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HomeMy WebLinkAbout1996-099 Agrmt AMND 7- BPA No DE-MS79-81BP90432Amendatory Agreement No. 7 to Contract No. DE-MS79-~81~BP90432 AMENDATORY AGREEMENT executed by the UNITED STATES OF AMERICA DEPARTMENT OF ENERGY acting by and through the BONNEVILLE POWER ADMINISTRATION and THE CITY OF ASHLAND, OREGON Section 1. 2. 3. 4. 5. 6. Index to Sections Page Extension of the Term of the Agreement ........................................................ 2 Purchaser Load Commitment .........................................................................2 Purchaser Conservation Commitment ............................................................ 6 Bonneville Commitment to Price Stability ......................................................7 Stranded Costs .................................................................................................9 Dispute Resolution ...........................................................................................9 ThisjAM~ENDATORY AGREEMENT (Amendatory Agreement), executed ~ ~- ~, 19~ ~, by the UNITED STATES OF AMERICA (Government), Department of Energy, acting by and through the BONNEVILLE POWER ADMINISTRATION (Bonneville), and THE CITY OF ASHLAND, OREGON (Purchaser), a municipal corporation incorporated under the laws of the State of Oregon. WITNESSETH: WHEREAS Bonneville and the Purchaser executed a power sales contract (Contract No. DE-MS79-~81~BP90432) providing for the sale and delivery of Firm Power by Bonneville, and which as amended is hereinafter referred to as the "Agreement;" and WHEREAS Bonneville is authorized under law to dispose of electric power and energy generated at various Federal hydroelectric projects in the Pacific Northwest or acquired from other sources, to provide transmission and other services, and to enter into agreements to carry out such authority; and WHEREAS the parties desire to make the additions, changes or modifications to the terms of the Agreement consistent with the terms specified below; NOW, THEREFORE, the parties hereto mutually agree as follows: EXTENSION OF THE TERM OF THE AGREEMENT Bonneville and the Purchaser agree that this Amendatory Agreement extends the term of the Agreement from 0000 hours on July 1, 2001, through 2400 hours on the last day of the end of the Purchaser's Billing Month that includes September 30, 2001. This Amendatory Agreement shall be fully a part of the Agreement when executed by the parties and incorporated therein. This Amendatory Agreement shall be attached to the Agreement. 2. PURCHASER LOAD COMMITMENT (a) The Purchaser agrees to purchase from Bonneville amounts of Firm Power, transmission and other products to meet all of its Actual Firm Load net of the Purchaser's Firm Resources described in section 2(b), below, for the remaining term of the Agreement. Such purchases may be made on a Metered Requirements, Actual Computed Requirements, or Planned Computed Requirements basis as determined in accordance with the Agreement. (b) The Purchaser's Firm Resources are: (1) those amounts of Firm Resources, except Columbia Storage Power Exchange Agreement resources, dedicated to serve the Purchaser's 2 Contract No. DE-MS79-{81}BP90432 Actual Firm Load in the Purchaser's Firm Resources Exhibit approved as of February 15, 1995; (2) any amounts of power the Purchaser is entitled to receive under the Columbia Storage Power Exchange Agreement; (3) any resource which the Purchaser is required by the Public Utility Regulatory Policies Act of 1978 to acquire and the Purchaser elects to apply to serving its Actual Firm Load; and (4) additional resource(s), which the Purchaser may elect to add and which Bonneville agrees may be added under section 12(b)(14) of the Agreement, to its Firm Resources Exhibit, with Assured Energy Capabilities that do not exceed 2 average megawatts (aMW) in Operating Year (OY) 1996-1997, 2 aMW in OY 1997-1998, 2 aMW in OY 1998-1999, 2 aMW in OY 1999-2000, 2 aMW in OY 2000-2001, and 2 aMW during each month of the remaining term of the Agreement in OY 2001-2002. The Purchaser and Bonneville agree that deliveries from resources will be added on October 1, 1996, in OY 1996-1997, and deliveries will not commence until October 1, 1996. Any Firm Resource added pursuant to this section 2(b)(4) that is a contract supplying amounts of firm power to the Purchaser or to Bonneville for the Purchaser's account shall contain delivery provisions providing for delivery as follows: The Purchaser agrees to pay Bonneville an exit fee of $157,000 in one lump sum payment within 30 days of the effective date of this amendment. (B) monthly amounts of energy with a specified maximum demand of 4 megawatts. 3 Contract No. DE-MS79-{81}BP90432 The Purchaser shall submit to Bonneville the Firm Resources Exhibit for OY 1996-1997 within 30 days of the execution of this Amendatory Agreement. Thereafter, the Purchaser shall submit to Bonneville each January 1, as required by the Agreement, a revision of its Firm Resources Exhibit, reflecting the addition of Firm Resource or Firm Resources to be added pursuant to sections 2(b)(3) and 2(b)(4), above, for the next Operating Year or Operating Years. Notwithstanding section 12(b) of the Agreement, the Purchaser shall not include in any such revised Firm Resources Exhibit any Firm Resources other than those permitted by section 2(b), above. If required, the Purchaser shall also submit an Assured Capability Exhibit as required by the Agreement. (d) For Purchasers who are purchasing on a Metered Requirements basis and have Firm Resources that are contracts with third parties supplying amounts of firm power to Bonneville for the Purchaser's account, the Purchaser agrees that, for the portion of its Actual Firm Load served by such dedicated Firm Resources added under section 2(b)(4), above, Bonneville shall not be obligated to serve such load under this Amendatory Agreement prior to the notice under section 2(f), below. The Purchaser agrees that its supplier shall establish schedules with Bonneville in accordance with the provisions of section 18 of the Agreement. Any power that cannot be assigned to a class of power supplied by Bonneville and that is delivered by Bonneville to the Purchaser's loads due to a failure of the Purchaser's supplier to deliver power to Bonneville or the Purchaser's system for the Purchaser's account to meet its delivery obligation shall be treated as an Unauthorized Increase. Such delivery obligation shall be established no later than the time specified under the provisions of section 18 of the Agreement. (e) During the term of the Agreement, Purchaser shall not be designated to purchase Firm Power on the basis of Computed Requirements 4 Contract No. DE-MS79-{81}BP90432 Should the Purchaser wish to receive requirements service from Bonneville prior to the expiration of the Agreement for any portion of Purchaser's load which was served with Firm Resources pursuant to section 2(b)(4), Purchaser must provide Bonneville written notice of such request for requirements service not less than 24 months prior to the requested start of service with an accompanying purchase request for 3 years. Bonneville shall have no obligation to provide requirements service to such load during the 24-month notice period. Provision of requirements service to such loads shall be subject to the availability of Federal resources to serve such loads and terms and conditions of contracts being offered by Bonneville for such requirements service at such time. Once Bonneville has made a contract offer including the price of the service, the Purchaser shall have 30 days to accept such offer or the Purchaser's notice will be extinguished. Notwithstanding anything to the contrary in this Amendatory Agreement, the Purchaser agrees that Bonneville may elect to establish a separate rate or rates for the provision of requirements service to that portion of the Purchaser's loads which was served with Firm Resources pursuant to section 2(b)(4). (g) The parties agree that section 2(f) shall remain as an ongoing obligation after the expiration or termination of the Agreement and of this Amendatory Agreement. 3. PURCHASER CONSERVATION COMMITMENT (a) Purchaser Conservation Plans The Purchaser agrees to: (1) develop a conservation plan to acquire the conservation that is, by the Purchaser's determination, cost effective to the Purchaser and available to it; 5 Contract No. DE-MS79-{81~BP90432 (2) provide a summary of that plan to Bonneville by December 31, 1996; (3) take all reasonable action necessary to implement the plan; and (4) certify and report annually its conservation achievements to Bonneville. (b) Technical and Financial Assistance At the Purchaser's request, Bonneville will provide Purchaser-specific conservation guidance and technical assistance. Associated charges, if any, will be negotiated by the parties. Bonneville will also offer financial assistance to the Purchaser for conservation projects included in the Purchaser's conservation plan. Such financial assistance will be subject to the availability of Bonneville funds. The Purchaser agrees to repay Bonneville for any such financial assistance on the terms negotiated by the parties. (c) Eligibility for Conservation Incentives The Purchaser will receive a conservation incentive, through a waiver of the 24-month notice provision of section 2(f), above, based on the amount of conservation it achieves during the term of this Amendatory Agreement. Upon notice provided to Bonneville by the Purchaser by February 15 of each year, the Purchaser may obligate Bonneville to provide Priority Firm Power in the next Operating Year, at the applicable prevailing rates for power offered in such years, for service to portions of the Purchaser's retail load that Bonneville would not have been obligated to serve in that Operating Year under the Agreement except for this section 3(c) of this Amendatory Agreement. Such provision of Priority Firm Power may be in an amount up to twice the identified conservation achievements (expressed in aMW) achieved by the Purchaser during the term of this Amendatory Agreement and prior to the most recently completed Operating Year. 6 Contract No. DE-MS79-{81)BP90432 4. BONNEVILLE COMMITMENT TO PRICE STABILITY (a) The Bonneville wholesale power and transmission rate schedules applicable to the Purchaser, including any charges set forth or referenced therein, which take effect on October 1, 1996 (Initial Rates) shall be incorporated in the Agreement as Exhibit A as if attached hereto. The Initial Rates will be subject to review and final approval by the Federal Energy Regulatory Commission, which may include judicial review and remand to Bonneville (Final Rates). The Final Rates shall be incorporated in the Agreement as Exhibit A as if attached hereto, and shall be substituted for the Initial Rates. The Initial and Final Rates shall be applied to the Firm Power sold by Bonneville and bought by the Purchaser pursuant to the Agreement and this Amendatory Agreement; provided, however, that Firm Power the Purchaser buys from Bonneville for load that could have been served with the additional Firm Resources under section 2(b)(4), above, but which was not so served, shall be purchased at the wholesale power and transmission rates applicable to such sales to the Purchaser in effect at the time of the sale and which rates may be different from the Initial and Final Rates. (b) Notwithstanding the last sentence of section 15(a), the second sentence of section 19(a), and section 8 of the General Contract Provisions of the Agreement, Purchaser shall have no obligation to pay Bonneville wholesale power, transmission, or products and services rates which differ from the rates specified in section 4(a), above, for the products and services being purchased under section 2(a) of this Amendatory Agreement or under the Agreement. (c) Notwithstanding the provimons of sections 8(c), 18, and 32(a) of the General Contract Provisions of the Agreement, Purchaser shall have no obligation to pay any portion of its Bonneville power bill that has been calculated using Bonneville's wholesale power, transmission, and products and services rates which differ from the rates specified in section 4(a), above, for the products 7 Contract No. DE-MS79-(81)BP90432 and services being purchased under section 2(a) of this Amendatory Agreement or under the Agreement. Should Purchaser receive a Bonneville power bill calculated using Bonneville wholesale power and transmission rate or rates which differ from the rates specified in section 4(a), above, for the products and services being purchased under section 2(a) of this Amendatory Agreement or under the Agreement, Purchaser may notify Bonneville of a dispute in its Bonneville power bill, stating the amount in dispute. In such event, Purchaser shall pay that portion of the Bonneville power bill not in dispute, and may retain the amount of the Bonneville power bill that is in dispute. (d) Upon final resolution of any dispute arising out of this section 4, any payment due from one party to the other party based on a payment of the amounts retained pursuant to section 4(c) shall be paid with interest computed from the due date of the bill until the date payment is made. Interest will be computed using the U.S. Prime Rate for Large Banks as currently reported in the Wall Street Journal. The applicable rate will be the rate reported on the date of final resolution of any dispute arising under this section 4. (e) Any reference in the Agreement to the Priority Firm Power rate shall mean either the Initial Rate or Final Rate, whichever is in effect at the time, for all purposes under this Amendatory Agreement and the Agreement. 5. STRANDED COSTS (a) Nothing included in or omitted from this Amendatory Agreement either creates or extinguishes any rights or obligations, if any, of either party regarding cost recovery subsequent to the termination or expiration of the Agreement, and such rights or obligations, if any, shall be as if this Amendatory Agreement had not been executed. 8 Contract No. DE-MS79-{81}BP90432 (b) Bonneville agrees not to recover, in any form, stranded costs it believes it may be entitled to from the Purchaser for the remaining term of the Agreement, provided, however, that Purchaser does not agree that Bonneville has the authority to recover such costs. (c) Nothing in this Amendatory Agreement is intended to imply that the Purchaser would or would not have any obligation to pay such stranded costs under any circumstances. 6. DISPUTE RESOLUTION (a) Bonneville and the Purchaser agree that any dispute arising out of sections 2(a), 2(b), and 4 of this Amendatory Agreement may, upon written notice of either party to the other, be resolved by binding arbitration as set forth in this section 6. All other matters or issues in dispute between Bonneville and the Purchaser which may arise under the Agreement shall be resolved consistent with the terms of section 32 of the General Contract Provisions. (b) The procedures for initiating binding arbitration, the selection of arbitrators, the determinations by the arbitrators and the payment of costs shall be as set forth in section 32(b) of the General Contract Provisions. No other provision of section 32 of the General Contract Provisions shall apply to a binding arbitration proceeding pursuant to this section 6. (c) Any final determination by the arbitrators in a binding arbitration proceeding pursuant to this section 6 shall be enforceable by and against the parties in any court of competent jurisdiction. 9 Contract No. DE-MS79-{81}BP90432 (d) Either party may seek review of an arbitration decision on the grounds of fraud, misrepresentation, misconduct, or fbr review of an issue arising under the Constitution of the United States. Any such review shall be filed in the Federal court which has jurisdiction for such review. IN WITNESS WHEREOF, the parties hereto have executed this Amendatory Agreement in several counterparts. UNITED STATES OF AMERICA Department of Energy Bonneville Power Administration By Account Executive Name Alberto D. Perez (Print/Type) · I // Date - ~'-? ~/'/~ '~?' ~ THE CITY OF ASHLAND, OREGON By Name Catherine M. Golden (Print/Type) Title Mayor Date July 2, 1996 (BUD-SVE-W:\SALES\SALEUGN\WALKER~AAS\90432AA7.DOC) 10 Contract No. DE-MS79-{81}BP90432 Department of Energy Bonneville Power Administration Eugene Customer Service Center 1600 Valley River Drive, Suite 230 Eugene, Oregon 97401-2129 July 11, 1996 Brian L. Almquist, City Administrator City of Ashland City Hall 20 E Main Ashland, OR 97520 Dear Mr. Almquist: Enclosed is an authenticated copy of your Amendatory Agreement 7 for your files. If you have any questions please feel free to contact me at 541-465-6958. Thank you. Sincerely, Sandra Taylor Bonneville Power Administration AUTHENTICATED Amendatory Agreement No. 7 to Contract No. DE-MS79-81BP90432 AMENDATORY AGREEMENT executed by the UNITED STATES OF AMERICA DEPARTMENT OF ENERGY acting by and through the BONNEVILLE POWER ADMINISTRATION and THE CITY OF ASHLAND, OREGON Section 1. 3. 4. 5. 6. Index to Sections Page Extension of the Term of the Agreement ........................................................2 Purchaser Load Commitment .........................................................................2 Purchaser Conservation Commitment ............................................................6 Bonneville Commitment to Price Stability ......................................................7 Stranded Costs .................................................................................................9 Dispute Resolution ...........................................................................................9 This AMENDATORY AGREEMENT (Amendatory Agreement), executed June 27 , 19 96 , by the UNITED STATES OF AMERICA (Government), Department of Energy, acting by and through the BONNEVILLE POWER ADMINISTRATION (Bonneville), and. THE CITY OF ASHLAND, OREGON (Purchaser), a cooperative incorporated under the laws of the State of Oregon. WITNESSETH: WHEREAS Bonneville and the Purchaser executed a power sales contract (Contract No. DE-MS79-81BP90432) providing for the sale and delivery of Firm Power by Bonneville, and which as amended is hereinafter referred to as the "Agreement;" and WHEREAS Bonneville is authorized under law to dispose of electric power and energy generated at various Federal hydroelectric projects in the Pacific Northwest or acquired from other sources, to provide transmission and other services, and to enter into agreements to carry out such authority; and WHEREAS the parties desire to make the additions, changes or modifications to the terms of the Agreement consistent with the terms specified below; NOW, THEREFORE, the parties hereto mutually agree as follows: EXTENSION OF THE TERM OF THE AGREEMENT Bonneville and the Purchaser agree that this Amendatory Agreement extends the term of the Agreement from 0000 hours on July 1, 2001, through 2400 hours on the last day of the end of the Purchaser's Billing Month that includes September 30, 2001. This Amendatory Agreement shall be fully a part of the Agreement when executed by the parties and incorporated therein. This Amendatory Agreement shall be attached to the Agreement. 2. PURCHASER LOAD COMMITMENT (a) The Purchaser agrees to purchase from Bonneville amounts of Firm Power, transmission and other products to meet all of its Actual Firm Load net of the Purchaser's Firm Resources described in section 2(b), below, for the remaining term of the Agreement. Such purchases may be made on a Metered Requirements, Actual Computed Requirements, or Planned Computed Requirements basis as determined in accordance with the Agreement. (b) The Purchaser's Firm Resources are: those amounts of Firm Resources, except Columbia Storage Power Exchange Agreement resources, dedicated to serve the Purchaser's 2 Contract No. DE-MS79-81BP90432 Actual Firm Load in the Purchaser's Firm Resources Exhibit approved as of February 15, 1995; (2) any amounts of power the Purchaser is entitled to receive under the Columbia Storage Power Exchange Agreement; (3) any resource which the Purchaser is required by the Public Utility Regulatory Policies Act of 1978 to acquire and the Purchaser elects to apply to serving its Actual Firm Load; and (4) additional resource(s), which the Purchaser may elect to add and which Bonneville agrees may be added under section 12(b)(14) of the Agreement, to its Firm Resources Exhibit, with Assured Energy Capabilities that do not exceed 2 average megawatts (aMW) in Operating Year (OY) 1996-1997, 2 aMW in OY 1997-1998, 2 aMW in OY 1998-1999, 2 aMW in OY 1999-2000, 2 aMW in OY 2000-2001, and 2 aMW during each month of the remaining term of the Agreement in OY 2001-2002. The Purchaser and Bonneville agree that deliveries from resources will be added on October 1, 1996, in OY 1996-1997, and deliveries will not commence until October 1, 1996. Any Firm Resource added pursuant to this section 2(b)(4) that is a contract supplying amounts of firm power to the Purchaser or to Bonneville for the Purchaser's account shall contain delivery provisions providing for delivery as follows: (A) The Purchaser agrees to pay Bonneville an exit fee of $157,000 in one lump sum payment within 30 days of the effective date of this amendment. (B) monthly amounts of energy with a specified maximum demand of 4 megawatts. 3 Contract No. DE-MS79-81BP90432 (c) The Purchaser shall submit to Bonneville the Firm Resources Exhibit for OY 1996-1997 within 30 days of the execution of this Amendatory Agreement. Thereafter, the Purchaser shall submit to Bonneville each January 1, as required by the Agreement, a revision of its Firm Resources Exhibit, reflecting the addition of Firm Resource or Firm Resources to be added pursuant to sections 2(b)(3) and 2(b)(4), above, for the next Operating Year or Operating Years. Notwithstanding section 12(b) of the Agreement, the Purchaser shall not include in any such revised Firm Resources Exhibit any Firm Resources other than those permitted by section 2(b), above. If required, the Purchaser shall also submit an Assured Capability Exhibit as required by the Agreement. (d) For Purchasers who are purchasing on a Metered Requirements basis and have Firm Resources that are contracts with third parties supplying amounts of firm power to Bonneville for the Purchaser's account, the Purchaser agrees that, for the portion of its Actual Firm Load served by such dedicated Firm Resources added under section 2(b)(4), above, Bonneville shall not be obligated to serve such load under this Amendatory Agreement prior to the notice under section 2(f), below. The Purchaser agrees that its supplier shall establish schedules with Bonneville in accordance with the provisions of section 18 of the Agreement. Any power that cannot be assigned to a class of power supplied by Bonneville and that is delivered by Bonneville to the Purchaser's loads due to a failure of the Purchaser's supplier to deliver power to Bonneville or the Purchaser's system for the Purchaser's account to meet its delivery obligation shall be treated as an Unauthorized Increase. Such delivery obligation shall be established no later than the time specified under the provisions of section 18 of the Agreement. (e) During the term of the Agreement, Purchaser shall/shall not be designated to purchase Firm Power on the basis of Computed Requirements. 4 Contract No. DE-MS79-81BP90432 (g) Should the Purchaser wish to receive requirements service from Bonneville prior to the expiration of the Agreement for any portion of Purchaser's load which was served with Firm Resources pursuant to section 2(b)(4), Purchaser must provide Bonneville written notice of such request for requirements service not less than 24 months prior to the requested start of service with an accompanying purchase request for 3 years. Bonneville shall have no obligation to provide requirements service to such load during the 24-month notice period. Provision of requirements service to such loads shall be subject to the availability of Federal resources to serve such loads and terms and conditions of contracts being offered by Bonneville for such requirements service at such time. Once Bonneville has made a contract offer including the price of the service, the Purchaser shall have 30 days to accept such offer or the Purchaser's notice will be extinguished. Notwithstanding anything to the contrary in this Amendatory Agreement, the Purchaser agrees that Bonneville may elect to establish a separate rate or rates for the provision of requirements service to that portion of the Purchaser's loads which was served with Firm Resources pursuant to section 2(b)(4). The parties agree that section 2(f) shall remain as an ongoing obligation after the expiration or termination of the Agreement and of this Amendatory Agreement. 3. PURCHASER CONSERVATION COMMITMENT (a) Purchaser Conservation Plans The Purchaser agrees to: (1) develop a conservation plan to acquire the conservation that is, by the Purchaser's determination, cost effective to the Purchaser and available to it; 5 Contract No. DE-MS79-81BP90432 (2) provide a summary of that plan to Bonneville by December 31, 1996; (3) take all reasonable action necessary to implement the plan; and (4) certify and report annually its conservation achievements to Bonneville. (b) Technical and Financial Assistance At the Purchaser's request, Bonneville will provide Purchaser-specific conservation guidance and technical assistance. Associated charges, if any, will be negotiated by the parties. Bonneville will also offer financial assistance to the Purchaser for conservation projects included in the Purchaser's conservation plan. Such financial assistance will be subject to the availability of Bonneville funds. The Purchaser agrees to repay Bonneville for any such financial assistance on the terms negotiated by the parties. (c) Eligibility for Conservation Incentives The Purchaser will receive a conservation incentive, through a waiver of the 24-month notice provision of section 2(f), above, based on the amount of conservation it achieves during the term of this Amendatory Agreement. Upon notice provided to Bonneville by the Purchaser by February 15 of each year, the Purchaser may obligate Bonneville to provide Priority Firm Power in the next Operating Year, at the applicable prevailing rates for power offered in such years, for service to portions of the Purchaser's retail load that Bonneville would not have been obligated to serve in that Operating Year under the Agreement except for this section 3(c) of this Amendatory Agreement. Such provision of Priority Firm Power may be in an amount up to twice the identified conservation achievements (expressed in aMW) achieved by the Purchaser during the term of this Amendatory Agreement and prior to the most recently completed Operating Year. 6 Contract No. DE-MS79-81BP90432 4. BONNEVILLE COMMITMENT TO PRICE STABILITY (a) The Bonneville wholesale power and transmission rate schedules applicable to the Purchaser, including any charges set forth or referenced therein, which take effect on October 1, 1996 (Initial Rates) shall be incorporated in the Agreement as Exhibit A as if attached hereto. The Initial Rates will be subject to review and final approval by the Federal Energy Regulatory Commission, which may include judicial review and remand to Bonneville (Final Rates). The Final Rates shall be incorporated in the Agreement as Exhibit A as if attached hereto, and shall be substituted for the Initial Rates. The Initial and Final Rates shall be applied to the Firm Power sold by Bonneville and bought by the Purchaser pursuant to the Agreement and this Amendatory Agreement; provided, however, that Firm Power the Purchaser buys from Bonneville for load that could have been served with the additional Firln Resources under section 2(b)(4), above, but which was not so served, shall be purchased at the wholesale power and transmission rates applicable to such sales to the Purchaser in effect at the time of the sale and which rates may be different from the Initial and Final Rates. (b) Notwithstanding the last sentence of section 15(a), the second sentence of section 19(a), and section 8 of the General Contract Provisions of the Agreement, Purchaser shall have no obligation to pay Bonneville wholesale power, transmission, or products and services rates which differ from the rates specified in section 4(a), above, for the products and services being purchased under section 2(a) of this Amendatory Agreement or under the Agreement. (c) Notwithstanding the provisions of sections 8(c), 18, and 32(a) of the General Contract Provisions of the Agreement, Purchaser shall have no obligation to pay any portion of its Bonneville power bill that has been calculated using Bonneville's wholesale power, transmission, and products and services rates which differ from the rates specified in section 4(a), above, for the products 7 Contract No. DE-MS79-81BP90432 and services being purchased under section 2(a) of this Amendatory Agreement or under the Agreement. Should Purchaser receive a Bonneville power bill calculated using Bonneville wholesale power and transmission rate or rates which differ from the rates specified in section 4(a), above, for the products and services being purchased under section 2(a) of this Amendatory Agreement or under the Agreement, Purchaser may notify Bonneville of a dispute in its Bonneville power bill, stating the amount in dispute. In such event, Purchaser shall pay that portion of the Bonneville power bill not in dispute, and may retain the amount of the Bonneville power bill that is in dispute. (d) Upon final resolution of any dispute arising out of this section 4, any payment due from one party to the other party based on a payment of the amounts retained pursuant to section 4(c) shall be paid with interest computed from the due date of the bill until the date payment is made. Interest will be computed using the U.S. Prime Rate for Large Banks as currently reported in the Wall Street Journal. The applicable rate will be the rate reported on the date of final resolution of any dispute arising under this section 4. (e) Any reference in the Agreement to the Priority Firm Power rate shall mean either the Initial Rate or Final Rate, whichever is in effect at the time, for all purposes under this Amendatory Agreement and the Agreement. 5. STRANDED COSTS (a) Nothing included in or omitted from this Amendatory Agreement either creates or extinguishes any rights or obligations, if any, of either party regarding cost recovery subsequent to the termination or expiration of the Agreement, and such rights or obligations, if any, shall be as if this Amendatory Agreement had not been executed. 8 Contract No. DE-MS79-81BP90432 (b) Bonneville agrees not to recover, in any form, stranded costs it believes it may be entitled to from the Purchaser for the remaining term of the Agreement, provided, however, that Purchaser does not agree that Bonneville has the authority to recover such costs. (c) Nothing in this Amendatory Agreement is intended to imply that the Purchaser would or would not have any obligation to pay such stranded costs under any circumstances. 6. DISPUTE RESOLUTION (a) Bonneville and the Purchaser agree that any dispute arising out of sections 2(a), 2(b), and 4 of this Amendatory Agreement may, upon written notice of either party to the other, be resolved by binding arbitration as set forth in this section 6. All other matters or issues in dispute between Bonneville and the Purchaser which may arise under the Agreement shall be resolved consistent with the terms of section 32 of the General Contract Provisions. (b) The procedures for initiating binding arbitration, the selection of arbitrators, the determinations by the arbitrators and the payment of costs shall be as set forth in section 32(b) of the General Contract Provisions. No other provision of section 32 of the General Contract Provisions shall apply to a binding arbitration proceeding pursuant to this section 6. (c) Any final determination by the arbitrators in a binding arbitration proceeding pursuant to this section 6 shall be enforceable by and against the parties in any court of competent jurisdiction. 9 Contract No. DE-MS79-81BP90432 (d) Either party may seek review of an arbitration decision on the grounds of fraud, misrepresentation, misconduct, or for review of an issue arising under the Constitution of the United States. Any such review shall be filed in the Federal court which has jurisdiction for such review. IN WITNESS WHEREOF, the parties hereto have executed this Amendatory Agreement in several counterparts. UNITED STATES OF AMERICA Department of Energy Bonneville Power Administration By /S/ ALBERTO D. PEREZ Account Executive Name (Print/Type) Alberto D. Perez Date June 27, 1996 THE CITY OF ASHLAND, OREGON By /S/ Name (Print / Type) Title Date CATHERINE M. GOLDEN Catherine M. Golden Mayor July 2, 1996 OVIyGuyer MPSI X5816 ~ M:\90432aa7.DOC) 10 Contract No. DE-MS79-81BP90432