REDACTED VERSION
Wholesale Standard Offer
Service Agreement
between
Blackstone Valley Electric Company
Eastern Edison Company
Newport Electric Corporation
and
Constellation Power Source, Inc.
December 21, 1998
TABLE OF CONTENTS
Page
ARTICLE 1. Definitions 2
ARTICLE 2. Term; Required Approvals; Other Conditions 4
ARTICLE 3. Supplier Responsibilities 5
ARTICLE 4. Companies' Responsibilities 6
ARTICLE 5. Price 6
ARTICLE 6. Billing and Payments 7
ARTICLE 7. 8
ARTICLE 8. Events of Default, Liability, Relationship of the Companies 10
ARTICLE 9. Termination 13
ARTICLE 10. Force Majeure 13
ARTICLE 11. Assignment 14
ARTICLE 12. Successors and Assigns 14
ARTICLE 13. Resolution of Disputes 14
ARTICLE 14. Interpretation 16
ARTICLE 15. Severability of Provisions 16
ARTICLE 16. Accounts and Records 16
ARTICLE 17. Limitations on Liability and Indemnification 16
ARTICLE 18. Regulation 17
ARTICLE 19. Notices 17
ARTICLE 20. Miscellaneous 18
Appendix A
Appendix B
WHOLESALE STANDARD OFFER SERVICE AGREEMENT
This Wholesale Standard Offer Service Agreement ("Agreement"), is made and
entered into this 21st day of December, 1998, between Eastern Edison Company,
("Eastern") a Massachusetts Corporation; Blackstone Valley Electric Company
("Blackstone"), a Rh ode Island Corporation; and Newport Electric Corporation
("Newport"), a Rhode Island Corporation (referred to individually as the
"Company" or collectively as the "Companies"), on the one hand, and
Constellation Power Source, Inc., a Delaware corporation ("Supplier"), on the
other hand.
WHEREAS, the Companies are required to provide firm all-requirements service to
any retail customer that is eligible for and is taking Standard Offer Service
in accordance with the Settlement Agreements; and
WHEREAS, this Agreement provides for the transfer, from the Companies to
Supplier of the responsibility for providing firm all-requirements electric
service including capacity, energy, reserves, losses and other related services
necessary to serve a specified share of the Companies' aggregate load of retail
customers taking Standard Offer Service; and
WHEREAS, by entering into this Agreement, Supplier agrees to provide and the
Companies agree to receive and pay for electricity provided in accordance with
the terms and conditions of this Agreement and the applicable Appendices,
subject to any actions by any governmental bodies having regulatory
jurisdiction over services rendered hereunder.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements contained herein, Supplier and Companies agree to the terms and
conditions as set forth below:
ARTICLE 1. Definitions
Whenever used in this Agreement, the following terms shall have the following
meanings. In addition, except as otherwise expressly provided, where terms
used in this Agreement are defined in the Restated NEPOOL Agreement and not
otherwise defined he rein, such terms shall have the meanings given them in the
Restated NEPOOL Agreement.
"Affiliate" shall mean any other entity (other than an individual)
that, directly or indirectly, through one or more intermediaries, controls, or
is controlled by, or is under common control with, such entity. For purposes of
the foregoing the definition of "control" means the direct or indirect
ownership of more than seventy percent of the outstanding capital stock or
other equity interest having ordinary voting power.
"Agreement" shall mean this Agreement, including its Appendices as amended from
time to time.
"Commencement Date of Service" shall mean 12:00 am on the date after the
required regulatory approvals and consents have been obtained in accordance
with Section 2(b) and the condition set forth in Section 2(d) has been
satisfied.
"Contract Year" shall mean any calendar year, or in the case of 1999 part of a
calendar year, after the Commencement Date of Service in which Supplier is
scheduled to provide electricity to the Companies for Standard Offer Service.
"Companies' System" shall mean the electrical distribution systems of
Blackstone, Newport, Eastern, and/or the electrical transmission system of
Montaup, as applicable.
"Delivered Energy" shall mean the kilowatt-hours delivered to the meters of
those retail customers taking Standard Offer Service.
"Delivery Point" shall be any location on the NEPOOL PTF system or Companies'
System, as elected by Supplier.
"D.T.E." shall mean the Massachusetts Department of Telecommunications and
Energy or its successor state regulatory agency.
"Good Utility Practice" - Any of the applicable practices, methods and acts (i)
required by NEPOOL, the Northeast Power Coordinating Council, the North
American Electric Reliability Council, the ISO or the successor of any of them;
(ii) required by t he policies and standards of the D.T.E. relating to
emergency operations; or (iii) otherwise engaged in or approved by a
significant portion of the electric utility industry during the relevant time
period; which in each case in the exercise of reasonable judgment in light of
the facts known or that should have been known at the time a decision was made,
could have been expected to accomplish the desired result in a manner
consistent with law, regulation, safety, environmental protection, economy,
and expedition. Good utility practice is intended to be acceptable practices,
methods or acts generally accepted in the region, and is not intended to be
limited to the optimum practices, methods or acts to the exclusion of all
others.
"ISO" shall mean ISO New England, Inc., the independent system operator
established in accordance with the Restated NEPOOL Agreement, or its successor.
"NEPOOL" shall mean the New England Power Pool or its successor.
"Party" or "Parties" shall mean the Supplier and the Companies and their
respective successors and assigns.
"Price" shall mean the annual amount per kilowatt-hour to be paid for Delivered
Energy set forth in Article 5 with no variation for time-of-use, seasonality,
or any other factor except as specified in Article 5. The Companies or their
Standard Offer customers shall not be obligated under this Agreement for any
payments for Delivered Energy in addition to the payments made pursuant to
Article 5.
"PTF" shall mean the facilities categorized as Pool Transmission Facilities as
defined in the Restated NEPOOL Agreement.
"P.U.C." shall mean the Rhode Island Public Utilities Commission or its
successor state regulatory agency.
"Restated NEPOOL Agreement" shall mean the New England Power Pool Agreement
dated December 31, 1996, as amended from time to time, as it is in force at the
time the action in question is taken.
"Settlement Agreements" shall mean any agreement or agreements that have been
approved by the D.T.E. in Docket No. 96-24, P.U.C. in Docket No. 2514, and the
Federal Energy Regulatory Commission in Docket Nos. ER97-2800-000 and ER97-
3127-000, together with all conditions, terms and modifications imposed by
those agencies.
"Standard Offer Service" shall mean firm all-requirements electric service
(minute by minute, hour by hour, day by day) including, but not limited to, the
following products: energy, installed capability, operable capability,
reserves, and associated losses necessary to fulfill all NEPOOL and ISO
obligations as they may change from time to time associated with providing firm
all requirements power to the Companies' retail customers taking Standard Offer
Service in accordance with the Settlement Agreements. Such Standard Offer
Service shall include changes in customer demand for any reason, including, but
not limited to, seasonal factors, daily load fluctuations, increased or
decreased usage, demand side management activities, extremes in weather, and
other similar events.
"Standard Offer Wholesale Price" shall mean the stipulated stream of prices, in
cents per kilowatt-hour, that will be paid to Supplier for Delivered Energy, as
shown in Appendix A.
"Terms and Conditions for Suppliers" shall mean the Blackstone Valley Electric
Company and Newport Electric Corporation Terms and Conditions for Electric
Power Suppliers dated May 29, 1997 as approved by the P.U.C., or the Eastern
Edison Company Term s and Conditions for Competitive Suppliers as approved by
the D.T.E., as applicable. These Terms and Conditions may be revised, amended,
supplemented, or supplanted in whole or in part from time to time by the P.U.C.
or D.T.E. or as otherwise provided by law.
ARTICLE 2. Term; Required Approvals; Other Conditions
a) This Agreement shall be effective immediately upon execution by the Parties
and shall continue in effect until 12:00 midnight on December 31, 2009, unless
terminated sooner in accordance with Article 8 or 9. Delivery of Standard
Offer Service under this Agreement shall commence on the Commencement Date of
Service.
b) The Parties' obligations under this Agreement are subject to the receipt of
all federal, state or local government consents or approvals required for
consummation of the transactions contemplated hereby, including, without
limitation, a finding by the D.T.E. that Eastern's actions in regard to this
Agreement are in accordance with G.L. c. 164, 94A and 1B(b) and that this
Agreement may become effective, all such consents and approvals to be final and
no longer subject to rehearing, reconsideration or appeal. The Companies
shall pursue and acquire, prior to the Commencement Date of Service, and
maintain, all such regulatory consents and approvals. The Companies will be
responsible for and pay for all fees associated with obtaining such consents
and approvals, if any.
c) Supplier shall make any filings required of it, if any, with FERC in
accordance with the provisions of all applicable laws, rules and regulations.
Supplier will be responsible for and pay for all fees associated with such
required filings, if any .
d) In addition to the conditions set forth in Section 2(b), Supplier's
obligations under this Agreement shall be conditional upon receipt by Supplier
of an opinion from McDermott, Will & Emery, counsel for the Companies, dated as
of the Commencement Date of Service and satisfactory in form and substance to
Supplier and its counsel, to the effect that, among other things, each of the
Companies have duly authorized, executed and delivered this Agreement, this
Agreement is a valid, binding and enforceable obligation of each of the
Companies and no consent or approval of any governmental authority is necessary
for the consummation by any of the Companies of the transactions contemplated
by this Agreement.
e) In addition to the conditions set forth in Section 2(b), Companies'
obligations under this Agreement shall be conditional upon receipt by Companies
of an opinion from Hunton & Williams, counsel for the Supplier, dated as of the
Commencement Date o f Service and satisfactory in form and substance to
Companies and its counsel, to the effect that, among other things, Supplier has
duly authorized, executed and delivered this Agreement, this Agreement is a
valid, binding and enforceable obligation of the Supplier and no consent or
approval of any governmental authority is necessary for the consummation by
Supplier of the transactions contemplated by this Agreement.
ARTICLE 3. Supplier Responsibilities
Supplier shall, prior to the Commencement Date of Service, (i) be a member, in
good standing, of NEPOOL or its successor entity and maintain an own-load
dispatch or settlement account established in accordance with the rules and
criteria established by the ISO throughout the term of this agreement, or (ii)
have an agreement in place, for the full term of this Agreement, with a NEPOOL
member whereby the NEPOOL member agrees to include the load to be served by
Supplier under this Agreement in its own-load dispatch or settlement account.
Supplier shall sell and deliver to the Delivery Point and the Companies shall
receive and purchase that portion of the Companies' aggregate load attributed
to those customers taking Standard Offer Service determined in accordance with
Appendix A attached hereto.
As a provider of Standard Offer Service, Supplier is solely responsible for
satisfying all requirements and paying all costs incurred or to be incurred to
provide those generation-related services including, without limitation, all
costs or other requirements to furnish installed capability, operable
capability, energy, operating reserves, line losses, automatic generation
control, and other generation-related ancillary services associated with the
provision of its share of Standard Offer Service. Supplier is also solely
responsible for meeting any other requirements and paying any other cost now or
hereafter imposed by the ISO from time to time which are attributable to the
provision of Supplier's share of Standard Offer Service, as they m ay arise. If
the ISO or any successor entity or NEPOOL allocates any expenses or uplift
costs to the Standard Offer Service provided by the Supplier (on a load or peak
load basis or otherwise), the expenses or costs so allocated will be borne by
the Supplier alone without recourse to the Companies.
Supplier shall be responsible for all transmission and distribution losses
associated with the delivery of electricity supplied under this Agreement from
the sources of its supply to the meters of those customers taking Standard
Offer Service as determined based on the NEPOOL regional transmission tariff
and the Companies' estimation of distribution and non-PTF losses. The
Companies shall operate their respective distribution systems in accordance
with Good Utility Practice. The Companies shall arrange for and bill their
respective customers for NEPOOL regional network transmission service,
Montaup's local network service for transmission over non-PTF facilities and
the Companies' respective distribution service.
Supplier is responsible for any transmission wheeling costs and any
distribution wheeling costs, if any, associated with the delivery by Supplier
of Standard Offer Service to the NEPOOL PTF. If the NEPOOL control area
experiences congestion, Supplier will be responsible for any congestion costs
incurred in delivering power to the Delivery Point(s). In the event that
NEPOOL adopts a transmission congestion management approach assigning priority
rights or other benefits to transmission customers serving native load in the
congested area, then, if so requested by Supplier, the Companies shall assign
to the Supplier at no cost the proportional share of such priority rights or
other benefits associated with Seller's proportional share of Standard Offer
Service under this Agreement at such time. Supplier shall be responsible for
all transmission and distribution costs associated with the use of transmission
systems outside of NEPOOL and any local point-to-point transmission charges and
distribution charges incurred to deliver the power to the Delivery Point.
In the event that either the D.T.E. or the P.U.C. issue orders requiring the
Companies to implement uniform disclosure requirements that pertain to the
reporting of information regarding power plant emissions, fuel types, or labor
information for the sources of electricity used to supply Standard Offer
Service, the Supplier will provide, subject to any confidentiality obligations
to which it is bound, such information in a timely manner in an appropriate
form to enable the Companies to comply with such requirements.
ARTICLE 4. Companies' Responsibilities
To meet their NEPOOL obligations, the Companies shall report to the ISO
Supplier's share of hourly Standard Offer Service load, including distribution
and non-PTF losses. As required by NEPOOL, the Companies will make all
reasonable efforts to report to the ISO Supplier's hourly share of Standard
Offer Service load by 12:00 noon of the second following business day. In
making such reports, the Companies will estimate Supplier's share of Standard
Offer Service load based on the methods and procedures approved in Terms and
Conditions for Suppliers on file with the P.U.C. and D.T.E., as amended from
time to time.
As described in the Terms and Conditions for Suppliers, to determine Supplier's
share of Delivered Energy, at the end of each month, the Companies shall
aggregate Supplier's hourly Standard Offer Service loads as reported to the ISO
for each hour of the month. The Supplier's aggregate share of Standard Offer
Service, excluding losses, will be deemed to be the quantity of Delivered
Energy that Supplier provided for that month and is the unadjusted kWh amount
to be used for Billing and Payment as described in Article 6.
The Companies will periodically reconcile the Delivered Energy to actual meter
readings of those customers taking Standard Offer Service, as described in the
Terms and Conditions for Suppliers. The Companies will apply any resulting
billing adjustment (debit or credit) to Supplier's account no later than the
last day of the third month following the billing month.
ARTICLE 5. Price
For each kilowatt-hour of Delivered Energy that Supplier provides in each
month, as determined in accordance with Article 4 and the Terms and Conditions
for Suppliers, the Companies shall pay Supplier the applicable Price for the
month in cents per kilowatt-hour calculated as follows:
Price = Standard Offer Wholesale Price
+ Fuel Adjustment Factor
Where: Standard Offer Wholesale Price in cents per kilowatt hour is as defined
in Article 1 and shown in Appendix A, and
Fuel Adjustment Factor is a cents per kilowatt-hour adder based on the
incremental revenues collected, if any, attributed to the operation of the
Retail Standard Offer Fuel Index ("Fuel Index") mechanism in the Companies'
Standard Offer Service tariffs. The revenues attributed to the Fuel Index will
be fully allocated to suppliers in proportion to the Standard Offer Service
energy provided by each supplier for the applicable billing month through the
Fuel Adjustment Factor. The Fuel Index, and t he resulting Fuel Adjustment
Factor to be paid to Supplier, will be made subject to regulatory approval and
only to the extent that the Companies are allowed to collect such revenues from
their retail customers taking Standard Offer Service.
With the exception of any sales or gross receipt taxes which are required by
law to be paid by Standard Offer Service customers, the Price for Delivered
Energy as set forth herein includes all local, state, and federal taxes, fees
and levies applicable as of the date hereof. For any new taxes, fees and
levies, assessed with respect to the services provided by Supplier after the
Commencement Date of Service, the Companies will fully support and pursue in
good faith the recovery of any such new t ax, fee and levy imposed on Supplier
from the Companies' Standard Offer Service customers. To the extent such new
taxes, fees and levies are allowed to be recoverable by the Companies from
their Standard Offer Service customers, the Companies shall reimburse Supplier
for such generation related taxes, fees and levies paid by Supplier.
All Standard Offer Service delivered by Supplier to the Companies hereunder
shall be sales for resale, with the Companies reselling such Standard Offer
Service. On or before the Commencement Date of Service the Companies shall
obtain and provide Supplier with any resale certificates reasonably requested
by Supplier to evidence that the deliveries hereunder are sales for resale.
ARTICLE 6. Billing and Payments
Until reconciled with actual metered data pursuant to the Terms and Conditions
of Suppliers, computations by the Companies of the charges for the purposes of
billings hereunder shall be based on estimates of Supplier's Delivered Energy
in accordance with Article 4 and the Price as determined in accordance with
Article 5. The Companies shall calculate the amount payable to Supplier for a
given month on or before the twentieth (20th) day of the following month. The
calculation shall be provided to Supplier and shall show the total amount due
and payable for the previous month. Each bill shall be subject to adjustment
for any errors in arithmetic computation, estimating, reconciliation pursuant
to the Terms and Conditions of Suppliers or otherwise only to the extent
allowed by the terms of this Article 6.
On or before the last day of each month, Companies shall pay Supplier any
amounts due and payable for the Delivered Energy provided by Supplier in the
previous month ("Due Date"). Any amount remaining unpaid after the Due Date
shall bear interest at a rate equal to the lesser of (a) the per annum rate of
interest equal to the prime lending rate then in effect at the main office of
BankBoston or such other lending institution as agreed to by Companies and
Supplier and (b) the maximum rate permitted by applicable law, from the Due
Date to the date of payment by Companies.
If Supplier disputes the amount of any bill or payment, Supplier shall itemize
the basis for its dispute in a written notice to Companies within thirty (30)
days after the Due Date. Billing and payment disputes shall be handled in
accordance with the provisions of Article 13 of this Agreement. Upon final
resolution of the dispute, payment of any amount due to a Party under the terms
of the resolution shall be made within thirty (30) days of the date thereof,
together with interest from and after the original Due Date at the rate
specified in this Article.
The Companies may make retroactive adjustments to any billing for a period of
up to one year from the date of the original billing in order to reflect
differences in charges resulting from receipt of more accurate data. Supplier
may dispute such adjustment in writing within thirty (30) days of receipt of
the proposed adjustment.
ARTICLE 7. xx
ARTICLE 8. Events of Default, Liability, Relationship of the Companies
1) Unless excused by a Force Majeure as described in Article 10, each of the
following events shall be deemed to be an Event of Default hereunder:
a) Failure of any Company to pay when due any undisputed payment due to
Supplier and such failure shall continue for following the
receipt of written notice from the Supplier specifying the overdue amount.
b) Failure of Supplier, in a material respect, to comply with, observe, or
perform any covenant, representation or warranty or obligation under this
Agreement, and such failure is not cured or rectified within
after receipt of written notice thereof from the Companies.
c) Failure of any Company, in a material respect, to comply with, observe, or
perform any covenant, representation or warranty or obligation under this
Agreement, other than as described in (a) above, and such failure is not cured
or rectified within after receipt of written notice thereof from
the Supplier.
d) Failure of Supplier to maintain any of the security requirements outlined in
Article 7, and such failure is not cured or rectified within
after notice thereof from the Companies.
e) With respect to Supplier, any Company and/or the Companies, a custodian,
receiver, liquidator or trustee for such Party is appointed or takes possession
and such appointment or possession remains uncontested or in effect for more
than ; or the Party makes an assignment for the benefit of creditors
or admits in writing its inability to pay its debts as they mature; or the
Party is adjudicated as bankrupt or insolvent; or an order for relief is
entered under the Federal Bankruptcy Code against the Party; or any material
property of the Party is sequestered by court order and the order remains in
effect for more than ; or a petition is filed against the Party
under any bankruptcy, insolvency, reorganization, arrangement
, readjustment of debt, dissolution or liquidation law of any jurisdictions,
whether now or subsequently in effect, and is not stayed or dismissed within
after filing; or the Party files a petition in voluntary bankruptcy or seeking
relief under any provision of any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or subsequently in effect; or the Party consents to
the filing of any petition against it under any such law; or the Party
consents to the appointment or taking possession by a custodian, receiver,
trustee or liquidator of the Party or any material portion of its property.
2) Upon the occurrence of an Event of Default by any of the Companies, such
Company shall be liable to the Supplier for any direct damages resulting from
the Event of Default. Such amount shall include the positive difference, if
any, obtained by subtracting the per unit Sales Price from the per unit Price
established in Article 5. The positive difference shall be applied to each
kilowatthour that Companies fail to receive.
"Sales Price" shall mean the price at which the Supplier acting in a
commercially reasonable manner resells each component of Standard Offer Service
not received by the Companies, minus any additional transmission and NEPOOL
charges incurred by the Supplier as a result of the Companies' default. The
Parties hereby stipulate that sales at the applicable NEPOOL spot market prices
will be deemed commercially reasonable.
The Parties expressly agree that the amounts set forth in this Article 8(2) do
not constitute the Supplier's sole remedy. In addition to the amounts
established in this Article 8(2) above, the Companies shall be liable to the
Supplier for any additional direct damages resulting from an Event of Default
associated with reasonable additional administrative and legal expenses
incurred as a result of any Company's failure to perform. Supplier shall take
all commercially reasonable measures to mitigate such direct damages. In
addition, the Supplier may unconditionally terminate this Agreement by giving
written notice to the Companies, such termination to be effective as of the
date specified in such notice. Notwithstanding any other provision of this
Agreement to the contrary, the rights and obligations of the Companies, herein
are several and not joint. Each Company's share of such rights and obligations
shall be determined by the portion of its monthly Standard Offer Service
requirements represented as a percentage of the Companies' total Standard
Offer Service requirements during the period of time in which the right,
obligation or liability in questions arose, accrued and/or matured, and in the
event of difficulty or a dispute in determining the appropriate period of time,
during the entire duration of the Agreement.
3) Upon the occurrence of an Event of Default by the Supplier, the Supplier
shall be liable to the Companies for any direct damages resulting from the
Event of Default. Such amount shall include the positive difference, if any,
obtained by subtracting the per unit Price established in Article 5, from the
per unit Replacement Price. The positive difference shall be applied to each
kilowatthour that Supplier fails to deliver.
"Replacement Price" shall mean the price at which the Companies acting in a
commercially reasonable manner purchase substitute Standard Offer Service not
delivered by Supplier, plus any additional transmission and NEPOOL charges
incurred by the Companies as a result of Supplier's default. The Parties
hereby stipulate that purchases at the applicable NEPOOL spot market prices
will be deemed commercially reasonable.
The Parties expressly agree that the amounts set forth in this Article 8(3) do
not constitute the Companies' sole remedy. In addition to the amounts
established in this Article 8(3) above, the Supplier shall be liable to the
Companies for an y additional direct damages resulting from an Event of Default
associated with reasonable additional administrative and legal expenses
incurred as a result of Supplier's failure to perform. The Companies shall take
all commercially reasonable measure s to mitigate such direct damages. In
addition, the Companies may unconditionally terminate this Agreement by giving
written notice to the Supplier, such termination to be effective as of the date
specified in such notice. The Parties expressly agree that the Companies may
exercise their rights under the financial surety provided under Article 7 to
collect any and all amounts owed and due from the Supplier resulting under this
Article 8.
(4) Nothing in this Article 8 shall be construed to limit the right of any
Party to seek any remedies for a breach specified in this Agreement by the
other Party or Parties of its or their obligations hereunder, whether or not
such breach results in a termination of this Agreement under this Article 8 and
whether or not such breach is cured after the times set forth for such cure in
Article 8(1), or during any period during which the non-breaching Party elects
not to exercise its right to terminate this Agreement.
ARTICLE 9. Termination
In addition to the termination rights for an Event of Default provided in
Article 8, the Companies may terminate this Agreement if Supplier's share of
Standard Offer Service load is less than one (1) megawatt for two consecutive
months.
ARTICLE 10. Force Majeure
As used in this Agreement, "Force Majeure" means any cause beyond the
reasonable control of, and without the fault or negligence of, the Party
claiming Force Majeure. A Force Majeure shall include, without limitation,
sabotage, strikes, riots or civil disturbance, acts of God, acts of a public
enemy, drought, earthquake, flood, explosion, fire, lightning, landslide, or
any similar cataclysmic occurrence, or appropriation or diversion of
electricity by sale or order of any governmental authority having jurisdiction
thereof, but only if and to the extent that the event adversely affects the
availability of the transmission or distribution facilities of NEPOOL and/or
its participants, the Companies or an affiliate of the Companies, and such
affected facilities are necessary to deliver Standard Offer Service electricity
to the Standard Offer Service customers.
An event that affects the availability or cost of operating any transmission or
distribution facilities outside the NEPOOL control area, affects the
availability or cost of operating a generating facility, or any event that
merely causes an economic hardship to either Party shall not be deemed a Force
Majeure.
If either Party is rendered wholly or partly unable to perform its obligations
under this Agreement because of Force Majeure as defined above, that Party
shall be excused from whatever performance is affected by the Force Majeure, to
the extent so affected, provided that:
a) The non-performing Party promptly, but in no case longer than five (5)
working days after the occurrence of the Force Majeure, gives the other Party
written notice describing the particulars of the occurrence;
b) The suspension of performance shall be of no greater scope and of no longer
duration than is reasonably required by the Force Majeure;
c) The non-performing Party uses reasonable efforts to remedy its inability to
perform and expeditiously takes reasonable action to correct or cure the event
or condition; and
d) The non-performing Party exercises all reasonable efforts to mitigate or
limit damages to the other Party. With respect to the Supplier, this shall
mean that Supplier must purchase, at its own expense, electricity from the
NEPOOL market to meet its obligations under this Agreement, to the extent such
electricity is available and deliverable.
ARTICLE 11. Assignment
Unless mutually agreed to by the Parties, no assignment, pledge, or transfer of
this Agreement shall be made by any Party without the prior written consent of
the other Party, which shall not be unreasonably withheld, provided, however,
that no prior written consent shall be required for (i) the assignment, pledge
or other transfer to another company or Affiliate in the same holding company
system as the assignor, pledgor or transferor, provided, the assignee, pledgee
or transferee expressly assumes and demonstrates, to the reasonable
satisfaction of the non-assigning Party, that it can meet the obligations of
the assignor, pledgor or transferor under this Agreement, or (ii) the
transfer, incident to a merger or consolidation with, or transfer of all (or
substantially all) of the assets of the transferor, to another person or
business entity, provided, such transferee expressly assumes, and demonstrates
to the reasonable satisfaction of the non-assigning party that it can meet,
all t he obligations of the assignor, pledgor or transferor under this
Agreement and provided, however, that either Party may, without the consent of
the other Party (and without relieving itself from liability hereunder),
transfer, sell, pledge, encumber or assign such Party's rights to the
accounts, revenues or proceeds hereof in connection with any financing or
other financial arrangements.
ARTICLE 12. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the
Parties and their successors and assignees.
ARTICLE 13. Resolution of Disputes
Subject to Article 8(3), all disputes between the Companies and Supplier
resulting from or arising out of performance under this Agreement shall be
referred to a senior representative of the Companies with authority to settle,
designated by t he Companies, and a senior representative of Supplier with
authority to settle, designated by Supplier, for resolution on an informal,
face-to-face basis as promptly as practicable. The Parties agree that such
informal discussion shall be conducted in good faith. The discussions between
such representatives shall be considered "settlement talks" under Rule 403 of
the Federal Rules of Evidence or analogous Massachusetts rules or practices and
such discussions shall have no evidentiary value provided, however, that
either Party may introduce evidence of matters discussed in such settlement
talks, if the facts and documents reflecting such matters are discovered or
otherwise come into a Party's possession independent of such settlement talks .
In the event the designated senior representatives are unable to resolve the
dispute within thirty (30) days, or such other period as the Companies and the
Supplier may jointly agree upon, such dispute may be submitted to arbitration
and resolved in accordance with the arbitration procedure set forth herein if
the Companies and Supplier jointly agree to submit it to arbitration. For any
dispute or claim arising out of or relating to any charges incurred under this
Agreement having a value less than or equivalent to $100,000, such arbitration
shall be mandatory. Nothing in this Article 13 shall prevent the Companies
from issuing, pursuant to Sections 1(a) and (3) of Article 8, notice of failure
to comply with, observe or perform this Agreement.
The arbitration shall be conducted before a single neutral arbitrator or
arbitrator panel appointed by the Parties. If the Parties agree upon a single
arbitrator within ten (10) days of the referral of the dispute to arbitration,
that arbitrator shall serve, otherwise the Companies and Supplier shall each
choose one arbitrator, who shall serve on a three-member arbitration panel. The
two arbitrators so chosen shall within twenty (20) days select a third
arbitrator to act as chairman of the arbitration panel. If the two arbitrators
are unable to select a third arbitrator, each arbitrator shall select three
candidates. A list of the six candidates, along with their resumes, shall be
provided in alphabetical order, with no indication of the arbitrator who
selected such candidate or the Party who selected the arbitrator who selected
such candidate, to the American Arbitration Association ("AAA"), who will
select one candidate. If that candidate is unable or unwilling to serve, AAA
shall select another candidate. This process will be repeated until a third
arbitrator is selected or the list of candidates is exhausted. If the list of
candidates is exhausted, the arbitrators shall submit a new list of candidates
and the process set forth above shall be repeated a second time. In all cases,
the arbitrator(s) shall be knowledgeable in electric utility matters, including
electricity transmission and bulk power issues, and shall not have any current
or past substantial business or financial relationships with any Party to the
arbitration or any affiliate of such Party.
Except as otherwise provided herein, the arbitrator(s), shall generally conduct
the arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. There shall be no formal discovery conducted
in connection with the arbitration, except as specifically authorized by a
vote of the panel. The Parties shall exchange witness lists and copies of any
exhibits that they intend to utilize in their direct presentations at any
hearing before the arbitrator(s) at l east ten (10) days prior to such hearing,
along with any other information or documents specifically requested by the
arbitrator(s) prior to the hearing. Unless otherwise agreed, the arbitrator(s)
shall render a decision within ninety (90) days of h is, her, or their
appointment and shall notify the Parties in writing of such decision and the
reasons therefor, and shall make an award apportioning the payment of the costs
and expenses of arbitration, including panel costs, among the Parties,
provided, however, that each Party shall bear the costs and expenses of its own
attorneys, expert witnesses and consultants. The arbitrator(s) shall be
authorized only to interpret and apply the provisions of this Agreement and
shall have no power to am end or modify this Agreement in any manner. The
decision of the arbitrator(s) shall be final and binding upon the Parties, and
judgment on the award may be entered in any court having jurisdiction. The
decision of the arbitrator(s) may be appealed solely on the grounds that the
conduct of the arbitrator(s), or the decision itself, violated the standards
required under the Federal Arbitration Act (9 U.S.C.A. Sect. 1 et. al.) and/or
The Uniform Arbitration Act, as adopted in Massachusetts (M.G.L . c. 251, Sect.
1 et seq.).
ARTICLE 14. Interpretation
The interpretation and performance of this Agreement shall be in accordance
with and shall be controlled by the laws of the Commonwealth of Massachusetts,
without regard to Massachusetts conflict of law principles.
ARTICLE 15. Severability of Provisions
Subject to the provisions of Article 13, a holding by any court having
jurisdiction that any provision of this Agreement is invalid or unenforceable
shall not result in invalidation or unenforceability of the entire Agreement
but all remaining terms shall remain in full force and effect.
ARTICLE 16. Accounts and Records
The Companies and Supplier shall keep complete and accurate records of their
operations hereunder and shall maintain such data for a period of at least two
(2) years after final billing. The Companies and Supplier shall have the
right, during normal business hours, to examine and inspect all such records
insofar as may be necessary for the purpose of ascertaining the reasonableness
and accuracy of all relevant data, estimates or statement of charges
associated with service hereunder.
ARTICLE 17. Limitations on Liability and Indemnification
Each Party agrees to indemnify, defend, and hold the other Party (including the
other Party's Affiliates, trustees, directors, board members, officers,
employees, and agents) harmless from and against any and all damages, costs,
claims, liabilities, actions or proceedings arising from or claimed to have
arisen from the wrongful acts or omissions of the indemnifying Party's
employees or agents, unless caused by an act of negligence or willful
misconduct by the indemnified Party (including the Party's Affiliates,
trustees, directors, board members, officers, employees or agents).
The Parties hereby waive and release the other Parties as well as each of the
other Party's Affiliates, trustees, directors, officers, employees, and agents
from any liability, claim, or action arising from damage to its property due to
the performance of this Agreement.
To the fullest extent permissible by law, neither the Companies nor Seller, nor
their respective officers, directors, agents, employees, parent or Affiliates,
successors or assigns, or their respective officers, directors, agents or
employees, successors or assigns, shall be liable to the other party or its
parent, subsidiaries, Affiliates, officers, directors, agents, employees,
successors or assigns, for claims, suits, actions or causes of action for
incidental, indirect, special, punitive, multiple or consequential damages
(including attorneys' fees or litigation costs) connected with or resulting
from performance or non-performance of the Agreement, or any actions undertaken
in connection with or related to this Agreement, including without limitation
any such damages which are based upon causes of action for breach of contract,
tort (including negligence and misrepresentation), breach of warranty, strict
liability, Massachusetts General Laws Chapter 93A, statute, operation of law,
or any other theory of recovery. The provisions of this Section 17 shall apply
regardless of fault and shall survive termination, cancellation, suspension,
completion or expiration of this Agreement.
ARTICLE 18. Regulation
1) This Agreement and all rights, obligations, and performances of the Parties
hereunder, are subject to all applicable state and federal laws, and to all
duly promulgated orders and other duly authorized actions of governmental
authority having jurisdiction, provided, however, that this Agreement shall
not be subject to change through unilateral application under Sections 205 and
206 of the Federal Power Act.
2) This Agreement is intended to comply with all NEPOOL Criteria, Rules, and
Standards ("Rules"). If, during the term of this Agreement, the Restated
NEPOOL Agreement is terminated or amended in a manner that would eliminate or
alter a Rule affecting a right or obligation of a Party hereunder, or if such
a Rule is eliminated or altered by NEPOOL or the ISO, in a manner which
materially affects the costs and obligations to provide Standard Offer Service,
the Companies and Supplier shall meet to determine appropriate compensation to
the affected Party. In the event that the Parties are not able to agree on the
materiality of the cost or obligations or the amount to be reimbursed, Parties
shall attempt to resolve the matter in accordance wit h Article 13.
3) In the event that the Standard Offer Service or the Terms and Conditions for
Suppliers are terminated, amended or replaced by any governmental or regulatory
agency having jurisdiction over the provision of Standard Offer Service in a
manner which materially increases Supplier's costs or obligations to provide
Standard Offer Service or the Companies are prevented from recovering from
customers taking Standard Offer Service the cost of electricity provided by
Supplier, the Companies and Supplier shall meet to determine appropriate
compensation to the negatively impacted Party. In the event that the Parties
are not able to agree on the materiality of the increased cost or obligations
or the amount to be reimbursed, Parties shall attempt to resolve the matter in
accordance with Article 13.
ARTICLE 19. Notices
Any notice, demand, or request permitted or required under this Agreement shall
be delivered in person or mailed by certified mail, postage prepaid, return
receipt requested, or otherwise confirmed receipt, to a Party at the applicable
address set forth below:
To Companies:
Robert P. Clarke
Director - Power Supply
EUA Service Corporation
P. O. Box 543
750 West Center Street
West Bridgewater, MA 02379
To Supplier:
Constellation Power Source, Inc.
David M. Perlman, Esq.
111 Market Place, Suite 500
Baltimore, Maryland 21202
FAX No.: (410) 468-3540
Phone No.: (410) 468-3490
Such addresses may be changed from time to time by written notice by either
Party to the other Party.
ARTICLE 20. Miscellaneous:
1) Each Party shall prepare, execute and deliver to the other Party any
documents reasonably required to implement any provision hereof.
2) Each Party represents to the others as follows:
(i) It is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and is duly qualified to do business
in all jurisdictions where such qualification is required.
(ii) It has full power and authority to enter this Agreement and perform its
obligations hereunder. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action and do
not and will not contravene its organizational documents or conflict with,
result in a breach of, or entitle any party (with due notice or lapse of time
or both) to terminate, accelerate or declare a default under, any agreement or
instrument to which it is a party or by which it is bound. The execution,
delivery and performance by it of this Agreement will not result in any
violation by it of any law, rule or regulation applicable to it. It is not a
party to, nor subject to or bound by, any judgment, injunction o r decree of
any court or other governmental entity which may restrict or interfere with the
performance of this Agreement by it. This Agreement is its valid and binding
obligation, enforceable against it in accordance with its terms, except as (i)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) the remedy of specific performance and
injunctive relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(iii) Except for the finding by the D.T.E. that Eastern's actions in regard
to this Agreement are in accordance with G.L. c. 164, 94A and 1B(b) and
that this Agreement may become effective, no consent, waiver, order, approval,
authorization or order of, or registration, qualification or filing with, any
court or other governmental agency or authority is required for the execution,
delivery and performance by such Party of this Agreement and the consummation
by such Party of the transaction s contemplated hereby. No consent or waiver
of any party to any contract to which such Party is a party or by which it is
bound is required for the execution, delivery and performance by such Party of
this Agreement.
(iv) There is no action, suit, grievance, arbitration or proceeding pending
or, to the knowledge of such Party, threatened against or affecting such Party
at law or in equity, before any federal, state, municipal or other governmental
court, department, commission, board, arbitrator, bureau, agency or
instrumentality which prohibits its ability to execute and deliver this
Agreement or which prohibits or materially impairs its ability to consummate
any of the transactions contemplated hereby. Such Party has not received
written notice of any such pending or threatened investigation, inquiry or
review by any governmental entity.
3) Any number of counterparts to this Agreement may be executed and each shall
have the same force and effect as the original.
4) This Agreement shall constitute the entire understanding between the Parties
and shall supersede all prior correspondence and understandings pertaining to
the subject matter of this Agreement.
5) Failure of either Party to enforce any provision of this Agreement or to
require performance by the other Party of any of the provisions hereof, shall
not be construed as a waiver of such provisions or affect the validity of this
Agreement, any pa rt hereof, or the right of either Party to thereafter enforce
each and every provision.
6) Article and Section headings used throughout this Agreement are for the
convenience of the Parties only and are not to be construed as part of this
Agreement.
7) Nothing in this Agreement shall be construed as creating any relationship
between the Parties other than that of independent contractor for the sale and
purchase of electricity at wholesale.
8) Notwithstanding any other provision of this Agreement to the contrary, the
rights and obligations of the Companies herein are several and not joint. Each
of the Companies' share of such rights and obligations shall be determined by
the portion of its monthly Standard Offer Service energy requirements
represented as a percentage of the Companies' total Standard Offer Service
requirement.
9) Each of the Parties each agree not to disclose to any Person and to keep
confidential, and to cause and instruct its Affiliates, officers, directors,
employees, members and representatives not to disclose to any Person and to
keep confidential, an y and all of the following information: (i) the terms and
provisions of this Agreement; (ii) any financial, pricing or supply quantity
relating to the Standard Offer Service to be supplied by Supplier hereunder;
(iii) any information that is clearly marked "Confidential;" and (iv) any oral
communication that is subsequently reduced to writing and marked
"Confidential." Notwithstanding the foregoing, any such information may be
disclosed (A) to the extent required by applicable laws and regulations or by
any subpoena or similar legal process of any court or agency of federal, state
or local government so long as the receiving Party gives the disclosing Party
written notice as soon as practicable prior to such disclosure; (B) to lenders,
advisors and accountants of such Parties; (C) to the extent the non-disclosing
Party shall have consented in writing prior to any such disclosure; and (D) to
the extent any confidential information is available from public non-
confidential sources or ha s been independently developed by the receiving
Party prior to its receipt from the disclosing Party. This Section 20(9) shall
supersede any prior confidentiality agreement among the Parties. Information
of a confidential nature which (i) has become public other than as a result of
a breach of this Section 20(9); or (ii) was received by the disclosing Party
from another source who in turn disclosed the information without violating
legal restrictions shall not be subject to this Section 20(9). The Parties
shall consult with each other prior to issuing any public announcement,
statement or other disclosure with respect to this Agreement or the
transactions contemplated hereby and shall not issue any such public
announcement, statement or other disclosure without the prior written consent
of the other Party, which consent shall not be unreasonably withheld.
Notwithstanding any provision to the contrary herein, the Companies may provide
copies or information regarding this Agreement to any regulatory agency
requesting and/or requiring such information; provided, that any such
disclosure includes a request for confidential treatment of the Agreement
and/or the redaction of terms considered commercially sensitive by the Supplier
fro m the copies of the Agreement which are placed in the public record or
otherwise made available to third parties.
IN WITNESS WHEREOF, Supplier and the Companies have caused this Agreement to be
signed by their respective duly authorized representatives as of the date first
above written.
Supplier: CONSTELLATION POWER SOURCE, INC.
By: /s/ John R. Collins
Name: John R. Collins
Title: Vice President & Treasurer
On Behalf of the Companies:
Blackstone: BLACKSTONE VALLEY ELECTRIC COMPANY
By: /s/ Kevin A. Kirby
Name: Kevin A. Kirby
Title: Vice President
Eastern: EASTERN EDISON COMPANY
By: /s/ Kevin A. Kirby
Name: Kevin A. Kirby
Title: Vice President
Newport: NEWPORT ELECTRIC CORPORATION
By: /s/ Kevin A. Kirby
Name: Kevin A. Kirby
Title: Vice President
APPENDIX A
SCHEDULE OF SUPPLIER'S SHARE of STANDARD OFFER SERVICE
AND
STANDARD OFFER WHOLESALE PRICE
APPENDIX B