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Exhibit 10.63
INTERCONNECTION AGREEMENT
BETWEEN
NIAGARA MOHAWK POWER CORPORATION
AND
HUNTLEY POWER LLC
Date: April 14, 1999
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This INTERCONNECTION AGREEMENT (hereinafter referred to as the
"AGREEMENT") is made as of ___________ 1999, between NIAGARA MOHAWK POWER
CORPORATION (hereinafter referred to as "NIAGARA MOHAWK") and HUNTLEY POWER LLC,
(hereinafter referred to as the "PRODUCER").
WHEREAS, PRODUCER'S ability to deliver and sell ELECTRICITY to NIAGARA
MOHAWK and/or other purchasers from the PRODUCTION FACILITY is contingent on the
PRODUCTION FACILITY remaining interconnected to the TRANSMISSION SYSTEM through
the INTERCONNECTION FACILITY.
NOW THEREFORE, in consideration of the mutual obligations and
undertakings set forth herein, the parties to this AGREEMENT covenant and agree
as follows:
ARTICLE I
DEFINITIONS
The terms listed below shall have the following meanings when used in this
INTERCONNECTION AGREEMENT.
1.1 This AGREEMENT shall become effective as of the date first above written
(the "EFFECTIVE DATE").
1.2 "INTERCONNECTION POINT" is the point at which the PRODUCTION FACILITY is
connected to the INTERCONNECTION FACILITY as indicated on a one-line
diagram included as part of Exhibit A.
1.3 "DELIVERY POINT" is the point at which the INTERCONNECTION FACILITY is
connected to the TRANSMISSION SYSTEM as indicated on a one-line diagram
included as part of Exhibit A.
1.4 "ELECTRICITY" shall mean electric capacity and/or energy produced by the
PRODUCTION FACILITY.
1.5 "FERC" shall mean the Federal Energy Regulatory Commission or successor
organization.
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1.6 "GOOD UTILITY PRACTICE" shall mean any of the practices, methods and acts
engaged in or approved by a significant portion of the electric utility
industry during the relevant time period, or any of the practices,
methods and acts which, in the exercise of reasonable judgment in light
of the facts known at the time the decision was made, could have been
expected to accomplish the desired result at the lowest reasonable cost
consistent with good business practices, reliability, safety and
expedition. Good Utility Practice is not intended to be limited to the
optimum practice, method, or act, to the exclusion of all others, but
rather to be acceptable practices, methods, or acts generally accepted in
the region and consistently adhered to by NIAGARA MOHAWK. GOOD UTILITY
PRACTICE shall include, but not be limited to North American Electric
Reliability Council ("NERC") Criteria & Guidelines, Northeast Power
Coordinating Council ("NPCC") Criteria & Guidelines, New York State
Reliability Council ("NYSRC") if any, and New York Power Pool ("NYPP")
criteria, rules and standards, as they may be amended from time to time
including the rules, guidelines and criteria of any successor
organization to the foregoing entities.
1.7 "HAZARDOUS SUBSTANCE(S)" shall mean those substances, materials, products
or wastes which are classified as hazardous or toxic under any applicable
federal, state or local law, or any regulations promulgated thereunder,
effective the date of execution of this AGREEMENT, and the presence of
which requires redemption, removal or cleanup under this AGREEMENT.
1.8 "INTERCONNECTION FACILITY" shall include all those facilities and NIAGARA
MOHAWK PROPERTIES on which such facilities are located between the
INTERCONNECTION POINT and the DELIVERY POINT, necessary to effect the
transfer of ELECTRICITY, produced at the PRODUCTION FACILITY into NIAGARA
MOHAWK'S TRANSMISSION SYSTEM, including those facilities identified in
more particularity in Exhibit A to this AGREEMENT.
1.9 "NIAGARA MOHAWK PROPERTIES" shall mean those parcels of real property
and/or easements that NIAGARA MOHAWK uses for its transmission facilities
upon which portions of the INTERCONNECTION FACILITY have been constructed
and which property PRODUCER exclusively uses under this AGREEMENT, which
parcels of real property and/or easements and facilities are described in
more particularity in Exhibit A hereto.
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1.10 "PRODUCTION FACILITY" shall mean PRODUCER'S Huntley generating facility
with a maximum output of 760 MW located in the Town of Tonawanda, County
of Erie, New York.
1.11 "TRANSMISSION SYSTEM" shall mean NIAGARA MOHAWK'S TRANSMISSION SYSTEM,
including any modifications subsequent to the date of this AGREEMENT.
1.12 "ELECTRIC SYSTEM BULLETIN No. 756" shall mean NIAGARA MOHAWK'S Electric
System Bulletin 756, dated December, 1997, and all subsequent revisions,
as it may be amended from time to time.
1.13 "INDEPENDENT SYSTEM OPERATOR" ("ISO") shall mean an organization formed
in accordance with FERC order (s) to administer the operation of the
transmission system, provide equal access to the transmission system of
New York State, and to maintain system reliability.
1.14 "ISLANDING" shall mean the separation of PRODUCER'S generation from
NIAGARA MOHAWK'S electric system while continuing to serve NIAGARA
MOHAWK'S isolated load.
1.15 "INTERCONNECTION STUDIES" shall mean the necessary studies, identified in
Paragraph 8.2.2, in the event it becomes necessary to modify the
INTERCONNECTION FACILITY or to construct new or additional facilities,
NIAGARA MOHAWK shall perform those studies that, in the judgement of
NIAGARA MOHAWK, are necessary to determine (a) an appropriate
INTERCONNECTION POINT (b) the equipment and facilities necessary and
desirable for the construction and operation of new or additional or
modified facilities (c) the interconnection voltage (d) the estimated
costs of facilities and/or the costs for NIAGARA MOHAWK'S design, review,
assistance and inspection of facilities to be designed and constructed by
PRODUCER (e) the costs of any new reinforcements to or additions of new
facilities to NIAGARA MOHAWK'S TRANSMISSION SYSTEM required or
recommended to be made in order for NIAGARA MOHAWK to interconnect with
PRODUCER'S PRODUCTION FACILITY.
1.16 "SERVICE POINT' is the point at which the PRODUCTION FACILITY is
connected to the TRANSMISSION SYSTEM for retail delivery of ELEC-
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TRICITY by NIAGARA MOHAWK to the PRODUCTION FACILITY as indicated on a one-line
diagram included as part of Exhibit A.
ARTICLE II
AGREEMENT TO INTERCONNECT
DESCRIPTION OF INTERCONNECTION FACILITY
2.1 NIAGARA MOHAWK and PRODUCER agree to remain interconnected in accordance
with the terms agreed to herein.
2.2 NIAGARA MOHAWK and PRODUCER shall be interconnected by means of the
INTERCONNECTION FACILITY, which NIAGARA MOHAWK shall operate, own and
maintain, at the PRODUCER's expense.
2.3 The PRODUCTION FAC1LITY shall include all facilities and equipment on the
PRODUCER's side of the INTERCONNECTION POINT as indicated on Exhibit A.
PRODUCER agrees that the installation of the electrical equipment and the
operation of the PRODUCTION FACILITY must meet or exceed the requirements
of NIAGARA MOHAWK'S ELECTRIC SYSTEM BULLETIN No. 756. Notwithstanding the
foregoing, NIAGARA MOHAWK acknowledges and agrees to the following
limitations for the existing PRODUCTION FACILITY as it pertains to
NIAGARA MOHAWK'S ELECTRIC SYSTEM BULLETIN No. 756:
2.3.1 If at the date of this AGREEMENT the PRODUCTION FACILITY does not
conform to NIAGARA MOHAWK'S ELECTRIC SYSTEM BULLETIN No. 756, but
was built in accordance with GOOD UTILITY PRACTICE and does not
present any adverse impact on NIAGARA MOHAWK'S TRANSMISSION SYSTEM
as determined by NIAGARA MOHAWK in its reasonable discretion, then
it is not the intent of this AGREEMENT to cause the PRODUCER'S
PRODUCTION FACILITY to immediately upgrade to full compliance with
ELECTRIC SYSTEM BULLETIN No. 756. Any upgrades required to protect
NIAGARA MOHAWK'S TRANSMISSION SYSTEM from adverse impacts will be
listed in Exhibit B and must be completed within ninety (90) days
of signing this AGREEMENT unless otherwise mutually agreed upon by
both parties.
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2.3.2 The parties agree that it is the intent of this AGREEMENT to
require the PRODUCER'S PRODUCTION FACILITY to conform to ELECTRIC
SYSTEM BULLETIN No. 756 and therefore, agree that as additions,
modifications and replacements to PRODUCER'S PRODUCTION FACILITY
are implemented, the additions, modifications and replacements
will conform to ELECTRIC SYSTEM BULLETIN No. 756. If the PRODUCER
upgrades the system protection or upgrades technology employed at
the PRODUCTION FACILITY (for example, but not limited to,
repowering), if in NIAGARA MOHAWK'S reasonable discretion, it is
necessary for safety, such portion of the PRODUCER'S PRODUCTION
FACILITY, as is necessary, will be brought into full compliance
with the requirements of ELECTRIC SYSTEM BULLETIN No. 756, at that
time.
2.3.3 If PRODUCER relies on NIAGARA MOHAWK'S system protection equipment
and practices for protection of PRODUCTION FACILITY equipment,
PRODUCER agrees to indemnify, defend, and save NIAGARA MOHAWK, its
agents and employees, harmless from, and against any loss, damage,
liability (civil or criminal), cost, suit, charge, expense
(including reasonable attorneys fees) or cause of action, arising
from any damage to the PRODUCTION FACILITY resulting from such
reliance, except if such loss, damage, liability, cost, suit,
charge, expense or cause of action is the result of NIAGARA
MOHAWK's willful misconduct or gross negligence.
2.3.4 NIAGARA MOHAWK reserves the right to operate the first means of
disconnect on the PRODUCER'S side of the INTERCONNECTION POINT in
accordance with GOOD UTILITY PRACTICE. PRODUCER reserves the right
to operate the circuit breakers on NIAGARA MOHAWK'S side of the
INTERCONNECTION POINT for synchronization and disconnection of
Generators 63, 64, 65 and 66 in accordance with GOOD UTILITY
PRACTICE.
2.3.5 Upon implementation of an ISO and at NIAGARA MOHAWK'S sole
discretion, the requirements, rules and regulations of the ISO may
govern requirements of ELECTRIC SYSTEM BULLETIN No. 756.
2.4 PRODUCER recognizes that neither this AGREEMENT nor the PRODUCER'S
financial support of the INTERCONNECTION FACILITIES
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confers upon it any right to transmit electricity over NIAGARA MOHAWK'S
TRANSMISSION SYSTEM other than through the INTERCONNECTION FACILITIES.
2.5 NIAGARA MOHAWK shall use due diligence, in accordance with GOOD UTILITY
PRACTICE, to operate and maintain the INTERCONNECTION FACILITIES and to
have them available for the transmission of electricity. NIAGARA MOHAWK
shall consult with PRODUCER regarding the timing of scheduled maintenance
of the INTERCONNECTION FACILITY, which might reasonably be expected to
affect PRODUCER'S PRODUCTION FACILITY. NIAGARA MOHAWK shall, to the
extent practicable, schedule any maintenance to coincide with PRODUCER'S
scheduled outage. NIAGARA MOHAWK does not, however, guarantee or warrant
uninterrupted availability of the INTERCONNECTION FACILITIES or
TRANSMISSION SYSTEM. Curtailment of deliveries over the INTERCONNECTION
FACILITIES or TRANSMISSION SYSTEM shall be governed by the transmission
agreement or agreements between NIAGARA MOHAWK and the PRODUCER.
2.6 PRODUCER hereby grants NIAGARA MOHAWK all necessary rights of way,
easements, and licenses as NIAGARA MOHAWK may reasonably require to
install, operate, maintain, replace and remove NIAGARA MOHAWK'S
facilities, including adequate and continuing rights of access to
PRODUCER'S property for any purpose reasonably related to this AGREEMENT.
PRODUCER hereby agrees to execute such grants, deeds, licenses,
instruments or other documents as NIAGARA MOHAWK may require to enable it
to record such rights of way, easements and licenses.
2.7 NIAGARA MOHAWK hereby grants PRODUCER all necessary rights of way,
easements, and licenses as PRODUCER may reasonably require to install,
operate, maintain, replace and remove PRODUCER'S facilities, including
adequate and continuing rights of access to NIAGARA MOHAWK'S property for
any purpose reasonably related to this AGREEMENT. NIAGARA MOHAWK hereby
agrees to execute such grants, deeds, licenses, instruments or other
documents as PRODUCER may require to enable it to record such rights of
way, easements and licenses.
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ARTICLE III
REPRESENTAT1ONS AND WARRANTIES OF PARTIES
3.1 PRODUCER is a limited liability company duly organized and validly
existing under the laws of the State of Delaware. PRODUCER is qualified
to do business under the laws of the State of New York, is in good
standing under the laws of the State of New York, has the power and
authority to own its properties, to carry on its business as. now being
conducted, and to enter into this AGREEMENT and the transactions
contemplated herein and perform and carry out all covenants and
obligations on its part to be performed under and pursuant to this
AGREEMENT, and is duly authorized to execute and deliver "this AGREEMENT"
and consummate the transactions contemplated herein.
3.2 PRODUCER is not prohibited from entering into this AGREEMENT and
discharging and performing all covenants and obligations on its part to
be performed under and pursuant to this AGREEMENT. The execution and
delivery of this AGREEMENT, the consummation of the transactions
contemplated herein and the fulfillment of and compliance with the
provisions of this AGREEMENT will not conflict with or constitute a
breach of or a default under any of the terms, conditions or provisions
of any law, rule or regulation, any order, judgment, writ, injunction,
decree, determination, award or other instrument or legal requirement of
any court or other agency of government, the agreement of limited
partnership of PRODUCER or any contractual limitation, corporate
restriction or outstanding trust indenture, deed of trust, mortgage, loan
agreement, lease, other evidence of indebtedness or any other agreement
or instrument to which PRODUCER is a party or by which it or any of its
property is bound and will not result in a breach of or a default under
any of the foregoing. This AGREEMENT is the legal, valid and binding
obligation of PRODUCER enforceable in accordance with its terms, except
as limited by applicable reorganization, insolvency, liquidation,
readjustment of debt, moratorium, or other similar laws affecting the
enforcement of rights of creditors generally as such laws may be applied
in the event of a reorganization, insolvency, liquidation, readjustment
of debt or other similar proceeding of or moratorium applicable to
PRODUCER and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law.)
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3.3 NIAGARA MOHAWK is a corporation duly organized, validly existing and
qualified to do business under the laws of the State of New York, is in
good standing under its certificate of incorporation and the laws of the
State of New York, has the corporate authority to own its properties, to
carry on its business as now being conducted, and to enter into this
AGREEMENT and the transactions contemplated herein and perform and carry
out all covenants and obligations on its part to be performed under and
pursuant to this AGREEMENT, and is duly authorized to execute and deliver
this AGREEMENT and consummate the transactions contemplated herein.
3.4 NIAGARA MOHAWK is not prohibited from entering into this AGREEMENT and
discharging and performing all covenants and obligations on its part to
be performed under and pursuant to this AGREEMENT pending review and
acceptance of the terms of this AGREEMENT by the FERC or successor
organization. The execution and delivery of this AGREEMENT and upon its
acceptance for filing by the FERC, the consummation of the transactions
contemplated herein and the fulfillment of and compliance with the
provisions of this AGREEMENT will not conflict with or constitute a
breach of or a default under any of the terms, conditions or provisions
of any law, rule or regulation, any order, judgment, writ, injunction,
decree, determination, award or other instrument or legal requirement of
any court or other agency of government, the certificate of incorporation
or bylaws of NIAGARA MOHAWK or any contractual limitation, corporate
restriction or outstanding trust indenture, deed of trust, mortgage, loan
agreement, lease, other evidence of indebtedness or any other agreement
or instrument to which NIAGARA MOHAWK is a party or by which it or any of
its property is bound and will not result in a breach of or a default
under any of the foregoing. This AGREEMENT is the legal, valid and
binding obligation of NIAGARA MOHAWK upon its acceptance for filing by
the FERC becomes enforceable in accordance with its terms, except as
limited by later order of the FERC, applicable reorganization,
insolvency, liquidation, readjustment of debt, moratorium, or other
similar laws affecting the enforcement of rights of creditors generally
as such laws may be applied in the event of a reorganization, insolvency,
liquidation, readjustment of debt or other similar proceeding of or
moratorium applicable to PRODUCER and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
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ARTICLE IV
MODIFICATION TO THE INTERCONNECTION FACILITY
4.1 NIAGARA MOHAWK shall retain the discretion to determine whether, when,
and in what manner replacements or upgrades to the INTERCONNECT1ON
FACILITIES shall be installed. NIAGARA MOHAWK shall exercise that
discretion in accordance with GOOD UTILITY PRACTICE. NIAGARA MOHAWK shall
use reasonable efforts to schedule and coordinate with PRODUCER to
minimize disruption of PRODUCERS planned operations of its PRODUCTION
FACILITY. Any such replacements or upgrades that are installed shall be
deemed to be INTERCONNECTION FACILITIES for purposes of this AGREEMENT.
4.2 NIAGARA MOHAWK shall notify the PRODUCER if it determines that a
replacement or upgrade to any portion of the INTERCONNECTION FACILITIES
is necessary or advisable. The actual cost of designing, permitting,
installing and operating the replacement or upgrade shall be included in
the charges calculated in accordance with Article VIII. PRODUCER shall
also be responsible for all costs related to the PRODUCTION FACILITY, if
any, caused by said replacement and/or upgrade.
4.3 If PRODUCER plans any additions, modifications or replacements to the
PRODUCTION FACILITY, PRODUCER shall use reasonable efforts to give
NIAGARA MOHAWK not less than one (1) year prior written notice thereof
accompanied by appropriate plans, specifications, information and
operating instructions impacting NIAGARA MOHAWK'S electric operations, of
any such addition, modification or replacement. All such additions,
modifications or replacements shall meet NIAGARA MOHAWK'S ELECTRIC SYSTEM
BULLETIN No. 756, NERC, NPCC, NYPP, NYSRC, or its respective successors,
the standards of GOOD UTILITY PRACTICE and shall be subject to the
approval of NIAGARA MOHAWK, which approval shall not unreasonably be
withheld.
4.4 PRODUCER shall be responsible for the costs of any modifications to the
INTERCONNECTION FACILITIES that arise from changes to the PRODUCTION
FACILITY in accordance with this AGREEMENT.
4.5 If, during the term of this AGREEMENT, NIAGARA MOHAWK determines that it
is necessary to relocate, rearrange, abandon, or retire its TRANSMIS-
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SION SYSTEM, so that a change is required to a section of the
INTERCONNECTION FACILITY, NIAGARA MOHAWK shall put forth its best efforts
to give the PRODUCER no less than one (1) year's written notice of such
relocation or rearrangement and shall use all reasonable efforts to defer
such relocation or rearrangement until the INTERCONNECTION FACILITY can
be reconfigured so that service may continue without interruption.
4.6 If NIAGARA MOHAWK is required or ordered by governmental authority to
relocate, rearrange, abandon, or retire its TRANSMISSION SYSTEM requiring
modification to the INTERCONNECTION FACILITY, NIAGARA MOHAWK shall put
forth its best efforts to promptly so notify PRODUCER.
4.7 If relocation, rearrangement, abandonment, or retirement is required (as
referred to in paragraphs 4.5 and 4.6), NIAGARA MOHAWK shall perform or
have performed, at PRODUCER'S expense, the studies necessary to identify
modifications to the INTERCONNECTION FACILITY and shall inform the
PRODUCER of its estimate of the costs of the construction of the modified
INTERCONNECTION FACILITY, and PRODUCER shall at its option either (i)
reimburse NIAGARA MOHAWK for the actual costs of the construction of such
modification in accordance with Article VIII of this AGREEMENT; (ii)
construct, at its own expense, a new INTERCONNECTION FACILITY subject to
the terms of this AGREEMENT; or (iii) terminate this AGREEMENT, upon no
less than thirty (30) days written notice to NIAGARA MOHAWK.
4.8 If the relocation, rearrangement, abandonment, or retirement is ordered
or required by governmental authority, NIAGARA MOHAWK shall use best
efforts to obtain compensation on behalf of PRODUCER from such
governmental authority for its mutually agreed upon share of the costs of
such relocation or rearrangement, but in no event shall NIAGARA MOHAWK be
responsible on its own account for reimbursing PRODUCER for any costs
associated with such relocation or rearrangement.
4.9 If the PRODUCER elects to construct, at its own expense, a new section of
the INTERCONNECTION FACILITY subject to the terms of this AGREEMENT, then
the PRODUCER shall assign all rights, tide and interest in such new
section of the INTERCONNECTION FACILITY to NIAGARA MOHAWK upon completion
of construction and shall execute all necessary documents to effectuate
transfer of ownership thereof to NIAGARA MO-
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HAWK. PRODUCER shall obtain any necessary permits, authorizations and
rights-of-way for the new section of the INTERCONNECTION FACILITY, in
accordance with this AGREEMENT, the costs thereof to be borne by the
PRODUCER If the PRODUCER elects to construct a new section of the
INTERCONNECTION FACILITY, NIAGARA MOHAWK shall own, operate and maintain,
at PRODUCER's expense, any such new section as part of the
INTERCONNECTION FACILITY, and PRODUCER shall reimburse NIAGARA MOHAWK for
all costs of operating and maintenance expenses for any new section of
the INTERCONNECTION FACILITY in accordance with Article VIII.
4.10 PRODUCER acknowledges and agrees that NIAGARA MOHAWK reserves the rights
and ability to deliver ELECTRICITY to all customers. If, during the term
of this AGREEMENT, NIAGARA MOHAWK determines that it is necessary to
relocate or rearrange the INTERCONNECTION POINT, in order to permit
NIAGARA MOHAWK access or to deliver electricity to its customers or new
customers, so that a change is required to a section of the
INTERCONNECTION FACILITY, NIAGARA MOHAWK shall put forth its best efforts
to give the PRODUCER no less than one (1) year's written notice of such
relocation or rearrangement and shall use all reasonable efforts to defer
such relocation or rearrangement until the INTERCONNECTION FACILITY can
be reconfigured so that service to PRODUCER may continue without
interruption. Such relocation or rearrangement as referenced in this
paragraph 4.10 shall be at NIAGARA MOHAWK's or the customer(s)' expense.
4.11 If PRODUCER plans any unit retirements to the PRODUCTION FACILITY,
PRODUCER shall put forth its best efforts to give NIAGARA MOHAWK
reasonable notice. NIAGARA MOHAWK and PRODUCER shall amend this AGREEMENT
to reflect such unit retirements including but not limited to adjustments
to Article VIII of this AGREEMENT.
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ARTICLE V
POWER DELIVERIES
5.1 METERING
5.1.1 NIAGARA MOHAWK shall, at PRODUCER'S expense, provide, own, and
maintain compatible metering equipment. PRODUCER shall provide
suitable space within its facilities for installation of the
metering equipment
5.1.2 PRODUCER shall be responsible for providing all necessary
communication equipment and transmission mediums, such as
telephone lines and any necessary protection for such
communication equipment and shall furthermore be responsible for
all communication required by NIAGARA MOHAWK or NYPP or its
successor.
5.1.3 All metering equipment installed pursuant to this AGREEMENT and
associated with the PRODUCTION FACILITY may be routinely tested by
NIAGARA MOHAWK, in accordance with applicable NIAGARA MOHAWK,
NYPP, NERC and GOOD UTILITY PRACTICE. PRODUCER may be present at
such testing.
5.1.4 If, at any time, any metering equipment is found to be inaccurate
by more than the limits defined in 16 NYCRR Part 92 as may be
amended from time to time, NIAGARA MOHAWK shall cause such
metering equipment to be made accurate or replaced at PRODUCER'S
expense. Meter readings for the period of inaccuracy shall be
adjusted so far as the same can be reasonably ascertained;
provided, however, no adjustment prior to the beginning of the
preceding month shall be made except by agreement of the parties.
Each party shall comply with any reasonable request of the other
concerning the sealing of meters, the presence of a representative
of the other party when the seals are broken and the tests are
made, and other matters affecting the accuracy of the measurement
of ELECTRICITY delivered from the PRODUCTION FACILITY. If either
party believes that there has been a meter failure or stoppage, it
shall immediately notify the other.
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5.1.5 PRODUCER shall be responsible for purchasing and installing
software, hardware and/or other technology that may be required to
read output billing meters.
5.1.6 Within sixty (60) days of the closing of the sale of the
PRODUCTION FACILITY by NIAGARA MOHAWK, NIAGARA MOHAWK will take
all necessary actions to bring the PRODUCTION FACILITY and the
INTERCONNECTION FACILITY into full compliance with the
requirements and specifications set forth in Sections 5.1.1
through 5.1.5. Upon written certification by NIAGARA MOHAWK that
the PRODUCTION FACILITY and INTERCONNECTION FACILITY are in
compliance with Sections 5.1.1 through 5.1.5 then all subsequent
compliance shall be PRODUCER'S responsibility.
5.2 LOSSES
5.2.1 If the metering equipment and the DELIVERY POINT are not at the
same location, the metering equipment shall record delivery of
electricity in a manner that accounts for losses occurring between
the metering point and the DELIVERY POINT. If the metering
equipment does not have the capability of accounting for said
losses, then either party may install metering equipment to
account for said losses or the meter readings shall be multiplied
by a loss factor to be mutually agreed to between NIAGARA MOHAWK
and PRODUCER on the EFFECTIVE DATE to account for said losses
between the metering point and the DELIVERY POINT. The metering
point, DELIVERY POINT, associated equipment and distance between
the metering point and the DELIVERY POINT shall be specified in
Exhibit A.
5.3 REACTIVE POWER SUPPORT
5.3.1 PRODUCER is required to provide reactive capability to regulate
and maintain system voltage at the DELIVERY POINT in conformance
with ELECTRIC SYSTEM BULLETIN No. 756. NIAGARA MOHAWK or NYPP or
its successor shall establish a scheduled range of voltages or
reactive power deliveries to be maintained by the generator.
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5.4 OPERATING FREQUENCY
5.4.1 PRODUCER is responsible for the proper coordination of any applied
under/over frequency generator tripping as per 756, Appendix C, Section
II, A, 2.7. If the PRODUCTION FACILITY elects to employ under frequency
generator tripping protection, then the under frequency relay set point
MUST be on or below the under frequency curve referred to in 756,
Appendix C, Section IV, A., 3.0, Exhibit C-1. Similarly, if the
PRODUCTION FACILITY elects to employ over frequency generator tripping
protection, then the over frequency relay set point MUST be on or above
the over frequency curve referred to in 756, Appendix C, Section IV, A.,
3.0, Exhibit C-1. If the PRODUCTION FACILITY decides that, after
consultation with NIAGARA MOHAWK, it cannot meet the under frequency
-tripping set point limitation referred to in Exhibit C-1, then PRODUCER
shall agree to fund the cost incurred by NIAGARA MOHAWK to install and
maintain compensatory load shedding equipment required by the NYSRC. If
the PRODUCER decides that it cannot meet the over frequency tripping set
point limitation referred to in Exhibit C-1, PRODUCER shall consult with
NIAGARA MOHAWK and NIAGARA MOHAWK will notify PRODUCER of any
consequences associated with that decision.
5.5 OPERATING VOLTAGE
5.5.1 PRODUCER is expected to adhere to the operating voltage
performance referred to in 756 Appendix C, Section II, B, 2.2 and
756 Appendix C, Section IV, B. PRODUCER is responsible for the
proper coordination of any applied under/over voltage generator
tripping as per 756, Appendix C, Section II, A, 2.7. If the
PRODUCER elects to employ over voltage or under voltage
protection, then the over voltage and under voltage relay settings
shall be reviewed and approved by NIAGARA MOHAWK.
5.6 ISLANDING
5.6.1 With reference to 756, Appendix C, Section II, A, 2.4, NIAGARA
MOHAWK reserves the right to require, allow or prevent the
ISLANDING of PRODUCER'S generation depending upon the
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prevailing NIAGARA MOHAWK electrical system operational needs at
the time to the extent that PRODUCER'S PRODUCTION FACILITY was
capable of same just prior to the date of this AGREEMENT.
5.7 PROTECTIVE DEVICE
5.7.1 PRODUCER shall cooperate with NIAGARA MOHAWK on protective device
settings and verification in accordance with 756, Appendix B,
Section II, C and 756, Appendix C, Section V, B.
ARTICLE VI
INSURANCE PROVISIONS
6.1 PRODUCER and NIAGARA MOHAWK shall obtain the insurance provided for in
the Site Agreement between the two dated ________.
ARTICLE VII
COMPLIANCE WITH LAWS
7.1 Each Party agrees to comply in all material respects with all applicable
federal, state and local laws, ordinances, rules, regulations, permits,
licenses, approvals, certificates, and requirements thereunder in
connection with all its activities performed pursuant to this AGREEMENT,
including, but not limited to all design, environmental, regulatory,
engineering, construction, and property acquisition activities.
7.2 Each Party agrees to indemnify, defend, and save the other Party its
agents and employees, harmless from, and against any loss, damage,
liability (civil or criminal), cost, suit, charge, expense (including
reasonable attorneys fees) or cause of action, arising from violations by
the indemnifying Party of said laws, ordinances, rules, regulations,
permits, licenses, approvals, certificates and requirements thereunder.
Each Party agrees to bear fully all civil and criminal penalties that may
arise from its activities or from its violations of or its failure to
comply with the aforementioned laws and requirements, whether such
penalties are assessed against PRODUCER or NIAGARA MOHAWK.
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7.3 If either Party observes that any requirement specified in this AGREEMENT
is at variance with any governing laws, ordinances, rules, regulations,
permits, licenses, approvals, certificates and requirements thereunder,
each Party shall promptly notify the other Party in writing before
incurring any further liability, expense or obligation. NIAGARA MOHAWK
and PRODUCER shall in good faith attempt to reform this AGREEMENT to
comply with the aforementioned laws, ordinances, rules, regulations,
permits, approvals, or certificates. If NIAGARA MOHAWK and PRODUCER, are
unable to do so, either party may terminate this AGREEMENT.
ARTICLE VIII
COST PAYMENTS
8.1 NIAGARA MOHAWK shall invoice PRODUCER at the start of each calendar
quarter in an amount equal to NIAGARA MOHAWK'S estimate for that
quarter's costs and expenses for which NIAGARA MOHAWK is to be reimbursed
under this AGREEMENT (excluding the charges referenced in paragraph
8.2.6, 8.2.6.1 and 8.2.6.2), adjusted for the previous quarter's
differential, if any, between NIAGARA MOHAWK'S estimated and actual
costs.
8.2 PRODUCER shall reimburse NIAGARA MOHAWK for all of the following costs
incurred by NIAGARA MOHAWK with respect to the INTERCONNECTION FACILITY
and Interconnection upgrade facilities:
8.2.1 All reasonable NIAGARA MOHAWK costs and expenses associated with
the acquisition, ownership, operation, administration, inspection,
design review, engineering, surveying, project management and
coordination, testing of electrical equipment and installation of
EMS-RTU and metering equipment, construction, financing,
maintenance, environmental and regulatory permitting and licensing
of, taxes and transfer of title and interest to, the
INTERCONNECTION FACILITY, and any modified facility.
8.2.2 All reasonable NIAGARA MOHAWK costs and expenses in connection
with INTERCONNECTION STUDIES, if such INTERCONNECTION STUDIES are
requested by PRODUCER, related to this INTERCONNECTION FACILITY.
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8.2.3 All reasonable NIAGARA MOHAWK costs and expenses of acquiring,
owning, designing, engineering, constructing, financing, taxes,
environmental permitting, and licensing, or any new or modified
facilities.
8.2.4 [Reserved.]
8.2.5 Any capital costs associated with modifications performed in
accordance with this AGREEMENT.
8.2.6 The PRODUCER shall reimburse NIAGARA MOHAWK for any and all
reasonable costs or expenses that are incurred by NIAGARA MOHAWK
pursuant to this AGREEMENT for the operation, maintenance and
repair of the INTERCONNECTION FACILITY.
8.2.6.1 If requested by NIAGARA MOHAWK, such reimbursement shall
be made sufficiently in advance of NIAGARA MOHAWK
incurring the aforementioned costs or expense based on
NIAGARA MOHAWK's good faith estimate of such costs or
expense that may be paid promptly by NIAGARA MOHAWK when
due. Upon completion of the work contemplated hereunder,
NIAGARA MOHAWK will present PRODUCER with a summary of the
actual costs and expense incurred, together with
supporting documentation. In the event PRODUCER's advance
reimbursement hereunder exceeds NIAGARA MOHAWK's actual
costs, NIAGARA MOHAWK will refund PRODUCER's excess
payment to PRODUCER within ten (10) days of the date the
actual costs and expense summary was presented to
PRODUCER. In the event PRODUCER's advance reimbursement
hereunder is less than NIAGARA MOHAWK's actual costs,
PRODUCER will remit payment for the outstanding balance to
NIAGARA MOHAWK within ten (10) days of the date the actual
costs and expenses summary was presented to PRODUCER.
8.2.6.2 Operation, maintenance and repair costs and expenses shall
include all reasonable costs and expenses associated with
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operation, inspection, engineering and legal services,
contract administration, rights-of-way acquisition,
administrative and general, working capital (including
material adders, overhead charges, and transportation
charges), and allowed earnings and/or rates of return
approved by a regulatory body having jurisdiction,
incurred with respect to the INTERCONNECTION FACILITY,
including but not limited to, the following:
(i) Power Delivery
Inspections: Monthly substation inspections by a traveling
operator to inspect the INTERCONNECTION FACILITY for
physical indications of potential problems. This
inspection will not be charged if NIAGARA MOHAWK has
employees working at the substation in the course of a
month able to conduct such inspection in the normal course
of their duties.
Switching: Periodic switching to remove or install
electrical equipment in service for scheduled work
activities or during emergency conditions for equipment
restoration activities.
Disconnects: Maintenance activities associated with
disconnects based on work request generated by a traveling
operator or as part of equipment maintenance requirements.
Breakers: Preventive and corrective maintenance conducted
on high voltage circuit breakers based on field
observations, problems or per established maintenance
procedures intervals. -Relay PM: Preventive and corrective
maintenance conducted on relay related problems or per
established relay maintenance procedure intervals. -
8.2.6.3 Notwithstanding the foregoing, operation and maintenance
on NIAGARA MOHAWK'S revenue metering for the PRODUCTION
FACILITY'S station service shall be in accordance with the
rates, term and conditions established in NIAGARA MOHAWK'S
Retail Tariff, Public Service Commission No. 207 -
Electricity ("the Retail Tariff"), as the same may be
modified by the New York State Public Service Commission.
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8.2.6.4 PRODUCER, upon thirty (30) days written notice to NIAGARA
MOHAWK, shall have the right to audit NIAGARA MOHAWK'S O&M
records for the INTERCONNECTION FACILITY on an annual
basis.
8.2.7 Any and all federal, state or local taxes levied or assessed on
NIAGARA MOHAWK, with respect to the ownership of the
INTERCONNECTION FACILITY (other than income or excess profits
tax); provided, however, that NIAGARA MOHAWK and PRODUCER shall
agree upon an equitable allocation of any such taxes between the
parties. If any form of tax, other than income or excess profits
tax, under any present or future federal, state or other law
different from or in addition to the taxes for which participation
in or payment by PRODUCER is provided herein or elsewhere in this
AGREEMENT, should be levied or assessed against or incurred by
NIAGARA MOHAWK with respect to any property or property right
arising from NIAGARA MOHAWK'S ownership of the INTERCONNECTION
FACILITY which different or additional tax would not be required
to be paid by NIAGARA MOHAWK in the absence of this AGREEMENT and,
with respect to such different or additional tax, no obligation of
PRODUCER to participate or pay would have attached under the
provisions of this AGREEMENT elsewhere than in this paragraph,
then in such event PRODUCER and NIAGARA MOHAWK shall agree upon an
equitable allocation of such different or additional tax.
8.2.8 NIAGARA MOHAWK agrees to cooperate with PRODUCER in attempting to
minimize costs under this Article, provided PRODUCER reimburses
NIAGARA MOHAWK for all costs incurred by NIAGARA MOHAWK in
connection with such cooperation, including reasonable attorneys
fees, and provided further that PRODUCER shall indemnify, defend,
and save harmless NIAGARA MOHAWK its agents and employees, against
any and all penalties, judgments, fines civil or criminal, or
other costs that may be imposed by any governmental authority as a
result of actions undertaken at the specific request or
concurrence of the PRODUCER.
8.3 PRODUCER agrees to pay all invoices within thirty (30) days from date of
the invoice. If any invoice remains unpaid thirty (30) days from the
invoice
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date, NIAGARA MOHAWK shall apply to the unpaid balance, and PRODUCER
shall pay, a finance charge at the rate of interest equal to the Prime
Rate as may from time to time be published in The Wall Street Journal
under "Money Rates" ("INTEREST RATE"), plus 2% per month, but in no event
more than the maximum allowed by law.
8.4 Billing Disputes. If PRODUCER, in good faith, disputes an invoice,
PRODUCER shall immediately notify NIAGARA MOHAWK of the basis for the
dispute and pay the portion of such statement conceded to be correct no
later than the due date. Consistent with Section 10.4 herein, if any
amount withheld under dispute by PRODUCER is ultimately determined (under
terms herein) to be due to NIAGARA MOHAWK, said funds held in escrow
shall be paid to NIAGARA MOHAWK within one (1) Business Day of such
determination along with interest accrued at the INTEREST RATE until date
paid. Inadvertent overpayments shall be returned by NIAGARA MOHAWK upon
request or deducted by NIAGARA MOHAWK from subsequent payments, with
interest accrued at the INTEREST RATE from the date originally paid until
the date paid or deducted.
8.5 In the event that NIAGARA MOHAWK is the purchaser of power from the
PRODUCTION FACILITY, any outstanding invoices which the PRODUCER has not
paid to NIAGARA MOHAWK shall be deducted from the payments due PRODUCER
by NIAGARA MOHAWK.
ARTICLE IX
NOTICES
9.1 All notices required or permitted under this AGREEMENT shall be in
writing and shall be personally delivered or sent by certified or
registered first class mail, postage prepaid, telex, facsimile
transmission, or overnight express mail or courier service addressed as
follows:
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TO PRODUCER: TO NIAGARA MOHAWK
POWER CORPORATION:
HUNTLEY POWER LLC MANAGER - TRANSMISSION
c/o NRG ENERGY, INC. & DELIVERY SERVICES
1221 Nicollet Mall 300 Erie Boulevard West
Minneapolis, MN 55403 Syracuse, New York 13202
Attn: Vice President & General Counsel (315) 460-2575
(612) 373-5392
9.2 Either party may change its address for notices by notice to the other in
the manner provided above.
9.3 Notwithstanding paragraph 9.1, any notice hereunder, with respect to a
system emergency or other occurrence requiring prompt attention, may be
made by telephone provided that such notice is confirmed in writing
promptly thereafter.
9.4 These representatives as noted in paragraph 9.1 or their designees shall
be authorized to act on behalf of the parties, and their instructions,
requests, and decisions will be binding upon the parties as to all
matters pertaining to this AGREEMENT and the performance of the parties
hereunder. Only these representatives shall have the authority to commit
funds or make binding obligations on behalf of the parties. These
representatives shall be responsible for tracking work, costs, schedules
and all other matters related to this AGREEMENT, and to the performance
of any third parties.
ARTICLE X
TERM AND TERMINATION
10.1 This AGREEMENT shall become effective as of the date first above written
(the "EFFECTIVE DATE"), subject to its approval or acceptance for filing
by the FERC, and shall continue in effect for twenty (20) years.
10.2 This AGREEMENT shall not merge with or be terminated or superseded by any
future agreement between the parties that does not specifically so
provide.
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10.3 In the event PRODUCER abandons the PRODUCTION FACILITY; becomes
insolvent; or assigns or sublets this AGREEMENT in a manner inconsistent
with this AGREEMENT, or is violating any of the material conditions,
terms, obligations, or covenants of this AGREEMENT, NIAGARA MOHAWK may
terminate this AGREEMENT. Before instituting proceedings before FERC to
terminate the AGREEMENT, NIAGARA MOHAWK must give PRODUCER written notice
of the reasons for termination. If within a period of thirty (30) days of
such notice PRODUCER cures the default or breach cited by NIAGARA MOHAWK
in such notice, to the reasonable satisfaction of NIAGARA MOHAWK, and
shall have complied with the provisions of this AGREEMENT, such notice
shall become null and void and of no effect. Notwithstanding the
foregoing, NIAGARA MOHAWK and PRODUCER may terminate this AGREEMENT upon
mutual agreement set forth in writing; provided, however that the
requesting party provides at least sixty (60) days written notice of
intent to terminate.
10.4 In the event of a billing dispute as set forth in Section 8.4 of this
AGREEMENT between NIAGARA MOHAWK and the PRODUCER, NIAGARA MOHAWK will
not apply to remove the INTERCONNECTION FACILITIES from service or to
terminate transmission service thereon as long as the PRODUCER: (i)
continues to make all payments not in dispute and (ii) pays into an
independent escrow account the portion of the invoice in dispute, pending
resolution of such dispute. If the PRODUCER fails to meet these two
requirements, then a default shall be deemed to exist, to which the
procedures set forth in this section for the disconnection of the
INTERCONNECTION FACILITIES from service shall apply.
10.5 Termination of this AGREEMENT shall not relieve PRODUCER of any of its
liabilities and obligations arising hereunder prior to the date
termination becomes effective, and NIAGARA MOHAWK may take whatever
judicial or administrative actions as appear necessary or desirable to
enforce its rights hereunder. The rights specified herein are not
exclusive and shall be in addition to all other remedies available to
NIAGARA MOHAWK, either at law or in equity, for default or breach of any
provision of this AGREEMENT.
10.6 In the event of termination of this AGREEMENT in accordance with Article
X, NIAGARA MOHAWK will physically disconnect the PRODUCTION FACILITY from
the TRANSMISSION SYSTEM and at NIAGARA MO-
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HAWK'S sole determination remove any or all of NIAGARA MOHAWK'S
INTERCONNECTION FACILITY equipment.
ARTICLE XI
FORCE MAJEURE
11.1 Neither party shall be considered to be in default or breach hereunder,
and shall be excused from performance hereunder, if and to the extent
that it shall be delayed in or prevented from performing or carrying out
any provisions of this AGREEMENT by reason of storm, flood, lightning
strikes, earthquake, fire, ice, snow, epidemic, war, invasion, riot,
civil disturbance, sabotage, explosion, insurrection, military or usurped
power, strikes, stoppage of labor, labor dispute, failure of contractors
or suppliers of material, action of any court or governmental authority,
or any civil or military authority de facto or de jure, change in law,
act of God or the public enemy, or any other cause beyond either party's
control; including, without limitation, disconnection or limited
operation of NIAGARA MOHAWK'S electric system, unscheduled repairs or
maintenance, fuel or energy shortages, or equipment breakdown.
11.2 The party claiming force majeure shall use due diligence to resume
performance or the provision of service hereunder as soon as practicable.
11.3 Neither party shall be liable to the other party for or on account of any
loss, damage, injury or expense, including, but not limited to, special,
indirect and consequential damages, resulting from or arising out of such
delay or inability to perform.
ARTICLE XII
RELATIONSHIP OF THE PARTIES
12.1 Nothing contained in this AGREEMENT shall be construed or deemed to
cause, create, constitute, give effect to, or otherwise recognize
PRODUCER and NIAGARA MOHAWK to be partners, joint venturers, employer and
employee, principal agent, or any other business association, with
respect to any matter.
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12.2 Unless otherwise agreed to in writing signed by both parties, neither
party shall have any authority to create or assume in the other party's
name or on its behalf any obligation, express or implied or to act or
purport to act as the other party's agent or legal empowered
representative for any purpose whatsoever.
12.3 Neither party shall be liable to any third party in any way for any
engagement, obligation, commitment, contract, representation or for any
negligent act or omission to act of the other party, except as expressly
provided for herein.
12.4 The rights and obligations of the parties shall be limited to those
expressly set forth herein.
ARTICLE XIII
THIRD PARTY BENEFICIARY/ASSIGNMENT
13.1 No person or party shall have any rights or interests, direct or
indirect, in this AGREEMENT or the services or facilities to be provided
hereunder, or both, except the parties, theft successors, and authorized
assigns.
13.2 The parties specifically disclaim any intent to create any rights in any
person or party as a third-party beneficiary to this AGREEMENT or to the
services or facilities to be provided hereunder, or both.
13.3 PRODUCER may assign or collaterally assign this AGREEMENT to lenders, or
any financial institution participating in financing PRODUCER's
INTERCONNECTION FACILITY or property acquisition, or to any partnerships
created to operate PRODUCER's facilities, or to any other parties,
including affiliates or partnerships, upon prior written notification to
NIAGARA MOHAWK
13.4 PRODUCER agrees to reimburse NIAGARA MOHAWK for costs and expenses
(including reasonable fees and expenses of NIAGARA MOHAWK'S counsel)
incurred in connection with NIAGARA MOHAWK'S review, execution and
delivery of instruments, agreements or documents necessary in connection
with the PRODUCER'S assignment, transfer, sale or
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other disposition of this AGREEMENT or any interest in the
INTERCONNECTION FACILITY.
13.5 Any assignment in violation of Article XIII shall be considered null and
void from its inception.
13.6 Any NIAGARA MOHAWK authorized assignment shall not relieve PRODUCER of
the responsibility of full compliance with the requirements of this
AGREEMENT.
13.7 PRODUCER shall not make any assignment unless and until its successor in
interest has agreed to undertake the obligations accepted by PRODUCER
herein, and has provided written assurances to NIAGARA MOHAWK of
continued performance and protection against liability upon assignment.
13.8 Assignment contrary to the provisions of this AGREEMENT shall make
PRODUCER the indemnitor of NIAGARA MOHAWK and its successors, against any
liabilities and costs, including reasonable attorneys fees as to which
PRODUCER'S transferee fails to indemnify, defend, and hold harmless
NIAGARA MOHAWK, its agents, employees and its successors, from and
against any loss, damage, liability (civil or criminal), cost, suit,
charge, expense (including reasonable attorneys fees) or cause of action,
whether unconditionally certain or otherwise, incurred by NIAGARA MOHAWK
as a result of said assignment or as a result of any dispute between
PRODUCER and its transferees, or between any subsequent transferees, that
arises from or relates to any assignment by PRODUCER.
13.9 This AGREEMENT shall bind and inure to the benefit of the parties to this
AGREEMENT, their successors and permitted assigns.
ARTICLE XIV
APPROVAL
14.1 NIAGARA MOHAWK shall file this AGREEMENT with the appropriate regulatory
authorities. If such regulatory body substantially modifies the terms and
conditions of this AGREEMENT, either party shall have the right to
unilaterally terminate this AGREEMENT.
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14.2 This AGREEMENT is entered into subject to authorization by, or
requirements of regulatory authorities having jurisdiction in respect to
this AGREEMENT.
14.3 Nothing contained in this AGREEMENT shall be construed as affecting in
any way the right of NIAGARA MOHAWK to unilaterally make application to
the FERC for a change in rates, terms and conditions under Section 205 of
the Federal Power Act and pursuant to the Commission's rules and
regulations.
ARTICLE XV
WAIVER
15.1 No provision of this AGREEMENT may be waived except by mutual agreement
of the parties as expressed in writing and signed by both parties.
15.2 Any waiver that is not in writing and signed by both parties shall be
null and void from its inception.
15.3 No express waiver in any specific instance as provided in a required
writing shall be construed as a waiver of future instances unless
specifically so provided in the required writing.
15.4 No express waiver of any specific default shall be deemed a waiver of any
other default whether or not similar to the default waived, or a
continuing waiver of any other right or default by a party.
15.5 The failure of either party to insist in any one or more instances upon
the strict performance of any of the provisions of this AGREEMENT, or to
exercise any right herein, shall not be construed as a waiver or
relinquishment for the future of such strict performance of such
provision or the exercise of such right.
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ARTICLE XVI
AMENDMENT AND MODIFICATION
16.1 This AGREEMENT may be amended or modified only if the amendment or
modification is in writing and executed by both parties. Any amendment or
modification that is not in writing and signed by both parties shall be
null and void from its inception.
16.2 No express amendment or modification in any specific instance as provided
herein shall be construed as an amendment or modification of future
instances, unless specifically so provided in the required writing. -
16.3 Nothing in this AGREEMENT shall be construed as affecting in any way the
ability of the PRODUCER to exercise its rights under the Federal Power
Act and pursuant to FERC's rules and regulations promulgated thereunder.
ARTICLE XVII
GOVERNING LAW
17.1 This AGREEMENT and the rights and obligations of the parties to this
AGREEMENT shall be governed by and construed in accordance with the laws
of the State of New York.
17.2 PRODUCER and NIAGARA MOHAWK agree to submit to the jurisdiction of the
courts in the State of New York for the purposes of interpretation and
enforcement of this AGREEMENT.
17.3 PRODUCER and NIAGARA MOHAWK may waive personal service by manual delivery
and agree that service of process on PRODUCER and NIAGARA MOHAWK in any
action concerning or arising out of this AGREEMENT may be made by
registered or certified mail, return receipt requested, delivered to
PRODUCER and NIAGARA MOHAWK at its address set forth in Article IX.
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ARTICLE XVIII
DISPUTE RESOLUTION
18.1 Any claim or dispute, which either party may have against the other,
arising out of the AGREEMENT shall be submitted in writing to the other
party not later than sixty (60) days after the circumstances which gave
rise to the claim or dispute have taken place. The submission of any
claim or dispute shall include a concise statement of the question or
issue in dispute, together with relevant facts and documentation to fully
support the claim.
18.2 If any such claim or dispute arises, the parties shall use their best
efforts to resolve the claim or dispute, initially through good faith
negotiations or upon the failure of such negotiations, through
Alternative Dispute Resolution ("ADR") techniques in accordance with the
Model Procedure for Mediation of Business Disputes as published by the
Center for Public Resources; however, either party may terminate its
participation in ADR during any stage of ADR and proceed under paragraph
18.3.
18.3 If any claim or dispute arising hereunder is not resolved pursuant to
paragraph 18.2, either party may, upon giving the other party at least
ten (10) days prior written notice, initiate litigation to submit such
claim or dispute for decision by a court of competent jurisdiction.
18.4 Nothing in this Article XVIII shall restrict the rights of any party to
file a complaint with FERC under relevant provisions of the Federal Power
Act
ARTICLE XIX
SEVERABILITY
19.1 If any term of this AGREEMENT, or the interpretation or application of
any term or provision to any prior circumstance, is held to be
unenforceable, illegal, or invalid by any governmental agency or court of
competent jurisdiction, the remainder of this AGREEMENT, or the
interpretation or application of all other terms or provisions to persons
or circumstances other than those that are unenforceable, illegal, or
invalid, shall not be affected thereby and each term and provision shall
be valid and be enforced to the fullest extent permitted by law.
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ARTICLE XX
HEADINGS
20.1 The headings in this AGREEMENT are included herein for convenience of
reference only and shall not constitute a part of this AGREEMENT for any
other purpose, or limit or be used as an aid in construing the provisions
of this AGREEMENT.
ARTICLE XXI
INTEGRATION/MERGER/SURVIVABILITY
21.1 This AGREEMENT sets forth the entire understanding and agreement of the
parties as to the subject matter of this AGREEMENT and merges and
supersedes all prior agreements, commitments, representations, writings
and discussions between the parties with respect to the INTERCONNECTION
FACILITY.
21.2 The obligations of the PRODUCER shall survive the completion,
termination, or abandonment of this AGREEMENT and of the PRODUCER'S
facilities and work.
ARTICLE XXII
COMPLIANCE WITH THE NERC
22.1 Both parties agree to comply with any existing or future criteria,
guides, and procedures established by the NERC or any successor
organization to ensure the continued reliability of North America's
interconnected bulk electric systems.
ARTICLE XXIII
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
HUNTLEY POWER LLC NIAGARA MOHAWK POWER
CORPORATION
By: /s/ Craig A. Mataczynski By: /s/ Clement E. Nadeau
------------------------------ ------------------------------
Title: President Title: Vice President
--------------------------- ---------------------------
Date: 4/15/99 Date: April 20, 1999
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