AMENDMENT ▇▇. ▇
▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ AND PARTICIPATION AGREEMENT
Between
Public Service Company of New Mexico
and
The City of Anaheim, California
1.0 PARTIES
This Amendment ▇▇. ▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ and Participation
Agreement ("Amendment No. 1") is made and entered into this 27th day of October
1999, by and between PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico
corporation ("PNM") and THE CITY OF ANAHEIM, CALIFORNIA, a municipal corporation
organized under the laws of the State of California ("Anaheim"), hereinafter
sometimes referred to individually as a "Party" or collectively as the
"Parties."
2.0 RECITALS
This Amendment No. 1 is made with reference to the following facts,
among others:
2.1 The San ▇▇▇▇ Unit 4 Purchase and Participation Agreement (the
"PPA") was entered into by the Parties as of April 26, 1991. The PPA provides
for the sale by PNM and the purchase by Anaheim of a 10.04 percent undivided
ownership interest in San ▇▇▇▇ Unit 4 and associated common facilities, supplies
and inventories and the operation thereof by PNM as Operating Agent of the San
▇▇▇▇ Project.
2.2 PNM and Tucson Electric Power Company ("TEP") only are parties to
the San ▇▇▇▇ Project Co-Tenancy Agreement (the "Co-Tenancy Agreement") and the
San ▇▇▇▇ Project Operating Agreement (the "Operating Agreement").
1
2.3 The Co-Tenancy Agreement and the Operating Agreement have been
previously amended by action of PNM and TEP, through and including Amendments
Number 1 through Number 10 to the Co-Tenancy Agreement and the Operating
Agreement.
2.4 The San ▇▇▇▇ Project Construction Agreement was terminated in 1995
by action of PNM and TEP.
2.5 PNM, TEP, Century Power Company, Southern California Public Power
Authority ("SCPPA"), the City of Farmington, New Mexico ("Farmington"), M-S-R
Public Power Agency ("M-S-R"), the Incorporated County of Los Alamos, New Mexico
("Los Alamos") and Anaheim entered into the San ▇▇▇▇ Project Designated
Representative Agreement ("DR Agreement") as of April 29, 1994, for the purpose
of complying with the federal Clean Air Act Amendments of 1990; the DR Agreement
was thereafter accepted by Utah Associated Municipal Power Systems ("UAMPS") and
Tri-State Generation and Transmission Association, Inc. ("Tri-State") at the
time of their respective purchases of ownership interests in the San ▇▇▇▇
Project.
2.6 The owners of the San ▇▇▇▇ Project, including PNM and Anaheim, have
negotiated a San ▇▇▇▇ Project Participation Agreement among PNM, TEP,
Farmington, M-S-R, Los Alamos, SCPPA, Anaheim, UAMPS and Tri-State (the
"Participation Agreement") to amend, restate and replace in their entirety the
Co-Tenancy Agreement and the Operating Agreement and to set out in one
instrument all of the matters previously included in the Co-Tenancy Agreement
and the Operating Agreement.
2.7 The Participation Agreement will, upon its effective date, provide
Anaheim with all the rights, privileges and obligations of a "Participant," as
that term is defined in the Participation Agreement, and is intended to
supersede the rights, privileges and obligations of Anaheim as a "Unit
Participant," as that term is defined in the Operating Agreement.
2
2.8 The Parties desire to amend the PPA to make the PPA consistent with
the Participation Agreement.
NOW, THEREFORE, based on the foregoing recitals and in consideration of
the mutual promises, terms and covenants of this Amendment No. 1, the Parties
hereby agree as follows:
3.0 TERM AND TERMINATION
3.1 This Amendment No. 1 shall become effective as of the date on which
the Participation Agreement becomes effective.
3.2 Section 1 of the PPA is amended to read in its entirety as follows:
1.1 This Agreement shall become effective on the date (the
"Effective Date") it is executed by both PNM and Anaheim and shall,
unless terminated earlier by the Parties, remain in effect until
July 1, 2022; provided, however, that if the term of the San ▇▇▇▇
Project Participation Agreement, dated as of ________________, 1999
(the "Participation Agreement") is extended, the term of this
Agreement shall be extended, without further action of the Parties,
so that the terms of this Agreement and of the Participation
Agreement shall be coterminous.
4.0 CHANGES IN REFERENCES TO CO-TENANCY AGREEMENT
AND OPERATING AGREEMENT
4.1 Section 7 of the PPA is hereby amended to read in its entirety as
follows:
7.1 Participation Agreement. Except as otherwise provided in this
Agreement, the rights and obligations of the Parties with respect to
the San ▇▇▇▇ Project are as set forth in the Participation
Agreement. Any reference in this Agreement to any provision of the
San ▇▇▇▇ Project Agreements shall be deemed to be a reference to the
corresponding or successor provision of the Participation Agreement.
7.2 PNM/Anaheim Relationship. The relationship between PNM and
Anaheim with respect to Unit 4 shall be governed by this Agreement
and the Interconnection Agreement. As between PNM and Anaheim, where
a specific provision of this Agreement is in conflict with a
provision in one or more of the San ▇▇▇▇ Project Agreements, the
provisions of this Agreement shall govern.
3
4.2 Except as otherwise provided herein, the Participation Agreement
shall be applicable to all aspects of Anaheim's ownership interest in San ▇▇▇▇
Unit 4.
5.0 FINANCING
5.1 Section 10.3 of the PPA is hereby deleted in its entirety.
6.0 PNM AS OPERATING AGENT
6.1 Section 11 of the PPA is hereby amended to read in its entirety as
follows:
11.1 Anaheim recognizes that PNM is the Operating Agent, as that
term is defined in Section 5.31 of the Participation Agreement, as
of the effective date of the Participation Agreement.
11.2 PNM's responsibilities as Operating Agent to Anaheim are
described in Section 28 of the Participation Agreement.
7.0 APPLICABILITY OF CERTAIN PROVISIONS OF CO-TENANCY AGREEMENT
7.1 Section 12 of the PPA is hereby deleted in its entirety.
8.0 ENTITLEMENT TO AND SCHEDULING OF POWER AND ENERGY 8.1 Section 13.1 of
the PPA is hereby deleted in its entirety.
9.0 START-UP AND AUXILIARY POWER
9.1 Section 14 of the PPA is hereby amended to read in its entirety as
follows:
14.1 The provisions of this Section 14 shall apply after the
Closing Date. Each Party shall be obligated to provide its share of
start-up and auxiliary power and energy in proportion to its
Participation Share in San ▇▇▇▇ Unit 4 as provided in Section 17 of
the Participation Agreement. Any supplementary arrangements which
may be required to facilitate Anaheim's supply of start-up and
auxiliary power and energy shall be made in accordance with
procedures established by the Operating Representatives, as that
term is defined in Section 7 of the Interconnection Agreement.
4
10.0 CAPITAL BETTERMENTS, ADDITIONS AND REPLACEMENTS
10.1 Section 15 of the PPA is hereby deleted in its entirety.
11.0 DEFAULTS
11.1 Section 19.5 and Section 19.6 of the PPA are hereby deleted in
their entirety.
12.0 DISPUTES; ARBITRATION
12.1 Section 20 of the PPA is hereby amended to read in its entirety as
follows:
20.1 In the event that a dispute between the Parties should arise
under this Agreement, such dispute shall be first submitted to the
PNM and Anaheim members on the Engineering and Operating Committee
for resolution. In the event these members are unable to resolve
such dispute within thirty (30) days after submission, the dispute
shall be referred in writing to the President or a Vice President
designated by PNM and the Public Utilities General Manager of
Anaheim, or his or her designee. If such dispute has not been
resolved within thirty (30) days after the referral made by either
Party (unless such thirty (30) day period is extended by mutual
agreement of the Parties), either Party may thereafter call for
submission of such dispute to arbitration in the manner set forth in
Section 37 of the Participation Agreement, which call shall be
binding upon the Parties, except that the notices required under
Section 37.1 of the Participation Agreement shall only be provided
to the Parties to this Agreement unless the dispute between the
Parties to this Agreement affects the interests of other parties to
the Participation Agreement.
13.0 DESTRUCTION, DAMAGE OR CONDEMNATION OF SAN ▇▇▇▇ UNIT 4
13.1 Section 22 of the PPA is hereby deleted in its entirety.
14.0 NOTICES
14.1 Section 31.1.2 of the PPA is hereby revised to read in its
entirety as follows:
City of Anaheim, California
c/o City Clerk
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
5
Public Utilities General Manager
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15.0 ASSIGNMENT, TRANSFER, CONVEYANCE OR OTHER DISPOSITION
15.1 Section 29.2 of the PPA is hereby amended to read in its entirety
as follows:
29.2 Except as provided in Section 10 of the Participation
Agreement, and subject to any rights of first refusal of M-S-R or
others existing on the Effective Date with respect to any ownership
interest of PNM in ▇▇▇▇ ▇, should either Party desire after the
Closing to Assign any portion of or all of its respective ownership
interest in Unit 4 (the "Transfer Interest") to any person, company,
corporation or government agency (the "Outside Party"), the
remaining Party shall have the right of first refusal to purchase
the Transfer Interest in accordance with the terms and conditions
and the procedures set out in Section 11 of the Participation
Agreement.
16.0 CONTINUATION IN EFFECT
16.1 Except as herein modified, all provisions of the PPA are unchanged
and continue in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be
executed by their duly authorized representatives as of the date set forth
above.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Power Production
THE CITY OF ANAHEIM, CALIFORNIA
By:
--------------------------------------
Public Utilities General Manager
73145
6