Exhibit 10(a)59
POWER PURCHASE AGREEMENT
between
GEORGIA POWER COMPANY
and
FLORIDA POWER CORPORATION
Dated as of December 3, 1993
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions . . . . . . . . . . . . . . . . 2
1.2 Interpretation . . . . . . . . . . . . . . . . . . 7
ARTICLE 2
TERM
2.1 Term . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 3
SYSTEM PEAKING CAPACITY
3.1 Guaranteed System Peaking Capacity . . . . . . . . 8
3.2 Capacity to be Purchased and Sold . . . . . . . . . 9
3.3 Advancement Option. . . . . . . . . . . . . . . . . 9
3.4 Termination Options. . . . . . . . . . . . . . . . 10
3.5 Calculation of Monthly Capacity Payments . . . . . 12
ARTICLE 4
ENERGY AVAILABILITY
4.1 Energy . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Scheduling of Energy . . . . . . . . . . . . . . . 13
4.3 Availability of Committed System Peaking Capacity . 13
4.4 Interconnection Points . . . . . . . . . . . . . . 13
4.5 Metering . . . . . . . . . . . . . . . . . . . . . 13
4.6 Calculation of Monthly Energy Payments . . . . . . 14
ARTICLE 5
BILLING AND COLLECTIONS
5.1 Capacity and Energy Billing and Payment . . . . . . 14
5.2 Billing Disputes and Final Accounting . . . . . . . 15
5.3 Interest . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 6
OPERATION AND MAINTENANCE
6.1 General Standards . . . . . . . . . . . . . . . . . 16
6.2 Standard of Performance of Obligations . . . . . . 16
6.3 Establishment of Operating Committee . . . . . . . 17
6.4 Responsibilities of the Peaking Capacity Operating
Committee . . . . . . . . . . . . . . . . . . . . . 17
6.5 Peaking Capacity Operating Committee Meetings . . . 18
ARTICLE 7
FORCE MAJEURE
7.1 Definition of Force Majeure Event . . . . . . . . . 19
7.2 No Breach or Liability . . . . . . . . . . . . . . 19
7.3 Mitigation . . . . . . . . . . . . . . . . . . . . 20
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7.4 Suspension of Performance . . . . . . . . . . . . . 20
7.5 Extended Force Majeure Events . . . . . . . . . . . 21
7.6 Capacity and Energy Payments during Force Majeure
Events . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 8
INABILITY TO MEET LEGAL REQUIREMENTS
8.1 Cure Period and Default. . . . . . . . . . . . . . 21
8.2 Mitigation. . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 9
CHANGES TO LEGAL REQUIREMENTS
9.1 Changes to Legal Requirements . . . . . . . . . . . 23
ARTICLE 10
REGULATORY APPROVALS
10.1 GPSC Approval . . . . . . . . . . . . . . . . . . . 24
10.2 FERC Approval . . . . . . . . . . . . . . . . . . . 26
ARTICLE 11
DEFAULT AND REMEDIES
11.1 Default by Seller . . . . . . . . . . . . . . . . . 28
11.2 Default by Buyer . . . . . . . . . . . . . . . . . 31
11.3 Remedies . . . . . . . . . . . . . . . . . . . . . 34
11.4 Suspension of Performance . . . . . . . . . . . . . 34
ARTICLE 12
REPRESENTATIONS, WARRANTIES AND COVENANTS
12.1 Representations, Warranties and Covenants of
Seller . . . . . . . . . . . . . . . . . . . . . . 35
12.2 Representations and Warranties of Buyer . . . . . . 37
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Interrelationship with Interchange Contract . . . . 39
13.2 Assignment and Assumption of Obligations . . . . . 40
13.3 No Consequential Damages . . . . . . . . . . . . . 40
13.4 Amendments . . . . . . . . . . . . . . . . . . . . 41
13.5 Binding Effect . . . . . . . . . . . . . . . . . . 41
13.6 Counterparts . . . . . . . . . . . . . . . . . . . 41
13.7 Notices . . . . . . . . . . . . . . . . . . . . . . 41
13.8 Entire Agreement . . . . . . . . . . . . . . . . . 42
13.9 Governing Law . . . . . . . . . . . . . . . . . . . 42
13.10 Waiver . . . . . . . . . . . . . . . . . . . . 43
13.11 Headings . . . . . . . . . . . . . . . . . . . 43
13.12 Third Parties . . . . . . . . . . . . . . . . 43
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13.13 Agency . . . . . . . . . . . . . . . . . . . . 44
13.14 Severability. . . . . . . . . . . . . . . . . 44
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EXHIBITS AND SCHEDULES
EXHIBIT A SYSTEM PEAKING UNITS
EXHIBIT B DISPATCH CHARACTERISTICS OF SYSTEM PEAKING
CAPACITY
SCHEDULE A MONTHLY CAPACITY PAYMENT CALCULATION
SCHEDULE B MONTHLY ENERGY PAYMENT CALCULATION
POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT ("Agreement"), dated as of
December 3, 1993, between GEORGIA POWER COMPANY, a corporation
organized and existing under the laws of the State of Georgia
("Buyer") and FLORIDA POWER CORPORATION, a corporation organized
and existing under the laws of the State of Florida ("Seller").
W I T N E S E T H:
WHEREAS, Buyer is authorized by its Certificate of
Incorporation and by the State of Georgia to engage in the
generation, transmission, sale and distribution of electricity;
WHEREAS, Seller is authorized by its Certificate of
Incorporation and by the State of Florida to engage in the
generation, transmission, sale and distribution of electricity;
WHEREAS, Buyer and Seller, together with Alabama Power
Company, Gulf Power Company, Mississippi Power Company, Savannah
Electric and Power Company and Southern Company Services, Inc.
are parties to an Interchange Contract dated December 22, 1988,
as amended ("Interchange Contract"); and
WHEREAS, Buyer desires to purchase and Seller desires to
sell peaking capacity and associated energy from peaking units on
Seller's electric system in designated amounts during the periods
specified herein;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises,
the mutual promises and agreements set forth herein and other
good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, Buyer and Seller each
intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. In addition to the initially
capitalized terms and phrases defined in the preamble of this
Agreement, the following initially capitalized terms and phrases
as and when used in this Agreement shall have the respective
meanings set forth below:
1.1.1 "Actual Demand Availability" - has the meaning
defined in Schedule A attached hereto and by this reference
incorporated herein.
1.1.2 "Affiliate" - of any specified entity means any
other entity directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
entity. For purposes of this definition, "control" when used
with respect to any entity means the power to direct the
management and policies of such entity, directly or indirectly,
whether through the ownership of voting securities, by contract
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or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
1.1.3 "Commencement of Service Date" - means June 1,
1996 unless Buyer exercises its advancement option pursuant to
Section 3.3, in which case the Commencement of Service Date shall
be June 1, 1995.
1.1.4 "Committed System Peaking Capacity" - means the
amount of Guaranteed System Peaking Capacity which Buyer agrees
to purchase during a Summer Period pursuant to Sections 3.2 and
3.3.
1.1.5 "Cumulative Escalation for Fixed O&M" - has the
meaning defined in Schedule A.
1.1.6 "Day" - means a calendar day.
1.1.7 "Event of Default" - has the meanings ascribed
to it in Section 11.1 for Seller and Section 11.2 for Buyer.
1.1.8 "FERC" - means the Federal Energy Regulatory
Commission or any Governmental Authority succeeding to the powers
and functions thereof as relevant to this Agreement.
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1.1.9 "Force Majeure Event" - has the meaning defined
in Section 7.1.
1.1.10 "GPSC" - means the Georgia Public Service
Commission or any Governmental Authority succeeding to the powers
and functions thereof as relevant to this Agreement.
1.1.11 "Governmental Authority" - means any local,
state, regional or federal administrative, legal, judicial or
executive agency, court, commission, department or other such
entity, but excluding any such agency, court, commission,
department or other such entity acting in its capacity as lender,
guarantor or mortgagor.
1.1.12 "Guaranteed System Peaking Capacity" - means
the capacity of the System Peaking Units that Seller guarantees
will be available to Buyer at a demand availability rate of 98%
at those times and in those amounts specified in Section 3.1.
1.1.13 "Interconnection Points" - means one or more of
the points of interconnection specified in Section 4.4 of this
Agreement for the delivery to Buyer of the energy associated with
the Committed System Peaking Capacity.
1.1.14 "Legal Requirement" - means any law, code,
statute, regulation, rule, ordinance, judgment, injunction, order
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or other requirement of a Governmental Authority having
jurisdiction over the matter in question, which is valid and
applicable to the matter in question at the time of the execution
of this Agreement or anytime thereafter during the Term.
1.1.15 "Month" - means a calendar month, commencing at
the beginning of the first Day of such calendar month. "Monthly"
- - has a meaning correlative to that of Month.
1.1.16 "Monthly Capacity Payment" - for a particular
Month of a Summer Period, means the Monthly amount to be paid by
Buyer to Seller for Buyer's purchase of Committed System Peaking
Capacity, as the same is calculated by Seller as provided in
Section 3.5 and Schedule A.
1.1.17 "Monthly Energy Payment" - for a particular
Month of a Summer Period, means the Monthly amount to be paid by
Buyer to Seller for Buyer's purchase of energy associated with
the Committed System Peaking Capacity, as the same is calculated
by Seller as provided in Section 4.6 and Schedule B attached
hereto and by this reference incorporated herein.
1.1.18 "Monthly Maximum Capacity Payment" - has the
meaning defined in Schedule A.
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1.1.19 "Party" - means either Buyer or Seller and
their respective successors and assigns.
1.1.20 "Penalty Interest Rate" - means one hundred and
five percent (105%) of the prime rate quoted on the date a
payment is due by Chemical Bank in New York, New York.
1.1.21 "Prudent Utility Practices" - means, at a
particular time, any of the practices, methods and acts engaged
in or approved by a significant portion of the electric utility
industry prior to such time, or any of the practices, methods and
acts which, in the exercise of reasonable judgment in light of
the facts known at the time the decision was made, could have
been expected to accomplish the desired results at a reasonable
cost consistent with good business practices, reliability, safety
and expedition. Prudent Utility Practices is not intended to be
limited to the optimum practice, method or act to the exclusion
of all others, but rather to be a spectrum of possible practices,
methods or acts expected to accomplish the desired results,
having due regard for, among other things, manufacturers'
warranties and the requirements of Governmental Authorities of
competent jurisdiction and the requirements of this Agreement.
1.1.22 "Summer Period" - means the Months of June,
July, August and September in each of the Years during the Term
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in which Buyer purchases Committed System Peaking Capacity from
Seller.
1.1.23 "System Peaking Units" - means those certain
combustion turbine electric generating units referred to on
Exhibit A attached hereto and by this reference incorporated
herein.
1.1.24 "Term" - means the term of this Agreement as
specified in Article 2.
1.1.25 "Termination of Service Date" - means
September 30, 1999 unless this Agreement is earlier terminated in
accordance with its terms.
1.1.26 "Year" - means a calendar year, commencing on
January 1 of a year and ending on December 31 of that year.
1.2 Interpretation. In this Agreement and the Exhibits and
the Schedules attached hereto, unless the context otherwise
requires:
1.2.1 words generally importing the singular shall
include the plural and vice versa;
1.2.2 references to "entity" include, without
limitation, corporations, partnerships, associations and
Governmental Authorities.
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ARTICLE 2
TERM
2.1 Term. This Agreement shall become effective when
executed by both Buyer and Seller and shall remain in full force
and effect until the Termination of Service Date. Applicable
provisions of this Agreement shall continue in effect after
termination of this Agreement to the extent necessary to provide
for final billings and adjustments.
ARTICLE 3
SYSTEM PEAKING CAPACITY
3.1 Guaranteed System Peaking Capacity. The Guaranteed
System Peaking Capacity shall be as follows during the periods
indicated:
Period Guaranteed System
Peaking Capacity
June 1, 1995 - September 30, 1995 300 MW
June 1, 1996 - September 30, 1996 500 MW
June 1, 1997 - September 30, 1997 400 MW
June 1, 1998 - September 30, 1998 200 MW
June 1, 1999 - September 30, 1999 200 MW
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3.2 Capacity to be Purchased and Sold.
3.2.1 Except as provided in Section 3.3, Buyer shall
provide Seller written notice by May 31 of the Year preceding
each Summer Period of the amount of Guaranteed System Peaking
Capacity which Buyer desires to purchase from Seller during such
Summer Period. The amount of Guaranteed System Peaking Capacity
which Buyer requests be made available to Buyer during a Summer
Period shall be referred to herein as "Committed System Peaking
Capacity".
3.2.2 Subject to Buyer's right to terminate this
Agreement pursuant to Section 3.4, Buyer agrees that the minimum
amounts of Committed System Peaking Capacity shall be 400 MW in
each Month of the 1996 Summer Period, 300 MW in each Month of the
1997 Summer Period, 150 MW in each Month of the 1998 Summer
Period and 150 MW in each Month of the 1999 Summer Period.
3.2.3 Seller agrees to sell and Buyer agrees to
purchase the Committed System Peaking Capacity and any energy
associated therewith which shall be delivered to and measured at
one of more of the Interconnection Points.
3.3 Advancement Option. Buyer shall have the option,
exercisable in its sole discretion, to commence taking Guaranteed
System Peaking Capacity in an amount up to 300 MW, for the period
June 1, 1995 through September 30, 1995, upon advance written
notice to Seller by December 31, 1994 of the amount of Committed
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System Peaking Capacity that Buyer agrees to purchase during such
period.
3.4 Termination Options.
3.4.1 Buyer may terminate this Agreement at any time
prior to December 31, 1994 upon prior written notice to Seller
and payment to Seller of a termination fee in the amount of
$100,000, and neither Buyer nor Seller shall have any further
obligations to the other hereunder upon such termination.
3.4.2 Between January 1, 1995 and May 31, 1996 Buyer
may cancel its obligation to purchase Committed System Peaking
Capacity in the 1997, 1998 and 1999 Summer Periods upon prior
written notice to Seller and payment to Seller of a termination
fee in an amount of the sum of (i) the product of .50 times the
sum of the Monthly Maximum Capacity Payments for each Month of
the 1997 Summer Period (assuming Committed System Peaking
Capacity is 400 MW; Cumulative Escalation for Fixed O&M has a
maximum value as of January 1 of the Year in which Buyer gives
its cancellation notice to Seller; and Actual Demand Availability
is 1.0), plus (ii) the product of .25 times the sum of the
Monthly Maximum Capacity Payments for each Month of the 1998
Summer Period (assuming Committed System Peaking Capacity is 200
MW; Cumulative Escalation for Fixed O&M has a maximum value as of
January 1 of the Year in which Buyer gives its cancellation
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notice to Seller; and Actual Demand Availability is 1.0), plus
(iii) the product of .25 times the sum of the Monthly Maximum
Capacity Payments for each Month of the 1999 Summer Period
(assuming Committed System Peaking Capacity is 200 MW; Cumulative
Escalation for Fixed O&M has a maximum value as of January 1 of
the Year in which Buyer gives its cancellation notice to Seller;
and Actual Demand Availability is 1.0).
3.4.3 Between June 1, 1996 and May 31, 1997 Buyer may
cancel its obligation to purchase Committed System Peaking
Capacity in the 1998 and 1999 Summer Periods upon prior written
notice to Seller and payment to Seller of a termination fee in
the amount of the sum of (i) the product of .50 times the sum of
the Monthly Maximum Capacity Payments for each Month of the 1998
Summer Period (assuming Committed System Peaking Capacity is
200 MW; Cumulative Escalation for Fixed O&M has a maximum value
as of January 1 of the Year in which Buyer gives its cancellation
notice to Seller; and Actual Demand Availability is 1.0), plus
(ii) the product of .25 times the sum of the Monthly Maximum
Capacity Payments for each Month of the 1999 Summer Period
(assuming Committed System Peaking Capacity is 200 MW; Cumulative
Escalation for Fixed O&M has a maximum value as of January 1 of
the Year in which Buyer gives its cancellation notice to Seller;
and Actual Demand Availability is 1.0).
3.4.4 Between June 1, 1997 and May 31, 1998 Buyer may
cancel its obligation to purchase Committed System Peaking
Capacity in the 1999 Summer Period upon prior written notice to
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Seller and payment to Seller of a termination fee in the amount
of .50 times the sum of the Monthly Maximum Capacity Payments for
each Month of the 1999 Summer Period (assuming Committed System
Peaking Capacity is 200 MW; Cumulative Escalation for Fixed O&M
has a maximum value as of January 1 of the Year in which Buyer
gives its cancellation notice to Seller; and Actual Demand
Availability is 1.0).
3.5 Calculation of Monthly Capacity Payments. Buyer shall
pay Seller for each Month of a Summer Period a Monthly Capacity
Payment which shall be calculated in accordance with Schedule A.
ARTICLE 4
ENERGY AVAILABILITY
4.1 Energy. During a Summer Period, Buyer will be entitled
to schedule energy in amounts up to the Committed System Peaking
Capacity for such Summer Period on an hourly basis subject only
to the dispatch restrictions set forth on Exhibit B attached
hereto and by this reference incorporated herein. All scheduling
times specified herein are based on established practices and
procedures between the Parties and are subject to change upon
mutual agreement of the Parties. All times specified herein
shall be prevailing Central Time unless otherwise agreed.
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4.2 Scheduling of Energy. Buyer shall provide Seller on or
before 1:30 p.m. of the Friday prior to the commencement of each
week during a Summer Period, an estimated schedule of capacity
usage for each hour of each Day of the following week.
4.3 Availability of Committed System Peaking Capacity.
Committed System Peaking Capacity shall be available to Buyer for
scheduling and dispatch during a Summer Period at a demand
availability rate of 98% twenty-four (24) hours a Day and seven
(7) Days a week.
4.4 Interconnection Points. Seller shall deliver the
energy scheduled by Buyer hereunder to one or more of the points
of delivery listed on that certain Exhibit A to the Interchange
Contract or such other delivery points on the Buyer's
transmission system as Seller may arrange from time to time with
the prior consent of Buyer, which such consent shall not be
unreasonably withheld.
4.5 Metering. Metering of Committed System Peaking
Capacity and energy associated therewith shall be done in
accordance with Article VI of the Interchange Contract, Delivery
Points and Metering.
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4.6 Calculation of Monthly Energy Payments. Buyer shall
pay Seller for each Month of a Summer Period a Monthly Energy
Payment which shall be calculated in accordance with Schedule B.
ARTICLE 5
BILLING AND COLLECTIONS
5.1 Capacity and Energy Billing and Payment.
5.1.1 By the (10th) tenth Day after each Month in a
Summer Period, Seller shall send Buyer an invoice stating the
Monthly Capacity Payment and Monthly Energy Payment for the
immediately previous Month. Each Monthly invoice shall contain a
statement explaining in reasonable detail how the invoice was
calculated pursuant to Sections 3.5 and 4.6.
5.1.2 All such invoices of capacity payments and
energy payments shall be due and payable by Buyer on or before
the twentieth (20th) Day after the postmark date of such invoice.
If any such twentieth (20th) Day is not a banking Day in either
Georgia or Florida, then payment shall be due on the next
succeeding common banking Day. Buyer shall make payment to
Seller in accordance with such invoices on or before the date due
in immediately available funds, through wire transfer of funds to
an account designated by Seller, or other means acceptable to
Seller. Remittance received by mail will be accepted without
interest charges if such payment is postmarked on or before the
due date.
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5.2 Billing Disputes and Final Accounting. If Buyer
reasonably questions or contests the amount of any payment
claimed by Seller to be due pursuant to this Agreement, Buyer
shall provide Seller with written notice of the disputed amount.
Buyer shall make payment to Seller of amounts not in dispute, but
may withhold disputed amounts until after the settlement of such
question or contest. Seller shall promptly review the amount of
any payment disputed by Buyer and shall notify Buyer of the
amount of any error and the amount of any payment that Buyer is
required to make in respect of such alleged error. Not later
than the twentieth (20th) Day after a billing dispute is resolved
and receipt by Buyer of notice from Seller as to the amount of
any payment that Buyer is required to make, Buyer shall make
payment to Seller in immediately available funds. Payments made
by the Buyer under this Section 5.2 shall include interest from
the date the original payment was due until the date such payment
together with interest is made, which interest shall accrue in
simple interest terms at the prime rate quoted on the date a
payment is due by Chemical Bank in New York, New York.
Buyer shall have until the end of one (1) year after its
receipt of any invoice to question or contest the correctness of
any charge or credit made to Buyer on such invoice. Seller shall
make available to Buyer at Seller's offices, after reasonable
notice, such books and records as were necessary for Seller to
calculate the Monthly Capacity Payment and the Monthly Energy
Payment shown on Seller's invoice to allow Buyer to verify the
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accuracy of the amounts billed to Buyer on Seller's invoice. If
an invoice has not been questioned or contested by Buyer during
this one (1) year period, such invoice shall become final for all
purposes and no longer subject to adjustment.
5.3 Interest. If Buyer or Seller does not make a payment
required by this Agreement when due, then interest shall be added
to the overdue payment from the date such overdue payment was due
until such overdue payment together with interest is paid, which
interest shall accrue in simple interest terms per annum at the
Penalty Interest Rate.
ARTICLE 6
OPERATION AND MAINTENANCE
6.1 General Standards. Seller shall construct, own,
operate and maintain the System Peaking Units and all components
of Seller's transmission system which directly affect Seller's
obligations to supply Committed System Peaking Capacity and to
deliver associated energy hereunder in a manner consistent with
Prudent Utility Practices and in accordance with operating and
interconnection procedures in existence from time to time between
Buyer and Seller.
6.2 Standard of Performance of Obligations. In connection
with the construction, operation and maintenance of the System
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Peaking Units and those components of Seller's transmission
system which directly affect Seller's obligations to supply
Committed System Peaking Capacity and to deliver associated
energy hereunder, Seller's standard of management and performance
during the Term shall be at least equal to the standard which it
would use if those System Peaking Units and components were
solely for the benefit of its own territorial customers.
6.3 Establishment of Operating Committee. Buyer and Seller
shall each appoint one representative ("Operating
Representative") to act for it in matters pertaining to detailed
operating arrangements for delivery of power hereunder, and the
Buyer and Seller may each appoint an alternate to act for it in
the absence of its Operating Representative. The two Operating
Representatives, or their alternates, comprise and shall be
referred to as the "Peaking Capacity Operating Committee".
Evidence of such appointment shall be given by written notice to
the other Party, and such appointments may be changed at any time
by similar notice.
6.4 Responsibilities of the Peaking Capacity Operating
Committee. The Peaking Capacity Operating Committee shall be
responsible for the following:
(1) Establishment of procedures for communications
with respect to energy availability and scheduling under Article
4.
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(2) Establishment of arrangements for metering,
telemetering, computer data link, telecommunications, data
acquisition, etc., associated with the supply of capacity and
delivery of energy hereunder.
(3) Establishment of control and operating procedures.
(4) Establishment of ramping levels and procedures for
the energy scheduled hereunder.
(5) Such other duties as may be conferred upon it by
mutual agreement of Buyer and Seller.
Both Buyer and Seller shall cooperate in providing to the Peaking
Capacity Operating Committee all information required in the
performance of its duties. If the Peaking Capacity Operating
Committee is unable to agree on any matter falling under its
jurisdiction, such matter shall be referred by the
representatives to their principals for decision. Failure of the
principals to agree on any matter referred to them shall not
constitute a basis for termination of this Agreement. All
decisions and agreements made by the Peaking Capacity Operating
Committee with respect to matters falling under its jurisdiction
shall be evidenced in writing.
6.5 Peaking Capacity Operating Committee Meetings. The
Peaking Capacity Operating Committee shall hold an annual meeting
at a time and place agreed upon by its members and review the
duties set forth herein. When requested by either Buyer or
Seller, the Peaking Capacity Operating Committee shall also meet
at the earliest opportunity for consideration of matters under
its jurisdiction.
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ARTICLE 7
FORCE MAJEURE
7.1 Definition of Force Majeure Event. For the purposes of
this Agreement, a "Force Majeure Event" as to a Party means any
occurrence, nonoccurrence or set of circumstances that is
unforeseeable and beyond the reasonable control of such Party,
including without limitation, flood, ice, earthquake, windstorm
or eruption; fire or explosion; invasion, civil war, strike,
commotion or insurrection; sabotage or vandalism; military or
usurped power; or act of God or of a public enemy; provided,
however, in no event shall the inability to meet a Legal
Requirement constitute a Force Majeure Event.
7.2 No Breach or Liability.
7.2.1 Seller shall not be responsible or liable for or
deemed in breach or default hereof because of any delay in
performance of, or inability to perform, its obligations
hereunder, including, without limitation, Seller's obligations
under Articles 3 and 4 hereof, due to or resulting from a Force
Majeure Event affecting Seller or to any act or omission of
Buyer.
7.2.2 Buyer shall not be responsible or liable for or
deemed in breach or default hereof because of any delay in
performance of, or inability to perform, its obligations
hereunder due to or resulting from a Force Majeure Event
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affecting Buyer or to any act or omission of Seller; provided,
however, that Buyer shall not be relieved of its obligation to
pay for Committed System Peaking Capacity and associated energy
actually received by Buyer hereunder.
7.3 Mitigation. Following the occurrence of a Force
Majeure Event, the affected Party shall:
7.3.1 give the other Party notice thereof, followed by
written notice if the first notice is not written, as promptly as
practicable after such Party becomes aware of such Force Majeure
Event, describing the particulars of such Force Majeure Event;
7.3.2 use its reasonable best efforts to remedy its
inability to perform as soon as practicable, provided that
neither Party shall be required to settle a strike on terms which
in the sole judgment of the affected Party are contrary to its
interests; and
7.3.3 when it is able to resume performance of its
obligations under this Agreement, give the other Party written
notice to that effect.
7.4 Suspension of Performance. The suspension of
performance due to a Force Majeure Event shall be of no greater
scope and of no larger duration than is required by such Force
Majeure Event. No Force Majeure Event shall extend this
Agreement beyond its stated Term.
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7.5 Extended Force Majeure Events. If any Force Majeure
Event delays a Party's performance for a time period greater than
sixty (60) Days, the Party not delayed by such Force Majeure
Event may terminate this Agreement, without further obligation,
or extend such period at its sole discretion if the Party delayed
by such Force Majeure Event is exercising due diligence in its
efforts to cure the Force Majeure Event.
7.6 Capacity and Energy Payments during Force Majeure
Events. Buyer shall be relieved of its obligation to make
Monthly Capacity Payments and Monthly Energy Payments during the
suspension of performance due to or resulting from a Force
Majeure Event affecting Seller to the extent capacity and energy
are unavailable to Buyer during such Force Majeure Event;
provided, however, that Buyer shall not be relieved of its
obligation to pay Seller for Committed System Peaking Capacity
and associated energy actually received by Buyer prior to and
during such Force Majeure Event.
ARTICLE 8
INABILITY TO MEET LEGAL REQUIREMENTS
8.1 Cure Period and Default. In the event Seller is unable
to perform its obligations hereunder due to its inability to meet
a Legal Requirement, Seller shall be excused from performance of
its obligation to supply Committed System Peaking Capacity and to
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deliver associated energy to Buyer through the Summer Period
which commences after the effectiveness of the Legal Requirement
prohibiting performance. Notwithstanding the foregoing sentence,
if within one (1) year of the effectiveness of the Legal
Requirement which renders Seller unable to perform its
obligations hereunder Seller is unable to demonstrate to the
reasonable satisfaction of Buyer that Seller is able to perform
its obligations for the remainder of the Term, Buyer may declare
Seller in default hereunder and pursue the remedies set forth in
Section 11.3. Buyer shall be relieved of its obligation to make
Monthly Capacity Payments and Monthly Energy Payments during the
suspension of performance due to Seller's inability to meet a
Legal Requirement to the extent capacity and energy are
unavailable to Buyer during such suspension of performance;
provided that Buyer shall not be relieved of its obligation to
pay Seller for Committed System Peaking Capacity and associated
energy actually received by Buyer prior to and during such
suspension of performance.
8.2 Mitigation. Following the effectiveness of a Legal
Requirement which renders Seller unable to perform its
obligations hereunder, Seller shall:
8.2.1 give Buyer notice as promptly as practicable
after Seller becomes aware that such Legal Requirement will
prohibit Seller from performing during the Summer Period
following the effectiveness of such Legal Requirement; and
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8.2.2 use its reasonable best efforts to remedy its
inability to perform as soon as practicable, including, without
limitation, the payment of all amounts necessary or appropriate
to remedy such inability.
ARTICLE 9
CHANGES TO LEGAL REQUIREMENTS
9.1 Changes to Legal Requirements. In the event that after
the date of this Agreement there are changes to Legal
Requirements, including, without limitation, changes to
environmental laws or regulations, or tax laws or regulations,
which cause Seller to incur additional costs in carrying out its
obligations under this Agreement, Seller agrees to pay all costs
associated with such changes to Legal Requirements and
acknowledges that the capacity and energy payments made by Buyer
to Seller pursuant to this Agreement shall not be altered as a
result of such changes to Legal Requirements. Notwithstanding
the foregoing sentence, Buyer agrees that changes to Legal
Requirements which result in increases in the fuel prices
reported in Platt's Oilgram Price Report (or such other fuel
index as may be agreed to by the Parties) shall be paid by Buyer
in accordance with the Monthly Energy Payment calculation set
forth on Schedule B.
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ARTICLE 10
REGULATORY APPROVALS
10.1 GPSC Approval.
10.1.1 GPSC approval of this Agreement shall be a
condition precedent to Buyer's and Seller's obligations to
purchase and sell capacity and energy hereunder.
10.1.2 Buyer shall use its reasonable best efforts to
obtain and maintain in effect during the Term an order of the
GPSC approving this Agreement and the recovery by Buyer from its
customers of all payments required or contemplated to be made to
Seller pursuant to Sections 3.5 and 4.6 of this Agreement.
Seller agrees to use its reasonable best efforts to assist Buyer
in obtaining GPSC approval and to comply with any reasonable
request for information of the GPSC pertaining to any aspect of
the power purchase; provided, however, that Seller shall have no
obligation to supply confidential, proprietary, privileged or
commercially sensitive information without assurances reasonably
satisfactory to Seller, in its sole discretion, that
confidentiality will be protected.
10.1.3 Notwithstanding the foregoing, if the GPSC has
not issued a final non-appealable order in form and substance
satisfactory to Buyer and Seller approving this Agreement within
twelve (12) months after the filing of this Agreement with the
GPSC, then either Party may thereafter terminate this Agreement
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upon prior written notice to the other Party, and neither Party
shall have any further liability to the other hereunder.
10.1.4 If at any time after the initial approval of
this Agreement and the rates charged hereunder, Buyer,
notwithstanding its obligations pursuant to Section 10.1.2, is
denied the authorization by the GPSC to recover from its
customers any or all of the payments made or contemplated to be
made to Seller pursuant to Sections 3.5 and 4.6 due to Buyer's
malfeasance or intentional or wilful misconduct, Seller may
terminate this Agreement upon prior written notice to Buyer, and
neither Party shall have any further liability to the other
hereunder. Buyer agrees to use its reasonable best efforts to
exhaust all opportunities for administrative and judicial appeal
of any such GPSC determination.
10.1.5 If at any time after the initial approval of
this Agreement and the rates charged hereunder, Buyer,
notwithstanding its obligations pursuant to Section 10.1.2, is
denied the authorization by the GPSC to recover from its
customers any or all of the payments made or contemplated to be
made to the Seller pursuant to Sections 3.5 and 4.6 for any
reason other than Buyer's malfeasance or intentional or wilful
misconduct, Buyer may, prospectively from the final effective
date of such GPSC determination, adjust the payments to be made
under this Agreement to the amount which Buyer is authorized to
recover from its customers; provided, however, that Seller shall
have the right to terminate this Agreement twelve (12) months
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after the effective date of the GPSC determination and any time
thereafter upon prior written notice to Buyer. Buyer agrees to
use its reasonable best efforts to exhaust all opportunities for
administrative and judicial appeal of any such GPSC
determination.
10.2 FERC Approval.
10.2.1 FERC acceptance for filing of this Agreement
and authorization for the recovery by Seller of all payments and
charges to be made by Buyer under this Agreement, without a
refund condition, shall be a condition precedent to Buyer's and
Seller's obligations to purchase and sell capacity and energy
hereunder.
10.2.2 If Seller fails to tender this Agreement for
filing with the FERC within ninety (90) Days after the execution
of this Agreement, Seller shall pay Buyer an amount of $45,000
per Day by wire transfer within seventy-two (72) hours after the
end of each such Day until this condition has been met.
10.2.3 Seller shall use its reasonable best efforts to
obtain an order of the FERC accepting for filing this Agreement
and authorizing the recovery by Seller of all payments specified
in Sections 3.5 and 4.6 of this Agreement. Buyer agrees to use
its reasonable best efforts to assist Seller in obtaining FERC
acceptance for filing of this Agreement and the authorization of
the rates and charges hereunder.
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10.2.4 Notwithstanding the foregoing, if the FERC has
not issued a final non-appealable order in form and substance
satisfactory to Buyer and Seller accepting for filing this
Agreement and authorizing the rates and charges hereunder within
twelve (12) months after tender for filing of this Agreement with
the FERC, then either Party may thereafter terminate this
Agreement upon prior written notice to the other Party, and
neither Party shall have any further liability to the other
hereunder.
10.2.5 The Parties agree that the results of the
formulae provided in Schedules A and B shall constitute the rates
to be charged for Committed System Peaking Capacity and
associated energy hereunder and are fixed for the Term, subject
to change only by FERC under Section 206 of the Federal Power
Act. If the FERC seeks to amend the rates for Committed System
Peaking Capacity and energy under this Agreement, the Parties
intend that the FERC will make any such changes only under the
"public interest" standard, as opposed to a "just and reasonable
and non-discriminatory" standard. If, after the initial
acceptance for filing of this Agreement and the authorization of
the rates charged hereunder, FERC issues a rule, regulation,
order or other requirement which causes a reduction in the
capacity and energy rates charged under this Agreement, Seller
agrees to be bound by such reduction and agrees to prospectively
adjust the capacity and energy rates charged under this Agreement
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accordingly (subject however, to Seller's right to appeal such
rule, regulation, order or other requirement).
ARTICLE 11
DEFAULT AND REMEDIES
11.1 Default by Seller. The occurrence of any of the
following events at any time during the Term, unless caused by an
act or omission of Buyer or circumstances on Buyer's system or
unless due to or the result of a Force Majeure Event or an
excused suspension of performance due to Seller's inability to
meet a Legal Requirement pursuant to Section 8.1, shall
constitute an Event of Default by Seller:
11.1.1 Seller fails, following a prior request by
Buyer, to demonstrate to the reasonable satisfaction of Buyer
that Seller's electric system is capable of providing the
Committed System Peaking Capacity on any weekday from 12:00 noon
until 6:00 p.m. during the fourteen (14) Day period prior to the
Commencement of Service Date. If Buyer schedules energy during
this fourteen (14) Day period to assure demonstration of the
Committed System Peaking Capacity, Buyer shall pay for such test
energy at the rate set forth on Schedule B;
11.1.2 Seller fails for a period of five (5) or more
consecutive Days, during which time Buyer requests some positive
amount of energy for at least one (1) hour of each such Day, to
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deliver energy in at least one (1) hour of such period in the
amount requested by Buyer.
11.1.3 Seller fails to manage, control, operate and
maintain the System Peaking Units and all components of Seller's
transmission system which directly affect Seller's ability to
supply Committed System Peaking Capacity and to deliver
associated energy hereunder in accordance with Prudent Utility
Practices and the provisions of this Agreement and fails to
promptly commence and diligently pursue action to cure such
default after receipt of written demand therefor from Buyer;
11.1.4 Seller fails to pay an amount due and payable
to Buyer in accordance with Section 10.2.2;
11.1.5 Any representation or warranty made by Seller
herein shall prove to be incorrect in any material respect when
made, unless (i) the fact, circumstance or condition that is the
subject of such representation or warranty is made true within
thirty (30) Days after notice thereof has been given to Seller by
Buyer and (ii) such cure removes any adverse effect on Buyer of
such fact, circumstance or condition being otherwise than as
first represented, or unless such fact, circumstance or condition
being otherwise than as first represented does not materially
adversely affect Buyer;
11.1.6 A court having jurisdiction shall enter (i) a
decree or order for relief in respect of Seller in an involuntary
case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law, or
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(ii) a decree or order adjudicating Seller bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Seller
under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of Seller or of any substantial part of
its affairs; provided, however, that if Seller can demonstrate
that the bankruptcy, insolvency or reorganization is not likely
to lead to a rejection of this Agreement and Seller can still
perform under this Agreement, then such event shall not be deemed
an Event of Default;
11.1.7 Seller shall (i) commence a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or any other case
or proceeding to be adjudicated a bankrupt or insolvent, or
(ii) consent to the entry of a decree or order for relief in
respect of Seller in any involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or
(iii) file any petition, answer or consent seeking reorganization
or relief under any applicable Federal or state law, or
(iv) consent to the filing of any petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of Seller or
of any substantial part of its property, or (v) make an
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assignment for the benefit of creditors, or (vi) be unable, or
admit in writing its inability, to pay its debts as they become
due, or (vii) take any action in furtherance of any of the
foregoing; provided, however, that if Seller can demonstrate that
the bankruptcy, insolvency or reorganization is not likely to
lead to a rejection of this Agreement and Seller can still
perform under this Agreement, then such event shall not be deemed
an Event of Default; and
11.1.8 Seller fails in the performance or observance
of any material obligation of Seller under this Agreement, other
than those obligations included in this Section 11.1, the
occurrence of which default materially and adversely affects the
ability of Seller or Buyer to perform its respective obligations
under this Agreement and fails to promptly commence and
diligently pursue action to cure such default after receipt of
written demand therefor from Buyer.
11.2 Default by Buyer. The occurrence of any of the
following events at any time during the Term, unless caused by an
act or omission of Seller or unless due to or the result of a
Force Majeure Event shall constitute an Event of Default by
Buyer:
11.2.1 Buyer shall fail to pay pursuant to this
Agreement any sum due and payable to Seller hereunder which
failure has continued for thirty (30) Days after notice thereof
has been given by Seller to Buyer;
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11.2.2 Any representation or warranty made by Buyer
herein shall prove to be incorrect in any material respect when
made, unless (i) the fact, circumstance or condition that is the
subject of such representation or warranty is made true within
thirty (30) Days after notice thereof has been given to Buyer by
Seller and (ii) such cure removes any adverse effect on Seller of
such fact, circumstance or condition being otherwise than as
first represented, or unless such fact, circumstance or condition
being otherwise than as first represented does not materially
adversely affect Seller;
11.2.3 A court having jurisdiction shall enter (i) a
decree or order for relief in respect of Buyer in an involuntary
case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law, or
(ii) a decree or order adjudicating Buyer bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Buyer
under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of Buyer or of any substantial part of
its affairs; provided, however, that if Buyer can demonstrate
that the bankruptcy, insolvency or reorganization is not likely
to lead to a rejection of this Agreement and Buyer can still
perform under this Agreement, then such event shall not be deemed
an Event of Default;
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11.2.4 Buyer shall (i) commence a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or any other case
or proceeding to be adjudicated a bankrupt or insolvent, or
(ii) consent to the entry of a decree or order for relief in
respect of Buyer in any involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or
(iii) file any petition, answer or consent seeking reorganization
or relief under any applicable Federal or state law, or
(iv) consent to the filing of any petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of Buyer or
of any substantial part of its property, or (v) make an
assignment for the benefit of creditors, or (vi) be unable, or
admit in writing its inability, to pay its debts as they become
due, or (vii) take any action in furtherance of any of the
foregoing; provided, however, that if Buyer can demonstrate that
the bankruptcy, insolvency or reorganization is not likely to
lead to a rejection of this Agreement and Buyer can still perform
under this Agreement, then such event shall not be deemed an
Event of Default;
11.2.5 Buyer fails in the performance or observance of
any material obligation of Buyer under this Agreement, other than
those obligations included in this Section 11.2 the occurrence of
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which default materially and adversely affects the ability of
Buyer or Seller to perform its respective obligations under this
Agreement and fails to promptly commence and diligently pursue
action to cure such default after receipt of written demand
therefor from Seller.
11.3 Remedies. If an Event of Default has occurred and is
continuing, then the non-defaulting Party may, at its discretion,
take either or both of the following actions: (i) proceed by
appropriate proceedings, judicial, administrative or otherwise at
law, in equity or otherwise, to protect and enforce its rights,
to recover any damages to which it may be entitled, and to
enforce performance by the defaulting Party, including specific
performance of the defaulting Party's obligations hereunder; and
(ii) terminate this Agreement by giving written notice thereof to
the defaulting Party.
11.4 Suspension of Performance. In addition to the remedies
set forth above, whenever an Event of Default shall have occurred
and is continuing, the non-defaulting Party, to the extent
permitted by law, shall be entitled to suspend immediately its
performance under this Agreement until such Event of Default is
cured; provided, however, that Buyer shall not be relieved of its
obligation to pay Seller for Committed System Peaking Capacity
and associated energy actually received by Buyer (1) prior to
such Event of Default or (2) after such Event of Default if Buyer
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has not exercised its right to terminate this Agreement as
provided in Section 11.3.
ARTICLE 12
REPRESENTATIONS, WARRANTIES AND COVENANTS
12.1 Representations, Warranties and Covenants of Seller.
Seller hereby makes the following representations and warranties
to Buyer:
12.1.1 Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Florida, that it is qualified to do business in the State of
Florida and that it has the power and authority to own its
properties, to carry on its business as now being conducted and
to enter into this Agreement and carry out the transactions
contemplated hereby and perform and carry out all covenants and
obligations on its part to be performed under and pursuant to
this Agreement.
12.1.2 The execution, delivery and performance by the
Seller of this Agreement have been duly authorized by all
necessary corporate action, and do not and will not require any
consent or approval of the Seller's Board of Directors or
shareholders.
12.1.3 The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and the
fulfillment of and compliance with the provisions of this
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Agreement, do not and will not conflict with or constitute a
breach of or a default under, any of the terms, conditions or
provisions of any Legal Requirements, or any partnership
agreement, deed of trust, mortgage, loan agreement, other
evidence of indebtedness or any other agreement or instrument to
which the Seller is a party or by which it or any of its property
is bound, or result in a breach of or a default under any of the
foregoing.
12.1.4 This Agreement is the legal, valid and binding
obligation of the Seller enforceable in accordance with its
terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws relating
to or affecting the enforcement of creditors' rights generally or
by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
12.1.5 There is no pending, or to the knowledge of
Seller, threatened action or proceeding affecting Seller before
any Governmental Authority which purports to affect the legality,
validity or enforceability of this Agreement as in effect on the
date hereof.
12.1.6 Seller covenants to Buyer that it will at all
times during the Term pay all charges, taxes, assessments and
fees which may be assessed upon Seller or Buyer by reason of the
sale or purchase of Committed System Peaking Capacity and
associated energy hereunder.
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12.1.7 Seller covenants that as of the Commencement of
Service Date and for the Term, Seller shall (i) be in substantial
compliance with all Legal Requirements with respect to the
construction, ownership, operation and maintenance of the System
Peaking Units and all components of Seller's transmission system
which directly affect Seller's obligations to supply Committed
System Peaking Capacity and associated energy hereunder,
including without limitation, all relevant requirements to seek,
obtain, maintain, comply with and, as necessary, renew and modify
from time to time, any and all applicable certificates, licenses,
permits and government approvals and all applicable environmental
certificates, licenses, permits and approvals, and (ii) except as
provided in Section 9.1, with respect to fuel prices reported in
Platt's Oilgram Price Report, pay all costs, expenses, charges
and fees in connection therewith.
12.2 Representations and Warranties of Buyer. Buyer hereby
makes the following representations and warranties to Seller:
12.2.1 Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Georgia, has the corporate power and authority to own its
properties, to carry on its business as now being conducted and
to enter into this Agreement and carry out the transactions
contemplated hereby and perform and carry out all covenants and
obligations on its part to be performed pursuant to this
Agreement.
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12.2.2 The execution, delivery and performance by the
Buyer of this Agreement have been duly authorized by all
necessary corporate action, and do not and will not require any
consent or approval of the Buyer's Board of Directors or
shareholders.
12.2.3 The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and the
fulfillment of the compliance with the provisions of this
Agreement will not conflict with or constitute a breach of or a
default under, any of the terms, conditions, or provisions of any
Legal Requirements, the certificate of incorporation or by-laws
of Buyer, or any contractual limitation, corporate restriction or
outstanding trust indenture, deed or trust, mortgage, loan
agreement, other evidence of indebtedness or any other agreement
or instrument to which Buyer is a party or by which it or any of
its property is bound or result in a breach of or default under
any of the foregoing.
12.2.4 This Agreement is the legal, valid and binding
obligation of the Buyer enforceable in accordance with its terms
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or
affecting the enforcement of creditors' rights generally or by
general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
12.2.5 There is no pending, or to the knowledge of
Buyer, threatened action or proceeding affecting Buyer before any
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Governmental Authority which purports to affect the legality,
validity or enforceability of this Agreement as in effect on the
date hereof.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Interrelationship with Interchange Contract.
13.1.1 It is recognized by the Parties that the
Interchange Contract as in effect from time to time between the
Parties governs the interconnected operations of the Parties
necessary for conduct of the transactions contemplated hereunder.
To the extent not inconsistent herewith, the Interchange
Contract, including any amendments thereto, shall govern the
operations of the Parties hereunder.
13.1.2 In the event such Interchange Contract is
terminated or cancelled during the Term, the provisions of such
Interchange Contract which are essential for the continuation of
transactions hereunder shall survive the termination or
cancellation of such Interchange Contract.
13.1.3 The Parties acknowledge and agree that the
following provisions of the Interchange Contract are inconsistent
with provisions set forth in this Agreement and that the terms
and conditions of this Agreement which address the topics of the
listed provisions shall govern the operation of the Parties
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hereunder and that the listed provisions shall not apply to this
Agreement:
Article IV Services to be Rendered.
Article VIII Billing and Payment.
Section 10.2 Force Majeure.
Section 10.4 Regulation.
Section 10.8 Tax Adjustment.
13.2 Assignment and Assumption of Obligations. Neither
Party shall assign this Agreement or any portion thereof without
the prior written consent of the other Party (except that Buyer
may assign this Agreement or any portion thereof to any Affiliate
of the Buyer without the consent of Seller); but provided,
further that: (i) any assignee shall expressly assume assignor's
obligations hereunder and (ii) unless expressly approved by the
other Party to this Agreement, which approval shall not be
unreasonably withheld, no assignment, whether or not consented
to, shall relieve the assignor of its obligations hereunder in
the event its assignee fails to perform.
13.3 No Consequential Damages. Notwithstanding any other
provision of this Agreement, neither Buyer nor Seller shall be
liable to the other for special, indirect, incidental or
consequential damages under, arising out of, due to or in
connection with its performance or non-performance of this
Agreement or any of its obligations herein, whether based on
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contract, tort (including without limitation negligence), strict
liability, warranty or otherwise.
13.4 Amendments. This Agreement may be amended by and only
by a written instrument duly executed by each of Buyer and
Seller, which has received all approvals of Governmental
Authorities of competent jurisdiction necessary for the
effectiveness thereof.
13.5 Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the Parties and their
respective successors and assigns.
13.6 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all
of which shall constitute but one and the same instrument.
13.7 Notices. Where written notice is required by this
Agreement, such notice shall be in writing and shall be deemed
given (i) when mailed by United States registered or certified
mail, postage prepaid, return receipt requested, addressed as
follows:
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To Seller: Florida Power Corporation
6565 38th Avenue North
St. Petersburg, Florida 33710
Attn: Director, Energy Control
To Buyer: Bulk Power Markets
Georgia Power Company
333 Piedmont Avenue
Atlanta, Georgia 30308
Attn: Manager, Purchased Power
or to such other address as may be designated by the Parties; or
(ii) when sent by telecopy, provided such telecopy is confirmed
by mailing a hard copy confirmation, as provided in clause (i)
above, within one business Day after the sending of the telecopy.
13.8 Entire Agreement. This Agreement constitutes the
entire understanding between the Parties as to the subject matter
hereof and supersedes any previous agreements between the Parties
relating to such subject matter. The Parties have entered into
this Agreement in reliance upon the representations and mutual
undertakings contained herein and not in reliance upon any oral
or written representations or information provided by one Party
to the other Party not contained or incorporated herein.
13.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
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13.10 Waiver. The failure of either Party to enforce at
any time any of the provisions of this Agreement, or to acquire
at any time performance by the other Party of any of the
provisions hereof, shall in no way be construed to be a waiver of
such provisions, nor in any way to affect the validity of this
Agreement or any part hereof, or the right of such Party
hereafter to enforce every such provision. No modification or
waiver of all or any part of this Agreement shall be valid unless
reduced to a writing, which expressly states that the Parties
hereby agree to a waiver or modification as applicable, and is
signed by both Parties.
13.11 Headings. The headings contained in this
Agreement are used solely for convenience and do not constitute a
part of the Agreement between the Parties hereto, nor should they
be used to aid in any manner in the construction of this
Agreement.
13.12 Third Parties. This Agreement is intended solely
for the benefit of the Parties hereto. Except as otherwise
expressly provided herein, nothing in this Agreement shall be
construed to create any duty to, or standard of care with
reference to, or any liability to, any person not a Party to this
Agreement.
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13.13 Agency. This Agreement shall not be interpreted
or construed to create an association, joint venture, or
partnership between the Parties or to impose any partnership
obligation or liability upon either Party. Neither Party shall
have any right, power or authority to enter into any agreement or
undertaking for, or act on behalf of, or to act as or be an agent
or representative of, or to otherwise bind, the other Party.
13.14 Severability. Subject only to the right of Buyer
or Seller to terminate this Agreement pursuant to Sections 10.1.3
and 10.2.4, if any term or provision of this Agreement or the
application thereof to any person, entity, or circumstance shall
to any extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to
persons, entities or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned Parties hereto have duly
executed this Agreement as of the date first above written.
GEORGIA POWER COMPANY
"Buyer"
_________________________________
By:______________________________
Title:________________________
_________________________________
Attest:__________________________
Title:________________________
[SEAL]
FLORIDA POWER CORPORATION
"Seller"
___________________________________
By:________________________________
Title:_____________________________
___________________________________
Attest:____________________________
Title:___________________________
[SEAL]
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EXHIBIT A
SYSTEM PEAKING UNITS
Nominal Net
Name of Facility Number of Units Summer Ratings
Intercession City 10 580
Debary 10 580
Bayboro 4 172
Suwannee 3 153
Bartow 4 176
Turner 4 148
Avon Park 2 44
Higgins 4 96
Pt. St. Joe 1 13
Rio Pinar 1 13
Seller reserves the unilateral right to add to, or delete from, the
above list of System Peaking Units or parts of System Peaking Units,
provided that the total generating capacity of the System Peaking
Units shall never be less than 1,900 MW.
EXHIBIT B
DISPATCH CHARACTERISTICS OF SYSTEM PEAKING CAPACITY
Block Loading Size: 25 MW
Time required between Block Loading: 0 minutes
Notice Required to Meet Minimum Load from Cold Start: 6 minutes
Notice Required to Meet Minimum if
Operated Previous Day: 6 minutes
Time Required to go from Minimum to Maximum Load: 7 minutes
Minimum Down Time: 0 minutes
Minimum Up Time: 0 minutes
The System Peaking Capacity does not have to come to
full output before moving to minimum
Existence of Automatic Generation Control
Ramping levels and procedures as determined by the Peaking
Capacity Operating Committee