SCHEDULING AND ASSET OPTIMIZATION SERVICES AGREEMENT BETWEEN PPM ENERGY, INC. on the one hand AND on the other hand Dated June 7, 2006
Exhibit
10.9
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CONFIDENTIAL
TREATMENT
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REQUESTED
PURSUANT TO RULE 24b-2
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Certain
portions of this exhibit have been omitted pursuant to a request
for
confidential treatment under Rule 24b-2 of the Securities Exchange
Act of
1934. The omitted materials have been filed separately with the Securities
and Exchange Commission.
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BETWEEN
PPM
ENERGY, INC.
on
the
one hand
AND
MMC
ENERGY NORTH AMERICA LLC
MMC
CHULA
VISTA LLC
MMC
ESCONDIDO LLC
on
the
other hand
Dated
June 7, 2006
THIS
SCHEDULING AND ASSET OPTIMIZATION SERVICES AGREEMENT (this “Agreement”), entered
into this 7th day of June, 2006, is between PPM Energy, Inc., an Oregon
corporation (“PPM”) on the one hand, and MMC Energy North America LLC, a
Delaware limited liability company (“MMCN”), MMC Chula Vista LLC, a Delaware
limited liability company (“MMCC”), and MMC Escondido LLC, a Delaware limited
liability company (“MMCE”; each and all of MMCN, MMCC and MMCE intending to be
fully and independently, and jointly and severally, liable for each and all
of
the obligations of each and all of MMCN, MMCC and MMCE, and collectively herein
referred to as “MMC”; each reference to MMC means and includes any one or more
of MMCN, MMCC, or MMCE as applicable) on the other hand. MMC and PPM are
sometimes hereinafter referred to collectively as the “Parties” and individually
as a “Party.”
WHEREAS,
PPM is in the business of energy and gas marketing, and provides services to
optimize the fuel use and dispatch of electric generating facilities;
and
WHEREAS,
MMC wishes to hire PPM to perform scheduling and asset optimization services
for
the Chula Vista Facility and Escondido Facility;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties mutually agree as
follows:
SECTION
1
DEFINITIONS;
RULES OF INTERPRETATION
1.1 Defined
Terms.
Unless
otherwise required by the context in which any term appears, initially
capitalized terms used herein shall have the following meanings:
“AAA”
is
defined in Section 21.2.
“Affiliate”
means, with respect to any entity, each entity that directly or indirectly
controls, is controlled by, or is under common control with, such designated
entity. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlled by” and “under common control with”), as used
with respect to any entity, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies
of
such entity, whether through the ownership of voting securities or by contract
or otherwise.
“Applicable
Pricing Date” is defined in Section 10.1.
“Budgeted
Expectations” is defined in Section 6.1.
“Budgets”
is defined in Section 6.1.
“CAISO”
means the California Independent System Operator Corporation.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
1
“CAISO
Protocols” means all present and future protocols as in effect from time to time
under the authority of the CAISO.
“CAISO
Tariff” means all present and future protocols as in effect from time to time
under the authority of the CAISO.
“CEC”
means the California Energy Commission.
“Chula
Vista Facility” is an approximately 35 MW gas-fired electric generating facility
owned by MMCC located in Chula Vista, California.
“Commercial
Operation” means for each Facility that the Facility is fully operational and
reliable and is fully interconnected, fully integrated, and synchronized with,
and lawfully permitted to deliver wholesale energy to, the System. MMC and
PPM
shall agree as to when MMC believes that the Facility has achieved Commercial
Operation, anticipated to be June 1, 2006. In order to meet the requirements
for
Commercial Operation, all of the following events shall have occurred and remain
true and accurate: (1) Start-Up Testing of the Facility shall have been
completed; (2) MMC has obtained or entered into all Required Facility Documents
except where the failure to obtain or enter into a Required Facility Document
would not result in a Material Adverse Effect and provided PPM copies of any
or
all of the Material Facility Documents to the extent reasonably requested by
PPM; and (3) the Facility is staffed 24 hours a day, seven days a week, or
with
remote start capability and otherwise able to dispatch instantaneously to
precision Net Output and dispatch schedules as provided herein.
“Commercial
Operation Date” means the date that Commercial Operation is
achieved.
“Confidential
Business Information” is defined in Section 20.1.
“Contract
Interest Rate” means the lesser of the highest rate permitted under applicable
law or 200 basis points per annum plus the rate per annum equal to the publicly
announced prime rate or reference rate for commercial loans to large businesses
in effect from time to time quoted by Citibank, N.A as its “prime rate”. If a
Citibank, N.A. prime rate is not available, the applicable prime rate shall
be
the announced prime rate or reference rate for commercial loans in effect from
time to time quoted by a bank with $10 billion or more in assets in New York
City, N.Y., selected by the Party to whom interest is being paid.
“CPUC”
means the California Public Utilities Commission
“Delivery
Point” means for the Chula Vista Facility, Otay Substation Radial Tie Line
TL6929 and for the Escondido Facility, Radial Tie Line 6933.
“Derating”
means a reduction in Facility capacity or generating capability for any cause,
including ambient air temperature, relative humidity, Btu heat content of fuel,
gas pipeline pressure, shaft or other component vibration, excessive bearing
temperatures, or combustion tuning..
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
2
“EEI
Agreement” means those certain Edison Electric Institute Master Agreements for
the Purchase & Sale of Energy, with credit support and gas annexes, entered
into by and between PPM on the one hand and MMCC and MMCE on the other hand,
dated May 8, 2006.
“Effective
Date” is defined in Section 2.1.
“Electric
System Authority” means each of NERC, CAISO, WECC, a regional or sub-regional
reliability council, and any other similar council, organization or body of
recognized standing with respect to the operations of the electric system in
the
WECC region or part thereof.
“Energy
Costs” is defined in Section 6.1. “Energy Revenue” is defined in Section
6.4.
“Escondido
Facility” is an approximately 35 MW gas-fired electric generating facility owned
by MMCE located in Escondido, CA.
“EWG”
means an “exempt wholesale generator” as defined under PUHCA.
“Facility”
means the Chula Vista Facility or the Escondido Facility, or both, as
applicable.
“FERC”
means the Federal Energy Regulatory Commission.
“FERC
203
Application” means an application to FERC of MMC under Section 203 of the
Federal Power Act for Authorization to Dispose of Jurisdictional
Facilities.
“FERC
205
Notice” means a “Notice of Change in Status” to be filed at FERC by PPM and its
subsidiaries with market-rate authorization under Section 205 of the Federal
Power Act referencing PPM’s entering into this Agreement.
“FIN
46”
is defined in Section 12.11.
“Force
Majeure” means an event of Force Majeure as defined and described in Section
18.1.
“Forced
Outage” means NERC Event Types U1, U2 and U3, as set forth in attached Exhibit
N, and specifically excludes any Maintenance Outage or Planned
Outage.
“Fuel
Price” means the price of gas as calculated pursuant to Section
10.1.
“Gas
Day”
means a period of 24 consecutive hours, coextensive with a “day” as defined by
the SoCalGas or SDG&E, as applicable.
“Gas
Daily Midpoint Price” is defined in Section 10.1.
“General
Order 167” means CPUC General Order No. 167 for the Enforcement of Maintenance
and Operation Standards for Electric Generating Facilities effective September
2, 2005, as the same may be in effect from time to time.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
3
“Generation
Interconnection Agreement” means the agreement entered into between MMC and
Interconnection Provider for each Facility regarding the Interconnection
Facilities.
“GMC”
is
defined in Section 8.1.1.
“Governmental
Authority” means any supranational, federal, state or other political
subdivision thereof, having jurisdiction over MMC, PPM or this Agreement,
including any municipality, township or county, and any quasi-municipal agency
or district or other entity or body exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, including
any corporation or other entity owned or controlled by any of the
foregoing.
“Interconnection
Facilities” means the facilities installed, or to be installed, for the purpose
of interconnecting the Facility to the System, including electrical transmission
lines, upgrades, transformers and associated equipment, substations, relay
and
switching equipment, and safety equipment.
“Interconnection
Provider” means SDG&E for the Chula Vista Facility, and SDG&E for the
Escondido Facility.
“Letter
of Credit” means an irrevocable standby letter of credit in a form reasonably
acceptable to PPM, naming PPM as the party entitled to demand payment and
present draw requests thereunder, which letter(s) of credit: (1) is issued
by a
Qualifying Institution; (2) by its terms, permits PPM to draw up to the face
amount thereof for the purpose of paying any and all amounts owing by MMC
hereunder; (3) if issued by a foreign bank with a U.S. branch, permits PPM
to
draw upon the U.S. branch; (4) permits PPM to draw the entire amount available
thereunder if such letter of credit is not renewed or replaced at least 30
business days prior to its stated expiration date; and (5) permits PPM to draw
the entire amount available thereunder if such letter(s) of credit are not
increased, replaced or replenished as and when required herein.
“Liquidated
Damages” is defined in Section 9.1.
“Local
Transportation Shrinkage” means the Pipeline Shrinkage applicable to the
SoCalGas or the SDG&E gas pipeline system, as applicable, used to deliver
gas from the SoCal Border to the applicable Facility, expressed in
MMBtu.
“Maintenance
Outage” means NERC Event Type MO, as set forth in attached Exhibit N, and
includes any Outage that is not a Forced Outage or a Planned
Outage.
“Market-Place
Dispatchable” means for each Facility the period of time during which it is
operated and operational for market-driven dispatch, rather than operational
dispatch, and shall exclude periods during which a Facility is not in Commercial
Operation, is being tested or fine-tuned, has an Outage, or is otherwise
unavailable or only available for operationally driven dispatch, rather than
market-driven dispatch.
“Material
Adverse Effect” means any event or condition that (A) actually has, or is
reasonably likely to have, a significant adverse effect on (i) MMC’s ability to
own, control or operate a Facility, (ii) PPM’s rights to dispatch the Facility,
(iii) a Party’s required rights from third parties, or other necessary abilities
to perform its obligations hereunder, (iv) a Facility’s ability to operate,
generate and deliver Power Products to the Point of Delivery for transmission
away from the Point of Delivery, (v) a Facility’s rights to transmit Power
Products to or through the CAISO, (vi) the business, operations, properties
assets, prospects or condition (financial or otherwise) of a Party, (B)
***.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
4
“Material
Facility Document” means those documents, permits, and authorizations specified
on Exhibit M.
“Mediation
Notice” is defined in Section 21.2(a).
“Mediation
Procedures” is defined in Section 21.2.
“MMC”
is
defined in the Recitals.
“MMCC”
is
defined in the Recitals.
“MMCE”
is
defined in the Recitals.
“MMCN”
is
defined in the Recitals.
“Monthly
Fee” means $***
per
month.
“MW”
means megawatt.
“MWh”
means megawatt hour.
“NERC”
means the North American Electric Reliability Council.
“Net
Energy Revenue” is defined in Section 6.4.
“Net
Output” means all Output delivered at the Delivery Point.
“Operational
Flow Order/Emergency Flow Order Day” or “OFO/EFO” means the Gas Day(s) declared
by SoCal and or SDG&E as an OFO/EFO Gas Day pursuant to the respective
tariff.
“Outage”
means a Forced Outage, Maintenance Outage or Planned Outage.
“Output”
means all energy and electricity produced by a Facility.
“Pacific
Prevailing Time” or “PPT” means Pacific Standard Time or Pacific Daylight Time,
as applicable on the day in question.
“Party”
and “Parties” are defined in the Recitals.
“PPM”
is
defined in the Recitals.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
5
“Permits”
means all of the permits, licenses, approvals, certificates, entitlements and
other authorizations issued by, and notices and registrations submitted to,
Governmental Authorities required for the ownership and operation of the
Facility and occupancy of the Premises, including those specified in Exhibit
3.2.9, and all amendments, modifications, supplements, general conditions and
addenda thereto.
“Pipeline
Shrinkage” means the quantity of gas that SoCalGas or SDG&E, pursuant to
their applicable tariffs, recover in-kind from their customers/shippers to
offset gas used in their system operations.
“Pipeline
Fixed Cost” means any fixed costs, fees, taxes or penalties specified in
SoCalGas or SDG&E tariffs applicable to the delivery of gas to a
Facility.
“Pipeline
Variable Cost” means any variable costs, fees, taxes or penalties specified in
SoCalGas or SDG&E tariffs applicable to the delivery of gas to a Facility,
including Pipeline Shrinkage.
“Planned
Outage” means NERC Event Type PO, as set forth in attached Exhibit N, and
specifically excludes any Maintenance Outage or Forced Outage.
“Power
Products” ***.
“Premises”
means the real property on which the Facility is or will be located.
“Protocols”
are set forth in Exhibit P.
“Prudent
Electrical Practices” means any of the practices, methods and acts engaged in or
approved by a significant portion of the electrical utility industry or any
of
the practices, methods or acts, which, in the exercise of reasonable judgment
in
the light of the facts known at the time a decision is made, could have been
expected to accomplish the desired result at the lowest reasonable cost
consistent with reliability, safety and expedition. Prudent Electrical Practices
is not intended to be limited to the optimum practice, method or act to the
exclusion of all others, but rather to be a spectrum of possible practices,
methods or acts.
“PUHCA”
means the Public Utility Holding Company Act of 1935, as amended from time
to
time and, in the case of full or partial repeal, successor laws and regulations,
including those governing generation or transmission of
electricity.
“Qualifying
Institution” means a commercial bank or trust company organized under the laws
of the United States or a political subdivision thereof, or a United States
branch of a foreign bank, with a net worth of at least $500,000,000 and a credit
rating on its long-term senior unsecured debt of at least “A” by Standard &
Poor’s Ratings Services or “A2” by ▇▇▇▇▇’▇ Investors Service, Inc.
“Resource
Adequacy Requirements” means requirements applicable to California generating
facilities generally pursuant to those California laws and regulations
promulgated with the stated intent to ensure that adequate physical generating
capacity dedicated to serving all load requirements to meet peak demand and
planning and operating reserves, at or deliverable to locations and at times
as
may be necessary to ensure loan area reliability and system reliability, at
just
and reasonable rates.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
6
“Required
Facility Documents” means all Permits and any other authorizations, rights,
CAISO certifications and agreements now or hereafter necessary for the operation
and maintenance of the Facility and the Premises and the generation and
transmission for energy and receipt of gas, including those set forth in Exhibit
3.2.9. Nothing set forth in Exhibit 3.2.9 limits the obligations of MMC to
obtain the Permits required hereunder.
“Requirements
of Law” means any applicable federal, state and local law, statute, executive
order, regulation, rule, code or ordinance enacted, adopted, issued or
promulgated by any federal, state, local or other Governmental Authority or
regulatory body (including those pertaining to electrical, building, zoning,
environmental and occupational safety and health requirements).
“SDG&E”
means San Diego Gas & Electric.
“Services”
is defined in Section 4.1.
“SoCalGas”
means the Southern California Gas Company.
“Standard
Packages” means full-Gas Day physical deliveries of gas. Any group of contiguous
Gas Days which are traded as one package shall be deemed a Standard Package
and
the quantity of gas delivered on each Gas Day included in such a Standard
Package shall be the same. Contiguous Gas Days shall be treated as a Standard
Package if the Parties reasonably expect such Gas Days to be listed next to
the
label “Flow date(s):” under the heading “Daily price survey ($/MMBtu)” in the
applicable Platts Gas Daily publication or its successors. Examples of
contiguous Gas Days, which are usually traded as one package, are Saturdays,
Sundays, and Mondays.
“Start
Costs” is defined in Section 6.2.
“Start-Up
Testing” means the start-up tests for the Facility.
“System”
means the electric transmission substation and transmission and/or distribution
facilities owned, operated or maintained by Transmission Provider, which
includes the circuit reinforcements, extensions, and associated terminal
facility reinforcements or additions required to interconnect the Facility,
all
as set forth in the Generation Interconnection Agreement.
“Term”
is
defined in Section 2.1.
“Test
Energy” means any Output during periods prior to the Commercial Operation
Date.
“Transmission
Provider” means CAISO for the Chula Vista Facility, and CAISO for the Escondido
Facility.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
7
“Transmission
Service” means, if applicable, the transmission services pursuant to which the
Transmission Provider transmits Output from the Delivery Point, as
applicable.
“Unwind
Fee” ***.
“WECC”
means the Western Electricity Coordinating Council.
1.2 Rules
of Interpretation.
1.2.1. General.
Unless
otherwise required by the context in which any term appears, (a) the singular
includes the plural and vice versa; (b) references to “Articles,” “Sections,”
“Schedules,” “Annexes,” “Appendices” or “Exhibits” (if any) are to articles,
sections, schedules, annexes, appendices or exhibits hereof, (c) all references
to a particular entity or an electricity or gas market price index include
a
reference to such entity’s or index’s successors and (if applicable) permitted
assigns; (d) the words “herein,” “hereof” and “hereunder” refer to this
Agreement as a whole and not to any particular Section or subsection hereof;
(e)
all accounting terms not specifically defined herein are to be construed in
accordance with generally accepted accounting principles in the United States
of
America, consistently applied; (f) references to this Agreement include a
reference to all appendices, annexes, schedules and exhibits hereto, as the
same
may be amended, modified, supplemented or replaced from time to time; (g) the
masculine includes the feminine and neuter and vice versa; (h) “including” means
“including, without limitation” or “including, but not limited to”; and (i) the
word “or” is not necessarily exclusive.
1.2.2. Terms
Not to be Construed For or Against Either Party.
Each
term hereof shall be construed simply according to its fair meaning and not
strictly for or against either Party. The Parties have jointly prepared this
Agreement, and no term hereof shall be construed against a Party on the ground
that the Party is the author of that provision.
1.2.3. Headings.
The
headings used for the sections and articles hereof are for convenience and
reference purposes only and shall in no way affect the meaning or interpretation
of the provisions hereof.
1.2.4. Examples.
Example
calculations and other examples set forth herein are for purposes of
illustration only and are not intended to constitute a representation, warranty
or covenant concerning the example itself or the matters assumed for purposes
of
such example. If there is a conflict between an example and the text hereof,
the
text shall control.
1.2.5. Joint
Obligations of MMC.
Any
obligation, covenant, waiver, indemnity or representation of or by “MMC” in this
Agreement, an EEI Agreement, or any document or instrument ancillary hereto
or
thereto is without limitation, and an independently enforceable, mutually
guarantied, joint and several obligation, covenant, waiver, indemnity and
representation of each and all of MMCC, MMCE and MMCN.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
8
SECTION
2
TERM
2.1 Term.
This
Agreement shall become effective on the date hereof (“Effective Date”) and,
unless earlier terminated as provided herein, shall remain in effect until
six
months from the Commercial Operation Date and shall automatically renew
month-to-month thereafter, until terminated on prior written notice given by
either Party at least 60 days before the last day of the month in which
termination is desired to be effective (the “Term”). In the event of a
termination, any outstanding delivery and/or payment obligations, including
those committed to by PPM with third parties respecting the Facilities in
accordance with the Services, shall continue until fully performed or
discharged. If MMC terminates prior to July 31, 2006, in addition to all other
amounts due hereunder, MMC shall pay the Unwind Fee.
SECTION
3
REPRESENTATIONS
AND WARRANTIES
3.1 PPM’s
Representations and Warranties.
PPM
represents, covenants, and warrants to MMC that:
3.1.1. Organization.
PPM is
duly organized and validly existing under the laws of the State of
Oregon.
3.1.2. Authority.
PPM has
the requisite corporate, legal, and regulatory power and authority to enter
hereinto and to perform according to the terms hereof.
3.1.3. Corporate
Actions.
PPM has
taken all actions required to be taken by it to authorize the execution,
delivery and performance hereof and the consummation of the transactions
contemplated hereby.
3.1.4. No
Contravention.
The
execution and delivery hereof do not contravene any provision of, or constitute
a default under, any indenture, mortgage, security instrument or undertaking,
or
other material agreement to which PPM is a party or by which it is bound, or
any
valid order of any court, or any regulatory agency or other body having
authority to which PPM is subject.
3.1.5. Valid
and Enforceable Agreement.
This
Agreement is a valid and legally binding obligation of PPM, enforceable against
PPM in accordance with its terms (except as the enforceability hereof may be
limited by general principles of equity or bankruptcy, insolvency, bank
moratorium or similar laws affecting credit-ors’ rights generally and laws
restricting the availability of equitable remedies).
3.2 MMC’s
Representations and Warranties.
MMC
represents, covenants, and warrants to PPM that:
3.2.1. Organization.
MMCN,
MMCC, and MMCE are each limited liability companies duly organized and validly
existing under the laws of Delaware.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
9
3.2.2. Authority.
(a) MMCC
(i)
leases the Chula Vista Facility pursuant to a lease with at least five years’
term remaining from the date hereof; (ii) is not a load-serving entity; (iii)
has the requisite corporate, legal and regulatory power and authority to enter
hereinto and to perform according to the terms hereof, including all required
regulatory authority to make wholesale sales from the Facility; (iv) has the
power and authority to own and operate its businesses and properties, to own
or
lease the Premises and to conduct the business in which it currently engaged;
and (v) is duly qualified and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except in each case in clauses
(iii), (iv), and (v) where the failure would not result in a Material Adverse
Effect.
(b) MMCE
(i)
owns the Escondido Facility; (ii) is not a load-serving entity; (iii) has the
requisite corporate, legal and regulatory power and authority to enter hereinto
and to perform according to the terms hereof, including all required regulatory
authority to make wholesale sales from the Facility; (iv) has the power and
authority to own and operate its businesses and properties, to own or lease
the
Premises and to conduct the business in which it currently engaged; and (v)
is
duly qualified and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, except in each case in clauses (iii), (iv), and
(v)
where the failure would not result in a Material Adverse Effect.
(c) MMCN
(i)
owns 100% of the equity interests in MMCC and MMCE; (ii) is not a load-serving
entity; (iii) has the requisite corporate, legal and regulatory power and
authority to enter hereinto and to perform according to the terms hereof,
including all required regulatory authority to make wholesale sales from the
Facility; (iv) has the power and authority to own and operate its businesses
and
properties, to own or lease the property it occupies and to conduct the business
in which it currently engaged; and (v) is duly qualified and in good standing
under the laws of each jurisdiction where its ownership, lease or operation
of
property or the conduct of its business requires such qualification, except
in
each case in clauses (iii), (iv), and (v) where the failure would not result
in
a Material Adverse Effect.
3.2.3. Actions.
MMCC,
MMCE, and MMCN have each taken all actions required to authorize the execution,
delivery and performance hereof and the consummation of the transactions
contemplated hereby.
3.2.4. Familiarity
with Requirements of Law.
MMC is
familiar with the requirements of and can comply with all Requirements of Law,
including General Order 167.
3.2.5. No
Contravention.
The
execution, delivery, performance and observance by MMCC, MMCE, and MMCN of
their
obligations hereunder do not and will not:
(a) contravene,
conflict with or violate any provision of any material Requirements of Law
presently in effect having applicability to MMC or any of MMC’s
members;
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
10
(b) require
the consent or approval of or material filing or registration with any
Governmental Authority or other person other than such consents and approvals
which are (i) set forth in Exhibit 3.2.9 or (ii) required in connection with
the
operation or ownership of the Facility, described in Exhibit 3.2.9 and expected
to be obtained in due course;
(c) Except
to
the extent it would not result in a Material Adverse Effect, result in a breach
of or constitute a default under any material agreement, instrument or
undertaking to which MMC is a party or by which the Premises or MMC is
bound.
3.2.6. Valid
and Enforceable Agreement.
This
Agreement is a valid and legally binding obligation, enforceable in accordance
with its terms (except as the enforceability hereof may be limited by general
principles of equity or bankruptcy, insolvency, bank moratorium or similar
laws
affecting creditors’ rights generally and laws restricting the availability of
equitable remedies).
3.2.7. Litigation.
No
litigation, arbitration, investigation or other proceeding is pending or, to
the
best of MMC’s knowledge, threatened against any of MMCN, MMCC or MMCE, or
against any of their members or managers with respect hereto or the transactions
contemplated hereunder.
3.2.8. Accuracy
of Information.
No
exhibit, contract, report or document furnished by MMC to PPM in connection
with
this Agreement, or the negotiation or execution hereof, contains any material
misstatement of fact or omits to state a material fact or any fact necessary
to
make the statements contained therein not misleading.
3.2.9. Required
Facility Documents.
All
Required Facility Documents are listed on Exhibit 3.2.9, are held by MMC and
are
valid and in full force and effect with any applicable appeal periods having
expired. Pursuant to the Required Facility Documents, MMC holds as of the
Effective Date, or will hold by the Commercial Operation Date, and covenants
that it will hold during the Term, all rights and entitlements necessary to
own
and operate the Facility and to perform its duties under and deliver Net Output
to PPM in accordance with this Agreement. No unusual or burdensome conditions
are expected by MMC to be placed upon, or created by, any of the Required
Facility Documents and the anticipated operation of the Facility complies with
all applicable restrictive covenants affecting the Premises and all Requirements
of Law.
3.3 No
Other Representations or Warranties.
Each
Party acknowledges that it has entered hereinto in reliance upon only the
representations and warranties set forth in this Agreement, and that no other
representations or warranties have been made by the other Party with respect
to
the subject matter hereof.
3.4 Continuing
Nature of Representations and Warranties; Notice.
The
representations and warranties set forth in this Section are made as of the
Effective Date and deemed made continually throughout the Term. If at any time
during the Term, any Party obtains actual knowledge of any event or information
which causes any of the representations and warranties in this Section 3 to
be
materially untrue or misleading, such Party shall provide the other Party with
written notice of the event or information, the representations and warranties
affected, and the action, if any, which such Party intends to take to make
the
representations and warranties true and correct. The notice required pursuant
to
this Section shall be given as soon as practicable after the occurrence of
each
such event.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
11
SECTION
4
SERVICES
4.1 Services.
PPM
will provide, and MMC hereby grants PPM the authority to perform and provide,
the following scheduling and asset optimization services to MMC for each
Facility from and after the Commercial Operation Date for such facility (the
“Services”): PPM will manage the daily and intraday interface of the Facilities
with the fuel and electricity marketplaces, including with the CAISO, bilateral
electricity and natural gas markets and the pipelines serving the Facilities.
The Services shall include:
4.1.1. Facility
Dispatch. Subject
to the parameters specified by MMC and the availability of each respective
Facility on a day ahead basis (as day ahead is defined in the WECC preschedule
calendar), as determined in MMC’s sole discretion in conformity with the terms
hereof, PPM will submit energy and capacity bids and offers for the Facilities
to the CAISO, serve as each Facility’s (or MMC’s, as applicable) Scheduling
Coordinator, schedule the dispatch of the Facilities with the CAISO, communicate
Outages and Deratings to the CAISO, and coordinate any dispatch with each
Facility’s manager, receiving and validating the CAISO invoices.
4.1.2. Gas
Scheduling.
PPM
will schedule and ship gas for each Facility, and manage any imbalances and
pooling on natural gas pipelines created by each Facility.
4.1.3. Energy
Purchases.
PPM
will purchase from MMC (and MMC will sell to PPM), act as MMC’s agent with
respect to (which agency MMC grants and PPM accepts), transact in its own or
MMC’s name as permitted under applicable law, and otherwise manage the
Facilities’ Power Products. As determined appropriate by PPM, such transactions,
including those under Section 6.7.2, will be documented as transactions under
the EEI Agreements. PPM may at any time determine that any one or more, or
all,
transactions respecting energy or capacity generated by the Facility shall
be
sold to PPM as transactions pursuant to the EEI Agreements.
4.1.4. Gas
Purchases and Control.
PPM
will control all gas usage by the Facilities, sell to MMC, act as MMC’s agent
and/or contract marketer with respect to, acquire and transact in its own or
MMC’s name as permitted under applicable law, and/or otherwise manage the
Facilities’ gas requirements, and have all rights of MMC with respect to
imbalances, pooling and otherwise on natural gas pipelines, and may acquire
gas
in MMC’s name, or transport in PPM’s name, so shipper will have title and all
applicable law is otherwise complied with. PPM may at any time determine, in
compliance with the foregoing, that any one or more, or all, transactions
respecting gas or gas transportation relating to the Facility shall be sold
to
PPM as transactions pursuant to the EEI Agreement.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
12
4.1.5. CAISO
and Bilateral Transactions.
PPM may
from time to time locate CAISO transactions or bilateral transactions with
third
parties having terms longer than day-ahead (as that term is used in the WECC
Preschedule Calendar); in such event, PPM may request from MMC authority to
execute such transactions if PPM reasonably expects that the Net Energy Revenues
therefrom exceed the proportionate Budgeted Expectations for the time period,
the transaction is of a term of less than five days, as provided in the
Protocols. PPM acknowledges and agrees that, subject to the provisions of this
Section 4.1.5 and the Protocols, final approval for the entering into any
bilateral transaction rests solely with MMC in its sole discretion.
4.2 Direct
Payment.
All
transactions relating to all of the foregoing services shall be structured
to
provide that any third party involved pays PPM directly, unless PPM determines
otherwise.
4.3 Exclusivity.
PPM
shall be the exclusive provider of any services within the definition of
Services to MMC during the Term. PPM shall have the exclusive right to obtain
Power Products from, and manage the gas supply of, the Facilities for the Term;
provided, however, that the Parties may mutually agree to specific transactions
that cover a longer term. During the Term, MMC shall not sell any Power Products
from the Facility to any party other than PPM. Until the Commercial Operation
Date for each Facility, the Parties shall continue to perform under that certain
Confirmation for Energy Management Services during Test Fire Period entered
into
May 5, 2006, under the EEI Agreements, without the need for further extending
amendments of such Confirmation.
4.4 Ultimate
Control.
PPM
shall file a FERC 205 Notice. As MMC shall have ultimate control regarding
the
dispatching of the Facilities for the generation of electric energy as provided
in the Protocols and Sections 2.1 and 5.3, no FERC 203 Application shall be
filed. If FERC determines that a FERC 203 Application is required, the Parties
shall either (i) terminate this Agreement (with all payments and performance
due
on early termination remaining due to the maximum extent permitted under
applicable law), (ii) modify or amend this Agreement so as to address any
concerns of FERC to the extent such amendments or modifications are commercially
reasonable and comply with Requirements of Law, or (iii) MMC shall file as
quickly, and the Parties shall pursue successful acceptance of, as commercially
reasonable, a FERC 203 Application as required by FERC.
SECTION
5
FUTHER
COVENANTS RESPECTING SERVICES AND FACILITIES
5.1 Protocols.
The
Parties shall agree upon day ahead and intraday protocols for provision of
the
Services. These protocols shall include and not be limited to the
Protocols.
5.2 Maintenance
of Authorities.
MMC
agrees that it will, and maintain such personnel and authorities, Required
Facility Documents, rights and authorizations as are necessary to enable it
to,
follow any instructions issued to it by PPM in connection with the foregoing,
including the dispatch instantaneously to precision Net Output and the dispatch
of schedules.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
13
5.3 MMC
Operational Control.
MMC
will remain in charge of and responsible for the operations of the Facilities
and the maintenance of the Premises, and will be responsible to maintain all
contracts, rights, Required Facility Documents, Requirements of Law, and tariffs
with third parties and Governmental Authorities as necessary for the operation
of the Facilities, sale and transportation of natural gas and transmission
of
electricity.
5.4 EWG.
MMC
covenants that during the Term MMC shall, to the extent required to prevent
MMC
or any Facility from being regulated as a “Public Utility” pursuant to PUHCA or
otherwise, cause MMC, as applicable, to be an EWG. During the Term, MMC shall
maintain its EWG status (to the extent it is required by law to do so) and
its
authority to perform its obligations hereunder.
SECTION
6
PRICING
OF SERVICES
6.1 Energy
Costs.
The
monthly budgets for each Facility for the next eleven months from the Effective
Date (the “Budgets”) are set forth on Exhibit 6.1 hereto. The Budgets set forth
certain net revenue expectations agreed to by all Parties (“Budgeted
Expectations”) and include certain operating costs for said Facility (the costs
being “Energy Costs”). Budgeted Expectations do not include any revenue derived
from or attributable to any matter respecting Resource Adequacy Requirements.
MMC will update Budgets and Budgeted Expectations for each following
twelve-month period two months before the commencement of such twelve-month
period. PPM may in its discretion determine at any time before the commencement
of the applicable twelve-month period that PPM does not wish to provide the
Services with such a Budget, and terminate this Agreement as of the end of
the
then-applicable Budget’s twelve-month period, with MMC owing PPM the Unwind Fee
and any other amounts due hereunder.
6.2 Inclusions.
Energy
Costs at a minimum shall include (but shall not double count any
component):
6.2.1. the
Fuel
Price,
6.2.2. a
“Variable O&M Charge”***,
6.2.3. “Start
Costs” ***,
6.2.4. flow
order penalties attributable to Facility Operations, and
6.2.5. any
CAISO
fees or charges incurred as a result of managing and dispatching the Facilities,
and any other agreed to costs incurred to generate Power Products (excluding
Liquidated Damages).
6.3 Exclusions.
Energy
Costs shall exclude (and so neither Budgeted Expectations nor Energy Costs
once
in the Budget may be adjusted on account of) without limitation any and all
of
the following:
6.3.1. all
costs
of emissions credits,
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
14
6.3.2. the
Monthly Fee,
6.3.3. Liquidated
Damages,
6.3.4. Pipeline
Fixed Fees,
6.3.5. any
other
costs required to operate the Facilities or comply with applicable law,
or
6.3.6. any
other
item that is not specifically set forth as a liquidated amount in the Energy
Costs.
6.4 Energy
Revenue.
At the
end of each month, the revenue received by PPM from Power Products, including
revenue paid by PPM to MMC pursuant to Sections 6.7.2 and 9.1, shall be
calculated as the “Energy Revenue” for each Facility (but shall not double count
any component). Energy Revenue less Energy Costs is “Net Energy Revenue” for
each Facility. Energy Revenue shall include all energy and/or capacity payments
and other payments from the CAISO and bilateral electricity markets for
ancillary services or energy (which, among other things, shall include
congestion charges or related payments otherwise payable to MMC). Amounts
received by PPM respecting a Facility that are on account of anything other
than
firing or committing the firing of the Facility shall be for PPM’s sole account
and not be included in calculation of Energy Revenue. All other amounts received
by PPM, including interest on collateral posted by counterparties, shall be
for
the account of PPM and excluded from the calculation of Energy Revenue. Costs
and expenses deducted from amounts received when calculating Net Energy Revenue
shall include all Energy Costs as defined above.
6.5 Payment
to PPM.
Net
Energy Revenue shall be for the account of MMC, but PPM shall be entitled to
withhold therefrom (i) its Monthly Scheduling Services Fee, (ii) Pipeline Fixed
Costs, including any fixed fees or charges payable under the SDG&E or SoCal
pipeline local distribution company applicable tariff relating to a Facility,
(iii) Liquidated Damages, plus (iv) with respect to each Facility, ***
of the
amount by which Net Energy Revenue exceeds Budgeted Expectations, pro-rated
for
the period during which that Facility was Market-Place Dispatchable less than
***
for that
month, plus (v) all other amounts which MMC has agreed to pay or reimburse
PPM
pursuant hereto. If there is no Net Energy Revenue for a given month, PPM shall
▇▇▇▇ and MMC shall pay all the foregoing amounts to PPM as provided in Section
14. MMC shall further indemnify and hold PPM and its affiliates harmless from
any and all claims brought by creditors of MMC against PPM or any affiliate
of
PPM alleging that PPM or such affiliate is holding moneys of MMC.
6.6 Limitation
on PPM Obligations and Liabilities.
Without
limiting the generality of the limitations on the obligations or liabilities
of
PPM set forth elsewhere herein:
6.6.1. PPM
shall
not be obligated to pay MMC any money because Energy Revenue does not exceed
Energy Costs for either Facility, except for purchased Power Products as
provided in Section 6.7.2 below and reimbursement pursuant to Section 6.7.3
below.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
15
6.6.2. Under
no
circumstances shall PPM be liable for negative net margins, Energy Costs, or
a
Facility’s Net Energy Revenue not meeting or exceeding Budgeted
Expectations.
6.6.3. PPM
shall
have no liability to MMC for any failure to sell Power Products, or use any
gas,
during the Term.
6.6.4. PPM
will
determine the strategy for bidding Power Products in the CAISO and bilateral
markets in consultation with MMC as provided in the Protocols, and will not
be
liable to MMC in the event MMC subsequently disagrees with PPM’s past
implementation of such strategy.
6.7 Further
Terms Respecting Pricing.
Without
limiting the foregoing:
6.7.1. In
the
event of a negative spark spread, PPM will not, to the best of its reasonably
exercised commercial judgment, dispatch a Facility unless there is an
opportunity to receive payments from the CAISO pursuant to the CAISO Tariff
or
otherwise cause Energy Revenue to exceed Budgeted Expectations for that Facility
when viewed in the context of all Power Product transactions. PPM may use
commercial judgment when dispatching a Facility in determining whether there
is
a positive spark spread. As the gas price on intra-day decisions will not be
known until the index settles two days after the dispatch decision, PPM will
make a commercially reasonable decision, but will not be held liable for
dispatching, if subsequent to such decision, a negative spark spread is
determined to have existed or the conditions set forth in the first sentence
of
this Section 6.7.1 applied.
6.7.2. PPM
may
purchase any Power Products from MMC at ***.
6.7.3. If
at a
given time there is no positive spark spread available in the energy market,
and
PPM in its discretion elects to exchange energy on a Facility by scheduling
day
ahead or hourly against the Facility’s generating capacity, then PPM will
reimburse MMC for any ancillary services capacity payment that would have been
received had the Facility’s capacity been offered in the CAISO ancillary
services market, as long as the Facility remains available for such period,
by
paying the higher of the clearing price of the day ahead ancillary services
clearing price or the hour ahead ancillary services clearing price for the
applicable hours. ***.
6.7.4. PPM
shall
be responsible for negligent errors or omissions made by it in dispatching
or
fuel balancing errors or omissions, but decisions made in good faith in
accordance with the Protocols or economic outcomes do not constitute
errors.
6.7.5. Energy
Revenue includes all amounts received from contracts or other third party
agreements, as well as regulatorily ordered or legally compelled arrangements,
for the sale of electricity or capacity from a Facility.
6.7.6. Whether
it is PPM or MMC who is responsible for the gas tariff and any charges
associated pursuant to the applicable tariff and as acceptable to PPM’s
requirements, all costs will be at the expense of MMC and be embedded as
Pipeline Variable Costs and Pipeline Fixed Costs as applicable. During the
Term,
PPM will arrange with SDG&E with respect to PPM serving as a credit
intermediary for the gas tariff of the Facility, with any such function to
terminate no later than termination of this Agreement.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
16
6.7.7. Gas
may
be supplied from existing PPM inventory or rights or transactions entered into
in the bilateral electricity or gas markets by PPM at PPM’s
discretion.
6.7.8. For
a
period ending two weeks after the Effective Date, MMC may amend the Budget
once
based upon actual performance of the Facilities, provided that in such event,
PPM may, if in its discretion these changes are considered by PPM to be
commercially materially negative with regard to PPM, terminate this Agreement
effective as soon as reasonably practical for PPM, without further obligation
on
the part of the Parties, other than completion of contracts already binding
the
output of the Facilities, payment by MMC to PPM of the Unwind Fee, and the
obligations provided in this Agreement and the EEI Agreements as surviving
termination shall survive.
6.7.9. Except
as
explicitly set forth herein, PPM shall not owe MMC any fees or other payments
on
account of this Agreement.
6.8 Monthly
Scheduling Fee.
In
addition to the other amounts due hereunder, MMC shall pay PPM each month the
Monthly Fee for each month or part thereof during the Term.
6.9 Rates
Not Subject to Review.
The
rates for Services specified herein shall remain in effect until expiration
of
the Term, and shall not be subject to change for any reason, including
regulatory review, absent agreement of the Parties. Neither Party shall petition
FERC pursuant to the provisions of sections 205 or 206 of the Federal Power
Act
(16 U.S.G. § 792 et
seq.)
to
amend such prices or terms, or support a petition by any other person seeking
to
amend such prices or terms, absent the agreement in writing of the other Party.
Further, absent the agreement in writing by all Parties, the standard of review
for changes hereto proposed by a Party, a non-party or the FERC acting
sua
sponte shall
be
the “public interest” standard of review set forth in United
Gas Pipe Line Co. v. Mobile Gas Service Corp.,
▇▇▇
▇.▇. ▇▇▇ (1956) and Federal
Power Commission v. Sierra Pacific Power Co.,
▇▇▇
▇.▇. ▇▇▇ (1956).
SECTION
7
CONDITIONS
PRECEDENT
7.1 Conditions
Precedent.
The
obligations of the Parties under this Agreement are subject to the following
conditions precedent:
7.1.1. MMC’s
proof of ownership and right to conduct itself with the Facilities and their
interconnection and fuelling in the manner contemplated herein.
7.1.2. The
Parties meeting all Requirements of Law and having all authorities required
by
all applicable Electric System Authorities to perform this Agreement and the
transactions contemplated herein.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
17
7.1.3. MMC
and
the Facilities will have all required emissions credits, CAISO certifications,
FERC market-based rate authority, CEC and CPUC authorizations and approvals,
interconnection agreements and authorizations and Required Facility Documents,
in the correct name, as are required to perform this Agreement and the
transactions contemplated hereunder. Specifically, MMC shall be responsible
and
confirm to PPM that is has complied with all requirements under sections 8
and 9
of the “California ISO Generator Interconnection Manual” located on the internet
at: http:/lwww.caiso.comldocs/2003/06/09/200306090024421491.doc
7.1.4. MMC’s
establishment of all record-keeping and other capabil¬ities required for
compliance with General Order 167.
7.1.5. The
Parties shall have all such control over any rights to deal with energy and
gas
as are required to perform this Agreement.
SECTION
8
PPM
AS SCHEDULING COORDINATOR AND CONTRACT MARKETER
8.1 Scheduling
Coordinator.
PPM
shall be the Scheduling Coordinator with the CAISO for the Facilities (or MMC,
as applicable) during the term. MMC hereby indemnifies and agrees to hold PPM
harmless from all liabilities associated with so serving, including any charges
later assessed to the marketplace or certain classes of participants in the
marketplace as a whole by CAISO, except to the extent such liabilities result
from the gross negligence, fraud, or willful misconduct of PPM. PPM will perform
its scheduling services hereunder as Scheduling Coordina¬tor as defined in the
CAISO Tariff and pursuant to and consistent with the CAISO tariffs, protocols,
operating procedures, and scheduling practices. PPM will provide these services
in accordance with industry practice and the CAISO Protocols.
8.1.1. PPM
shall
pass through and ▇▇▇▇ MMC as part of Energy Costs for all
CAISO
fees, penalties and charges attributable to the services provided by PPM to
MMC
as Scheduling Coordinator. Subject to the provisions of Section 8.1, MMC shall
be responsible for all CAISO fees, penalties and charges, including Grid
Management Charges (“GMC”) applied to deviation amounts, market transmission
transaction charges, including minimum load cost compensation charges,
uninstructed energy settlements, congestion charges, allocation of excess and
intermit-tent resources net deviation allocation charge, and associated credit
charges.
8.1.2. MMC
shall
assume all liability and reimburse PPM for any for any fees, penalties,
liabilities, assessments, or charges assessed by the CAISO that are part of
Energy Costs whether billed to PPM or MMC, or that are incurred by PPM as a
result of MMC’s negligent action failure to abide by the CAISO Tariff and CAISO
Protocols. MMC and PPM shall cooperate to minimize imbalances and fees,
liabilities, assessments, or similar charges assessed by the CAISO to the extent
possible.
8.2 Contract
Marketer.
With
respect to all of MMC’s contracts and rights with respect to gas and gas
transportation, PPM will be designated as “Contract Marketer” as defined by the
appropriate tariffs as may be changed from time to time. MMC will indemnify
and
hold PPM harmless from all liabilities associated with so serving.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
18
SECTION
9
FURTHER
COVENANTS RESPECTING ENERGY
9.1 Liquidated
Damages.
In
addition to all other amounts due hereunder, and notwithstanding any provision
to the contrary in the EEI Agreement or any definition or product definition
therein or transaction thereunder, MMC shall pay PPM “Liquidated Damages”
representing the cost to PPM of replacement Power Products, local distribution
company charges or CAISO charges or penalties to cover a Forced Outage from
a
Facility, or any part thereof, or fees, penalties, charges, costs or losses
otherwise incurred by PPM due to any action or inaction by MMC personnel, agents
or contractors, or failures of MMC automatic dispatch systems, or failure of
MMC
internal or external communications, or default under or termination of this
Agreement, except to the extent such action or inaction was a result of or
in
connection with the fraud, willful misconduct, or gross negligence of PPM.
Without limiting the generality of the foregoing, MMC understands that Power
Products may be remarketed by PPM in a manner that may render PPM liable to
others for damages for such Power Products or parts thereof that are financially
firm even if unit contingent, and that MMC is liable hereunder to reimburse
PPM
for any costs or losses for failure to deliver such Power Products or part
thereof as Liquidated Damages. Liquidated Damages shall also include amounts
due
from MMC denominated as such pursuant to Section 10.1. MMC shall be responsible
for Liquidated Damages for periods respecting which the Facilities are reported
by MMC as available but do not perform as expected, and result in actual
Liquidated Damages to PPM.
9.2 Title
and Risk of Loss of Net Output.
MMC
shall deliver Net Output free and clear of all liens, claims and encumbrances.
Title to and risk of loss of all Net Output shall transfer from MMC to PPM
upon
its delivery to PPM at the Delivery Point. MMC shall be deemed to be in
exclusive control of, and responsible for, any damage or injury caused by,
all
energy up to and at the Delivery Point. PPM shall be deemed to be in exclusive
control of, and responsible for, any damages or injury caused by, Net Output
from the Delivery Point.
9.3 Further
Assurances.
At
PPM’s request, the Parties shall execute such documents and instruments as may
be reasonably required to effect recognition and transfer of the Power Products
to PPM.
SECTION
10
FURTHER
COVENANTS RESPECTING NATURAL GAS,
10.1 Fuel
Price.
PPM
shall cause to be delivered or made available to the Facilities a quantity
of
gas equal to 100% of the total quantity of gas in MMbtu actually burned, vented,
lost, unaccounted for, or otherwise used by the Facilities on such Gas Day
plus
Pipeline Variable Costs. PPM shall price all gas sold to the Facility based
on
the following parameters. ***.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
19
SECTION
11
PERFORMANCE
OF THE FACILITY
11.1 Facility
Dispatch.
Subject
to Section 4.4, MMC shall cause the Facilities to perform as directed by PPM
as
follows:
11.1.1. Dispatch
and scheduling of Power Products as determined by PPM pursuant to the terms
hereof.
11.1.2. Facility
turbine starts, as determined by PPM.
11.1.3. Facility
turbine ramp rates, as each Facility is technically capable of
performing.
11.2 Costs
and Charges.
MMC
shall be responsible for paying or satisfying when due all costs or charges
imposed in connection with the scheduling and delivery of Net Output up to
and
at the Delivery Point, including transmission costs, Transmission Service,
and
transmission line losses. Without limiting the generality of the foregoing,
MMC
shall bear all costs associated with the modifications to Interconnection
Facilities or the System (including system upgrades).
11.3 Costs
of Ownership and Operation.
Without
limiting the generality of any other provision hereof, MMC shall be solely
responsible for paying when due (a) all costs of owning and operating the
Facility in compliance with existing and future Requirements of Law and the
terms and conditions hereof, and (b) all taxes and charges (however
characterized) now existing or hereinafter imposed on or with respect to the
Facilities, its operation, or on or with respect to emissions or other
environmental impacts of the Facilities, including any such tax or charge
(however characterized) to the extent payable by a generator of such
energy.
11.4 Station
Service.
MMC
shall be responsible for arranging and obtaining, at its sole risk and expense,
any station service required by the Facilities.
11.5 Taxes.
MMC
shall pay or cause to be paid when due, or reimburse PPM for, all existing
and
any new sales, use, excise, ad valorem, and any other similar taxes, imposed
or
levied by any Governmental Authority on the generation or on the sale of Power
Products, regardless of whether such taxes are imposed on PPM or MMC under
Requirements of Law.
11.6 Standard
of Facility Operation.
11.6.1. General.
At
MMC’s sole cost and expense, MMC shall operate, maintain and repair the Facility
and the Interconnection Facilities in accordance with (i) the applicable and
mandatory standards, criteria and formal guidelines of FERC and any Electric
System Authority; (ii) the Required Facility Documents; (iii) the Generation
Interconnection Agreement; (iv) all Requirements of Law; (v) the requirements
hereof, and (vi) Prudent Electrical Practice.
11.6.2. CAISO
Standards.
PPM and
MMC shall perform all generation, scheduling and transmission services in
compliance with all applicable operating policies, criteria, rules, guidelines
and tariffs of the CAISO and Prudent Electrical Practices. MMC shall comport
and
comply with any conditions, modifications, amendments or additions to the
applicable CAISO Tariff and protocols.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
20
11.7 Fines
and Penalties.
11.7.1. MMC
shall
pay when due all fines, penalties, or legal costs incurred by MMC or for which
MMC is legally responsible for noncompliance by MMC, its agents, employees,
contractors or subcontractors, with respect to any provision hereof, any
agreement, commitment, obligation or liability incurred in connection with
this
Agreement or the Facility or any Requirements of Law, except where such fines,
penalties or legal costs are being contested in good faith by MMC, its agents
or
contractors through appropriate proceedings and MMC has set aside and funded
adequate reserves or posted security to cover such fines, penalties or legal
costs in the event of an adverse determination to the extent required under
generally accepted accounting principles.
11.7.2. If
fines,
penalties, or legal costs are assessed against PPM by any Governmental Authority
due to noncompliance by MMC with any Requirements of Law, or if the performance
of MMC is delayed or stopped by order of any Governmental Authority due to
MMC’s
noncompliance with any Requirements of Law, MMC shall indemnify and hold
harmless PPM against any and all losses, liabilities, damages, and claims
suffered or incurred by PPM as a result (except to the extent MMC’s
non-compliance resulted from or was in connection with the gross negligence,
fraud, or willful misconduct of PPM).
11.7.3. MMC
shall
reimburse PPM for all fees, damages, or penalties imposed on PPM by any
Governmental Authority, other person or to other utilities for violations to
the
extent caused by a default by MMC or a failure of performance by MMC hereunder
(except to the extent MMC’s default or failure to perform was caused by or
resulted from the gross negligence, fraud, or willful misconduct of
PPM).
11.8 Interconnection.
MMC
shall be responsible for the costs and expenses associated with interconnection
of the Facility at the Delivery Point, including the costs of any System
upgrades beyond the Delivery Point necessary to interconnect the Facility with
System and to allow the delivery of energy to the Delivery Point. MMC agrees
that it shall have no claims hereunder against PPM with respect to any
requirements imposed by or damages caused by (or allegedly caused by) acts
or
omissions of Interconnection Provider, in connection with the Generation
Interconnection Agreement or otherwise.
11.9 Coordination
with System.
MMC
shall be responsible for the coordination and synchronization of the Facility’s
equipment with the System, and shall be solely responsible for (and shall defend
and hold PPM harmless against) any damage that may occur as a direct result
of
MMC’s breach of the Generation Interconnection Agreement, except to the extent
MMC’s breach was caused by or was a result of the gross negligence, fraud, or
willful misconduct of PPM).
11.10 Outages.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
21
11.10.1. Planned
Outages.
Except
as otherwise provided herein, MMC shall only schedule Planned Outage during
the
months of March, April and May, except to the extent a Planned Outage is
reasonably required (i) to enable a vendor to satisfy a guarantee requirement
in
a situation in which the vendor is not otherwise able to perform the guarantee
work at a time other than during one of the months specified above or (ii)
to
comply with Prudent Electrical Practices and such work is not otherwise
reasonably able to be performed during the above-specified months. MMC shall
provide PPM with an annual forecast of Planned Outages for each Contract Year
at
least one month, but no more that three months, before the first day of that
Contract Year, and shall promptly update such schedule, or otherwise change
it
only to the extent that MMC is reasonably required to change it in order to
comply with Prudent Electrical Practices.
11.10.2. Maintenance
Outages.
If MMC
reasonably determines that it is necessary to schedule a Maintenance Outage,
MMC
shall notify PPM of the proposed Maintenance Outage as soon as practicable
but
in any event at least five days before the Outage begins. Upon such notice,
the
Parties shall plan the Maintenance Outage to mutually accommodate the reasonable
requirements of MMC and the service obligations of PPM; provided,
however,
that
MMC shall take all reasonable measures and use best efforts consistent with
Prudent Electrical Practices to not schedule any Maintenance Outage during
the
months of March, April and May. Notice of a proposed Maintenance Outage shall
include the expected start date and time of the Outage, the amount of generation
capacity of the Facility that will not be available, and the expected completion
date and time of the Outage. MMC shall give PPM notice of the Maintenance Outage
within ten minutes after MMC determines that the Maintenance Outage is
necessary. PPM shall promptly respond to such notice and may request reasonable
modifications in the schedule for the Outage. MMC shall use all reasonable
efforts to comply with any request to modify the schedule for a Maintenance
Outage provided that such change has no substantial impact on MMC. MMC shall
notify PPM of any subsequent changes in generation capacity available to PPM
as
a result of such Maintenance Outage or any changes in the Maintenance Outage
completion date and time. As soon as practicable, any notifications given orally
shall be confirmed in writing. MMC shall take all reasonable measures and
exercise its best efforts consistent with Prudent Electrical Practices to
minimize the frequency and duration of Maintenance Outages.
11.10.3. Forced
Outages.
MMC
shall within ten minutes provide to PPM an oral report, via telephone to a
number specified by PPM, of any Forced Outage of the Facility. This report
shall
include the amount of the generation capacity of the Facility that will not
be
available because of the Forced Outage and the expected return date of such
generation capacity. MMC shall within ten minutes update the report as necessary
to advise PPM of changed circumstances. MMC shall take all reasonable measures
and exercise its best efforts consistent with Prudent Electrical Practices
to
avoid Forced Outages and to minimize their duration.
11.10.4. Notice
of Deratings and Outages.
Without
limiting the foregoing, MMC will inform PPM, via telephone to a number specified
by PPM, of any major limitations, restrictions, Deratings or Outages known
to
MMC affecting the Facility for the following day and will within ten minutes
update MMC’s notice to the extent of any material changes in this
information.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
22
11.11 Expansion.
If MMC
elects to increase, at its own expense, the ability of the Facility to deliver
Net Output through any means, including replacement or modification of turbines
or related infrastructure, such Facility as modified shall be subject to the
terms hereof, provided that the Monthly Fee shall be increased by the same
percentage by which the Net Output capability of the Facility was
increased.
SECTION
12
FACILITY
INFORMATION
12.1 Metering.
Metering shall be performed at the location and in the manner specified in
the
Generation Interconnection Agreement. All quantities of energy purchased shall
reflect Net Output. MMC shall bear all costs relating to all metering
equipment.
12.2 Meter
Data.
Upon
written request by PPM, MMC shall promptly request the Interconnection Provider
or Transmission Provider in writing to provide any and all meter or other data
associated with the Facility and Net Output directly to PPM. PPM shall have
the
right to provide such data to any Electric System Authority.
12.3 PPM’s
Right to Monitor.
During
the Term, MMC shall permit PPM and its advisors and consultants to perform
such
examinations, inspections, and quality surveillance as, in PPM’s reasonable
judgment, are appropriate and advisable, provided such activities take place
during business hours and after no less than three days’ written
notice.
12.4 Exculpation.
PPM is
under no obligation to exercise any of these monitoring rights provided for
herein and, having exercised any such rights, is under no obligation to
communicate or take action with respect to any information discovered as a
result of monitoring. Without limiting the generality of the foregoing, although
PPM will in good faith pass on to MMC information discovered of which it becomes
aware, PPM shall have no liability to MMC for failing to advise it or
incorrectly advising it, of associated activities or omissions, including any
condition, damages, circumstances, infraction, fact, act, omission or disclosure
discovered or not discovered by PPM with respect to the Facility or any
contractor.
12.5 Electronic
Communications.
MMC
shall provide such real time data to PPM on the same basis on which MMC receives
the data (e.g., if MMC receives the data in four second intervals, PPM shall
also receive the data in four second intervals). MMC shall install a dedicated
direct communication circuit (which may be by common carrier telephone or
internet connection) between PPM and the control center in the Facility’s
control room or such other communication equipment as the Parties may agree.
MMC
shall maintain an electronic fault log of operations of the Facility during
each
hour of the Term commencing on the Commercial Operation Date. MMC shall provide
PPM with a copy of the electronic fault log within 30 days after the end of
the
calendar month to which the fault log applies.
12.6 Maintenance
Information.
MMC
shall provide to PPM a report summarizing the results of maintenance performed
during each Maintenance Outage, Planned Outage, and any Forced Outage, and
upon
request of PPM any of the technical data obtained in connection with such
maintenance;
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
23
12.7 Documents
to Governmental Authorities.
After
sending or filing any statement, application, and report or any document with
any Governmental Authority or Electric System Authority relating to operation
and maintenance of the Facility, MMC shall promptly provide to PPM a copy of
the
same.
12.8 Notice
of Material Adverse Events.
MMC
shall promptly notify PPM of receipt of written notice or actual knowledge
by
MMC of the occurrence of any event of default under any material agreement
to
which MMC is a party and of any other development, financial or otherwise,
which
would have a material adverse effect on MMC or a Facility.
12.9 Notice
of Litigation.
Following its receipt of written notice or actual knowledge of the commencement
of any action, suit, and proceeding before any court or Governmental Authority
which would, if adversely determined, materially and adversely affect the
ability of MMC, MMCC, or MMCE to perform its obligations under this Agreement
or
cause a Material Adverse Effect, MMC shall promptly give notice to PPM of the
same.
12.10 Additional
Information.
MMC
shall provide to PPM such other information respecting the condition or
operations of MMCC, MMCE or the Facilities as PPM may, from time to time,
reasonably request.
12.11 Financial
and Accounting Information.
If PPM
or one of its Affiliates determines that, under the Financial Accounting
Standards Board’s revised Interpretation No. 46, Consolidation of Variable
Interest Entities (“FIN 46”), it may hold a variable interest in MMC, but it
lacks the information necessary to make a definitive conclusion, MMC hereby
agrees to provide sufficient financial and ownership information so that PPM
or
its Affiliate may confirm whether a variable interest does exist under FIN
46.
If PPM or its Affiliate determines that, under FIN 46, it holds a variable
interest in MMC, MMC hereby agrees to provide sufficient financial and other
information to PPM or its Affiliate so that PPM may properly consolidate the
entity in which it holds the variable interest and/or present the disclosures
required by FIN 46. PPM shall reimburse MMC for MMC’s reasonable costs and
expenses, if any, incurred in connection with PPM’s requests for information
under this Section. Notwithstanding the foregoing, MMC and PPM acknowledge
and
agree that, in the event of such a determination, they shall endeavor to make
such commercially reasonable amendments or modifications to this Agreement
so as
to avoid such treatment under FIN 46.
12.12 Access
Rights.
Upon
reasonable prior notice and subject to the prudent safety requirements of MMC,
MMC shall provide PPM and its authorized agents, employees and inspectors with
reasonable access during business hours to the Facilities for all
purposes.
SECTION
13
CREDIT
13.1 Default
Security.
Within
five days of the Effective Date, and continuing at all times until 98 days
following the end of the Term, MMC shall post and maintain in favor of PPM
a
Letter of Credit in the amount of $***.
If MMC
fails to pay any amount due to PPM within the time provided for payment
hereunder, PPM shall be entitled to and shall draw upon the Letter of Credit
from time to time an amount equal to the amount unpaid, and MMC shall be
required to replenish or reinstate the Letter of Credit up to the amount
specified in this Section. Without limiting its other remedies hereunder,
subject to the provisions set forth herein, PPM shall also be entitled to draw
upon the Letter of Credit for damages arising if this Agreement is terminated
because of MMC’s default.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
24
13.2 Annual
and Quarterly Financial Statements.
If
requested by PPM from time to time, MMC shall provide PPM with copies of its
most recent annual and quarterly financial statements prepared in accordance
with generally accepted accounting principles; provided, however, to the extent
such financial statements are, or will be, otherwise publicly available, PPM
shall obtain the financial statement through such publicly available
sources.
13.3 Security
is Not a Limit on MMC’s Liability.
The
security contemplated by this Section: (a) constitutes security for, but is
not
a limitation of, MMC’s obligations hereunder, and (b) shall not be PPM’s
exclusive remedy for MMC’s failure to perform in accordance with this
Agreement.
SECTION
14
▇▇▇▇▇▇▇▇,
COMPUTATIONS AND PAYMENTS
14.1 Payment
Settlement.
Settlement of all payments shall occur by the 25th
day of
the month following the month in which performance was rendered and if such
25th
day is
not a business day then on the next business day occurring after such
25th
day;
provided, however, that all such settlements shall be subject to adjustment
when
the true costs are received from the CAISO, generally 90 days from the end
of a
month, but in no event shall an adjustment be made more than one year after
the
end of the applicable month.
14.2 Offsets.
PPM may
offset any payment due hereunder against amounts owing from MMC to PPM pursuant
hereto or any other agreement between the Parties.
14.3 Interest
on Late Payments.
Any
amounts that are not paid when due hereunder shall bear interest at the Contract
Interest Rate from the date due until paid.
14.4 Disputed
Amounts.
If
either Party, in good faith, disputes any amount due pursuant to an invoice
rendered hereunder, such Party shall notify the other Party of the specific
basis for the dispute and, if the invoice shows an amount due, shall pay that
portion of the statement that is undisputed, on or before the due date. Any
such
notice shall be provided within one year of the date of the invoice in which
the
error first occurred. If any amount disputed by such Party is determined to
be
due the other Party, or if the Parties resolve the payment dispute, the amount
due shall be paid within five days after such determination or resolution,
along
with interest at the Contract Interest Rate from the date due until the date
paid.
14.5 Audit
Rights.
Each
Party, through its authorized representatives, shall have the right, at its
sole
expense upon reasonable notice and during normal business hours, to examine
and
copy the records of the other Party to the extent reasonably necessary to verify
the accuracy of any statement, charge or computation made hereunder or to verify
the other Party’s performance of its obligations hereunder. Upon request, each
Party shall provide to the other Party statements evidencing the quantities
of
energy delivered at the Delivery Point. If any statement is found to be
inaccurate, a corrected statement shall be issued and any amount due thereunder
will be promptly paid and shall bear interest at the Contract Interest Rate
from
the date of the overpayment or underpayment to the date of receipt of the
reconciling payment. Notwithstanding the foregoing, no adjustment shall be
made
with respect to any statement or payment hereunder unless a Party questions
the
accuracy of such payment or statement within two years after the date of such
statement or payment.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
25
SECTION
15
DEFAULTS
AND REMEDIES
15.1 Defaults
by Either Party.
The
occurrence of any of the following constitutes an event of default by that
Party:
15.1.1. A
Party’s
failure to make a payment when due hereunder if the failure is not cured within
ten days after such payment is due.
15.1.2. A
Party
(i) makes an assignment for the benefit of its creditors; (ii) files a petition
or otherwise commences, authorizes or acquiesces in the commencement of a
proceeding or cause of action under any bankruptcy or similar law for the
protection of creditors, or has such a petition filed against it and such
petition is not withdrawn or dismissed within 60 days after such filing; (iii)
becomes insolvent; or (iv) is unable to pay its debts when due.
15.1.3. A
Party’s
breach of a representation or warranty made by that Party herein if the breach
is not cured within 30 days after the non-defaulting Party gives the defaulting
Party a notice of the default.
15.1.4. An
Event
of Default under an EEl Agreement.
15.1.5. A
Party
otherwise fails to perform any material obligation imposed upon that Party
by
this Agreement if the failure is not cured within 30 days after the
non-defaulting Party gives the defaulting Party notice of the default; provided,
however, that, upon written notice from the defaulting Party, this 30 day period
shall be extended by an additional 60 days if (a) the failure cannot reasonably
be cured within the 30 day period despite diligent efforts, (b) the default
is
capable of being cured within the additional 60 day period, and (c) the
defaulting Party commences the cure within the original 30 day period and is
at
all times thereafter diligently and continuously proceeding to cure the
failure.
15.2 Defaults
by MMC.
The
occurrence of any of the following constitutes an event of default by
MMC:
15.2.1. MMC’s
failure to post, increase, maintain or replenish the Letter of
Credit.
15.2.2. MMC’s
default under any agreement with third parties relating to the ownership,
interconnection, operation, transmission from, maintenance or repair of the
Facility, and failure to cure such default within the time required under such
agreement, after the expiration of applicable notice, cure and waiver periods,
if such default results in a Material Adverse Effect.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
26
15.2.3. MMC’s
receipt of notice of foreclosure of the Facility or any part thereof by a
lender, mechanic or materialman, or any other holder of an unpaid lien or other
charge or encumbrance if the same results in a Material Adverse
Effect.
15.2.4. MMC
otherwise causes a Material Adverse Effect on PPM.
15.2.5. Violation
of General Order 167.
15.2.6. MMC’s
sale of any Power Products from a Facility to a party other than
PPM.
15.2.7. MMC’s
failure to maintain any Material Facility Document, after the expiration of
applicable notice, cure and waiver periods.
15.3 Termination
and Remedies.
Upon
the occurrence of, and during the continuation of, an event of default
hereunder, the non-defaulting Party shall be entitled to all remedies available
hereunder and at law or in equity, and may terminate this Agreement by notice
to
the other Party designating the date of termination and delivered to the
defaulting Party no less than ten days before such termination date. Further,
during the continuation of default by MMC, and until it has recovered all
damages incurred on account of such default by MMC, without exercising its
termination right, PPM may offset its damages against any payment due MMC.
The
rights contemplated by this Agreement are cumulative and not exclusive such
that
the exercise of one or more rights shall not constitute a waiver of any other
rights. In the event of a termination hereof, each Party shall pay or turn
over
to the other all amounts due the other hereunder for all periods prior to
termination, subject to offset by the non-defaulting Party against damages
incurred by such Party. The provisions of Sections 1, 6.5, 6.7, 8, 9, 11.7,
11.9, 12.11, 13.1, 14, 15.3, 16, 20, 21 and 25 shall survive the termination
hereof.
SECTION
16
INDEMNIFICATION
AND LIMITS ON LIABILITY
16.1 Indemnities.
16.1.1. Indemnity
by MMC.
MMC
shall release, indemnify and hold harmless PPM, its directors, officers, agents,
and representatives against and from the claims of any third party for any
and
all loss, fines, penalties, claims, actions or suits, including costs and
attorney’s fees, both at trial and on appeal, whether or not suit is brought,
resulting from, or arising out of or in any way connected with (i) the
performance by MMC of its obligations hereunder, (ii) any violation of General
Order 167, and (iii) the existence, discovery, release or discharge of any
environmental contamination on or under the Premises, including any loss, claim,
action or suit, for or on account of injury, bodily or otherwise, to, or death
of, persons, or for damage to, or destruction or economic loss of property,
excepting only to the extent such loss, claim, action or suit as may be caused
by the fault, fraud, or gross negligence of PPM, its directors, officers,
employees, agents or representatives.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
27
16.1.2. Indemnity
by PPM.
PPM
shall release, indemnify and hold harmless MMC, its directors, officers, agents,
and representatives against and from the claims of any third party for any
and
all loss, fines, penalties, claims, actions or suits, including costs and
attorney’s fees, both at trial and on appeal, whether or not suit is brought,
resulting from, or arising out of or in any way connected with the performance
by PPM of its obligations hereunder, including any loss, claim, action or suit,
for or on account of injury, bodily or otherwise, to, or death of, persons,
or
for damage to, or destruction or economic loss of property, excepting only
to
the extent such loss, claim, action or suit as may be caused by the fault,
fraud, or gross negligence of MMC, its directors, officers, employees, agents
or
representatives.
16.2 Limitation
on Damages.
IN
NO
EVENT SHALL THE LIABILITY OF PPM FOR ANY AND ALL BREACHES OR DEFAULTS BY IT
HEREUNDER OR UNDER AN EEI AGREEMENT, OR UNDER ANY DOCUMENT, INSTRUMENT OR
TRANSACTION ENTERED INTO IN CONNECTION HEREWITH OR THEREWITH, EXCEED
$***
IN THE
AGGREGATE. EXCEPT TO THE EXTENT SUCH DAMAGES ARE INCLUDED IN ANY LIQUIDATED
DAMAGES, INDEMNIFICATION FOR THIRD PARTY DAMAGES, OR OTHER SPECIFIED MEASURE
OF
DAMAGES EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR SPECIAL, PUNITIVE, INDIRECT, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, OR EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER SUCH
DAMAGES ARE ALLOWED OR PROVIDED BY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, STATUTE OR OTHERWISE. THERE
IS
NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY
AND
ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS
REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE
ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF
DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE
LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT
LAW
OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY
PROVIDED HEREIN OR IN A TRANSACTION, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO
DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE
WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED, IT IS THE INTENT OF THE PARTIES THAT
THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT
REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF
ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED,
THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE
DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM
OR LOSS. NOTHING IN THIS SECTION RESTRICTS OR LIMITS THE OBLIGATIONS OF MMC
ARISING PURSUANT TO SECTIONS 8 OR 9.1 HEREOF.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
28
SECTION
17
INSURANCE
17.1 Required
Policies and Coverages.
Without
limiting any liabilities or any other obligations of MMC hereunder, MMC shall
secure and continuously carry with an insurance company or companies rated
not
lower than “A-” by the A.M. Best Company the insurance coverage specified on
Exhibit 17 during the periods specified on Exhibit 17.
17.2 Certificates
and Certified Copies of Policies.
MMC
shall provide PPM with a certified “true and correct” copy of the insurance
policies, provisions and endorsements contemplated by Exhibit 17 within ten
days
after the date by which such policies are required to be obtained (as set forth
in Exhibit 17). The certificate (a) shall not include the legend “certificate is
not evidence of coverage” or any statement with similar effect, (b) the insurer
shall have a firm obligation to provide PPM with 30 days’ prior written notice
of coverage modifications (not merely an obligation to “endeavor” or words of
similar effect), and (c) shall be endorsed by a person who has authority to
bind
the insurer. Within 30 days after the date by which such policies are required
to be obtained, MMC shall provide PPM with a certified “true and correct” copy
of the insurance policies, provisions and endorsements contemplated by Exhibit
17. If any coverage is written on a “claims-made” basis, the certification
accompanying the policy shall conspicuously state that the policy is “claims
made.”
SECTION
18
FORCE
MAJEURE
18.1 Definition
of Force Majeure.
“Force
Majeure” or “an event of Force Majeure” means an event that (a) is not
reasonably anticipated as of the date hereof, (b) is not within the reasonable
control of the Party affected by the event, (c) is not the result of such
Party’s negligence or failure to act, and (d) could not be overcome by the
affected Party’s use of due diligence in the circumstances. Force Majeure
includes, but is not restricted to, events of the following types (but only
to
the extent that such an event, in consideration of the circumstances, satisfies
the tests set forth in the preceding sentence): acts of God; fire; explosion;
civil disturbance; sabotage; action or restraint by court order or Governmental
Authority not arising out of failure to obtain a Required Facility Document
(as
long as the affected Party has not applied for or assisted in the application
for, and has opposed to the extent reasonable, such court or government action).
Notwithstanding the foregoing, none of the following constitute Force Majeure:
(i) Fuel Cost or availability of fuel to operate the Facility; (ii) economic
hardship, including lack of money; (iii) for an MMC claim of Force Majeure,
delay or failure of MMC to obtain any Required Facility Document; (iv) MMC’s
ability to sell the Power Products at a price greater than the price set forth
in this Agreement; or (v) a Forced Outage not caused by a Force Majeure
event.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
29
18.2 Force
Majeure Does Not Affect Other Obligations.
No
obligations of either Party that arose before the Force Majeure causing the
suspension of performance or that arise after the cessation of the Force Majeure
shall be excused by the Force Majeure. The Monthly Fee shall continue to be
due
and payable during the pendency of a Force Majeure. In no event shall a Force
Majeure or a Forced Outage excuse MMC from paying Liquidated Damages or the
Unwind Fee whenever applicable.
SECTION
19
NOTICES
19.1 Addresses
and Delivery Methods.
All
notices, requests, statements or payments shall be made to the addresses set
out
below. Notices required to be in writing shall be delivered by letter, facsimile
or other documentary form. Notice by facsimile or hand delivery shall be deemed
to have been given when received or hand delivered. Notice by overnight mail
or
courier shall be deemed to have been given on the date and time evidenced by
the
delivery receipt.
|
To
MMC
|
▇▇▇▇▇
▇▇▇▇▇▇
Chief
Financial Officer
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefacsimile:
(▇▇▇) ▇▇▇-▇▇▇▇ fax
|
|
with
a copy to:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
DLA
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefacsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
To
PPM:
|
PPM
Energy, Inc.
▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Contract Administration
Telefacsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
with
a copy to:
|
PPM
Energy, Inc.
▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Legal
Department
Attention:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telefacsimile:
(▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
30
19.2 Changes
of Address.
The
Parties may change any of the persons to whom such notices are addressed, or
their addresses, by providing written notices thereof in accordance with this
Section.
SECTION
20
CONFIDENTIALITY
20.1 Confidential
Business Information.
The
following constitutes “Confidential Business Information,” whether oral or
written: (a) the Parties’ proposals and negotiations concerning this Agreement,
made or conducted prior to the date hereof, (b) this Agreement and the terms
hereof, (c) information provided hereunder, (d) the matters learned by MMC
in
connection with performance of the Protocols, (e) the matters learned by PPM
in
connection with the Facilities’ operations, and (f) any information ever
delivered by PPM to MMC relating to the market prices of energy and
methodologies for their determination or estimation. MMC and PPM each agree
to
hold such Confidential Business Information wholly confidential. Such
Confidential Business Information may only be used by the Parties for purposes
related to the approval, administration or enforcement hereof and for no other
purpose.
20.2 Duty
to Maintain Confidentiality.
Each
Party agrees not to disclose Confidential Business Information to any other
person (other than its Affiliates, counsel, consultants, lenders, prospective
lenders, purchasers, prospective purchasers, contractors providing services
to
the Facility, employees, officers and directors who agree to be bound by the
provisions of this Section), without the prior written consent of the other
Party, provided that either Party may disclose Confidential Business
Information, if and to the extent such disclosure is required: (i) by
Requirements of Law, (ii) pursuant to an order of a court or regulatory agency,
or (iii) in order to enforce this Agreement or to seek approval hereof. In
the
event a Party is required by law or by a court or regulatory agency to disclose
Confidential Business Information, such Party shall to the extent possible
notify the other Party at least three Business Days in advance of such
disclosure.
20.3 Proprietary
Trade Secrets.
MMC
understands that this Agreement and the structure of the provision of the
Services hereunder constitutes a proprietary trade secret and know-how of PPM,
and that disclosure thereof in any manner other than in the course of the
performance of its terms would damage if not destroy the value thereof to
PPM.
20.4 Press
Releases.
Each
Party agrees not to issue any press release or other public announcement of
the
relationship of the Parties or the terms hereof without the express prior
written consent of the other Party.
20.5 Irreparable
Injury; Remedies.
Each
Party agrees that violation of the terms of this Section constitutes irreparable
harm to the other, and that the harmed Party may seek any and all remedies
available to it at law or in equity, including injunctive relief.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
31
SECTION
21
DISAGREEMENTS
21.1 Negotiations.
The
Parties shall attempt in good faith to resolve all disputes arising out of,
related to or in connection with this Agreement promptly by negotiation, as
follows. Any Party may give the other Party written notice of any dispute not
resolved in the normal course of business. Executives of the Parties at levels
one level above the personnel who have previously been involved in the dispute
shall meet at a mutually acceptable time and place within ten days after
delivery of such notice, and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve the
dispute. If the matter has not been resolved within 30 days after the referral
of the dispute to such senior executives, or if no meeting of such senior
executives has taken place within 15 days after such referral, either Party
may
initiate litigation as provided hereinafter if neither Party has requested
that
the dispute be mediated in accordance with Section 21.2 below. All negotiations
pursuant to this Section are confidential.
21.2 Mediation.
If the
dispute is not resolved within 30 days after the referral of the dispute to
senior executives, or if no meeting of senior executives has taken place within
15 days after such referral, either Party may request that the matter be
submitted to nonbinding mediation. If the other Party agrees, the mediation
will
be conducted in accordance with the Construction Industry Arbitration Rules
and
Mediation Procedures (Including Procedures for Large, Complex Construction
Disputes) of the American Arbitration Association (the “AAA”), as amended and
effective on July 1, 2003 (the “Mediation Procedures”), notwithstanding any
Dollar amounts or Dollar limitations contained therein.
(a) The
Party
requesting the mediation may commence the mediation process with AAA by
notifying AAA and the other Party in writing (“Mediation Notice”) of such
Party’s desire that the dispute be resolved through mediation, including
therewith a copy of the Dispute Notice and the response thereto, if any, and
a
copy of the other Party’s written agreement to such mediation.
(b) The
mediation shall be conducted through, by and at the office of AAA located in
Portland, Oregon.
(c) The
mediation shall be conducted by a single mediator. The Parties may select any
mutually acceptable mediator. If the Parties cannot agree on a mediator within
five days after the date of the Mediation Notice, then the AAA’s Arbitration
Administrator shall send a list and resumes of three available mediators to
the
Parties, each of whom shall strike one name, and the remaining person shall
be
appointed as the mediator. If more than one name remains, either because one
or
the other Parties have failed to respond to the AAA’s Arbitration Administrator
within five days after receiving the list or because one or the other Parties
have failed to strike a name from the list or because all Parties strike the
same name, the AAA’s Arbitration Administrator will choose the mediator from the
remaining names. If the designated mediator shall die, become incapable or,
unwilling to, or unable to serve or proceed with the mediation, a substitute
mediator shall be appointed in accordance with the selection procedure described
above in this Section 21.2(c), and such substitute mediator shall have all
such
powers as if he or she has been originally appointed herein.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
32
(d) The
mediation shall consist of one or more informal, nonbinding meetings between
the
Parties and the mediator, jointly and in separate caucuses, out of which the
mediator will seek to guide the Parties to a resolution of the dispute. The
mediation process shall continue until the resolution of the dispute, or the
termination of the mediation process pursuant to Section 21.2(f). The costs
of
the mediation, including fees and expenses, shall be borne equally by the
Parties.
(e) All
verbal and written communications between the Parties and issued or prepared
in
connection with this Section 21.2 shall be deemed prepared and communicated
in
furtherance, and in the context, of dispute settlement, and shall be exempt
from
discovery and production, and shall not be admissible in evidence (whether
as
admission or otherwise) in any litigation or other proceedings for the
resolution of the dispute.
(f) The
initial mediation meeting between the Parties and the mediator shall be held
within 20 days after the Mediation Notice. Either Party may terminate the
mediation process upon or after the earlier to occur of (A) the failure of
the
initial mediation meeting to occur within 20 days after the date of the
Mediation Notice, (B) the passage of 30 days after the date of the Mediation
Notice without the dispute having been resolved, or (C) such time as the
mediator makes a finding that there is no possibility of resolution through
mediation.
(g) All
deadlines specified in this Section 21.2 may be extended by mutual
agreement.
21.3 Place
of Contract Formation; Choice of Forum.
MMC and
PPM acknowledge and agree that this Agreement has been made and entered into
as
of the date first set forth above in the City of Portland, Oregon. Each Party
irrevocably consents and agrees that any legal action or proceeding arising
out
of this Agreement or the actions of the Parties leading up to the Agreement
shall be brought exclusively in the United States District Court for the
District of Oregon, Portland Division, or if such court does not have
jurisdiction, in the Circuit Court for Multnomah County, Oregon. By execution
and delivery hereof, each Party (a) accepts the exclusive jurisdiction of such
court and waives any objection that it may now or hereafter have to the exercise
of personal jurisdiction by such court over each Party, (b) irrevocably agrees
to be bound by any final judgment (after any and all appeals) of any such court
arising out of such documents or actions, (c) irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to
the
laying of venue of any suit, action or proceedings arising out of such documents
brought in such court (including any claim that any such suit, action or
proceeding has been brought in an inconvenient forum), (d) agrees that service
of process in any such action may be effected by mailing a copy thereof by
registered or certified mail, postage prepaid, to such Party at its address
as
set forth herein, and (e) agrees that nothing herein shall affect the right
to
effect service of process in any other manner permitted by law.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
33
21.4 Settlement
Discussions.
The
Parties agree that no statements of position or offers of settlement made in
the
course of the dispute process described in this Section will be offered into
evidence for any purpose in any litigation between the Parties, nor will any
such statements or offers of settlement shall constitute an admission or waiver
of rights by either Party in connection with any such litigation. At the request
of either Party, any such statements and offers of settlement, and all copies
thereof, shall be promptly returned to the Party providing the
same.
21.5 Waiver
of Jury Trial.
EACH
PARTY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES THE RIGHT
TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS AGREEMENT, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT EXECUTED
OR
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE
OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH OF THE PARTIES
FOR ENTERING HEREINTO. EACH PARTY HEREBY WAIVES ANY RIGHT TO CONSOLIDATE ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION WITH THIS AGREEMENT, OR ANY MATTER ARISING HEREUNDER OR THEREUNDER,
IN WHICH A JURY TRIAL HAS NOT OR CANNOT BE WAIVED.
SECTION
22
GENERAL
22.1 Parties
not Joint Venturers.
Nothing
contained herein creates an association, trust, partnership or joint venture
or
imposes a trust, partnership or fiduciary duty, obligation or liability on
or
between the Parties.
22.2 Non-Reliance.
The
Parties acknowledge and understand that PPM is not acting as a financial,
investment or commodity trading advisor for MMC and has not given MMC directly
or indirectly any assurance, guaranty or representation whatsoever as to the
merits of this Agreement or any transaction or expected performance of any
transaction. MMC acknowledges and understands that the Services and arrangements
set forth herein are not exclusive to MMC and that PPM may transact in a manner
similar as set forth herein with any other third party. MMC is not relying
upon
any advice or representations, whether written or oral, of PPM other than the
representations expressly set forth in an EEl Agreement or this Agreement.
MMC
has made and will make its own decisions, including decisions regarding the
suitability of this Agreement, based upon its own judgment and upon the advice
from such professional advisors as it deems necessary to consult. In the event
that any Services or obligation set forth in this Agreement jeopardize PPM’s
FERC market-based rate tariff, PPM shall be permitted to terminate this
Agreement immediately without fault or penalty.
22.3 Choice
of Law.
This
Agreement shall be interpreted and enforced in accordance with the laws of
the
state of Oregon, excluding any choice of law rules that may direct the
application of the laws of another jurisdiction.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
34
22.4 Legal
Compliance.
The
Parties do not intend to violate any laws governing the subject matter hereof.
If any of the terms hereof are determined to be invalid, illegal or void as
being contrary to any applicable law or public policy, all other terms of this
Agreement shall remain in effect. The Parties shall use best efforts to amend
this Agreement to reform or replace any terms determined to be invalid, illegal
or void, such that the amended terms (a) comply with and are enforceable under
applicable law, (b) give effect to the intent of the Parties in entering
hereinto, and (c) preserve the balance of the economics and equities
contemplated by this Agreement in all material respects.
22.5 Further
Assurances.
The
Parties shall execute and deliver such further documents and instruments and
take such further action as may reasonably be required to fulfill the essential
intent and purposes hereof, and to comply with its terms.
22.6 Waivers.
No
waiver of any provision hereof shall be effective unless the waiver is set
forth
in a writing that (a) expressly identifies the provision being waived, and
(b)
is signed by the Party waiving the provision. A Party’s waiver of one or more
failures by the other Party in the performance of any of the provisions hereof
shall not be construed as a waiver of any other failure or failures, whether
of
a like kind or different nature.
22.7 Restriction
on Assignments.
Except
as expressly provided in this Section 22, neither Party may assign this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other Party.
22.8 Integration
Clause.
This
Agreement and the EEI Agreements represent the entire agreement between the
Parties and it supersedes all prior agreements, proposals, representations,
negotiations, discussions or letters, whether oral or in writing, regarding
the
subject matter hereof. In the event of a conflict between this Agreement and
the
EEI Agreement, this Agreement will prevail. No modification hereof shall be
effective unless it is in writing and signed by all Parties.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their
respective names as of the date first above written.
|
MMC
ENERGY NORTH AMERICA LLC
|
PPM
ENERGY, INC.
|
|
a
Delaware limited liability company
|
an
Oregon corporation
|
|
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
|
By: /s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇
|
▇▇▇▇▇▇
Mihilik
|
|
Chief
Executive Officer
|
Vice
President, Controller
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
35
|
MMC
CHULA VISTA LLC
|
MMC
ESCONDIDO LLC
|
|
a
Delaware limited liability company
|
a
Delaware limited liability company
|
|
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
|
By:
/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇
|
▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
36
EXHIBIT
M
LIST
OF
MATERIAL FACILITY DOCUMENTS
Interconnection
Agreements:
|
·
|
Dispersed
Generating Company, LLC’s (assignor & successor-in-interest of RAMCO)
release of assignment of SDG&E Interconnection Agreement &
Expedited Interconnection Facilities Agreement to MMC Chula Vista,
LLC.
& MMC Escondido, LLC. Dated
4/14/2001.
|
|
·
|
Historical
notice to FERC - Expedited Interconnection Facilities Agreement between
SDG&E and RAMCO, Inc.. Covers RAMCO Escondido facility. Dated
4/26/2001.
|
|
·
|
Historical
notice to FERC - Expedited Interconnection Facilities Agreement between
SDG&E and RAMCO, Inc.. Covers RAMCO Chula Vista facility. Dated
4/26/2001.
|
Air
Permits:
|
·
|
County
of San Diego, Air Pollution Control District “Permit to Operate”. Permit
#976039 covers MMC Chula Vista, LLC, and expires February
2007.
|
|
·
|
County
of San Diego, Air Pollution Control District “Permit to Operate”. Permit
#976038 covers MMC Escondido, LLC, and expires February
2007.
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
EXHIBIT
N
NERC
EVENT TYPES
|
Event
Type
|
Description
of Outages
|
|
U11
|
Unplanned
(Forced) Outage-Immediate
-
An outage that requires immediate removal of a unit from service,
another
outage state or a Reserve Shutdown state. This type of outage results
from
immediate mechanical/electrical/hydraulic control systems trips and
operator initiated trips in response to unit alarms.
|
|
U21
|
Unplanned
(Forced) Outage-Delayed
-
An outage that does not require immediate removal of a unit from
the
in-service state but requires removal within six (6) hours. This
type of
outage can only occur while the unit is in service.
|
|
U31
|
Unplanned
(Forced) Outage-Postponed
-
An outage that can be postponed beyond six hours but requires that
a unit
be removed from the in-service state before the end of the next weekend.
This type of outage can only occur while the unit is in
service.
|
|
SF
|
Startup
Failure
-
An outage that results from the inability to synchronize a unit within
a
specified startup time period following an outage or Reserve Shutdown.
A
startup period begins with the command to start and ends when the
unit is
synchronized. An SF begins when the problem preventing the unit from
synchronizing occurs. The SF ends when the unit is synchronized or
another
SF occurs.
|
|
MO
|
Maintenance
Outage
-
An outage that can be deferred beyond the end of the next weekend,
but
requires that the unit be removed from service before the next planned
outage. (Characteristically, a MO can occur any time during the year,
has
a flexible start date, may or may not have a predetermined duration
and is
usually much shorter than a PO.)
|
|
ME
|
Maintenance
Outage Extension
-
An extension of a maintenance outage (MO) beyond its estimated completion
date. This is typically used where the original scope of work requires
more time to complete than originally scheduled. Do not use this
where
unexpected problems or delays render the unit out of service beyond
the
estimated end date of the MO.
|
|
PO
|
Planned
Outage
-
An outage that is scheduled well in advance and is of a predetermined
duration, lasts for several weeks and occurs only once or twice a
year.
(Boiler overhauls, turbine overhauls or inspections are typical planned
outages.)
|
|
PE
|
Planned
Outage Extension
-
An extension of a planned outage (PO) beyond its estimated completion
date. This is typically used where the original scope of work requires
more time to complete than originally scheduled. Do not use this
where
unexpected problems or delays render the unit out of service beyond
the
estimated end date of the PO
|
_________________________
1
These
event types are all contributors to the FOR & EFOR calculations in the
reports section.
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
Exhibit
P: Protocols
|
·
|
***
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
EXHIBIT
3.2.9
LIST
OF
REQUIRED FACILITY DOCUMENTS
Interconnection
Agreements:
|
·
|
Dispersed
Generating Company, LLC’s (assignor & successor-in-interest of RAMCO)
release of assignment of SDG&E Interconnection Agreement &
Expedited Interconnection Facilities Agreement to MMC Chula Vista,
LLC.
& MMC Escondido, LLC. Dated
4/14/2001.
|
|
·
|
Historical
notice to FERC - Expedited Interconnection Facilities Agreement between
SDG&E and RAMCO, Inc.. Covers RAMCO Escondido facility. Dated
4/26/2001.
|
|
·
|
Historical
notice to FERC - Expedited Interconnection Facilities Agreement between
SDG&E and RAMCO, Inc.. Covers RAMCO Chula Vista facility. Dated
4/26/2001.
|
Air
Permits:
|
·
|
County
of San Diego, Air Pollution Control District “Permit to Operate”. Permit
#976039 covers MMC Chula Vista, LLC, and expires February
2007.
|
|
·
|
County
of San Diego, Air Pollution Control District “Permit to Operate”. Permit
#976038 covers MMC Escondido, LLC, and expires February
2007.
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
EXHIBIT
6.1
***
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
EXHIBIT
17
REQUIRED
INSURANCE
|
·
|
***
|
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.
Contact
List Exhibit
***
***Confidential
Information has been omitted and filed separately with the Securities and
Exchange Commission pursuant to a confidential treatment request.