CONFIDENTIAL TREATMENT OF BRACKETED MATERIAL REQUESTED PURSUANT TO RULE 24b-2
FT CONTRACT NUMBER: 95005
THIS AGREEMENT entered into this 15th day of December 1994, by and between
EMPIRE STATE PIPELINE, a joint venture, hereinafter referred to as
"Transporter," and NATIONAL FUEL GAS DISTRIBUTION CORPORATION, hereinafter
referred to as "Shipper."
ARTICLE I
1. Transporter's Transportation Service hereunder shall be subject to
receipt of all requisite regulatory authorizations from the New York
Public Service Commission ("Commission") , or any successor
regulatory authority, and any other necessary governmental
authorizations, in a manner and form acceptable to Transporter.
2. Subject to the terms and provisions of this Agreement, Shipper
agrees to deliver or cause to be delivered to Transporter, Gas for
Transportation, and Transporter agrees to receive, transport and
redeliver Equivalent Quantities of Gas to Shipper or for the account
of Shipper, on a firm basis, up to an aggregate Maximum Daily
Quantity of 40,112 dekatherms ("Dth") . Section I of Exhibit C,
attached hereto and made a part hereof, sets forth one or more
routings of Transportation provided hereunder, by designation of the
Point(s) of Receipt and Point(s) of Delivery, and specifies the
portion of the aggregate Maximum Daily Quantity which is related to
and agreed upon relative to each such routing.
3. Transporter may, if tendered by Shipper, transport daily
quantities in excess of the Maximum Daily Quantity specified in
Paragraph 2, above, if it can do so without adverse effect on
Transporter's operations or its ability to meet all other
obligations.
4. Transportation service rendered hereunder may be wholly or partly
interrupted, subject to the requirements of the General Information,
when such curtailment or interruption is desirable due to operating
conditions or insufficient pipeline capacity available on
Transporter's system.
ARTICLE II
1. Shipper shall deliver or cause to be delivered Gas hereunder at
the Point(s) of Receipt set forth in Exhibit "A", which is attached
hereto and made a part hereof.
ARTICLE III
1. Transporter shall redeliver to Shipper or for the account of
Shipper Equivalent Quantities of Gas transported hereunder at the
Point(s) of Delivery set forth on Exhibit "B", which is attached
hereto and made a part hereof.
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CONFIDENTIAL TREATMENT OF BRACKETED MATERIAL REQUESTED PURSUANT TO RULE 24b-2
ARTICLE IV
This Agreement shall be effective for an initial period as of
[ ] until [ ].
ARTICLE V
1. Each Month, Shipper shall pay Transporter for the service
hereunder, an amount determined in accordance with Transporter's
Service Classification No. 1 (Rate Schedule FT), and the applicable
provisions of the General Information of Transporter's New York
Public Services Commission Gas Tariff, as filed with the Commission.
Such Service Classification and General Information are incorporated
by reference and made a part hereof. Section II of Exhibit C hereto
sets forth one or more routings of Transportation provided hereunder,
by designation of the Point(s) of Receipt and Point(s) of Delivery,
and specifies for each such routing, the rates, differentials and any
other charges applicable to service under this Service Agreement for
such routing, as agreed by Transporter and Seller or as fixed by
Transporter pursuant to Section 3.2 of Service Classification No. 1.
Transporter may unilaterally effect an amendment to Section II of
Exhibit C to reflect any changes made pursuant to said Section 3.2,
which is incorporated herein by reference, and/or pursuant to
Commission authorization or direction. Any rates or differentials so
specified shall be increased pursuant to Section 16 of the above
referenced General Information.
2. It is further agreed that Transporter may seek authorization from
the Commission and/or other appropriate body for such changes to any
rate(s) and terms set forth herein or in Service Classification No. 1
or in the General Information as may be found necessary to assure
Transporter just and reasonable rates and terms. Nothing herein
contained shall be construed to deny Shipper any rights it may have
under applicable law, including the right to participate fully in
rate proceedings by intervention or otherwise to contest increased
rates in whole or in part.
ARTICLE VI
1. Definition. The term "force majeure" as used herein shall mean
acts of God, strikes, lockouts, or other industrial disturbances;
acts of the public enemy, wars, blockades, insurrections, riots,
epidemics, landslides, lightning, earthquakes, fires, storms
(including but not limited to hurricanes or hurricane warnings),
crevasses, floods, washouts; arrests and restraints of the
government, either Federal or State, civil or military; and civil
disturbances. Relative to Transporter's service and solely to the
operation of its system, force majeure shall also mean shutdowns for
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purposes of necessary repairs, relocation, or construction of
facilities; breakage or accident to machinery or lines of pipe; the
necessity for testing (as required by governmental authority or as
deemed necessary by Transporter for the safe operation thereof), the
necessity of making repairs or alterations to machinery or lines of
pipe; failure of surface equipment or pipe lines; accidents,
breakdowns, inability to obtain necessary materials, supplies or
permits, or labor to perform or comply with any obligation or
condition of this Agreement, rights of way; and any other causes,
whether of the kind herein enumerated or otherwise which are not
reasonably in Transporter's control. It is understood and agreed that
the settlement of strikes or lockouts or controversies with
landowners involving rights of way shall be entirely within
Transporter's discretion and that the above requirement that any
force majeure shall be remedied with all reasonable dispatch shall
not require the settlement of strikes or lockouts or controversies
with landowners involving rights of way by acceding to the demands of
the opposing party when such course is inadvisable in the discretion
of Transporter.
2. Force Majeure. If by reason of force majeure either party hereto
is rendered unable, wholly or in part, to carry out its obligations
under this Agreement, it is agreed that if such party gives notice in
full particulars of such force majeure in writing or by telecopy to
the other party within a reasonable time after the occurrence of the
cause relied on, the party giving such notice, so far as and to the
extent that it is affected by such force majeure, shall not be liable
for damages during the continuance of any inability so caused, but
for no longer period, and such cause shall so far as possible be
remedied with all reasonable dispatch. Transporter shall not be
liable for damages to Shipper other than for acts of gross negligence
or willful misconduct, and only in circumstances in which conditions
of force majeure do not exist.
3. Limitations. Such force majeure affecting the performance
hereunder by either Transporter or Shipper, however, shall not
relieve such party of liability in the event of failure to use due
diligence to remedy the situation and to remove the cause in an
adequate manner and with all reasonable dispatch, nor shall such
causes or contingencies affecting such performance relieve Shipper
from its obligations to make payments then due or becoming due under
this agreement.
ARTICLE VII
1. Payment. Shipper shall pay Transporter the amount due for the
preceding Month on or before the twenty-fifth (25th) Day of the
Month. All payments by Shipper to Transporter shall be made in the
form of wire transfer directed to a bank account
<PAGE 4>
designated by Transporter's Controller or by check at Transporter's
general of office, or at such other address as Transporter shall
designate such that funds are available on the date payment is due.
If rendering of a bill by Transporter is delayed after the tenth
(10th) Day of the Month, then the time of payment shall be extended
accordingly unless Shipper is responsible for such delay.
Should Shipper fail to pay all of the amount of any bill as herein
provided when such amount is due, interest on the unpaid portion of
the bill shall accrue at the prime rate or rates charged by Citibank,
N.A. New York, New York to responsible commercial and industrial
borrowers, plus two percentage points, for each of the Months from
the due date until the date of payment. Transporter may also impose
late payment or failure to pay charges not inconsistent with
regulations or orders of the Commission. If such failure to pay
continues for thirty (30) Days after payment is due, Transporter, in
addition to any other remedy it may have hereunder, shall upon notice
to Shipper, suspend further delivery of Gas until such amount is
paid; provided, however, that if Shipper in good faith shall dispute
the amount of any such bill or part thereof and shall pay to
Transporter such amounts, if any, as it concedes to be correct and,
at any time thereafter within thirty (30) Days of a demand made by
Transporter, shall furnish a good and sufficient surety bond in an
amount and with surety satisfactory to Transporter or other assurance
acceptable to Transporter, guaranteeing payment to Transporter of the
amount ultimately found due upon such bill after a final
determination which may be reached either by agreement or judgment of
the courts, as may be the case, then Transporter shall not be
entitled to suspend further delivery of such Gas unless and until
default be made in the conditions of such bond. In the event
Transporter suspends delivery of Gas for non payment by Shipper, and
Shipper continues non payment for thirty (30) Days after such
suspension, Shipper shall be deemed to have consented to termination
of its Service Agreement and abandonment of service. Written notice
of any termination and abandonment shall be given to Shipper at least
seventy-two (72) hours before such termination and abandonment, and
shall include an adequate explanation.
If there are claimed errors in a billing hereunder and Shipper and
Transporter are unable to agree relative thereto, any resort by
either of the parties to legal proceedings shall be commenced within
fifteen (15) Months after the supposed cause of action is alleged to
have arisen, or shall thereafter be forever barred.
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2. Responsibility for Gas. Shipper shall be deemed in exclusive
control and possession of the Gas until such Gas has been delivered
to Transporter at the Point of Receipt and after such Gas has been
redelivered to or for the account of Shipper at the Point of
Delivery. Transporter shall be in exclusive control and possession of
such Gas between the Point(s) of Receipt and the Point(s) of Delivery
set forth in this Agreement. The party which shall be in exclusive
control and possession of such Gas shall be responsible for all
injury or damage caused thereby to any third party.
3. Indemnification of Transporter. In the absence of gross negligence
or willful misconduct on the part of Transporter's officers,
employees or agents, Shipper waives and indemnities against any and
all claims against Transporter, its officers, employees or agents,
arising out of or in any way connected with (i) the quality, use or
condition of the Gas after delivery from Transporter's line for the
account of such Shipper; (ii) any losses or shrinkage of Gas during
or resulting from transportation hereunder; and (iii) all other
claims and demands arising out of the performance of the duties of
the Transporter, its officers, employees or agents. Shipper agrees to
supply Transporter with a waiver of subrogation of Shipper's
insurance company for all claims subject to the indemnification and
the save harmless provisions covered by this paragraph.
4. Warranty. Shipper warrants for itself, its successors, and
assigns, that it has, or will have, at the time of delivery of the
Gas for transportation hereunder, good title to such Gas to be
delivered to Transporter for Transportation, or the contractual right
to allow and cause such gas to be delivered to and transported by
Transporter. Shipper warrants for itself, its successors, and
assigns, and any person(s) which grant such contractual right to
Shipper, that the Gas it warrants hereunder shall be free and clear
of all liens, encumbrances or claims, that it will indemnify and save
Transporter harmless from all suits, actions, debts, accounts,
damages, costs, losses, and expenses arising from or out of any
adverse claims of any and all persons to said Gas and/or to
royalties, taxes, license fees, or charges thereon which are directly
applicable to such delivery of Gas and that it will indemnify and
save Transporter harmless from all taxes or assessments which may be
directly levied and assessed upon such delivery and which are by law
payable and the obligation of the party making such delivery.
5. waivers. No waiver by either Transporter or Shipper of any one
or more defaults by the other in the performance of any provisions
hereunder shall operate or be construed as a waiver of any future
default or defaults, whether of a like or a different character.
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Transporter may waive enforcement of provisions of its tariff, where
economically and operationally feasible.
6 Interpretation of Laws. This Agreement shall be interpreted,
performed and enforced in accordance with the laws of the State of
New York.
7. No Third Party Beneficiary. It is expressly agreed that there is
no Third Party Beneficiary of this Agreement, and that the provisions
of this Agreement and this General Information do not impart
enforceable rights in anyone who is not a party or successor or
assignee of any party to this Agreement.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
9. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
ARTICLE VIII
NOTICE
1. Except as may be otherwise provided, any notice, request, demand,
statement or bill provided for in this Agreement or any notice which
a party may desire to give the other shall be in writing and mailed
by regular mail, effective as of the postmark date, to the post
office address of the party intended to receive the same, as follows:
Transporter: Empire State Pipeline
500 Renaissance Center
Detroit, Michigan 48243
Attention: Gas Control (Nominations)
Gas Measurement (Meter Statements)
Volume Management (Other Statements)
Cash Control (Payments)
System Marketing
(All other matters)
Shipper: National Fuel Gas Distribution Corporation
10 Lafayette Square
Buffalo, New York 14203
Attention: Contract Administration (invoices)
Walter E. DeForest, Senior V.P.
(all other matters)
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CONFIDENTIAL TREATMENT OF BRACKETED MATERIAL REQUESTED PURSUANT TO RULE 24b-2
ARTICLE IX
MISCELLANEOUS
1. Transporter and Shipper further agree as follows:
a. Shipper represents and warrants, to the satisfaction of the
Federal Energy Regulatory Commission, Transporter and the Commission,
that, until Transporter obtains the necessary regulatory
authorization to transport gas in interstate commerce, all Gas
transported hereunder shall be consumed in the State of New York.
b. Shipper shall pay Transporter a rate for the service provided
hereunder which, in no event, shall be less than the minimum rate,
nor greater than the maximum rate, approved by the Commission, and as
set forth in Transporter's Schedule for Gas Service. Subject to the
foregoing, Shipper shall pay Transporter a total rate, which [
].
CONFIDENTIAL TREATMENT OF BRACKETED MATERIAL REQUESTED PURSUANT TO RULE 24b-2
c. It is understood and agreed that Shipper shall have the right to
defer commencement of 27,300 Dth per day of the service hereunder. If
Shipper defers service for such quantity, service for such quantity
shall commence no later than [ ].
CONFIDENTIAL TREATMENT OF BRACKETED MATERIAL REQUESTED PURSUANT TO RULE 24b-2
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers or Representatives thereunto duly
authorized.
EMPIRE STATE PIPELINE
(Transporter)
By /s/ Richard A. Lietz
Its Chairman of the Management Committee
ATTEST: NATIONAL FUEL GAS DISTRIBUTION COMPANY
(Shipper)
/s/ David F. Smith By /s/ Walter E. DeForest
Secretary Its Sr. Vice President
<PAGE 9>
EXHIBIT "A"
to
Agreement between
Empire State Pipeline (Transporter)
and
NATIONAL FUEL GAS DISTRIBUTION CORPORATION (Shipper)
Dated______________________________
POINT(S) OF RECEIPT AND PRESSURES
---------------------------------
Point(s) of Receipt by Transporter
Maximum Allowable
Measuring Operating Pressure
Number Name Location Party "NMOP"
- --------- --------- ---------- --------- ------------------
012000010 CHIPPAWA CHANNEL
(EMPIRE/TCPL)
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EXHIBIT "B"
to
Agreement between
Empire State Pipeline (Transporter)
and
NATIONAL FUEL GAS DISTRIBUTION CORPORATION (Shipper)
Dated_______________________
POINT(S) OF DELIVERY BY TRANSPORTER
-----------------------------------
Measuring
Number Name Location Party
- --------- ------------ --------- -----
012003010 GRAND ISLAND
(EMPIRE/NFGS)
<PAGE 11>
EXHIBIT "C"
to
Agreement between
Empire State Pipeline (Transporter)
and
NATIONAL FUEL GAS DISTRIBUTION CORPORATION (Shipper)
Dated____________________________
MAXIMUM DAILY
QUANTITY, TRANSPORTATION
AND ADDITIONAL CHARGES
------------------------
I. MAXIMUM DAILY QUANTITY
Point(s) of Receipt Point(s) of Delivery Maximum Daily
Number(s) Number(s) Quantity (Dth)
- ------------------- -------------------- --------------
012000010 012003010 40,112
II. TRANSPORTATION AND ADDITIONAL CHARGES
Effective
Point(s) Point(s) Transportation Effective
of Receipt of Delivery Charge Other
Number(s) Number(s) ($ per Dth) Charges
- ---------- ----------- -------------- ---------
012000010 012003010 Reservation Charge: (1) (1)
Commodity Charge: (1) (1)
Note: (1) Refer to Service Classification No. 1. of Transporter's New York
Public Service Commission's Gas Tariff.