Current through Register Vol. 35, No. 18, September 24, 2024
This agreement is made as of the_____ day of _____, 20____,
by and between _________ ("customer") and____________ ("utility") also referred
to collectively as "parties" and singularly as "party." Customer receives
electric service from utility at __________________ (location/address) under
account __________________. Customer has located at these premises a qualifying
facility ("QF") as defined by 17.9.570 NMAC, having an installed capacity of
greater than 10 kilowatts and up to and including 10 megawatts, which is
interconnected to utility pursuant to an interconnection agreement, attached as
exhibit A. For good and valuable consideration, customer desires to sell or
provide electricity to utility from the QF and utility desires to purchase or
accept all the energy produced by the QF that is not consumed by customer, and
the parties agree to the following terms and conditions:
A.
DEFINITIONS. Whenever used
in the agreement, the following words and phrases shall have the
following meanings:
(1)
agreement
shall mean this agreement and all schedules, tariffs, attachments, exhibits,
and appendices attached hereto and incorporated herein by reference;
(2)
interconnection facilities
shall mean all machinery, equipment, and fixtures required to be installed
solely to interconnect and deliver power from the QF to the utility's system,
including, but not limited to, connection, transformation, switching, metering,
relaying, line and safety equipment and shall include all necessary additions
to, and reinforcements of, the utility's system;
(3)
prudent electrical practices
shall mean those practices, methods and equipment, as changed from time to
time, that are commonly used in prudent electrical engineering and operations
to operate electric equipment lawfully, and with safety, dependability,
efficiency and economy;
(4)
qualifying facility (QF) means a cogeneration facility or a small
power production facility which meets the criteria for qualification contained
in
18 C.F.R. Section
292.203;
(5)
point of delivery means the
geographical and physical location described on exhibit B hereto; such exhibit
depicts the location of the QF's side of interconnection facilities where
customer is to (sell and) deliver electric energy pursuant to this agreement or
pursuant to a separate wheeling agreement;
(6)
termination means
termination of this agreement and the rights and obligations of the parties
under this agreement, except as otherwise provided for in this
agreement;
(7)
suspension means suspension of the obligation of the utility to
interconnect with and purchase electricity from the customer.
B.
TERM OF AGREEMENT.
The original term of this agreement shall be for a period offive years from the
date of the execution of this agreement and shall continue thereafter from year
to year until terminated as herein provided.
(1) Termination by customer. Termination of
this agreement during and after the original term requires written notice to
utility that this agreement will terminate in 90 days. Customer may terminate
this agreement without showing good cause.
(2) Termination by utility. Termination of
this agreement during and after the original term requires written notice to
customer that this agreement will terminate in 90 days, unless otherwise
provided. utility, in the exercise of this right, must show good cause for the
termination.
(3) At any time the QF
is sold, leased, assigned, or otherwise transferred, the seller or lessor of
the QF shall notify utility and this agreement may be terminated at utility's
option, for good cause, regardless of whether such transfer occurs during the
original term or any renewal thereof. Such termination may be made with five
days written notice by utility.
(4)
Should the customer default in the performance of any of the customer's
obligations hereunder, utility may suspend interconnection, purchases, or both
and if the default continues for more than 90 days after written notice by
utility to customer, utility may terminate this agreement. Termination or
suspension shall not affect the obligation of utility to pay for energy already
delivered or of customer to reimburse interconnection costs, or any cost then
accrued. Upon termination, all amounts owed to the utility will become payable
immediately.
C.
METER INSTALLATION, TESTING AND ACCESS TO PREMISES. Customer will
be metered by a meter or meters as determined by utility to which utility is
granted reasonable access.
(1) Customer shall
supply, at its own expense, a suitable location for all meters and associated
equipment. Customer shall provide a clearly understandable sketch or one-line
diagram showing the qualifying facility, the interconnection equipment, breaker
panel(s), disconnect switches and metering, to be attached to this agreement.
Such location must conform to utility's meter location policy. The following
metering options will be offered by utility: _________________. Customer shall
provide and install a meter socket and any related interconnection equipment
per utility's requirements.
(2)
Customer shall deliver the as-available energy to utility at utility's
meter.
(3) Utility shall furnish
and install a standard kilowatt-hour meter. Utility may install, at its option
and expense, magnetic tape recorders in order to obtain load research
information. Utility may meter the customer's usage using two meters for
measurement of energy flows in each direction at the point of
delivery.
(4) If either utility or
customer requests an alternate form of metering or additional metering that is
not required to accomplish net metering or is for the convenience of the party,
the party requesting the change in metering shall pay for the alternate or
additional metering arrangement. If customer elects to take electric service
under any rate structure, including time-of-use, that requires the use of
metering apparatus or a metering arrangement that is more costly than would
otherwise be necessary absent the requirement for net metering, customer shall
be required to pay the additional incremental cost of the required metering
equipment. Within 10 days of receiving notification from customer of the intent
to interconnect, utility will notify the customer of any metering costs.
Charges for special metering costs shall be paid by customer, or arrangements
for payment agreed to between customer and utility, prior to utility
authorizing interconnected operation.
(5) All meter standards and testing shall be
in compliance with utility's rules and regulations as approved by the NMPRC.
The metering configuration shall be one of utility's standard metering
configurations as set out in Subsection D of 17.9.570.15 NMAC and mutually
agreeable to the parties or any other metering configuration mutually agreeable
to the parties. The agreed upon configuration is shown on exhibit B. (Service
by the distribution cooperative to customer shall be in accordance with the
distribution cooperative's articles, bylaws and regulations and in accordance
with its tariffs filed with the NMPRC, the terms and conditions of which shall
be unaffected by this agreement). If the interconnection facilities have been
modified pursuant to the interconnection agreement, customer shall permit
utility, at any time, to install or modify any equipment, facility or apparatus
necessary to protect the safety of its employees or to assure the accuracy of
its metering equipment, the cost of which shall be borne by customer. Utility
shall have the right to disconnect the QF if it has been modified without
utility's authorization.
(6)
Utility may enter customer's premises to inspect at all reasonable hours
customer's protective devices and read or test meter; and pursuant to the
interconnection agreement to disconnect, without notice, the interconnection
facilities if utility reasonably believes a hazardous condition exists and such
immediate action is necessary to protect persons, or utility's facilities, or
property of others from damage or interference caused by customer's facilities,
or lack of properly operating protective devices.
D.
ENERGY PURCHASE PRICE AND METERING
OPTION. All electric energy delivered and service rendered hereunder
shall be delivered and rendered in accordance with the applicable rate
schedules and tariffs. Customer has selected the __________ metering option
defined in this section. It is understood and agreed, however, that said rates
are expressly subject to change by any regulatory body having jurisdiction over
the subject matter of this agreement. If a new rate schedule or tariff is
approved by the proper regulatory body, the new rate schedule or tariff shall
be applicable to this agreement upon the effective date of such rate schedule
or tariff.
(1) Load displacement option:
Utility will interconnect with the customer using a single meter which will be
ratcheted and would only measure the flow of energy to the customer. Billing to
customer will be at utility's approved tariff rate applicable to the service
provided to the QF. There will be no additional customer charge and no payment
by utility for any excess power which might be generated by the QF.
(2) Net metering option.
(a) Utility shall install the metering
necessary to determine the net energy delivered from customer to utility or the
net energy delivered from utility to customer for each time-of-use or single
rate period, as applicable, during a billing period. The net energy delivered
to either the QF or to the utility is the difference between the energy
produced by the QF generation and the energy that would have otherwise been
supplied by the utility to the QF absent the QF generation.
(b) The net energy delivered from customer to
utility shall be purchased by utility at utility's applicable time-of-use or
single period energy rate, as described in Subsection B of
17.9.570.11
NMAC, and filed with the NMPRC. Customer shall be billed for all net energy
delivered from utility in accordance with the tariff that is applicable to
customer absent the QF generation. An additional customer charge to cover the
added costs of billing and administration may be included in the tariff. At the
end of the billing period, utility shall net all charges owed to utility by
customer and all payments owed by utility to customer. If a net amount is owed
to customer for the billing period, and is less than $50, the payment amount
may be carried over to the following billing period. If a net amount is owed to
customer and is $50 or more, utility shall make payment to customer prior to
the end of the next billing period.
(c) If provision of the net metering option
requires metering equipment and related facilities that are more costly than
would otherwise be necessary absent the requirement for net metering, customer
shall pay all incremental costs associated with installing the more costly
metering equipment and facilities.
(3) Simultaneous buy/sell option.
(a) Utility will install the metering
necessary to determine separately 1) all of the energy produced by customer's
generator and 2) all of the power consumed by customer's loads. Utility will
purchase all energy produced at utility's applicable time-of-use or single
period energy rate, as described in Subsection B of
17.9.570.11
NMAC, for such purchases, and as filed with and approved by the NMPRC. Customer
shall purchase all power consumed at its normally applicable tariff rate. An
additional customer charge to cover the added costs of billing and
administration may be included.
(b)
If provision of the simultaneous buy/sell option requires metering equipment
and related facilities that are more costly than would otherwise be necessary
absent the requirement for simultaneous buy/sell metering, customer shall pay
all incremental costs associated with installing the more costly metering
equipment and facilities.
E.
INTERRUPTION OR REDUCTION OF
DELIVERIES.
(1) Utility shall not be
obligated to accept or pay for and may require customer to interrupt or reduce
deliveries of available energy under the following circumstances:
(a) it is necessary in order to construct,
install, maintain, repair, replace, remove, investigate, or inspect any of its
equipment or part of its system or if it reasonably determines that
curtailment, interruption, or reduction is necessary because of emergencies,
forced outages, force majeure, or compliance with prudent electrical practices;
whenever possible, utility shall give customer reasonable notice of the
possibility that interruption or reduction of deliveries may be
required;
(b) there is evidence
that customer's QF is interfering with service to other customers or
interfering with the operation of utility's equipment; customer may be
reconnected by utility when customer makes the necessary changes to comply with
the standards required by this agreement;
(c) it is necessary to assure safety of
utility's personnel; notwithstanding any other provision of this agreement, if
at any time utility reasonably determines that the facility may endanger
utility personnel or other persons or property or the continued operation of
customer's facility may endanger the integrity or safety of utility's electric
system, utility shall have the right to disconnect and lock out customer's
facility from utility's electric system; customer's facility shall remain
disconnected until such time as utility is reasonably satisfied that the
conditions referenced in this section have been corrected;
(d) there is a failure of customer to adhere
to this agreement;
(e) if
suspension of service is otherwise necessary and allowed under utility's rules
and regulations as approved by the NMPRC.
(2) Customer shall cooperate with load
management plans and techniques as ordered or approved by the NMPRC, and the
service to be furnished by utility hereunder may be modified as required to
conform thereto.
F.
FORCE MAJEURE. Force majeure shall mean any cause beyond the
control of the party affected, including, but not limited to, failure of or
threat of failure of facilities, flood, earthquake, tornado, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, (labor
dispute,) labor or material shortage, sabotage, restraint by court order or
public authority, and action or nonaction, by or failure to obtain the
necessary authorizations or approvals from any governmental agency or
authority, which by exercise of due diligence such party could not reasonably
have been expected to avoid and which by exercise of due diligence, it shall be
unable to overcome. If either party, because of force majeure, is rendered
wholly or partly unable to perform its obligations under this agreement, except
for the obligation to make payments of money, that party shall be excused from
whatever performance is affected by the force majeure to the extent so
affected, provided that:
(1) the
nonperforming party, within a reasonable time after the occurrence of the force
majeure, gives the other party written notice describing the particulars of the
occurrence;
(2) the suspension of
performance is of no greater scope and of no longer duration than is required
by the force majeure; and
(3) the
nonperforming party uses its best efforts to remedy its inability to perform.
This paragraph shall not require the settlement of any strike, walkout, lockout
or other labor dispute on terms which, in the sole judgment of the party
involved in the dispute, are contrary to its interest. It is understood and
agreed that the settlement of strikes, walkouts, lockouts or other labor
disputes shall be entirely within the discretion of the party involved in the
disputes.
G.
INDEMNITY. Each party shall indemnify the other from liability,
loss, costs, and expenses on account of death or injury to persons or damage or
destruction of property occasioned by the negligence of the indemnifying party
or its agents, officers, employees, contractors, licensees or invitees, or any
combination thereof, except to the extent that such death, injury, damage, or
destruction resulted from the negligence of the other party or its agents,
officers, employees, contractors, licensees or invitees, or any combination
thereof. Provided, however, that:
(1) each
party shall be solely responsible for the claims or any payments to any
employee or agent for injuries occurring in connection with their employment or
arising out of any workers compensation law or occupational disease disablement
law;
(2) utility shall not be
liable for any loss of earnings, revenues, indirect or consequential damages or
injury which may occur to customer as a result of interruption or partial
interruption (single-phasing) in delivery of service hereunder to customer or
by failure to receive service from customer by reason of any cause whatsoever,
including negligence; and
(3) the
provisions of this subsection on indemnification shall not be construed so as
to relieve any insurer of its obligation to pay any insurance proceeds in
accordance with the terms and conditions of any valid insurance
policy;
(4) the indemnifying party
shall pay all costs and expenses incurred by the other party in enforcing the
indemnity under this agreement including reasonable attorney fees.
H.
DEDICATION. An
undertaking by one party to another party under any provision of this agreement
shall not constitute the dedication of such party's system or any portion
thereof to the public or to the other party and any such undertaking shall
cease upon termination of the party's obligations herein.
I.
STATUS OF CUSTOMER. In
performing under this agreement, customer shall operate as or have the status
of an independent contractor and shall not act as or be an agent, servant, or
employee of utility.
J.
AMENDMENT, MODIFICATIONS OR WAIVER. Any amendments or
modifications to this agreement shall be in writing and agreed to by both
parties. The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect the right at a later time to
enforce the same. No waiver by any party of the breach of any term or covenant
contained in this agreement, whether by conduct or otherwise, shall be deemed
to be construed as a further or continuing waiver of any such breach or a
waiver of the breach of any other term or covenant unless such waiver is in
writing.
K.
ASSIGNMENT. This agreement and all provisions hereof shall inure
to and be binding upon the respective parties hereto, their personal
representatives, heirs, successors, and assigns. Customer shall not assign this
agreement or any part hereof without the prior written consent of utility,
otherwise this agreement may be terminated pursuant to Paragraph (3) of
Subsection B of 17.9.570.15 NMAC
L.
NOTICES. Any payments, notices, demands or requests required or
authorized by this agreement shall be deemed properly given if personally
delivered or mailed postage prepaid to:
Customer: ____________________________________________
Utility:
______________________________________________
The designation of the persons to be notified, or the address
thereof, may be changed by notice in writing by one party to the other. Routine
notices and notices during system emergency or operational circumstances may be
made in person or by telephone. Customer's notices to utility pursuant to this
agreement shall refer to the customer's electric service account number set
forth in this agreement.
M.
MISCELLANEOUS. This agreement and any amendments thereto,
including any tariffs made a part hereof, shall at all times be subject to such
changes or modifications as shall be ordered from time to time by any
regulatory body or court having jurisdiction to require such changes or
modification. This agreement (and any tariffs incorporated herein) contains all
the agreements and representations of the parties relating to the
interconnection and purchases contemplated and no other agreement, warranties,
understandings or representations relating thereto shall be binding unless set
forth in writing as an amendment hereto.
N.
GOVERNING LAW. This agreement
shall be interpreted, governed, and construed under the laws of the state of
New Mexico as if executed and to be performed wholly within the state of New
Mexico.
O.
ATTACHMENTS. This agreement includes the following exhibits as
labeled and incorporated herein by reference:
(1) interconnection agreement;
(2) customer's sketch or one line diagram and
site drawing, and generation and protection equipment specifications.
In witness thereof, the parties have executed this agreement
on the date set forth herein above.
Date:__________
CUSTOMER__________By:__________.
Date: __________
UTILITY ________By:__________.
