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Resolution No. 79412 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 WE I0M 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7941 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A NATURAL GAS PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND BP ENERGY COMPANY WHEREAS, on October 3, 2001, the City Council of the City of Vernon approved Resolution No. 7845 ratifying the execution of a Transaction Confirmation to Gas Sales Agreement with BP Energy Company ("BP Energy"), which was to be subject to and supplement the terms and conditions of a Natural Gas Purchase and Sale Agreement that was in the process of being negotiated; and WHEREAS, the City of Vernon ("City") and BP Energy have completed their negotiations and wish to enter into a Natural Gas Purchase and Sale Agreement (No. 601207) and Transaction Confirmation for the purchase of certain quantities of natural gas for its existing combustion turbines and the new Malburg Generating Station scheduled to t be completed by September, 2003; and WHEREAS, pursuant to the Transaction Confirmation, BP Energy agrees to sell natural gas on favorable terms to the City of Vernon effective May 1, 2002; and WHEREAS, the term, price, quantity and point(s) of delivery are set forth in the Transaction Confirmation; and WHEREAS, by letter dated March 28, 2002, Bruce V. Malkenhorst, City Administrator/City Clerk, recommended that the Natural Gas Purchase and Sale Agreement be approved and executed; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of Subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 necessity to enter into an agreement with BP Energy. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Natural Gas Purchase and Sale Agreement and Exhibit "A" to the Natural Gas Purchase and Sales Agreement, Transaction Confirmation BP Agreement No. 601207, with BP Energy, a copy of which is attached hereto as Exhibit "A" and made a part hereof. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor and the City Clerk to execute said Agreement and Transaction Confirmation for, and on behalf of, the City of Vernon. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send one fully executed Agreement and Transaction Confirmation to: BP Energy Company Attn. Joe Alves 18101 Von Karman Avenue, Suite 1940 Irvine, CA 92612 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15' 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 3rd day of April, 2002. ATTEST: BRUCE V. MALKENHORST, City Clerk EONIS C. MALBU G, Mayo - 3 - 1 2 3 4 5 6 7 8, 91 10 11 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) )ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 7941, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, April 3, 2002, and thereafter was duly signed by the Mayor Pro Tem of the City of Vernon. (SEAL) IZ- BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT AV NATURAL GAS PURCHASE AND SALE AGREEMENT Date: May 1, 2002 Seller: Buyer: BP Energy Company City of Vernon 18101 Von Karman Ave, Suite 1940 4305 Santa Fe Ave. Irvine, CA 92612 Vernon, CA 90058 Notices & Correspondence: 18101 Von Karman Ave, Suite 1940 Irvine, CA 92612 Attn: Joe Alves Phone: (949) 251-8696 Fax: (949) 251-0230 Payments: Chase Manhattan Bank, NY, NY BP Energy Company Account No. 910-2-548097 ABA No. 021000021 Notices & Correspondence: 4305 Santa Fe Ave. Vernon, CA 90058 Attn: Jorge Somoano Phone: (323) 583-8811 Ext. 248 Fax: (323) 826-1425 Invoices & Payments: Jorge Somoano 4305 Santa Fe Ave. Vernon, CA 90058 Phone: (323) 583-8811 Ext. 248 Fax: (323) 826-1425 Federal Tax ID Number: 956000808 Seller and Buyer are individually referred to as a "Party" and collectively referred to as the "Parties". The Parties represent as follows: A. Seller owns or controls quantities of natural gas ("gas") it desires to sell; and B. Buyer desires to purchase certain quantities of gas Seller has available. The Parties have agreed to the following terms and conditions for the purchase and sale of gas: The primary term of this Natural Gas Purchase and Sale Agreement (this "Agreement") shall be from May 1, 2002 through September 30, 2002. This Agreement shall extend month -to -month thereafter until terminated by either Party by giving thirty (30) days prior written notice. Notwithstanding the termination of this Agreement, the terms and provisions of this Agreement shall continue to apply to any Transaction entered into prior to the termination of this Agreement until such Transaction is terminated according to its terms. 2. The term, price, quantity and point(s) of delivery of any particular purchase and sale of gas by the Parties (each a "Transaction" and collectively, "Transactions") and any special provisions as agreed to by the Parties from time to time shall be in substantially the same form as set forth in Exhibit A (the "Transaction Confirmation') attached hereto and incorporated into this Agreement. When signed by both parties or deemed accepted by both parties, each Transaction Confirmation shall be a part of and supplement the terms and provisions of this Agreement. Except as provided in Paragraph 25 of the attached "Conditions of Sale," in the event there is a conflict between the terms and provisions of this Agreement and the terms and provisions of a Transaction Confirmation, the terms and provisions of a Transaction Confirmation shall control to the extent of any conflict. 3. The attached "Conditions of Sale" dated May 1, 2002 are hereby incorporated into and made a part of this Agreement as essential terms and conditions. 4. The Credit Support Addendum attached hereto as Exhibit B is hereby incorporated into and made a part of this Agreement as essential terms and conditions. By their signatures as they appear below, Buyer and Seller hereby accept and agree to the terms and conditions of this Agreement and all Transaction Confirmations. Seller: BP Energy Company Name: 53 Zk A r l v iyy" c' i,�f Title:V_r-�' i�2\CvcN`�iON SOvvv+%S( ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: EDUARTO OLIVO. City Attorney Buyer: FW THE CITY OF VERNON LEONIS C. MALBURG, Mayor W NATURAL GAS PURCHASE AND SALES AGREEMENT Dated: May 1, 2002 BP Energy Company (Seller) and City of Vernon (Buyer) CONDITIONS OF SALE Firm Delivery: Seller shall sell and deliver and Buyer shall purchase and receive all gas subject to this Agreement on a "Firm" basis. "Firm" shall mean that Seller's obligation to sell and deliver and Buyer's obligation to purchase and receive gas shall only be excused by an event of "Force Majeure" as deemed herein. 2. Invoices and Payment: Seller shall invoice Buyer on or before the twentieth (20th) day of the month for deliveries of gas made in the prior month based on Buyer's actual usage. Buyer shall pay Seller not later than ten (10) days after Buyer's receipt, via facsimile, United States first class mail, or courier, of Seller's invoice. Seller, at its sole option and in its sole discretion, may suspend deliveries of gas, in whole or in part, pursuant to any or all Transactions whenever any invoice for any Transaction is five (5) days or more past due. Billing will be based on Buyer's actual usage as reflected by telemeter readings on Gas Select via SoCalGas. Should telemetry not be available, Buyer shall provide meter read statements to Seller as requested by Seller. Buyer, at its sole cost, shall be responsible for installing and maintaining telemetry at Buyer's facility. On any amounts not paid on or before the due date, Buyer shall be liable for and shall be charged interest on all past due amounts at the lesser of (i) the prime interest rate per annum on corporate loans at large U.S. money center commercial banks (as reported in the first edition of the Wall Street Journal "Money Rates" table for the calendar month in which payment is due) plus 2% per annum, compounded daily from the due date through but not including the date paid, or (ii) the maximum rate of interest permitted by applicable law compounded daily from the due date through but not including the date paid. Statements and invoices shall be delivered by facsimile, United States fast class mail (postage pre -paid), or overnight courier to the addressee set forth on page one (1) hereof. In addition, payments shall be made by wire transfer to the account set forth on page one (1) hereof or, if different, as set forth in any invoice delivered pursuant hereto. Pursuant to Exhibit "B" attached hereto and made a part hereof, Seller may demand assurance of Buyer's ability to pay and may from time to time demand different terms of payment whenever, in Seller's sole discretion, Buyer's financial condition requires such change. Seller, upon making such demand and until the assurance requested by Seller has been provided to Seller, may, in its sole discretion, suspend deliveries of gas pursuant to any or all Transactions, in whole or in part. If Buyer refuses or fails to give the assurance requested by Seller or to accept different terms of payment requested by Seller within ten (10) days after receipt of Seller's demand, Buyer shall be deemed to have anticipatorily repudiated this Agreement and all Transactions, and Seller may, in its sole discretion, immediately cancel this Agreement and any or all Transactions, in whole or in part. Title and Possession: Risk of loss and title shall transfer from Seller to Buyer at the Point of Delivery described in the Transaction Confirmation. Seller shall be solely liable and responsible for, and shall indemnify and hold harmless Buyer from and against, all claims, losses, liabilities, or damages (including attorneys' fees and other reasonable litigation costs) (collectively, "Claims") arising out of or related to, directly or indirectly, title to the gas, personal injury (including bodily injury or death) related to the gas, or property damage related to the gas prior to the Point of Delivery, and Buyer shall be solely liable and responsible for, and shall indemnify and hold harmless Seller from and against, Claims arising out of or related to, directly or indirectly, payment, personal injury (including bodily injury or death) related to the gas, or property damage related to the gas at and after the Point of Delivery. uali : All gas delivered shall be merchantable and shall conform to all of the specifications promulgated or otherwise required by the owner(s) of the facilities at the Point of Delivery. Buyer may refuse to accept such gas pending correction of quality deficiencies. 5. Entirety of Aement: This Agreement shall constitute the entire agreement between the parties and supersedes all previous agreements (whether written or oral), unless otherwise provided herein. No other promises, agreements or warranties additional to this Agreement shall be deemed a part hereof nor shall any alteration or amendment of this Agreement be effective without the written consent of each Party. 6. Pipeline Confirmations and Statements: Buyer shall provide Seller any statement or confirmation of volumes received from any transporting pipeline if requested by Seller. Transporting pipeline shall include any local distribution company, as applicable. Liquidated Damages: In addition to any liability for imbalance charges in Paragraph 17 below, which shall not be recovered twice by the following remedy, the exclusive and sole remedy of the parties in the event of a breach of a Firm obligation shall be recovery of the following: (i) in the event of a breach by Seller on any day(s), payment by Seller to Buyer in an amount equal to the positive difference, if any, between the purchase price paid by Buyer utilizing the Cover Standard for replacement Gas and the Contract Price (as set forth on any applicable Exhibit A hereto), adjusted for commercially reasonable differences in transportation costs to or from the Point(s) of Delivery, multiplied by the difference between the Contract Quantity (as set forth on any applicable Exhibit A hereto) and the quantity actually delivered by Seller for such day(s); or (ii) in the event of a breach by Buyer on any day(s), payment by Buyer to Seller in the amount equal to the positive difference, if any, between the Contract Price and the price received by Seller utilizing the Cover Standard for the resale of such Gas, adjusted for commercially reasonable differences in transportation costs to or from the Point(s) of Delivery, multiplied by the difference between the Contract Quantity and the quantity actually taken by Buyer for such day(s); or (iii) in the event that Buyer has used commercially reasonable efforts to replace the Gas or Seller has used commercially reasonable efforts to sell the Gas to a third party, and no such replacement or sale is available, then the exclusive and sole remedy of the non -breaching party shall be any unfavorable difference between the Contract Price and the Spot Price, adjusted for such transportation to the applicable Point(s) of Delivery, multiplied by the difference between the Contract Quantity and the quantity actually delivered by Seller and received by Buyer for such day(s). "Spot Price" means the price listed in the publication Gas Daily (published by Financial Tires Energy or any successor thereto) under the heading "Midpoint" in the table "Daily Price Survey" applicable to the geographic location closest in proximity to the Point(s) of Delivery for the relevant day. "Cover Standard" means that the non -defaulting party shall use commercially reasonable efforts to obtain Gas, or sell Gas, at a price reasonable for the delivery or production area, as applicable, consistent with: the amount of notice provided by the defaulting party; the immediacy of the Buyer's Gas consumption needs or Seller's Gas sales requirements, as applicable; the quantities involved; and the anticipated length of failure by the defaulting party. 8. Force Majeure: (a) "Force Majeure" as used in this Agreement means acts of God; landslides; lightning; earthquakes; storms or storm warnings, such as hurricanes, which result in evacuation of the affected area; floods; washouts; fires; explosions; interruption of firm transportation and/or storage; unplanned outages of, breakage of, or accidents related to equipment, machinery, or lines of pipe; weather (such as low temperatures which cause freezing or failure of wells, equipment, machinery or lines of pipe); strikes, lockouts or other industrial disturbances; riots; sabotage; insurrection; war; any governmental or court 4 0 action such as necessity for compliance with any court order, law, statute, ordinance, or regulation promulgated by a governmental authority having or alleging to have jurisdiction; exhaustion, reduction or unavailability of gas at the source of supply from which deliveries are normally made; or any other cause or causes (except financial) beyond such Party's reasonable control, whether similar or dissimilar to those stated above, and which cause or causes could not have been avoided or prevented by the exercise of due diligence. In the event either Party is rendered unable, wholly or in part, to perform its obligations under this Agreement (except for the obligation to make any payment) because of an event of Force Majeure, the obligations of each Party pursuant to this Agreement (other than the obligation to make any payment) shall be suspended for the continuance of any inability so caused but for no longer period. The Party claiming Force Majeure shall immediately notify the other Party in writing describing the nature and estimated duration of such inability to perform. The cause of such inability to perform shall, so far as possible, be remedied by the Party prevented from performance of this Agreement with all reasonable dispatch. (b) (i) Notwithstanding anything to the contrary in this Agreement (including, without limitation, anything in Paragraph 8(a)), in the event (a) Seller is unable to sell and deliver the Contract Quantity as a result of an event of Force Majeure, and (b) the Contract Price for such Contract Quantity is a fixed price, Seller shall pay Buyer for each MMBtu of Gas not delivered as provided in Paragraph 7 above. Notwithstanding anything to the contrary in this Agreement (including, without limitation, anything in Paragraph 8(a)), in the event (a) Buyer is unable to purchase and receive the Contract Quantity as a result of an event of Force Majeure, and (b) the Contract Price for such Contract Quantity is a fixed price, Buyer shall pay Seller for each MMBtu of Gas not purchased and received as provided in Paragraph 7 above. 9. Taxes and Fees: Seller shall pay and discharge all production, severance, or similar taxes levied on the gas delivered by Seller and hold Buyer harmless in connection therewith prior to the point of delivery. All taxes, fees, tariffs, and charges incurred at and after the Point of Delivery shall be borne and paid by Buyer and Buyer shall hold Seller harmless in connection therewith. 10. Notices: Any notice shall be in writing and shall be delivered by courier, by United States first- class mail (postage pre -paid), or by facsimile to the address or facsimile number, as applicable, first set forth herein, unless changed by written notice. Notices shall be deemed received when (i) for notices delivered by United States first-class mail (postage pre -paid), the day such notice is deposited in a United States Post Office with postage fully prepaid, (ii) for notices delivered by facsimile, if delivered before 5:00 p.m. Central Standard Time on any business day, the day such notice was transmitted by facsimile, otherwise the next business day, and (iii) for notices delivered by courier, the day received by the Party if received on a business day, otherwise, the next business day. The term "business day" as used in this Agreement means any day the receiving Party is regularly open for the purpose of conducting business and specifically excludes all Saturdays, Sundays, and holidays the receiving Party's office located at the address for notice purposes is closed for business. 11. Auditing: Each Party hereto shall have the right, at all reasonable times within two (2) years of the date of any invoice and at its sole expense, to audit the books and records of the other Party to the extent necessary to verify the accuracy of any invoice, charge, computation, or demand made under or pursuant to this Agreement. If a Party has not received written notice of a demand to audit its books and records from the other Party within two (2) years of the date of any invoice, such invoice shall be deemed correct for all purposes, and each Party waives any right to claim such invoice was incorrect or inaccurate. 12. Assigning : This Agreement shall not be assignable by either Party without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate, provided that any such assignment shall not release the assignor of any of the obligations hereunder unless consented to in writing by the non -assigning Party. Before any such assignment shall become effective, the assignee shall assume in writing all of the assignor's obligations under this Agreement. Any assignment in violation of this paragraph shall be null and void and of no force or effect. The term "affiliate" as used in this paragraph means, in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose, "control" of any entity or person means ownership of a majority of the voting power of the entity or person. 13. Waiver: The waiver by either Party of the breach of any provision hereof by the other Party shall not be deemed to be a waiver of the breach of any other provision or provisions hereof or of any subsequent or continuing breach of such provision or provisions. 14. Successors: This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 15. Disputes, Choice of Law and Venue: In any litigated dispute under this Agreement, the prevailing Party shall be entitled to recover from the other Party all reasonable legal costs and all direct out- of-pocket costs associated with the litigation incurred by the prevailing Party, including, without limitation, all reasonable attorneys' fees and costs of court. THIS AGREEMENT AND ANY DISPUTES ARISING PURSUANT TO OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, ENFORCED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA. 16. Confidentiality: This Agreement and all of its provisions are strictly confidential between the Parties and shall not be disclosed to the extent permitted by law, except to their respective attorneys and accountants who agree to keep the provisions of this Agreement strictly confidential , without the prior written consent of the other Party. Any Party that believes it is required by law to disclose the provisions of this Agreement shall, before disclosing same, immediately notify the other Party in writing and make all reasonable efforts to limit, restrict, or reduce the number of third parties provided access to this Agreement. 17. Imbalances: Buyer and Seller shall use all reasonable efforts to avoid the occurrence of any imbalances under this Agreement and shall immediately notify the other upon discovery of any imbalance. Both Parties agree to cooperate to prevent or remedy any imbalance that may occur on a daily basis, and the Party causing an imbalance shall be responsible for any imbalance penalties that may occur under this Agreement. Specifically, during any period when transporter has invoked balancing parameters for less than a full calendar month, including but not limited to OFO and EFO events as defined in the transporter's tariff, Buyer agrees to provide Seller twenty four (24) hours prior written notice of Buyer's estimated usage. Should Buyer's actual usage vary from Buyer's usage estimate and as a result an imbalance penalty is imposed by transporter, said imbalance shall accrue to Buyer. Any imbalance created prior to the effective date hereof shall be Buyer's responsibility. 18. Nominations: Procedures for Buyer's submission of nominations to Seller shall be stated in a Transaction Confirmation. Seller shall perform all nominations on Buyer's behalf with Buyer's cooperation and shall act as Buyer's Contracted Marketer or Authorized Agent as provided by transporter's current Contracted Marketer or Authorized Agency program or any successor program implemented by transporter. 19. Default and Breach: The Parties specifically agree that this Agreement and all Transactions are "forward contracts" as such term is defined in the United States Bankruptcy Code, 11 U.S.C. Section 101(25). The occurrence at any time with respect to a Party of any of the following Cl constitutes a material breach and/or event of default of this Agreement: (a) a Party makes a general assignment or arrangement for the benefit of creditors; (b) a Party becomes bankrupt, a debtor in a bankruptcy proceeding, insolvent or unable to pay its debts as they become due; (c) a Party files a petition or otherwise commences a proceeding under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it; (d) a Party has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or a substantial portion of its property or assets; (e) a "Credit Event" (as such term is defined in Exhibit B attached hereto) occurs with respect to Buyer or Buyer's "Credit Support Provider" (as such term is defined in Exhibit B attached hereto); (f) a Party fails to make any payment on or before the date due; or (g) any of the representations and warranties given herein by a Party is materially incorrect or inaccurate. In the event of a material breach of any terms of this Agreement or an event of default, the non -defaulting Party may elect to terminate this Agreement by providing the defaulting Party written notice stating the effective date of termination (the "Liquidation Date"), which Liquidation Date may be the date of written notice. In the event of the occurrence of (a), (b), (c), or (d) immediately preceding, this Agreement shall automatically terminate without notice effective upon the occurrence of such events. If the non -defaulting Party elects to terminate this Agreement or if this Agreement automatically terminates as provided above, the non -defaulting Party shall calculate and be entitled to the Settlement Amount. The "Settlement Amount" is the positive value, if any, of (a) minus (b) plus (c), where (a) is the sum of the products of the quantities of gas multiplied by the prices for such gas during the remaining term of a Transaction assuming it had not been terminated, (b) is the equivalent quantities and relevant market prices for the remaining term of a Transaction either quoted by a bona fide third party offer or which are reasonably expected to be available in the market under a replacement contract, and (c) is the non - defaulting Party's out-of-pocket damages and losses, including, without limitation, its associated costs and attorneys' fees, resulting from the default or material breach of the other Party. To ascertain the market prices of a replacement contract the non -defaulting Party may consider, among other valuations, the settlement prices of the New York Mercantile Exchange ("NYMEX") gas futures contracts, quotations from any leading dealer in gas sway contracts and other bona fide third party offers, all adjusted for the length of the remaining term and the basis differential, if any. If the calculation of the Settlement Amount results in a negative value, the Settlement Amount shall be deemed to be zero. The defaulting Party shall pay the non -defaulting Party the Settlement Amount, if any, within five (5) days of receipt of the non -defaulting Party's invoice of the Settlement Amount. The Parties agree that the Settlement Amount is not a penalty but is a reasonable approximation of the liquidated damages suffered by the non -defaulting Party because of the defaulting Party's material breach of this Agreement or because of an event of default. 20. Re ulatorv: Should the implementation of Capacity Brokering or Federal Energy Regulatory Commission ("FERC") Order 636, or any companion order thereto or any other order issued or tariff approved by a State or Federal regulatory body having jurisdiction over the gas covered by this Agreement cause this Agreement to have an adverse economic impact on either Party hereto or prevent either Party from performing under the terms of this Agreement, the Parties shall promptly and in good faith negotiate alternative arrangements satisfactory to each other that would allow deliveries of gas in conjunction with this Agreement to continue. If no alternative agreement can be reached within thirty (30) days, then the obligations of the Parties under this Agreement may be terminated (without liability to either Party) by the adversely affected Party by providing written notice to the other Party no later than thirty (30) days after negotiations cease. 21. Limitation of Damages: FOR BREACH OF ANY PROVISION OF THIS AGREEMENT, A PARTY'S LIABILITY SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES ONLY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ANY CLAIM FOR SUCH DAMAGES IS EXPRESSLY WAIVED. 7 22. Index and Methodology: For index priced gas volumes, should the index or methodology used to determine the cost of gas be materially changed or should the index cease to be published, Buyer and Seller shall in good faith attempt to choose an alternate index, an alternate publication, and/or revise the contract price methodology. If the Parties cannot agree to an alternate index, an alternate publication, and/or a revised pricing methodology within thirty (30) days of the start of negotiations, then either Party may terminate this Agreement (without liability to either Party) by providing written notice to the other Party no later than thirty (30) days after negotiations cease. 23. Contract Quantity: Buyer shall purchase, and Seller shall sell, one hundred percent (100%) of Buyer's share of natural -gas requirements from Seller for the facilities listed in a Transaction Confirmation. 24. Imbalance Trading: Buyer shall execute all documents required by transporter to allow Seller to have Buyer's imbalance account placed into Seller's Contracted Marketer or Authorized Agent account with transporter and Seller shall perform all imbalance trading on behalf of Buyer. 25. Electronic Recording and Si natures: The Parties hereby consent to the electronic recording of their oral agreements and related telephone conversations. Recorded telephone conversations shall be deemed to be a "writing" and may be used as evidence of the Transaction in the absence of a written Transaction Confirmation. Seller shall promptly confirm all oral agreements in writing by facsimile or otherwise using a form substantially similar to Exhibit A attached hereto. If Buyer fails to object to the terms of a written Transaction Confirmation within 3 business days of receipt of same, such Transaction Confirmation shall be deemed accepted by Buyer and correct in all respects. The letterhead of a Party shall be deemed to be such Party's signature, and facsimile handwritten signatures shall be deemed to be original handwritten signatures for all purposes. Electronic mail or email shall be deemed to be a "writing" and an email letterhead or typed or electronic signature in email shall be deemed to be signed by the Party sending same. In the event of a conflict between the various documentary or evidentiary forms of a Transaction, the following order of priority (1 being the highest priority and 4 the lowest) shall control to the extent of any conflict: (1) written Transaction Confirmation; (2) email confirmation of a Transaction; (3) recorded telephone conversation of a Transaction; and (4) this Agreement. 26. Counterparts: This Agreement and any Transaction Confirmation may be executed in multiple counterparts. Each counterpart shall be deemed an original, but when taken together, such counterparts shall be deemed to be one agreement. EXHIBIT "A" TO NATURAL GAS PURCHASE AND SALES AGREEMENT TRANSACTION CONFIRMATION BP Agreement No. 601207 DATED: May 1, 2002 Seller: Buyer: BP Energy Company City of Vernon 18101 Von Karman Ave., Suite 1940 4305 Santa Fe Ave. Irvine, CA 92612 Vernon, CA 90058 Representative: Joe Alves Representative: Jorge Somoano Exhibit Date: May 1, 2002. Term: May 1, 2002, through September 30, 2002. Seller has the option to extend the Term through December 31, 2003, by written notification to Buyer by August 1, 2002. Buyer's Facilities: Existing facilities (combustion turbines) including the new 134 MW power plant scheduled to be completed by September, 2003. Point(s) of Delivery: All Southern California border receipt points into SoCalGas system. Contract Quantity: Buyer shall purchase, and Seller shall sell, one hundred percent (100%) of Buyer's share of natural gas requirements from Seller for Buyer's Facilities. Third Party Volume: If Buyer sells a portion of the generation capacity of the new 134 MW power plant to a Third Party, that Third Party shall have the right to deliver volume for Third Party generation requirements. Buyer will notify Seller by 8 a.m. CPT no less than six business days written notice prior to the first day of the month that Buyer will deliver Third Party Volume into Seller's SoCalGas balancing pool. All Third Party Volume shall be subject to the terms and conditions of this Agreement, with the exception of the Contract Price section of this Exhibit "A". Nomination Procedure: Monthly Quantity - Five (5) business days prior to the upcoming month, Buyer will provide Seller a monthly nomination for any base load quantity. Daily Quantity - During the month, Buyer may need additional daily volume from Seller. Buyer will notify Seller no later than the day before effective flow date by 8:00 AM CST of its daily nomination. Nominations for Saturday through Monday are due by 8:00 AM CST on the Friday before effective flow days. Contract Price (per dry MMBtu): The Monthly Quantity contract price up to 100,000 MMBtu over the annual Term shall be equal to the applicable monthly index published in Natural Gas Intelligence (NGI), SoCal Border Avg., minus $0.03 per MMBtu. Additional quantities above 100,000 MMBtu will be mutually agreed between Buyer and Seller. The Daily Quantity contract price will be a mutually agreed upon fixed price or market price published in Gas Daily at the Point(s) of Delivery on the appropriate day of delivery. Buyer shall have the option to convert index quantities to fixed pricing. For purposes of identifying consumed volumes, they shall be, first, fixed price volumes, next, monthly index volumes, and last, daily priced volumes. This Transaction Confirmation is subject to, forms a part of and supplements the terms and conditions of that certain Natural Gas Purchase and Sale Agreement of the BP Contract number listed above (the "Agreement"). Defined terms and references used in this Transaction Confirmation but not defined herein shall have the meanings set forth in the Agreement. ACCEPTED and AGREED: Seller: BP Energy Company By� �. Name: �Q.1 ✓�r\1 w' , vY� � Cirt- Title:N,[. n aQ1 G�i tJ Ai 401�1 SG V-TV!-WV ATTEST: BRUCE V. MALKENHORST, City Clerk 2 Buyer: RW THE CITY OF VERNON LEONIS C. MALBURG, Mayor APPROVED AS TO FORM: QUARTO OLNO, Cily Attomey EXHIBIT B TO NATURAL GAS PURCHASE AND SALES AGREEMENT CREDIT SUPPORT ADDENDUM A. Credit Requirements. At any time, and from time to time during the term of this Agreement, if the Contract Exposure (as such term is defined below) should exceed $500,000 (the "Security Threshold"), Seller may require Buyer to provide Performance Assurance (as such term is defined below) in an amount equal to the amount by which the Contract Exposure exceeds the Security Threshold (rounding upwards for any fractional amount to the next $100,000). The Performance Assurance shall be delivered within two (2) business days of the date of Seller's request. On any business day (but no more frequently than weekly with respect to letters of credit and daily with respect to cash), Buyer, at its sole cost, may request Seller to reduce its Performance Assurance then in place if the Contract Exposure reverts back to an amount less than or equal to the sum of the Performance Assurance and.the Security Threshold then in place (rounding upwards for any fractional amount to the next $100,000). B. In Seller's sole discretion, if applicable, in order to support Buyer's Security Threshold and secure all payment obligations of Buyer hereunder, Buyer shall execute and deliver to Seller a term bank letter of credit agreement in the amount of U.S. $(not applicable) which term bank letter of credit agreement shall be in form and substance and from a commercial bank satisfactory to Seller in its sole discretion and shall be executed and delivered by Buyer before the delivery of any gas pursuant to this Agreement, or if gas is being delivered pursuant to this Agreement, Seller may, in its sole discretion, immediately suspend any or all deliveries of gas, in whole or in part, until Buyer delivers to Seller such guaranty agreement. C. Credit Events Of Default. The following events (each a "Credit Event") shall be events of default of the Agreement and Seller shall have the right to exercise any of the remedies available to Seller upon the occurrence of a Credit Event. (i) Buyer fails to establish, maintain, extend or increase Performance Assurance when required pursuant to this Credit Support Addendum; or (ii) In the reasonable opinion of Seller, (x) a material adverse change has occurred in the business, financial condition or operations of Buyer or its Credit Support Provider, and/or (y) Buyer's ability to meet its obligations under the Agreement has become materially impaired; or (iii) Buyer's Credit Support Provider fails to perform any covenant set forth in any guaranty agreement delivered in accordance with this Credit Support Addendum, or Buyer's Credit Support Provider shall take or suffer any actions set forth in Paragraph 19(a), (b), (c), or (d) of the Agreement as applied to it; or (iv) Buyer's Credit Support Provider's Credit Rating is downgraded by either Moody's or S&P from the Credit Rating in existence on the date of this Agreement or Buyer's Credit Support Provider ceases to be rated by S&P or Moody's subsequent to the date of this Agreement; or (v) Either Buyer or Buyer's Credit Support Provider fails to timely provide financial information as provided in Paragraph D below. D. Financial Information. Buyer shall deliver within 180 days following the end of each fiscal year, a copy of any audited or unaudited consolidated financial statements for such fiscal year. In all cases . . . the statements shall be the most recent accounting period and prepared in accordance with generally accepted accounting principles, consistently applied. E. Definitions. With respect to this Credit Support Addendum the following definitions shall apply. Defined terms and references used in this Credit Support Addendum but not defined herein shall have the meanings set forth in the Agreement. (i) "Performance Assurance" means collateral in the form of cash, Letters of Credit or other collateral deemed sufficient by Seller. "Letter of Credit" means one or more irrevocable, standby letters of credit from a major U.S. commercial bank or foreign bank with a U.S. office having (a) a Credit Rating of at least "AA" from S&P or "Aa" from Moody's and (b) capital and surplus of at least U.S. $10 billion. (iii) "Credit Support Provider" means an entity providing a guaranty for Buyer as provided hereunder. (iv) "Contract Exposure" means an amount equal to the Settlement Amount (as defined in Paragraph 19 of the Agreement) that would be payable from Buyer to Seller, as if a Liquidation Date had been declared effective as of the date of calculation pursuant to Paragraph 19 of the Agreement (without regard to whether a material breach or event of default of the Agreement has occurred), and all other amounts owed but not yet paid by Buyer to Seller, whether or not such amounts are then due, for performance already provided pursuant to all Transactions conducted under the Agreement. (v) "Credit Rating" means, on any date of determination, (x) with respect to a Buyer's Credit Support Provider, the lower of its long-term senior unsecured debt rating (not supported by third party credit enhancement) or its issuer credit rating by Moody's or S&P, and (y) with respect to a financial institution, its long-term senior unsecured debt rating or its deposit rating (not supported by third party credit enhancement) by Moody's or S&P. (vi) "Moody's" means Moody's Investors Service, Inc., or its successor. (vii) "S&P" means Standard & Poor's Ratings Services (a division of McGraw-Hill, Inc.) or its successor. F. Permitted Assignees of Buyer. In the event of an assignment of this Agreement by Buyer as provided herein, the provisions of this Credit Support Addendum shall not be applicable to any such assignee. In such event, all obligations of Seller to deliver gas under all Transactions shall be suspended until the assignee has met the credit requirements of Seller, in its sole discretion, for the extension of unsecured credit. SUPPORTING DOCUMENTS y' dTY COUNCIL 4 LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern WM. "BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX (323) 826-1438 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 April 15, 2002 BP Energy Company Attn: Joe Alves 18101 Von Karman Avenue, Suite 1940 Irvine, CA 92612 Re: Natural Gas Purchase and Sale Agreement Dear Mr. Alves: EDUARDO OLIVO City Attorney FAX: (562) 869-1883 KEVIN WILSON Director of Community Services & Water FAX: (323) 826-1435 KENNETH J. DeDARIO Director of Municipal Utilities FAX: (323) 826-1425 STEVEN E. PARKER Fire Chief FAX: (323) 826-1407 BRUCE W. OLSON Police Chief FAX: (323) 826-1481 Transmitted herewith is a duplicate original copy of the above referenced approved by the Vernon City Council on April 3, 2002. If you have any questions regarding this matter, please refer them to Kenneth DeDario at (323) 583-8811 ext. 211. Very truly yours, Ne y r/n' Assistant Chief Deputy City Clerk NG:mt CC: Kenneth DeDario Dolores Fonseca #02Agrement File-01 Resolution No . 7 941 NATURAL GAS PURCHASE AND SALE AGREEMENT Date: May 1, 2002 Seller: Buyer: BP Energy Company City of Vernon 18101 Von Karman Ave, Suite 1940 4305 Santa Fe Ave. Irvine, CA 92612 Vernon, CA 90058 Notices & Correspondence: 18101 Von Karman Ave, Suite 1940 Irvine, CA 92612 Attn: Joe Alves Phone: (949) 251-8696 Fax: (949) 251-0230 Payments: Chase Manhattan Bank, NY, NY BP Energy Company Account No. 910-2-548097 ABA No. 021000021 Notices & Correspondence: 4305 Santa Fe Ave. Vernon, CA 90058 Attn: Jorge Somoano Phone: (323) 583-8911 Ext. 248 Fax: (323) 826-1425 Invoices & Payments: Jorge Somoano 4305 Santa Fe Ave. Vernon, CA 90058 Phone: (323) 583-8811 Ext. 248 Fax: (323) 826-1425 Federal Tax ID Number: 956000808 Seller and Buyer are individually referred to as a "Party" and collectively referred to as the "Parties". The Parties represent as follows: A. Seller owns or controls quantities of natural gas ("gas") it desires to sell; and B. Buyer desires to purchase certain quantities of gas Seller has available. The Parties have agreed to the following terms and conditions for the purchase and sale of gas: 1. The primary term of this Natural Gas Purchase and Sale Agreement (this "Agreement") shall be from May 1, 2002 through September 30, 2002. This Agreement shall extend month -to -month thereafter until terminated by either Party by giving thirty (30) days prior written notice. Notwithstanding the termination of this Agreement, the terms and provisions of this Agreement shall continue to apply to any Transaction entered into prior to the termination of this Agreement until such Transaction is terminated according to its terms. 2. The term, price, quantity and point(s) of delivery of any particular purchase and sale of gas by the Parties (each a "Transaction" and collectively, "Transactions") and any special provisions as agreed to by the Parties from time to time shall be in substantially the same form as set forth in Exhibit A (the "Transaction Confirmation") attached hereto and incorporated into this Agreement. When signed by both parties or deemed accepted by both parties, each Transaction Confirmation shall be a part of and supplement the terms and provisions of this Agreement. Except as provided in Paragraph 25 of the attached "Conditions of Sale," in the event there is a conflict between the terms and provisions of this Agreement and the terms and provisions of a Transaction Confirmation, the terms and provisions of a Transaction Confirmation shall control to the extent of any conflict. M 3. The attached "Conditions of Sale" dated May 1, 2002 are hereby incorporated into and made a part of this Agreement as essential terms and conditions. 4. The Credit Support Addendum attached hereto as Exhibit B is hereby incorporated into and made a part of this Agreement as essential terms and conditions. By their signatures as they appear below, Buyer and Seller hereby accept and agree to the terms and conditions of this Agreement and all Transaction Confirmations. Seller: BP Ene/r Company YV Name: 121iQcht U Title: q, P, 09—t (pt 0,g7jar,4 SO0"VAI-JIzSIX ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: e. EDUARTO OLIVO, City Attorney 2 Buyer: THE CITY OF VERNON s BY: NIS C. MALBURG, Mayor NATURAL GAS PURCHASE AND SALES AGREEMENT Dated: May 1, 2002 BP Energy Company (Seller) and City of Vernon (Buyer) CONDITIONS OF SALE 1. Firm Delivery: Seller shall sell and deliver and Buyer shall purchase and receive all gas subject to this Agreement on a "Firm" basis. "Firm" shall mean that Seller's obligation to sell and deliver and Buyer's obligation to purchase and receive gas shall only be excused by an event of "Force Majeure" as defined herein. 2. Invoices and Payment: Seller shall invoice Buyer on or before the twentieth (20th) day of the month for deliveries of gas made in the prior month based on Buyer's actual usage. Buyer shall pay Seller not later than ten (10) days after Buyer's receipt, via facsimile, United States first class mail, or courier, of Seller's invoice. Seller, at its sole option and in its sole discretion, may suspend deliveries of gas, in whole or in part, pursuant to any or all Transactions whenever any invoice for any Transaction is five (5) days or more past due. Billing will be based on Buyer's actual usage as reflected by telemeter readings on Gas Select via SoCalGas. Should telemetry not be available, Buyer shall provide meter read statements to Seller as requested by Seller. Buyer, at its sole cost, shall be responsible for installing and maintaining telemetry at Buyer's facility. On any amounts not paid on or before the due date, Buyer shall be liable for and shall be charged interest on all past due amounts at the lesser of (i) the prime interest rate per annum on corporate loans at large U.S. money center commercial banks (as reported in the first edition of the Wall Street Journal "Money Rates" table for the calendar month in which payment is due) plus 2% per annum, compounded daily from the due date through but not including the date paid, or (ii) the maximum rate of interest permitted by applicable law compounded daily from the due date through but not including the date paid. Statements and invoices shall be delivered by facsimile, United States first class mail (postage pre -paid), or overnight courier to the addressee set forth on page one (1) hereof. In addition, payments shall be made by wire transfer to the account set forth on page one (1) hereof or, if different, as set forth in any invoice delivered pursuant hereto. Pursuant to Exhibit "B" attached hereto and made a part hereof, Seller may demand assurance of Buyer's ability to pay and may from time to time demand different terms of payment whenever, in Seller's sole discretion, Buyer's financial condition requires such change. Seller, upon making such demand and until the assurance requested by Seller has been provided to Seller, may, in its sole discretion, suspend deliveries of gas pursuant to any or all Transactions, in whole or in part. If Buyer refuses or fails to give the assurance requested by Seller or to accept different terms of payment requested by Seller within ten (10) days after receipt of Seller's demand, Buyer shall be deemed to have anticipatorily repudiated this Agreement and all Transactions, and Seller may, in its sole discretion, immediately cancel this Agreement and any or all Transactions, in whole or in per• 3. Title and Possession: Risk of loss and title shall transfer from Seller to Buyer at the Point of Delivery described in the Transaction Confirmation. Seller shall be solely liable and responsible for, and shall indemnify and hold harmless Buyer from and against, all claims, losses, liabilities, or damages (including attorneys' fees and other reasonable litigation costs) (collectively, "Claims") arising out of or related to, directly or indirectly, title to the gas, personal injury (including bodily injury or death) related to the gas, or property damage related to the gas prior to the Point of Delivery, and Buyer shall be solely liable and responsible for, and shall indemnify and hold harmless Seller from and against, Claims arising out of or related to, directly or indirectly, payment, personal injury (including bodily injury or death) related to the gas, or property damage related to the gas at and after the Point of Delivery. 4. Quality: All gas delivered shall be merchantable and shall conform to all of the specifications promulgated or otherwise required by the owner(s) of the facilities at the Point of Delivery. Buyer may refuse to accept such gas pending correction of quality deficiencies. 5. Entiretlof Agreement: This Agreement shall constitute the entire agreement between the parties and supersedes all previous agreements (whether written or oral), unless otherwise provided herein. No other promises, agreements or warranties additional to this Agreement shall be deemed a part hereof nor shall any alteration or amendment of this Agreement be effective without the written consent of each Party. 6. Pipeline Confirmations and Statements: Buyer shall provide Seller any statement or confirmation of volumes received from any transporting pipeline if requested by Seller. Transporting pipeline shall include any local distribution company, as applicable. 7. Liquidated Damages: In addition to any liability for imbalance charges in Paragraph 17 below, which shall not be recovered twice by the following remedy, the exclusive and sole remedy of the parties in the event of a breach of a Firm obligation shall be recovery of the following: (i) in the event of a breach by Seller on any day(s), payment by Seller to Buyer in an amount equal to the positive difference, if any, between the purchase price paid by Buyer utilizing the Cover Standard for replacement Gas and the Contract Price (as set forth on any applicable Exhibit A hereto), adjusted for commercially reasonable differences in transportation costs to or from the Point(s) of Delivery, multiplied by the difference between the Contract Quantity (as set forth on any applicable Exhibit A hereto) and the quantity actually delivered by Seller for such day(s); or (ii) in the event of a breach by Buyer on any day(s), payment by Buyer to Seller in the amount equal to the positive difference, if any, between the Contract Price and the price received by Seller utilizing the Cover Standard for the resale of such Gas, adjusted for commercially reasonable differences in transportation costs to or from the Point(s) of Delivery, multiplied by the difference between the Contract Quantity and the quantity actually taken by Buyer for such day(s); or (iii) in the event that Buyer has used commercially reasonable efforts to replace the Gas or Seller has used commercially reasonable efforts to sell the Gas to a third party, and no such replacement or sale is available, then the exclusive and sole remedy of the non -breaching party shall be any unfavorable difference between the Contract Price and the Spot Price, adjusted for such transportation to the applicable Point(s) of Delivery, multiplied by the difference between the Contract Quantity and the quantity actually delivered by Seller and received by Buyer for such day(s). "Spot Price" means the price listed in the publication Gas Daily (published by Financial Times Energy or any successor thereto) under the heading "Midpoint" in the table 'Daily Price Survey" applicable to the geographic location closest in proximity to the Points) of Delivery for the relevant day. "Cover Standard" means that the non -defaulting party shall use commercially reasonable efforts to obtain Gas, or sell Gas, at a price reasonable for the delivery or production area, as applicable, consistent with: the amount of notice provided by the defaulting party; the immediacy of the Buyer's Gas consumption needs or Seller's Gas sales requirements, as applicable; the quantities involved; and the anticipated length of failure by the defaulting party. 8. Force Majeure: (a) "Force Majeure" as used in this Agreement means acts of God; landslides; lightning; earthquakes; storms or storm warnings, such as hurricanes, which result in evacuation of the affected area; floods; washouts; fires; explosions; interruption of firm transportation and/or storage; unplanned outages of, breakage of, or accidents related to equipment, machinery, or lines of pipe; weather (such as low temperatures which cause freezing or failure of wells, equipment, machinery or lines of pipe); strikes, lockouts or other industrial disturbances; riots; sabotage; insurrection; war; any governmental or court 4 action such as necessity for compliance with any court order, law, statute, ordinance, or regulation promulgated by a governmental authority having or alleging to have jurisdiction; exhaustion, reduction or unavailability of gas at the source of supply from which deliveries are normally made; or any other cause or causes (except financial) beyond such Party's reasonable control, whether similar or dissimilar to those stated above, and which cause or causes could not have been avoided or prevented by the exercise of due diligence. In the event either Party is rendered unable, wholly or in part, to perform its obligations under this Agreement (except for the obligation to make any payment) because of an event of Force Majeure, the obligations of each Party pursuant to this Agreement (other than the obligation to make any payment) shall be suspended for the continuance of any inability so caused but for no longer period. The Party claiming Force Majeure shall immediately notify the other Party in writing describing the nature and estimated duration of such inability to perform. The cause of such inability to perform shall, so far as possible, be remedied by the Party prevented from performance of this Agreement with all reasonable dispatch. (b) (i) Notwithstanding anything to the contrary in this Agreement (including, without limitation, anything in Paragraph 8(a)), in the event (a) Seller is unable to sell and deliver the Contract Quantity as a result of an event of Force Majeure, and (b) the Contract Price for such Contract Quantity is a fixed price, Seller shall pay Buyer for each MMBtu of Gas not delivered as provided in Paragraph 7 above. (ii) Notwithstanding anything to the contrary in this Agreement (including, without limitation, anything in Paragraph 8(a)), in the event (a) Buyer is unable to purchase and receive the Contract Quantity as a result of an event of Force Majeure, and (b) the Contract Price for such Contract Quantity is a fixed price, Buyer shall pay Seller for each MMBtu of Gas not purchased and received as provided in Paragraph 7 above. 9. Taxes and Fees: Seller shall pay and discharge all production, severance, or similar taxes levied on the gas delivered by Seller and hold Buyer harmless in connection therewith prior to the point of delivery. All taxes, fees, tariffs, and charges incurred at and after the Point of Delivery shall be borne and paid by Buyer and Buyer shall hold Seller harmless in connection therewith. 10. Notices: Any notice shall be in writing and shall be delivered by courier, by United States first- class mail (postage pre -paid), or by facsimile to the address or facsimile number, as applicable, first set forth herein, unless changed by written notice. Notices shall be deemed received when (i) for notices delivered by United States first-class mail (postage pre -paid), the day such notice is deposited in a United States Post Office with postage fully prepaid, (ii) for notices delivered by facsimile, if delivered before 5:00 p.m. Central Standard Time on any business day, the day such notice was transmitted by facsimile, otherwise the next business day, and (iii) for notices delivered by courier, the day received by the Party if received on a business day, otherwise, the next business day. The term "business day" as used in this Agreement means any day the receiving Party is regularly open for the purpose of conducting business and specifically excludes all Saturdays, Sundays, and holidays the receiving Party's office located at the address for notice purposes is closed for business. 11. Auditing: Each Party hereto shall have the right, at all reasonable times within two (2) years of the date of any invoice and at its sole expense, to audit the books and records of the other Party to the extent necessary to verify the accuracy of any invoice, charge, computation, or demand made under or pursuant to this Agreement. If a Party has not received written notice of a demand to audit its books and records from the other Party within two (2) years of the date of any invoice, such invoice shall be deemed correct for all purposes, and each Party waives any right to claim such invoice was incorrect or inaccurate. 12. Assignment: This Agreement shall not be assignable by either Party without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate, provided that any such assignment shall not release the assignor of any of the obligations hereunder unless consented to in writing by the non -assigning Party. Before any such assignment shall become effective, the assignee shall assume in writing all of the assignor's obligations under this Agreement. Any assignment in violation of this paragraph shall be null and void and of no force or effect. The term "affiliate" as used in this paragraph means, in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose, "control" of any entity or person means ownership of a majority of the voting power of the entity or person. 13. Waiver: The waiver by either Party of the breach of any provision hereof by the other Party shall not be deemed to be a waiver of the breach of any other provision or provisions hereof or of any subsequent or continuing breach of such provision or provisions. 14. Successors: This Agreement shall bind and inure to the benefit of the Parries hereto and their respective successors and permitted assigns. 15. Disputes: Choice of Law and Venue: In any litigated dispute under this Agreement, the prevailing Party shall be entitled to recover from the other Party all reasonable legal costs and all direct out- of-pocket costs associated with the litigation incurred by the prevailing Party, including, without limitation, all reasonable attorneys' fees and costs of court. THIS AGREEMENT AND ANY DISPUTES ARISING PURSUANT TO OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, ENFORCED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA. 16. Confidentiality: This Agreement and all of its provisions are strictly confidential between the Parties and shall not be disclosed to the extent permitted by law, except to their respective attorneys and accountants who agree to keep the provisions of this Agreement strictly confidential , without the prior written consent of the other Party. Any Party that believes it is required by law to disclose the provisions of this Agreement shall, before disclosing same, immediately notify the other Party in writing and make all reasonable efforts to limit, restrict, or reduce the number of third parties provided access to this Agreement. 17. Imbalances: Buyer and Seller shall use all reasonable efforts to avoid the occurrence of any imbalances under this Agreement and shall immediately notify the other upon discovery of any imbalance. Both Parties agree to cooperate to prevent or remedy any imbalance that may occur on a daily basis, and the Party causing an imbalance shall be responsible for any imbalance penalties that may occur under this Agreement. Specifically, during any period when transporter has invoked balancing parameters for Tess than a full calendar month, including but not limited to OFO and EFO events as defined in the transporter's tariff, Buyer agrees to provide Seller twenty four (24) hours prior written notice of Buyer's estimated usage. Should Buyer's actual usage vary from Buyer's usage estimate and as a result an imbalance penalty is imposed by transporter, said imbalance shall accrue to Buyer. Any imbalance created prior to the effective date hereof shall be Buyer's responsibility. 18. Nominations: Procedures for Buyer's submission of nominations to Seller shall be stated in a Transaction Confirmation. Seller shall perform all nominations on Buyer's behalf with Buyer's cooperation and shall act as Buyer's Contracted Marketer or Authorized Agent as provided by transporter's current Contracted Marketer or Authorized Agency program or any successor program implemented by transporter. 19. Default and Breach: The Parties specifically agree that this Agreement and all Transactions are "forward contracts" as such term is defined in the United States Bankruptcy Code, 11 U.S.C. Section 101(25). The occurrence at any time with respect to a Party of any of the following 6 constitutes a material breach and/or event of default of this Agreement: (a) a Party makes a general assignment or arrangement for the benefit of creditors; (b) a Party becomes bankrupt, a debtor in a bankruptcy proceeding, insolvent or unable to pay its debts as they become due; (c) a Party files a petition or otherwise commences a proceeding under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it; (d) a Party has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or a substantial portion of its property or assets; (e) a "Credit Event" (as such term is defined in Exhibit B attached hereto) occurs with respect to Buyer or Buyer's "Credit Support Provider" (as such term is defined in Exhibit B attached hereto); (f) a Party fails to make any payment on or before the date due; or (g) any of the representations and warranties given herein by a Party is materially incorrect or inaccurate. In the event of a material breach of any terms of this Agreement or an event of default, the non -defaulting Party may elect to terminate this Agreement by providing the defaulting Party written notice stating the effective date of termination (the "Liquidation Date"), which Liquidation Date may be the date of written notice. In the event of the occurrence of (a), (b), (c), or (d) immediately preceding, this Agreement shall automatically terminate without notice effective upon the occurrence of such events. If the non -defaulting Party elects to terminate this Agreement or if this Agreement automatically terminates as provided above, the non -defaulting Party shall calculate and be entitled to the Settlement Amount. The "Settlement Amount" is the positive value, if any, of (a) minus (b) plus (c), where (a) is the sum of the products of the quantities of gas multiplied by the prices for such gas during the remaining term of a Transaction assuming it had not been terminated, (b) is the equivalent quantities and relevant market prices for the remaining term of a Transaction either quoted by a bona fide third party offer or which are reasonably expected to be available in the market under a replacement contract, and (c) is the non - defaulting Parry's out-of-pocket damages and losses, including, without limitation, its associated costs and attorneys' fees, resulting from the default or material breach of the other Party. To ascertain the market prices of a replacement contract the non -defaulting Party may consider, among other valuations, the settlement prices of the New York Mercantile Exchange ("NYMEX") gas futures contracts, quotations from any leading dealer in gas sway contracts and other bona fide third party offers, all adjusted for the length of the remaining term and the basis differential, if any. If the calculation of the Settlement Amount results in a negative value, the Settlement Amount shall be deemed to be zero. The defaulting Party shall pay the non -defaulting Party the Settlement Amount, if any, within five (5) days of receipt of the non -defaulting Party's invoice of the Settlement Amount. The Parties agree that the Settlement Amount is not a penalty but is a reasonable approximation of the liquidated damages suffered by the non -defaulting Party because of the defaulting Party's material breach of this Agreement or because of an event of default. 20. Re gto : Should the implementation of Capacity Brokering or Federal Energy Regulatory Commission ("FERC") Order 636, or any, companion order thereto or any other order issued or tariff approved by a State or Federal regulatory body having jurisdiction over the gas covered by this Agreement cause this Agreement to have an adverse economic impact on either Party hereto or prevent either Party from performing under the terms of this Agreement, the Parties shall promptly and in good faith negotiate alternative arrangements satisfactory to each other that would allow deliveries of gas in conjunction with this Agreement to continue. If no alternative agreement can be reached within thirty (30) days, then the obligations of the Parties under this Agreement may be terminated (without liability to either Party) by the adversely affected Party by providing written notice to the other Party no later than thirty (30) days after negotiations cease. 21. Limitation of Damages: FOR BREACH OF ANY PROVISION OF THIS AGREEMENT, A PARTY'S LIABILITY SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES ONLY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ANY CLAIM FOR SUCH DAMAGES IS EXPRESSLY WAIVED. 7 22. Index and Methodology: For index priced gas volumes, should the index or methodology used to determine the cost of gas be materially changed or should the index cease to be published, Buyer and Seller shall in good faith attempt to choose an alternate index, an alternate publication, and/or revise the contract price methodology. If the Parties cannot agree to an alternate index, an alternate publication, and/or a revised pricing methodology within thirty (30) days of the start of negotiations, then either Party may terminate this Agreement (without liability to either Party) by providing written notice to the other Party no later than thirty (30) days after negotiations cease. 23. Contract nuantity: Buyer shall purchase, and Seller shall sell, one hundred percent (100%) of Buyer's share of natural gas requirements from Seller for the facilities listed in a Transaction Confirmation. 24. Imbalance Trading: Buyer shall execute all documents required by transporter to allow Seller to have Buyer's imbalance account placed into Seller's Contracted Marketer or Authorized Agent account with transporter and Seller shall perform all imbalance trading on behalf of Buyer. 25. Electronic Recording and Signatures: The Parties hereby consent to the electronic recording of their oral agreements and related telephone conversations. Recorded telephone conversations shall be deemed to be a "writing" and may be used as evidence of the Transaction in the absence of a written Transaction Confirmation. Seller shall promptly confirm all oral agreements in writing by facsimile or otherwise using a form substantially similar to Exhibit A attached hereto. If Buyer fails to object to the terms of a written Transaction Confirmation within 3 business days of receipt of same, such Transaction Confirmation shall be deemed accepted by Buyer and correct in all respects. The letterhead of a Party shall be deemed to be such Party's signature, and facsimile handwritten signatures shall be deemed to be original handwritten signatures for all purposes. Electronic mail or email shall be deemed to be a "writing" and an email letterhead or typed or electronic signature in email shall be deemed to be signed by the Party sending same. In the event of a conflict between the various documentary or evidentiary forms of a Transaction, the following order of priority (1 being the highest priority and 4 the lowest) shall control to the extent of any conflict: (1) written Transaction Confirmation; (2) email confirmation of a Transaction; (3) recorded telephone conversation of a Transaction; and (4) this Agreement. 26. Counterparts: This Agreement and any Transaction Confirmation may be executed in multiple counterparts. Each counterpart shall be deemed an original, but when taken together, such counterparts shall be deemed to be one agreement. EXHIBIT G°A" TO NATURAL GAS PURCHASE AND SALES AGREEMENT TRANSACTION CONFIRMATION BP Agreement No. 601207 DATED: May 1, 2002 Seller: Buyer: BP Energy Company City of Vernon 18101 Von Karman Ave., Suite 1940 4305 Santa Fe Ave. Irvine, CA 92612 Vernon, CA 90058 Representative: Joe Alves Representative: Jorge Somoano Exhibit Date: May 1, 2002. Term: May 1, 2002, through September 30, 2002. Seller has the option to extend the Term through December 31, 2003, by written notification to Buyer by August 1, 2002. Buyer's Facilities: Existing facilities (combustion turbines) including the new 134 MW power plant scheduled to be completed by September, 2003. Point(s) of Delivery: All Southern California border receipt points into SoCalGas system. Contract Quantity: Buyer shall purchase, and Seller shall sell, one hundred percent (100%) of Buyer's share of natural gas requirements from Seller for Buyer's Facilities. Third Party Volume: If Buyer sells a portion of the generation capacity of the new 134 MW power plant to a Third Party, that Third Party shall have the right to deliver volume for Third Party generation requirements. Buyer will notify Seller by 8 a.m. CPT no less than six business days written notice prior to the first day of the month that Buyer will deliver Third Party Volume into Seller's SoCalGas balancing pool. All Third Party Volume shall be subject to the terms and conditions of this Agreement, with the exception of the Contract Price section of this Exhibit "A". Nomination Procedure: Monthly Quantity - Five (5) business days prior to the upcoming month, Buyer will provide Seller a monthly nomination for any base load quantity. Daily Quantity - During the month, Buyer may need additional daily volume from Seller. Buyer will notify Seller no later than the day before effective flow date by 8:00 AM CST of its daily nomination. Nominations for Saturday through Monday are due by 8:00 AM CST on the Friday before effective flow days. Contract Price (per dry MMBtu): The Monthly Quantity contract price up to 100,000 MMBtu over the annual Term shall be equal to the applicable monthly index published in Natural Gas Intelligence (NGI), SoCal Border Avg., minus $0.03 per MMBtu. Additional quantities above 100,000 MMBtu will be mutually agreed between Buyer and Seller. The Daily Quantity contract price will be a mutually agreed upon fixed price or market price published in Gas Daily at the Point(s) of Delivery on the appropriate day of delivery. Buyer shall have the option to convert index quantities to fixed pricing. For purposes of identifying consumed volumes, they shall be, first, fixed price volumes, next, monthly index volumes, and last, daily priced volumes. This Transaction Confirmation is subject to, forms a part of and supplements the terms and conditions of that certain Natural Gas Purchase and Sale Agreement of the BP Contract number listed above (the "Agreement"). Defined terms and references used in this Transaction Confirmation but not defined herein shall have the meanings set forth in the Agreement. ACCEPTED and AGREED: Seller: BP Energy Company By: VVW' - a Name: i � W . W-v O C�YL. Title:gi, ram. 0(Z1LCotVs/--nbt"1 �DJTW-L4WS c7 ATTEST: BRUCE V. MALKENHORST, City Clerk 2 Buyer: THE CITY OF VERNON LEONIS C. MALBURG, Mayor APPROVED AS TO FORM: EDUARTO OLIVO, City Attomev 3 1 W14 4. IIc3Y11:3 TO NATURAL GAS PURCHASE AND SALES AGREEMENT CREDIT SUPPORT ADDENDUM A. Credit Requirements. At any time, and from time to time during the term of this Agreement, if the Contract Exposure (as such term is defined below) should exceed $500,000 (the "Security Threshold"), Seller may require Buyer to provide Performance Assurance (as such term is defined below) in an amount equal to the amount by which the Contract Exposure exceeds the Security Threshold (rounding upwards for any fractional amount to the next $100,000). The Performance Assurance shall be delivered within two (2) business days of the date of Seller's request. On any business day (but no more frequently than weekly with respect to letters of credit and daily with respect to cash), Buyer, at its sole cost, may request Seller to reduce its Performance Assurance then in place if the Contract Exposure reverts back to an amount less than or equal to the sum of the Performance Assurance and the Security Threshold then in place (rounding upwards for any fractional amount to the next $100,000). B. In Seller's sole discretion, if applicable, in order to support Buyer's Security Threshold and secure all payment obligations of Buyer hereunder, Buyer shall execute and deliver to Seller a term bank letter of credit agreement in the amount of U.S. $(not applicable) which term bank letter of credit agreement shall be in form and substance and from a commercial bank satisfactory to Seller in its sole discretion and shall be executed and delivered by Buyer before the delivery of any gas pursuant to this Agreement, or if gas pis being delivered pursuant to this Agreement, Seller may, in its sole discretion, immediately suspend any or all deliveries of gas, in whole or in part, until Buyer delivers to Seller such guaranty agreement. C. Credit Events Of Default. The following events (each a "Credit Event') shall be events of default of the Agreement and Seller shall have the right to exercise any of the remedies available to Seller upon the occurrence of a Credit Event. (i) Buyer fails to establish, maintain, extend or increase Performance Assurance when required pursuant to this Credit Support Addendum; or (ii) In the reasonable opinion of Seller, (x) a material adverse change has occurred in the business, financial condition or operations of Buyer or its Credit Support Provider, and/or (y) Buyer's ability to meet its obligations under the Agreement has become materially impaired; or (iii) Buyer's Credit Support Provider fails to perform any covenant set forth in any guaranty agreement delivered in accordance with this Credit Support Addendum, or Buyer's Credit Support Provider shall take or suffer any actions set forth in Paragraph 19(a), (b), (c), or (d) of the Agreement as applied to it; or (iv) Buyer's Credit Support Provider's Credit Rating is downgraded by either Moody's or S&P from the Credit Rating in existence on the date of this Agreement or Buyer's Credit Support Provider ceases to be rated by S&P or Moody's subsequent to the date of this Agreement; or (v) Either Buyer or Buyer's Credit Support Provider fails to timely provide financial information as provided in Paragraph D below. D. Financial Information. Buyer shall deliver within 180 days following the end of each fiscal year, a copy of any audited or unaudited consolidated financial statements for such fiscal year. In all cases OFFICE OF THE CITY ADMINISTRATOR/CITY CLERK INTER -OFFICE MEMORANDUM DATE: June 10, 2002 TO: Jorge Somoano Assistant Director of Resource Management FROM: Nelly Giron Assistant to the Chief Deputy City Clerk RE: BP Energy Company Natural Gas Purchase and Sale Agreement Jorge, Transmitted herewith is an original duplicate copy of the above referenced for you to forward to BP Energy Company. :ng c c : . ^;_„ `* Agreement File No. 02-017