EXHIBIT 10.24
ADMINISTRATIVE SERVICES AGREEMENT
BY AND BETWEEN
CALENERGY OPERATING COMPANY,
a Delaware corporation
AND
VULCAN/BN GEOTHERMAL POWER COMPANY,
a Nevada general partnership
TABLE OF CONTENTS
PAGE
1. Definitions....................................... 2
2. Services.......................................... 2
3. Subcontracting.................................... 2
4. Reimbursement and Other Compensation for Services. 2
5. Term and Termination.............................. 3
6. Disclaimer of CEOC's Liability.................... 4
7. Non-Waiver of Breach.............................. 4
8. Arbitration....................................... 4
9. Attorneys' Fees................................... 5
10. Force Majeure..................................... 5
11. Invalid Provision................................. 6
12. Assignment........................................ 6
13. Governing Law..................................... 6
14. Entire Agreement - Amendments..................... 6
15. Communications.................................... 7
16. Counterparts...................................... 7
17. Exhibits.......................................... 7
18. Third Party Beneficiaries......................... 7
19. Headings.......................................... 7
ADMINISTRATIVE SERVICES AGREEMENT
PREAMBLE
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made as
of June 17, 1996, by and between CALENERGY OPERATING COMPANY, a Delaware
corporation ("CEOC"), and VULCAN/BN GEOTHERMAL POWER COMPANY, a Nevada general
limited partnership ("Owner").
RECITALS
A. Owner owns the Vulcan Facility located in the Salton Sea Known
Geothermal Resource Area ("SSKGRA").
B. Owner intends to operate the Vulcan Facility under the following
operating agreements: (i) a Construction, Operating and Accounting Agreement
by and between Owner and Vulcan Power Company, a Nevada corporation ("VPC"),
pursuant to which VPC will operate the Vulcan Facility on behalf of Owner;
(ii) an Easement Grant Deed and Agreement Regarding Rights for Geothermal
Development by and between VPC and Magma pursuant to which Magma Power
Company, a Nevada corporation ("Magma"), will supply Owner with the right to
extract Geothermal Brine and use geothermal brine-derived steam which is
necessary to operate the Vulcan Facility; and (iii) a Power Purchase Contract
by and between Owner and Southern California Edison Company.
C. Owner desires to exploit CEOC's administrative and management
resources, and to that end Owner desires to employ, hire or otherwise retain
the administrative and management services of CEOC for purposes of
administering the functions of the Vulcan Facility.
D. Owner and CEOC desire to enter into this Agreement pursuant to
which CEOC, for a fee will provide administrative and management services as
more fully described herein. In consideration for the services provided by
CEOC hereunder, Owner shall compensate CEOC for, among other things, all costs
and expenses actually incurred by CEOC in providing such services, as more
particularly described herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follow:
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AGREEMENT
1. Definitions.
1.1 Unless the context shall otherwise require, capitalized
terms used and not otherwise defined herein shall have the respective meanings
assigned thereto in Schedule Z hereto, which shall be incorporated by
reference herein.
2. Services. In consideration of the payment by Owner to CEOC as
provided in Section 4 hereof, CEOC agrees to perform during the term of this
Agreement those functions normally considered part of the day-to-day
administrative and management activities for facilities similar to the Vulcan
Facility as determined by Owner which are not within the scope of Services to
be provided by VPC to Owner pursuant to the Operating and Maintenance
Agreement. The Services to be provided hereunder include, without limitation,
(i) general bookkeeping and financial accountingy, (ii) general legal services
(but not legal services of an extraordinary nature including, without
limitation, legal services in connection with litigation or administrative
proceedings), (iii) personnel administration and payroll services, (iv) cash
management services, (v) energy production oversight and the determination of
output levels; (vi) consulting services with respect to geothermal electrical
energy production, (vii) assisting Owner in obtaining any franchises, permits,
licenses, easements or rights-of-way necessary for continued operation of the
Vulcan Facility, and (viii) any other administrative and management services
that may be needed in connection with the operation of the Vulcan Facility.
3. Subcontracting. In connection with CEOC's providing of the
Services contemplated by this Agreement, CEOC may subcontract with or
otherwise retain the services of other Persons including, but not limited to,
Magma and other Affiliates of CEOC, and Owner hereby consents to such
subcontracting for purposes of Section 12 hereof. For purposes of this
Agreement, any Services performed by such Persons shall be deemed to have been
performed by CEOC.
4. Reimbursement and Other Compensation for Services.
1. In consideration of the provision by CEOC to Owner of the
Services contemplated by Section 2 hereof, within thirty (30) days after Owner
has received an invoice from CEOC specifying the Services rendered to Owner by
CEOC and the amount to be paid to CEOC therefor, Owner shall pay
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to CEOC such specified amount. In charging Owner for Services under this
Section 4, CEOC shall have the right to charge Owner an amount which shall
enable CEOC to (a) recoup the actual costs and expenses incurred by CEOC in
rendering the Services plus (b) earn a reasonable profit for the Services so
rendered including, without limitation, a reasonable rate of return on CEOC's
invested capital used in connection with the provision by CEOC of the
Services, taking into consideration factors including the extent to which CEOC
can reasonably expect to earn a return on itsinvested capital by utilizing
CEOC's equipment and materials for providing services other than to the Vulcan
Facility. As used in this Section 4.1, "actual costs and expenses incurred by
CEOC" includes, without limitation, (a) the actual cost to CEOC of goods and
materials used by CEOC in rendering Services, (b) the pro rata cost to CEOC of
personnel providing labor or services in the course of CEOC's provision of
Services and (c) the actual cost to CEOC of retaining another Person, whether
Magma or another Affiliate of CEOC or otherwise, in connection with the
provision of Services. In the event CEOC subcontracts with any Person,
including, without limitation, Magma or another Affiliate as provided in
Section 3 hereof, any payment to CEOC under this Section 4.1 on account of the
Services so subcontracted shall be made to CEOC only to the extent of the
amount charged CEOC by such Person and shall not include any amounts
representing a mark-up by CEOC over the amount so charged.
2. With respect to any calculation of actual costs and
expenses or any allocation of costs contemplated by Section 4.1 hereof, Owner
shall be bound by CEOC's determination thereof unless the same is clearly
erroneous.
5. Term and Termination.
1. Unless terminated as provided in Section 11 hereof, by
written agreement between Owner and CEOC as provided in Section 14 hereof, or
as hereinafter provided in this Section 5, this Agreement shall remain in
effect until, and shall terminate on March 14, 2020.
2. In the event of a material default by either party in the
performance of its duties, obligations or undertakings under this Agreement,
the other party shall have the right to give written notice to the defaulting
party advising such party of the specific default involved and, if within
thirty (30) days after such notice the defaulting party shall not have
remedied or commenced diligently to remedy the default, the other party shall
have the right, in addition to any other rights and remedies it may have, to
terminate this Agreement upon ten (10) days written notice to the defaulting
party.
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3. Notwithstanding any other provision of this Agreement, and
in addition to any other right it may have, CEOC shall have the right to
terminate this Agreement, effective immediately, if, at any time, Owner is
adjudged bankrupt or insolvent, or files a petition in bankruptcy or an answer
admitting the material facts recited in such a petition filed by another, or
is put or decides to go into dissolution or liquidation (other than in
connection with a merger, consolidation or amalgamation), or otherwise
discontinues business, makes an assignment for the benefit of its creditors or
any other general arrangement with its creditors, becomes insolvent or unable
to meet its current payments, or has a receiver or other custodian of any kind
appointed to administer any substantial amount of its property, or otherwise
seeks to take advantage of any bankruptcy or insolvency statute now or
hereafter in effect.
4. If this Agreement is terminated prior to the expiration of
its term as provided in Section 5.1 hereof, Owner shall, in addition to any
other rights, remedies and obligations it may have, pay CEOC all amounts due
and payable to CEOC under Section 4 hereof as of the date the Agreement is
effectively terminated.
6. Disclaimer of CEOC's Liability. CEOC, in providing the Services
provided for herein, shall use its good faith efforts in providing such
services, but CEOC shall not be liable to Owner for damages arising out of or
resulting from the provision of such Services, except to the extent that such
damages arise out of or result from the gross negligence or willful misconduct
or CEOC, nor shall CEOC be liable to Owner for consequential damages under any
circumstances. CEOC shall have no responsibility for the ability of Owner to
effectively operate the Vulcan Facility or the claims of third parties arising
with respect to the Vulcan Facility. Owner shall indemnify and hold harmless
CEOC against all liability or responsibility to Owner or to others for any
failure in production, operation or otherwise of the Vulcan Facility. CEOC
does not warrant and shall not be responsible for the quality of services or
any design, specification, drawing, blueprint, reproduced tracing, formula,
production process or other data or information furnished by it to Owner in
the course of fulfilling its obligations under this Agreement, but shall
furnish such in good faith to the best of CEOC's knowledge and ability.
7. Non-Waiver of Breach. Either party hereto may specifically waive
any breach of this Agreement by the other party, but no such waiver shall be
deemed to have been given unless such waiver is in writing, signed by the
waiving party and specifically designates the breach waived, nor shall any
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such waiver constitute a continuing waiver of similar or other breaches.
8. Arbitration. All disputes arising under this Agreement shall be
settled by arbitration. The party desiring such arbitration shall give written
notice to that effect to the other party and in such notice shall appoint as
an arbitrator a disinterested person of recognized competence in the area at
issue. Within fifteen (15) days thereafter, the other party shall, by written
notice to the originating party, appoint a second person similarly qualified
as the second arbitrator. The arbitrators thus appointed shall appoint a third
person similarly qualified as the third arbitrator, and such three arbitrators
shall as promptly as possible determine such matter with the parties, each
being entitled to present evidence and argument to the arbitrators; provided,
however, that:
(i) if the second arbitrator shall not have been appointed as
aforesaid, the first arbitrator shall determine such matter; and
(ii) if the two arbitrators appointed by the party shall be
unable to agree upon the appointment of a third arbitrator within
fifteen (15) days after the appointment of the second arbitrator,
they shall give written notice of such failure to agree to the
parties, and, if the parties fail to agree upon the selection of such
third arbitrator within fifteen (15) days thereafter, then within ten
(10) days thereafter, either of the parties upon written notice to
the other party may apply for such appointment to the Federal
District Court or District Court in Omaha, Nebraska.
The arbitrator or arbitrators shall only interpret and apply the
terms and provisions of this Agreement and shall not change any such terms or
provisions or deprive either party of any right or remedy expressly or
impliedly provided for in this Agreement.
The determination of the majority of the arbitrators or the sole
arbitrator, as the case may be, shall, to the extent permitted by law, be
conclusive upon the parties. The arbitrator or arbitrators shall give written
notice to the parties stating their determination, and shall furnish to each a
copy of such determination signed by them. In the event of the failure,
refusal or inability of any arbitrator to act, a new arbitrator shall be
appointed in his stead, which appointment shall be made in the same manner as
hereinbefore provided for the appointment of the arbitrator so failing,
refusing or unable to act.
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9. Attorneys' Fees. If either party hereto commences litigation or
arbitration for the judicial or other interpretation, enforcement,
termination, cancellation or rescission hereof, or for damages for the breach
hereof, the prevailing party in any such action, trial, arbitration or appeal
thereon shall be entitled to its reasonable attorneys' fees and court,
arbitration and other costs incurred, to be paid by the losing party as fixed
by the court or arbitrator in the same or a separate suit, and whether or not
such action is pursued to decision or judgment.
10. Force Majeure.
1. Neither Owner nor CEOC shall be liable in damages to the
other for any act, omission or circumstance ("Event of Force Majeure")
occasioned by or in consequence of any acts of God, acts of the public enemy,
wars, blockades, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, civil disturbances, explosions, sabotage,
the binding order of any court or governmental authority which has been
resisted in good faith by all reasonable legal means, Federal, State or local
laws, or other event or circumstance not within the control of such party
preventing such party from performing its obligations hereunder, whether
caused or occasioned by, or happening on account of, the act or omission of
one of the parties, not within the control of the party claiming suspension
and which by the exercise of due diligence such party is unable to prevent or
overcome.
2. Such Events of Force Majeure shall not relieve Owner or
CEOC of liability in the event of either party's concurring negligence or in
the event of either party's failure to use due diligence to remedy the
situation and to remove the cause in an adequate manner and with all
reasonable dispatch, nor shall such Events of Force Majeure relieve either
party of liability unless such party shall give notice and full particulars of
the same in writing to the other party within ten (10) days of the occurrence
relied on. In no event, however, shall an Event of Force Majeure relieve Owner
from the obligation of making payments due under this Agreement at the time of
such occurrence. The parties agree that should any Event of Force Majeure
remain in existence for a period of six (6) months, this Agreement may be
terminated by the party not claiming suspension of the Agreement under such
Event of Force Majeure upon the giving of written notice by such party to the
other; provided, however, that such six (6) month period shall be extended for
a reasonable time so long as throughout such six (6) month period the party
claiming suspension of this Agreement under the Event of Force Majeure has
diligently proceeded to
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terminate the Event of Force Majeure and continues to do so throughout such
extension.
11. Invalid Provision.
1. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted; provided, however, that if any of the
provisions of Sections 2, 4 or 5 hereof are held invalid or unenforceable by
any court or other relevant authority, Owner and CEOC shall hold consultations
over a period of ninety (90) days, commencing immediately, in an effort to
work out satisfactory terms for continuation of this Agreement. If Owner and
CEOC do not reach agreement within this period, CEOC shall have the right to
terminate this Agreement, effective immediately.
2. In the event that any provision, term, condition or object
of this Agreement may be in conflict with any law, measure, ruling, court
judgment (by consent or otherwise), or regulation of the government of the
United States of America, and the legal counsel of either party shall advise
that in their considered opinion such conflict, or a reasonable possibility of
such conflict, exists, then either party may propose to the other appropriate
modifications of this Agreement to avoid such conflict. In such case, if an
agreement of modification is not reached within ninety (90) days from such
proposal, the party making such proposal, after sixty (60) days' written
notice to the other party, may terminate the agreement in its entirety as of a
date subsequent to such sixty (60) days, and which shall be specified in such
notice.
12. Assignment. Subject to Section 3 hereof, neither Owner nor CEOC
shall grant, assign or otherwise convey any of their respective rights or
delegate any of their respective obligations under this Agreement without the
prior written consent of the other party which consent shall not be
unreasonably withheld.
13. Governing Law. The existence, validity, construction, operation
and effect of this Agreement shall be determined in accordance with and
governed by the laws of the State of California. This Agreement shall be
construed equally as against the parties hereto, and shall not be construed
against the party responsible for its drafting.
14. Entire Agreement - Amendments. This Agreement constitutes the
entire agreement of the parties and the provisions hereof shall supersede any
and all prior agree-
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ments or understandings relating to the same subject
matter. This Agreement may be amended only by a writing signed by a duly
authorized representative of both parties.
15. Communications. All notices, requests, offers and other
communications required or permitted to be made under this Agreement shall be
in writing and shall be deemed to have been duly given and received,
regardless of when and whether received, either: (a) on the day of delivery,
if delivered
To CEOC at:
CalEnergy Operating Company
302 South 36th Street, Suite 400-C
Omaha, Nebraska 68131
Attention: General Counsel
To Owner at:
Vulcan/BN Geothermal Power Company
302 South 36th Street, Suite 400-E
Omaha, Nebraska 68131
Attention: General Counsel
or at such other address as either party most recently may have designated in
writing to the other party for such purpose; or (b) on the day sent, when sent
by prepaid telex, telegram, cable or radiogram, and confirmed the same day by
prepaid first-class registered airmail, addressed to CEOC or Owner, as the
case may be, at their respective addresses aforesaid.
16. Counterparts. This Agreement may be executed in counterparts
and any number of counterparts signed in the aggregate by the parties hereto
shall constitute a single original instrument.
17. Exhibits. All exhibits and schedules attached hereto are hereby
incorporated herein by this reference.
18. Third Party Beneficiaries. The covenants contained herein are
made solely for the benefit of the properties, parties and successors and
assigns of such parties as specified herein, and shall not be construed as
having been intended to benefit any third party not a party to this Agreement.
19. Headings. The headings herein are for reference only and shall
not affect the construction of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by their duly authorized officers as of the day and year first
above written.
CEOC:
CALENERGY OPERATING COMPANY,
a Delaware corporation
By: /s/ John G. Sylvia
______________________________
Name: John G. Sylvia
______________________________
Title: Senior Vice President
______________________________
OWNER:
VULCAN/BN GEOTHERMAL POWER COMPANY,
a Nevada general partnership
By: VULCAN POWER COMPANY,
a Nevada corporation, as
General Partner
By: /s/ John G. Sylvia
______________________________
Name: John G. Sylvia
______________________________
Title: Senior Vice President
______________________________
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TABLE OF SCHEDULES
Section
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Schedule "Z" Schedule of Defined Terms 1.1
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