Exhibit 10(a)61
Execution Copy
AMENDMENT NO.1, DATED AS OF JUNE 15, 1994,
TO THE PLANT ROBERT W. SCHERER UNIT NUMBER FOUR
OPERATING AGREEMENT
among
GEORGIA POWER COMPANY
FLORIDA POWER & LIGHT COMPANY
and
JACKSONVILLE ELECTRIC AUTHORITY
THIS AMENDMENT NO.1, dated as of June 15, 1994, is among
GEORGIA POWER COMPANY, a corporation organized and existing under
the laws of the State of Georgia ("GPC"), FLORIDA POWER & LIGHT
COMPANY, a corporation organized and existing under the laws of
the State of Florida ("FPL"), and JACKSONVILLE ELECTRIC
AUTHORITY, a body politic and corporate and an independent agency
of the City of Jacksonville, Florida, organized and existing
under the laws of the State of Florida, ("JEA"), and is Amendment
No. 1 to that certain Plant Robert W. Scherer Unit Number Four
Operating Agreement, dated as of December 31, 1990 (the
"Operating Agreement"), among GPC, FPL and JEA.
W I T N E S S E T H :
WHEREAS, GPC, FPL and JEA have previously entered into the
Operating Agreement to provide, among other things, for the
management, control, operation and maintenance of Scherer Unit
No. 4, the Additional Unit Common Facilities, the Plant Scherer
Common Facilities and in the Plant Scherer Coal Stockpile; and
WHEREAS, the parties hereto desire to amend certain
provisions of the Operating Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein set forth, the parties hereto hereby agree as follows:
1. Certain Definitions. Capitalized terms and phrases
used and not otherwise defined in this Amendment shall have the
respective meanings assigned to them by the Ownership Agreement,
the Operating Agreement, or both, unless the context or use
clearly indicates otherwise. The rules of interpretation,
instruction, or both, set forth in the Operating Agreement shall
apply with equal force and effect to this Amendment.
2. Amendment to Section 1, DEFINITIONS.
(a) Section 1(q), COMMON COAL STOCKPILE, is hereby amended
to add the following to the end thereof, "pursuant to
Section 6(i), COMMON COAL STOCKPILE AND SEPARATE COAL
STOCKPILES, of the Ownership Agreement."
(b) The first sentence of Section 1(r), COMMON COAL
STOCKPILE COSTS, is hereby amended to delete the words
"Section 3(d), FOSSIL FUEL," and to substitute the
words "subsection (iii) of Section 3(c), SEPARATE FUEL
PROCUREMENT" therefore.
The second sentence of Section 1(r), COMMON COAL
STOCKPILE COSTS, is hereby amended to add the words
"Other Fuel Costs, Separate Coal Stockpile Costs and"
after the words "shall not include."
(c) Section 1(v), COMMON PROCUREMENT PARTICIPANT, is hereby
amended to add the words "subsection (iii) of" after
the words "exercised its rights under" in subsection
(i) thereof.
Section 1(v), COMMON PROCUREMENT PARTICIPANT, is hereby
amended to delete the words "undivided ownership
interests" and "undivided percentage ownership
interest" and to substitute the words "Pro Forma
Ownership Interest in Plant Scherer" therefore.
(d) The second sentence of Section 1(bb), OTHER FUEL COSTS,
is hereby amended to add the words "Common Coal
Stockpile Costs, Separate Coal Stockpile Costs and"
after the words "shall not include."
(e) Section 1(bn), PLANT SCHERER PARTICIPATION AGREEMENTS,
is hereby amended to delete the words "William J. Wade
as Owner Trustees" and to substitute the words
"NationsBank of Georgia, N.A. (as successor to William
J. Wade) as Owner Trustees, as amended" therefore.
(f) Section 1(bq), PRO FORMA OWNERSHIP INTERESTS IN PLANT
SCHERER, is hereby amended to add words "by four" after
the words "obtained by dividing."
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Section 1(bq), PRO FORMA OWNERSHIP INTEREST IN PLANT
SCHERER, is hereby amended to delete "(i)" and the
words "by (ii) four" therefrom.
(g) Section 1(cf), SEPARATE COAL STOCKPILE COSTS, is hereby
amended by deleting such Section 1(cf) in its entirety
and by substituting, in lieu thereof, the following:
"(cf) Separate Coal Stockpile Costs. "Separate
Coal Stockpile Costs" shall mean with respect to each
Separate Coal Stockpile Participant all costs incurred
by the Agent for such Separate Coal Stockpile
Participant (or by a Common Procurement Participant in
connection with any contract for fuel entered into in
accordance with the provisions of subsection (iii) of
Section 3(c), SEPARATE FUEL PROCUREMENT, hereof) that
are allocable to the acquisition, processing,
transportation, delivering, handling, storage,
accounting, analysis, measurement and disposal of coal
for such Separate Coal Stockpile Participant,
including, without limitation, all costs incurred by
GPC as Agent in administering fuel and transportation
contracts entered into by such Separate Coal Stockpile
Participant pursuant to any one or more of Section
6(i), COMMON COAL STOCKPILE AND SEPARATE COAL
STOCKPILES, of the Ownership Agreement or subsection
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(ii) of Section 3(c), SEPARATE FUEL PROCUREMENT,
subsection (i) of Section 3(d), FOSSIL FUEL or Section
3(e), COMMON COAL STOCKPILE AND SEPARATE COAL
STOCKPILES, hereof, and including any advance payments
in connection therewith, less credits related to such
costs applied as appropriate, and including that
portion of administrative and general expenses which is
properly and reasonably allocable to acquisition and
management of coal for such Separate Coal Stockpile
Participant's Separate Coal Stockpile and for which the
incurring party has not otherwise been reimbursed.
Separate Coal Stockpile Costs shall not include Common
Coal Stockpile Costs, Other Fuel Costs and amortization
of the Plant Scherer initial fossil fuel supply,
including, without limitation, unrecoverable base
coal."
(h) Section 1(ch), SEPARATE PROCUREMENT PARTICIPANT, is
hereby amended by deleting such Section 1(ch) in its
entirety and by substituting, in lieu thereof, the
following:
"(ch) Separate Procurement Participant.
"Separate Procurement Participant" shall mean each
Separate Coal Stockpile Participant (i) which has
exercised its rights under the applicable subsections
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of Sections 3(c), SEPARATE FUEL PROCUREMENT hereof,
Section 2(c)(iii) of the Units Operating Agreement,
Section 3(c), SEPARATE FUEL PROCUREMENT of the Unit
Three Operating Agreement or (ii) which has been found
by a vote of a majority of the Pro Forma Ownership
Interest in Plant Scherer of the Common Procurement
Participants (excluding the Pro Forma Ownership
Interest in Plant Scherer of the Common Procurement
Participant under consideration) to have violated the
policies and rules for Common Procurement Participants
established from time to time by the Plant Scherer
Managing Board; and which has not been reestablished as
a Common Procurement Participant pursuant to subsection
(i) of Section 3(d), FOSSIL FUEL, hereof."
(i) Section 1(cl), SPOT COAL, is hereby amended by deleting
such Section 1(cl) in its entirety and by substituting,
in lieu thereof, the following:
"(cl) SPOT COAL. "Spot Coal" shall mean all coal
purchased for the Common Coal Stockpile or any Separate
Coal Stockpile under an arrangement of acquisition for
a period of less than one year, or some other period
agreed to by the written approval or consent of those
members of the Plant Scherer Managing Board which
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collectively own at least a 76% Pro Forma Ownership
Interest in Plant Scherer."
(j) Section 1(df), UNIFORM SYSTEM OF ACCOUNTS, is hereby
amended to delete the words "(Class A and Class B)" and
to substitute the words "subject to the provisions of
the Federal Power Act" therefore.
3. Amendment to Section 3, AUTHORITY AND RESPONSIBILITY FOR
OPERATION.
(a) The first paragraph of subsection (ii)(B) of Section
3(c), SEPARATE FUEL PROCUREMENT, is hereby amended to
add the following to the end thereof, "including,
without limitation, to extend, terminate or renegotiate
the contract or exercise options thereunder and to sue
the supplier."
(b) Subsection (iii) of Section 3(c), SEPARATE FUEL
PROCUREMENT, is hereby amended by deleting such
subsection in its entirety and by substituting, in lieu
thereof, the following:
"(iii) Subject to amendment of the other Plant
Scherer Participation Agreements to be consistent with
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the following provisions, GPC, FPL and JEA agree as
follows:
In the event that any Common Procurement
Participant (other than GPC, as Agent) should be able
to locate and arrange for a source of coal for the
Common Procurement Participants and (A) the total cost
per Btu of such coal, including, without limitation,
all brokerage, transportation, handling, testing and
storage charges, is equal to or lower than that of the
coal which GPC, as Agent, would be able to procure for
the Common Procurement Participants for the same period
of time; (B) the quality and characteristics of such
coal are in all respects equal to or better than and
compatible with those of the other coal being utilized
or to be utilized in the Common Coal Stockpile during
the period of such contract, and such coal is in all
respects compatible with the Units and the Additional
Units and will enable the Units and the Additional
Units to operate at their normal operational levels in
compliance with all Legal Requirements applying
thereto; (C) transportation for such coal can be
arranged which is at least as reliable as
transportation which would be available for the other
sources of coal for the Common Coal Stockpile for the
same period of time, and such transportation is
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compatible with the transportation and coal delivery
facilities of the Units and the Additional Units; (D)
all parties materially associated with the supply of
such coal, including, without limitation, the vendor,
broker, mine operator and transporter, are at least as
reliable and technically and financially qualified as
those with whom GPC, as Agent, would be able to
contract for the other coal for the Common Coal
Stockpile during the same period of time; (E)
procurement of such coal would not interfere with,
diminish any benefits of or replicate any other coal
arrangement which GPC, as Agent, has procured for or
entered into for the Common Procurement Participants,
including, without limitation, any options or rights
for renewals or extensions of contacts, and would not
interfere with, diminish any benefits of or replicate
any transportation arrangements, agreements or tariffs;
(F) procurement of such coal would not increase or
diminish the level of coal supply in the Common Coal
Stockpile determined by GPC, as Agent, to be the
appropriate level therefor; and (G) the vendor of such
coal is willing to enter into a contract with GPC and
such of the Separate Coal Stockpile Participants
desiring to participate in such coal supply arrangement
on terms and conditions no less favorable to the Common
Procurement Participants than those then being
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bargained for by GPC; then GPC, as Agent for the Common
Procurement Participants, shall offer such coal supply
arrangement to the Common Procurement Participants in
accordance with the provisions of Section 3(d) hereof.
If GPC, on behalf of the other Common Coal Stockpile
Participants, or if a Separate Coal Stockpile
Participant for its own account, shall enter into one
or more contracts for such coal supply, then GPC shall
thereafter exclusively administer such contract and all
transportation arrangements associated therewith, and
all costs and benefits of such coal supply arrangement
shall be shared pursuant to the other provisions of
this Agreement and of the Ownership Agreement. No
Participant or Additional Unit Participant (other than
GPC, as Agent, or a Separate Coal Stockpile Participant
for its own account) shall enter into any arrangement
or agreement with respect to the procurement of coal
pursuant to this subsection (iii) of Section 3(c), and
any Participant or Additional Unit Participant (other
than GPC, as Agent, or a Separate Coal Stockpile
Participant for its own account) which shall enter into
any such arrangement or agreement (or which is charged
in any suit, action or other proceeding with having
done so) shall indemnify the other Participants and
Additional Unit Participants for all costs, expenses,
judgments and penalties associated therewith and
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incurred by them, including, without limitation, all
legal fees incurred in connection with any suit, action
or other proceeding."
(c) Subsection (i)(A) of Section 3(d), FOSSIL FUEL, is
hereby amended as follows:
(1) The title of such subsection is hereby amended to
delete the word "Fuel" and to substitute the words
"Coal and Transportation" therefore.
(2) The first sentence of such subsection is hereby
amended to add the words "Section 3(c), SEPARATE
FUEL PROCUREMENT," after the words "Subject to the
provisions of."
(3) The second sentence of such subsection is hereby
amended to add the word "and" after the words
"Common Coal Stockpile."
(d) Subsection (i)(B) of Section 3(d), FOSSIL FUEL, is
hereby amended as follows:
(1) The title of such subsection is hereby amended to
delete the word "Fuel" and to substitute the words
"Coal and Transportation" therefore.
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(2) The third sentence of such subsection is hereby
amended to add the following to the end thereof,
"including, without limitation, to extend,
terminate or renegotiate the contract or exercise
options thereunder and to sue the supplier."
(e) Subsection (i)(C) of Section 3(d), FOSSIL FUEL, is
hereby amended by deleting the first sentence of such
subsection in its entirety and by substituting, in lieu
thereof, the following:
"Upon (i) exercise by any Separate Coal Stockpile
Participant of a procurement under subsection (ii) of
Section 3(c), SEPARATE FUEL PROCUREMENT, hereof, or
(ii) violation by any Separate Coal Stockpile
Participant, which has been found by a vote of a
majority of the Pro Forma Ownership Interest in Plant
Scherer of the Common Procurement Participants
(excluding the Pro Forma Ownership Interest in Plant
Scherer of the Common Procurement Participant under
consideration) of any policy or rule for Common
Procurement Participants established from time to time
by the Plant Scherer Managing Board, such Separate Coal
Stockpile Participant shall immediately cease to be a
Common Procurement Participant, and GPC shall have no
obligation to procure coal or transportation on behalf
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of such Separate Coal Stockpile Participant other than
for Spot Coal."
(f) Subsections (iii), (iv) and (v) of Section 3(d), FOSSIL
FUEL are hereby amended to add the words "5(b),
SCHEDULING AND DISPATCHING" after the words "Sections
3(e), COMMON COAL STOCKPILE AND SEPARATE COAL
STOCKPILES" in each of those subsections.
(g) Subsection (ii) of Section 3(e), COMMON COAL STOCKPILE
AND SEPARATE COAL STOCKPILES, is hereby amended to add
the words "5(b), SCHEDULING AND DISPATCHING," after the
words "Sections 3(e), COMMON COAL STOCKPILE AND
SEPARATE COAL STOCK PILES."
(h) Subsection (ii) of Section 3(e), COMMON COAL STOCKPILE
AND SEPARATE COAL STOCKPILES, is hereby amended to add
the following to the end thereof, "except as provided
in subsection (viii) of this Section 3(e)."
(i) The fourth sentence of subsection (iii) of Section
3(e), COMMON COAL STOCKPILE AND SEPARATE COAL
STOCKPILES, is hereby amended to add the word
"undivided" after the words "will equal the."
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(j) The last sentence of subsection (iii) of Section 3(e),
COMMON COAL STOCKPILE AND SEPARATE COAL STOCKPILES, is
hereby amended to delete the words "undivided ownership
interests" and to substitute the words "Pro Forma
Ownership Interest in Plant Scherer" therefore.
(k) Subsection (vi) of Section 3(e), COMMON COAL STOCKPILE
AND SEPARATE COAL STOCKPILES, is hereby amended by
adding the following to the end thereof, "under this
Section 3(e)."
4. Amendment to Section 5, OPERATION, RIGHTS AND OBLIGATIONS.
(a) Section 5(i), BUSINESS PLAN; OPERATING BUDGET FOR
COMMON FACILITIES, is hereby amended by adding the
following after the second paragraph thereof:
"Section 5.1 of the Plant Scherer Managing Board
Agreement and Appendix A of the Plant Scherer Managing
Board Agreement shall govern and control any
conflicting provision of this Operating Agreement with
regard to operating budgets for the Plant Scherer
Common Facilities."
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(b) Section 5(l), CAPITAL BUDGET FOR COMMON FACILITIES, is
hereby amended by adding the following after the second
paragraph thereof:
"Section 5.1 of the Plant Scherer Managing Board
Agreement and Appendix A of the Plant Scherer Managing
Board Agreement shall govern and control any
conflicting provision of this Operating Agreement with
regard to capital budgets for the Plant Scherer Common
Facilities."
(d) The third sentence of Section 5(p), INSURANCE, is
hereby amended to delete the words "Section 5(h)
SHARING OF COSTS - GENERAL" and to substitute the words
"Section 5(j), PAYMENT AND SETTLEMENT OF OPERATING
COSTS," therefore.
5. Amendment to Section 6, CERTAIN ADDITIONAL AGREEMENTS AMONG
SCHERER UNIT NO. 4 PARTICIPANTS.
(a) The first sentence of subsection (v) of Section 6(c),
LIABILITY, REMEDIES AND LIMITATIONS OF LIABILITY, is
hereby amended to delete the word "possible" and to
substitute the word "permissible" therefore.
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(b) The first sentence of Section 6(e), AVAILABILITY OF
RECORDS, is hereby amended to delete the word "Costs"
after the words "with respect to its Separate Coal
Stockpile" and to delete the word "as" before the word
"appropriate" and substitute the word "are" therefore.
6. Miscellaneous.
This Amendment shall be construed in connection with and as
a part of the Operating Agreement, and all terms, conditions and
covenants contained in the Operating Agreement, except as herein
modified, shall be and remain in full force and effect. The
parties hereto agree that they are bound by the terms and
conditions of the Operating Agreement as amended hereby.
This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original
but altogether one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned Parties hereto have duly
executed this Amendment to the Operating Agreement under seal as
of the date first above written.
Signed, sealed and delivered GEORGIA POWER COMPANY, as a
in the presence of: Scherer Unit No. 4 Participant
___________________________ By: ________________________
___________________________ Attest: ____________________
Notary Public
(CORPORATE SEAL)
Signed, sealed and delivered FLORIDA POWER & LIGHT COMPANY,
in the presence of: as a Scherer Unit No. 4
Participant
___________________________ By: _________________________
___________________________ Attest: _____________________
Notary Public
(CORPORATE SEAL)
Signed, sealed and delivered JACKSONVILLE ELECTRIC
in the presence of: AUTHORITY, as a Scherer Unit
No. 4 Participant
___________________________ By: _________________________
___________________________ Attest: ____________________
Notary Public
(CORPORATE SEAL)
Signed, sealed and delivered GEORGIA POWER COMPANY, as
in the presence of: Agent
___________________________ By: _________________________
___________________________ Attest: _____________________
Notary Public
(CORPORATE SEAL)
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