Exhibit 10.33.2
GENERATION SERVICES AGREEMENT
between
OGLETHORPE POWER CORPORATION
(An Electric Membership Generation & Transmission Corporation)
and
GEORGIA SYSTEM OPERATIONS CORPORATION
dated as of
March 1, 1997
GENERATION SERVICES AGREEMENT
between
OGLETHORPE POWER CORPORATION
(An Electric Membership Generation & Transmission Corporation)
and
GEORGIA SYSTEM OPERATIONS CORPORATION
dated as of March 1, 1997
This GENERATION SERVICES AGREEMENT ("Agreement"), dated as of March 1,
1997, is entered into by and between OGLETHORPE POWER CORPORATION (An Electric
Membership Generation & Transmission Corporation), an electric membership
corporation organized and existing under Title 46 of the Official Code of
Georgia Annotated ("OPC"), and GEORGIA SYSTEM OPERATIONS CORPORATION, a
non-profit corporation organized and existing under the laws of the State of
Georgia ("GSOC") (each a "Party" and collectively "Parties").
WHEREAS, OPC was formed by 39 electric membership corporations doing
business in the State of Georgia (the "OPC Members"), each of which joined with
the others, beginning in 1974, to form OPC in order to share the benefits and
costs of ownership of an entity that would engage in providing electric capacity
and energy for the benefit of its members; and
WHEREAS, OPC currently owns and operates electric generation plants and
in the future may construct additional electric generation plants or purchase or
otherwise obtain electric capacity and energy for the purpose, among others, of
supplying electric capacity and energy to the OPC Members; and
WHEREAS, GSOC provides, pursuant to its Operation Services Tariff, dated
as of January 1, 1997, as such tariff may be amended from time to time (the
"GSOC Tariff"), coordination and ancillary control area services that are
necessary to support the transmission of energy from resources to loads while
maintaining continued reliable operation of the transmission system into,
across, or from which such energy is transmitted, in accordance with Prudent
Utility Practice (the foregoing services, "Operation Services"); and
WHEREAS, OPC has sold and transferred to GSOC and GSOC has purchased and
received from OPC the assets and expertise for GSOC (i) to provide Operation
Services to OPC, to OPC Members desiring to purchase such services
independently, and to others under the GSOC Tariff, and (ii) to conduct Single
System Dispatch of generating capacity; and
WHEREAS, GSOC requires Generation Services in order to provide
generation-related Operation Services for the reliable transmission of electric
capacity and energy; and
WHEREAS, the Parties hereto desire to enter into this Agreement to
establish and define the Generation Services and other services that OPC may
provide to GSOC under OPC's Generation Service Schedules, dated as of January 1,
1997, as such schedules may be amended
from time to time (the "Generation Service Schedules"), and this Agreement, and
the terms and conditions (including, but not limited to, type(s) and duration(s)
of Generation Service(s)) therefor;
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings herein contained, OPC and GSOC hereby agree as follows:
ARTICLE I
DEFINED TERMS; GENERATION AND OTHER SERVICES
1.1 Definitions. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Generation Service
Schedules, unless the context in which a term is used clearly requires
otherwise.
1.2 Generation Services. The Generation Service Schedules, as such schedules are
in effect from time to time, shall govern the rates and certain terms and
conditions of the Generation Services that OPC agrees to provide to GSOC and
GSOC agrees to take from OPC. To the extent that GSOC requires services to
schedule capacity and energy transactions properly, GSOC shall obtain such
services from OPC, provided that they are available. Those Generation Services
listed in Exhibit 1 attached hereto and incorporated herein by reference, as
such exhibit may be amended from time to time, are the Generation Services that
OPC shall make available to GSOC. The availability of such Generation Services
is contingent upon a variety of factors, including, but not limited to, the
ability of OPC to sell such services to others at more favorable rates or on
more favorable terms and conditions. Exhibit 1 sets forth, in addition to the
Generation Services to be provided pursuant to this Agreement, any other
material terms applicable to such Generation Services. Any Generation Services
provided by OPC at the request or on behalf of GSOC shall be provided at the
rates and on the terms and conditions set forth in the Generation Service
Schedules, as such schedules are in effect from time to time.
1.3 GSOC's Obligations. GSOC shall maintain and provide to OPC, routinely and on
demand, the data necessary for OPC to determine the utilization and performance
of its facilities, report to regulatory agencies and prepare invoices for its
products and services to its members and customers, as may be determined from
time to time by the Parties.
1.4 Standard of Service. OPC shall provide Generation Services hereunder in
accordance with Prudent Utility Practice.
1.5 Third Parties. OPC may obtain from another party certain of the Generation
Services provided hereunder to GSOC. GSOC may purchase Generation Services
provided hereunder for resale to others and may purchase services similar to the
Generation Services provided hereunder from others only if such Generation
Services are not available from OPC.
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1.6 Regulatory Filings.
1.6.1 Approval. This Agreement is subject to the approval of the
Administrator of the RUS. OPC shall be under no obligation to provide Generation
Services to GSOC until this Agreement has received such approval and any other
necessary approval by the appropriate Governmental Authority. OPC shall file
this Agreement as necessary to comply with the requirements of the appropriate
Governmental Authority.
1.6.2 Other Filings. Nothing contained in this Agreement shall be
construed as affecting in any way the right of OPC unilaterally to make
application to the Commission to accept an initial filing or for change in
rates, terms and conditions, charges, classifications of service, this
Agreement, rule or regulation under Section 205 of the Federal Power Act and
pursuant to the Commission's rules and regulations promulgated thereunder.
1.6.3 Exercise of Rights. Nothing contained herein shall be construed as
affecting in any way the right of GSOC to exercise its rights under the Federal
Power Act and pursuant to the Commission's rules and regulations promulgated
thereunder.
ARTICLE II
TERM
2.1 Effective Date. This Agreement shall become effective upon the
occurrence of the following two (2) events: (a) approval in writing by the
Administrator of the RUS, and (b) acquisition by Georgia Transmission
Corporation (An Electric Membership Corporation) of the transmission assets and
business of OPC. The date this Agreement becomes effective shall be the
"Effective Date."
2.2 Term. This Agreement shall begin on the Effective Date and, unless
terminated as provided in Section 2.3 below, end on December 31, 2001, provided
that one Party has given the other Party not less than one (1) year's written
notice of its intent to terminate this Agreement as of December 31, 2001. If not
otherwise terminated, after December 31, 2001, this Agreement shall continue
from year to year unless terminated by a Party giving the other Party not less
than six (6) months' prior written notice of its intent to terminate.
2.3 Early Termination. This Agreement may be terminated at any time
prior to the end of the initial term or any extension under any of the following
provisions:
2.3.1 Mutual Consent. The Parties may terminate this Agreement at any
time upon mutual written consent.
2.3.2 Failure to Comply with OPC Legal Requirements. OPC may terminate
this Agreement if seventy-five percent (75%) of the Board of Directors of OPC
determines that continued performance hereunder by GSOC can reasonably be
expected to result in OPC being
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unable to comply with an OPC Legal Requirement. Prior to any such determination,
OPC shall have notified GSOC in writing of its concerns and given GSOC thirty
(30) days to correct its performance, or such shorter period as the Board of
Directors of OPC determines is necessary to avoid a System Emergency. For
purposes of this Agreement, an "OPC Legal Requirement" shall mean (i) all laws,
codes, ordinances, orders, judgments, decrees, injunctions, licenses, rules,
permits, approvals, agreements, regulations and requirements of every
governmental authority having jurisdiction over the matter in question, whether
federal, state or local, which may be applicable to OPC, (ii) obligations of OPC
to an OPC Member, or (iii) obligations of OPC under the Amended and Restated
Wholesale Power Contract between OPC and each of the OPC Members, dated as of
August 1, 1996.
2.3.3 Loss of Control of GSOC. OPC may terminate this Agreement at any
time upon thirty (30) days' prior written notice, to be effective on or after a
change in control of GSOC such that the OPC Members that have control of OPC at
that time no longer have control of GSOC. For purposes of this Section 2.3.3,
"control" shall mean the power to direct the management and policies of GSOC,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
ARTICLE III
INDEMNIFICATION AND LIABILITY
3.1 Force Majeure. Neither OPC nor GSOC will be considered in default as to any
obligation under the Generation Service Schedules if prevented from fulfilling
the obligation due to an event of Force Majeure. However, a Party whose
performance under the Generation Service Schedules is hindered by an event of
Force Majeure shall make all reasonable efforts to perform its obligations under
the Generation Service Schedules.
3.2 Indemnification. GSOC shall at all times indemnify, defend, and save OPC
harmless from, any and all damages, losses, claims, including claims and actions
relating to injury to or death of any person or damage to property, demands,
suits, recoveries, costs and expenses, court costs, attorney fees, and all other
obligations by or to third parties, arising out of or resulting from OPC's
performance of its obligations under the Generation Service Schedules, except in
cases of negligence or intentional wrongdoing by OPC.
3.3 Consequential and Indirect Damages. Notwithstanding any other provision to
the contrary contained in the Generation Service Schedules or this Agreement, to
the fullest extent permitted by law, neither Party shall have liability to the
other Party for any indirect, consequential, multiple or punitive damages unless
such damages are the result of the Party's bad faith, gross negligence, or
willful misconduct.
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ARTICLE IV
MISCELLANEOUS
4.1 Operating Representatives. By letter dated as of even date herewith, GSOC
and OPC have each appointed operating representatives to act for the respective
Parties in matters pertaining to service under this Agreement. Either Party may
designate a successor operating representative in its discretion by providing
the other Party with written notice thereof.
4.2 Notices. All notices, requests, statements or payments provided for,
required or permitted by this Agreement shall be sufficient for any and all
purposes under this Agreement when transmitted by facsimile, first class United
States Mail, hand delivery, or a private express delivery service to the
facsimile numbers or addresses provided below or as otherwise designated in
writing by the applicable Party:
If to OPC:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, GA 30085-1349
Attention: Preference Power Coordinator
Telephone: 770-270-7765
FAX: 770-270-7590
If to GSOC:
Georgia System Operations Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, GA 30085-1349
Attention: Chief Operating Officer
Telephone: 770-270-7955
FAX: 770-270-7908
4.3 Communications Regarding Emergencies. Any communications regarding
operational emergencies or other operational problems may be made orally or in
any other manner reasonable under the circumstances and should be directed to
the persons specified below, or to such other person or address as may have been
designated in a written notice given to the other persons by or on behalf of the
person entitled to receive notice. In the event the person entitled to receive
notice cannot be found, notice may be given to any other responsible person.
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If to OPC:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, GA 30085-1349
Attention: Preference Power Coordinator
Telephone: 770-270-7765
FAX: 770-270-7590
If to GSOC:
Georgia System Operations Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, GA 30085-1349
Attention: Manager, Control Room Operations
Telephone: 770-270-7740
FAX: 770-270-7320
4.4 Governing Law. The validity, interpretation and performance of the
Generation Service Schedules and this Agreement and each of their respective
provisions shall be governed by the laws of the State of Georgia.
4.5 Waivers and Exercise of Rights.
4.5.1 Waiver. OPC may waive its rights under any provision of the
Generation Service Schedules or this Agreement when it determines that doing so
is in the best interests of the OPC Members.
4.5.2 Subsequent Default. Any waiver at any time by OPC of its rights
with respect to any matter arising in connection with the Generation Service
Schedules or this Agreement shall not be considered a waiver with respect to any
subsequent default or matter.
4.5.3 Exercise of Rights. No failure or delay on the part of either
Party in exercising any right, power or privilege under the Generation Service
Schedules or this Agreement and any related agreement, and no course of dealing
between the Parties, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power, or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
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4.6 Counterparts. This Agreement may be executed in as many counterparts as may
be required, and it shall not be necessary that the signatures of or on behalf
of each Party appear on each counterpart, but it shall be sufficient that the
signature of or on behalf of each Party appear on one or more of the
counterparts. All counterparts shall collectively constitute a single agreement.
Each executed counterpart shall have the same force and effect as an original
instrument, and it shall not be necessary in any proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of or on behalf of each of the Parties.
4.7 Compliance with Legal Requirements. Each Party shall cooperate in taking
whatever action may be required to comply with all Legal Requirements of any
Governmental Authority having jurisdiction over the Generation Service Schedules
in accordance with Prudent Utility Practice.
4.8 Severability. If any part of any provision of the Generation Service
Schedules, this Agreement, and any other agreement, document, or writing given
pursuant to or in connection with such tariffs, agreements and schedules shall
be invalid or unenforceable under applicable law, said part shall be ineffective
to the extent of such invalidity only, without in any way affecting the
remaining parts of said provision or the remaining provisions.
4.9 Third-Party Beneficiaries.
4.9.1 No Third-Party Beneficiaries. This Agreement is intended solely
for the benefit of the Parties, and nothing in the Generation Service Schedules
or this Agreement will be construed to create any duty to, or standard of care
with reference to, or any liability to, any person not a Party hereto.
4.9.2 Enforcement. It is the intention of the Parties that no person or
entity other than the Parties shall have any right to bring any action to
enforce any provision of the Generation Service Schedules, this Agreement, and
related agreements against either of the Parties, and that the covenants,
undertakings and agreements set forth in the aforementioned documents shall be
solely for the benefit of, and shall be enforceable only by, the Parties or
their respective successors or permitted assigns.
4.9.3 Responsibility of Parties. Each of the Parties will be responsible
for its own conduct and neither will be responsible for the conduct of the
other. The Generation Service Schedules and this Agreement do not create a
contractual relationship or duty of one Party with or to the customers of the
other Party.
4.10 No Dedication of Facilities. OPC's agreement to provide service under the
provisions of the Generation Service Schedules or this Agreement shall not
constitute the dedication of OPC's resources or facilities, or any portion
thereof, to GSOC or the public. OPC's service obligations to GSOC under any
provisions of the Generation Service Schedules or this Agreement will cease
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upon termination of the Generation Service Schedules or this Agreement. OPC's
provision of service under the Generation Service Schedules or this Agreement
does not constitute a sale, lease, rental, transfer, or conveyance of an
ownership interest in or to any facilities of any kind.
4.11 Action by Affiliates. Failure by either Party to perform fully any
obligation required by the Generation Service Schedules, this Agreement, and any
related agreements, shall not be excused by reason of the fact that such
performance was prevented by any action or inaction of an Affiliate unless such
Affiliate's actions or inactions are the result of a Force Majeure or are taken
pursuant to the Generation Service Schedules and are not unduly discriminatory.
4.12 Independent Contractors. The Parties to this Agreement are independent
contractors, and nothing contained in the Generation Service Schedules or this
Agreement will be deemed to create an association, joint venture, partnership,
principal-agent or any other kind of fiduciary relationship between the Parties.
4.13 Rules of Construction.
4.13.1 Headings. The descriptive headings of the various articles,
sections and subsections of the Generation Service Schedules have been inserted
for convenience of reference only and should not be construed as to define,
expand, or restrict the rights and obligations of the Parties.
4.13.2 Including. Wherever the term "including" is used in the
Generation Service Schedules, such term shall not be construed as limiting the
generality of any statement, clause, phrase or term.
4.13.3 Singular and Plural. The terms defined in the Generation Service
Schedules and this Agreement shall be applicable to the plural as well as the
singular and the singular as well as the plural.
4.13.4 Time of the Essence. Time is of the essence in the performance of
the obligations set forth in the Generation Service Schedules and this
Agreement.
4.14 Survival. The applicable provisions of the Generation Service Schedules and
this Agreement will continue in effect after termination or cancellation of the
Generation Service Schedules or this Agreement to the extent necessary to
provide for final billing, billing adjustments and payments, and with respect to
liability and indemnification from acts or events that occurred while the
Generation Service Schedules and Agreement were in effect.
4.15 Amendments. No amendment to this Agreement shall be effective unless it is
in writing, executed by both Parties, and has been approved or accepted for
filing and permitted to go into effect by any Governmental Authority having
jurisdiction. Changes to the Generation Service
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Schedules shall be effective as to GSOC when approved by OPC and not prohibited
by the express provisions of this Agreement.
4.16 Relationship of OPC to GSOC. GSOC shall furnish to OPC promptly upon
request any and all information about itself, its financial condition, business
and properties that may be necessary or desirable to facilitate any financing
undertaken by OPC or any continuing disclosure obligation incurred by OPC in
connection with any such financing. GSOC shall be responsible only to OPC for
the accuracy and completeness of the information furnished and shall have no
responsibility or liability for the manner in which such information is used or
its appropriateness for such use. GSOC shall have no liability to any third
party to which OPC may furnish this information or any excerpt therefrom or
summary thereof, and shall be entitled to receive appropriate assurances and
indemnities from OPC to that effect as a condition to providing such
information, provided that no such assurance or indemnity shall relieve GSOC of
liability to OPC for the accuracy and completeness of the information supplied.
4.17 GSOC's Information Obligations. GSOC is obligated to provide OPC or its
agent information concerning all services provided hereunder, and in such detail
and upon such frequency as OPC or its agent reasonably requests in connection
with those services furnished by OPC to GSOC pursuant to the Generation Service
Schedules.
4.18 Entire Agreement. This Agreement constitutes the entire agreement between
the Parties hereto relating to the subject matter contemplated by this Agreement
and supersedes all prior agreements, whether oral or written. The Generation
Service Schedules are incorporated herein by reference. All exhibits attached
hereto are incorporated herein by reference.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Generation
Services Agreement to be executed, attested, sealed and delivered by their
respective duly authorized officers as of the day and year first set forth
above.
OPC:
OGLETHORPE POWER CORPORATION
(An Electric Membership Generation & Transmission
Corporation)
[CORPORATE SEAL] By: /s/ J. Calvin Earwood
---------------------------------------------
J. Calvin Earwood
Chairman of the Board
ATTEST:
By: /s/ Gary M. Bullock
-------------------------
Gary M. Bullock
Secretary-Treasurer
GSOC:
GEORGIA SYSTEM OPERATIONS CORPORATION
[CORPORATE SEAL] By: /s/ James E. Estes
---------------------------------------------
James E. Estes
Chairman of the Board
ATTEST:
By: /s/ Patricia N. Nash
-------------------------
Patricia N. Nash
Assistant Secretary
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EXHIBIT 1
GENERATION SERVICES TO BE PROVIDED
UNDER GENERATION SERVICES AGREEMENT
1. OPC will provide the following Generation Services to
GSOC, to the extent that such Generation Services are
available, pursuant to the Generation Services
Agreement and the Generation Service Schedules:
1. Loss Compensation Service
2. Reactive Power and Voltage Control from Generation
Sources Service
3. Regulation and Frequency Response Service
4. Energy Imbalance Service
5. Operating Reserve - Spinning Reserve Service
6. Operating Reserve - Supplemental Reserve Service
2. GSOC will specify to OPC, on a transactional basis as
confirmed in a writing in a form mutually acceptable to the Parties, which of
the above Generation Services it requires and whether the service is required on
an ongoing basis or only for the duration of the transaction. GSOC recognizes
that such Generation Services may or may not be available for the duration
requested.
3. Other material terms:
None.
[Signatures appear on following page]
OPC:
OGLETHORPE POWER CORPORATION
(An Electric Membership Generation & Transmission
Corporation)
By: /s/ J. Calvin Earwood
------------------------------------------------
J. Calvin Earwood
Chairman of the Board
GSOC:
GEORGIA SYSTEM OPERATIONS CORPORATION
By: /s/ James E. Estes
------------------------------------------------
James E. Estes
Chairman of the Board
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