THIRD AMENDMENT TO THE AGREEMENT FOR THE PURCHASE OF FIRM CAPACITY AND ENERGY BETWEEN INDIANTOWN COGENERATION, L.P. AND FLORIDA POWER & LIGHT COMPANY THIRD AMENDMENT TO THE AGREEMENT FOR THE PURCHASE OF FIRM CAPACITY AND ENERGY BETWEEN INDIANTOWN...
Exhibit 10.2.23
THIRD AMENDMENT TO
THE AGREEMENT FOR
THE PURCHASE OF FIRM CAPACITY AND ENERGY
BETWEEN INDIANTOWN COGENERATION, L.P.
AND FLORIDA POWER & LIGHT COMPANY
THIRD AMENDMENT TO
THE AGREEMENT FOR
THE PURCHASE OF FIRM CAPACITY AND ENERGY
BETWEEN INDIANTOWN COGENERATION, L.P.
AND FLORIDA POWER & LIGHT COMPANY
THIS THIRD AMENDMENT TO THE AGREEMENT FOR THE PURCHASE OF FIRM CAPACITY AND ENERGY (“Third Amendment”) dated as of May __, 2001, is by and between Indiantown Cogeneration, L.P. (“ICL”) and Florida Power & Light Company (“FPL”) (individually, “Party,” and collectively, “Parties”). Unless otherwise defined herein, all capitalized terms shall have the meaning set forth in THE AGREEMENT FOR THE PURCHASE OF FIRM CAPACITY AND ENERGY BETWEEN INDIANTOWN COGENERATION, L.P. AND FLORIDA POWER & LIGHT COMPANY dated March 31, 1990, as amended by Amendment No. 1 to Agreement for the Purchase of Firm Capacity and Energy Between Indiantown Cogeneration, L.P. and Florida Power & Light Company, dated December 5, 1990 and Amendment No. 2 to Agreement for the Purchase of Firm Capacity and Energy Between Indiantown Cogeneration, L.P. and Florida Power & Light Company, dated July 15, 1992 (collectively the “Agreement”).
RECITALS
WHEREAS, FPL and ICL are Parties to a dispute that is pending before the
United States District Court for the Middle District of Florida, Orlando
Division, captioned Indiantown Cogeneration, L.P. v. Florida Power & Light
Company, Case No. 6:99-CV-317-ORL-28C (the "Litigation"), which has been stayed
by the Court;
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WHEREAS, the Parties executed a Settlement Agreement on December 19, 2000
that addressed ICL's reclosure of the Facility into the FPL system, specified
the price to be paid for Energy if ICL recloses at a time when FPL does not
desire that ICL reclose, delineated associated terms and conditions, and
required the Parties to jointly work to prepare this Third Amendment; and
WHEREAS, nothing herein or in the Settlement Agreement dated December 19,
2000 shall be construed as an admission of any kind by either Party, all such
liability being expressly denied.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Parties agree as follows:
SECTION I
DEFINITIONS
The Agreement is amended among other ways as set forth in this Third
Amendment by amending certain specified Sections or by adding the following
provisions, numbered Section 1.63 and higher, to Section 1.0 of the Agreement:
1.3 The definition of "Agreement" shall be amended to read as follows:
"this document, including APPENDIX 1 hereto, and Appendices X, X, X, X, X, X, X,
X, X, X, X, X and M, as the same may be amended from time to time in accordance
with Section 24.11."
1.62 The definition of "Unscheduled Outage" shall be amended to read as
follows: "a whole or partial interruption of the Facility's Committed Capacity,
including, but not limited to, whether the Facility is (i) committed or
decommitted by FPL or (ii) in a Reclose Period, in either case expressed in the
nearest whole MW, that does not qualify as a Scheduled Reduction."
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1.63 Accumulated Reclose Hours Account - the hours accumulated by
FPL pursuant to this Section 1.63. For the calendar year in which the Third
Amendment becomes effective, the Accumulated Reclose Hours Account balance as of
the first day of such year will be deemed to be 360 hours. As of the first day
of each subsequent calendar year, the balance of the Accumulated Reclose Hours
Account will equal the lesser of (i) the Cap (i.e., 1440 hours) or (ii) 360
hours plus the difference between the balance of the Accumulated Reclose Hours
Account existing as of the first day of the immediately prior calendar year and
the number of hours occurring in the immediately prior calendar year for which
ICL was paid or is due to be paid pursuant to Section 8.1.2, provided that such
difference shall never fall below zero. APPENDIX 1 to this Third Amendment
illustrates how the balance in the Accumulated Reclose Hours Account will be
determined as of the beginning of each calendar year. At any point within any
calendar year (after the date the Third Amendment becomes effective), the
balance in the Accumulated Reclose Hours Account will equal the difference
between the balance of the Accumulated Reclose Hours Account existing as of the
first day of such calendar year, and the number of hours to-date occurring in
such calendar year for which ICL was paid or is due to be paid pursuant to
Section 8.1.2, provided that such difference shall never fall below zero.
1.64 As-Available Energy Costs - FPL's tariff rate for as-available
energy calculated according to the methodology established pursuant to Florida
Administrative Code 25-17.0825, as it may be amended from time to time.
1.65 Cap - the maximum number of hours that FPL is permitted to have
accumulated at any time in the Accumulated Reclose Hours Account, which shall be
1440 hours.
1.66 Reclose Notice - a notice provided by ICL to FPL specifying a
time at which the Facility will be ready to reclose into FPL's system.
1.67 Reclose Period - the period of time between (a) the time the
Facility actually recloses into the FPL system and delivers Energy to FPL after
FPL has notified ICL pursuant to Section 13.3.1 that it does not desire that the
Facility reclose at the time specified in a Reclose Notice and (b) the earliest
of (i) such subsequent time the Facility Separates other than in accordance with
Section 13.3.5(a), (ii) the beginning of the first full clock-hour after FPL
exercises its Dispatch and Control Rights to request the Facility to again
produce generation at or above Minimum Load, or (iii) the beginning of the first
full hour as to which FPL advises ICL (a) FPL is ending the Reclose Period and
(b) FPL is not exercising its Dispatch and Control Rights under the Agreement.
1.68 Reclose Period Hour - any hour during a Reclose Period in which
ICL delivers Energy to FPL from the Facility, except for hours specified in
Section 13.3.5(b) below.
1.69 Separates (Separate or Separated or Separating) - any
circumstance in which the Facility is not connected to the FPL system such that
electricity has ceased to flow from the Facility to the FPL system for any
reason, including but not limited to, Major Maintenance Outages, Scheduled
Maintenance Periods, Unscheduled Outages and periods in which FPL has requested
ICL to decommit the Facility and ICL has elected not to operate the Facility.
SECTION II
BASIS FOR PAYMENTS BY FPL
2.1 The Agreement is amended by deleting Section 8.1 of the Agreement in
its entirety and replacing it with the following:
8.1 FPL shall pay ICL for each MWh of Energy as follows:
8.1.1 Except as provided in Sections 8.1.2, 8.1.3, 8.1.5,
13.3.3, or 13.3.5(b), FPL shall pay ICL for each MWh of Energy at an hourly rate
equal to the Unit Energy Payment Cost times the Unit Hourly Efficiency Factor.
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8.1.2 For each MWh of Energy delivered from the Facility to FPL during
an hour which is a Reclose Period Hour, up to and including (but not to exceed)
the number of hours in the Accumulated Reclose Hours Account as of that hour,
such Accumulated Reclose Hours to be calculated in accordance with Section 1.63
herein, FPL shall pay ICL at an hourly rate equal to FPL's actual hourly
As-Available Energy Costs, except as provided in Section 13.3.3(a).
8.1.3 For each MWh of Energy delivered from the Facility to FPL during
an hour which is a Reclose Period Hour, for the number of such hours in excess
of the number of hours in the Accumulated Reclose Hours Account as of that hour,
such Accumulated Reclose Hours to be calculated in accordance with Section 1.63
herein, FPL shall pay ICL at an hourly rate equal to the Unit Energy Payment
Cost, except as provided in Section 13.3.3(a).
8.1.4 At the end of the initial term of the Agreement, neither Party
will be liable to the other Party with respect to any remaining balance then
existing in the Accumulated Reclose Hours Account.
8.1.5 Other than as provided in Section13.3.3(a) below, FPL shall not
pay for any megawatts of Energy produced by ICL in excess of an integrated
hourly output of 100 MWh per hour during any hour of a Reclose Period.
2.2 Section 8.3 of the Agreement is amended by substituting "Sections
8.1.1, 8.1.2, 8.1.3, 8.1.5, 13.3.3 and 13.3.5" for "Section 8.1" such that it
reads as follows:
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8.3 Calculation of the Monthly Energy Payment to ICL
shall be (i) the sum, over all hours of the Monthly Billing Period, of the
product of each hour's applicable rate as set forth in Sections 8.1.1, 8.1.2,
8.1.3, 8.1.5, 13.3.3 or 13.3.5 times the purchases of Energy by FPL for that
hour, plus (ii) any applicable adjustments pursuant to Section 8.4. Any
adjustment(s) made pursuant to Section 8.4 shall not affect the hourly rate for
As Available Energy Costs paid by FPL to ICL pursuant to Section 8.1.2 above or
the payment based upon As Available Energy Costs pursuant to Section
13.3.5(b).
2.3 Section 8.8 of the Agreement is amended by adding a sentence to the end
of the paragraph such that it reads as follows:
8.8 Beginning on the Commercial Operation Date, FPL shall
pay ICL the Start-up Cost incurred by ICL as a direct result of starting the
Facility following an FPL-required shutdown of the Facility pursuant to Section
13.0 DISPATCH, CONTROL, OPERATION AND MAINTENANCE OF THE FACILITY. The payment
shall be the sum of all Start-up Costs during the Monthly Billing Period. From
the beginning of any Reclose Period until the earlier of (i) the beginning of
the first full hour after FPL exercises its Dispatch and Control Rights to
request the Facility to again produce generation at or above Minimum Load, or
(ii) the beginning of the first full hour as to which FPL advises ICL (a) FPL is
ending the Reclose Period and (b) FPL is not exercising its Dispatch and Control
Rights under the Agreement, FPL shall pay Start-up Costs as defined by Section
1.53 no more than one time and only if the Facility Separates following an
FPL-required shut down. For avoidance of doubt, FPL shall not pay Start-up Costs
if the Facility Separates as provided in Section 13.3.5(a) herein.
SECTION III
BILLING AND PAYMENT
3.1 The Agreement is amended by adding the following provisions to the
end of Section 9.1 of the Agreement:
9.1.17 The total number of Reclose Period Hours that have occurred in
that calendar year through the last day of the Monthly Billing Period;
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9.1.18 The number of (i) Reclose Period Hours in the Monthly Billing
Period during which Energy deliveries were subject to pricing pursuant to
Section 8.1.2 and (ii) hours in the Monthly Billing Period during which Energy
deliveries were subject to pricing pursuant Section 13.3.5(b), and the
As-Available Energy Costs in each hour within (i) and (ii) applicable to such
deliveries of Energy; and
9.1.19 The balance in the Accumulated Reclose Hours Account
immediately after the last day of the Monthly Billing Period.
3.2 Section 9.1.15 of the Agreement is amended by deleting the word "and",
and Section 9.1.16 of the Agreement is amended by replacing the period with ";".
SECTION IV
DISPATCH, CONTROL, OPERATION AND MAINTENANCE OF THE FACILITY
4.1 The Agreement is amended by deleting Section 13.3 of the Agreement in
its entirety and replacing it with the following provisions. Nothing in the
following provisions, unless so expressly stated therein, is intended to limit
FPL's Dispatch and Control Rights under the Agreement, including but not limited
to FPL's rights set forth in Section 13.6 and defined in Section 1.21 of the
Agreement.
13.3 If the Facility is Separated from the FPL system for any reason,
under no circumstances shall ICL reclose into FPL's system without first
obtaining FPL's specific approval, as determined by the Operating
Representatives, as follows:
13.3.1 (a) If the Facility Separates and (i) ICL proposes to
deliver Energy to FPL within four (4) hours or less from the time the Facility
Separates, ICL, to reclose into the FPL system, shall provide a Reclose Notice
to FPL as far in advance of the proposed reclosure time specified in the Reclose
Notice as is practicable and, in any event, at least thirty (30) minutes prior
to the reclosure time specified in the Reclose Notice, which proposed reclosure
time must be not more than four (4) hours from the time of Separation, or (ii)
ICL proposes to deliver Energy to FPL at a time that is more than four (4) hours
from the time the Facility Separates, ICL, to reclose into the FPL system, shall
provide notice to FPL at least three (3) hours in advance of the proposed
reclosure time specified in the Reclose Notice.
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(b) If FPL does not wish the Facility to reclose into FPL's
system at the time specified in ICL's Reclose Notice, FPL shall so notify ICL at
least fifteen (15) minutes before the time specified in the Reclose Notice if
subsection (a)(i) applies, and at least two (2) hours before the time specified
in the Reclose Notice if subsection (a)(ii) applies.
(c) If ICL continues to wish to reclose the Facility into the FPL
system after receiving the FPL notice pursuant to subsection (b), ICL shall
notify FPL of such intent as soon as possible but within five (5) minutes after
receipt of such FPL notice if subsection (a)(i) applies and within fifteen (15)
minutes after receipt of such FPL notice if subsection (a)(ii) applies. If ICL
provides the notice set forth in the preceding sentence, ICL shall have the
right to reclose the Facility into the FPL system (and FPL shall be deemed to
have granted specific approval to reclose the Facility to the FPL system) at the
time specified in the Reclose Notice and generate Energy at or below Minimum
Load (or above Minimum Load to the extent consistent with Section 13.3.2)
subject only to FPL’s right (i) to delay reclosure for up to four (4) hours
beyond the time specified in the Reclose Notice for any reason FPL chooses in
its sole interest and/or completely in its own self interest, and/or with or
without cause or justification, or for no reason at all, provided that FPL may
delay reclosure pursuant to this subsection (c)(i) only if FPL notifies ICL, as
soon as possible following receipt of ICL’s notice pursuant to the first
sentence of this subsection (c) but within five (5) minutes after receipt of
ICL’s notice if subsection (a)(i) applies and within one (1) hour if
subsection (a)(ii) applies, of such intent and designates in such notice the
time at or within the four (4) hour period that ICL can reclose into the FPL
system and (ii) to approve reclosure which approval shall be withheld only
pursuant to Section 6.3(i) or (ii) of this Agreement, provided that if reclosure
is delayed pursuant to Section 6.3(i) or (ii), FPL shall comply with the last
sentence of Section 6.3.
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(d) If ICL recloses pursuant to Section 13.3.1(c) above following
a Separation other than a Separation for a Scheduled Outage, ICL shall first
comply with the requirements of Section 13.3.2(a).
13.3.2 (a) Following any time when the Facility (i) Separates other
than for a Scheduled Outage and (ii) recloses pursuant to Section 13.3.1(c)
above, ICL shall demonstrate the Facility's Available Committed Capacity. The
Facility will have six (6) hours beginning with the first full hour following
reclosure to seek to achieve and sustain for one full clock-hour an hourly
integrated megawatt output level at or above its Committed Capacity and return
to operation at or below Minimum Load and will operate at or below Minimum Load
until (i) the end of the Reclose Period, unless the Facility Separates in
accordance with Section 13.3.5(a), or (ii) the start of a Re-demonstration
Period as described below in subsection (b). From the time of reclosure up
through the end of the sixth full hour following reclosure ("Hour Six"), ICL
shall receive credit towards its Daily Capacity Factor and Daily On-peak
Capacity Factor at its actual hourly integrated megawatt output level for each
such hour (not to exceed the Committed Capacity), unless and until the first
full hour that the hourly integrated megawatt output level is at or above
Committed Capacity ("Successful Demonstration"), in which case it shall receive
credit towards its Daily Capacity Factor and Daily On-peak Capacity Factor at
its Committed Capacity, which shall be ICL's Available Committed Capacity, for
that hour and for each full hour thereafter until the earlier of (i) the end of
the Reclose Period or (ii) a reduction in ICL's Available Committed Capacity
("Capacity Reduction"). If ICL is unable to achieve and sustain for one full
clock-hour an hourly integrated megawatt output level at or above its Committed
Capacity, then beginning in the seventh full hour following reclosure and
continuing until the earlier of (i) the end of the Reclose Period, (ii) a
Capacity Reduction, or (iii) the start of a Re-demonstration Period as described
in subsection (b) below, ICL shall receive credit at the highest hourly
integrated megawatt output level achieved by ICL during the previous full
six-hour period, which output level shall be ICL's Available Committed Capacity.
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(b) If ICL is unable to achieve a Successful Demonstration or there is
a Capacity Reduction, ICL shall have the right, upon two (2) hours notice to
FPL, to select a consecutive four-hour period which begins no earlier than 7:00
a.m. and ends no later than 10:00 p.m., beginning any time after Hour Six, to
re-demonstrate its Available Committed Capacity (“Re-demonstration
Period”), and shall continue to have the right to re-demonstrate the
Facility’s Available Committed Capacity during a consecutive four-hour
period which begins no earlier than 7:00 a.m. and ends no later than 10:00 p.m.
on any day during the Reclose Period, upon two (2) hours notice to FPL, until
ICL achieves a Successful Demonstration. At the end of each Re-demonstration
Period, ICL will operate the Facility at or below Minimum Load until (i) the end
of the Reclose Period, unless the Facility Separates in accordance with Section
13.3.5(a), or (ii) the start of a new Re-demonstration Period, if any. During
the Re-demonstration Period, ICL shall receive credit towards its Daily Capacity
Factor and Daily On-peak Capacity Factor at the actual hourly integrated
megawatt output level for each such hour (not to exceed the Committed Capacity),
unless and until the first full hour that it achieves a Successful
Demonstration, in which case ICL shall receive credit towards its Daily Capacity
Factor and Daily On-peak Capacity Factor at its Committed Capacity, which shall
be ICL’s Available Committed Capacity, for that hour and for each full hour
thereafter until the earlier of (i) the end of the Reclose Period or (ii) a
Capacity Reduction. If ICL is unable to achieve a Successful Demonstration, then
beginning in the first full hour following the Re-demonstration Period and
continuing until the earlier of (i) the end of the Reclose Period, (ii) a
Capacity Reduction, or (iii) the start of a new Re-demonstration Period, if any,
ICL shall receive credit at the highest hourly integrated megawatt output level
achieved by ICL during the most recent Re-demonstration Period, which output
level shall be ICL’s Available Committed Capacity.
13.3.3 (a) If the Facility recloses pursuant to Section 13.3.1(c),
then from the time the Facility recloses up through the end of Hour Six, as that
term is used in Section 13.3.2 above, ICL shall be paid for each megawatt of
Energy produced above 100 MW at an hourly rate equal to the Unit Energy Payment
Cost and for each megawatt of Energy up to 100 MW in accordance with Sections
8.1.2 or 8.1.3 as applicable. Following Hour Six, ICL shall only receive payment
for Energy produced up to 100 MW, which shall be paid in accordance with
Sections 8.1.2 or 8.1.3 as applicable, except that during any Re-demonstration
Period, as that term is used in Section 13.3.2 above, ICL shall receive payment
for each megawatt of Energy produced up to 100 MW in accordance with Sections
8.1.2 or 8.1.3 as applicable, and shall receive payment for each megawatt of
Energy produced above 100 MW in accordance with Section 8.1.2.
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(b) FPL will provide ICL FPL’s projected hourly As-Available Energy Costs for each hour of a Reclose Period using the most recent projected rate available. For the day on which the reclosure as specified in the Reclose Notice is to occur, FPL shall provide the projected hourly As-Available Energy Costs for that day and for at least the next following day as soon as practicable after FPL advises ICL that FPL wishes the Facility to remain Separated. On each day during a Reclose Period subsequent to the day specified in the Reclose Notice as the date of reclosure, FPL shall provide the ICL control room by facsimile the projected rate by 4:00 p.m. for at least the following day. FPL offers no guarantees with regard to the accuracy of the projected hourly As-Available Energy Costs, which are prepared and provided for planning purposes only and should not be relied upon. Further, ICL hereby agrees to treat as proprietary to FPL and confidential any and all projected hourly As-Available Energy Costs information provided to ICL by FPL, to use such information solely for the purpose of operating the Facility as set forth in the Agreement, and not to disclose this information to any other person or entity, including but not limited to, any affiliate, parent, subsidiary or related company, other than a person that is employed in the operation or management of the Facility for 90 days after the day for which such projected hourly As-Available Energy Costs applies.
13.3.4 If the Facility fails to reclose within thirty (30) minutes after the time specified in a Reclose Notice or at such later time as provided for under Section 13.3.1(c), each hour, beginning with and including the later of the hour in which such reclosure as specified by ICL in the Reclose Notice was to occur or such later hour for reclosure as provided for under Section 13.3.1(c), and continuing until the first full hour following reclosure, shall be an Unscheduled Outage.
13.3.5 (a) If, during a Reclose Period, ICL desires to voluntarily Separate the Facility from the grid, ICL may do so provided ICL gives FPL a minimum of eight (8) hours notice prior to doing so, unless there is an unscheduled reduction of steam demand at the Facility’s steam host(s) such that anticipated or actual steam demand will be 20,000 lbs. of steam per hour or less, in which case ICL will give FPL a minimum of two (2) hours notice prior to doing so. If the Facility voluntarily Separates, as that term is defined in Section 1.69 herein, without providing FPL such notice, or more than thirty (30) minutes prior to the time specified by ICL in the notice as the time the Facility will Separate, the hours, beginning with the hour the Facility Separates and ending with the hour the Facility recloses, shall be deemed an Unscheduled Outage.
(b) If the Facility, rather than Separating at the time specified by ICL in the notice as provided in subsection (a) above, continues to operate and deliver Energy to FPL up to its Minimum Load for more than thirty (30) minutes after the time for Separation specified by ICL in the notice, ICL shall receive payment for all megawatts of Energy delivered up to a maximum of 100 MW at 50% of the As-Available Energy Costs and shall receive no payment for Energy delivered in excess of 100 MW. ICL shall be paid at the above-specified rates up through the end of the last hour of such Reclose Period. Any hours paid at the above-specified rates shall not be considered Reclose Period Hours.
13.3.6 If in response to a Reclose Notice provided pursuant to Section 13.3.1(a), FPL does not notify ICL as provided in Section 13.3.1(b) that FPL does not wish the Facility to reclose into FPL’s system or is exercising its rights pursuant to Section 6.3(i) or (ii) of the Agreement, then the control of Capacity and Energy shall be ICL’s responsibility (and FPL shall pay for each MWh of Energy pursuant to Section 8.1.1) unless and until FPL exercises its Dispatch and Control Rights.
4.2 Section 13.7 of the Agreement is amended to read in its entirety as follows:
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13.7 For purposes of exercising certain Dispatch and Control Rights,
FPL agrees that the minimum notice for shutdown shall be eight hours and the
minimum run time between start-up and shutdown shall be eight hours. FPL may
request ICL to decommit the Facility, provided that such requests will not
exceed the FPL Operating Limits. Unless FPL notifies ICL that purchases from ICL
at that time should be interrupted due to circumstances specified in Section
6.3(i) or (ii), SALE OF ENERGY AND CAPACITY BY ICL, ICL may, at its sole
discretion, continue to operate the Facility at or below Minimum Load and
deliver Energy to FPL. Any hour or part of an hour (i) that ICL elects to
continue to operate the Facility rather than decommit the Facility as requested
by FPL, or (ii) any hour, whether or not encompassed by subsection (i) above,
during a Reclose Period shall not be considered a Dispatch Hour. Once FPL
requests the Facility to again produce generation at or above the Minimum Load,
the first hour subsequent to such request shall be a Dispatch Hour. 4.3 Section
15.2.2 of the Agreement is amended by adding after the word "procedures" the
following: "including procedures to implement Section 13.3."
SECTION V
EFFECTIVE DATE
5.1 This Third Amendment shall become effective on the first day of the
month following the month in which the later of the following has been achieved:
(i) the FPSC issues a final determination as to which no appeal is pending and
which is no longer appealable (hereinafter the "Final Order"), in form and
substance acceptable to each Party in its sole discretion and (ii) ICL shall
have notified FPL in writing that it has obtained satisfaction of any
requirements in ICL's bond indenture that are conditions precedent to the
effectiveness of this Third Amendment to the Agreement ("Bond Requirements")
provided that such notice shall be delivered to FPL within sixty days of the
execution by both Parties of this Agreement unless such period is extended in
writing by the Parties.
5.2 Within 20 days of the execution of this Third Amendment by both
Parties, the Parties will jointly submit a petition to the FPSC for approval of
this Third Amendment ("Petition"). Each Party will use good faith diligent
efforts to obtain approval of the Third Amendment by the FPSC, however, this
obligation does not give rise to any liability by either Party to the other
Party. Either Party shall have the right to withdraw the Petition, in its sole
discretion for any reason or for no reason, at any time prior to the time of a
Final Order.
5.3 ICL will use good faith diligent efforts to satisfy the Bond
Requirements; however, this obligation does not give rise to any liability by
ICL to FPL.
SECTION VI
SETTLEMENT OF LITIGATION
6.1 Upon satisfaction of each of the conditions set forth in Section 5.1, the Parties shall (i) file a joint motion to dismiss the Litigation with prejudice, each Party to bear its own fees and costs, and (ii) except for claims to enforce the terms of this Third Amendment, each Party, and its direct or indirect owners, subsidiaries, affiliates, heirs, assigns, successors, distributors, licensees, officers, directors, agents, representatives and employees, both past and present, releases and discharges the other Party, and its direct or indirect owners, subsidiaries, affiliates, heirs, assigns, successors, distributors, licensees, officers, directors, agents, representatives, and employees, both past and present, from any and all claims, demands, or causes of action of any kind that each Party may now or hereafter have against the other Party concerning or arising from any allegations or claims, known or unknown, contingent or vested, which relate in any way to claims, counterclaims and causes of action which were asserted in the Litigation. Notwithstanding this provision, or any provision of this Third Amendment, the Parties expressly recognize that any and all claims relating to any costs, credits, rebates, discounts and allowances/concessions ICL received from its coal supplier, coal transporter, lime and/or ash vendors, or any other costs or adjustments required by, or in accordance with, Section 8.4 of the Agreement are not released by this provision. 6.2 Upon the denial or withdrawal of the Petition submitted to the FPSC, or the failure to satisfy the Bond Requirements within sixty days of the execution of this Third Agreement (as such period may be extended in accordance herewith), the Parties shall promptly file a joint motion to vacate the stay of the Litigation, and this Third Amendment and the Settlement Agreement dated December 19, 2000 pertaining to reclosure of the Facility after Separation and which was the predicate for this Third Amendment, shall be immediately and without further action null and void and without further effect and neither Party shall have any liability to the other Party with respect to (i) such Settlement Agreement or (ii) this Third Amendment.
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SECTION VII
MISCELLANEOUS
7.1 Except as expressly modified herein, all other terms and conditions of
the Agreement shall remain unchanged. The Parties acknowledge and agree that
this Third Amendment is contingent upon final approval of the Bond Requirements
and the FPSC and that in the event such conditions are not satisfied, the
above-referenced Agreement shall remain in full force and effect and unchanged
without reference to this Third Amendment.
7.2 Each Party hereto expressly warrants and represents that it has any
requisite corporate or partnership approval, as the case may be, to execute and
deliver this Third Amendment and that each of the persons executing this Third
Amendment has the necessary and appropriate authority to do so; that there are
no pending agreements, transactions, or negotiations to which it is a party that
would render this Third Amendment or any part thereof void, voidable, or
unenforceable; that no authorization, consent or approval of any governmental
entity is required to make this Third Amendment valid and binding upon it other
than as contemplated in Articles V and VI above; and that, subject to Articles V
and VI, this Third Amendment and the Agreement as amended by this Third
Amendment each constitute its legal, valid and binding obligation.
7.3 This Third Amendment shall be governed by the laws of the State of
Florida applicable to contracts made or to be performed in Florida, without
regard to the conflicts of law principles thereof. The Parties hereto consent to
the personal jurisdiction and venue of the federal and state courts in the State
of Florida, and agree that all disputes or litigation regarding this Third
Amendment shall be submitted to and determined by said courts.
7.4 This Third Amendment is binding upon and shall inure to the benefit of
the licensees, representatives, transferees, affiliates, subsidiaries, direct
and indirect owners, successors, heirs and/or assigns of the Parties hereto.
This Third Amendment and the Agreement contain the entire agreement between the
Parties hereto with respect to the subject matter hereof, supersedes any and all
prior oral and written agreements relating thereto, and may not be modified,
amended, or amplified except by a written document executed by both Parties
hereto.
7.5 If any provision of this Third Amendment is invalid and unenforceable
then, to the fullest extent permitted by law, (a) the other provisions hereof
shall remain in full force and effect, and (b) the invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of the Agreement.
7.6 This Third Amendment may be executed in two or more counterparts, each
of which shall be deemed to be an original but all of which shall constitute one
and the same agreement, and a facsimile signature shall be deemed to have the
same effect as an original signature.
13
IN WITNESS WHEREOF, the Parties hereto have caused this Third Amendment to
be executed as of this ___th day of May, 2001 by their respective duly
authorized officers.
INDIANTOWN COGENERATION, L.P. FLORIDA POWER & LIGHT COMPANY14
By: _______________________________ By: ________________________________ Title: ______________________________ Title: _____________________________
APPENDIX 1
SAMPLE DETERMINATION OF ACCUMULATED RECLOSE HOURS ACCOUNT
ON A CALENDAR YEAR BASIS
USING HYPOTHETICAL OPERATIONS OVER ASSUMED 15 YEAR PERIOD
(FOR PURPOSES OF ILLUSTRATION ONLY)
------------------------ -------------------------- --------------------- -------------------------- ------------------
(a) (b) (c) (d) (e)
Year Accumulated Reclose Hours of ICL Number of Hours In Which Difference of
(starting with year in Hours Account Operation During Payment is made pursuant (b) and (d)
which Third Amendment (as of first day of the Reclose Periods to Section 8.1.2
becomes effective) year, equal to (e) + 360 (assumed) (lesser of (b) or (c))
after year 1; capped at
1440)
------------------------ -------------------------- --------------------- -------------------------- ------------------
1 360 300 300 60
------------------------ -------------------------- --------------------- -------------------------- ------------------
2 420 500 420 0
------------------------ -------------------------- --------------------- -------------------------- ------------------
3 360 60 60 300
------------------------ -------------------------- --------------------- -------------------------- ------------------
4 660 400 400 260
------------------------ -------------------------- --------------------- -------------------------- ------------------
5 620 20 20 600
------------------------ -------------------------- --------------------- -------------------------- ------------------
6 960 20 20 940
------------------------ -------------------------- --------------------- -------------------------- ------------------
7 1300 20 20 1280
------------------------ -------------------------- --------------------- -------------------------- ------------------
8 1440 0 0 1440
------------------------ -------------------------- --------------------- -------------------------- ------------------
9 1440 0 0 1440
------------------------ -------------------------- --------------------- -------------------------- ------------------
10 1440 500 500 940
------------------------ -------------------------- --------------------- -------------------------- ------------------
11 1300 200 200 1100
------------------------ -------------------------- --------------------- -------------------------- ------------------
12 1440 1500 1440 0
------------------------ -------------------------- --------------------- -------------------------- ------------------
13 360 500 360 0
------------------------ -------------------------- --------------------- -------------------------- ------------------
14 360 100 100 260
------------------------ -------------------------- --------------------- -------------------------- ------------------
15 620 0 0 620
------------------------ -------------------------- --------------------- -------------------------- ------------------
