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NEW YORK CITY PUBLIC UTILITY SERVICE
POWER SERVICE AGREEMENT
Made as of May 3, 1993
between
THE CITY OF NEW YORK, Acting
by and through its Public Utility Service
and
THE NEW YORK TIMES NEWSPAPER DIVISON OF THE
NEW YORK TIMES COMPANY
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TABLE OF CONTENTS
ARTICLE TITLE PAGE
Article 1 Definitions 1
Article 2 Sale and Purchase of Electricity 11
Article 3 Type of Service 17
Article 4 Term 18
Article 5 Quantity of Electricity to be Supplied 19
Article 6 Use of Service 22
Article 7 Billing 22
Article 8 Apportionment of Service 26
Article 9 Employment and Power Usage Levels 27
Article 10 Intentionally Omitted 36
Article 11 Breach of Contract 37
Article 12 Third Party Beneficiary 41
Article 13 Records 42
Article 14 Force Majeure 42
Article 15 Assignability of Agreement 44
Article 16 Notices 44
Article 17 Modifications to Agreement 45
Exhibit I NYPA/NYCPUS Contract
Exhibit II NYPA Service Tariff No. 35
Exhibit III Con Edison Delivery Agreement
Exhibit IV NYPA Resolution
Exhibit V NYCPUS General Terms and Conditions
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TABLE OF CONTENTS (cont'd)
Exhibit VI NYCPUS Service Tariff No. 4
Exhibit VII Annual Job Report Form
Exhibit VIII Customer's Agreement to Purchase
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NEW YORK CITY PUBLIC UTILITY SERVICE
POWER SERVICE AGREEMENT
THIS AGREEMENT made as of this May 3, 1993 between THE
CITY OF NEW YORK, a municipal corporation of the State of New
York, acting by and through its Public Utility Service, having
an office at 75 Park Place, Sixth Floor, New York, New York
10007 and THE NEW YORK TIMES NEWSPAPER DIVISION OF THE NEW YORK
TIMES COMPANY, having an address at 229 West 43rd Street, New
York, New York.
Article 1 - DEFINITIONS
As used throughout this Agreement, the following
terms, whether in the singular or plural, shall have the
meaning set forth below:
1.1 Abandonment of the Project - The occurrence of
any of the following:
(i) notification by Customer to EDC, in writing,
that it intends to abandon the Project as of
the date specified in such notice, or
(ii) at any time during the period between the
date hereof and the date on which Customer
has equipped the Project with the initial
printing presses to be used in connection
therewith and commenced the operation
thereof (the "Operational Date"), Customer
permanently relocates substantially all of
the jobs and/or functions directly related
to the printing, collating, bundling and
distribution of the New York Times newspaper
located, on the date of this Agreement, at
Customer's 43rd Street facility (the "43rd
Street Facility"), to another facility
outside of New York City, or
(iii) at any time after the Construction
Commencement Date, Customer fails to make
reasonable and diligent efforts to construct
the minimum facility required to be
constructed pursuant to the terms of the
Lease (the "Minimum Printing Facility"), and
as a result of such failure Customer shall
not Substantially Complete (as such term is
defined in the Lease) construction of the
Minimum Printing Facility by the Scheduled
Completion Date (subject to Unavoidable
Delays), and such failure continues for
thirty (30) days after written notice given
to Customer pursuant to the terms of the
Lease or
(iv) by the date (the "Outside Operation Date")
which is five (5) years after Substantial
Completion (as such term is defined in the
Lease) of construction of the Minimum
Printing Facility,
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Customer shall have failed to (a) equip such
Minimum Printing Facility with the printing
presses to be used by Customer in connection
therewith and (b) commence the operation of such
Minimum Printing Facility, or
(v) at any time after the Operational Date, Customer
ceases such operation and fails to resume such
operation within a five (5) year period (subject
to Unavoidable Delays) and such failure
continues for thirty (30) days after written
notice given to Customer pursuant to the terms
of the Lease.
Abandonment of the Project shall be deemed to have occurred
effective as of: (I) the date specified in the notice
described in (i) above; (II) the date on which Customer
permanently relocates substantially all of the jobs and/or
functions directly related to the printing, collating, bundling
and distribution of the New York Times newspaper located at the
43rd Street Facility to another facility outside of New York
City; (III) the date which is thirty (30) days after the notice
described in (iii) above (provided, that prior to the
expiration of such thirty-day period, Customer has not
commenced to cure the failure described in such notice);
(IV) the Outside Operational Date; or (V) the date which is
thirty (30) days after the notice described in (v) above
(provided, that prior to the expiration of such thirty-day
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period, Customer has not commenced to cure the failure
described in such notice).
1.2 Actual Demand - The integrated demand registered by
Customer during each consecutive thirty (30) minute period
during the term of this Agreement.
1.3 Affiliate - (i) Any Person which, directly or
indirectly, through one or more intermediaries controls, or is
under common control with, or is controlled by, Customer, or
(ii) such other Person which may be requested by Customer to be
treated as an Affiliate for purposes of this Agreement and
approved in writing by the Director. The term "control"
(including the related terms "controlled by" and "under common
control with") means the possession, directly or indirectly, of
the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of
voting securities, or partnership or other ownership interests,
by contract or otherwise; provided that in any event, any
Person (including the family members of such Person) which owns
directly or indirectly 50% or more of the securities having
ordinary voting power for the election of directors or other
governing body of a corporation or which is a general partner
of a partnership is deemed to control such corporation or
partnership.
1.4 Allocation Increase Notice - Shall have the meaning
provided in Section 5.2 of this Agreement.
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1.5 Building - A printing facility consisting of not less
than 360,000 square feet to be constructed at the Project by
Customer pursuant to the terms of the Lease.
1.6 City - The City of New York, its departments and
political subdivisions, including the New York City Public
Utility Service.
1.7 College Point Power Commencement Date - The date,
chosen at Customer's discretion, at or about the beginning of a
calendar month to coincide with the appropriate Con Edison "trip
cycle" for such calendar month, which shall be specified by
Customer in the College Point Power Commencement Notice, on
which NYCPUS shall discontinue the allocation of Low-Cost Power
to Customer at the 43rd Street Facility (and nothing contained
herein shall be construed to mean that the power consumed by
Customer at the 43rd Street Facility thereafter shall be reduced
as the result thereof, or that such power shall not thereafter
be provided by Con Edison to Customer at Con Edison's rates
which are applicable to Customer) and commence the allocation of
Low-Cost Power to Customer at the Project. In the event that
Customer desires that NYCPUS provide 6.0 megawatts of Low-Cost
Power to the Project as of the College Point Power Commencement
Date, Customer shall give the College Point Power Commencement
Notice not less than thirty (30) days prior to the College Point
Power Commencement Date. In the event that Customer desires
that NYCPUS provide more than 6.0 megawatts of Low-Cost Power
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to the Project as of the College Point Power Commencement Date,
Customer shall give the College Point Power Commencement Notice
in accordance with the provisions of Section 5.2 hereof.
1.8 College Point Power Commencement Notice - The notice
to be given by Customer to NYCPUS pursuant to Section 1.7
hereof, which notice shall specify (a) the College Point Power
Commencement Date and (b) the number of megawatts of Low-Cost
Power to be provided to the Project as of the College Point
Power Commencement Date.
1.9 Con Edison - The Consolidated Edison Company of
New York, Inc.
1.10 Construction Commencement Date - Shall have the
meaning provided for that term in the Lease.
1.11 Construction Completion Date - The date upon which
Customer Substantially Completes (as that term is defined in the
Lease) construction of the Building.
1.12 Contract Demand - The amount of power determined from
time to time in accordance with Articles 5 and 9 of this
Agreement.
1.13 Customer - The New York Times Newspaper Divison of The
New York Times Company; provided, however, that any obligation
of Customer to be performed under this Agreement may be
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performed by Customer or by one or more of Customer's
Affiliates; provided, however, that any such performance by
Customer's Affiliates shall be in accordance with all terms and
conditions of this Agreement including, without limitation, job
reporting and affirmative action requirements, to the extent
that such terms and conditions are applicable to such
performance.
1.14 Delivery Agent - The Consolidated Edison Company of
New York, Inc.
1.15 Delivery Agreement - The Agreement between the City of
New York and Consolidated Edison Company of New York, Inc. for
the delivery of power and energy from the James A. FitzPatrick
Power Project, dated October 23, 1987, attached hereto as
Exhibit III, including the schedule of rates, terms, and
conditions implementing said agreement duly and lawfully filed
by Con Edison with the Federal Energy Regulatory Commission and
the New York State Public Service Commission, and any amendments
or changes thereto.
1.16 Director - The Director of the New York City Public
Utility Service.
1.17 EDC - The New York City Economic Development
Corporation.
1.18 EDPAB - The Economic Development Power Allocation
Board as defined by the Economic Development Law Section 182.
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1.19 General Terms and Conditions - "General Terms and
Conditions Applicable to the Rates and Charges of the New York
City Public Utility Service," attached hereto as Exhibit V, as
approved pursuant to Law and any amendments thereto.
1.20 Job Recalculation Notice - Shall have the meaning
provided in Section 9.0 hereof.
1.21 Jobs - Positions filled by full-time equivalent
production jobs and full-time equivalent non-production jobs in
New York City only. Production jobs shall be defined as jobs
associated with Customer's printing functions or successor
functions thereto. Non-production jobs shall be defined as jobs
other than those associated with Customer's printing functions.
Full-time equivalent production jobs and non-production jobs
shall be calculated in the manner provided in Section 9.9
hereof.
1.22 Law - The term "Law" shall include, but not be limited
to, any federal or state law or rule or regulation, the New York
City Charter, the New York City Administrative Code, a local law
of the City of New York, and any ordinance, rule or regulation
having the force of law.
1.23 Lease - That certain lease to be entered into between
the City and EDC and simultaneously assigned by EDC to Customer
in connection with the development by Customer of a printing and
distribution facility at College Point, New York.
1.24 Lease Execution Date - The date on which the Lease is
executed.
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1.25 Low-Cost Power - Power and energy provided by NYCPUS
to Customer pursuant to the terms of this Agreement from the
power and energy provided to NYCPUS by NYPA or any successor to
NYPA pursuant to Service Tariff No. 35 or any successor tariff
to Service Tariff No. 35. Such Low-Cost Power shall consist of
(a) 6.0 megawatts of economic development power provided to
NYCPUS by NYPA or any successor to NYPA, and (b) up to 4.5
additional megawatts from NYCPUS' Reserved Allocation (as that
term is defined in the NYPA/NYCPUS Contract) provided by NYPA or
any successor to NYPA.
1.26 Maximum Power Allocation - 10.5 megawatts of Low-Cost
Power.
1.27 Minimum Production Jobs - Shall have the meaning
provided in Section 9.0 hereof.
1.28 Minimum Non-Production Jobs - Shall have the meaning
provided in Section 9.0 hereof.
1.29 NYCPUS - The New York City Public Utility Service.
1.30 NYCRR - New York Code of Rules and Regulations.
1.31 NYPA - The New York Power Authority (also known as the
Power Authority of the State of New York ("PASNY").
1.32 NYPA Capability Period - Approximately November 1
through April 30 and May 1 through October 31 of each year.
1.33 Person - Any individual, corporation, partnership,
joint venture, trust or unincorporated organization.
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1.34 Project - A printing and distribution facility in
College Point, New York, to be constructed by Customer pursuant
to the terms of the Lease.
1.35 Scheduled Completion Date - Shall have the meaning
provided for that term in the Lease.
1.36 Summer Temporary Reduction Month - Shall have the
meaning provided in Section 9.7 of this Agreement.
1.37 Temporary Reduction Month - Shall have the meaning
provided in Section 9.7 of this Agreement.
1.38 Winter Temporary Reduction Month - Shall have the
meaning provided in Section 9.7 of this Agreement.
1.39 Unavoidable Delays - Delays caused by strikes,
slowdowns, walkouts, lockouts or other labor troubles; acts of
God; catastrophic weather conditions; inability to obtain labor
or materials due to labor disputes; court orders enjoining
commencement or continuation of construction work; enemy action;
civil commotion; shortage of fuel, supplies or labor resulting
from governmental declared priorities in connection with a
public emergency; failure or defect in the supply of
electricity, oil, gas or water to the Project provided that such
failure or defect is not due to the action or inaction of
Customer or any of its contractors; fire, casualty; the failure
of the Lease Administrator (as such term is defined in the
Lease) to review, comment on, approve, disapprove and/or inform
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the Buildings Department of its approval of the Plans and
Specifications (as such term is defined in the Lease) for the
Project within the specified time periods, provided that such
failure is not a result of Customer's failure to submit Plans
and Specifications in sufficient detail to permit the Lease
Administrator to properly review such Plans and Specifications
or Customer's failure to submit Plans and Specifications
appropriately modified to reflect the Lease Administrator's
comments thereon; the failure of EDC to disburse any Funding
under Funding Agreement #l (as such terms are defined in the
Lease) and/or any other cause or causes not within Customer's
control that are causing a delay in Customer's performance of
its construction obligations under the Lease.
Article 2 - SALE AND PURCHASE OF ELECTRICITY
2.0 The provision of Low-Cost Power under this Agreement
is in consideration of: (1) Customer's commitment to make, or
to cause one or more of Customer's Affiliates to make, certain
investments in connection with the Project, as hereinafter
provided, and (2) Customer's commitment, except as hereinafter
provided, to retain, or to cause one or more of Customer's
Affiliates to retain, an aggregate total of 3,200 Jobs in New
York City for the duration of this Agreement pursuant to the
provisions of Article 9 hereof including, without limitation,
the last sentence of Section 9.0 hereof. Customer hereby
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commits to complete an investment associated with the Project in
an aggregate amount of no less than $5.8 million, which
represents 12.5 percent of the equalized assessed value of
Customer's facility at 229 W. 43rd Street, New York, New York.
Such investment shall be completed no later than December 31,
1995 and may include, without limitation, architectural,
engineering, legal and other professional costs and fees, and
the cost of deposits made for the purchase of printing presses
and other equipment ordered for the Project. In addition to the
$5.8 million investment required to be made by December 31,
1995, Customer commits to expend no less than $89.2 million in
connection with the contemplated construction of the Project
(including architectural and engineering costs).
2.1 Customer expects to enter into an Assignment and
Assumption Agreement whereby it will accept an assignment of the
Lease from EDC no later than October 31, 1993. In the event
that Customer (a) does not enter into such an Assignment and
Assumption Agreement by October 31, 1993 (unless Customer is
delayed or prevented from doing so by the acts or omissions of
EDC or the City) or, (b) does enter into such an Assignment and
Assumption Agreement but does not commence construction of the
Project within ten years of the date the Lease is executed,
subject to Unavoidable Delays as that term is defined in and
pursuant to the terms of the Lease, then the breach and benefit
recapture provisions of Article ll, infra, shall apply.
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2.2 Customer anticipates that construction of the Building
shall be substantially completed by the Scheduled Completion
Date. In the event that Customer does not substantially
complete construction of the Building by the Scheduled
Completion Date, then the breach and benefit recapture
provisions of Article 11, infra, shall apply.
2.3 Beginning on February 28, 1994, and on each
anniversary of such date through and concluding on February 28,
of the year following the earlier to occur of (a) the calendar
year during which Customer shall have completed or exceeded the
investment requirement set forth in Section 2.0 hereof or (b)
the calendar year in which the Construction Completion Date
occurs, Customer shall provide NYCPUS with a report of the
investments and expenditures described in Section 2.0 hereof
made during the previous calendar year (except that the first
report will contain all expenditures made from the inception of
the Project, including calendar years prior to 1993, but not
earlier than calendar year 1992) toward the investment
requirements set forth herein. Such report may be in the form
of a letter indicating for each expenditure: (a) the amount of
such expenditure, (b) a description of the expenditure, and
(c) the payee. Such data set forth in such letter shall be
certified to be correct by an authorized representative of
Customer reasonably acceptable to NYCPUS. For the sole purpose
of verifying Customer's compliance with this provision, NYCPUS
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shall have the right to examine and audit on reasonable advance
notice all written and electronic records and data directly
concerning such expenditures. Customer's failure to comply with
the investment requirements or the investment reporting
requirement shall constitute breach and subject Customer to the
termination provisions of Article 11.
2.4 The City promises and agrees to sell and Customer
promises and agrees to purchase Low-Cost Power in accordance
with the terms of this Agreement and NYCPUS' Firm Industrial
Economic Development Nuclear Power Service Tariff No. 4 and the
accompanying General Terms and Conditions, which rates and
regulations are duly established from time to time by or under
authority of Law. A copy of Power Service Tariff No. 4 is
attached hereto as Exhibit VI.
2.5 This Agreement and the furnishing of Low-Cost Power
hereunder are contingent upon the receipt of power and energy by
NYCPUS from NYPA and access to necessary transmission and
distribution facilities and subject in all respects to a
contract between NYCPUS and NYPA entitled, "Application for
Electric Service to Municipal Customers within Downstate New
York State", effective on September 10, 1990 ("the NYPA/NYCPUS
Contract") (attached hereto as Exhibit I), NYPA Service Tariff
No. 35 - Firm Nuclear Power Service-Industrial Economic
Development (attached hereto as Exhibit II), the relevant
provisions of the Official Compilation of Codes, Rules and
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Regulations of the State of New York, including but not limited
to 21 NYCRR Part 370 and 21 NYCRR Part 460, the Delivery
Agreement (attached hereto as Exhibit III), and any and all
applicable tariffs, rules and regulations of the Delivery Agent
(including without limitation Con Edison's "Schedule for
Electricity Service, PSC No. 8 - Electricity"), and any
amendment, changes, or renewals to any of the foregoing;
provided, however, that notwithstanding anything to the contrary
contained in this Section 2.5 (and without limiting the ability
of NYCPUS to reduce Customer's Contract Demand pursuant to the
provisions of Article 9 hereof): (i) the provision of Low-Cost
Power to Customer pursuant to the terms of this Agreement shall
not be diminished or suspended in a discriminatory manner if
there is a reduction in the amount of power and energy provided
by NYPA to NYCPUS or a reduction in NYCPUS' access to necessary
transmission and distribution facilities, (ii) the rates charged
to Customer for Low-Cost Power shall be at uniform,
non-discriminatory rates pursuant to applicable law, including,
without limitation, Section l005(d) of the Public Authorities
Law and (iii) the rates charged to Customer by Distribution
Agent shall at no time be higher than the lowest distribution
rate for Low-Cost Power charged by Distribution Agent to any
customer in New York City.
2.6 Service hereunder shall commence on or about May 3,
1993. Customer shall provide City prior to the commencement of
service hereunder with a signed statement indicating that
Customer agrees to purchase the quantities of power and energy
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prescribed hereunder during the contract period, and Customer is
to receive such power and energy in lieu of purchasing power and
energy from Con Edison during the term of this Agreement, such
statement to be substantially in the form of Exhibit VIII
attached hereto. Customer understands that Con Edison will not
be required to initiate delivery of power and energy to Customer
if Customer is not current on its payments for service from Con
Edison and has not paid its outstanding financial obligations to
Con Edison, if any.
2.7 Notwithstanding anything to the contrary contained in
this Agreement including, without limitation, references stating
that NYCPUS will "provide" or "discontinue" service to Customer,
the parties to this Agreement acknowledge and agree that the
actual delivery of electricity to Customer at the Project and at
Customer's 43rd Street Facility shall be performed by Con Edison
pursuant to the Delivery Agreement and any other applicable
rules, regulations or agreements governing the relationship
between Con Edison and Customer and that the "provision" or
"discontinuance" of Low-Cost Power by NYCPUS shall relate to an
allocation of Low-Cost Power with a corresponding change in the
manner in which Customer is billed for that portion of its
consumption of power that is equal to its allocation of Low-Cost
Power, and shall not be construed to limit in any way the amount
of power that Customer shall be entitled to purchase from Con
Edison or the amount of power that Con Edison shall be obligated
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to sell to Customer pursuant to the Delivery Agreement and any
other applicable rules, regulations, or agreements governing the
relationship between Con Edison and Customer.
Article 3 - TYPE OF SERVICE
3.0 All Low-Cost Power to be sold and distributed pursuant
to the provisions of this Agreement shall be 60 hertz electric
service supplied to NYCPUS from NYPA, pursuant to a resolution
of NYPA's Trustees to be attached hereto as Exhibit IV.
3.1 The points of delivery of all Low-Cost Power supplied
under this Agreement shall be determined in accordance with the
Delivery Agent's procedures for establishing point of service
termination. Customer will deal directly with Delivery Agent in
establishing the service point at which Delivery Agent will
deliver Low-Cost Power to Customer's premises and in
establishing, reinforcing, maintaining and removing Delivery
Agent's facilities related to the provision of service under
this Agreement. Customer will notify NYCPUS of delivery points
and facility modifications and reinforcements so determined.
Upon Customer's request, NYCPUS shall use reasonable efforts to
cause Delivery Agent to accommodate Customer's reasonable needs
and desires in establishing points of delivery and in
establishing, reinforcing, maintaining and removing Delivery
Agent's facilities related to the provision of service under
this Agreement. NYCPUS shall enforce (or commence to enforce
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and pursue such enforcement diligently) the obligations of
Delivery Agent under the Delivery Agreement in the event that
Delivery Agent does not abide by the terms of the Delivery
Agreement governing its treatment of Customer.
Article 4 - TERM
4.0 Power service pursuant to this Agreement shall begin on
or about May 3, 1993 and shall continue through June 30, 2010,
unless extended pursuant to the provisions of Section 5.3 hereof
or otherwise, or terminated at an earlier date pursuant to the
provisions hereof. Before this Agreement shall become
effective, it shall be subject to approval of the Low-Cost Power
Allocation Board and NYPA.
4.1 Customer shall have the right, to be exercised at
Customer's sole discretion at any time during the term of this
Agreement, to terminate this Agreement effective as of the date
(the "Early Termination Date") to be set forth in a written
notice given by Customer to NYCPUS (the "Early Termination
Notice"), provided that (i) the Early Termination Date shall be
the last day of a NYPA Capability Period, (ii) the Early
Termination Notice shall be given at least twelve (12) months
prior to the Early Termination Date and (iii) the Early
Termination Date shall not occur prior to the end of the fourth
(4th) NYPA Capability Period during which Customer receives
Low-Cost Power pursuant to the terms of this Agreement.
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Article 5 - QUANTITY OF ELECTRICITY TO BE SUPPLIED
5.0 Beginning on or about May 3, 1993, the City shall
supply 6.0 megawatts of Low-Cost Power to Customer's 43rd Street
Facility. This power shall be supplied to the 43rd Street
Facility until the College Point Power Commencement Date.
5.1 Beginning on the College Point Power Commencement Date,
NYCPUS will provide 6.0 megawatts of Low-Cost Power to Customer
(or such greater amount not to exceed 10.5 megawatts as Customer
may designate in the College Point Power Commencement Notice) at
the Project. NYCPUS shall simultaneously discontinue supplying
Low-Cost Power to Customer's 43rd Street Facility and, subject
to the provisions of Section 2.7 hereof, Customer's power
requirements at the 43rd Street Facility shall thereafter be
supplied by Con Edison at Con Edison's then-applicable rates for
Customer. In no case shall Low-Cost Power be allocated
simultaneously to Customer's 43rd Street Facility and the
Project. The cost of the Low-Cost Power to be provided to the
Project will be further reduced through the reduction provided
as set forth in the General City Law Sections 25-s and 25-t.
NYCPUS shall provide Low-Cost Power to the Project through June
30, 2010 or such later date to which the term of this Agreement
may be extended pursuant to the provisions of Section 5.3 hereof
or otherwise.
5.2 In the event that Customer shall require more than 6.0
megawatts of Low-Cost Power on the College Point Power
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Commencement Date or at any time thereafter in one or more
incremental increases not to exceed the Maximum Power
Allocation, Customer shall so advise NYCPUS by written notice
(an "Allocation Increase Notice"), which notice shall (i)
specify the first day of the NYPA Capability Period on which
Customer desires such increase or increases to become effective
and (ii) be given at least six (6) months prior to the first day
of such NYPA Capability Period. NYCPUS shall provide Customer
with such increased amounts of Low-Cost Power on the first day
of the NYPA Capability Period specified in the Allocation
Increase Notice; provided, however, that if NYCPUS does not have
sufficient Low-Cost Power to fulfill the request set forth in
any Allocation Increase Notice (taking into account any power
from NYCPUS' Reserved Allocation that NYCPUS has committed to
provide to another customer from the start of the next NYPA
Capability Period), NYCPUS shall fulfill such request to the
full extent that it is able to on the first day of the NYPA
Capability Period designated in the Allocation Increase Notice
and shall thereafter fulfill such request in its entirety on the
first day of the first NYPA Capability Period thereafter on
which it has sufficient Low-Cost Power, but in no event later
than the first day of the NYPA Capability Period occurring on or
immediately after the two (2) year anniversary of such
Allocation Increase Notice. All increases in Contract Demand
shall be in 100 kilowatt increments. Customer's Contract Demand
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may be permanently reduced upon Customer's request and upon
twelve (12) months notice to NYCPUS, with such changed Contract
Demand always to occur at the beginning of a NYPA Capability
Period and always to occur in 100 Kilowatt increments.
5.3 NYCPUS shall use its best efforts to obtain extensions
of (i) the NYPA/NYCPUS Contract and (ii) NYPA's approval of the
extension of the term of this Agreement and if such extensions
are obtained the term of this Agreement shall be extended and
NYCPUS shall give to Customer the same allocation of Low-Cost
Power for the full duration of any such extension at rates which
will at all times be (i) uniform, non-discriminatory rates for
Low-Cost Power pursuant to applicable law, including, without
limitation, Section l005(d) of the Public Authorities Law, and
the most favorable Con Edison distribution rate for Low-Cost
Power given to any customer in New York City and (ii) further
reduced through the reduction provided in New York City's Energy
Cost Savings Program as set forth in General City Law Section
25-s and 25-t. In the event that the NYPA/NYCPUS Contract is
extended but NYPA refuses to approve the extension of the term
of this Agreement for an allocation of 10.5 megawatts of
Low-Cost Power, NYCPUS shall use best efforts to obtain any
required approvals for the extension of the term of this
Agreement for up to 4.5 megawatts of NYCPUS' Reserved Allocation.
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Article 6 - USE OF SERVICE
6.0 All Low-Cost Power sold and distributed hereunder
shall be used by Customer for its own use according to the
schedule set forth in Article 5, supra. Customer agrees not to
resell or otherwise redistribute such Low-Cost Power to any
other Persons other than "Permitted Users" (hereinafter
defined). For purposes hereof, Permitted Users shall mean
subtenants, licensees and other occupants of the Project whose
presence at the project facilitates or is in connection with
Customer's use of the Project for printing and uses related
thereto. For example, if Customer were to sublease to an
operator a garage on the Project used by Customer's vehicles,
such operator would be a Permitted User.
Article 7 - BILLING
7.0 Customer agrees to pay City for Low-Cost Power billed
hereunder in accordance with the NYCPUS General Terms and
Conditions and the NYCPUS Service Tariff No. 4. Copies of the
NYCPUS General Terms and Conditions and the NYCPUS Service
Tariff No. 4 are attached hereto as Exhibits V and VI. In the
event that such General Terms and Conditions or Tariff No. 4 are
changed, as provided by Law, Low-Cost Power supplied after such
change is to be paid for in accordance with such change, except
to the extent that such change would conflict with the
provisions of Sections 5.3 and 7.6 hereof. NYCPUS shall provide
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Customer with timely notice of any such change in the General
Terms and Conditions or Service Tariff No. 4.
7.1 Customer agrees that, within thirty (30) days after the
initiation of service hereunder, it will provide NYCPUS with a
security deposit. The security deposit, as provided in 21 NYCRR
451.1 and in the NYCPUS General Terms and Conditions, shall
equal Five Hundred Sixty Thousand ($560,000) Dollars. NYCPUS
shall hold the security deposit in a separate interest bearing
thirty (30) day, automatically renewing certificate of deposit
at a Customer selected bank from a list provided by NYCPUS. The
deposit shall be held in the account for two years, at which
time, if Customer is not delinquent in the payment of bills to
NYCPUS, the account balance with accrued interest shall be
returned to Customer. If Customer is delinquent, the account
balance shall be used as an offset account. Notwithstanding the
foregoing, if the security deposit is returned to Customer, and
Customer subsequently becomes delinquent in its payments to
NYCPUS under this Agreement, or if NYCPUS determines in
accordance with the applicable provisions of 21 NYCRR 451.1 and
the NYCPUS General Terms and Conditions that such measure is
warranted, NYCPUS may require Customer to again provide a
security deposit equal to two months' estimated billings on the
same terms as for the initial security deposit.
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7.2 For the purpose of rendering bills to Customer, the
actual demand and billing demand under this Agreement shall be
determined in accordance with the NYCPUS applicable Service
Tariff.
7.3 The City will submit bills to Customer in accordance
with the provisions set forth in the General Terms and
Conditions. In the event that there is a dispute on any item of
a current bill rendered by the City, Customer shall pay such
bill in its entirety within the prescribed period; provided,
however, that upon delivery of a notice by Customer to City of a
billing dispute hereunder, (i) City shall reasonably determine
whether City is obligated to currently pay any such disputed
amount to Delivery Agent or NYPA, in which case Customer is
obligated to currently pay such disputed amount to City, and
(ii) if City has a defense to avoid current payment of such
disputed amount, City shall assert such defense in which case
Customer may avoid current payment of such disputed amount to
City. The City shall promptly notify Customer of its
determination regarding obligations for current payment. In any
event, including disputes regarding past bills, City shall
diligently pursue any defense to payment available to it against
third parties in order to resolve any billing dispute arising
hereunder. If Customer is obligated to pay disputed amounts and
it is thereafter determined that Customer should not have been
obligated to pay all or any portion of such amounts, an
appropriate refund will be made to Customer by the City,
-24-
together with any interest collected by the City in connection
therewith. Customer may designate by written notice to City an
agent for purposes of receiving bills and making payments under
this Agreement, provided that any such designation shall not
relieve Customer of any liability for such agent's or Customer's
failure to make any payments required hereunder.
7.4 Customer shall arrange directly with Delivery Agent for
establishing, reinforcing, maintaining and removing facilities
related to the interconnection of Customer's facilities to those
of the Delivery Agent. Customer shall be responsible for all
costs lawfully charged by Delivery Agent to establish such
interconnection.
7.5 Customer is on notice that pursuant to the Billing
Adjustment section of the applicable Con Edison Economic
Development Delivery Service Tariff, NYCPUS is authorized to act
as collection agent for Con Edison regarding: (a) a billing
adjustment per kilowatt/hour permitting the assessment of a
charge or credit attributable to a 40-day deferred fuel cost for
the billing period immediately preceding Customer's becoming a
customer of NYCPUS, and (b) a charge representing PASNY's share
of the savings passed on to Madison Square Garden in accordance
with Section 3, Chapter 459, 1982 N.Y. Laws, allocated to
service provided under the Rate Schedule.
-25-
7.6 Notwithstanding anything to the contrary contained in
this Agreement, throughout the term of this Agreement and any
extension thereof, the rates charged to Customer for Low-Cost
Power shall at all times be (i) uniform, non-discriminatory
rates pursuant to applicable law, including, without limitation,
Section l005(d) of the Public Authorities Law, and the most
favorable Con Edison distribution rate for Low-Cost Power given
to any customer in New York City and (ii) further reduced
through the reduction provided by New York City's Energy Cost
Savings Program as set forth in General City Law Sections 25-s
and 25-t.
Article 8 - APPORTIONMENT OF SERVICE
8.0 If Customer combines service under this Agreement with
power and energy from other sources, the total power and energy
utilized by Customer from all sources at a particular facility
shall be apportioned as determined by the City, consistent with
any applicable requirements of Law, NYPA, and the Delivery
Agreement. The City will consult with Customer prior to
determining any such apportionment.
8.1 The portion of Customer's electricity requirements at a
particular facility in excess of that supplied by the City may
be supplied by Con Edison and billed at the appropriate rates
and charges of Con Edison's "Schedule for Electricity - PSC No.
8". If Customer receives retail electric service from both the
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City and Con Edison at such facility, then, pursuant to the
Delivery Agreement, Con Edison shall, as to the electricity
purchased by Customer from Con Edison, perform all billing,
metering, collection and customer service functions as it
customarily performs for customers purchasing their full
requirements from Con Edison. Customer, or its designated agent
pursuant to Section 7.3, will deal directly with Con Edison
respecting metering, billing, payment and collection for
Customer's purchases from Con Edison.
Article 9 - EMPLOYMENT AND POWER USAGE LEVELS
9.0 During the term of this Agreement, Customer shall,
subject to the provisions of this Article 9, maintain in New
York City through direct employment or subcontracting the
"Minimum Production Jobs" and the "Minimum Non-Production
Jobs." For purposes of this Agreement, the terms "Minimum
Production Jobs" and "Minimum Non-Production Jobs" shall mean,
respectively, (a) 1,000 full-time equivalent production Jobs and
(b) 2,200 full-time equivalent non-production Jobs, or such
lesser number of full-time equivalent production Jobs or
full-time equivalent non-production Jobs, as the case may be,
that Customer may request and NYCPUS may approve pursuant to the
provisions of Section 9.1 hereof from time to time by written
notice (the "Job Recalculation Notice") given by Customer to
NYCPUS, in conjunction with Customer's annual report provided
-27-
pursuant to Section 9.2 hereof, as the then current number of
full-time equivalent production and/or non-production Jobs. For
both such categories of Jobs, such Jobs shall be associated with
the 1,000 full-time equivalent production Jobs and the 2,200
full-time equivalent non-production Jobs in each case currently
associated with the New York Times Newspaper in New York City
and the functions performed in connection with such Jobs as of
the date hereof, as such functions may evolve and be modified
and as such Jobs may be replaced over the term of this Agreement.
9.1 Any Job Recalculation Notice given by Customer shall
indicate the basis for the reported change in the Minimum
Production Jobs and/or the Minimum Non-Production Jobs and shall
indicate the effective date or dates of such changes.
Notwithstanding anything to the contrary set forth in this
Agreement, there shall be no reduction in Customer's Contract
Demand or Maximum Power Allocation as the result of a reduction
in the Minimum Production Jobs or the Minimum Non-Production
Jobs if and to the extent that such reductions are due to events
including, but not limited to, industry productivity trends,
staffing and labor agreements, business cycles, operational
needs, technological advances or temporary factors such as
strikes, and Customer's rebuilding, repair, maintenance and
upgrading of its facility and equipment. Each Job Recalculation
Notice shall be accompanied by supporting documentation and
NYCPUS shall approve any variation in employment levels with
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respect to which Customer has submitted documentation sufficient
in NYPA's and NYCPUS' reasonable opinion to establish such
variation in employment levels. Promptly after its receipt of a
Job Recalculation Notice, NYCPUS shall notify Customer in
writing that either (a) it approves the variation in employment
levels set forth in such Job Recalculation Notice or (b) it
disapproves such variation in employment levels, in which event
it shall set forth in detail its reasons for such disapproval
and specify any variation in employment levels that it does
approve.
9.2 Beginning on February 28, 1994, and on each February
28, during the term of this Agreement, Customer shall provide
NYCPUS with an annual report indicating for the preceding
calendar year, on a monthly basis, the total number of full-time
equivalent production Jobs and full-time equivalent
non-production Jobs at its facilities in New York City. NYCPUS
shall provide Customer with the form of the annual report (Form
RF l), which shall be in the form attached hereto as Exhibit
VII, and the request for its completion, with not less than
sixty days advance notice. Such report shall consist of two
separate Forms RF l - one labeled "Full-Time Equivalent
Production Jobs" and the other labeled "Full-Time Equivalent
Non-Production Jobs" and (i) all references on Form RF 1 to
forms provided to the Unemployment Insurance Division of the New
York State Department of Labor shall be stricken and (ii) the
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number of employees reported on Form RF 1 shall be the monthly
number of full-time equivalent Jobs computed pursuant to Section
9.9 hereof. Such completed report shall be certified to be
correct by an officer of Customer, or such other person
authorized by Customer to prepare and file such report.
Customer shall reasonably promptly notify NYCPUS of any material
inaccuracies or changed circumstances of which Customer becomes
aware which would render inaccurate or misleading in a material
manner any annual report submitted to NYCPUS pursuant to this
Section. NYCPUS and NYPA also shall have the right to examine
and audit (but no more frequently than twice in any twelve-month
period) on reasonable advance written notice all written and
electronic records and data directly concerning employment
levels of Customer in New York City for the purpose of
determining whether the prescribed number of production and
non-production Jobs are being maintained by Customer in New York
City. The annual report for calendar year 1993 shall include
all twelve (12) months of 1993, even though the term of this
Agreement began in May, 1993.
9.3 In the event that Customer does not maintain in New
York City ninety percent (90%) of the Minimum Production Jobs
and the Minimum Non-Production Jobs in effect from time to time
pursuant to Section 9.0 hereof, NYCPUS may, subject to the
provisions of Article 14 (Force Majeure) hereof, reduce
proportionately Customer's power allocation associated with such
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category of Jobs in the manner set forth in Section 9.6 hereof.
For the purposes of calculating such proportionate power
reduction, 1 megawatt shall be associated with the Minimum
Non-Production Jobs and the remainder of the then existing
Contract Demand shall be associated with the Minimum Production
Jobs.
9.4 NYCPUS shall determine compliance with the 90% minimum
requirement for each calendar year by comparing the reported
annual average number of production Jobs and non-production Jobs
reported by Customer with the Minimum Production Jobs and the
Minimum Non-Production Jobs, respectively, for such calendar
year as determined pursuant to Section 9.0 hereof. For each
category of Jobs, the annual average number of such Jobs shall
be the sum of the monthly number of such Jobs reported pursuant
to Section 9.2 hereof divided by twelve (including calendar year
1993). It is hereby stipulated that a reduction in the Contract
Demand or Maximum Power Allocation pursuant to this Article
shall not take place if Customer can indicate that any reduction
in the number of Jobs is due to events including but not limited
to, industry productivity trends, staffing and labor agreements,
business cycles, operational needs, technological advances and
such temporary factors as strikes and Customer's rebuilding,
repair, maintenance and upgrading of its facility and
equipment.
-31-
9.5 If Customer does not comply with the 90% requirement
and fails to cure such non-compliance within ninety (90) days
after its receipt of written notice from NYCPUS, NYCPUS may,
subject to the provisions of Article 14 (Force Majeure) hereof,
permanently reduce the Maximum Power Allocation and the then
current Contract Demand; provided, however, that all future
increases in the Contract Demand, not to exceed the permanently
reduced Maximum Power Allocation, are contingent upon the
submission to NYCPUS of documentation sufficient in NYCPUS'
reasonable opinion to establish increased load requirements. In
the event that NYCPUS reduces the Contract Demand pursuant to
the provisions of this Section 9.5, the reduced Contract Demand
shall be determined by the formula shown below. The Maximum
Power Allocation shall then be immediately reduced by the same
amount as the reduction in the Contract Demand.
Reduced Contract Demand = the sum of:
1.0 Megawatt x reported non-production Jobs
-------------------------------------------
Minimum Non-Production Jobs
plus
(Contract Demand - 1.0 Megawatt) x reported production Jobs
-----------------------------------------------------------
Minimum Production Jobs
Immediately subsequent to any such permanent reduction, the
required number of Jobs pursuant to this Agreement shall be
reduced to the reported number of production and non-production
-32-
Jobs in the report for the immediately preceding year that
resulted in such power reduction.
9.6 From and after January 1, 1996, if the average of
Customer's six (6) highest Actual Demands for Low-Cost Power
supplied under this Agreement in any consecutive twelve (12)
month delivery period is less than 90% of the then current
Contract Demand, the City may reduce the Contract Demand. The
maximum amount of such reduction shall be the Contract Demand
minus the amount by which the average of the six (6) highest
Actual Demands in such twelve (12) month delivery period is
less than 90% of the Contract Demand. Thus, for example, if
the average of Customer's six (6) highest Actual Demands during
a consecutive twelve (12) month period is 89% of the Contract
Demand, the Contract Demand will be reduced by 1%. Any such
reduction shall be rounded to the nearest 100 kilowatts.
Notwithstanding anything to the contrary contained herein: (i)
in the event that any such consecutive twelve (12) month period
contains one or more "Summer Temporary Reduction Months" (as
such term is hereinafter defined), the number of Actual Demands
averaged for purposes of this Section 9.6 shall be the
remainder of (a) six (6) minus (b) the number of Summer
Temporary Reduction Months during such consecutive twelve (12)
month period (e.g., if July and August were Summer Temporary
Reduction Months, the computation to be performed hereunder
would be with respect to Customer's four (4) highest Actual
Demands during a consecutive twelve (12) month period) and (ii)
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in the event that any such consecutive twelve (12) month period
contains one or more "Winter Temporary Reduction Months" (as
such term is hereinafter defined), the number of months in such
consecutive twelve (12) month period shall be increased by the
number of Winter Temporary Reduction Months (e.g., if December
were a Winter Temporary Reduction Month, the computation to be
performed hereunder would be with respect to Customer's six (6)
highest Actual Demands during a consecutive thirteen (13) month
period). For purposes hereof: (i) a "Summer Temporary
Reduction Month" shall mean a "Temporary Reduction Month" (as
such term is hereinafter defined) that occurs during the period
designated as a Summer Billing Period by Delivery Agent and
(ii) a "Winter Temporary Reduction Month" shall mean a
Temporary Reduction Month that occurs during the period
designated as the Winter Billing Period by Delivery Agent. For
purposes hereof, a "Temporary Reduction Month" shall mean any
month during which Customer's highest Actual Demand is less
than 90% of the then current Contract Demand due to temporary
causes such as events of force majeure, strikes, damage to or
defects in the construction, design or manufacture of a
facility or equipment, or the upgrading, maintenance or
rebuilding of a facility or equipment.
9.7 Any permanent reduction pursuant to this Article 9
shall be made upon 60 days prior written notice to Customer,
which notice shall be given after the expiration of any
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applicable cure period, and shall be consistent with the
applicable provisions of Law, the NYPA/NYCPUS Contract, and the
terms of the Delivery Agreement. Before making any such
reduction the City shall give Customer a full and fair
opportunity to present extenuating events and circumstances and
the City shall act in a reasonable manner in making its
determination as to whether circumstances justify making such
reductions.
9.8 Customer may, at any time after having received
service, permanently reduce the Contract Demand in whole 100
kilowatt amounts; provided, however, that Customer shall
provide the City with at least twelve (12) months' prior
written notice of its intent to make such election and such
reduction shall take place as of the first day of a NYPA
Capability Period. Customer's financial obligation with regard
to the Contract Demand and any other charges shall be reduced
accordingly. If requested by Customer, the City will in good
faith endeavor to obtain NYPA approval for such reduction
within a shorter time period.
9.9 For purposes of this Agreement, monthly full-time
equivalent production Jobs and monthly full-time equivalent
non-production Jobs shall be computed separately, using the
following formula:
Monthly Full-Time = Aggregate Monthly Hours
-----------------------
Equivalent Jobs Stipulated Monthly Hours
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For purposes of this Agreement, the term "Aggregate Monthly
Hours" shall mean the total number of hours credited during the
month being reported on for regular time, overtime, vacation,
holiday, sick leave, disability and other employer-paid hours
for all production or non-production workers, as the case may
be, associated with the Jobs or functions described in the last
sentence of Section 9.0 hereof, whether employed by Customer,
an Affiliate of Customer or one or more subcontractors or
subsubcontractors of Customer or an Affiliate of Customer. For
purposes of this Agreement, the term "Stipulated Monthly Hours"
shall mean, with respect to each month being reported on, the
product of (x) thirty-four (34) hours, multiplied by (y) the
number of weeks in the month being reported on (e.g., 4 3/7
weeks in January, multiplied by 34 equals 150.6 Stipulated
Monthly Hours); provided, however, that Customer may revise the
term "Stipulated Hours" for purposes hereof upon submitting
documentation reasonably satisfactory to NYCPUS that, due to
reasons such as the renegotiation of union contracts, the
average full-time employee of Customer is employed less than
thirty-four (34) hours per week.
Article 10 - INTENTIONALLY OMITTED
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Article 11 - BREACH OF CONTRACT
11.0 Notwithstanding any other rights and remedies
provided to the City herein or in NYCPUS's General Terms and
Conditions of Service, and without derogation of such rights or
remedies, the City may, after the expiration of any applicable
notice, grace or cure period provided for herein, elect to
terminate this Agreement if Customer materially breaches any of
the following obligations hereunder: (i) the obligation to
enter into the Assignment and Assumption Agreement referred to
in Section 2.1 hereof by October 31, 1993 (unless Customer is
delayed or prevented from doing so by the acts or omissions of
EDC or the City), (ii) the obligation to cause the Construction
Commencement Date to occur within ten (10) years after the date
the Lease is executed, subject to Unavoidable Delays, (iii) the
obligation to cause the Construction Completion Date to occur
by the Scheduled Completion Date, subject to Unavoidable
Delays, (iv) the obligation to make the payments required
pursuant to the terms of this Agreement, (v) the obligation to
avoid an Abandonment of the Project, and (vi) the obligation to
comply with the Job reporting requirements set forth herein.
NYCPUS shall provide Customer with written notice of breach and
notice that the Agreement is subject to termination. As set
forth in the General Terms and Conditions regarding
discontinuance of service, NYCPUS shall afford Customer the
opportunity to cure monetary breach within fifteen days after
-37-
delivery of such written notice. NYCPUS shall afford Customer
the opportunity to cure (or commence to cure) non-monetary
breach within thirty (30) days. Should Customer not cure (or
commence to cure and diligently pursue such cure) within such
thirty (30) day period, or agree to take such other corrective
action as may be reasonably satisfactory to the Director, this
Agreement is terminable if such non-monetary breach is with
respect to one of the obligations described in the first
sentence of this Section 11.0. In the event of a breach of the
Agreement related to Customer's failure to pay NYCPUS,
termination shall be in accordance with the provisions set
forth in the General Terms and Conditions.
11.1 If this Agreement is terminated because either (i)
Customer does not enter into the Assignment and Assumption
Agreement referred to in Section 2.1 hereof by October 31, 1993
(unless Customer is delayed or prevented from doing so by the
acts or omissions of EDC or the City), (ii) Customer informs
EDC or NYCPUS in writing that it intends to abandon the
Project, (iii) Customer fails to cause the Construction
Commencement Date to occur within ten (10) years of the date
the Lease is executed, subject to Unavoidable Delays, or (iv)
Customer fails to complete construction of the Building by the
Scheduled Completion Date, subject to Unavoidable Delays, or if
any of the events described in subsections (i) through (iv) of
this Section ll.l shall occur after Customer has exercised its
-38-
option to terminate this Agreement pursuant to Section 4.l
hereof, then Customer shall be liable to repay NYCPUS the value
of Customer's accrued savings, calculated as the difference
between the cost of service at the then-applicable Con Edison
retail rate and the cost of service from NYCPUS's Firm
Industrial Economic Development Nuclear Power Service Tariff
No.4, with non-compounded interest at the rate of 5.73% per
annum.
11.2 The liability of Customer hereunder for Customer's
failure to make payments hereunder shall be limited to the
amount of such payments, with interest at the rate of one and
one-half (l l/2%) percent per month from the date such payment
was due until the date such payment is made. The liability of
Customer hereunder for non-monetary breach of this Agreement or
for any other claim against Customer arising under this
Agreement other than claims described in the first sentence of
this Section 11.2, shall be limited to Customer's accrued
savings, calculated in accordance with the provisions of
Section 11.1 hereof. None of the directors, officers,
principals, partners, shareholders, employees, agents or
servants of Customer shall have any liability (personal or
otherwise) under this Agreement. This Section 11.2 shall
survive the expiration of this Agreement.
-39-
11.3 Customer and NYCPUS anticipate that the Lease will be
finalized and entered into prior to October 31, 1993.
Customer, the City and EDC have not, as of the date hereof,
reached agreement as to the covenants applicable to Customer
that should be included in the Lease (the "Non-Discrimination
and Affirmative Action Covenants") with respect to:
(i) discrimination against employees or applicants for
employment because of race, creed, religion, color or certain
other statuses with respect to employment decisions, (ii) the
statement in solicitations or advertisements for employees by
or on behalf of Customer that all qualified applicants will be
afforded equal employment opportunity, (iii) non-discrimination
against minority and women-owned businesses in the awarding of
contracts and subcontracts and (iv) the submission of workforce
utilization analyses. Customer, the City, and EDC have also
not reached agreement, as of the date hereof, as to the
remedies (the "Affirmative Action Remedies") that should be
available in the event of a breach by Customer of the
Non-Discrimination and Affirmative Action Covenants. Customer
and NYCPUS hereby agree that upon the execution and delivery of
the Lease and the Assignment and Assumption Agreement in
connection therewith, the Non-Discrimination and Affirmative
Action Covenants and the Affirmative Action Remedies will be
deemed to be incorporated herein by reference (such
incorporation by reference to be retroactive to the date of
-40-
this Agreement), except to the extent that their application
would be inapplicable to this Agreement or the context may
otherwise require; provided, however, that: (i) any
restrictions contained in the Lease with respect to the
utilization or application of the Affirmative Action Remedies
shall also be applicable to NYCPUS and NYPA hereunder and
(ii) in no event may NYCPUS or NYPA terminate or seek to
terminate this Agreement, reduce or suspend Customer's Contract
Demand or Maximum Power Allocation, or increase the rates
charged to Customer for Low-Cost Power as the result of a
breach of the Non-Discrimination and Affirmative Action
Covenants.
Article 12 - THIRD PARTY BENEFICIARY
Pursuant to NYPA's Procedures for Allocation of Industrial
Power and Enforcement of Contracts (21 NYCRR Part 370), NYPA
shall be a third party beneficiary of the contractual
commitments made by Customer under this Agreement, including
the provisions of Article 2 (Investment in Real Property and
Jobs retention), Article 9 (Employment and Power Usage Levels)
and Article 10 (Affirmative Action), and NYPA shall have the
independent right to enforce all such commitments.
-41-
Article 13 - RECORDS
Customer agrees to maintain any and all books, documents,
papers and records which are directly pertinent to, and to the
extent necessary to confirm Customer's compliance with, its
obligations under this Agreement, including the real property
investment, Jobs and affirmative action requirements described
herein, for a period of six (6) years after Customer's
compliance with such obligations and to grant access to such
records to the City or NYPA or any of their duly authorized
representatives for the purpose of making audits, examinations,
excerpts, and transcriptions.
Article 14 - FORCE MAJEURE
The term "force majeure" as used herein, shall include but
not be limited to destruction, condemnation, repairs,
rebuilding or defects in the construction, design or
manufacture of part or all of Customer's 43rd Street Facility
or the Project or the equipment located in either such
facility, acts of God, fires, floods, storms, strikes, labor
disputes, riots, insurrections, acts of war (whether declared
or otherwise), unforeseeable acts of governmental, regulatory,
or judicial bodies, or any other unforeseeable causes beyond
the reasonable control of the party claiming force majeure. If
either party because of force majeure is rendered wholly or
partly unable to perform its obligations under this Agreement,
-42-
except for the obligation to make payments of money, 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, within thirty (30) days
after it becomes aware or should have become aware that it
would be unable to perform, gives the other party written
notice describing the particulars of the occurrence;
(b) the suspension of performance is of no greater scope
and of no longer duration than is required by the force majeure;
(c) no obligations of either party which arose before the
occurrence causing the suspension of performance are excused as
a result of the occurrence; and
(d) the non-performing party endeavors to remedy its
inability to perform.
This subparagraph shall not require the settlement of
any strike, walkout, lockout or other labor dispute on terms
which, in the sole judgment of the party involved in the
dispute, are contrary to its interest. It is understood and
agreed that the settlement of strikes, walkouts, lockouts or
other labor disputes shall be entirely within the discretion of
the party having the difficulty. Customer shall assume the
risk for any and all Contract Demand charges and/or other
minimum charges which are lawfully due and owing under NYCPUS'
applicable tariff, and Customer shall pay any and all such
amounts to the City when due, regardless of the occurrence of
-43-
force majeure, as defined in this Article, except to the extent
that this Agreement expressly provides to the contrary. Upon
the occurrence and continuance of an event of force majeure,
the City agrees to use its best efforts to obtain from NYPA or
Delivery Agent a temporary reduction in the applicable Contract
Demand, or a waiver of Contract Demand or other minimum
charges, to the extent Customer's electricity requirements are
reduced by the occurrence and continuance of such event of
force majeure.
Article 15 - ASSIGNABILITY OF AGREEMENT
This Agreement shall not be assigned without the prior
consent of the City. Any assignee of the rights of the
Customer hereunder shall be subject to all of the terms of this
Agreement. Notwithstanding anything to the contrary contained
herein, Customer shall have the right to assign this Agreement
to an Affiliate of Customer without the City's consent.
Notwithstanding such an assignment, Customer shall remain fully
liable with the performance and observance of the obligations
of Customer under this Agreement.
Article 16 - NOTICES
All notices under this Agreement shall be in writing and
shall be deemed to have been sufficiently given or served for
all purposes as of the date when sent by hand, or by a national
-44-
overnight courier service, or by certified or registered mail,
return receipt requested, and addressed as follows (or to such
other addresses as may from time to time be designated by the
City or Customer by notice delivered to the other in accordance
with this Article 16):
For the City:
Director
New York City Public Utility Service
75 Park Place - Sixth Floor
New York, New York 10007
For Customer:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: Solomon B. Watson IV, Esq.
General Counsel
and to:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: Mr. David Thurm
Executive Director of Project Development
with a copy in the same manner sent to Customer to:
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017
Attention: Martin D. Polevoy, Esq.
Article 17 - MODIFICATIONS TO AGREEMENT
All previous communications between the parties hereto,
either verbal or written, with reference to the subject matter
-45-
of this Agreement are hereby abrogated, and this Agreement, duly
accepted and approved, constitutes the Agreement between the
parties hereto, and no modifications of this Agreement shall be
binding upon the parties or either of them unless such
modifications shall be in writing, duly accepted by Customer and
executed by NYCPUS.
IN WITNESS WHEREOF, the Parties have executed this Agreement
made as of this May 3, 1993 at New York, New York.
Approved as to form: THE CITY OF NEW YORK
/s/ By: /s/
- ---------------------------- ----------------------------
Acting Corporation Counsel Director, New York City
of the City of New York Public Utility Service
THE NEW YORK TIMES NEWSPAPER
DIVISON OF THE NEW YORK
TIMES COMPANY
By: /s/
----------------------------
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EXHIBIT IV
----------
April 27, 1993
5. Allocation of FitzPatrick Power to Citibank, N.A.,
Republic New York Corporation, and New York Times
Company
--------------------------------------------------
The President submitted the following report:
SUMMARY
- -------
"The Trustees are requested to approve the allocation of
FitzPatrick industrial power to Citibank, N.A. ('Citibank'),
Republic New York Corporation ('Republic'), and the New York
Times Newspaper Division of the New York Times Company ('New York
Times') as listed in Exhibit '5-A'.
BACKGROUND
- ----------
"On March 4, 1993, the Economic Development Power Allocation
Board ('EDPAB') recommended the allocation of 6.6 MW of Economic
Development Power ('EDP') to Citibank and 1.0 MW to Republic for
job retention purposes. The applicable provisions of the
Economic Development Law require the unanimous approval of all
four EDPAB members for job retention allocations. The three
members present on March 4, 1993, voted in favor of approval.
EDPAB intends to meet again within several months to ratify these
recommendations. In the interim it is recommended that the
Authority make temporary allocations of FitzPatrick power to the
companies. When EDPAB confirms its recommendation to the
Authority, the necessary permanent EDP power allocations would
commence.
"On November 24, 1992, the Trustees approved the allocation
of 6.0 MW of EDP to the New York Times on the basis of a
recommendation by EDPAB. The New York City Public Utility
Service ('NYCPUS') has requested the allocation of an additional
4.5 MW of power from the 50 MW block of FitzPatrick industrial
power reserved for NYCPUS and other downstate municipal
distribution agencies ('MDAs'). Approximately 33 MW of this
amount were reserved for NYCPUS.
"The proposed FitzPatrick allocations would be sold to NYCPUS
under an existing Authority contract for resale to the designated
consumers. Service to these companies would commence on or about
May 1, 1993.
DISCUSSION
- ----------
"Citibank is consolidating its operations and evaluating
relocation options for several divisions particularly its
Financial Institutions and Transaction Services Group ('FITS')
which has an existing operation in Tampa, Florida. After
discussions with the New York City Economic Development
Corporation ('NYCEDC'), Citibank has proposed to commit to retain
most of its non-retail employees in New York City, as well as to
bring some jobs into the city, primarily at four facilities which
would be renovated and upgraded at a cost of $73 million.
"Citibank has requested 6.6 MW of EDP for the energy
intensive FITS operation which will be enlarged at 111 Wall
Street. Citibank would commit to maintain at least 10,500
non-retail jobs in New York City (1,428 of these jobs would be
consolidated at 111 Wall Street), resulting in a ratio of 1,590
jobs per megawatt. The renovation projects will utilize energy
efficient air handling and lighting equipment. Savings are
estimated to be approximately $700,000 annually over Consolidated
Edison Company of New York, Inc. ('Con Edison's') standard rates
for the full allocation which would have a term ending June 30,
2010.
"Republic is a New York City-based commercial bank which has
acquired the Manhattan Savings Bank and Williamsburg Savings
Bank. The bank has examined space options for its growing
operations. The lowest cost sites are in New Jersey, but NYCEDC
has discussed incentives that would help reduce the cost gap,
including an allocation of EDP for back office operations in
Brooklyn. With the proposed 1.0 MW allocation, Republic would
relocate and consolidate its back office and training facilities
at 1 Hanson Place, Brooklyn, and commit to retain 562 jobs at
this location. The bank would also retain at least 1,462 jobs
city-wide. Approximately $4.6 million would be invested in the
Brooklyn building. Energy conservation measures include the
installation of thermopane replacement windows and high
efficiency lighting and investigation of gas absorption air
conditioning for the building. The 15 year allocation will save
an estimated $55,000 annually over Con Edison's standard rates.
"On November 24, 1992, the Trustees approved the allocation
of 6.0 MW of EDP to the New York Times in connection with a
proposal to construct a 1.2 million square foot printing and
distribution facility in College Point, Queens and to maintain
-2-
a total of 3,000 newspaper jobs in New York City. Beginning in
May 1993, this power will be used at the New York Times facility
on West 43rd Street. When the College Point plant is opened, the
EDP will be transferred to that site.
"NYCPUS has requested allocation of an additional 4.5 MW to
supply to the College Point plant to the extent its total demand
exceeds the 6.0 MW EDP allocation. The total job commitment
would be increased to 3,200 jobs, including 1,000 production
(printing and distribution) and 2,200 non-production jobs. The
increased allocation would be made from the quantity of
FitzPatrick power reserved for NYCPUS as a downstate MDA
contingent upon withdrawal of the required amount from other
NYCPUS customers. The total 10.5 MW allocation would yield a
ratio of 304 jobs per MW.
"The proposed allocations have been reviewed in accordance
with Part 460 of the Authority's Rules and Regulations
(Procedures for Allocation of Industrial Power and Enforcement of
Contracts (21 NYCRR 460 (1988)). The NYCPUS agreements with
Citibank, Republic, and the New York Times (Exhibits '5-B' -
'5-D') provide for reductions in an allocation in the event that
employment or power usage levels are not maintained at specified
levels. Reports regarding employment and affirmative action
commitments and, for job retention purposes, investment in real
property will be submitted to the Authority as provided by
Section 460.4 of the Authority's Rules and Regulations. The
contracts between NYCPUS and each of its proposed customers
require approval of the Authority's Vice President - Industrial
Economic Development.
RECOMMENDATION
- --------------
"The Vice President - Industrial Economic Development
recommends that the Trustees approve the allocation of
FitzPatrick Industrial Power to Citibank, Republic, and the New
York Times as described herein.
"The Senior Vice President - Power Contracts, the Senior Vice
President and General Counsel, the Executive Vice President -
Marketing and Development, and I concur in the recommendation."
In response to questions from Trustee Miller, Mr. Woods
-------------------------------------------------------
explained the job retention framework established by Chapter 32
- ---------------------------------------------------------------
of the Laws of 1987 as well as the procedures adopted and
- ---------------------------------------------------------
implemented pursuant thereto by the Economic Development Power
- --------------------------------------------------------------
Allocation Board.
- -----------------
-3-
The following resolution, as recommended by the President, was
unanimously adopted:
WHEREAS, the Economic Development Power Allocation Board
has recommended allocations of Economic Development Power to
Citibank, N.A. and Republic New York Corporation; and
WHEREAS, the New York City Public Utility Service has
requested the approval of an allocation of FitzPatrick industrial
power to the New York Times Newspaper Division of the New York
Times Company;
NOW THEREFORE BE IT RESOLVED, That the Authority hereby
approves the allocation of FitzPatrick industrial power to the
companies described in the foregoing report of the President
substantially in accordance with the terms described in such
memorandum; and be it further
RESOLVED, That the resale contracts between the New York
City Public Utility Service and its customers described in the
foregoing report of the President be subject to approval by the
Vice President - Industrial Economic Development; and be it
further
RESOLVED, That the Senior Vice President - Power
Contracts or his designee be, and hereby is, authorized to
execute any and all documents necessary or desirable to
effectuate the above allocations.
-4-
EXHIBIT V
---------
GENERAL TERMS AND CONDITIONS
APPLICABLE TO THE RATES AND CHARGES OF
THE NEW YORK CITY PUBLIC UTILITY SERVICE
----------------------------------------
The following terms and conditions shall apply to electric
service rendered by the New York City Public Utility Service:
1. Definitions
-----------
"City" The City of New York.
"Con Edison" Consolidated Edison Company of New York,
Inc.
"EDPAB" New York State Economic Development Power
Allocation Board.
"NYCPUS" New York City Public Utility Service.
"NYPA" Power Authority of the State of New York
(also known as the New York Power
Authority).
"Lease and
Operating
Agreement" The Lease and Operating Agreement between
the City of New York and Consolidated
Edison Company of New York, Inc.,
governing the delivery of Niagara/St.
Lawrence hydropower, dated July 1, 1985,
and any renewals or amendments thereof.
"FitzPatrick
Delivery
Agreement" The agreement between the City of New
York and Consolidated Edison Company of
New York, Inc., governing the delivery of
FitzPatrick economic development power,
dated October 23, 1987, as amended, and
any renewals or amendments thereof.
"NYCRR" Official Compilation of Codes, Rules and
Regulations of the State of New York.
"City's Consumers" Any retail customer of NYCPUS receiving
electric service pursuant to a NYCPUS
Service Tariff.
"Industrial
Economic
Development
Consumer" A City's Consumer who (1) applies to, and
is approved by, NYCPUS for service; (2)
meets the criteria established herein,
including the Lease and Operating
Agreement or the FitzPatrick Delivery
Agreement, whichever is applicable; and
(3) is approved by EDPAB and NYPA, as may
be required, pursuant to 21 NYCRR Part
370 and Part 460.
"Distribution
Agent" or
"Delivery Agent" Con Edison.
2. Applicable Criteria
-------------------
Electricity service shall be supplied to City's Consumers in
accordance with the following, as such may be amended from time
to time, and to the extent of availability of power and energy
from NYPA and access to necessary transmission and distribution
facilities:
- the applicable service tariffs;
- the City's Application for Electric Service to NYPA,
executed by the City on August 12, 1985, and the
accompanying NYPA Service Tariffs, as amended;
- the Lease and Operating Agreement and FitzPatrick
Delivery Agreement;
- Chapters IX and X of Title 21 of the Official
Compilation of Codes, Rules and Regulations of the State
of New York, 21 NYCRR Parts 370 and 460; and
- any and all other applicable laws, rules, regulations,
tariffs, rulings, orders, directives, and guidelines.
3. Rendition of Service
--------------------
(a) Industrial Economic Development Consumers
-----------------------------------------
Potential Industrial Economic Development Consumers
desiring to receive service from NYCPUS will make an
application for service to NYCPUS in such form and at
such times as prescribed by NYCPUS. Applications will
be processed and approved by NYCPUS in accordance with
the requirements described herein and, to the extent
applicable, 21 NYCRR Part 370 and 460, the applicable
-2-
NYCPUS service tariff, and any regulations or guidelines
adopted by NYCPUS. All allocations of industrial
economic development power shall be subject to approval
by EDPAB and/or NYPA as required by law. Industrial
Economic Development Consumers shall be required to
enter into a power service agreement with NYCPUS and
shall provide such information as may be required, from
time to time, by NYCPUS and its Delivery Agent. Such
City's Consumers shall be required to adhere to any and
all applicable terms and conditions of the City's
Delivery Agent.
(b) Other City's Consumers
----------------------
NYCPUS shall specify the service classifications
eligible to receive power and energy under applicable
tariffs, in accordance with the requirements established
by NYPA. Such City's Consumers shall be required to
adhere to any and all applicable terms and conditions of
the City's Distribution Agent.
4. Load Shapes and Load Factors
----------------------------
(a) Deliveries of power and energy to City's Consumers,
except for Industrial Economic Development Consumers, shall
conform to the load shape of the class of City's Consumers
being served. Such power and energy which does not so
conform may, at the City's option, be reflected as
adjustments in future deliveries or be subject to rejection
by the Distribution Agent.
(b) Industrial Economic Development Consumers which purchase
electricity from both the City and the City's Delivery Agent
shall be supplied by both the City and the Delivery Agent at
the same load factor.
5. Liability
---------
(a) The City and NYCPUS shall not be liable in the event
that the supply of electric service under any of the
foregoing tariffs is interrupted or irregular or defective or
fails from causes beyond their control or through ordinary
negligence of their employees or agents. The City and NYCPUS
shall not be liable for any injury, casualty or damage
resulting in any way from the supply or use of electricity or
from the presence or operation of any structures, equipment,
wires, pipes, appliances or devices on the premises of City's
Consumers or otherwise from any failure of the generation,
transmission, or distribution system, except injuries or
damages resulting from gross negligence on the part of
NYCPUS.
(b) NYCPUS will endeavor to furnish electric service
continuously except:
-3-
(i) for interruptions or reductions due to
uncontrollable forces;
(ii) for temporary interruptions or reductions which,
in the opinion of NYCPUS, or its suppliers and agents,
are required for power system protection or for
providing temporary emergency assistance to
interconnecting systems; and
(iii) for temporary interruptions or reductions, which,
in the opinion of NYCPUS, or its suppliers or agents,
are necessary or desirable for the purpose of
maintenance, repairs, replacements, installation of
equipment, or investigation and inspection. NYCPUS,
except in case of emergency as determined by it, will
give City's Consumers, to the extent practicable,
reasonable advance notice of such temporary
interruptions or reductions and will exercise due
diligence to remove the cause thereof.
6. Distribution and Customer Billing
---------------------------------
(a) Distribution Agent
------------------
All City's Consumers shall be customers of NYCPUS,
not the Distribution Agent, with respect to the power
and energy supplied under the foregoing service tariffs.
The Distribution Agent shall be responsible only for the
local transmission and distribution of power and energy
to City's Consumers, and such metering, billing and/or
collection functions as described herein and in the Lease
and Operating Agreement or the FitzPatrick Delivery
Agreement, whichever is applicable.
(b) Rates and Charges
-----------------
In addition to the rates and charges specified in
the applicable tariffs, City's Consumers shall be
required to pay, or reimburse the City, for any and all
metering costs and any and all charges incurred by
NYCPUS as a direct result of interconnecting City's
Consumers' facilities with those of Delivery Agent and
supplying electricity to said City's Consumer.
(c) Deposits
--------
Thirty days prior to the initiation of service,
Industrial Economic Development Consumers shall be
required to pay NYCPUS a deposit equal to two months
estimated billings, pursuant to 21 NYCRR
-4-
section 451.1. The deposit shall be held by NYCPUS for
a period of two years. If, after a two year period, City's
Consumers are not delinquent in the payment of bills, the
deposit shall be refunded promptly, no later than the next bill
for service after such two year period, without
prejudice to NYCPUS' right to require a future deposit
if deemed necessary. Interest shall be paid on the
amount deposited at a rate prescribed annually by NYPA.
(d) Payment of Bills and Late Payment Charges
-----------------------------------------
(i) On or about the tenth day of each month, Industrial
Economic Development Consumers shall receive an
estimated bill statement for the monthly billing period,
indicating the number of kilowatts and and kilowatt
hours estimated to be supplied by NYCPUS during the
billing period and the rates and costs therefor. For
each subsequent bill, NYCPUS will reconcile the
estimated usage with the actual usage for the prior
billing period and the reconciliation amount shall be
reflected in the estimated bill for the current month.
Upon termination of service, a final reconciliation of
any amounts owed by City's Consumers or to be paid by
NYCPUS shall be made. NYCPUS may also make such
reconciliation or adjustments to its rates and charges
as are authorized hereunder or in the applicable NYCPUS
Service Tariff. Where an Industrial Economic
Development Consumer is a retail customer of both NYCPUS
and its Distribution Agent, it shall receive separate bill
statements with regard to each supplier.
(ii) City's Consumers (other than Industrial Economic
Development Customers) shall be billed each month by the
City, through its Distribution Agent. Bills rendered by
NYCPUS, through its Distribution Agent, shall be payable
to said agent in accordance with all applicable rules
and regulations of the Distribution Agent.
(iii) Payment for bill statements rendered by NYCPUS to
Industrial Economic Development Consumers is due on
presentation, if hand delivered, or three days after the
mailing of the bill and is payable by mail, to any duly
authorized collector thereof, or otherwise as may be
specified in the bill statement. A late payment charge
at the rate of one and one half percent (1-1/2%) per
monthly billing period, or such other rate as is
approved by NYPA, may be applied to the account of any
Industrial Economic Development Consumer which is
delinquent in the payment of its bills to NYCPUS. The
charge will be
-5-
applied to all amounts billed, including arrears, and unpaid
late payment charge amounts applied to previous bills, which
are not received on or before a date specified on the bill.
This includes any additional amounts in cases where NYCPUS
has underbilled, or failed to bill, because the City's
Consumer was receiving service through tampered
equipment. The date so specified shall not be less than
20 days after the date due. The late payment charge
will apply to the amounts found to be owed for each
monthly billing period, including any previous late
payment charges. The late payment charge will not be
applied to the account of any customer who can
demonstrate neither responsibility for the tampering,
nor knowledge that service was received through tampered
equipment.
(e) Discontinuance of Service
-------------------------
(i) NYCPUS may assign to its Distribution Agent the
right to discontinue service or bring any legal action,
as specified in this paragraph, and the Distribution
Agent may take any such action on behalf of NYCPUS,
consistent with the distribution agreement between the
City and said agent. Notwithstanding the foregoing,
NYCPUS reserves the right to discontinue service and/or
to take any other action permitted by law, consistent
with the applicable Lease and Operating Agreement or
FitzPatrick Delivery Agreement with respect to any
City's Consumer who fails to make full and timely
payment of all amounts due, including amounts due for
late payment charges hereunder. In the event that
NYCPUS, or its Distribution Agent, discovers tampering
with equipment or meters, NYCPUS reserves the right to
discontinue service to any City's Consumer and/or bring
any legal action consistent with said Lease and
Operating Agreement or FitzPatrick Delivery Agreement,
to recover damages, including reasonable attorneys fees
and costs, or to take such other action as may be
permitted by law.
(ii) NYCPUS may discontinue service to an Industrial
Economic Development Consumer for failure to pay any and
all amounts due within thirty-five (35) days after
payment was due. Termination will not occur until at
least fifteen (15) days after written notice has been
personally served upon the Industrial Economic
Development Consumer or at least fifteen (15) days after
NYCPUS mails written notice by registered or certified
letter to such customer at the address at which service
is received. If an Industrial Economic Development Consumer
has requested in writing to NYCPUS to have an alternate
-6-
address for billing purposes, written notice
shall be sent both to the alternate address and to the
premises where service is received. Failure to exercise
any of these termination conditions by NYCPUS shall not
constitute a waiver of any rights and powers set forth
herein.
(f) Determination of Demand
-----------------------
Demand shall be determined in accordance with the
applicable provisions of the Delivery Agent's service
tariffs and any contract between NYCPUS and its
customers.
-7-
EXHIBIT VI
----------
EFFECTIVE 4/1/93
NEW YORK CITY PUBLIC UTILITY SERVICE
SERVICE TARIFF NO. 4
Firm Industrial Economic
Development Nuclear Service
I. AVAILABILITY
------------
This rate shall be available to specific industrial
economic development consumers ("Customers") designated
by NYCPUS and NYPA or EDPAB, as required by law. (See
General Terms and Conditions.)
II. CHARACTER OF SERVICE:
---------------------
Alternating current, sixty hertz, voltage as available.
III. MONTHLY RATE:
-------------
A. NON-TIME-OF-DAY SERVICE:
------------------------
To Customers with maximum monthly actual demands of less
than 1500 KW. Customers billed under this rate whose
monthly maximum demands are 1500 KW or greater for two
consecutive months shall thereafter be billed under
Time-of-Day Service.
Power charges are billed on the basis of billing
demands. Transmission and delivery charges are billed
on the basis of actual demands.
1) Demand Charge:
--------------
a) High Tension Service
--------------------
Base Power Charge (Summer and Winter) $8.30 per KW
Purchased Power Adjustment Factor $0.77 per KW
Adjusted Power Charge $9.07 per KW
Base Transmission Charge
(Summer and Winter) $1.61 per KW
Purchased Power Adjustment Factor $0.06 per KW
Adjusted Transmission Charge $1.67 per KW
Plus Wheeling Charges:
Summer
------
1st - 900th KW $16.47 per KW
901st KW and over $14.59 per KW
Winter
------
1st - 900th KW $11.93 per KW
901st KW and over $10.05 per KW
-2-
b) Low Tension Service
-------------------
Base Power Charge (Summer and Winter) $8.97 per KW
Purchased Power Adjustment Factor $0.35 per KW
Adjusted Power Charge $9.32 per KW
Base Transmission Charge
(Summer and Winter) $1.74 per KW
Purchased Power Adjustment Factor ($0.03) per KW
Adjusted Transmission Charge $1.71 per KW
Plus Wheeling Charge:
Summer
------
1st - 900th KW $18.57 per KW
901st KW and over $16.37 per KW
Winter
------
1st - 900th KW $14.03 per KW
901st KW and over $11.82 per KW
2) Energy Charge
-------------
a) High Tension Service 21.55 mills per KWh
Purchased Power Adjustment
Factor 3.98 mills per KWh
Adjusted Energy Charge 25.53 mills per KWh
b) Low Tension Service 23.29 mills per KWh
Purchased Power Adjustment
Factor 2.95 mills per KWh
Adjusted Energy Charge 26.24 mills per KWh
B) TIME-OF-DAY SERVICE:
--------------------
To Customers with maximum monthly actual demands of 1500
KW or greater. Customers billed under this rate
whose monthly maximum demands do not exceed 900 KW for
12 consecutive months shall thereafter be billed under
Non-Time-of-Day Service.
Power charges are billed on the basis of billing
demands. Transmission and delivery charges are billed
on the basis of actual demands.
1) Demand Charge:
--------------
a) High Tension Service
--------------------
Base Power Charge (Summer and Winter) $8.30 per KW
Purchased Power Adjustment Factor $0.77 per KW
Adjusted Power Charge $9.07 per KW
-3-
Base Transmission Charge
(Summer and Winter) $1.61 per KW
Purchased Power Adjustment Factor $0.06 per KW
Adjusted Transmission Charge $1.67 per KW
Plus Wheeling Charges:
Summer Winter
------ ------
Transmission $6.65 per KW $1.09 per KW
(Monday through
Friday
8:00 A.M. to
6:00 P.M.)
Primary Distribution $11.90 per KW $4.88 per KW
(Monday through
Friday
8:00 A.M. to
10:00 P.M.)
Secondary
Distribution No Charge No Charge
(All hours --
All days)
b) Low Tension Service
-------------------
Base Power Charge (Summer and Winter) $8.97 per KW
Purchased Power Adjustment Factor $0.35 per KW
Adjusted Transmission Charge $9.32 per KW
Base Transmission Charge
(Summer and Winter) $1.74 per KW
Purchased Power Adjustment Factor ($0.03) per KW
Adjusted Transmission Charge $1.71 per KW
Plus Wheeling Charges:
Summer Winter
------ ------
Transmission $6.65 per KW $1.09 per KW
(Monday through
Friday
8:00 A.M. to
6:00 P.M.)
Primary Distribution $11.90 per KW $4.88 per KW
(Monday through
Friday
8:00 A.M. to
10:00 P.M.)
Secondary
Distribution $6.82 per KW $2.03 per KW
(All hours --
All days)
2) Energy Charge
-------------
a) High Tension Service 21.55 mills per KWh
Purchased Power
Adjustment Factor 3.98 mills per KWh
Adjusted Energy Charge 25.53 mills per KWh
b) Low Tension Service 23.29 mills per KWh
Purchased Power
Adjustment Factor 2.95 mills per KWh
Adjusted Energy Charge 26.24 mills per KWh
IV. PROVISIONS APPLICABLE TO RATE:
------------------------------
A. Purchased Power Adjustment Factor. The rate under this
---------------------------------
tariff shall be adjusted by any changes in the
delivered cost of purchased power, pursuant to 21 NYCRR
Section 452.4.
-4-
B. Contract Demand. The maximum demand to be supplied by
---------------
NYCPUS as set forth in the Power Service Agreement
between a City's consumer and NYCPUS.
C. Billing Demand. Billing demand shall be the greater
--------------
of: a) actual demand, or b) 75 percent of the
Customer's contract demand.
D. Actual Demand. Actual Demand shall be the Customer's
-------------
maximum 30-minute integrated demand established during
the billing period, not to exceed the Contract Demand.
E. Taxes. The rates and charges under this Rate Schedule
-----
shall be increased by the applicable rate of gross
receipts taxes, sales taxes and such other taxes as
NYCPUS may be required to collect by law.