EXHIBIT 10.12
WISCONSIN PUBLIC SERVICE CORPORATION
AMENDED AND RESTATED
AGREEMENT FOR POWER PURCHASES
WITH
MICROGY COGENERATION SYSTEMS, INC.
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Agreement No.
WISCONSIN PUBLIC SERVICE CORPORATION
AMENDED AND RESTATED
AGREEMENT FOR POWER PURCHASES
Agreement entered into this 18th day of March 2003, between MICROGY
COGENERATION SYSTEMS, INC a Colorado Corporation headquartered in New Hampshire,
with principal offices located at One Cate Street, Fourth Floor, Portsmouth, New
Hampshire 03801 (hereafter the "Seller"), and WISCONSIN PUBLIC SERVICE
CORPORATION (hereinafter the "Company")
W I T N E S S E T H:
WHEREAS, the Seller intends to install facilities at certain individual
locations for the purpose of generating electrical energy ("Energy"), said
generation facilities will produce a total of up to 15,000 KW, three phase, and
synchronous type, of Energy as more particularly described on Exhibit A attached
hereto (the "Facilities") to be located at various dairy farms and other
agricultural facilities in Wisconsin and,
WHEREAS, Seller will install facilities utilizing one of the three
following configurations: (a) direct interconnection of the facility to the
Company's distribution system ("Direct Interconnection"), (b) interconnection of
the facility to a municipal interconnection system served by the Company as a
wholesale distributor ("Municipal Interconnection"), and (c) interconnection of
the facility to a utility other than the Company ("Third Party
Interconnection").
WHEREAS, the Company, consistent with its policy of encouraging innovation
and conservation in the energy field, is agreeable to the Seller's installing
said Facilities.
WHEREAS, in accordance with regulation of the appropriate jurisdictional
body, the Public Service Commission of Wisconsin (hereinafter the "Commission"),
the Company is charged with the responsibility of furnishing reliable and
continuous service to its customers at a fixed frequency and voltage within
prescribed limits, and the Company's electric utility system must be constructed
and operated in a safe manner from the standpoint of its employees, as well as
the general public. The following are the principal concerns which must be
addressed in this Agreement by the Company and the Seller.
A. Potential electrical safety hazards resulting from the Facilities
energizing part of a distribution system otherwise isolated by an outrage.
B. Reliability and safety consideration relating to proper and adequate
operation of protective equipment associated with the Company's distribution
system and the
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potential for the service entrance equipment (e.g., fuses and circuit breakers)
of individual customers being rendered inadequate by the operation of the
Facilities.
C. The potential under various conditions for damage to customer-owned
utilization equipment because of irregularities in frequency and/or voltage
resulting from operation of the Facilities.
D. The potential for damage and/or improper operation of customer
equipment, such as motors and interference with communication circuits, both
resulting from excessive harmonics in the Company's utility power supply
originating with the Facilities.
WHEREAS, the Public Service Commission of Wisconsin has adopted certain
interconnection policies and guidelines that were recommended by a Technical
Advisory Committee, established by the Public Service Commission of Wisconsin
with respect to safety, system protection and power quality standards, which
policies and guidelines have been incorporated in the Company's rules for
Parallel Generation in Wisconsin.
WHEREAS, seller and company entered into that certain agreement for power
purchases dated as of March 21, 2002 (the "Original Agreement"), and the parties
desire to modify and clarify certain terms of the Original Agreement and
accordingly, the parties execute this agreement to amend and restate the
Original Agreement in this entirety.
NOW, THEREFORE, the parties hereto each in consideration of the agreements
of the other agree as follows:
1. The Seller agrees, represents and warrants that the Facilities to be
interconnected with the distribution system of the Company are as described in
the applicable Standard Agreement for Interconnection which is attached hereto
as Exhibit A and made a part hereof. Seller agrees to such modifications to the
Standard interconnection Agreement as Company may reasonably require because of
specific conditions or circumstances applicable to Direct Interconnection
Facilities, Municipal Interconnection Facilities, or Third Party Interconnection
Facilities, as the case may be. The Standard Agreement for Interconnection may
be executed by Seller or any assignee of the Seller as required by the Company.
2 (a) The Seller agrees to make available and sell to the Company and
the Company agrees to accept and purchase from the Seller the entire Energy
output generated by each Facility specifically designated by Seller (but only to
the extent described in (i) and (ii) below) at the price ("Purchase Price") and
subject to the other terms and conditions, set forth in Exhibit B of this
Agreement:
(i) Prior to January 1, 2005, Company will purchase all Energy output
generated by each Facility specifically designated by Seller, up to an
aggregate total of 15 MW.
(ii) After January 1, 2005, Company will purchase all Energy output
generated by each Facility specifically designated by seller, but only up
to an aggregate total equal to the level of Energy (expressed in MW)
purchased by
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company on December 31, 2004.
(b) The Company shall purchase the environmental credits (the
"Environmental Credits") generated from all of the Energy delivered and sold to
the Company. The price for the Environmental Credits is included in the energy
pricing described in Exhibit B. The Company shall have the right to utilize the
Environmental Credits it purchases hereunder for its green pricing program or to
meet the Renewable Portfolio Standard(s) pursuant to Section 196.378 of the
Wisconsin Statutes. Seller shall retain all tax credits resulting from
generation of Energy or operation of the Facilities.
(c) The Company is entering into this Agreement based upon Seller's
representation that the Facilities will normally operate at load factor in
excess of eighty percent (80%). The pricing included in this Agreement is based
on the Company being able to include the capacity of the Energy purchased under
this Agreement as part of the capacity audit approved by the Mid American
Interconnected Network ("MAIN"). If MAIN does not approve capacity levels
acceptable to the Company for Energy purchased under this Agreement, the Seller
agrees to negotiate in good faith to modify the pricing terms of this Agreement
in order to allow the capacity levels to the approved and included in a MAIN
audit. The new pricing terms may include the use of capacity nominations, a rate
of payment for capacity, or penalties for failure to deliver nominated capacity
at specified times. In the event of any adjustment hereunder, the new pricing
terms for capacity and Energy would, in total, be equal to the gross dollar
amount of the pricing terms per KW hour as set forth and as adjusted from time
to time in Exhibit B of this Agreement.
3. The Seller shall operate the Facilities in accordance with the
Company's Parallel Generation Rules, (Rate Schedule PGX) which are attached
hereto as Exhibit C, and updated from time to time, and made a part hereof.
4. The Seller and the Company shall abide by and be subject to the rules,
regulations, of the Company as filed with and approved by the Commission from
time to time, and the rules and regulations of the Wisconsin Administrative
Code, and all applicable national, state and local codes, including any future
modifications or changes thereof and updated from time to time.
5. The Company may require the Seller to install inrush limiting equipment
at any Facility if the inrush current from any the Facility causes a Voltage
drop of more than 4.0% of the primary distribution voltage level or causes
objectionable flicker (defined as a primary voltage drop that exceeds the
borderline of visibility on the GE Flicker curve, as described in Annex 1) to
other customers or exceeds existing or future limits established by regulatory
agencies. The Company may test and monitor flicker to assure the criteria in
this paragraph are met. Without liability, the Company may require the Seller to
reduce Energy deliveries or may refuse Energy deliveries at any time during this
Agreement if the Company reasonably determines a condition exists which is
likely to result in disruption of service to a customer of the Company or harm
to the Company's distribution system. Upon cessation of such condition, the
Company shall promptly accept deliveries of Energy hereunder.
6. The Seller, in accordance with and in addition to the Company's
Parallel Generation Rules attached hereto as Exhibit C, shall install such
relaying equipment as is necessary to enable the Seller to automatically isolate
the Facilities from the Company's system upon loss one or more phases of the
Company supply, including, with limitation, over/under frequency relaying,
over/under voltage relaying, ground fault relaying, loss of phase relaying, and
full three-phase, over-current relaying.
7. The Seller shall provide in December of each year a schedule of
maintenance for the Facilities for the following year. Any unusual or
unscheduled maintenance of the Facilities shall be promptly reported to the
Company.
8 The Seller agrees to maintain insurance respecting the Facilities and
operation thereof in the following amounts
(a) General Liability $ 1,000,000 per occurrence
(b) Workers' Minimum requirements under state law;
Compensation qualified municipal self-insurance acceptable
(c) Comprehensive $ 1,000,000 per occurrence
vehicle liability
insurance
(d) All risk property 80% replacement cost of each Facility
insurance
The Seller will, upon request, make its insurance certificates available to the
Company.
9. Indemnity and Limitation of liability.
(a) The Company and the Seller agree that each shall be responsible
for the electricity on its respective side of the Interconnection Point and
shall indemnify, save harmless and defend the other against all claims, demands,
costs, or expenses for loss, damage or injury to persons or property in any
manner directly or indirectly arising from any negligent acts of such party,
their employees or agents. The Company and the Seller respectively assume full
responsibility in connection with the service rendered hereunder for their
respective wires, cables, and other devices used in connection with the rendered
service. Each party hereto shall be solely liable for all claims of its own
employees arising from any worker's compensation laws
(b) Each Party agrees to defend and hold other Party and the other
Party's agents, servants or employees harmless from any claims, demands, actions
or causes of action, arising out of any act or omission on the part of itself or
its agents, servants, or employees which may arise out of the performance of or
be in relation to the performance of any of its other rights or duties under
this Agreement. It is further understood and agreed that the Seller holds
the Company harmless for, and assumes all risk of damages to the Facilities
caused by the Seller's operation of said Facilities. It is further understood
and agreed that the Company holds the Seller harmless for, and assumes all risk
of damage to the Company's system caused by the Company's operation of said
system.
(c) The Company and the Seller agree to indemnify and hold harmless
each other, their respective officers, directors, agents and employees against
all loss, damage, expense, costs and liability (including without limitation
attorney's fees) to the other Party and to third persons for injury to or death
of persons or injury to property, occurring on the indemnifying Party's side of
the Interconnection Point proximately caused by the indemnifying Party's
negligent construction, ownership, operation, or maintenance of any of such
Party's works or facilities used in connection with this Agreement.
(d) Neither the Company nor the Seller shall be liable to the other
for any incidental, special, indirect or consequential damages.
10. Force Majcure.
(a) As used in this Agreement, "Uncontrollable Force" means any event
beyond the reasonable control of a party which results in the failure of some
performance under this Agreement, including but not limited to the following:
failure of equipment or facilities due to drought, flood, earthquake, storm,
fire, lightening, epidemic, war, riot, civil disturbance, sabotage, strike or
labor difficulty, accident or curtailment of supply or equipment, casualty to
equipment, or other unavailability of equipment, inability to obtain and
maintain rights-of-way, permits, licenses and other required authorizations from
any federal, provincial or local agency or person for any of the facilities or
equipment necessary to provide or receive services hereunder, and restraint,
order or decree by court of public authority.
(b) Neither party shall be considered to be in default in respect of
any obligation hereunder (other than the obligation to pay amounts due to the
other party under or pursuant to this Agreement) to the extent such failure of
performance shall be due to an Uncontrollable Force. The party affected by an
Uncontrollable Force shall give prompt (and in no event more than five days
after the commencement of the nonperformance arising as a result of an
Uncontrollable Force) written notice to the other party stating the nature of
the event, its anticipated duration and any action being taken to avoid or
minimize in effect.
(c) Performance shall be excused for the shorter of the duration of
the interruption caused by the Uncontrollable Force or one hundred eighty (180)
days. The nonperformance party shall use its reasonable best efforts to remedy
its inability to perform, but neither party shall be obligated to settle or
resolve a labor difficulty or to hire substitute labor on terms unacceptable to
that party. Either party any terminate this Agreement in the event an
Uncontrollable Force extends a for a period greater than 180 days.
(d) Notwithstanding the foregoing, in the event that an
Uncontrollable Force results in any of the Facilities causing damage or
disruption to the Company's property or facilities, the Company may require the
Seller to deactivate or disconnect the offending Facility
or Facilities until such time as the Uncontrollable Force is remedied or
otherwise no longer materially affects the Facilities, as determined by the
Company in its reasonable discretion.
11. This Agreement shall commence as of the date hereof and shall continue
until April 1, 2018. In no event will the Company be obligated to purchase
Energy from any Facility after April 1, 2018; however, the Company shall have
the right of first offer to renew this Agreement for an additional term of at
least five (5) years at the then prevailing market rates for Energy and
Environmental Credits.
12. This Agreement may be terminated by either party hereto in the event of
a material breach hereunder and the breaching party fails to cure such breach
within 30 days of written notice of such breach by the non-breaching party. In
the case of a material breach by Seller, Company shall provide notice to Seller
and to the Facility lender, mortgage and/or bond trustee (the " Financing
Entity") at the address provided to the Company by notice from Seller given in
accordance with Section 14 of this Agreement.
13. Except as provided in this Section 13, neither party may pledge or
assign its rights hereunder without the prior written consent of the other
party. Seller, at any time without consent of the Company, upon ten days' prior
written notice to Company, any assign or pledge to any affiliate or to any
entity owning the Facilities or for the benefit of any Financing Entity, any or
all of its rights hereunder, including but not limited to, its right to receive
payments for Energy generated by any Facility and sold to the Company; provided,
however, that Seller shall not be thereby relieved of any of its duties and
obligations hereunder. Company shall cooperate as reasonably requested by Seller
at Seller's expenses, to provide information as may be requested by Seller from
time to time in order for Seller to secure financing and satisfy its Financing
Entity. The Company agrees to negotiate in good faith to make reasonable
modifications to this Agreement to accommodate the good faith requirements of
Seller's Financing Entity. Thereafter, this Agreement shall not be modified or
amended by Seller except in the manner, if any, permitted and subject to the
conditions, if any, imposed by each such assignment or pledge. This Agreement
shall be binding on the parties' successors and assigns in accordance with its
terms
14. All notices hereunder (other than notices designated for delivery to
operating personnel, which shall be made in any manner reasonable under the
circumstances) shall be sufficient if personally delivered or sent by registered
or certified mail postage prepaid, courier service or telecopy (followed by
mail) addressed, if to Company to; Wisconsin Public Service Corporation, 700 N.
Adams, P.O. Box 19001, Green Bay, WI 54307-9001 Attention: Electric Rates
Supervisor, fax no. (920)433-1219; and if to Seller to: Microgy Cogeneration
Systems, Inc., One Cate Street, Fourth Floor, Portsmouth, New Hampshire 03801,
fax number 603-431-2650.
15. Either party may terminate this Agreement without penalty in the event
that Seller is not able to commence commercial operation of at least one
Facility by December 31, 2003; however, if Seller, in good faith, has commenced
construction on the projects anticipated hereunder and is proceeding diligently
to complete construction then this Agreement
shall not be terminated and the Company shall be obligated to Purchase the
Energy according to the terms of this Agreement.
16. The Seller has the right to appeal to the Commission in the event that
the Seller believes this Agreement is unreasonable. This Agreement shall be
governed by and shall be enforceable under the laws of the State of Wisconsin.
17. If any clause, provision or section of this Agreement is ruled
invalid by any court or competent jurisdiction, the invalidity of such clause,
provision or section shall not affect any of the remaining provisions hereof.
18. This Agreement and the exhibits attached hereto constitute the entire
agreement between the parties with respect to the matters contained herein. All
prior agreements with respect thereto are superseded hereby and each party
confirms that it is not relying on any representations or warranties of the
other party except as specifically set forth herein. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which constitute one and the same instrument. No amendment
or modification hereto shall be binding unless in writing and duly executed by
both parties.
19. All Terms and conditions of this Agreement and any amendments thereto
shall remain confidential between the parties and shall not be disclosed to
third parties except as required by law.
20. This Agreement shall supersede all other prior and contemporaneous
understandings or agreements, both written and oral, between the parties
relating to the subject matter of this Agreement (including without limitation
the Original Agreement). The Parties acknowledge that, as of the date of this
Agreement, the Original Agreement has been superceded and is no longer of any
force of effect.
MICROGY COGENERATION SYSTEMS, INC.
BY: /s/ DONANLD A. LIVINGSTON Date:3/17/03
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Name: DONANLD A. LIVINGSTON
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Title: President
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WISCONSIN PUBLIC SERVICE CORPORATION
By: /s/ PATRICK W. FOX Date:3/18/03
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Name: PATRICK W. FOX
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Title: Director Resource Supp1y
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EXHIBIT A
TO AGREEMENT FOR POWER PURCHASES WITH
MICROGY COGENERATION SYSTEMS, INC.
WISCONSIN PUBLIC SERVICE CORPORATION
APPLICATION FOR INTERCONNECTION OF
SMALL POWER PRODUCERS AND COGENERATORS
(Please Refer to Chapter 3)
EXHIBIT B
TO AGREEMENT FOR POWER PURCHASES WITH
MICROGY COGENERATION SYSTEMS, INC
Energy Purchase Price for Energy generated at the Facilities
Summer On-Peak $ 0.0655 per Kilowatt hour.
Summer Off-Peak $ 0.0238 per Kilowatt hour.
Winter On-Peak $ 0.0505 per Kilowatt hour.
Winter Off-Peak $ 0.0238 per Kilowatt hour.
The Summer period shall be defined as all hours during the months of June, July,
August and September of each calendar year. The Winter period shall be defined
as all hours during the months of October through May.
On-Peak hours shall be from 7:00 am to 11:00 pm local time Mondays through
Fridays (except holidays). Off-Peak hours shall be defined as all hours not
defined as On-peak hours.
Seller will generate Energy from the Facilities at the load factor set forth in
Section 2(c) of this Agreement for at least 16 hours during each weekend
Off-Peak period.
1. Rate Adjustment:
The purchase prices listed above shall remain in
effect until the implementation date of the Company's
next rate case filing (UR-115). At that time, any
change to the Company's applicable buy-back rate
(pg-2) shall be reflected in the Seller's rate by
changing the rate by the same percentage as any
change in the Company's applicable Pg-2 rate. This
adjustment clause will hold true for any subsequent
rate changes in the Company's applicable Pg-2 rate
for the duration of this agreement. At no time during
the duration of this agreement shall the purchase
price of Energy be adjusted below the levels set at
the implementation of this agreement.
EXHIBIT C
TO AGREEMENT FOR POWER PURCHASES WITH
MICROGY COGENERATION SYSTEMS, INC.
WISCONSIN PUBLIC SERVICE CORPORATION
PARALLEL GENERATION RULES
(RATE SCHEDULE PGX)
(Please refer to Addendum #12)