Exhibit 10(a)49
AMENDED AND RESTATED NUCLEAR MANAGING BOARD AGREEMENT
AMONG
GEORGIA POWER COMPANY
OGLETHORPE POWER CORPORATION
MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA
AND
CITY OF DALTON, GEORGIA
DATED AS OF JULY 1, 1993
TABLE OF CONTENTS
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.0 Definitions . . . . . . . . . . . . . . . . . . . 4
1.1 "Agency Functions" . . . . . . . . . . . . . . . . 4
1.2 "Agreement" . . . . . . . . . . . . . . . . . . . 5
1.3 "Dalton" . . . . . . . . . . . . . . . . . . . . . 5
1.4 "Each Plant" . . . . . . . . . . . . . . . . . . . 5
1.5 "Fuel Budget" . . . . . . . . . . . . . . . . . . 5
1.6 "Fuel Plan" . . . . . . . . . . . . . . . . . . . 5
1.7 "Fuel Services" . . . . . . . . . . . . . . . . . 5
1.8 "Governmental Authority" . . . . . . . . . . . . . 6
1.9 "GPC" . . . . . . . . . . . . . . . . . . . . . . 6
1.10 "Joint Committee Agreement" . . . . . . . . . . . 6
1.11 "Legal Requirements" . . . . . . . . . . . . . . . 6
1.12 "Major Contract" . . . . . . . . . . . . . . . . . 7
1.13 "MEAG" . . . . . . . . . . . . . . . . . . . . . . 8
1.14 "New Investment Budget" . . . . . . . . . . . . . 8
1.15 "New Investment Services" . . . . . . . . . . . . 8
1.16 "NRC" . . . . . . . . . . . . . . . . . . . . . . 9
1.17 "Nuclear Interface Procedure" . . . . . . . . . . 9
1.18 "Nuclear Managing Board", "Managing Board" or
"Board". . . . . . . . . . . . . . . . . . . . . . 9
1.19 "Nuclear Operating Agreement" . . . . . . . . . . 9
1.20 "Nuclear Operating Services" . . . . . . . . . . . 9
1.21 "Nuclear Services Agreement" . . . . . . . . . . . 10
i
1.22 "Nuclear Services Contractor" . . . . . . . . . . 10
1.23 "Nuclear Support Services" . . . . . . . . . . . . 10
1.24 "OEMC" . . . . . . . . . . . . . . . . . . . . . . 10
1.25 "Oglethorpe" . . . . . . . . . . . . . . . . . . . 10
1.26 "Operating Agent" . . . . . . . . . . . . . . . . 11
1.27 "Operation and Maintenance Budget" . . . . . . . . 11
1.28 "Operation and Maintenance Services" . . . . . . . 11
1.29 "Participant" or "Participants" . . . . . . . . . 12
1.30 "Participants' Agent" . . . . . . . . . . . . . . 12
1.31 "Participation Agreements" . . . . . . . . . . . . 12
1.32 "Plant Hatch" . . . . . . . . . . . . . . . . . . 13
1.33 "Plant Vogtle" . . . . . . . . . . . . . . . . . . 14
1.34 "Prudent Utility Practice" . . . . . . . . . . . . 14
1.35 "Requisite Owner Action" . . . . . . . . . . . . . 14
1.36 "Services Plan" . . . . . . . . . . . . . . . . . 15
1.37 "Southern Electric System" . . . . . . . . . . . . 15
1.38 "Southern Nuclear" . . . . . . . . . . . . . . . . 15
1.39 "Southern Services" . . . . . . . . . . . . . . . 16
1.40 "Strategic Plan" . . . . . . . . . . . . . . . . . 16
1.41 "The Southern Company" . . . . . . . . . . . . . . 16
1.42 "Undivided Ownership Interest" . . . . . . . . . . 16
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.0 Nuclear Managing Board . . . . . . . . . . . . . . 16
2.1 Establishment and Members of the Nuclear Managing
Board. . . . . . . . . . . . . . . . . . . . . . . 16
ii
2.2 Authority of the Board . . . . . . . . . . . . . . 17
2.3 Functions of the Board . . . . . . . . . . . . . . 17
2.4 Actions of the Board . . . . . . . . . . . . . . . 24
2.5 Chairman of the Board . . . . . . . . . . . . . . 24
2.6 Duties of the Chairman of the Board . . . . . . . 25
2.7 Minutes of Meetings . . . . . . . . . . . . . . . 27
2.8 Expenses . . . . . . . . . . . . . . . . . . . . . 28
2.9 Procedures . . . . . . . . . . . . . . . . . . . . 28
2.10 Attendees at Meetings . . . . . . . . . . . . . . 28
2.11 Delegation of Authority . . . . . . . . . . . . . 29
2.12 Subcommittees . . . . . . . . . . . . . . . . . . 29
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.0 Responsibilities of the Participants' Agent . . . 29
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.0 Strategic Plans and Budgets . . . . . . . . . . . 31
4.1 Strategic Plans . . . . . . . . . . . . . . . . . 32
4.2 Fuel Plan . . . . . . . . . . . . . . . . . . . . 36
4.3 Operation and Maintenance Budget . . . . . . . . . 37
4.4 New Investment Budget . . . . . . . . . . . . . . 37
4.5 Fuel Budget . . . . . . . . . . . . . . . . . . . 38
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.0 Information and Access . . . . . . . . . . . . . . 39
5.1 Information to Be Provided to the Participants . . 39
iii
5.2 Access to Plant Hatch and Plant Vogtle . . . . . . 48
5.3 Management Audits . . . . . . . . . . . . . . . . 53
5.4 Cost Audits . . . . . . . . . . . . . . . . . . . 54
5.5 Civil Penalties and Meetings . . . . . . . . . . . 55
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.0 Recovery of Costs . . . . . . . . . . . . . . . . 55
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.0 Relation To Existing Agreements . . . . . . . . . 56
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . 60
8.0 Term, Termination, and Effective Date . . . . . . 60
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . 61
9.0 Miscellaneous . . . . . . . . . . . . . . . . . . 61
9.1 Required Approvals . . . . . . . . . . . . . . . . 61
9.2 Further Assurances . . . . . . . . . . . . . . . . 61
9.3 Governing Law . . . . . . . . . . . . . . . . . . 61
9.4 Notice . . . . . . . . . . . . . . . . . . . . . . 61
9.5 Section Headings Not To Affect Meaning . . . . . . 63
9.6 Time of Essence . . . . . . . . . . . . . . . . . 63
9.7 Amendments . . . . . . . . . . . . . . . . . . . . 63
9.8 Successors and Assigns . . . . . . . . . . . . . . 63
9.9 Counterparts . . . . . . . . . . . . . . . . . . . 63
iv
9.10 Computation of Percentage Undivided Ownership
Interest . . . . . . . . . . . . . . . . . . . . . 63
9.11 Several Agreements . . . . . . . . . . . . . . . . 64
9.12 Confidentiality . . . . . . . . . . . . . . . . . 64
9.13 Effect on Joint Committee Agreement . . . . . . . 65
9.14 Arbitration . . . . . . . . . . . . . . . . . . . 65
9.15 Accounting Methodology . . . . . . . . . . . . . . 71
EXECUTIONS
v
AMENDED AND RESTATED NUCLEAR MANAGING BOARD AGREEMENT
FOR
PLANT HATCH AND PLANT VOGTLE
THIS AMENDED AND RESTATED NUCLEAR MANAGING BOARD AGREEMENT
FOR PLANT HATCH AND PLANT VOGTLE is made and entered into as of
July 1, 1993 among GEORGIA POWER COMPANY, a corporation organized
and existing under the laws of the State of Georgia; OGLETHORPE
POWER CORPORATION, an electric membership corporation organized
and existing under Title 46 of the Official Code of Georgia
Annotated; the MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, a public
corporation and an instrumentality of the State of Georgia; and
the CITY OF DALTON, a municipal political subdivision of the
State of Georgia, acting by and through its Board of Water, Light
and Sinking Fund Commissioners (hereinafter collectively called
the "Participants" and individually sometimes called
"Participant").
W I T N E S S E T H:
WHEREAS, the Participants have previously entered into the
Participation Agreements identified in Section 1.31 hereof
concerning Plant Hatch and Plant Vogtle pursuant to which
Oglethorpe, MEAG and Dalton have irrevocably appointed GPC as
their agent in connection with the planning, licensing, design,
construction, acquisition, completion, management, control,
operation, maintenance, renewal, addition, replacement and
disposal for Plant Hatch and Plant Vogtle (hereinafter the
"Agency Functions"); and
WHEREAS, the Participants have also previously entered into
the Joint Committee Agreement, dated as of August 27, 1976, for
the purpose of establishing a Joint Committee to coordinate steps
taken to implement and administer the agreements identified in
Attachment A to the Joint Committee Agreement including, among
others, the Participation Agreements; and
WHEREAS, the Participants have also previously entered into
the Nuclear Managing Board Agreement, dated as of November 12,
1990, which among other things established a Nuclear Managing
Board to coordinate the implementation and administration of the
Participation Agreements in lieu of the Joint Committee; and
WHEREAS, GPC and Southern Nuclear, an affiliate of GPC, have
entered into the Nuclear Services Agreement, dated as of October
31, 1991, pursuant to which Southern Nuclear, as the Nuclear
Services Contractor, agreed to provide Nuclear Support Services
to GPC, which agreement was approved by the Nuclear Managing
Board on the conditions that (i) GPC acknowledge that its
contract with Southern Nuclear was a subcontract only and would
not relieve GPC of any of its responsibilities to the
Participants; (ii) GPC would continue to be responsible for its
Agency Functions including, without limitation, the management,
control, operation and maintenance of Plant Hatch and Plant
Vogtle pursuant to the applicable Operating Licenses and
Participation Agreements and shall be responsible for the
2
performance of the Nuclear Services Contractor; and (iii) the
Nuclear Services Contractor shall become obligated to comply with
the applicable terms and conditions of the Nuclear Managing Board
Agreement; and
WHEREAS, GPC has proposed, subject to all Legal
Requirements, to enter into the Nuclear Operating Agreement for
Plant Hatch and Plant Vogtle with Southern Nuclear, pursuant to
which Southern Nuclear will become the Operating Agent and
responsible for the operation and maintenance and the
decommissioning of Plant Hatch and Plant Vogtle as the agent of
GPC at such time as the NRC has authorized Southern Nuclear to
operate and maintain Each Plant. Such proposal of GPC (a)
contemplates that at the time that Southern Nuclear becomes the
Operating Agent, the Nuclear Services Agreement will be
terminated and (b) is made on the conditions that (i) GPC
acknowledges that the Nuclear Operating Agreement is a
subcontract only and does not relieve GPC of any of its
responsibilities to the Participants; (ii) GPC shall continue to
be responsible to the Participants for its Agency Functions,
including, without limitation, the operation and maintenance and
the decommissioning of Plant Hatch and Plant Vogtle pursuant to
the Participation Agreements and shall be responsible for the
performance of the Operating Agent; and (iii) the Operating Agent
shall be obligated to comply with the applicable terms of this
Amended and Restated Nuclear Managing Board Agreement; and
3
WHEREAS, the other Participants are willing to accept the
foregoing proposal made by GPC upon the stated conditions
thereof; and
WHEREAS, the Participants now desire to enter into the
Amended and Restated Nuclear Managing Board Agreement in order to
implement the foregoing proposal of GPC upon the stated
conditions thereof and to provide that the Board shall have the
authority to administer the Nuclear Operating Agreement in the
manner hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the
mutual undertakings stated herein, the parties hereto intending
to be legally bound do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.0 Definitions. As used herein, the following terms and
phrases shall have, respectively, the following meanings:
1.1 "Agency Functions" means the functions of the
Participants' Agent described in the first recital of this
Agreement.
4
1.2 "Agreement" shall mean the Amended and Restated
Nuclear Managing Board Agreement unless the text clearly
indicates otherwise.
1.3 "Dalton" shall mean the City of Dalton, Georgia,
acting by and through its Board of Water, Light and Sinking Fund
Commissioners, and their respective successors and assignees.
1.4 "Each Plant" shall mean and refer to, respectively,
Plant Hatch and Plant Vogtle individually; provided, that should
activities concerning Plant Hatch or Plant Vogtle be undertaken
with respect to one unit of such plant individually, the phrase
Each Plant means and refers to that unit and related common
facilities.
1.5 "Fuel Budget" shall mean the budget described in
Section 4.5 hereof.
1.6 "Fuel Plan" shall mean the plan described in Section
4.2 hereof.
1.7 "Fuel Services" shall mean work related to supplying
and managing the nuclear fuel for Each Plant including, without
limitation, planning, procurement, contract administration, fuel
cycle design, fuel core and assembly design, fuel quality
assurance, nuclear materials management and all activities
5
relating to procurement, conversion, enrichment, fabrication,
transportation, installation, monitoring, repairing, storage,
reprocessing and disposal of uranium, nuclear fuel, related
materials and waste products.
1.8 "Governmental Authority" shall mean any local, state,
regional or federal legislative, regulatory, administrative,
legal, judicial, or executive agency, commission, department or
other entity, and any person acting on behalf of any such entity.
1.9 "GPC" shall mean Georgia Power Company, a corporation
organized and existing under the laws of the State of Georgia,
and its successors and assigns.
1.10 "Joint Committee Agreement" shall mean the Joint
Committee Agreement among GPC, OEMC, MEAG and Dalton, dated as of
August 27, 1976, as amended.
1.11 "Legal Requirements" shall mean all laws, codes,
ordinances, orders, judgments, decrees, injunctions, licenses,
rules, permits, approvals, written agreements, regulations and
requirements of or issued by every Governmental Authority having
jurisdiction over the matter in question, whether federal,
regional, state or local, which may be applicable to the
Operating Agent or any of the Participants, or to Plant Hatch or
to Plant Vogtle or any of the real or personal property
6
comprising Plant Hatch or Plant Vogtle, or to Nuclear Operating
Services, or to Nuclear Support Services, or the use, occupancy,
possession, operation, maintenance, construction,
decommissioning, acquisition, installation, alteration,
replacement, reconstruction or disposal of Each Plant or any part
thereof.
1.12 "Major Contract" shall mean (i) any contract for the
procurement of a firm supply (excluding any options) of natural
or enriched uranium (U3O8 or UF6) from foreign or domestic sources
over a term of greater than five years and in an aggregate amount
of greater than $50 million, (ii) any contract for the
procurement from domestic or foreign sources of uranium
enrichment services or fuel fabrication services (which may or
may not include fuel core design services) over a term of greater
than five years and in an aggregate amount of greater than $50
million, (iii) any contract for the procurement of major items of
equipment (e.g., steam generators or reactor coolant pumps) in an
amount of greater than $30 million for any single item of
equipment, (iv) any contract for the procurement of outage
services over a term of greater than five years and in an
aggregate amount of greater than $50 million, or (v) any contract
which will require the expenditure by Southern Nuclear (including
any charges associated with a termination of such contract by
Southern Nuclear without cause) in an amount of $50 million in
any one year or an aggregate amount of $100 million; provided,
7
however, that if any contract permits the Operating Agent to
cancel such contract on less than one year's advance notice, and
the Operating Agent is not obligated to pay a fee or charge for
the exercise of such cancellation alone, then the term of such
contract for purposes of determining whether such contract is a
Major Contract shall be the minimum term which could result if
the Operating Agent were to exercise such cancellation right.
1.13 "MEAG" shall mean the Municipal Electric Authority of
Georgia, a public corporation and an instrumentality of the State
of Georgia, and its successors and assigns.
1.14 "New Investment Budget" shall mean the budget
described in Section 4.4 hereof.
1.15 "New Investment Services" shall mean work undertaken
with respect to Each Plant that relates to the planning, design,
licensing, acquisition, construction, completion, renewal,
improvement, addition, replacement, repair, retirement,
enlargement or modification of any Unit of Property as described
in the Retirement Unit Manual of the Southern Electric System,
including any amendments thereof as may from time to time be
appropriate or necessary to comply with Legal Requirements, under
circumstances where expenditures for such work are to be
capitalized in accordance with the Electric Plant Instructions of
the Uniform System of Accounts prescribed for Class A and B
8
Public Utilities and Licensees by the Federal Energy Regulatory
Commission.
1.16 "NRC" shall mean the United States Nuclear Regulatory
Commission or any successor agency authorized to regulate and
license utilization facilities pursuant to the Atomic Energy Act
of 1954 as amended.
1.17 "Nuclear Interface Procedure" shall have the meaning
assigned in Section 2.6 of the Nuclear Operating Agreement.
1.18 "Nuclear Managing Board", "Managing Board" or "Board"
shall mean the board established pursuant to Section 2.1 of this
Agreement.
1.19 "Nuclear Operating Agreement" shall mean that certain
Nuclear Operating Agreement Between Georgia Power Company and
Southern Nuclear Operating Company, Inc., dated as of the date
hereof, for the procurement of Nuclear Operating Services for the
operation and maintenance of Plant Hatch and Plant Vogtle as it
may be amended from time to time.
1.20 "Nuclear Operating Services" shall mean New Investment
Services, Fuel Services, and Operation and Maintenance Services
with respect to Each Plant.
9
1.21 "Nuclear Services Agreement" shall mean that certain
Nuclear Services Agreement Between Southern Nuclear Operating
Company, Inc. and Georgia Power Company, dated as of October 31,
1991, for the procurement of Nuclear Support Services in support
of the operation and maintenance of Plant Hatch and Plant Vogtle
which agreement shall be terminated on the effective date of the
Nuclear Operating Agreement in accordance with Section 9.2 of the
Nuclear Operating Agreement.
1.22 "Nuclear Services Contractor" shall mean the entity
who shall provide Nuclear Support Services pursuant to the
Nuclear Services Agreement.
1.23 "Nuclear Support Services" shall mean those services
to be performed by the Nuclear Services Contractor for the
Operating Agent in accordance with the Nuclear Services
Agreement. Nuclear Support Services shall not include any
activity which is required by the NRC operating licenses to be
performed directly by the licensee.
1.24 "OEMC" shall mean the Oglethorpe Electric Membership
Corporation, now known as Oglethorpe Power Corporation.
1.25 "Oglethorpe" shall mean Oglethorpe Power Corporation
(An Electric Membership Generation & Transmission Corporation),
an electric membership corporation organized and existing under
10
Title 46 of the Official Code of Georgia Annotated, and its
successors or assigns.
1.26 "Operating Agent" shall mean the entity licensed by
the NRC to operate and maintain Plant Hatch and Plant Vogtle.
1.27 "Operation and Maintenance Budget" shall mean the
budget described in Section 4.3 hereof.
1.28 "Operation and Maintenance Services" shall mean work
for the Participants relating to the possession, management,
control, start up, operation, availability, production of energy,
maintenance, modification, shutdown, retirements, and
decommissioning, including, but not limited to, any planning,
design, engineering, labor, procurement of materials and
supplies, materials management, quality assurance, training,
security, environmental protection, and handling of any source
material, special nuclear material or by-product material
together with maintaining or obtaining licenses and regulatory
approvals related thereto, governmental affairs or regulatory
relationships, and all other activity that is not included in or
performed as New Investment Services or Fuel Services, but which
is required for the operation and maintenance of Each Plant or
that may be required to comply with Legal Requirements.
11
1.29 "Participant" or "Participants" shall mean any, some
or all of the owners, each of which, as of the effective date of
this Agreement, owns an Undivided Ownership Interest in Plant
Hatch and Plant Vogtle in the following proportions:
Participant Plant Hatch Plant Vogtle
GPC 50.1% 45.7%
Oglethorpe 30.0% 30.0%
MEAG 17.7% 22.7%
Dalton 2.2% 1.6%
1.30 "Participants' Agent" shall mean GPC acting on its own
behalf and as agent for the other Participants in accordance with
the Participation Agreements or any successor to that role
appointed pursuant to the applicable Participation Agreements.
1.31 "Participation Agreements" shall mean the following
construction, purchase and ownership, and operating contracts
concerning Plant Hatch and Plant Vogtle:
The Edwin I. Hatch Nuclear Plant Purchase and
Ownership Participation Agreement between GPC and OEMC,
dated as of January 6, 1975, as heretofore or hereafter
amended;
The Edwin I. Hatch Nuclear Plant Agreement of
Construction between GPC and MEAG, dated as of August 27,
1976, as heretofore or hereafter amended;
12
The Edwin I. Hatch Nuclear Plant Purchase and
Ownership Participation Agreement between GPC and MEAG,
dated August 27, 1976;
The Edwin I. Hatch Nuclear Plant Purchase and
Ownership Participation Agreement, dated as of August 27,
1976, between GPC and Dalton, as heretofore or hereafter
amended;
The Edwin I. Hatch Nuclear Plant Agreement of
Construction, dated as of August 27, 1976, between GPC and
Dalton, as heretofore or hereafter amended;
The Alvin W. Vogtle Nuclear Units Numbers One and Two
Purchase and Ownership Participation Agreement among GPC,
OEMC, MEAG and Dalton, dated as of August 27, 1976, as
heretofore or hereafter amended;
The Alvin W. Vogtle Nuclear Units Numbers One and
Two Purchase, Amendment, Assignment and Assumption
Agreement between GPC and MEAG, dated as of
November 16, 1983, as amended by Amendment Number One
thereto dated as of April 9, 1985 as heretofore or
hereafter amended;
The Edwin I. Hatch Nuclear Plant Operating Agreement
between GPC and OEMC, dated as of January 6, 1975, as
heretofore or hereafter amended;
The Edwin I. Hatch Nuclear Plant Operating Agreement
between GPC and Dalton, dated as of August 27, 1976, as
heretofore or hereafter amended;
The Edwin I. Hatch Nuclear Plant Operating Agreement
between GPC and MEAG, dated as of August 27, 1976, as
heretofore or hereafter amended; and
The Alvin W. Vogtle Nuclear Units Numbers One and Two
Operating Agreement, dated as of August 27, 1976, among GPC,
OEMC, MEAG and Dalton as heretofore or hereafter amended.
1.32 "Plant Hatch" shall mean the Edwin I. Hatch Nuclear
Plant, Units 1 and 2, as described more fully in paragraph one
and Exhibits B1 and B2 of that certain Edwin I. Hatch Nuclear
Plant Purchase and Ownership Participation Agreement between
Oglethorpe and GPC dated as of January 6, 1975.
13
1.33 "Plant Vogtle" shall mean the Alvin W. Vogtle Nuclear
Plant, Units 1 and 2, as described more fully in paragraph one
and Exhibits A1 and A2 of that certain Alvin W. Vogtle Nuclear
Units One and Two Purchase and Ownership Agreement, dated as of
August 27, 1976, as amended, including any descriptions forwarded
to the Participants pursuant to Section 4(g) of that agreement.
1.34 "Prudent Utility Practice" shall mean 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 result at the lowest
reasonable cost consistent with good business practices,
reliability, safety and expedition. "Prudent Utility Practice"
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 having due regard for,
among other things, manufacturers' warranties and the
requirements of governmental agencies of competent jurisdiction.
1.35 "Requisite Owner Action" shall mean the written
approval or disapproval, as the case may be, by those
Participants which collectively own Undivided Ownership Interests
in the aggregate proportion of not less than eighty-five percent
14
(except as otherwise provided in Section 9.10 hereof), which
written approval or disapproval may be signified by the
signatures of the members of the Nuclear Managing Board who
represent such Participants and are not precluded in
participating or taking action pursuant to Section 9.10 hereof to
any resolution or motion acted upon by the Board pursuant to
Section 2, or by approval of the minutes of any Board meeting.
The failure to obtain any approval by Requisite Owner Action in
any instance where such approval is required by the terms of this
Agreement shall constitute disapproval.
1.36 "Services Plan" shall have the meaning assigned in
Section 2.6 of the Nuclear Operating Agreement.
1.37 "Southern Electric System" shall mean the electric
utility operating company subsidiaries of The Southern Company
and Southern Services, collectively.
1.38 "Southern Nuclear" shall mean Southern Nuclear
Operating Company, Inc., a corporation, organized and existing
under the laws of the State of Delaware, and its successors and
assigns.
15
1.39 "Southern Services" shall mean Southern Company
Services, Inc., a corporation organized and existing under the
laws of the State of Alabama, and its successors and assigns.
1.40 "Strategic Plan" shall mean the plan containing the
information described in Section 4.1 hereof.
1.41 "The Southern Company" shall mean The Southern
Company, a corporation organized and existing under the laws of
the State of Delaware, the subsidiaries of which include, but are
not limited to, GPC, Southern Nuclear and Southern Services.
1.42 "Undivided Ownership Interest" shall mean the interest
each Participant owns as a tenant in common with the other
Participants in Each Plant.
ARTICLE II
2.0 Nuclear Managing Board.
2.1 Establishment and Members of the Nuclear Managing
Board. There has been established a Nuclear Managing Board,
which consists of a member and an alternate designated by each
Participant. As of the effective date of this Agreement, the
Board shall have the authorities, powers, and functions
hereinafter provided. Each Participant having given written
16
notice of its designated member and alternate to all other
Participants, each Participant may change its designated member
or alternate effective upon delivery of written notice of such
change to the other Participants.
Each member of the Board shall be authorized to represent
the Participant which appointed him or her and shall have the
authority to obligate such Participant as hereinafter provided or
as may otherwise be granted by such Participant in writing, a
copy of which writing shall be furnished to all other members of
the Board. In the event any member of the Board is unable to
attend any meeting of the Board, the designated alternate for
such member shall have the full power and authority of such
member to act for and obligate the Participant which such member
represents.
2.2 Authority of the Board. The Nuclear Managing Board
shall have all authority and power necessary to perform the
functions delegated to it by Section 2.3 hereof and any other
authority explicitly delegated to it by this Agreement. Such
authority shall be exercised by the Board in the manner as
hereinafter provided in this Agreement.
2.3 Functions of the Board. The Nuclear Managing Board
shall perform the following functions:
17
2.3.1 Implement and administer the Participation
Agreements in accordance with the terms of
such agreements, respectively.
2.3.2 Administer the previously approved Nuclear
Services Agreement and administer the Nuclear
Operating Agreement, which the Managing Board
has approved. Approve by Requisite Owner
Action i) any amendment of either of such
agreements and any other contract between the
Participants' Agent and Southern Nuclear
whereby Southern Nuclear performs Nuclear
Operating Services for and on behalf of the
Participants' Agent and all changes to any
such contract, and ii) a consent by the
Participants' Agent to any assignment made
pursuant to Section 11.3 of the Nuclear
Operating Agreement; provided that approval
of any of the foregoing which is necessary to
comply with Legal Requirements shall not be
unreasonably withheld.
2.3.3 Review and provide input to the Operating
Agent prior to execution of (and the
Participants may audit from time to time
pursuant to Section 5.4 hereof) any of the
18
following agreements and any amendments
thereof, provided that the Operating Agent
shall have full authority to execute such
agreements or amendments in its sole
discretion after giving consideration to any
comments of the Managing Board or any member
thereof:
1) All Services Plans between Southern
Nuclear and the Participants' Agent;
2) Except as to any agreement for which
Managing Board approval is required
hereunder, any agreement between
Southern Nuclear and any entity with
which it is affiliated (as defined by
the Public Utility Holding Company Act
of 1935, as amended, or regulations
promulgated thereunder) entered into
after the effective date of the Nuclear
Operating Agreement. Southern Nuclear
shall give timely notice to each
Participant of the initiation of any
proceeding before the U. S. Securities
and Exchange Commission for the purpose
of reviewing amendments to existing
19
contracts or any new contract between
Southern Nuclear and any of its
affiliates and shall not contest the
standing of any Participant to intervene
in any such proceeding.
2.3.4 Approve by Requisite Owner Action the
following actions or functions of the
Operating Agent.
1) The execution after the effective date
of the Nuclear Operating Agreement of
any Major Contract; provided, however,
that if approval by Requisite Owner
Action is not obtained after any such
Major Contract has been submitted to the
Nuclear Managing Board, then any
Participant may request that such Major
Contract be submitted to the chief
executive officers (CEOs) of the
Participants for resolution by Requisite
Owner Action.
2) The taking of any action by the
Operating Agent with respect to the
sale, lease or disposal of any real or
20
personal property owned individually or
jointly by any or all of the
Participants; provided, however, that
Board approval shall not be required
before the Operating Agent takes any
action to replace any facilities,
equipment or materials with facilities,
equipment or materials, as the case may
be, of like kind and of value at least
equal to that of the replaced
facilities, equipment or materials; and
provided further that this Section
2.3.4(2) shall not apply to actions
taken pursuant to (a) NRC regulations
respecting decommissioning (i.e., 10
C.F.R. Sections 50.75 or 50.82, or any
successor regulations thereto), or (b) a
decision to retire either or both units
of Each Plant made in accordance with
the Participation Agreements. Nothing
in this Section 2.3.4(2) shall be
construed as an authorization by the
Managing Board for the Operating Agent
to take any action inconsistent with
plans and budgets adopted in accordance
with Article IV hereof.
21
2.3.5 Conduct or undertake such studies,
investigations or audits which the Board
determines are appropriate or useful in
carrying out its responsibilities or
functions. The Board may employ independent
consultants or utilize the personnel or other
resources of any Participant for such
studies, investigations or audits. The costs
of such studies, investigations or audits
allocable to Each Plant shall be borne by the
Participants in the proportion of their
respective ownership shares of such plant.
2.3.6 Review and approve, disapprove or revise and
approve the Strategic Plan, the Fuel Plan,
the Operation and Maintenance Budget, the New
Investment Budget and the Fuel Budget to be
submitted annually by the Operating Agent,
all pursuant to Sections 4.0 through 4.5
hereof.
2.3.7 Perform those functions described in Sections
4.0, 4.1, 4.3, 4.4, 4.5, 5.1, 5.2, 9.14, and
9.15 hereof.
22
2.3.8 Approve any change from the existing plant
basis of allocation of costs in the Southern
Nuclear Cost Allocation Manual by Requisite
Owner Action; provided, however, that
approval of changes caused by Legal
Requirements shall not be unreasonably
withheld.
2.3.9 Approve the decommissioning plan for Each
Plant, filed by the Operating Agent with the
NRC, pursuant to 10 C.F.R. Section 50.75(f) or 10
C.F.R. Section 50.82, or any successor NRC
regulation or pursuant to any other Legal
Requirements, by Requisite Owner Action;
provided, however, that approval of a
decommissioning plan that meets Legal
Requirements shall not be unreasonably
withheld.
2.3.10 Approve by Requisite Owner Action the Nuclear
Interface Procedure whereby GPC or any other
affiliate of Southern Nuclear will provide
support services as shall be described in
written Services Plans, which shall be
subject to Board review and input pursuant to
Section 2.3.3 hereof.
23
2.3.11 Perform such other functions as the
Participants may in writing delegate to the
Board.
2.4 Actions of the Board. In performing the functions
described in Section 2.3 hereof, the Nuclear Managing Board shall
act by unanimous vote of all members not ineligible to
participate in any action pursuant to Section 9.10 hereof except
as otherwise provided (i) in Sections 2.3.2, 2.3.3, 2.3.4, 2.3.8,
2.3.9, 2.3.10, 4.0, 4.1, 4.3, 4.4 and 4.5 hereof or (ii) by any
of the Participation Agreements, or (iii) any other written
agreements as may hereinafter be entered into by all of the
Participants.
2.5 Chairman of the Board. So long as GPC is the
Operating Agent, the member of the Nuclear Managing Board
representing GPC shall be the Chairman of the Board. In the
event GPC is not the Operating Agent, then the Chairman of the
Board shall be a member of the Board elected by a majority of the
members of the Board for a term of twelve consecutive months. On
the expiration of such term, the succeeding Chairman of the Board
shall be a member of the Board elected by a majority vote of the
members of the Board. There shall be no restriction upon the
number of terms to which any member of the Board may be elected
to serve as Chairman; provided that no member or no member and
his or her predecessor representing a single Participant shall be
24
eligible for election as Chairman for more than two successive
terms without the consent of all members of the Board.
2.6 Duties of the Chairman of the Board. The Chairman of
the Nuclear Managing Board shall have the following duties:
2.6.1 Schedule meetings of the Board at such time
and place as the Chairman may determine but
not less frequently than once every two
months unless all members of the Board shall
otherwise agree. With the consent of all
members, any meeting of the Board may be
conducted by telephone conference and any
members of the Board may participate in any
meeting by telephone.
2.6.2 Provide notice to all other members of the
Board of each scheduled Board meeting thirty
days in advance of such meeting except in
emergencies or unless all members consent to
any shorter notice.
2.6.3 Provide all other members of the Board with a
copy of each resolution or motion which the
Chairman or any other member proposes to
25
submit to the Board for action at any meeting
of the Board at least five business days
prior to such meeting, provided such time
requirement may be waived by the unanimous
vote of all Board members at such meeting.
2.6.4 Preside at each Board meeting and conduct all
Board meetings in accordance with the
procedures and rules established in
accordance with Section 2.9 hereof.
2.6.5 Establish the agenda for each Board meeting,
including such items or matters as the
Chairman shall deem appropriate or as may be
requested by any other member of the Board.
2.6.6 Notify all members of the Board of the agenda
for each meeting as much in advance of such
meeting as may be possible, but in any event
not less than five business days before such
meeting.
2.6.7 Appoint a secretary for the Board who shall
(i) prepare a draft of the minutes of each
Board meeting and deliver or mail a copy of
such draft minutes to each member of the
26
Board within five business days after the
close of each meeting of Board and (ii) take
custody of and maintain the records of all
Board meetings.
2.7 Minutes of Meetings. The minutes of each Board
meeting shall record the following:
2.7.1 The date, time and place of the meeting;
2.7.2 The agenda of the meeting and the items or
matters discussed;
2.7.3 The resolutions and motions approved, actions
approved, agreements reached and decisions
made by the Board, including the votes of the
members of the Board on each of such
resolutions, motions, actions, agreements and
decisions;
2.7.4 The date, time and place of the next meeting
of the Board to be scheduled.
Provided, (1) the minutes of any meeting of the Board shall not
include any position advanced by any member on any matter which
was not adopted by the Board at such meeting for any reason, and
27
(2) any written resolution or motion respecting a budget or
Strategic Plan submitted to and approved by the Board shall be
immediately effective and binding upon the Participants when the
requisite number of members have affixed their signatures to such
resolution or motion. At the next succeeding regular meeting at
which each Participant is represented, the members of the Board
in attendance shall consider the minutes of the preceding regular
or called meeting and if they are found in order, shall signify
approval of the minutes by affixing their signatures to same.
2.8 Expenses. Each Participant shall be responsible for
the personal expenses of its member and alternate of the Nuclear
Managing Board at any Board meeting. General meeting expenses
shall be the responsibility of the Participant whose member is
serving as Chairman at the time the meeting is held. All other
expenses necessary in the performance of the Board functions
shall be allocated and paid as determined by the Board.
2.9 Procedures. The Nuclear Managing Board shall develop
and adopt and from time to time modify manuals or procedures as
may be appropriate for the conduct of its meetings and the
performance of its functions.
2.10 Attendees at Meetings. Attendance at meetings of the
Nuclear Managing Board shall not be limited to members of the
Board, but the Participants recognize the practical necessity of
28
limiting the participation of attendees at any Board meeting who
are not members to those who are expected to take an active part
on the agenda for such meeting. Subject to Legal Requirements,
the Chairman, on his own motion or at the request of any member
may conduct any portion of any meeting in executive session at
which attendance may be restricted to members or their respective
alternates and persons invited by the Chairman.
2.11 Delegation of Authority. The Nuclear Managing Board
shall not delegate its authority to others.
2.12 Subcommittees. The Nuclear Managing Board shall have
the authority to appoint and charge subcommittees to study and
make recommendations on any subject. The purpose, charge and
duty of each subcommittee so appointed shall not exist for more
than one year unless reappointed by the Board.
ARTICLE III
3.0 Responsibilities of the Participants' Agent. GPC
shall continue to be the Participants' Agent and responsible for
its Agency Functions under the Participation Agreements for so
long as they shall remain in effect or until GPC has been removed
as the Participants' Agent pursuant to the terms of such
agreements.
29
Additionally, until the Nuclear Operating Agreement shall
become effective, GPC shall continue to be the Operating Agent of
Each Plant and in that capacity shall be obligated to operate and
maintain Each Plant in accordance with the Participation
Agreements and all Legal Requirements and shall comply with the
terms hereof, and shall be responsible for the performance of the
Nuclear Services Contractor.
At such time as the Nuclear Operating Agreement shall become
effective, GPC (i) shall cease to be and Southern Nuclear shall
become the Operating Agent of Each Plant, but GPC shall continue
to be the Participants' Agent, and (ii) shall become responsible
for the performance of Southern Nuclear as the Operating Agent of
Each Plant in accordance with this Agreement and the
Participation Agreements and all Legal Requirements.
Upon request from any member of the Board, the Participants'
Agent shall advise the Board if additional amounts or scope of
coverage of nuclear decontamination and property damage insurance
are available to an individual Participant beyond that obtained
by the Participants' Agent for Each Plant pursuant to the
Participation Agreements; and, at the request of any
Participant's member of the Board, the Participants' Agent shall
obtain such additional amount or greater scope of coverage for
such Participant as may be requested and available; provided that
any increase in cost, including without limitation premiums or
30
retrospective premium calls, arising from such additional amount
or greater scope of coverage shall be for the account of such
Participant.
ARTICLE IV
PLANS AND BUDGETS
4.0 Strategic Plans and Budgets. By February 1 of each
year, each Participant may provide to the Operating Agent input
to be used in the formulation of the subsequent year's Strategic
Plan and budgets. Strategic Plans, Fuel Plans and budgets shall
be prepared and shall be submitted by the Operating Agent to the
Nuclear Managing Board as provided in Sections 4.1 through 4.5
below. Plans and budgets shall conform to the requirements and
guidelines stated in Appendix "A" attached hereto and made a part
hereof and any revisions of such appendix as may be approved by
the Board. Within 30 days after submittal, each Strategic Plan,
Fuel Plan, Operation and Maintenance Budget, New Investment
Budget, and Fuel Budget shall be approved, or revised and
approved, by Requisite Owner Action or disapproved by the Board.
In the event that the Board disapproves any plan or budget
(except when such disapproval is by Requisite Owner Action)
within thirty days after submittal, then the item(s) in dispute
respecting any plan or budget shall be submitted to the chief
executive officers (CEOs) of the Participants for resolution. A
Review Group may be appointed by the Board to review all sides of
31
the items in dispute and make a presentation to the CEOs
concerning various viewpoints and aspects of such items in
dispute. If the CEOs are unable to resolve any item in dispute
by Requisite Owner Action within thirty days after submittal to
the CEOs, then such unresolved item in dispute shall be resolved
by the Participants' Agent in a manner consistent with Prudent
Utility Practice and all other elements of such plan or budget
shall be deemed approved by the Board and binding on the
Participants.
4.1 Strategic Plans. A Strategic Plan for Each Plant
consisting of six elements described in Sections 4.1.1 through
4.1.6 shall be submitted by the Operating Agent to the Nuclear
Managing Board by May 15 of each year. The Board may, by
Requisite Owner Action, separately approve or disapprove
individual projects which are classified as planned improvement
projects pursuant to Section 4.1.4 below, but shall otherwise
approve or disapprove each Strategic Plan in its entirety. In
the event the Board shall by Requisite Owner Action disapprove
any Strategic Plan in its entirety, the Operating Agent shall as
promptly as possible, submit a revised Strategic Plan to the
Board for approval or disapproval. In the event the Board shall
by Requisite Owner Action disapprove separately one or more
planned improvement projects of any Strategic Plan, the Operating
Agent may submit to the Board for approval or disapproval a
revision of such Strategic Plan with adjustments in any other
32
element that may be affected by the deletion of such disapproved
planned improvement projects. The six elements of each Strategic
Plan are described in the following Sections 4.1.1 through 4.1.6.
4.1.1 Five-year Operating and Planned Outage
Schedule. This schedule shall identify
the scheduled operating cycles and
planned outages for refueling,
maintenance and other work during the
succeeding five years. The schedule
shall describe in reasonable detail the
time and duration of each planned outage
and the maintenance and other work
planned to be performed during such
outage.
4.1.2 Availability and Performance Goals.
This section shall contain overall
performance goals which have been
established for Each Plant, including,
without limitation, goals relating to
unit availability.
4.1.3 Planned Mandatory Projects. A mandatory
project is any project with a total
33
estimated cost in excess of one million
dollars or such greater amount as the
Board may establish, including any
modification, addition or program, which
is needed in order to support normal
operations (including, without
limitation, facilities for spent fuel
storage) in accordance with Prudent
Utility Practice or in order to comply
with regulatory or safety requirements.
The associated schedule and estimated
annual funding requirements shall be
included.
4.1.4 Planned Improvement Projects. An
improvement project is any project with
a total estimated cost in excess of one
million dollars or such greater amount
as the Board may establish, including
any modification, addition, or program,
which is not mandatory as defined in
Section 4.1.3 hereof. Examples of such
projects include efforts to improve
plant performance or conditions such as
improved plant capacity or efficiency,
enhanced working conditions, and
34
appearance. The associated schedule and
estimated annual funding requirements
shall be included.
4.1.5 Authorized Level of Staffing. This
section shall provide the current
authorized number of permanent staff
positions in the organizations of the
Operating Agent and of the Nuclear
Services Contractor which are assigned
to Each Plant. Such number of positions
shall be broken down by functional areas
(e.g., operations, maintenance,
administrative, technical, corporate
support), shall include positions which
are located either on-site or off-site,
and shall include all positions
regardless of the actual employer. This
section shall also show any planned
changes in such authorized number of
positions over the succeeding five
years.
4.1.6 Low Level Radioactive Waste Disposal.
This section shall provide information
respecting plans for disposal or
35
reduction, or both, of low level
radioactive wastes generated at Each
Plant, including any plans for onsite
disposal.
4.2 Fuel Plan. A ten year Fuel Plan for Plant Hatch and
Plant Vogtle shall be submitted to the Nuclear Managing Board by
September 15 of each year. Each Fuel Plan shall describe in
reasonable detail each action or contemplated action and payment
and the dates thereof, core usage and design burn up, estimated
fueling dates and the energy expected to be generated by each
unit for each fuel period of the Fuel Plan, a cash flow analysis
of forecasted expenditures and credits for each Participant for
each major component of the fuel cycle by years, and cash flow by
months for the first five years. Each Fuel Plan will also
provide the following information with respect to the spent fuel
at Each Plant: the existing spent fuel storage capacity; the
current spent fuel inventory; the projected date when the spent
fuel storage capacity will be fully utilized; the projected dates
when shipments of spent fuel for disposal will commence; and the
projected date when additional spent fuel storage capacity may
have to be provided.
4.3 Operation and Maintenance Budget. By August 15 of
each year, the Operating Agent shall submit to the Nuclear
Managing Board a written Operation and Maintenance Budget
36
estimate of the costs of Operation and Maintenance Services for
Each Plant for the next calendar year, with a forecast of budget
requirements for the succeeding four calendar years. Such budget
estimate and forecast shall be based on the Strategic Plan unless
the Operating Agent determines that deviations from the Strategic
Plan are appropriate, in which case, the Operating Agent shall
identify such deviations to the Managing Board. The Board may,
by Requisite Owner Action, approve or disapprove each budget in
its entirety. In the event the Board shall by Requisite Owner
Action disapprove an entire budget, the Operating Agent shall as
promptly as possible, submit a revised budget to the Board for
approval or disapproval. Each budget shall be supported by
detail reasonably adequate for the purpose of review by the
Board.
4.4 New Investment Budget. By August 15 of each year, the
Operating Agent shall submit to the Nuclear Managing Board a
written New Investment Budget estimate of the cost of New
Investment Services for Each Plant for the next calendar year,
with a forecast of budget requirements for the succeeding four
calendar years. Such budget estimate and forecast shall be based
on the Strategic Plan unless the Operating Agent determines that
deviations from the Strategic Plan are appropriate, in which
case, the Operating Agent shall identify such deviations to the
Managing Board. The Board may, by Requisite Owner Action,
approve or disapprove each budget in its entirety. In the event
37
the Board shall by Requisite Owner Action disapprove an entire
budget, the Operating Agent shall as promptly as possible, submit
a revised budget to the Board for approval or disapproval. Each
budget shall be supported by detail reasonably adequate for the
purpose of review by the Board.
4.5 Fuel Budget. By August 15 of each year, the Operating
Agent shall submit to the Nuclear Managing Board a written Fuel
Budget estimate of the costs of Fuel Services for Each Plant for
the next calendar year, with a forecast of budget requirements
for the succeeding four calendar years. The Board may, by
Requisite Owner Action, approve or disapprove each budget in its
entirety. In the event the Board shall by Requisite Owner Action
disapprove an entire budget, the Operating Agent shall as
promptly as possible, submit a revised budget to the Board for
approval or disapproval. Each budget shall be supported by
detail reasonably adequate for the purpose of review by the
Board.
38
ARTICLE V
INFORMATION
5.0 Information and Access. The Participants' Agent shall
furnish or cause to be furnished information, access to
information and access to Plant Hatch and Plant Vogtle and the
offices of the Operating Agent and the Nuclear Services
Contractor as follows:
5.1 Information to Be Provided to the Participants. Three
categories of information, i.e., Formal Routine, Formal
Non-routine, and Informal, shall be provided to each member of
the Nuclear Managing Board or to the Participants in the manner
indicated below:
5.1.1 Formal Routine Information. In addition to
the Strategic Plan and budget information
provided routinely pursuant to Article IV,
information in this category includes:
1) Energy Estimate - By August 15 of each
year, the Participants' Agent will
furnish a written energy estimate for
Each Plant projecting the estimated
generation for each unit during the
39
succeeding five calendar years, using
the best available data at the time.
2) Plant Performance Data - At the time of
submittal of each Strategic Plan, the
Operating Agent will also furnish a
comparison of the performance of Each
Plant relative to other plants using
performance indicators, including,
without limitation, the unit cost of
generation, in common use in the nuclear
industry or as may be specified by the
Nuclear Managing Board.
3) Plant Budget Reports - The Operating
Agent will furnish monthly data showing
actual costs for Operation and
Maintenance Services, New Investment
Services, and Fuel Services with
comparisons to the respective budgets
for such services. This report will
normally be provided by the end of the
succeeding month.
4) Plant Specific Strategic Plan Reports
At least bimonthly, the Operating Agent
40
will furnish data showing actual
performance for each unit at Each Plant
compared to goals contained in the
Strategic Plan for Each Plant.
5) INPO Evaluations and Assessments - The
Operating Agent will make available for
review by the representatives of each
Participant copies of evaluations and
assessments of Each Plant by the
Institute of Nuclear Power Operations
("INPO").
6) NRC and INPO Meetings - Each member of
the Board will be notified by the
Operating Agent and appropriate
representatives of each Participant may
attend executive exit meetings of INPO
and the NRC as observers. Attendance by
Participant representatives as observers
at other NRC & INPO meetings with the
Operating Agent will be permitted unless
(i) such attendance is contrary to the
policies of NRC or INPO, or (ii) the
management of the Operating Agent
requests that Participant
41
representatives not attend in which
event any Participant may invoke the
procedures specified in Section 5.2.3
hereof.
7) Audit Reports - The Operating Agent will
make available for review by the
Participants copies of financial or
accounting reports concerning Each Plant
containing the results of audits by or
for GPC, Southern Nuclear, Southern
Services or any affiliate of The
Southern Company, for any Participant or
its affiliates, or by any regulatory
agency.
8) Correspondence to and from NRC - The
Operating Agent shall furnish to any
member of the Board at his or her
request copies of all correspondence to
and from the NRC concerning Plant Hatch
or Plant Vogtle.
9) Meetings with the Board - In order to
assure that the members of the Board are
informed as to the status of operations
42
at Each Plant, an officer of the
Operating Agent, together with any
employees or consultants of the
Operating Agent as such officer may
designate, shall attend each meeting of
the Board. At such meetings the
Operating Agent shall present
information concerning plant
performance, the status and condition of
Each Plant, including review of the
problem status reports, and new capital
projects, to convey an overview of Each
Plant and its operations and to address
items on the agenda for the meeting of
the Board. The Operating Agent will
inform the Board of events which are
affecting or may affect the availability
of any unit at Each Plant.
10) Responses to Participant Inquiries - In
addition to the obligations of the
Operating Agent to provide the
information and access as explicitly
required herein, the Operating Agent
will respond to reasonable written
requests from any Participant for
43
information not otherwise provided
pursuant to this Agreement regarding
Nuclear Operating Services for Each
Plant. The Operating Agent will
designate a person to be responsible for
being responsive to inquiries from the
Participants.
11) Incentive Compensation Plan - Operating
Agent shall provide to each member of
the Board a copy of the incentive
compensation plan for its employees
described in Section 2.7.1 of the
Nuclear Operating Agreement and, with
respect to each amendment or revision of
such plan, Operating Agent shall
consider any comments as may be offered
by the Board or such member respecting
such plan, but shall have full authority
to implement such plan when in its sole
discretion it decides it is appropriate
to do so.
Notwithstanding any other provision of this Agreement, the
Operating Agent shall not provide copies of or access to
Safeguards Information, as defined in 10 CFR Section 73.2, to any
44
member of the Board, or to any Participant or its employees,
agents or contractors unless the Operating Agent is reasonably
assured that the provision of such copies or access will not
violate 10 CFR Section 73.21 and the person receiving such copies or
access can and will comply with paragraphs (b) through (i) of 10
CFR Section 73.21. Information supplied to any member under this
Agreement shall not be used in any manner that (a) would
compromise any part of the safeguards plan for Each Plant, or (b)
would be in contravention of applicable governmental regulations.
Information requested by a Participant may not be refused on the
grounds that a vendor, contractor or consultant claims such
information to be proprietary if such Participant agrees to
execute an agreement satisfactory to any such vendor, contractor
or consultant to protect such information from unwarranted
disclosure.
5.1.2 Formal Non-routine Information. Information
in this category which is time sensitive and
shall be promptly provided by the Operating
Agent to the Participants includes:
information on work disruptions or stoppages,
and Notices of an Unusual Event, Alert, Site
Area Emergency, or General Emergency (as such
terms are defined in the emergency plan for
Each Plant). The Operating Agent shall also
inform the Participants and the dispatcher of
45
the power and energy generated by Each Plant
as soon as practical, or in accordance with
guidelines acceptable to the Nuclear Managing
Board, after the occurrence at Each Plant of
any unplanned outage of a unit, any
significant extension of a planned unit
outage, any unplanned reduction in the
capacity of a unit for an extended period, or
any event or regulatory action which may
substantially affect the operation of Each
Plant. Information in this category also
includes informal reports concerning events
which the Operating Agent believes may result
in public interest or may lead to inquiries
to Participants by members of the public, and
news releases issued by the Participants'
Agent, the Operating Agent or the Nuclear
Services Contractor.
Southern Nuclear shall inform the Nuclear
Managing Board of any plan to change the
organizational structure of Southern Nuclear
to the extent that such change in any way
effects the Southern Nuclear personnel who
are dedicated to Each Plant and will consider
any comments made by the Board, or any member
46
of the Board, respecting such plans, but
shall have full authority to implement such
plans when in its sole discretion it decides
it is appropriate to do so.
Southern Nuclear shall also inform the
Managing Board of any plans to replace (1)
the individual occupying the position of
General Manager of Each Plant on the
effective date of the Nuclear Operating
Agreement, and the successors of such
replacement, and (2) any Southern Nuclear
officer having responsibility, on the
effective date of the Nuclear Operating
Agreement, for only Plant Hatch, only Plant
Vogtle, or only Plants Hatch and Vogtle, and
the successors of such replacement. The
Managing Board shall review and the Board, or
any member of the Board, may provide input to
Southern Nuclear prior to the replacement of
such individuals and shall be afforded
access, on request, to Southern Nuclear's
chief executive and senior nuclear operations
officers and the Board of Directors or any of
them; provided, however, that Southern
Nuclear shall have full authority, in its
47
sole discretion, to make such replacements as
it deems appropriate following such review,
input and access by the Board; and provided
further that such review, input and access
shall not be required with respect to any
replacement made on a temporary or interim
basis to fill any vacancy which arises as a
result of any occurrence (e.g., injury,
promotion, dismissal or resignation).
5.1.3 Informal Information. Information in this
category includes informal communications
between representatives of any Participant
and the Operating Agent's employees of a
general nature and access by such
representatives to routine reports and
records on plant operations and conditions
that are normally readily available at Each
Plant.
5.2 Access to Plant Hatch and Plant Vogtle.
5.2.1 Each Participant shall be given the
opportunity to have a reasonable number of
representatives located at Each Plant ("Site
Representatives") for the purpose of
48
observing and reporting to such Participant
on plant conditions and activities.
Reasonable office space and facilities will
be made available to such Site
Representatives. If a Participant elects to
place representatives on site, such
Participant will re-evaluate periodically the
need for such onsite representation, and if
the Participant determines that there is no
longer a need for such onsite representation,
the Participant will suspend its onsite
representation.
5.2.2 It is a mutual objective of the parties to
create and maintain a harmonious working
environment so that plant management
attention is not diverted from the
responsibilities of safe and efficient
operations of the plant. Since a Participant
can unilaterally exercise its right to have a
reasonable number of Site Representatives at
Each Plant, it shall be the duty of any
Participant that exercises such right to
assure that each of its Site Representatives
shall cooperate fully with plant management
in achieving such mutual objective. In the
49
event that plant management reasonably
considers that the conduct of any Site
Representative is not conducive to achieving
such mutual objective, the Operating Agent
may bring such matters to the attention of
the management of the Participant which has
designated such Site Representative and
request that appropriate measures be taken by
such Participant to achieve such mutual
objective. The management of such
Participant in response to any such request
shall thereupon take such measures, including
at its discretion replacement of such Site
Representative, as it deems appropriate to
achieve such mutual objective. If issues of
a continuing nature arise involving any Site
Representative, the Managing Board will
review the circumstances and make
recommendations as appropriate to the Site
Representative's Participant or to the
Operating Agent.
5.2.3 As a matter of professional respect and
courtesy, and in order to promote good
relations with the personnel on site, Site
Representatives of any Participant will be
50
invited to attend educational, professional
and recreational functions at Each Plant. In
order to assure that they are kept informed
about management activities, Site
Representatives will be provided copies of
daily, weekly and monthly reports on plant
operations that are routinely distributed to
all plant management level personnel. Upon
initial assignment, a new Site Representative
will be invited by the plant manager to
attend as an observer, one of each type of
routine management meetings, except those
devoted to personnel matters and staff
working meetings involving conflict
resolution activities where Site
Representative presence would be obviously
inappropriate that may be held on site,
including without limitation meetings of any
oversight group such as the Plant Review
Board, Independent Safety Engineering Group,
Safety Review Board and ALARA Committee.
Thereafter, such Site Representative may
attend any meeting other than (i) such
personnel or conflict resolving meetings, and
(ii) any other meetings that the General
Manager at Each Plant or his senior
51
management shall reasonably request such Site
Representative not attend. If the management
of the Participant represented by Site
Representatives disagrees that the closure of
meetings or types of meetings was reasonable,
then the management of such Participant may
request the management of the Operating Agent
to review the matter. If the management of
the Operating Agent concludes that the
closure of such meetings was not based on
reasonable grounds, the Participant's Site
Representative shall be permitted to attend
such meetings. If the management of the
Operating Agent concludes that the closure
was reasonable, and the management of such
Participant still disagrees, the matter may
be referred to the Managing Board for review
and recommendations.
5.2.4 Any Participant shall have the additional
right to have its representatives and guests
visit Each Plant, with prior approval of the
Operating Agent, to tour the facilities and
observe plant activities; provided that such
visit and tour will not interfere with the
operation of the plant, plant safety, or
52
security. Such representatives and guests
shall comply with all applicable rules and
regulations in effect at the plant whether
imposed by Governmental Authority or by the
Operating Agent.
5.3 Management Audits. Each Participant shall have the
right to conduct management audits, at its own cost, of the
performance of the Participants' Agent, the Operating Agent and
the Nuclear Services Contractor either by such Participant's own
officers and employees or by its duly authorized agents or
representatives, including without limitation any auditor
utilized by such Participant, or any nationally recognized
accounting firm designated by such Participant or by the
Administrator of the Rural Electrification Administration. The
Participants' Agent, the Operating Agent and the Nuclear Services
Contractor shall cooperate with such Participant in the conduct
of such audits and, subject to the applicable regulations of the
NRC and the requirements of vendors, give such Participant's
representatives reasonable access to all contracts, records, and
other documents relating to Each Plant. Following any such
management audit, the Participants' Agent, the Operating Agent or
the Nuclear Services Contractor shall respond to the findings of
such audit if requested to do so by such Participant. Management
audits by individual Participants shall be coordinated and
53
scheduled through the Participants' Agent so as to minimize the
number of audits required.
5.4 Cost Audits. In addition to the right to conduct
management audits pursuant to Section 5.3 hereof, each
Participant shall have the right to conduct, at its own expense,
audits of the costs of Agency Functions, Operation and
Maintenance Services, New Investment Services and Fuel Services
and any other costs charged to and paid by such Participant. To
enable each Participant to conduct such audits, the Participants'
Agent, the Operating Agent and the Nuclear Services Contractor
will provide, during normal business hours and subject to
conditions consistent with the conduct by the Participants'
Agent, the Operating Agent and the Nuclear Services Contractor of
their respective responsibilities, any Participant, its officers,
employees, agents or representatives, including without
limitation any auditor utilized by such Participant, or any
nationally recognized accounting firm designated by such
Participant or by the Administrator of the Rural Electrification
Administration, with access to books, records, and other
documents of the Participants' Agent, the Operating Agent and the
Nuclear Services Contractor related to their respective
performance (including, without limitation, all Services Plans,
the Nuclear Interface Procedure and agreements between Southern
Nuclear and any of its affiliates, and any amendments to the
foregoing) and, upon such Participant's reasonable request,
54
copies thereof, which set forth (a) costs applicable to Operation
and Maintenance Services, New Investment Services, Fuel Services,
and other costs for Each Plant to the extent necessary to enable
the auditors of such Participant to verify that the costs have
been properly billed to the Participants' Agent or to such
Participant pursuant to the provisions of applicable agreements,
and (b) matters relating to the design, construction and
operation and retirement of Each Plant in proceedings before any
Governmental Authority having jurisdiction.
5.5 Civil Penalties and Meetings. In each case when a
civil penalty is assessed against the Operating Agent, the
Operating Agent shall provide the members of the Nuclear Managing
Board with a description of the violation, the root cause
determination of the violation, and the corrective action taken
and to be taken to avoid repeat violations. The Board upon its
request will be provided the opportunity to meet with the
Operating Agent's chief executive and senior nuclear operations
officers, the Board of Directors or both. The Operating Agent
will provide for the Board to meet on the Board's request with
the Board of Directors of the Nuclear Services Contractor.
ARTICLE VI
6.0 Recovery of Costs. Any costs incurred by Southern
Nuclear as the Operating Agent that would have been recoverable
55
from the Participants by GPC under any applicable Participation
Agreement shall be recoverable from the Participants subject to
the rights of the Participants under such agreement to audit and
contest such costs incurred by Southern Nuclear and all remedies
provided therein shall be available in the event any Participant
shall default in the payment of such costs.
ARTICLE VII
7.0 Relation To Existing Agreements. This Agreement, the
Nuclear Services Agreement and the Nuclear Operating Agreement
are not intended to nor do they modify, amend, or terminate any
of the Participation Agreements and do not otherwise alter or
impact rights and obligations of the Participants under any such
agreements, including, without limitation, the obligations to
make payments; the remedies for defaults; the authority and
obligation to insure Each Plant; the authority to establish
levels of output, to schedule and meter output; entitlements to
output; authority to establish retirement dates for Each Plant;
authority to repair (following substantial damage or
destruction), replace or make additions to Each Plant; the
authority to salvage, dispose and decommission Each Plant; the
property rights established by the applicable Participation
Agreements; and GPC's responsibility and authority as agent of
the Participants under such agreements. Specifically, nothing in
this Agreement or the Nuclear Services Agreement or the Nuclear
56
Operating Agreement or any other contract between GPC and
Southern Nuclear shall be construed or applied to impair GPC's
capacity to carry out its Agency Functions or to diminish or add
to (i) the liabilities of GPC, or (ii) the remedies of OPC, MEAG
and Dalton or any of them established by any of the several
Participation Agreements. Therefore, the acts or omissions of
employees of Southern Nuclear, including without limitation acts
or omissions which constitute a breach of the Nuclear Services
Agreement or the Nuclear Operating Agreement, as the case may be,
shall be deemed to be, and treated as though they were, acts and
omissions of employees of GPC and subject to (i) the same
defenses which GPC would have under applicable laws respecting
acts and omissions of its employees, and (ii) the same defenses
as GPC may have or remedies that OPC, MEAG or Dalton have under
the Participation Agreements that would have been applicable if
such acts or omissions had been performed by employees of GPC.
Nevertheless, so long as they are in effect, the audit,
observation and information provisions herein and the budget and
plan review and approval procedures contained herein shall
supersede the equivalent provisions of and procedures established
by the Participation Agreements. Accordingly, the Participants
agree that the provisions hereof supersede the following sections
of the following agreements:
1) Edwin I. Hatch Nuclear Plant Agreement of Construction
dated as of August 27, 1976 between GPC and MEAG, as
heretofore amended: Sections 2(h), 2(n), 3(c) and 3(f);
57
2) Alvin W. Vogtle Nuclear Units Numbers One and Two
Purchase and Ownership , Participation Agreement dated
as of August 27, 1976 among GPC, OEMC, MEAG and Dalton,
as heretofore amended: Sections 4(d), 5(e), and 9(m);
3) Alvin W. Vogtle Nuclear Units Numbers One and Two
Operating Agreement dated as of August 27, 1976 among
GPC, OEMC, MEAG and Dalton, as heretofore or hereafter
amended: Sections 3(c) (other than the last sentence
thereof) 3(e), 3(k), 4(e), and 7(n).
For as long as they are in effect, the provisions herein
respecting Fuel Plans and Fuel Budgets, qualify and take
precedence over The Edwin I. Hatch Nuclear Plant Purchase and
Ownership Participation Agreement, dated as of January 6, 1975,
between GPC and OEMC, as heretofore amended: Section 5(i). For
as long as they are in effect, the provisions herein respecting
agreements and contracts between the Participants' Agent and the
Nuclear Services Contractor and between the Participants' Agent
and the Operating Agent qualify and take precedence over the
following:
The Edwin I. Hatch Nuclear Plant Purchase and Ownership
Participation Agreement, dated as of January 6, 1975,
between GPC and OEMC, as heretofore amended: Section
5(c) insofar as it authorizes GPC to contract with
itself or any of its affiliates;
The Edwin I. Hatch Nuclear Plant Operating Agreement, dated
as of January 6, 1975, between GPC and OEMC, as heretofore,
amended: Section l(d) insofar as it authorized GPC to
contract with itself or any of its affiliates;
The Edwin I. Hatch Nuclear Plant Purchase and Ownership
Participation Agreement between Georgia Power Company and
Municipal Electric Authority of Georgia dated as of August
27, 1976 as heretofore amended: Section 5(c) insofar as it
authorizes GPC to contract with itself or any of its
affiliates;
58
The Edwin I. Hatch Nuclear Plant Operating Agreement between
Georgia Power Company and Municipal Electric Authority of
Georgia, dated as of August 27, 1976 as heretofore amended:
Section l(d) insofar as it authorizes GPC to contract with
itself or any of its affiliates;
The Edwin I. Hatch Nuclear Plant Purchase and Ownership
Participation Agreement between Georgia Power Company and
City of Dalton, Georgia dated as of August 27, 1976 as
heretofore amended: Section 5(c) insofar as it authorizes
GPC to contract with itself or any of its affiliates;
The Edwin I. Hatch Nuclear Plant Operating Agreement between
Georgia Power Company and City of Dalton, Georgia dated as
of August 27, 1976 as heretofore amended: Section i(d)
insofar as it authorizes GPC to contract with itself or any
of its affiliates;
The Alvin W. Vogtle Nuclear Unit Numbers One and Two
Purchase and Ownership Participation Agreement, dated as of
August 27, 1976, among GPC, OEMC, MEAG and Dalton, as
heretofore amended: Section 4(b)(v); and
The Alvin W. Vogtle Nuclear Units Numbers One and Two
Operating Agreement, dated as of August 27, 1976, among GPC,
OEMC, MEAG and Dalton, as heretofore amended: Section 2(b).
No portion of any costs paid by GPC to the Nuclear Services
Contractor pursuant to the indemnification provision of the
Nuclear Services Agreement or to the Operating Agent pursuant to
the Nuclear Operating Agreement as a result of a judgment of any
court with competent jurisdiction against the Nuclear Services
Contractor or the Operating Agent, as the case may be, for any
breach of its no adverse distinction obligations under the
Nuclear Services Agreement or the Nuclear Operating Agreement,
respectively, shall be recoverable from OPC, MEAG and Dalton.
No portion of any payment made by GPC to Southern Nuclear
for costs incurred by Southern Nuclear for participation in
industry groups shall be payable by OPC, MEAG or Dalton unless
59
such participation costs when incurred were reasonably expected
to yield a present or future benefit, whether direct, indirect,
general or specific, to Plant Hatch or Plant Vogtle, or both.
ARTICLE VIII
8.0 Term, Termination, and Effective Date. Subject to
Section 9.1 hereof, this Amended and Restated Nuclear Managing
Board Agreement shall become effective upon the issuance by the
NRC of amendments to the operating licenses for Each Plant in
order to add Southern Nuclear to such licenses and to designate
Southern Nuclear as the exclusive operating licensee of Each
Plant and, unless terminated earlier as provided herein, shall
end on June 28, 2014; provided, however, that the term of this
Agreement shall be extended after June 28, 2014, from year to
year in a fashion coextensive with the continuation of Agency
Functions under any of the applicable Participation Agreements
and any successor agreements.
This Agreement shall be in full force and effect until the
expiration of its term as set forth above or until:
1) it has been superseded by a subsequent agreement; or
2) any Participant gives the other Participants ten years
advance written notice of its desire to terminate this Agreement,
but no such termination shall be effective before July 1, 2009;
or
60
3) upon termination of the Participation Agreements, if
prior to June 28, 2014.
ARTICLE IX
9.0 Miscellaneous.
9.1 Required Approvals. Notwithstanding anything in this
Agreement to the contrary, this Agreement shall have no force and
effect until (i) it is approved by the Administrator of the Rural
Electrification Administration unless such Administrator rules
that his approval is not required by law; and (ii) it is approved
by the Trustee under each MEAG bond resolution pursuant to which
MEAG's interests in Each Plant has been financed.
9.2 Further Assurances. From time to time the
Participants will execute such instruments, upon the request of
another Participant, as may be necessary or appropriate to carry
out the intent of this Agreement.
9.3 Governing Law. The validity, interpretation, and
performance of this Agreement and each of its provisions shall be
governed by the laws of the State of Georgia.
9.4 Notice. Any notice, request, consent or other
communication permitted or required by this Agreement shall be in
61
writing and shall be deemed given when deposited in the United
States Mail, first class postage prepaid, and if given to GPC
shall be addressed to:
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Attention: President
and if given to Oglethorpe shall be addressed to:
Oglethorpe Power Corporation
2100 East Exchange Place
P.O. Box 1349
Tucker, Georgia 30085-1349
Attention: President and Chief
Executive Officer
and if given to MEAG shall be addressed to:
Municipal Electric Authority of Georgia
1470 Riveredge Parkway, N.W.
Atlanta, Georgia 30328
Attention: President and General Manager
and if given to Dalton shall be addressed to:
The City of Dalton, Georgia
P.O. Box 869
Dalton, Georgia 30720
Attention: Chairman, Utilities
Commission
and if given to Southern Nuclear shall be addressed to:
Southern Nuclear Operating Company, Inc.
P. O. Box 1299
40 Inverness Center Parkway
Birmingham, Alabama 35201
Attention: President
unless a different address shall have been designated by the
respective Participant by notice in writing.
62
9.5 Section Headings Not To Affect Meaning. The
descriptive headings of the various Sections of this Agreement
have been inserted for convenience of reference only and shall in
no way modify or restrict any of the terms and provisions
thereof.
9.6 Time of Essence. Time is of the essence of this
Agreement.
9.7 Amendments. This Agreement may be amended by and only
by a written instrument duly executed by each of the
Participants.
9.8 Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon each of the Participants and
its respective successors and assigns.
9.9 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute
one and the same instrument.
9.10 Computation of Percentage Undivided Ownership
Interest. Except as may be provided by any Participation
Agreement and notwithstanding any other provision of this
Agreement, whenever, pursuant to any provision of the Agreement,
63
any action is required to be agreed to or taken by the Nuclear
Managing Board or the Participants as to Each Plant (i) only
those Participants not in default in the payment of any amounts
(together with interest, if appropriate) required under any
provisions of any applicable Participation Agreement at the time
such action is to be agreed to or taken shall have the right to
participate in such agreement or the taking of such action, and
(ii) wherever it is provided in this Agreement for approval or
disapproval by Requisite Owner Action, the approval or
disapproval, as the case may be, of those Participants not in
default which collectively own Undivided Ownership Interests in
the aggregate proportion of not less than 85 percent of the sum
of the Undivided Ownership Interests of all non-defaulting
Participants shall be required.
9.11 Several Agreements. Notwithstanding anything to the
contrary set forth herein, the agreements and obligations of the
Participants set forth in this Agreement shall be the several,
not the joint, agreements and obligations of the Participants.
9.12 Confidentiality. Realizing that publication of
information furnished hereunder by one Participant to the others
may detrimentally affect the furnishing Participant, the
Participants pledge to each other to keep confidential all such
information furnished and bearing the legend "Proprietary
Information" except with the written consent of the furnishing
64
Participant or except when otherwise required by Governmental
Authorities, including without limitation the Rural
Electrification Administration, having appropriate jurisdiction.
In the furtherance of this understanding, the receiving
Participant shall obtain, and provide to the furnishing party, a
written pledge to this effect from non-member employees, agents
and other representatives to whom such data is disclosed and, if
such non-member is not a full-time, salaried employee of a
Participant, from such non-member's employer. At the specific
request of the other party, the disclosing party will endeavor to
secure the agreement of such Governmental Authority to maintain
specified portions of such information in confidence. Public
dissemination of information by the furnishing Participant before
or after it is furnished shall constitute a termination of the
confidentiality requirement as to that specific information.
9.13 Effect on Joint Committee Agreement. As of the
effective date of this Agreement and while this Agreement is in
effect, this Agreement shall supersede the Joint Committee
Agreement, as amended, with respect to all matters affecting
Plant Hatch or Plant Vogtle.
9.14 Arbitration. In the event a dispute arises among the
Participants with respect to the implementation of this Agreement
and the members of the Nuclear Managing Board and the chief
executive officers of the respective Participants cannot agree
65
upon a solution, then any Participant may at its option call for
the submittal of any such dispute to non-binding arbitration in
accordance with the following procedures:
9.14.1 The Participant calling for arbitration shall
give written notice to all other
Participants, setting forth in such notice in
adequate detail the nature of the dispute,
the amount or amounts, if any, involved in
such dispute, and the recommendation sought
by such arbitration proceedings, and, within
twenty days from receipt of such notice, any
other Participant may, by written response to
the first Participant and all other
Participants, submit its statement of the
matter at issue and set forth in adequate
detail additional related matters or issues
to be arbitrated. Thereafter, the
Participant first submitting its notice of
the matter at issue shall have ten days in
which to submit a written rebuttal statement,
copies of which shall be given to all other
Participants. Within forty days following
delivery of the written notice pursuant to
Section 9.14.1 hereof, the Nuclear Managing
Board shall meet for the purpose of selecting
66
arbitrators. Each member of the Board shall
designate one arbitrator (hereinafter
"Designated Arbitrator"). The Designated
Arbitrators shall meet within twenty days
following their designation and shall select
an additional independent arbitrator
(hereinafter the "Independent Arbitrator").
If the Designated Arbitrators shall fail to
select an Independent Arbitrator within said
twenty day period, then the Designated
Arbitrators shall request from the American
Arbitration Association (or a similar
organization if the American Arbitration
Association should not at the time exist) a
list of arbitrators who are qualified and
eligible to serve as hereinafter provided.
The Designated Arbitrators selected by the
Participants shall take turns striking names
from the list of arbitrators furnished by the
American Arbitration Association, and the
last name remaining on said list shall be the
Independent Arbitrator. The Independent
Arbitrator shall be a person skilled and
experienced in the field which gives rise to
the dispute, and no person shall be eligible
for appointment as the Independent Arbitrator
67
who is an officer, employee, or agent of any
of the parties or any affiliate of any of the
parties to the dispute or is otherwise
interested in the matter to be arbitrated.
9.14.2 Except as otherwise provided in this Section
9.14, the arbitration shall be governed by
the rules and practice of the American
Arbitration Association (or the rules and
practice of a similar organization if the
American Arbitration Association should not
at that time exist) from time to time in
force, except that if such rules and
practice, as modified herein, shall conflict
with state or Federal law then in force which
are specifically applicable to such
arbitration proceedings, such law shall
govern.
9.14.3 The arbitrators shall hear evidence submitted
by the respective Participants and the
Independent Arbitrator may call for
additional information, which additional
information shall be furnished by the
Participant having such information. The
recommendation of the arbitrators respecting
68
the dispute shall be determined by the
Independent Arbitrator with the concurrence
of not less than one of the Designated
Arbitrators if there are only two of them or
two of the Designated Arbitrators if there
are more than two of them.
9.14.4 The recommendation of the arbitrators shall
not be binding upon the Nuclear Managing
Board or the Participants, nor shall the
participation of any member of the Board or
any Participant in the arbitration be deemed
to constitute a waiver of any right,
authority, obligation or remedy of such
Participant, under this Agreement or any
Participation Agreement.
9.14.5 Costs incurred by all of the arbitrators in
conduct of any arbitration and the
compensation paid to the Independent
Arbitrator shall be paid as follows:
1) In the event the recommendations of the
Independent Arbitrator are adverse to
the Participant or Participants that
initiated the arbitration then all of
69
such costs and compensation shall be
paid by such Participant or
Participants; provided that if two or
more Participants have joined in the
initiation of such arbitration, they
shall share in the payment of such costs
and compensation as they shall agree.
2) In the event the recommendations of the
Independent Arbitrator are favorable to
the Participant or Participants that
initiated the arbitration, then each of
the Participants that would be affected
by the implementation of such
recommendations shall pay a
proportionate share of such costs equal
to its joint ownership share in Each
Plant divided by sum of the joint
ownership shares in Each Plant of all
Participants that are so affected.
9.14.6 All costs incurred by any Participant in
participating in any arbitration shall be
borne and paid by such Participant without
recourse against any other Participant,
except in the event that the Independent
70
Arbitrator shall find that any claim of the
Participant or Participants that initiated
such claim was frivolous or totally without
merit, then such initiating Participant or
Participants shall reimburse each other
Participant for its costs reasonably incurred
in its defense against such claim.
9.14.7 No arbitration shall delay performance in
accordance with the Nuclear Operating
Agreement, any Participation Agreement, this
Agreement or any successor agreements with
respect to Plant Hatch or Plant Vogtle, or
otherwise affect rights arising under any
such agreements.
9.15 Accounting Methodology. The agreements reached by the
Joint Committee, as reflected in (i) the minutes of the Joint
Committee meetings held on August 2, 1984, respecting the
methodology for computing GPC's A&G expenses, and on April 18,
1983 and April 15, 1985, respecting the 180-Day Rule, (ii) the
minutes of the Joint Subcommittee for Finance and Accounting
meeting held November 13, 1986, respecting billing methodology
for nuclear fines, (iii) the minutes of the Joint Subcommittee
for Power Generation meeting on February 27, 1988, respecting
Joint Owners Revenue Allocations and Plant Hatch inventory
71
accounting methodology, (iv) the January 18, 1990, revision to
the A&G methodology, (v) the May 8, 1979, Compromise and
Settlement Agreement between GPC and MEAG, and (vi) the minutes
of the Joint Subcommittee for Finance and Accounting meeting on
February 12, 1991, respecting A&G methodology, all of which shall
remain in effect insofar as they apply to Plant Hatch or Plant
Vogtle until such time as such agreements shall be amended,
modified or revoked by the Board, or by GPC and the effected
Participants, as appropriate.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized
officers and their respective seals to be affixed as of the day
and year first above written.
GEORGIA POWER COMPANY
By:________________________
Attest: Its:_______________________
_______________________
Secretary
OGLETHORPE POWER CORPORATION
By:________________________
Attest: Its:_______________________
_______________________
Secretary
72
MUNICIPAL ELECTRIC AUTHORITY OF
GEORGIA
By:________________________
Attest: Its:_______________________
_______________________
Secretary
CITY OF DALTON, GEORGIA
By:________________________
Attest: Its:_______________________
_______________________
Clerk
BOARD OF WATER, LIGHT AND SINKING
FUND COMMISSIONERS
By:________________________
Attest: Its:_______________________
_______________________
Clerk
73
APPENDIX "A"
STANDARDIZED GUIDELINES FOR MAINTENANCE
AND REFUELING OUTAGE SCHEDULES
On or before August 15 of each calendar year, the Operating
Agent shall prepare and submit to each Participant a written
scheduled outage plan for each unit of Each Plant to be used in
the Fuel Optimization and Evaluation System process for the
ensuing five calendar years.
Each plan shall describe in reasonable detail the estimated
time and duration of each outage.
Should any major changes be made to the maintenance and
refueling schedules within a calendar year, the Operating Agent
shall provide each Participant with a revised schedule.
STANDARDIZED GUIDELINES FOR
ENERGY ESTIMATES BY UNIT
On or before August 15 of each calendar year, the Operating
Agent shall prepare and submit to each Participant a written
energy estimate for each unit of Each Plant as currently
presented in the energy budget. This energy estimate shall be
for the ensuing five calendar years for such units. The energy
estimate shall project the estimated operating level of each unit
during such period based on economic dispatch. The estimate will
be developed utilizing the best available data at the time.
74
STANDARDIZED GUIDELINES FOR OPERATION
AND MAINTENANCE BUDGET
On or before August 15 of each calendar year, the Operating
Agent shall prepare and submit to each Participant a written
budget estimate of the costs of Operation and Maintenance
Services (other than fuel) anticipated to be incurred for the
ensuing five calendar years for each unit of Each Plant. Each
budget estimate shall contain those expected costs which are
anticipated to be chargeable, under the terms of one or more of
the Participation Agreements, to such units including outage
costs. Each budget also shall separately identify those costs
which are anticipated to be incurred by Southern Nuclear pursuant
to agreements with any of its affiliates. Each budget estimate
to be submitted under this subsection shall be based on
information reasonably available.
Each budget shall be supported by detail reasonably adequate
for the purpose of each party's review thereof and shall be
formatted such that for the next calendar year each month's
estimated costs are listed by applicable FERC account numbers.
In addition, a report on materials and supplies purchases
should be provided for the next calendar year.
75
STANDARDIZED GUIDELINES FOR NEW INVESTMENT BUDGETS
On or before August 15 of each calendar year, the Operating
Agent shall prepare and submit to each Participant of such
jointly-owned plants and associated switchyards a written budget
estimate of the costs of New Investment Services (other than
nuclear fuel) anticipated to be incurred during the next calendar
year at such plant. Also to be included in the New Investment
Budget estimate are any associated projects which may be charged
to a Participant on the basis of its ownership pursuant to one or
more of the Participation Agreements. This budget estimate is to
consist of project expenditure ("PE") sheets for each project and
a FERC distribution table for each PE. For the five-year
forecast period, a summary of estimates of capital expenditures
and retirements will be provided.
Each budget estimate to be submitted under this subsection
shall be based on information reasonably available. Each budget
estimate shall be supported by detail reasonably adequate for the
purpose of each party's review thereof. The budget shall be
formatted such that each month's estimated costs are listed by
applicable FERC account number.
76
STANDARDIZED GUIDELINES FOR FUEL PLANS
On or before September 15 of each calendar year, the
Operating Agent shall prepare and submit to each of the
Participants a ten-year fuel management plan for each unit of
Each Plant. Each Fuel Plan shall describe in reasonable detail
each action or contemplated action and payment and the dates
thereof, core usage and design burnup, estimated fueling dates
and the energy expected to be generated by each unit for each
fuel period of the Fuel Plan, a cash flow analysis of forecasted
expenditures and credits for each Participant for each major
component of the fuel cycle by years, for the ten-year period
covered by the Fuel Plan, and cash flow by months for the first
five years of such ten-year plan period. The Operating Agent may
amend the Fuel Plan from time to time as it deems appropriate and
shall deliver to each of the Participants a copy of such amended
Fuel Plan.
A narrative of expected activity for the ensuing calendar
year at Plants Hatch and Vogtle should be provided.
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