SERVICE AGREEMENT
(ESS Service)
AGREEMENT made this 19th day of September 1995, by and between
NATIONAL FUEL GAS SUPPLY CORPORATION, a Pennsylvania corporation, hereinafter
called "Transporter", and NATIONAL FUEL GAS DISTRIBUTION CORPORATION,
hereinafter called "Shipper".
WITNESSETH: That, in consideration of the mutual covenants herein
contained, the parties hereto agree that Transporter will store natural gas for
Shipper during the term, at the rates and on the terms and conditions
hereinafter provided.
ARTICLE I
Quantities
Beginning on the date on which storage service is commenced hereunder
and thereafter for the remaining term of this Agreement, and subject to
the provisions of Transporter's ESS Rate Schedule, Transporter agrees to cause
to be injected into storage for Shipper's account, store, and withdraw from
storage, quantities of natural gas as follows:
Maximum Storage Quantity (MSQ) of 2,000,000 Dekatherms (Dth)
Maximum Injection Quantity (Contract MDIQ) of 11,765 Dth
Maximum Withdrawal Quantity (Contract MDWQ) of 13,245 Dth
ARTICLE II
Rate
Unless otherwise mutually agreed in a written amendment to this
Agreement, or unless a different rate is specified in the release forms attached
hereto, for each dekatherm of gas transported for Shipper by Transporter
hereunder, Shipper shall pay Transporter the maximum rate provided under Rate
Schedule ESS set forth in Transporter's effective FERC Gas Tariff. In the event
that the Transporter places on file with the Federal Energy Regulatory
Commission ("Commission") another rate schedule which may be applicable to
transportation service rendered hereunder, then Transporter, at its option, may
from and after the effective date of such rate schedule, utilize such rate
schedule in performance of this Agreement. Such a rate schedule(s) or
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superseding rate schedule(s) and any revisions thereof which shall be filed
and become effective shall apply to and be a part of this Agreement. Transporter
shall have the right to propose, file and make effective with the Commission,
or other body having jurisdiction, changes and revisions of any effective rate
schedule(s), or to propose, file, and make effective superseding rate schedules,
for the purpose of changing the rate, charges, and other provisions thereof
effective as to Shipper.
Shipper agrees to reimburse Transporter for the filing fees associated
with this service and paid to the Commission.
ARTICLE III
Term of Agreement
This Agreement shall be effective as of January 1996, and shall
continue in effect until April 15, 2006, and shall continue in effect thereafter
until terminated by either Shipper or Transporter effective as of April 1 of
any year, upon twelve (12) months' written notice to the other.
ARTICLE IV
Regulatory Approval
Performance under this Agreement by Transporter and Shipper shall be
contingent upon Transporter and Shipper receiving all necessary regulatory or
other governmental approvals upon terms satisfactory to each. Should
Transporter and Shipper be denied such approvals to provide the service
contemplated herein or construct and operate any necessary facilities
therefor upon the terms and conditions requested in the application
therefor, then Transporter's and Shipper's obligations hereunder shall
terminate.
In particular, performance under this Agreement shall be contingent
upon permanent certification of Transporter's storage facilities at Allegany
State Park.
ARTICLE V
Incorporation By Reference of Tariff Provisions
To the extent not inconsistent with the terms and conditions of this
Agreement, the provisions of Rate Schedule ESS, or any effective superseding
rate schedule or otherwise applicable rate schedule, including any provisions
of the General Terms and Conditions incorporated therein, and any revisions
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thereof that may be made effective hereafter are hereby made applicable to and a
part hereof by reference.
ARTICLE VI
Miscellaneous
1. No change, modification or alteration of this Agreement
shall be or become effective until executed in writing by the parties hereto,
and no course of dealing between the parties shall be construed to alter the
terms hereof, except as expressly stated herein.
2. No waiver by any party of any one or more defaults by the
other in the performance of any provisions of this Agreement shall operate or be
construed as a waiver of any other default or defaults, whether of a like or of
a different character.
3. Any company which shall succeed by purchase, merger or
consolidation of the gas related properties, substantially as an entirety, of
Transporter or of Shipper, as the case may be, shall be entitled to the rights
and shall be subject to the obligations of its predecessor in title under this
Agreement. Either party may, without relieving itself of its obligations under
this Agreement, assign any of its rights hereunder to a company with which it is
affiliated, but otherwise, no assignment of this Agreement or of any of the
rights or obligations hereunder shall be made unless there first shall have been
obtained the consent thereto in writing of the other party. Consent shall not be
unreasonably withheld.
4. Except as herein otherwise provided, any notice, request,
demand, statement or bill provided for in this Agreement, or any notice which
either party may desire to give the other, shall be in writing and shall be
considered as duly delivered when mailed by registered or certified mail to the
Post Office address of the parties hereto, as the case may be, as follows:
Transporter: National Fuel Gas Supply
Corporation
Gas Supply - Transportation
Room 1200
10 Lafayette Square
Buffalo, New York 14203
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Shipper: National Fuel Gas Distribution
Corporation
10 Lafayette Square
Buffalo, New York 14203
or at such other address as either party shall designate by formal written
notice. Routine communications, including monthly statements, shall be
considered as duly delivered when mailed by either registered, certified, or
ordinary mail, electronic communication, or telecommunication.
5. Transporter and Shipper shall proceed with due diligence to
obtain such governmental and other regulatory authorizations as may be required
for the rendition of the services contemplated herein, provided that Transporter
reserves the right to file and prosecute applications for such authorizations,
any supplements or amendments thereto and, if necessary, any court review, in
such manner as it deems to be in its best interest, including the right to
withdraw the application or to file pleadings and motions (including motions for
dismissal).
6. This Agreement and the respective obligations of the
parties hereunder are subject to all present and future valid laws, orders,
rules and regulations of constituted authorities having jurisdiction over the
parties, their functions or gas supply, this Agreement or any provision hereof.
Neither party shall be held in default for failure to perform hereunder if such
failure is due to compliance with laws, orders, rules or regulations of any such
duly constituted authorities.
7. The subject headings of the articles of this Agreement are
inserted for the purpose of convenient reference and are not intended to be a
part of the Agreement nor considered in any interpretation of the same.
8. No presumption shall operate in favor of or against either
party hereto as a result of any responsibility either party may have had for
drafting this Agreement.
9. The interpretation and performance of this Agreement shall
be in accordance with the laws of the State of Pennsylvania, without recourse to
the law regarding the conflict of laws.
10. Upon the date performance commences under this Agreement,
the ESS Service Agreement dated June 23, 1994 (Agreement #36604) between
Transporter and Shipper shall terminate.
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The parties hereto have caused this Agreement to be signed by
their respective Presidents or Vice Presidents thereunto duly authorized and
their respective corporate seals to be hereto affixed and attested by
their respective Secretaries and Assistant Secretaries, the day and year first
above written.
NATIONAL FUEL GAS SUPPLY
CORPORATION
(Transporter)
/s/ William A. Ross
William A. Ross
Vice President
NATIONAL FUEL GAS DISTRIBUTION
CORPORATION
(Shipper)
/s/ Walter E. DeForest
Walter E. DeForest
Senior Vice President