ML20081B572
| ML20081B572 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 03/08/1995 |
| From: | Coyle J DUNCAN & ALLEN (FORMERLY DUNCAN, ALLEN & TALMAGE, PLAINS ELECTRIC GENERATION & TRANSMISSION COOPERATIVE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20081B171 | List: |
| References | |
| 2.206, NUDOCS 9503160259 | |
| Download: ML20081B572 (43) | |
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DOCKETED '
' UNITED STATES OF AMERICA- !
BEFORE-THE % - E -9 'P2 :39 i
". NUCLEAR REGUIATORY_ COMMISSION.
OFflCE OF SECRETARY
- ) 00CKETING &: SERVICE - '
In the Matter off -) .BRANCHi
. -) ..
ARIZONA PUBLIC' SERVICE CO.,-et al. )- ~ Docket No.LSTN 50-528:- l'
') Docket No.:STN:50-529'.
L '(Palo Verde Nuclear Generating- ) -Docket No.-STN 50-530 Station, Unit 11 , )
(Indirect Transfer of Facility. Operating License i i ) '
No. NPF-41) J' . Control; Antitrust l
) :. Issues)
L (Palo; Verde Nuclear Generating ): ,
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Station, Unit 2 ,
Facility' Operating License ')L 'l No. NPF-51) ) !
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.) l l (Palo Verde Nuclear. Generating ). !
Station,-Unit.3 . :
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Facility Operating License' -)- ,
l 'No. NPF-74) ) l
- l. ) l MOTION OF PLAINS ELECTRICLGENERATION'AND TRANSMISSION COOPERATIVE, INC. TO WITHDRAW, WITH-PREJUDICE, PETITION FOR LEAVE.TO. INTERVENE; REQUEST.FOR FINDING OF li SIGNIFICANT CHANGE AND FOR ANTITRUST HEARING;. j AND PRELIMINARY COMMENTS.ON ANTITRUST ISSUES' l Plains Electric Generation and. Transmission Cooperative, Inc. (" Plains") moves,' pursuant to Section 2.730 of the Commission's Rules of Practice (10 C.F.R. S 2.730) to withdraw, with prejudice, its petition for leave to intervene; request for finding of~significant change and for antitrust hearing; and preliminary comments on antitrust issues-(" Plains' Petition"), filed herein on April 1,.1994. As grounds for its motion, Plains states as follows:
l' 9503160259 PDR 950308 N ADOCK 05000528 PDR
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- 1. On September 21, 1994, Plains entered into a Settlement Agreement (Exhibit 1) and a Long Term Firm Transmission Service Agreement (Exhibit 2) with El Paso
' Electric Company ("EPE").
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- 2. On January 13, 1995, EPE' filed the Long Term I Firm Transmission Service Agreement with the Federal' Energy Regulatory Commission ~("FERC") pursuant to Sections 205_and 206 of the Federal Power Act (16 U.S.C. SS 824d, 824e). The FERC thereafter docketed the matter as No. ER95-423-000, and issued'a notice of filing with respect to the Long Term Firm .
l Transmission Service (60 Fed. Reg. 6076-6077 (February 1, 1995)) and is expected to issue its order thereon in due ,
course.
- 3. The Long Term Firm Transmission Service' i
Agreement fully and finally resolves each and all of the i concerns expressed by Plains in Plains' Petition, and in Plains view obviates any need for further Commission inquiry or action on those concerns. In recognition of that resolution, Plains has undertaken in Section 8 of the !
Settlement Agreement (Exhibit 1, S 8) to withdraw Plains' Petition in this proceeding.
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WHEREFORE, Plains respectfully requests.that the Commission grant its motion and deem Plains' Petition withdrawn with prejudice.
Respectfully submitted, l
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p'o ld R.d llEn,f\ sq.
Joh P. Coyle, Fs .
Dun, n & Allen 15M Eye Street',-N.W.
Washington, D.C. 20005 Telephone: (202) 289-8400 Fax: .(202) 289-8450 Richard N. Carpenter, Esq.
Carpenter, Comeau, Maldegen, Brennan,, Nixon & Templeman P.O. Box 669 141 East Palace Avenue' Santa Fe,-New Mexico 87504 Telephone: (505) 982-4611 Counsel for Plains Electric Generation ~& Transmission Cooperative, Inc.
Dated at Washington, D.C.
this 8th day of March, 1995.
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SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT' AGREEMENT AND RELEASE,. dated as of this 71st . day of September,1994, by and among Plains Electric Generation and Transmission Cooperative, Inc.
(" Plains"), and El Paso Electric Company ("EPE") (individually, " Party"; collectively, " Parties").
WITNESSES
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i SECTION 1. RECITALS l This Settlement Agreement and Release is made with reference to the following facts, among l others.
5 1.1 On June 5,1987, EPE and Plains executed the Plains /El Paso Letter of Understanding -
l Transmission-Related Matters (the "1987 Letter Agreement").
L 1.2 On December 12,'1991, Plains filed a lawsuit against EPE in the United States District Court for the District of New Mexico. The Case is styled Plains Electric Generation and Transmission Cooperative. Inc. v. El Paso Electric Company; Cause No. CIV91-1199-JP/RWM (the " Federal Lawsuit").
1.3 EPE filed in the United States Bankruptcy Court for the Western District of Texas, Austin Division (the " Bankruptcy Court") a voluntary petition for relief pursuant to Chapter 11 of l Title 11 of the United States Bankruptcy Code on January 8,1992, docketed as Case No.
' 92-10148-FM ("EPE's Bankruptcy Case"). On December 8,1993, the Bankruptcy Court l entered an order confirming EPE's Modified Third Amended Plan of Reorganization, as corrected through December 6,1993.
1.4 On June 12,1992, Plains filed its Proof of Claim Numbered 266 (the " Proof of Claim") in l EPE's Bankruptcy Case seeking damages in an unliquidated amount in connection with the Federal Lawsuit.
1.5. On July 23,1993, EPE filed with the New Mexico Public Utility Commission (NMPUC)
- an application, NMPUC Docket No. 2527, for a certificate of public convenience and l necessity to construct and operate a phase shifting transformer ("PST") at its Arroyo l
Substation (the "CCN Proceeding). On August 11,1994, EPE filed a motion for leave to withdraw testimony, and on August 17,1994 EPE filed replacement testimony in support of the PST with the NMPUC.
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1.6 On January 10,1994, EPE and Central and South West Services, Inc., filed with the Federal Energy Regulatory Commission ("FERC") a Joint Application for Authorization of Merger, which Application was thereafter docketed by FERC as No. EC94-7-000 (hereafter, as l subsequently consolidated by FERC with FERC Docket No. ER94-898-000, the "FERC Proceedings).
1.7 On January 13, 1994, an Application for Consent to Indirect Transfer of Control of Operating License was filed with the U.S. Nuclear Regulatory Commission ("NRC") in )
i NRC Docket Nos. STN 50-528, STN 50-529 and STN 50-530 -- Arizona Public Service Co.. et al. -- on behalf of Central and South West Corporation ("CSW) and EPE (hereafter, ;
the "NRC Proceeding").
1.8 On March 14, 1994, EPE and CSW filed with the NMPUC an Application for Authorization to Merge and for Related Approvals, which proceeding was thereafter docketed by the NMPUC as No. 2575 (the "NMPUC Merger Proceeding").
l 1.9 On August 9,1993, Plains filed its Motion of Plains Electric Generation & Transmission Cooperative, Inc. for Leave to Intervene in the CCN Proceeding.
l 1.10 On February 25,1994, Plains filed a Motion to Intervene, Protest and Request for Hearing in the FERC Proceedings.
1.11 On April 1,1994, Plains filed a Petition for Leave to Intervene, Request for Finding of Significant Change and for Antitrust Hearing, and Preliminary Comments on Antitrust Issues in the NRC Proceeding (hereafter "NRC Intervention").
1.12 On May 4,1994, Plains filed a Motion for Leave to Intervene and Request to Expand Service List in the NMPUC Merger Proceeding.
1.13 During the course of the foregoing proceedings, Plains and EPE have agreed to the terms of a Long Term Firm Transmission Service Agreement (the " Transmission Agreement")
pursuant to Section 4 of the 1987 Letter Agreement which resolves the issues raised by Plains and EPE in the Federal Lawsuit, the Proof of Claim, the CCN Proceeding and the concerns expressed by Plains with respect to the merger of EPE into CSW in the interventions described in Sections 1.10,1.11, and 1.12.
SECTION 2. AGREEMENT l
l In consideration of the implementation of the Transmission Agreement and the mutual obligations l and undertakings set forth therein, and the mutual obligations and undertakings set forth in this-l Settlement Agreement and Release, the Parties agree as follows:
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SECTION 3. SPECIAL RELEASE :
The Parties agree that the execution and implementation of the Transmission Agreement and this Settlement Agreement resolve all disputes between the Parties concerning the 1987 Letter ;
Agreement, and that the Transmission Agreement, once effective, will supersede the 1987 Letter ,
Agreement in its entirety. Accordingly, upon the Effective Date of the Transmission Agreement (as defined therein), the Parties shall each specially release and forever discharge each other, their respective Directors, Officers, agents and employees from any and all claims, demands or causes of action of whatever kind or character, arising out of or in any way related to, the matters heretofore asserted by either of them with respect to the 1987 Letter Agreement and in the l Federal Lawsuit and the Proof of Claim.
SECTION 4. THE 1987 LETTER AGREEMENT On the Effective Date (as defined in the Transmission Agreement) of the Transmission Agreement, the 1987 Letter Agreement shall terminate and shall be superseded in its entirety by ,
the Transmission Agreement. However, so long as no action is taken by any regulatory body or ,
court having jurisdiction over the subject matter of this Settlement Agreement or the Transmission l Agreement to prevent the Transmission Agreement from becoming effective, and so long as EPE and Plains continue, in good faith, to take all actions necessary and appropriate to implement and make effective the Transmission Agreement, Plains and EPE shall refrain from asserting any claim with respect to 1987 Letter Agreement. In the event that the Transmission Agreement is denied approval by any regulatory body or court having jurisdiction over the subject matter of this Settlement Agreement or the Transmission Agreement, the Parties agree that each will retain the respective rights and obligations they had prior to entering into this Settlement Agreement and the Transmission Agreement.
SECTION 5. THE FEDERAL LAWSUIT Upon the Effective Dae (as defined in the Transmission Agreement) of the Transmission Agreement, P!.nins and EPE shall enter into, execute and file a stipulation for dismissal, with prejudice, of the Federal Lawsuit and each claim or counterclaim asserted by either Party therein.
SECTION 6. THE PROOF OF CLAIM Upon the approval of this Settlement Agreement and the Transmission Agreement by the Bankruptcy Court, Plains shall withdraw, with prejudice, the Proof of Claim.
SECTION 7. NRC INTERVENTION Upon EPE's filing of the Transmission Agreement with the FERC, Plains shall withdraw, with prejudice, its NRC Intervention.
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SECTION 8. FERC PROCEEDINGS l Plains shall continue to have party status as an intervenor in the FERC Proceedings, as granted l by the FERC's Order of August 1,1994 in El Paso Electric Co. and Central and South West l Services. Inc. 68 FERC Para. 61,181. Effective on the execution of this Agreement Plains' i participation in the FERC Proceedings shall be limited as follows: l 8.1 Plains shall not: (a) propound discovery to EPE or CSW, (b) file testimony, except as may ,
be necessary to protect the Parties' mutual interests in this Settlement Agreement and the Transmission Agreement, (c) engage in cross-examination adverse to any position taken by EPE or CSW in support of the merger, or (d) file any motion, brief or legal memorandum i adverse to any position taken by EPE or CSW in support of the merger. :
8.2 Plains may, at its sole option: (a) continue to receive and review any documents it is entitled to receive by virtue of its representation on the Restricted Service List; (b) upon request, receive and review any discovery it is entitled to receive and review by virtue of its party status and on the terms and conditions available to it as a party to the proceedings; i
(c) appear in connection with and generally monitor the progress of the FERC Proceedings, and d) present testimony, engage in cross-examination of EPE, CSW or any other party and take a position in a brief or other legal argument adverse to EPE, CSW or both EPE and CSW with respect to issues which may affect Plains but which, as of the date of this Agreement, have not been determined or discovered and could not have been determined or discovered with the exercise of reasonable diligence.
SECTION 9. NMPUC MERGER PROCEEDING Plains shall continue to have party status as an intervenor in the NMPUC Merger Proceeding. .
Effective on the execution of this Agreement, Plains' participation in the NMPUC Merger l Proceeding shall be limited as follows:
9.1 Plains shall not: (a) propound discovery to EPE or CSW, (b) file testimony, except as may be necessary to protect the Parties' mutual interests in this Settlement Agreement and the Transmission Agreement,(c) engage in cross-examination adverse to any position taken by EPE or CSW in support of the merger, or (d) file any motion, brief or legal memorandum ;
adverse to any position taken by EPE or CSW in support of the merger. l 9.2 Plains may, at its sole option: (a) continue to receive and review any documents it is l entitled to receive by virtue of its representation on the Service List; (b).upon request, l receive and review any discovery it is entitled to receive and review by virtue of its party l l status and on the terms and conditions available to it as a party to the proceeding; (c) ;
! appear in connection with and generally monitor the progress of the NMPUC Merger Proceeding; and d) present testimony, engage in cross-examination of EPE, CSW or any other pany and take a position in a brief or other legal argument adverse to EPE, CSW or j both EPE and CSW with respect to issues which may affect Plains but which, as of the date 4
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of this Agreement, have not been determined or discovered and could not have been determined or discovered with the exercise of reasonable diligence. ,
1 SECTION 10. NMPUC CCN PROCEEDING Plains shall continue to have party status as an intervenor in the CCN Proceeding. Effective on i the execution of the Settlement Agreement, Plains' participation in the CCN Proceeding shall be l limited as follows: l 1
10.1 Plains shall not: (a) propound discovery to EPE or CSW, (b) file testimony, except as may !
be necessary and in accordance with this Settlement Agreement and the Transmission Agreement to protect the Parties' mutual interests in this Settlement Agreement and the i 4
Transmission Service Agreement, (c) engage in cross-examination adverse to any position .
taken by EPE or CSW in support of the CCN Proceeding, or (d) file any motion, brief or legal memorandum adverse to any position taken by EPE or CSW in support of the CCN Proceeding. l 10.2 Plains may, at it sole option: (a) continue to receive and review any documents it is entitled to receive by virtue of its representation on the Service List; (b) upon request, receive and review any discovery it is entitled to receive and review by virtue ofits party status and on the terms and conditions available to it as a party to the proceeding; and (c) appear in connection with and generally monitor the progress of the CCN Proceeding d) present_ )
testimony, engage in cross-examination of EPE, CSW or any other party and take a position !
in a brief or other legal argument adverse to EPE, CSW or both EPE and CSW with respect I l '
. to issues which may affect Plains but which, as of the date of this Agreement, have not been determined or discovered and could not have been determined or discovered with the exercise of reasonable diligence.
SECTION 11. COUNTERPARTS; EFFECTIVE DATE This Settlement Agreement may be executed in cottnterparts which shall, upon execution, be exchanged by the Parties hereto. This Settlement Agreement shall be binding on the Parties hereto as of the last date of execution of a counterpart.
SECTION 12. BANKRUPTCY COURT APPROVAL This Settlement Agreement and the Transmission' Agreement shall not become effective until' i approved by the Bankruptcy Court. EPE agrees to promptly seek such approval. In agreeing to EPE's submission of this Settlement Agreement and the Transmission Agreement for Bankruptcy Court approval, Plains reserves its rights to contest the jurisdiction of the Bankruptcy Court over (a) Plains generally, (b) the Transmission Agreement, (c) any other matter referenced in the Settlement Agreement other than the Proof of Claim. By allowing - l l
Plains to assen such reservation ofits rights, EPE does not waive its rights to contest such l l- allegations.
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SECTION 13. EXECUTION The signatories to this Settlement Agreement represent that they have been appropriately j
. authorized to execute this Settlement Agreement on behalf of the Party for which they sign. This Settlement Agreement is executed as of the Tt day of September,1994. l l
PLAINS ELECTRIC GENERATION AND i TRANSMISSION COOPERATIVE,INC. :
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f - 4+ n 'l BF David L3igCs ;
ITS Executive Vice President / :
General Manager 'l i
t EL PASO ELECTRIC COMPANY j i
f I BY Joh(/. Horne
, ITS Vice President, Power Supply l
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LONG TERM FIRM TRANSMISSION SERVICE AGREEMENT BETWEEN -
. EL PASO ELECTRIC COMPANY AND PLAINS ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC.
Execution Date: Seottmbt KMqst Effective Date:
l LONG TERM FIRM TRANSMISSION SERVICE AGREEMENT .
BETWEEN l EL PASO ELECTRIC COMPANY. ,
AND PLAINS ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. l l
i TABLE OF CONTENTS :
SECTION 1: PARTI ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 l
, SECTION 2: RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l ;
SECTION 3: AGREEM ENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2' !
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l SECTION 4: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 i SECTION 5: EFFECTIVE DATE AND TERM . . . . . . . . . . . . . . . . . . . . . . 6 i SECTION 6: ' FIRM TRANSMISSION SERVICE . . . . . . . . . . . . . . . . . . .. . . 8 SECTION 7: SCHEDULING; POINTS OF RECEIPT AND DELIVERY ...... 9 SECTION 8: LOSSES; EXCESS FLOW RESPONSIBILITY . . . . . . . . . . . . . . 11 t
l SECTION 9: RATES ...................................... 13 i
SECTION 10: BILLING AND PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 11: LIABILITY . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . 18'
- SECTION 12
- AUTHORIZED REPRESENTATIVES .. . . . . . . . .. . . . . . . . . . 19 SECTION 13: NO DEDICATION OF FACILITIES ................... 19 SECTION 14: NO THIRD PARTY RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 20 SECTION 15: UNCONTROLLABLE FORCES . . . . . . . . . . . . . . . . . . . . . 20 SECTION 16: ASSIGNMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 l
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TABLE OF CONTENTS (Continued) ;
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SECTION 17: GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . , . . . . 21 !
SECTION 18: NON-WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 19: REGULATORY AND GOVERNMENTAL APPROVAL . . . . . . 21 .
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- SECTION 20
- INFORMATION EXCIIANGE . . . . . . . . . . . . . . . . . . . . . 21 l SECTION 21: ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 1
SECTION 22: AMENDMENTS . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 22 i
SECTION 23: N OTIC ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 24: SECTION HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 !
i SECTION 25: CONTRACT' CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . 23 i
SECTION 26: SIGNATURE CLAUSE ........................... 24 EXHIBIT 1 EXHIBIT 2 l l
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l I LONG TERM FIRM TRANSMISSION SERVICE AGREEMENT - !
i L 2 BETWEEN -!
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'3 - EL PASO ELECTRIC COMPANY- 1 I
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5 PLAINS ELECTRIC GENERATION ~AND TRANSMISSION COOPERATIVE, INC. .j i
6 SECTION 1: PARTIES '
- 7. - The 'panies to this' Agreement are El Paso Electric Company, a Texas corporation L j i
'8 ("EPE"); and Plains Electric Generation and Transmission Cooperative,-Inc.. a .j i
9 New Mexico non-profit corporation and rural electric generation and transmission. !
.i 10 cooperative (" Plains"); individually " Party" and collectively!"Paniek" l L l 11- SECTION 2: RECITALS !
' -l 12 This Agreement is made with reference to the following facts, among'others: .
13 2.1 EPE is engaged in the generation, transmission and distribution of 14 electricity in the States of New Mexico and Texas, and in the generation i .
l 15 and transmission of electricity in the State of Arizona.- 1 i
16 2.2 Plains is engaged in the generation and transmission of electricity in the l
. i 17 State of New Mexico, which it sells to various member cooperatives-18: pursuant to long term firm power sales agreements.
19 2.3 On June 5,1987. EPE and Plains executed a letter agreement (the "1987 l
l 20 Letter Agreement") providing, among other things and subject to certain 21~ conditions, that EPE would provide to Plains an ownership interest in 22 EPE's 345 kV Arizona Interconnection Project ("AIP") and cenain l
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L1 transmission rights over other transmission facilities owned by EPE in the i L ,
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! '2 State of New Mexico.
7 h '3 2.4 . This Agreement is entered into by the Parties pursuant to paragraph 4 of. l l _ . !
4 the 1987 letter Agreement whereby Plainswill purchase firm transmission 5 . service in lieu of the purchase of transmission assets ' discussed in Section' >
6' 2.3 above. The Panies intend that this Agreement, once it becomes. j 7 effective, will supersede all terms and conditions of the 1987 Ietter l 8 Agreement.
l 9 2.5 Plains desires to purchase, and EPE desires to provide, firm transmission.
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10: service in accordance with the terms and conditions specified in this ' l 11' Agreement. !
12 2.6 The Parties intend that the rates and terms and conditions of service under i 13 this Agreement be fixed for the entire term of this Agreement except as ~ ;
i 14 specifically provided for in this Agreement. ;
i 15 SECTION 3: AGREEMENT ~
16 In consideration of the premises and mutual covenants, obligations and .!
i i i 17 undertakings contained herein, and other good and valuable consideration, the - l l
18 Parties agree as follows:
i L 19 SECTION 4: - DEFINITIONS L
20 The following terms, when used herein with initial capitalization, whether in the 21 . singular or the plural, shall have the meanings specified:
22 4.1 Actual Southern New Mexico Imoorts: - The ' sum of real electrical power .
23 flows as metered at the'Springerville, Greenlee and West Mesa substations !
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i 1: flowing onto the Southern New Mexico Transmission System in any given -
2 hour. The metering points for measuring Actual Southern New Mexico .
.3 Imports, as defined in the previous sentence, may change from time to l
l 4- time without the imposition of any additional costs on Plains for Firm . -
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- Transmission Service and without any adverse effect on'the quality or i 6 quantity of such Firm Transmission Service to Plains.- '
i j 7 4.2 Aereement: This EPE-Plains Long Term Firm Transmission Service 8 Agreement, including all exhibits and attachments hereto. together with any 9 amendments to which the Parties may agree in writing from time to time.
l 10 4.3 Annual Schedule: The amount of System Transfer Capability, expressed in -
11 megawatts (MW), provided for Plains' use under this Agreement in a .
12 panicular Contract Year.
13 4.4 Authorized Renresentative: The representative of a Party designated in j l 14 accordance with Section 12.
15 4.5 Contract Year: A twelve month period beginning at 12:01 a.m. on the 16 anniversary of the Effective Date of this Agreement.
, 17 4.6 Curtailment Condition: A scheduled or unscheduled outage which reduces l l l 18 the System Transfer Capability.
19 4.7 Effective Date: The first date on which this Agreement becom.s effective, 20 pursuant to Section 5.1 hereof.
- 21 4.8 FERC
- The Federal Energy Regulatory Commission.
22 4.9 Firm Transmission Service: Transmission service provided by EPE to 23 Plains under this Agreement, which transmission service shall be of the 3
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l 'l same priority, kind, quality and character as EPE's rights to firm 2 transmission capacity on the SNMTS. l 3 4.10 Load Servine Canability: Service in the form of transmission service or: '
4 energy sales that will be provided by EPE to Plains as described in:
5' Section 5.2, in the event that EPE's Arroyo phase shifting transformer is ;
i 6 delayed. This service will be provided,~if necessary, in order to ensure -
7 that Plains' southern New Mexico loads continue to be served until Firm -
8- Transmission Service can commence, I
9 ' 4.11_ Ooeratine Nomorram: The set of values, as accepted from time to time.by !
l 10 the New Mexico Power Pool in accordance with procedures and processes :
11 adopted by it, which defines the safe and reliable operating limits of the t 12 Southern New Mexico Transmission System'and the northern New Mexico 13 transmission system under various operating conditions.
14 4.12 Southern New Mexico Transmission' System: The transmission system 15 consisting of transmission lines equal to or greater than 115kV which 16 interconnect southern New Mexico at the West Mesa, Springerville'and 17 Greenlee Substations and in which Plains, EPE and others have an -
18' ownership interest (SNMTS). The transmission system comprising the 19 SNMTS may change from time to time without requiring amendment to 20 ' this Agreement; provided, however, that no such change made by or.with -
- 21. the consent of EPE shall in any way adversely effect'the amount, quality, l L
'22 priority or price of Firm Transmission Service provided'to Plains under -
L 23 this Agreement.
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1 4.13 System Transfer Canability: The transfer ability, expressed in MW, of ,
2 transmission facilities available to transmit power into the SNMTS, which i 3 from time to time is determined in the sole judgment of the operator of the 4 SNMTS to be the maximum safe and reliable power flow possible through j l !
5 such transmission facilities consistent with the applicable Operating i i
6 . Nomogram and generally accepted utility practices.
I 7 4.14 Uncontrollable Forces: Any cause beyond the control of a Party.which l 8 results in that Party being unable to perform an obligation under the terms' 9 of this Agreement, including, but not limited to, failure or threat of failure i 10 of facilities, flood, drought,' earthquake, storm, fire, pestilence, lightning l 11 and other natural catastrophes, epidemic, war, riot, civil disturbance or !
12 disobedience, strike, labor dispute, labor or material shonage, sabotage, j I
13 governmental priorities and restraint by coun order or public authority and 1 14 action or non-action by or inability to obtain the necessary authorizations 15 or approvals from any governmental authority, which by exercise of due i
16 diligence, such Pany could not reasonably have been expected to avoid and i i
i-l 17 which by exercise of due diligence it has been unable to overcome.
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-18 Nothing contained in this definition or in any provision of this Agreement 19 referring to Uncontrollable Forces shall be construed as to require a Pany l 20 to settle any strike or labor dispute in which it may be involved. Nothing i l
L 21 contained in this definition or in any provision of this Agreement referring 22 to Uncontrollable Forces shall be construed to relieve EPE of any 5 ;
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1L obligation to provide transmission service in accordance with this 2 Agreement in the event of an arbitration a' ward (' or a revised or modified .
3 arbitration award), or a decision or order of a governmental agency or 4 court, that has the effect of reducing EPE's entitlement with respect to the 5 SNMTS from the level that EPE contends exists as of the date of this
- i 6 - Agreement, where such award, decision or order is premised on the j i
7 configuration or operation of the SNMTS as of the execution date of this 8 Agreement.
9 SECTION 5: - EFFECTIVE DATE AND TERM 10 5.1 This Agreement shall become effective, and service to be provided 11 hereunder .chall conunence on the earlier of (1) the in-service date for.
12 EPE's Arroyo Phase Shifting Transformer (PST), or (2) November.1, _ i 13 1995. Upon the effective date of this Agreement, the 1987 Ietter.
14 Agreement shall terminate.
15 5.2 In the event that EPE's PST is not in service by November 1,1995, EPE 16 will, on that date, if Plains so requests, and continuing until the in-service i
17 date of its PST, provide Plains with equivalent Load Serving Capability in 18 the form of (a) transmission service at a price not to exceed $2.54/kW-mo.
19 from and to points of receipt and delivery acceptable to the Parties and/or 4
20 (b) power and energy at a price equal to EPE's incremental energy costs 21 for southern New Mexico generation at delivery point (s) acceptable to the 22 Parties. To the extent that both transmission and power and energy are 23 available for service to be provided pursuant to this Section 5.2, as -
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P j 1 reasonably determined by EPE, the amounts of each, up to the equivalent 2 Load Serving Capability of the current Annual Schedule as described in 3 Section 6, shall be determined by Plains. For EPE's Actual Excess Flow l
l 4 Responsibility, as defined in Section 8.2 hereof, if any, related to i
5 transmission service provided pursuant to (a) of the first sentence of this i
6 Section 5.2, Plains shall accept responsibility as described m Sections 7 8.2(a) and 8.2.2 hereof; Plains shall have no obligation relating to EPE's 8 Actual Excess Flow Responsibility related to power and energy provided i
9 pursuant to (b) of the first sentence of this Section 5.2. l l
( 10 5.3 Service under the rates, terms and conditions set fonh in this Agreement l l
l 11 shall terminate, subject to the provisions of Section 5.4 of this Agreement, ;
i 12 on midnight of the final day of the thirtieth (30th) Contract Year after l 13 commencement of Firm Transmission Service provided through EPE's i l
14 PST, pursuant to Section 5.1 hereof, unless earlier extended by mutual !
15 agreement of the Parties; provided, however, that all obligations to pay 16 money incurred prior to that date and time shall continue until satisfied.
17 5.4 The Panies recognize that, as pan of the consideration for entering into 18 this Agreement, Plains has foregone an opportunity to acquire an i
\
l l 19 ownership interest in cenain of EPE's transmission facilities. Accordingly, 1 t
20 the Parties wili, in connection with the expiration of this Agreement, enter 21 into a successor agreement, or amendment to this Agreement, providing 22 for comparable terms, conditions of service and pricing provisions in l
l 23 accordance with the firm transmission rate methodology then accepted by 7
1
i i
I I l
l l
i 1 the FERC (or a successor agency of comparable jurisdiction). In the event j l 2 that the Panies are unable to agree on the terms and conditions of such l
l 3 successor agreement or amendment prior to the termination date set forth j j 4 in paragraph 5.3 above, the Parties agree to submit any outstanding ,
i !
5 unresolved issues between them to arbitration by a panel of three l 6 arbitrators selected and appointed in accordance with the then effective l 7 Commercial Arbitration Rules of the American Arbitration Association, or l
l 8 another mutually agreeable forum. l
, 1 i
l 9 SECTION 6: FIRM TRANSMISSION SERVICE l i
10 6.1 EPE shall mak.e available to Plains, and Plains shall purchase from EPE, I
11 Firm Transmission Service over EPE's transmission facilities from the l 12 Points of Receipt set fonh in Section 7.1 or 7.4 hereof to the Point of i l
l 13 Delivery set forth in Section 7.1 or 7.4 hereof, in an amount equal to the 14 Annual Schedule. -
15 6.2 The initial Annual Schedule shall be not less than 30 MW, nor more than l l
16 35 MW of Firm Transmission Service, and shall be designated by written !
1 17 notice from Plains to EPE not later than 90 days prior to the Effective Date ,
i 18 of this Agreement; provided, however, and notwithstanding Column 2 of i
l 19 Exhibit 1, the Parties may by written agreement agree to an Annual l I
20 Schedule of less than 30 MW. Thereafter, subject to the provisions of l
21 Section 6.3 and Exhibit 1 attached hereto and made a part hereof, the l 22 Annual Schedule shall increase at the rate of 2 MW per Contract Year, up l
23 to a maximum Annual Schedule of 50 MW. l l 8 l i
,. . .- .- - - . ~ - - . .- .. - - -. -- .
1 I
i i
I 6.3 ' Plains shall have the unilateral right, by notice to EPE not later than 90 . i 2 days prior to the commencement of any Contract Year, to increase or l 1 1 3 ' decrease the Annual Schedule, including the 2 MW increase due in that ;
'4- Contract Year that would otherwise have been applicable. for such Contract 1 5- Year, by up to 15 percent, rounded up to the nearest whole MW, as shown 6 and explained on Exhibit 1. If no notice is provided by Plains pursuant to o.. , j 7 this Section 6.3, the next Contract Year's Annual Schedule will be'that .
~ i 8 shown in Column 3 of Exhibit 1. !
9 6.4 - In the event that System Transfer Capability is reduced due to a f i
10' Curtailment Condition, Firm Transmission Service to Plains shall be j
- l 11 subject to curtailment in the same proportion and on the same basis as EPE.
- t l
i 12 curtails its own rights to firm transmission capacity on the SNMTS. l l
13 During a curtailment of Plains' Firm Transmission Service, EPE will !
14- provide, at Plains' request, generation, if available, for Plains' southern l
15 New Mexico loads for the duration of any such curtailment, in accordance -
16 with Service Schedule B of the Revised Inland Power Pool Agreement, or g 17 the then effective service schedule to such agreement or any successor !
L 18 agreement which is of similar technical scope and applicability.
l 19 SECTION 7: SCHEDULING: POINTS OF RECEIPT AND DFITVERY l 20 7.1 Plains shall have the right to the use of its entire Annual Schedule in any 21 Contract Year for the receipt of electric power and energy for transmission' j' 22 to Plains by EPE at either the Springerville 345 kV bus or the West Mesa L
I. -- _ , .,. _ . . _ , _ - - - .a.J
i 1 345 kV bus or a combination of the two, and for delivery of such electric l
l 2 power and energy to Plains by EPE at the Las Cruces 115 kV bus.
3 7.2 Additional Points of Receipt and Delivery under this Agreement may be l 4 established by mutual agreement of the Parties, which agreement: (a) shall 5 not be unreasorably withheld and (b) shall include an appropriate allocation 6 or apportionment of the costs, if any, associated with the establishment of 1
7 any such additional Points of Receipt or Delivery.
8 7.3 Plains has obtained from Public Service Company of New Mexico (PNM)
! 9 or other utilities (including the Western Area Power Administration) rights 10 at or in conjunction with the West Mesa 345 kV terminal to schedule l 11 power and energy across EPE's PST sufficient to implement the terms of 12 this Agreement and will be solely responsible for obtaining and maintaining .
13 those rights and for mitigating such impacts on PNM's system and j 14 operations as are demonstrably attributable to Plains' receipt of the i
15 transmission service provided under this Agreement. Plains agrees that ;
16 PNM must accept Plains' schedules for Firm Transmission Service with !
17 EPE.
18 7.4 Plains shall schedule its firm transmission service to be provided under this 19 Agreement at the Springerville or West Mesa 345kV bus or both, or such 20 other Delivery Point (s) as agreed to pursuant to Section 7.2, and shall 21 provide EPE with telemetered readings of Plains' southern New Mexico 22 loads on a real time basis. Such telemetered readings shall be of such 23 adequacy as to allow EPE to monitor Plains' actual southern New Mexico 10
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l' loads on a real time basis, according to operating procedures to be
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'2. developed by the Authorized Representatives prior to the first day service i 3 is provided under this Agreement. Additionally, Plains shall provide EPE l
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4 ,
.4 with estimated schedules of its total southern New Mexico loads on an i
l S. hourly basis each day'for the next day. l I
L 6 SECTION 8: LOSSES: EXCESS FLOW RESPONSIBILITY ~i
! i L 7 8.1 Plains shall be responsible for a pro rata share of EPE's' average j
- ~!
8 transmission system electrical losses based on Plains' hourly scheduled use l
l :
9 of Firm Transmission Service under this Agreement, at EPE's average !
transmission system loss rate of 4.5%. .. This rate may be changed once per l 11 calendar year by written agreement of the Authorized Representatives, as i
12 such representatives are defined in Section 12 of this Agreement; 13- Scheduling of energy to compensate for transmission losses shall be l 14 determined by the Authorized Representatives as administered by the h 15 Panies' system controllers.
l 16 8.2 The Parties recognize that EPE has transmission arrangements with Tucson 17 Electric Power Company ("TEP") that may, in some circumstances, 18 require EPE to pay excess losses or additional wheeling charges to TEP for
, 19 excess flow of electricity across TEP's transmission facilities, as described 20 in Section 6.10 of the interconnection Agreement between EPE and TEP' 21 dated June 28,1991 ("EPE-TEP Interconnection Agreement"). - Subject to
[ 22 the formula set forth in Section R.2.2 of this Agreement, and at Plains' t
l
- 23. sole option, Plains agrees either to (a) compensate EPE for a pro rata share 11
~
1 of excess losses or additional wheeling charges actually paid by EPE to-2 TEP as the result of excess flow under EPE's transmission arrangements.
3 with TEP ("EPE's Actual Excess Flow Responsibility"), or (b) to schedule ]
l 4 additional power and energy over EPE's PST (once it becomes ' l l
5 operational), including mitigation'of impacts thereon pursuant to Section l
t- 6. 7.3, which schedule EPE shall accept and at no additional charge from- l 7 EPE to Plains, to offset Plains' pro rata share of EPE's- Actual Excess i i
I 8 Flow Responsibility to TEP. j 9 8.2.1 EPE shall provide notification to Plains of the potential for' charges 10 for Excess Flow Responsibility under this Section 8.2 in accordance . i
_l, 11 with operating procedures approved by the Authorized. l l
,. 12 Representatives. .
j l
13 8.2.2 Plains' percentage share of EPE's Actual Excess' Flow jl i
14 Responsibility to TEP shall be based on the following' formula:
l 15 16 [ Plains' West Mesa-Dona Ana jl 17 115 KV flow '+ Elephant Butte . i 18 scheduled generation' + Plains - !
i 19 Plains' southern New Mexico - wheeling scheduled through . l l 20 load EPE's PST + additional i 21 wheeling to southrn New {
22 Mexico purchased by Plains + l 23 additional Plains resources in i 24 southern New Mexico) l 25 Plains' % l
-26 share of EPE : i 27 100 x = payrnent to - l l 28 TEP for !
29 excess flow l 30 31 iTotal MW amount scheduled 32 ' Actual Southern New Mexico -
through EPE's PST + actual flow
- 23. Imports on Plains' West Mesa-Dona Ana 34- 115kV line)
- 12 !
t l
, i L _. _ _, .._.,...n._
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1 'In the event that Plains obtains, through ownership or contractual arrangement j i
2, acceptable to EPE, which acceptance shall not be unreasonably withheld, l t
i 3 -transmission or generation capacity which alleviates the excess flow on TEP's l
+
j 4- facilities, the Parties agree to modify this' formula.
.5- 8.2.3 The Panies agree that Plains' 115 kV West Mesa to Dona Ana (
6 transmission line has a present rating of 60 MW of transmission j i l 7 capacity, and that any future upgrades of that line that result in an !
j 8 incremental merease m SNMTS. capability, according to path rating ,
j 9 methodologies developed by the Western Systems Coordinating 10 Council, and acceptable to the New Mexico Power Pool, shall result I
11 in a mutually agreed upon increase of its transmission capacity j e
! 12 rating. Plains will provide reasonable maintenance on this line to . :
13 retain this 60 MW capachv :ating.
14 SECTION 9: RATES . !
15 9.1 Notwithstanding such costs, if any, as may be incurred by Plains by i
16 operation of Sections 7.2,7.3 or 8.2 of this' Agreement and the pass 17 through of certain taxes described in Section 9.3 which are not otherwise 4
18 incorporated in the rate for Firm Transmission Service hereunder, Plain., .!
l 19 shall pay a single rate per kilowatt month ("kW-mo.") for Firm i
- I Transmission Service, regardless of the Point of Receipt or Point of 20 l 21 Delivery involved.
22 9.2 From the Effective Date of this Agreement through the expiration of the
- 23 tenth Contract Year of this Agreement, the rate per kW-mo, shall be EPE's 13 L
i
L l
1 current FERC-filed' wheeling rate, up to a maximum rate of $2.54/Kw-mo.
2 For each Contract Year following the expiration of the tenth Contract' Year .
3- of this Agreement, EPE shall be entitled to increase the rate per kW-mo.: 1 4 . for Firm Transmission Service under this Agreement by unilateral filings 'l 5 . under Section 205 of the Federal Power Act in an amount equal to the'-
i 6 lesser of the actual annual increase of EPE's FERC-filed wheeling rate as .lo
'j
- 7. finally effective, or an effective two percent per year increase prorated j i
8 monthly from the date of implementation of the rate then in effect to 'he- t ,l i
9 date the new rate is to become effective.'
l q
'10 9.3 Billings under this Agreement may be increased by EPE by an amount
'11 equal to the sum of the taxes payable under the New Mexico Gross-- l 12 Receipts and Compensating Tax Act and of all other taxes, fees or charges l 13 (exclusive of ad valorem, state and federal income taxes) payable by.EPE l l
- l j 14 as a result of transmission service provided under this Agreement by EPE l 15 and levied or assessed by any governmental or tribal authority on the . j i
16 service rendered, or on the right or privilege of rendering the service, or L
L 17 on any object or event incidental to the rendition of service. Such amount -
i L 18 shall be shown as a separate line item on EPE's bills to Plains.
19 9.4 It is the intent of this~ Agreement to eliminate, except as and only to the l
l 20 extent specifically provided in Section 9.2, EPE's right to make changes in l'
! 21 rates, terms and conditions of service or other provisions of this Agreement l l.
! .22 by making unilateral filings with the FERC pursuant to Section 205 of the 23 Federal Power Act and the rules and regulations promulgated the cunder.
l L 14
, ...- . , . . ~ . _ _ _ - _ -
i
'l j
1
. 1 As to any rates, terms and conditions of service or other provisions of this - !
F .l 5
2 - Agreement which are subject to EPE's right of unilateral filing under 'l 1
-3 Section 205, Plains shall have the right to request modifications under ;
-1 4 Section 206 of the Federal Power Act on the basis that they are unjust, j 5 ,
. unreasonable, unduly discriminatory or preferential under the Federal . .l 6' Power Act or otherwise unlawful. As to any rates, terms and conditions of '
,i
.7 service or other provisions of this Agreement that are not subject to FPE's l 1
~
8 right of unilateral filing under Section 205, neither Party shall initiate, l 9 support or request a modification in the rates, terms and conditions of.
i 10 - service or other provisions of this Agreement under Section 206 of the' -l' 11 - Federal Power Act and the rules and regulations promulgated thereunder i 12 on the ground that they are unjust, unreasonable, unduly discriminatory or 4 l
13 preferential under the Federal Power Act. Accordingly, it is the Parties'.. l i
14 intent that such rates, terms and conditions 'of service or other provisions l l
15 of this Agreement be subject to modification only pursuant to FERC's -
16 indefeasible authority to order changes in rates, terms and conditions of.
-17 service and other provisions that are fixed by contract if they are contrary.
18 to the public interest.
- 19. 9.5 Plains shall (a) support and concur with the initial filing of this Agreement 20 by EPE with FERC and (b) not oppose the filing by EPE with FERC of 21 future revisions of the rate for transmission service which conform with the 22 provisions of this Agreement.
15
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1 SECTION 10: BILLING AND PAYMENT
~
2- 10.1. A bill containing itemized charges for EPE's transmission services under
< 3 .this Agreement, and for Plains' share (if any) of excess flow responsibility f 4- - to TEP, (unless such responsibility is otherwise met pursuant to Section 5 8.2(b) hereof), and taxes pursuant to Section 9.3, shall be submitted i
-6 monthly by EPE to Plains pursuant to the rates and conditions specified in.
7 Sections 8 and 9, in substantially the form of the sample bill attached -
8- hereto as Exhibit 2, as_such form may be modified in writing by the 9 Authorized Representatives. EPE shall' submit such bill to Plains via' l
-10 facsimile.by the tenth day of each month, including backup calculations-l L -11 substantiating all charges billed.
l '
l 12 10.2 All transactions and billing shall be' accounted for on the basis of' amounts 13 scheduled by the Panies' respective system controllers or schedulers.
14 10.3 Bills shall be due and payable when rendered and shall become delinquent 15 sixteen (16) days from the date of receipt. Bills which are not paid in full 1
16 within 16 days from date of receipt shall thereafter ' accrue an interest 17 charge equal to the lesser of:
18 10.3.1 The floating prime rate for corporate loans at large U.S.' money 19 center banks, as reported from time to time in the Wall Street
'20' Journal or successor publication, prorated daily from the 21 delinquent date to the date of payment.
22 10.3.2 The maximum rate permitted by New Mexico law, prorated daily
.23- from the delinquent date to the date of payment.
16 l
i
k i
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-I ' 10.4 ' -In case any portion of any bill is in dispute, both the disputed and .
L2. undisputed amount shall be paid when due. Any amounts which, through q
errors or as' a result of k dispute may have been overpaid, shall be returned.- 1
-3 i
L 4 .upon determination ~ of the correct amount, with interest accrued at the-l 5 appropriate rate specified in Section 10.3, prorated daily. from the date of, '!
L 6~ the receipt of the overpayment by EPE until the date payment is received )
l 7 by Plains. 1 l
8 10.5 For a fractional part of a calendar month at the beginning or end of service : !
l a 9 under this Agreement, the bill shall be proponionately. adjusted by 'the ratio . j J l
. 10 of days that service under this' Agreement is made available to Plains _i j; ,
L 11- during that month to the total number of days in'such month. l
)
- 12 10.6- Bills hereunder shall be considered tme. and correct thirty-six (36) months-u
-13' after issuance. Both Parties waive the right to adjustments f'or billing
]
14 ' errors identified after such thiny-six month ' period. Should Plains desire' 15 for any reason, or be required by its lender or an agency having regulatory j 16 authority over it, to perform, or have performed, an audit of any bills i
17 hereunder, it shall have the right, at its sole expense, to perform or have 18 performed such audit during normal working hours at the offices of EPE.
L i
19 10.7 Monthly billing by EPE shall be sent to:
20 Manager of Accounting 21 Plains Electric Generation and Transmission Cooperative, Inc.
' 22 Post Office Box 6551 23 Albuquerque,' New Mexico 87197 24 Fax: (505) 889-7636 1
I i- 17 i
L. . >
l 1 10.8 Monthly paytnent by Plains shall be made to:
,i 2 Revenue Processing j 3 El Paso Electric Company l 4 Post Office Box 20982 5 El Paso, Texas 79998-0982 6 10.9 Plains and EPE may at any time, by written notice to the other Party, 7 change their respective designated address or the person so specified as the l 8' one to receive bills or payments under Sections 10.7 and 10.8.
]
9 SECTION 11: LIABILITY j s
10 11.1 Each Party shall indemnify, hold harmless and defend the other Pany, its ;
)
11 directors, officers, agents and employees from and against any claim or j r
12 action brought by an agent or employee of the indemnifying Pany for -
I 13 death, injury, loss or damage, whether direct, indirect or consequential, j 14 related to activities undertaken by the indemnified Party within the scope of 15 this Agreement. I 16 11.2 Plains shall indemnify, hold harmless and defend EPE, its directors, I
17 officers, agents and employees from and against any claim or action for 1 18 death, injury, loss or damage, whether direct, indirect or consequential, 19 suffered by a customer of Plains as a result of interruptions or curtailment 20 of electric service, whether negligent or non-negligent, under this 21 Agreement.
22 11.3 Neither Party to this Agreement shall be liable to the other Party for any l 23 death or injury of the other Party's agents or employees or for any physical l
i 18 1
- - ~. . . . . - . .. . . . , - - . - - . .- -
l l
'l damage to the propeny of the other Pany arising from activities undertaken.
)
-2 within the scope of this Agreement. 'i 3- 11.4 The provisions of this Section 11 shall not be constmed so as to relieve ,
i 4 any' insurer of its obligation to pay any insurance proceeds in accordance L ] :
5 with the terms and conditions of any valid insurance policy of anylPany.
l
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6' 11.5 In the event of breach of this Agreement by either' EPE or Plains, damages - .
7 shall be determined pursuant to the governing law of this Agreement . j 8 established in Section'17. l 6
9 SECTION 12:' AUTHORIZED REPRESENTATIVES I t
10- Each Party shall designate, by written notice to the other Party, a representative- , l l .
. .. l l 11 who is authorized to act on its behalf in the implementation of this Agreement and - l l . .
. 'l*
l- 12 with respect to those matters contained herein which are the functions and 1 ;
! 13 responsibilities of the Authorized Representatives, provided that the Authorized -
l 14' Representatives shall have no authority to modify any of the provisions of this i 15 Agreement. Either Party may at any time change the designation of its l 16 Authorized Representative by written notice to the other Pany.
l 17 SECTION 13: NO DEDICATION OF FACILI'IIES 18 No undertaking by one Party to the other Party under any provision of this 19 Agreement shall constitute the dedication of the system or any porLa thereof of R
l 20 the Pany to the public or to the other Pany, and it is understood and agreed, .
- l. 21 subject to the provisions of Section 5.4 of this Agreement, that any such 22 undenaking under any provision of this Agreement by a Pany shall cease upon the 23 termination of its obligations hereunder. )
1 l-19
l l ;
1
.1 SECTION 14: NO THIRD PARTY RIGHTS 2 Unless otherwise specifically provided in this Agreement, the Panies do not intend t 3 to create any rights in or grant any remedies to any third pany as a beneficiary of 4 this Agreement or of any duty, covenant, obligation or undenaking hereunder.
l 5 SECTION 15: UNCONTROLLABLE FORCES ,
l l i
6 Neither Pany shall be considered to be in default in the performance of any of its
! - i 7 obligations hereunder (other than the obligation of Plains to pay bills submitted by 1 J
8 EPE pursuant to Section 10 for services rendered under this Agreement) when a l I
9 failure of performance shall be due to Uncontrollable Forces; provided that the 10 Pany claiming to be disabled from performance by Uncontrollable Forces shall I
11 give reasonable written notice to the other Pany informing such Party of the ;
i
! 12 circumstances of the Uncontrollable Force and the nature and extent of the l
13 resulting disability from performance, 14 SECTION 16: ASSIGNMENTS 15 This Agreement shall inure to the benefit of, and shall bind, each Pany's i
16 successors. Neither Pany shall assign this Agreement or any pan hereof except
, 17 Plains may grant a security interest with respect to its interest under, in and to this -
l 18 Agreement in favor of the United States of America, et. al., without the prior 19 written consent of the other Pany, Such written consent shall not be unreasonably 20 withheld.
I 20
I
)
1 SECTION 17: GOVERNING LAW 2 This Agreement shall be interpreted,' governed by and construed under the laws of l 3 the State of New Mexico or the laws of the United States, as applicable, as if 4 executed and 'to be performed wholly within'the State of New Mexico. l 5 SECTION 18: NON-WAIVER :
6' The waiver by either Party of any breach of any term, covenant or condition ;
i 7 contained herein shall not be deemed a waiver of any other term, covenant or 8 condition or any subsequent breach of the same or any other term, covenant or ;
l t j 9 condition contained herein. l i
l 10 SECTION 19: REGULATORY AND GOVERNMENTAL APPROVAL !
11 EPE shall file this Agreement and any amendments hereto with the FERC and pay !
12 all associated filing fees. All obligations of EPE and Plains under this Agreement ;
13 and any amendments hereto are subject to action of such Federal and state ;
14 regulatory agency or other governmental authority as may have jurisdiction. This 15 Agreement shall not be binding until approved by the Administrator of the Rural I
i 16 Electrification Administration. This Agreement is not in any respect contingent on j 17 any regulatory approval required for, or any condition imposed on any regulatory 18 approval of, the proposed merger of EPE into Central and South West 19 Corporation.
20 SECTION 20: INFORMATION EXCHANGE 21 The Parties shall cooperate in the exchange of information between themselves in 22 order to further the purposes of this Agreement and to verify compliance with the 1
23 terms of this Agreement.
i 21 l
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-1 SECTION 21: ENTIRE AGREEMENT l
2 The complete agreement of the Parties is set forth in this Agreement, and all prior.
l i
'3 communications, understandings or proposals for agreement,' whether written or i
t 4 oral, are hereby abrogated and withdrawn. l i'
5 SECTION 22: AMENDMENTS - ,
i
-6 This Agreement may be amended in writing at any time upon mutual agreement of !
4 7 the Parties.- .!
8 SECTION 23: NOTICES i
9 Any notice, demand or request provided for in this Agreement, or served, given j i
j 10- or made in connection with'it, shall be in writirig and shall be deemed properly
~
1 11 served, given or made if delivered in person, sent by United States mail, postage
]
12 prepaid, or any other qualified or recognized delivery service, or by means of 13 electronic facsimile, to the person specified below unless otherwise provided for in d
- 14. this Agreement: .j l
15 Plains Electric Generation and Transmission Cooperative, Inc. I 16 Post Office Box 6551 17 Albuquerque, New Mexico 87197 18- Attention: Executive Vice President / General Manager 19 ~ (for hand delivery: 2401 Aztec Rd. NE, 87107) 20 Fax: (505) 889-7636 21 El Paso Electric Company 22 Post Office Box 982 23 El Paso, Texas 79960 24 Attention: Secretary 25 (for hand delivery: 303 N. Oregon, 79901) 26 Fax: (915) 542-3905 22
l- 1 '
1 f
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1 1
1 Either Party may at any time, by written notice to the other Party, change the
-i 2 designation or address of the person so specified as the one to receive notices i J
3 pursuant to this Agreement. j
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4 SECTION 24: SECTION HEADINGS 5 Section headings appearing in this Agreement are inserted for convenience only l 6 and shall not be construed as interpretations of text. I
.)
7 SECTION 25: CONTRACT CONSTRUCTION
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8 This Agreement shall be deemed to have been jointly prepared by both EPE and - ,
l i
9 Plains, and no ambiguity in this Agreement shall be~ construed against either. EPE -l I
, 10 or Plains based upon the identity of the author of this Agreement or any portion
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l 11 thereof.
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i 1 SECTION 26: SIGNATURE CLAUSE i
2 The signatories hereto represent that they have been appropriately authorized to 3 enter into this Agreement on behalf of the Party for whom they sign. This j 4 Agreement is hereby executed as of the Z/ of ,1994.
I i
PLAINS ELECTRIC GENERATION AND j TRANSMI SION COOPERATIVE, INC. .
e, s ,} l By./ /e Executive Vice PTesiderftTGeneral Manager _j ATTEST: 1 l
sau l$ ' ' klAm
'~
Assistant Secretir/ / !
EL PASO ELECTRIC COMPANY By ,o -
ATTEST: Vice Prepent, Power Supply
- A E 4.//
Secretary 1
l 24
i l
EXHIBIT 1 l TO l LONG TERM FIRM TRANSMISSION SERVICE AGREEMENT j BETWEEN EL PASO ELECTRIC COMPANY j AND l PLAINS ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. l ANTICIPATED ANNUAL SCHEDULES BY CONTRACT YEAR (MW)
(1) (2) (3) (4) (5)' :
CONTRACT -15 % ANNUAL + 15 % MAXIMUM ;
YEAR MINIMUM SCHEDUL.E MAXIMUM RATE i 1 30 30 35 2.54 l 2 30 32 37 2.54 !
l 3 30 34 40 2.54 !
4 30 36 42 2.54 ;
S 32 -
38 44 2.54
! 6 34 40 '46 2.54 l l
7 35 42 49, 2.54 i 44 2.54 8 37 50 i 9 39 46 50 2.54 l 10 40 48 50 2.54 !
11 42 50- '50 2.59 12 42 50 50 2.64 13 42 50 50 2.70 l 14 42 50 50 2.75 y 15 42 50 50 2.80 !
L 16 42 50 50 ' 2.86 -
i 17 42 50 50 2.92 l 18 42 50 50 2.98- l l 19 42 50 50 3.04 20 42 50 50 3.10 3 l 21 42 50 50 3.16 !
- 22 42 50 50 3.22 l 23 42 50 50 3.29 24 42 50 50 3.35 25 42 50 50 3.42 26 42 50 50 3.49 27 42 50 50 3.56 l 28 42 50 50 3.63 29 42 50 50 3.70 30 42 .50 50 3.77 Notes
- See next page. i 25 1.
I o
l EXHIBIT 1 (Continued) .]
Ll Notes:
(a) ~ Minimum Annual Schedule is 30 MW. . .
1 (b) Annual schedules must. fall between minimum and maximum.
- (c) . All figures rounded up to the nearest whole megawatt.
(d) , Election by Plains of its next years'. revised Annual Schedule takes place no less than 90 days before that Contract Year.
(e)- Regardless of a given year's Annual Schedule, as it may have besn revised from,what appears in Column (3) on this Exhibit 1, the Annual Schedule for:
the succeeding Contract Year must fall between the minimum and maximum ~. j amounts as shown in Columns (2) and (4); above,- for the applicable Contract Year shown in Column (1) of this Exhibit 1.
(f) - If no notice is provided by Plains pursuant to Section 6.3 of this Agreement, the next Contract Year's Annual Schedule will be that shown in Column (3) of j this Exhibit 1. I i
i i
o l
26 j
i EXHIBIT 2 :
L TO l LONG TERM FIRM TRANSMISSION SERVICE AGREEMENT I
BETWEEN ,
EL PASO ELECTRIC COMPANY l .
AND ,
! PLAINS ELECTRIC GENERATION AND TRANSMISSION COOPERATIVE, INC. i
! I EXAMPLE STATEMENT OF ACCOUNT Plains Electric Generation & Transmission Cooperative - Date ,
P.O. Box 6551 Albuquerque, New Mexico 87197-6551 [
Attention: Manager of Accounting Invoice for Firm Transmission Service for the month of l pursuant to the Long Term Firm Transmission Service Agreement between EPE and Plains j l Account No. ;
l
! Demand Charge: 30,000 KW @ $2.54/KW-Month $76,200.00 i l
NM Gross Receipts Tax @ 6.3125% 4,810.13 Excess Flow Responsibility (also see attached):
l 1,000 MWH @ $2.00/MWH 2,000.00 ;
. Total Amount Due: $83,010.13 ;
i l Prepared By: j l Bulk Power Specialist l l
l Due and payable sixteen (16) days from the above date. Amounts not paid on or before i the due date shall be payable with interest accrued at the prime interest rate according to l the Wall Street Journal, prorated by days from the due date to the date of payment. I Please Remit to:
Revenue Processing El Paso Electric Company Post Office Box 20982 El Paso, Texas 79998-0982 27 l
i DOCKETED i USHRC l UNITED STATES OF AMERICA' .!
BEFORE THE NUCLEAR REGULATORY COMMISSION: *95 - tiAR -9 P2 39 .,
)
'In the Matter of ) 0FFICE OF SECRETARY
) . .DOCKEliNG : S 8 vlCE ARIZONA PUBLIC SERVICE CO., et al. ) Docket'No. STNISF4528
) Docket.No. STN,50-529 (Palo Verde Nuclear Generating ') Docket No. STN 50-530 Station, Unit 1 !
)
Facility Operating License ) (Indirect Transfer of- i No. NPF-41) ) Control;; Antitrust- I
). Issues). -l (Palo Verde Nuclear Generating ) !
Station, Unit.2 .) !
Facility Operating License )
No. NPF-51) )
)
(Palo Verde Nuclear Generating ) 'j Station, Unit 3 , ) l Facility Operating License )
No. NPF-74) ) j
) .
CERTIFICATE OF-SERVICE l The undersigned hereby certifies that one copy of the foregoing Motion of Plains Electric Generation and l I
Transmission Cooperative, Inc. to Withdraw,-with-Prejudice,- j Petition for Leave to Intervene; Request for Finding of.
Significant Change and for Antitrust Hearing;'and Preliminaryf I Comments on Antitrust Issues has this day.been served upon the following persons by first class United States mail, postage prepaid, except as otherwise noted, in accordance with the requirements of Section 2.712 of the Commission's Rules of Practice (10 CFR S 2.712) and the Commission's Notice with respect to the Applicant for Consent to Transfer of Indirect Control, dated March 2, 1994 (59 Fed. Reg. 9999, 10001):-
- l. I l l 1s a
-l Samuel J. Chilk Regional A'dministrator, Secretary of Commerce Region V j U.S.N.R.C. U.S.N.R.C. . j 1 White Flint North 1450 Maria Lane i 16 G15 Suite 210 . l 11555 Rockville Pike Walnut Creek, CA 94596 Rockville, MD 20852 U.S.N.R.C. I Public Documents Room j Gelman Building i 2120 L Street, N.W. Charles B. Brinkman, Manager Washington, D.C. 20555 Washington Nuclear Operations ,
Office of the General ABB Combustion Engineering i Counsel Nuclear Power i U.S.N.R.C. 12300 Twinbrook Parkway l Washington, D.C. 20555 Suite 330 l l Rockville, Maryland 20852 l Rules Review and Directives l Office of Administration Aubrey V. Godwin, Director i
! U.S.N.R.C. Arizona' Radiation-Regulatory l
Room P233 Agency Philips Building 4814 South 40 Street 7920 Norfolk Avenue Phoenix, Arizona 85040 Bethesda, MD 20555 (By Hand) Chairman l
Maricopa County Board of l Supervisors Mr. Steve Olea 111 South Third Avenue
! Arizona Corporation Phoenix, Arizona 85003 Commission 1200 W. Washington Street Jack R. Newman, Esq.
l Phoenix, Arizona 85007 Newman & Holtzinger, P.C.
l 1615 L Street, N.W.
l James A. Beoletto, Esq. Washington, D.C. 20036 l Southern California Edison
! Company l
P. O. Box 800 Rosemead, California 91770 Mr. Curtis Hoskins Executive Vice President and Chief Operating Officer ,
El Paso Electric Co. i Senior Resident Inspector 303 North Oregon Street l Palo Verde Nuclear El Paso, Texas 79901 Generating Station 5951 S. Wintersburg Road i Tonopah, Arizona 85354-7537 t
(
Roy P. Lessey, Jr., Esq. Ronald J. Stevens, Director
.Bradley W. Jones, Esq. Nuclear Regulatory and Akin, Gump, Strauss, Hauer Industrial Affairs !
and Feld Arizona Public Service Co.
El Paso Electric Company P. .O.. Box 52034 1333 New Hampshire Avenue Phoenix, Arizona '85072 Suite 400 Washington, D.C. 20036 Mr. William F. Conway Executive Vice President l Arizona Public Service Co.
P. O. Box 53999 Phoenix, Arizona 85072 Clark Evans Downs, Esq.
Jones, Day, Reavis & Pogue 1450 G Street, N.W.
Washington, D.C. 20005 Alan J. Statman, Esq. l Michael E. Small, Esq. ,
Wright & Talisman, P.C.
1200 G Street, N.W. ,
Suite 600 -
Washington, D.C. 20005 i J. Cathy Fogel, Esq. !
Verner, Liipfert, Bernhard, !
et. al. ,
Suite 700 l 901 15th Street, N.W. ;
Washington, D.C. 20005 j Mark C. Schechter, Chief Transportation, Energy-and Agriculture Branch Antitrust Division Department of Justice 555 Fourth Street, N.W. 4 Washington, D.C. 20001 l l Mark D. Roberson l Federal Case Director l Central and South West l Corporation l 1616 Woodall Roger Freeway l
P.O. Box 660164 <
Dallas, Texas 75266-0164 L
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LO( 4 q l J n' P. Coyl'e' /\ 2!
Dated at' Washington, D.C.
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this 8th day of March, 1995.-
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