sulfur, and the values for other quality characteristics are as set
forth in Exhibit A to this Agreement. The coal to be delivered
shall meet the following specifications on a quarterly, ton-
weighted average as received basis of not less than six (6)
trainload lots:
"As Received" Belle Ayr Eagle Butte
----------- --------- -----------
Heating Value, BTU/lb. min. * *
Total Ash, % max.
#SO2/mmBtu max.
Total Moisture, % max.
Seller shall provide Buyer with the analyses of each unit-train
loading by facsimile prior to unloading of coal at the Plant. Buyer
shall have the right but not the obligation to reject any
trainload of coal that is over the maximums or under the minimums
of the above specifications by more than * BTU, * % Ash, * #SO2/mmBtu
and * % Moisture, by giving notice to Seller within two business days
of receiving the analyses from Seller. In the event Buyer rejects
such non-conforming coal, title to and risk of loss of the coal
shall be considered to have never passed to Buyer and Buyer may, at
its sole option, stop the affected shipment in route, prevent the
unloading of the affected shipment, return the coal to Seller or
mutually agree with Seller upon a disposition for such coal
shipment, all at Seller's cost and risk.
5. PRICING
-------
The price of coal supplied hereunder shall be based on the
following schedule. Prices shall be per ton F.O.B. Buyer's railcars
at the Mines (the "Base Price"). The Base Price includes all
Governmental Impositions as of May 1, 2001.
YEAR Belle Ayr Mine Eagle Butte Mine
---- -------------- ----------------
* * *
(a.) Base Price: The Base Price may be adjusted only in accordance
with paragraph b and c of this Section.
(b.) Governmental Impositions and Taxes: Seller represents that
the Mine is in compliance with all governmental laws, rules and
regulations in effect as of May 1, 2001 and that the cost of such
compliance, including Mine closure and all reclamation costs, is
included in the Base Price set forth in Section 5(a). If the
imposition or repeal of any law, regulation or ruling (including
changes in interpretations or administration of existing laws,
regulations or rulings, or change in tax rates is adopted or
becomes effective on or after May 1, 2001 (hereinafter called
"Governmental Imposition") and the imposition, repeal, or change in
tax rate was not known as of the effective date, Seller shall
demonstrate to Buyer, to Buyer's satisfaction, that such
Governmental Imposition has increased or decreased the cost of
owning or operating the Mine as it relates to the production of
coal from the Mine for sale to Buyer under this Agreement. Upon
agreement of the parties, the then effective Base Price shall be
adjusted by adding or subtracting the per ton cost of the
Governmental Imposition to determine an adjusted Base Price. If
the Government Imposition will continue for the life of this
Agreement, then the Base Price, to be included in an extension of
the term of this Agreement, if any, shall also be adjusted by the
per ton amount of the Governmental Imposition.
Seller shall submit to Buyer in writing, an analysis identifying
the Governmental Imposition causing the cost impact and the extent
of such cost impact on ownership or operation of the Mine or on the
production of coal purchased hereunder and showing the calculation
of the amount of change in the Base Price. The effective date of
any price increase or decrease pursuant to this Section 5(b) shall
be the effective date of the Governmental Imposition causing the
cost increase or decrease but, in no event prior to the date of
actual commencement of expenditure or accrual thereof by Seller.
(c.) Adjustment for Calorific Value: The Base Price is calculated
on the assumption of an average monthly calorific coal value of *
BTUs per pound from the Belle Ayr Mine and * Btu per pound from the
Eagle Butte Mine (the "Specified Average"); provided, however,
the parties recognize that the calorific value of coal actually
delivered hereunder may vary from such Specified Average. If the
weighted average calorific value of the coal furnished in any month
deviates from the Specified Average, then an adjustment will be made
to the Base Price of coal according to the following equation:
A = (B/C) X (D)
Where:
A - Adjusted Price rounded to the nearest mil ($.001)
B - Weighted average (BTUs per pound) calorific value of
coal delivered during the month from each Mine
C - Applicable Specified Average (BTUs per pound)
calorific value of coal.
D - Applicable Base Price from the Mine.
6. BILLING AND PAYMENT
-------------------
(a.) On or before the fifth (5th) and twentieth (20th) working day
of each month, Seller shall render to Buyer at its Plant address
provided in Section 14 a semi-monthly invoice which shall indicate
the actual tonnage and ton-weighted average calorific value of coal
shipped during the previous billing period and the Adjusted Price
which takes calorific value into account as defined in Section 5(c)
and changes resulting from the changes in Governmental Impositions,
if any.
(b.) Buyer shall electronically pay such invoice within ten (10)
working days after receipt thereof. Unless advised in writing to
send all payments to another address, payment shall be sent by
electronic means to:
LaSalle Bank, N. A.
Chicago, Illinois
ABA No. 000-000-000
Account No. 5800248527
Account Name: RAG Coal West, Inc.
(c.) If Buyer defaults on any payment, Buyer shall pay simple
interest thereon at the rate, not to exceed applicable State of
Minnesota and Federal laws, that shall be equal to two percent (2%)
over the base rate of interest charged by Citibank of New York or
any successor bank on new ninety-day loans to responsible and
substantial commercial borrowers on the date the interest charge
begins. Such interest shall run from the date the payment was due
until it is paid.
(d.) If any invoice is in dispute, Buyer nevertheless shall pay the
undisputed amount, and if Buyer or Seller is due any payment or
credit pursuant to the resolution of the dispute, the simple
interest on the payment or credit shall be paid by the party owing
such payment or credit at the rate, not to exceed applicable State
of Minnesota and Federal laws, that shall be equal to two percent
(2%) over the base rate of interest charged by Citibank of New York
or any successor bank on new ninety-day loans to responsible and
substantial commercial borrowers on the date of Buyer's payment or
credit from Seller of the disputed invoice and shall run until the
date payment or credit is made following resolution of the dispute.
(e.) Should Buyer fail to pay Seller for any amount due and owing
in accordance with this Section 6 within thirty (30) days after its
receipt of Seller's written demand for payment, then Seller shall
also have the right, but not the obligation, to suspend deliveries
under this Agreement by so notifying Buyer in writing. Should
Buyer fail to pay Seller for any amount due and owing in accordance
with this Section 6 within ninety (90) days after its receipt of
Seller's written demand for payment, then Seller shall have the
right, but not the obligation to terminate this Agreement by so
notifying Buyer in writing.
(f.) Such suspension or termination shall become effective as of
the date written notice is received by Buyer. Neither Party shall
accrue any additional rights against the other as a result of a
suspension or termination permitted in this Section 6. Seller
shall lose the right provided in this Section 6 to suspend or
terminate if it has not sent written notice of such suspension or
termination prior to Buyer's payment of the amount due and owing.
Seller's failure to exercise its right to suspend or terminate as
provided in this Section 6 shall not be deemed a waiver of its
right to suspend or terminate for any subsequent default by Buyer
to perform as provided in this Section 6.
7. SAMPLING AND ANALYSIS
---------------------
(a.) Seller shall cause, at its expense, to be taken a
representative sample of each unit train shipment of coal at the
point of loading, to be sampled and analyzed in accordance with
methods set forth in applicable American Society for Testing and
Materials ("ASTM") standards. All samples shall be divided into at
least four (4) parts and put in suitable airtight containers. One
part shall be furnished to Buyer or its designee for its
disposition, one part shall be retained for analysis by Seller, and
two parts shall be retained by Seller or its designee in one of the
aforesaid containers properly sealed and labeled for a period
forty-five (45) days after the date of sample collection for use as
a referee should a dispute arise and the other for a back-up for
any unforeseeable qualitative issues. All parts are to be clearly
labeled as to Mine, date of sampling, date of preparation, and
other identification as to shipment (such as train identification
number) and are to be sent within forty-eight (48) hours of train
loading, or prior to arrival of train at destination, whichever
comes first, to Buyer at the address provided in Section 14 hereof.
Upon Buyer's written request and at Buyer's cost, Seller shall send
the 4th part to Buyer's designated laboratory for mercury and
chlorine content analysis.
(b.) Seller shall perform at Seller's cost a "short proximate"
analysis (for moisture, ash, sulfur, and calorific value) for each
trainload sample and will forward such analysis to Buyer by a
mutually agreed upon method of electronic communication. The
results of such analysis shall be determinative of the quality of
the unit train of coal represented by such sample unless a dispute
arises due to a difference between Buyer's and Seller's analysis
whereby such difference exceeds ASTM tolerances,
(c.) If a dispute arises between Buyer and Seller concerning a
trainload sample due to a difference outside ASTM tolerances,
within forty-five (45) days of the date on which the subject
trainload was loaded, an analysis of the third part shall be made
by an independent commercial testing laboratory, mutually chosen by
Buyer and Seller, in accordance with methods set forth in
applicable ASTM standards. The results of such independent
laboratory analysis shall be determinative for purposes of contract
compliance and invoicing. Buyer and Seller shall share the cost of
such analysis equally.
(d.) The results of the sampling and analysis performed by Seller
shall govern for purposes of determining any adjustments to the
Base Price of coal set forth in Section 5(c) for variations in
calorific value, except in the event a dispute arises under Section
7(c), in which event Section 7(c) shall control.
(e.) Buyer shall have the right, at its own cost, risk and expense,
to have a representative present at any and all times to observe
the sampling and analysis, in a manner that does not interfere with
Seller's operation of its Mine.
8. WEIGHING AND LOADING
--------------------
(a.) Point of Delivery: Coal shall be delivered F.O.B. Buyer's
railcars at Seller's railroad loadout facility at the Mines. Upon
completion of the loading of each railcar, title and risk of loss
for all coal loaded therein shall pass to Buyer. Buyer shall
arrange for the provision of suitable and compatible unit trains of
open-top railcars for the transportation of coal purchased by Buyer
under this Agreement.
(b.) Loading Facilities and Procedure: Seller shall operate its
loading facilities twenty-four (24) hours per day, 365 days per
year. Seller shall load each unit train at Seller's expense as
closely as practicable to its capacity. Seller shall complete the
loading of each unit train within four (4) hours after the first
empty railcar is placed into position for loading. Unless excused
by Force Majeure as provided below, Seller shall pay Buyer for any
increased transportation charges incurred as a result of Seller's
failure to comply with the freetime, overloading and underloading
set forth in the excerpts from Buyer's transportation agreement
provisions as set forth in Exhibit C.
(c.) Weighing: The weight of coal sold and delivered under this
Agreement shall be determined on a per shipment basis by certified
commercial scales at Seller's train loading facility at the Mine.
The weights thus determined shall be accepted as the quantity of
coal for which invoices are to be rendered and payments made in
accordance with Section 6. Seller shall furnish the railroad
company transporting the coal with copies of the weights determined
under this Agreement. Coal supplied under this Agreement shall be
weighed at Seller's expense. Seller's scales used to determine such
weight shall be tested, calibrated and certified in accordance with
intervals of approximately every six (6) months by a qualified
testing agency. Seller shall use its best efforts to give Buyer no
less than ten (10) days notice of the anticipated time of scale
test. Buyer shall also have the right, at Buyer's expense and upon
reasonable notice, to have the scales checked for accuracy at any
reasonable time or frequency. If the scales are found to be over
or under the tolerance range allowable for the scale based on ASTM
standards, either party shall pay to the other any amounts owed due
to such inaccuracy for a period not to exceed thirty (30) days
before the time any inaccuracy of scales is determined.
Buyer shall have the right, at its own cost, risk and expense, to
have a representative present at any and all times to observe the
weighings or scale test, in a manner that does not interfere with
Seller's operation of its Mine.
(d.) Data Transmission: Seller shall provide to Buyer within two
business days of completion of loading each train, a train loading
manifest for each train by a mutually agreed upon method of
electronic transmission.
9. FORCE MAJEURE
-------------
(a.) Definition: For purposes of this Agreement, the term "Force
Majeure" is defined as any cause beyond the reasonable control and
without the intentional fault or willful negligence of the party
affected thereby which is the proximate cause of a party's whole or
partial inability to perform its obligations under this Agreement.
For purposes of this Agreement, Force Majeure includes, without
limitation, Acts of God, unusual accumulations of snow or ice,
floods, frozen coal, interruptions of transportation, interruptions
or breakdowns of the power facilities connecting with Buyer or
Seller's facilities, embargoes, acts of civil authority (including
State and Federal agencies and courts of competent jurisdiction),
acts of military authority, war, insurrections, riots, strikes,
lockouts, work stoppages, labor or material shortages, or
explosions, fires, adverse geological conditions, or unanticipated
or non-routine mechanical breakdowns (including but not limited to
shutdowns for emergency maintenance or the like which may be
necessary to mitigate or eliminate the imminent threat of
explosions, fires, or mechanical breakdowns) at the Mine or at
Buyer's Plant . Force Majeure also includes other causes of a
similar nature that wholly or partially prevent the mining,
hauling, processing, or loading of coal by Seller or the receiving,
transporting, storing, unloading or utilizing of coal by Buyer.
(b.) Effect of Force Majeure: If, because of an event of Force
Majeure, either Seller or Buyer is unable to carry out any of its
obligations under this Agreement, except obligations to pay money
to the other party due to coal already sold, and if such party
shall promptly give to the other party written notice of such event
of Force Majeure, then the obligations under this Agreement of the
party giving such notice shall be suspended to the extent made
necessary by such event of Force Majeure and will continue
throughout the continuance of such event; provided, however, that
the party giving such notice shall use good faith efforts to
eliminate such event of Force Majeure or its effect insofar as
possible with a minimum of delay. Nothing herein contained shall
cause the party invoking Force Majeure to submit to what it
considers to be unreasonable conditions or restrictions, to make an
unreasonable expenditure of money or to submit to a labor Agreement
it deems unfavorable, and it is agreed that any settlement of labor
strikes or difference with workmen shall be entirely within the
sole discretion of the affected party. Deficiencies in receiving
coal caused by a Force Majeure event shall be made up only upon
mutual consent between Buyer and Seller.
10. TITLE
-----
Title, right of possession and risks of loss of the coal shall pass
from Seller to Buyer upon loading into Buyer's owned or controlled
railcar. Seller agrees to load railcars in accordance with
industry standards or reasonable rail carrier's instructions as
attached hereto.
11. TERMINATION AND CANCELLATION
----------------------------
Either party to this Agreement may cancel this Agreement upon
written notice to the other party of such party's failure to comply
with any of the material provisions or obligations in this
Agreement, provided that notice of such failure has been given and
not less than thirty (30) days have elapsed with no curative action
having commenced. Seller and Buyer may terminate this Agreement
immediately upon written notice to the other in the event the other
becomes insolvent or files for protection under any applicable
bankruptcy laws. Buyer shall remain obligated to pay for all coal
delivered by Seller and accepted by Buyer prior to the date of
termination or cancellation.
12. INDEMNITY AND LIABILITY
-----------------------
Each party hereby agrees to indemnify, save and hold harmless the
other, from and against all liability from damage to property or
injury or death of any person or persons arising out of or
resulting from the willful or negligent acts or omissions of such
party, its agents and employees; provided however, that when
employees or agents of either party hereto enter upon the premises
of the other party, such entry shall be at the sole risk of the
party who is the employer of such employee or agent, and such
employer shall hold harmless the other party from all claims by its
employees or agent, unless such injury or death or damage to
property is a result of gross negligence of the other party.
13. LAWS AND REGULATIONS
--------------------
The Seller and Buyer shall comply with all applicable federal,
state and local laws, ordinances, statutes, codes, rules, and
regulations in the performance of its obligations under this
Agreement.
14. NOTICES
-------
All notices required hereunder will be in writing and will be
deemed properly given when sent by telecopy, to the addresses as
provided below, or to such other addresses as Buyer or Seller may
hereafter specify for such purpose, provided that all notices will
be confirmed immediately by commercial delivery service, e.g.,
Federal Express or U.P.S. or registered certified mail.
Buyer's address is: Seller's address is;
------------------ -------------------
Big Stone Plant 00 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
c/o Otter Tail Power Company Xxxxxxxxx, Xxxxxxxx 00000-0000
X.X. Xxx 000 Attn: Vice President Western Sales
Big Xxxxx Xxxx, XX 00000 Fax: 303/000-0000
Attn: Fuel Supervisor
Fax (000) 000-0000
With a courtesy notice to: With a courtesy notice to:
------------------------- -------------------------
Otter Tail Power Company RAG Coal West, Inc.
000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxxxx, Xxxxxxx 00000
Attn: Production Services Attention: President
Fax: (000) 000-0000
15. CONFIDENTIALITY
---------------
Except as hereinafter provided, the terms and conditions set forth
in this Agreement, and all information supplied to the other party
pursuant to this Agreement, are considered by both Buyer and Seller
to be confidential, and neither party shall disclose any such
information to any third party without the advance written consent
of the other party, which consent shall not be unreasonably
withheld, except where such disclosure may be required by law or in
connection with the assertion of a claim or defense in judicial or
administrative proceedings involving the parties hereto, in which
event the party required to make such disclosure shall advise the
other in advance in writing and shall cooperate to the extent
practicable to minimize the disclosure of any such information.
16. WARRANTIES
----------
THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE SOLE
WARRANTIES GIVEN BY EITHER PARTY TO THE OTHER IN CONNECTION WITH
THE SALE AND PURCHASE OF COAL PROVIDED HEREIN. THE PARTIES HEREBY
EXPRESSLY WAIVE AND DISCLAIM ANY STATUTORY OR IMPLIED WARRANTIES
THAT MAY BE APPLICABLE TO THE SUBJECT MATTER OF THIS AGREEMENT
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
17. DISPUTE RESOLUTION
------------------
(a.) No party to this Agreement shall be entitled to take legal
action with respect to any dispute arising from or relating to the
Agreement until it has complied, in good faith, with the procedures
set forth in paragraph b and c below.
(b.) Negotiation
(1) The parties shall attempt promptly and in good faith to
resolve any dispute arising out of or relating to this
Agreement through negotiations between representatives who
have the authority to settle the controversy. All
negotiations pursuant to this clause shall be confidential
and treated as compromise and settlement negotiations for
the purpose of the federal and state rules of evidence.
(2) Either party may give the other written notice of any
dispute not resolved in the normal course of business. As
soon as mutually agreeable after delivery of this notice,
representatives of the parties shall meet at a mutually
acceptable time and place (or by telephone), and thereafter
as often as they reasonably may deem necessary to attempt to
resolve the dispute. Unless the parties to the dispute agree
that the dispute cannot be resolved through unassisted
negotiation, negotiations shall not be deemed at an impasse
until 60 days after the written notice of the dispute.
(3) If a negotiator intends to be accompanied at a meeting
by any attorney, the other negotiator(s) shall be given at
least three working days' notice of such intention and may
also be accompanied by an attorney.
(c.) Alternative dispute resolution procedure
----------------------------------------
(1) If a dispute has reached impasse, either party may suggest
use of alternative dispute resolution ("ADR") procedures.
Once that party has notified the other of desire to initiate
ADR, the parties may select the ADR method they may wish to
use by mutual agreement. That ADR method may include
arbitration, mediation, mini-trial, or any other method that
best suits the circumstances of the dispute. The parties
shall agree in writing to an ADR method selected and to the
procedural rules to be followed as promptly as possible. To
the extent the parties are unable to agree on a procedural
rules in whole or in part, the current center for public
resources ("CPR") model procedure for mediation of business
disputes, CPR model mini-trial procedure, or CPR commercial
arbitration rules-whichever applies to the chosen ADR
method-shall control, to the extent such rules are consistent
with the provisions of this section.
(2) If the parties are unable to agree on an ADR method or
unwilling to use ADR to resolve the dispute, either party
shall be free to resort to litigation.
(3) If the parties agree on an ADR method other than
arbitration, the decision rendered in that proceeding shall
not be binding on any party except by agreement of the
parties, and either party may seek resolution of the dispute
through litigation. If the parties agree on arbitration as an
ADR method, the decision of the arbitrator(s) shall be binding
on all parties, pursuant to the United States Arbitration
Act 9 USCA Sec. 1 et seq. The arbitrator(s) shall not award
punitive or exemplary damages against either party.
18. MISCELLANEOUS
-------------
(a.) Governing Law. This Agreement shall be subject to and
governed by the laws of the State of Minnesota.
(b.) Binding Effect. This Agreement shall inure to the benefit of
and be binding on the parties hereto, their successors and assigns.
(c.) Assignment. Neither party hereto may assign this Agreement or
any rights or obligations hereunder, in whole or in part, without
the prior written consent of the other party, which consent shall
not be unreasonable withheld or denied. However, consent shall not
be required for merger, consolidation or sale of all or
substantially all of the assets of a party.
(d.) Severability. If any provision of this Agreement is found to
be contrary to law or unenforceable by a court of competent
jurisdiction, the remaining provisions shall be severable and
enforceable in accordance with their terms, unless such unlawful or
unenforceable provision is material to the transactions
contemplated hereby, in which case the parties shall negotiate in
good faith a substitute provision.
(e.) Amendments. Except as otherwise provided herein, this
Agreement may not be amended, supplemented or otherwise modified
except by written instrument signed by duly authorized
representatives of the parties hereto.
(f.) Headings. The descriptive headings contained in this
Agreement are for convenience only and do not constitute a part of
this Agreement.
(g.) Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect
to the subject matter hereof and there are no representations,
understandings or agreements, oral or written, expressed or
implied, that are not included herein.
(h.) Survival. At the time of termination of this Agreement or any
cancellation hereof, the appropriate provisions hereof shall
survive as necessary to complete any payment or credit provided for
hereunder with respect to coal sold and delivered prior to the date
of such termination or cancellation.
(i.) Each Party Responsible for Actions. It is the intent of this
Section 18 that each party be responsible for its own acts and
omissions.
WITNESS the signatures of the parties hereto this 17th day of
October, 2001
OTTER TAIL POWER COMPANY NORTHWESTERN PUBLIC SERVICE,
a Division of Otter Tail Corporation a Division of NorthWestern Corporation
By: /s/Xxxx Xxxxxxx By: /s/Xxxx Xxxx
------------------------------ -------------------------------
Title: VP, COO Energy Supply Title: VP Energy Operations
--------------------------- ----------------------------
MONTANA-DAKOTA UTILITIES CO., RAG Coal West, Inc
a Division of MDU Resources Inc.
By: /s/Xxxxx Xxxxxxx By: /s/Xxxxx X. Deal
------------------------------ ------------------------------
Title: Vice President Energy Supply Title: V.P. Sales
---------------------------- --------------------------
EXHIBIT A
---------
Mine: *
Seam: *
Date: *
PROXIMATE ANALYSIS AVERAGE STD. DEV. RANGE
As Received * * *
Moisture
Ash
Volatile
Fixed Carbon
Sulfur
Btu
MAF Btu
SULFUR FORMS
Pyritic
Organic
Sulfate
WATER SOLUBLE ALKALIS
Water Soluble Na2O
Water Soluble K2O
FUSION
Reducing
Initial Deformation
H=W
H=1/2W
Fluid
Oxidizing
Initial Deformation
H=W
H=1/2W
Fluid
ULTIMATE ANALYSIS
Carbon
Hydrogen
Nitrogen
Chlorine
Sulfur
Ash
Oxygen
Moisture
EXHIBIT A
---------
Mine: *
Seam: *
Date: *
PROXIMATE ANALYSIS AVERAGE STD. DEV. RANGE
As Received * * *
Moisture
Ash
Volatile
Fixed Carbon
Sulfur
Btu
MAF Btu
SULFUR FORMS
Pyritic
Organic
Sulfate
WATER SOLUBLE ALKALIS
Water Soluble Na2O
Water Soluble K2O
FUSION
Reducing
Initial Deformation
H=W
H=1/2W
Fluid
Oxidizing
Initial Deformation
H=W
H=1/2W
Fluid
ULTIMATE ANALYSIS
Carbon
Hydrogen
Nitrogen
Chlorine
Sulfur
Ash
Oxygen
Moisture
EXHIBIT B
---------
Belle Ayr Mine
Mining Taxes Component
As Of May 1, 2001
INPUT VARIABLE
AMOUNT NAME DESCRIPTION
------ ---- -----------
* * *
PRICE
COMPONENT DESCRIPTION FORMULAS
--------- ----------- --------
* * *
EXHIBIT B
---------
Eagle Butte Mine
Mining Taxes Component
As Of May 1, 2001
INPUT VARIABLE
AMOUNT NAME DESCRIPTION
------ ---- -----------
* * *
PRICE
COMPONENT DESCRIPTION FORMULAS
--------- ----------- --------
* * *
EXHIBIT C - TRANSPORTATION AGREEMENT EXCERPTS
SECTION 9. WEIGHING
9(A) Weighing.
The parties agree that the weight of the Coal in the Coal Cars will
be determined at Origins by UTILITIES' Origin Mine operator. BN
shall not be responsible for such weight determinations. The weights
ascertained by said operators pursuant to Section 11(J) shall be used
for the assessment of the freight charges thereunder. Weighing shall
be performed on scales inspected semi-annually at no cost to BN, in
accordance with the then-current AAR Scale Handbook specifications
for such scales, and subject to supervision and verification by BN
or its agent.
9(B) Breakdown Of Scales.
If weights cannot be determined due to a breakdown of the scales at
Origins, the weight per Train to be used for the assessment of
freight charges thereunder shall be determined by averaging the per
car weights on the ten (10) immediately preceding weighed shipments
from the same Origin to Destination, adjusted to any variance in the
number of cars per shipment.
9(C) Gross Load Limit and Overloads.
If a loaded Coal Car is found by BN to weigh in excess 270,000
pounds, BN shall, if necessary, switch said overloaded Coal Car and
remove it from the Train. BN retains the right to refuse to accept
or transport overloaded Car(s). BN is not be obligated to reduce the
lading of such Car(s), which obligation is solely UTILITIES' under
this Agreement. After UTILITIES, at no expense to BN, cause any
excess Coal to be removed from the overloaded Coal Car, BN shall
replace the Coal Car into the Train. For such services in removing
and replacing each such Coal Car, UTILITIES shall pay a charge to BN
of $372.00 per Coal Car. If the excess Coal is removed during the
Free Time at Origin without removing the Coal Car from a Train, there
shall be no charge to UTILITIES. BN reserves the right to increase
the maximum gross weight on rail above 270,000 pounds. UTILITIES are
not obligated to ship in excess of 270,000 pounds.
SECTION 10. LOADING AND UNLOADING
10(A) Advance Notice and Loading.
(1) BN will make Trains of empty Coal Cars available at Origins for
loading. BN shall furnish the Origin Mine Operator not less than four
(4) hours advance notice by radio, telex, telephone or other reasonable
means of the arrival of such Trains of Coal Cars at Origin for loading.
(2) UTILITIES and/or its Mine Operator shall be responsible for the
loading of Coal Cars. The parties agree to cooperate with the Mine
Operator to provide for the efficient loading of the Coal Cars at an
Origin. BN shall provide Locomotives and Train crews to move Trains
through the Loading Facility at a controlled speed as designated by
UTILITIES Mine Operator; PROVIDED, HOWEVER, that BN will not be required
to move Cars at a speed less than five/tenths (.5) mile per hour, but
to the extent it is able to operate at a lesser speed, will upon
request use its best efforts to do so.
CONFIDENTIAL CONTRACT ICC-BN-C-2913
10(B) Placement and Free Time - Origin.
(1) Four (4) hours free time will be allowed to load all empty Coal Cars
in a Train, commencing after the Actual or Constructive Placement of the
Train at the designated notification point at the Origin ready for
loading ("Loading Free Time"); PROVIDED, HOWEVER, that Loading Free Time
shall be extended for a period of time equivalent to that by which
loading was prevented as a result of (i) a Loading Disability, or
(ii) any occurrence attributable to BN which prevents loading. If BN
fails to provide four (4) hours advance notice of arrival at Origin,
a Train's Loading Free Time shall be extended by the additional amount
of time (but not to exceed four (4) hours) that it takes to load a Train
due to BN's failure to provide the required notice. If a Train is not
loaded and released during the applicable Loading Free Time, BN may
collect from UTILITIES an Origin Detention Charge of $308.00 per hour
(including any fraction of an hour) until such time as the Train is
loaded and released.
(2) For purposes of this Section 10, "Actual Placement" is made when a
Unit Train arrives at Origin Mine's designated notification point (as
described in the BN timetable and the Train crew has requested loading
instructions. In the event a Train cannot be Actually Placed at an
Origin, notice shall be given immediately to Origin Mine Operator by
radio, telex, telephone or other reasonable means, and BN may place the
Train at an available hold point until such time as Origin Mine Operator
notifies BN that Actual Placement can be made, whereupon it shall
be moved to Origin.
(3) For purposes of this Section 10, "Constructive Placement" begins
when a Train is placed at an available hold point because it is
prevented from being Actually Placed; PROVIDED, HOWEVER, that
Constructive Placement shall not take place when Actual Placement is
prevented (i) due to any cause that would extend Loading Free Time, or
(ii) because the Loading Free Time for another Train ahead of the Train
in question has not expired ("Origin Bunching"). The time required for
the movement of a Constructively Placed Train from a hold point to an
Origin will not be included in the computation of Free Time.
(4) "Loading Disability" means any of the following events which
directly result in the inability to load Coal into a Train at an Origin:
(i) an Act of God; (ii) a strike or other labor disturbance; (iii) a riot
or other civil disturbance; (iv) rain, snow and/or ice accumulation
sufficient to immobilize Train or Mine operations or prevent loading of
such Train; (v) an act of regulation of local, state or federal
government authorities; or (vi) mechanical or electrical breakdown,
explosion or fire (including shutdown for emergency maintenance or the
like which may be necessary to mitigate or eliminate the imminent threat
of explosion, fire or mechanical or electrical breakdown), or accident
affecting a Loading Facility at the Origin then being utilized by
UTILITIES or affecting BN's locomotives or other railroad equipment.
UTILITIES or UTILITIES' Mine Operator shall notify BN by telephone,
telegraph, or radio or other reasonable means (i) within one and one-half
(1.5) hours of the commencement of a Loading Disability as to the nature
and time of commencement of the Loading Disability, and (ii) within
one and one-half (1.5) hours after the termination of a Loading
Disability as to the time of termination of the Loading Disability,
except that the notifications in (i) and (ii) above shall not be
necessary if the Loading Disability lasts for a period of one and
one-half (1.5) hours or less.
