EX-10(mm)
Renewable Resource
Energy Purchase Agreement Between
Texas Utilities Electric Company
and
New World Power
Texas Renewable Energy Limited Partnership
Table of Contents
Article 1. Renewable Resource Facility Design and Interconnection........... 1
1.01 Renewable Resource Facility...................................... 1
1.02 Renewable Resource Facility Specifications....................... 1
1.03 Interconnection Facilities....................................... 3
1.04 Agreement for Electric Service................................... 5
1.05 TU Electric Approval............................................. 5
1.06 Exclusion of Liability........................................... 6
Article 2. Renewable Resource Facility Operation and Testing................ 6
2.01 Commercial Operation............................................. 6
2.02 Performance Tests................................................ 7
2.03 General Requirements............................................. 7
2.04 Required Disconnection........................................... 9
2.05 Energy Delivery.................................................. 9
2.06 No Parallel or Interstate Operations............................. 9
2.07 Access to Facility............................................... 10
Article 3. Payments, Records, and ▇▇▇▇▇▇▇▇.................................. 11
3.01 Monthly Payments................................................. 11
3.02 Interconnection Costs............................................ 11
3.03 Regulatory Action and Recoupment................................. 13
3.04 Cooperation...................................................... 14
3.05 Governmental Impositions......................................... 14
3.06 Records.......................................................... 15
3.07 Billing.......................................................... 15
3.08 Interest on Past Due Bills....................................... 15
3.09 Corrections...................................................... 16
Article 4. Outages.......................................................... 16
4.01 Outages.......................................................... 16
4.02 No Liability..................................................... 16
Article 5. Insurance and Indemnity.......................................... 16
5.01 Proof of Coverage................................................ 16
5.02 Policies......................................................... 17
5.03 Coverage and Liability Limits.................................... 17
5.04 Subcontractor Coverage........................................... 18
5.05 Reporting........................................................ 18
5.06 Release and Waiver............................................... 18
5.07 No Liability Limitation.......................................... 18
5.08 Indemnification.................................................. 18
5.09 Survival of Article.............................................. 19
Article 6. Term and Uncontrollable Force.................................. 19
Renewable Resource Energy Purchase Agreement - Page i
6.01 Term............................................................. 19
6.02 Option to Extend Term............................................ 20
6.03 Regulatory Approval.............................................. 21
6.04 Insolvency....................................................... 22
6.05 Uncontrollable Force............................................. 22
6.06 Termination...................................................... 23
6.07 No Consequential Damages......................................... 24
Article 7. Representations and Warranties................................... 24
7.01 Representations and Warranties................................... 24
Article 8. Confidentiality.................................................. 26
8.01 Scope............................................................ 26
8.02 Obligation....................................................... 26
8.03 Term............................................................. 26
Article 9. Option to Purchase............................................... 27
9.01 Grant of Option.................................................. 27
9.02 Information...................................................... 27
9.03 Manner of Exercise............................................... 28
9.04 Title............................................................ 28
9.05 Possession and Risk of Loss...................................... 28
9.06 Closing Date..................................................... 28
9.07 Environmental Matters............................................ 28
9.08 Closing.......................................................... 29
9.09 Purchase Price................................................... 30
9.10 Assignment of Option............................................. 31
9.11 Memorandum of Option............................................. 31
Article 10 Miscellaneous................................................... 31
10.01 Subject to Regulation........................................... 31
10.02 Assignment...................................................... 31
10.03 Time Is of Essence.............................................. 31
10.04 Notices......................................................... 31
10.05 No Rights of Third Parties...................................... 32
10.06 Subject to Applicable Laws...................................... 32
10.07 No Partnership.................................................. 33
10.08 Amendment....................................................... 33
10.09 No Waiver....................................................... 33
10.10 Captions........................................................ 33
10.11 Complete Agreement.............................................. 33
10.12 Governing Law................................................... 33
10.13 Severability.................................................... 33
10.14 Exhibits........................................................ 33
10.15 Construction.................................................... 33
10.16 Delivery of Copy of Agreement................................... 34
Renewable Resource Energy Purchase Agreement - Page ii
EXHIBIT 1.01
Description of Renewable Resource Facility................................. 35
EXHIBIT 1.02(g)
Relay Protective Requirements.............................................. 36
EXHIBIT 1.03
Interconnection Facilities................................................. 37
EXHIBIT 1.03(f)
Telemetering and SCADA Table Requirements.................................. 1
EXHIBIT 2.01(a)
List Of Items To Be Completed Before Phase One Partial Commercial Operation 1
EXHIBIT 2.01(b)
List Of Items To Be Completed Before Phase Two Partial Commercial Operation 1
EXHIBIT 2.01(c)
List Of Items To Be Completed Before Commercial Operation.................. 1
EXHIBIT 2.02(a)
Performance Test Procedures................................................ 1
EXHIBIT 3.01
Payment Schedule........................................................... 1
EXHIBIT 3.06(b)
Parameters to be Monitored and Recorded by Producer........................ 1
EXHIBIT 9.11
Memorandum of Option....................................................... 1
Renewable Resource Energy Purchase Agreement - Page iii
Renewable Resource Energy Purchase Agreement
This Renewable Resource Energy Purchase Agreement ("Agreement") dated
Sept.13, 1994, is between Texas Utilities Electric Company ("TU Electric"), a
Texas corporation with offices in Dallas, Dallas County, Texas, and New World
Power Texas Renewable Energy Limited Partnership ("Producer"), a limited
partnership of which The New World Power Corporation ("New World"), a Delaware
corporation with offices in Lime Rock, Connecticut, is the general partner. In
consideration of the promises made in this Agreement, Producer agrees to
produce, deliver, and sell to TU Electric, and TU Electric agrees to take and
purchase from Producer, electrical energy under this Agreement's provisions.
Article 1. Renewable Resource Facility Design and Interconnection
1.01 Renewable Resource Facility. Producer intends, at its sole cost and
expense, to design, construct, and operate a wind generation facility (the
"Renewable Resource Facility"), with a total nameplate electrical generating
capacity of 40,000 kilowatts ("kW") and anticipated average net annual
generation of 113,000,000 kilowatt-hours ("kWh") located in ▇▇▇▇▇▇ County,
Texas. Unless agreed otherwise by both parties in writing, all wind turbines in
the Renewable Resource Facility must be Enercon model E-40, 500 kW wind
turbines. Information about the Renewable Resource Facility--including
specifications of, and pertinent data about, its equipment and protective
features--is attached as Exhibit 1.01. Before beginning construction of the
Renewable Resource Facility, Producer shall furnish TU Electric with a specific
plot plan of the Renewable Resource Facility, as a supplement to Exhibit 1.01,
after ongoing meteorological data collection has been substantially completed
and reviewed by Producer, along with local site parameters. Producer may not
begin construction of the Renewable Resource Facility until TU Electric has
approved in writing the location of the wind turbines, Producer Substation,
control room and maintenance facility, and Interconnection Facilities, which
approval may not be unreasonably withheld. The Renewable Resource Facility
includes the Producer Substation as described on Exhibit 1.03.
1.02 Renewable Resource Facility Specifications. Producer shall design,
construct, and operate the Renewable Resource Facility so that it complies with
all legal and regulatory requirements applicable to the Renewable Resource
Facility, including national, state, and local construction and safety codes and
with these requirements:
(a) The Renewable Resource Facility's alternating current generating system
must be 60 Hertz ("Hz"), must be connected for balanced three-phase
operation, must not cause unreasonable unbalance on Company's electrical
system, and must adhere to the recommendations in two publications of the
Institute of Electrical and Electronic Engineers ("IEEE"): IEEE
Recommended Practices and Requirements for Harmonic Control in Electrical
Power Systems ("IEEE 519") and IEEE Recommended Practice for the
Electrical Design and Operation of Wind Generating Stations ("IEEE 1094").
Renewable Resource Energy Purchase Agreement - Page 1
(b) The Renewable Resource Facility must be designed so that it (i)
automatically and instantaneously disconnects the Renewable Resource
Facility's generators from TU Electric's system in case of a forced outage
or interruption of TU Electric's system connected to the Renewable
Resource Facility and (ii) coordinates with the transfer trip scheme to be
installed by TU Electric on the Big Spring--Chalk 69 kV line section, as
shown on Exhibit 1.02(g).
(c) The Renewable Resource Facility must be designed so that it automatically
disconnects the Renewable Resource Facility from TU Electric's system
within 15 cycles if the operating frequency as measured at the Point of
Interconnection deviates more than +0.2 Hz or -0.7 Hz from a 60 Hz base
and within 10 cycles if a voltage deviation of +5% or -10% from nominal
occurs. If TU Electric system requirements dictate trip points other than
those stated above, then Producer shall make the necessary changes to the
Renewable Resource Facility to effect those settings. If Producer is
unable to effect those settings within a reasonable time after TU Electric
sends a written request for such changes, then TU Electric may provide, or
require Producer to provide, the necessary equipment in the
Interconnection Facilities, at Producer's expense.
(d) The Renewable Resource Facility must not be able to, nor be permitted to,
energize a de-energized circuit of TU Electric.
(e) The Renewable Resource Facility must include a manually operable 69 kV
isolating switch with visible break, accessible to TU Electric personnel
and capable of being locked in open position.
(f) The Renewable Resource Facility must be connected to TU Electric's 69
kilovolt transmission system through a power transformer or transformers.
(g) Producer shall install, own, operate, and maintain all necessary
facilities, including control and protective devices on Producer's side of
the Point of Interconnection that are appropriate for parallel operation
of the Renewable Resource Facility with TU Electric's system. At a
minimum, the installation must comply with the system protection
requirements shown on Exhibit 1.02(g). The "Point of Interconnection" is
the point where TU Electric's electrical conductors are connected to
Producer's electrical conductors, as shown on Exhibit 1.03.
(h) Producer is responsible for protecting the Renewable Resource Facility so
that scheduled or forced outages, short-circuits, and other disturbances
on TU Electric's system do not damage the Renewable Resource Facility.
(i) Producer shall, at its expense, provide corrections or additions to
existing control and protective equipment reasonably required to protect
TU Electric's system or if government or industry regulations or standards
change, to the extent that such corrections or additions are necessary due
to the existence of the Renewable Resource Facility, when requested by TU
Electric.
Renewable Resource Energy Purchase Agreement - Page 2
(j) At a minimum, the Renewable Resource Facility must be able to operate
continuously under normal operating conditions with all available wind
turbines in service at a lagging power factor of 0.9 and a leading power
factor of 0.9. If the Renewable Resource Facility is not able to operate
continuously within this range, and if such inability results in
operational problems on TU Electric's system, additional Interconnection
Facilities may be required by TU Electric, at Producer's expense.
1.03 Interconnection Facilities.
(a) "Interconnection Facilities" are TU Electric's electric lines, protection,
metering, and other facilities that function as a part of TU Electric's
electrical system and that are required or appropriate, in TU Electric's
sole judgment, to effect an electrical interconnection between TU
Electric's system and the Renewable Resource Facility, as shown on Exhibit
1.03. The Interconnection Facilities include, without limitation:
(i) Tap structure in the Big Spring--Chalk 69 kV transmission line with
three sectionalizing switches;
(ii) 1.7 miles of 69 kV 336.4 MCM ACSR transmission line from tap
structure to TU Electric 69 kV switchyard;
(iii) TU Electric 69 kV Switchyard consisting of dead-end structures,
relaying equipment, RTU, metering, and relay house;
(iv) Line relay panels at Big Spring and Chalk; and
(v) Transmission right-of-way from tap point to switchyard, access road
from Producer road to TU Electric 69 kV switchyard, and property
provided for 69 kV switchyard.
(b) Producer shall pay TU Electric for the actual cost associated with the
Interconnection Facilities pursuant to Section 3.02(a).
(c) Producer shall grant or secure for TU Electric, at Producer's expense, any
rights-of-way, and shall provide suitable space on property owned or
controlled by Producer, necessary for construction, installation,
maintenance, and operation of the Interconnection Facilities, as requested
by TU Electric, including access roads.
(d) TU Electric shall furnish, install, maintain, and own, at Producer's
expense, the necessary metering equipment to record energy purchases under
this Agreement. Producer shall furnish and install, to TU Electric's
specifications, the meter sockets or other related metering equipment
necessary. TU Electric reserves the right to install, at its expense, any
additional metering or recording instruments in the Renewable Resource
Facility to collect test and operating data. Producer may request an
independent meter test of the meters used to record energy purchases under
this Agreement. If the meters are found to be within the accuracy
standards established by the American National
Renewable Resource Energy Purchase Agreement - Page 3
Standards Institute, Incorporated, then the test is at Producer's expense;
otherwise, the test is at TU Electric's expense.
(e) TU Electric shall file an application with the Public Utility Commission
of Texas for an amendment to its certificate of convenience and necessity
("CCN"), if such an application is necessary, for the transmission
facilities within the Interconnection Facilities on or before March 1,
1995. If TU Electric is unable to obtain, on or before the later of (i)
December 1, 1995, or (ii) 12 months after the application for an amendment
to TU Electric's CCN is filed, in form and substance satisfactory to both
TU Electric and Producer, an amendment to its existing CCN, if required,
for construction of any of the Interconnection Facilities, then a party
that is dissatisfied, whether TU Electric or Producer, shall send a
written notice to the other party specifying the absence of, or
unsatisfactory portions of, an order granting the application for an
amendment to the CCN. Both parties shall cooperate in trying to remedy the
absence of, or unsatisfactory portions of, an order granting the
application for an amendment to the CCN. If an amendment to TU Electric's
CCN for construction of the Interconnection Facilities, in form and
substance satisfactory to TU Electric and Producer, is not obtained within
120 days after the notice of the lack of a satisfactory order is given,
then either TU Electric or Producer may terminate this Agreement on
written notice to the other party.
(f) The Renewable Resource Facility and the Interconnection Facilities must
include the "Communications and Telemetry Equipment," which means the
telemetering, communications, and data acquisition equipment, and
automatic switching control facilities, communication and data
transmission (telemetering) facilities, and control equipment operable
from the Texas Utilities System Operating Center ("SOC") and any other
locations designated by TU Electric that are necessary or convenient, as
decided by TU Electric, in its sole discretion, for the effective
operation of the Renewable Resource Facility and the other Interconnection
Facilities with TU Electric's system. The Communications and Telemetry
Equipment must include at least the following:
(i) one full period voice circuit (an off-premise extension for TU
Electric's PBX), the termination to which is the control room in the
Renewable Resource Facility;
(ii) one communication circuit (420 data circuit) from a multiport remote
terminal unit ("RTU"), which RTU must be provided by TU Electric at
Producer's expense, at TU Electric's 69 kV switchyard to SOC or any
other location designated from time to time by TU Electric;
(iii) one communication circuit from the RTU required under Section
1.03(f)(ii) to TU Electric's Western Region transmission office or
any other location designated from time to time by TU Electric;
(iv) sufficient communication, telemetering, and control equipment
connected from the Renewable Resource Facility control room or the
Producer Substation to the RTU
Renewable Resource Energy Purchase Agreement - Page 4
required under Section 1.03(f)(ii) to provide for these control,
status, position, or readings:
(A) control of, and status indication for, all 69 kV circuit
breakers in the Producer Substation or in the Interconnection
Facilities;
(B) instantaneous three-phase megawatts and megavars reactive and
bus voltage on the 69 kV bus;
(C) TU Electric's meter readings, including MWh, MW, MVAR, all
both "in" and "out", from the meter stand in the TU Electric
69 kV switchyard in the Interconnection Facilities; and
(D) meteorological data, as specified in Exhibit 1.03(f);
(v) one full business voice circuit, which may be cellular, that
terminates in TU Electric's 69 kV switchyard in the Interconnection
Facilities to use in maintaining and operating the Interconnection
Facilities and to read the billing meter;
(vi) one full business voice circuit, which may be cellular, in the
Renewable Resource Facility's control room, including facsimile
capability compatible with the equipment used by SOC;
(vii) a facsimile machine in the Renewable Resource Facility's control
room.
Other specifications for the Communications and Telemetry Equipment are
contained in Exhibit 1.03(f). TU Electric shall design the Communications and
Telemetry Equipment. TU Electric shall install, maintain, and own the
Communications and Telemetry Equipment, except that Producer shall acquire,
install, and maintain, at its expense, the items described in Subsections
1.03(f)(i), 1.03(f)(iii), 1.03(f)(iv), 1.03(f)(v), 1.03(f)(vi), and
1.03(f)(vii), and Producer shall acquire, install, and maintain, at its expense,
the communications circuits described in Subsection 1.03(f)(ii). Producer shall
provide rights-of-way and space for TU Electric to install the Communications
and Telemetry Equipment.
1.04 Agreement for Electric Service. If Producer desires electric utility
service at the Renewable Resource Facility during construction, testing, or
otherwise, it will be provided by TU Electric under a separate Agreement for
Electric Service.
1.05 TU Electric Approval.
(a) "Plans" are all specifications, drawings, procedures, schedules, permits,
and equipment test reports reasonably required to design, construct, and
operate the Renewable Resource Facility in compliance with this Agreement.
Partial Commercial Operation may not commence until TU Electric has given
its written approval of the Plans. TU Electric's approval rights are
limited to those aspects of the Renewable Resource Facility that are
regulated by this Agreement and that affect the Renewable Resource
Facility's
Renewable Resource Energy Purchase Agreement - Page 5
suitability for safe, compatible, reliable, and synchronous operation with
TU Electric's system.
(b) Producer shall notify TU Electric in writing at least 10 days before
energization and start-up testing of the Renewable Resource Facility. TU
Electric may inspect the Renewable Resource Facility and witness the
testing of any equipment and devices associated with interconnection.
(c) Producer may not materially modify the Renewable Resource Facility
(including replacement of major equipment items with whatever is then the
current state of the art technology) unless TU Electric has approved in
writing the Plans for the modification, which approval may not be
unreasonably withheld; it is not unreasonable for TU Electric to withhold
its approval until the parties reach agreement on a method to share
savings under Section 7.01(j).
1.06 Exclusion of Liability. TU Electric--by review, comment, failure to
comment, or approval of any Plans for design, construction, operation,
modification, or maintenance of any facilities under this Agreement--is not
responsible for strength of materials, design, adequacy, or compatibility of the
facilities, nor does it assume any responsibility or liability for damages or
physical injury to (a) either party's real or personal property or electrical
equipment, (b) the real or personal property of third persons or entities not a
party to this Agreement, (c) any persons who may come in contact with or upon
either party's facilities; or (d) any other persons or property, real or
personal. TU ELECTRIC'S REVIEW, COMMENT, FAILURE TO COMMENT, OR APPROVAL IS NOT
AN ENDORSEMENT OR WARRANTY OF THE FACILITIES.
Article 2. Renewable Resource Facility Operation and Testing
2.01 Commercial Operation.
(a) The "Phase One Partial Commercial Operation Date" is the next day after TU
Electric executes and delivers to Producer a "Certificate of Readiness for
Partial Commercial Operation" that evidences completion, to TU Electric's
reasonable satisfaction, of all of the items listed in Exhibit 2.01(a).
The Renewable Resource Facility's "Partial Commercial Operation" begins at
12:01 a.m. on the Phase One Partial Commercial Operation Date and
continues until the Commercial Operation Date or until this Agreement is
terminated, whichever occurs first. The Renewable Resource Facility may
not be connected to TU Electric's system before the Phase One Partial
Commercial Operation Date, except to perform the Performance Tests
outlined in Section 2.02(a) on Phase One of the Renewable Resource
Facility and as approved by TU Electric in writing in advance. "Phase
One," "Phase Two," and "Phase Three" of the Renewable Resource Facility
will be defined by Producer and TU Electric in the form of a supplement to
Exhibit 1.01 to be prepared by Producer after ongoing meteorological data
has been substantially completed and reviewed by Producer. Producer may
not begin construction of the Renewable Resource Facility until TU
Electric has approved in
Renewable Resource Energy Purchase Agreement - Page 6
writing the definitions of Phase One, Phase Two, and Phase Three, which
approval may not be unreasonably withheld.
(b) The "Phase Two Partial Commercial Operation Date" is the next day after TU
Electric executes and delivers to Producer a "Certificate of Readiness for
Phase Two Partial Commercial Operation" that evidences completion, to TU
Electric's reasonable satisfaction, of all of the items listed in Exhibit
2.01(b).
(c) The "Commercial Operation Date" is the next day after TU Electric executes
and delivers to Producer a "Certificate of Readiness for Commercial
Operation" that evidences completion, to TU Electric's reasonable
satisfaction, of all of the items listed in Exhibit 2.01(c). The Renewable
Resource Facility's "Commercial Operation" begins at 12:01 a.m. on the
Commercial Operation Date and continues until this Agreement expires or is
otherwise terminated.
2.02 Performance Tests.
(a) Before the Phase One Partial Commercial Operation Date, Producer shall
perform (or allow TU Electric, at TU Electric's option, to perform, at
Producer's expense) the following tests ("Performance Tests") on Phase One
of the Renewable Resource Facility. Before the Phase Two Partial
Commercial Operation Date, Producer shall perform (or allow TU Electric,
at TU Electric's option, to perform, at Producer's expense) the following
tests ("Performance Tests") on Phase Two of the Renewable Resource
Facility. Before the Commercial Operation Date, Producer shall perform (or
allow TU Electric, at TU Electric's option, to perform, at Producer's
expense) the following tests ("Performance Tests") on the Renewable
Resource Facility. After the Commercial Operation Date, TU Electric may
require that each Performance Test be run at TU Electric's discretion. The
party running the Performance Test shall promptly give the written test
results to the other party. Each Performance Test must be performed under
the written procedures for the test contained in Exhibit 2.02(a). Each
party has the right to reasonable advance notice of, and to have personnel
present during, Performance Tests run by the other party.
(b) The Performance Tests are:
(i) A trip test ("Trip Test") (coordinated with TU Electric) of the
Renewable Resource Facility's protective relaying that trips the 69
kilovolt ("kV") circuit breaker connecting the Renewable Resource
Facility to TU Electric's electric system. The test must show that
the Renewable Resource Facility meets the specifications contained
in the protective relaying design as approved by TU Electric under
Subsection 1.05(a).
(ii) An operational test ("Relay Test") of the Renewable Resource
Facility's protective relaying for the 69 kV breaker and main
step-up transformer. The test must show that the Renewable Resource
Facility meets the specifications contained in the design of the
protective relaying as approved by TU Electric under Subsection
1.05(a).
Renewable Resource Energy Purchase Agreement - Page 7
(iii) A test ("Power Factor Test") of the Renewable Resource Facility's
ability to operate under leading and lagging power factor
conditions. The test must be conducted by operating at each power
factor design limit for one hour. The test must show that the
Renewable Resource Facility meets the specifications contained in
Subsection 1.02(j).
2.03 General Requirements.
(a) All electric energy generated at the Renewable Resource Facility and
delivered to TU Electric must have a nominal frequency of 60 Hz and must
have the precise frequency, voltage, and other properties and
characteristics from time to time established by TU Electric for operation
of its electric system, provided that Producer must be given reasonable
advance notice of any change in the established frequency, voltage, and
other properties and characteristics.
(b) Producer shall maintain and operate the Renewable Resource Facility (i) to
minimize the likelihood of a disturbance affecting or impairing either TU
Electric's system or the quality of service to TU Electric's customers,
(ii) to maintain, within the Renewable Resource Facility's design
capability, power factor, and voltage as TU Electric requests from time to
time, and (iii) in compliance with all applicable legal and regulatory
requirements, including environmental requirements.
(c) Producer shall adequately staff the Renewable Resource Facility to
monitor, operate, and maintain the equipment and shall staff the Renewable
Resource Facility with a qualified operator during ordinary business
hours.
(d) Producer shall report to SOC, on a timely basis, those items and/or
conditions reasonably necessary for SOC's internal planning. The
information supplied shall include, without limitation, the following:
(i) status (on or off line) within 15 minutes;
(ii) daily plan for the next day, including capability released and
available for operation;
(iii) overhaul or scheduled outage plans for the year (updated weekly);
(iv) any scheduled or planned transmission or switch yard clearances or
maintenance plans for the next twelve (12) months (updated weekly);
and
(v) time and cause of outage of Producer's generators or circuit
breakers included in the Renewable Resource Facility.
(e) Producer must obtain TU Electric's approval before closing the Renewable
Resource Facility's 69 kV breaker or 69 kV isolating switch connecting to
the TU Electric system, whether for testing or for operations, which
approval may not be unreasonably withheld.
Renewable Resource Energy Purchase Agreement - Page 8
(f) Producer must properly synchronize the Renewable Resource Facility with TU
Electric's system and is responsible for any damages caused to TU
Electric's system or its customers by improper synchronization.
(g) Producer is responsible for the proper operation of the equipment in the
Renewable Resource Facility designed to cause the Renewable Resource
Facility to trip off-line as required in Section 1.02(c), and Producer is
responsible for any damages caused to TU Electric's system or its
customers by failure of the Renewable Resource Facility to trip as
designed.
(h) Producer shall notify TU Electric of any emergency or hazardous condition
or occurrence that in any way affects, or could affect, the safe operation
of TU Electric's system.
(i) Producer may not electrically connect the Renewable Resource Facility to
any facilities other than those of TU Electric.
(j) Producer shall maintain and operate the Renewable Resource Facility and
facilities interconnecting the Renewable Resource Facility to the Point of
Interconnection in compliance with the applicable then-current guidelines
of the Electric Reliability Council of Texas ("ERCOT") or its successor
and under TU Electric's reasonable directions; if this Agreement conflicts
with the ERCOT guidelines, then this Agreement controls.
2.04 Required Disconnection. Producer shall immediately open the electrical
connection between the Renewable Resource Facility and the Interconnection
Facilities when requested by TU Electric for any of the following reasons:
(a) to facilitate maintenance or repair of any of TU Electric's facilities or
system or of Producer's facilities being maintained by TU Electric, as
decided by TU Electric in its sole discretion, as long as TU Electric
diligently proceeds with the repairs or maintenance;
(b) an emergency exists on the system of TU Electric or the ERCOT system, as
decided by TU Electric in its sole discretion, as long as TU Electric
diligently proceeds to correct or remedy the emergency to the extent that
action is reasonable;
(c) inspection of the Renewable Resource Facility's generating or protective
equipment reveals a hazardous condition or a lack of proper maintenance,
as decided by TU Electric in its sole discretion;
(d) the Renewable Resource Facility is operating, as decided by TU Electric in
its sole discretion, hazardously or so that it is interfering with TU
Electric's customers or the operation of TU Electric's system; or
Renewable Resource Energy Purchase Agreement - Page 9
(e) upon termination or expiration of this Agreement; however--subject to TU
Electric's rights and Producer's representations, warranties, and
obligations under Section 2.06--Producer may stay interconnected with TU
Electric if Producer is entitled to, and has satisfied all prerequisites
to, interconnect with TU Electric under TU Electric's tariff in effect at
that time or under applicable law in effect at that time.
TU Electric may open the electrical connection between the Renewable Resource
Facility and the Interconnection Facilities, if it deems it necessary, in its
sole discretion, for any of the foregoing reasons, but TU Electric must allow
Producer to close the electrical connection between the Renewable Resource
Facility and the Interconnection Facilities as soon as it is reasonably
practical to do so.
2.05 Energy Delivery. All energy generated by the Renewable Resource Facility,
net of that required for operation of the Renewable Resource Facility, shall be
delivered to and taken by TU Electric under the provisions of this Agreement.
2.06 No Parallel or Interstate Operations.
(a) During the term of this Agreement, and during all renewals or extensions
of it, Producer agrees that no portion of the Renewable Resource Facility
will be electrically interconnected or operated in parallel with any part
or parts of any electric system other than the TU Electric system.
(b) Producer represents, and warrants and agrees, that after the termination
of this Agreement, including all renewals or extensions of it, Producer
will not, except in compliance with the Orders of the Federal Energy
Regulatory Commission ("FERC") in Dockets Nos. EL79-8 and E-9558 issued on
October 28, 1981, November 5, 1981, and January 29, 1982, and the Order
issued in FERC Docket No. EL79-8-002 on July 23, 1987, either directly or
indirectly, through other entities that are either directly or indirectly
interconnected with facilities owned or operated by TU Electric, transmit
electric energy in interstate commerce or sell, deliver, purchase, or
receive electric energy in interstate commerce or own or operate any
facilities therefor, or establish, maintain, modify, or utilize, directly
or through other entities, any connection or facility used or to be used
for the transmission, sale, delivery, purchase, or receipt of electric
energy in interstate commerce, unless Producer has first applied for and
obtained an order from the FERC, applicable to TU Electric (unless TU
Electric agrees in writing that such application need not be filed), under
Sections 210, 211, and 212 of the Federal Power Act, requiring the
establishment, maintenance, modification, or utilization of any such
connection that may be involved. The representations and warranties of
Producer contained in this Section 2.06(b) survive the termination or
expiration of this Agreement. If it is finally determined that TU Electric
is a "public utility" within the meaning of Section 201(e) of the Federal
Power Act and subject to the full plenary power of the FERC, then the
limitations of this Section 2.06(b) thereupon terminate.
(c) If Producer breaches any agreement, representation or warranty contained
in this Section 2.06, then TU Electric, in addition to any other remedies
it may have, including the remedy specified in Section 2.06(d) below, has
the options to do any one or more of the
Renewable Resource Energy Purchase Agreement - Page 10
following: (i) immediately suspend receipt of electric energy from
Producer, (ii) immediately disconnect its facilities from the facilities
of Producer, or (iii) immediately terminate this Agreement.
(d) The parties agree that it will be impossible to measure in terms of money
the damages that may or will accrue by reason of any breach of any of the
representations and warranties set forth in this Section 2.06, or any
failure in the performance of any of the obligations contained in this
Section 2.06, and for that reason, among others, the parties agree that TU
Electric is entitled to specific performance of the provisions of this
Section 2.06, in addition to any other remedies that may exist. If TU
Electric institutes any proceedings to enforce any of the provisions of
this Section 2.06, Producer hereby waives any claim or defense that an
adequate remedy at law exists.
(e) Nothing in this Section precludes the use of connections for transmission
of electric energy in interstate commerce under bona fide emergencies
pursuant to the provisions of Section 202(d) of the Federal Power Act.
2.07 Access to Facility. TU Electric may enter the Renewable Resource Facility
at any reasonable time after giving Producer reasonable advance notice to
inspect the Renewable Resource Facility or to show it to third parties who may
accompany TU Electric to the Renewable Resource Facility. TU Electric may enter
the Interconnection Facilities at any time.
Article 3. Payments, Records, and ▇▇▇▇▇▇▇▇
3.01 Monthly Payments. TU Electric will pay Producer monthly for energy metered
at the Point of Interconnection in accordance with the payment schedule depicted
on Exhibit 3.01.
3.02 Interconnection Costs.
(a) Producer shall pay TU Electric for the Actual Cost associated with the
installation of the Interconnection Facilities described in Section 1.03,
except installation of the Interconnection Facilities for which Producer
is responsible (the "Interconnection Costs").
(b) Producer shall provide security acceptable to TU Electric in the amount of
$800,000, including rights-of-way costs, before TU Electric is required to
begin acquisition of rights-of-way and construction of the Interconnection
Facilities. Producer must pay the entire Interconnection Costs before the
Phase One Partial Commercial Operation Date.
(c) TU Electric shall inspect, maintain, repair and replace the
Interconnection Facilities, except for those items listed in Section 1.03
as being the responsibility of Producer. Beginning at the conclusion of
the first month after completion of construction of the Interconnection
Facilities, Producer shall pay TU Electric a monthly charge for
Renewable Resource Energy Purchase Agreement - Page 11
inspection and maintenance of the Interconnection Facilities that are the
responsibility of TU Electric at the following rates:
Monthly Monthly
Year Charge Year Charge
1996 $320 2009 $460
1997 $330 2010 $480
1998 $340 2011 $490
1999 $350 2012 $510
2000 $360 2013 $530
2001 $370 2014 $540
2002 $380 2015 $560
2003 $390 2016 $580
2004 $400 2017 $590
2005 $410 2018 $610
2006 $420 2019 $630
2007 $440 2020 $650
2008 $450 2021 $670
Producer shall pay TU Electric for the Actual Cost of repairs or
replacements to the Interconnection Facilities that are TU Electric's
responsibility plus 15% of that Actual Cost.
(d) Actual Cost is calculated on the same basis as TU Electric calculates
costs for construction of its new facilities or for repair or replacement
of its facilities, as applicable. Actual Cost includes without limitation:
(i) "Material Costs" are TU Electric's costs for material, equipment,
and machinery incorporated in the facilities, whether purchased
expressly for that purpose or taken from stores, at their store
issue or purchase order price to TU Electric, including freight,
insurance, and taxes (except taxes included in the Purchasing and
Stores Expense as set forth in Section 3.02(d)(iv) below), and any
expenses incurred for storage, special transportation, and handling.
"Taxes" include sales, use excise, and other taxes that attach to or
are measured by the value or cost of materials.
(ii) "Labor Costs" are TU Electric's costs for its employees' labor at
the cost of all wages and salaries, including overtime pay and
premiums, paid to all construction and administrative employees,
including job bosses, supervisors, and inspectors, and travel time,
and employees' expenses such as social security contributions,
unemployment and payroll taxes, retirement benefits, hospitalization
and life insurance benefits, sick leave, vacation pay, and other
fringe benefits. All labor-related expense charges must be the same
as that used by TU Electric for its own accounting purposes. The
labor-related expenses are recalculated periodically; therefore,
percentages vary from time to time.
Renewable Resource Energy Purchase Agreement - Page 12
(iii) "Subcontractor Costs" are the costs incurred by TU Electric for
work, including materials supplied, by TU Electric's contractors.
(iv) "Purchasing and Stores Expense" is a percentage charge applied to
material costs to cover TU Electric's cost of supervision, labor,
and expenses incurred in operating and maintaining its storeroom and
purchasing offices. The charge must be the same as that applied by
TU Electric to its material costs to calculate the costs of its new
construction, and is redetermined periodically following TU
Electric's established accounting procedures using the uniform
system of accounts prescribed by the Federal Energy Regulatory
Commission. The charge includes Texas state and local sales and use
taxes.
(v) "Transportation Costs" are priced at the cost per mile or per hour
dependent upon the type of equipment being used at the rates TU
Electric charges for its own accounting purposes. The per mile and
per hour rates are recalculated periodically; therefore, rates may
vary from time to time.
(vi) "Carrying Costs" is interest at the Commercial Paper Rate on
construction expenditures from the date the expenses are incurred
until the expenses are billed.
(vii) "Miscellaneous Expense" includes actual expenditures that are not
included in the other items of Actual Cost described in this
Section. Examples of these costs are engineering consultant
expenses, crew lodging and travel expense, laboratory tests and
equipment rental, including charges for using TU Electric's major
tools or major equipment.
(viii) "Overhead" is a percentage charge to recover TU Electric's costs of
design, engineering, supervision, and other applicable costs and
overhead. The charge must be the same as that applied by TU Electric
to calculate its costs of its new construction and is redetermined
periodically following TU Electric's established accounting
procedures using the uniform system of accounts prescribed by the
Federal Energy Regulatory Commission.
Actual Cost is the sum of Material Costs, Labor Costs, Subcontractor Costs,
Purchasing and Stores Expense, Transportation Costs, Carrying Costs, and
Miscellaneous Expense plus Overhead and an additional amount to compensate
TU Electric fully for any type of taxation or assessment of amounts paid by
Producer to TU Electric.
(e) Producer shall reimburse TU Electric for ad valorem taxes paid on the
Interconnection Facilities. The amount of ad valorem taxes on the
Interconnection Facilities for purposes of this Agreement is a portion of
TU Electric's total ad valorem taxes in ▇▇▇▇▇▇ County, Texas, as reasonably
determined by TU Electric's tax department based on the facilities owned by
TU Electric that are related to the Renewable Resource Facility.
3.03 Regulatory Action and Recoupment.
Renewable Resource Energy Purchase Agreement - Page 13
(a) The parties intend that the prices set in this Agreement will be in effect
during the term of this Agreement, and they do not, by anything in this
Agreement, confer authority or jurisdiction upon any court or regulatory
authority, that it otherwise would not have, to change such prices. If,
however, at any time during the term of this Agreement, any court or
regulatory authority, including without limitation the Public Utility
Commission of Texas, alters the prices for energy purchases from Producer
under this Agreement or the payments by TU Electric resulting from those
prices, then the prices under this Agreement and the payments resulting
from those prices must thereafter be adjusted to the prices and payments
allowed by the court or regulatory authority.
(b) TU Electric's obligations to make payments to Producer under this
Agreement are conditioned upon TU Electric being permitted by the Public
Utility Commission of Texas or other regulatory authority to fully recoup
from TU Electric's ratepayers the payments made to Producer under this
Agreement. If the orders, rules, or regulations of the Public Utility
Commission of Texas or other regulatory authority do not allow the
recovery by TU Electric from its ratepayers of all of the payments
otherwise to be made by TU Electric to Producer under this Agreement, then
TU Electric is not obligated to pay to Producer any amount that is not
subject to recovery; however, nothing in this Section 3.03 may be
construed as requiring Producer to refund to TU Electric any amounts
previously paid to Producer that become non-recoverable by TU Electric on
account of any such orders, rules, or regulations of the Public Utility
Commission of Texas or other regulatory authority.
(c) If the Public Utility Commission of Texas or other regulatory
authority--by order, rule, or regulation--ever fails to allow TU Electric
to fully recoup payments that TU Electric has made to Producer under this
Agreement from TU Electric's ratepayers, or if the Public Utility
Commission of Texas or other regulatory authority--by order, rule, or
regulation--ever raises the prices under this Agreement, then TU Electric
may terminate this Agreement by giving written notice of such termination
to Producer within one year after the order, rule, or regulation effecting
such disallowance or pricing increase becomes final and appealable,
whether or not an appeal is filed.
(d) If the Public Utility Commission of Texas or other regulatory authority
ever lowers, either directly or through a regulatory disallowance--by
order, rule, or regulation--the prices under this Agreement, then Producer
may terminate this Agreement by giving written notice of such termination
to TU Electric within one year after the order, rule, or regulation
effecting such disallowance or pricing decrease becomes final and
appealable, whether or not an appeal is filed.
(e) Future prices for energy payments under this Agreement must be adjusted to
the recoupment levels allowed by the Public Utility Commission of Texas or
other regulatory authority or to the prices required by the Public Utility
Commission of Texas or other regulatory authority.
(f) Despite the other provisions of this Section:
Renewable Resource Energy Purchase Agreement - Page 14
(i) a party may not terminate this Agreement on the basis of a
disallowance or pricing alteration as described above if the order,
rule, or regulation effecting such disallowance or pricing
alteration was the result of a proceeding initiated by that party,
directly or indirectly, for the purpose of requesting or obtaining
such disallowance or pricing alteration;
(ii) the future prices for energy payments under this Agreement may not
be lowered on the basis of a disallowance or pricing decrease as
described above if the order, rule, or regulation effecting such
disallowance or pricing decrease was the result of a proceeding
initiated by TU Electric, directly or indirectly, for the purpose of
requesting or obtaining such disallowance or pricing decrease; and
(iii) the future prices for energy payments under this Agreement may not
be increased on the basis of a pricing increase as described above
if the order, rule, or regulation effecting such disallowance or
pricing increase was the result of a proceeding initiated by
Producer, directly or indirectly, for the purpose of requesting or
obtaining such disallowance or pricing increase.
3.04 Cooperation. In connection with any proceeding that might result in a
reduction in the level of energy payments as described Section 3.03, TU Electric
agrees that it will not oppose the intervention of Producer in such proceeding
and that it will provide reasonably available information to Producer in order
to assist Producer in defending the terms of this Agreement.
3.05 Governmental Impositions. Producer shall pay to TU Electric, as they may
occur, amounts equal to any taxes, assessments, or other governmental
impositions that TU Electric is required to pay because of its purchase of
electrical energy under this Agreement.
3.06 Records.
(a) TU Electric shall create and keep (i) meter records and other records
needed to show the energy generated at the Renewable Resource Facility and
delivered to TU Electric, and (ii) records of its costs and expenses
chargeable to Producer under this Agreement.
(b) Producer shall create and keep (i) meter records and other records needed
to show the energy generated at the Renewable Resource Facility and (ii)
maintenance records and operating logs of the generating, control, and
protective equipment at the Renewable Resource Facility. Producer shall
also create and keep records of parameters that materially affect the
production of electrical energy by the Renewable Resource Facility (for
example, wind profiles, etc.) as well as certain operating cost
information as described on Exhibit 3.06(b). Producer agrees to share this
information with TU Electric upon request, along with a summary
description of operations and maintenance problems incurred and actions
taken to mitigate the problems, and TU Electric may use the information
for its own purposes, subject to the confidentiality provisions in Article
8 of this Agreement.
(c) Each party shall maintain the records that it is required to create and
keep under this Section according to generally accepted accounting
principles, consistently applied. Each party shall keep and maintain those
records for four years after the respective
Renewable Resource Energy Purchase Agreement - Page 15
records are created, and the other party may inspect and audit those
records during normal business hours upon reasonable advance written
notice.
3.07 Billing.
(a) TU Electric shall read the meters in the Interconnection Facilities
monthly. Within 30 days after the end of a month, TU Electric shall send
to Producer a statement detailing all amounts due from TU Electric to
Producer, based upon the meters in the Interconnection Facilities, and all
amounts due from Producer to TU Electric under this Agreement for the
month. If the 30 days end on a day that is not a Business Day, then the
period allowed for sending the above-described statement is extended to
the end of the next day that is a Business Day. A "Business Day" is any
day that is not a Saturday, Sunday, or a holiday observed by TU Electric's
Dallas office.
(b) TU Electric may offset payments due by Producer to TU Electric, including
without limitation amounts due under Article 3, against payments due by TU
Electric to Producer. Payment of any net amount shown to be due by TU
Electric to Producer must be included with the statement. If the statement
shows a net amount due from Producer to TU Electric, the payment is past
due if not made within 20 days after the date the statement is sent.
3.08 Interest on Past Due Bills. Any bills sent by TU Electric to Producer under
this Agreement that are not paid when due and any payments due by TU Electric to
Producer that are not paid when due bear interest, compounded monthly, from the
due date until paid, at the Commercial Paper Rate in effect on the first
Business Day of each calendar month in which interest accrues. "Commercial Paper
Rate" means the lesser of (i) the rate published weekly in the Federal Reserve
Statistical Release for "one month commercial paper" or (ii) the highest rate
permitted by applicable law. If the Federal Reserve Statistical Release is not
published or is otherwise not available, then a weekly average rate must be
determined from the Wall Street Journal for high grade unsecured notes sold
through dealers by major corporations or another recognized financial
publication for similar instruments. In computing the highest rate allowed by
applicable law, the indicated rate ceiling computed under Article
5069-1.04(a)(1) of the Texas Revised Civil Statutes applies.
3.09 Corrections. If either party to this Agreement discovers an error in
▇▇▇▇▇▇▇▇ and payments under this Agreement due to metering or billing errors,
then the ▇▇▇▇▇▇▇▇ and payments must be corrected, provided that the party
asserting the error gives the other party notice of the error within one year
after the date of the ▇▇▇▇ or payment. Any corrections shall include interest at
the Commercial Paper Rate from the date that the incorrect payment was made
until the date of the corrected ▇▇▇▇ or corrected payment, as the case may be.
Article 4. Outages
4.01 Outages.
Renewable Resource Energy Purchase Agreement - Page 16
(a) The Renewable Resource Facility, Interconnection Facilities, and TU
Electric's transmission and distribution system will suffer, from time to
time, scheduled outages for construction, maintenance, repairs, or
inspection.
(b) The Renewable Resource Facility, Interconnection Facilities, and TU
Electric's transmission and distribution system will be subject, from time
to time, to forced outages. Forced outages include any reduction or
cessation of generation, transmission, or distribution caused by breakage
or malfunction of equipment, machinery, and facilities, or by storm,
casualty, emergency condition, or other unforeseen causes. Producer and TU
Electric shall promptly give notice to the other of any forced outage.
4.02 No Liability. Neither party violates this Agreement due to, or is liable to
the other for damages caused by, interruptions or curtailments of the delivery
or receipt of energy generated at the Renewable Resource Facility due to either
a scheduled outage or a forced outage described in Section 4.01, even if the
interruption or curtailment is caused, in whole or in part, by a party's
negligence. This does not limit a party's liability for intentional misconduct.
A party shall diligently perform scheduled maintenance on its facilities and
shall diligently pursue correction of forced outages of its facilities.
Article 5. Insurance and Indemnity
5.01 Proof of Coverage.
(a) During the term of this Agreement, and after that as provided in this
Article 5, Producer shall provide or cause to be provided to TU Electric
proof of the insurance required by Section 5.03 by providing two copies of
an insurance certificate in a form acceptable to TU Electric, certified by
Producer's insurance broker or insurance company representative, as well
as certified copies of all required insurance policies.
(b) Producer shall give TU Electric an opinion letter from Producer's
insurance agent or from Producer's legal counsel, confirming that the
insurance policies evidenced in the certificates provide all coverages
required by this Agreement.
(c) Producer shall give the initial certificates, opinion letters, and
certified copies of policies to TU Electric at the earliest practical time
after execution of this Agreement. Producer shall give copies of all
subsequent certificates, subsequent opinion letters, and certified copies
of all subsequent policies to TU Electric at the earliest practical time,
but never later than 30 days before the then-current policy expires.
Certificates and policies must provide that TU Electric must be given
written notice at least 60 days before any material change in, or
cancellation of, any insurance required by this Article.
5.02 Policies.
(a) All policies must be written with insurers with an A.M. Best rating of
"B+, VII" or better or, for insurers not rated by A.M. Best, the insurers
must be of a quality
Renewable Resource Energy Purchase Agreement - Page 17
equivalent to that of an A.M. Best rating of "B+, VII" or better, as
decided by TU Electric in its sole discretion.
(b) All liability policies must (i) be written on an occurrence basis, unless
an occurrence basis policy becomes unavailable, (ii) include TU Electric,
TU Electric's parent corporation and affiliates, and their respective
directors, officers, shareholders, agents, servants, and employees ("TU
Electric Group") as named insureds, (iii) provide that each insured is
provided coverage as though a separate policy had been issued to each,
except the insurer's liability must not be increased beyond the amount or
amounts for which the insurer would have been liable had only one insured
been covered, and only one deductible applies per occurrence, no matter
the number of insureds, and (iv) provide that TU Electric and the other
named insureds specified above are never responsible for premium payment.
If Producer does not obtain occurrence basis policies throughout the term
of this Agreement, then Producer shall maintain all coverages required in
Section 5.03 in effect for four years after this Agreement terminates or
expires.
(c) All policies other than Workers' Compensation Insurance must contain an
endorsement (if the terminology is not in the printed form) that
Producer's policy is primary in all instances despite like coverages, if
any, carried by TU Electric.
5.03 Coverage and Liability Limits. Producer at its sole expense shall, during
the term of this Agreement and for a period of two years after the termination
or expiration of this Agreement, obtain and maintain the following types of
coverage and liability limits. The required limits may be satisfied by any
combination of primary or excess insurance in Producer's sole discretion:
(a) Employer's Liability Insurance and Worker's Compensation Insurance
providing statutory benefits in accordance with the laws and regulations
of the State of Texas. The limits for Employer's Liability Insurance shall
be at least $1 million per accident, $1 million per employee by disease,
and $1 million policy limit by disease.
(b) General Liability Insurance including premises and operations, personal
injury, broad form property damage, broad form blanket contractual
liability, including coverage for the indemnification provisions in the
Agreement, products and completed operations coverage, coverage for
explosion, collapse and underground hazards and independent contractors
coverages, with minimum limits of $1 million per occurrence for bodily
injury including death, and property damage combined.
(c) Automobile Liability Insurance for coverage of owned, non-owned and hired
automotive equipment, with a minimum combined single limit of $1 million
per occurrence for bodily injury and property damage.
(d) Excess Liability Insurance over and above the Employer's Liability,
General Liability and Automobile Liability Insurance policies listed
above, with total Excess Liability coverage of $25 million.
Renewable Resource Energy Purchase Agreement - Page 18
5.04 Subcontractor Coverage. Producer shall require all of its contractors and
subcontractors to provide adequate insurance coverage that meets the provisions
of Section 5.02(b) above. Any deficiencies in the insurance provided by those
contractors and subcontractors are the sole responsibility of Producer, and
Producer is liable for any deficiencies in the insurance provided by any
contractor or subcontractor.
5.05 Reporting. Producer shall report to TU Electric, in writing, as soon as
practical, all accidents or occurrences resulting in injuries, including death,
and any property damage arising out of the performance of this Agreement.
5.06 Release and Waiver. Producer shall release, and shall require its insurers
(by policy endorsement) to waive their subrogation rights against any member of
the TU Electric Group for loss under the insurance policies described in this
Article, damages to Producer's properties, and any other loss sustained by
Producer, whether insured or not.
5.07 No Liability Limitation. Producer's liability under this Agreement is not
limited to the amount of insurance coverage required in this Article.
5.08 Indemnification.
(a) Producer agrees to and shall defend, protect, indemnify and hold harmless
TU Electric Group from and against all claims, losses, expenses, damages,
demands, judgments, causes of action, suits, and liability in tort,
contract, or any other basis and of every kind and character whatsoever
(hereinafter in this and the following paragraphs collectively referred to
as "CLAIMS"), for personal injury, death, or property damage of Producer,
Producer's parent and subsidiary corporations, all officers, directors,
shareholders, owners, employees, affiliated or related firms and entities,
servants and agents of each ("Producer Group") arising out of or incident
to, directly or indirectly, this Agreement, including but not limited to,
CLAIMS arising out of or resulting from (1) any condition of the
Producer's premises, (2) separate operations being conducted on the
Producer's premises, or (3) the imperfection or defective condition,
whether latent or patent, of any material or equipment sold, supplied, or
furnished by any member of the TU Electric Group and further, it is the
express intent of the parties that, for the purposes of this paragraph,
CLAIMS, and Producer's obligations to defend, protect, indemnify and hold
harmless, will include, but not be limited to, CLAIMS arising out of or
resulting from any member of TU Electric Group's sole or concurrent (1)
negligence, (2) strict liability, or (3) other fault of any nature.
(b) For all CLAIMS except those for personal injury, death or property damage
of those persons or entities within the scope of the preceding paragraph,
Producer agrees to and shall defend, protect, indemnify, and hold harmless
TU Electric Group from and against any and all CLAIMS arising out of or
incident to, directly or indirectly, this Agreement, including but not
limited to, CLAIMS arising out of or resulting from (1) any condition of
the Producer's premises, (2) separate operations being conducted on the
Producer's premises, or (3) the imperfection or defective condition,
whether latent or patent, of any material or equipment sold, supplied, or
furnished by any member of the TU Electric Group; and further, it is the
express intent of the parties that, for the purpose of this
Renewable Resource Energy Purchase Agreement - Page 19
paragraph, CLAIMS, and Producer's obligations to defend, protect,
indemnify and hold harmless, shall include, but not be limited to, CLAIMS
arising out of or resulting from any member of TU Electric Group's
concurrent (1) negligence, (2) strict liability, or (3) other fault of any
nature.
(c) Producer shall pay all costs and expenses, including reasonable attorneys'
fees, arising from any CLAIM as to which a person or entity is indemnified
under this Section 5.08.
(d) Nothing in this Section limits a party's liability for intentional
misconduct or requires Producer to indemnify TU Electric for claims for TU
Electric's intentional misconduct.
5.09 Survival of Article. This Article survives the termination or expiration of
this Agreement.
Article 6. Term and Uncontrollable Force
6.01 Term.
(a) This Agreement is effective on the date first stated above, and unless
terminated earlier under other provisions of this Agreement it will
continue in effect for 15 years from the Commercial Operation Date or, if
either the option under Section 6.02(a) or the option under Section
6.02(c) is exercised, until 20 years after the Commercial Operation Date,
or, if either the option under Section 6.02(b) or the option under Section
6.02(d) is exercised, until 25 years after the Commercial Operation Date.
(b) If Producer has failed to attain Commercial Operation status on or before
the latest of (i) November 30, 1996, (ii) 18 months after the Public
Utility Commission of Texas approves a CCN for the Interconnection
Facilities, and (iii) 18 months after the Public Utility Commission of
Texas approves this Agreement to both parties' satisfaction, then TU
Electric has the option to immediately terminate this Agreement upon
written notice to Producer.
(c) If Producer ceases to deliver energy to TU Electric from the Renewable
Resource Facility for a period exceeding 45 consecutive days, exclusive of
failures to deliver energy caused by outages of facilities on TU
Electric's side of the Point of Interconnection, then TU Electric has the
option to terminate this Agreement upon written notice to Producer,
subject to Producer's cure rights under Section 6.06.
6.02 Option to Extend Term.
(a) TU Electric, at its option, may extend the term of this Agreement to a
date that is 20 years after the Commercial Operation Date. TU Electric may
exercise this option by giving Producer written notice at any time between
a date that is 13 years after the Commercial Operation Date and a date
that is 14 years after the Commercial Operation Date. If TU Electric
exercises this option, payments by TU Electric to Producer for
Renewable Resource Energy Purchase Agreement - Page 20
electrical energy must be made at rates that are 0.5% higher in each
calendar year than the rate in effect in the immediately preceding
calendar year.
(b) If TU Electric has extended the term of this Agreement by exercising its
option under Section 6.02(a), then TU Electric, at its option, may extend
the term of this Agreement to a date that is 25 years after the Commercial
Operation Date. TU Electric may exercise this option by giving Producer
written notice at any time between a date that is 18 years after the
Commercial Operation Date and a date that is 19 years after the Commercial
Operation Date. If TU Electric exercises this option, payments by TU
Electric to Producer for electrical energy must be made at rates that are
0.5% higher in each calendar year than the rate in effect in the
immediately preceding calendar year.
(c) If TU Electric does not exercise its option under Article 9, and if TU
Electric does not exercise its option under Section 6.02(a), then Producer
may extend this Agreement to a date that is 20 years after the Commercial
Operation Date. Producer may exercise this option by giving TU Electric
written notice at any time between a date that is 14 years after the
Commercial Operation Date and a date that is 14 years and six months after
the Commercial Operation Date. If Producer exercises this option, payments
by TU Electric to Producer for electrical energy must be made at rates
that are at TU Electric's Rate LPP or its successor tariff, or if no such
tariff exists at that time, then at rates that are 95% of TU Electric's
avoided energy costs, determined monthly.
(d) If TU Electric does not exercise its option under Article 9, and if TU
Electric does not exercise its option under Section 6.02(b), and if
Producer has exercised its option under Section 6.02(c), then Producer may
extend this Agreement to a date that is 25 years after the Commercial
Operation Date. Producer may exercise this option by giving TU Electric
written notice at any time between a date that is 19 years after the
Commercial Operation Date and a date that is 19 years and six months after
the Commercial Operation Date. If Producer exercises this option, payments
by TU Electric to Producer for electrical energy must be made at rates
that are at TU Electric's Rate LPP or its successor tariff, or if no such
tariff exists at that time, then at rates that are 95% of TU Electric's
avoided energy costs, determined monthly.
6.03 Regulatory Approval. Producer may not deliver any energy to the TU Electric
system at any rate other than Rate LPP until the Public Utility Commission of
Texas (i) approves this Agreement, (ii) grants an exception to its substantive
rules that allows TU Electric to recover the payments that it makes to Producer
under this Agreement through a purchased power cost recovery factor, and (iii)
makes findings of fact and conclusions of law that are reasonably satisfactory
to both Producer and TU Electric. Findings of fact and conclusions of law that
are reasonably satisfactory include without limitation findings of fact and
conclusions of law that are substantially the same as the following:
The prices, terms, and conditions of this Agreement were reasonable at the
time this Agreement was entered into.
This Agreement is a voluntary contractual arrangement between TU Electric
and Producer.
Renewable Resource Energy Purchase Agreement - Page 21
Purchase of renewable energy at the level provided under this Agreement is
a reasonable and appropriate component of TU Electric's 1995 Integrated
Resource Plan.
The reasonableness and necessity of the prices, terms, and conditions of
this Agreement and of TU Electric's decision to enter into this Agreement
are properly determined based on the facts and circumstances existing at
the time this Agreement was entered into.
The prices, terms, and conditions of this Agreement and TU Electric's
entry into this Agreement were prudent and reasonable, given the
information and alternatives available to TU Electric at the time at which
this Agreement was entered into.
TU Electric's action in entering into this Agreement was reasonable and in
the public interest.
The pricing provisions and other terms of this Agreement are more
favorable to TU Electric's customers than other proposed projects
available to TU Electric from renewable resources of like technology.
The price premium on electrical energy to be purchased by TU Electric
under this Agreement, relative to conventional fossil-fueled generation
that it will displace, is reasonable in light of the benefits that this
Agreement will provide on the whole.
The contingencies in this Agreement are reasonable.
The payments that TU Electric will make to Producer under this Agreement
are reasonable and necessary operating expenses of TU Electric.
Good cause exists to grant an exception to the Public Utility Commission
of Texas Substantive Rule 23.23, which exception allows the payments to be
made by TU Electric to Producer under this Agreement to be recovered under
a purchased power cost recovery factor.
If such approval, granting of an exception, findings of fact, and conclusions of
law are not obtained in a form that is reasonably satisfactory to both Producer
and TU Electric by the later of (i) May 1, 1995, or (ii) 270 days after TU
Electric files an application requesting approval of this Agreement by the
Public Utility Commission of Texas, then either party may immediately terminate
this Agreement upon written notice to the other party sent on or before the
later of (i) June 1, 1995, or (ii) 300 days after TU Electric files an
application requesting approval of this Agreement by the Public Utility
Commission of Texas. In the event of a termination under this Section, Producer
shall pay any Interconnection Costs, or other costs, due to TU Electric under
other provisions of this Agreement, in accordance with Article III. In lieu of
terminating this Agreement, either party may elect, by a written notice given to
the
Renewable Resource Energy Purchase Agreement - Page 22
other party on or before the later of (i) July 1, 1995, or (ii) 330 days after
TU Electric files an application requesting approval of this Agreement by the
Public Utility Commission of Texas, to substitute the energy prices set out in
TU Electric's Rate LPP for the energy prices set out in this Agreement. If the
party receiving such a notice is not willing to proceed with this Agreement at
the energy prices set out in Rate LPP, then it can terminate this Agreement upon
written notice given to the other party sent on or before the later of (i)
August 1, 1995, or (ii) 360 days after TU Electric files an application
requesting approval of this Agreement by the Public Utility Commission of Texas.
6.04 Insolvency. Besides the other causes for termination provided in this
Agreement, a party (the "terminating party") may terminate this Agreement
immediately upon written notice to the other party (the "insolvent party"),
without any liability or responsibility under this Agreement, and without
prejudice to any other power, right, or remedy that the party may have under
this Agreement, if (a) the insolvent party files a voluntary petition under the
bankruptcy or insolvency laws, (b) an involuntary proceeding is initiated
against the insolvent party under the bankruptcy or insolvency laws, which
involuntary proceeding remains undismissed for 180 consecutive days, or (c) the
insolvent party cannot meet its debts in the ordinary course of business.
However, this Agreement does not terminate if, within 10 days after the
insolvent party receives written notice of the proposed termination, the
insolvent party, as debtor-in-possession, or the insolvent party's trustee,
receiver, assignee, or custodian, whichever is obligee under this Agreement, in
writing affirms this Agreement and proves, to the terminating party's
satisfaction, the ability to fulfill the insolvent party's obligations under
this Agreement.
6.05 Uncontrollable Force.
(a) An "Uncontrollable Force" is an act of God, strike, lockout, shortage of
material or labor, restriction by any governmental authority, civil riot,
flood, or any other cause not within the reasonable control of the party.
(b) If either party is wholly or partly unable to perform any of its
obligations under this Agreement, including without limitation Producer's
obligation to attain Commercial Operation status by a date certain under
Section 6.01(b), because of Uncontrollable Force, that party is excused to
the extent that its performance is affected by the Uncontrollable Force
if:
(i) the nonperforming party gives the other party, within 14 days after
the Uncontrollable Force begins, written notice describing the
particulars of the Uncontrollable Force;
(ii) the nonperforming party gives the other party, within 30 days after
the Uncontrollable Force begins, a written explanation of the
Uncontrollable Force and its effect on the nonperforming party's
performance;
(iii the suspension of performance is of no greater scope and of no
longer duration than the Uncontrollable Force requires; and
Renewable Resource Energy Purchase Agreement - Page 23
(iv the nonperforming party uses its reasonable efforts to remedy its
inability to perform.
When the nonperforming party can resume performance of its obligations
under this Agreement, that party shall give the other party written notice
to that effect.
(c No Uncontrollable Force condition extends this Agreement's term.
(d Any excuse of non-performance due to an Uncontrollable Force condition
cannot last longer than 180 days except upon the performing party's
written consent, which the performing party may give or withhold in its
sole discretion. If the Uncontrollable Force condition is not removed
within 180 days, then Uncontrollable Force ceases to excuse
non-performance.
(e TU Electric may exercise the rights granted in Sections 2.06(c) and
2.06(d) if Producer violates Section 2.06, even though an Uncontrollable
Force caused the violation.
6.06 Termination.
(a If:
o either party materially breaches any warranty it makes in this
Agreement, or
o either party materially fails to fulfill any obligation it has under
this Agreement, or
o if any representation either party makes in this Agreement becomes,
after the date of this Agreement, materially inaccurate, or is
discovered to have not been materially accurate when made,
then the party to whom the representation or warranty was made, or to whom
the obligation was due, (the "Non-defaulting Party") may, besides any
other remedies that may be available at law or in equity, terminate this
Agreement upon 30 days advance written notice to the other party (the
"Defaulting Party"), the 30 days commencing with the date of the other
party's receipt of the notice. If, by the end of the 30-day period, the
Defaulting Party has cured the breach, misrepresentation, or default, then
the default ceases to exist, and this Agreement is not terminated. For any
breach, misrepresentation, or default other than the payment of money, if
breach, misrepresentation, or default cannot reasonably be cured within 30
days, and if the Defaulting Party begins work or other efforts to cure the
breach, misrepresentation, or default within 30 days after receipt of the
notice and then prosecutes the curative work with reasonable diligence
until the curative work is completed, and if as a result the breach,
misrepresentation, or default is cured within 90 days after the receipt of
the notice, then the breach, misrepresentation, or default specified in
the notice ceases to exist, and this Agreement is not terminated.
(b The rights to terminate in Section 6.06(a) are in addition to the rights
to terminate this Agreement given in the following Sections of this
Agreement, and the rights of a party to cure a default under Section
6.06(a) do not apply to termination rights given in, the following
Sections of this Agreement: 1.03(e), 2.06(c), 3.03(c), 3.03(d), 6.01(b),
6.03, and 6.04.
Renewable Resource Energy Purchase Agreement - Page 24
(c A person that is providing debt or equity financing for Producer in
connection with the Renewable Resource Facility may cure any of Producer's
defaults under this Agreement, and the effect of that cure is the same as
if Producer had cured the default.
6.07 No Consequential Damages. Except as otherwise provided in Section 5.08,
neither party is liable to the other for any special, indirect, or consequential
damages or injury that may occur, in whole or in part, as a result of the breach
of any contract, a tort, or any other cause, whether or not a party had
knowledge of the circumstances that resulted in the special, indirect, or
consequential damages, or could have foreseen that such damages would occur.
Special, indirect, or consequential damages include--as representative examples
and without limiting the phrase--lost profits, lost production time, lost
business, lost work-in-process, claims of customers, replacement power, value of
employees' lost time, delayed production of goods, loss of goodwill, increased
costs, increased interest expense, and inability to make required payments.
Article 7. Representations and Warranties
7.01 Representations and Warranties. Besides the other representations,
obligations, and warranties of Producer, Producer now represents and warrants
unconditionally to TU Electric that:
(a Producer is a limited partnership duly organized, validly existing, and in
good standing under Delaware law and is duly authorized to do business in
Texas.
(b Producer has full power and lawful authority to accomplish, execute, and
fulfill all of its obligations and duties under this Agreement.
(c The Renewable Resource Facility is a Qualifying Facility, as that term is
used and defined in 18 C.F.R. (Code of Federal Regulations) Part 292 as of
the date of this Agreement, and Producer shall provide TU Electric with
certification by the Federal Energy Regulatory Commission of that
qualifying status under 18 C.F.R.ss.292.207(b) before the Partial
Commercial Operation Date. Producer covenants that it shall maintain the
Renewable Resource Facility as a Qualifying Facility.
(d Producer and New World will use reasonable efforts to obtain rights to
manufacture and sell the Enercon model E-40, 500 kW wind turbine generator
in North America. Upon request by TU Electric, Producer shall give TU
Electric documentation showing those reasonable efforts and their results.
(e If either Producer, or New World, or any affiliate of New World is
successful in obtaining rights to manufacture the Enercon model E-40, 500
kW wind turbine in North America and such rights result in a material
favorable reduction in overall project costs as a result of the
elimination of import duties or transportation costs, then Producer shall
Renewable Resource Energy Purchase Agreement - Page 25
negotiate in good faith with TU Electric to arrive at a mutually
satisfactory arrangement to share any savings arising from such reduction
in costs.
(f New World has established a business alliance with Westinghouse Electric
Corporation. Producer and New World will use reasonable efforts to use the
Westinghouse facility in Round Rock, Texas, or other facilities in TU
Electric's service area for fabrication of the wind turbines to the
fullest extent economically practical. Upon request by TU Electric,
Producer shall give TU Electric documentation showing those reasonable
efforts and their results.
(g Producer will use the services of vendors located within the TU Electric
service area to the extent economically practical. Producer will solicit
and consider bids from such local vendors for work and materials such as
anchor bolts, steel support structures, electrical equipment, road
construction, etc. Upon request by TU Electric, Producer shall give TU
Electric documentation showing that its use of vendors in TU Electric's
service area was to the extent economically practical.
(h Producer will ensure that minority-owned and women-owned businesses have
equal opportunities to participate in its purchase of materials and
services for, and its construction, operation, and maintenance of, the
Renewable Resource Facility. Upon request by TU Electric, Producer shall
give TU Electric documentation showing the steps that it has taken to
ensure such equal opportunities and the results of those steps.
(i The major items installed (i.e., wind turbines, power conditioning
equipment, etc.) at the Renewable Resource Facility are newly manufactured
and state-of-the-art technology.
(j If technology improves, and Producer, in its sole judgement, decides to
retrofit the Renewable Resource Facility with improved, more economical,
or more efficient technology, and if TU Electric approves the proposed
retrofit under Section 1.05(c), Producer will share the savings with TU
Electric. In that event, Producer and TU Electric agree to negotiate in
good faith about a methodology to share those savings.
(k Producer will use its best efforts to ensure that the Commercial Operation
Date occurs no later than 90 days after the Phase One Commercial Operation
Date. Upon request by TU Electric, Producer shall give TU Electric
documentation showing those best efforts and their results.
(l Producer will use its reasonable efforts to assure that the Renewable
Resource Facility is maintained in accordance with prudent industry
utility practices for the same or similar facilities.
Article 8. Confidentiality
Renewable Resource Energy Purchase Agreement - Page 26
8.01 Scope. Information that qualifies as Confidential Information is trade
secret information that concerns the internal aspects of the Renewable Resource
Facility, such as cost of materials, cost of equipment, pro formas, certain
third party agreements, and site-specific wind profiles. Information that
directly affects TU Electric or its customers--such as the quantities of
electrical energy produced or to be produced, the prices for electrical energy,
amounts paid, and the terms and conditions of this Agreement--cannot be claimed
to be Confidential Information, and TU Electric does not agree to keep it
confidential.
8.02 Obligation. TU Electric agrees-for itself, its parent, subsidiary, and
affiliated corporations, and their respective directors, officers, employees,
and representatives, including without limitation, attorneys, accountants, and
consultants (all collectively called "Affiliated Persons")--that it will
exercise its best efforts to avoid distributing or disclosing Confidential
Information, as defined above, to any person, corporation, or entity other than
TU Electric's Affiliated Persons, except as follows:
(a TU Electric may disclose Confidential Information under the valid order of
an administrative or judicial officer having jurisdiction. TU Electric
must oppose such an order unless opposition to it is waived in writing by
Producer, which waiver may not be unreasonably withheld. TU Electric is
not required to oppose any order requiring disclosure in any judicial or
administrative proceeding by appeal, separate legal proceeding, or
extraordinary measures if TU Electric gives Producer written notice of the
order, and Producer does not, within 10 days after receiving the notice,
agree to pay the reasonable costs (including attorney's fees) of any
opposition by appeal, separate legal proceeding, or extraordinary
measures.
(b TU Electric may disclose Confidential Information to governmental or
regulatory officials or the public as required by any law, regulation, or
order, including without limitation laws or regulations requiring
disclosure of financial information, information material to financial
matters, and filing of financial reports, but TU Electric shall make
reasonable efforts to restrict public access to the documents or other
information disclosed, by protective order or otherwise.
(c TU Electric may disclose Confidential Information as it deems necessary or
advisable to state and recover its costs through its rates from its
customers or to obtain any other regulatory approval or action that it
deems necessary or advisable, but TU Electric shall make reasonable
efforts to restrict public access to the documents or other information
disclosed, by protective order or otherwise.
TU Electric's obligations under this Article do not apply to any information (1)
that is already in, or that comes into, the public domain, (2) that is in TU
Electric's possession before Producer's response is submitted, or (3) that TU
Electric obtains from other sources.
8.03 Term. TU Electric's obligations to not disclose or distribute the
Confidential Information are effective for 21 years from the date of this
Agreement. TU Electric may terminate its obligation as to any Confidential
Information at any time before that by returning the Confidential Information to
Producer. Such an early termination only affects the
Renewable Resource Energy Purchase Agreement - Page 27
Confidential Information returned and does not affect TU Electric's obligations
as to other Confidential Information in its possession.
Article 9. Option to Purchase
9.01 Grant of Option. When the term of this Agreement expires, TU Electric may,
at its option, purchase the Renewable Resource Facility, associated facilities,
all of Producer's land rights and interests in land associated with the
Renewable Resource Facility, including without limitation easements for ingress
and egress, rail transportation, electric transmission and distribution
facilities, communication lines, and other utility services (collectively the
"Property") and all contracts, contract rights, and legal rights associated with
the Property (the "Contract Rights"), as provided after this. If this Agreement
expires under its terms, the option period is 150 days, commencing one year
before the term of this Agreement expires. If this Agreement is terminated
before its stated term ends, then the option period is 150 days commencing on
the effective date of the termination. This option, this Article 9, and Section
10.04 of this Agreement survive the termination or expiration of this Agreement.
9.02 Information.
(a Producer shall give a copy of all of the following described documents to
TU Electric as soon as is reasonably practical:
(i documents concerning the financing and any refinancing of the
Renewable Resource Facility and any modifications to those
documents; and
(ii documents concerning the land rights and interests in land that are
associated with the Renewable Resource Facility and any
modifications to those documents.
(b TU Electric may request information as to the Renewable Resource Facility,
its costs of construction and operations, and other information pertinent
to exercise of any option:
(i during the thirteenth, fourteenth, and fifteenth years of the term
of this Agreement;
(ii if TU Electric exercises its first option to extend the term of this
Agreement, then during the eighteenth, nineteenth, and twentieth
years of the term of this Agreement;
(iii if TU Electric exercises its second option to extend the term of
this Agreement, then during the twenty-third, twenty-fourth, and
twenty-fifth years of the term of this Agreement; and
(iv if this Agreement is terminated earlier than its stated term, then
during the 210 days after the effective date of termination.
Renewable Resource Energy Purchase Agreement - Page 28
Producer must promptly furnish the information so requested and may never
furnish the information later than 30 days after it receives the request.
(c If Producer fails or refuses to furnish any information requested under
Section 9.02(b) within 30 days, then:
(i TU Electric has 60 days from the request to conduct any reasonable
investigation at Producer's expense to obtain the information; and
(ii the option period is automatically extended 30 days, making the
option period 180 days.
9.03 Manner of Exercise. TU Electric may exercise any option granted in this
Article by giving written notice to Producer before the end of the option
period. If TU Electric fails to give notice within that period, then the option
terminates.
9.04 Title. Title to be conveyed to the Property must be marketable title, free
and clear of all liens, encumbrances, restrictions, and easements created or
knowingly allowed by Producer.
9.05 Possession and Risk of Loss. Producer shall continue in possession of the
Property until closing and shall maintain it in its then-present condition,
reasonable wear from ordinary use excepted. Possession must be transferred to TU
Electric on closing. Risk of loss from fire or other casualty to the Property is
Producer's until transfer of possession. Producer shall maintain adequate
insurance against loss, including extended coverage, during that period. In case
of damage to the Property by fire or other casualty after TU has exercised one
of its options but before closing, TU Electric may either (a) terminate the
option by written notice to Producer, or (b) give Producer written notice that
the insurance proceeds are to be used to repair the Property, have the Fair
Market Value redetermined, and go forward with the purchase option. Producer
must transfer all insurance policies on the Property to TU Electric at closing,
at TU Electric's option.
9.06 Closing Date.
(a The purchase must be closed on or before the latest of (i) the first
business day following expiration of this Agreement, (ii) if this
Agreement is terminated earlier than its stated term, the first business
day that is 300 days after this Agreement is terminated earlier than its
stated term, and (iii) 15 days after determination of Fair Market Value
under Subsection 9.09(a)(i).
(b If final regulatory approval is not obtained by the closing date, as
extended, or if the approval is not satisfactory to TU Electric, it may
withdraw its exercise of the option without penalty or other liability.
9.07 Environmental Matters.
(a If the option described in Section 9.01 is exercised, then Producer shall,
within 90 days after delivery of the notice of exercise, secure and submit
to TU Electric an environmental report covering the Property issued by a
person who is satisfactory to TU
Renewable Resource Energy Purchase Agreement - Page 29
Electric. Within 10 days after that TU Electric shall give written notice
to Producer of any defects in or objections to the Property's
environmental condition described in that report, and Producer shall
remedy those defects and objections as soon as practicable but never later
than closing. If Producer does not remedy the defects and objections or
submit evidence of an ability and a plan to do so before closing, and the
failure continues for 120 days after the date the option was exercised,
then TU Electric may:
(i remedy the defects and objections to the extent so required before
closing and charge the cost of remedy to Producer; or
(ii terminate the option by giving written notice to Producer any time
before the closing date determined under Section 9.06.
(b Producer represents and warrants that the Property will comply with, at
closing, the following environmental conditions:
(i No Hazardous Materials are present on the Property except in a
manner acceptable to the United States Environmental Protection
Agency, the Texas Water Commission, the Texas Department of Health,
or the Texas Railroad Commission, or the successors of those
entities. "Hazardous Materials" means (A) any petroleum products,
radioactive materials, or any other substance or material defined as
a hazardous or toxic substance or waste by any federal, state, or
local law, ordinance, rule, or regulation, (B) any asbestos or
asbestos-containing substance, whether or not defined as hazardous
or toxic, and (C) industrial solid waste regulated by the Texas
Industrial Solid Waste Act or any successor or similar legislation.
(ii Producer has not been identified in any litigation, administrative
proceeding, or investigation as a potentially responsible party for
any liability under any federal, state, or local law, ordinance,
rule, regulation, or order with respect to the investigation,
generation, transportation, disposal, release, discharge, removal,
or remediation of Hazardous Materials at or from the Property.
(iii Other than in connection with the Renewable Resource Facility's
operation and in compliance with all applicable federal, state, and
local laws, ordinances, rules, regulations, and orders, none of the
Property contains, or is now, or ever has been, used by Producer to
generate, manufacture, refine, produce, treat, store, handle,
dispose of, transfer, process, build, or transport Hazardous
Materials.
(iv The Property complies with all applicable federal, state, and local
environmental standards and requirements affecting the Property and
has no environmental conditions that could interfere with the
Renewable Resource Facility's continued operation.
(v No underground storage tanks are or have been used to store
Hazardous Materials on the Property.
Renewable Resource Energy Purchase Agreement - Page 30
9.08 Closing. At closing, Producer shall convey to TU Electric the Property and
shall assign to TU Electric (and TU Electric shall assume) such of the Contract
Rights as TU Electric may elect. Taxes and assessments for the current year,
rentals under existing leases and tenancies, and payments under contracts being
assumed must be prorated between the parties as of the closing date.
9.09 Purchase Price.
(a (i The purchase price is the Property's Fair Market Value. "Fair Market
Value" must be determined according to industry standards for
similar facilities; current use and the value of Renewable Resource
Facility licenses and permits may be considered. No value may be
attributed because of this Agreement.
(ii (A0 If the parties have not agreed upon Fair Market Value by 120
days before this Agreement expires, then either TU Electric or
Producer may give written notice to the other requesting
determination of Fair Market Value by appraisal, and TU
Electric and Producer shall then consult to appoint a mutually
acceptable qualified independent appraiser.
(B0 If this Agreement is terminated before its stated expiration
date, then if the parties have not agreed upon Fair Market
Value within 20 days after this Agreement is terminated, then
either TU Electric or Producer may give written notice to the
other requesting determination of Fair Market Value by
appraisal, and TU Electric and Producer shall then consult to
appoint a mutually acceptable qualified independent appraiser.
(iii If the parties are unable to agree on an appraiser within 20 days
after the notice is given, then Fair Market Value must be determined
by a panel of three independent appraisers. TU Electric may select
one appraiser, and Producer may select another appraiser; however,
if either TU Electric or Producer fails to notify the other party in
writing of the appraiser it has selected within 30 days after the
notice is given, then the American Arbitration Association (or its
successor) must select an appraiser for that party. The two
appraisers selected shall select the third appraiser or, if they do
not agree on a third appraiser within 10 days after each of the two
appraisers has been selected, then the American Arbitration
Association (or its successor) must choose the third appraiser.
(iv The appraiser or appraisers appointed must be instructed to
determine the Fair Market Value within 45 days after the
appointment. The determination of the appraiser or appraisers is
final and binding upon the parties. If three appraisers are
appointed, the determination of the appraiser that differs most from
the second highest determination of all three appraisers must be
excluded, the remaining two determinations must be averaged, and
that average is the determination of the appraisers.
Renewable Resource Energy Purchase Agreement - Page 31
(v TU Electric shall pay the fees and expenses of the appraiser
appointed by or for TU Electric, Producer shall pay the fees and
expenses of the appraiser appointed by or for Producer, and the
parties shall each pay one-half of the fees and expenses of the
third appraiser.
(b TU Electric shall also assume Producer's obligations under any Contract
Rights that TU Electric elects to assume in its notice exercising its
option.
9.10 Assignment of Option. As long as TU Electric remains obligated to pay the
purchase price for the Property, TU Electric may assign any of its options,
before or after their exercise, to any wholly-owned subsidiary of Texas
Utilities Company or to any of its subsidiaries and one or more third parties or
to a partnership, corporation, or other entity owned by any of its subsidiaries
and one or more third parties.
9.11 Memorandum of Option. Producer shall execute, acknowledge, and deliver a
Memorandum of Option in the form attached as Exhibit 9.11 and agrees that TU
Electric may record the Memorandum in the records of the County Clerk in each
county in which the Property is located.
Article 10. Miscellaneous
10.01 Subject to Regulation. This Agreement may be subject to regulation by
regulatory authorities having jurisdiction. The parties do not intend by this
paragraph to confer or extend jurisdiction over this Agreement to any regulatory
authority.
10.02 Assignment. Producer may assign this Agreement for collateral security
purposes, but Producer may not otherwise assign this Agreement or any of its
rights, duties, or obligations under this Agreement without TU Electric's prior
written consent, which may not be unreasonably withheld or delayed. Any
attempted assignment that violates this Section is void and ineffective against
TU Electric. TU Electric may assign this Agreement, in whole or in part, to any
person or entity without obtaining Producer's consent. No assignment of this
Agreement releases the assignor from liability under this Agreement. This
Agreement inures to the benefit of and binds both (a) TU Electric, its
successors, and its assigns allowed under this Agreement, and (b) Producer, its
successors, and its assigns allowed under this Agreement.
10.03 Time Is of Essence. Time is of the essence with regard to performance of
this Agreement.
10.04 Notices.
(a Any notices, demands, or requests required or authorized by this
Agreement, or any other instrument or document required or authorized to
be tendered or delivered by either party, must be in writing and
personally delivered or sent by certified mail, return
Renewable Resource Energy Purchase Agreement - Page 32
receipt requested (except that billing statements and payments may be by
regular mail), postage prepaid, to:
(i If to TU Electric:
(A0 with respect to operations: (B0 with respect to all other
matters:
Generation Coordinator Manager, Non-Utility Purchases
Texas Utilities Electric Company Texas Utilities Electric Company
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇.▇. ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(ii If to Producer:
▇▇ ▇▇▇▇▇▇, Secretary
New World Power Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b Producer may designate by written notice one additional person to receive
operational notices.
(c Producer shall, before the Phase One Partial Commercial Operation Date,
notify TU Electric in writing of one or more telephone numbers that will
be answered by a representative of Producer for 24 hours every day.
(d The person to receive notices or the address for such notices may be
changed by written notice from one party to the other party under this
Section. Any written notice, demand, or request given under this Section
is deemed to be given upon the earlier of (i) actual receipt, or (ii)
deposit in the U.S. mail, properly addressed, and with adequate postage.
If a party is required to take some action within a certain time, which
period is begun by a notice given by mail, then the time is extended by
three Business Days. Routine operational notices and communications and
notices during an emergency or other unforeseen event may be made in
person or by telephone.
(e TU Electric shall send a copy of any notices of default by Producer to one
person designated by Producer to receive notices on behalf of parties
providing debt or equity financing to Producer in connection with the
Renewable Resource Facility. Producer may designate or redesignate such a
person to receive copies of notices by sending a written designation to TU
Electric.
Renewable Resource Energy Purchase Agreement - Page 33
10.05 No Rights of Third Parties. This Agreement is intended only for the
parties' benefit. Nothing in this Agreement may be construed to create any duty
to, any standard of care concerning, or any liability to, any person not a party
to this Agreement.
10.06 Subject to Applicable Laws. This Agreement is subject to applicable
federal, state, and local laws, ordinances, rules, and regulations. Nothing in
this Agreement may be construed as a waiver of any right to question or contest
any law, ordinance, rule, regulation, or asserted regulatory jurisdiction.
10.07 No Partnership. This Agreement is not intended to create and does not
create an association, joint venture, or partnership between the parties or to
impose any partnership obligation or liability upon either party. Neither party
has any right, power, or authority to enter any agreement or undertaking for, or
act on behalf of, or to act as or be an agent or representative of, or to
otherwise bind, the other party.
10.08 Amendment. This Agreement may be amended any time, but only by a written
agreement signed by both parties to this Agreement.
10.09 No Waiver. The waiver of a breach of any provision of this Agreement does
not waive any other breach of that provision or of any other provision.
10.10 Captions. The captions of the various articles and sections of this
Agreement are for convenience and reference only and do not limit or define any
terms and provisions of this Agreement.
10.11 Complete Agreement. This Agreement (with its Exhibits) represents the
parties' final and mutual understanding concerning its subject matter. It
replaces and supersedes any prior agreements or understandings, whether written
or oral. No representations, inducements, promises, or agreements, oral or
otherwise, have been relied upon or made by any party, or anyone on behalf of a
party, that are not fully expressed in this Agreement. An agreement, statement,
or promise not contained in this Agreement is not valid or binding.
10.12 Governing Law. This Agreement shall be governed by, construed and enforced
in accordance with Texas law. The parties agree that the proper venue and
jurisdiction for any cause of action relating to this Agreement shall be in
Dallas County, Texas.
10.13 Severability. In the event any provision of this Agreement is held to be
void, unlawful, or otherwise unenforceable, that provision will be severed from
the remainder of the Agreement, and replaced automatically by a provision
containing terms as nearly like the void, unlawful, or unenforceable provision
as possible; and the Agreement, as so modified, will continue to be in full
force and effect. If the application of any provision of this Agreement to any
person or circumstance is held to be void, unlawful, or unenforceable, then that
provision remains valid, lawful, and enforceable as applied to other persons and
circumstances.
Renewable Resource Energy Purchase Agreement - Page 34
10.14 Exhibits. The Exhibits attached to this Agreement and listed in the Table
of Contents are incorporated in this Agreement and made a part of this Agreement
as if repeated verbatim in this Agreement.
10.15 Construction. In this Agreement, the following rules of construction
apply, unless expressly provided otherwise or unless the context clearly
requires otherwise:
(a The singular includes the plural, and the plural includes the singular.
The present tense includes the future tense, and the future tense includes
the present tense. Words importing any gender include the other gender.
(b The word "shall" denotes a duty. The word "must" denotes a condition
precedent or subsequent. The word "may" denotes a privilege or
discretionary power. The phrase "may not" denotes a prohibition.
References to "writing" include printing, typing, lithography, and other
means of reproducing words in a tangible visible form. The words
"including", "includes", and "include" are deemed to be followed by the
words "without limitation."
(c References to Articles, Sections (or subdivisions of Sections), Exhibits,
annexes, appendices, or schedules are to this Agreement, unless expressly
stated otherwise. References to statutes, tariffs, or regulations include
all statutes, tariffs, or regulations consolidating, amending, or
replacing the statute, tariff, or regulation referred to. References to
industry publications (such as IEEE 519) include all publications
consolidating, amending, or replacing the publication referred to.
References to agreements and other contractual instruments include all
subsequent amendments and other modifications to the instruments, but only
to the extent the amendments and other modifications are not prohibited by
this Agreement. References to persons or entities include their respective
successors and permitted assigns and, for governmental entities, entities
succeeding to their respective functions and capacities.
10.16 Delivery of Copy of Agreement. TU Electric has delivered a copy of this
Agreement to Producer for its review; that delivery does not constitute an offer
to Producer. This Agreement is not effective until a copy executed by Producer
is delivered to and executed by TU Electric.
Executed as of the date first stated above.
Renewable Resource Energy Purchase Agreement - Page 35
New World Power Texas Texas Utilities Electric Company
Renewable Energy Limited
Partnership
By:
----------------------------
By: The New World Power Corporation
Title:
-------------------------
Date:
-------------------------
By:
-------------------------
Title:
----------------------
Date:
----------------------
Renewable Resource Energy Purchase Agreement - Page 36
EXHIBIT 1.01
Description of Renewable Resource Facility
One Line Diagram
Site Plan
Note: The following items are being developed by NWP and will be included with
the executed contract.
Structural Specifications Including Supporting Towers and Foundations
Enercon Wind Turbine Generator Specifications
Enercon Rotor Blade Specifications
Enercon Inverter Specifications
EXHIBIT 1.01
Page 1 of 5
Description of Renewable Resource Facility
One Line Diagram
EXHIBIT 1.01
Page 2 of 5
Description of Renewable Resource Facility
Site Plan Map
EXHIBIT 1.01
Page 3 of 5
Description of Renewable Resource Facility
Enercon Wind Turbine Generator Specifications
Drawing and general descriptions
EXHIBIT 1.01
Page 4 of 5
Description of Renewable Resource Facility
Technical Data for Grind conversion
Drawing of Enercon Inverter
EXHIBIT 1.01
Page 5 of 5
Description of Renewable Resource Facility
Drawing of Enercon Wind Turbine Generator
EXHIBIT 1.02(g)
Relay Protective Requirements
One line diagram depicting protective relays required for coordination with TU
Electric system.
EXHIBIT 1.03
Interconnection Facilities
One line diagram showing point of interconnection between the Renewable Resource
Facility and TU Electric and the facilities to be added or modified to
accommodate the interconnection.
EXHIBIT 1.03(f)
Telemetering and SCADA Table Requirements
DEVICE/LINE DATA REQUIRED PER DEVICE
69 kV side of Producer Substation Three phase megawatts
Three phase megavars
Voltage
69 kV circuit breaker in Producer Substation Control Status
indication Two sets of "a"
contacts
For 69 kV Renewable Resource Facility/TU MWh in Y1, K1, Z1 pulses
Electric Tie MW "In" and "Out"
Meteorological Data Wind Speed
Temperature
Wind Direction
Note: All analog signals to be 0 to + or - 1 mA transducer output
signals.
Exhibit 1.03(f) - Page 1 of 1
EXHIBIT 2.01(a)
List Of Items To Be Completed Before Phase One Partial Commercial Operation
1. The construction of Phase One of the Renewable Resource Facility is
complete except for minor punch-list type items.
2. Phase One of the Renewable Resource Facility is available for normal and
continuous operation.
3. The Trip Test, Relay Test, and Test A under Power Factor Tests described
in Section 2.02(a) have been run and passed, and Test B under the Power
Factor Tests described in Section 2.02(a) has been run according to the
procedures and other conditions of Exhibit 2.02(a), including the
preparation and acceptance of the final written test reports.
4. TU Electric has given its written approval of the Renewable Resource
Facility Plans.
5. Producer has furnished TU Electric with an insurance certificate and
opinion letter evidencing that the insurance required by this Agreement is
in place.
6. Producer has paid in full any costs due to TU Electric, including all
costs for Interconnection Facilities.
7. The Public Utility Commission of Texas has approved this Agreement and
made the findings of fact and conclusions of law that are reasonably
satisfactory both to Producer and to TU Electric.
Exhibit 2.01(a) -- Page 1 of 1
EXHIBIT 2.01(b)
List Of Items To Be Completed Before Phase Two Partial Commercial Operation
1. The construction of Phase One and Phase Two of the Renewable Resource
Facility is complete except for minor punch-list type items.
2. Phase One and Phase Two of the Renewable Resource Facility is available
for normal and continuous operation.
3. The Trip Test, Relay Test, and Test A under Power Factor Tests described
in Section 2.02(a) have been run and passed, and Test B under the Power
Factor Tests described in Section 2.02(a) has been run according to the
procedures and other conditions of Exhibit 2.02(a), including the
preparation and acceptance of the final written test reports.
4. TU Electric has given its written approval of the Renewable Resource
Facility Plans.
5. Producer has furnished TU Electric with an insurance certificate and
opinion letter evidencing that the insurance required by this Agreement is
in place.
6. Producer has paid in full any costs due to TU Electric, including all
costs for Interconnection Facilities.
7. The Public Utility Commission of Texas has approved this Agreement and
made the findings of fact and conclusions of law that are reasonably
satisfactory both to Producer and to TU Electric.
Exhibit 2.01(b) -- Page 1 of 1
EXHIBIT 2.01(c)
List Of Items To Be Completed Before Commercial Operation
1. The construction of the Renewable Resource Facility is complete except for
minor punch-list type items.
2. The Renewable Resource Facility is available for normal and continuous
operation.
3. The Trip Test, Relay Test, and Test A under Power Factor Tests described
in Section 2.02(a) have been run and passed, and Test B under the Power
Factor Tests described in Section 2.02(a) has been run according to the
procedures and other conditions of Exhibit 2.02(a), including the
preparation and acceptance of the final written test reports.
4. TU Electric has given its written approval of the Renewable Resource
Facility Plans.
5. Producer has furnished TU Electric with an insurance certificate and
opinion letter evidencing that the insurance required by this Agreement is
in place.
6. Producer has paid in full any costs due to TU Electric, including all
costs for Interconnection Facilities.
7. The Public Utility Commission of Texas has approved this Agreement and
made the findings of fact and conclusions of law that are reasonably
satisfactory both to Producer and to TU Electric.
Exhibit 2.01(c) -- Page 1 of 1
EXHIBIT 2.02(a)
Performance Test Procedures
1. Trip Test
Procedures: Perform a trip test on the 69 kV breaker connecting the
Renewable Resource Facility to TU Electric's transmission system. This
test should verify that each tripping relay and tripping power source will
trip the breaker and that the breaker is operating properly. This test
shall be in accordance with the manufacturer's recommendations.
2. Relay Test
Procedures: Perform calibration and functional tests on the Renewable
Resource Facility's protective relaying scheme for the 69 kV breaker and
main step-up transformer. Each relay connected to the 69 kV breaker or
step-up transformer should be calibrated and tested for proper operation.
These tests shall be in accordance with the manufacturer's
recommendations.
3. Power Factor Tests
Procedures:
Test A. Perform a power factor test on the Renewable Resource
Facility to verify the ability of individual wind
turbines to operate at a lagging power factor of 0.9
for 1 hour and a leading power factor of 0.9 for 1
hour. This test must be performed under normal
operating conditions on a representative number of
wind turbine generators, to be determined by TU
Electric. The power factor should be measured on the
low voltage bus of the pad transformer that steps the
voltage of the inverter up to the 25 kV level. The
written power factor test report must include data
sheets and results listing the power factor, total
generation, and voltage for each wind turbine
generator tested.
Test B. Perform a power factor test on the Renewable Resource
Facility to record the ability to operate at a lagging
power factor of 0.9 for 1 hour and a leading power
factor of 0.9 for 1 hour. This test must be performed
under normal operating conditions with all available
wind turbines in service. The power factor should be
measured at the Point of Interconnection. For both
0.9 leading and for 0.9 lagging conditions, the
written power factor test report must include data
sheets and results listing the Renewable Resource
Facility power factor, Renewable Resource Facility
total generation, Renewable Resource Facility voltage,
and number of wind turbines in service.
Exhibit 2.02(a) - Page 1 of 1
EXHIBIT 3.01
Payment Schedule
Monthly Payments
A. Payable to TU Electric by Producer. Producer shall pay a monthly charge for
meter reading, billing, and administration of this Agreement based on TU
Electric's Rate LPP as is in effect from time to time. The applicable customer
charge for Rate LPP is currently $600.00 per month. The current Rate LPP is
attached to, and is part of, this Exhibit 3.01.
B. Payable to Producer by TU Electric. Trial Energy is:
1. All energy delivered to TU Electric at the Point of Interconnection
and produced by the Renewable Resource Facility before the Phase One
Partial Commercial Operation Date;
2. All energy delivered to TU Electric at the Point of Interconnection
and produced by portions of the Renewable Resource Facility other
than Phase One before the Phase Two Partial Commercial Operation
Date and on or after the Phase One Partial Commercial Operation
Date; and
3. All energy delivered to TU Electric at the Point of Interconnection
and produced by portions of the Renewable Resource Facility other
than Phase One and Phase Two before the Commercial Operation Date
and on or after the Phase Two Partial Commercial Operation Date.
After the Phase One Commercial Operation Date, the amount of Trial Energy in a
month is to be determined by reading Producer's meters.
TU Electric will pay Producer for Trial Energy at Rate LPP and will pay Producer
for all other electric energy delivered to TU Electric at the Point of
Interconnection and produced by the Renewable Resource Facility at the rates
stated in the table below.
================================ ===========================
Calendar Payment Rate Calendar Payment Rate
Year (Cents/kWh) Year (Cents/kWh)
-------------------------------- ---------------------------
1996 3.90 2004 4.94
-------------------------------- ---------------------------
1997 4.02 2005 5.09
-------------------------------- ---------------------------
1998 4.14 2006 5.24
-------------------------------- ---------------------------
1999 4.26 2007 5.40
-------------------------------- ---------------------------
2000 4.39 2008 5.56
-------------------------------- ---------------------------
2001 4.52 2009 5.73
-------------------------------- ---------------------------
2002 4.66 2010 5.90
-------------------------------- ---------------------------
2003 4.80 2011 6.08
================================ ===========================
Exhibit 3.01 - Page 1 of 1
EXHIBIT 3.06(b)
Parameters to be Monitored and Recorded by Producer
PARAMETERS DESCRIPTION UNITS
---------- ----------- -----
1. Meteorological
1.1 Wind Speed 10 meter height miles/hr
40 meter hub height miles/hr
50 meter hub height miles/hr
1.2 Temperature met tower Degrees F
1.3 Wind Direction met tower compass(ENE)
2. Electrical
2.1 Main Unit Transformer Gross Demand kW
(25 kv bus) Gross Energy kWh
Gross Reactive Demand kVars
Current (a, b, c) amps
Potential kV
Frequency HZ
Top Oil Temperature degrees F
LTC Changes count
2.2 Renewable Resource Facility Demand kW
Circuit #1 Energy kWh
Reactive Demand kVars
Current (a, b, c) amps
Trip Count count
2.3 Renewable Resource Facility Demand kW
Circuit #2 Energy kWh
Reactive Demand kVars
Current (a, b, c) amps
Trip Count count
2.4 Renewable Resource Facility Demand kW
Circuit #3 Energy kWh
Reactive Demand kVars
Current (a, b, c) amps
Trip Count count
Exhibit 3.06(b) - Page 1 of 2
NOTE: The information monitored and recorded by Producer under the heading "Cost
Data" immediately below is to be treated as highly sensitive Confidential
Information by TU Electric under the provisions of Article 8.
3. Cost Data
3.1 Actual Installed Cost Site Development and Total
Preparation
Wind Turbine Each
Structure Each
Electrical System Total
Balance of Plant by Each
major component
3.2 Operating Cost Land Annual
Routine Maintenance Annual
(including labor
rates and hours per
turbine)
Major Overhauls Annual
Operations Annual
Balance of Cost by Annual
major category
4. Outages
4.1 Forced Outages Cause Per Turbine
Description of Per Turbine
Failed Equipment
Time Required for Per Turbine
Repair
5. Avian Mortality
5.1 Type of Bird Cause (blade strike, Monthly
electrocution, etc.)
Exhibit 3.06(b) - Page 2 of 2
EXHIBIT 9.11
Memorandum of Option
State of Texas
County of ▇▇▇▇▇▇
This Memorandum of Option ("Memorandum") is executed concurrently with a
Renewable Resource Energy Agreement ("Agreement") between the undersigned
parties, and both this Memorandum and the Agreement constitute an Agreement
between New World Power Texas Renewable Energy Partnership, a Texas limited
partnership ("Producer") and Texas Utilities Electric Company, a Texas
corporation ("TU Electric"), relating to a wind generation facility (the
"Renewable Resource Facility"), with a total nameplate electrical generating
capacity of 40,000 kilowatts ("kW") and anticipated average net annual
generation of 113,000,000 kilowatt-hours ("kWh") located in ▇▇▇▇▇▇ County, Texas
and related contract rights (all of which is collectively called the
"Property"). The Renewable Resource Facility is located on the following real
property in ▇▇▇▇▇▇ County, Texas:
[metes and bounds description of real property]
Producer hereby grants, for valuable consideration described in the Agreement,
to TU Electric the exclusive right and option to buy the Property at a price,
and under terms and conditions, described in the Agreement. This Option expires
if it is not exercised with in the time specified in the Agreement, which may be
as early as 150 days after the Agreement is terminated or as late as 25 years
after the Renewable Resource Facility begins Commercial Operation as defined in
the Agreement, which is anticipated to be near June 15, 1996.
Executed on the ___ day of ______, 1994.
New World Power Texas Texas Utilities Electric Company
Renewable Energy Limited
Partnership
By:
---------------------
By: The New World Power Title:
Corporation -------------------
General Partner Date:
-------------------
By:
---------------------
Title:
-------------------
Date:
-------------------
Exhibit 9.11 -- Page 1 of 2
Acknowledgment
State of Texas
County of ______________
This instrument was acknowledged before me on __________________, 1994, by
______________________, _______________________ of The New World Power
Corporation, which is the general partner of New World Power Texas Renewable
Energy Partnership, a Texas limited
partnership, on behalf of said partnership.
--------------------------
Notary Public
--------------------------
Typed or printed name of notary
My commission expires:
--------------------------
Exhibit 9.11 -- Page 2 of 2
Amendment No.2
To
Renewable Resource Energy Purchase Agreement
This Amendment No. 2 to Renewable Resource Energy Purchase Agreement (the
"Amendment") dated __________________, 1997, is between Texas Utilities Electric
Company ("TU Electric"), a Texas corporation with offices in Dallas, Dallas
County, Texas, and New World Power Texas Renewable Energy Limited Partnership
("Producer"), a limited partnership of which The New World Power Corporation, a
Delaware corporation with offices in Lime Rock, Connecticut, is the general
partner.
TU Electric and Producer entered into a Renewable Resource Energy Purchase
Agreement dated September 13, 1994 (the "Agreement") The parties now desire to
amend that Agreement.
Therefore, in consideration of the promises made in this Amendment, TU Electric
and Producer agree as follows:
1. This Amendment is effective only if both TU Electric and Producer have
executed it. The portions of the Agreement that are not modified by this
Amendment are still effective.
2. Exhibit 3.01 to the Agreement is replaced by the attached revised Exhibit
3.01 - "Revised Pursuant to Amendment No.2".
Signed and effective as of the date first stated above.
New World Power Texas Renewable Texas Utilities Electric Company
Energy Limited Partnership
By: The New World Power Corporation By:
------------------
Title:
----------------
Date:
----------------
General Partner
By:
------------------
Title:
----------------
Date:
----------------
EXHIBIT 3.01
(Revised Pursuant to Amendment No.2)
Payment Schedule
Page 1 of 2
Monthly Payments
A. Payable to TU Electric by Producer. Producer shall pay a monthly charge for
meter reading, billing, and administration of this Agreement based on TU
Electric's Rate LPP as is in effect from time to time. The applicable customer
charge for Rate LPP is currently $600.00 per month. The current Rate LPP is
attached to, and is part of, this Exhibit 3.01.
B. Payable to Producer by TU Electric. Trial Energy is:
1. All energy delivered to TU Electric at the Point of Interconnection and
produced by the Renewable Resource Facility before the Phase One Partial
Commercial Operation Date:
2. All energy delivered to TU Electric at the Point of Interconnection and
produced by portions of the Renewable Resource Facility other than Phase
One before the Phase Two Partial Commercial Operation Date and on or after
the Phase One Partial Commercial Operation Date; and
3. All energy delivered to TU Electric at the Point of Interconnection and
produced by portions of the Renewable Resource Facility other than Phase
One and Phase Two before the Commercial Operation Date and on or after the
Phase Two Partial Commercial Operation Date.
After the Phase One Commercial Operation Date, the amount of Trial Energy in a
month is to be determined by reading Producer's meters.
-2-
Renewable Resource Energy Purchase Agreement
-3-
EXHIBIT 3.01
(Revised Pursuant to Amendment No.2)
Payment Schedule
Page 2 of 2
TU Electric will pay Producer for Trial Energy at Rate LPP and will pay Producer
for all other electric energy delivered to TU Electric at the Point of
Interconnection and produced by the Renewable Resource Facility at the rates
stated in the table below.
============================================================================
Calendar Year Payment Rate Calendar Year Payment Rate
(Cents/kWh) (Cents/kWh)
----------------------------------------------------------------------------
1997 4.02 2011 6.08
----------------------------------------------------------------------------
1998 4.14 2012 6.11
----------------------------------------------------------------------------
1999 4.26 2013 6.14
----------------------------------------------------------------------------
2000 4.39 2014 6.17
----------------------------------------------------------------------------
2001 4.52 2015 6.20
----------------------------------------------------------------------------
2002 4.66 2016 6.23
----------------------------------------------------------------------------
2003 4.80 2017 6.26
----------------------------------------------------------------------------
2004 4.94 2018 6.30
----------------------------------------------------------------------------
2005 5.09 2019 6.33
----------------------------------------------------------------------------
2006 5.24 2020 6.36
----------------------------------------------------------------------------
2007 5.40 2021 6.39
----------------------------------------------------------------------------
2008 5.56 2022 6.42
----------------------------------------------------------------------------
2009 5.73 2023 6.46
----------------------------------------------------------------------------
2010 5.90
============================================================================-
Renewable Resource energy Purchase Agreement
-4-
Amendment No. 3
To
Renewable Resource Energy Purchase Agreement
This Amendment No. 3 to Renewable Resource Energy Purchase Agreement (the
"Amendment") dated August 29, 1997, is between Texas Utilities Electric Company
("TU Electric") a Texas corporation with offices in Dallas, County, Texas, and
New World Power Texas Renewable Energy Limited Partnership ("Producer"), a
limited partnership of which the New World Power Corporation, a Delaware
corporation, is the general partner.
TU Electric and Producer entered into a Renewable Resource Energy Purchase
Agreement dated September 13, 1994 (the "Agreement"). The Parties now desire to
amend that Agreement. Therefore, in consideration of the promises made in this
Amendment, TU Electric and Producer agree as follows:
1. This Amendment is effective only if both TU Electric and Producer have
executed it. The portions of the Agreement, as previously amended by
Amendment No. 1 and Amendment No. 2, that are not modified by this
Amendment No. 3 are still effective.
2. Section 6.01(b) of the Agreement is amended to read as follows:
(b) If Producer has failed to attain Commercial Operation status on or
before May 31, 1999, then TU Electric has the option to immediately
terminate this Agreement upon written notice to Producer.
3. Exhibit 1.01 Pages 3 of 6, 4 of 6, 5 of 6 and 6 of 6 "Revised Pursuant to
Amendment No. 1"to the Agreement are replaced by the attached Exhibit 1.01
age 3 of 9, 4 of 9, 5 of 9, 6 of 9, 7 of 9, 8 of 9 and 9 of 9. "Revised
Pursuant to Amendment No. 3".
4. Exhibit 3.01 "Revised Pursuant to Amendment No. 2" to the Agreement is
replaced by the attached revised Exhibit 3.01 "Revised Pursuant to
Amendment No. 3".
Signed and effective as of the date first stated above.
New World Power Texas Renewable Texas Utilities Electric Company
Energy Limited Partnership
By: The New World Power
Corporation,
General Partner
By: By:
----------------------- -----------------------
Title: Title:
----------------------- -----------------------
EXHIBIT 1.01
Page 3 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewable Resource Facility
Vestas V47 - 660 kW Wind Turbine and Tower
General Specifications
Cut-away Drawing of Wind Turbine of V47 Wind Turbine
-3-
EXHIBIT 1.01
Page 4 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewable Resource Facility
Vestas V66 - 1,650 kW Wind Turbine and Tower
General Specifications
Cut-away Drawing: Vestas V66 - 1.65 MW Wind Turbine - Nacelle Layent
-4-
EXHIBIT 1.01
Page 5 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewable Resource Facility
Wind Turbine and Tower
General Specifications (cont.)
General Specifications
================================================================================================
Specification Vestas V47 - 660 kW Turbine Vestas V66 - 1.65 MW
Turbine
------------------------------------------------------------------------------------------------
Rated Power 660 kW 1,650 kW (1.65 MW)
------------------------------------------------------------------------------------------------
Rotor 3 bladed, glassfibre reinforced 3 bladed, glassfibre reinforced
epoxy epoxy
------------------------------------------------------------------------------------------------
Rotor Orientation Horizontal axis, Unwind Horizontal axis, upwind
------------------------------------------------------------------------------------------------
Rotor diameter 47 meters (154 feet) 66 meters (216 feet)
------------------------------------------------------------------------------------------------
Rotor Speed 28.5 RPM 19/15 rpm
------------------------------------------------------------------------------------------------
Power Control Variable pitch ("Optitip") and Variable pitch ("Optitip") and
"Optislip" generator "Optislip" generator
------------------------------------------------------------------------------------------------
Tower Type Tapered tubular Tapered tubular
------------------------------------------------------------------------------------------------
Tower Weight 143,300 lbs. 268,500 lbs.
------------------------------------------------------------------------------------------------
Tower Height Approx. 63.4 meters (208 feet) Approx. 77.8 meters (255 feet)
------------------------------------------------------------------------------------------------
Hub Height 65 meters (213 feet) 80 meters (262 feet)
------------------------------------------------------------------------------------------------
Foundation Size Approx. 12' dia. x 25' deep Approx. 46' x 46' x 10' deep
------------------------------------------------------------------------------------------------
Generator Asynchronous, variable slip Asynchronous, variable slip
690 V - 60 Hz 690 V - 60 Hz
------------------------------------------------------------------------------------------------
Lightning Protection Vestas Total Vestas Total
Lightning Protection Lightning Protection
------------------------------------------------------------------------------------------------
Brake System Blade pitch & disc brake Blade pitch & disc brake
------------------------------------------------------------------------------------------------
Grid Connection Via Vestas VMP controller Via Vestas VMP controller
------------------------------------------------------------------------------------------------
Turbine Weight 60,850 lbs. (including rotor) 171,960 lbs. (including rotor)
------------------------------------------------------------------------------------------------
Cut-in Wind Speed 4.0 m/s (9.0 mph) 4.0 m/s (9.0 mph)
------------------------------------------------------------------------------------------------
Cut-out Wind Speed 25 m/s (56 mph) 25 m/s (56 mph)
------------------------------------------------------------------------------------------------
Survival Wind Speed 70 m/s (157 mph) 3 sec. gust 70 m/s (157 mph) 3 sec. gust
================================================================================================
-5-
EXHIBIT 1.01
Page 6 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewable Resource Facility
Vestas V47 - 660 kW Wind Turbine Technical Data For Grid Connection
The Vestas V47 wind turbine operates fully automatic. This is achieved by the
VMP-controller. The VMP-controller is separated into a top controller located in
the turbine nacelle, and a bottom controller located at the tower base. The
VMP-controller serves the following functions:
Before connection to the grid, the speed of rotation is synchronized to
the grid frequency in order to limit the cut-in current.
Thyristor cut-in of the generator to limit the cut-in current.
Automatic yawing of the nacelle in accordance with the wind direction.
Cut-in and cut-out of the power factor correction.
Monitoring of the utility grid.
Monitoring of the operation of the wind turbine.
Stop of the wind turbine in case of faults.
The generator and the power factor correction will be cut out if the voltage or
the frequency exceed the limits set forth below.
====================================
Phase Voltage Grid Voltage
(400 V nominal) (690 V nominal)
----------------------------------------------------------------------------------------
The voltage is 6% above the nominal voltage for 424 V 734 V
60 sec.
----------------------------------------------------------------------------------------
The voltage is 10% below the nominal voltage for 360 V 624 V
60 sec.
----------------------------------------------------------------------------------------
The frequency is above 62 Hz for 0.2 sec.
----------------------------------------------------------------------------------------
The frequency is below 57 Hz for 0.2 sec.
========================================================================================
The power factor correction will cut-out if:
====================================
Phase Voltage Grid Voltage
(400 V nominal) (690 V nominal)
----------------------------------------------------------------------------------------
The voltage is 10% above the nominal voltage for 440 V 762 V
0.2 sec.
========================================================================================
-7-
The generator will cut-out if:
====================================
Phase Voltage Grid Voltage
(400 V nominal) (690 V nominal)
----------------------------------------------------------------------------------------
The voltage is 10% above the nominal voltage for 440 V 762 V
0.5 sec.
========================================================================================
If a fault on the grid interrupts the voltage supply to the VMP-controller, the
emergency stop circuit will be opened immediately, and the generator and power
factor correction will be cut out simultaneously.
-8-
EXHIBIT 1.01
Page 7 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewable Resource Facility
Vestas V66 - 1,650 kW Wind Turbine Technical Data For Grid Connection
The Vestas V66 wind turbine operates fully automatic. This is achieved by the
VMP-controller. The VMP-controller is separated into a top controller located in
the turbine nacelle, and a bottom controller located at the tower base. The
VMP-controller serves the following functions:
Before connection to the grid, the speed of rotation is synchronized to
the grid frequency in order to limit the cut-in current.
Thyristor cut-in of the generator to limit the cut-in current.
Automatic yawing of the nacelle in accordance with the wind direction.
Cut-in and cut-out of the power factor correction.
Monitoring of the utility grid.
Monitoring of the operation of the wind turbine.
Stop of the wind turbine in case of faults.
The generator and the power factor correction will be cut out if the voltage or
the frequency exceed the limits set forth below.
==================================
Phase Voltage Grid Voltage
(400 V nominal) (690 V nominal)
-----------------------------------------------------------------------------------------
The voltage is 6% above the nominal voltage for 424 V 734 V
60 sec.
-----------------------------------------------------------------------------------------
The voltage is 6% below the nominal voltage for 376 V 651 V
60 sec.
-----------------------------------------------------------------------------------------
The frequency is above 62 Hz for 0.2 sec.
-----------------------------------------------------------------------------------------
The frequency is below 57 Hz for 0.2 sec.
=========================================================================================
The power factor correction will cut-out if:
==================================
Phase Voltage Grid Voltage
(400 V nominal) (690 V nominal)
-----------------------------------------------------------------------------------------
The voltage is 10% above the nominal voltage for 440 V 762 V
0.2 sec.
=========================================================================================
-9-
The generator will cut-out if:
==================================
Phase Voltage Grid Voltage
(400 V nominal) (690 V nominal)
-----------------------------------------------------------------------------------------
The voltage is 10% above the nominal voltage for 440 V 762 V
0.5 sec.
=========================================================================================
If a fault on the grid interrupts the voltage supply to the VMP-controller, the
emergency stop circuit will be opened immediately, and the generator and power
factor correction will be cut out simultaneously.
-10-
EXHIBIT 1.01
Page 8 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewable Resource Facility
Vestas V47 - 660 kW Wind Turbine Generator Specifications.
===============================================================================
Specification Vestas V47 Turbine
-------------------------------------------------------------------------------
Generator Manufacturer ABB, ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇
-------------------------------------------------------------------------------
Generator Type Asynchronous, variable slip
-------------------------------------------------------------------------------
Degree of Protection IP54
-------------------------------------------------------------------------------
Insulation classes (stator/rotor) F/H
-------------------------------------------------------------------------------
Voltage 690 VAC
-------------------------------------------------------------------------------
Frequency 60 Hz
-------------------------------------------------------------------------------
Number of Poles 4
-------------------------------------------------------------------------------
Winding Connection wye
-------------------------------------------------------------------------------
Rated Power 660 kW
-------------------------------------------------------------------------------
Slip Regulation Interval 1 - 10%
-------------------------------------------------------------------------------
Rated Speed 1890
-------------------------------------------------------------------------------
Rated Efficiency at 2% Slip 95.4%
-------------------------------------------------------------------------------
Generator Power Factor (no correction):
-------------------------------------------------------------------------------
1/1 load 0.89
-------------------------------------------------------------------------------
3/4 load 0.89
-------------------------------------------------------------------------------
1/2 load 0.86
-------------------------------------------------------------------------------
1/4 load 0.72
-------------------------------------------------------------------------------
Generator Current:
-------------------------------------------------------------------------------
full load current (@ 690 V) 621 A
-------------------------------------------------------------------------------
no load (@ 690 V) 130 A
-------------------------------------------------------------------------------
Generator Reactive Power:
-------------------------------------------------------------------------------
full load 338 kVAr
-------------------------------------------------------------------------------
no load 155 kVAr
-------------------------------------------------------------------------------
-11-
--------------------------------------------------------------------------------
Power Factor Correction 225 kVAr
--------------------------------------------------------------------------------
Resulting Power Factor (grid side):
--------------------------------------------------------------------------------
1/1 load 0.99
--------------------------------------------------------------------------------
3/4 load 1.00
--------------------------------------------------------------------------------
1/2 load 1.00
--------------------------------------------------------------------------------
1/4 load 1.00
--------------------------------------------------------------------------------
Resulting Full Load Current @ 690 V (grid side) 564 A
================================================================================
-12-
EXHIBIT 1.01
Page 9 of 9
(Revised Pursuant to Amendment No. 3)
Description of Renewal Resource Facility
Vestas V66 - 1,650 kW Wind Turbine Generator Specifications
================================================================================
Specification 1,650 kW Generato 300 kW Generator
--------------------------------------------------------------------------------
Generator Manufacturer ABB or similar ABB
--------------------------------------------------------------------------------
Generator Type Asynchronous, Asynchronous,
variable slip constant slip (10%)
--------------------------------------------------------------------------------
Degree of Protection IP54/IP20 IP54
--------------------------------------------------------------------------------
Insulation classes (stator/rotor) F/F F/F
--------------------------------------------------------------------------------
Voltage 690 VAC 690 VAC
--------------------------------------------------------------------------------
Frequency 60 Hz 60 Hz
--------------------------------------------------------------------------------
Number of Poles 4 4
--------------------------------------------------------------------------------
Winding Connection delta wye
--------------------------------------------------------------------------------
Rated Power 1,650 kW 300 kW
--------------------------------------------------------------------------------
Slip Regulation Interval 1 - 10% N/A (fixed at 0.9%)
--------------------------------------------------------------------------------
Rated Speed 1890 rpm 1816 rpm
--------------------------------------------------------------------------------
Rated Efficiency at 2% Slip 95% 96%
--------------------------------------------------------------------------------
Generator Power Factor (no
correction):
--------------------------------------------------------------------------------
1/1 load 0.87 0.87
--------------------------------------------------------------------------------
3/4 load 0.85
--------------------------------------------------------------------------------
1/2 load 0.78
--------------------------------------------------------------------------------
1/4 load 0.57
--------------------------------------------------------------------------------
Generator Current:
--------------------------------------------------------------------------------
full load current (@ 690 V) 1,585 A 290 A
--------------------------------------------------------------------------------
no load (@ 690 V) 480 A 65 A
--------------------------------------------------------------------------------
Generator Reactive Power:
--------------------------------------------------------------------------------
full load ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
--------------------------------------------------------------------------------
no load ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
--------------------------------------------------------------------------------
-13-
--------------------------------------------------------------------------------
Power Factor Correction ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
-------------------------------------------------------------------------------
Resulting Power Factor (grid side):
-------------------------------------------------------------------------------
1/1 load 1.00 1.00
-------------------------------------------------------------------------------
3/4 load 1.00
-------------------------------------------------------------------------------
1/2 load 1.00
-------------------------------------------------------------------------------
1/4 load 1.00
-------------------------------------------------------------------------------
Resulting Full Load Current (grid side) 1,408 A 252 A
===============================================================================
-14-
Exhibit 3.01
(Revised Pursuant to Amendment No. 3)
Payment Schedule
Page 1 of 5
Monthly Payments
A. Payable to TU Electric by Producer. Producer shall pay a monthly charge
for meter reading, billing and administration of this Agreement based on
TU Electric's Rate LPP as is in effect from time to time. The applicable
customer charge for Rate LPP is currently $600.00 per month. The current
Rate LPP is attached to, and is part of, this Exhibit 3.01.
B. Payable to Producer by TU Electric. Trial Energy is:
1. All energy delivered to TU Electric at the Point of Interconnection
and produced by the Renewable Resource Facility before the Phase One
Partial Commercial Operation Date;
2. All energy delivered to TU Electric at the Point of Interconnection
and produced by portions of the Renewable Resource Facility other
than Phase One before the Phase Two Partial Commercial Operation
Date and on or after the Phase One Partial Commercial Operation
Date; and
3. All energy delivered to TU Electric at the Point of Interconnection
and produced by portiones of the Renewable Resource facility other
than Phase One and Phase Two before the Commercial Operation date
and on or after the Phase Two Partial Commercial Operation Date.
After the Phase One Commercial Operation Date, the amount of Trial energy in a
month is to be determined by reading Producer's meters.
-15-
EXHIBIT 3.01
(Revised Pursuant to Amendment No. 3)
Payment Schedule
Page 2 of 5
TU Electric shall pay Producer for all Trial Energy at Rate LPP prices. During
Partial Commercial Operation, TU Electric shall pay Producer for all electric
energy other than Trial Energy delivered to TU Electric by Producer at the Point
of Interconnection and produced by the Renewable Resource Facility ("Delivered
Energy") at the Contract Price. Beginning on the Commercial Operation Date, TU
Electric shall pay Producer for all Delivered Energy at either the Contract
Price or Rate LPP according to the following descried methodology.
The "Contract Price" for a calendar year is the rate specified in the following
table:
Contract Payment Rate
============================================================================
Calendar Year Payment Rate Calendar Year Payment Rate
(Cents/kWAr) (Cents/kWAr)
----------------------------------------------------------------------------
1997 4.02 2010 5.90
----------------------------------------------------------------------------
1998 4.14 2011 6.08
----------------------------------------------------------------------------
1999 4.26 2012 6.11
----------------------------------------------------------------------------
2000 4.39 2013 6.14
----------------------------------------------------------------------------
2001 4.52 2014 6.17
----------------------------------------------------------------------------
2002 4.66 2015 6.20
----------------------------------------------------------------------------
2003 4.80 2016 6.23
----------------------------------------------------------------------------
2004 4.94 2017 6.26
----------------------------------------------------------------------------
2005 5.09 2018 6.30
----------------------------------------------------------------------------
2006 5.24 2019 6.33
----------------------------------------------------------------------------
2007 5.40 2020 6.36
----------------------------------------------------------------------------
2008 5.56 2021 6.39
----------------------------------------------------------------------------
2009 5.73 2022 6.42
----------------------------------------------------------------------------
2023 6.46
============================================================================
-16-
EXHIBIT 3.01
(Revised Pursuant to Amendment No. 3)
Payment Schedule
Page 3 of 5
The "Expected Energy" for a calendar month is the number of kWh specified for
that month in the following table, except that if the Commercial Operation Date
occurs on a date other than the first day of a month, the Expected Energy for
that month must be reduced prorata based on the number of days remaining in the
month compared to the total number of days in the month.
EXPECTED ENERGY
===========================================================================
Month Expected Energy (kWh)
---------------------------------------------------------------------------
January 9,925,000
---------------------------------------------------------------------------
February 9,350,000
---------------------------------------------------------------------------
March 12,275,000
---------------------------------------------------------------------------
April 12,850,000
---------------------------------------------------------------------------
May 13,450,000
---------------------------------------------------------------------------
June 9,925,000
---------------------------------------------------------------------------
July 8,175,000
---------------------------------------------------------------------------
August 7,025,000
---------------------------------------------------------------------------
September 7,650,000
---------------------------------------------------------------------------
October 8,750,000
---------------------------------------------------------------------------
November 9,350,000
---------------------------------------------------------------------------
December 8,175,000
===========================================================================
Renewable Resource Energy Purchase Agreement
-17-
EXHIBIT 3.01
(Revised Pursuant to Amendment No. 3)
Payment Schedule
Page 4 of 5
The "Allowable Energy" for a month is the Expected Energy for that month plus
the Balance Energy for the month immediately preceding that month, except that
for the first month of Commercial Operation the Allowable Energy equals the
Expected Energy. If the Commercial Operation Date occurs on a date other than
the first day of a month, the Allowable Energy for that month must be reduced
prorata based on the number of days remaining in the month compared to the total
number of days in the month.
The "Balance Energy" for a month is determined as follows: (1) if the Delivered
Energy for that month equals or exceeds the Allowable Energy for that month,
then the Balance Energy for that month is zero, and (2) if the Allowable Energy
for that month exceeds the Delivered Energy for that month, then the Balance
Energy for that month equals the Allowable Energy less the Delivered Energy.
If the Delivered Energy for a month exceeds the Allowable Energy for that month,
then TU Electric shall pay Producer the Contract Price for the portion of the
Delivered Energy equal to the Allowable Energy and shall pay Producer Rate LPP
prices for the remainder of the Delivered Energy for that month.
If the Allowable Energy for a month equals or exceeds the Delivered Energy for
that month, then TU Electric shall pay Producer the contract Price for all
Delivered Energy for that month. determined as follows: (1) if hte Delivered
Energy for that month equals or exceeds the Allowabel Energy for that month,
then the Balance of Energy for tha month is zero, and (2) if the Allowable
Energy for the Balnce Energy for that month equals the Allowable energy less the
deivered
-18-
EXHIBIT 3.01
(Revised Pursuant to Amendment No. 3)
Payment Schedule
Page 5 of 5
The following example demonstrates the application of this methodology:
NewWorld Power Partnership Account Example
Showing 2 years Operation
Month/Year Delivered Expected Allowable Contract Price Rate LPP Balance
Energy Energy Energy Portion Portion Energy
kWh kW kWh kWh kWh kWh
Dec 98 0
Jan 99 9,000,000 8,770,504 8,770,504 8,770,504 229,496 0
Feb 10,500,000 10,752,878 10,752,878 10,500,000 0 252,878
Mar 14,000,000 13,335,971 13,588,849 13,588,849 411,151 0
Apr 13,000,000 13,095,683 13,095,683 13,000,000 0 95,683
May 12,000,000 10,983,129 12,260,252 12,000,000 0 260,252
June 11,000,000 10,963,129 11,223,381 11,000,000 0 223,381
July 10,000,000 8,199,820 8,423,201 8,423,201 1,576,799 0
Aug 7,000,000 7,358,813 7,358,813 7,000,000 0 358,813
Sept 8,000,000 7,599,101 7,957,914 7,957,914 42,086 0
Oct 9,000,000 7,839,388 7,839,388 7,839,388 1,180,612 0
Nov 9,000,000 8,380,036 8,380,036 8,380,036 619,964 0
Dec 99 7,000,000 8,440,108 8,440,108 7,000,000 0 1,440,108
Jan 00 9,000,000 8,770,504 10,210,611 9,000,000 0 1,210,611
Feb 10,500,000 10,752,878 11,963,489 10,500,000 0 1,453,489
Mar 14,000,000 13,335,971 14,739,460 14,000,000 0 799,460
Apr 13,000,000 13,095,683 13,895,144 13,000,000 0 895,144
May 12,000,000 12,184,568 13,059,712 12,000,000 0 1,059,712
June 11,000,000 10,963,129 12,022,842 11,000,000 0 1,022,842
July 8,000,000 8,139,820 9,222,662 8,000,000 0 1,222,662
Aug 7,000,000 7,358,813 8,581,475 7,000,000 0 1,581,475
Sept 8,000,000 7,699,101 9,180,575 8,000,000 0 1,180,575
Oct 9,000,000 7,839,388 9,019,964 9,000,000 0 19,964
Nov 9,000,000 8,380,038 8,400,000 8,400,000 600,000 0
Dec 00 9,000,000 8,440,108 8,440,108 8,440,108 659,892 0
Delivered Expected Allowable Contact Rate LPP
Energy Energy Energy Portion Portion
kWh kWh kWh kWh kWh
Total Year 1 119,500,000 116,900,000 118,091,007 115,459,892 4,040,108
Total Year 2 119,500,000 116,800,000 128,796,042 118,340,108 1,159,892
Two Year Total 238,000,000 233,800,000 245,887,048 233,800,000 6,200,000
-19-