OHIO VALLEY GAS CORPORATION LONG-TERM TRANSPORTATION SERVICE CONTRACT FOR REDELIVERY OF NATURAL GAS
Exhibit 10.32
THIS
CONTRACT, made and entered into this
20th day of March 2007 by and
between OHIO VALLEY GAS CORPORATION, an Indiana corporation, its successors and assigns
(hereinafter called “Company”), and CARDINAL ETHANOL, LLC, an Indiana corporation, its successors
and assigns (hereinafter called Customer).
WITNESSETH:
In consideration of the mutual covenants and agreements as set forth herein, the parties hereto
covenant and agree as follows:
ARTICLE
I — GAS TO BE REDELIVERED
Company agrees to receive, transport and redeliver natural gas to Customer per the terms and
conditions set forth herein, and in accordance with any and all orders of the Indiana Utility
Regulatory Commission (“Commission”). Customer agrees to accept redelivery of such gas from Company
and to pay Company, as set forth in Article V hereof, for such services as related to the following
quantities of natural gas:
| a. | All of the natural gas requirements of Customer up to a maximum of 100,000
therms per purchase gas day, and; |
||
| b. | Customer’s estimated annual natural gas requirements of 34,000,000 therms. |
Customer shall make written application to Company for service in excess of the quantities set
forth above, and such application shall require written approval by Company in accordance with its
ability to provide such additional service without detriment to its other customers.
Company has no contractual obligation to provide natural gas to Customer from Company’s system
supply, nor is Company contractually committed to pay interstate pipeline charges of any kind
(demand, capacity, reservation, commodity, etc.) related to Customer’s natural gas supply.
Customer agrees to provide Company with sufficient documentation, including, but not limited to
transportation arrangements and its source(s) of natural gas supply, and other information needed
to permit prior verification and approval of the following:
| c. | Customer has met all applicable regulatory requirements and has the means
(including, but not limited to third party arrangements) for delivering said gas (of
specified quality, quantity, pressure, etc.) to the agreed on Company receipt point(s);
and, |
||
| d. | Customer has the means (including, but not limited to third pasty arrangements)
for receiving and accepting said gas at the agreed to Company delivery point(s). |
Company may require reasonable assurances from Customer that the natural gas supply will physically
flow to Company’s designated receipt point(s) on a timely and uninterrupted basis.
ARTICLE II — TWENTY-FOUR (24) HOUR PURCHASE GAS DAY
Purchase gas day shall be defined as that continuous twenty four (24) hour period commencing at
9:00 am. Central Clock Time each day, and continuing to 9:00 a.m. Central Clock Time the next day.
ARTICLE III — DELIVERY PRESSURE
Delivery pressure has been agreed to and shall be no less than 60 psig.
ARTICLE
IV — REGULATORY APPROVAL
Prior to the initiation of service to Customer under this Contract, approval by the Commission will
be sought and obtained by Company, and said Contract shall be subject to revocation, amendment or
rescission by the Commission in accordance with applicable Indiana statutes, regulations and rules.
ARTICLE V — RATES AND CHARGES
For all gas received for and redelivered to Customer by Company, Customer agrees to pay Company in
accordance with the rates and charges specified herein, and be subject to all applicable provisions
and charges herein or as may be required by the Commission from time to time.
| Throughput Rate: | For the first five (5) years (i.e. the first sixty (60) billing cycles) of the
Term of Contract, $0.03138 per therm for all gas received, transported and redelivered to
Customer’s meter, and for the ensuing five (5) years (i.e. the next sixty (60) billing
cycles), $0.0138 increased by the compounded inflation rate over the first five (5) years
of the Term of Contract as established and determined by the U.S. Consumer Price Index –All
Urban Consumers (CPI-U) for Transportation (Series CUUR000SAT). In no case shall the
throughput rate for any renewal contract period be less than the rate for the immediately
preceding period. |
|||
| Service Charge: | For the first five (5) years (i.e. the first sixty (60) billing cycles) of the
Term of Contract, $750.00 per delivery meter per billing cycle per month., and for the
ensuing five (5) years (i.e. the next sixty (60) billing cycles), $750.00 increased by the
compounded inflation rate over the first five (5) years of the Term of Contract as
established and determined by the U.S. Consumer Price Index – All Urban Consumers (CPI-U)
for Transportation (Series CUUROOOSAT), In no case shall the monthly service charge for any
renewal contract period be less than it was for the immediately
preceding period. |
Fuel Loss (Unaccounted-for-Gas) Charge: Company will retain 0.7% of the gas received at
Company’s city gate to account for fuel loss within Company’s distribution system. The
Throughput Rate will not apply to retained gas volumes.
ARTICLE VI — MINIMUM ▇▇▇▇ PORTATION SERVICES
The parties specifically acknowledge and agree that for Company to recover its significant
investment in the additional physical plant necessary to receive, transport and redeliver natural
gas to Customer, and to allow a fair return on said investment, the Throughput Rate, Service
Charge, and Term of Contract (Article XX) set forth herein have been proposed by Company in good
faith based on Customer’s projected use of natural gas, and more specifically Company’s redelivery
(transportation) services for same, as Customer’s sole source of production fuel. It is further
specifically agreed, by the parties hereto, that Customer shall, for a period of seven (7) years
from the Contract Effective Date recorded herein, be subject to minimum annual throughput charges
equal to the applicable throughput rate, as set forth in Article V hereof, times ninety percent
(90%) of the Customer’s estimated annual natural gas requirements, as set forth in Article I
hereof, plus minimum annual service charges equal to twelve (12) times the applicable monthly
service charge as set forth in Article V hereof. There shall be an annual “true-up” on the
anniversary of the Contract Effective Date at which time Customer shall be billed for any shortfall
in the actual throughput volume (in therms), Such minimum charges shall be appropriately adjusted
as (it) necessary to account for any failure on the part of the Company to provide the required
redelivery (transportation) service. Should Customer, for whatever reason(s) unilaterally determine
that the services provided by Company under this Contract should be terminated at any time within
the first seven (7) years of the Contract, Customer shall immediately pay to Company minimum
throughput and monthly service charges for the remainder of the take-or-pay period.
All receipt and redelivery of Customer’s natural gas shall be subject to Company’s General
Rules and Regulations Applicable to Gas Service which are subject to periodic review and
approval by the Commission, and are made a part of this Contract as if specifically set forth
herein.
ARTICLE VII — MONTHLY ▇▇▇▇.
Company shall render bills to Customer, on or before the fifth (5th) business day of each month,
for all gas delivered during the preceding month. Both parties shall have the right to examine, at
reasonable times, the books and records to the extent necessary to verify the accuracy of any
statement, charge, or computation made under or pursuant to any of the provisions herein.
ARTICLE VIII — CURTAILMENT
Company shall have the right to curtail or discontinue acceptance, transportation, or redelivery of
natural gas under this Contract when:
| a. | After notification by Company to not exceed its Daily Nomination, Customer
exceeds its Daily Nomination; |
||
| b. | The interstate pipeline’s Electronic Bulletin Board (EBB) reports Customer’s
supply quantity is less than as nominated to Company; |
| c. | Accident, breakage or other causes of disruption of natural gas delivery into the
interstate pipeline system occur which preclude the delivery of Customer’s natural gas
supply to Company; or, |
||
| d. | Accident, breakage or other causes of disruption of natural gas delivery to
Customer on Company’s distribution system is beyond Company’s control. |
Company will attempt to verify the EBB information with the interstate pipeline prior to invoking a
curtailment at Customer’s meter. Company’s usage of EBB information shall be deemed reasonable by
the parties hereto, and Company will not be liable for the accuracy of the information obtained
from the EBB. Company will attempt to provide a minimum one (1) hour notice, either verbal, or
written, of its intent to curtail or discontinue acceptance, transportation, or redelivery of
natural gas.
Any natural gas that flows into Company’s city gate station for Customer shall be redelivered to
Customer. Gas usage by Customer during a curtailment period in excess of the quantity allowed shall
be considered Unauthorized Use and shall be subject to the Unauthorized Use Charge.
ARTICLE IX — UNAUTHORIZED USE CHARGE
If Customer fails to completely curtail its use of natural gas within one (1) hour of Company’s
verbal or written notice, Customer shall be billed and agrees to pay a penalty of $3.00 per therm
for all gas consumed during the curtailment period. Said penalty shall be in addition to all other
applicable charges, including, but not limited to any interstate pipeline penalties.
ARTICLE X— OVERRUN SERVICE AND DAILY BALANCING CHARGE(S)
| a. | Authorized Overrun |
| (1) | Each twenty-four (24) hour purchase gas day, Company will allow Customer
an allowable tolerance on their Daily Nomination, without additional charge. |
||
| (2) | if the difference between Customer’s actual take for a twenty-four (24)
hour purchase gas day, and its Daily Nomination, as on file with the Company’s gas
supply department for the applicable twenty-four (24) hour purchase gas day, is not
within the allowable tolerance, those quantities beyond the allowable tolerance,
assuming no curtailment action has been imposed, shall be considered an Authorized
Overrun and shall be subject to a Daily Balancing Charge. |
| b. | Daily Nominations |
||
Customer agrees to provide Company with written Daily Nominations in a format acceptable
to Company. All Daily Nominations are due in Company’s gas supply department by the 25th
day of each calendar month for the upcoming month’s quantities, in therms, and shall be
detailed by calendar day. All written changes to the Daily Nominations, when received in
Company’s gas supply department by 12:00 p.m. Eastern Time on a scheduled Company
working day, shall become effective the next twenty-four (24) hour purchase gas day, or
such later twenty-four (24) hour purchase gas day specified |
by the Customer. All written changes to the Daily Nominations shall be in effect for the
remaining calendar days of the applicable month. For the purpose of this Contract,
facsimile transmissions or emails to Company’s gas supply department will be deemed
written notice upon receipt by Company. Only those volumes applicable to Customer as
shown on the interstate pipeline company’s Electronic Bulletin Board (EBB) will be
recognized when billing Customer and determining Daily Balancing and Cash Out of Monthly
Imbalance charges. |
|||
Customer agrees that it is the responsibility of Customer and its agent to ensure that
the correct quantities of natural gas are properly nominated to the applicable receipt
and delivery points utilized by Company. Company assumes no responsibility or liability
for the accuracy of nominations by Customer. |
|||
| c. | Allowable Tolerance |
The allowable tolerance per each twenty-four (24) hour purchase gas day shall be five (5)
percent of Customer’s applicable Daily Nomination on file with the Company.
| d. | Daily Balancing Charge |
Quantities of natural gas used that are not within the allowable tolerance of their Daily
Nomination, shall be subject to a Daily Balancing Charge of $.025 per therm. The Daily Balancing
Charge shall apply to quantities greater than and less than the allowable tolerance. The Daily
Balancing Charge shall be applied daily and there will be no netting of daily imbalances.
| e. | Unauthorized Overrun |
| (1) | If Customer has been informed by Company to stay within its Daily
Nomination (plus allowable tolerance), and then uses a quantity of natural gas
which is greater than its Daily Nomination (plus allowable tolerance) without prior
written or verbal approval of Company, the excess shall constitute an Unauthorized
Overrun and Customer shall pay Company a penalty of $3.00 per therm for all natural
gas used in excess of the Daily Nomination (plus allowable tolerance) for the
applicable twenty-four (24) hour purchase gas day. This penalty shall be in
addition to all other applicable charges, including, but not limited to any
interstate pipeline penalties. |
||
| (2) | The payment of a penalty for unauthorized overrun shall not, under any
circumstances, be considered as giving Customer the right to take unauthorized
overruns. Further, such payment shall not be considered a substitute for any other
remedies available to Company or any of Company’s other customers for failure to
respect its obligation to adhere to the provisions of this Contract. |
| (3) | Company shall have the right, without obligation, to waive the penalty for any
unauthorized overrun, provided Company’s other customers or its pipeline operations
were not adversely affected. |
||
| (4) | Company shall waive any penalty for an unauthorized overrun when such
overrun occurred due to circumstances beyond the control of Customer due to
emergency conditions on Company’s facilities; or when such overrun is due to
accident or breakage of pipelines, machinery, or equipment of the Customer if such
overrun does not result in penalties being imposed on Company by the interstate
pipeline. However, Customer shall promptly take such action as may be necessary to
repair or remedy any such situation and shall furnish Company satisfactory evidence
that such accident or breakage was not due to Customer’s negligent action or
inaction. |
ARTICLE XI — CASHOUT OF MONTHLY IMBALANCE
Customer is purchasing its natural gas supply from a third party, and said supply shall be subject
to net aggregate monthly imbalance cashout provisions. At the end of each billing month, Company
will determine the imbalance by comparing net receipts for Customer at its designated receipt
point(s) to actual redeliveries to Customer as measured through Company’s meter at Customer’s
location. The net aggregate imbalance percentage will be determined by dividing the actual net
imbalance by the net quantity delivered to Customer during the billing cycle month.
Monthly Under-Delivery (Positive Imbalance) Charge: If Customer has a net aggregate monthly
imbalance such that the total quantity of gas received by Company during the billing month is less
than the total quantity of gas redelivered to Customer by Company, Customer shall be billed (on its
monthly billing) for net aggregate monthly imbalance charges according to the following table:
| Net Aggregate | Percentage of | |||
| Monthly | Company City | |||
| Imbalance | Gate Station | |||
> 0% not > 2-1/2 % |
100 | % | ||
> 2-1/2 % not > 5% |
110 | % | ||
> 5% not >7-112% |
120 | % | ||
>7-1/2% not >10% |
130 | % | ||
>10% not >12-1/2% |
140 | % | ||
>12-1/2% |
150 | % | ||
Monthly Over-Delivery (Negative Imbalance) Charge: If Customer has a net aggregate monthly
imbalance such that the total quantity of gas received by Company during the billing month is
greater than the total quantity of gas redelivered to Customer by Company, Customer shall be
credited (on its monthly billing) for net aggregate monthly imbalance charges according to the
following table. If the credit is greater than the total monthly billing, excess credit shall be
applied to subsequent billing cycles, Company will not refund any monies to the Customer due to
negative imbalance unless the credit exceeds the expected combined ▇▇▇▇▇▇▇▇ for the next two
billing cycles.
| Net Aggregate | Percentage of OVGC City | ||||
| Monthly Imbalance Percentage | Gate Station Average Price** | ||||
> 0% not > 2-1/2 % |
100 | % | |||
> 2-1/2 % not > 5% |
90 | % | |||
>5% not > 7-1/2% |
80 | % | |||
>7-1/2% not >10% |
70 | % | |||
>10% not >12-1/2% |
60 | % | |||
>12-1/2% |
50 | % | |||
| ** | City Gate Station Average Price: Company’s average gas cost (demand and commodity) per therm,
based on gas purchases for the applicable month. |
ARTICLE
XII — REIMBURSEMENT OF PIPELINE PENALTIES
Customer shall reimburse Company for all interstate pipeline penalties and charges incurred as a
result of Customer’s actions or inactions under this Contract.
ARTICLE XIII — SPECIAL CONSIDERATIONS
Customer shall provide access to a telephone line (a dedicated line provided at Customer’s expense)
at the metering location thereby allowing for remote contact with the metering equipment for
purposes of obtaining meter readings, flow information, etc. by either Company or Customer.
Customer shall also provide 110-120 volt electric service (fused at 15 amps) to the metering
location to facilitate the electronic metering equipment.
ARTICLE XIV LATE PAYMENT CHARGE
Company will assess a Late Payment Charge of three (3) percent on all amounts not paid on or before
the due date of any ▇▇▇▇. Any payments received by Company after the due date shall be subject to
the Late Payment Charge.
ARTICLE XV— COLLECTION CHARGE
A Collection Charge of $50.00 shall be assessed should it become necessary to send an employee or
other agent to the Customer’s premises to collect a past due account.
ARTICLE XVI — RETURNED CHECK CHARGE
A Returned Check Charge of $30.00, plus any bank charges incurred by Company, shall be assessed for
any payment, including a direct debit transaction, returned unpaid by a financial institution.
ARTICLE XVII — RECONNECTION CHARGE
To recover the cost of discontinuance and reestablishment of service for the same Customer at the
same service address, a Reconnection Charge will be assessed which is the greater of either
$1,000.00 or the product of the monthly service charge multiplied by the number of billing cycle
months during which service was discontinued, up to a maximum of twelve (12) billing cycle months.
This charge must be paid before service is restored. If the disconnected period exceeds one (1)
year, Company may waive the reconnection fee, provided that disconnection was not for violation of
Company’s or Commission’s rules and regulations.
ARTICLE XVIII — ACCESS TO MEASURING EQUIPMENT AND RECORDS
Customer shall have the right to be present at any installation, reading, cleaning, repairing,
changing, inspecting, calibrating or adjusting of measuring equipment used for deliveries to
Customer. Customer shall have the right of free access to said equipment for the purpose of
determining the rate at which gas is being delivered. The records from such measuring equipment
shall remain the property of the Company. Upon request, Company will submit to Customer copies of
such records, together with calculations therefrom, for inspection and verification, subject to
return within ten (10) days after receipt. Company shall maintain and preserve, for a period of at
least three (3) years, all test data and other similar records applicable to said measuring
equipment.
ARTICLE XIX — TESTING OF COMPANY’S MEASURING EQUIPMENT
Testing of Company’s measuring equipment for accuracy shall, at a minimum, conform in manner,
occasion, frequency, and method to the Commission’s Rules, Regulations and Standards of Service
for Gas Public Utilities in Indiana.
ARTICLE XX • TERM OF CONTRACT
This Contract shall remain in full force and effect for an initial term of ten (10) years from the
Contract Effective Date recorded herein, said period being known as the Term of Contract. The
Contract Effective Date as set forth below is defined as the earlier of the date on which Customer
begins commercial operations which is currently expected to he August 1, 2008, or the actual date
on which service under this Contract commences. Customer, or its lawfully authorized
representative, shall provide verified notice of commencement of operations in accordance with the
general notice language (Article XXI) contained in this Agreement.
Either party may terminate this Contract by giving written notice to the other party not less than
one hundred twenty (120) days prior to the expiration of the initial term or any of the succeeding
one (1) year terms. This written notice is to be sent by certified mail, express mail or fax,
provided however that notice shall not be effective until received by the noticed party. Provided
neither party terminates this Contract as provided herein, the Contract shall automatically renew
for a series of not more than three (3) consecutive one (1) year periods, with indexed and agreed
upon increases in the throughput rate and monthly service charge.
Contract Effective Date: The earlier of August 1, 2008, or the date on which service under this
Contract commences.
ARTICLE
XXI — NOTICES
Notices to Company shall be addressed to
|
Ohio Valley Gas Corporation | |
| Attn: General Manager | ||
| ▇.▇. ▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. | ||
Notices to Customer shall be addressed to:
|
Cardinal Ethanol, LLC | |
| Attn: General Manager | ||
| ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||
| ▇▇ ▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
Either party may change its address under this Article by written notice to the other party,
Notices shall be deemed given upon receipt by the noticed party.
ARTICLE XXII — CANCELLATION OF PRIOR CONTRACT(S)
This Contract shall supersede any and all previous contracts, written correspondence or
understandings, if any, between the parties hereto as same may relate to the transportation
redelivery of natural gas by Company to Customer,
IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed, in duplicate, by
its duly authorized company officers.
| Executed
3/20/07 |
OHIO VALLEY GAS CORPORATION (COMPANY) | |||||
(DATE) |
||||||
/s/ (illegible)
|
By: | ▇.▇. ▇▇▇▇
|
||||
| Executed 3/20/07 |
CARDINAL ETHANOL, LLC (CUSTOMER) | |||||
(DATE) |
||||||
/s/ (illegible)
|
By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
||||