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EXHIBIT 10.11
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CAPACITY SALE AND TOLLING AGREEMENT
BY AND BETWEEN
XXXX STREET GENERATING STATION, L.P.,
AND
CONSTELLATION POWER SOURCE, INC.
DATED AS OF NOVEMBER 19, 1998
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CAPACITY SALE AND TOLLING AGREEMENT
THIS CAPACITY SALE AND TOLLING AGREEMENT (this "AGREEMENT") dated as of
November 19, 1998, is executed and entered into by and between Xxxx Street
Generating Station, L.P., a Delaware limited partnership with offices located
at 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 ("XXXX"), and
Constellation Power Source, Inc., a Delaware corporation with offices at 000
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 ("CPS") (Xxxx and CPS
sometimes hereinafter being referred to individually as a "PARTY" and
collectively as the "PARTIES"), with reference to the following:
RECITALS
X. Xxxx is the owner of a 105 MW (gross) combined-cycle cogeneration
facility located at 00 Xxxx Xxxxxx, Xxxx Xxxxxxxx, Xxx Xxxx (the "FACILITY").
The Facility has the capability of operating on either natural gas or No. 2 low
sulfur fuel oil (collectively, "FUEL");
B. The Facility is connected to a substation owned by Niagara Mohawk
Power Corporation ("NIMO") located at the Facility site;
C. CPS is in the business of trading and marketing electricity, gas
and other energy-related commodities and services;
D. CPS wishes to provide, or cause to be provided, Fuel to the Facility
and, in turn, to receive from Xxxx all of the capacity, electric energy (other
than station service energy), Ancillary Services (as hereinafter defined) and
other products generated by the Facility (collectively, the Facility's "MARKET
OUTPUT"); and
X. Xxxx wishes to receive Fuel, provide Fuel Conversion Services (as
hereinafter defined) and deliver and make available to CPS the Facility's
Market Output, all in accordance with and subject to the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations and warranties herein contained, the Parties,
intending to be legally bound, hereby agree as follows:
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ARTICLE 1.0
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS. Capitalized terms used in this Agreement shall have
the following meanings, unless the context clearly requires otherwise:
"ACCEPTED ELECTRICAL PRACTICES" means those practices, methods and
acts that are performed during the relevant time period at facilities of
similar size, location and technology to that of the Facility, or any of the
practices, methods and acts which, in the exercise of reasonable judgment in
light of the facts known at the time a decision is made, could have been
expected to accomplish a desired result at reasonable cost consistent with good
business practices, reliability, efficiency, safety, expedition and
environmental protection. Accepted Electrical Practices are not intended to be
limited to the optimum practices, methods or acts to the exclusion of others,
but rather to include those practices, methods and acts generally accepted or
approved by the industry during the relevant time period.
"ADDITIONAL START-UP FEE" means the amount charged by Xxxx to CPS
pursuant to Section 11.1.3 for each additional Start-up in excess of a
permitted number of daily, weekly and annual Start-ups.
"AFFILIATE" means, with respect to any person, any other entity
that directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such person. For purposes of the
foregoing, "control," "controlled by" and "under common control with," with
respect to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or partnership
interests, by contract or otherwise.
"AGREEMENT" means this Contract Document entitled "Capacity Sale
and Tolling Agreement," and all Exhibits, Schedules and Appendices attached
hereto.
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"ANCILLARY SERVICES" means system control and dispatch service,
reactive supply and voltage support, regulation and frequency response service,
energy imbalance service, operating reserve service and related services
capable of being provided by the Facility for use or sale by CPS in accordance
with the practices, rules and guidelines in effect from time to time within the
New York State Power System.
"ANNUAL HEAT RATE" has the meaning given in Section 7.3.1.
"ANNUAL HEAT RATE GUARANTEE" has the meaning given in Section
7.3.1.
"AVAILABILITY ADJUSTMENT" has the meaning given in Section 11.1.5.
"BANKRUPTCY" means a situation in which (a) a Party files a
voluntary petition in bankruptcy or is adjudicated a bankrupt or insolvent, or
files any petition or answer or consent seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future applicable Law relating to
bankruptcy, insolvency, or other relief for debtors, or seeks or consents or
acquiesces in the appointment of any trustee, receiver, conservator or
liquidator of such Party or of all or any substantial part of its properties
(the term "acquiesce" as used in this definition, to include the failure to
file a petition or motion to vacate or discharge any order, judgment or decree
within fifteen (15) days after entry of such order, judgment or decree); (b) a
court of competent jurisdiction enters an order, judgment or decree approving a
petition filed against any Party seeking a reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future bankruptcy Law or Law relating to insolvency or other
relief for debtors, and such Party acquiesces in the entry of such order,
judgment or decree or such order, judgment or decree remains unvacated and
unstayed for an aggregate of sixty (60) days (whether or not consecutive) from
the date of entry thereof, or any trustee, receiver, conservator or liquidator
of such Party or of all or any substantial part of its property is appointed
without the consent or acquiescence of such Party and such appointment remains
unvacated and unstayed for an aggregate of sixty (60) days, whether or not
consecutive; (c) a Party evidences its inability to pay its debts as they
mature; (d) a Party gives notice to any governmental body of insolvency or
pending insolvency, or suspension or pending suspension of operations; or (e) a
Party makes an assignment for the benefit of creditors or takes any other
similar action for the protection or benefit of creditors.
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"BRITISH THERMAL UNIT" or "BTU" means the amount of heat required
to raise the temperature of one avoirdupois pound of water from fifty-nine
degrees Fahrenheit (59 degrees F) to sixty degrees Fahrenheit (60 degrees F) at
an absolute pressure of fourteen decimal six nine six (14.696) pounds per
square inch. For purposes of this Agreement, Btu's will be calculated on a
Higher Heating Value (HHV) basis.
"CAPACITY" means the total MW output level that the Facility is
capable of producing on a continuous basis.
"XXXX" means Xxxx Street Generating Station, L.P., a Delaware
limited partnership.
"COLD START" means the Start-up of the Facility after its breakers
have been open for at least the number of hours defining a Cold Start, as set
forth in the Facility Operating Procedures.
"CONSENT AND AGREEMENT" means the Consent and Agreement to be
entered into by and among Xxxx, CPS and the Facility Lender pursuant to the
provisions of Section 20.3.
"CONTRACT DOCUMENT" has the meaning given in Section 2.1.
"CONTRACT YEAR" means each calendar year during the Term, except
that the first Contract Year shall begin on the Effective Date and end on
December 31, 1998, and the final Contract Year shall begin on January 1st of
the last year of the Term and end on the Agreement termination date.
"CPS" means Constellation Power Source, Inc., a Delaware
corporation.
"DEFAULTING PARTY" has the meaning given in Section 15.1.1.
"DELAYED PAYMENT RATE" means a per annum rate of interest (computed
on the basis of a 365-day year) equal to the lesser of (a) the prime commercial
lending rate as quoted from time to time by The Wall Street Journal as the
Prime Rate under the column known as "Money Rates", plus 2 percent (2%), and
(b) the maximum rate permitted by applicable New York Law.
"DELIVERY POINT" means each of the physical points set forth on
Exhibit A, as the same may be amended or supplemented from time to time, at
which Net Electric Energy, Ancillary Services, Market Steam, Gas or Fuel Oil is
to be delivered, or provided and measured, pursuant to the provisions of this
Agreement.
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"DEPENDABLE CAPACITY" means the net dependable capacity of the
Facility, which shall be ninety-nine (99) MW during the months of June through
September and one hundred two (102) MW during the months of October through May
for each Contract Year, as adjusted or corrected by not more than five (5)
megawatts in accordance with the provisions of the Facility Operating
Procedures for any period during which the Facility is producing Market Steam
pursuant to the provisions of Section 6.4.
"DISPATCH" means the dispatch by CPS of Net Electric Energy or
Ancillary Services from the Facility in accordance with this Agreement and in
accordance with the procedures in effect from time to time within the NYPP/NY
ISO.
"DISPATCH NOTICE" means a notice issued to Xxxx by or on behalf of
CPS, in substantially the form of Exhibit D attached hereto, to Dispatch the
Facility in accordance with the provisions of Article 6.0.
"DISPATCH PERIOD" means a period of time during which CPS has
requested, by means of a Dispatch Notice, the delivery of Net Electric Energy
or the provision of Ancillary Services. A Dispatch Period may continue for more
than one calendar day.
"DISPUTE" has the meaning given in Section 17.1.1.
"DMWHRS" has the meaning given in Section 15.2.1.
"DOLLARS" or "$" means United States dollars.
"EFFECTIVE DATE" has the meaning given in Article 3.0.
"ENVIRONMENT" means soil, surface waters, groundwaters, land,
stream sediments, surface or subsurface strata, ambient air, and any
environmental medium.
"ENVIRONMENTAL CONDITION" means any condition involving or
resulting from the presence of, or which can reasonably be expected to result
in the Release of Hazardous Materials in the Environment, (whether or not yet
discovered), which is reasonably likely to or does result in any damage, loss,
cost, expense, claim, demand, order, or liability to or against Xxxx or CPS
(including claims by any third party or any Governmental Authority, and
including any condition resulting from any activity or operation formerly
conducted by any person or entity in connection with the Facility.)
"ENVIRONMENTAL INDEMNITEES" has the meaning given in Section 12.4.
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"ENVIRONMENTAL LAW" means any environmental or health and
safety-related Law whether existing as of the date hereof, previously enforced,
or subsequently enacted.
"EVENT OF DEFAULT" has the meaning given in Section 15.1.1.
"EVENT OF DEFAULT TRIGGER" has the meaning given in Section 17.1.2.
"FACILITY" has the meaning given in Recital A to this Agreement,
and is more fully described in Exhibit A attached hereto.
"FACILITY DEBT" means any loans or other amounts outstanding and
owed by Xxxx or any Affiliate of Xxxx under the Financing Documents.
"FACILITY LENDER" means any entity or entities providing debt
financing or refinancing to Xxxx or any Affiliate of Xxxx under the Financing
Documents in connection with the acquisition of the Facility.
"FACILITY OPERATING PROCEDURES" means the Facility Operating
Procedures and Operating Limitations attached hereto as Exhibit C.
"FACILITY SITE" means all real property upon which the Facility is
located, including all easements, rights-of-way and other real property used in
connection with the operation of the Facility.
"FACILITY UTILIZATION PLAN" has the meaning given in Section 6.5.
"FERC" means the Federal Energy Regulatory Commission or any
successor agency thereto.
"FINANCING DOCUMENT" means any loan or credit agreement and all
related collateral security documentation, if any, whether entered into
simultaneously with the acquisition of the Facility or thereafter, relating to
(a) any indebtedness of Xxxx, or (b) any indebtedness of any Affiliate of Xxxx,
secured by the assets of Xxxx or by which the assets of Xxxx may be encumbered,
in either case the proceeds of which, directly or indirectly, are used to
finance or refinance the acquisition of the Facility.
"FIRST TRIGGER" has the meaning given in Section 17.1.1.
"FIXED MARKET OUTPUT PAYMENT" means the payment to be made by CPS
to Xxxx pursuant to Section 11.1.1.
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"FORCED OUTAGE" means the removal of the Facility from service
under circumstances which do not constitute Scheduled Maintenance.
"FORCE MAJEURE" means any cause beyond the reasonable control of,
and not due to the fault or negligence of, the Party affected, and which could
not have been avoided by such Party's due diligence and use of reasonable
efforts, including drought, flood, earthquake, storm, fire, lightning,
epidemic, war, riot, civil disturbance, sabotage, strikes or labor disputes,
inability to obtain and maintain rights-of-way, permits, licenses and other
required authorizations or rights from any local, state or Federal Governmental
Authority or other person necessary to provide Market Output or other services
hereunder, actions or failures to act of Governmental Authorities, changes in
Law or regulations that affect performance under this Agreement.
"FUEL" has the meaning given in Recital A to this Agreement.
"FUEL CONVERSION SERVICES" means the operation of the Facility by
Xxxx to combust Gas and/or Fuel Oil delivered or caused to be delivered to the
Facility by CPS in order to generate and deliver at the applicable Delivery
Point Net Electric Energy and/or Market Steam, or to provide at the Delivery
Point Ancillary Services.
"FUEL METERING EQUIPMENT" means (a) with respect to Gas, Gas meters
and associated equipment utilized in determining the amount of Gas delivered to
and consumed by the Facility, and (b) with respect to Fuel Oil, Fuel Oil meters
at the Facility (or, in the absence of such meters, the process of measurement
by manually gauging the contents of the Facility's Fuel Oil storage tanks).
"FUEL OIL" means No. 2 low sulfur fuel oil meeting the
specifications set forth in Exhibit E attached hereto.
"GAS" means merchantable natural gas meeting the specifications set
forth in Exhibit E attached hereto.
"GAS TRANSPORTATION AGREEMENT" has the meaning given in Section
23.1(a).
"GOVERNMENTAL AUTHORITY" means any federal, state, local or
municipal governmental body; any governmental, regulatory or administrative
agency, commission, body or other authority exercising or entitled to exercise
any administrative, executive, judicial, legislative, policy, regulatory or
taxing authority or power; or any court or governmental tribunal.
"HAZARDOUS MATERIALS" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable,
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urea formaldehyde foam insulation, and transformers or other equipment that
contain dielectric fluid containing polychlorinated biphenyls ("PCBs"); (b) any
chemicals, materials or substances which are now or hereafter become defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "pollution," "pollutants,"
"regulated substances," or words of similar import, under any Laws pertaining
to the environment, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C. Section
1801 et seq.); the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 6901 et seq.); the Toxic Substances Control Act, as amended (42
U.S.C. Section 7401 et seq.); the Clean Air Act, as amended (42 U.S.C. Section
7401 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C.
Section 1251 et seq.); the New York Environmental Conservation Law (XxXxxxxx'x
1991); or in the regulations promulgated pursuant to said Laws; and (c) any
other chemical, material, substance or waste (i) which is declared to be
hazardous, toxic, or polluting material by any Governmental Authority, (ii)
exposure to which is now or hereafter prohibited, limited or regulated by any
Governmental Authority, (iii) the storage, use, handling, disposal or release
of which is restricted or regulated by any Governmental Authority, or (iv) for
which remediation or cleanup is required by any Governmental Authority
"HEAT RATE" means the amount of energy consumed by the Facility
expressed in Btu's (HHV) per KWh of output, determined in accordance with the
provisions of Exhibit F attached hereto.
"HOT START" means the Start-up of the Facility after its breakers
have been open for no more than the number of hours defining a Hot Start, as
set forth in the Facility Operating Procedures.
"INCREMENTAL STATION ELECTRIC AND GAS COSTS" has the meaning given
in Exhibit C.
"INDEMNITEE" has the meaning given in Section 12.5.
"INDEMNITOR" has the meaning given in Section 12.5.
"INSTALLED CAPACITY" means a generator or load facility complying
with the requirements of the Reliability Rules, that is accessible to the New
York State Transmission System and is capable of supplying and/or reducing
demand in the New York Control Area.
"INTERCONNECTION FACILITIES" means all structures, facilities,
equipment, auxiliary equipment, devices and apparatus directly or indirectly
required and installed
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to interconnect and deliver Market Output (including Net Electric Energy and
Market Steam) to the Delivery Point therefor, including electric transmission
and/or distribution lines, transformation and switching equipment, Output
Metering Equipment, any other metering equipment, and communications and safety
equipment, including equipment required to protect (i) the electrical system to
which the Facility is connected and its customers from faults occurring at the
Facility, and (ii) the Facility from faults occurring on the electrical system
to which the Facility is connected or on other electrical systems to which such
electrical system is directly or indirectly connected.
"KW" means kilowatt.
"KWH" means kilowatt-hour.
"LAW" means any applicable federal, state, local or other
constitution, charter, act, statute, law, ordinance, code, rule, regulation or
order, or specified standards or objective criteria or requirements contained
in any applicable permit or approval, or other legislative or administrative
action of any Governmental Authority, or final decree, judgment or order of a
court or arbitration panel, or mandatory engineering, construction, safety or
operating standard or code.
"LOSS" has the meaning given in Section 12.1.
"MARKET OUTPUT" has the meaning given in Recital D to this
Agreement and includes Net Electric Energy, Market Steam, Ancillary Services,
Installed Capacity and Operating Capacity.
"MARKET STEAM" has the meaning given in Section 6.4.1.
"MARKET STEAM REIMBURSABLE COSTS" has the meaning given in Section
11.1.4.
"MINIMUM GENERATION CAPACITY" means the minimum net MW output level
that the Facility is capable of producing on a stable, continuous basis
consistent with equipment operating limits, as set forth in the Facility
Operating Procedures.
"MINIMUM ON-PEAK DISPATCH AVAILABILITY" has the meaning given in
Section 5.3.
"MMBTU" means one million British Thermal Units.
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"MONTH" or "MONTH" means the period beginning at 12:01 a.m., local
time, on the first day of each calendar month and ending at the same hour on
the first day of the next succeeding calendar month.
"MW" means megawatt.
"MWH" means megawatt-hour.
"NERC" means the North American Electric Reliability Council.
"NET ELECTRIC ENERGY" means the amount of electric energy measured
in KWh, generated by the Facility and delivered to CPS at the applicable
Delivery Point.
"NIMO" means Niagara Mohawk Power Corporation.
"NEW YORK CONTROL AREA" means the control area located within New
York State which is under the control of the NY ISO.
"NEW YORK INDEPENDENT SYSTEM OPERATOR" or "NY ISO" means the New
York Independent System Operator, Inc., a not-for-profit corporation.
"NEW YORK POWER POOL" or "NYPP" means the organization established
pursuant to that certain New York Power Pool Agreement dated as of July 21,
1966, and amended as of July 16, 1991, by and among Central Xxxxxx Gas &
Electric Corporation, Consolidated Edison Company of New York, Inc., Long
Island Lighting Company, New York State Electric & Gas Corporation, NiMo,
Orange and Rockland Utilities, Inc., Rochester Gas and Electric Corporation,
and the Power Authority of the State of New York or successor thereto.
"NEW YORK STATE RELIABILITY COUNCIL" or "NYSRC" means an
organization established by agreement by and among NiMo, Central Xxxxxx Gas &
Electric Corporation, Consolidated Edison Company of New York, Inc., Long
Island Lighting Company, New York State Electric & Gas Corporation, the Power
Authority of the State of New York and others to maintain the reliability of
the New York State Power System.
"NEW YORK STATE POWER SYSTEM" means all facilities of the New York
State Transmission System and all those generators located within New York or
outside New York, which may from time-to-time be subject to operational control
by the NY ISO.
"NEW YORK STATE TRANSMISSION SYSTEM" means the entire New York
State electric transmission system, which includes: (a) the transmission
facilities under
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operational control by the NY ISO, (b) the transmission facilities requiring NY
ISO notification, and (c) all remaining transmission facilities within the New
York Control Area.
"OFF-PEAK" means, with respect to hours, each hour that is not an
On-Peak or Peak hour.
"ON-PEAK" or "PEAK" means, with respect to hours, each hour between
7:00 a.m. Prevailing Eastern Time and 11:00 p.m. Prevailing Eastern Time each
Monday through Friday, except for NERC-defined holidays.
"ON-PEAK DISPATCH AVAILABILITY" means, with respect to each month
during a Contract Year (excluding from such month any hours which are Scheduled
Maintenance Hours hereunder), the total number of On-Peak MWhrs delivered
during the month to CPS pursuant to the Agreement divided by the total number
of On-Peak MWhrs actually Dispatched by CPS during the month pursuant to
Section 6.1, expressed as a decimal.
"OPERATING CAPACITY" means the capacity of the Facility that may be
readily converted to Net Electric Energy and is measured in MW.
"OPERATION AND MAINTENANCE AGREEMENT" means the Operation and
Maintenance Agreement for the Facility, to be entered into on or about November
16, 1998, between Xxxx and COSI Xxxx St., Inc.
"OPERATOR" shall mean COSI Xxxx St., Inc. or any other operator
engaged by Xxxx to operate the Facility.
"OUTPUT METERING EQUIPMENT" means (a) with respect to Net Electric
Energy and Ancillary Services, electric meters and associated equipment,
metering transformers and meters for measuring kilowatts, kilowatt-hours and
reactive volt-ampere hours, utilized in determining the amount of Net Electric
Energy or Ancillary Services delivered or provided by Xxxx at the applicable
Delivery Point, and (b) with respect to Market Steam, the flow meters, pressure
compensators, temperature compensators, integrators and related equipment
utilized in determining the amount of Market Steam delivered by Xxxx at the
applicable Delivery Point.
"PARTY" or "PARTIES" means each or both, as the case may be, of
Xxxx and CPS, and their respective successors and permitted assignees
hereunder.
"PREVAILING EASTERN TIME" means the local time in East Syracuse,
New York.
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"PROTECTIVE APPARATUS" means (a) equipment and apparatus, including
protective electrical relays, circuit breakers and the like, necessary and
appropriate to isolate the Facility from the electric transmission and
distribution system to which it is connected, (b) the safety valves and
pressure and temperature protective devices necessary and appropriate to
protect the Facility steam systems and (c) the purge valves, relief valves,
fuel/air interlocks, and protective relays necessary and appropriate to protect
the Facility Fuel supply systems, with (a), (b) and (c) in each case being
consistent with Accepted Electrical Practices.
"RAMP RATE" means the rate at which the output of Net Electric
Energy or Market Steam from the Facility can be increased from minimum to
maximum, or decreased from maximum to minimum, as set forth in the Facility
Operating Procedures.
"RELEASE" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing, or
dumping into the Environment.
"RELIABILITY RULES" means those rules, standards, procedures and
protocols developed and promulgated from time to time by the New York State
Reliability Council, the NY1SO or other regulatory body.
"SCHEDULED MAINTENANCE" means the planned removal of the Facility
from service to perform work on specific components that is scheduled in
advance and has a predetermined start date and duration (e.g. annual overhaul,
inspections, testing, major maintenance and routine maintenance).
"SCHEDULED MAINTENANCE HOUR" means any hour allowed for Scheduled
Maintenance pursuant to the provisions of Section 5.1 and Exhibit B attached
hereto.
"SECOND TRIGGER" has the meaning given in Section 17.1.1.
"SHORTFALL" has the meaning given in Section 11.1.5(a).
"STANDBY PERIOD" has the meaning given in Exhibit C.
"START-UP" means the action of bringing the Facility from shutdown
to synchronization at its minimum load and the unconditional release of the
Facility for ramping to the requested scheduled Dispatch level.
"START-UP NOTIFICATION LEAD TIME" means the time period required by
Xxxx to permit Start-up of the Facility as scheduled for a Dispatch Period
under normal
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equipment conditions. Such period of time is initially set forth in the
Facility Operating Procedures and may be revised by mutual agreement of the
Parties from time to time to reflect actual operating experience.
"TAXES" means any or all federal, state and/or local, municipal, ad
valorem, property, occupation, severance, generation, first use, conversion,
Btu or power, transmission, utility, gross receipts, privilege, sales, use,
consumption, excise, lease, transaction, and other taxes, governmental charges,
license fees, permit fees, assessments, or increases in or interest on or
penalties relating to any of the foregoing, other than taxes based on net
income or net worth.
"TERM" has the meaning given in Article 3.0.
"TRANSMISSION PROVIDER" means any person providing transmission
services for Net Electric Energy or Market Steam from and after the Delivery
Point therefor.
"TRANSPORTER" means any pipeline on which any Gas is transported
pursuant to this Agreement to the applicable Delivery Point and any contractor
or supplier delivering Fuel Oil to the Facility.
"VARIABLE MARKET OUTPUT PAYMENT" means the payment to be made by
CPS to Xxxx pursuant to the provisions of Section 11.1.2.
"WARM START" means the Start-up of the Facility after its breakers
have been open for the number of hours defining a Warm Start for the Facility,
as set forth in the Facility Operating Procedures.
1.2 CONSTRUCTION OF TERMS. As used in this Agreement, the terms
"herein," "herewith" and "hereof" are references to this Agreement, taken as a
whole; the terms "include," "includes" and "including" shall mean "including,
but not limited to;" and references to a "Section," "subsection," "clause,"
"Article," "Exhibit," or "Schedule" shall mean a Section, subsection, clause,
Article, Exhibit, or Schedule of this Agreement (including all paragraphs and
provisions therein), as the case may be, unless in any such case the context
clearly requires otherwise. All references to a given agreement, instrument or
other document shall be a reference to that agreement, instrument or other
document as modified, amended, supplemented and restated through the date as of
which such reference is made, and reference to a Law includes any amendment of
modification thereof. A reference to a person includes its successors and
permitted assigns. The singular shall include the plural and the masculine
shall include the feminine, and vice versa. Words importing persons or parties
shall include firms, corporations, partnerships, limited liability companies,
and any other organization or entity having legal capacity.
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ARTICLE 2.0
CONTRACT DOCUMENTS
2.1 DOCUMENTS INCLUDED. This Agreement consists of this contract
document entitled "Capacity Sale and Tolling Agreement" (this "CONTRACT
Document") and each of the following Exhibits which are attached hereto and
which are specifically incorporated herein and made a part of this Agreement by
this reference:
Exhibit A - Description of Facility and Designation of
Delivery Points
Exhibit B - Allowances for Scheduled Maintenance
Exhibit C - Facility Operating Procedures and Operating
Limitations
Exhibit D - Form of Dispatch Notice
Exhibit E - Fuel Specifications
Exhibit F - Heat Rate Determination Procedures
Exhibit G - Insurance Requirements
2.2 CONFLICTING PROVISIONS. In the event of any conflict or
inconsistency between this Contract Document and any Exhibit hereto, the terms
and provisions of this Contract Document, as amended from time to time, shall
prevail and be given priority. Subject to the foregoing, the several documents
and instruments forming part of this Agreement are to be taken as mutually
explanatory of one another and in the case of ambiguities or discrepancies
within or between such parts the same shall be explained and interpreted, if
possible, in a manner which gives effect to each part and which avoids or
minimizes conflicts among such parts.
2.3 ENTIRE AGREEMENT AND AMENDMENTS. This Agreement sets forth the full
and complete understanding of the Parties relating to the subject matter hereof
as of the date of this Agreement, and supersedes any and all negotiations,
agreements, understandings and representations made or dated prior thereto with
respect to such subject matter. No change, amendment or modification of this
Agreement shall be valid or binding upon the Parties unless such change,
amendment or modification shall be in writing and duly executed by both
Parties.
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ARTICLE 3.0
TERM OF AGREEMENT
Subject to earlier termination in accordance with the provisions of this
Agreement, the term of the Agreement (the "TERM") shall commence, and the
Agreement shall become effective, upon the date (the "EFFECTIVE DATE") Xxxx
gives CPS written notice that Xxxx has satisfied, or caused to be satisfied,
all of the conditions precedent set forth in Section 23.1, and shall end at
11:59 p.m., Prevailing Eastern Time on the fifth (5th) anniversary of the
Effective Date; provided, however, that any obligations of the Parties arising
prior to the date and time of termination shall survive such termination. The
Term shall be subject to renewal or extension by mutual written agreement of
the Parties.
ARTICLE 4.0
PURCHASE AND SALE OF
CAPACITY AND SERVICES
4.1 CAPACITY. Subject to the terms and conditions of this Agreement,
during the Term, Xxxx shall sell and make available to CPS on an exclusive
basis, and CPS shall purchase and pay for, the Dependable Capacity of the
Facility.
4.2 SERVICES. Subject to the terms and conditions of this Agreement,
during the Term, Xxxx shall perform for CPS on an exclusive basis, and CPS
shall purchase and pay for, Fuel Conversion Services with respect to Fuel
supplied to the Facility by or on behalf of CPS.
4.3 EXCLUSIVE NATURE OF AGREEMENT. The relationship between Xxxx and
CPS with respect to the Facility, its Capacity and the Fuel Conversion Services
is intended to be exclusive. Xxxx shall not offer, sell or make available the
Facility's Capacity, perform Fuel Conversion Services, or Dispatch the Facility
to or for any person other than CPS or its successors or permitted assigns;
provided, however, that the use of Capacity and associated electric energy by
Xxxx for the station service needs of the Facility shall be permitted.
Notwithstanding the foregoing, Xxxx shall have no obligation to (a) sell or
make available to CPS any Capacity of the Facility in excess of the Facility's
Dependable Capacity, or (b) sell, make available or provide to or for CPS
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any Fuel Conversion Services or electric energy or other Market Output
associated with any Capacity of the Facility in excess of the Facility's
Dependable Capacity; provided, however, that Xxxx may not sell or otherwise
dispose of such excess to any third party.
ARTICLE 5.0
DEPENDABLE CAPACITY; AVAILABILITY
5.1 DEPENDABLE CAPACITY AND MAINTENANCE. Beginning on the Effective
Date, Xxxx shall make the Dependable Capacity of the Facility available to CPS,
subject to Scheduled Maintenance as set forth in Exhibit B attached hereto. The
Parties shall confer in advance, on a yearly basis, regarding Scheduled
Maintenance, following submission by CPS to Xxxx of its proposed Facility
Utilization Plan pursuant to Section 6.5, and the Parties shall agree on a
general Scheduled Maintenance program for the upcoming Contract Year. To the
extent practicable, Xxxx shall schedule and perform all Scheduled Maintenance
only during the months of April, May, October, November and December; provided,
however, that Xxxx, upon the written consent of CPS, not to be unreasonably
withheld, may reschedule and perform Scheduled Maintenance at any other time
if, in Xxxx'x opinion, such maintenance is required by Accepted Electrical
Practices. CPS may also request that Xxxx reschedule its Scheduled Maintenance
to an earlier or later period, and Xxxx agrees to comply with such request if
such rescheduling, in Xxxx'x opinion, will not adversely affect the operation
of the Facility or result in material additional cost to Xxxx. Additional
coordination and scheduling provisions with respect to Scheduled Maintenance
are set forth in the Facility Operating Procedures.
5.2 NO REDUCTION IN DEPENDABLE CAPACITY. Xxxx shall not permit the
Dependable Capacity of the Facility to be reduced during the Term.
5.3 GUARANTEED ON-PEAK DISPATCH AVAILABILITY. Xxxx hereby guarantees to
CPS that, with respect to each full calendar month of each Contract Year during
the Term, the On-Peak Dispatch Availability of the Facility during such month
shall be as follows:
Guaranteed On-Peak
Month Dispatch Availability
----- ---------------------
January .95
February .95
March .95
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April .90
May .90
June .98
July .98
August .98
September .98
October .90
November .90
December .90
The Parties agree that, except in the case of Force Majeure as provided in
Article 14.0, any failure of the Facility to meet the guarantee set forth above
for any calendar month (in each case, the "MINIMUM ON-PEAK DISPATCH
AVAILABILITY" for such calendar month) shall result in an adjustment to the
Fixed Market Output Payment for such month as set forth in Section 11.1.5. Such
adjustment to the Fixed Market Output Payment shall be the sole and exclusive
remedy of CPS for any failure of Xxxx to provide and make available the
Dependable Capacity of the Facility pursuant to this Agreement.
5.4 OFF-PEAK AVAILABILITY. Xxxx also agrees to use reasonable efforts
to Dispatch the Facility during Off-Peak periods in accordance with Section 6.1
upon receipt of a Dispatch Notice from CPS; provided, however, that Xxxx makes
no guarantees hereunder with respect to the availability, Heat Rate or any
other performance of the Facility during any such Off-Peak hours.
ARTICLE 6.0
DISPATCH
6.1 DISPATCH OF THE FACILITY BY CPS. Consistent with the operational
limits of the Facility as set forth in Exhibit C, CPS shall at all times during
the Term have the exclusive right (a) to Dispatch the Facility in order to
market the Market Output, (b) to utilize the Net Electric Energy, Ancillary
Services, Installed Capacity and Operating Capacity associated with the
Dependable Capacity, and (c) to market the Dependable Capacity and the
associated Installed Capacity, Operating Capacity, Net Electric Energy and
Ancillary Services, in each case subject to the terms and conditions of this
Agreement. For avoidance of doubt, the Parties understand and agree that CPS
may Dispatch the Facility at any time during On-Peak periods, except for
periods of allowed Scheduled Maintenance as set forth in Section 5.1 above and
periods of Force Majeure as set forth in Article 14.0, regardless of whether
the Facility is actually available at
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such time (including an unavailability due to Forced Outage). The operating
procedures relating to the Facility and the Dispatch and operation thereof are
set forth in Exhibit C, which may from time to time be amended in writing,
signed by the Parties, as necessary to ensure the efficient, safe and
competitive operation of the Facility. CPS shall Dispatch the Facility by means
of a Dispatch Notice issued to Xxxx by telefax in the form set forth in Exhibit
D attached hereto. A Dispatch Notice shall indicate (among other things) the
Capacity level(s) at which the Facility is to be Dispatched, which shall not
exceed the Dependable Capacity of the Facility, without the prior written
consent of Xxxx, and shall not be less than the Minimum Generation Capacity of
the Facility. Each such Dispatch Notice shall be effective upon receipt by Xxxx
and shall remain in effect until the delivery of a subsequent Dispatch Notice.
6.2 DISPATCH PERIOD AND START-UP. Where a Dispatch Period will involve
a Cold Start, Warm Start or Hot Start, CPS shall provide Xxxx with a Dispatch
Notice allowing at least the Start-Up Notification Lead Time required pursuant
to Exhibit C. When a Dispatch Period (including revisions to or extensions of a
previously scheduled Dispatch Period) does not involve a Cold Start, Warm Start
or Hot Start, CPS shall provide Xxxx with a Dispatch Notice in accordance with
the applicable procedures and timing requirements set forth in Exhibit C. After
a Cold Start, CPS shall be required to run the Facility for a minimum Dispatch
Period of two (2) hours, and after a Hot Start CPS shall be required to run the
Facility for a minimum Dispatch Period of one (1) hour.
6.3 ELECTRIC SPECIFICATIONS AND DELIVERY.
6.3.1 SPECIFICATIONS. The Net Electric Energy to be delivered by
Xxxx under this Agreement shall be at 115,000 volts, 60 hertz and at a power
factor consistent with the Dispatch Notice, shall not adversely affect the
voltage, frequency, waveshape or power factor of power at the Delivery Point,
and shall be delivered at the Delivery Point in a manner acceptable to the
Transmission Provider. Xxxx shall install, own and operate at its expense, or
cause to be installed, owned and operated, all Interconnection Facilities on
its side of the applicable Delivery Point necessary for the delivery of Net
Electric Energy and other Market Output hereunder.
6.3.2 RECEIPT. CPS shall receive all Net Electric Energy, Ancillary
Services and other Market Output provided under this Agreement at the
applicable Delivery Point and shall be solely responsible for all transmission
arrangements (including control area services), marketing arrangements, and
associated costs and losses from and after the Delivery Point.
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6.4. STEAM PRODUCTION.
6.4.1 FUEL CONVERSION TO STEAM. Subject to the applicable Start-Up
Notification Lead Time set forth in Exhibit C, CPS may also require Xxxx, from
time to time, to produce steam as part of the Market Output of the Facility in
an amount not to exceed 80,000 lbs. per hour (the "MARKET STEAM"). Operating
procedures relating to the production of Market Steam at the Facility and the
utilization thereof as part of the Market Output are set forth in Exhibit C.
Market Steam shall meet the specifications provided in Exhibit C and shall be
delivered by Xxxx at the applicable Delivery Point in a manner acceptable to
the Transmission Provider. Xxxx shall install, own and operate, at its expense,
or cause to be installed, owned and operated, all Interconnection Facilities on
its side of the applicable Delivery Point necessary for the delivery of Market
Steam hereunder.
6.4.2. RECEIPT OF STEAM. CPS shall receive all Market Steam at the
applicable Delivery Point and shall be solely responsible for all transmission
and delivery arrangements, marketing arrangements, and associated costs and
losses from and after the Delivery Point.
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6.5 FACILITY UTILIZATION PLAN. Prior to the Effective Date with respect
to the first Contract Year and at least one hundred twenty (120) days before
the start of each Contract Year thereafter, CPS shall prepare and submit to
Xxxx a proposed annual utilization plan for the Facility (the "FACILITY
UTILIZATION Plan") covering, on a monthly basis, the forecasted utilization and
Dispatch of the Facility by CPS during the upcoming Contract Year. Following
such submission, the Parties shall meet and confer with respect to the
operational requirements of the proposed Facility Utilization Plan, and Xxxx
shall prepare and submit its proposed Scheduled Maintenance program for the
upcoming Contract Year as set forth in Section 5.1 above. Thereafter, on a
monthly basis during each Contract Year, on or before the fifteenth (15th) day
of each calendar month, CPS shall provide a monthly update of the Facility
Utilization Plan for the Contract Year, covering the next succeeding calendar
month and any changes in the forecasted utilization and Dispatch of the
Facility over the balance of the Contract Year. During the winter months of
December through March, CPS shall also provide, at Xxxx'x request, weekly
updates of the Facility Utilization Plan covering the next succeeding two
(2)-week period. It is understood and agreed, however, that the Facility
Utilization Plan shall be for general informational and forecasting purposes
only and that the Dispatch rights of CPS hereunder shall not be limited by the
forecasts set forth therein.
ARTICLE 7.0
FUEL AND HEAT RATE
7.1 GAS.
7.1.1 DELIVERY. Except to the extent Fuel Oil is utilized to
operate the Facility as set forth in Section 7.2 below, CPS, at its expense,
shall deliver or cause to be delivered to Xxxx at the applicable Delivery
Point, beginning on the Effective Date, all quantities of Gas required by Xxxx
(a) to generate Net Electric Energy and Market Steam and provide Ancillary
Services and other Market Output during the Term, and (b) to perform Cold
Starts, Warm Starts, and Hot Starts in response to any Dispatch Notice issued
by CPS. CPS shall deliver, or cause to be delivered , Gas hereunder at the
applicable Delivery Point at the pressures in effect from time to time in the
pipeline of CPS's Transporter. CPS shall be responsible for and bear all costs
and expenses related to the scheduling of Gas deliveries hereunder and the
transportation of all Gas to the Delivery Point.
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7.1.2 SPECIFICATION AND QUALITY. All Gas delivered or caused to be
delivered by CPS pursuant to Section 7.1.1 shall be of merchantable quality and
shall meet the Fuel specification set forth in Exhibit X. Xxxx shall have the
right (to be exercised consistently with Accepted Electrical Practices) to
reject Gas that does not meet such Fuel specification at the Delivery Point.
7.1.3 MEASUREMENT. Measurement of Gas quantities hereunder shall be
in accordance with the established procedures of the delivering Transporter at
the Delivery Point. The unit of Gas quantity measurement for purposes of this
Agreement shall be one million Btu (1 MM Btu).
7.2 FUEL OIL.
7.2.1 DELIVERY. Beginning on the Effective Date, CPS may, at its
election, procure at its own cost Fuel Oil for the Facility and may supply and
deliver, or caused to be supplied and delivered, Fuel Oil by truck to Xxxx at
the applicable Delivery Point for use by Xxxx as a secondary fuel for the
operation of the Facility. Xxxx shall have responsibility for the maintenance
and safe storage of the Fuel Oil after its receipt at the Delivery Point;
provided that, with respect to deterioration in the quality of Fuel Oil, Xxxx
shall take reasonable measures to mitigate such deterioration for the first
twelve (12) months after delivery of the Fuel Oil to the Facility and shall
only be responsible for deterioration to the extent caused by Xxxx'x failure to
take such reasonable measures during such twelve (12)-month period (all
deterioration thereafter being the sole risk of CPS). CPS may direct Xxxx to
utilize Fuel Oil to operate the Facility to the extent permitted under Xxxx'x
existing permits for the Facility. CPS shall also have the option to sell the
Fuel Oil to third parties and to remove the Fuel Oil from the Facility Site.
Xxxx shall provide CPS with a monthly Fuel Oil inventory report, and will
report daily use to CPS when directed by CPS to utilize Fuel Oil to operate the
Facility.
7.2.2 SPECIFICATION AND QUALITY. All Fuel Oil delivered or caused
to be delivered by CPS pursuant to Section 7.2.1 shall be of merchantable
quality and shall meet the Fuel specification set forth in Exhibit X. Xxxx
shall have the right (to be exercised consistently with Accepted Electrical
Practices) to reject Fuel Oil that does not meet such Fuel specification at the
Delivery Point, and CPS, at its expense, shall remove or cause to be removed
such Fuel Oil from the Facility Site. Xxxx shall bear all costs related to its
wrongful rejection of Fuel Oil.
7.2.3 MEASUREMENT. Measurement of Fuel Oil quantities hereunder
shall be in accordance with the established procedures of the delivering
Transporter at the Delivery Point. The unit of Fuel Oil measurement for
purposes of this Agreement shall be U.S. gallons.
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7.3 ANNUAL HEAT RATE GUARANTEE.
7.3.1 ANNUAL AVERAGE HEAT RATE. Xxxx hereby guarantees to CPS that,
with respect to each Contract Year during the Term, the annual average Heat
Rate of the Facility during On-Peak hours utilizing Gas supplied by CPS
pursuant to Section 7.1 above (the "ANNUAL HEAT RATE") shall not exceed 250
Btu/KWh, measured and calculated in the manner set forth in Exhibit F attached
hereto, and subject to adjustment as provided in Exhibit F (the "ANNUAL HEAT
RATE GUARANTEE"). Within thirty (30) days following the close of each Contract
Year, Xxxx shall determine the Annual Heat Rate for the immediately preceding
Contract Year in accordance with Exhibit F and shall submit such determination
in writing to CPS, together with such back-up and supporting information as CPS
may reasonably request. Such annual determination by Xxxx shall be deemed to be
final and binding on the Parties for purposes of this Agreement, unless it is
disputed in writing by CPS within ten (10) days following the receipt thereof.
7.3.2 REMEDY FOR FAILURE TO ACHIEVE ANNUAL HEAT RATE GUARANTEE. As
the sole and exclusive remedy of CPS for any failure of the Facility to meet or
better the Annual Heat Rate Guarantee with respect to any Contract Year, Xxxx
shall pay CPS (subject to the limitations set forth in Section 16.1(a) and
Section 16.2) a lumpsum amount for excess Gas or Fuel Oil utilized by the
Facility during the Contract Year as determined in accordance with the
provisions of Exhibit F. Such amount shall be payable by Xxxx within twenty
(20) days following the date the applicable determination of Annual Heat Rate
submitted by Xxxx pursuant to Section 7.3.1 becomes final and binding, or
within thirty (30) days following the date the Annual Heat Rate is otherwise
determined pursuant to Article 17.0, whichever is applicable, and may be offset
by CPS against any amounts due or to become due to Xxxx hereunder.
7.3.3 ANNUAL HEAT RATE BONUS. As additional compensation to Xxxx
for Fuel Conversion Services performed under the Agreement in the event that
the Annual Heat Rate with respect to any Contract Year is better than the
Annual Heat Rate Guarantee, CPS shall pay to Xxxx an amount representing the
Fuel savings enjoyed by CPS during the Contract Year, as determined in
accordance with the provisions of Exhibit F. Such amount shall be payable by
CPS within twenty (20) days following the date the applicable determination of
Annual Heat Rate submitted by Xxxx pursuant to Section 7.3.1. becomes final and
binding, or within thirty (30) days following the date the Annual Heat Rate is
otherwise determined pursuant to Article 17.0, whichever is applicable.
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ARTICLE 8.0
TITLE AND RISK OF LOSS
8.1 TITLE TO FUEL. CPS at all times shall retain title to all
quantities of Fuel delivered to the Facility pursuant to Section 7.1 and
Section 7.2; provided, however, that title to any unused Fuel Oil remaining in
storage at the Facility Site upon the expiration or other termination of the
Agreement shall automatically pass to and vest in Xxxx, without cost or expense
to Xxxx, if CPS has not sold or otherwise disposed of and removed the Fuel Oil
from the Facility Site within sixty (60) days following such expiration or
other termination.
8.2 RISK OF LOSS AND INDEMNITY.
8.2.1 GENERAL. Without regard to title as provided in Section 8.1
above, as between the Parties, CPS shall be deemed to be in exclusive
possession and control (and be responsible for any damage or injury resulting
therefrom or caused thereby) of Fuel prior to the Delivery Point therefor and
of Net Electric Energy, Market Steam and other Market Output at and after the
Delivery Point therefor, and Xxxx shall be deemed to be in exclusive possession
and control (and be responsible for any damage or injury resulting therefrom or
caused thereby) of Fuel at and from the Delivery Point therefor and of Net
Electric Energy, Market Steam and other Market Output prior to the Delivery
Point therefor. Risk of loss related to Fuel shall transfer from CPS to Xxxx at
the Delivery Point therefor and risk of loss related to Net Electric Energy,
Market Steam and other Market Output shall transfer from Xxxx to CPS at the
Delivery Point therefor. CPS shall indemnify, defend and hold harmless Xxxx
from and against any liability arising out of or in any way relating to CPS's
possession or control of Fuel up to the Delivery Point therefor or its
possession and control of Net Electric Energy, Market Steam and other Market
Output at and after the Delivery Point therefor, and Xxxx shall indemnify,
defend and hold harmless CPS from and against any liability arising out of or
in any way relating to Xxxx'x possession or control of Fuel at and from the
Delivery Point therefor or its possession and control of Net Electric Energy,
Market Steam and other Market Output prior to the Delivery Point therefor.
8.2.2 RISK OF NON-CONFORMING FUEL. Notwithstanding the provisions
of Section 8.2.1 above or any other provision of this Agreement to the
contrary, CPS shall remain responsible for, and shall indemnify, defend and
hold harmless Xxxx with respect to, any and all injury or damage, including
damage to the Facility, caused by the failure of any Gas delivered to the
Facility pursuant to Section 7.1 to conform to the specifications set forth in
Section 7.1.2 and in Exhibit E or by the failure of any Fuel
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Oil delivered to the Facility pursuant to Section 7.2 to conform to the
specifications set forth in Section 7.2.2 and in Exhibit E.
ARTICLE 9.0
METERING
9.1 OUTPUT METERING EQUIPMENT.
9.1.1 INSTALLATION AND OWNERSHIP. Net Electric Energy, Market Steam
and other Market Output of the Facility shall be metered at the Delivery Point
therefor by Output Metering Equipment installed, owned, operated and maintained
by Xxxx. The Output Metering Equipment shall be used to determine conclusively,
subject to Section 9.5, the amount of Market Output delivered by Xxxx at the
Delivery Point.
9.1.2 MAINTENANCE ETC. Xxxx shall be responsible for the
maintenance, testing and calibration in accordance with Accepted Electrical
Practices of the Output Metering Equipment and the maintenance and testing of
electrical facilities and Protective Apparatus necessary to interconnect the
Facility at the relevant Delivery Points. CPS shall have the right to receive
data in electronic form in real time on a continuous basis from the Facility,
and Xxxx shall install at the Facility Output Metering Equipment which is
capable of providing such data to CPS. Such installation shall be completed and
the delivery of such data shall be commenced as promptly as possible after the
Effective Date, but in no event later than four (4) months after the Effective
Date. Xxxx shall bear all costs and expenses of installing, maintaining and
testing all Output Metering Equipment, and CPS shall bear the costs of the
delivery and communication to CPS of data from such meters.
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9.2 FUEL METERING EQUIPMENT.
9.2.1 INSTALLATION AND OWNERSHIP. Gas delivered by CPS to the
Facility shall be metered at the Delivery Point therefor by Fuel Metering
Equipment installed, owned, operated and maintained by NiMo. Except as
otherwise provided herein, such Fuel Metering Equipment shall be used to
determine conclusively the quantity of Gas delivered at the Delivery Point. The
Btu content of the Gas delivered by CPS shall be determined by NiMo by use of a
gas chromatograph located in NiMo's Zone 5. If either Party is not satisfied
for any reason with the Btu content measurements made by NiMo, Xxxx shall
install, or cause to be installed, a gas chromatograph at the Delivery Point,
and the costs thereof shall be shared equally by the Parties. The quantity of
Fuel Oil delivered by CPS to the Facility shall be determined by the Facility's
operating personnel by gauging the Facility's Fuel Oil storage tanks after
delivery. The quality of Fuel Oil deliveries shall be determined from a sample
taken from the Fuel Oil delivery truck and analyzed, at CPS's expense, by an
independent laboratory.
9.2.2 MAINTENANCE ETC. Xxxx shall be responsible for the
maintenance, testing and calibration, in accordance with applicable industry
standards, of the Fuel Metering Equipment (to the extent not otherwise
installed, maintained, tested and calibrated by the Transporter thereof). CPS
shall have the right to receive data in electronic form in real time on a
continuous basis from the Delivery Point for Gas, and Xxxx shall install at the
Facility Fuel Metering Equipment which is capable of providing such data to
CPS. Such installation shall be completed and the delivery of such data shall
be commenced as promptly as possible after the Effective Date, but in no event
later than four (4) months after the Effective Date. Xxxx shall bear all costs
and expenses of installing, maintaining and testing all Fuel Metering Equipment
(except to the extent such costs and expenses are borne by the Transporter(s)
of Fuel and except as otherwise expressly provided in Section 9.2.1), and CPS
shall bear the costs of the delivery and communication to CPS of data from such
meters.
9.3 CHECK METERS. CPS, at its option and expense, may install and
operate one or more check meters to check Xxxx'x meters. Such check meters
shall be for check purposes only and shall not be used for the measurement of
Fuel or Market Output for purposes of this Agreement, except as provided in
Section 9.5 below. The check meters shall be subject at all reasonable times to
inspection and examination by Xxxx or its designee. The installation, operation
and maintenance thereof, however, shall be performed entirely by CPS in
accordance with applicable industry standards. Xxxx shall xxxxx to CPS, at no
cost or expense, the right to install such check meters at each Delivery Point
and the right to access such check meters at reasonable times as requested by
CPS, if such check meters are located on Xxxx'x premises.
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9.4 ACCESS. To the extent such metering equipment is owned and
maintained by Xxxx, CPS shall have the right to receive reasonable advance
notice with respect to, and to be present at the time of, any installation,
repairing, inspection, testing, calibrating or adjusting of the Output Metering
Equipment or Fuel Metering Equipment. All records from such Output Metering
Equipment and Fuel Metering Equipment shall be the property of Xxxx, but upon
reasonable advance notice and during normal business hours, Xxxx shall make
available to CPS all data, records and charts relating to the Output Metering
Equipment and Fuel Metering Equipment for inspection and verification. Xxxx
shall also keep and maintain, for a period of two (2) years or longer (if
required by Law), accurate and detailed records relating to the Facility's
hourly deliveries of Market Output and Fuel consumption, which records shall be
available for inspection by CPS and its designees during normal business hours
upon reasonable notice.
9.5 TESTING AND ADJUSTMENT. At its sole cost and expense, Xxxx shall
inspect and calibrate, or cause to be inspected and calibrated, all Output
Metering Equipment and Fuel Metering Equipment periodically, but not less
frequently than annually. If any such test shows a measurement error of more
than (a) two percent (2%) or such lower percentage as may be established by
applicable tariff, in the case of Fuel Metering Equipment or Output Metering
Equipment measuring Market Steam, or (b) one-quarter percent (1/4%) in the case
of other Output Metering Equipment, a retroactive correction shall be made for
the period during which the measurement instruments were in error, by using
CPS's check meter(s) if installed and registering accurately. If no such check
meters are installed and registering accurately, or if the period of error
cannot be reasonably ascertained, correction shall be made for one-half (1/2)
of the period elapsed since the last test date, and, in any such case, the
measuring instruments shall be adjusted immediately at Xxxx'x expense so as to
measure accurately.
ARTICLE 10.0
OPERATION AND MAINTENANCE
10.1 OPERATION AND MAINTENANCE OBLIGATION. At all times during the Term,
Xxxx shall be responsible for the testing, operation and maintenance of the
Facility and (except as otherwise expressly provided in Section 11.1.4) shall
bear all costs and expenses incurred in connection therewith, including the
cost of labor, parts, supplies, insurance and applicable taxes. The cost of
testing to be borne by Xxxx shall include any net cost of Fuel consumed during
testing, after crediting to CPS any revenues received from operation of the
Facility during the test period. Such testing, operation
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and maintenance shall be performed in accordance with Accepted Electrical
Practices, applicable Law, and the regulations, standards and guidelines
adopted from time to time by the NYPP and/or NY ISO. Xxxx shall have full and
complete control over the Facility at all times, subject to the rights and
remedies of CPS under this Agreement, and Xxxx shall be entitled at any time
and from time to time to suspend operation of the Facility or temporarily
disconnect the Facility from the Interconnection Facilities whenever and for
such periods of time as, in accordance with Accepted Electrical Practices, may
be necessary for emergency, reliability, environmental, or safety reasons.
10.2 OUTAGES. Notice, coordination, reporting and related requirements
with respect to Forced Outages and Scheduled Maintenance Outages occurring at
the Facility are set forth in the Facility Operating Procedures attached hereto
as Exhibit C.
10.3 ACCESS. During the Term, CPS and its representatives shall have
accompanied access to the Facility at all reasonable times in order (a) to
verify, review and/or monitor the operation of the Facility and all appurtenant
electrical and steam equipment for the purpose of determining Xxxx'x compliance
with this Agreement, and (b) to inspect, examine and test equipment and
facilities as authorized under this Agreement. Such access shall be subject to
compliance by CPS and its representatives with Xxxx'x safety and security
requirements, and CPS and its representatives shall at all times conduct
themselves so as not to hamper or impede the Facility's operations.
10.4 MAINTENANCE OF RECORDS. Xxxx shall keep and maintain at the
Facility (and shall retain for a minimum of five (5) years) accurate and
complete operating records and logs in a manner consistent with Accepted
Electrical Practices and as required by applicable Law and the regulations,
standards and guidelines adopted from time to time by the NYPP, NYSRC and/or NY
ISO. Such records shall include Market Output, Heat Rate, and Dispatch
information. Xxxx shall make such records and logs available to CPS on a
real-time basis as specified in the Facility Operating Procedures, and also for
inspection and copying at the Facility, during normal business hours upon
reasonable notice. Xxxx shall give notice to CPS prior to discarding any
records and logs and CPS may, within thirty (30) days of such notice, elect to
take possession of such records and logs, in which event Xxxx shall deliver
such records and logs to CPS, at the expense of CPS. If CPS does not respond to
such notice within thirty (30) days, Xxxx may discard such records and logs.
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ARTICLE 11.0
PRICE AND PAYMENT
11.1 CONTRACT PRICE. As compensation in full to Xxxx for the Dependable
Capacity made available to CPS hereunder and for the Fuel Conversion Services
performed by Xxxx, CPS shall pay Xxxx (in addition to any applicable annual
Heat Rate bonus earned by Xxxx pursuant to Section 7.3.3 above) for the Term of
the Agreement the Fixed Market Output Payment, the Variable Market Output
Payment, the Additional Start-up Fee, and the Market Steam Reimbursable Costs
as set forth below. Such amounts shall be invoiced by Xxxx and paid by CPS on a
monthly and semi-annual basis as provided in Section 11.2.
11.1.1 FIXED MARKET OUTPUT PAYMENT. The Fixed Market Output Payment
with respect to each calendar month of the Contract Year (prorated on a daily
basis for any portion of a calendar month for the first calendar month of the
first Contract Year and for the last calendar month of the last Contract Year)
shall be Two Hundred Ninety One Thousand Six Hundred Sixty-Seven Dollars
($291,667), subject to adjustment at the end of the 1999 Contract Year and at
the end of each subsequent Contract Year as follows:
Adjusted Fixed Market Output Payment = Current Fixed Market
Output Payment (at the end of the Contract Year) x 1.025
11.1.2 VARIABLE MARKET OUTPUT PAYMENT. The Variable Market Output
Payment with respect to each calendar month of the Contract Year shall be Three
Dollars ($3) per MWh of Net Electric Energy generated by the Facility during
such month, subject to adjustment at the end of the 1999 Contract Year and at
the end of each subsequent Contract Year as follows:
Adjusted Variable Market Output Payment = Current Variable
Market Output Payment (at the end of the Contract Year) x 1.025
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11.1.3 ADDITIONAL START-UP FEE. For each twelve (12) month period
during the Term, CPS shall be allowed, without additional charge, one (1)
Start-up per day, five (5) Start-ups per week, and one hundred twenty (120)
Start-ups annually (prorated on a daily basis for any period of less than
twelve (12) months at the start and end of the Term). The Additional Start-up
Fee with respect to daily, weekly or annual Start-ups occurring for any reason
in excess of such allowed amounts shall be Two Thousand Five Hundred Dollars
($2,500) per Start-up, subject to adjustment at the end of the 1999 Contract
Year and at the end of each subsequent Contract Year as follows:
Adjusted Additional Start-up Fee = Current Additional Start-up Fee
(at the end of the Contract Year) x 1.025
11.1.4 MARKET STEAM REIMBURSABLE COSTS. In the event the Facility
is utilized by CPS to produce Market Steam as provided in Section 6.4, CPS
shall reimburse Xxxx, on a direct cost basis, for all reasonable additional
expenses incurred by Xxxx in producing such Market Steam, including the cost of
make-up water, water treatment and purification, boiler and reboiler chemicals,
steam delivery, and incremental steam pipe, valve and reboiler maintenance (the
"MARKET STEAM REIMBURSABLE COSTS"). The Market Steam Reimbursable Costs shall
be incurred by Xxxx in accordance with Accepted Electrical Practices, shall be
calculated in accordance with the cost accounting provisions of Xxxx'x
Operation and Maintenance Agreement, and shall be determined by Xxxx on a
monthly basis during the Contract Year.
11.1.5 AVAILABILITY ADJUSTMENT TO FIXED MARKET OUTPUT PAYMENT.
Notwithstanding the provisions of Section 11.1.1 above, the Fixed Market Output
Payment shall be subject to reduction each month during the Term on the basis
of the actual On-Peak Dispatch Availability of the Facility during such month
(the "AVAILABILITY ADJUSTMENT"). Except as otherwise expressly provided in
Section 15.2 below, the Availability Adjustment, if any, for each month of the
Contract Year shall be computed as follows:
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(a) For Months Other Than July and August: If the actual
On-Peak Dispatch Availability of the Facility during
any month other than July and August is less than the
Minimum On-Peak Dispatch Availability for such month as
set forth in Section 5.3 above (the difference being
expressed as a decimal and referred to herein as a
"SHORTFALL"), then the Fixed Market Output Payment for
such month shall be reduced as follows:
R = FMO - (FMO x (S x AF))
Where:
R = The reduced monthly Fixed Market Output
Payment
FMO = Current monthly Fixed Market Output Payment
S = The monthly Shortfall
AF = An Adjustment Factor as set out in the
table below; provided that if the Shortfall
exceeds 0.50, the Shortfall multiplied by
the Adjustment Factor (i.e. (S x AF)) shall
be deemed to equal 1.00.
Adjustment
Shortfall Factor
--------- ----------
0 - .05 0.5
>.05 - .10 0.8
Adjustment
Shortfall Factor
--------- ----------
>.10 - .15 1.0
>.15 - .20 1.2
>.20 - .25 1.5
>.25 - .30 1.6
>.30 - .35 1.7
>.35 - .40 1.8
>.40 - .45 1.9
>.45 - .50 2.0
(b) For the Months of July and August: If the actual
On-Peak Dispatch Availability of the Facility during
July or August
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is less than the Minimum On-Peak Dispatch Availability
for such month as set forth in Section 5.3 above, then
the Fixed Monthly Output Payment for such month shall
be reduced as follows:
R = FMO - (S x (DMWhrs x $37.88/MWhr))
Where:
DMWhrs = The total On-Peak MWhrs actually
sought to be Dispatched by CPS during
the month as documented by duly
issued Dispatch Notices
Notwithstanding the foregoing or any other provision in this Agreement to the
contrary, the Availability Adjustment provided herein shall not apply with
respect to any Shortfall caused by an event of Force Majeure as set forth in
Article 14.0.
11.2 INVOICING AND PAYMENT.
11.2.1 MONTHLY AND SEMI-ANNUAL STATEMENTS. The Variable Market
Output Payment, the Additional Start-Up Fee, the Market Steam Reimbursable
Costs and Incremental Station Electric and Gas Costs shall be payable on a
monthly basis in arrears during the Term, and the Fixed Market Output Payment
shall be payable semi-annually in advance on or before January 1st and July 1st
of each year (except for the first payment of Fixed Market Output Payment as
set forth below). The Availability Adjustment, if any, to the Fixed Market
Output Payment shall be determined at the end of each month and either refunded
by Xxxx after the end of the month or offset by CPS against the next or
succeeding months' payments becoming due hereunder. On or before the tenth
(10th) day of each month, Xxxx shall provide CPS a monthly statement
(electronically, or by regular mail, facsimile or other acceptable means) in
respect of the immediately preceding month, which statement shall include a
designation of the amount of Net Electric Energy delivered by Xxxx to CPS in
each hour of the month, the quantities of Gas consumed in each hour, the number
of Start-ups requested and accomplished, the Market Steam Reimbursable Costs
incurred by Xxxx during the month, the Availability Adjustment, if any, for the
month, and such other data and information as may be necessary to determine the
amounts payable by CPS hereunder. Such statement shall be accompanied by any
supporting documentation and other information reasonably requested by CPS to
determine the accuracy of the statement. In addition, on or before June 15th
and December 16th of each year, Xxxx shall provide CPS a semi-annual statement
of Fixed Market Output Payments payable in respect of the next six (6)-month
period beginning on the start of the following month; provided, however, that
the first such semi-annual statement shall be submitted by Xxxx on or
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before the Effective Date and apply only to the period beginning on the
Effective Date and ending on December 31, 1998, and the final such semi-annual
statement shall be submitted by Xxxx on or before June 15th or December 16th,
as the case may be, of the last Contract Year hereunder and apply only to the
period beginning on the start of the following month and ending on the
expiration or other termination date.
11.2.2 PAYMENT. Subject to the last two sentences of this Section
11.2.2, within thirty (30) days following the date CPS receives each statement
under Section 11.2.1, CPS shall pay or cause to be paid to Xxxx the full
undisputed amount specified therein. Notwithstanding the foregoing, the first
semi-annual installment of Fixed Market Output Payments shall be payable by CPS
on or before the Effective Date. All such payments shall be made by wire
transfer of immediately available funds to the account of Xxxx at such
depository as Xxxx shall designate by written notice to CPS. If requested by
Xxxx in its monthly or semi-annual statement, CPS shall confirm to Xxxx the
amount of payment, the paying bank and the account to be credited not later
than two (2) days before payment. If the payment due date falls on a Saturday
or a local bank holiday in [New York City] other than a Monday, payment shall
be due on the preceding local banking date. If the payment due date falls on a
Sunday or a Monday local banking holiday, payment shall be due on the next
succeeding local banking day.
11.2.3 LATE PAYMENTS AND DISPUTED INVOICES. If there is a dispute
about any amount invoiced by Xxxx, the amount not in dispute shall be promptly
paid by CPS as provided in Section 11.2.2 above, and any disputed amount which
is ultimately determined to have been payable shall be paid within ten (10)
days following such determination, together with interest from the date the
amount was originally payable to and including the date of payment in
accordance with the provisions of Section 11.2.4. Any dispute which is not
promptly resolved by mutual agreement of the Parties shall be resolved in
accordance with the provisions of Article 17.0.
11.2.4 INTEREST. Amounts not paid by either Party to the other when
due under any provision of this Agreement, including the provisions of this
Section 11.2, shall bear interest, from the date payment was due to and
including the date of payment, at the Delayed Payment Rate.
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11.3 ADJUSTMENTS AND AUDIT.
11.3.1 ADJUSTMENT. In the event adjustments or corrections to
monthly or semi-annual statements are required as a result of inaccurate Output
Metering Equipment or Fuel Metering Equipment or other errors in computation or
billing, the Parties shall promptly recompute amounts due from or to each other
hereunder during the period of inaccuracy and otherwise correct any errors in
such statement(s). If the total amount, as recomputed, due from a Party for the
period of inaccuracy varies from the total amount due as previously computed,
and payment of such previously computed amount has been made, the difference
shall be promptly paid to the Party entitled to it, or offset by the Party
entitled to it against subsequent payments due or to become due to the other
Party.
11.3.2 AUDIT. Each Party and its representatives shall have the
right, at its sole expense, upon reasonable notice and during normal working
hours, to examine the records of the other Party to the extent reasonably
necessary to verify the accuracy of any statement, charge or computation made
pursuant to this Agreement. If requested, a Party shall provide to the other
Party statements evidencing the amounts of Net Electric Energy and/or Market
Steam, or the quantities of Gas or Fuel Oil delivered at the applicable
Delivery Point, and Xxxx shall provide CPS statements and accounts of all
Market Steam Reimbursable Costs incurred hereunder. If any such examination
reveals any inaccuracy in any statement, the necessary adjustments in such
statement and the payments thereof shall be promptly made and shall bear
interest calculated at the Delayed Payment Rate from the date the overpayment
or underpayment was made until paid; provided, however, that no adjustment of
any statement or payment shall be made unless objection to the accuracy thereof
is made prior to the lapse of two (2) years from the date of the statement; and
provided further that this Section 11.3.2 shall survive any expiration or other
termination of the Agreement for a period of two (2) years from the date of
such termination for the purpose of such statement and payment objections.
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ARTICLE 12.0
INDEMNITIES
12.1 GENERAL INDEMNITY. To the fullest extent permitted by Law, each
Party shall defend, indemnify and hold harmless the other Party, its
Affiliates, partners, shareholders, directors, officers, agents and employees
from and against all loss, liability, damage, cost and expense, including
damage and liability for bodily injury to or death of third persons or damage
to property of third persons, and including court costs and reasonable
attorneys' fees (collectively, "LOSS"), to the extent arising out of, in
connection with or resulting from (a) the indemnifying Party's breach of any of
the representations or warranties made in, or the indemnifying Party's failure
to perform any of its obligations under, this Agreement, (b) the indemnifying
Party's violation of any applicable Law in connection with its performance
hereunder, or (c) the indemnifying Party's design, installation, construction,
ownership, operation, repair, relocation, replacement, removal or maintenance
of, or the failure of, any of such Party's equipment and/or facilities,
including the Facility, and any Gas or Fuel Oil facilities, and/or any
appurtenances thereto, and any electric transmission or steam facilities used
in connection with this Agreement; provided, however, that neither Party shall
have any indemnification obligations hereunder or under Section 12.4 below in
respect of any Loss to the extent caused by an indemnified person's fault or
negligence. Each Party's indemnification obligation hereunder shall include
full indemnification from any of the foregoing to the extent the Loss arises
from the acts or omissions of, or installation, ownership, operation or
maintenance of facilities or equipment by, a contractor, supplier, Transporter
or customer of the indemnifying Party, or any of their contractors, suppliers,
Transporters or customers.
12.2 EMPLOYEE CLAIMS. With respect to any and all claims against an
indemnified Party by an employee of the indemnifying Party or of anyone for
whom the indemnifying Party is responsible hereunder, the indemnification
obligation stated in Section 12.1 shall not be limited in any way by any
limitation on the amount or type of damages, compensation or benefits payable
by or for such person under any applicable worker's compensation Law,
disability Law, or other employee benefit Law.
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12.3 TAXES.
12.3.1 CPS TAXES. The compensation paid by CPS to Xxxx pursuant to
Article 11.0 does not include reimbursement for, and CPS shall be solely liable
for and shall pay, cause to be paid, or reimburse Xxxx if Xxxx is required to
pay, any and all Taxes relating to or arising out of:
(a) the transportation or delivery of Fuel hereunder
(whether at, prior to or after the Delivery Point
therefor); and
(b) the delivery, transmission, sale or consumption of
Market Output hereunder (whether at or after the
Delivery Point therefor).
CPS shall indemnify, defend and hold harmless Xxxx from and with respect to
liability for any such Taxes.
12.3.2 XXXX TAXES. Xxxx shall be liable for and shall pay, cause to
be paid, or reimburse CPS if CPS is required to pay any and all Taxes imposed
on or with respect to the Facility or any other tangible property owned by
Xxxx, as well as Taxes imposed on or with respect to the performance by Xxxx of
Fuel Conversion Services hereunder, and Xxxx shall indemnify, defend and hold
harmless CPS from and with respect to liability for any such Taxes. As between
Xxxx and CPS, Xxxx shall also be liable for any net income taxes imposed upon
Xxxx or its partners with respect to the transactions contemplated hereunder.
12.3.3 EXEMPTIONS. Either Party, upon written request of the other,
shall provide a certificate of exemption or other reasonably satisfactory
evidence of exemption if either Party is exempt from any Taxes, and shall use
all reasonable efforts to obtain or maintain for, or to enable the other Party
to obtain or maintain, any exemption from or reduction of any Tax, whether
currently available or becoming available in the future. Without limiting the
generality of the foregoing, the Parties agree that, if it is beneficial to the
efforts of either Party to obtain or maintain any exemption from or reduction
of any Tax, whether currently available or becoming available in the future,
the Parties shall cooperate to restructure the transactions contemplated by
this Agreement so as to enable either Party to obtain or maintain such
exemption or reduction, as the case may be; provided, however, that any such
restructuring shall not adversely affect the economic consequences hereunder to
either Party.
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12.4 ENVIRONMENTAL INDEMNITY. Xxxx shall protect, defend, indemnify and
save harmless CPS, its officers, directors, shareholders, agents, employees,
successors and assigns (collectively, the "ENVIRONMENTAL INDEMNITEES") from,
against and in respect of, any and all losses, costs, damages, liabilities,
obligations, claims, causes of action, fines, penalties or expenses (including
reasonable attorney's fees, expenses and litigation costs and sums paid in
settlements of claims and any such fees and expenses incurred in enforcing this
indemnity or collecting any sums due hereunder) and reasonable expenses for
accounting, consulting, engineering, investigation, cleanup, response, removal
and/or disposal and other remedial costs, directly or indirectly imposed upon,
incurred by or asserted against any Environmental Indemnitee, arising out of or
in connection with (a) the use, generation, refining, manufacture,
transportation, transfer, production, processing, storage, handling, or
treatment of any Hazardous Materials on, under or from the Facility; (b) a
Release, or threatened Release, of any Hazardous Materials on, under or from
the Facility; (c) the cleanup, removal, and/or disposal of any Hazardous
Materials on, under or from the Facility required by any Environmental Law or
any Governmental Authority; (d) any personal exposure or injury (including
wrongful death) or property damage (real or personal) arising out of or related
to such Hazardous Materials, including, without limitation, any damage arising
out of any cleanup required by Governmental Authorities or Environmental Laws;
(e) any lawsuit brought or threatened, settlement reached, or government order
relating to such Hazardous Materials; or (f) any violation of Laws, orders,
rules, regulations, requirements, guidelines, or demands of Governmental
Authorities, including permits and licenses under Environmental Laws, which are
based upon or in any way related to such Hazardous Materials including the
costs and expenses of any remedial action, reasonable attorney and consultant
fees, investigation and laboratory fees, court costs and litigation expenses;
provided, however, that the foregoing indemnity shall not apply to any
liability, Loss, fines, penalties or other amounts arising from the possession,
control or handling of Fuel prior to the Delivery Point therefor (which shall
be governed by the provisions of Section 8.2.1 above) and shall not apply to
any liability, Loss, fines, penalties or other amounts arising from the failure
of Fuel to conform to the specifications set forth in this Agreement (which
shall be governed by the provisions of Section 8.2.2 above).
12.5 NOTICE OF CLAIM. An indemnified person (an "INDEMNITEE") shall
reasonably promptly after the receipt of notice of the commencement of any
legal action or of any claims against such Indemnitee in respect of which
indemnification may be sought pursuant to the foregoing provisions of this
Article 12.0, notify the indemnifying Party (the "INDEMNITOR") in writing
thereof; provided, that the failure of an Indemnitee reasonably promptly to
provide any such notice shall only reduce the Indemnitor's liability by the
amount of any damages attributable to the failure of the Indemnitee to give
such notice in such manner. In case any such claim or legal action shall be
made or brought against an Indemnitee and such Indemnitee shall notify the
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Indemnitor thereof, the Indemnitor may, or if so requested by such Indemnitee
shall, assume the defense thereof, without any reservation of rights, with
counsel reasonably satisfactory to such Indemnitee, and after notice from the
Indemnitor to such Indemnitee of an election to assume the defense thereof and
approval by the Indemnitee of such counsel, the Indemnitor will not be liable
to such Indemnitee under this Article 12.0 for any legal fees and expenses
subsequently incurred by such Indemnitee in connection with the defense
thereof. No Indemnitee shall settle any indemnified claim over which the
Indemnitor has not been afforded the opportunity to assume the defense without
the Indemnitor's approval, which approval shall not be unreasonably withheld.
The Indemnitor shall control the settlement of all claims over which it has
assumed the defense; provided, however, that the Indemnitor shall not conclude
any settlement which requires any action or forbearance from action by an
Indemnitee or any of its Affiliates or payment by an Indemnitee or any of its
affiliates, without the prior approval of the Indemnitee. The Indemnitee shall
provide reasonable assistance to the Indemnitor when the Indemnitor so
requests, at the Indemnitor's expense, in connection with such legal action or
claim. In all cases the Indemnitee shall have the right to participate in and
be represented by counsel of its own choice and at its own expense in any such
legal action or with respect to any claim.
12.6 PAYMENT. In the event either Party is required to make an indemnity
payment under this Article 12.0, such Party shall promptly pay the Indemnitee
the amount so determined. The amount owing to the Indemnitee shall be the
amount of such Indemnitee's actual out-of-pocket loss or expense, net of any
insurance or other recovery paid to such Indemnitee. If there should be a
dispute as to the amount or manner of determination of any indemnity
obligation, the Indemnitor shall nevertheless pay when due such portion, if
any, of the obligation as is not subject to dispute, and the matter shall be
referred to dispute resolution in accordance with the provisions of Article
17.0. Upon the payment in full of any claim, the Indemnitor making payment
shall be subrogated to the rights of the Indemnitee against any person with
respect to the subject matter of such claim.
12.7 SURVIVAL. The Parties expressly acknowledge and agree that the
provisions of this Article 12.0 shall survive the expiration or other
termination of this Agreement with respect to events, occurrences and claims
arising on or before such expiration or other termination.
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ARTICLE 13.0
INSURANCE
13.1 XXXX INSURANCE. From and after the Effective Date for the Term of
the Agreement, Xxxx shall obtain and maintain at its expense the minimum
insurance coverage for the Facility set forth in Exhibit G attached hereto
under individual or blanket insurance policies, with insurance companies rated
"A" or better by Best's Insurance Guide and Key Ratings, or otherwise
reasonably acceptable to CPS.
13.2 REQUIREMENTS OF XXXX INSURANCE. The insurance obtained by Xxxx
pursuant to Section 13.1 (other than workers' compensation coverage) shall name
CPS as an additional insured (to the extent of Xxxx'x indemnity obligations
under this Agreement) and shall include provisions or endorsements stating that
such insurance is primary insurance with respect to the interests of CPS and
that any insurance maintained by CPS is excess and not contributory insurance
with the insurance required hereunder. In addition, such insurance shall:
(a) provide a severability of interests or cross liability clause
for general liability and excess liability coverage, to the
extent available on commercially reasonable terms;
(b) provide that CPS shall have the right, but not any
obligation, to pay the premiums thereon if Xxxx shall fail to
do so;
(c) waive any right of subrogation against CPS, and waive any
other right of the insurers to any offset or counterclaim or
any other deduction, whether by attachment or otherwise, in
respect of any liability of CPS;
(d) provide that such insurance may not be canceled or materially
changed without at least thirty (30) days' (ten (10) days' in
the case of non-payment of premiums) prior written notice
sent by registered mail or courier to CPS; and
(e) to the extent available on commercially reasonable terms, be
endorsed as follows, or with substantially similar language:
"The breach of any of the warranties or conditions of this
policy by Xxxx shall not prejudice the rights of any
additional insured under this policy."
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13.3 PAYMENT OF DEDUCTIBLES. Xxxx'x insurance shall have reasonable
deductibles and Xxxx shall be solely responsible for the payment of all such
deductible amounts, unless the loss or damage is caused in whole or in part by
the fault or negligence of CPS or any of its contractors, in which case the
deductible shall be shared or apportioned as between Xxxx and CPS in proportion
to the degree of fault of each Party. Losses under Xxxx'x insurance shall be
adjusted by Xxxx, with assistance from CPS as necessary to document the loss,
and Xxxx and/or the Facility Lender shall be designated as loss payee with
respect to any property insurance covering the Facility.
13.4 CERTIFICATES OF INSURANCE. On or before the Effective Date and from
time to time thereafter upon the reasonable request of CPS, Xxxx shall deliver
to CPS certificates of insurance evidencing that the insurance required under
Section 13.1 is in effect, which certificates shall adequately show that such
insurance complies with the requirements of Section 13.2.
13.5 NONWAIVER. The failure of Xxxx to comply with the foregoing
insurance requirements of this Article 13.0 shall in no way affect its
obligations or liabilities under this Agreement, nor shall the failure of any
insurance company for any reason to pay claims accruing with respect to such
insurance affect, negate or release Xxxx from any of the provisions of this
Agreement, including the indemnity obligations set forth in Article 12.0. The
insurance coverages to be provided by Xxxx hereunder are not intended to and
shall not in any manner limit or qualify the obligations of Xxxx under this
Agreement, except to the extent any proceeds of such insurance are applied in
satisfaction of Xxxx'x obligations.
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ARTICLE 14.0
FORCE MAJEURE
14.1 EXCUSED PERFORMANCE. Each Party shall be excused from performance
and shall not be considered to be in default, or be liable to the other Party
for damages, with respect to any obligation under this Agreement, except the
obligation to make payment as specified herein with respect to amounts which
are due and payable under this Agreement, if and to the extent that its failure
of, or delay in, performance is due to an event of Force Majeure; provided,
that:
(a) Such Party gives the other Party written notice describing
the particulars of the Force Majeure as soon as is reasonably
practicable but in no event later than five (5) days after
the Party first becomes aware of the occurrence or
commencement of such event;
(b) The suspension or delay of performance is of no greater scope
and of no longer duration than is reasonably required by the
event of Force Majeure;
(c) No default by the affected Party which occurred before the
occurrence causing the suspension of performance is excused
as a result of the occurrence;
(d) The Party uses its reasonable efforts to overcome or mitigate
the effects of such occurrence; and
(e) When the Party is able to resume performance of its
obligations under this Agreement, such Party shall give the
other Party written notice to that effect and shall promptly
resume performance hereunder.
For avoidance of doubt, interruption of firm gas supply or transportation due
to an event of Force Majeure shall excuse performance by CPS as provided in
this section; and failure of Xxxx to perform its obligations hereunder caused
by CPS' failure to deliver Fuel shall excuse performance by Xxxx.
14.2 EXCLUSIONS. Notwithstanding the provisions of Section 14.1 above
or any other provision of this Agreement to the contrary:
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(a) The term "Force Majeure" shall not include or excuse the loss
by CPS of FERC-approved marketer status or the loss by Xxxx
of FERC-approved electric wholesale generator or market-based
rate authority status, unless such loss is itself caused by
an event of Force Majeure;
(b) The provisions of Section 14.1(d) above shall not require
either Party to settle any strike, walkout, lockout or other
labor dispute on terms which, in the sole judgment of the
Party involved in the dispute, are contrary to its interest,
it being understood and agreed that the settlement of
strikes, walkouts, lockouts or other labor disputes shall be
entirely within the discretion of the Party having such
dispute; and
(c) CPS shall have no obligation to make payment of the Fixed
Market Output Payment with respect to any period during which
either Party is excused from performance due to an event of
Force Majeure.
14.3 BURDEN OF PROOF. In the event the Parties are unable in good faith
to agree that an event of Force Majeure has occurred, the Parties shall submit
the dispute for resolution pursuant to Article 17.0 and the Party claiming a
Force Majeure shall have the burden of proof as to whether such Force Majeure
(a) has occurred, (b) was not a result of such Party's fault or negligence and
(c) could not have been avoided by due diligence or the use of reasonable
efforts by such Party.
14.4 EXTENDED FORCE MAJEURE. Notwithstanding any provision in this
Agreement to the contrary, in the event either Party is rendered substantially
unable to perform its material obligations hereunder due to Force Majeure and
the continuing effect of such Force Majeure has not been fully removed or
alleviated within six (6) months after the date such Force Majeure was
initially declared, then either Party shall have the right, so long as such
Force Majeure (or the effect thereof) continues, to terminate the Agreement,
without further liability or responsibility hereunder (except for any liability
which expressly survives the termination of the Agreement), upon thirty (30)
days written notice to the other Party.
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ARTICLE 15.0
DEFAULT AND
EARLY TERMINATION
15.1 TERMINATION FOR DEFAULT.
15.1.1 EVENT OF DEFAULT. An event of default under the Agreement
(an "EVENT OF DEFAULT") shall be deemed to exist with respect to a Party (the
"DEFAULTING PARTY") upon the occurrence of any one or more of the following:
(a) the Bankruptcy of the Defaulting Party;
(b) a failure by the Defaulting Party to make, when due, any
undisputed payment required pursuant to this Agreement, if
the Defaulting Party does not cure such failure within thirty
(30) days following receipt of notice from the other Party
demanding payment;
(c) a failure by the Defaulting Party to perform any other of its
material obligations under this Agreement in accordance with
the requirements of the Agreement, if the Defaulting Party
does not cure such failure within thirty (30) days following
receipt of notice from the other Party demanding such cure
(or, if such failure is curable, within such longer period of
time, not to exceed a maximum cure period of ninety (90)
days, as is reasonably necessary to accomplish such cure
without material adverse effect on the other Party, if the
cure cannot be reasonably accomplished within such thirty
(30)-day period and the Defaulting Party diligently commences
and completes such cure in such longer period); provided,
however, that, for avoidance of doubt, no Event of Default
shall be deemed to exist hereunder as a result of a failure
of the Facility to meet the Annual Heat Rate Guarantee set
forth in Section 7.3 above (which failure shall be governed
by the provisions of Section 7.3.2) or as a result of a
failure of the Facility to achieve the Minimum On-Peak
Dispatch Availability set forth in Section 5.3 above (which
failure shall be governed by the provisions of Section
11.1.5;
(d) a breach by the Defaulting Party of any material
representation or warranty of such Party set forth in this
Agreement, if within thirty
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(30) days following receipt of notice from the other Party
demanding such cure, the Defaulting Party does not cure such
breach by curing the facts underlying such incorrect
representation or warranty so as to make such incorrect
representation or warranty correct (or, if such breach is
curable, within such longer period of time, not to exceed a
maximum cure period of ninety (90) days, as is reasonably
necessary to accomplish such cure without material adverse
effect on the other Party, if the cure cannot be reasonably
accomplished within such thirty (30)-day period and the
Defaulting Party diligently commences and completes such
cure in such longer period); or
(e) a failure by the Defaulting Party to comply with the terms
of any final resolution of a dispute pursuant to Article
17.0 below, if the Defaulting Party does not cure such
failure within thirty (30) days following receipt of notice
from the other Party demanding such cure (or, if such
failure is curable and does not constitute a failure to pay
money, within such longer period of time, not to exceed a
maximum cure period of ninety (90) days, as is reasonably
necessary to accomplish such cure without material adverse
effect on the other Party, if the cure cannot be reasonably
accomplished within such thirty (30)-day period and the
Defaulting Party diligently commences and completes such
cure in such longer period).
15.1.2 REMEDIES. Subject to the limitations set forth in Articles
16.0 and 17.0 below, upon the occurrence and during the continuation of an
Event of Default, the Party not in default shall have the right to pursue any
remedy under this Agreement or now or hereafter existing under applicable Law
or in equity, including an action for direct damages and/or specific
performance and including termination of the Agreement upon twenty (20) days
written notice to the Defaulting Party; provided, however, that in the case of
an Event of Default by Xxxx, CPS shall provide the Facility Lender with notice
of such Event of Default and the Facility Lender shall have the rights set
forth in the Consent and Agreement to be entered into among Xxxx, CPS and the
Facility Lender pursuant to the provisions of Section 20.3 below.
Notwithstanding the foregoing and notwithstanding any other provision in this
Agreement to the contrary, Xxxx shall have the right, in addition to all other
rights and remedies hereunder, after five (5) days prior notice to CPS, to
suspend or curtail the performance of Fuel Conversion Services hereunder upon
and during an Event of Default as to CPS involving a failure of CPS to comply
with the payment provisions of the Agreement.
15.1.3 REMEDIES CUMULATIVE. Except as otherwise expressly provided
herein, all rights and remedies of the Parties set forth in this Agreement
shall be
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cumulative and no remedy available to a Party not in default hereunder shall be
exclusive of any other remedy.
15.2 OPTIONAL TERMINATION BY CPS. Notwithstanding any provision in this
Agreement to the contrary, CPS, at its sole election, may terminate the
Agreement at any time for its convenience upon thirty (30) days prior written
notice to Xxxx. Upon a termination pursuant to this Section 15.2, CPS shall
have no further liability or obligation to Xxxx (except as provided in this
Section and except for any other liability which expressly survives termination
of the Agreement), and Xxxx shall accept in full satisfaction and discharge of
all obligations owed to Xxxx with respect to the Agreement, an amount equal to
the sum of the following:
(a) all amounts due or becoming due pursuant to this Agreement
for Fuel Conversion Services rendered and Dependable Capacity
made available up to the Agreement termination date; plus
(b) an amount equal to the amount required to repay in full the
principal amount of all Facility Debt outstanding under the
Financing Documents at the Agreement termination date;
provided, however, that, regardless of any refinancing of
Facility Debt following the Effective Date, CPS shall not be
obligated hereunder to pay Xxxx a principal amount that
exceeds the principal amount of Facility Debt outstanding
under the Financing Documents on the Effective Date (reduced
up to the termination date in accordance with the original
repayment schedule set forth in such Financing Documents as
of the Effective Date); plus
(c) an amount equal to the amount required to pay all interest
period breakage costs, prepayment premiums and penalty,
interest rate swap breakage costs and other similar
termination payments payable under the Financing Documents or
under other agreements entered into by Xxxx in connection
with the Financing Documents with respect to the Facility
Debt payable pursuant to clause (b) above.
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CPS shall pay such amounts to Xxxx, in accordance with the payment provisions
set forth in Section 11.2.2 above, within five (5) days following the
termination date, or within fifteen (15) days following CPS's receipt of Xxxx'x
invoice therefor (together with such supporting documentation as CPS may
reasonably request), whichever is later. The determination of all amounts
payable pursuant to the foregoing with respect to the Financing Documents shall
be certified in writing by the Facility Lender, which certification shall be
included with Xxxx'x invoice therefor.
15.3 TERMINATION FOR FAILURE OF EFFECTIVE DATE TO OCCUR. Upon the
written notice of either Party, this Agreement shall terminate and be of no
force or effect, without liability or obligation on the part of either Party,
in the event the Effective Date does not occur on or before December 31, 1998.
15.4 TERMINATION RIGHTS OF CPS FOR SUMMER UNAVAILABILITY.
Not-withstanding anything else contained herein to the contrary, in the event
that for any Contract Year, the total of: (1) any liability of Xxxx pursuant to
Section 7.3.2 in the preceding Contract Year, (2) any Availability Adjustment
to Fixed Market Output Payment pursuant to Section 11.1.5(a) for such Contract
Year, and (3) any Availability Adjustment to Fixed Market Output Payment
pursuant to Section 11.1.5(b) for such Contract Year exceeds ten percent (10%)
of the Fixed Market Output Payment payable by CPS with respect to such Contract
Year, CPS shall have the right to terminate this Agreement at any time during
such Contract Year upon twenty (20) days written notice to Xxxx. Provided
however that CPS shall not have the right to terminate as set forth in this
Section 15.4, unless Xxxx'x performance shall have triggered an Availability
Adjustment to Fixed Market Output Payment pursuant to Section 11.1.5(b) for
such Contract Year. With respect to the calculation of liability of Xxxx
pursuant to Section 7.3.2 for the 1999 Contract Year, the liability of Xxxx
under (1) above shall be that incurred in the 1999 Contract Year and CPS's
right to terminate shall extend until January 31, 2000.
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ARTICLE 16.0
LIABILITY
16.1 LIMITATION OF AVAILABILITY ADJUSTMENT AND HEAT RATE DAMAGES.
Subject to the overall limitation on Xxxx'x liability under this Agreement as
set forth in Section 16.2 below, the Parties agree that the aggregate
cumulative liability of Xxxx hereunder with respect to operating guarantees or
performance for any Contract Year during the Term, including liability pursuant
to Section 7.3.2 for excess Gas or Fuel Oil utilized by the Facility during any
Contract Year and including Availability Adjustments to the Fixed Market Output
Payment pursuant to Section 11.1.5 with respect to any Contract Year, shall not
exceed an amount equal to ten percent (10%) of the Fixed Market Output Payment
payable by CPS with respect to such Contract Year.
16.2 AGGREGATE YEARLY LIMIT OF LIABILITY. Notwithstanding any other
provision in this Agreement to the contrary, the Parties agree that Xxxx'x
aggregate cumulative liability to CPS in any Contract Year arising out of or
relating to this Agreement from any and all causes, including liability for
Availability Adjustments to the Fixed Market Output Payment and liability for
excess Fuel utilization, shall not exceed an amount equal to the Fixed Market
Output Payment for such Contract Year.
16.3 WAIVER OF CONSEQUENTIAL DAMAGES. In no event shall either Xxxx or
CPS, or their respective officers, directors, partners, shareholders,
Affiliates, agents, employees, successors, assigns, suppliers or contractors be
liable to the other Party hereunder or to its officers, directors, partners,
shareholders, Affiliates, agents, employees, successors, assigns, suppliers or
contractors for special, indirect, consequential, punitive or exemplary damages
of any nature or kind whatsoever, including loss of profits or revenue (except
with respect to payments and amounts expressly provided for in the Agreement),
outages or service interruptions of the Facility (except with respect to
Availability Adjustments expressly provided for in the Agreement), loss of
contracts, cost of capital or claims of customers, and Xxxx hereby releases CPS
therefrom, and CPS hereby releases Xxxx therefrom.
16.4 INTENT. The Parties intend that the waivers and disclaimers of
liability, releases from liability, limitations and apportionments of
liability, and exclusive remedy provisions expressed throughout this Agreement
shall apply, whether in contract, tort or otherwise, even in the event of the
fault, negligence (in whole or in part), strict liability or breach of contract
of the Party released or whose liability is waived, disclaimed, limited,
apportioned or fixed by such exclusive remedy provision, and shall extend to
such Party's Affiliates, contractors and suppliers, and to its and
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their partners, shareholders, directors, officers, employees and agents. The
Parties also intend and agree that such provisions shall continue in full force
and effect notwithstanding the expiration or earlier termination of the
Agreement. The Parties confirm that (a) the exclusive remedies and measures of
damages provided in this Agreement satisfy the essential purposes hereof, (b)
for breach of any provision for which an exclusive remedy or measure of damages
is provided, such exclusive remedy or measure of damages shall be the sole and
exclusive remedy, (c) the obligor's liability shall be limited as set forth in
such provisions, and (d) with respect to such provisions, all other remedies or
damages at law or in equity are waived.
16.5 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, XXXX MAKES NO
WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, CONCERNING THE FACILITY, THE
DEPENDABLE CAPACITY, MARKET OUTPUT, HEAT RATE, AVAILABILITY OR ANY OTHER MATTER
UNDER THIS AGREEMENT, AND XXXX DISCLAIMS ANY WARRANTY OR GUARANTY IMPLIED BY
LAW, AS WELL AS WARRANTIES OF CUSTOM OR USAGE.
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ARTICLE 17.0
DISPUTE RESOLUTION
17.1 NEGOTIATION OF DISPUTES.
17.1.1 DISPUTES NOT INVOLVING AN EVENT OF DEFAULT. In the event of
any claim, dispute or disagreement (a "DISPUTE") arising out of or relating to
the implementation or performance of this Agreement which the Parties have been
unable to settle or agree upon within a period of thirty (30) days after the
Dispute arises and which is not a Dispute involving an alleged Event of Default
by either Party, the Chief Executive Officers of each Party shall meet, upon
the request of either Party (the "FIRST TRIGGER"), in a good faith effort to
reasonably resolve the Dispute. If such Chief Executive Officers are unable to
resolve the Dispute within fifteen (15) days of the First Trigger, or if either
Chief Executive Officer earlier requests such a meeting (in either case, the
"SECOND TRIGGER"), the respective Chairmen of the Board of each Party, or an
equivalent director or officer, shall meet in a good faith effort to reasonably
resolve the Dispute, and if such individuals are unable to reach a resolution
within fifteen (15) days following the Second Trigger, then either Party may by
notice to the other submit the Dispute to arbitration in accordance with the
provisions of Section 17.2 below. The Parties agree, however, in the case of
technical Disputes, that prior to submission of the Dispute to arbitration by
either Party, the Parties shall consider attempting to resolve the Dispute by
referring the matter to the Independent Engineer for resolution in accordance
with procedures to be mutually agreed upon.
17.1.2 DISPUTES INVOLVING AN EVENT OF DEFAULT. In the event of any
Dispute arising out of or relating to the implementation or performance of this
Agreement which involves an alleged Event of Default by either Party and with
respect to which any applicable notice requirement and cure period set forth in
Section 15.1.1 have been met, the Chief Executive Officers of each Party shall
meet, upon the request of either Party (the "EVENT OF DEFAULT TRIGGER"), in a
good faith effort to reasonably resolve the Dispute. If such Chief Executive
Officers are unable to resolve the Dispute within fifteen (15) days of the
Event of Default Trigger, or if either Chief Executive Officer earlier requests
such a meeting, the respective Chairmen of the Board of each Party, or an
equivalent director or officer, shall meet in a good faith effort to reasonably
resolve the Dispute, and if such individuals are unable to reach a resolution
within thirty (30) days following the Event of Default Trigger, then either
Party may by notice to the other submit the Dispute to arbitration in
accordance with the provisions of Section 17.2 below. The Parties agree,
however, in the case of technical Disputes, that prior to submission of the
Dispute to arbitration by either Party, the Parties shall
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consider attempting to resolve the Dispute by referring the matter to the
Independent Engineer for resolution in accordance with procedures to be
mutually agreed upon.
17.2 ARBITRATION.
17.2.1 PROCEDURES. Any Dispute arising out of or relating to this
Agreement or the breach or termination thereof which is not settled in
accordance with the provisions of Section 17.1 above shall be submitted to
binding arbitration to be conducted in accordance with the following procedure:
(a) The Party seeking arbitration hereunder may request
such arbitration in writing, which writing shall
include a clear statement of the matter(s) in dispute
and shall name one arbitrator appointed by such Party.
Within twenty (20) days after receipt of such request,
the other Party shall appoint one arbitrator, or in
default thereof, such arbitrator shall be named as soon
as practicable by the Arbitration Committee of the
American Arbitration Association, and the two
arbitrators so appointed shall name a third arbitrator
within ten (10) days, or failing such agreement on a
third arbitrator by the two arbitrators so appointed, a
third arbitrator shall be appointed by the Arbitration
Committee of the American Arbitration Association.
(b) The arbitration hearing shall be held in New York City,
New York, on at least thirty (30) days prior written
notice to the Parties. Except as otherwise provided
herein, the proceedings shall be conducted in
accordance with the Expedited Procedures of the
Commercial Arbitration Rules and procedures of the
American Arbitration Association; provided, that
depositions may be taken and discovery may be made in
accordance with the Federal Rules of Civil Procedure.
Any decision of the arbitrators, including a decision
regarding an allocation of costs consistent with this
Section 17.2.1, shall be joined in by at least two of
the arbitrators and shall be set forth in a written
award which shall state the basis of the award and
shall include both findings of fact and conclusions of
law. Any award rendered pursuant to the foregoing,
which may include an award or decree of specific
performance hereunder, shall, subject to clause (c)
below, be final and binding on the Parties, and
judgment thereon may be
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entered or enforcement thereof sought by either Party
in a court of competent jurisdiction.
(c) Either Party may appeal an arbitration award to a court
of competent jurisdiction to the extent such Party is
aggrieved by the arbitrators' conclusion(s) of law.
Additionally, the Parties may appeal a finding of fact
to the extent a court of competent jurisdiction
determines that such finding was clearly erroneous.
(d) Notwithstanding the foregoing, nothing contained herein
shall be deemed to give the arbitrators appointed
pursuant to the foregoing any authority, power or right
to alter, change, amend, modify, waive, add to or
delete from any of the provisions of this Agreement.
(e) Each Party shall bear the costs of its appointed
arbitrator and its own attorneys' fees, and the costs
of the third arbitrator incurred in accordance with the
foregoing shall be shared equally by the Parties.
Additional incidental costs of arbitration shall be
paid for by the non-prevailing Party in the
arbitration; provided, that where the final decision of
the arbitrators is not clearly in favor of either
Party, such incidental costs shall be shared equally by
the Parties.
(f) The Parties agree that compliance by a Party with the
provisions of subparagraphs (a) through (e) of this
Section 17.2.1 shall be a complete defense to any suit,
action or proceeding instituted in any federal or state
court, or before any administrative tribunal by the
other Party with respect to any controversy or dispute
arising under or pursuant to this Agreement and which
is subject to arbitration as set forth herein, other
than a suit or action alleging non-compliance with a
final and binding arbitration award rendered hereunder.
(g) The Parties further agree that all aspects of the
arbitration, and any award made by the arbitrators,
shall be held confidential by the Parties and the
arbitrators.
17.2.2 APPLICABLE LAW AND ARBITRATION ACT. The agreement to
arbitrate set forth in this Section 17.2 shall be enforceable in either federal
or state
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court. The enforcement of such agreement and all procedural aspects thereof,
including the construction and interpretation of this agreement to arbitrate,
the scope of the arbitrable issues, allegations of waiver, delay or defenses as
to arbitrability, and the rules (except as otherwise expressly provided herein)
governing the conduct of the arbitration, shall be governed by and construed
pursuant to the United States Arbitration Act, 9 U.S.C. Sections 1-16. In
deciding the substance of any such claim, dispute or disagreement, the
arbitrators shall apply the substantive Laws of the State of New York;
provided, however, that the arbitrators shall have no authority to award
punitive damages under any circumstances (whether it be exemplary damages,
treble damages, or any other penalty or punitive type of damages) regardless of
whether such damages may be available under New York Law, the Parties hereby
waiving their right, if any, to recover punitive damages in connection with any
such claims, disputes or disagreements.
17.3 PENDENCY OF DISPUTE. The existence of any Dispute under this
Agreement or the pendency of the Dispute settlement or resolution procedures
set forth herein shall not in and of themselves relieve or excuse either Party
from its ongoing duties and obligations under this Agreement.
ARTICLE 18.0
XXXX REPRESENTATIONS
AND COVENANTS
Xxxx hereby represents, warrants and covenants to CPS as follows:
18.1 STANDING. It is a limited partnership duly organized, validly
existing and in good standing under the Laws of the State of Delaware and is
qualified to do business in New York and in all other jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and where failure so to qualify would have a material adverse effect on its
financial condition, operations, prospects or business or its ability to
perform its obligations under this Agreement.
18.2 NO VIOLATION OF LAW; LITIGATION. It is not in violation of any
applicable Law promulgated or judgment entered by any national, state, or local
Governmental Authority which violations, individually or in the aggregate,
would affect its performance of any obligations under this Agreement. There are
no legal or arbitration proceedings or any proceeding by or before any
governmental or regulatory authority or agency, now pending or (to the best
knowledge of Xxxx) threatened against it which, if adversely determined, could
reasonably be expected to have a material adverse effect
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on its financial condition, operations, prospects or business, as a whole, or
its ability to perform under this Agreement.
18.3 LICENSES. It has made all filings with, and, except as set forth in
Article 3.0, obtained all consents, licenses, permits, and other approvals
from, all applicable Governmental Authorities which are required or appropriate
to be made or obtained to permit it to lawfully conduct its business now and as
contemplated by this Agreement.
18.4 NO BREACH. None of the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated or compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent (except such consents as have been obtained or are
reasonably expected to be obtained in due course) under, the limited
partnership agreement or other organizational documents of Xxxx, or any
applicable Law or regulation, or any order, writ, injunction or decree of any
court, or any agreement or instrument to which it is a party or by which it is
bound or to which it or its property is subject, or constitute a default under
any such agreement or instrument.
18.5 AUTHORITY, ETC. It has all necessary power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by it of this Agreement have been duly
authorized by all necessary partnership action on its part; and this Agreement
has been duly and validly executed and delivered by it and constitutes the
legal, valid and binding obligation of Xxxx enforceable against it in
accordance with the terms hereof, except as such enforceability may be limited
by Bankruptcy, insolvency, reorganization or moratorium or other similar Laws
relating to the enforcement of creditors' rights generally and by general
equitable principles.
18.6 ASSETS AND BUSINESS. Xxxx'x assets consist, and at all times during
the Term will consist, solely of its interests in the Facility and assets
reasonably related thereto, and, during the Term, Xxxx will engage only in
activities and transactions contemplated by, or reasonably related to the
performance of its obligations under, this Agreement. As of the Effective Date,
Xxxx shall possess all rights and interests in the Facility and other assets
necessary to perform its obligations under this Agreement.
18.7 COMPLIANCE WITH LAW. Xxxx'x performance of its obligations under
this Agreement, including the performance of all Fuel Conversion Services, will
be in compliance in all material respects with all applicable federal, state
and local Laws, including Environmental Laws.
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ARTICLE 19.0
CPS REPRESENTATIONS
AND COVENANTS
CPS hereby represents, warrants and covenants to Xxxx as follows:
19.1 STANDING. It is a corporation duly organized, validly existing and
in good standing under the Laws of the State of Delaware and is qualified to do
business in all other jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify would have a material adverse effect on its financial condition,
operations, prospects or business or its ability to perform its obligations
under this Agreement.
19.2 NO VIOLATION OF LAW; LITIGATION. It is not in violation of any
applicable Law promulgated or judgment entered by any national or local
Governmental Authority which violations, individually or in the aggregate,
would affect its performance of any obligations under this Agreement. There are
no legal or arbitration proceedings or any proceeding by or before any
governmental or regulatory authority or agency, now pending or (to the best
knowledge of CPS) threatened against CPS which, if adversely determined, could
reasonably be expected to have a material adverse effect on the financial
condition, operations, prospects or business, as a whole, of CPS, or its
ability to perform under this Agreement.
19.3 LICENSES. It has made all filings with, and obtained all consents,
licenses, permits, and other approvals from, all applicable Governmental
Authorities which are required or appropriate to be made or obtained to permit
it to lawfully conduct its business now and as contemplated by this Agreement.
19.4 NO BREACH. None of the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated or compliance with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent (except such consents as have been obtained or are
reasonably expected to be obtained in due course) under, the articles, bylaws
or other organizational documents of CPS, or any applicable Law or regulation,
or any order, writ, injunction or decree of any court, or any agreement or
instrument to which CPS is a party or by which it is bound or to which it or
its property is subject, or constitute a default under any such agreement or
instrument.
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19.5 AUTHORITY, ETC. It has all necessary power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by CPS of this Agreement have been duly
authorized by all necessary corporate action on its part; and this Agreement
has been duly and validly executed and delivered by CPS and constitutes the
legal, valid and binding obligation of CPS enforceable against CPS in
accordance with the terms hereof, except as such enforceability may be limited
by Bankruptcy, insolvency, reorganization or moratorium or other similar Laws
relating to the enforcement of creditors' rights generally and by general
equitable principles.
19.6 COMPLIANCE WITH LAW. CPS's performance of its obligations under
this Agreement, including all delivery of Fuel hereunder, will be in compliance
in all material respects with all applicable federal, state and local Laws,
including Environmental Laws.
ARTICLE 20.0
ASSIGNMENT
20.1 AGREEMENT BINDING. This Agreement shall be binding upon, and
shall inure to the benefit of, the Parties hereto and their respective
successors and permitted assigns.
20.2 ASSIGNMENT. This Agreement shall not be assignable by either Party
in whole or in part without the prior written consent of the other Party, which
consent shall be within the sole discretion of such other Party, except that:
(a) this Agreement may be collaterally assigned in whole by Xxxx without such
consent to the Facility Lender; and (b) this Agreement may be assigned without
such consent to the successor (by merger, consolidation, or acquisition) of
either Party, or, in the case of CPS, to any direct or indirect wholly-owned
subsidiary of Baltimore Gas and Electric Company, or successor, but such
assignment shall not relieve the assigning Party of any of its obligations
under this Agreement. Except for an assignment to the Facility Lender, no
assignment by either Party of this Agreement for any purpose whatsoever shall
be valid until all obligations of the assignor hereunder shall have been
assumed by the assignee by written agreement delivered to the other Party. Any
assignment which does not comply with the provisions of this Section 20.2 shall
be null and void.
20.3 FACILITY LENDER REQUESTED DOCUMENTS. In connection with any
collateral assignment by Xxxx of this Agreement to the Facility Lender as set
forth in Section 20.2 above, CPS agrees to execute and deliver a Consent and
Agreement to
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such assignment in the form reasonably requested by the Facility Lender and
reasonably acceptable to CPS; provided that such Consent and Agreement, or any
substitute Consent and Agreement reasonably requested by the Facility Lender,
shall not result in, or purport to constitute, an amendment or modification of
this Agreement. CPS further agrees to furnish the Facility Lender with such
other documents as may reasonably be requested by the Facility Lender,
including (as applicable) an opinion of counsel to CPS, certificates of good
standing, organizational certificates and resolutions of CPS's board of
directors authorizing the execution and delivery of this Agreement and the
Consent and Agreement.
ARTICLE 21.0
PROPRIETARY &
CONFIDENTIAL INFORMATION
21.1 NON-DISCLOSURE OBLIGATION. Neither Party shall disclose to third
parties any confidential or proprietary information regarding the other Party's
business affairs, finances, technology, processes, plans or installations,
product information, know-how, or other information that is received from the
other Party pursuant to this Agreement or the Parties' relationship prior
thereto and that is clearly marked "confidential", without the express written
consent of the other Party, which consent shall not be unreasonably withheld.
In addition, except as reasonably required by Xxxx for financing the
acquisition of the Facility or as reasonably required by either Party for
performing its obligations hereunder, both Parties shall at all times use their
reasonable efforts to keep all information regarding the terms and conditions
of this Agreement confidential. This Section 21.1 shall not apply to
information that was already in the possession of one Party prior to receipt
from the other, that is now or hereafter becomes a part of the public domain
through no fault of the Party wishing to disclose, or that corresponds in
substance to information heretofore or hereafter furnished by third parties
without restriction on disclosure.
21.2 REQUIRED DISCLOSURE. If a Party is compelled by Law to disclose
information that is otherwise required to be maintained in confidence pursuant
to Section 21.1 above, or if disclosure is required in connection with the
assertion of any claim or defense in judicial or administrative proceedings
involving a Party, the Party may make disclosure notwithstanding the provisions
of Section 21.1; provided, however, that the Party making the disclosure shall
immediately notify the other Party of the requirement and the terms thereof
prior to the submission and shall cooperate to the maximum extent practicable
to minimize the disclosure of the information. The Party disclosing such
information shall use its reasonable efforts, at the cost of the
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other Party, to obtain proprietary or confidential treatment of such
information by the third party to whom the information is disclosed, and shall,
to the extent such remedies are available, seek protective orders limiting
dissemination and use of the information. This Agreement does not alter the
rights of either Party to challenge any Law requiring the disclosure.
21.3 TERM OF OBLIGATION. The confidentiality obligations of the Parties
pursuant to this Article 21.0 shall survive the expiration or other termination
of this Agreement for a period of two (2) years. Upon such expiration or other
termination, each Party shall promptly return to the other Party, upon request,
any confidential information of the other Party supplied in documentary form.
ARTICLE 22.0
NOTICES
22.1 WRITING. Any notice, invoice, demand, offer or other written
instrument required or permitted to be given pursuant to this Agreement (unless
expressly permitted to be sent electronically) shall be in writing signed by
the Party giving such notice and shall, to the extent reasonably practicable,
be sent by telefax, and if not reasonably practicable to send by telefax, then
by hand delivery, overnight courier, or registered mail, to the other Party at
the address set forth below:
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If delivered to Xxxx:
c/o Orion Power Holdings, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
FAX: 000-000-0000
Attention: Xxxx Xxxxx, COO
with a copy to:
c/o Orion Power Holdings, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
FAX: 000-000-0000
Attention: Xxxxx Xxxx, CFO
If delivered to CPS:
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
FAX: 000-000-0000
Attention: Xxxx Xxxxx, Vice President
with a copy to:
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
FAX: 000-000-0000
Attention: Xxxx Xxxxxxx, General Counsel
Each Party shall have the right to change the place to which notice shall be
sent or delivered or to specify one additional address to which copies of
notices may be sent, in either case by similar notice sent or delivered in like
manner to the other Party.
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22.2 TIMING OF RECEIPT. Without limiting any other means by which a
Party may be able to prove that a notice has been received by the other Party,
a notice shall be deemed to be duly received:
(a) If delivered by hand, overnight courier or telegram, the date
when left at the address of the recipient;
(b) If sent by registered mail, the date of the return receipt;
or
(c) If sent by telefax, upon receipt by the sender of an
acknowledgment or transmission report generated by the
machine from which the telefax was sent indicating that the
telefax was sent in its entirety to the recipient's telefax
number.
In any case hereunder in which a Party is required or permitted to respond to a
notice from the other Party within a specified period, such period shall run
from the date on which the notice was deemed received as above provided, and
the response shall be considered to be timely given if given as above provided
by the last day of such period.
ARTICLE 23.0
MISCELLANEOUS PROVISIONS
23.1 CONDITIONS PRECEDENT. The obligations of Xxxx and CPS to proceed
with the transactions contemplated by this Agreement shall be expressly subject
to fulfillment, on or prior to the Effective Date, of the following conditions
precedent, unless waived in writing by both parties:
(a) Xxxx shall have assigned, or caused to be assigned, to CPS
that certain NiMo Gas Transportation Agreement dated June 26,
1998 (the "GAS TRANSPORTATION AGREEMENT"), and CPS shall have
duly accepted such assignment and assumed, as of the
Effective Date, all of the obligations of the assignor
thereunder;
(b) Such assignment of the Gas Transportation Agreement shall be
effective as to NiMo;
(c) All required regulatory approvals for Xxxx to sell the
Facility's Dependable Capacity and provide Fuel Conversion
Services in
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accordance with this Agreement and otherwise perform its
obligations hereunder shall have been obtained; and
(d) Xxxx shall have completed the purchase of the Facility and
the Facility Site, and shall have executed all agreements
(whether by assignment of existing agreements or by execution
of new agreements) required for the operation of the Facility
in accordance with this Agreement, including an
interconnection agreement with NiMo and the Operation and
Maintenance Agreement, and all such agreements shall be in
full force and effect.
23.2 SCHEDULING COORDINATOR. CPS shall perform the function of
scheduling coordinator for the Facility, as contemplated under the rules and
procedures of the NYPP/NY ISO. Notwithstanding any provision in this Agreement
to the contrary, CPS may subcontract its duties pursuant to this Section 23.2,
without the consent of Xxxx, to any person permitted by the NYPP/NY ISO;
provided, however, that if CPS proposes to subcontract such duties to any
person who is not an Affiliate of CPS, it shall first offer such subcontract to
Xxxx.
23.3 JOINT EFFORT. Preparation of this Agreement has been a joint effort
of the Parties and the resulting document shall not be construed more severely
against one of the Parties than against the other.
23.4 CAPTIONS. The captions contained in this Agreement are for
convenience and reference only and in no way define, describe, extend or limit
the scope or intent of this Agreement or the intent of any provision contained
herein.
23.5 SEVERABILITY. The invalidity of one or more phrases, sentences,
clauses, Sections or Articles contained in this Agreement shall not affect the
validity of the remaining portions of the Agreement so long as the material
purposes of this Agreement can be determined and effectuated.
23.6 NO WAIVER. Any failure of either Party to enforce any of the
provisions of this Agreement or to require compliance with any of its terms at
any time during the pendency of this Agreement shall in no way affect the
validity of this Agreement, or any part hereof, and shall not be deemed a
waiver of the right of such Party thereafter to enforce any and each of such
provisions.
23.7 APPLICABLE LAW. This Agreement shall be governed by, construed and
enforced in accordance with the Laws of the State of New York, exclusive of
conflicts of laws provisions.
59
61
23.8 COUNTERPARTS. This Agreement may be signed in any number of
counterparts and each counterpart shall represent a fully executed original as
if signed by both Parties.
23.9 SURVIVAL. The provisions of Articles 12.0, 18.0 and 19.0 and
Section 8.2 of this Agreement shall survive the expiration or earlier
termination of this Agreement for the terms specified therein, if any, and
otherwise indefinitely.
23.10 FURTHER ASSURANCES. Each Party agrees to execute and deliver all
further instruments and documents, and take all further action not inconsistent
with the provisions of this Agreement that may be reasonably necessary to
complete performance of the Parties' obligations hereunder and to effectuate
the purposes and intent of this Agreement.
23.11 INDEPENDENT CONTRACTOR, ETC. The Parties shall each be independent
contractors with respect to the performance of this Agreement, and neither
Party, nor its employees, contractors, agents or representatives shall be
deemed to be the servants, employees, agents or representatives of the other
Party in any respect. Nothing contained in this Agreement shall be construed as
constituting a joint venture, partnership or other association between Xxxx and
CPS, and neither Party shall be authorized to act on behalf of or to bind the
other Party or to make any representation about or on behalf of such other
Party.
23.12 THIRD PARTIES. Except as otherwise expressly provided in this
Agreement with respect to indemnified persons, nothing in this Agreement shall
be construed to create any duty to, standard of care with respect to, or any
liability to any person who is not a party to this Agreement.
23.13 ANNOUNCEMENTS. Except as otherwise required by Law or the rules of
the New York Stock Exchange, for so long as this Agreement is in effect,
neither Party shall, nor shall either Party permit its Affiliates to, issue or
cause the publication of any press release or other public announcement with
respect to the transactions contemplated by this Agreement without the prior
review of the other Party.
23.14 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, each Party shall pay all of its own costs and
expenses incurred in connection with the negotiation and execution of this
Agreement.
23.15 NO PRECEDENTIAL VALUE. The Parties agree that this Agreement shall
not have any precedential value for any other future dealings or arrangements
between the Parties.
60
62
AGREEMENT EXECUTION
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the date set forth in the preamble to this Agreement by their duly
authorized representatives as follows:
XXXX:
XXXX STREET GENERATING STATION, L.P.
by , its General Partner
----------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
CPS:
CONSTELLATION POWER SERVICES, INC.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
61
63
EXHIBIT A
DESCRIPTION OF FACILITY AND
DESIGNATION OF DELIVERY POINTS
The Facility is a natural gas fired dual combustion turbine, single steam
turbine combined cycle electric generation facility that produces up to 105
gross megawatts of power. The Facility also has the capability to fire No. 2
low sulfur fuel oil, and may produce up to 80,000 pounds per hour of process
steam with a proportionate reduction in electrical power output up to
approximately 5 MW.
Natural gas is delivered to the Facility via pipeline and No. 2 low sulfur fuel
oil is delivered by truck. No. 2 fuel oil is stored in a tank on site prior to
burning in the combustion turbines. The combined cycle heat rate without steam
generation is approximately 8,000 Btu/kwh.
Electricity is delivered to the NiMo transmission system via a NiMo substation
located on the Facility Site. The electric power is generated at 13,800 volts
and transformed to 115,000 volts at 60 hertz with a power factor as dispatched
to meet market conditions.
Steam is produced by a reboiler system that isolates the process steam from the
steam turbine condensate cycle. Steam is delivered to the Facility gate via
pipeline at a flow of 20,000 to 80,000 pounds per hour at a temperature of 358
degrees F to 378 degrees F, and a pressure of 135 to 155 psig.
The designated Delivery Points at the Facility are as follows:
1. For Gas delivered by CPS, the delivery point to Xxxx shall be the metered
interconnection owned and maintained by NiMo between NiMo's facilities and
the Facility.
2. For Fuel Oil delivered by CPS, the delivery point to Xxxx shall be the
suction valve on the Fuel Oil unloading pumps for storage in the on-site
Fuel Oil storage tank. The Fuel Oil meters located in the fuel supply lines
to each combustion turbine shall measure the Fuel Oil volumes converted to
electrical power.
3. For Ancillary Services and Net Electric Energy delivered by Xxxx, the
delivery point to CPS shall be the switch at the 115,000 volt ring bus owned
and maintained by NiMo designated as the receiving point in the
Interconnection Agreement between NiMo and East Syracuse Generating Company,
as assigned to Xxxx.
A-1
64
4. For Market Steam delivered by Xxxx, the delivery point to Xxxxxxx - Xxxxx
shall be at the Xxxxxxx - Xxxxx steam valve, as built and as the pipeline is
in place as of the Effective Date of the Agreement. Any other Market Steam
customer delivery point shall be either the Facility fence line, or as may
be otherwise agreed by Xxxx and CPS.
A-2
65
EXHIBIT B
ALLOWANCES FOR SCHEDULED MAINTENANCE
Scheduled Maintenance is the annually planned outage time required to perform
work on specific components of the Facility. This includes the annual tune-up
outages scheduled in April or May, heat recovery steam generator (HRSG) outages
for inspection and permits, the hot section inspection of the combustion
turbine and major overhauls of the combustion turbines. A Scheduled Maintenance
plan shall be presented and agreed to between CPS and Xxxx sixty (60) days
before the start of each Contract Year.
Scheduled Maintenance hours shall be excluded from the calculation of monthly
On-Peak Dispatch Availability and the application of any Availability
Adjustment to the Fixed Market Output Payment.
For example: In any given month of May there are 336 to 368 On-Peak hours. A
two (2) week Scheduled Maintenance tune-up outage occurs in May. CPS shall not
request Dispatch of the Facility during those two weeks that include one
hundred and sixty (160) On-Peak hours. The calculation of the On-Peak Dispatch
Availability for that month of May shall include only the Dispatched MWH
requested during the 176 to 208 On-Peak hours outside of the two week Scheduled
Maintenance period.
For purposes of developing the Scheduled Maintenance plan for any Contract
Year, the following rules will apply:
1. Tune-up outages are required in the months of April or May, and shall be
limited to eighty (80) On-Peak hours.
2. HRSG outages may be scheduled in April, May, October, November or December.
If the HRSG outage is scheduled in April or May, the outage shall be limited
to one hundred and sixty (160) On-Peak hours and performed with the tune-up
outage included within the one hundred and sixty (160) hours. If the HRSG
outage is scheduled for the months of October, November or December, the
outage shall be limited to one hundred and sixty (160) On-Peak hours in
addition to the required eighty (80) hour tune-up outage.
3. Combustion turbine hot section inspection outages may be scheduled in April,
May, October, November or December. If the combustion turbine hot section
inspection outage is scheduled in April or May, the outage shall be limited
to two hundred and forty (240) On-Peak hours and performed with the tune-up
outage included within the two hundred and forty (240) hours. If the
combustion turbine hot section inspection outage is scheduled for the months
B-1
66
of October, November or December, the outage shall be limited to two hundred
and forty (240) On-Peak hours in addition to the required eighty (80) hour
tune-up outage.
4. Major combustion turbine overhaul outages may be scheduled in April, May,
October, November or December. If the major combustion turbine overhaul
outage is scheduled in April or May, the outage shall be limited to three
hundred and twenty (320) On-Peak hours and performed with the tune-up outage
included within the three hundred and twenty (320) hours. If the major
combustion turbine outage is scheduled for the months of October, November
or December, the outage shall be limited to three hundred and twenty (320)
On-Peak hours in addition to the required eighty (80) hour tune-up outage
B-2
67
EXHIBIT C
FACILITY OPERATING PROCEDURES
AND OPERATING LIMITATIONS
Operating Procedures and Operating Limits
The operation of the Facility shall be governed by Operating Procedures and
Operating Limits developed in accordance with original equipment manufacturer
and plant design specifications. The Facility shall be operated in strict
conformance to these procedures and limits. Copies of the individual plant
systems procedures are maintained at the Facility.
Attached are the Dispatch and Outage Notification Procedures, the Start-up
Loading Profiles for cold, warm and hot start-ups, and a listing of the
Operating Limits for the Facility. This list may be up-dated periodically with
new information from either original equipment manufacturers or as the result
of an engineering re-evaluation of Facility equipment.
Operating Characteristics of the Facility
Maximum Continuous Loading Limits
The maximum continuous loading limit for the Facility is one hundred and
five (105) gross megawatts (MW) in the winter months (October to May) and
one hundred and two (102) xxxxx XX in the summer months (June to
September). The auxiliary equipment loading, or station use, is
approximately three (3) MW.
Minimum Continuous Loading Limit
The minimum stable load for the continuous operation of the Facility is
20 MW, with both combustion turbines and the steam turbine connected to
the electric transmission system.
Rate of Load Change (Ramp Rate)
The minimum rate of load change, either increasing or decreasing, is one
and one half (1 1/2) MW per minute.
C-1
68
Black Start Capability
None.
Combustion Turbine Generator Rating
53.66 MVA @ 15 C, 48.83 MW, 0.85 Power Factor.
Steam Turbine Generator Rating
27.778 MVA @ 15 C, 25 MW, 0.9 Power Factor.
Procedure for Dispatch Notice and Confirmation of Receipt
1. CPS shall prepare a Dispatch Notice (form attached in Exhibit D) for each
day of dispatch requested including all of the information required on the
form. If specific dispatch information provided for on the form is not
required for the Dispatch Notice, then those spaces shall be marked "n/a".
The person originating the form shall sign and date the form, and fax the
form to the Facility at Xxxx'x telephone fax number (___.___.____).
2. The operator at the Facility shall, upon receipt of the faxed Dispatch
Notice, sign and date the form in the spaces indicated. The operator shall
then confirm receipt by sending a fax of the form with the operator's
signature to CPS at CPS's telephone fax number (000-000-0000).
3. The operator will initiate the actions necessary to implement the dispatch
requirements given on the Dispatch Notice .
4. The minimum Dispatch Notification lead times for the Facility for the period
April through November and Standby Periods are:
(a) Continued operation with both combustion turbines and the steam
turbine already paralleled and released for loading requires one
(1) hour.
(b) A Hot Start with one combustion turbine and the steam turbine
already paralleled and the second combustion turbine shut down
requires one (1) hour advance notice and an additional one and one half
(1 1/2) hour to load to the Dependable Capacity of the Facility. The
minimum run time for a Hot Start is one (1) hour.
(c) A Warm Start with all turbines shut down less than eight (8) hours
requires four (4) hours advance notice and an additional two (2)
hours and
C-2
69
thirty (30) minutes to load to the Dependable Capacity of the Facility.
The minimum run time for a Warm Start is two (2) hours.
(d) A Cold Start with all turbines shut down for more than eight (8)
hours requires eight (8) hours advance notice and an additional five
(5) hours to load to the Dependable Capacity of the Facility. The
minimum run time for a Cold Start is two (2) hours.
5. The minimum Dispatch Notification lead times for the Facility for the
period December through March:
(a) For a Cold Start of the Facility, seventy-two (72) hours.
(b) As soon as reasonably practicable, but not later than 12:00 P.M. of the day
prior to the first day of the Dispatch period, Xxxx shall provide CPS its
anticipated hourly Incremental Station Electric and Gas Costs, which shall
be defined as the actual costs of electric energy and natural gas incurred
by Xxxx to maintain the Facility's readiness to operate in cold
temperatures in conformance with Exhibit C, Section 4 ("Incremental Station
Electric and Gas Costs").
(c) Prior to the end of a Dispatch Period, CPS shall notify Xxxx of the amount
of consecutive hours, beginning with the first hour following the Dispatch
Period, for which it agrees to reimburse Xxxx for its Incremental Station
Electric and Gas Costs ("Standby Period").
(d) During such Standby Period, CPS shall have the right to Dispatch the
Facility in accordance with Exhibit C, Section 4.
(e) In the event, that CPS, either (1) elects not to reimburse Xxxx for its
Incremental Station Electric and Gas Costs or (2) a Standby Period
terminates, the subsequent Cold Start of the Facility Start-Up Notification
Lead Time shall be seventy-two (72) hours.
Procedure for Outage Notice and Confirmation of Receipt
1. The Facility operator will complete the Outage Notice (form attached in
Exhibit D) including all of the information required on the form for any
outage of the Facility. If information provided for on the form is not
required for the Outage Notification, then those information spaces shall
be marked "n/a". The person originating the Outage Notice shall sign and
date the form and fax the Outage Notice to CPS at CPS' telephone fax number
(000-000-0000).
C-3
70
2. The dispatcher at CPS shall, upon receipt of the faxed Outage Notice, sign
and date the form in the spaces indicated. The dispatcher shall then
confirm receipt by sending a fax of the signed form to Xxxx Street
Generating Station at Xxxx'x telephone fax number (___.___.____).
C-4
71
EXHIBIT D
FORM OF DISPATCH NOTICE
Complete one form for each dispatch day
Date: Fax to: Xxxx Street Generating Station
------------ 00 Xxxx Xxxxxx
Time: Xxxx Xxxxxxxx, XX 00000
------------ Fax No.______________
Page: of
------------
Date of Dispatch:
------------------
Type of Dispatch (See Exhibit C, Operating Procedures and Operating Limits)
Cold Startup (8 hours advance notice required and 2 hour minimum run time)
------
Warm Startup (4 hours advance notice required and 2 hour minimum run time)
------
Hot Startup (1 hour advance notice required and 1 hour minimum run time)
------
Continuation of current operations (1 1/2 hour advance notice required)
------
Hour Fuel Load MVA Power Factor Steam Flow
---------------------------------------------------------------
0:00
-----------------------------------------------------
1:00
-----------------------------------------------------
2:00
-----------------------------------------------------
3:00
-----------------------------------------------------
4:00
-----------------------------------------------------
5:00
-----------------------------------------------------
6:00
-----------------------------------------------------
7:00
-----------------------------------------------------
8:00
-----------------------------------------------------
9:00
-----------------------------------------------------
10:00
-----------------------------------------------------
11:00
-----------------------------------------------------
12:00
-----------------------------------------------------
13:00
-----------------------------------------------------
14:00
-----------------------------------------------------
15:00
-----------------------------------------------------
16:00
-----------------------------------------------------
17:00
-----------------------------------------------------
18:00
-----------------------------------------------------
19:00
-----------------------------------------------------
20:00
-----------------------------------------------------
21:00
-----------------------------------------------------
22:00
-----------------------------------------------------
23:00
-----------------------------------------------------
Signed: Date:
----------------------- ------------------
Constellation Power Source
D-1
72
Signed: Date:
--------------------------- ------------------
Xxxx Street Generating Station
Form of Outage Notice
Date: Fax to: Constellation Power Source
------------ 000 Xxxxxx Xxxxx, Xxxxx 000
Time: Xxxxxxxxx, XX 00000
------------ Fax No. 000.000.0000
Page: of
------------
Date of Outage:
---------------
Type of Outage
Scheduled Maintenance (Tune-up, HRSG, Hot Section, Major)
------
Maintenance Outage
------
Forced Outage
------
Test (on-line)
------
Description of Outage:
------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Estimated Duration:
---------------------------------------------------------
Special Requirements:
-------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Signed: Date:
----------------------- ------------------
Constellation Power Source
Signed: Date:
--------------------------- ------------------
Xxxx Xxxxxx Xxxxxxxxxx Xxxxxxx
X-0
00
EXHIBIT D
FUEL SPECIFICATIONS
FUEL OIL
Typical Range
------- -----
Heating Value, Btu/gal. HHV 139,000 137,000-140,000
API Gravity 30
Pour Point, Degrees F 0 0 to 10
Flash Point, Degrees F, min. 100 100 to 130
Distillation temperature, Degrees F
at 50% vol. recovery 540
at 90% vol. recovery 640
at end point 680
Carbon residue on 10% bottoms,
wt % max. 0.35 below 0.35
Nitrogen, wt % max. 0.025 below 0.030
Sulfur, wt % max. 0.3
Corrosion, 3 hr @ 122 degrees F 1 below 1
Vanadium, ppw, max. 0.5 below 0.5
Sodium + potassium + lithium
ppmw, max. 0.2 below 0.2
Calcium, ppmw, max. 2.0 below 2.0
Lead, ppmw, max. 1.0 below 1.0
Ash, ppmw, max. 50 below 100
Water & sediment, vol % max. 0.05 below 0.05
Filterable dirt, mg/100ml, max. 10 below 10
E-1
74
NATURAL GAS
--------------------------------------------------------
Btu/scf, HHV +/- 5% 1,047*
Btu/Pound, HHV +/- 5% 20,996
--------------------------------------------------------
* Subject to normal variations of merchantable pipeline quality gas as defined
in the New York ____________ .
X-0
00
XXXXXXX X
HEAT RATE DETERMINATION PROCEDURES
The determination of Heat Rate for purposes of the Annual Heat Rate Guarantee
shall be based on the metered Facility Fuel input and metered delivered
electric output, during On-Peak Hours when the Facility is operating at eighty
(80) percent or greater of full-load operation. Heat Rate shall be expressed as
Btu/kwh.
Heat Rate shall be calculated on a daily basis and reported monthly. Fuel used
in the calculation of the Facility Heat Rate shall not include Start-up Fuel.
Electricity output shall be corrected for a minimum of eighty (80) percent of
full-load operation and reduced for delivered kilowatt-hours associated with
the production and delivery of Market Steam.
The Annual Heat Rate for purposes of the Annual Heat Rate Guarantee shall be
the average of all of the daily Heat Rate calculations. There shall be no bonus
pursuant to Section 7.3.3 for an Annual Heat Rate which is equal to or greater
than 7,750 Btu/kwh and no damages pursuant to Section 7.3.2 for an Annual Heat
Rate which is equal to or less than 8,250 Btu/kwh.
Bonus for an Annual Heat Rate of less than 7,750 Btu/kwh shall be equal to the
following (determined on a monthly basis): (7,750 Btu/kwh - Annual Heat Rate) X
kwhs generated for the month X average monthly Fuel cost in $/mmBtu. Total
yearly bonus shall be the sum of the foregoing monthly calculations for each
month of the Contract Year.
Damages for an Annual Heat Rate of greater than 8,250 Btu/kwh shall be equal to
the following (determined on a monthly basis): (Annual Heat Rate - 8,250
Btu/kwh) X kwhs generated for the month X average monthly Fuel cost in $/mmBtu.
Subject to the limitations set forth in Section 16.1, total annual damages
shall be the sum of the foregoing monthly calculations for each month of the
Contract Year.
Fuel cost used to determine Bonus or Damages shall be that actually incurred by
CPS during the period.
F-1
76
EXHIBIT G
INSURANCE REQUIREMENTS
Xxxx shall maintain the following insurance coverage with appropriate
deductibles:
(a) Workers compensation insurance covering Operator's employees as required by
Law and employer's liability insurance with a limit of $1,000,000;
(b) Automobile bodily injury and property damage liability insurance covering
automobiles owned, non-owned or hired by Operator of $1,000,000 combined
single limit per occurrence; and
(c) Physical damage insurance for Operator's automobiles, whether leased, owned
or hired by Operator and/or its employees.
(d) Commercial general liability insurance covering personal injury and damage
to property of third parties, including blanket contractual, broad-form
property damage, cross-liability for named or additional insured,
independent contractor coverage and XCU hazards, with reasonable
deductibles and a limit of not less than $1,000,000 per occurrence and
$2,000,000 in the aggregate per location;
(e) Umbrella liability insurance in excess of the insurance described in
Section (d) will be carried in an aggregate amount of $11,000,000; and
(f) Permanent property insurance for the full replacement value of the
Facility, including boiler and machinery, business interruption and other
first party property-related coverages in amounts deemed necessary and
appropriate by Owner.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1.0 DEFINITIONS AND INTERPRETATION...................................2
1.1 Defined Terms.............................................................2
1.2 Construction of Terms....................................................13
ARTICLE 2.0 CONTRACT DOCUMENTS...............................................14
2.1 Documents Included.......................................................14
2.3 Entire Agreement and Amendments..........................................14
ARTICLE 3.0 TERM OF AGREEMENT................................................15
ARTICLE 4.0 PURCHASE AND SALE OF CAPACITY AND SERVICES.......................15
4.1 Capacity.................................................................15
4.2 Services.................................................................15
4.3 Exclusive Nature of Agreement............................................15
ARTICLE 5.0 DEPENDABLE CAPACITY; AVAILABILITY................................16
5.1 Dependable Capacity and Maintenance......................................16
5.2 No Reduction in Dependable Capacity......................................16
5.3 Guaranteed On-Peak Dispatch Availability.................................16
5.4 Off-Peak Ability.........................................................17
ARTICLE 6.0 DISPATCH.........................................................18
6.1 Dispatch of the Facility by CPS..........................................17
6.2 Dispatch Period and Start-Up.............................................18
6.3 Electric Specifications and Delivery.....................................18
6.3.1 Specifications....................................................18
6.3.2 Receipt...........................................................18
6.4. Steam Production........................................................19
6.4.1 Fuel Conversion to Steam..........................................19
6.4.2. Receipt of Steam.................................................19
6.5 Facility Utilization Plan................................................20
FUEL AND HEAT RATE...........................................................20
7.1 Gas......................................................................20
7.1.1 Delivery..........................................................20
7.1.2 Specification and Quality.........................................21
7.1.3 Measurement.......................................................21
7.2 Fuel Oil.................................................................21
7.2.1 Delivery..........................................................21
7.2.2 Specification and Quality.........................................21
7.2.3 Measurement.......................................................21
7.3 Annual Heat Rate Guarantee...............................................22
7.3.1 Annual Average Heat Rate..........................................22
7.3.2 Remedy for Failure to Achieve Annual Heat Rate Guarantee..........22
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TABLE OF CONTENTS
PAGE
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7.3.3 Annual Heat Rate Bonus............................................22
ARTICLE 8.0 TITLE AND RISK OF LOSS...........................................23
8.1 Title to Fuel............................................................23
8.2 Risk of Loss and Indemnity...............................................23
8.2.1 General...........................................................23
8.2.2 Risk of Non-Conforming Fuel.......................................23
ARTICLE 9.0 METERING.........................................................24
9.1 Output Metering Equipment................................................24
9.1.1 Installation and Ownership........................................24
9.1.2 Maintenance etc...................................................24
9.2 Fuel Metering Equipment..................................................25
9.2.1 Installation and Ownership........................................25
9.2.2 Maintenance etc...................................................25
9.3 Check Meters.............................................................25
9.4 Access...................................................................26
9.5 Testing and Adjustment...................................................26
ARTICLE 10.0 OPERATION AND MAINTENANCE.......................................26
10.1 Operation and Maintenance Obligation....................................26
10.2 Outages.................................................................27
10.3 Access..................................................................27
10.4 Maintenance of Records..................................................27
ARTICLE 11.0 PRICE AND PAYMENT...............................................28
11.1 Contract Price..........................................................28
11.1.1 Fixed Market Output Payment......................................28
11.1.2 Variable Market Output Payment...................................28
11.1.3 Additional Start-Up Fee..........................................29
11.1.4 Market Steam Reimbursable Costs..................................29
11.1.5 Availability Adjustment to Fixed Market Output Payment...........29
11.2 Invoicing and Payment...................................................31
11.2.1 Monthly and Semi-annual Statements...............................31
11.2.2 Payment..........................................................32
11.2.3 Late Payments and Disputed Invoices..............................32
11.2.4 Interest.........................................................32
11.3 Adjustments and Audit...................................................33
11.3.1 Adjustment.......................................................33
11.3.2 Audit............................................................33
ARTICLE 12.0 INDEMNITIES.....................................................34
12.1 General Indemnity.......................................................34
12.2 Employee Claims.........................................................34
12.3 Taxes...................................................................35
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12.3.1 CPS Taxes........................................................35
12.3.2 Xxxx Taxes.......................................................35
12.3.3 Exemptions.......................................................35
12.4 Environmental Indemnity.................................................36
12.5 Notice of Claim.........................................................36
12.6 Payment.................................................................37
12.7 Survival................................................................37
ARTICLE 13.0 INSURANCE.......................................................38
13.1 Xxxx Insurance..........................................................38
13.2 Requirements of Xxxx Insurance..........................................38
13.3 Payment of Deductibles..................................................39
13.4 Certificates of Insurance...............................................39
13.5 Nonwaiver...............................................................39
ARTICLE 14.0 FORCE MAJEURE...................................................40
14.1 Excused Performance.....................................................40
14.2 Exclusions..............................................................40
14.3 Burden of Proof.........................................................41
14.4 Extended Force Majeure..................................................41
ARTICLE 15.0 DEFAULT AND EARLY TERMINATION...................................42
15.1 Termination for Default.................................................42
15.1.1 Event of Default.................................................42
15.1.2 Remedies.........................................................43
15.1.3 Remedies Cumulative..............................................43
15.2 Special Termination for Cause by CPS.........ERROR! BOOKMARK NOT DEFINED.
15.2.1 In General.............................ERROR! BOOKMARK NOT DEFINED.
15.2.2 Right to Void Termination Election.....ERROR! BOOKMARK NOT DEFINED.
15.2.3 Liquidated Damages on Termination......ERROR! BOOKMARK NOT DEFINED.
15.3 Optional Termination by CPS.............................................44
15.4 Termination for Failure of Effective Date to Occur......................45
ARTICLE 16.0 LIABILITY.......................................................46
16.1 Limitation of Availability Adjustment and Heat Rate Damages.............46
16.2 Aggregate Yearly Limit of Liability.....................................46
16.3 Waiver of Consequential Damages.........................................46
16.4 Intent..................................................................46
16.5 Disclaimer..............................................................47
ARTICLE 17.0 DISPUTE RESOLUTION..............................................48
17.1 Negotiation of Disputes.................................................48
17.1.1 Disputes Not Involving An Event of Default.......................48
17.1.2 Disputes Involving an Event of Default...........................48
17.2 Arbitration.............................................................49
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PAGE
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17.2.1 Procedures.......................................................49
17.2.2 Applicable Law and Arbitration Act...............................50
17.3 Pendency of Dispute.....................................................51
ARTICLE 18.0 XXXX REPRESENTATIONS AND COVENANTS..............................51
18.1 Standing................................................................51
18.2 No Violation of Law; Litigation.........................................51
18.3 Licenses................................................................52
18.4 No Breach...............................................................52
18.5 Authority, etc..........................................................52
18.6 Assets and Business.....................................................52
18.7 Compliance with Law.....................................................52
ARTICLE 19.0 CPS REPRESENTATIONS AND COVENANTS...............................53
19.1 Standing................................................................53
19.2 No Violation of Law; Litigation.........................................53
19.3 Licenses................................................................53
19.4 No Breach...............................................................53
19.5 Authority, etc..........................................................54
19.6 Compliance with Law.....................................................54
ARTICLE 20.0 ASSIGNMENT......................................................54
20.1 Agreement Binding......................................................54
20.2 Assignment..............................................................54
20.3 Facility Lender Requested Documents.....................................54
ARTICLE 21.0 PROPRIETARY & CONFIDENTIAL INFORMATION..........................55
21.1 Non-Disclosure Obligation...............................................55
21.2 Required Disclosure.....................................................55
21.3 Term of Obligation......................................................56
ARTICLE 22.0 NOTICES.........................................................56
22.1 Writing.................................................................56
22.2 Timing of Receipt.......................................................58
ARTICLE 23.0 MISCELLANEOUS PROVISIONS........................................58
23.1 Conditions Precedent....................................................58
23.2 Scheduling Coordinator..................................................59
23.3 Joint Effort............................................................59
23.4 Captions................................................................59
23.5 Severability............................................................59
23.6 No Waiver...............................................................59
23.7 Applicable Law..........................................................59
23.8 Counterparts............................................................60
23.9 Survival................................................................60
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TABLE OF CONTENTS
PAGE
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23.10 Further Assurances.....................................................60
23.11 Independent Contractor, etc............................................60
23.12 Third Parties..........................................................60
23.13 Announcements..........................................................60
23.14 Expenses...............................................................60
23.15 No Precedential Value..................................................60
EXHIBITS
Exhibit A - Description of Facility and Designation of
Delivery Points
Exhibit B - Allowances for Scheduled Maintenance
Exhibit C - Facility Operating Procedures and Operating
Limitations
Exhibit D - Form of Dispatch Notice
Exhibit E - Fuel Specifications
Exhibit F - Heat Rate Determination Procedures
Exhibit G - Insurance Requirements
v
