Exhibit B-2
Niagara Mohawk Power Corporation Original Sheet No. 1
FERC Electric Rate Schedule No. [___]
INTERCONNECTION AGREEMENT
BETWEEN
NIAGARA MOHAWK POWER CORPORATION,
NEW YORK STATE ELECTRIC & GAS CORPORATION
AND
CONSTELLATION NUCLEAR, LLC
FOR ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇
NUCLEAR GENERATING STATION
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 2
FERC Electric Rate Schedule No. [___]
TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II AGREEMENT TO INTERCONNECT DESCRIPTION OF FACILITIES . . 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARTIES . . . . . . . 10
ARTICLE IV ACCESS RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V OPERATION, MAINTENANCE, MODIFICATION AND DECOMMISSIONING . . 12
ARTICLE VI POWER DELIVERIES . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII INSURANCE PROVISIONS . . . . . . . . . . . . . . . . . . . 24
ARTICLE VIII COMPLIANCE WITH LAWS AND SAFETY . . . . . . . . . . . 25
ARTICLE IX COST PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE X NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XI TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . 35
ARTICLE XII FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE XIII INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE XIV RELATIONSHIP OF THE PARTIES . . . . . . . . . . . . . . 40
ARTICLE XV THIRD PARTY BENEFICIARY/ASSIGNMENT . . . . . . . . . . . . 41
ARTICLE XVI APPROVAL . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE XVII WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE XVIII AMENDMENT AND MODIFICATION. . . . . . . . . . . . . . . 44
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 3
FERC Electric Rate Schedule No. [___]
ARTICLE XIX GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XX DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XXI LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . 46
ARTICLE XXII SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE XXIII HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE XXIV INTEGRATION/MERGER/SURVIVABILITY . . . . . . . . . . . . . 48
ARTICLE XXV COMPLIANCE WITH GOOD UTILITY PRACTICE . . . . . . . . . 48
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SCHEDULE B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SCHEDULE C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SCHEDULE D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 4
FERC Electric Rate Schedule No. [___]
This INTERCONNECTION AGREEMENT (the "Agreement") is made as of December 8,
2000, between Niagara Mohawk Power Corporation ("Niagara Mohawk"), New York
State Electric & Gas Corporation ("NYSEG"), and Constellation Nuclear, LLC
("Constellation" or the "Producer"). Collectively, Niagara Mohawk and NYSEG may
be referred to as the "Companies." Collectively, Companies and the Producer may
be referred to as the "Parties", or individually, as a "Party."
WITNESSETH:
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WHEREAS, Niagara Mohawk, NYSEG, Rochester Gas and Electric Corporation and
Central ▇▇▇▇▇▇ Gas & Electric Corporation ("Sellers") and Constellation have
entered into an Asset Purchase Agreement, dated as of December 11, 2000,
pursuant to which the Sellers have agreed to sell to Constellation and
Constellation has agreed to purchase from the Sellers, the undivided interests
of the Sellers in certain assets identified therein with respect to an electric
energy generation station which is commonly known as Nine Mile Point Nuclear
Generating Station Unit 2 (the "NMP-2 APA") (such assets being collectively
referred to herein as the "Generating Facility", which term is defined below in
greater detail);
WHEREAS, Constellation, Niagara Mohawk, and NYSEG have entered into a
Reciprocal Easement Agreement for the Generating Facility dated December 11,
2000;
WHEREAS, after the Closing Date, Constellation will operate the Generating
Facility as the holder of the NRC licenses for the Generating Facility and in
accordance with the terms of the Nine Mile Point Nuclear Station Unit 2
Operating Agreement, as amended and assigned;
WHEREAS, the Generating Facility is interconnected with the Transmission
System (as defined below) through the Co-owned Transmission Facilities (as
defined below) and the Parties desire to continue interconnection on the terms
set forth herein;
WHEREAS, the Producer's ability to deliver and sell Electricity, as
defined below, from the Generating Facility is contingent on the Generating
Facility remaining interconnected to the Transmission System through the
Co-owned Transmission Facilities; and
WHEREAS, the Parties have agreed to execute this Agreement in order to
establish the requirements, terms, and conditions for the continuing
interconnection of the Generating Facility with the Transmission System through
the Co-owned Transmission Facilities.
NOW THEREFORE, in consideration of the mutual representations, covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Parties hereto agree as follows:
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 5
FERC Electric Rate Schedule No. [___]
ARTICLE I
DEFINITIONS
1.1 Definitions
1.1.1 The following terms, when used herein with initial capitalization,
shall have the meanings specified in this section.
"Affiliate" means, with respect to a corporation, partnership, or other
entity, each other corporation, partnership, or other entity that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such corporation, partnership, or other entity.
"Agreement" means this Interconnection Agreement, including all schedules
attached hereto and any amendments hereto.
"Bulletin No. 756" means that certain internal Niagara Mohawk document
dated December 1997, titled "Supplement to Specifications for Electrical
Installations; Parallel Generation Requirements" and designated Electric System
Bulletin No. 756 and its Appendix C, as amended or superseded.
"Closing Date" means the date on which the Sellers' respective undivided
interests in the Generating Facility are transferred from the Sellers to
Constellation pursuant to the NMP-2 APA.
"Commercially Reasonable Efforts" means efforts which are designed to
enable a Party, directly or indirectly, to satisfy expeditiously a condition to,
or otherwise assist in the consummation of, the actions contemplated by this
Agreement and which do not require the performing Party to expend any funds or
assume liabilities other than expenditures and liabilities which are customary
and reasonable in nature and amount in transactions of the kind and nature
contemplated by this Agreement.
"Confidential Information" means any plan, specification, pattern,
procedure, design, device, list, concept, policy or compilation relating to the
present or planned business of a Party which has not been released publicly by
its authorized representatives and which has been designated as "Confidential"
by the Party asserting a claim of confidentiality, whether such Confidential
Information is conveyed orally, electronically, in writing, through inspection,
or otherwise. Confidential Information as used herein also includes Confidential
Information supplied by any Party to another Party prior to the execution of
this Agreement, and such Confidential Information shall be considered in the
same manner and be subject to the same treatment as the Confidential Information
made available after the execution of this Agreement. Confidential Information
shall also include Confidential Information observed by any Party while visiting
the premises of another Party.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 6
FERC Electric Rate Schedule No. [___]
"Co-owned Transmission Facilities" means the properties, structures,
facilities, equipment, devices, and apparatus wholly or partly owned or leased
by, or under contract to, or under the control of the Companies or their
affiliates on Companies' side of the Delivery Points and the Off-site Power
Supply Points, as indicated on the one-line diagram attached hereto as Schedule
A, which are necessary to interconnect the Generating Facility to the
transmission system, or are necessary for purposes of providing transmission and
Retail Tariff services, including services under the NYISO Tariff.
"Decommission" shall have the same meaning as in the NMP-2 APA.
"Delivery Points" means the points at which Electricity is delivered from
the Generating Facility to the Transmission System, as indicated on a one-line
diagram attached hereto as Schedule A.
"Electricity" means electric capacity as measured in MW or kW, energy as
measured in MWh or kWh, and ancillary services. "Emergency" means a condition or
situation which is deemed imminently likely to (i) endanger life, property, or
public health; or (ii) adversely affect or impair the Co-owned Transmission
Facilities, the Transmission System, the Generating Facility, or the electrical
or transmission systems of others to which Niagara Mohawk's electrical systems
are directly or indirectly connected.
"FERC" means the Federal Energy Regulatory Commission, or its successor.
"Generating Facility" means the Nine Mile Point Nuclear Generating Station
Unit 2 and all Modifications, as defined below, with respect thereto, including,
without limitation, facilities, appurtenances, equipment, property and other
improvements on the Producer's side of the Delivery Points and the Off-site
Power Supply Points, as indicated on a one-line diagram attached hereto as
Schedule A.
"Good Utility Practice"means any of the practices, methods and acts engaged
in or approved by a significant portion of the electric utility industry during
the relevant time period, or any of the practices, methods and acts which, in
the exercise of reasonable judgment in light of the facts known at the time the
decision was made, could have been expected to accomplish the desired result at
a reasonable cost consistent with good business practices, reliability, safety
and expedition and compliance with applicable laws and regulations. Good Utility
Practice is not intended to be limited to the optimum practice, method, or act,
to the exclusion of all others, but rather to be acceptable practices, methods,
or acts generally accepted in the electric utility industry. Good Utility
Practice shall include, but not be limited to, NERC (defined below) criteria,
rules, guidelines and standards, NPCC (defined below) criteria, rules,
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 7
FERC Electric Rate Schedule No. [___]
guidelines and standards, NYSRC (defined below) criteria, rules, guidelines and
standards, and NYISO (defined below) criteria, rules, guidelines and standards,
where applicable, as they may be amended from time to time including the rules,
guidelines and criteria of any successor organization to the foregoing entities.
When applied to the Producer, the term Good Utility Practice shall also include
standards applicable to a utility generator connecting to the distribution or
transmission facilities or system of another utility.
"Hazardous Substances" means petroleum, petroleum products, asbestos, lead
and those substances, materials, products or wastes which are classified as
hazardous or toxic under any applicable federal, state or local law, or any
regulations promulgated thereunder.
"Interconnection Service" means the services provided by the Companies for
the continued interconnection of the Generating Facility with the Co-owned
Transmission Facilities and the Transmission System pursuant to the terms of
this Agreement.
"Joint Use Facilities" means facilities and equipment which are identified
as Joint Use Facilities in Schedule B hereto, as amended from time to time,
which are owned by either Niagara Mohawk or the Producer and which contribute to
the operational reliability of the Transmission System and are, therefore,
operated jointly by Niagara Mohawk and the Producer.
"Modification" means any new construction, new facilities, additions,
reinforcements, alterations, improvements, appurtenances, replacements or
upgrades made to the Co-owned Transmission Facilities, the Transmission System
or the Generating Facility by a Party which may impact the operations of the
other Party.
"NERC" means North American Electric Reliability Council, or any successor
thereto.
"New York Control Area" shall have the same meaning as in the Independent
System Operator Agreement establishing the New York ISO (as defined below).
"NMP-2 APA" is defined in the recitals to this Agreement.
"NPCC" means the Northeast Power Coordination Council (a reliability
council under Section 202 of the Federal Power Act), or any successor thereto.
"NRC" means the Nuclear Regulatory Commission, or any successor thereto.
"NRC Maintenance Rule" means the NRC rules and regulations governing the
maintenance of the Co-owned Transmission Facilities (as applicable) and the
Generating Facility, at 10 C.F.R. Sec. 50.65, as amended or superseded.
"NRC Requirements and Commitments" means all the requirements, obligations,
duties, and commitments required to be followed and honored by the Producer
pursuant to the Atomic Energy Act of 1954, the regulations of the NRC, the
Generating Facility's operating license and nuclear materials licenses, and all
other laws, regulations, licenses, and commitments to which the Producer is or
may become subject from time to time, as amended or superseded.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 8
FERC Electric Rate Schedule No. [___]
"NYPSC" means the New York Public Service Commission, or any successor
thereto.
"NYISO" or "New York ISO" means the organization formed as an Independent
System Operator for the New York State transmission system in accordance with
FERC order(s) in Docket Nos. ER97-1523-000, et al., or any successor thereto.
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"NYISO Tariff" means the FERC-approved Open Access Transmission Tariff for
the NYISO and/or the FERC-approved services tariff for the NYISO, as applicable,
and as amended or superseded.
"NYSRC" mean the New York State Reliability Council, or any successor
thereto.
"Off-site Power Service" means all the services necessary to permit the
continued supply of Electricity to and from the Generating Facility in
accordance with the terms of this Agreement.
"Off-site Power Supply Points" means the points at which Off-site Power
Service is supplied by Niagara Mohawk to the Producer as indicated on a one-line
diagram attached hereto as Schedule A.
"Reciprocal Easement Agreement" means the Reciprocal Easement Agreement for
the Generating Facility, dated as of December 11, 2000, by and among
Constellation, Niagara Mohawk, and NYSEG as amended.
"Release" means release, spill, leak, discharge, dispose of, pump, emit,
empty, inject, ▇▇▇▇▇, dump, or allow to escape into or through the environment.
"Retail Tariff" means Niagara Mohawk's Retail Tariff, NYPSC No. 207 -
Electricity as amended and accepted by the NYPSC, as amended or superseded.
"Revenue Meters" means all MWh, MVARh meters, pulse isolation relays, pulse
conversion relays, and transducers used by the NYISO or Niagara Mohawk for
billing purposes, and associated totalizing equipment and appurtenances
(including voltage transformers and current transformers) used to measure the
transfer of energy as indicated on a one-line diagram attached hereto as
Schedule A
.
"Switching, Tagging, and ▇▇▇▇-Up Rules" means Niagara Mohawk's and the
Producer's switching, tagging and ▇▇▇▇-up rules and procedures as adopted and
implemented in accordance with OSHA standards, at 29 C.F.R. Sec. 1910.269(d), as
amended or superseded.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 9
FERC Electric Rate Schedule No. [___]
"Transmission System" means the properties, structures, facilities,
equipment, devices, and apparatus (other than the Co-owned Transmission
Facilities) wholly or partly owned or leased by, or under contract to, or under
the control of Niagara Mohawk on Niagara Mohawk's side of the Delivery Points
and the Off-site Power Supply Points, as indicated on the one-line diagram
attached hereto as Schedule A, which are necessary to interconnect the
Generating Facility to the transmission system, or are necessary for purposes of
providing transmission and Retail Tariff services, including services under the
NYISO Tariff.
1.2 Interpretation
The following rules shall govern the interpretation of this Agreement,
including its definitions. The terms "includes" or "including" shall not be
limiting, whether or not followed by the words "without limitation." References
to an article or section shall mean an article or section of this Agreement
unless the context requires otherwise, and reference to a given agreement or
instrument shall be a reference to that agreement or instrument as modified,
amended, supplemented and restated through the date as of which such reference
is made.
ARTICLE II
AGREEMENT TO INTERCONNECT
DESCRIPTION OF FACILITIES
2.1 The Parties agree to interconnect the Generating Facility to the
Transmission System in accordance with the terms of this Agreement.
2.2 The Generating Facility shall include all facilities and equipment up to
the Delivery Points and Off-site Power Supply Points as indicated on
Schedule A. The Producer agrees that the installation of the electrical
equipment and the operation of the Generating Facility must meet or exceed
the standards of Good Utility Practice, NRC Requirements and Commitments,
all requirements of ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the
requirements, rules and regulations of the NYISO; provided, however, that
in the event of a conflict between the requirements, rules and regulations
of the NYISO and the requirements of Bulletin No. 756, the requirements,
rules and regulations of the NYISO shall govern.
2.3 The Producer recognizes that, except as provided hereunder, nothing in this
Agreement confers upon the Producer any right to transmit Electricity over
the Co-owned Transmission Facilities or Transmission System.
2.4 The Companies shall use Good Utility Practice to own, operate and maintain
the Co-owned Transmission Facilities. The Companies, however, do not
guarantee or warrant uninterrupted availability of the Co-owned
Transmission Facilities. Niagara Mohawk shall use Good Utility Practice to
own, operate and maintain the Transmission System. Niagara Mohawk, however,
does not guarantee or warrant uninterrupted availability of the
Transmission System.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 10
FERC Electric Rate Schedule No. [___]
2.5 Niagara Mohawk shall provide the Producer with Electricity to the Off-site
Power Supply Points in accordance with the rates, terms and conditions set
forth in the Retail Tariff. In connection with the execution of this
Agreement, the Producer has completed and submitted to Niagara Mohawk all
applications and forms as required by the Retail Tariff.
2.6 Without limiting any of their rights hereunder, the Companies shall have
the right to operate the Joint Use Facilities on the Producer's side of the
Delivery Points and the Off-site Power Supply Points (a) in the event of an
Emergency, or (b) during coordinated maintenance of the Co-owned
Transmission Facilities or the Transmission System. The Companies shall
exercise such right in a non-discriminatory manner and in accordance with
Good Utility Practice, and after giving the Producer reasonable notice
under the circumstances.
2.7 If the Producer relies on the Companies' system protection equipment and
practices for protection of the Generating Facility or if the Producer
relies on any other of the Companies' equipment for support of its
operations, the Producer agrees to indemnify, defend, and save harmless the
Companies, their agents and employees, against any and all penalties,
judgments, fines (civil or criminal), or other costs arising from any
damage or loss to the Generating Facility as a result of such reliance,
except where such costs arise from gross negligence or intentional
misconduct on the part of the Companies or their agents or representatives.
If the Producer relies on Niagara Mohawk's system protection equipment and
practices for protection of the Generating Facility or if the Producer
relies on any other of Niagara Mohawk's equipment for support of its
operations, the Producer agrees to indemnify, defend, and save harmless
Niagara Mohawk, its agents and employees, against any and all penalties,
judgments, fines (civil or criminal), or other costs arising from any
damage or loss to the Generating Facility as a result of such reliance,
except where such costs arise from gross negligence or intentional
misconduct on the part of Niagara Mohawk or its agents or representatives.
2.8 This Agreement does not waive, alter or impair the rights or obligations of
any party under any other agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Constellation is a limited liability company duly organized and validly
existing under the laws of the State of Maryland. Constellation is
qualified to do business under the laws of the State of New York, is in
good standing under the laws of the State of New York, has the power and
authority to own its properties, to carry on its business as now being
conducted, and to enter into this Agreement and the transactions
contemplated herein and perform and carry out all covenants and obligations
on its part to be performed under and pursuant to this Agreement, and is
duly authorized to execute and deliver this Agreement and consummate the
transactions contemplated herein.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 11
FERC Electric Rate Schedule No. [___]
3.2 NYSEG is a corporation duly organized and validly existing under the laws
of the State of New York. NYSEG is qualified to do business under the laws
of the State of New York, is in good standing under the laws of the State
of New York, has the power and authority to own its properties, to carry on
its business as now being conducted, and to enter into this Agreement and
the transactions contemplated herein and perform and carry out all
covenants and obligations on its part to be performed under and pursuant to
this Agreement, and is duly authorized to execute and deliver this
Agreement and consummate the transactions contemplated herein.
3.3 Niagara Mohawk is a corporation duly organized, validly existing and
qualified to do business under the laws of the State of New York, is in
good standing under its certificate of incorporation and the laws of the
State of New York, has the corporate authority to own its properties, to
carry on its business as now being conducted, and to enter into this
Agreement and the transactions contemplated herein and perform and carry
out all covenants and obligations on its part to be performed under and
pursuant to this Agreement, and is duly authorized to execute and deliver
this Agreement and consummate the transactions contemplated herein.
3.4 The Producer and each of the entities comprising the Companies represents
that: (a) it is not prohibited from entering into this Agreement and
discharging and performing all covenants and obligations on its part to be
performed under and pursuant to this Agreement; (b) upon the acceptance of
the terms of this Agreement by FERC, the execution and delivery of this
Agreement, the consummation of the transactions contemplated herein
including the fulfillment of and compliance with the provisions of this
Agreement will not conflict with or constitute a breach of or a default
under any of the terms, conditions or provisions of any law, rule or
regulation, any order, judgment, writ, injunction, decree, determination,
award or other instrument or legal requirement of any court or other agency
of government, or any contractual limitation, corporate restriction or
outstanding trust indenture, deed of trust, mortgage, loan agreement,
lease, other evidence of indebtedness or any other agreement or instrument
to which it is a party or by which it or any of its property is bound and
will not result in a breach of or a default under any of the foregoing; and
(c) unless this Agreement is materially modified by any court or
appropriate regulatory authority having jurisdiction and subsequently
terminated, this Agreement shall be a legal, valid and binding obligation
enforceable in accordance with its terms, except as limited by any
subsequent order of any court or appropriate regulatory authority having
jurisdiction, or by any applicable reorganization, insolvency, liquidation,
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 12
FERC Electric Rate Schedule No. [___]
readjustment of debt, moratorium, or other similar laws affecting the
enforcement of rights of creditors generally as such laws may be applied in
the event of a reorganization, insolvency, liquidation, readjustment of
debt or other similar proceeding of or moratorium applicable to the Party
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law.)
ARTICLE IV
ACCESS RIGHTS
4.1 The Parties' rights and obligations of access are governed by the
Reciprocal Easement Agreement and by subsection 6.1.8 of this Agreement.
ARTICLE V
OPERATION, MAINTENANCE, MODIFICATION AND DECOMMISSIONING
5.1 Operation, Maintenance and Repair.
5.1.1 Except as otherwise provided in this Agreement, the Companies, at
their own expense, will operate, maintain and repair (repair
includes, but is not limited to, replacement of existing equipment
when required due to failure) the Co-owned Transmission Facilities
in accordance with Good Utility Practice and, to the extent
applicable, NRC Requirements and Commitments.
5.1.2 Except as otherwise provided in this Agreement, Niagara Mohawk, at
its own expense, will operate, maintain and repair (repair includes,
but is not limited to, replacement of existing equipment when
required due to failure) the Transmission System in accordance with
Good Utility Practice and, to the extent applicable, NRC
Requirements and Commitments.
5.1.3 Except as otherwise provided in this Agreement, the Producer, at its
own expense, will operate, maintain and repair (repair includes, but
is not limited to, replacement of existing equipment when required
due to failure) the Generating Facility in accordance with Good
Utility Practice, and the NRC Requirements and Commitments.
5.1.4 The Producer will give reasonable notice to the Companies of the
schedule for scheduled outages of the Generating Facility promptly
after such schedule is established in accordance with NRC
Requirements and Commitments, Bulletin No. 756, Good Utility
Practice, the Retail Tariff, NYISO practices and, upon making any
changes to such schedules thereafter, shall promptly notify the
Companies of any such changes.
5.1.5 The Companies will give reasonable notice to the Producer of the
schedule for maintenance of the Co-owned Transmission Facilities and
the Transmission System promptly after such schedule is established
in accordance with Good Utility Practice and applicable tariffs,
and, upon making any changes to such schedules thereafter, shall
promptly notify the Producer of any such changes.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 13
FERC Electric Rate Schedule No. [___]
5.1.6 In furtherance of the Parties' mutual objective to preserve and
maintain the reliability of the Co-owned Transmission Facilities,
the Transmission System and the Generating Facility, the Producer
agrees to confer with the Companies to coordinate the planning and
scheduling of any outages and preventative and corrective
maintenance and any changes thereto in a manner that will preserve
and maintain the reliability of, and minimize the effect on, the
Co-owned Transmission Facilities and the Transmission System.
Likewise, the Companies agree to confer with the Producer to
coordinate the planning and scheduling of outages and preventative
and corrective maintenance to the Co-owned Transmission Facilities
and the Transmission System to minimize their effect on the
operation of the Generation Facility. Each Party will bear its own
costs in connection with the coordination activities called for in
this section.
5.1.7 If the Producer requests that the Companies perform maintenance
during a time period other than as scheduled by the Companies, the
Companies will use Commercially Reasonable Efforts to meet the
Producer's request as long as meeting the request would not be
expected, as reasonably determined by the Companies, to have an
adverse impact upon the Companies' operations or the operations of
the Companies' customers. Notwithstanding the foregoing, should the
Producer request to perform maintenance that the Companies in good
faith determine may have an adverse impact on the Companies'
operations or the operations of the Companies' customers during the
period of June through September ("Peaking Period"), and if such
maintenance may be delayed until after such period, the Companies
may reject the Producer's scheduling request. Such Peaking Period
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 14
FERC Electric Rate Schedule No. [___]
may be modified from time to time to be in accord with the four
month peaking period as identified in NYISO market data for the New
York Control Area. If such maintenance may not be delayed until
after such period, the maintenance shall be scheduled to minimize
the risk of an adverse impact on the Companies' operations or the
operations of the Companies' customers. The Producer shall reimburse
the Companies for all reasonable costs incurred by the Companies
related to satisfying the Producer's request.
5.2 Modifications.
5.2.1 The Companies, with respect to the Co-owned Transmission Facilities
and Niagara Mohawk, with respect to the Transmission System, shall
retain the discretion, consistent with Good Utility Practice and NRC
Requirements and Commitments, to determine whether, when, and in
what manner Modifications to the Co-owned Transmission Facilities or
the Transmission System are to be made, and shall promptly notify
the Producer of the schedule for making any such Modification. Such
notification shall include information relating to and a good faith
estimate of the anticipated impact of the Modification on the
Generating Facility's operations, including whether performing the
Modification, or the Modification itself, is expected to interrupt
the flow of power over the Co-owned Transmission Facilities or the
Transmission System. However, no liability shall arise in connection
with the good faith estimate or information related to the
anticipated impact of such Modification.
5.2.2 The Producer shall retain the discretion, consistent with Good
Utility Practice and NRC Requirements and Commitments, to determine
whether, when, and in what manner Modifications to the Generating
Facility are to be made, and shall promptly notify the Companies of
the schedule for making any such Modification. Such notification
shall include information relating to and a good faith estimate of
the anticipated impact of the Modification on the Co-owned
Transmission Facilities, the Transmission System or the Companies'
electric operations. However, no liability shall arise in connection
with the good faith estimate or information related to the
anticipated impact of such Modification.
5.2.3 Through the Operating Committee (as defined in Section 10.4), the
Companies and the Producer shall use best efforts to mutually agree
on the scheduling of a Modification to minimize any adverse impact
on the Generating Facility, the Co-owned Transmission Facilities or
the Transmission System. All Modifications planned by the Companies
shall give due regard to the Producer's NRC Requirements and
Commitments and duties and responsibilities as a nuclear operator.
5.2.4 If a Modification to the Co-owned Transmission Facilities or the
Transmission System is requested by the Producer or is solely
required to support the operations of the Generating Facility, the
Companies, with respect to the Co-owned Transmission Facilities or
Niagara Mohawk, with respect to the Transmission System, shall make,
operate, maintain and repair at the Producer's expense, any such
Modification, and the Producer shall reimburse Niagara Mohawk and/or
the Companies for all actual costs and expenses reasonably incurred
in relation to making, operating, maintaining and repairing the
Modification. If a Modification to the Co-owned Transmission
Facilities or the Transmission System is required to support the
operations of the Generating Facility, the Producer shall reimburse
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 15
FERC Electric Rate Schedule No. [___]
the Companies and/or Niagara Mohawk, as applicable, to the extent
such Modification inures to the benefit of the Generating Facility
or supports the Generating Facility. If a Modification to the
Generating Facility is requested by the Companies or Niagara Mohawk
or is solely required to support the operations of the Companies or
Niagara Mohawk, the Producer shall make, operate, maintain and
repair at the Companies' or Niagara Mohawk's expense (as the case
may be), any such Modification, and the Companies or Niagara Mohawk
shall reimburse the Producer for all actual costs and expenses
reasonably incurred in relation to making, operating, maintaining
and repairing the Modification.
5.2.5 The notice provided under Section 5.2.2 shall include plans,
specifications, information and operating instructions relating to
the impact of planned Modifications on the Co-owned Transmission
Facilities, the Transmission System or the Companies' electric
operations. Notwithstanding Section 5.2.4, the Producer shall be
responsible for all costs and expenses reasonably incurred by the
Companies and/or Niagara Mohawk associated with ensuring that the
Co-owned Transmission Facilities and/or the Transmission System
would be compatible with a Modification implemented by the Producer.
5.2.6 All Modifications to the Generating Facility, the Co-owned
Transmission Facilities, or the Transmission System, and any
resulting effects on the Co-owned Transmission Facilities or the
Transmission System, shall meet the rules and requirements of NERC,
NPCC, NYSRC, the NRC, and the NYISO or their respective successors,
the standards of Good Utility Practice, the Retail Tariff and the
requirements of Bulletin No. 756; provided, however, that in the
event of a conflict between the rules and requirements of the NYISO
and the requirements of Bulletin No. 756, the rules and requirements
of the NYISO shall govern.
5.2.7 If the Producer elects to construct, at its own expense, a
Modification of the Co-owned Transmission Facilities subject to the
terms of this Agreement, then the Producer shall transfer all
rights, title and interest in such Modification to Niagara Mohawk
upon completion of construction and shall execute all necessary
documents to effectuate transfer of ownership thereof to Niagara
Mohawk. Producer shall obtain any necessary permits, authorizations
and rights-of-way for the Modification, in accordance with this
Agreement, the costs thereof to be paid by the Producer. Producer
shall transfer any such rights-of-way to Niagara Mohawk. Niagara
Mohawk will accept transfer of ownership and energize the
Modification, upon Producer's satisfaction, at Producer's expense,
of the following: (a) the modification shall comply with Niagara
Mohawk's engineering standards and all applicable laws, codes, rules
and regulations; (b) the transfer of all rights of way necessary for
the Modification shall be made in fee simple (by warranty deed free
and clear of all liens and encumbrances) for consideration in the
amount of One Dollar and (c) a land survey and title insurance for
the Modification shall be provided to Niagara Mohawk by Producer in
a form and amount acceptable to Niagara Mohawk. Regardless of
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 16
FERC Electric Rate Schedule No. [___]
whether Niagara Mohawk or the Producer constructs the Modification
to the Co-owned Transmission Facilities, Niagara Mohawk shall own,
operate, maintain and repair at Producer's expense, any such
Modification, and Producer shall reimburse Niagara Mohawk for all
costs in accordance with this Article and Article IX herein.
5.2.8 If the Producer elects to construct, at its own expense, a
Modification of the Transmission System subject to the terms of this
Agreement, then the Producer shall transfer all rights, title and
interest in such Modification to Niagara Mohawk upon completion of
construction and shall execute all necessary documents to effectuate
transfer of ownership thereof to Niagara Mohawk. Producer shall
obtain any necessary permits, authorizations and rights-of-way for
the Modification, in accordance with this Agreement, the costs
thereof to be paid by the Producer. Producer shall transfer any such
rights-of-way to Niagara Mohawk. Niagara Mohawk will accept transfer
of ownership and energize the Modification, upon Producer's
satisfaction, at Producer's expense, of the following: (a) the
Modification shall comply with Niagara Mohawk's engineering
standards and all applicable laws, codes, rules and regulations; (b)
the transfer of all rights of way necessary for the Modification
shall be made in fee simple (by warranty deed free and clear of all
liens and encumbrances) for consideration in the amount of One
Dollar and (c) a land survey and title insurance for the
Modification shall be provided to Niagara Mohawk by Producer in a
form and amount acceptable to Niagara Mohawk. Regardless of whether
Niagara Mohawk or the Producer constructs the Modification to the
Transmission System, Niagara Mohawk shall own, operate and maintain,
at Producer's expense, any such Modification, and Producer shall
reimburse Niagara Mohawk for all costs of operating and maintaining
the Modification in accordance with this Article and Article IX
herein.
5.3 Relocation, Rearrangement, Abandonment or Retirement.
5.3.1 If, during the term of this Agreement, the Companies or Niagara
Mohawk determine that they are required by Good Utility Practice to
relocate, rearrange, abandon, or retire the Co-owned Transmission
Facilities or the Transmission System, the Companies and/or Niagara
Mohawk shall give the Producer no less than one (1) year advance
written notice; provided, however, if the Companies or Niagara
Mohawk are required or ordered by governmental authority or the
NYISO to relocate, rearrange, abandon, or retire the Co-owned
Transmission Facilities or the Transmission System, the Companies
and/or Niagara Mohawk shall promptly give the Producer written
notice of such requirement or order. Through the Operating
Committee, the Companies and the Producer shall use best efforts to
mutually agree on the scheduling of such relocation, rearrangement,
abandonment or retirement to minimize any adverse impact on the
Generating Facility or the Co-owned Transmission Facilities and the
Transmission System. Any relocation, rearrangement, abandonment or
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 17
FERC Electric Rate Schedule No. [___]
retirement planned by the Companies shall give due regard to the
Producer's NRC Requirements and Commitments and the Producer's
duties and responsibilities as a nuclear operator.
5.3.2 If relocation, rearrangement, abandonment, or retirement is required,
the Companies, with respect to the Co-owned Transmission Facilities
or Niagara Mohawk, with respect to the Transmission System, shall
perform or have performed the studies necessary to identify any
Modifications to the Co-owned Transmission Facilities and/or
Transmission System necessary to the continued operation of the
Generating Facility and shall inform the Producer of the estimated
costs. The cost of any such studies shall be shared equally by the
Parties. The Producer shall at its option either: (a) reimburse the
Companies, with respect to the Co-owned Transmission Facilities or
Niagara Mohawk, with respect to the Transmission System, for all
actual costs and expenses of such Modification in accordance with
Articles V and IX of this Agreement; (b) construct, at its own
expense, a Modification subject to the terms of this Agreement;
provided, however, that design, engineering, and construction
activities relating to the existing Co-owned Transmission Facilities
or Transmission System shall be performed by the Companies, with
respect to the Co-owned Transmission Facilities or Niagara Mohawk,
with respect to the Transmission System, or by a third party
selected by the Companies or Niagara Mohawk at the Producer's
expense; or (c) terminate this Agreement, upon no less than sixty
(60) days advance written notice to the Companies and/or Niagara
Mohawk. Nothing in this subsection, however, shall impair the
Parties' obligations under Section 5.2 of this Agreement to the
extent the relocation, rearrangement, abandonment, or retirement
constitutes a Modification.
5.4 Decommissioning.
5.4.1 The Producer, at its own expense, will Decommission the Generating
Facility in accordance with NRC Requirements and Commitments and the
NMP-2 APA.
5.4.2 In furtherance of the Parties' mutual objective to preserve and
maintain the reliability of the Co-owned Transmission Facilities and
the Transmission System, the Producer and the Companies agree to
coordinate the planning and scheduling of Decommissioning in a
manner so as to maintain the reliability of, and to minimize the
effect on, the Co-owned Transmission Facilities and Transmission
System. Section 5.2 of this Agreement shall apply to any
Modification of the Co-owned Transmission Facilities or Transmission
System necessitated by Decommissioning.
5.5 NRC Maintenance Rule.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 18
FERC Electric Rate Schedule No. [___]
5.5.1 Producer's Obligations and Authority.
5.5.1.1 In furtherance of Producer's obligation to comply with the NRC
Maintenance Rule, the Companies agree that Producer has the
authority, control and obligation to: (1) review and modify as
appropriate the Companies' identification of all facilities,
components and functions covered under the NRC Maintenance Rule,
regardless of ownership, and require the Companies to modify as
appropriate the scope of such facilities, components and functions
so as to meet NRC requirements; (2) in cooperation with the
Companies and in accordance with NRC guidance, to establish and
approve availability and reliability performance criteria and
improvement goals for all such facilities, components and
functions, regardless of ownership, to permit Producer to comply
with the NRC Maintenance Rule; and (3) in cooperation with the
Companies and in accordance with NRC guidance, to approve all
improvements, maintenance, inspections, monitoring, operational
procedures, or any other activity affecting such facilities,
components and functions, regardless of ownership, to permit
Producer to comply with the NRC Maintenance Rule.
5.5.1.2 The Companies agree that they will cooperate with the Producer to
assure the Producer's compliance with the NRC Maintenance Rule as
it applies to the facilities, components and functions of the
Co-owned Transmission Facilities and the Transmission System. The
Producer shall reimburse the Companies for the incremental costs
to the companies of compliance with the NRC Maintenance Rule
beyond those costs that otherwise are customary and reasonable for
a non-nuclear facility.
5.5.1.3 Any incremental costs or expenses of the Companies incurred as a
result of a Producer's request to the Companies for additional or
different action other than those required under Section 5.5.1.2
above, or arising from such Producer's compliance with any
amendment or modification to, or any change in interpretation of,
the NRC Maintenance Rule after the Closing Date, shall be borne by
Producer.
5.5.2 Schedule of Components. Schedule D to this Agreement sets forth the
substation components that, as of the Closing Date, are necessary to
fulfill those functions covered by the NRC Maintenance Rule,
together with the schedule, to be provided as of the Closing Date,
for maintenance, inspection and testing of said components. All
other substation components will be maintained, inspected and tested
in accordance with the Companies' standard procedures for substation
maintenance, inspection and testing. In the event the Parties agree
that a component not identified in Schedule D should have been
included in Schedule D the Parties may, by their mutual agreement,
add substation components to Schedule D. In order to comply with the
NRC Maintenance Rule, Producer may, in accordance with NRC
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 18
FERC Electric Rate Schedule No. [___]
Requirements and Commitments, add new substation components to
Schedule D as appendices to Schedule D, and also may change
schedules for maintenance, inspection and testing of such
components, subject to the Producer's payment of additional costs or
expenses in accordance with Section 5.5.1.3.
5.5.3 Notice. To the extent the Companies become aware of any failure of
any substation component identified in Schedule D, the Companies
shall provide immediate notice thereof to the Producer.
5.5.4 Analysis. As required by the NRC Maintenance Rule, the Producer may,
at its discretion and with the Companies' reasonable cooperation,
conduct an analysis of a failure of any substation component
identified in Schedule D, and any personnel error leading to the
failure of any such component. The Companies will cooperate with the
Producer and promptly, upon Producer's request, provide Producer
with all information under the Companies' control and consistent
with Good Utility Practice necessary for Producer to: (1) determine
whether the failure was a functional failure of equipment or the
result of personnel error; (2) determine whether the failure, if a
functional failure, was maintenance preventable; and (3) conduct
root cause analyses of those failures as the Producer deems
appropriate. At the request of Producer, and at Producer's expense,
the Companies shall assist in the performance of a root cause
analysis for any substation component failure identified in Schedule
D, and any personnel error leading to the failure of any such
component, as Producer deems necessary.
5.5.5 Testing. As necessary, in accordance with Good Utility Practice, or
at Producer's request, the Companies will arrange for independent
testing of any failed component identified in Schedule D subject to
the Producer's payment of additional costs or expenses in accordance
with Section 5.5.1.3.
5.5.6 Performance Improvement Plan. Producer shall analyze data supplied by
the Companies concerning a failure of a substation component
identified in Schedule D and any personnel error leading to the
failure of any such component, and shall notify the Companies if a
performance improvement plan is required in accordance with the NRC
Maintenance Rule. The Producer and the Companies will cooperate to
develop and implement any such performance plan, the cost of which
shall be borne by Producer.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 20
FERC Electric Rate Schedule No. [___]
5.5.7 Records. For the term of this Agreement, the Companies shall provide
Producer with complete and accurate records concerning all
preventative and corrective maintenance activities performed by the
Companies on all the Companies substation components identified in
Schedule D.
5.6 Emergency Procedure.
5.6.1 The Companies shall provide Producer with prompt oral notification
of any Emergency in the Co-owned Transmission Facilities or the
Transmission System which may reasonably be expected to affect
Producer's immediate operation of the Generating Facilities, and
Producer shall provide the Companies prompt oral notification of any
Emergency which may reasonably be expected to affect the Companies'
operations. Such oral notification shall be followed within 24 hours
by written notification. The written notification shall describe, to
the extent reasonably ascertainable, the damage or deficiency, the
anticipated length of outage and the corrective action. Provision of
such notification shall be subject to the requirements of FERC Order
889 or any other applicable standards of conduct.
5.6.2 If, in the good faith judgment of any Party, an Emergency endangers
or could endanger life or property, the Party recognizing the
problem shall take such action as may be reasonable and necessary to
prevent, avoid or mitigate injury, danger or loss. Either Party may,
consistent with Good Utility Practice, request that NYISO take
whatever actions it deems necessary during an Emergency to: (i)
preserve public safety; (ii) preserve the integrity of the Co-owned
Transmission Facilities and the Transmission System; (iii) limit or
prevent damage; or (iv) expedite restoration of service.
5.7 Facility Voltage Limits.
5.7.1 The Producer shall notify Niagara Mohawk of the Producer's required
voltage limits at the Off-site Power Supply Points which are
required to supply auxiliary power and to ensure that emergency
equipment fed from the auxiliary bus has suitable voltage to
function in accordance with applicable NRC Requirements and
Commitments. Promptly upon receipt of such notification from the
Producer, Niagara Mohawk shall communicate the Producer's required
voltage limits at the substation to the NYISO as applicable.
5.7.2 Niagara Mohawk or the Companies, as applicable, will control, or
communicate and coordinate with NYISO or the NPCC, as applicable, in
order to control the voltage levels at the Off-site Power Supply
Points within the Producer's required limits.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 21
FERC Electric Rate Schedule No. [___]
5.7.3 Niagara Mohawk, the Companies and the Producer shall abide by the
following notification protocol with respect to the Producer's
required voltage levels at any and all substations that are the
source of off-site power to the Off-site Power Supply Points:
Whenever the voltage at such substations goes outside of or
approaches the Producer's high and low voltage limits, the Party
making the determination that such a condition exists shall notify
the other Party, and Niagara Mohawk will immediately notify the
NYISO as applicable.
5.7.4 Annually, the Producer shall contact Niagara Mohawk to determine from
Niagara Mohawk if any changes have been made to the Transmission
System that may or could affect minimum and maximum voltages at the
Off-Site Power Supply Points. If necessary, Niagara Mohawk will
provide the Producer with new voltage values of the off-site power
sources for applicable single contingency conditions.
ARTICLE VI
POWER DELIVERIES
6.1 Metering
6.1.1 Niagara Mohawk shall, at Producer's expense, provide, install, own,
and maintain the Revenue Meters, which shall record the delivery and
receipt of Electricity, including reactive power, in such a manner
so as to measure total Generating Facility Electricity output and
consumption. The Producer shall provide suitable space at the
Producer's facilities for the installation of Revenue Meters.
6.1.2 Niagara Mohawk, at Producer's expense, shall provide all necessary
communication equipment and transmission mediums such as telephone
lines and any necessary protection for such communication equipment
and related equipment, and shall furthermore be responsible for all
communication required by Bulletin No. 756, the NYPSC or the NYISO.
At Producer's expense, Niagara Mohawk shall purchase, own and
maintain all telemetering equipment located at the Producer's
facilities. Producer shall provide, install and own Niagara Mohawk
approved or specified test switches in the transducer circuits that
have been approved or specified by Niagara Mohawk. Producer shall be
responsible for any and all costs involved in the relocation of
communication circuits and transmission mediums that may be required
by Bulletin No. 756, the NYPSC, or the NYISO from time to time.
6.1.3 All Revenue Meters and any telemetering equipment installed pursuant
to this Agreement shall be routinely tested, at the Producer's
expense, by Niagara Mohawk in accordance with Good Utility Practice
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 22
FERC Electric Rate Schedule No. [___]
and applicable Niagara Mohawk, NYPSC and NYISO criteria, rules and
standards.
6.1.4 Electricity delivered to the Delivery Points by the Producer
hereunder shall be measured by electric watthour meters of a type
approved by the NYPSC. These Revenue Meters will be installed,
owned, and maintained by Niagara Mohawk and shall be sealed by
Niagara Mohawk, with the seal broken only upon occasions when the
Revenue Meters are to be inspected, tested or adjusted and
representatives of both Niagara Mohawk and Producer are present. The
metering and installation costs shall be borne by Producer. The
Revenue Meters shall be maintained in accordance with the rules set
forth in 16 NYCRR Part 92, as amended or superseded, and with Good
Utility Practice.
6.1.5 Niagara Mohawk will guarantee the installation of any new Revenue
Meter and its accuracy for a period of one (1) year from the date
the Revenue Meter is installed; provided, however, that this
guarantee excludes any incidental or consequential damages that the
Producer may suffer as a result of the failure of a meter to which
this guarantee applies. Any repair or replacement required during
the initial year will be at the expense of Niagara Mohawk. In the
event that any Revenue Meter is found to be inaccurate after the
initial year, Niagara Mohawk will repair or replace the same as soon
as possible at the expense of Producer. Niagara Mohawk and the
Producer shall have the right at all reasonable times, upon giving
not less than ten (10) days notice to the other (for the purpose of
permitting the other to be present at the inspection) to inspect,
and test meters. If the Revenue Meters are found to be defective,
Niagara Mohawk shall adjust, repair or replace the same at the
expense of the Producer or, if within the initial year, by Niagara
Mohawk. Any test or inspection requested in good faith by Niagara
Mohawk or the Producer shall be at the expense of the requester.
6.1.6 The Producer may elect to install its own Revenue Meters in addition
to Niagara Mohawk Revenue Meters. Such Revenue Meters shall meet the
requirements of 16 NYCRR Part 92, as amended or superseded. Should
any Revenue Meters installed by Niagara Mohawk fail to register
during the term of this Agreement, the Parties shall use Producer's
Revenue Meters, if installed, for the period of the failure. On any
day or days on which neither Party's Revenue Meters are in service,
the quantity of energy delivered shall be determined in such manner
as the Parties agree. Niagara Mohawk Revenue Meters shall be read on
a schedule compatible with Niagara Mohawk's normal meter reading
schedule with the costs of reading to be borne by the Producer.
6.1.7 In the event the Producer desires access to meter information, the
Producer, at its own expense, shall be responsible for purchasing
and installing software, hardware and/or other technology that may
be required to access such meter information. The software, hardware
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 23
FERC Electric Rate Schedule No. [___]
and/or other technology installed for this purpose shall be in
compliance with any applicable NYPSC or Niagara Mohawk rules,
requirements, or standards.
6.1.8 The Producer grants to the employees and agents of Niagara Mohawk the
right of access to Producer's premises at all reasonable times for
such purposes of the reading of meters; inspection of meters, their
wiring and related equipment; and installing, operating,
maintaining, disconnecting and removing of any or all of the
property belonging to Niagara Mohawk. If Producer refuses such
access to the meters or other Niagara Mohawk equipment, or if access
is obstructed or hazardous, Niagara Mohawk shall provide notice that
the Producer shall have five (5) days in which to permit access, or
remove any obstruction or hazard. If, after five (5) days from the
receipt of the notice, the Producer does not permit access or remove
any obstruction or hazard (except in an event of force majeure as
defined in Article XII herein), the Producer shall pay Niagara
Mohawk liquidated damages of $100,000 per day until access is
permitted or such obstruction or hazard is removed.
6.2 Losses.
If the Revenue Meters and the Delivery Points are not at the same location,
the Revenue Meters shall record delivery of Electricity in a manner that
accounts for losses occurring between the metering points and the Delivery
Points, which shall be calculated by Niagara Mohawk using a method
determined by Niagara Mohawk in accordance with Good Utility Practice. The
metering point, the Delivery Points, associated equipment and distance
between the metering point and the Delivery Points shall be as set forth in
Schedule A. If the Metering Points are changed to another location, losses
in accordance with this section will be recalculated. In addition, Producer
will be responsible for all costs associated with the change in Metering
Points.
6.3 Reactive Power Support.
The Producer agrees to provide reactive capability to regulate and maintain
system voltage at the Delivery Points in conformance with Bulletin No. 756,
the Retail Tariff or any applicable NYISO tariff or agreement at no cost to
Niagara Mohawk. The Producer may seek compensation for reactive power
pursuant to the terms of any applicable NYISO tariff or agreement or in any
market for reactive power.
6.4 Islanding.
With reference to ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ reserves the right,
consistent with applicable NRC Requirements and Commitments, to require,
allow or prevent the islanding of the Generating Facility during an
Emergency. This Agreement is not intended to impair or supersede any rights
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 24
FERC Electric Rate Schedule No. [___]
of the NYISO to allow or prevent the islanding of the Generating Facility.
6.5 Penalties.
The Producer shall be solely responsible and liable for any penalties or
charges imposed by the NYISO or by other regulatory bodies and payment
thereof, for any products derived or failure to provide such products from
the Generating Facility to the NYISO, or for any failure by the Producer to
comply with the regulations, rules, or procedures of the NYISO or other
regulatory bodies.
ARTICLE VII
INSURANCE PROVISIONS
7.1 "Party". For purposes of this Article and Schedule C to this Agreement,
"Party" or "Parties" shall mean, individually or collectively, as the
context may require, Niagara Mohawk, the Companies or the Producer.
7.2 Obligations. The Producer and the Companies shall each maintain, at their
own cost and expense, fire, liability, worker's compensation and such other
forms of insurance, in such amounts and on such terms and conditions as is
customary and reasonable in the electric utility industry and in
conformance with Good Utility Practice. At a minimum, the Producer and the
Companies shall comply with the insurance requirements set forth on
Schedule C to this Agreement.
7.3 Proof of Coverage. Upon request, the Producer and the Companies shall
promptly provide each other with either Certificate(s) of Insurance or an
evidence of insurance letter for all coverages required herein. Such
Certificate(s) or letter shall be provided to each address set out
immediately below:
TO NIAGARA MOHAWK:
Niagara Mohawk Power Corporation
Attn: Risk Management Bldg. A-1
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TO NYSEG:
New York State Electric & Gas Corporation
Corporate Drive
Kirkwood Industrial Park
Binghamton, New York 13902-5225
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 25
FERC Electric Rate Schedule No. [___]
TO CONSTELLATION NUCLEAR, LLC:
Risk Manager
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Constellation Energy Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such Certificate(s) or letter, and any renewals or extensions thereof,
shall provide that at least thirty (30) days advance written notice shall
be given in the event of any cancellation or diminution of coverage and
shall outline the amount of deductibles or self-insured retention that
shall be for the account of the Party required to provide such
Certificate(s) or letter.
7.4 Limitation. Nothing contained in this Article is to be construed as
limiting the extent of any Party's responsibility for payment of damages,
or as limiting, diminishing, or waiving any Party's obligations to
indemnify, defend and save harmless another Party in accordance with this
Agreement.
7.5 Exchange of Information. Unless bound by a duty of confidentiality, each
Party shall promptly provide each other Party by certified or registered
mail, return receipt requested and postage prepaid, to such other Party's
address set forth in Section 7.3, with copies of any accident report(s)
sent by the first Party to any insurance carrier with respect to any
accident or incident arising out of or in any manner connected with this
Agreement.
ARTICLE VIII
COMPLIANCE WITH LAWS AND SAFETY
8.1 The Companies, with respect to the Co-owned Transmission Facilities,
Niagara Mohawk, with respect to the Transmission System, and Producer agree
to comply in all material respects with all applicable federal, state and
local laws, ordinances, rules, regulations, permits, licenses, approvals,
certificates, and requirements thereunder in connection with all activities
performed pursuant to this Agreement, including, but not limited to all
design, environmental, regulatory, engineering, construction, and property
acquisition activities.
8.2 If the Companies or the Producer becomes aware that any requirement
specified in this Agreement is at variance with any governing laws,
ordinances, rules, regulations, permits, licenses, approvals, certificates
and requirements thereunder, it shall promptly notify the other Parties in
writing before incurring any further liability, expense or obligation. The
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 26
FERC Electric Rate Schedule No. [___]
Companies and Producer shall in good faith attempt to reform this Agreement
to comply with the aforementioned laws, ordinances, rules, regulations,
permits, licenses, approvals, or certificates.
8.3 The Companies and the Producer agree that all work performed by either
Party, which might reasonably be expected to affect the other Party, shall
be performed in accordance with all applicable laws, rules, and regulations
pertaining to the safety of persons or property, and Good Utility Practice.
Each Party shall be solely responsible for and shall assume all liability
for the safety and supervision of its own employees, agents,
representatives and subcontractors. All work performed by either Party that
could reasonably be expected to affect the operations of the other Party
shall be performed in accordance with all applicable laws, rules and
regulations pertaining to the safety of persons or property, including,
without limitation, compliance with the safety regulations and standards
adopted under the Occupational Safety and Health Act of 1970 (OSHA) as
amended from time to time, the National Electrical Safety Code (NESC) as
amended from time to time, applicable NRC Requirements and Commitments, and
Good Utility Practice. The Parties shall cause their agents,
representatives and subcontractors to perform their work in accordance with
these standards.
8.4 Environmental Releases by Producer. The Producer shall inform the Companies
first verbally, and then by written notice, of any Release of Hazardous
Substances that impacts or, in the reasonable judgment of the informing
party may impact, the Companies' or Niagara Mohawk's property, business or
operations as soon as possible, but not later than forty-eight (48) hours
after such Release, and shall promptly furnish to the Companies copies of
any reports filed with any governmental agencies addressing such Release.
If a Release of Hazardous Substances onto the Companies' or Niagara
Mohawk's property is caused by the Producer, its employees, agents,
contractors, consultants, invitees or subcontractors, (or if it is
reasonable to believe that such a Release has occurred) the Producer, at
its own expense, shall conduct, or cause to be conducted, sampling, soil
testing, and any other methods of investigation which would disclose the
presence of, and extent of contamination by, any Hazardous Substances which
have been released onto the Companies' or Niagara Mohawk's property and
shall notify the Companies or Niagara Mohawk, as the context may require,
in writing as soon as reasonably practicable after learning of the presence
of any such Hazardous Substances upon the Companies' or Niagara Mohawk's
property. The Producer shall immediately notify the Companies or Niagara
Mohawk, as the context may require, of any type of remediation activities
necessitated by such Release and shall provide the Companies or Niagara
Mohawk, as the context may require, with copies of any correspondence with,
and of any reports filed with, any governmental agency pertaining to such
remediation activities. The Producer shall provide the Companies or Niagara
Mohawk, as the context may require, thirty (30) days written notice prior
to conducting any asbestos or lead abatement activities, and shall promptly
furnish to the Companies or Niagara Mohawk, as the context may require, (i)
copies of any reports filed with any governmental or regulatory agencies
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 27
FERC Electric Rate Schedule No. [___]
pertaining to such abatement activities, (ii) copies of applications for
permits to conduct abatement activities, and (iii) copies of all permits
authorizing abatement activities. The Producer agrees to indemnify, defend,
and save harmless the Companies and Niagara Mohawk, their respective
Affiliates, officers, directors, agents and employees, from and against any
loss, damage, liability (civil or criminal), cost, suit, charge (including
litigation costs and reasonable attorneys' fees), expense or cause of
action for the removal or management of any Hazardous Substances and/or
relating to any damages to any person or property resulting from the
presence of any such Hazardous Substances.
8.5 Environmental Releases by the Companies or Niagara Mohawk. The Companies or
Niagara Mohawk, as the context may require, shall inform the Producer first
verbally, and then by written notice, of any Release of Hazardous
Substances that impacts or, in the reasonable judgment of the informing
party may impact, the Producer's property, business or operations as soon
as possible, but not later than forty-eight (48) hours after such Release,
and shall promptly furnish to the Producer copies of any reports filed with
any governmental agencies addressing such Release. If a Release of
Hazardous Substances onto the Producer's property is caused by the
Companies or Niagara Mohawk, their respective employees, agents,
contractors, consultants, invitees or subcontractors, (or if it is
reasonable to believe that such a Release has occurred) the Companies or
Niagara Mohawk, as the context may require, at their own expense, shall
conduct, or cause to be conducted, sampling, soil testing, and any other
methods of investigation which would disclose the presence of, and extent
of contamination by, any Hazardous Substances which have been released onto
the Producer's property and shall notify the Producer in writing as soon as
reasonably practicable after learning of the presence of any such Hazardous
Substances upon the Producer's property. The Companies or Niagara Mohawk,
as the context may require, shall immediately notify the Producer of any
type of remediation activities necessitated by such Release and shall
provide the Producer with copies of any correspondence with, and of any
reports filed with, any governmental agency pertaining to such remediation
activities. The Companies or Niagara Mohawk, as the context may require,
shall provide the Producer thirty (30) days written notice prior to
conducting any asbestos or lead abatement activities, and shall promptly
furnish to the Producer (i) copies of any reports filed with any
governmental or regulatory agencies pertaining to such abatement
activities, (ii) copies of applications for permits to conduct abatement
activities, and (iii) copies of all permits authorizing abatement
activities. The Companies or Niagara Mohawk, as the context may require,
agree to indemnify, defend, and save harmless the Producer, its Affiliates,
officers, directors, agents and employees, from and against any loss,
damage, liability (civil or criminal), cost, suit, charge (including
litigation costs and reasonable attorneys' fees), expense or cause of
action for the removal or management of any Hazardous Substances and/or
relating to any damages to any person or property resulting from the
presence of any such Hazardous Substances
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 28
FERC Electric Rate Schedule No. [___]
8.6 UFSAR Documentation. The Producer will update common drawings and documents
that are part of its Updated Final Safety Analysis Report ("UFSAR") or from
which figures in the UFSAR are derived on a regular basis and provide those
updated drawings and documents concerning the Companies and Niagara Mohawk
as soon as practicable.
8.7 Information Reporting Obligations. The Producer shall promptly provide to
the Companies and Niagara Mohawk all relevant information, documents, or
data regarding the Generating Facility which may reasonably be expected to
pertain to the safety, security or reliability of the Co-owned Transmission
Facilities and/or the Transmission System. Subject to applicable laws,
rules and regulations, the Companies shall promptly provide to the Producer
all relevant information, documents, or data regarding the operation of the
Companies or the Co-owned Transmission Facilities and/or the Transmission
System which may reasonably be expected to pertain to the safety, security
or reliability of the Generating Facility.
ARTICLE IX
COST PAYMENTS
9.1 The Companies, with respect to the Co-owned Transmission Facilities and
Niagara Mohawk, with respect to the Transmission System, shall invoice
Producer at the start of each calendar quarter in an amount equal to the
Companies' and Niagara Mohawk's actual costs and expenses for which the
Companies and Niagara Mohawk are to be reimbursed under this Agreement.
9.2 The Producer shall pay the Companies, with respect to the Co-owned
Transmission Facilities and Niagara Mohawk, with respect to the
Transmission System or metering, telemetering, and communication medium,
within thirty (30) calendar days of invoicing for all costs and expenses
reasonably incurred by the Companies and/or Niagara Mohawk which are
reimbursable under this Agreement. Such costs shall include, but not be
limited to, capital costs, labor (direct and distributable); labor fringe
benefits and payroll taxes; invoices for material, contractors,
consultants, etc.; employee expenses; storeroom material and handling; any
and all costs and expenses resulting from damage to Niagara Mohawk property
not otherwise covered by insurance; sales and/or use taxes on invoices and
material; transportation; AFUDC; administrative and general expenses (A&G)
at the current rate applied to the total of all costs; and state, county,
local sales and use taxes applied to the total of all costs and
administrative and general and expenses associated with the acquisition,
ownership, operation, repair, A&G, inspection, design review, engineering,
surveying, project management and coordination, testing of electrical
equipment and installation of energy management system remote terminal
units and revenue meters, construction, construction monitoring, financing,
maintenance, environmental and regulatory permitting and licensing of,
taxes and transfer of title of any new facilities and Modifications.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 29
FERC Electric Rate Schedule No. [___]
9.2.1 For any modification reimbursable pursuant to Article V, the
estimated cost of which is in excess of $500,000, the Producer shall
pay the Companies and/or Niagara Mohawk, if and as requested by the
Companies and/or Niagara Mohawk, in advance of the Companies and/or
Niagara Mohawk incurring the costs or expenses in accordance with a
payment schedule mutually agreed to by the parties.
9.2.2 The Producer shall be responsible for all legal fees, costs,
liabilities, judgments, fines, penalties and other sanctions against
the Companies, with respect to the Co-owned Transmission Facilities
and Niagara Mohawk, with respect to the Transmission System, arising
out of the Producer's exercise of eminent domain powers, except to
the extent that such fees, costs, liabilities, judgments, fines,
penalties and other sanctions are attributable to the rightful
exercise of such powers or the Companies' or Niagara Mohawk's gross
negligence or intentional misconduct.
9.2.3 The Producer shall be responsible for any and all federal, state,
local, and foreign taxes levied or assessed upon the Companies, with
respect to the Co-owned Transmission Facilities and Niagara Mohawk,
with respect to the Transmission System, for payments made to the
Companies or Niagara Mohawk by Producer for reimbursable services
provided under this Agreement including, but not limited to, the
following: transfer tax, property tax, federal income tax, and New
York State taxes, including New York income or gross receipts, sales
and use taxes; provided, however, that the Companies or Niagara
Mohawk shall pay any applicable interest or penalty incurred as a
result of the Companies or Niagara Mohawk's respective delay in
paying such taxes or seeking reimbursement from the Producer. If any
form of tax, other than income or excess profits tax, under any
present or future federal, state or other law different from or in
addition to the taxes for which participation in or payment by
Producer is provided herein or elsewhere in this Agreement, is
required to be paid, levied or assessed against or incurred by the
Companies and/or Niagara Mohawk with respect to any property,
property right, commodity, or service involved in, resulting from or
accruing from the Companies or Niagara Mohawk's performance under
this Agreement, which such different or additional tax would not be
required to be paid by the Companies or Niagara Mohawk in the
absence of this Agreement and, with respect to such different or
additional tax, no obligation of Producer to participate or pay
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 30
FERC Electric Rate Schedule No. [___]
would have attached under the provisions of this Agreement elsewhere
than in this subsection, then in such event Producer shall fully
reimburse the Companies and/or Niagara Mohawk for the full amount of
such different or additional tax paid by the Companies and/or
Niagara Mohawk.
9.2.3.1 If the Companies, with respect to the Co-owned Transmission
Facilities and Niagara Mohawk, with respect to the
Transmission System, receives a refund from the taxing
authorities of any amounts paid by Producer, the Companies
and/or Niagara Mohawk shall refund to Producer such amount
refunded the Companies and/or Niagara Mohawk (net of
expenses related to obtaining the refund) within thirty
(30) days of receiving such refund.
9.2.3.2 Notwithstanding the foregoing, Producer, at its own expense,
shall have the right to require the Companies, with respect
to the Co-owned Transmission Facilities and Niagara Mohawk,
with respect to the Transmission System, to seek a Private
Letter Ruling from the Internal Revenue Service on whether
any of the sums paid to the Companies and/or Niagara Mohawk
by Producer under the terms of this Agreement for the
construction of the facilities contemplated herein are
subject to U.S. federal taxation. To the extent that the
Private Letter Ruling concludes that any such sums are
taxable to the Companies and/or Niagara Mohawk, Producer
shall reimburse the Companies and/or Niagara Mohawk for all
such taxes consequently imposed upon the Companies and/or
Niagara Mohawk in accordance with the terms of this
Agreement. Producer shall reimburse the Companies and/or
Niagara Mohawk for all costs, including but not limited to
legal fees, associated with seeking the Private Letter
Ruling.
9.2.4 Increased income tax to the Companies and/or Niagara Mohawk arising
from Producer's payment or reimbursement of tax under the preceding
provisions will be addressed in the following manner. Any net actual
U.S. federal income tax or New York State tax (collectively, for
this Section 9.2.4 "Tax"), if any, arising out of any payment or
reimbursement of any tax by Producer under this Article shall be
reimbursed to the Companies or Niagara Mohawk, as the context
requires. The amount reimbursed to the Companies and/or Niagara
Mohawk under this Section shall consist of (1) the Tax arising under
this Section (the "First Amount"); plus (2) the net actual Tax
imposed on the First Amount (the "Second Amount"); plus (3) the net
actual Tax imposed on the Second Amount (the "Third Amount"); and
plus (4) the net actual Tax imposed on the Third Amount and on each
succeeding amount until the final amount is less than one dollar.
9.3 The Companies and Niagara Mohawk agree to cooperate with the Producer in
attempting to minimize the Producer's costs under this Article, provided
the Producer reimburses the Companies and/or Niagara Mohawk for all costs
incurred by the Companies and/or Niagara Mohawk in connection with such
cooperation, including reasonable attorneys' fees and expenses, and
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 31
FERC Electric Rate Schedule No. [___]
provided further that the Producer shall indemnify, defend, and save
harmless the Companies and Niagara Mohawk, its agents and employees,
against any and all penalties, judgments, fines (civil or criminal), or
other costs that may be imposed by any governmental authority as a result
hereof, but only to the extent that such penalties, judgments, fines, or
other costs are not attributable to the Companies or Niagara Mohawk's
respective gross negligence or intentional misconduct.
9.4 The Companies, with respect to the Co-owned Transmission Facilities and
Niagara Mohawk, with respect to the Transmission System, shall include with
each invoice documentation supporting the costs, expenses, and/or taxes
incurred by the Companies and/or Niagara Mohawk in the previous quarter, or
to be incurred in the next quarter, as provided for in Section 9.2. The
Companies and Niagara Mohawk will provide such documentation from their
standard accounting methods. Within thirty (30) days from date of the
invoice, Producer shall pay the invoice and/or notify the Companies and/or
Niagara Mohawk, as the context may require, that Producer disputes, in
whole or in part, any of the costs, expenses, and/or taxes reflected in the
invoice and shall specify with particularity the reasons for such dispute.
If Producer disputes any invoice or portion thereof, the Producer shall
immediately place into an independent escrow account an amount equal to the
portion of the invoice it disputes. Such amount shall remain in escrow
until the dispute between the Parties is resolved in accordance with
Article XX of this Agreement. If any portion of any invoice the Producer
has not disputed remains unpaid thirty (30) days from the invoice date, the
Companies and/or Niagara Mohawk shall apply to the unpaid balance, and
Producer shall pay, a finance charge at the rate of one and one-half
percent (1.5%) per month, but in no event more than the maximum allowed by
law.
ARTICLE X
NOTICES
10.1 Except as may be otherwise expressly provided herein, all notices, demands
and requests required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by certified or registered
first-class mail (return receipt requested and postage prepaid), facsimile
transmission, or overnight express mail or courier service addressed as
follows:
TO PRODUCER:
Constellation Nuclear, LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Title: President/CEO
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 32
FERC Electric Rate Schedule No. [___]
TO NIAGARA MOHAWK:
Niagara Mohawk Power Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Title: Manager, Transmission &
Delivery Services
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TO NYSEG:
New York State Electric & Gas Corporation
Corporate Drive
Kirkwood Industrial Park
Binghamton, New York 13902-5225
Title: Senior Vice President
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10.1.1 All notices required for billing purposes and invoices under this
Agreement shall be in writing and shall be delivered to the
following address:
TO PRODUCER:
Constellation Nuclear, LLC:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Title: President/CEO
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payments By Wire
------------------
ALLFIRST
Account #: ▇▇▇▇▇▇▇▇
ABA Routing #: ▇▇▇▇▇▇▇▇▇
Credit To: Constellation Nuclear LLC
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 33
FERC Electric Rate Schedule No. [___]
TO NIAGARA MOHAWK:
Niagara Mohawk Power Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Title: Manager, Transmission &
Delivery Services
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payments By Wire
------------------
Citibank New York
Account #: ▇▇▇▇▇▇▇▇
ABA Routing #: ▇▇▇▇▇▇▇▇▇
Credit To: Niagara Mohawk Power Corp.
TO NYSEG:
New York State Electric & Gas Corporation
Corporate Drive
Kirkwood Industrial Park
Binghamton, New York 13902-5225
Title: Senior Vice President
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payments By Wire
------------------
[BANK]
Account #:
ABA Routing #:
Credit To:
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 34
FERC Electric Rate Schedule No. [___]
10.1.2 Timing of notices: If given by electronic transmission (including
telex, facsimile or telecopy), notice shall be deemed given on the
date received and shall be confirmed by a written copy sent by
first class mail. If sent in writing by certified mail, notice
shall be deemed given on the second business day following deposit
in the United States mails, properly addressed, with postage
prepaid. If sent by same-day or overnight delivery service, notice
shall be deemed given on the day of delivery.
10.2 Any Party may change its address for notices by notice to the other in the
manner provided above.
10.3 Notwithstanding Section 10.1, any notice with respect to an Emergency or
other occurrence requiring prompt attention shall be communicated in an
expedited manner and may be made by telephone provided that such notice is
confirmed in writing promptly thereafter.
10.4 Operating Committee.
10.4.1 Producer and each of the Companies shall each appoint one
representative and one alternate to an Operating Committee ("the
Committee"). Each Party shall notify the other Parties of its
appointment in writing. Such appointments may be changed at any
time by similar notice. The Committee shall meet as necessary, but
not less than once each calendar year, to carry out the duties set
forth herein. The Committee shall hold a meeting within ten (10)
calendar days of the request of either Party, at a time and place
agreed upon by the representatives. Each representative and
alternate shall be a responsible person working in the day-to-day
operations of their respective electrical facilities. The Committee
shall represent the Parties in all matters arising under this
Agreement which may be delegated to it by mutual agreement of the
Parties. The duties of the Committee shall include, but are not
limited, to the following:
a. Establish and maintain testing, control and operation
procedures, including those pertaining to communication and
information transfers between the Producer and the
Companies.
b. Establish data requirements in accordance with the terms and
conditions of this Agreement.
c. Review data acquisition equipment, protective equipment, and
any other equipment or software requirements, standards, and
procedures.
d. Review forecast maintenance and availability schedules of
Companies' and Producer's facilities.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 35
FERC Electric Rate Schedule No. [___]
e. Ensure that appropriate information is being provided by
each Party regarding equipment availability.
f. Perform such other duties as specifically assigned under
this Agreement or as may be conferred upon it by mutual
agreement of the Parties.
10.4.2 Each Party shall cooperate in providing to the Committee all
information required for the performance of the Committee's duties.
All decisions and agreements, if any, made by the Committee shall
be evidenced in writing. The Committee shall have no power to amend
or waive the provisions of this Agreement.
10.4.3 Nothing in this Section shall be construed to require the amendment
or modification of, or limitation in, the applicability of
standards, practices and/or procedures of the Producer or the
Companies.
ARTICLE XI
TERM AND TERMINATION
11.1 This Agreement shall become effective upon execution by the Parties and
shall continue in effect until a mutually agreeable termination date not to
exceed the date on which the Producer no longer requires Off-site Power
Service for the Generating Facility, subject to required regulatory
authorizations required for termination, except that the obligations of the
Companies to provide Interconnection Service and any other services
described herein shall only become effective on the date of Closing from
the moment that the NMP-2 APA is consummated. Notwithstanding any other
provision of this Agreement, this Agreement shall become ineffective and
shall terminate in the event the NMP-2 APA terminates.
11.2 The execution of the NMP-2 APA, as defined in this Agreement, shall be a
condition precedent to this Agreement taking effect.
11.3 This Agreement shall not merge with, or be terminated or superseded by, any
future agreement between the Parties that does not specifically so provide.
11.4 Breach, Cure and Default.
11.4.1 Breach. A breach of this Agreement shall occur upon the failure by a
Party to perform or observe any material term or condition of this
Agreement as described in Section 11.4.2.
11.4.2 Events of Breach. A breach of this Agreement shall include: (a) the
failure to pay any amount when due, unless such amount is disputed
in compliance with Section 9.4 of this Agreement; (b) the failure to
comply with any material term or condition of this Agreement,
including any breach of a representation, warranty or covenant made
in this Agreement; (c) the appointment of a receiver, liquidator or
trustee for a Party, or of any property of a Party, if such
receiver, liquidator or trustee is not discharged within sixty (60)
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 36
FERC Electric Rate Schedule No. [___]
days; (d) the entry of a decree adjudicating a Party bankrupt or
insolvent if such decree is continued undischarged and unstayed for
a period of sixty (60) days; (e) the filing by a Party of a
voluntary petition in bankruptcy under any provision of any federal
or state bankruptcy law; and (f) failure of the Producer to permit
access to the Revenue Meters in accordance with Section 6.1.8.
11.4.3 Cure and Default. Upon a Party's breach of its obligations under
this Agreement, except for breaches described in (c), (d), (e), and
(f) of Section 11.4.2, any other Party (hereinafter the
"Non-Breaching Party") shall give such Party in breach (the
"Breaching Party") a written notice specifying the nature of the
breach, describing the breach in reasonable detail, and demanding
that the Breaching Party cure such breach. The Breaching Party shall
be deemed to be in default of its obligations under this Agreement
if (i) the breach is such that it can be cured within thirty (30)
days and the Breaching Party fails to cure the breach within thirty
(30) days after its receipt of such notice, (ii) the breach is such
that it cannot be cured within thirty (30) days, and the Breaching
Party does not in good faith commence within thirty (30) days all
such steps as are commercially reasonable, necessary, and/or
appropriate to cure such breach and thereafter diligently pursue
such steps to completion, or (iii) the breach cannot be cured within
any commercially reasonable period of time.
11.4.4 Right to Compel Performance. Upon the occurrence of any event of
default, the non-defaulting Party shall be entitled to (i) commence
an action to require the defaulting Party to remedy such default and
specifically perform its obligations hereunder in accordance with
the terms and conditions hereof, and (ii) exercise such other rights
and remedies as it may have in equity, at law or under this
Agreement.
11.4.5 Waiver. No provision of this Agreement may be waived except by
mutual agreement of the Parties as expressed in writing and executed
by each Party. Any waiver that is not in writing and executed by
each Party shall be null and void from its inception. No express
waiver in any specific instance as provided in a required writing
shall be construed as a waiver in future instances unless
specifically so provided in the required writing. No express waiver
of any specific default shall be deemed a waiver of any other
default whether or not similar to the default waived, or a
continuing waiver of any other right or default by a Party. The
failure of any Party to insist in any one or more instances upon the
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 37
FERC Electric Rate Schedule No. [___]
strict performance of any of the provisions of this Agreement, or to
exercise any right herein, shall not be construed as a waiver or
relinquishment for the future of such strict performance of such
provision or the exercise of such right. Delay by any Party in
enforcing its rights under this Agreement shall not be deemed a
waiver of such rights.
11.5 Subject to the limitations set forth in Section 11.8, in the event of
default by the Producer, the Companies may only terminate this Agreement
upon the later of the following: (a) their giving written notice of
termination to the Producer, the NRC and any other regulatory agency with
jurisdiction over the operations of the Generation Facility; (b) the filing
at FERC of a notice of termination for the Agreement, which filing must be
accepted and approved by FERC; and (c) the receipt of applicable regulatory
approvals for the termination of the Agreement.
11.6 Termination of this Agreement shall not relieve Producer, the Companies or
Niagara Mohawk of any of their liabilities and obligations arising
hereunder prior to the date termination becomes effective, and Producer,
the Companies or Niagara Mohawk may take whatever judicial or
administrative actions as appear necessary or desirable to enforce their
rights or remedies hereunder. Unless otherwise provided herein, the rights
or remedies specified herein are not exclusive and shall be in addition to
all other rights and remedies available to any Party, either at law or in
equity, for default or breach of any provision of this Agreement.
11.7 In the event of termination of this Agreement, the Companies may at their
option physically disconnect the Generating Facilities from the Co-owned
Transmission Facilities in accordance with Good Utility Practice and
Niagara Mohawk may at its option physically disconnect the Generating
Facility from the Transmission System in accordance with Good Utility
Practice.
11.8 Where a default is disputed by the Producer in good faith, and the basis
for the dispute is specified in writing, no termination of this Agreement
may occur absent a final, binding and nonappealable decision by either an
arbitrator or a court of competent authority having jurisdiction making a
determination of said default and upon the satisfaction of all the
conditions stated in Section 11.5 above. Where the default has occurred as
a result of a billing dispute, the Producer shall (i) continue to make all
payments not in dispute and (ii) pay into an independent escrow account the
portion of the invoice in dispute, pending resolution of such dispute.
ARTICLE XII
FORCE MAJEURE
12.1 A Party to this Agreement shall not be considered to be in default or
breach hereunder, and shall be excused from performance hereunder, if and
to the extent that it shall be delayed in or prevented from performing or
carrying out any provision of this Agreement by reason of force majeure,
which for the purposes of this Agreement shall mean flood, ice, lightning
strikes, earthquake, fire, epidemic, war, invasion, riot, civil
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 38
FERC Electric Rate Schedule No. [___]
disturbance, sabotage, explosion, insurrection, military or usurped power,
strikes, stoppage of labor, labor dispute, failure of contractors or
suppliers of material, action of any court or governmental authority, or
any civil or military authority de facto or de jure, change in law, act of
God or the public enemy, or any other event or cause beyond its reasonable
control; provided, however, that a Party to this Agreement may not claim
force majeure for any delay or failure to perform or carry out any
provision of this Agreement to the extent that it has been negligent or
engaged in intentional misconduct and such negligence or misconduct
contributed to its delay or failure to perform or carry out its duties and
obligations under this Agreement. Mere economic hardship of a Party shall
not constitute force majeure.
12.2 The Party claiming force majeure shall give notice to the other
Parties of the occurrence of force majeure no later than ten (10) business days
after such occurrence and shall use due diligence to resume performance and/or
the provision of service hereunder as soon as practicable.
ARTICLE XIII
INDEMNIFICATION
13.1 Indemnification. The Companies or Niagara Mohawk, as the context may
require, shall indemnify, defend and hold harmless the Producer, its
directors, officers, employees, agents and Affiliates, and the Producer
shall indemnify, defend and hold harmless the Companies or Niagara Mohawk,
as the context may require, or its directors, officers, employees, agents
and Affiliates, from and against all liabilities, expenses (including
litigation costs and reasonable attorneys' fees), damages, losses,
penalties, judgments, fines, claims, demands, actions, and proceedings of
any nature whatsoever for events that arise out of or are in any manner
connected with this Agreement and (i) occur or arise on the indemnifying
Party's side of the Delivery Points, the Off-site Power Service Points,
and/or any property owned by the indemnifying party, except to the extent
that such events are attributable to the negligence or willful misconduct
of the Party seeking to be indemnified, or (ii) are attributable to the
negligence or willful misconduct of the Party from whom indemnity is being
sought.
13.2 Indemnification Procedures. If a Party to this Agreement (the "Indemnified
Party") intends to seek indemnification under this Article from any other
Party (the "Indemnifying Party"), the Indemnified Party shall give the
Indemnifying Party written notice of the Indemnified Party's
indemnification claim within ninety (90) days of the day on which the
manager of claims or counsel of the Indemnified Party first has actual
knowledge of facts giving rise to such indemnification claim. Such notice
shall describe the indemnification claim in reasonable detail, and shall
indicate the amount (estimated if necessary) of the loss that has been, or
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 39
FERC Electric Rate Schedule No. [___]
may be sustained by, the Indemnified Party. The failure to give such notice
shall relieve the Indemnifying Party of its obligation under this Article
to the extent that the Indemnifying Party is actually and materially
prejudiced as a result of the failure to give notice.
13.3 Settlement. Neither the Indemnified Party, nor the Indemnifying Party, may
settle or compromise any claim against the Indemnified Party without the
prior written consent of the other Party; provided, however, that consent
shall not be unreasonably withheld, conditioned or delayed.
13.4 Notice. Promptly after receipt by the Indemnified Party of any claim
against it or of notice of the commencement of any action, administrative
or legal proceeding, or investigation as to which the indemnities provided
for in this Article may apply, the Indemnified Party shall give the
Indemnifying Party written notice of such fact. The Indemnifying Party
shall assume the defense thereof with counsel designated by such Party and
satisfactory to the Indemnified Party in the Indemnified Party's reasonable
discretion; provided, however, that if the defendants in any such action,
proceeding or investigation include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party shall have reasonably
concluded that there may be legal defenses available to it which are
different from or additional to, or inconsistent with, those available to
the Indemnifying Party, the Indemnified Party shall have the right to
select and employ (at the expense of the Indemnifying Party) separate
counsel to participate in the defense of such action, proceeding or
investigation on behalf of the Indemnified Party.
13.5 Right to Assume Defense. Should the Indemnified Party be entitled to
indemnification under this Article as a result of a claim by a third party,
and the Indemnifying Party fails to assume the defense of such third-party
claim, the Indemnified Party shall, at the expense of the Indemnifying
Party, contest (or, with the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld, conditioned or
delayed) or settle such third-party claim, provided that no such contest
need be made and settlement or full payment of any such third-party claim
may be made without consent of the Indemnifying Party (with the
Indemnifying Party remaining obligated to indemnify the Indemnified Party
under this Article), if, in the written opinion of an independent counsel
jointly chosen by the Indemnified and Indemnifying Parties, such claim is
meritorious and the amount of the settlement or full payment is reasonable.
13.6 Enforcement and Other Costs. In all cases, the Indemnifying Party shall be
liable to the Indemnified Party for all costs (including litigation costs
and reasonable attorneys' fees) incurred by the Indemnified Party at any
time in the course of the Indemnified Party's asserting, enforcing or
giving effect to its right to indemnification under this Article. For
purposes of this Agreement, the phrase "litigation costs and reasonable
attorneys' fees" shall include litigation costs and reasonable attorneys'
fees incurred by an Indemnified Party with respect to an action or
proceeding (i) between the Indemnified Party and the Indemnifying Party or
(ii) between the Indemnified Party and a third party.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 40
FERC Electric Rate Schedule No. [___]
13.7 Indemnification Amount. In the event that a Party is obligated to indemnify
another Party under this Article, the amount owing to the Indemnified Party
shall be the amount of the Indemnified Party's actual out-of-pocket loss
net of any insurance proceeds received by, or other recovery by, the
Indemnified Party.
13.8 Employees. Each Party shall comply with applicable workers' compensation
laws, and the indemnities of this Article shall be fully applicable to all
claims and payments arising under such laws.
13.9 Survival. The indemnification obligations of each Party under this Article
shall continue in full force and effect regardless of whether this
Agreement has either expired or been terminated, canceled, suspended or
completed, but only with respect to claims for indemnification based on
acts or events that occurred prior to such expiration, termination,
cancellation, suspension or completion.
ARTICLE XIV
RELATIONSHIP OF THE PARTIES
14.1 Nothing contained in this Agreement shall be construed or deemed to cause,
create, constitute, give effect to, or otherwise recognize Producer and the
entities comprising the Companies to be partners, joint venturers, employer
and employee, principal and agent, or any other business association, with
respect to any matter.
14.2 Except with the consent of all Parties, no Party shall have any authority
to create or assume in the other Party's name or on its behalf any
obligation, express or implied, or to act or purport to act as the other
Party's agent or legally empowered representative for any purpose
whatsoever.
14.3 No Party shall be liable to any third party in any way for any engagement,
obligation, commitment, contract, representation or for any negligent act
or omission of the other Party, except as expressly provided for herein.
14.4 The rights and obligations of the Parties shall be limited to those
expressly set forth herein.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 41
FERC Electric Rate Schedule No. [___]
ARTICLE XV
THIRD PARTY BENEFICIARY/ASSIGNMENT
15.1 To the extent it has an ownership interest in NMP-2, the Long Island
Lighting Company (d/b/a/ LIPA) ("LIPA") shall be a third-party beneficiary
of this Agreement. Other than LIPA, no other person shall have any rights
or interests, direct or indirect, in this Agreement, except the Parties,
their successors and permitted assigns. The Parties specifically disclaim
any intent to create any rights in any person as a third-party beneficiary
to this Agreement except as stated in this Section 15.1.
15.2 Assignment. Except as provided for in this Section 15.2, no Party may
assign this Agreement or any of its rights, interests, or obligations
hereunder without the prior written consent of the other Parties, which
consent shall not be unreasonably withheld.
15.2.1 Producer Financing. Producer may, upon prior written notice to the
Companies, assign, transfer, pledge, or otherwise dispose of its
rights and interests under this Agreement to any lender or
financial institution in connection with the financing or
refinancing of the Generating Facility or property acquisition
therefor.
15.2.2 Companies Financing. The Companies, with respect to the Co-owned
Transmission Facilities and Niagara Mohawk, with respect to the
Transmission System may, upon prior written notice to the Producer,
assign, transfer, pledge, or otherwise dispose of the Companies or
Niagara Mohawk's rights and interests under this Agreement to any
lender or financial institution in connection with the financing or
refinancing of the Co-owned Transmission Facilities or Transmission
System or property acquisition therefor.
15.2.3 NYSEG Assignment. In connection with a Niagara Mohawk and NYSEG
agreement with respect to a transfer of the Co-owned Transmission
facilities, NYSEG, upon prior written notice to the Producer and
LIPA, may assign its rights, title and obligations under this
Agreement to Niagara Mohawk without the consent of the Producer or
LIPA, and such assignment shall release NYSEG from liability under
this Agreement from and after the date of such assignment provided
all NYSEG liabilities from and after the date of the assignment
under this Agreement are expressly assumed by the assignee.
15.2.4 Producer Assignment. Producer shall not have the right to assign
this Agreement without Customer's prior written consent, provided
---------
that PRODUCER or its permitted assignee, without Customer's
consent, may assign, transfer, pledge or otherwise dispose of
(absolutely or as security) its rights and interests hereunder to
an Affiliate (an "Assignee Entity") of PRODUCER at least 68% of the
equity securities of which are owned by Producer; provided,
--------
however, (i) any minority owner of the Assignee Entity shall be
-------
that entity contemplated to become an equity owner of Producer's
affiliated merchant energy group as set forth in that certain press
release issued by Constellation Energy Group on October 23, 2000,
(ii) no minority owner of the Assignee Entity may have any control
or management or operational rights or role with respect to the
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 42
FERC Electric Rate Schedule No. [___]
Assignee Entity , and (iii) no such assignment shall relieve or
discharge Producer from any of its obligations hereunder or shall
be made if it would reasonably be expected to prevent or materially
impede, interfere with or delay the transactions contemplated by
this Agreement or materially increase the costs of the transactions
contemplated by this AgreementThe Parties hereby acknowledge and
agree that the continuing obligation provisions of Section 15.5
shall not apply to any assignment made pursuant to this Section
15.2.4, but rather the provisions of clause (iii) of this Section
15.2.4 shall apply to any such assignment.
15.3 Assignment Costs. Each Party agrees to reimburse the other Parties for any
costs and expenses (including reasonable attorneys' fees) reasonably
incurred in connection with the other Parties' review, execution and
delivery of instruments, agreements or documents necessary in connection
with the assigning Party's assignment, transfer, sale or other disposition
of this Agreement or any interest in the Co-owned Transmission Facilities
or Transmission System.
15.4 Violations. Any assignment in violation of Article XV may, at the
non-assigning Party's option, be deemed null and void from its inception.
15.5 Continuing Obligations. Any authorized assignment shall not relieve the
assigning Party of the responsibility of full compliance with the
requirements of this Agreement, unless the other Party consents and the
assignee agrees in writing to be bound by all of the obligations and duties
of the assigning Party provided for in this Agreement and has provided
written assurances to the other Party of continued performance and
protection against liability upon assignment.
15.6 Indemnity. Any purported assignment contrary to the provisions of this
Agreement shall make the assigning Party the indemnitor of the other
Parties and their successors against any liabilities and costs, including
attorneys' fees as to which the assigning Party's transferee fails to
indemnify, defend, and hold harmless the other Parties, their agents,
employees and their successors, from and against any loss, damage,
liability, cost, suit, charge, expense (including reasonable attorneys'
fees) or cause of action, incurred by the other Parties as a result of the
assignment or as a result of any dispute between the assigning Party and
its transferees, or between any subsequent transferees, that arise from or
relates to any assignment by the assigning Party.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 43
FERC Electric Rate Schedule No. [___]
15.7 Inurement. This Agreement shall bind and inure to the benefit of the
Parties to this Agreement, their successors and permitted assigns.
ARTICLE XVI
APPROVAL
16.1 The Companies shall file this Agreement with the appropriate regulatory
authorities. If any such regulatory body materially modifies the terms and
conditions of this Agreement and such modification(s) materially affect the
benefits flowing to one or more of the Parties, the Parties agree to
attempt in good faith to negotiate an amendment or amendments to this
Agreement or take other appropriate action(s) so as to put each Party in
effectively the same position in which the Parties would have been had such
modification not been made. In the event that, within sixty (60) days or
some other time period mutually agreed upon by the Parties after such
modification has been made, the Parties are unable to reach agreement as to
what, if any, amendments are necessary and fail to take other appropriate
action to put each Party in effectively the same position in which the
Parties would have been had such modification not been made, then any Party
materially affected by the modification shall have the right to submit the
matter for resolution pursuant to the dispute resolution procedures set
forth in Article XX of this Agreement.
ARTICLE XVII
WAIVER
17.1 No provision of this Agreement may be waived except by mutual agreement of
the Parties as expressed in writing and signed by all Parties.
17.2 Any waiver that is not in writing and signed by all Parties shall be null
and void from its inception.
17.3 No express waiver in any specific instance as provided in a required
writing shall be construed as a waiver of future instances unless
specifically so provided in the required writing.
17.4 No express waiver of any specific default shall be deemed a waiver of any
other default whether or not similar to the default waived, or a continuing
waiver of any other right or default by a Party.
17.5 The failure of a Party to insist in any one or more instances upon the
strict performance of any of the provisions of this Agreement, or to
exercise any right herein, shall not be construed as a waiver or
relinquishment for the future of such strict performance of such provision
or the exercise of such right.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 44
FERC Electric Rate Schedule No. [___]
ARTICLE XVIII
AMENDMENT AND MODIFICATION
18.1 This Agreement may be amended or modified only if the amendment or
modification is in writing and executed by all Parties. Any amendment or
modification that is not in writing and signed by all Parties shall be null
and void from its inception.
18.2 No express amendment or modification in any specific instance as provided
herein shall be construed as an amendment or modification of future
instances, unless specifically so provided in the required writing.
18.3 Nothing in this Agreement shall be construed as affecting in any way the
right a Party to this Agreement to unilaterally make application to FERC
for a change in rates, terms and conditions, charges, classifications of
service, rule or regulation under Section 205 or Section 206, as
applicable, of the Federal Power Act and pursuant to FERC's rules and
regulations promulgated thereunder. Notwithstanding the foregoing, the
Parties shall, within ninety (90) days after each ten (10) year period this
Agreement has been in effect, review this Agreement jointly and in good
faith assess whether any modification is warranted.
ARTICLE XIX
GOVERNING LAW
19.1 This Agreement and the rights and obligations of the Parties to this
Agreement shall be governed by and construed in accordance with the law of
the State of New York, without giving effect to the conflict of laws
principles thereof.
19.2 The Parties agree to submit to the jurisdiction of the courts in the State
of New York for the purposes of interpretation and enforcement of this
Agreement.
19.3 The Parties waive personal service by manual delivery and agree that
service of process on a Party in any action concerning or arising out of
this Agreement may be made by registered or certified mail, return receipt
requested, delivered to the Party's address as set forth in Section 10.1 of
this Agreement.
ARTICLE XX
DISPUTE RESOLUTION
20.1 Should a claim or dispute among the Parties arise under this Agreement, the
Parties shall continue, in good faith, to perform their respective
obligations hereunder. Notice of any claim or dispute that any Party may
have against another Party, arising out of the Agreement shall be submitted
in writing to the other Parties in a manner that clearly identifies the
nature of the claim or dispute and requests that the Parties engage in
negotiations to resolve the claim or dispute.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 45
FERC Electric Rate Schedule No. [___]
20.2 Upon receipt of the notice of claim or dispute under Section 20.1, the
Parties shall use Commercially Reasonable Efforts to resolve any such
dispute without resorting to judicial resolution, through good faith
negotiations between representatives with authority to resolve or settle
the claim or dispute. The Parties agree to keep confidential any documents
or materials exchanged and/or confidential information revealed in
furtherance of resolving or settling the claim or dispute under Article XX
of this Agreement and that such documents, materials, or information shall
be considered confidential settlement information and that, pursuant to
Rule 408 of the Federal Rules of Evidence and parallel doctrines of state
law, shall not be admissible as evidence in any subsequent judicial or
regulatory proceeding.
20.3 If the dispute remains unresolved for more than sixty (60) days after
receipt of the notice of claim or dispute under Section 20.1, any Party may
submit the dispute to binding arbitration in New York, NY by three neutral
arbitrators under the Commercial Arbitration Rules of the American
Arbitration Association.
20.4 Only the Parties hereto and their designated representatives shall be
permitted to participate in any arbitration initiated pursuant to this
Agreement. The arbitration process shall be concluded not later than six
(6) months after the date that it is initiated. The award of the
arbitrators shall be accompanied by a reasoned opinion if requested by
either Party. The award rendered in such a proceeding shall be final. The
Parties shall keep the award, and any opinion issued by the arbitrators,
confidential unless the Parties agree otherwise. Any award of amounts due
shall include interest accrued until the date paid. Judgment may be entered
upon the arbitration opinion and award in any court having jurisdiction.
20.5 The procedures for the resolution of disputes set forth herein shall be the
sole and exclusive procedures for the resolution of disputes. Each Party is
required to continue to perform its obligations under this Agreement
pending final resolution of a dispute. All negotiations pursuant to these
procedures for the resolution of disputes will be confidential, and shall
be treated as compromise and settlement negotiations for purposes of the
Federal Rules of Evidence and State Rules of Evidence and similarly
applicable rules or regulations of any state or federal regulatory agency
with jurisdiction over a Party.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 46
FERC Electric Rate Schedule No. [___]
ARTICLE XXI
LIMITATION OF LIABILITY
21.1 Liability. With the exception of indemnification under the provisions of
Article 13 for claims asserted against an indemnified Party by a third
party under no circumstances shall the Companies, Niagara Mohawk, or the
Producer be liable to each other, their respective directors, officers,
employees, agents and Affiliates, as the context may require, for
consequential, incidental, punitive, special, exemplary, indirect, treble
or multiple damages of any kind (including attorneys' fees, litigation
costs, losses or damages caused by reason of the unavailability of the
Generating Facility, plant shutdowns or service interruptions, losses of
use, profits or revenue, inventory or use charges, costs of purchased or
replacement power, interest charges or costs of capital) arising out of or
in any manner connected with this Agreement, including any such damages
which are based upon causes of action for breach of contract, tort
(including negligence and misrepresentation), breach of warranty or strict
liability; provided, however, that: (i) in the event of curtailments or
interruptions of deliveries of Electricity over the Co-owned Transmission
Facilities due to the Companies' gross negligence or intentional
misconduct, the Companies may be liable to the Producer for lost profits
directly resulting from such curtailment or interruption; (ii) in the event
of curtailments or interruptions of deliveries of Electricity over the
Transmission System due to Niagara Mohawk's gross negligence or intentional
misconduct, Niagara Mohawk may be liable to the Producer for lost profits
directly resulting from such curtailment or interruption; and/or (iii) in
the event of curtailments or interruptions of deliveries of Electricity to
the Co-owned Transmission Facilities or the Transmission System due to the
Producer's gross negligence or intentional misconduct, the Producer may be
liable to the Companies, with respect to the Co-owned Transmission
Facilities and/or Niagara Mohawk, with respect to the Transmission System
for lost profits directly resulting from such curtailment or interruption.
Unless otherwise provided in this Agreement, this provision shall apply
regardless of any remedy otherwise available at law or in equity and which
is not otherwise excluded by this Agreement.
21.2 Third-Party Claims Against the Producer. Notwithstanding the provisions of
this Article as they may apply with respect to an indemnifying Party's
responsibility for claims asserted against an indemnified Party by a
third-party, and except where such claims arise from gross negligence or
intentional misconduct on the part of the Companies or their agents or
representatives, neither the Companies, nor their directors, officers,
employees, agents and Affiliates, shall be liable to the Producer, its
directors, officers, employees, agents or Affiliates, for third-party
claims, actions or causes of action for incidental, punitive, special,
exemplary, indirect, treble, multiple or consequential damages of any kind
(including attorneys' fees, litigation costs, losses or damages caused by
reason of the unavailability of the Generating Facility, plant shutdowns or
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 47
FERC Electric Rate Schedule No. [___]
service interruptions, losses of use, profits or revenue, inventory or use
charges, costs of purchased or replacement power, interest charges or costs
of capital) resulting from or related to curtailments or interruptions of
deliveries of Electricity over the Co-owned Transmission Facilities or the
Transmission System, including any such damages which are based upon causes
of action for breach of contract, tort (including negligence and
misrepresentation), breach of warranty or strict liability.
21.3 Third-Party Claims Against the Companies. Notwithstanding the provisions of
this Article as they may apply with respect to an indemnifying Party's
responsibility for claims asserted against an indemnified Party by a
third-party, and except where such claims arise from gross negligence or
intentional misconduct on the part of the Producer or its agents or
representatives, neither the Producer, nor its directors, officers,
employees, agents and Affiliates, shall be liable to the Companies, their
directors, officers, employees, agents or Affiliates, for third-party
claims, actions or causes of action for incidental, punitive, special,
exemplary, indirect, treble, multiple or consequential damages of any kind
(including attorneys' fees, litigation costs, losses or damages caused by
reason of the unavailability of the Co-owned Transmission Facilities or the
Transmission System, plant shutdowns or service interruptions, losses of
use, profits or revenue, inventory or use charges, costs of purchased or
replacement power, interest charges or costs of capital) resulting from or
related to curtailments or interruptions of deliveries of Electricity from
the Generating Facility, including any such damages which are based upon
causes of action for breach of contract, tort (including negligence and
misrepresentation), breach of warranty or strict liability.
21.4 Survival. The provisions of this Article shall apply and shall survive
termination, cancellation, suspension, completion or expiration of this
Agreement.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 48
FERC Electric Rate Schedule No. [___]
ARTICLE XXII
SEVERABILITY
22.1 If any term of this Agreement, or the interpretation or application of any
term or provision to any prior circumstance, is held to be unenforceable,
illegal, or invalid by any governmental agency or court of competent
jurisdiction, the remainder of this Agreement, or the interpretation or
application of all other terms or provisions to persons or circumstances
other than those that are unenforceable, illegal, or invalid, shall not be
affected thereby and each term and provision shall be valid and may be
enforced to the fullest extent permitted by law.
ARTICLE XXIII
HEADINGS
23.1 The headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any
other purpose or limit or be used as an aid in construing the provisions of
this Agreement.
ARTICLE XXIV
INTEGRATION/MERGER/SURVIVABILITY
24.1 This Agreement sets forth the entire understanding and agreement of the
Parties as to the subject matter of this Agreement. This Agreement merges
and supersedes all prior agreements, commitments, representations, writings
and discussions between the Parties with respect to the subject matter of
this Agreement.
ARTICLE XXV
COMPLIANCE WITH GOOD UTILITY PRACTICE
25.1 The Parties shall comply with Good Utility Practice.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 49
FERC Electric Rate Schedule No. [___]
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be
executed as of the day and year first above written.
FOR THE PRODUCER:
-------------------
CONSTELLATION NUCLEAR, LLC
______________________
______________________
FOR NIAGARA MOHAWK:
--------------------
NIAGARA MOHAWK POWER CORPORATION
______________________
______________________
FOR NYSEG:
-----------
NEW YORK STATE ELECTRIC & GAS CORPORATION
______________________
______________________
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 50
FERC Electric Rate Schedule No. [___]
[GRAPHIC OMITED]
[Nine Mile Point Stations Interconnection Diagrams]
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 51
FERC Electric Rate Schedule No. [___]
[GRAPHIC OMITED]
[Nine Mile Point Stations Interconnection Diagrams]
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 52
FERC Electric Rate Schedule No. [___]
[GRAPHIC OMITED]
[Nine Mile Point Stations Interconnection Diagrams]
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 53
FERC Electric Rate Schedule No. [___]
SCHEDULE B
JOINT USE FACILITIES
OFFSITE SOURCES 115KV
- Disconnect switch 51 located in Scriba Substation.
- Circuit breaker R50 located in Scriba Substation.
- Disconnect switch 53 located in Scriba Substation.
- Disconnect switch 33 located in Scriba Substation.
- Disconnect switch 31 located in Scriba Substation.
- 115kV "C" Bus located in Scriba Substation.
- Three 115kV potential transformers collectively denominated J9993 located
in Scriba Substation.
- Three surge arresters located on "C" Bus located in Scriba Substation.
- Disconnect switch 128 located in Scriba Substation.
- Circuit breaker R115 located in Scriba Substation.
- Disconnect switch 118 located in Scriba Substation.
- Transformer #1, 345/115kV, 224MVA and tertiary fuse denominated J5058
located in Scriba Substation.
- Disconnect switch 63 located in Scriba Substation.
- Circuit breaker R60 located in Scriba Substation.
- Disconnect switch 61 located in Scriba Substation.
- Disconnect switch 21 located in Scriba Substation.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 54
FERC Electric Rate Schedule No. [___]
- 115kV "D" Bus located in Scriba Substation.
- Three 115kV potential transformers collectively denominated J9994 located
in Scriba Substation.
- Three surge arresters located on "D" Bus located in Scriba Substation.
- Disconnect switch 228 located in Scriba Substation.
- Circuit breaker R225 located in Scriba Substation.
- Disconnect switch 218 located in Scriba Substation.
- Transformer #2, 345/115kV, 224MVA and tertiary fuse denominated J5128
located in Scriba Substation.
- 115kV duplex switchboards #1 and #2 located in Control House #1 and 115kV
duplex switchboards #3 and #4 located in Control House #2 all located in
Scriba Substation.
- Associated grading, grounding, conduit, foundations, structures, conductor,
junction boxes, cable and miscellaneous equipment located in Scriba
Station.
#23 LINE POSITION
- Ground switch 23G located in Scriba Substation.
- Disconnect switch 233 located in Scriba Substation.
- Three capacitance coupling voltage transformers collectively denominated
J8923 located in Scriba Substation.
- Disconnect switch 232 located in Scriba Substation.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 55
FERC Electric Rate Schedule No. [___]
- Circuit breaker R230 located in Scriba Substation.
- Disconnect switch 231 located in Scriba Substation.
- Disconnect switch 926 located in Scriba Substation.
- Circuit breaker R925 located in Scriba Substation.
- Disconnect switch 927 located in Scriba Substation.
- Disconnect switch 991 located in Scriba Substation.
- Duplex switchboard panels 5 and 6 in 345kV switchboard #1 and duplex
switchboard panel 3 in 345kV switchboard #2 located in Control House #1;
and switchboard panels 3, 4 and 5 in 345kV switchboard #3 and panel 5F in
345kV switchboard #4 located in Control House #2 all located in Scriba
Substation.
- Associated grading, grounding, conduit, foundations, structures, conductor,
junction boxes, cable and miscellaneous equipment located in Scriba
Station.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 56
FERC Electric Rate Schedule No. [___]
SCHEDULE C
INSURANCE REQUIREMENTS
From the effective date of this Agreement, through the termination of all
of the easements and other rights granted under this Agreement, or longer where
specified below, each Party shall provide and maintain, at its own expense,
insurance policies, issued by reputable insurance companies with an A. M. Best
rating of at least B+, which meet or exceed the following requirements:
- POLICY OF WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE, with
respect to all work and activities performed with respect to this Agreement
by or on behalf of the Party, as required by the State of New York.
Coverage shall include the ▇▇▇▇▇▇▇▇▇ and Harbor Workers' Compensation Act
and the ▇▇▇▇▇ Act;
- POLICY OF GENERAL LIABILITY INSURANCE, with respect to all work and
activities performed with respect to this Agreement by or on behalf of the
Party, with MINIMUM limits of:
-------
Bodily Injury - $1,000,000.00 per Occurrence
Property Damage - $1,000,000.00 per Occurrence.
This policy shall include Contractual Liability and Products/Completed
Operations coverage. If the Products/Completed Operations coverage is
written on a claims-made basis, the coverage shall be maintained
continuously for at least two years after termination of all of the
easements and other rights granted under this Agreement.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 57
FERC Electric Rate Schedule No. [___]
- AUTOMOBILE LIABILITY INSURANCE, covering owned, non-owned and hired
vehicles used in connection with work and activities performed with respect
to this Agreement by or on behalf of the Party, with MINIMUM limits of:
------
Bodily Injury & Property Damage - $1,000,000.00 per occurrence.
- UMBRELLA OR EXCESS LIABILITY INSURANCE, with a MINIMUM limit of
-------
$10,000,000.00.
- WATERCRAFT LIABILITY INSURANCE, covering all work and activities performed
with respect to this Agreement by or on behalf of the Party and involving
the use of watercraft, with MINIMUM limits of:
-------
Bodily Injury - $1,000,000.00 per occurrence
Property Damage - $1,000,000.00 per occurrence.
- AIRCRAFT LIABILITY INSURANCE, covering all work and activities performed
with respect to this Agreement by or on behalf of the Party and involving
the use of aircraft, with MINIMUM limits of:
-------
Bodily Injury & Property Damage - $1,000,000.00 per occurrence.
- ALL RISK PROPERTY INSURANCE, covering each Party's real and personal
property against all loss or damage by fire and other casualty, with
limits, deductibles, and coverage as each Party shall deem appropriate. The
policy shall contain a waiver of subrogation in favor of each other Party.
Each Party may elect to self-insure various portions of the above insurance
requirements provided that such Party meets and complies with all of the
requirements of self-insurance.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 58
FERC Electric Rate Schedule No. [___]
Each Party's liability insurance contracts with respect to this Agreement
that have an annual aggregate limit of liability shall be issued so as to
provide that, or shall be amended so as to provide that, the annual
aggregate limit applies on a per location basis.
Each Party shall be included as an additional insured on each other Party's
General Liability, Umbrella and Excess liability insurance policies with
respect to this Agreement.
CONSTELLATION COVENANTS, REPRESENTS AND WARRANTS:
A. That it has entered into an agreement of indemnification with the United
States Atomic Energy Commission as provided under Section 170 of the Atomic
Energy Act of 1954, as amended;
B. That it shall provide and maintain nuclear liability insurance in such
amounts and form as required by Section 170 of the Atomic Energy Act of 1954, as
amended;
C. That it shall provide and maintain nuclear property insurance in an
amount satisfactory to the NRC;
D. That it shall extend protection against a nuclear incident, as provided
for in (B) and (C) above, for the benefit of NYSEG and Niagara Mohawk, their
respective consultants, contractors, subcontractors, agents, invitees and
employees; and
E. That it shall indemnify and hold harmless NYSEG and Niagara Mohawk, their
respective consultants, contractors, subcontractors, agents, invitees and
employees, from and against all losses, penalties, claims, demands, actions,
proceedings, damages, expenses (including litigation costs and reasonable
attorneys' fees) and liabilities resulting from any nuclear incident.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 59
FERC Electric Rate Schedule No. [___]
In addition, Constellation covenants, represents and warrants that if the
nuclear liability protection system in effect on the effective date of this
Agreement expires or is repealed, changed, or modified, it shall, without cost
to NYSEG or Niagara Mohawk, maintain nuclear liability protection, to the extent
that it is reasonably available, for the protection of NYSEG and Niagara Mohawk,
through governmental indemnity, limitation of liability and/or insurance.
Issued by: [________] Effective: [_____], 2000
[Title]
Issued on: [______], 2000
Niagara Mohawk Power Corporation Original Sheet No. 60
FERC Electric Rate Schedule No. [___]
SCHEDULE D
SUBSTATION COMPONENTS
None