EXHIBIT 10.8
Ameren
Parallel Operating Agreement
THIS AGREEMENT, made and entered into this is ______ day of ___________, 2000,
by and between AMEREN SERVICES COMPANY, a Missouri Corporation, as designated
agent for Union Electric Company and Central Illinois Public Service Company
(hereinafter referred to collectively as "Company"), and AMEREN ENERGY
GENERATING COMPANY an Illinois Corporation, (hereinafter called "Operator"),
referred to collectively as "Parties" and singularly as "Party";
WITNESSETH
WHEREAS, Company owns and operates an Electric System on which the Company
provides non-discriminatory service to eligible customers in accordance with the
Company's Open Access Transmission Tariff and in accordance with all Applicable
Laws and Regulations set forth by the Federal Energy Regulatory Commission; and
WHEREAS, Operator has constructed and is operating an electric generating plant
consisting of generators, step-up transformer, disconnects, relays, metering and
other necessary equipment (hereinafter "Plant") in Jasper County, Illinois and
desires to continue operating said Plant in accordance with the provisions of
this Agreement; and
WHEREAS, Operator intends to continue transmitting power and energy generated
therefrom on Company's Electric System in parallel with Company and other users
of Company's Electric System; and
WHEREAS, Company is agreeable to permitting said Parallel Operation by Operator,
according to the following terms and conditions, provided said Parallel
Operation does not adversely affect the quality or continuity of service Company
is obligated to provide to all users of Company's Electric System; and
WHEREAS, Operator understands that this agreement is not a request for
transmission service under Company's Open Access Transmission Tariff, nor does
this Agreement in any way obligate Company to provide to Operator any specific
level or type of transmission service; and
WHEREAS, Operator understands that to acquire open access transmission service
from Company, Operator must make a specific request to Company in accordance
with the procedures set forth in Company's Open Access Transmission Tariff; and
WHEREAS, Operator understands that any request to the Company for transmission
service from the Plant by Operator or by any other entity may result in further
studies to identify system constraints caused by providing the transmission
service, the costs to remove those constraints (if any) through system
reinforcements, and possible target dates for completion of the system
reinforcements (if required) to provide the desired transmission service;
NOW THEREFORE, the Parties hereto, each in consideration of the covenants and
agreements hereinafter stated, mutually agree as follows:
SECTION 1 - DEFINITIONS
A. Whenever used in this Agreement, the following terms shall have the
following meanings:
1. "Affiliate" shall mean, with respect to any specified Person, any
other Person directly or indirectly controlling, or controlled by, or
under direct or indirect common control with such specified Person.
For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and
"under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by
agreement or otherwise.
2. "ANSI" shall mean the American National Standards Institute.
3. "Applicable Laws and Regulations" shall mean all applicable federal,
state and local laws, ordinances, rules and regulations, and all duly
promulgated orders and other duly authorized action of any
Governmental Authority having jurisdiction.
4. "Avoided Out-of-Pocket Cost" shall mean those costs Company would have
incurred to generate the Energy at Company's generating stations
including the incremental cost of fuel, labor, operations,
maintenance, emission allowances, taxes, and any other expenses
normally incurred by Company, including expenses for transmission and
transformation losses, that were not incurred because of the
oversupply of Energy by Operator.
5. "Direct Assignment Facilities" shall mean those facilities or portions
of facilities that are constructed by the Company for the sole
use/benefit of the Customer.
6. "Electric System" shall mean all lines, conduits, ducts, real estate,
fixtures, structures, and any other devices used or to be used for or
in connection with or to facilitate the transmission or distribution
of Energy.
7. "Emergency" shall mean a condition or situation that in the sole
judgment of Company affects or could affect Company's ability to
maintain safe, adequate, reliable and continuous electric service on
Company's Electric System or presents or could present risk of injury
to persons or damage to property.
8. "Energy" shall mean electric energy expressed in kilowatt-hours
("kWh") or in megawatt-hours ("MWh").
9. "Environment" shall mean soil, surface waters, ground waters, land,
stream sediments, surface or subsurface strata, ambient air, and any
environmental medium.
10. "Environmental Law" shall mean any environmental or health and safety
related law, regulation, rule, ordinance, guideline, criterion,
mandate, order or by-law at the federal, state, or local level,
whether existing as of the date hereof, previously enforced, or
subsequently enacted.
11. "FERC" shall mean the Federal Energy Regulatory Commission.
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12. "Generation Imbalance" shall mean a condition or situation when a
difference of greater than +/- 1.5% (or a minimum of +/- 2 MW) occurs
between the Energy scheduled for delivery to the Electric System and
the actual delivery of Energy to the Electric System.
13. "Good Utility Practice" shall mean any of the practices, methods and
acts engaged in or approved by a significant portion of the electric
utility industry during the relevant time period, or any of the
practices, methods and acts by which, in the exercise of reasonable
judgment in light of the facts known at the time the decision was
made, could have been expected to accomplish the desired result at a
reasonable cost consistent with good business practices, reliability,
safety and expedition. Good Utility Practice is not intended to be
limited to the optimum practice, method or act to the exclusion of all
others, but rather to be acceptable practices, methods, or acts
generally accepted in the region.
14. "Governmental Authority" shall mean any federal, state, local or
municipal governmental body; any governmental, regulatory or
administrative agency, commission, body or other authority exercising
or entitled to exercise any administrative, executive, judicial,
legislative, policy, regulatory or taxing authority or power; or any
court or governmental tribunal.
15. "Hunting" shall mean an undesirable oscillation or fluctuation of the
actual output of a generator over and under the desired output of the
generator operating in Steady State.
16. "IEEE" shall mean the Institute of Electrical and Electronic
Engineers.
17. "Inadvertent Generation Imbalance" shall mean a condition or situation
when a difference of less than or equal to +/- 1.5% (or a minimum of
+/- 2 MW) occurs between the energy scheduled and the actual delivery
of energy to the Electric System.
18. "In-Kind Energy" shall mean Energy purposefully over generated or
under generated by Operator to compensate Company for Inadvertent
Generation Imbalances. The delivery of In-Kind Energy shall be
scheduled with Company by Operator during a market period (i.e. on
peak or off peak as defined by FERC) that is similar to the market
period in which the Inadvertent Generation Imbalance occurred.
19. "Interconnecting Facilities" shall mean all equipment and facilities
that are necessary or desirable to interconnect the Plant to Company's
Electric System economically, reliably and safely, including all
connection, switching, transmission, distribution, safety,
engineering, communication and administrative facilities, and all
improvements, additions or extensions to Company's Electric System
attributable to or necessitated by the Plant.
20. "ISO" shall mean an Independent System Operator or any other FERC
approved Regional Transmission Organization whether for profit or not-
for-profit.
21. "Islanding Event" shall mean a condition or situation when the
Electric System outlet of Operator's Plant has become disconnected or
isolated from other parts
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of the Electric System in such a manner that adequate Electric System
interconnectivity is no longer available to deliver the output of
Operator's Plant in a safe and reliable manner.
22. "MAIN" shall mean Mid-America Interconnected Network.
23. "Metering Equipment" shall mean the meters and associated equipment
used for the measurement of energy, and all other meters and
associated equipment (including generation metering, telemetering,
temperature control, environmental control and communication
equipment) necessary from time to time for determining the status of
switching equipment related to the Plant, and for measuring energy
deliveries to the Electric System.
24. "NEC" shall mean the National Electric Code.
25. "NEMA" shall mean the National Electrical Manufacturers Association.
26. "NERC" shall mean the North American Electric Reliability Council,
including any successor thereto or any regional reliability council
thereof.
27. "NESC" shall mean the National Electric Safety Code.
28. "Network Upgrades" shall mean those modifications or additions to
transmission-related facilities that are integrated with and support
the Company's overall Electric System for the general benefit of all
users of the Company's Electric System.
29. "OSHA" shall mean the Occupational Safety and Health Act.
30. "Out-of-Pocket Cost" shall mean those costs incurred by Company to
generate the Energy at Company's generating stations including the
incremental cost of fuel, labor, operations, maintenance, emission
allowances, taxes, and any other expenses incurred by Company,
including expenses for transmission and transformation losses, that
would not have been incurred if the Energy had not been generated by
Company. Out-of-Pocket cost for Energy purchased from a source outside
of Company's Electric System will be the total amount paid therefore
by Company, including amounts paid for transmission and transformation
losses, which otherwise would not have been paid.
31. "Parallel Operation" shall mean the simultaneous use of Company's
Electric System by two or more Energy generators for the purpose of
delivering Energy and Capacity.
32. "Person" shall mean any individual, governmental authority,
corporation, limited liability company, partnership, limited
partnership, trust, association or other entity.
33. "Private Letter Ruling" shall mean a ruling issued by the Internal
Revenue Service ("IRS") to the taxpayer, applying or revealing the
IRS' interpretation of the tax laws to a specific set of facts.
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34. "Protection and Control Devices" shall mean such protective relay
systems, locks and seals, circuit breakers, automatic synchronizers,
associated communication equipment and other control and protective
apparatus as specified and approved by Company as necessary for the
operation of the Plant in parallel with Company's Electric System and
to permit Company's facilities to operate economically, reliably and
safely in their normal manner.
35. "Qualified Plant Operator" shall mean a Person that has been properly
trained to continuously monitor and control the operation and output
of the Plant.
36. "Regulated Materials" shall mean any chemical, substance, material, or
waste which is now or becomes listed, defined or regulated in any
manner by any federal, state or local law based upon, directly or
indirectly, such chemicals, substances, materials or wastes being
hazardous, harmful or potentially harmful to human health or to the
environment, including without limitation, asbestos, PCBs and
petroleum containing substances.
37. "Release" shall mean any releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing, or dumping into the Environment.
38. "Site" shall mean the real property owned or leased by Operator on
which the Plant is or is to be located.
39. "Steady State" shall mean the condition in which some specified
characteristic, such as a value, rate, periodicity, or amplitude,
exhibits only negligible change over an arbitrarily long interval of
time.
SECTION 2 - PLANT DESCRIPTION
A. One-Line Drawing
1. The Plant shall be constructed by Operator as illustrated in the
simple one-line drawing marked Attachment A-1, which shall be
attached hereto and hereby made a part of this Agreement.
B. Location
1. A map illustrating the geographical location of the Site shall be
marked Attachment A-2, which shall be attached hereto and hereby
made a part of this Agreement.
SECTION 3 - COMPANY AUTHORIZATION
A. Company hereby authorizes Operator to operate, at Operator's own
expense, Operator's Plant in parallel with Company and other users of
Company's Electric System; provided Operator's Plant is and continues
to remain in compliance with the requirements of this Agreement.
SECTION 4 - EQUIPMENT REQUIREMENTS
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To ensure continued reliable integration of Operator's Plant into Company's
Electric System, Operator shall provide, install and properly operate and
maintain the following equipment at Operator's Plant:
A. Metering
1. Operator shall provide, install and properly maintain at
Operator's expense all necessary Metering Equipment specified by
Company, including but not limited to: i) revenue quality
interchange metering, at a point or points agreed to by the
Parties, capable of measuring the instantaneous, hourly and total
amount of Energy being delivered from the Plant to the Electric
System; and ii) metering capable of instantaneously providing to
Company the amount of Energy being generated by each generator at
Operator's Plant.
2. At Company's sole discretion, Company may require Operator to
provide, install, own and properly maintain equipment to
telemeter the following data continuously from the Company
specified Metering Equipment to Company using ▇▇▇▇▇▇ 5000
protocol, or as approved by Company, its operational equivalent:
(a) Real Power in megawatts ("MW");
(b) Reactive Power in megavolt-ampere-reactive ("MVAR");
(c) Energy in megawatt-hours ("MWH") for each hour; and
(d) Depending on the number of generators and Electric System
configuration, Company may require Electric System MW, MVAR,
megavolts ("MV") and the breaker status for each generator
and interconnection point.
3. The Metering Equipment shall be tested by Operator at least one
(1) time each year at Operator's expense and at any other
reasonable time upon request by either Party, at the requesting
Party's expense. Operator shall provide Company with fourteen
(14) days notice of any testing to be performed on the Metering
Equipment and Company shall have the right to be present during
all testing and shall be furnished with all testing results in a
timely manner.
4. If testing of the Metering Equipment reveals any measurement
inaccuracies, the affected Metering Equipment shall be
recalibrated, repaired or replaced promptly by Operator such that
any measurement inaccuracies are rectified. If such testing
reveals measurement inaccuracies greater than 1%, payments made
in conjunction with Generation Imbalances or Inadvertent
Generation Imbalances shall be retroactively adjusted for the
actual period during which the inaccurate measurements were made,
if such period can be determined, or if the period cannot be
determined, for one-half of the time from the date of the
previous Meter Equipment test, but such period shall not exceed
six (6) months.
5. If, for any reason, any Metering Equipment is out of service or
malfunctions so that the amount of Energy delivered cannot be
ascertained or computed from the readings thereof, the Energy
delivered during the period of such outage shall be estimated and
agreed to by the Parties upon the best data available.
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6. At intervals requested by Company, Operator shall provide to
Company actual readings of the Metering Equipment to verify the
accuracy of the Metering Equipment data being telemetered to
Company.
B. Protective and Control Devices
1. Disconnecting Devices: Manually operated disconnecting devices
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must be provided and maintained by Operator as a means of
electrically isolating each generator and Operator's Plant from
Company's Electric System. Company shall approve the type of
manually operated disconnecting devices to be used and the
location for each device at the Plant. Each manually operated
disconnecting device shall be readily accessible to Company at
all times. The manually operated disconnecting device(s) must
provide a visible means of disconnection and have a means for
padlocking with Company's padlocks. Any manually operated
disconnecting device that is capable of isolating the Plant from
the Company's Electric System shall be under the jurisdictional
control of Company; and, except in the case of an Emergency, only
shall be operated by Operator after appropriate authorization is
received from Company.
2. Circuit Breakers: Operator shall provide, install, operate and
----------------
maintain at a location or locations agreed to by the Parties a
circuit breaker or circuit breakers capable of automatically
removing Operator's Plant from Company's Electric System. Each
circuit breaker installed by Operator must have sufficient
interruption capacity to interrupt the maximum available fault
current at each circuit breaker location. Company reserves the
right to maintain jurisdictional control over all circuit
breakers Company deems necessary to fulfill the power and
authority granted under the terms of this Agreement.
3. Fault and Loss of Utility Protection: Operator shall provide,
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install, operate and maintain all of the relays and associated
equipment, including communications equipment, required by
Company to safely, efficiently and reliably integrate Operator's
Plant into Company's Electric System. The relays and associated
equipment required by Company shall include, but not be limited
to the following: i) main fault protection relay(s) and
associated equipment capable of detecting a fault within
Operator's Plant and isolating Operator's Plant from Company's
Electric System when such faults occur; ii) fault protection
relay(s) and associated equipment capable of detecting faults on
Company's Electric System and isolating Operator's Plant from
Company's Electric System to prevent the Plant from contributing
to such faults; and iii) loss of Electric System supply relay(s)
and associated equipment capable of detecting Electric System
Islanding Events and isolating Operator's Plant from the Electric
System to prevent unsafe or unreliable feedback from Operator's
Plant into Company's Electric System. All of the relays required
for safe, efficient and reliable operation of the Plant onto
Company's Electric System shall be equipped with built-in test
provisions.
4. Out-of-step Protection or Generator Trip Scheme: At Company's
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sole discretion, Operator may be required to perform at
Operator's expense a stability analysis on its Plant to verify
whether the Plant loses or could lose synchronism under any
reasonable scenario. If the stability analysis reveals that the
Plant loses or could
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lose synchronism, Operator shall install at its expense out-of-
step protection or other generator trip schemes as required by
Company.
5. Over-Voltage and Under-Voltage Relays: Operator shall provide,
-------------------------------------
install, operate and maintain Over-Voltage and Under-Voltage
Relays which will trip the Circuit Breaker to prevent excessive
voltage excursions when the voltage level reaches or exceeds the
Over-Voltage or Under-Voltage Relay trip settings approved by
Company.
6. Over-Frequency and Under-Frequency Relays: Company may require
-----------------------------------------
Operator to provide, install, operate and maintain Over-Frequency
and Under-Frequency Relays at settings approved by Company to
detect excessive frequency fluctuations occurring on Company's
Electric System.
C. Generation Requirements
1. Company may require Operator to provide, install and maintain VAR
compensation equipment to correct Plant output to near unity
power factor. The location of the VAR compensation equipment and
the amount of VAR compensation to be added shall be agreed to by
the Parties. If necessary, Company may require Operator to
install VAR compensation equipment capable of being switched on
and off in stages to provide varying amounts of VAR compensation.
2. Company shall require for all synchronous generators and all
induction generators designed to operate similar to synchronous
generators the following:
(a) Automatic synchronization equipment that is supervised by
synchro-check relays to automatically synchronize the Plant
with Company's Electric System; and
(b) An automatic voltage regulator capable of maintaining
generator voltage, during Steady State conditions without
Hunting, within an operating range of +/- 5% of the rated
voltage of the generator.
3. All generators at the Plant shall comply with the latest ANSI
Standards C50.10 and C50.13 as such standards relate to waveform
and telephone interference.
4. Company may also require Operator to provide, install and
maintain on synchronous generators and induction generators
designed to operate similar to synchronous generators: i) free-
operating governors on prime movers for added stability depending
on generator size and location; ii) capacitors and/or reactors on
induction generators capable of providing voltage support equal
to that provided by synchronous generators.
D. Communication Devices
Operator shall provide, operate and maintain telephone service or
other similar communication devices as Company may reasonably request
to ensure
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Company's ability to provide Operator with operating instructions at
any time and ensure Company's ability to receive Metering Equipment
data from Operator's Plant on a real time basis.
E. High Voltage Equipment Standards
Any new high voltage equipment used by Operator shall be constructed
in accordance with the latest applicable standards of ANSI or the
NEMA. All installations by Operator shall comply with article 705 of
the NEC's latest revision or the requirements contained in this
Agreement, whichever are more restrictive.
SECTION 5 - OPERATION REQUIREMENTS
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A. Plant Operation and Control
1. Operator shall employ Qualified Plant Operators to monitor the
operation of the Plant and coordinate such operation with
Company's Electric System. Operator shall ensure that Qualified
Plant Operators are on duty at all times, twenty-four (24) hours
a day and seven (7) days a week.
2. At Company's sole discretion, Company may require Operator to
provide Company with direct digital control, or its functional
equivalent, of Operator's Plant output for safety or reliability
considerations under the terms and conditions of a separate
agreement ("Separate Agreement") that is mutually agreeable to
both Parties. Under no circumstance, however, may Company
dispatch the Plant to meet Company's load requirements unless
specifically authorized to do so under terms of the Separate
Agreement.
3. In an Emergency, Company may require Operator to raise or lower
production of Energy to maintain safe and reliable load levels
and voltages on Company's Electric System; provided, however, any
changes in the level of Plant output shall be implemented in a
manner consistent with safe operating procedures that are within
the design limitations of the Plant and Operator is reimbursed
for the cost it incurs to modify the output of its Plant in
accordance with the applicable provisions set forth in the
Company's OATT. At Company's discretion and where Company has
direct digital control, or its functional equivalent, of
Operator's Plant, Company may require that operation of the Plant
be placed in exclusive control of Company for the duration of an
Emergency.
4. The Parties will cooperate with each other in their analysis of
disturbances to either the Plant or Company's Electric System by
gathering data or providing access to any information relating to
any disturbance, including but not limited to, information from
protective relay targets, breaker operations and sequence of
events records.
B. Plant Disconnection
1. Company reserves the right, in accordance with Good Utility
Practice, to open any manually operated disconnecting device or
other devices under Company's functional control or
jurisdictional control, isolating Operator's generation, if in
Company's sole judgment:
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(a) Operator's generating equipment causes or could cause
objectionable interference with Company's service to other
customers or with the operation of Company's Electric
System;
(b) Operator's Protection and Control Devices cause or
contribute, or could cause or contribute to a hazardous
condition or a system Emergency;
(c) Continued Parallel Operation is or may be hazardous to, or
has or could have an adverse effect on Operator's Plant,
Company's Electric System or the general public; or
(d) Disconnection is necessary or appropriate to provide Company
personnel clearance for dead line or live line maintenance.
2. In an Emergency, Company may disconnect Operator's Plant from
Company's Electric System until the Emergency condition has been
corrected or until such condition no longer exists.
3. Except in the case of an Emergency, Company will provide
reasonable notice to Operator prior to any disconnection. In the
case of an Emergency, Company will provide to Operator, as soon
as reasonably practicable after the occurrence of the Emergency,
information relating to the nature of such Emergency and the
expected duration of the disconnection from Company's Electric
System.
4. Company shall not be liable in any way for any loss, claim or
damage arising from any action taken pursuant to this Section
5(B) or any other action taken in accordance with Good Utility
Practices, the NEC, the NESC, the practices, methods, acts,
criteria and guidelines of NERC, MAIN or any ISO or other
Applicable Laws and Regulations, including any such action
resulting in an inability or failure for any reason to accept
delivery of Operator's Plant output unless such action
constitutes negligence on the part of Company.
C. Operating Restrictions
1. The Parties may agree to restrict the Operator's Plant operations
in lieu of, or pending the completion of Electric System
modifications or upgrades that are, or would otherwise be
required for safe and reliable Parallel Operation prior to
Operator operating its Plant in parallel with other users of the
Company's Electric System. Any such operating restrictions agreed
to by the Parties shall be identified in Attachment B and
attached hereto and hereby made a part of this Agreement for all
purposes.
D. Performance Criteria
1. Harmonic Requirements: The harmonic content of the voltage and
---------------------
current waveforms injected into Company's Electric System by
Operator's Plant shall be restricted to levels that are in
accordance with the latest IEEE Standard 519 and which will not
cause excessive distortion of Company's waveform, telephone
interference, carrier interference or equipment operating
problems for Company or other users of Company's Electric System.
Company may require Operator to
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reduce or eliminate the existence of any excessive harmonics at
Operator's expense.
2. Speed Governor and Voltage Regulators: Whenever the Plant is
-------------------------------------
connected to or operated in parallel with Company's Electric
System, Operator shall do so with the Plant's speed governors
unrestrained and voltage regulators in automatic mode, in
accordance with the latest NERC Policy 1. The voltage operating
level of the Plant will be supplied to Operator by Company.
3. Voltage Control Requirements: Operator must be capable of
----------------------------
operating all of its generation sources at the Plant continuously
at 95% to 105% of each generator's rated output voltage. Operator
shall operate the Plant at the voltage levels reasonably
prescribed by Company, provided such voltage levels do not reduce
the megawatt output of the generators, except in an Emergency,
and such voltage levels are within the design limitations of the
Plant. The Plant shall automatically generate such reactive power
as may be necessary to maintain reactive support.
E. Maintenance Procedures
1. Operator shall prepare and maintain a daily operations log
containing the following information: unit availability,
maintenance outages, circuit breaker trip operations, relay
targets and unusual events. Company shall have the right to
access and review Operator's operation logs after providing
reasonable notice to Operator.
2. Operator shall be required to properly maintain and test the
following protective equipment and provide to Company, upon
Company's request, the maintenance and certified test report data
at the intervals described below:
(a) Relays: Per manufacturer recommendations, or upon reasonable
request of Company provided such request is based on Good
Utility Practice;
(b) Circuit Breakers: Per manufacturer's recommendations, or
upon reasonable request of Company provided such request is
based on Good Utility Practice;
(c) Communication Channels: Every two (2) years or such other
reasonable interval as requested by Company provided such
requests are based on Good Utility Practice;
(d) Batteries: As provided in the latest approved IEEE 450-1995
Standard.
Operator shall include with such certified test report data the
identity and qualifications of the personnel performing such
tests and such other information as Company reasonably requests.
F. Abnormal System Conditions
It is the sole responsibility of Operator to protect its equipment
from excessive negative sequence currents, Electric System faults,
Plant internal faults, voltage or frequency excursions or other
abnormal Electric System conditions, and Company
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shall have no responsibility or liability to Operator for any
consequence thereof or any loss, claim or damage resulting therefrom.
G. Automatic Reclosing
Operator shall be solely responsible for the protection of its
equipment from automatic reclosing operations by Company unless the
generator breaker at the Plant is part of or integral to a breaker and
a half or ring bus arrangement owned and operated by Company, in which
case the Company will assume the responsibility for properly
coordinating the reclosing operations on such generator breaker.
Except as otherwise provided herein, Company shall have no
responsibility for or liability in connection with damages caused by
automatic reclosing operations by Company out-of-phase with Operators
generators, all of the foregoing being the responsibility of Operator.
H. Scheduling Forecast
1. Operator or its designated agent shall submit to Company:
(a) By 12:00 PM each day, an hourly forecast of generation
scheduled for the following seven days;
(b) By November 1 of each year, on-peak and off-peak generation
and load forecasts for the following ten (10) years; and
(c) Any other forecast data covering other intervals that
Company may reasonably requests from Operator to comply with
open access requirements.
2. The forecast submitted by Operator pursuant to this Section
5(H)(1) will be used for planning purposes only. Operator will in
no way be bound to this forecast or penalized in any way for its
inaccuracy.
SECTION 6 - GENERATION IMBALANCES
---------------------------------
A. General
1. Operator will use commercially reasonable efforts to avoid
oversupplying or undersupplying Energy to Company's Electric
System.
B. Generation Imbalances
1. If Operator's actual delivery of Energy during any hour to
Company's Electric System differs from the scheduled amount by
greater than +/- 1.5% (or a minimum of +/- 2MW):
a. Operator will pay Company for Energy required to cover an
undersupply Generation Imbalance at a per megawatt-hour
("MWh") rate equal to the greater of (i) $100 per MWh; or
(ii) 110% of the Company's hourly Out-of-Pocket Cost; and
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b. Company will pay Operator for Energy resulting from an
oversupply Generation Imbalance at a per MWh rate equal to
90% of Company's hourly avoided Out-of-Pocket Cost, unless
such oversupply causes an increase in Company's hourly Out-
of-Pocket Cost, then Company shall charge Operator a rate of
110% of the increased cost incurred by Company.
C. Inadvertent Generation Imbalances
1. If Operator's actual delivery of Energy during any hour to
Company's System differs from the scheduled amount by an amount
less than or equal to +/- 1.5% (or a minimum of +/- 2MW),
Operator shall have thirty (30) days to correct the Inadvertent
Generation Imbalances by returning to Company the same amount of
In-Kind Energy. If Operator fails to correct the Inadvertent
Generation Imbalances within thirty (30) days, the Inadvertent
Generation Imbalances shall be subject to the following charges:
a. Operator will pay Company for Energy required to cover an
undersupply, Inadvertent Generation Imbalance at a per MWh
rate equal to $100 per MWh; and
b. Company will pay Operator for Energy resulting from an
oversupply, Inadvertent Generation Imbalance at a per MWh
rate equal to 90% of Company's hourly Avoided Out-of-Pocket
Cost, unless such oversupply caused an increase in Company's
hourly Out-of-Pocket Cost, then Company shall charge
Operator a rate of 110% of the increased cost incurred by
Company.
D. Impact of OATT Energy Imbalance Provisions
That portion of the output of Operator's Plant that is scheduled to
serve load within the Company's control area shall not be subject to
Generation or Inadvertent Generation Imbalance pursuant to this
Agreement, but shall be subject to the Energy Imbalance provisions
under the Company's OATT.
SECTION 7 - WAIVER OF REQUIREMENTS
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A. Waiver Process
1. Operator may request a waiver from or modification to any of the
requirements of this Agreement by making a written request to
Company containing the following information:
(a) The requirement that Operator desires to be waived or
modified;
(b) A detailed explanation stating the reasons Operator believes
the requirement should be waived or modified; and
(c) Other information necessary to support Operator's position,
including but not limited to, drawings, technical data, and
cost information.
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2. Company shall have thirty (30) days to respond in writing to
Operator stating whether such waiver or modification has been
granted or denied, and if the waiver or modification is denied,
the reason for such denial. Any waiver request submitted by
Operator and responded to by Company shall be marked Attachment
C, with each separate waiver or modification request numbered
sequentially. Attachment C shall be attached hereto and hereby
made a part of this Agreement.
SECTION 8 - ELECTRIC SYSTEM MODIFICATIONS
----------------------------------------
A. Direct Assignment Facilities
1. Any Electric System modifications, removals or additions made by
Company for the sole benefit of Operator, that would not
otherwise have been made except to accommodate the connection of
Operator's Plant to Company's Electric System, have been
specifically identified, if applicable, as Direct Assignment
Facilities in the Interconnection Agreement between Company and
Operator.
2. Operator shall reimburse Company for all ongoing Direct
Assignment Facility costs which shall include any Direct
Assignment Facility maintenance or replacement costs that Company
incurs during the term of this Agreement, and any tax liability
Company incurs as a result of such reimbursement, if applicable.
B. Network Upgrades
1. Any Electric System modifications, removals or additions made by
Company to accommodate a specific transmission service request
that are integrated with and support the Company's overall
Electric System for the general benefit of all users of Company's
Electric System shall be specifically identified as Network
Upgrades in an executed Transmission Service Agreement.
2. The transmission customer shall reimburse Company for the costs
associated with all Network Upgrades identified in any such
Transmission Service Agreement in accordance with FERC policy at
the time such Network Upgrades are made.
C. Plant and Electric System Modifications
1. The Parties recognize that from time to time certain
improvements, additions or modifications to Operator's Plant or
the Company's Electric System may be reasonably required by the
Company to continue operating the Plant economically, reliably
and safely into Company's Electric System. Such modifications to
the Operator's Plant shall be made at Operator's expense as may
be reasonably required by Company upon advanced written notice to
Operator. Any costs associated with modifications made to the
Company's Electric System pursuant to this Section 8(C) shall be
subject to reimbursement from Operator in accordance with FERC
policy at the time such modifications are made.
2. Operator agrees to provide to Company prior written notice of any
planned material change or modification to the Plant. If such
modification or change may
Page 14 of 26
affect, or require changes to Company's Electric System, Operator
agrees that it will not make such changes without written consent
from Company. If Company determines that such Electric System
changes would not have occurred but for the modifications or
changes at Operator's Plant, Operator shall reimburse Company, in
accordance with FERC policy, for all expenses Company incurs to
make such changes, including any taxes associated with such
reimbursement, if applicable.
D. Electric System Modification Standards
1. Any Electric System modifications or additions shall be designed,
constructed, operated and maintained by Company in accordance
with all local, state and federal rules, regulations, standards
and codes which are applicable to Company; including, but not
limited to, the NESC, the NEMA Codes, OSHA, Article 705 of the
NEC's latest revision, the practices, methods, acts, criteria and
guidelines of NERC, MAIN and any ISO having jurisdiction over
Company's Electric System, and any other rules, regulations or
orders of any public authority having jurisdiction.
SECTION 9 - ACCESS
------------------
Except in an Emergency, whereby the notice provision in this Section 9
shall not apply, representatives of each Party shall at all reasonable
times, and upon reasonable notice to the other Party, have access to only
those properties of the other Party that are reasonably necessary to
perform inspections and obtain information for the sole purpose of
implementing the provisions of this Agreement. The representatives of each
Party shall at all times while on the other Party's property, observe such
reasonable safety rules and other precautions as may be required by the
other Party, and the representatives of each Party shall conduct themselves
in a manner that will not in any way interfere with the operations of the
other Party.
SECTION 10 - NOTICES AND OTHER COMMUNICATIONS
---------------------------------------------
A. Notices
1. Except as otherwise specifically provided in this Agreement, any
notice, demand or request required or authorized by this
Agreement to be given by either Party to the other Party shall be
in writing. Any such notice, demand or request shall either be
personally delivered, delivered by mailing the same either in
first class mail or with a national private express mail service,
postage prepaid, or by transmitting the same by telecopy or
facsimile equipment (with receipt confirmed) to the other Party
at the address provided in this Section. Any such notice, demand,
or request delivered or mailed shall be deemed to have been given
when so delivered or mailed.
2. Notices and other communications by Operator to Company shall be
addressed to:
Ameren Services Company
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Manager - Energy Supply Operations
Page 15 of 26
▇.▇. ▇▇▇ ▇▇▇▇▇ (M/C 630)
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
3. Notices and other communications by Company to Operator shall be
addressed to:
Ameren Energy Generating Company
▇▇▇▇▇▇ Power Station
Attn: ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
4. Either Party may change its address or contact person by written
notice to the other Party in accordance with this Section.
SECTION 11 - BILLING
--------------------
A. Billing Procedure
1. Any bills that are rendered pursuant to this Agreement shall be
rendered by Company as soon as practicable in the month following
the calendar month in which they were incurred, or as soon
thereafter as practicable. Any such bills shall be prepared in a
manner setting forth the amount due in such detail and with such
segregation as may be needed for settlement under provisions of
this Agreement.
2. Each ▇▇▇▇ rendered by Company to Operator shall be paid by
Operator within thirty (30) days after receipt of the billing
statement. Any portion of the ▇▇▇▇ not paid within thirty (30)
days shall be considered past due. All payments shall be made in
immediately available funds payable to the Company, or by wire
transfer to a bank named by Company.
3. Interest on any past due amounts shall be calculated in
accordance with the methodology specified for interest on refunds
in the FERC's regulations at 18 C.F.R. (S) 35.19a(a)(2)(iii).
Interest on delinquent amounts shall be calculated from the due
date of the ▇▇▇▇ to the date of payment. When payments are made
by mail, bills shall be considered as having been paid on the
date of receipt by Company.
4. If Company determines through its ▇▇▇▇ calculation process that
Company owes Operator under provisions of this Agreement, Company
shall issue to Operator a statement indicating the amount Company
will be paying Operator. Any such statements shall be prepared in
a manner setting forth the amount due by Company to Operator in
such detail and with such segregation as may be needed for
settlement under provisions of this Agreement. Company agrees to
pay Operator for the amounts due within thirty (30) days after
Company issues the statement to Operator. If Company fails to
make payment within thirty (30)
Page 16 of 26
days, interest on any past due amounts shall be calculated as
provided in Section 11A(3) of this Agreement.
B. Billing Disputes
1. If Operator disputes the correctness of a ▇▇▇▇, it will
nevertheless, pay the undisputed portion of such ▇▇▇▇ plus the
disputed amount and shall submit to Company a written statement
detailing the items disputed.
2. If the Parties are unable to agree upon the disputed items, such
items shall be settled by arbitration as prescribed in Section 12
of this Agreement and in accordance with the rules of the
American Arbitration Association.
3. Any refund ordered as a result of arbitration or as a result of a
Private Letter Ruling shall be subject to interest calculated in
accordance with the methodology specified for interest on refunds
in the FERC regulations at 18 C.F.R. (S) 35.19a(a)(2)(iii).
Interest on refunds shall be calculated from the date upon which
the amount to be refunded was paid to the date of the refund.
SECTION 12 - DISPUTE RESOLUTION
-------------------------------
A. Arbitration
1. Any controversy, claim, counterclaim, defense, dispute,
difference or misunderstanding arising out of, or relating to,
this Agreement, or breach thereof, shall be settled by
arbitration. The arbitration shall be conducted before a single
neutral arbitrator appointed by the Parties, shall be held in St.
Louis, Missouri, under the rules of the American Arbitration
Association, shall be binding upon the Parties, and judgment upon
any award rendered may be entered in any court having
jurisdiction. If the Parties fail to agree upon a single
arbitrator, each Party shall choose one arbitrator who shall sit
on a three-member arbitration panel. The two arbitrators so
chosen shall select a third arbitrator to chair the arbitration
panel.
2. Each Party shall be responsible for its own costs incurred during
the arbitration process and for the following costs, if
applicable:
(a) the cost of the arbitrator chosen by the Party to sit on the
three member panel and one half of the cost of the third
arbitrator chosen; or
(b) one half the cost of the single arbitrator jointly chosen by
the Parties.
3. In resolving any controversy, claim, counterclaim, dispute,
difference or misunderstanding the arbitrator(s) shall only have
the power and authority to interpret and apply the Agreement as
written. They shall not have the power or authority to add to the
Agreement.
4. In no event shall the arbitrator(s) award to either Party any
indirect, special, incidental or consequential damages with
respect to any claim arising out of, or relating to, this
Agreement, or breach thereof.
Page 17 of 26
SECTION 13 - INSURANCE
----------------------
A. Coverage
1. During the term of this Agreement, Operator shall procure, pay
premiums for and maintain in full force and effect, with Operator
as named insured and Company and its employees, agents and
affiliates as additional insureds, comprehensive general and/or
excess liability insurance, including coverage for:
(a) products and completed operation;
(b) broad form contractual liability; and
(c) explosion, collapse and underground damage exclusion
deletion,
all of the aforementioned coverages with limits not less than $10
million each occurrence for bodily injury and with limits of not
less than $5 million each occurrence, and $10 million aggregate,
for property damage; comprehensive auto liability insurance with
combined single limits of not less than $1 million for bodily
injury and property damage, including owned, blanket non-owned
and hired coverage; worker's compensation insurance in amounts
required by applicable state law; and employer's liability with
limits not less than $1 million per accident or disease.
2. Each insurance policy provided by Operator shall include the
following:
(a) At least thirty (30) days prior written notice of
cancellation or material change to Company; and
(b) A waiver of subrogation in favor of Company, its affiliates
and their officers, directors, agents, subcontractors and
employees.
3. Proof of insurance for all coverages specified herein shall be
provided to the Company prior to the commencement of constructing
any facilities to connect the Plant to Company's Electric System,
and from time to time thereafter as reasonably requested by
Company. All insurance coverage required under this Agreement
shall be provided by insurance companies reasonably acceptable to
Company.
4. The insurance coverages described above shall be primary to any
other coverage available to Company and shall not be deemed to
limit Operator's liability under this Agreement.
SECTION 14 - LIMITATION ON DAMAGES
----------------------------------
UNDER NO CIRCUMSTANCE SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, OR ANY OF THEM, BE LIABLE TO THE
OTHER PARTY, WHETHER IN TORT, CONTRACT OR OTHERWISE FOR ANY SPECIAL,
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS, EXCEPT TO THE EXTENT A PARTY IS LIABLE TO A THIRD PARTY FOR SUCH
DAMAGES. THE
Page 18 of 26
PARTIES' LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES
(INCLUDING DAMAGES DESCRIBED IN THE PRECEDING SENTENCE FOR WHICH A PARTY IS
LIABLE TO A THIRD PARTY), AND ALL OTHER DAMAGES SPECIFIED IN THIS SECTION
ARE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE
NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT, OR ACTIVE OR PASSIVE. THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
SECTION 15 - INDEMNIFICATION
----------------------------
A. Subject to the application of the provisions of Section 15(D) to
matters relating to the Environment or any Regulated Materials,
Operator shall indemnify, hold harmless and defend Company and all of
Company's Affiliates and their directors, officers, shareholders,
agents, employees, successors and assigns from and against any and
all:
1. loss, liability, damage, cost or expense, including damage and
liability for bodily injury to or death of, or damage to property
of Persons other than Company and all of Company's Affiliates and
their directors, officers, shareholders, agents, employees,
successors and assigns (including reasonable attorney's fees and
expenses, litigation costs, consultant fees, investigation fees
and sums paid in settlements of claims and any such fees and
expenses incurred in enforcing this indemnity or collecting any
sums due hereunder) (hereinafter referred to collectively as
"Loss") to the extent arising out of, in connection with or
resulting from Operator's breach of any of the representations or
warranties made in, or Operator's failure to perform any of its
obligations under, this Agreement, or
2. Loss for bodily injury to or death of, or damage to property of,
Persons to the extent arising out of, in connection with or
resulting from Operator's design, installation, construction,
ownership, operation, repair, relocation, replacement, removal or
maintenance of, or the failure of, the Plant or any of Operator
installed Interconnecting Facilities and regardless whether
arising under Applicable Laws and Regulations or otherwise;
provided, however, that Operator shall not have any indemnification
obligations under this Section 15(A) or under Section 15(D) in respect
of any Loss resulting from the negligence of Company or Company's
Affiliates and their directors, officers, shareholders, agents,
employees, successors and assigns to the extent such negligence is the
sole proximate cause of the Loss.
B. Company shall indemnify, hold harmless and defend Operator and each
and all of Operator's Affiliates and their directors, officers,
shareholders, agents, employees, successors and assigns from and
against any and all Loss, to the extent arising out of, in connection
with or resulting from Company's breach of any of the representations
and warranties made in, or Company's failure to perform any of its
obligations under, this Agreement; provided, however, that Company
shall not have any indemnification obligations under this Section
15(B) or under Section 15(D) in respect of any Loss resulting from the
negligence of Operator or Operator's Affiliates and their directors,
officers, shareholders, agents, employees, successors and assigns to
the extent such negligence is the sole proximate cause of the Loss.
Page 19 of 26
C. In the event that an indemnifying Party is obligated to indemnify and
hold any indemnified Person harmless under this Section 15, the amount
owing to the indemnified Person shall be the amount of such
indemnified Person's actual Loss, net any insurance or other recovery.
D. Subject to the terms and provisions of this indemnity and the
provisions of Sections 15(A), 15(B) and 15(C), each Party shall
protect, defend, indemnify and save harmless the other Party, its
Affiliates, directors, officers, shareholders, agents, employees,
successors and assigns from, against and in respect of, any and all
Loss and reasonable expenses for accounting, consulting, engineering,
investigation, cleanup, response, removal and/or disposal and other
remedial costs, directly or indirectly imposed upon, incurred by or
asserted against any indemnified Person arising out of or in
conjunction with any claim or claims by any other Person or Persons
(including, without limitation, a Governmental Authority), arising out
of or in connection with (i) the use, generation, refining,
manufacture, transportation, transfer, production, processing,
storage, handling, or treatment of any Regulated Materials, on, under
or from the facilities of the indemnifying Party; (ii) a Release, or
threatened Release of any Regulated Materials on, under or from the
indemnifying Party; (iii) the cleanup, removal and/or disposal of any
Regulated Materials on, under or from the facilities of the
indemnifying Party required by any Environmental Law or any
Governmental Authority; (iv) any personal exposure or injury
(including wrongful death) or property damage (real or personal)
arising out of or related to such Regulated Materials, including any
damage arising out of any cleanup required by the Governmental
Authorities or Environmental Laws; (v) any lawsuit brought or
threatened, settlement reached, or government order relating to such
Regulated Materials; or (vi) any violation of laws, orders, rules,
regulations, requirements, guidelines, or demands of Governmental
Authorities, including permits and licenses under Environmental Laws,
which are based upon or in any way related to such Regulated
Materials. Nothing in this Section shall require a Party to indemnify
the other Party with respect to any matter described in clauses (i)
through (vi) above except in connection with the Plant, the Plant Site
and the Interconnecting Facilities.
E. Nothing in this Agreement shall be construed as creating any
relationship between the Parties, including any partnership or joint
venture, other than that of independent contractors. Nothing in this
Agreement or any action taken hereunder shall be construed to create
any duty, liability, or standard of care to any Person not a party to
this Agreement.
SECTION 16 - FORCE MAJEURE
--------------------------
A. Force Majeure Defined
The term "Force Majeure" means any cause beyond the reasonable control
of and without fault or negligence of the Party claiming Force
Majeure, including but not limited to acts of God, strike, flood,
earthquake, storm, fire, lightning, explosion, epidemic, war, riot,
civil disturbance, sabotage, changes in Applicable Laws and
Regulations subsequent to the date hereof and action or inaction by
any Governmental Authority which, in any of the foregoing cases, by
exercise of due foresight such Party could not reasonably have been
expected to avoid, and which, by the exercise of due diligence, it is
unable to overcome.
Page 20 of 26
B. Effect of Force Majeure
1. Except for obligations to make any payments under this Agreement,
the Parties shall be excused from performing their respective
obligations under this Agreement and shall not be liable in
damages or otherwise if and to the extent that they are unable to
so perform or are prevented from performing by a Force Majeure,
provided that:
(a) the non-performing Party, as promptly as practicable after
the Party reasonably determines that a Force Majeure event
has occurred and such Force Majeure event will adversely
impact the Party's ability to perform its obligations
hereunder, gives the other Party written notice describing
the particulars of the occurrence;
(b) the suspension of performance is of no greater scope and of
no longer duration than is reasonably required by the Force
Majeure;
(c) the non-performing Party uses all reasonable efforts to
remedy its inability to perform; and
(d) as soon as the non-performing Party is able to resume
performance of its obligations excused as a result of the
occurrence, it gives prompt written notification thereof to
the other Party.
SECTION 17 - REPRESENTATIONS AND WARRANTIES
-------------------------------------------
A. Operator's Representations and Warranties
Operator makes the following representations and warranties:
1. Operator is duly organized and validly existing under the laws of
the State of Illinois, is qualified to do business under the laws
of the State of Illinois, is in good standing under its
certificate of incorporation in the State of Illinois, has the
requisite power and authority to own its properties, to carry on
its business as now being conducted, and to enter into this
Agreement and the transactions contemplated herein and perform
and carry out all covenants and obligations on its part to be
performed under and pursuant to this Agreement, and is duly
authorized to execute and deliver this Agreement and consummate
the transactions contemplated herein.
2. Operator is not prohibited from entering into this Agreement or
discharging and performing all covenants and obligations on its
part to be performed under and pursuant to this Agreement. The
execution and delivery of this Agreement, the consummation of the
transactions contemplated herein and the fulfillment of and
compliance with the provisions of this Agreement will not
conflict with or constitute a breach of or a default under, or
require any consent, license or approval that has not been
obtained pursuant to, any of the terms, conditions or provisions
of any Applicable Laws and Regulations, any order, judgment,
writ, injunction, decree, determination, award or other
instrument or legal requirement of any Governmental Authority,
the certification of incorporation and bylaws of Operator or any
contractual limitation, restriction or outstanding trust
indenture,
Page 21 of 26
deed of trust, mortgage, loan agreement, lease, other evidence of
indebtedness or any other agreement or instrument to which
Operator is a Party or by which it or any of its property is
bound.
3. Operator has taken all such actions as may be necessary or
advisable and proper to authorize this Agreement, the execution
and delivery hereof, and the consummation of transactions
contemplated hereby.
4. With regard to the Site on which the Plant will be constructed
and operated, Operator is in full compliance with, and is not in
violation of or liable under, any Environmental Law. Operator has
no basis to expect, nor has it or any other Person for whose
conduct it may be held to be responsible, received, any actual or
threatened order, notice, or other communication from (i) any
Governmental Authority or private citizen acting in the public
interest, or (ii) the current or prior owner or operator of the
Site, of any actual or potential violation or failure to comply
with any Environmental Law with respect to the Site.
5. This Agreement is a legal, valid and binding obligation of
Operator enforceable in accordance with its terms, except as
limited by laws of general applicability limiting the enforcement
of creditor's rights or by the exercise of judicial discretion in
accordance with general principles of equity.
B. Company's Representations and Warranties
Ameren Services Company (hereinafter "Ameren Services"), Union
Electric Company (hereinafter "UE") and Central Illinois Public
Service Company (hereinafter "CIPS") hereby make the following
representations and warranties:
1. Ameren Services and UE are corporations duly organized, validly
existing under the laws of the State of Missouri, and in good
standing under their certificates of incorporation and the laws
of the State of Missouri. CIPS is a corporation duly organized,
validly existing under the laws of the State of Illinois, and in
good standing under its certificate of incorporation and the laws
of the State of Illinois.
2. Pursuant to a validly executed General Services Agreement
(hereinafter "Agency Agreement") by and between Ameren Services,
UE and CIPS, Ameren Services is duly authorized to serve as
designated agent for UE and CIPS. Through the powers granted in
the Agency Agreement, Ameren Services has the requisite power and
authority to carry on the business as now being conducted and to
enter into this Agreement and the transactions contemplated
herein and perform and carry out all covenants and obligations on
its part to be performed under and pursuant to this Agreement and
is duly authorized to execute this Agreement and consummate the
transactions contemplated herein.
3. Ameren Services is not prohibited from entering into this
Agreement or discharging and performing all covenants and
obligations to be performed under and pursuant to this Agreement.
The execution and delivery of this Agreement, the consummation of
the transactions contemplated herein and the fulfillment of and
compliance with the provisions of this Agreement will not
conflict with or constitute a breach of or default under, or,
except as set forth in Section 18(L), require any consent,
license or approval that has not been obtained pursuant to
Page 22 of 26
any of the terms, conditions or provisions of any Applicable Laws
and Regulations, any order, judgment, writ, injunction, decree,
determination, award or other instrument or legal requirement of
any Governmental Authority, the certificate of incorporation and
by-laws of Ameren Services, UE and CIPS or any contractual
limitation, corporate restriction or outstanding trust indenture,
deed of trust, mortgage, loan agreement, lease, other evidence of
indebtedness or any other agreement or instrument to which Ameren
Services is a Party or by which Ameren Services', UE's or CIPS'
property is bound.
4. Ameren Services has taken all such corporate actions as may be
necessary or advisable and proper to authorize this Agreement,
the execution and delivery hereof, and the consummation of
transactions contemplated hereby.
5. This Agreement is a legal, valid and binding obligation of Ameren
Services enforceable in accordance with its terms, except as
limited by laws of general applicability limiting the enforcement
of creditor's rights or by the exercise of judicial discretion in
accordance with general principals of equity.
SECTION 18 - MISCELLANEOUS PROVISIONS
A. Term
This Agreement shall bind the Parties hereto from the date first
written above, and shall extend, subject to and in accordance with its
terms and conditions, until the interconnection between Company and
Operator has been abandoned, cancelled, permanently disconnected or
until the development, construction, or operation of the Plant by
Operator or Operator's assignees or transferees (if applicable) has
terminated. Following the end of the term, the Parties shall no longer
be bound by the terms and conditions of this Agreement except as
specifically provided in Section 18(M) and except to the extent of
rights, duties or obligations accruing before the end of the term.
B. Severability
If any provision or provisions of this Agreement shall be held invalid
or unenforceable, such provision or provisions shall be invalid or
unenforceable only to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable any
other provision hereof.
C. Modifications
No amendment or modification to this Agreement or waiver of a Party's
rights hereunder shall be binding unless the same shall be in writing
and signed by the Party against which enforcement is sought.
D. Prior Agreement Superceded
This Agreement constitutes the entire agreement between the Parties
relating to the subject matter hereof and its execution supercedes all
previous agreements, discussions, communications and correspondence
with respect to such subject matter.
Page 23 of 26
E. Counterparts
This Agreement may be executed in any number of counterparts, and each
executed counterpart shall have the same force and effect as an
original instrument.
F. Further Assurances
The Parties agree:
1. to furnish upon request to each other such further
information;
2. to execute and deliver to each other such other documents;
and
3. to do such other acts and things, all as the other Party may
reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in
this Agreement.
G. No Third Party Beneficiaries
This Agreement is not intended to, and does not, confer upon any
Person other than the Parties hereto and their respective successors
and permitted assigns, any rights or remedies hereunder.
H. Successors and Assigns
1. This Agreement shall inure to the benefit of and be binding upon
Company and Operator and their respective successors and
permitted assigns, provided, that Operator shall not sell or
otherwise transfer the Plant to any Person unless such Person
assumes all of Operator's obligations under this Agreement, and
agrees to perform this Agreement pursuant to a written agreement
reasonably satisfactory to Company.
2. Company shall be permitted to assign or otherwise transfer this
Agreement or its rights, duties and obligations hereunder, in
whole or in part, by operation of law or otherwise, without
Operator's consent, (i) to any ISO, or (ii) to any successor to
or transferee of the direct or indirect ownership or operation of
all or part of the Company's Electric System, and upon the
assumption by any such permitted assignee of Company's rights,
duties and obligations hereunder, Company shall be released and
discharged therefrom.
3. Operator shall be permitted to assign or otherwise transfer this
Agreement or its rights, duties and obligations hereunder, in
whole or in part, by operation of law or otherwise, without
Company's consent to any chartered financial institution
(hereinafter "Lender") as collateral security for financing of
the Plant. Company agrees to provide to such Lender(s) on a
timely basis with such information and such consents, opinions,
resolutions and related documents as are reasonably requested by
such Lender(s) and are ordinary and customary in connection with
the closing of a project financing for facilities such as the
Plant.
Page 24 of 26
4. Except as provided in this Section 18(H), neither Party shall
assign, pledge or otherwise transfer this Agreement or any right
or obligation under this Agreement without first obtaining the
other Party's written consent, which consent shall not be
unreasonably withheld or delayed, and any assignment or transfer
of this Agreement or any rights, duties or interests hereunder by
any Party without the written consent of the other Party shall be
null and void and of no force and effect.
I. Submission to Jurisdiction; Waivers
Subject to the provisions of Section 12, each of the Parties hereby
irrevocably and unconditionally:
1. submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive
jurisdiction of the state courts located in St. Louis County,
Missouri or the U.S. District Court, Eastern District of
Missouri, and appellate courts from any therefrom;
2. consents and agrees that any such action or proceeding may be
brought in and only in such courts and waives any objection that
it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or
claim the same;
3. agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail),
postage prepaid, to the other Party at its address set forth in
Section 10, or at such other address of which the other Party
shall have been notified pursuant thereto; and
4. agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law.
J. Waivers
The failure of either Party to insist in any one or more instance upon
strict performance of any of the provisions of this Agreement or to
take advantage of any of its rights under this Agreement shall not be
construed as a general waiver of any such provision or the
relinquishment of any such right, but the same shall continue and
remain in full force and effect, except with respect to the particular
instance or instances.
K. Choice of Laws
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Missouri, irrespective of the
application of any conflicts of laws provisions.
L. Regulatory Approval
Page 25 of 26
This Agreement shall be subject to the approval of the regulatory
agencies having jurisdiction. In the event that this Agreement is not
accepted in its entirety by all such agencies, either Party may
terminate this Agreement immediately.
M. Survival
The provisions of Sections 5B, 14, 15, 18I and 18K, including the
rights and obligations of the Parties therein provided, shall survive
the termination or expiration of this Agreement and the performance by
the Parties of their obligations hereunder.
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement on their behalf as of the day and year
first above written.
Ameren Energy Generating Company Ameren Services Company
By: __________________________ By:________________________________
Title:______________________________ Title:_____________________________
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