WHOLESALE POWER CONTRACT
between
PSEG ENERGY RESOURCES & TRADE LLC
and
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
TABLE OF CONTENTS
Section Title Page
------------- ----
1.0 Definitions.........................................................1
2.0 Commitments and Availability........................................4
3.0 Point of Delivery...................................................4
4.0 Scheduling .........................................................5
5.0 Scheduling Coordination Services....................................5
6.0 Authority to Act as Agent...........................................6
7.0 Billing and Payment ...............................................7
8.0 Price...............................................................8
9.0 Events of Default...................................................9
10.0 Interruptions and Curtailments.....................................10
11.0 Indemnification....................................................10
12.0 Limitation of Liability............................................10
13.0 Force Majeure......................................................10
14.0 Term ..............................................................11
15.0 Miscellaneous......................................................11
WHOLESALE POWER CONTRACT
THIS WHOLESALE POWER CONTRACT ("Agreement"), made and entered into as of
this day of, 1999 by and between PSEG Energy Resources & Trade LLC, a Delaware
limited liability company, herein referred to as "ERT", and Public Service
Electric and Gas Company, a New Jersey Corporation, herein referred to as
"PSE&G".
WITNESSETH
WHEREAS, on April 21, 1999 the New Jersey Board of Public Utilities
("NJBPU") issued an order summarizing the terms of a final order to be issued
("NJBPU Order") requiring PSE&G to transfer all of its nuclear and fossil
electric generating assets to one or more separate affiliated corporate
entities;
WHEREAS, the NJBPU Order directs PSE&G to supply Basic Generation Service
("BGS") for a period of at least three years to those retail customers served
from its system that choose not to purchase their power supply from alternative
competitive suppliers;
WHEREAS, the NJBPU Order requires that, in order to ensure the reliability
of supply for BGS provided by PSE&G, to remove the risk of price volatility from
the regulated utility in providing such service, and to further ensure that
PSE&G can meet its obligations under its Off-Tariff Rate Agreements, PSE&G shall
enter into a full requirements contract with an affiliate for energy, capacity,
losses and ancillary services needed by PSE&G for such specified retail load
during the time period that PSE&G is acting as the BGS supplier in its service
territory,
WHEREAS, ERT and PSE&G are entering into this Agreement for the purpose of
establishing the terms and conditions under which ERT will supply such full
requirements service to PSE&G for energy, capacity, losses and ancillary
services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, the Parties hereto agree as follows:
1.0 DEFINITIONS
For all purposes of this Agreement the following terms as used in this
Agreement shall have the following meanings. Except where the context otherwise
requires, definitions and terms expressed in the singular will include the
plural and vice versa.
"Adjustment Interest Rate" means the prime interest rate for currency as
published from time to time under "Money Rates" by The Wall Street Journal, or
its successor, as of the payment due date and/or default date, plus 2%, but in
no event shall the Adjustment Interest Rate exceed the maximum interest rate
permitted by law.
"Aggregate Retail Load" means the BGS and Off-Tariff Rate Agreement retail
load of PSE&G during the Delivery Term.
"Agreement" means this Wholesale Power Contract, including attachments,
and any amendments hereto entered into by PSE&G and ERT.
"Ancillary Services" means one or more of those services that are defined
as ancillary services under the PJM OATT or under the applicable open access
transmission tariff of another transmission service provider pursuant to which
ERT is or may be supplying such services.
"BGS" means the retail electric generation service provided by PSE&G to
its customers in New Jersey in accordance with the New Jersey Electric Discount
and Energy Competition Act of 1999, the BPU Order and PSE&Gs BGS tariffs on file
with the BPU;
"Capacity" means the capacity reserves that ERT agrees to sell and PSE&G
agrees to purchase pursuant to this Agreement in order to satisfy the
requirements for capacity pursuant to the PJM Reliability Assurance Agreement
during the Delivery Term.
"Commission" means the Federal Energy Regulatory Commission or any
successor federal agency having regulatory jurisdiction over the Agreement.
"Energy" means the electric energy that ERT agrees to sell and PSE&G
agrees to purchase pursuant to this Agreement to serve the Aggregate Retail Load
during the Delivery Term.
"ERT" means PSEG Energy Resources & Trade LLC, a subsidiary of Public
Service Enterprise Group Incorporated, and a limited liability company organized
under the laws of the State of Delaware, its successors or assigns.
"Delivery Term" means the period commencing on the latest of (a) October
1, 1999, (b) the date on which all acceptances and approvals required for this
Agreement to become effective have been obtained, or (c) the date this Agreement
is executed by the Parties at closing, and ending on July 31, 2002, during which
ERT will be obligated to sell and PSE&G will be obligated to purchase Power,
losses and Ancillary Services for PSE&G's Aggregate Retail Load.
"Due Diligence" means the exercise of good faith efforts to perform a
required act on a timely basis and in accordance with Prudent Utility Practice,
using the technical and manpower resources reasonably available.
"NJBPU" means the New Jersey Board of Public Utilities.
"NJBPU Order" means the April 21, 1999 Order issued by the NJBPU ordering,
among other things, PSE&G to transfer all electric generating assets to an
affiliate(s) and to enter into a full requirements agreement with an affiliate
for energy, capacity, Ancillary Services, and losses for PSE&G's BGS customers
and Off-Tariff Rate Agreement Customers;
"Off-Tariff Rate Amendments" Those agreements implemented by the NJBPU
prior to the
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execution of this Agreement whereby PSE&G provides electric service to specified
customers. The list of such agreements is attached hereto as Attachment 1.
"Parties" means ERT and PSE&G or the assignee or successor of rights and
obligations to this Agreement. Party means one of the Parties.
"PJM" means PJM Interconnection, LLC, the independent system operator for
the PJM control area organized and operating pursuant to the PJM Operating
Agreement.
"PJM Operating Agreement " means the Amended and Restated Operating
Agreement of PJM Interconnection, LLC, dated June 2, 1997 and effective January
1, 1998, as such agreement may be amended from time to time.
"PJM OATT" means the PJM Open Access Transmission Tariff administered by
PJM, as such Tariff may be amended from time to time.
"Point of Delivery" means a point on the electric transmission system,
where Power is to be made available to PSE&G under this Agreement. The Point of
Delivery shall be the PSE&G Zone within PJM.
"Power" means Capacity and Energy.
"Physically Firm" means that (1) Capacity to meet the Aggregate Retail
Load shall be provided throughout the Delivery Term and (2) that either Party
shall be relieved of its obligations to deliver or receive Energy (but not of
its obligation to make payment then due and becoming due with respect to Energy
delivered) only to the extent that, and for the period during which, performance
is prevented by Force Majeure.
"Prudent Utility Practice" means any of the practices, methods, and acts
required or approved by PJM acting pursuant to the PJM OATT or PJM Operating
Agreement, or 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. Prudent Utility
Practice is not intended to be limited to the optimum practice, method, or act,
but rather to be a spectrum of acceptable practices, methods, or acts.
"Relevant Control Area" means an electric power system or combination of
electric power systems to which a common automatic generation control scheme is
applied in order to:
(i) match, at all times, the power output of the generators within
the electric power system(s) and Capacity and/or Energy purchased from
entities outside the electric power system(s), with the load within the
electric power system(s);
(ii) maintain, within the limits in accordance with Prudent Utility
Practice, scheduled interchange with other relevant control areas;
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(iii) maintain the frequency of the electric power system(s) within
reasonable limits in accordance with Prudent Utility Practice; and
(iv) provide sufficient generating capacity to maintain operating
reserves in accordance with Prudent Utility Practice.
"Scheduling Coordination Services " means those services other than Power,
losses, and Ancillary Services that ERT provides under this Agreement.
Scheduling Coordination Services include forecasting Aggregate Retail Load, load
following, load scheduling, load balancing, tracking the installed capacity
obligations for Aggregate Retail Load within the Relevant Control Area, and
acting as PSE&G's agent for the purposes of scheduling transmission service
using PSE&G's PJM network Transmission Service or other Transmission Service and
managing PSE&G's fixed transmission rights and providing other notices,
elections and reports as may be necessary to comply with other Relevant Control
Area requirements. Scheduling Coordination Services shall not include any
obligation to provide or arrange for retail distribution services after the
Point of Delivery.
"Transmission Service" means the delivery of Power and Ancillary Services
pursuant to the PJM OATT or pursuant to another open access transmission tariff
or transmission agreement on file with the Commission.
2.0 COMMITMENTS AND AVAILABILITY
(a) ERT agrees to provide and PSE&G agrees to receive Power, Ancillary
Services and losses to meet the full requirements of PSE&Gs
Aggregate Retail Load during the Delivery Term.
(b) ERT agrees to provide Scheduling Coordination Services, in
accordance with the terms and conditions of this Agreement, to PSE&G
for PSE&G's Aggregate Retail Load during the Delivery Term.
(c) Energy will be delivered and provided in the form of three-phase,
sixty (60) Hertz, alternating current, with reasonable % variations
of frequency and voltage allowed consistent with Prudent Utility
Practices.
(d) ERT shall have the sole discretion to select Power supply resources
to provide sufficient quantities of Capacity, Energy, losses and
Ancillary Services to PSE&G to meet Aggregate Retail Load; provided,
however, that ERT shall comply with all federal and state laws and
regulations that require PSE&G or ERT to have a specified
environmental mix of power or to disclose the sources of Power used
to supply Capacity and Energy during the Delivery Term.
3.0 POINT OF DELIVERY
3.1 Title to Capacity, Energy, losses and Ancillary Services made
available in accordance with this Agreement shall pass to PSE&G at the Points of
Delivery.
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3.2 ERT shall be responsible for arranging, supplying and paying for any
and all transformer, transmission, subtransmission, and/or distribution losses
with respect to transformation and delivery of Capacity, Energy and Ancillary
Services.
3.3 Power shall be delivered to the Points of Delivery using PSE&G's
network Transmission Service acquired under the PJM OATT or other Transmission
Service acquired to serve the Aggregate Retail Load. It is anticipated that PJM
will issue one ▇▇▇▇ for network Transmission Service during the Delivery Term.
To the extent that one PJM transmission ▇▇▇▇ is issued, the Parties agree that
ERT will be responsible for payment and receipt of credits set forth on that
portion of the PJM transmission ▇▇▇▇ associated with the PJM accounts listed in
Attachment 2. PSE&G shall be responsible for payment of the remaining portion of
the PJM ▇▇▇▇ associated with network Transmission Service for the Aggregate
Retail Load.
3.4 Except as provided in 3.2, PSE&G is responsible for arranging and
paying for all distribution services at and from the Point of Delivery.
4.0 SCHEDULING
4.1 ERT shall schedule with PJM all Capacity, Energy and Ancillary
Services sold under this Agreement.
5.0 SCHEDULING COORDINATION SERVICES
5.1 General.
ERT shall be PSE&G's exclusive provider of Power, losses and Ancillary
Services for PSE&G's Aggregate Retail Load during the Delivery Term, and PSE&G
agrees that it will not generate, purchase or otherwise obtain Power, losses or
Ancillary Services for use by its Aggregate Retail Load during the Delivery Term
unless otherwise agreed to in writing by ERT.
5.2 Responsibilities of PSE&G.
PSE&G will be responsible during the Delivery Term for:
(a) providing ERT with timely and accurate information regarding the BGS
and Off-Tariff Rate Agreement retail load being served under this
Agreement in order to permit ERT to properly forecast and schedule
for PSE&G's Aggregate Retail Load and ▇▇▇▇ PSE&G. The information
provided to ERT by PSE&G will be of a comparable type and in a
comparable format to the information PSE&G would provide to any
licensed retail supplier serving load in PSE&G's distribution
territory. PSE&G shall provide to ERT the details of its Aggregate
Retail Load to the degree necessary for ERT to properly and timely
forecast, schedule and ▇▇▇▇ PSE&G for such load. In addition, PSE&G
shall provide timely notice to ERT of any changes, either additions
or deletions (including loss of or addition of customers and any
anticipated change in customer usage or usage patterns), to the
retail load being served by PSE&G;
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(b) making and maintaining all arrangements, including necessary
contractual arrangements, with PJM to ensure that adequate network
Transmission Service has been obtained to serve PSE&G's Aggregate
Retail Load during the Delivery Term;
(c) all retail sales of Power to its customers, including but not
limited to distribution of Power to retail customers and all billing
and collection services associated with providing service to retail
customers;
(d) coordinating all forecasting, scheduling and billing with ERT; and
(e) providing ERT all authorizations or other demonstrations of
authority required for ERT to gain access to PSE&G's PJM account for
the provision of Scheduling Coordination Services, to the extent
permitted by PJM rules.
(f) Paying any load imbalance charges, penalties, costs associated with
acquiring or selling supplies due to a shortage or excess of
Capacity or Energy, or any other costs attributable to a failure by
PSE&G to fulfill its obligations hereunder.
5.3 Responsibilities of ERT.
ERT shall be responsible during the Delivery Term for:
(a) preparation of load forecasts for the Aggregate Retail Load based
upon the information supplied by PSE&G;
(b) making available sufficient quantities of Power and Ancillary
Services to meet the needs of the forecasted Aggregate Retail Load;
(c) arranging for transmission using PSE&G's network Transmission
Service or other transmission Service and Ancillary Services
necessary to deliver sufficient quantities of Power to the Point of
Delivery;
(d) scheduling and coordinating with PJM the delivery of Energy to the
Points of Delivery; and (e) complying with all environmental disclosure
requirements as described in Section 2(d).
5.4 No Retail Service
By the provision of Scheduling Coordination Services, ERT in no respect
agrees to sell energy or capacity directly to any retail customers or engage in
any other retail functions;
6.0 AUTHORITY TO ACT AS AGENT
6.1 In accordance with the NJBPU Order, PSE&G hereby transfers to ERT and
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authorizes ERT to act as its agent for the purpose of scheduling, electing
and/or using all rights, including fixed transmission rights and their credits,
associated with the provision of service for PSE&G's Aggregate Retail Load under
this Agreement. ERT shall be responsible for costs related to such scheduling
activities to the same degree that it would be responsible for those costs for
other load serving entities.
6.2 During the Delivery Term, ERT shall have the authority to direct the
administration of PSE&Gs Active Load Management ("ALM") services that are not
otherwise ordered by PJM. ERT will cooperate and coordinate all such activities
with PSE&G. ERT will be responsible to provide adequate notice to PSE&G
regarding the commencement and cessation of ALM activities, and PSE&G will be
responsible to provide subsequent notice to ALM customers.
7.0 BILLING AND PAYMENT
7.1 Billing Period
As soon as practicable after the end of each billing period, ERT will
render to PSE&G an invoice for Capacity, Energy and Ancillary Services provided
during the preceding billing period.
7.2 Timeliness of Payment
All bills for service shall be due and payable, unless otherwise agreed
upon, in accordance with ERT's invoice instructions five (5) calendar days after
receipt of the billing statement. The invoice will be sent via facsimile or
other means agreed to by the Parties. PSE&G will make payments by wire transfer,
or by other mutually agreeable method(s), to the account of ERT as designated by
ERT. Any amounts, both principal and interest, remaining unpaid after the due
date will be deemed delinquent and will accrue interest at the Adjustment
Interest Rate, such interest to be calculated from the due date to the date the
unpaid amount is paid in full.
7.3 Disputed Bills
PSE&G may, in good faith, challenge the correctness of any ▇▇▇▇ rendered
under the Agreement no later than twelve (12) months after the date the ▇▇▇▇ was
rendered. In the event a ▇▇▇▇ or portion thereof, or any other claim or
adjustment arising hereunder, is challenged, PSE&G shall nevertheless pay the
entire amount of the statement when due, with notice of the objection given to
ERT at that time. Any billing challenge shall be in writing and shall state the
specific basis for the challenge. If it is subsequently determined or agreed
that an adjustment to the ▇▇▇▇ is appropriate, a revised ▇▇▇▇ shall be prepared
by ERT. A ▇▇▇▇ rendered under the Agreement shall be binding on PSE&G twelve
(12) months after the ▇▇▇▇ is rendered, except to the extent of any specific
challenge to the ▇▇▇▇ made by the PSE&G prior to such time.
7.4 Billing Adjustments
ERT shall have the right to adjust any ▇▇▇▇ rendered under the Agreement
for any errors in arithmetic, computation, meter readings, estimating, or
otherwise no later than twelve (12) months after the date the ▇▇▇▇ was rendered.
Any billing adjustment shall be in writing and shall state the
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specific basis for the adjustment. A billing adjustment shall constitute a new
▇▇▇▇ for the purposes of this Section. An adjusted ▇▇▇▇ shall be binding on ERT
twelve (12) months after the ▇▇▇▇ is rendered.
Over-payments or underpayments resulting from a billing adjustment or
billing challenge shall bear interest calculated at the Adjustment Interest
Rate. In the case of an underpayment, interest shall accrue from the due date of
the ▇▇▇▇ to which the adjustment or challenge relates to the date the additional
charge is paid. In the case of an overpayment, interest shall accrue from the
date the amount being refunded was received by ERT to the date the refund is
made.
7.5 New Taxes
ERT shall pay for all excise, severance, production, sales, occupation and
other taxes of like nature levied in respect to the Capacity or Energy, their
sale, and the handling thereof prior to the Point of Delivery. PSE&G shall pay
for all such taxes levied on such Capacity or Energy at and from the Point of
Delivery. At ERT's request, PSE&G shall provide evidence of its wholesale tax
exempt status in a form satisfactory to ERT. Absent such documentation, PSE&G
shall be responsible for such applicable tax.
7.6 Creditworthiness
ERT may request reasonable assurances, in a form satisfactory to ERT, of
PSE&G's continuing ability to pay for Power delivered pursuant to this Agreement
at any time during the Term if all of PSE&G's ratings by nationally recognized
rating agencies fall below investment grade.
8.0 PRICE
8.1 Price for Energy, Capacity and Ancillary Services for PSE&G's BGS
Customers. The price that PSE&G will pay ERT for Energy, Capacity and Ancillary
Services provided to PSE&G for its retail BGS customers shall be the amount
computed for each billing period equal to the full amount charged for BGS to
PSE&G's retail customers pursuant to PSE&G's retail tariffs, on file with the
BPU, less any sales and use tax during the Delivery Term. Such amount shall be
taken directly from portions of PSE&G's retail tariff for electric service on
file with the BPU.
8.2 Price for Energy, Capacity and Ancillary Services for PSE&G's
Off-Tariff Rate Agreement Customers. The price that PSE&G will pay ERT for
Energy, Capacity and Ancillary Services provided to PSE&G for its Off-Tariff
Rate Agreement customers shall be the amount computed for each billing period
equal to PSE&G's retail delivery to Off-Tariff Rate Agreement customers,
multiplied by the comparable BGS rate for such customers pursuant to PSE&G's
retail tariffs, on file with the BPU, less sales and use tax during the Delivery
Term. Such amount shall be taken directly from portions of PSE&G's retail tariff
for electric service on file with the BPU.
8.3 Price Stability Charge. The price for services provided under this
Agreement shall also include a price stability charge. In exchange for ensuring
the reliability of PSE&G's BGS service and for removing the risk of price
volatility from PSE&G, and to further ensure that PSE&G
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is capable of meeting its contractual obligations in its Off-Tariff Rate
Agreements, the BPU ordered that PSE&G pay ERT an additional charge associated
with the price stability of ERT's affiliate's combustion turbine assets, which
shall be based on the installed capacity of those assets. The additional charge
will be an amount computed for each billing period equal to the full actual
amount collected by PSE&G for its unsecuritized generation stranded costs in
accordance with the BPU Order through its Market Transition Charge (MTC) and
other means during the Term of this Agreement.
9.0 EVENTS OF DEFAULT
"Events of Default" with respect to a Party ("Defaulting Party") to the
Agreement shall mean:
(a) the failure by the Defaulting Party to make, when due, any payment
under the Agreement if such failure is not remedied on or before the
third (3rd) business day after notice of such failure to pay is
received by the Party;
(b) the failure by the Defaulting Party to observe and perform its
material obligations in accordance with this Agreement;
(c) the Defaulting Party or any entity guaranteeing the obligations of
that Party (i) is generally not paying its debts as they become due;
(ii) files or consents by answer or otherwise to the filing against
it of any petition or case seeking relief under any Federal, State
or foreign bankruptcy. insolvency or similar law (collectively,
"Bankruptcy Laws"); (iii) makes a general assignment for the benefit
of its creditors; (iv) applies for or consents to the appointment of
a custodian, receiver, trustee, conservator or other officer with
similar powers over it or over any substantial part of its property
("Custodian"); or (v) takes corporate action for the purpose of any
of the foregoing; (vi) is dissolved; (vii) becomes insolvent or is
unable or admits in writing its inability generally to pay debts as
they become due; (viii) or is unable to provide adequate assurances
to the other Party of its continued ability to perform; provided,
however, that any such assurances required to be given with respect
to creditworthiness, shall be governed by Section 7.6 above.
(d) a court or governmental authority. agency, instrumentality or
official of competent jurisdiction enters or issues an order or
decree with respect to the Defaulting Party (i) appointing a
Custodian; (ii) constituting an order for relief under, or approving
a petition or case for relief or reorganization or any other
petition or case to take advantage of, any Bankruptcy Laws; or (iii)
ordering its dissolution, winding-up or liquidation.
In the Event of Default under paragraph (b), the Defaulting Party will
have one (1) day to cure the default following receipt of a "Notice of Default"
from the Non-Defaulting Party. If the default is not cured within said one (1)
day, the Non-Defaulting Party will have the right to obtain adequate assurances
as described in Section 7.6 effective immediately from default date or to seek
appropriate legal or equitable remedies.
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10.0 INTERRUPTIONS AND CURTAILMENTS
10.1 The Power sold to PSE&G pursuant to this Agreement shall be
Physically Firm, provided, however, that ERT shall not be responsible for any
deficiencies in power quality of the supply, if such deficiency is without
negligence on ERT's part. In the event of an interruption or curtailment by a
Party, the Party interrupting the service shall, as promptly as reasonably
practicable, give notice of such interruption or curtailment to the other Party.
In the event that ERT is prevented from delivering Power or Ancillary
Services to the Point of Delivery, ERT shall use Prudent Utility Practices to
restore such delivery as soon as possible.
10.2 Duty to Mitigate
Each Party agrees that it has a duty to mitigate damages and covenants
that it will use commercially reasonable efforts to minimize any damages it may
incur as a result of the other Party's performance or non-performance of this
Agreement.
11.0 INDEMNIFICATION
PSE&G shall indemnify, defend and hold ERT harmless from and against all
loss, cost and expense, including court costs and reasonable attorney fees, for
any claims, suits, judgments, demands, actions or liabilities (collectively
"injuries") growing out of the operations conducted or performance hereunder by
PSE&G except for any such injuries caused by the gross negligence or willful
misconduct of ERT. ERT shall indemnify, defend and hold PSE&G harmless from and
against all loss, cost and expense, including court costs and reasonable
attorney fees, for any claims, suits, judgments, demands, actions or liabilities
(collectively "injuries") growing out of the operations conducted or performance
hereunder by ERT, except for any such injuries caused by the gross negligence or
willful misconduct of PSE&G.
12.0 LIMITATION OF LIABILITY
For breach of any provision for which an express remedy or measure of
damages is provided in this Agreement, the liability of the defaulting Party
shall be limited as set forth in such provision, and all other damages or
remedies are hereby waived. If no remedy or measure of damages is expressly
provided, the liability of the defaulting Party shall be limited to direct
damages only and all other damages and remedies are hereby waived. In no event
shall either Party be liable to the other Party for consequential, incidental,
punitive, exemplary or indirect damages in tort, for contract or otherwise.
13.0 FORCE MAJEURE
As used in this Agreement, "Force Majeure" means any cause beyond the
reasonable control of, and without the fault or negligence of, the Party
claiming Force Majeure. It shall include, without limitation, sabotage, strikes
or other labor difficulties, riots or civil disturbance, acts of God, act of
public enemy, drought, earthquake, flood, explosion, fire, lightning, landslide,
or similarly cataclysmic
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occurrence, or appropriation, diversion or interruption of Power by PJM or any
court or governmental authority having jurisdiction thereof, or any other cause,
whether of the kind herein enumerated, or otherwise, 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. Economic hardship of either Party shall
not constitute a Force Majeure under this Agreement, including (i) the loss of
the PSE&G's markets or inability economically to use or resell Capacity and/or
Energy, and (ii) the loss or failure of ERT's ability to sell Capacity and/or
Energy to a market at a more advantageous price.
If either Party to this Agreement is rendered wholly or partly unable to perform
its obligations thereunder because of Force Majeure as defined above, that Party
shall be excused from whatever performance is affected by the Force Majeure to
the extent so affected, provided that:
(i) the non-performing Party promptly, but in no case longer than
three (3) business days after the occurrence of the Force Majeure, gives
the other Party written notice describing the particulars of the
occurrence;
(ii) the suspension of performance shall be of no greater scope and
of no longer duration than is reasonably required by the Force Majeure,
and
(iii) the non-performing Party used Due Diligence to remedy its
inability to perform.
Neither Party to this Agreement will be required by the foregoing to settle a
strike affecting it except when, according to its best judgment, such a
settlement seems advisable. Nothing in this Section will excuse PSE&G from
making payment for services provided under this Agreement.
14.0 TERM
The Term of this Agreement shall be the period commencing with the
beginning of the Delivery Term and ending on July 31. 2003.
15.0 MISCELLANEOUS
15.1 Withdrawal.
If the Commission, or any court or agency having jurisdiction over this
Agreement, finds any term or condition to be unjust, unreasonable, otherwise
unlawful, or incompatible with regulatory policy, the Parties shall mutually
withdraw all or any portion of this Agreement and enter into negotiations of
such changes as are reasonably required to conform to the requirements of law;
provided that the Parties may choose to terminate this Agreement if the
Commission, or any court or agency having jurisdiction over this Agreement
requires a material change hereto that either Party deems to be unacceptable.
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15.2 Assignment.
Neither Party shall assign this Agreement or any part thereof without the
prior written consent of the other Party (which such consent shall not be
unreasonably withheld), except that either Party may assign this Agreement
without the consent of the other Party to an affiliate or to any company which
shall succeed by purchase, merger or consolidation to the electric properties
substantially as an entirety of a Party. Any Party's transfer or assignment in
violation of this section shall be void.
15.3 Applicable Laws, Regulations, Orders, Approvals, and Permits.
This Agreement is made subject to all existing or future applicable
federal, state, and local laws and to all existing or future duly promulgated
orders or other duly authorized actions of governmental authorities having
jurisdiction over the matters contained in Agreement.
15.4 Choice of Law and Jurisdiction.
The interpretation and performance of this Agreement shall be in
accordance with the laws of the State of New Jersey, excluding conflicts of law
principles that would require the application of the laws of a different
jurisdiction. Any dispute arising out of or related to this Agreement shall be
litigated in a court of the State of New Jersey. Each Party expressly submits to
the jurisdiction of the Courts of the State of New Jersey, and the federal
courts situated in Newark and to service of process by certified mail.
15.5 Counterparts to this Agreement.
This Agreement may be executed in any number of counterparts each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
15.6 Notices.
Unless otherwise provided in this Agreement, any notice, consent or other
communication required to be made under this Agreement shall be in writing and
shall be delivered in person, by certified mail (postage prepaid, return receipt
requested) or by nationally recognized overnight courier (charges prepaid), in
each case properly addressed to such Party as shown below, or sent by facsimile
transmission to the facsimile number indicated below:
ERT:
Manager - Electric Trading Operations
PSEG Energy Resources & Trade LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Page 12 of 16
PSE&G:
Manager - BGS Service
PSE&G
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either Party may from time to time change its address for the purpose of notices
or other communications to that Party by a similar notice specifying a new
address, but no such change shall be effective until it is actually received by
the Party sought to be charged with its contents All notices and other
communications required or permitted under this Agreement that are addressed as
provided in this Section shall be deemed to have been given (i) upon delivery if
given by overnight courier or regular mail or (ii) upon automatically generated
confirmation if given by facsimile.
15.7 Confidentiality.
Each Party agrees that it will treat in strictest confidence all
documents, materials and other information marked "Confidential" or"
Proprietary" by the disclosing Party ("Confidential Information"), which it
shall have obtained regarding the other Party during the course of the
negotiations leading to, and its performance of, this Agreement (whether
obtained before or after the date of this Agreement). Confidential Information
shall not be communicated to any third person (other than to its affiliates,
counsel, accountants, financial or tax advisors, or insurance consultants or in
connection with its financing); provided that in the event the receiving Party
is required by law, regulation or court order to disclose any Confidential
Information, the receiving Party will promptly notify the disclosing Party in
writing prior to making any such disclosure in order to facilitate the
disclosing Party's seeking a protective order or other appropriate remedy from
the proper authority and further provided that the receiving Party further
agrees that if the disclosing Party ultimately discloses such Confidential
Information to the requesting legal body, it will furnish only that portion of
the Confidential Information which is legally required and will exercise all
reasonable efforts to obtain reliable assurances that confidential treatment
will be accorded the Confidential Information. The obligations of nondisclosure
and restricted use of Confidential Information shall survive the Closing and the
expiration or other termination of this Agreement until such obligations expire
in accordance with their respective terms.
15.8 Partial Invalidity.
Wherever possible, each provision hereof shall be interpreted in such
manner as to be effective and valid under applicable law, but in case any one or
more of the provisions contained herein shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such provision shall be
ineffective to the extent, but only to the extent, of such invalidity,
illegality or unenforceability without invalidating the remainder of such
invalid, illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable. In the
event that such a construction would be unreasonable or would deprive a Party of
a material benefit under this Agreement, the Parties shall seek to amend this
Agreement to remove the invalid provision and otherwise provide the benefit
unless prohibited by law.
Page 13 of 16
15.9 Waivers.
The failure of either Party hereto to enforce at any time any provision of
this Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or the right
of a Party thereafter to enforce each and every such provision. A waiver under
this Agreement must be in writing and state that it is a waiver. No waiver of
any breach of this Agreement shall be held to constitute a waiver of any other
or subsequent breach.
15.10 Entire Agreement and Amendments.
This Agreement supersedes all previous representations, understandings,
negotiations and agreements either written or oral between the Parties hereto or
their representatives with respect to the subject matter hereof and constitutes
the entire agreement of the Parties with respect to the subject matter hereof.
No amendments or changes to this Agreement shall be binding unless made in
writing and duly executed by both Parties and accepted or approved by the
Commission.
15.11 No Third-Party Beneficiaries.
Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the Parties and their respective permitted successors and
assigns, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to either Party, nor to give any
third persons any right of subrogation or action against either Party.
15.12 Further Assurances.
If either Party determines in its reasonable discretion that any further
instruments, assurances or other things are necessary or desirable to carry out
the terms of this Agreement, the other Party will execute and deliver all such
instruments and assurances and do all things reasonably necessary or desirable
to carry out the terms of this Agreement.
15.13 Headings.
The headings contained in this Agreement arc solely for the convenience of
the Parties and should not be used or relied upon in any manner in the
construction or interpretation of this Agreement.
15.14 Sections.
Unless otherwise specified references in this Agreement to numbered
Sections and Subsections shall be to Sections and Subsections of this Agreement.
Page 14 of 16
15.15 Commission Review.
In connection with any Commission review of the Agreement, in the event
the Commission modifies any term or condition, alters any charge(s), or in any
way conditions its acceptance of the Agreement, and either Party determines that
it is adversely affected in a material way by such Commission action and/or
decision, the Parties hereby agree to promptly negotiate, in good faith, in an
effort to reach agreement on terms and conditions mutually agreeable to the
Parties relative to the subject matter of the Agreement. If no agreement is
reached within sixty (60) days after such Commission action and/or decision
either party shall have the right to terminate or cancel the Agreement by filing
written notice of termination or cancellation with the Commission and serving a
copy thereof on the other Party. Any such notice must be filed and served after
such sixty (60) day period but no later than seventy-five (75) days after such
Commission decision is final and not subject to any further administrative or
judicial review; provided, however, that neither Party is obligated to seek such
further review.
15.16 Changes.
This Agreement shall be changed solely by written amendment executed by
both Parties. It is the intent of the Parties that this Agreement shall not be
subject to change pursuant to Section 206 of the Federal Power Act except where
the Commission determines pursuant to Section 206 that such change is required
by the public interest.
15.17 Amendments Included.
Reference to, and the definition of, any document (including this
Agreement) shall be deemed a reference to such document as it may be amended,
amended and restated, supplemented or modified from time to time.
15.18 Successors Included.
Reference to any individual, corporation or other entity shall be deemed a
reference to such individual, corporation or other entity, together with its
successors and permitted assigns from time to time.
15.19 Number, Gender and Inclusion.
Defined terms in the singular shall include the plural and vice versa, and
the masculine, feminine or neuter gender shall include all genders. Whenever the
words "include," "includes," or "including" are used in this Agreement, they are
not limiting and have the meaning as if followed by the words "without
limitation."
Page 15 of 16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth at the beginning of this Agreement.
PSEG Energy Resources & Trade LLC
By:__________________________________
Public Service Electric and Gas Company
By:__________________________________
Page 16 of 16
ATTACHMENT I
OFF-TARIFF RATE AGREEMENTS
APPROVED OR PENDING AS OF MARCH 3,1999
APPROVED
PSE&G OTRA 96-1 Circuit Foil
PSE&G OTRA 96-2 Ford
PSE&G OTRA 96-3 Merck
PSE&G OTRA 97-1 Ball Plastic
PSE&G OTRA 97-2 Aluminum Shapes
PSE&G OTRA 97-3 BASF
PSE&G OTRA 97-4 Camden Iron
PSE&G OTRA 97-5 Amerada ▇▇▇▇
PSE&G OTRA 97-6 Passaic Valley Sewerage Commission
PSE&G OTRA 97-7 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
PSE&G OTRA ▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
PSE&G OTRA 97-9 Port Authority Transit Corporation
PSE&G OTRA ▇▇-▇ ▇▇▇▇▇▇▇
▇▇▇&▇ ▇▇▇▇ ▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sewerage Commission
One year extension of OTRA 97-6
PENDING
PSE&G OTRA 98-3 Marcal
PSE&G OTRA 99-1 ▇▇▇▇▇▇▇ Paper
PSE&G OTRA 99-2 Daily News
PSE&G OTRA 99-3 Huntsman
(Page 1)
ATTACHMENT 2
PJM CHARGES AND CREDITS
TO BE PAID/RECEIVED BY ERT
Schedule 1, 3.2.1 Spot Market Energy charges
Schedule 1, 3.2.2 Regulation charges
Schedule 1, 3.2.3 Operating Reserves charges
Schedule 1, 3.2.4, 3.4.1 Transmission Congestion charges
Schedule 1, 3.4.2 Transmission Losses charges
Schedule 1, 3.2.6, 3.2.4 Emergency Energy charges
Schedule 1.3.6 Meter Error Correction charges
Schedule 11 Capacity Credit Market charges
Schedule 1, 3.3.1 Spot Market Energy credits
Schedule 1, 3.3.2 Regulation credits
Schedule 1 , 3.3.3 Operating Reserves credits
Schedule 1, 3.2.4, 3.4.1 Transmission Congestion credits with respect
to fixed transmission rights
Schedule 1, 3.2.5 Transmission Losses credits
Schedule 1, 3.2.6, 3.2.4 Emergency Energy credits
Schedule 11 Capacity Credit Market credits
Schedule IA RTO Scheduling, System Control and Dispatch
Service Charges
Schedule 2 Reactive Supply and Voltage Control from
Generation Sources Service charge
Schedule 3 Regulation and Frequency, Response Service
charges
Schedule 4 Energy Imbalance Service charges
Schedule 5 Operating Reserves - Spinning Reserve and
Supplemental Reserve Service charges
Schedule 7 Long-Term - Yearly Delivery
Schedule 7 Short-Term - Monthly Delivery
(Page 2-a)
ATTACHMENT 2
PJM CHARGES AND CREDITS
TO BE PAID/RECEIVED BY ERT
Schedule 7 Short-Term - Weekly Deliver
Schedule 7 Short-Term - Daily Delivery
Schedule 7 Congestion and Losses
Schedule 7 Long-Term - Other Supporting Facilitates and
Taxes
Schedule 7 Short-Term - Other Supporting Facilities and
Taxes
Schedule 8 Monthly Delivery
Schedule 8 Weekly Delivery
Schedule 8 Daily Delivery
Schedule 8 Hourly Delivery
Schedule 8 Congestion and Losses
Schedule 8 Other Supporting Facilities and Taxes
Schedule 2 Reactive Supply and Voltage Control from
Generation Sources
Service credits
Schedule 4 Energy Imbalance Service credits
Section ▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇-▇▇-▇▇▇▇▇ Transmission Service
credits
(Page 2-b)