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EXHIBIT 10.13
ENERGY MANAGEMENT SERVICE AGREEMENT
WITH ILLINOVA ENERGY PARTNERS, INC.
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[LETTERHEAD OF ILLINOVA]
April 5, 1999
Mr. Joel Dickson
Vice President of Customer Service and Operations Support
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
Dear Mr. Dickson:
This letter constitutes an Agreement ("Agreement") between ILLINOVA ENERGY
PARTNERS, INC. ("IEPI"), a Delaware corporation, and the Southern California
Water Company (SCWC) and its Bear Valley Electric Division (BEAR VALLEY). IEPI
and SCWC are each sometimes referred to herein as "Party" and are collectively
referred to as "Parties." The purpose of this Agreement is to enable a Party to
purchase, sell or exchange capacity, energy, and/or other services (a
"Transaction") from, to, or with the other Party in accordance with the terms
and conditions provided herein. This Agreement is not intended to obligate
either Party to purchase, sell or exchange any amount of such capacity, energy,
and/or other services from, to or with the other Party except as provided
herein.
Term and Conditions
1. Term of Agreement
This Agreement shall become effective upon execution by both Parties and
commence on May 1, 1999, and shall remain in effect until April 30, 2002;
provided, however, that this Agreement shall remain in effect as to any
Transaction agreed upon by the Parties prior to termination until the
completion of and final payment for such Transaction.
2. Availability for Purchase, Sale or Exchange of Capacity, Energy and/or
Other Services
a. IEPI shall provide services under this section pursuant to the terms
and conditions of the Scheduling Coordination and Real-Time Services
Agreement between IEPI and SCWC, dated April 5, 1999.
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Mr. Joel Dickson
April 5, 1999
Page 2
3. Compensation for Capacity, Energy and/or Other Services
The compensation to be paid with respect to a Transaction hereunder shall
be as specified in the agreement entered into pursuant to Section 2(b) or
Section(c); provided, however, that the compensation for a sale of
capacity, energy and/or other services by IEPI shall be pursuant to IEPI's
then current FERC Electric Rate Schedule. IEPI's current schedule, Schedule
No. 1, is attached hereto as Exhibit A and made a part hereof. Such
Schedule may be amended from time to time.
4. Reliability
Both IEPI and SCWC shall comply with the operation and scheduling
guidelines specified by the North American Electric Reliability Council and
the Western Systems Coordinating Council.
5. Billing and Payment
a. All power Transactions hereunder shall be accounted for on the basis
of scheduled hourly quantities. Each Party shall maintain records of
hourly schedules for accounting and operating purposes. The billing
period for Transactions hereunder shall be one (1) calendar month.
b. A bill shall be submitted within approximately ten (10) days following
the last day of each month covering Transactions during that month.
Payment shall be due within twenty (20) days of the date the bill was
received. Payment shall be made by electronic wire transfer to the
address set forth in this Section 5.
c. Amounts not paid on or before the due date shall accrue interest at
one and one half percent (1 1/2%) per month or the maximum rate
permitted by law, whichever is less, from the due date until payment
is made.
d. In the event any portion of a bill is in dispute, the disputed amount
shall be paid under protest when due. The dispute shall be discussed
and resolved by the Authorized Representatives, who shall use their
best efforts to amicably and promptly resolve the dispute. Upon
determination of the correct billing amount, the proper adjustment
shall be paid or refunded promptly with interest accrued in accordance
with Section 5(c) and computed from the date payment was received to
the date the adjustment is made.
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Mr. Joel Dickson
April 5, 1999
Page 3
e. All billings to SCWC shall be sent to:
Mr. Raymond P. Juels
Manager of Energy Resources
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
or to such address as SCWC may specify by written notice given as
provided herein.
f. All payments to IEPI greater than $50,000 shall be by wire transfer
to:
American National Bank
2000 South Naperville Road
Wheaton, IL 60187
ABA#: 071000770
Account#: 1818-0752
For Illinova Energy Partners
All payments to IEPI less than $50,000 may be made by check to:
Illinova Power Marketing, Inc.
Attention: Jennifer Hughey, Controller
6955 Union Park Center, Suite 300
Midvale, Utah 84047
or to such other address as IEPI may specify by written notice given
as provided herein.
6. Authorized Representatives
Within thirty (30) days after execution of this Agreement, each Party
shall designate in writing its Authorized Representative(s) for
purposes of this Agreement. Either Party may, by written notice to the
other given as provided herein, change its Authorized
Representative(s).
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Mr. Joel Dickson
April 5, 1999
Page 4
7. Tax Liability
All transactions are subject to any applicable sales, use, franchise,
excise, ad valorem or other similar tax. Receipt of satisfactory
evidence of exemption is required to avoid any applicable taxation.
8. Notices
All written notices under this Agreement (except bills given pursuant
to Section 5) shall be deemed effective upon receipt if delivered in
person or sent by facsimile, express courier, or registered or
certified mail, postage prepaid, to the address specified below:
If to IEPI:
Illinova Power Marketing, Inc.
Attention: Jennifer Hughey, Controller
6955 Union Park Center, Suite 300
Midvale, Utah 84047
Fax No.: (801) 568-2104
If to SCWC:
Mr. Raymond P. Juels
Manager of Energy Resources
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
A Party may, by notice given as provided in this Section, change the
address to which notice is to be given.
9. Necessary Authorization
Each Party represents that it has the necessary corporate and/or
legal authority to enter into this Agreement and to perform each and
every duty and obligation imposed herein, and that this Agreement
constitutes a valid, binding and enforceable obligation of such
Party. Each individual affixing a signature to this Agreement
represents and warrants that he or she has been duly authorized to
execute this Agreement on behalf of the Party he or she represents.
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Mr. Joel Dickson
April 5, 1999
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10. indemnification
Each party agrees to protect, indemnify and hold harmless the other Party,
its directors, officers, employees and agents, against and from any and all
losses, claims, actions, suits and proceedings (including attorneys fees
and costs) for or on account of injury to or death of persons or damage to
property resulting from or arising out of the indemnifying Party's actions
or facilities, excepting only such injury, death, or damage as may be
caused by the fault or negligence of the other Party, its directors,
officers, employees, or agents. This Section 10 is not intended to impose
on a Party an obligation to protect, indemnify and defend the other Party
with respect to injury or death of persons or damage to property, resulting
from or arising out of the fault or negligence of entities or persons other
than a Party, its directors, officers, employees or agents.
11. Uncontrollable Forces
Neither Party shall be considered to be in default in the performance of
any obligations under this Agreement (other than obligations to pay bills)
when and to the extent such failure of performance shall be due to any
uncontrollable force. The term "uncontrollable force" shall mean any cause
beyond the control of the Party affected, including but not restricted to,
failure or threat of failure of facilities, flood, earthquake, geohydraulic
subsidence, tornado, storm, fire, or other catastrophe, civil disobedience,
labor dispute, or sabotage, restraint by court order or public authority
(whether valid or invalid), and action or non-action by or inability to
obtain or maintain the necessary authorizations or approvals from any
governmental agency or authority. An "uncontrollable force" must be a
cause which by exercise of due diligence the affected Party could not
reasonably have been expected to avoid and which by exercise of due
diligence it shall not be able to overcome. The failure to perform for any
reason of any supplier of capacity, energy or other services to IEPI shall
constitute an uncontrollable force affecting IEPI and entitling IEPI to
relief under this Section 11. No Party shall, however, be relieved of
liability for failure of performance if such failure is due to causes
arising out of its own negligence or due to removable or remediable causes
which it fails to remove or remedy within a reasonable time period. Nothing
contained herein shall be construed so as to require a Party to settle any
strike or labor dispute in which it may be involved. A Party rendered
unable to fulfill any of its obligations under this Agreement by reason of
uncontrollable force shall give prompt written notice of such fact to the
other Party and shall exercise due diligence to remove such inability with
all reasonable dispatch.
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Mr. Joel Dickson
April 5, 1999
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12. Audit Rights
Upon prior notice, SCWC shall have the right to designate its own employee
representative(s) or its contracted representative(s) with a certified
public accounting firm who shall have the right to examine those accounts,
books, records, or supporting documentation to verify the accuracy of any
statement, charge, computation or demand made under or pursuant to any
agreement and related capacity, energy, transmission or other electric
services agreements. Any such audit(s) shall be at the auditing Party's
expense and undertaken at responsible times and in conformance with
generally accepted auditing standards. The IEPI agrees to fully cooperate
with any such audit(s).
The right to audit shall extend during the length of any agreement and for
a period of not more than one (1) year following the month in which
services were performed. The Parties shall retain all necessary records and
documentation for the entire length of this audit period.
13. Control and Payment of Subordinates
SCWC retains IEPI on an independent contractor basis and not as an
employee. The personnel performing the services contemplated by this
agreement on behalf of SCWC shall at all times be under IEPI's exclusive
direction and control and are not employees of SCWC. IEPI shall pay all
wages, salaries, and other amounts due such personnel in connection with
their performance of services under any agreement and as required by law.
IEPI shall be responsible for all reports and obligations regarding such
personnel including, but not limited to: social security taxes, income tax
withholding, unemployment insurance, and worker's compensation insurance.
14. Fair Employment
Parties agree not to unlawfully discriminate in its employment practices
against any employee, applicant for employment, or group of people on the
basis of race, religion, color, sex, age, physical condition or national
origin.
15. Assignment
No transfer or assignment of all or any part of this Agreement or of any
rights, benefits, or duties hereunder by any Party shall be effective
without the prior written consent of the other Party, which consent shall
not be unreasonably withheld; provided, that this Section 15 shall not
apply to interests which arise by reason of security agreements
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Mr. Joel Dickson
April 5, 1999
Page 7
heretofore granted or executed by a Party, or to an assignment to the
successor of a Party by merger or corporate reorganization.
16. No Dedication of Facilities
Any undertaking by one Party under any provisions of this Agreement shall
not constitute the dedication of the system or any portion thereof of such
Party to the public or to the other Party or any other person or entity,
and it is understood and agreed that any such undertaking by either Party
shall cease upon the termination of such Party's obligations under this
Agreement.
17. Choice of Laws
This Agreement shall be governed by and construed in accordance with the
laws of the State of California, except to the extent preempted by the
Federal Power Act and the rules and regulations of the FERC.
18. Binding Effect
The terms and provisions of this Agreement, and the respective rights and
obligations hereunder of each Party, shall be binding upon, and inure to
the benefits of, its successors and permitted assigns.
19. Non-Waiver of Defaults
No waiver by either Party of any default of the other Party under this
Agreement shall operate as a waiver of a future default, whether of a like
or different character.
20. Written Amendments
No modification of the terms and provisions of this Agreement shall be or
become effective except by written amendment executed by the Parties.
21. Severability
Should any provision of this Agreement for any reason be declared invalid
or unenforceable by final and applicable order of any court or regulatory
body having jurisdiction, such decision shall not affect the validity of
the remaining portions, and the remaining portions shall remain in force
and effect as if this Agreement had been executed without the invalid
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Mr. Joel Dickson
April 5, 1999
Page 8
portion. This Agreement is subject to review by the California Public
Utilities Commission "CPUC". The Agreement may be terminated if
disapproved by the CPUC: however, SCWC shall be liable for any economic
damages to IEPI with respect to any power transactions made under this
Agreement with IEPI.
22. Survival
Any provisions(s) of this Agreement that expressly or by implication comes
into or remains in force following the termination or expiration of this
Agreement shall survive the termination or expiration of this Agreement.
If the foregoing terms are acceptable to SCWC, please sign and return one
copy of this Agreement. The remaining copy is for your files.
Sincerely,
/s/ MARK V. ALLEN
-----------------------
Mark V. Allen
Director, Regional Marketing
Illinova Energy Partners, Inc.
Accepted as of this 5 day of April, 1999 for:
The Southern California Water Company
/s/ JOEL A. DICKSON
------------------------
Joel A. Dickson
By: Mr. Joel Dickson
Title: Vice President of Customer Service and Operations Support
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EXHIBIT A
ILLINOVA ENERGY PARTNERS, INC.
FERC TARIFF NO. 1
1. Availability: Illinova Energy Partners, Inc. ("IEPI") makes electric energy
and capacity available for resale under this Rate Schedule to any
purchaser.
2. Applicability: This schedule is applicable to all sales of energy or
capacity by IEPI not otherwise subject to a particular rate schedule of
IEPI.
3. Rates: All sales shall be made at rates established by agreement between
the purchaser and IEPI.
4. Other Terms and Conditions: All other terms and conditions shall be
established by agreement between the purchaser and IEPI.
5. Affiliate Sales and Purchases Prohibited: No sale or purchase may be made
pursuant to this Rate Schedule to or from any IEPI affiliate.
6. Effective Date: This Rate Schedule is effective on and after May 20, 1995.
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[ILLINOVA LETTERHEAD]
Mr. Raymond P. Juels
Manager of Energy Resources
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
RE: Illinova Energy Partners, Inc. (IEP) Agreements with Southern California
Water Company (SCWC) for Electric Power Management Services
Dear Ray:
IEP hereby submits its originals of our three-year Daily Purchasing Agreement.
Please execute both originals for each agreement, keep one for your records and
forward one executed original back to IEP per my attention. I look forward to
our transition meeting at 2:00 p.m. in IEP's Irvine offices on Friday, April 23,
1999.
If you have any questions, please call myself at (801) 568-2126. Thank you again
for your business, and Illinova looks forward to commencing service for you.
Sincerely,
/s/ MARK V. ALLEN
Mark V. Allen
Director, Regional Marketing
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[ILLINOVA LETTERHEAD]
VIA FACSIMILE
April 5, 1999 IEP REF# S- S-BEAR VALLEY - SCWC-001
Mr. Joel Dickson
Vice President of Customer Service and Operations Support
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
This letter agreement outlines the terms and conditions of a transaction between
the Southern California Water Company, its Bear Valley Electric Division and
Illinova Energy Partners, Inc. (IEP).
BUYER: Southern California Water Company
SELLER: Illinova Energy Partners, Inc.
PRODUCT: Firm Energy
TERM: May 1, 1999 through April 30, 2000.
HOURS: Monday through Sunday, Hour Ending (HE) 0100 through Hour
Ending (HE) 2400, Pacific Prevailing Time (PPT), including
NERC Holidays.
AMOUNT: MW PER HOUR DAYS HOURS PER DAY TOTAL MWh
----------- ---- ------------- ---------
12 365 24 105,120
PRICE: US DOLLARS $28.00/MWh
POINT OF DELIVERY: Delivered at California PX location take-out points,
including Victorville-Lugo midpoint and Vista Substation.
SCHEDULING: IEP will schedule energy based upon the amounts above. IEP's
telephone numbers for real-time coverage of this agreement
are (801) 568-2151 and 1-800-500-3260.
CURTAILMENTS: Curtailments are only permitted for system emergencies due
to UNCONTROLLABLE FORCES (unanticipated events that prevent
a Party from performing it's obligations at the Delivery
Point to deliver or receive energy, which is not within the
reasonable control and which by the exercise of all
commercial efforts such Party has been unable to overcome or
obtain or cause to be obtained substitute performance
therefore). Curtailments shall not be made for economic
reasons.
DAMAGES: If SELLER fails to deliver the Amount, where such failure
was not excused by uncontrollable forces (as defined under
Curtailments) or by Buyer, Seller shall be liable to Buyer
for all such energy. The liability shall be calculated as
the difference between
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April 5, 1999
1) Buyer's reasonably incurred cost of replacing the comparable
energy Seller failed to deliver (per megawatt-hour) and 2) the
PRICE times the total Contract energy not delivered, to the
extent that the calculation resulted in a positive number.
If BUYER fails to accept delivery of the Amount, where such
failure was not excused by uncontrollable forces (as defined
under Curtailments) or by Seller, Buyer shall be liable to
Seller for all such energy. The liability shall be calculated as
the difference between 1) the PRICE and 2) the revenue (per
megawatt-hour) that Seller receives in selling the capacity and
energy Buyer failed to accept times the total Contract energy not
accepted, to the extent that the calculation resulted in a
positive number. Neither party shall be liable to the other for
any consequential, incidental, punitive, or special damages for
failure to take or receive energy in accordance with the
conditions stated above.
IEP CONTACTS: Primary Contact Secondary Contact
Gaston Mejia Layne Brown
Short Term Trader Director Power Operations
Phone: (801) 568-2129 Phone: (801) 568-2150
GENERAL TERMS: This confirmation letter is provided pursuant to and in
accordance with The Illinova-Southern California Water Company
Enabling Agreement and constitutes part of and is subject to all
of the terms and provisions of such Agreement. Terms used but
not defied herein shall have the meanings ascribed to them in
the Agreement.
BILLING: Billings and payment shall be in accordance with the terms
specified in Section 9 of the WSPP Agreement. Information for
SCWC and IEP are provided below.
Billings shall be mailed to:
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
Attention: Mr. Raymond P. Juels
Payments shall be mailed to: Payments over $50,000 shall
be wired to:
Illinova Energy Partners, Inc. American National Bank
6955 Union Park Center, Suite 300 2000 South Naperville Road
Midvale, UT 84047 Wheaton, IL 60187
Attn: Jennifer Hughey ABA #: 071000770
Account #: 1818-0752
For Illinova Energy Partners
ARTICLE II: DEFAULT AND FINANCIAL RESPONSIBILITY
Should a party have a reasonable basis to believe that the
creditworthiness or financial responsibility of the other Party
has become unsatisfactory at any time during which this
Agreement is in effect, satisfactory security may be required
before further deliveries are made. In the event either Party
shall (i) Make an assignment or any general arrangement for the
benefit of creditors; (ii) file a petition or otherwise
commence, authorize, or
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April 5, 1999
acquiesce in the commencement of a proceeding or cause under any
bankruptcy or similar law for the protection of creditors or
have such petition filed or proceeding commenced against it;
(iii) otherwise become bankrupt or insolvent (however
evidenced); (iv) be unable to pay its debts as they fall due; or
(v) default in its payment or performance of any obligation to
the other Party under this Agreement and fail to give adequate
security, or assurance of, its ability to perform its further
obligation under this Agreement within forty-eight (48) hours of
a reasonable request by the other Party, then the other party
shall have the right, without prior notice, to withhold payment
or suspend deliveries or terminate this Agreement, in addition
to any and all other remedies available hereunder or pursuant to
the law.
If the terms and conditions shown above accurately reflect your understanding
of our agreement, please indicate by signing and returning a facsimile copy of
this Agreement to IEP at (801) 568-2103.
Sincerely,
Illinova Energy Partners Southern California Water Company
/s/ MARK V. ALLEN /s/ JOEL DICKSON
- ---------------------------------- ---------------------------------------
Mark V. Allen Mr. Joel Dickson
Director, Regional Marketing Vice President of Customer & Operations
Support
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[ILLINOVA LETTERHEAD]
VIA FACSIMILE
APRIL 7, 1999 IEP REF# S-BEAR VALLEY - SCWC-DAILY PURCHASING AGREEMENT
Mr. Joel Dickson
Vice President of Customer Service and Operations Support
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
This letter agreement outlines the terms and conditions of a transaction
between the Southern California Water Company, its Bear Valley Electric
Division and Illinova Energy Partners, Inc. (IEP).
BUYER: Southern California Water Company (SCWC)
SELLER: Illinova Energy Partners, Inc.
PRODUCT: Daily Energy Purchasing: the total amount of energy
required to satisfy SCWC load for Bear Valley Electric
during the term of this agreement on a daily, to monthly
forward, basis, less any forward purchase made under
separate confirmation by SCWC with IEP.
TERM: May 1, 1999 through April 30, 2002.
HOURS: Monday through Sunday, Hour Ending (HE) 0100 through Hour
Ending (HE) 2400, Pacific Prevailing Time (PPT), including
NERC Holidays.
AMOUNT:
VARIES 1096 24 VARIES
PRICE: The price for the Product supplied to SCWC will be on a
total pass through basis to purchase from various power
sources including the California Power Exchange. All fees,
charges, including but not limited to ISO ancillary
services, PX fees and losses shall be included in the price.
PERFORMANCE: IEP will be paid monthly based on a Performance Benchmark
Incentive Payment, for energy purchased under this
agreement, on a daily basis as follows: 40% of the daily
savings for taking the positive resultant between [the
product total of {the Power Exchange Clearing Price "Day
Ahead Zonal Price Constrained "LA 4" (as listed on the
calpx.com website), plus the daily purchasing
administrative charge for the California Power Exchange,
plus the applicable ISO Wheeling Access Charges, plus Grid
Management Charges, plus Spin and Non-Spin Charges}
multiplied by hourly load during the period in excess of
any firm energy purchased from IEP under a separate
agreement for the same period] minus IEP's Delivered Cost
at the Victorville-Lugo Midpoint. Such calculations of
performance shall identify all applicable line items when
billed.
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April 9, 1999
POINT OF DELIVERY: Delivered at California PX location take-out points,
including Victorville-Lugo midpoint and Vista Substation.
SCHEDULING: Unless otherwise instructed by SCWC, IEP will schedule
energy based upon historical energy usage for the previous
year's monthly load adjusted daily for current year
representation of common weekend and week day loads. IEP's
telephone numbers for real-time coverage of this agreement
are (801) 568-2151 and 1-800-500-3260.
CURTAILMENTS: Curtailments are only permitted for system emergencies due
to UNCONTROLLABLE FORCES (unanticipated events that prevent
a Party from performing it's obligations at the Delivery
Point to deliver or receive energy, which is not within the
reasonable control and which by the exercise of all
commercial efforts such Party has been unable to overcome or
obtain or cause to be obtained substitute performance
therefore). Curtailments shall not be made for economic
reasons.
DAMAGES: If SELLER fails to deliver the Amount, where such failure
was not excused by uncontrollable forces (as defined under
Curtailments) or by Buyer, Seller shall be liable to Buyer
for all such energy. The liability shall be calculated as
the difference between 1) Buyer's reasonably incurred cost
of replacing the comparable energy Seller failed to deliver
(per megawatt-hour) and 2) the PRICE times the total
Contract energy not delivered, to the extent that the
calculation resulted in a positive number.
If BUYER fails to accept delivery of the Amount, where such
failure was not excused by uncontrollable forces (as
defined under Curtailments) or by Seller, Buyer shall be
liable to Seller for all such energy. The liability shall
be calculated as the difference between 1) the PRICE and 2)
the revenue (per megawatt-hour) that Seller receives in
selling the capacity and energy Buyer failed to accept
times the total Contract energy not accepted, to the extent
that the calculation resulted in a positive number. Neither
party shall be liable to the other for any consequential,
incidental, punitive, or special damages for failure to
take or receive energy in accordance with the conditions
stated above.
IEP CONTACTS: Primary Contact Secondary Contact
Gaston Mejia Layne Brown
Short Term Trader Director Power Operations
Phone: (801) 568-2129 Phone: (801) 568-2150
GENERAL TERMS: This confirmation letter is provided pursuant to and in
accordance with The Illinova-Southern California Water
Company Enabling Agreement and constitutes part of and is
subject to all of the terms and provisions of such
Agreement. Terms used but not defined herein shall have the
meanings ascribed to them in the Agreement.
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April 9, 1999
BILLING: Billings and payment shall be in accordance with the terms specified
in The Illinova-Southern California Water Company Enabling
Agreement. Information for SCWC and IEP are provided below.
Billings shall be mailed to:
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91733
Attention: Mr. Raymond P. Juels
Payments shall be mailed to: Payments over $50,000 shall be
wired to:
Illinova Energy Partners, Inc. American National Bank
6955 Union Park Center, Suite 300 2000 South Naperville Road
Midvale, UT 84047 Wheaton, IL 60187
Attn: Jennifer Hughey ABA#: 071000770
Account#: 1818-752
For Illinova Energy Partners
ARTICLE II: DEFAULT AND FINANCIAL RESPONSIBILITY
Should a party have a reasonable basis to believe that the
creditworthiness or financial responsibility of the other Party has
become unsatisfactory at any time during which this Agreement is in
effect, satisfactory security may be required before further
deliveries are made. In the event either Party shall (i) Make an
assignment or any general arrangement for the benefit of creditors;
(ii) file a petition or otherwise commence, authorize, or acquiesce
in the commencement of a proceeding or cause under any bankruptcy or
similar law for the protection of creditors or have such petition
filed or proceeding commenced against it; (ii) otherwise become
bankrupt or insolvent (however evidenced); (iv) be unable to pay its
debts as they fall due; or (v) default in its payment or performance
of any obligation to the other Party under this agreement and fail
to give adequate security for or assurance of its ability to perform
its further obligation under this agreement within forty-eight (48)
hours of a reasonable request by the other Party, then the other
Party shall have the right, without prior notice, to withhold or
suspend deliveries to Party, then the other Party shall have the
right, without prior notice, to withhold or suspend deliveries or
terminate this Agreement, in addition to any and all other remedies
available the hereunder or pursuant to the law.
If the term and conditions shown above accurately reflect your understanding of
our agreement, please indicate by signing and returning a facsimile copy of this
Agreement to IEP at (801) 568-2103.
Sincerely,
Illinova Energy Partners Southern California Water Company
/s/ MARK V. ALLEN /s/ JOEL DICKSON
- ---------------------------------- ----------------------------------
Mark V. Allen Mr. Joel Dickson
Director, Regional Marketing Vice President of Customer &
Operations Support
18
[ILLINOVA LETTERHEAD]
Mr. Joel Dickson
Vice President of Customer Service and Operations Support
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
RE: SCHEDULING COORDINATION & REAL-TIME SERVICES AGREEMENT -- METERING &
COMMUNICATIONS
Dear Mr. Dickson:
This represents an amendment to the Scheduling Coordination & Real-Time Services
(Agreement) between Illinova Energy Partners, Inc. (IEP) and the Southern
California Water Company for its Division Bear Valley Electric Services
(Customer) dated April 7, 1999.
Pursuant to Section 8 Metering and Communications of the subject agreement, IEP
is to provide Customer with the proposed costs for metering and communications
prior to billing for such services. Accordingly, IEP has had a few visits to
Bear Valley with one of its Meter Service Providers and designed a metering
interrogation scheme that I believe is better than the prior configuration by
our predecessor. In addition, this considers a permanent installation owned by
Customer. The Exhibit A attached provides you with the detail of such
installation, and the total cost for this service is a one-time charge of
$7,200 (billable in the first month in which the equipment was installed. IEP's
monthly charge for metering interrogation is hereby quoted as $35.00 per month.
If the above pricing meets with your approval, please so indicate by signing
this Agreement in the space provided below and return a faxed copy to my
attention at (801) 568-2103.
Sincerely,
/s/ MARK V. ALLEN
- -----------------------
Mark V. Allen
Director, Regional Marketing
California & Desert Southwest
Accepted as of this 13th day of May, 1999, for Southern California Water Company
/s/ JOEL A. DICKSON
- -----------------------
Mr. Joel Dickson
Vice President of Customer & Support Services
19
[ILLINOVA LETTERHEAD]
EXHIBIT A
BEAR VALLEY ELECTRIC SERVICE - METERING
CONVERSION PROPOSAL
DESCRIPTION QTY
DATA STAR, TYPE D-102,32K, 4-CHANNEL, SOLID STATE PULSE RECORDER - WITH 2
TELEPHONE MODEM
PULSE SPLITTING RELAY - MERCURY WETTED WITH 3 RELAYS INSTALLED - 1 IN, 4
2 OUT
FUSE BLOCKS WITH DIRECT MOUNTING BASE AND TUBULAR SCREWS, SIMILAR OR 2
EQUAL TO BUCHANAN CAT. #342 - INCLUDES TYPE 'KTK' OR 'KLM' FUSES
FASTENERS - CONNECTORS - TERMINALS - COUPLINGS 1
PROVIDE ALL LABOR NECESSARY TO INSTALL A COMPLETED METERING INSTALLATION 32
VEHICLE MILES TO AND FROM PROJECT 400
TECHNICIANS TRAVEL TIME FROM THEIR BASE TO THE JOB SITE AND RETURN 8
COSTS INCURRED FOR PERFORMING A SITE INSPECTION TO DETERMINE COMPONENTS 4
NECESSARY TO COMPLETE PROJECT
PROJECT ENGINEERING AND COMPONENT ACQUISITION 3
TOTAL $7,200.00
20
[DIAGRAM OF SUB-METERING SPECIFICATION FOR "GOLDHILL" SUBSTATION]
21
[DIAGRAM OF SUB-METERING SPECIFICATION FOR "HARNISH" SUBSTATION]
22
[ILLINOVA LETTERHEAD]
Mr. Joel Dickson
Vice President of Customer Service and Operations Support
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
RE: SCHEDULING COORDINATION & REAL-TIME SERVICES AGREEMENT
Dear Mr. Dickson:
This agreement for Scheduling Coordination & Real-Time Services (Agreement)
sets forth the rates, terms, and conditions under which Illinova Energy
Partners, Inc. (Illinova) agrees to provide twenty four (24) hour real-time
services and Schedule Coordination to Southern California Water Company for its
Division Bear Valley Electric Services (Customer). Illinova and Customer are
hereinafter collectively referred to as "Parties" or individually as "Party",
and hereby agree as follows:
1. TERM AND EFFECTIVE DATE
This Agreement shall become effective on Hour Ending 0100 (Pacific Prevailing
Time) May 1, 1999, and shall remain in force and effect until April 30, 2002.
2. SERVICES TO BE PROVIDED BY ILLINOVA
Illinova will provide the following hourly services for Customer:
Illinova shall act as Scheduling Coordinator, in accordance with the
requirements of the California Independent System Operator ("ISO") tariff,
for Customer's loads at associated take-out points.
Develop Customer's pre-schedules based on load forecasts or load profiles
provided by Customer, or Illinova under a separate Daily Purchasing
Agreement dated April 7, 1999, or any applicable Utility Distribution
Company ("UDC").
Coordinate pre-schedules with any applicable UDC, Independent System
Operator ("ISO"), Power Exchange ("PX") and/or other suppliers.
Maintain Customer's schedules every hour. Each transaction will describe
the delivery of power from a supplying party's control area (the
generator), through all intermediate Purchase Sale Entities, to a
receiving party's control area (load). A full path must be included
detailing all entities that take title to the energy and all transmission
paths.
23
CONFIDENTIAL
Monitor schedules in effect during the term of the Agreement twenty-four
(24) hours per day.
Confirm scheduled transactions as required. It is anticipated that
schedules will be confirmed on a pre-scheduled basis within twenty-four
(24) hours prior to the transaction. Illinova shall confirm schedule
start and stop times with each entity Customer is purchasing from and
delivering to.
If conditions require a modification to a pre-scheduled transaction,
Illinova will, as directed, make sales and purchase decisions for
Customer on a best effort basis to minimize losses, scheduling
inconsistencies, and imbalances. In the event that such a service is
requested Illinova will not be held liable for any losses that may be
incurred due to its marketing transactions.
Provide Customer an hourly accounting of each day's transactions,
including any changes to pre-scheduled transactions.
Use reasonable efforts to resolve any discrepancies with other parties.
3. SERVICES PROVIDED BY CUSTOMER.
Customer shall furnish Illinova, in a timely manner, with all
information necessary for Illinova to carry out its responsibilities as
Scheduling Coordinator in accordance with the ISO tariff, and shall
carry out all directives from Illinova in performance of its role as
Scheduling Coordinator in accordance with the ISO tariff.
If required by Illinova, Customer shall acquire and maintain, throughout
the term of this agreement, a form and amount of credit protection
acceptable to Illinova, not to exceed $3,000,000, for the performance of
this Agreement. This will include any additional charges by Illinova to
maintain credit for Customer schedules with the ISO.
By 3:00 PM (Pacific Time) on every normal work day observed by both
parties, Customer, or Illinova as Customer representative under separate
Daily Energy Purchasing Agreement dated April 7, 1999, shall provide
Illinova with an hourly listing of all changes to standard pre-scheduled
transactions for the following day or days.
Provide Illinova with a twenty-four (24) hour emergency contact and
pager number.
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
4. CHARGES
The charge for the services described above will be billed according to the
following:
4.1 Illinova Charges
1. Initial setup charge (one time): $7,000.00
Due and payable upon execution of this Agreement
2. Monthly Base Fee: $2,500.00
3. Customer shall pay a Monthly Variable Fee equal to.
Monthly Variable Fee: $0.35/MWH
4. Monthly Administration and Billing Charge: $500.00
5. Illinova Re-marketing fee: $0.15/MWH
4.2 Imbalance Fees, Penalties, and Re-marketing
If Customer's actual energy usage exceeds the forecasted amount, Customer
shall receive the ex-post price for this excess energy, and if such
situation is expected to exist for any length of time, and Illinova can
re-market this excess energy to other Scheduling Coordinators or
counter-parties, Illinova will inform Customer of such an opportunity, and
upon Customer concurrence, Illinova will re-market said excess. Customer
will pay Illinova, the Energy Re-Marketing Fee listed above, for energy
re-marketed. Customer shall also be responsible for any additional
penalties or imbalance charges imposed by the ISO for imbalances due to
Customer's energy usage deviating from the actual monthly energy amount
defined by the forecast.
4.3 Pass-Through Costs
Unless specified under a separate power transaction between Customer and
IEP, Customer shall be responsible for, and shall pay Illinova or any other
provider of the service as applicable, for all charges imposed by the ISO,
Automated Power Exchange (APX) and the California Power Exchange ("PX") in
connection with the service provided under this Agreement, including but
not limited to, charges for transmission (including Grid Management
Charges, Grid Operations Charges, Ancillary Services Charges, Imbalance
Energy Charges, Usage Charges, Wheeling Access Charges, Voltage Support and
Black Start Charges, and Reliability Must-Run Charges, Losses, or Taxes
imposed by the ISO), distribution, ancillary services (including costs for
ancillary services purchased by Illinova from third parties for purpose of
this Agreement), access charges, PX administration charges, whether such
charges are billed directly to Customer or are billed to Illinova;
provided, that Illinova shall be responsible for payment to the ISO of any
imbalance charges as imposed by the ISO as a result of Illinova's failure
to deliver energy to the ISO provided to Illinova by Customer. Any such
imbalance charge for which Illinova is responsible shall be based on the
difference between (i) the total energy scheduled by
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
Illinova to, and received by, the ISO and (ii) Illinova's total customer
load within the Zone or Take-Out Points, as defined in the ISO tariff,
where such imbalances occur. Where charges are billed to Illinova by the
ISO, or PX in respect of service provided to Customer under this Agreement
and to other scheduling clients, Illinova shall make appropriate
allocations of such billed amounts to all scheduling clients inclusive of
Customer.
4.4 Losses
Illinova shall bill Customer for energy losses provided in accordance with
delivery of Customer energy under this Agreement based on the hourly
registrations of energy on the meters installed at the Customer Direct
Access Account interconnection points, increased by the corresponding
percentage points to account for losses between the interconnection point
or points at which Illinova delivers or schedules Customer supplied energy
deliveries to the ISO Controlled Grid and the Customer interconnection
points. If the amount of energy scheduled or delivered by Illinova to the
interconnection point or points on the ISO Controlled Grid does not equal
the amount of energy registered on the meters at the Customer
interconnection points plus the appropriate loss factor in an hour, the
variance shall be reconciled and billed in accordance with Section 7 of
this Agreement.
7. PAYMENT
Illinova will submit its invoices to Customer on a monthly basis. All billings
to Customer will be sent to:
Mr. Raymond P. Juels
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
or to such address as Customer may specify by written notice given as provided
herein.
IEP and SCWC will develop an acceptable invoicing format and include quarterly
fuel mix for supply, as can be determined with suppliers. Invoices should
include line items to clearly identify charges herein.
Invoices submitted by Illinova to Customer shall be due and payable 20 days
after the date of the invoice. Customer agrees to pay interest at the rate of
1.5% per month, or the maximum rate as permitted by law, on any invoiced
amounts which are not paid on or before the due date, until the date of payment.
Payments to Illinova shall be Payments over $50,00 shall be
mailed to: wired to:
Illinova Energy Partners, Inc. American National Bank
6955 Union Park Center, Suite 300 2000 South Naperville Road
Midvale, UT 84047 Wheaton, IL 60187
Attn: Jennifer Hughey ABA #: 071000770
Account #: 1818-0752
For Illinova Energy Partners account
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
Illinova hereby represents that its bills will be based upon some estimated
amounts. For example, ISO charges will be billed to Scheduling Coordinators,
such as Illinova, on a quarterly basis. Accordingly, Illinova shall bill, or
credit, for any adjustments to past billings for estimated amounts being
reconciled with actual amounts.
All correspondence with regard to payment shall be made to the same address.
8. METERING & COMMUNICATION
Customer shall be responsible for the cost of establishing and maintaining
communication equipment necessary to conduct the scheduling coordination
services for energy management pursuant to this agreement. Such costs shall
include meters, monthly communication & maintenance costs and other necessary
equipment. Such costs shall be discussed and agreed to before they are actually
incurred.
9. AUDIT
Either Party, at its own expense, shall have the right, at all reasonable
times, to review and audit the books, records, documents of the other Party,
directly pertaining to the billing and power delivery data required to
administer this Agreement. The foregoing shall not be construed to permit
either Party to conduct a general audit of the other Party's records.
Information obtained by either Party's representatives in examining the other
Party's applicable records to verify such billings and power delivery data
shall not be disclosed to third parties without prior written consent of the
audited Party, or unless in response to compulsory judicial or regulatory
processes and after giving the other Party as much advance written notice as
possible, with such time not to be less than (15) days. The right to audit
shall extend for a period of one (1) year following the date of each payment.
It will be incumbent upon the Parties to retain all necessary records and
documentation during this audit period.
10. FORCE MAJEURE
Neither Party shall be liable for any delay or failure in performance of any
part of this Agreement (other than obligations to pay money) from any cause
beyond its reasonable control, including but not limited to flood, fire,
lightning, epidemic, quarantine restriction, war, sabotage, act of a public
enemy whether foreign or domestic, earthquake, insurrection, riot, civil
disturbance, strike, work stoppage caused by jurisdictional or similar
disputes, restraint by court order or public authority, action or non-action
by or inability to obtain necessary authorization or approval from any
governmental authority, or failure or inability of the ISO or the UDC to accept
energy from Illinova or to deliver energy to Customer in amounts received from
Illinova, or any combination of these causes, whether affecting the Party or
the Party's suppliers, which by the exercise of due diligence and foresight
such Party could not reasonably have been expected to avoid and which by the
exercise of due diligence the Party has been unable to overcome. The Party
claiming a force majeure condition shall give the other Party such notice of
the condition as is reasonable under the circumstances. Upon notice of the
force majeure condition being provided, the obligations of the Party invoking
the force majeure, to the extent they are affected by the force majeure
condition, shall be suspended during the continuation of such condition and
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
shall, so far as is possible, be remedied with all reasonable dispatch.
11. INDEMNIFICATION
11.1 To the fullest extent permitted by law, and subject to the limitations
set forth in Section 21, "Limitation of Liability to Amount of
Direct Damages", of this Agreement, each Party (the "Indemnifying Party") shall
indemnify and hold harmless the other Party, its parent company or companies
and affiliates, and their shareholders, officers, directors, employees, agents,
servants, and assigns (collectively, the "Indemnified Party"), and at the
Indemnified Party's option, the Indemnifying Party shall defend the Indemnified
Party from and against any and all claims and liabilities for losses, expenses,
damage to property, injury to or death of any person, including, but not
limited to, the Indemnified Party's employees and its parent company's and
affiliates' employees, subcontractors and subcontractors' employees, or any
other liability incurred by the Indemnified Party, which shall include
reasonable attorney fees, caused wholly or in part by any negligent, grossly
negligent or willful act or omission by the Indemnifying Party, its officers,
directors, employees, agents or assigns arising out of this Agreement, except
to the extent such claim, liability, loss, expense, damage to property, injury
or death is caused by any negligent, grossly negligent or willful act or
omission of the Indemnified Party.
11.2 If any claim covered by Section 11.1 is brought against the Indemnified
Party, then the Indemnifying Party shall be entitled to participate in, and
unless in the opinion of counsel for the Indemnified Party a conflict of
interest between the Parties may exist with respect to such claim, assume the
defense of such claim, with counsel reasonably acceptable to the Indemnified
Party. Even if the Indemnifying Party assumes the defense of the Indemnified
Party pursuant to this subsection b, the Indemnified Party, at its sole option,
may participate in the defense, at its own expense, with counsel of its own
choice without relieving the Indemnifying Party of any of its obligations
hereunder.
11.3 The Indemnifying Party's obligation to indemnify under this Section 10
shall survive termination of this Agreement, and shall not be limited in any
way by any limitation on the amount or type of damages, compensation or
benefits payable by or for the Indemnifying Party under any statutory scheme,
including, without limitation, under any worker's compensation acts, disability
benefit acts or other employee benefit acts.
12. GOVERNING LAW
This Agreement shall be governed by, and interpreted and construed in
accordance with, the laws of the State of California, and shall exclude any
choice of law rules that direct the application of the laws of another
jurisdiction, irrespective of the place or places of execution or of the order
in which signatures of the parties are affixed or of the place or places of
performance; provided, that any provision of this Agreement that is subject to
the jurisdiction of the Federal Energy Regulatory Commission ("FERC") shall be
governed by, and interpreted and construed in
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
accordance with, the regulations of the FERC and such other laws of the United
States as are applicable to that provision.
13. AMENDMENT
This Agreement may be modified only upon mutual written agreement of the
Parties.
14. WAIVER
Any waiver at any time by either Party with respect to any of its rights under
this Agreement or the failure of a Party to insist on the performance by the
other Party of an obligation under this Agreement shall not be deemed an
amendment or modification of this Agreement and shall not be deemed a waiver of
such right, or acquiescence to non-performance of such obligation, during the
remainder of the term of this Agreement.
15. PROPRIETARY INFORMATION
Illinova considers pricing information contained in this Agreement to be
proprietary and confidential. Disclosure of any pricing information contained
in this Agreement shall require the prior written consent of Illinova. Customer
considers all information provided to Illinova under Section 3 of this
Agreement and all information that Illinova obtains in carrying out the services
described in Section 2 of this Agreement to be proprietary and confidential.
Disclosure or use of any of the aforementioned information contained in this
Agreement other than to carry out the services outlined in Section 2 of this
Agreement shall require the prior written consent of Customer.
16. ASSIGNMENT AND DELEGATION
16.1 Neither Party shall assign any of its rights or obligations under
this Agreement except with the prior written consent of the other
Party, which consent shall not be unreasonably withheld or delayed.
No assignment of any right or obligation under this Agreement shall
relieve the assigning Party of any of its obligations under this
Agreement until such obligations have been assumed in writing by the
assignee. When duly assigned in accordance with the preceding two
sentences, any obligation so assigned shall be binding upon the
assignees, and the assignor shall be relieved of its rights and
obligations that have been duly assigned. Any assignment in violation
of this Section 16.1 shall be void.
16.2 Notwithstanding the provisions of subsection 16.1, either Party may
delegate any of its duties under this Agreement to an agent or
subcontractor, provided that the delegating Party shall remain fully
responsible for performance of any delegated duties, shall serve as
the point of contact between the delegatee and the other Party, and
shall provide the other Party with 30 days prior written notice of
any such delegation, which notice shall contain such information
about the delegatee as the other Party shall reasonably require.
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
17. AUTHORITY TO EXECUTE AGREEMENT
Each Party acknowledges that it has read this Agreement and that the Party
fully understands its rights and obligations under this Agreement. Each Party
further acknowledges that it has had an opportunity to consult with an attorney
of its own choosing to explain the terms of this Agreement and the consequences
of signing it.
Each Party represents and warrants (i) that it has the full power and authority
to execute and deliver this Agreement and to perform its terms, (ii) that
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate or other action by such Party, and do not conflict
with the Party's articles of incorporation or by-laws, or cause a default under
any contract or other agreement to which such Party is subject, and (iii) that
this Agreement constitutes such Party's legal, valid and binding obligation and
is enforceable against such Party in accordance with its terms. Each person
executing this Agreement for a Party represents and warrants that he or she has
the authority to bind the Party on whose behalf he or she is executing this
Agreement.
18. CONSTRUCTION SHALL NOT BE FOR OR AGAINST DRAFTER
No provision of this Agreement shall be construed or interpreted for or against
any Party because that Party drafted or caused its legal representative to
draft the provision.
19. DISPUTE RESOLUTION PROCEDURES
Any dispute between the Parties concerning the provisions, interpretation or
implementation of this Agreement which remains unresolved for a period of six
months shall, upon written notice given by one Party to the other Party, be
forwarded to Customer's Chief Financial Officer and to Illinova's Vice
President of the Western Region ("Executive" or "Executives"), who shall meet
within 30 days following the date of the notice, or at such other time as
agreed upon by the Executives, to discuss and attempt to resolve the dispute.
Any resolution agreed upon by the Executives shall be binding upon the Parties.
A resolution reached by the Executives shall not be effective until set forth
in a writing signed by both Executives. If the Executives cannot resolve the
dispute within 30 days following their initial meeting either Party may pursue
any remedy available to the Party at law, in equity or under this Agreement to
resolve the dispute. If the title of either Executive position referred to in
this Section 19 is eliminated or changed, or if this Agreement is assigned
pursuant to Section 16, the Party subject to the change, or the assignee of
such Party, shall substitute a comparable executive for the purpose of this
Section 19 and shall promptly notify the other Party in writing.
Each Party shall bear its own attorney fees and other costs incurred in
connection with any dispute, except as otherwise (i) agreed by the Parties in
the resolution of the dispute, (ii) ordered
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
by a court or administrative agency of competent jurisdiction, or (iii)
determined by the arbitrator or other neutral in any alternative dispute
resolution process used by the Parties, in accordance with the rules and
procedures adopted and agreed to by the Parties for purposes of that process.
20. ENTIRE AGREEMENT
This Agreement, including all attachments hereto and agreements contemplated
herein, constitutes the entire agreement and understanding between the Parties
as to the subject matter of this Agreement, and merges and supersedes all prior
oral or written agreements, understandings, commitments, representations and
discussions between the Parties. The Agreement may be amended, modified or
supplemented only in accordance with Section 13 or Section 16 of this Agreement.
21. LIMITATION OF LIABILITY TO AMOUNT OF DIRECT DAMAGES
Each Party's liability to the other Party for any loss, cost, claim, injury,
liability or expense, including any reasonable attorney fees to which the other
Party is entitled, relating to or arising from an act or omission in the Party's
performance of this Agreement, shall be limited to the amount of direct damage
actually incurred. In no event shall either Party be liable to the other Party
for any indirect, special, consequential or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability.
22. LIMITATION ON TIME TO MAKE CLAIMS
With the exception of claims for indemnity under Section 11, "Indemnification",
of this Agreement, no claims may be made under this Agreement, or submitted to
dispute resolution pursuant to Section 19, "Dispute Resolution Procedures", of
this Agreement, more than three years after the date the claim accrued. The
Parties agree that failure to make any claim falling within the scope of this
Section 22 within three years shall bar any cause of action. Provided, however,
that claims for indemnity under Section 11, "Indemnification", of this Agreement
shall not be limited by the three year limitation of this Section, but shall be
governed by the applicable statute of limitations.
23. NOTICES AND DEMANDS
Unless another means of notice is expressly provided for in another Section of
this Agreement, all notices and demands given or made by a Party under this
Agreement shall be sent by the sending Party by facsimile with a copy sent, by
United States Mail, to the designated recipient of the receiving Party at the
addresses set forth below.
to SCWC:
Southern California Water Company
630 E. Foothill Blvd.
San Dimas, CA 91773
31
SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
Attention: Mr. Raymond P. Juels
If to Illinova:
Illinova Power Marketing, Inc.
Attention: Jennifer Hughey, Controller
Union Park Center, Suite 300
Midvale, Utah 84047
Fax No.: (801) 568-2104
A Party may, by notice to the other Party provided in accordance with this
Section, change the name of designated recipient, address, and facsimile number
to which notices and demands shall thereafter be sent. Any notice provided
pursuant to this Section shall be effective upon confirmation of receipt of the
sending party's facsimile, if between the hours of 8:00 A.M. and 4:00 P.M.
Pacific Time, and at 8:00 A.M. Pacific Time on the next business day if at any
other time.
24. REMEDIES CUMULATIVE
Except as expressly provided otherwise in this Agreement, all remedies in this
Agreement, including the right of termination, are cumulative, and use of any
remedy shall not preclude any other remedy in this Agreement.
25. SECTION HEADINGS
The headings placed at the start of each Section of this Agreement are solely
for the convenience of reference of the Parties, are not and shall not be deemed
to be a part of this Agreement, shall in no way define, modify, or restrict any
of the terms or provisions of this Agreement, and shall not be used in any
manner in the interpretation or construction of this Agreement.
26. TAXES
Unless expressly provided otherwise in the Section or Sections of this Agreement
establishing charges, the charge or charges specified in this Agreement for
services and products provided hereunder do not include any amounts in respect
of any State or local taxes that are assessed, imposed or owing as a function of
the revenues, billings, purchase price, deliveries or usage under this
Agreement. Illinova shall add the amount of any such taxes that are applicable
to services or products for which Illinova is rendering an invoice to Customer
to the amount of the billing stated on such invoice, with such amount to be
calculated at the applicable rate or rates of tax. Customer shall be responsible
for payment of any such taxes, and for the filing of returns, with respect to
any tax not added to Customer's invoice by Illinova. Customer shall also be
responsible to pay any penalties, interest or other charges resulting from
Customer's failure to timely pay any such tax, or resulting from Illinova's
failure to timely pay any such tax due to Customer's failure to timely provide
Illinova with information necessary to determine or compute such tax or file a
return.
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SCWC/Illinova Scheduling Coordination Contract CONFIDENTIAL
27. THIRD-PARTY BENEFICIARIES
The provisions of this Agreement are for the benefit of the Parties and not for
any other person or third party beneficiary. The provisions of this Agreement
shall not impart rights enforceable by any person, firm or organization other
than a Party, or a successor or assignee of a Party, to this Agreement.
28. SEVERABILITY
Should any provision of this Agreement for any reason be declared invalid or
unenforceable by final and applicable order of any court or regulatory body
having jurisdiction, such decision shall not affect the validity of the
remaining portions, and the remaining portions shall remain in force and effect
as if this Agreement had been executed without the invalid portion. This
Agreement is subject to review by the California Public Utilities Commission
"CPUC". The Agreement may be terminated if disapproved by the CPUC: however,
SCWC shall be liable for any economic damages to IEP with respect to any power
transactions made or service cost incurred under this Agreement with IEP.
29. TIME OF ESSENCE
The Parties agree that time is of the essence for all portions of this
Agreement.
If the above accurately reflects your understanding of the agreement reached by
representatives of Illinova and Customer, please so indicate by signing both
originals of this Agreement in the space provided below and return one fully
executed original to me.
Sincerely,
/s/ MARK V. ALLEN
- -----------------------
Mark V. Allen
Director, Regional Marketing
California & Desert Southwest
Accepted as of this 16th day of April, 1999, for Southern California Water
Company
/s/ JOEL DICKSON
- -----------------------
Mr. Joel Dickson
Vice President of Customer & Support Services
Page 11