EXHIBIT 10.7
Pages where confidential treatment has been requested are marked "Confidential
Treatment Requested." The redacted material has been separately filed with the
Commission, and the appropriate place and in the margin with a star (*).
RAW PRODUCT GATHERING AGREEMENT
THIS RAW PRODUCT GATHERING AGREEMENT ("AGREEMENT") is made and entered
into as of the 1st day of January, 2002, by and between DYNEGY LIQUIDS MARKETING
AND TRADE, a general partnership, hereinafter referred to as "DLMT", and DYNEGY
MIDSTREAM SERVICES, LIMITED PARTNERSHIP, a Delaware limited partnership,
hereinafter referred to as "Dynegy", sometimes also referred to individually as
a "Party" and collectively as the "Parties." All capitalized terms used in this
Agreement, including in the recitals immediately below, shall have the meanings
ascribed to them in this Agreement unless reference is expressly made otherwise.
WITNESSETH:
WHEREAS, DLMT owns and/or controls or in the future may own and/or
control certain volumes of Raw Product, as hereinafter defined, produced from
various gas processing plants; and,
WHEREAS, DLMT desires to have said Raw Product received and gathered by
Dynegy through its Raw Product gathering system to points on Dynegy's system
where same can be either fractionated, stored or delivered into pipelines for
transport; and,
WHEREAS, Dynegy desires to so receive and gather said Raw Product either
on Dynegy's East Leg Gathering System or West Leg Gathering System, hereinafter
defined as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
to be kept and performed by the parties, the parties agree as follows.
1. DEFINITIONS
For the purposes of this Agreement, the following terms and expressions
shall have the meanings set forth below, unless the context indicates otherwise:
"AFFILIATE" means, of any Person, a Person Controlling, Controlled by or
under common Control with, directly or indirectly, through one or more
intermediaries, such Person. Any Person shall be deemed to be an
Affiliate of any specified Person if such Person owns 50% or more of the
voting securities of the specified Person, if the specified Person owns
fifty percent (50%) or more of the voting securities of such Person, or
if fifty percent (50%) or more of the voting securities of the specified
Person and such Person are under common Control.
"BARREL" shall mean 42 (U.S.) Gallons.
"BASE RATE" shall mean a per annum rate of interest equal to the lower
of (i) the maximum rate of interest allowed by law or (ii) two percent
above the "prime rate" of interest as announced from time to time by
Bank One, Chicago, Illinois (or any then current successor thereto).
"BUSINESS DAY" shall mean a Day on which Federal Reserve member banks in
Houston, Texas, are open for business.
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"COMPONENT" shall mean the individual hydrocarbon constituents of Raw
Product, including but not limited to: methane, ethane, propane,
isobutane, normal butane, isopentane, normal pentane, hexanes and
heavier, as well as other non-hydrocarbon components authorized
hereunder.
"CURRENT SUPPLY CONTRACTS" shall mean the contracts under which DLMT, as
of the date hereof, is acquiring title and/or control over Raw Product
produced at the Plants, which contracts are described in more detail in
Exhibit C attached hereto.
"DAY" OR "DAILY" shall mean a twenty-four (24) hour period commencing
12:00 a.m. Midnight Central Standard or Daylight Savings time, as
applicable, and extending until 12:00 a.m. Midnight Central Standard or
Daylight Savings time, as applicable, on the following Day.
"DELIVERY POINT(s)" shall mean the point of interconnection between the
tailgate of the respective Plant(s) and the inlet of the Gathering
System.
"EAST LEG GATHERING SYSTEM" shall mean the system of pipes, gathering
lines, pumps, valves, controls and all other related equipment and
systems owned and/or operated by Dynegy currently utilized to gather Raw
Product from the Acadia, CMS LNG, Grand ▇▇▇▇▇▇▇, Iowa and ▇▇▇▇▇ Plant(s)
and deliver the same to the Redelivery Point located at the Hackberry
Storage Facility situated in Cameron Parish, Louisiana, as such system
exists as of the Effective Date.
"EFFECTIVE DATE" shall have the meaning ascribed to it in Section 2.
"FRACTIONATION AGREEMENT" shall mean that certain Fractionation
Agreement between Dynegy and DLMT of even date herewith.
"GALLON" shall mean one U.S. liquid Gallon, which is the unit of volume
used for the purpose of measurement of liquid. One U.S. liquid Gallon
contains 231 cubic inches when the liquid is at a temperature of 60 DEG.
degrees Fahrenheit and at the vapor pressure of the liquid being
measured.
"GATHERING SYSTEM" shall mean collectively the East Leg Gathering System
and West Leg Gathering System.
"HACKBERRY STORAGE FACILITY" shall mean the underground natural gas
liquids storage facility situated in Cameron Parish, Louisiana which is
owned and operated by Dynegy.
"LAKE ▇▇▇▇▇▇▇ FRACTIONATION FACILITY" or "FRACTIONATOR" shall mean the
Fractionation Facility situated in Calcasieu Parish, Louisiana, which is
owned and operated by Dynegy for the purpose of fractionating liquid
hydrocarbons into specification products.
"LOSSES" shall mean any and all liabilities, losses, damages, demands,
claims, penalties, fines, actions, suits, legal, administrative or
arbitration or alternative dispute resolution proceedings, judgments,
orders, directives, injunctions, decrees or awards of any jurisdiction,
costs and expenses (including, but not limited to, reasonable attorneys'
fees and related costs).
"MONTH" OR "MONTHLY" shall mean the period commencing on the first Day
of a calendar Month and ending on the last Day of such calendar Month.
"NEW SUPPLY CONTRACT" shall have the meaning ascribed to it in Section
3.4.
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"NGL PIPELINE" shall mean that certain bi-directional natural gas
liquids pipeline owned by Dynegy NGL Pipeline Company and operated on
such owner's behalf by Dynegy for the transportation of NGLs or other
products which extends from Rose Bluff, Louisiana to Mont Belvieu,
Texas.
"PLANTS" shall mean the following described gas processing plants which
produce volumes of Raw Product which DLMT currently owns and/or controls
or in which it may obtain an interest during the term of this Agreement,
as same exists as of the Effective Date and any gas processing plants
which may in the future be connected to the Gathering System:
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PLANT NAME LOCATION GATHERING SYSTEM
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Acadia Acadia Parish, Louisiana East Leg
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Barracuda Cameron Parish, Louisiana West Leg
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Parish, Louisiana West Leg
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CMS LNG Calcasieu Parish, Louisiana East Leg
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Dupont SRW Orange County, Texas West Leg
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Grand ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Parish, Louisiana East Leg
------------------------------------------------------------------------
Iowa ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Parish, Louisiana East Leg
------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Parish, Louisiana East Leg
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Sabine Pass Cameron Parish, Louisiana West Leg
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Stingray Cameron Parish, Louisiana West Leg
------------------------------------------------------------------------
"PRODUCT STORAGE AGREEMENT" shall mean an agreement of that title,
executed simultaneously herewith between DLMT and Dynegy, covering
storage of Raw Product and other specification products at Dynegy's
Hackberry Storage Facility.
"RAW PRODUCT" shall mean that mixture of natural gas liquid hydrocarbons
recovered from the Plant(s) meeting either the specifications set forth
in the Current Supply Contracts, as to volumes delivered thereunder, or
the specifications set forth in Exhibit A attached hereto with regard to
volumes delivered under New Supply Contracts.
"REDELIVERY POINTS" shall mean those locations set forth in Exhibit D to
this Agreement and such other points agreed to by the Parties for Dynegy
to redeliver DLMT's Raw Product gathered hereunder.
"SPECIFICATIONS" shall mean the specifications for Raw Product set forth
in the Current Supply Contracts and any New Supply Contracts entered
into in compliance with Section 3.4.
"SUPPLY CONTRACTS" shall mean the Current Supply Contracts plus any
additional contracts under which DLMT is acquiring or in the future may
acquire title and/or control over Raw Product for delivery into the
Gathering System, provided same are in compliance with the requirements
of Section 3.4 below.
"WEST LEG GATHERING SYSTEM" shall mean the system of pipes, gathering
lines, pumps, valves, controls and all other related equipment and
systems owned and operated by Dynegy utilized to gather Raw Product from
the Barracuda, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Pass, Stingray and Dupont SRW Plant(s)
and deliver the same to either to the Hackberry Storage Facility, the
Lake ▇▇▇▇▇▇▇ Fractionator or the Redelivery Point(s) into the NGL
Pipeline at locations in the Lake Charles, Louisiana vicinity, as such
systems exists as of the Effective Date.
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2. TERM
This Agreement shall have a primary term commencing effective January 1,
2002, (the "Effective Date") and ending December 31, 2021 (the "Primary Term")
and shall continue in effect Year to Year thereafter; provided however, that
either Party shall have the right to terminate this Agreement effective at the
end of the Primary Term or any Yearly anniversary thereafter by giving the other
Party at least ninety (90) Days prior written notice.
3. PERFORMANCE
3.1. DELIVERY AND REDELIVERY OBLIGATIONS
DLMT hereby commits to the performance of this Agreement and agrees to
deliver to Dynegy at the Delivery Point(s), its owned and/or controlled
Raw Product produced at the Plant(s) and received by DLMT pursuant to
the Supply Contracts. Dynegy agrees to receive all such Raw Product
attributable to the Supply Contracts from DLMT at the Delivery Points,
gather the Raw Product in the Gathering System and redeliver the Raw
Product to DLMT at the Redelivery Point(s), as mutually agreed upon.
3.2. SUPPLY CONTRACTS
The Parties acknowledge that DLMT does not own or operate any of the
Plants but that DLMT's owned or controlled Raw Product to be delivered
under this Agreement is being acquired from third parties pursuant to
the Supply Contracts. Dynegy acknowledges receipt and knowledge of the
full contents of the Current Supply Contracts, including the
specifications for Raw Product to be delivered thereunder, minimum
volume receipt obligations, all measurement and testing provisions and
provisions regarding the means and manner for physical delivery
thereunder.
3.3. AGENCY DESIGNATION & DUTIES
DLMT hereby designates Dynegy, for the term of this Agreement, to serve
as its agent under the Supply Contracts for the limited purposes of
administering the physical receipt, measurement and testing of Raw
Products delivered thereunder (the "Product Receipt Services"). Dynegy
agrees to perform such Product Receipt Services on behalf of DLMT, for
the term of this Agreement, expeditiously and in a good and workmanlike
manner; it being understood, however, that Dynegy is not acting as a
guarantor of DLMT's performance under the Supply Contracts.
3.4. ADDITIONAL SUPPLY CONTRACTS
DLMT may, from time to time hereafter, enter into either: i) additional
purchase or exchange contracts with third parties under which it
acquires title or control over additional volumes of Raw Product which
DLMT wishes to be delivered into the Gathering System for gathering to
the Redelivery Points; or ii) amendments, renewals or replacement
contracts which materially modify the obligations under any Supply
Contracts (collectively referred to as "New Supply Contracts"). In such
an instance, Dynegy agrees to accept such additional volumes of Raw
Product and to provide all Product Receipt Services for same, provided
DLMT complies with the following requirements:
(a) The specifications of the Raw Product to be delivered under the
New Supply Contract are consistent with those set forth in
Exhibit A to this Agreement;
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"Confidential Treatment Requested"
(b) If the New Supply Contract requires the addition of a new
Delivery Point to the Gathering System, the Parties must first
agree on who shall bear the cost of installing the new Delivery
Point. Dynegy is not obligated to add any new Delivery Point,
expand the capacity of the Gathering System or to accept new
volumes of Raw Product at an existing Delivery Point if, in
Dynegy's sole opinion, addition of same would have a material
adverse effect on i) the operation of the Gathering System, ii)
the ability of Dynegy to perform its then existing obligations
under this Agreement (including, without limitation, the Product
Receipt Services with regard to then existing Supply Contracts)
or under any other agreements or iii) the ability of Dynegy to
comply with applicable laws then in effect.
(c) The New Supply Contract is in a form which either:
(1) has been approved by Dynegy with regard to all
provisions which could relate to or affect Product
Receipt Services, expressly excluding any financial
or compensatory provisions therein, which shall be in
the sole control and authority of DLMT and which may
be kept confidential from Dynegy; or
(2) includes provisions substantially identical to the
following portions of this Agreement, or complies
with the provisions of the following sections which
are expressly referenced as being applicable to New
Supply Contracts: Section 5.1, applicable provisions
of Section 5.3, and all of Section 8.
(d) Unless approved by Dynegy in advance, the New Supply Contract
shall not include: (i) any provisions guarantying a maximum
Gathering System inlet pressure; (ii) curtailment provisions
which give the delivering party any greater receipt priority
rights than normal prorata curtailment; or (iii) any obligations
which are in conflict with any receipt obligations under then
existing Supply Contracts such that ability to perform under such
existing Supply Contracts may be, in Dynegy's sole opinion,
materially endangered or restricted.
3.5. SUPPLY CONTRACT RELATED COSTS
Should modifications or expansion of the Gathering System be required to
enable DLMT to perform its obligations under any New Supply Contracts
but Dynegy is not comparably bound under the other terms of this
Agreement to make such modifications or expansions, the Parties shall
meet to determine who should bear the costs of such modifications or
expansions. If the Parties are unable to agree on the appropriate
sharing of costs, (i) no modifications or expansions shall be required
to be made and (ii) DLMT shall be released from any dedication under
this Agreement pertaining to the Plant covered by such New Supply
Contract.
4. GATHERING FEE
As consideration for the gathering Services provided by Dynegy under this
* Agreement, DLMT shall pay Dynegy an initial gathering fee of [REDACTED]
("Fee") for all Raw Product delivered by DLMT to Dynegy at the Delivery
Point(s). This Fee shall be adjusted each Year during the term of this
Agreement, beginning January 1, 2003, according to the following formula (such
Fee being expressed in cents per Gallon):
* Fee = [REDACTED]
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"Confidential Treatment Requested"
* Where: A = [REDACTED]
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GDP2 = United States Bureau of Economic Analysis GDP Implicit
Price Deflator for the previous calendar quarter.
GDP1 = The average of the GDP Implicit Price Deflator for the
fourth quarter of the previous calendar year (i.e. for
the first adjustment this would be for the last
quarter of 2002.
5. QUALITY, CUSTODY AND MEASUREMENT
5.1. Raw Product delivered hereunder shall be in compliance with the
Specifications. Should any of the Plants produce Raw Product not in
compliance with the Specifications under the applicable Supply Contract
("Offspec RP"), Dynegy shall advise DLMT of whether it is capable of
accepting such Offspec RP and what fees or additional costs would be
required to allow acceptance of such Offspec RP.
5.2. Custody of the Raw Product shall transfer to Dynegy at the Delivery
Point. DLMT shall arrange for the delivery of the Raw Product to Dynegy
at the Delivery Point(s) at a pressure sufficient to enable the Raw
Product to enter into the Gathering System.
5.3. Volumes of Raw Product delivered to Dynegy, and determination of the
Components contained therein, shall be measured and calculated at each
Delivery Point in accordance the measurement and testing procedures set
forth in the Supply Contract applicable thereto. With regard to New
Supply Contracts or to the extent any applicable standards or procedures
are absent from a particular Supply Contract, volumes of Raw Product
delivered to Dynegy, and determination of the Components contained
therein, shall be measured and calculated at each Delivery Point in
accordance the measurement procedures for the type of meter in use at
the Delivery Point as set forth in the Exhibit B attached hereto. DLMT
shall have the right to witness all such measurements, tests and
determinations. As between Dynegy and DLMT hereunder, all Raw Product
gains and/or losses across the Gathering System shall be for the account
of Dynegy.
6. BILLING AND PAYMENT
6.1. During the Month following the Month gathering services are provided by
Dynegy to DLMT hereunder, Dynegy shall furnish to DLMT an invoice
reflecting all applicable fees and charges due under this Agreement and
DLMT shall pay to Dynegy via electronic funds transfer, in accordance
with instructions provided by Dynegy, the amounts due no later than ten
(10) Business Days after DLMT's receipt of invoice.
6.2. For payments due under Section 6.1 above, and if the Day on which any
payment is due is not a Business Day, then the relevant payment shall be
due upon the immediately succeeding Business Day. Any amounts which
remain due and owing after the due date shall bear interest thereon at
the Base Rate. If a good faith dispute arises as to the amount payable
in any invoice, the amount not in dispute shall be paid. If it is
subsequently determined, whether by mutual agreement of the Parties or
otherwise, that the withholding Party is required to pay all or any
portion of the disputed amounts to the other Party, in addition to
paying over such amounts, the withholding Party shall pay interest
accrued on such amounts at the Base Rate from the original due date
until paid in full.
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7. TAXES
Solely as between DLMT and Dynegy, DLMT shall be responsible for the
payment of any royalties, overriding royalties and other similar payments due or
to become due on the Raw Product, which are subject to this Agreement. Any tax
applicable to the production or ownership of the Raw Product or sales or use
taxes with respect to the transfer of Raw Product or the services provided by
Dynegy hereunder, including but not limited to any sales and/or use tax
applicable to stored volumes of Raw Product, shall be borne and paid by DLMT
unless such tax is by law imposed upon Dynegy, in which event, such tax shall be
paid by Dynegy and reimbursed by DLMT upon receipt of invoice for same. In no
event shall DLMT be liable to Dynegy for other taxes due on the account of the
services rendered by Dynegy hereunder (including, without limitation, taxes
measured by the gross receipts or net income of Dynegy). DLMT shall indemnify
and hold Dynegy and its Affiliates, and their respective representatives,
harmless from and against any and all Losses arising with respect to the payment
of any taxes, royalties, overriding royalties and other payments which are the
responsibility of DLMT as set forth above.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1. MUTUAL INDEMNITIES
As between the Parties, DLMT shall be deemed to be in exclusive control
and possession of the Raw Product delivered hereunder until the same
shall have been delivered to Dynegy at the Delivery Point(s); and with
regard to same, DLMT shall be responsible for any injury or damage
caused thereby or for loss of such Raw Product. After receipt of Raw
Product by Dynegy at the Delivery Point(s), Dynegy shall be deemed to be
in exclusive control and possession of such Raw Product and shall be
responsible for any injury or damage caused thereby or for any loss of
same. Each Party will indemnify and hold the other Party and its
Affiliates, and their respective representatives, harmless from and
against any injuries, damages or losses for which such Party is
responsible as set forth in this Section 8.1; provided, however, that no
Party or its Affiliates, or their respective representatives, shall be
indemnified against their own negligence or intentional misconduct or
the negligence or intentional misconduct of their own representatives or
Affiliates. Solely for the purpose of this Section 8.1, Dynegy and DLMT
shall not be deemed Affiliates.
8.2. LIMITATION OF LIABILITY
Except as to third party claims covered by the indemnity provisions of
Section 8.1 above, neither Party shall be responsible or liable to the
other Party or its Affiliates, or their respective representatives, for
any special, incidental, consequential or punitive damages arising out
of this Agreement or any breach hereof, regardless of the causes of
same.
9. FORCE MAJEURE
9.1. In the event either Party hereto is rendered unable, wholly or in part,
by reason of Force Majeure to carry out its obligations under this
Agreement, upon such Party's giving notice and reasonably full
particulars of such Force Majeure in writing to the other Party after
the occurrence of the cause relied on, then the obligations of such
Party, other than the obligation to pay money due hereunder, insofar and
only insofar as they are affected by such Force Majeure, shall be
suspended during the continuance of any inability so caused, but for no
longer period; and such cause shall, so far as reasonably possible, be
remedied with all reasonable dispatch.
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9.2. The term "Force Majeure" shall mean any causes, whether of the kind
enumerated herein or otherwise, which are not within the control of the
Party claiming suspension and which by the exercise of due diligence
such Party is unable to prevent or overcome and may include acts of God,
strikes, lockouts or other industrial disputes or disturbances, acts of
the public enemy, wars, blockades, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, tornadoes, hurricanes,
storms, and warnings for any of the foregoing which may necessitate the
precautionary shut-down of ▇▇▇▇▇, plants, pipelines, gathering systems,
loading facilities, terminals, the Fractionator, or other related
facilities, floods, washouts, arrests and restraints of governments
(either federal, state, civil or military), civil disturbances,
explosions, sabotage, breakage or accidents to equipment, machinery,
plants (including the Plants), the Fractionator, or lines of pipe, the
making of repairs or alterations to any of the foregoing, inability to
secure labor or materials, partial or entire failure of ▇▇▇▇▇ or gas
supply, electric power shortages or outages, and necessity for
compliance with any court order, or any law, statute, ordinance, rule,
regulation or order promulgated by a governmental authority having or
asserting jurisdiction. Such term shall likewise include, in those
instances where either Party hereto is required to obtain servitudes,
rights-of-way, grants, permits or licenses to enable such Party to
fulfill its obligations hereunder, the inability of such Party to
acquire, or delays on the part of such Party in acquiring, at reasonable
cost and after the exercise of reasonable diligence, such servitudes,
rights-of-way grants, permits or licenses, and in those instances where
either Party hereto is required to furnish materials and supplies for
the purpose of constructing or maintaining facilities to enable such
Party to fulfill its obligations hereunder, the inability of such Party
to acquire, or delays on the part of such Party in acquiring, at
reasonable cost and after the exercise of reasonable diligence, such
materials and supplies. The term "Force Majeure" shall also include any
event of force majeure occurring with respect to the facilities or
services of either Party's suppliers, including such Party's affiliates,
or customers providing a service or providing any equipment, goods,
supplies or other items necessary to the performance of such Party's
obligations, and shall also include curtailment or interruption of
deliveries or services by such suppliers or customers as a result of an
event that would otherwise be defined as Force Majeure hereunder.
9.3. Notwithstanding Section 9.1 above, it is understood and agreed that the
settlement of strikes or lockouts shall be entirely within the
discretion of the Party having the difficulty, and that the above
requirement that any Force Majeure shall be remedied with all reasonable
dispatch shall not require the settlement of strikes or lockouts by
acceding to the demands of the opposing party when such course is
inadvisable in the discretion of the Party (or its Affiliate) having the
difficulty.
10. MISCELLANEOUS
10.1. EXISTING LAWS AND REGULATIONS. This Agreement and the operations
hereunder shall be subject to the applicable federal and state laws and
the applicable orders, laws, rules and regulations of any state or
federal authority having or asserting jurisdiction, but nothing
contained herein shall be construed as a waiver of any right to question
or contest any such order, law, rule or regulation. The parties shall be
entitled to regard all such laws, rules, regulations and orders as valid
and may act in accordance therewith until such time as the same may be
invalidated by final judgment in a court of competent jurisdiction.
10.2. GOVERNING LAW. This Agreement and the rights and duties of the Parties
arising out of this Agreement shall be governed by and construed,
enforced and performed in accordance with the laws of the State of
Texas, as the same may be amended from time to time, without giving
effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any jurisdiction other than the
State of
Texas.
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10.3. WAIVER. No waiver by either Party of any default under this Agreement or
any of the provisions of this Agreement shall be deemed to be a waiver
of any future default or any other provision hereof, whether of a like
or a different character. No waiver shall be effective unless made in
writing and signed by the Party to be charged with such wavier, nor
shall such waiver constitute a continuing waiver unless expressly
provided by the Party to be charged with such wavier.
10.4. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and
assigns. Notwithstanding the foregoing, neither Party may assign this
Agreement, nor any interest herein, without the prior written consent of
the other Party, which consent shall not be unreasonably withheld or
delayed; provided, however, that a Party may from time to time (i)
designate an Affiliate to perform this Agreement, either in whole or in
part, such performance being considered that of the Party hereto, or
(ii) assign this Agreement to an Affiliate without obtaining the other
Party's consent thereto. It is understood, however, that by such
designation or assignment, unless the non-assigning Party expressly
releases the assigning Party, such assigning Party shall not thereby
avoid obligations imposed by the terms and provisions hereof, past,
present or future. DLMT agrees that it will not assign or transfer any
interest in the volumes of Raw Product dedicated to this Agreement
during the term hereof unless such assignment is made subject to this
Agreement and any assignee ratifies and adopts this Agreement in
writing.
10.5. EXHIBITS. Unless specifically otherwise provided, if any term or
condition expressed or implied in any Exhibit to this Agreement
conflicts or is at variance with any term or condition of this
Agreement, this Agreement shall prevail. All Exhibits as referenced
herein are attached hereto and made a part hereof.
10.6. DTPA WAIVER. THE PARTIES CERTIFY THAT THEY ARE NOT "CONSUMERS" WITHIN
THE MEANING OF THE
TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION
ACT, SUBCHAPTER E OF CHAPTER 17, SECTIONS 17.42, ET SEQ., OF THE
TEXAS
BUSINESS AND COMMERCE CODE, AS AMENDED ("DTPA"). THE PARTIES COVENANT,
FOR THEMSELVES AND FOR AND ON BEHALF OF ANY SUCCESSOR OR ASSIGNEE, THAT,
IF THE DTPA IS APPLICABLE, (a) THE PARTIES ARE "BUSINESS CONSUMERS" AS
THAT TERM IS DEFINED IN THE DTPA, (b) OTHER THAN SECTION 17.555 OF THE
TEXAS BUSINESS AND COMMERCE CODE, EACH PARTY HEREBY WAIVES AND RELEASES
ALL OF ITS RIGHTS AND REMEDIES UNDER THE DTPA AS APPLICABLE TO THE OTHER
PARTY AND ITS SUCCESSORS AND ASSIGNS, AND (c) EACH PARTY SHALL DEFEND
AND INDEMNIFY THE OTHER FROM AND AGAINST ANY AND ALL LOSSES OF OR BY
THAT PARTY OR ANY OF ITS SUCCESSORS AND ASSIGNS OR ANY OF ITS OR THEIR
AFFILIATES BASED IN WHOLE OR IN PART ON THE DTPA, ARISING OUT OF OR IN
CONNECTION WITH THE TRANSACTION SET FORTH IN THIS AGREEMENT.
10.7. HEADINGS, SECTIONS AND EXHIBITS. All references to "Sections" and
"Exhibits" herein pertain to the Sections of this Agreement and the
Exhibits attached hereto, unless expressly stated otherwise. Headings
are for purposes of reference only and shall not be used to construe the
meaning of this Agreement.
10.8. PRINCIPLES OF CONSTRUCTION AND INTERPRETATION. In construing this
Agreement, the following principles shall be followed:
(i) no consideration shall be given to the fact or presumption that
one Party had a greater or this Agreement;
(ii) examples shall not be construed to limit, expressly or by
implication, the matter they illustrate;
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(iii) the word "includes" and its syntactical variants mean "includes,
but is not limited to" and corresponding syntactical variant
expressions; and
(iv) the plural shall be deemed to include the singular and vice
versa, as applicable.
10.9. NOTICES. Any notice, request, instruction, correspondence, or other
documentation to be given hereunder by either Party to the other shall
be in writing and delivered personally or mailed by registered or
certified mail, postage prepaid and return receipt requested, or
facsimile as follows:
FOR DYNEGY:
To: Dynegy Midstream Services, Limited Partnership
Attention: Vice President, Liquids Assets - Eastern Region
At: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FOR DLMT:
To: Dynegy Liquids Marketing and Trade
Attention: Sr. Vice President
At: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A notice sent by facsimile shall be deemed to have been receive by the
close of the first Business Day following the Day on which it was
transmitted and confirmed by transmission report or such earlier time as
confirmed orally or in writing by the receiving Party. Notice by U.S.
Mail, whether by U. S. Express Mail, registered mail or certified mail,
or by overnight courier shall be deemed to have been received by the
close of the second Business Day after the Day upon which its was sent,
or such earlier time as is confirmed orally or in writing by the
receiving Party. Any Party may change its address or facsimile number by
giving notice of such change in accordance with herewith.
10.10. NO THIRD PARTY BENEFICIARY. This Agreement is for the sole benefit of
the Parties and their respective successors and permitted assigns, and
shall not inure to the benefit of any other person whomsoever, it being
the intention of the Parties that no third person shall be deemed a
third party beneficiary of this Agreement or otherwise have any rights
hereunder.
10.11. SEVERABILITY. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under the present or future laws effective
during the term of this Agreement, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part
of this Agreement, and (iii) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance from
this Agreement. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of
this Agreement a provision similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and as may be legal, valid,
and enforceable. If a provision of this Agreement is or
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becomes illegal, invalid, or unenforceable in any jurisdiction, the
foregoing event shall not affect the validity or enforceability in that
jurisdiction of any other provision of this Agreement nor the validity
or enforceability in other jurisdictions of that or any other provision
of this Agreement.
10.12. ENTIRE AGREEMENT AND AMENDMENT. This Agreement, including, without
limitation, all exhibits hereto, integrates the entire understanding
between the Parties with respect to the subject matter covered and
supersedes all prior understandings, drafts, discussions, or statements,
whether oral or in writing, expressed or implied, dealing with the same
subject matter. This Agreement may not be amended or modified in any
manner except by a written document signed by both parties that
expressly amends this Agreement.
10.13. SETOFFS AND COUNTERCLAIMS. Except as otherwise provided herein, each
Party reserves to itself all rights, set-offs, counterclaims, and other
remedies and/or defenses which that Party is or may be entitled to
arising from or out of this Agreement or as otherwise provided by law.
10.14. NO PARTNERSHIP OR ASSOCIATION. Nothing contained in this Agreement shall
be construed to create an association, trust, partnership or joint
venture or impose a trust or partnership duty, obligation or liability
on or with regard to either Party.
10.15. NO COMMISSIONS, FEES OR REBATES. Except as expressly authorized by this
Agreement, no director, employee or agent of either Party shall give or
receive any commission, fee, rebate gift or entertainment of significant
cost or value in connection with this Agreement. Any representative or
representative(s) authorized by either Party may audit the applicable
records of the other Party for the purpose of determining whether there
has been compliance with this Section.
10.16. OTHER AGREEMENTS. Simultaneously with the execution of this Agreement,
DLMT and Dynegy or its (or their) Affiliate(s) shall execute the Product
Storage Agreement and the Fractionation Agreement of even date herewith.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Day and
DYNEGY:
DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP
By: Dynegy Midstream G.P., Inc., its general partner
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
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DLMT:
DYNEGY LIQUIDS MARKETING AND TRADE
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
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-13-
EXHIBIT A
TO THE
RAW PRODUCT GATHERING AGREEMENT
RAW PRODUCT SPECIFICATIONS
(a) The Raw Product delivered to Dynegy at the Delivery Point shall contain
no solid materials or free water at 60 DEG. F.
(b) Total sulfur content shall not exceed 30 ppm by weight to be determined
by ASTM-D-2784.
(c) The hydrogen sulfide content shall not exceed 1.5 ppm by weight, and the
corrosiveness of the Raw Product shall not exceed "1" (▇▇▇▇▇▇ strip) as
given in ASTM-D-1838.
(d) The Raw Product shall not contain in excess of 1.0 liquid volume percent
carbon dioxide in the untreated ethane (ethane Component including all
carbon dioxide) at any time nor exceed 35 hundredths (0.35) liquid
volume percent carbon dioxide in the untreated ethane (ethane Component
including all carbon dioxide) when averaged over any given Month.
(e) The Raw Product shall not contain in excess of 1.5 liquid volume percent
methane and inerts of the ethane Component.
(f) The Raw Product color shall have a minimum Saybolt Number of +25 as
determined by ASTM-D-156.
(g) The maximum product end point at 14.7 psia shall not exceed 375 DEG. F
as determined by distillation pursuant to ASTM-D-216. The distillation
and color test are to be run on that portion of the mixture having a
boiling point of 70 DEG. F and above and at atmospheric pressure.
(h) DLMT shall not deliver Raw Product at temperatures in excess of
100 DEG. F or less than 60 DEG. F.
(i) The Raw Product shall not contain more than 1 ppm fluorides.
(j) The Raw Product shall not contain more than 1 ppm carbonyl sulfide
(COS).
Exhibit A Page 1
EXHIBIT B
TO THE
RAW PRODUCT GATHERING AGREEMENT
PART I: MEASUREMENT PROTOCOL - CORIOLIS METERS
A. GENERAL
1. UNIT OF MEASUREMENT: The unit of measurement of the Raw Product stream
shall be one (1) Pound mass.
2. DESIGN PRESSURE: The Delivery Point custody measurement station shall be
capable of measuring the volume of Raw Product delivered hereunder at pressures
up to 1440 pig or at a pressure as later amended.
3. FLOW METERING: The custody measurement station shall be designed,
operated, tested, and maintained and the mass of hydrocarbon streams calculated
in accordance with the latest edition of Gas Processors Association ("GPA")
Standard 8182 and the appropriate parts of the American Petroleum Institute
Manual of Petroleum Measurement Standards (hereinafter referred to as "MPMS").
The custody measurement station will, in Dynegy's sole discretion, be comprised
of: a coriolis meter, composite sampler and microprocessor; or a turbine meter,
densitometer, composite sampler and microprocessor; or an orifice meter,
densitometer, composite sampler and microprocessor.
4. DELIVERY POINT: As set forth in Section 1, DEFINITIONS, of the Agreement
5. FLOW METER CALIBRATION: All calibrations, adjustments and calculations
shall be adjusted to Standard Conditions. Standard Conditions shall mean 60 DEG.
degrees Fahrenheit and the equilibrium vapor pressure of the Raw Product being
measured. All flow measurement will be made utilizing temperature and pressure
at flowing line conditions.
6. ACCESS TO EQUIPMENT: DLMT, or its representative, shall have access at
all reasonable times to the equipment of Dynegy's custody measurement station,
or that of Dynegy's designees, but the reading, calibrating and adjusting
thereof shall be done by the employees, agents, representatives or designees of
Dynegy. Similarly, Dynegy shall have access at all reasonable times to the
equipment of DLMT's check measurement stations, but the reading, calibrating,
and adjusting thereof shall be done by the employees, agents or representatives
of DLMT.
7. METER TICKET: A meter ticket will be generated for the Delivery Point
above each Day. The billing period is from 07:00 hours on the first Day of each
Month to 07:00 hours on the first Day of the following Month.
8. REVIEW OF MEASUREMENT DATA: Dynegy's and DLMT's personnel shall exchange
measurement data on a timely basis in order to detect measurement discrepancies
as they arise. In the event that Dynegy and DLMT measurement differ more than
one (1) percent for two (2) or more Days in succession, both metering facilities
will be examined and calibrated to determine whether or not either or both
metering facilities are conforming to good measurement practice and/or
operation.
9. FLOW METER PROVING FREQUENCY: On a scheduled Day of each Month, or at
other mutually agreeable intervals, Dynegy or Dynegy's designee shall test and
verify the accuracy of its measurement equipment in accordance with the
appropriate referenced standards. Dynegy or its designee shall give DLMT notice
of the date and time of each test sufficiently in advance (48 hours minimum) to
permit DLMT to have a
Exhibit B Page 1
representative present to witness such test result. Calibration records of
either Dynegy's or DLMT's measurement equipment shall be available for review by
either Party.
10. CERTIFICATION OF TEST EQUIPMENT: Certification and calibration records
of Dynegy and DLMT's applicable test equipment shall be maintained and made
available for review by either Party.
11. SPECIAL TESTS: Either Party to this Agreement may also request a special
test of any measurement equipment at its cost and expense. In such event, the
Parties shall cooperate to secure prompt verification of accuracy of the
equipment.
B. MASS MEASUREMENT CALCULATIONS
1. RAW PRODUCT: The quantity shall be determined by mass measurement
procedures in accordance with MPMS and GPA standards and/or procedures agreed to
by both Parties.
2. CORIOLIS METER: Coriolis meters will be installed, operated, maintained
and calibrated according to the latest edition of the API Draft Standard
Measurement of Fluids by Coriolis Meters (when issued) and manufacturers
recommendations.
3. DENSITOMETER: Where installed, the flowing density of the stream shall
be determined by the continuous use of a densitometer of standard make installed
in accordance with MPMS Chapter 14.6 and the manufacturer's recommendations and
operated so that the instrument will properly measure the density of the fluid
at flowing pressure and temperature.
4. TIME BASIS: Mass measurement shall be calculated on a daily basis by
determining the necessary readings at the designated time on one Day and those
same readings at the designated time on the previous Day.
5. CONVERT MASS TO GALLONS: If required by either Dynegy or DLMT, the
determined mass shall be converted to Gallons at Standard Conditions in
accordance with GPA 8173, latest edition, using weight-in-vacuum factors from
GPA Standard 2145, latest edition.
C. DENSITOMETER PROVING
1. PROVING FREQUENCY: The accuracy of the densitometer shall be verified
Monthly by calibrating and proving the instrument in accordance with MPMS
Chapter 14.6 and the manufacturer's recommendations.
2. DENSITOMETER CORRECTION FACTOR: Two (2) provings shall be performed to
establish the densitometer correction factor. The average of the two- (2)
provings shall be taken as the densitometer correction factor if the two- (2)
provings have a repeatability tolerance not greater than 0.05 percent.
3. DEVIATION REQUIREMENTS: See "Meter and Densitometer Factor or Orifice
Calibration Deviation," Section D below.
D. METER AND DENSITOMETER FACTOR OR ORIFICE CALIBRATION DEVIATION
1. ORIFICE METER CALIBRATIONS: All the orifice meter instrumentation
(DP, PT, TT and chart recorders (if applicable) shall be calibrated and the
orifice plate inspected at the beginning of the delivery and a minimum of every
thirty (30) Days during the delivery. Necessary repairs to the metering
equipment and replacement
Exhibit B Page 2
of the orifice plate shall be made when the equipment does not meet the required
standards provided in the appropriate MPMS manual, latest edition.
2. ERRORS LESS THAN 0.25%: If the meter factor, densitometer factor or
orifice meter calibration deviates less than +/- 0.25% from one scheduled
proving to the next, the effective date of the new factor shall be the date of
the proving and shall remain in effect until the next proving.
3. ERRORS MORE THAN 0.25% AND LESS THAN 0.50%: If the meter factor,
densitometer factor or orifice meter calibration deviates more than +/- 0.25%,
but less than +/- 0.50%, then the effective date of the new factor shall be the
date on which an event occurred which is known to have changed the factor, or if
such date is not known, then the effective date is determined as defined in
"Volume Corrections", Section E below. If the factor deviation falls between
+/- 0.25% and +/- 0.50%, then it shall be the decision of the concerned field
Parties as to the scope and corrective action taken, if any.
4. ERRORS MORE THAN 0.50%: Any deviation greater than+/-0.50% is not
acceptable, and immediate steps shall be taken to effect the required
maintenance or repairs.
E. VOLUME CORRECTIONS
If, upon calibration tests, the meter does not meet requirements given, then any
previous recording of such equipment shall be corrected for any period which is
known or agreed upon, but in case the period is not known or agreed upon, such
correction shall apply to one-half (1/2) the total volume measured since the
date of the last calibration (proving). However, this correction shall not
exceed sixteen (16) Days.
F. SAMPLING AND ANALYSIS
1. DELIVERY POINT: A composite sample of the Raw Product shall be taken at
the Delivery Point Monthly or more frequently, if required, and used with the
mass calculation to determine a "Raw Product delivery in volume" (if
applicable). The subject volume calculation shall be based upon a temperature of
60 DEG. degrees F and the equilibrium vapor pressure of the Raw Product.
2. COMPOSITE SAMPLER: An automatic continuous sampler shall be installed
and used at the Delivery Point or at other mutually agreeable point in
accordance with the following requirements:
a. OPERATOR: Dynegy or its designee shall operate the sampling
equipment.
b. SAMPLE BASIS: The sampling equipment shall be designed to
accumulate a representative sample proportional to the flow of the Raw Product
passing through the measurement station.
c. MIXING DEVICE: The sampling equipment shall be equipped with
mixing facilities to eliminate any stratification.
d. SAMPLING METHOD: All sampling shall be in accordance with GPA
Standard 2174, latest edition.
3. RAW PRODUCT ANALYSIS: Raw Product analysis shall be in accordance with
"Analysis of Demethanized Hydrocarbon Liquid Mixtures Containing Nitrogen and
Carbon Dioxide by Gas Chromatography", GPA Standard 2177, latest edition.
Exhibit B Page 3
4. CHECK SAMPLE AND REFEREE: Check samples will be collected on the same
schedule as the custody samples. Analysis of these samples will be optional
based on the outcome of the custody sample analysis settlement.
5. UNAVAILABLE SAMPLE: In the event that a sample is not available for a
particular Month, the Parties shall determine an analysis based on the most
recent mutually accepted data.
G. CORRECTION OF ERRORS
Measuring equipment found to be registering inaccurately or out of service
should be adjusted to read accurately and/or placed in service immediately. For
any error not known or agreed upon for the period in which the meter was
inaccurate or out of service, the volume of the stream shall be estimated by use
of any of the following or other methods which shall be mutually agreed upon by
the Parties:
a. In the event that only one of the metering facilities is found to
have had a significant defect in performance, the other measuring facility will
be the agreed upon billing basis for that billing period.
b. If it is determined that both of the measuring installations
experienced significant defects in performance, billing for the period in
question shall be based upon such data as Dynegy and DLMT shall find mutually
acceptable.
H. TECHNICAL PUBLICATIONS
1. Revisions to such MPMS and GPA publications shall apply to computations
and operation of measurement stations but shall not be construed to require
major modifications to, or replacement of, said equipment.
2. Following is the current list of publications referenced in this
Exhibit.
a. API MANUAL OF PETROLEUM MEASUREMENT STANDARDS (MPMS), AMERICAN
PETROLEUM INSTITUTE, WASHINGTON, D.C.:
(1) Chapter 1, Vocabulary, Second Edition, July 1994
(2) Chapter 4, Proving Systems, Section 2, Conventional Pipe
Provers, First Edition, October 1988, Reaffirmed October
1993
(3) Chapter 4, Proving Systems, Section 3, Small Volume
Provers, First Edition, July 1988, Reaffirmed October 1993
(4) Chapter 5, Metering, Section 3, Measurement of Hydrocarbon
Liquids by Turbine Meters, Second Edition, November 1987,
Reaffirmed October 1992
(5) Chapter 5, Metering, Section 4, Accessory Equipment for
Liquid Meters, Second Edition, November 1987, Reaffirmed
October 1992
(6) Chapter 14, Natural Gas Fluids Measurement, Section 6,
Continuous Density Measurement, Second Edition, April 1991
Exhibit B Page 4
(7) Chapter 14, Natural Gas Fluids Measurement, Section 3,
Concentric Square-Edged Orifice Meters. Parts 1, 2, 3 and
4
(8) API Draft Standard, Measurement of Fluids by Coriolis
Meters, pending issue.
b. STANDARDS OF THE GAS PROCESSORS ASSOCIATION (GPA), TULSA,
OKLAHOMA:
(1) GPA Standard 8182-95, Standard for Mass Measurement of
Natural Gas Liquids
(2) GPA Standard 8173-94, Method for Converting Mass Natural
Gas Liquids and Vapors to English Liquid Volumes
(3) GPA Standard 2145-2000, Physical Constants for Paraffin
Hydrocarbons and Other Components of Natural Gas
(4) GPA Standard 2174-93, Obtaining Liquid Hydrocarbon Samples
for Analysis by Gas Chromatography
(5) GPA Standard 2186-95, Tentative Method for the Extended
Analysis of Hydrocarbon Liquid Mixtures Containing
Nitrogen and Carbon Dioxide by Temperature Programmed Gas
Chromatography
(6) GPA Standard 2177-95, Analysis of Demethanized Hydrocarbon
Liquid Mixtures Containing Nitrogen and Carbon Dioxide by
Gas Chromatography
(7) GPA Technical Publication TP-16, Composite Pressure and
Temperature Volume Correction Factor Table for Liquified
Petroleum Gas (LPG) and Natural Gasoline
(8) GPA Technical Publication TP-17, Table of Physical
Properties of Hydrocarbons for Extended Analysis of
Natural Gases
Exhibit B Page 5
PART II: MEASUREMENT PROTOCOL - TURBINE METERS
CUSTODY TRANSFER MEASUREMENT
TURBINE METERS
1. GENERAL
(A) Installation, operation, testing and maintenance of primary
measurement elements, recording devices, sampling equipment and
data transmission equipment and analysis of samples shall be in
accordance with the latest edition of the API Manual of Petroleum
Measurement Standards (API MPMS) and Gas Processors Association
(GPA) standards. Industry standards and publications referenced
in this Exhibit shall mean the latest revision. A detailed list
of standards and publications is provided at the end of this
Exhibit.
(B) MEASUREMENT BASIS. The quantity of Raw Product measured at the
Delivery Point shall be calculated by mass measurement
techniques.
(C) LIMITATION TO REVISIONS. Revisions to such API MPMS and GPA
standards and publications shall apply to computations and
operation of measurement stations but shall not be construed to
require major modifications to, or replacement of, said
equipment.
(D) FLOW METERING. The custody measurement station will be comprised
of a turbine meter, densitometer, composite sampler and
microprocessor.
2. RESPONSIBILITY
(A) CUSTODY TRANSFER POINT. The point of custody transfer for Raw
Product shall be the meter station at the Delivery Point.
(B) CUSTODY TRANSFER PARTY. Dynegy will measure and account for the
mass, volume and quality of the Raw Product received at the
Delivery Point.
(C) CHECK MEASUREMENT. Either Party may install check measurement
facilities at its own cost and expense as long as the check
measurement facilities do not interfere with the custody transfer
meter and equipment.
(D) DIVISION OF RESPONSIBILITY. DLMT, or its representative, shall
have access at all reasonable times to the equipment of Dynegy's
custody measurement station, or that of Dynegy's designees, but
the reading, calibrating and adjusting thereof shall be done by
the employees, agents, representatives or designees of Dynegy.
Similarly, Dynegy shall have access at all reasonable times to
the equipment of DLMT's check measurement stations, but the
reading, calibrating, and adjusting thereof shall be done by the
employees, agents or representatives of DLMT.
3. EQUIPMENT
(A) DESIGN PRESSURE. The Delivery Point custody measurement station
shall be capable of measuring Raw Product delivered hereunder at
pressures up to 1,440 psig.
Exhibit B Page 6
(B) MICROPROCESSOR. The measurement station shall include a
microprocessor meeting the requirements of API MPMS Chapter 21.2
and capable of continuously integrating gross metered volumes
from the volumetric meter with flowing density from the
densitometer and reporting in gross Pounds and gross Barrels (or
Gallons).
(C) SAMPLE AND COMPOSITION. The metering facility for Raw Product at
the Delivery Point shall include an automatic sampling device to
obtain a representative sample of the Raw Product in accordance
with GPA Standard 2174. The sampling device will extract a sample
in proportion to the metered quantity. The sample of the liquids
shall be secured throughout the entire metering period. The
volume of the sample will be at a minimum 600cc in order that
each Party may have enough volume to run its own analysis if DLMT
elects to run a separate analysis. If DLMT elects to run its own
analysis, same shall be at DLMT's sole cost and expense and DLMT
will be responsible for picking up Dynegy's sample cylinder at
Dynegy's Sulphur, Louisiana offices, and returning the cylinder
to Dynegy within 14 calendar days of pick-up.
(D) QUANTITY. The equipment used in the meter station shall conform
to the following standards and publications.
1. TURBINE METER(s) shall be installed and operated in
accordance with API MPMS Chapter 5 and manufacturer's
recommendations.
2. DENSITOMETER(s) shall be installed and operated in
accordance with API MPMS Chapter 14, Section 6 and
manufacturer's recommendations.
4. OPERATION
(A) FLOW METER BACKPRESSURE. The metering backpressure will be a
minimum of the sum of 1.25 times the stream bubble point pressure
at flowing temperature plus two times the differential pressure
across the meter at flowing conditions.
(B) DENSITOMETER. The densitometer will measure density in grams per
cubic centimeter at flowing conditions.
(C) SAMPLING. At the end of each metering period, one (1)
representative sample will be withdrawn from the automatic
sampling device utilizing a floating piston cylinder in
accordance with GPA Standard 2174. After emptying the automatic
sampling device of any remaining liquids, Dynegy will re-service
the sampler and return it to service. DLMT's representative may
witness the withdrawing of the liquid sample. After laboratory
analysis, the remaining sample in the sample cylinder will be
discarded at the expiration of the fourteen (14) Day objection
period specified in Paragraph 7(A) of this Exhibit, Objections
and Challenges.
5. PROVING & CALIBRATION
(A) PRESSURE AND TEMPERATURE DEVICES. Instrumentation including
static pressure, temperature and any chart recorders shall be
calibrated at the beginning of the delivery and at least Monthly
during the delivery period. Instrument calibration and repairs
shall be made when the test results exceed the tolerances
specified in the appropriate API MPMS standard.
Exhibit B Page 7
(B) QUANTITY DEVICES. The flow and density meter(s) will be proven no
less frequently than once each Month during the delivery period.
Dynegy will prove the meter(s) at the metering station and will
give DLMT forty-eight (48) hours notice of the intent and time to
prove so that representatives of DLMT can be present.
1. TURBINE. Five (5) consecutive calibration tests shall be
performed to establish the meter correction factor
applicable for turbine meters. Each calibration test shall
consist of the total pulses obtained from a proof run. The
determined meter correction factor thus obtained shall be
applied to the Daily registered meter reading. The average
of the five (5) calibration tests shall be taken as the
meter correction factor for the meter if the five (5)
calibration tests are within 0.05% of each other. The
meter correction factor shall be established at flowing
conditions in accordance with API MPMS, Chapter 4. The
meter proving data shall be delivered to DLMT on a meter
proving report. A turbine meter element shall not be
removed from service for maintenance without first proving
such meter. The meter correction factor so determined
shall be used in accordance with Paragraph 8(A), of this
Exhibit, FACTOR DEVIATION.
2. DENSITOMETER. The accuracy of the densitometer shall be
verified Monthly by calibrating and proving the instrument
in accordance with the API MPMS Chapter 14, Section 6 and
the manufacturer's recommendations. Two (2) provings shall
be performed to establish the densitometer correction
factor. The determined densitometer correction factor thus
obtained shall be applied to the Daily registered meter
reading. The average of the two provings shall be taken as
the densitometer correction factor if the two provings are
within 0.05% of each other. A densitometer shall not be
removed from service for maintenance without first proving
such densitometer. The densitometer correction factor so
determined shall be used in accordance with Paragraph
8(A), of this Exhibit, FACTOR DEVIATION.
(C) UNSCHEDULED CALIBRATIONS. Either Party may ask for an unscheduled
flow meter or densitometer calibration at any time. The Party
requesting the unscheduled proving shall bear the expense of the
special proving if the correction factor deviates less than 0.25%
from the previous factor. However, in order to have a meter
ticket adjustment, the Parties shall follow the procedures in
Paragraph 7 of this Exhibit, Objections and Challenges.
6. CALCULATION
(A) MASS MEASUREMENT.
1. QUANTITY. The quantity of Raw Product measured at the
Delivery Point shall be calculated by mass measurement
procedures in accordance with API MPMS and GPA standards.
The determined mass in Pounds shall be converted to
Barrels (or Gallons) at standard conditions by applying
the analysis of the composite sample to the flow period in
accordance with GPA Standard 8173 using weight-in-vacuum
factors from GPA Standard 2145.
2. ANALYSIS. Samples of Raw Product will be analyzed by a
laboratory mutually agreeable to the Parties using gas
chromatography methods in accordance with GPA Standard
2177. The composition of the representative sample of Raw
Product for each metering period shall be applied to the
quantity measured during the period
Exhibit B Page 8
covered by the sample. The molecular (mole) percentage
values of nitrogen, carbon dioxide and natural gas
hydrocarbons C(1) through C(6)+ or C(7)+ shall be
determined. Raw Product analysis shall be in accordance
with "Analysis of Demethanized Hydrocarbon Liquid Mixtures
Containing Nitrogen and Carbon Dioxide by Gas
Chromatography", GPA Standard 2177, latest edition.
a) GPA 2145 CONSTANTS. The conversion constants for
nitrogen, carbon dioxide, propylene and C(1) through
C(5) shall be in accordance with GPA Standard 2145.
b) HEXANE AND HEAVIER CHARACTERIZATION. Where hexane and
heavier components are present, the individual
components of C(6)+ or C(7)+ shall be analyzed and used
to determine the weighted average molecular weight and
density of the hydrocarbons from a representative
sample. GPA Standard 2186 shall be used for extended
analysis to quantify C(6)+ or C(7)+ composition.
Physical constants contained in GPA Technical
Publication TP-17 shall be used in the calculation of
the averages. The average determination shall be made
at least once during each calendar quarter during the
delivery period.
7. OBJECTIONS AND CHALLENGES
(A) ANALYSIS. Either DLMT or Dynegy, within fourteen (14) Days after
the end of the measurement period, may challenge the analysis by
submitting a written objection to the other Party. If Dynegy and
DLMT cannot agree on the analysis for a measurement period, the
remaining portion of the sample shall be sent to a mutually
agreeable outside laboratory for analysis and that analysis
utilized for the measurement period. Charges for such referee
analysis shall be borne by the Party requesting the referee
analysis, if the referee analysis indicates the original analysis
is within tolerances specified in the appropriate GPA standard.
If there is no sample available for analysis, Dynegy and DLMT
shall follow the procedures in Paragraph 8(C) of this Exhibit.
(B) VOLUME AND/OR MASS. Either DLMT or Dynegy, within one Month after
the end of the measurement period, may challenge the ticketed
volume and/or mass by submitting a written objection to the other
Party. Using the methods described in Paragraph 8(D) of this
Exhibit, the Parties may agree to a volume, an average
temperature, an average pressure, and/or an average density
during the time of the measurement disagreement, and the meter
ticket may be adjusted according to Paragraph 8(B) of this
Exhibit. If the Parties cannot agree, either Party may ask for an
unscheduled flow meter or densitometer calibration and the meter
ticket may be adjusted according to Paragraph 8(B).
8. ERROR CORRECTION
(A) FACTOR DEVIATION.
1. LESS THAN +/- 0.25%. If the meter or densitometer
correction factor deviates less than +/-0.25% from one
scheduled proving to the next, the effective date of the
correction factor shall be the date of the proving and
shall remain in effect until the next proving.
2. MORE THAN +/- 0.25%. If the meter or densitometer
correction factor deviates more than +/-0.25% corrective
action may need to be performed on the meter. It shall be
Exhibit B Page 9
the decision of the Dynegy and DLMT as to the scope of any
corrective action to be taken, if any. The effective date
of the new correction factor shall be the date on which an
event occurred which is known to have changed the
correction factor, or if such date is not known, then the
affected metering period is determined in accordance with
Paragraph (B) of this Exhibit.
3. MORE THAN +/- 0.50%. Should the new meter correction
factor deviate more than +/- 0.50%, Dynegy shall proceed
with diligence to effect maintenance, repair or
replacement of the meter. A new turbine element will not
be proved before a 24-hour break-in period. The proving
after the break-in period will provide the meter
correction factor which will be effective the date of the
new element installation. This factor will be used until
the next scheduled proving.
(B) MASS & VOLUME. If, upon calibration or proving, the meter does
not meet requirements given, then any previous recording of such
equipment shall be corrected for any period which is known or
agreed upon, but in case the period is not known or agreed upon,
such correction shall apply to one-half (1/2) the total volume
measured since the date of the last calibration (proving).
However, this correction shall not exceed one Month.
(C) ANALYSIS. If the sampler should fail or is out of service, or the
analysis is not representative of the liquid metered at the
custody transfer station, Dynegy and DLMT shall agree on a
composition determined from one of the following methods in the
order stated:
1. By using the sample from properly operating check
measuring equipment; or
2. By using the composition of the most recent accurate and
representative sample; or
3. By using the composition from on-line gas chromatograph
equipment used for the Acadia Plant control after first
determining the bias between it and the results from
mutually agreed upon laboratory; or
4. Alternatively, by agreement of Dynegy and DLMT.
(D) ERROR RESOLUTION. If the meter should fail or is out of service,
the quantity for the measurement period while the meter is out of
service will be determined by the following methods in the order
stated:
1. By using data recorded by any properly operating check
measuring equipment; or
2. By correcting the error if the percentage of error can be
ascertained by calibration test or calculation; or
3. By comparison with deliveries during earlier periods under
similar conditions when the meter was registering
accurately; or
4. Alternatively, by agreement of Dynegy and DLMT.
Exhibit B Page 10
9. TECHNICAL PUBLICATIONS
(A) API Manual of Petroleum Measurement Standards (MPMS), American
Petroleum Institute, Washington, D.C.:
1. Chapter 1, Vocabulary, Second Edition, July 1994
2. Chapter 4, Proving Systems, Section 2, Conventional Pipe
Provers, First Edition, October 1988, Reaffirmed October
1993
3. Chapter 4, Proving Systems, Section 3, Small Volume
Provers, First Edition, July 1988, Reaffirmed October 1993
4. Chapter 5, Metering, Section 3, Measurement of Hydrocarbon
Liquids by Turbine Meters, Second Edition, November 1987,
Reaffirmed October 1992
5. Chapter 5, Metering, Section 4, Accessory Equipment for
Liquid Meters, Second Edition, November 1987, Reaffirmed
October 1992
6. Chapter 14, Natural Gas Fluids Measurement, Section 3,
Concentric Square-Edged Orifice Meters. Parts 1, 2, 3 and
4
7. Chapter 14, Natural Gas Fluids Measurement, Section 6,
Continuous Density Measurement, Second Edition, April 1991
8. API Draft Standard, Measurement of Fluids by Coriolis
Meters, pending issue.
(B) Standards of the Gas Processors Association (GPA), Tulsa,
Oklahoma:
1. GPA Standard 2145-2000 Revision 2, Physical Constants for
Paraffin Hydrocarbons and Other Components of Natural Gas
2. GPA Standard 2174-93, Obtaining Liquid Hydrocarbon Samples
for Analysis by Gas Chromatography
3. GPA Standard 2177-95, Analysis of Demethanized Hydrocarbon
Liquid Mixtures Containing Nitrogen and Carbon Dioxide by
Gas Chromatography
4. GPA Standard 2186-95, Tentative Method for the Extended
Analysis of Hydrocarbon Liquid Mixtures Containing
Nitrogen and Carbon Dioxide by Temperature Programmed Gas
Chromatography
5. GPA Standard 8173-94, Method for Converting Mass Natural
Gas Liquids and Vapors to English Liquid Volumes
6. GPA Standard 8182-95, Standard for Mass Measurement of
Natural Gas Liquids
7. GPA Technical Publication TP-16, Composite Pressure and
Temperature Volume Correction Factor Table for Liquefied
Petroleum Gas (LPG) and Natural Gasoline
Exhibit B Page 11
8. GPA Technical Publication TP-17, Table of Physical
Properties of Hydrocarbons for Extended Analysis of
Natural Gases
9. GPA Technical Publication TP-25, Temperature Correction
for the Volume of Light Hydrocarbons, Tables 24E and 23E.
Exhibit B Page 12
EXHIBIT C
TO THE
RAW PRODUCT GATHERING AGREEMENT
CURRENT SUPPLY CONTRACTS
1. Exchange Agreement dated June 2, 2000, and effective May 1, 2000, between
Duke Energy NGL Services, Inc. and DLMT (as successor to Dynegy Midstream
Services, Limited Partnership). (IOWA Plant)
2. Hydrocarbon Exchange Agreement dated October 1, 1991, between BP NGL,
successor in interest to Vastar Resources Inc. and ARCO Oil and Gas Company,
and DLMT (as successor to Dynegy Midstream Services, Limited Partnership,
successor in interest to ▇▇▇▇▇▇ NGL Inc. and Trident NGL, Inc.), as amended.
(Grand ▇▇▇▇▇▇▇ Plant)
3. Exchange Agreement effective November 1, 1996 between ▇▇▇▇▇▇▇▇ Field
Services Company and DLMT (as successor to Dynegy Midstream Services,
Limited Partnership, successor in interest to ▇▇▇▇▇▇ NGL Inc.), as amended.
(Cameron Plant)
4. Exchange Agreement dated December 19, 2001 and effective January 1, 2002
between El Paso Field Operations Company and DLMT (Sabine Pass Plant)
5. Hydrocarbon Exchange Agreement effective February 1, 2001 between Conoco
Inc. and DLMT (as successor to Dynegy Midstream Services, Limited
Partnership). (Acadia Plant)
6. Hydrocarbon Exchange Agreement effective November 1, 2000 between CMS
Marketing, Services, and Trading Company and DLMT (as successor to Dynegy
Midstream Services, Limited Partnership). (CMS Field Services Lake ▇▇▇▇▇▇▇
▇▇▇▇▇)
Exhibit C Page 1
EXHIBIT D
TO THE
RAW PRODUCT GATHERING AGREEMENT
REDELIVERY POINTS
1. The inlet connections between the Gathering System and the Lake ▇▇▇▇▇▇▇
Fractionator.
2. The inlet connections for Raw Product delivery from the Gathering System
into the Hackberry Storage Facility.
3. Interconnect between the Gathering System and the NGL Pipeline near Rose
Bluff, Louisiana.
4. Interconnect between the West Leg Gathering System and Citgo's Lakemont
pipeline.
5. ▇▇▇▇▇/El Paso Interconnect (New interconnect to be located near ▇▇▇▇▇,
Louisiana, which is to be installed pursuant to agreement between DLMT
and El Paso Field Operations Company ("El Paso") for delivery of Raw
Product under a DLMT exchange agreement with El Paso effective
January 1, 2002).
Exhibit D Page 1