POWER SALES AGREEMENT
BETWEEN
VIRGINIA ELECTRIC AND POWER COMPANY
AND
CNG RETAIL SERVICES CORPORATION
Dated June 11, 1999
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS *
ARTICLE 2 TERM AND TERMINATION *
2.1 Term. *
2.2 Termination. *
2.3 Effect of Termination by Virginia Power. *
2.4 Amounts Outstanding. *
ARTICLE 3 SUPPLY AND PURCHASE OF REQUIREMENTS SUPPLY *
ARTICLE 4 GENERAL RESPONSIBILITIES OF VIRGINIA POWER *
4.1 Delivery and Title. *
4.2 Capacity, Reserves. *
4.3 Transmission Services to the Point of Delivery *
4.4 Losses *
4.5 Network Integration Service. *
4.6 Scheduling. *
4.7 Load Imbalances. *
ARTICLE 5 OBLIGATIONS OF PURCHASER *
5.1 Transmission and Distribution From the Delivery Point. *
5.2 Appointment of Virginia Power as Agent. *
5.3 Supply Contracts. *
5.4 Notification of Termination of Qualified Customers *
5.5 Metering Information. *
5.6 Load Imbalance Charges. *
ARTICLE 6 PRICING *
6.1 Pricing Formula *
6.2 Energy Factor and Unit Charge *
6.3 Determination of Base Rate *
ARTICLE 7 QUALIFICATION OF CUSTOMERS/CONFIRMATION SHEETS *
7.1 Request for Customer Enrollment. *
7.2 Confirmation Sheet. *
ARTICLE 8 BILLING AND PAYMENT *
8.1 Invoicing. *
8.2 Liquidation of Pre-Purchase Offer *
8.3 Terminated Customers *
ARTICLE 9 FINANCIAL ASSURANCES *
ARTICLE 10 NOTICE *
ARTICLE 11 MISCELLANEOUS *
11.1 Assignment. *
11.2 Dispute Resolution. *
11.3 Amendments. *
11.4 Proprietary Rights. *
11.5 Customer Information. *
11.6 Records. *
11.7 Governing Law. *
11.8 Entire Agreement. *
11.9 Section Headings. *
11.10 Waivers. *
11.11 Counterparts. *
11.12 Severability. *
11.13 Successors and Assigns. *
11.14 Consequential Damages. *
11.15 Authority. *
11.16 Governmental Approvals. *
11.17 Resale. *
POWER SALES AGREEMENT
This Power Sales Agreement (this "Agreement") for the sale and purchase of firm wholesale power is entered into as of June 11, 1999 ("Effective Date") between Virginia Electric and Power Company ("Virginia Power") and CNG Retail Services Corporation ("Purchaser").
WHEREAS, Purchaser is a licensed competitive electric supplier engaged in the retail sale of electricity in the Commonwealth of Pennsylvania and desires to purchase electricity at wholesale from Virginia Power to supply its retail customers; and
Virginia Power desires to sell electricity to Purchaser pursuant to the terms and conditions of this Agreement
NOW THEREFORE for and in consideration of the exchange of mutual promises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
For purposes of this Agreement, the following terms shall have the meanings set forth in this Article 1.
"Base Rate" has the meaning set forth in Section 6.3.
"Business Day" means a day on which the Federal Reserve Member Banks in New York are open for business; and a Business Day shall open at 8:00 a.m. and close at 5:00 p.m. Eastern Prevailing Time.
"Confirmation Sheet" has the meaning set forth in Section 7.2.
"Customer" shall mean a retail buyer of electricity that i) is taking electric distribution service from an EDC, ii) is eligible under the laws of the Commonwealth of Pennsylvania to choose its retail electric supplier, and iii) that has contracted to obtain its electric supply from Purchaser.
"Customer List" shall mean the list of Purchaser’s Customers maintained and published by each EDC.
"Customer Price Sheet" or "Price Sheet" means the price sheet posted on Virginia Power’s Electronic Bulletin Board, updated monthly, that sets out the Customer classifications and their associated Product name, and the Energy Factor and Unit Charges for each Product.
"Delivery Point", unless otherwise agreed to by the Parties in writing, means the point on the bulk power transmission grid established by each EDC for the receipt of service to retail customers provided by third party suppliers at which point Virginia Power will deliver Requirements Supply to the Purchaser.
"EDC" means the electric utility providing electricity distribution services to Qualified Customers.
"EDI" means Electronic Data Interchange and the standards for electronic commerce adopted by the EDCs.
"Effective Date" means June 11, 1999.
"Electronic Bulletin Board" means the Virginia Power website maintained at http://www.dom.com/about/clearinghouse/ebbindex.jsp and any replacement thereto.
"End Date" with respect to a Qualified Customer means the date on which service for a Qualified Customer ends as specified the Confirmation Sheet for that customer.
"Energy Factor" means the ratio applicable to a Product set forth in the Customer Pricing Sheet in accordance with Section 6.2.
"Forward Market Price" means the offer side for "PJM Western Hub" or "Cinergy" futures contracts for On-Peak electric power, as reported by the New York Mercantile Exchange (NYMEX) during its trading hours. In the event that no contracts are offered for a particular month on the NYMEX trading floor, the Forward Market Price for those months shall be as quoted by Virginia Power in its Daily Indicative Prices posted on the Electronic Bulletin Board.
"ISO" means an independent system operator approved by the Federal Energy Regulatory Commission located in and around the Commonwealth of Pennsylvania for the operation of transmission systems.
"Load Imbalance Charge" shall mean any charge, rate, fee or in-kind transfer required to be delivered to an EDC or ISO for: (1) deviation between the amount of electricity scheduled by Virginia Power for delivery to meet its obligation to provide Requirements Supply to Purchaser and the amount received by the EDC or ISO at the Delivery Point; and/or (2) deviation between the amount of electricity and other components of Requirements Supply delivered by Virginia Power at the Delivery Point and Requirements Supply obligation.
"Off Peak Hours" means all hours other than On Peak Hours.
"On Peak Hours" means hours ending 0800 through 2300 Eastern Prevailing Time, Monday through Friday (excluding the six annual North American Electric Reliability Counsel (NERC) holidays).
"Party" means either Purchaser or Virginia Power, and "Parties" means both Purchaser and Virginia Power.
"Product" means the standard name for a Customer classification set forth in the Customer Pricing Sheet.
"Requirements Supply" means an amount of electrical energy and related necessary components equal to the sum of the actual hourly consumption of the Qualified Customers as measured at the Delivery Point(s). Requirements Supply includes (1) any distribution losses required by an EDC or ISO beyond the Delivery Point; and (2) the amount of installed generating capacity required by the EDC or ISO or other responsible body.
"Qualified Customer" shall mean a Customer who has been qualified through the steps described in Article 7.
"Service Period" shall mean with respect to each Qualified Customer, that period of no more than one year commencing with the "Start Date" and continuing through the "End Date" for deliveries of Requirements Supply to such Qualified Customer as specified on the applicable Confirmation Sheet.
"Start Date" means the date on which service for a Qualified Customer commences as specified in the Confirmation Sheet for that customer.
"Term" has the meaning set forth in Section 2.1.
"Transmission Provider" means the entity providing transmission service from the Delivery Point to the location of a Qualified Customer.
"Unit Charge" means with respect to any Customer, the charge applicable to a Product, including transmission charges, that is set forth in the Customer Price Sheet in accordance with Section 6.2.
The Term of this Agreement shall commence on the Effective Date, and shall continue in full force and effect for an initial term of one (1) year and shall automatically renew for additional one year periods thereafter unless either Party provides written notice to the other Party that it desires to terminate this Agreement at least ninety (90) days prior to the expiration of the then current Term in which case this Agreement shall terminate upon the expiration of the final Service Period, under a Confirmation Sheet entered into prior to the receipt of such ninety (90) day notice.
This Agreement may be terminated early as follows:
Either Party shall have the right, upon delivery of written notice to the other, to terminate this Agreement or a Confirmation Sheet if the other Party fails to make payment of any amounts due under any provision of this Agreement, which failure continues for a period of fifteen (15) days after receipt of written notice of such nonpayment.
Either Party shall have the right, upon delivery of written notice to the other, to terminate this Agreement if the other Party fails to comply with any material provision of this Agreement, which failure continues for a period of fifteen (15) days after
written notice of such noncompliance, unless, in the case of a failure which cannot be cured within fifteen (15) days, the non-complying Party has commenced to cure such noncompliance within the fifteen (15) day notice period, is thereafter diligently pursuing such efforts, and the noncompliance is cured within sixty (60) days following the date that written notice of noncompliance is given.
Either Party shall have the right, upon delivery of written notice to the other, to terminate this Agreement if the other Party: (a) makes an assignment or any general arrangement for the benefit of creditors; (b) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause under any bankruptcy or similar law for the protection of creditors, or has such petition filed against it; (c) otherwise becomes bankrupt or insolvent (however evidenced); or (d) is unable to pay its debts as they fall due.
If there is any change in the laws or regulations relating to either Parties’ performance under this Agreement, which would or is reasonably expected to have a material adverse impact on the terms hereof (including without limitation, the financial return expected by the Parties hereunder), then upon one Party’s written notice to the other, the Parties shall promptly enter into good faith negotiations in order to address such change in circumstances. If, notwithstanding the Parties’ good faith efforts, they are unable to reach a mutually satisfactory resolution with respect to such change in circumstances within fifteen (15) days of such notice, then either Party shall have the right, upon written notice to the other, to terminate this Agreement, provided that such termination shall not excuse the Parties for any obligation or liabilities incurred by them before the effective date of termination or as a result of the termination.
2.3 Effect of Termination by Virginia Power.
In the event that Virginia Power terminates this Agreement pursuant to Section 2.2, as of the effective date of such termination (the "Termination Date"), Virginia Power’s obligation to provide Requirements Supply (whether under a transaction entered into before or after the Termination Date) shall also cease and terminate except as provided in Section 2.2(d).
Notwithstanding the provisions of this Article 2, in no event shall the termination of this Agreement relieve either Party from its obligation to pay any amount due and owing to the other Party under this Agreement or any Confirmation Sheet as of the date of termination.
3. SUPPLY AND PURCHASE OF REQUIREMENTS SUPPLY
Virginia Power will sell to Purchaser the Requirements Supply for Qualified Customers when Virginia Power and Purchaser have reached agreement on the rates, terms and conditions for a specific transaction in a Confirmation Sheet. Such rates, terms and conditions shall be in conformance with any requirements of this Agreement and shall not be unduly preferential as compared with other sales of Requirements Supply or similar products to unaffiliated wholesale customers by Virginia Power. Virginia Power will sell the Requirements Supply to Purchaser at rates that are no lower than the rates charged non-affiliate customers of Virginia Power.
Virginia Power will post this Agreement on its Electronic Bulletin Board simultaneously with the filing of this Agreement with the Federal Energy Regulatory Commission. By such posting Virginia Power offers to enter into power supply agreements with any non-affiliated entities that are licensed competitive electric suppliers participating in a Pennsylvania retail access pilot on terms and conditions that are identical to those contained in this Agreement.
At the time that Virginia Power and Purchaser enter into a Confirmation Sheet, Virginia Power will post the following information on its Electronic Bulletin Board:
1. The date that Virginia Power and Purchaser entered into the Confirmation Sheet
2. The expected length of the sale under the Confirmation Sheet
3. The price or price range for sales under the Confirmation Sheet
Virginia Power will maintain such information on its electronic bulletin board for thirty (30) days from the date of posting.
4. GENERAL RESPONSIBILITIES OF VIRGINIA POWER
During the Term of this Agreement Virginia Power shall perform the obligations set forth in this Article 4.
Virginia Power shall deliver to Purchaser the Requirements Supply at one or more Delivery Point(s) as set forth in the applicable Confirmation Sheet. The selection of electricity supply (including capacity) and transmission resources to provide the Requirements Supply to the Delivery Point(s) shall be in Virginia Power’s sole discretion. Title to Requirements Supply delivered to Purchaser pursuant to this Agreement shall pass from Virginia Power to Purchaser at the Delivery Point(s)
Virginia Power shall provide generating capacity, including reserve capacity, sufficient for Requirements Supply.
4.3 Transmission Services to the Point of Delivery
Virginia Power shall provide or arrange for transmission and transmission ancillary services necessary to deliver the Requirements Supply to the Delivery Point(s).
Virginia Power shall provide and bear the cost of any transmission losses, distribution losses and transmission congestion charges beyond the Delivery Point(s).
4.5 Network Integration Service.
Virginia Power shall bear the cost of Network Integration transmission service and transmission ancillary services required by Customer’s jurisdictional Transmission Provider.
Virginia Power shall schedule and coordinate the delivery of the Requirements Supply to the Delivery Point(s) with all applicable EDCs and ISOs.
Virginia Power will pay all Load Imbalance Charges except as provided in Section 5.6.
As long as Virginia Power is serving any of Purchaser’s Qualified Customers, Purchaser shall perform the obligations set forth in this Article 5.
5.1 Transmission and Distribution From the Delivery Point.
Purchaser shall make and maintain all arrangements, including necessary contractual arrangements with the relevant EDCs and ISOs, for all transmission, distribution and related services needed for receipt of the Requirements Supply at the Delivery Point(s) and for transmission and distribution of the Requirements Supply beyond the Delivery Point(s).
5.2 Appointment of Virginia Power as Agent.
Purchaser shall notify and direct the relevant EDCs and ISO’s to allow Virginia Power to act as Purchaser’s scheduling agent for services provided pursuant to this Agreement.
Purchaser shall use commercially reasonable efforts to ensure that it has supply contracts with Qualified Customers in place during the Term of this Agreement and that such supply contracts are enforced.
5.4 Notification of Termination of Qualified Customers
Purchaser shall notify Virginia Power at least three (3) Business Days before the relevant EDCs’ next billing cycle of any Qualified Customer which for any reason is no longer a Qualified Customer; provided, however, that notwithstanding the foregoing, Purchaser agrees and acknowledges that the expiration or termination by a Qualified Customer of such Customer’s supply contract or other agreement with Purchaser prior to the End Date specified on the Confirmation Sheet delivered by Purchaser to Virginia Power, shall not relieve Purchaser from its obligation to pay Virginia Power for that portion of the Requirements Supply attributable to the estimated demand of such Qualified Customer, in the manner set forth in Section 8.3.
Purchaser shall provide to Virginia Power access to all relevant communications with the EDC regarding Qualified Customers’ metered usage, within three (3) Business Days of their receipt from the relevant EDC. This includes all EDI transactions pertaining to customer enrollment confirmation (EDI 814 Enrollment) as well as all EDI transactions pertaining to metered usage information (EDI 810 or EDI 867). Transaction Sets may be e-mailed to "retailsupply@vapower.com" or they may be sent to Virginia Power’s FTP site ("www.vapower.com/Incoming/RetailSupply"). If Virginia Power serves fewer than one hundred fifty (150) of Purchaser’s Customers, Purchaser may elect to send Customer usage information through an alternate delivery mechanism mutually acceptable to Virginia Power and Purchaser.
Purchaser shall pay for any Load Imbalance Charges or any other charges incurred by Virginia Power that are directly attributable to Purchaser’s failure to fulfill its obligations under this Agreement, as set forth below:
- Failure to provide the notice as required by Section 5.4;
- Failure to fully and accurately provide the information described in Section 5.4 and 5.5;
- Failure to maintain and enforce supply contracts with Qualified Customers; or
- Failure to maintain and enforce necessary contractual arrangements with EDCs and ISOs as required by Section 5.1.
The price for Requirements Supply of a Customer shall be determined by the formula Energy Factor ´ Base Rate + Unit Charge. The Energy Factor and the Unit Charge are determined as set forth in Section 6.2. The Base Rate is determined as set forth in Section 6.3.
Virginia Power will publish its Customer Price Sheet on the Virginia Power Electronic Bulleting Board. The Price Sheet will indicate the applicable trading hub for each Product for each month. Valid trading hubs under this Agreement are "Cinergy" and "PJM Western Hub." The Price Sheet shall also set out the Energy Factors and Unit Charges for each classification of Customer for each of the next twelve to eighteen months from the date of the Price Sheet. The Energy Factors and Unit Charges applicable to a particular Customer may be determined by selecting from the Price Sheet the name of the Product applicable to that Customer and the first and last months of the Service Period. For the purpose of making such a determination, if a Customer’s Start Date is on or before the 15th day of a month, the first month of service is that calendar month. If the Start Date is after the 15th day of a month, then the first month of service is the following calendar month. If the End Date is on before the 15th day of month, the last month of service is the previous month. If the End Date is after the 15th day of a month, the last month of service is that calendar month.
Virginia Power will publish a new Price Sheet effective at the beginning of each calendar month. Virginia Power may, at its discretion, introduce additional Products or may cease to offer to serve certain Products in any month or it may modify the terms of service of any of the Products, provided, however, that the discontinuation or modification of a Product shall not apply to the remaining Service Period of any Qualified Customer under a Confirmation Sheet entered into prior to such discontinuation or modification.
For each Qualified Customer, during the applicable Service Period, the Base Rate applicable to that Qualified Customer shall be determined, at Purchaser’s option by one of the following:
Fixed Price Offer. Upon request of the Purchaser, Virginia Power will offer Purchaser a fixed price for the Base Rate (the "Fixed Price Offer") which shall include both the term for which such Fixed Price Offer will remain in effect (the "Fixed Price Offer Term"), and the maximum non-coincident aggregate summer peak kWs for all Qualified Customers to which the Fixed Price Offer will apply (the "kW Cap") and the Products to which the Fixed Price Offer will apply. Virginia Power will develop the Fixed Price Offer using the current Forward Market Price, plus a risk premium set by Virginia Power depending on the Fixed Price Offer Term. The risk premium shall in no event be lower than the risk premium Virginia Power charges non-affiliated customers. For so long as any Fixed Price Offer is in effect, the Base Rate for all Customers that become Qualified Customers during such period shall be the Fixed Price Offer
Pre-Purchase Offer Upon request of the Purchaser, Virginia Power will offer Purchaser a fixed volume of Requirements Supply expressed in total kW (the "Pre-Purchase Offer") at the then current Forward Market Price delivered over a fixed Service Period. The terms of the Pre-Purchase Offer shall be in the form set forth in Schedule A to this Agreement and shall include: 1) the total kWs available to Purchaser pursuant to the Pre-Purchase Offer ("Maximum kWs"), 2) the Delivery Start and End Months; 3) the then current Forward Market Price that will apply to all Qualified Customers identified by Purchaser under the Pre-Purchase Offer; and 4) the Energy Factors, Unit Charges and the Component kW(as "defined below") that will apply to each Product class of Qualified Customers identified by Purchaser under the Pre-Purchase Offer. The Forward Market Price set by a Pre-Purchase offer shall only apply to Products specifically listed on the Pre-Purchase Offer. The "Component kW" is a figure calculated by Virginia Power that reflects the expected demand of each Product during the Service Term. The Component kW is provided to allow Purchaser to determine how much of the Maximum kWs would be attributed to a specific Qualified Customer pursuant to a Pre-Purchaser Offer. The sum of all Component kW’s of Qualified Customers must be less than or equal to the Maximum kWs of the Pre-Purchase Offer.
On-Demand Pricing. If at any time there is not a Fixed Price Offer nor a Pre-Purchase Offer in effect (whether caused by expiration of a Fixed Price Offer Term, Requirements Supply exceeding the Maximum kW cap under a Pre-Purchase Offer, Qualified Customers who were not identified as Customers in the Fixed Price Offer, or for any other reason) then the Base Rate for all new Qualified Customers shall be equal to the then current Forward Market Price.
7.0 QUALIFICATION OF CUSTOMERS/CONFIRMATION SHEETS
7.1 Request for Customer Enrollment.
From time-to-time, during the Term of this Agreement, Purchaser may contact Virginia Power and identify one or more Customers that Purchaser desires to add to its Requirements Supply. Purchaser will identify such Customers by providing to Virginia Power enrollment information on a Confirmation Sheet by EDI or electronic mail.
(a) Purchaser shall provide the following Customer enrollment information: 1) EDC account number; 2) the EDC serving the Customer; 3) Product ("Load Profile"); 4) the Customer’s annual historical energy usage in kWh; and 5) the Service Period. The format for the information submitted for Customer enrollment shall be either the EDI 814 Customer Enrollment Transaction Set, or a spreadsheet in the format described in Schedule B. Purchaser may use the format of Schedule B only if the number of Customers identified at any single occasion is less than seventy-five. EDI 814 Customer Enrollment Transaction Sets must also include a data item specifying the End Date or Purchaser may provide an EDI 814 Drop transaction set to specify the End Date.
(b) If upon receiving Purchaser’s enrollment information, Virginia Power concludes that the information is not complete, Virginia Power shall notify Purchaser of the deficiency no later than the close of the Business Day following the receipt of the information in question and Purchaser shall send corrected information in the manner set forth in Section 7.1(a).
Upon the receipt of complete and accurate Customer information as described in Section 7.1(a), Virginia Power shall, before the close of the next Business Day, send to Purchaser by e-mail or fax a completed Confirmation Sheet in the format of Schedule C setting forth the offered Base Rate, Energy Factor and Unit Charge for such Customers. The Base Rate, Energy Factor and Unit Charge that appear on an accepted Confirmation Sheet shall be the ones used for billing and payment as described in Article 8. Once Virginia Power sends to Purchaser an executed Confirmation Sheet in the format of Schedule C, Purchaser shall return to Virginia Power within three (3) Business Days of its receipt of the Confirmation Sheet a counter-signed copy of the Confirmation Sheet signifying its acceptance of all the terms shown in the Confirmation Sheet. The Customer or Customers identified in the Confirmation Sheet shall become Qualified Customers and the Confirmation Sheet shall be the binding contract between Virginia Power and Purchaser.
Virginia Power will submit to the Purchaser, as promptly as practicable after the end of each calendar month (as described in Section 8.1(c)), an invoice for amounts due for services rendered under the terms of this Agreement and Confirmation Sheets for the preceding calendar month ("Scheduled Energy Invoice"). The amounts specified in an Scheduled Energy Invoice shall be due and payable within seven (7) days of receipt by Purchaser. Invoices not paid when due shall accrue interest at the rate specified in 18 C.F.R. § 35.19a, as it may be amended from time to time, and as computed from the date payment was due to the payment date. Payments shall be made to the address provided in Article 10 or such other address as Virginia Power may specify by written notice to Purchaser.
No later than three calendar months after the date of the Scheduled Energy Invoice, Virginia Power will render a subsequent bill, or will pay a credit ("True-Up"), for any differences between the amounts billed in the Scheduled Energy Invoice and the Qualified Customers’ actual consumption. If the Parties are unable to determine a Qualified Customer’s actual consumption before Virginia Power issues its True-Up, Virginia Power shall, at its sole discretion, estimate the Qualified Customer’s consumption for purposes of the True-Up.
A billing month is the period of approximately 30 days between the scheduled times when the EDC reads Customers’ meters. Virginia Power will use billing month kWh reported by the EDC or metering services supplier to derive calendar month kWh consumption by allocating the billing month kWh uniformly to the days in the billing month and then summing over the days in the calendar month.
Simultaneous with the submission of the Scheduled Energy Invoice or the True Up Virginia Power will electronically submit to Purchaser a report containing, for each Qualified Customer, the following information:
A Qualified Customer will appear in the report more than once when that Qualified Customer’s Price changed during the month, or for the True Up, when that Qualified Customer had its meter read during the month.
Should Virginia Power deem the creditworthiness of Purchaser or Purchaser’s ability to fulfill its obligation under this Agreement or any Confirmation Letters to be unsatisfactory at any time during the Term of this Agreement, Virginia Power may request commercially reasonable actions by the Purchaser to assure Purchaser’s performance. Without limiting the generality of the foregoing, Virginia Power may demand financial assurances, including, but not limited to requiring Purchaser’s obligation to perform to be secured by collateral in which Virginia Power is granted a first priority continuing security interest in, lien on, and right of set-off against, certain collateral, and the proceeds therefrom, (the "Collateral") of Purchaser in an amount and form satisfactory to Virginia Power; requiring Purchaser to procure from a third party a guaranty of the Purchaser’s performance of its obligations under this Agreement and any Confirmation Letter; or requiring Purchaser to post a letter of credit or surety bond. Such guaranty, letter of credit or surety bond shall be in such commercially reasonable amount and forms as Virginia Power may designate.
Upon taking the actions requested by Virginia Power pursuant to this Article 9, Purchaser shall warrant to Virginia Power that Purchaser has the capacity and authority to take such action. The failure of Virginia Power to demand assurances from Purchaser pursuant to this Article 9 shall not operate as a waiver of Virginia Power’s right to demand such assurances.
Unless otherwise specified in this Agreement or a Confirmation Sheet, all information required to be sent to a Party pursuant to this Agreement shall be sent to the following addresses:
Notice to Virginia Power:
Ms. Kay Williams
Project Manager
5000 Dominion Blvd.
Glen Allen, VA 23060
Tel. (804) 273-4464
Fax (804) 273-4501
e-mail: Kay.Williams@dom.comNotice to Purchaser:
Robert Reeping
Supply Manager
One Chatham Center
Suite 700
Pittsburgh, PA 15219
Tel. (412) 316 7210
Fax (412) 316 7230
e-mail: rreeping@cng.com
Except as provided below, neither Party may assign this Agreement or its rights hereunder without the prior written consent of the other Party, which such consent shall not be unreasonably withheld or delayed. Either Party may, without consent of the other Party, assign this Agreement to a wholly-owned subsidiary of such Party or to an affiliate under common ownership with such Party, provided that such person assumes all obligations of the assignor under this Agreement and further provided that no such arrangement shall relieve the assigning Party from liability under this Agreement.
In the event of a dispute between the Parties arising out of this Agreement, the Parties shall negotiate in good faith to resolve the dispute amicably and promptly. If after such good faith negotiations the Parties are unable to resolve the dispute, the Parties may: (1) by mutual agreement, submit the dispute to binding arbitration under rules and procedures to which both parties agree; or (2) pursue any legal or equitable remedies that may be available.
Any amendment of this Agreement shall be in writing and agreed to by both Parties.
Purchaser shall acquire no interest under this Agreement in any software, formulas, patterns, devices, secret inventions or processes, copyrights, patents, or other intellectual and proprietary rights, or similar items of property which are or may be used or developed by Virginia Power in connection with this Agreement or otherwise.
Virginia Power and Purchaser acknowledge that the identity of Qualified Customers is sensitive commercial information. Virginia Power agrees to not provide to its retail marketing personnel, or any other third party, any individual customer meter information, with the exception that Virginia Power will use actual metered usage information to improve its energy schedules to EDCs.
For at least two years after the applicable transactions, the Parties shall keep such records as may be needed to substantiate or dispute the accuracy of any invoices delivered hereunder. A Party's records shall be available at all reasonable times for inspections by the other Party's authorized representative and may be copied at such other Party's expense.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, exclusive of its choice of law provisions.
This Agreement, together with the Schedules attached hereto and made part hereof, constitutes the entire agreement between the Parties regarding the subject matter hereof, and supercedes any and all previous or contemporaneous understandings between the parties, whether written or oral.
The section headings and subheadings and other titles contained herein are for convenience only and shall not be used in construing this Agreement.
No waiver of any default or right under this Agreement shall be effective unless in writing and signed by the waiving Party, and such waiver shall not operate as a waiver of any other default or right or of the same default or right on a future occasion.
This Agreement may be executed in several counterparts, each and every one of which shall be deemed an original, enforceable in accordance with the terms hereof.
To the extent any provision of this Agreement is held unenforceable or invalid under applicable law, such invalidity shall not affect any other provisions of this Agreement which can be given effect without the invalid provisions and, to this end, the provisions hereof are severable.
The terms and provisions of this Agreement and the respective rights and obligations hereunder of each Party shall be binding upon and inure to the benefit of its successors and assigns.
Except as otherwise expressly provided for in this Agreement, in no event shall either Party hereto (including its officers, directors, employees and agents) be liable to the other for indirect, incidental or consequential loss or damage resulting from, arising out of, due to or in connection with the performance, non-performance or delay in performance of their obligations hereunder, whether based in contract, tort, strict liability, warranty or otherwise.
Each Party represents and warrants that it has the necessary corporate and/or legal authority to enter into this Agreement and to perform all of its duties and obligations imposed by this Agreement. Each Party further represents that the individuals executing this Agreement on their respective behalf have been duly authorized to do so and that such execution creates a valid, binding and legally enforceable obligation of each Party.
The Parties acknowledge that the effectiveness of this Agreement in contingent on its acceptance for filing by the Federal Energy Regulatory Commission pursuant to Section 205 of the Federal Power Act.
Notwithstanding any provision contained herein to the contrary, Purchaser shall not arrange for any sale or transfer of electricity supplied by Virginia Power hereunder to wholesale customers or any other electricity reseller.
IN WITNESS WHEREOF, the Parties hereto have caused this Service Agreement to be signed by their respective duly authorized representatives as of the date first written above.
CNG RETAIL SERVICES CORPORATION
By:
Name:
Title:
VIRGINIA ELECTRIC AND POWER COMPANY
By: _________________________
Name: R. T. Thatcher
Title: Vice-President, The Wholesale Power Group
SCHEDULE A
Confirmation Sheet - Retail Supply Pre-Purchase
Peak Demand (kW)
Delivery Start Month
Delivery End Month
Base Rate ($/MWh)
Energy Factors, Unit Charges and Component kW
APS Schedule 101 No Heat, No Water
APS Schedule 105 No Heat, Water
APS Schedule 108 All Electric
APS Schedule 20
APS Schedule 30
APS Schedule 40
Central Coop Commercial
Central Coop Residential-ECAR
Central Coop Residential-PJM
DLC Rate GL - General Service Large
DLC Rate GLH - General Service Large Electric Heat
DLC Rate GMH - General Service Electric Heat
DLC Rate GS/GM - General Service Small/Medium
DLC Rate L - Large Power Service
DLC Rate RA - Add-on Heat Pump
DLC Rate RH - Residential Heating
DLC Rate RS – Residential
DLCO All-Hours
Met-Ed GP Commercial
Met-Ed GP Industrial
Met-Ed GS Commercial (SS/SL)
Met-Ed GS Industrial (SS/SL)
Met-Ed GST Commercial (ST)
Met-Ed GST Industrial (ST)
Met-Ed RS no Heat (SW)
Met-Ed RS no Heat or Water (SN)
Met-Ed RS with Heat (SH)
Met-Ed RT no Heat (TW)
Met-Ed RT with Heat (TH)
Met-Ed TP Industrial (TP/LP)
PECO-E-01 Rate GS - Below 7 kW-Philadelphia&Suburbs
PECO-E-02 Rate GS - Between 7 and 10 kW-Philadelphia&Suburbs
PECO-E-03 Rate GS - Between 10 and 15 kW-Philadelphia&Suburbs
PECO-E-04 Rate GS - Between 15 and 25 kW-Philadelphia&Suburbs
PECO-E-05 Rate GS - Between 25 and 40 kW-Philadelphia&Suburbs
PECO-E-06 Rate GS - Above 40 kW-Philadelphia&Suburbs
PECO-E-07 Rate GS - Below 300 kWh-Philadelphia&Suburbs
PECO-E-08 Rate GS - Between 300 and 600 kWh-Philadelphia&Subrubs
PECO-E-09 Rate GS - Above 600 kWh-Philadelphia&Suburbs
PECO-E-10 Rate OP - Cycle 1-Philadelphia&Suburbs
PECO-E-11 Rate R - Below 300 kWh/mo.-Philadelphia&Suburbs
_________________
Name
Date
SCHEDULE B
Customer List-Spreadsheet Format
|
EDC Name |
One of the following: APS, DLC, PECO, PPL, GPU |
|
Account Number |
EDC-assigned account number—PECO account numbers are 12 digits (or digits 2-13 of the 15-digit account number), PP&L account numbers are 10 digits, GPU account numbers are 14 digits and the first 2 digits are ‘41’ or ‘51’, DLC account numbers are 13 digits, APS account numbers are 14 digits. |
|
Start Date |
Meter Read Date on which service will start |
|
End Date |
Meter Read Date on which service will end |
|
Peak kW |
Expected summer peak demand in kW (Optional) |
|
Annual kWh |
Annual kWh consumption (Optional) |
|
Energy Factor |
Energy Factor. Price in ¢/kWh = Energy Factor´ Base Rate/10 + Unit Charge |
|
Base Rate |
Base Rate in $/MWh. Offer side of 5x16 Forward Market |
|
Unit Charge |
Unit Charge in ¢/kWh |
|
Batch |
Transaction Set Identifier. |
SCHEDULE C
Confirmation Sheet - Retail Supply
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Account |
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Product |
Peak kW |
Annual |
Start Date |
End Date |
Energy |
Unit Charge |
Base Rate $/kWh |
Batch |
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_________________ _________________
Name Name
Date Date
AMENDMENT NO. 1
TO
POWER SALES AGREEMENT
BETWEEN
VIRGINIA ELECTRIC AND POWER COMPANY
AND
CNG RETAIL SERVICES CORPORATION
THIS AMENDMENT NO. 1 is made as of this 27th day of July, 1999, by and between Virginia Electric and Power Company ("Virginia Power") and CNG Retail Services Corporation ("Purchaser") (each individually a "Party," together the "Parties").
RECITALS
A. Virginia Power and Purchaser entered into the Power Sales Agreement, dated as of June 11, 1999 (the "Agreement"); and
B. The Parties now wish to amend the Agreement
NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE 3 SUPPLY AND PURCHASE OF REQUIREMENTS SUPPLY
(a) Virginia Power will sell to Purchaser the Requirements Supply for Qualified Customers when Virginia Power and Purchaser have reached agreement on the rates, terms and conditions for a specific transaction in a Confirmation Sheet. Such rates, terms and conditions shall be in conformance with any requirements of this Agreement and shall not be unduly preferential as compared with other sales of Requirements Supply or similar products to similarly situated unaffiliated wholesale customers by Virginia Power in the same time period. Virginia Power will sell the Requirements Supply to Purchaser at rates that are no lower than the rates charged similarly situated non-affiliate customers of Virginia Power.
(b) At the time that Virginia Power posts the price or price range for Requirements Supply offered to Purchaser, Virginia Power will offer to similarly situated unaffiliated customers via its Electronic Bulletin Board the same price or price range for Requirements Supply under the same terms and conditions offered to Purchaser.
(c) Virginia Power will make available to the public via posting on the Electronic Bulletin Board the actual price charged to Purchaser under all Confirmation Sheets executed pursuant to this Agreement. At the time that Virginia Power and Purchaser enter into a Confirmation Sheet, Virginia Power will post the following information on its Electronic Bulletin Board accessible to the public using commercially available equipment and software:
1. The date that Virginia Power and Purchaser entered into the Confirmation Sheet
2. The expected length of the sale under the Confirmation Sheet
3. The price or price range for sales under the Confirmation Sheet
Virginia Power will maintain such information on its electronic bulletin board for thirty (30) days from the date of posting.
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be executed by their authorized representatives, effective as of the date first written above.
VIRGINIA ELECTRIC AND POWER COMPANY
By: ____________________
Name: R.T. Thatcher
Title: V.P. -- The Wholesale Power Group
CNG RETAIL SERVICES CORPORATION
By: _____________________
Name: _____________________
Title: _____________________