Vogtle Units No. 3 and No. 4 Construction Project | (L) Vogtle Units No. 3 and No. 4 Construction Project. We, Georgia Power, the Municipal Electric Authority of Georgia, and the City of Dalton, Georgia, acting by and through its Board of Water, Light and Sinking Fund Commissioners, doing business as Dalton Utilities (collectively, the Co-owners) are parties to an Ownership Participation Agreement that, along with other agreements, governs our participation in two additional nuclear units at Plant Vogtle, Units No. 3 and No. 4. The Co-owners appointed Georgia Power to act as agent under this agreement. Our binding ownership interest and proportionate share of the cost to construct these units is 30%. Pursuant to this agreement, Georgia Power has designated Southern Nuclear Operating Company, Inc. as its agent for licensing, engineering, procurement, contract management, construction and pre-operation services. As of March 31, 2017, our current investment in the additional Vogtle units was $3,432,000,000. In 2008, Georgia Power, acting for itself and as agent for the Co-owners, entered into an Engineering, Procurement and Construction Agreement (the EPC Agreement) with Westinghouse Electric Company LLC and Stone & Webster, Inc. (collectively, the Contractor). Stone & Webster was subsequently acquired by Westinghouse and changed its name to WECTEC Global Project Services Inc. (WECTEC). Pursuant to the EPC Agreement, the Contractor agreed to design, engineer, procure, construct and test two 1,100 megawatt nuclear units using the Westinghouse AP1000 technology and related facilities at Plant Vogtle. Under the EPC Agreement, the Co-owners agreed to pay a purchase price that is subject to certain price escalations and adjustments, including fixed escalation amounts and certain index-based adjustments, as well as adjustments for change orders and performance bonuses. The EPC Agreement also provides for liquidated damages upon the Contractor's failure to fulfill the schedule and certain performance guarantees, each subject to an aggregate cap of 10% of the contract price, or approximately $920,000,000. In addition, the EPC Agreement provides for limited cost sharing by the Co-owners for increases to Contractor costs under certain conditions. The maximum amount of additional capital costs under this provision attributable to us is $75,000,000. Each Co-owner is severally, and not jointly, liable to the Contractor for its proportionate share, based on its ownership interest, of all amounts owed under the EPC Agreement. In the event of a credit rating downgrade below investment grade of any Co-owner, that Co-owner will be required to provide a letter of credit or other credit enhancement. Under the terms of the EPC Agreement, the Contractor does not have a right to terminate the EPC Agreement for convenience. The Contractor may terminate the EPC Agreement under certain circumstances, including certain Co-owner suspension or delays of work, action by a governmental authority to permanently stop work, certain breaches of the EPC Agreement by the Co-owners, Co-owner insolvency, and certain other events. In the event of an abandonment of work by the Contractor, the maximum liability of the Contractor under the EPC Agreement is increased to 40% of the contract price (approximately $1,100,000,000 based on our ownership interest). The EPC Agreement permits Georgia Power, acting for itself and as agent for the Co-owners, to terminate the EPC Agreement at any time for convenience; provided that the Co-owners will be required to pay certain termination costs. In addition, Georgia Power, acting for itself and as agent for the Co-owners, may terminate the EPC Agreement for certain Contractor breaches, including abandonment of work by the Contractor. Under the Toshiba Guarantee, Toshiba has guaranteed certain payment obligations of the Contractor, including any liability of the Contractor for abandonment of work. However, due to Toshiba's financial situation described below, substantial risk regarding the Co-owners' ability to fully collect under the Toshiba Guarantee exists. In January 2016, Westinghouse delivered to the Co-owners $920,000,000 of letters of credit from financial institutions (Westinghouse Letters of Credit) to secure a portion of the Contractor's potential obligations under the EPC Agreement. The Westinghouse Letters of Credit are subject to annual renewals through June 30, 2020, and require 60 days' written notice to Georgia Power, as agent of the Co-owners, in the event the Westinghouse Letters of Credit will not be renewed. In the event of such notice, Georgia Power, as agent of the Co-owners, would be able to draw on the entire balance of the Westinghouse Letters of Credit. The Westinghouse Letters of Credit remain in place in accordance with the terms of the EPC Agreement. On March 29, 2017, Westinghouse and WECTEC each filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code. Georgia Power, acting for itself and as agent for the other Co-owners, entered into an Interim Assessment Agreement with the Contractor and WECTEC Staffing Services LLC (WECTEC Staffing), dated as of March 29, 2017 (the Interim Assessment Agreement), to provide for a continuation of work with respect to Vogtle Units No. 3 and No. 4. The provisions in the Interim Assessment Agreement became effective upon approval of the Interim Assessment Agreement by the bankruptcy court on March 30, 2017. The term of the Interim Assessment Agreement was originally scheduled to expire on April 28, 2017. On April 28, 2017, Georgia Power, acting for itself and as agent for the other Co-owners, entered into an amendment to the Interim Assessment Agreement with the Contractor and WECTEC Staffing solely to extend the term of the Interim Assessment Agreement through the earlier of (i) May 12, 2017 and (ii) termination of the Interim Assessment Agreement by any party upon five business days' notice (the Interim Assessment Period). The Interim Assessment Agreement provides, among other items, that (i) Georgia Power will be obligated to pay, on behalf of the Co-owners, all costs accrued by the Contractor for subcontractors and vendors for services performed or goods provided during the Interim Assessment Period, with these amounts to be paid to the Contractor, except for amounts accrued for Fluor Corporation (Fluor), which will be paid directly to Fluor, (ii) during the Interim Assessment Period, the Contractor shall provide certain engineering, procurement and management services for Vogtle Units No. 3 and No. 4, to the same extent as contemplated by the EPC Agreement, and Georgia Power, on behalf of the Co-owners, will make payments of $5,400,000 per week for these services, (iii) Georgia Power will have the right to make payments, on behalf of the Co-owners, directly to subcontractors and vendors who have accounts past due with the Contractor, (iv) during the Interim Assessment Period, the Contractor will use its commercially reasonable efforts to provide information reasonably requested by Georgia Power as is necessary to continue construction and investigate the completion status of Vogtle Units No. 3 and No. 4, (v) the Contractor will reject or accept the EPC Agreement by the termination of the Interim Assessment Agreement, and (vi) during the Interim Assessment Period, Georgia Power, on behalf of the Co-owners, will not exercise any remedies against Toshiba under Toshiba's guarantee of certain obligations of Westinghouse under the EPC Agreement (the Toshiba Guarantee). Under the Interim Assessment Agreement, all parties expressly reserve all rights and remedies under the EPC Agreement, all related security and collateral, under applicable law. A number of subcontractors to the Contractor, including Fluor Enterprises, Inc., have alleged non-payment by the Contractor for amounts owed for work performed on Vogtle Units No. 3 and No. 4. Georgia Power, acting for itself and as agent for the Co-owners, has taken, and continues to take, action to remove liens filed by these subcontractors through the posting of surety bonds. Georgia Power estimates the aggregate liability for the Co-owners under the Interim Assessment Agreement and the removal of subcontractor liens to be approximately $470,000,000, of which our proportionate share would total approximately $141,000,000. As of March 31, 2017, $245,000,000 of this aggregate liability had been paid or accrued. Georgia Power is evaluating remedies available to the Co-owners for these payments, including draws under the Westinghouse Letters of Credit and enforcement of the Toshiba Guarantee. Georgia Power, as agent for the Co-owners, has begun the process to access a portion of the funds available under the Westinghouse Letters of Credit. In February 2017, the Contractor provided Georgia Power, as agent for the Co-owners, with revised forecasted in-service dates of December 2019 and September 2020 for Vogtle Units No. 3 and No. 4, respectively. However, we and Georgia Power do not believe the revised in-service dates are achievable. Georgia Power, along with the other Co-owners, is undertaking a comprehensive schedule and cost-to-complete assessment, as well as a cancellation cost assessment. It is reasonably possible these assessments result in estimated incremental costs to complete, including Co-owners' costs, that materially exceed the value of the Toshiba Guarantee. We intend to work with Georgia Power and the other Co-owners to determine future actions related to Vogtle Units No. 3 and No. 4. Georgia Power has stated that it is working with the Georgia Public Service Commission in regards to this same determination. Georgia Power, for itself and as agent for the other Co-owners, is also negotiating a new service agreement which would, if necessary, engage the Contractor to provide design, engineering, and procurement services to Southern Nuclear, in the event Southern Nuclear assumes control over construction management of Vogtle Units No. 3 and No. 4. In addition, Georgia Power, on behalf of itself and the other Co-owners, intends to take all actions available to it to enforce its rights related to the EPC Agreement, including enforcing the Toshiba Guarantee, subject to the Interim Assessment Agreement, and accessing the Westinghouse Letters of Credit. On April 11, 2017, Toshiba filed its unaudited financial statements as of and for the nine months ended December 31, 2016, which reflected a negative shareholders' equity balance of $1,900,000,000, with Japanese regulators. Toshiba also announced that further substantial charges may be required in the quarter ended March 31, 2017 in connection with the bankruptcy filing of Westinghouse and WECTEC and that there are material events and conditions that raise substantial doubt about Toshiba's ability to continue as a going concern. The Contractor's bankruptcy filing is expected to have a material impact on the construction cost and schedule of Vogtle Units No. 3 and No. 4 and could have a material impact on our financial condition and results of operations. In addition, an inability or other failure by Toshiba to perform its obligations under the Toshiba Guarantee could have a material impact on the cost to the Co-owners of Vogtle Units No. 3 and No. 4, and, therefore, on our financial condition and results of operations. There have been technical and procedural challenges to the construction and licensing of Vogtle Units No. 3 and No. 4 at the federal and state level and additional challenges may arise as construction proceeds. Processes are in place that are designed to assure compliance with the requirements specified in the Westinghouse Design Control Document and the combined construction and operating licenses, including inspections by Southern Nuclear and the Nuclear Regulatory Commission that occur throughout construction. As a result of such compliance processes, certain license amendment requests have been filed and approved or are pending before the Nuclear Regulatory Commission. Various design and other licensing-based compliance matters, including the timely resolution of Inspections, Tests, Analyses, and Acceptance Criteria and the related approvals by the Nuclear Regulatory Commission, may arise as construction proceeds, which may result in additional license amendments or require other resolution. If any license amendment requests or other licensing-based compliance issues are not resolved in a timely manner, there may be further delays in the project schedule that could result in increased costs. As construction continues, the risk remains that challenges with labor productivity, fabrication, delivery, assembly, and installation of plant systems, structures, and components, or other issues could arise and may further impact project schedule and cost. Our previously estimated owner's and financing costs of approximately $20,000,000 per month in the near term for Vogtle Units No. 3 and No. 4 are being evaluated as part of the comprehensive schedule and cost-to-complete analysis being performed as a result of the Contractor's bankruptcy. The ultimate outcome of these matters cannot be determined at this time. |