BONNEVILLE NEVADA CONTRACT A
with
NEVADA POWER COMPANY
FOR
LONG TERM POWER PURCHASES
FROM
QUALIFYING FACILITIES
May 2, 1989
TABLE OF CONTENTS
SECTION DESCRIPTION
1 Project Summary
2 Definitions
3 Contract Termination
4 Seller's Facilities
5 Nevada's Facilities
6 Interconnection Facilities Agreement
7 Operations Coordination Agreement
8 Improvements Agreements
9 Capacity and Energy Metering
10 Capacity Provisions
11 Escrow Provisions
12 Billing Provisions
13 Capacity and Energy Payment Provisions
14 Taxes
15 Liability
16 Insurance
17 Uncontrollable Forces
18 Non-dedication of Facilities
19 Amendments
20 Previous Communications
21 Non-Waiver
22 Disputes
23 Remedies
24 Assignment and Delegation
25 Governing Law
26 Nature of Obligations
27 Commission Approval
28 Signatures
NEVADA POWER COMPANY
STANDARD CONTRACT
LONG TERM POWER PURCHASE
1. PROJECT SUMMARY
This Contract Is entered Into between NEVADA POWER COMPANY ("Nevada") and
Bonneville Nevada Corporation ("Seller"). Seller shall own, operate, and
maintain a Qualifying Facility and shall sell electric capacity and energy to
Nevada and Nevada shall purchase that electric capacity and energy pursuant to
the terms and conditions set forth herein.
1.1 Notices to Seller:
1.1.1 Written notices and correspondence shall be sent to Seller at the
following address:
Bonneville Nevada Corporation
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Vice President, Engineering and Construction
With a copy to:
1.1.2 Oral notices shall be conveyed to Seller via telephone. The number
shall be: (000) 000-0000.
1.1.3 Notices to Seller shall be effective upon receipt by Seller.
1.2 Notices to Nevada:
1.2.1 Written notices and correspondence shall be sent to Nevada at the
following address:
Nevada Power Company
Attention: Secretary
P.O. Box 230
Las Vegas, Nevada 89151
with a copy to Nevada's Operating Representative at the same address.
1.2.2 Nevada's Operating Representative shall be Xxxxx X. Xxxxxx; Xxxx X.
Xxxxxxxxx shall be Nevada's Alternate Operating Representative.
1.2.3 Oral notices shall be conveyed to Nevada's Operating Representative
via telephone. The number shall be: (000) 000-0000.
1.2.4. Notices to Nevada shall be effective upon receipt by Nevada.
1.3 Seller's Generating Facility:
1.3.1 Prior to Firm Operation, Seller shall obtain Qualifying Facility
status for Seller's Generating Facility. Seller shall maintain
qualification throughout the Contract Term.
1.3.2 Location: Georgia Pacific Plant
Las Vegas, Nevada
1.3.3 1.3.3 Expected Firm Operation Date: June 1, 1993
1.4 Contract Capacity 85,000 M
-----------------
1.5 Expected Annual Energy Delivery: 680,000,000 kWh.
1.6 Contract Termination Date: Apr 30, 2023.
1.7 Operating Options: A portion of the electric energy output of Seller's
Generating Facility is dedicated to Seller's requirements; excess
output Is dedicated to Nevada.
1.8 Capacity Payment:
1.8.1 Starting with Firm Operation and continuing through the Contract
Term, Seller shall be paid for Capacity at Capacity rates agreed upon
by the Parties and set forth In Exhibit A.
1.8.2 Prior to Firm Operation, Seller shall not be paid for capacity
unless Nevada, because of operating conditions, experienced a capacity
requirement that was mat by Seller's Capacity, in which case Seller
shall be paid for Capacity at Nevada's Tariff Schedule QF-Short Term
Capacity rates effective at the time of delivery.
1.8.3 Seller shall not be paid for Excess Capacity unless Nevada,
because of operating conditions, experienced a capacity requirement
that was met by Seller's Excess Capacity, In which case Seller shall be
paid for Excess Capacity at Nevada's Tariff Schedule QF-Short Term
Capacity rates effective at the time of delivery.
1.8.4 If Seller obtained Qualifying Facility status prior to Firm
Operation and subsequently lost such status for reasons beyond Seller's
reasonable control, Seller shall be paid for Capacity delivered to
Nevada, during the periods that Seller did not have Qualifying Facility
status, at Capacity rates equal to eighty (80) percent of the Capacity
rates otherwise agreed upon by the Parties.
1.9 Energy Payment:
1.9.1 Starting with Firm Operation and continuing through the
Contract Term, Seller shall be paid for Energy at Energy rates
agreed upon by the Parties and set forth In Exhibit A.
1.9.2 Prior to Firm Operation, Seller shall be paid for Energy
at Nevada's Tariff Schedule OF-Short Term Energy rates
effective at the time of delivery.
1.9.3 Seller shall be paid for Excess Energy at Nevada's
Tariff Schedule QF-Short Term Energy rates effective at the
time of delivery.
1.9.4 If Seller obtained Qualifying Facility status prior to
Firm Operation and subsequently lost such status for reasons
beyond Seller's reasonable control, Seller shall be paid for
Energy delivered to Nevada, during the periods that Seller did
not have Qualifying Facility status, at Energy rates equal to
eighty (80) percent of the Energy rates otherwise agreed upon
by the Parties.
2. DEFINITIONS: Common electric utility Industry terms shall have the
meaning ascribed to them In the Edison Electric Institute "Glossary of
Electric Utility Terms" (Pub. No. 04-84-06). When a term Is Initially
capitalized and used In the singular or the plural, It shall have the
following cited definition.
2.1 Applicable Laws: Any law, treaty, rule, regulation, ordinance, order,
code, judgment, decree, Injunction, permit, or decision of any Federal, state,
or local government, authority, agency, court, or other governmental body having
jurisdiction over the matter In question, as In effect from time to time.
2.2 Applicable Permits: Any action, approval, consent. waiver, exemption,
variance, franchise, order, permit, authorization, right, or license required to
be obtained and/or maintained in connection with Seller's Facilities.
2.3 Capacity: The kilowatts produced by Seller's Generating Facility that
shall be purchased by Nevada.
2.4 Commission: The Public Service Commission of Nevada
2.5 Contract: This document and the exhibits referenced herein, If
applicable; as amended from time to time. Exhibits shall be attached hereto and
shall be made a part hereof to the same extent as If set forth herein.
2.6 Contract Capacity: The electric power producing capability of Seller's
Generating Facility that shall be dedicated to Nevada
2.7 Contract Term: The period during which Nevada shall purchase capacity
and energy from Seller. The Contract Term shall end on the Contract Termination
date set forth In Section 1.6.
2.8 Electric System Integrity: The state of operation of an electric system
that maximizes the health, welfare, and safety of personnel and the general
public; minimizes the risk of Injury to personnel and the general public;
minimizes the risk of damage to property; and maximizes the system's ability to
provide electric service to customers In accordance with electric utility
Industry standards.
2.9 Emergency: Any condition that, In Nevada's judgment, adversely affects
Nevada's Electric System Integrity.
2.10 Energy: The kilowatt hours produced by Seller's Generating Facility
that shall be purchased by Nevada.
2.11 Excess Capacity: Capacity that exceeds deliveries at Contract
Capacity.
2.12 Excess Energy: Energy associated with capacity that exceeds deliveries
at Contract Capacity. Excess Energy shall be determined by multiplying Contract
Capacity by the number of hours In the month and subsequently subtracting the
product from actual energy.
2.13 Exhibit A: Payment Provisions.
2.14 Exhibit B: Interconnection Facilities Agreement
2.15 Exhibit C: Operations Coordination Agreement.
2.16 Exhibit D: Improvement Agreement(s), if applicable.
2.17 Exhibit E: Provisions for Establishing Firm Operation.
2.18 Exhibit F: Form of Insured Endorsement.
2.19 Exhibit G: Standby Service Agreement, f applicable.
2.20 Firm Operation: The date, agreed upon by the Parties, on which Seller
compiled with the provisions of Exhibit E.
2.21 Forced Outage: Any outage, other than a Scheduled Outage, that fully
or partially curtails the production or delivery of Seller's energy to Nevada.
2.22 Generating Facility: A plant containing prime movers, electric
generators, and auxiliary equipment required to produce electric energy.
2.23 Interconnection Facilities: The facilities that shall be required to
connect a Generating Facility to an electric system and the Incremental
facilities that shall be required to transmit the output of a Generating
Facility to distribution points on that electric system.
2.24 Interconnection Point: The point, which shall be so designated by
Nevada In Exhibit B, where the transfer of electric energy between Nevada and
Seller will take place.
2.25 Lender: The entity(ies) that have provided financing for Seller's
Facilities.
2.26 Maintenance Months: Those months that have been so designated In
Exhibit A.
2.27 Nevada: Nevada Power Company, Its directors, officers, employees, and
agents with authority to act on Its behalf
2.28 Off-Peak Hours: Those hours that have been so designated in Exhibit A.
2.29 On-Peak Hours: Those hours that have been so designated In Exhibit A.
2.30 Operating Communications: The routine transmittals of information
between the Parties that shall be required to ensure Nevada's Electric System
Integrity. Provisions for Operating Communications have been set forth In
Exhibit C.
2.31 Operating Representative: The Individual(s) that shall be appointed by
each Party to ensure effective communication, coordination, and cooperation
between the Parties. Either Party shall have the right to change that Party's
Operating Representative by providing written notice of the change to the other
Party; such changes shall not be deemed amendments for the purposes of this
Contract.
2.32 Party: Nevada or Seller.
2.33 Qualifying Facility: A Cogeneration or Small Power Production Facility
that masts the criteria defined In Title 18, Code of Federal Regulations,
Section 292.201 through 292.207.
2.34 Scheduled Outage: Any outage, other than a Forced Outage, that has
fully or partially curtailed the production or delivery of Seller's electric
energy to Nevada and that had been noticed In accordance with the provisions of
this Contract.
2.35 Seller: The entity designated in Section 1, its directors, officers,
employees, and agents with authority to act on its behalf.
2.36 Tariff: The rate schedules and service rules that have been
promulgated by Nevada and approved by the Commission; as amended from time to
time. Nevada's Tariff shall be on file with the Commission.
2.37 Uncontrollable Force: Any occurrence beyond the reasonable control of
a Party that has rendered a Party Incapable of performing Its obligations
hereunder. Uncontrollable Forces shall include, but not be limited to floods,
droughts, earthquakes, storms, fires, pestilence, lightning or other natural
catastrophes; epidemics; wars; riots, civil disturbance or other civil
disobedience; strikes or other labor disputes; action or Inaction of
legislative, judicial, regulatory, or other governmental bodies that may render
or may have rendered Illegal action In accordance with the provisions of this
Contract; and failure, threat of failure, or sabotage of facilities that had
been operated and maintained In accordance with the provisions of this Contract.
3. CONTRACT TERMINATION:
3.1 This Contract shall become effective upon execution by the Parties.
3.2 This Contract shall be terminated on the Contract Termination Date
specified In Section 1.6 unless:
3.2.1 Commission approval of this Contract, In accordance with the
provisions of Section 27, has not been received within six (6) months of the
date on which the Commission received the Contract from Nevada for review and
approval, In which case this Contract shall be terminated six (6) months after
the date on which the Commission received the Contract for review and approval;
or
3.2.2 An Interconnection Facilities Agreement has not been executed within
six (6) months of Contract execution; or
3.2.3 An Operations Coordination Agreement has not been executed within six
(6) months of Contract execution; or
3.2.4 Seller has not secured construction financing for Seller's Facilities
before November 1, 1991; or
3.2.5 Seller has not obtained the primary construction permits for Seller's
Facilities before November 1, 1991; or
3.2.6 Seller has not awarded the major equipment contracts for Seller's
Facilities before November 1, 1991; or
3.2.7 Seller has not secured a "thermal host" for Seller's Facilities
before December 31, 1991; or
3.2.8 Seller has not secured a source of fuel and related transportation
services before December 31, 1991; or
3.2.9 Construction of Seller's Facilities has not begun before November 1,
1991; or
3.2.10 Delivery of Seller's major equipment to Seller's construction site
has not been completed before November 1, 1992; or
3.2.11 Seller has not obtained Qualifying Facility status for Seller's
Generating Facility before July 1, 1993; or
3.2.12 Firm Operation has not occurred before July 1, 1993 In which case
this Contract shall be terminated thirty (30) days after Seller's failure to
meet the specified deadline unless such failure has been caused by Nevada, In
which case the affected date(s) shall be adjusted to reflect the delay(s) caused
by Nevada, or unless such failure has been cured by Lender within thirty (30)
days of Seller's failure to meet the specified deadline.
3.3 Documentation required to confirm compliance with the deadlines
specified in Section 3.2 shall be In a form reasonably required by Nevada.
3.4 Termination of this Contract shall not excuse either Party from
obligations, other than Seller's obligation to deliver additional Capacity and
Energy to Nevada, Incurred by either Party prior to termination of this
Contract. This Contract shall remain effective until both Parties have
discharged their obligations In accordance with the provisions of this Contract
and have exercised their rights and remedies In accordance with the provisions
of this Contract. This Contract shall expire after both Parties' obligations
have been discharged and both Parties rights and remedies have been exercised.
4. SELLER'S FACILITIES: Seller's Facilities shall Include Seller's
Generating Facility and Seller's Interconnection Facilities. Seller's
Interconnection Facilities shall be so designated In Exhibit B.
4.1 Ownership: Seller's Facilities shall be leased or owned, designed,
constructed, operated, maintained, and Improved by Seller. All costs associated
with Seller's Facilities, whether Incurred by Nevada or by Seller, shall be
borne by Seller.
4.2 General:
4.2.1 Nevada shall have the right, without liability, to refuse to connect
Seller's Facilities to Nevada's electric system or to Isolate Seller's
Facilities from Nevada's electric system If Seller falls to comply with any of
the provisions of this Contract that adversely affect Nevada's Electric System
Integrity.
Nevada shall also have the right, without liability, to refuse to connect
Seller's Facilities to Nevada's electric system or to Isolate Seller's
Facilities from Nevada's electric system If Nevada's failure to refuse
Interconnection or to Isolate would render Illegal Nevada's actions In
accordance with the provisions of this Contract. Nevada's refusal or Isolation
shall be limited to the period during which Nevada's failure to refuse
Inter-connection or to Isolate would render Illegal Nevada's actions In
accordance with the provisions of this Contract plus a reasonable period of time
for the restoration of Nevada's electric system to a condition that enables
Nevada to resume compliance with the provisions of this Contract.
4.2.2 Seller shall neither solicit nor accept advice from any Nevada
representative except Nevada's Operating Representative. If requested by Seller,
Nevada's Operating Representative shall offer, to the extent possible, advice to
Seller relative to the design, construction, operation, maintenance, and
Improvement of Seller's Facilities. Such advice shall be offered as a courtesy.
Seller shall save harmless and Indemnify Nevada from any loss and liability,
whether direct or Indirect and Including attorney's fees and other costs of
litigation, resulting from Seller's Implementation of Nevada advice.
4.2.3 Seller shall design, construct, operate, maintain, and improve
Seller's Facilities In accordance with prudent engineering, construction,
operation, and maintenance practices. Seller shall comply with all Applicable
Laws even if compliance necessitates Improvements to Seller's Facilities or
Interferes with the operation of Seller's Facilities. In addition, Seller shall
operate Seller's Facilities so as to ensure, to a reasonable extent, the
uninterrupted production and delivery of electric energy to Nevada consistent
with Nevada's requirements. If Seller failed to comply with the provisions of
this section, Seller shall save harmless and Indemnify Nevada from any loss and
liability, whether direct or Indirect and Including attorney's fees and other
costs of litigation, resulting from Seller's failure to comply with these
provisions.
4.2.4 Nevada shall have the right, without liability, to monitor and make
recommendations to Seller regarding any aspect of the construction, operation,
maintenance, and Improvement of Seller's Facilities provided that such
recommendations, If Implemented, would not unreasonably
Interfere with the construction, operation, maintenance, or improvement of
Seller's Facilities and that such recommendations are required, In Nevada's
reasonable judgment, to maintain Nevada's Electric System Integrity or to ensure
compliance with the provisions of this Contract. Nevada's recommendations shall
be made as a courtesy. Seller shall save harmless and indemnify Nevada from any
loss and liability, whether direct or Indirect and Including attorney's fees and
other costs of litigation resulting from Seller's Implementation of Nevada's
recommendations.
4.2.5 Seller shall acquire and maintain al Applicable Permits for Seller's
Facilities.
4.2.6 Seller shall acquire and maintain all easements, rights--of-way, and
land rights required for Seller's Facilities.
4.2.7 Seller shall complete all environmental Impact studies required for
Seller's Facilities.
4.2.8 Seller shall complete al feasibility studies required for Seller's
Facilities.
4.3Design:
4.3.1 Seller shall design Seller's Facilities so that those facilities
should not Impose upon Nevada's system any voltage or current that could
Interfere with Nevada's operations, lower the quality of service to Nevada
customers, or Interfere with the operation of any communication facilities.
Seller shall design Seller's Facilities so that those facilities will be
protected from damage that could otherwise result from disturbances on Nevada's
electric system or the electric systems to which Nevada's electric system Is
connected.
4.3.3 Seller shall design Seller's Facilities so that those Facilities
Incorporate reactive power equipment capable of maintaining a power factor
ranging from 0.90 lagging to 0.90 leading at the Interconnection Point whenever
Contract Capacity Is being delivered to Nevada at that point.
4.3.4 Seller shall design Seller's Facilities so that those facilities
Incorporate provisions for storage and utilization of backup fuel. The capacity
of the storage facilities, which shall be established during subsequent
discussions between the Parties, shall be sufficient to ensure the availability
of Seller's Generating Facility during periods when natural gas delivery can be
reasonably expected to be curtailed.
4.3.5 Seller shall provide those drawings and specifications reasonably
required by Nevada to accomplish Its design review. Nevada shall review and
specify modifications to the design of Seller's Facilities to the extent
necessary to maintain Nevada's Electric System Integrity and to ensure
compliance with the provisions of this Contract. In conjunction with Nevada's
design review, Nevada shall designate the minimum set of protective devices that
shall be required to protect Nevada's electric system whenever any of Seller's
Facilities are connected to Nevada's electric system. Nevada shall not
unreasonably withhold or delay its review of any design related drawing or
specification that has been submitted to Nevada for review and approval.
4.3.6 Seller shall modify Seller's design as required by Nevada to maintain
Nevada's Electric System Integrity or to ensure compliance with the provisions
of this Contract and shall provide revised drawings and specifications that
shall be reasonably required by Nevada to confirm compliance with Nevada's
requirements.
4.4 Construction:
4.4.1 Prior to the start of Seller's construction, Seller shall furnish a
construction schedule for Seller's Facilities to Nevada. Seller shall notify
Nevada, upon receipt of pertinent Information, of any changes In that
construction schedule that may affect or may have affected Firm Operation.
4.4.2 Seller shall construct Seller's Facilities In accordance with
Seller's design as modified to reflect the changes, If any, that had been
reasonably required by Nevada. Seller shall furnish and Install all equipment
that had been reasonably required by Nevada to maintain Nevada's Electric System
Integrity and to ensure compliance with the provisions of this Contract.
4.4.3 Seller shall provide to Nevada, as shall be reasonably required by
Nevada, "as built" drawings and specifications for Seller's Facilities.
4.5 Initial Operation:
4.5.1 Seller shall not connect any of Seller's Facilities to Nevada's
electric system or operate any of Seller's generators In parallel with Nevada's
electric system without the prior written approval of Nevada's Operating
Representative and without having properly calibrated, tested, and fully
operational protective devices, as designated by Nevada, in service. Nevada's
approval shall not be unreasonably withheld or delayed. If Nevada's approval has
been withheld, Nevada shall provide a written explanation, which Includes a list
of required remedial actions, to Seller within fifteen (15) days of the date on
which Nevada's approval was withheld.
4.5.2 Seller shall notify Nevada's Operating Representative at least
fifteen (15) days prior to the Initial energization of any of Seller's
Interconnection Facilities. Nevada shall Inspect and approve Seller's
Interconnection Facilities prior to that Initial energization If Seller's
Facilities can be energized, In Nevada's reasonable judgment, without adversely
affecting Nevada's Electric System Integrity. Nevada's approval shall be In
writing.
4.5.3 Seller shall notify Nevada's Operating Representative at least
fifteen (15) days prior to the Initial testing and calibration of Seller's
protective devices. Nevada shal Inspect and approve Seller's protective devices
after that Initial testing and calibration If Seller has demonstrated, to
Nevada's reasonable satisfaction, the correct calibration and operation of
Seller's protective devices. Nevada's approval shall be In writing.
4.5.4 Seller shall notify Nevada's Operating Representative at least
fifteen (15) days prior to the Initial operation of any of Seller's generators
In parallel with Nevada's electric system. Nevada shall Inspect and approve
Seller's generators prior to the Initial operation of those generators In
parallel with Nevada's electric system If Seller has demonstrated, to Nevada's
reasonable satisfaction, the ability to synchronize Seller's generators with
Nevada's electric system, to connect Seller's generators to Nevada's electric
system, and to operate Seller's generators In parallel with Nevada's electric
system without adversely affecting Nevada's Electric System Integrity. Nevada's
approval shall be in writing.
4.5.5 Prior to Firm Operation, Seller shall demonstrate, to Nevada's
reasonable satisfaction, the ability to produce and deliver Contract Capacity to
Nevada. Seller's demonstration shall be In accordance with the procedures that
have been set forth In Exhibit E. If Seller failed to demonstrate the ability to
produce and deliver Contract Capacity to Nevada, Nevada shall have the right
without liability, to reduce Contract Capacity to the level Seller was able to
produce and deliver.
4.6 Operation and Maintenance:
4.6.1 To the extent set forth In Exhibit C, Seller shall maintain Operating
Communications with Nevada.
4.6.2 Seller shall neither connect any of Seller's Facilities to Nevada's
electric system nor operate a generator in parallel with Nevada's electric
system without the prior approval of Nevada's Operating Representative.
Procedures for obtaining such approval have been set forth In Exhibit C.
4.6.3. Nevada shall have the right to require Seller to reduce the output
of Seller's Generating Facility or to Isolate any of Seller's Facilities from
Nevada's electric system If, In Nevada's reasonable Judgment, such actions are
required to facilitate the maintenance of any of Nevada's facilities or to
maintain Nevada's Electric System Integrity. Nevada shall, within a reasonable
period of time and to the extent possible, endeavor to correct the condition
that necessitated the reduction or Isolation. The duration of such reduction or
Isolation shall be limited to the period of time that the condition existed plus
a reasonable period of time for the restoration of Nevada's electric system to
an operating condition that allows Nevada to resume the discharge of Its
obligations In accordance with the provisions of this Contract.
Nevada shall also have the right to require Seller to reduce the delivery
of electric energy to Nevada during any period In which, due to operational
circumstances other than economic dispatch, purchases from Seller would have
resulted In costs greater than those that Nevada would otherwise have Incurred
If Nevada generated or purchased an equivalent amount of energy as set forth In
18 C.F.R. Section 292.304(f) and as described at 45 Federal Register 12227-12228
(February 29, 1980). Nevada shall provide one (1) hour's oral notice of such
reduction to Seller. The exercise of Nevada's right shall be subject to a
calendar year energy limitation equal to the product of Contract Capacity and
one thousand (1,000) hours. The amount of energy that has been curtailed shall
be established by multiplying the reduction In Seller's deliveries to Nevada,
from Seller's average rate of delivery (kW) to Nevada during the hour
Immediately preceding the curtailment, by the duration of the curtailment In
hours.
If Nevada has required Seller to reduce the output of Seller's Generating
Facility or to Isolate any of Seller's Facilities from Nevada's electric system,
Seller shall neither Increase the output nor reconnect the Isolated facilities
without the prior approval of Nevada's Operating Representative. Provisions for
obtaining such approval have been set forth In Exhibit C.
4.6.4 Seller shall endeavor to avoid the Imposition of any voltage or
current upon Nevada's electric system that Interferes with Nevada's operations;
distorts the electric service provided to Nevada's customers, or interferes with
the operation of any communication facilities. If Seller imposes such a voltage
or current upon Nevada's electric system, Seller shall, immediately upon receipt
of knowledge of such condition, pursue and Implement remedial measures.
4.6.5 Except as otherwise agreed upon by the Parties' Operating
Representatives, Seller shall have all of Seller's protective devices, as
designated by Nevada, in service whenever Seller's Facilities are connected to
Nevada's electric system.
4.6.6 Seller shall provide Seller's reactive power requirements. Seller
shall also provide reactive power reasonably required by Nevada to maintain
Nevada's Electric System Integrity provided that such requirements are
consistent with the capabilities of Seller's Facilities and do not adversely
affect Seller's ability to provide Capacity and Energy to Nevada In accordance
with the provisions of this Contract. Seller shall not deliver excess reactive
power to Nevada without the prior approval of Nevada's Operating Representative.
Provisions for obtaining such approval have been set forth In Exhibit C.
4.6.7 Seller shall maintain operation and maintenance logs for Seller's
Facilities that contain such data as have been set forth In Exhibit C. Nevada
shall have the right to Inspect and/or request a copy of Seller's operation and
maintenance logs. If so requested, Seller shall provide the copy within five (5)
days of Seller's receipt of Nevada's request.
4.6.8 Seller shall notify Nevada's Operating Representative of any
condition that may affect or may have affected Seller's ability to produce and
deliver Contract Capacity to Nevada. Provisions for such notice have been set
forth in Exhibit C.
4.6.9 If Nevada, as a result of Nevada's participation in a power pool or
coordinating council, has been required to routinely demonstrate the capacity of
its generating facilities, Seller shall routinely demonstrate, to Nevada's
reasonable satisfaction, the ability to produce and deliver Contract Capacity to
Nevada. Seller's demonstrations shall be In accordance with the procedures
established by the power pool or coordinating council.
4.6.10 If Nevada, as a result of Nevada's participation in a power pool or
coordinating council, has been required to comply with the operating criteria of
that power pool or coordinating council, Seller shall also comply with those
operating criteria. The criteria, with which Seller shall comply, shall be set
forth in Exhibit C.
4.6.11 Seller shall notify Nevada's Operating Representative in advance of
all Scheduled Outages. Unless the Parties' operating Representatives otherwise
agree, the minimum required advance notice shall be two (2) days if the expected
outage duration Is less than one (1) day, five (5) days If the expected outage
duration is between one (1) day and five (5) days, and fifteen (15) days If the
expected outage duration Is longer than five (5) days. Provisions for Xxxxxx's
notices have been set forth In Exhibit C.
Unless operating conditions otherwise dictate, Seller shall schedule all
outage of expected duration less than five (5) days for completion during the
period designated by Nevada's Operating Representative. Unless operating
conditions otherwise dictate, Seller shall schedule all outages of expected
duration greater than five (5) days for completion during the period designated
by Nevada's Operating Representative, which shall be during Maintenance Months.
4.6.12 Seller shall, If requested by Nevada's Operating Representative and
at no additional cost to Nevada, make every reasonable effort to produce
Contract Capacity during an Emergency. If Seller had scheduled an outage
coincident with the Emergency, Seller shall make every reasonable effort to
reschedule that outage. Nevada shall be deemed to have waived the minimum notice
requirements of Section 4.6.11 if Seller has not taken a properly scheduled
outage at Nevada's request and subsequently seeks to reschedule that outage.
4.6.13 Seller shall test and calibrate Seller's protective devices at
Intervals agreed upon by the Parties' Operating Representatives, but not to
exceed four (4) years. Seller shall notify Nevada's Operating Representative at
least thirty (30) days prior to such testing and calibration. Provisions for
Seller's notices shall have been set forth In Exhibit C.
If Nevada, because of an analysis of operating conditions or because of the
addition of facilities to Nevada's electric system or the modification of
facilities on Nevada's electric system, has reason to doubt the effectiveness of
Seller's protective devices, Nevada shall have the right, without liability, to
require Seller to retest and recalibrate those devices and to demonstrate, to
Nevada's reasonable satisfaction and at no additional cost to Nevada, the proper
calibration and operation of those devices. If operating conditions dictate,
Nevada shall also have the right, without liability, to retest and recalibrate
those devices and to bill Seller for associated costs In accordance with the
provisions of Section 5.5 or Exhibit B; whichever Is applicable.
4.6.14 Seller shall maintain a supply of backup fuel, the quantity of which
shall be established during subsequent discussions, sufficient to ensure the
availability of Seller's Generating Facility during periods when natural gas
delivery can be reasonably expected to be curtailed.
4.7 Nevada's Review: Any review of the design, construction, operation,
maintenance, or Improvement of Seller's Facilities by Nevada is solely for
Nevada. Nevada makes no representation as to the economic or technical
feasibility and suitability of any of Seller's Facilities for any purpose.
Seller shall not represent to any third party that Nevada's review constitutes
such a representation.
5. NEVADA'S FACILITIES: Nevada shall, as agreed upon by the Parties and set
forth In Exhibit 8, provide facilities required to affect the provisions of this
Contract. Nevada's Facilities shall be those facilities so designated In Exhibit
B.
5.1 Ownership: Nevada's Facilities shall be owned, designed, constructed,
operated, maintained, and Improved by Nevada. Unless otherwise agreed upon by
the Parties and set forth I Exhibit B, all costs associated with Nevada's
Facilities, whether Incurred by Nevada or by Seller, shall be borne by Seller.
5.2 Construction Deposits:
5.2.1 Unless otherwise agreed upon by the Parties and set forth In Exhibit
B, Seller shall, upon execution of Exhibit B, deposit the estimated cost of
Nevada's Facilities with Nevada. Seller's cost for the design and construction
of that portion of Nevada's Facilities for which Seller has deposited the
estimated cost with Nevada shall be adjusted to Nevada's actual cost after the
facilities have been completed. If Seller's construction deposits exceed
Nevada's actual cost, Nevada shall refund the excess deposits to Seller within
sixty (60) days of the completion of those Facilities. If Nevada's actual cost
exceeded Seller's construction deposits, Nevada shall render a bill to Seller
for the excess cost.
5.2.2 If that portion of Nevada's Facilities for which Seller has deposited
the estimated cost with Nevada shall be used for the sale of electric energy to
Seller and related parties as defined In Internal Revenue Service Advance Notice
88-129 and If the electric energy that shall be sold to Seller and related
parties has been projected to exceed five (5) percent of the electric energy
that shall be sold to Nevada by Seller under the provisions of this Contract,
the estimated cost of such facilities shall be Increased by 30.185 percent to
cover the Income tax liability attributable to such facilities.
5.2.3 If that portion of Nevada's Facilities for which Seller has deposited
the estimated cost with Nevada had been deemed "nontaxable" for the purposes of
Section 5.2.2 and if those facilities subsequently became taxable during the
term of this Contact because electric energy sales to Seller and related parties
exceeded five (5) percent of the electric energy purchased by Nevada under the
provisions of this Contract during any three (3) years of a five (5) year
period, Nevada shall have the right to bill Seller for the Income tax liability
attributable to such facilities because of the sales to Seller and related
parties.
5.3 Construction: Prior to the start of Nevada's construction, Nevada shall
furnish a construction schedule for Nevada's Facilities to Seller. Nevada shall
notify Seller, upon receipt of pertinent Information, of any changes in that
construction schedule that may affect or may have affected Firm Operation.
Seller shall release Nevada from any loss and liability, whether direct or
Indirect and Including attorney's fees and other costs of litigation, resulting
from any delay In the completion of Nevada's Facilities that has been caused by
Seller or by circumstances beyond Nevada's reasonable control.
5.4 Project Abandonment: If this Contract has been terminated prior to Firm
Operation, Seller shall bear all costs associated with Nevada's Facilities that
were incurred by Nevada prior to Contract termination plus all removal and/or
abandonment costs Incurred by Nevada subsequent to contract termination.
Seller's cost for the design, construction, and removal and/or abandonment of
Nevada's Facilities shall be adjusted to Nevada's actual cost not of salvage
value after Nevada's removal and/or abandonment efforts have been completed. If
Seller's construction deposits exceed Nevada's actual cost, Nevada shall refund
the excess deposits to Seller within sixty (60) days of the completion of
Nevada's efforts. If Nevada's actual cost exceeded Seller's construction
deposits, Nevada shall render a bill to Seller for the excess cost.
5.5 Billing Provisions: Unless otherwise agreed upon by the Parties and set
forth In Exhibit 8, Nevada shall render monthly bills to Seller for operation
and maintenance costs, both direct and Indirect, associated with Nevada's
Facilities that were Incurred by Nevada during the billing period. Indirect
costs shall Include but not be limited to labor loadings for administrative and
general, FICA, bodily Injury Insurance, property damage Insurance, group
Insurance, Industrial Insurance, holiday pay, sick leave, vacation pay, pension
plans, supervision, tools, transportation, and unemployment taxes.
5.6 Operation and Maintenance:
5.6.1. Nevada shall operate and maintain Nevada's Facilities in accordance
with Nevada's methods of operation and maintenance.
5.6.2 Nevada shall notify Seller's Operating Representative of any
condition that may affect or may have affected Seller's ability to produce and
deliver Contract Capacity to Nevada.
6. INTERCONNECTION AGREEMENT FACILITIES: The Parties shall execute an
Interconnection Facilities Agreement. Upon execution, that agreement shall be
attached to this Contract as Exhibit B.
7. OPERATIONS COORDINATION AGREEMENT: The Parties shall execute an
Operations Coordination Agreement. Upon execution, that agreement shall
be attached to this Contract as Exhibit C.
8. IMPROVEMENTS AGREEMENTS: Improvements shall Include any modifications
and additions to Seller's Interconnection Facilities or Nevada's
Facilities that are required to maintain Nevada's Electric System
Integrity or to comply with the directive of any governmental body. If
Improvements are required, the Parties shall execute Improvements
Agreements. Upon execution, those agreements shall be attached to this
Contract as Exhibit D.
The execution of Improvements Agreements shall not obligate Nevada to
Increase the rates set forth In Exhibit A or to otherwise compensate
Seller for costs Incurred by Seller as a result of Implementation of
the Improvements Agreements.
9 CAPACITY AND ENERGY METERING:
9.1 Unless otherwise agreed upon by the Parties and set forth In
Exhibit B, meters and metering equipment used to measure Capacity and
Energy shall be provided, owned, operated, and maintained by Nevada as
Nevada's Facilities.
9.2 Meters and metering equipment shall be Installed In locations
designated by Nevada In Exhibit B. If the meters and metering equipment
have been installed at locations other than the Interconnection Point,
Nevada shall have the right to install loss compensation equipment to
reflect the losses that would have been recorded by the meters if the
meters and metering equipment had been Installed at the Interconnection
Point.
9.3 Seller shall not undertake any action that could interfere with the
operation of Nevada's meters and metering equipment. If Seller falls to
comply with the provisions of this section, Nevada shall have the
right, without liability, to isolate Seller's Facilities from Nevada's
Electric System until Nevada's meters and metering equipment have been
reinstalled In a location that Is Inaccessible to Seller.
9.4 Nevada's meters and metering equipment shall be tested and
calibrated upon Installation and thereafter at Intervals not to exceed
two (2) years and In accordance with the provisions of the American
National Standard Institute Code for Electricity Metering (ANSI C12.1,
latest revision). Nevada shall provide fifteen (15) days prior written
notice of meter testing to Seller. Seller shall have the right to
monitor Nevada's meter testing.
Seller shall also have the right to request additional testing and
calibration of Nevada's meters and metering equipment. If so requested
in writing, Nevada shall test and calibrate Nevada's meters and
metering equipment within thirty (30) days of Nevada's receipt of
Seller's request. If the accuracy of Nevada's meters and metering
equipment Is found to be within the limits established In ANSI C12.1,
Seller shall bear the cost of such additional tests. Billing for such
costs shall be In accordance with the provisions of Section 5.5 or
Exhibit 8; whichever Is applicable. If the accuracy of Nevada's meters
and metering equipment Is found to be outside the limits established In
ANSI C12.1, Nevada shall bear the cost of such additional tests.
9.5 If the accuracy of Nevada's meters and metering equipment has been
found to be outside the limits established In ANSI C12.1, Nevada shall
repair and recalibrate or replace Nevada's meters and metering
equipment, and Nevada shall adjust payments to Seller for Capacity and
Energy delivered to Nevada during the period in which the inaccuracy
existed. If the period In which the Inaccuracy existed cannot be
determined, adjustments shall be made for a period equal to one-half of
the elapsed time since the last test and calibration of Nevada's meters
and metering equipment; however, the adjustment period shall not exceed
six (6) months. If adjustments are required, Nevada shall render a
statement describing the adjustments to Seller within thirty (30) days
of the date on which the Inaccuracy was rectified. If applicable,
additional payments to Seller shall accompany Nevada's statement. If
applicable, Nevada's bill for refunds due Nevada shall accompany
Nevada's statement.
9.6 If Nevada's meters fall to register, Nevada shall render payments
to Seller that have been based upon Nevada's estimate of Seller's
Capacity and Energy. Nevada's estimated payments shall have the same
force and effect as actual payments.
10. CAPACITY PROVISIONS: Unless otherwise provided within this section,
Uncontrollable Forces shall not excuse Seller from the performance
requirements of this section.
10.1 Performance Requirements: Unless otherwise instructed by Nevada,
Seller shall make Contract Capacity available to Nevada during the
Contract Term. Seller shall be deemed to have met that obligation
whenever Seller's deliveries meet or exceed deliveries specified
herein.
10.1.1 Summer Season: For the purposes of this section, a
summer season shall Include May, June, July, August, and
September. During a summer season, total Energy produced and
delivered to Nevada during the on-peak hours of that season
must meet or exceed the product of Contract Capacity, the
number of on-peak hours during that season, and 0.90.
10.1.2 Winter Season: For the purposes of this section, a
winter season shall Include the months of December, January,
and February. During a winter season total Energy produced and
delivered to Nevada during the on peak hours of that season
must meet or exceed the product of Contract Capacity, the
number of on-peak hours during that season, and 0.90.
10.1.3 For the purposes of this section, on-peak hours shall
be those hours so designated In Exhibit A for the summer and
winter seasons less any hours associated with the occurance of
the events expressly excluded In Sections 10.2.1 and 10.3.1,
respectively.
10.2 Summer Probation:
10.2.1 If Seller failed; for reasons other than limitations
imposed by Nevada, natural catastrophes, epidemics, wars,
civil disobedience, or failure, threat of failure, sabotage of
facilities that have been maintained In accordance with the
provisions of this Contract to the extent that such failure,
threat of failure, or sabotage renders Seller incapable of
performance in accordance with the provisions of this Contract
for a period of not less than two (2) months and not greater
than twenty-four (24) months; to meet the performance
requirements of this section during any summer season, Seller
shall be placed on summer probation for a period not to exceed
twelve (12) months.
10.2.2 If Seller failed, for reasons other than limitations
imposed by Nevada, to produce and deliver Energy to Nevada
that meets or exceeds the product of Contract Capacity, the
number of on-peak hours in the month, and 0.90 during any
month of a summer season within a summer probationary period,
Nevada shall have the right to extend the summer probationary
period for an additional twelve (12) months or to reduce
Contract Capacity to a level not less than the average
capacity level achieved by Seller during the on-peak hours of
the preceding summer season.
10.2.3 If Seller has met the performance requirements of this
Contract during each month of a summer season within a summer
probationary period, Seller shall be taken off summer
probation. Seller shall also be taken off summer probation if
Seller has demonstrated, to Nevada's reasonable satisfaction,
that the problems, which caused Seller to be placed on summer
probation, had been rectified and that Seller Is able to
produce and deliver Contract Capacity to Nevada in accordance
with the provisions of this Contract.
10.3 Winter Probation:
10.3.1 If Seller failed, for reasons other than limitations
imposed by Nevada, natural catastrophes, epidemics, wars,
civil disobedience, or failure, threat of failure, sabotage of
facilities that have been maintained In accordance with the
provisions of this Contract to the extent that such failure,
threat of failure, or sabotage renders Seller Incapable of
performance In accordance with the provisions of this Contract
for a period of not less than two (2) months and not greater
than twenty-four (24) months; to meet the performance
requirements of this section during any winter season, Seller
shall be placed on winter probation for a period not to exceed
twelve (12) months.
10.3.2 If Seller failed, for reasons other than limitations
Imposed by Nevada, to produce and deliver Energy to Nevada
that meets or exceeds the product of Contract Capacity, the
number of on-peak hours In the month, and 0.90, during any
month of a winter season within a winter probationary period,
Nevada shall have the right to extend the winter probationary
period for an additional twelve (12) months or to reduce
Contract Capacity to a level not less than the average
capacity level achieved by Seller during the on-peak hours of
the preceding winter season.
10.3.3 If Seller has met the performance requirements of this
Contract during each month of a winter season within a winter
probationary period, Seller shall be taken off winter
probation. Seller shall also be taken off winter probation if
Seller has demonstrated, to Nevada's reasonable satisfaction,
that the problem, which caused Seller to be placed on winter
probation, had been rectified and that Seller Is able to
provide Contract Capacity In accordance with the provisions of
this Contract.
10.4 Contract Capacity Reduction: If Contract Capacity has been reduced
for any reason, the provisions of this Contract shall be applicable to
the reduced Contract Capacity.
If Contract Capacity has been reduced for any reason, Seller shall,
upon receipt of Nevada's bill, refund to Nevada, with Interest at the
rate established by the Commission for Nevada's overall rate of return,
all payments to Seller In excess of the amount that would have been
paid If advance notice of Contract Capacity reduction had been provided
In accordance with the following table.
Contract Capacity Advance
Reduction Notice
0 to 1,000 kW 1 Year
1,001 to 70,000 kW 3 Years
over 70,000 kW 5 Years
10.6 Contract Capacity Increase: If Contract Capacity has been
increased for any reason, the provisions of this Contract shall be
applicable to the Increased Contract Capacity.
11. ESCROW PROVISIONS: Upon execution of this Contract, Seller shall
deposit with Nevada an amount equal to fifty cents ($0.50) per kilowatt
of Contract Capacity. Within thirty (30) days of Commission approval of
this Contract, Seller shall deposit with Nevada an additional amount
equal to four dollars and fifty cents ($4.50) per kilowatt of Contract
Capacity. Seller's deposits shall be In addition to any other deposits
required under this Contract. Seller's deposits shall be placed In
escrow and shall accrue Interest at the rate set by the Commission for
Interest paid on customer deposits.
11.1 If this Contract has not been approved by the Commission In
accordance with the provisions of Section 27, Seller's escrow deposit
plus accrued Interest shall be refunded to Seller. Seller's refund
shall be sent to Seller within sixty (60) days of the Commission's
failure to approve this Contract.
11.2 If Seller achieved Firm Operation at the level of capacity
specified in Section 1.4, Seller's escrow deposits plus accrued
Interest shall be refunded to Seller. Seller's refund shall be sent to
Seller within sixty (60) days of Firm Operation.
If Seller achieved Firm Operation at a level of capacity less than the
level of capacity specified In Section 1.4, Seller's escrow deposits
plus accrued Interest shall be prorated on the basis of actual
performance. That portion of Xxxxxx's escrow deposits plus accrued
Interest attributed to Xxxxxx's actual performance shall be refunded to
Seller; the balance shall be forfeited to Nevada. Seller's refund shall
be sent to Seller within sixty (60) days of Firm Operation.
11.4 If Seller failed to achieve Firm Operation, Seller's escrow
deposits plus accrued Interest shall be forfeited to Nevada.
11.5 Seller shall have the right to substitute irrevocable letters of
credit or surety bonds In the amounts of the escrow deposits for cash
deposits. Such Irrevocable letters of credit or surety bonds shall be
in a form acceptable to Nevada.
12 BILLING PROVISIONS: Nevada's bills, which have been rendered by Nevada
In accordance with the provisions of this Contract, shall be due upon
receipt by Seller and payable within twenty (20) days of receipt by
Seller. Seller shall make every reasonable effort to pay Nevada's bills
promptly. If Seller failed to make timely payment of any of Nevada's
bills, Nevada shall have the right, without liability to withhold the
amount due Nevada from payments due Seller for Capacity and Energy. If
Seller failed to make timely payment of any of Nevada's bills, Nevada
shall also have the right to exercise any other rights and remedies
available to Nevada In accordance with the provisions of this Contract.
13. CAPACITY AND ENERGY PAYMENT PROVISIONS:
13.1 Nevada shall send to Seller, not later than thirty (30) days after
the end of each monthly payment period, Nevada's statement showing the
Capacity and Energy received by Nevada during the payment period and
Nevada's check In payment of the amount due Seller. If two or more
rates were applicable to any payment period, Nevada's payment shall be
based upon the amount of Capacity and Energy received by Nevada during
the period each rate was applicable, or, If such Information was
unavailable, Nevada's payment shall be based upon the number of days
each rate was applicable.
13.2 Seller shall have the right of access to Nevada's records that are
reasonably required to confirm the accuracy of Nevada's statement.
Seller shall, within thirty (30) days of Seller's receipt of Nevada's
statement, notify Nevada In writing of any error In Nevada's statement.
If Seller failed to provide such notice, Seller shall have waived all
rights to an adjusted payment for the subject payment period.
If Seller notified Nevada of an error In Nevada's statement or If
Nevada discovered an error In Nevada's statement within thirty (30)
days of the Issuance of Nevada's statement, Nevada shall provide an
adjusted statement to Seller. If Nevada's error resulted In an
additional payment to Seller, Nevada's check In payment of the amount
due Seller shall accompany the adjusted statement. If Nevada's error
resulted In a refund to Nevada, Nevada's bill for the amount due Nevada
shall accompany the adjusted statement.
14. TAXES:
14.1 Seller shall pay ad valorem and other taxes properly attributed to
Xxxxxx's Facilities.
14.2 Nevada shall pay ad valorem and other taxes properly attributed to
Nevada's Facilities.
14.3 Seller and Nevada shall provide Information concerning either
Party's Facilities to any requesting taxing authority.
14.4 Nevada shall pay franchise and other taxes properly attributed to
Nevada's resale of Capacity and Energy.
15. LIABILITY:
15.1 Neither Party shall be saved harmless and indemnified from any
loss and liability resulting from that Party's negligence or willful
misconduct.
15.2 Each Party shall release the other Party from any loss and
liability, whether direct or Indirect and Including attorney's fees and
other costs of litigation, resulting from damages to property of the
releasing Party arising out of the other Party's efforts to perform Its
obligations under this Contract to the extent that such damages were
not caused by negligence or willful misconduct of the Indemnified
Party.
15.3 Each Party shall be solely responsible for the costs and liability
of all claims brought by Its employees or contractors and shall save
harmless and Indemnify the other Party from all such costs and
liability. Costs arising out of worker's compensation laws shall be
deemed employee related claims for the purposes of this section.
15.4 Each Party shall save harmless and indemnify the other Party from
any loss and liability, whether direct or Indirect and Including
attorney's fees and other costs of litigation, resulting from the
Injury or death of any person and damages to any property of a third
party arising out of the Indemnifying Party's performance of
obligations under this Contract to the extent that such Injury, death,
or damages were not caused by negligence or willful misconduct of the
Indemnified Party.
16. INSURANCE: Until this Contract has been terminated, Seller shall
maintain comprehensive general liability coverage with a minimum
combined single limit per occurrence of five million dollars
($5,000,000.00). Seller's Insurance policy shall be subject to Nevada's
approval. Seller shall deliver a copy of Seller's Insurance policy to
Nevada prior to the date Seller's Interconnection Facilities are first
energized. Seller's Insurance policy shall provide for thirty (30) days
written notice of alteration or termination to Nevada. Seller shall
also provide an Insured endorsement to Nevada in the form set forth In
Exhibit F.
If Seller failed to comply with the provisions of this section, Seller
shall save harmless and indemnify Nevada from any loss and liability,
whether direct or Indirect and Including attorney's fees and other
costs of litigation, resulting from the Injury or death of any person
or damage to any property to the extent that Nevada would have been
protected had Seller compiled with these provisions. If Seller failed
to comply with the provisions of this section, Nevada shall have the
right, without liability, to refuse to connect or to Isolate Seller's
Facilities from Nevada's system. Once Isolated, Seller's Facilities
shall remain isolated until Seller Is In compliance with these
provisions.
17. UNCONTROLLABLE FORCES: Except as otherwise provided in Section 10, if
Uncontrollable Forces rendered a Party wholly or partially unable to
perform any obligations under this Contract, the non-performing Party shall
be excused from such performance provided that Party delivered a written
description of the problem to the other Party within two weeks of the
occurrence; that the suspension of performance was no greater In magnitude
and no longer In duration than was dictated by the problem; that the
non-performing Party made every reasonable effort to alleviate the problem
except that neither Party shall be required to settle any labor dispute on
terms that It deemed contrary to Its best Interest; and that the
non-performing Party notified the other Party In writing as soon as the
non-performing Party was able to resume full performance of Its obligations
under this Contract.
18. NON-DEDICATION OF FACILITIES: By this Contract, neither Party dedicated
any part of Its facilities to the public or to the service provi'ded
under this Contract. Such service shall cease upon termination of this
Contract.
19. AMENDMENTS: Unless otherwise specified herein, all modifications to
this Contract shall require amendments to this Contract. Amendments to
this Contract shall be In writing and shall be executed by both
Parties.
20. PREVIOUS COMMUNICATIONS: This Contract contains the entire agreement
and understanding between the Parties thereby merging and superseding
all prior agreements and representations by the Parties.
21. NON-WAIVER: Any waiver of the provisions of this Contract shall be ir
writing. The failure of either Party to Insist upon strict performance
of Contract provisions or to exercise any Contract right shall not be
construed as a waiver of such Contract provision or a relinquishment of
such Contract right.
22. DISPUTES: The Parties shall negotiate In good faith and attempt to
resolve any dispute arising between the Parties and requiring an
Interpretation of the provisions of this Contract. However, If the
Parties are unable to resolve any such dispute, either Party shall
have the right to submit a demand that such dispute be arbitrated to
the other Party. If such a demand is submitted, the dispute shall be
resolved by arbitration conducted In accordance with the rules of the
American Arbitration Association (AAA). If such a dispute arises, the
demanding Party shall file a request with the AAA for the selection,
pursuant to the AAA rules, of a member of the AAA In good standing who
shall serve as the sole arbitrator. After the arbitrator has been
selected, the arbitration shall be held In Las Vegas, Nevada. The
Parties shall proceed with the arbitration expeditiously and shall
conclude all proceedings thereunder so that a decision may be rendered
within one hundred twenty (120) days of the submittal of the demand
for arbitration. Pending resolution of dispute, the Parties shall
proceed diligently with the performance of their obligations under
this Contract. The award of the arbitrator shall be final and binding
on both Parties and shall be enforceable by any court having
Jurisdiction over the Party against which enforcement is sought. Each
Party shall bear Its own costs associated with resolution of the
dispute except that all costs associated with the arbitration shall be
apportioned In the award of the arbitrator based upon the respective
merit of the claims of the Parties.
23. REMEDIES: Except as otherwise set forth in this Contract, each Party,
upon the other Party's failure to perform in accordance with the
provisions of this Contract, shall have the right to exercise any
right or remedy that Party may have at law or in equity including but
not limited to compensation for monetary damages such as the cost of
removal and/or abandonment of Nevada's Facilities and the incremental
cost of replacement power plus the incremental installed cost of
replacement generation and transmission facilities, injunctive relief,
and specific performance except that neither Party shall be liable for
any indirect, consequential, incidental, punitive, or exemplary
damages. If applicable, forfeited escrow deposits and/or refunded
Capacity and Energy payments shall be subtracted from monetary damages
due Nevada in accordance with the provisions of this section.
24. ASSIGNMENT AND DELEGATION: Neither Party shall assign any right nor
delegate any duty under this Contract without the written consent of
the other Party; except Seller shall have the right to assign Seller's
rights under this Contract as collateral In conjunction with project
financing without Nevada's consent. Consent for assignment or
delegation shall not be unreasonably withheld or delayed.
If Seller assigns Seller's rights as collateral In conjunction with
project financing, Lender shall have the right to appoint, subject to
Nevada's prior written approval, operating agents who shall assume
responsibility for the construction, operation, and maintenance of
Seller's Facilities if Seller falls to perform in accordance with the
provisions of this Contract. Nevada's approval shall not be
unreasonably withheld or delayed. If Xxxxxx's operating agent(s) fall
to cure Seller's default within thirty (30) days of such default,
Nevada shall have the right, without liability, to terminate this
Contract. If Xxxxxx's operating agent(s) fall to perform in accordance
with the provisions of this Contract, Nevada shall have the right,
without liability, to terminate this Contract.
25. GOVERNING LAW: This Contract shall be interpreted under the laws of the
State of Nevada as if executed and performed wholly within that state.
26. NATURE OF OBLIGATIONS: Unless otherwise agreed upon by the Parties and
set forth herein, the duties, obligations, and liabilities of the
Parties shall be several; not joint or collective. The provisions of
this Contract shall not be construed as creating an association, trust,
partnership, or joint venture; as Imposing a trust or partnership duty,
obligation, or liability on either Party; or as creating any
relationship between the Parties other than that of Independent
contractors for the sale and purchase of electric capacity and/or
energy. Nothing in this Contract nor any action taken hereunder shall
be construed as creating any duty, liability or standard of care to any
person not a Party to this Contract.
27. COMMISSION APPROVAL: Within thirty (30) days of Contract execution,
Nevada shall submit this Contract to the Commission for review and
approval. This Contract shall be void unless approved by the Commission
as executed.
28. SIGNATURES:
IN WITNESS WHEREOF, the Parties hereto have executed this Contract this
Second day of May, 1989.
BONNEVILLE NEVADA CORPORATION:
By:
Name: X. X. Xxxxxx
Title: President
NEVADA POWER COMPANY:
By:
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
