Markwest New Mexico, L. L. C.
Second Revised Volume No. 1
Contents / Previous / Main Tariff Index
Effective Date: 08/01/2008, Docket: RP08-409-000, Status: Effective
Original Sheet No. 206 Original Sheet No. 206
FERC GAS TARIFF
SECOND REVISED VOLUME NO. 1
OF
MARKWEST NEW MEXICO, L.L.C.
FILED WITH THE
FEDERAL ENERGY REGULATORY COMMISSION
Communications Concerning This Tariff
Should Be Addressed To:
John C. Mollenkopf
Senior Vice President, Southwest Business Unit
MarkWest Energy Partners, L.P.
Telephone: (303) 925-9246
Facsimile: (303) 290-8769
MARKWEST NEW MEXICO, L.L.C.
1515 Arapahoe Street
Tower 2, Suite 700
Denver, CO 80202-2126
TABLE OF CONTENTS
Second Revised Volume No. 1
Description Sheet No.
PRELIMINARY STATEMENT 4
SYSTEM MAP 5
STATEMENT OF RATES AND CHARGES 6
RATE SCHEDULE FT FIRM TRANSPORTATION SERVICE 10
1. AVAILABILITY 10
2. APPLICABILITY AND CHARACTER OF SERVICE 10
3. RATES AND CHARGES 11
4. DELIVERY POINTS 12
5. NOMINATIONS AND SCHEDULING OF RECEIPTS AND
DELIVERIES 12
6. OVERRUN QUANTITIES AND IMBALANCES 12
7. RESERVATIONS 12
8. GOVERNMENTAL AUTHORIZATIONS 12
9. GENERAL TERMS AND CONDITIONS 13
RATE SCHEDULE IT INTERRUPTIBLE TRANSPORTATION
SERVICE 14
1. AVAILABILITY 14
2. APPLICABILITY AND CHARACTER OF SERVICE 14
3. RATES AND CHARGES 15
4. DELIVERY POINTS 15
TABLE OF CONTENTS
Second Revised Volume No. 1
Description Sheet No.
5. NOMINATION AND SCHEDULING OF RECEIPTS AND
DELIVERIES 16
6. OVERRUN QUANTITIES AND IMBALANCES 16
7. RESERVATIONS 16
8. GOVERNMENTAL AUTHORIZATION 16
GENERAL TERMS AND CONDITIONS 100
1. DEFINITIONS 102
2. QUALITY OF GAS 108
3. MEASUREMENT 109
4. NOMINATIONS 113
5. PRIORITY OF SERVICES AND CURTAILMENT 119
6. SCHEDULING 119
7. ALLOCATION OF DAILY QUANTITIES 120
8. OVERRUN QUANTITIES 121
9. BILLING AND PAYMENT 122
10. CONTROL, OWNERSHIP, AND WARRANTIES 124
11. SEGMENTATION OF CAPACITY 126
12. OPERATIONAL FLOW ORDERS 126
13. NEGOTIATED RATES 128
14. FORCE MAJEURE 129
TABLE OF CONTENTS
Second Revised Volume No. 1
Description Sheet No.
15. MARKETING AFFILIATES 131
16. NOTICES 132
17. NEW FACILITIES POLICY 132
18. FERC ANNUAL CHARGE ADJUSTMENT 133
19. ORDER OF DISCOUNTING 134
20. RELEASE AND ASSIGNMENT OF FIRM TRANSPORTATION
SERVICES 134
21. REQUESTS FOR SERVICE 147
22. RIGHT OF FIRST REFUSAL 152
23. CREDITING OF PENALTIES 154
24. INCORPORATION IN RATE SCHEDULES AND
TRANSPORTATION AGREEMENTS 154
25. NORTH AMERICAN ENERGY STANDARDS BOARD (NAESB)
STANDARDS 155
26. DEFAULTS AND REMEDIES 155
27. CHANGES IN RATES OR GENERAL TERMS AND
CONDITIONS 158
28. ARBITRATION 158
29. MISCELLANEOUS 159
PRELIMINARY STATEMENT
MarkWest New Mexico, L.L.C. ("MarkWest" or "Transporter") is a corporation
formed under the laws of the State of Texas, with its principal place of
business at Houston, Texas. Transporter is a "natural gas company" as defined
by the Natural Gas Act ("NGA"), 15 U.S.C. Sections 717-717w, and is subject to
the jurisdiction of the Federal Energy Regulatory Commission ("Commission").
Transporter owns and operates a natural gas transmission system located in Lea
County, New Mexico, which is used solely to transport natural gas from
interconnections with interstate pipelines to two electric power plants.
Although its facilities are located entirely within the State of New Mexico,
Transporter is engaged in the business of transporting natural gas for
shippers in interstate commerce on a firm and interruptible basis. The
transportation of natural gas in interstate commerce is provided pursuant to a
blanket certificate issued to the Transporter for the activities specified in
Part 284, Subpart G, of the Commission's regulations, as amended from time to
time.
MarkWest will undertake the transportation of natural gas only under written
agreement(s) acceptable to MarkWest upon consideration of existing
commitments, operating conditions, and any other factors deemed pertinent by
MarkWest.
SYSTEM MAP
STATEMENT OF RATES AND CHARGES
All rates are stated in U.S. $
Rate Schedule FT
Recourse Rates:
Maximum Minimum
Reservation
Charge ($ per
MMBtu per month) $1.2870 $0.0000
Commodity Charge
($ per MMBtu) $0.0000 $0.0000
Overrun Rate $0.0423 $0.0000
ACA Charge $0.0019 $0.0019
Negotiated Rates:
The effective maximum negotiated reservation charge for any negotiated rate
transportation agreement is the charge agreed to by the parties, as set forth
on Sheet No. 201.
Rate Schedule IT
Maximum Minimum
Commodity Charge
($ per MMBtu) $0.0420 $0.0000
ACA Charge $0.0019 $0.0019
Sheet Nos. 7 through 9 are reserved for future use.
RATE SCHEDULE FT FIRM TRANSPORTATION SERVICE
1. AVAILABILITY
This FT Rate Schedule is available to any party (hereinafter called
"Shipper") that has requested service under this Rate Schedule, for firm
transportation service under the authority and provisions of Part 284 of
the regulations of the Federal Energy Regulatory Commission, provided
that:
1.1 Transporter determines it has available capacity to render the
firm transportation service.
1.2 Any construction, acquisition, or expansion of facilities
necessary to commence and provide the firm transportation service
has been completed.
1.3 Shipper has executed a Transportation Agreement in the form
contained in this FERC Gas Tariff for service under this Rate
Schedule.
1.4 Shipper has made arrangements acceptable to Transporter for
service on upstream transporters.
1.5 Shipper has satisfied, and continues to satisfy throughout the
term of its Agreement, the creditworthiness criteria in section 21
of the General Terms and Conditions ("GT&C") of this Tariff.
2. APPLICABILITY AND CHARACTER OF SERVICE
2.1 Transportation service hereunder, through all or any portion of
Transporter's system, will be firm, subject to the availability of
capacity, to the provisions of an effective Transportation
Agreement, and to the GT&C.
2.2 On each Day during the term of a Firm Transportation Agreement the
Shipper shall be entitled to request service hereunder subject to
this Rate Schedule and the GT&C. Nominations for service shall be
made pursuant to section 4 of the GT&C. Service hereunder shall
not be subject to the curtailment or interruption except as
provided for herein and in section 5 of the GT&C.
2.3 Transporter may refuse to render service hereunder if and for so
long as Shipper is in default under its Firm Transportation
Agreement or the GT&C.
2.4 Transporter will receive at the Receipt Point(s) for Shipper's
account for transportation hereunder daily quantities of Gas up to
Shipper's Transportation Quantity. Such Transportation Quantity
shall be specified in Shipper's Firm Transportation Agreement.
Transporter will deliver for Shipper's account, at the Delivery
Point(s) listed, MMBtus equivalent to the amount of MMBtus
received by Transporter at the Receipt Point(s).
2.5 Transporter shall not be obligated to add any facilities or to
expand the capacity of its pipeline system in any manner in order
to provide transportation service to Shipper pursuant to this Rate
Schedule.
3. RATES AND CHARGES
3.1 The applicable maximum and minimum Recourse Rates for service
hereunder are set forth in the currently effective Statement of
Rates and Charges of this Tariff, and are incorporated herein by
reference.
3.2 Unless Transporter and Shipper agree in writing to a discounted
rate or a Negotiated Rate for service provided hereunder, the
rates applicable to Shipper for service hereunder shall be the
maximum Recourse Rates as set forth on the effective Statement of
Rates and Charges. In negotiating rates with a Shipper,
Transporter will negotiate rates in a manner that is not unduly
discriminatory and that treats similarly situated shippers alike.
3.3 Effective as of the date of commencement of service, as provided
for in the Firm Transportation Agreement, Transporter shall charge
and Shipper shall pay for Transportation under this Rate Schedule
each Month, or part thereof, if applicable, the sum of the
following:
(a) the applicable Recourse or Negotiated Reservation Charge,
multiplied by Shipper's Transportation Quantity;
(b) the applicable Negotiated or Recourse Commodity Charge,
multiplied by the total quantity actually delivered at the
Delivery Point(s); and
(c) the Annual Charge Adjustment (ACA) set forth in the
Statement of Transportation Rates.
4. DELIVERY POINTS
4.1 The Delivery Point(s) at which Transporter may deliver Gas for
Shipper's account under this Rate Schedule shall be at either
Shipper's Cunningham Station or Shipper's Maddox Station.
5. NOMINATIONS AND SCHEDULING OF RECEIPTS AND DELIVERIES
If Shipper desires transportation of Gas on any Day under this Rate
Schedule, Shipper shall submit a nomination in accordance with section 4
of the GT&C.
6. OVERRUN QUANTITIES AND IMBALANCES
Overrun quantities and imbalances associated with transportation under
this Rate Schedule shall be governed by and resolved pursuant to
sections 4 and 8 of the GT&C.
7. RESERVATIONS
Transporter reserves the right to take such actions as may be required
to preserve the integrity of its system, including maintenance of
service to other firm customers.
8. GOVERNMENTAL AUTHORIZATIONS
Transportation service under this Rate Schedule and effective Firm
Transportation Agreements shall be implemented pursuant to any
applicable self-implementing authorizations or program of the FERC for
which Transporter has filed or in which Transporter has agreed to
participate.
9. GENERAL TERMS AND CONDITIONS
All of the GT&C of Transporter's Tariff are applicable to this Rate
Schedule and service hereunder, and are made a part hereof, to the
extent that such terms and conditions are not in conflict with any
provision herein. In the event of a conflict between the GT&C and the
provisions of this Rate Schedule, the GT&C shall control. In the event
of a conflict between the GT&C and any Firm Transportation Agreement,
the Firm Transportation Agreement shall control.
RATE SCHEDULE IT
INTERRUPTIBLE TRANSPORTATION SERVICE
1. AVAILABILITY
This IT Rate Schedule is available to any party (hereinafter called
"Shipper") that has requested transportation service under this Rate
Schedule, for interruptible transportation service under the authority
and provisions of Part 284 of the regulations of the Federal Energy
Regulatory Commission, provided that:
1.1 Transporter determines it has available capacity to render the
interruptible transportation service.
1.2 Shipper has executed a Transportation Agreement in the form
contained in this FERC Gas Tariff for service under this Rate
Schedule.
1.3 Shipper has made arrangements acceptable to Transporter for
service on upstream transporters.
1.4 Shipper has satisfied, and continues to satisfy throughout the
term of its Agreement, the creditworthiness criteria in section 21
of the General Terms and Conditions ("GT&C") of this Tariff.
2. APPLICABILITY AND CHARACTER OF SERVICE
2.1 Service hereunder will be interruptible, as provided herein, and
pursuant to the Shipper's Transportation Agreement and
Transporter's GT&C, and subject to the availability of capacity
and Transporter's operating conditions and system requirements.
2.2 Transporter may refuse to render service hereunder if and for so
long as Shipper is in default under its Interruptible
Transportation Agreement, or under any Transportation Agreement
with Transporter, or under GT&C.
2.3 Transporter will receive at the Receipt Point(s) for Shipper's
account for transportation hereunder daily quantities of Gas
nominated by Shipper pursuant to its Interruptible Transportation
Agreement and the GT&C. Transporter will deliver for Shipper's
account, at the Delivery Point(s) nominated by Shipper MMBtus
equivalent to the amount of MMBtus received by Transporter at the
Receipt Point(s).
2.4 Transporter shall not be obligated to add any facilities or to
expand the capacity of its pipeline system in any manner in order
to provide transportation service to Shipper pursuant to this Rate
Schedule. Transporter is free to contract at any time with other
parties for new transportation services (whether firm or
interruptible) without liability to Shipper for any resulting
interruption or reduction of transportation service hereunder.
3. RATES AND CHARGES
3.1 The applicable maximum and minimum charges for service hereunder
are set forth in the currently effective Statement of Rates and
Charges of this Tariff and are incorporated herein.
3.2 Unless Transporter and Shipper agree in writing upon a discounted
rate for service provided hereunder, the rate applicable to
Shipper for service hereunder shall be the applicable maximum
interruptible rate as set forth on the effective Statement of
Rates and Charges.
3.3 Effective as of the date of commencement of service, as provided
for in the Interruptible Transportation Agreement, Transporter
shall charge and Shipper shall pay Transporter for transportation
service under this Rate Schedule and Shipper's Transportation
Agreement each Month the applicable rate under the Transportation
Agreement, multiplied by either the total quantity actually
delivered to Shipper at the Delivery Point(s).
4. DELIVERY POINTS
4.1 The Delivery Point(s) at which Transporter may deliver Gas for
Shipper's account under this Rate equivalent to the amount of
MMBtus received by Transporter at the Receipt Point.
5. NOMINATION AND SCHEDULING OF RECEIPTS AND DELIVERIES
If Shipper desires transportation of Gas on any Day under this Rate
Schedule, Shipper shall submit a nomination in accordance with section 4
of the GT&C. If nominations exceed the capacity available for
interruptible transportation service, the available capacity shall be
apportioned, by price from highest to lowest, however a pro rata
apportionment (based on the ratio of the quantity nominated by each
individual Shipper and the total quantity nominated by all Shippers
seeking interruptible transportation service) will be used for Shippers
paying the same rate.
6. OVERRUN QUANTITIES AND IMBALANCES
Overrun quantities and imbalances associated with transportation under
this Rate Schedule shall be governed by and resolved pursuant to
sections 4 and 8 of the GT&C.
7. RESERVATIONS
Transporter reserves the right to take such actions as may be required
to preserve the integrity of its system, including maintenance of
service to firm customers.
8. GOVERNMENTAL AUTHORIZATION
Transportation service under this Rate Schedule and Interruptible
Transportation Agreements shall be implemented pursuant to any
applicable self-implementing authorizations or program of the FERC for
which Transporter has filed or in which Transporter has agreed to
participate.
9 GENERAL TERMS AND CONDITIONS
All of the GT&C of Transporter's Tariff of which this Rate Schedule is a
part are applicable to this Rate Schedule and service hereunder, and are
made a part hereof, to the extent that such terms and conditions are not
contradicted by any provision herein. In the event of a conflict
between the GT&C and the provisions of this Rate Schedule, the GT&C
shall control. In the event of a conflict between the GT&C and any
Interruptible Transportation Agreement, the Interruptible Transportation
Agreement shall control.
Sheet Nos. 17 through 99 are reserved for future use.
GENERAL TERMS AND CONDITIONS
TABLE OF CONTENTS
General Terms and Conditions Sheet No.
1. Definitions 102
2. Quality of Gas 108
3. Measurement 109
4. Nominations 113
5. Priority of Services and Curtailment 119
6. Scheduling 119
7. Allocation of Daily Quantities 120
8. Overrun Quantities 121
9. Billing and Payment 122
10. Control, Ownership, and Warranties 124
11. Segmentation of Capacity 126
12. Operational Flow Orders 126
13. Negotiated Rates 129
14. Force Majeure 129
15. Marketing Affiliates 131
16. Notices 132
17. New Facilities Policy 132
18. FERC Annual Charge Adjustment 133
GENERAL TERMS AND CONDITIONS
TABLE OF CONTENTS
General Terms and Conditions Sheet No.
19. Order of Discounting 134
20. Release and Assignment of Firm Transportation Services 134
21. Requests for Service 147
22. Right of First Refusal 152
23. Crediting of Penalties 154
24. Incorporation in Rate Schedules and Transportation
Services 154
25. North American Energy Standards Board (NAESB) Standards 155
26. Defaults and Remedies 155
27. Changes in Rates or General Terms and Conditions 158
28. Arbitration 158
29. Miscellaneous 159
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
Except where the context expressly states another meaning, the following
terms when used in this Tariff and in any Transportation Agreement or
Rate Schedule incorporating this Tariff, shall be construed to have the
following meanings:
1. "Affiliate", when used to indicate a relationship with a specific
Person, means another Person that directly, or indirectly through
one or more intermediaries or otherwise, controls, is controlled
by, or is under common control with, such specific Person. A
corporation shall be deemed to be an Affiliate of another
corporation if one of them is directly or indirectly controlled by
the other or if each of them is directly or indirectly controlled
by the same Person.
2. "Affiliate Guarantor" means a Shipper's Affiliate that executes a
corporate guarantee satisfactory to Transporter for Shipper's
obligations under a Transportation Agreement.
3. "Authorized Overrun" is defined as a nomination made by a Shipper
that exceeds its applicable Transportation Quantity which is
accepted by Transporter. Authorized Overrun quantities are
subject to an Authorized Overrun Charge as provided for in section
8.1(a).
4. "Available Capacity" is the capacity in Transporter's system that
is not subscribed or scheduled for service under the terms of
Transporter's Rate Schedules.
5. "Btu" shall mean one (1) British Thermal Unit. As set forth in
section 1.16, the reporting basis for Btu shall be 14.73 dry psia
and 60 degrees F.
6. "Business Day" is defined as Monday through Friday, excluding
Federal Banking Holidays for transactions in the U.S., and similar
holidays for transactions occurring in Canada and Mexico.
7. "Central Clock Time" or "CCT" means Central Daylight Time when
Daylight Savings Time is in effect and Central Standard Time
otherwise.
8. "Commodity Charge" means the rate specified in the Statement of
Rates and Charges.
9. "Day" means a twenty-four (24) hour period of time from 9:00 a.m.
to 9:00 a.m. Central Clock Time.
10. "Delivering Pipeline" means a pipeline that interconnects with and
delivers Gas into Transporter's pipeline system.
11. "Dekatherm" or "Dth" means the quantity of heat energy which is
1,000,000 British thermal units (1 MMBtu).
12. "Delivery Point" means either Shipper's Cunningham Station or
Shipper's Maddox Station, where Transporter delivers Gas to
Shipper, or for Shipper's account. The Delivery Point(s) shall be
specified in Shipper's Transportation Agreement.
13. "FERC" or "Commission" means the Federal Energy Regulatory
Commission, or any successors thereto.
14. "Firm Transportation Agreement" means an agreement pursuant to the
Tariff under which Transporter provides firm transportation to a
Shipper.
15. "Force Majeure" has the meaning specified in section 14.1 of these
General Terms and Conditions.
16. "Gas" or "Natural Gas" means methane and such other hydrocarbon
constituents, or a mixture of two or more of them which, in any
case, meets the quality specifications of the Tariff.
17. "Gross Calorific Heating Value" means the quantity of heat
expressed in Btus produced by the complete combustion at constant
pressure of one anhydrous (dry) cubic foot of Gas with air at a
temperature of sixty degrees (60°) Fahrenheit and at a pressure of
14.73 psia, when the products of the combustion are cooled to the
initial temperature of the Gas and air and the water formed by
combustion is condensed to the liquid state.
18. "Imbalance" has the meaning specified in section 8 of the GT&C.
19. "Interruptible Transportation Agreement" means an agreement
pursuant to which Transporter agrees to provide interruptible
transportation service to a Shipper.
20. "Intra-day Nomination" is a nomination submitted after the
nomination deadline whose effective time is as stated in section 4
of the GT&C.
21. "Marketing Affiliate", when used with respect to Transporter,
means a Person or other entity as defined in Part 161 of the
Commission's regulations.
22. "MMBtu", "Dekatherm" or "Dth", means one million (1,000,000) Btu
and shall be the standard unit for purposes of nominations,
scheduling, invoicing, and balancing. Allocated quantities and
imbalances shall be expressed in the same units as nominated
quantities.
23. "Month" means the period from 9:00 a.m. CCT on the first Day of
the calendar month and ending at 9:00 a.m. on CCT on the first Day
of the next succeeding calendar month.
24. "NAESB" means the North American Energy Standards Board.
25. "NAESB Standard" means a standard issued by NAESB and adopted by
the Commission.
26. "Negotiated Rate" means a rate or rate formula for service under
any Rate Schedule contained in this Tariff established pursuant to
Section 13 of these General Terms and Conditions.
27. "Operational Balancing Agreement" or "OBA" is a contract between
parties which specifies the procedures to manage operating
balances at an interconnect.
28. "Operational Flow Order" or "OFO" is an order issued pursuant to
Section 12 of these General Terms and Conditions.
29. "Payment Due Date" means the 25th day of each month. If the
Payment Due Date is not a Business Day, then payment must be
received by Transporter or by the financial institution so
designated by Transporter for payment, on or before the first
Business Day immediately prior to the Payment Due Date.
30. "Person" means a natural person, sole proprietorship, firm, trust,
trustee, executor, administrator or other legal personal
representative, partnership, limited partnership, joint venture,
syndicate, company or corporation with or without share capital,
unincorporated association, regulatory body or agency, government
of governmental agency, authority or entity however designated or
constituted.
31. "Point Operator" has the meaning set forth in Section 4.7 of these
General Terms and Conditions.
32. "Pre-arranged Replacement Shipper" and "PRS" mean the entity
designated by Releasing Shipper prior to the Released Capacity
being posted on the Web Site system in accordance with Section 20.
33. "Prepayment", with respect to requests for capacity or service,
means that amount of money that must be submitted by a Shipper
along with a request for service. Such amount will be credited to
Shipper's invoice for services provided by Transporter, or
forfeited by Shipper if it fails to enter into a Transportation
Agreement with Transporter in accordance with the terms of
Transporter's FERC Gas Tariff. With respect to creditworthiness,
prepayment means the advance payment for transportation services
rendered by Transporter.
34. "Psia" means pounds per square inch absolute.
35. "Psig" means pounds per square inch gauge.
36. "Receipt Point" means a point of interconnection between
Transporter and a Delivering Pipeline.
37. "Recourse Rate" means the maximum rate for service under
Transporter's Rate Schedule under which the Negotiated Rate is
otherwise applicable.
38. "Released Capacity" means capacity reserved under the terms of an
effective FT Transportation Agreement that a Releasing Shipper
seeks to release, on either a permanent or temporary basis.
39. "Releasing Shipper" or "Releasor" means a Shipper who holds or
acquires firm capacity rights and who elects to release all or a
part of such capacity.
40. "Replacement Shipper" means a Shipper who acquires all or part of
the rights to capacity held by a Releasing Shipper under the terms
of an effective FT Transportation Agreement, on either a permanent
or temporary basis.
41. "Reservation Charge" means the reservation charge component of the
rate applicable to firm transportation service as specified in
Transporter's Tariff and the Firm Transportation Agreement between
such Shipper and Transporter.
42. "Scheduled Quantity" is the quantity of Gas a Shipper nominates
for receipt by Transporter at a Receipt Point and for redelivery
by Transporter for Shipper at a Delivery Point, and that
Transporter or Operator schedules for transportation.
43. "Transportation Agreement" means an agreement pursuant to the
Tariff under which Transporter provides transportation or other
contract services to a Shipper.
44. "Shipper" means a Person who executes a Transportation Agreement
with Transporter for transportation service under any Rate
Schedule of Transporter's tariff.
45. "Tariff" means Transporter's FERC Gas Tariff, as amended and
approved from time to time by the Commission.
46. "Transportation" of Gas means the receipt of Gas for Shipper's
account at the Receipt Point(s) and the delivery, for Shipper's
account, of Gas to Transporter at the Delivery Point(s).
47. "Transportation Quantity" or "TQ" means for customers receiving
service pursuant to Rate Schedule FT, the daily quantity of Gas
contracted by a Shipper and for which Shipper has agreed to pay a
Reservation Charge in accordance with the terms and conditions of
Shipper's Firm Transportation Agreement. For shippers receiving
service pursuant to Rate Schedule IT, "Transportation Quantity"
shall mean the quantity of Gas Transporter schedules and confirms
for service on any given Day.
48. "Transporter" means MarkWest New Mexico, L.L.C.
49. "Unauthorized Overrun" means quantities of Gas transported by
Transporter on behalf of a Shipper in excess of Shipper's
Transportation Quantity without Transporter's advance approval.
50. "Web Site" means the site on the internet http://www.markwest.com,
through which electronic communication service is accessible to
Transporter.
51. "Year" means a period of 365 consecutive days, except that any
year which contains the date February 29 shall consist of 366
consecutive days.
2. QUALITY OF GAS
2.1 Gas Quality Specifications: All gas tendered at the Receipt Points
and delivered to the Delivery Points hereunder shall be of
merchantable quality, and shall conform to the quality
specifications and requirements as provided below:
(a) The gas shall be commercially free from objectionable odors,
solid matter, dust, gums and gum-forming constituents, or
any other substance which might interfere with the
merchantability of the gas, or cause injury to or
interference with proper operation of the lines, meters,
regulators, or other appliances through which it flows.
(b) Oxygen - less than or equal to 0.2% by volume.
(c) Hydrogen sulfide - less than or equal to 1/4 grain/Ccf.
(d) Total Sulphur - less than or equal to 20 grains/Ccf.
(e) Carbon Dioxide - less than or equal to 2.0% by volume.
(f) Water - less than or equal to 6 pounds/MMcf.
(g) Heating Value - greater than or equal to 950 Btu/Cubic Foot.
(h) The temperature shall be less than or equal to 120 degrees
Fahrenheit.
If at any time, gas tendered to Transporter at a Receipt Point
fails to conform to the quality specifications, Shipper shall
notify Transporter promptly of such deficiency and follow
notification in writing. If gas delivered to the Delivery
Point(s) fails to conform to the quality specifications, Shipper
shall notify Transporter promptly of such deficiency and follow
notification in writing. In both instances, the deficiency shall
be remedied within a reasonable period of time. Neither
Transporter nor Shipper shall be required to receive gas that
fails to conform to the quality specifications.
3. MEASUREMENT
3.1 Measurement Facilities
Transporter, at its sole cost and expense, shall provide for the
continued operation and maintenance of gas measuring facilities to
be located at the Receipt Points and Delivery Points. Such
facilities shall be constructed and gas volumes shall be measured
by (1) orifice metering tubes at the Delivery Point(s) installed
in compliance with the requirements prescribed in Gas
Measurement/Committee Report No. 3 of the American Gas Association
approved standards measurement, including the appendix thereto,
and any subsequent revision thereof acceptable to Shipper and
Transporter or their designees and (2) ultrasonic meters at the
Receipt Point(s) installed in compliance with the requirements
prescribed in Gas Measurement/Committee Report No. 9 of the
American Gas Association approved standards measurement, including
the appendix thereto, and any subsequent revision thereof
acceptable to Shipper and Transporter or their designees.
3.2 Check Metering Equipment - Shipper shall have the right, at its
sole option and expense, to install and operate check metering
equipment downstream of the Receipt Points and the Delivery
Points.
3.3 Gas Measurement and Equipment - Reading, calibration and
adjustment of each party's meters and related equipment shall be
performed solely by that party. Each party, however, shall
provide the other with seven (7) Days prior written notice of all
reading, calibration and adjustment, and representatives of the
other party may be present for such events.
3.4 Measurement at the Receipt Points - At the Receipt Points,
Transporter will comply with the provisions for gas measurement
set forth in the General Terms and Conditions of the tariffs of
the Delivering Pipelines. Transporter's measurement equipment,
which is operated by the Delivering Pipelines, will be used as the
primary billing meters at the Receipt Points.
3.5 Measurement at the Delivery Points - Each item of equipment shall
be calibrated to provide an accuracy of plus or minus five-tenths
of one percent of full scale.
3.6 Resolving Differences at the Delivery Point(s) - If the testing
and calibration performed at the Delivery Point(s) pursuant to
Section 3.3 show that any item of equipment installed by
Transporter does not conform to the accuracy requirements of
Section 3.5, all previous readings of that item of equipment shall
be corrected to zero error for any period which the equipment was
known to be in error. If this period is not known, the correction
shall be made for a period extending back one-half of the time
elapsed since the last testing and calibration performed pursuant
to Section 3.3. During any period when any item of equipment
installed at the Delivery Point(s) by Transporter is inoperable or
known to be in error, the measurements provided by the
corresponding item of equipment installed by Shipper, if any,
shall be used if determined to be accurate in accordance with
Section 3.5. If neither item of equipment is operable or
accurate, or available in the case of Shipper's equipment, the
specification to be measured shall be determined by the parties
hereto on the basis of the best data available using the first of
the following methods which is feasible:
(a) By correcting the error if the percentage of error is
ascertainable by calibration, test, or mathematical
calculations; or
(b) By comparing deliveries made during the preceding period
under similar delivery conditions when the equipment was
registering accurately.
3.7 Measurement of Moisture
Transporter may install on-line at the Delivery Point(s) the most
accurate and reliable technology currently available at reasonable
cost to continuously monitor the moisture content of the gas being
delivered by Transporter. Moisture content monitoring equipment
installed by Transporter, if any, will have the capacity for an
alarm, which may be installed by Shipper, to inform Shipper
whenever the moisture content of the gas being delivered to
Shipper exceeds the maximum designated by the Tariff
specifications referenced in Section 2.1. If Transporter does not
install moisture monitoring equipment as permitted by this
section, Shipper's moisture monitoring equipment located on-line
at the Delivery Point(s) will be used to determine the moisture
content of gas being delivered by Transporter, if that equipment
has been properly installed and maintained and is registering
correctly. Shipper will promptly notify Transporter if the
moisture content of gas being delivered to Shipper exceeds the
maximum designated by the Tariff specifications referenced in
Section 2.1.
3.8 Measurement of Gross Calorific Heating Value, Carbon Dioxide,
Oxygen, Nitrogen and Hydrogen Sulfide
Transporter's gas chromatograph installed at the Receipt Points
shall be used to measure the gross calorific heating value, carbon
dioxide, oxygen and nitrogen levels in the gas stream. The
standard for calculation of gross calorific heating value,
specific gravity and compressibility of gas mixtures from
compositional analysis shall be Gas Processors Association
Standard No. 2172-84, as amended or supplemented from time to
time. If Shipper accepts delivery of any gas that contains
moisture in excess of the limit for dry gas designated by the
specifications referenced in Section 2.1, as determined in
accordance with Section 3.7, the gross calorific heating value
will be adjusted to reflect the actual water vapor content of the
gas accordingly for billing purposes.
In the event gas is received into Transporter's pipeline system
from an interconnect other than the Receipt Points defined herein,
Shipper may request and, upon such request, Transporter shall be
required to install an automatic sampling device to measure the
hydrogen sulfide levels in the gas. The hydrogen sulfide content
of the gas shall be determined in accordance with the Gas
Processors Association Standard for such determination then in
effect, and if there is no such standard in effect, by a method
generally used and accepted in the industry and agreeable to both
Transporter and Shipper.
3.9 Determination of Total Delivered MMBtu - The total number of
MMBtus delivered shall be determined by multiplying the delivered
gross calorific heating value, as determined in Section 3.8, by
the total volume of gas as determined in Section 3.1. If the
total MMBtu results obtained by use of Transporter's equipment, as
specified in Section 3.1 and 3.8, differ by one percent or more
from the results obtained by use of Shipper's check metering
equipment, then Transporter and Shipper shall each be required to
calibrate its measurement equipment. If such calibrations
indicate that Transporter's measurement equipment is within the
tolerance levels set forth in Section 3.5, then Transporter's
measurement equipment shall continue to be used. If such
calibrations indicate that Transporter's measurement equipment is
not within the tolerance levels set forth in Section 3.5 and that
Shipper's measurement equipment is within the tolerance levels set
forth in Section 3.5, then Shipper's measurement equipment shall
be used. If such calibrations indicate that neither parties'
measurement equipment is within the tolerance levels set forth in
Section 3.5, then the provisions of Section 3.6 shall be followed
to resolve any measurement inaccuracies.
3.10 Delivery Pressure - Transporter will operate its pipeline in a
manner that will allow receipt of the deliveries of gas at maximum
daily quantities, at a delivery pressure of 400 Psig to Shipper's
Cunningham Station and a delivery pressure of 548 Psig to
Shipper's Maddox Station (assuming a receipt pressure of 585 Psig
at the Receipt Point). Additionally, Transporter shall be
obligated to deliver quantities of gas at the Delivery Point(s) on
pressure control or flow control. The pressure on the system of
the Delivery Pipeline(s) will dictate the operating pressures on
Transporter's Pipeline facilities, and neither party is obligated
to install compression.
3.11 Atmospheric Pressure - The atmospheric pressure shall be assumed
to be 12.84 pounds per square inch absolute at the Receipt
Point(s) and Delivery Point(s), regardless of any variation from
the actual barometric pressure.
4. NOMINATIONS
4.1 For service required on any Day under each of Shipper's
Transportation Agreements, Shipper shall provide Transporter or
the Delivering Pipeline's dispatch department with a nomination(s)
providing the Shipper's Receipt Point, contract numbers, the
applicable service, the quantity of Gas to be delivered, the
Delivery Point, and such additional information as Transporter
determines to be necessary.
4.2 General Rules and Timeline - Pursuant to NAESB Standards 1.3.2
(Version 1.7), 1.3.3 (Version 1.7), 1.3.5 (Version 1.7), 1.3.6
(Version 1.7), 1.3.20 (Version 1.7), 1.3.21 (Version 1.7): The
standard nominations timeline shall be as follows:
(a) The Timely Nomination Cycle: 11:30 a.m. for nominations
leaving control of the nominating party; 11:45 a.m. for
receipt of nominations by Transporter; noon to send Quick
Response; 3:30 p.m. for receipt of completed confirmations
by Transporter from upstream and downstream connected
parties; 4:30 p.m. for receipt of scheduled quantities by
Shipper and point operator (Central Clock Time on the day
prior to flow).
(b) The Evening Nomination Cycle: 6:00 p.m. for nominations
leaving control of the nominating party; 6:15 p.m. for
receipt of nominations by Transporter; 6:30 p.m. to send
Quick Response; 9:00 p.m. for receipt of completed
confirmations by Transporter from upstream and downstream
connected parties; 10:00 p.m. for Transporter to provide
scheduled quantities to affected Shippers and point
operators, and to provide scheduled quantities to bumped
parties (notice to bumped parties), (Central Clock Time on
the day prior to flow).
Scheduled quantities resulting from Evening Nomination that
does not cause another Service Requester on Transporter to
receive notice that it is being bumped should be effective
at 9:00 a.m. on Gas day; and when an Evening Nomination
causes another Service Requester on Transporter to receive
notice that it is being bumped, the scheduled quantities
should be effective at 9:00 a.m. on Gas day.
(c) The Intraday 1 Nomination Cycle: 10:00 a.m. for nominations
leaving control of the nominating party; 10:15 a.m. for
receipt of nominations by Transporter; 10:30 a.m. to send
Quick Response; 1:00 p.m. for receipt of completed
confirmations by Transporter from upstream and downstream
connected parties; 2:00 p.m. for Transporter to provide
scheduled quantities to affected Shippers and point
operators, and to provide scheduled quantities to bumped
parties (notice to bumped parties), (Central Clock Time on
the Gas day). Scheduled quantities resulting from Intraday
1 Nominations should be effective at 5:00 p.m. on Gas day.
(d) The Intraday 2 Nomination Cycle: 5:00 p.m. for nominations
leaving control of the nominating party; 5:15 p.m. for
receipt of nominations by Transporter; 5:30 p.m. to send
Quick Response; 8:00 p.m. for receipt of completed
confirmations by Transporter from upstream and downstream
connected parties; 9:00 p.m. for Transporter to provide
scheduled quantities to affected Shippers and point
operators (Central Clock Time on the Gas day). Scheduled
quantities resulting from Intraday 2 Nominations should be
effective at 9:00 p.m. on Gas day. Bumping is not allowed
during the Intraday 2 Nomination Cycle.
In addition to making scheduled quantities information
available by 4:30 p.m., at the end of each day Transporter
shall make available to Shippers information containing
scheduled quantities, including scheduled intra-day
nominations and any other scheduling changes. All
nominations shall include Shipper defined begin dates and
end dates. All nominations excluding Intraday Nominations
shall have rollover options. Specifically, Shippers shall
have the ability to nominate for several days, months, or
years, provided the nomination begin and end dates are
within the term of Shipper's contract. Nominations received
after the nomination deadline shall be scheduled after
nominations received before the nomination deadline.
Receiver of nomination initiates confirmation with the
caveat that the receiver of the confirmation may relieve the
obligation of sender to send. The sending party shall
adhere to nomination, confirmation, and scheduling
deadlines. The party receiving the request has the right to
waiver the deadline.
4.3 Any change in a daily scheduled quantity implemented during the
Day shall only be recognized pro rata to the fraction of the Day
remaining at the time the change is implemented. Changed daily
scheduled quantity shall not exceed an amount equal to
Shipper's Transportation Quantity multiplied by the fraction
of the Day remaining at the time the changes are
implemented, nor less than zero at any point in time.
Transporter shall be under no obligation to accept such
revisions for Shipper nominations made under Transporter's
Interruptible Transportation Service.
4.4 Pursuant to NAESB Standards 1.3.9 (Version 1.6), 1.3.11 (Version
1.6), 1.3.13 (Version 1.6): All nominations, including Intraday
Nominations, shall be based on a daily quantity; thus, an intraday
nominator need not submit an hourly nomination. Intraday
Nominations shall include an effective date and time. The
interconnected parties shall agree on the hourly flows of the
Intraday Nomination, if not otherwise addressed in the
Transportation Agreement or Tariff. Intraday Nominations can be
used to request increases or decreases in total flow, changes to
receipt points, or changes to delivery points of scheduled Gas.
Intraday Nominations do not rollover (i.e., Intraday Nominations
span one day only). Intraday Nominations do not replace the
remainder of a standing nomination. There is no need to
renominate if an Intraday Nomination modifies an existing
nomination.
4.5 Shipper Prioritization of Nominated Quantities - If Shipper elects
to nominate quantities of Gas to be received by Transporter from
one or more upstream parties at the Receipt Point, Shipper shall
provide the priority, method, and extent to which each nominated
receipt quantity from a particular upstream party should be
reduced in the event that, due to Transporter's allocation of
Available Capacity for Transportation services, all nominated
receipts cannot be scheduled.
Shipper prioritization of nominated quantities must be consistent
with the terms of this FERC Gas Tariff and such prioritization
will be honored to the extent that Transporter reasonably
determines such prioritization is operationally feasible.
4.6 Delegation of Nomination Authority to Agent - A Shipper may
delegate to any third party the responsibility for submitting
nominations and receiving confirmations or performing other
administrative duties under any effective agreement, subject to
the following conditions:
(a) Any designation of a third party as agent, or any change in
such designation must be provided in writing to Transporter
at least two (2) Business Days prior to the requested
effective date of the designation.
(b) The written designation must specify any limits on the
authority of the agent, including any time limit for the
designation. Transporter may reject any Shipper's request
to delegate responsibilities if the limitations on the
designation would impose undue administrative burdens on
Transporter.
(c) Transporter will rely on communications from a Shipper's
agent for all nomination purposes, except to the extent the
designation is expressly limited. Communications by
Transporter to such agent will be deemed notice to Shipper.
(d) Any third party may administer multiple Transportation
Agreements as the agent for one or more Shippers, but the
agent must make nominations and otherwise administer and
account separately for each Transportation Agreement.
4.7 Shipper Designated as Point Operator
Transporter's Shipper shall, prior to the effective date of any
Transportation Agreement, be designated and act as Point Operator
for the scheduling and balancing of gas flows at the Receipt
Points to be delivered into the Transporter's pipeline.
Transporter and
Shipper agree that Shipper shall continue to serve as Point
Operator at the Receipt Points for all gas quantities transported
under such Agreement, and that Transporter shall provide all
necessary notices to the Delivering Pipelines to effectuate such
designation. Such designation of Shipper as Point Operator shall
continue in full force and effect throughout the term of such
Agreement, provided that Shipper remains the only Shipper on
Transporter's pipeline. In the event Transporter subsequently
begins transporting gas over the pipeline for other shippers,
subject to any limitations set forth in such Agreement,
Transporter shall take over the responsibilities of Point Operator
at the Receipt Points, but shall coordinate its activities so as
not to impair the nomination and balancing of the existing
Shipper's gas quantities transported under the Agreement with such
Shipper.
4.8 Imbalances - The quantities of gas tendered at the Receipt
Point(s) and the quantities of gas delivered at the Delivery
Point(s) shall remain in continuous balance or as near thereto as
practical. In the event the quantity of gas tendered at the
Receipt Point(s) and the quantity of gas taken at the Delivery
Point(s) are not equal, a condition of imbalance shall exist. If
Transporter or Shipper determines that an imbalance exists, both
Transporter and Shipper shall use diligent efforts to correct the
imbalance as soon as practical. Transporter will net Shipper's
imbalances on a monthly basis across all of Shipper's
Transportation Agreements. Shipper may trade any imbalances
incurred under this Section 4 with other Shippers on Transporter's
system, provided the imbalances to be traded are off-setting.
Trades will be deemed completed upon notification to Transporter.
4.9 Shipper and Transporter will comply with the nomination provisions
set forth in the tariffs of the Delivering Pipelines, as such
procedures may be reasonably revised from time to time to account
for operational changes.
5. PRIORITY OF SERVICES AND CURTAILMENT
5.1 Transporter shall have the right to curtail or discontinue
services, in whole or in part, on all or a portion of its system
at any time for reasons of Force Majeure or when capacity or
operating conditions so require. Transporter shall provide
Shipper such notice of such curtailment as is reasonable under the
circumstances. Routine repair and maintenance is not deemed an
emergency situation or an unexpected loss of capacity and will be
scheduled by Transporter in a manner to avoid, wherever possible,
the disruption of confirmed service.
5.2 If due to any cause whatsoever Transporter is unable on any day to
schedule or deliver the quantities of Gas nominated by Shippers,
service shall be curtailed in the following order:
(a) first, interruptible service provided pursuant to Rate
Schedule IT, curtailed by price from lowest to highest,
except curtailment will be pro rata on nominated quantities
among Shippers paying the same rate, and recognizing that
Shippers paying the maximum rate will be curtailed last;
(b) second, firm service provided pursuant to Rate Schedule FT.
Transporter shall curtail on a pro rata basis on nominated
quantities among all Shippers receiving this service.
6. SCHEDULING
6.1 Transporter shall schedule all transportation quantities in
accordance with the following priorities:
(a) Firm transportation of Natural Gas within Shipper's
Transportation Quantity from a Shipper's primary Receipt
Point(s) and to its primary Delivery Point(s), provided a
Shipper's scheduled quantity shall not exceed its
nomination;
(b) Firm transportation of Natural Gas within the contract path
from a Shipper's Secondary Receipt Point(s) and/or to its
Secondary Delivery Point(s), provided a Shipper's scheduled
quantity shall not exceed its nomination;
(c) Firm transportation of Natural Gas outside the contract path
from a Shipper's Secondary Receipt Point(s) and/or to its
Secondary Delivery Point(s).
(d) Interruptible service by price from highest to lowest,
except scheduling will be pro rata based on nominated
quantities among Shippers paying the same rate.
(e) Transporter shall use service requester provided rankings
when making reductions during the scheduling and curtailment
process when this does not conflict with tariff-based rules.
Pursuant to NAESB Standard 2.3.26 (version 1.7), the time
limitation for disputes of allocations shall be six (6)
months from the date of the initial month-end allocation
with a three (3)-month rebuttal period. This standard shall
not apply in the case of deliberate omission or
misrepresentation or mutual mistake of fact. Parties' other
statutory or contractual rights shall not otherwise be
diminished by this standard.
7. ALLOCATION OF DAILY QUANTITIES
Receipts and deliveries of Gas under more than one contract and/or Rate
Schedule shall be allocated in accordance with any agreement as may
exist between Transporter and the Delivering Pipeline(s). Absent such
agreement, Shipper(s) shall be deemed to have taken receipt or delivery
of Shipper's scheduled quantities sequentially and in the same priority
order as Transportation is scheduled under section 6 of the GT&C. Any
difference between the allocated and scheduled Gas quantities at a
location will result in the allocation of an imbalance equal to that
difference to the Shipper. Such imbalances shall be resolved in
accordance with Section 4.8 of the General Terms and Conditions.
8. OVERRUN QUANTITIES
8.1 Overrun Charge
(a) Authorized Overrun Charge
If Shipper requests Transporter to deliver quantities of Gas
in excess of Shipper's applicable Transportation Quantity,
and Transporter agrees, Shipper shall be subject to an
Overrun Charge in addition to the applicable reservation and
commodity charges and any balancing charges pursuant to this
section, equal to the 100% load factor maximum rate
applicable to the service Shipper receives as specified in
Shipper's Transportation Agreement per each MMBtu of Gas
taken in excess of Shipper's Transportation Quantity.
(b) Unauthorized Overrun Charge
If Shipper exceeds its Transportation Quantity without the
approval of the Transporter, Shipper shall be subject to an
Overrun Charge in addition to the applicable reservation and
commodity charges and any balancing charges pursuant to this
section, equal to $10 per MMBtu for each MMBtu of Gas taken
in excess of Shipper's Transportation Quantity.
8.2 A Shipper must comply with an OFO issued pursuant to Section 12
within the time period set forth therein, unless the Shipper is
able to demonstrate that such compliance is prevented due to a
Force Majeure event as defined in Section 14.1. In all instances,
including Force Majeure, the Shipper shall make a good faith
effort to comply with any such OFO, including seeking waivers of
any contractual limits with third parties or modifications of
operating conditions on third party systems. Shipper shall notify
Transporter immediately if it believes that it is excused from
compliance with the OFO for any reason, and shall provide
Transporter with documentation sufficient to support its basis for
non-compliance.
8.3 If a shipper fails to comply with an OFO, it shall be subject to
(a) a penalty of $25.00 per MMBtu for any volume of gas by which
it deviated from the requirements of the OFO, and (b) any overrun
or other charges that may be applicable under Section 8. A
Shipper shall not incur any charges or penalties if such charges
or penalties would not have been incurred but for Shipper's
compliance with an OFO. A Shipper shall not incur any penalties
if the OFO was necessitated exclusively by Transporter's
negligence or willful misconduct.
8.4 Transporter may waive its right to collect all or any portion of
an OFO penalty assessed against a Shipper, provided that such
waiver is granted in a nondiscriminatory manner.
9. BILLING AND PAYMENT
9.1 Payment Terms
On or before the tenth (10th) Business Day of each Month,
Transporter shall deliver invoices to Shipper for its services in
transporting gas under the applicable Transportation Agreement.
All invoices shall be sent to Shipper by facsimile transmission,
or by other means of transmission acceptable to the Transporter
and Shipper, and all invoices shall be deemed delivered to Shipper
when sent by Transporter in this manner. In addition, Transporter
shall mail to Shipper a confirmation copy of each invoice, but the
date this copy is delivered shall have no effect on the due date
for payment of any invoice for accounting purposes. Invoices
shall be due and payable within fifteen (15) Days of Shipper's
receipt of the original invoice. All past due payments shall bear
interest at one percent above the prime rate per annum announced
by Bank One, Texas N.A. ("Index Bank") as it may vary from time to
time over the period beginning on the Day after the due date in
question and ending on the date payment is sent by Shipper.
Invoices will be supported by adequate backup information to allow
Shipper to review invoice calculations. In the event the
delivered volumes reflected in a Transporter invoice differ from
the volumes indicated by Shipper's check measuring equipment, then
Shipper shall make payment to Transporter using the lower of the
two volume totals, subject to adjustment as described in Section
9.2 below (following calculation of final volumes pursuant to
Section 3.9). All taxes applicable to transportation shall be
shown as a separate line item on each invoice for accounting
purposes. Shipper shall make payment, at Transporter's option,
either by mailing its check via U.S. mail to any address specified
by Transporter, postage prepaid, or by bank transfer of funds to a
bank account to be designated by Transporter.
9.2 Disputed Amounts
If Shipper disputes the amount of any invoice for any reason,
Shipper shall notify Transporter of the dispute within ten (10)
Business Days after receipt of the invoice. If Shipper fails to
notify Transporter of the dispute within ten (10) Business Days,
the disputed invoice shall be paid in full according to the terms
of the Transportation Agreement, but the payment shall be subject
to adjustment upon final resolution of the dispute, with any
refund to bear interest at one percent over the prime rate
announced by The Index Bank as it may vary from time to time over
the period that Transporter has possession of the money. Any
refund due to Shipper under this section shall be due and payable
fifteen (15) Days after the final resolution of the dispute.
If Shipper notifies Transporter of the dispute within ten (10)
Business Days of the receipt of the disputed invoice by Shipper,
and if Shipper and Transporter are unable to resolve the dispute
before the due date of the dispute invoice, Shipper shall pay only
the undisputed portion of the disputed invoice on the due date.
Shipper shall pay the portion of the disputed invoice, if any,
determined to be owing to Transporter within fifteen (15) Days
from the date the dispute is resolved together with interest on
such amount at one percent (1.0%) over the prime rate announced by
the Index Bank as it may vary from time to time, commencing
fifteen (15) Days after the date the invoice is delivered to
Shipper, and continuing until paid.
9.2 Failure of Index Bank
If the Index Bank (or any substitute Index Bank) no longer
announces a prime rate or ceases to exist, Shipper shall designate
a substitute Index Bank by notifying Transporter of the selection
and the designation shall be effective as of the date the original
Index bank ceased announcing a prime rate or ceased existence, as
the case may be. A substitute Index Bank must be a national
banking association that has capital and undivided profits of at
latest $100,000,000.00 and is located in a metropolitan area of
the United States of America that has a population greater than
500,000.
10. CONTROL, OWNERSHIP, AND WARRANTIES
10.1 Control and Possession
Shipper shall be in control and in possession of the gas prior to
such gas being tendered to Transporter at the Receipt Point(s) and
responsible for any damages, losses or injuries caused thereby
until the same shall have been tendered to Transporter at the
Receipt Point(s), except for injuries and damages which shall be
occasioned solely and proximately by the negligent act or omission
of Transporter or its designee. After the gas has been tendered
by Shipper to Transporter, Transporter shall be deemed in
exclusive control and possession of such gas until delivery
thereof at the Delivery Points, and Transporter shall be
responsible for any injuries or damages caused thereby, except
injuries and damages which shall be occasioned solely and
proximately by the negligent act or omission of Shipper or its
designee. After the gas has been tendered by Transporter to
Shipper at the Delivery Point(s), Shipper shall be deemed in
exclusive control and possession of such gas, and Shipper shall be
responsible for any injuries or damages caused thereby, except
injuries and damages which shall be occasioned solely and
proximately by the negligent act or omission of Transporter or its
designee.
10.2 Representation and Warranties Regarding Clear Title
Shipper shall represent and warrant that it has title to all gas
it tenders to Transporter at the Receipt Point(s), free and clear
of any liens and/or adverse claims. Transporter shall represent
and warrant that it shall deliver all gas received from Shipper to
Shipper at the Delivery Point(s) free and clear of any liens or
adverse claims.
10.3 Indemnification for Claims Affecting Title
Shipper and Transporter shall fully indemnify and hold harmless
each other, respective officers, agents, employees and
contractors, from any loss, liability or damages, including costs
and reasonable attorney's fees, suffered as a result of any claim,
action or suit brought by any person arising from any breach by
the indemnifying party of the representations and warranties in a
Transportation Agreement or in Section 10.2 of this Tariff.
10.4 Indemnification for Breach of Other Representations and Warranties
In addition to the indemnification provisions set forth in Section
10.3 above, Shipper and Transporter shall fully indemnify and hold
harmless each other, its officers, agents, employees and
contractors from any loss, liability or damages, including costs
and reasonable attorney's fees, suffered as a result of any claim,
action or suit brought by any person arising from any breach by
the indemnifying party of any other representations and warranties
in a Transportation Agreement or the GT&C of this Tariff.
11. SEGMENTATION OF CAPACITY
Any Shipper receiving firm transportation service may segment, to the
extent operationally feasible, its contract path into two (2) or more
discrete segments for its own use or in connection with a capacity
release pursuant to Section 20 of the GT&C. If Shipper utilizes two (2)
or more discrete pipeline segments, the sum of the quantities of Gas
nominated at all Receipt Points or at all Delivery Points by the Shipper
and, if applicable, the Releasing Shipper may exceed the TQ specified in
the Transportation Agreement so long as the quantities nominated for
transportation in a pipeline segment do not exceed the TQ applicable to
the segment. Shipper may segment its contract path to forwardhaul and
backhaul quantities of Gas to the same Receipt Point or to the same
Delivery Point. In such a segmented transaction, the Shipper may exceed
its TQ at that Receipt Point or Delivery Point and may nominate
quantities of Gas in each segment up to Shipper's TQ assigned to such
segment; provided, however, the quantities nominated to flow in the
opposite direction of the flow of the contract path shall be considered
to be outside the Shipper's contract path. If the Releasing Shipper and
the Replacement Shipper nominate quantities of Gas in segments that
overlap, the quantities shall be scheduled in accordance with the order
set forth in section 6.1 above. If the quantities have equal priority
and the sum of the quantities cannot be scheduled, the quantities shall
be scheduled pro rata unless the Releasing Shipper specifies otherwise
in its release notice.
12. OPERATIONAL FLOW ORDERS
12.1 General - Transporter may issue OFOs to preserve the integrity of
its Pipeline facilities, to ensure adequate operating pressures,
to have adequate supplies in the Pipeline facilities, to assure
adequate Transporter's Use Gas, to maintain firm services, and to
optimize the operation of the system. Transporter may also issue
OFOs on a not unduly discriminatory basis to respond to other
unforeseen circumstances. To the extent possible, Transporter will
Identify discrete Shipper(s) whose action(s) require Transporter
to issue an OFO(s) and Transporter will limit the applicability of
the OFO(s) to such Shipper(s). Notwithstanding the foregoing, if
Transporter is unable to identify discrete Shipper(s) whose
action(s) require issuance of an OFO, any OFO will be applicable
to all Shippers on the affected Pipeline facilities.
12.2 Circumstances Under Which an OFO May be Issued -- Transporter may
issue an OFO in any circumstance which would, in Transporter's
reasonable judgment, impair Transporter's ability to receive or
deliver Quantities of Gas in accordance with its service
obligations including, but not limited to, when:
(a) operating pressures are significantly less than or greater
than normal system operating pressures despite Transporter's
efforts to maintain normal pressures, and a further decline
or increase in operating pressures would impair
Transporter's ability to receive or deliver scheduled
Quantities of Gas;
(b) a Shipper fails to maintain receipts or deliveries as
required in this Tariff;
(c) unscheduled pipeline maintenance and repairs affect
capacity.
12.3 Notices
If Transporter is required to issue an OFO, Transporter will issue
a notice or email the notice to all affected Shippers, with an
explanation of the necessity of such order, the Shipper(s) to
which the order is directed, and the anticipated duration of such
order. To the extent discrete Shipper(s) are not identified in
any notice of an OFO, such order will be applicable to all
Shippers. Transporter will issue or email any notice of an OFO as
far in advance of the effective date/time of the OFO as is
operationally feasible, subject to Transporter's need to protect
the integrity of the pipeline facilities. Transporter will
provide updated information concerning the need for the OFO and
will issue a notice informing Shipper(s) when any OFO in effect
will be canceled.
13. NEGOTIATED RATES
13.1 Notwithstanding anything to the contrary contained in this Tariff,
Transporter and Shipper may negotiate a rate for service under any
Rate Schedule contained in this Tariff. Transporter's maximum
Rate Schedule FT rate as shown on Sheet No. 6, Transporter's
Statement of Rates and Charges ("Recourse Rate") is available for
any Shipper that does not desire to negotiate a rate with
Transporter.
13.2 A Negotiated Rate shall mean a rate for service, which may be less
than, equal to or greater than Transporter's maximum Reservation
Charge, if applicable, or Commodity Charge, as stated on
Transporter's Statement of Rates and Charges for that service,
shall not be less than the minimum rate, may be based on a rate
design other than Straight Fixed Variable ("SFV"), and may include
a minimum quantity. With respect to a Negotiated Rate which, when
calculated on a 100% load factor basis, exceeds Transporter's
maximum allocation of receipts and deliveries pursuant to Section
7, Shippers who have agreed to pay said Negotiated Rate would be
considered to have paid the maximum Recourse Rate. For purposes
of exercising rights to continue service pursuant to Section 22,
the highest rate that a Shipper must match if it desires to retain
all or a portion of its capacity and continue to receive firm
service under the same Rate Schedule beyond the expiration date of
such Firm Transportation Agreement is the maximum rate applicable
to such service.
13.3 On or before the date service commences, Transporter will submit
to the Commission Tariff Sheet No. 201 stating the exact legal
name of the Shipper, the negotiated rate, the rate schedule, the
Receipt Point(s), Delivery Point(s) and TQ. Unless Transporter
executes and files a non-conforming Agreement, such tariff sheet
will contain a statement that the negotiated rate Agreement does
not deviate in any material aspect from the form of Transportation
Agreement in the tariff for the applicable rate schedule.
13.4 Nothing in this Section 13 shall authorize Transporter or Shipper
to negotiate terms and conditions of service.
14. FORCE MAJEURE
14.1 The phrase "Force Majeure", as used in these General Terms and
Conditions, shall mean, without limitation, an act of God,
terrorism, lightening, storm, fire, explosion, accident, unusual
casualty, strike, lockout, labor dispute, civil dispute, civil
disturbance or labor slow down; closure at the time of the Force
Majeure event of all or part of the Shipper electric generating
plant(s) at which gas delivered hereunder was to be utilized
because of imminent danger, industrial disturbance, or labor
trouble; breakdowns or damage to the Shipper electric generating
plant(s) at which gas hereunder was to be utilized because of
imminent danger, industrial disturbance, or labor trouble;
breakdowns or damage to the Shipper electric generating plant(s)
at which gas hereunder was to be utilized at the time of the Force
Majeure event, or breakdown or damage to necessary electrical
transmission equipment (including emergency outages of equipment
or facilities for the purpose of making repairs to avoid breakdown
or damage); freezing of gas lines or gas wells; breakdown or
damage to gas supply facilities or gas transportation facilities;
orders or acts of civil authority which are complied with in good
faith; or any other cause, whether or not of the same class or
kind specifically enumerated above and whether or not foreseen or
foreseeable, which is not reasonably within the control of the
party claiming Force Majeure; provided, however, that an adverse
change to the expected economic benefits or costs associated with
the party's continued performance of its obligations under a
Transportation Agreement shall not constitute an event of Force
Majeure for either Transporter or Shipper. Orders and acts of
civil authority as used herein shall include, without limitation,
used herein shall include, without limitation, any regulation,
direction, order or request (whether valid or invalid) made by any
governmental authority or person acting for a governmental agency,
as well as the act or failure or refusal to act, whether
rightfully or wrongfully done, of any governmental agency,
authority, officer, or court charged with the interpretation,
enforcement, or administration of any applicable law, rule or
regulation, which act or failure or refusal to act effectively
delays issuance of, or denies to either party, any permit,
license, or approval reasonably necessary for the construction,
development, operation, or repair of any facilities necessary or
the performance of the Transportation Agreement.
14.2 Suspension of Obligations
If either Transporter or Shipper is prevented, or is delayed
wholly or in part, from carrying out any of its obligations under
this Tariff or a Transportation Agreement due to Force Majeure or
its effects, and if that party gives the other party written
notice and full particulars of the Force Majeure event as soon as
reasonably practical, the obligations of the party giving the
notice shall be suspended, except as otherwise stated in the
Agreement and except for Shipper's obligation to make payments for
transportation of gas previously delivered to Shipper, to the
extent made necessary during the continuance of Force Majeure or
its effects. The party claiming Force Majeure shall incur no
liability except as set out in this Tariff or a Transportation
Agreement by reason of its failure to perform the obligation so
suspended; provided, however, that the disabling effects of Force
Majeure shall be eliminated by the affected party as soon as and
to the extent reasonably possible. If Force Majeure prevents
Transporter or Shipper from complying with the terms and
conditions of a Transportation Agreement for a period in excess of
three (3) Months in any twelve-Month period, the party not
claiming Force Majeure may terminate such Agreement upon ten (10)
Days prior written notice to the other party; provided, however,
that such termination in the initial term will require a
termination payment by the party claiming Force Majeure.
The requirement that any Force Majeure be remedied as soon as and
to the extent reasonably possible shall not require the settlement
of strikes, lockout, or other labor difficulty by the party
involved, contrary to its reasonable wishes.
15. MARKETING AFFILIATES
15.1 Shared Operating Personnel and Facilities
Information on facilities and operating personnel that Transporter
shares with its Marketing Affiliates will be available on the Web
Site.
15.2 Complaint Resolution
Transporter will attempt to resolve any complaints by Shippers or
potential Shippers without the necessity of a written complaint.
To this end, Shippers are encouraged to attempt to resolve
disputes informally with Transporter. A formal complaint
concerning any services offered by Transporter should be directed,
in writing or via facsimile, to:
MarkWest New Mexico, L.L.C.
Attn: John C Mollenkopf, Senior Vice President
Southwest Business Unit
MarkWest Energy Partners, L.P.
1515 Arapohoe Street
Tower 2, Suite 700
Denver, CO 80202-2126
Telephone: (713) 965-9151
Facsimile: (713) 965-9156
The complaint should state that it constitutes a complaint
pursuant to these tariff provisions, and the complaint should
state with specificity the nature of the complaint, the actions or
procedures of Transporter that gave rise to the complaint, and the
remedy sought by the Shipper. Transporter will respond initially
to the complaint within two (2) Business Days and in writing
within thirty (30) Days.
16. NOTICES
Except as otherwise specifically provided in this Tariff, any notice to
be given by Shipper shall be in writing and shall be sufficient if
personally delivered or sent by mail or facsimile transmission (with
confirmation of receipt) to the following address:
Transporter: 1515 Arapahoe Street
Tower 2, Suite 700
Denver, CO 80202-2126
Fax: (303) 290-8769
Attn: Mr. John C. Mollenkopf
Any notice shall be deemed received on the date delivered if transmitted
via facsimile, telecopied, or personally delivered, or five (5) Days
following deposit in the mail if mailed in the manner set out above.
The designation or address of the party to be notified may be changed at
any time by delivery of written notice of that change to the other
party.
17. NEW FACILITIES POLICY
Transporter is under no obligation to build, acquire and/or install
service lateral pipelines, taps and metering facilities necessary to
provide transportation service to any new or existing Shipper.
Transporter may construct facilities on a non-discriminatory basis,
provided:
17.1 Transporter determines in its sole discretion it has sufficient
unutilized mainline transportation capacity to provide the service
requested by the Shipper without impairing the operational
integrity of its system, or Transporter has obtained certificate
authorizations to expand its mainline capacity by an amount
sufficient to allow Transporter to provide the requested service;
17.2 Transporter has or obtains any certificate authorizations
necessary to build. acquire and/or install the service lateral
pipeline(s), tap(s) and/or meter facilities; and
17.3 Unless otherwise agreed to by Transporter, Shipper agrees to
reimburse or compensate Transporter, on mutually agreeable terms,
for 100% of Transporter's construction, acquisition and/or
installation costs (including any associated tax effects), as
defined below, for facilities required to effect the service
requested by Shipper. Transporter may waive this requirement at
its discretion, on a not unduly discriminatory basis.
For the purposes of this section, Transporter's construction,
acquisition, and/or installation costs shall include, but shall
not be limited to: Transporter's design costs, equipment costs,
labor costs, material costs, supervision costs, construction
financing costs (including a return on equity), taxes (whether
income or otherwise), filing fees, right of way costs and
permitting costs. Nothing in this Section 17 shall require
Transporter to file an application for a certificate of public
convenience and necessity under section 7(c) of the Natural Gas
Act, and nothing in this section shall prevent Transporter from
contesting an application for service filed pursuant to section
7(a) of the Natural Gas Act. Transporter reserves the right to
seek a waiver of the policy set forth herein, for good cause shown
during any proceeding before the Commission instituted under
section 7 of the Natural Gas Act.
18. FERC ANNUAL CHARGE ADJUSTMENT
Transporter shall adjust the rates charged for services as specified
below from time to time to reflect the annual charge, if any, assessed
Transporter by FERC (Annual Charge Adjustment on "ACA") pursuant to
Order No. 472 or any other superseding or related rule or order.
18.1 Services subject to ACA shall include all Transportation services
under Rate Schedules in Transporter's FERC Gas Tariff.
18.2 The effective ACA rates shall be shown on Transporter's effective
Statement of Rates and Charges reflecting the current ACA amount
under this section 18.
(a) The effective date of adjustment for each annual charge rate
adjustment filed pursuant to this section 18 shall be
October 1 of each year. The ACA shall become effective on
the effective date of adjustment without suspension or
refund obligation.
(b) Filing Procedure: At least thirty days prior to the
effective date of adjustment, Transporter shall file with
FERC and post, as defined in Section 154.402 of the
Commission's Regulations, a revised Tariff Sheet showing the
Statement of Rates and Charges in Second Revised Volume No.
1 of Transporter's FERC Gas Tariff, reflecting the current
Annual Charge Adjustment.
18.3 The current Annual Charge Adjustment shall be the unit amount,
adjusted as necessary for heating value and pressure base, which
FERC orders to be effective for the fiscal year commencing on the
effective date of the adjustment.
18.4 Transporter shall retain all revenues collected under this Section
18. Except as provided by this section 18, Transporter shall not
have the right to seek to recover in any proceeding under section
4(e) of the Natural Gas Act any annual charges recorded in its
FERC Account No. 928.
19. ORDER OF DISCOUNTING
To the extent Transporter discounts the rates for service pursuant to
this tariff, the rates for service will be deemed to have been
discounted in the following order: (1) Reservation Charge; (2) Commodity
Charge, but no charges will be discounted below the stated Minimum Rate.
20. RELEASE AND ASSIGNMENT OF FIRM TRANSPORTATION SERVICES
20.1 Capacity Eligible for Release
(a) Shippers under Rate Schedule FT shall be permitted to
release their capacity on a temporary or permanent basis, in
accordance with this Section 20. Capacity which may be
assigned to the Replacement Shipper hereunder shall be
limited to the firm capacity reserved by the Releasing
Shipper, as defined by the Primary Receipt Points and the
Primary Delivery Points contained in the released capacity.
Releases may be made on an interruptible (i.e., subject to
recall) or firm basis and may be billed by Transporter based
on usage.
(b) Transporter shall continue to sell its unsubscribed firm
capacity by providing notice of the availability of such
capacity on the Web Site or by using any other marketing
services at its disposal.
20.2 Shipper Release Notice
(a) A Shipper that desires to release any or all of its firm
capacity under this Section 20 must notify Transporter
electronically on the Web Site of its intent to release
capacity and the terms of the release (hereinafter referred
to as "Shipper Notice"). A Shipper Notice shall be posted
on the Web Site upon receipt by Transporter or such other
time which must comply with the timeline set forth in
Section 20.4(b) herein, as requested by Releasing Shipper.
This Shipper Notice shall include:
(1) Releasing Shipper's contract number;
(2) The specific quantity of capacity to be released;
(3) If the request for release is on a permanent basis;
(4) The Receipt Points and Delivery Points at which
Releasing Shipper will release capacity and the
quantity of capacity to be released at each point;
(5) The period of time or term of the release;
(6) The conditions of Releasing Shipper's right of recall
as well as methods and rights associated with
returning the previously recalled capacity to the
Replacement Shipper, if applicable;
(7) Whether contingent bids will be accepted and when the
contingency must be removed;
(8) The identity of a PRS, if applicable;
(9) The minimum rate, including the tariff reservation
rate and all demand surcharges as a total number or as
stated separately, expressed in dollars and cents or
percentage of maximum Tariff rate, term, and quantity
of capacity Releasing Shipper shall accept, if any,
and whether bids using a volumetric rate for the
collection of Reservation Charges will be accepted and
whether Releasing Shipper requires a volumetric
commitment. The maximum volumetric rate that may be
bid shall not exceed the one hundred percent (100%)
load factor equivalent of the maximum rate, which
reservation rate equals the Authorized Overrun rate
for the applicable service being released as set forth
on the effective rate tariff sheets. Transporter
shall support volumetric releases with volumetric
commitments by fully accounting for volumetric and
reservation components, consistent with the rules and
regulations enunciated by the Commission. The maximum
reservation rate that may be bid shall not exceed the
maximum rate for the applicable service being released
as set forth on the applicable currently effective
tariff sheets.
(b) Releasing Shipper shall post the Shipper Notice on the Web
Site. Offers should be binding until written or electronic
notice of withdrawal is received by Transporter. The
releasing party has the right to withdraw its offer during
the bid period, where unanticipated circumstances justify
and no minimum bid has been made.
(c) When a Releasing Shipper presents a PRS that is on the
approved bidders list, such Replacement Shipper initiates
confirmations of prearranged deals electronically as a
prerequisite to the awarding of the Shipper Notice.
(d) The terms Releasing Shipper imposes may not conflict with
any provision of the Transportation Agreement, Rate Schedule
or General Terms and Conditions. In the event of such
conflict, Transporter may withdraw the Shipper Notice from
posting.
20.3 Exceptions to Bidding
(a) At Shipper's option, a Shipper Notice for a release of
thirty-one (31) days or less with a designated PRS shall not
be subject to the bidding process in accordance with Section
20.4 herein (exempt capacity release). An exempt capacity
release shall not contain an evergreen provision and cannot
be reassigned to the same PRS within twenty-eight (28) Days
from the termination of each release, except in the event
the PRS is bidding the Maximum Rate or is bidding on a
second release under a different Transportation Agreement.
(b) In the event Releasing Shipper presents a PRS that is on the
approved bidders list, and such PRS agrees to pay the
applicable Maximum Rate and agrees to all other conditions
of the release prior to the submission of the Shipper Notice
to Transporter, the released capacity will be assigned to
the PRS and such Shipper Notice shall be exempt from the
bidding process in accordance with Section 20.4 herein. The
PRS will be posted as the winning bidder in accordance with
Section 20.4(i) herein.
(c) Timing of Capacity Releases Exempt from Bidding
For non-biddable releases, the posting of the Shipper Notice
for prearranged deals not subject to bid are due (Central
Time):
(1) Timely Cycle - by 10:30 a.m. on a Business Day
(2) Evening Cycle - by 5:00 p.m. on a Business Day
(3) Intra-day 1 Cycle - by 9:00 a.m. on a Business Day
(4) Intra-day 2 Cycle - by 4:00 p.m. on a Business Day
The capacity release addendum number will be issued within
one hour of the award posting. Nomination is possible
beginning at the next available nomination cycle for the
effective date of the capacity release addendum.
20.4 Bidding Process
(a) In order to submit a valid bid under this capacity release
program, any party, including a PRS, must be on the approved
bidders list. To be on the approved bidders list, a party
must meet the provisions of Section 21 herein and have
executed a capacity release Transportation Agreement with
Transporter in the form as set forth in this Tariff
(Capacity Release Form of Transportation Agreement). A
party shall remain on the approved bidders list until such
party notifies Transporter to the contrary, no longer meets
the credit qualifications in Section 21 herein, or is
suspended from the approved bidders list in the event and
for such time as such party fails to pay part or all of the
amount of any bill for service.
(b) The capacity release timeline in CCT is applicable to all
parties involved in the Capacity Release process; however,
it is only applicable if (1) all information provided by the
parties to the transaction is valid and the acquiring
Shipper has been determined to be creditworthy before the
capacity release bid is tendered; and (2) there are no
special terms or conditions of the release.
(1) For biddable releases (less than one year)
On a Business Day
12:00 p.m.
Time by which Releasing Shipper shall post the Shipper
Notice on the Web Site.
1:00 p.m.
Bidding period ends and evaluation period begins
during which contingency is eliminated, determination
of best bid is made and ties are broken.
2:00 p.m.
Evaluation period ends and award posting if no match
required.
Communication of match or award is due.
2:30 p.m.
Match response is due
3:00 p.m.
Award posting where match is required
(2) For biddable releases (one year or more)
The timeline is the same as biddable releases for less
than one year except that the Releasing Shipper shall
post the Shipper Notice on the Web Site by 12:00 p.m.
CCT four (4) Business Days before award for long-term
release. Open season ends no later than 1:00 p.m.
Central Clock Time on the Business Day before timely
nominations are due (open season is three Business
Days).
(3) Timeline for Releases with Special Conditions
If the Releasing Shipper specifies a bid evaluation
methodology other than highest rate, net revenue or
present value, or a permanent release or any other
special conditions, the above timelines shall apply;
provided, however, one additional Business Day will be
added to the evaluation period. Such extended
evaluation period shall cause Gas flow to be at least
one day later than Gas could flow under the timeline
set forth in Section 20.4(b)(1) or Section 20.4(b)(2).
(c) All bids must be expressed in dollars and cents or percents
of maximum rate, whichever is stated in the Shipper Notice,
include the required bid information and must be received
and posted electronically through the Web Site. Bids shall
be posted on the Web Site with any contingencies identified
and with the bidder's identity deleted.
(d) A bidder may submit only one bid at a time in response to a
Shipper Notice. A bidder may withdraw its bid through the
Web Site at any time prior to the close of the posting
period specified in the Shipper Notice without prejudice to
its submitting another bid with an economic value equal to
or greater than the economic value of the withdrawn bid.
(e) Where there is a PRS and an offer which is better than the
bid submitted by the PRS, Transporter will notify the PRS by
2:00 p.m. CCT on the day capacity is awarded and the PRS
will have until 2:30 p.m. to match the better offer and
obtain the right to the released capacity. In the event the
PRS does not match the better bid, Transporter shall award
the capacity to the party who made the best bid.
(f) Bids shall be binding until written or electronic notice of
withdrawal is received by Transporter. Bids cannot be
withdrawn after the bid period ends.
(g) In the event that a winning bid has an unacceptable
contingency, and Transporter is not notified through the Web
Site that such contingency has been removed within the time
period specified in the Shipper Notice, such contingent bid
will be rejected by Transporter.
(h) The Releasing Shipper may define in the Shipper Notice the
criteria for determining the best bid. If the Releasing
Shipper does not specify the criteria, Transporter shall use
the highest economic value to determine the best bid. If
there are multiple bids meeting the minimum conditions,
Transporter shall award the bids, best bid first, until all
offered capacity is awarded. Transporter will notify,
through the Web Site by 2:00 p.m. CCT following the end of
the posting period, or by 3:00 p.m. CCT if a matching period
is applicable, the PRS or Replacement Shipper that capacity
has been awarded. Transporter shall allow re-releases on
the same terms and basis as the primary release (except as
prohibited by the Commission's regulations).
(i) Transporter will post the winning bids and Replacement
Shippers' identity on the Web Site for at least five
Business Days.
20.5 Rights and Obligations of Releasing Shipper
(a) Regardless of the amount of capacity Releasing Shipper
releases under this Section 20, Releasing Shipper shall
remain liable for the Reservation Charges attributable to
the released capacity unless otherwise agreed to in writing
and in advance by Transporter. In the event of a permanent
release, Transporter may, and will not unreasonably refuse
to, waive liability of Releasing Shipper for the Reservation
Charges.
(b) When capacity is awarded to Replacement Shipper, Releasing
Shipper must adjust or reconfirm its nominations to reflect
the capacity released. Transporter may automatically change
Releasing Shipper's nominations to zero for the
Transportation Agreement under which capacity was released
unless such nominations are adjusted or reconfirmed by the
Releasing Shipper.
(c) If Releasing Shipper releases its TQ for a geographic
portion of the capacity reserved under its Transportation
Agreement, Releasing Shipper may use its full TQ for its
unreleased geographic portion of capacity.
(d) When Releasing Shipper partially releases its capacity under
a Transportation Agreement by releasing capacity between
specific Receipt Points and Delivery Points or by releasing
only a portion of its TQ, Releasing Shipper's Transportation
Agreement shall be deemed to be modified in accordance with
the release and Releasing Shipper may not utilize the
capacity released during the term of the release.
(e) Releasing Shipper shall retain all Rights of First Refusal
with respect to the released capacity, unless such release
is a permanent release.
(f) Releasing Shippers may, to the extent permitted as a
condition of the capacity release, recall released capacity
(scheduled or unscheduled) at the Timely Nomination cycle
and the Evening Nomination cycle, and recall unscheduled
released capacity at the Intra-Day 1 and Intra-Day 2
Nomination cycles by providing notice to Transporter by the
following times for each cycle: 8:00 a.m. CCT for the Timely
Nomination cycle; 5:00 p.m. CCT for the Evening Nomination
cycle; 8:00 a.m. CCT for the Intra-Day 1 Nomination cycle,
and 3:00 p.m. for the Intra-Day 2 Nomination cycle.
Notification to Replacement Shippers provided by Transporter
within one hour of receipt of recall notification.
20.6 Rights and Obligations of Replacement Shipper
(a) Any bid submitted will bind Replacement Shipper or PRS to
the terms of the bid if Transporter selects such bid as the
best bid. If all the information provided by the Releasing
Shipper, the bidder/PRS is valid, the Replacement Shipper is
creditworthy, and there are no special terms and conditions,
Transporter will issue and execute the Addendum to the
Capacity Release Transportation Agreement within one hour of
awarding the winning bid.
(b) The capacity release addendum number will be issued within
one hour of the award posting. Nomination is possible
beginning at the next available nomination cycle for the
effective date of the capacity release addendum; however, in
no event will Gas flow on Replacement Shipper's
Transportation Agreement prior to the effective date of the
release as posted in the Shipper Notice.
(c) Replacement Shipper is responsible for payment of the
applicable Reservation Charge, and any surcharges thereon,
in the amount of its winning bid. Replacement Shipper is
also responsible for all other billings, e.g., commodity
rate and applicable commodity surcharges. In the event of
payment default, subject to Section 26 herein, Transporter
may elect to terminate that Replacement Shipper's Capacity
Release Transportation Agreement which shall terminate all
service thereunder utilized by the Replacement Shipper.
(d) Once Replacement Shipper or PRS is notified of a winning
bid, such Replacement Shipper or PRS shall have all the
rights and obligations specified under the Releasing
Shipper's Rate Schedule, the Releasing Shipper's
Transportation Agreement and the General Terms and
Conditions of this Tariff including the right to release
firm capacity pursuant to this Section unless the conditions
prescribed by the Shipper Notice require otherwise.
Transporter shall allow re-releases on the same terms and
basis as the primary release (except as prohibited by the
Commission's regulations).
(e) Replacement Shipper shall have no Right of First Refusal
with respect to the released capacity, unless such release
is permanent.
20.7 Rights and Obligations of Transporter
(a) Transporter shall determine the best bid based upon the best
bid criteria. Transporter shall have the right, but not the
obligation, to reject, in whole or in part, the terms of any
Shipper Notice or bid which is discriminatory or conflicts
with any order or regulation issued by the FERC, or
provision of the Transportation Agreement, Rate Schedule or
General Terms and Conditions. Such Shipper Notice shall be
rejected in its entirety unless Shipper permits a partial
rejection. Transporter shall provide notification to
Shipper, through the Web Site, of the reason(s) for
rejecting a release notice with the notice of rejection.
(b) Transporter shall not have any liability to any Shipper,
Releasing Shipper, Replacement Shipper, bidder or any other
party as a result of Transporter's performance of its
obligations under its capacity release program, and such
Shippers, Releasing Shippers, Replacement Shippers, and
bidders shall indemnify Transporter from and against any and
all losses, damages, expenses, claims, suits, actions and
proceedings whatsoever threatened, incurred or initiated as
a result of Transporter's performance hereunder, except to
the extent such loss, damage, expense, claim, suit, action
or proceeding is the result of Transporter's gross
negligence, undue discrimination or willful misconduct,
provided that Transporter shall be responsible for direct
damages, if any, resulting from Transporter's own
negligence.
20.8 Term
(a) Any release under this Section 20 shall be for a minimum
term of at least one Gas Day.
(b) Any release under this Section 20 shall be for a maximum
term expiring on the earlier of:
(1) The last date this Tariff provision shall be
effective;
(2) The expiration date of Releasing Shipper's
Transportation Agreement when the release is for the
full term of such agreement; or
(3) The expiration date specified by the Releasing Shipper
in the Shipper Notice.
20.9 Billing Adjustments to Releasing Shipper
(a) Unless otherwise agreed upon by the Releasing Shipper,
Transporter shall credit Releasing Shipper's monthly bill to
reflect the Reservation Charge (including surcharges, if
any) invoiced to Replacement Shipper, provided however, that
Transporter and Releasing Shipper may, in connection with a
Negotiated Rate based on a rate design other than straight
fixed variable, agree upon a payment obligation and
crediting mechanism that varies from or is in addition to
the provisions of this Section 20.9 in order to establish
the basis of accounting for revenues from a Replacement
Shipper as a means of preserving the economic bases of the
Negotiated Rate. In the event of a release with a
volumetric rate, the volumetric rate shall be no greater
than the 100% load factor equivalent of the maximum rate
currently applicable to the service released and shall be
credited to the Releasing Shipper's monthly bill.
Replacement Shipper's payment of the Commodity Charge will
be retained by Transporter.
(b) If Replacement Shipper fails to pay all or any part of the
Reservation Charge so credited within thirty (30) days of
its due date, then such unpaid amount plus interest will be
charged to Releasing Shipper's next monthly bill and will be
due and payable by Releasing Shipper in accordance with
Section 9 herein.
20.10 Offers to Purchase Firm Capacity
Transporter agrees to post on its Web Site, at a party's request,
offers to purchase firm capacity on a permanent or temporary
basis. Each offer will remain on the Web Site for five (5)
Business Days before it is removed, unless the requesting party
notifies Transporter prior to the expiration of any five (5) Day
period that it wishes to extend the posting for an additional five
(5) Business Days.
20.11 Assignment and Delegation.
Except as otherwise provided for in this section, Transporter
shall not assign its rights or delegate any of its duties under a
Transportation Agreement as may exist between Transporter and
Shipper without the prior written consent of Shipper, which
consent shall not be unreasonably withheld, and any attempted
assignment or delegation by Transporter without the prior written
consent of Shipper shall be void; provided, however, that
Transporter may, upon reasonable notice to Shipper, assign its
rights or delegate its duties under such Agreement, in whole or in
part, to any Affiliate of Transporter or any subsequent
purchaser(s) of the Pipeline facilities, including a pipeline
expansion, used for the Tariff or any subsequent purchaser of all
or substantially all of Transporter's assets, without the
necessity of obtaining consent from Shipper. Unless a release is
consented to by Shipper, no assignment by Transporter shall
relieve Transporter of its duties and obligations under such
Agreement, and it shall remain principally liable to Shipper for
the performance thereof. Likewise, prior written consent shall
not be required to employ third parties to perform services
incidental to the performance of any Agreement, but no such
employment shall relieve Transporter of its ultimate
responsibility to perform the Agreement.
Except as provided herein, Shipper shall not assign its rights or
delegate any of its duties under a Transportation Agreement as may
exist between Transporter and Shipper without prior written
consent of Transporter, which consent shall not be unreasonably
withheld, and any attempted assignment or delegation by Shipper
without the prior written consent of Transporter shall be void;
provided, however, that Shipper may, upon reasonable notice to
Transporter as provided in Section 16 above, assign its rights or
delegate its duties under such Agreement, in whole or in part, to
any affiliate of Shipper or any subsequent purchaser(s) of any
electric generating plants served by an Agreement, without the
necessity of obtaining consent from Transporter. Unless a release
is consented to by Transporter, no assignment by Shipper shall
relieve Shipper of its duties and obligations under such
Agreement, and it shall remain principally liable to Transporter
for the performance thereof. Likewise, prior written consent
shall not be required to employ third parties to perform services
incidental to the performance of any Agreement, but no such
employment shall relieve Shipper of its ultimate responsibility to
perform the Agreement.
21. REQUESTS FOR SERVICE
Subject to any conditions set forth in the applicable Rate
Schedules, this section shall govern qualifications for receipt of
service under Rate Schedules FT and IT.
21.1 Information Required from All Shippers
All Shippers requesting service from Transporter must provide the
following information in writing to Transporter at the following
address:
MarkWest New Mexico, L.L.C.
1515 Arapahoe Street
Tower 2, Suite 700
Englewood, CO 80202-2126.
(a) Shipper information
(1) Shipper's legal name in full and DUNS number.
(2) Shipper's mailing address for notices and billing.
(3) Shipper's street address if different from above.
(4) The name(s), telephone number(s) and fax number(s) of
Shipper employees responsible for nominations and/or
dispatching.
(5) The name(s), telephone number(s) and fax number(s) of
Shipper employees responsible for payment of invoices.
(6) The name(s), telephone number(s) and fax number(s) of
Shipper employees responsible for other matters.
(7) Whether the Shipper is affiliated with Transporter.
(b) Type of service requested.
(c) Requested Transportation Quantity, stated in MMBtu per day
(if applicable).
(d) Estimated total quantities of Gas to be received and
transported over the delivery period.
(e) Requested date of commencement of service (if applicable).
(f) Requested term of service (if applicable).
(g) Requested Receipt Point(s) and Delivery Point(s), together
with the name of the entity delivering Gas to Transporter
and the name of the entity to receive Gas from Transporter
(if applicable).
(h) If applicable, a copy of an executed agreement between
Shipper and third party authorizing Shipper to act on behalf
of the third party to secure the service requested. If
Shipper requests service on behalf of a third party, Shipper
shall provide the name, address, telephone number and
primary business of the third party.
(i) No Requests for service will be processed until
Shipper has provided to Transporter a completed
Service Request Form, including information regarding
any specific affiliation with Transporter. All
completed Service Request Forms must be sent by U.S.
Postal Service, by express mail, by courier, or by
facsimile, to:
MarkWest New Mexico, L.L.C.
1515 Arapahoe Street
Tower 2, Suite 700
Denver, CO 80202-2126
Phone: (303) 925-9246
Facsimile: (303) 290-8769
21.2 Allocation of Capacity
To the extent requests for firm service exceed Available Capacity,
capacity will be allocated based on highest bid as established
pursuant to this Section 21, pro rata among equal bids.
21.3 Prepayment
If requesting any firm service, Shipper shall make a prepayment by
wire transfer in an amount equal to the lesser of the reservation
charge for two months service or $10,000. The prepayment, plus the
accrued interest from the date payment is received until the date
service commences, shall be applied to the first month's invoice,
and to the invoices of subsequent month(s), as necessary, until
the amount is fully credited. The accrued interest herein shall be
computed in a manner consistent with Section 154.501(d) of the
Commission's Regulations.
21.4 Creditworthiness
(a) Prior to execution of a Transportation Agreement, providing
for service under any Rate Schedule, a Shipper shall be
required to establish creditworthiness with Transporter.
Transporter shall not be required to: (i) execute a
Transportation Agreement providing for service under the
applicable Rate Schedule on behalf of any Shipper who fails
to meet Transporter's standards for creditworthiness; or
(ii) initiate service to a Shipper who fails to meet
Transporter's standards for creditworthiness; or (iii)
continue transportation service on behalf of any Shipper who
is or has become insolvent or who, at Transporter's request,
fails within a reasonable period to demonstrate
creditworthiness.
(b) For purposes herein, the determination of Shipper's
creditworthiness shall be based upon the level of service
requested by Shipper, Shipper's estimated financial strength
as defined by Dun & Bradstreet and a composite credit
appraisal of at least "3", also as defined by Dun &
Bradstreet. If Shipper is not rated by Dun & Bradstreet,
determination of a Shipper's creditworthiness shall be based
upon a credit rating, as evaluated by Transporter, based
upon the level of service requested by Shipper and financial
analysis criteria and which are generally acceptable in the
natural gas industry. If Transporter determines that
Shipper does not have an acceptable rating set forth above,
Shipper may, at its own expense, obtain a private rating
from Dun & Bradstreet, or, as an alternative, request that
an independent certified public accountant, mutually
acceptable to Shipper and Transporter, prepare an equivalent
evaluation based on the financial analysis criteria and
ratios which are generally acceptable in the natural gas
industry.
(c) If a Shipper otherwise fails to establish creditworthiness
as provided herein, Shipper may still receive service under
the applicable Rate Schedule provided it furnishes and
maintains for the term of the Transportation Agreement: (i)
a written guarantee in a form satisfactory to Transporter
from a third party which is creditworthy as determined
above, (ii) an irrevocable standby letter of credit in an
amount equal to the contract on a 100% load factor basis,
for contracts with a term of twelve (12) months or longer
the amount of the irrevocable standby letter of credit will
not exceed twelve (12) months valuation, and contracts with
a term less than twelve (12) months the irrevocable standby
letter of credit will be the lesser of three (3) months
valuation or the term of the contracts, (iii) a pre-payment
in the amount equal to the contract on a 100% load factor
basis, for contracts with a term of twelve (12) months
valuation, and for contracts with a term less than twelve
(12) months the pre-payment will be the lesser of three (3)
months valuation or the term of the contracts, or (iv) other
security acceptable to Transporter.
(d) To permit Transporter to conduct a creditworthiness review,
a Shipper shall, upon request by Transporter, render to
Transporter: (i) a completed credit application, and (ii)
complete financial statements prepared in accordance with
generally accepted accounting principles or, for non-U.S.-
based Shippers, prepared in accordance with equivalent
principles. Upon requesting transportation service, a
Shipper must submit to Transporter a completed credit
application unless it has previously submitted such to
Transporter within the last twelve (12) months. If a
Shipper elects to provide an irrevocable standby letter of
credit or pre-payment, the completed credit application, and
financial statement requirement is waived by Transporter.
Transporter shall have the right to review a Shipper's
creditworthiness on an ongoing basis and Shipper shall
provide, upon Transporter's request, updated financial
statements periodically in order to determine the continuing
creditworthiness of a Shipper.
(e) Transporter shall also consider the Shipper's past payment
record with Transporter. Specifically, if Shipper is
current with its payments to Transporter, and has not been
delinquent in paying bills to Transporter over the past
twelve (12) months (with good faith billing disputes
excepted), the Shipper shall be deemed to have met the
creditworthiness standard with respect to its existing
transportation and storage contracts with Transporter.
Shipper's past payment record with Transporter and other
pipelines shall also be considered in establishing
creditworthiness requirements for new transportation and
storage contracts on Transporter.
22. RIGHT OF FIRST REFUSAL
22.1 If a Firm Transportation Agreement at the maximum recourse rate
for a term of twelve (12) or more consecutive months of service
contains no automatic extension provision, Shipper shall be
entitled to a right of first refusal ("ROFR") to the renewal of
its Transportation Quantity in accordance with the following
procedures. Transporter shall post the capacity for bidding on
its Web Site no later than 180 days prior to the expiration of
Shipper's Firm Transportation Agreement. The capacity will remain
posted on the Web Site for a minimum of 20 days ("ROFR Bidding
Period"), with such posting containing the following information
with respect to the capacity:
(a) Daily Transportation Quantity;
(b) Receipt and Delivery Points;
(c) Maximum reservation charge;
(d) Any applicable restrictions; and
(e) The last day of the ROFR Bidding Period.
Transporter may require bidders to insure that offers are bona
fide by providing financial assurances satisfactory to
Transporter.
A Shipper's ROFR rights apply only when the Shipper is seeking to
contract for its entire geographic historical Transportation
Quantity, however a Shipper may elect to retain a portion of its
Transportation Quantity subject to ROFR rights, in which case
Transporter's pregranted abandonment authority would apply to the
remainder of the service.
22.2 Upon conclusion of the ROFR Bidding Period, Transporter shall
evaluate the bids in accordance with the procedures set forth in
section 20, provided that the term used for purposes of the
formula will be the lesser of the term proposed by the bidder or
five years; and provided further that any bid rate higher than the
maximum applicable recourse rate shall be deemed to be equal to
the maximum applicable recourse rate. Transporter shall not be
required to accept any bid at less than Transporter's maximum
applicable recourse rate.
22.3 If Transporter receives no bids, or if Transporter receives no
bids at its maximum applicable recourse rate and Transporter
determines not to accept any bids below the maximum applicable
recourse rate, Transporter shall notify Shipper of the bid having
the highest value to Transporter ("Highest Bid"), or that no bids
were received. If Transporter receives a bid at its maximum
applicable recourse rate, or if it accepts any bid below the
maximum applicable recourse rate, Transporter shall, within
five days of the close of the ROFR Bidding Period, inform
Shipper of the offer to purchase capacity solicited pursuant
to section 20 herein that Transporter intends to accept.
Shipper shall have twenty-five (25) days after receiving
notice to notify Transporter as to whether it will match the
Highest Bid in terms of price, quantity and duration. If
the Shipper elects to match the Highest Bid, it must execute
a new Transportation Agreement that contains the terms of
the Highest Bid; provided, however, that Shipper shall not
be required to pay any rate higher than the maximum
applicable recourse rate. If the Shipper fails to match the
offer presented by Transporter, Transporter shall enter into
a Firm Transportation Agreement with the Person submitting
the competing offer.
22.4 If Transporter receives no bids at the maximum applicable recourse
rate and Transporter refuses to accept a lower bid, Transporter
may abandon service to Shipper, unless Shipper agrees to pay the
maximum applicable recourse rate for a period of one year, or if
Transporter and Shipper negotiate the terms and conditions of a
Firm Transportation Agreement extension.
23. CREDITING OF PENALTIES
Penalties Net of Out-of-Pocket Costs - Transporter will flow through to
its Shippers the amount of all out-of-pocket costs incurred and
collected as a direct result of the Shipper conduct that was penalized
pursuant to sections 8.1(b) and 8.3 of the GT&C. Transporter will net
all revenues received pursuant to those sections against the costs
incurred for such revenues. Transporter will credit the net amount to
those Shippers that were not billed pursuant to those sections during
the applicable Month.
24. INCORPORATION IN RATE SCHEDULES AND TRANSPORTATION AGREEMENTS
These General Terms and Conditions are incorporated in and are made a
part of Transporter's Rate Schedules and Transportation Agreements. To
the extent there is any inconsistency between terms in these General
Terms and Conditions and terms in Transporter's Rate Schedules or
Transportation Agreements, these General Terms and Conditions shall
govern.
25. NORTH AMERICAN ENERGY STANDARDS BOARD (NAESB) STANDARDS
Transporter hereby incorporates into this Tariff by reference NAESB
Version 1.7 standards as modified by Recommendation R03035A, 2004 Annual
Plan Item 2 FERC Order 2004, and 2005 Annual Plan Item 8 as required by
the Commission in 18 CFR Part 284.12(a), in accordance with Order Nos.
587, et seq.:
0.1.z1, 0.3.1 through 0.3.10, 1.1.22, 1.2.1 through 1.2.5, 1.2.8 through
1.2.11, 1.2.13 through 1.2.19, 1.3.2(vi), 1.3.3 through 1.3.9, 1.3.11,
1.3.13 through 1.3.77, 1.3.79, 1.4.1 through 1.4.7, 2.1.6, 2.2.1 through
2.2.5, 2.3.1 through 2.3.6, 2.3.8 through 2.3.13, 2.3.15, 2.3.17 through
2.3.23, 2.3.25, 2.3.27, 2.3.28 through 2.3.35, 2.3.42 through 2.3.44,
2.3.48, 2.3.50 through 2.3.64, 2.4.1 through 2.4.16, 3.3.1 through
3.3.14, 3.3.16 through 3.3.26, 3.4.1 through 3.4.4, 4.1.40, 4.2.1
through 4.2.20, 4.3.1 through 4.3.3, 4.3.5, 4.3.7 through 4.3.18,
4.3.20, 4.3.22 through 4.3.62, 4.3.64 through 4.3.76, 4.3.78 through
4.3.92, 5.1.2 through 5.1.4, 5.2.1, 5.2.2, 5.2.3, 5.3.2, 5.3.3, 5.3.7
through 5.3.10, 5.3.12, 5.3.17, 5.3.18, 5.3.20 through 5.3.60, 5.4.1
through 5.4.22.
In addition, Transporter hereby incorporates into this Tariff by
reference the model Operational Balancing Agreement approved by NAESB as
Standards 6.5.2.
26. DEFAULTS AND REMEDIES
26.1 Events of Default - An "Event of Default" shall mean, with respect
to Shipper or Transporter, the occurrence of any of the following:
(a) any representation or warranty made in the Agreement by
Shipper or Transporter that proves to be false or misleading
in any material respect;
(b) the failure of Shipper or Transporter to perform any
covenant set forth in a Transportation Agreement, where such
failure is not excused by Force Majeure and is not cured
within thirty (30) Business Days after written notice
thereof to the other party; or
(c) Shipper or Transporter shall be subject to a Bankruptcy
Event (with "Bankruptcy Event" meaning with respect to
either Shipper or Transporter, that such party (i) is
dissolved (other than pursuant to a consolidation,
amalgamation or merger), (ii) makes an assignment or any
general arrangement for the benefit of creditors, (iii)
institutes or has instituted against it a proceeding seeking
a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency or other law affecting
creditors' rights and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding
or petition (A) results in a judgment or insolvency or
bankruptcy or the entry of an order for its wind-up or
liquidation or (B) is not withdrawn, dismissed or discharged
within thirty (30) Days after the institution or
presentation thereof, (iv) otherwise becomes bankrupt or
insolvent (however evidenced), (v) has a secured party take
possession of all or substantially all of its assets or has
an action or proceeding taken or levied against all or
substantially all of its assets and such secured party
maintains possession, or any such action or proceeding is
not dismissed, in either case within thirty (30) Days
thereafter, or (vi) is unable to pay its debts or admits in
writing its inability generally to pay its debts as they
fall due.)
26.2 Termination by Transporter - Upon the occurrence of an Event of
Default by Shipper under a Transportation Agreement ("Agreement"),
Transporter may terminate the Agreement upon ten (10) additional
Days' prior written notice to Shipper. Except as otherwise
provided in the Agreement, upon termination by Transporter,
Shipper shall pay to Transporter all payments owed to Transporter
for gas that flowed prior to termination. In addition,
Transporter and Shipper may agree to a termination payment to be
paid by Shipper, which shall be equal to the quantity remaining to
be delivered to Shipper under the Transportation Agreement,
multiplied by the Negotiated Rate, if any, under the
Transportation Agreement.
26.3 Termination by Shipper - Upon the occurrence of an Event of
Default by Transporter under a Transportation Agreement
("Agreement"), Shipper may terminate the Agreement upon ten (10)
additional Days' prior written notice to Transporter. Except as
otherwise provided in the Agreement, upon termination by Shipper,
Shipper shall pay to Transporter all payments owed to Transporter
for gas that flowed prior to termination. In addition,
Transporter and Shipper may agree to a termination payment to be
paid by Transporter, which shall be equal to the difference
between the Negotiated Rate, if any, and the next highest rate
that Shipper would be required to pay for equivalent capacity and
service from another transportation service provider, multiplied
by the quantity remaining to be delivered to Shipper under the
Transportation Agreement.
26.4 Accounting Upon Termination - Any termination of a Transportation
Agreement pursuant to the provisions of Sections 26.2 or 26.3 will
be without prejudice to the right of either Transporter or Shipper
to collect any amounts then due to it, to offset amounts owed to
it by the other party from such amounts due to the other party,
and will be without prejudice to the right of Shipper to receive
any Gas that has been delivered to Transporter at the Receipt
Point(s) but which Transporter has not yet redelivered to the
Delivery Point(s), subject, however, to the payment of the
applicable charge set forth in the terminated Transportation
Agreement for such transportation and resolution of any applicable
Gas imbalances, and without waiver of any remedy to which the
party not in default may be entitled as a result of the defaulting
party's default, breach or violation of the terms of the
terminated Transportation Agreement.
26.5 Remedies - In the event of termination by either Transporter or
Shipper under GT&C Sections 26.2 or 26.3, in addition to the
remedies set forth in those Sections, the parties shall have such
other rights and remedies as may exist at law or in equity.
27. CHANGES IN RATES OR GENERAL TERMS AND CONDITIONS
Unless otherwise agreed, Transporter may, from time to time propose and
file with FERC, in accordance with Section 4 of the Natural Gas Act,
changes, amendments, revisions, and modifications to (a) Transporter's
rates and rate schedules, and/or (b) the General Terms and Conditions of
Transporter's tariff, provided, however, that unless they have otherwise
agreed, Shippers shall have the right to intervene in and/or protest any
such changes before FERC (or any successor governmental agency) or other
authorities and to exercise any other rights that Shippers may have with
respect thereto.
28. ARBITRATION
Any controversy arising out of or relating to any Agreement, if not
resolved by the parties, may, by mutual agreement, be submitted to
arbitration under the provisions of the Texas General Arbitration Act,
Tex. Civ. Prac. & Rem. Code Section 171.001, et seq., as it may be
amended from time to time and as modified by any Agreement. When the
parties agree to arbitration, the controversy shall be determined by a
board of three arbitrators to be selected as follows: either party may,
at the time a board of arbitration is desired, notify the other of the
name of any arbitrator of its choosing, and the other party shall,
within ten (10) Days, notify the party desiring arbitration of the name
of its arbitrator. The two arbitrators shall, within ten (10) Days
after the notification of the identity of the second arbitrator, choose
the third arbitrator. If they are unable to agree, the parties shall
make application within two (2) Days to the Senior Judge of the United
States District Court for the Northern District of Texas, who (acting in
an individual and not official capacity) shall appoint the third
arbitrator. All arbitrators appointed pursuant to this Section 28 shall
be third-party individuals qualified by education, knowledge, and
experience to pass on the matters submitted for arbitration and shall
not be employed by nor regularly receive remuneration from either party
other than for arbitration services.
The board so constituted shall meet within ten (10) Days after the
identity of the third arbitrator is determined, at which time the board
shall set a reasonable schedule so that the parties may submit evidence
and argument as they may see fit and be represented by counsel. The
action of a majority of the members of the board shall govern and,
unless otherwise agreed by both parties or otherwise set forth in any
Agreement, their decision shall be rendered within seventy-two (72)
hours from the conclusion of submission of the evidence, shall be in
writing, and shall be final and binding on the parties. Each party
shall pay the expense of the arbitrator selected by it and its own
attorney's fees and costs associated with preparation of its case. All
other costs of the arbitration shall be divided between the parties
according to a method mutually agreed to by them at the outset of the
arbitration proceeding and, failing such agreement, according to the
decision of a majority of the members of the arbitration board, which
shall likewise be final and binding on the parties. Without regard to
any terms of any Agreement which may appear to be in conflict with this
Section 28, neither party shall be entitled to recovery or reimbursement
of costs incurred. Procedures not specified in the Agreement are
established by the provisions of the Texas General Arbitration Act.
29. MISCELLANEOUS
29.1 Audit - Shipper and Transporter shall maintain books and records
relating to their operation and performance under a Transportation
Agreement in order that the provisions of the Agreement can
adequately be administered. Shipper and Transporter shall have
the right, during the term of such Agreement and within a two-Year
period following its expiration, to enter upon the premises of the
other party at reasonable times for the purposes of examining and
auditing all books and records relating directly to performance
under the Agreement. Audits shall be conducted at the sole
expense of the party conducting the audit. Such party shall
furnish the other party a report stating the results of any audit
and the basis of those results. If any such report discloses that
any error has occurred and that, as a result, an overpayment or an
underpayment has been made, and if the other party disagrees with
the report, both parties shall cooperate in an attempt to resolve
any differences regarding the report. If any difference regarding
an audit report is not resolved within thirty (30) Days following
delivery of that report, Shipper and Transporter may, by mutual
agreement, submit the controversy to arbitration, and failing such
agreement, may use any legal means at their disposal to resolve
the dispute. The amount of the underpayment or overpayment, as
the case may be, shall promptly be paid to the party to whom it is
owed by the other party upon final resolution of any difference.
29.2 Governing Laws - Any Transportation Agreement made pursuant to
Transporter's Rates Schedules shall be construed under and in
accordance with the substantive laws of the State of New Mexico,
except any provision of such laws that requires the application of
the laws of another state.
29.3 Government Contract Clauses - To the extent applicable,
Transporter shall be bound by any government contract clauses that
are incorporated into a Transportation Agreement, and any other
clauses which Shipper has notified Transporter are required by
governmental statutes, rules or regulations to be included in a
Transportation Agreement. No Transportation Agreement shall be
interpreted to require Transporter to be bound by the provisions
of any law unless that law itself provides for applicability to
Transporter.
29.4 Cumulative Remedies - Pursuit, by either Transporter or Shipper,
of any remedy available under this Tariff or any Transportation
Agreement as may exist between Transporter and Shipper, shall not
constitute a waiver of any other remedy that may be available. No
waiver of any event of default or other breach of an Agreement
shall be deemed or construed to constitute a waiver of any
subsequent occurrence of the same event of default or breach of
the same provision of the Agreement.
29.5 Limitation on Damages - In all situations arising out of a
Transportation Agreement, Transporter and Shipper shall attempt to
avoid and minimize the damages resulting from the act or omission
of the other party. Notwithstanding anything to the contrary in
the Agreement, no party shall be liable to any other party for any
lost or prospective profits or any special, punitive, exemplary,
consequential, incidental or indirect losses or damages (in tort,
contract or otherwise) under or in respect of the Agreement or
arising from any failure of performance related hereto howsoever
caused.
29.6 Ownership of Pipeline - Unless otherwise agreed, in the event that
Transporter at any time during the term of a Transportation
Agreement desires to sell its pipeline system, Transporter shall
notify Shipper of the full particulars of any bona fide offer
received by Transporter that Transporter is willing to accept.
Shipper shall have an exclusive first option to purchase the
system by providing to Transporter, within thirty (30) Days after
receipt of the notice from Transporter, a written offer to
purchase the system on the same terms or terms more favorable to
Transporter. These rights to purchase shall not extend to the
sale, transfer or other disposition of all or substantially all of
Transporter's assets, or to a sale or disposition to another party
being a wholly-owned subsidiary or entity holding more than fifty-
percent (50%) of the stock of Transporter, or by merger, or by way
of pledge or hypothecation for purposes of obtaining financing.
29.7 Calculations - The end results of all calculations under a
Transportation Agreement shall be rounded to three (3) decimal
places.
29.8 Entire Agreement - The Transportation Agreement, Rate Schedules,
and the General Terms and Conditions contain the entire agreement
of Transporter and Shipper with respect to the matters contained
therein. No other agreement, statement, or promise made by any
party, or by any employee, officer, or agent of any party, which
is not contained in such materials shall be binding or valid.
Provisions of the Agreement shall be construed as a whole
according to their common meaning, and not strictly for or against
either Transporter or Shipper. No amendment or modification of
the Agreement shall be effective unless in writing and signed by
both Transporter and Shipper.
29.9 Modification - No modification of the terms and provisions of a
Transportation Agreement shall be made except by the execution of
written contracts.
29.10 Non-waiver and Future Default - No waiver by either Transporter or
Shipper of anyone or more defaults by the other in the performance
of any provisions of any Transportation Agreement shall operate or
be construed as a waiver of any future default or defaults,
whether of a like or of a different character.
29.11 Schedules and Contract Subject to Regulation - This Tariff shall
be subject to all present and future applicable laws, orders,
rules and regulations of any duly constituted governmental
authority, whether federal, state, or local, having jurisdiction
over Transporter and Shipper, their facilities, or any provision
of this Tariff including, without limitation, all applicable
Federal Energy Regulatory Commission rules and regulations. The
Transportation Agreement shall be subject to all present and
future applicable laws, orders, rules and regulations of any duly
constituted governmental authority, whether federal, state, or
local, having jurisdiction over the parties to the Agreement,
their facilities, or any provision of the Agreement including,
without limitation, all applicable Federal Energy Regulatory
Commission rules and regulations.
29.12 Survival - The provisions of any Transportation Agreement shall
survive the termination of that Transportation Agreement for so
long as is necessary to complete all business transactions
outstanding between the parties related to the Transportation
Agreement, but in no event beyond two (2) Years after its
termination.
Sheet Nos. 163 through 199 are reserved for future use.
SHIPPER INQUIRY FORM
Name of inquirer:
________________________________________________________________________
Identification of contract under question:
________________________________________________________________________
Designation of time period involved:
________________________________________________________________________
Nature of inquiry or complaint:
________________________________________________________________________
________________________________________________________________________
Signature:______________________________________________________________
Title:__________________________________________________________________
REFERENCE TO CUSTOMERS HAVING NEGOTIATED RATE AGREEMENT OR NON-CONFORMING TRANSPORTATION AGREEMENTS PURSUANT TO
SECTION 154.112(B) OF THE COMMISSION'S REGULATIONS:
Negotiated TQ Signed
Rate Reservation In Receipt Delivery Effective Docket
Shipper Schedule Rate MMBtu Point(s) Point(s) Date No.
Southwestern
Public 276,000 TWPL Maddox
Service MMBtu/ NN Cunningham
Company FT 1/ day EPNG Lea Power 2/ RP08-368
3/
Notes:
1/ The negotiated rate consists of a single demand charge of $100,484.00 per month. Shipper shall reimburse
Transporter for any gross receipts taxes imposed or levied by the state or county and other taxes related to the
transportation of gas. Shipper shall not be liable for any other charges including, but not limited to, the annual
charges assessed Transporter by FERC pursuant to Order No. 472 or any other superseding or related rule or order. Any
tax imposed on Transporter's facilities or accruing to Transporter as a result of the ownership and operation of same
shall be paid by Transporter.
2/ The negotiated rate agreement was executed on June 28, 2007, and became effective as of July 1, 2007. The
negotiated rate summarized in note 1 became effective as of June 1, 2008.
3/ The agreement is a non-conforming service agreement and was filed at FERC on May 2, 2008.
[Applicable to the following Rate Schedules: FT, IT, Capacity Release.]
GAS TRANSPORTATION AGREEMENT
THIS GAS TRANSPORTATION AGREEMENT (the "Agreement) is effective
_________ ("Effective Date"), and is made and entered into this ________
day of ______________, 20_____, by and between
_________________________________ ("Transporter") and
_________________________________ ("Shipper").
WITNESSETH:
WHEREAS, Transporter owns and operates a pipeline system;
WHEREAS, Shipper desires to purchase _______ transportation
service from Transporter, have Transporter take receipt of Shipper's gas
and delivery Shipper's gas to ____________________________.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements herein contained, Transporter and Shipper agree
as follows:
ARTICLE I
SERVICE TO BE RENDERED
1.1 Transporter shall perform and Shipper shall receive
transportation service in accordance with the provisions of
Transporter's effective Rate Schedule _____________ and the
applicable General Terms and Conditions ("GT&C") of
Transporter's FERC Gas Tariff, Volume No. 1 (Tariff), on
file with the Federal Energy Regulatory Commission (FERC),
as the same may be amended or superseded from time to time
in accordance with the rules and regulations of the FERC.
The maximum obligation of Transporter to deliver gas
hereunder to or for Shipper, and the designation of the
Delivery Point(s) at which Transporter shall deliver or
cause gas to be delivered to or for Shipper, are specified
in Exhibit "A," attached to and made a part hereof by this
reference, as the same may be amended from time to time by
agreement between Shipper and Transporter, or as required by
the rules and regulations of the FERC.
ARTICLE II
TERM OF AGREEMENT
2.1 Service under this Agreement shall commence as of
______________________ and shall continue in full force and
effect until ________________(the "Primary Term").
Thereafter, this Agreement shall continue on a year to year
basis unless, at least one hundred eighty (180) days prior
to the end of the Primary Term, or of any contract year
thereafter, either party gives written notice to the other
of its intent to terminate this Agreement at the end of the
Primary Term or subsequent contract year. Termination shall
not relieve Shipper of any obligations, including without
limitation payment and indemnity obligations, arising or
accruing hereunder prior to the date of termination.
2.2 Shipper and Transporter agree to avail themselves of the
FERC's pre-granted abandonment authority upon termination of
this Agreement, subject to any right of first refusal
Shipper may have under the FERC's rules and regulations and
Transporter's Tariff.
ARTICLE III
RATES AND CHARGES, RATE SCHEDULE AND GENERAL TERMS AND CONDITIONS
3.1 Shipper agrees to and will pay Transporter all applicable
maximum rates and charges provided for in Rate Schedule ___
and the GT&C, as effective from time to time, for service
under this Service Agreement, unless service is rendered
hereunder at discounted rates, or negotiated rates under
Section 13 of the GT&C, in which event the rates and charges
that Shipper shall pay Transporter are those agreed to and
set forth in Article VIII of this Agreement.
3.2 All of the GT&C and provisions of Rate Schedule _____ shall
be applicable to service hereunder and shall be made a part
hereof.
3.3 Unless otherwise agreed, Shipper agrees that Transporter
shall have the unilateral right to file with the appropriate
regulatory authority and make changes effective in: (i) the
rates and charges applicable to Transporter's Rate Schedule
___; (ii) the terms and conditions of service pursuant to
which service hereunder is rendered; and/or (iii) any
provision of the GT&C applicable to service hereunder.
Transporter agrees that Shipper may protest or contest any
such filings or may seek authorization from duly constituted
regulatory authorities for such adjustments of Transporter's
Tariff as may be necessary to ensure that the provisions in
(i), (ii), or (iii) above are consistent with regulatory law
and policy.
ARTICLE IV
RESERVATIONS
Transporter shall have the right to take actions as may be
required to preserve the integrity of Transporter's pipeline facilities,
including maintenance that may affect Shippers firm transportation.
ARTICLE V
GOVERNMENTAL AUTHORIZATIONS
It is hereby agreed that transportation service under this
Agreement shall be implemented pursuant to applicable authorizations of
the FERC.
ARTICLE VI
NOTICES
Notices shall be provided in accordance with the GT&C, to
Transporter and Shipper, respectively, at the addresses set forth below:
(a) Transporter
MarkWest New Mexico, L.L.C.
1515 Arapahoe Street
Tower 2, Suite 700
Denver, CO 80202-2126
Attention:__________________________________________________
(b) Shipper
____________________________________________________________
Attention:__________________________________________________
ARTICLE VII
INTERPRETATION
The parties hereto agree that the interpretation and performance
of this Agreement must be in accordance with the laws of the state of
New Mexico without recourse to the law governing conflict of laws which
would require the application of the laws of another state.
ARTICLE VIII
FURTHER AGREEMENT
[If none, so state] [Particulars of any agreement pursuant to
Section 13 of the GT&C to be included here]
ARTICLE IX
CANCELLATION OF PRIOR CONTRACT(S)
This Agreement supersedes and cancels, as of the effective date of
this Agreement, the agreement(s) between the parties hereto as described
below: [If none, so state.]
No modification of the terms and provisions of this Service
Agreement shall be or become effective except by the execution of a
written instrument by Transporter and Shipper.
IN WITNESS WHEREOF, the parties hereto have caused this Service
Agreement to be executed by their respective duly authorized officers or
other authorized persons, the day and year first above written.
MARKWEST NEW MEXICO, L.L.C.
By:______________________________________
Printed Name:____________________________
Title:___________________________________
Executed:___________________, ___________
(Date)
(SHIPPER) [NAME OF SHIPPER]
By:______________________________________
Printed Name:____________________________
Title:___________________________________
Executed:___________________, ___________
(Date)
EXHIBIT "A"
BY AND BETWEEN
____________________________
AND
MARKWEST NEW MEXICO, L.L.C.
EFFECTIVE_____________________________
Attached to and made a part of Gas Transportation Agreement dated
_____________ by and between MarkWest New Mexico, L.L.C. ("Transporter") and
_____________________ ("Shipper").
Receipt Point(s):_______________________________________________________
Delivery Point(s): __________________________________________
Transportation Quantity: ___________________________________MMBtu/d